REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI
MILIMANI LAW COURTS
COMMERCIAL & TAX DIVISION
HCCC NO. E429 OF 2023
MAJOR (RTD) ISSACK NOOR ADEN……………..…………..…PLAINTIFF
VERSUS
MWANANCHI CREDIT LIMITED…………….….....................DEFENDANT
RULING
1. Before this Court is the plaintiff’s Notice of Motion dated 8th September, 2023, brought under Articles 10, 40, 46, 50(1) and 159 of the Constitution of Kenya 2010, Sections 1A, 1B and 3A of the Civil Procedure Act, the Consumer Protection Act, No. 46 of 2012, Order 40 Rules (2) & (4) and Order 51 Rule (1) of the Civil Procedure Rules, 2010, seeking the following orders-
(i) Spent;
(ii) Spent;
(iii) That pending the hearing and determination of the main suit, the defendant/respondent; their (sic) servants, and agents, or persons acting for them (sic) or on their (sic) behalf, be restrained from enforcing any attachment or sale of motor vehicle Registration Number KDA 478A Land Rover-Defender.
(iv) That the costs of this application be provided for.
2. The application is predicated on the grounds on the face of it, and the affidavit of Major (Rtd) Isaack Noor Aden, the plaintiff herein, sworn on 8th September, 2023. The plaintiff also filed a further affidavit sworn on 4th October, 2023 and a supplementary further affidavit sworn on 19th October, 2023 by Paul Mucai Gitau, Advocate.
3. The plaintiff’s case is that on 19th October, 2020 the defendant advanced him an asset finance loan facility for motor vehicle registration number KDA 478A Land Rover - Defender in the sum of Kshs.18,886,563.00, with an additional interest charge of Kshs.5,665,968.90 with the total amount being the sum of Kshs.24, 552,531.90. It was agreed that upon paying a maximum of Kshs 24,552,531.90, he would be fully discharged from any liability. On 7th September, 2023, the defendant issued him with a 14 days’ demand letter backdated to 28th November, 2022 for Kshs. 16,635,292.17. The plaintiff averred that ten months after issuance of the said demand, there has been no proclamation of the motor vehicle in issue.
4. He stated that the account statement for the same asset issued by the defendant as at 31st August, 2023 has a running balance of Kshs. 9,071,000/= which is disputed. The plaintiff contended that the defendant has unconscionably loaded penalties and induced him into three restructuring arrangements, which have resulted in gross variance of the contract, contrary to his expectations and obligations. He deposed that he has been servicing the facility and has paid over Kshs.43,645,000.00, which is also understated by the defendant as Kshs.40,255,356.21 in the account statement of 31st August, 2023. He stated that if the orders prayed for are granted, no prejudice will be suffered by any party, and that unless the orders sought are granted, he will suffer great prejudice.
5. The application was opposed by the defendant through a replying affidavit sworn by its Head of Legal, Sylvia Njoroge, on 26th September, 2023. The defendant also filed a further affidavit sworn by its Executive Director, Dennis Mombo, on 5th October 2023.
6. The defendant’s case is that aside from the initial facility advanced to the plaintiff on 19th October, 2020, there were several further restructuring agreements. It averred that the 2nd facility of Kshs.18,699,063.00 was advanced on 21st September, 2020 at an interest rate of 5% compounded for 6 months, payable in 6 monthly instalments of Kshs.4,051,464.00 with the total sum being Kshs. 24,552,531.90, from 23rd October, 2020 to 23rd March, 2021. It further averred that pursuant to the terms of the loan agreement and the letter of offer, the plaintiff executed a chattel instrument in respect of the suit motor vehicle in accordance with the Chattel Transfer Act.
7. The defendant deposed that on or about the 8th March, 2021, the plaintiff and the defendant entered into an agreement for the full liquidation of the sum of Kshs.11,913,115.14 and for an additional sum of Kshs.3,000,000/=, being the 3rd facility, when the period for the 2nd facility was about to lapse. That the interest for the 3rd facility was a flat rate of 5%, payable in 9 monthly instalments of Kshs.2,563,018.00 totalling Kshs.15,908,390.00 inclusive of fees, from 8th April, 2021, to 8th September, 2021.
8. The defendant further deposed that as at August 2021, the applicant had repaid a total of Kshs.10,029,000/= in respect to the 3rd facility and the account had a running balance of Kshs.14,924,539.64. That subsequently, the plaintiff requested a waiver and the liquidation of the amounts in the 3rd facility, and the defendant granted the plaintiff a waiver of Kshs. 900,000/=, and the remaining amount of Kshs.14,024,539/= was liquidated for restructure.
9. It was stated by the defendant that the 4th facility of Kshs.14,960,475.00, being the liquidation amount inclusive of processing fees, was advanced on 4th August, 2021 at an interest rate of 3% payable in 10 monthly instalments of Kshs.1,944,875 from 4th September, 2021, to 4th June, 2022.
10. That the 5th facility of Kshs.16,228,820.00 was advanced on 13th August, 2022 at an interest rate of 2.5%, payable in 12 monthly instalments of Kshs. 1,758,122.00 from 13th September, 2022 to 24th August, 2023. The defendant stated that as at 7th September, 2023, the plaintiff had repaid a total sum of Kshs.9,071,000/= in respect of the 5th facility and the account had a running balance of Kshs.32,743,574.52.
11. The defendant stated that all facilities were secured by Land Rover - Defender 110E, Registration Number KDA 478A and had provisions for default penalties, charged at the rate of 5% for every seven (7) days until payment in full.
12. It was averred that in breach of the terms of the loan agreement, the plaintiff persistently defaulted, prompting the defendant to issue a demand letter dated 28th November, 2022 requesting the plaintiff to regularize his account within 14 days, but he did not make good the demand. That as a result, the defendant acquired a valid and legal interest over the suit motor vehicle, which interest can only be extinguished upon the plaintiff fulfilling his obligations in accordance with the terms of the agreement. The defendant contended that its right to repossess the suit motor vehicle accrued in accordance with the terms in the agreement, without reference to the plaintiff upon his default.
13. It was contended that the plaintiff has failed to furnish this Court with any evidence to demonstrate the allegations of inducement to restructure his facilities; that the circumstances and issues existing in the plaintiff’s application do not attain the established threshold for the grant of the orders sought; and that the instant application is an attempt by the plaintiff to escape his lawful obligations in respect to the agreement entered into with the defendant in contravention of the law.
14. The defendant stated that the plaintiff applicant entered willingly into the agreement with the defendant and is bound by the terms therein, but he has failed to repay the amounts due and outstanding in respect to the agreement entered into with the defendant and in accordance with the terms therein contrary to the averments in the affidavit in support of his application.
15. It was further argued that the plaintiff is guilty of material non-disclosure and has deliberately and mischievously misled this Court. That the instant application is incompetent, misconceived, misinformed and is an abuse of the process of the Court and is for dismissal with costs. The defendant contended that the plaintiff has not established a prima facie case with a probability of success and is therefore not entitled to the orders sought. The defendant argued that the plaintiff has failed to demonstrate the irreparable damage he is likely to suffer if the orders sought are denied, and that the plaintiff has not approached this Court with clean hands and is therefore undeserving of any equitable reliefs.
16. It was the defendant’s contention that the orders sought by the plaintiff are highly prejudicial and detrimental to the defendant and its shareholders and are intended to defeat their rights to property safeguarded by the Constitution of Kenya, 2010. The defendant averred that the balance of convenience lies in its favour.
ANALYSIS AND DETERMINATION
17. I have considered the application herein, the grounds on which it is premised, the parties’ respective affidavits and the submissions filed. The issue for determination is whether an order for interlocutory injunction should be granted.
18. Order 40 Rule 2 of the Civil Procedure Rules, 2010 provides as follows-
“[Order 40, rule 2.] Injunction to restrain breach of contract or other injury.
2. (1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any injury of a like kind arising out of the same contract or relating to the same property or right.
(2) The court may by order grant such injunction on such terms as to an inquiry as to damages, the duration of the injunction, keeping an account, giving security or otherwise, as the court deems fit.”
19. The principles for the grant of an interlocutory injunction were established in the case of Giella v Cassman Brown (1973) E.A. 358 where Spry, V.P. stated as follows at page 360E -
“The conditions for the grant of an interlocutory injunction are now 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 the case on the balance of convenience.”
20. On the first condition that must be demonstrated, that is a prima facie case, the Court of Appeal in Mrao Ltd v. First American Bank of Kenya Ltd & 2 others [2003] eKLR, defined a prima facie case as follows-
“So what is a prima facie case" I would say that in civil cases it is a case in 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. A prima facie case is more than an arguable case. It is not sufficient to raise issues but the evidence must show an infringement of a right, and the probability of success of the Applicant’s case upon trial. That is clearly a standard, which is higher than an arguable case.”
21. Dr. Gitau, the plaintiff’s learned Counsel submitted that the plaintiff has established a prima facie case in that the defendant breached Clause 5.5.2 of the loan agreement by including the default penalty of 5% resulting in a demand to pay 300% for the loan which is unconscionable. Counsel also argued that it has a legitimate expectation that every loan that was restructured by the defendant had factored in the contract term that the default penalty of 5% of any 7 days or part thereof, was to be accounted for, independent of the principal loan interest, or was net of the default penalty of 5%.
22. The plaintiff’s Counsel contended that the defendant has never provided him with any account or schedule of the default penalty of 5% of any 7 days or such period for the life of the loan restructured. He opined that the foregoing offended Sections 3 and 13 of the Consumer Protection Act and renders the contract unconscionable. He relied on Sections 14 and 15 of the Consumer Protection Act, to the effect that it is an unfair practice for a person to use his control of consumer goods into renegotiating the terms of a consumer transaction. Counsel further relied on Section 12 of the Consumer Protection Act to assert that he has been granted leave to rescind the contract.
23. Mr. J.B. Macharia, learned Counsel for the defendant argued that the plaintiff has not demonstrated a prima facie case, pointing to the fact that the plaintiff does not dispute having entered into the loan agreement dated 22nd September, 2020 and that he liquidated and refinanced the loan facility four times.
24. It is clear to me that the plaintiff disputes the default interest of 5% and the penalties. Having reviewed the record, it is however not disputed that the parties entered into an asset finance loan agreement dated 22nd September, 2020 for motor vehicle Registration Number KDA 478A Land Rover- Defender in the sum of Kshs.18,886,563.00, with an additional interest charge of Kshs.5,665,968.90 giving rise to the total sum of Kshs. 24,552,531.90. It is also not disputed that there were four restructuring arrangements which varied the terms of the loan agreement. Furthermore, under the terms of the loan agreement, the defendant would be at liberty to repossess the suit motor vehicle in case of default in repayment of the facilities.
25. Although the plaintiff claimed that he was pressured to enter into the restructuring arrangements, he did not avail any evidence of this. To the contrary, the defendant showed through evidence in the form of text messages, letters dated 11th and 22nd March 2022 and email correspondence, that the liquidation of the loan facilities and refinancing were done with the plaintiff’s full knowledge and his awareness of their effect. The defendant also produced account statements showing that the plaintiff had defaulted in payment of the instalments due under the loan agreement and restructuring arrangements.
26. In the Court of Appeal decision in National Bank of Kenya Ltd v Pipe Plastic Samkolit (K) Ltd & anor [2002] EA 503, cited by both parties in their submissions, it was held as follows-
“A Court of law cannot re-write a contract between the parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded and proved.”
27. See also the Court of Appeal decision in Hussamudin Gulamhussein Pothiwalla administrator, Trustee and Executor of the Estate of Gulamhussein Ebraihim Pothiwalla v Kidogo Basi Housing Cooperative Society Limited and 31 others Civil Appeal No. 330 of 2003
28. Having analyzed the facts of this case and the applicable law, it is my finding that the plaintiff has not demonstrated a prima facie case with a probability of success to make out a case for being granted an interlocutory injunction. The defendant is therefore within its rights to repossess and sell the suit motor vehicle through public auction or private treaty without issuing notices to the plaintiff prior to, or after repossession.
29. Having found that the first condition for the grant of an interlocutory injunction has not been satisfied, there is no need to go into analyzing the two other conditions as all the conditions are to be applied as separate, distinct and logical hurdles which the plaintiff was expected to surmount sequentially. See the Court of Appeal decision in Nguruman Limited v Jane Bonde Nielsen and 2 Others NRB CA Civil Appeal No. 77 of 2012 [2014] eKLR and the High Court decision in Autofine Limited & 2 others v Equity Bank Limited Comm. Case No. E092 of 2020 [2020] eKLR
30. In the upshot, the application dated 8th September, 2023 is dismissed for want of merits, with costs to the defendant.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI on this 12th day of April, 2024. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:
Dr. Gitau for the plaintiff/applicant
Mr. J. B. Macharia for the defendant/respondent
Ms B. Wokabi – Court Assistant.
IN THE HIGH COURT AT NAIROBI
MILIMANI LAW COURTS
COMMERCIAL & TAX DIVISION
HCCC NO. E429 OF 2023
MAJOR (RTD) ISSACK NOOR ADEN……………..…………..…PLAINTIFF
VERSUS
MWANANCHI CREDIT LIMITED…………….….....................DEFENDANT
RULING
1. Before this Court is the plaintiff’s Notice of Motion dated 8th September, 2023, brought under Articles 10, 40, 46, 50(1) and 159 of the Constitution of Kenya 2010, Sections 1A, 1B and 3A of the Civil Procedure Act, the Consumer Protection Act, No. 46 of 2012, Order 40 Rules (2) & (4) and Order 51 Rule (1) of the Civil Procedure Rules, 2010, seeking the following orders-
(i) Spent;
(ii) Spent;
(iii) That pending the hearing and determination of the main suit, the defendant/respondent; their (sic) servants, and agents, or persons acting for them (sic) or on their (sic) behalf, be restrained from enforcing any attachment or sale of motor vehicle Registration Number KDA 478A Land Rover-Defender.
(iv) That the costs of this application be provided for.
2. The application is predicated on the grounds on the face of it, and the affidavit of Major (Rtd) Isaack Noor Aden, the plaintiff herein, sworn on 8th September, 2023. The plaintiff also filed a further affidavit sworn on 4th October, 2023 and a supplementary further affidavit sworn on 19th October, 2023 by Paul Mucai Gitau, Advocate.
3. The plaintiff’s case is that on 19th October, 2020 the defendant advanced him an asset finance loan facility for motor vehicle registration number KDA 478A Land Rover - Defender in the sum of Kshs.18,886,563.00, with an additional interest charge of Kshs.5,665,968.90 with the total amount being the sum of Kshs.24, 552,531.90. It was agreed that upon paying a maximum of Kshs 24,552,531.90, he would be fully discharged from any liability. On 7th September, 2023, the defendant issued him with a 14 days’ demand letter backdated to 28th November, 2022 for Kshs. 16,635,292.17. The plaintiff averred that ten months after issuance of the said demand, there has been no proclamation of the motor vehicle in issue.
4. He stated that the account statement for the same asset issued by the defendant as at 31st August, 2023 has a running balance of Kshs. 9,071,000/= which is disputed. The plaintiff contended that the defendant has unconscionably loaded penalties and induced him into three restructuring arrangements, which have resulted in gross variance of the contract, contrary to his expectations and obligations. He deposed that he has been servicing the facility and has paid over Kshs.43,645,000.00, which is also understated by the defendant as Kshs.40,255,356.21 in the account statement of 31st August, 2023. He stated that if the orders prayed for are granted, no prejudice will be suffered by any party, and that unless the orders sought are granted, he will suffer great prejudice.
5. The application was opposed by the defendant through a replying affidavit sworn by its Head of Legal, Sylvia Njoroge, on 26th September, 2023. The defendant also filed a further affidavit sworn by its Executive Director, Dennis Mombo, on 5th October 2023.
6. The defendant’s case is that aside from the initial facility advanced to the plaintiff on 19th October, 2020, there were several further restructuring agreements. It averred that the 2nd facility of Kshs.18,699,063.00 was advanced on 21st September, 2020 at an interest rate of 5% compounded for 6 months, payable in 6 monthly instalments of Kshs.4,051,464.00 with the total sum being Kshs. 24,552,531.90, from 23rd October, 2020 to 23rd March, 2021. It further averred that pursuant to the terms of the loan agreement and the letter of offer, the plaintiff executed a chattel instrument in respect of the suit motor vehicle in accordance with the Chattel Transfer Act.
7. The defendant deposed that on or about the 8th March, 2021, the plaintiff and the defendant entered into an agreement for the full liquidation of the sum of Kshs.11,913,115.14 and for an additional sum of Kshs.3,000,000/=, being the 3rd facility, when the period for the 2nd facility was about to lapse. That the interest for the 3rd facility was a flat rate of 5%, payable in 9 monthly instalments of Kshs.2,563,018.00 totalling Kshs.15,908,390.00 inclusive of fees, from 8th April, 2021, to 8th September, 2021.
8. The defendant further deposed that as at August 2021, the applicant had repaid a total of Kshs.10,029,000/= in respect to the 3rd facility and the account had a running balance of Kshs.14,924,539.64. That subsequently, the plaintiff requested a waiver and the liquidation of the amounts in the 3rd facility, and the defendant granted the plaintiff a waiver of Kshs. 900,000/=, and the remaining amount of Kshs.14,024,539/= was liquidated for restructure.
9. It was stated by the defendant that the 4th facility of Kshs.14,960,475.00, being the liquidation amount inclusive of processing fees, was advanced on 4th August, 2021 at an interest rate of 3% payable in 10 monthly instalments of Kshs.1,944,875 from 4th September, 2021, to 4th June, 2022.
10. That the 5th facility of Kshs.16,228,820.00 was advanced on 13th August, 2022 at an interest rate of 2.5%, payable in 12 monthly instalments of Kshs. 1,758,122.00 from 13th September, 2022 to 24th August, 2023. The defendant stated that as at 7th September, 2023, the plaintiff had repaid a total sum of Kshs.9,071,000/= in respect of the 5th facility and the account had a running balance of Kshs.32,743,574.52.
11. The defendant stated that all facilities were secured by Land Rover - Defender 110E, Registration Number KDA 478A and had provisions for default penalties, charged at the rate of 5% for every seven (7) days until payment in full.
12. It was averred that in breach of the terms of the loan agreement, the plaintiff persistently defaulted, prompting the defendant to issue a demand letter dated 28th November, 2022 requesting the plaintiff to regularize his account within 14 days, but he did not make good the demand. That as a result, the defendant acquired a valid and legal interest over the suit motor vehicle, which interest can only be extinguished upon the plaintiff fulfilling his obligations in accordance with the terms of the agreement. The defendant contended that its right to repossess the suit motor vehicle accrued in accordance with the terms in the agreement, without reference to the plaintiff upon his default.
13. It was contended that the plaintiff has failed to furnish this Court with any evidence to demonstrate the allegations of inducement to restructure his facilities; that the circumstances and issues existing in the plaintiff’s application do not attain the established threshold for the grant of the orders sought; and that the instant application is an attempt by the plaintiff to escape his lawful obligations in respect to the agreement entered into with the defendant in contravention of the law.
14. The defendant stated that the plaintiff applicant entered willingly into the agreement with the defendant and is bound by the terms therein, but he has failed to repay the amounts due and outstanding in respect to the agreement entered into with the defendant and in accordance with the terms therein contrary to the averments in the affidavit in support of his application.
15. It was further argued that the plaintiff is guilty of material non-disclosure and has deliberately and mischievously misled this Court. That the instant application is incompetent, misconceived, misinformed and is an abuse of the process of the Court and is for dismissal with costs. The defendant contended that the plaintiff has not established a prima facie case with a probability of success and is therefore not entitled to the orders sought. The defendant argued that the plaintiff has failed to demonstrate the irreparable damage he is likely to suffer if the orders sought are denied, and that the plaintiff has not approached this Court with clean hands and is therefore undeserving of any equitable reliefs.
16. It was the defendant’s contention that the orders sought by the plaintiff are highly prejudicial and detrimental to the defendant and its shareholders and are intended to defeat their rights to property safeguarded by the Constitution of Kenya, 2010. The defendant averred that the balance of convenience lies in its favour.
ANALYSIS AND DETERMINATION
17. I have considered the application herein, the grounds on which it is premised, the parties’ respective affidavits and the submissions filed. The issue for determination is whether an order for interlocutory injunction should be granted.
18. Order 40 Rule 2 of the Civil Procedure Rules, 2010 provides as follows-
“[Order 40, rule 2.] Injunction to restrain breach of contract or other injury.
2. (1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any injury of a like kind arising out of the same contract or relating to the same property or right.
(2) The court may by order grant such injunction on such terms as to an inquiry as to damages, the duration of the injunction, keeping an account, giving security or otherwise, as the court deems fit.”
19. The principles for the grant of an interlocutory injunction were established in the case of Giella v Cassman Brown (1973) E.A. 358 where Spry, V.P. stated as follows at page 360E -
“The conditions for the grant of an interlocutory injunction are now 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 the case on the balance of convenience.”
20. On the first condition that must be demonstrated, that is a prima facie case, the Court of Appeal in Mrao Ltd v. First American Bank of Kenya Ltd & 2 others [2003] eKLR, defined a prima facie case as follows-
“So what is a prima facie case" I would say that in civil cases it is a case in 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. A prima facie case is more than an arguable case. It is not sufficient to raise issues but the evidence must show an infringement of a right, and the probability of success of the Applicant’s case upon trial. That is clearly a standard, which is higher than an arguable case.”
21. Dr. Gitau, the plaintiff’s learned Counsel submitted that the plaintiff has established a prima facie case in that the defendant breached Clause 5.5.2 of the loan agreement by including the default penalty of 5% resulting in a demand to pay 300% for the loan which is unconscionable. Counsel also argued that it has a legitimate expectation that every loan that was restructured by the defendant had factored in the contract term that the default penalty of 5% of any 7 days or part thereof, was to be accounted for, independent of the principal loan interest, or was net of the default penalty of 5%.
22. The plaintiff’s Counsel contended that the defendant has never provided him with any account or schedule of the default penalty of 5% of any 7 days or such period for the life of the loan restructured. He opined that the foregoing offended Sections 3 and 13 of the Consumer Protection Act and renders the contract unconscionable. He relied on Sections 14 and 15 of the Consumer Protection Act, to the effect that it is an unfair practice for a person to use his control of consumer goods into renegotiating the terms of a consumer transaction. Counsel further relied on Section 12 of the Consumer Protection Act to assert that he has been granted leave to rescind the contract.
23. Mr. J.B. Macharia, learned Counsel for the defendant argued that the plaintiff has not demonstrated a prima facie case, pointing to the fact that the plaintiff does not dispute having entered into the loan agreement dated 22nd September, 2020 and that he liquidated and refinanced the loan facility four times.
24. It is clear to me that the plaintiff disputes the default interest of 5% and the penalties. Having reviewed the record, it is however not disputed that the parties entered into an asset finance loan agreement dated 22nd September, 2020 for motor vehicle Registration Number KDA 478A Land Rover- Defender in the sum of Kshs.18,886,563.00, with an additional interest charge of Kshs.5,665,968.90 giving rise to the total sum of Kshs. 24,552,531.90. It is also not disputed that there were four restructuring arrangements which varied the terms of the loan agreement. Furthermore, under the terms of the loan agreement, the defendant would be at liberty to repossess the suit motor vehicle in case of default in repayment of the facilities.
25. Although the plaintiff claimed that he was pressured to enter into the restructuring arrangements, he did not avail any evidence of this. To the contrary, the defendant showed through evidence in the form of text messages, letters dated 11th and 22nd March 2022 and email correspondence, that the liquidation of the loan facilities and refinancing were done with the plaintiff’s full knowledge and his awareness of their effect. The defendant also produced account statements showing that the plaintiff had defaulted in payment of the instalments due under the loan agreement and restructuring arrangements.
26. In the Court of Appeal decision in National Bank of Kenya Ltd v Pipe Plastic Samkolit (K) Ltd & anor [2002] EA 503, cited by both parties in their submissions, it was held as follows-
“A Court of law cannot re-write a contract between the parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded and proved.”
27. See also the Court of Appeal decision in Hussamudin Gulamhussein Pothiwalla administrator, Trustee and Executor of the Estate of Gulamhussein Ebraihim Pothiwalla v Kidogo Basi Housing Cooperative Society Limited and 31 others Civil Appeal No. 330 of 2003
28. Having analyzed the facts of this case and the applicable law, it is my finding that the plaintiff has not demonstrated a prima facie case with a probability of success to make out a case for being granted an interlocutory injunction. The defendant is therefore within its rights to repossess and sell the suit motor vehicle through public auction or private treaty without issuing notices to the plaintiff prior to, or after repossession.
29. Having found that the first condition for the grant of an interlocutory injunction has not been satisfied, there is no need to go into analyzing the two other conditions as all the conditions are to be applied as separate, distinct and logical hurdles which the plaintiff was expected to surmount sequentially. See the Court of Appeal decision in Nguruman Limited v Jane Bonde Nielsen and 2 Others NRB CA Civil Appeal No. 77 of 2012 [2014] eKLR and the High Court decision in Autofine Limited & 2 others v Equity Bank Limited Comm. Case No. E092 of 2020 [2020] eKLR
30. In the upshot, the application dated 8th September, 2023 is dismissed for want of merits, with costs to the defendant.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI on this 12th day of April, 2024. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:
Dr. Gitau for the plaintiff/applicant
Mr. J. B. Macharia for the defendant/respondent
Ms B. Wokabi – Court Assistant.