1.The Plaintiff filed suit on 6/6/2008. The plaint was amended. On 15/2/2023 to include the second change of name from Oriental Commercial Bank Ltd to M’ Oriental Bank Ltd.
2.The main claim is that the 2nd Defendant’s indebted to the Plaintiff’s at 31/8/2003 to the time of Ksh 4,029,838.98. This related to guaranteed which were given to various clients.
3.The debts for Ferrro Metal Forwarders Ltd were pursuant to 4 guarantees dated 22/3/2001 (Arco Investment for 20 Million 22/3/2001 for East African Nail Works Ltd, for 20,000,000/= 26/3/2001 for 20,0000/= and 25/3/2001 to later Jayantilal Gokaldas Rajain.
4.Secondly, regarding Pharmaceutical Produced Ltd, on 30/4/1999 of Arco Investments Ksh. 5,0000,000/=, East African Nail Works Ltd for 5,000,000/= Guarantee dated 24/5/1999 of Jayantilalal Rajani for Ksh. 5,000,000/=, Guarantee dated 24/5/1999 of the late Jayantilal Gokaldas Rajani.
5.The debt is said to have been due as at 19/8/2003 for the 2nd Defendant and Kshs. 1,370,069.05 for 1st defendant. The claim was thus for Kshs. 5,424,634.98 with interest of Kshs. 21.25 %.
6.Only the 5th Defendant filed appearance through the firm of J.M. Njenga & Companies Advocates. The 5th defendant denies the debt of the 1st Defendant and 2nd Defendant.
7.The Plaintiff testified through Wilfred Kennedy Machini. He adopted the statement dated 10/12/2018. He produced exhibit 1-31 as per the schedule. The facilities were enjoined by the 1st and 2nd Defendant in the year 2000. By the year 2003 they reportedly had a debt of 3,983,643 and 1,370,069.
8.The 1st and second Defendants promised to pay in vain. This was secured by guarantee by the 3- 6 Defendants for Ksh. 5,424,634.98.
9.He stated that the 5th Defendant was a director of the 1st defendant. He is the only one defending the suit. It was his evidence that the bank changed its name in 2010.
10.The debtor was informed at as can be seen from page 111 on 3/07/2002. In impugned letter amount claimed from the 2nd defendant was Ksh 3,535,738/=. Therefore, default occurred on 3/7/2002. The borrowing was done on 10/4/9999 and guarantees were given equally in April, 1999. Personal guarantors were given in May 1999. The letter over was in 1999 and the and the purpose was for 90 days.
11.The exhibit number 10 has a letter for banking facilities for 1st defendant. As at 24/7/2002, the Ferrro Metal Forwarders Ltd (2nd defendant) acknowledged debt.
12.By a letter dated 19/8/2003 a dispute was declared. From pages 122 to 124 bills that were noted for various amounts were indicated. By a letter dated 26/9/2003, acknowledging the debt on behalf of Pharmaceutical Product. Therefore, the claim though time barred was revived by that acknowledgment.
13.I therefore find that the plaintiff Case against the 1st and 2nd defendants is not time barred by dint of the acknowledgement.
14.There has been no acknowledgment of Analysis indebtedness as against the 3rd, 4th, 5th and 6th Respondents. Consequently, the claims against them are time barred.
15.Accordingly, I dismiss the suit against the 3rd, 4th, 5th, and 6th defendant as with costs of 200,000 of the 5th defendant payable by the Plaintiff within 30 days in default execution to issue.
16.The 3rd, 4th and 6th defendants did not participate and therefore will bear their own costs.
17.I note that the 1st and 2nd respondents are jointly and severally sued and no basis was laid for the same. I note in paragraph 4 of the plaint the 1st defendant’s indebtedness was 4,029,83898 while the 1st defendants indebtedness of Ksh 1,394,796. The nature of the claim are various matters where from the witness statement there are certain bills.
18.These bills are bare. They have not been specifically pleaded, how they arose, which ones were paid and which ones were not paid. Other than the demand letter which relates to personal guarantees there’s no evidence of indebtedness as pleaded. There is no bank statement showing how these debts were incurred, which were paid and which ones weren’t.
20.Simply listing bills in a witness statement and showing them to the court is not useful. A claim of this nature must be particularized before proceeding to prove its not enough tell the court that this is what I was owed as at this period. The court must be satisfied that way of pleading that that debt arose. By seeking Kshs. 5,424,634.38 jointly and severally, against the defendants they leave it to the court to discern what possibly each defendant could be owing.
21.We don’t simply believe a bank when it says its owed. It must show that its owed whether it’s a claim over letters of credit, it’s an overdraft or even a loan. In the case of Mithika M’inoti v Eusabia Nkuene Julius  eKLR, the court stated as doth: -
22.Each of the directors or companies named are said to have issued guarantees of 5,000,000 but there no pleading relating to the guarantees that became due and owing. The reason why pleadings of this nature must be specifically made is not just for the purpose of limitation of actions but also for purpose of a party being able to defend its claim.
24.I adopt this mantra. Parties must be bound by their pleadings, it is not enough to throw evidence to the court during the hearing that has no basis in pleadings.
25.This is so in particular for this matter that started with documentation in 1999 and debts being incurred in 2001 while the suit is being filed in 2008 a period of 9 and 7 years respectively.
27.The 1st and 2nd Defendants are not said to have joint liability. No claim is particularized as against each. Yes, they may be a debt between them. However, given that no one can be held liable for a contract he is not party to, there needed to be specific evidence and pleadings on how each indebtedness arose.
28.The documentation product show that the credit period was 90 days and if payment was not made it means default occurred between 1999 and 2001. Only proper pleadings could have shown whether the claim fell outside the exceptions under the Limitation Act Cap 22.
30.The Court is bound to first ensure that before delivering judgment that it has jurisdiction to do so. This is important in that without jurisdiction this Court has to down its tools. In Lilian S, Justice Nyarangi JA stated as doth: -
31.We cannot twist facts and confer jurisdiction over the Court S.K. Macharia the Supreme Court stated: -
32.In the circumstances, the plaintiff has not proved its case of the required standard against the 1st and 2nd Defendant.
33.I therefore dismiss the entire case against the 1st and 2nd defendants. Each party to bear its costs given that the 1st and 2nd defendants did not defend the case.
34.In the upshot of the foregoing is that: -i. The plaintiff’s case lacks costs and is dismissed in limine with costs of the 200,000 to the 5th defendant payable within 30 days, in default execution to issue against the plaintiff.ii. All the other parties to bear their own costs.iii. The case is closed.