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Win for widow as court blocks bank from auctioning her family home
The court noted that the events preceding the lender’s attempt to auction the house pointed “irresistibly to the conclusion” that the documents were not authentic.
A widow has secured court orders blocking SBM Bank Kenya Limited from auctioning her matrimonial home in Karen over a disputed loan of Sh14.6 million.
The High Court ruled in favour of Florence Edelquonn Wendoh, finding that the mortgage allegedly taken by her late husband, Charles Maringo Khakhali, was legally defective.
The court noted that the events preceding the lender’s attempt to auction the house pointed “irresistibly to the conclusion” that the documents were not authentic.
The judge found Ms Wendoh’s account of how she came to admit liability “harrowing” and uncontroverted.
According to the court, the letter admitting the debt was extracted at a hospital while her husband was in the Intensive Care Unit awaiting surgery.
A bank official allegedly threatened immediate auction of the matrimonial home if she did not sign.
“Consequently, I find that the Defendant (SBM Bank) has failed to prove the due execution of the Mortgage, the Guarantee, and the Spousal Consent. The Plaintiff’s testimony that she did not sign these documents stands unrebutted by any direct evidence,” the court said.
Evidence showed that Mr Maringo bought the property in 2002 and completed the acquisition in July 2003. It was registered in their joint names, and they established their matrimonial home in October 2010.
The lender said Mr Maringo maintained an account with Chase Bank (Kenya) Limited and was advanced Sh11.15 million in 2010, comprising Sh9.15 million as an overdraft and Sh2 million as a term loan.
The facility was allegedly secured by a letter of offer dated May 26, 2010, which Ms Wendoh purportedly witnessed.
The loan was restructured in 2016 to Sh14.6 million after Mr Maringo defaulted in repayment. The bank relied on a legal mortgage dated April 3, 2012, a letter of guarantee and indemnity dated March 9,2016, and a spousal consent form of the same date, all allegedly signed by Ms Wendoh.
But Ms Wendoh denied knowledge of the facilities, saying she only became aware of a potential claim in late 2018 or early 2019 when her husband fell critically ill.
The court held that, faced with her denial, the bank ought to have called the advocates who witnessed the documents to testify.
The judge described Ms Wendoh as a truthful witness who recounted events with consistency and emotional clarity. The court also criticised the bank official’s conduct as unconscionable.
