Peter Joseph Ngigi dreamed of making the Kenya Shoe Company one of first local footwear giants when he set it up in the early 1980s.
He borrowed Sh2.2 million from KCB Bank, where he had spent most of his working life, in 1982 as the shoe factory took shape. The loan was secured by Kenya Shoe’s equipment and land in Lari, Kiambu County, alongside his personal guarantee.
Mr Ngigi’s guarantee meant that if he defaulted on the loan, KCB would auction part or all of his family land, also in Lari, to recover the debt.
Two years after the KCB loan was issued, Kenya Shoe had made a profit of Sh6 million. Business was booming.
But interest rates on the loan started to drag down the firm’s success. By 1990, KCB had auctioned all of Kenya Shoe’s collateral and was now baying for Mr Ngigi’s. Kenya Shoe collapsed under the pressure of debt.
Mr Ngigi died in 1991, but his defunct company’s debts continued to haunt his family, which surrendered more land in Lari for auction to recover the KCB debt.
His business partner, Joseph Ngugi Kamau, suffered the same fate, losing his assets to the debt recovery process.
Interest on the loan had shot up to an estimated 70 per cent, nearly four times the original rate in 1982.
Illegal interest rates
When the High Court allowed past and present bank customers to join a class action suit seeking redress for illegally levied interest rates, Mr Ngigi’s family and Mr Kamau successfully joined the case.
The Ngigis and Mr Kamau are seeking Sh2 billion in compensation from KCB in damages for alleged illegal increase of interest rates.
For Horatius Da Gama Rose, two of his companies – Printing Industries Ltd and Multiple Industries Ltd – borrowed Sh29 million from Bank of Baroda.
The bank claimed Sh49 million from the Da Gama Rose companies, which struggled to repay. Their land was auctioned.
Mr Da Gama Rose joined the interest rates suit, claiming to have been overcharged Sh20 million in interest.
Dead
The tycoon, however, died in September 2016.
Former Shinyalu MP Japheth Shamalla also joined the class action suit in September 2014. He died two months later.
Mr Shamalla, Mr Da Gama Rose and Mr Ngigi are just a fraction of several people whose families are desperately waiting for the courts to determine the class action suit, which has been pending for 19 years with no hearing date in sight.
When David Mwiraria stood before the National Assembly on June 12, 2003 to deliver the Narc government’s first ever budget speech, he promised to deliver Kenyans from the financial mess created by former President Daniel Arap Moi’s administration.
One of the pillars of Mr Mwiraria’s rescue plan was to rein in lenders that had been violating Section 44 of the Banking Act. The particular law requires banks to seek permission from the Treasury before altering interest rates or levying charges on customers.
Mr Mwiraria ordered the Central Bank of Kenya (CBK) to enforce Section 44 of the Banking Act.
While it is still unclear whether Mr Mwiraria’s speech sparked one of the most significant cases in Kenya’s courts, 40 days later Rose Florence Wanjiru sued all banks operating in Kenya for allegedly raising interest rates and other charges illegally.
Ms Wanjiru sued CBK, the Kenya Bankers Association and its secretary, John Wanyela.
Nearly 19 years later, the case has set several legal precedents, attracted nearly 200 other bank customers, cut the teeth of several judges while causing jitters across the banking industry.
Slow wheels of justice
But despite the legal milestones made, the main case has never gone to full hearing, in one of the clearest demonstrations of how slow the wheels of justice can move.
Other than a section of claimants, some individuals whose offices would have interacted with the case, like Mr Mwiraria and Mr Wanyela, have also died before the suit gets a hearing date.
Justice John Mwera, the first judge to handle the case in 2003, is nearing six years of life in retirement. Former judges Kalpana Rawal and Philip Tunoi have also since retired, years after they handled the case at the Court of Appeal.
And after the Supreme Court’s 2015 judgment that cleared the way for the class action suit to be heard, the Judiciary has had three Chief Justices – Willy Mutunga, David Maraga and Martha Koome.
All three promised to speed up cases and reduce backlogs, but continued delays in hearing cases like the class action against banks has dented their tenures.
One of the latest hurdles in hearing the class action suit arose from a February 2020 ruling by Justice Francis Tuiyott.
Justice Tuiyott ordered that all the 188 plaintiffs be represented by lawyer Samuel Gichuki Waigwa, who filed the case under instruction from Rose Florence Wanjiru in 2003.
His orders followed an application by the Kenya Bankers Association.
The judge held that all the new 187 new plaintiffs had a similar case to Ms Wanjiru’s, and that their lawyers could liaise with Mr Waigwa. A few lawyers would then be granted permission to address the court in the course of the hearing.
The family of Kenya Shoe co-founder Mr Ngigi has challenged Justice Tuiyott’s ruling.
Fugitive lawyer
But as the appeal is heard, Mr Waigwa, the lawyer who is intended to act for all lawyers on the plaintiff section, is a fugitive.
The Directorate of Criminal Investigations (DCI), in November, issued a warrant of arrest for Mr Waigwa for allegedly jumping bail and absconding a fraud case.
Mr Waigwa was in 2017 charged with stealing Sh20 million from Aguthi Enterprises, and has only attended court once.
He has since closed his offices in the Nairobi city centre, and police have not found him. He also missed the last few mentions in the class action suit, leaving the 188 plaintiffs in limbo.
The Kenya Bankers Association (KBA) has now asked the High Court to strike the only four new plaintiffs in the suit that have filed the particulars of their claims.
KBA argues that Joseph Kariuki Ngigi, Kenya Shoe Company, Kenneth Kimani Nyoike and Datini Mercantile Ltd had already sued KCB before joining the class action suit and so should be barred from participation.
Old records
James Mwaniki, an assistant manager, holds that it may be difficult to trace old records.
“Due to the age of these transactions the bank has been unable to obtain full information on the operation of these accounts,” he says in court papers.
“The bank’s core system has gone through several changes and upgrades over the years and it is difficult to obtain information which is more than six years old.”
But the four plaintiffs have opposed KBA’s application, arguing that the separate cases are about the auctions they faced, while their participation in the class action is strictly on interest rates charged on their loans.
“The notice of motion is a deliberate attempt to mislead this honourable court, delay the conclusion of this matter and in the process frustrate Kenya Shoe Company to abandon its claim,” Mr Ngigi says through P.G. Kaingu & Company Advocates.
“The KBA is in a desperate attempt to delay this matter altogether as it has never filed any response to the statement of claim by Joseph Kariuki Ngigi and Kenya Shoe Company filed more than two years ago; instead it has engaged itself in sideshows.”
Trying to trick courts
Mr Nyoike and his Datini Mercantile add that KBA is for the second time trying to trick the courts into kicking them out of the case, and possibly an attempt to frustrate them into quitting their claim.
High Court Judge David Majanja has taken over the case following Justice Tuiyott’s promotion to the Court of Appeal.
The last time the case was before Justice Majanja in September, the judge gave Standard Chartered an additional 45 days to file evidence after the lender said there was trouble tracing old records.
Court records indicate that there are 42 complaints against Equity Bank, 23 against National Bank and 20 against Standard Chartered. Others facing complaints are Cooperative Bank (17), Stanbic (6), Consolidated Bank (2), Family Bank (2).
Gulf Africa Bank, Diamond Trust Bank, Chase Bank and Oriental Commercial Bank each have one complaint.
Banks that ceased to exist have been exempted from the case. Those whose assets were bought by other lenders, such as National Bank, will have the new entity shoulder the burden for their predecessors. BY DAILY NATION