[2012] KEHC 4942 (KLR)
The court found that the plaintiff had established, through unrebutted oral and documentary evidence, that the defendant was advanced a loan facility of Kshs.250,000 secured by a charge over land, and that the defendant failed to make any repayments. The plaintiff's attempts to realize the security through statutory...
Source-derived case information.
- Citation
- [2012] KEHC 4942 (KLR)
- Parties
- Plaintiff: National Bank of Kenya; Defendant: James Makana Ogamba
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 256 of 1996
- Procedural Posture
- Civil Case / Judgment
- Outcome
- judgment for the plaintiff
- Judges
- SP Ouko
- Legal Topics
- Loan Default, Recovery of Debt, Statutory Power of Sale, Secured Transactions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
National Bank of Kenya
Plaintiff
James Makana Ogamba
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the defendant is indebted to the plaintiff for the outstanding overdraft facility and accrued interest.
- 2 Whether the plaintiff was entitled to recover the outstanding debt by way of this suit despite the failure to realize the security through statutory sale.
- 3 Whether the defendant made any repayments towards the loan facility.
Ratio Decidendi
The court found that the plaintiff had established, through unrebutted oral and documentary evidence, that the defendant was advanced a loan facility of Kshs.250,000 secured by a charge over land, and that the defendant failed to make any repayments. The plaintiff's attempts to realize the security through statutory power of sale failed as no bids were received. The defendant, having been served and failing to attend or adduce evidence, left the plaintiff's case unchallenged. The court held that the plaintiff was entitled to judgment for the outstanding sum, interest, and costs as claimed in the plaint.
Court Disposition
judgment for the plaintiff
Orders
- Judgment entered for the plaintiff as per paragraphs (a), (b), and (c) of the plaint dated 17th May 1996 with costs.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL CASE NO.256 OF 1996
NATIONAL BANK OF KENYA……………………………………………PLAINTIFF
VERSUS
JAMES MAKANA OGAMBA…………………………………………DEFENDANT
JUDGMENT
The plaintiff, National Bank of Kenya brought this action to recover from the defendant, James Makana Ogamba Kshs.1,505,411. 65 being the balance overdraft facility extended to him and outstanding as at the time of the filing of the suit on 20th May 1995. The plaintiff also seeks bank charges, interest and costs of the suit.
The defendant in his statement of defense expressly denied the claim and asserted that the suit was brought prematurely as the plaintiff ought to have recovered any outstanding debt by selling the security. The hearing commenced way back on 26th September 2005 before Apondi, J but had to be stood over generally. After several attempts to hear the matter failed, it eventually started afresh before me on 8th November 2011. The defendant having been duly served through his advocate on record, failed to attend court when the hearing was scheduled to start. The matter therefore, preceded exparte.
It was the plaintiff’s case as calculated by Hannah Wangari Karanja, of Nakuru Branch, Recoveries Department that the defendant opened account number 301019029 with the plaintiff on 13th October 1989. Subsequently he applied for a banking facility in the sum of Kshs.550,000/=. The bank, instead, disturbed Kshs.250,000/= to his account on 2nd May, 1992. The defendant accepted this upon a charge of his parcel of land CENTRAL KITUTU/IKURUMA/498. At the time of disbarment, the defendant’s account was overdrawn by Kshs.252,697. 05. The defendant issued nine cheques between October 1991 and 22nd June 1993 totaling to Kshs.200,000/=. It is the plaintiff’s case that the defendant made no attempt to repay the loan which stood at Kshs.5,403,122. 75 as at 17th April 2004.
Demand letters issued to the defendant were not acted upon forcing the plaintiff to issue a statutory notice and a redemption notice both of which were ignored by the defendant. The firm of Pave Auctioneers was instructed. They in turn issued a notification of sale and the property advertised for sale. No bids were received hence the suit.
The averments in the plaint and the oral evidence presented at the trial have not been rebutted. There is sufficient evidence that the plaintiff disbursed Kshs.250,000/= in 1992. Todate, over twenty years later no evidence of repayment of a single cent has been adduced. In view of the interest rate chargeable, the initial figure has greatly escalated. The plaintiff’s attempt to realize the security by exercising its statutory power of sale failed as no bids were received.
For these reasons, I enter judgment in terms of paragraphs (a), (b) and (c) of the plaint dated 17th May 1996 with costs.
Dated, Signed and Delivered at Nakuru this 23rd day of January, 2012.
W. OUKO
JUDGE