Githaka v Capital Sacco Ltd & another

**REPUBLIC OF KENYA** **IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI** **TRIBUNAL CASE NO. E502 OF 2020** **(Coram: Hon. J. Mwatsama- Chairperson, Hon. B. Sawe- Member, Hon. F. Lotuiya- Member, Hon. M. Chesikaw- Member and Hon. P. Aol- Member.)** **NAOMI KATHURE GITHAKA………..……………CLAIMANT/APPLICANT** **VERSUS** **CAPITAL SACCO LTD ………………..…………………… 1ST RESPONDENT** **I.G RINGER T/A VIEWLINE AUCTIONEERS………………2ND RESPONDENT** **RULING** **Brief background.** 1. The uncontested fact about this case is that in2017 the Claimant borrowed Ksh.2,200,000/= from the Claimant and in 2018 she borrowed another Ksh.300,000/= both of which were secured by registered charges of land registered as NGANDORI/KIRIGI/188 and NGANDORI/KIRIGI/T.206. As fate would have it, she defaulted to repay the loan and the interest as per the terms of the Loan agreement. 2. Upon default, the 1st Respondent issued a notice dated 4th September 2019 pursuant to Section 90(1) (2) (3) (e) as read with Sections 85 and 103 of the Land Act 2012. In retrospect, the Claimant filed a Notice of Motion dated 17th December 2020 seeking for orders of Temporary Injunction to restrain the 1st Respondents from selling the lands pending the hearing and determination of the application. The Tribunal granted the orders prayed vide a ruling dated 19th August 2021 with some condition on the face of ruling. **The present claim.** 1. Before the Tribunal for determination is another Notice of Motion Application dated 4th August 2025 filed by the Claimant seeking for orders: 2. Spent 3. That the Respondent and/or their agent (s) and/or servant (s) and or employee (s) be restrained by way of a temporary injunction from disposing, alienating, selling and/ or in any other manner from dealing with the properties known as TITLE NO. NGANDORI/KIRIGI/T.188 and NGANDORI/KIRIGI/T.206 pending the hearing and determination of this application inter-parties. 4. That the Respondent and/or their agent (s) and/or servant (s) and or employee (s) be restrained by way of a temporary injunction from disposing, alienating, selling and/ or in any other manner from dealing with the properties known as TITLE NO. NGANDORI/KIRIGI/T.188 and NGANDORI/KIRIGI/T.206 pending the hearing and determination of this application inter-parties. 5. That the Claimant be allowed to sell the properties by way of private treaty and remit the proceeds to the 1st Respondent so as to fetch the maximum value in the interest of all the parties 6. That the costs of this Application be provided for. 7. The Application is supported by the Claimant’s Affidavit sworn on even date and is premised on the grounds that: 8. The 1st Respondent instructed the 2nd Respondent trading as VIEWLINE AUCTINEERS to sale by public auction on 7th August 2025 the charged properties which she used as security to secure the loan from the 1st respondent. 9. That the Notice for Sale was not served on her. 10. That the Claimant approached the 1st Respondent to supply her with a copy of the title deed so as to organize for the sale of the properties by a private treaty to ensure that the best proceeds are realized 11. That the Claimant is poised to suffer substantial loss and injury if the Application is dismissed. **The 1ST Respondents Response.** 1. Through a replying affidavit sworn by Frankline Mwiti Muriungi dated 2nd September 2025, the Respondents opposed the Claimant’s Application and stated that the auction was conducted on 8th August 2025 and the property NGANDORI/KIRIGI/T.188 was sold by public auction and that there is no property available for the grant of injunction as prayed. 2. The Claimant disputed the respondent’s assertion that the public auction took place on 7th August 2025 as alleged. She states that she personally went to the site where the auction was to be conducted outside Embu KCB building on 7th August 2025 and no auction took place that day. Therefore, if any sale happened on 8th August 2025 against the notice given to her, then the sale is illegal. **ISSUES** 1. Having considered the Claimant’s instant Application, her grounds, her Supporting and Supplementary Affidavit and the 1st Respondents Replying Affidavit and having read through and acquainted ourselves with the pleadings on records, two (2) issues emerge out for our determination; 2. Whether the Claimant has established the threshold to warrant her to be granted a Temporary Injunction? 3. Who should meet the cost of this Application? **ANALYSIS AND DETERMINATION.** 1. ***Whether the claimant has established the threshold to warrant her to be granted a temporary injunction?*** 2. First, the tribunal notes that the claimant had filed a similar application dated 17th December 2020 seeking for the same orders of temporary injunction as the present application. Based on the provisions of order 40 of the civil procedure Rules 2010 and the principles that was established in the classical case of **Giella V Cassman brown & co.ltd (1973) EA 358** and were reiterated in the case of **Nguruman Ltd V. Jan Bonde Nielsen & 2 others civil appeal No.77 of 2012**. For the Application of 2020, the Tribunal granted the Temporary Injunctive orders in a ruling dated 19th August 2021 on the following conditions: 3. That the Statement of Accounts and reconciliation to be filed by the 1st Respondent within 30 days. 4. That the Applicant to give a payment schedule 14 days after receipt. 5. Any default by the Applicant in the repayment schedule the Interim Orders shall collapse. 9. In compliance with the above, the Applicant filed an affidavit on the payment schedule/repayment plan whereby she made several proposals which were opposed by the 1st Respondent. Later, the Tribunal ordered in a ruling dated 11th May 2023 that the Claimant should pay Ksh.80,000/= monthly starting from 10th July 2023 after the offset of her shares and in default of one instalment, the temporary injunction shall cease and stand vacated. 10. With this understanding of the chronology of events, the gist of the present Application is that the Respondent contend that the property in which the Applicant is seeking Temporary Injunctive orders was sold on 8th August 2025 through public auction. On the other hand, the Applicant states the auction that was to be conducted on 7th August did not take place and if the land was sold on 8th August 2025, then it was illegal as it went against the notice which was given to her. 11. Up to this point, the Applicant did not dispute the Statutory Notice which was issued under Section 90(2) of the Lands Act that led the chargee to exercise its power outlined under Section 90(3) of the Act. The import of this is that the 1st Respondent complied with the statutory provisions of the law. 12. Flowing from the above, it is not in doubt that when the Applicant failed to comply with the orders of this Tribunal as per the ruling dated 11th May 2023, the Temporary orders earlier granted abated and exposed the charged properties to be sold by the 1st Respondent. 13. Granted that this Tribunal has made several other orders since the ruling dated 19th August 2021 and yet the Applicant keep filling Applications to either seek for reviews or Temporary Injunctions without compliance with the orders to repay the outstanding loan. This Tribunal cannot be used to play an endless game to cripple the powers of the lender (1st Respondent) in favour of the applicant (borrower) who is not willing or unable to repay the loans that was advanced to her. The Tribunal echoes the decision of the court in the case of **Joseph Okoth Waudi V. National Bank of Kenya, Civil Application No.77 of 2004** stated that: **“It is trite law that the courts will not restrain a mortgagee from exercising its power of sale merely because the amount due is in dispute or because the mortgagee has begun a redemption action or because the mortgagor objects to the manner in which the sale is being arranged. It will be restrained however if the mortgagor pays the amount claimed in court, that is the amount which the mortgagee claims to be due to it, unless on the terms of the mortgage, the claim is excessive”.** (Emphasis ours) 14. The Memorandum of Sale and the certificate of sale on record are both dated in Embu on 7th August 2025 while the letter informing the 1st Respondent that the sale was completed is dated 8th August 2025. The objection of the Applicant is on the manner in which the sale was arranged by the 1st Respondent. This is not a condition to warrant injunctive orders to be granted to the Applicant as per the decision of the court quoted above. In addition, this Tribunal like all other courts of law is empowered under Article 159 (2) (d) to administer justice on substantive merits rather than strict technical flaws: **(d)** **“Justice shall be administered without undue regard to procedural technicalities”.** In our view, the substantive justice in this case is the defaulted loan and the inability of the claimant to repay, but not on the procedural dates of the exercise of the power of sale. 15. Further, it is a settled principle of law that once a property is offered for security for a loan, it becomes available for realization upon default. It is on this basis that the 1st Respondent instructed the 3rd Respondent to carry out the auction after the exhaustion of the available avenues to recover the debt from the applicant. 16. Having re- checked the Applicant’s grounds and Supporting Affidavit relating to the instant application, we have not come across any claim or any evidence on record to show that the auction was conducted **fraudulently or that there was any collision or any notice of impropriety** to persuade the Tribunal to grant the orders sought by the Applicant. Consequently, it is the finding of this Tribunal that the Applicant has not demonstrated that she has met any of the three (3) principles enunciated in the case of **Giella V Cassman Brown co (1973) EA 358** that was discussed in our ruling dated 19th August 2021. 16. Having found that the applicant was in default under the charge and that the requisite statutory notices were dully served upon the applicant, the tribunal is not persuaded that the sale can be impeached without proper evidence. Under the circumstance, we are persuaded that the land under Title No. NGANDORI/KIRIGI/T.188 has been sold and that there is no property available to the applicant to seek for a grant of injunction. 17. Granted that the claimant has not complied with any of the repayment orders of this tribunal since 2021 and still goes ahead to seek for further orders on the same subject matter. On a similar situation, the court in the case of **Francis J.K Icatha V. Holding Finance Co. Ltd HCCC No. 414 of 2004,** the court held that: **“A plaintiff should not be granted an injunction if he does not have clean hands and no court of equity will aid a man to derive advantage from his own wrong, for the plaintiff seeks this court to protect him from the consequences of his own default. He who seeks equity must do equity. The plaintiff should not be protected or given advantage by virtue of his own refusal to make payments to the defendant/respondent a debt which he expressly undertook to pay”** Guided by this high court decision, this Tribunal decline to grant another temporary injunction to the claimant after the first one ordered on 19th August 2021 abated as a result of non-compliance. 17. That aside, regarding Title No. NGANDORI/KIRIGI/T.206, the tribunal has not seen any evidential proof filed by the respondent that the said charged property has been auctioned. As it stands at the moment, this property is open to be auctioned through re-advertisement for sale, however, should the claimant wish to reclaim the same, we direct that she should approach quickly the respondents not later than 14 days herein and negotiate with them the payment of the entire balance of the loan after subtracting the proceeds of the sale of Title No. NGANDORI/KIRIGI/T.188 failure to which the respondents may proceed to exercise their statutory power of sale. 18. In conclusion, the upshot of the foregoing analysis is that the Notice of motion application dated 4th August 2025 seeking for temporary injunction to restrain the the 1st from exercising their statutory power of sale of the charged land Title No. NGANDORI/KIRIGI/T.188 and Title No. NGANDORI/KIRIGI/T.206. lacks merit and is hereby dismissed. 19. However, for Title No. NGANDORI/KIRIGI/T.206 which has not been shown to have been sold, we direct the claimant to approach and negotiate with the 1st Respondent within 14 days from the date herein, on payment of the full balance of the defaulted loan after deduction of the proceeds of the sale of Title No. NGANDORI/KIRIGI/T.188, failure to which the 1st respondent should proceed to re-advertise for sale of the property on a public auction without further refence to this Tribunal. That the cost of this application shall be borne by the Applicant. Ruling signed, dated and delivered *virtually* at **Nairobi** this **3rd** day of **September, 2026.** **Hon. J. Mwatsama Chairperson Signed** **3.9.2026** **Hon. Beatrice Sawe Member Signed 3.9.2026** **Hon. Fridah Lotuiya Member Signed 3.9.2026** **Hon. Paul Aol Member Signed 3.9.2026** **Hon. Michael Chesikaw Member Signed 3.9.2026** **Tribunal Clerk J. Mutai**