https://new.kenyalaw.org/akn/ke/judgment/keca/2026/946

Micheu v Co-operative Bank of Kenya Ltd (Civil Appeal 608 of 2019) [2026] KECA 946 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KECA 946 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal 608 of 2019 SG Kairu, P Nyamweya & WK Korir, JJA May 15, 2026 Between Obadiah Gitonga Micheu Appellant and Co-operative Bank of Kenya Ltd Respondent (Being an appeal against the judgment and decree of the High Court of Kenya at Nairobi (G.L. Nzioka, J.) dated 1st October 2018 in HCCC No. 275 of 2014 Civil Suit 275 of 2014 ) Judgment 1.In a plaint dated 24th June 2014, the appellant, Obadiah Gitonga Micheu, moved the High Court seeking a mandatory injunction compelling the respondent to release the title document in respect to Title No. Mwimbi/Chogoria/2092. The appellant also sought a mandatory injunction compelling the respondent to remove his adverse listing with the Credit Reference Bureau. In addition, the respondent sought an award of Kshs. 215,880,000 as special damages, an award of general, exemplary and punitive damages, interest and costs of the suit. The respondent, the Co-operative Bank of Kenya Ltd was the defendant. 2.In a judgment delivered on 1st October 2018, the High Court (G. L. Nzioka, J.), in dismissing the suit, found that the litigation was triggered by the respondent’s negligence and therefore awarded the costs of the suit to the appellant. In reaching her decision, the learned Judge held that the appellant had a duty to mitigate his losses and therefore there were no grounds for awarding the special damages. In declining to award general damages, the learned Judge held that:“ 44.In considering the rival submissions on this issue, I find that the relationship between the parties herein, was based on a contractual relationship founded on the Law of Guarantees. I have already noted herein the guarantor assumes the responsibility to pay a debt where the principal debtor fails to. I have also held that, though the Bank was negligent in not providing the accurate information as to the outstanding balance, on the loan facility on which the Plaintiff was liable, the Plaintiff was not released from liability to pay, and when it was brought to his knowledge, he still did not pay. The referral of any information to the CRB is a requirement of the law and the Defendant as a financial institution are entitled to do the same, and as a result of their negligence in notifying the Plaintiff of the outstanding balance, the Court has held that the Plaintiff will not pay any interest on the said sum. I do not find in the given circumstance, that the Defendants were malicious, but I find that they were more negligent. In the given circumstances, I find no basis for awarding the orders sought.” 3.Additionally, the learned Judge held that the appellant owed the respondent the sum of Kshs. 198,700.95 and directed him to pay the amount within 60 days without any interest before the title deed for L.R. No. Mwimbi/Chogoria/2092 could be released to the administrator of the estate of the deceased registered owner of the parcel of land. 4.The appellant, being dissatisfied with the whole judgment, has moved to this Court raising 17 grounds of appeal. In the grounds of appeal, the appellant primarily argues that the learned Judge erred by failing to find that the respondent violated his rights as a guarantor by refusing to provide a notice of shortfall, a statement of accounts, or a due demand after receiving the redemption sum of Kshs. 952,262.85, which action by the respondent was unprofessional, reckless, malicious and a breach of the right to information; in failing to find that the respondent's subsequent listing of the appellant with a Credit Reference Bureau was unlawful and malicious because the appellant was not served with the required adverse notice under the Banking Act, and compounding the injury by keeping him blacklisted for seven years and denying him a chance to mitigate the situation; by failing to award damages despite finding the respondent negligent; by rejecting professionally audited accounts adduced to prove the loss of Kshs. 215,880,000; in failing to find that the respondent acted maliciously; and by improperly awarding the respondent Kshs. 198,000 when there was no counterclaim for the amount. 5.From the plaint, the appellant’s case was that he was a director of Chogoria Junior School when the respondent advanced a loan facility to the school. The appellant guaranteed the loan, which was also secured by two parcels of land: one registered under his name, being Title No. Mwimbi/Chogoria/2091, and another registered in the name of Jediel Micheu, being Title No. Mwimbi/Chogoria/2092. The appellant contended that on 12th May 2008, upon being served with a statutory notice that the outstanding loan account balance was Kshs. 1,014,627, he approached the respondent, who acceded to his request to subdivide and dispose a portion of Title No. Mwimbi/ Chogoria/2091 by private treaty, on condition that the purchaser’s advocates be amongst those in the respondent’s panel and that the advocates give an undertaking that the proceeds of the sale would be deposited with the bank towards clearing the debt. Subsequently, on 30th September 2008, he received another demand letter informing him that the outstanding debt was Kshs. 952, 268.85, which he paid in full from the sale proceeds of a portion of Title No. Mwimbi/Chogoria/2091. The appellant stated that the proceeds of the sale were channeled to the respondent through Kiautha Arithi Advocates by way of a banker’s cheque. The appellant averred that despite the respondent not acknowledging receipt of the amount, it nonetheless discharged Title No. Mwimbi/Chogoria/2091 vide a duly executed discharge of charge dated 17th November 2008. In his evidence, the appellant stated that contrary to the provisions of the Banking Act, the respondent had never supplied him or the principal debtor with the bank statements in respect of the loan account, before and after clearing the outstanding debt, despite several demands for the statements. 6.Fast forward to 1st February 2011, when the appellant established Chogoria Heritage Hotel for outside catering. When he required Kshs. 50,000.00 to upgrade the venture, he applied for a loan from Kenya Commercial Bank on 25th July 2012, but it was denied because he was listed negatively with Credit Reference Bureau Africa Limited t/a Trans-Union, based on information from the respondent. The appellant contends that such listing was not only illegal but also malicious, and that the respondent did not issue him with an adverse notice before the listing, he didn’t owe the respondent any monies at the time, and was not given reasons for such listing by the respondent. He averred that upon upgrading the business, the monthly income therefrom was projected to rise from Kshs. 73,000 per month to Kshs. 90,000, and that, as a result of the negative listing, he was forced to close down the venture. 7.It was also the appellant’s case that upon establishing Chogoria Teachers College on 17th May 2010, he invited officials from St. Paul’s University to visit the facility on 3rd May 2012 with a view to collaborating with the university. Upon inspecting the facility, the officials recommended specific improvements to bring it up to standards befitting a campus. Since this upgrade required a considerable amount of financing, he once more approached Kenya Commercial Bank on 3rd September 2013 for a loan of Kshs. 400,000, but the application was again rejected on account of the Credit Reference Bureau listing by the respondent, this time citing an outstanding debt of Kshs.952,262. 85, which amount he had cleared. He averred that as a result, he missed an opportunity to increase his monthly income from Kshs. 1,500,000 to Kshs. 30,000,000 annually. He maintained that the listing with the Credit Reference Bureau by the respondent was illegal, unlawful and malicious, and contravened the provisions of regulation 18(1) and 28 of Legal notice No. 97, the Banking (Credit Reference Bureau) Regulations, 2008, under the Banking Act Cap 488. It was his case that as a result of the aforesaid listing and being a village elder, a member of the Board of Chogoria Boys High School, Chairman of Chogoria Water Project and a member of Chogoria Forest Association, he had suffered loss of dignity and integrity among the members of the public and could access any loan from any banking institution for a period of 7 years. He stated that he was forced to resign from the directorship of Chogoria College and therefore lost income from the college. He maintained that the respondent’s actions violated his constitutional right to earn a decent living. 8.Upon entering appearance, the respondent filed a statement of defence, later amended on 8th July 2015, denying liability. It was the respondent’s case that it advanced the appellant loan facilities of Kshs 340,000 on 14th November 2005, Kshs 600,000 on 10th June 2006, and Kshs 265,000 on 2nd August 2006. The facilities were secured by two parcels of land, namely Mwimbi/Chogoria/2091 and Mwimbi/Chogoria/2092. According to the respondent, the interest charged on the loan facilities was to be calculated daily, debited monthly, and in the event the loan fell in arrears, a penalty of 0.5% per month applied, calculated on the daily amount in arrears and payable monthly until the account was fully regularized. The respondent contended that the borrower defaulted on the loan, and on 12th May 2008, it served the guarantors, being the appellant and Jediel Micheu, with statutory notices of sale of the charged properties pursuant to section 74 of the Registered Land Act. According to the respondent, as at 12th May 2008, the outstanding balance on the loan stood at Kshs. 1,014,627.00, which amount continued to accrue interest and penalties. The respondent stated that, despite yielding to the appellant’s request to dispose of Mwimbi/Chogoria/2091 by private treaty and to clear the guaranteed amount, the borrower, through the appellant, in a letter dated 18th August 2008, promised to pay a sum of Kshs. 400,000 and requested the release of Title No. Mwimbi/Chogoria/2091. 9.The respondent maintained that vide a letter dated 30th September 2008, it informed the appellant of its accession to the request and that the title would be released once the aforementioned conditions are met. The respondent also stated that it indeed informed the appellant that the loan balance as at 30th September 2008 was Kshs. 952,262.85, which continued to accrue interest and penalties as per the loan terms, and that the same was exclusive of the loan amount in the Borrower’s account number 016C857313002, which stood at Kshs 133,333.10.00, and which was inadvertently not included in the outstanding arrears. The respondent acknowledged that it received Kshs. 952,262.85 from the firm of Kiautha Arithi & Company Advocates. It was also the respondent’s acknowledgement that although this sum was sufficient to settle the debt secured by the property Title No. Mwimbi/Chogoria/2091, it was utilized towards liquidating the debt secured by property Title No. Mwimbi/Chogoria/2092. The respondent also maintained that, as at 20th November 2008, when the funds were paid, they were insufficient to clear the entire loan amount, as the debt had accrued additional interest, partly occasioned by the delay in forwarding the cheque. 10.According to the respondent, the appellant at all material times knew why Title No. L.R. No. Mwimbi/Chogoria/2092 could not be released because they held several meetings with him, imploring him to clear the outstanding balance to enable the release of the security. The respondent stated that it was the appellant’s refusal to make payments that prompted their referral of his name to the Credit Reference Bureau, which they contend was legally and properly done in accordance with the Banking (Credit Reference Bureau) Regulations, 2008. It was also the respondent’s case that, through a letter dated 19th August 2010, it notified the appellant that his details had been referred to the Bureau and that any adverse effect suffered by the appellant was because of the appellant’s own failure to service the loan facility. The respondent denied all the particularized instances of malice, fraud, misrepresentation, and defamation, arguing that the appellant, being the registered proprietor of Chogoria Junior School, was not only a guarantor of the loan but a relevant and key figure in the whole transaction. The respondent also averred that the appellant was never the registered proprietor of Chogoria College and therefore lacked the locus standi to claim damages and/or exemplary and punitive damages on behalf of the institution or on account of any alleged dealings of the college. The respondent maintained that the release of title to L.R. No. Mwimbi/Chogoria/2092 could only happen once the appellant fully cleared the loan balance. Further, that the parcel of land was not registered in the name of the appellant but that of Jediel Micheu, who was deceased, and therefore the appellant was estopped from demanding release without a letter of authority. Regarding the failure to provide the bank statement to the appellant, the respondent stated that a bank customer should be able to meet the costs of extracting the statement hence, in the absence of sufficient funds in the account to meet such a request, the bank could not provide the statement. 11.In the appellant's submissions 7th October 2025, counsel highlighted key legal arguments regarding the respondent's failure to release security, wrongful credit listing, and errors on the part of the learned Judge in respect to the award of damages. He asserted that the respondent had a duty to inform the appellant of any outstanding loan balance after he paid Kshs 925,262.85 in 2008. Counsel argued that the lack of bank statements or payment demands violated the appellant's constitutional right to information under Article 35, creating a "clog" on his equitable right to redeem his land Title No. Mwimbi/Chogoria/2092. Buttressing this submission, counsel relied on Surya Holdings Limited & 2 Others vs. CFC Stanbic Bank Limited [2015] KEHC 2209 (KLR) to emphasize that a chargor (borrower) must be informed of the loan status to be able to exercise their right of redemption. Counsel referred to Equity Bank Limited & Another vs. Robert Chesang [2016] KEHC 2558 (KLR) to reiterate that banks have a duty of utmost good faith and must exercise reasonable care and skill in their dealings with customers. The case of Gomba Holdings UK Ltd & Others vs. Homan & Another [1986] 3 All ER 94 is cited to support the principle that the right to redeem requires access to sufficient information to make it effective. 12.Counsel argued that the respondent's referral of the appellant to the Credit Reference Bureau in 2010, leading to a listing in 2012, was illegal and malicious, as the bank did not serve the required 30-day "adverse notice" before the referral. Counsel highlighted that the respondent had other means of recovering the debt, such as disposing the security held. Counsel contended that the respondent violated regulation 28 of the Banking (Credit Reference Bureau) Regulations, 2008, regarding the notice requirement. Counsel also referred to Harishchandra Bhovanbhai Jobanputra Bhavna Harishchandra Jobanputra vs. Paramount Universal Bank Limited & 3 Others Suresh Ghedia Rajesh Ghedia [2019] KECA 582 (KLR) to urge that the right to redeem is only extinguished upon a valid sale to a third party, and therefore the bank's actions prematurely and unlawfully interfered with this right. 13.Referring to the principle enunciated in Hahn vs. Singh [1985] KECA 129 (KLR) that special damages must be specifically pleaded and strictly proved, counsel faulted the learned Judge for awarding Kshs. 198,700 to the respondent, asserting that the claim was neither pleaded nor proved as special damages. As regards the dismissal of the appellant’s claim for special damages, counsel submitted that the learned Judge erred in rejecting the financial reports without any legal basis. Finally, counsel argued that although the trial Judge correctly found the respondent negligent for failing to inform the appellant of the status of the loan accounts, she erred by failing to award damages for the resulting loss of business opportunities. He relied on Equity Bank Limited & Another vs. Robert Chesang (supra) to emphasize that a breach of the banker-customer contract, resulting in injury or loss of opportunity, should lead to an award of damages. 14.Opposing the appeal, counsel for the respondent, relying on the submissions dated 3rd November 2025, argued that the appeal lacks merit since the High Court Judge correctly analyzed the evidence and considered the law. Counsel submitted that the appellant did not settle the full debt, arguing that while the appellant paid Kshs 952,262.85, this amount represented the outstanding balance as of 30th September 2008. According to counsel, this amount did not include the actual debt as at 20th November 2008, when the payment was received, as penalties and interest accrued from 30th September 2008 to 20th November 2008. According to counsel, the equity of redemption and the right to recover the security can only be attained once the debt is paid in full, and that since a balance remained, the respondent's retention of Land Title No. Mwimbi/Chogoria/2092 as continuing security remained lawful. Counsel relied on Surya Holdings Limited & 2 Others vs. CFC Stanbic Bank Limited (supra) to assert that the equity of redemption is only exercisable upon the full repayment of a debt. 15.Counsel also contended that referring the appellant's information to the Credit Reference Bureau was a statutory obligation under section 31(4) of the Banking Act. Denying the allegations of malice, counsel argued that forwarding accurate information regarding an outstanding loan does not constitute malice. He also pointed out that under the Banking (Credit Reference Bureau) Regulations, 2008, the respondent was a "reporting institution," not a "user" of the information. Therefore, it was not legally required to issue an “adverse action notice” to the appellant. Additionally, counsel argued that the appellant’s reliance on the 2013 Regulations is misplaced, as the listing occurred when the 2008 Regulations were in force. He referred to section 31(4) and 31(5) of the Banking Act to establish the mandatory duty of banks to share credit information and the legal protection granted for disclosures made in good faith. 16.Counsel submitted that the High Court properly rejected the appellant's claim for Kshs. 215, 000,000 in special damages. Pointing out the principles undergirding the award of special damages, counsel argued that the "audited accounts" provided by the appellant were produced by an unqualified person, were not intended for court use, and did not follow correct accounting practices. Counsel argued that the appellant failed to prove that his business losses or the rejection of subsequent loans were directly attributable to the respondent, and that the appellant had a duty to mitigate his losses by seeking legal redress to clear his credit standing earlier. Counsel relied on Rupa Cotton Mills (EPZ) Ltd & 2 Others vs. Bank of Baroda (Kenya) Limited [2012] KEHC 5895 (KLR) to urge that a dispute over the exact amount owed does not exempt a bank from its obligation to report an outstanding loan to the Credit Reference Bureau. The case of Capital Fish Kenya Limited vs. The Kenya Power & Lighting Company Limited [2016] KECA 56 (KLR) was referenced to emphasize that the burden of proof in a claim for special damages cannot be relaxed, especially when the sums involved are significant. While Ryce Motors Ltd & Another vs. Muchoki (1995-98) 2 E.A. 363 was cited to argue that informal accounting papers do not constitute sufficient proof of income for purposes of awarding special damages. 17.We have considered the record of appeal, the submissions, and the authorities relied on by counsel for all parties. As this is a first appeal, our mandate flows from rule 31(1) of the Court of Appeal Rules, and it entails re-appraising the evidence and drawing inferences of fact. This mandate was aptly summarized by the Court in Equity Bank Limited vs. Neptune Credit Management Limited [2016] KECA 385 (KLR), thus:“As was held by this court in Selle vs. Associated Motor Boat Company Ltd [1968] EA 123, this court is empowered to subject a matter on a first appeal to a retrial and come to its own conclusion.” 18.From the evidence placed before us, there are certain undisputed facts. There is no doubt that the appellant was a director of Chogoria Junior School (the School). It is also undisputed that the respondent advanced a loan facility to the School, and the appellant, together with Jediel Micheu, guaranteed the loan using their respective parcels of land title numbers, being L. R. No. Mwimbi/Chogoria/2091 and L. R. No. Mwimbi/Chogoria/2092. On 30th September 2008, the respondent raised a demand of Kshs 952,262.85/=, which was paid off on 17th November 2008. Consequently, the title for L. R. No. Mwimbi/Chogoria/2091, registered in the name of the appellant, was discharged, while the title for L.R. No. Mwimbi/Chogoria/2092, registered in the name of Jediel Micheu, is yet to be discharged. The respondent’s position is that there is an outstanding debt that accrued after 30th September 2008 and remains unpaid. The divergence between the parties is that whereas the respondent contends that it is on this basis that it forwarded the appellant’s name to the credit reference bureau, the appellant argues that the respondent did not comply with the law in referring his name to the bureau, and that the respondent continues to withhold his title illegally and as a result of the reference, he has suffered both financially and emotionally. 19.The question then is whether the debt was settled in full. On this, we agree with the learned Judge that indeed, as at 17th November 2008, the balance of Kshs. 952,262.85 that was due as of 30th September 2008, must have gone up. Indeed, the letter of offer by the respondent to the appellant, dated 10th June 2006, at clause 7 supports the respondent’s case that the interest on the facility was to be calculated daily and debited monthly. The account, having been running, must have accrued interest and penalties as per the terms of the facility, and therefore, Kshs. 952,262.85 was not the final debt due. 20.Having established the foregoing, the next line of inquiry is whether the appellant was aware of the existence of the balance. We think not. The respondent relied on an internal memo from the Manager Chuka to Head of Retail Recoveries dated 2nd April 2009 purporting to be evidence that the appellant was made aware of the pending balance. In our view, there is no evidence that the internal memo was communicated to the appellant, who is not indicated to be among the recipients of the ame. There are several letters on record from the appellant, including the one dated 20th October 2013, through which he sought a statement of accounts for the loan facility account. This was three years after the respondent referred the appellant's details to the credit reference bureau through a letter dated 19th August 2010. This chain of events leads us to believe the appellant’s version that he became aware of the loan balance when he applied for a facility from the Kenya Commercial Bank on or about 25th July 2012. We therefore find that the respondent did not provide the appellant with his statement of account or inform him that there was an outstanding balance. 21.The next issue is whether the respondent maliciously caused the listing of the appellant with the credit reference bureau. In determining this issue, we must answer two pertinent questions. Firstly, which question we have already addressed, is whether there was a pending debt on the loan facility account. We have already found that even though the appellant deposited the amount claimed as of 30th September 2008 on 17th November 2008, the amount accrued between the two dates was not computed. Therefore, there was a pending amount to which the appellant bore the obligation to settle, but had not settled. The second interrogation pertains to whether the appellant’s listing with the Credit Reference Bureau was procedural. 22.Under regulation 28 of the then-in-force Banking (Credit Reference Bureau) Regulations, 2008, the respondent was required to notify the appellant of the names and addresses of the credit reference bureaus to which his information had been submitted within 30 days of the first listing of his information with the bureau. This information could have been deemed supplied once the respondent sent the notice to the appellant at his last known address. We reproduce regulation 28 as follows:“ 28.(1)Institutions shall be required to -a.notify each customer of the name and address of the Bureaus to which the customer's information has been submitted under these Regulations, within thirty days of the first listing of the customers' information with the Bureaus;b.issue an adverse action notice to a customer against whom a decision has been taken or determination made, in whole or in part, that is adverse to the interests of the customer based on information obtained from a Bureau;c.the adverse action notice shall be provided at the time the adverse decision or determination is communicated to the customer and shall notify the customer -i.that customer information played a role in the decision;ii.the name, address and telephone number of the Bureau that provided the customer information;iii.the customer's right to a free copy of the information provided by the Bureau, andiv.the customer's right to dispute such information with the bureau and, if erroneous or outdated, have it corrected.2.Institutions shall be deemed to have notified the customer if they send the notifications issued subsequent to sub-regulation (1) to the customer's last known address by registered mail or by certificate of posting.3.Institutions shall be responsible for providing accurate information to Bureaus.4.Institutions shall be entirely responsible and under obligation to submit and update all customer information to the Bureau in accordance with these Regulations2.Where an institution has provided customer information to the bureau and subsequently becomes aware that the information was inaccurate at the time of it was provided, the institution will within five working days from the day the institution becomes aware of the inaccuracy, give the Bureau an amendment notice instructing it to delete the inaccurate information and replace with the correct information3.Institutions shall ensure that the customer information furnished pursuant to regulation 14 is provided to all licensed Bureaus.” 23.The respondent was therefore statutorily required to notify the appellant of the adverse credit information listing within 30 days of such action. The right to such notification is not a mere procedural nicety but an essential safeguard intended to protect a customer from arbitrary, erroneous, or unfair credit profiling. In our view, this statutory obligation is in consonance with Article 47 of the Constitution, which guarantees every person the right to administrative action that is expeditious, efficient, lawful, reasonable, and procedurally fair. The requirement of notification serves a substantive purpose. It enables the customer to promptly access their credit report, verify the accuracy of the information submitted, and invoke the dispute-resolution mechanism under regulation 20. To deny or delay such notification is to deny the customer a meaningful opportunity to be heard, thereby undermining both statutory protections and constitutional guarantees of fair administrative action. We are persuaded and agree with the holding of the High Court in Amson Njoka Mwenda & Hilda Kaari Mwenda vs. CFC Stanbic Bank Limited & Credit Reference Bureau Africa Ltd. [2019] KEHC 7124 (KLR) that a bank bears a statutory duty to notify a customer within thirty days of the first listing of adverse credit information, and that failure to do so renders the listing susceptible to challenge. The High Court in that instance emphasized that continued publication of adverse credit data without compliance with the notification and dispute mechanisms prescribed by the regulations was unlawful. 24.Considering the particulars of fraud and malice enumerated in the plaint, and in light of our finding that there was a pending uncleared loan, the only breach by the respondent was the failure to notify the appellant of the adverse listing. The respondent had a positive statutory duty which it neglected to perform, thereby infringing on the appellant’s right to fair administrative action. We would, however, be going overboard were we to equate such negligence with malice. 25.At this juncture, we must now turn to the prayers sought by the appellant. Having found that there was a loan balance yet to be cleared, we do not think a mandatory injunction directing the respondent to release Title No. Mwimbi/Chogoria/2092 is merited. The release will be subject to the terms of the agreement between the parties. However, we agree with the appellant that the learned Judge erred in quantifying the alleged outstanding amount and directing the appellant to pay the same. No evidence was adduced in support of the amount allegedly owed to the respondent by the appellant, and neither was there a cross-claim by the respondent. The learned Judge was nevertheless correct in holding that the failure by the respondent to demand any outstanding amount from the respondent would not entitle it to any interest and penalties apart from that which accrued between 30th September 2008 and 20th November 2008. Any interest and penalties that accrued thereafter to date are attributed to the respondent’s negligence, and it would be offend the dictates of justice to ask the appellant to meet the same. 26.We now turn to the appellant’s claim for loss of income. The United Kingdom Court of Appeal in Keith Smeaton vs. Equifax PLC [2013] EWCA Civ 108 considered the issue of causation, specifically, whether there existed a causal link between Mr. Smeaton’s alleged loss and the listing by a Credit Reference Bureau and held that:“Approaching the matter on the basis of the traditional three-fold test of foreseeability, proximity and whether it is fair, just and reasonable to impose a duty, Mr Handyside supplied four compelling reasons which, to my mind, demonstrate conclusively why it is inappropriate here to superimpose on whatever is the statutory duty a co-extensive duty of care in tort. Thus:-“(1)It is doubtful whether it was reasonably foreseeable that the recording of incorrect data on Mr. Smeaton’s credit reference would cause him any loss, having regard to the practices operated by the credit industry set out in the Guide to Credit Scoring 2000. A person whose credit application was rejected because of adverse CRA data would be told of that fact and would be entitled to take steps to correct (or dispute) that data and to require the lender to reconsider the application for credit having regard to further, correcting information provided by the applicant.2.It would also not be fair, just or reasonable to impose a duty. In particular, imposing a duty owed to members of the public generally would potentially give rise to an indeterminate liability to an indeterminate class.3.It would also be otiose given that the DPA provides a detailed code for determining the civil liability of CRAs and other data controllers arising out of the improper processing of data.4.Apart from the DPA, Parliament has also enacted detailed legislation governing the licensing and operation of CRAs and the correction of inaccurate information contained in a credit file in the CCA 1974. This provides for the possibility of criminal sanctions, but does not create any right to civil damages. In such circumstances it would not be appropriate to extend the law of negligence to cover this territory.” 27.Tomlinson L. J proceeded to hold that:“I agree with Mr Handyside that in most cases of applications for credit failed on account of incorrect data the harm likely to be suffered is temporary inconvenience. It is possible that the judge overlooked this as a result of his flawed conclusion that it was inaccurate data, or more precisely the alleged breach of duty which gave rise thereto, which prevented Mr. Smeaton / Ability Records from obtaining credit in and after July 2006.” 28.We agree with the above position as the proper approach to rights and obligations emanating from the Banking (Credit Reference Bureau) Regulations. Additionally, it is necessary to note that regulation 20 of the 2008 Regulations provided that a customer whose details were forwarded to a credit reference bureau could dispute and/or ask for rectification of the allegedly erroneous information. It is therefore important to appreciate that until a customer has pursued the procedure enunciated under regulation 20, a claim for damages or loss of earnings arising out of a misstep or erroneous information by the bank should be addressed through the provided mechanism. In this appeal, it was the appellant’s case that he became aware of the negative listing on or about 25th July 2012 when his loan application was declined by the Kenya Commercial Bank. Despite the appellant being aware of the negative listing, he did not pursue his rights under regulation 20 and instead went ahead to apply for another loan in 2013, which was also declined. Prior to this second loan application, the appellant knew and ought to have taken steps to correct what he deemed an erroneous listing, as there was a clear statutory avenue for resolving the issue. We also note that he only demanded the statements of account from the respondent on 20th October 2013, following Kenya Commercial Bank's rejection of the second loan application on 16th September 2013. In our view, therefore, if there is any injury that the respondent caused the appellant, the same can only be limited to what transpired up to 25th July 2012 when the loan was declined and the consequences of that refusal as a result of the unprocedural negative listing. The period following that cannot be compensated, as the appellant was aware of the negative listing but failed to pursue the statutory procedure of resolving the dispute. 29.Having found that the respondent breached its statutory duty by listing the appellant without the requisite notification, the question that next arises is the appropriate relief. In disputes touching on statutory compliance, the available remedies are guided by the twin objectives of vindicating the violated right and, so far as possible, restoring the aggrieved party to the position they would have occupied had the breach not occurred, while avoiding unjust enrichment. In the circumstances of the dispute at hand, a declaratory relief is apt as the dispute turns on the legality of administrative action and statutory compliance. We are satisfied that a declaration should issue that the respondent’s act of submitting adverse credit information to a credit reference bureau without notifying the appellant was unlawful, procedurally unfair, and in contravention of regulation 28 of the Banking (Credit Reference Bureau) Regulations, 2008, as well as Article 47 of the Constitution. Upon issuing such a declaration, we must not stop there. We must consequently make an order for its expungement, which we hereby do. In the circumstances of this case, the adverse listing, having been tainted by non-compliance with mandatory notification requirements, cannot be allowed to stand. We therefore order that the respondent do forthwith procure the expungement of the appellant’s adverse credit information from all licensed credit reference bureaus to which it was submitted, and confirm such expungement to the appellant in writing within sixty (60) days of the date hereof. 30.As to the claim for general damages, the same are not awarded as a matter of course for every statutory breach. The claimant must demonstrate actual injury, such as reputational harm, denial of credit, or financial inconvenience, directly attributable to the unlawful listing. Nonetheless, where a wrongful listing results in embarrassment, inconvenience, or impairment of economic activity, an award of general damages is justified. In the present case, the appellant led uncontroverted evidence that the unlawful listing occasioned denial of credit facilities and considerable inconvenience in his commercial dealings. However, considering, as we have found, that there was indeed an outstanding balance, there is no demonstration that the action taken by the respondent in furnishing the information to the bureaus was in bad faith. With that in mind, we consider that a nominal award in the sum of Kshs. 200, 000 is reasonable and proportionate. 31.On the appellant’s claim for special damages, we reiterate that the principle is that such damages must be specifically pleaded and strictly proved. In the absence of cogent documentary evidence demonstrating quantifiable pecuniary loss directly resulting from the unlawful listing, we find no fault with the learned Judge’s decision not to award special damages. 32.Consequently, we allow the appeal on the following terms:i.A declaration be and is hereby issued that the respondent’s submission of adverse credit information to a credit reference bureau without notifying the appellant was unprocedural and unlawful;ii.An order directing the expungement of the appellant’s adverse credit information from all relevant credit reference bureaus within sixty (60) days;iii.A nominal award of general damages in the sum of Kshs. 200,000 to the appellant.iv.Interest on (iii) above at court rates from the date of this judgment until payment in full;v.Costs of the appeal to the appellant. DATED AND DELIVERED AT NAIROBI THIS 15TH DAY OF MAY 2026.S. GATEMBU KAIRU, FCIArb, C.Arb.................................JUDGE OF APPEALP. NYAMWEYA................................JUDGE OF APPEALW. KORIR................................JUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR