[2019] KEHC 12323 (KLR)
The court found that the plaintiffs had proved, on a balance of probabilities, that they advanced a loan of 300,000 Euros to the defendants for the purchase of construction equipment, supported by documentary evidence including a written agreement and bank transfer slips. The court noted that the defendants failed...
Source-derived case information.
- Citation
- [2019] KEHC 12323 (KLR)
- Parties
- Plaintiff: Hans Juergen Langer; Plaintiff: Accredo AG; Defendant: Joe Musyimi Mutambu; Defendant: Mercbima International (K) Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 303 of 2011
- Procedural Posture
- Civil Suit / Judgment
- Outcome
- Plaintiffs' claim allowed.
- Judges
- WA Okwany
- Legal Topics
- Loan Agreements, Breach of Contract, Security for Loans
- 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
Hans Juergen Langer
Plaintiff
Accredo AG
Plaintiff
Joe Musyimi Mutambu
Defendant
Mercbima International (K) Limited
Defendant
Procedural Posture
Civil Suit / Judgment
Legal Issues
- 1 Whether the plaintiffs advanced a loan of 300,000 Euros to the defendants as alleged.
- 2 Whether the defendants breached the agreement by failing to provide security and repay the loan.
- 3 Whether the defendants' claim that the funds were for consultancy services is valid.
Ratio Decidendi
The court found that the plaintiffs had proved, on a balance of probabilities, that they advanced a loan of 300,000 Euros to the defendants for the purchase of construction equipment, supported by documentary evidence including a written agreement and bank transfer slips. The court noted that the defendants failed to provide the agreed security and did not repay the loan. The defendants' claim that the funds were for consultancy services was not substantiated, as they did not attend the hearing or present evidence. The court therefore held that the plaintiffs were entitled to recover the sum of 285,000 Euros (the amount confirmed as due at trial), together with interest at court rates and...
Court Disposition
Plaintiffs' claim allowed.
Orders
- Payment of the sum of 285,000 Euros to the plaintiffs by the defendants.
- Interest on the sum of 285,000 Euros at court rates from the date of filing suit.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MILIMANI
COMMERCIAL & TAX DIVISION
CIVIL SUIT NO. 303 OF 2011
HANS JUERGEN LANGER..............................................1ST PLAINTIFF
ACCREDO AG...................................................................2ND PLAINTIFF
VERSUS
JOE MUSYIMI MUTAMBU...........................................1ST DEFENDANT
MERCBIMA INTERNATIONAL (K) LIMITED........2ND DEFENDANT
JUDGMENT
1. The 1st Plaintiff herein describes himself as a male adult of sound mind and a director of the 2nd Plaintiff Company while the 2nd plaintiff is a limited liability company incorporated in Liechtenstein and duly registered in Kenya. The plaintiffs sued the defendant herein seeking the following orders:
a) Euros 300,000/=
b) Interest on (a) above at Court rates.
c) Costs of this suit.
d) Any other or further relief that the Court deems fit to grant.
2. The Plaintiffs’ case was that on diverse dates during the month of September, 2010 and at the request of the Defendants, they extended financial facilities to the Defendants for Euros 300,000 to enable the Defendants purchase construction equipment. The Plaintiffs state that it was an expression term of their agreement that construction equipment would be registered in the Plaintiffs’ name and title documents given to the Plaintiffs as security for the monies advanced to the Defendants.
3. The Plaintiffs’ case is that in breach of the said agreement, the Defendants not only failed to provide the security documents aforesaid but also failed to repay the monies advanced to them thereby precipitating the filing of this case. In their joint statement of defence filed in Court on 11th August 2011, the Defendants deny having received any money from the Plaintiffs and contend that any money received by them was in respect to the payment for consultancy services that they provided to the Plaintiffs.
4. At the hearing of the case the 1st Plaintiff testified and adopted his witness statement filed on 14th July, 2011 as his evidence before the Court. He also produced the documents contained in the Plaintiffs’ list of documents dated 4th July, 2011 as exhibits during the hearing.
5. Neither the Defendants, nor their advocates on record attended Court for the hearing on 18th June, 2019 despite having been duly served with the hearing notice.
6. I have considered the pleadings filed herein and the Plaintiffs’ case as narrated by the 1st Plaintiff who also produced a total of 7 documents as exhibits during the hearing. A perusal at Plaintiffs Exhibit No. 6 shows that indeed, they agreed to lend the Defendants the sum of 300,000 Euros to enable the Defendants purchase construction equipment. I further note that the repayment period was stated to be within one (1) year and that the equipment purchased was to be registered in the name of the plaintiffs.
7. I have also perused the swift transfer bank slips/advice that were produced as Plaintiffs’ Exhibits 1-4 in support of the Plaintiffs claim that they wired the total sum of 300,000 Euros to the Defendants accounts. At the hearing of the case however, the 1st Plaintiff testified that the exact amount due to the Plaintiffs is 285,000 Euros. I am satisfied that the Plaintiffs proved their case against the Defendants on a balance of probabilities.
8. It is my finding that even though the Defendants claimed that the payments made to them by the Plaintiff were in respect to a consultancy agreement arrived at between the Plaintiffs and the 1st Defendant, the defendants did not attend Court on the hearing date to prove this claim.
9. Consequently and having found that the Plaintiff’s case was proved on a balance of probabilities, I allow their claim in the following terms:
a) Payment of the sum of 285,000 Euros.
b) Interest on (a) above at Court rates from the date of filing this suit.
c) Costs of the case.
Dated, Signed and delivered in open court at Nairobi on this 25th day of July, 2019.
W. A. OKWANY
JUDGE
In the presence of:
Mr. Mwangi for Ndegwa for the plaintiff.
No appearance for defendant
Court Assistant - Ali