https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12267

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CIVIL DIVISION** **MISC. CIVIL APPLICATION NO. E1166 OF 2025** **TAUTA OLE LERINKON** .......................................... **APPLICANT** **-VERSUS-** **MOGO AUTO LIMITED** ....................................... **RESPONDENT** **RULING** ***(on motion dated 28/5/2026)*** ***Brief background to the motion*** 1. Before this Court for determination is the Applicant’s **Motion dated 28/5/2026**, brought pursuant to Order 45 Rule 1 of the Civil Procedure Rules, 2010(CPR) and Sections 1A, 1B, and 3A of the Civil Procedure Act (CPA) in which he seeks an order of review of the court's ruling issued on 30/4/2026, with a view to setting it aside together with all consequential and protective relief regarding Motor Vehicle Registration Number KCF 924N, which was pledged as collateral under an Asset Financing Loan Agreement dated 31/5/2023. 2. The record shows that on 31/5/2023, the Applicant entered into an asset financing facility agreement with the Respondent for the principal sum Kshs. 480,000/=. While the facility was disbursed in Kenya Shillings (Kshs.), the repayment obligations were denominated in United States Dollars (USD). 3. On 1/8/2025, the Applicant filed a Notice of Motion in this Court seeking orders to compel the Respondent to regularize the loan facility into Kenya Shillings and recalculate repayments, relying on a decision dated 4/102024 rendered by the Competition Authority of Kenya (CAK**)**. 4. **The Respondent opposed** that application via a Replying Affidavit sworn on 17/9/2025 by its legal officer, **David Irungu Kimani.** Crucially, at Paragraph 10 of the said affidavit, the Respondent explicitly asserted that the CAK directives were confined strictly to the specific accounts before it and that the Applicant was not a party to the CAK proceedings. 5. On 30/4/2026, this Court delivered its Ruling dismissing the Applicant’s Motion. In doing so, the Court held at Paragraphs 16 and 18 that the Applicant *was* a party to the CAK proceedings (referencing Paragraph 8 of the CAK decision) and that he had failed to comply with CAK’s settlement directive to pay Kshs. 500,000/= in four equal monthly installments. ***Applicant’s case*** 1. By the present Notice of Motion dated 28/5/2026, supported by the Applicant's affidavit sworn on the same date, the Applicant prays for the following principal orders: 2. *That this Honourable Court be pleased to review and set aside its ruling delivered on 30/4/2026 in Misc. Civil Appl. No. E1166 of 2025, to the extent that it erroneously found the Applicant to have been a party to the Competition Authority of Kenya (CAK) proceedings and applied settlement directives therein against him.* 3. *That upon review, the Court does reconsider the Applicant's prayers in the Notice of Motion dated 1/8/2025 for regularization of the loan agreement into Kenya Shillings and recalculation of excess payments.* 4. *That pending review/determination, interim orders issue restraining the Respondent from selling, transferring, or interfering with Motor Vehicle Registration Number KCF 924N.* 5. *Costs of the application.* **Applicant’s case** 1. The Applicant contends that the findingin the Ruling of 30/4/2026 holding that he was a complainant named in Paragraph 8 of the CAK decision dated 4/10/2024 and subject to its specific settlement terms constitutes an error apparent on the face of the record. 2. The Applicant points out that Exhibit **"TO-1"** (the CAK Decision summary dated 4/10/2024) lists four anonymous customer complaints investigated by the Authority, none of which name the Applicant. Furthermore, the Respondent itself had expressly admitted in its Replying Affidavit of 17/9/2025 that the Applicant was not a party to those CAK proceedings. **Respondent’s case** 1. The Respondent opposed the application through a Replying Affidavit sworn on 1/7/2026 by Mordecai Gitau Wainaina, along with written submissions dated 13/7/2026 on grounds that 1. *The current application is incompetent and an abuse of court process, as it is an appeal disguised as a review application;* 2. *An error apparent on the face of the record must be self-evident, obvious, and requiring no elaborate argument or re-evaluation of evidence, citing the decision in Sime Darby Oils Professional SDN, BHD v Nairobi Beauty World Ltd [2026] KEHC 9198 (KLR).* 3. *The Court consciously analyzed the CAK decision as a whole and interpreted it to cover the Applicant as part of the class of affected customers, arguing that where two opinions can reasonably be formed on the interpretation of a document, it cannot constitute an error apparent on the face of the record, and the proper remedy is an appeal as held in Mwangi & another v Gikonyo & another [2026] KEELC 1881 (KLR).* 4. *The Applicant failed to comply with loan terms, and the Respondent was legally entitled to realize its security.* **Issues for Determination** 1. Having considered the application, the parties’ respective affidavit material placed before the court and the rival submissions of counsel, the primary issues crystallize as follows: 2. *Whether the finding in the Ruling dated 30/4/2026 that the Applicant was a party to the CAK proceedings and bound by its specific settlement terms constitute an error apparent on the face of the record under Order 45 Rule 1 of the CPR.* 3. *If answered in the affirmative, whether the Ruling dated 30/4/2026 ought to be set aside and the Applicant’s Motion dated 1/8/2025 be re-evaluated on its merits.* 4. *What consequential orders, including protective relief and costs, ought to issue.* **Analysis and Determination** ***Error Apparent on the Face of the Record*** 1. The statutory foundation for review is anchored in **Order 45** **Rule 1(1)** of the Civil Procedure Rules, 2010, which provides: *"Any person considering himself aggrieved—(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is allowed, and who from the discovery of new and important matter or evidence... or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order."* 1. The scope of an *"error apparent on the face of the record"* is well established in Kenyan jurisprudence. In the landmark decision of **National Bank of Kenya Ltd v. Ndungu Njau [1997] eKLR**, the Court of Appeal settled the threshold and held as follows; *"A review may be granted where there is a decision given on an error apparent on the face of the record... An error apparent on the face of the record must be such as would strike one on a mere looking at the record and would not require any long-drawn process of reasoning on points where there may conceivably be two opinions****."*** 1. Applying these legal principles to the case at hand, this Court must examine the record as it stood when the Ruling of 30th April 2026 was rendered: 2. **Paragraph 16 of the Ruling** **states,** “*In the first instance, it is not correct nor true that the Applicant herein was not party to the complaints and decision of CAK dated 4/10/2024. A perusal of Paragraph 8 captured above confirms that indeed the Applicant Tauta ole Lerinkon was one of the Complainants and therefore properly suited..."* 3. **Paragraph 18 of the Ruling states,** *"CAK made a finding that the complainant, to wit, Tauta Ole Lerinkon, to pay to Mugo Auto Limited Kshs. 500,000/= as the final outstanding loan amount, in four equal monthly installments..."* 4. A plain reading of **Exhibit "TO-1"** (the CAK Decision dated 4/10/2024) reveals the following indisputable facts: * 1. *The document is a public enforcement notice summarizing findings on four specific complaints lodged between May 2023 and April 2024.* 2. *Paragraph 8 of Exhibit "TO-1" describes the grievance of the third complainant (a loan of KES 310,000/= for motor vehicle financing).* ***Nowhere in Paragraph 8, nor anywhere in Exhibit "TO-1", does the name "Tauta Ole Lerinkon" appear.*** 3. *Paragraph 18 of the Ruling attributed a settlement order (payment of KES 500,000/= in four installments) specifically to Tauta Ole Lerinkon. However, Exhibit "TO-1" makes no such finding against the Applicant.* 5. Most significantly, in the Respondent's own Replying Affidavit dated 17/9/2025, sworn by David Irungu Kimani, the Respondent explicitly averred at Paragraph 10 thus; *"On the CAK decision, the Respondent avers that... CAK directions were confined strictly on the specific accounts that were the subject of proceedings before it; that the Applicant hereto was not a party; and therefore the motion is misconceived..."* 1. Thus, there existed an absolute consensus between the Applicant and the Respondent on the record that Tauta Ole Lerinkon was not a named complainant in the CAK proceedings. 2. The holding in the Ruling of 30/4/2026 which stated that the Applicant was specifically named in Paragraph 8 of the CAK decision and was personally bound by, and in default of, a CAK order to pay KES 500,000/= in four installments was a factual misdirection. This was not a matter of judicial discretion or alternative interpretation of evidence; it was an inadvertent misreading of Exhibit "TO-1" and a direct contradiction of the Respondent's own pleadings. 3. This Court finds that such an inadvertent misapprehension of the record is manifest, self-evident upon a cursory glance at Exhibit "TO-1" and the Replying Affidavit, and does not require elaborate argument. It constitutes a textbook error apparent on the face of the record under Order 45 Rule 1 CPR. ***Re-evaluation of the Substantive Motion dated 1st August 2025*** 1. Having established that the Ruling of 30/4/2026 was anchored on a clear error of fact, the finding that the Applicant was in breach of CAK's specific settlement directives cannot stand. 2. **Consequently, the court finds that the review application by the instant motion must be allowed. Following therefore, the Ruling dated 30/4/2026 is set aside, and the core legal question raised in the original Motion dated 1/8/2025 ought to be evaluated afresh.** **Motion dated 1/8/2025**, 1. The Applicant sought to rely on the CAK Regulatory Decision of 4/10/2024 as a regulatory precedent declaring the Respondent’s lending model disbursing in Kenya Shillings while pegging repayment obligations and interest to USD as deceptive, unconscionable, and contrary to **Sections 55(b)(i) and 56 of the Competition Act (Cap 504)**. 2. The Respondent contended that the CAK decision was strictly *inter partes* to the four complainants and could not automatically invalidate or alter existing contractual agreements with non-parties without a formal suit or specific order. 3. This Court observes that while the CAK decision dated 4/10/2024 established systemic regulatory violations by the Respondent regarding USD indexed facilities, the enforcement of administrative penalties under Section 38 or 70 of the Competition Act does not automatically rewrite individual, adjudicated private loan contracts via a Miscellaneous Civil Application. 4. As correctly noted in Paragraph 26 of the previous Ruling, substantive determination of contractual rights, declaration of unconscionability under **Cap 504**, full accounting of transactions, and permanent re-opening of accounts must be instituted through a primary suit, to wit, Plaint or Petition pursuant to **Order 3 Rule 1 of the CPR,** where full discovery and oral evidence may be adduced. 5. However, given that the Respondent engaged in dual-currency loan indexing which CAK formally censured as unconscionable, and considering that the Respondent attached the Applicant's Motor Vehicle KCF 924N on account of disputed foreign exchange arrears, the court finds that the Applicant has established a strong *prima facie* case for interim protective orders to preserve the subject matter pending the regular re-calculation and/or adjudication of the underlying facility. ***Consequential & Protective Orders*** 1. Section 1A and 1B of the CPA mandates this Court to facilitate the just, proportionate, and expeditious resolution of disputes. During the pendency of these review proceedings, the Respondent proceeded with enforcement actions over Motor Vehicle **KCF 924N**. To ensure equity and justice, and to prevent irremediable prejudice following the attachment of the said vehicle, subject to ; * 1. *If the attached vehicle has not been auctioned, as at this ruling date; its alienation must be halted immediately.* 2. *If the vehicle has already been auctioned during these proceedings, the Respondent must provide a full, certified accounting of the distress process, the realization proceeds, and how those proceeds have been credited against the principal loan balance calculated in Kenya Shillings.* **Final Disposition** 1. Consequent to the above analysis, this Court issues the following orders:- 2. **The Notice of motion application dated 28/5/2026 be and is hereby allowed.** 3. **The ruling delivered by this Court on 30/4/2026 in Misc. Civil Application No. E1166 of 2025 be and is hereby reviewed and set aside.** 4. **It is hereby declared that the Applicant (Tauta Ole Lerinkon) was not a direct complainant and or party to the Competition Authority of Kenya (CAK) settlement proceedings dated 4/10/2024, and that the specific settlement payment schedule contained therein does not apply to him directly as an order of CAK.** 5. **The Respondent is granted 45 days from date of this ruling to regularize and recalculate all payments made by the Applicant to itself in Kenya shillings under the Loan Facility Agreement No. AGS771622 in terms of prayer (c) and ( (d) of the motion dated 1/8/2025.** 6. **In the meantime, an interim injunction, for 90 days, is hereby issued restraining the Respondent, whether by itself, its officers, servants, agents, or auctioneers, from selling, transferring, disposing of or in any manner interfering with Motor Vehicle Registration Number KCF 924N.** 7. **In the event that Motor Vehicle Registration Number KCF 924N has already been sold in execution prior to delivery of this ruling, the Respondent is hereby directed to file and serve within thirty (30) days of this ruling a full, itemized statement of account showing:-** * 1. **The exact principal balance in Kenya Shillings as at the date of attachment;** 2. **The gross proceeds realized from the auction; and** 3. **The itemized disbursement of auction proceeds and any surplus credited and or refundable to the Applicant.** 4. **Either party is at liberty to file a substantive suit within ninety (90) days from the date hereof for final adjudication and accounting of the loan agreement in Kenya Shillings should the parties not reach an amicable settlement of the dispute.** 5. **Each party is directed to bear its own costs of the application.** **Orders accordingly.** **Delivered Dated and Signed at Nairobi this 30th Day of July 2026.** **……………………….** **JANET MULWA.** **JUDGE**