https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9698

Odongo v Momentum Credit Ltd & another (Commercial Appeal E169 of 2024) [2026] KEHC 9698 (KLR) (Commercial and Tax) (3 July 2026) (Judgment) Neutral citation: [2026] KEHC 9698 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Commercial Appeal E169 of 2024 FG Mugambi, J July 3, 2026 Between Millicent Linda Atieno Odongo Appellant and Momentum Credit Limited 1st Respondent Mallard Auctioneers 2nd Respondent (Being an appeal from the Ruling & Order of Hon. B.C. Mulemia, PM dated 31st May 2024 at the Magistrates Court at Milimani, Nairobi Civil Case No. E5142 of 2023) Judgment Background and Introduction 1.The Appellant, through her Memorandum of Appeal dated 26th June 2024, challenges the ruling of the subordinate court delivered on 31st May 2024, which dismissed her application for an injunction. Before the subordinate court, her case was that she had obtained a loan facility of Kshs. 200,000.00, which was secured by her motor vehicle, a Suzuki Swift, registration number KCU *M. She contended that despite having repaid over Kshs. 400,000.00, the 1st Respondent continued to demand an alleged outstanding balance of Kshs. 389,528.00 and subsequently instructed the 2nd Respondent to repossess the vehicle. 2.She contends that the learned Magistrate disregarded the evidence she had presented and mischaracterized her application as one seeking a stay of loan repayment, whereas in fact it sought a stay against the sale of the subject motor vehicle. She further argues that the Magistrate failed to consider the applicable legal principles and authorities governing temporary injunctions, including Order 40 Rule 1 of the Civil Procedure Rules, the balance of convenience, and the need to preserve the substratum of the suit. 3.The Appellant also asserts that the learned Magistrate neglected to address a specific prayer in her application which sought an order compelling the 1st Respondent to provide accurate and complete loan account statements. In addition, she challenges the award of costs to the Respondents, noting that the Magistrate allegedly ignored her case, and maintains that the Respondents did not discharge the burden of proving that her application was without merit. 4.The Appellant thus seeks that the appeal be allowed with costs, that the subordinate court’s Ruling be set aside, that her application dated 5th December 2023 be found merited, an order of stay be issued and the 1st Respondent be ordered to provide full loan account statements. The Appellant also seeks that the costs of this appeal and that of the subordinate court be borne by the Respondents. 5.In response to the appeal the Respondent submits that the Appellant did not merely obtain a single loan facility, but rather applied and was advanced a total of 5 facilities, each refinancing the previous debt. The first facility, taken on 24th August 2020, was a logbook loan of Kshs. 200,000.00 secured by the Appellant’s motor vehicle. The second facility, obtained on 4th April 2021, was a top-up loan of Kshs. 291,500.00, of which Kshs. 188,724.00 was automatically applied to extinguish the first loan. 6.The third facility, which was taken on 29th October 2021, was converted into an “Ezua Chapaa” credit card facility of Kshs. 266,000.00, with Kshs. 227,160.00 being utilized to clear the second loan. On 15th May 2023, the fourth facility was taken, converting the credit card facility back into a logbook loan of Kshs. 299,037.00, to clear the third loan. Finally, the 5th facility was an Insurance Premium Financing arrangement amounting to Kshs. 48,718.00. The Appellant defaulted in servicing the 4th and 5th facilities as per the loan statements attached, which led to issuance of letters of instructions to auctioneers to proceed and repossess the subject motor vehicle Analysis and Determination 7.The appeal has been canvassed through written submissions, which I have carefully considered alongside the record. I shall make the necessary references to both in the course of my analysis and determination below. 8.As the Appellant has submitted, this being a first appeal, the court is enjoined by section 78 of the Civil Procedure Act to re‑evaluate and examine the record of the subordinate court together with the evidence presented, and thereafter arrive at its own independent conclusion. The principle was well settled in Selle V Associated MotorBoat Co Ltd, [1968] EA 123, where the Court of Appeal outlined the duties of a first appellate court as follows:“An appellate court] is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. ...” 9.Additionally, I am mindful that the Appellant is challenging a discretionary decision of the subordinate court. As an appellate court, this court must exercise caution and refrain from interfering with such discretion unless it is satisfied that the trial court misdirected itself in some material respect and thereby reached a wrong decision, or where it is evident from the record that the discretion was exercised improperly, resulting in an injustice. This principle was articulated in Mbogo V Shah, [1968] EA 93 and reaffirmed in United India Insurance Co Ltd V East African Underwriters (Kenya) Ltd, [1985] KECA 39 (KLR). 10.With these principles in mind, I now turn to consider the substantive appeal. Although the Appellant’s Memorandum of Appeal sets out 11 grounds, she has, in her submissions, condensed them into three issues for determination, namely:i.Whether this court ought to discharge and/or set aside the Ruling of the subordinate court delivered on 31st May 2024ii.Whether the Appellant’s Notice of Motion Application dated 5th December 2023 was merited; andiii.Who should bear the cost of the Appeal? 11.First of all, in response to the Appellant’s allegations that the learned Magistrate acted on wrong principles and ignored her evidence, thereby rendering the ruling liable to be overturned, I have carefully reviewed the record. It is clear that the learned Magistrate expressly stated in her ruling that she had “considered the application before the court, the response to it, the supplementary affidavit and the submissions on record” and further that she had “considered the depositions before the court”. As shall become apparent in this analysis, I am satisfied that the Appellant’s evidence was indeed considered, and the mere fact that the court did not adopt her position does not mean it was disregarded. Accordingly, this ground fails. 12.The Appellant submits that her application met the threshold for granting interlocutory relief, as its objective was to preserve the substratum of the suit, which is the motor vehicle. She argues that permitting the Respondents to sell or dispose of the vehicle before the main suit is heard would render any eventual judgment ineffectual and reduce the litigation to a mere academic exercise. She further maintains that, having already repaid more than double the principal amount borrowed, any additional sums claimed by the 1st Respondent contravene the in duplum rule. In her view, attempts to auction the motor vehicle based on what she terms fabricated and undisclosed loan calculations are null and void. 13.The Appellant also contends that the subordinate court failed to address a crucial prayer in her application, namely, an order compelling the 1st Respondent to provide a clear, accurate, and complete statement of account. She submits that the absence of such a statement gives rise to a genuine prima facie dispute, thereby warranting protection of her right to a fair trial. 14.In response, the 1st Respondent maintains that there was no overpayment and that the outstanding amounts relate to the 4th and 5th loan facilities. It relies on loan statements showing that the balance had escalated to Kshs. 594,914.83, largely due to contractual late payment charges triggered by default. The 1st Respondent maintains that the repossession instructions issued to the auctioneers were contractually warranted. 15.On the issue of accounts, the 1st Respondent dismisses the Appellant’s complaint, pointing out that loan statements had already been annexed as evidence, clearly reflecting what had been paid and what remained outstanding. It further argues that a formal rendering of accounts is a final remedy to be determined at the main trial, and if the Appellant succeeds, the court can grant it then. Accordingly, it submits that such relief is inappropriate at the interlocutory stage of this appeal. 16.I have carefully reviewed the record together with the parties’ submissions. It is evident to me that the learned Magistrate correctly identified the issues in dispute. At pages 2 and 3 of the ruling, the trial court stated:“I have considered the depositions before the court, and it does appear the contested issue is whether the Applicant has fully repaid the amount advanced as a loan by the 1st Respondent, and/or whether the Respondent has levied illegal interest.” 17.These were the precise issues before the court. I am satisfied that the Learned Magistrate properly delineated the matters for determination and proceeded on the correct footing. 18.The Appellant’s claim that she had overpaid the 1st Respondent a total of Kshs. 842,202.00 against an alleged disbursement of Kshs. 331,000.00 is not supported by the documentary evidence. The 1st Respondent produced loan statements covering the period from 22nd June 2023 to 22nd May 2025, which showed that as at 22nd May 2025, the outstanding balance stood at Kshs. 663,282.00. This evidence effectively rendered the Appellant’s prayer for production of account statements spent. 19.In any event, I have confirmed from the record that on 1st December 2023, the 1st Respondent sent to the Appellant, via email, a payoff statement together with a loan schedule. This demonstrates that the Appellant was duly furnished with the necessary account details, and her contention that no statements were provided is therefore unfounded. 20.The veracity of these documents does not appear to have been contested before the trial court. Under section 176 of the Evidence Act, the 1st Respondent’s bank statements constitute prima facie evidence of the Appellant’s indebtedness. The Appellant has not rebutted this position by producing her own bank statements or any other corroborating documentary evidence. 21.Moreover, the law is well settled that a mere dispute over the amount owing between a borrower and a lender does not, of itself, constitute sufficient grounds for granting an injunction to restrain the exercise of a statutory power of sale. As correctly cited by the learned Magistrate, in A.O. Basid Limited V Synergy Industrial Credit Limited, [2019] KEHC 12399 (KLR), such disputes are essentially matters of accounts which ought to be resolved through reconciliation, expert assistance, or at the full trial, rather than by way of interlocutory injunction. It must however be stated that the mere existence of a dispute does not automatically establish a prima facie case for the party advancing the claim, as was held in Patrick Okuku & 7 Others V James Kutsushi Atindo & 8 Others, [2016] KECA 580 (KLR). 22.With respect to the in duplum rule, the 1st Respondent has confirmed that multiple loan facilities were extended to the Appellant. It will therefore be for the trial court, upon full consideration of the evidence, to determine whether the rule applies in the circumstances and whether any breach occurred. This is a matter that cannot be conclusively addressed at the interlocutory stage and must await proof through evidence at the substantive trial. Should the 1st Respondent be found to have breached the rule, the amount due is quantifiable and can be refunded. 23.Having found that the Appellant did not satisfy the requirement of establishing a prima facie case, the inquiry for injunctive relief properly stopped at that point, as held in Nguruman Limited V Jan Bonde Nielsen & 2 Others, [2013] KECA 347 (KLR). Even if there were doubt, the balance of convenience would still not tilt in the Appellant’s favour for two main reasons. First, if the 1st Respondent were to succeed in its claim, there is no assurance that the security in question, that is the motor vehicle, would remain sufficient to cover the amount found due. By reason of depreciation, the debt may well outstrip the value of the security. 24.Secondly, I agree with the 1st Respondent that since the motor vehicle has already been valued, if the Appellant were to succeed in the suit, she can be adequately compensated through monetary damages. This means that an injunction is unnecessary, as damages would provide a complete remedy. 25.In the end, I am satisfied that the learned Magistrate correctly applied the principles set out in Giella V Cassman Brown & Co Ltd, (1973) EA 385 and reached the proper conclusion. I further find that the trial court exercised its discretion judicially, guided by the evidence and the applicable law, and I see no reason to interfere with or disturb that decision. Disposition 26.Accordingly, the appeal is dismissed with costs to the 1st Respondent. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 3RD DAY OF JULY 2026.F. MUGAMBIJUDGEDelivered in presence of:Aguko for appellantCourt Assistants: Lillian & Gloria