[2005] KEHC 3094 (KLR)
The court found that the plaintiff failed to establish a prima facie case with a probability of success, as the defendant's evidence and documentation regarding the outstanding balance and the terms of the security were more credible. The court held that any loss the plaintiff might suffer from the exercise of the...
Source-derived case information.
- Citation
- [2005] KEHC 3094 (KLR)
- Parties
- Plaintiff: Fuad Mahmoud Mohamed; Defendant: Southern Credit Banking Co-op
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 33 of 2005
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Application (chamber Summons) for Injunction and Release of Logbooks
- Outcome
- application dismissed with costs; interim injunction discharged; interim stay of 7 days granted
- Legal Topics
- Loan Guarantees, Chattels Mortgage, Injunctive Relief, Repossession of Security
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fuad Mahmoud Mohamed
Plaintiff
Southern Credit Banking Co-op
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Application (chamber Summons) for Injunction and Release of Logbooks
Legal Issues
- 1 Whether the plaintiff has established a prima facie case to warrant an injunction restraining the defendant from repossessing the vehicles.
- 2 Whether the plaintiff is entitled to the release of the logbooks for the vehicles given as security under the chattels mortgage.
- 3 Whether any loss suffered by the plaintiff is compensable by damages.
Ratio Decidendi
The court found that the plaintiff failed to establish a prima facie case with a probability of success, as the defendant's evidence and documentation regarding the outstanding balance and the terms of the security were more credible. The court held that any loss the plaintiff might suffer from the exercise of the defendant's rights under the chattels mortgage would be monetary and adequately compensable by damages. Consequently, the plaintiff was not entitled to an injunction restraining the defendant from repossessing the vehicles or to the release of the logbooks. The interim injunction previously granted was discharged, and the application was dismissed with costs to the defendant.
Court Disposition
application dismissed with costs; interim injunction discharged; interim stay of 7 days granted
Orders
- The application for injunction is dismissed with costs to the defendant.
- The interim injunction previously granted is discharged.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Civil Suit 33 of 2005
FUAD MAHMOUD MOHAMED …………………….....…………………..PLAINTIFF
VERSUS
SOUTHERN CREDIT BANKING CO-OP ………………………….DEFENDANTS
R U L I N G
The dispute in this suit relates to financing Agreement whereby the Defendant agreed to advance to the Principal debtor a sum of Shs.10,000,000/- upon securities agreed upon.
By this chamber Summons the Applicant /Plaintiff who guaranteed the loan states that there is no money now outstanding. Shs.12 million have been paid.
The intended repossession of the plaintiff’s vehicles KAM 634Y, KAM 635Y AND KAM 636Y is unlawful and the logbooks for them should be released to applicant.
The vehicles were given by way of chattels mortgage.
However the defendant had also taken as security a charge on Kwale/Tiwi.2394. the said charge was discharged after full payment. The forwarding cheque was paid through M/s Maina Njaga advocates on 10/11/2004.
However the defendant says that the payment of 12 million was in part payment of the total indebtedness leaving a balance in the sum of Shs.4,781. 95 secured by plaintiffs guarantee and the joint registration of the three motor vehicles. The Principal debtor defaulted in payments whereupon the Defendant demanded immediate payment and threatened to repossess the vehicles.
Upon perusing the supporting affidavit together with annexure and the replying affidavit together with annexure thereof, it is clear that the defendant side of story is more transparent. There is indication that there is an agreement between the parties in writing. I find the applicant has not made out a prima facie case with a chance of success.
In any case any loss he could suffer by as unlawful exposure of defendant’s powers under the chattels mortgage is monetary and can be compensated in damages.
The application is dismissed with costs. The interim injunction granted is hereby discharged.
Delivered and dated at Mombasa this 13th day of October 2005.
J. KHAMINWA
J U D G E
13/10/05
Khaminwa, J
Jason – court clerk
Mr. Sangoro h.b
Mr. Maundu
Read in their presence.
Mr. Sangoro:
I am instructed by Mr. Kiarie advocate, I apply for certified copy of proceedings and Ruling.
I apply under Order 41 rule 4 (6) for temporary stay pending formal application.
Mr. Maundu:
I do not oppose the application for proceedings for stay there is not threat.
Court:
All the same interim stay for a period of 7 days from today is granted.
Proceedings should be provided on payment of copying charges.KHAMINWA, J