https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9206

Njau v Progressive Credit Ltd & another (Civil Appeal E008 of 2025) [2026] KEHC 9206 (KLR) (22 June 2026) (Judgment) Neutral citation: [2026] KEHC 9206 (KLR) Republic of Kenya In the High Court at Nyeri Civil Appeal E008 of 2025 DKN Magare, J June 22, 2026 Between Peter Waititu Njau Plaintiff and Progressive Credit Limited 1st Respondent Optiwise Auctioneers 2nd Respondent Judgment 1.This appeal arises from the ruling and order of Hon. C.K. Obara (CM) delivered on 28.1.2025 in Nyeri CMCC No. E243 of 2023. By the Application dated 30.11.2023, the Appellant sought a temporary injunction against the Respondents and their servants from attaching or selling or auctioning of the goods proclaimed pending the hearing and determination of the main suit. The grounds of the application were stated on its face as well as the supporting affidavit of the Appellant of the even date as follows:a.The auctioneers were currently tracking motor vehicle registration number KCX 673R for attachment hence real danger.b.The Respondent was purporting to claim incorrect amount of Ksh. 6,309,239.20/= and a penalty of Ksh. 204,216/=.c.Entire purchase price per the agreement was Ksh. 4,300,000/=.d.The security was motorvehicle KHMA 358Q wheel loader. 2.The Respondent filed a replying affidavit sworn on 19.12.2023 stating as follows:i.The Respondent advanced to the Appellant a total loan facility of Ksh. 5,672,678/= vide letter of offer dated 23.8.2023.ii.Motor vehicles KCX 673R, KCW 917Q and KHMA 358Q were offered as security alongside household chattels.iii.The Appellant defaulted and the Respondent proclaimed as of right since arrears had grown to Ksh. 6,288,239.20/=.iv.The auctioneer gave 7 days’ notice and proceeded to attach the goods. 3.The Appellant also filed an application dated 8.5.2025 to this court seeking an unconditional order for the release of motorvehicle KCX 673R. The said motor vehicle, from the common position of the parties has since been sold and transferred to a third party. 4.The lower court considered the application and dismissed it. Aggrieved, the Appellant lodged the Memorandum of Appeal dated 27.2.2025. The material ground was that the lower court erred in not finding a prima facie case in favour of the Appellant and thereby granting a consequential temporary injunction. Submissions 5.The Appellant did not file submissions. The 1st Respondent filed undated submissions. It was submitted that grant or refusal of an injunction is a discretionary remedy exercised by the trial court based on the facts and evidence presented. Relance was placed on the case of Kimongo v Shrink Pack Limited [2024] KECA 678 (KLR), where the Court of appeal [MA Warsame, S ole Kantai & JM Mativo, JJA] held as follows:The general principles on when an appellate court may interfere with a discretionary power of a trial are now well settled. This Court can only interfere with the exercise of judicial discretion by a lower court in very limited circumstances. The East African Court of Appeal in Mbogo & Another vs Shah, [1968] EA, set out the applicable principles as follows:“An appellate court will not interfere with the exercise of the trial court’s discretion unless it is satisfied that the court in exercising its discretion misdirected itself in some matters and as a result arrived at a decision that was erroneous, or unless it is manifest from the case as a whole that the court has been clearly wrong in the exercise of judicial discretion and that as a result there has been injustice.”35.In the words of this Court in Kenya Revenue Authority & 2 others v Darasa Investments Limited [2018] eKLR:“The Court ought not to interfere with the exercise of such discretion unless it is satisfied that the Judge misdirected himself in some matter and as a result arrived at a wrong decision, or that it be manifest from the case as a whole that the Judge was clearly wrong in the exercise of discretion and occasioned injustice." 6.Further, it was submitted that the Appellant failed to satisfy the principles governing the grant of an injunction which are well settled in Giella v Cassman Brown & Co. Ltd, namely: establishment of a prima facie case; demonstration of irreparable harm; and balance of convenience. 7.It was submitted that the appeal is overtaken by events since two of the motor vehicles registration number KHMA 358Q and KCW 917Q that had been offered as security for the loan facility advanced by the 1st Respondent to the Appellant have lawfully been auctioned in order to recover part of the outstanding arrears owed to the 1st Respondent. 8.The appeal, according to the 1st Respondent was an abuse of the court process. 9.The 2nd Respondent filed submissions dated 14.5.2026 and submitted that the court properly evaluated the conditions necessary for granting a temporary injunction as established in the case of Giella v. Cassman Brown & Co. Ltd [1973] EA 358. 10.It was submitted that the proclaimed goods were procedurally sold and the 2nd Respondent was an agent of the disclosed principal who properly exercised its role. They relied on the case of Antony Francis Wareham t/a AF Wareham & 2 others v Kenya Post Office Savings Bank [2004] KECA 166 (KLR), where the court of appeal posited as follows:It was also prima facie imperative that the Court should have dismissed the respondent’s claim against the second and third appellants for they were impleaded as agents of a disclosed principal contrary to the clear principle of common law that where the principal is disclosed, the agent is not to be sued. Furthermore, the Court having found on the evidence that the second and third appellants were principals in their own right and not agents of the first appellant in the transaction giving rise to the suit, it should have dismissed the suit against the first appellant who had been sued as the principal. 11.The matter was ordered to proceed by way of submissions. Analysis 12.This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand. 13.In the case of Mbogo and Another vs. Shah [1968] EA 93 the Court stated:“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.” 14.The duty of the first appellate Court was settled long ago by Clement De Lestang, VP, Duffus and Law JJA, in the locus classicus case of Selle and another Vs Associated Motor Board Company and Others [1968]EA 123, where the Judges in their usual gusto, held by as follows;-“.. this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.” 15.However, this matter did not involve taking of evidence. Therefore, the court will have a higher latitude. This was so decided in the case of Sugut v Jemutai & 3 others (Civil Appeal 110 of 2018) [2023] KECA 202 (KLR) where, P. O Kiage JA stated as doth:“I have carefully considered those rival submissions by counsel in light of the record and the bundles of authorities placed before us. I have done so mindful of our role as a first appellate court to proceed by way of re-hearing and to subject the entire evidence to a fresh and exhaustive re-evaluation so as to arrive at our own independent conclusions. See Rule 29(1) of the Court of Appeal Rules 2010; Selle Vs Associated Motor Boat Co [1968] EA 123). I do accord due respect to the factual fndings of the trial court out of an appreciation that it had the advantage, which we do not, of having seen and heard the witnesses as they testified. I am, however, not bound to accept any such findings if it appears that the judge failed to take any particular circumstance into account or they were based on no evidence or were otherwise plainly wrong. I note from the record before us that the learned Judge may not have been in a fully advantageous position in that regard having taken up the case when it was already half-way heard. Her conclusions on the evidence and findings of fact were therefore from a reading of what was recorded by the previous judge.” 16.The singular issue that presents for this Court’s determination is whether the Appellant had fulfilled the legal threshold for the grant of a temporary injunction pending the hearing and determination of the suit, and where the lower court erred in not giving it. The interlocutory appeals of this nature are powder kegs that can explode or implode on the face of the court. The court handling such matters must therefore draw lines in the sand between the issues that would go to full trial in the lower court and the issues necessary to establish the conditions for the grant of a temporary injunction at an interim stage, to avoid unnecessary embarrassment by wading into disputed questions of fact. In the case of Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR), the court of appeal [RO Kwach, SEO Bosire & EO O'Kubasu, JJA] posited as follows:As I stated at the beginning of this judgment, this is an interlocutory appeal. The dispute between the parties is still outstanding. We were informed from the bar that a hearing date for the case has not been set. So care must be exercised to obviate the risk of trespassing on the jurisdiction of the judge who will eventually hear the case. The learned Commissioner of Assize quite properly reminded himself of the fact that what was before him was an interlocutory application for injunction. But it is quite clear that in several respects he improperly expressed a concluded view of factual issues. It is however, appreciated that it is sometimes difficult to skirt clear of the danger. But that is not to say that the danger cannot be avoided.15.The power of the Court in an application for an interlocutory injunction is discretionary. Such discretion is judicial. And as is always the case judicial discretion has to be exercised on the basis of the law and evidence. And as was stated by this Court in the case of Carl Ronning v Societe Navale Chargeurs Delmas Vieljeux (The Francois Vieljeux) [1984] KLR 1 an appellate court may only interfere with the exercise of judicial discretion if satisfied either;a.The judge misdirected himself on law, orb.That he misapprehended the facts, orc.That he took account of considerations of which he should not have taken an account, ord.That he failed to take account of consideration of which he should have taken account, ore.That his decision, albeit discretionary one, was plainly wrong. 17.The law that governs applications for injunction is premised under Order 40 Rule 1 of the Civil Procedure Rules which provides as follows:1.Where in any suit it is proved by affidavit or otherwise-a)That any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree, orb)That the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit,The court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property as the court thinks fit until the disposal of the suit or until further orders. 18.The principles were laid down in the celebrated case of Giella Vs Cassman Brown & Co Ltd [1973] EA 358 where the court held that in order to qualify for an injunction;(i)First the applicant must show a prima facie case with a probability of success.(ii)Secondly 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.(iii)Thirdly, if the court is in doubt, it will decide an application on a balance of convenience. 19.The court of appeal has settled that the three limbs in Giella Vs Cassman [supra] must follow each other in a sequential manner. If one fails, there is no need to go to the next limb. That court [W Ouko, PO Kiage & K M'Inoti, JJA] in Nguruman Limited v Nielsen & 2 others [2014] KECA 606 (KLR), stated as follows:26.In an interlocutory injunction application, the applicant has to satisfy the triple requirements to;a.Establish his case only at a prima facie level,b.Demonstrate irreparable injury if a temporary injunction is not granted, andc.Ally any doubts as to (b) by showing that the balance of convenience is in his favour.27.These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. See Kenya Commercial Finance Co. Ltd V. Afraha Education Society [2001] Vol. 1 EA 86. If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between.28.It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or both that the question of balance of convenience would arise. The inconvenience to the applicant if interlocutory injunction is refused would be balanced and compared with that of the respondent, if it is granted.29.On the second factor, that the applicant must establish that he “might otherwise” suffer irreparable injury which cannot be adequately remedied by damages in the absence of an injunction, is a threshold requirement and the burden is on the applicant to demonstrate, prima face, the nature and extent of the injury. Speculative injury will not do; there must be more than an unfounded fear or apprehension on the part of the applicant. The equitable remedy of temporary injunction is issued solely to prevent grave and irreparable injury; that is injury that is actual, substantial and demonstrable; injury that cannot “adequately” be compensated by an award of damages. An injury is irreparable where there is no standard by which their amount can be measured with reasonable accuracy or the injury or harm is such a nature that monetary compensation, of whatever amount, will never be adequate remedy. 20.The Appellant was under duty to demonstrate prima facie case with a chance of success and that he would suffer irreparable harm if the goods as proclaimed would end up being sold or that on a balance of convenience, he deserved the orders sought. That is the only issue this court should determine. The suit is still pending before the lower court and issues of merit stand to be determined therein. 21.However, the goods have since been sold. The purchaser is not a party to the suit. The title to the goods passed on the fall of the hammer. The goods are beyond the reach of the parties. Secondly, the parties valued the goods before being used as security. Their value is therefore known. Appellant did not plead and show any sentimental or unique noncommercial value that cannot be replaced. Prima facie was defined in Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR), where Bosire JA, posited as follows:16.The principles which guide the Court in deciding whether or not to grant an interlocutory injunction are well settled. In Giella v Cassman Brown to refer to a case which shifts the evidential burden of proof, rather than as giving rise to a legal burden of proof in the manner he was considering, which was in relation to the pleadings that had been put forward in that case. I would certainly think that it would be in the appellant’s interest to adopt a genuine and arguable case standard, rather than one of a prima facie case, the former being, in my opinion, the lesser standard of the two.17.So what is a prima facie case? I would say that in civil cases it 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 as to call for an explanation or rebuttal from the latter.” 22.More importantly, the court is struggling to find the prima facie case. What is genuinely arguable in this matter? Do they say that the sale can be reversed or that they paid fully the debt due? The appellant is not saying that they paid. They are not denying the right to sell. In the absence of facts that will tilt the case to prima facie level, it is not possible to fault the lower court. Having so found, I do not wish to proceed to the next question without affecting the pending determination in the court below on damages. 23.Consequently, I do not see the manner in which the Appellant will be prejudiced by failure of the injunction that he sought in the lower court. This court cannot issued orders setting aside the ruling of the lower court when the property has already been sold, for such orders will be orders in vain. In B v Attorney General [2004] KEHC 2605 (KLR), JB Ojwang, J, as he then was, stated as follows:The Court does not, and ought not to be seen to make orders in vain; otherwise, the Court would be exposed to ridicule, and no agency of the constitutional order would then be left in place to serve as a guarantee for legality, and for the rights of all people. 24.In determining where the balance on convenience lies, considering the facts of this case in totality, I find that the balance of convenience equally does not tilt in favour of the Appellant as he has not demonstrated any prejudice. 25.In view of my above analysis and findings, the conclusion becomes irresistible that the appeal is not merited. 26.This leaves the issue of costs, which is governed by Section 27 of the Civil Procedure Act, which provides as follows:(1)Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.(2)The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such. 27.Costs are generally discretionary. However, the discretion is not arbitrary. The Court of Appeal in the case of Farah Awad Gullet v CMC Motors Group Limited [2018] KECA 158 (KLR) had this to say:It is our finding that the position in law is that costs are at the discretion of the court seized up of the matter with the usual caveat being that such discretion should be exercised judiciously meaning without caprice or whim and on sound reasoning secondly that a court can only withhold costs either partially or wholly from a successful party for good cause to be shown. 28.The Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR), as follows:18.It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference, is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation22.Although there is eminent good sense in the basic rule of costs - that costs follow the event- it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings - a position well illustrated by the considered opinions of this Court in other cases. The relevant question in this particular matter must be, whether or not the circumstances merit an award of costs to the Applicant. 29.The appellant did not prosecute the appeal. The parties are still battling in the lower court. The best order is that each party to bear its own costs. Determination 30.In the upshot, I make orders as follows:a.The appeal is dismissed for want of merit.b.Each party to bear its own costs.c.File is closed. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 22ND DAY OF JUNE, 2026. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:-No appearance for the AppellantMs. Karithu for the 1st RespondentCourt Assistant – Martin