Clara Wanja Namu Masinde v Halifax Financial Services Limited

4. The Defendant opposes the application through a Replying Affidavit sworn by Simon Gachomo, a Director of the Defendant, on 7th April 2025. It is contended that the application is frivolous, misconceived and an abuse of the court process. The Defendant avers that the Plaintiff and her husband procured financial accommodation on behalf of Micro Mobile Limited and defaulted in repayment. The Plaintiff voluntarily executed a Director’s Guarantee and Indemnity, under which interest was chargeable at 5% per month and 10% per month on default. 5. It is further stated that the suit in HCCOMM No. 244 of 2018 was resolved by mediation, and the Plaintiff did not raise any challenge to the guarantee. The Plaintiff has failed to honour the decree, necessitating the issuance of a Notice to Show Cause and a warrant of arrest. The Defendant contends that the Plaintiff’s attempt to shift blame to her husband is untenable and does not absolve her from liability as a guarantor. 6. Directions were issued that the application be canvassed by way of written submissions. The Plaintiff filed submissions dated 25th April 2025, and the Defendant filed submissions dated 14th May 2025. Analysis and Determination 7. I have carefully considered the Notice of Motion, the affidavits on record, the annexures thereto, and the written submissions of both parties. The issue that falls for determination is whether the Plaintiff has met the threshold for the grant of a temporary injunction and stay of execution. 8. The principles governing the grant of temporary injunctions are settled in Giella v Cassman Brown & Co. Ltd [1973] EA 358 and reaffirmed in Nguruman Limited v Jan Bonde Nielsen & Others [2014] eKLR. The applicant must demonstrate: i. A prima facie case with a probability of success; ii. That she stands to suffer irreparable harm that cannot be compensated by damages; iii. Where the court is in doubt, it will determine the matter on a balance of convenience. 9. A prima facie case was defined in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR as one that demonstrates an infringement of a right that calls for rebuttal at trial. In the present matter, the Plaintiff admits that she executed the Director’s Deed of Guarantee and Indemnity, both in 2015 and during the enhancement of the facility in 2016. Her contention is that she signed without knowledge of the consequences and that she was not involved in the company’s management. 10. Guarantees are solemn commercial instruments. In National Bank of Kenya Ltd v Pipeplastic Samkol & Another [2001] eKLR, the Court of Appeal held that courts cannot rewrite contracts or relieve parties from consequences of agreements freely entered into. 11. A guarantor is bound by the terms of the guarantee and cannot escape liability on account of internal arrangements within the company. In the present case, the Plaintiff does not dispute signing the guarantee. Her argument that she did not understand the implications cannot, without more, discharge her from liability. The guarantee is clear that in the event of default by the principal debtor, the guarantors would be liable. The Plaintiff has not demonstrated any misrepresentation, fraud, coercion, or undue influence that would impeach the validity of the guarantee. 12. Further, the Plaintiff participated in HCCOMM 244 of 2018 where a decree was issued following mediation. She did not raise issues of coercion, lack of knowledge, or impropriety in execution of the guarantee at that stage. The matter has therefore crystallized into a judgment duly entered by a competent court. As stated in Benjoh Amalgamated Ltd & Another v Kenya Commercial Bank Ltd https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17189/eng@2025-11-20 2

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[2014] eKLR, courts do not issue injunctions to restrain the enforcement of valid court decrees except in the clearest of circumstances. 13. On irreparable harm, the Plaintiff claims she risks civil jail and loss of property. These consequences flow directly from the decree in HCCOMM 244 of 2018, a matter not under appeal or review before this Court. Importantly, the Plaintiff voluntarily used her property as security by executing the guarantee. The law is clear that once a property is offered as security for a commercial loan, its loss is not irreparable (See Andrew Muriuki Wanjohi v Equity Building Society [2006] eKLR). 14. I find the balance of convenience tilts heavily in favour of allowing the Defendant to enjoy the fruits of its judgment. The Plaintiff has been in default and has not satisfied the decree. Moreover, the Plaintiff approaches the court seeking equitable relief while alleging no wrongdoing on the part of the Defendant; the plea that she was misled by her husband is not a legal defence. It is trite law that a guarantor cannot escape liability by shifting blame to a co-guarantor or principal debtor. 15. In sum, I find that the issues raised by the Plaintiff do not favour the grant of injunctive orders. The application is an attempt to reopen and frustrate the enforcement of a lawful decree. Stay of Execution 17. The Plaintiff also seeks a stay of execution of the decree issued in HCCOMM No. 244 of 2018. A stay of execution is an equitable relief governed by Order 42 Rule 6 of the Civil Procedure Rules. The applicant must show substantial loss, prompt application, and offer security to satisfy the decree if a stay is granted. 18. In the present case, the Plaintiff has not invoked Order 42 Rule 6, nor provided any form of security. She has also not demonstrated promptness in seeking this relief, considering that HCCOMM No. 244 of 2018 was mediated and a decree issued without objection at the time. Her application, therefore, is essentially an attempt to challenge a lawful and final decree indirectly. 19. The Plaintiff claims potential civil jail and loss of property and that she was misled by her husband or did not understand the guarantee does not amount to legal grounds for a stay. However, these consequences arise directly from her voluntary execution of a Director’s Guarantee and Indemnity, and not from any impropriety on the part of the Defendant. The principle that “equity aids the vigilant, not the indolent” applies squarely here. 20. On balance, granting a stay of execution would unfairly prejudice the Defendant, who is entitled to enjoy the fruits of a valid decree. The balance of convenience therefore weighs heavily against the Plaintiff, who has not demonstrated substantial loss, offered security, or established any legal basis to suspend enforcement. 21. Consequently, I find the Notice of Motion dated 11th March 2025 lacks merit and is hereby dismissed with costs. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 20TH DAY OF NOVEMBER, 2025. ............................................ P. M. MULWA JUDGE In the presence of: Ms. Natalie Obago h/b for Mr. Mbaluto for Plaintiff/Applicant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17189/eng@2025-11-20 3

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Mr. Ochieng for Defendant/Respondent Court Assistant: Carlos https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17189/eng@2025-11-20 4

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