BY SAM ALFAN.
A local bank has been granted a major reprieve in a leasing tender row with a motor vehicle company.
High Court Judge Wilfrida Okwany declined an application by Vehicle and Equipment Leasing Ltd (VAELL) to compel NCBA bank to pay Sh291 million.
The judge said the firm did not provide sufficient proof that the bank had breached an agreement entered in 2014 for the finance of the vehicles.
The firm had borrowed Sh232 million from the bank to purchase over 200 vehicles from Toyota Kenya.
The vehicles were later leased to Tsushi Capital Kenya Ltd, which then leased them to the government. However, a dispute arose and the firm could not access it’s bank account.
The bank also failed to honour instructions on payment even when the account had sufficient amounts. VAELL said it suffered on accrued charges when the loan was not serviced.
The court heard that the lender was oppressive and aggressively detaining the company’s funds and freezing its accounts and applying charges on the basis of insufficient funds.
However, Justice Okwany dismissed the claim saying VAELL failed to prove the claims it made against the lender.
“I agree with counsel for the bank that the onus of proof was on the plaintiff and it failed to discharge it,” judge Okwany said.
The vehicle leasing firm had argued that as a result of the bank’s conduct, it suffered losses and the vehicles were later sold at low prices.
The firm said the vehicles were returned by police to Toyota in September 208 under unclear circumstances, and the bank allegedly frustrated the sale of the vehicles, which continued to depreciate yet the bank continued to pile interest on the loan.
The firm had sought compensation of Sh187 million arguing that the vehicles, which were disposed of in 2019, were undervalued.
The company also sought the cost of insurance of Sh50 million plus a refund of Sh382 million allegedly debited to the account and which were unlawfully withdrawn.
Further, VAELL accused the bank of erroneously reporting it to the credit reference Bureau, denting its reputation. The court, however, dismissed the claim stating that the lender was under statutory obligation to report.
The court ruled that for a period of three years, the parties had treated the account as a collection account and VAEL could not access it.
