[2004] KEHC 2217 (KLR)
The court found that the plaintiff had proved its case on a balance of probabilities. The evidence showed the defendant was advanced a loan, failed to repay as agreed, and that the plaintiff had issued statutory notices and attempted to realize the securities without success. The defendant did not attend court to...
Source-derived case information.
- Citation
- [2004] KEHC 2217 (KLR)
- Parties
- Plaintiff: National Bank of Kenya Ltd; Defendant: Gideon Ondieki Maranga
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- ? 103 of 1996
- Procedural Posture
- Civil Case / Judgment
- Outcome
- Judgment for the plaintiff as prayed in the plaint.
- Legal Topics
- Loan Default, Secured Transactions, Statutory Power of Sale, Bank Interest, Debt Recovery
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
National Bank of Kenya Ltd
Plaintiff
Gideon Ondieki Maranga
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the defendant is indebted to the plaintiff in the sum claimed as at 31st January, 1996.
- 2 Whether the plaintiff is entitled to judgment for the outstanding loan balance, interest, and costs.
- 3 Whether the suit was premature for failure to exhaust statutory power of sale remedies.
Ratio Decidendi
The court found that the plaintiff had proved its case on a balance of probabilities. The evidence showed the defendant was advanced a loan, failed to repay as agreed, and that the plaintiff had issued statutory notices and attempted to realize the securities without success. The defendant did not attend court to challenge the plaintiff's evidence. The court held that the plaintiff was entitled to judgment for the sum claimed, interest, and costs as prayed in the plaint.
Court Disposition
Judgment for the plaintiff as prayed in the plaint.
Orders
- Judgment entered for the plaintiff against the defendant for Kshs.1,724,477.45 as at 31st January, 1996.
- Plaintiff awarded bank charges and interest at bank rates calculated on daily balances at monthly rests from 1st February, 1996 until payment in full.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL CASE NO. 103 OF 1996
NATIONAL BANK OF KENYA LTD………………..……….PLAINTIFF
VERSUS
GIDEON ONDIEKI MARANGA……………………………DEFENDANT
JUDGMENT
The Plaintiff, by a plaint dated 22nd February, 1996 commenced suit against the Defendant seeking judgment for Kshs.1,724,477. 45 due and owing by the Defendant to the plaintiff as at 31st January, 1996 being the balance of money and/or over draft allowed and paid to the use of the Defendant by the Plaintiff as Bankers for the Defendant at the Defendant’s request at Nakuru. The Plaintiff also prayed for bank charges and interest at Bank rates of interest calculated on daily balances at monthly rests from 1st February, 1996 until payment in full plus costs and interest at court rates.
The plaint was filed by Jones & Jones Advocates and Konosi & Company Advocates entered appearance for the Defendant on 25th April, 1996 and filed a defence on 13th May, 1996. The Defendant, in his statement of defence, denied owing the plaintiff the sum of Kshs.1,724,477. 45 and averred that he was granted a loan of Kshs.900,000/- which was secured by a legal charge over Titles Nos. MAJOGE/BOMBABA/1821 and 2073 and had been making regular payments. He therefore stated that the suit was premature and ought to be stayed until the plaintiff had first exercised its statutory power of sale over the two aforesaid properties.
On 29th November, 2000 M/S Muthanwa & Company Advocates filed a Notice of change of advocates for the plaintiff in place of Jones & Jones Advocates. The matter was heard on 22nd January, 2004 and the plaintiff called one witness, Mr. Joshua Nauwankas, a Debt Recoveries Officer based at the plaintiff’s Nakuru Branch. He testified that the Defendant was a customer of the plaintiff who opened a current account with the bank in January, 1993 and applied for a loan in March of that year.
A loan of Kshs.900,000/- was granted to the Defendant and was secured by a first charge on the Defendant’s 2 properties as aforesaid.
Evidence produced during the trial showed that he drew out the full loan sum in March and April, 1993 but he did not begin his loan repayment until 30th October, 1993. By the time he made the last payment on 30th May, 1995 he had repaid a total of Kshs.318,181/-.
The Plaintiff sent a statutory notice of sale of the charged properties on 31/1/95 and later instructed M/S Pave Auctioneers to realise the securities. The auctioneers conducted an auction of the properties but there were no bidders as the securities were rural properties.
The Plaintiff attached the Defendant’s motor vehicle registration number KUA 480 which was sold for Kshs.56,000/- and only Kshs.30,181,60 was credited into the loan account. The witness told the court that as at the date of the hearing the amount due and owing by the defendant to the Plaintiff had risen from Kshs.1,724,477. 45 to Kshs.7,735,413. 85.
The Defendant did not attend court to defend himself. The Plaintiff’s evidence is therefore unchallenged. I am satisfied that the Plaintiff has proved its case on a balance of probabilities and therefore I enter judgment for the plaintiff against the Defendant as prayed in the plaint.
DATED, SIGNED & DELIVERED at Nakuru this 23rd day of March 2004.
DANIEL K. MUSINGA
AG. JUDGE
23/3/2004