https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6738

Okoth v Tonui & another (Civil Appeal E013 of 2026) [2026] KEHC 6738 (KLR) (20 May 2026) (Ruling) Neutral citation: [2026] KEHC 6738 (KLR) Republic of Kenya In the High Court at Siaya Civil Appeal E013 of 2026 DK Kemei, J May 20, 2026 Between Joseph Odhambo Okoth Appellant and Stephen Kipyegon Tonui 1st Respondent Momentum Credit Limited 2nd Respondent Ruling 1.The Appellant filed the present application dated 9/3/2026 seeking the following orders; -i.Spent.ii.Spentiii.That pending hearing and determination of the appeal, this Honourable Court be pleased to issue conservatory orders restraining the 2nd Respondent, its servants, agents, or any person acting under its direction from proclaiming, repossessing, attaching, carting away, advertising for sale, selling, demanding payments, harassing or in any other way dealing with the Motor vehicle KCM 178X.iv.That costs of this Application be in the cause. 2.The application is supported by the affidavit of the Applicant sworn on even date. The Appellant’s gravamen is inter alia;- that on 25th October 2022, he entered into a sale agreement for Motor vehicle Registration Number KCM 178X with the 1st Respondent at a purchase price of Kenya Shillings One Million, one hundred and fifty thousand. (Kshs. 1,150,000/-); that on the same day upon execution of the said agreement, he paid a sum of Kenya shillings Nine hundred and fifty thousand (Kshs. 950,000/-) to the 1st Respondent’s account number 02XXXXXXXX385 and took possession of the said motor vehicle; that the motor vehicle was sold to him under a contract term of 'AS IT IS' and an implied term that the 1st Respondent would transfer the ownership of the motor vehicle and register it under the Applicant's name; that he proceeded to repair and further improve the motor vehicle; that all along, the 1st Respondent represented to him that he had fully paid any loans, disbursements and/or credit facilities extended to him by the 2nd Respondent and that the 2nd Respondent should release the logbook to the said motor vehicle for the registration in his name; that while at it, the 2nd Respondent persistently demanded exorbitant payments from him with threats of repossession of the said motor vehicle should he fail to meet the charges; that on 9th May 2023, the Applicant filed a Plaint in MCCC/E038/2023 at Ukwala Magistrate Courts; that the matter was heard and determined by Honourable E. Tsimonjero who dismissed the suit on 5th March 2026; that being dissatisfied with the judgement delivered by Court on 5th March 2026, he filed an appeal before this Honourable Court; that due to the prevailing circumstances, the Applicant lives in constant fear that the 2nd Respondent may repossess the motor vehicle at any time, notwithstanding the payments that have been continually demanded and extorted from the Applicant; that the Applicant also fears that should the motor vehicle be repossessed by the 2nd Respondent, he stands to suffer substantial loss, including the loss of the motor vehicle, the monies already paid to the Respondents, as well as the additional sums he incurred in repairing the vehicle after purchase, which amounts remain unrefunded by the 1st Respondent; that the Court to issue an interlocutory injunction restraining the 2nd Respondent its servants, agents, or any person acting under its direction from proclaiming, repossessing, attaching, carting away, advertising for sale, selling, demanding payments, harassing or in any other way dealing with the Motor vehicle KCM 178X.i.The 2nd Respondent filed a replying affidavit dated 8th April 2026 where it was averred inter alia; that the applicant filed a suit against the respondents seeking for the following prayer: a permanent injunction restraining the respondents from proclaiming, repossessing, attaching, carting away, advertising for sale, selling, demanding for payments, harassing or in any way dealing with motor vehicle number KCM 178X; that on 5th March 2026, the applicant's suit was dismissed with costs; that the applicant's suit was dismissed because he entered into a sale agreement for motor vehicle KCM 178X with the 1st Respondent who had used the same motor vehicle as a security for a loan that he obtained from the 2nd Respondent; that the Applicant was fully aware that motor vehicle KCM 178X was security for a loan that the 1st Respondent had obtained from the 2nd Respondent when he entered into the motor vehicle sale agreement on 25th October 2022; that the 1st Respondent obtained the loan facility of Kshs. 750,000/= and insurance premium financing of Kshs. 57,673/= on 19th July 2021 from the 2nd Respondent; that there is no privity of contract between the Applicant and the 2nd Respondent; that the Applicant and the 1st Respondent did not involve the 2nd Respondent in the motor vehicle sale agreement dated 25th October 2022; that failure to involve the 2nd Respondent in the motor vehicle sale agreement dated 25th October 2022 was a clear attempt at divesting the ownership rights of the 2nd Respondent in the loan security; that motor vehicle sale agreement dated 25th October 2022 is null and void ab initio and cannot confer ownership rights upon the Applicant or any contractual obligations against the 2nd Respondent; that the sale agreement dated 25th October 2022 was executed after the 1st Respondent defaulted in his loan payment obligations. This was a clear and concerted move to defeat the interest of the 2nd Respondent in the loan security; that when the Applicant knowingly "bought" the suit motor vehicle, which is a secured chattel for the due performance of the loan, he knew the consequences attached to the 1st Respondent’s default of repayment of the loan. 3.The application was canvassed by way of written submissions. 4.It was submitted by learned counsel for the Appellant that the Applicant is seeking conservatory orders as provided for under Article 23(3)(c) of the Constitution of Kenya, 2010, to preserve the suit motor vehicle as in the case of Invesco Assurance Co. v MW (Minor Suing thro’ next friend and mother(HW) [2016] eKLR where the meaning and purpose of a conservatory order was stated as follows:“A conservatory order is a judicial remedy granted by the court by way of an undertaking that no action of any kind is taken to preserve the subject until the motion of the suit is heard. It is an order of status quo for the preservation of the subject matter.”As to whether an Applicant is deserving of a conservatory order or not were summarized in Wilson Kaberia Nkunja v Magistrates and Judges Vetting Board & another [2016] eKLR as follows:“25. It therefore follows that an Applicant must satisfy three key principles in order to make out a case for the grant of conservatory orders that is:An Applicant must demonstrate that he has a prima facie case with a likelihood of success and that unless the court grants the conservatory order, there is real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution;Whether if a conservatory order is not granted, the Petition alleging violation of, or threat of violation of rights will be rendered nugatory; and the public interest must be considered before grant of a conservatory order.” 5.It was also submitted that the 2nd Respondent instructed auctioneers who served the Appellant with a Notice of Attachment dated 7th March 2023, notifying him of alleged arrears owed by the 1st Respondent and indicating their intention to remove the suit motor vehicle from his premises and auction it within seven days. Consequently, and in order to avert the imminent attachment and sale, the Applicant paid a sum of Kshs. 27,000/- on 13th March 2023 and a further sum of Kshs. 36,000/- on 11th April 2023, that; following the dismissal of this suit, the Applicant now lives in apprehension that similar enforcement action may be undertaken against him, which would result in the loss of the suit motor vehicle, the sums already paid to the Respondents, and additional expenses incurred in repairing the vehicle after purchase, all of which remain unrefunded by the 1st Respondent.In the case of Obado v Oyugi & 2 others [2014] KESC 25 (KLR) the Court held that the Petitioner established a prima facie case showing that the Executive Order may be unconstitutional, particularly for interfering with the independence of the Judiciary and constitutional commissions. The Court held that failure to grant interim orders would cause irreparable harm, including irreversible administrative, financial, structural changes and issued a conservatory order.In Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR the court issued conservatory orders and maintained the situation as it were and also halted all steps towards a new election until the appeal was resolved 6.In the foregoing, the Applicant submits that if the conservatory orders are not granted, the Applicant stands to lose a Motor vehicle Registration number KCM 178X to the 2nd Respondent and consequently stands to suffer substantial and irreparable loss, the monies already paid to the Respondents, and the additional sums expended in repairing the vehicle after purchase and that the amounts are yet to be refunded by the Respondents. 7.The 2nd Respondent gave a brief history of the matter which was inter alia; that on 19th July 2021, the 1st Respondent applied and was granted a loan facility of Kshs. 715,000/= and insurance premium finance of Kshs. 57,673/= by the 2nd Respondent; that the 1st Respondent used motor vehicle registration number KCM 178X as security for the loan facilities; that the aforesaid motor vehicle was jointly registered in the names of the 1st and the 2nd respondent; that the before disbursing the loan facilities, the 1st Respondent was required to value the collateral and to fit a tracking device on the collateral; that the 1st Defendant’s log book loan facility was to be repaid in eighteen monthly instalments; that the 1st Respondent’s loan account fell in arrears; that subsequently, the 2nd Respondent issued several demand letters to the 1st Respondent which did not elicit any response or payment; that on 25th October 2022, the Appellant and the 1st Respondent entered into a motor vehicle sale agreement in respect of the vehicle (KCM 178X) that the 1st Respondent had offered as security for the log book loans; that the 2nd Respondent was not privy or a party to the alleged motor vehicle sale agreement dated 25th October 2022 between the Appellant and the 1st Respondent; that the Appellant was not vigilant in this case; that he clearly failed to exercise due diligence before allegedly buying a loan security (motor vehicle registration number KCM 178X) from the 1st Respondent; that If he simply carried out a motor vehicle search, he would have established that the suit motor vehicle was charged to the 2nd Respondent; that having failed to exercise due diligence, the 2nd Respondent submits that the Appellant/Applicant is undeserving of the conservatory orders; that the Appellant/applicant has failed to establish a prima facie constitutional violation, demonstrate irreparable harm and show that the dispute transcends a commercial contract; that the application dated 9th March, 2026 be dismissed with costs. 8.The 2nd Respondent cited the case of High-Plast Limited Ml Hc Ip No E 001 of 2019 (2019) eKLR, where Justice Kasango held that: -“the rights of a secured creditor under a charge are intact. These rights are subject to the legal regime that regulates the processes of executing these rights.”. Also, In the case of Francis Ngarama Kiratu V Equity Bank Ltd & Another [2016] eKLR, the Court declined to grant an injunction where the borrower admitted default, holding that repossession was lawful under the chattel mortgage. In Julius Mainye Anyega V Ecobank Kenya Limited [2014] eKLR by the Hon. F. Gikonyo J held:“…A court of equity cannot and should not aid a person whose default is the very reason why a statutory power of sale is being exercised. It is settled that a party cannot derive benefit from his own wrong…” 9.It was submitted that the balance of convenience tilts in favour of the 2nd Respondent, who risks continued financial loss due to default by the 1st Respondent. Reliance was placed in the case of Julius Mainye Anyega V Ecobank Kenya Limited [2014] eKLR (supra). 10.I have considered the Appellant’s application dated 9/3/2026 and the rival affidavits plus submissions. It is not in dispute that the 2nd Respondent has since commenced the exercise of its rights as a lender and is out to seize the suit motor vehicle that had been sold to the Appellant by the 1st Respondent despite the same having been used by the 2st Respondent as security for the said loan. It is also not in dispute that the Appellant’s suit in the lower court was dismissed and who has already filed his Memorandum of Appeal. I find the issue for determination is whether the application has merit. 11.It is noted that the Appellant’s case stemmed from a suit which had sought an order of injunction against the Respondents herein. The Appellant has now moved to this court on appeal and seeks for conservatory orders of injunction in order to preserve the subject of the appeal namely a motor vehicle registration number KCM 178X. In the case of Mrao Ltd Vs First American Bank of Kenya Ltd & 2 Others [2003] eKLR the Court of Appeal defined the requirements for a prima facie case to grant an interlocutory injunction. It established that a prima facie case must include a probability of success, not just an arguable one, and requires full and honest disclosure. Indeed, for one to succeed in an action for injunction, it must be shown that there is a prima facie case with a probability of success, as well as that the Applicant stands to suffer irreparable injury which cannot be compensated by an award of damages and finally, in the event the court is sin doubt, to decide the matter on a balance of convenience. See the case of Giella Vs Cassman Brown & Co ltd [1973] EA 358. In the Mrao case (supra) it was held as follows:“The principles which guide the court in deciding whether or not to grant an interlocutory injunction are several. Firstly, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless an applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience...A mere scintilla of evidence can never be enough; nor can any amount of worthless discredited evidence. It is true that the court is not required at that stage to decide finally whether the evidence is worthy of credit, or whether if believed it is weighty enough to prove the case conclusively: that final determination can only properly be made when the case for the defence has been heard. In civil cases a prima facie case 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 to call for an explanation or rebuttal from the latter. A prima facie case is more than an arguable case. It is not sufficient to raise issues but the evidence must show an infringement of a right and the probability of success of the applicant’s case upon trial. That is clearly, a standard which is higher than an arguable case.’’ 12.The Appellant’s counsel submits that the Appellant herein is seeking conservatory orders as provided for under Article 23(3)(c) of the Constitution of Kenya, 2010, to preserve the suit motor vehicle as in the case of Invesco Assurance Co. v MW (Minor Suing thro’ next friend and mother(HW) [2016] eKLR where the meaning and purpose of a conservatory order was stated as follows:“A conservatory order is a judicial remedy granted by the court by way of an undertaking that no action of any kind is taken to preserve the subject until the motion of the suit is heard. It is an order of status quo for the preservation of the subject matter.”As to whether an Applicant is deserving of a conservatory order or not were summarized in Wilson Kaberia Nkunja v Magistrates and Judges Vetting Board & another [2016] eKLR as follows:“25. It therefore follows that an Applicant must satisfy three key principles in order to make out a case for the grant of conservatory orders that is:An Applicant must demonstrate that he has a prima facie case with a likelihood of success and that unless the court grants the conservatory order, there is real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution;Whether if a conservatory order is not granted, the Petition alleging violation of, or threat of violation of rights will be rendered nugatory; and the public interest must be considered before grant of a conservatory order.” 13.Even though counsel for the Appellant has placed reliance in some provisions of the constitution regarding preservation of the status quo following violation of a constitutional right, it is obvious that the genesis of the Appellants suit stemmed from a request for orders of injunction against the Respondents herein who were out to seize the suit motor vehicle. I will therefore steer clear on that issue and concentrate on the issue of whether an injunction is merited in the circumstances. 14.It is note that the 2nd Respondent had already instructed auctioneers had pursued the Appellant with a Notice of Attachment dated 7th March 2023, notifying him of alleged arrears owed by the 1st Respondent and indicating their intention to remove the suit motor vehicle from his premises and auction it within seven days. Consequently, and in order to avert the imminent attachment and sale, the Applicant claims that he paid a sum of Kshs. 27,000/- on 13th March 2023 and a further sum of Kshs. 36,000/- on 11th April 2023 and that following the dismissal of his suit by the trial court, the Applicant now lives in apprehension that similar enforcement action may be undertaken against him, which would result in the loss of the suit motor vehicle as well as the sums already paid to the Respondents, and additional expenses incurred in repairing the vehicle after purchase, all of which are yet to be refunded by the 1st Respondent. It is thus clear that the Appellant has had to pay for the suit vehicle wherein he paid the 1st Respondent while he is now being pursued by the 2nd Respondent as it has come to his realization that the suit vehicle had been used as security by the 1st Respondent. Apparently, the 1st Respondent has deliberately refused to participate in the suit either in the lower court or in this appeal. The Appellant therefore is in cul-de-sac situation as he has literally been thrown under the bus by both Respondents herein. There is thus likelihood of the Appellant suffering prejudice and loss if the status quo is not secured pending the determination of the appeal.In the case of Obado v Oyugi & 2 others [2014] KESC 25 (KLR) the Court held that the Petitioner established a prima facie case showing that the Executive Order may be unconstitutional, particularly for interfering with the independence of the Judiciary and constitutional commissions. The Court held that failure to grant interim orders would cause irreparable harm, including irreversible administrative, financial, structural changes and issued a conservatory order.In Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR the court issued conservatory orders and maintained the situation as it were and also halted all steps towards a new election until the appeal was resolved 15.From the foregoing, the Applicant it is clear that if the conservatory orders are not granted, the Applicant stands to lose the Motor vehicle Registration number KCM 178X to the 2nd Respondent and consequently stands to suffer substantial and irreparable loss as he has already paid the purchase price to the 1st Respondent as well as having made some payments to the 2nd Respondent and also incurred expenses in repairing the vehicle after purchase and which amounts are yet to be refunded by the Respondents. 16.As regards the issue of a prima facie case, it is noted that the merits or otherwise of the appeal is yet to be established. The Appellant has already lodged his Memorandum of Appeal which somehow raises triable issues. Even though the 2nd Respondent has brought up the issue of lack of privity between the Appellant and the 2nd Respondent, there is evidence that the Appellant has somehow engaged with it regarding payment of outstanding loans by the 1st Respondent. I find that the Appellant is likely to suffer prejudice if the order for the injunction is not granted as the suit motor vehicle will be seized by the Respondents and hence the appeal will be rendered nugatory. It is not in dispute that the Respondents have received some substantial payments from the Appellant and thus they do not suffer any prejudice if the order of injunction is granted pending determination of the appeal. Iam satisfied that the balance of convenience tilts in favour of granting the order of injunction so as to preserve the subject matter of the appeal. 17.In view of the foregoing observations, it is my finding that the Appellant’s application dated 9/3/2026 has merit. The same is allowed in terms of prayer No. 3 thereof. The parties are hereby directed to proceed and take directions towards the determination of the appeal on priority basis. The costs of the application shall abide in the appeal. DATED AND DELIVERED AT SIAYA, THIS 20TH DAY OF MAY, 2026.D. KEMEIJUDGEIn the presence of:M/s Kwarikwar for Achach...................for Appellant/ApplicantN/A..................................................... 1st RespondentMr Tolo.............................................for 2nd RespondentM/s Mourine.................................Court Assistant