Introduction and background
1. By a plaint dated 18 December 2023, the plaintiff sued the defendants jointly and severally for Kshs. 25,409,404.83 said to be owing as at 23 October 2023 together with contractual profits thereon at the rate of 14.5% per annum from that date until payment in full, and for costs of the suit with interest.
2. The claim arises from a banking facility. By a letter of offer dated 2 December 2022, the plaintiff advanced to the 1st defendant a Diminishing Musharakah Auto Finance Facility of Kshs. 26,880,000/= to finance the purchase of three FAW trucks and three tipper trailers. The facility was repayable in forty-eight monthly instalments commencing on the date of drawdown, with profit at rates of between 14.25% and 14.5% per annum. By two separate but similar guarantees, both dated 13 December 2022, the 2nd and 3rd defendants, who are directors of the 1st defendant, jointly and severally guaranteed the 1st defendant’s performance of its obligations under the facility up to a limit of Kshs. 27,000,000/= together with profits, commissions and costs that might accrue.
3. The facility was drawn down on or about 22 February 2023 and applied to the purchase of the trucks and trailers, which were registered as KDL 502L, KDL 503D and KDL 504D, and trailers ZH 0512, ZH 0513 and ZH 0514. The units stood as security for the facility; an initial notice in respect of the plaintiff’s security right in them was registered under the Movable Property Security Rights Act, cap. 499A on 14 April 2023, securing the sum of Kshs. 26,880,000/=. I should mention that the record is not consistent as to which trailer was coupled to which prime mover at any given time; nothing turns on this and I do not dwell on it.
4. The 1st defendant commenced repayment in February 2023 at a monthly instalment in the region of Kshs. 735,988/=, roughly Kshs. 245,996/= for each truck-and-trailer set. On 16 June 2023, KDL 503D and the trailer it was pulling were involved in an accident in the United Republic of Tanzania. The 1st defendant’s remittances thereafter became irregular; on its own account, it paid only in respect of the units that remained operational. The last instalment the plaintiff received was on 19 September 2023.
5. The plaintiff pressed for payment. It wrote on 20 July 2023 requiring the 1st defendant to regularise its account, and on 7 August 2023 it served, by electronic mail, a notification of default under section 67(1) of the Movable Property Security Rights Act. The notification put the arrears at Kshs. 780,861.44 and the total outstanding balance at Kshs. 26,816,300.69, and warned that the plaintiff would exercise its remedies, including repossession of the financed units, if the default was not rectified. A second accident followed: on or about 24 October 2023, KDL 502L was involved in an accident, and that unit ultimately ended up in the hands of the insurer. Through its advocates, the plaintiff issued a formal demand on 30 November 2023. The 1st defendant had, for its part, sued the plaintiff in Mombasa CMCC No. E1202 of 2023 seeking injunctive relief; that suit was struck out for want of pecuniary jurisdiction.
6. This suit was filed on 18 December 2023. The summons to enter appearance was served on the defendants by electronic mail on 19 December 2023 pursuant to Order 5 rule 22B of the Civil Procedure Rules. No appearance was entered, and on the plaintiff’s request for judgment dated 2 February 2024, interlocutory judgment in default of appearance was entered on 8 February 2024 and a decree extracted on 12 February 2024. On the defendants’ application dated 27 March 2024, however, the default judgment was set aside by a ruling delivered on 8 July 2024, and the defendants were let in to defend. They filed a joint defence and counterclaim dated 29 July 2024, to which the plaintiff responded by a reply to defence and defence to counterclaim dated 19 September 2024.
7. In the meantime, events had not stood still. The plaintiff repossessed KDL 504D and trailer ZH 0513. The defendants plead, and the plaintiff’s witness conceded in cross-examination, that the repossession took place on 2 February 2024; correspondence in the plaintiff’s own bundle suggests the units were held at its storage yard from 7 April 2024. Once again, nothing turns on the discrepancy. The prime mover was sold on 9 May 2024 for Kshs. 4,300,995/= and the trailer on 15 June 2024 for Kshs. 1,700,000/=, and the proceeds were credited to the loan account. Geminia Insurance Company, the insurer of the units, settled the claim in respect of KDL 503D, which it declared a constructive total loss, at its pre-accident value of Kshs. 6,800,000/= by a discharge voucher of 17 April 2024; the settlement sum was credited to the account on 13 August 2024. According to the plaintiff’s statement of account, the balance outstanding after these credits stood at Kshs. 18,855,825.03 as at 19 September 2024.
The plaintiff’s case
8. The suit proceeded to full trial before me on 9 June 2025. The plaintiff called one witness, Mr. Lawi Sato, its senior legal officer, who adopted his witness statements dated 18 December 2023 and 23 September 2024 and produced the documents in the plaintiff’s two lists of documents of even dates as plaintiff’s exhibits 1 to 13.
9. In his first statement, the witness rehearsed the terms of the facility and the guarantees, the purchase and charging of the units, the 1st defendant’s default in payment of instalments and, as he put it, of insurance premiums, the two accidents, and the demands that preceded the suit. In the further statement, made in answer to the counterclaim, he deposed that the repossession and sale of KDL 504D and ZH 0513 were undertaken pursuant to the plaintiff’s security rights after due notification of default; that the insurance settlement for KDL 503D was received and credited; that the two remaining units are accident-damaged wrecks of no realisable value; that the plaintiff seeks no double recovery; and that the balance owing, after all credits, is Kshs. 18,855,825.03 as reflected in the statement of account produced as plaintiff’s exhibit 13.
10. Cross-examination yielded a number of concessions which I must set out because they framed much of the argument. The witness accepted that the judgment first obtained was an ex parte default judgment which was set aside on 8 July 2024; that the repossession of 2 February 2024 was effected without a court order while the suit was pending; that the sales of 9 May 2024 and 15 June 2024 took place while the defendants’ application to set aside the default judgment was pending, again without any court order, and that the sales were not disclosed to the court at the hearing of that application. He accepted that instalments were received up to 19 September 2023 and that the defendants had contributed some Kshs. 6.2 million towards the facility. On insurance, he accepted that the premium arrears with the plaintiff’s brokers had reduced to Kshs. 456,416/= by 5 October 2023 and that Kshs. 457,000/= was paid on 15 January 2024; he conceded that the premiums for the three trucks were paid, stated in terms that “we are not claiming insurance premium”, and accepted that no document in the plaintiff’s bundle showed that the insurer had dishonoured any claim.
The defendants’ case
11. By their joint defence, the defendants admitted the facility and the guarantees but pleaded that the letter of offer of 2 December 2022 “granted the Defendants or a member of their group a Moratorium in respect of any Financial indebtedness.” They denied being in breach and turned the accusation around: it was the plaintiff, they pleaded, that breached a fundamental term of the facility by failing to grant them a moratorium immediately the trucks were involved in the accidents of 16 June 2023 and 25 October 2023, “contrary to the clear and unambiguous provision 12.8 of the letter of offer.” They pleaded that they insured the units through the plaintiff’s own insurance brokers and paid the premiums in full, yet had not been compensated; that the plaintiff was “fully responsible” for the non-compensation; that they had a legitimate expectation of a moratorium; and that the plaintiff sought to enrich itself unjustly through its unfair and illegal actions.
12. By the counterclaim, the defendants pleaded that on 2 February 2024 the plaintiff irregularly and unlawfully repossessed KDL 504D and trailer ZH 0513, during the pendency of this case and without a court order, bringing their business to a standstill and occasioning them a continuing loss of business at the rate of Kshs. 980,000/= per month. They prayed for:
(a) a declaration that they were entitled to a moratorium immediately the accidents occurred to KDL 503D on 16 June 2023 and KDL 502L on 25 October 2023, stopping any demand for repayment and the charging of interest and penalties on the two trucks’ accounts until full compensation by the insurance company;
(b) an order expunging the demands for monthly repayment, interest and penalties on the accounts for the two accident units with effect from the respective accident dates until full compensation by the insurance company;
(c) an order for the unconditional release of KDL 504D and trailer ZH 0513 to the defendants;
(d) in the alternative, an order that the plaintiff pays the defendants the invoice value of KDL 504D and trailer ZH 0513;
(e) damages for loss of business at the rate of Kshs. 980,000 per month with effect from 2 February 2024 until release of the unit; and
(f) costs of the counterclaim and interest.
13. The defendants called one witness, the 3rd defendant, Mr. Almzamil Abdi Mohammed, who, according to the CR12 produced in evidence, is the sole director and shareholder of the 1st defendant. He adopted his witness statements of 15 August 2024 and 17 February 2025 and produced the defendants’ bundle of documents dated 24 September 2024 and the additional documents of 13 March 2025 as defence exhibits 1 to 10.
14. His account was this. The 1st defendant serviced the facility from February 2023 until the accident of June 2023, after which it paid only in respect of the units that were working. It spent upwards of Kshs. 500,000/= bringing the damaged truck back from Tanzania. The units were insured with Geminia at the plaintiff’s instance and through its brokers, and the premiums were paid in full, albeit by instalments; the accident report form was completed and submitted on 9 August 2023, yet no compensation was forthcoming for a long time. He engaged the plaintiff over the arrears – the engagement is reflected in electronic mail of 15 and 21 August 2023 – and made a payment in good faith on 19 September 2023. He complained of conflicting directions from the plaintiff’s Mombasa branch, which he said allowed payment of the arrears in instalments, and its head office, which insisted on payment in full; of calls from auctioneers; and, ultimately, of the repossession of what he described as the only functional truck and trailer. He put the earnings of each unit at approximately Kshs. 950,000/= per month and said that no account of the sale of the repossessed units was ever rendered to him. He was not cross-examined.
Submissions
15. At the close of the trial, the parties were directed to file written submissions. The plaintiff’s submissions are dated 18 July 2025. Counsel framed the case as one of “a borrower insisting that the lender must underwrite the borrower’s business.” On the plaint, counsel submitted that the loan is admitted and that, where a loan is advanced and not repaid, judgment follows as a matter of course unless a defence extinguishing the debt is established (See Sidian Bank Limited (formerly K-Rep Bank) v Microhouse Technologies Limited [2017] KEHC 4620 (KLR). On the moratorium defence, counsel pointed out that the whole of clause 12 of the letter of offer deals with events of default entitling the plaintiff to call up the security, and wondered how a clause conferring rights on the plaintiff could be read as benefiting the 1st defendant. Counsel relied on Khunaif Trading Company Limited v Equity Bank Limited & Trevor Auctioneers [2015] KEHC 6258 (KLR) for the proposition that an accident befalling a financed vehicle does not absolve the borrower of its payment obligations, and on Seahawk General Logistics Limited & 2 others v Stanbic Bank Kenya Limited [2021] KEHC 7813 (KLR) for the proposition that an accommodation not mandated by the contract is gratuitous and a lender cannot be faulted for insisting on the strict terms of its bargain.
16. On the insurance defence, counsel made three points: first, that repayment of the facility was never pegged on the proceeds of any insurance claim, citing this court’s ruling in Bakhsons Distributors Limited v Gulf African Bank & another [2025] KEHC 2661 (KLR); secondly, that correspondence in the plaintiff’s bundle showed the broker could not lodge the claim while premiums – an obligation of the 1st defendant – remained outstanding; and thirdly, that the insurance contract is between the 1st defendant and the insurer, so that the doctrine of privity forecloses any attempt to hold the plaintiff liable for the insurer’s conduct. As against the 2nd and 3rd defendants, counsel submitted that a guarantee is a contract separate and distinct from the principal contract; that all that is required to attach liability to a guarantor is default by the principal and a demand, citing Kenindia Assurance Company Limited v First National Finance Bank Limited [2008] KECA 91 (KLR); and that the guarantors could not adopt the principal debtor’s defences as though they were principals. Counsel invited the court to act on the statement of account showing Kshs. 18,855,825.03 owing as at 19 September 2024, section 176 of the Evidence Act rendering it prima facie evidence of its contents, and to enter judgment in that sum with profits and default damages at 13% and 20% per annum respectively from 19 September 2024.
17. On the counterclaim, counsel submitted that no law obliges a secured creditor to obtain a court order before repossessing its security; that section 67 of the Movable Property Security Rights Act empowers repossession without resort to court; that the statutory notice was issued and went unheeded; and that contractual repossession is recognised even without notice, citing Diamond Trust Bank Kenya Limited v Amudede Company Limited [2018] KEHC 4210 (KLR). The sales of 9 May and 15 June 2024, counsel submitted, preceded the orders of 8 July 2024, so that the plaintiff could not sensibly be accused of acting in defiance of any court order – there was none when the units were repossessed and sold. Finally, counsel submitted that the claim for Kshs. 980,000 per month is a claim in special damages which must be specifically pleaded and strictly proved, citing David Bagine v Martin Bundi [1997] KECA 54 (KLR), and that the single month’s statement of a personal bank account of the 3rd defendant produced by the defendants, when the trucks belonged to the 1st defendant, proves nothing remotely approaching the pleaded figure.
18. In their written submissions filed in reply, the defendants open with the law of pleadings and of contract: citing Vishva Stones Supplies Co. Ltd v RSR Stones (2006) Ltd, Civil Appeal No. E308 of 2020, counsel reminds the court that each party is bound by its own pleadings and that the court is itself bound by them; and citing Hydro Water Well (K) Ltd v Gilbert Muthendi Wambua & 2 others, Civil Suit No. E212 of 2019, that the remedies the courts grant in contract are designed to give effect to what the parties voluntarily undertook. Counsel emphasises that while PW1 was cross-examined at length and not re-examined, DW1 was not cross-examined at all. He then catalogues what he says is not in dispute: that the letter of offer of 2 December 2022 is the only lending agreement between the parties and contains all their contracted rights and obligations; the advance of Kshs. 26,880,000 and the purchase of the three trucks and trailers; the two accidents of June and October 2023; the repossession of 2 February 2024 during the pendency of this suit; that the insurer and the brokers were approved by the plaintiff and that the 1st defendant paid the premiums by instalments through the plaintiff; the guarantees; and regular instalments until October 2023. Three issues are framed: whether the plaintiff made it difficult for the defendants to pay instalments beyond October 2023; whether the defendants failed to pay the insurance premiums; and whether they were entitled to a moratorium upon the occurrence of the accidents.
19. On the first and third of those issues, counsel submits that the plaintiff knew the loan was to be repaid from the earnings of the trucks, a matter he says PW1 admitted; that under clause 7.1 of the letter of offer the plaintiff and the 1st defendant were to be registered as joint owners of the units; that under clause 13.14 the plaintiff was itself obliged to pay the insurance premiums on the 1st defendant’s behalf and recover them from it; and that clause 12.8, though a sub-clause of the events-of-default article, “as drafted benefits the 1st Defendant” because “it gives a moratorium to them in the event of default.” Counsel points to the defendants’ written request for a moratorium dated 16 August 2023, produced as defence exhibit 5, which the plaintiff neither answered nor granted and for which refusal it has never supplied a reason; invokes the definition of a moratorium in Black’s Law Dictionary and the observation in Cheyne Row Investments Ltd v Malde Holdings Ltd, Insolvency Cause No. E030 of 2021 that a moratorium provides “a breathing space”; and submits that the refusal amounted to forcing the defendants into default, so that the plaintiff approbates and reprobates and comes to court with unclean hands, its authorities, viz. Sidian Bank Limited (formerly K-Rep Bank) v Microhouse Technologies Limited (supra), Khunaif Trading Company Limited v Equity Bank Limited & Trevor Auctioneers (supra) and Seahawk General Logistics Limited & 2 others v Stanbic Bank Kenya Limited (supra) being distinguishable. On the premiums, counsel submits that the plaintiff’s pleaded case, that unpaid premiums caused the insurer to decline the claims, collapsed in cross-examination: the brokers’ statement showed a balance of Kshs. 956,416/= as at 7 June 2023, reduced to Kshs. 456,416/= by 5 October 2023, which the Pesalink transfer of Kshs. 457,000/= on 15 January 2024, defence exhibit 3, settled in full; PW1 admitted that the insurer in fact settled one claim, which counsel says gives the lie to the refusal narrative; and on the defendants’ reading of clauses 7.1 and 13.14 the premium obligation was in any event the plaintiff’s. Counsel asserts that the insurer’s compensation was deposited with the plaintiff but that no credit was passed to the defendants.
20. In direct answer to the plaintiff’s submissions, counsel takes the pleading point in both directions: the court cannot enter judgment for Kshs. 25,409,404.83, which the plaintiff’s own statement of account contradicts; nor for Kshs. 18,855,825.03, which counsel characterises as a new prayer appearing nowhere in the plaint, raised for the first time through submissions without any amendment, and which the defendants had no opportunity to interrogate, citing Vishva Stones and Kenya Women Finance Trust v Square Deal Kenya Ltd, Civil Appeal No. 36 of 2021. The distinction the plaintiff draws between the principal debtor and the guarantors is said not to be borne out by the plaint as drawn, and the Kenindia case is distinguishable. On the counterclaim, counsel submits that clause 6 of the letter of offer, which deals with repayment, confers no express right of repossession; that by electing to sue for recovery of the loan the plaintiff waived its self-help remedy of repossession and sale, and by dint of clause 6.5 ought to have awaited judgment and levied execution; and that the repossession and sale of the 1st defendant’s only functional unit during the pendency of this suit offended the doctrine of lis pendens – pendente lite nihil innovetur – citing Shavji Naran Virji v Ogla Jemel Barng’etuny [2021] eKLR. Finally, on damages, counsel submits that DW1’s evidence of earnings of Kshs. 980,000/= per month, supported by the bank statement produced as defence exhibit 8, went wholly unchallenged – no cross-examination, no objection to production, no question as to authenticity – and that it is not open to the plaintiff to attack through submissions evidence it declined to test at trial.
Issues for determination
21. From the pleadings, the evidence and the submissions, the questions that fall for determination are, first, whether the defendants were entitled under the letter of offer to a moratorium upon the occurrence of the accidents; secondly, whether the plaintiff’s claim is otherwise answered by the events surrounding the insurance of the financed units; thirdly, whether the plaintiff has proved the sum claimed against the 1st defendant and against the 2nd and 3rd defendants as guarantors; fourthly, whether the defendants have proved their counterclaim; and finally, what orders should be made on reliefs and costs.
Whether the defendants were entitled to a moratorium
22. It is common ground that the facility was advanced, that the trucks and trailers were purchased with it, and that instalments ceased flowing after 19 September 2023. The defendants’ answer to what would otherwise be a straightforward claim in debt rests, first and foremost, on clause 12.8 of the letter of offer. The clause reads:
“A moratorium is declared in respect of any Financial Indebtedness of the Customer or a member of the Group.”
23. The clause does not stand alone. It is one of a series of clauses under article 12 of the letter of offer, an article dealing with events of default. Each clause in that article describes an event which, should it occur, constitutes a default entitling the plaintiff to exercise its remedies, including calling up the facility and realising its security. Read in that context, as it must be, clause 12.8 addresses the situation in which a moratorium is declared – by operation of law, in insolvency, or under some arrangement between the customer and its creditors – in respect of the customer’s financial indebtedness, and stipulates that such a declaration is itself an event of default. The clause is, in short, a shield for the lender; it is not a sword for the borrower.
24. The construction the defendants urge inverts the provision. On no sensible reading does the clause oblige the plaintiff to grant a repayment holiday, still less confer upon the customer a unilateral right to suspend instalments whenever a financed unit is involved in an accident. The clause says nothing of accidents, nothing of insurance, and nothing of suspension of payment. The defendants did not point to any other provision of the letter of offer that does. A court of law cannot rewrite a contract for the parties or import into it terms they did not make for themselves: National Bank of Kenya Ltd v Pipe Plastic Samkolit (K) Ltd & another [2002] 2 EA 503. The 3rd defendant’s further assertion that a moratorium in these circumstances is “standard practice among financial institutions” was just that – an assertion. No evidence of any such practice, let alone a practice of such notoriety and certainty as to be imported into a written contract, was placed before the court.
25. If confirmation were needed that the defendants themselves never understood the contract in the sense they now urge, it is supplied by their own contemporaneous conduct. The defendants rely on their written request of 16 August 2023, produced as defence exhibit 5, by which they asked the plaintiff for a moratorium – a request counsel describes as made “in exercise of their right under Clause 12.8.” The document is, however, what it calls itself: a request. On 21 August 2023, in answer to the branch manager’s follow-up on the arrears, the 3rd defendant attributed the default to a client of the 1st defendant who had not paid, promised to clear the arrears as soon as possible, and then wrote: “We would also like to hear from you regarding the waiver of the 3 installment for KDL 503D.” One does not request a waiver, or ask to “hear from” the other party about it, in respect of instalments one is contractually entitled to withhold; one simply withholds them and points to the clause. The earlier exchange of 15 June 2023 is to the same effect: pressed for the overdue premium and instalment, the 1st defendant’s response was that it was awaiting remittances from its own clients – not that it was entitled to a moratorium. And the complaint, pressed in submissions, that the plaintiff never responded to the request or supplied reasons for declining it, itself concedes the point: a party with a contractual entitlement does not await the other’s response; a supplicant does. The moratorium plea has every appearance of an afterthought constructed for the purposes of this litigation.
26. The law on the point is not in doubt. In Khunaif Trading Company Limited v Equity Bank Limited & Trevor Auctioneers [2015] KEHC 6258 (KLR), the court, faced with a borrower whose financed vehicles could not generate income, adopted the holding in Joseph Chege Gitau v CFC Bank Limited [2008] eKLR that:
“… the fact that the motor vehicle had mechanical problems did not absolve the Appellant from his obligation to make the monthly payments, nor did it deny the Respondent its right to repossess the motor vehicle. It is evident that the agreement provided the Respondent the right to repossess the motor vehicle as long as there was default in payment of the monthly installments.”
27. In those circumstances the defendants could plead with the plaintiff to indulge them – as, on the evidence, they did – but they could not demand indulgence as of right. As Mabeya J. put it in Seahawk General Logistics Limited & 2 others v Stanbic Bank Kenya Limited [2021] KEHC 7813 (KLR):
“Whether or not to agree to accommodate the plaintiffs was in the discretion of the respondent. The respondent was entitled to insist on its pound of flesh. In so far as the accommodation being sought was not mandatory under the contract between the parties, but only gratuitous, the respondent could not be faulted for insisting on a strict application of the terms of the contract between it and the plaintiffs.”
28. The defendants’ resort to the dictionary meaning of a moratorium, and to the observation in Cheyne Row Investments Ltd v Malde Holdings Ltd (supra) that a moratorium affords “a breathing space,” does not advance the matter. What a moratorium is has never been in doubt; the question is who, under this contract, was entitled to one and from whom. Counsel’s formulation – that clause 12.8 “as drafted benefits the 1st Defendant” because “it gives a moratorium to them in the event of default” – lays the fallacy bare. On that reading, the very occurrence of a default would entitle the defaulting borrower to stop paying: the deeper the default, the stronger the entitlement. A construction that rewards default with immunity from the obligation to pay is commercially absurd, and clauses in an events-of-default article are not to be read as self-destructing in that fashion. Nor is there anything in the charge that the plaintiff, in declining the indulgence, approbates and reprobates or comes to court with unclean hands: both accusations assume the very entitlement I have found does not exist. A lender that declines a favour it never promised does nothing inequitable.
29. Nor can the defendants find refuge in the alleged indulgence of the plaintiff’s Mombasa branch as against its head office. Even taking that evidence at its highest, an arrangement to vary the written terms of the facility – to accept the arrears by instalments or to suspend repayment – would itself have had to possess the characteristics of a valid contract, the parties ad idem and the variation supported by consideration: Kenya Breweries Limited v Kiambu General Transport Agency Ltd [2000] eKLR. No concluded variation was pleaded, let alone proved. The plea of “legitimate expectation” fares no better; it is a doctrine of public law which has no purchase in the enforcement of a private commercial bargain, and, in any event, no representation by the plaintiff capable of founding any expectation was established. The first issue must accordingly be answered against the defendants: they were not entitled to any moratorium, their failure to pay instalments after 19 September 2023 was a default, and the plaintiff committed no breach in declining the indulgence sought.
Whether the insurance events answer the claim
30. The second strand of the defence is that repayment ought to have awaited, or come out of, compensation from the insurer, and that the plaintiff is to blame for the non-compensation. The short answer is that the 1st defendant’s obligation to repay the facility was never pegged on the proceeds of any insurance claim. The letter of offer obliged the 1st defendant to pay forty-eight monthly instalments; it did not make those instalments conditional on the fortunes of a claim against a third party. This court had occasion to make the same point, as it happens in litigation involving this very plaintiff, in Bakhsons Distributors Limited v Gulf African Bank & another [2025] KEHC 2661 (KLR): a borrower who has admittedly defaulted cannot turn around and blame the lender for initiating recovery, or attribute its default to the failure of a third-party source of funds, unless it demonstrates that repayment of the loan was pegged on that source. No such demonstration was made or attempted here.
31. Secondly, the contract of insurance was between the 1st defen
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1. By a plaint dated 18 December 2023, the plaintiff sued the defendants jointly and severally for Kshs. 25,409,404.83 said to be owing as at 23 October 2023 together with contractual profits thereon at the rate of 14.5% per annum from that date until payment in full, and for costs of the suit with interest.
2. The claim arises from a banking facility. By a letter of offer dated 2 December 2022, the plaintiff advanced to the 1st defendant a Diminishing Musharakah Auto Finance Facility of Kshs. 26,880,000/= to finance the purchase of three FAW trucks and three tipper trailers. The facility was repayable in forty-eight monthly instalments commencing on the date of drawdown, with profit at rates of between 14.25% and 14.5% per annum. By two separate but similar guarantees, both dated 13 December 2022, the 2nd and 3rd defendants, who are directors of the 1st defendant, jointly and severally guaranteed the 1st defendant’s performance of its obligations under the facility up to a limit of Kshs. 27,000,000/= together with profits, commissions and costs that might accrue.
3. The facility was drawn down on or about 22 February 2023 and applied to the purchase of the trucks and trailers, which were registered as KDL 502L, KDL 503D and KDL 504D, and trailers ZH 0512, ZH 0513 and ZH 0514. The units stood as security for the facility; an initial notice in respect of the plaintiff’s security right in them was registered under the Movable Property Security Rights Act, cap. 499A on 14 April 2023, securing the sum of Kshs. 26,880,000/=. I should mention that the record is not consistent as to which trailer was coupled to which prime mover at any given time; nothing turns on this and I do not dwell on it.
4. The 1st defendant commenced repayment in February 2023 at a monthly instalment in the region of Kshs. 735,988/=, roughly Kshs. 245,996/= for each truck-and-trailer set. On 16 June 2023, KDL 503D and the trailer it was pulling were involved in an accident in the United Republic of Tanzania. The 1st defendant’s remittances thereafter became irregular; on its own account, it paid only in respect of the units that remained operational. The last instalment the plaintiff received was on 19 September 2023.
5. The plaintiff pressed for payment. It wrote on 20 July 2023 requiring the 1st defendant to regularise its account, and on 7 August 2023 it served, by electronic mail, a notification of default under section 67(1) of the Movable Property Security Rights Act. The notification put the arrears at Kshs. 780,861.44 and the total outstanding balance at Kshs. 26,816,300.69, and warned that the plaintiff would exercise its remedies, including repossession of the financed units, if the default was not rectified. A second accident followed: on or about 24 October 2023, KDL 502L was involved in an accident, and that unit ultimately ended up in the hands of the insurer. Through its advocates, the plaintiff issued a formal demand on 30 November 2023. The 1st defendant had, for its part, sued the plaintiff in Mombasa CMCC No. E1202 of 2023 seeking injunctive relief; that suit was struck out for want of pecuniary jurisdiction.
6. This suit was filed on 18 December 2023. The summons to enter appearance was served on the defendants by electronic mail on 19 December 2023 pursuant to Order 5 rule 22B of the Civil Procedure Rules. No appearance was entered, and on the plaintiff’s request for judgment dated 2 February 2024, interlocutory judgment in default of appearance was entered on 8 February 2024 and a decree extracted on 12 February 2024. On the defendants’ application dated 27 March 2024, however, the default judgment was set aside by a ruling delivered on 8 July 2024, and the defendants were let in to defend. They filed a joint defence and counterclaim dated 29 July 2024, to which the plaintiff responded by a reply to defence and defence to counterclaim dated 19 September 2024.
7. In the meantime, events had not stood still. The plaintiff repossessed KDL 504D and trailer ZH 0513. The defendants plead, and the plaintiff’s witness conceded in cross-examination, that the repossession took place on 2 February 2024; correspondence in the plaintiff’s own bundle suggests the units were held at its storage yard from 7 April 2024. Once again, nothing turns on the discrepancy. The prime mover was sold on 9 May 2024 for Kshs. 4,300,995/= and the trailer on 15 June 2024 for Kshs. 1,700,000/=, and the proceeds were credited to the loan account. Geminia Insurance Company, the insurer of the units, settled the claim in respect of KDL 503D, which it declared a constructive total loss, at its pre-accident value of Kshs. 6,800,000/= by a discharge voucher of 17 April 2024; the settlement sum was credited to the account on 13 August 2024. According to the plaintiff’s statement of account, the balance outstanding after these credits stood at Kshs. 18,855,825.03 as at 19 September 2024.
The plaintiff’s case
8. The suit proceeded to full trial before me on 9 June 2025. The plaintiff called one witness, Mr. Lawi Sato, its senior legal officer, who adopted his witness statements dated 18 December 2023 and 23 September 2024 and produced the documents in the plaintiff’s two lists of documents of even dates as plaintiff’s exhibits 1 to 13.
9. In his first statement, the witness rehearsed the terms of the facility and the guarantees, the purchase and charging of the units, the 1st defendant’s default in payment of instalments and, as he put it, of insurance premiums, the two accidents, and the demands that preceded the suit. In the further statement, made in answer to the counterclaim, he deposed that the repossession and sale of KDL 504D and ZH 0513 were undertaken pursuant to the plaintiff’s security rights after due notification of default; that the insurance settlement for KDL 503D was received and credited; that the two remaining units are accident-damaged wrecks of no realisable value; that the plaintiff seeks no double recovery; and that the balance owing, after all credits, is Kshs. 18,855,825.03 as reflected in the statement of account produced as plaintiff’s exhibit 13.
10. Cross-examination yielded a number of concessions which I must set out because they framed much of the argument. The witness accepted that the judgment first obtained was an ex parte default judgment which was set aside on 8 July 2024; that the repossession of 2 February 2024 was effected without a court order while the suit was pending; that the sales of 9 May 2024 and 15 June 2024 took place while the defendants’ application to set aside the default judgment was pending, again without any court order, and that the sales were not disclosed to the court at the hearing of that application. He accepted that instalments were received up to 19 September 2023 and that the defendants had contributed some Kshs. 6.2 million towards the facility. On insurance, he accepted that the premium arrears with the plaintiff’s brokers had reduced to Kshs. 456,416/= by 5 October 2023 and that Kshs. 457,000/= was paid on 15 January 2024; he conceded that the premiums for the three trucks were paid, stated in terms that “we are not claiming insurance premium”, and accepted that no document in the plaintiff’s bundle showed that the insurer had dishonoured any claim.
The defendants’ case
11. By their joint defence, the defendants admitted the facility and the guarantees but pleaded that the letter of offer of 2 December 2022 “granted the Defendants or a member of their group a Moratorium in respect of any Financial indebtedness.” They denied being in breach and turned the accusation around: it was the plaintiff, they pleaded, that breached a fundamental term of the facility by failing to grant them a moratorium immediately the trucks were involved in the accidents of 16 June 2023 and 25 October 2023, “contrary to the clear and unambiguous provision 12.8 of the letter of offer.” They pleaded that they insured the units through the plaintiff’s own insurance brokers and paid the premiums in full, yet had not been compensated; that the plaintiff was “fully responsible” for the non-compensation; that they had a legitimate expectation of a moratorium; and that the plaintiff sought to enrich itself unjustly through its unfair and illegal actions.
12. By the counterclaim, the defendants pleaded that on 2 February 2024 the plaintiff irregularly and unlawfully repossessed KDL 504D and trailer ZH 0513, during the pendency of this case and without a court order, bringing their business to a standstill and occasioning them a continuing loss of business at the rate of Kshs. 980,000/= per month. They prayed for:
(a) a declaration that they were entitled to a moratorium immediately the accidents occurred to KDL 503D on 16 June 2023 and KDL 502L on 25 October 2023, stopping any demand for repayment and the charging of interest and penalties on the two trucks’ accounts until full compensation by the insurance company;
(b) an order expunging the demands for monthly repayment, interest and penalties on the accounts for the two accident units with effect from the respective accident dates until full compensation by the insurance company;
(c) an order for the unconditional release of KDL 504D and trailer ZH 0513 to the defendants;
(d) in the alternative, an order that the plaintiff pays the defendants the invoice value of KDL 504D and trailer ZH 0513;
(e) damages for loss of business at the rate of Kshs. 980,000 per month with effect from 2 February 2024 until release of the unit; and
(f) costs of the counterclaim and interest.
13. The defendants called one witness, the 3rd defendant, Mr. Almzamil Abdi Mohammed, who, according to the CR12 produced in evidence, is the sole director and shareholder of the 1st defendant. He adopted his witness statements of 15 August 2024 and 17 February 2025 and produced the defendants’ bundle of documents dated 24 September 2024 and the additional documents of 13 March 2025 as defence exhibits 1 to 10.
14. His account was this. The 1st defendant serviced the facility from February 2023 until the accident of June 2023, after which it paid only in respect of the units that were working. It spent upwards of Kshs. 500,000/= bringing the damaged truck back from Tanzania. The units were insured with Geminia at the plaintiff’s instance and through its brokers, and the premiums were paid in full, albeit by instalments; the accident report form was completed and submitted on 9 August 2023, yet no compensation was forthcoming for a long time. He engaged the plaintiff over the arrears – the engagement is reflected in electronic mail of 15 and 21 August 2023 – and made a payment in good faith on 19 September 2023. He complained of conflicting directions from the plaintiff’s Mombasa branch, which he said allowed payment of the arrears in instalments, and its head office, which insisted on payment in full; of calls from auctioneers; and, ultimately, of the repossession of what he described as the only functional truck and trailer. He put the earnings of each unit at approximately Kshs. 950,000/= per month and said that no account of the sale of the repossessed units was ever rendered to him. He was not cross-examined.
Submissions
15. At the close of the trial, the parties were directed to file written submissions. The plaintiff’s submissions are dated 18 July 2025. Counsel framed the case as one of “a borrower insisting that the lender must underwrite the borrower’s business.” On the plaint, counsel submitted that the loan is admitted and that, where a loan is advanced and not repaid, judgment follows as a matter of course unless a defence extinguishing the debt is established (See Sidian Bank Limited (formerly K-Rep Bank) v Microhouse Technologies Limited [2017] KEHC 4620 (KLR). On the moratorium defence, counsel pointed out that the whole of clause 12 of the letter of offer deals with events of default entitling the plaintiff to call up the security, and wondered how a clause conferring rights on the plaintiff could be read as benefiting the 1st defendant. Counsel relied on Khunaif Trading Company Limited v Equity Bank Limited & Trevor Auctioneers [2015] KEHC 6258 (KLR) for the proposition that an accident befalling a financed vehicle does not absolve the borrower of its payment obligations, and on Seahawk General Logistics Limited & 2 others v Stanbic Bank Kenya Limited [2021] KEHC 7813 (KLR) for the proposition that an accommodation not mandated by the contract is gratuitous and a lender cannot be faulted for insisting on the strict terms of its bargain.
16. On the insurance defence, counsel made three points: first, that repayment of the facility was never pegged on the proceeds of any insurance claim, citing this court’s ruling in Bakhsons Distributors Limited v Gulf African Bank & another [2025] KEHC 2661 (KLR); secondly, that correspondence in the plaintiff’s bundle showed the broker could not lodge the claim while premiums – an obligation of the 1st defendant – remained outstanding; and thirdly, that the insurance contract is between the 1st defendant and the insurer, so that the doctrine of privity forecloses any attempt to hold the plaintiff liable for the insurer’s conduct. As against the 2nd and 3rd defendants, counsel submitted that a guarantee is a contract separate and distinct from the principal contract; that all that is required to attach liability to a guarantor is default by the principal and a demand, citing Kenindia Assurance Company Limited v First National Finance Bank Limited [2008] KECA 91 (KLR); and that the guarantors could not adopt the principal debtor’s defences as though they were principals. Counsel invited the court to act on the statement of account showing Kshs. 18,855,825.03 owing as at 19 September 2024, section 176 of the Evidence Act rendering it prima facie evidence of its contents, and to enter judgment in that sum with profits and default damages at 13% and 20% per annum respectively from 19 September 2024.
17. On the counterclaim, counsel submitted that no law obliges a secured creditor to obtain a court order before repossessing its security; that section 67 of the Movable Property Security Rights Act empowers repossession without resort to court; that the statutory notice was issued and went unheeded; and that contractual repossession is recognised even without notice, citing Diamond Trust Bank Kenya Limited v Amudede Company Limited [2018] KEHC 4210 (KLR). The sales of 9 May and 15 June 2024, counsel submitted, preceded the orders of 8 July 2024, so that the plaintiff could not sensibly be accused of acting in defiance of any court order – there was none when the units were repossessed and sold. Finally, counsel submitted that the claim for Kshs. 980,000 per month is a claim in special damages which must be specifically pleaded and strictly proved, citing David Bagine v Martin Bundi [1997] KECA 54 (KLR), and that the single month’s statement of a personal bank account of the 3rd defendant produced by the defendants, when the trucks belonged to the 1st defendant, proves nothing remotely approaching the pleaded figure.
18. In their written submissions filed in reply, the defendants open with the law of pleadings and of contract: citing Vishva Stones Supplies Co. Ltd v RSR Stones (2006) Ltd, Civil Appeal No. E308 of 2020, counsel reminds the court that each party is bound by its own pleadings and that the court is itself bound by them; and citing Hydro Water Well (K) Ltd v Gilbert Muthendi Wambua & 2 others, Civil Suit No. E212 of 2019, that the remedies the courts grant in contract are designed to give effect to what the parties voluntarily undertook. Counsel emphasises that while PW1 was cross-examined at length and not re-examined, DW1 was not cross-examined at all. He then catalogues what he says is not in dispute: that the letter of offer of 2 December 2022 is the only lending agreement between the parties and contains all their contracted rights and obligations; the advance of Kshs. 26,880,000 and the purchase of the three trucks and trailers; the two accidents of June and October 2023; the repossession of 2 February 2024 during the pendency of this suit; that the insurer and the brokers were approved by the plaintiff and that the 1st defendant paid the premiums by instalments through the plaintiff; the guarantees; and regular instalments until October 2023. Three issues are framed: whether the plaintiff made it difficult for the defendants to pay instalments beyond October 2023; whether the defendants failed to pay the insurance premiums; and whether they were entitled to a moratorium upon the occurrence of the accidents.
19. On the first and third of those issues, counsel submits that the plaintiff knew the loan was to be repaid from the earnings of the trucks, a matter he says PW1 admitted; that under clause 7.1 of the letter of offer the plaintiff and the 1st defendant were to be registered as joint owners of the units; that under clause 13.14 the plaintiff was itself obliged to pay the insurance premiums on the 1st defendant’s behalf and recover them from it; and that clause 12.8, though a sub-clause of the events-of-default article, “as drafted benefits the 1st Defendant” because “it gives a moratorium to them in the event of default.” Counsel points to the defendants’ written request for a moratorium dated 16 August 2023, produced as defence exhibit 5, which the plaintiff neither answered nor granted and for which refusal it has never supplied a reason; invokes the definition of a moratorium in Black’s Law Dictionary and the observation in Cheyne Row Investments Ltd v Malde Holdings Ltd, Insolvency Cause No. E030 of 2021 that a moratorium provides “a breathing space”; and submits that the refusal amounted to forcing the defendants into default, so that the plaintiff approbates and reprobates and comes to court with unclean hands, its authorities, viz. Sidian Bank Limited (formerly K-Rep Bank) v Microhouse Technologies Limited (supra), Khunaif Trading Company Limited v Equity Bank Limited & Trevor Auctioneers (supra) and Seahawk General Logistics Limited & 2 others v Stanbic Bank Kenya Limited (supra) being distinguishable. On the premiums, counsel submits that the plaintiff’s pleaded case, that unpaid premiums caused the insurer to decline the claims, collapsed in cross-examination: the brokers’ statement showed a balance of Kshs. 956,416/= as at 7 June 2023, reduced to Kshs. 456,416/= by 5 October 2023, which the Pesalink transfer of Kshs. 457,000/= on 15 January 2024, defence exhibit 3, settled in full; PW1 admitted that the insurer in fact settled one claim, which counsel says gives the lie to the refusal narrative; and on the defendants’ reading of clauses 7.1 and 13.14 the premium obligation was in any event the plaintiff’s. Counsel asserts that the insurer’s compensation was deposited with the plaintiff but that no credit was passed to the defendants.
20. In direct answer to the plaintiff’s submissions, counsel takes the pleading point in both directions: the court cannot enter judgment for Kshs. 25,409,404.83, which the plaintiff’s own statement of account contradicts; nor for Kshs. 18,855,825.03, which counsel characterises as a new prayer appearing nowhere in the plaint, raised for the first time through submissions without any amendment, and which the defendants had no opportunity to interrogate, citing Vishva Stones and Kenya Women Finance Trust v Square Deal Kenya Ltd, Civil Appeal No. 36 of 2021. The distinction the plaintiff draws between the principal debtor and the guarantors is said not to be borne out by the plaint as drawn, and the Kenindia case is distinguishable. On the counterclaim, counsel submits that clause 6 of the letter of offer, which deals with repayment, confers no express right of repossession; that by electing to sue for recovery of the loan the plaintiff waived its self-help remedy of repossession and sale, and by dint of clause 6.5 ought to have awaited judgment and levied execution; and that the repossession and sale of the 1st defendant’s only functional unit during the pendency of this suit offended the doctrine of lis pendens – pendente lite nihil innovetur – citing Shavji Naran Virji v Ogla Jemel Barng’etuny [2021] eKLR. Finally, on damages, counsel submits that DW1’s evidence of earnings of Kshs. 980,000/= per month, supported by the bank statement produced as defence exhibit 8, went wholly unchallenged – no cross-examination, no objection to production, no question as to authenticity – and that it is not open to the plaintiff to attack through submissions evidence it declined to test at trial.
Issues for determination
21. From the pleadings, the evidence and the submissions, the questions that fall for determination are, first, whether the defendants were entitled under the letter of offer to a moratorium upon the occurrence of the accidents; secondly, whether the plaintiff’s claim is otherwise answered by the events surrounding the insurance of the financed units; thirdly, whether the plaintiff has proved the sum claimed against the 1st defendant and against the 2nd and 3rd defendants as guarantors; fourthly, whether the defendants have proved their counterclaim; and finally, what orders should be made on reliefs and costs.
Whether the defendants were entitled to a moratorium
22. It is common ground that the facility was advanced, that the trucks and trailers were purchased with it, and that instalments ceased flowing after 19 September 2023. The defendants’ answer to what would otherwise be a straightforward claim in debt rests, first and foremost, on clause 12.8 of the letter of offer. The clause reads:
“A moratorium is declared in respect of any Financial Indebtedness of the Customer or a member of the Group.”
23. The clause does not stand alone. It is one of a series of clauses under article 12 of the letter of offer, an article dealing with events of default. Each clause in that article describes an event which, should it occur, constitutes a default entitling the plaintiff to exercise its remedies, including calling up the facility and realising its security. Read in that context, as it must be, clause 12.8 addresses the situation in which a moratorium is declared – by operation of law, in insolvency, or under some arrangement between the customer and its creditors – in respect of the customer’s financial indebtedness, and stipulates that such a declaration is itself an event of default. The clause is, in short, a shield for the lender; it is not a sword for the borrower.
24. The construction the defendants urge inverts the provision. On no sensible reading does the clause oblige the plaintiff to grant a repayment holiday, still less confer upon the customer a unilateral right to suspend instalments whenever a financed unit is involved in an accident. The clause says nothing of accidents, nothing of insurance, and nothing of suspension of payment. The defendants did not point to any other provision of the letter of offer that does. A court of law cannot rewrite a contract for the parties or import into it terms they did not make for themselves: National Bank of Kenya Ltd v Pipe Plastic Samkolit (K) Ltd & another [2002] 2 EA 503. The 3rd defendant’s further assertion that a moratorium in these circumstances is “standard practice among financial institutions” was just that – an assertion. No evidence of any such practice, let alone a practice of such notoriety and certainty as to be imported into a written contract, was placed before the court.
25. If confirmation were needed that the defendants themselves never understood the contract in the sense they now urge, it is supplied by their own contemporaneous conduct. The defendants rely on their written request of 16 August 2023, produced as defence exhibit 5, by which they asked the plaintiff for a moratorium – a request counsel describes as made “in exercise of their right under Clause 12.8.” The document is, however, what it calls itself: a request. On 21 August 2023, in answer to the branch manager’s follow-up on the arrears, the 3rd defendant attributed the default to a client of the 1st defendant who had not paid, promised to clear the arrears as soon as possible, and then wrote: “We would also like to hear from you regarding the waiver of the 3 installment for KDL 503D.” One does not request a waiver, or ask to “hear from” the other party about it, in respect of instalments one is contractually entitled to withhold; one simply withholds them and points to the clause. The earlier exchange of 15 June 2023 is to the same effect: pressed for the overdue premium and instalment, the 1st defendant’s response was that it was awaiting remittances from its own clients – not that it was entitled to a moratorium. And the complaint, pressed in submissions, that the plaintiff never responded to the request or supplied reasons for declining it, itself concedes the point: a party with a contractual entitlement does not await the other’s response; a supplicant does. The moratorium plea has every appearance of an afterthought constructed for the purposes of this litigation.
26. The law on the point is not in doubt. In Khunaif Trading Company Limited v Equity Bank Limited & Trevor Auctioneers [2015] KEHC 6258 (KLR), the court, faced with a borrower whose financed vehicles could not generate income, adopted the holding in Joseph Chege Gitau v CFC Bank Limited [2008] eKLR that:
“… the fact that the motor vehicle had mechanical problems did not absolve the Appellant from his obligation to make the monthly payments, nor did it deny the Respondent its right to repossess the motor vehicle. It is evident that the agreement provided the Respondent the right to repossess the motor vehicle as long as there was default in payment of the monthly installments.”
27. In those circumstances the defendants could plead with the plaintiff to indulge them – as, on the evidence, they did – but they could not demand indulgence as of right. As Mabeya J. put it in Seahawk General Logistics Limited & 2 others v Stanbic Bank Kenya Limited [2021] KEHC 7813 (KLR):
“Whether or not to agree to accommodate the plaintiffs was in the discretion of the respondent. The respondent was entitled to insist on its pound of flesh. In so far as the accommodation being sought was not mandatory under the contract between the parties, but only gratuitous, the respondent could not be faulted for insisting on a strict application of the terms of the contract between it and the plaintiffs.”
28. The defendants’ resort to the dictionary meaning of a moratorium, and to the observation in Cheyne Row Investments Ltd v Malde Holdings Ltd (supra) that a moratorium affords “a breathing space,” does not advance the matter. What a moratorium is has never been in doubt; the question is who, under this contract, was entitled to one and from whom. Counsel’s formulation – that clause 12.8 “as drafted benefits the 1st Defendant” because “it gives a moratorium to them in the event of default” – lays the fallacy bare. On that reading, the very occurrence of a default would entitle the defaulting borrower to stop paying: the deeper the default, the stronger the entitlement. A construction that rewards default with immunity from the obligation to pay is commercially absurd, and clauses in an events-of-default article are not to be read as self-destructing in that fashion. Nor is there anything in the charge that the plaintiff, in declining the indulgence, approbates and reprobates or comes to court with unclean hands: both accusations assume the very entitlement I have found does not exist. A lender that declines a favour it never promised does nothing inequitable.
29. Nor can the defendants find refuge in the alleged indulgence of the plaintiff’s Mombasa branch as against its head office. Even taking that evidence at its highest, an arrangement to vary the written terms of the facility – to accept the arrears by instalments or to suspend repayment – would itself have had to possess the characteristics of a valid contract, the parties ad idem and the variation supported by consideration: Kenya Breweries Limited v Kiambu General Transport Agency Ltd [2000] eKLR. No concluded variation was pleaded, let alone proved. The plea of “legitimate expectation” fares no better; it is a doctrine of public law which has no purchase in the enforcement of a private commercial bargain, and, in any event, no representation by the plaintiff capable of founding any expectation was established. The first issue must accordingly be answered against the defendants: they were not entitled to any moratorium, their failure to pay instalments after 19 September 2023 was a default, and the plaintiff committed no breach in declining the indulgence sought.
Whether the insurance events answer the claim
30. The second strand of the defence is that repayment ought to have awaited, or come out of, compensation from the insurer, and that the plaintiff is to blame for the non-compensation. The short answer is that the 1st defendant’s obligation to repay the facility was never pegged on the proceeds of any insurance claim. The letter of offer obliged the 1st defendant to pay forty-eight monthly instalments; it did not make those instalments conditional on the fortunes of a claim against a third party. This court had occasion to make the same point, as it happens in litigation involving this very plaintiff, in Bakhsons Distributors Limited v Gulf African Bank & another [2025] KEHC 2661 (KLR): a borrower who has admittedly defaulted cannot turn around and blame the lender for initiating recovery, or attribute its default to the failure of a third-party source of funds, unless it demonstrates that repayment of the loan was pegged on that source. No such demonstration was made or attempted here.
31. Secondly, the contract of insurance was between the 1st defen
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