Kenneth Jumba & 1 other v Francis Ndge Machuki & 7 others

i. Spent. ii. Spent. iii. That pending the hearing and determination of this suit inter partes or until further orders, this Honourable Court be pleased to issue an order of temporary injunction restraining the Defendants/Respondents, either by themselves individually or jointly, their servants and/or agents or proxies or anyone claiming to be officials of Toi Open Air Market Traders Society and as such be further restrained from physically and/or virtually conducting and carrying out any Society’s business and/or activities whatsoever or altering, replacing, cancelling the registration of the Society or otherwise registering any society intended to substitute the Society and/or take over the entire market activities, operations and management. iv. That the Plaintiffs/Applicants be at liberty to apply for, and the Honourable Court be pleased to grant, such further orders or reliefs as the circumstances of this case permit as just and appropriate to meet the ends of justice. v. That the costs of this Application be in the cause. 2. The Application is supported by grounds stated on the face of the Application and in the Supporting Affidavit sworn by Kenneth Jumba on 31st January 2025. In sum, the grounds in support are that the deponent communicated to the Chief of Markets and Trades, through a letter dated 26th September 2024, the decision of the members of Toi Market Traders Society to hold elections for new officials on 30th October 2024. That he received a letter dated 16th October 2024 from the Nairobi County which regulates the Society’s operations advising against holding elections on 30th October 2024 to avoid tension in the market but instead to await verification and due compliance with the Society’s Constitution on elections procedure. 3. The deponent states that he agreed with the position held by the Nairobi County through a letter dated 27th October 2024. That the Society’s Election Board did not organize or preside over any elections as required under Article 13 (f) of the Society’s Constitution. That the Defendants/Respondents purportedly carried out what they called “election of the Society’s officer-bearers” on 30th October 2024 without the Society’s Office Bearers and Election Board’s participation contrary to the mandatory structural arrangements. That the Defendants/Respondents, by a fake Society’s Letterhead dated 5th November 2024 introduced themselves as the newly elected officials. 4. It is further deposed that Francis Ndege Machuki, the purported chairman is not a member of the Society or market trader and has no right to take part in any election of the Society. 5. The Applicant has urged that this court intervenes and grants the prayers sought in the application. Replying Affidavit 6. The Defendants/Respondent opposed this application through a Replying Affidavit sworn by Moses Odhiambo Okiya, the 7th Defendant/Respondent who has described himself as the Assistant Organizing Secretary of Toi Open Air Market. He has deposed that after the elections, the newly elected officials have submitted to the Registrar of Societies the returns; that this court lacks jurisdiction to determine this matter and that the suit has no merit and ought to be struck out with costs. 7. The Plaintiffs/Applicants filed a Further Affidavit in response to the Replying Affidavit in which it is deposed that the 7th Defendant/Respondent is not a legal official of Toi Open Air Market Traders’ Society as alleged and therefore he has no authority to swear any affidavit; that it is not true that the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16599/eng@2025-10-15 2

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Society was registered on 18th February 2024 but on 18th February 2004 as shown on the Society’s Certificate of Registration No. 23239. Submissions 8. The Plaintiffs/Applicants have submitted on three issues: i. Whether the Defendants/Respondents’ purported election was conducted in violation of the Society’s constitution and without locus standi. ii. Whether the Plaintiffs/Applicants are entitled to the declaratory and injunctive reliefs sought. iii. Who shall bear the costs of the Application 9. On the first issue, it is submitted that the Defendants/Respondents’ actions violated the mandatory provisions of the Society’s constitution, particularly article 13(f), which exclusively vests the Election Board with the authority to organize and preside over elections; that the Defendants/Respondents have not even offered any explanation as to why they failed to follow the constitutional regulatory guidance and that the elections are therefore unlawful. They relied on Kenya County Government Workers Union v Registrar of Trade Unions Rotich & another [2024] eKLR, Alfred Njau v City Council of Nairobi (1983) KLR 625 and Aress & 2 others (Suing on their own behalf and on behalf of Phase 11 Diamond Estate Association) v Ng’ang’a & 5 others: Registrar of Societies (Interested Party) (Civil Suit E242 of 2024) eKLR. 10. On the second issue it was submitted that the actions of the Defendants/Respondents are illegal and pose grave threats to the Society’s assets, market activities and organizational structure; that the Plaintiffs/Applications have made out a prima facie case as defined in Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KLR 125. 11. On who shall bear the costs, it was submitted that costs be awarded in favour of the Plaintiffs/ Respondents. 12. The 1st, 2nd, 4th, 5th, 6th, 7th and 8th Defendants/Respondents filed joint submissions highlighting the principles upon which a temporary injunction can issue under Order 40 Rules 1, 2 and 3 of the Civil Procedure Rules. They have submitted that the Applicants have not made any material disclosure of the specific act which the Respondents are committing and/or intent to commit which will be adverse to them to warrant the issuance of a temporary injunction; that the Society successfully held open and transparent elections in October 2024; that this suit was instituted three months after the said elections; that the Applicants have not demonstrated any loss suffered them to warrant court’s intervention and that the Application does not meet the threshold for grant of prayers sought and ought to be dismissed with costs. 13. I have noted that the 3rd Defendant, who has indicated that he would act in person, did not file submissions. Analysis and determination 14. I have considered the Application and the grounds in support. I have also considered the submissions of the parties. The Applicants have invoked various provisions of the law as shown on the face of the application. I have read the provisions of the law the Applicants are relying on. It is upon the Applicants to bring their application within the ambit of those provisions of the law. For a party to secure a temporary injunction under Order 40 Rules 1, and 2 such a party must demonstrate that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16599/eng@2025-10-15 3

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suit, or wrongfully sold in execution of a decree; or the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders. 15. The Applicants in the instant application have not demonstrated that any property in dispute is in such danger. Neither have they demonstrated a breach of contract on the part of the Respondents to fit under Order 49 Rule 2. They have not demonstrated how their right to property under Article 40 of the Constitution is threatened by the Respondents. 16. To my understanding, the dispute between the parties revolves around alleged illegal elections purportedly held by the Respondents. Central to the dispute is the issue as to whether the Defendants/ Respondents’ purported election was conducted in violation of the Society’s constitution and without locus standi. To fully resolve the dispute, the court requires evidence in order to address all the issues surrounding this dispute. This evidence can only be provided during full hearing of this matter. 17. My reading of the Plaint shows that the above issue is the main reason why this matter was filed. It is my considered view that to grant the orders sought at this stage of the trial would be pre-mature and prejudicial. Consequently, for the reason that the Applicants have failed to demonstrate to the satisfaction of the court that they deserve a temporary injunction, and care being taken to avoid granting orders that my prejudice the parties before the main suit is heard and determined, it is my considered view that the orders sought cannot issue. 18. The Notice of Motion dated 31st January 2025 is therefore declined and parties directed to move with haste and comply with the pre-trial directions under Order 11 in order to pave the way for the hearing and determination of the main suit. 19. Costs will abide the outcome of the main suit. 20. It is so ordered. DATED, SIGNED AND DELIVERED THIS 15TH OCTOBER 2025. S. N. MUTUKU JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16599/eng@2025-10-15 4

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