High Court 6487 of 2026

1. The Plaintiffs Francis Mutunga Kimanthi and Christine Mumbua Mutunga instituted the original claim via amended plaint dated 12/03/2018. The cause of action arose from alleged fraudulent transactions in respect of accounts held in the Defendant Kenya Women Micro Finance Bank by the Plaintiffs where it is alleged that huge amounts of money have illegally, unlawfully been withdrawn, transferred and/or misappropriated by and/or through the Defendant. The Plaint 2. The Plaintiffs averred as follows; ⮚ They operated two p ersonal bank accounts with the Defendant namely; account No 1003575213 opened sometime on 10/09/ 2013 in the name of Christine Mumbua Mutunga (2 nd Plaintiff) and account No.1003575371 and 1003191963 opened on 15/10/2012 in the name of the Monica Kimanthi and Francis Mutunga 1st Plaintiff . ⮚ The 1st Plaintiff was a signatory and the sole operator of the said bank accounts. ⮚ Account no. 1003575371 was used as the loan drawdown account. Later the Defendant opened another joint Current Account of the Plaintiffs A/C No.1004523055 in the name of Miale Centre. ⮚ They opened account No.1003575213 on 10/09/2013 with Kshs. 40,000/=. On 19/09/2013 a sum of Kshs. 20,000/= was transferred by the Defendant from the said account No.1003575213 to unknown account. withdrew cash On the 31/10/2013, the Plaintiff Kshs.18,000/= from the said account. ⮚ Sometime in September 2013, the plaintiffs applied for a loan of Kshs.3,000,000/=. It was deposited in the Plaintiffs’ Account No. 1003575213 on the same date of 12/11/2013 . This was repayable by monthly installments for a period of 40 months on a reducing balance The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 2/77

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⮚ On the same 12/11/2013, the plaintiffs made a cash deposit of Kshs.380,000/= in the same account the Defendant deducted a sum of Kshs.79,180/= as charges for valuation of Plot No. Emali Township Block 1/150 Emali. ⮚ On that 12/11/2013, the plaintiffs withdrew Kshs.450,000/= from the said account, and the Defendant unlawfully and illegally transferred a sum of Kshs.400,000/= from the said account to an unknown account. ⮚ That the Defendant had informed them that there was an offer to the effect that any loan from 3 million and above was to be repaid at an interest rate of 18%, per annum and that there was no payment of the loan application fee and that the Risk management fund (RMF) was 1.25%. ⮚ That despite giving the said offer, the Defendant prepared a letter of offer for the loan with interest rate at 20% instead of 18% and deducted all the charges the Defendant had offered not to deduct. The Defendant later confirmed the rate of interest was 18 % vide their loan schedule issued on 21/09/2015. ⮚ That in advancing the loan of Kshs.3,000,000/=, the Defendant deposited in the Plaintiffs’ account the sum of Kshs.2,221,542.50/= and debited Kshs.778,457.5/= which was allegedly owed to the Defendant by the Plaintiffs before the loan was advanced. They contended that they had no earlier loan and/or overdraft facility with the Defendant and the said sum of Kshs. 778,457.5 was wrongfully, unlawfully and illegally deducted from their loan. ⮚ That as regards charges for the Risk Management Fund (RMF) and excise duty, the lawful charges were Kshs.37,500/= for RMF (being 1.25%) of the loan and Kshs.3,750/= for excise duty (being 10% of the above RMF) but the Defendant unlawfully and unjustifiably deducted The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 3/77

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Kshs.67,600/= for RMF and 6,760/= for excise duty respectively. Consequently, a sum of Kshs.33,110/= was unlawfully deducted by the defendant for those charges. ⮚ That the loan of Kshs.3,000,000/= was repayable at an interest rate of 18% instead of 20% for a period of 40 months on a reducing balance. Thus, the monthly installment was supposed to be Kshs.100,281.3/= but the Defendant deducted Kshs.103,339.08/= per month for a period of 8 months. ⮚ That on the 13/11/2013 and 14/11/2013, withdrawals of Kshs.50, 000= and Kshs.218,400/=respectively were illegally, unlawfully and wrongfully carried out in Account No.1003575213 without their knowledge, authority and/or consent and/or through the Defendant’s authority, knowledge and/or consent. ⮚ That on 03/12/2013 and 17/12/2013, the sum of Kshs.135,800/= and 140,800/= Account No.1003575213 respectively were unlawfully transferred from the Account No.1003575213 to unknown destinations. The said purported transfers were not known, authorized and/or sanctioned by the Plaintiffs. ⮚ That the Defendant created an illegal, unlawful and unauthorized Standing Order where a sum of Kshs.5,022/= was being deducted from account No.1003575213 monthly from 13/01/ 2014 up to 12/01/ 2015. A total of Kshs.65,286/= was deducted from the said account. They had no overdraft or any other loan facility and the said deductions were unlawful, unjustified and misappropriation of their money. ⮚ That the Defendant made unjustified and unlawful charges on the top up loan transaction to Kshs.6,000,000/=. Instead of applying the 1.25% RMF on the top up sum of Kshs.3,394,127.55/= (i.e. being Kshs.42.426.06/=), the Defendant applied the 1.25% RMF on the total The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 4/77

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loan of Kshs.6,000,000/= amounting to Kshs.210,006.56/=. The defendant charged 10% of 21,000.66/= on the excise duty instead of Kshs.4,242.66/= being 10% of Kshs.42,426.06/=. The defendant therefore unlawfully deducted Kshs.231,007.22/= as a charge for RMF and the excise instead of duty for the top up transaction Kshs.46,668.72/=. The defendant later reversed Kshs.83,844.68/= leaving a balance of Kshs.100,493.82/=. ⮚ On 28/07/2014, a sum of Kshs.480,000/= was illegally and unlawfully withdrawn from account No.1003575213. On the 04/08/2014 and on 08/09/2013, sums of Kshs.150,000/= and Kshs.276,360/= account to unknown respectively destinations without were transferred the Plaintiffs’ from the knowledge, consent and/or authority. All the above sums of money unlawfully and illegally withdrawn and/or transferred were never refunded to the Plaintiffs Account No.1003575213. ⮚ They used to repay their loans through loan drawdown Account No.1331601144 until 21/09/2015 when the Defendant without the knowledge and/or consent of the Plaintiffs changed the loan drawdown account to loan drawdown Account No.1528800842. They contend that they had not applied for any new loan to warrant the creation of the loan drawdown Account No.1528800842 by the Defendant. That, in creating a new loan drawdown Account No.152880842, the Defendant wrongfully and/or unlawfully indicated the outstanding loan balance as at 21/09/2015 to be Kshs.4,042,832.91/= while the actual outstanding loan balance was Kshs.3,854,660.18/=. The Defendant also changed the monthly installments and started deducting The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 5/77

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Kshs.223,481.18/= instead of the Kshs.221,053.66/= which they did for a period of seven (7) months from October 2015 to April 2016. ⮚ That, in the year 2015, the Defendant again advanced a soft loan in The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 6/77

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the sum of Kshs.500, 000/= through Account No.1003575371 1003575213 for business. The said loan was to be repaid separately through account No.1003575371 1003575213 under LD1515901497 in monthly installment of Kshs.50,0000/=. The said soft loan was paid in full by June 2016. ⮚ That, account No.1003191963/= was opened on 15/10/ 2012 and was closed by the defendant on 16/01/ 2017 and that the 1st Plaintiff obtained only four soft loans of Kshs.400,000/= on 16/10/ 2012 , Kshs.400,000/= on 17/01/2013, Kshs.500,000/= on 17/04/2013 and Kshs.500,000/= on 24/09/ 2013 through the said account. That all the stated loans were repaid in full through the said account. ⮚ That, there were savings amounting to Kshs.89,510/= which were never refunded to the Plaintiffs at the time of the closure of the said Account no. 1003191963. That, the Defendant made extra unlawful and unjustified charges on the said account and created an unlawful standing order on the said account through which the defendant unlawfully deducted funds. ⮚ The claim against Defendant in respect of Account No. 1003191963/= is for a sum of Kshs.185,347.91/= ⮚ They were repaying the loans as required in both accounts until January 2016 when they decided to consolidate both accounts by paying 500,000/= in the outstanding loan of Kshs A/c No. 1003575371 by offsetting the said balance with the savings in the said account. The balance of the savings was to be utilized together with the savings in A/c No.1003575213 to offset part of the loan in that account. A/c No. 1003575371 was to be closed after the The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 7/77

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offsetting transactions. The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 8/77

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⮚ That, at the time of consolidation, Account No 1003575371 had savings amounting to Kshs.375,145.25/= and Account No.1003575213 had savings amounting to Kshs.20,729.81/= while the outstanding loan on the loan of Kshs.500,000/= was Kshs 229,490.65. The outstanding loan was offset from the said savings on 26/01/ 2016 and Account No.1003575371 was closed. ⮚ The balance of savings was utilized to pay part of the loan installments of the loan in A/c no 1003575213 and the total loan balance after the set-off on 26/01/ 2016 was Kshs.3, 252,559.75. ⮚ That despite the loan of Kshs.500,000/= having been paid in full and Account No.1003575371 closed, the Defendant unlawfully and illegally continued to deduct money in Account No.1003575213 purportedly to repay the said loan. ⮚ That sometime in May 2016, they requested for a top up loan to make the total aggregate loan advanced at the sum of Kshs. Twenty Million (Kshs.20,000,000/=). The top up loans were advanced in two installments of Kshs Four Million (Kshs.4, 000,000/=) on 30/05/ 2016 and Kshs. Ten Million (Kshs.10, 000,000/=) advanced on 07/06/ 2016 respectively. ⮚ That on 2 0 / 0 2 /2 0 1 6 , they app l i ed for a loan of Kshs 35,000,000 /= but the Defendant offered to top up the Plaintiffs’ existing loan to make an aggregate sum of Kshs 20,000,000 /=. The plaintiffs were given a letter of offer to top up their existing loan to Kshs 20 ,00 0 ,0 0 0 / -. The aggreg ate sum top up to Kshs 20,000,000/= was to be given as one lump sum amount after deduction of the outstanding balance of the existing loan. The term for the said loan was 65 months. ⮚ The said loan top up difference was not advanced as a lump sum. The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 9/77

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The bank advanced Kshs 4,000,000/= on 30/05/ 2016 and by that date, the outstanding loan balance was Kshs 2,565,648.48. However according to the bank, the balance was Kshs, 5,762,321.50. This balance seemed to take into account the sum of Kshs 2,856,918/= which appeared in the bank statement and which was not given to the Plaintiffs as a loan but was deposited in the account without any approval or terms. ⮚ That, sometime in August 2016, the Defendant offered to advance the Plaintiffs another top up loan to make the aggregate loan to Kshs 30,000,000/=. The was never said top up to Kshs 30,000,000/= advanced. Instead, the Defendant deposited in the Plaintiffs’ account a sum of Kshs 10,327,983.78/= on the 14/10/ 2016. ⮚ That, after the sum of Kshs.10,327,983.78/= was deposited in the account, the outstanding loan balance now became Kshs.15,679,740.64/=. ⮚ That, the Defendant unlawfully, unjustifiably wrongfully deducted the sum of Kshs.1,072,500/= purported as charge for the sum of Kshs.10,327,983.78/= advanced on loan but subsequently reversed a sum of Kshs.412,500/= Kshs.517,990.24/= leaving a sum of unrefunded or reversed. The Plaintiff treated the transferred sum of Kshs.517,990.24/= as principal decrease, in respect of the above outstanding balance of Kshs.15,679,740.64/= leaving the outstanding loan balance as Kshs.15,161 ,750.4/=. ⮚ That, immediately after the sum of Kshs.10,327,983.78/= was deposited in the Account No.1003575213, the Defendant deducted or debited the sum of Kshs.800,208.18 from the account which sum was never accounted for and the Plaintiffs treated the said sum as principal decrease payment for the loan. The balance of the outstanding loan as The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 10/7 7

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from December 2016 was therefore Kshs.14,361,542.22/=. Since December 2016 up to October 2018, the Defendant deducted monthly installments amounting to Kshs.7,417,511.96/= from the Plaintiffs’ account in repayment of the loan. The loan statement account from Defendant confirmed a total sum of Kshs.7,897,146.78/=was paid. ⮚ All the stated loans were secured by Charges registered on Plot No. Emali Township Block 1/ 150 situate in Emali Township in Makueni County. ⮚ That, on 14/10/2016, 07/06/ 2016 the Defendants transferred the sum of Kshs. 10,327,983.78, 10,108,778.98 into the Plaintiffs Account No.1003575213. The said transfer was made from loan Account No. 1003575371 where a sum of Kshs 10,221,658.22 was purportedly deposited as a further top loan and registered a further charge on the same over the suit premises. The Plaintiffs contend that the said sum was not a loan but was a mere transfer of funds from the loan account to the Plaintiffs’ Account No.1003575213 and cannot be treated as a loan repayable under loan terms. 3. The particulars of fraud were stated to be; a. On or about October 2013, the plaintiffs Account No. 1003575213 was debited with a sum of Kshs.800,000/= described as a transfer, which sum was unknown to the Plaintiffs and which sum was deducted as a loan advanced to the Plaintiffs. The Plaintiffs contend that they had no loan and/or over draft facility with the Defendant prior to the loan of Kshs.3,000,000/= advanced on 12/11/ 2013. The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 11/7 7

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b. In November 2016, the Plaintiffs offset their loan of Kshs.500, 000/= in account No. 10035753371 through its savings and closed the said account but the Defendant continued to deduct monthly installments of Kshs.50,000/= from account No.1003575213 purportedly in repayment of the said loan which had already been repaid in full. A total of Kshs 250,000/ = was unlawfully and illegally deducted. The Defendant was also carrying out double repayment of the above loan from both accounts 1003575371 and 1003575213. c. The Defendant executed numerous transfers of funds from the Plaintiffs’ account which transfers were unknown, not authorized and /or consented by the Plaintiffs and some of which were false for instance; the Defendant purported to have transferred Kshs 930,000/= in October 2016 to one Peter Mathenge Waihwa which purported transfer was false. d. The Defendant has indicated in its Bank Statement that there was a cash withdrawal of Kshs 575,000/- by One Christine (2nd Plaintiff) on 02/06/2016, a fact which is false and another cash withdrawal of Kshs 185,000/ by one Ann on 15/11/2016. The said Ann is unknown to the Plaintiffs. e. The Defendant has been charging the Plaintiffs unknown charges which the Plaintiffs contend are unlawful and illegal. For instance, on 14/10/2016, the Defendant charged in the Plaintiffs’ bank statement Kshs 1,072,500/= alleged to be top up charge for the sum of Kshs.10,327,983.78/= withdrawal. The Defendant The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 12/7 7

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Kshs 412,500/ - and a balance of was not The Judiciary of Kenya however reversed Kshs.517, 990.24/= Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 13/7 7

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refunded/reversed. f. The Defendant unlawfully and without the Plaintiffs’ consent or authority transferred funds from A/c No. 1004523055 to A/c No.1003575213 of Kshs 68,000/, Kshs. 30,200/- and Kshs 15,000/= and showed the said sums of money to have been withdrawn as part of the loan funds in account 1003575213. g. Overcharge of Kshs 52,434.54 as the charges for the loan of Kshs 4,000,000/= granted on 30/05 2016. h. The Plaintiffs contend that the Defendant has refused, despite numerous requests to provide the Plaintiffs with bank statements showing the outstanding loan balances before any top up loan was advanced and the loan Defendant has repayment statement. i. The Plaintiffs contend that the misappropriated the Plaintiffs’ funds through unlawful and illegal transfers, withdrawals and charges from which the Plaintiffs have lost their money amounting to Kshs.10,847,893.37/= in account No.1003575213 Kshs.185,347.91/= in account No.1003191963. and 4. The Plaintiffs averred that they have all along been repaying the loans and the Defendant has not given an account of the repayments. That, the Defendant has wrongfully, unprocedurally and unlawfully advertised for sale, by public auction, the Plaintiffs’ suit property claiming an unjustified sum of Kshs The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 14/7 7

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32, 855,211.82 as loan balance. The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 15/7 7

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5. The 2 nd Plaintiff avers that she bought 500 shares units from the Defendant sometime in March 2015 but has never been paid any dividends and claims dividends on the said units from the year 2015. 6. The Plaintiffs pray for judgment against the Defendant for; (i) A statement of accounts in respect of the Plaintiffs Bank account No.1003575213 No.1003575371 1003191963 and from the account date the accounts were opened on 10/09/ 2013 and 15/10/ 2012 respectively. (ii) A permanent injunction against the Defendant from advertising, alienating the suit statutory power of selling, transferring, property and/or sale the on interfering, exercising its unlawful claim of outstanding loan balance. (iii) A declaration that the Defendant’s demand of the sum of Kshs.32, 855,211.82 as loan outstanding is unlawful, illegal and based on unjustified figures and calculations. The Plaintiff seeks for an order for refund of all the Plaintiffs’ misappropriated funds and for dividends on the share units from the year 2015. (iv) The sum of 11,033,241.28/= being the total amount unlawfully misappropriated in both Accounts No.1003575213 and 1003191963 through unjustified charges, unknown and an unauthorized transfers and illegal cash withdrawals. The Plaintiffs demand for the refund of the above sum and /or payment of the balance after offset any outstanding loan balance. The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 16/7 7

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(v) Any other or for further relief this honourable court deems fit to grant. (vi) Costs and interests of the suit. The Defence 7. The Defendant filed an amended statement of defence and counter claim on 12/04/2023 where it denied each and every allegation in the plaint as if they were set out verbatim and traversed seriatim. 8. The Defendant averred as follows; ⮚ That, Account No.1003575371 is a loan draw down account where the principal is kept and cannot be closed down while Account No.1003575213 is the transactional account where most of the transactions are done such as deposits, withdrawals and other banking activities. This is a normal acknowledged practice in the banking sector. ⮚ According to the defendant it extended various financial facilities to the Plaintiffs to the maximum principal of Kenya Shillings Thirty Million (Kshs. 30,000,000.00) upon, inter alia, various conditions which were accepted by the Plaintiffs. ⮚ That these were made pursuant to Letters of Off er dated 08/10/2013, 01/07/2014, 14/04/2016 and 25/08/ 2016, (together “the Letters of Offer”). ⮚ That the Plaintiffs executed the letters of offer of their own their own free will and are bound by the terms therein: To repay the facility at the stated interest rate and failure thereof, default interest: to pay Risk The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 17/7 7

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Management Fund; Commission and Facility fees; life insurance; legal charges and costs; valuer’s fees; architects and surveyors’ fees among others. ⮚ That the financial facilities were secured by the following: a) Legal Charge dated 07/11/2013 over property known as TITLE NO. EMALI TOWNSHIP BLOCK 1/150 for Kshs. 3,000,000.00 b) Further Legal Charge dated 24/07/ 2014 over property known as TITLE NO. EMALI TOWNSHIP BLOCK 1/150 for Kshs. 6,000,000.00 c) Second Further Legal Charge dated 13/05/2016 over property known as TITLE NO. EMALI TOWNSHIP BLOCK 1/150 for Kshs. 20,000,000.00 d) Third Further Legal Charge dated 10/10/2016 over property known as TITLE NO. EMALI TOWNSHIP BLOCK 1/150 for Kshs. 30,000,000.00 ⮚ That the 2nd Plaintiff further executed Deeds of Rental Assignment dated 15/05/2016 and 10/10/2016 wherein she admitted to being indebted to the Defendant of the amounts disbursed by the various Letters of Offer. By the Deed of Rental Assignment dated 10/10/ 2016, the 2nd Plaintiff admitted that that the Plaintiffs were indebted to the Defendant in the principal sum of Kshs. 30,000,000.00 and assigned the rent income received from the properties to the Defendant. ⮚ Notwithstanding the clear terms of the Special Conditions contained in the Letters of Offer dated 08/10/ 2013, 01/07/ 2014, 14/04/2016 and The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 18/7 7

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25/08/2016 and Deeds of Rental Assignment dated 15/05/2016 and 10/10/2016, the Plaintiffs breached the said terms. 9. The particulars of breach of the special conditions of the Letters of Offer and Deeds of Rental Assignment were stated to be; a) Failure to remit the rental income received from the property to the Bank. b) Failure to provide a detailed listing of all assets owned. 10. The Defendant averred that it commenced the realization process when the Plaintiffs defaulted in making monthly repayments in breach of the terms of the Letters of Offer. The particulars of the realization process were stated to be; a) A demand letter was issued on 17/07/2018. b) The 90 days statutory notices were issued on 18/12/2017, At the time, the outstanding arrears were Kshs. 1,645,058.16 which they were supposed to clear. c) The 2nd Statutory Notice to wit, the 40 Days’ Notice was issued vide a letter dated 09/04/2018 after non response to the foregoing from the Plaintiffs. At the said date, the outstanding arrears were Kshs. 2,773,717.33 which the Plaintiffs were to clear to avert the Bank selling the charged property. d) There being no response the Defendant instructed Crater View Auctioneers to issue the 45 Days Redemption Notice and recover the entire outstanding amount which was Kshs. 32,855,211.82 as at 17/09/2018. The Plaintiffs were informed that the said outstanding amount attracted interest at the rate of 18% p.a. e) The Judiciary of Kenya The Redemption Notice was served upon the Plaintiffs by Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 19/7 7

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the The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 20/7 7

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Auctioneers on 27/09/ 2018. f) Prior to the issuance of the notice, the Defendant had instructed Orion Valuers to undertake a valuation of the charged property. The Valuer submitted its report dated 18/09/ 2018 which indicated that the market value of the property was Kshs. 95,000,000.00 and forced sale value would be Kshs.75,000,000.00. g) There was no response to the Redemption Notice. The defendant instructed the Auctioneer to proceed and advertise the property for sale as per the provisions of the Auctioneer’s Act. The advertisement was carried in the Daily Nation Newspaper on 12/11/2018. 11. That it was upon the advertisement of the property, that the Plaintiffs filed this instant suit and application alleging that some amounts were debited in their account illegally and unlawfully when any debit was pursuant to the provisions of the Letters of Offer. Further, the Plaintiffs alleged illegal withdrawal when said withdrawals were supported by withdrawal instructions. 12. The Defendant averred that the Plaintiffs were granted injunctive orders stopping the sale of the charged property but the said orders did not bar the Plaintiffs from making monthly instalement. That, the Plaintiffs have without any colour or right failed and defaulted in payment of the installments and have fallen into arrears. That, the last payment was on 02/02/2023 of Kshs.4,980 and the oustanding balance as at 31/03/2023 was Kshs.56,934,752.14 and continues to attract interest. 13. With regard to the top-up amounts, the Defendant averred as follows; a) A top-up of Kshs.3,394,127.55 was credited into the The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 21/7 7

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Plaintiffs’ account on 25/07/2014 bringing the principal loan balance to Kshs. 5,939,497.18. The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 22/7 7

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b) A top-up of Kshs. 2,856,918.00 was credited into the Plaintiffs’ account on 22/04/2016 bringing the principal loan balance to Kshs.5,778,341.78. c) A top-up of Kshs. 4,000,000.00 was credited into the Plaintiffs’ account on 30/05/2016 bringing the principal loan balance to Kshs.9,868,632.32. d) A top up of Kshs.10,221,658.22 was taken on 06/06/2016, bringing the principal loan balance to Kshs.19,983,179.72. e) The fi nal top up of K s h s . 1 0 ,3 2 7 ,9 8 3 .7 6 was taken on 14/10/2016 bringing the principal loan balance to Kshs.29,999,200.00 14. Further, the Defendant averred that; ⮚ At no time did the Plaintiffs complain about the running of the accounts or any fraudulent activity on their accounts. That they were turning the court into an Accountant without even seeking for an order of accounts to be undertaken. ⮚ The amount stated in paragraph 3A of the Amended Plaint was valuation fees deposit for the property provided as security. This was in line with Clause 14(i) highlighted in the Letter of Offer dated 08/10/ 2013. ⮚ Kshs 400,000/= mentioned in paragraph 3C of the Amended Plaint was an authorised transfer to his nephew. ⮚ In answer to paragraph 4, the Defendant denied the allegation that its interest rate was 18% and maintained that it was 20% and put the Plaintiffs to strict proof. That, the said interest of 20% was contractually agreed by parties as per the Clause 5.1 of the Letter of Offer dated 08/10/ 2013. ⮚ In answer to paragraph 4A, the defendant denied that it wrongfully, The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 23/7 7

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unlawfully and illegally deducted Ksh.778,457.5 from the account and further averred that the only deductions were a loan charge of Ksh. 6,760.00 and excise duty of 6,760,000.00. That these amounts were contractually agreed by parties as per the terms of the Letter of Offer dated 8th October 2013. ⮚ In answer to paragraph 4B, the defendant denied that the Risk Management Fund and excise duty were Ksh.37,500 and Kshs. 3,750 respectively and further averred that there was no waiver on the mentioned charges. The charges remained Kshs.67,600 which were Risk Management Fund, Liquidity Adjustment Facility and processing fees and excise duty of Kshs. 6,760. These amounts were contractually agreed by parties as per the terms of the Letter of Offer dated 08/10/ 2013. ⮚ In answer to paragraph 4C, the defendant denied that the interest was 18% and averred that the Bank’s interest was 20% reducing to be paid in a period of 40 months. The Defendant reiterated that the interest of 20% was contractually agreed by parties as per the Clause 5.1 of the Letter of Offer dated 08/10/2013. ⮚ In answer to paragraph 4D, the defendant denied that it illegally, unlawfully and wrongfully withdrew Kshs. 50,000.00 and Kshs. 218,400.00 and averred that the Plaintiff withdrew the amounts. That the Defendant could not be blamed for poor book keeping by the Plaintiffs. ⮚ The Defendant denied that it transferred Kshs. 135,800.00 and Kshs. 140,800.00 unlawfully and averred that the Plaintiffs paid their suppliers via RTGS. ⮚ The Defendant denied the contents of paragraph 4E and averred that the 1st Plaintiff authorised the Kshs.5,022.00 and funds were transferred to his Loan Guarantee Deposit account. The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 24/7 7

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⮚ In response to paragraph 5, the Defendant denied that the Plaintiff lost a sum of Kshs. 97,836.53 and averred that the Plaintiffs received an amount less by 60,502.82 which was as a result of the top up amount being late and the principal already charged of Kshs.60,502.82. ⮚ In response to paragraph 5A, the Defendant denied that the Bank was to apply 1.25% of the top up amount only and averred that the charges were to be calculated from the loan of Kshs.6,000,000 because the top up amount did not change, what changed was the outstanding balance. ⮚ The Defendant denied paragraph 5B and in particular the allegation that it illegally transferred sums of money from the Plaintiffs’ account and that it was the plaintiffs who withdrew/transferred the amounts. ⮚ The Defendant denied paragraph 5C and in particular the allegation that the Bank changed the loan drawdown account, that the drawdown accounts mentioned were non-existent as there was a system migration in August, 2015. ⮚ The Defendant denied paragraph 6A and in particular the allegation that the Plaintiffs cleared the loan advanced to account Number 1003191963. ⮚ The Defendant denied paragraph 6B and in particular the allegation that the Defendant made extra unlawful and unjustified charges on Account No. 1003191963. The Defendant averred that the Plaintiffs did not clear the last loan in full therefore the balance was cleared using the loan guarantee deposit the Plaintiff had of Kshs. 89,510.00 ⮚ The Defendant admitted Paragraph 8 and in particular the allegation that the Defendant did not advance the loan of Kshs.30,000,000. The Defendant averred that the balance before the The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 25/7 7

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top up was Kshs.19,672,016.22, therefore the top amount was Kshs.10,327,983.78 to make an aggregate of Kshs. 30,000,000. ⮚ The Defendant denied the particulars of fraud and averred that they are untrue and unfounded as exhibited from the bank statement of the Plaintiffs. It averred that there is a record of Real Time Funds Transfer from the Defendant’s bankers, Kenya Commercial Bank to Co-operative Bank of Kenya Ltd Account No.01148283787800 of a transfer that was authorised by the Defendant on behalf of Plaintiffs for payment of material supplied to Tejo Steel Hardware amounting to Ksh.930,000/= on 17/10/ 2016. ⮚ The Defendant denied paragraph 12 and averred that they had provided the bank statements to the Plaintiffs on several occasions. ⮚ The Defendant denied paragraph 13 and averred that a court cannot be made to be an accountant without a specific prayer for taking accounts. ⮚ In response to the particulars of loss in account 1003191963, the Defendant averred that the Plaintiff s’ claim were untrue and unfounded. That the plaintiffs were guilty of material nondisclosure as no such transactions were done in respect to the account as exhibited from the bank statements of the Plaintiffs. ⮚ The Defendant denied paragraph 14 and averred that the Plaintiffs were not making payments towards the loan hence forcing the Defendant to serve then with statutory notices and only then did the Plaintiffs start making payments. The Defendant denied paragraph 15 and averred that the Plaintiffs had not repaid the loan and that they owed the Bank Kshs.56,934,752.14 as at The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 26/7 7

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31/03/ 2023 which amount the Bank has demanded in the Counterclaim. The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 27/7 7

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The Counter Claim 15. The Bank averred that the Defendants were granted injunctive orders stopping the sale of the charged property but the said orders had not barred them from making monthly instalments. 16. The Bank averred that the Defendants had without any colour or right failed and defaulted in payment of the installments and had fallen into arrears. That the last payment by the Defendants was on 02/02/2023 of Kshs.4,980.00 and the current oustanding balance is Kshs.56,934,752.14 as at 31/03/2023 and continues to attract interest. 17. The Bank prayed for; a) Judgment against the 1st and 2nd Defendants in the Counterclaim for the sum of Kshs.56,934,752.14 as at 31st March 2023 together with interest at commercial rates accruing thereon until payment in full. b) Dismissal of the original claim c) Costs of the suit on a full indemnity basis. Rejoinder 18. In response to paragraph 5 of the amended defence,the Plaintiffs averred that, Account No.1003575371 was a loan drawdown account where all the principals were but that there were other subsidiary loan drawndown accounts The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 28/7 7

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such as account No.1331601144. No.1003575213 was the Plaintiffs current transactional account where the principal That, Account account and the was deposited and from where all monies were drawn. 19. The Plaintiffs denied the claims in the amended defence and counter claim and put the Defendant to strict proof. They averred that the legal charge in paragraph 8 (d) was fradulently and irregularly registered after this suit was filed to justify the Defendant’s amended defence and counter-claim and is legally invalid for want of the registrar’s signature. 20. The 2nd plaintiff totally denied signing and/or executing the alleged Deed of rental assignment and put the Defendnat into strict proof thereof. Further, the 2 nd Plaintiff denied admitting any indebtness of Kshs30,000,000/= and/or any other amount of money to the Defendant. 21. The Plaintiffs denied defaulting in payment of any monthly instalments and averred that they repaid the loans advanced to them. They averred that the Defendnat failed to provide them with the loan repayment statements showing any outstanding loan balances (if any). 22. The payment Plaintiffs of specifically averred that the purported Kshs.4,980/= on 02/02/2023 was not a loan repayment but a deposit of Kshs 5000/= made into the plaintiffs current account No. 1003575213 by the Plaintiffs from which the Defendant took the above sum of Kshs 4,980 /= and alleged the said amount was a loan repayment. The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 29/7 7

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23. The Judiciary of Kenya The Plaintiffs alleged denied the particulars of the Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 Defendants 30/7 7

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outstanding amounts contained in paragraph 12 of the amended defence and put the Defendant into strict proof thereof. 24. The 2nd Plaintiff averred that he personally made numerous complaints to the Defendant about the Plaintiifs’ accounts and personally visited the Defendant’s business premises at Emali Township. That pursuant to the complaints some reversals on his account were made but the Defendant failed to reconcile the loan repayments. 25. The Plaintiffs denied authorising and /or consenting to any transfer of money to the alleged nephew. 26. The Plaintiff s denied owing the Defendant the alleged sum of Kshs.56,934,752.14 at 31/03/2023 or any other sum of money thereof and put the Defendant into strict proof thereof. Defence to Counter-Claim 27. The Plaintiffs denied the contents of the counter-claim, averred that the orders of injunction issued by the court were premised on the prima facie avernment and proof that the Plaintiffs had repaid the loans advanced to them by the Defendant. They averred that they could not continue paying for non- existent loan balances that had no proof existed. 28. The Plaintiffs denied that they defaulted in payment of the loans advanced and/or had any loan arrears and put the Defendant into strict proof therof. 29. The plaintiffs averred that the sum of Kshs.4,980/= made on 02/02/ The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 31/7 7

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2023 was a cash deposit of Kshs 5,000/= deposited into the Plaintiffs’ current account No. 1003575213 from which the Defendant took the above sum. That, the said sum was not a repayment of any loan balance. 30. After the preliminaries, the suit proceeded for hearing whereby the Plaintiffs called two witnesses and the Defendant called one witness. The Plaintiffs’ case 31. PW1 was Francis Mutunga Kimanthi. He testified that he is a businessman in Emali and the name of his business was Miale Centre which is a complex with different businesses. His wife is Christine Mumbua Mutunga. He said that his case was as per the amended plaint of 12/03/2020 and he adopted his amended witness statement dated 12/03/2020 and supplementary statement dated 31/07/2023 as his evidence-in-chief. He produced the documents in the amended list of documents dated 30/07/2020 as P. Exhibits 1 – 21 and the documents in the further list of documents as Exhibits 22 - 28. His evidence- in- chief was basically a reproduction of his pleadings as set out herein above 32. On cross- examination, he said that he first applied for a loan of Ksh 35 million. That, the account with Monica Kimanthi was also part of this case. He did not have any offer letter for him and Monica Kimanthi. He had written a letter to the bank but the bank refused to stamp it. The letter was not before court. 33. He testified that he was the one who ran the account 213 referred to in letter of offer of 08/10/2013 addressed to Christine Mumbua Mutunga. That there were 2 accounts. For the transactional account, one could request for money to be deposited therein and could also withdraw from that account. 34. He said that a Drawdown Account is opened by the bank after The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 32/7 7

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request for a loan and loans pass through the drawdown account to go to the transactional The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 33/7 7

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account. It is not unlawful for the bankto open draw down account. Every loan has terms and conditions. 35. On being referred to letter of offer of 08/10/2013, he said that they requested for Kshs. 3,000,000 with a rate of interest of 20% and risk management fund equivalent to 1.25%. On being referred to clause 12 (Right to consolidation), he said that the documents were brought in a hurry and they did not have time to go through them. He was referred to clause 13 and asked to read but he did not read. Instead, he referred the court to clause 8 page 15 on Risk Management Funds and said it is what they were advised would be the payment. He said that he was not aware because the person who brought the forms was in a hurry. 36. He said that he did not open an account as per clause 14 and that by signing the letter of offer, he did not agree to be bound by the terms and conditions. He agreed that he gave a lease as security for 3 million. He agreed that he signed the offer letter dated 01/07/2014 and that he accepted to be bound by the terms when he signed it. That, in case of a discrepancy between letter of offer and security, the security prevails. That, they did not get time to read the documents. He said that there was no advocate to explain to him as shown in page 26 and that the documents were taken to his place of work. He agreed that he had not complained before court about lack of an advocate. He agreed that the interest in the offer letter is 20% and risk management fund is 1.25%. On being told that clause 13 provided for commission and facility fees, he said that they did not agree to that. He said that he did not give proceeds through the bank. 37. He agreed that the security of the offer letter was 1st legal charge of The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 34/7 7

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Kshs. 3 million. That, they did not give any security for a loan for 6 million. That, the 2nd loan was for Kshs. 3million. When referred to the opening words and page 20, he said that when he was given the paper, they were to give him 6 million and not 3 million. He denied the signature appearing at page 80 and said that it was different from the one appearing at page 78. He agreed that he was not a handwriting expert and that he had no report to show that it was not his signature. On being asked again, he acknowledged the signature on page 80. 38. He agreed that clause 3 of the deed of variation and further charge stated that the aggregate charge debt was 6 million. He acknowledged the signature on page 35 of the letter of offer dated14/04/2016 and agreed that he executed the letter and agreed to be bound by the terms of the letter. He acknowledged that the security for the letter of offer was LR Emali Block 1/150 and that interest was applicable as per clause 5.1. That, the default rate at clause 5.3 was 2%. He disagreed on the conclusiveness of bank statements as per clause 5.5. he disagreed with clause 13 on commissions and facility fees. He objected to clause 14(b) and said that he had never been to Kisii to sign the letters. He said that he complained severally to the bank but did not write a letter. 39. He acknowledged the signature on page 110 but denied having received Kshs 14 million. He acknowledged the signature on page 44 and said that he was not applying for fresh loan but they had been told that the document was for approval of Kshs 20 million loan. When referred to clause 2.1 at page 37 on security, he said that he did not give a further charge for the alleged loan. When referred to page 25 of Defendant’s supplementary list of documents, he acknowledged the signature at the bottom. When referred to paragraph 3 of the affidavit appearing on page 25, he said that when the paper was brought, they The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 35/7 7

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were told that it would be the first loan to be given. He disagreed that an aggregate of Kshs 30 million was charged. 40. When referred to page 34 of the supplementary list, he denied having signed the deed of rental assignment and said it was not his handwriting. When asked whether he had availed a handwriting expert report to show that it was not his signature, he did not answer. When asked whether he complained to the bank about unlawful and illegal transfers in his account, he said that he went to the branch but they kept telling him to go to the head office in Nairobi. When asked whether he had a document, he didn’t answer. 41. When asked whether he had evidence to show that the interest rate was 18%, he said that the same was indicated in the LD schedule of the bank. When asked whether it had a letter head of KWFT, he said it has the bank stamp. When asked whether it had a signature, he said that it came from the bank and he didn’t know whether it should have a letter head or signature. He said that he came to court when the bank tried to sell his property. That, he did not get any notice for the sale. When referred to page 112 of defendant’s list of documents, he said that he did not get the 1st statutory notice. When referred to page 75 of the supplementary list and asked whether there were 4 charges, he said that they were 3 but the court noted that they were 4. 42. He agreed that he was a signatory of the account and that he would withdraw/authorize transfers. That, there were business transfers and withdrawals through the bank. He said that he had evidence of transfers and did not do any transfers via Mpesa. That, they were not allowed to have cheque books so, he would personally sign for the transfer. He referred the court to pages 41-49 of Defendant’s supplementary list. The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 36/7 7

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43. When referred to page 43 of the Defendant’s list of documents, he said that he never sat down with any advocate to discuss or agree on any fees. That, they signed the documents at her place of work and there was no advocate. They agreed to pay account management fund. 44. When asked about his last deposit to the account, he said kshs 2,200/= on 30/10/2018 and then said that he couldn’t recall but averred that he was still depositing money into the account. He was referred to pages 50-64 of the Defendant’s supplementary list and asked whether he acknowledged being given the statement of account. He said that the one referred to was not a statement. That, it was a loan statement and not a statement of account. That, he expected the one on page 5 of his amended list of documents. That, the one referred to by the bank was a manipulated account. When asked whether he had reported to police, he did not answer. When asked why he had no prayer about the legal charges registered, he didn’t answer. 45. PW2 was Monica Kimanthi. She testified that Francis Mutunga Kimanthi is her brother and Christine Mumbua Mutunga is the wife of her brother. She adopted her witness statement dated 12/03/2020 as her evidence - in -chief wherein she stated that she held a joint account no 1003191963 opened on 15/10/2012, which the 1st Plaintiff operated solely. They opened the account sometime. The 1st Plaintiff is a businessman and he carried out all the financial transactions in the account including application for loans and repayment of the same. The 1st Plaintiff had her full authority to operate the account. She was aware that the 1st Plaintiff obtained loans through the accounts and repaid all of them. The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 37/7 7

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46. The Defendant closed the joint account sometime on 16/01/2017 and it had savings of kshs 89,510/= which was never refunded to them. That the Defendant also, unlawfully, deducted charges amounting to Kshs 185,347.91/=. 47. On cross-examination, she agreed that she had no letter of authority to her brother for operation of the account and when asked to confirm that she is not a party in the case, she said that she had authorised Francis to sue but had not sued in her own name. She confirmed that the account mentioned is not a joint account of the Plaintiffs. She agreed that there was no security for the account. When asked whether she had given security of land, she said that they gave the house of Francis. 48. When asked the security given for the account she had with Francis, she said that it is Francis who knows what he gave as it was him who gave his own things. She said that they took loan four times using the account jointly owned with Francis. When asked whether they gave security of land for every loan, she replied in the affirmative and said that it is Francis who knows the particulars of the security. 49. When asked whether she had produced evidence of agreement with the bank for the 4 loans, the Plaintiffs’ advocate said that the subject loans have nothing to do with the account. PW2 responded that Francis used to keep the documents and her work was just to sign. When asked whether she had gone to the bank to claim the savings, she said that Francis had the letter. When asked for evidence to show that the account was closed in 2017, she said that she went to a clerk in 2017 and found that their savings had been used to pay a loan and was not told which loan was paid. When asked whether the bank told her through mouth or letter, she said The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 38/7 7

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that it is Francis who knew. That, Francis was The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 39/7 7

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the operator of the loan account and her duty was to know that he had paid the loan. That they paid the loans and completed and had savings of kshs 89,510/=. She said that she never authorised the bank to pay itself from her account. 50. PW3 was Christine Mumbua Mutunga. She adopted her statement dated 12/03/2020 as her evidence-in-chief. She stated that the 1st Plaintiff is her husband and they are joint owners of Plot No. Emali Block 1/150 (premises). That, they carry out business in the said premises within Emali Township. She is the account holder of account No. 1003575213 opened with the Defendant sometime on 10/09/2013. She is a signatory of the account and the 1st Plaintiff has been operating it solely with her full authority. 51. That, the 1st Plaintiff is the manager of their business enterprise, running the business transaction, construction of their premises and all the financial transactions with her full authority. That she never withdrew Kshs 575,000/= from the account on 02/06/2016 or any other amount or any other date. 52. On cross-examination, she said that she had complained about shares at paragraph 16 of the amended plaint and prayer No. 3. When referred to the letter of offer for Kshs 3 million, she acknowledged her signature on page 58 and 59. She agreed that the aggregate amount in the letter of offer dated 01/07/2014 is Kshs 6 million and acknowledged her signature therein. She agreed that the aggregate amount in the Letter of Offer dated 14/04/2016 is Kshs 20 million and acknowledged her signature therein. She agreed that the aggregate amount in the Letter of Offer dated The Judiciary of Kenya 28/08/2016 is Kshs 30 million and acknowledged her Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 40/7 7

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signature therein. 53. When referred to the papers by the bank dated 17/03/2021 at page 45, she The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 41/7 7

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said that the security given for the loan was Emali Township Block 1/150. She denied the signature at pages 82 and 80 and agreed that she had not complained about it. She agreed that she had no handwriting expert report. she acknowledged the signature on the 2nd further charge and at page 110. 54. She acknowledged the signature on the 3 rd further charge for Kshs 30 million. She said that she complained to the bank about the illegal withdrawals from the account. That, the complaint was in the office and she didn’t have the documents with her. She acknowledged that the bank gave her the statement of account appearing at pages 31 -51 of her list of documents. When told that her complaint about bank statements is not correct, she said that they are mixed up. 55. She was referred to page 50-58 of Defendants supplementary list dated 12/04/2023 and told to compare with page 31 of her documents and she agreed that they showed the same amount of Kshs 3,394,127/55. Page 34 entry 02/04/2026 shows 2,850,918 and page 51 entry 22/04/2016 the figure is the same. Page 51, entry 30/05/2016, the principal increase is Kshs 4 million. 56. She said that she did not see a problem until she realized that she was paying the loan and it was not reducing and she ended up closing her business. That, she did not need an expert as she was the owner of the business and would know when it was not doing well. That, she is an expert in business. That, she did not report to the DCI/Central Bank as she knew that they could solve the issue. 57. When asked about the last time that she made a payment to the bank, she didn’t know and said that it is her husband who can answer. When asked The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 42/7 7

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whether she was aware that the bank could sell her property if there is a default, she said that the bank cannot sell when they have not established her inability to pay. 58. The Plaintiffs’ case was closed at that juncture. The Defendant’s case 59. DW1 was Samuel Kibe Kingu, the General Manager, Credit risk, KWFT. He adopted his witness statement dated 26/4/2023 as his evidence-in-chief and produced the documents in the list dated 17/3/2021 as D. Ex 1-16. He produced the documents in the 2nd bundle dated 12/04/2023 as D.Ex 17-28. 60. He clarified that a transactional account captures banking on daily basis and the loan is in the transactional account. The loan account is the control account where amounts get in and get out and it never has running balances. He said that all customer withdrawals are done when signatory gives an approval mandate. The person who is mandated goes to the bank, is identified, verified before the transaction goes through. That, there was no complaint from the Plaintiffs that the account had been tampered with. 61. On the counter-claim, he said that the loan was advanced but the plaintiffs stopped servicing. That they last paid on 13/01/2024 and their deposits are admissions of loan balance. 62. On cross-examination, he said that he was based in the head office-Nairobi The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 43/7 7

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but had worked at Emali Branch from 2013 to 2015. That funds were credited to the Plaintiffs’ transactional account No. 1003575213. Loan drawdown account is the same as the loan account. It is the internal account for loan repayment transaction. When asked whether they charge the loan account without informing the customer, he said that in extreme cases they do it because it is an internal account. 63. He said that all entries on payment of loan are from the transactional account. That, entries in loan account will be seen in the transactional account. That, interest on loan starts accruing when the loan is disbursed and not from the date of offer letter. That, the repayment is in respect of amount given and disbursed. That, the first loan offered was 3 million and the amount of 3 million was disbursed into the transactional account. When referred to P.Ex 2 entry No. 15, he said that there was a credit of 3 million and balance of Kshs 2,221,542/50. 64. He agreed that the amount of 778.457/50 is the difference from 3m. When asked why the amount was deducted by the bank, he made reference to the entry above the Kshs 3M and said; “i) Valuation amount Kshs. 79,180 of the property offered as security, ii) Kshs. 300,000 went towards loan guarantee deposits - requirement to deposit 10% of the loan amount for guarantee of the loan, iii) Kshs. 400,000 went towards - I understand that it could be legal fees in charging the property. I did not have the details - the legal fees for charging the property – legal fees can be paid up front/deducted – my assumption is that it was for security perfection – hence the total of Kshs. 778,000. We recover this before the loan hits the account.” 65. When asked whether he was aware that the customer paid Kshs. 79,180 up front, The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 44/7 7

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he said that he had no proof that the amount was paid upfront. He said that Kshs 300,000/= was 10% of the loan which the customer pays as loan guarantee deposit but he agreed that it is not contained in the letter of offer. He agreed that he didn’t know why kshs 400,000/= was deducted and agreed that it was an assumption. He disagreed that Kshs 778,000/= was unlawfully deducted but confirmed that the client did not receive it. He confirmed that the bank was deducting a loan of Kshs 3 million including the interest. 66. With regard to the top-up loan to Kshs 6 million, he confirmed that Kshs 3,394,127/55 was credited to the customer on 25/07/2014. He confirmed that the customer was paying the loan of 3 million before the top-up. When referred to P. Ex 15 and asked whether the loan statement had details of how the loan was being repaid, he said that the statement shows how the loan was being repaid from 2015 September. He said that he had it in D. Ex 22. 67. He said that in 2015, there was a system upgrade hence the change from LD 1331601144 to LD1528800842 and they were required to move the loan balance as is. That, the system upgrade gave a new LD number. He agreed that they did not inform the customer about the change. He disagreed that from D. Ex 22, one cannot tell what was outstanding before and it only shows a figure created by the system. He agreed that there were new terms every time there was a new loan in form of a top-up and they included monthly repayments and the period. He agreed that monthly repayments were for principal and interest. When asked whether those things were in the statement, he said each monthly repayment shows principal interest. 68. When asked whether the statement shows monthly repayment as per the letter of offer, he said that the principal and interest shows the total monthly repayment. He was shown page 50, entry 17 of the supplementary The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 45/7 7

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list and he agreed that the balance The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 46/7 7

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was kshs 2,545,369/63. He agreed that it was the same amount on page 60 of the amended list of documents. He confirmed that the amount of top-up given was kshs 3,394,127/55 and the disbursement was done on 25/07/2014. He agreed that the same figure is on page 13, item 15 of the Plaintiffs’ list of documents. He agreed that the addition of 2,545,369/63 and 3,339,127/55 does not add up to 6m. He agreed that kshs 6m was not disbursed. 69. He was referred to page 60 of the Plaintiff’s amended list of documents and he confirmed that Kshs. 103,339.60 was paid to the bank on 12/07/2014. He confirmed that the Plaintiffs made an application for 35 million on 20/02/2016 but it was not given. He confirmed that kshs 20 million was an offer by the bank to make an aggregate of 20 million. When asked whether there was an application for top-up to 20 million, he said that the initial application for 35 million was varied from 35 m to 20m because the Plaintiffs did not qualify. He agreed that there is no such communication in the court record. 70. When asked about the date the offer was approved, he said that he would have to check internally and find out the person who wrote the date. He confirmed that the letter of offer does not bear the outstanding amount or the amount that was to be disbursed/given. 71. He said that the offer for top-up to kshs 30 million was made on 26/08/2016 and agreed that it was within 3 months after the offer to topup to kshs 20 million. He confirmed that each of the offers had different terms and specifically on the monthly installments payable. He confirmed that the monthly installments comprised of principal and interest and there was also the term from the loan. He agreed that when the offer to make aggregate of 30 million was made, the outstanding balance was not indicated and the amount to be disbursed to the borrower was not indicated. The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 47/7 7

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72. With regard to the offer for 20 million, he confirmed that 4 million was disbursed on 30/05/2016. He also confirmed that with regard to the offer of 30 million, kshs 10,327,983.78 was disbursed to the plaintiff on 14/10/2016. He did not agree that those were the only disbursements after the two offers. He said that on 07/06/2016, a sum of kshs 10,108,779.98, which appears as transfer, was disbursed. He said that it was a transfer from the loan draw down account to the customer’s transactional account. He confirmed that the purpose of a loan drawdown account is that it has entries relating to loan repayments internal control account that captures loan repayments. He confirmed that loan draw down account funds are drawn from the transactional account. He also confirmed that loan funds given to a customer is deposited to the transactional account. He agreed that there is no way it can be vice versa. He agreed that funds in the loan draw down account and transactional account belong to the same person. 73. He said that the document at page 81 is a schedule for loan repayment which captures both disbursements and repayments. The schedule is from 21/09/2015 to 14/10/2016. He confirmed that the Plaintiffs loan was yet to reach maturity and that the interest rate was 18%. 74. He was referred to the notification of sale from Crater View Auctioneers appearing at page 240 of the Plaintiffs amended list of documents. He confirmed that the auctioneers were acting on the banks instructions and the instructing letter is dated 17/09/2018. He confirmed that from the 2nd last paragraph of the letter, the amount being claimed as at 17/09/2018 was kshs 32,855,211.82 and the rate of interest cited by auctioneer was 18%. 75. He was referred to the schedule of property on page 241 and said The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 48/7 7

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that the The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 49/7 7

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purported date of service was 27/09/2018. He was referred to the signature purported to be that of the 1st Plaintiff and when asked whether it looked like that of the Plaintiff, he said that he could not confirm. He was referred to page 103/104 and he said that he could not confirm similarity or otherwise. 76. He was referred to the encumbrances at page 241 and he confirmed that the number of charges indicated by the auctioneers were three i.e 07/11/2013-kshs 3M, 24/07/2014 – kshs 3M, 19/05/2010 -kshs 14M. He confirmed that the charges were the same as those appearing on page 69 of Defendant’s supplementary list. When asked to confirm that there was no charge of kshs 10 million, he said that it was there. He said that the last charge was not captured in the auctioneers document and that it appears on page 1 & 40 of Defendant’s supplementary list filed on 12/04/2023.He was referred to page 423 of the Plaintiffs’ bundle and when asked whether he could see any signature to confirm that such a charge existed, he confirmed that the document does not have a signature. 77. He said that paragraph 4 of his witness statement confirms the letters of offer and loans to be disbursed to the Plaintiff. He confirmed that account No. 1003191963 – of Monica Kimanthi – existed. He confirmed that a sum of kshs 89,510/= was taken by the bank to clear an alleged loan but said that the matter is not related to this one. He agreed that he had not stated the loan that was being cleared. 78. He confirmed that the bank never took possession of the rental income and agreed that he was not present when the quoted deeds of assignment were signed. He was aware that the Plaintiffs denied signing them. 79. With regard to the loan of kshs 3M, he confirmed that the Plaintiffs raised issue with the amount deducted by the bank. He confirmed that The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 50/7 7

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there was a cash deposit of The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 51/7 7

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Kshs 380,000/= (pg 6 of Plaintiff’s amended list of documents). He was referred to pg 60 of Defendants supplementary list of documents; item dated 12/11/2013 showing a cash deposit of Kshs. 380,000 and he agreed that the document showed cash transactions way before the loan. He confirmed that kshs 300,000 and kshs 79,180 were taken before loan was advanced. He confirmed that kshs. 400,000, at paragraph 16 of his witness statement, was fund transfer. He said that the transfer was authorized by the Plaintiff to his nephew. He agreed that he had not told the court who the nephew was. He was told that the funds transfer forms exhibited by the bank (pg 41-49) did not show the transfer of kshs 400,000/=. He confirmed that kshs 79,180 for valuation fees was paid from the cash deposit. 80. With regard to the counter-claim, he said that the banks claim is kshs 56,934,752.14 and the breakdown for the figure is given. When asked whether he had addressed the particulars separately to show how the figures were arrived at, he said that the amount would appear in loan statements attached to defence documents. He agreed that the breakdown was not attached and only the balance was given. He confirmed that the particulars given emanate from the claim of 30 million. He agreed that when top-ups were given, the outstanding balances of previous loans ought to have been shown. He said that the balances were in the loan statements. He said that the bank had an issue with the Plaintiffs claims and particulars hence the reason for filing the counter-claim. 81. He said that the interest rate was 18% and the loan given was 30 million. He changed and said the loan given was 20 million. He denied that the Bank had misappropriated the Plaintiffs’ money. 82. Directions were given on the filing of submissions and the parties complied. The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 52/7 7

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Submissions by the Plaintiffs 83. The Plaintiffs filed their submissions through the firm of Muia V.M & Co. Advocates and they identified the issues for determination to be; a) Whether the Defendant was in breach of contract by disbursing less loan amount than offered in the letters of offer. b) Whether the Defendant was entitled to exercise its statutory power of sale on purported loan arrears or loan balance that were not advanced and/or disbursed and whether the said power of sale was being exercised procedurally and lawfully. c) Whether the Plaintiffs had proved their claim against the defendants and whether they are entitled to the Orders sought in the amended plaint. d) Whether the Defendant /Plaintiff in the Counter-Claim had proved its Counter-Claim. 84. As to whether the Defendant was in breach of contract by disbursing less loan amount than offered in the letters of offer, it was submitted that the Defendant was in breach of contract. That, in all the loans offered, the Plaintiffs had demonstrated in evidence that the amounts disbursed or advanced in their loan transactional account no. 1003575213 was always less than the amount offered in the letters of offer and/or the full loan offered. That, despite the Defendant advancing less amount of money than the loan offered and/or deducting unlawful and unjustified The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 53/7 7

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money from the loan given, the Defendant proceeded to recover the full amounts of loan in the letters of offer and further proceeded to charge interest on the full amounts in the letters of offer while the loans had not been advanced/or disbursed in full. It was contended that this was fraudulent, unlawful and a breach of contract. Reliance was placed on Margaret Njiru Muiruri -vs- Bank of Baroda (Kenya) Limited (2014) eKLR where the Court of Appeal quoting Justice Mwera J stated; “If it appears to a court that one Party varied the terms of a contract with another without the knowledge, consent or otherwise of the other, and that other demonstrates that the contract did not permit such variation, this Court will say no to the enforcement of such a contract. So that, contracts that have unconscionable elements will attract interference by the courts.” “Unconscionable dealing looks to the conduct of the stronger party in attempting to enforce or retain the benefit of a dealing with a person under a special disability under the circumstances where it is not consistent with equality or good conscience that he should do so.” 85. It was submitted that the Defendant varied the terms of the contract without the knowledge or consent of the Plaintiffs and that the Plaintiffs have demonstrated such variation. That, despite the Defendant’s conduct, it also attempted to enforce the contract for its benefit. That, the Defendant never disclosed any statement of account demonstrating amounts the Plaintiffs had repaid before top ups and the workings of the balances including the interests charged. 86. It was submitted that in view of the Defendant’s conduct, the contract between the parties has such unconscionable elements that attracts this court’s interference. The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 54/7 7

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87. As to whether the Defendant was entitled to exercise its statutory power of sale for loan arrears on loans that were not advanced and/or disbursed and whether the said power was being exercised lawfully and procedurally, it was submitted that the Defendant had/has no basis to exercise its statutory power of sale for the following reasons; a) The Defendant has not established how the sum claimed in its demand notice was arrived at. The Plaintiffs were not given the full amounts of loans in the letters of offer. The defendant’s demand for the full amount was fraudulent b) The effective dates for the repayment of the loans were calculated by the Defendants from the dates indicated on the letters of offer as opposed to the dates when the disbursements or loan deposits were made or received in the Plaintiffs transactional account No. 1003575213. c) The Defendant was contradictory on the issue of the rate of interest that was applicable on the loans advanced 20%. its Pleadings 18%. during the hearing the Defendant’s sole witness DW1 DW1’s evidence corroborated the Plaintiffs evidence that the interest rate agreed and applicable on the loans between the parties was 18%. 88. It was submitted that the interest rate applied on the loans was a crucial issue in calculating and determining the amount of loan repayable, the amount of loan repaid and the outstanding loan balances. That, the Defendant failed to discharge its burden on this issue and did not demonstrate in court, the rate of interest it applied in arriving at its loan balances whether it was 18% or 20%. That, with this ambiguity, it is not possible for the court to determine whether what the Defendant’s claims as unpaid loan are justified or not. The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 55/7 7

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89. It was submitted that in Margaret Njiru Muiruri -vs- bank of Baroda(supra), the Court of Appeal ordered the bank to furnish detailed statements of accounts to the borrower where the dispute involved excessive interest charged on the loan advanced. The Court stated; “The bank shall within 60 days from the date of delivery of this Judgment, furnish to the appellant and to the High Court, detailed statements of accounts in relation to both the loan and current accounts from the inception of both accounts showing all debits and credits and interest rates charged at different time so as to arrive at the balance claimed by the Bank to be outstanding on each account.” 90. It was submitted that the Plaintiffs had sought for detailed Statements of their accounts in their amended plaint and that they demonstrated that they had repaid all the disbursed loans and produced evidence on the loan repayment where both rates of interest 18% and 20% were applied as calculated on a scientific calculator. 91. It was submitted that the power of sale was not exercised lawfully and procedurally as the defendant did not comply with the Legal requirements of giving a 90 days’ Notice to the Plaintiffs as required by Section 90 of the Land Act. 92. It was submitted that the Plaintiffs were only served with a demand latter dated 17/07/2017, the 45 days redemption Notice, Notification of sale and the schedule of property all served by Crater view Auctioneers on 27/09/ 2018.That, the Plaintiffs denied service and/or receipt of the first statutory Notice dated 18/09/ 2017 and another Statutory Notice dated 09/04/2018 contained in the Defendant’s list of The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 56/7 7

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documents. That, the Defendant did not produce any evidence to prove service of the Statutory Notices upon the Plaintiffs and there were no signed and /or stamped notices to prove any physical service. 93. It was submitted that on the face of the First and Second Statutory Notices produced by the Defendant, there was an indication of ‘advance service by registered mail’ but there was no receipt produced to confirm the mail was registered and no stamped copy was produced to show the Notices were sent by registered mail. That, where the chargee denies service of the statutory Notice, the burden to prove service lies with the Chargor and if the Chargor fails to discharge that burden, then the Chargor cannot exercise the statutory power of sale. Reliance was placed on Muga Developers limited -vs- Equity Bank of Kenya limited & 4 Others (2020 ) eKLR where D.S Majanja J ( as he then was) quoted the Court of Appeal case of Nyagilo Ochieng and Anor -vs- Vanuel Ochieng and 2 others (1995-1998 ) 2 E.A 260 where the issue of service was articulated as follows; “The appellants stated, in their plaint, that they did not receive any statutory notices . This averment should have put the bank on guard. It is for the chargee to make sure there is compliance with the requirements… That burden is not in any manner on the Chargor. Once the Chargor alleges non-receipt of the statutory notice it is for the chargee to prove that such notice was in fact sent. It must be understood that in face of the denial of receipt of statutory notice or notices it is incumbent upon the chargee to prove the posting. It would have been a very simple exercise for the bank to produce a slip or letters containing statutory notice or notices. The bank did not do so instead an officer from the bank simply produced file copies of the notices to prove the same were sent. Even on balance of probability it is not sufficient to say that a file copy is proof of posting. Unless the receipt of The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 57/7 7

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statutory notice is admitted, posting thereof must be proved and upon production of such proof the burden of proving non-receipt of such notice or notices shifts to the addressee as is contemplated by section 3(5) of the interpretation and General Provision Act, Cap 2, Laws of Kenya. It is quite possible that such notices were sent but that fact, in the face of the denial of receipt, must be proved. It is possible that the letters addressed to the two appellants were received by the first respondent who avoided telling the appellants of anything about the same as he was the “villain in the matter”. In the absence of proof of such posting the Court is constrained to hold that the sale by auction was void. [Emphasis mine] 94. As to whether the Plaintiff s have proved their claim against the Defendants, it was submitted that the Plaintiffs evidence had not been challenged and it has demonstrated and proved their claim as particularized in their Amended Plaint. That, PW1 clearly demonstrated, in his evidence and the Exhibits produced, in Court the amounts disbursed into their transactional account No. 1003575213 which was always less than the full amount indicated in the letters of offer. That, they also proved the amounts of money lost, withdrawn, misappropriated and/or unlawfully transferred from the said transactional account No. 1003575213 without their consent and/or authority hence the Plaintiff s were entitled to payment of all the money as particularized in the amended plaint. 95. It was submitted that the Defendant had not proved its counter-claim and that the particulars therein were lumped together as a loan claim. That, the other items of the Counter-claim other than the loan arrears e.g., default Interest, Credit Life OB, Credit Life Arrears, Insurance Premium Loan Arrears were not claimed or demanded from the Plaintiffs earlier for their response on the same prior to the filling of the counter-claim and the said The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 58/7 7

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items were not proved. That, in their claim, the Defendant alleged a sum The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 59/7 7

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of Kshs. 10,108,778.98 was disbursed to the Plaintiffs. 96. It was submitted that as stated in evidence by the Plaintiffs and confirmed by DW1, any loan disbursement or deposit was first disbursed and/or deposited in the transactional account of the customer. That, in their case, the alleged sum of Kshs. 10,108,778.98 was not deposited in the Plaintiffs transactional account No. 1003575213 but was a transfer from loan account No.1003575371 to the transactional account No. 1003575213. 97. It was contended that a loan could not be deposited in the loan repayment account before it was first deposited in the transactional account. It was submitted that the amount of Kshs 10,108,778.98 was not advanced as a loan and was another fraudulent and misleading scheme by the Defendant to justify a non- existent loan. 98. In conclusion, it was submitted that the Plaintiffs have proved their case on a balance of probabilities. 99. The Defendant identified the issues for determination to be; a) Whether the Plaintiffs breached the terms and special conditions contained in the Letters of Offer dated 8th October 2013; 1st July 2014; 14th April 2016 and 25th August 2016 and Deeds of Rental Assignment dated 15th May 2016 and 10th October 2016. b) Whether the Plaintiffs had proved fraud on part of the Defendant? c) Whether there were illegal deductions and withdrawals made to the Plaintiffs’ account? d) Whether the Defendant’s realization process was conducted within the purview of the law. The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 60/7 7

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e) Whether the Plaintiffs were entitled to the prayers sought in the Amended Plaint. f) Whether the Defendant was entitled to prayers sought in the Counterclaim. g) Who should bear the costs of the suit? 100. As to whether the Plaintiffs breached the terms and special conditions contained in the letters of offer and Deeds of Rental Assignment dated 15/04/2016 and 10/10/2016, it was submitted that the 2nd Plaintiff admitted that that the Plaintiffs were indebted to the Defendant the principal sum of Kshs. 30,000,000.00 and assigned the rent income received from the properties to the Defendant. That, nnotwithstanding the clear terms of the Special Conditions contained in the Letters of Offer dated 08/10/2013,01/07/ 2014, 14/04/2016 and 25/08/ 2016 and Deeds of Rental Assignment dated 15/05/2016 and 10/10/2016, the Plaintiffs had breached the said terms by; failure to remit the rental income received from the property to the Bank and failure to provide a detailed listing of all assets owned. 101. It was submitted that the Plaintiffs did not controvert the evidence that they executed the letters of offer and Deeds of Rental Assignment that they did not provide evidence by a Handwriting Expert to show that the signatures on the documents were forgeries. That, the parties confirmed that the terms were binding and their contractual relationship was as contained in the Letters of Offer. The court was urged to arrive at that finding guided by the following authorities: (a) Mumias Sugar Company Limited -vs- Freight Forwarders (K) Limited [2005] eKLR where the Court of Appeal stated; “We consider that a contract to enter into a lease or sub lease contained in correspondence between the parties consisting of letters signed by authorised employees of companies being the intended lessor and lessee is not prevented from being the basis of a suit by subsection (3) of the The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 61/7 7

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Law of Contract Act Cap 23. Such correspondence is a sufficient memorandum. Therefore, it is not necessary in such circumstances to rely upon the proviso to that subsection and it is not necessary to make a finding as to whether there was part performance arising from the appellant having possession of the keys to the premises allegedly for the purpose of inspection only.” (b) National Bank of Kenya Ltd -vs- Pipe plastic Samkolit (K) Ltd & another [2001] eKLR where the Court of Appeal stated; “This, in our view, is a serious misdirection on the part of the Learned Judge. A court of law cannot rewrite a contract between the parties. The parties are bound by the terms of their contract unless coercion, fraud or undue influence are pleaded and proved. There was not the remotest suggestion of coercion, fraud or undue influence in regard to the terms of the clause. As was stated by Shah JA in the case of Fina Bank Ltd v Spares and Industries Ltd (2000) 1 EA 52: “It is clear beyond peradventure that save for those special cases where equity might be prepared to relieve a party from a bad bargain, it is ordinarily no part of equity function to allow a party to escape from a bad bargain.” 102. It was submitted that if the Plaintiffs had not performed their terms of the contract, they cannot be discharged from the claim of damages. Reliance was placed on Uba Kenya Bank Limited -vs- Farm Transport and Technical Services Ltd & 5 others (Civil Suit 286 of 2013) [2024] KEHC 2805 (KLR) (Commercial and Tax) (20 March 2024) (Judgment), where the court (Mugambi J) stated; “...., the letter of offer dated 26th September 2011 contains the terms of the facility, which identifies the 1st defendant as the obligor(debtor) in an invoice discounting (receivables discounting) facility. ... The borrower (debtor) is still The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 62/7 7

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ultimately responsible for repaying the advanced funds to the financing The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 63/7 7

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company. 18. The proceeds or benefits to the financing company facilitates the mechanism of repayment but does not eliminate the borrower's obligation to ensure that the financier is repaid in full, including any fees or interest accrued. The argument by the 1st respondent that it was discharged from its liability is therefore untenable from the start. It remained an obligor (debtor) as described in the letter of offer and was not discharged from liability. I say this noting that neither the offer letter nor the notice of assignment contained any express provision that would have released the 1st defendant from his obligation to pay the amounts due, by way of the assignment. (own emphasis) 19. The defendants claim that the plaintiff should pursue Mumias would also fail on account of the doctrine of privity of contract. The only party with which the plaintiff had privity of contract for purposes of the borrowing agreement was the 1st defendant even if the contract between them was intended to benefit Mumias.” 103. It was submitted that the Plaintiffs took the finance facility and failed to settle the amount of the said debt and should therefore settle the said claim as per the terms of agreement between the parties. Reliance was placed on Hyundai Motors Kenya Limited -vs- East African Development Bank Ltd [2007] eKLR where the court stated; “They must have in mind that the money of the lenders is not for free. The loan advanced was not meant to be candy sweets to be enjoyed freely by the Applicant. The monies of the lenders are a carrot accompanied by a stick and the stick can only be used when there is a default. Where there is an absolute default, the party in default cannot avoid the stick simply because it has taken The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 64/7 7

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the carrot.” The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 65/7 7

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104. It was submitted that the facility advanced was not for free and the Plaintiffs enjoyed the benefit arising thereto hence should settle the balance thereon plus profit and default damages agreed. 105. As to whether the Plaintiffs have proved fraud by the Defendant; and whether there were illegal withdrawals and deductions made to the Plaintiffs’ account, it was submitted that fraud is a serious allegation that a party must plead and prove. That the test for proving it is much higher than proving other acts of civil liability. Reliance was placed on Moses Parantai & Peris Wanjiku Mukuru suing as the legal representatives of the estate of Sospeter Mukuru Mbeere (deceased) - vs- Stephen Njoroge Macharia [2020] eKLR where the Court of Appeal stated; “…That the allegations of fraud were merely stated in the plaint but not proved and that no evidence was adduced to prove that the respondent participated in any fraud or was aware of any purported fraud when he purchased the suit land.,, (…) The Black’s Law dictionary defines fraud as follows: “A knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment.” (…) It is a principle of the law that the party who alleges must prove. The appellants alleged that the transfer of the suit land from the deceased all the way to respondent was fraudulent. Did the appellant prove to the required standard the allegations of fraud against Janet, Joseph and the respondent? In the case of Urmila The Judiciary of Kenya w/ o Mahendra Shah v Barclays Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 Bank 66/7 7

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International Ltd & another [1979] eKLR, this Court took the view that the onus to prove fraud in a The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 67/7 7

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matter is on the party who alleges it. Similarly, in cases where fraud is alleged, it is not enough to simply infer fraud from the facts. In Vijay Morjaria v Nansingh Madhusingh Darbar & another [2000] eKLR, Tunoi JA (as he then was) stated as follows: “It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must of course be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and as distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.” Emphasis ours. Given the seriousness of the allegations, the onus was on the appellants to provide evidence to the Court of the alleged fraud which evidence must meet the standard of proof as was underscored by this Court in Central Bank of Kenya Limited v Trust Bank Limited & 4 Others [1996] eKLR as being beyond that of a balance of probabilities but not beyond reasonable doubt. In that case, the Court rendered itself as follows: “The appellant has made vague and very general allegations of fraud against the respondent. Fraud and conspiracy to defraud are very serious allegations. The onus of prima facie proof was much heavier on the appellant in this case than in an ordinary civil case.” In the instant case, the appellants needed to not only plead and particularize the fraud, but also lay a basis by way of credible evidence upon which the Court would make a finding that indeed The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 68/7 7

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there was fraud in the transaction leading to the transfer and registration of the suit land in the name of Janet all the way to the respondent. That the trio were parties to the fraud or had knowledge of it. The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 69/7 7

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106. Other authorities relied on were Hangzhou Agrochemicals Industries L i m i t e d - v s - P a n d a F l o w e r s L i m i t e d [ 2 0 2 1 ] e K L R a n d Demutila Nanyama Pururmu -vs- Salim Mohamed Salim [2021]] eKLR. 107. It was submitted that the Plaintiffs never made a complaint with the Defendant on the alleged fraudulent activities and nor did they make a complaint to DCI or to the Central Bank of Kenya, which is a regulator of the Defendant That, DW-1 took time to explain how draw down was done, as interests are charged at the time of draw down. That, other agreed charges were to be paid by the Plaintiffs. It was contended that since no complaint was ever made to the Defendant on alleged fraudulent activity on their accounts, coupled with the fact that there is no forensic or audit report to impeach the entries on the Plaintiff’s Statements of Accounts, the Plaintiffs were seeking to turn the Court into an Accountant without even seeking for an order of accounts to be undertaken. 108. It was submitted that on the specific alleged allegations of amounts illegally withdrawn, the Defendant tendered the following evidence: (a) Evidence of Real Time Funds Transfer from the Defendant’s bankers Kenya Commercial Bank to Co-operative Bank of Kenya Ltd Account No.01148283787800 of a transfer that was authorised by the Defendant on behalf of Plaintiffs for payment of material supplies to Tejo Steel Hardware amounting to Ksh.930,000/= on the 17th day of October, 2016.Exhibit 21. (b) Valuation fees deposit for the property provided as security. Kshs.20,000.00 in line with Clause 14(i) of the Letter of Offer dated 8th October 2013. (c) Ksh. 400,000 as authorised by the Plaintiff to his nephew. Exhibit 21 (d) The Judiciary of Kenya A loan charge of Kshs. 6,760.00 and excise Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 duty of 70/7 7

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6,760,000.00 as contractually agreed by parties as per the terms of the Letter of Offer dated 8th The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 71/7 7

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October 2013.No deduction made of Ksh.778,457.5 as alleged . (e) The Risk Management Fund and excise duty of Ksh.37,500 and Kshs. 3,750. Kshs.67,600 Risk Management Fund, Liquidity Adjustment Facility and processing fees and excise duty of Kshs. 6,760 all as contractually agreed by parties as per the terms of the Letter of Offer dated 8th October 2013. (f) Withdrawal by Plaintiffs of Kshs. 50,000.00 and Kshs. 218,400.00. (g) The Kshs. 135,800.00 and Kshs. 140,800.00 was the Plaintiffs paying their suppliers via RTGS. Exhibit 21. (h) Kshs.5,022.00 authorised by 1st Plaintiff as transfer to the Loan Guarantee Deposit account. (i) Kshs. 97,836.53, the Plaintiffs received an amount less by 60,502.82 due to a late top up (j) The charges on Account No. 1003191963, were to clear the last loan using the loan guarantee deposit the Plaintiff had of Kshs. 89,510.00. 109. Consequently, it was submitted that the Bank had justification to deduct the amounts pleaded or cause the transfer of amounts on the Plaintiff’s request. Reliance was placed on D. T. Dobie & Company (K) Ltd -vs- Wanyonyi Wafula Chebukati [2014] eKLR where the court stated; “Denning J. in MILLER –Vs- MINISTER OF PENSIONS (1947) discussing that burden of proof had this to say“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘We think it more probable than not’, the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 72/7 7

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the The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 73/7 7

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tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.” [emphasis mine] 14. Section 107 and 108 of Evidence Act Cap 80 provides who bears the burden of proof in a case. Those two Sections provide“107. (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. 2. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 108. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.” 110. As to whether the Plaintiffs are guilty of material nondisclosure and whether the Defendant’s realization process was conducted within the purview of the law, Reliance was placed on Stella Kavutha Muthoka & another -vs- Kenya Women Microfinance Bank Ltd [2022] eKLR where the court stated; “54. The Applicants in this case have not disputed the arrears owed to the Respondent. They have also not indicated whether they have been servicing loan. While dealing with the maxim of clean hands in the case of Francis Munyoki Kilonzo & Another vs Vincent Mutua Mutiso [2013] eKLR that was relied upon by the Defendant herein, Mutende Judge rendered herself as The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 74/7 7

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follows ‘‘An applicant seeking such orders must come to court with clean hands. The maxim of equity on the principle of equity is expressed as follows“No one is entitled to the aid of a court of equity when that deed has become necessary through his or her own fault…a court of equity shall not assist a person in extricating himself or herself from the circumstances that he or she has created…” 55. There is a Kiswahili saying that resonates well with that maxim. It goes like this; ‘‘Dawa ya deni ni kulipa’’ which loosely translated simply means ‘‘that a solution to a debt is to pay or attempts to repay’’. Had the applicant demonstrated efforts to pay then perhaps equity could have favoured them. 111. It was submitted that due to the default, the amount has now reached the in- duplum rule and the Defendant should be allowed to realize the property. 112. As to whether the plaintiffs are entitled to the prayers sought in the amended plaint or whether the defendants are entitled to judgement as sought in the counterclaim, it was submitted that the Plaintiffs were granted injunctive orders stopping the sale of the charged property but the said orders did not bar the Plaintiffs from making monthly instalement.. That, the Plaintiffs can only be discharged from their obligations by paying the total overdue amount owed to the Bank. Reliance was placed on section 176 of the Evidence Act for the submission that a statement of accounts is conclusive evidence of the entries therein. Further reliance was placed on John Njoroge Warui -vs- Universal Bank Ltd [2000]eKLR where the court stated: “With regard to the complaint that excessive or wrongful interest was charged, I think it should be noted that the applicant does not claim to be a qualified accountant or auditor. Accordingly, what he claims to be outstanding in The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 75/7 7

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accordance with his calculations must be treated as the product of an assessment by a layman. Section176 of the Evidence Act provides: - The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 76/7 7

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“Subject to this Chapter a copy of any entry in a banker’s book shall in all legal proceedings be received as prima facie evidence of such entry, and of the matters transaction and accounts therein recorded. 113. It was submitted that the Plaintiffs were not qualified accountants. That they never subjected the Defendants Statement of Account to forensic audit. That, there is no report indicating that illegal deductions and withdrawals were made or a report impeaching the accuracy of the Statements of Accounts exhibited by the Defendant. That, the Bank provided the Plaintiffs with bank statements on several occasions and the Plaintiffs had never raised an issue. That, this Court could not be turned into an Accountant without a specific prayer for taking of accounts and specifically where no forensic audit or Accountant’s Report had been submitted to counter the evidence produced by the Bank. 114. As to who should bear the costs, reliance was placed on Section 27 of the Civil Procedure Act for the submission that ‘costs follow the event.’ Further reliance was placed on Judicial Hints on Civil Procedure, 2nd Edition, by Kuloba J (as he then was) at page 94 where it is stated; 151.Court’s Discretion as to Costs Generally Costs are in the unfettered discretion of the court, subject to such conditions and limitation as may be prescribed and to the provisions of any law for the time being in force, but they must follow the event unless the court has good reasons to order otherwise: Kneller, J (as he then was) in Chemilabs v Lalji Bhimji and Shmji Jinabhai Patel, High Court of Kenya at Nairobi, Civil Case number 1062 of 1973, (3 December 1976, and Crabbe, JA in Kholi and others v Bachulal Popatlal [1964] EA 219 at 229, (16 March 1964)…” 115. In conclusion, it was submitted that the Plaintiffs had dragged the Defendant to The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 77/7 7

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court unfairly ‘that they admitted to having executed the various letters of offer which bind them. That, they failed to honor the terms and proceeded to make unsubstantiated claims. That, the Bank has had to incur costs in defending a claim, which the Plaintiffs know, they ought to have paid the outstanding loan hence they should bear the costs of the suit. 116. I have carefully considered the pleadings, evidence on record and the rival submissions. The following issues appear to arise for determination”: a) Whether the transactions in the accounts held by the Plaintiffs in the Defendant bank were lawful/authorised. b) Whether the Defendant disbursed less amounts to the Plaintiffs as opposed to the loan amounts indicated in the letters of offer. c) Whether the exercise of the statutory power of sale by the Defendant was lawful/procedural. d) Whether the Plaintiffs and Defendant are entitled to the prayers sought. e) What orders should be given on costs? 117. The following facts are not in dispute; a) The Plaintiffs had the following joint accounts in the Defendant Bank: A/c No. 1003575213 & A/c No. 1003575371. b) The 1 st Plaintiff and his sister Monica Kimanthi had a joint account No. 1003191963 in the Defendant bank. c) The Plaintiffs were given loan facilities by the Bank pursuant to the letters of offer dated; 08/10/2013, 01/07/2014, 14/04/2016 & 25/08/2015. d) The 1st Plaintiff executed the letters of offer willingly and was bound by the terms therein. The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 78/7 7

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Whether the transactions in the accounts held by the Plaintiffs in the Defendant bank were lawful/authorised. Account No. 1003575213 118. The Plaintiffs averred that this account was opened sometime on 10/09/2013 in the name of the 2nd Plaintiff. 119. The Plaintiffs averred that on 19/09/2013, the Bank transferred Kshs. 20,000/= from the account to an unknown account. In response, the Bank averred that the amount was valuation fees deposit for the property provided as security. Indeed, the bank statement (P.Ex 2) shows that the amount was transferred. 120. The Letter of Offer (1st Letter of offer) executed by for kshs 3,000,000/= was the parties on 08/10/2013 and clause 14(i) therein states that; “ This offer is subject to providing adequate and acceptable securities for the loan amount and a valuation being carried out on Title Number Emali Township Block 1/150 by DTM’s approved property valuers, at the Borrower’s cost, availability of funds and compliance by DTM with any and all legal requirements restrictions rules and regulations.” 121. It is evident that the contested amount was transferred by the Bank before the parties entered into a binding contractual relationship however, financial institutions require properties provided as security to be valued before they enter into binding contractual relationships so as to be sure that the security supports the amounts advanced. In this case therefore, it is reasonable that the Bank conducted the valuation The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 79/7 7

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process before executing the letter of offer and clause 14(i) is clear that the valuation was to be conducted at the borrower’s cost. 122. The Plaintiffs did not provide evidence to show that they paid for the valuation through other means hence it is most probable that the amount of Kshs 20,000/= was used for valuation. This is buttressed by the admission in the amended plaint that the Plaintiffs had applied for a loan of Kshs 3 million sometime in September 2013. It appears then that the said application was followed by preliminaries such as valuation of property before the parties could enter into a binding contractual relationship. In the circumstances, the amount has been properly accounted for. 123. The Plaintiffs averred that on 12/11/2013, the Bank unlawfully and illegally transferred Kshs 400,000/= from the account to an unknown account and it was never reversed/refunded. The response given by the Bank was that the transaction was an authorised transfer to the Plaintiffs’ nephew. The Bank made reference to D.Ex 21 which is a bunch of funds transfer forms, invoice and cash deposit slips. A keen perusal of the documents I did not find any relationship with the said sum and they all relate to transactions done in the year 2016. According to the Bank statement (P.Ex 2) there is an indication that kshs 400,000/= was transferred on that day but it is also evident that the account did not have that kind of money hence the reason the balance was captured as 399,222.50/=. It appears that this amount was captured in the records on that day but the actual deduction happened later when the account was funded. Turns out this sum is related to the 2nd loan offer as will be demonstrated herein below. 124. The Plaintiffs averred that the Bank had informed them of an offer where any loan from 3 million and above was to be repaid at an interest rate of 18% P.A, that there would be no payment of the loan application fee and that the Risk Management Fund was 1.25%. That despite the said offer, the Bank prepared a letter of offer with an interest of 20% and deducted all the charges it had offered not to deduct. The Bank The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 80/7 7

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denied the allegations and averred that the interest rate of 20% was contractually agreed by the parties. 125. Clause 5.1 of the 1st letter of offer provides that; “The borrower shall pay interest at the rate of 20% per annum on a reducing balance or such other rate as may be determined by DTM from time to time calculated on a day-to-day basis on cleared balances inclusive of the first and last days of the period during which it accrues and on the actual number of days elapsed on a 365-day year. Interest shall be payable monthly in arrears on the dates when the instalments of the principal amount are due and shall be compounded in the event of not being punctually paid with the monthly installments.” 126. It is therefore evident that the interest rate agreed between the parties was 20% and as such, the Plaintiffs had the burden of proving the variation to 18% which they did not do. The Parol Evidence Rule prevents the introduction of oral evidence to vary the terms of a written contract. Further, there is a hallowed legal maxim to the effect that it is not the business of courts to re-write contracts between the parties. Parties are bound by the terms of their contracts unless coercion, fraud or undue influence are pleaded and proved (National Bank of Kenya Ltd vs Pipeplastic Samkolit (K) Ltd [2002]2 EA 503). 127. With regard to the RMF, clause 8 provides that; “The Borrower shall pay, towards the Risk Management Fund, a nonrefundable amount equivalent to 1.25% of the value of the loan amount as a condition The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 81/7 7

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precedent to the granting of the loan.” 128. Consequently, it is evident that the interest rate and RMF rate were contractually agreed between the parties. 129. The Plaintiffs averred that out of the loan of Kshs 3 million, the Bank deposited Kshs 2,221,542.50/= and debited Kshs 778,457.5/= which amount was allegedly owed to the Bank by the Plaintiffs before the loan was advanced. They averred that the amount was wrongfully, unlawfully and illegally deducted. The Bank denied the allegations and averred that the only deductions were a loan charge of kshs 6,760 and excise duty of Kshs 6,760,000.00. The figures indicated by the Bank appear to be erroneous as the ones on the statement are Kshs 6,760 for excise duty and Kshs 67,600 for loan charge. 130. The Bank statement (P.Ex 2) also shows that the loan of 3 million was disbursed on 12/11/2013 but the actual amount which hit the account was Kshs 2,221,542.50/=. The statement shows that the amounts of Kshs 400,000/= (see paragraph 77 above), kshs 300,000/= and Kshs 79,180/= had been indicated as transfers from the account prior to the disbursement of the loan and since the account didn’t have that kind of money, the said transfers appeared as negative balances. The total negative balance at the time of disbursement of the loan was Kshs 778, 457.5/= hence the reason the actual amount in the account reflected as 2,221,542.50/=. 131. Out of the three amounts indicated as transfers prior to disbursement of the loan, the Plaintiffs acknowledged that Kshs 79,180/= was utilized for valuation of the security. The amount of Kshs 400,000/= is what the Bank averred was an authorised The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 82/7 7

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transfer to the Plaintiffs’ nephew but there is no evidence to back it up as explained in paragraph 77 above. Additionally, DW1 admitted not knowing why the amount was deducted. The amount of Kshs 300,000/= is also contested and the explanation given by DW1 was that it was a loan guarantee deposit i.e 10% of the loan amount. However, DW1 admitted that this deduction was not contained in the offer letter. This sum and subsequent deduction was not contractually agreed between the parties. Consequently, the amount unaccounted for under that complaint is Kshs 700,000/= since the valuation charge was acknowledged. 132. The Plaintiffs averred that the RMF and excise duty were wrongly calculated and are therefore claiming kshs 33,110/= which they averred was unlawfully deducted. The Bank responded that there was no waiver of the mentioned charges and that the charges remained kshs 67,600 which were RMF, Liquidity Adjustment Facility, processing fees and excise duty of kshs 6,760/=. 133. The statement (P.Ex 2) shows that the Bank deducted a loan charge of Kshs 67,600/= and excise duty of 6,760/=. According to the letter of offer, the RMF was Kshs 37,500/= i.e (1.25/100 x 3,000,000) and there were additional charges prescribed by Clause 13 to wit; “The Borrower will pay to DTM the loan, Borrower fee, commission fees and other charges as laid out in DTM’s loan application terms and conditions.” It is trite that the total of such charges is what is subjected to the applicable percentage to constitute excise duty and in the year 2013, the rate of excise duty was 10%. In the circumstances therefore, the Plaintiffs have not demonstrated that the facility advanced was only subject to the RMF and no other charges. The claim of Kshs 33,110/= is therefore not substantiated. The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 83/7 7

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134. The Plaintiffs averred that the Bank deducted a monthly installment of Kshs 103,339.08/= for 8 months (based on an interest rate of 20%) instead of a monthly The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 84/7 7

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installment of Kshs 100,281.3/= (based on an interest rate of 18%). As stated herein above, the interest rate that was contractually agreed by the parties was 20% and the Plaintiffs did not produce any evidence of variation. 135. The Plaintiffs averred that on 13/11/2013 & 14/11/2013, there were unlawful withdrawals of Kshs 50,000/= and Kshs 218,400/= respectively. The Bank responded that the withdrawals were made by the Plaintiffs and cannot be blamed for poor book keeping by the Plaintiffs. The statement (P.Ex 2) confirms that the said withdrawals were made and the narrative captured is; ‘savings withdrawal’. In light of the allegation that the withdrawals were unauthorized and the confirmation by the statement that indeed the withdrawals were done, the burden of proof shifted to the Bank to demonstrate that the withdrawals were done by the Plaintiffs by availing the relevant documentation to rebut the claim. In Kshs 50,000/= and the circumstances therefore, the plaintiffs have established the claims of Kshs 218,400/= on a balance of probability. 136. The Plaintiffs averred that on 03/12/2013 and 17/12/2013, the sums of Kshs 135,800/= and 140,800/= respectively were unlawfully transferred from the account to unknown destinations. The Bank denied this claim and averred that the Plaintiffs paid their suppliers via RTGS. The statement (P.Ex 2) confirms that indeed the said transfers were done on the said dates. Similarly in this claim, the Bank had the onus of rebutting it by providing the relevant documentation but it failed to do so. The Bank should have availed the RTGS alluded to. The Bank referred the court to D.Ex 21 but there is nothing in the attached documentation which relates to the two transactions. Furthermore, the referenced documents relate to transactions done in 2013 yet the claim is for transactions done in 2013. The Plaintiffs have therefore established the The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 85/7 7

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claims of Kshs 135,800/= and 140,800/=. The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 86/7 7

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137. The Plaintiffs averred that the Bank created an illegal standing order where a sum of Kshs 5,022/= per month was being deducted from the account from 13/01/2014 to 12/01/2015. The Bank responded that the said deduction was authorised by the 1st Plaintiff and the funds were transferred to his Loan Guarantee Deposit Account. The statement (P.Ex 2) confirms that indeed a standing order of Kshs 5,022/= was deducted for the said period hence an amount of Kshs 65,286/= i.e (5,022 x 13) was deducted. 138. According to the Concise Oxford English Dictionary, a Standing Order is; ‘an instruction to a bank by an account holder to make regular fixed payments to someone.’ In this case, it should have been easy for the bank to produce the instructions from the Plaintiffs and the said Loan Guarantee Deposit Account where the money was deposited. In the circumstances, the Plaintiffs have established the claim of Kshs 65,286/=. 139. The Plaintiffs averred that in June 2014, they applied for a top-up to make an aggregate of Kshs 6,000,000/=. That the bank deposited a top-up difference of Kshs 3,394,127.55 instead of Kshs 3,491,964.08/= thus they lost a sum of Kshs 97,836.53/= in the top-up transaction. The bank responded that the Plaintiffs received an amount less by Kshs 60,502.82/= which was a result of the top-up amount being late and the principal already charged of Kshs 60,502.82/=. 140. The letter of offer for the top-up is dated 01/07/2014 (2nd letter of offer) and the top-up amount indicated therein is Kshs 3,394,127.55/=. The statement (P.Ex 2) shows that this is the exact amount that was credited to the Plaintiffs account on 25/07/2014. The loan statements (P.Ex 10 & D.Ex 15) show that the outstanding loan balance as at 25/07/2014 was Kshs 2,545,369.63/= which means that the top-up The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 87/7 7

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amount should have been 3,454,630.37/= (6,000,000 - 2,545,369.63). It therefore means that the amount disbursed as top-up was less by 60,502.82/=. The bank explained that this The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 88/7 7

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happened because the top-up was late and the repayment for the principal loan had already been charged Kshs 60,502.82/=. 141. Indeed, the loan statements show that Kshs 60,502.82/= was utilized towards payment of the principal loan hence making the top-up amount to be Kshs 3,394,127.55/= and it is evident that the said amount was disbursed. The claim by the Plaintiffs that they had paid an installment of Kshs103,339.6 on 12/07/ 2014 in respect of the loan of Kshs 3, 000,000/= is not supported by evidence. 142. The Plaintiffs averred that instead of applying 1.25% RMF on the topup sum of Kshs 3,394,127.55/=, the bank applied it, on the total loan of 6,000,000/= and a consequent 10% excise duty on the RMF hence unlawfully deducted Kshs 231,007.22/=. That a reversal of Kshs 83,844.68/= was done hence the claim is for Kshs 100,493.82/=. The bank denied that it was to apply 1.25% on the top-up amount only and averred that the charges were to be calculated from the loan of kshs 6,000,00/= because the top-up amount did not change and the only thing that changed was the outstanding balance. 143. Clause 7 of the 2nd letter of offer states that; ‘The Borrower shall pay towards the Risk Management Fund a non-refundable amount equivalent to 1.25% of the value of the loan amount as a condition precedent to the granting of the loan.’ Clause 1(d) defines ‘loan’ to mean; ‘the aggregate sum advanced by bank to the borrower pursuant to this offer or where applicable, the principal amount outstanding from time to time.’ 144. From the terms of the contract between the parties therefore, the bank was right to apply the 1.25% RMF on the aggregate loan of 6 million. The question however is whether this particular term of the contract was fair. It is evident that the Plaintiffs had already been charged 1.25% on the The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 89/7 7

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initial 3 million hence the sensible thing to do was The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 90/7 7

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to apply 1.25 RMF on the top-up amount only and not the whole figure. Applying it on the whole figure meant that the borrower would be charged a percentage higher that 1.25% eventually. 145. Courts have repeatedly held that unconscionable provisions in contracts should be set aside in the interests of justice. Halsbury’s Laws of England Volume 22 (2012) 5th Edition at Paragraph 298 states as follows on unconscionability: “Even in the absence of duress of persons or undue influence, there has long been jurisdiction to interfere with harsh and unconscionable transactions in several different areas of the law: for instance, in respect of salvage agreements; or against contractual penalties, forfeiture of mortgages, extortionate loans or expectant heirs. ... The jurisdiction of the courts to set aside is based on unconscientious conduct by the stronger party; relief will not be granted solely on the grounds that the transaction is unfair or improvident." 146. In Margaret Njeri Muiruri -vs- Bank of Baroda (Kenya) Limited [2014] eKLR, the Court of Appeal stated; "Courts have never been shy to interfere with or refuse to enforce contracts which are unconscionable, unfair or oppressive due to the procedural abuse during formation of the contract, or due to contract terms that are unreasonably favorable to one party and would preclude meaningful choice for the other party. An unconscionable contract is one that is extremely unfair. Substantive unconscionability is that which results from actual contract terms that are unduly harsh, commercially unreasonable, and grossly unfair given the existing circumstances of the case (See Black’s Law Dictionary, 9th Edition, Gardner, Ed.).” The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 91/7 7

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147. Consequently, the Banks’ application of 1.25% RMF on the aggregate loan was unfair and unacceptable and cannot be allowed to stand. Taking into account the reversal of Kshs 83,844.68/= which was conceded by the Plaintiffs, the claim of the balance of Kshs 100,493.82/= has been established. 148. Any other fee or charge applied to the aggregate amount of loan would also not be acceptable. This would include the amount of interest charged, 149. The Plaintiffs averred that on 28/07/2014, a sum of Kshs 480,000/= was illegally and unlawfully withdrawn from the account. The bank denied the claim and averred that it was the client who withdrew the money. The statement confirms that indeed the said amount was withdrawn on the said date.. In the absence of rebuttal evidence from the bank, the claim of Kshs 480,000/= was established. 150. The Plaintiffs averred that on 04/08/2014 and 08/09/2013, sums of Kshs 150,000/= and Kshs 276,360/= respectively were transferred from the account to unknown destinations. The bank denied the claim and averred that it was the client who transferred the amounts. The statement confirms that indeed the said amounts were transferred on the said dates. Again, the onus was on the bank to prove that the transfers were done with the instructions of the client. In the absence of that, the claims of Kshs 150,000/= and Kshs 276,360/= have been established. 151. The Plaintiffs also claimed the following amounts which are reflected in the statement except the entries 6 and 12. The funds transfer forms exhibited by the bank (D. Ex 21) do not reflect sums set herein below. I would therefor consider the claims as established by the plaintiffs. The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 92/7 7

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No. DATE 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26 25/04/2016 27/04/2016 09/05/2016 09/05/2016 09/05/2016 30/05/2016 31/05/2016 31/05/2016 02/06/2016 02/06/2016 06/06/2016 08/06/2015 10/06/2016 14/06/2016 20/06/2016 23/06/2016 04/07/2016 04/07/2016 08/07/2016 08/07/2016 15/07/2016 19/07/2016 14/10/2016 24/10/2016 25/10/2016 26/10/2016 NATURE OF TRANSACTIO N Cash Withdrawal Cash Withdrawal Transfer Cash Withdrawal Cash Withdrawal Transfer Cash Withdrawal Transfer Cash Withdrawal Cash Withdrawal Cash Withdrawal Cash Withdrawal Cash Withdrawal Cash Withdrawal Transfer Transfer Transfer Transfer Transfer Transfer Transfer Transfer Transfer Transfer Total AMOUNT (Kshs) 720,000 350,000 73,500 346,000 110,000 52,434.54 122,500 920,000 244,000 575,000 520,000 4,565 143,000 884,000 415,000 316,000 86,000 180,000 180,000 63,000 101,000 180,000 190,541 442, 268 232,830 213,280 7,607,919 153. From the foregoing, it would also appear that the following sums have been established under A/c No. 1003575213 are as follows; Ksh. 700,000, Ksh. 50,000, Ksh. 218,000, Ksh. 135,800, Ksh. 140,800, Ksh. 65,286, Ksh. 97,836.53, 150,000, and Ksh. 100,493.82, Ksh. 480,000, Ksh. Ksh. 276,360. The Judiciary Keny a of Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026

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67/77 Keny a Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026

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154. Consequently, when you add up the sum Ksh 7,607,919, it would appear that the plaintiffs have established a claim of Ksh 10,022,495.35. Account No. 1003191963 155. The Plaintiffs averred that this account was opened on 15/10/2012 and closed by the bank on 16/01/2017. This is the account that was jointly opened by the 1st Plaintiff and his sister, Monica Kimanthi. It was averred that by the time of the account closure, there were savings amounting to Kshs 89,510/= which were never refunded to the Plaintiffs. That, the bank made extra unlawful and unjustified charges on the account and created an unlawful standing order through which it unlawfully deducted funds. The bank denied that it made extra, unlawful and unjustified charges on the account and averred that the Plaintiffs did not clear the last loan in full hence the balance was cleared using the loan guarantee deposit the Plaintiffs had of Kshs 89,510/=. 156. The statement (P.Ex 17) shows that the Plaintiffs got four loans through the account to wit; kshs 400,000/= on 16/10/2017, kshs 400,000/= on 17/01/2013, Ksh 500,000/= on 17/04/2013 and Kshs 500,000/= on 24/09/2013. The statement shows that after disbursement of the last loan, the loan claims and loan set offs amounted to Kshs; 602,119.7/=. It, therefore, means that there was an amount of Kshs 102,119.7/= over and above the loan of Kshs 500,000/= . The court was not made aware of the terms and conditions of the said loan, it has no way of telling whether the said loan was paid in full or whether there was a balance. That said, the defendant did not produce any rebuttal evidence against the Plaintiffs that they had repaid the loan in full and that there was an overpayment by Kshs 89,510/=. 157. The Plaintiffs also claimed the following amounts with respect to the account but only item no. 1 was reflected in the statement (P.Ex 17); No. 1. 2. 3. DATE 18/04/2013 16/10/2012 17/01/2013 T he Judiciary of Keny a NATURE OF TRANSACTION Standing Order Extra Charges Extra Charges AMOUNT (Kshs) 73,420 3,000 3,000 Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 68/7 7

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4. 5. 6. 7. 8. 9. 14/01/2013 11/04/2013 17/04/2013 24/08/2013 28/08/2013 Extra Charges Extra Charges Extra Charges Extra Charges Extra Charges ATM Card Charges 1,228.91 5,948.71 3,000 2,635 3,220.26 385 158. There was no evidence of instructions by the plaintiffs for the standing orders Whether the Defendant disbursed less amounts to the Plaintiffs as opposed to the loan amounts indicated in the letters of offer. 159. The Plaintiffs averred that the first loan was for Kshs 3 million but the Bank deposited Kshs 2,221,542.50/= and debited Kshs 778,457.5/=. the Plaintiffs established a claim of kshs 700,000/= hence the amount disbursed pursuant to the 1st letter of offer was less by Kshs 700,000/= i.e (3,000,000 – 700,000) =2,700,000/=. 160. With regard to the 2nd letter of offer pursuant to which the Plaintiffs had applied for a top-up amount to make an aggregate of Kshs 6 million, and it turned out that the claims of Kshs 60,502/= and Kshs 103,339.6/= were not established. 161. With regard to the 3 rd letter of offer dated 14/04/2016, the Plaintiffs averred that they applied for a loan of Kshs 35,000,000/= but the bank offered to top-up their existing loan to make an aggregate sum of Kshs 20,000,000/= which was to be given as one lumpsum after deduction of outstanding balance of the existing loan. They averred that the said top-up difference was not advanced as a lumpsum. That, on 30/05/2016, the bank advanced Kshs 4,000,000/= and by that date, the loan balance was Kshs 2,565,648.48/= but according to the bank, the loan balance was Kshs 5,762,321.50/=. They averred that this balance seemed to take into account the sum of Kshs 2,856,918/= which appeared in the bank The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 69/7 7

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statement and which was not given as a loan The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 70/7 7

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but was deposited in the account without any approval or terms. The bank denied these averments and reiterated the particulars of the letter of offer. 162. The amount of Kshs 20 million was supposed to be a top-up to the aggregate of Kshs 6 million and indeed the 3rd letter of offer captures Kshs 20 million as the top-up amount. 163. The statement (P. Ex 4) shows that on 22/04/2016, an amount of Kshs 2,856,918/= was credited into the Plaintiffs account 1003575213. This is the amount which the Plaintiffs said was not a loan as it was given without any approval or terms. Was this part of the disbursements meant to make an aggregate of 20 million? . 164. The amount of 2,856,918/= was disbursed on 22/04/2016 and the loan st at emen t (P. Ex 10) shows that the balance in April 2016 was 2,911,984.06/= while the banks loan statement (D. Ex 22) shows that the balance as at 22/04/2016 was Kshs 2,921,223.78/=. Question is which of the two amounts should the court take to determine the sum that was to be deposited to create the Ksh 20,000 aggregate? Taking the amount indicated in the Plaintiffs’ statement, it means that the top-up amount was supposed to be; (20,000,000 - 2,911,984.06) = 17,088,015.94/=, as per the Bank (20,000,000-2,921, 223.78=17,078,776.22 165. The 4th letter of offer was executed on 25/08/2016 but prior to that, there was a disbursement of kshs 10,108,779/= on 07/06/2016 as per P. Ex 4 and Kshs 10,221,658.22/= on 06/06/2016 as per D. Ex 22. 166. Again, there is no agreement as to the amount of money that was disbursed prior to the execution of the 4th letter of offer. On what basis (letter of offer) was this The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 71/7 7

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amount disbursed? 3rd letter of offer? If so, what were the balances? What could have been the deficit? 167. With regard to the 4th letter of offer, the Plaintiffs averred that the top-up was supposed to amount to an aggregate of Kshs 30,000,000/= but the bank only disbursed an amount of Kshs 10,327,983.78/= on 14/10/2016. The bank responded that the balance before the top-up was kshs 19,672,016.22/= hence the top-up of Kshs 10,327,983.78/=. 168. PW1 testified that they never applied for a top-up to make an aggregate sum of Kshs 30,000,000/= and he also testified that they were never advanced the said sum. At paragraph 35 of the amended defence, the bank appears to agree with the Plaintiffs and I will quote the response verbatim thus; “The Defendant admits the contents of paragraph 8 of the amended plaint in particular the allegation that the Defendant did not advance the loan of Kshs 30,000,000/=. The Defendant avers that the balance before the top-up was Kshs 19,672,016.22/=, therefore the top-up amount was Kshs 10,327,983.78/= to make an aggregate of Kshs 30,000,000/=.” 169. Both parties are in agreement that the bank disbursed Kshs 10,327,983.78/= on 14/10/2016 hence the question which arises is what the loan balance was before the said disbursement. The Plaintiffs averred that after the disbursement of Kshs 10,327,983.78/=, the outstanding loan balance became 15,679,740.64/= but the only document available to guide the court is D. Ex 22 which shows that the balance as at 30/09/2016 was Ksh 19,671,216.22/=. 170. Considering the previous queries by this court the balance could The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 72/7 7

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also be Ksh 15,679,740.64/= and the aggregate would not be the same either way. This essentially means that the disbursement of kshs 10,327,983.78/= made an aggregate of Kshs The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 73/7 7

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29,999,200/= or Kshs. 26,007,724.42 171. Obviously, there is no aggregate of Kshs. 30,000,000. 172. The Plaintiffs averred that the bank unlawfully, unjustifiably and wrongfully deducted the sum of Kshs 1,072,500/= purported to be a charge for the sum of Kshs 10,327,983.78/= but it subsequently reversed a sum of Kshs 412,500/= leaving a sum of Kshs 517,990.24/= unrefunded. P. Ex 4 reflects the said charge but the reversal is not traceable. 173. The Plaintiffs averred that after the disbursement of Kshs 10,327,983.78/=, the bank deducted Kshs 800,208.18/= which was never accounted for. Again, the said deduction was not traceable from P. Ex 4 and D. Ex 22. 174. Clearly from the foregoing, it is apparent that that the disbursement were problematic and there were less amounts compared to the ones quoted in the letters of offer. 175. That also affected the interest and other charges. For instance in the case of the first loan of Kshs 3 million for example, DW1 agreed that despite the disbursement being less, the bank’s application of interest was based on the whole amount of 3 million. Whether the exercise of the statutory power of sale by the Defendant was lawful/procedural. 176. The bank’s pleadings and various letters of offer indicate that the applicable rate of interest was 20% whereas DW1’s evidence in court was that the rate of interest applied was 18%. With those two conflicting figures, this court is not in a position to The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 74/7 7

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calculate the loan repayable, the loan repaid and the outstanding balances. 177. As to the legal requirements regarding exercise of statutory power of sale, section 90 of the Land Act, Cap 280 Laws of Kenya provides as follows; Remedies of a chargee (1) If a chargor is in default of any obligation, fails to pay interest or any other periodic payment or any part thereof due under any charge or in the performance or observation of any covenant, express or implied, in any charge, and continues to be in default for one month, the chargee may serve on the chargor a notice, in writing, to pay the money owing or to perform and observe the agreement as the case may be. 2) The notice required by subsection (1) shall adequately inform the recipient of the following matters— (a) the nature and extent of the default by the chargor; (b) if the default consists of the non-payment of any money due under the charge, the amount that must be paid to rectify the default and the time, being not less than three months, by the end of which the payment in default must have been completed; (c) if the default consists of the failure to perform or observe any covenant, express or implied, in the charge, the thing the chargor must do or desist from doing so as to rectify the default and the time, being not less than two months, by the end of which the default must have been rectified; (d) the consequence that if the default is not rectified within the time specified in the notice, the chargee will proceed to exercise any of the remedies referred to in this section in accordance with the procedures provided for in this sub-part; and The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 75/7 7

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(e) the right of the chargor in respect of certain remedies to apply to the court for relief against those remedies. (3) If the chargor does not comply within ninety days after the date of service of the notice under, subsection (1), the chargee may; (a) sue the chargor for any money due and owing under the charge; (b)appoint a receiver of the income of the charged land; (c)lease the charged land, or if the charge is of a lease, sublease the land; (d)enter into possession of the charged land; or (e)sell the charged land; 178. The bank was therefore required to give a 90-days’ notice to the Plaintiffs and the Plaintiffs have denied being served with the said notice. The only document acknowledged by the Plaintiffs was a demand letter dated 17/07/2017. Once a borrower denies receipt of the statutory notice, the burden is on the lender to prove service as held by the Court of Appeal in the case of Muga Developers limited - vs- Equity bank of Kenya limited (supra). 179. The bank produced a letter dated 18/12/2017 (D.Ex 8) with the heading; ‘First Statutory Charge’ which gave the Plaintiffs three months to settle the charge debt and interest due. They produced another letter dated 09/04/2018 (D.Ex 9) which notified the Plaintiffs that it would exercise its statutory power of sale after expiration of 40 days from date of service of the notice. These two notices were not signed or stamped to indicate that they had been served physically. 180. Further, the face of the two letters indicates; ‘Advance copy via registered mail’ but there was no proof of such service through production of receipts or stamped copy. The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 76/7 7

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It is therefore my considered view that the bank did not discharge its burden of proving that it served the required statutory notice hence it could not legally exercise its statutory power of sale. Whether the Plaintiffs and Defendant are entitled to the prayers sought respectively 181. I reiterate here the prayers sought by each party. 182. The plaintiffs sought the following prayer: A statement of accounts in respect of the Plaintiffs Bank account No.1003575213 and account No.1003575371 1003191963 from the date the accounts were opened on 10/09/ 2013 and 15/10/ 2012 respectively. 183. From the evidence placed before me by each party, it emerges that this was an absolute necessity from the very beginning. Neither the plaintiffs nor the defendant presented to court an audit of the various accounts, and the certainty of what was outstanding or not outstanding. From the evidence before me it is evident that plaintiffs took out loans from the bank but the bank disbursed the loans in such a haphazard manner that it is difficult for this court to work out the specific sums. The parties needed to have engaged the requisite professionals to work out the figures and present them to the court. 184. From the foregoing, my considered view is that there is need for a forensic audit so that the figures can be reconciled and a report be generated on the amount of loan disbursed, amount repaid and the outstanding balances as at the date of filing suit. Similarly, the audit will reveal whether the Plaintiffs were in default and whether the bank’s statutory power of sale had crystalized. Section 3A of the Civil Procedure Act provides that; ‘Nothing in this Act shall limit or otherwise affect the inherent power of The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 77/7 7

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the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.’ 185. I find and hold that the prayer on accounts is tenable . It is in the interest of both parties to agree on how the accounts will be taken, and what documentation must be availed for that purpose. 186. An order be and is hereby issued for accounts to be taken of the plaintiffs’ accounts. The Defendant is directed to avail full statements of the plaintiffs’ loan accounts and a report be generated on the amount of loan disbursed, amount repaid and the outstanding balances as at the date of filing suit. Similarly, the audit will reveal whether the Plaintiffs were in default and whether the bank’s statutory power of sale had crystalized. 187. The upshot of that is that the following prayers by the plaintiffs and defendant are untenable until the above order is complied with. A declaration that the Defendant’s demand of the sum of Kshs.32, 855,211.82 as loan outstanding is unlawful, illegal and based on unjustified figures and calculations. The Plaintiff seeks for an order for refund of all the Plaintiffs’ misappropriated funds and for dividends on the share units from the year 2015. The sum of 11,033,241.28/= being the total amount unlawfully misappropriated in both Accounts No.1003575213 and 1003191963 through unjustified charges, unknown and an unauthorized transfers and illegal cash withdrawals. The Plaintiffs demand for the refund of the above sum and /or payment of the balance after offset any outstanding loan balance. 188. I found that there was no evidence of service of the statutory notices hence the defendants were not justified executing their statutory right of sale. Hence , without that, and without the accounts being taken the The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 78/7 7

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following order issues against the The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 79/7 7

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defendan t An injunction against the Defendant from advertising, selling, transferring, interfering, alienating the suit property and/or exercising its statutory power of sale pending the taking of accounts and proper service of notices. 189. Any orders on costs would have to abide all the foregoing. Dated, signed and delivered virtually on 10th April 2026 Mumbua T Matheka Judge Mr. Muia for the plaintiffs Mr. Anzala holding brief for Mr. Kibata for the defendant Judgment HCCC 14 of 2018 Page 2 of 2 SIGNED BY/FOR: LADY JUSTICE MATHEKA, TERESIA MUMBUA ★ TH E JUDICIAR Y O F KENY A ★ LADY JUSTICE MATHEKA, TERESIA MUMBUA Makueni High Court High Court Div Date: 2026-04-10 10:23:17 The Judiciary of Kenya Doc IDENTITY: 1603082265100511556723990999 Tracking Number:OOXZQS2026 80/7 7

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