Rova Capital Ltd v Kenya Commercial Bank Ltd (Civil Case E061 of 2025) [2025] KEMC 400 (KLR)

Ojiambo Sande was the sole proprietor, yet the Plaintifi/Applicant and Ojiambo Sande & Company Advocates are distinct legal entities. 5. It was further averred by the Plaintifi/Applicant that as a consequence of the Defendant/Respondent’s unlawful actions, the Plaintifi/Applicant could not meet its obligations in the Collaboration Agreement dated 02nd May 2024 between it and Amos Natembeya Kisuya hence the instant Application. 6. The Defendant/Respondent opposed the instant Application through a set of confiicting Replying Afidavits sworn by Walter Klerry; a Credit Administration Manager, at the Defendant/Respondent’s Bungoma branch. The Defendant/Respondent also filed a set of confiicting written submissions. 7. The first Replying Afidavit was sworn on 24th March 2025 and filed through the CTS platform on 31st March 2025 at 1158hrs. The first set of written submissions was also filed on the same date. 8. The Defendant/Respondent averred in the said Replying Afidavit that they were not privy to any arrangement and/or agreement between the Plaintifi/Applicant and Amos Natembeya Kisuya regarding the funds held in the Plaintifi/Applicant’s bank account number 132xxxxx84. It was further avered on behalf of the Defendant/Respondent that since Robert Ojiambo Sande; a director in the Plaintifi/Applicant’s company, had defaulted in repaying a financial facility of Kshs. 1,250,000/= advanced to him by the Defendant/Respondent, the Defendant/Respondent was entitled to act in the manner they acted by ofisetting that defaulted loan through the funds held in the Plaintifi/Applicant’s account herein. 9. The second Replying Afidavit sworn by Walter Klerry on 02nd April 2025 was filed through the CTS platform on 02nd April 2025 at 15:08 hours, just some hours before delivery of this ruling. The other set of written submissions was also filed on the same date. 10. The Defendant/Respondent conceded in the said second Replying Afidavit that they had erroneously debited funds from the Plaintifi/Applicant’s account herein in ofisetting a financial facility of Kshs. 1,250,000/= advanced to Robert Ojiambo Masinde. They further averred that the funds debited by the Defendant/Respondent from the Plaintifi/Applicant’s account herein had since been credited in the Plaintifi/Applicant’s account, hence the instant Application had been overtaken by events. 11. It is noteworthy that the Defendant/Respondent neither wrote a letter to this court nor filed an Application seeking to expunge either of the Replying Afidavits and the written submissions herein before the delivery of this ruling. 12. In the circumstances, this court is of the considered view that in the face of the Defendant/ Respondent’s confiicting Replying Afidavits and written submissions on record, this court will only consider the Defendant/Respondent’s Replying Afidavit and written submissions filed as per the directions issued by this court on 04th March 2025. 13. Given the above, this court finds that the Defendant/Respondent’s Replying Afidavit and written submissions filed on 02nd April 2025 at 1508hrs, just a few hours before the delivery of this ruling, are not properly on record. Therefore, the same will not be considered by this court in determining the instant Application. Analysis & Determination 14. This court has duly considered the parties’ pleadings, submissions, annextures, and authorities relied upon by each party. The only issue for determination is whether the instant Application is merited. https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/400/eng@2025-04-03 2

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Whether the Application and the Orders sought are merited 15. Before determining whether this Application and the Orders sought are merited, this court notes that the Plaintifi/Applicant submitted at length on whether Rova Capital Limited and Robert Ojiambo Sande are separate legal entities, whereas the Defendant/Respondent sought this court to find that it was not privy to the Collaboration Agreement dated 02nd May 2024 between the Plaintifi/Applicant and Amos Natembeya Kisuya. 16. Ringera, J (as he then was) in Airland Tours & Travel Limited vs. National Industrial Credit Bank Nairobi (Milimani) HCCC No. 1234 of 2002 stated that in an interlocutory application, the Court is not required to make any conclusive or definitive findings of fact or law, most certainly not on the basis of contradictory afidavit evidence or disputed propositions of law. 17. The same position was adopted in Nairobi High Court Civil Case No. 517 of 2014 – Lucy Nungari Ngigi & 4 Others -vs- National Bank of Kenya Limited & Anor (eKLR) where it was stated: “ ....I am also aware that the 1st Defendant has raised issues in respect of the mortgage herein, their right to exercise the statutory power of sale, breach of the addendum, default of repayment of the loan etc. They have also raised some accountability issues from the 2nd Defendant on the purchase price. But even these queries should be reserved for and determined at the trial. These issues are in direct confiict with issues raised by the Plaintifis and the 2nd Defendant. At this stage I should not make any comments or findings, or express opinions on the substantive issues in controversy in order to avoid hurting the trial herein...” (Emphasis added) 18. Guided by the authorities above, this court will not, at this stage, descend into the arena of determining with finality whether Rova Capital Limited and Robert Ojiambo Sande are separate legal entities, and whether the Defendant/Respondent was privy to the Collaboration Agreement dated 02nd May 2024 between the Plaintifi/Applicant and Amos Natembeya Kisuya. 19. The duty of the court at this stage remains determining whether or not the Defendant/Applicant has established a prima-facie case which can only be properly determined at full trial. 20. The Applicant seeks injunctive orders. The principles guiding the grant of interlocutory injunction were set out in East African Industries vs. Trufoods [1972] EA 420 and Giella vs. Cassman Brown & Co. Ltd [1973] EA 358. In Nguruman Limited vs. Jan Bonde Nielsen & 2 Others [2014] eKLR the Court restated the law as follows: “ 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 https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/400/eng@2025-04-03 3

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Society [2001] Vol. 1 EA 86. If the applicant establishes a prima facie case that alone is not suficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will sufier, 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. It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or both that the question of balance of convenience would arise. The inconvenience to the applicant if interlocutory injunction is refused would be balanced and compared with that of the respondent, if it is granted.” 21. The Court of Appeal in the case of Nguruman Limited vs. Jan Bonde Nielsen & 2 others [2014] eKLR further opined that: “ …these are the three pillars on which rest 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… if the applicant establishes a prima facie case that alone is not suficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will sufier, in the event the injunction is not granted will be irreparable. In other words, if damages recoverable in law are 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.” 22. On whether the Defendant/Applicant has established a prima-facie case, this court has had the benefit of going through the annextures relied on by the Defendant/Applicant. The annextures include the Plaintifi/Applicant’s Cerificate of Incorporation issued on 30th October 2023, a Collaboration Agreement dated 02nd May 2024 between the Plaintifi/Applicant and Amos Natembeya Kisuya, as well as the payment voucher for Kshs. 1,348,892/= from the County Government of Bungoma. 23. The documents above, when weighed against the Defendant/Respondent’s afidavit evidence, show that the Plaintifi/Applicant has established a prima facie case on its interest and Amos Natembeya Kisuya’s interest in the Kshs. 1,150,279.30/= held in the Plaintifi/Applicant’s Kenya Commercial Bank account number 132xxxxx84. 24. That prima-facie case can only be dislodged or proved with finality after a full trial. 25. As regards proof of irreparable injury, Halsbury’s Laws of England, 3rd Edition Volume 21, Paragraph 739 page 352 which defines irreparable injury as; ‘injury which is substantial and could never be adequately remedied or atoned for by damages, not injury which cannot possibly be repaired and the fact that the plaintifi may have a right to recover damages is no objection to the exercise of the jurisdiction by grant of injunction, if his rights cannot be adequately protected or vindicated by damages. Even where the injury is capable of compensation in damages, an injunction may be granted, https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/400/eng@2025-04-03 4

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if the injury in respect of which relief is sought is likely to destroy the subject matter in question.’(Emphasis added) 26. The Defendant/Respondent submitted that the Plaintifi/Applicant will not sufier any irreparable damage if the orders sought are not granted given that the money in question is a specific sum of money that the Defendant/Applicant can easily refund the Plaintifi/Applicant if this suit is ultimately determined in the Plaintifi/Applicant’s favour. 27. Whereas that argument by the Defendant/Respondent may be attractive, this court relies on the case of Joseph Siro Mosioma vs. Housing Finance Company of Kenya Limited & 3 Others [2008] eKLR, where it was held as follows by Warsame J (as he was then): “ damages is not automatic remedy when deciding whether to grant an injunction or not. Damages is not and cannot be substituted for the loss which is occasioned by a clear breach of the law, in any case, the financial strength of a party is not always a factor to refuse an injunction. More so a party cannot be condemned to take damages in lieu of his crystalized right which can be protected by an order of injunction.” (Emphasis added) 28. The foregoing shows that the mere fact that one can be awarded damages for denial of an injunction does not deny an Applicant the necessary protection by way of an interim injunction. 29. There is no doubt that if this court finds the main suit in favour of the Plaintifi/Applicant, failing to preserve the subject matter of this suit at this stage may cause irreparable damage to the Plaintifi/ Applicant since it may face a suit from Amos Natembeya Kisuya for recovery of any money due to the said Amos Natembeya Kisuya. 30. Turning to the ingredient of balance of convenience, the Defendant/Applicant submitted that if the orders sought are not granted, the Plaintifi/Applicant will not sufier any inconvenience since the Defendant/Applicant is a financial institution without any cash fiow problems. That being the case, the Defendant/Respondent averred that if the main suit is ultimately determined in the Plaintifi/ Applicant’s favour, the Defendant/Respondent will easily release the amount in question to the Plaintifi/Applicant. 31. In Paul Gitonga Wanjau vs. Gathuthis Tea Factor Company Ltd & 2 Others [2016] eKLR, the Court expressed itself thus on this issue:“ Where any doubt exists as to the applicants’ right, or if the right is not disputed, but its violation is denied, the court, in determining whether an interlocutory injunction should be granted, takes into consideration the balance of convenience to the parties and the nature of the injury which the Respondent on the other hand, would sufier if the injunction was granted and he should ultimately turn out to be right and that which injury the applicant, on the other hand, might sustain if the injunction was refused and he should ultimately turn out to be right...Thus, the court makes a determination as to which party will sufier the greater harm with the outcome of the motion. If applicant has a strong case on the merits or there is significant irreparable harm, it may infiuence the balance in favour of granting an injunction. The court will seek to maintain the status quo in determining where the balance on convenience lies.”(Emphasis added) 32. Guided by the authority above and bearing in mind that this court has already made a finding that the Plaintifi/Applicant established a prima-facie case and that the Plaintifi/Applicant will https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/400/eng@2025-04-03 5

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sufier irreparable damage if the orders sought herein are not granted, it follows that the balance of convenience tilts in favour of the Plaintifi/Applicant. 33. In any event, the financial strength of a party is not always a factor to refuse an injunction (see Joseph Siro Mosioma case (supra)). DETERMINATION 34. For the reasons above, the following orders commend to this court:a. The Defendant/Respondent is restrained from converting, deducting and/or transferring the sum of Kshs. 1,150,279.30/= held in the Plaintifi/Applicant’s Kenya Commercial Bank account number 132xxxxx84 at the Defendant/Respondent’s institution pending the hearing and determination of the main suit b. Costs of this Application be in the cause READ, SIGNED, AND DELIVERED IN OPEN COURT AT BUNGOMA THIS 03RD DAY OF APRIL 2025 T.O. OMONO RESIDENT MAGISTRATE In the presence of: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/400/eng@2025-04-03 6

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