[2023] KEHC 26326 (KLR)

Mohamed v African Legend Safaris & another (Civil Case E136 of 2023) [2023] KEHC 26326 (KLR) (Civ) (8 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26326 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case E136 of 2023

DAS Majanja, J

December 8, 2023

Between

Mohamed Abdi Mohamed

Plaintiff

and

African Legend Safaris

1st Defendant

I & M Bank Limited

2nd Defendant

Ruling

Introduction and Background 1. The Plaintiff’s case as set out in the Plaint dated 26. 07. 2018 is that by a Lease Agreement dated 08. 11. 2018, it leased motor vehicle registration no. KCS 837P (“Range Rover”) from the 1st Defendant. Under the Agreement, the 1st Defendant would pay the insurance premiums and vehicle maintenance fee. In due course motor vehicle registration number KCQ 400Z (“Prado”) was added as part of the lease.

2. The Plaintiff states the as result of the 1st Defendant failing to honour its obligations under the Agreement, he entered into an oral agreement with the 1st Defendant to purchase the Range Rover and Prado (“motor vehicles”) but the 1st Defendant failed to surrender the registration documents to enable him transfer the motor vehicles to his name. Although the Plaintiff was unable to make payments during the COVID 19 pandemic period, he made efforts to settle the purchase price by making payment whenever possible.

3. The Plaintiff avers that in 2022, the 1st Defendant’s directors approached him to invest in a joint venture which he was requested to provide Kshs. 2,600,000. 00 expecting a return of Kshs. 40,000,000. 00. Instead of paying him returns on the investment, the Plaintiff accuses the 1st Defendant of claiming the Kshs. 2,600,000. 00 he paid for the investment was part payment for the motor vehicles. That the 1st Defendant has now threatened to take over the motor vehicles if USD 232,398. 38 is not paid to it. He accuses the 1st Defendant of failing to honour its obligations.

4. The Plaintiff seeks several reliefs. He prays for a declaration that the 1st Defendant has an obligation to pay insurance premiums and cater for maintenance for the motor vehicles under the Lease Agreements. A declaration that the Plaintiff is the only person liable to pay the 1st Defendant vehicle rental fees and not the insurance and maintenance fees. A declaration to the effect that if the 1st Defendant is to charge the Plaintiff any fees for insurance and maintenance of the motor vehicles, then it should honour the oral agreements between him and the 1st Defendant and a permanent injunction restraining the Defendants from proceeding to execute against the Plaintiff for the expired lease

5. In addition to the Plaint, the Plaintiff filed the Notice of Motion dated 26. 07. 2023 (erroneously dated 2018) seeking to stay the execution of attachment and sale of the motor vehicles and all forms of execution against the Plaintiff. The application is supported by the Plaintiff’s supporting affidavit and response to the replying affidavit sworn on 26. 07. 2023 and 01. 11. 2023 respectively. The Plaintiff’s case in the application mirrors his averments in the Plaint which I have already summarized above. It is opposed by the 1st Defendant through its Grounds of Opposition dated 02. 09. 2023 and the replying affidavit of its Managing Director, Saagar Sehmi, sworn on 09. 10. 2023.

6. The 1st Defendant (“the Defendant”) contends that the suit is bad in law and incurably defective on the ground that the Plaintiff has no locus standi to institute the suit emanating from contractual agreement between the Defendant and Serbian Group Limited (“Serbian”) and that there is no contractual obligation and/or agreement between the Plaintiff and the Defendant. That the Plaintiff, being a local director of Serbian is barred by the rule in Salomon v Salomon [1897] AC 22 from instituting legal proceedings against the Defendant in his personal capacity.

7. The Defendant states that it entered into a Lease Agreement for the Range Rover with Serbian. Under the agreement Serbian would pay a monthly rate of USD 4,253. 00 for the lease of the Range Rover payable on or before the 10th day of each month with a three (3) months deposit for 36 months ending in December,2021. Further, Serbian would pay annual insurance fee of USD 5,364. 00 to the Defendant who would in turn secure the said insurance with a reputable company. It was agreed that upon expiry of the lease, the 1st Defendant would return the motor vehicle in good working condition.

8. The Defendant avers that upon expiry of the lease duration, Serbian requested to continue using the Range Rover on the same terms and committed to pay the outstanding fees. The Defendant does not dispute that Serbian also leased the Prado from the Defendant under the said terms but then claims that it has been unable to make payments leaving an outstanding balance of USD 240,903. 38 for the motor vehicles which continues to accrue. Following failure to pay this sum, the Defendant states that instructed the law firm of Otieno & Ambrose Advocates who then instructed Eagle Eye Auctioneers to repossess the motor vehicles as the Plaintiff sought to retain the motor vehicles for his personal use and purporting that he had purchased the same from the Defendant.

9. The Defendant denies that it could have sold the motor vehicles to the Plaintiff as they are financed by the 2nd Defendant who is a joint registered owner. That failure by Serbian to pay the outstanding lease fees has exposed the Defendant to repossession by the financing bank. The Defendant urges the Plaintiff is wrongly and unlawfully holding the motor vehicles for his personal use and gain to the detriment of the Defendant.

Analysis and Determination 10. The application before the court is for an interlocutory injunction. The applicable principles are those settled in Giella v Cassman Brown & Co Ltd [1973] EA 358 where the court held that in order to qualify for an injunction, first the applicant must show a prima facie case with a probability of success, second, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable harm which would not be adequately compensated by an award of damages and third, if the court is in doubt, it will decide an application on a balance of convenience.

11. A prima facie case was defined by the Court of Appeal in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR as a case where there is a genuine and arguable case where on the material presented by the court, the court is satisfied that the applicant’s right has been infringed by the opposite party so as to call for an answer or rebuttal from the latter. In Nguruman Limited v Bonde Nielsen & 2 Others [2014] eKLR, the Court of Appeal held that without demonstrating a prima facie case, the issue whether the applicant might otherwise suffer irreparable harm does not fall for consideration. Thus, if the applicant does not prove any prima facie injury, then the other factors of irreparable harm and balance of convenience would not be considered.

12. The Plaintiff’s case is anchored on the claim that he is the beneficial and actual owner of the motor vehicles based on the Lease Agreement and an oral agreement between the parties for the Plaintiff to purchase the motor vehicles. This position has been rebutted and denied by the Defendant who insists that it is actually the Plaintiff who is indebted to it in the sum of USD 240,903. 38. The question of whether or not the Plaintiff is indebted to the Defendant is a matter for trial. In any case, I note that in his Plaint, the Plaintiff impliedly admits that he is still paying the Defendant for the motor vehicles but that it is the Defendant that is clogging the settlement of his account with the Defendant by allegedly duping him into investments.

13. From the Plaintiff’s own admission, he is still indebted to the Defendant and what remains for the court to determine is the extent of the indebtedness. Therefore, on a prima facie basis, the Plaintiff cannot claim absolute possession and proprietorship of the motor vehicles which are in the names of the Defendants. Further, since the Plaintiff is claiming breach of contract, a temporary injunction is not available to him and the only redress available is an award of damages for the alleged breach as was stated by the Court of Appeal in Esso Kenya Ltd v Mark Makwata Okiya KSM CA Civil Appeal No.69 of 1991 [1992] eKLR.

14. It is for the above reasons that I find that the Plaintiff has not made out a prima facie case with a probability of success. His quest for an injunction comes to a grinding halt in line with the dicta in Nguruman Limited v Jane Bonde Nielsen and 2 Others (supra). In any event, it is my finding that should the Plaintiff be successful in his suit, then damages would be an adequate remedy for any loss he might have suffered as a result of the Defendants selling or dealing with the motor vehicles in any way that is not amenable to the Plaintiff.

Disposition 15. The Plaintiff’s application dated 26. 07. 2023 lacks merit. It is dismissed with costs to the 1st Defendant.

DATED AND DELIVERED AT NAIROBI THIS 8TH DAY OF DECEMBER 2023. D. S. MAJANJAJUDGECourt Assistant: Mr M. OnyangoMr Agal instructed by A. C. Knight and Associates Advocates for the PlaintiffMr Ochuka instructed by Otieno and Ambrose Advocates for the 1st Defendant.