Samuel Ndiba Kihara & another v Housing Finance Company of Kenya Limited & 2 others [2020] eKLR Case Summary

Court
High Court of Kenya at Nairobi, Milimani Law Courts, Commercial and Tax Division
Category
Civil
Judge(s)
F. Tuyiott
Judgment Date
September 21, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3
Explore the 2020 eKLR case summary of Samuel Ndiba Kihara & another v Housing Finance Company of Kenya Limited & 2 others, highlighting key legal findings and implications for similar cases in Kenya.

Case Brief: Samuel Ndiba Kihara & another v Housing Finance Company of Kenya Limited & 2 others [2020] eKLR

1. Case Information:
- Name of the Case: Samuel Ndiba Kihara & Virginia Nduta Ndiba v. Housing Finance Company of Kenya Limited & Others
- Case Number: HCCC NO. 638 OF 2006
- Court: High Court of Kenya at Nairobi, Milimani Law Courts, Commercial & Tax Division
- Date Delivered: 21st September 2020
- Category of Law: Civil
- Judge(s): F. Tuyiott
- Country: Kenya

2. Questions Presented:
The court must resolve whether to review the order for taking accounts issued on 19th July 2019, particularly regarding the scope of the accounts to be taken, the appointment of independent accountants, and whether the accounts of the second and third defendants should be included in the review.

3. Facts of the Case:
The plaintiffs, Samuel Ndiba Kihara and Virginia Nduta Ndiba, filed a case against Housing Finance Company of Kenya Limited (1st Defendant), Robert Ngunyi Njura (2nd Defendant), and Nancy Wanjiku Mbugua (3rd Defendant). The case arose from a dispute regarding mortgage accounts that the plaintiffs contended were subject to unlawful interest rates unilaterally imposed by the 1st Defendant. Specifically, the plaintiffs alleged that the interest rate was raised from 22% to 26% without their consent and that a penalty interest of 1.5% per month was also imposed.

4. Procedural History:
The court initially ruled on 19th July 2018, ordering that an independent accountant be appointed to take accounts between the plaintiffs and the defendants, with specific provisions for costs. The plaintiffs later filed a motion on 7th November 2019 seeking a review of this order, arguing that the parties could not agree on the mode and scope of the account-taking process. The defendants opposed this application, and the court considered both sides before delivering its ruling.

5. Analysis:
- Rules: The court's ruling was based on its previous judgment, which found that the 1st Defendant had imposed unlawful interest rates. The relevant legal principles were derived from contract law and statutory regulations governing mortgage agreements.
- Case Law: The court referenced its own prior findings regarding the unlawful interest rates as the basis for the account-taking order. The determination centered on whether the increase in interest was lawful and whether it affected the plaintiffs' indebtedness.
- Application: The court concluded that the scope of the account-taking process was adequately defined in its previous judgment. It rejected the plaintiffs' request to expand the scope to include the accounts of the 2nd and 3rd defendants, emphasizing that they were purchasers for value without notice and that any challenge to its previous findings should be via appeal, not review.

6. Conclusion:
The court dismissed the plaintiffs' application for review, affirming that the order for taking accounts was appropriate and that the scope did not require expansion to include the other defendants. The ruling reinforced the original findings regarding the unlawful interest rates and clarified the procedure for appointing accountants in the account-taking process.

7. Dissent:
There were no dissenting opinions noted in the ruling.

8. Summary:
The High Court of Kenya ruled against the plaintiffs’ application for review, maintaining the order for taking accounts as initially set forth. This decision underscores the importance of adhering to procedural rules in civil litigation and clarifies the boundaries of judicial review in relation to previous rulings. The case highlights issues surrounding unlawful interest rates in mortgage agreements and the complexities of accounting disputes in civil cases.

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