Mukuha v Naivas Limited & 2 others (Civil Appeal 39 of 2017) [2021] KECA 344 (KLR) (17 December 2021) (Judgment)
Neutral citation:
[2021] KECA 344 (KLR)
Republic of Kenya
Civil Appeal 39 of 2017
RN Nambuye, F Sichale & S ole Kantai, JJA
December 17, 2021
Between
Newton Kagira Mukuha
Appellant
and
Naivas Limited
1st Respondent
Simon Gashwe Mukuha
2nd Respondent
David Kimani Mukuha
3rd Respondent
(Being an appeal from the Ruling/Orders of the High Court of Kenya at Nairobi (Nzioka J) dated 14th November 2016.) IN (Nairobi High Court Civil Suit No. 475 OF 2013)
Judgment
1.This is rather an unfortunate litigation pitting close siblings, the appellant and his two brothers (the 2nd and 3rd respondents). Be that as it may, Newton Kagira Mukuha (the appellant herein) has filed this appeal against the ruling of Nzioka, J. dated 14th November 2016.
2.The brief facts in this appeal are as follows. Vide a plaint dated 31st October 2013, the appellant sued the 2nd and 3rd respondents seeking inter alia an order of injunction to restrain the 2nd and 3rd respondents from interfering with shares of Naivas Limited (the 1st respondent herein). Subsequent thereafter, the appellant filed 3 different applications dated 31stOctober 2013, 11th December 2014 and 13th May 2016 respectively, seeking inter alia the following orders:
3.The applications were consolidated heard and dismissed by Nzioka, J. on 14th November 2016.
4.The appellant was aggrieved by the aforesaid ruling thus provoking the instant appeal vide a Memorandum of Appeal dated 10th February 2017, raising the following grounds of appeal:
5.That the learned judge erred in law and fact by:
6.The appeal was urged by way of written submissions with oral highlights by the parties on 27th September 2021. The appellant appeared in person while learned counsel, Mr. Kiiru appeared for the respondents.
7.The appellant submitted that the crux of his applications was that he had instituted proceedings against the respondents on the basis of a constructive trust. In the applications the appellant sought interim injunctive reliefs prohibiting the respondents from selling, transferring, allotting or in any other way interfering with the shareholding of Naivas Limited, pending the hearing and determination of the main suit. It was his contention that there existed constructive trust when the family of Peter Mukuha Kago, (the deceased), made contributions towards the formation of a family business and that as such, he had established a prima facie case with a high probability of success.
8.With regard to grounds 4-10 of the appeal, he submitted that the learned judge failed to exercise her discretion judiciously since the ruling was based on extraneous matters namely; on whether the suit was res judicata and that the court relied on the ruling in Nakuru High Court Succession Cause No. 92 of 2011 by Emukule, J. It was his position that Emukule, J. sitting then as a Succession Cause Court could not determine the question of ownership/ shareholding of Naivas Limited.
9.On the other hand, it was submitted for the respondents that the appellant had raised several grounds of appeal but the grounds raised did not address the issues that the High Court took into consideration in dismissing the appellant’s three applications namely:
10.On the first issue, it was submitted that the appellant filed Nairobi HCCC No. 475 of 2013 against the 2nd and 3rd respondents and on 9thSeptember 2014, he filed an amended plaint and joined Naivas Limited (the 1st respondent) as party to the said suit, which amendment was made without leave of the Court. It was submitted thus that it was an abuse of the court process for the appellant herein to purport to join Naivas Limited to the said suit through an amended plaint without leave of the Court.
11.As to whether the appellant’s applications were res judicata, it was submitted that the issues raised in the High Court and the parties therein were similar to those canvassed in Nakuru High Court Succession Cause No. 92 of 2011, wherein Emukule, J. (rtd), in a ruling delivered on 31st October, 2014, held that the appellant had no interest, legal or equitable in Naivas Limited. That, in the above mentioned Succession Cause, the appellant had further prayed for injunctive orders to restrain the respondents from intermeddling with the deceased’s estate and specifically interfering with the shares of Naivas Limited owned by the deceased. It was thus submitted that it was clear that the appellant was principally seeking to be declared an equitable or legal owner of shares in Naivas Limited which issue had already been dealt with in the Succession Cause and was thus res judicata.
12.Finally, as to whether the appellant’s plea for interim injunctive orders were merited, it was submitted that the High Court properly and rightfully declined to grant the same as the appellant had failed to meet the threshold set forth in Giella v Cassman Brown (1973) EA 358. Consequently, the respondents urged this Court to dismiss the appeal with costs and uphold the ruling of the High Court.
13.We have considered the grounds of appeal, the appellant’s submissions dated 6th September 2021, the respondent’s written submissions dated 22nd September 2021, the oral submissions made before us, the authorities cited and the law. We are required as a first appellate court by rule 29(1) of the Court of Appeal Rules, to re-appraise the evidence and to draw inferences before coming to our own independent conclusion.See Selle & Another v Associated Motor Boat Co. Ltd & Others (1968) EA 123.
14.The appellant in the High Court was essentially seeking injunctive orders to stop the respondents from interfering, meddling, or dealing with the shareholding and/or assets of Naivas Ltd in a manner prejudicial to him.
15.Firstly, and as was rightly observed by the High Court, Naivas is not a party to these proceedings as it was not a party to the initial plaint dated 31st October 2013. The inclusion of the 1st respondent in these proceedings vide the amended plaint filed on 3rd September 2014 was improper and irregular as the same was filed without leave of the court. It follows therefore that no injunctive orders could be issued by the High Court against Naivas Ltd as it was not properly a party to the High Court proceedings.
16.Be that as it may, it is contended by the appellant that the learned judge failed to exercise her discretion judiciously as the ruling was based on extraneous matters on whether the issues raised therein were res judicata. It is indeed not in dispute that in the instant appeal the appellant had sought injunctive orders to stop the respondents from interfering, meddling, or dealing with the shareholding and/or assets of Naivas Ltd in a manner prejudicial to him. It is also not in dispute that vide summons dated 2ndNovember 2012, in Nakuru High Court Succession Cause No. 92 of 2011, the appellant had, inter alia sought the following order against the 2nd respondent:
17.Further, it is not in dispute that on 10thJuly 2013 , the appellant, again in the same proceedings had filed another notice of motion application seeking similar orders as the one he sought in the summons dated 2nd November 2012 .Emukule, J. (rtd), in a ruling delivered on 31st October 2014 inter alia rendered himself as follows:
18.It is imperative to note that the appellant has never appealed against the aforesaid ruling. Whereas the appellant contended that the learned judge failed to appreciate that Emukule, J. sitting as a Succession Court could not determine the question of ownership/shareholding of Naivas Limited, it was the same appellant who had filed the motion dated 2nd November 2012, seeking similar injunctive orders against the 2nd respondent. How then can he turn around and say that the Court (Emukule, J.) could not issue the orders that were issued on 31st October 2014? We think the appellant is blowing hot and cold, a situation we are not prepared to countenance.
19.Finally, it was contended that the learned judge’s ruling and reasoning was plainly wrong and erroneous in law given the factual circumstances obtaining in the application before her. The learned judge in her ruling at paragraph 27 while considering the applications stated:
20.Again at paragraph 36 of the ruling, the Learned Judge stated thus:
21.From the above passages reproduced from the ruling of the High Court, and contrary to the appellant’s assertions, it is indeed evident that the judge in a well-reasoned ruling considered the laid down principles that govern applications for grant (or otherwise) of temporary injunctions. In our view, it has not been demonstrated to the satisfaction of this Court that either the Judge exercised her discretion wrongly or took into account irrelevant factors or failed to take into account relevant factors. Consequently, nothing turns on this ground of appeal and the same fails.
22.On the same note and from the circumstances of this case, perhaps the appellant should take note of the observation by the learned judge at paragraph 44 of the ruling where she states that:
23.We believe we have said enough to demonstrate that the appellant’s appeal is without merit and the same is hereby dismissed in its entirety. Costs to the respondents.
24.It is so ordered.
DATED AND DELIVERED AT NAIROBI THIS 17TH DAY OF DECEMBER, 2021.R. N. NAMBUYE.....................................................JUDGE OF APPEALF. SICHALE......................................................JUDGE OF APPEALS. ole KANTAI.......................................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR