Muga v Engen Kenya Limited & 6 others (Environment and Land Case 14 of 2013 & 92 of 2009 (Consolidated)) [2026] KEELC 2046 (KLR)

Introduction. 1. This ruling is in respect of the Plaintiff/Applicant’s Notice of Motion application dated 25th July, 2025. The application is expressed to be brought under Articles 40, 50 & 159 (2) (d) of the Constitution of Kenya, Sections 3A & 63 (e) of the Civil Procedure Act and Order 9 Rule 9, Order 20 Rule 1 & 20, Order 40 Rules 1, 2 & 3 and Order 51 Rule 1 of the Civil Procedure Rules. 2. The application seeks the following orders: a. Spent b. That this pleased Honourable to grant Court leave to be the Plaintiff to act in person in place of the firm of Njau, Kayai & Co. Court be Advocates. c. Spent d. That this Honourable pleased to issue an injunction to restrain the 1st Interested Party servants, agents Defendant by and themselves, and/or legal -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 14 OF 2013 [KERICHO] Page 2 of 49

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representatives selling, from auctioning, transferring, alienating, interfering with possession or occupation or dealing in any other manner with property the namely Plaintiff’s title Kericho/Kipchimchim/2722 in Kericho County No. situate pending the rendering of a proper and accurate account of the loan the 1 st Defendant allegedly gave the 2nd and 3rd Defendants. e. That this pleased Honourable to issue Court an be order compelling the 1st Defendant to render a proper and accurate account of the overdraft facility of Kshs. advanced 2,150,000/= to the allegedly 2nd and 3rd Defendants. f. That the costs of this application be in the cause. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 14 OF 2013 [KERICHO] Page 3 of 49

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3. The application is based on the grounds on its face and the supporting affidavit of Jane Achieng Muga that is sworn on 25th July, 2025. Factual Background. 4. The Plaintiff/Applicant filed the present suit vide the Plaint dated 9th July, 2013 where she sought the following prayers; a. An order declaring the charge if any, entered into by the 1st, 2nd and 3rd Defendants over LR No. Kericho/Kipchimchim/2722 fraudulent, null and void. b. An order declaring presented over the title LR deed No. Kericho/Kipchimchim/2722 as security and forming any charge thereof by the 1st, 2nd and 3rd Defendants as fraudulent, a forgery and fake and therefore null and void. c. An order declaring the purported auction held on 31st May, 2013 by the 4th Defendant, an agent of the 1st Defendant over LR No. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 14 OF 2013 [KERICHO] Page 4 of 49

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Kericho/Kipchimchim/2722 sold to the 5th and 6th Defendants as fraudulent, null and void and that the same be set aside and in the alternative, declare it an act in contempt of the Court order in Kericho HCCC No. 92 of 2009. d. An order of permanent injunction restraining the 1st, 2nd, 3rd, 4th, 5th and 6th Defendants servants and advertising, private and offering or for or from sale public mortgaging, transferring agents, employees treaty leasing, their by auction, charging, assigning and/or otherwise dealing with land reference no. Kericho/Kipchimchim/2722. e. A permanent order of injunction restraining the 1st, 2nd, 3rd, 4th, 5th and 6th Defendants by themselves, their agents, from servants entering and/or into, employees remaining on, evicting, transferring, dealing or in any manner interfering parcel with land number Kericho/Kipchimchim/2722. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 14 OF 2013 [KERICHO] Page 5 of 49

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5. The 1st Defendant/Respondent filed a Statement of Defence dated 18th July, 2014 where it denied the averments in the Plaint and sought that the Plaintiff’s suit be dismissed with costs. 6. The 3rd Defendant/Respondent filed a Statement of Defence dated 3rd February, 2015 where he denied the averments in the Plaint but sought that the Plaintiff’s suit be allowed against the 1st, 2nd, 4th, 5th and 6th Defendants/Respondents. 7. On 24th July, 2014, the present suit was consolidated with ELC Case No. 92 of 2009 that was instituted by the 3 rd Defendant/Respondent. 8. The 3rd Defendant/Respondent vide the Plaint dated 12 th June, 2008 sought the following prayers; a. A declaration that the charge registered against the Plaintiffs parcel number Kericho/Kipchimchim/2722 in favour of the 2nd Defendant is fraudulent, unlawful, illegal null and void and the -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 14 OF 2013 [KERICHO] Page 6 of 49

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Land Registrar be ordered to cancel the same. b. A perpetual injunction restraining the Defendants from selling by way of public auction or howsoever advertising for sale or in any other manner interering (sic) with possession the Plaintiffs and/or ownership, enjoyment parcel of his number Kericho/Kipchimchim/2722. c. Costs and interests. 9. The 1st Defendant/Respondent filed a Statement of Defence dated 24th June, 2008 wherein it denied the averments in the Plaint and sought that the 3rd Defendant/Respondent’s suit be dismissed with costs. 10. The suits were heard and judgement delivered on 9 th May, 2018. The Court dismissed Kericho ELC Case No. 92 of 2009 and allowed the Plaintiff’s suit in the following terms; a. A declaration is hereby issued that the purported public auction held on 31st May, 2013 by the 4th Defendant, -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 14 OF 2013 [KERICHO] Page 7 of 49

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an agent of the 1st Defendant over LR No. Kericho/Kipchimchim/2722 sold to the 5th and 6th Defendant is unlawful, null and void and that the same is hereby set aside. b. A permanent order of injunction is hereby issued only to the extent that the 1st Defendant is restrained from transferring the suit property to the 5th and 6th Defendants. c. The sale of LR Kericho/Kipchimchim/2722 No. is hereby cancelled and the 1st Defendant is ordered to refund the purchase price paid by the 5th and 6th Defendants without interest. d. It is hereby ordered that unless the amount outstanding to the 1st Defendant is fully paid by the 2 nd and 3rd Defendants, the 1st Defendant is at liberty to exercise its statutory power of sale in respect of the suit property in strict conformity with the law. e. Considering the circumstances of this case, each party shall bear its own costs. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 14 OF 2013 [KERICHO] Page 8 of 49

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11. The application under consideration first came up for hearing on 29th July, 2025 when the Court directed that it be served upon the Respondents. Subsequently, the 1 st Defendant/Respondent filed a Notice of Appointment of Advocates dated 7th October, 2025. 12. The application came up for hearing on 8 th October, 2025 when the Court directed that it be canvassed by way of written submissions. 13. The application was mentioned severally to confirm filing of submissions and on 21st January, 2026. it was reserved for ruling. The Plaintiff/Applicant’s Contention. 14. The Plaintiff/Applicant contends that she is the wife of the 3 rd Defendant/Respondent who is the registered owner of land parcel No. Kericho/Kipchimchim/2722. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 14 OF 2013 [KERICHO] Page 9 of 49

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15. The Plaintiff/Applicant also contends that her matrimonial home is located on the said parcel of land. 16. The Plaintiff/Applicant further contends that on 14 th July, 2025, the 1st Defendant/Respondent and the Interested Party/Respondent advertised the suit property for sale. 17. It is the Plaintiff/Applicant’s contention that the intended sale was to take place on 28th July, 2025. 18. It is also the Plaintiff/Applicant’s contention that she was not able to trace one Benson Kayai who was her previous Counsel on record in order to defend her claim. She goes on to state that she wrote a letter dated 22 nd July, 2025 that was addressed to the Law Society of Kenya and the Law Society of Kenya responded vide a letter dated 22 nd July, 2025 where it stated that it was unaware of his whereabouts. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 14 OF 2013 [KERICHO] Page 10 of 49

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19. It is further the Plaintiff/Applicant’s contention that in the year 2001, the 2nd and 3rd Defendants/Respondents charged the suit parcel of land to the 1 st Defendant/Respondent to secure a credit facility of Kshs. 2,150,000/= for the purchase of fuel and fuel products from the 1st Defendant/Respondent. 20. It is the Plaintiff/Applicant’s contention that the suit parcel of land was later auctioned and the Court set aside the said sale in the judgement that was delivered in this suit. 21. She contends that the 1st Defendant/Respondent has not complied with the directions issued in the judgement of giving notices prior to the sale. 22. She also contends that the 1 st Defendant/Respondent has refused to render a proper account of the 2 nd and 3rd Defendants/Respondents credit facility of Kshs, 2,150,000/=. She goes on to state that this is meant to clog her ability to repay the loan. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 14 OF 2013 [KERICHO] Page 11 of 49

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23. She further contends that the Interested Party intends to sell the suit parcel of land without issuing the relevant notices under the Auctioneers Act, 1996 and the Auctioneers Rules, 1997. She goes on to state that she has not been served with the ninety-days’ notice as provided for under Section 90(1) and (3) of the Land Act, the forty-days’ notice as provided for under Section 96(2) of the Land Act and forty-five days’ notice as provided for under Rule 15 (d) of the Auctioneers Rules. 24. It is her contention that even though she is not a party to the loan taken by the 2nd and 3rd Defendants/Respondents, she is ready and willing to deposit in Court kshs. 2,150,000/= within fourteen days of the Court issuing such an order. 25. It is also her contention that she is also willing to deposit the balance within forty-five days once the proper and accurate account has been rendered. She goes on to state that this is as per Order 20 Rule 20 of the Civil Procedure Rules. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 14 OF 2013 [KERICHO] Page 12 of 49

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26. She ends her deposition by stating that the property has not been valued since the year 2018 as provided for under the Auctioneers Act, 1996 and the Auctioneers Rules, 1997. The 1st Defendant/Respondent’s Response. 27. In response to the Plaintiff/Applicant’s application, the 1 st Defendant/Respondent filed a Replying Affidavit sworn by Stanley Njiru its treasurer. 28. He deposes that the Court already delivered judgement in this matter and therefore the application under consideration is res judicata and the Court is functus officio. 29. He also deposes that the Court in its judgement held that the Chargor had been served by way of registered post through the address provided on the charge. 30. He further deposes that the Court also found that the 1 st Defendant/Respondent was not a banking institution and therefore the in duplam rule did not apply to it. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 14 OF 2013 [KERICHO] Page 13 of 49

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31. It is his deposition that the Court ordered that unless the outstanding sum is paid in full, the 1 st Defendant/Respondent is at liberty to exercise its statutory power of sale in conformity with the law. 32. It is also his deposition that after the delivery of judgement, the 1st Defendant/Respondent served the ninety-days’ notice and the forty days’ notice upon the Chargor and the Plaintiff/Applicant. 33. It is further his deposition that after the said notices were not complied with, the 1st Defendant/Respondent instructed the auctioneers who issued the forty-five days’ redemption notice. 34. He deposes that the Plaintiff/Applicant and the 3rd Defendant/Respondent failed to comply and therefore the 1 st Defendant/Respondent commenced the process of realization of the security. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 14 OF 2013 [KERICHO] Page 14 of 49

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35. He also deposes that once the 1st Defendant/Respondent commenced the process, the Plaintiff/Applicant filed Kericho ELC Case No. 11 of 2023 raising the same issues. 36. He further deposes that the Court delivered a ruling on 20 th February, 2025 and struck out the suit. 37. It is his deposition that the Plaintiff/Applicant is forum shopping while the debt continues to accrue. 38. It is also his deposition that the 1st Defendant/Respondent conducted a valuation of the suit parcel of land in compliance with Section 97 of the Land Act. 39. It is further his deposition that the Plaintiff/Applicant’s contention that she does not know the outstanding loan amount is not true as this issue was subject of two previous proceedings where the Plaintiff/Applicant was a party. He goes on to state that despite the Plaintiff/Applicant having the said knowledge, she has failed to redeem the said loan. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 14 OF 2013 [KERICHO] Page 15 of 49

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40. He deposes that the Plaintiff/Applicant has not established a prima facie case as there is no dispute to indebtedness arising from the breach and default. 41. He also deposes that an injunction cannot issue where there is a debt due and all the statutory processes leading to the realization of the security have been complied with. 42. He ends his deposition by urging the Court to dismiss the Plaintiff/Applicant’s application. The Plaintiff/Applicant’s Response to the 1 st Defendant/Respondent’s Replying Affidavit. 43. The Plaintiff/Applicant filed a Supplementary Affidavit sworn on 24th November, 2025 in response to the 1 st Defendant/Respondent’s Replying Affidavit. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 14 OF 2013 [KERICHO] Page 16 of 49

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44. She reiterates that she was not party to the fuel delivery contract between the 1st, 2nd and 3rd Defendants/Respondents. 45. She also reiterates that she is the wife of the 3 rd Defendant/Respondent and she intends to settle the pending loan facility with the 1st Defendant/Respondent in order to salvage her matrimonial home. 46. She deposes that in the application under consideration, she is seeking for an order to compel the 1st Defendant/Respondent to render accounts of the money that is allegedly outstanding from the credit facility. 47. She also deposes that the loan facility was alleged to be Kshs. 2,150,000/= while the outstanding loan facility is said to be Kshs. 39,547,780/=. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 14 OF 2013 [KERICHO] Page 17 of 49

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48. She further deposes that the 1st Defendant/Respondent should supply the said accounts so that she can compute and verify the amount due before paying. 49. It is her deposition that she seeks to know the following things; a. The petrol stations from which the fuel was collected for delivery. b. The details of the motor vehicles that delivered the fuel. c. The number of liters of fuel that was delivered. d. The place of delivery of the said fuel. e. The cost per litre of the fuel at the time of each delivery. f. Delivery receipts for the said fuel. g. Dates when the delivery was made. h. The date when the last delivery was made. 50. It is also her deposition that the Court should compel the 1 st Defendant/Respondent to provide her with the evidence that -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 14 OF 2013 [KERICHO] Page 18 of 49

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they delivered fuel products amounting to Kshs. 2,150,000/=. 51. It is further her deposition that the 1st Defendant/Respondent attached a table at pages 138 and 139 of its Replying Affidavit which it alleged to be the accounts for the credit facility extended to the 2nd and 3rd Defendants/Respondents together with the interest accrued. 52. She deposes that in the said statement of accounts, the principal amount changes from Kshs. 2,150,000/= in the month of July, 2007 to Kshs. 5,674,000/=. She goes on to state that the at page 139 the amount owing is said to be Kshs. 5,674,000/= while at page 138 the total amount due is Kshs. 39,547,780/=. 53. She also deposes that no explanation has been given for the said changes and it is not clear how much money is due and owing. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 14 OF 2013 [KERICHO] Page 19 of 49

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54. She further deposes that the she does not have access to the terms of the credit facility and 1 st the Defendant/Respondent has not afforded the same to her. 55. It is her deposition that even if the 1 st Defendant/Respondent rendered the accounts of the loan facility and the value of the petroleum facilities delivered is confirmed to be Kshs. 2,150,000/=, the amount payable cannot be Kshs. 39,547,780/=. 56. It is also her deposition that the 1st Defendant/Respondent has failed to avail the documents that relate to the loan facility for her to verify the amount owed. 57. It is further her deposition that she procured the services of the Interest Rates Advisory Center who generated a report on the loan facility of kshs. 2,150,000/=. She goes on to state that in their report they found that the amount recoverable by the 1st Defendant/Respondent should not exceed Kshs. 4,300,000/=. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 14 OF 2013 [KERICHO] Page 20 of 49

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58. She deposes that the Interest Rates Advisory Center stated that the loan facility stopped accruing interest in September, 2006 after hitting the in duplam point. She goes on to state that the Interest Rates Advisory Center is ready to attend Court and defend its report. 59. She also deposes that the Court should make the finding that the correct amount payable is as per the report prepared by the Interest Rates Advisory Center. 60. She ends her deposition by reiterating that the 1 st Defendant/Respondent should render accounts so that she can know how much money is owed under the loan facility. Issues for Determination 61. The Plaintiff/Applicant filed submissions on 1 st December, 2025, the 1st Defendant/Respondent filed its submissions on 4th November, 2025 and supplementary submissions on 15 th December, 2025. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 14 OF 2013 [KERICHO] Page 21 of 49

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62. The Plaintiff/Applicant submits on the following issues; a. Whether she should be heard. the 1st Defendant/Respondent should b. Whether render accounts. c. What accounts should be rendered. 63. On the first issue, the Plaintiff/Applicant relies on Articles 25, 50(1) and 159 (1)(d) of the Constitution of Kenya, the judicial decision of Evans Odhiambo Kidero & 4 Others vs Ferdinand Ndungu Waititu & 4 Others [2014] eKLR and submits that the Court should accord her the right to a fair hearing. 64. On the second issue, the Plaintiff/Applicant relies on the judicial decision of Margaret Njeri Muiruri vs Bank of Baroda [2014] eKLR reiterates her averments in the affidavit in support of the application and urges the Court to compel the 1st Defendant/Respondent to supply the account records for her to verify the outstanding loan amount. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 14 OF 2013 [KERICHO] Page 22 of 49

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65. The Plaintiff/Applicant also submits that the 1 st Defendant/Respondent has not availed any evidence to show that the value of the fuel that was supplied amounted to Kshs. 2,150,000/=. 66. The Plaintiff/Applicant reiterates the averments in her supplementary affidavit and relies on the judicial decisions of Kenya Akiba Micro Financing Limited vs Ezekiel Chebi & 14 Others [2012] eKLR, Stanley Mombo Amuti vs Kenya Anti-Corruption Commission [2019]eKLR as was cited in Kim Jong Kyu vs Housing Finance Company Limited & 2 Others [2015] eKLR. 67. It is the Plaintiff/Applicant’s submissions that the law shuns unjust enrichment and that the 1 st Defendant/Respondent contends that the amount owed is Kshs. 39,547,780/=. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 14 OF 2013 [KERICHO] Page 23 of 49

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68. It is also the Plaintiff/Applicant’s submissions that the said amount claimed by the 1st Defendant/Respondent is not supported by any evidence. 69. It is further the Plaintiff/Applicant’s submissions that even though the Court delivered judgement, it is not functus officio as the application flows from the judgement of the Court. 70. The Plaintiff/Applicant also submits that the application under consideration is not res judicata as it only seeks to ensure compliance with the judgement of the Court. 71. The Plaintiff/Applicant further submits that the various judgements of the Court that the 1st Defendant/Respondent refers to did not declare the loan facility owed. 72. It is the Plaintiff/Applicant’s submissions that the 1 st Defendant/Respondent has relied on the judicial decisions of Raila Odinga & Others vs Independent Electoral & -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 14 OF 2013 [KERICHO] Page 24 of 49

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Boundaries Commission & 3 Others [2013] eKLR and V. Chokaa & Co. Advocates vs Francis Thoya, County Secretary, Mombasa County Government and 4 Others [2021] KEHC 260 (KLR) where it was held that a Court only exercises power over a particular issue once. 73. It is also the Plaintiff/Applicant’s submissions the said authorities are distinguishable from the present suit as the Court has not made a determination on the issue of rendering accounts. 74. It is further the Plaintiff/Applicant’s submissions that the 1 st Defendant/Respondent has also relied on the judicial decisions of Mumbu Holdings Ltd vs Spire Bank Ltd & 5 Others [2021] eKLR, V. Chokaa & Co. Advocates vs Francis Thoya, County Secretary, Mombasa County Government & 4 Others [2021] eKLR. The Plaintiff/Applicant reiterates that the Court has not made a determination on the issue of rendering of accounts. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 14 OF 2013 [KERICHO] Page 25 of 49

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75. On the third issue, the Plaintiff/Applicant reiterates that the 1st Defendant/Respondent should render accounts to show how the sum of Kshs. 2, 150,000/= escalated to Kshs. 39, 547, 780/=. 76. The Plaintiff/Applicant reiterates the averments in her Supplementary Affidavit and while relying on Section 27 of the Civil Procedure Act and the judicial decision of Jasbir Singh Rai & 3 Others vs Tarlochan Singh Rai & 4 Others [2013] eKLR urges the Court to allow her application with costs. 77. The 1st Defendant/Respondent submits on the following issues; a. Whether the instant application is barred by the doctrine of res judicata and the Court is functus officio. b. Whether the requisite statutory notices were issued. c. Whether the suit property was valued. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 14 OF 2013 [KERICHO] Page 26 of 49

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d. Whether the Plaintiff has satisfied the conditions for granting an order of temporary injunction. 78. The 1st Defendant/Respondent relies on Section 7 of the Civil Procedure Act, the judicial decision of V. Chokaa & Co. Advocates vs Francis Thoya, County Secretary, Mombasa County Government & 4 Others [2021] eKLR and submits that the application under consideration is res judicata as the Court already delivered judgement on the issues that the Plaintiff/Applicant is reintroducing in the application under consideration. 79. It is the 1st Defendant/Respondent’s submissions that the parties are the same save for the Interested Party/Respondent. 80. It is also the 1st Defendant/Respondent’s submissions that the Plaintiff/Applicant is re-litigating on issues that have already been determined by the Court. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 14 OF 2013 [KERICHO] Page 27 of 49

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81. The 1st Defendant/Respondent relies on the judicial decisions of Mumbu Holdings Ltd vs Spire Bank Ltd & 5 Others [2021] KEHC 15 (KLR), Raila Odinga & 2 Others vs Independent Electoral & Boundaries Commission & 3 Others [2013] eKLR and submits that the Court is functus officio. 82. The 1st Defendant/Respondent also submits that the Court cannot therefore hear and determine the Plaintiff/Applicant’s application. 83. The 1st Defendant/Respondent reiterates its averments in the Replying Affidavit and urges the Court to dismiss the Plaintiff/Applicant’s application with costs. 84. On the second issue, the 1st Defendant/Respondent submits that it has attached a Statement of Accounts to its Replying Affidavit and while relying on Section 131 of the Land Act submits that the Plaintiff/Applicant was served with the 45 -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 14 OF 2013 [KERICHO] Page 28 of 49

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days’ redemption notice and a notification of sale dated 19 th September, 2023. 85. The 1st Defendant/Respondent relies on the judicial decision of Nyagilo Ochieng & another vs Kenya Commercial bank Limited [1996] eKLR and submits that it has attached to its Replying Affidavit certificates of posting of the respective statutory notices that were served upon the Plaintiff/Applicant. 86. The 1st Defendant/Respondent also relies on the judicial decision of Faulu Microfinance Bank Limited vs Wanyaga & another [2022] eKLR and submits that the statutory notices were issued to the Plaintiff/Applicant vide P.O Box No. 840 Kericho which address was provided by the 3rd Defendant/Respondent. 87. On the third issue, the 1st Defendant/Respondent submits that Dominion Valuers Limited valued the suit property and prepared a report dated 14th August, 2023. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 14 OF 2013 [KERICHO] Page 29 of 49

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88. The 1st Defendant/Respondent also submits that the Plaintiff/Applicant’s contention that the intended sale is being undertaken without a forced sale valuation is without merit. 89. On the fourth issue, the 1st Defendant/Respondent relies on the judicial decision of Mrao Ltd vs First American Bank of Kenya Limited and 2 Others [2003] eKLR and submits that the Plaintiff/Applicant has not demonstrated a prima facie case. 90. It is the 1st Defendant/Respondent’s submissions that the borrower defaulted in repaying the loan and therefore its right to sell the charged property automatically crystalized. 91. The 1st Defendant/Respondent relies on the judicial decisions of Ambient Construction v National Bank of Kenya Limited -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 14 OF 2013 [KERICHO] Page 30 of 49

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[2019] eKLR, Kiplagat & another vs Consolidated Bank [2022] eKLR and submits that the Plaintiff/Applicant has come to Court with unclean hands. 92. The 1st Defendant/Respondent also submits that the loan facility was advanced in the year 2001 and despite the Court according the Plaintiff/Applicant and her spouse an opportunity to redeem the property, they failed to do so. 93. The 1st Defendant/Respondent further submits that the Plaintiff/Applicant has been in possession of the charged property without discharging the debt. 94. It is the 1st Defendant/Respondent’s submissions that their conduct amounts to an abuse of the Court process and is a deliberate attempt to frustrate its rights while the debt continues to accrue interest. 95. The 1st Defendant/Respondent relies on the judicial decisions of Amina Karama vs Njagi Gachangua & 3 Others -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 14 OF 2013 [KERICHO] Page 31 of 49

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[2020] eKLR, Tengeri N. Osoro vs Standard Chartered Bank & another HCC No. 120 of 2022 (unreported) as was cited in Access Bank Kenya PLC vs Mengich & another [2014] KEHC 5682 (KLR) and submits that the issue of whether it has overcharged interest was already dealt with and addressed by the Court and the issue is therefore res judicata. 96. The 1st Defendant/Respondent submits that the outstanding loan facility stands at Kshs. 39,547,780/= and it has followed due process for the intended auction. 97. The 1st Defendant/Respondent relies on the judicial decision of Highgrove Holdings Limited vs I & M Bank Limited & Garam Investment Limited [2019] KEHC 12145 (KLR) and submits that the Plaintiff/Applicant has not demonstrated that she will suffer harm that cannot be adequately compensated by an award of damages. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 14 OF 2013 [KERICHO] Page 32 of 49

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98. It is the 1st Defendant/Respondent’s submissions that the once an Applicant fails to establish a prima facie case, the Court need not to consider the other aspects of determining whether an injunction should issue. 99. The 1st Defendant/Respondent concludes its submissions by urging the Court to dismiss the Plaintiff/Applicant’s application with costs. 100. In its supplementary submissions, the 1 st Defendant/Respondent submits that the Plaintiff/Applicant’s supplementary affidavit ought to be struck out as it has introduced new issues which were not raised during the hearing and determination of the present suit. 101. The 1st Defendant/Respondent also submits that the Court is functus officio and it cannot therefore consider issues that were not pleaded. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 14 OF 2013 [KERICHO] Page 33 of 49

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102. The 1st Defendant/Respondent further submits that the said issues include the documentation on the liters of fuel that were supplied. 103. It is the 1st Defendant/Respondent’s submissions that the Plaintiff/Applicant has annexed a report prepared by IRAC to dispute the amount due while relying on the in duplam rule. 104. The 1st Defendant/Respondent reiterates that the Court addressed the issue of the in duplam rule in its judgement and therefore the said issue is res judicata. 105. The 1st Defendant/Respondent reiterates that the Plaintiff/Applicant filed ELC Case No. 11 of 2023 which suit raised among other issues the loan amount due. 106. The 1st Defendant/Respondent also reiterates that the said suit was struck out on 20th February, 2025 and the Plaintiff/Applicant has filed an appeal. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 14 OF 2013 [KERICHO] Page 34 of 49

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107. The 1st Defendant/Respondent submits that the said issue of accounts is before the Court of Appeal and it cannot therefore be subject of the present proceedings. 108. The 1st Defendant/Respondent also submits that the IRAC Report constitutes fresh evidence whose veracity ought to be tested by way of cross examination. 109. The 1st Defendant/Respondent relies on the judicial decision of Kenya Airports Authority vs Mitu-Bell Welfare Society & 2 Others [2016] KECA 432 (KLR) in support of its submissions. 110. The 1st Defendant/Respondent further submits that it has supplied the Plaintiff/Applicant with up to date statements in each of the suits she has filed that include the outstanding loan balance and interest computations. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 14 OF 2013 [KERICHO] Page 35 of 49

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111. The 1st Defendant/Respondent submits that the contractual loan agreement provided the interest rate to be 3% per month subject to variation. 112. The 1st Defendant/Respondent also submits that the loan facility has remained unpaid since the year 2001 and therefore arrears have accumulated. 113. It is the 1st Defendant/Respondent’s submissions that the Plaintiff/Applicant concedes that a loan facility was extended to her husband and expresses willingness to pay the loan. 114. It is also the 1st Defendant/Respondent’s submissions the request for documentation on fuel delivery is irrelevant and is an attempt to further litigate on issues post judgement. 115. The 1st Defendant/Respondent concludes its submissions by urging the Court to dismiss the Plaintiff/Applicant’s application with costs. Analysis and Determination. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 14 OF 2013 [KERICHO] Page 36 of 49

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116. I have considered the Plaintiff/Applicant’s application, the response thereto, the Plaintiff/Applicant’s Supplementary Affidavit and the rival submissions and it is my view that the following issues arise for determination; a. Whether the Plaintiff/Applicant should be granted leave to act in person. b. Whether this Court is functus officio. c. Whether the application dated 25 th July, 2025 is res judicata. d. Whether the application dated 25 th July, 2025 has merit. e. Who should bear costs of the application. A. Whether the Plaintiff/Applicant should be granted leave to act in person. 117. The Plaintiff/Applicant contends that she is unable to trace her former advocates on record and she therefore seeks for leave to act in person. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 14 OF 2013 [KERICHO] Page 37 of 49

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118. Order 9 Rule 9 of the Civil Procedure Rules provides as follows; “When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such change or intention person shall not to be act in effected without an order of the Court— (a)upon an application with notice to all the parties; or (b)upon a consent filed between the outgoing proposed advocate incoming and the advocate or party intending to act in person as the case may be.” 119. It is not disputed that the Plaintiff/Applicant was previously represented by Counsel. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 14 OF 2013 [KERICHO] Page 38 of 49

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120. Consequently, the Plaintiff/Applicant is hereby granted leave to act in person and in any case, the said prayer is not opposed by the 1st Defendant/Respondent. B. Whether this Court is functus officio. 121. The Plaintiff/Applicant is seeking that the Court issues an order of injunction to restrain the 1 st Defendant/Respondent and the Interested Party/Respondent from selling land parcel No. Kericho/Kipchimchim/2722 pending the rendering of accounts by the 1st Defendant/Respondent. 122. The Plaintiff/Applicant also seeks that the Court issues an order compelling the 1st Defendant/Respondent to render a proper and accurate account of the loan facility of Kshs. 2,150,000/= that was advanced to the 2 nd and 3rd that the 2 nd and 3rd Defendants/Respondents. 123. The Plaintiff/Applicant contends Defendants/Respondents were given a loan facility by the 1 st -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 14 OF 2013 [KERICHO] Page 39 of 49

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Defendant/Respondent of kshs. 2, 150,000/= in the year 2001. 124. The Plaintiff/Applicant also contends that the arrears of the said loan facility now stands at Kshs. 39,547,780. 125. The Plaintiff/Applicant further contends that the 1 st Defendant/Respondent ought to render accounts as to how the said figure was arrived at. 126. It is the Plaintiff/Applicant’s contention that she has procured the services of the Interest Rates Advisory Center who have prepared a report which states that the amount recoverable is Kshs. 4,300,000/=. 127. It is also the Plaintiff/Applicant’s submissions that she was not served with the requisite statutory notices and neither was the suit property valued. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 14 OF 2013 [KERICHO] Page 40 of 49

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128. In response, the 1st Defendant/Respondent contends that the Court is functus officio as it delivered judgement on 9 th May, 2018 and it cannot therefore address the issues raised in the Plaintiff/Applicant’s application. 129. The Supreme Court in Odinga v Independent Electoral & Boundaries Commission & 3 others [2013] KESC 8 (KLR) stated as follows on the doctrine of functus officio; “18. We, therefore, have to consider the concept of “functus officio,” as understood in law. Daniel Malan Pretorius, in “The Origins of the functus officio Doctrine, with Specific Reference to its Application in Administrative Law,” (2005) 122 SALJ 832, has thus explicated this concept: “The functus doctrine is one officio of the mechanisms by means of which the law gives expression to the principle -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 14 OF 2013 [KERICHO] Page 41 of 49

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of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation same to the matter.… [principle] is The that once such a decision has been given, it is (subject to any right of appeal superior body or final and functionary) to a conclusive. Such a decision cannot be varied by revoked the or decision- maker.” 19.This principle has been aptly summarized further in Jersey Evening Post Limited v A1 Thani [2002] JLR 542 at 550: “A Court is functus when it has performed all its duties in a particular case. The doctrine does not -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 14 OF 2013 [KERICHO] Page 42 of 49

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prevent the Court correcting clerical nor it does judicial from errors prevent change of a mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the Court functus, when its judgment been or order has perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the Court cannot review or alter its decision; any challenge to its ruling on adjudication must be taken to a higher Court if available” that right is [emphasis supplied].” 130. The Court of Appeal in Telkom Kenya Limited v John Ochanda (Suing On His Own Behalf and on Behalf Of -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 14 OF 2013 [KERICHO] Page 43 of 49

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996 Former Employees of Telkom Kenya Limited) [2014] KECA 600 (KLR) held as follows; “Functus officio is an enduring principle of law that prevents the re-opening of a matter before a Court that rendered the final decision thereon.” (Emphasis mine) 131. As was held in the above cited judicial decisions, the doctrine of functus officio prevents the re-opening of a matter before a Court after it has rendered the final decision. 132. In the judgement delivered on 9 th May, 2018 the Court held as follows; “d. It is hereby ordered that unless the amount outstanding to the 1st Defendant is fully paid by the 2nd and 3rd Defendants, the 1st Defendant is at liberty to exercise its statutory power of sale in respect of the suit -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 14 OF 2013 [KERICHO] Page 44 of 49

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property in strict conformity with the law.” 133. It is trite law that once a Court has determined a suit on merit it becomes functus officio. 134. The Court issued an order that if the outstanding amount is not repaid, the 1st Defendant/Respondent was at liberty to exercise its statutory power of sale. 135. It is not disputed that the 2 nd and 3rd Defendants/Respondents have not repaid the outstanding amount. 136. It follows that the 1 st Defendant/Respondent is well within its rights to exercise its statutory power of sale. 137. It is not disputed that the 1st Defendant/Respondent has attached to its Replying Affidavit a copy of the said Statement of Accounts. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 14 OF 2013 [KERICHO] Page 45 of 49

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138. After the said statements of accounts were availed, the Plaintiff/Applicant now challenges how the figure of Kshs. 39,547,780/= was arrived at. 139. It is my view that since the Court already delivered judgement in this matter, it cannot interrogate the issue of the exact loan amount that is outstanding. 140. In any event, this Court does not have jurisdiction to do so as the issue of the amount due or owing after a property has been charged is a commercial dispute which issue can only be determined by the High Court. See the Court of Appeal judicial decision in Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 others [2017] eKLR. 141. Taking the foregoing into consideration, it is my finding that this Court is functus officio. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 14 OF 2013 [KERICHO] Page 46 of 49

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C. Whether the application dated 25th July, 2025 is res judicata. 142. Given my finding on issue (b) above, it shall not be necessary for me to address this issue. D. Whether the application dated 25th July, 2025 has merit. 143. Given my finding on issue (b) above, it shall not be necessary for me to address this issue. E. Who should bear costs of the application. 144. The general rule is that costs shall follow the event in accordance with the Provisions of Section 27 of the Civil Procedure Act (Cap. 21). A successful party should ordinarily be awarded costs of an action unless the Court, for good reason, directs otherwise. Disposition. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 14 OF 2013 [KERICHO] Page 47 of 49

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145. Taking the foregoing and my finding on prayer (b) on the face of the application into consideration, I find that the other prayers sought in the Plaintiff/Applicant’s Notice of Motion application dated 25th July, 2025 lack merit and are hereby dismissed with costs. 146. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT KERICHO THIS 16TH DAY OF APRIL, 2026. L. A. OMOLLO JUDGE. In the presence of: Mr. Nyongesa for Mr. Maondo for 1 st Defendant/Respondent. Mr. Ondabu for the Plaintiff/Applicant. Court Assistant; Mr. Joseph Makori. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. 14 OF 2013 [KERICHO] Page 48 of 49

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