[2023] KEHC 25544 (KLR)

AOR v Emu-Inya Enterprises t/a Get Bucks Kenya (Civil Appeal E30 of 2022) [2023] KEHC 25544 (KLR) (21 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25544 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Civil Appeal E30 of 2022

KW Kiarie, J

November 21, 2023

Between

AOR

Appellant

and

Emu-Inya Enterprises t/a Get Bucks Kenya

Respondent

(Being an Appeal from the judgment and decree in Homa Bay Chief Magistrate’s CMCC No E031 of 2020 by Hon JS Wesonga –Principal Magistrate)

Judgment

1. AOR, the appellant herein, was the plaintiff in Homa Bay Chief Magistrate’s CMCC No E031 of 2020. He had sued for damages for a complaint of defamation and unconditional apology. He contended that he was erroneously listed in the Credit Reference Bureau at the instance of the respondent. The learned trial magistrate dismissed his claim on the 28th day of April 2022.

2. The appellant was aggrieved by the said judgment and filed this appeal. He was represented by the firm of GS Okoth & Company Advocates. He raised four grounds of appeal as follows:a.The learned trial magistrate misdirected herself on several matters of law and fact.b.The learned trial magistrate erred in law of evidence in that, having found that the defendant failed to prove that it had loaned any money to the appellant and having admitted that it forwarded the name of the appellant to the Credit Reference Bureau Africa Limited t/a Transunion, a wrong in law was committed and the plaintiff had essentially proved his case and failure to prove that he suffered damages does not mean that he failed to prove his case, but only calls for the award of nominal damages.c.The learned trial magistrate erred in law of procedure and practice in ordering the plaintiff to pay costs to the defendant when the plaintiff has proved that the defendant never loaned him any money and was thus liable to him for the wrong of causing his name to be published in the CRB.d.The learned trial magistrate failed to appreciate that rules 37(5) and 37(13) would only be applicable where the credit information provider had lent any money to the alleged loan defaulter but where advanced at all the credit information is prima facie false, unlawful, wrongful and actionable.

3. The appeal was opposed by the respondent through the firm of M/S Naikuni, Ngaah, Miencha & Ochwal Advocates. The respondent contended that the appeal lacks merit.

4. As the first Appellate Court, it is my responsibility to carefully review all of the evidence presented and take into consideration that I did not have the opportunity to observe the witnesses testify and their demeanor. I will follow the principles outlined in the case of Selle vs Associated Motor Boat Co Ltd [1965] EA 123, which states that the first appellate court must examine and assess the evidence that was presented in the trial court, and then come to its conclusions on the matter.

5. The appellant contended that the respondent caused him to be erroneously listed with the Credit Reference Bureau as a loan defaulter. This listing denied him a chance to be advanced a loan by the Co-operative Bank of Kenya. In dismissing his claim, the learned trial magistrate made a finding that he did not demonstrate that he applied for a loan and was declined due to the impugned listing with the Credit Reference Bureau.

6. In the trial court, the respondent contended that they had advanced some money to the appellant through his mobile phone but he failed to repay the loan and that was the reason for his listing with the Credit Reference Bureau.

7. Among the many obligations a credit information provider has to a consumer, is advance notice of the intention to submit the negative information to a Bureau. This is meant to safeguard erroneous listing and consequently injure the credit standing of such a customer. regulation 25 (1) provides:A credit information provider furnishing negative information to a Bureau regarding credit extended to a customer or arising from a product or service rendered to a customer shall, in writing or through electronic means, issue to the customer a notice of intention to submit the negative information within thirty days before submitting of the negative information to a Bureau or within such shorter period as the contract between the credit information provider and the customer may provide.

8. The appellant claimed that he was not given notice of the listing and only learned of it when he applied for a loan from the Co-operative Bank of Kenya. The respondent did not testify on whether this was complied with or not. It can only be assumed it was not since there was no document produced to support compliance.

9. At the core of this claim is a claim of a non-existent loan advanced to the appellant. The respondent contended that the loan was advanced and there was a copy of a loan agreement dated the July 27, 2015 which was produced. This copy cannot be of much help to the court. The area provided for the indication of the approved loan both in words and numerals was left blank. Since this is not a claim for the impugned advanced loan, I will not delve any deeper into this issue. However, I will point out that though the respondent claims the loan was advanced through the appellant’s mobile phone, there was no documentary evidence to support the claim.

10. The elements of the tort of defamation were restated in the case of J Kudwoli vs Eureka Education and Teaching Consultants & 2 others HCC No 126 of 1990 as follows:a.The matter to which the plaintiff complains was published by the defendant;b.The publication concerned or referred to the plaintiff;c.That it is defamatory in character;d.That it was published maliciously and;e.That in slander, subject to certain exceptions, the plaintiff has thereby suffered special damage.When a party is erroneously listed with a Credit Reference Bureau, he/she cannot access any loan facilities with any financial institution. The listing taints his/her creditworthiness. All and sundry are being informed that he/she is not fit to deal with. This is why a credit information provider has a duty under regulation 25(8), which provides that:A credit information provider who has furnished credit information to a Bureau shall, within thirty days from the date the information was furnished to a Bureau, notify the customer that his credit information has been forwarded to the Bureau.

11. The credit information provider who furnishes credit information to a bureau must inform the individual in question or be in breach of regulations. This is to allow the affected person to take corrective measures if need be. When there is a genuine mistake and credit information is given without a loan having been advanced, such notification could have received the requisite input of the affected person. My considered opinion is that the action by the respondent was not only reckless and a breach of the regulations, but was defamatory. I therefore set aside the finding by the trial magistrate and substitute it with a finding that the respondent is liable for defamation to the appellant.

12. I award the appellant Kshs. 150,000/= damages and costs in the trial court as well as in this appeal.

DELIVERED AND SIGNED AT HOMA BAY THIS 21STDAY OF NOVEMBER 2023KIARIE WAWERU KIARIEJUDGE