[2025] KECPT 349 (KLR)

Njiru v Nawiri Sacco Society Limited & another (Tribunal Case 261/E052 of 2021) [2025] KECPT 349 (KLR) (Civ) (19 June 2025) (Judgment)

Neutral citation: [2025] KECPT 349 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 261/E052 of 2021

Janet Mwatsama, Vice Chair, M Chesikaw & PO Aol, Members

June 19, 2025

Between

Dickson Mbogo Njiru

Claimant

and

Nawiri Sacco Society Limited

1st Respondent

Giant Auctioneers

2nd Respondent

Judgment

1. Claimant filed Statement of Claim dated 15. 6.2021 filed on 16. 6.2021. Claimant avers to be member of Respondent Society and took a loan in 2021 and Kshs.4,150,000/= was disbursed.Claimant claim to have fallen back to his payment and 1st Respondent through 2nd respondent proceeded to advertise for sale of Land Parcel Ngandori/Kirigi/8539. The Claimant claim is for :a.The Claimant claims for a permanent injunction restraining the Respondents from attaching, advertising for sale, selling, alienating and disposing off or in any other way dealing with the Claimants property land parcel NGANDORI/KIRIGI/8539. b.Cost of this claim and interest at court rates till payment in full.

2. Claimant filed their Witness Statement and List of Documents dated 15. 6.2021 filed on 16. 6.2021 which documents are :a.Auctioneers notification of saleb.Letter dated 27th July 2021c.Daily nation, notice of saled.Loan statemente.Copy of title.

3. Respondent filed Statement of Defence where they denied the averments of paragraph 6,7,9,10,11,12,and 13 other than paragraph 4,5,8,14 and 15 which Respondent admitted.1st Respondent state it would suffer loss if injuncted from recovering the outstanding loan.2nd Respondent gave all requisite notification for sale and 45 days redemption notice. As such Respondent pray for Claimant’s statement of claim to be dismissed with costs.Respondent filed List of Documents on 14. 10. 2021 filed on 27. 10. 2021 which documents includes:a.Claimant’s Loan Application letterb.Letter of offer executed by the Claimant on 28. 7.2020. c.Claimant’s Business Loan Application form approved on 25. 9.2020. d.Title deed no. Ngandori/ Kirigi /8539. e.Demand notice dated 20. 11. 2020. f.45 redemption notice dated 14. 4.2021g.Notification of sale scheduled on 18. 6.2021 in respect of land parcel no. Ngandori/Kirigi/8539h.Claimants Loan Account Statement indicating the loan outstanding balance and accrued interest as at 10. 10. 2021. i.Any other document(to be produced with leave of court.

4. Matter came for hearing on 19. 6.2021 and Claimant gave evidence agreeing that he was given a loan but got into trouble and was not able to repay the loan amount. He confirmed he gave his title parcel no. Ngandori/Kirigi/8539 as security for the loan.Claimant admitted he had only paid upto Kshs. 600,000/=. He stated he pays when he gets the money.

5. The Respondent brought their case and RW1 adopted their witness statement dated 14. 10. 2021 filed on 27. 10. 2021 which was used as Respondent’s evidence in claim.He produced the Respondent’s documents as evidence.During cross examination the Respondent states the Claimant owed the Kshs. 6,524,155/= and had only paid Kshs. 654,372/=.He states the Claimant only makes payments when the matter is almost/close to the hearing date showing he does not take the loan seriously. He confirmed the statutory notices were sent to Claimant as per their list of documents.

6. The issues for determination in this case is one whether the Tribunal can issue a permanent injunction restraining Respondent from attaching advertising for sale, selling, alienating or disposing off parcel no. Ngandori/Kirigi/8539. We have looked into the pleadings documents filed and the evidence adduced in court.We find that Claimant has not shown any evidence or given any reasons why a permanent injunction ought to be issued for land parcel no. Ngandori/Kirigi/8539 should not be sold.

7. The said property land Parcel No. Ngandori/Kirigi/8539 was used as security for the loan advanced to claimant for Kshs. 4,150,000/=. The law of contract dictates that there is an offer, acceptance, consideration.Parties must ensure they undertake their duties as per the contract.The Claimant has not made payment.The Respondent have a duty to its membership to recover their loaned amount which can only be done through sale of security given.

8. Further while selling clarification the Claimant stated that if given till December 2025 he can and will make full payment of the loan.The Respondent witness rightly stated they have been patient with the Claimant and are also willing to give him till December 2025. We remind ourselves the case before us is not for repayment of loan but for injunctive orders to be issued.

9. Permanent injunction in the case of Mburu versus Kibara & 2 others ELC Case No. 237 of 2021 [2022]KEELC 3226 KLR (28 July 2022) ruling therein.“………permanent injunction fully determines the right of the parties before the court and is normally meant to perpetually restrain the commissioner of an act of the Defendant in order for the rights of the claimant to be protected. This court has the powers to grant a permanent injunction under section 1A,3,and 3A of the civil Procedure code if it fails the right of a party has been infringed, violated and or threatened as the court cannot just seat, wait and watch under these given circumstance.”As such we are not convinced the claimant is able to be given the orders sought as they are in breach …Claimant have not proven why the security have not been used.

10. Upshot1. The Statement of Claim dated June 15, 2021 is found to be without merit therefore same is dismissed with costs to Respondent.2. Claimant granted grace period till December 2025 to make full payment if at all.3. By consent parties agree to have a grace period till December 2025 to confirm payment of the loan amount.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 19TH DAY OF JUNE, 2025. HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 19. 6.2025Hon. Michael Chesikaw Member Signed 19. 6.2025Hon. Paul Aol Member Signed 19. 6.2025Tribunal Clerk MutaiHon. J. Mwatsama Deputy Chairperson Signed 19. 6.2025