REPUBLIC OF KENYA IN THE CHIEF MAGISTRATES COURT AT BUNGOMA CIVIL SUIT NO. E011 OF 2026 ERNEST WEKESA NYONGESA………………….…….………...PLAINTIFF VERSUS MY CREDIT LIMITED & ANOTHER………………………...DEFENDANTS RULING 1. Before this court for determination is the Plaintiff/Applicant’s (‘the Applicant’) Application under a Certificate of Urgency dated 14 th January 2026 expressed to be brought under Sections 1A, 1B, 3, and 3A, Order 2 Rule 2 and Order 51 Rule 1 of the Civil Procedure Act seeking the following orders: 1. Spent 2. That the defendants be restrained from attaching, repossessing, selling the plaintiff motor vehicle make Isuzu, model NPR, registration number KCF 520 E pending hearing and final determination of this application and main suit 3. That costs be provided for 2. The instant Application was premised on the ground that the Applicant had paid 1/3 of the loan facility, which he was willing to pay. He added that he had failed to clear the loan timeously due to the prevailing economic conditions in this country, and that he was seeking three months to clear the loan arrears.
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3. The grounds above were fortified by the Supporting Affidavit sworn by the Applicant on 14th January 2026, where the Applicant conceded that he had defaulted in servicing the loan of Kshs. 650,000/= advanced to him by the 1 st Respondent. 4. The Applicant admitted owing the 1st Respondent Kshs. 160,000/= not Kshs. 269,000/= that the 1st Respondent was seeking to recover from him. 5. The Applicant also admitted that he had used his motor vehicle registration number KCF 520 E (“suit motor vehicle”) as security for the loan advanced to him by the 1st Respondent 6. The 1st Respondent opposed the instant Application through a Replying Affidavit sworn on 11th February 2026 by their Debt Recovery Manager one David Kage. 7. Mr. Kage averred that on 23rd May 2025, the 1st Respondent advanced a loan of Kshs. 650,000/= to the Applicant who offered the suit motor vehicle as security for the loan. He further averred that the Applicant was to service the said loan advanced to him through 12 equal monthly installments of Kshs. 80,167/=. 8. He placed before this court a Business Loan Application dated 12th May 2025, Loan Offer Letter dated 23rd May 2025, a Moveable Property Security Agreement dated 23rd May 2025, and a Loan Account Statement dated 07th February 2026 showing that the Applicant owed the 1 st Respondent Kshs. 239,900/=, to substantiate the averments in his Replying Affidavit. 9. The affiant further averred that the Applicant had failed to establish a prima facie case with a probability of success, and that any damage caused to the Applicant through the sale of the suit motor vehicle could be compensated by way of damages.
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10.He added that the Applicant had not proved any fraud, illegality, and breach of the loan agreement by the 1st Respondent. 11.The 1st Respondent described the instant Application as misconceived, frivolous, and an abuse of the court process filed by the Applicant in an attempt to delay enforcement of a duly secured debt. 12.Given the above, the 1st Respondent took the position that the balance of convenience tilted in their favour, hence the instant Application ought to be dismissed with costs. Parties’ Written Submissions 13.The written submissions filed by the Applicant and the 1 st Respondent were largely a rendition of the contents of their respective pleadings herein, summarized above. Therefore, it will not serve any purpose for this court to reproduce the said written submissions in this ruling. ANALYSIS & DETERMINATION 14.This court has given due regard to the parties’ pleadings, written submissions, annexures, and the authorities relied upon by each party. It is this court’s humble view that the only issue for determination is whether the instant Application is merited. Whether the Application and the Orders sought are merited 15. Before proceeding to determine whether the instant Application is merited, this court warns itself of the dangers of making definitive findings of fact or law at this interlocutory stage. This is in line with the Court of Appeal’s guidance in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125, where the Court stated:
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“…..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…” 16.Similarly, in Lucy Nungari Ngigi & 4 Others -vs- National Bank of Kenya Limited & Anor (2013) eKLR, the court stated as follows on this issue: “....I am also aware that the 1 st 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 2 nd 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) 17.Be that as it may, the authorities above do not in any way prevent this court from making definitive findings at this stage on issues which are not contested by the parties. 18.The Applicant herein seeks injunctive orders. 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
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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 not permit “leap-
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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. A reading of the authority above reveals that an Applicant must surmount the pillars for the grant of the injunctive orders sequentially. Simply put, failure by an Applicant to surmount the first hurdle for the grant of injunctive orders renders the consideration of the other hurdles moot. 20.This court will now proceed to determine whether the Applicant has satisfied the principles for the grant of injunctive orders sequentially. 21.On whether the Applicant has established a prima facie case, this court notes that the Applicant did not set out with precision and clarity on whether he had established a prima facie case for the grant of injunctive orders. 22.However, this court gathers from the Applicant’s pleadings and written submissions that the Applicant did not dispute breaching the loan agreement between him and the 1st Respondent herein by failing to service the loan as agreed. He only took issue with the amount of Kshs. 269,000/= the 1 st Respondent was seeking to recover from him. 23.The Applicant was also urging this court to allow him to defray the loan arrears in three months. 24.The 1st Respondent on the other hand took the position that the Applicant having not demonstrated at this stage that the loan agreement herein was tainted with any vitiating factor, and the 1 st Respondent having complied
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with the law in seeking to sell the suit motor vehicle for recovery of the loan arrears, the Applicant had not established a prima facie case for the grant of the injunctive orders sought herein. 25.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 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.’ 26.Guided by the authority above, the question that abounds at this stage is whether the Applicant has demonstrated that there exists a right which has
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been apparently infringed by the Respondents to call for an explanation from the latter. 27. The Applicant’s prayer for the injunctive orders is primarily predicated on the allegation that the 1st Respondent is seeking to recover Kshs. 269,000/= from him yet to the best of his knowledge, he owes the 1 st Respondent Kshs. 160,000/=. The Applicant also seeks to defray the admitted loan arrears of Kshs. 160,000/=. 28.Turning to the evidence placed before this court, the 1st Respondent placed before this court Loan Account Statement dated 07 th February 2026 showing that the Applicant owed the 1st Respondent Kshs. 239,900/=. 29.A reading of the said loan agreement shows that the claimed sum of Kshs. 239,900/= is inclusive of the interest on the loan arrears as well as other costs like tracking fees. Therefore, the money the 1 st Respondent seeks to recover from the Applicant is per the terms of the loan agreement herein between the Applicant and the 1st Respondent. 30.In any event, a dispute as to the amount outstanding is not a basis for an injunction to restrain a lender from recovering its money from a borrower unless the amount claimed by the lender is excessive per the terms of the agreement between the parties (see Sammy Japheth Kavuku v Equity Bank Limited & Another (2014) eKLR). 31.On whether this court can order the Applicant to defray the loan arrears in three months as requested by the Applicant, this court takes the position that such a request can only be granted by this court by consent of the parties. That is a matter that is a preserve of discussions between a lender and a borrower. 32.Granting the Applicant the prayer to defray the loan arrears in three months will be akin to this court rewriting the loan agreement between the Applicant
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and the 1st Respondent. The law in this jurisdiction is that this court cannot rewrite a lawful contract voluntarily entered into between parties (see National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another [2002] 2 EA 503). 33.The Applicant has not demonstrated at this stage a prima facie case of illegality of the loan agreement between him and the 1 st Respondent. Therefore, this court cannot rewrite the lawful contract between the Applicant and the 1st Respondent herein as sought by the Applicant in the instant Application. 34.The upshot of the foregoing is that the Applicant has failed at this interlocutory stage to establish a prima facie case with probabilities of success. 35.The Applicant having failed to surmount the first hurdle for the grant of an injunction, this court’s consideration of the other pillars for the grant of an injunction has been rendered moot. In the circumstances, this court declines to deploy the scarce judicial resources in an academic exercise. DETERMINATION 36.It is against this backdrop that the Applicant’s Application dated 14 th January 2026 is dismissed with costs to the 1st Respondent. Read, signed, and delivered in open Court at Bungoma this 17th day of March 2026 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of:
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Plaintiff Mr. Wamunyolo for the Defendant C/A: Mr. Rioba
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