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JudgmentBhai Omar Al Amin VS Asl Credit Limited6 min read

Bhai Omar Al Amin VS Asl Credit Limited

High Court at Milimani High Court · · J.W.W. Mongare


  1. The background to the dispute giving rise to this appeal, as expressed in the pleadings, may briefly be stated thus: The Appellant herein filed a Notice of Motion before the trial court seeking a temporary order of injunction and an interlocutory mandatory injunction against the Respondent. However, the Application was dismissed on the ground that the Appellant had not made put a prima facie case as the Appellant was in default of the Hire Purchase Facilities. This Appeal arises from that ruling.
  2. Subsequently, the Appellant, BHAI OMAR AL AMIN, being dissatisfied and aggrieved by the Ruling of the Chief Magistrate’s Court of Kenya at Nairobi, by the Honorable Hon. Mmasi (SPM), delivered on 8th December 2020, hereby Appeals against the whole of the said Ruling

and Order thereof on the following grounds: -

  1. The Learned Magistrate erred in law and in fact in ignoring and failing to consider the mandatory provisions of Section 4 of the Hire Purchase Act Cap 507 and to hold that the provisions prima facie rendered the otherwise unregistered Hire Purchase Agreements unenforceable and prohibit repossession.
  2. The Learned Magistrate erred in law and in fact in failing to hold that the Applicant had prima facie fully repaid the Hire Purchase amounts upfront and the purported balance was an artificial creation by the Defendant comprising of illegal debits capitalized.
  3. The Learned Magistrate erred in law and in fact in failing to hold that the repossession was prima facie illegal and in contravention of section 3 and 15 of the Hire Purchase Act, Cap 507 Laws of Kenya.
  4. The Learned Magistrate erred in law and in fact in failing to consider the implication of Section 15 of the Hire Purchase Act, Cap 507 Laws of Kenya which prohibit repossession of goods under a Hire Purchase Agreement when 2/3 of the Hire Purchase price has been paid. 
  5. The Learned Magistrate erred in law and in fact in failing to hold that Section 3 of the Hire Purchase Act, Cap 507 Laws of Kenya does not operate where the value of the subject matter exceeds Kshs. 4 Million.
  6. The Learned Magistrate erred in law and in fact in completely ignoring authorities in CHARLES GICHANA ANGWENYI v NATIONAL INDUSTRIAL CREDIT BANK LIMITED & another [2009] eKLR, Simon Muiruri Wanjohi -vs- Resma Commercial Agencies Nakuru HCA No. 91 of 2002, Pals Car Ltd -vs- CMC Motors Ltd & 2 Others – Nakuru HCCC No.171 of 2005 and David Karobia Kiiru v Laverage Company Ltd [2017] eKLR which were binding upon her.
  7. The Learned Magistrate erred in law and in fact in completely ignoring and failing to fully adjudicate the issues placed before her in making her determination.
  8. That the Learned Magistrate erred in law and in fact in completely ignoring the Applicants grounds on the face of application, submissions and authorities filed without giving any reason whatever.
  9. That the Learned Magistrate erred in law by rendering a ruling in absence of the parties without notice.
  10. That the Learned Magistrate erred in law by determining the issue of indebtedness in finally in an interlocutory application and against the weight of evidence to the contrary.
  11. That the Learned Magistrate erred in law in condoning apparent illegality orchestrated against the Applicant by the Respondent. 
  12. The Learned magistrate erred in law and in fact in considering extraneous facts that were not relevant to the issues for determination and in failing to consider relevant facts and documents.
  13. The Appellant prayed for orders that:-
  14. The appeal be allowed and the Ruling of the Chief Magistrate’s Court delivered on 8th December 2020 be set aside and in lieu thereof an order be made allowing the Plaintiff’s Application

dated 24th February 2020.

  1. Costs of this appeal and the costs of the Application in the subordinate Court be awarded to the Appellant.
  2. Alternatively, to the above, the Court orders a Re-trial of the Application before a different Magistrate.
  3. The Appeal was canvassed by way of written submissions which the court has carefully considered alongside the record of appeal. The court notes that the only issue that arises for determination is whether the appeal is merited.

Analysis and Determination

  1. I have carefully considered the Record of Appeal together with the record of the lower court, the grounds set out in the Memorandum of Appeal and the parties’ arguments as contained in their rival submissions and cited authorities. I note from a careful analysis of the same that the issue that arises for determination is whether the learned trial magistrate ought to have granted an order of injunction.
  2. It is noteworthy that this is an interlocutory appeal since the hearing of the suit on merits before the trial court is yet to take place. Accordingly, the court will restrict itself to the impugned Ruling that has been appealed against and not delve into the issues that are yet to be

determined by the trial court.

  1. The issue that the trial court was set to determine was whether the Appellant herein had satisfied the conditions set in law to warrant the issuance of an interim injunction pending the hearing and determination of the suit therein.
  2. It is well established that, in order to secure the injunctive relief first establish a prima facie case with a high chance of success must be established. From the record, I note that the trial court held that the Appellant had not made a prima facie case by being in default on the Hire Purchase facilities. Further, that the Appellant had failed to point out a right that had been infringed by the Respondent.
  3. It was the Appellant’s case that she raised a prima facie case stating that Section 15 of the Hire Purchase Act prohibits repossession of goods under a Hire Purchase Agreement when 2/3 of the Hire Purchase price has been paid.
  4. On the other hand, the Respondent maintained that the Appellant had not proved her case that she had fully repaid the hire purchase amount and that the purported balance was an artificial creation by the

Respondent.

  1. The question that still comes up is whether the Appellant made out a prima facie case for grant of an interim order of injunction. What is to be determined as prima facie case was defined in the case of Mrao Ltd vs. First American Bank of Kenya Ltd & 2 others [2003] eKLR where the Court of Appeal held that –

‘...a case 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 as to call for an explanation or rebuttal from the latter.’

  1. In this case, the Appellant ought to have demonstrated that it had a valid claim that the repossession of the suit motor vehicles by the Respondent infringed on the contractual rights of the Appellant. It is not in contention that the Appellant defaulted in repaying the financed amount. The fact that the Appellant admitted default in repaying the outstanding amount makes it harder for them to establish a prima facie case from the onset.
  2. In light of the foregoing, it is the court’s considered view that the Appellant has failed to demonstrate a prima facie case with a chance of success. The question of compensation by way of damages, if the interlocutory injunction was not granted, does not arise since the values of the motor vehicles are quantifiable. I am therefore satisfied that the balance of convenience tilts to the Respondent rather than the Appellant in the present application.
  3. It is also notable that on one hand the Appellant argued that under Section 3 of the Hire Purchase Act, the Act does not apply to Hire Purchase Agreements where the value of goods exceeds Kshs.4,000,000/= and on the other hand the Appellant relied on the very same Act under Section 15 which prohibits repossession of goods. The Appellant herein did not raise the issue of Section 3 in the Application before the trial court which is subject of the impugned Ruling and the same cannot therefore be raised at this point as the trial court did not consider it. In my view, these are issues to be determined during the hearing and determination of the suit therein.
  4. For the above reasons, the court finds that the Appeal before it lacks merit and is hereby dismissed with costs to the Respondent.

DATED, SIGNED AND DELIVERED VIRTUALLY at NAIROBI this 12TH DAY OF NOVEMBER 2024

………………………………..

J.W.W. MONG’ARE

JUDGE

In the Presence of:-

        1. N/A for the Appellant.
        2. Ms. Jane Okoth for the Respondent.
        3. Amos - Court Assistant
    Bhai Omar Al Amin VS Asl Credit Limited Bhai Omar Al Amin VS Asl Credit Limited