Tai v Dequan

5. The Respondent’s conduct was said to amount to interference with proprietary rights, breach of contract, and unjust enrichment, and to have included the making of false statements at Kayole Police Station leading to the plaintiff’s wrongful arrest. It was asserted that unless restrained, the Respondent would cause irreparable harm to the plaintiff, and that the court had jurisdiction to grant the orders sought, with the balance of convenience and the interests of justice favoring the application. 6. The Respondent opposed the application vide grounds of opposition dated 19/12/2025. 7. It was contended that the application was vexatious, incompetent, and an abuse of the court’s process, and ought to be struck out with costs. The Respondent asserted that there were contested issues regarding the performance and enforcement of the contract between the parties, which could not be resolved through a miscellaneous application. 8. It was further alleged that the Applicant had failed to disclose material facts, specifically that the minerals, stones, and cargo in dispute had already left the court’s jurisdiction, making the sought orders impossible to grant. 9. The Respondent submitted that the Applicant sought substantive relief that could not properly be issued in a miscellaneous application, which is intended only for questions of law or procedural matters and not for determining the substantive merits of a case. The Respondent concluded that the orders sought were interlocutory in nature without an underlying substantive suit, and therefore, the application ought to be dismissed with costs. Analysis and determination 10. As at the time of writing this ruling, the Respondent had filed written submissions dated 15/1/2026, while the Applicant had not filed any submissions. 11. It is not in dispute that the Applicant has not filed a plaint, originating summons, or petition commencing a substantive suit. The present proceedings are brought purely as a miscellaneous application. 12. The nature of the reliefs sought by the Applicant is critical. The prayers seek preservation of disputed minerals and cargo, injunctive restraints against alleged breach of contract, enforcement of proprietary rights, and police assistance. These are substantive and determinative orders, not merely procedural or ancillary reliefs. 13. Order 40 of the Civil Procedure Rules, under which the application is brought, expressly contemplates the existence of a pending suit. Temporary injunctions are interlocutory remedies issued “where in any suit” property in dispute is in danger of being wasted, damaged or alienated. 14. The Respondent correctly submitted that a miscellaneous application cannot be used to commence a substantive claim or to determine contested questions of fact and law arising from an alleged breach of contract. This position is now well settled. 15. In Peter Maina Waimiri v Joseph Ngunjiri Muhoro & 2 Others [2025] KEHC 280 (KLR), the High Court emphatically stated that courts must assume jurisdiction only where it exists and eschew it where none exists, and that substantive issues cannot be determined through a miscellaneous application. The Court observed that where an applicant seeks final or determinative reliefs, the application ceases to be interlocutory and becomes misconceived. 16. Similarly, in Nairobi West Hospital Limited v Joseph Kariba & Another [2018] eKLR, the Court held that substantive orders determining the rights of parties cannot be issued through a miscellaneous https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3312/eng@2026-01-29 2

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application, as such a procedure denies parties the opportunity for full ventilation of their cases through pleadings, discovery and trial. 17. In SM v MNM (Family Miscellaneous Application E001 of 2025) [2025] KEHC 12052 (KLR), the court explained that: “ A Notice of Motion (or similar procedural application) is only meant to seek interlocutory or incidental reliefs within a properly filed suit and not final or substantive orders such as permanent injunctions or declarations.” 18. The court cited the earlier case of Chacha & another v Orbit Chemicals Industries Ltd (E003 of 2023), holding: “ …It is incumbent on Applicants to file a suit in which they seek substantive orders against Respondents. Only after filing such a suit can they bring an application for temporary injunction or permanent injunction. Such orders can only be anchored on a substantive suit filed by the Applicants…” 19. This Court fully agrees with those holdings. The Applicant’s grievances (alleged unlawful termination of a contract, non-payment for minerals, competing claims to custody of bills of lading, and alleged proprietary interference) are contested matters that can only be resolved through a substantive suit supported by pleadings and evidence. 20. The Court further notes that several of the orders sought are in the nature of mandatory and final reliefs, including exclusive custody of bills of lading, preservation of property, and police enforcement. Such orders cannot issue at an interlocutory stage, let alone in the absence of a suit. 21. Jurisdiction is everything. Without a substantive suit before it, this Court lacks jurisdiction to entertain the application or grant the orders sought. To do so would amount to determining substantive rights in vacuo, contrary to the Civil Procedure Act and established jurisprudence. 22. The invocation of constitutional provisions does not salvage the application. Constitutional Articles cannot be used to circumvent clear procedural requirements where an adequate statutory framework exists for the ventilation of disputes. 23. In light of the foregoing, the Court finds that the Applicant’s Notice of Motion dated 16th December 2025 is incompetent, misconceived, and an abuse of the court process. 24. Accordingly, the application is dismissed in its entirety. 25. Costs of the application are awarded to the Respondent. 26. It is so Ordered SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS 29TH JANUARY 2026 ADO MOSES JUDGE In the presence of: C/A – Moses N/A ………… for the Applicant Owang ………… for the Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3312/eng@2026-01-29 3

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