A borrower has been barred from stopping the Kenya Commercial Bank auctioning his property for failing to appeal on time, blaming Covid-19 restrictions.
David Mugambi claimed he had prepared his appeal but could not access the courts as a result of lockdowns during the pandemic.
The lender, however, argued that he should have filed his appeal before the lockdown as lawyers were exempted from the restrictions and in fact there was an option to access the corridors of justice online.
“The applicant contradicts himself when he attributes the delay in filing the record of appeal to the Covid-19 pandemic, yet states that the record of appeal was ready before the lockdown; that the applicant had not provided any plausible reasons for filing the record of appeal late,” Lady Justice Hannah Okwengu said.
According to court procedures, a record of appeal has to be filed within the statutory 60 days from the date of filing the notice of appeal.
The High Court had ruled against Mr Mugambi on January 16, 2020 and he lodged a notice of appeal on January 21, 2020.
He explains that he prepared a record of appeal, but was unable to file the record of appeal due to the Covid-19 pandemic, and the subsequent government’s directive and travel restrictions that were imposed.
KCB said his advocates, being members of the Law Society of Kenya, were exempted from the movement restrictions.
The bank pointed out that the cessation of all movements in and out of Nairobi Metropolitan area, came into force through a legal notice that was published on 6th April, 2020 which was well over 73 days from the last date the record of appeal was due for filing.
The lender said that the court put in place sufficient mechanism for online filing of pleadings, and the cessation of movement lapsed on July 6, 2020.
This notwithstanding, the applicant did not file the motion until July 28, 2020.
As banks launch a brutal fight to repossess property and recover loans, Kenyans are coming up with all manner of excuses to keep their property.
The entire matter of Mugambi was even more bizarre since the entire proceedings were done online. Due to the Covic-19 pandemic, hearing of the motion proceeded by way of written submissions that were duly filed by all parties’ counsel, without the presence of parties or their advocate