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

officer in charge of Malaba Police Station for safe custody pending the hearing and determination of the main suit 5. That upon the grant of prayer 4 above, the Honourable Court be pleased to issue orders for the OCS Malaba Police Station to assist in enforcement of the court order 6. That the cost of this application be provided for 3. The Application before this court was was grounded on the grounds set out on its face and further grounds set out in the Applicant’s Supporting Affidavit herein sworn by Joseph Anangwe on 24 th March 2025. 4. The gist of the instant Application is that on 24 th November 2023, the Respondent advanced to the Applicant a loan of Kshs. 100,000/= using motor vehicle registration number KAX 046 K (in this ruling referred to as ‘the suit motor vehicle) as security. 5. The suit motor vehicle was thereafter released to the Respondent on condition that the same would be returned to the Applicant upon the Applicant fully repaying the loan of Kshs. 100,000/= advanced to him by the Respondent plus the interest. 6. It was averred by the Applicant that he fully repaid the loan advanced to him by the Respondent to a tune of Kshs. 130,000/= but the Respondent failed to return the suit motor vehicle to the Applicant hence this suit. 7. The Respondent opposed the instant Application through a Replying Affidavit sworn by the Respondent on 25th April 2025. 8. The Affiant deposed that he advanced a loan of Kshs. 100,000/= to the Applicant on 26th March 2023 when the Applicant used the suit motor vehicle as security for the said loan. He added that the Applicant fully repaid that loan. 9. It was further deposed by the Respondent that on 26 th June 2024 the Applicant approached him to buy the suit motor vehicle at Kshs. Bungoma CMC COMC. No. E001 of 2025 Page 2 of 11 Ruling

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400,000/= which offer was accepted by the Respondent leading to execution of an oral motor vehicle sale agreement between the parties herein that was reportedly witnessed by one Dennis Mukwa Situma. The consequence of the alleged motor vehicle sale agreement between the parties herein was that the Applicant reportedly handed over the suit motor vehicle and its original logbook to the Respondent. 10. The Respondent also averred that the Applicant refused to sign the relevant motor vehicle transfer forms thereby causing the Respondent to file Bungoma Chief Magistrate’s Court Civil Suit No. E110 of 2025 on 21st March 2025 seeking for amongst other orders to compel the Applicant to sign the suit motor vehicle’s transfer forms. 11. For the reasons above, the Respondent urged this court to dismiss the instant Application with costs. ANALYSIS & DETERMINATION 12. This court has duly considered the parties’ pleadings, submissions, annextures, and authorities relied upon by each party. The only issue for determination is whether the instant Application is merited. Whether the Application and the Orders sought are merited 13. Before determining whether this Application and the Orders sought are merited, it is not lost to this court, and as rightfully submitted by the Respondent, that this court should refrain from making definitive findings of fact capable of disposing of the main suit at this interlocutory stage based on the conflicting Affidavit evidence before it. 14. Ringera, J (as he then was) in Airland Tours & Travel Limited vs. National Industrial Credit Bank Nairobi (Milimani) HCCC No. 1234 of 2002 stated that in an interlocutory application, the Court is not required to make any conclusive or definitive findings of fact or Bungoma CMC COMC. No. E001 of 2025 Page 3 of 11 Ruling

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law, most certainly not on the basis of contradictory affidavit evidence or disputed propositions of law. 15. The same position was adopted in Nairobi High Court Civil Case No. 517 of 2014 – Lucy Nungari Ngigi & 4 Others -vsNational Bank of Kenya Limited & Anor (eKLR) where it was stated: “....I am also aware that the 1st Defendant has raised issues in respect of the mortgage herein, their right to exercise the statutory power of sale, breach of the addendum, default of repayment of the loan etc. They have also raised some accountability issues from the 2nd Defendant on the purchase price. But even these queries should be reserved for and determined at the trial. These issues are in direct conflict with issues raised by the Plaintiffs and the 2nd Defendant. At this stage I should not make any comments or findings, or express opinions on the substantive issues in controversy in order to avoid hurting the trial herein...” (Emphasis added) 16. Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125, the Court of Appeal held stated that: “…..It is true that the Court is not required at that stage to decide finally whether the evidence is worthy of credit, or whether if believed it is weighty enough to prove the case conclusively: that final determination can only properly be made when the case for the defence has been heard…” 17. Having fully appreciated the principles of law set out in the authorities cited above, this court will confine itself to the issue of determining whether the Applicant has made out a case for the grant of injuctive orders. Bungoma CMC COMC. No. E001 of 2025 Page 4 of 11 Ruling

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18. The principles guiding the grant of an interlocutory injunction in this jurisdiction were set out in East African Industries vs. Trufoods [1972] EA 420 and Giella vs. Cassman Brown & Co. Ltd [1973] EA 358. Those principles were restated in Nguruman Limited vs. Jan Bonde Nielsen & 2 Others [2014] eKLR where the court rendered itself thus: “In an interlocutory injunction application, the applicant has to satisfy the triple requirements to; (a) establish his case only at a prima facie level, (b) demonstrate irreparable injury if a temporary injunction is not granted, and (c) ally any doubts as to (b) by showing that the balance of convenience is in his favour. These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. See Kenya Commercial Finance Co. Ltd V. Afraha Education Society [2001] Vol. 1 EA 86. If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does Bungoma CMC COMC. No. E001 of 2025 Page 5 of 11 Ruling

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not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between. It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or both that the question of balance of convenience would arise. The inconvenience to the applicant if interlocutory injunction is refused would be balanced and compared with that of the respondent, if it is granted.” 19. This court will now proceed to determine whether the Applicant has satisfied the principles for the grant of injunctive orders. 20. On whether the Applicants have established a prima-facie case, this court has had the benefit of going through the annextures placed before this court by the parties herein. 21. It is given that both the Applicant and the Respondent are laying claim to the suit motor vehicle through conflicting Affidavit evidence. The contradictory evidence can not be the basis of making a finding on who was the legal and/or equitable owner of the suit motor vehicle at the time of filing this suit. 22. It is this court’s considered view that the question of ownership of the suit motor vehicle can only be determined during a full trial. 23. In the Mrao Ltd Case (supra) the Court of Appeal defined a Prima- facie case as follows: ‘…It may not be easy to define what is meant by “prima facie case”, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence...The terms “prima facie” case, and “genuine and arguable” case do not necessarily mean the same thing, for in using another term, namely a sustainable cause of action, the words “prima facie” are frequently used to refer to a case which shifts the evidential burden of proof, rather than as giving rise to a legal burden of Bungoma CMC COMC. No. E001 of 2025 Page 6 of 11 Ruling

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proof in the manner of considering, which was in relation to the pleadings that had been put forward in the case…In civil cases a prima facie case is a case in which on the material presented to the Court a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter. A prima facie case is more than an arguable case. It is not sufficient to raise issues but the evidence must show an infringement of a right, and the probability of success of the applicant’s case upon trial. That is clearly a standard, which is higher than an arguable case.’ 24. Guided by the authority above on what constitutes a prima-facie case in interlocutory applications, and considering the fact that the issue of ownership of the suit motor vehicle can not be settled at this interlocutory stage, it follows that the Applicant has established a prima-facie case that can only be dislodged or proved with finality after a full trial. 25. As regards proof of irreparable injury, Halsbury’s Laws of England, 3rd Edition Volume 21, Paragraph 739 page 352 defines irreparable injury as; ‘injury which is substantial and could never be adequately remedied or atoned for by damages, not injury which cannot possibly be repaired and the fact that the plaintiff may have a right to recover damages is no objection to the exercise of the jurisdiction by grant of injunction, if his rights cannot be adequately protected or vindicated by damages. Even where the injury is capable of compensation in damages, an injunction may be granted, if the injury in respect of which relief is sought is likely to destroy the subject matter in question.’(Emphasis added) Bungoma CMC COMC. No. E001 of 2025 Page 7 of 11 Ruling

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26. It is given that if the injunctive orders sought herein are not granted the Respondent may use the suit motor vehicle in any manner he desires that may defeat the Applicant’s right to reposes the suit motor vehicle in good condition if at the end of the day this court makes a finding that the Applicant is the equitable and/or legal owner of the suit motor vehicle. That will cause damage to the Applicant. 27. This court is well aware of pronouncements in various High Court decisions that where damage to be suffered by a party can be compensated by way of damages, the court should not grant an injuctive order. 28. Whereas that argument may sound attractive, this court associates itself with the holding in Joseph Siro Mosioma vs. Housing Finance Company of Kenya Limited & 3 Others [2008] eKLR, where it was stated as follows by Warsame J (as he was then): “damages is not automatic remedy when deciding whether to grant an injunction or not. Damages is not and cannot be substituted for the loss which is occasioned by a clear breach of the law, in any case, the financial strength of a party is not always a factor to refuse an injunction. More so a party cannot be condemned to take damages in lieu of his crystalized right which can be protected by an order of injunction.” (Emphasis added) 29. The foregoing shows that the mere fact that one can be awarded damages for denial of an injunction does not deny an Applicant the necessary protection by way of an interim injunction. 30. In the circumstances, this court holds and finds that if the main suit is ultimately determined in favour of the Applicant, failing to preserve the suit motor vehicle at this stage may cause irreparable damage to the Applicant. Bungoma CMC COMC. No. E001 of 2025 Page 8 of 11 Ruling

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31. Turning to the ingredient of balance of convenience, this court is of the considered view that given that the Applicant has already satisfied the first two ingredients for grant of injunctive orders, it follows that the balance of convenience tilts in favour of the Applicant. 32. To this end, this court draws inspiration from Paul Gitonga Wanjau vs. Gathuthis Tea Factor Company Ltd & 2 Others [2016] eKLR, where the Court expressed itself thus on this issue:"…If applicant has a strong case on the merits or there is significant irreparable harm, it may influence the balance in favour of granting an injunction. The court will seek to maintain the status quo in determining where the balance on convenience lies.”(Emphasis added) 33. This court notes that the Applicant prayed for an order that the suit motor vehicle be placed in the custody of the OCS Malaba for safe custody pending the hearing and determination of this suit. 34. It is this court’s considered view that granting such an order may not preserve this suits subject matter given that the time in which this matter will be heard and determined is unknown. This means that if such an order is granted, the suit motor vehicle is likely to waste away at the Malaba Police Station yard for an indefinite period. This court takes judicial notice of motor vehicles that waste away, get vandalized, and even stolen from police yards. The suit motor vehicle must be protected from such perils. 35. Before penning off, this court notes that the orders sought by the Respondent in their Defence and Counterclaim filed herein are similar to the prayers sought by the Respondent in Bungoma CMC. Civil Suit No. E110 of 2025 where the Respondent has sued the Applicant herein. These two cases relate to the same subject matter; the suit motor vehicle. It is this court’s view that the Applicant should consider Bungoma CMC COMC. No. E001 of 2025 Page 9 of 11 Ruling

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withdrawing Bungoma CMC Civil Suit No. E110 of 2025 to ease pressure on the scarce judicial resources. DETERMINATION 36. For the reasons above, the following orders commend to this court:a) 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 b) The Defendant/Respondent is restrained, whether by himself or through any other person acting on their behalf, 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 c) 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 d) For expeditious disposal of this matter, the parties herein are ordered to comply with Order 11 of the Civil Procedure Rules within 14 days from the date hereof e) Costs of this Application shall be in the main suit. Read, signed, and delivered in open Court at Bungoma this 15 th day of May 2025 T.O. OMONO Bungoma CMC COMC. No. E001 of 2025 Page 10 of 11 Ruling

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RESIDENT MAGISTRATE In the presence of: Mr. Wayongo for the Defendant/Respondent Mr. Milimo for the Plaintiff/Applicant C/A: Albert Bungoma CMC COMC. No. E001 of 2025 Page 11 of 11 Ruling

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