Not stated in the judgment (1st to 4th Defendants/Applicants v Plaintiff/Respondent)
The bottom line
#A Kenyan court refused to order a bank to account for an alleged property sale due to lack of proof, but ordered the bank to release updated loan statements.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Is the Application barred by the doctrine of res judicata?
- 2.Have the Applicants proved that the Plaintiff exercised its statutory power of sale to warrant an order for the rendering of accounts?
Key legal issues
#Res judicata
The application is not barred by res judicata because the earlier 2022 application sought historical statements to calculate interest discrepancies, while this application seeks statements to trace proceeds of an alleged sale; the objectives are distinct.
Section 7 of the Civil Procedure Act bars re-litigation of matters directly and substantially in issue previously. However, the Court held that context matters: the 2022 application and the present one pursue different foundational objectives, so the bar does not apply.
Proof of exercise of statutory power of sale
The Applicants failed to discharge their evidential burden; circumstantial evidence (photographs, Google Maps screengrabs, CR-12) was insufficient and uncertified electronic evidence was inadmissible under Section 106B of the Evidence Act, so no accounting order could issue.
He who alleges must prove. A statutory sale requires a mandatory paper trail - 90-day notices, 40-day auctioneer notifications, newspaper advertisements and a Certificate of Sale - none of which were produced. The uncertified electronic evidence was incurably defective, and the Bank pleaded it elected to sue for the debt, losing the power of sale.
Chargee's election of remedies under Section 90(3) of the Land Act
A chargee must choose one of the menu of remedies; having formally pleaded election to sue for the debt, the Bank cannot simultaneously exercise the statutory power of sale and is bound by its election.
Relying on David Karanja Kamau v Harrison Wambugu Gaita, the Court held that electing to sue extinguishes the simultaneous statutory power of sale. The Court cannot compel the Bank to render accounts for a sale it legally denies conducting.
Disclosure of updated loan statements
The Applicants are entitled to updated standard loan statements to know the quantum of debt they defend against; withholding them hinders preparation of the defence and amounts to trial by ambush.
Although the accounting prayer failed, transparency demands that the Bank avail updated loan statements within 14 days, since a trial by ambush has no place in a modern commercial court.
Legal principles established
#- A party seeking an accounting must prove the facts warranting it; a statutory sale by a chargee leaves a mandatory statutory paper trail (notices, auctioneer notifications, advertisements, certificate of sale)
- Uncertified electronic evidence without a certificate under Section 106B of the Evidence Act is inadmissible
- Under Section 90(3) of the Land Act a chargee must elect one remedy; once it elects to sue for the debt it loses the right to exercise its statutory power of sale simultaneously
- An application seeking a different relief or founded on distinct objectives from an earlier application is not res judicata
Court orders
#- 1.The prayer directing the Plaintiff/Respondent to render accounts with respect to the proceeds of the sale of Maisonette Number 4 is dismissed for lack of proof
- 2.The Plaintiff/Respondent is directed to avail standard, updated loan account statements to the Applicants within fourteen (14) days from the date of the Ruling
- 3.The costs of the Application shall be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction over the suit; the application invokes the equitable and inherent jurisdiction of the Court
Relief refused
#Order directing the Plaintiff/Respondent to render accounts of the proceeds of sale of Maisonette Number 4 on LR 1870/11/199
Applicants failed to discharge their evidential burden of proving that the Bank exercised its statutory power of sale; the Bank pleaded it elected to sue for the debt under Section 90(3) of the Land Act and is bound by that election; the electronic evidence was uncertified and inadmissible
Prayer that the Plaintiff be struck out with costs for failure to produce documents within 14 days
Not granted; the Court instead issued a direction to avail updated loan statements, without the striking-out sanction
Costs
The costs of this Application shall be in the cause.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Litigation is not a game of blindman's bufi. When a party invokes the equitable and inherent jurisdiction of this Court to demand an accounting of funds, they must do so armed with cogent, verifiable facts.
A statutory sale by a chargee leaves a mandatory statutory paper trail. There are no 90-day notices, no 40-day auctioneer notifications, no newspaper advertisements, and no Certificate of Sale placed before this Court.
once a lender elects to sue for the outstanding amount, it loses the right to exercise its statutory power of sale simultaneously
a. The prayer directing the Plaintifi/Respondent to render accounts with respect to the proceeds of the sale of Maisonette Number 4 is HEREBY DISMISSED for lack of proof. b. The Plaintifi/Respondent is HEREBY DIRECTED to avail standard, updated loan account statements to the Applicants within fourteen (14) days from the date of this Ruling. c. The costs of this Application shall be in the cause. It is so ordered.
Issues in the judgment
#The judgment does not expressly name the court or the suit/case number, and the delivery date (7th July 2026) postdates the application date (7th May 2025) - the year 2026 may be an error for 2025.
Paragraph numbering is duplicated: the paragraph introducing the res judicata analysis is also numbered 6, the same number as the paragraph framing the issues.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Not stated in the judgment (1st to 4th Defendants/Applicants v Plaintiff/Respondent)", Case Analysis (2026). Notice of Motion dated 7th May, 2025 (suit number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4183/eng@2026-07-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.