Ethics & Anti-Corruption Commission v Buigut; Kewah Construction Ltd (Interested Party) (Anti-Corruption and Economic Crimes Civil Suit E040 of 2023) [2024] KEHC 5513 (KLR) (Anti-Corruption and Economic Crimes) (9 May 2024) (Ruling)
Neutral citation:
[2024] KEHC 5513 (KLR)
Republic of Kenya
Anti-Corruption and Economic Crimes Civil Suit E040 of 2023
EN Maina, J
May 9, 2024
Between
Ethics & Anti-Corruption Commission
Plaintiff
and
Alex Buigut
Defendant
and
Kewah Construction Ltd
Interested Party
Ruling
1.By the Notice of Motion dated 18th December 2023 the Plaintiff/Applicant seeks a temporary injunction to restrain the Defendant/Respondent and the Interested Party whether by themselves, their servants and/or agents from selling, transferring charging or further charging, leasing, developing, subdividing, disposing, wasting or in any other way (howsoever described) alienating the following properties: -i.Uasin- Gishu/Kimumu Scheme/5244 (undeveloped) valued at approximately Kshs. 2 millionii.Uasin-Gishu/Kimumu Scheme/5241 (undeveloped) valued at approximately Kshs. 2 million.
2.The Plaintiff/Applicant also seeks an injunction to restrain the Defendant/Respondent from demanding the sum of Kshs. 5, 754,000 seized a search conducted in his house pursuant to an order issued in Misc. Criminal application No. E072 of 2017.
3.The application is brought under Sections 1A, 1B & 3A of the Civil Procedure Act, Order 40(1), Order 51(1) of the Civil Procedure Rules and all other enabling provisions of the law.
4.The gravamen of the application as can be discerned from the grounds on the fact of the application as well as the affidavit in support are that:-
5.The Respondent vehemently opposed the application through a replying affidavit sworn by himself on 30th January 2024 where he has deposed that:-
Submissions
6.Learned Counsels canvassed the application through written submissions. The plaintiff/Applicant is represented by Olga Ochola, Legal Counsel and the Defendant/Respondent and Interested Party by the firm of Nechesa Maina & Associates Advocates.
7.Learned Counsel for the Plaintiff/Applicant reiterated the brief facts of the case and grounds for the application and then urged this court to find that the Plaintiff/Applicant had not only demonstrated that it has a prima facie case but that it stands to suffer irreparable loss if the orders are not granted and also that the balance of convenience tilts in its favour and as such the application should be allowed. Counsel submitted that the most important consideration in an application for injunction is that the suit property is in danger of being wasted, damaged or alienated by any party to the suit or wrongfully sold or that the defendant threatens or intends to remove or dispose he property. Counsel stated that the Defendant/Respondent was suspected and found to have engaged in corrupt conduct and accumulated unexplained wealth to the tune of Kshs.93,746,203.65 which is disproportionate to his legitimate sources of income; that in the absence of the temporary injunction sought there is nothing to prevent the Defendant/Respondent from disposing the properties herein to the detriment of the public. Counsel contended that the Plaintiff/Applicant has a genuine and arguable case with a high chance of success and if the injunction is not granted it will suffer irreparable damage and therefore the application should be granted.
8.To support her submissions Counsel relied on the following cases:-
- Ephraim Miano Thamaini v Nancy Wanjiru Wangai & 2 others [2022] eKLR.
- Republic v Paul Kihara Kariuki, Attorney General & 2 others Ex parte Law Society of Kenya [2020] eKLR.
- HCACEC/046/2022, EACC v David Kinyae Isika & 3 Others.
- Gatirau Peter Munya v Dickson Mwenda Kihtinji & 2 Others [2014] eKLR.
9.On his part, Learned Counsel for the Defendant/Respondent relied on the same precedents cited by Counsel for the Plaintiff/Applicant. Counsel however discounted that the Plaintiff/Applicant has established a prima facie case as would entitle it to the injunction sought, given that there is no evidence that the Defendant/Respondent has violated or threatened to violate the applicant’s rights or that there is imminent risk of transferring and/or disposing the properties. Counsel pointed out that the Plaintiff/Applicant has for the last seven years placed restrictions on the properties and that the said restrictions are in place courtesy of a ruling delivered by this very court. Further that even the money is not in the Defendant/Respondent’s account; that as such it is indeed it is the Plaintiff/Applicant that has infringed the Defendant/Respondent’s rights and should this court grant the orders it shall be aiding the Plaintiff/Applicant’s breach of those rights.
10.On the issue of irreparable loss, Counsel submitted that as the Plaintiff/Applicant is in absolute control of all the property and legal documents that it confiscated from the Defendant/Respondent seven years ago and has also placed restrictions on the property the Defendant/Respondent has no access to the same and hence there is no threat that the property will be disposed or the funds withdrawn hence dissipating the property.
11.On the balance of convenience Counsel urged this court to find that the same tilts in favour of the Defendant/Respondent whose constitutional rights and freedoms have been violated for years by the Plaintiff/applicant. Counsel urged this court not to grant the injunction.
12.In addition to the cases cited by Counsel for the Plaintiff/Applicant, learned Counsel for the Respondent also placed reliance on the following cases: -
- Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] eKLR.
- Paul Gitonga Wanjau v Gathuthi Tea Factory Company Ltd & 2 others [2016] eKLR.
- Amir Suleiman v Amboseli Resort Limited [2004] eKLR.
Issues for Determination
(i) Whether the Plaintiff/Applicant has Met the Threshold for Grant of a Temporary Injunction
Analysis and Determination.
13.I have carefully considered the Notice of Motion, the grounds thereof, the supporting and replying affidavits, the rival submissions and the law.
14.The conditions for grant of a temporary injunction have been correctly laid by learned Counsel for the parties. These are that the Applicant must: -a.Establish a prima facie case.b.Demonstrate irreparable damage which cannot be compensated by an award of damages if the injunction is not granted.c.Balance of convenience tilts in its favour.
15.The above conditions were first elucidated in the case of Giella v Cassman Brown & Co. [1973] EA 358 and restated in various cases including the case of Nguruman Limited v Jan Bonde Nielsen and Anor [ 2012] eKLR where the Court of Appeal held that an applicant must satisfy all three conditions sequentially in order to qualify.
16.Applying the above conditions to the facts of this case it is my finding that the Applicant has established a prima facie case meaning that “there is a serious issue for trial between the parties” as held in the case of American Cyanamid Co. v Ethicom Limited (1975) ALLER 504 cited with approval in the case of RJR - MacDonald Inc. v Canada (Attorney General), 1994 CanLII 117 (SCC), [1994], SCR 311 also cited by Mativo J, as he then was, in the case of Juja Coffee Exporters Limited & Others v Bank of Africa Limited & another; Adam & 2 others (Interested Party) (Commercial Civil Suit 57 of 2016) [2022] KEHC 9 (KLR) (25 January 2022) (Ruling). However, there are already in place restrictions/caveats in regard to the two parcels of land and the money the subject of the application which this court has held, through its ruling delivered on 14th March 2024, shall persist until this case is heard and Determined. As such the Plaintiff/Applicant is not likely to suffer any irreparable damage, as there is no likelihood that the properties which it seeks to forfeit in execution of the decree should the court find that the Defendant/Respondent and Interested Party are culpable of corrupt conduct, are in danger or risk of being disposed. In the premises I need not consider whether the balance of convenience tilts in favour of the Plaintiff/Applicant. I find that it would be superfluous to grant an injunction when there are already orders preserving the property.
17.Accordingly, I dismiss the application with an order that costs shall be in the cause.
SIGNED, DATED AND DELIVERED VIRTUALLY THIS 9TH DAY OF MAY, 2024.…………………………E. N. MAINAJUDGE