https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9434

Crisco Enterprises Ltd v Gulf African Bank Ltd (Civil Case E182 of 2025) [2026] KEHC 9434 (KLR) (Civ) (25 June 2026) (Ruling) Neutral citation: [2026] KEHC 9434 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Case E182 of 2025 JN Mulwa, J June 25, 2026 Between Crisco Enterprises Limited Plaintiff and Gulf African Bank Limited Defendant Ruling 1.Before the court is an application dated 14/07/2025 by Crisco Enterprises Limited (hereinafter the plaintiff), seeking orders that:- 1.Spent 2.The court be pleased to issue a temporary order of injunction against the Respondent by itself or its agents restraining them from attaching, selling, disposing, transferring and/or dealing with the said motor vehicles registration KDR 044R, KDR 125R, KDR 408R ZH 5110, ZH5108, ZH5109 pending hearing and determination of this application inter partes. 3.That the Respondent, its agents and employees be restrained from harassing the Applicant or interfering with his family, suppliers, business partners and/or workplace pending hearing and determination of the application 4.Similar to 2 above. 5.Similar to 2 and 3 above. 2.The application is premised on grounds found at its face and supported by an affidavit sworn by Bilal Bashir Hassan describing himself as the Managing Director of the Applicant dated 14/07/2025 and a further affidavit he swore on 16/01/2026. 3.The Applicant’s affidavit material is that it has a debt with the Respondent but that it is not due (as at time of filing the suit and application) that it has been making payments but its agents have been threatening and harassing his family, and to dispose of the vehicles mentioned without due process by the notices, 4.That as a consequence, it has come to court for restraining orders urging that if not granted, the Applicant would suffer irreparable loss and harm should the vehicles be attached and sold thus seeks orders of status quo pending determination of the application. 5.The application is opposed via the firm of Mwiru Mungai & Co. Advocates for the Defendant, by a Replying affidavit sworn by Lawi Sato the Defendants Senior Legal Officer on 28/07/2025. Its affidavit case is that there is another suit filed by the Applicant in Milimani CCC No. E3340 of 2025- attached copy and marked as LS-1; by a Plaint and Notice of Motion dated 15/05/2025. 6.That on 3/07/2025, the suit was struck out for lack of pecuniary jurisdiction, but despite the ruling, it has filed a similar suit in this Civil Division of the High Court instead at the Commercial Division of the court wherein it has maintained non-service of statutory notices. 7.The deponent posits that it issued a statutory notice to the Applicant, after breaching conditions of the loan letter of offer, supplied and marked – LS – 5; that the statutory notice issued was received by the Applicant, hereto supplied as Ls -7, and therefore shows default by the Applicant. ]That as a result, the Respondent is entitled to recover the loan arrears by attachment and sale of the stated vehicles as no evidence of payments at all as stated in its supporting affidavit hence not deserving of the orders it seeks. 8.In rebuttal to the Respondent's affidavit material, the Applicant by its Managing Director filed its Further Affidavit dated 16/01/2025 wherein he posits that all the Defendant’s averments in its replying affidavit are misconceived, that no valid statutory notices were ever issued prior to the threat to sale its vehicles, and reiterating that the loan loan is not in arrears and therefore the threats to realize its rights cannot sustain without clear loan statements. 9.He concludes by positing that the said vehicles are its primary tools of trade and their loss would cause irreparable loss to the Defendant that cannot be compensated by an award of damages. Applicant’s submissions 10.The Applicant flagged two issues it deemed necessary for court’s determination thus- whether the Applicant has established a prima facie case; and whether the Respondent’s conduct amounts to harassment and breach of privacy.Citing cases of Giella v. Cassman Brown & Co. Ltd (1973) EA 358 and Nguruman Limited v. Jan Bonde Nielsen & 2 Others [2014] eKLR, the Applicant submitted that it has satisfied the criteria for grant of temporary injunction as defined in Mrao Ltd v. First American Bank of Kenya Ltd & 2 Others [2003] eKLR citing lack of statutory notices and demand notice. 11.It further submits that failure to issue the statutory notices renders any subsequent enforcement measures a nullity and void, yet no arrears has been demonstrated, no reconciliation accounts exhibited and therefore the threatened attachment of the vehicles is premature. 12.Additionally, the Applicant avers that the impugned vehicles are the backbone of its business operations and source of income that attachment would paralyze the contractual relationship between the parties, therefore the balance of convenience tilts in its favour. Respondent’s submissions 13.On its behalf the Respondent filed submissions dated 2/03/2026. It flagged issues;-a.Whether the applicant has demonstrated a prima facie case with probability of success.b.Whether the Applicant will suffer irritable harm in absence of a temporary order of injunction.c.In whose favour does the balance of convenience tilt? 14.The Respondent submits with finality that the Applicant has failed to meet the threshold for grant of the orders it seeks and seeks for dismissal of the application. 15.On 16/10/2025 this court granted to the Applicant a temporary order of injunction in terms of prayer 2 of the application. Parties thereafter intimated to the court that they were engaging in an out of court settlement of the dispute, which the court granted them time to explore. However on 15/07/2015 during proceedings, Advocate for the Respondent submitted that the arrears of the loan granted to the Applicant was in arrears of well over Kshs. 4 million and the necessary statutory notices were duly issued under Section 61 of the movable Security Realization Act Cap 499A see at page 99, sent by email and the Applicant does not deny that the email bilalbashir486@gmail.com does not belong to itself/director. 16.Additionally, citing decision in National Bank of Kenya Limited v. Shimmers Plaza Limited [2009] KECA 250 (KLR) he submitted that default in serving a valid notice only does not lead to an injunction until such time as the notice is served. 17.As to irreparable injury in absence of an injunction, it is submitted that what is at issue here is recovery and sale of three motor vehicles (stated in the body of the application) whose valuation is placed at Kshs. 35,100,000 as at October 2024, and therefore the Applicant has failed to meet the 3 requirements in the Giella Casman case, by failing to t demonstrate compliance with the loan payment schedules as stated at the letter of offer; that no repayment of the loan as agreed has been demonstrated, and therefore no prima facie case has been established. 18.It is further submitted that by its admissions in conversations via WhatApp [pg. 89 – 96 of the replying affidavit] the Applicant has acknowledged its default and requested for time to regularize the default, that the said default is seen in the court proceedings and orders, specifically on 29/07/2026 when a conditional injunction was issued subject to its payment of April – July 2025 instalments that it failed to comply with leading to a discharge of the temporary injunction order, that no temporary injunction order is in force to date citing the case of Exon Investments Limited v. SBM Bank Kenya Limited & Another [2025] KEHC 16744 (KLR) submitting that there is no likelihood of irreparable injury to the Applicant as the same could be compensable in damages.The court has been urged to dismiss the application with costs. Analysis and Determination 19.On 29/07/2025, this court by way of a conditional temporary order of injunction was issued in favour of the Applicant by the court subject to the Applicant paying to the Respondent the agreed installments for the months of April to July 2025. It did not comply. On 29/09/2025, the temporary Injunction orders were discharged.That said, the court has considered the parties pleadings, affidavit material and rival submissions and postulates issues for determination as concerns-1).Whether the Applicant meets the threshold for grant of temporary injunction orders.2).Who shall bears costs of the application? Whether the Applicant meets the threshold for grant of temporary injunction orders 20.The Respondent/Defendant availed to the court a letter of offer of the loan to the Applicant dated 3/10/2025 marked as LS – 5.A perusal of the letter of offer shows that by clause 8 shows that the Applicant was required to solely bank with the Defendant Bank, and receivables from Darford Industries and International Sustainable Development Agency would be channeled to the defendant. 21.That the Applicant breached both conditions, which breach the Defendant was notified by letter dated 23/01/2025 – letter marked LS-4. Additionally the Applicant was required to pay the loan in monthly installments but immediately thereafter, there was default, acknowledged by its director in WhatsApp correspondence annexed and marked LS – 5. 22.Further, the Defendant/Respondent states to have issued Statutory Notices of the default dated 20/02/2025 and marked LS-6. I have perused the above documents that the Applicant deliberately withheld from the court when it filed the instant application under a certificate of urgency. 23.What I garner therefrom is that the impugned vehicles were used as collateral to the loan which material fact the Applicant admits and duly valued through Regent Automobile Valuers and Assessors Ltd. 24.On the WhatsApp conversations that have been evinced by the Respondent’s Managing Director, it seems that the Applicant’s – MD acknowledged the arrears of the loan stating that he (MD) was waiting for payments from Darfords in the tune of Kshs. 12 M among others and sought a meeting to discuss, but which request was not honoured by the same MD. 25.I have also considered the statutory demand notification over the 4 motor vehicles dated 20/02/2025 – LS 6. It is addressed to the Directors, Crisco Enterprises Ltd, and an advance copy sent via email (with the other by Registered Post).It is captioned as demand under Section 67 (1) of the Movable Property Security Rights Act. Particulars of the nature and extent of the default pursuant to Section 67(2) thereof is stated; as at 20/02/2025, in the sum of Kshs. 24,144,917.78 captioned as default contrary to Clause 2 and 5.1.1 of the Security Agreement. 26.The Applicant by the said statutory notice and demand notice were required to rectify the default by payment of Kshs. 24,144,917.78 as principal and profit and Kshs. 2,971.93 as default damages as at 20/02/2025 together with fees and expenses.By the foregoing, it is evident that the Respondent did issue the necessary statutory notice to the Applicant, as well as engaging it with a view to finding an amicable settlement but which the Applicant did not honour or comply with. 27.I have further perused the letter of offer dated 3/10/2024 provided by the Respondent – annexure LS-4. Therein, the Applicant was required to repay the loan in monthly installments of Kshs. 707.669.01. The Respondent states that the last instalment the Applicant paid was Kshs. 650,000/= on 3/04/2025, and no evidence of payment by the Applicant the agreed instalment of Kshs. 707,669.01 at any time. If done, the Applicant has not evinced the same. 28.I have taken the liberty to read the correspondence exchanged. What I garner is that payments of the loan were made as follows, as extracted from the Applicants annexure – BBH-3 being Mpesa payments thus-1)Kshs. 650,000/= on 3/04/20252)Kshs. 215,000/= on 21/01/20253)Kshs. 9,900,000/= on 4/02/20254)Kshs. 5,250/= on 2/03/20255)Kshs. 250,000/= on 11/12/20256)Kshs. 350,000/= on 14/12/20257)Kshs. 37,000/= on 14/12/2025. 29.The burden of proof of payments by the Applicant of the loan as per the Loan agreement falls on it to discharge. The Evidence Act, Section 107-109; provides that “he who asserts must prove” as trite principle of law. 30.In this respect there is no dispute as to whether the lender (Respondent) has discharged its burden that indeed it advanced the loan amount to the Applicant as it duly at its plaint paragraphs 4-6, and in its supporting affidavit. In the case of Gabriel Nzioki Mutinda v. James Kalovia Ngeme[2026] KEHC 7813[KLR] the court held that whoever desires a court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. 31.Section 108 thereof provides that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side and that burden of proof is on a balance of probability. In the case of Gichigia Kibutha v. Caroline Nduku [2018] eKLR, the court emphasized that:“it is not automatic that in instances where the evidence is not controverted, the claimants' claim shall have his way in court. He must discharge the burden of proof. He must proof his case however much the opponent as not made a presence in the contest” 32.With the above in reserve, has the Applicant demonstrated a prima facie case? In Mrao Ltd. V. First American Bank of Kenya & 2 Others [2003] KLR 123, the Court of Appeal rendered thus:-“a prima facie case in a Civil Application includes, but not confined to a genuine and arguable case. It is a case which on material presented to the court, a tribunal property directing itself will conclude there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.” 33.Additionally, the Court of Appeal in Nation Media group & 2 others. V. John Harun Mwau [2014] eKLR held that“It is trite law that for an interlocutory injunction to be issued, an applicant must demonstrate existence of special circumstances…. On a different standard higher than that in prohibitory injunction is granted. Besides existence of exceptional and special circumstances must be demonstrated…. A temporary injunction can only be granted in exceptional end in the clearest of cases”. 34.A cursory perusal of the Applicant’s affidavit material shows no special, genuine or arguable case. If anything, it is the Respondent rights under the contract executed between the parties that has been violated as clearly elucidated in the Mrao case and the Nation Group Media Cases (supra). 35.To that end therefore, the court is persuaded and convinced that the Applicant has failed to meet any of the conditions for grant of a temporary injunction order. Indeed no demonstration of a prima facie case with a possibility of success has been put forth. Irreparable loss or harm? 36.Whereas the Applicant submits that should the interlocutory injunction be not granted it will suffer irreparable loss, it has failed to convince the court of the loss that cannot be compensated by an award of damages. To the contrary, the Respondent, whose loan arrears is in the region of Kshs. 24 Million remains unpaid, yet the Applicant continues to use for business the collateral vehicles for profit, without regard to what loss the Respondent continues to suffer. 37.The drama played before the court by the Applicant including filing multiple cases in the different courts is nothing but forum shopping. In the court's opinion, it is a deliberate well-intentioned violation of the Respondent’s rights as stated at Movable Property Security Right Act; Section 67 thereof, the loan remains substantially unpaid. 38.The continued loss by the Respondent for lack of repayment and or clear attempts and or plan to repay the loan by the Applicant, is evident that without attachment and sale of the Impugned vehicles, it may never recover the loan the interest thereon and other costs to its detriment. 39.On balance of convenience, I need not belabour on this as the facts speak for themselves. The court in the case of Chomba v. Karanja [2022] KEHC 11172 (KLR) Kenya Breweries Ltd. v. Washington Okeyo [2002] eKLR in dismissing an application for interlocutory injunction held that in the absence of special circumstances, and clear cases which could be easily remedied an order of temporary injunction ought not be granted. Final disposition 40.In the end, the court is not satisfied and or persuaded that the Applicant by its application dated 14/07/2025 is deserving of the reliefs it seeks. It is dismissed with costs to the Respondent, Gulf African bank Limited. Orders accordingly. DELIVERED DATED AND SIGNED AT NAIROBI THIS 25TH DAY OF JUNE 2026.……………………….JANET MULWA.JUDGE