[2005] KEHC 801 (KLR)
The court found that the plaintiff had provided uncontroverted evidence of the defendant's acceptance of the loan facility, the existence of the charge, and the defendant's indebtedness. The defendant failed to file any opposition or attend the hearing, and the defence raised was unsupported by evidence. The court...
Source-derived case information.
- Citation
- [2005] KEHC 801 (KLR)
- Parties
- Plaintiff: Co-operative Merchant Bank Ltd; Defendant: Isaac Wachira Migwi t/a Migwi & Brothers General Construction
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 584 of 2002
- Procedural Posture
- Civil Suit / Ruling on Application for Summary Judgment
- Outcome
- judgment for the plaintiff
- Judges
- MM Kasango
- Legal Topics
- Loan Facility Default, Summary Judgment, Secured Transactions, Enforcement of Security
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Co-operative Merchant Bank Ltd
Plaintiff
Isaac Wachira Migwi t/a Migwi & Brothers General Construction
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Summary Judgment
Legal Issues
- 1 Whether the defendant is indebted to the plaintiff under the loan facility agreement.
- 2 Whether the defendant signed and accepted the letter of offer for the facility.
- 3 Whether the plaintiff is privy to the contract with the defendant after the change of name.
Ratio Decidendi
The court found that the plaintiff had provided uncontroverted evidence of the defendant's acceptance of the loan facility, the existence of the charge, and the defendant's indebtedness. The defendant failed to file any opposition or attend the hearing, and the defence raised was unsupported by evidence. The court held that the defence was a sham and did not raise any triable issues, thus summary judgment was appropriate in favour of the plaintiff for the amount claimed in the plaint.
Court Disposition
judgment for the plaintiff
Orders
- Judgment is entered in favour of the plaintiff as prayed in the plaint.
- The plaintiff is granted costs of the application dated 19th September 2005.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
Civil suit 584 of 2002
CO-OPERATIVE MERCHANT BANK LTD………….…...........................................………...……PLAINTIFF
VERSUS
ISAAC WACHIRA MIGWIT/A MIGWI & BROTHERS GENERALCONSTRUCTION………..DEFENDANT
RULING
The defendant by a letter dated 17th October 1995 was granted a facility of kshs 200, 000. At that time the plaintiff was trading under the name and style of ‘Cooperative Finance Limited.’ The defendant signed and accepted the offer in the aforesaid letter. The plaintiff, on or about 26th January 1996, changed its name to ‘Co-operative Merchant Bank Ltd.’
The defendant charged his parcel of land LAIKIPIA/SALAMA MURUKU BLOCK 4/3/42 (PESI) to secure the aforesaid facility. The defendant defaulted in the repayment of the aforesaid facility and consequently the plaintiff attempted to realize its security. Despite many attempts, to so realize that security, which was evidence by the plaintiff’s exhibit MWB-5; the plaintiff could not sell the security and resulted in filing the present suit. The plaintiff’s present application seeks for summary judgment to be entered in its favour, on the ground that the defendant’s defence is a sham, and does not raise any triable issues to warrant the suit to go for hearing. The application is brought under Order XXXV Rule 1(1) and (2) of the Civil Procedure Rules.
The defendant defence pleads as follows: - · That the defendant did not accept nor sign the letter of offer; · That the plaintiff is not privy to the defendant’s contract with the former entity; · That the plaintiff failed to pursue its remedy under the charge; · That the plaintiff did not disburse any funds to the defendant; · That the defendant denies indebtedness to the plaintiff.
In regard to the first issue, the plaintiff exhibited the letter after which clearly had the defendant’s signature appended thereof. In regard to the second issue the plaintiff exhibited the charge, which was executed by the defendant and Co-operative Finance Ltd, which subsequently changes its name to Co-operative Merchant Bank, the plaintiff hereof. In regard to the third issue the plaintiff annexed its application evidence of many attempts made, unsuccessfully, to sell the charged property. The fourth and fifth issue meets its answer in the annexed statements of account, which show the defendant’s indebtedness.
I have examined the evidence presented by the plaintiff. That evidence was uncontroverted by the defendant, who even though was served, failed to file any papers in opposition to the plaintiff’s application and failed to attend the hearing of that application. The evidence presented before court shows that the plaintiffs application dated 19th September 2005 is merited and indeed does prove that the defendant’s defence is a sham.
The orders of the court are: - (1) That judgment is entered in favour of the plaintiff as prayed in the plaint. (2) The plaintiff is granted costs of the application dated 19th September 2005.
Dated and delivered 11th November 2005.
MARY KASANGO
JUDGE