JUDGMENT OF THE COURT
In this appeal, the following factual statements are uncontroverted. On 5th August, 1996 the appellant entered into a written agreement with the 1st respondent in which the latter advanced to the former Kshs.3,000,000/= as a loan at the interest rate of 22% per annum to be repaid by instalments within one year.
It was a term of the agreement that the loan would be secured by the appellant’s property known as KILIFI/MTWAPA/79 (the suit property). The appellant made only two instalments totaling Kshs.70,000/= and defaulted thereafter. Following this default the 1st respondent’s advocates wrote several letters to the appellant drawing his attention to this fact and demanding that should he fail to settle the loan, allegedly standing at Kshs.101,000,000/=, the suit property would be sold in a public auction. There was an attempt to sell the suit property to the 2nd respondent by a stranger called Quintos Maloba, who curiously succeeded in transferring it to the 2nd res…