[2006] KEHC 2055 (KLR)
The court found that the plaintiff had admitted to being in arrears under the sale agreement and had not established a prima facie case for the grant of a temporary injunction. The court held that the orders sought were not tenable at the interlocutory stage, and that the appropriate remedy, should the plaintiff...
Source-derived case information.
- Citation
- [2006] KEHC 2055 (KLR)
- Parties
- Plaintiff: Dedan Mwangi Thuku; Defendant: Kiamuriuki Bus Services Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1345 of 2005
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed with costs
- Judges
- JL Osiemo
- Legal Topics
- Interlocutory Injunctions, Sale of Goods, Breach of Contract, Repossession of Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dedan Mwangi Thuku
Plaintiff
Kiamuriuki Bus Services Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiff is entitled to a temporary injunction restraining the defendant from using or dealing with motor vehicle KAQ 274 Z pending determination of the suit.
- 2 Whether the plaintiff has established a prima facie case for the grant of interlocutory relief.
- 3 Whether the balance of convenience favours granting the orders sought by the plaintiff.
Ratio Decidendi
The court found that the plaintiff had admitted to being in arrears under the sale agreement and had not established a prima facie case for the grant of a temporary injunction. The court held that the orders sought were not tenable at the interlocutory stage, and that the appropriate remedy, should the plaintiff succeed at trial, would be damages rather than injunctive relief. The balance of convenience did not favour the plaintiff, as he was in breach of the payment terms. Consequently, the application for a temporary injunction was dismissed with costs to the defendant.
Court Disposition
application dismissed with costs
Orders
- The application for a temporary injunction is dismissed with costs to the defendant.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 1345 of 2005
DEDAN MWANGI THUKU………………………………...........................................……………….PLAINTIFF
VERSUS
KIAMURIUKI BUS SERVICES LTD………………….............................................…………..….DEFENDANT
RULING
By Sale Agreement dated 6th December 2004 the defendant offered to sell and the plaintiff agreed to purchase motor vehicle registration No. KAQ 274 Z at a price of Shs.2,500,000/=. The plaintiff paid Shs.1,000,000/= and the motor vehicle was released to him. It was agreed further that the balance of the purchase price could be settled by monthly instalment of Shs.100,000/=. After 3 months the said motor vehicle was involved in an accident and was towed to the garage of the defendant for repair but after repair the defendant declined to release it to the plaintiff allegedly for non payment of the monthly instalment as earlier agreed. The plaintiff filed this application by chamber summons dated 8th November 2005 seeking the following orders:-
1. That the respondent his agents, servants, and/or employees be restrained by temporary injunction from using it in matatu business or in any way dealing with the motor vehicle registration No. KAQ 274 Z till further orders of this court or till the determination of this application.
2. That the motor vehicle registration No. KAQ 274 Z be immobilized and be kept at Leally Cold Storage in Industrial Area and the Plaintiff/Applicant do pay storage charges till the hearing and determination of this application.
3. That the OCS Central Police Station be ordered to enforce the orders of the Honourable court.
4. That the costs of this application be provided for by the respondent.
The application is based on the ground that the applicant bought the subject motor vehicle from the respondent; that the respondent has repossessed the subject motor vehicle, that the Sale
Agreement dated 6th December 2004 is irrevocable; that the respondent is negotiating with another buyer for sale of the subject motor vehicle, and that the respondent has used arrogant criminal and at material times shameful, degrading behaviour towards the applicant.
The application is supported by sworn affidavit in which the applicant has deponed on similar facts as those contained in the plaint.
The respondent in opposition to the application has filed a replying affidavit in which he has deponed that the applicant has breached the Sale Agreement in that he had only paid one instalment and was in arrears in the sum of Shs.200,000/- and that demand notice had been served upon the applicant.
The applicant admits that he fell into arrears which the subject motor vehicle was involved in an accident and had taken it for repair which the respondent converted it into his own use after repair.
From aforegoing, the orders sought by the applicant are not tenable at this stage. The applicant should wait until the full trial of the suit and if the suit is decided in his favour he will be entitled to damages.
The application therefore is dismissed with costs.
Dated and delivered at Nairobi this 20th day of June 2006.
J.L.A. OSIEMO
JUDGE