1. The plaintiff seeks an injunction restraining the defendant, its auctioneers, agents, servants, employees, or any other person working on its behalf, from selling, transferring, effecting any change of ownership, or in any other way interfering with the subject motor vehicles, namely UD Trucks Quester EM11 Prime Mover of Reg No KDC 331L, UD Trucks Quester EM11 Prime Mover of Reg No KDC 339L, Toyota Hilux Pickup of Reg No KDC 449L, and FAW CA 4181 Prime Mover of Reg No KDC 547U. The plaintiff has an alternative prayer for the release of the subject motor vehicles to it.
2. The plaintiff contends that it has 3 loan facilities with the defendant. It reckons it has repaid 103.14%, 100.44%, and 92.20% of the amounts it borrowed, yet the bank remains hell-bent on repossessing the motor vehicles. It was contended that what the bank claims, to wit Kes 5,315,826/02, was not in fact due and owing, that the defendant had failed to serve notices, and that the proposed repossession was unlawful as it was contrary to section 20(1) of the Consumer Protection Act.
3. The plaintiff thus prayed for an order of injunction. It expressed a willingness to pay the remaining monthly instalments, as and when they fell due, in accordance with the agreement.
4. The application is opposed. The defendant filed a deposition of Mr Samuel Wamaitha, sworn on 12th February 2026, in which it was contended that the allegation that the plaintiff had paid the amounts claimed was erroneous. The deponent stated that the basis of the calculation relied upon by the plaintiff wasn’t shown, nor did it take into account variations in interest rates. The defendant denied that section 20(1) of the Consumer Protection Act was applicable, as, in its view, the contract the parties entered into wasn’t a future performance agreement.
5. The defendant/respondent therefore urged that the application be dismissed with costs for want of merit.
6. The application was canvassed by way of written submissions. Both parties filed written submissions. The submissions of the plaintiff are dated 17th February 2026. Those of the defendant are dated 23rd February 2026. As this is a run-of-the-mill application for an injunction, I will not rehash the arguments of the parties, as the principles governing the grant of interlocutory injunctions are well understood.
7. For an order of injunction to issue, the plaintiff must demonstrate that the conditions stated in the celebrated case of Giella v Gasman Brown & Co. Ltd (1973) EA 358. It must therefore be shown that:
i There is a prima facie case with probability of success;
ii The plaintiff would suffer irreparable injury unless the order of injunction is issued; and
iii Balance of convenience favours issuance of injunctive relief.
8. Has the plaintiff met the above test? Should an injunctive relief issue? I will look at each of the 3 tests in turn.
9. On the question as to whether there is a prima facie case, the court must first determine what a prima facie case is. The Court of Appeal in the case of Mrao Ltd v First American Bank of Kenya Ltd & Others [2003] KECA 175 (KLR) defined a prima facie case as being:
“One in which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has been apparently infringed by the opposite party as to call for an explanation or rebuttal from the latter.”
10. There is no doubt that the plaintiff borrowed a loan from the defendant. The loan is currently not fully paid. The plaintiff concedes as much and seeks to leave to continue paying in instalments.
11. Although it has been alleged that the Consumer Protection Act applies, I have previously held that loan contracts of the type the plaintiff/applicant entered into are not future performance contracts (see Exon Investments Ltd v SBM Bank Kenya Ltd & Another (2025) KEHC 16744 (KLR).
12. My view, therefore, is that the suit does not appear to me as disclosing a prima facie case. In making this finding, I have cautioned myself that this is a determination on a prima facie basis only; it may be that, once the case is heard on the merits, a different conclusion may be reached.
13. Will the plaintiff suffer irreparable injury that cannot be compensated by an award of damages? I do not think so. This is a commercial loan facility. The parties were aware of what they were contracting for. The dispute concerns the outstanding loan amount. The trucks that may be sold are commercially available. I am not persuaded that the plaintiff will suffer irreparable loss. In any case, an award of damages will be an adequate remedy.
14. It must be noted that the defendant is, as put by its counsel, a tier 1 bank. There is no doubt that if it were to lose the case, it would be able to pay back whatever may be found as due and owing to the plaintiff. In the circumstances, I am unable to agree that the loss the plaintiff may suffer shall be irreparable.
15. I must note at this point that the tests for injunctive relief are considered as hurdles which an applicant must surmount sequentially without leapfrogging (See Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] KECA 606 (KLR). Thus, having failed to surmount the first 2 conditions, the plaintiff’s case is doomed.
16. But even if I were to consider the balance of convenience, it is my view that the balance of convenience favours orders that protect the sanctity of contracts and promote commerce. Parties are bound by the contracts they enter into. In light of the foregoing, the third condition has not been met.
17. The upshot of this is that the application for injunction fails. The same is dismissed with costs.
18. There are subsisting orders. Having dismissed the application for injunction, the existing orders are no longer tenable. The same are thus set aside.
19. It is so ordered.
Dated, signed and delivered at Nairobi this 8th day of June, 2026. Delivered virtually through Microsoft TEAMS.
2. The plaintiff contends that it has 3 loan facilities with the defendant. It reckons it has repaid 103.14%, 100.44%, and 92.20% of the amounts it borrowed, yet the bank remains hell-bent on repossessing the motor vehicles. It was contended that what the bank claims, to wit Kes 5,315,826/02, was not in fact due and owing, that the defendant had failed to serve notices, and that the proposed repossession was unlawful as it was contrary to section 20(1) of the Consumer Protection Act.
3. The plaintiff thus prayed for an order of injunction. It expressed a willingness to pay the remaining monthly instalments, as and when they fell due, in accordance with the agreement.
4. The application is opposed. The defendant filed a deposition of Mr Samuel Wamaitha, sworn on 12th February 2026, in which it was contended that the allegation that the plaintiff had paid the amounts claimed was erroneous. The deponent stated that the basis of the calculation relied upon by the plaintiff wasn’t shown, nor did it take into account variations in interest rates. The defendant denied that section 20(1) of the Consumer Protection Act was applicable, as, in its view, the contract the parties entered into wasn’t a future performance agreement.
5. The defendant/respondent therefore urged that the application be dismissed with costs for want of merit.
6. The application was canvassed by way of written submissions. Both parties filed written submissions. The submissions of the plaintiff are dated 17th February 2026. Those of the defendant are dated 23rd February 2026. As this is a run-of-the-mill application for an injunction, I will not rehash the arguments of the parties, as the principles governing the grant of interlocutory injunctions are well understood.
7. For an order of injunction to issue, the plaintiff must demonstrate that the conditions stated in the celebrated case of Giella v Gasman Brown & Co. Ltd (1973) EA 358. It must therefore be shown that:
i There is a prima facie case with probability of success;
ii The plaintiff would suffer irreparable injury unless the order of injunction is issued; and
iii Balance of convenience favours issuance of injunctive relief.
8. Has the plaintiff met the above test? Should an injunctive relief issue? I will look at each of the 3 tests in turn.
9. On the question as to whether there is a prima facie case, the court must first determine what a prima facie case is. The Court of Appeal in the case of Mrao Ltd v First American Bank of Kenya Ltd & Others [2003] KECA 175 (KLR) defined a prima facie case as being:
“One in which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has been apparently infringed by the opposite party as to call for an explanation or rebuttal from the latter.”
10. There is no doubt that the plaintiff borrowed a loan from the defendant. The loan is currently not fully paid. The plaintiff concedes as much and seeks to leave to continue paying in instalments.
11. Although it has been alleged that the Consumer Protection Act applies, I have previously held that loan contracts of the type the plaintiff/applicant entered into are not future performance contracts (see Exon Investments Ltd v SBM Bank Kenya Ltd & Another (2025) KEHC 16744 (KLR).
12. My view, therefore, is that the suit does not appear to me as disclosing a prima facie case. In making this finding, I have cautioned myself that this is a determination on a prima facie basis only; it may be that, once the case is heard on the merits, a different conclusion may be reached.
13. Will the plaintiff suffer irreparable injury that cannot be compensated by an award of damages? I do not think so. This is a commercial loan facility. The parties were aware of what they were contracting for. The dispute concerns the outstanding loan amount. The trucks that may be sold are commercially available. I am not persuaded that the plaintiff will suffer irreparable loss. In any case, an award of damages will be an adequate remedy.
14. It must be noted that the defendant is, as put by its counsel, a tier 1 bank. There is no doubt that if it were to lose the case, it would be able to pay back whatever may be found as due and owing to the plaintiff. In the circumstances, I am unable to agree that the loss the plaintiff may suffer shall be irreparable.
15. I must note at this point that the tests for injunctive relief are considered as hurdles which an applicant must surmount sequentially without leapfrogging (See Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] KECA 606 (KLR). Thus, having failed to surmount the first 2 conditions, the plaintiff’s case is doomed.
16. But even if I were to consider the balance of convenience, it is my view that the balance of convenience favours orders that protect the sanctity of contracts and promote commerce. Parties are bound by the contracts they enter into. In light of the foregoing, the third condition has not been met.
17. The upshot of this is that the application for injunction fails. The same is dismissed with costs.
18. There are subsisting orders. Having dismissed the application for injunction, the existing orders are no longer tenable. The same are thus set aside.
19. It is so ordered.
Dated, signed and delivered at Nairobi this 8th day of June, 2026. Delivered virtually through Microsoft TEAMS.