Republic v Cabinet Secretary, Ministry of East African Community and Regional Development; Ewaso Ngiro North Development Authority & another (Interested Parties); Exparte Omar Mohamed Sheikh [2018] KEELRC 59 (KLR)
The bottom line
#A Kenyan court refused to freeze a bank account because the applicant provided no real evidence of wrongdoing, and struck out the lawyer's affidavit for breaching professional conduct rules.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Respondent/Applicant is entitled to the order of injunction sought.
- 2.Whether the Affidavit in support of the Application should be struck out
Key legal issues
#Whether the Respondent/Applicant demonstrated a prima facie case with probability of success
No prima facie case was demonstrated; there was no evidence of misappropriation or mismanagement by the Ex parte Applicant
The application rested on a single cheque drawn in favour of Standard Group Limited. The court found no proof that the Ex parte Applicant drew or signed the cheque, benefited from it, or that the payment was not lawfully owed. The deponent did not disclose the source of the cheque or his information, rendering the evidence hearsay and insufficient under the Mrao test.
Whether the Respondent/Applicant demonstrated irreparable damage
No irreparable damage was demonstrated; the Respondent did not swear an affidavit showing how it would suffer such damage
The application was supported only by an affidavit of counsel alleging mismanagement of public funds, with no further evidence of misappropriation placed before the court. The court held there was no demonstrated risk of irreparable damage satisfying the second Giella principle.
Whether the balance of convenience favoured the grant of the injunction
No material showed that inconvenience to the Respondent would exceed that caused to the Ex parte Applicant if the order were granted
Applying the Kogo v Tenai formulation, the party seeking the injunction must show that its comparative inconvenience from withholding the order is greater. The court found no material before it establishing this, and the third Giella limb therefore also failed.
Whether the supporting affidavit sworn by the Respondent's advocate should be struck out
The affidavit was struck out for offending Rule 9 of the Advocates Practice Rules and the rules of evidence
The advocate deposed to contentious matters of fact on undisclosed information, making him a potential witness contrary to Rule 9 of the Advocates Practice Rules, and his averments amounted to inadmissible hearsay. Following Regina Waithira Mwangi Gitau v Boniface Nthenge, the court struck out the affidavit.
Legal principles established
#- A prima facie case in civil matters requires evidence showing an infringement of a right and probability of success, being more than an arguable case (as defined in Mrao Ltd v First American Bank of Kenya Ltd)
- An advocate should not swear an affidavit deposing to contentious evidentiary facts on behalf of a client, though an affidavit on matters within the advocate's knowledge from handling the suit is not defective
Court orders
#- 1.The supporting affidavit of Ernest Mutinda Kioko, counsel for the Applicant/Respondent, is struck out
- 2.The Notice of Motion dated 11th December 2018 is dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction over the judicial review/suit proceedings before the court; no specific constitutional or statutory provision cited in the judgment
Relief refused
#Temporary injunction to stop the Ex parte Applicant from accessing, authorising payments from, withdrawing funds from and operating the 1st Interested Party's bank accounts at KCB Isiolo Branch pending hearing and determination of the suit
The Respondent failed to establish a prima facie case, irreparable damage, or that the balance of convenience favoured granting the injunction
Costs
No costs order recorded in the judgment; the Respondent/Applicant's prayer for dismissal with costs was not expressly addressed
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I do not find any demonstrated risk of misuse of funds by the ex parte applicant or any evidence of mismanagement by the ex parte Applicant.
It is on the basis of the foregoing that I find that the respondent has not demonstrated a prima facie case warranting the grant of the orders sought.
I am persuaded that the supporting affidavit by Ernest Mutinda Kioko counsel for the Applicant/Respondent offends both the provisions of Rule 9 of the Advocates Practice Rules and the Rules of Evidence. I accordingly strike it out.
The result is that the application fails and is accordingly dismissed. DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 20TH DAY OF DECEMBER 2018
Issues in the judgment
#The judgment does not state the case number, the names of the parties, or the neutral citation; parties are referred to only by their procedural designations
The judgment refers to the Ex parte Applicant as 'Claimant' at one point, an inconsistent designation
The judgment refers to the Interested Party variously as '1st Interested Party' and '1st Respondent' without explanation
No costs order is recorded despite the Respondent praying for costs
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Cabinet Secretary, Ministry of East African Community and Regional Development; Ewaso Ngiro North Development Authority & another (Interested Parties); Exparte Omar Mohamed Sheikh [2018] KEELRC 59 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/59/eng@2018-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.