Equity Bank has asked the Commercial Court to allow it to auction properties owned by former Sportspesa chair Paul Ndung'u in a loan dispute.
The bank in its opposition to a case filed by Ndung'u, Simba Fresh Produce Limited, Homes and Commercial Holdings Limited argues that despite being in debt has failed to pay back the loan.
Ndung'u owns a majority stake at Homes and Commercial Holdings while his wife and children are Simba Fresh shareholders.
The bank claims that although Simba Fresh had been given concessions to enable him to foot the loan, he has allegedly failed to honor his end of the bargain. Equity claims Ndung'u was aware of the auction as in December last year, the lender suspended the auction on a promise that the firms would repay the loan.
"The second plaintiff (Ndung'u) as a charger has always had knowledge of the numerous correspondence exchanged between the plaintiffs and the defendant to restructure the loan. The argument that the second plaintiff (Ndung'u) is not a shareholder or a director of the first plaintiff (Simba Fresh) is not a basis to stop the auction in the circumstances of the present case," Equity states.
It adds that as of July 27, 2022, Ndung'u owed it Sh 723 million and has continued to accrue interest.
"The plaintiffs have not submitted any reasonable proposal to settle the outstanding debt. The defendant has given extensive concessions to the plaintiffs since the statutory notice of July 27, 2022, but the plaintiffs have not paid the outstanding loan. The allegation that the defendant has blocked or denied the plaintiffs the opportunity to redeem the security is without basis," Equity in its court papers filed by Hamilton Harrison and Mathews read in part.
Equity hired Garam Investments Auctioneers to sell off Ndung'u's prime property at Gigiri. At the same time, it sought to dispose of three other pieces of land in Solio, Laikipia County which are owned by Homes and Commercial Holdings.
In his case, Ndung'u states Simba Fresh exports fresh produces and herbs to the United Kingdom. According to him, the firm secured from Equity Sh600 million. From the loan, he issued a personal guarantee of Sh300 million while Homes and Commercial issued a corporate guarantee of the same amount.
Meanwhile, the Gigiri property was used as security for Sh300 million while the rest secured the remainder of the debt.
He states that following the Covid-19 pandemic, Simba Fresh negotiated for a moratorium and restructuring of the loan. In the case, he states that owing to the disruptions caused by the pandemic, the firm court does not manage to pay the loan.
He says that as of March 13, 2023, the balance owed to Equity is Sh 664 million.
Ndung'u claims that he was not a guarantor of the loan nor was Homes and Commercial Holdings.
"The defendant has never notified the second and third plaintiff (Ndung'u and Homes and Commercial Holdings ) that the first plaintiff was in default and thereby demanded payment of the amount allegedly secured by them under personal guarantee and the corporate guarantee," claims Ndung'u.
Although Simba Fresh is linked to his family, he claims that he is neither a director nor a shareholder.
"I am aware that in view of the impact of Covid-19 on the fresh produce export business, the first plaintiff has attempted and continues to attempt to procure money to pay off the facility of the defendant and has indeed made or caused to be made in several instances through me although I am neither the director nor a shareholder thereof," he continues.
He claims that as of 2021, Simba Fresh had paid more than Sh 110 million to offset the loan.
According to him, Equity has floated his Gigiri home for Sh 550 million adding that this is an undervaluation. The other three properties are close to 600 acres.