[1999] KECA 9 (KLR)
The Court held that since the cheques in question were forged and the appellant bank had no authority or mandate from the respondent to pay or debit the amounts, the bank was liable for the loss. The appellant's defence was found to be a sham, and the High Court was correct in granting summary judgment for the...
Source-derived case information.
- Citation
- [1999] KECA 9 (KLR)
- Parties
- Appellant: Bullion Bank Limited; Respondent: Fulchandmanek & Brothers
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 42 of 1998
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- RO Kwach
- Legal Topics
- Forged Cheques, Bank Customer Relationship, Summary Judgment, Mandate and Authority
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bullion Bank Limited
Appellant
Fulchandmanek & Brothers
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the appellant bank was entitled to debit the respondent's account based on forged cheques.
- 2 Whether summary judgment was properly entered against the appellant under Order XXXV of the Civil Procedure Rules.
Ratio Decidendi
The Court held that since the cheques in question were forged and the appellant bank had no authority or mandate from the respondent to pay or debit the amounts, the bank was liable for the loss. The appellant's defence was found to be a sham, and the High Court was correct in granting summary judgment for the respondent. The appeal was therefore dismissed with costs.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL OF KENYA
AT NAIROBI
Civil Appeal 42 of 1998
BULLION BANK LIMITED ............................................................APPELLANT
AND
FULCHANDMANEK & BROTHERS ............................................ RESPONDENT
(Appeal from the Ruling and Order of the High Court of Kenya at Nairobi (Hon. Mr. Justice Ringera) dated the 1st day of July, 1996
in
H.C.C.C. NO. 101 OF 1996)
***************
JUDGMENT OF THE COURT
This is an appeal by the unsuccessful defendant from the ruling and Order of the superior court (Ringera, J., as he then was) given on 1 July, 1996 whereby he allowed the plaintiff's application for summary judgment under the provision of Order XXXV rules 2 and 3 of the Civil Procedure Rules and entered judgment for the plaintiff as prayed in the sum of K.Shs.789,649/= plus costs and interest.
At all material times the respondent firm was the customer of the appellant Bank and maintained a banking account at Nairobi Main Branch of the Bank. On 8 and 13 June 1995 the appellant debited the respondent's account with the Bank against cheque Nos. 000085864 and 000085853 respectively and dated 8 and 13 June 1998 the respective sums of K.Shs.435,150/= and 350,150/= the said cheques being unknown to the respondent. The appellant also debited the respondent a sum of Shs.800/= for cheque books and Shs.3,549/= interest, thus adding up the respondent's loss to Kshs.789,649/=.
There was no denial by the appellant that the cheques on which the respondent's amount was debited did not belong to the respondent and the learned judge held that the defence filed was a hollow sham in the nature of a red herring. Mr. Ngunjiri for the appellant frankly conceded that there was a forgery.
With respect, we are in full agreement with the learned judge. In the circumstances of this case and as the cheques in question were forged we are satisfied that the appellant had no authority or mandate from the respondent to pay the amount of the said cheques or debit the amount of the said cheques and other charges to the account of the respondent.
The learned judge was plainly right in the conclusion he reached. For this reason the appeal fails. It is accordingly dismissed with costs.
Dated and delivered at Nairobi this 18th day of February, 1999.
R.O. KWACH
...................
JUDGE OF APPEAL
P.K. TUNOI
...................
JUDGE OF APPEAL
A.A. LAKHA
....................
JUDGE OF APPEAL
I certify that this is
a true copy of the original.
DEPUTY REGISTRAR