[2015] KEHC 6899 (KLR)
The court found that the defendant was not entitled to charge penalty interest, interest on arrears, or default charges as these were not lawfully provided for in the contract. The variations of interest rates by the defendant were unlawful where they exceeded 18% and 19% per annum for the first and second charges,...
Source-derived case information.
- Citation
- [2015] KEHC 6899 (KLR)
- Parties
- Plaintiff: Francis Joseph Kamau Ichatha; Defendant: Housing Finance Company of Kenya Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 414 of 2014
- Procedural Posture
- Civil Suit / Post Judgment Orders Following Accounting Report
- Outcome
- Judgment for the plaintiff with monetary award, interest, and costs.
- Judges
- GV Odunga
- Legal Topics
- Loan Interest Overcharge, Contractual Interest Variation, Accounting of Parties, Banking Act Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Joseph Kamau Ichatha
Plaintiff
Housing Finance Company of Kenya Limited
Defendant
Procedural Posture
Civil Suit / Post Judgment Orders Following Accounting Report
Legal Issues
- 1 Whether the defendant was entitled to charge penalty interest, interest on arrears, or default charges.
- 2 Whether the variations of interest rates by the defendant were lawful under the contract and applicable law.
- 3 Whether the defendant's calculations of the amounts due were accurate and free from error.
Ratio Decidendi
The court found that the defendant was not entitled to charge penalty interest, interest on arrears, or default charges as these were not lawfully provided for in the contract. The variations of interest rates by the defendant were unlawful where they exceeded 18% and 19% per annum for the first and second charges, respectively. The defendant's calculations were not free from error, as confirmed by the independent accounting report agreed upon by both parties' accountants and the appointed umpire. The report established that the plaintiff had been overcharged interest by Kshs 14,451,355.59, resulting in a net amount due to the plaintiff of Kshs 8,813,820.89. Accordingly, judgment was...
Court Disposition
Judgment for the plaintiff with monetary award, interest, and costs.
Orders
- Judgment entered for the plaintiff against the defendant in the sum of Kshs 8,813,820.89.
- The sum shall accrue interest at court rate from the date of judgment until payment in full.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
(COMMERCIAL & ADMIRAKLTY DIVISON)
CIVIL SUIT 414 OF 2004
FRANCIS JOSEPH KAMAU ICHATHA..............................PLAINTIFF
VERSUS
HOUSING FINANCE COMPANY OF KENYA LIMITED.......DEFENDANT
ORDER
1. On 4th August, 2014, this Court delivered its judgement in this case in which it found that the Defendant was not entitled to ‘penalty interest’, interest on arrears’ or ‘default charges’; that the variations of the rates of interest to the plaintiff’s detriment were unlawful and that any application of interest rate in excess of 18% and 19% per annum with respect to the first and second charges were unlawful; that the Defendant’s calculations were not free from error; that the Defendant was not bound to only realize the charged property as it was at liberty to extend indulgence to the plaintiff without compromising its rights under the charges in question; that the Defendant was properly entitled to any lawfully due charges based on the contractual documents; that the breach of the provisions of the Banking Act had not been proved to the required standards.
2. Consequently this court directed the parties herein to agree on and appoint an independent accountant to take accounts between the parties herein and file his report within 45 days from the date of his appointment. In default of such agreement each party was directed to appoint an accountant and the two appointed accountants were to appoint an umpire and the three were to go through the documents in possession of the parties and prepare a report for filing in this matter within 45 days of the appointment of the umpire.
3. Pursuant to the foregoing the Plaintiff appointed Interest Rates Advisory Centre (IRAC) while the Defendant appointed PKF Kenya as their respective accountants. The two accountants appointed Muchekehu Nyakang’o & Co as the umpire.
4. The said umpire did file its report before this Court on 15th January, 2015 which report was duly signed by the accountants for the respective parties. According to the said report, the findings were discussed and agreed to by the accountants representing both parties.
5. In the said report it was found that the interest on loan was overcharged by Kshs 14,451,355. 59 and consequently the amount due to the borrower (read the plaintiff) is Kshs 8,813,820. 89.
6. That being the position, judgement is hereby entered for the plaintiff against the Defendant in the said sum of Kshs 8,813,820. 89. The said sum shall accrue interests at court rate from the date of the judgement herein till payment in full. The costs of this suit are awarded to the plaintiff to be paid by the Defendant.
7. It is so ordered.
Dated at Nairobi this 2nd February, 2015
G V ODUNGA
JUDGE
Delivered in the presence of:
The Plaintiff in person
Mr Wetangula for Mr Ayisi for the Defendant
Cc Patricia