https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12632

Kemama v Qona Deposit Taking Sacco Society (Safaricom Sacco Ltd) & another (Civil Appeal E004 of 2026) [2026] KEHC 12632 (KLR) (Civ) (30 July 2026) (Ruling) Neutral citation: [2026] KEHC 12632 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E004 of 2026 WA Okwany, J July 30, 2026 Between Selina Njeri Wambui Kemama Applicant and Qona Deposit Taking Sacco Society (Safaricom Sacco Ltd) 1st Respondent Keysian Auctioneers 2nd Respondent Ruling Background 1.The 1st Respondent advanced the Applicant a credit facility that was secured by a charge on LR. Nos. KJD/Kaputiei North 29619, Kajiado/Kipeto/3912 and CR 47036/LR No. MN III/4934 . Upon the Applicant's default, the Respondent instituted proceedings before the Co-operative Tribunal seeking recovery of Kshs.7,303,598.68 together with interest and orders permitting realization of the securities. 2.The Applicant neither entered appearance nor filed a response and interlocutory judgment was entered before the matter proceeded to formal proof. Judgment was eventually entered in favour of the 1st Respondent on 12th June 2025 after which the Respondents commenced execution by issuing a 45-day Redemption Notice and Notification of Sale through the 2nd Respondent. The Applicant now contends that she was never served with summons or the pleadings and that the intended sale is unlawful. 3.This ruling concerns the Notice of Motion dated 16th January 2026 in which the Applicant seeks, inter alia, a temporary injunction restraining the Respondents from selling or otherwise dealing with the charged properties known as KJD/Kaputiei North 29619, Kajiado/Kipeto/3912 and CR 47036/LR No. MN III/4934, stay of execution of the judgment delivered by the Co-operative Tribunal on 12th June 2025 in Tribunal Case No. E731 of 2024, preservation of the suit properties pending appeal and setting aside of the Tribunal's judgment. 4.The application is brought under Articles 48, 50 and 159 of the Constitution, Section 76 of the Co-operative Societies Act, Order 10 Rule 11, Order 40 Rules 1 and 2, Order 42 Rule 6 and Order 51 of the Civil Procedure Rules. Applicant's Case 5.The Applicant's case is that the Tribunal proceedings were conducted in breach of her constitutional right to a fair hearing because she was never served with summons to enter appearance or any pleadings. She submits that the judgment was therefore irregular and liable to be set aside ex debito justitiae. She further contends that unless the Court intervenes, the Respondents will proceed with the sale of the charged properties thereby occasioning irreparable loss and rendering the intended appeal nugatory. She relies on Articles 48, 50 and 159 of the Constitution, Order 10 Rule 11, Order 40 Rules 1 and 2 and Order 42 Rule 6 of the Civil Procedure Rules together with the decisions in Giella vs. Cassman Brown & Co. Ltd [1973] EA 358, Shah vs. Mbogo [1967] EA 116, Nguruman Limited vs. Jan Bonde Nielsen & 2 Others [2014] eKLR, Kenya Shell Ltd vs. Benjamin Karuga Kibiru & Another [1986] eKLR and Patel vs. E.A. Cargo Handling Services Ltd [1974] EA 75. Respondents' Case 6.The Respondents oppose the application through the Replying Affidavit of Judith Chavhia Ndenga and the 1st Respondent's written submissions. They maintain that the Applicant was duly served with the Statement of Claim, summons, witness statements and supporting documents both physically and electronically, as evidenced by the affidavits of service annexed to the replying affidavit. 7.They further state that after the Applicant failed to enter appearance or file a defence, interlocutory judgment was regularly entered and the matter proceeded to formal proof before judgment was delivered on 12th June 2025. It is their case that the Applicant has not offered any reasonable explanation for her default nor demonstrated the existence of a triable defence. 8.They further submit that the Applicant has not established substantial loss as required under Order 42 Rule 6 of the Civil Procedure Rules and that the execution process, including issuance of the redemption notice and notification of sale, complied with the law and the Auctioneers Rules. Reliance was placed on James Kanyiita Nderitu & Another vs. Marios Philotas Ghikas & Another [2016] KECA 470 (KLR), Ecobank Kenya Limited vs. Minolta Limited & 2 Others [2018] KEHC 10053 (KLR), Equity Bank Ltd vs. Taiga Adams Company Ltd [2006] eKLR and China City Construction Company Ltd & Another vs. Karisa [2024] KEHC 3323 (KLR). Issues for Determination 9.Having considered the application, the affidavits, the rival submissions and the authorities cited, I find that the following issues arise for determination:a.Whether the Applicant has established a basis for setting aside the Tribunal's judgment.b.Whether the Applicant has satisfied the conditions for the grant of a temporary injunction and stay of execution pending appeal. Analysis and Determination 10.The jurisdiction of the Court to set aside a default judgment is donated by Order 10 Rule 11 of the Civil Procedure Rules, while the conditions for grant of stay pending appeal are provided under Order 42 Rule 6(2) of the Civil Procedure Rules. The latter requires an applicant to demonstrate substantial loss, that the application has been made without unreasonable delay and that security has been furnished for the due performance of the decree. 11.The first question is whether the impugned judgment was regularly obtained. The Applicant's principal complaint is that she was never served with summons to enter appearance. The Respondents have, however, exhibited affidavits of service together with documentary evidence showing service of the pleadings, summons, judgment notice and submissions through personal service, WhatsApp and email. The Applicant did not rebut the specific averments contained in those affidavits or challenge the process server through cross-examination. 12.In James Kanyiita Nderitu & Another vs. Marios Philotas Ghikas & Another (supra), the Court of Appeal distinguished between a regular and an irregular default judgment and held that where a defendant has been duly served but fails to enter appearance or file a defence, the resulting judgment is regular and may only be set aside in the exercise of the Court's discretion. 13.From the material placed before this Court, I am satisfied that the Respondents demonstrated proper service before the Tribunal and that the judgment entered on 12th June 2025 was a regular judgment. 14.The Court's discretion under Order 10 Rule 11 is intended to avoid injustice arising from accident, inadvertence or excusable mistake and not to assist a litigant who deliberately obstructs or delays the course of justice. This principle was enunciated in Shah vs. Mbogo [1967] EA 116 and reiterated in Patel vs. E.A. Cargo Handling Services Ltd [1974] EA 75. 15.In the instant case, I note that apart from denying service, the Applicant has not offered any satisfactory explanation for failing to participate in the proceedings or placed before the Court a draft defence disclosing bona fide triable issues. I therefore find no basis for interfering with the Tribunal's exercise of discretion. 16.On the prayer for stay of execution and temporary injunction, the applicable principles are settled. Under Order 42 Rule 6(2) of the Civil Procedure Rules and the decision in Kenya Shell Ltd vs. Benjamin Karuga Kibiru & Another [1986] eKLR, substantial loss is the cornerstone of an application for stay. Equally, an applicant seeking an interlocutory injunction must satisfy the principles set out in Giella vs. Cassman Brown & Co. Ltd [1973] EA 358, as restated in Nguruman Limited vs. Jan Bonde Nielsen & 2 others [2014] eKLR, by establishing a prima facie case, irreparable injury and, where necessary, that the balance of convenience tilts in his favour. 17.The Applicant's case for injunction and stay is predicated on the allegation that the judgment was obtained without service. Having found that the judgment was regularly obtained, that foundation cannot stand. Furthermore, the Applicant has not demonstrated that any substantial loss incapable of compensation would be suffered beyond the ordinary consequences attendant to realization of a security offered voluntarily to secure a loan. 18.The charged properties remain securities for an admitted lending transaction, and there is no evidence that the Respondents are acting outside the statutory process governing realization of securities. I note that the Respondents have also demonstrated compliance with the prescribed execution process, including issuance of the redemption notice and notification of sale. 19.I am therefore not persuaded that the Applicant has established a prima facie case with a probability of success or satisfied the conditions for grant of stay under Order 42 Rule 6 of the Civil Procedure Rules. Disposition 20.The upshot is that the Notice of Motion dated 16th January 2026 lacks merit and is hereby dismissed with costs to the 1st Respondent. 21.Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 30TH DAY OF JULY 2026HON W A OKWANYJUDGE