[2025] KECPT 283 (KLR)

Rono v Unison Sacco Society Limited (Tribunal Case E736 of 2024) [2025] KECPT 283 (KLR) (15 May 2025) (Judgment)

Neutral citation: [2025] KECPT 283 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case E736 of 2024

Janet Mwatsama, Vice Chair, B Sawe & PO Aol, Members

May 15, 2025

Between

David Kamunya Rono

Claimant

and

Unison Sacco Society Limited

Respondent

Judgment

1. The matter before us is a Claim dated 27/9/2024. The Claimant avers he entered into a charge agreement with the Respondent on 3/3/2021 over property title number Nyahururu Township Block 6/497 in favour of loan of Kshs.30,000,000/=.Pursuant to the charge agreement, the loan was repayable over a period of 2 years in successive monthly installments of Kshs. 1,440,960/= starting 6th March, 2021. Due to financial constraints, the Claimant had several financial constraints and was unable to pay up the debt owed.

2. As a result, the Respondent issued the Claimant with a Statutory Notice of intention to sell pursuant to Section 96(2) of the Land Act with aim to sell his property known as Land Title/ Nyahururu Township Block 6/497. The Claimant in paragraph 7 of his Claim sought for 40 more days to allow him to comply with the Statutory Notice of intention to sell pursuant to Section 96(2) of Land Act.A consent agreement was executed on 24/9/2024 in Nairobi Milimani ELC No. E293 of 2011. As per the Consent Agreement, the Claimant approved 60% interest over the suit property L. R. No. 21930 situated in Lang’ata.

3. The Claimant avers that the additional 40 days sought would allow him to sell property no. L. R. No. 21930 valued at Kshs.110,000,000/=The Claimant’s prayers are thus;a.An order barring the Defendant/Respondent and/or its agents from selling the Plaintiff/Applicant’s property known as Land Title/ Nyahururu Township Block 6/497. b.An order granting the Plaintiff/Applicant 40 days to comply with the statutory notice of intention to sell pursuant to Section 96(2) of the Land Act with the aim to sell his property known as Land Title/ Nyahururu Township Block 6/497. The Claimant filed Supporting Affidavit in Support of Application dated 27/9/2024. The Tribunal then issued Interim Orders stopping the running of time for Statutory Notice of Intention to sell issued on 5/5/2024 pending hearing of the Application on 22/10/2024.

4. Before the Respondent filed a response, all the parties on 21/11/2024, the parties entered into a consent for the “Application dated 27/9/2024. Can be allowed with matter to be mentioned on PTC”

5. The Respondent filed a Statement of Defence and Counter Claim dated 21/11/2024. The Respondent admitted paragraph 3 of the Plaint in as far as the property charged known as Land Title/ Nyahururu Township Block 6/497 as security.The Respondent denies averments of other paragraphs in the Statement of Claim. The Respondent states in response to Paragraph 6 of Plaint, the Claimant has made no attempt prompting the Respondent to issue the Statutory Notice pursuant to Section 96(2) of the Land Act giving the Claimant another 45 days to rectify the default.

6. The Respondent states that they are strangers to paragraph 8-12 of the Plaint as they were not parties to the proceedings in ELC E293 of 2021. The Respondent filed a Counter Claim and stated the amount owing is Kshs. 36,064,773. 86/= in loan arrears and they pray for;a.The Claimant’s suit be dismissed.b.Judgement against the Claimant for repayment of loan facility in the sum of Kshs. 36,064,773. 86/= plus interest at court’s rate from the date of default until payment in full.c.Costs and interest.d.Any other relief that this Honourable Tribunal may deem just and fit to grant.

7. Matter came for hearing on 15/5/2025, the Tribunal noted with concern the orders sought in the Claim are no longer sustainable.The issue was brought to the parties’ Counsels however the Claimant’s Counsel insisted to let have his client have their day in Court and stated that time should start running after Court made its decision.The Respondent on the other hand shared some views as the Tribunal stated and stated that the Respondent had their 40 days since orders were granted at the Tribunal on 30/9/2024. The issue for determination is thus:

8. Issue one.Whether the orders sought in the Claim have been granted with consent dated 21/11/2024. We note that the Application dated 27/9/2024 sought for orders;1. Spent.2. That this Honourable Tribunal be pleased to expand and/or extend the time within which the Claimant herein is to comply with the statutory notice of intention to sell pursuant to Section 92(2) of the Land Act issued by the Respondent herein by a further 40 days.3. That Costs of this Application be provided for.On 21/11/2024, the parties agreed or consented on their Application by allowing the prayers therein.It is unfortunate the issues of the prayers in the main Claim was not looked into at that point and matter set down for hearing while in essence, the suit prayers had been determined by the consent of the parties.

9. We ask ourselves if it is proper for the Tribunal to now dwell with the main Claim while the issue of 40 days extension had been dealt with.Question: What is abuse of Court process.In the case of Nyaragi –vs- Musyoki Mogaka & Co. Advocates; Civil Appeal 80 of 2020 Justice Sergon on 6/5/2022 is Paragraph 34 of the Judgement, gave instances of an abuse of the Court process as;“Paragraph 34“The situation that may give rise to an abuse of the Court process are indeed in exhaustive, it involves situation where the process of Court has not been or resorted to fairly, properly, honestly to the detriment of the other party.However, abuse of Court process in addition to the above, arises in the following situations;a.Instituting a multiplicity of actions on the same subject against the same opponent on the same issues or multiplicity of actions on the same matter between the same party even where there exists a right to begin the action.b.Instituting different actions between the same parties simultaneously in different count even though on different grounds.c.Where 2 similar processes are used in respect of the exercise of the same right for example a cross appeal and Respondent notice.d.Where an Application for adjournment is sought by a party to bring another application to court for leave to raise issue of fact already decided by Court below.e.Where there is no iota of law supporting a court process or where it is premised on recklessness. The abuse in this instance lies in the inconvenience and inequalities involved in the aims and purposes of the action.f.Where a party has adopted the system of forum shopping in the enforcement of a concerned right.g.Where an appellant file an Application at the trial court in respect of a matter which is already subject of an earlier Application by the suspect at the Court of Appeal.h.Where two actions are commenced, the served asking for a ruling which may have been obtained in the first. An abuse may also involve some bias, malice or desire to misuse on prevent the course of justice or judicial process to the irritation or annoyance of an opponent”

10. This is a clear case where the Claimant is abusing the Court process having got their 40 requested days they try to hood ware Court on having a hearing to jam more time.The mischief by the Claimant must be curtailed at the earliest it is detected to enable justice to prevail.The Claimant cannot have their cake and eat it.

Upshot. 1. With no further ado, the Consent entered by the parties on 21/11/2021 to allow the Application dated 27/9/2024 dispensed off the Suit/Main Claim,

2. The Counter Claim filed thereafter had no fact to stand on and even if it did the same would not stand.

3. We therefore shall not waste any more judicial time on the matter.Matter was settled with the consent of 21/11/2024.

4. 30 days stay of execution granted to Claimant.

5. Costs of suit to the Respondent.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 15TH DAY OF MAY, 2025. HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 15. 5.2025HON. BEATRICE SAWE MEMBER SIGNED 15. 5.2025HON. P. AOL MEMBER SIGNED 15. 5.2025TRIBUNAL CLERK MUTAIHON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 15. 5.2025