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ELCAllowedNot stated in judgment· [2020] KEELC 1207 (KLR)

Amichand Narshi Shah & 2 others v Alexander James Private Investigation Limited [2020] KEELC 1207 (KLR)

Environment and Land Court of Kenya
24 September 2020
4,962 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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A lender claiming to have paid a loan through a third party lost the property it took as security because it couldn't prove payment.

What this practically means

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Executive summary

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The plaintiffs, joint lessees of Flat No. A4 on L.R No. 209/3/10, I.R No. 78108 in Parklands, Nairobi, sued the defendant alleging that it conspired with one Sachin Patel to trick them into signing a loan agreement and instrument of transfer for a Kshs. 10 Million loan that was never disbursed. The court, in a judgment delivered by S. Okong'o, J on 24th September 2020, framed six issues. It held that the loan agreement was valid and binding: no trick, misrepresentation or fraud was proved, no evidence showed the 3rd plaintiff was abroad on the date of execution, and no expert evidence established forgery of her signature. The pivotal issue was whether the loan was disbursed. The defendant's director testified he withdrew Kshs. 10 Million in cash and gave it to Sachin Patel as the plaintiffs' agent. The court held that a letter authored by Sachin Patel himself could not constitute the plaintiffs' authorisation, that the loan agreement made no provision for payment to a third party, and that under Section 112 of the Evidence Act the defendant bore the burden of proving payment, which it failed to discharge as no withdrawal slip or bank statement was produced. The defendant therefore did not perform its part, and the plaintiffs had nothing to repay. Clause 5 of the agreement required one month's notice of default and a joint valuation before transfer; DW1 admitted neither occurred, and the property was transferred to DW1 personally rather than to the defendant, contrary to the agreement. Judgment was entered for the plaintiffs: a declaration of ownership, a permanent injunction, an order for re-transfer of the property and return of the original lease within 60 days, and costs of the suit.

Key legal issues

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01

Validity of the loan agreement

Holding

The loan agreement dated 15th April 2014 was valid and binding on the parties; the plaintiffs failed to prove fraud, misrepresentation or the alleged absence of the 3rd plaintiff's signature

Reasoning

The court found no evidence of trick or misrepresentation, no proof that the 3rd plaintiff was abroad, and no expert evidence of forgery. The 3rd plaintiff did not testify despite an adjournment for that purpose, and the plaintiffs' expectation of performance of the agreement contradicted their claim that it was defective for want of her signature.

p. 4
02

Whether the defendant disbursed the loan

Holding

The defendant failed to prove that it disbursed the Kshs. 10 Million to the plaintiffs and therefore did not perform its part of the agreement

Reasoning

The defendant paid cash to Sachin Patel without the plaintiffs' authorisation; a letter from Patel himself could not constitute the plaintiffs' authorisation. No withdrawal slip or bank statement was produced to prove the withdrawal. Facts of how, when and to whom payment was made were within the defendant's knowledge under Section 112 of the Evidence Act.

p. 4
03

Whether the transfer of the suit property to the defendant was in accordance with the agreement

Holding

The transfer was irregular: no one-month default notice was issued, no joint valuation was carried out, and the property was transferred to DW1 personally rather than to the defendant

Reasoning

Clause 5 required notice of default and a joint valuation before transfer. DW1 admitted neither was done. Further, the property was registered in DW1's name although the agreement and instrument of transfer were in favour of the defendant, and no stamped or registered instrument of transfer was produced.

p. 5

Legal principles established

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  • A lender's release of loan funds to a third party without the borrowers' authorisation does not discharge the lender's obligation to disburse the loan to the borrowers
  • Where the fact of payment is especially within the lender's knowledge, the burden of proving that payment was made rests on the lender under Section 112 of the Evidence Act

Court orders

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  1. 1.Declared that the plaintiffs are the owners of Flat No. A4 situated in Block A on L.R No. 209/3/10, I.R No. 78108
  2. 2.Issued a permanent injunction restraining the defendant, by itself or through its agents, from selling, transferring or in any way dealing with the suit property
  3. 3.Directed the defendant and its director James Kigathi Ndegwa to, within sixty (60) days, execute an instrument of transfer re-conveying the suit property to the plaintiffs and return the original lease handed over as security
  4. 4.Awarded the plaintiffs the costs of the suit
Jurisdiction invoked
Original civil suit instituted by plaint; specific provision not stated in judgment

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, "Amichand Narshi Shah & 2 others v Alexander James Private Investigation Limited [2020] KEELC 1207 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1207/eng@2020-09-24

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