Conservationist Paula Kahumbu and her brother Dominic have lost yet again a bid to block the National Bank of Kenya from auctioning their family’s matrimonial home in Karen over a debt of Sh220 million borrowed by their late father decades ago.
Ms Kahumbu wanted the High Court to block the lender from auctioning two properties in Karen until it is determined how much the family was still owing the bank.
It was their argument that the bank has already recovered and exceeded the principal amount borrowed in the 1980s, after selling some of the family property.
Justice David Majanja dismissed the case saying the matter had already been determined by earlier decisions and the only option available to the family is to file a fresh suit against the bank.
“I, therefore, hold that in so far as the issues raised are concerned, this case has been concluded and the court is functus officio there being nothing further to decide,” the judge said.
Ms Kahumbu’s family has been fighting the bank since the early 1980s by successfully blocking NBK from auctioning their home in Mwitu Estate in Nairobi’s Karen suburb.
The court heard that the lender had issued a loan to Schemes Limited and its director John Francis Kahumbu. The borrower who has since died charged his two properties in Karen for the loan, which was issued in the form of a mortgage.
The patriarch filed a case against the bank in 1981 seeking to save the family home and when he died, his wife Roseline Mary Kahumbu took over the fight.
She argued that her husband did not seek her consent before offering the Karen home for the loan, yet it is matrimonial property. Under Kenyan law, for matrimonial property to be used as loan security, both spouses must give their consent.
Justice Fred Ochieng agreed with Roseline in 2017 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 the loan.
She died in 2019 and upon passing on, NBK renewed its attempt to auction the Karen land to recover the loan which then stood at Sh220 million.
Last year, Justice Majanja dismissed another application filed by Ms Kahumbu saying there was no decree and hence no injunction can be issued against the bank. She immediately moved back to court in February last year seeking similar orders.