[2022] KEHC 1502 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KITALE

CIVIL CASE NO 7 OF 2021

PETER KAMAU.........................................................................PLAINTIFF

VERSUS

SIMBA CORPORATION LIMITED....................................DEFENDANT

RULING

The Plaintiff filed suit against the Defendant seeking various reliefs relating to motor vehicle Reg. No KCS 032A FI Mitsubishi Fuso (herein after referred to as the suit motor vehicle). In his plaint, the Plaintiff alleged that the Defendant had breached the terms of warranty, firstly by selling to him a motor vehicle that was mechanically defective, and secondly by failing to repair the motor vehicle in time as per the conditions of the Warranty.

Contemporaneous with filing suit, the Plaintiff filed an application under Order 40 of the Civil Procedure Rules seeking an order of this court to compel the Defendant to repair the suit motor vehicle and thereafter release it to him. In the alternative, the Plaintiff urged the court to order the Defendant to provide him with an equivalent motor vehicle. The Plaintiff further sought for orders of the court to compel the defendant to service his loan to NCBA Bank to the sum of Kshs 93,000/- per month with effect from 19th January 2021 until the date that the Defendant will release the said motor vehicle to him. The grounds in support of the application are on the face of the application. The application is supported by the annexed affidavit of the Plaintiff. The Plaintiff swore a supplementary affidavit in further support of the application.

The application is opposed. Peter Nderitu, the Defendant’s After-sales manager swore a replying affidavit in opposition to the application. In the affidavit, he averred that the warranty that the Plaintiff enjoyed had expired at the time the Plaintiff delivered the motor vehicle to the Defendant’s garage for repairs. He stated that the Plaintiff refused to take back custody of the motor vehicle after it had been repaired. The Plaintiff did this after he refused to pay the repair charges that had been incurred. He denied the assertion by the Plaintiff that the Defendant was under obligation to repair the Plaintiff’s motor vehicle free of charge beyond the warranty period. He stated that the defendant was under no obligation to pay the Plaintiff’s loan. This was an issue between the Plaintiff and his bankers. He was of the view that the court cannot grant the orders craved for by the Plaintiff, because to do so, would occasion injustice of the Defendant who was entitled to pay storage charges in the period that it has had the motor vehicle in its possession.

During the hearing of the application, this court heard oral rival submission made by the Plaintiff, who was acting in person and Mr. Samba who was acting for the Defendant. This court has carefully considered the said submission. It also had the benefit of perusing the pleadings and affidavits filed by the parties in support of their respective opposing positions. The Plaintiff seeks orders of mandatory injunction which can only be granted under the circumstances envisaged by the following two Court of Appeal decisions:

1. Kenya Breweries Ltd & Another Vs Washington O. Okeyo [2002] eKLR, where it held thus;

“ A mandatory injunction ought not to be granted on an interlocutory application in the absence or special circumstances, and then only in clear cases either where the court thought that the matter ought to be decided at once or where the injunction was directed at a simple and summary act which could be easily remedied or where the defendant had attempted to steal a march on the plaintiff. Moreover, before granting a mandatory interlocutory injunction, the court had to feel a higher degree of assurance that at the trial it would appear that the injunction had rightly been granted, that being a different and higher standard than was required for a prohibitory injunction.”

2. Nation media Group & 2 Others Vs John Harun Mwau [2014] eKLR, where the court held ;

“ It is trite law that for an interlocutory mandatory injunction to issue, an applicant must demonstrate existence of special circumstances … A different standard higher than that in prohibitory inunction is required before an interlocutory mandatory injunction is granted. Besides existence of exceptional and special circumstances must be demonstrate as we have stated a mandatory injunction can only be granted in exceptional and in the clearest of cases.”

In the present application, certain facts are not in dispute:

i) It is not disputed that the Plaintiff purchased motor vehicle Registration no. KCS 032A Mitsubishi Fuso FI from the Defendant. The motor vehicle was purchased on 8th October 2018.

ii) The plaintiff purchased the motor vehicle substantially using an asset finance from NCBA Bank. The plaintiff was required to pay a monthly instalment of Kshs 93,000/- until payment in full.

iii) Both the Plaintiff and the Defendant agree that the purchase of the said motor vehicle was subject to a warranty. The Defendant agreed to repair the said motor vehicle in the event that the motor vehicle had defective parts or was subjected to poor workmanship during its service.

iv) However, the Plaintiff and the Defendant are not agreed as to the period of warranty. Whereas the Plaintiff insist that the warranty covered a period of four (4) years or 200,000 kilometres whichever will be earlier, the Defendant insists that the warranty at the time was for a period of two (2) years or 100,000 kilometres.

v) It is this dispute that resulted in the Plaintiff refusing to pay for the repairs that had been undertaken on the motor vehicle from 19th January 2021 to March 2021. The Plaintiff is adamant that the repair of the motor vehicle was covered by the warranty at the material time since the period of warranty had not expired. On the other hand, the Defendant is of the view that the period of warranty had expired and therefore the Plaintiff ought to pay for the costs of repair.

vi) There was evidence to suggest that from the time the Plaintiff purchased the motor vehicle, it suffered mechanical failures which appears to have been contributed either by defective parts or poor workmanship. To the credit of the Defendant, it repaired the motor vehicle until the particular incident that is subject to this case.

vii) Whereas the Defendant insisted that it only repaired the motor vehicle within the period of warranty, it was apparent from the affidavit of Peter Nderitu that the Defendant continue repairing and servicing the said vehicle even beyond the period that it considered to have been covered by the warranty. In paragraph 10 of his affidavit, he stated thus:

“ The Respondent in good faith and in the spirit of retaining its customer, serviced the Applicant’s truck every time it broke down during and even after the expiry of the warranty but he is either mistaken or deliberately thinks there still exists some right to enforce against the Respondent beyond the terms of the warranty.”

viii) From the documentary evidence presented to court by both the Plaintiff and the Defendant, It is not clear which warranty was agreed between the Plaintiff and the Defendant. That is an issue that cannot be resolved in an application such as the present one without the parties adducing oral evidence to clear the apparent contradiction.

In the premises therefore, this court formed the view that the Plaintiff had not established the existence of special circumstances and a prima facie case to entitle this court grant the orders of mandatory injunction sought. It appears that the Plaintiff is under the impression that the court can compel the defendant to release the motor vehicle to him in good mechanical repair where it is evident that there is a dispute regarding whether the said repairs were subject to warranty or not.

Further, this court formed the opinion that even as the Plaintiff is pursuing the enforcement of his rights in the contractual agreement, he was under obligation to mitigate his loss. There is nothing that prevented him from paying the cost of repair of the said motor vehicle and then claim the same from the court as special damages if he is able to establish the applicable warranty.

In the premises therefore, this court holds that the Plaintiff’s application has not met the threshold for the grant of mandatory injunction. The same is dismissed with costs to the Defendant.

DATED at KITALE this 3rd day of March 2022.

L. KIMARU

JUDGE