[2001] KEHC 791 (KLR)
The court found that the hire purchase agreement in question did not fall under the Hire Purchase Act because the amount exceeded the statutory limit, rendering the Act's protections inapplicable. The applicant admitted to owing a substantial debt, and the respondent was entitled to realise the security (the...
Source-derived case information.
- Citation
- [2001] KEHC 791 (KLR)
- Parties
- Plaintiff: Eunice Nyakiumba Waweru; Defendant: National Industrial Credit Bank Ltd.
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1481 of 2001
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Application
- Outcome
- application dismissed with costs to the respondent
- Judges
- CA Otieno
- Legal Topics
- Injunctive Relief, Hire Purchase Agreements, Mandatory Injunctions, Contract Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eunice Nyakiumba Waweru
Plaintiff
National Industrial Credit Bank Ltd.
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the hire purchase agreement falls under the Hire Purchase Act and its protections apply.
- 2 Whether the applicant is entitled to a mandatory injunction for release of the motor vehicle.
- 3 Whether the court can order the respondent to accept repayment terms different from the contract.
Ratio Decidendi
The court found that the hire purchase agreement in question did not fall under the Hire Purchase Act because the amount exceeded the statutory limit, rendering the Act's protections inapplicable. The applicant admitted to owing a substantial debt, and the respondent was entitled to realise the security (the vehicle) as per the agreement. The request for a mandatory injunction to release the vehicle was not supported by incontrovertible evidence or a clear right, as required for such relief. Furthermore, the court held that it could not order the respondent to accept repayment terms different from those agreed upon by the parties, as this would amount to rewriting the contract, which is...
Court Disposition
application dismissed with costs to the respondent
Orders
- The application is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OFK ENYA AT NAIROBI MILIMANI COMMERCIAL COURTS CIVIL SUIT O. 1481 OF 2001
EUNICE NYAKIUMBA WAWERU ……………………. PLAINTIFF VERSUS NATIONAL INDUSTRIAL CREDIT BANK LTD. ……………………………………………. DEFENDANT
R U L I N G
This application dated 26th September 2001 and brought into the court under Order 39 Rules 1, 2 & 9 of the Civil Procedure Rules and Section 3 and 3A of the Civil Procedure Act cannot succeed. The following are the reasons why I say it cannot succeed.
First this hire purchase agreement does not fall under the Hire Purchase Act as the amount, the subject matter of this suit was K.shs 2. 5 million. That in effect means that the requirement in the Hire Purchase Act to the effect that repossession cannot proceed if 2/3 of the hire purchase price has been paid is not applicable to this case. Secondly, the Applicant says that the Respondent is fully secured. The Respondent is not seeking to sell the land given as security and there is no prayer seeking to stop the sale of the same land, NGONG/NGONG/18944. Even if the same was to be sold one would still need to consider the approprietness or otherwise of such sale depending on whether the Respondent will have taken all such steps as is required in such cases. I say so because the Applicant also admits that she is still indebted to the Respondent to the tune of K.shs 1,927,425/- and there are no reasons why the Respondent cannot get hold of the easiest security to realise namely the vehicle.
Thirdly prayer for release of motor vehicle to the Applicant is a prayer for a mandatory injunction which can only be granted in very clear cases only – in cases which are incontrovertible and cases where the court feels that at the end when the case comes up for hearing it will most likely be found that the court was right in granting mandatory injunction. Here, the debt is clearly owing and that is not denied. The vehicle was one of the securities and the Respondent wants to realise it. What is plain and incontrovertible in this case as far as the Applicant is concerned? None, if anything the Applicant in seeking to retain the vehicle while the debt is not paid is being unfair to the extreme.
Fourthly to ask the court to order the Respondent to accept any amount other than what was agreed between the parties in repayment of the loan is to ask the court to rewrite the contract for the parties. That is not court’s duty and no court can engage in such an act even on the use of its inherent powers unless the contract was an illegal contract.
For the above reasons, this application cannot succeed. It is dismissed with costs to the Respondent. Orders accordingly.
Dated at Nairobi this 24th day of October 2001.
ONYANGO OTIENO
JUDGE