[2000] KEHC 403 (KLR)
The court found that the plaintiff failed to establish a prima facie case with a probability of success as required for the grant of an interlocutory injunction. The defendant produced a statement of account showing arrears, which the plaintiff did not effectively challenge with credible evidence. The court held...
Source-derived case information.
- Citation
- [2000] KEHC 403 (KLR)
- Parties
- Plaintiff: John Njoroge Warui; Defendant: Universal Bank Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 583 of ??
- Procedural Posture
- Civil Case / Interlocutory Application for Injunction
- Outcome
- application dismissed with costs
- Legal Topics
- Hire Purchase Agreements, Injunctive Relief, Bankers Books Evidence, Interest Calculation Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Njoroge Warui
Plaintiff
Universal Bank Ltd
Defendant
Procedural Posture
Civil Case / Interlocutory Application for Injunction
Legal Issues
- 1 Whether the plaintiff has established a prima facie case to warrant the grant of an interlocutory injunction restraining repossession of the motor vehicle.
- 2 Whether the defendant's computation of sums due under the hire purchase agreement was erroneous or based on excessive interest charges.
- 3 Whether the absence of a notice of default invalidates the defendant's right to repossess the vehicle.
Ratio Decidendi
The court found that the plaintiff failed to establish a prima facie case with a probability of success as required for the grant of an interlocutory injunction. The defendant produced a statement of account showing arrears, which the plaintiff did not effectively challenge with credible evidence. The court held that, under Section 176 of the Evidence Act, bank statements are prima facie evidence of the matters recorded therein, and the plaintiff's layman assertions were insufficient to rebut this presumption. Furthermore, the hire purchase agreement expressly entitled the defendant to repossess the vehicle upon default, and the plaintiff did not provide evidence of compliance with...
Court Disposition
application dismissed with costs
Orders
- The application for injunction is dismissed with costs to the defendant.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
John Njoroge Warui v Universal Bank Ltd
High Court of Kenya at Nairobi August 7, 2000
Milimani Commercial Courts
T Mbaluto, Judge
Civil Case No 583 of 2000
This is an application for an injunction under Order 39 rule 1, 2 and 3 and to restrain the defendant from repossessing or taking possession of motor vehicle registration number KAC 031J until the suit filed by the plaintiff/applicant against the defendant/respondent is heard and determined. The application is supported by an affidavit sworn by applicant John Warui.
The suit between the two parties arises from a Hire Purchase Agreement entered into by them on October 8, 1997.
The only complaints which are contained in the plaint and on which the application is based are that the defendant’s computation of the sum due is wrong in that it is based on wrong figures and excessive interest charges and that no notice of default was served.
Clause 4 of the hire purchase agreement provides that the defendant/respondent can terminate the hiring and take possession of the motor vehicle the subject of the agreement if the applicant failed to pay any of the hire instalments or any part thereof. In the affidavit in reply to the application, it is deponed that as at April 27, 2000 the applicant was in arrears of Kshs 1,896,075. A statement of account is annexed to the affidavit in verification of what the deponent states. The applicant has not effectively challenged that evidence.
With regard to the complaint that excessive or wrongful interest was charged, I think it should be noted that the applicant does not claim to be a qualified accountant or auditor. Accordingly, what he claims to be outstanding in accordance with his calculations must be treated as the product of an assessment by a layman. Section 176 of the Evidence Act provides:-
“Subject to this Chapter a copy of any entry in a banker’s book shall in all legal proceedings be received as prima facie evidence of such entry, and of the matters transaction and accounts therein recorded.”
To rebut the presumption created by the section, the applicant must tender evidence from a qualified accountant or auditor to show that the statements produced by the bank are incorrect. The applicant’s bare assertions to that effect will not do.
For the reasons given above, I am not satisfied that the plaintiff has established a prima facie case with a probability of success and accordingly his application must fail. The application is dismissed with costs.