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Court of AppealDismissedCivil Appeal No. 40 of 2009· [2015] KECA 377 (KLR)

Fidelity Commercial Bank Limited v Fazila Shariff-Tejpar [2015] KECA 377 (KLR)

Court of Appeal
25 September 2015
1,789 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The respondent, a customer of the appellant bank, placed fixed deposits which were rolled over and administered through the bank's Chief Manager, Mr. Azfar Abbas. She claimed Kshs. 3,100,000 which the bank failed to account for. The bank's defence was that the monies had been withdrawn by the respondent or her agent, her mother, who had signed instructions on the back of the receipts; alternatively, the respondent was guilty of contributory negligence for entrusting her banking to Abbas. The High Court (Okwengu, J) found for the respondent on 6th October 2008, and the bank appealed on two condensed grounds: that the deposits of Kshs. 2 million and Kshs. 1.1 million had been collected by the respondent's agent, and that the respondent was contributorily negligent. The Court of Appeal, in a single judgment of the court delivered on 25th September 2015, dismissed the appeal. Applying the settled first-appeal jurisdiction to re-evaluate evidence while respecting findings of fact, the court held that the bank's own statements corroborated the respondent's evidence and continued to show interest accruing after the alleged withdrawals, defeating the claim that the agent had collected the monies. On contributory negligence, the court endorsed the requirement that it be specifically pleaded, and held that the respondent, who dealt in good faith with the bank's Chief Manager, could not be blamed where the bank retained an employee of questionable integrity later reported to the Anti-Banking Fraud Unit. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Whether the bank accounted for the deposits of Kshs. 2 million and Kshs. 1.1 million

Holding

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.

Reasoning

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.

p. 3
02

Whether contributory negligence was available against the respondent

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Appeal dismissed
  2. 2.Costs of the appeal awarded to the respondent

Authorities

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Cases cited (2)

  • Selle & Another vs Associated Motor Boats Co. Ltd
    [1968] EA 123
  • Jabane vs Olenja
    [1986] KLR 661
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.