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MagistratePartially AllowedBungoma CMC COMC. No. E001 of 2025· [2025] KEMC 433 (KLR)

Anangwe v Nyongesa (Commercial Case E002 of 2025) [2025] KEMC 433 (KLR)

Chief Magistrate's Court, Bungoma
15 May 2025
2,887 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Bungoma court blocked the sale or misuse of a disputed car but refused to store it at a police station.

What this practically means

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Executive summary

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The Plaintiff/Applicant moved the Bungoma Chief Magistrate's Court by a Certificate of Urgency application dated 24th March 2025, seeking a temporary injunction restraining the Defendant/Respondent from selling, disposing of, wasting or damaging motor vehicle KAX 046 K, plus an order placing the vehicle in the custody of the OCS Malaba Police Station. The Applicant averred that the Respondent advanced him a loan of Kshs. 100,000/- secured by the vehicle, which he repaid to the tune of Kshs. 130,000/-, yet the vehicle was not returned. The Respondent countered that the loan was repaid but that the Applicant subsequently sold him the vehicle for Kshs. 400,000/- under an oral sale agreement, and that the Applicant refused to sign transfer forms, prompting the Respondent to file Bungoma CMC Civil Suit No. E110 of 2025. Applying the Nguruman/Giella triplet, the court declined to make definitive findings on the conflicting affidavits, held the ownership question was for trial, and found a prima facie case, irreparable injury and balance of convenience in the Applicant's favour. However, it refused the safe-custody order, taking judicial notice of vehicles wasting away in police yards. The court restrained the Respondent from selling, wasting or damaging the vehicle and from using its logbook as collateral, directed that it remain serviceable and within the court's jurisdiction, ordered compliance with Order 11 within 14 days, and put the costs of the application in the main suit. It also suggested the Applicant consider withdrawing the parallel suit in Bungoma CMC Civil Suit No. E110 of 2025.

Key legal issues

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01

Whether the Applicant established a prima facie case for an interlocutory injunction

Holding

Yes - the ownership dispute could only be resolved at trial, so the Applicant's claim over the suit motor vehicle was a prima facie case

Reasoning

Both parties laid claim to the vehicle through conflicting affidavit evidence. Citing Mrao Ltd, the court held the ownership question could not be settled at the interlocutory stage; the Applicant therefore established a prima facie case that could only be dislodged or proved after a full trial.

p. 7
02

Whether the Applicant would suffer irreparable injury if the injunction was not granted

Holding

Yes - failure to preserve the vehicle could cause irreparable damage if the Applicant is ultimately found to be the owner

Reasoning

Relying on Halsbury's Laws and the Joseph Siro Mosioma decision, the court rejected the argument that damages would suffice, holding that damages is not an automatic remedy and the Applicant should not be condemned to damages where a crystallised right can be protected by injunction.

p. 8
03

Where the balance of convenience lies

Holding

In favour of the Applicant, having satisfied the first two ingredients

Reasoning

Following Paul Gitonga Wanjau, the court held that where the applicant has a strong case on the merits and significant irreparable harm, the balance tilts toward granting the injunction and maintaining the status quo.

p. 9
04

Whether the vehicle should be committed to the OCS Malaba Police Station for safe custody

Holding

No - such an order would not preserve the subject matter

Reasoning

The court took judicial notice of vehicles wasting away, being vandalised or stolen from police yards, and held that leaving the vehicle at Malaba Police Station for an indefinite period would not preserve it. Preservation orders were tailored instead.

p. 9

Legal principles established

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  • A court at the interlocutory stage should not make definitive findings of fact on conflicting affidavit evidence capable of disposing of the main suit
  • The three Giella/Nguruman conditions for interlocutory injunctions are sequential hurdles that must each be surmounted
  • Damages is not an automatic remedy and a party cannot be condemned to take damages in lieu of a crystallised right protected by injunction

Court orders

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  1. 1.The Defendant/Respondent is restrained, whether by himself or through any other person acting on their behalf, from selling or otherwise in any other way disposing of, wasting and/or damaging the suit motor vehicle pending the hearing and determination of this suit
  2. 2.The Defendant/Respondent is restrained from using the suit motor vehicle's logbook as collateral/security for any loan and/or financial facility pending the hearing and determination of this suit
  3. 3.The Defendant/Respondent is directed to ensure that the suit motor vehicle remains in serviceable condition and that the same should not leave the jurisdiction of this court pending the hearing and determination of this suit
  4. 4.The parties are ordered to comply with Order 11 of the Civil Procedure Rules within 14 days from the date hereof
  5. 5.Costs of the Application shall be in the main suit

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 63(e)
  • Civil Procedure RulesOrder 51(1); Order 40(1),(2),(3)&(4)&(10); Order 11

Cases cited (10)

  • Airland Tours & Travel Limited vs. National Industrial Credit Bank
    Nairobi (Milimani) HCCC No. 1234 of 2002
  • Lucy Nungari Ngigi & 4 Others vs. National Bank of Kenya Limited & Anor
    Nairobi High Court Civil Case No. 517 of 2014 (eKLR)
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 Others
    [2003] KLR 125
  • East African Industries vs. Trufoods
    [1972] EA 420
  • Giella vs. Cassman Brown & Co. Ltd
    [1973] EA 358
  • Nguruman Limited vs. Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • Kenya Commercial Finance Co. Ltd V. Afraha Education Society
    [2001] Vol. 1 EA 86
  • Joseph Siro Mosioma vs. Housing Finance Company of Kenya Limited & 3 Others
    [2008] eKLR
  • Paul Gitonga Wanjau vs. Gathuthis Tea Factor Company Ltd & 2 Others
    [2016] eKLR
  • Halsbury's Laws of England, 3rd Edition Volume 21
    Paragraph 739 page 352
Jurisdiction invoked
Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 51(1) and Order 40(1),(2),(3)&(4)&(10) of the Civil Procedure Rules

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, "Anangwe v Nyongesa (Commercial Case E002 of 2025) [2025] KEMC 433 (KLR)", Case Analysis (2025). Bungoma CMC COMC. No. E001 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/433/eng@2025-05-15

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