1. The Plaintiff herein, a limited liability company duly incorporated in Kenya, commenced this suit by way of a plaint dated 18th August 2023.
2. The Plaintiff’s case is that it operated a current account with the Defendant, a licensed banking institution, at its Donholm Branch. This account, it averred, was established to facilitate its cement distributorship enterprise with Savannah Cement Limited, pursuant to a distributorship agreement dated 12th July 2016.
3. The Plaintiff contended that its operations ran seamlessly until 25th August 2017, when its director, one Clifford Barare Momanyi, was allegedly summoned to the offices of Savannah Cement in Athi River, whereupon he was arrested by the police and taken to Athi River Police Station. He was informed that the arrest was precipitated by the dishonour of a cheque amounting to Kshs. 396,000 issued by the Plaintiff to Savannah Cement Ltd, owing to the alleged freezing of the Plaintiff’s bank account.
4. The Plaintiff’s grievance was that the Defendant bank failed to communicate the freezing of the said account, thereby denying it the opportunity to take remedial action. It averred that the account contained sufficient funds, specifically Kshs. 520,225, and had not been subjected to any suspicious transactions that would justify the purported freezing. It therefore accused the Defendant of breaching the banker-customer relationship by failing to exercise reasonable skill and care.
5. As a consequence, the Plaintiff alleged that the cheque in question was dishonoured, which in turn led to the immediate termination of the distributorship contract with Savannah Cement Ltd and the loss of a credit order worth Kshs. 1,000,000. The Plaintiff further claimed that its business, which previously enjoyed a turnover of approximately Kshs. 4.79 million, collapsed following the incident.
6. Despite issuing several demands, the Plaintiff stated that the Defendant failed or refused to take responsibility. The Plaintiff thus prayed for judgment against the Defendant in the following terms:
i. General damages for breach of contract;
ii. General damages for loss of credit and reputation;
iii. Aggravated damages;
iv. Punitive damages;
v. Interest on the above at court rates;
vi. Costs of the suit; and
vii. Such other relief as the Court may deem fit.
Plaintiff’s Evidence
7. The Plaintiff called Clifford Barare Momanyi (PW1), one of its directors, who adopted his witness statement dated 10th August 2023 as his evidence in chief.
8. PW1 confirmed the opening of the account at the Defendant's Donholm Branch (A/C No. 01148684656100) and the existence of a distributorship agreement with Savannah Cement Ltd dating back to 2016. He testified that on 25th August 2017, he was summoned to Savannah Cement’s Athi River offices, arrested, and taken to Athi River Police Station where he was informed that the arrest related to a dishonoured cheque due to a frozen account.
9. He maintained that the account had sufficient funds at the material time and that no notice of dishonour had been issued, in violation of Section 75B of the Bills of Exchange Act. He attributed the termination of the distributorship contract and the cancellation of a credit order to this incident, and stated that the business never recovered thereafter.
10. PW2, Stephen Taurus, a police officer at Athi River Police Station, confirmed the arrest and produced an Occurrence Book (OB) entry to that effect.
Defendant’s Case
11. The Defendant filed a defence dated 18th September 2023, generally denying the Plaintiff’s allegations save for the admission of the Plaintiff’s account held at its Donholm Branch. It denied any knowledge of the Plaintiff’s business dealings with Savannah Cement Ltd, or any instructions to freeze the account or dishonour a cheque.
12. It was the Defendant’s position that the Plaintiff’s account held a balance of only Kshs. 268.13 as at 24th August 2023 and that the account had never been frozen at any time.
13. The Defendant further denied ever dishonouring any cheque, and contended that no proof had been availed to support claims of termination of the distributorship agreement or the alleged loss of a credit order. It also contended that no formal demand had been made, and that the suit was time-barred, frivolous, and meant to vex the Defendant.
14. The Defendant called one witness, Ms. Millianah Nyamai (DW1), a Business Banker at the Donholm Branch. She adopted her statement dated 27th May 2024.
15. DW1 testified that the Plaintiff’s account was opened on 10th August 2017, and she personally handled it. She maintained that no account freeze had ever been imposed, and that there was no record of any dishonoured cheque or any complaint received from Savannah Cement Ltd.
16. She pointed out that the last activity on the account occurred on 9th May 2019, involving a deposit of Kshs. 200,000, which was withdrawn the next day. She concluded that the Plaintiff’s claim was unsubstantiated and appeared to be driven by malice.
17. The Plaintiff, in its reply to defence dated 18th October 2023, clarified that the reference to the year 2023 in its plaint was a typographical error, and that the relevant date was 25th August 2017, as supported by the OB extract.
Analysis and Determination
18. I have carefully considered the pleadings by the parties, the evidence submitted at trial, and the submissions filed herein. The issues that I have identified to be requiring this Court’s determination are as follows: -
i. Whether there was a breach of contract on the part of the Defendant;
ii. Whether the Plaintiff is entitled to the reliefs sought.
19. On the first issue, the burden of proof lies with the Plaintiff under Section 107 of the Evidence Act, which provides that he who alleges must prove. This position is reinforced by the holding in Stephen Wasike Wakho & Another v Security Express Ltd [2006] eKLR, where the Court emphasised the need to adduce evidence sufficient to support the legal rights being claimed.
20. Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya, provides that:-
Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
21. In Anne Wambui Ndiritu vs Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, the Court of Appeal held that:-
“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.
22. The degree of proof is as enunciated in the case of Miller vs Minister of pensions [1947] cited with approval in D.T. Dobie Company (K) Limited vs Wanyonyi Wafula Chabukati [2014] eKLR where the court stated that:-
“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say ‘we think it more probable than not’, thus proof on a balance or prepodence of probabilities means a win however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally unconvincing the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”
23. The Plaintiff based its case on the alleged dishonour of a cheque and freezing of its account, yet no image return document, dishonoured cheque notice, or credible evidence from Savannah Cement Ltd was presented in court.
24. The only document tendered in relation to the arrest was a police OB extract whose evidentiary value is limited and lacked sufficient detail to establish a causal link between the bank’s actions and the arrest. No formal charges were ever preferred against the Plaintiff’s director, and PW2 gave no substantive testimony linking the arrest to the Defendant’s conduct.
25. On the other hand, the Defendant provided bank statements and witness testimony negating the existence of any account freeze or dishonoured cheque, and the Plaintiff failed to challenge this evidence materially.
26. In the circumstances, the Court finds that the Plaintiff failed to discharge the evidentiary burden required to prove the alleged breach of contract.
27. With regard to the second issue, it follows that, having failed to prove breach of contract, the Plaintiff cannot succeed in its prayers for general, aggravated, or punitive damages.
Disposition
28. In view of the foregoing, I find no merit in the Plaintiff’s suit. The same is hereby dismissed with costs to the Defendant.
29. It is so decreed.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
26TH DAY OF JUNE 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
Onsombi…………………..for the Plaintiff
Kenneth Wilson….……....for the Defendant
2. The Plaintiff’s case is that it operated a current account with the Defendant, a licensed banking institution, at its Donholm Branch. This account, it averred, was established to facilitate its cement distributorship enterprise with Savannah Cement Limited, pursuant to a distributorship agreement dated 12th July 2016.
3. The Plaintiff contended that its operations ran seamlessly until 25th August 2017, when its director, one Clifford Barare Momanyi, was allegedly summoned to the offices of Savannah Cement in Athi River, whereupon he was arrested by the police and taken to Athi River Police Station. He was informed that the arrest was precipitated by the dishonour of a cheque amounting to Kshs. 396,000 issued by the Plaintiff to Savannah Cement Ltd, owing to the alleged freezing of the Plaintiff’s bank account.
4. The Plaintiff’s grievance was that the Defendant bank failed to communicate the freezing of the said account, thereby denying it the opportunity to take remedial action. It averred that the account contained sufficient funds, specifically Kshs. 520,225, and had not been subjected to any suspicious transactions that would justify the purported freezing. It therefore accused the Defendant of breaching the banker-customer relationship by failing to exercise reasonable skill and care.
5. As a consequence, the Plaintiff alleged that the cheque in question was dishonoured, which in turn led to the immediate termination of the distributorship contract with Savannah Cement Ltd and the loss of a credit order worth Kshs. 1,000,000. The Plaintiff further claimed that its business, which previously enjoyed a turnover of approximately Kshs. 4.79 million, collapsed following the incident.
6. Despite issuing several demands, the Plaintiff stated that the Defendant failed or refused to take responsibility. The Plaintiff thus prayed for judgment against the Defendant in the following terms:
i. General damages for breach of contract;
ii. General damages for loss of credit and reputation;
iii. Aggravated damages;
iv. Punitive damages;
v. Interest on the above at court rates;
vi. Costs of the suit; and
vii. Such other relief as the Court may deem fit.
Plaintiff’s Evidence
7. The Plaintiff called Clifford Barare Momanyi (PW1), one of its directors, who adopted his witness statement dated 10th August 2023 as his evidence in chief.
8. PW1 confirmed the opening of the account at the Defendant's Donholm Branch (A/C No. 01148684656100) and the existence of a distributorship agreement with Savannah Cement Ltd dating back to 2016. He testified that on 25th August 2017, he was summoned to Savannah Cement’s Athi River offices, arrested, and taken to Athi River Police Station where he was informed that the arrest related to a dishonoured cheque due to a frozen account.
9. He maintained that the account had sufficient funds at the material time and that no notice of dishonour had been issued, in violation of Section 75B of the Bills of Exchange Act. He attributed the termination of the distributorship contract and the cancellation of a credit order to this incident, and stated that the business never recovered thereafter.
10. PW2, Stephen Taurus, a police officer at Athi River Police Station, confirmed the arrest and produced an Occurrence Book (OB) entry to that effect.
Defendant’s Case
11. The Defendant filed a defence dated 18th September 2023, generally denying the Plaintiff’s allegations save for the admission of the Plaintiff’s account held at its Donholm Branch. It denied any knowledge of the Plaintiff’s business dealings with Savannah Cement Ltd, or any instructions to freeze the account or dishonour a cheque.
12. It was the Defendant’s position that the Plaintiff’s account held a balance of only Kshs. 268.13 as at 24th August 2023 and that the account had never been frozen at any time.
13. The Defendant further denied ever dishonouring any cheque, and contended that no proof had been availed to support claims of termination of the distributorship agreement or the alleged loss of a credit order. It also contended that no formal demand had been made, and that the suit was time-barred, frivolous, and meant to vex the Defendant.
14. The Defendant called one witness, Ms. Millianah Nyamai (DW1), a Business Banker at the Donholm Branch. She adopted her statement dated 27th May 2024.
15. DW1 testified that the Plaintiff’s account was opened on 10th August 2017, and she personally handled it. She maintained that no account freeze had ever been imposed, and that there was no record of any dishonoured cheque or any complaint received from Savannah Cement Ltd.
16. She pointed out that the last activity on the account occurred on 9th May 2019, involving a deposit of Kshs. 200,000, which was withdrawn the next day. She concluded that the Plaintiff’s claim was unsubstantiated and appeared to be driven by malice.
17. The Plaintiff, in its reply to defence dated 18th October 2023, clarified that the reference to the year 2023 in its plaint was a typographical error, and that the relevant date was 25th August 2017, as supported by the OB extract.
Analysis and Determination
18. I have carefully considered the pleadings by the parties, the evidence submitted at trial, and the submissions filed herein. The issues that I have identified to be requiring this Court’s determination are as follows: -
i. Whether there was a breach of contract on the part of the Defendant;
ii. Whether the Plaintiff is entitled to the reliefs sought.
19. On the first issue, the burden of proof lies with the Plaintiff under Section 107 of the Evidence Act, which provides that he who alleges must prove. This position is reinforced by the holding in Stephen Wasike Wakho & Another v Security Express Ltd [2006] eKLR, where the Court emphasised the need to adduce evidence sufficient to support the legal rights being claimed.
20. Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya, provides that:-
Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
21. In Anne Wambui Ndiritu vs Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, the Court of Appeal held that:-
“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.
22. The degree of proof is as enunciated in the case of Miller vs Minister of pensions [1947] cited with approval in D.T. Dobie Company (K) Limited vs Wanyonyi Wafula Chabukati [2014] eKLR where the court stated that:-
“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say ‘we think it more probable than not’, thus proof on a balance or prepodence of probabilities means a win however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally unconvincing the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”
23. The Plaintiff based its case on the alleged dishonour of a cheque and freezing of its account, yet no image return document, dishonoured cheque notice, or credible evidence from Savannah Cement Ltd was presented in court.
24. The only document tendered in relation to the arrest was a police OB extract whose evidentiary value is limited and lacked sufficient detail to establish a causal link between the bank’s actions and the arrest. No formal charges were ever preferred against the Plaintiff’s director, and PW2 gave no substantive testimony linking the arrest to the Defendant’s conduct.
25. On the other hand, the Defendant provided bank statements and witness testimony negating the existence of any account freeze or dishonoured cheque, and the Plaintiff failed to challenge this evidence materially.
26. In the circumstances, the Court finds that the Plaintiff failed to discharge the evidentiary burden required to prove the alleged breach of contract.
27. With regard to the second issue, it follows that, having failed to prove breach of contract, the Plaintiff cannot succeed in its prayers for general, aggravated, or punitive damages.
Disposition
28. In view of the foregoing, I find no merit in the Plaintiff’s suit. The same is hereby dismissed with costs to the Defendant.
29. It is so decreed.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
26TH DAY OF JUNE 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
Onsombi…………………..for the Plaintiff
Kenneth Wilson….……....for the Defendant