Co-operative Bank of Kenya Ltd v Downlake Investments Ltd & 3 others

Background to the Appeal 4. The 1st Respondent’s case before the trial court, as pleaded in the Amended Plaint dated 5th June 2020, was that sometime in the year 2012 the 2nd Respondent, acting as a land broker, approached it and represented that there was prime property available for purchase at Konya, Kajulu. The 2nd Respondent thereafter introduced the 1st Respondent to a person whom he presented as Walter Ambajo Adero, the registered proprietor of land parcel Kisumu/Konya/2551 (“the suit property”). 5. On 8th November 2012 the 1st Respondent entered into an agreement for sale with the said Walter Ambajo Adero at a consideration of Kshs. 7,000,000/=. The 1st Respondent instructed the rm of M/s Wasuna & Company Advocates to act for it in the transaction. An ocial search was conducted at the Kisumu Lands Registry, the consent of the Land Control Board was procured, stamp duty and registration fees were paid, and on 18th April 2013 a title deed in respect of the suit property was issued in the name of the 1st Respondent. 6. Part of the purchase price was paid to the vendor through the 1st Respondent’s advocates. The balance was remitted into account number 0110xxxxxxx500 held in the name of Walter Ambajo Adero at the Appellant’s Aga Khan Walk Branch, the particulars of which account were communicated to the 1st Respondent by its own advocates by the letter produced at the trial as Plainti’s Exhibit 5. 7. Towards the end of the year 2013 the 1st Respondent engaged a contractor to clear and fence the suit property. Barely two days after the works were completed, a group of persons descended upon the property, pulled down the fence and carried away the poles and barbed wire, asserting that the land belonged to one Walter Ambajo Adero who had neither sold it nor received any consideration for it. By a letter dated 13th November 2013 the County Land Registrar informed the 1st Respondent that the title surrendered at the time of registration of the transfer was a forgery, and called upon the 1st Respondent to surrender its own title for cancellation. 8. Police investigations thereafter established that the passport used to open the account with the Appellant did not belong to the person who had presented it. It was upon that footing that the Appellant was joined to the suit, the 1st Respondent contending that the fraudulent transfer of its money had been aided by the Appellant’s own negligence and by its failure to exercise due diligence, professionalism and utmost good faith so as to forestall the impugned transactions. 9. The 1st Respondent prayed for Kshs. 7,394,950/= being the sum expended on the purchase price and registration expenses over the suit property; special damages of Kshs. 394,200/= made up of Kshs. 314,200/= for the vandalised barbed wire fence and Kshs. 80,000/= being the cost of hiring an advocate to prepare the sale agreement and the transfer instrument; interest; and costs. 10. The 2nd Respondent’s defence was that he was a mere broker who had been approached by the person calling himself Walter Ambajo to nd a purchaser at a commission, that his role in the transaction ended upon payment of that commission, and that the duty to conduct due diligence lay upon the 1st Respondent. The 3rd and 4th Respondents pleaded that the performance of their public duty was in good faith, was not negligent and was without malice. 11. The Appellant, by its statement of defence dated 20th July 2020, denied the claim in its entirety. It pleaded that it was a stranger to the conveyancing transaction; that if the said Walter Ambajo Adero held the account in question, that account had been opened on the basis of the Bank’s standard procedure upon the presentation of proper identication documents; that it owed no duty of disclosure to the 1st Respondent, who was not its customer; and that it had neither participated in nor had knowledge of the alleged fraud. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1742/eng@2026-09-24 2

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The evidence before the trial court 12. The 1st Respondent called two witnesses. The 3rd and 4th Respondents called none. The Appellant called one witness. The case against the 2nd Respondent did not proceed, for reasons to which I shall shortly return. 13. PW1, Major General (Rtd) Pastor Awiti Awudo, a director and the chairman of the 1st Respondent, adopted his witness statements and produced thirteen documents as Plainti’s Exhibits 1 to 13. He testied that the 2nd Respondent had introduced the company to the vendor and had accompanied its members to the site on each of their visits; that the company engaged advocates to conduct due diligence; that he personally attended upon the Land Registrar, who conrmed ownership; and that the purchase was concluded on that basis. He stated that after the perimeter fence was erected it was destroyed by a gang, that the matter was reported to the police, and that the documents used to open the account at the Appellant’s branch turned out to have been forged. He blamed the Bank, saying that it owed a duty to members of the public and ought to have known its customer. 14. In cross-examination PW1 conrmed that he did not personally meet the seller; that the account particulars of the vendor were supplied to the 1st Respondent by its own advocates, M/s Wasuna & Company Advocates, and not by the Appellant; that the 1st Respondent never at any time contacted the Appellant; that the cheques were issued to the advocates; that he was not an employee of the Bank; and that the Bank had said that it checked the details of its customer. He also conceded that the 1st Respondent held no copy of the occurrence book entry in respect of the vandalised fence. 15. PW2, No. 5xxx9 CPC Joseph Wambua, the investigating ocer, adopted his statement recorded on 5th June 2020. He testied that he obtained orders of the court to access the account and the accountopening documents; that the account had been opened using a passport in the name of Walter Ambajo Adero, which upon inquiry with the immigration authorities was found to belong to a lady from Nyandarua; and that the passport was accordingly a forgery incapable of being used to open an account. He blamed both the purported seller and the Bank, stating that the Bank had failed to verify the documents used to open the account and had a duty to conrm the true owner. He also blamed the Land Registrar for eecting the transfer without Land Control Board consent and for failing to exercise due diligence as custodian of the registry. 16. In cross-examination PW2 conrmed that the complaint made to the police by the 1st Respondent’s directors was against the man calling himself Walter Ambajo and not against the Bank; that he did not have a copy of the investigation report, the investigation diary or the occurrence book entry, the investigation le having been handed over on his transfer; that he never traced or met the impostor, who remained at large; that the real Walter Ambajo, whom he did meet and who was then a man of about ninety years, held no passport, was not called as a witness and was not made a party; and that he had not charged any bank ocial, the matter being, as he put it, a civil matter against the Bank. He nevertheless maintained that Kshs. 7 million and not Kshs. 3.8 million had been deposited into and withdrawn from the account. 17. DW1, Charles Muchemi Mugo, an ocer of the Appellant, adopted his statement and produced the Appellant’s documents as Defence Exhibit 1. He testied that for account opening a customer is required to produce an identity card or passport and to complete the prescribed form, which form he personally signed. In cross-examination he stated that he had been employed by the Bank in 2002 and had by then served ten years; that the client presented a passport which the Bank had to verify; that the passport had not expired; that a copy of it appeared at pages 13 and 14 of the Plainti’s list of documents; that verication at the branch was undertaken by one Isiah Opiyo; and that he had https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1742/eng@2026-09-24 3

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no proof of counter-checking. He stated that no eort was made to reach the owner of the passport; that the sum paid into the account was Kshs. 3.8 million; that the withdrawals were regular and by automated teller machine; and that once an account is opened the Bank does not concern itself with the customer’s deposits and withdrawals. On re-examination he explained that account opening involved several ocers at dierent desks and that his own role was conned to opening the account in the system. The judgment of the trial court 18. The learned trial magistrate rst addressed the claim against the 1st Defendant. Applying Derry v Peek (1889) 14 App. Cas. 337 and Nelson Kivuvani v Yuda Komora & Another, Nairobi HCCC No. 956 of 1991, he held that the transaction bore the elements of a valid contract but that the person presented to the Plainti as the vendor was not the lawful proprietor, that the 1st Defendant therefore had no good title to pass, and that the appropriate remedy was restitution. 19. Turning to the Appellant, the learned trial magistrate reasoned that it did not make sense how DW1 managed to open the account in the name of Walter Ambajo Adero yet “DW4” physically presented himself at the bank and managed to register an account in that name, and that the account was curiously allowed to transact colossal sums of money on the very day it was opened. He held that a reasonable banker would be expected to conduct due diligence upon a potential customer at account opening, and concluded that the Appellant had acted negligently, carelessly and recklessly, leading to the Plainti’s loss. 20. In support of that conclusion the trial court cited Shalimar Flowers Self Help Group v Kenya Commercial Bank, Civil Appeal No. 84 “A” of 2016 [2016] eKLR, Equity Bank (Kenya) Limited v Don Ogalloh Riaro & Another, Civil Appeal No. 133 of 2017 [2019] eKLR, Kenya Grange Vehicle Industries Ltd v Southern Credit Banking Corporation Ltd [2014] eKLR and Beyond Kenya Limited & Another v Gulf African Bank Kenya Limited [2019] eKLR. It found that the Appellant had failed to carry out customer due diligence, which failure amounted to negligence by omission, and that such negligence led to the 1st Defendant fraudulently opening an account in the name of Walter Ambajo Adero for the purpose of defrauding the Plainti. 21. As regards the 3rd Defendant, the trial court found that all the relevant completion documents had been presented to the Land Registrar to enable him eect the transfer, that there was nothing further he needed to do, and that his subsequent cancellation of the title upon realising that the transaction was fraudulent was without fault, malice or breach of statutory duty, there being no proof of bad faith. The court then made reference to section 82 of the Land Registration Act on the measure of indemnity. 22. On special damages the trial court cited Christine Mwigina Akonya v Samuel Kairu Chege [2017] eKLR and Gidraf Maina Chege v Joseph Njoroge Njenga [2017] eKLR for the proposition that special damages must be specically pleaded and strictly proved, and found that the Plainti had produced receipts proving special loss and damage amounting to Kshs. 394,200/=. 23. In the result the trial court held that the Plainti was entitled to the reliefs sought as against the 1st and 4th Defendants; entered judgment for the Plainti against those two defendants jointly and severally with costs; and dismissed the suit against the 2nd and 3rd Defendants in view of their public duty in the matter. The decree extracted on 24th February 2026 records those three orders. The Appeal 24. Aggrieved by that determination, the Appellant led the Memorandum of Appeal dated 19th September 2024 raising ten grounds. Shorn of repetition, the grounds are that the learned trial https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1742/eng@2026-09-24 4

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magistrate erred in law and in fact in: nding the Appellant negligent, careless and reckless upon a misapprehension of the evidence, and in particular upon a supposed conict between DW1 and a witness described as “DW4” who never testied; disregarding the Appellant’s unchallenged evidence as to its account-opening procedures; nding that the Appellant failed to conduct customer due diligence and that such failure led to the 2nd Respondent fraudulently opening the account; holding the Appellant jointly and severally liable with the 2nd Respondent notwithstanding the nding that the loss owed from the 2nd Respondent’s fraudulent misrepresentation; mischaracterising the Appellant’s case as being merely that it was a stranger to the transaction; nding a breach of a duty owed to the 1st Respondent when no such duty was proved; exonerating the County Land Registrar; assessing the sum payable by reference to section 82 of the Land Registration Act, a provision inapplicable in the circumstances; awarding special damages of Kshs. 394,200/= which were not strictly proved; and awarding Kshs. 7,394,950/= which was not proved. 25. The Appellant prays that the appeal be allowed, that the whole of the judgment and decree of the trial court be set aside, that in its place the 1st Respondent’s suit be dismissed with costs to the Appellant, and that the costs of this appeal be awarded to it. Submissions 26. The appeal was canvassed by way of written submissions. The Appellant led submissions dated 14th August 2026 through M/s Owiti, Otieno & Ragot Advocates. 27. Counsel submitted that the trial court imposed liability without rst determining whether the ingredients of negligence had been established; that negligence is never presumed and that the burden of proof under sections 107, 108 and 109 of the Evidence Act rested throughout upon the 1st Respondent; that neither PW1 nor PW2 had any rst-hand knowledge of the Appellant’s internal compliance procedures; that no expert or regulatory witness was called to establish the applicable standard of care or any departure from it; and that the Central Bank Prudential Guidelines require no more than that an institution take reasonable measures to satisfy itself as to the identity of an applicant by requiring production of an ocial identication record, which the Appellant did. 28. It was further submitted that the trial court failed altogether to establish causation; that the Appellant came into the picture at the tail end of a transaction which had by then been negotiated, executed, searched, consented to, stamped and registered; that the account was merely the conduit through which the money was transmitted and did not create the fraud; that no evidence of common design, participation, knowledge or assistance was tendered so as to render the Appellant a joint tortfeasor; and that the documentary evidence at pages 91 to 103 of the record established that only Kshs. 3,870,000/ = ever passed through the account, so that even on the trial court’s own ndings the award of Kshs. 7,394,950/= could not be attributed to the Appellant. 29. The 1st Respondent led submissions dated 8th September 2026 through M/s Omondi, Abande & Company Advocates. The 2nd, 3rd and 4th Respondents led none. 30. Counsel for the 1st Respondent raised, as a preliminary matter, an objection to the form of the appeal. It was submitted that Order 42 Rule 1(2) of the Civil Procedure Rules requires a memorandum of appeal to set forth concisely and under distinct heads the grounds of objection to the decree appealed against, without any argument or narrative; that grounds 3, 4, 5, 6, 7 and 8 of the Memorandum of Appeal are vague, argumentative and lacking in specicity; that they neither pinpoint the passage of the impugned judgment in which the alleged error occurred nor specify whether the error is one of law or of fact nor give substantial particulars of the alleged misdirection; and that such grounds ought to be struck out. Reliance was placed upon the Ugandan decision in National Insurance Corporation v https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1742/eng@2026-09-24 5

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Pelican Air Services, Civil Appeal No. 15 of 2003, and upon Abdi Ali Dere v Firoz Hussein Tundal & 2 Others [2013] eKLR, Nasri Ibrahim v IEBC & 2 Others [2018] eKLR and Robinson Kiplagat Tuwei v Felix Kipchoge Limo Langat [2020] eKLR. 31. On the merits, counsel reminded the court of its duty on a rst appeal, citing Francis Lokadongoy Lokogy v Reuben Kiplagat Kiptarus [2020] eKLR, Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 and Abdul Hameed Saif v Ali Mohamed Sholan (1955) 22 E.A.C.A. 270, and emphasised that it is a serious thing to overturn the ndings of a trial court which has had the singular opportunity of observing the demeanour of the witnesses. 32. As to negligence, it was submitted that the burden under sections 107 and 108 of the Evidence Act was fully discharged before the trial court. Counsel relied upon the evidence of PW2 that the account had been opened upon a passport which, on inquiry with the immigration authorities, was found to belong to a woman from Nyandarua with no connection to the transaction, evidence which was given without contradiction. He drew attention to the Central Bank of Kenya Prudential Guidelines, reproduced by the Appellant itself, which provide that an institution shall take reasonable measures to satisfy itself as to the true identity of any applicant, and submitted that the word “shall” imports a mandatory obligation and not a matter of choice. He founded principally upon the concessions of the Appellant’s own witness, DW1, who admitted that he had no proof of counter-checking, that no eort had been made to reach the owner of the passport, and that the Bank had a duty of care. Counsel further relied upon Kenya Grange Vehicle Industries Ltd v Southern Credit Banking Corporation Ltd [2014] eKLR, an authority contained in the Appellant’s own bundle, and upon the passage there approved from A & A Jewellers Limited v Royal Bank of Canada to the eect that a bank which fails to make the appropriate inquiries will be xed with constructive knowledge of the breach of trust. 33. As to causation, counsel adopted the very authorities relied upon by the Appellant. He submitted that upon the common sense standard approved in Elijah Ole Kool v George Ikonya Thuo and in Yorkshire Dale S.S. Co. Ltd v Minister of War Transport [1942] AC 691, a man in the street would conclude that the negligent facilitation of a fraudulent bank account was not a remote or incidental event in the chain but the very mechanism through which the fraud was consummated. Invoking Stapley v Gypsum Mines Ltd[1953] AC 663 (HL), he submitted that it suces that a party’s fault was so much mixed up with the state of things that in the ordinary plain common sense of the business it must be regarded as having contributed to the loss. Statpack Industries v James Mbithi Munyao [2005] eKLR was, he said, distinguishable, concerning as it did a workplace accident in which no act or omission of the employer was shown to have caused the injury at all. Had the Appellant exercised standard banking prudence, counsel submitted, the account would never have been opened, the funds would never have been deposited, and the fraud would have been frustrated at the point of payment. 34. As to joint and several liability, counsel adopted the denition of joint tortfeasors in Black’s Law Dictionary (10th ed., 2014) as two or more tortfeasors who contributed to the claimant’s injury, and submitted that where two or more persons by their independent breaches of duty to a plainti cause a single indivisible damage, they are concurrent tortfeasors jointly and severally liable for the whole of it. He relied upon Mugo v Directline Assurance Co. Ltd & Another [2024] KEHC 13662 (KLR), itself contained in the Appellant’s bundle, and upon the passages there adopted from Republic v Permanent Secretary in Charge of Internal Security ex parte Joshua Paul [2013] eKLR and Dubai Electronics v Total Kenya & 2 Others, Nairobi HCCC No. 870 of 1998, for the proposition that a plainti faced with joint liability may direct his claim against any one of the tortfeasors for the whole of the decretal sum, the tortfeasor so sued being left to his remedy in contribution or indemnity against his co-defendants. The Appellant’s recourse, it was submitted, lay in a claim against the 2nd Respondent and not in resisting the 1st Respondent’s claim. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1742/eng@2026-09-24 6

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35. As to quantum, counsel submitted that the special damages had been both pleaded and strictly proved by the agreement for sale, the Land Control Board consent, the instrument of transfer, the title deed issued on 18th April 2013, the advocates’ letter conrming disbursement and directing the balance of the purchase price to the impugned account, and the Appellant’s own statement of account, all of which were produced and form part of the record. The Appellant’s contention that it could not be held liable beyond the sum which passed through its account was said to misapprehend the nature of joint and several liability, since once liability is so apportioned the 1st Respondent is entitled to recover the whole from either tortfeasor without being conned to tracing the precise sum that passed through any one tortfeasor’s hands. 36. On costs, counsel invoked section 27(1) of the Civil Procedure Act and the observation of Ringera Ag. JA (as he then was) in Githiaka v Nduriri [2004] 2 KLR 67 that in the exercise of its discretion the court’s primary concern should be to do justice to the parties. He urged the court to nd the appeal devoid of merit, submitting in conclusion that the learned trial magistrate heard the witnesses, weighed their evidence and reached ndings on negligence, causation, joint liability and damages which were well grounded in the record and in several respects conrmed by the Appellant’s own witness and the Appellant’s own authorities. 37. I would wish to make one observation before I proceed. Submissions, however forcefully advanced on either side, are not evidence, and they neither add to nor subtract from the material properly on the record. The burden lies upon the Appellant to demonstrate that the trial court fell into error, and it remains the obligation of this court, sitting as a rst appellate court, to subject the whole of the evidence to a fresh and exhaustive scrutiny and to reach its own independent conclusions. I have approached the appeal in that manner, and I am grateful to both counsel for the industry evident in their respective submissions, which I have considered in their entirety even where I do not reproduce them. Issues for determination 38. Having considered the memorandum of appeal, the record of appeal and the submissions on record, I take the view that the following issues arise for determination: (i) Whether grounds 3, 4, 5, 6, 7 and 8 of the Memorandum of Appeal oend Order 42 Rule 1(2) of the Civil Procedure Rules and ought to be struck out; (ii) Whether the learned trial magistrate erred in law and in fact in nding the Appellant negligent; (iii) Whether the learned trial magistrate erred in imposing liability upon the Appellant without establishing causation; (iv) Whether the learned trial magistrate erred in holding the Appellant jointly and severally liable; (v) Whether the sums awarded against the Appellant were proved; (vi) What orders ought to issue, and who should bear the costs. Analysis and Determination 39. Before I turn to those issues I remind myself of the duty of a rst appellate court. In Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 the predecessor of the Court of Appeal stated the principle in these terms: “ An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briey put they are that this https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1742/eng@2026-09-24 7

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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.” 40. The same principle was restated in Peters v Sunday Post Limited [1958] EA 424 and, more recently, in Abok James Odera t/a A.J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR. I am alive to the fact that I did not have the advantage of seeing and hearing the witnesses, and I make due allowance for that. I am equally alive to the fact that where the trial court’s conclusion rests not upon the demeanour of witnesses but upon inference drawn from documents and undisputed primary facts, this court is in as good a position as the trial court to draw its own inferences. (i) Whether grounds 3, 4, 5, 6, 7 and 8 ought to be struck out 41. The rst matter raised by the 1st Respondent is a preliminary one, and I dispose of it before turning to the substance. Order 42 Rule 1(2) of the Civil Procedure Rules provides that a memorandum of appeal “shall set forth concisely and under distinct heads the grounds of objection to the decree or order appealed against, without any argument or narrative, and such grounds shall be numbered consecutively.” 42. The principle for which counsel contends is sound and the authorities he cites are emphatic. A memorandum of appeal is a pleading, and it binds the appellant to the case he has chosen to make. In Nasri Ibrahim v Independent Electoral and Boundaries Commission & 2 Others [2018] eKLR, quoted with approval in Robinson Kiplagat Tuwei v Felix Kipchoge Limo Langat [2020] eKLR, the Court of Appeal lamented that counsel must strive to make the drafting of grounds of appeal an art and not an exercise in verbosity, repetition or empty rhetoric, and observed that a surfeit of prolixious grounds serves only to obfuscate the real issues in dispute, to vex the opposite party, to waste judicial time and to increase costs. Those strictures deserve to be repeated, and I respectfully adopt them. 43. Applied to the present memorandum, the criticism is not without foundation. Several of the impugned grounds are narrative rather than concise, and one or two are little more than a restatement of the Appellant’s argument. Counsel who draft in that fashion should not be surprised to meet the objection which has been taken here. 44. I am nevertheless unable to accede to the invitation to strike out the grounds, for four reasons. The rst is procedural. The objection was raised for the rst time in written submissions led after the appeal had been fully argued on the merits, and not by any notice of preliminary objection or application to strike out. A party who wishes to have a pleading struck out must ordinarily say so at a stage at which the defect can be cured by amendment. 45. The second is that the vice against which the rule is directed is absent. The purpose of Order 42 Rule 1(2) is to give the respondent and the court reasonable and adequate notice of the complaint made against the decision appealed from, so that neither is thrown into confusion in attempting to decipher it. That purpose has plainly been served. The 1st Respondent was able to answer each of the grounds on the merits, and did so fully; indeed, it distilled from the memorandum ve substantive issues of its own which correspond closely to those which this court has independently framed. An objection that a ground is unintelligible sits uncomfortably beside a submission which proceeds to answer it comprehensively. 46. The third is that striking out the impugned grounds would not narrow this appeal. Grounds 1, 2, 9 and 10 are not impeached. Those grounds alone put in issue the nding of negligence, the suciency of the evidence supporting it, the award of special damages and the award of Kshs. 7,394,950/=. The court https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1742/eng@2026-09-24 8

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would in any event be required to traverse the whole of that ground, and, sitting on a rst appeal, to reevaluate the evidence for itself. Nothing would be gained by the exercise but the appearance of severity. 47. The fourth is that Article 159(2)(d) of the Constitution enjoins this court to administer justice without undue regard to procedural technicalities, and sections 1A and 1B of the Civil Procedure Act require it to give eect to the overriding objective of the just, expeditious, proportionate and aordable resolution of disputes. To dispose of a substantial appeal upon the drafting of six of its ten grounds, where the substance of the complaint is clear and has been fully met, would be to elevate form above substance. 48. I therefore decline to strike out grounds 3, 4, 5, 6, 7 and 8, and I shall consider the appeal upon all the grounds raised. The rst issue is answered in the negative. (ii) Whether the learned trial magistrate erred in nding the Appellant negligent 49. The ingredients of the tort of negligence are settled. A claimant must establish the existence of a duty of care owed to him by the defendant; a breach of that duty; and damage caused by and not too remote from that breach. Negligence is never presumed; it must be pleaded and proved. As was observed in Evans Nyakwana v Cleophas Bwana Ongaro [2015] eKLR, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the armative of the issue, and that burden does not shift merely because the opposing party has given no explanation that satises the court. 50. With the greatest respect to the learned trial magistrate, the impugned judgment discloses no consideration whatever of the rst and most fundamental of those ingredients. Nowhere in the judgment is the question posed, let alone answered, what duty of care the Appellant owed to the 1st Respondent, or from what relationship such a duty was said to spring. The judgment proceeds directly from the general proposition that “a reasonable banker would be expected to do his/her due diligence on a potential customer upon opening of an account” to the conclusion that “the 4th defendant acted negligently, carelessly and recklessly leading to the plainti’s loss”. Between those two propositions there lies a gap which the judgment does not bridge. 51. The gap matters because of who the parties are. The 1st Respondent was not the Appellant’s customer. There was no contract between them, and no banker-customer relationship of any description. Nor was the 1st Respondent the true owner of a cheque converted by the Bank: the cheques were drawn in favour of the vendor and his advocates, and the money reached precisely the account into which the 1st Respondent, acting on the advice of its own advocates, intended it to be paid. The 1st Respondent and the Appellant were, until the fraud came to light, complete strangers to one another. 52. Where the parties are strangers, a duty of care in tort arises only where the damage is foreseeable, where there exists between them a relationship of sucient proximity, and where it is fair, just and reasonable to impose the duty. Alternatively, and in cases of pure economic loss such as this, a duty may arise where the defendant has assumed responsibility to the claimant and the claimant has relied on that assumption of responsibility. Neither route was open on this record. 53. The evidence of PW1 is decisive on this point, and it was his own evidence. He testied in crossexamination that the account particulars were given to the 1st Respondent by M/s Wasuna & Company Advocates and not by the Bank directly; that the 1st Respondent never contacted the Bank; and that the cheques were issued to the advocates. Plainti’s Exhibit 5, the advocates’ letter, bears him out: it was the advocates who conrmed that the title was genuine, who advised that the transaction could be concluded, and who furnished the account particulars for the remittance of the balance. The Appellant made no representation of any kind to the 1st Respondent, gave it no assurance, and https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1742/eng@2026-09-24 9

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had no dealings with it before the money was paid. There was accordingly neither an assumption of responsibility nor any relationship of proximity capable of founding a duty of care. 54. The 1st Respondent’s complaint, when reduced to its essentials, is that the Appellant breached its obligations of customer due diligence under the Central Bank of Kenya Prudential Guidelines. That may be so or it may not be; but a breach of a regulatory obligation does not of itself create a private right of action in the hands of every person who may ultimately be aected by it. The Prudential Guidelines are issued for the prudential supervision of institutions and for the prevention of money laundering, and they are enforced by the Central Bank. A claimant who invokes them in a civil suit must still establish the ingredients of the tort at common law. The trial court treated the guidelines as though breach of them was, without more, a tort actionable at the suit of the 1st Respondent. That was, in my respectful view, a misdirection. 55. Counsel for the 1st Respondent laid emphasis upon the mandatory language of the guideline, and upon the proposition that “shall” denotes obligation and not option. I accept that it does. But the mandatory character of a regulatory obligation goes to the question whether the obligation exists and must be performed; it says nothing about the person to whom it is owed or about the remedy for its breach. Many statutory and regulatory duties are couched in mandatory terms without thereby conferring a private right of action upon every member of the public who may be aected by their nonperformance. Whether a breach is actionable at the suit of a particular claimant depends upon whether the instrument, on its true construction, was intended to confer such a right, and, where the claim is framed at common law, upon whether the ingredients of the tort are made out. Neither question was addressed below, and neither is answered by the word “shall”. 56. Nor does the concession extracted from DW1 that “the bank has duty of care” supply the deciency. Whether a duty of care exists, and to whom it is owed, is a question of law for the court and not a matter to be established by the opinion of a witness, however candidly volunteered. A bank ocer’s acknowledgment in the witness box that his employer owes a duty of care is, at its highest, an acknowledgment of the duty the Bank owes to its own customers and to the regulator. It cannot create, as between the Bank and a stranger, a relationship of proximity which on the evidence did not exist. 57. The authorities upon which the trial court relied do not bear the weight placed upon them. Kenya Grange Vehicle Industries Ltd v Southern Credit Banking Corporation Ltd (supra) and Shalimar Flowers Self Help Group v Kenya Commercial Bank (supra) are concerned with the duty of a collecting banker to the true owner of a cheque which the banker collects for a customer not entitled to it the classic conversion case. Equity Bank (Kenya) Limited v Don Ogalloh Riaro & Another (supra) and Beyond Kenya Limited & Another v Gulf African Bank Kenya Limited (supra) concern the duty a bank owes in relation to the operation of an account and the monitoring of suspicious transactions. Neither situation is the present one. Here the 1st Respondent was not the true owner of a converted instrument; it was a willing payer who directed its money, through its own advocates, into the account of the very person it believed to be its vendor. 58. Counsel for the 1st Respondent placed particular reliance, as did the trial court, upon the passage in Kenya Grange Vehicle Industries Ltd (supra) adopting A & A Jewellers Limited v Royal Bank of Canada, that where a bank is under a duty to make inquiries of its customer regarding a possible breach of trust, it will be xed with constructive knowledge of that breach if it fails to make the appropriate inquiries. The passage is accurately quoted, but it does not carry the 1st Respondent as far as is contended. Its opening words are conditional: where the Bank is under a duty to make inquiries. The doctrine of constructive knowledge there described operates upon a duty already established; it does not create one. In Kenya Grange case the duty arose because the bank had collected, for a customer not entitled to them, cheques belonging to the claimant, who was their true owner. Here the 1st https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1742/eng@2026-09-24 10

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Respondent was the true owner of no instrument which the Appellant collected, and stood in no relationship with the Appellant at all. 59. Even were I to assume, in the 1st Respondent’s favour, that a duty of care existed, the question of breach would have to be measured against the standard of the reasonable banker in the circumstances then obtaining, not against a standard of perfection. That test was stated in Kenya Grange Vehicle Industries Ltd (supra), where it was held that the banker is not required to engage in an impractically extensive inquiry, nor is he to be held to a standard of perfection; all that is required is that he act reasonably in the circumstances. 60. I do not wish to be understood as saying that the Appellant’s evidence was beyond criticism. It was not. DW1 conceded in cross-examination that he had no proof of counter-checking, and that no eort was made to reach the owner of the passport. Had this appeal turned upon breach alone, the 1st Respondent’s case would have had considerably more force than the Appellant allows. But the standard is a comparative and contextual one, and context here is everything. The forged passport was current on its face, it bore the photograph of the person who presented it, that person attended in person at the branch, and the account-opening forms were duly completed. The very same photograph and the very same signature appear on the instrument of transfer which the 1st Respondent’s advocates prepared, which the Land Control Board considered, and which the Lands Registry accepted, registered and acted upon by issuing a title deed. The deception was thorough, and it deceived every professional and public oce through which it passed. A standard of care which the Bank alone is taken to have breached, while the advocates who conducted the due diligence, the Land Control Board which gave consent and the Land Registrar who registered the transfer are all exonerated, is not a standard of reasonableness at all. It is a counsel of perfection, and one applied selectively. 61. I have not overlooked the submission, pressed with some force, that the learned trial magistrate enjoyed the singular advantage of seeing and hearing DW1, PW1 and PW2, and that this court should be slow to disturb ndings reached with that advantage. The principle is undoubted, and I have already set it out. But it has its limits. The caution enjoined by Selle (supra) and by Abdul Hameed Saif v Ali Mohamed Sholan (supra) attaches to ndings which turn upon the credibility and demeanour of witnesses. It has considerably less force where, as here, the trial court’s conclusion rests upon inference drawn from documents and undisputed primary facts, in which case this court is in as good a position to draw its own inferences. It has no application at all where the nding rests upon a misapprehension of the record, and that, as I now show, is what occurred. Indeed the very authority upon which counsel relies, Francis Lokadongoy Lokogy v Reuben Kiplagat Kiptarus (supra), concludes with the reminder that where the ndings of a trial court are not supported by the evidence on record or are founded upon a misapprehension of the law, the axe must fall upon the impugned judgment. 62. Two further matters compel me to conclude that the nding of negligence cannot stand. The rst is that the central factual premise of the trial court’s reasoning is not borne out by the record. The learned magistrate reasoned from a supposed conict between the evidence of DW1 and the conduct of a person he described as “DW4” who “physically presented himself to the bank”. There was no DW4. The only defence witness who testied in the entire trial was DW1. The 2nd and 3rd Defendants closed their case without calling any witness, and the 4th Defendant called one witness only. A nding of negligence resting upon a conict between a witness who testied and a witness who does not exist cannot be sustained. 63. The second is that the nding that the Appellant’s negligence “led to the 1st Defendant fraudulently opening an account in the name of Walter Ambajo Adero” is wholly unsupported. There was no evidence at all that the 1st Defendant, that is to say the 2nd Respondent herein, opened the account https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1742/eng@2026-09-24 11

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or ever set foot in the branch. PW2 testied expressly that he never traced or met the impostor, who remained at large. The trial court thus attributed to a named party an act which the investigating ocer himself could not attribute to anybody. 64. I would add that the trial court’s reliance on the fact that the account was permitted to “transact colossal sums of money the same day it was opened” overlooks the terms of the very guidelines invoked against the Appellant. Those guidelines recognise that in order to judge whether a transaction is or is not suspicious, an institution needs a clear understanding of the pattern of its customer’s business as the relationship develops, and that suspicious transactions frequently arise within an established relationship rather than at the outset. On a newly opened account there was, by denition, no pattern against which the rst deposit could be measured. 65. For all those reasons I nd that the learned trial magistrate erred in nding the Appellant negligent. The second issue is answered in the armative. (iii) Whether the learned trial magistrate erred in imposing liability without establishing causation 66. That nding is sucient to dispose of the appeal, but as the point was fully argued and as this is a rst appeal, I proceed to consider causation. Proof of negligence alone does not suce. The claimant must go further and demonstrate that the breach was the eective and proximate cause of the loss. In Statpack Industries v James Mbithi Munyao [2005] eKLR the court put it thus: “ Coming now to the more important issue of causation, it is trite law that the burden of proof of any fact or allegation is on the Plainti. He must prove a causal link between someone’s negligence and his injury. The Plainti must adduce evidence from which, on a balance of probability, a connection between the two may be drawn. Not every injury is necessarily a result of someone’s negligence. An injury per se is not sucient to hold someone liable for the same.” 67. Causation is a question of fact to be resolved by the application of common sense standards. In Elijah Ole Kool v George Ikonya Thuo [2001] eKLR the court adopted the words of Lord Wright in Yorkshire Dale Steamship Co. Ltd v Minister of War Transport [1942] AC 691 that the choice of the real or ecient cause out of the whole complex of the facts must be made by applying common sense standards, and that causation is to be understood as the man in the street, and not as the scientist or the metaphysician, would understand it. 68. Applying that test to the chronology on the record, the position is this. The agreement for sale was executed on 8th November 2012. The 1st Respondent’s advocates conducted due diligence. An ocial search was obtained. The Land Control Board gave its consent. Stamp duty and registration fees were paid. A title deed issued on 18th April 2013. Money had already begun to change hands well before the Appellant’s account particulars entered the picture at all: Plainti’s Exhibit 5 records that Kshs. 3,000,000/= had by then been deposited with the advocates, that Kshs. 1,800,000/= had already been released to the person calling himself Mr. Ambajo, and that it was only the balance which was to be remitted to the account at the Appellant’s branch. 69. The 1st Respondent parted with its money because it was satised upon the advice of its advocates, upon the strength of an ocial search, upon the personal assurance of the District Land Registrar, and upon its own directors’ repeated dealings with the impostor and their visits to the land that it was buying a good title from the registered proprietor. Nothing that the Appellant did, and nothing that it failed to do, contributed in any degree to that state of satisfaction. The account was the conduit https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1742/eng@2026-09-24 12

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through which money was transmitted after the decision to pay had already been taken. It did not create the fraud, and it did not induce the payment. 70. Nor is the position saved by asking whether the loss would have been avoided had the Appellant adopted a dierent account-opening procedure. The answer, on this record, is that it would not. A man who had already succeeded in obtaining a forged title, in satisfying advocates conducting a conveyancing due diligence, in obtaining the consent of a Land Control Board and in procuring registration of a transfer at the Lands Registry would hardly have been defeated by the refusal of one bank to open one account. Part of the price was in fact taken through the advocates without any bank account at all. 71. Counsel for the 1st Respondent sought to meet that diculty by invoking Stapley v Gypsum Mines Ltd [1953] AC 663 (HL), and the test there formulated of whether a party’s fault was so much mixed up with the state of things that in the ordinary plain common sense of the business it must be regarded as having contributed to the loss. That authority does not assist him.The formulation relied upon presupposes a breach of duty owed to the claimant; it is directed to the division of responsibility once liability is established, not to the creation of a causal link where the anterior elements are wanting. It cannot be pressed into service to convert a stranger into a tortfeasor. 72. Counsel was right to say that Statpack Industries (supra) arose from a workplace accident. But the proposition for which it was cited, and for which I have cited it, is a general one which is not conned to its facts: that the claimant must adduce evidence from which, on a balance of probabilities, a connection between the negligence alleged and the loss suered may be drawn, and that loss alone is not sucient to hold another liable for it. That proposition is as true of a nancial loss as of a physical injury. 73. There is, nally, the submission that had the Appellant exercised standard banking prudence the account would never have been opened, the funds would never have been deposited, and the fraud would have been frustrated at the point of payment. That submission has an attractive simplicity, but it does not survive contact with the chronology. By the time the Appellant’s account particulars entered the transaction the sale had been negotiated and executed, the search obtained, the consent of the Land Control Board procured, the transfer registered, a title deed issued and the greater part of the deposit already disbursed. The fraud was not frustrated at the point of payment because it had long since succeeded at the points which mattered. 74. Applying the common sense standard, the ecient cause of the 1st Respondent’s loss was the elaborate impersonation and forgery perpetrated by the man calling himself Walter Ambajo Adero, set in motion by the introduction eected by the 2nd Respondent and rendered eective by the acceptance of the forged instruments at every stage of the conveyancing chain. That chain of causation is not answered by the circumstance that the last resting place of the money happened to be an account at the Appellant’s branch. 75. The trial court made no nding on causation whatsoever. It moved directly from a nding that customer due diligence had not been carried out to the conclusion that the Appellant was liable for the whole of the Plainti’s loss. That was a misdirection, and it is fatal to the judgment. The third issue is likewise answered in the armative. (iv) Whether the learned trial magistrate erred in holding the Appellant jointly and severally liable 76. The trial court found in terms that the fraud was perpetrated by the person presented to the 1st Respondent as the lawful proprietor. Having so found, it proceeded to hold the Appellant jointly and severally liable with the 1st Defendant. The test for joint tortfeasorship was set out in Mugo v Directline https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1742/eng@2026-09-24 13

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Assurance Co. Ltd & Another [2024] KEHC 13662 (KLR), where the court adopted the statement in Charlesworth and Percy on Negligence that wrongdoers are joint tortfeasors where the cause of action against each is the same, that there must be concurrence in the act or acts causing damage and not merely a coincidence of separate acts which by their conjoined eect cause damage. 77. There was no evidence whatever of concurrence, common design, knowledge, participation or assistance on the part of the Appellant. The Appellant did not introduce the parties, did not negotiate the sale, did not prepare or execute the agreement, did not authenticate any conveyancing document, did not verify the ownership of the suit property and did not procure the registration of the transfer. Its involvement began and ended with the opening and maintenance of a customer account in the ordinary course of banking business. On any view of the evidence it was not a joint tortfeasor with the fraudster; if anything, it was itself among those deceived. 78. The answer advanced by the 1st Respondent is that the Appellant and the 2nd Respondent were, if not joint tortfeasors, then concurrent tortfeasors whose independent breaches of duty combined to produce a single indivisible loss, and that the 1st Respondent is accordingly entitled to recover the whole of the decretal sum from either of them, leaving the Appellant to its remedy in contribution. For that proposition counsel cited Black’s Law Dictionary and the passages adopted in Mugo v Directline Assurance Co. Ltd (supra). 79. The statements of principle are accurate, and I would respectfully adopt them. They are, however, statements about the consequences of concurrent liability and not about its existence. They tell the court what follows once it has been found that each of two defendants is in breach of a duty owed to the plainti: that the plainti may elect against whom to levy execution, that he may not recover more than the total decreed, and that a defendant who satises the decree may seek contribution from his fellow. Every one of those propositions takes as its premise the very nding which is missing here. The doctrine of concurrent tortfeasorship cannot be worked backwards so as to supply, from the undoubted wrongdoing of the impostor, a breach of duty on the part of the Appellant which the evidence does not establish. A defendant is not made liable by the company he is found in. 80. There is a further diculty, and it is one which this court cannot pass over in silence. The certied proceedings show that on 7th June 2023, immediately before the hearing commenced, counsel appearing for the 1st Defendant informed the trial court that the 1st Defendant was deceased and that the suit against him had abated. Nothing on the record suggests that any application for substitution was made, that any legal representative was joined, or that the suit was at any time revived. Yet judgment came to be entered against the 1st Defendant on 20th August 2024, and he was thereafter named as the 2nd Respondent in this appeal. A judgment entered against a deceased party in a suit which has abated is a nullity. It follows that even on the trial court’s own approach there was no co-tortfeasor in law against whom the Appellant could properly have been held jointly and severally liable. 81. I record also that the impugned judgment is not internally consistent. Having exonerated the Land Registrar in the operative part of the judgment and in the decree, the judgment nonetheless states at one point that a nding that the Land Registrar was not negligent “cannot be arrived at in the circumstances”. And the invocation of section 82 of the Land Registration Act, which governs the measure of indemnity payable in respect of the loss of an interest in land, has no bearing upon a claim in negligence against a commercial bank. These are not mere infelicities of expression; they reect a want of the analytical clarity which a judgment must possess if it is to be capable of supporting the orders made upon it. The fourth issue is answered in the armative. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1742/eng@2026-09-24 14

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(v) Whether the sums awarded against the Appellant were proved 82. Given my ndings on liability, the question of quantum is strictly academic. I nevertheless address it briey, both because it was argued and because a rst appellate court ought, where it can, to make ndings on all the issues before it. 83. As to the sum of Kshs. 7,394,950/=, the Appellant’s statement of account appearing at pages 91 to 103 of the record of appeal shows that the total sum which ever passed through account number 0110xxxxxxx500 was Kshs. 3,870,000/=. DW1 conrmed as much in cross-examination. PW2 asserted to the contrary that Kshs. 7 million had passed through the account, but he produced neither the investigation le nor the investigation diary nor any occurrence book entry, and his assertion is contradicted by the bank statement itself. Where oral testimony is in conict with contemporaneous documents, it is the documents which must ordinarily prevail. Even therefore on the trial court’s own ndings, an award of the entire Kshs. 7,394,950/= against the Appellant could not be sustained. There was, moreover, no evidence connecting the Appellant with the registration expenses forming part of that gure. 84. The 1st Respondent’s answer to that arithmetic is that once liability is joint and several the question of tracing does not arise, and that it may recover the whole from either tortfeasor without being conned to the sum which passed through any one tortfeasor’s hands. As a statement of the law upon an established joint liability that is unimpeachable. It is unavailing here for the reason already given: the premise fails. Where liability is founded not upon a common design but upon a defendant’s own negligence, that defendant answers for the loss which his negligence caused and for no more, and the outer limit of any loss attributable to the operation of this account is the sum which passed through it. 85. As to the special damages of Kshs. 394,200/=, the trial court cited the correct principle, namely that such damages must be specically pleaded and strictly proved, but I am unable, on my own perusal of the record, to nd the material upon which its nding that receipts had been produced could rest. As regards the Kshs. 314,200/= claimed for the vandalised barbed wire fence, PW1 conceded in crossexamination that the 1st Respondent had no copy of the occurrence book entry, and the bundle of documents on record does not disclose receipts or vouchers for the fencing works. As regards the Kshs. 80,000/= claimed as the cost of engaging an advocate, Plainti’s Exhibit 5 discloses that this sum was the fee which M/s Wasuna & Company Advocates agreed with the vendor for acting for him as vendor, and which they deducted from monies otherwise payable to him. On the face of that document it was not an expense borne by the 1st Respondent at all. In either case the strict proof which the authorities demand was absent, and in neither case was any nexus established between the expense and the Appellant. 86. Counsel for the 1st Respondent met this by pointing to the agreement for sale, the Land Control Board consent, the instrument of transfer, the title deed of 18th April 2013, the advocates’ letter and the Appellant’s statement of account, and submitting that taken together these establish both the loss occasioned by the fraudulent transaction and the special damages owing from it. Those documents do indeed establish the transaction and the payment of the purchase price, and I have relied upon them for that purpose throughout this judgment. But not one of them is a receipt or voucher for the barbed wire fencing works, and the advocates’ letter, far from vouching the Kshs. 80,000/= as an expense of the 1st Respondent, discloses it as the vendor’s own advocates’ fee deducted from the vendor’s money. Strict proof is not established by the production of documents which prove something else. The fth issue is answered in the armative. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1742/eng@2026-09-24 15

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(vi) What orders ought to issue, and who should bear the costs 87. It follows from the foregoing that this appeal must succeed. The nding of negligence against the Appellant was reached without any determination of the duty of care, upon a misapprehension of the evidence and of the identity of the witnesses, without any analysis of causation, and upon authorities which did not govern the situation before the court. The consequential ndings of joint and several liability and of quantum cannot survive the collapse of the nding of liability upon which they rest. 88. I am conscious that this outcome leaves the 1st Respondent, which has plainly been the victim of a grave and calculated fraud, without a remedy against the only solvent party before the court. That is a hard result, and I do not pretend otherwise. But the function of a court is to apply the law to the evidence, and sympathy for a deserving litigant cannot supply the ingredients of a cause of action which the evidence does not establish. A bank cannot be made the insurer of every transaction whose proceeds happen to pass through an account in its books. 89. On costs, section 27(1) of the Civil Procedure Act vests the court with discretion, and the settled rule is that costs follow the event unless there is good reason to order otherwise. The Appellant has succeeded both here and, on the orders I propose to make, before the trial court. I see no reason to depart from the ordinary rule as between the Appellant and the 1st Respondent, which prosecuted the claim against it. The 2nd, 3rd and 4th Respondents took no part in this appeal and no order for costs will be made against them. 90. Counsel for the 1st Respondent reminded me, citing Githiaka v Nduriri [2004] 2 KLR 67, that in the exercise of that discretion the court’s primary concern should be to do justice to the parties. I accept the reminder and have weighed it anxiously, the more so because the 1st Respondent is the innocent victim of a calculated fraud and because the Appellant’s own account-opening practice, as I have said, was not beyond criticism. But justice between these parties must take account of the fact that the Appellant was brought into a suit in which, on the evidence, it had no part, that it was required to defend itself at a trial and again on this appeal, and that it has succeeded on every issue it has raised. To deny it its costs would be to visit upon it a further consequence of a fraud of which it was not the author. I therefore make no departure from the ordinary rule. 91. For the avoidance of doubt, nothing in this judgment disturbs the dismissal by the trial court of the suit against the 2nd and 3rd Defendants, being the 3rd and 4th Respondents herein, which dismissal was not the subject of any cross-appeal. Final orders 92. In the end and for the reasons set out above, I make the following orders: i. The appeal be and is hereby allowed. ii. The judgment and decree of the Hon. K. Cheruiyot, Senior Principal Magistrate, delivered on 20th August 2024 in Kisumu CM ELC Case No. 303 of 2018 be and is hereby set aside in so far as the same relates to the Appellant, who was the 4th Defendant before the trial court. iii. In substitution therefor, an order be and is hereby made dismissing the 1st Respondent’s suit against the Appellant. iv. The dismissal of the suit against the 2nd and 3rd Defendants before the trial court, being the 3rd and 4th Respondents herein, is not disturbed. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1742/eng@2026-09-24 16

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v. The 1st Respondent shall bear the Appellant’s costs of this appeal and of the suit before the trial court. DATED, SIGNED AND DELIVERED AT KISUMU THIS 24TH DAY OF SEPTEMBER 2026 E. K. WABWOTO JUDGE https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1742/eng@2026-09-24 17

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