NATIONAL BANK OF KENYA v JAMES MAKANA OGAMBA [2012] KEHC 4942 (KLR)

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