NAIROBI, KENYA: Court of Appeal has lifted orders barring the National Bank of Kenya from selling late Mombasa Tycoon Tahir Sheikh Said (TSS) over USD 37 million (Sh3.7b) loan.
Justices William Ouko, Gatembu Kairu, and Kathurima M’Inoti overturned Environment and Lands Court Judge James Olola’s orders saying that although he was moved by sympathy that TSS had just died when the bank issued its notice, the law tilted in favour of the lender.
TSS owned a majority stake in Juja Coffee Exporters Limited. The company had borrowed from NBK Sh 2.9 billion and used a piece of land in Mombasa as security. The property was registered in TSS’s other company, Lamu Ginners Company Limited.
“In restraining the Bank from pursuing its remedies under the legal charge, the learned Judge appears to also have been moved by the plea that one of the directors of the borrower, who was said to be the “mover” of the company and the principal director had died. Whereas the sympathy and compassion shown by the Judge may be commendable, it was not a sound legal basis for exercising judicial discretion in the manner that he did,” Appeals Court judges ruled.
The firm argued that at the time he was alive TSS was the sole primary decision-maker and he is the one who had negotiated the loan. According to surviving director, Tauhida Tahir Said they had difficulties tracing relevant documents on the loan.
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Moreover, the coffee firm expressed a desire to settle the debt to salvage the property.
Justice Olola in his ruling last year said that there were doubts on the loan and barred the lender from auctioning the land until such a time they would produce documents on the loan and authenticate the amounts TSS’s firm owed the lender.
“As matters stand, the plaintiffs (Juja Coffee Exporters) have raised a pertinent issue as to whether the charge was executed and whether the directors who did so had the plaintiff’s authority to do so. The plaintiff’s surviving directors have indicated that they had no knowledge of the execution of the Charge and I think it was incumbent upon the Defendants to demonstrate the existence of the same as well as the fact that it was properly executed by authorised signatories,” he ruled.
Aggrieved, NBK moved to the Court of Appeal complaining that the judge failed to factor in that the borrower had defaulted paying the loan and had already accrued more than Sh12 million interest.
According to the bank, it first issued the firm with a 30 days’ notice and when the period lapsed, it issued a second notice of 40 days. The court heard that a third notice was issued of 45 days and this included an intention to auction the property.
"It is, therefore, the defendant’s position that the plaintiff’s contention that it was not served with the requisite statutory notices is untrue and misrepresentation of facts calculated to obtain undue advantage and cloud the Judgment of the Court, "NBK replied.
The Bank argued that there was no contest in the case as the firm owned up that there was a loan.
Justices Ouko, Kairu, and M’Inoti agreed with the bank noting that he failed to address issues raised by the bank on the loan.
“Based on the pleading and depositions in the affidavit by the borrower’s director acknowledging the borrowing and the security given to the Bank for the same, we find that the learned Judge misdirected himself in proceeding on the basis that there was a contest, either as to the borrowing or the execution of the securities. The existence of the legal charge was expressly admitted,” they ruled.
The court also ordered the coffee firm to shoulder the cost of the appeal.
