1. This is an appeal from the Ruling and order of the Hon. D.O. Mbeja, Principal Magistrate given in Mombasa CMCC 1127 of 2022. The Order given at interlocutory stage. I thereafter issued an order of stay pending Appeal on 2.3.2023.
The appeal raises 3 grounds that is:-
(a) The learned trial magistrate erred in entertaining the application at the interlocutory stage without proof of ownership.
(b) The learned trial magistrate by failing to consider the Appellant’s case and circumstances under which the subject motor vehicle was repossessed.
(c) The trial Judge (sic) erred in totally failing to examine all documentary evidence adduced by the Appellant in rebuttal of the 1st Respondent’s (sic)
2. The Memorandum of Appeal, through concise, would have been drafted better and remove obvious errors. I have no jurisdiction to hear appeals from any Judge anywhere in the Cosmos.
Pleadings
3. The 1st Respondent filed suit stator that he is the sole owner of Motor Vehicle Registration KCK 012C. the 1st Defendant proclaimed the vehicle without notice to be sold in a public auction. The vehicle was confiscated on 13.7.2012. The 1st Respondent stated he was part of borrower. The motor vehicle is registered in the name of Samuel Kuria Mbuthia, the Registration having been done on 4.5.2021. the said Motor Vehicle was sold on 2.11.2021 by the then registered owner to the 1st Respondent.
4. The same was then registered in the name of the 1st Respondent. I shall not delve further to the evidence as the case in the court below is still live.
5. I note that the details are Paul Adika/Everne Obage for a sum of Kshs. 4,070,866.35 at the auctioneer’s week instructed on 28.6.2022. This was 8 months after the 1st Respondent bought the suit motor vehicle.
6. The applicant made the application dated 18.7.2022 to protect their interest the sought the following prayers:
a. Pending hearing inter partes hearing and determination of this application, the honourable court be pleaded to issue a temporary order of injunction restraining the defendants; respondents either by themselves, their servants, employees or servants auctioneers and or agents from attaching the suit motor vehicle as well as remaining in the custody of the vehicle and order the immediate release of the motor vehicle or any arty thereof.
b. Pending hearing and determination of the main suit, the honourable court be pleaded to issue a temporary order of injunction restraining the defendants; respondents either by themselves , their servants , employees servants auctioneers and or agents from attaching the suit motor vehicle as well as remaining in custody of the vehicle and order the immediate release of motor vehicle or any arty thereof.
7. The Appellant filed a replying affidavit stating as follows:-
(a) There was Asset finance to one Paul Adhiambo Adika on the basis of a letter of offer dated 16.8.2016.
(b) There was to be joint registration. They stated that their client Odhiambo Adika defaulted and notices were issued as at 15.7.2022 Kshs. 3,353,570 was owing with 23.5 effective interest and penalties.
(c) The said Paul Adhiambo Adika sought an injunction in Kisumu CMCC 540.2018 that the vehicle could not be paid.
8. The 1st Respondent could not transfer without the original owner, the Appellant. The logbook indicated that as at 6.2.2017 the owner sold the 1st Respondent and Adika Adhiambo Paul. The said Paul Odhiambo Adika indeed filed an application dated 13.11.2018 through Ken Omollo and Company Advocates, Kisumu over the sale Motor Vehicle. In their application he advised that the loan was for purchase of KCK 012C Mitsubishi FH Mini Bus.
9. These is a mediation settlement dated filed on 21.8.2019. These was a lull before the current suit was filed. It is not clear how come subsequently the 1st Respondent became a registered owner.
10. The application was argued the application. The court found that the 1st Respondent is an innocent purchaser for value without notice. The court dealt with contract termination and the legal consensus.
11. However, whether he is an innocent purchaser is an issue of fact and evidence. The nature of the orders given are mandatory in nature. To be able to deal with a probability injunction, we are guided by the locus classic case of Giella = vs = Cassman Brown & Co. Ltd (1973) EA, 358, 360, sets out principles for grant of injunction. The court, stated as follows, though the wisdom of Spry VP, as then he was, as follows: -
“The conditions for the grant of an interlocutory injunction are now, I think, well settled in east Africa. First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.”
12. In the case of Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR the Court of Appeal was of the view that these tests are sequential. The Court stated: -
“In an interlocutory injunction application, the applicant has to satisfy the triple requirements to;
(a) establish his case only at a prima facie level,
(b) demonstrate irreparable injury if a temporary injunction is not granted, and
(c) ally any doubts as to (b) by showing that the balance of convenience is in his favour.
These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. See Kenya Commercial Finance Co. Ltd V. Afraha Education Society [2001] Vol. 1 EA 86. If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable.
In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between.”
13. The orders issued mandatory to issue a mandatory order, so there must be special circumstances. In this case, there are no special circumstances. The principles guiding the grant of interlocutory injunction are now well settled. Those principles were set out in East African Industries vs. Trufoods [1972] EA 420 and Giella vs. Cassman Brown & Co. Ltd [1973] EA 358. In Nguruman Limited vs. Jan Bonde Nielsen & 2 Others [2014] eKLR the Court restated the law as follows:
“In an interlocutory injunction application, the applicant has to satisfy the triple requirements to;
(a) establish his case only at a prima facie level,
(b) demonstrate irreparable injury if a temporary injunction is not granted, and
(c) ally any doubts as to (b) by showing that the balance of convenience is in his favour.
These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. See Kenya Commercial Finance Co. Ltd V. Afraha Education Society [2001] Vol. 1 EA 86. If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between. It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or both that the question of balance of convenience would arise. The inconvenience to the applicant if interlocutory injunction is refused would be balanced and compared with that of the respondent, if it is granted.”
14. In the locus classicus case of Kamau Mucuha vs. The Ripples Ltd. Civil Application No. Nai. 186 of 1992 [1990-1994] EA 388; [1993] KLR 35 the Court of Appeal expressed itself as hereunder:
…A court is far more reluctant to grant a mandatory injunction than it would be to grant a comparable prohibitory injunction. In a normal case the Court must, inter alia, feel a high degree of assurance that at the trial it will appear that the injunction was rightly granted and that is a higher standard than is required for prohibitory injunction.”
15. The Respondent has a chattel mortgage over the suit property. The Applicant bought the suit property. both have compelling interests. It cannot be said that one is Superior to the other only evidence can resolve. If the motor vehicle is sold the 1st Respondent will suffer irreparable loss. If on the other hand, the vehicle is left, the Appellant will suffer irreparable loss. It therefore means that we have to find the most convenient way to have the matter resolved. There is also the other dicey matter. The dispute between the orders for a bank has already been resolved through mediation. It means that the same has escalated into a Judgment debt for Kshs. 1,750,000.
16. There is no evidence that the parties considered the circumstances that the vehicle was ever released. The bank has a claim, and a legitimate one over the suit motor vehicle. If the Plaintiff is unable to prove that he is an innocent purchaser for value without notice, then there will be an issue. Secondly, whether a party is an innocent purchaser. If the roof title is rotten, it is doubtful whether the 1st Respondent can get the title is what he has are fruits of a poisoned tree.
17. I will therefore balance the interest of the parties by declining to issue an order of release of the suit motor vehicle. Secondly, I will set aside the orders given by the court below as they are sweeping in nature. I will make orders that will preserve the subject matter till hearing of the matter.
18. The Defendant will also seek within 21 days from the date hereof for orders to join as co-defendants, the debtor(s) and all persons who were owners before Samuel Kuria Mbuthia. The Plaintiff shall seek to join to the suit Samuel Kuria Mbuthia.
19. An injunction is hereby issued restraining the bank from selling the suit motor vehicle. The Defendant shall file undertaking to damages to the 1st Respondent should the interlocutory not be filed together with a certified copy of the original log book by 28.12.2023, the said motor vehicle shall be released forthwith to the 1st Respondent given that there mixed results. Each party to bear their own costs.
Determination
20. The upshot of the foregoing is that the Appeal is Partly allowed and partly dismissed with each party bearing their own costs. The court makes the following further orders:-
(a) The Ruling and Order of the Honorable CD.O. Mbeja given on 29.12.2022 is set aside
(b) In lieu thereof, there be issued an injunction restraining the Appellant from disposing the suit motor vehicle pending hearing and determination of Mombasa CMCC 1127/2022.
(c) Motor Vehicle registration KCK 012C to remain in the custody of the Appellant, who shall pay storage charges till the suit is heard and determined. Whichever way the suit goes, the 1st Respondent shall not bear auctioneers charges and storage charges.
(d) The Appellant is given a written and unequivocal undertaking to fully indemnify the 1st Respondent should the claim against him be found tenuous.
(e) \Should the undertaking above together with a certified coloured copy of the original log book registered in joint names of the Appellant and Paul Odiambo Adika, should be filed by 28.12.2023.
(f) Should either the undertaking and a Certified Photocopy not be filed by 28.12.2023, the suit motor vehicle Registration KCK 012C shall be released unconditionally to the 1st Respondent and the 1st Respondent shall be entitled to damages. A non coloured copy of evidence of Log Book shall not suffice.
(g) In order to first truck, the suit in the court below,
(i) The Appellant shall apply to join to the suit, within 30 days from today, all parties starting from Paul Odhiambo Adika upto the person registered before Samuel Kuria Mbuthia.
(ii) The Plaintiff shall apply to join as co-defendant Samuel Kuria Mbuthia.
(h) Each party to bear their costs.
(i) The file is closed.
DELIVERED, DATED and SIGNED at MOMBASA on this 21st day of November, 2023. Ruling delivered through Microsoft Teams Online Platform.
In the presence of:
Ms. Mulago for the Appellant
Ms Omondi holding brief for Kamau for 1st Respondent.
Court Assistant - Brian
The appeal raises 3 grounds that is:-
(a) The learned trial magistrate erred in entertaining the application at the interlocutory stage without proof of ownership.
(b) The learned trial magistrate by failing to consider the Appellant’s case and circumstances under which the subject motor vehicle was repossessed.
(c) The trial Judge (sic) erred in totally failing to examine all documentary evidence adduced by the Appellant in rebuttal of the 1st Respondent’s (sic)
2. The Memorandum of Appeal, through concise, would have been drafted better and remove obvious errors. I have no jurisdiction to hear appeals from any Judge anywhere in the Cosmos.
Pleadings
3. The 1st Respondent filed suit stator that he is the sole owner of Motor Vehicle Registration KCK 012C. the 1st Defendant proclaimed the vehicle without notice to be sold in a public auction. The vehicle was confiscated on 13.7.2012. The 1st Respondent stated he was part of borrower. The motor vehicle is registered in the name of Samuel Kuria Mbuthia, the Registration having been done on 4.5.2021. the said Motor Vehicle was sold on 2.11.2021 by the then registered owner to the 1st Respondent.
4. The same was then registered in the name of the 1st Respondent. I shall not delve further to the evidence as the case in the court below is still live.
5. I note that the details are Paul Adika/Everne Obage for a sum of Kshs. 4,070,866.35 at the auctioneer’s week instructed on 28.6.2022. This was 8 months after the 1st Respondent bought the suit motor vehicle.
6. The applicant made the application dated 18.7.2022 to protect their interest the sought the following prayers:
a. Pending hearing inter partes hearing and determination of this application, the honourable court be pleaded to issue a temporary order of injunction restraining the defendants; respondents either by themselves, their servants, employees or servants auctioneers and or agents from attaching the suit motor vehicle as well as remaining in the custody of the vehicle and order the immediate release of the motor vehicle or any arty thereof.
b. Pending hearing and determination of the main suit, the honourable court be pleaded to issue a temporary order of injunction restraining the defendants; respondents either by themselves , their servants , employees servants auctioneers and or agents from attaching the suit motor vehicle as well as remaining in custody of the vehicle and order the immediate release of motor vehicle or any arty thereof.
7. The Appellant filed a replying affidavit stating as follows:-
(a) There was Asset finance to one Paul Adhiambo Adika on the basis of a letter of offer dated 16.8.2016.
(b) There was to be joint registration. They stated that their client Odhiambo Adika defaulted and notices were issued as at 15.7.2022 Kshs. 3,353,570 was owing with 23.5 effective interest and penalties.
(c) The said Paul Adhiambo Adika sought an injunction in Kisumu CMCC 540.2018 that the vehicle could not be paid.
8. The 1st Respondent could not transfer without the original owner, the Appellant. The logbook indicated that as at 6.2.2017 the owner sold the 1st Respondent and Adika Adhiambo Paul. The said Paul Odhiambo Adika indeed filed an application dated 13.11.2018 through Ken Omollo and Company Advocates, Kisumu over the sale Motor Vehicle. In their application he advised that the loan was for purchase of KCK 012C Mitsubishi FH Mini Bus.
9. These is a mediation settlement dated filed on 21.8.2019. These was a lull before the current suit was filed. It is not clear how come subsequently the 1st Respondent became a registered owner.
10. The application was argued the application. The court found that the 1st Respondent is an innocent purchaser for value without notice. The court dealt with contract termination and the legal consensus.
11. However, whether he is an innocent purchaser is an issue of fact and evidence. The nature of the orders given are mandatory in nature. To be able to deal with a probability injunction, we are guided by the locus classic case of Giella = vs = Cassman Brown & Co. Ltd (1973) EA, 358, 360, sets out principles for grant of injunction. The court, stated as follows, though the wisdom of Spry VP, as then he was, as follows: -
“The conditions for the grant of an interlocutory injunction are now, I think, well settled in east Africa. First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.”
12. In the case of Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR the Court of Appeal was of the view that these tests are sequential. The Court stated: -
“In an interlocutory injunction application, the applicant has to satisfy the triple requirements to;
(a) establish his case only at a prima facie level,
(b) demonstrate irreparable injury if a temporary injunction is not granted, and
(c) ally any doubts as to (b) by showing that the balance of convenience is in his favour.
These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. See Kenya Commercial Finance Co. Ltd V. Afraha Education Society [2001] Vol. 1 EA 86. If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable.
In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between.”
13. The orders issued mandatory to issue a mandatory order, so there must be special circumstances. In this case, there are no special circumstances. The principles guiding the grant of interlocutory injunction are now well settled. Those principles were set out in East African Industries vs. Trufoods [1972] EA 420 and Giella vs. Cassman Brown & Co. Ltd [1973] EA 358. In Nguruman Limited vs. Jan Bonde Nielsen & 2 Others [2014] eKLR the Court restated the law as follows:
“In an interlocutory injunction application, the applicant has to satisfy the triple requirements to;
(a) establish his case only at a prima facie level,
(b) demonstrate irreparable injury if a temporary injunction is not granted, and
(c) ally any doubts as to (b) by showing that the balance of convenience is in his favour.
These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. See Kenya Commercial Finance Co. Ltd V. Afraha Education Society [2001] Vol. 1 EA 86. If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between. It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or both that the question of balance of convenience would arise. The inconvenience to the applicant if interlocutory injunction is refused would be balanced and compared with that of the respondent, if it is granted.”
14. In the locus classicus case of Kamau Mucuha vs. The Ripples Ltd. Civil Application No. Nai. 186 of 1992 [1990-1994] EA 388; [1993] KLR 35 the Court of Appeal expressed itself as hereunder:
…A court is far more reluctant to grant a mandatory injunction than it would be to grant a comparable prohibitory injunction. In a normal case the Court must, inter alia, feel a high degree of assurance that at the trial it will appear that the injunction was rightly granted and that is a higher standard than is required for prohibitory injunction.”
15. The Respondent has a chattel mortgage over the suit property. The Applicant bought the suit property. both have compelling interests. It cannot be said that one is Superior to the other only evidence can resolve. If the motor vehicle is sold the 1st Respondent will suffer irreparable loss. If on the other hand, the vehicle is left, the Appellant will suffer irreparable loss. It therefore means that we have to find the most convenient way to have the matter resolved. There is also the other dicey matter. The dispute between the orders for a bank has already been resolved through mediation. It means that the same has escalated into a Judgment debt for Kshs. 1,750,000.
16. There is no evidence that the parties considered the circumstances that the vehicle was ever released. The bank has a claim, and a legitimate one over the suit motor vehicle. If the Plaintiff is unable to prove that he is an innocent purchaser for value without notice, then there will be an issue. Secondly, whether a party is an innocent purchaser. If the roof title is rotten, it is doubtful whether the 1st Respondent can get the title is what he has are fruits of a poisoned tree.
17. I will therefore balance the interest of the parties by declining to issue an order of release of the suit motor vehicle. Secondly, I will set aside the orders given by the court below as they are sweeping in nature. I will make orders that will preserve the subject matter till hearing of the matter.
18. The Defendant will also seek within 21 days from the date hereof for orders to join as co-defendants, the debtor(s) and all persons who were owners before Samuel Kuria Mbuthia. The Plaintiff shall seek to join to the suit Samuel Kuria Mbuthia.
19. An injunction is hereby issued restraining the bank from selling the suit motor vehicle. The Defendant shall file undertaking to damages to the 1st Respondent should the interlocutory not be filed together with a certified copy of the original log book by 28.12.2023, the said motor vehicle shall be released forthwith to the 1st Respondent given that there mixed results. Each party to bear their own costs.
Determination
20. The upshot of the foregoing is that the Appeal is Partly allowed and partly dismissed with each party bearing their own costs. The court makes the following further orders:-
(a) The Ruling and Order of the Honorable CD.O. Mbeja given on 29.12.2022 is set aside
(b) In lieu thereof, there be issued an injunction restraining the Appellant from disposing the suit motor vehicle pending hearing and determination of Mombasa CMCC 1127/2022.
(c) Motor Vehicle registration KCK 012C to remain in the custody of the Appellant, who shall pay storage charges till the suit is heard and determined. Whichever way the suit goes, the 1st Respondent shall not bear auctioneers charges and storage charges.
(d) The Appellant is given a written and unequivocal undertaking to fully indemnify the 1st Respondent should the claim against him be found tenuous.
(e) \Should the undertaking above together with a certified coloured copy of the original log book registered in joint names of the Appellant and Paul Odiambo Adika, should be filed by 28.12.2023.
(f) Should either the undertaking and a Certified Photocopy not be filed by 28.12.2023, the suit motor vehicle Registration KCK 012C shall be released unconditionally to the 1st Respondent and the 1st Respondent shall be entitled to damages. A non coloured copy of evidence of Log Book shall not suffice.
(g) In order to first truck, the suit in the court below,
(i) The Appellant shall apply to join to the suit, within 30 days from today, all parties starting from Paul Odhiambo Adika upto the person registered before Samuel Kuria Mbuthia.
(ii) The Plaintiff shall apply to join as co-defendant Samuel Kuria Mbuthia.
(h) Each party to bear their costs.
(i) The file is closed.
DELIVERED, DATED and SIGNED at MOMBASA on this 21st day of November, 2023. Ruling delivered through Microsoft Teams Online Platform.
In the presence of:
Ms. Mulago for the Appellant
Ms Omondi holding brief for Kamau for 1st Respondent.
Court Assistant - Brian