RULING OF THE COURT
1. This is an appeal from the decision of the High Court (Ransley J) made in Civil Suit No.3008 of 1984 on 26th January 2005, in which the appellant, Lee G. Muthoga, was ordered to repay to Habib Zutich Finance (K) Ltd, the 1st respondent, money previously paid to the appellant following a Court order which was subsequently set aside. The dispute regarding the money started over thirty years ago.
2. The background to this matter shows that one Mr. Bernard C. Murage who is not privy to these proceeding and the 2nd respondent, Joseph Githongo, borrowed money from the 1st respondent on 18th June 1983 and offered as security their property which was charged to the 1st respondent. The Indian Transfer of Property Act, 1882, (ITPA) (now repealed) applied to the charge. They failed or were unable to honour the repayment terms of the loan. The 1st respondent, Habib Zurich Finance (K) Ltd, in exercise of its statutory power of sale under the charge put the property up for sale…