https://new.kenyalaw.org/akn/ke/judgment/kecopt/2026/320

REPUBLIC OF KENYA IN THE COOPERATIVE TRIBUNAL AT NAIROBI TRIBUNAL CASE NO. E675 OF 2025 (Coram: Hon. J. Mwatsama- Chairperson, Hon. B. Sawe- Member, Hon. F. Lotuiya- Member, Hon. M. Chesikaw- Member and Hon. P. Aol- Member.) PAUL GITHAIGA NDUNGU……..…….……………CLAIMANT/APPLICANT VERSUS VIKTAS SAVINGS AND CREDIT CO-OPERATIVES …………..RESPONDENT SOCIETY LIMITED………………... RULING 1. This ruling dispenses the Notice of Motion Application dated 1st August 2025. The Application is supported by an affidavit sworn by the Applicant PAUL GITHAIGA NDUNGU and brought under Sections 1A, 1B & 3A of the Civil Procedure Act Cap 21, Order 40 Rule 1 of the Civil Procedure Rules, 2022, Article 40, Article 159(2)(d) of the Constitution of Kenya, 2010 and any other CTC NO. E675 OF 2025 RULING 1 enabling provisions of the law. The Application seeks the following orders: a) Spent b) Spent c) THAT pending the hearing and determination of the main suit, the honorable court be pleased to issue an order of temporary injunction restraining the respondent, its agent, servants and/or persons acting at its behest from transferring L.R NO. LAIKIPIA/NYAHURURU/7600 measuring approximately (0.058 ha) belonging to the claimant/applicant to any person and/or interfering with the claimant/applicant’s registration as the absolute owner of L.R NO. LAIKIPIA/NYAHURURU/7600 measuring approximately (0.058 ha). d) THAT costs of this application be provided for. 2.The Application is premised on the grounds on its face which are inter alia that: The Applicant is a member of the Respondent and that sometimes in 2022, he was advanced a loan of Ksh. CTC NO. E675 OF 2025 RULING 2 1,800,000, and his property LR NO. LAIKIPIA NYAHURURU/7600 was charged as security. That he has made some repayments, and but fallen in arrears and attempts to restructure the same has fallen on deaf ears. That on 30th July 2024, he received a ‘Courtesy Notification of Sale’ from auctioneers, purporting that the land would be sold on 30th July 2024. That the sale was unprocedural and illegal ab initio since there was no statutory notice of sale, no notice of intention to sell, and no notice of redemption issued. That there was also no forced sale valuation before the sale. 3.The Respondent, through a replying affidavit sworn by its Chief Executive Officer, opposes the Claimant's application on the grounds that it is made in bad faith and is an attempt to frustrate the lawful realization of charged property after the Claimant defaulted on a loan advanced on 18th September 2021. The Respondent contends that the Claimant has failed to make full and frank disclosure, has not demonstrated any legal basis for the reliefs sought, and cannot seek equitable remedies while withholding material facts. It states that following the Claimant's CTC NO. E675 OF 2025 RULING 3 persistent default, it lawfully issued and served a statutory notice, a 45-day redemption notice, and a subsequent courtesy notification of sale, all of which afforded the Claimant an ample opportunity to redeem the charged property. That although the Claimant later sought an indulgence of four months to clear the outstanding loan, the Respondent granted the request by postponing the auction, but the Claimant still failed to honour the agreed terms or make any payments. Consequently, the Respondent proceeded with the realization process by advertising the property for sale and conducting a public auction on 30th July 2025, at which the property was sold to the highest bidder for Kshs. 1,600,000. Following the payment of the purchase price, transfer documents were executed and handed over to the purchaser, thereby divesting the Respondent of any further control over the property. The Respondent therefore argues that the application has been overtaken by events, is devoid of merit, and should be dismissed with costs. 4.In his Further Supplementary Affidavit, the Claimant asserts that the newly discovered evidence fundamentally undermines the CTC NO. E675 OF 2025 RULING 4 Respondent's defence and demonstrates that the public auction of the charged property did not occur on 30th July 2025 as consistently pleaded by the Respondent, but on 13th August 2025, while the suit was already pending before the Tribunal. He relies on a subsequent letter from the Respondent's Chief Executive Officer, which expressly states that the property was sold on 13 th August 2025 and applies the sale proceeds to his loan account, contending that this contradicts the Respondent's earlier pleadings, replying affidavits, and certificate of sale, thereby exposing material misrepresentation and misleading evidence. The Claimant argues that the purported sale during the pendency of the proceedings violated the doctrine of lis pendens under section 39 of the Land Registration Act and was undertaken in disregard of the Tribunal's authority, rendering the transaction voidable. He further maintains that he was never served with the mandatory statutory and redemption notices required under the Land Act and challenges the authenticity of the Respondent's alleged proof of service. The affidavit emphasizes that the Respondent has already treated the property as sold and is CTC NO. E675 OF 2025 RULING 5 facilitating its transfer to the purchaser, which would irreparably defeat the pending suit because the property is his family home and damages would not be an adequate remedy. On that basis, the Claimant submits that the newly discovered letter constitutes fresh and decisive evidence warranting a review of the Tribunal's earlier orders, the grant of an interim injunction or maintenance of the status quo, and the preservation of the suit property pending the determination of the case. 5.The matter was canvased by way of written submissions, and both parties filed their submissions. The Applicant submits that the Respondent has failed to satisfy the legal threshold for refusing an interlocutory injunction as established in Giella v Cassman Brown & Co. Ltd (1973) EA 358 and reaffirmed in Micah Cheserem v Immediate Media Services & Others, arguing that the Respondent has not displaced the Applicant's prima facie case. The submissions contend that although the Applicant alleges non- service of the requisite statutory notices, the Respondent has CTC NO. E675 OF 2025 RULING 6 produced sufficient evidence demonstrating that the statutory notice, redemption notice, and courtesy notification of sale were duly issued and served. Consequently, the Applicant has failed to establish any illegality, irregularity or procedural impropriety in the Respondent's exercise of its statutory power of sale, and therefore has not demonstrated a prima facie case with a probability of success. The submissions further argue that the application has been overtaken by events because the charged property was lawfully sold at a public auction to a third-party purchaser, who paid the purchase price in full, after which the Respondent executed and delivered the transfer documents, relinquishing all legal and beneficial interest in the property. It is therefore contended that the Tribunal cannot issue injunctive orders against completed acts, as such orders would be incapable of enforcement and would serve no practical purpose. The Respondent maintains that it no longer has any proprietary interest or control over the property and that granting the injunction would instead prejudice the innocent purchaser who acquired the property through a lawful auction. That the balance CTC NO. E675 OF 2025 RULING 7 of convenience favours refusing the injunction since the Applicant has already lost all legal interest in the property following the lawful exercise of the Respondent's statutory power of sale. On that basis, the Respondent urges the Tribunal to dismiss the application with costs, arguing that the injunction sought has been rendered moot by the completed sale and transfer process. 6.The Respondent submits that the Applicant has failed to satisfy the principles governing the grant of an interlocutory injunction as established in Giella v Cassman Brown and Micah Cheserem v Immediate Media Services, arguing that no prima facie case has been established because the Respondent produced sufficient evidence showing that all statutory notices were duly issued and served, while the Applicant failed to rebut that evidence or demonstrate any illegality or procedural impropriety in the exercise of the statutory power of sale. The Respondent further contends that the application has been overtaken by events since the suit property was lawfully sold by public auction to a third- party purchaser, the purchase price was fully paid, and transfer documents were executed and handed over, thereby CTC NO. E675 OF 2025 RULING 8 extinguishing the Respondent's proprietary interest and control over the property. It is therefore argued that the injunction sought would be incapable of enforcement, as courts do not issue orders in vain or restrain completed acts, and that granting the orders would unfairly prejudice the innocent purchaser while occasioning no prejudice to the Applicant, whose redeemable interest ceased upon the lawful sale. Accordingly, the Respondent urges the Tribunal to dismiss the application with costs as it lacks merit and seeks to interfere with a completed statutory sale conducted in accordance with the law. ANALYSIS 7.This Tribunal has noted the application, responses and the submissions with regards to this application. The question before this Tribunal is whether the Applicant is entitled to the reliefs sought. 8.The germane principles on interlocutory injunctions were stated by the Court of Appeal in East Africa in the case of Giella v Cassman Brown & Co. Ltd (1973) EA as follows: CTC NO. E675 OF 2025 RULING 9 a) The Applicant must first establish a prima facie case with a probability of success. b) The Applicant must then demonstrate that he, she or it stands to suffer irreparable loss that cannot be adequately compensated through damages. c) Where there is doubt on the above, then the balance of convenience should tilt in favour of the Applicant. 9. The first question that this tribunal should address itself is whether the claimant has established a prima facie case with a probability of success. In the case of Mrao v First American Bank of Kenya Limited & 2 Others [2003] eKLR the court defined a prima facie case as one which on the material presented in court, a tribunal property directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the respondent. CTC NO. E675 OF 2025 RULING 10 10. And so in this case, the Applicant ought to show that the act of advertising for sale, selling by private treaty or public action land parcel number LR NO. LAIKIPIA NYAHURURU/7600 will infringe on a right that the applicant has. We ask ourselves why is the Respondent threatening to sell the Claimant’s property? The reason is that the Applicant offered his property as a security for a loan from the Respondent. A security is normally given to secure the payment of a debt in case of default. The Applicant himself admitted that he has defaulted in the amount advanced. We, therefore, find that a prima facie case has not been established in this case. 11. The second element that ought to be established is that the Respondent stands to suffer irreparable loss that cannot be compensated by an award of damages. According to the Respondents, the parcel of land has already been sold, and that the property is already in the hands of a third party. Indeed in the Applicant’s submissions, they agree to this fact, and pray that this Tribunal dismisses their Application. CTC NO. E675 OF 2025 RULING 11 Therefore, we find that the question of irreparable loss and the balance of probabilities have been overtaken by events, and acknowledged by both parties herein through their submissions. The buyer of the subject property is not a party in this matter, and therefore, this Tribunal cannot issue orders in vain. 12. In the upshot the Tribunal hereby issues the following orders a) Applicant’s Notice of Motion Application dated 1st August 2025 is found to be without merit and the same is hereby dismissed with costs to the Respondent. b) Notice of Motion Application dated 12th December 2025 is spent. Ruling signed, dated and delivered virtually at Nairobi this 23rd day of July, 2026. Hon. J. Mwatsama Chairperson Signed 23.7.2026 Hon. Beatrice Sawe 23.7.2026 Member Signed CTC NO. E675 OF 2025 RULING 12 Hon. Fridah Lotuiya 23.7.2026 Member Signed Hon. Paul Aol Member Signed 23.7.2026 Hon. Michael Chesikaw Member Signed 23.7.2026 Tribunal Clerk Jemimah Mention for Pretrial direction on 12.10.2026 before the Assistant Deputy Registrar. Ms. Rotich advocate holding brief for Mr. Kungu for the Respondent. Ms. Wahome advocate holding brief for Mr. Mathee advocate for the Claimant. Hon. J. Mwatsama Chairperson Signed 23.7.2026 CTC NO. E675 OF 2025 RULING 13