Kibanya v Tai Savings and Credit Cooperative Society Ltd & another

REPUBLIC OF KENYA IN THE COOPERATIVE TRIBUNAL AT NAIROBI TRIBUNAL CASE NO. E1005 OF 2025 (Coram: Hon. J. Mwatsama- Chairperson, Hon. B. Sawe- Member, Hon. F. Lotuiya- Member, Hon. M. Chesikaw- Member and Hon. P. Aol- Member.) JOSEPH GITHI KIBANYA……......... …………………………...CLAIMANT VERSUS TAI SAVINGS AND CREDIT COOPERATVE SOCIETY LTD………………………..……1ST RESPONDENT EXPRESS AGENCY AUCTIONEERS…..…………..….….2ND RESPONDENT JUDGEMENT 1. The matter for determination is a Statement of Claim dated 27th November, 2025 in which the Claimant claims that on 7th December 2023, he obtained a loan facility of Ksh. 3,000,000 from the 1st Respondent at an interest of 13% per annum, repayable in 36 monthly instalments of Ksh. 115,833.34 and secured by his property known as LR No. CTC NO. E1005 OF 2025 JUDGEMENT 1 13673/384 situated in Ruiru. That after repaying about Ksh. 1,000,000/-, the Claimant got a contract with the Ministry of Education and applied and received a further loan of Ksh. 1,800,000/- from the 1st Respondent. That he was then defrauded by a business partner, and that he also fell sick, and then fell in arrears. That without due regard to his circumstances, the 1st Respondent sought to attach the security and an auction was scheduled for 7th November 2025, and that the property to be auctioned is his matrimonial home. He accuses the Respondents of breach and fraud, and therefore prays for, a) A declaration that the intended Auction of L.R No. 13673/384 (I.R No. 102586) scheduled for 7th November 2025 pursuant to the Gazette Notice dated 22nd October 2025 is unlawful, irregular, null, and void. b) A permanent injunction restraining the respondents, their agents, servants, or assigns from advertising, selling, transferring, disposing, or otherwise interfering with L.R No. CTC NO. E1005 OF 2025 JUDGEMENT 2 13673/384 (I.R No. 102586) in any manner whatsoever. c) An order directing the 1st respondent to restructure the claimant’s loan repayment period by extending the first loan by two (2) years and the second loan by one (1) year, combining both for repayment for three (3) years in monthly installments of approximately Kshs. 50,000. d) Costs of this claimant (sic) and interest thereon. e) Any other or further relief this Honourable Court may deem fit and just to grant in the circumstances. The Claim is accompanied by a witness statement, and documents in support of the claim. 2.The 1st Respondent filed a Statement of Defence dated 9th March 2026. In their Defence, the 1st Respondent denies that it was engaged in fraud or breach of duty of care. They aver that the Claimant has on its own admission pleaded that he was in arrears and therefore it is fully justified in law and CTC NO. E1005 OF 2025 JUDGEMENT 3 in equity with proceeding with the recovery proceedings. That it is a custodian of public funds donated by various members of the Sacco who are mainly farmers, and it has a legal duty to safeguard the said funds. They pray that the Claim be dismissed with costs. 3.The matter was canvassed by way of written submissions, and hence there was no hearing. At the time of writing this judgment, none of the parties had filed their submissions. ANALYSIS 4.This Tribunal has considered the pleadings and the documents filed by the parties. 5.It is not in dispute that the Claimant obtained loans from the 1st Respondent. It is also not in dispute that the Claimant’s loan was secured by his property LR No. 13673/384. Further, it is not disputed that the Claimant fell in arrears in the repayment of the said loan, and the 1st Respondent sought to realize the security because of the default. For clarity of the above, the loan contract has not been disputed by the parties, and neither has the Claimant faulted the attachment process. CTC NO. E1005 OF 2025 JUDGEMENT 4 6.The only issue that the Claimant raises is that the Respondent has not heeded to his pleas for restructuring the loan, hasn’t taken into consideration his medical and financial hardships, the fact that the suit property is his family home, and failing to conduct an independent valuation and current valuation of the charged property prior to advertising the sale. 7.The question that this Tribunal now asks itself is whether the Claimant has sufficiently proved his claim and whether he is entitled to the prayers sought. 8.The subject matter of this case is a loan that was advanced to the Claimant by the 1st Respondent, and which was secured by the suit property LR NO 13673/384. The Claimant in his documents has produced two offer letters by the 1st Respondent, which were duly executed as accepted by the Claimant. The loans taken and the security provided are subject of the two contracts entered into between the parties. These contracts have not been disputed by either of the parties. The Claimant, due to very unfortunate circumstances has not been able to hold on to his bargain as far as repayment of the loans is concerned. He does not fault the loan contract as being CTC NO. E1005 OF 2025 JUDGEMENT 5 coercive, fraudulent or having been entered under undue influence. He faults the 1st Respondent for moving in to realize the security that he himself gave to secure the repayment of the loan. 9.It is trite law that a court cannot rewrite an agreement or contract made between parties. In National Bank of Kenya Limited vs. Pipe Plastic Samkolit (K) Ltd [2002] eKLR, the Court stated thus: “A court of law cannot rewrite a contract between parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded or proved.” 10. We sympathise with the Claimant’s situation. However, when the property was given up as security for the loan advanced, it was to secure his repayment according to the terms of the contract, unless they enter into subsequent contracts in form of restructuring. Indeed it is the Claimants assertion that the 1st Respondent refused to restructure the loan. This means that the initial loan contract is still in force, and if it was a term of the contract that the security would be CTC NO. E1005 OF 2025 JUDGEMENT 6 realized in case of default, then this Tribunal cannot nullify, or vary a term of the contract otherwise it will be rewriting the contract between the parties. It does not matter that the security is a family home. The security is regular regardless of its nature. The Claimant gave up that security knowing very well that it was his family home. 11. Flowing from above, we find that the Claimant’s Claim lacks merit and the same is hereby dismissed with costs. Judgement signed, dated and delivered virtually at Nairobi this 30th day of July, 2026. Hon. J. Mwatsama Chairperson Signed 30.7.2026 Hon. Beatrice Sawe Member Signed 30.7.2026 Hon. Fridah Lotuiya Member Signed 30.7.2026 Hon. Paul Aol Member Signed 30.7.2026 Hon. Michael Chesikaw Member Signed 30.7.2026 CTC NO. E1005 OF 2025 JUDGEMENT 7 Tribunal Clerk Jemimah Muturi advocate for the Claimant. Wahome advocate for the Respondent – No appearance. Hon. J. Mwatsama Chairperson Signed 30.7.2026 CTC NO. E1005 OF 2025 JUDGEMENT 8