[2022] KEHC 15841 (KLR)

Platinum Credit Ltd v Muthuri (Civil Appeal E437 of 2021) [2022] KEHC 15841 (KLR) (Civ) (2 December 2022) (Judgment)

Neutral citation: [2022] KEHC 15841 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E437 of 2021

JK Sergon, J

December 2, 2022

Between

Platinum Credit Ltd

Appellant

and

Ruth Nkirote Muthuri

Respondent

(Being an appeal against the judgment and decree delivered by A.M. Obura (Mrs.) (Chief Magistrate) on 2nd July, 2021 in Milimani CMCC no. 5104 of 2017))

Judgment

1. Ruth Nkirote Muthuri, the respondent herein, filed a suit against the appellant vide the plaint dated July 17, 2017 and amended on October 30, 2019 and sought for both general and special damages, and an order directing the appellant to return the log book in respect to the motor vehicle registration number KBV 906S (“the subject motor vehicle”) to the respondent, plus costs of the suit and interest thereon.

2. The respondent pleaded in the amended plaint that the appellant was at all material times engaged in the business of providing credit to its customers.

3. The respondent pleaded in the amended plaint that she borrowed the sum of Kshs 150,000/= from the appellant on August 8, 2016 and which sum was to be repaid within a period of 12 months in monthly instalments of Kshs 21,100/ and that she provided the subject motor vehicle as security for the loan.

4. The respondent further pleaded in the amended plaint that despite her possessing proof of clearance of the loan amount in full, the appellant sent auctioneers to confiscate the subject motor vehicle on June 28, 2017 thereby causing her to incur car hire expenses to enable her undertake her business, amounting to the sum of Kshs 210,000/=.

5. It was pleaded in the amended plaint that the appellant has not returned the log book in respect to the subject motor vehicle.

6. It was further pleaded in the amended plaint that the appellant further maliciously reported her to the Credit Reference Bureau (CRB) and that she was blacklisted as a result.

7. Upon service of summons, the appellant entered appearance and filed its statement of defence and counterclaim on December 11, 2019 to deny the averments made in the amended plaint.

8. In the counterclaim, the appellant sought for damages for an alleged breach of the agreement between itself and the respondent in respect to the loan facility.

9. At the formal hearing of the suit, the respondent testified whereas the appellant called one (1) witness.

10. Upon close of submissions, the trial court in its judgment awarded the respondent general damages in the sum of Kshs 1,000,000/= and special damages in the sum of Kshs 210,000/= plus costs of the suit and interest thereon. The trial court consequently dismissed the counterclaim with costs.

11. The appellant has sought to challenge the aforementioned decision by way of the present appeal. The appellant has therefore put forward the following grounds of appeal vide its memorandum of appeal dated July 22, 2021:i.That the learned trial magistrate erred in law and in fact in awarding general damages to the respondent amounting to Kshs 1,000,000/=.ii.That the quantum of general damages is excessive and an erroneous estimate of the damages that may be awarded to the respondent due regard had to the circumstances of the case before the subordinate court and the weight of precedents in similar circumstances.iii.That the learned trial magistrate erred in law and fact in relying on extraneous evidence in arriving at the decision on the general damages.iv.That the learned trial magistrate erred in law and in fact by failing to analyze and appreciate the appellant’s overwhelming evidence and submissions.v.That the learned trial magistrate exceeded her mandate by purporting to speculate on the evidence of the defendant.vi.That the learned trial magistrate wrongly applied the applicable principles of law in arriving at the judgment of the suit before the court.

12. This court directed the parties to file written submissions on the appeal.

13. The appellant contends that before opting to file the suit, the respondent ought to have followed the procedure for challenging her blacklisting with CRB in the manner provided for under theCRB Regulations, but did not.

14. For the foregoing reason, the appellant urges this court to set aside the award in the sum of Kshs 1,000,000/= made on general damages and cites the case of Kennedy Odhiambo Nyagudi v Central Bank of Kenya & 3 others [2013] eKLR where the court held that:“…the regulations provide for relief to any customer who is aggrieved by wrong and erroneous information. The petitioner’s grievances fall within these provisions and he is entitled to invoke the statutory procedure provided. It is for this reason, I have restrained myself from commenting on the facts of the petitioner’s case as he is entitled to invoke these provisions.”

15. The appellant submits that in the alternative, the award made on general damages be revised downwards to the sum of Kshs 200,000/= in the absence of any evidence to indicate damage suffered by the respondent, and relies on the case of Jedidah Wanjiru Wairimu v Simon Karogha Njoroge & 3 others [2021] eKLR in which the court awarded a similar sum for the erroneous listing of a plaintiff with CRB.

16. In her response submissions, the respondent contends that the question of the CRB Regulations was not raised at the trial and cannot therefore be raised by the appellant as a new subject for consideration on appeal.

17. The respondent further contends that notwithstanding the argument by the appellant that she bypassed the provisions of the CRB Regulations in challenging her wrong listing, the appellant has not denied culpability and hence the trial court acted correctly in finding it liable, citing the case of Jedidah Wanjiru Wairimu v Simon Karogha Njoroge & 3 others [2021] eKLR where the court reasoned thus:“Though the plaintiff bypassed the statutory regulations this does not absorb the defendants from their own negligence and recklessness, and therefore culpability in different ways, against each.”

18. On the general damages awarded, it is the submission by the respondent that the trial court made a reasonable award in line with awards previously made and refers this court to the case of Eunice Nganga v Higher Education Loans Board & 2 others [2021] eKLR and the case of Samson Njoka Mwenda & another v CFC Stanbic Bank Limited & another [2019] eKLR in which the respective courts awarded the sums of Kshs 10,000,000/= and Kshs 1,000,000/= as a result of wrongful listing.

19. Ultimately, the respondent supports the decision by the trial court and therefore urges this court to dismiss the appeal with costs.

20. I have considered the contending submissions on appeal and the authorities relied upon. I have also re-evaluated the evidence which the trial court had the opportunity to look at.

21. It is clear that the appeal fundamentally lies against quantum, specifically the damages under the head of general damages resulting from the alleged malicious and wrongful listing of the respondent with CRB, since it is apparent from the record that the issue of repayment of the loan was addressed by the parties; considered and determined conclusively by the trial court. I will therefore address the six (6) grounds of appeal contemporaneously under that head.

22. In her submissions before the trial court, the respondent proposed the sum of Kshs 10,000,000/= as constituting a suitable award under that head and cited the case of Eunice Nganga v Higher Education Loans Board & 2 others [2021] eKLR and the case of Samson Njoka Mwenda & another v CFC Stanbic Bank Limited & another [2019] eKLR also cited in her submissions on appeal and which I have already set out hereinabove.

23. On its part, the appellant submitted before the trial court that the respondent was not entitled to any award under that head in the absence of proof that it is the appellant who forwarded her name to CRB for listing as a loan defaulter.

24. The learned trial magistrate; upon weighing and taking into consideration the rival positions; reasoned that the respondent had proved that the listing with CRB resulted from an outstanding loan in the sum of Kshs.27,400,000/= due to the appellant and therefore awarded the sum of Kshs 1,000,000/= under that head, upon relying on the case of Samson Njoka Mwenda & another (supra) where a similar sum was awarded.

25. Upon my re-examination of the record, it is apparent first and foremost that the issue on whether the respondent followed the procedure for challenging her blacklisting with CRB in the manner provided for under the CRB Regulations (specifically regulation 35 (5) to (14) which in summary provide that a customer who believes the information contained in the CRB database to be inaccurate or erroneous or outdated may notify CRB of the same in writing) was not raised before the trial court for consideration. I therefore agree with the submission by the respondent that this constitutes a new issue on appeal and I will therefore not address my mind on the same.

26. I however wish to make mention that even if the position was so, there is nothing to indicate that the respondent was precluded by law to file a suit on the issue of wrong listing. In finding so, I am supported by the case of Jedidah Wanjiru Wairimu v Simon Karogha Njoroge & 3 others [2021] eKLR cited in the submissions by the respondent and where the court determined that the omission by the plaintiff in following the procedure set out in the CRB Regulations did not take away the culpability of the defendants in that case, and the court went ahead to award damages arising out of the wrongful listing.

27. Upon my consideration of the authorities cited by the parties on the subject of general damages, I note that the awards have been made in that respect vary in amounts.

28. I also note that in making her award, the learned trial magistrate supported her decision with a recent and relevant authority.

29. In view of the foregoing circumstances, I find that the award made by the learned trial magistrate is reasonable in the circumstances and I see no reason to interfere with it.

30. On the subject of consideration of the submissions and authorities cited by the appellant, upon my perusal of the impugned judgment, I find that the learned trial magistrate did not error.

31. The upshot therefore is that the appeal is hereby dismissed for lack of merit, with costs being awarded to the respondent.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 2ND DAY OF DECEMBER, 2022. ………….…………….JK SERGONJUDGEIn the presence of:……………………………. for the appellant……………………………. for the respondent