https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8729

Wackay & another v Co-operative Bank of Kenya Ltd (Civil Appeal E154 of 2024) [2026] KEHC 8729 (KLR) (19 June 2026) (Judgment) Neutral citation: [2026] KEHC 8729 (KLR) Republic of Kenya In the High Court at Kisumu Civil Appeal E154 of 2024 LM Wachira, J June 19, 2026 Between Stephen Lukao Wackay 1st Appellant Oliver Aluvale Wackay 2nd Appellant and Co-Operative Bank of Kenya Limited Respondent (Being a first appeal arising from the judgment and Decree of Hon. V. Adhiambo delivered on 23rd July, 2024 in the original Kisumu CMCC No. 131 of 2019) Judgment Background 1.The appeal arises from the judgment and decree of the Chief Magistrate’s Court at Kisumu delivered on 23rd July, 2024 in Kisumu CMCC No. 131 of 2019, where the learned trial Magistrate dismissed the Plaintiff’s suit on the ground that the particulars of the plaint had not been established to the required standards. 2.The matter related to funds allegedly deposited in an alleged fixed account with the Respondents, but which funds were allegedly withdrawn without instructions from the authorized signatories to the account. 3.The Appellant/Plaintiff being dissatisfied with the Judgment, filed the instant appeal, seeking to set aside the lower court decision, and in its place pleading to have the suit in the lower court allowed as was prayed. Trial Court Evidence 4.The Appellant/Plaintiff had filed a plaint dated 18th March, 2019 together with two statements done by Oliver Aluvale and Stephen Lukalo. The Appellant’s claim before the lower court was for recovery of a sum of Kshs.500,000/- that was allegedly deposited in account number 0110913780500 with the Defendant Bank in the joint names of the two Plaintiffs and one Beatrice Aluvale from Mwalimu Cooperative Sacco. The Appellants claimed that the account was a fixed account and was to run for a period of ten (ten) years. 5.The Appellant’s case is that after the deposit, they did not withdraw the money until 2018 when they went back to the bank to get money and found that the account had a nil balance. The claimed that they asked for bank statements from the Defendant and the Defendant declined to avail any statements but when they got a court order, the Defendant availed statements that were not complete in that the statements of year 2009, 2010, 2011 and 2012 were missing. 6.The Appellant claimed that the amount of Kshs.500,000/- deposited by Mwalimu Cooperative Sacco was fraudulently withdrawn because none of the signatories had withdrawn the said amount and sought a refund of the said amount together with interest that had accrued in the 10 years the amount was in the bank. 7.The Defendant respondent on its part denied the claim and in particular that Kshs.500,000/- was credited to the account by Mwalimu Cooperative Sacco. They denied the allegation that the money that was withdrawn from the account was withdrawn without the knowledge of the Appellants. 8.The defense case was that even when they were asked for the bank statements, they supplied the same and the only reason that they delayed in supplying was that the Appellants had cited the wrong account number. 9.The Court having dismissed the Plaintiff’s case for lack of sufficient evidence, the Plaintiff/Appellant filed a Memorandum of Appeal with seven [7] grounds of appeal, as follows:-a.The Learned Magistrate erred in holding that there was no evidence of deposit of Kshs.500,000/- in account number 01109013780500 held at the Respondent Bank yet the issue was not disputed and was not even among the issues identified for determination by the Magistrate herself.b.The Learned Magistrate misdirected herself in holding that there was no evidence of payment of Kshs.500,000 to the subject account yet there was evidence of withdrawal from the account and the dispute was about unauthorized withdrawals from the bank account and not about a deposit received or not received in the bank account.c.The Learned Magistrate misdirected herself on making the case a case of depositing or non-depositing as opposed to the case of wrongful withdrawal which was before her with evidence. The Learned Magistrate made a judgment for her own case.d.The Learned Magistrate fundamentally erred in holding that the failure by the respondent Bank to provide the statement of account for a specific period does not automatically lead to proof of allegations made by the Plaintiff. This is despite the Magistrate having acknowledged that the Respondent had been compelled by the Court in a separate suit to provide the statements.e.The Learned Magistrate fundamentally erred in holding that the failure by the respondent Bank to provide the statement of account for a specific period was excusable as the Bank account was dormant during the said period yet the Bank itself in its defense averred that the failure to provide the relevant statement was because the account number was incorrect.f.The Learned Magistrate erred by holding that that the Appellants had not proved that the said amount was fraudulently withdrawn.g.The Learned Magistrate erred by dismissing the suit. Analysis and Determination 10.This Court sitting as the first appellate court, is obligated to reconsider and re-evaluate the entire evidence on record and draw its own conclusions, as if it was a court of first instance, bearing in mind that it did not have the advantage of seeing or hearing the witnesses testify. 11.This jurisdiction on appeal has been succinctly stated by the Court of Appeal in Selle & Another vs Associated Motor Boat Co. Ltd [1968] EA 123, where the Court held that an appellate court is obligated to reconsider the evidence, evaluate it afresh, and draw its own conclusions, taking into consideration the fact that it did not see or hear the witnesses. In the above case, the court held as follows, “This court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.” 12.The Court of Appeal echoed the same principles in Peters v Sunday Post Ltd [1958] EA 424, stating that: “An appellate court is not bound to follow the trial court’s findings of fact if it appears that the court failed to take into account particular circumstances or probabilities, or if the decision is plainly wrong.” 13.I will therefore proceed and re-examine the pleadings herein, the evidence adduced at trial and the decision of the learned Magistrate to determine whether the Appellant discharged the burden of proof so as to be entitled to the orders that were sought. Issues for Determination 14.I have considered the evidence adduced at the trial court, the grounds of Appeal and the submissions by the parties. I will frame the following as what I see as the issues for determination in the instant Appeal:-a.Whether an account was opened by the Appellants with the Respondent bank and Kshs.500,000/- deposited therein by Mwalimu Cooperative Sacco.b.Whether the burden of proof shifted to the Respondent bank to proof that indeed the money had been deposited in the said account.c.Whether the said amount was fraudulently withdrawn from the said account without the permission or authority of the Appellants. Whether an account was opened by the Appellants with the Respondent bank and Kshs.500,000/- deposited therein by Mwalimu Cooperative Sacco. 15.Evidence on record is that the Appellants herein together with one Beatrice Aluvale opened a joint account with the respondent with a signing mandate of any two. The account opening forms were produced in court and are part of the record of Appeal. Although there appears to be a mix up on account numbers, it is clear from the cross examination of PW1 that the account number opened and where the Kshs.500,000/- was allegedly deposited is A/C 0110913780500 as opposed to 01109013780500. I find that indeed a customer/Bank relationship existed between the Appellants and the Respondent herein. 16.On the question as to whether Kshs.500,000/- was deposited in the account by Mwalimu Cooperative Sacco, PW1 told court that they were informed by Mwalimu Sacco that they had deposited Kshs.500,000/- into the account. PW2 also told court that they were informed by their sister that the Teachers’ Service Commission had paid some money. I have considered this evidence. The testimony of the two witnesses is actually hearsay evidence that is not supported by any direct evidence or documentary evidence. 17.PW1 tells court that they got a letter from Mwalimu Sacco indicating that the amount had been credited to the account. This letter was never produced in court and therefore the evidence by PW1 remains hearsay without any corroboration by any other evidence. 18.Further, if any money was processed and deposited by Mwalimu Cooperative Sacco, there must be paper trail on processing the money and there must be a deposit slip or RTGS slip to support the deposit or movement of money from the Sacco to the Account. The said deposit slip was not produced in court as evidenced in the proceedings taken before the trial Magistrate. Indeed, the Appellant did not deem it fit to call a representative of the Sacco as a witness to confirm to the court that the Sacco had processed the payment and credited the money to the bank account belonging to the Appellants. 19.My finding is that the Appellants did not tender evidence to demonstrate to this court that any money was deposited in their account in the Respondent bank and therefore the learned trial Magistrate did not err in finding that there was no proof of deposit of the money. 20.And tied to the above, the Appellants have submitted that the trial Magistrate had erred in converting the matter to a case of whether there was a deposit whereas the case was about whether there were unauthorized withdrawals. I have considered this submission and I will take the following view; that for there to be a withdrawal, there must have been a deposit. The Appellant needed to establish the existence of funds in the account, so that the funds are capable of being withdrawn. Otherwise, one cannot withdraw that which is not available. 21.The Appellants appear to submit that the court should have assumed that there were funds in the account and only decide on the withdrawals. To me this would have been erroneous because the court ought to consider the entire circumstances before making a finding, and which the court did. Therefore, my finding is that the trial Magistrate did not err in first determining the question as to whether there was a deposit. 22.The Appellants also raised the issue of not having been supplied with the bank statements for the period of 2009, 2010, 2011 and 2012. Again, I have considered the evidence adduced by both the Appellants and respondents in respect of this. The Respondents have submitted that there was no activity in the account and therefore the statements were blank. I have considered the copies of bank statements filed by both appellants and Respondents and clearly there were no transactions during that period. And not only the period in question, the account was only active in 2008 and the rest of the entries are only bank charges that are running throughout the period. I find that the Respondent had discharged it’s duty by providing the statements that they held in respect of the account held by the respondents. Whether the burden of proof shifted to the Respondent bank to proof that indeed the money had been deposited in the said account. 23.The onus and burden on proof in law rests with the party who alleges, based on the maxim “he who alleges must proof”. The court in Evans Nyakwana vs.Cleophas Bwana Ongaro (2015) eKLR summarized the burden of proof in the following terms:-“As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107(i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden...is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. ……the appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given by either side." 24.In the instance case, it is the Appellants who sought a refund of Kshs.500,000/- which they allege had been deposited by Mwalimu Sacco into an account held with the Respondents. It is them who alleged that there was a deposit, it is them who needed the aid of the law and it is them who would fail if no evidence is adduced. The burden of proof therefore lay with them to ensure that their case was supported and proved on a balance of probabilities, being a civil matter. 25.The Appellants needed to demonstrate to the court that Kshs.500,000.00/- was deposited into their account by Mwalimu Cooperative Sacco and demonstrate whether it was a cheque deposit or a direct transfer and at least have documentation in support of the deposit. This evidence was missing and it was NOT the duty of the Respondent to avail it. 26.In the case of Raila Amolo Odinga & another V IEBC & 2 Others, (2017) eKLR, (Raila 2) the Supreme Court had an opportunity to discuss and differentiate between the legal and evidentiary burden of proof and stated as follows:-“Though the legal and evidential burden of establishing the facts and contentions which will support a party's case is static and remains constant through a trial with the Plaintiff, however, depending on the effectiveness with which he or she discharges this, the evidential burden keeps shifting and its position at any time is determined by answering the question as to who would lose if no further evidence were introduced. It follows therefore that once the Court is satisfied that the petitioner has adduced sufficient evidence to warrant impugning an election, if not controverted, then the evidentiary burden shifts to the respondent, in most cases the electoral body, to adduce evidence rebutting that assertion and demonstrating that there was compliance with the law or, if the ground is one of irregularities, that they did not affect the results of the election. In other words, while the petitioner bears an evidentiary burden to adduce 'factual' evidence to prove his/her allegations of breach, then the burden shifts and it behooves the respondent to adduce evidence to prove compliance with the law." 27.My finding is that at no point did the evidential burden shift to the Respondent to prove anything. The position would have been different had the Appellants been able to prove that indeed there were funds in the account and the funds had been withdrawn contrary to the withdrawal instructions given at the account opening stage. Whether the said amount was fraudulently withdrawn from the said account without the permission or authority of the Appellants. 28.I have already found that there was no proof of the deposit therefore there is no proof of existence of the money in the account held by the Appellants and Beatrice Aluvale, so that the question of fraudulent withdrawal may not arise. 29.In any event, for such a claim, there needs to be specific particulars of how the fraud was perpetrated. There needs to be pleaded the particulars of the fraud so that the court is properly directed on the specific areas of commission that need to be established. I found this missing from the pleadings and I have had to sift through the entire statements to check on any particular entry that could be described as fraudulent 30.The statements of the account were produced in court and are attached to the record of Appeal. The alleged fraudulent withdrawals are not reflected in any of the statements. For the Appellant to establish such withdrawals which have been disputed by the Respondent, the Appellant needed a forensic audit of the account in question. This would have dug deeper into the question of whether the Respondent is concealing the transactions for the duration in question in 2009 and 2010. 31.The forensic audit was not done and there is no report or evidence whatsoever in court to show that any funds were withdrawn from the account or even whether they were available in the first place. In the absence of such proof, the Bank's statement of accounts as produced in court are deemed to be conclusive proof of the status of the Appellants' account as provided in Section 176 of the Evidence Act, which reads; “Subject to this chapter, a copy of any entry in a banker's book shall in all legal proceedings be received as prima facie evidence of such entry, and of all matters, transactions and accounts therein recorded.” 32.This position was reiterated in the Court of Appeal in Ng'ayo Traders Ltd. vs. Savings & Loan (K) Ltd Civil Application No. Nai. 165 of 2005 where the Court stated “Under section 176 of the Evidence Act a copy of an entry in the bank book is prima facie evidence of such entry and of matters, transactions and accounts thereon. 33.I will in the instant case be guided by the statements of account produced in court by the parties and find that there is no evidence of the deposit and there is no evidence of fraudulent withdrawals and therefore the trial Magistrate did not err in dismissing the Appellants’ claim against the respondent. 34.The upshot of the matter is that the Appellants Appeal herein lacks merit and the same is dismissed. The Respondents are awarded the cost of Appeal. Orders accordingly. JUDGMENT DELIVERED, DATED AND SIGNED VIRTUALLY AT NAIROBI THIS 19TH DAY OF JUNE, 2026............................L. M. WACHIRAJUDGEIn the Presence of:Lindsy – court assistantMR Muganda -for the Appellant.Miss Piwe -for the Respondent.