[2012] KEHC 3847 (KLR)
The court found that, based on the affidavits and pleadings, it was not possible to conclusively determine which party had the superior proprietary interest in the motor vehicle at the interlocutory stage. The court noted inconsistencies and lack of full disclosure from both parties. Given the uncertainty and the...
Source-derived case information.
- Citation
- [2012] KEHC 3847 (KLR)
- Parties
- Plaintiff: Jidraff Gathura; Defendant: Peter Mathenge Muthima; Defendant: Jeff Kiama
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 123 of 2012
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- Status quo to be maintained; suit to be set down for hearing; no order as to costs.
- Judges
- DO Ogembo
- Legal Topics
- Interlocutory Injunctions, Proprietary Interest, Motor Vehicle Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jidraff Gathura
Plaintiff
Peter Mathenge Muthima
Defendant
Jeff Kiama
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiff is entitled to an interlocutory injunction restraining the defendants from dealing with motor vehicle KBN 401N pending determination of the suit.
- 2 Whether the plaintiff has established a prima facie case with a probability of success regarding proprietary interest in the motor vehicle.
Ratio Decidendi
The court found that, based on the affidavits and pleadings, it was not possible to conclusively determine which party had the superior proprietary interest in the motor vehicle at the interlocutory stage. The court noted inconsistencies and lack of full disclosure from both parties. Given the uncertainty and the fact that both parties have legitimate interests in the vehicle, the court determined that the appropriate course was to maintain the status quo pending a full trial. The court declined to grant or reject the injunction sought and directed that the suit be set down for hearing to resolve the substantive issues.
Court Disposition
Status quo to be maintained; suit to be set down for hearing; no order as to costs.
Orders
- The status quo of the suit property (motor vehicle KBN 401N) to be maintained pending hearing and determination of the suit.
- The suit to be immediately listed for hearing.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT NAIROBI
MILIMANI LAW COURTS
Civil Case 123 of 2012
JIDRAFF GATHURA :::::::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF/APPLICANT
- VERSUS -
PETER MATHENGE MUTHIMA:::::::::::::::::::1ST DEFENDANT/RESPONDENT
JEFF KIAMA::::::::::::::::::::::::::::::::::::::::::::::::::2ND DEFENDANT/ RESPONDENT
R U L I N G
By a Notice of Motion dated 27th February 2012 the Plaintiff seeks orders of this court in the nature of injunction directed against the Defendants or their agents restraining them from alienating, transferring ownership or selling or in any other manner whatsoever dealing with motor vehicle registration number KBN 401N so as to defeat the Plaintiff’s proprietary interests in the said motor vehicle. The application is supported by the affidavit of the Plaintiff dated 27th February 2012 with its annextures and is based on the grounds stated in the application.
The application is opposed by affidavit of Peter Mathenge Muthima, the 1st Defendant, dated 2nd March 2012 with its annextures.
The brief history of the application as I conceive it from the pleadings, is that the Plaintiff and the 1st Defendant were friends and entered into an arrangement where the Defendant purchased motor vehicle KBN 401N through a Hire Purchase Agreement with CFC Stanbic Bank who became a co-owner with the 1st Defendant. The Plaintiff became involved in the matter when he either agreed to meet some financial obligations of the 1st Defendant for example when he allegedly paid Kshs.350,000/= to Frames Fabricators, or when he agreed to use the said motor vehicle and contribute to the loan repayment as shown in the annextures of the accounts.
On his part the Plaintiff alleges that he purchased the said motor vehicle and is solely repaying the loan. The appearance of the 1st Defendant’s name in the log book is simply because the Plaintiff used the 1st Defendant’s good reputation with the Financier to access the loan in the names of the 1st Defendant.
The 1st Defendant’s story however, is that he purchased the said motor vehicle and gave it to the Plaintiff to carry out business with it and to repay the loan. The Plaintiff has not done the same and the bank has twice demanded for the repayment.
It is not clear to me from the pleadings whom to believe. What is however, clear to me is that the Plaintiff is not telling this court the whole truth. However, more amazing to me is why both the Plaintiff and the 1st Defendant, who both have legitimate interest in the said motor vehicle, should want it to remain idle instead of it being used to bring in money to repay the loan.
On 13th March 2012 parties entered into a consent whereby by the said motor vehicle KBN 401N was to be delivered by the Defendants to Mt. Kenya Garage for safe keeping pending the inter-partes hearing of the application. The application has now been heard inter-partes. I believe one or both of the parties are misleading this court. On the basis of the affidavits sworn in this matter this court is not in a position to grant or reject the prayers sought. I rule and direct that the status quo of the suit property be maintained and the suit immediately be listed for hearing so that all the issues can be openly determined in a trial.
I make no orders as to costs.
It is so ordered.
DATED, READ AND DELIVERED AT NAIROBI
THIS 6TH DAY OF JUNE 2012.
E. K. O. OGOLA
JUDGE
PRESENT:
N/A/for the Plaintiff
A. S. Masika for the Defendants
Teresia – Court clerk