https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5163

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT MILIMANI** **ELCA NO. 37 OF 2014** **UFUNDI SAVINGS & CREDIT** **COOPERATIVE SOCIETY LTD - APPELLANT/RESPONDENT** **VS** **TITUS E OBARA & 189 OTHERS - 2ND RESPONDENT /APPLICANT** **AND** **COOPERATIVE BANK OF KENYA - INTERESTED PARTY** **RULING** **[Notice of Motion dated 10/2/26 filed by the 2nd Respondent/Applicant]** 1. This application is brought under Section 38, 51, 1A, 1B, 3, 3A of the Civil Procedure Act, and Orders 22 Rules 7, 9, 29, 30, 48, 55, 68, 69, 82 and 83, and Order 50 Rule 1 of the Civil Procedure Act, and all other enabling provisions of the Law, seeking the following orders from the Court; * 1. Spent 2. The court be pleased to grant leave to the firm of Peter Warindu & Co Advocates to act for the 2nd Respondent 3. This court be pleased to execute its judgement and/or decree dated 6/1/2024 by directing that the suit property, L R No 209/2571, Nairobi City [Ufundi Coop Plaza], be disposed of by way of sale through private treaty, and that the proceeds from such sale be deposited with the Deputy Registrar for onward remittance to the applicants/decree holders. 4. Costs be provided for. 2. The application is based on the grounds annexed thereto and the supporting affidavit of Titus E Obara, sworn on 10/2/2026. The grounds are summarised as follows; 1. judgment in this matter was delivered on 20/12/2014. 2. That the court ordered the appellant, inter alia, to redeem the property, undertake its final disposal, and divide the proceeds of such sale in accordance with the said judgment. The appellant has refused to dispose of the property. 3. That the court issued a decree on 6/1/24, which has been pending execution to date without any explanation, despite the appellant being fully aware of it. 4. That instead of executing the said decree, the appellant has embarked on illegal collection and squandering of the rental income from the tenants in the suit property since the delivery of the said judgment, hence the need for intervention of the court. 5. The appellant is currently defunct and deregistered, and therefore the so-called Board of Directors is operating illegally and is thus incapable of executing the judgment. 6. Notwithstanding its position, it has filed annual returns with the Commissioner for Cooperatives. 7. The Commissioner of Cooperative Development has not responded to their requests to intervene; hence the application seeks the orders of the court herein. 8. The appellant was further accused of illegally collecting rent for its own use, contrary to the court's judgment, and of failing to renovate the suit property, which now stands dilapidated, with tenants threatening to vacate, thereby causing the owners irreparable harm and loss. 9. The directors of the appellant have obstructed the applicants by issuing a caveat emptor notice in the daily newspapers regarding the property, with the aim of preventing any sale or disposal of the property. 3. In opposing the application, the Respondent filed a replying affidavit sworn by Mr Makori, in which he deposed that the application is mischievous and brought in contempt of the Judgment dated 20/12/21 and the review application dated 10/5/23. He further deposed that the applicant lacks locus to bring this application and that the court is functus as the suit was conclusively determined by the aforementioned judgment and the ruling. 4. Further, it was deposed that the suit involved about 900 members, of whom 320 were parties to the suit, and of those 320, 200 were divided into several groups due to the applicant's misconduct during the proceedings. It is therefore uncertain which of the groups has instructed the 2nd respondent to make the application. 5. That the nature of the suit and the claim before the court were the payment of the loan owed to Cooperative Bank and the sale of Ufundi Plaza. He added that the appellant continues to pay the loan owing, as ordered by the court. The applicant has filed multiple applications since the delivery of the judgment in a bid to secure a favourable decision from the court by the back door. He averred that the appellants' mandate to sell the building, pay the loan, and distribute the balance to members remains in force. The court was urged to dismiss the application as frivolous. 6. In his further affidavit sworn on 27/2/26, he reiterated that he has locus to file the application, as he represents hundreds of fellow investors and owners of the appellant Society. That Makori lacks locus to swear the affidavit without the production of minutes authorising him to represent the Society. That the judgment did not authorise the appellant to collect rent from the building without rendering accounts to its members, and that, in so doing, it is committing an illegal act. That the appellant has placed a caveat emptor notice on the property to frustrate or prevent the sale of the property. 7. Additionally, Ufundi Cooperative is no longer a registered SACCo, and, as such, there are no appointed directors capable of implementing the court's judgment. The last attempt to sell the land by the appellant was 4 years ago, and it has not explained why it has not taken steps to sell the land to date. 8. The court has read and considered the submissions filed by the parties in this application. 9. The key issue is whether the application is merited. 10. With respect to the prayer for leave for counsel to come on record for the applicant, the court notes that the applicant has satisfied the threshold under Order 9 Rule 9 of the Civil Procedure Rules. It is therefore allowed. 11. This court rendered its decision on 5/6/26 in respect of the application filed by the 2nd respondent on 2/12/25. Inter alia, the applicant sought orders permitting it to collect rent from the building and to dispose of the property. The main prayer in the instant application is similar to prayer No b of the previous application. 12. The court notes that the appellants were ordered to dispose of the property, use the proceeds to pay the outstanding bank loan, and pay the balance to its members. The appellants have avowed that they are complying with the court's judgment by collecting rent and utilising the proceeds to pay the loan. That said, the appellants are expected to have shown minutes of the members' meeting in which the members were briefed on the implementation of the judgment. It is not enough to respond to the application without any evidence of compliance. 13. Moreso, in the face of allegations that the appellant is now defunct and that the board of directors has no capacity to implement the judgment, the court finds that the allegations are unsupported and amount to bare averments which do not aid the court in making a decision either way. It was incumbent upon the applicant to place cogent evidence before the court and to explain the measures they have taken in the event that their allegations have any truth. The court had alluded to this scenario in its previous ruling. 14. Noting that the judgment of the court has not been varied, appealed and/or reviewed, the court is of the view that the application is unmeritorious and it is dismissed. 15. Each party to bear their own costs. 16. Orders accordingly. **DATED, SIGNED AND DELIVERED AT NAIROBI THIS 6TH DAY OF AUGUST 2026 THROUGH MICROSOFT TEAMS.** **J G KEMEI** **JUDGE** **Delivered in the presence of;** 1. N/A for the Appellants 2. Mr Odhiambo Gwada for the 2nd Respondent 3. C/A – Mr Amos