Cooperative Bank of Kenya Limited v Koi & 3 others (Civil Appeal E025 of 2024) [2025] KEELC 4295 (KLR)

The claim sought enforcement of contracts executed between November 2001 and July 2005. Section 4(1) Cap 22 requires such suits within six years. The plaintiff knew of his entitlement when he registered a caution on September 29, 2006, so time ran from then. Suit should have been filed by 28 September 2012 but was filed nearly seven years late, and the court has no power to extend time in contractual claims.

The 1st respondent held only unregistered sale agreements with the deceased chargor. Following Quantum Petroleum, a non-registered proprietor cannot seek an injunction against exercise of statutory power of sale. He was also not party to the lending contract between the appellant and the 2nd respondent, so the magistrate erred in ordering that the 2nd respondent repay the loan from his own resources rather than through realization of the security.

The chargor died before trial; no substitution occurred within one year, so the suit abated by operation of law on October 18, 2022. Because the plaintiff's enforceable rights against the other defendants depended on sustaining the claim against the chargor, abatement destroyed the whole suit regardless of its merits.

The magistrate held that the one-and-a-half portion was unavailable as security because of the prior sale agreement. That was a misdirection: an unregistered instrument binds only the parties inter se and cannot impair registered third-party rights. No fraud was pleaded against the appellant, so there was no basis to challenge its title as chargee.