' Introduction and Background
1. The applicant, by way of an application dated 14th May 2025, prays for orders directing the respondent to regularize the loan agreement between the parties so as to reflect the loan amount and repayment installments in Kenya Shillings, in compliance with a directive issued by the Competition Authority of Kenya (CAK). The applicant further seeks that the respondent be compelled to recalculate the outstanding loan balance by factoring in all excess payments made since the inception of the loan, with such overpayments credited toward the principal.
2. The application is supported by the affidavit of Hussein Said sworn on the same date. The respondent opposes the application through a replying affidavit sworn by Erick Omondi Onditi on 27th May 2025.
Analysis and Determination
3. It is not in dispute that the loan advanced to the applicant under the asset financing agreement dated 25th May 2023 was denominated in USD 6,523.82, which was equivalent to Kshs. 900,000/= at the time of disbursement. The loan schedules covering the period between 27th June 2023 and 27th May 2025, as well as the accompanying statements, are tabulated in USD, despite the fact that repayments have been made in Kenya Shillings. Interest payable was also calculated in USD, notwithstanding that the facility was disbursed in KES.
4. This arrangement, according to the applicant, resulted in unpredictable repayment amounts due to fluctuations in the foreign exchange rate.
5. It is evident from the record that complaints of a similar nature were lodged before the CAK. The applicant submits that he was among the complainants who sought redress from the respondent through the Authority, asserting that he had fully repaid his loan. While there is no evidence that the CAK’s decision dated 4th October 2024 issued specific orders in respect of the applicant’s individual claim, the Authority did direct the respondent to amicably resolve all pending complaints, address future complaints within stipulated timelines, and refrain from engaging in similar conduct going forward.
6. There is no indication before me that the CAK’s decision has been reviewed or set aside. That is certainly not the subject of this Ruling. Notably, the Authority found that the respondent, Mogo, had violated provisions of the Competition Act by making false or misleading representations and engaging in unconscionable conduct in the issuance and administration of loan products to complainants. The respondent’s submission that the applicant had no issues with the loan terms and repayment schedule is therefore inconsistent with the record, particularly given the applicant’s complaint before the CAK.
7. In its replying affidavit, the respondent states that the application has been overtaken by events, asserting that it has since converted the loan account into Kenya Shillings and, without prejudice, applied any excess payments made due to exchange rate fluctuations. It also indicates willingness to convert the remaining balance into KES, ostensibly in compliance with the CAK directive.
8. However, upon examining the payment schedule and loan statement dated 27th May 2025 provided by the respondent, it is clear that the conversion is not complete. The statements still reflect principal and interest amounts calculated in USD, against payments received in KES, as recently as 27th March 2025. This undermines the assertion that the account has been fully regularized.
9. The core issue raised in the application is the need for the respondent to regularize the loan agreement and render a complete and transparent statement of account. Only upon such regularization can the parties ascertain whether the loan has been fully repaid and whether any credit balance exists.
Conclusion
10. In light of the foregoing, I find that the applicant has raised legitimate concerns regarding the currency denomination of the loan and the accuracy of the repayment records. I am convinced that a comprehensive reconciliation and regularization of the loan account is necessary before any suspension of the facility.
Disposition
11. Accordingly, the application dated 14th May 2025 is allowed and the following orders hereby issue;
i. The respondent shall regularize the loan agreement between the applicant and the respondent to reflect the loan amount and installments in Kenya Shillings, in compliance with the directive issued by the Competition Authority of Kenya within the next thirty (30) days of this Ruling.
ii. The respondent shall equally recalculate the outstanding loan balance by factoring in all excess payments made by the applicant since the commencement of the loan agreement on 25th May 2023, with such excess payments being credited towards the principal amount, within thirty (30) days of this Ruling.
iii. The respondent shall bear the costs of this application, which are awarded to the applicant.
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1. The applicant, by way of an application dated 14th May 2025, prays for orders directing the respondent to regularize the loan agreement between the parties so as to reflect the loan amount and repayment installments in Kenya Shillings, in compliance with a directive issued by the Competition Authority of Kenya (CAK). The applicant further seeks that the respondent be compelled to recalculate the outstanding loan balance by factoring in all excess payments made since the inception of the loan, with such overpayments credited toward the principal.
2. The application is supported by the affidavit of Hussein Said sworn on the same date. The respondent opposes the application through a replying affidavit sworn by Erick Omondi Onditi on 27th May 2025.
Analysis and Determination
3. It is not in dispute that the loan advanced to the applicant under the asset financing agreement dated 25th May 2023 was denominated in USD 6,523.82, which was equivalent to Kshs. 900,000/= at the time of disbursement. The loan schedules covering the period between 27th June 2023 and 27th May 2025, as well as the accompanying statements, are tabulated in USD, despite the fact that repayments have been made in Kenya Shillings. Interest payable was also calculated in USD, notwithstanding that the facility was disbursed in KES.
4. This arrangement, according to the applicant, resulted in unpredictable repayment amounts due to fluctuations in the foreign exchange rate.
5. It is evident from the record that complaints of a similar nature were lodged before the CAK. The applicant submits that he was among the complainants who sought redress from the respondent through the Authority, asserting that he had fully repaid his loan. While there is no evidence that the CAK’s decision dated 4th October 2024 issued specific orders in respect of the applicant’s individual claim, the Authority did direct the respondent to amicably resolve all pending complaints, address future complaints within stipulated timelines, and refrain from engaging in similar conduct going forward.
6. There is no indication before me that the CAK’s decision has been reviewed or set aside. That is certainly not the subject of this Ruling. Notably, the Authority found that the respondent, Mogo, had violated provisions of the Competition Act by making false or misleading representations and engaging in unconscionable conduct in the issuance and administration of loan products to complainants. The respondent’s submission that the applicant had no issues with the loan terms and repayment schedule is therefore inconsistent with the record, particularly given the applicant’s complaint before the CAK.
7. In its replying affidavit, the respondent states that the application has been overtaken by events, asserting that it has since converted the loan account into Kenya Shillings and, without prejudice, applied any excess payments made due to exchange rate fluctuations. It also indicates willingness to convert the remaining balance into KES, ostensibly in compliance with the CAK directive.
8. However, upon examining the payment schedule and loan statement dated 27th May 2025 provided by the respondent, it is clear that the conversion is not complete. The statements still reflect principal and interest amounts calculated in USD, against payments received in KES, as recently as 27th March 2025. This undermines the assertion that the account has been fully regularized.
9. The core issue raised in the application is the need for the respondent to regularize the loan agreement and render a complete and transparent statement of account. Only upon such regularization can the parties ascertain whether the loan has been fully repaid and whether any credit balance exists.
Conclusion
10. In light of the foregoing, I find that the applicant has raised legitimate concerns regarding the currency denomination of the loan and the accuracy of the repayment records. I am convinced that a comprehensive reconciliation and regularization of the loan account is necessary before any suspension of the facility.
Disposition
11. Accordingly, the application dated 14th May 2025 is allowed and the following orders hereby issue;
i. The respondent shall regularize the loan agreement between the applicant and the respondent to reflect the loan amount and installments in Kenya Shillings, in compliance with the directive issued by the Competition Authority of Kenya within the next thirty (30) days of this Ruling.
ii. The respondent shall equally recalculate the outstanding loan balance by factoring in all excess payments made by the applicant since the commencement of the loan agreement on 25th May 2023, with such excess payments being credited towards the principal amount, within thirty (30) days of this Ruling.
iii. The respondent shall bear the costs of this application, which are awarded to the applicant.
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