https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11992

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MERU** **CIVIL APPEALS DIVISION** **CIVIL APPEAL NUMBER E394 OF 2024** **EMARENZANIA WANGARI KIROMO…….…………. APPLELLANT** **VERSUS** **FAMILY BANK K LIMITED.………………………….… RESPONDENT** ***(Being an appeal from the ruling of Hon. L.M Njoroge (CM) 18th December, 2023 the Magistrates Court at Meru Civil Suit No. E285 of 2022*** **JUDGMENT** 1. This appeal arises out of the decision of Hon **Hon. L.M Njoroge (CM) 18th December, 2023 the Magistrates Court at Meru Civil Suit No. E285 of 2022;** where the Appellant sued the Respondent for an order directing the Defendant to discharge the charge registered in respect to title number Nakuru/Municipality Block 7/11, A declaration that the 2nd is null and void, an order of general damages, costs of and interest at court rates. 2. In her Plaint, the plaintiff averred that she is the registered owner of Land parcel number Nakuru/municipality Block 7/11 measuring 0.027Ha and the wife to one Cyrus Kiromo M’bure (now deceased). She said that around the year 2012, the deceased took a loan facility of Kshs. 200,000/- from the Respondent and with her consent used Land parcel number Nakuru/Municipality Block 7/11 as security. She said that the deceased repaid the loan in full but the title. She said that upon the deceased’s demise in 2021, she followed up with the Respondent for release of the title but that the Respondent declined to release the same claiming that the deceased had used the title before his demise as security for a subsequent loan. 3. She averred that she never consented to the 2nd Charge and neither did she sign any guarantee in respect to the subsequent loan hence the same was illegally and maliciously held by the Respondent. The Appellant particularised the Respondent’s malice at paragraph 10 of Plaint and stated that despite issuance of a demand notice and notice of intention to sue the Respondent failed to discharge and release her title necessitating the filing to this suit. She prayed for judgement to be entered in her favour as prayed 4. By statement of defence dated 1st November, 2022, the Respondent denied the Appellant’s allegations in her plaint and put her to strict proof thereof. They stated that by charge 8th April, 2009, the deceased applied for and was granted a loan facility of Kshs. 400,000/- and charged the suit property as security on condition that the charge was to be a continuous security for payment and discharge of all money, obligation and liability covenanted to be discharged by the charge. The charge instrument was executed by the Appellant, duly witnessed and registered on the 21st April, 2009. 5. The Defendant stated that the deceased consequently applied for another loan and was granted a further security of Kshs. 400,000/- secured by a further charge dated 13th December, 2011 on the subject property hence the consolidated facility aggregated at Kshs. 900,000/-. The 2nd facility was duly executed by the Appellant and witnessed and registered on the 25th January, 2012 at the Nakuru Lands registry and noted on the encumbrance section. He said that the deceased further applied for and was granted a further facility of Kshs. 200,000/- on 3rd October, 2014 which was secured by a third charge executed by the Appellant aggregating the facility at Kshs. 1,100,000/-. 6. The Respondent stated that the Appellant never cleared the facility and that the Appellant executed a guarantee undertaking to perform the borrower’s obligtaaion in accordance with the contract between the deceased and the deceased in case the deceased breached the terms of the said contract. He said that as at 3rd October, 2022, the balance owing to the Respondent stood at Kshs. 787,679/82 which amount continues to accrue interest. The Respondent said that via letter dated 27th July, 2021, they wrote to the Appellant requesting for a repayment plan for clearing the loan in order for the Respondent to start the process of discharging the security document. The Respondent concluded that the Appellant discharged various charge instruments dated 8th April, 2009, further charge dated 13th December, 2011 third further charge dated 3rd October, 2014 as the chargor and guarantee & indemnity dated 13th December, 2011. They stated that the guarantee is stamped on 15th October, 2014 and another guarantee dated 10th June, 2016 and that the said securities were to be discharged upon clearance of the facility. The Respondent prayed that the Appellants suit be dismissed with costs. 7. The appellant filed a rely to defence dated 9th February, 2024 in which she reiterated the contents of her Plaint, denied that Respondent’s averment in his Defence, that the Respondent’s Defence be struck out and judgement be entered in her favour as prayed. 8. The trial court considered the evidence placed before it and found that the Appellant failed to prove her case on a balance of probability and dismissed the Appellant’s case with costs. 9. The Appellant was aggrieved by the Trial Court’s decision filed the instant appeal. In the memorandum of appeal, the Appellant impugned the trial courts finding on grounds that; - 1. The Trial Magistrate erred in law and facts by failing to appreciate the nature of the suit thus came up with the unsupported judgement of facts and law. 2. That the trial magistrate misdirected himself and based his findings on wrong considerations. 3. That the trial Magistrate erred in law and fact in finding that the Respondent had proved the case against the Appellant and granted judgement in their favour. 4. That the trial Magistrate erred in law and fact in not considering the Appellants statement and weight of the evidence on record. 5. That the trial Magistrate erred in law and fact in failing to appreciate adequately or at all the evidence on record sufficiently proved the appellant’s claim. 6. That the trial Magistrate erred in law and fact by finding in favour of the Respondent against the Weight of the evidence and submissions on record, and that 7. That the trial Magistrate erred in law and fact in finding that the Respondent proved the doctrine of continuing securities with no evidential value. 10. The Appellants prayed that the appeal be allowed with costs. 11. This being a first appeal, I am alive to the responsibility of the court. I am therefore called upon to analyse and re-assess the evidence on record and reach my own conclusions bearing in mind that I neither saw nor heard the witnesses testify (see **Selle v Associated Motor Boat Co**. [1968] EA 123). In **Kiruga v Kiruga & Another** [1988] KLR 348, the Court of Appeal observed that; ” An appeal court cannot properly substitute its own factual finding for that of a trial court unless there is no evidence to support the finding or unless the judge can be said to be plainly wrong. An appellate court has jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand but this is a jurisdiction which should be exercised with caution” 1. In the instant appeal, the Appellant challenges the decision of the trial magistrate in its entirety. The Court of Appeal of Nigeria discussing the issue of circumstances when an appellate court can interfere with an award of quantum in **Dumez (Nig) Ltd V. Ogboli** {1972} 3 S.C. Page 196.'' Per BADA, J.C.A held that; “The law on circumstances under which an appellate court would interfere with an award of damages is settled. An appellate court will not interfere with an award of general damages by a trial court unless the trial court acted under a mistake of law, or, where the trial court acted in disregard of principles, or, where the trial court took into account irrelevant matters or failed to take into account relevant matters, or, where the trial court acted under a misapprehension of facts, or, where injustice would result if the appellate court does not interfere; and, where the amount awarded is either ridiculously low or ridiculously high that it must have been erroneous estimate of the damage. 1. Within the Kenyan jurisdiction, in Kivati v Coastal Bottlers Ltd 4Civil Appeal No. 69 of 1984 stated that: - “The Court of Appeal should only disturb an award of damages when the trial Judge has taken into account a factor he ought not to have or failed to take into account something he ought to have or if the award is so high or so low that it amounts to an erroneous estimate." 1. PW1, the Appellant testified that she is a businesswoman in Meru. She relied on her witness statement dated 22nd September, 2022 and 19th April, 2024 as her evidence in chief. Her witness statement is a replication of her averment’s as appearing on her Defence. She also prayed that her bundle of documents dated 22nd September,2022 as Exhibit 1-3. She prayed that judgement be entered in her favour and her title be discharged by the Respondent. In cross examination, The Appellant stated that she owns the suit property. She said that the deceased was her husband and that he took out the loan 2009, 2012 and 2014 and that the loan which he fully repaid in his lifetime to wit Kshs. 400,000/- in 2009, Kshs. 500,000/- in 2012 and Kshs. 200,000/- in 2014. She said that she didn’t sign for any loan in 2016 adding that the signature in the personal guarantee form of 2016 is similar to hers. she said that she signed documents that she never understood. This marked the close of the Plaintiff’s case. **Defendant’s Case** 1. DW1 Mercy Waigwa stays in Meru and is the Respondent’s Branch Relationship Manager. She prayed that her witness statement dated 30th July, 2924 be adopted as her evidence in chief and her bundle of documents dated the same date be adopted as his exhibits 1-13. She said that the charge was a continuous security and was granted facilities of Kshs. 400,000/- in 2009, Kshs. 500,000/- in 2011 and Kshs 300,000/- in 2014. She said that the facility had reduced to Kshs. 735,914/- in 2014 but that the deceased applied for and was granted a top of facility in the same year. She said that in 2016, the Appellant a loan facility of Kshs 1,100,000/- and that the loans didn’t exceed the amounts as per the continuing security. She added that the outstanding amount as at 31st January, 2022 was Kshs. 789,698/-. She said that the Appellant signed a continuing guarantee which they used to advance the deceased a loan facility and that the continuing guarantee was to be discharged through a notice in writing which the Appellant never gave. 2. In cross examination, DW1 stated that the Appellant is the chargor and that the charge was registered in 2009. She said that the appellant signed the charge and that the deceased was advanced a loan facility of Kshs 500,000 in 2009 which was to be repaid in 36 months. She said that the loan was never repaid in full. She said that the deceased was advanced a further loan of Kshs 300,000/- and that in the letter of guarantee, the indemnity is Kshs. 200,000/-. She said that the charge was registered and that the deceased took another loan of Kshs. 1,100,000/- to which the appellant signed a letter of guarantee. She said that the subsequent loan was cleared. She said that the deceased was granted another loan of Kshs. 1,100,000/- in 2019 but that the used the continuing guarantee signed in 2016. She said that no new guarantee was signed in 2019 and that the 2019 charge was not registered. She said that a stoppage would be done if the bank were notified but that the bank was never notified. He said that the deceased made periodic payments till 31st December, 2021. In re-examination, DW1 stated that they did a further charge as the amount had exceeded the suit property but that in 2016, the amount was within the limits. She said that the Appellant signed a further guarantee letter and that a further charge was not executed in 2019. She said that funds can be credited if the bank is not notified of the death of a customer. This marked the close of the Respondent’s case. **Analysis and Determination** 1. The appeal was disposed of by way of written submissions which I have read and considered. The main issue for determination is whether the trial court erred in law and in fact in dismissing the Appellant’s case. 2. Whereas the Appellant contends that her guarantee was limited to the initial loan facility offered in 2012, the Respondents contend that the Appellant signed a continuing guarantee charging the suit property in 2016. 3. Black’s Law Dictionary defines a continuing guarantee as; “A guaranty that governs a course of dealing for an indefinite time or by a succession of credits. Also termed open guaranty.” 1. In **Surgipharm Ltd v Awuondo & another [2003]** KEHC 992 (KLR), the court relied on Halsburys Laws of England 4th Edition Vol 12 and found that; “The duration of the guarantors’ liability depends upon the terms of the Guarantee. Some guarantees are intended to cover a single credit or transaction only while others, called “continuing guarantees “are framed so as to apply to a series of credits or transactions. In the case of a single credit or transactions the guarantor’s liability extends only to the one credit or transaction agreed upon, while in the case of a continuing guarantee the liability endures until the credits or transactions contemplated by the parties and covered by the Guarantee have been exhausted or until the Guarantee itself has been revoked.” 1. The court further held that “Section 97 and s 98 of the Evidence Act are on all fours with the Halsbury’s Commentary as set out in para 1478”. A guarantee can either be discharged by notice if it is for a definite period of time and there is provision to determine it or by payment as per its terms. This is not the case here and the signed guarantee was of a continuing nature and unlimited. I find that it did cover the amount claimed in the plaint, the Guarantee being of a continuing nature.” 1. The Appellant does not dispute that she guaranteed the deceased by permitting the charge over her suit property. Her principal contention is that she did not guarantee the subsequent transactions. I have considered the Defendant's Exhibit A, particularly the Letter of Indemnity dated 10th October 2016 executed between the Appellant and the Respondent, and I note that paragraph 3 thereof provides as follows: “Continuing Security This guarantee shall be continuing security (subject to termination by notice as provided below and shall not be satisfied, discharged or affected by intermediate payment for settlement account” 1. In his ruling, the trial magistrate relied on Section 107(1) of the Evidence Act and reiterated the general rule of evidence is that he who alleges must prove. He went further to state that the burden of proof was upon the Appellant herein to prove that she never guaranteed the subsequent facilities. Much as the Appellant stated that the signature in the guarantee form dated 10th October, 2016 resembled hers, she never tendered evidence to prove that it was not indeed hers. 2. In [RNK v Barclays Bank of Kenya Limited & Garam Investments Auctioneers [2020] KEHC 5992 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kehc/2020/5992/eng%402020-04-27), the court while determining on an allegation that signatures were forged held that; “RNK ought to have sought the help of a handwriting expert to prove indeed that these signatures were forgeries” 1. The Appellant herein never tendered evidence to prove that the signatures were forged. Further she confirmed that she never withdrew the guarantee by notice. 2. I therefore find that the guarantee signed on 10th October, 2016 is a continuing guarantee hence covered the subsequent facilities. I equally find that the same was not withdrawn by notice from the bank by the Appellant. 3. I consequently uphold the learned trial magistrate’s finding that the Respondent bank tendered in evidence documentary evidence to demonstrate that the Appellant executed the charges and letters of indemnity which were never terminated. 4. The upshot is that the Appellant failed to prove her appeal against the Respondent. The same is consequently dismissed with costs. 5. It is so ordered. Right of appeal 28 days. Dated, signed and delivered via TEAMS at Nairobi on this 31st day of July, 2026. **………………….…………………….** **HON. ROSELINE OGANYO, MRS.** **JUDGE.** **In the presence of: -** Court Assistant……E, Sana.