Banks’ Right to Set Off Allowed against Accounts held by Related Companies

Banks often have standard terms and conditions with borrowers which entitle them to set off a borrower’s debts against amounts held in different accounts of the same borrower. The right to set off is typically provided for in well drafted loan documents but it is also an implied right that bankers have under banking law. In the context of a bilateral loan agreement, the implied right of set off does not extend to the bank accounts of anyone other than the borrower. This is also consistent with the common law principle of privity of contract which essentially means that a contract cannot bind anyone other than the parties who made the contract.

In a recent landmark ruling in the case of Embakasi Management Limited & 8 others v Imperial Bank Limited (In Receivership) & another [2022] KECA 7 (KLR), the Court of Appeal applied a rather interesting exception to the doctrine of separate legal personality and privity of contract. It held that a bank may exercise rights of set off against related companies on the basis of common directorship and common shareholding, even though the related companies are not parties to the set off agreement between the bank and the borrower. The precedent-setting case reflects a dramatic departure from the standards applied when piercing the corporate veil. Previously, fraudulent or improper conduct was used as the trigger for piercing the corporate veil. This alert examines the Court’s ruling and considers its impact on corporate borrowers.

Background Facts
The nine Appellants were private limited liability companies which were related to Farm Africa Mills Investments Limited (the Borrower) by virtue of common shareholding and directorship, and held various current and fixed deposit accounts with Imperial Bank (in Receivership) (the Bank). The Borrower took out a hire purchase facility with the Bank. At the time of taking out the hire purchase facility, a Director of the Borrower (who was a common director and shareholder in all the related companies) signed a set off form allowing the Bank to set off any debts due from the Borrower, against the accounts of its related companies. The nine related companies were not party to the agreement with the Bank and other directors and shareholders in those companies claimed that they had never expressly agreed to the same.

The Borrower later defaulted on its payment obligations and because of the set off provision, the Bank proceeded to set off the Borrower’s debts against balances held in the accounts of the related companies. The related companies sued the Bank and the High Court ruled in favour of the Bank. The matter subsequently proceeded to the Court of Appeal.

The Appellants sought to have the High Court’s ruling struck out at the Court of Appeal. The basis of the Appellant’s argument was that the High Court had no legal grounds for upholding the Bank’s decision to set off the amounts due to it by combining and consolidating the accounts held by the related companies.

In a precedent setting decision, the Court of Appeal upheld the High Court ruling in favour of the Bank. We summarise some of the key insights from the decision below:

1. In a case where a set off form is signed by one company which confirms that monies held by other related companies can be applied towards the debt due from it to the bank, the bank can go behind the corporate veil of the borrower to determine who controls it and which other companies are controlled by the same person(s).
2. Further, the Appellants’ argument that they were not party to the set off agreement because they never signed it could not be allowed to stand, as they were expressly committed to the said agreement by their common director and shareholder. This is despite the fact that he was not the sole director or shareholder of the companies. The Court stated that the Appellants could not rely on the corporate veil to avoid their legal and contractual obligations having been found to be related companies to the Borrower.
3. The Court of Appeal reiterated the cardinal principle that a company is distinct and separate from its shareholders citing the famous case of Salomon vs Salomon and Co. Ltd (1897) AC 22 HL but went on to qualify this position by stating that the corporate veil can be lifted if there is evidence that it is being used to shield fraud or improper conduct by the shareholders or controllers of a company. However, the decision of the Court of Appeal in the Embakasi case does not refer to any fraud or improper conduct on the part of any person, with the consequence that this ruling is a precedent from the position that the mere non-payment of debt by a borrower is sufficient to lift the corporate veil.

Conclusion
This decision is precedent setting and will send shockwaves in the debt and security market in Kenya. Even though the Court of Appeal’s rationale was premised on the fact that the set off agreement contained an express provision allowing the Bank to set off any debts due from the Borrower against the accounts of its related companies, it did not consider the absence of agreement of the related parties to the set off provision as relevant. The only fault of the Borrower here appears to be a failure to pay as there is no reference in the ruling to there being any evidence of fraud or other misconduct. The case, therefore, presents uncertainty for borrowers, as well as a significant increase in the risk of related corporate borrowers.

In the past, the Courts have been reluctant to lift the corporate veil unless it is found that the company was a mere instrumentality or alter ego of its directors and/or shareholders in any misconduct or if it was found that maintaining the corporate veil would sanction fraud or injustice.

The Court of Appeal, in this case, said that the Appellants could not argue that they were not party to the loan and set-off arrangement between the Borrower and the Bank because of the common director and shareholder, alluding to the analogy that it was akin to alleging that the right-hand does not know what the left hand is doing yet they are part of the same body and mind.

Should you have any questions regarding the information in this legal alert, please do not hesitate to contact Sonal Tejpar or Wangui Kaniaru.

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Contributors
1. Mungai James Njenga – Senior Associate
2. Wabia Nganatha Karugu – Trainee Lawyer
3. Anne Mburu – Trainee Lawyer