https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/574

NCBA Bank Kenya PLC v Wanyonyi (Civil Case E014 of 2023) [2026] KEMC 574 (KLR) (20 August 2026) (Ruling) Neutral citation: [2026] KEMC 574 (KLR) Republic of Kenya In the Bungoma Law Courts Civil Case E014 of 2023 RN Maloba, SPM August 20, 2026 Between NCBA Bank Kenya PLC Plaintiff and Calistus Simiyu Wanyonyi Defendant Ruling 1.In the application dated 11/06/2025, the defendant (hereinafter referred to as the Applicant) applied for grant of orders as follows;1.Spent.2.Spent.3.That the Plaintiff (hereinafter referred to as the respondent) be found in contempt of the court orders of 17/04/2025 and be subsequently committed to civil jail for a period not exceeding 6 months.4.That the Plaintiff be denied audience in the matter unless they purge the contempt of court committed herein.5.That costs of this application be provided for. 2.This application was based mainly on the ground that Respondent has defied orders of court issued on 17/04/2025 by failing to release the suit motor vehicle Reg. No. KDD 329 F back to him upon repossessing the same on 31/05/2025 for the purpose of fixing, repairing and or reactivating its tracking system as was authorized by the court in the same order. 3.The Applicant now prays that the plaintiff be punished for it in the manner sought above. He averred that the Respondent’s refusal to release back the motor vehicle has occasioned him loss of business and business reputation since, the said motor vehicle was his main source of income. 4.He added that the Respondents acts aforementioned undermines the authority and dignity of the court and ought to be punished. 5.The Respondent filed a replying affidavit sworn by their Senior Legal Counsel Jackson Nyaga Kingori. His counter-arguments were that;a)That the Applicant willfully failed or refused to comply with the orders dated 17/04/2025 upon being served with the same on 22/05/2025 and consequently, they proceeded to repossess the suit motor vehicle on 31/05/2025, more than a week later.b)That as such, it is misleading for the Applicant to say that they are in contempt of court when it is him, who defied the said order.c)That the delay in releasing of the suit motor vehicle was occasioned Applicant’s own default and or obstruction.d)That the delay in releasing the motor vehicle was neither intentional nor done in bad faith but due to unavoidable circumstances with respect to coordination of its return, logistical arrangements for supervised release and its extensive damage which required substantial repairs and servicing.e)That the motor vehicle has not been repaired, serviced and returned to the Applicant.f)That the application for contempt is now baseless, frivolous, ill-founded and without merit.g)That this application is calculated to shield the Applicant from the loan obligations which he is in breach of as he continues to enjoy the use and benefit of the suit motor vehicle. 6.The issues for determination in this application are;1.Whether this application is spent or not. If not;2.Whether the Respondent is contempt of court orders of 17/04/2025 concerning release of the suit motor vehicle Reg. No. KDD 329 F back to the Applicant.3.Whether the reliefs sought against the Respondent should be allowed. Determination 7.The background of this application is that on 17/ 04/2025, the court granted orders which allowed the Respondent to access the suit motor vehicle for the purpose of fixing or repairing or reactivating its tracking system. In order to facilitate that, the Applicant was to release the motor vehicle with a period of three days from date of service of the said orders upon him failing which, the same be forcefully repossessed. Regardless of how repossession was done, the same was limited to a period of three days only. 8.In contempt of court proceedings, the perquisites are;1.That the orders allegedly disobeyed were duly served upon the respondents/contemptuous.2.That the said orders had a penal notice endorsed on the same warning of penal consequences including committal to civil jail for contempt of court if breached or disobeyed- see Shimmers Plaza Limited -VS- National Bank of Kenya Limited (2013) KEHC 363 ( KLR) and Refrigeration and Kitchen Utensils Limited -vs- Gilabchand Poptlal Shah & Anor ( Civil Application No. 9 of 1990 and – Kiwis Ltd – VS- Reef Hotels Ltd(2006) eKLR and Mwangi Mwangondu -VS- Nairobi City Commission Civil Appeal No. 95 of 1988 9.But in this case, service of the said orders is not in issue. In any case, the serving party was the Respondent who moved the court for grant of the same. Similarly, not in issue is the endorsement of the penal notice on the orders in issue. Since in the said orders, the court imposed obligations on both parties in some respects, the penal notice was applicable to both. 10.In terms of compliance, the Respondent has indicated that they subsequently released the suit motor vehicle on 12/06/2025. They added that any delay in releasing the suit motor vehicle back to the Applicant was neither intentional nor in bad faith but was because the same had to repaired and further, the release had to be supervised. 11.Although that may have been the case, it is instructive to note that the repossession of the same was done on 31/05/2025. Any further extension of the three-day period should have been with leave of court. As no such leave was obtained, the excuse given is not acceptable to court. It amounted to a violation of the court’s orders of 17/04/2025. 12.The Respondent has argued that the Applicant was also in disobedience of the said orders because of his refusal to release the suit motor vehicle thereby necessitating the use of force. However, according to the court, that is a matter which should have formed a separate cause for contempt. Since none on the same exist, they are precluded from raising it as a ground to defeat the current application. That could have been an issue if what was sought is an equitable remedy such as injunction or specific performance whereby, the maxim of “he who comes to equity must come with clean hands” or “do equity’’ apply. 13.Due to that violation, I would find that this application has merit. But what remedies or orders should be made against the defendant in the circumstances of this case. 14.In my considered view, both prayers (c) and (d) are spent because of the subsequent release of the suit motor vehicle back to the Applicant by the Respondent. That means that the Respondent has since purged the contempt as was demanded in this application.CostsThe Applicant’s prayer is that costs of this application be provided for. It is trite that although costs are discretionary, the same normally follow the event- see Kaumbuthu v Muya (Civil Appeal E1381 & E1287 of 2024 (Consolidated)) [2026] KEHC 10628 (KLR) (Civ) (16 July 2026) (Judgment) and Nel v Kotecha Wholesellers Ltd [2026] KEELRC 1923 (KLR) 15.In this application, the Respondent’s delay in releasing the motor vehicle was unlawful and illegal for want of authority of the court. This illegality prompted the filing of this application. In circumstances and given the nature of this application, I would award the Applicant costs of Kshs. 10,000/= assessed up-front. 16.Consequently, the court disposes of this application as follows;a.That this application is marked as already spent.b.That the Applicant is awarded Kshs. 10,000/= as costs of this application payable within 14 days from date hereof. DATED & DELIVERED IN OPEN COURT THIS 20TH DAY OF AUGUST 2026R.B. N MALOBA (MS)SPMIn the presence of;Applicant- Mr. SifunaRespondent- N/A for Mr. Onkangi