Suntra Investment Bank Limited v Nicholas William Bentley–Buckle & another (Suing in their capacity as executors of the Estate of ANTHONY WILLIAM BENTLEY-BUCKLE–DECEASED & 3 others (Suing in their Capacity as Executors of the Estate of Anthony William Bentley-Buckle–Deceased) (Civil Appeal 231 of 2020 & 322 of 2019 & E340 of 2021 (Consolidated)) [2025] KECA 1591 (KLR)
The bottom line
#Kenya's Court of Appeal ordered Suntra Bank and a share registrar to return stolen shares but cancelled the Kshs. 10 million damages award.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge erred in finding that both Suntra Investment Bank Limited and Custody & Registrar Services Limited were negligent in the handling of the deceased's 99,100 EABL shares, and whether the deceased was contributorily negligent
- 2.Whether the order directing the appellant and the 2nd respondent to restitute the 99,100 EABL shares was justified on the evidence and the law
- 3.Whether the learned Judge erred in awarding general damages against the appellant and the 2nd respondent
- 4.Whether the learned Judge acted within the law in amending the judgment of 30th May, 2019 under section 99 of the Civil Procedure Act so as to alter the award of general damages from Kshs. 4,000,000 to Kshs. 10,000,000
- 5.Whether the learned Judge erred in awarding interest on the general damages from the date of filing suit rather than from the date of judgment
- 6.What reliefs, if any, should the Court grant, and what orders should be made as to costs of the consolidated appeals
Key legal issues
#Negligence and liability of the CDA and the share registrar
Both Suntra (as CDA) and Custody & Registrar Services (as registrar) were negligent; the deceased was not contributorily negligent.
The CDA certified accuracy of identification particulars on the CDS-1 without any photograph and admitted it had no systems to verify the passport; that certification is the first line of defence against identity theft and cannot be dismissed as ministerial. The registrar dispatched the consolidated certificate to an unverified generic address and failed to flag the hyphenation, address and passport discrepancies against its register. Both breaches converged to enable the impostor; the deceased's omissions did not contribute to the loss.
Restitution of the 99,100 shares
The order of joint and several restitution was affirmed; restitution is the adequate restorative remedy for wrongfully dissipated identifiable property.
Restitution is a logical response where identifiable property has been wrongfully dissipated through a service provider's negligence and the market permits reconstitution of the holding. The order is not punitive but restorative, and it operates jointly and severally, leaving contribution between the wrongdoers to be pursued inter se.
Award of general damages of Kshs. 10,000,000
Set aside in its entirety as unpleaded, unjustified and duplicative of restitution.
The plaint did not include a specific prayer for general damages for negligence; breach of trust and fiduciary duty, the heads in which general damages were prayed, had been rejected. The quantum lacked any articulated criteria, comparators or reasons, with two inconsistent figures. Because restitution of the shares is the adequate remedy, an additional lump sum risks double recovery.
Amendment of the judgment under section 99 of the Civil Procedure Act
The purported amendment changing Kshs. 4,000,000 to Kshs. 10,000,000 was unprocedural and of no effect.
The slip rule empowers correction only of obvious clerical or arithmetical mistakes that do not change the substance or intention of a judgment. Doubling a money award is a substantive alteration. Once the decree was perfected and a notice of appeal filed, the proper routes were review upon proper terms or the appellate process; the section 99 route was a procedural cul-de-sac.
Interest on general damages from date of filing
Awarding interest on unliquidated damages from the date of filing rather than judgment was erroneous in principle, but the point became moot once the damages award was set aside.
The right to unliquidated damages crystallises only upon assessment by the court, so interest ordinarily runs from the date of judgment. The principle was stated for completeness although the setting aside of the general damages award rendered the question academic.
Legal principles established
#- A Central Depository Agent bears a non-ministerial gatekeeping duty to verify identity and certify particulars before opening a CDS account and initiating immobilisation; reliance on the registrar's confirmation does not absolve it.
- A share registrar's verification is the second line of defence; dispatching a consolidated certificate to an unverified address and failing to flag name, address and passport discrepancies falls short of reasonable care.
- Where two or more negligent actors make it impossible for a plaintiff to show which of them caused an indivisible loss, the burden shifts to the defendants to disprove causation, justifying joint responsibility.
- A court cannot award general damages under a head that was not specifically prayed for; parties are bound by their pleadings and courts adjudicate the case presented.
- Section 99 of the Civil Procedure Act (the slip rule) does not permit substantive alteration of a judgment, such as changing a damages award from Kshs. 4,000,000 to Kshs. 10,000,000, particularly after the decree is perfected and an appeal lodged.
- Interest on unliquidated damages ordinarily runs from the date of judgment, not from the date of filing suit.
Court orders
#- 1.The findings of the learned Judge holding Suntra Investment Bank Limited and Custody & Registrar Services Limited jointly and severally liable in negligence for the unlawful immobilisation and sale of 99,100 EABL shares belonging to the estate of the deceased are affirmed
- 2.The order for restitution of the 99,100 shares to the 1st respondents is affirmed, to be completed within 90 days of the judgment, with each party doing all acts and procuring all consents necessary to effect full restoration in the CDSC/EABL register
- 3.The award of Kshs. 10,000,000 as general damages is set aside in its entirety
- 4.It is held that the amendment of the judgment on 17th December 2019 under section 99 of the Civil Procedure Act was unprocedural and a reversible error
- 5.The award of interest on the general damages from the date of filing suit is declared erroneous, but the point is moot in light of the reversal of the award of general damages
- 6.To that extent only the appeals succeed; in all other respects the appeals are dismissed
- 7.Each party shall bear its own costs of the appeals
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi (Milimani)
- HCCC No. 480 of 2014
- Jurisdiction invoked
- First appellate jurisdiction over the High Court under Article 164 of the Constitution (Court of Act Article 164(3)); consolidated first appeals from HCCC No. 480 of 2014
- Consolidated with
- Civil Appeal No. 322 of 2019, Civil Appeal No. E340 of 2020
Relief refused
#Upholding of the award of Kshs. 10,000,000 general damages
General damages for negligence were not pleaded in that head, the quantum lacked any articulated basis, and the award risked double recovery alongside restitution
Setting aside of the finding of negligence and the order of restitution
Both the CDA and the registrar breached their duties of care, causation was established on the record, and the deceased was not contributorily negligent
Claim of contributory negligence by the deceased
The deceased was not contributorily negligent in the loss suffered
Costs
Each party shall bear its own costs of the appeals, considering that the 1st respondents succeeded in upholding the restitution of shares, while the appellant and the 2nd respondent succeeded in overturning the award of general damages.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Those are not venial box-ticking formalities. They are the first line of defence against identity theft.
The losses fiowed from converging breaches by both the appellant and the 2nd respondent.
a court will not grant a remedy that has not been applied for, nor determine matters not pleaded
Changing a money award from Kshs. 4,000,000 to Kshs. 10,000,000 is not a clerical tweak. It is a substantive alteration with real consequences
Interest on unliquidated damages ordinarily runs from the date of judgment because the right to the sum crystallizes only upon assessment
Each party shall bear its own costs of the appeals, considering that the 1st respondents have succeeded in upholding the restitution of shares, while the appellant and the 2nd respondent have succeeded in overturning the award of general damages.
The award of Kshs. 10,000,000 as general damages (having initially been indicated as Kshs. 4,000,000) is hereby set aside in its entirety.
Issues in the judgment
#The parties are labelled inconsistently relative to their appellate roles: Suntra Investment Bank Limited is 'the appellant', while Custody & Registrar Services Limited, though itself an appellant before this Court, is referred to throughout as 'the 2nd respondent', and the executors (respondents on appeal) are called 'the 1st respondents'. In ground 1 of Civil Appeal No. E340 of 2020 the judgment says the learned Judge erred 'in finding the appellant liable for negligence', apparently meaning Suntra, though that ground belongs to Custody's appeal.
The judgment inconsistently dates the original High Court judgment as 30th May, 2019 in the introduction but later refers to 'the Judgment dated 19th May, 2019' in the parties' submissions.
Custody & Registrar Services Limited, which filed Civil Appeal No. E340 of 2020 as an appellant, is referred to throughout as 'the 2nd respondent', and the 1st respondents' submissions are recorded while their role as respondents to that appeal is not separately delineated; the classification of the 2nd respondent's cited authorities is correspondingly rendered as interested_party submissions by a party aligned against the 1st respondents.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Suntra Investment Bank Limited v Nicholas William Bentley–Buckle & another (Suing in their capacity as executors of the Estate of ANTHONY WILLIAM BENTLEY-BUCKLE–DECEASED & 3 others (Suing in their Capacity as Executors of the Estate of Anthony William Bentley-Buckle–Deceased) (Civil Appeal 231 of 2020 & 322 of 2019 & E340 of 2021 (Consolidated)) [2025] KECA 1591 (KLR)", Case Analysis (2025). Civil Appeal No. 231 of 2020 (lead file), consolidated with Civil Appeal No. 322 of 2019 and Civil Appeal No. E340 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1591/eng@2025-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.