Times U Sacco Society Limited v Igweta & another

3. Despite being served with the summons to enter appearance as well as the pleadings, the defendants neither entered appearance nor led defence. The matter proceeded for formal proof hearing on 13th February, 2024. 4. The plainti called one witness, Catherine K. Mwambi (P.W 1) who adopted her witness statement dated 21st August, 2023 which is the adavit in support of the Originating Summons. P.W 1 testied that she was the Chief Executive Ocer of the plainti herein. She stated that the 1st defendant applied for a loan from the plainti on 17th August 2017 and supplied as collateral title deed for Land Title Number Nyaki/Chugu/1021 which is a subdivision of land title number Nyaki/Chugu/234. That the plainti accepted the title deed to the suit land after conducting due diligence and conrming that the land genuinely belonged to the 1st defendant who had purchased the same from the 2nd defendant. 5. 1 testied that unfortunately for the plainti, the High Court in Meru Succession cause No. 305 of 2008 delivered a judgment on 14th December 2020 through which judgment, all resultant sub-divisions of land title number Nyaki/chugu/234 were cancelled. That this left the plainti exposed since it had no security for the loan advanced to the 1st defendant. That from the said judgment, it is evident that the 2nd defendant has perpetuated the fraud which led to the cancellation of the sub-divisions resulting from Nyaki/Chugu/234. 6. According to P.W 1 the High Court in Meru Succession cause No. 305 of 2008 did recognize that the plainti as well as other parties have interest in part of the deceased’s estate and stayed the implementation of its orders for thirty days to allow parties such as the plainti herein to lodge whatever claims they may have. 7. 1 testied that the 1st defendant has since stopped servicing the loan disbursed by the plainti which at the time of ling the suit stood at Kshs. 2,686,104.00. That based on the High Court’s judgment, the plainti is left holding onto a worthless paper with no security to the loan advanced to the 1st defendant. P.W 1 stated that it is only fair that the court appreciates the plainti as a bonade creditor and innocent of any subsequent dealings and to order for recovery of its security from the estate. The plainti therefore prays for the part of the land Parcel No. Nyaki/Chugu/234 to be transferred to it that comprises the part where the 1st defendant has put up a building which let the value of the parcel held in his name to be high, thus informing the loan amount disbursed to them. P.W 1 produced the annextures attached to the supporting adavit as exhibits, and they include a board resolution dated 11th August 2023, a copy of the loan application form, a copy of the title deed for the suit property, a copy of appraisal form, a copy of ocial search for the suit property, a copy of the loan agreement dated 23rd August 2017, a copy of the judgment in Meru High Court Succession Cause No. 305 of 2008, a copy of the 1st defendant’s loan statement, a copy of the charge documents and a copy of a notice dated 11th June 2018. 8. The plainti led written submissions dated 29th February, 2024 through the rm of Mutuma & Koskei advocates wherein they gave a summary of the case and evidence. The plainti’s counsel cited the provisions of Order 37 Rule (1) (a) of the Civil Procedure Rules under which the Originating Summons is brought. They also quoted paragraph 25 of the judgment in High Court Succession Cause No. 305 of 2008 in which the court directed the plainti herein to pursue their claim before this forum. The plainti’s counsel also relied on the case of Mamta Peeush Mahajau (suing on behalf of the estate of the late Peeush Premlal Mahajan) Vs Yashwant Kamari Mahejau (sued personally and also executrix of the estate and beneciary of the estate of the late Krishan Lal Mahajan [2017]eKLR and Talewa Road Contractors Limited & another Vs Jamii Bora Charitable Trust Registered Trustees & another. It is submitted that the plainti has provided ample evidence with respect to its claim and the court https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7560/eng@2024-11-14 2

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was urged to make a nding that not only is the evidence by the plainti uncontroverted but that the plainti has proved its case to the required standards. 9. Having considered the pleadings, the evidence on record and the submissions, the issue for determination is whether the plainti is entitled to the reliefs sought and costs. 10. From the evidence on record, there is no dispute that the 1st defendant applied for a loan from the plainti on 17th August 2017. The 1st defendant supplied a title deed for land title number Nyaki/ Chugu/1021 which is a subdivision of title number Nyaki/Chugu/234 as collateral. The plainti accepted the said title after conducting due diligence and disbursed the loan to the 1st defendant. The High Court in Meru Succession cause No. 305 of 2008 pursuant to an application dated 29th October, 2018 delivered a judgment dated 16th December, 2020 ordering among others that land title number Nyaki/Chugu/234 was to revert to the deceased. In that judgment, the High court did recognize that the plainti as well as other parties have interests in part of the deceased’s estate. Indeed, the court stayed the implementation of its orders for 30 days to allow parties such as the plainti to lodge whatever claims they may have. Pursuant to that, the plainti led the instant suit. 11. It is evident that the defendants herein were served with summons to enter appearance and pleadings. They did not however, enter appearance nor le defence. The plainti’s suit is therefore undefended. However, even if the suit is not defended, the plainti still has the duty to formally prove their case on a balance of probabilities as required by law. 12. In this case, the plainti adduced evidence, including documentary evidence, to support that there was an application made by the 1st defendant to be advanced a loan by the plainti and which was infact advanced. The 1st defendant gave a title of the suit property as collateral. Whereas that title was later cancelled by an order of court in the succession cause, and the land ordered to revert to the deceased, the court in the succession cause recognized that some parties including the plainti had interest in the said land. The court even went ahead to stay the implementation of its orders to allow such parties as the plainti to lodge their claim. In this case, the defendants did not tender any evidence to counter and or controvert the testimony of P.W1. The plainti’s evidence was not rebutted and remains uncontroverted. The plainti pleaded and tendered evidence to support their claim. 13. Consequently, it is my nding and I so hold that the plainti has proved its case on a balance of probabilities. My answer to the 1st, 2nd and 3rd questions for determination in the Originating Summons dated 21st August 2023 are in the armative. Accordingly, judgment is entered for the plainti against the defendants as prayed. The plainti will also have the costs of the suit. 14. Orders accordingly. DATED SIGNED AND DELIVERED AT MERU THIS 14TH DAY OF NOVEMBER, 2024. In The Presence Of Court assistant- Tupet. Mutuma for plainti No appearance for defendant C.K YANO ELC JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7560/eng@2024-11-14 3

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