NCBA Bank Kenya Plc v Eins Construction and Suppliers Limited & another (Commercial Appeal E022 of 2024) [2026] KEHC 4252 (KLR) (12 February 2026) (Judgment) Neutral citation: [2026] KEHC 4252 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT MOMBASA COMMERCIAL APPEAL E022 OF 2024 F WANGARI, J FEBRUARY 12, 2026 BETWEEN NCBA BANK KENYA PLC .................................................................... APPELLANT AND EINS CONSTRUCTION AND SUPPLIERS LIMITED ............ 1ST RESPONDENT DALALI TRADER AUCTIONEERS .......................................... 2ND RESPONDENT (Being an appeal against the Judgment of Hon. R.N Akee (SRM) delivered on 7th November 2024 in Mombasa CMCC No. 1889 of 2021) JUDGMENT 1. The Plaintiff/ 1st Respondent through its Plaint dated 19/11/2021 sued the Defendants/ Appellant and 2nd Respondents for judgment inter alia, for refund of Kshs. 7,625,455 and General Damages suffered as a result of an irregular, unprocedural, illegal possession, proclamation and fraudulent sale of motor vehicle registration no. KCN XXXX, Toyota Hilux belonging to the Plaintiffs. 2. It was averred that the Defendant/ Appellant had approved and financed a hire purchase facility to the Plaintiff for the purchase of the said vehicle. The Plaintiff had paid a deposit of Kshs. 1,369,394.39 and the 1st Defendant paid the balance of Kshs. 5,477,577.53. 3. The facility was repayable by 48 monthly instalments of Kshs. 158,670 with the final instalment being Kshs. 157,965. The Plaintiff further averred that upon paying 44 instalments out of 48 instalments, it faced unforeseen financial dificulties in settling the loan. That is when the 1st Defendant possessed the vehicle on an alleged balance of Kshs. 1,126,004.64, which amount was disputed, and the 2nd Defendant fraudulently sold the vehicle whose value was grossly undervalued. The Defendants failed to return the vehicle upon demand hence filing of this suit. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4252/eng@2026-02-12 1
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4. 5. Both parties were heard by the trial court. The trial court made the following orders in favour of the Plaintiff against the 1st Defendant as hereunder; i. Refund of Kshs. 7,625,455 ii. General damages of Kshs. 500,000 iii. Costs of the suit to the Plaintiff Being dissatisfied with the Judgement, the Appellant/ 1st Defendant filed the Memorandum of Appeal dated 06/12/2024 on 7 grounds and prayed that the appeal be allowed and the lower court suit be dismissed with costs. I will deal with the first ground only for reasons to be given herein below. Ground no. 1 stated as follows; 1. The learned Magistrate erred in law and fact in delivering judgment that was in violation of Order 21 rule 4 of the Civil Procedure Rules 2010 thus a nullity. 6. The Appellant in its submissions dated 17/04/2024 submitted that the judgment of the could did not comply with the above provision. It was highlighted that it could not be discerned how the award of general damages were arrived at. On the other hand, the 1st Respondent in its submissions dated 03/02/2026 submitted that the judgment was in compliance with the above mentioned order. 7. Order 21 rule 4 of the Civil Procedure Rules states as follows; “ Judgments in defended suits shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision.” 8. I have perused through the impugned judgment of the court. I do fully adopt the submissions by the Appellant that the judgment was not in compliance of Order 21 rule 4 which is in mandatory terms. I also agree that this court cannot ascertain how the award of general damages was arrived at. As an appellate court, it is impossible to read the mind of the trial court while making the award. I find the trial court fell short of compliance with Order 21 rule 4 was not complied with. 9. Having found as above, the next action as an appellate court is guided by section 78 of the Civil Procedure Act which provides as follows; 1. Subject to such conditions and limitations as may be prescribed, an appellate court shall have power— (a) to determine a case finally; (b) to remand a case; (c) to frame issues and refer them for trial; (d) to take additional evidence or to require the evidence to be taken; (e) to order a new trial. 10. I find that this matter is ripe for retrial. The matter therefore going for retrial, this court needs not dwell on the other grounds of appeal as it will just be an academic exercise. 11. On costs, the appeal being partially successful, each party is to bear its own costs. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4252/eng@2026-02-12 2
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Determination 12. Following the foregone discourse, the upshot is that the following orders do hereby issue: a. b. That the appeal is partially successful and is allowed on the following terms; i. Judgment of the lower court delivered on 07/11/2024 is hereby set aside. ii. The primary file be placed before the Chief Magistrate on 24/02/2026 for re-allocation and re-trial. Each party to bear its own costs. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 12TH DAY OF FEBRUARY, 2026 HON. F. WANGARI JUDGE OF THE HIGH COURT In the presence of; Ms. Cheruiyot Advocate h/b for Mr. Kongere Advocate for the Appellant Ms. Abdala Advocate the 1st Respondent Ms. Salwa, Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4252/eng@2026-02-12 3
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