Not stated in the judgment (1st to 4th Defendants/Applicants v Plaintiff/Respondent)

Reference Number 1870/11/199 dated 22nd May 2009 and avail updated loan statements to the Applicants. b) The above-mentioned information and/or documents be produced by the Plaintifi/ Respondent within fourteen (14) days or such other time as the Court may determine failure to which the Plaint be struck out with costs. c) The Court be pleased to issue any other order that it deems fit. d) The costs of this application be borne by the Plaintifi/Respondent. 3. The Applicants' core argument is that the Plaintifi Bank secretly realized the charged property, evidenced by the Bank withdrawing the suit against the 5th and 6th Defendants (the registered owners) in February, 2022. The Applicants profier photographs, Google Maps screengrabs, and a CR-12 showing that third parties now occupy the premises and hold the management shares. 4. The Plaintifi Bank vehemently opposes the Application. It asserts that it elected to sue for the debt under Section 90(3)(a) of the Land Act, thereby extinguishing its statutory power of sale. The Bank further contends that the demand for statements is res judicata following a similar application in May, 2022, and that the Applicants' electronic evidence is inadmissible. Issues for Determination 5. The Court has considered the Application, the response, the written submissions and the oral highlights by Counsel for the parties. The Court frames two issues for determination as follows: a. Is the Application barred by the doctrine of res judicata? b. Have the Applicants proved that the Plaintifi exercised its statutory power of sale to warrant an order for the rendering of accounts? Analysis and Determination 6. The Application before the Court calls for exercise of discretion. The Court therefore has to be persuaded that the orders sought are deserving, as they do not lie as of right. (a) Is the Application barred by the doctrine of res judicata? 6. The Plaintifi argues that an order for the supply of loan statements was already granted in September, 2022. Section 7 of the Civil Procedure Act restricts parties from re-litigating matters directly and substantially in issue in a former suit or application. 7. However, context is everything. The 2022 application sought historical statements to calculate interest rate discrepancies. The instant Application seeks statements strictly to trace the proceeds of an alleged sale. The foundational objectives are distinct. The Court finds that this Application is not res judicata. (b) Have the Applicants proved that the Plaintifi exercised its statutory power of sale to warrant an order for the rendering of accounts? 8. The Applicants fail on their primary prayer for a simple reason: they have failed to discharge their evidential burden. He who alleges must prove. 9. The Applicants invite this Court to infer a statutory sale based on circumstantial evidence: photographs of a parked car, a Google Maps pin, and a CR-12 document showing a change in the management company's shareholding. This is insuficient. A statutory sale by a chargee leaves a https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4183/eng@2026-07-07 2

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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. 10. Furthermore, the photographs and screengrabs presented by the Applicants lack the mandatory certificate under Section 106B of the Evidence Act. As the Court of Appeal decisively held in County Assembly of Kisumu & 2 others v Kisumu County Assembly Service Board & 6 others [2015] KECA 397 (KLR), uncertified electronic evidence is incurably defective and inadmissible. 11. Crucially, the Plaintifi Bank has formally pleaded that it elected to sue for the debt rather than sell the property. Section 90(3) of the Land Act provides a menu of remedies. A chargee must choose one. As established in David Karanja Kamau v Harrison Wambugu Gaita & another [2020] KEHC 2591 (KLR), once a lender elects to sue for the outstanding amount, it loses the right to exercise its statutory power of sale simultaneously. 12. The Bank is bound by its election. This Court cannot issue a mandatory injunction compelling the Bank to render accounts for a sale that it legally denies conducting. In any event this Court is not persuaded that suficient proof of the alleged sale has been placed before the Court. If such a sale did occur, there is no proof before the Court by way of an Afidavit, that it occurred at the hands of the Bank. The property could well have been disposed of through a private treaty by the 5th and 6th Defendants themselves. The prayer for an accounting fails. 13. While the prayer for an accounting of sale proceeds collapses, the wheels of justice demand transparency in the substantive trial. The Applicants are entitled to know the exact, updated quantum of the debt they are defending against. 14. This Court agrees with the position that withholding updated standard loan statements hinders the Applicants' ability to prepare their defence. A trial by ambush has no place in a modern commercial Court. 15. The Application thus succeeds but only in part. 16. As to costs, the same lie at the discretion of this Court and ordinarily follow the event. The Court is keen to have parties engage through a trial and not through interlocutory applications. The Court in exercise of its discretion makes an order that the costs of the application will be in the cause. Determination 17. 18. The 1st to 4th Defendants/Applicants application dated 7th May, 2025 is partially successful. It is allowed in the following terms: 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. DATED, SIGNED AND DELIVERED AT MILIMANI THIS 07TH DAY OF JULY, 2026 NJOROGE BENJAMIN K. JUDGE In the presence of: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4183/eng@2026-07-07 3

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Mr. Mbaji for the 1st to 4th Defendants/Applicants. Mr. Janjo David for the Plaintifi/Respondent. Mr. John Paul - Court Assistant Page 3 of 8 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4183/eng@2026-07-07 4

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