[2018] KEHC 10198 (KLR)
The court found that the plaintiff's case was uncontroverted, as the defendants failed to file any defence or participate in the proceedings. The plaintiff produced documentary evidence establishing the existence of the asset finance and hire purchase contract, the amount advanced, the default by the 1st defendant,...
Source-derived case information.
- Citation
- [2018] KEHC 10198 (KLR)
- Parties
- Plaintiff: Fina Bank Limited; Defendant: Coast Cereals Kenya Ltd; Defendant: Samuel Kabuya Muigai; Defendant: Francis Nderitu Michuri; Defendant: Rahab Wangechi Nguyo; Defendant: Alice Muthoni Muchiri
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 712 of 2012
- Procedural Posture
- Civil Case / Judgment After Formal Proof
- Outcome
- judgment for the plaintiff
- Judges
- MM Kasango
- Legal Topics
- Asset Finance, Hire Purchase Contracts, Personal Guarantees, Loan Default, Joint and Several Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fina Bank Limited
Plaintiff
Coast Cereals Kenya Ltd
Defendant
Samuel Kabuya Muigai
Defendant
Francis Nderitu Michuri
Defendant
Rahab Wangechi Nguyo
Defendant
Alice Muthoni Muchiri
Defendant
Procedural Posture
Civil Case / Judgment After Formal Proof
Legal Issues
- 1 Whether the defendants are jointly and severally liable for the outstanding loan amount under the asset finance and hire purchase contract.
- 2 Whether the plaintiff has proved its claim on a balance of probabilities.
Ratio Decidendi
The court found that the plaintiff's case was uncontroverted, as the defendants failed to file any defence or participate in the proceedings. The plaintiff produced documentary evidence establishing the existence of the asset finance and hire purchase contract, the amount advanced, the default by the 1st defendant, and the personal guarantees executed by the 2nd to 5th defendants. The court was satisfied that the plaintiff had proved its claim on a balance of probabilities and that the defendants were jointly and severally liable for the outstanding sum. The court therefore entered judgment for the plaintiff for the claimed amount plus interest and costs.
Court Disposition
judgment for the plaintiff
Orders
- Judgment entered for the plaintiff against all defendants jointly and severally for Ksh 8,156,390.95 plus interest at court rate from the date of filing until payment in full.
- All defendants to pay the plaintiff's costs of the suit.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND ADMIRALTY DIVISION
CIVIL CASE NO. 712 OF 2012
FINA BANK LIMITED .................................................................PLAINTIFF
-VERSUS-
COAST CEREALS KENYA LTD..................................... 1ST DEFENDANT
SAMUEL KABUYA MUIGAI......................................... 2ND DEFENDANT
FRANCIS NDERITU MICHURI......................................3RD DEFENDANT
RAHAB WANGECHI NGUYO.........................................4TH DEFENDANT
ALICE MUTHONI MUCHIRI.........................................5TH DEFENDANT
JUDGMENT
1. The plaintiff filed this suit against the five defendants on 15th November 2012. The defendants were served with the court processes but failed to file Memorandum of Appearance and a defence within the prescribed period. At the request of the plaintiff, interlocutory judgment was entered on 21st May 2018 and this case proceeded by way of formal proof before me on 18th July 2018.
2. The uncontroverted case against the defendants is that the parties entered into an asset finance and hire purchase contract for the 1st defendant to acquire Mercedez Benz Actross Prime Mover. The 1st defendant was financed in that regard with the sum of Ksh. 5, 346,360 which was secured by personal guarantees of the 2nd to the 5th defendants.
3. It is the plaintiff’s case that the 1st defendant defaulted in the payment of the agreed instalments and the amount now outstanding and owed to the plaintiff is Ksh 8,156,390. 95 plus interest until payment in full.
4. The plaintiff’s witness in evidence stated that when the default of the payment of the instalments occured, it gave instructions to Regent Auctioneers to reposes the Prime Mover but that they were unsuccessful because they could not trace it.
5. The plaintiff’s evidence was uncontroverted and it was supported by documentary evidence. The plaintiff therefore has proved its case on a balance of probability that the defendants are indebted to it.
6. Accordingly, I enter judgment for the plaintiff as follows:
a. There shall be judgment for the plaintiff against all the defendants jointly and severally for Ksh 8,156,390. 95 plus interest at court rate from the date of filing this suit until payment in full.
b. All the defendants shall pay the plaintiff’s cost in this suit.
c. It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI this30thday of October,2018.
MARY KASANGO
JUDGE
Judgment read and delivered in open court in the presence of:
Court Assistant....................Sophie
........................................... for the Plaintiff
........................................... for the Defendants
MARY KASANGO
JUDGE