Mary Wambui Kamau, Catherine Njeri & Sylvia Gathoni T/A Mary Happy School Day Nursery School & The Mary Happy School v Richard Kirimi Kinoti [2015] KEHC 2659 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO.  122 OF 2013

MARY  WAMBUI KAMAU ………………….1ST PLAINTIFF

CATHERINE NJERI………….....2ND PLAINTIFF

SYLVIA  GATHONI T/A MARY HAPPY SCHOOL DAYNURSERY SCHOOL  & THE MARY

HAPPY SCHOOL …………………3RD PLAINTIFF

VERSUS

RICHARD KIRIMI KINOTI………………...DEFENDANT

RULING

By a Notice of Motion dated  8th September 2015  and filed in court  on 11th September 2015, the  1st plaintiffs Mary Wambui Kamau, Catherine Njeri  and Sylvia  Gathoni T/A Mary Happy  School Day Nursery  School and the Mary Happy School seeks  from this court orders  that the court  do  extend  the temporary  injunctive orders  issued on 22nd September 2014  by this court  by a further  12 months; and that  costs of  this application  be provided for.

The application  is predicated  on the grounds  that  the court did  on 22nd September 2015  issue  injunctive  orders restraining  the defendant  from alienating, using   the log books  as  security  or collateral for loans, transferring or interfering  with the ownership and  or possession of motor vehicles  registration No.  KAU 834Y, KAE 200F, KAC 827M, KBJ 710P, KAX 106L, KBH 248L, and Ex GK F 162; the defendant/respondent is restrained  from  entering  upon or interfering  with the  running of  the Mary Happy School and Mary Happy  Day and Nursery School  and their assets pending  the hearing  and determination  of  the suit and from interfering  with the plaintiff’s peace.

The injunctive orders above were to be in force for a period of 12 months from the date   of delivery of the ruling.  That thereafter the defendant filed an appeal challenging the above orders, to the Court of Appeal and sought a stay thereof and the application was heard.  The same  is pending ruling this term; that the orders issued  by the court  on 22nd September 2014  will lapse  by operation of law on 22nd September 2015; That the plaintiffs  have complied  with  all the pretrial requirements under Order 11  of the Civil Procedure Rule; that if the orders are not  extended, the plaintiff stands to be  greatly prejudiced  as the defendant  may  dispose  of the motor vehicles  and interfere with the operations of the schools; and that  it is  in the interest  of justice  that the  defendants  continue  to be restrained  from,  in any  way dealing with the assets  of the schools  or entering into and interfering  with the running of the schools so  as to preserve the substratum  of the case.  The said application is further supported  by the affidavit  sworn by Mary Wambui Kamau  the 1st plaintiff/applicant, restating  the grounds stated  above, and  which  I need not  reproduce repetitively.  She  annexes copies  of the order or 22nd September  2014, pleadings  in the Court of Appeal and  the statement  of issues  and pretrial questionnaire filed  pursuant  to Order 11 of the  Civil Procedure Rules.

The defendant/respondent  opposed the application by the 1st plaintiff  and filed grounds of objection/opposition  dated 17th  September  2015  and filed on 21st September 2015 contending that the application lacks  merit and is an abuse of the court process; that no sufficient  reasons have been shown  why the injunctive orders  ought to be extended, the plaintiff’s application is mischievous  and is only  bent on  depriving the defendant his  rights  as a partner  of the school and an owner  of where the subject  school stands; the subject  matter in dispute  being the  school is being single handedly managed  by the 1st plaintiff hence leaving  no one  to safeguard  the interests of  the defendant as partner  and owner; and that the 1st, 2nd  and 3rd plaintiffs  have been  benefiting  to the exclusion  of the defendant  hence  he continues to suffer irreparable  loss and damage  if the injunctive  orders  are further extended.

The parties’ advocates canvassed  the application orally on 21st September 2015 and owing to the fact that  the orders  whose extension was being  sought are  lapsing  on 22nd September 2015, this court  had no option but to  remain dedicated to delivering  expeditious  justice  to prevent  the ends of justice  to be defeated, taking into account all the matters  canvassed  in the application, grounds  affidavit and annextures  and grounds of  opposition filed by the defendant/respondent.

The applicant represented  by Mr Anzala  advocate submitted, reiterating the contents of the application, grounds  and relying on the supporting affidavit  of the  applicant, urging  this court to exercise its discretion  in favour of the applicant and extend  the  orders of injunction granted on 22nd September 2014 by a further one year.

In his view,  the court already found  that the plaintiff had  made out a prima facie  case against  the defendant, with a probability  of success and that the delay  in having  this suit  heard and determined  within the  said 1 year from 22nd September 2014  was not  occasioned by the plaintiffs  who complied  with pretrial requirements and that the  defendant had not  complied with the  said requirements under Order 11 of the Civil Procedure  Rule, besides  filing an appeal  to the Court of Appeal which mater  is pending  a ruling.

Mr Anzala  also submitted that the  applicant did seek leave and  was  granted  leave to amend  the plaint after  which the defendant  also amended  the defence and filed a  counterclaim, with the plaintiff filing reply to  defence and defence to counterclaim on  20th July 2015  hence,  the plaintiff cannot  be faulted  for not having the suit disposed of within 12 months as no hearing date  could be obtained  before 22. 9.2015.  He  stated that  his clients  were not  seeking to relitigate issues  that  were  canvassed  before Ougo J giving rise to  the ruling of 22nd September  2014, but were following  the procedures  laid down and  were amenable to any  conditions  that this  court may give in the exercise of its  discretionary power.

In opposition to the application, M/S Machio counsel for the defendant/respondent submitted, relying on the grounds of opposition  filed on behalf  of her client  contending  that the  provisions  of Order  40 Rule 6 of  the Civil Procedure Rules  are couched  in mandatory terms  and that  it follows that  this  court cannot extend an order  of injunction beyond one year since it lapses.  counsel  maintained  that the  subject  matter  of the dispute  being  a school, the defendant  has been  and will be prejudiced if the  orders of injunction are extended since he is not benefitting  from  thereon and neither is he allowed to  manage  the affairs of a school  which he co-owns  with the 1st applicant.

M/S Machio contended that the defendant   had complied  with the pretrial  requirements  by filing  witness statements  and documents  hence failure to file pretrial  questionnaire  or issues  for determination  was immaterial.  She  maintained  that  this application was only brought upon  realization  that the injunctive  orders were about  to lapse, with the intention  of making the defendant  suffer  irreparable loss since the  1st plaintiff continues  to control the property of the school.  M/s Machio urged the court to discharge the injunction since  the plaintiff  had ample time to ensure that the suit is  heard within 12  months  or seek an early extension of orders of injunction.

I have carefully considered the  application herein, the grounds of opposition  and able submissions  by Learned Counsels for the  respective parties.

None of  the parties’ advocates  referred  this court to any precedents.

Nonetheless, this court  is deemed to know the law and  precedents  if any are available and applicable to a particular issue in dispute.

The only issue for determination  is  whether   the plaintiff has proffered  to this court sufficient reasons why  the injunctive orders issued on 22nd September  2014 should be extended as contemplated  in Order  40 Rule 6 of the Civil Procedure Rule which  provides:

“ Where a suit  in respect of which  an interlocutory injunction  has been  granted  is not determined   within a period  of twelve  months  from thedate of the grant, the injunction shall lapse  unless for any sufficient reason the  court orders otherwise.

This court observes that albeit the said rule is couched  in mandatory  terms, the words “unless for any  sufficient  reason the court orders  otherwise” confers  the court with discretion to order  for extension of injunction orders if  there are  sufficient  reasons  advanced  by a party applying for such extension or variation.

The  plaintiff has argued and  the court  record bears  her witness that after  the said  injunctive  orders were issued  by Hon Ougo J, the applicant had to apply to  court for amendment  of  her plaint  and subsequent  to that leave to  amend, the defendant  too amended  his pleadings  and introduced  a counter claim on 9th July 2015.

The plaintiff has also demonstrated  that she has  fully complied with  the pre-trial requirements pursuant to Order 11 of the Civil Procedure  Rules.  No doubt, the plaintiff, and indeed, no party  to the suit  could have been expected  to comply  with pre-trial requirements fully before pleadings close and in this case, the pleadings  must have closed sometime  in August  2015 upon which  pursuant  to Order 11 Rule 3(1) of the Civil Procedure Rules, a case conference  would then be  convened  a month after the  pleadings close.

Although the defendant  opposed this  application for extension of the injunctive orders, he did not rebut  the above position  which is  apparent  from the  court record.  The mere objection to extension on the ground that there had been delay  to frustrate  the defendant or that  the plaintiff  waited until the orders were about to lapse before seeking  for their extension  is not  sufficient .  There was no material  advanced  before this  court to  suggest  that the  conduct  of the plaintiff  was deplorable  and that it  therefore  disentitled  her from seeking the orders  herein. Order 500 Rule 6 of the Civil Procedure Rules on enlargement of time allows such application for enlargement even after the time prescribed has expired. In this case, the application was timeously brought before such expiry of the 12 months.

Injunctive relief  is indeed  an  equitable  relief/remedy based on  equitable  principles  and the conduct  of the parties  are usually considered  in extending  the orders.  It has not been shown in this case  that the  plaintiff, upon obtaining  the injunctive  relief, went to slumber  or that  she had not taken any  proactive  steps  to set down the suit for  hearing.

The plaintiff moved  the court as  appropriate, for leave to amend her pleadings  and that action prompted  the defendant  too to amend his  pleadings  and introduce  a counterclaim  which is  a suit  within  a suit.  And as I have stated  above, pleadings only closed in August  2015.  It cannot, therefore, in the view of this court, be true that there was any inordinate  delay and  or inexcusable  conduct by the  plaintiff.

The plaintiff has also submitted that  if the orders sought are not   granted  maintaining  status quo, then the substratum of this suit, which the injunctive  orders  were preserving  would  be lost.

The Court of Appeal  in the case of George  Orango Orago v George  Liewa  Jagalo & 3 Others (2010) e KLR  stated  that the purpose  of an  injunction  is to conserve  or preserve  the subject matter/property pending  determination of a suit concerning  the property.  The defendant filed a counterclaim and   it was equally incumbent  upon him to  expeditiously  move the court, where he  felt  there was  delay, to have the  suit determined  as espoused under  Section 1A and 1   B of the Civil Procedure  Rules,  that the  duty to ensure  that suits are  expedited  is imposed  on all the  actors  in a suit.

In addition, no pre-trial questionnaire  and or issues had been filed by the parties as required by Order 11 of  the Civil Procedure Rule.

The court  further notes  that the  issues  in contest  are highly contentious  and the defendant  even challenged  the decision  by Ougo J granting the impugned  injunction and sought  a remedy before the Court of Appeal.

As was held in Ougo & another V Otieno (1987eKLR 364, where there is a serious conflict  of facts, status quo should be  maintained  until the dispute has  been decided at the trial.

This is not to say that  the suit herein must remain archived in perpetuity  for public policy demands that justice must be administered  without  undue delay.  See Article  159(2) (b) of the Constitution  and  that the  business of the courts  should be  conducted  with expedition ( see Fitz Patrick V Batger & Company  Ltd (1967) 2 ALL ER 657, since  it has not  been demonstrated  that the  plaintiff  has no interest  in prosecuting  the suit herein; and  as no  application was ever made by the defendant  to have the  injunction  granted herein discharged  under Order  40 Rule 7 of the Civil Procedure Rules for inaction  or misconduct, I find sufficient  reasons have been  advanced  why the injunctive orders granted by Ougo J on 22nd September 2014  should be extended, thereby protecting  or preserving  the substratum of the suit herein pending  the determination of this suit.

I am in total agreement  that this  suit ought  to be heard and determined  expeditiously.

Accordingly, I grant  the prayers  sought by the 1st plaintiff  in her  Notice of Motion dated 8th  September 2015 taking into account  the provisions  of Sections 1A, 1B,3A and 63(e) of the Civil Procedure Act and Order 40 Rule  6 of the Civil Procedure  Rules for the  ends of justice  to be met, and  order that;

The interim injunction orders issued  by this court, Ougo J on 23rd  September 2014  be and are hereby extended  for another 12 months from this date.

Both the  plaintiffs  and defendants  shall comply with all the  pre-trial  requirements  within 45 days from the date  hereof.

The suit  herein shall be mentioned on 4th November 2015 for pre-trial  conference  to confirm compliance  with the order (b)  above upon which a certificate  shall issue and  a hearing date  fixed on priority basis.

Each party shall bear the costs of this Notice of Motion.

Dated, signed and delivered in open court at Nairobi this 22nd day of September 2015.

R.E. ABURILI

JUDGE