ERICK KIMINGICHI WAPANG'ANA & MAGHARIBI MACHINERIES LIMITED V. EQUITY BANK LIMITED & ANTIQUE AUCTIONEERS AGENCIES

JUDGMENT OF THE COURT

The dispute giving rise to this appeal relates to an overdraft facility of Kes.7.8 million that the 1^st respondent extended to the appellants in December, 2009. The facility was in the form of a letter of credit that the 1^st respondent opened to enable the appellants to purchase 100 units of TVS motor bikes from Car and General (Trading) Ltd (Car and General). The facility was secured by a legal charge over the appellants’ pieces of land known as Title No. Ebukusu/South Kanduyi/13584, and Title Nos. Ebukusu/South Kanduyi/816 and 2741 as well as a chattels mortgage over the appellants’ moveable assets.

The appellants claim that Car and General delivered to them only 62 units. They further claim that despite advising the 1^st respondent of that delivery and instructing it to disburse only Kes.4 million being the value of those 62 units, the 1^st respondent went ahead and disbursed the entire sum of Kes.7.8 million and debited the amount to the appellant’s account. To m…