Barclays Bank of Kenya Limited v Samwel Nyalle

4. That as a result of the bank’s actions, the Plaintiff was denied the opportunity to use his title as security with other financial institutions, he was exposed to excruciating stress at an old age, was painted as a person unable or unwilling to meet his obligations to his family and the world. That as such, the Plaintiff suffered loss and damage for which the Defendant was liable and or vicariously liable. 5. The Plaintiff prayed for judgment against the Defendant for: a. An order that the Defendant do supply the Plaintiff with the originals of loan application form for the alleged second loan which allegedly is unpaid, statements showing how the loan was disbursed and the second charge allegedly executed by the Plaintiff. b. An order that if the second loan was ever advanced and it was not then to the extent that the Defendant negligently failed to recover the same from the Plaintiff’s account which had sufficient money since 1990s then the said sum cannot be lawfully recovered after 27 years. c. An order compelling the Defendant to discharge the Plaintiff’s property, being title deed number C.R. 16633 and to immediately and unconditionally return the same to the owner. d. An order for general and aggravated damages, costs and interest. e. Any other reasonable relief that the court may find fair and expedient in the strange circumstances of this case. f. Costs of the suit. 6. The Defendant in their Statement of Defence dated 25th February 2019 maintained that the Plaintiff was issued with a banking facility secured by a charge dated 31 May 1989 over title number C.R. 16633 plot number MN/1/2882 measuring approximately 0.0465 hectares. That the facility was fully repaid and a discharge of charge registered over the title. That the Plaintiff was advanced a second banking facility which was secured by a charge dated 4 July 1991 over the suit land, the loan had not been repaid, with an outstanding loan balance of Kshs. 395,955.35. 7. The matter was heard and judgment delivered on 4th October 2024 where the court found as follows; “ The court therefore finds that due the anxiety and discomfiture the Defendants subjected the Plaintiff to in their retention of the said title document through opaque and high handed reasons, the court is inclined to at the very least award nominal damages to the latter. In so reasoning the court relies on the case of Naivasha Civil Cause 17 of 2015 Shalimar Flowers Self Help Group v Kenya Commercial Bank [2016] eKLR where the case of Civil Case No. 236 of 2003 Simba Commodities Ltd v Citibank N.A. [2013] eKLR was cited. It was held that a bank has a duty under contract with its customers to exercise reasonable care and skill and where such skill and care is part and parcel of its operations no intervention is needed in such conduct. Having considered the totality of the facts and circumstances the court finds that the sum of Kshs. 600,000 as sufficient recompense for the psychological torment that the Defendants subjected the Plaintiff in the unwarranted delay in his discharge from the loan contract and release of the title documents to him. Disposition https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19592/eng@2025-11-27 2

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The Plaintiffs’ case as against the Defendant succeeds and for avoidance of doubt judgment on general damages is allowed to the extent of Kshs. 600,000 together with costs and interest.” 8. Being dissatisfied, the Appellant appealed against the judgment through the Memorandum of Appeal dated 31st October 2024 on grounds that; a. The learned magistrate erred in fact and law in failing to properly evaluate the evidence produced by consent of the parties b. In making a finding of liability against the Appellant without giving concise reasons c. In finding that the Appellant’s release of the Respondent’s title documents was a latent admission of wrongdoing, without considering the Appellant’s evidence and the Respondent’s admission d. For awarding the Respondent nominal damages for psychological torment allegedly caused by the Appellant, for Kshs. 600,000 which was exorbitant and inordinately high in the circumstances of the case e. Disregarding the Appellant’s advocates written submissions and relying heavily on the submissions of the Respondent’s advocates. 9. The Appellant prayed for orders that the appeal be allowed, the whole of the judgment and the resulting decree of the trial court delivered on 4th October 2024 be set aside, and costs of the appeal be awarded to the Appellant. 10. The appeal was canvassed by way of written submissions. The Appellant in their submissions dated 5th May 2025 on whether the Appellant’s witness statement, supporting documents and written submissions were disregarded, argued that contrary to the holding of the trial court, they filed their witness statement and bundle of documents. 11. That in particular, the Appellant’s written submissions highlighted the Respondent’s admission that he left the title with the Appellant for safe keeping. That the trial court failed to consider the Appellant’s written submission and proceeded to make adverse findings. 12. The Appellant submitted on whether the evidentiary burden of proof was met by the Respondent by citing Section 107 (1) of the Evidence Act which provides that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. 13. The Appellant stated that the trial court acknowledged that the Respondent bore the burden of proof of the Appellant’s liability as well as the extent of loss or damage suffered. That however, the Respondent failed to discharge the burden by providing evidence of the loss or damage. 14. That the consent order of 16th December 2021 was arrived at as a settlement between the parties but it was not a reflection of the judicial finding of liability. That the parties voluntarily agreed to resolve the matter without a determination of fault and that no admission of liability should be inferred from the order itself. 15. On whether the trial court’s award for nominal damages for psychological torment was in order, the Appellant submitted that the trial court overlooked the fact that the Appellant had a legitimate claim against the Respondent as the Respondent’s title was encumbered and his loan account was in arrears. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19592/eng@2025-11-27 3

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16. That additionally, the Respondent failed to provide any evidence of anxiety and discomfiture making the trial court’s assumption erroneous. That the relationship between the Appellant and the Respondent was contractual and that general damages are not awarded in cases of alleged breach of contract as was held in Kenya Women Microfinance Ltd v Martha Wangari Kamau [2021] KEHC 3637 (KLR) and the Court of Appeal decision in Kenya Tourist Development Corporation v Sundowner Lodge Limited [2018] KECA 312 (KLR). 17. That additionally, the trial court failed to give a basis for arriving at the sum of Kshs. 600,000 in nominal damages and that there was no comparable authority cited on quantum. 18. The Respondent in his submissions dated 26th May 2025 argued that the Plaint and documents filed in the trial court show that only one loan of Kshs. 250,000 was sought and the sum was fully repaid. That on 21st January 2016, the Respondent who had repaid the loan sought to have the title released with a signed discharge but the Appellant refused to release the same on allegations that there was a second loan and charge. 19. That following the Appellant’s failure to concede to the fact that the Respondent had not taken a second loan, the Respondent filed the suit in the trial court on 24th January 2019 for the Appellant to release the title which was illegally and unreasonably held. That the Respondent also claimed for general and aggravated damages, costs and interest. 20. The Respondent submitted that the Appellant having seen the Certificate of Postal search filed on 17th May 2021 showing that no second charge was ever registered on the Respondent’s property consented to release of the title and a consent was recorded to that effect. 21. That on 6th May 2024, a second consent was recorded and that the two consent orders recorded constituted binding agreements. That by the terms of the consents and the Respondent having succeeded in the main prayer, the parties submitted themselves to assessment of the quantum of damages and the issue of costs. 22. The Respondent argued that though general damages are ordinarily not awarded for breach of contract, they are awarded where the breach occasions losses that go beyond pecuniary losses and are foreseeable or flow from the breach. The Respondent faulted the Appellant’s reliance on the case of Kenya Women Microfinance Ltd v Martha Wangari Kamau [2021] KEHC 3637 (KLR). 23. That in the case, Martha Kamau had taken a commercial loan and defaulted and that Kenya Women Microfinance repossessed her vehicle which had been used as collateral. That the trial court awarded general damages for alleged harassment and loss but the appellate court found that the lender had acted within its contractual rights and that there was no unlawful conduct. 24. The Respondent stated that in contrast to the case herein, the Respondent had fully repaid the loan yet the Appellant/Bank wrongfully withheld the Respondent’s title deed without justification and tried to force the Respondent to repay a loan that he had never applied for or received. That this conduct goes beyond a mere breach of contract and amounts to a violation of the Respondent’s proprietary and constitutional rights. 25. That the continued detention of the title after full repayment amounted to wrongful interference with the Respondent’s proprietary rights, a tortious act capable of attracting nominal or general damages where emotional or psychological suffering is shown. 26. The Respondent relied on the holdings in Micro-City Computers Limited & another v National Social Security Fund Board of Trustees & another [2024] KECA 444 (KLR) and the holding of the Supreme https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19592/eng@2025-11-27 4

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Court of Kenya in Sundowner Lodge Limited v Kenya Tourist Development Corporation [2023] KESC 100 (KLR). Analysis 27. The role of the first appellate court to re-examine and to reevaluate evidence to come up with its own findings was set out in Selle v Associated Motor Boat Co. (1968) E.A 123 as follows: “ … Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect …” 28. I have considered the Record of Appeal, the Supplementary Record of Appeal and submissions by the parties. The issues for determination are: a. Whether the appeal has merits b. What orders on costs should issue 29. It is not in dispute that the Respondent in year 1989 obtained a loan of Kshs. 250,000/= and security given was land registration no. C.R 16633 in plot no. N/1/2882. The loan was repaid. The Appellant allege that the Respondent took a 2nd loan using the same security and that is why they retained the title document. 30. The Appellant denied that that h had taken the 2nd loan and he challenged the Appellant to produce the documents in support of the allegation that he had taken the second loan as alleged. Upon perusal of the pleadings and documents filed, the bank did not produce the documents in support of the allegation that the Respondent had obtained a second loan from the Appellant. 31. This court is in agreement with the Respondent’s reliance of the case of Kenya Akiba Micro Financing Limited v Ezekiel Chebii & 14 others [2012] eKLR in support of the adverse inference drawn by the court, against the Appellant, for failing to produce documents in support of the allegation that the Respondent had taken a second loan. 32. I find that the Respondent has met the evidentiary burden of proof under Section 107 (1) of the Evidence Act to proof the fact that he only took one loan from the Respondent. The burden of proof had shifted to the Appellant to proof its allegation that the Respondent had taken a second loan using the same instruments, but the standard of proof was not met. 33. The Appellant faulted the court for awarding damages yet the parties had recorded a consent dated 16/12/2021.I have perused the proceedings for 16/12/2021 and they are as follows; Mr. Kazungu: - We have agreed by consent that the defendants do release the title to the plaintiff within 60 days from today and there be a discharge of the title within 60 days. The matter be listed for hearing of the remaining prayers in the plaint. M/s Nyambura: - I confirm that is the position. Court:- orders as per the consent. Mention on 28/2/2022. Hon. C.N.Ndegwa Principal Magistrate 16/12/2021 . https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19592/eng@2025-11-27 5

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34. From the above, only prayers (a), (b) and (c) of the Amended Plaint dated 14/12/2020 was spent. Prayer no. (d) seeking for general and aggravated damages, costs and interest was subject for determination by the court. I therefore find no fault by the court in making a determination of the nominal damages. 35. I disagree with the submissions by the Appellant that the said award should not have been granted because the Appellant had a legitimate claim against the Respondent s the title was encumbered and the loan was in arrears. The Appellant having failed to proof that that loan existed and was applied by the Respondent, such argument is hereby dismissed. 36. I find no reason in interfering with the quantum as awarded considering that it had to take a court process to have the title document released by the bank. Based on the above, the court finds that the appeal has got no merits. 37. On costs, the appeal being unsuccessful, I find no reason to deny the Respondent costs of this appeal. Determination 38. The upshot of the foregoing is that the court renders itself as hereunder; i. The appeal, lacks merits and is hereby dismissed. ii. Costs to the Respondent It is so ordered. DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 27TH DAY OF NOVEMBER, 2025. ………………. HON. F. WANGARI JUDGE In the presence of: Mr. Muchiri Advocate h/b for Mr. Deya Advocate for the Applicant Mr. Kazungu Advocate h/b for Mr. Njoroge Advocate for the Respondent Ms. Salwa, Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19592/eng@2025-11-27 6

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