REPUBLIC OF KENYA

IN THE CHIEF MAGISTRATES COURT OF KENYA AT NAKURU

CIVIL SUIT NO 260 OF 2017
SAGOO AUTOMECH LIMITED…………………………………..PLAINTIFF/RESPONDENT
VERSUS
LINDA NYAMBURI ODHIAMBO...………...................................DEFENDANT/APPLICANT

THE PLAINTIFF/RESPONDENT’S SUBMISSIONS IN RESPECT OF THE APPLICATION

DATED 7/4/2017

May it please your Honour,

1. Brief facts of the case
1.1 It is very instructive to note that vide an oral agreement between the Respondent and the
Applicant to purchase a motor vehicle registration number KCB 661A Mazda Demio for Kshs
200,000 the Applicant herein did accept the offer paid the purchase price and was given
possession of the subject motor vehicle.
1.2 It is trite to note that the agreement stipulated inter alia that the Respondent herein does carry
out major repairs on the subject motor vehicle by sourcing for and replacing parts that were in
bad condition which repairs amounted to a sum of Kshs 280,000.
1.3 The Applicant herein made an initial payment of Kshs 100,000 towards the repair costs but
defaulted in making payment of the balance of Kshs 180,000 as agreed and has to date failed
refused and or neglected to make good the said amount owing to the Respondent herein despite
several reminders.
1.4 The Respondent herein thus diligently moved the Court vide a Notice of Motion application
dated 30/3/2017 and obtained orders of temporary mandatory injunction restraining the
Applicant herein from using, tampering and transferring the subject motor vehicle pending the
hearing and determination of the application interpartes which orders the applicant has failed
to obey to-date as she has all along been in use of the subject motor vehicle.
1.5 Upon receipt of the aforementioned order of the Court, the Applicant herein has moved the
Court vide a Notice of Motion Application dated 7/4/2017 seeking to set aside the
aforementioned exparte orders. The Applicant herein has also filed her submissions dated
12/7/2017.
1.6 It is that Application by the Applicant herein which is the basis of these submissions on behalf
of the Respondent herein.

2. RESPONSE TO THE DEFENDANT/APPLICANT’S SUBMISSIONS

2.1. First and foremost, the Respondent herein does sternly associate itself with its supporting
affidavit deponed to by one Harjit Singh Sagoo in support of its application dated 30/3/2017.

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 2.2. Further, we submit on behalf of the Respondent herein that the Applicant’s application dated
7/4/2017 is a desperate attempt to delay the just conclusion of this matter since the said
application discloses no basis whatsoever known to law to warrant this honorable Court to set
aside the exparte orders of 4/4/2017.

2.3. Indeed it is the Respondent’s submission that the Applicant’s submissions dated 12/7/2017
and filed on even date are anchored on two limbs being that;

1. The Respondent’s application dated 30/3/2017 did not reveal its legal status; and
2. There was material concealment of facts.
We shall address each of these limbs as hereunder;

3.0. LEGAL STATUS OF THE RESPONDENT (SAGOO AUTOMECH LTD)

3.1 Your Honour, it is paramount to note that in the Plaint filed by the Respondent herein on
30/3/2017 and which instituted this suit, at paragraph 1, the legal status of the Respondent
herein as a limited liability company duly incorporated under the companies Act cap 486
has been duly revealed.

3.2 Further, in the affidavit in support of the Respondent’s application dated 30/3/2017, the
deponent, one Harjit Singh Sagoo swears that he is a Director of the Plaintiff Company.
Again, the legal status of the Respondent herein as a body corporate has been duly revealed.

3.3 It is trite concept that a body corporate draws its legal status from statute and in this case the
governing statute is the Companies Act Cap 486 Laws of Kenya of which the Respondent
herein has been duly incorporated.

Conclusion
We conclude under this head that the legal status of the Respondent herein has been rightly
revealed throughout the pleadings herein and as such the Applicant’s assertion that the
application by the Respondent dated 30/3/2017 did not reveal the Respondent’s legal status
thus in breach of the law as regards competence and locus MUST therefore fail in its entirety
as the application by the Respondent was competent and furthermore in the apt eyes and mind
of the Honourable Court, the application was merited to warrant an order of injunction.

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4 CONCEALMENT OF MATERIAL FACTS
4.1 Your Honour, the Applicant’s herein further advance a second limb as a ground to set aside the
Honorable Court’s order of 4/4/2017 that there was material concealment of facts.
4.2 Indeed we submit on behalf of the Respondent herein that it is trite law as stipulated under
Order 40 of the Civil Procedure Rules that for an order of injunction to be issued, the Court has
to be convinced that there is ;
a. A prima facie case with high chances of success;
b. Irreparable injury that cannot be compensated in damages; and
c. A balance of convenience in favour of the Applicant.
4.3. It is our cogent submission your Honour that the honorable Court while granting the exparte
injunctive orders of 4/4/2017 was indeed satisfied by the material presented before it in the
Respondent’s application dated 30/3/2017. A prima facie case with chances of success was
indeed established being default in payment by the Applicant of a sum of Kshs 180,000 being
outstanding balance of repair costs done on the subject motor vehicle and owing to the
Respondent herein.
4.4. Further, the Court’s order was to the effect to restrain the Applicant herein from using,
tampering and transferring the subject motor vehicle pending the hearing and determination
of the application interpartes. Indeed the concomitant effect of that order was to safe guard
the Respondent’s interests that cannot be compensated by damages once the subject motor
vehicle is disposed.
4.5 We further submit that indeed a critical analysis of the pleadings and evidence adduced by
both parties herein, it is not in dispute that the Applicant indeed did purchase the subject
motor vehicle from the Respondent. It is also not in dispute that an oral agreement was
entered into as between the Applicant and the Respondent herein. It is further not in dispute
that indeed the Respondent herein did carry out the said repair works on the subject motor
vehicle as agreed. The only issue in dispute is the amount it cost to undertake the repairs. We
submit on behalf of the Respondent herein that the material and evidence on record indeed
show clearly how the Respondent incurred the said expenses contrary to what is merely
alleged by the Applicant herein being inflation of prices. This therefore satisfies the third
tenet of granting an injunctive order being this suit has a balance of convenience in favour of
the Respondent herein.

Conclusion
We therefore modestly submit under this head that indeed there was no concealment of
material facts whatsoever and the Court’s highest sense of justice was touched by the
Respondent’s application herein dated 30/3/2017 together with all the material evidence

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 supplied to Court and as such the Applicant’s allegations under this head MUST also
necessarily fail.

We urge this Honourable Court to so find.

Dated at Nakuru this 24th day of July 2017

MBATI & ASSOCIATES

ADVOCATES FOR THE PLAINTIFF/RESPONDENT

Drawn and filed by; To be served upon:

Mbati & Associates Odhiambo & Odhiambo
Advocates Advocates
Vicmark Plaza, 2nd Floor West Side Mall, 2nd Floor
P.O Box 2010-20100 P.O Box 15142-20100
NAKURU NAKURU

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