Wanyama v Mogaka (Civil Appeal E019 of 2023) [2025] KEHC 19229 (KLR) (4 December 2025) (Ruling)

Neutral citation: [2025] KEHC 19229 (KLR)

Republic of Kenya

In the High Court at Kakamega

Civil Appeal E019 of 2023

S Mbungi, J

December 4, 2025

Between

Moses Timothy Wanyama

Appellant

and

Stanley Ogamba Mogaka

Respondent

(Being an Appeal arising from the Ruling delivered on 19th January, 2023 in Mumias Magistrates Court Civil Suit No. E004 OF 2023 by Hon. Omondi (PM)

Ruling

1.This is an appeal arising from the ruling of the Senior Principal Magistrate at Mumias delivered on 19^th January 2023 in Civil Case No. E004 of 2022. The trial court allowed the respondent’s application dated 24^th March 2022 seeking temporary injunction to restrain the appellant from repossessing motor vehicle KCA 151P, and dismissed the appellant’s application dated 12^th September 2022 seeking return of the said motor vehicle.

2.The appellant, being aggrieved, filed this appeal through a memorandum of appeal dated 3rd February 2023.

3.The grounds of appeal are:a.That the trial magistrate erred in law and fact by granting the respondent’s application when the respondent had not proved his claim on the required standard.b.That the magistrate failed to consider evidence showing that the appellant had already paid Kshs. 225,000/= which he says was the true loan amount.c.That the magistrate ignored material contradictions in the respondent’s case and failed to evaluate the appellant’s evidence.d.That the magistrate misapplied the principles governing grant of injunctions.

4.The appellant therefore prays that the ruling be set aside.

5.The respondent alleges he advanced the appellant a loan of Kshs. 488,660/= on 11^th January 2022, secured by motor vehicle KCA 151P, under a written loan agreement executed before advocates.

6.The appellant, however, states he only borrowed Kshs. 225,800/= under an agreement dated 25^th December 2021 and that he fully paid this amount by the month of February in 2022. He also alleges the respondent has vandalized the vehicle and refuses to release it.

7.The trial court held that:a.There was no proof the appellant repaid Kshs. 225,000/=.b.The respondent therefore established a prima facie case.

8.The court was doubtful about irreparable injury but found the balance of convenience favoured the respondent and therefore granted the injunction and dismissed the appellant’s application.

9.From the appeal and submissions, the following issues arise:a.Whether the trial magistrate properly applied the principles governing grant of temporary injunctions.b.Whether the trial court failed to consider relevant evidence.c.Whether the ruling should be upheld or set aside.

Analysis

10.This being an appeal, the duty of the court is to analyze a fresh evidence adduced at trial, re-evaluate and reconsider it so as to reach an independent determination bearing in mind the fact of not having seen or heard witnesses who testified. This was insisted in the case of Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, as the court stated that;“This being a first appeal, it is trite law, that this court is not bound necessarily to accept the findings of fact by the court below and that an appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect.”

11.Order 40 rule 1 of the Civil Procedure Rules emphasizes on Cases in which temporary injunction may be granted:“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; or(b)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.”

12.On whether the respondent established a prima facie case, before the trial court were two competing agreements:a.Respondent’s agreement dated 11^th January 2022, showing a loan of Kshs. 488,660/=.b.Appellant’s agreement dated 25^th December 2021, showing Kshs. 225,800/=.

13.The appellant did not attach any proof of repayment of the alleged Kshs 225,800/=. He merely asserted that he paid it.

14.The respondent, on the other hand, had possession of the vehicle as security, a fact not denied.

15.The principles that govern the grant of orders of injunction remain as clearly articulated by the court in Aniello Giella V Cassman Brown & Co. Ltd (1973) EA. 358 and restated in legions decisions such as MM V DCJ & another (1995) eKLR as follows;“The necessary conditions for the grant of an interlocutory injunction were spelt out by Giella V Cassman Brown & Co. Ltd (1973) EA 358. They are that, first an applicant must show a prima facie case with a probability of success; secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages; and thirdly, if the court is in doubt, it will decide an application on a balance of convenience.”

16.As regards prima facie case, the sentiments of the Court of Appeal in Mrao Ltd V First American Bank of Kenya Ltd & 2 others (2003) KLR 125 are instructive as follows:“In civil cases, a prima facie 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 arguable case.”

17.The respondent demonstrated that there was a loan agreement, he is in possession of the security and the appellant has made threats to forcibly repossess the vehicle. The trial court therefore did not err in finding a prima facie case.

18.The trial court found it was not fully convinced that the respondent would suffer irreparable loss. However, it correctly stated that in such doubt, the balance of convenience applied.

19.The respondent is in possession of the vehicle. The doctrine is clear that where property is in possession of one party, and the dispute is unresolved, courts prefer to maintain the status quo. In the case of Kenya Airline Pilots Association (KALPA) Versus Co - Operative Bank of Kenya Limited & another [2020] eKLR”, the purpose of a status quo order was explained as follows:-“... By maintaining the status quo, the court strives to safeguard the situation so that the substratum of the subject matter of the dispute before it is not so eroded or radically changed or that one of the parties before it is not so negatively prejudiced that the status quo ante cannot be restored thereby rendering nugatory its proposed decision.”

20.Releasing the vehicle to the appellant before resolving:a.the true loan amount,b.whether repayment was made,c.the validity of the two agreements, would indeed prejudice the respondent’s security. Thus, the balance of convenience favoured preserving the status quo.

21.On whether the trial court failed to consider evidence, the appellant maintains that his loan agreement shows the true amount. That is an issue for full trial, where the authenticity of both agreements will be examined, possibly with handwriting experts and cross-examination.

22.At the interlocutory stage, the trial magistrate was right not to determine the merits of the two agreements conclusively. There is no indication she ignored relevant evidence.

23.After re-evaluating the record as required of a first appellate court, I find:a.The trial magistrate applied the correct legal principles.b.The ruling was supported by the material before the court.

24.The appellant has not demonstrated any misdirection, misapplication of the law, or improper exercise of judicial discretion.

25.This Court therefore finds no basis to interfere with the ruling.

Orders

26.The appeal lacks merit and is hereby dismissed in its entirety.

27.The ruling of the Senior Principal Magistrate delivered on 19^th January 2023 in Mumias SPM Civil Case No. E004 of 2022 is upheld.

28.Costs of this appeal shall be borne by the appellant.

29.The file is closed

30.Right of Appeal 14 days.

DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 4^TH DAY OF DECEMBER, 2025.S.MBUNGIJUDGEIn the presence of:-CA: Angong’aMs Mideva holding brief for Nekesa for the Respondent present online.Apellant absent.

Date	Case	Court	Judges	Outcome	Appeal outcome
4 December 2025	Wanyama v Mogaka (Civil Appeal E019 of 2023) [2025] KEHC 19229 (KLR) (4 December 2025) (Ruling) This judgment	High Court	S Mbungi
19 January 2023	↳ Civil Suit No. E004 OF 2023	Magistrate's Court	GP Omondi		Dismissed

Wanyama v Mogaka (Civil Appeal E019 of 2023) [2025] KEHC 19229 (KLR) (4 December 2025) (Ruling)

Wanyama v Mogaka (Civil Appeal E019 of 2023) [2025] KEHC 19229 (KLR) (4 December 2025) (Ruling)

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