Fidelity Commercial Bank Limited v Fazila Shariff-Tejpar [2015] KECA 377 (KLR)
The bottom line
#Kenya's Court of Appeal held a bank must pay a customer Kshs. 3.1 million it couldn't account for, and cannot blame her for its own dishonest employee.
What this practically means
#Executive summary
#Key legal issues
#Whether the bank accounted for the deposits of Kshs. 2 million and Kshs. 1.1 million
The court affirmed the trial judge's finding that the appellant failed to account for Kshs. 3.1 million due to the respondent; the bank's own statements corroborated the respondent's and her agent's evidence.
The bank's periodic statements tallied with the respondent's evidence on how deposits and accruals were to be applied, and continued to show interest accruing even after the alleged dates of withdrawal. The court found the statements were issued to create the impression that monies had been applied as instructed. The bank's witness did not deal with the fixed deposits and could not say who wrote 'pay cash' on the receipts.
Whether contributory negligence was available against the respondent
Contributory negligence failed on two grounds: it was not specifically pleaded, and on the facts the respondent was blameless in dealing with the bank's Chief Manager.
Following counsel's reliance on Charlesworth & Percy, the court endorsed the rule that contributory negligence must be specifically pleaded. On the merits, the respondent had no reason to doubt the bank's employees, especially its Chief Manager, who was later reported to the Anti-Banking Fraud Unit and disappeared; the respondent could not have anticipated dealing with a potential fraudster.
Legal principles established
#- On a first appeal the Court of Appeal is entitled to re-evaluate and re-analyse the evidence and reach its own conclusion, while bearing in mind the trial judge's advantage of seeing and assessing the demeanour of witnesses.
- An appellate court will not normally interfere with a finding of fact of the trial court unless it is based on no evidence, on a misapprehension of the evidence, or the judge acted on a wrong principle.
- A litigant who alleges contributory negligence must specifically plead it.
- A bank customer who deals in good faith with the bank's senior employee cannot be held contributorily negligent where the bank retained an employee of questionable integrity who defrauded the customer.
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal awarded to the respondent
- On appeal from
- High Court of Kenya at Nairobi, Milimani Commercial Courts
- Civil Case No. 590 of 2004
- Jurisdiction invoked
- First appeal to the Court of Appeal under the applicable appellate statute (not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fidelity Commercial Bank Limited v Fazila Shariff-Tejpar [2015] KECA 377 (KLR)", Case Analysis (2015). Civil Appeal No. 40 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/377/eng@2015-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.