[2000] KEHC 134 (KLR)
The court found that the defendant did not deny receiving the loan or the plaintiff's right to realise the security. The only issue raised was the alleged undervaluation of the vehicle, which the court held could be pursued separately and did not constitute a defence to the plaintiff's claim for the loan balance....
Source-derived case information.
- Citation
- [2000] KEHC 134 (KLR)
- Parties
- Plaintiff: Giro Commercial Bank Limited; Defendant: Waseem Altaf Khawaja
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1025 of 1999
- Procedural Posture
- Civil Suit / Summary Judgment Application
- Outcome
- summary judgment granted for the plaintiff; defence, counterclaim, and set off dismissed
- Judges
- JK Mulwa
- Legal Topics
- Summary Judgment, Loan Recovery, Security Realisation, Counter Claims, Set Off, Valuation of Security
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Giro Commercial Bank Limited
Plaintiff
Waseem Altaf Khawaja
Defendant
Procedural Posture
Civil Suit / Summary Judgment Application
Legal Issues
- 1 Whether the defence, counterclaim, and set off raised by the defendant disclose any triable issues to defeat the plaintiff's claim for summary judgment.
- 2 Whether the plaintiff is entitled to summary judgment for the balance of the loan after realisation of the security.
- 3 Whether the defendant's allegations of undervaluation and unconscionable interest constitute a valid defence or counterclaim.
Ratio Decidendi
The court found that the defendant did not deny receiving the loan or the plaintiff's right to realise the security. The only issue raised was the alleged undervaluation of the vehicle, which the court held could be pursued separately and did not constitute a defence to the plaintiff's claim for the loan balance. The counterclaim and set off, being based solely on the undervaluation allegation, could not stand. The defence, counterclaim, and set off did not raise any triable issues. Accordingly, the court allowed the plaintiff's application for summary judgment as prayed.
Court Disposition
summary judgment granted for the plaintiff; defence, counterclaim, and set off dismissed
Orders
- Plaintiff's application for summary judgment is allowed as prayed in prayers 1 and 2 of the Notice of Motion.
- Defence, counterclaim, and set off are dismissed.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT NAIROBI
MILIMANI LAW COURTS
civ suit 1025 of 99
GIRO COMMERCIAL BANK LIMITED…………………..PLAINTIFF/APPLICANT
-VERSUS
WASEEM ALTAF KHAWAJA………………………DEFENDANT/RESPONDENT
JUDGMENT
The Plaintiff is asking for a Summary Judgement following the suit filed on 4. 8.99 in which the Plaintiff is asking for a Judgement together with interest and costs as contained in paragraph 9 of the plaint. The Defendant filed a defence and counter claim and a set off. In the present application the plaintiff is urging the Court to grant the application on the grounds that the defence filed is no defence at all to the claim and the counter claim and set off are sham as the plaintiff did not owe the defendant any money. In support of its claim the plaintiff has explained through the affidavit of Mr. Sastry, the Chief Manager, how the defendant was advanced the sum of shs.3. 5 million. On failure to repay the whole amount the Plaintiff realised the security which was a motor vehicle. The present suit is for the balance. The defence alleges that the sale of the vehicle was fraudulent as the vehicle was sold far below its value. The defendant in the counter claim and set off is asking for the balance of what he claims to have been the value of the vehicle and what the sale actually fetched.
The defendant has not denied that he was advanced the money claimed by the plaintiff. The defence dwells on the undervaluation of the vehicle later sold and the unconscionable interest charged. In the counter claim he refers to a waiver of the interest referring to a letter dated 1. 5.99 from the Managing Director of the Bank.
These claims put up by the Defendant do not amount to a defence to the claim raised by the Plaintiff. The Defendant does not deny that the Defendant had the right to sell the vehicle, but only questions the value given to the vehicle in which case he can pursue the issue separately of this suit. The counter claim can not stand as it is based on the claim of undervaluation. Other than this claim which as I have said can be pursued separately the plaintiff does not owe the defendant any money which can be counter claimed and used as a set off. The defence as it stands together with the counter claim and the set off do not raise any triable issues.
The application is allowed as prayed for in prayers 1 and 2 of the Notice of Motion.
Dated this 3rd day of April, 2000.
KASANGA MULWA
JUDGE