https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11540

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS - CIVIL APPELLATE DIVISION** **CIVIL APPEAL NUMBER E653 OF 2025** **AGNES NJERI NYAMBURA ……………..……..……………… APPELLANT** **-VERSUS-** **HELSTON MOTORS LIMITED…...………………..……. 1ST RESPONDENT** **FIRST CAPITAL LIMITED…...………………......………. 2ND RESPONDENT** ### RULING **I. INTRODUCTION AND BACKGROUND** 1. Before this Court for determination is the Appellant’s/Applicant’s Notice of Motion application dated 19th June 2025. The application is brought under Order 42 Rules 6(1), (2), and (6) of the Civil Procedure Rules and Sections 1A and 3A of the Civil Procedure Act. 2. The Applicant seeks the following principal orders: 1. That the application be certified urgent and heard forthwith. 2. Pending the hearing and determination of this application, the Court grants an injunction stopping the 2nd Respondent from repossessing and selling motor vehicle registration number KDP 542J belonging to the Applicant. 3. Pending the hearing and determination of this application, the Court set aside the Ruling of the trial court in CMCC E7218/2024 issued on 30/05/2025 and all the consequential orders. 4. Pending the hearing and determination of this Appeal, the Court grants an injunction against the 2nd Respondent stopping the repossession and sale of the Appellant motor vehicle KDP 542J pending the hearing and determination of NAIROBI CMCC E7218 OF 2024. AGNES NJERI NYAMBURA VS HELSTON MOTORS & FIRST CAPITAL LTD. 3. The dispute centers around motor vehicle registration number KDP 542J. The Applicant contends that she instructed the 1st Respondent to import the vehicle on her behalf and paid the full purchase and import costs amounting to Kshs 6,300,000/=. The Appellant asserts that the 1st Respondent, without her consent or knowledge, fraudulently pledged the vehicle as security to the 2nd Respondent for a loan facility of Kshs 3,000,000/=. 4. The 1st Respondent defaulted on the loan, prompting the 2nd Respondent to issue repossession instructions to Urban Delali Auctioneers on 30th May 2025 to recover an outstanding debt of Kshs 4,582,029.38/=. The Applicant sought a temporary injunction in the lower court, which was dismissed by Hon. Z.K. Kiboss on 30th May 2025. Aggrieved by that dismissal, the Applicant lodged a Memorandum of Appeal on 17th June 2025 and filed the instant application. **II. THE APPLICANT'S CASE** 1. The application is supported by the Applicant’s affidavit sworn on 19th June 2025 and written submissions dated 22nd May 2026. The Applicant argues that: 1. She is an innocent purchaser for value without notice, having paid the full consideration of Kshs 6,300,000/= to the 1st Respondent. 2. The 1st Respondent does not deny selling the vehicle to her and receiving the funds. 3. The intended appeal is highly arguable and raises a serious question of law: whether a financier can repossess a vehicle belonging to a third party who paid for it in full and was not privy to the loan agreement. 4. If an injunction is not granted, the 2nd Respondent will proceed to repossess and sell the vehicle, thereby destroying the substratum of the suit and rendering the appeal entirely nugatory. **III. THE 2ND RESPONDENT'S CASE** 1. The 2nd Respondent opposed the application through Grounds of Opposition dated 5th February 2026 and written submissions dated 16th March 2026. The 2nd Respondent submits that: 1. The trial court’s ruling of 30th May 2025 was a negative order because it merely dismissed the Applicant’s application for an injunction. It did not command any party to perform any positive act, and therefore, there is nothing capable of being stayed. 2. The loan agreement between the 1st and 2nd Respondents was executed on 6th February 2024, which predates the Applicant's alleged sale agreement dated 13th February 2024. 3. The 2nd Respondent holds a registered security interest under the Movable Property Security Rights Act (MPSRA) and is entitled to exercise statutory remedies of repossession and sale. 4. Damages would be an adequate remedy, as the value of the motor vehicle is readily ascertainable, and the 2nd Respondent is a reputable financial institution capable of compensating the Applicant. **IV. ISSUES FOR DETERMINATION** 1. Having considered the notice of motion application, the parties’ respective affidavits, and the rival submissions of counsel, the primary issues for determination crystallize as follows: 1. *Whether the 2nd Respondent’s reliance on the doctrine of "stay of execution of a negative order" is applicable to the Applicant's prayers.* 2. *Whether the Court should grant an injunction pending appeal to preserve the substratum of the suit.* 3. *The appropriate orders to ensure effective administration of justice and finality of the dispute between the parties.* **V. DETERMINATION** ***Whether the 2nd Respondent’s reliance on the doctrine of "stay of execution of a negative order" is applicable to the Applicant's prayers.*** 1. The 2nd Respondent’s defense relies heavily on the proposition that a court cannot stay a negative order, citing *Western College of Arts and Applied Sciences v. Enosh Performance Oranga [1982] eKLR*. While the legal proposition that a purely negative order (such as an order dismissing an application) cannot be stayed is sound law, it has no application to the Motion before this Court. 2. A plain reading of the Applicant’s Notice of Motion dated 19th June 2025 reveals that the Applicant did not pray for a stay of execution of the trial court’s ruling of 30th May 2025. Prayers 2 and 4 of the Notice of Motion expressly seek orders of injunction to restrain the 2nd Respondent from repossessing and selling the motor vehicle KDP 542J, while Prayer 3 seeks an order setting aside the trial court's ruling. 3. The 2nd Respondent was therefore clearly misguided in framing its opposition around the concept of a "stay of execution of a negative order." The Court cannot evaluate an application on the basis of prayers that were never made. The relief sought by the Applicant is explicitly prohibitory/injunctive in nature, aimed at restraining the 2nd Respondent from taking a specific physical act namely, the repossession and alienation of the vehicle. ***Whether the Court should grant an injunction pending appeal to preserve the substratum of the suit****.* 1. The jurisdiction of the High Court to grant an injunction pending appeal is discretionary and guided by the principles articulated in **Patricia Njeri & 3 others v National Museum of Kenya [2004] KEHC 1614 (KLR)** as follows: 1. The appeal must not be frivolous; it must present arguable grounds. 2. The applicant must show that if the injunction is refused, the appeal would be rendered nugatory. 3. The court must balance the relative hardship to the parties. 2. An arguable appeal is not one that must necessarily succeed. Rather, it is an appeal that raises triable issues of law or fact that deserve a merits-based interrogation by the appellate court. This principle was set out in the case of **Stanley Kang'ethe Kinyanjui v Tony Keter & 5 Others [2013] eKLR.** 3. The Applicant paid a substantial sum of Kshs. 6,300,000/= to purchase the subject motor vehicle. The importer, 1st Respondent, subsequently charged the vehicle to the 2nd Respondent. This factual matrix raises weighty legal questions regarding the intersection of the Movable Property Security Rights Act (MPSRA), the rights of an innocent purchaser for value without notice, and the legal consequences of a fraudulent charge created by an importing agent. These issues are far from frivolous and merit a substantive hearing. 4. If the temporary injunction is denied, the 2nd Respondent will proceed to repossess and sell the motor vehicle through its instructed auctioneers. Should the vehicle be sold to a third party, the physical substratum of the appeal will be permanently lost. 5. While the 2nd Respondent argues that damages would be an adequate remedy, this Court must consider that the 1st Respondent, the party directly responsible for the default and fraudulent charge, has not demonstrated any financial capacity to refund the Applicant’s Kshs 6,300,000/=. Permitting the immediate sale of the vehicle before the Court determines who holds superior legal title would render the eventual judgment of this Court an academic exercise. 6. In **Jennifer Akinyi Osodo v Boniface Okumu Osodo & Others [2021] KECA 465 (KLR),** the Court of Appeal faced a similar scenario granted a temporary injunction pending appeal to preserve the subject matter from being sold. 7. Applying that same rationale here, the balance of convenience heavily tilts towards preserving the motor vehicle. The 2nd Respondent will suffer no prejudice if its statutory right of sale is temporarily held in abeyance, whereas the Applicant stands to lose both her money and her vehicle permanently. ***Remittal to Trial Court for Hearing and Determination*** 1. Given that the grant of the order of injunction effectively preserves the subject matter, being the motor vehicle registration number KDP 542J, and maintains the status quo between the parties, there remains no further useful purpose or relief to be determined in this appeal. The ultimate dispute regarding ownership, validity of the charge, and entitlement to the motor vehicle rests on triable issues that must be comprehensively heard on the merits. 2. In the interest of overriding objectives under Sections 1A and 1B of the Civil Procedure Act specifically to facilitate the just, expeditious, proportionate, and affordable resolution of disputes it is proper and appropriate that the substantive dispute be remitted back to the trial court for full trial, hearing, and final determination. **VI. FINAL DISPOSITION** 1. The Court observes that the 1st Respondent never entered appearance nor filed a defence in this matter, yet, the 1st Respondent is very instrumental in these proceedings. 2. To balance the competing interests of the parties, preserve the integrity of the suit, and ensure an expeditious resolution, this Court orders as follows: 3. A temporary injunction is hereby granted restraining the 2nd Respondent, whether by itself, its officers, servants, agents, or auctioneers, from repossessing, attaching, advertising for sale, selling, or in any other manner disposing of Motor Vehicle registration number KDP 542J pending the final determination of Milimani Commercial Magistrate's Court Case No. MCC/E7218/2024. 4. The injunction in paragraph (a) above is granted on the strict condition that the Applicant: 5. Shall maintain the motor vehicle in good, roadworthy condition and shall not sell, alienate, charge, or transfer the vehicle to any third party pending the final determination of the suit. 6. Shall keep the motor vehicle comprehensively insured at her own cost. 7. Upon the issuance of the injunction preserving the subject matter, the appeal herein (Civil Appeal No. E653 of 2025) is hereby disposed of, and the matter is referred back to the trial court (Milimani Commercial Magistrate's Court) for expeditious hearing and determination on the merits. 8. The trial court is directed to place Milimani Commercial Magistrate's Court Case No. MCC/E7218/2024 on priority hearing. 9. The costs of this application and appeal shall abide the outcome of the trial court's final determination. **It is so ordered.** **DATED AND DELIVERED** at **NAIROBI** this **23RD** Day of **JULY** 2026 ……………………………………. **E. K. OGOLA** **JUDGE** ***In the Presence of;*** Ms. Nyambura h/b Waitere.…………..………….. for the Applicant Ms. Nkonge ……………….……………..……for the 2nd Respondent Gisiele……………………………………….………… Court Assistant