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Court of AppealPartially AllowedSecond Appeal from High Court Civil Appeal No. 13 of 2019 (Busia)

Wambia v Co-operative Bank of Kenya Limited (Civil Appeal 168 of 2020) [2025] KECA 1644 (KLR)

Court of Appeal of Kenya
3 October 2025
2,955 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed banks must give customers 30 days' written notice every time they report negative credit information to a credit reference bureau.

What this practically means

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Executive summary

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This was a second appeal by Vitalis Makokha Wambia against the High Court at Busia (W. Kiarie J.), which had dismissed his first appeal from the trial court's judgment rejecting his claim that Co-operative Bank of Kenya had wrongly and without notice listed him as a loan defaulter with the Metropol Credit Reference Bureau. The Court of Appeal, per a single judgment of the full bench (Asike-Makhandia, P. Nyamweya and L. Kimaru, JJA), restated its duty on second appeals to confine itself to matters of law, while noting that a first appellate court's failure to re-evaluate evidence is itself a point of law. The Court affirmed the finding that the appellant owed Kshs 8503.55, since a bank statement and credit report showed that outstanding debt. However, it found that the High Court erred on the referral to the credit reference bureau: the bank proved notices only for the first referral in February 2012 (relating to arrears of Kshs 19,881.35) but produced no evidence of notices for the second referral in 2015, which had precipitated the suit. Applying section 31 of the Banking Act and regulation 26 of the Banking (Credit Reference Bureau) Regulations 2020, the Court held that notice of at least thirty days before furnishing negative credit information is mandatory and applies every time such information is furnished, being also a basic element of fair administrative action. The Court set aside both judgments below, ordered removal of the Kshs 8503.55 arrears from the appellant's credit information, directed compliance with the Regulations for any future negative reporting, awarded the appellant costs at all three levels, and awarded nominal general damages of Kshs 100,000 with interest because the loan arrears dispute remained unresolved.

Key legal issues

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01

Scope of a second appeal to the Court of Appeal

Holding

The Court confined itself to matters of law, per Stanley N Muriithi & another v Bernard Munene Ithiga, but treated failure by a first appellate court to re-evaluate evidence as a point of law.

Reasoning

The Court invoked its settled duty on second appeals, namely to determine questions of law only, while retaining jurisdiction to intervene where the courts below considered matters they should not have, omitted matters they should have considered, or where the decision is perverse. Failure to re-evaluate evidence leading to a wrong conclusion qualifies as a point of law.

p. 3
02

Whether the appellant's indebtedness of Kshs 8503.55 was proved

Holding

The finding by the High Court on the appellant's indebtedness was supported by the evidence on record.

Reasoning

The record contained demand letters on principal arrears of Kshs 19,881.35, a mini statement reflecting payments and a nil balance as at 20th December 2012, but also a bank statement showing a debit balance of Kshs 8503.55 as at 6th January 2015 and a credit report showing the information updated to a debt of Kshs 8504/= on 7th November 2016. The Court was thus persuaded the indebtedness finding was supported by the evidence.

p. 4
03

Fairness and legality of the second referral of the appellant to a credit reference bureau in 2015

Holding

The High Court's findings on the referral were not supported by the evidence and the law and were in error; the 2015 referral was made without the mandatory notice.

Reasoning

The respondent proved notices for the first referral in February 2012 relating to arrears of Kshs 19,881.35, but produced no evidence of notices for the second referral in 2015 which precipitated the suit. Regulation 26(1) mandatorily requires at least thirty days' written notice before furnishing negative information, and regulation 26(2) confirms the mandatory character of that requirement by carving out only positive information. Notice is also a basic element of fair administrative action enabling the customer to dispute inaccuracies under regulations 26(3) to 26(8).

p. 4

Legal principles established

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  • It is mandatory that notice of the intention to furnish any negative credit information to a credit reference bureau be given to a customer, and that requirement applies every time such negative credit information is furnished by a bank.
  • The 30-day notice of intention to submit negative information applies on every occasion that negative credit information is furnished, not only on the first referral.
  • On a second appeal, the Court of Appeal confines itself to matters of law unless the two courts below considered matters they should not have, failed to consider matters they should have, or the decision is perverse; failure by a first appellate court to re-evaluate evidence is a point of law.

Court orders

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  1. 1.Set aside the judgment delivered on 30th September 2020 by the High Court of Kenya at Busia (W. Kiarie J.) in Civil Appeal No. 13 of 2019
  2. 2.Set aside the judgment delivered on 28th May 2019 in Busia Chief Magistrate's Court Civil Case No.110 of 2017 (Hon. M.A Odhiambo RM)
  3. 3.Ordered the respondent to forthwith update the appellant's credit information with the relevant credit reference bureaus by removal of the loan arrears of Kshs 8503.55
  4. 4.Ordered the respondent to comply with the procedure set out in the Banking (Credit Reference Bureau) Regulations 2020 with respect to the furnishing of any negative credit information to credit reference bureaus in relation to the said loan arrears
  5. 5.Awarded the appellant the costs of the suit in the trial Court, of the appeal in the High Court and of this appeal
  6. 6.Awarded nominal general damages of Kshs.100,000/- to the appellant against the respondent, with interest at court rates from the date of the judgment until payment in full
On appeal from
High Court of Kenya at Busia
Civil Appeal No. 13 of 2019
Jurisdiction invoked
Second appeal to the Court of Appeal under the appellate jurisdiction of the Court (matters of law only in second appeals)

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, "Wambia v Co-operative Bank of Kenya Limited (Civil Appeal 168 of 2020) [2025] KECA 1644 (KLR)", Case Analysis (2025). Second Appeal from High Court Civil Appeal No. 13 of 2019 (Busia). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1644/eng@2025-10-03

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