Cmc Motors Group Ltd & Another v Evans Kageche Boro [2006] KECA 60 (KLR)

The Judge was required to determine whether the respondent showed a prima facie case that the tractor was sold on cash basis and fully paid for. Instead he resolved the privity question, an issue raised by the 1st appellant's defence, not by the respondent who sued both appellants. The executed hire purchase agreement dated 30th September 1998 and the forwarding letter of 9th October 1998 were unchallenged; the respondent's affidavit claim of a cash purchase could not stand outside the statutory proviso, so his case was arguable at best, not prima facie.

Because the hire purchase agreement had been reduced to writing, section 97 of the Evidence Act required its terms to be proved by the document itself, and section 98 barred oral evidence contradicting, varying, adding to or subtracting from those terms unless within the proviso. The respondent's assertion of an oral cash sale was not prima facie within the proviso, so the documented hire purchase terms — deposit, hire charge and 24 monthly instalments — controlled and defeated the claim of full payment.

The Judge held the applicant had raised privity, but the respondent never pleaded it in the amended plaint, replying affidavit or submissions — he sued both appellants. The agency-letter point came from the 1st appellant's defence. Clause 17 empowered the owner to appoint any branch of CMC Motors Group Ltd to enforce its rights without a letter in writing, so the foundation of the ruling was misplaced and the injunction was granted on a frivolous, extraneous issue.

An interlocutory mandatory injunction requires special circumstances, a clear case and a high degree of assurance that the applicant's case will succeed after trial. The superior court made no such finding and the respondent demonstrated none. Because the Judge neither applied the Giella tests nor the mandatory-injunction principles the appellants relied on, the mandatory limb of the order could not stand.

The grant of an interlocutory injunction requires the court to move through the Giella ladder: a prima facie case with probability of success, irreparable harm not compensable in damages, and the balance of convenience. The ruling addressed only the agency-letter and cross-examination point; the irreparable-injury enquiry was omitted entirely, so the discretionary order was granted on an incomplete application of the settled principles.

Following Mbogo v Shah and Giella, an appellate court interferes with discretion only where the judge misdirected himself or failed to apply the correct principles. Here the Judge failed to apply both the interlocutory and the mandatory injunction principles, granted relief on an extraneous issue and ignored irreparable harm; his discretion was therefore not judicially exercised and the Court set the ruling aside and dismissed the application.