' 1. This suit was commenced by way of the Plaint dated 24/05/2019 and filed through Messrs Z.K. Yego Law Offices. The prayers sought by the Plaintiffs are premised as follows:
a) An order that the Defendants do reinstate bank Account No. 096-271770881/1106788699 and restore the sum of Kshs. 24,069.373.60/= illegally and fraudulently withdrawn from the said account on 14/02/2019.
b) Interest at Court rates on (a) above from 14/02/2019 until payment in full.
c) Costs of this suit.
d) Any other relief this Court may deem fit and just to grant.
2. In the Plaint, it was pleaded that the Plaintiffs are the administrators of the estate of the late Nathaniel Kibitok Sieley (deceased) who died on 19/03/2013, having obtained the Grant of Letters of Administration on 28/09/2018, that the deceased held the said bank account with the 1st Defendant at its Nandi Hills Branch, and that upon his death, the Plaintiffs filed Eldoret High Court Succession No. 8 of 2018 in which they obtained the said Grant. It was further pleaded that in a bid to discharge their duties as Administrators, the Plaintiffs requested for certified copies of the bank account statements vide the letter dated 22/02/2019, and the 2nd Defendant requested that the Plaintiffs do furnish a Court order for that purpose, upon which the Defendants obtained a Court order on 20/03/2019 directing the 2nd Defendant to furnish them with such statements, and that upon service thereof, the Defendants eventually furnished them with the statements for the period 1/01/2013 to 1/04/2019.
3. It was further pleaded that the statements revealed that the account had a balance of Kshs 23,591,986.25 as at 19/03/2013 when the deceased died, subsequently there were additional credits until 14/02/2019 when the account balance stood at Kshs 24,069.373.60/-. It was also stated that on 14/02/2019, the account was closed online and the entire balance paid out to undisclosed persons, and that the closure of the bank account and payment of the balance to undisclosed persons is fraudulent and illegal. The particulars of the Defendants’ fraud and illegality were then listed as intermeddling with the estate of the deceased, facilitating payment of the account balance to shadowy figures who did not hold a Certificate of Confirmation of Grant, stage-managing online closure of the account by undisclosed persons, facilitating illegal and fraudulent withdrawal of funds in the account, defrauding the estate of the deceased, facilitating payment of the said balance without a Certificate of Confirmation of Grant, making payment to strangers on the basis of a fake Grant, failing to verify the authenticity thereof and collaborating with fraudsters to withdraw funds from the Account.
4. The Defendants, through Messrs Manani, Lilan, Mwetich & Co. Advocates filed the joint Statement of Defence dated 18/06/2019. The Defendants stated that before this action, they had been put on notice that the Administrators of the estate of the deceased was one Luke Kimutai, that if the Plaintiffs filed Eldoret High Court Succession No. 8 of 2018, then the same was filed after the 1st Defendant had already been served with a Grant of Letters of Administration over the same estate in earlier proceedings by the said Luka Kimutai, namely, Nakuru High Court Succession Cause No. 3 of 2013, which the Defendants had acted upon after the High Court of Kenya in Nakuru confirmed the authenticity thereof to the Defendants. It was stated further that if the funds were withdrawn from the bank account in question, then the same was withdrawn by a person holding himself out as holding a valid Grant of representation to the estate, which was authenticated by the Court, and that the Defendants are therefore not complicit to the fraud alleged. It was averred that in the circumstances, the Defendants could not reinstate the account, and that if the Grant is shown to have had any defect, then the Defendants are entitled to full indemnity from the said Luke Kimutai, whom they would be seeking leave to join as a third party to the suit.
5. In the Plaintiffs’ Reply to Defence dated 21/06/2019, it was averred that the Plaintiffs were the lawful Administrators of the estate of the deceased, and they had no knowledge of the Grant obtained by the alleged Luke Kimutai or of the proceedings in Nakuru High Court Succession Cause No. 3 of 2013. It was stated further that the Plaintiffs’ family was well known to the 1st Defendant who, together with a number of staff members even attended the burial service of the deceased in March 2013.
6. Pursuant to the Defendants’ Application, by the orders made on 10/02/2020 by H. Omondi J (as she then was), leave was granted to the Defendants to join the said Luke Kimutai as a third party in the suit. The said Luke Kimutai was then joined as aforesaid. Although it was said by the Defendants’ Counsel that service upon the said Luke Mutai was, with leave of the Court, effected by way of substituted service, he never entered Appearance nor filed a Statement of Defence.
7. When the matter came up for trial on 16/03/2021, it transpired that the Defendant had filed a second Application seeking leave to further join the Hon. Attorney General in the suit as a 2nd Third Party, but which Application the Defendant had delayed to prosecute. In the circumstances, the Application was held in abeyance and in the meantime, the Plaintiff’s first witness was allowed to testify, which he did as PW1. The Application to join the Hon. Attorney General was however later revisited before PW2 testified, and was eventually allowed on 13/03/2021 by H. Omondi J (as she then was). Accordingly, the Hon. Attorney General was joined as the 2nd Third Party.
8. The Hon. Attorney General, having been eventually served, entered appearance as the 2nd Third Party and filed the Statement of Defence dated 7/03/2022. He generally denied liability.
9. When the matter came up 18/03/2024 for hearing of the testimony of PW2, by which time I had taken over hearing of the case, H. Omondi J (as she then was) having been since elevated to the Court of Appeal, it transpired that service upon the 1st Third Party, the alleged Luke Kimutai, may not have been satisfactorily done. Since PW2, the Deputy Registrar in the High Court of Kenya at Nakuru, was already in Court having been served with Witness Summons, after conferring with the parties, and to also save on further delays, I directed that, recognizing the witness’ busy schedule as a Judicial Officer, her testimony would be taken nonetheless, and once service upon the 1st Third Party is established to have been satisfactorily served, and comes on record, he would then be granted liberty to apply to recall the witnesses for cross-examination. The testimony of PW2 was thus taken as aforesaid, on 18/03/2024.
10. I will now recite the testimonies of the respective testimonies.
11. PW1 was the 2nd Plaintiff, Andrew Kipkorir Bitok Sieley, who as aforesaid, testified before H. Omondi J (as she then was) on 16/03/2021. Led by his Counsel, Mr. Yego, he adopted his Statement and stated that his father, the deceased, who died in 2013 held the said account at the 1st Defendant which he had operated for over 40 years, and had a tea farm of about 70-80 acres in Nandi Hills. He stated that they were yet to finalize the proceedings in Eldoret High Court Succession Cause No. 8 of 2016 as their Lawyer passed on. He then reiterated matters stated in the Plaint, including their unsuccessful requests to the Defendants to supply them with bank statements for the account, the Defendants eventually supplying the same pursuant to a Court order, discovery that the account had been closed with a zero balance, and discovery that transactions had been made in the account after the death of the deceased and funds therein released to a stranger. He testified further that he had interacted with the 2nd Defendant, the Manager of the Nandi Hills Branch of the 1st Defendant, that Nandi Hills is a small town and as such everyone knew almost each other, and that the new Manager who came later was informed that the family of the deceased was one of the Branch’s biggest clients. He denied any knowledge of the alleged Luke Kimutai, and then produced the documents contained in the Defendants’ bundle. Under cross-examination by Mr. Maina, Counsel for the Defendants, he reiterated that no one in their family had any knowledge of the alleged Luke Kimutai. About the Bank Manager knowing him, he agreed that he did not have any evidence to support the allegation.
12. PW2 was Hon. Christine Menya, the Deputy Registrar at High Court of Kenya at Nakuru, who testified before me as aforesaid on 18/03/2024 having been served with Witness Summons. She produced two Court files, both bearing the similar description, Nakuru High Court Succession Cause No. 3 of 2013, the first one relating to the Estate of Ayub Wandundo Kimani, and in which the Petitioner is one Grace Wambui Kimani, and the second one relating to the Estate of Nathaniel Kibitok Sieley, allegedly the deceased herein, in which the Petitioner is not named. According to her, the one relating to the Estate of Ayub Wandundo Kimani, was the genuine one as it is backed by a Court Movement Register, and in which the Grant was confirmed on 27/07/2017 by Hon. Maureen Odero J. Regarding the file relating to the Estate of Nathaniel Kibitok Sieley, she stated that upon investigations, they discovered it to be a fake file and there is correspondence to that effect. She testified that it contains a purported Grant confirmed on 22/07/2017 which is fake as it does not exist as confirmed by the letter dated 9/03/2021, and that even the Form P&A 41 purportedly signed by Hon. Wendo J contained therein is also fake. Under cross-examination by Mr. Yego, she stated that to her knowledge, there has not seen any forensic investigations on the matter. She stated that the fake Grant is dated 22/7/2017 and agreed that if the said date was a Saturday, then Courts do not work on Saturdays. She confirmed that it is not possible to have 2 files with the same case number but she could not explain how there came to be such 2 files. She agreed that according to the fake file, the beneficiaries of the KCB A/C was one Luke Kimutai.
13. When referred to the letter dated 27/11/2018 from the Defendants seeking for authentication of the Certificate of Confirmation of Grant issued in the fake file, she stated that the letter was responded to by the letter dated 3/12/2018 in which the Deputy Registrar stated that the bank details (account number) were erroneously captured and that the Administrator had been advised to apply for rectification thereof, and that the letter does not seem to have responded on whether the Grant was genuine. She stated further stated to her knowledge, there was no rectification of the Grant made. She added that the fake file has 2 separate Grants both bearing the date of 22/7/2017, and that the signature of Hon. Maureen Odero J is clearly fake. She stated further that the law firm of Ashitiva & Co. Advocates by its letter dated 2/05/2019, sought confirmation on whether what was issued through the Grant reflected the correct position, and that the Court responded by the letter dated 1/7/2021 and stated that the Grant was fake. She stated also that there was a response letter by the Attorney General dated 9/07/2021, and that the Attorney General had written a letter dated 22/04/2021 seeking for instructions on the Succession Cause No. 3 of 2013.
14. She also stated that the fake file does not contain a Petition or an Application for Confirmation of Grant. She denied that the Judiciary was complicit in any way, and also produced the two Court files bearing the same case number but relating to two separate estates. Under cross-examination by Ms. Jeruto, Counsel holding brief for Mr. Mwetich for the Defendants, she agreed that the Deputy Registrar, by the letter dated 27/11/2018 addressed to the Defendants, confirmed that the Grant presented was authentic and originated from the Court, and there is also the letter dated 14/01/2019, with a Court seal and also the letter dated 3/12/2018 correcting the wrong bank details captured in the fake Grant. She agreed that with the Court authenticating the fake Grant, the Defendants may not be blamed for believing and acting on it. Under cross-examination by Mr. Kwame, State Counsel appearing for the Hon. Attorney General, she stated that the fake file does not appear in the Court’s Movement Register, nor does it contain a letter from the Chief or a Gazette Notice, and that under these circumstances, it is not possible to identify the person who filed it, and also that there is no indication that the file was ever placed before the Judge for any action. Regarding Rectification of a Grant, she stated that it is in practice, done by way of a formal Application, not a letter from the Court, and in the case of the fake file, there was no such Application. She agreed that the Court did not ask for a copy of the Petition or Gazette Notice and agreed further, that had it done so, the fraud may have been discovered, but she however denied that the Court was complicit. Under re-examination by Mr. Yego, she stated that the letters from the 1st Defendant, dated 27/11/2018 and 20/12/2018, were both from the Defendants’ Nakuru Branch.
15. The Plaintiffs then closed their case, and at this point, Mr. Kwame, State Counsel informed the Court he, too, had intended to call a representative from the same High Court at Nakuru but since the Deputy Registrar of the same Court had already testified as PW2, he would not be calling his own separate witness. Upon his request therefore, the Court adopted the testimony of PW2 as representing also the 2nd Third Party’s, the Hon. Attorney General. The Defence case then commenced on 16/07/2024.
16. DW1, Hillary Kipkoech Sitienei testified before me on the said 16/07/2024 and on 22/10/2024. He stated that he used to be the Branch Manager of the 1st Defendant at its Nandi Hills Branch but had since proceeded on transfer to Kitale. He then adopted his Supplementary Statement dated 30/7/2021, and there being no objection raised, he also adopted the earlier Statement made by his predecessor, one Reuben Kirui, dated 1/2/2021, as he stated that the latter had already retired from the 1st Defendant’s employment. He testified that regarding the bank account number 1106788699, the 1st Defendant was made aware of the death of the account-holder and they restricted the account awaiting for an Administrator to be appointed, and that they later received a Grant from the High Court at Nakuru, dated 22/07/2017, indicating that one Luke Kimutai had been appointed as the Administrator and that the same person was listed as being the sole beneficiary. He testified further that as per their procedure, by a letter, they inquired from the Court through the 1st Defendant’s Nakuru Branch for confirmation of the authenticity of the Grant, in response to which they received the letter dated 27/11/2018 from the Court confirming such authenticity. He testified that the letter bore the seal of the Deputy Registrar of the Court but they however noticed that in the account number indicated in the letter from the Court, one digit was missing and they again inquired from the Court, and the Court again gave confirmation, with the account number now corrected, and that they then, on the basis of the letter, disbursed the money.
17. He further stated that the deceased account holder was Nathaniel Kibitok Sitienei, and that he came later to learn that apparently the High Court at Nakuru has 2 cases with the same number but relating to different/conflicting estates of deceased persons, namely, Estate of Nathaniel Kibitok Sieley and Estate of Ayub Wandundo Kimathi. He urged that the Defendants had no reason to doubt the contents of the letters from Court authenticating the Grant present in the Court file confirmed by the Deputy Registrar as the Defendants would not know whether one of the 2 files is fake, as confirmation of the authenticity thereof was the duty of the Court. He confirmed that the amount disbursed to the alleged Luke Kimutai was Kshs 24,068,093.06, and urged that the Defendants conducted due diligence and cannot be faulted. He then produced the documents contained in the Defendants’ bundle.
18. Under cross-examination by Mr. Yego, he stated that he worked at the 1st Defendant’s Nandi Hills between 2015 and 2019, and agreed that the deceased and his family were the 1st Defendants’ key clients as the deceased was a prominent tea farmer in the area. He however stated that he did not know whether the 1st Defendant’s staff knew the deceased personally or whether the Defendants’ staff delegation attended the burial. He testified that he did not personally know the family but stated that he knew one Andrew Sieley who used to come to the Branch, and whom he then identified as the 2nd Plaintiff seated in Court. He denied that the company known as Eastern & Produce Limited had at any time introduced him to the said Andrew Sieley (2nd Plaintiff) and stated that he only met him when he came to the office, and he agreed that other staff might also have known him. He denied knowing the 1st Plaintiff, Elizabeth Sieley, and reiterated that he only met the 2nd Plaintiff, who used to sometimes come to the office to inquire about the bank account, and who used to tell him that the family was pursuing Succession proceedings. He added that he did not know whether the family of the deceased had other properties in Nakuru, and agreed that it was strange that the Grant was issued from the Nakuru High Court, and not Nandi Hills. He then testified that he got the 2nd Plaintiff’s phone number when he called him at some point when the Defendants were seeking for authentication the Grant, and agreed that this was before they disbursed the funds. He testified that when they received the Grant, he phoned the 2nd Plaintiff about it in late 2018, and that the 2nd Plaintiff’s came with some family members, and they protested about the Grant claiming that they were not aware of it.
19. He stated that demand letters were received after the funds had already been disbursed on 14/2/2019, and the bank account closed on 2/04/2019,. He confirmed that they received a Court order compelling them to supply the bank statements and, on the basis thereof, they released the statements. He denied that their initial refusal to release the statements was a sign of complicity, and urged that they were only observing confidentiality as the family members of the deceased were not parties to the bank account. He agreed that on 17/11/2016, the 2nd Plaintiff deposited a dividend cheque, and again on 17/11/2016, deposited another cheque, and on 18/11/2016, a third payment was made, a salary payment was also made to the account, and that after the death of the deceased, the account was not used to make any payments, and only credits were allowed. He stated further that the alleged Luke Kimutai, the alleged Grantee did not have the surname “Sielei”, and that they did not obtain a letter from the Chief to confirm that Luke Kimutai was indeed a son of deceased by another mother as he had alleged. He also confirmed that they did not obtain a Certificate of Birth to prove that Luke Kimutai was a son of the deceased, and also agreed that he did not have any “Know Your Customer” documents in Court although they had them in their records.
20. He also agreed that he did not have the alleged Luke Kimutai’s phone number nor did he know his location or where he resides, and stated that he only knew him 2 weeks before the disbursement of the funds, but that they had a copy of his national identity card. He testified that “online closure” of a bank account means that the account has been closed by the system, but in this case, it was closed manually by a bank staff effecting the Court order. He confirmed that the bank statement he had produced does not show that any transfers were made to the alleged Luke Kimutai, but urged that this does not mean that no disbursement was made, as the bank records contain evidence thereof, and thus denied that the Statement shows an irregularity. He denied manufacturing the name “Luke Kimutai”, but confirmed that he does not have any acknowledgment from him confirming that he received the money although the bank account used by the alleged Luke Kimutai was also at the 1st Defendant’s branch in Nairobi. He agreed that even after learning of the fraud, they did not freeze the account in Nairobi where the funds were received although they are empowered to restrict or freeze suspicious accounts. He further confirmed his knowledge that the Court Register indicates that the deceased died on 13/03/2013, but that the Succession Cause No. 3 of 2013 was opened on 3/1/2013 when the deceased was still alive. He also agreed that the 1st Defendant’s Nandi Hills branch did not by itself issue any letter inquiring about the authenticity of the Grant, but urged that at the Branch, they used to receive Grants from different Courts, including from the Eldoret Court and they would send letters seeking authenticity.
21. He conceded that the Nakuru High Court file does not indicate the existence of a Petitioner but contended that he could not have known this fact. He further confirmed seeing the letter dated 1/7/2019, from the Nakuru High Court addressed to their Advocates, Ashitiva & Co, wherein the Grant was disowned and described as fake and also that there were other letters to the Attorney General from the estate of the deceased, and that there was indication that the Succession Cause was not registered at that Court. He confirmed that 22/7/2017, the date which the Grant was confirmed was a Saturday, a date on which Courts do not work, and that in the Grant, one digit of the account number was missing, and that he did not have any Amended or Rectified Grant correcting the same nor a formal Application seeking Rectification. He stated that what he did when he noticed the missing digit was that he sent another letter to the Court but in which letter, he agreed, he did not explicitly mention the issue of the missing digit in the account number. He then however insisted that there was an Amended Grant although he had not produced any. He testified that the time when the transaction was made was about the same time that he was on transit or transfer to Kitale where he reported on 15/04/2019. He thus agreed that in February 2019, he could have still been at the Nandi Hills Branch.
22. He denied travelling to Nakuru around that time to collude with the staff at the Nakuru Branch, which is the Branch from which the letters addressed to the Court emanated from. Under cross-examination by State Counsel Mr. Kwame, he agreed that he is the one who received the instructions from the alleged Luke Kimutai. He agreed that the letter from the Nakuru Branch seeking authentication of the Grant was delivered to the Court by the 1st Defendants staff member by the name Anne Otieno, although the 1st Defendant had a panel of Law Firms, and also a Legal Department, that, at times, handled communication of such nature, and that he had nothing to show that he sought advice from the Lawyers. He however insisted that there was nothing wrong with the 1st Defendant’s Nakuru Branch handling the matter, rather than the Nandi Hills Branch in which the Account was held, but conceded that he had nothing to show that the Nandi Hills Branch requested the Nakuru Branch to take up the matter. He stated that the alleged Luke Kimutai went personally to the Nandi Hills Branch and that they took down his particulars. He agreed that ordinarily, the Defendants would provide an Indemnity document to be signed by a customer before funds are released to him but in this case, there was no need for such Indemnity because they were simply acting on a Court order. He agreed that he did not ask for the name of the “another mother” alleged by Luke Kimutai to be his mother, and neither did he ask for a Certificate of Birth nor a letter from the Chief to confirm the claims made by the alleged Luke Kimutai. He then conceded that what he was referring to as the Amended Grant was in fact the fake Certificate of Confirmation, and that the same was delivered to them through G4S Courier although he conceded that he did have any waybill document to confirm the delivery by G4S.
23. He reiterated that when he received the Grant, he called family members of the deceased and informed them about it, and also had a meeting with them, and he conceded that this was before the funds were released. He agreed that to date, he has never taken any action on the matter, and agreed that there was nothing on record to show the account number which the alleged Luke Kimutai was operating. He conceded that he could not confirm that the alleged Luke Kimutai in fact exists. In re-examination, he stated that he did not know the deceased personally, that he joined the Nandi Hills Branch in 2016, and that he knew one member of the family, the said Andrew Sieli, who had told him that he was a son of the deceased, and he once again pointed out the 2nd Plaintiff sitting in Court as being the said Andrew Sielei, whom he reiterated knew about 6 months before the fraud occurred as he used to go to the Branch to inquire about the bank account, and who told him that they were pursuing the Succession proceedings. He testified that for amounts of less than Kshs 100,000/-, they would only require a letter from the County Commissioner, and not a Grant from the Court, to disburse funds in a bank account held by a deceased person.
24. He testified further that authentication of the Grant could be sought by any authorized officer of the bank and that in this case, he initiated an internal mail to one Patricia Odongo, an internal Legal Officer at their Headquarters at Nairobi, upon whose request or instructions, the Nakuru Branch issued the letter of inquiry to the Nakuru High Court. According to him, this was because of the proximity of the Nakuru Branch to the Nakuru High Court. He urged that he had no further obligation to make further inquiries from the family of the deceased, or to verify whether there was a Petition in the Court file once he received the letter from the Court authenticating the Grant. He thus denied that he was complicit in the fraud and denied that he has ever lived or worked in Nakuru, and stated that no action had been taken against him by his employer as there was no blame on his part. About the letter to the Court written upon realization of the missing digit in the account number mentioned in the Grant, thus “invalid” account number, he reiterated that the Defendants did not supply the correct or full account number, and only raised the issue of the “invalidity” of the account number indicated. According to him therefore, it is not the Defendants who sought an amendment.
Written Submissions
25. At the close of the trial, the parties filed written submissions. The Plaintiffs filed the Submissions dated 14/11/2024, the Defendants filed the Submissions dated 17/12/2025, while the 2nd Third Party filed the Submissions dated 14/12/2024.
Plaintiffs’ Submissions
26. Counsel for the Plaintiffs, after recounting the witness testimonies, gave a list of what, in his view, constitute a raft of admissions made by the Defendants’ witness, DW1, proving particulars of negligence and/or liability against the Defendants. He submitted that the relationship between a bank and its customer is a fiduciary relationship in which the bank acts as a trustee of the customer''s funds in the bank account, that a bank therefore owes a duty of care to its customers at all times, and is under a duty to make all possible inquiries regarding a possible breach of trust regarding the operations of the account, and that this involves not allowing operations by third parties who are not signatories to the account in question. He cited Black’s Law Dictionary, 11th Edition, the case of Wolf v. Superior Court (2003)107 Cal. App. 4th 25, 29 [130 Cal. Rptr. 2d 860], and also Halsbury''s Laws of England, 4th Edition, Volume 3 at paragraph 125. He urged that in this case, the deceased entrusted his funds with the 1st Defendant, and was a loyal and long-standing customer, he was a prominent tea farmer and was well known to the staff of the 1st Defendant''s Nandi Hills Branch, that after he passed away on 19/03/2013 leaving his estate unadministered, the family continued to visit the bank wherein they banked cheques for dividends in the same account.
27. He added that PW1 was particularly known to DW1 who was the Branch Manager between the years 2016 and 2019, and that he (PW1) occasionally updated the bank of the pending Succession proceedings at the Eldoret High Court. In poetic style, Counsel submitted that on 14/02/2019, when the world was celebrating Valentine’s Day, "the day of lovers", the Defendants were overcome with "lust of the eyes" and "fell in love" with the handsome sum of approximately Kshs. 24 million that was in the deceased''s account, they posted one strange entry marked "online account closure" that debited the entire amount of Kshs 24,069,373.60/- that was in the deceased''s bank account and in the twinkling of an eye, the account had zero balance. He observed that coincidentally, a week later on 22/02/2019, the Plaintiffs wrote a letter to the Defendants requesting to be supplied with a copy of a bank statement for the account to enable them apply for Confirmation of Grant, which request was not well received by the Defendants who demanded that the Plaintiffs obtain a Court order before they could access the bank statements. He submitted that the Plaintiffs rushed to Court, and obtained th
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a) An order that the Defendants do reinstate bank Account No. 096-271770881/1106788699 and restore the sum of Kshs. 24,069.373.60/= illegally and fraudulently withdrawn from the said account on 14/02/2019.
b) Interest at Court rates on (a) above from 14/02/2019 until payment in full.
c) Costs of this suit.
d) Any other relief this Court may deem fit and just to grant.
2. In the Plaint, it was pleaded that the Plaintiffs are the administrators of the estate of the late Nathaniel Kibitok Sieley (deceased) who died on 19/03/2013, having obtained the Grant of Letters of Administration on 28/09/2018, that the deceased held the said bank account with the 1st Defendant at its Nandi Hills Branch, and that upon his death, the Plaintiffs filed Eldoret High Court Succession No. 8 of 2018 in which they obtained the said Grant. It was further pleaded that in a bid to discharge their duties as Administrators, the Plaintiffs requested for certified copies of the bank account statements vide the letter dated 22/02/2019, and the 2nd Defendant requested that the Plaintiffs do furnish a Court order for that purpose, upon which the Defendants obtained a Court order on 20/03/2019 directing the 2nd Defendant to furnish them with such statements, and that upon service thereof, the Defendants eventually furnished them with the statements for the period 1/01/2013 to 1/04/2019.
3. It was further pleaded that the statements revealed that the account had a balance of Kshs 23,591,986.25 as at 19/03/2013 when the deceased died, subsequently there were additional credits until 14/02/2019 when the account balance stood at Kshs 24,069.373.60/-. It was also stated that on 14/02/2019, the account was closed online and the entire balance paid out to undisclosed persons, and that the closure of the bank account and payment of the balance to undisclosed persons is fraudulent and illegal. The particulars of the Defendants’ fraud and illegality were then listed as intermeddling with the estate of the deceased, facilitating payment of the account balance to shadowy figures who did not hold a Certificate of Confirmation of Grant, stage-managing online closure of the account by undisclosed persons, facilitating illegal and fraudulent withdrawal of funds in the account, defrauding the estate of the deceased, facilitating payment of the said balance without a Certificate of Confirmation of Grant, making payment to strangers on the basis of a fake Grant, failing to verify the authenticity thereof and collaborating with fraudsters to withdraw funds from the Account.
4. The Defendants, through Messrs Manani, Lilan, Mwetich & Co. Advocates filed the joint Statement of Defence dated 18/06/2019. The Defendants stated that before this action, they had been put on notice that the Administrators of the estate of the deceased was one Luke Kimutai, that if the Plaintiffs filed Eldoret High Court Succession No. 8 of 2018, then the same was filed after the 1st Defendant had already been served with a Grant of Letters of Administration over the same estate in earlier proceedings by the said Luka Kimutai, namely, Nakuru High Court Succession Cause No. 3 of 2013, which the Defendants had acted upon after the High Court of Kenya in Nakuru confirmed the authenticity thereof to the Defendants. It was stated further that if the funds were withdrawn from the bank account in question, then the same was withdrawn by a person holding himself out as holding a valid Grant of representation to the estate, which was authenticated by the Court, and that the Defendants are therefore not complicit to the fraud alleged. It was averred that in the circumstances, the Defendants could not reinstate the account, and that if the Grant is shown to have had any defect, then the Defendants are entitled to full indemnity from the said Luke Kimutai, whom they would be seeking leave to join as a third party to the suit.
5. In the Plaintiffs’ Reply to Defence dated 21/06/2019, it was averred that the Plaintiffs were the lawful Administrators of the estate of the deceased, and they had no knowledge of the Grant obtained by the alleged Luke Kimutai or of the proceedings in Nakuru High Court Succession Cause No. 3 of 2013. It was stated further that the Plaintiffs’ family was well known to the 1st Defendant who, together with a number of staff members even attended the burial service of the deceased in March 2013.
6. Pursuant to the Defendants’ Application, by the orders made on 10/02/2020 by H. Omondi J (as she then was), leave was granted to the Defendants to join the said Luke Kimutai as a third party in the suit. The said Luke Kimutai was then joined as aforesaid. Although it was said by the Defendants’ Counsel that service upon the said Luke Mutai was, with leave of the Court, effected by way of substituted service, he never entered Appearance nor filed a Statement of Defence.
7. When the matter came up for trial on 16/03/2021, it transpired that the Defendant had filed a second Application seeking leave to further join the Hon. Attorney General in the suit as a 2nd Third Party, but which Application the Defendant had delayed to prosecute. In the circumstances, the Application was held in abeyance and in the meantime, the Plaintiff’s first witness was allowed to testify, which he did as PW1. The Application to join the Hon. Attorney General was however later revisited before PW2 testified, and was eventually allowed on 13/03/2021 by H. Omondi J (as she then was). Accordingly, the Hon. Attorney General was joined as the 2nd Third Party.
8. The Hon. Attorney General, having been eventually served, entered appearance as the 2nd Third Party and filed the Statement of Defence dated 7/03/2022. He generally denied liability.
9. When the matter came up 18/03/2024 for hearing of the testimony of PW2, by which time I had taken over hearing of the case, H. Omondi J (as she then was) having been since elevated to the Court of Appeal, it transpired that service upon the 1st Third Party, the alleged Luke Kimutai, may not have been satisfactorily done. Since PW2, the Deputy Registrar in the High Court of Kenya at Nakuru, was already in Court having been served with Witness Summons, after conferring with the parties, and to also save on further delays, I directed that, recognizing the witness’ busy schedule as a Judicial Officer, her testimony would be taken nonetheless, and once service upon the 1st Third Party is established to have been satisfactorily served, and comes on record, he would then be granted liberty to apply to recall the witnesses for cross-examination. The testimony of PW2 was thus taken as aforesaid, on 18/03/2024.
10. I will now recite the testimonies of the respective testimonies.
11. PW1 was the 2nd Plaintiff, Andrew Kipkorir Bitok Sieley, who as aforesaid, testified before H. Omondi J (as she then was) on 16/03/2021. Led by his Counsel, Mr. Yego, he adopted his Statement and stated that his father, the deceased, who died in 2013 held the said account at the 1st Defendant which he had operated for over 40 years, and had a tea farm of about 70-80 acres in Nandi Hills. He stated that they were yet to finalize the proceedings in Eldoret High Court Succession Cause No. 8 of 2016 as their Lawyer passed on. He then reiterated matters stated in the Plaint, including their unsuccessful requests to the Defendants to supply them with bank statements for the account, the Defendants eventually supplying the same pursuant to a Court order, discovery that the account had been closed with a zero balance, and discovery that transactions had been made in the account after the death of the deceased and funds therein released to a stranger. He testified further that he had interacted with the 2nd Defendant, the Manager of the Nandi Hills Branch of the 1st Defendant, that Nandi Hills is a small town and as such everyone knew almost each other, and that the new Manager who came later was informed that the family of the deceased was one of the Branch’s biggest clients. He denied any knowledge of the alleged Luke Kimutai, and then produced the documents contained in the Defendants’ bundle. Under cross-examination by Mr. Maina, Counsel for the Defendants, he reiterated that no one in their family had any knowledge of the alleged Luke Kimutai. About the Bank Manager knowing him, he agreed that he did not have any evidence to support the allegation.
12. PW2 was Hon. Christine Menya, the Deputy Registrar at High Court of Kenya at Nakuru, who testified before me as aforesaid on 18/03/2024 having been served with Witness Summons. She produced two Court files, both bearing the similar description, Nakuru High Court Succession Cause No. 3 of 2013, the first one relating to the Estate of Ayub Wandundo Kimani, and in which the Petitioner is one Grace Wambui Kimani, and the second one relating to the Estate of Nathaniel Kibitok Sieley, allegedly the deceased herein, in which the Petitioner is not named. According to her, the one relating to the Estate of Ayub Wandundo Kimani, was the genuine one as it is backed by a Court Movement Register, and in which the Grant was confirmed on 27/07/2017 by Hon. Maureen Odero J. Regarding the file relating to the Estate of Nathaniel Kibitok Sieley, she stated that upon investigations, they discovered it to be a fake file and there is correspondence to that effect. She testified that it contains a purported Grant confirmed on 22/07/2017 which is fake as it does not exist as confirmed by the letter dated 9/03/2021, and that even the Form P&A 41 purportedly signed by Hon. Wendo J contained therein is also fake. Under cross-examination by Mr. Yego, she stated that to her knowledge, there has not seen any forensic investigations on the matter. She stated that the fake Grant is dated 22/7/2017 and agreed that if the said date was a Saturday, then Courts do not work on Saturdays. She confirmed that it is not possible to have 2 files with the same case number but she could not explain how there came to be such 2 files. She agreed that according to the fake file, the beneficiaries of the KCB A/C was one Luke Kimutai.
13. When referred to the letter dated 27/11/2018 from the Defendants seeking for authentication of the Certificate of Confirmation of Grant issued in the fake file, she stated that the letter was responded to by the letter dated 3/12/2018 in which the Deputy Registrar stated that the bank details (account number) were erroneously captured and that the Administrator had been advised to apply for rectification thereof, and that the letter does not seem to have responded on whether the Grant was genuine. She stated further stated to her knowledge, there was no rectification of the Grant made. She added that the fake file has 2 separate Grants both bearing the date of 22/7/2017, and that the signature of Hon. Maureen Odero J is clearly fake. She stated further that the law firm of Ashitiva & Co. Advocates by its letter dated 2/05/2019, sought confirmation on whether what was issued through the Grant reflected the correct position, and that the Court responded by the letter dated 1/7/2021 and stated that the Grant was fake. She stated also that there was a response letter by the Attorney General dated 9/07/2021, and that the Attorney General had written a letter dated 22/04/2021 seeking for instructions on the Succession Cause No. 3 of 2013.
14. She also stated that the fake file does not contain a Petition or an Application for Confirmation of Grant. She denied that the Judiciary was complicit in any way, and also produced the two Court files bearing the same case number but relating to two separate estates. Under cross-examination by Ms. Jeruto, Counsel holding brief for Mr. Mwetich for the Defendants, she agreed that the Deputy Registrar, by the letter dated 27/11/2018 addressed to the Defendants, confirmed that the Grant presented was authentic and originated from the Court, and there is also the letter dated 14/01/2019, with a Court seal and also the letter dated 3/12/2018 correcting the wrong bank details captured in the fake Grant. She agreed that with the Court authenticating the fake Grant, the Defendants may not be blamed for believing and acting on it. Under cross-examination by Mr. Kwame, State Counsel appearing for the Hon. Attorney General, she stated that the fake file does not appear in the Court’s Movement Register, nor does it contain a letter from the Chief or a Gazette Notice, and that under these circumstances, it is not possible to identify the person who filed it, and also that there is no indication that the file was ever placed before the Judge for any action. Regarding Rectification of a Grant, she stated that it is in practice, done by way of a formal Application, not a letter from the Court, and in the case of the fake file, there was no such Application. She agreed that the Court did not ask for a copy of the Petition or Gazette Notice and agreed further, that had it done so, the fraud may have been discovered, but she however denied that the Court was complicit. Under re-examination by Mr. Yego, she stated that the letters from the 1st Defendant, dated 27/11/2018 and 20/12/2018, were both from the Defendants’ Nakuru Branch.
15. The Plaintiffs then closed their case, and at this point, Mr. Kwame, State Counsel informed the Court he, too, had intended to call a representative from the same High Court at Nakuru but since the Deputy Registrar of the same Court had already testified as PW2, he would not be calling his own separate witness. Upon his request therefore, the Court adopted the testimony of PW2 as representing also the 2nd Third Party’s, the Hon. Attorney General. The Defence case then commenced on 16/07/2024.
16. DW1, Hillary Kipkoech Sitienei testified before me on the said 16/07/2024 and on 22/10/2024. He stated that he used to be the Branch Manager of the 1st Defendant at its Nandi Hills Branch but had since proceeded on transfer to Kitale. He then adopted his Supplementary Statement dated 30/7/2021, and there being no objection raised, he also adopted the earlier Statement made by his predecessor, one Reuben Kirui, dated 1/2/2021, as he stated that the latter had already retired from the 1st Defendant’s employment. He testified that regarding the bank account number 1106788699, the 1st Defendant was made aware of the death of the account-holder and they restricted the account awaiting for an Administrator to be appointed, and that they later received a Grant from the High Court at Nakuru, dated 22/07/2017, indicating that one Luke Kimutai had been appointed as the Administrator and that the same person was listed as being the sole beneficiary. He testified further that as per their procedure, by a letter, they inquired from the Court through the 1st Defendant’s Nakuru Branch for confirmation of the authenticity of the Grant, in response to which they received the letter dated 27/11/2018 from the Court confirming such authenticity. He testified that the letter bore the seal of the Deputy Registrar of the Court but they however noticed that in the account number indicated in the letter from the Court, one digit was missing and they again inquired from the Court, and the Court again gave confirmation, with the account number now corrected, and that they then, on the basis of the letter, disbursed the money.
17. He further stated that the deceased account holder was Nathaniel Kibitok Sitienei, and that he came later to learn that apparently the High Court at Nakuru has 2 cases with the same number but relating to different/conflicting estates of deceased persons, namely, Estate of Nathaniel Kibitok Sieley and Estate of Ayub Wandundo Kimathi. He urged that the Defendants had no reason to doubt the contents of the letters from Court authenticating the Grant present in the Court file confirmed by the Deputy Registrar as the Defendants would not know whether one of the 2 files is fake, as confirmation of the authenticity thereof was the duty of the Court. He confirmed that the amount disbursed to the alleged Luke Kimutai was Kshs 24,068,093.06, and urged that the Defendants conducted due diligence and cannot be faulted. He then produced the documents contained in the Defendants’ bundle.
18. Under cross-examination by Mr. Yego, he stated that he worked at the 1st Defendant’s Nandi Hills between 2015 and 2019, and agreed that the deceased and his family were the 1st Defendants’ key clients as the deceased was a prominent tea farmer in the area. He however stated that he did not know whether the 1st Defendant’s staff knew the deceased personally or whether the Defendants’ staff delegation attended the burial. He testified that he did not personally know the family but stated that he knew one Andrew Sieley who used to come to the Branch, and whom he then identified as the 2nd Plaintiff seated in Court. He denied that the company known as Eastern & Produce Limited had at any time introduced him to the said Andrew Sieley (2nd Plaintiff) and stated that he only met him when he came to the office, and he agreed that other staff might also have known him. He denied knowing the 1st Plaintiff, Elizabeth Sieley, and reiterated that he only met the 2nd Plaintiff, who used to sometimes come to the office to inquire about the bank account, and who used to tell him that the family was pursuing Succession proceedings. He added that he did not know whether the family of the deceased had other properties in Nakuru, and agreed that it was strange that the Grant was issued from the Nakuru High Court, and not Nandi Hills. He then testified that he got the 2nd Plaintiff’s phone number when he called him at some point when the Defendants were seeking for authentication the Grant, and agreed that this was before they disbursed the funds. He testified that when they received the Grant, he phoned the 2nd Plaintiff about it in late 2018, and that the 2nd Plaintiff’s came with some family members, and they protested about the Grant claiming that they were not aware of it.
19. He stated that demand letters were received after the funds had already been disbursed on 14/2/2019, and the bank account closed on 2/04/2019,. He confirmed that they received a Court order compelling them to supply the bank statements and, on the basis thereof, they released the statements. He denied that their initial refusal to release the statements was a sign of complicity, and urged that they were only observing confidentiality as the family members of the deceased were not parties to the bank account. He agreed that on 17/11/2016, the 2nd Plaintiff deposited a dividend cheque, and again on 17/11/2016, deposited another cheque, and on 18/11/2016, a third payment was made, a salary payment was also made to the account, and that after the death of the deceased, the account was not used to make any payments, and only credits were allowed. He stated further that the alleged Luke Kimutai, the alleged Grantee did not have the surname “Sielei”, and that they did not obtain a letter from the Chief to confirm that Luke Kimutai was indeed a son of deceased by another mother as he had alleged. He also confirmed that they did not obtain a Certificate of Birth to prove that Luke Kimutai was a son of the deceased, and also agreed that he did not have any “Know Your Customer” documents in Court although they had them in their records.
20. He also agreed that he did not have the alleged Luke Kimutai’s phone number nor did he know his location or where he resides, and stated that he only knew him 2 weeks before the disbursement of the funds, but that they had a copy of his national identity card. He testified that “online closure” of a bank account means that the account has been closed by the system, but in this case, it was closed manually by a bank staff effecting the Court order. He confirmed that the bank statement he had produced does not show that any transfers were made to the alleged Luke Kimutai, but urged that this does not mean that no disbursement was made, as the bank records contain evidence thereof, and thus denied that the Statement shows an irregularity. He denied manufacturing the name “Luke Kimutai”, but confirmed that he does not have any acknowledgment from him confirming that he received the money although the bank account used by the alleged Luke Kimutai was also at the 1st Defendant’s branch in Nairobi. He agreed that even after learning of the fraud, they did not freeze the account in Nairobi where the funds were received although they are empowered to restrict or freeze suspicious accounts. He further confirmed his knowledge that the Court Register indicates that the deceased died on 13/03/2013, but that the Succession Cause No. 3 of 2013 was opened on 3/1/2013 when the deceased was still alive. He also agreed that the 1st Defendant’s Nandi Hills branch did not by itself issue any letter inquiring about the authenticity of the Grant, but urged that at the Branch, they used to receive Grants from different Courts, including from the Eldoret Court and they would send letters seeking authenticity.
21. He conceded that the Nakuru High Court file does not indicate the existence of a Petitioner but contended that he could not have known this fact. He further confirmed seeing the letter dated 1/7/2019, from the Nakuru High Court addressed to their Advocates, Ashitiva & Co, wherein the Grant was disowned and described as fake and also that there were other letters to the Attorney General from the estate of the deceased, and that there was indication that the Succession Cause was not registered at that Court. He confirmed that 22/7/2017, the date which the Grant was confirmed was a Saturday, a date on which Courts do not work, and that in the Grant, one digit of the account number was missing, and that he did not have any Amended or Rectified Grant correcting the same nor a formal Application seeking Rectification. He stated that what he did when he noticed the missing digit was that he sent another letter to the Court but in which letter, he agreed, he did not explicitly mention the issue of the missing digit in the account number. He then however insisted that there was an Amended Grant although he had not produced any. He testified that the time when the transaction was made was about the same time that he was on transit or transfer to Kitale where he reported on 15/04/2019. He thus agreed that in February 2019, he could have still been at the Nandi Hills Branch.
22. He denied travelling to Nakuru around that time to collude with the staff at the Nakuru Branch, which is the Branch from which the letters addressed to the Court emanated from. Under cross-examination by State Counsel Mr. Kwame, he agreed that he is the one who received the instructions from the alleged Luke Kimutai. He agreed that the letter from the Nakuru Branch seeking authentication of the Grant was delivered to the Court by the 1st Defendants staff member by the name Anne Otieno, although the 1st Defendant had a panel of Law Firms, and also a Legal Department, that, at times, handled communication of such nature, and that he had nothing to show that he sought advice from the Lawyers. He however insisted that there was nothing wrong with the 1st Defendant’s Nakuru Branch handling the matter, rather than the Nandi Hills Branch in which the Account was held, but conceded that he had nothing to show that the Nandi Hills Branch requested the Nakuru Branch to take up the matter. He stated that the alleged Luke Kimutai went personally to the Nandi Hills Branch and that they took down his particulars. He agreed that ordinarily, the Defendants would provide an Indemnity document to be signed by a customer before funds are released to him but in this case, there was no need for such Indemnity because they were simply acting on a Court order. He agreed that he did not ask for the name of the “another mother” alleged by Luke Kimutai to be his mother, and neither did he ask for a Certificate of Birth nor a letter from the Chief to confirm the claims made by the alleged Luke Kimutai. He then conceded that what he was referring to as the Amended Grant was in fact the fake Certificate of Confirmation, and that the same was delivered to them through G4S Courier although he conceded that he did have any waybill document to confirm the delivery by G4S.
23. He reiterated that when he received the Grant, he called family members of the deceased and informed them about it, and also had a meeting with them, and he conceded that this was before the funds were released. He agreed that to date, he has never taken any action on the matter, and agreed that there was nothing on record to show the account number which the alleged Luke Kimutai was operating. He conceded that he could not confirm that the alleged Luke Kimutai in fact exists. In re-examination, he stated that he did not know the deceased personally, that he joined the Nandi Hills Branch in 2016, and that he knew one member of the family, the said Andrew Sieli, who had told him that he was a son of the deceased, and he once again pointed out the 2nd Plaintiff sitting in Court as being the said Andrew Sielei, whom he reiterated knew about 6 months before the fraud occurred as he used to go to the Branch to inquire about the bank account, and who told him that they were pursuing the Succession proceedings. He testified that for amounts of less than Kshs 100,000/-, they would only require a letter from the County Commissioner, and not a Grant from the Court, to disburse funds in a bank account held by a deceased person.
24. He testified further that authentication of the Grant could be sought by any authorized officer of the bank and that in this case, he initiated an internal mail to one Patricia Odongo, an internal Legal Officer at their Headquarters at Nairobi, upon whose request or instructions, the Nakuru Branch issued the letter of inquiry to the Nakuru High Court. According to him, this was because of the proximity of the Nakuru Branch to the Nakuru High Court. He urged that he had no further obligation to make further inquiries from the family of the deceased, or to verify whether there was a Petition in the Court file once he received the letter from the Court authenticating the Grant. He thus denied that he was complicit in the fraud and denied that he has ever lived or worked in Nakuru, and stated that no action had been taken against him by his employer as there was no blame on his part. About the letter to the Court written upon realization of the missing digit in the account number mentioned in the Grant, thus “invalid” account number, he reiterated that the Defendants did not supply the correct or full account number, and only raised the issue of the “invalidity” of the account number indicated. According to him therefore, it is not the Defendants who sought an amendment.
Written Submissions
25. At the close of the trial, the parties filed written submissions. The Plaintiffs filed the Submissions dated 14/11/2024, the Defendants filed the Submissions dated 17/12/2025, while the 2nd Third Party filed the Submissions dated 14/12/2024.
Plaintiffs’ Submissions
26. Counsel for the Plaintiffs, after recounting the witness testimonies, gave a list of what, in his view, constitute a raft of admissions made by the Defendants’ witness, DW1, proving particulars of negligence and/or liability against the Defendants. He submitted that the relationship between a bank and its customer is a fiduciary relationship in which the bank acts as a trustee of the customer''s funds in the bank account, that a bank therefore owes a duty of care to its customers at all times, and is under a duty to make all possible inquiries regarding a possible breach of trust regarding the operations of the account, and that this involves not allowing operations by third parties who are not signatories to the account in question. He cited Black’s Law Dictionary, 11th Edition, the case of Wolf v. Superior Court (2003)107 Cal. App. 4th 25, 29 [130 Cal. Rptr. 2d 860], and also Halsbury''s Laws of England, 4th Edition, Volume 3 at paragraph 125. He urged that in this case, the deceased entrusted his funds with the 1st Defendant, and was a loyal and long-standing customer, he was a prominent tea farmer and was well known to the staff of the 1st Defendant''s Nandi Hills Branch, that after he passed away on 19/03/2013 leaving his estate unadministered, the family continued to visit the bank wherein they banked cheques for dividends in the same account.
27. He added that PW1 was particularly known to DW1 who was the Branch Manager between the years 2016 and 2019, and that he (PW1) occasionally updated the bank of the pending Succession proceedings at the Eldoret High Court. In poetic style, Counsel submitted that on 14/02/2019, when the world was celebrating Valentine’s Day, "the day of lovers", the Defendants were overcome with "lust of the eyes" and "fell in love" with the handsome sum of approximately Kshs. 24 million that was in the deceased''s account, they posted one strange entry marked "online account closure" that debited the entire amount of Kshs 24,069,373.60/- that was in the deceased''s bank account and in the twinkling of an eye, the account had zero balance. He observed that coincidentally, a week later on 22/02/2019, the Plaintiffs wrote a letter to the Defendants requesting to be supplied with a copy of a bank statement for the account to enable them apply for Confirmation of Grant, which request was not well received by the Defendants who demanded that the Plaintiffs obtain a Court order before they could access the bank statements. He submitted that the Plaintiffs rushed to Court, and obtained th
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