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Court of AppealDismissedCivil Appeal No. 84 “A” of 2016· [2018] KECA 123 (KLR)

Kenya Commercial Bank Limited v Shalimar Flowers Self Help Group [2018] KECA 123 (KLR)

Court of Appeal of Kenya
22 November 2018
3,826 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal confirmed KCB must fully repay a flower workers' group after releasing funds without proper checks on suspicious withdrawals.

What this practically means

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Executive summary

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This was a first appeal by Kenya Commercial Bank against a High Court judgment (C. Meoli, J.) holding it 100% liable in negligence for unauthorized withdrawals of Kshs 2,216,182 from a savings account and 43,817 Euros from a Euro account belonging to Shalimar Flowers Self Help Group, a welfare body of flower farm workers whose funds the bank held in trust. Four missing cheque leaves were used to draw the savings account funds, while the Euro account was accessed through written requests. The Court of Appeal (Nambuye, Sichale and Kantai, JJ.A) framed two issues: whether the bank was negligent or failed to exercise due diligence, and whether it should have inquired into the respondent's internal affairs. Applying the Selle retrial principles, the Court found the respondent had discharged its evidential burden; the bank's sole witness admitted he never handled the impugned cheques, and the bank failed to call the staff who processed them, attracting an adverse inference. On the Euro account, the Court endorsed the trial Judge's finding that the bank ignored red flags — exceptional purpose, amount and chronology of transfers to a non-trading welfare group — and merely called the same telephone number and signatory on all five occasions instead of making a more extensive inquiry, contrary to the practice of involving the Fair Trade Officer or Farm Manager. The appeal was dismissed in its entirety, with costs of the appeal and the proceedings below awarded to the respondent.

Key legal issues

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01

Whether the respondent discharged its burden of proving that withdrawals from the savings account were unauthorized and that the bank was negligent

Holding

Yes. The respondent proved its assertions; the appellant failed to call the employees who handled the impugned cheque transactions to rebut the allegations, and the adverse inference was drawn against it.

Reasoning

The Court applied sections 107, 109 and 112 of the Evidence Act, holding the customer bore the initial burden. The respondent tendered two witnesses whose evidence that the withdrawals were unauthorized stood uncontroverted. The bank's sole witness admitted he never dealt with the impugned cheques, which were processed in Nairobi. Allegations of breach of contract and lack of due care called for rebuttal evidence from the processing staff; none was called and no explanation given, justifying an adverse inference under section 143 of the Evidence Act.

p. 6
02

Whether the bank exercised reasonable care and skill in releasing funds from the Euro account

Holding

No. The bank approved five large transfers in quick succession after calling the same telephone number and speaking to the same signatory each time, ignoring red flags including the account's welfare purpose and the practice of involving the Fair Trade Officer or Farm Manager.

Reasoning

The Court endorsed the trial Judge's factors: the funds were trust funds for the benefit of the wider membership of a non-trading self-help group; the withdrawals were exceptional in purpose, amount and chronology; two former officials had been prosecuted and convicted; and a practice of involving a mandatory signatory (Fair Trade Officer or Farm Manager) existed. Merely verifying signatures and calling the selfsame number and signatory, who misled the bank, fell short of the reasonable skill and care required of a paying bank in those exceptional circumstances.

p. 3
03

Whether the trial Judge erred in fixing 100% liability on the appellant

Holding

No. The Court found the Judge's reasoning well founded on both facts and law and declined to disturb the finding of total liability.

Reasoning

Sitting as a first appellate court, the Court re-evaluated the evidence and the rival submissions, applying the Selle retrial principles. It found the Judge's reasons for holding the bank wholly liable — failure to verify signatures on the savings account cheques and failure to make more extensive inquiries on the Euro account — unimpeachable. It accordingly found no merit in the appeal and dismissed it in its entirety, with costs to the respondent both here and below.

p. 6

Legal principles established

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  • A first appeal is by way of retrial and the Court of Appeal is not bound to follow the trial Judge's findings of fact where he failed to take account of particular circumstances or probabilities or where the impression of the demeanour of a witness is inconsistent with the evidence generally.
  • A bank which releases funds without tendering evidence from the employees who handled the impugned transactions, where such evidence was called for in rebuttal of allegations of breach of contractual obligation and lack of due care, risks an adverse inference that the withheld evidence would have been adverse to its case.
  • The burden lies on the customer in the first instance to prove the particulars of negligence attributed to a bank, in terms of sections 107, 109 and 112 of the Evidence Act.

Court orders

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  1. 1.The appeal is dismissed in its entirety
  2. 2.The respondent is awarded costs of the appeal and the proceedings in the court below

Authorities

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Legislation

  • Cheques Act (Cap 35, Laws of Kenya)section 4
  • Bills of Exchange Act (Cap 27, Laws of Kenya)section 60(1) & (2)
  • Evidence Act (Cap 80, Laws of Kenya)section 107(1) & (2)
  • Evidence Act (Cap 80, Laws of Kenya)section 109
  • Evidence Act (Cap 80, Laws of Kenya)section 112
  • Evidence Act (Cap 80, Laws of Kenya)section 143
  • Societies Act

Cases cited (7)

  • London Joint Stock Bank Limited –versus- Mac Millan
    [1918] A.C. 777
  • Green Wood –versus- Martins Bank Ltd
    [1933] A.C. 51
  • Roberts and others –versus- Tucker
    [1851] 16 QB 560, 117 ER 994
  • Governor and Company of Ireland –versus- the Trustees of Evans
    [1855] 5.HCC 389; 10 ER 950
  • Selle & Another versus Associated Motor Boat Company Ltd and Others
    [1968] 1 EA 123
  • Kenya Garage Vehicle Industries Ltd -versus Southern Credit Banking Corporation Ltd
    [2014] eKLR
  • Simba Commodities Limited -versus Citibank N.A.
    [2013] eKLR
On appeal from
High Court of Kenya
Naivasha HCCC No. 17 of 2015 (Formerly Nakuru HCCC No. 297 of 2009)
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (statutory first appeal from the High Court)

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, "Kenya Commercial Bank Limited v Shalimar Flowers Self Help Group [2018] KECA 123 (KLR)", Case Analysis (2018). Civil Appeal No. 84 “A” of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/123/eng@2018-11-22

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