Audi v Ukristo Na Ufanisi Savings & Co-operative Society Limited (Tribunal Case E787 of 2025) [2026] KECOPT 334 (KLR) (27 August 2026) (Ruling)

**** **REPUBLIC OF KENYA** **IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI** **TRIBUNAL CASE NO. E787 OF 2025** **(Hon. J. Mwatsama- Chairperson, Hon. B. Sawe- Member, Hon. F. Lotuiya- Member, Hon. P. Aol- Member, Hon. M. Chesikaw-Member)** **KENNEDY ODHIAMBO AUDI …….……….………………….…CLAIMANT** **VERSUS** **UKRISTO NA UFANISI SAVINGS & CO-OPERATIVE SOCIETY LIMITED………………………………………………………. RESPONDENT** **RULING OF THE TRIBUNAL** 1. The matter for determination is Notice of Motion dated 8/9/20245. The Application seeks for orders: 2. Spent 3. A Temporary Injunction does issue restraining the Respondent, its assignees, agents, auctioneers including Messrs, Fortune Auctioneers and or any person acting under its instructions from advertising, auctioning, selling and or alienating the Claimant’s parcel of land, **title number KAJIADO/KAPUTIEI NORTH/115061** pending the hearing of this application. 4. A Temporary Injunction does issue restraining the Respondent, its assignees, agents, auctioneers including Messrs, Fortune Auctioneers and or any person acting under its instructions from advertising, auctioning, selling and or alienating the Claimant’s parcel of land, **title number KAJIADO/KAPUTIEI NORTH/115061** pending the hearing of this suit. 5. Costs of this application be provided for. 6. The Application is supported by the Affidavit in support of Kennedy Odhiambo Audi sworn on 8th September, 2025 where he states he secured a loan of Kshs. 1,193,000.00/= in the year 2021 with a repayment period of 36 months and monthly instalment payment of Kshs.45,069.00/=. 7. There was a charge on Claimant/Applicant parcel of **land title number KAJIADO/KAPUTIEI NORTH/115061** to secure the loan and at the time, that is, January 2021 the marker value was Kshs. 1,200,000.00/= 8. Claimant admits having defaulted the loan and issued with Statutory Notices dated 16/3/2022 and 20/6/2022 respectively. However, the parties filed a consent for property to be sold as per attached document ***KNA5***. The sale did not take place and in August 2025 and another public auction was set. 9. The Claimant/Applicant wishes to sell the property via private treaty to get a good price, since the Respondent did not get a purchaser, he requests for the sale to be conducted fairly at the current market value of land. 10. The Respondent filed Replying Affidavit sworn by Dennis Kabiru Mwangi on 17th March 2026 where they opposed the Notice of Motion Application dated 8th September 2025 and replied as follows: they confirmed Claimant/Applicant was advanced loan facility of Kshs. 1,200,000.00/= with monthly repayment of Kshs. 45,068.89/= for a period of three years. 11. The Claimant/Applicant defaulted and as at 16th March 2022 the amount owing was Kshs.1,225,233.60/= with accruing interests and penalties. Claimant/Applicant failed to make the amount due and Claimant was served with requisite document for sale and public auction scheduled for 10th January 2023. The said sale did not attract any purchasers at the reserved price and or forced sale where and sale process was halted. 12. The Respondent confirm they engaged with Claimant/Applicant with a view to settle the matter amicably in July 2025. Claimant was given his Loan Account Statements. A second advert for the auction was scheduled for 1st September 2025 and they attached the Valuation Report dated 29th August 2025 with forced value of Kshs.1,500,000.00/=. Respondent aver Claimant does not deny default and Respondent is simply exercising their right to sale. 13. The Respondent states the Claimant has been aware of the default since 2022 and only moved Tribunal to delay Respondent from releasing their security. Claimant/Applicant application is an afterthought to mislead the Tribunal. Claimant has failed to satisfy the **principles of Giella -vs- Cassman Brown** and Notice of Motion dated 8th September 2025 is to be dismissed. 14. Claimant/Applicant filed written submissions dated 13th March 2026 while Respondent did not file any written submissions as at the date of writing this ruling. We note the Claimant’s written submissions insinuating the Application to be undefended which is not the case. Having considered all pleadings filed and responses therein the issue for determination is on; 1. ***Issue one:*** ***Whether the Claimant/Applicant has satisfied the grounds for issuance of an Injunction*?** This case is one of loan default. The Claimant/Applicant does not dispute the loan facility advance neither does he dispute the loan default. The Claimant/Applicant does not dispute that for security for the loan he gave **LR No. KAJIADO/KAPUTIEI NORTH/115061** which was changed. 1. The Claimant/Applicant contest is that the sale by public auction is being done illegally and out of malice. However, the Respondent response was clear a notice was given in the year 2022, it did not get any purchaser to purchase land at the forced value and sale was postponed which is the correct thing to do. The Respondent have done/have undertaken due diligence and got a valuation report as per *Section 97 Land Act* 2012 to ensure prior to selling off the charged property by public auction has been undertaken as per their Annexed document ***DKM8*** in the Replying Affidavit sworn on 17th March 2026. 1. In the case of **First Choice Mega Store Ltd -vs- Ecobank Kenya Ltd [2017] eKLR** the court held: ***“It is common ground that a chargee who exercises or seeks to exercise his power of sale owes a duty to take reasonable precaution to obtain the true market value or a proper price for the property at the time which he claims to sell. See Cuckmere Brick Company Ltd -vs- Mutual Finance Ltd [1971] All E.R. 633, Yorkshire Bank Plc -vs- Hall [1999] All E.R. 879 and Madhupaper International Ltd -vs- Paddy Kerr and Others [1986] LLR 2396 (CAW). The charge is expected to act honestly and without reckless disregard for the charger’s interests. This duty, which had its genesis in equity like much if the solicitous concern of equity like much of the interest of charger is now enshrined in statute.*** ***Inscrutably, Section 97 Land Act imputes the duty to obtain the best possible price reasonably obtainable at the time of sale. The charge is under a duty, in the circumstances, to cause a forced sale value to be ascertained by the value”.*** 1. The Valuation Report date 29th August 2025 gave the suit property a value of Kshs. 2,000,000/= and forced value of Kshs. 1,500,000/=. The Applicant then filed the Application and claim on 8th February 2025 to stop the sale despite him being in default. 2. The Respondent’s right to exercise its statutory power of sale is evident and this Tribunal cannot deny it. The Respondents have shown goodwill and have acted in good faith when in the first auction they did not sell the chargee property because it did not get/receive the required bids and had to comply with its legal obligations. 3. There is no indication that the Claimant/Applicant has been servicing his loan even after the notices were issued to him three years after the first auction was advertised. His contention of interest and penalties accruing is his own doing by not making payment towards the loan. It is clear that the longer the Claimant/Applicant in repayment the more interest and other charges accrue on the outstanding loan balance. 4. The case of **Giella -vs- Cassman Brown** gives the three ingredients which the court ought to consider which granted an injunction: * 1. ***a prima facie case with a probability of success,*** 2. ***proof of irreparable injury not compensable by damages,*** 3. ***a decision based on the balance of convenience if doubt remains.*** The Applicant has failed in showing a prima facie case against Respondent however admitted to default. That is the only excuse the Respondent has, that is, sale of charged property. 1. Secondly, the Applicant has failed to show the imparable harm they are likely to suffer if property is sold. If anything, the Claimant/Applicant is willing to sell the property via private treaty and recover money to repay the loan whichever ways the property would be sold. Thirdly, the balance of probability which in our view lies in favour of Respondent who have been partners with the Applicant and have shown due diligence in the whole time the loan has been default. 1. The prayers in the Notice of Motion dated 8th September 2025 and prayers in the Statement of Claim are almost similar. In conclusion the Tribunal, finds the Notice of Motion dated 8th September 2025 lacks merit and the same is dismissed with costs to the Respondent. The prayers in Statement of Claim dated 8th September 2025 is equally found not to be merited looking at the default of Claimant/Applicant’s claim is dismissed with no orders as to costs. 1. We further make the following orders: * + 1. Respondent shall within 30 days carry out fresh valuation of the charged property LR. No. **KAJIADO/KAPUTIEI NORTH/115061** to determine the forced sale and share report with the Claimant/Applicant. 2. During the 30 days period the Claimant and Respondent are free to engage in any sale via private treaty if no consensus or agreement is reached the Respondent is at liberty to sell the charged property via public auction and conclude the sale through the highest bid. 3. File ordered as closed. Ruling dated and delivered *virtually* at **Nairobi** this **27th** day of **August, 2026.** **Hon. J. Mwatsama Chairperson Signed 27/8/2026** **Hon. B. Sawe Member Signed 27/8/2026** **Hon. P. Aol Member Signed 27/8/2026** **Hon. Fridah Lotuiya Member Signed 27/8/2026** **Hon. M. Chesikaw Member Signed 27/8/2026** Court Assistant – J. Koki J & J advocate for the Claimant/Applicant - No appearance Wairimu advocate for the Respondent **Hon. J. Mwatsama Chairperson Signed 27/8/2026**