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Court of AppealDismissedCivil Appeal No. 153 of 2017· [2020] KECA 833 (KLR)

Housing Finance Company of Kenya Limited v Scholarstica Nyaguthii Muturi & another [2020] KECA 833 (KLR)

Court of Appeal of Kenya
3 April 2020
4,330 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled that a bank which recovered Shs.18 million on a Shs.3 million loan broke the law and must refund the excess to the borrower.

What this practically means

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Executive summary

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The Court of Appeal (Makhandia, Kiage & Kantai, JJ.A.) dismissed an appeal by Housing Finance Company of Kenya Limited against a High Court judgment (Ogola, J., 17th February 2017) in favour of its borrower, Scholarstica Nyaguthii Muturi. The 1st respondent had borrowed Shs.3,000,000 in 1998 secured by two Kiambu properties; after default one property was discharged and sold, and the remaining property was sold in October 2011 by private treaty to the 2nd respondent for Shs.16,000,000. The trial judge, invoking the in duplum rule and section 44A of the Banking Act, declared the loan fully repaid, ordered the appellant to refund the Shs.16,000,000 auction proceeds with interest at 26% from the auction date, and found the 2nd purchaser's title valid. The appellant's eight grounds contended, among other things, that its accounts were properly kept, that the in duplum rule did not apply, and that the refund was an unpleaded remedy. As a first appellate court the Court re-evaluated the evidence under the Selle v Associated Motor Boat principles. It held that section 44A of the Banking Act applies retrospectively and caps recovery on a non-performing loan at the principal plus interest not exceeding it; the appellant had recovered Shs.18,000,000 on a Shs.3,000,000 loan as its own witness confirmed, acting contrary to law. It endorsed the trial judge's finding that a bank failing to keep proper records cannot make a calculable claim against a borrower, and applied Odd Jobs v Mubea to hold that the refund remedy, though arguably not expressly prayed for, was properly within the issues left to the court. The appeal was dismissed with costs to the 1st respondent.

Key legal issues

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01

Statutory cap on recovery of interest on non-performing loans under section 44A of the Banking Act

Holding

The appellant, having recovered Shs.18,000,000 on an original loan of Shs.3,000,000, acted contrary to law; section 44A applies retrospectively and caps the maximum recoverable amount.

Reasoning

Section 44A(2) limits recovery on a non-performing loan to the principal owing when the loan became non-performing, interest not exceeding that principal, and recovery expenses. Section 44A(6) gives the provision retrospective effect over pre-existing loans. By the time the suit property was sold the appellant had recovered Shs.18,000,000 on a Shs.3,000,000 loan, three times over what was due, as confirmed by its own witness. It was therefore barred from proceeding as it did and the grounds on this issue failed.

p. 4
02

Duty of a bank to keep proper records of account

Holding

Where a bank cannot explain unexplained credits and fails to keep proper records, its claim is guesswork and it is disqualified from claiming against the borrower.

Reasoning

The trial judge found the appellant had applied varying interest regimes (26% to 34%), did not keep proper records, and wrote off sums between Shs.2,478,618.65 and Shs.2,700,000 without explanation or request. Since the bank is the party obligated to keep proper records and avail statements of account, its inability to do so meant the alleged debt rested on guesswork, which a court of law cannot act upon.

p. 3
03

Whether judgment on refund of auction proceeds was beyond the pleadings

Holding

No error: the issues proceeded on arose from the pleadings and were left to the court, so the judge could grant the refund order.

Reasoning

A judgment should be based on the pleadings, but following Odd Jobs v Mubea a court may decide a non-pleaded issue where the course of trial shows it was left to the court. The pleadings and issues related to the operation of the loan account and the sale of the suit property; the judge's findings, including the refund of the Shs.16,000,000 proceeds, were in accord with those pleadings and issues.

p. 5

Legal principles established

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  • A bank which fails to keep proper records of account cannot make a calculable claim against a customer and will be disqualified from making any claim against a borrower.
  • Section 44A of the Banking Act applies retrospectively to loans, including loans that became non-performing before its commencement, and caps recoverable interest on a non-performing loan at the principal owing.
  • The in duplum rule protects borrowers from exploitation by lenders and safeguards the equity of redemption.
  • A court may base its decision on a non-pleaded issue if it appears from the course followed at trial that the issue was left to the court for decision.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the 1st respondent

Authorities

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Legislation

  • Banking Actsection 44A
  • Banking Actsection 44A(2)
  • Banking Actsection 44A(6)
  • Central Bank of Kenya Actcertain provisions (as pleaded)

Cases cited (4)

  • Selle & Another v Associated Motor Boat Company Limited & Others
    [1968] EA 123
  • Mwambeja Ranching Company Limited and Another v Kenya National Capital Corporation
    [2019] eKLR
  • James Muniu Mucheru v National Bank of Kenya Limited
    Civil Appeal No. 365 of 2017
  • Odd Jobs v Mubea
    [1970] EA 476
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 10 of 2010
Jurisdiction invoked
First appellate jurisdiction over the High Court (appeal as of right from the judgment and decree of the High Court)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Housing Finance Company of Kenya Limited v Scholarstica Nyaguthii Muturi & another [2020] KECA 833 (KLR)", Case Analysis (2020). Civil Appeal No. 153 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/833/eng@2020-04-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.