Award winning conservationist Paula Kahumbu and her brother Dominic have inherited a decades-long war their parents waged against the National Bank of Kenya to stop the auction of a family home as the lender looks to recover a loan that has now grown to more than Sh228 million.
Ms Kahumbu’s family has since 1984 successfully through court orders thwarted attempts by NBK to auction their home in Mwitu Estate in Nairobi’s Karen suburb, even as the lender’s contested loan claim continues to grow on account of interest.
For 37 years, NBK has seen attempts to auction the land change rapidly.
But for now, the lender seems to have had the last laugh as High Court judge David Majanja last week dismissed a last-ditch attempt by Ms Kahumbu and her brother, Dominic, to stop a planned auction of the prime property in Karen.
The auction was initially advertised for January 28, 2020 but the court case and its effects have now seen the planned sale moved to February 16, 2021.
NBK issued a loan to Schemes Limited, a company owned by John Francis Kahumbu, and his Karen home was used as security for the facility. The loan was issued in the form of a mortgage.
Fight for matrimonial property
In 1984, Mr Kahumbu filed what would be the first of at least five cases his family would use to save their home.
After Mr Kahumbu died, his wife Roseline Mary Kahumbu took over the fight for the matrimonial property.
She filed two cases against NBK. In one of the cases, the Kahumbu matriarch wanted the property discharged as security, arguing that her husband did not seek her consent before offering the Karen home in return for a loan.
Under Kenyan law, for matrimonial property to be used as loan security, both spouses must give their consent to the lender. If one spouse contests the consent issue successfully, the lender could be left to lose all monies should the borrower default on payment.
On March 23, 2017 High Court judge Fred Ochieng agreed with Roseline by stating that the mortgages were valid, but that the bank’s rights could not be placed above her interest.
The judge agreed that Roseline had not given consent to have the property used as security for a loan to her husband.
Roseline died in 2019. Shortly after her death, NBK renewed its attempt to auction the Karen land to recover Sh228 million.
On December 19, 2019 Paula and Dominic filed a fresh court application, accusing NBK of going against Justice Majanja’s 2017 decision.
When their mother filed a case to stop auction in 2001, the loan amount claimed by NBK was Sh182 million. The heart of the Kahumbus application was that no decree had been sought after the 2017 judgment hence there was not ground for execution.
A decree is a document issued by the courts after judgment which allows the case winner to execute a judgment.
The Kahumbus insisted that neither party had extracted a decree from the High Court hence no execution could be done in the absence of the document.
But Justice Majanja has now ruled that the attempt to stop auction on account of the decree was premature.
As the 2017 case was filed by the Kahumbus, the responsibility of decree extraction fell on them.
NBK argued that it gave Paula and Dominic a chance to restructure the debt and save the Karen home from auction but that they failed to take up the opportunity.
