Case ID:171706

Juvenalis Pius Ottaro v Housing Finance Company of Kenya Ltd & another [2021] eKLR

Case Metadata

Case Number:

Civil Case 77 of 2013

Parties:

Juvenalis Pius Ottaro v Housing Finance Company of Kenya Ltd & Duncan Gitonga Kibe

Date Delivered:

26 Feb 2021

Case Class:

Civil

Court:

High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Case Action:

Judgment

Judge(s):

Maureen Akinyi Odero

Citation:

Juvenalis Pius Ottaro v Housing Finance Company of Kenya Ltd & another [2021] eKLR

Court Division:

Commercial Tax & Admiralty

County:

Nairobi

Case Outcome:

Suit partially allowed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

COMMERCIAL & TAX DIVISION

CIVIL CASE NO. 77 OF 2013

JUVENALIS PIUS OTTARO.......................................................................PLAINTIFF

VERSUS

HOUSING FINANCE COMPANY OF KENYA LTD........................1

ST

DEFENDANT

DUNCAN GITONGA KIBE.................................................................2

ND

DEFENDANT

JUDGMENT

1. The Plaintiff herein

JUVENALIS PIUS OTTARO

filed in Court the Plaint dated

6

th

March 2013

seeking the following orders:-

“(a) A declaration that the sale and transfer of Title No.

8285/406 Nairobi was illegal and contrary to the law and the cancellation of the same, and a declaration that the 1

st

Defendant mishandled the Plaintiffs mortgage account and thereby clogged the equity of redemption and that the sale was unlawful.

(b) Damages

(c) A refund of Kshs. 1,732,590.00.

(d) Special Damages Kshs. 220,400/-.

(e) Costs and interest.”

2. The 1

st

Defendant

HOUSING FINANCE COMPANY OF KENYA LTD (‘HFCK’

) filed a Defence dated

14

th

May 2018

praying that the Plaintiffs suit against the Bank be dismissed in its entirety with costs. Likewise the 2

nd

Defendant

DUNCAN GITONGA KIBE

filed his Statement of Defence dated

22

nd

July 2013

praying for the dismissal of the Plaintiffs suit against him with costs.

3. The hearing of the suit commenced before this Court on

1

st

July 2019

. The Plaintiff called three (3) witnesses in support of its case. The 1

st

Defendant called one (1) witness and the 2

nd

Defendant also called one (1) witness.

THE EVIDENCE

4. The Plaintiff told the Court that he is a former employee of the former

Nairobi City Council

who retired in the year

1997

. The Plaintiff relied entirely upon his Amended written Statement dated

3

rd

November 2014

. The Plaintiff stated that in the year

1997

, he was desirous of purchasing the property known as

Title LR No. 8285/406

(hereinafter “

the suit property

.”). That the building was a five-storeyed residential property located in the

Kariobangi

area of

Nairobi

, with several units (rooms) for rental. The intention of the Plaintiff was to utilize the rental income earned from the suit property to service the loan facility.

5. The purchase price was agreed at

Kshs. 2,590,000/-.

The Plaintiff approached the 1

st

Defendant

HFCK

for financing in order to purchase the suit property. The Plaintiff states that the 1

st

Defendant advanced him a loan of

Kshs. 2,590,000/-

and that the said loan facility was secured by a charge over the suit property. The Plaintiff further stated that it was agreed between the parties that the loan facility was to be repayable within a period of

ten (10) years

at an interest of

29%

per annum by way of monthly payments of

Kshs. 67,739/-

6. The Plaintiff states that upon being advanced the monies he immediately commenced servicing the facility upon the agreed terms. However the Plaintiff alleges that 1

st

Defendant began to escalate the amount payable each month without any notification whatsoever to the Plaintiff. That the Bank arbitrarily revised the interest rates and that efforts by the Plaintiff to obtain information from the Bank were unsuccessful and thus his concerns were never addressed.

7. The Plaintiff goes on to state that following arbitrary revision of interest rates and heaping of unexplained charges onto his loan account the amount payable became huge and astronomical and the loan account fell into arrears. That the Bank on

25

th

June 2008

notified the tenants residing on the suit property that a Receiver / Manager

M/S CRYSTAL VALUERS LTD

had been appointed and would be collecting rents from the building. The Plaintiff therefore understood that all the rental income paid to the Receiver / Manager would be transmitted to the Bank to pay off his loan facility. The Plaintiff says that at the time the Receiver / Manager took over the building he was realizing an amount of

Kshs. 95,000/-

per month as rent. The Plaintiff states that he advised his tenants to co-operate with the Receiver / Manager.

8. To the Plaintiffs great surprise on

10

th

September 2011

, he was advised through a letter which had been delivered to the local Chief that the suit property had been sold to one

Duncan Gitonga Kibe

(the 2

nd

Defendant). That the purchaser (2

nd

Defendant) had vide a letter dated 1

st

September 2011 given a notice to all tenants asking them to vacate the premises to allow for renovations to be undertaken on the suit property. (Annexed at page

57

of the Plaintiffs List of Documents filed on 26

th

July 2019). The Plaintiff says that the said letter dated

8

th

September 2011

from one

Geoffrey Kimaita

a General Manager of the Bank notified him that the suit property had been sold by way of private treaty in

August 2011

for the sum of

Kshs. 4,500,000/-

but that there remained a shortfall of

Kshs. 19,302,601.65

as at

30

th

September 2011

. The Bank demanded that the said shortfall be settled failing which recovery proceedings would be instituted against him.

9. The Plaintiff then proceeded to the

Department of Lands

and conducted a Search which revealed that suit property had indeed been sold and transferred to the 2

nd

Defendant. He then instructed a firm of Valuers

M/S NJIHIA NJOROGE & ASSOCIATES

to conduct a valuation on the suit property. In their report dated

13

th

September 2011

the valuers returned an open market value of

Kshs. 18,000,000/-

for the suit property.

10. The Plaintiff was aggrieved by the sale of the suit property which he terms as illegal and unprocedural as he was not issued with the requisite notification of sale under

Section 90

of the

Land Act

. According to the Plaintiff no valuation was undertaken before the sale of the suit property, resulting in the sale of the property at a greatly undervalued price. The Plaintiff further alleges that the sale of the suit property was tainted with fraud and accuses the 2

nd

Defendant of having colluded with officers from the Bank to illegally acquire the suit property. The Plaintiff then filed the instant suit.

11.

PW2 MICHAEL MURIMI GATHUKU

told the Court that he is a registered Valuer and a member of the Institute of Surveyors of Kenya.

PW2

told the Court that he was an Associate Partner in the firm of

NJEHIA, NJOROGE & COMPANY

. He identified the Valuation Report dated

13

th

September 2011

which was prepared by one

MR. SAMUEL NJEHIA NJOROGE

who is his colleague.

PW2

told the Court that the said

Mr. Njoroge

was very ill and thus was not in a position to come to Court. The witness produced a Doctor’s letter dated

20

th

June 2019

as evidence of this

PExh 2

.

PW2

went on to testify that

Mr. Njoroge

upon instructions from the Plaintiff undertook a valuation of the suit property and vide his report dated

13

th

September 2011

returned an open market value of

Kshs. 18,000,000/-

for the suit property.

12.

PW3 WILFRED ABINCHA ONONO

told the court that he has been a member of the

Institute of Certified Public Accounts of Kenya

(ICPAK)

since

1978

and is currently the Managing Consultant of the

Interest Rates Advisory Centre Ltd

(hereinafter

‘IRAC’

).

PW2

relied on his written statement dated

14

th

June 2019

.

13.

PW3

told the Court that he had been engaged by the Plaintiff to prepare an Interest Recalculation Report and was supplied with all relevant documentation to facilitate the same. That he prepared his report dated

14

th

June 2019

. In said report

PW3

concluded that the 1

st

Defendant Bank had overcharged the Plaintiffs account to the tune of

Kshs. 21,035,192.16

. Upon adjusting the overcharge

PW3

stated that as at

30

th

September 2011

the recalculated outstanding balance is a credit which the Bank owes the Plaintiff of

Kshs. 1,732,590.51

.

PW3

advised the Plaintiff to demand this amount from the 1

st

Defendant Bank.

14.

DW1 ALICE WERU

is a Debt Management Officer with the

HFCK

(the 1

st

Defendant herein). The witness relied entirely upon her witness statement dated

19

th

March 2019

.

PW1

told the Court that though she was not working at the Bank when the Plaintiff transacted business with

HFCK

, she was able to craft her statements and evidence from documents held in the Bank.

15.

PW1

confirms that on

22

nd

October 1997

the Plaintiff applied for a loan facility of

Kshs. 2,590,000/-

to enable him purchase the property known as

L.R. No. 8285/406

(the suit property herein). That the 1

st

Defendant approved the said loan application and advanced to the Plaintiff this amount of

Kshs. 2,590,000/-

which sum was to be repaid together with interest at the rate of

29%

per annum within a period of

ten (10) years

.

DW1

pointed out that their Agreement provided that the interest charged on the facility would be subject to variation on terms upon which the Bank saw fit to represent the rate of interest commonly chargeable in Kenya.

16.

DW1

told the Court that the Plaintiff later defaulted in payment and became indebted to the 1

st

Defendant in the sum of

Kshs. 8,413,981.65

. Accordingly on

25

th

June 2008

the Bank called in the loan and issued a statutory notice to the chargor. That the Borrower (Plaintiff) failed to settle the amounts due on the loan and in

June 2008

the 1

st

Defendant appointed

Timothy Njehia T/A CRYSTAL VALUERS LTD

as Receiver / Managers of the suit property, to collect rent and apply the same towards servicing the Plaintiffs loan facility. However

DW1

states that the Plaintiff interfered with the collection of rents by demanding that the tenants pay their rent directly to him. As a result the Receiver / Manager was unable to carry out his mandate and was unable to collect any rent at all from the tenants. The Receiver / Managers appointment was therefore revoked vide the letter dated

18

th

July 2008

and the Bank issued the Plaintiff with yet another statutory notice of sale in

July 2008

. The Plaintiff still did not redeem the property.

17. Upon expiry of the statutory notice the Bank instructed an Auctioneer to issue the relevant notices and proceed to sell the suit property by way of public auction. However the property did not attract suitable bids. The 1

st

Defendant then instructed the firm of

ARK CONSULTANTS

to value the property who vide their Valuation Report dated

21

st

September 2010

gave a reserve price of

Kshs. 4,000,000/-.

In

March 2011

the suit property was sold to the 2

nd

Defendant by way of private treaty for the price of

Kshs. 4,500,000/-.

Thereafter the property was transferred to the 2

nd

Defendant who took over possession of the same.

18.

DW1

asserts that the 1

st

Defendant sold the suit property lawfully in exercise of its statutory right of sale. She denies that the sale was unprocedural and denies that the suit property was sold at a gross under value.

DW1

further denies that there was any collusion between the Banks officers and the 2

nd

Defendant to clog the Plaintiffs right of redemption. Accordingly

DW1

prays that the Plaintiff’s suit against the 1

st

Defendant be dismissed with costs.

19.

DW2 DUNCAN GITONGA KIBE

is the 2

nd

Defendant who purchased the suit property and is now the legal proprietor of

Title No. 8285/406

(the suit property).

DW2

relied entirely upon his written statement dated

20

th

November 2014. DW2

told the Court that sometime in

March 2011

he was approached by one

Mr. Maingi

of

Trend Villa’s

and informed that the suit property was available for purchase.

DW2

was interested and made an offer to the Bank of

Kshs. 4,200,000/-

. The Bank however declined this first offer and made to

DW2

a counter-offer of

Kshs. 4,500,000/-.

DW2

accepted the counter-offer and engaged a lawyer to represent him in the sale transaction.

DW 2

paid the purchase price for the suit property as well as stamp duty of

Kshs. 56,000/-.

Thereafter the suit property was transferred and was registered in his name. Vide a letter dated

1

st

September 2011

DW1

informed all the tenants residing in the suit property of the change in ownership which letter was also copied to the Plaintiff.

DW1

categorically denies having been involved in any collusion and/or fraud. He states that he purchased the property in good faith and notified all relevant Government Agencies of the change of ownership of the suit property.

DW2

states that the Plaintiffs suit against him is misconceived bad in law and is only aimed at harassing him and subjecting him to unnecessary costs. He prays that the Plaintiffs suit against him be dismissed with costs.

20. At the close of oral evidence parties were invited to file and exchange written submissions. The Plaintiff filed his written submissions dated

28

th

September 2020

. The 1

st

Defendant filed its written submissions dated

16

th

November 2020

whilst the 2

nd

Defendant filed his written submissions dated

3

rd

November 2020.

ANALYSIS AND DETERMINATION

21. I have carefully considered all the material placed before me in this matter. The

Evidence Act

, places the burden of proof of any fact on the person who wishes to rely on the same.

Section 107

of the

Evidence Act

provides as follows:-

“Burden of proof

(1) Whoever desires any Court to give Judgment as to any legal or liability dependent on the existence of facts which he assets must prove that those facts exist.

(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”

22. The following are the issues which arise for determination in this suit.

(i) Whether the 1

st

Defendant unlawfully increased the applicable interest rate thereby contravening

Section 39

of the

Central Bank Act

and

Section 44

of the

Banking Act

.

(ii) Whether the sale of the suit property to the 2

nd

Defendant was fraudulent.

(iii) Whether the suit property was sold at a gross under-value.

(iv) Whether the Plaintiff is entitled to the prayers sought in this suit.

i.

INTEREST

23. It is common ground that sometime in the year

1997

the Plaintiff approached the 1

st

Defendant Bank seeking a loan facility in the amount of

Kshs. 2,590,000/

-. The Bank acquiesced to this request vide the letter of offer dated

1

st

September 1997

. It is further not in dispute that upon the Plaintiffs acceptance of said offer a legal charge was created in favour of the 1

st

Defendant over the suit property securing the sum of

Kshs. 2,590,000/-

. A copy of the charge dated

22

nd

October 1997

is annexed to the Plaintiffs Bundle of documents filed on

7

th

March 2013

.

Clause 2

of the charge provided that the principal sum was to be repaid together with interest thereon together with other costs, rates and charges in instalments of

Kshs. 66,369.00

monthly.

Clause 4(1)

of the charge provided that the rate of interest payable on the loan would be “

twenty nine per centum 29% per annum

.”

24. The Plaintiff claims that he regularly and faithfully serviced the loan facility as required by the charge document, but alleges that the Bank varied the rate of interest from

29%

to

35%

and levied on his loan amount penalties charges which were not provided for in the charge Document. This the Plaintiff claims was done without his consent, knowledge and/or involvement. In this manner the Plaintiff says the Bank hindered his efforts to pay off the loan within the time period agreed upon. That this imposition of illegal and uncontractual penalties, interest and default charges created a huge balance on the Plaintiffs loan account making it impossible for the Plaintiff to redeem the account. The Plaintiff contends that the 1

st

Defendant flouted both

Section 39

of the

Central Bank of Kenya Amendment Act 2000

and

Section 44

of the

Banking Act, Cap 488 Laws of Kenya

, which provisions of law forbade any increase of interest without first obtaining the approval of the Minister for Finance.

25.

PW3 Mr. Abincha Onono

a Consultant with the

Interest Rates Advisory Centre

(

‘IRAC’

) was called by the Plaintiff as a witness to testify in this regard.

PW3

told the Court that he undertook a scrutiny and a recalculation of interest of the Plaintiffs loan account. In his report (Annexture at

page 39

of the Plaintiffs Bundle of Documents filed on

4

th

December 2014

).

PW3

concluded as follows:-

“9.9 Housing Finance’s outstanding amount on 30

th

September 2011 as per the demand letter dated 19

th

June 2012 is a debit of Kshs. 19,302,601.65 an increase of the debit by Kshs. 10,844,319.45 between 31

st

of August 2010 and 30

th

August 2011 which has not been explained. The recalculated outstanding balance is a credit of Kshs. 1,732,590.51. This means that the account has been overcharged by an amount of Kshs. 21,035,192.16.

9.10 Under this scenario, amount owed to the borrower by Housing Finance on 30

th

September 2011 as per IRAC re-calculation is Kshs. 1,732,590.51 after adjusting the overcharge.”

26. On this issue of interest the Defendant contended that it was a term of the charge that the interest rate of

29%

per annum

was subject to variation on terms upon which the Bank saw fit to fairly represent the rate of interest commonly chargeable in Kenya. The 1

st

Defendant also asserted that the mortgage facility issued to the Plaintiff was for

Kshs. 2,950,000/-

repayable in

ten years

in monthly installments of

Kshs. 67,739/-.

It was the 1

st

Defendant’s contention that the Plaintiff did not adhere to the loan terms. The 1

st

Defendant pointed out that this fact was admitted in the

IRAC

statement produced by

Mr. Onono

and the Bank account statements produced by both the Plaintiff and the 1

st

Defendant. These statements showed that for several months the Plaintiff failed to make any payment towards offsetting the loan. Furthermore, the 1

st

Defendant submitted that it did not charge any penalty interest and that the Plaintiff was charged interest at the rate of

29%

or less as agreed between the parties. The 1

st

Defendant contended that there was no evidence tendered by the Plaintiff on the alleged increase of interest rates. The 1

st

Defendant submitted that it complied with the

‘in duplum rule’

and did not recover any such sums that would be over two times the initial amount to be repaid by the Plaintiff.

27. It is trite law that Court will not re-write contracts entered into by parties. In

NATIONAL BANK OF KENYA LTD –VS- PIPE PLASTIC SAMKOLIT (K) LTD [2022]E.A. 503

it was held:-

“A Court of law cannot re-write a contract between the parties. The parties are bound by the terms of their contract unless coercion, fraud of undue influence are pleaded and proved.”

28. Similarly Courts will not interfere in the rate of interest that has been agreed upon by the parties unless the interest rate is found to be illegal, unconscionable or fraudulent. In

SHAH –VS- GUILDERS INTERNATIONAL BANK LTD [2002]E.A

. the Court held:-

“Where the parties to a dispute had not agreed on the rate of interest payable, Section 26(1) of the Civil Procedure Act, conferred on the Court the discretion to award and fix interest rates with regard to decrees for the payment of money.

Where the rate of interest has been agreed, the Court was obliged to enforce the agreed rate unless it was illegal, unconscionable or fraudulent

. [own emphasis]

29.

Clause 4

of the charge dated

22

nd

October 1997

dealt with the question of interest.

Clause 4

provided:-

“It is hereby further agreed that the rate of interest payable on all money hereby secured shall be determined as follows:-

(i) Until the service of such a notice as is hereinafter referred to interest shall be at the rate of twenty nine per centum (29%) per annum.

(ii) The Company may from time to time serve on the Borrower not less than one month’s notice requiring payment of interest at such increased or reduced rate as shall in the decision of the Directors of the Company fairly represent the rate of interest commonly chargeable in Kenya having regard to the value for the time being of the premises the amount then owing to the Company and to any other circumstances which they consider to be relevant and the decision of the Directors of the Company in this behalf shall not be questioned on any account whatsoever.

(iii) In the event of the Company requiring an increase in the rate of interest under the provisions of Sub-Clause (ii) of this Clause and requiring an increase in the money instalments payable the Company will notify the Borrower of the amount of the resulting increased monthly instalments payable under the provisions of Clause 2 hereof and the first of such increased monthly instalments shall become due and payable on the first day of the month next after notification of the amount thereof to the Borrower.

(iv) All the covenants and provisions contained herein relating to the payment of interest shall be construed and have effect as referring to interest as fixed or altered by the provisions of this Clause.”

30. By virtue of the above Clause the 1

st

Defendant reserved to itself the right to increase interest rates from time to time provided that they gave the Plaintiff not less than one month’s notice of any proposed variation of interest. The 1

st

Defendant denies that they varied the interest rate from

29%

to

35%

without notice to the Plaintiff. It is noteworthy that the Plaintiff did not avail any evidence of this alleged increase in the rate of interest. Indeed the Plaintiff appears to have kept very poor if any records of his loan account. He appeared not to be aware when or how much he had paid towards off-setting the loan amount. Under cross-examination the Plaintiff says:-

“I do not know how much I paid in the year 1998. I do not know if I only paid Kshs. 430,000/- in 1998. I am not aware that I was supposed to pay a total of Kshs. 792,000/- in the year 1998 …”

The Plaintiff goes on to admit that-

“Some of the monies I paid were to pay penalties and devolved charges …”

31. From the evidence it appears that the Plaintiff made sporadic payments and on occasion went for several months without making any payments at all. The Plaintiff under further cross-examination admits:-

“I did not calculate how much I paid towards my loan in each year. I was the owner of the plot. I did not bother to calculate how much I was to pay towards my loan each year ….”

In any event it is manifest that the Plaintiff had no idea at all how much he had paid towards his loan. How then could he effectively challenge the Banks records.

32. The Plaintiff claimed that he had made the following payments towards his loan account which were not credited by the Bank-

Kshs. 45,000/-

on

23

rd

April 2008

Kshs. 45,000/-

on

12

th

June 2008

Kshs. 35,000/-

on

11

th

June 2011

The Plaintiff states that he did not receive receipts for the above payments as one

Mr. Kimaita

a bank official promised him that the payments would be receipted once his file was traced. Why would the Plaintiff make payments to a bank without insisting on receipts for the same? In the absence of receipts there is no proof that the Plaintiff actually made the above payments as alleged.

33. The Recalculation Report which the Plaintiff seeks to rely upon has several problems.

PW2

stated that he applied a flat rate of interest of

29%

and did not take into account variations by the Bank of the interest rate. Secondly

PW3

did not take into accounts the periods when the Plaintiff failed to make payments on the loan account and the bank did not charge interest. Thirdly

PW3

admitted that he had credited to the Plaintiffs loan account rental income of

Kshs. 95,000/-

during the period when the property was under a Receiver / Manager. It has been shown that the Receiver /Manager did not collect any rent at all during this period. In this regard the 1

st

Defendant wrote to the Plaintiff a letter dated

18

th

July 2008

(see

page 1

of the 1

st

Defendants Bundle of Documents filed on

20

th

September 2018)

. In that letter the Bank complained that the Plaintiff had actively hindered the work of the Receiver rendering it difficult for him to collect rent and accordingly notified the Plaintiff that the appointment of the Receiver had been revoked. The Plaintiff himself admits under cross-examination that he does not know if the Receiver Manager collected any rents at all.

PW3

told the Court that he was never given the letter revoking the appointment of the Reciever-Manager and goes on to state under cross-examination that:-

“… In my report for 36 months I have credited Kshs. 95,000/- to the Plaintiffs loan account. If the receivership was revoked I would remove the credits of Kshs. 95,000/- per month – this comes to about 3.0 million. This would reduce the amount due to the Plaintiff …”

PW3

also admitted that he was unaware that the Plaintiffs claim for

Kshs. 105,000/-

was in respect of un-receipted monies allegedly paid.

34. It is clear therefore that

PW3

ought

not

to have credited the rental income for this period into the Plaintiffs loan account.

DW1

told the Court that for several months at a time no payments were made by the Plaintiff From

31

st

March 2005

,

PW3

zero-rated interest until the end of the recalculation period.

PW3

also failed to apply penalty interest, default charges and interest on arrears on the basis that the same were not provided for in the charge.

35. The Plaintiff contended that the 1

st

Defendant flouted

Section 39

of the

Central Bank of Kenya Act

.

Section 39(1)

of the said

Act

as amended by

Amendment Act No. 4 of 2001

provides as follows:-

“The maximum rate of interest which specified banks or specified financial institutions may charge on loans or advances shall be the 91 – day Treasury Bill rate published by the Bank on the last Friday of each month, or the latest published all-day Treasury Bill rate, plus four

per-centum

:

Provided that the maximum interest chargeable under this section shall not exceed the principal sum loaned or advanced and

provided further that this section shall only apply to contracts for loans or advances made or renewed after the commencement of this section

”. [own emphasis]

36. However the above provision was

not

applicable to the transaction between the Plaintiff and the 1

st

Defendant Bank because the charge (contract) in question was entered into between the parties

before

the commencement of

Section 39

. It is pertinent to note that in the case of

KENYA BANKERS ASSOCIATION & OTHERS –VS- MINISTER FOR FINANCE & ANOTHER [2002]KLR

vide a decision rendered on

24

th

January 2002

a three Judge Bench of the High Court declared the

Amendment

to the

Central Bank Act

void in so far as the same criminalized transactions were

not

offences at the time when they were entered into. In that case the Bench held:-

“This enactment with retrospective operation is not sanctioned by Section 46(6) of the Constitution of Kenya because it creates offence out of acts or omissions which did not constitute offences at the time they took place before the Act’s date of commencement and the overriding section 77 (4) expressly states that such criminalization of formerly lawful and innocent acts or omissions is not permitted.”

Furthermore, Section 52 of the Banking Act provides as follows:-

“(1) For the avoidance of doubt, no contravention of the provisions of this Act or the Central Bank of Kenya Act (Cap 491) shall affect or invalidate in any way any contractual obligation between an institution and any other person.

(2)The provisions of subsection (1) shall apply with retrospective effect to the Banking Act (now repealed) and the Central Bank of Kenya Act (Cap 491)

(3)This section shall not permit any institution to recover in any court of law interest and other charges which exceed the maximum permitted under the provisions of this Act or the Central Bank of Kenya Act.”

37. The Plaintiff also complained that the Bank flouted

Section 44 Banking Act

in that they failed to obtain the consent from the Ministry of Finance as required by law before effecting a variation of the interest rates. However as discussed earlier the Plaintiff did not prove on a balance of probability that there was any variation of the contractually agreed interest rate. In the premises I find that

Section 44

was not applicable at all.

IN DUPLUM RULE

38. The Plaintiff further alleges that the Plaintiff flouted the

In Duplum Rule

as set out in

Section 44A

of the

Banking Act.

Section 44A

which deals with

‘Limit of Interest recovered on defaulted loans’

provides as follows:-

“(1)

An institution shall be limited in what it may recover from a debtor with respect to a non-performing loan to the maximum amount under subsection (2)

(2) The maximum amount referred to in subsection (1) is the sum of the following-

(a) the principal owing when the loan becomes non-performing;

(b) interest, in accordance with the contract between the debtor and the institution, not exceeding the principal owing when the loan becomes nonperforming; and

(c) expenses incurred in the recovery of any amounts owed by the debtor.

(3)

If a loan becomes non-performing and then the debtor resumes payments on the loan and then the loan becomes non-performing again, the limitation under paragraphs (a) and (b) of subsection (1) shall be determined with respect to the time the loan last became non-performing.

(4) This section shall not apply to limit any interest under a Court order accruing after the order is made.”

39. The Plaintiff cites the facts that vide the demand letter dated

8

th

September 2011

the Bank claimed a sum of

Kshs. 19,302,601.65

as still due and owing on the Plaintiffs loan account even after crediting the sale proceeds of

Kshs. 4,500,000/-.

40. The 1

st

Defendant counters by asserting that it did comply with the ‘

in duplum rule

’. The Bank stated that it stopped levying interest on the Plaintiffs loan account from the year

2005

in compliance with

Section 44A

. The 1

st

Defendant pointed out that the Plaintiff made payments totaling

Kshs. 3,638,031.86

(page

3

of the

IRAC

Report). The sale of the suit property realized a sum of

Kshs. 4,500,000/-.

The 1

st

Defendant therefore insisted that it did

not

recover two times of the initial amount to be repaid by the Plaintiff.

41. However the 1

st

Defendant does not deny having made a demand of

Kshs. 19,302,601.65

even after the proceeds of the sale of the suit property amounting to

Kshs. 4,500,000/-

had been factored in. This amount is not reflected in the Plaintiffs Statement of Account for the years

1997

to

2011

(see 1

st

Defendant’s Supplementary Bundle of Documents filed on

24

th

June 2019

).

42. In the case of

JAMES MUNIU MUCHERU –VS- NATIONAL BANK OF KENYA LIMITED [2019]eKLR

the Court of Appeal held:-

“ Finally, regarding

Section 44A

of the

Banking Act

that imports the

in duplum rule

, the same came into force on 1

st

May, 2007. The suit that gave rise to this appeal was filed on 22

nd

February 2002, long before

Section 44A

came into operation.

Section 44(1) and (2)

states as follows:

“(1)

An institution shall be limited in what it may recover from a debtor with respect to a non-performing loan to the maximum amount under subsection (2)

(2) The maximum amount referred to in subsection (1) is the sum of the following-

(a) the principal owing when the loan becomes non-performing;

(b) interest, in accordance with the contract between the debtor and the institution, not exceeding the principal owing when the loan becomes nonperforming; and

(c) expenses incurred in the recovery of any amounts owed by the debtor.”

Subsection (6)

has a retrospective effect in that it covers even loans that were advanced before the section came into operation. It states as follows:

“(6)

This section shall apply with respect to loans made before this section comes into operation, including loans that have become non-performing before this section comes into operation

:

Provided that where loans became non-performing before this section comes into operation, the maximum amount referred to in subsection (1) shall be the following-

(a) the principal and interest owing on the day this section comes into operation; and

(b) interest, in accordance with the contract between the debtor and the institution, accruing after the day this section comes into operation, not exceeding the principal and interest owing on the day this section comes into operation; and

(c) expenses incurred in the recovery of any amounts owed by the debtor.”

It is therefore evident that in computing the actual amount that is due and payable by the appellant to the respondent, the provisions of

Section 44A

of the

Banking Act

must be borne in mind and factored in the computation. It is not for this Court to do the calculation. The respondent must adjust the sum payable in accordance with the law. To that extent only this appeal succeeds

.” [own emphasis]

43. Accordingly I find that

Section 44A

of the

Banking Act

is applicable and ought to have been a factor in computing of the outstanding amount due and owing by the Plaintiff. Therefore, I direct that the 1

st

Defendant must adjust the outstanding amount still due and payable to conform with

Section 44A

.

(ii)

Was the sale of the suit property fraudulent

44. The Plaintiff faults the Bank for exercising its statutory power of sale in respect of the suit property through a sale by private treaty. The Plaintiff claims that the Bank rushed to effect a sale by private treaty without making any attempt to sell the suit property through a public auction and cites this as evidence of fraud and collision with the 2

nd

Defendant (buyer). The Plaintiff further alleges that the Bank in selling the suit property failed to comply with the provisions of

Section 90

of the

Land Act 2012

. The Plaintiff denies having been served with the requisite statutory notices and claims that there was no evidence that of any advertisement for a public auction. The Plaintiff therefore disputes the Banks claim that efforts to sell the suit property by public auction bore no fruit as no offers were realized at the auction.

45. The Plaintiff further submitted that the sale of the suit property by way of private treaty to the 2

nd

Defendant as well as the subsequent transfer to the 2

nd

Defendant was done in a clandestine manner and was both irregular and unlawful. That said sale was premature and was calculated to clog the Plaintiffs right of equity of redemption. The Plaintiff contends that this sale being unlawful could not be deemed to have conferred good title upon the 2

nd

Defendant.

46. On its part the 1

st

Defendant categorically denies having conducted the sale of the suit property in a clandestine and/or unlawful manner. The 1

st

Defendant states that as at

25

th

June 2008

the Plaintiff was indebted to the Bank in the sum of

Kshs. 8,413,981.65

. That the Bank then appointed a Receiver / Manager for the suit property to collect rent from the tenants and transmit the rents collected to the Bank in order to offset this debt. At

page 3

of the Defendants Bundle of Documents filed on

26

th

June 2018

is the letter dated

2

nd

July 2008

written by

Crystal Valuers Ltd

(the appointed Receiver / Manager) notifying all the tenants of their appointment, and advising the tenants to henceforth pay rents to the offices of the Receiver / Manager before the

5

th

day

of each month.

47. However the Bank states that the Receiver / Manger was unable to carry out his mandate due to interference by the Plaintiff who sabotaged the Receiver / Manager by demanding that the tenants pay the rents to him directly. At

page 13

of the Defendant’s Bundle of Documents in the copy of a letter dated

2

nd

July 2008

written by the Receiver / Manager informing the Bank that despite instructions issued to the tenants to pay their rents to the Receiver / Manager the Plaintiffs caretaker was still collecting rents directly from each tenant.

48. As a result the Receiver / Manager was unable to collect even a single cent in rental income from the suit property. The Bank was left with no option but to revoke the appointment of the Receiver / Manager. Thereafter in

July 2008

the Bank issued the Plaintiff with a statutory notice of sale. The Plaintiff failed to redeem the suit property and upon the expiry of the statutory Notice the 1

st

Defendant instructed an auctioneer to sell the suit property by way of public auction. The relevant statutory notice is the one dated

20

th

August 2010

annexed at

page 102

of the 1

st

Defendant’s Bundle of Documents filed on

20

th

September 2018

. At

page 103

is the

Certificate of Posting

by Registered Mail. Due to the failure of the public auction to attract reasonable and acceptable offers the Bank opted to sell the suit property by way of private treaty. At

page 7

of the Defendants Bundle of Documents is a letter dated

27

th

September 1999

written by

Cheri Kenya Ltd

auctioneer informing the Bank that an attempt to auction the suit property realized a bid of only

Kshs. 2,500,000/-

which was rejected as being too low.

49. On his part the 2

nd

Defendant pleads that he is a buyer for value without notice. He denies having colluded with the Bank or its officers and denies that he sale of the suit property to himself was in any way fraudulent. It is not enough to merely allege fraud. The onus lies on the Plaintiff to prove that the sale to the 2

nd

Defendant was infact fraudulent. Further it has been held that the standard of proof required to prove fraud is much higher than on a balance of probability. In

VIJAY MORJARIA –VS- NANSINGH MADHUSINGH DARBAR & ANOTHER (2000)eKLR

quoted with approval in the case of

EURO BANK LIMITED (In Liquidation) –VS- TWICTOR INVESTMENTS LIMITED & 2 OTHERS [2020]eKLR

(available at

page 19

of these submissions) the Court held:-

“It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleadings. The acts alleged to be fraudulent must of course be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and as distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.”

50. Likewise in

CENTRAL BANK OF KENYA LIMITED –VS- TRUST BANK LIMITED & 4 OTHERS [1996]eKLR

the Court of Appeal held thus:-

“The Appellant has made vague and very general allegations of fraud against the Respondent. Fraud and conspiracy to defraud are very serious allegations. The onus of prima facie proof was much heavier on the Appellant in this case than in an ordinary case ….

In this case, to succeed on the claim for fraud the Appellant needed to not only plead and particularize it, but also lay a basis by way of evidence upon which the Court would make a finding

.” [own emphasis]

51. In my view the Plaintiff has failed to adduce evidence sufficient to meet the threshold to prove his allegations of fraud. It is common ground that the suit property was sold to the 2

nd

Defendant for

Kshs. 4,500,000/-.

A copy of the Agreement of Sale between

HFCK

and

DUNCAN GITONGA KIBE

dated

13

th

April 2011

is annexed at

page 36

of the 2

nd

Defendants Bundle of Documents filed on

23

rd

July 2013

. It is also a fact that the suit property was duly transferred to the 2

nd

Defendant vide the Transfer by Chargee dated

12

th

July 2011

(

page 48

of 2

nd

Defendants Bundle of Documents).

52. Although the Plaintiff denies receipt of any statutory notices in respect of the exercise by the Bank of its statutory right of sale, the Plaintiff did admit that all correspondence from the Bank was received by him through Registered Mail at his given Postal Address being Box

74747-00200, NAIROBI

. The 1

st

Defendant has annexed a copy of a letter written to the Plaintiff by way of Registered Mail. (see pages

100-107

of 1

st

Defendant’s Bundle of Documents filed on

20

th

September 2018

). Amongst the said letters and notices are statutory notices dated

20

th

August 2010

and

2

nd

February 2005

. It is clear from there that the Bank did serve Plaintiff with statutory notices in compliance with the law. More tellingly the Plaintiff himself admitted that he did personally attend an auction of the suit property proving that indeed an attempt to sell the suit property by Public Auction did take place. Under cross-examination the Plaintiff contradicts himself when he says:-

“I was not informed of the auction at all …”

In the same breath the Plaintiff goes on to state that:-

“I went to the auction and was chased away I left crying …”

The fact that the Plaintiff attended the Public Auction proves that he had been notified of the same. It is clear that the Plaintiff is being economical with the truth when he alleges that he received no notice of the auctions.

53. The 2

nd

Defendant narrated to the Court how he was alerted by an agent of the availability of the suit property for sale. The 2

nd

Defendant who was interested in purchasing the property made an initial offer of

Kshs. 4,200,000/-

for the property. The Bank rejected his offer and made a counter offer of

Kshs. 4,500,000/-.

The 2

nd

Defendant accepted this counter offer and purchased the property for

Kshs. 4,500,000/-.

The amount paid by the 2

nd

Defendant was above the reserve price of

Kshs. 4,000,000/-

in the Valuation Report of

Ark Consultants

dated

21

st

September 2010

.

54. I find no evidence of any collusion between the 2

nd

Respondent and the Bank or any of its officers. The 2

nd

Defendant paid the full purchase price as evidenced by the Receipts annexed at

page 44-46

Defendant’s Bundle. The 2

nd

Defendant paid all outstanding utilities rates. He paid the requisite stamp duty of

Kshs. 180,040/-

as per the receipt dated

24

th

June 2011

issued by the Kenya Revenue Authority at

page 55

and Banker’s cheque dated

28

th

June 2011

at

page 57

of the 2

nd

Defendants Bundle. After the Government Valuer returned a value of

Kshs. 5,900,000/-

for the suit property the 2

nd

Defendant paid an additional amount of

Kshs. 56,000/-

towards the stamp duty. At

page 57

–

page 59

of the 2

nd

Defendants Bundle is the Valuation of the Government Valuer as well as a receipt for

Kshs. 56,000/-

received by the

Kenya Revenue Authority

.

55. The 2

nd

Plaintiff there after wrote to the then

Nairobi City Council

to inform them of the change of ownership of the suit property. At

page 68

of the 2

nd

Defendants Bundle is a copy of the letter dated

16

th

November 2011

to the City Council seeking transfer of Account for

LR No. 8285/406

to the 2

nd

Defendant.

56. The mere fact that the sale was conducted by way of private treaty does not make said sale unlawful.

Section 69(1)

of the

INDIAN TRANSFER OF PROPERTY ACT (‘ITPA’

) empowers a Bank to realize its security through public auction or by private treaty.

Section 69(1)

provides as follows:-

“A mortgagee, or any person acting on his behalf where the mortgage is an English mortgage, to which this section applies,

shall, by virtue of this Act and without the intervention of the Court, have power when the mortgage-money has become due, subject to the provisions of this section, to sell, or to concur with any other person in selling, the mortgaged property or any part thereof, either subject to prior encumbrances or not, and either together or in lots, by public auction or by private contract

, subject to such conditions respecting title, or evidence of title, or other matter, as the mortgagee thinks fit, with power to vary any contract for sale, and to buy in at an auction, or to rescind any contract for sale, and to resell, without being answerable for any loss occasioned thereby.” [own emphasis]

57. The Court of Appeal in the case of

JOSE ESTATES LIMITED –VS- MUTHUMU FARM LIMITED & 2 OTHERS [2019]eKLR

held:-

“

The 3

rd

respondent was not obliged to sell by public auction. Sale by private treaty was an option also as long as the 3

rd

respondent acted in good faith

. From the record before us, the 3

rd

respondent acted in good faith as it involved the 1

st

and 2

nd

respondents in the process of finding a suitable purchaser. The 3

rd

respondent gave due allowance to the 1

st

and 2

nd

respondent to exercise their equity of redemption by calling off several public auctions at their behest and also allowing them to bring on board suitable purchasers ….”

58. It is clear that the 2

nd

Defendant at all times acted with transparency and in good faith. He followed all the legal channels in the purchase of the suit property. The sale to the 2

nd

Defendant cannot be said to be clandestine as was it transacted in full compliance of the law. The 2

nd

Defendant took steps to notify all relevant authorities of the purchase and transfer of the suit property to himself. I find no evidence of fraud and/or collision on the part of the 2

nd

Defendant.

59. I find and hold that the 2

nd

Defendant is what is known in law as an innocent purchaser for value without notice.

60. The

Black’s Law Dictionary, 9

th

Edition

has defined an Innocent Purchaser for Value Without Notice as:-

“… one who buys something for value without notice of another’s claim to the property and without actual or constructive notice of any defects inn or infirmities, claims, or equities against the seller’s title; one who has in good faith paid valuable considerations for property without notice of prior adverse claims …”

61. In

KATENDE –VS- HARIDAR & COMPANY LIMITED [2008]2 E.A.173

(available at

page 44

of these submissions), whereby the Court of Appeal in Uganda held that:-

“… for the purposes of this appeal, it suffices to describe a bona fide purchaser as a person who honestly intends to purchase the property offered for sale and does not intend to acquire it wrongly. For a purchaser to successfully rely on the bona fide doctrine, … (he) must prove that:-

(a) he holds a Certificate of Title;

(b) he purchased the property in good faith;

(c) he had no knowledge of the fraud;

(d) he purchased for valuable consideration;

(e) the vendors had apparent valid Title;

(f) he purchased without notice of any fraud;

(g) he was not party to any fraud …”

62. I find that the 2

nd

Defendant is now the legally recognized proprietor of the suit properties having acquired the same through the Bank’s lawful exercise of its statutory power of sale.

(iii)

Whether the suit property was undervalued

63. The Plaintiff claimed that the suit property was sold by the 1

st

Defendant at a gross undervalue. Thus the Plaintiff claims that the sale by the 1

st

Defendant violated

Section 97(1)

of the

Land Act 2012

which provides as follows:-

“97. (1) A chargee who exercises a power to sell the charged land, including the exercise of the power to sell in pursuance of an order of a court, owes a duty of care to the chargor, any guarantor of the whole or any part of the sums advanced to the chargor, any chargee under a subsequent charge or under a lien

to obtain the best price reasonably obtainable at the time of sale

.

(2) A chargee shall, before exercising the right of sale, ensure that a forced sale valuation is undertaken by a valuer.” [own emphasis]

64. The suit property was sold to the 2

nd

Defendant by way of private treaty for

Kshs. 4,500,000/-

. In support of his claim that this amounted to a gross undervalue the Plaintiff relied on the evidence of

PW2

an Associate Partner with the firm of Valuers known as

Njihia Njoroge & Company

who the Plaintiff instructed to value the suit property.

PW2

produced as an exhibit a Valuation Report dated

13

th

September 2011

which gave the open market value of the suit property as

Kshs. 18,000,000/-.

A copy of the said Valuation Report is annexed at

pages 58-62

of the Plaintiffs Bundle of Documents filed on

26

th

July 2019

.

65. The 1

st

Defendant on their part had commissioned a valuation of the suit property in compliance with

Section 97(2)

of the

Land Act

. The Bank engaged

ARK CONSULTANTS LTD

to value the suit property. Vide their Valuation Report dated

21

st

September 2010

.

Ark Consultants

returned an open market value of the suit property of

Kshs. 5,850,000/-

with a forced sale value of

Kshs. 4,000,000/-.

(A copy of the Report is annexed at

pages 108

to

page 717

of the 1

st

Defendant Bundle of Documents filed on

20

th

September 2018

).

PW2

was at pains to explain the great disparity between the valuation in the report he produced in Court and the Report prepared by

Ark Consultants

. It is pertinent to note that

PW2’s

report was prepared

six (6) months

after

the sale of the suit property. The 2

nd

Defendant told the Court that upon taking possession of the suit property he embarked on a massive renovation of the same. The valuation of a property after extensive renovations had been undertaken would obviously return a higher value.

66. I also note that a valuation conducted by the

Chief Government Valuer

shortly after the sale of the suit property returned a valuation of

Kshs. 5,900,000/-

(see copy of Valuation Report by

Chief Government Valuer

dated

12

th

July 2011

at

page 58

of 2

nd

Defendants Bundle filed on

23

rd

July 2013

). The valuation of the

Chief Government Valuer

who is a neutral Valuer not commissioned by either party to the dispute was closer to the Valuation returned by

Ark Consultants

. In any event the mere fact that the valuation commissioned by the Plaintiff returned a different value to that returned by the Banks Valuer does not amount to proof that the suit property was sold at an undervalue. In

ZUM ZUM INVESTMENT LTD –VS- HABIB BANK LIMITED [2014]eKLR

it was held thus:-

“Once the Defendant has undertaken a forced sale valuation, the burden shifts to the Plaintiff to prove that the value arrived at by the Defendant's valuer was not the best price reasonably obtainable at the time. …

It is not sufficient for the Plaintiff to merely claim that the intended selling price is not the best price obtainable at the time …. The Plaintiff must satisfactorily demonstrate why the valuation report that the Defendant intends to rely on in disposing of the suit property does not give the best price obtainable at the material time

. The Plaintiff needs to show, for instance, that the Defendant's valuer is not qualified or competent to carry out the valuation, or that the valuation was carried out in consideration of irrelevant factors or that the valuation was done way before the time of the intended sale”

67. The sale of the suit property at

Kshs. 4,500,000/-

means that it was sold

above

the reserve price as stated in the report of

Ark Consultants

. I find no evidence to support the Plaintiffs contention that the suit property as sold at a gross undervalue. On the contrary the evidence shows that the 1

st

Defendant made efforts to obtain a reasonable price. The auction sale which attracted a bid of

Kshs. 2,500,000/-

was rejected as it was too low. The Bank also rejected the 1

st

offer of

Kshs. 4,200,000/-

by the 2

nd

Defendant and made a counter offer of

Kshs. 4,500,000/-.

Clearly the Bank was determined not to sell the property at a throw away price.

68. Therefore I am satisfied that the 1

st

Defendant complied with

Section 97(2)

by obtaining a recent valuation of the suit property. I further find that the 1

st

Defendant equally complied with

Section 97(1)

by securing the best price obtainable at the time. The fact that the property was sold at a price which did not satisfy the Plaintiff does not mean that the same was sold at an undervalue.

(iv)

Is the Plaintiff entitled to the prayers sought in the Plaint

69. The Plaintiff has made prayer for damages. An award of damages is only made where there has been a breach of contract and where liability or wrongdoing has been proved. In this case the Plaintiff has failed to prove any breach of contract or wrongful and/or unlawful act on the part of the 1

st

or 2

nd

Defendant in the management of his loan account. As such he is not entitled to an award of damages.

70. The Plaintiff has by prayer (c) made a claim for

Kshs. 1,732,590.05

. This claim is based on the refund which the Plaintiff claims is due to him on the basis of the interest recalculation report prepared by

PW3

. As demonstrated earlier this Report had several fundamental problems.

PW3

in preparing his report factored in an amount of

Kshs. 95,000/-

supposedly collected each month by the Receiver / Manager for a period of

36 months

(95,000x36= 3,420,000/-)

. As has been shown the Receiver / Manger did not infact collect any rent at all during this period. Therefore the Report of

PW3

is fundamentally flawed and cannot be relied on as proof of amounts due and owing to the Plaintiff. In

DHALAY –VS- REPUBLIC 1997 KLR

, the Court of Appeal held as follows:-

“ It is now trite law that while the courts must give proper respect to the opinions of experts, such opinions are not, as it were, binding on the courts and the courts must accept them. Such evidence must be considered along with all other available evidence and if there is proper and cogent basis for rejecting the expert opinion, a court would be perfectly entitled to do so

.”

Accordingly I dismiss the Plaintiffs claim for

Kshs. 1,732,590.05

.

71. By prayer (d) the Plaintiff has made a claim for special damages in the amount of

Kshs. 220,440/-

being the costs of procuring the advisory Report from

IRAC

, the Valuation Report prepared by

Njihia Njoroge and Company

and money paid to one

Geoffrey Kimaita

a Bank Manager. In the case of

CAPITAL FISH KENYA LIMTIED –VS- THE KENYA POWER & LIGHTING COMPANY

, it was held;

“It is trite law that special damages must not only be specifically pleaded, they must also be strictly proved with as much particularity as circumstances permit.”

72. The Plaintiff has filed to prove each of these claims as required. The Bank Manager whom he allegedly paid was never called to testify. Payments made without receipts cannot be proved. No receipts were annexed for payments made to

IRAC

or to the firm of

Njihia Njoroge & Company

. I find that none of these claims for special damages have been proved to the required standard and accordingly I dismiss the Plaintiffs claim for special damages of

Kshs. 200,400/-

.

CONCLUSION

73. Finally and in conclusion the Plaintiffs suit against the 1

st

Defendant is only partially successful. The Court therefore makes orders as follows:-

(a) The 1

st

Defendant to review the amount still due and owing by the Plaintiff taking into account the

‘In Duplum Rule.’

(b) The Court dismisses Prayers (a), (b) (c) and (d) of the Plaint dated 6

th

March 2013.

(c) The Plaintiffs suit against the 2

nd

Defendant is dismissed in its entirety.

(d) The Plaintiff to pay the 1

st

and 2

nd

Defendants costs for this suit.

Dated in Nairobi this 26

th

day of February, 2021.

…………………………………..

MAUREEN A. ODERO

JUDGE