[2001] KEHC 449 (KLR)
The court found that the plaintiff had established its claim on a balance of probabilities through uncontroverted evidence. The 1st defendant obtained loan and overdraft facilities from the plaintiff bank, and the 2nd and 3rd defendants executed valid personal guarantees. The defendants failed to service the...
Source-derived case information.
- Citation
- [2001] KEHC 449 (KLR)
- Parties
- Plaintiff: Trust Bank Limited; Defendant: Nairobi Alarms Limited; Defendant: Fabouk Jan Mohammed; Defendant: Zayeen Jan Mohammed
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 908 of ??
- Procedural Posture
- Civil Case / Ex Parte Judgment After Hearing Proceeded in Absence of Defendants
- Outcome
- judgment for the plaintiff
- Judges
- T Mbaluto
- Legal Topics
- Loan Default, Guarantee Enforcement, Overdraft Facility, Ex Parte Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Trust Bank Limited
Plaintiff
Nairobi Alarms Limited
Defendant
Fabouk Jan Mohammed
Defendant
Zayeen Jan Mohammed
Defendant
Procedural Posture
Civil Case / Ex Parte Judgment After Hearing Proceeded in Absence of Defendants
Legal Issues
- 1 Whether the defendants are jointly and severally liable to repay the outstanding loan and overdraft facilities to the plaintiff bank.
- 2 Whether the plaintiff has established its claim on a balance of probabilities in the absence of the defendants.
- 3 Whether the guarantees and securities executed by the 2nd and 3rd defendants are enforceable.
Ratio Decidendi
The court found that the plaintiff had established its claim on a balance of probabilities through uncontroverted evidence. The 1st defendant obtained loan and overdraft facilities from the plaintiff bank, and the 2nd and 3rd defendants executed valid personal guarantees. The defendants failed to service the facilities, and the outstanding sum of Shs.4,733,110.10 was due as at 30.3.2000. Despite demand, the defendants did not repay. The court held the defendants jointly and severally liable for the debt, granting judgment as prayed with costs and interest.
Court Disposition
judgment for the plaintiff
Orders
- Judgment entered for the plaintiff against the defendants jointly and severally for Shs.4,733,110.10 with interest at 28% per annum from 31.3.2000 until payment in full.
- Defendants to pay costs of the suit.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI COMMERCIAL COURTS CIVIL CASE NO. 908 OF 2000
TRUST BANK LIMITED …………………………………. PLAINTIFF VERSUS NAIROBI ALARMS LIMITED ……………………. 1ST DEFENDANT FABOUK JAN MOHAMMED …………………….. 2ND DEFENDANT ZAYEEN JAN MOHAMMED …………………….. 3RD DEFENDANT
JUDGMENT
This is a claim for Shs.4,733,110. 10 with interest thereon at 28% per annum from 31. 3.2000 until payment in full.
After the pleadings in the matter had been closed, the suit was fixed for hearing on 29. 5.2001. However when the case was on that date called for hearing, only the plaintiff was present. On the application by the plaintiff’s advocate, it was ordered that the hearing of the suit should proceed ex parte.
The evidence tendered by the plaintiff’s witness, Mr. Philip Maritim (PW1) established that the 3 defendants in this suit were customers of the plaintiff, the 1st defendant being the holder of account number 5410-01 in the plaintiff bank and the 2nd and 3rd defendants being guarantors thereof. Through that account the 1st defendant obtained an overdraft and a loan account totalling Shs.4. 6 million at interest rates of 32% p.a. on the overdraft and 36% p.m. on the loan. As security for the facilities, the 2nd and 3rd defendants signed personal guarantees in favour of the plaintiff. Further securities for the two facilities comprised Deposit Receipts Nos. 1592, 1554, 1546, 1602 and 1616 in the total sum of Shs.4,057,845/55.
PW1’s further evidence was that the defendants did not service the overdraft and loan facilities as agreed and as at 30. 3.2000, there was due and owing by the 3 defendants jointly and severally the sum of Shs.4,733,110/10, which is the amount claimed by the plaintiff against the 3 defendants in this suit. PW1 also stated that despite demand and intention to sue in default having been given, the 3 defendants failed and/or refused to repay the loan facilities.
On the basis of the evidence aforesaid, I am satisfied that the claim by the plaintiff against the defendants has been established on a balance of probabilities. Accordingly, judgment is entered in its favour against the defendants jointly and severally as prayed in the plaint with costs and interest.
Dated at Nairobi this 6th day of June, 2001.
T. MBALUTO
JUDGE