PLATINUM TRADERS LTD V EAST AFRICAN PORTLAND CEMENT & CO. LTD & ANOTHER [2012] KEHC 2189 (KLR)
- Court
- High Court of Kenya
- Case number
- 2189
- Citation
- [2012] KEHC 2189 (KLR)
- Decided
- 28 September 2012
AI Summary
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TypeInjunction ApplicationPosturePlaintiff seeks injunctive orders to restrain the 1st Defendant from demanding payment and the 2nd Defendant from paying a sum of Kshs.71,883,922/72 pursuant to certain guarantees given by the Plaintiff.CoramA. MABEYA
Holding
The application is allowed as prayed. However, the parties are reminded of the provisions of Order 40 Rule 6 of the Civil Procedure Rules.
Facts
The Plaintiff was appointed as a distributor of the 1st Defendant's cement in Garissa and Nairobi East subject to guarantees of Kshs.5 million and Kshs.10 million, respectively. The 1st Defendant demanded payment for Kshs.71,883,922/72 on the two guarantees given by the 2nd Defendant.
Issues
- Whether the Plaintiff's rights have been infringed by the 2nd Defendant as to call for an explanation or rebuttal by the latter.
- Whether the liability to pay the sum of Kshs.71,883,932.72 other than the impugned guarantee arises out of an agreement dated 29th January, 2009.
Reasoning
The court found that the Plaintiff had established a prima facie case and that the balance of convenience tilts in favour of allowing the injunction and leaving the money in the vaults of the 2nd Defendant.
Outcome
The application is allowed.
Orders
- The Plaintiff’s Notice of Motion dated 3rd May, 2012 brought under order 40 Rules 1, 2 and 9 of the Civil Procedure Rules seeking injunctive orders to restrain the 1st Defendant from demanding payment and the 2nd Defendant from paying a sum of Kshs.71,883,922/72 pursuant to certain guarantees given by the Plaintiff is allowed.
- The parties are reminded of the provisions of Order 40 Rule 6 of the Civil Procedure Rules.
Remedies
- The Plaintiff’s Notice of Motion dated 3rd May, 2012 brought under order 40 Rules 1, 2 and 9 of the Civil Procedure Rules seeking injunctive orders to restrain the 1st Defendant from demanding payment and the 2nd Defendant from paying a sum of Kshs.71,883,922/72 pursuant to certain guarantees given by the Plaintiff is allowed.
Authorities cited
Cases cited (1)
- Mrao Ltd –vs- First American Bank of Kenya Ltd (2003) KLR 125
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