Margaret Wanjiru Ndungu v Sammy Wagura Karanja [2015] KEHC 536 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL APPEAL CASE NO. 464 OF 2014

MARGARET WANJIRU NDUNGU.......................................APPELLANT

-VERSUS-

SAMMY WAGURA KARANJA...........................................RESPONDENT

RULING

By a notice of motion dated 14th January 2015 and filed in court on 27th January 2015, the appellant /applicant Margaret Wanjiru Ndung’u seeks from this court orders:

1. Spent

2. That  pending  the hearing and determination of this appeal  an order of  injunction  do issue to  restrain the respondent  from selling  or transferring  the interests  or business  shop on LR No. Block 76/32, restaurant  on LR Block 75/1054  namely the Docs Pub  and Club, Bar and  Restaurant  on LR Block  75/1004 and 1004  and 1005  namely  Our Times Bar and Restaurant  and a car wash business on plot No. 93/1248.

3. That pending the hearing and determination of the appeal a mandatory injunction order do issue directed to the respondent   to allow the appellant to access the business that they own jointly namely business shops on LR No. Block 76/32, restaurant  on LR Block 75/1054 namely the  Docs Bar and Restaurant  on LR Block 75/1004 and 1005  namely Our  Times Bar  and Restaurant  and a car wash  business  on plot No. 93/1248.

4. That pending the hearing and determination of the appeal accounts be taken by an independent accounting firm as from August 2013 to determine the income from the joint business in business shops on LR NO. Block 76/32, restaurant  on LR Block 75/1054  namely  the Docs Pub, bat and  restaurant  on LR Block 75/1004 and  1005  namely Our Times  Bar and  Restaurant   and a car wash  business  on Plot No. 93/1248 and the respondent be ordered  to deposit  in court 50%  of the profits  and or income.

5. That costs of this application be provided for.

The application is predicated on the grounds that:

a. The defendant has intimated his intention to change the state or status of the joint business by incorporating third parties.

b. Unless the order of injunction is issued the appellant shall be occasion substantial loss.

c. The appeal herein may be rendered nugatory if the application is not granted.

d. From August 2013 the respondent has not earned   any income from joint businesses.

e. As a result of the decision   from the subordinate court, the appellant is unable to access the joint business despite her being a joint owner.

The application is also supported by the affidavit sworn by the applicant appellant Margaret Wanjiru Ndung’u on 27th January 2015.  The appellant/applicant deposes that the lower court issued orders barring the parties hereto from having any contact with one another or communicating with one another directly except through their respective counsels.

According to her, at the time of  filing her  application in the lower court for  injunction  she had  misplaced all her documentation  file relating  to the various businesses that she had had and upon  getting them she managed to  identify the various joint  business  on the LR Block 76/32, 75/1054, LR Block 75/1004 and 1005 and plot 93/1248 and that  since  August  the respondent  had been  running the businesses without her  involvement  as a result of his violence  against her.

Further, that she therefore  sought  orders  for  review of the  orders  made by the lower court on 3rd December 2013  and  also for  an order  to be allowed  to access  the joint businesses  but the court  dismissed the said application  on 10th April 2014  prompting   her to file this appeal and hence this application  seeking the orders herein.  The applicant also filed a supplementary affidavit on 17th March 2015 annexing   pleadings in the lower court to wit plaint, Notice of Motion, amended notice of motion and ruling of the subordinate court dismissing her applications for review and deposing that the respondent had not filed any defence in the lower court.

The respondent  opposed the application  and filed grounds of objection  dated 15th May 2014  and replying  affidavit   sworn of 15th May  2015  contending that  the application is  misconceived, bad in law; frivolous and  vexatious and has  no merit; it is  an  afterthought  and in bad faith, and there is  inordinate  unexplained  delay.  It is further contended that the dismissed application  was for  review  whereas  the  one before  this court is  one for  an injunction; The orders sought  have absolutely no bearing  with the prayers in the main suit   pending in the lower court  CMCC 2978/2013  which is  for general damages  and special damages arising  out of an alleged assault  of the  appellant  by the respondent  in January 2009  and January 2013; That order  42 Rule  6  of the court limits the  jurisdiction of this appellate  court for giving stay of execution  but  the application  herein is not  one for stay; and  that the application  herein is not supported  by cogent  facts and evidence.

In the respondent’s sworn affidavit, he provides a detailed historical background of the suit in the lower court  culminating into  the consent  order given on 3rd December  2013   in the presence of both parties  ably  represented  by their  respective  advocates.  The respondent  further deposes that a consent  order  cannot be   set aside  except  by another  consent   or  where there is proof  of  fraud, undue  influence  or misrepresentation.

Further, the respondent  deposes that  this application  is misconceived  since the orders  sought  are  totally different  from the main  cause of action pending  in the lower court; and  that there is a delay  in filing this  application hence, an afterthought and reiterates  the grounds that the appellate  court can only grant stay of execution under Order  42 Rule  6 and  not an injunction  which was  never sought  for in the first instance.  He prayed for dismissal of the application with costs.

The parties  agreed to dispose of  the application way of  written submissions   with the applicant filing hers on 17th March 2015  and the respondent filing his  on 18th May 2015  and this  court is now called  upon to determine  this application  based on  those submissions.

The applicant’s submissions  dated 17th March 2015  mirror the averments  in the application, grounds in support  thereof, the supporting and supplementary affidavits  which I have  reproduced in this ruling  above.

On the other hand, the respondent’s submissions mirror the grounds of objection and replying affidavit whose contents I have replicated above.

None of the parties relied on any decided cases.

I have carefully considered the application as presented, the responses thereto and the parties’ respective rival submissions.

Basically, the applicant’s application seeks  for injunctive  orders against the respondent: whereas the gist of  the  respondent’s opposition is that this  court has no jurisdiction to grant  injunctive orders  which were never  sought in the lower court and  that it can only stay execution  of the orders of the lower court  pending appeal  and no more. Further, that the application has been made with unexplained undue  delay, is misconceived and lacks  merit, further, that the order appealed  from was from a review application wherein the trial magistrate refused  to set  aside consent  order and that  the court has  no jurisdiction  to set aside  consent  judgment  in the  absence  of evidence  of fraud  or misrepresentation.

According to the respondent, the applicant’s  application dated 16th September  2013  and  amended  on 24th September 2013 never  sought  orders regarding  joint business  ventures  with her  husband, the  respondent  herein and neither  did  she seek an order for accounts  to be taken of those joint  businesses  hence this application  seeks to expand  the original  claim as  pleaded  in the plaint  through  the back door  without  following the  right procedures for amendment  of pleadings.

From the two rival positions advanced by both parties, the main issues for determination are:

1. Whether the applicant/appellant is entitled to the orders sought.

2. What orders should the court make.

3. Who is entitled to costs of this application?

On the first  issue, it is clear that  the applicant  seeks for  injunctive   reliefs  as well as  an order for accounts  against the  respondent  pending  hearing and determination  of this appeal.  The reliefs relate to the running of joint  business  ventures, as opposed to the prayers  sought  in the plaint and the application dated  23rd May 2013   in the lower court  wherein the applicant sought orders  restraining the respondent  herein by himself, his servants  and or agents  from calling, visiting  and or coming  anywhere  near the plaintiff’s house, property or person, pending  inter  parties  hearing.

Subsequently on 16th September 2013 the applicant filed another application seeking orders for

“ That  an order do issue restraining  the respondent himself, his servants  and  or agents  from calling the plaintiff  on or sending  the plaintiff short text  messages  (SMS) to her  telephone, or visiting and or coming anywhere nearer than 50 meters  from the plaintiff’s houses, business premises, property  or person pending the interpartes hearing  and determination of this application.”

On 27th September 2013, the parties recorded a consent order which was adopted as an order of the court to the effect that:

“The   respondent  do and is hereby restrained  by himself , his servants  and/or agents from calling  the plaintiff  on or sending short text messages(sms)  to her telephone, or visiting  and or coming  anywhere nearer than 50 meters  from the plaintiff’s house, business  premises, property or person pending  inter partes hearing and determination of this application”

In addition, the lower court on 3rd December 2013 did make an order that:

1. That the plaintiff and the respondent  to keep away from each other  including  SMS  and telephone   calls   and any other form of contact  including   coming near each  other’s  residence  and the plaintiff not to visit   their joint  business  premises.

That all communication henceforth be through   their respective counsels.  It is  the above  order of 3rd  December 2013  which the applicant  sought by her application dated  14th March 2014 to be reviewed  to the effect that, inter alia .

2. The status quo of the joint businesses be maintained pending the hearing and determination of the application and or suit.

3. That the plaintiff be allowed access to the joint business premises.

4. That accounts  be undertaken  by an  independent  accounting firm as  from August  2013  to determine  the income  from the joint business  and the plaintiff  be compensated  and or paid  50% of the profit being her  interest  and share  in the business.”

The trial court dismissed the application for review vides a ruling dated 10th October 2014 thereby prompting this appeal and this application for injunction.

In the Memorandum of Appeal filed on 21st October 2014, the  appellant complains  among others, that the learned magistrate disregarded her interests  in the properties  in question; failed to  consider  that the effect  of his decision  was to take  away the appellant’s property  and at the same  time  gift  it to the respondent.

In my humble view, and upon consideration of the above matters, I find no nexus between the prayers for review and the application for injunction herein.

In my view, the appellant is seeking to establish a completely new cause of action on appeal through an application for prohibitive and mandatory injunctions.  These  prayers  were never  part of the  application before the lower court and  neither are  they based  on the substantive  prayers  sought  in the plaint.

If the appellant  found her  pleadings  in the lower court inadequate  to found  a proper claim, she  had the  liberty to  seek for amendments thereof and not to seek for  an amendment  through  an appeal process.

No substantive claim for  an order for  accounts  or  even a prayer  relating to the joint business  enterprises  was ever  pleaded  or made before  the trial  court.   It would therefore  be an abuse of  this court’s process  to make such  substantive  orders at this appellate stage  whish orders  are not  grounded on any pleadings before  the trial court.

In my view, the orders of prohibitory   and mandatory injunction and a prayer for accounts asked for are extraneous to the primary cause of action.  In addition,  the trial court dismissed  the  application for review and did not make any orders  for the  doing  or restraining  the doing of any  act and this court would not  have any jurisdiction  to entertain  an application for injunction which  was not made before the trial  court. In other  words  the orders  sought do not  relate to what  the lower court heard or decided hence  this court  has no jurisdiction to  establish   a new cause of action between the parties.

This court takes cognizance  of the first  principles that pleadings are designed  to  facilitate the setting  out of the parties’  claim with sufficient  particularity  to enable the adverse party to respond.  Accordingly, a party may not be permitted to raise a ground which is not pleaded because the respondent will not have an opportunity to rebut it.  It is  clearly  a matter of justice  of the case to see  that a party against  whom the  new  point is sought  to be taken is  not  prejudiced  by being  taken by surprise  at the new point on appeal  without  an opportunity to respond to the issue  and have  the facts investigated  by the trial court.  See Wachira V Ndanjeru [1987] KLR 252 per Platt JA.

In my view, it is not in the interest of justice to consider a new cause of action that was never pleaded as that would not give the respondent a fair trial.

In Girdhan Lal Vid yarthi V Ram Lakha [1957] EA 527 CA, the Court of Appeal held that the appellant could not be heard to allege an express trust when he had only pleaded a resulting trust before the trial court.

In this case, the orders  in the  lower court  were confined  to restraining  the  respondent  from contacting, including  coming near each other’s residence or calling the appellant  or visiting  their joint business  or her house.  The pleadings related to the above consent order.  She also prayed for special and general damages arising out of an alleged assault incident.

At most, the applicant would have sought for stay of execution of orders of the subordinate court.  She has not done so, and instead sought for injunctions that set out completely new causes of action from those sought both in the plaint and in the application for review before the subordinate court.  That is completely unacceptable, and such prayers are unavailable to the applicant, besides the application being fatally incompetent.  (See MohammedYakub & Another vs Mrs Badur Nasa Civil Application No. 285/99 Nairobi and HC Miscellaneous Civil 51/2013[2014] eKLR. R V Commission for Investigations & Enforcement Exparte Wananchi Group Kenya Limited.

Furthermore, albeit  the application is brought  under Order 42  Rule  6  of the Civil Procedure Rule and  Section 3A of the Civil Procedure Act, there is not a single prayer  for stay of execution or enforcement  of the orders  of 3rd December 2014, which this court would  have in the circumstances of this  case  considered  based on the grounds  upon which  it is sought  to be granted, and the  conditions espoused  in Order 42 Rule 6 (2)  of the Civil Procedure Rules.

In the instant case, there being no such application, it would be an exercise in futility to consider whether the grounds under Order 42 Rule 6 of the Civil Procedure Rules for grant of stay pending appeal have been fulfilled.

Albeit  this court has jurisdiction  under Order 42  Rule 6 (6) of the Civil Procedure Rules  to grant an  injunction pending an appeal from  a subordinate  court, in the exercise  of its appellate  jurisdiction, such injunction can only be  granted for  purposes of preserving  status quo and to prevent  the appeal, if successful, from being  rendered  nugatory as  was held in Madhupper  International Ltd V Ker [1985] 1 KLR  840 and in Charter House Bank  Ltd V Central Bank of Kenya  & Another  Civil Application No. 200 of  2006. Further, theprinciples  that apply for granting of injunctions on appeal are that the applicant  must show that  he or she  has an arguable  appeal  that is not frivolous  and secondly  that if  the order of injunction sought  is not granted, the intended appeal  will be rendered  nugatory, if it  eventually  succeeds See R V Kenya Anti Corruption  Commission & 2 Others ,[2009] KLR 31.

On whether this appeal is arguable, and without delving into the merits thereof, I have already pointed out what some of the grounds of appeal are.  Nonetheless the fact remains that the appellant herein never sought any prayers for mandatory injunction or even for an accounts to be taken relating to their joint business ventures with the respondent.  It is  therefore not  clear how she expected the trial court  to review  its orders  of 10th October  2014  to reflect  a position that   was never  substantively sought in  the prayers contained in the plaint  and in the  interlocutory application  before the  trial court.  If the  effect  of the order  of 10th  October 2014  was to take  away her  property  or rights  in the property jointly  owned by the applicant and  respondent, then that  fact was  never part of the issues  raised or determined  in the application before the trial court.

The appellant was granted her prayer which sought to injunct the respondent from calling; visiting and or coming anywhere near her house, property or person.  How that  position changed to the  issue of selling of transferring  the interests  or business shops, restaurant , bar and car wash  business and or accessing the said  business premises and or prayers  for accounts  to be undertaken  of the income  from the joint  business  is not clear.

I am, for that reason in agreement with the decision of the Court  of Appeal in Provincial Insurance Company  of EA Ltd Vs Mordecai Mwanga Nandwa CA 179/95 that where  the issue   was not pleaded  at the trial stage, the court  in the exercise of its  appellate  jurisdiction cannot be asked  to make  any order respecting  the said issue.

Furthermore, this court notes that the order   which the applicant appellant herein sought for review was made by consent of both parties.  To review, set aside or vary such an order, there must be either consent of both parties or evidence of fraud, misrepresentation or mistake. Such a consent order binds the parties to it the same way a contract binds parties to it.  Circumstances under which a consent  judgment  or order  may be interfered  with were clearly set out in the case of Brooke Bond Liebig (7) Ltd  v Maliya [1975] EA 266 that  prima facie, any order made  in the presence  and with  the  consent of counsel is binding   on all parties to the proceedings  or action and those  claiming  under them and cannot be  varied or discharged unless  obtained  by fraud  or collusion  or by an agreement  contrary  to  the policy of the court  or if the  consent was given without sufficient material  facts  or in misapprehension  or ignorance of material facts or in  general for  a reason which would  enable the court to set  aside  an agreement.

I have perused the Notice of Motion and record before the trial magistrate. It does not   disclose facts that prove any of the grounds for setting aside a consent judgment or order. In the instant appeal and  application, the applicant /appellant  has not alleged fraud, collusion or any of the reasons  that can justify the setting aside  of the consent order  made between the parties, that she  sought for review. As was held by the Court of Appeal in Samuel Wambugu Mwangi V Othaya Boys High School Nyeri CA 7 /2014 Per Visram, Koome and Otieno Odek JJA that :

“A consent order has a contractual effect upon the parties….”

For the foregoing reasons, without necessarily delving into the merits and demerits of the main appeal, it is my most considered view that the applicant has not demonstrated to the satisfaction of this court that her appeal as filed is arguable or that it stands to be rendered nugatory if successful and the orders sought are denied at this stage.

In the end, I decline to grant the orders sought in the application dated 14th January, 2014 and proceed to dismiss it with costs to the Respondent.

Dated, signed and delivered in open court at Nairobi this 14th day of October, 2015.

R.E.ABURILI

JUDGE