Qfg v G Mutai, J

the property and a permanent injunction preventing the defendant from selling the suit property or in any manner disposing of the same. 5. The applicant also filed a notice of motion dated 26th September 2024, vide which he sought a temporary injunction to restrain the defendant from inter alia alienating, selling, or transferring the suit premises. 6. The defendant responded through a replying affidavit sworn on 2nd October 2024 before a notary public in Aldria, Italy. In the said affidavit, he averred that the subject house was his and that he built it with the intention of selling the same at a profit. He averred that his intention to adopt the plaintiff/ applicant was driven by magnanimity and that he had no legal obligation to him. In his view, all issues between him and the applicant and his mother had been determined with finality. 7. The defendant/respondent urged that upon determination of the matter, he evicted the plaintiff/ applicant and his mother. Thus, the matter was an abuse of the court process. 8. The defendant /respondent filed grounds of opposition on 3rd October 2024 in which he averred that the application was an abuse of the process of the court, that the court was functus officio and also that the matter was res judicata. 9. The plaintiff, through his advocates Gikandi & Company Advocates, filed written submissions dated 16th October 2024. Counsel submitted that the plaintiff was seeking a temporary injunction and went ahead to discuss the conditions set in the locus classicus case of Giella v Cassman Brown (1973) EA 358. 10. On the first condition counsel submitted that the father-son relationship between the plaintiff and the defendant led to a constructive trust over the suit property. The implied and expressed acknowledgement by the defendant that the plaintiff is his son and the suit property is held for his benefit gave the plaintiff a beneficial interest in the property. That the fact that adoption proceedings are still pending does not take away the plaintiff’s right to be considered as the defendant’s son. Further, the defendant, having conferred upon the plaintiff a beneficial interest in the suit property by his conduct, is estopped from selling or transferring the suit property without the plaintiff’s consent. It was urged that the suit had a high probability of success. 11. On the second condition, counsel submitted that if the injunction is not granted, the plaintiff is likely to proceed to sell or transfer ownership of the suit property to a third party while the suit is pending. Counsel urged the court to grant the order for an injunction to prevent the plaintiff from suffering further irreparable harm which cannot be adequately remedied by an award of damages. 12. On the third condition counsel submitted that if the order for an injunction is not granted the plaintiff is likely to suffer greater loss compared to the defendant. If the property changes hands to a third party, it will subject the plaintiff to emotional and financial strain as he pursues a legal claim against the third party. The said act would render him homeless. 13. In conclusion, counsel submitted that the plaintiff has proved the three conditions and urged the court to allow the application. 14. The defendant, on the other hand, through his advocates, M.K. Mulei & Company Advocates, filed written submissions dated 18th October 2024. Counsel submitted that the plaintiff has not come to court with clean hands as his sole aim is to frustrate the defendant and prevent him from enjoying the fruits of his judgment after nine years of unnecessary litigation. 15. On the three conditions for granting an injunction, counsel submitted that the plaintiff does not have a prima facie case against the defendant, as the defendant has never married his mother nor adopted https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/17262/eng@2024-12-11 2

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him as his son, and therefore, he has no responsibility whatsoever for the plaintiff. He submitted that the court determined the paternity issue and the right to the defendant’s property, and the court found both the plaintiff and his mother had no right over the said property, hence the eviction orders against them. Thus, the court cannot injunct the defendant, the lawful owner of the suit property. 16. In conclusion, counsel urged the court to dismiss the application with costs. 17. The defendant also filed a notice of motion application dated 2nd October 2024 seeking to have the plaint dated 26th September 2024 struck out for being res judicata. 18. The plaintiff in response filed grounds of opposition dated 11th October 2024. He stated that at the time of filing of Mombasa High Court Adoption Cause No.5 of 2013 he was still a child and that his attainment of age of majority without finalization of the same it gave rise to the cause of action herein. It was stated that the same could not be pleaded or determined in the previous suit, Mombasa High Court Matrimonial Property Cause No.1 of 2016; TMG & Another v Aldo Pasini. 19. In his submissions dated 11th October 2024, counsel for the plaintiff submitted that the defendant has not demonstrated that the cause of action was the subject matter of Mombasa High Court Matrimonial Property Cause No.1 of 2016; TMG & Another v Aldo Pasini. The cause of action and reliefs sought in the said matter are not similar to those sought in the matter herein. 20. On the other hand, the defendant through his advocates M.K Mulei & Company Advocates in his written submissions dated 18th October 2024 submitted that the doctrine of res judicata means there should be an end to litigation. Counsel submitted that the plaintiff and his mother were the plaintiff s in the Matrimonial Cause No.1 of 2016 seeking similar orders against the same defendant and over the same subject matter. The same was heard and determined and the judgment of the court appealed against. 21. Counsel further submitted that the issue of the plaintiff’s adoption and parental responsibility was dealt with by both the High Court and the Court of Appeal, where the Court of Appeal found that the defendant/applicant does not have parental responsibility over the plaintiff/respondent. 22. Counsel urged the court to find the suit res judicata and strike out the same with costs. 23. Section 7 of the Civil Procedure Act deals with the doctrine of res judicata. It provides that:“ No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.” 24 The court, in the case of Invesco Assurance Company Limited & 2 others v Auctioneers Licensing Board & another; Kinyanjui Njuguna & Company Advocates & another(Interested Parties) [2020] KEHC 3401 (KLR) stated as follows:“ The doctrine of res judicata is set out in Section 7 of the Civil Procedure Act. The doctrine ousts the jurisdiction of a court to try any suit or issue which had been finally determined by a court of competent jurisdiction in a former suit involving the same parties or parties litigating under the same title. A close reading of Section 7 of the Act reveals that for the bar of res judicata to be effectively raised and upheld, the party raising it must satisfy the doctrine’s five essential elements which https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/17262/eng@2024-12-11 3

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are stipulated in conjunctive as opposed to disjunctive terms. The doctrine will apply only if it is proved that: i. The suit or issue raised was directly and substantially in issue in the former suit; ii. That the former suit was between the same party or parties under whom they or any of them claim; iii. That those parties were litigating under the same title; iv. That the issue in question was heard and finally determined in the former suit; and v. That the court which heard and determined the issue was competent to try both the suit in which the issue was raised and the subsequent suit. 24. In my view, the application dated 2nd October 2024 has no merit. The suit between the defendant and the mother of the plaintiff was not based on the same cause of action as that in this matter. The said suit was based on an unsuccessful plea that the property was matrimonial. In this case, the plaintiff claims that he was to be adopted by the defendant and that there is a constructive trust in his favour. 25. In the circumstances, I am unable to agree that the suit filed by the plaintiff is res judicata and that it should be struck out on the said grounds. In the circumstances, I dismiss the application dated 2nd October 2024. 26. Regarding the application dated 26th September 2024, the court notes that the plaintiff is not the biological child of the respondent; the adoption proceedings were not concluded. Although it has been said that the adoption proceedings are pending, the plaintiff is a 19-year-old man. A person of such age cannot be adopted. In my view, the adoption application was automatically spent the day the plaintiff became an adult. 27. Under the dictum of Giella v Cassman Brown (1973) EA 358, the plaintiff/applicant had to show: a prima facie case with probability of success; that damages would not be an adequate remedy; and that the balance of convenience tilted in favour of the award of the orders sought. 28. Although I haven’t agreed with the defendant that this matter is res judicata or that the court is functus officio, it is evident to me that the claims of the plaintiff, based as they are on an alleged constructive trust, do not pass the test of what amounts to a prima facie case. I am guided by the case of JM v SMK & 4 others [2022] KEHC 2265 (KLR) stated: “ What then constitutes a prima facie case? In the case of Mrao Ltd vs. First American Bank of Kenya Ltd & 2 Others [2003] KLR 125, the Court of Appeal held as follows: “The principles which guide the Court in deciding whether or not to grant an interlocutory injunction are, first, an applicant must show prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience...A mere scintilla of evidence can never be enough: nor can any amount of worthless discredited evidence. It is true that the Court is not required at that stage to decide finally whether the evidence is worthy of credit, or whether if believed it is weighty enough to prove the case conclusively: that final determination can only properly be made when the case for the defence has been heard. It may not be easy to define what is meant by “prima facie case”, but at least it must mean one on which a reasonable tribunal, https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/17262/eng@2024-12-11 4

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properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence...The terms “prima facie” case, and “genuine and arguable” case do not necessarily mean the same thing, for in using another term, namely a sustainable cause of action, the words “prima facie” are frequently used to refer to a case which shifts the evidential burden of proof, rather than as giving rise to a legal burden of proof in the manner of considering, which was in relation to the pleadings that had been put forward in the case. It would be in the appellant’s interest to adopt a genuine and arguable case standard rather than one of a prima facie case, the former being the lesser standard of the two...In civil cases a prima facie case is a case in which on the material presented to the Court a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter. A prima facie case is more than an arguable case. It is not sufficient to raise issues, but the evidence must show an infringement of a right, and the probability of success of the applicant’s case upon trial. That is clearly a standard, which is higher than an arguable case.” 29. The alleged constructive trust is not well attested. 30. In the case of Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] KECA 606 (KLR), the Court of Appeal held that the conditions for the grant of an injunction in Giella v Cassman Brown are to be considered sequentially. The Court observed that: “ In an interlocutory injunction application, the applicant has to satisfy the triple requirements to; (a) establish his case only at a prima facie level, (b) demonstrate irreparable injury if a temporary injunction is not granted, and (c) ally any doubts as to (b) by showing that the balance of convenience is in his favour. These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. See Kenya Commercial Finance Co. Ltd V. Afraha Education Society [2001] Vol. 1 EA 86. If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between.” 31. It therefore follows that, having found that there is no prima facie case, there is no need for me to consider the 2 conditions. 32. In the circumstances, the application dated 26th September 2024 is dismissed. 33. The orders that commend themselves to me are that the application dated 2nd October 2024 filed by the defendant is dismissed. The Notice of Motion dated 26th September 2024 is similarly dismissed. Parties will bear their own costs in respect of the two applications. 34. Orders accordingly. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/17262/eng@2024-12-11 5

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DATED AND SIGNED AT MOMBASA, THIS 11TH DAY OF DECEMBER 2024. DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS. GREGORY MUTAI JUDGE In the presence of:Ms Ayuma, holding brief for Mr Gikandi Ngibuini, for the Plaintiff/Applicant; Mr M K Mulei, for the Defendant/Respondent; and Arthur - Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/17262/eng@2024-12-11 6

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