Jamii Bora Bank Limited v Kinuthia t/a Robimart Petroleum Company; T-Gas Kenya Limited & 2 others (Third party) (Civil Suit 186 of 2018) [2026] KEHC 6005 (KLR) (Commercial & Admiralty) (30 April 2026) (Judgment)

HCCOMM NO. 186 OF 2018 P. MULWA, J. REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI COMMERCIAL AND ADMIRALITY DIVISION CIVIL SUIT 186 OF 2018 JAMII BORA BANK LIMITED ………………………………… PLAINTIFF MARTIN ROBIN KINUTHIA T/A VERSUS ROBIMART PETROLEUM COMPANY…………….……… DEFENDANT T-GAS KENYA LIMITED………………...……………1ST THIRD PARTY DAVID NJUGUNA NGOI……………………………….2ND THIRD PARTY HANNAH WAIRIMU MUTURA……………………….3RD THIRD PARTY JUDGMENT 1. The Plaintiff instituted this suit against the Defendant by way of a plaint dated 7th May 2018 seeking the following reliefs: i. The sum of Kshs 23,352,572.31 being the total outstanding amount as at 9th April 2018 Interest at 18% until payment in full Costs of the suit Any other relief that this court deems fit. ii. iii. iv. Page 1 of 16 HCCOMM NO. 186 OF 2018 P. MULWA, J. 2. The Plaintiff avers that pursuant to an offer letter dated 21st July 2015 the Defendant requested and the Plaintiff granted an advance finance facility known as Bora Personal Mortgage Loan Facility of Kshs. 24,500,000/= for the purpose of completing the purchase of property Mwea/Mutithi/Scheme/121.The loan was to be repaid within a period of 60 months in instalment of Kshs. 683,646.66. The facility was secured by a charge over the property. 3. The Plaintiff contends the Defendant failed to service the loan and fell into arrears, thus prompting the Plaintiff to exercise its statutory power of sale as a result the property was sold on 14th September 2017 to the highest bidder at the price of Kshs. 15,500,000/=. The Plaintiff avers that it went short of Kshs. 23, 352,572.31 which the Defendant has failed to settle despite repeated demands. 4. The Defendant filed a statement of defence dated 18th September 2018 denying the averments of the Plaintiff and denying being indebted to the Plaintiff. The Defendant avers that it neither applied nor executed the alleged letter of offer dated 21st July 2015. The Defendant alleges the signature on the letter offer is a forgery and fraudulent. The Defendant denies executing any charge document in favour of the plaintiff and avers that any such document was fraudulently obtained by a third party well known to the Plaintiff. the Defendant denies ever accessing the said facility, and thus the default is denied and avers that the alleged title document purportedly registered in his name is a forgery, Page 2 of 16 HCCOMM NO. 186 OF 2018 P. MULWA, J. and any document used to register the said transfer was a forgery. 5. The Defendant contends that he was never issued a redemption notice and that the subject property was undervalued at the time of public sale, and the proceeds of sale were not credited to the outstanding loan balance. He contends that if the property was properly valued, the proceeds of the purported sale would have been adequate to redeem the alleged facility in full. 6. The Defendant contends that the current account in his name reflects irregular and fraudulent transactions contrary to the known banking principles, which he gives the particulars as the alleged crediting of the account number 307177638902 with the alleged loan facility on 24th September 2015 and withdrawing the same on the same date without prior notice to him. 7. The Defendant sought to be supplied with better particulars and documents of the alleged loan facility. 8. The Third Parties did not file an appearance or attend court. 9. At the hearing, the Plaintiff called 2 witnesses while the Defendant called 1 witness. 10. Samuel Macharia Karimi testified as Pw1 before my brother Hon Justice C. Mwita. He told the court he is the debt recovery manager of the Plaintiff, he adopted his witness statement dated 22nd January 2021 and the Plaintiff's bundle of documents dated 7th August 2018, 24th July 2020 and 24th March 2022. Page 3 of 16 HCCOMM NO. 186 OF 2018 P. MULWA, J. 11. He mirrored the contents of the plaint and avers that the Defendant operated the said account and it was evident that the Defendant transferred the monies in other accounts owned by him. He testified that the Defendant did not complain of the said account and he was not aware of any complaint to any authority. He states that the Defendant still owes the Plaintiff a sum of Kshs. 23,252,572/= as at 9th April 2018. 12. During cross-examination, Pw1 testified that he joined the Plaintiff in 2018, and he could therefore not identify if it was the Plaintiff who appeared before the bank. He testified that there were conditions that the Defendant was to satisfy, and he did before the loan was disbursed. He told the court the purpose of the loan was for the purchase of the suit property. The title was in the name of T-Gas Kenya Limited who was the vendor. He told the court he was not aware if a valuation was done and was not sure whether a consent from the Land Control Board was obtained, and that he could only rely on the documents to say that the Defendant accepted the forms in the letter of offer. 13. He testified that the title document was issued on 14th September 2015 the same day the charge was registered. He told the court that statutory documents were issued to the Defendant through registered post, though he confirmed there was no copy of the postage receipt before the court. 14. Pw1 stated that a public auction was conducted on 14th September 2017 after the 45 days redemption notice. He Page 4 of 16 HCCOMM NO. 186 OF 2018 P. MULWA, J. stated that the notice indicated the property would be auctioned on 18th August 2017 at 11.00 am. As per the newspaper advert the auction was to take place on 28th September 2017 but as per the memorandum of sale the auction was conducted on 28th September 2019 to James Ndungu at Kshs. 15 Million where a deposit of Kshs 3,900,000/= was paid. He told the court that the amount was deposited in the Defendant’s current account. That after the sale, the loan continued to attract interest and the Plaintiff claimed Kshs. 23,252,572/= from the Defendant, though it had advanced him a sum of Kshs. 24,500,000/=. He claimed that the property was not sufficient to offset the loan. 15. Pw2 - Emmanuel Karisa, a Forensic document examiner, testified that he received instructions from the firm of Nyanga and Mogishu Advocates vide the letter dated 14th July 2020, requesting a report on the documents marked A1- A15. He produced his report dated 22nd July 2020. 16. He told the court that B1 contained the specimen signature and Exb. C1 and C2 bearing known handwriting and signature. That when he compared B1 (known handwriting )to C1, there were some similarities and concluded that the writings were from the same origin, while the rest were from a different person. He also told the court that when he compared the documents A1-A15 with the specimen signature on Exb. B1 together with the known Page 5 of 16 HCCOMM NO. 186 OF 2018 P. MULWA, J. signature on Exb. C1 and C2 there were some similarities in some signatures, indicating they were from the same author. 17. He told the court that the specimen B1 was taken from Robin. 18. In cross-examination, he stated that he got the said specimen from counsel who requested the examination. He says there is no percentage of error and that he did the examination to the best of his competence. And that there are circumstances which would occasion variations in signature such as age, sickness and drunkenness. He told the court the handwriting and the signature were normal. 19. Dw1 - Martin Robin Kinuthia adopted his witness statement dated 28th February 2019. He told the court he was not aware of the Plaintiff bank and only heard about it in this suit. He testified that the Third Parties were his business partners. That the 2nd Third Party who is also his uncle, as a business partner used to have his personal documents like the national identity card. He told the court that the Third Parties are aware of the Plaintiff bank and the loan. 20. During cross-examination he maintained that he has no bank relationship with the Plaintiff. He maintained that some individuals impersonated him and he reported the matter to the DCI though he did not have an OB and that nobody has been prosecuted to that effect. 21. He further told the court that he was not aware of the statement transaction on 28th October 2015. He denied Page 6 of 16 HCCOMM NO. 186 OF 2018 P. MULWA, J. issuing the alleged cheques and blames his business partners for the fraudulent transaction. 22. At the close of the hearing parties filed written submissions. The Plaintiff filed submissions dated 1st June 2025 while the Defendant filed submissions dated 25th November 2025. Plaintiff submissions 23. The Plaintiff challenges the admissibility and probative value of the Defendant’s forensic report, contending that it ought to be excluded since its maker did not testify and is deceased, thereby denying the Plaintiff the right to cross- examine. It is argued that admitting the report would occasion a miscarriage of justice and violate the right to a fair hearing. Further, the report is said to be inadmissible under Section 33 of the Evidence Act and, in any event, unreliable for lacking independence, proper methodology, and use of original or neutral documents. 24. The Plaintiff submits that its own expert report is credible, having relied on original and contemporaneous signature samples, and that the Defendant’s allegation of forgery is unproven. It is emphasized that the Defendant’s conduct, such as contesting valuation and account status, making loan repayments, and failing to report the alleged forgery to the police, demonstrates knowledge of and participation in the transaction, thereby undermining the claim of fraud. The Plaintiff maintains that the Defendant has Page 7 of 16 HCCOMM NO. 186 OF 2018 P. MULWA, J. failed to discharge the burden of proof required for allegations of fraud. 25. Further, the Plaintiff submits that all statutory notices were duly served in accordance with Sections 90 and 96 of the Land Act and Section 3(5) of the Interpretation and General Provisions Act, through registered post to the Defendant’s last known address. The burden of disproving service is said to rest on the Defendant, which he has failed to discharge. 26. The Plaintiff contends that the charged property was properly valued by a qualified valuer within the statutory period under Section 97(2) of the Land Act. It is argued that the Defendant has neither produced a counter-valuation nor demonstrated any impropriety in the valuation, and therefore the allegation of undervaluation is unfounded. 27. The Plaintiff submits that it advanced a loan facility to the Defendant, who made initial repayments before defaulting. The Defendant’s own admissions and the account statements demonstrate awareness of the loan and default. The claim that payments were made without knowledge of the loan should be dismissed as implausible. Consequently, the Plaintiff asserts that the Defendant remains indebted in the sum claimed, together with accruing interest. Defendant’s submissions 28. The Defendant submits that there is no evidence linking him to the alleged bank account or the entity Robimart Petroleum Company. He argues that the Plaintiff failed to Page 8 of 16 HCCOMM NO. 186 OF 2018 P. MULWA, J. produce essential Know-Your-Customer (KYC) documentation, incorporation records, or board resolutions to demonstrate that he opened or operated the account. It is further contended that the Plaintiff’s witness (Pw1) lacked personal knowledge of the transactions, rendering his testimony hearsay and insufficient to discharge the burden of proof under Sections 107–109 of the Evidence Act. 29. The Defendant contends that the title and the alleged sale transaction were fraudulent and forged. He argues that the Plaintiff failed to demonstrate the root of title or the process leading to registration in his name, as required where title is challenged. The Defendant points to multiple inconsistencies, including lack of evidence of payment of the purchase price, absence of proof of stamp duty and registration fees, failure to call the attesting advocate, and lack of Land Control Board consent. He maintains that the entire transaction was fictitious and that he never participated in it. 30. The Defendant further submits that the Plaintiff’s claim is based on forged documents and misrepresentation, and that he was not privy to any loan agreement, charge, or transfer. He asserts that the Third Parties fraudulently used his personal information and forged his signature to obtain the loan without his knowledge or consent. These acts of fraud, he argues, were specifically pleaded and particularized in his defence and Third-Party proceedings. Page 9 of 16 HCCOMM NO. 186 OF 2018 P. MULWA, J. 31. The Defendant emphasizes that it remained the Plaintiff’s duty to prove its claim, including the existence of a valid loan, the Defendant’s participation, and indebtedness. He contends that the Plaintiff failed to adduce cogent evidence to support its assertions and cannot rely on mere pleadings. Analysis and determination 32. Having considered the pleadings, evidence, and submissions, the following issues arise for determination: i. Whether the Defence Forensic Report Has Probative Value; ii. Whether the Plaintiff proved the existence of a valid loan facility between the parties; iii. Whether the Defendant executed the loan and security documents; iv. Whether the Plaintiff proved the Defendant’s indebtedness; v. Who bears the costs of the suit? Whether the defence Forensic Report has probative value 33. The Plaintiff has taken issue with the admissibility and probative value of the Defendant’s forensic report on the basis that its maker did not testify and is said to be deceased. It is the Plaintiff’s position that admission of such a report would be prejudicial, as it was denied the opportunity to test its contents through cross-examination, thereby offending the right to a fair hearing. Page 10 of 16 HCCOMM NO. 186 OF 2018 P. MULWA, J. 34. The Defendant, though relying on the report, did not call its maker as a witness, nor did he lay a proper evidential foundation to bring the report within the recognized statutory exceptions to the hearsay rule. 35. The applicable law is found in Sections 33 and 35 of the Evidence Act. These provisions permit admission of statements made by persons who cannot be called as witnesses, but only where strict conditions are met. As was held in Kinyatti v Republic [1984] KLR 712, documentary evidence whose maker is not called must fall squarely within these statutory exceptions; otherwise, it remains hearsay and carries little or no probative value. 36. It is now settled that where the maker of a document is not called, and the opposing party is denied the opportunity to cross-examine, such evidence must be treated with caution. The court must be satisfied that the statutory thresholds have been met before placing reliance on it. 37. In the present case, although it was asserted that the maker of the report is deceased, no evidence was placed before the Court to demonstrate the circumstances under which the report was prepared, whether it was made in the ordinary course of business, or whether it satisfies the requirements under Section 33 of the Evidence Act. 38. In those circumstances, I find that the Defendant’s forensic report was not properly admitted in evidence. At best, it carries minimal evidential weight and cannot be Page 11 of 16 HCCOMM NO. 186 OF 2018 P. MULWA, J. relied upon to establish the Defendant’s allegations of forgery. Whether the plaintiff proved the existence of the loan facility 39. The Plaintiff’s case is that it advanced a mortgage facility to the Defendant at his request, as evidenced by the letter of offer dated 21st July 2015. It relies on that document, the statements of account, and what it describes as the Defendant’s conduct, namely, operation of the account and repayment by cheque, as proof of a subsisting banker–customer relationship. 40. The Defendant’s response is a complete denial. He maintains that he neither applied for the facility nor executed any of the documents. He further contends that the Plaintiff failed to produce foundational documents such as account opening forms, KYC records, or any direct evidence linking him to the account. He also challenges Pw1’s testimony as being based on records rather than personal knowledge. 41. The law on the burden of proof is clear. Sections 107, 108 and 109 of the Evidence Act place the burden on the party asserting a fact. 42. In this case, the burden lay squarely on the Plaintiff to prove the existence of the loan relationship. While the Plaintiff relied on documentary evidence, its principal witness (Pw1) conceded that he did not witness the loan application process and could not confirm whether the Defendant personally appeared before the bank. Page 12 of 16 HCCOMM NO. 186 OF 2018 P. MULWA, J. 43. The Plaintiff also called a forensic expert (Pw2), whose evidence was inconclusive. He testified that some signatures matched the Defendant’s specimen while others did not. That evidence, in my view, falls short of the level of certainty required where the authenticity of documents is directly challenged. 44. I must emphasize that in transactions of this nature, particularly those involving substantial lending secured by land, the court expects strict proof of the banker–customer relationship. This includes production of primary evidence such as account opening documents, KYC records, executed mandates, and evidence from the officers who processed the transaction. 45. Where a root transaction is challenged it is not sufficient to dangle the instrument. The party must go beyond it and demonstrate the validity of the document. (See Maina v Maina (Civil Appeal 239 of 2009) [2013] KECA 94 (KLR). 46. In the present case, the Plaintiff did not produce account opening forms, KYC documentation, or evidence of compliance with Central Bank of Kenya prudential guidelines. Nor did it call the officer who processed the loan or witnessed the execution of the documents. 47. These omissions are not minor. They go to the very foundation of the Plaintiff’s claim. In the face of such evidentiary gaps, the Defendant’s denial cannot be dismissed as a mere afterthought. Page 13 of 16 HCCOMM NO. 186 OF 2018 P. MULWA, J. 48. I therefore find that the Plaintiff failed to discharge its burden of proving the existence of a valid loan facility between itself and the Defendant. Whether the impugned documents were executed by the Defendant 49. The Plaintiff submits that the Defendant’s allegation of forgery is unproven and that its forensic report confirms similarities between the questioned signatures and known samples. It also argues that the Defendant’s failure to report the alleged fraud weakens his defence. 50. The Defendant, on the other hand, maintains that the entire transaction was fraudulent and that his identity documents were misused by third parties. 51. Allegations of fraud must not only be specifically pleaded but strictly proved. (See Arthi Highway Developers Limited v West End Butchery Limited & Others [2015] eKLR). 52. Having considered the evidence, I find that the Plaintiff’s forensic evidence was not conclusive. The expert conceded that some signatures differed and that variations may occur. Further, the specimen signatures were supplied through counsel, raising concerns as to their independence. 53. Coupled with the Plaintiff’s failure to call attesting witnesses or produce primary documentation evidencing execution, the evidentiary gaps become even more pronounced. Page 14 of 16 HCCOMM NO. 186 OF 2018 P. MULWA, J. 54. In my view, the Plaintiff did not prove, to the required standard, that the Defendant executed the impugned documents. The Defendant’s challenge to the root of the transaction remains unanswered. Whether the Defendant is indebted to the Plaintiff 55. The Plaintiff submits that the Defendant remains indebted in the sum of Kshs. 23,352,572.31, being the outstanding balance after the sale of the charged property. It is contended that the loan was duly advanced, the Defendant defaulted, and the sale proceeds were insufficient to liquidate the facility in full. 56. The Defendant, in rebuttal, maintains that he neither applied for nor received the alleged loan and, consequently, cannot be held liable for any purported indebtedness. He asserts that the entire transaction was founded on fraud and forgery, and that no contractual relationship existed between himself and the Plaintiff.. 57. A claim for recovery of debt must be anchored on a valid and enforceable contractual relationship, as the court can not rewrite a contract for the parties. (See National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another [2001] eKLR). 58. In the present case, this Court has already found that the Plaintiff failed to prove the existence of a valid loan relationship and execution of the relevant documents. The claim for indebtedness cannot stand. Page 15 of 16 HCCOMM NO. 186 OF 2018 P. MULWA, J. 59. In the circumstances, I find Plaintiff has failed to prove its case on a balance of probabilities. The evidentiary gaps identified are fatal to its claim. 60. Accordingly, the Plaintiff’s suit is dismissed in its entirety 61. Costs shall follow the event and are awarded to the Defendants. JUDGMENT delivered virtually, dated and signed at NAIROBI This 30th day of April 2026. P.M. MULWA JUDGE In the presence of: Ms. Kale h/b for Mr. Dachi for Plaintiff Ms. Mwai Muthoni h/b for Mr. Ms. Kariuki for Defendant Court Assistant: Lispa Page 16 of 16