David Njuguna Ngotho & 1 other v Family Bank Limited

The trial court confronted two inconsistent and mutually exclusive pieces of evidence: the appellant's inventory dated 1st April 2015 and the auctioneer's proclamation and notification of sale. The inventory contained items absent from the notification of sale, and the appellant's stock records covered only three months. The court found the appellant's document fabricated for the litigation and adopted the notification of sale as the prima facie evidence of the goods actually removed. The appellate court found no basis to disturb that credibility-based finding, the trial judge having seen and heard the witnesses.

The repairs to the premises were done long before the attachment and there was no evidence of post-attachment repairs, so no causal correlation was established. As for salaries, although two witnesses testified about their own employment, there were no payment vouchers or acknowledgments; one witness admitted he had not been paid, and there was no evidence at all about the other four alleged employees. Special damages require strict proof, which was absent.

The audited accounts rested on a narrow evidential base: stock records for only three months of 2015, no books of account, no bank statements, no prior-year accounts, and an admission that no tax returns were ever filed. Expert opinion evidence is not binding on a court; the trial court must decide whether it believes the expert and give reasons, and may reject opinion that is not soundly based. The trial court's refusal to give weight to the accounts could not be faulted.

Under section 26(1) of the Civil Procedure Act, awards of interest are discretionary. An appellate court will not interfere with a discretionary decision unless it was wrong in principle or based on a failure to consider relevant factors. Here the trial court simply did not address interest, so there were no reasons for its denial; the 1st appellant was therefore entitled to interest at court rates from the date of the trial judgment.

The joinder ruling was never appealed and she fully participated in the trial, so it was too late to challenge it. She admitted using the 1st appellant's business name and documents to obtain a loan of Kshs 1,500,000, defaulting on it and offering the 1st appellant's stock as collateral. Third-party liability does not depend on an indemnity clause in the loan agreement but on proof of wrongdoing warranting an order of indemnity; the court found she was the real mischief maker.