Crossport Motors Limited & 1 other v Avanzar Financial Solutions Limited & 2 others

the illegality of the transfer of Toyota Vanguard registration No. KCV 803P, reversal of the transfer, special damages for repairs and loss of income, costs, and interest. He averred that the Trial Court delivered Judgment on 28th November 2024, prompting them to file Commercial Appeal No. E393 of 2024, which he asserts is arguable and raises substantial legal and factual issues including, reliance on a forged affidavit and disregard of their beneficial ownership rights over the suit motor vehicle. Mr. King’uri stated that without the orders being sought, the suit motor vehicle may be disposed of, or used by the respondents, rendering the Appeal nugatory and causing the appellants to suffer substantial loss. He stated that the application herein was filed without delay. 3. In opposition to the application, the 1st respondent filed a replying affidavit sworn on 31st January 2025 by Mr. Ben Gachoya, the 1st respondent’s Director. He averred that the Judgment delivered on 28th November 2024 ordered the unconditional release of Toyota Vanguard registration No. KCV 803P to the 1st respondent. He further averred that the said motor vehicle was collected on 2nd January 2025 and stored securely at Grey Post Limited, to prevent vandalism and further damage which was noted while the said motor vehicle was at the Police Station. He contended that the Appeal does not invalidate the release order. He asserted that the suit motor vehicle should remain in their custody, and not be returned to the Police or sold before the Appeal is heard, as such actions would prejudice their lawful ownership and undermine the Judgment. Analysis and Determination. 4. I have considered the application herein, the grounds on the face and of it the affidavit filed in support thereof, as well as the replying affidavit by the respondent. The issues that arise for determination is whether the suit motor vehicle should be kept at Kahawa Sukari Police Station pending the determination of the Appeal or if it should be sold jointly by the appellants and the 1st respondent, and for the proceeds of the sale deposited in Court. 5. The appellants herein filed a suit in the Chief Magistrate’s Court being MCCC No. E4846 of 2023 against the respondents. The suit was determined vide a Judgment delivered on 28th November 2024 in favour of the 1st respondent, directing the OCS Kahawa Sukari Police Station to unconditionally release the motor vehicle registration number KCV 803P Toyota Vanguard to the 1st respondent and/ or its authorized agents. 6. In the application herein, the appellants seek an order for maintaining the status quo by keeping motor vehicle registration No. KCV 803P Toyota Vanguard at Kahawa Sukari Police Station pending the determination of this Appeal. The import of a status quo order is that it freezes the situation exactly as it is. Its effect is that it maintains the current state of affairs as it exists at the time the order is issued, until further orders by the Court. 7. The 1st respondent having demonstrated through the Motor Vehicle Acceptance Form from Grey Post Limited that the suit motor vehicle was collected from Kahawa Sukari Police Station on 2nd January 2025 and is now stored at Grey Post Limited under the 1st respondent’s instructions, it is evident that the status quo order being sought by the appellants cannot be granted as it has been overtaken by events. 8. The appellants also pray for an order that the said motor vehicle be jointly sold by the appellants and the 1st respondent and thereafter the proceeds be deposited in Court. It is however noteworthy that the Judgment delivered by the Trial Court granted physical and legal ownership of the suit motor vehicle to the 1st respondent. The 1st respondent has neither expressed its intention to sell neither have the appellants demonstrated that the 1st respondent intends to sell the suit motor vehicle. Therefore, in the absence of an order from a Court of competent jurisdiction setting aside the Judgment delivered by the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15235/eng@2025-10-24 2

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Trial Court on 28th November 2024, this Court cannot issue an order compelling the 1st respondent to sell the suit motor vehicle jointly with the appellants and to deposit the proceeds of the said sale in Court. 9. Although the appellants have an undoubted right of appeal against the Trial Court’s Judgment, the 1st respondent has a decree which it should not be obstructed from executing unless there is a good reason. The appellants contended that in the event that the orders being sought herein are not granted, they stand to suffer substantial loss. Substantial loss was defined by the Court in James Wangalwa & another v Agnes Naliaka Cheseto [2012] eKLR as follows – The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal. This is what substantial loss would entail… 10. In this instance, I am not persuaded that the appellants stand to suffer substantial loss owing to the deprivation of their ownership rights regarding the suit motor vehicle in the event that the orders being sought herein are not granted, as there is a valid Judgment that has neither been varied and/or set aside by a Court of competent jurisdiction, granting the physical and legal ownership of the suit motor vehicle to the 1st respondent. It can therefore not be said that the appellants have been and/or will be deprived of their ownership rights of the suit motor vehicle in the event that the instant application is disallowed. 11. I am not persuaded that the appellants have made out a case to warrant interference with the 1st respondent’s ownership and use of the suit motor vehicle. 12. In the circumstances, this Court finds that the appellants’ application dated 27th December 2024 is not merited. It is hereby dismissed with costs to the 1st respondent. It is so ordered. DELIVERED, DATED AND SIGNED AT NAIROBI ON THIS 24TH DAY OF OCTOBER 2025. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM. NJOKI MWANGI JUDGE In the presence of:Mr. Morara Omoke for the appellants/applicants No appearance for the respondents Ms B. Wokabi - Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/15235/eng@2025-10-24 3

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