Dikus Transporters Limited v Ga Insurance Limited (Environment & Land Case E075 of 2023) [2023] KEELC 18366 (KLR) (22 June 2023) (Ruling)
Neutral citation:
[2023] KEELC 18366 (KLR)
Republic of Kenya
Environment & Land Case E075 of 2023
EK Wabwoto, J
June 22, 2023
Between
Dikus Transporters Limited
Plaintiff
and
Ga Insurance Limited
Defendant
Ruling
1.This ruling is in respect to two applications filed by the plaintiff on February 24, 2023 and March 18, 2023. The applications were accompanied by a supporting affidavit sworn by Diba Boru Jaldessa. The Application dated February 24, 2023 was later amended on March 1, 2023 seeking the following orders:
2.The Application was premised on the grounds that:
3.The Notice of Motion application dated March 18, 2023sought the following orders:
4.Pursuant to the direction issued by the court on March 23, 2023 it was directed that the both applications would be disposed of simultaneously and by way of written submissions.
5.In the plaintiff’s submissions dated 2April 6, 2023, it was submitted that the plaintiff bought the two parcels of land in vacant possession and took possession in 2020. It was further argued that the root of the plaintiff’s title stemmed from David Mutinda who was a registered rate payer in LR 209/10601/12 (prior to sub division). The title was traceable from David Mutinda to Stephen Juma Ndeda to Dikus Transporters Ltd. The plaintiff urged the court to grant the orders sought as against the defendant. Reliance was placed on the case of Giella v Cassman Brown & Co. Ltd [1973] EA 358.
6.The defendant filed submissions (undated) in respect to the amended application on March 1, 2023 in which they contended that based on their belief that the sub division of the suit properties was fraudulent and the subsequent cancellation of the sub division and transfer was justification on which they made steps to enter the premises. It was argued that at this point in time, they would suffer a great harm should they court grant an order to demolish the perimeter wall. They also argued that they had exercised their right to withdraw ELC No E114 of 2021 under Order 25 of the Civil Procedure Act and therefore could not be accused of unlawfully withdrawing the said suit.
7.The defendant also filed submissions dated May 23, 2023 in respect to the application seeking to cite the directors of the plaintiff company for contempt. It was argued that the orders in respect to which the plaintiff seeks to cite the defendant for contempt were issued on February 28, 2023 and served upon them on the same day by email at around 16:53 Hours at a time when the construction of the perimeter wall had been concluded and as such the defendant could not be held guilty for contempt. Reliance was made to the cases of Mbugua vs Mbugua [1992] KLR 448, Indian Airports Employees Union vs Ranjan Catterjee & another [AIR 1999 SC 880:1999(2) SCC:537 and Mahinderjit Singh Bitta vs Union of India & others 1 A No. 10 of 2010.
8.I have considered the applications, rival affidavits and the respective submissions filed. In my view, the issue that arises for determination by this court are as follows;
9.In the amended motion application dated February 28, 2023 the plaintiff sought a temporary injunction restraining the defendant from engaging in certain activities in respect to L.R No. 209/22464 and L.R No. 209/22465 pending the hearing and determination of the suit. The principles upon which this court exercises its discretion in applications for a temporary injunction are now settled. In Giella v Cassman Brown & Co Ltd [1973] EA 358, it was held that an applicant for a temporary injunction must establish a prima facie case with a probability of success and the injunction will not normally be granted unless the applicant might otherwise suffer an irreparable injury that cannot be adequately compensated by an award of damages. It was held further that if the court is in doubt as to the foregoing, the application would be determined on a balance of convenience. This court is guided by section 63 of the Civil Procedure Act and Order 40(1) of the Civil Procedure Rules, where in any suit it is proved by affidavit or otherwise—
10.In Nguruman Limited vs Jan Bonde Nielsen & 2 others, Ca No. 77 of 2012, the court outlined that:
11.As stated above, for an applicant for a temporary injunction to succeed, he must demonstrate that he has a prima facie case against the respondent and that he stands to suffer irreparable harm unless the injunction is granted. The existence or not of a prima facie case is a matter of fact and must be established through evidence. The same with whether or not one stands to suffer irreparable harm unless an injunction is granted. In interlocutory applications, evidence is adduced through affidavits unless the court orders otherwise. It is undeniable that the question of ownership of the suit premises is at the heart of this suit. When deciding interlocutory applications, the court’s foremost task is not to apply permanent solutions but to preserve the subject matter for future determination. From the material before me, I am satisfied that the plaintiff has established a prima facie case. In view of the foregoing, it is only prudent that the temporary injunctive orders sought be granted pending the determination of the suit.
12.With regards to the issue of contempt, contempt of court has been defined as conduct which interferes with the administration of justice or impedes or perverts the course of justice. In specific, civil contempt consists of a failure to comply with a judgment or order of a court or breach of an undertaking of court. (See Osborne’s Concise Law Dictionary).
13.In the case of Sam Nyamweya & others vs. Kenya Premier League Ltd and others [2015] eKLR it was stated as follows:
14.In North Tetu Farmers Co. Ltd vs Joseph Nderitu Wanjohi [2016] eKLR the court discussed the elements that would constitute contempt as follows:
15.In this instance, the defendant argued that the there was lack of personal service of the orders issued and thus the respective directors lacked full knowledge of the same. The defendant also argued that the orders were issued on February 28, 2023 but were served to the defendant’s company at around 16:53 Hours by email as indicated in the affidavit of service at which time the construction of the perimeter wall had been concluded.
16.In the instant case, having considered the affidavits filed herein and further the defendant’s contention that they were not personally served with the orders issued by the court, there is uncertainty as to whether or not the defendant was indeed made aware of the said orders immediately they were served by email on February 28, 2023 at 16.53 Hours. In the circumstances, I am not persuaded that the plaintiff has demonstrated that the defendant wilfully failed, refused and or neglected to obey the court order.
17.In conclusion, the plaintiff’s amended motion dated March 1, 2023 and the application dated March 18, 2023 are hereby determined as follows:
12.It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 22ND DAY OF JUNE 2023.E. K. WABWOTOJUDGEIn the presence of: -Mr. Kairaria for the plaintiff.Mr. Paul Mwangi for the defendant.court Assistant; Caroline Nafuna