[2002] KEHC 756 (KLR)
The court found that the Defendants' defence amounted to mere denials and did not raise any triable issue. The First Defendant had expressly admitted defaulting on the loan in a letter dated 24th March 1998 and proposed a repayment plan that was not honoured. The Plaintiff's evidence, including the bank statement...
Source-derived case information.
- Citation
- [2002] KEHC 756 (KLR)
- Parties
- Plaintiff: Barclays Bank of Kenya Limited; Defendant: Justine Wanza Kitundu t/a Kiwas Crafts; Defendant: Lt. Col. (Rtd) Jonnie Christopher Kitundu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1621 of 2000
- Procedural Posture
- Civil Case / Ruling on Summary Judgment Application
- Outcome
- application for summary judgment granted
- Judges
- CA Otieno
- Legal Topics
- Loan Default, Guarantee Liability, Summary Judgment, Debt Recovery
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Barclays Bank of Kenya Limited
Plaintiff
Justine Wanza Kitundu t/a Kiwas Crafts
Defendant
Lt. Col. (Rtd) Jonnie Christopher Kitundu
Defendant
Procedural Posture
Civil Case / Ruling on Summary Judgment Application
Legal Issues
- 1 Whether the defence raises any triable issue to warrant a full trial.
- 2 Whether the Plaintiff is entitled to summary judgment for the amount claimed against the Defendants jointly and severally.
- 3 Whether the Second Defendant is liable as guarantor for the debt owed by the First Defendant.
Ratio Decidendi
The court found that the Defendants' defence amounted to mere denials and did not raise any triable issue. The First Defendant had expressly admitted defaulting on the loan in a letter dated 24th March 1998 and proposed a repayment plan that was not honoured. The Plaintiff's evidence, including the bank statement and affidavit, was unchallenged. The Second Defendant, as guarantor, did not dispute his liability. The court concluded that there was no defence worth considering and that the Plaintiff was entitled to summary judgment for the amount claimed, together with interest and costs.
Court Disposition
application for summary judgment granted
Orders
- Judgment entered for the Plaintiff against the Defendants jointly and severally for K.shs 1,387,428.15 together with interest at 33% per annum from 1st August 2000 until payment in full.
- Costs awarded to the Plaintiff.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI COMMERCIAL COURTS CIVIL CASE NO. 1621 OF 2000
BARCLAYS BANK OF KENYA LIMITED …………….......….. PLAINTIFF
VERSUS
JUSTINE WANZA KITUNDU T/a KIWAS CRAFTS
LT.COL.(RTD)JONNIE CHRISTOPHER KITUNDU ) ….. DEFENDANTS
R U L I N G
The Plaintiff in a Plaint dated 25th August 2000 is seeking judgment to be entered for it and against the Defendants jointly and severally for K.shs 1,387,428/15 together with interest thereon at the rate of 33% per annum with effect from 1st August 2000 until payment in full. It is also seeking costs. This is the amount the Plaintiff claims is owed to it by the First Defendant in respect of monies advanced to the first Defendant the which payment was guaranteed by the Second Defendant. The defence to the same claim is comprised of denials only.
At the close of the pleadings this application seeking summary judgment was filed on 31. 10. 2001 on grounds that the defence raises no triable issue and that the Debt is admitted vide letter dated 24. 3.1998. It is supported by an affidavit sworn by the Manager at Debt Recovery Unit of the Plaintiff Bank. Several exhibits are annexed to the same affidavit. The application together with affidavit and annextures were served upon the Respondent’s counsel but the same Respondents have not filed any document in opposition to the application. Further although served, they have not attended the hearing and neither have their counsels. The matter therefore proceeded exparte.
I have considered the application. It is merited. There is no defence worth considering as all that the Defendants state in their defence is a mere denial. Further there is clear admission in letter dated 24. 3.1998 in which the Defendant's state as follows inter alia:
“I am admitting that I have seriously defaulted in payment of the owed loan, but the reason is that I have had problems with my client in London. I have been chasing for my money in London for the last 2 years to no avail up to date.
First Defendant then proceeds to give a proposal in that letter as to how he was going to pay the amount outstanding. The Bank statement annexed by the Plaintiff shows that the same proposals were not honoured. The Applicants have made efforts to realise the security but that has not resulted into any success as there were no proper bids for the security (see RM4). The Second Respondent was the guarantor of the same facilities advanced to First Respondent. He has not denied this.
This application succeeds. It is granted as prayed. Costs to the Applicant.
Orders accordingly.
Dated and delivered at Nairobi this 12th day of February 2002.
ONYANGO OTIENO
JUDGE