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KENYA COMMERCIAL BANK LIMITED v. BENJOH AMALGAMATED LIMITED & MUIRU COFFEE ESTATE LIMITED

(1998) JELR 100344 (CA)

Court of Appeal  •  civ app 276 of 97  •  10 Mar 1998  •  Kenya

Coram
Philip Kiptoo Tunoi, Samuel Elikana Ondari Bosire, Richard Otieno Kwach

Judgement

JUDGMENT OF THE COURT

Benjoh Amalgamated Limited (the first respondent) and Muiri Estate Limited (the second respondent) sued Kenya Commercial Bank Limited (the appellant) in the superior court claiming inter alia what was referred to in the plaint filed on 4th Mcaormcphl,e ti1o99n2 ofas th"ae contract by the defendant and/or damages for breach thereof."

The appellant lent the respondents a sum of Kshs.23,175,000/=, which was secured by a charge over two pieces of land namely L.R. No. 1211/1 and 12411/2 Kiambu. Upon default, the appellant moved to realise the security and the respondent thereupon filed the suit to forestall that exercise. The appellant did not file a defence but on 4th May, 1992, a consent judgment was recorded before Githinji J, in the presence of counsel for both parties marking the suit settled in the following terms:-

"(a) The plaintiffs to pay the total outstanding sums, principal and interest, to the defendant on or before 31st July, 1992.

(b) In default, the defend…

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