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MagistrateDismissedCivil Suit No E011 of 2026· [2026] KEMC 679 (KLR)

Nyongesa v My Credit Ltd & another (Civil Suit E011 of 2026) [2026] KEMC 679 (KLR)

Magistrates' Court (Senior Resident Magistrate)
17 March 2026
2,290 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Bungoma magistrate dismissed a borrower's bid to stop repossession of his vehicle, holding that admitting loan default without proving illegality defeats an injunction.

What this practically means

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Executive summary

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The Plaintiff/Applicant moved the Magistrates' Court at Bungoma by Notice of Motion dated 14th January 2026 under Sections 1A, 1B, 3 and 3A, Order 2 Rule 2 and Order 51 Rule 1 of the Civil Procedure Act, seeking an injunction restraining the defendants from attaching, repossessing or selling his Isuzu NPR motor vehicle registration number KCF 520 E, which stood as security for a loan of Kshs. 650,000/= advanced by the 1st Respondent in May 2025. The Applicant conceded default in servicing the loan, which he attributed to prevailing economic conditions, disputed the sum of Kshs. 269,000/= claimed (admitting only Kshs. 160,000/=), and sought three months to defray the arrears. The 1st Respondent, through a Replying Affidavit by its Debt Recovery Manager David Kage, produced the loan documents and a Loan Account Statement showing an outstanding balance of Kshs. 239,900/=, and maintained that the Applicant had no prima facie case, that damages would be an adequate remedy, and that the application was an abuse of process intended to delay enforcement of a secured debt. Framing the sole issue as whether the application was merited, the court applied the Giella principles as restated in Nguruman, holding the three injunction requirements to be sequential hurdles. The Applicant, having admitted breach of the loan agreement and demonstrated no illegality or vitiating factor, failed at the first hurdle of a prima facie case; a mere dispute over the amount outstanding cannot ground an injunction. The court further declined to order restructuring of the arrears over three months, holding it cannot rewrite a lawful contract voluntarily entered into, that being a matter for the parties' consent. The remaining pillars of irreparable injury and balance of convenience were rendered moot. The application was dismissed with costs to the 1st Respondent.

Key legal issues

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01

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

Holding

No. The Applicant admitted defaulting on the loan, did not demonstrate illegality or any vitiating factor in the loan agreement, and a mere dispute over the outstanding amount does not ground an injunction

Reasoning

The Applicant conceded the default and the charge of the suit motor vehicle as security. The 1st Respondent produced a Loan Account Statement showing the sum claimed was per the agreement's terms, inclusive of interest and tracking fees. Citing Mrao Ltd, a prima facie case requires an apparent infringement of a right with probability of success; a dispute over quantum, per Sammy Japheth Kavuku v Equity Bank, does not suffice.

p. 9
02

Whether the court can order restructuring of the loan arrears over three months

Holding

No. Such relief can only be granted by consent of the parties; the court cannot rewrite a lawful contract

Reasoning

The Applicant asked for three months to clear arrears, but the court held that restructuring a loan is a matter reserved for negotiation between lender and borrower, and granting the prayer would amount to rewriting the agreement, which the court has no power to do, citing National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another.

p. 8
03

Whether the court should consider irreparable injury and balance of convenience

Holding

No. Having failed on the first hurdle, consideration of the remaining pillars was rendered moot

Reasoning

Applying Nguruman Limited v Jan Bonde Nielsen, the three requirements are separate, distinct and sequential hurdles. Since the Applicant failed to establish a prima facie case with probability of success, the court declined to engage in what it termed an academic exercise by considering the remaining conditions.

p. 9

Legal principles established

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  • An applicant for an interlocutory injunction must surmount the three Giella/Nguruman hurdles sequentially; failure on the first renders the rest moot
  • A dispute as to the amount outstanding is not a basis for an injunction to restrain a lender from recovering its money unless the amount claimed is excessive per the terms of the agreement
  • A court cannot rewrite a lawful contract voluntarily entered into between parties

Court orders

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  1. 1.The Applicant's Application dated 14th January 2026 is dismissed with costs to the 1st Respondent

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3 and 3A
  • Civil Procedure ActOrder 2 Rule 2
  • Civil Procedure ActOrder 51 Rule 1

Cases cited (8)

  • Mrao Ltd v First American Bank of Kenya Ltd & 2 Others
    [2003] KLR 125
  • Lucy Nungari Ngigi & 4 Others -vs- National Bank of Kenya Limited & Anor
    (2013) eKLR
  • 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
  • Sammy Japheth Kavuku v Equity Bank Limited & Another
    (2014) eKLR
  • National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another
    [2002] 2 EA 503
Jurisdiction invoked
Sections 1A, 1B, 3 and 3A, Order 2 Rule 2 and Order 51 Rule 1 of the Civil Procedure Act

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, "Nyongesa v My Credit Ltd & another (Civil Suit E011 of 2026) [2026] KEMC 679 (KLR)", Case Analysis (2026). Civil Suit No E011 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/679/eng@2026-03-17

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