Omuruga v Lagrab Micros & another (Civil Suit E234 of 2025) [2025] KEMC 434 (KLR)

goods, in particular the goods described and/or listed in the notification of sale dated 20 th May 2025 and in particular the auction scheduled for 22nd May 2025 pending the hearing and determination of this application and suit 3. That this Honourable Court be pleased to issue any other or further orders it deems fit in the circumstances 4. That costs be provided for 3. The Application before this court was grounded on the grounds set out on its face and further grounds set out in the Applicant’s Supporting Affidavit herein sworn on 21st May 2025. 4. The gist of the instant Application is that the Applicant did not offer the goods proclaimed herein by the 2nd Respondent as security for any loan, which is disputed, reportedly disbursed by the 2 nd Respondent to the Applicant. 5. The Applicant also averred that the Respondents did not comply with the provisions of the Movable Property Security Rights Act before proceeding with the impugned proclamation and attachment herein. 6. Further, the Applicant deponed that in any event, if there existed a loan arrangement between the Applicant and the 1 st Respondent, the 1st Respondent was an unsecured creditor who needed to proceed with execution against the Applicant after obtaining a judgment and a decree against the Applicant. 7. The 1st Respondent opposed the instant Application through a Replying Affidavit sworn by Gabriel Juma on 27th June 2025 where the affiant termed the instant Application as frivolous, scandalous and an abuse of the court process. 8. He added that the Applicant offered one brown bull, two black bulls, one brownish bull, and one brown heifer as security for the loan advanced to him by the 1st Respondent. He annexed a copy of an undated loan agreement (GJ-1) to support his averments. He further

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stated that the 1st Respondent and his wife one Phanice Idionyi Omurunga visited the 2nd Respondent where they made part payments towards settlement of the alleged outstanding loan. 9. The 2nd Respondent on the other hand opposed the instant Application through a Replying Affidavit sworn on 27th June 2025. She averred that she followed due process in proclaiming and attaching the Applicant’s property as evidenced by the instruction letter (JNS-2), the Proclamation Notice (JNS-3), and the Notification of Sale (JNS-5). 10. She also deposed that through a commitment letter dated 20 th May 2025 (JN-6) the Applicant and his wife one Phanice Idionyi Omurunga committed to payment of the loan owed to the 1 st Respondent within 72 hours. She also placed before this court receipts (JNS-7) showing that the Applicant and his wife reportedly paid Kshs. 5,000/= each in partial payment of the loan allegedly owed to the 1 st Respondent. 11. The 2nd Respondent also averred that the continued stay with the proclaimed goods/cows was causing her loss since she was expected to feed the proclaimed cows. She also complained that one of the proclaimed cows had even died. 12. In the circumstances, the 2nd Respondent urged this court to find the instant Application as scandalous, frivolous, and an abuse of the court process. 13. The Applicant filed a further Affidavit sworn on 30 th June 2025 reiterating that he did not owe the 1ST Respondent money, that he never used the proclaimed goods as security for a loan, that if there was any loan disbursed then the 1 st Respondent was an unsecured creditor, and that there was no evidence that the 1st Respondent registered security rights in their favour as against the Applicant under the Movable Property Security Rights Act.

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14. The instant Application was canvassed by way of written submissions. Whereas the Applicant filed their written submissions, the Respondents did not file theirs. ANALYSIS & DETERMINATION 15. 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. Whether the Application and the Orders sought are merited 16. Before determining whether this Application and the Orders sought are merited, it is not lost to this court, and as rightfully submitted by the Applicant, that this court should refrain from making definitive findings of fact capable of disposing of the main suit at this interlocutory stage based on the conflicting Affidavit evidence before it. 17. 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 affidavit evidence or disputed propositions of law. 18. The same position was adopted in Nairobi High Court Civil Case No. 517 of 2014 – Lucy Nungari Ngigi & 4 Others -vsNational 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

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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 conflict with issues raised by the Plaintiffs 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) 19. Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125, the Court of Appeal held stated that: “…..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…” 20. Having fully appreciated the principles of law set out in the authorities cited above, this court will confine itself to the issue of determining whether the Applicant has made out a case for the grant of injunctive orders. 21. The principles guiding the grant of an interlocutory injunction in this jurisdiction were set out in East African Industries vs. Trufoods [1972] EA 420 and Giella vs. Cassman Brown & Co. Ltd [1973] EA 358. Those principles were restated in Nguruman Limited vs. Jan Bonde Nielsen & 2 Others [2014] eKLR where the court rendered itself thus: “In an interlocutory injunction application, the applicant has to satisfy the triple requirements to; (a) establish his case only at a prima facie level,

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(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. 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.” 22. This court will now proceed to determine sequentially whether the Applicant has satisfied the principles for the grant of injunctive orders.

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23. On whether the Applicants have established a prima-facie case, this court has had the benefit of going through the pleadings and the annextures placed before this court by the parties herein. 24. It is given that the Applicant and the Respondents have taken divergent positions on whether there exists a debtor – creditor relationship between the Applicant and the 1st Respondent. Whereas the Respondents maintain that the Applicant received a loan from the 1st Respondent and even made a commitment towards repayment of that outstanding loan, the Applicant disputed the existence of that loan. 25. In the alternative, it is the Applicant’s position that if there exists a debtor-creditor relationship between him and the 1 st Respondent, the 1st Respondent was an unsecured creditor who should recover any loan due from the Applicant by first obtaining a judgment and a decree against the Applicant before execution instead of proceeding with execution as they did in this matter. The Applicant also decried noncompliance with the provisions of the Movable Property Security Rights Act by the Respondents in levying execution and proclamation in this matter. 26. The Respondents on the other hand maintained that they fully complied with the law before levying execution, proclamation, and attachment in this matter. 27. In the Mrao Ltd Case (supra) the Court of Appeal defined a Prima- facie case as follows: ‘…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, 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,

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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…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.’ 28. The question that abounds at this stage is whether the Applicant has made out a prima-facie case on whether the Respondents acted within the law and more specifically within the four corners of the Movable Property Security Rights Act. 29. It is common ground that the attached livestock were proclaimed and attached from the Applicant’s homestead. That shows that the Applicant established an equitable and/or legal interest in the proclaimed livestock. 30. This court has duly considered the evidence placed before this court by the Respondents on whether they complied with the law before levying execution. The Replying Affidavit sworn by the 1st Respondent herein listed several cows that the Applicant used as security in obtaining the disputed loan from the 1st Respondent. The cows listed in that Replying Affidavit contradict the contents of the unsigned schedule of securities attached to the loan application form filed before this court by the

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Respondents. It is also worth noting that the said schedule of securities was not signed by the Applicant. 31. Further, even if this court is to believe that the Applicant used the proclaimed livestock as security in obtaining a loan from the 1 st Respondent, there is doubt at this stage on whether the 1st Respondent complied with the provisions of the Movable Property Security Rights Act in perfecting the security and levying execution against the Applicant. 32. In view of the above and guided by the authority above on what constitutes a prima-facie case in interlocutory applications, this court holds and finds that the Applicant has established a prima facie case of whether the Respondents proclaimed and attached the Applicant’s property/livestock within the law and more specifically within the four corners of the Movable Property Security Rights Act. 33. Turning to proof of irreparable injury, Halsbury’s Laws of England, 3rd Edition Volume 21, Paragraph 739 page 352 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 plaintiff 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, if the injury in respect of which relief is sought is likely to destroy the subject matter in question.’(Emphasis added) 34. It is common ground that the 2nd Respondent attached the Applicant’s livestock set out in the Proclamation Notice herein, and

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that as per Notification of Sale dated 20 th May 2025, the livestock were scheduled for auction on 22nd May 2025. 35. The foregoing shows that if the injunctive orders sought herein are not granted, the 2nd Respondent will proceed with the sale of the proclaimed livestock by auction, thereby permanently depriving the Applicant of their livestock. Such an action is likely to defeat the Applicant’s right to repossess the proclaimed livestock if, at the end of the day, this court makes a finding that the process of proclaiming and attaching the Applicant’s livestock was a nullity in law. That will cause damage to the Applicant. 36. This court is well aware of pronouncements in various High Court decisions that where damage to be suffered by a party can be compensated by way of damages, the court should not grant an injunctive order. 37. Whereas that argument may sound attractive, this court associates itself with the holding in Joseph Siro Mosioma vs. Housing Finance Company of Kenya Limited & 3 Others [2008] eKLR, where it was stated 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) 38. 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.

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39. If this court were to take the position that an injunctive order can not be granted just because just because the alleged offending can ultimately pay damages to the aggrieved party, it would mean that a party with the capacity to pay damages may be at liberty to trample upon the law as they wish knowing very well that their unlawful actions will only attract an order for damages against them. This court can not countenance such conduct. 40. In the circumstances, this court holds and finds that if the main suit is ultimately determined in favour of the Applicant, failing to preserve the proclaimed livestock suit at this stage may cause irreparable damage to the Applicant. 41. Turning to the ingredient of balance of convenience, this ingredient was defined in Pius Kipchirchir Kogo vs Frank Kimeli Tenai (2018) eKLR as follows: ‘The meaning of balance of convenience in favour of the Plaintiff' is that if an injunction is not granted and the Suit is ultimately decided in favour of the Plaintiffs, the inconvenience caused to the Plaintiff would be greater than that which would be caused to the Defendants if an injunction is granted but the suit is ultimately dismissed. Although it is called balance of convenience it is really the balance of inconvenience and it is for the Plaintiffs to show that the inconvenience caused to them will be greater than that which may be caused to the Defendants. Inconvenience be equal, it is the Plaintiff who will suffer.In other words, the Plaintiff has to show that the comparative mischief from the inconvenience which is likely to arise from withholding the injunction will be greater than that which is likely to arise from granting”. The 2nd Respondent averred that she is incurring expenses through herding and purchase of animal feeds for the proclaimed livestock during the pendency of the auction. The 2 nd Respondent also added

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that one of the proclaimed cows had died in their custody hence it would only be just that the auction of the proclaimed livestock proceeds. On the face of it, this shows that the 2nd Respondent may be inconvenienced if the injuctive orders sought by the Applicant are granted. On the other hand, the proclaimed livestock will be sold by auction if the injunctive orders sought are not granted, thereby permanently depriving the Applicant of his cows. That loss, as held earlier in this ruling, can not be remedied through an award of damages since the damages will only help the Applicant buy other cows, not the cows he would have lost through auction. 42. This court is of the considered view that the inconvenience caused to the 2nd Respondent by staying with the cows if the injunctive orders sought are granted can be remedied by way of an award of costs/damages if this court ultimately finds that the process of proclamation and attachment of the Applicant’s livestock was lawful. 43. It is for the reasons above that this court finds and holds that the balance of convenience tilts in favour of the Applicant. 44. Be that as it may, it has been held in this jurisdiction that where the Applicant surmounts the first two of the three hurdles required before a court grants injuctive orders, the court needs to maintain the status quo in determining where the balance of convenience lies. To this end, this court draws inspiration from Paul Gitonga Wanjau vs. Gathuthis Tea Factor Company Ltd & 2 Others [2016] eKLR, where the Court expressed itself thus on this issue:"…If applicant has a strong case on the merits or there is significant irreparable harm, it may influence the balance in favour of granting an injunction. The court will seek to

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maintain the status quo in determining where the balance of convenience lies.”(Emphasis added) DETERMINATION 45. For the reasons above, the following orders commend to this court:a) The 1st and 2nd Defendant/Respondents are restrained, whether by themselves or through any other person acting on their behalf, from selling or otherwise in any other way disposing of, the livestock set out in the Proclamation Notice herein pending the hearing and determination of this suit b) The 1st and 2nd Respondents are directed to ensure that the proclaimed goods/livestock remain in good health and do not leave the jurisdiction of this court pending the hearing and determination of this suit c) For expeditious disposal of this matter, the parties herein are ordered to comply with Order 11 of the Civil Procedure Rules within 30 days from the date hereof d) Costs of this Application shall be in the main suit. Read, signed, and delivered in open Court at Bungoma this 10 th day of July 2025 T.O. OMONO RESIDENT MAGISTRATE In the presence of: Mr. Anwar h/b for Wayong’o for the Defendant/Respondent C/A: Albert

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