1. The 1st Respondent and the Appellant/Applicant entered into a sale agreement on 26th October 2024, vide which the appellant purchased a motor vehicle identified as Toyota Prado, engine no. 1GD-8220702 Chassis No 6DJ151 – 0005391, whose year of manufacture is 2017. The agreed consideration was Kes. 9,500,000/-. The purchaser paid Kes. 3,200,000/-, leaving a balance of Kes. 6,300,000.00, which was to be settled in 4 instalments made up as follows:-
(1) Kes.424,000/ - (inclusive of insurance) – 26th November 2024;
(2) Kes.2,124,000/ - (inclusive of insurance) – 31st December 2024
(3) Kes.2,000,000/ - 28th February 2025; and
(4) Kes,2,000,000/ - 30th April 2025.
2. It was a term of the said agreement that the seller would have the right to repossess the motor vehicle if the buyer defaulted on any three consecutive instalments, and, in that case, would have the right to sell the motor vehicle to anybody else upon giving notice.
3. Apprehensive that the 1st Respondent was about to repossess the motor vehicle, the appellant/applicant filed a notice of motion dated 28th May 2025, seeking a permanent injunction to restrain the respondents from repossessing the subject motor vehicle or interfering with his quiet possession of it. He averred that, as at that date, he had paid Kes. 4,962,000/.
4. The application was opposed by the Respondents, who on their part asserted that the appellant had only paid Kes. 3,332,000/, which in their view was only in respect of the deposit. Thus, he was in default of his obligation to pay the remaining instalments. As such, the respondents were within their rights to repossess the motor vehicle.
5. The Court below, having considered the matter, found the application to be without merit. The learned magistrate held that the application sought an interlocutory mandatory injunction, which could be granted only in exceptional circumstances. In his view, the Court was being invited to rewrite the parties' contract. The Court accordingly dismissed the application. This led to an appeal to this Court, filed on 28th November 2025. The merits of the appeal will be considered in due course. It is for me to consider whether prayer 3 of the Notice of Motion dated 28th November 2025, which is set out below, should be granted.
“That pending the hearing and determination of this appeal interpartes the honourable Court be pleased to grant an order of injunction restraining the respondents, their agents, servants and or persons acting under their authority from proceeding with any repossession of motor vehicle registration number KDR 500X, make Toyota Station Wagon, or interfering with the quiet possession thereof, or in any way dealing with the suit motor vehicle registration number KDR 500X, Toyota Station Wagon.”
The application also seeks that the costs of the application be borne by the Respondent.
6. It would seem to me that the application is predicated on the fact that the appellant/applicant still has possession of the motor vehicle in question. It seeks to prevent the repossession of the same. The injunction sought is prohibitory in nature and not mandatory, as the Court below stated in the impugned ruling. That notwithstanding, are there grounds for this Court to issue an injunction pending appeal?
7. In its response, vide a replying affidavit of Shafigul Islam, sworn on 2nd December 2026, the respondent avers that no case for the grant of injunctive relief had been made, as the appellant/applicant had paid only Kes. 3,332,000.00, leaving a balance of Kes. 6,168,000.00. In its reckoning, due to the failure to pay any instalments, the Respondents' right to repossess the motor vehicle had crystallized. Although the right had accrued, they had not attempted to repossess the motor vehicle. It was contended that, even on the appellant/applicant's own assertions, the Respondents were still owed Kes. 4,538,000.
8. Both parties filed written submissions dated 13th December 2025 and 21st January 2026, respectively, which I have considered.
9. An appellate Court may, in lieu of granting a stay of execution pending appeal, grant an injunction pending appeal. Order 42 Rule 6 of the Civil Procedure Rules states that:
“Notwithstanding anything contained in sub-rule (1) of this rule, the High Court shall have power in exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just, provided the procedure for instituting an appeal from a subordinate Court or tribunal has been complied with.”
10. It is trite law that when a court exercises discretion, it should do so judiciously, not on whim or caprice. I note that the Court below considered whether to grant an injunction. In a reasoned decision, it opted not to. I am being called upon, in essence, to disturb that finding. In Mbogo & another v Shah [1968] EA 93, it was held that:
“…that this Court will not interfere with the exercise of judicial discretion by an inferior Court unless it is satisfied that its decision is clearly wrong, because it has acted on matters on which it should not have acted, or because it failed to take into consideration matters it should have taken into consideration and in doing so arrived at a wrong conclusion.”
11. Thus, I should give due weight to the decision of the learned magistrate and only grant an injunction pending appeal if the conditions precedent are met. What then are these conditions? Alnashir Visram, J, as he then was, held in the case of PATRICIA NJERI & 3 OTHERS V NATIONAL MUSEUM OF KENYA [2004] KEHC 1614 (KLR) that:
“In the Venture Capital case, the Court of Appeal said that an order for injunction pending appeal is a discretionary matter. The discretion must, however, be “exercised judicially and not in whimsical or arbitrary fashion.” This discretion is guided by certain principles, some of which are as follows:
(a) The discretion will be exercised against an Applicant whose appeal is frivolous (See Madhupaper International Limited vs Kerr (1985) KLR 840 (cited in Venture Capital). The Applicant must state that a reasonable argument can be put forward in support of his appeal (J. K. Industries vs KCB (1982 – 88) KLR 1088 (also cited in Venture Capital)
(b) The discretion should be refused where it would inflict greater hardship than it would avoid (See Madhupaper supra).
(c) The Applicant must show that to refuse the injunction would render his appeal nugatory (See Butt vs Rent Restriction Tribunal (1982) KLR 417 (cited also in Venture Capital).
(d) The Court should also be guided by the principles in Giella vs Cassman Brown & Company Ltd (1973) EA 358 as set out in the case of Shitukha Mwamodo & Others (1986) KLR 445 (also cited in Venture Capital).
12. Relying on the foregoing decision, an applicant must show that:
i. The appeal is not frivolous
ii. That allowing the application would not inflict a greater hardship than would be avoided by not doing so;
iii. Refusal of the application would render the appeal nugatory; and
iv. Conditions in the case of Giella v Cassman Brown & Company Ltd (1973) EA 358 had been met.
13. Is that the case here? I am afraid not. The appellant is a defaulter. Even if one were to accept his assertion that he had paid Kes. 4,538,000/, out of Kes. 9,500,000/, he was required to pay under the agreement, he remains in default. The appellant/applicant had the obligation to show the Court that his appeal is not frivolous. I am not persuaded that he discharged this obligation.
14. In my view, allowing the application would amount to the Court rewriting the agreement that the parties freely entered into. As correctly pointed out by the learned magistrate, the Court should not do anything of that sort and must refrain from such conduct. Similarly, I am not persuaded that refusing to grant the orders sought would render the appeal nugatory. Whatever the merits of the appeal, if the appellant is ultimately successful, compensation would be available.
15. Has the test in Giella v Cassman Brown been met? The sum of what I have considered above is that the 3 conditions have not been met. In the circumstances, the application dated 28th November 2025 is dismissed with costs to be paid by the appellant/applicant.
16. It is so ordered.
Dated and signed in Nairobi, this 23rd day of April 2026. Delivered virtually through Microsoft TEAMS.
(1) Kes.424,000/ - (inclusive of insurance) – 26th November 2024;
(2) Kes.2,124,000/ - (inclusive of insurance) – 31st December 2024
(3) Kes.2,000,000/ - 28th February 2025; and
(4) Kes,2,000,000/ - 30th April 2025.
2. It was a term of the said agreement that the seller would have the right to repossess the motor vehicle if the buyer defaulted on any three consecutive instalments, and, in that case, would have the right to sell the motor vehicle to anybody else upon giving notice.
3. Apprehensive that the 1st Respondent was about to repossess the motor vehicle, the appellant/applicant filed a notice of motion dated 28th May 2025, seeking a permanent injunction to restrain the respondents from repossessing the subject motor vehicle or interfering with his quiet possession of it. He averred that, as at that date, he had paid Kes. 4,962,000/.
4. The application was opposed by the Respondents, who on their part asserted that the appellant had only paid Kes. 3,332,000/, which in their view was only in respect of the deposit. Thus, he was in default of his obligation to pay the remaining instalments. As such, the respondents were within their rights to repossess the motor vehicle.
5. The Court below, having considered the matter, found the application to be without merit. The learned magistrate held that the application sought an interlocutory mandatory injunction, which could be granted only in exceptional circumstances. In his view, the Court was being invited to rewrite the parties' contract. The Court accordingly dismissed the application. This led to an appeal to this Court, filed on 28th November 2025. The merits of the appeal will be considered in due course. It is for me to consider whether prayer 3 of the Notice of Motion dated 28th November 2025, which is set out below, should be granted.
“That pending the hearing and determination of this appeal interpartes the honourable Court be pleased to grant an order of injunction restraining the respondents, their agents, servants and or persons acting under their authority from proceeding with any repossession of motor vehicle registration number KDR 500X, make Toyota Station Wagon, or interfering with the quiet possession thereof, or in any way dealing with the suit motor vehicle registration number KDR 500X, Toyota Station Wagon.”
The application also seeks that the costs of the application be borne by the Respondent.
6. It would seem to me that the application is predicated on the fact that the appellant/applicant still has possession of the motor vehicle in question. It seeks to prevent the repossession of the same. The injunction sought is prohibitory in nature and not mandatory, as the Court below stated in the impugned ruling. That notwithstanding, are there grounds for this Court to issue an injunction pending appeal?
7. In its response, vide a replying affidavit of Shafigul Islam, sworn on 2nd December 2026, the respondent avers that no case for the grant of injunctive relief had been made, as the appellant/applicant had paid only Kes. 3,332,000.00, leaving a balance of Kes. 6,168,000.00. In its reckoning, due to the failure to pay any instalments, the Respondents' right to repossess the motor vehicle had crystallized. Although the right had accrued, they had not attempted to repossess the motor vehicle. It was contended that, even on the appellant/applicant's own assertions, the Respondents were still owed Kes. 4,538,000.
8. Both parties filed written submissions dated 13th December 2025 and 21st January 2026, respectively, which I have considered.
9. An appellate Court may, in lieu of granting a stay of execution pending appeal, grant an injunction pending appeal. Order 42 Rule 6 of the Civil Procedure Rules states that:
“Notwithstanding anything contained in sub-rule (1) of this rule, the High Court shall have power in exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just, provided the procedure for instituting an appeal from a subordinate Court or tribunal has been complied with.”
10. It is trite law that when a court exercises discretion, it should do so judiciously, not on whim or caprice. I note that the Court below considered whether to grant an injunction. In a reasoned decision, it opted not to. I am being called upon, in essence, to disturb that finding. In Mbogo & another v Shah [1968] EA 93, it was held that:
“…that this Court will not interfere with the exercise of judicial discretion by an inferior Court unless it is satisfied that its decision is clearly wrong, because it has acted on matters on which it should not have acted, or because it failed to take into consideration matters it should have taken into consideration and in doing so arrived at a wrong conclusion.”
11. Thus, I should give due weight to the decision of the learned magistrate and only grant an injunction pending appeal if the conditions precedent are met. What then are these conditions? Alnashir Visram, J, as he then was, held in the case of PATRICIA NJERI & 3 OTHERS V NATIONAL MUSEUM OF KENYA [2004] KEHC 1614 (KLR) that:
“In the Venture Capital case, the Court of Appeal said that an order for injunction pending appeal is a discretionary matter. The discretion must, however, be “exercised judicially and not in whimsical or arbitrary fashion.” This discretion is guided by certain principles, some of which are as follows:
(a) The discretion will be exercised against an Applicant whose appeal is frivolous (See Madhupaper International Limited vs Kerr (1985) KLR 840 (cited in Venture Capital). The Applicant must state that a reasonable argument can be put forward in support of his appeal (J. K. Industries vs KCB (1982 – 88) KLR 1088 (also cited in Venture Capital)
(b) The discretion should be refused where it would inflict greater hardship than it would avoid (See Madhupaper supra).
(c) The Applicant must show that to refuse the injunction would render his appeal nugatory (See Butt vs Rent Restriction Tribunal (1982) KLR 417 (cited also in Venture Capital).
(d) The Court should also be guided by the principles in Giella vs Cassman Brown & Company Ltd (1973) EA 358 as set out in the case of Shitukha Mwamodo & Others (1986) KLR 445 (also cited in Venture Capital).
12. Relying on the foregoing decision, an applicant must show that:
i. The appeal is not frivolous
ii. That allowing the application would not inflict a greater hardship than would be avoided by not doing so;
iii. Refusal of the application would render the appeal nugatory; and
iv. Conditions in the case of Giella v Cassman Brown & Company Ltd (1973) EA 358 had been met.
13. Is that the case here? I am afraid not. The appellant is a defaulter. Even if one were to accept his assertion that he had paid Kes. 4,538,000/, out of Kes. 9,500,000/, he was required to pay under the agreement, he remains in default. The appellant/applicant had the obligation to show the Court that his appeal is not frivolous. I am not persuaded that he discharged this obligation.
14. In my view, allowing the application would amount to the Court rewriting the agreement that the parties freely entered into. As correctly pointed out by the learned magistrate, the Court should not do anything of that sort and must refrain from such conduct. Similarly, I am not persuaded that refusing to grant the orders sought would render the appeal nugatory. Whatever the merits of the appeal, if the appellant is ultimately successful, compensation would be available.
15. Has the test in Giella v Cassman Brown been met? The sum of what I have considered above is that the 3 conditions have not been met. In the circumstances, the application dated 28th November 2025 is dismissed with costs to be paid by the appellant/applicant.
16. It is so ordered.
Dated and signed in Nairobi, this 23rd day of April 2026. Delivered virtually through Microsoft TEAMS.