[2019] KEHC 1391 (KLR)
The court found that the appellant was in breach of the sale agreement by failing to pay the agreed purchase price for the motor vehicle within the stipulated period. As there was no express denial of this breach, the court held that it could not grant a mandatory injunction or stay of execution to a party in...
Source-derived case information.
- Citation
- [2019] KEHC 1391 (KLR)
- Parties
- Appellant: Benjamin Wambua Ndolo; Respondent: Executive Super Rides Limited; Respondent: The Ale Auctioneers
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 342 of 2019
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution and Mandatory Injunction Pending Appeal
- Outcome
- application dismissed with costs to the respondents
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Execution, Mandatory Injunction, Contract Breach, Sale of Goods, Remedies for Breach
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benjamin Wambua Ndolo
Appellant
Executive Super Rides Limited
Respondent
The Ale Auctioneers
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution and Mandatory Injunction Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to an order of stay of execution pending appeal.
- 2 Whether a mandatory injunction should be granted to the appellant in respect of the seized motor vehicle.
- 3 Whether the court can rewrite the contract between the parties where there is an admitted breach.
Ratio Decidendi
The court found that the appellant was in breach of the sale agreement by failing to pay the agreed purchase price for the motor vehicle within the stipulated period. As there was no express denial of this breach, the court held that it could not grant a mandatory injunction or stay of execution to a party in breach, nor could it rewrite the contract to relieve the appellant of his obligations. The court further held that the appellant had not established a clear right to the orders sought or demonstrated that denial would result in extreme prejudice. Consequently, the application for stay of execution and mandatory injunction was dismissed with costs to the respondents.
Court Disposition
application dismissed with costs to the respondents
Orders
- The application dated 20th June, 2019 is dismissed.
- Costs awarded to the respondents.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL NO. 342 OF 2019
BENJAMIN WAMBUA NDOLO..............................................................APPELLANT
VERSUS
EXECUTIVE SUPER RIDES LIMITED......................................1ST RESPONDENT
THE ALE AUCTIONEERS.........................................................2ND RESPONDENT
(Appeal for Ruling /Order of the Senior Principal Magistrate’s Court of Nairobibefore
Hon. Mr. Ocharo SPM delivered on 14th June, 2019in Chief Magistrates Court
Milimani Commercial Courts, Civil Case No. 10957 of 2018)
RULING
By an application dated 20th June, 2019 the appellant moved the court for an order of stay of execution relating to the auction of motor vehicle registration No. KBX 888G seized by the 2nd respondent, at the instance of the 1st respondent. Several grounds have been set out on the face of the application and there is a supporting affidavit sworn by the appellant.
The application is brought under Sections 1A,1B,3A,3,63e,75(h) of the Civil Procedure Act, Order 40 rules 1, 2 and 6 and Order 50 rule 1 of the Civil Procedure Rules.
The application is opposed and three is a replying affidavit sworn by the General Manager of the 1st respondent. The dispute between the parties has its genesis in an agreement of sale dated 20th July,2017, in which the appellant agreed to purchase the said motor vehicle from 1st respondent at an agreed price of Kshs. 3,300,000/=. The terms of payment were set out in the said agreement which were supposed to be finalized by 7th September, 2019. The appellant defaulted and therefore the motor vehicle was seized due to that default.
The parties have filed submissions which I have noted. There is no express denial that the appellant is in breach. I have perused the agreement between the parties with a view to making an informed finding that, where parties have entered into an agreement for the fulfilment of any terms and conditions, the court may not rewrite the said agreement between the parties. That finding affects the grant of the orders sought by the appellant to stay the execution or grant a mandatory injunction. In any case, a mandatory injunction may be granted where the appellant establishes a clear case of entitlement to the right sought, and where if such an order is not granted extreme prejudice shall be visited upon him. See Tom Onyango v Mimosa Investments Limited (2017) e KLR
In the present case it has been established that, it was indeed the appellant who was in breach of the terms and conditions set out in the agreement and therefore may not claim the benefit of a mandatory injunction. I have balanced the right of appeal as against the judgment in favour of the respondents herein.
I am not persuaded that the appellant is deserving of the orders sought and therefore, this application is dismissed with costs to the respondents.
Dated, signed and delivered at Nairobi this 27th Day of November, 2019.
A. MBOGHOLI MSAGHA
JUDGE