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|Case Number:||Civil Case 47 of 2013|
|Parties:||Donal International Trading Limited & Samuel Varghese v Imperial Bank Limited & George Kimani T/A Murphy Merchants|
|Date Delivered:||04 Oct 2013|
|Court:||High Court at Mombasa|
|Judge(s):||Mary Muhanji Kasango|
|Citation:||Donal International Trading Limited & another v Imperial Bank Limited & another  eKLR|
|Case Outcome:||Application Allowed|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
CIVIL CASE NO. 47 OF 2013
DONAL INTERNATIONAL TRADING LIMITED ……………… 1ST PLAINTIFF
SAMUEL VARGHESE ……………………..…………….……. 2ND PLAINTIFF
V E R S U S
IMPERIAL BANK LIMITED ……………………..……….….. 1ST DEFENDANT
GEORGE KIMANI T/A MURPHY MERCHANTS ……..……. 2ND DEFENDANT
“15. THAT I am aware that we have never signed a Lease or Hire Purchase agreement with the 1st Defendant, the 1st Plaintiff did not purchase any of the motor vehicles attached and or repossessed under any finance agreement or arrangement with the 1st Defendant and it has have (sic) never offered the said motor vehicles as security for the said overdraft or credit advanced to the 1st Plaintiff, therefore the said attachment and or repossession is wrong and amounts to an illegal act. The 2nd Defendant had a duty and ought to have verified the instructions given to him and confirmed that they were correct and by failing to do so, he acted negligently and the Defendants have exposed me and the 1st Plaintiff to damages which they knew or ought to have known.
16.(a) Motor vehicle Registration NO. KAZ 368Z (Toyota Mark II) registered in the 1st Plaintiff’s name is a security for a financial arrangement with another bank in whose custody the Log Book is.
(b) Motor Vehicle Registration No. KBP 290S (Toyota IST) does not belong to the Plaintiffs and is owned by a 3rd party who has claimed it from 2nd Plaintiff who had hired it from a third party for personal use. The owner of the same has demanded that the 2nd Defendant should return the motor vehicle. I produce hereto as exhibits a copy of the Log Book for the vehicle and a letter dated 30th April 2013 and a Search Certificate for the vehicle in a bundle marked ‘SV 3’.
(c) Motor Vehicle Registration No. KBA 762Y (Nissan Cab) though registered in the name of the 1st Plaintiff is not a security for any loan or financial arrangement with the 1st Defendant nor was it purchased through Lease or Hire Purchase arrangement with the 1st Defendant and the Log Book thereof is in the hands of the 1st Plaintiff.
(d) Further, no chattels mortgages or debentures have been registered and or created relating to the said Motor Vehicles.”
“11. That on the 27th March, 2012, the Defendant Bank instructed the 2nd Defendant, M/s Murphy Merchants to establish the physical address, assets and financial status of the Plaintiffs, whose account was overdrawn, with a view to seek advice whether recovery of the outlay was viable. Annexed herewith is a copy of the letter of instructions to Murphy Merchants marked ‘PCN 6’.
It is however to be stated the 1st Defendant did not produce evidence of such Hire Purchase agreement with the 2nd Plaintiff.
“However, by a twist of fate, the Defendant Bank, instructed the 2nd Defendant to establish the physical address, assets and financial status of the Plaintiffs, with the sole purpose of establishing whether recovery of the amount outstanding was viable. The report was received on the 19th April, 2013 and the contents were to the effect that the 1st Plaintiff’s Company’s Managing Director was not a man of straw and as such the recovery was reasonably viable. On the same day the report was received, the Defendant Bank, rather aggrieved by the impassiveness of the 2nd Plaintiff, instructed the 2nd Defendant to collect and repossess the properties identified, albeit inadvertently. The inadvertence, which is excusable, resulted from some email correspondences, and were in reference to sometimes when the 2nd Plaintiff approached the Defendant Bank seeking Hire Purchase Finance in the year 2010 (See annexure “PCN 8” of the Defendants’ Replying Affidavit). Your Lordship, it is as a result of that inadvertence that the Defendants have been dragged to this Honourable Court, although, not as the aggrieved but rather as the perceived aggressors. A company that was in a “financial crisis”, and whose Directors appeared to have vanished into thin air, have finally resurfaced with an application against the Defendant Bank.”
“The test to grant a mandatory injunction or not is correctly stated in Vol. 24 Halbury’s Law of England 4th Edition paragraph 948 which reads:
“A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the Court thinks it ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the Defendant attempts to steal a march on the Plaintiff … a mandatory injunction will be granted on an interlocutory application.””
There are special circumstances in this case justifying that injunction. That is the 1st Defendant has attached the vehicles some which are alleged to belong to third parties who are not parties before this case and in so doing the Defendants have failed to show any legal justification for such attachment.
Dated and delivered at Mombasa this 4th day of October, 2013.