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Court of AppealDismissedCivil Appeal No. 57 of 2012· [2015] KECA 360 (KLR)

Julius Kulundu Asiba v Consolidated Bank of Kenya [2015] KECA 360 (KLR)

Court of Appeal of Kenya
9 October 2015
WKW. KaranjaPhilomena Mbete MwiluP.M. MwiluSKS. ole Kantai
1,912 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal confirmed that being freed of criminal charges does not stop a bank from recovering money paid on a forged cheque.

What this practically means

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Executive summary

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The Court of Appeal (Karanja, Mwilu and ole Kantai, JJ.A.) dismissed this first appeal against a High Court judgment (Njagi, J., 31 January 2012) which had ordered the appellant to refund to Consolidated Bank of Kenya Kshs.3,592,663/65 released to him on a US$67,400 foreign cheque later dishonoured as a forgery, and had dismissed his counter-claim for his credit balance and damages for defamation. The appellant argued that the withdrawal of criminal charges under Section 87A of the Criminal Procedure Code and an acquittal under Section 210, arising from the same cheque, exonerated him so that the civil court could not find otherwise, and that forgery allegations demanded a higher standard of proof. The Court held that in neither criminal case was the appellant tried and acquitted on the evidence: the first charges were withdrawn before investigations were complete, and the second case ended in acquittal for want of prosecution after the prosecutor sought withdrawal. With no substantive findings of evidence, the appellant could not claim the shield of an acquittal, and in any event the civil claim was one for money paid on a cheque that turned out to be a forgery, an ordinary civil claim on a balance of probabilities. The Court further found that the deposit slip particulars matched the cheque produced in evidence, endorsed 'FORGERY', and that a forged cheque is a nullity conferring no proceeds, entitling the respondent to a refund. The defamation and counterclaim grounds were not pursued. The appeal was dismissed with costs to the respondent. This judgment now binds subordinate courts on the effect of non-substantive acquittals on parallel civil claims.

Key legal issues

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01

Effect of withdrawal of charges under Section 87A and acquittal under Section 210 of the Criminal Procedure Code on a civil suit

Holding

Neither the withdrawal nor the acquittal vindicated the appellant, because neither criminal case produced substantive findings on evidence; the appellant was not entitled to the shield of an acquittal.

Reasoning

In the first criminal case charges were withdrawn because investigations were incomplete; in the second there was an acquittal for want of prosecution after the prosecutor sought withdrawal. In neither instance did the court rule on the substantive evidence. The High Court judge's analysis of the standard of proof was fully agreed with, and the civil claim rested on repayment of money paid on a cheque that proved to be a forgery, independent of criminal culpability.

p. 3
02

Whether the cheque produced in evidence was the one deposited by the appellant

Holding

The deposit slip details (drawer number 18292, Worth National Bank, Texas, US$67400) matched the cheque produced as exhibit No. 5, endorsed 'FORGERY'; the identification was sound.

Reasoning

The court compared the particulars recorded on the appellant's own deposit slip with the cheque produced in evidence and found them identical. Supporting telex communications between the respondent and Citibank NA showed clearance, reversal, and charges for handling a forged cheque, confirming that the funds released against the cheque had to be refunded once forgery was established.

p. 3

Legal principles established

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  • An acquittal arising from withdrawal of charges or want of prosecution, where no substantive findings on evidence were made, does not bar a subsequent civil claim on the same facts
  • A forged cheque is a nullity and no person is entitled to its proceeds; a bank that released funds on such a cheque may recover them from the depositor
  • A claim for money had and received on a forged cheque is an ordinary civil claim governed by the balance of probabilities, not by the criminal standard of proof

Court orders

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  1. 1.Appeal dismissed with costs to the respondent

Authorities

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Legislation

  • Criminal Procedure CodeSection 87A
  • Criminal Procedure CodeSection 210
On appeal from
High Court of Kenya at Nairobi
HCCC No. 535 of 2007
Jurisdiction invoked
First appeal to the Court of Appeal from the High Court (unspecified statutory provision in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Julius Kulundu Asiba v Consolidated Bank of Kenya [2015] KECA 360 (KLR)", Case Analysis (2015). Civil Appeal No. 57 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/360/eng@2015-10-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.