ELLY NYAMBUO OSIMBO VS ALFRED ODAK KADRI AND State Law AND 4 Others

1. The 1^st respondent filed in the trial court a notice of motion dated 7^th December, 2020 seeking the following;
   1. The honourable court be pleased to certify this application urgent and to be heard ex-parte in the first instance.
   2. Pending the hearing and determination of this application inter-parties, the honourable court be pleased to issue interim orders against the respondents restraining them, their agents, representatives, assigns or any other person acting through them from selling by public auction, private treaty, transferring, disposing off, and or in any way dealing with the applicant’s motor vehicle registration number KAS 594m Toyota Hillux.
   3. Pending the hearing and determination of this application inter parties, this court be pleased to issue an order directing the 4^th respondent to impound motor vehicle registration number KAS 594M Toyota Hillux and keep it in their custody.
   4. Pending the hearing and determination of this suit, there be temporary injunction against the respondents restraining them, their agents, representatives, assigns or any other person acting through them from selling by public auction, private treaty, transferring, disposing off, and or in any way dealing with the applicant’s motor vehicle registration number KAS 594m Toyota Hillux.
   5. Pending the hearing and determination of the main suit, this court be pleased to issue an order directing the 4^th respondent to impound motor vehicle registration number KAS 594M Toyota Hillux and keep it in their custody.
   6. Costs of the application.
2. The application was supported by the 1^st respondent’s affidavit sworn on even date where he deponed that he was the registered owner of the subject motor vehicle which he gave to his friend on understanding that the same would be returned whenever the appellant needed it. He deponed that early in the year 2020, he found out that his vehicle had been illegally auctioned and transferred to the 2^nd respondent.
3. He deponed that he reported the matter and police preferred a miscellaneous application which was determined in favour of the 2^nd respondent. That the 2^nd respondent is not entitled to the motor vehicle as the motor vehicle did not belong to the 1^st respondent.
4. The 2^nd respondent filed a replying affidavit deponing inter alia that he bought the vehicle vide a public auction. That after being declared the highest bidder, he commenced the process of transfer which was successful and has been in possession of the vehicle since then. He disputed the appellant’s allegation that he had never known of the sale and subsequent transfer.
5. By a ruling of that court, the application was allowed in terms that an injunction was issued restraining the respondents from selling the motor vehicle and directed the 4^th respondent to impound the vehicle and keep in its possession.
6. Aggrieved by the ruling, the appellant moved this court raising the following grounds;
   1. The learned trial magistrate erred by failing to find and hold that the 1^st respondent’s application dated 7/12/2020 did not meet the threshold for grant of temporary injunction.
   2. The learned trial magistrate erred by finding that motor vehicle registration number KAS 594M was not amongst the items proclaimed by the 3^rd respondent and therefore should not have been sold with the result that the auction was illegal and improper in total disregard to evidence to the contrary in the 1^st respondent’s supporting affidavit sworn on 7/12/2020.
   3. The learned trial magistrate erred by failing to appreciate that the appellant being an innocent purchaser for value at an auction and without any notice of any patent or latent defect in the title of the suit motor vehicle held by the 3^rd respondent as auctioneer ought to have been accorded equal protection before the law by the imposition of a security for damages equivalent to the value of the suit motor vehicle as condition for the grant of the temporary injunction especially the order for the impounding and keeping of the suit motor vehicle at the police station for the duration of the case, a fact that would no doubt lead to the irredeemable wasting of the suit motor vehicle.
   4. The learned trial magistrate erred in law and fact in failing to consider the affidavit evidence filed by the appellant and the 3^rd respondent herein in determining the impugned application dated 7/12/2020as a result of which she arrived at a decision not supported by evidence or the law.
   5. The learned trial magistrate erred by failing to find that the 1^st respondent having failed to raise an objection to the sale of the suit motor vehicle upon its attachment and proclamation by the 3^rd respondent was guilty of laches and indolence and was therefore not a suitable candidate for the grant of an injunctive relief in the circumstances of the case.
   6. The learned trial magistrate erred in failing to find and hold that an award of damages in the circumstances of this case could wholly compensate the 1^st respondent as his purported loss was ascertainable and quantifiable rather than an award of an injunction.
   7. The learned trial magistrate erred by failing to consider the appellant’s evidence and submissions in reaching determination of the 1^st respondents, application dated 7/12/2020.
7. By directions of the court, the appeal was disposed of by way of written submissions and orally highlighted by the 1^st respondent. 

Analysis and determination.

1. The duty of this court sitting as a first appellate court was stated in Mursal & another v Manese (suing as the legal administrator of Dalphine Kanini Manesa) (Civil Appeal E20 of 2021) [2022] KEHC 282 (KLR) (6 April 2022) (Judgment) thus;

A first appellate court is mandated to re-evaluate the evidence before the trial court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand.

1. The genesis of the instant appeal is the trial court’s allowing the 1^st respondents application dated 7/12/2020 whose prayers are as set out in the opening paragraphs of this judgment.
2. From my analysis of the pleadings and submissions, I am of the view that the issue for determination is whether the trial court erred in allowing the said application.
3. I have perused the said application and find that the main prayers sought in the application was temporary injunction in which the court correctly addressed itself to the governing principles enunciated in Giella V Cassman Brown & another (1973)EA 358 which established that for a grant of injunction to ensue, one must establish;
   1. A prima facie case with probability of success.
   2. The applicant stands to suffer substantial loss which cannot be compensated for by way of damages.
   3. If the court is in doubt, it can decide on a balance of convenience. 
4. I have also perused the ruling under review and the trial court having comprehensively captured the parties respective averments and disposition found as matter of fact firstly that
5. The legal regime governing the grant of injunction is Order 40 rule 1 of the Civil Procedure Rules which enacts;

Where in any suit it is proved by affidavit or otherwise—

1. that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or
2. that the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders.
3. From the evidence on record, the dispute herein revolved the ownership and or use of the subject motor vehicle then in the hands of the appellant. It was also evident from the material placed before the trial court that the motor vehicle had been transferred into the appellant’s name.
4. From the material placed before the trial court, the plaintiff (1^st respondent) herein had a claim over the motor vehicle on the basis that he had given the vehicle to a friend from whom the vehicle was sold by auction over his own liabilities.
5. It is my view that from the material placed on the trial court, the court was perfectly entitled to prevent the acts contemplated in Order 40 Rule 1 of the Civil Procedure Rules and ensure the property is preserved pending the determination of the suit.
6. From my analysis of the matter, the trial court cannot be faulted for issuing the orders it gave as the same were geared at preserving the subject matter from alienation, waste and or transfer.
7. The upshot is that the instant appeal is devoid of merit and is hereby dismissed with costs to the 1^st respondent.

Delivered, Dated, and Signed at Kisumu this 27th day of August 2024