https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/279

Kipruto v Kirwa & another (Civil Case E1215 of 2026) [2026] KEMC 279 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KEMC 279 (KLR) Republic of Kenya In the Eldoret Law Courts Civil Case E1215 of 2026 ME Aligula, RM July 10, 2026 Between Micah Kipruto Plaintiff and Abraham Kiboor Kirwa 1st Defendant Platinum Credit Limited 2nd Defendant Ruling 1.The Plaintiff/ applicant moved this Court vide an application dated 30th April, 2026 seeking, inter alia, orders restraining the Defendants their agents’ auctioneers from selling, auctioning, transferring, disposing of or in any other manner interfering with Motor Vehicle Registration Number KBZ 813N pending the hearing and determination of this suit. The Plaintiff/applicant also sought orders for director of the National Transport and Safety Authority (NTSA) to place an immediate restriction against any dealing, transfer or encumbrances over motor vehicle registration number KBZ 813N, Orders for disclose of the location and condition of the motor vehicle and grant access for inspection and costs of the application. 2.The application is anchored on the following grounds on the face of the application and also supported by the Sworn affidavit of Micah Kipruto that he purchased the suit motor vehicle but caused the same to be registered in the name of the 1st Defendant, who was allegedly acting as his agent and trustee. The Plaintiff contends that despite holding the motor vehicle in trust, the 1st Defendant unlawfully charged it to the 2nd Defendant to secure a loan without his authority or consent. He further avers that the 2nd Defendant repossessed the motor vehicle and has threatened to dispose of it to his detriment. Through his supporting affidavit, as evidenced by the sale agreement marked as MK-1 deposes that on 25th August, 2025 he purchased the subject vehicle registration number KBZ 813N (FRR Lorry) at a consideration of ksh 2,180,000/- through the 1st defendant who is his uncle. That due to his absence in the country the 1st defendant acted as his agent and trustee in the transaction. 3.The deponent further avers that he financed the purchase through Mpesa transfers and related payments sent to the 1st defendant and his other siblings as captured in the agreement and annexed the M-pesa receipts as MK- 2. He further deponed that the motor vehicle was registered in the names of the 1st defendant on his behalf and annexed a copy of the logbook as MK 3. Further, that the 1st defendant went ahead to charge the said vehicle and obtained a loan of ksh 300,000/- on or about the 16th February, 2026, defaulted and the 2nd defendant impounded the said vehicle. The deponent averred that the vehicle is his primary investment and source of livelihood for him and his siblings and unless the defendants are restrained, he stands to suffer irreparable loss not compensated by damages. 4.The application is opposed. In the replying affidavit sworn by Abraham Koboor Kirwa, 1st respondent, on 16th June, 2026, he deposes that it is not true that the applicant bought the vehicle, on the contrary he bought the truck registration number KBZ 813N as evidenced by the sale agreement. He further deponed that there is no any trust deed and or agency agreement drawn and / or registered in favour of the applicant either in Kenya or a country of his choice. He further confirms that the motor truck is registered in his names and he did not enter in any agreement with the applicant and or any other in respect of the management of the said motor vehicle. The 1st respondent deponed that he borrowed a loan from the 2nd respondent and having fulfilled their condition he was advanced the money and began servicing. That he had challenges with the 2nd respondent the consequences of which have resulted to common differences associated with business but he has fallen back on the periodic payments made and committed to offset the loan and redeem his asset back and further that the plaintiff is a stranger and should not be bothered. He prayed to have the application dismissed with costs. 5.The 2nd respondent filed his grounds of opposition dated 12th May, 2026 and replying affidavit sworn by Rose Ogano on 29th May, 2026 stated that there is no privy of contract since the applicant was not a party to the loan agreement between the registered borrower and the 2nd respondent in respect to the subject motor vehicle registration number KBZ 813N. That further, the applicant has no locus standi to bring, maintain or seek any relief arising from or in connection with the said loan transaction. She deponed that the applicant has not tendered any evidence to confirm that he is indeed the owner of the vehicle in question, and that the same is registered in the names of the 1st respondent, and the applicant cannot assert any right as against the 2nd respondent who is a secured lender whose right rank in priority. The 2nd respondent further deponed that the borrower having defaulted in paying the loan, releasing the vehicle to the applicant who is not even the owner could expose the security to waste away at the detriment of the 2nd respondent who is owed by the 1st respondent. She prayed that the application lacks merit, is a delay tactic, frivolous and the same amount to an abuse of the process of this court. 6.Application was canvassed by way of written submissions with only the applicant and the 2nd respondent filing their respective submissions. The court has looked at the application, replying affidavits, grounds of opposition and the submissions and consider only one issue for determination; Whether the application is meritorious? 7.Whether the applicant has satisfied the tripartite judicial test for grant of temporary injunction as established in Giella -vs- Cassman Brown & Co. Ltd [1973] EA 358 which are:a.The applicant must establish a prima facie case.b.The applicant must demonstrate that he stands to suffer irreparable loss which would not adequately be compensated by an award of damages.c.If in doubt, the Court will determine the application on a balance of convenience. 8.A prima facie case, as was held in the case of Mrao Ltd -V- First American Bank Of Kenya 2003 KLR 125. “... is a case which on the material presented to the Court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the letter. 9.On the issue of prima facie case, the applicant claims that he is the owner of the vehicle registration number KBZ 813N having purchased the same and caused it to be registered in the names of the 1st respondent who was acting as his agent and trustee. He further produced the payment receipts made by him to his siblings to facilitate the same a position which is disputed by the 1st respondent. A look at the sale agreement dated 25th August 2025 the applicant doesn’t feature anywhere. there is no even a clause stating that the purchaser is acting as an agent, trustee and/or on behalf of the applicant, the payment receipts also do not poof any connection between the applicant and the 1st respondent. The log book is also registered in the names of the 1st respondent and a charge in favour of the 2nd respondent. I fail to find any connection between the applicant and the 2nd respondent since the loan agreement herein was between the 1st and 2nd respondent and as per the documents availed the owner of the vehicle is the 1st respondent. I do not agree with the applicant’s submissions that the foundation of the plaintiff's case is a clear and legally cognisable trust, he who alleges must proof and the applicant has failed to satisfy this requirement in law. I find that the plaintiff has not shown a prima facie case with a probability of success. 10.On the issue of irreparable loss, In Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] KEELC 2424 (KLR), the court explained the concept of irreparable harm as follows: - “Irreparable injury means that the injury must be one that cannot be adequately compensated for in damages and that the existence of a prima facie case is not itself sufficient. The applicant should further show that irreparable injury will occur to him if the injunction is not granted and there is no other remedy open to him by which he will protect himself from the consequences of the apprehended injury. The defendant has been collecting rent since the year 2005 and therefore the issue of irreparable harm if injunction is not granted should not arise so long as the matter is fast-tracked for hearing.” 11.The applicant submits that he would suffer loss or damages that cannot be adequately be compensated by a ward of damages. That the 2nd respondent is actively threatening and / or proceeding to auction the vehicle and once the same has been auctioned the applicant's right to recover the same will be extinguished as such no monetary award after can restore the specific property since he indicates it’s his and the siblings’ primary source of investment. The 2nd respondent submitted that the vehicle repossessed was used as collateral for the loan advanced. Further, it is not owned by the applicant herein, and thus, he cannot suffer any injury for loss of that which does not belong to him. Further, the vehicle has an ascertainable value, and in case it is sold, it is obvious that monetary compensation will be an adequate compensation (if the vehicle indeed belonged to him). That The Respondent indeed is a reputable financial institution and is therefore capable of paying the monetary compensation if any. I have not been persuaded enough by the evidence before court that and award of damage will not be sufficient compensation to the applicant since the documents before court show that the loan agreement was executed between the 1st and 2nd respondent which the 1st respondent admits and the vehicle registered in his name was used as collateral. He admits to having challenges in payment of the loan and the 2nd respondent is herein exercising its right over the vehicle so rightfully registered in the names of the borrower. 12.Further the 1st respondent deponed that he only borrowed a loan from the applicant and there was no any other transaction on the management of the vehicle and i surely have no reason to believe otherwise if no other evidence has been placed before this court. I therefore associate myself with the 2nd respondent’s submissions under this head and the cited case of East African Development Bank v Hyundai Motors Kenya Limited [2006] eKLR. This court is not persuaded that the applicant stands to suffer any irreparable harm, as he has failed to demonstrate his apprehension and whether damages will not be sufficient compensation. 13.As to the balance of convenience, before me is a sale agreement between Sera Nduta Gathige and Abraham Kiboor Kirwa, copy of search in the names of the 1st respondent and a charge against the 2nd respondent, loan agreement, photos of the vehicle, loan settlement statement, and payment receipt from the applicant to persons not party to this suit. There is no any nexus between the applicant and the respondents in respect to the subject motor vehicle. I have to consider amongst the parties herein which party have a stronger case on the merit and on whether there is irreparable harm, if I decide the motion in a particular manner, which in my view may influence the balance in favour of granting or rejecting to grant the injunction. The evidence produced by the applicant is not sufficient to grant the orders in his favour. As such, the applicant application is not meritorious and the same is dismissed with costs. 14.Mention for compliance with order 1 1 of the CPR on 12/8/2026. SIGNED, DATED AND DELIVERED IN ELDORET ON THIS 10TH DAY OF JULY, 2026.MILLIAN E. ALIGULA - RESIDENT MAGISTRATEIn the presence of: C/A LepatoiyeApplicant: Mr Kipruto1st Respondent: Mr. Bittok2nd Respondent: Mr Ochieng