End To End v Chief Officer Trade & Enterprises Developent & 1 other

5. The basis of this application is rather common to the parties as this matter is actively in court, currently at the defence hearing stage. 6. A brief background is that the applicant/3rd defendant, County Government of Kwale, entered into a contract dated 4th April 2019 with the respondent/plaintiff, End to End Ltd for the construction of Fresh Produce Wholesale Market at Kombani-Waa Ng'ombeni Ward in Kwale County. Along the way, a dispute arose between the parties over the execution of the contract with each party blaming the other for breach of contract. The parties have stated previously in their respective affidavits that the project was about 85% to 100% completed in construction when the dispute arose. The plaintiff filed suit in court together with an application for injunction to restrain the defendants from doing certain acts in relation to the project. Temporary orders of injunction were issued by this court. 7. Although the present application indicates that the orders so obtained and now being sought to be varied were issued first on 18th November 2021, the correct position is that the orders were first issued on 11th November 2021 following the plaintiff's application dated 8th November 2021. The orders of 11th November 2021 were that: “ In the light of the representations by counsel it is hereby ordered that the current status quo obtaining in respect of the subject contract as at 11.17 a.m. on this 11th day of November 2021 be maintained pending further orders of the court on 17/11/2021." 8. The orders were issued ex-parte with the court finding that even though the plaintiff had served the application on the same day at 7.55.a.m. it was not sufficient time for the defendant/respondent to appear. The matter then came up for inter partes hearing on 17th November 2021 and upon hearing counsels for the parties the court issued an inter partes order as follows: “ In the interim, restraining orders to issue in terms of prayer (2) of the applicant's notice of motion dated 8/11/2021 pending further orders on 29/11/2021." 9. Prayer 2 of the plaintiff/applicant's application dated 8th November 2021 was for an order restraining the respondents from re-advertising, retendering, subcontracting or in any way interfering with the contract No. CGK-EU/124/DTCDTI/2018-2019 for proposed construction of Fresh Produce Wholesale Market at Kombani-Waa Ng'ombeni Ward in Kwale County. 10. These orders were extended on 29th November 2021 and further on 6th December 2021. 11. There were several other applications filed by both parties in the matter. However, with respect to the present application, the plaintiff filed another application dated 13th October 2022 seeking various prayers but pertinent among them as concerns the present application was prayer 2 in terms that: “ the court reinforces the orders of 17th November 2021 and extended on 6th December 2021 granting a status quo order meaning, there shall be no opening, no launching, no entry into premises of the market by the Respondents or anyone acting on their instructions pending the hearing and determination of the application." 12. The court granted that prayer ex-parte in the interim after the application was filed. What is notable in the said order, that is again pertinent to the present application is the prohibition of the applicants herein (who were respondents in that application) against entry into the premises of the market through themselves or anyone acting on their instructions pending the hearing and determination of the application. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4546/eng@2026-01-15 2

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13. Another pertinent prayer in this later application was for contempt of court against the 1st respondent Chief Officer, Trade & Enterprises Development and County Engineer Hassan Ngalaa, the County Governor H.E. Fatuma Achani, the village administrator Mr. Suleiman Shibe, the market officer, Mr. Kevin Bongo, the County Police Commander Mr. Josphat Kinyua, the OCS Kwale police station, Mr. Philip Ngata and calling for their punishment by way of fine and committal to imprisonment for six months for disobedience of this court's orders dated 6th December 2021. 14. That application for contempt of court ended up at the Court of Appeal in Mombasa Civil Appeal No. E013 of 2022 Chief Officer, Trade & Enterprise Development, Kwale County and 2 others v. End to End Limited (consolidated) leading to a stay of the proceedings in this case for some time. Upon determination of the appeal on 22nd March 2024, the Court of Appeal ordered that the contempt of court application be given priority over other applications. That application was heard on the prayer for contempt of court only and determined by this court in a ruling delivered on 22nd November 2024. The prayer to reinforce the status quo order had been issued initially in a different earlier application, and therefore this court could not dispose of the same in the determination of the prayer for contempt of court. Therefore, the orders of status quo and prohibition against entry by the defendants into the market premises remained in force. 15. The defendants/applicants had also filed a Chamber Summons dated 16/11/2021 seeking orders of this court to stay the suit and refer the case to arbitration for final hearing and determination and for the court to vacate the interim orders issued on 1/11/2021 against the defendants. In a ruling delivered on 15th January 2025 this court ordered that the main suit be heard and concluded rather than take more time in hearing the plaintiff's application dated 8th November 2021, which had not been heard yet. 16. Again, the effect of this court's order of 15th January 2025 was that the orders of status quo and prohibition against entry by the defendant's into the market premises remained in force to-date. They are the orders that the present application seeks to have discharged, varied or set aside. 17. The application was disposed of by way of written submissions filed by learned counsels for both parties. The submissions are considered in the analysis that follows. 18. I have considered the application, the response thereto and the submissions by learned counsels. The issue for determination is whether or not the orders of temporary injunction issued by the court issued herein earlier should be discharged, varied or set aside. 19. Order 40 rule 7 of the Civil Procedure Rules provides that: “ Any order for an injunction may be discharged, or varied, or set aside by the court on application made thereto by any party dissatisfied with such order." 20. Learned counsel for the applicant/3rd defendant submits on the factors the court is required to take into account in considering an application under section 80 CPA as well as Order 40 Rule 7 CPR. He has cited several cases on the principles that should guide the court in considering an application to discharge, vary or set aside an order of injunction. 21. In James Juma Muchemi & Partners Limited v Barclays Bank Of Kenya & Another [2012] KEHC 5844 (KLR) Mabeya J, expressed the view that the jurisdiction under the provision of Order 40 Rule 7 was discretionary and like in all other discretions, the same must be exercised judiciously although there are no firm rules of law or practice that have been set down. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4546/eng@2026-01-15 3

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22. Another case cited is that of Edward Karanja Ragui v Barclays Bank of Kenya Ltd [2002] KEHC 1223 (KLR) where Ringera J. (as he then was) stated inter alia that:“ It is settled law that if an interlocutory injunction has been obtained by means of representation or concealment of material facts, the same will on the application of the party aggrieved be discharged". 23. In the case of Atlas Copco Customer Finance AB v Polarize Enterprises [2016] KEHC 7640 (KLR) the High Court at Nairobi also considered some of the factors that guide the exercise of the courts' discretion under Order 40 Rule 7 CPR to be as follows: “ It is imperative therefore that care be exercised to ensure that the Plaintiff is not merely out to have a re-think of the matter; and in this regard it is now trite that some of the factors that guide the exercise of the courts' discretion in this area of law are, but not limited to: a. proof that the injunction was obtained by concealment of facts which if presented would have worked against the granting of the injunction; b. a radical change in the circumstances of the suit, such that it is no longer necessary to have the injunction; c. proof that the general conduct of the holder of injunction is such that the court is impelled to discharge the injunction, for instance, where the injunction is being used to intimidate the Defendant or achieve an ulterior purpose; d. proof that the sustenance of the injunction would cause an injustice." 24. It is the applicant/3rd defendant's submission that the application satisfies these factors and therefore the temporary injunction should be discharged, varied or set aside. 25. Learned counsel for plaintiff/respondent on his part argued his submissions largely on the basis that the application does not meet the criteria for review as provided for under section 80 of the CPA and Order 45 of the CPR. I have not seen where learned counsel for the applicant/defendant has called for the application of Order 45 CPR herein as referred to by learned counsel for the respondent. This is not an application for review as provided for by Order 45 CPR but rather it is under Order 40 Rule 7 CPR as cited in the heading thereof. Order 40 Rule 7 CPR has different factors to consider as outlined in the decisions above. Therefore, the submission by learned counsel for the plaintiff/respondent that the application does not meet the criteria for review as set out under Order 45 is not correct. 26. I am persuaded to follow the decisions above on the factors to consider in determining an application to discharge, vary or set aside an order of injunction. 27. Although learned counsel for the applicant/3rd defendant has submitted on each of the factors that the court would consider in an application for discharge, variation or setting aside of an injunction as outlined in the cited cases, I believe this case largely turns on the issue of proof that the sustenance of the injunction would cause an injustice. 28. It is common ground to the applicant and the respondent that there is no security being provided for the premises at the Kombani market and as a result it has been vandalized and is in a sorry state. The court had occasion to witness for itself the state of vandalism on 15th July 2025 when it visited the site. Each of the parties is blaming the other for the sorry state of affairs. The applicant now prays that it wishes to safeguard the market from further vandalism, I believe at no extra cost to the plaintiff/ https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4546/eng@2026-01-15 4

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respondent. The plaintiff/respondent maintains that there should be no discharge, variation or setting aside of the order of temporary injunction because after all, the case is at advanced stage of hearing. 29. This court in its ruling dated 22nd November 2024 had occasion to address the parties on this issue thus: “ The final issue this court would like addressed is the greater public interest in the matter. There can be no dispute that a market that is meant for use by the members of the public and which is 85% to 100% completed in construction as indicated by the parties herein in their respective affidavits should not stay idle for so long due to this dispute. Then there is the fact of wastage where it is indicated that the structures are being vandalized meaning extra expense on the taxpayer besides the failure to utilize the facilities. This dispute needs to be resolved amicably at once and have the facilities utilized by the intended users, the public. I therefore wish to suggest that the parties consider taking up court annexed mediation to resolve the dispute." 30. Nothing has happened so far. During the hearing of the main suit, the court visited the premises and noted that it had been greatly vandalized. 31. There is no dispute that this matter has greatly advanced in the hearing of the main suit and it is now at the defence hearing stage. However, that is not a saving for the market. I am persuaded to agree with the applicant/3rd defendant that the sustenance of the temporary injunction would cause and continues to cause an injustice to it and especially to the greater public who are not even parties to this suit and may not understand what is going on. 32. The other issue which the applicant has raised in the application and which I have not seen the respondent/plaintiff contest is that there is a section of the market (the old market) that was in existence before the subject contract for construction of the new market was entered into by the parties. When this court visited the market during the hearing of the case, the said old market was pointed out and the court confirmed from the plaintiff that it did not form part of the contract. The court observed that the said old market is distinct from the new premises and can be accessed and used by traders without in any way affecting the new market premises the subject of the dispute. 33. Therefore, the existence of the temporary injunction against entry into the new market is unjustly hindering the operations of the old market which was not part of the contract that is the subject of the dispute between the parties. 34. The prayers sought by the plaintiff in its plaint dated 8th November 2021 are: a. A permanent injunction retraining the defendants by themselves or anyone acting through them from cancelling, terminating, readvertising, subcontracting and reissuing or awarding the tender No. CGK-EU/124/DTCDTI/2018-2019 for Proposed Construction of Fresh Produce Wholesale Market at Kombani-Waa Ng'ombeni Ward, Kwale County that was awarded to the plaintiff to another contractor. b. Damages for breach of contract. c. Specific performance. d. Full payment of works already completed. e. Interest in c and d above. f. Costs of the suit. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4546/eng@2026-01-15 5

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35. None of these prayers would be affected if the orders of temporary injunction issued earlier especially with regard to prohibiting the entry by the defendants into the market would be varied to allow entry for limited identified purposes. 36. Therefore, the order that comments to this court to issue is not to fundamentally change the order issued herein on 11th November 2021 and afterwards reinforced on subsequent occasions culminating in the order issued on 13th October 2022 against opening, launching, entry into premises of the market by the Respondents or anyone acting on their instructions but rather to preserve the substratum of the case, what can be termed as the new Kombani market. Otherwise, the same will dissipate and the parties herein will be litigating over nothing with the greatest hardship going to the members of the public who are supposed to be the beneficiaries of the project. 37. Consequently, it is hereby ordered that the orders made by this court on 11th November 2021 and extended on 17th November 2021 (not 18th November 2021) and further extended on 29th November, and on 6th December 2021 and reinforced on 13th October 2022 are hereby varied with the effect that the 3rd defendant is hereby allowed through itself or persons acting though it to: 34. a. enter the Kombani market premises, the subject of contract No. CGK-EU/124/ DTCDTI/2018-2019 for proposed construction of Fresh Produce Wholesale Market at Kombani-Waa Ng'ombeni Ward in Kwale County only for purposes of securing and fencing off the market to avoid further vandalism. b. operate the two pre-existing market sheds that were not part of the contract No. CGKEU/124/DTCDTI/2018-2019 for proposed construction of Fresh Produce Wholesale Market at Kombani-Waa Ng'ombeni Ward in Kwale County. The costs of this application shall be in the cause. DELIVERED, DATED AND SIGNED AT KWALE ON THE VIRTUAL PLATFORM, TEAMS THIS 15TH DAY OF JANUARY 2026. ANDAYI W. F. JUDGE In the presence of: Abdulaziz for Plaintiff/Respondent. N/A for the Defendants/Applicants. Ummu: Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4546/eng@2026-01-15 6

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