[2017] KEHC 2349 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL SUIT NO. 75 OF 2017

MARY A. SIDANDI RAINWATER ............................................. PLAINTIFF

-V E R S U S –

CO-OPERATIVE BANK OF KENYA LIMITED .................1ST DEFENDANT

VINTAGE AUCTIONEERS................................................ 2ND DEFENDANT

RULING

1. Mary A. Sidandi Rainwater the plaintiff/applicant herein took out the notice of motion dated 24th March 2017 in which she sought for the following orders:

1. That the applicant is the lawful owner of the motor vehicle Mazda Demio Registration no. KBN 813U a car for the disabled. Which car was reposed by the 1st defendant on 3/3/2017 for some arrears kshs.222,500/= accruing when applicant became ill.

2. That on 3/3/2017 the 2nd defendant came very early at 7. 30am and asked if I knew the 1st defendant and that they were sent to pick the car which they took without notice or any proclamation.

3. That the 2nd defendant informed the plaintiff of any notice or proclamation whatsoever to enable the applicant try expeditiously to salvage her disability car Mazda Demio KBN 813U which is a necessity and not a luxury car.

4. That the applicant had been servicing her loan which she took sometime in 2014 save that she had been sickly with arthritis and had her left finer operated upon making her hand disabled and she was registered and declared as a person with a permanent disability in 2010 post traumatic arthritics, carpal, tunnel syndrome for the writs making her unable to move with reduced range of movement and left her with a physical disability.

5. That it is a car designed for a person with disability to held her in her movement because she is declared unable to move.

2. The application is supported by the affidavit of Mary Sidandi Rainwater. When served, the respondent filed a replying affidavit to oppose the motion. I have considered the grounds stated on the face of the motion and the facts deponed in the supporting and the replying affidavits.

3. The applicant avers that she is the owner of the disability car registration no. KBN 813U Mazda Demio, which is a means of necessity to her, which the respondents confiscated without any notice or proclamation. The appellant is undergoing untold suffering, irreparable loss and damage without her car which facilitates her movements as she is permanently disabled. The confiscated car facilitates her movements and she is unable to work and earn a livelihood. The applicant also avers say that the respondents intend to sell the disability car and this will cause her irreparable loss and damage.

4. The applicant further states to explain why her car was confiscated. That sometime in 2014, the applicant took a 4th loan from Co-operative Bank. It is said she used to take and service her loans and get another after clearing the previous one. She was diagonised and confirmed to be having a permanent disability of post traumatic arthritis, carpal tunnel syndrome with reduced range of movements and was registered as a person with permanent disability on 9/4/2010. After taking the said loan, the applicant again in 2015 suffered another serious problem of supurative tenosynovitis, which worsened her already existing condition keeping her in and out of hospital. This made her unable to service her loan fully with the Co-operative bank. The applicant informed the bank in person about her condition for the Bank’s humble consideration in servicing her loan with them. The applicant states she had paid more than half of the loan but the debt accrued when she was taken ill in 2015 and was unable to work to earn some income. The plaintiff/applicant aver that Co-operative bank through Vintage Auctioneers went ahead to seize her car without notice, proclamation or even a court order sanctioning the seizure of her disability car.

5. The respondents on the other hand aver that the applicant has outstanding arrears of ksh.111,000/= on the loan advanced to her in 2014. The loan was to be repaid within 12 months. The loan has been outstanding for over three (3) years. The applicant voluntarily pledged her logbook as security for the loan and therefore bound herself to honour the terms of the chattels mortgage. The respondent further avers that the auctioneer served the proclamation notice upon the applicant therefore there is no prima facie case. The motion lacks merit and hence should be dismissed.

6. The principles to be considered in determining an application for interlocutory injunction were well laid down in the case of Giella –vs- Cassman Brown and Co. Ltd (1973) EA 356 as follows:

i. The applicant must make out a prima facie case with a probability of success; and

ii. The applicant must show that if he is denied the order of injunction he would suffer irreparable loss which cannot be adequately compensated by an award of damages; and

iii. If there is doubt as to either of the above, the court would decide the application on a balance of convenience.

7. On the first principle (i) above the Court of Appeal defined what a prima facie case is in the case of Mrao Ltd =vs- First American Bank of Kenya Ltd and 2 others (2003) KLR as follows

“I would say that in Civil cases it is a case in 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 latter.”

8. The appellant herein owes the respondent money advanced to her in form of a loan which has not been paid in full. The case was pledged as a chattels mortgage to secure the loan. The failure by the applicant to repay the loan prompted the respondent to seize her car as security for the repayment of the loan balance. The applicant states that she needs her car back to enable her move around to enable her realize the money to pay back the loan to the 1st respondent. The applicant also argues that if this is done, she will undertake to pay the loan back within three months of the release of the car to her. The applicant’s arguments on the face of it appear attractive. however, if this court grants the order then the court in essence be redrawing the agreement expressed vide the chattels mortgage. I therefore find that the applicant has failed to establish a prima facie case.

9. The second principle states that the applicant must show that if he/she is denied the order for injunction, he would suffer irreparable loss which cannot be adequately compensated by an award of damages. The applicant has stated that she is undergoing untold suffering irreparable loss and damages without her car, which facilitates her movements as she is permanently disabled and the car facilitates her movements and she is unable to work and earn a living. In my view it is apparent that the applicant will suffer some discomfort but that discomfort cannot be said to cause her irreparable damage..

10. On the principle of a balance of convenience, I am not in doubt and as such I will not belabour consider this principle.

11. In the end, I find no merit in this motion, it is dismissed with costs to the respondent.

Dated, Signed and Delivered in open court this 6th day of October, 2017.

J. K. SERGON

JUDGE

In the presence of:

.................................................... for the Plaintiff

..................................................... for the Defendant