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High CourtDismissedNotice of Motion dated 10.6.2019 (High Court civil suit, Nairobi)

Seif Mohammed t/a (Plaintiff/Applicant) v Ramco Group (Defendant/Respondent) - Application for temporary restraining injunction

High Court of Kenya
14 May 2020
2,257 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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Disputing the amount of interest owed under a contract is generally not enough to stop a creditor from legally repossessing your assets.

What this practically means

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Executive summary

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This ruling by the High Court at Nairobi (D.O. Chepkwony, J) determines a Notice of Motion dated 10.6.2019 in which the Plaintiff/Applicant sought a temporary restraining injunction barring the Defendant/Respondent from repossessing, attaching or advertising for sale motor vehicles purchased under a hire purchase agreement, pending trial. The Applicant, which had defaulted on repayments and issued dishonoured cheques, argued that the Respondent's claimed interest of Kshs.31,108,591 on a principal of Kshs.1,481,361 violated the duplum rule and was arbitrary. The Respondent maintained that the parties had contractually agreed to a 12% p.a. variable interest rate and a 5% monthly late payment charge, that the Applicant was in persistent breach, and that a 14-day repossession notice had been properly issued; it also asserted it was a non-deposit taking institution not governed by the Banking Act. Applying the Giella v Cassman Brown test, the Court found the Applicant had failed to establish a prima facie case with a probability of success: indebtedness was undisputed, the dishonoured cheques were unexplained, the interest rates were contractually agreed, and a dispute as to the amount of interest owing is not a basis for interlocutory injunctive relief. The duplum rule question was reserved for trial. The Court vacated the interim injunctive relief previously granted, dismissed the application, and awarded costs to the plaintiff. The judgment was delivered online pursuant to COVID-19 directions.

Key legal issues

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01

Whether the Applicant established a prima facie case with a probability of success

Holding

No - the indebtedness was not denied, bouncing cheques were unexplained, and the alleged arbitrary interest/duplum claim could not be determined at the interlocutory stage

Reasoning

The Court applied the Giella tripartite test. The Applicant did not deny indebtedness or the dishonoured cheques, and offered no explanation. The parties had contractually agreed the interest rates in the Hire Purchase Agreement dated 27.6.2014, and the Applicant did not show on a prima facie basis that the rates were exorbitant or extravagant. The duplum rule question was reserved for trial.

p. 3
02

Whether a court should interfere with contractual repossession rights

Holding

No - the Respondent was entitled to exercise its contractual remedies under the Hire Purchase Agreement following the Applicant's breach

Reasoning

Relying on National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd, the Court held that parties are bound by their contract unless coercion, fraud or undue influence are pleaded and proved. The Applicant was in breach and the Respondent was entitled to utilise its remedies under the Hire Purchase Agreement as it did.

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Legal principles established

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  • A dispute as to the amount of interest owing is not a basis upon which interlocutory injunctive relief may be granted
  • A court cannot re-write a contract between parties; parties are bound by their contractual terms unless coercion, fraud or undue influence are pleaded and proved

Court orders

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  1. 1.The temporary injunctive relief previously granted to the Applicants is vacated
  2. 2.The Notice of Motion dated 7.6.2019 is dismissed
  3. 3.Costs to be borne by the plaintiff
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act (Cap 21), Order 40 Rules 1(a), 2, 4 and 10 and Order 51 Rule 1 of the Civil Procedure Rules, and Article 50 of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Seif Mohammed t/a (Plaintiff/Applicant) v Ramco Group (Defendant/Respondent) - Application for temporary restraining injunction", Case Analysis (2020). Notice of Motion dated 10.6.2019 (High Court civil suit, Nairobi). Source: 

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.