[2023] KECPT 981 (KLR)

Thiora v United Nation Sacco Ltd & another (Tribunal Case 187/E244 of 2022) [2023] KECPT 981 (KLR) (Civ) (21 September 2023) (Ruling)

Neutral citation: [2023] KECPT 981 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 187/E244 of 2022

BM Kimemia, Chair, J. Mwatsama, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members

September 21, 2023

Between

Jacob Kirimi Thiora

Claimant

and

United Nation Sacco Ltd

1st Respondent

Philiphs International Auctioneer

2nd Respondent

Ruling

1. The Claimant is a member of the 1st Respondent Sacco from 1995, the time he started working with the United Nation offices in Nairobi.

2. In 2018,he left employment with United Nation and later in 2021 relocated to the United States

3. Before relocating to the United States the Claimant had obtained a loan facility with the 1st Respondent in 2016 of Kshs.4,660,000/=which was to repaid in 180 months at the rate of Kshs.62,060/= per month.

4. The loan was secured by charges over Land Title Number: Ntima/Igoki /7838 and Ntima /Igoki /4527.

5. Following numerous defaults in repaying the loan, the 1st Respondent issued the Claimant with a demand letter on 4th December ,2019.

6. On 9th July ,2021, the 1st Respondent issued the claimant with a Statutory Notice under Section 90 of the Land Act 2012, with the said Statutory Notice copied to the Claimants wife Agnes Kajuju Karimi .The Claimant had advised the 1st Respondent in writing to copy her wife in all communication as the wife was still in Kenya and was best placed to reach him faster incase of anything.

7. Just like there was no response to the demand letter, there was also no response to the Statutory Notice as the Claimant failed to regularize his loan repayment, necessitating the 1st Respondent to instruct the 2nd Respondent to commence the process of recovery of the loan by selling the charged properties.

8. The 2nd Respondent on 23rd February, 2022 served the Claimant with 45 days Redemption Notice, with the loan arrears standing at Kshs.4,530, 915/= upon the expiry of the Redemption Notice.

9. On 24th March, 2022, the Claimant under Certificate of Urgency, filed a Notice of Motion seeking temporary injunction and orders restraining the 1st and 2nd Respondent from either advertising for sale or disposing the two charged properties through auction, pending the determination of the suit. The Claimant also indicated in the Application for injunction that he had already identified a buyer willing to offset any amount of the loan outstanding and buy the said properties.

10. Issues Of Determinationi)Whether an injunction should issue restraining the 1st Respondent from advertising for sale or auctioning the charged properties, pending the determination of the suit,ii)Whether the order of prohibition should issue prohibiting any dealings with these charged properties,iii)Who bares the cost of the suitIssue One:i.Whether an injuction and or prohibitation should issue restraining the 1st Respondent from advertising for sale or auctioning the charged properties pending the determination of the suit.From facts adduced, it is not in dispute that the Claimant obtained a loan from the 1st Respondents with terms of that loan clearly spelt.It is also not in dispute from the facts adduced that the Claimant has not been consistent as agreed in repaying the loan. Reasons as to why he has not been repaying the loan consistently as agreed notwithstanding.Giella Vs Cassman & Company Limited gave Courts and Tribunals the three tenets to consider before issuing temporary injunction and they include;i.Whether the party who has brought the application for injunction before court has established prima a facie case with a high chance of success,ii.Whether the party who has brought the application for injunction before court stands to suffer irreparable damage, that cannot be compensated with an award of damages.iii.In the event of doubt, courts and Tribunal to decide on a balance of convenience.

11. From the evidence submitted, we make a finding that the Claimant has failed to fulfill the threshold for granting an injunction based on the fact that he is the party that has violated the terms of the loan agreement as agreed between the two parties and also that no rights of his have been violated in the process of initiating recovery for the loan.

12. Evidence before us tend to suggest that notices were served to the Claimant and or his wife as he had advised the Respondent procedurally in line with the applicable laws. The process of exercising the power of sale began with the demand letter of 4th December ,2019 followed almost two years later with the Statutory Notice of 9th July 2021, and finally with the Redemption Notice of 23rd February ,2022.

13. It is important to note that over the period or duration of initiating the recovery process of the loan arrears, either the Claimant has ignored the notices sent to him or his associates or not acted on promises he has himself made to the 1st Respondent -like the promise that he had identified a buyer willing to offset any amounts of the loan outstanding and buy the said properties.Issue Two:ii)Whether the party who has brought the application for injunction or prohibition before court stands to suffer irreparable damage that cannot be compensated with an award of damages.

11. It is important to mention that it is not the duty of this Tribunal to rewrite contracts between parties and this particular contract had foreseen some circumstances which may lead to the 1st Respondent exercising power of sale to enforce his rights in the contract. From evidence adduced ,the Claimant seem not to have a problem with the sale of the said properties as he had also indicated that he had found a buyer at some point who will settle the loan arrears and take the properties .

12. Given that he has not exercised that option as he had indicated, we cannot allow him to argue that he will suffer irreparable harm that cannot be compensated by costs.You cannot eat your cake and still have it.Issue Three:iii)in the event of doubt, courts and tribunal to decide on balance of convenience.

11. Given the evidence adduced, we make a finding that the balance of convenience is in favor of the Respondent, and as such dismiss the application with costs, based on the fact that the Claimant has failed to keep his own promises including the promise to pay at least one million shillings to service the loan by the end of February 2022.

Application dated 15. 3.2022 dismissed with costs.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 21ST DAY OF SEPTEMBER, 2023. Hon. Beatrice Kimemia Chairperson Signed 21. 9.2023Hon. J. Mwatsama Deputy Chairperson Signed 21. 9.2023Hon. Beatrice Sawe Member Signed 21. 9.2023Hon. Fridah Lotuiya Member Signed 21. 9.2023Hon. Philip Gichuki Member Signed 21. 9.2023Hon. Michael Chesikaw Member Signed 21. 9.2023Hon. Paul Aol Member Signed 21. 9.2023Tribunal Clerk JemimahBariki advocate holding brief for Miss Gachiri for the Claimant.Ombonya advocate for the Respondent – No appearanceHon. J. Mwatsama Deputy Chairperson Signed 21. 9.2023