A bank has appealed against a decision of the high court that it manufactured statements of accounts of a company it advanced a loan 27 years ago to finance a flower project in Nyandarua County.
The Kenya Commercial Bank (KCB), which advanced a loan to Benjoh Amalgamated Limited in 1989, is asking the court of appeal to quash the finding of a former High Court judge that it “had manufactured the statement of accounts of the company.”
Benjoh had disputed the outstanding loan amount the bank demanded saying it did not know how a figure of Sh70 million was arrived at as no proper statement of accounts was availed to it on request.
KCB had asked the late Justice Joyce Khaminwa to dismiss the case by Benjoh seeking the accounts saying the issue had been revisited in 18 previous cases.
Benjoh says the amount demanded by the bank between May 9, 1996 and May 9, 2006 was Sh143,844,249.59.
But the bank admitted before the late judge that it was “not able to trace statements of its (Benjoh) account save for the period between December 2003 and May 2006 — the files and bank statements got lost.”
The company whose managing director is Captain (retired) Samuel Kung’u Muigai says there is a lot of confusion as the amounts demanded are varying.
Mr Kung’u says his company is entitled to a true statement of account and that the move by KCB to sell to Bidii Kenya Limited, Muiri Coffee estate’s 443 acres under coffee should be reversed on disputed loan amount.
Muiri had secured the loan to Benjoh in 1989. After Benjoh failed to pay the loan, which the bank says stands at Sh168,065,347, proceeded to sell Muiri Coffee Estate Limited in Thika.
In her ruling of November 2009 the former judge said the statement of account indicating Benjoh owed KCB Sh168,065,347 less Sh14,468,937 “must have been manufactured given that its officer — Mr Chris Theuri — had admitted under oath documents that the account got lost.
The late judge rejected a bid to strike out the case by Benjoh against KCB seeking its accounts record. She said the case was not scandalous, vexatious and an abuse of the court process.
“Benjoh is entitled to a hearing as some issues had not been disclosed in previous suits,” Justice Khaminwa ruled then.
The Court of appeal registry will fix a hearing date of the KCB appeal.
KCB says the late judge erred in fact and in law in allowing Benjoh to seek fresh redress when the case which has been pending in court for 24 years had been determined.