[2012] KEHC 5626 (KLR)
The court found that the interests of justice require the plaintiff to remain in possession of the motor vehicles pending the hearing and determination of his application for a temporary injunction. The restriction on the plaintiff's use of the vehicles, previously imposed due to uncertainty regarding insurance, was...
Source-derived case information.
- Citation
- [2012] KEHC 5626 (KLR)
- Parties
- Plaintiff: George Michugu Kamau; Defendant: Lilies Hostels Limited; Defendant: CFC Stanbic Bank Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 19 of 2012
- Procedural Posture
- Civil Case / Ruling on Interim Orders
- Outcome
- Interim orders granted in favour of the plaintiff, with conditions.
- Judges
- DW Mbuteti
- Legal Topics
- Interim Injunctions, Possession of Property, Hire Purchase Disputes, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Michugu Kamau
Plaintiff
Lilies Hostels Limited
Defendant
CFC Stanbic Bank Limited
Defendant
Procedural Posture
Civil Case / Ruling on Interim Orders
Legal Issues
- 1 Whether the plaintiff is entitled to continue possession and use of the motor vehicles pending determination of the suit.
- 2 Whether the restriction on use of the motor vehicles should be lifted subject to insurance coverage.
Ratio Decidendi
The court found that the interests of justice require the plaintiff to remain in possession of the motor vehicles pending the hearing and determination of his application for a temporary injunction. The restriction on the plaintiff's use of the vehicles, previously imposed due to uncertainty regarding insurance, was lifted upon confirmation that the vehicles are now comprehensively insured. The court declined to adjudicate on the substantive dispute regarding whether the payment was a purchase price or a loan at this interlocutory stage, reserving that issue for trial. The operative consideration was to preserve the status quo and prevent prejudice to either party, subject to the vehicles...
Court Disposition
Interim orders granted in favour of the plaintiff, with conditions.
Orders
- The plaintiff shall continue in possession of the two motor vehicles pending hearing and disposal of the notice of motion dated 20th January 2012.
- The restriction on driving or using the motor vehicles is removed, provided the vehicles are comprehensively insured at all times.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CIVIL CASE 19 OF 2012
GEORGE MICHUGU KAMAU……………….……..….…... PLAINITFF
VERSUS
1. LILIES HOSTELS LIMITED
2. CFC STANBIC BANK LIMITED………….....……….DEFENDANTS
RULING ON INTERIM ORDERS
1. The Plaintiff’s case in this suit is that he, in effect, purchased from the 1st Defendant the two motor vehicles the subject matter of this suit in January 2011 in the circumstances outlined in the plaint for the total sum of KShs 2,148,077/00 (which he paid), and that he took possession of the same (and still has possession) pending legal transfer of the vehicles to him.
2. Pending disposal of the suit the Plaintiff applied by notice of motion dated 20/01/2012 for appropriate temporary injunction to protect his possession of the motor vehicles. That application was on 13/03/2012 fixed for hearing on 22nd May 2012. The court also ordered, inter alia, that the motor vehicles remain in possession of the Plaintiff subject to the condition that he should not use or drive them at all pending the further order of the court, with the position to be reviewed on 28th March 2012. That restriction was informed by the fact that the Defendants’ learned counsel expressed the fear that use of the motor vehicles might expose the Defendants to suits in the event of an accident as their insurance had been withdrawn. The Plaintiff’s learned counsel was at that time not in a position to confirm if the motor vehicles were insured. By supplementary affidavit filed by the Plaintiff on 27th March 2012, it was confirmed that the motor vehicles were indeed insured.
3. On 28th March 2012 the Plaintiff’s learned counsel submitted that the Plaintiff should be allowed to continue using the motor vehicles as he has been for the last one year or so pending at least hearing and disposal of the notice of motion dated 20th January 2012. Learned counsel for the Defendants on the other hand submitted that the KShs 2 million odd that the Plaintiff had “advanced” to the 1st Defendant had already been repaid by the Plaintiff’s use of the motor vehicles for the past year or so. Obviously that is not an issue that can be properly adjudicated upon at this stage. It will be an issue at the trial of the suit.
4. The picture at present is as follows. The Plaintiff paid more than KShs 2 million to the 2nd Defendant for and on behalf of the 1st Defendant in order to save the two motor vehicles from sale by the 2nd Defendant (there was a hire-purchase agreement between the two defendants over the motor vehicles). The Plaintiff says that he thereby purchased the motor vehicles.On its part the 1st Defendant says that the money expended by the Plaintiff was a loan advanced to it upon terms that have not been disclosed.
5. Possession of the motor vehicles appears to have been given to the Plaintiff by consent upon paying to the 2nd Defendant the money owed by the 1st Defendant. He has had possession for the last one year or so.
6. I hold that the dictates of justice demand that the Plaintiff continues in possession pending hearing and disposal of the notice of motion dated 20th January 2012. The restriction that he should not drive or otherwise use the motor vehicles is hereby removed, provided that the two motor vehicles shall be comprehensively insured at all such times. It is so ordered. Costs shall be in the cause.
DATED AT NAIROBI THIS 18TH DAY OF APRIL 2012
H.P.G. WAWERU
JUDGE
DELIVERED AT NAIROBI THIS 20TH DAY OF APRIL 2012