1.The plaintiff filed this suit seeking to recover the sum of Kshs. 3,076,902.25 from the 1st and 2nd defendants after advancing a loan and or an overdraft facility. The plaintiff is as well praying contemporaneously for the payment of other bank charges as well as interest so far incurred or accrued in the cause of the existence and non-payment of the same.
2.As against the 3rd defendant the plaintiff seeks a recovery of Kshs. 1,000,000 being the amount he guaranteed the 1st and 2nd defendants. It also prays for the recovery of interest, costs as well as other incidentals.
3.The plaintiff’s case against the 4th defendant is for the recovery of Kshs. 100,000 he guaranteed the 1st and 2nd defendants together with costs, interest and other incidentals.
4.When the defendants were served they each filed defences. The 1st and 2nd defendants filed their defence on 8th November 1995 while the 3rd defendant did file his on 16th October 1995.
5.Judgement was entered against the 4th defendant and execution levied against him for the recovery of the Kshs100, 000 he had guaranteed. There is no evidence if the same was paid but for purposes of this judgement it is assumed that the same was not paid.
6.After about a decade and half, this matter was set down for hearing and it was evident that the defendants had no representations their counsels having ceased to act.
7.When it came up for hearing on 3rd March 2022 there was no representation on the part of the defendants despite them being served as per the affidavit of service dated 4th February 2022.
8.The plaintiffs only witness Judah Kimutai testified and relied on his statements on record. He also relied on the list of documents on record dated 21st February 2005. The 4th defendant acted as a guarantor by surrendering land parcels /titles numbers Kericho /Boiywek/236 and Kericho/Sosiot/1419 as securities.
9.He testified that the loan was to be paid on monthly instalments but the defendants did not honour the same despite being issued with appropriate notices. Consequently, he asked this court to grant the plaintiffs request as prayed.
10.The court has perused the defences by the defendants and it is of the considered opinion that the same are merely general denials. They do not deny that they were advanced the facility or guaranteed the same.
11.The documents produced and relied on by the plaintiff includes admissions by the defendants and their request to pay the loan by way of instalments. These includes the correspondences dated 22nd October 1994, 7th February 1995, 20th June 1994,18th June 1994 ,31st January 1995 among many others. Clearly they have no arguable defence. As a matter of fact, it was their counsels who before filing of this suit negotiated on repayments of the debt. In essence they were fully aware of the default.
12.Further, one wonders why this matter had been clogging our judicial system for all these years. As indicated above if there is any evidence of any sort of payments by the defendants then the plaintiff ought to discount from the decretal amount.
13.In the premises judgement is hereby entered against the defendants jointly and severally as per the plaint dated 7th august 1995 together with costs and interest.