Win for loan guarantors in failed asset auctions

Justice Abigail Mshila held that if the asset provided as collateral or security fails to fetch the amount enough to settle the debt, a lender is barred from going for the guarantors.

In a ruling that is likely to serve as a respite to many guarantors, the court further ruled that a lender is not entitled to any compensation if the asset held as security is auctioned and still the sums undue are not recovered.

She held that auctions free up guarantors who then cannot continue to be part of collateral after the lender opts to auction assets owned by the principal borrower.

The judge made the findings while setting aside a statutory demand issued by Ecobank to listed property developer Home Afrika for payment of a disputed Sh938 million loan.

Justice Mshila said a lender cannot go for properties of a loan guarantor when it has already been allowed to sell assets of the principal borrower charged as security.

Citing Section 97 of the Land Act, the judge said a lender is not entitled to any compensation if it is not in a position to recover the outstanding loan during an auction of the charged property.

Ecobank had issued the housing developer a statutory demand and notice dated March 19, 2021, seeking payment for a sum of Sh938,592,267 and it intended to liquidate the real estate company to recover the disputed debt.

The genesis of the commercial dispute was a move by Home Afrikato stand in as a guarantor for Moru Ridge, a related company that borrowed Sh483,545,885 from Ecobank in 2018 for the development of a real estate project but defaulted payment.

Ecobank sued in 2018 seeking permission to auction Moru Ridge and in January 2020, Justice Wilfrida Okwany allowed the bank to auction the property.

However, the property failed to attract a buyer despite being advertised for sale on several occasions.

The lender opted to go after the guarantor – Home Afrika – saying that as of April 26, 2021, the debt had escalated and outstripped the value of the property and stood at Sh938,592,267.

Home Afrika argued that by a ruling dated January 22, 2020, the bank was granted leave to purchase a housing unit (M0014 situated on LR No. 29059 I.R No. 149050 Kiambu) in the name of Moru Ridge Limited by private treaty at market price.

Hence, any debt owed to the bank was wholly provided for and was within the control of the bank.

Justice Abigail Mshila allowed the developer’s request to have the statutory demand set aside.