MY CREDIT LIMITED VS ESTHER KALEKYE MWOLOLO

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAJIADO

CIVIL APPEAL NO. E021 OF 2023

MY CREDIT LIMITED…………………………………………………………..APPELLANT

VERSUS

ESTHER KALEKYE MWOLOLO………………………………………….RESPONDENT

RULING

1. My Credit Limited, the Appellant herein, has filed this Notice of Motion application dated 5^th May 2023 seeking the following reliefs:
2. Spent.
3. That this Honourable Court be please to issue an order setting aside the ruling and/or consequential proceedings arising from the ruling in Miscellaneous Application No. E005 of 2023 Esther Kalekye Mwololo v My Credit Limited pending the hearing and determination of the Application filed herewith.
4. That this Honourable Court be please to issue an order setting aside the ruling and/or consequential proceedings arising from the ruling in Miscellaneous Application No. E005 of 2023 Esther Kalekye Mwololo v My Credit Limited pending the hearing and determination of the Appeal filed herewith.
5. That costs of the application be provided with.
6. The grounds in support of the application are found on the face of it and in the Supporting Affidavit sworn by David Wangai, the Chief Operations Officer of the Applicant on 5^th May 2023.
7. In summary form, the Respondent secured a loan from the Appellant in the sum of Kshs 300,000 which was secured by a Chattel Mortgage and joint registration of motor vehicle number  KDB 610U. The loan was to be repaid within 24 months in instalments of Kshs 26,000 per month and would attract interest at the flat rate of 4.5% and 3% interest in the event of default.
8. The Respondent fell in arrears prompting the Appellant to sent a demand notice dated 24^th November 2022 at which time the loan amount including accrued interest stood at Kshs 312,891 which demand notice elicited no response from the Respondent. The Appellant pursued recovery of the loan and instructed Charlton Auctioneers to repossess the motor vehicle.
9. The Respondent moved to court through a Notice of Motion in CMCC No. E005 of 2023 to seek temporary injunction to restrain the Appellant from auctioning, selling or transferring ownership of Motor Vehicle Registration No. KDB 610U. It is the case for the Appellant that after service of that application and filing of Replying Affidavit, the matter proceeded for hearing through written submissions.
10. It is stated that ruling was reserved for 6^th April 2023 on which date the matter was not listed in that day’s cause list. The trial magistrate informed the parties that she did not have the file and that parties would be contacted and informed of a new date. It is stated that the Appellant received an email on 11^th April 2023 from the court forwarding the ruling dated 6^th April 2023 yet parties had not filed their submissions and that the Ruling showed that the trial court had granted prayers 2 and 3 of the Respondent’s application.
11. It is the case for the Appellant that it continues to suffer financial losses until the money owed by the Respondent is paid.
12. The Respondent did not file Replying Affidavit or written submissions as directed by this court despite service of the application. The Appellant has filed submissions dated 1^st November 2023. I have read the submissions, and the authorities relied on by the Applicant.
13. This court is being moved to invoke its discretionary powers to set aside the ruling and/or consequential proceedings arising from the ruling in Misc. Application No. E005 of 2023. Order 40 Rule 7 of the Civil Procedure Rules empowers this court to discharge, vary and/or set aside any order for an injunction. Although Order 40 Rule 7 is not one of the provisions relied on by the Appellant in their Notice of Motion under consideration, it is clear to this court that they are seeking setting aside of the orders of the trial court.
14. It is my considered view that before a party can benefit from such orders as are being sought in this application, that party must satisfy the court that it deserves the orders it is seeking. Such a party must demonstrate good cause. As stated in Patel v E. A Carge Handling Services Ltd [1974] EA 75, a case cited by the Appellant, the discretion of the court to set aside or vary orders has no limits but in so doing the court must do justice to the parties.
15. I have seen documents attached to the Notice of Motion under consideration. I have also read the Memorandum of Appeal filed herein and considered the submissions by the Appellant. I am satisfied that the Appellant has demonstrated that it has an arguable defence which ought to be determined on its merits. The application also raises issues of fair hearing.
16. I am persuaded to allow this application, which I hereby do. The Notice of Motion dated 5^th May 2023 is hereby allowed in its entirety. Orders accordingly.

Dated, signed and delivered this 17^th January 2025