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Case Brief · caselaw.co.ke
High CourtPartially AllowedNot stated in the judgment (related: Nakuru HCCC No. 35 of 2017 (O.S))

Reuben Kioko Mutyaene v Kenya Commercial Bank Ltd & Transunion Credit Bureau Africa Ltd (Interested Party)

High Court of Kenya
27 May 2020
6,000 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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Banks must exercise extreme caution when listing customers with credit bureaus, particularly during loan negotiations, to avoid negligence claims.

What this practically means

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Executive summary

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The plaintiff, a former employee of Kenya Commercial Bank, sued the Bank and Transunion Credit Bureau Africa Ltd (the Interested Party) after the Bank listed him with credit reference bureaus in 2012 and 2014 while negotiations over the amalgamation of his loan facilities were ongoing, without issuing adverse action notices and over an unascertained amount. A mutually agreed settlement sum was reached, payable by 30/11/2012; the debt was fully paid by 29/11/2013, but the listing was only lifted in May 2019. The suit, filed out of time with leave granted by Ndungu J in Nakuru HCCC No. 35 of 2017 (O.S), sought declarations of negligence, breach of statutory duty, breach of contract, constitutional violation and breach of the Fair Administrative Action Act, expungement of the listing, notice of change to subscribers, damages in lieu of apology, special and general damages. The court upheld the extension of time, applying Mary Wambui Kabugu and s.27(2) of the Limitation of Actions Act, finding the decisive facts were outside the plaintiff's knowledge. It held the Bank's premature, unnotified and inaccurate listing was done in bad faith, breaching Regulations 25(1) and 25(8) of the CRB Regulations 2013 and the bank-customer duty of care, and absolved the CRB, which relies on information furnished by the Bank. The defamation claim was dismissed for failure to plead the words complained of and lack of proof; special damages and loss of earning capacity claims failed for want of strict proof. The plaintiff was awarded Kshs.400,000 in general and aggravated damages with interest at court rates, and each party was ordered to bear its own costs.

Key legal issues

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01

Extension of time to file suit out of time

Holding

Leave granted by Ndungu J was upheld; the plaintiff satisfied s.27(2) of Cap 22 as the decisive facts (the CRB listing) were outside his knowledge

Reasoning

The court applied Mary Wambui Kabugu: an extension order may be challenged at trial on facts. The plaintiff proved he was unaware of the CRB listing during negotiations and even after full repayment, meeting the s.27(2) requirement that facts of decisive character were outside his knowledge until after the limitation period.

p. 6
02

Defamation claim arising from CRB listing

Holding

Dismissed for failure to plead the defamatory words with particulars and failure to prove the claim

Reasoning

Order 2 rule 7(1) CPR requires particulars of defamatory sense; the plaint did not state the words complained of. Following Alice Njeri Maina, publishing a non-performing loan to a CRB under the Regulations is not per se defamatory, and malice was not shown.

p. 6
03

Negligence, breach of statutory duty and breach of contract by the Bank

Holding

Established: the Bank listed the plaintiff prematurely, without notice, over an unascertained amount, and failed to rectify or delist after full payment

Reasoning

The bank-customer relationship imposes a duty of reasonable care and skill (National Bank of Kenya v Ogetta). Regulation 25(1) and 25(8) of the CRB Regulations 2013 required notice of intention to list and post-furnishing notification. The Bank admitted it gave no notice, listed during negotiations over an inaccurate amount, and delayed delisting until May 2019 despite payment in 2013.

p. 9
04

Interested Party's indemnity claim against the Bank

Holding

The CRB was absolved; the duty to furnish accurate and updated information rested on the Bank under Regulation 28(3),(4),(5)

Reasoning

DW1 testified the CRB relied entirely on information furnished by the Bank, which is liable for accuracy. The Bank failed to update and to issue amendment notices. The claim against the CRB was dismissed and its indemnity position effectively vindicated.

p. 9
05

Quantum of damages

Holding

Special damages and loss of earning capacity claims dismissed for want of strict proof; general and aggravated damages of Kshs.400,000 awarded

Reasoning

Special damages must be specifically pleaded and strictly proved (Herbert Hahn v Amrik Singh). The auditor's cash-flow projections were discounted as prepared for the suit (Five Continents v Mpata Investments). Harm was temporary since the listing was lifted; following Jamlick Gichuhi Mwangi, a moderate award was appropriate for the temporary inconvenience and economic embarrassment.

p. 12

Legal principles established

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  • A bank must issue a notice of intention to submit negative information to a CRB before listing a customer, and where the amount is unascertained and under negotiation, listing is premature and in bad faith
  • A credit information provider remains obliged to rectify inaccurate listings and notify the customer after furnishing information to a bureau
  • The CRB is not liable for inaccurate information furnished by a bank; liability for accuracy rests with the credit information provider
  • An order extending time to sue is not final; the trial court finally determines whether the conditions for extension are satisfied

Court orders

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  1. 1.A declaration that the Defendant's actions towards the plaintiff amounted to negligence and breach of care and contract
  2. 2.Prayers (ii), (iii) and (v) in the plaint declared overtaken by events
  3. 3.The claim for special damages dismissed
  4. 4.The plaintiff awarded Kshs.400,000/= in general and aggravated damages
  5. 5.The award to accrue interest at court rates from the date of judgment
  6. 6.Each party to bear own costs of the suit
Jurisdiction invoked
Original civil jurisdiction of the High Court; suit filed out of time by leave granted under the Limitation of Actions Act, Cap 22

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, "Reuben Kioko Mutyaene v Kenya Commercial Bank Ltd & Transunion Credit Bureau Africa Ltd (Interested Party)", Case Analysis (2020). Not stated in the judgment (related: Nakuru HCCC No. 35 of 2017 (O.S)). Source: 

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