' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
CIVIL APPEAL NO 187 OF 2011
OMAR KASONGO MASIMBA T/A
MARACHI ELECTRONICS…………………………………APPELLANT
VERSUS
BARCLAYS BANK OF KENYA LIMITED………………RESPONDENT
(An appeal arising from the judgment and decree of the Honourable Pamela Achieng (RM) delivered on the 23/11/2011 in Bungoma CMCC No 417 of 2010)
JUDGMENT
The appellant maintained an account with the respondent bank. He stated that on 9th October 2009, 8th December 2009, 6th April 2010, and 7th April 2010, his account was debited with amounts of Kshs. 1,000/-, Kshs. 1,500/-, Kshs. 20,000/-, and Kshs. 7,500/-, allegedly as ATM withdrawals made through Visa transactions at I&M Bank/K-Rep, Bungoma. He also found out that a commission fee of Kshs. 200/- was charged for each transaction.
He claimed the debits were irregular, unlawful, and in breach of the contract between the appellant and the respondent. He therefore sought damages of Kshs 70,000/-, representing the withdrawn amount and Kshs 1,200 for the commission charged.
The respondent in its defence argued that it had no control over the appellant’s ATM/VISA card. The card was always in the sole custody of the appellant. It also contended that the appellant had not reported any loss or misuse of the ATM card to it.
The trial magistrate, in her judgment, dismissed the case because the appellant had not established any grounds upon which the court could hold the respondent liable for the losses he incurred.
The appellant has filed his appeal for the following reasons:
That the learned trial magistrate erred in both law and fact when she dismissed the appellant’s suit on a technicality, and hence occasioned a miscarriage of justice.
That the learned trial magistrate erred in both law and fact when she failed to find that the appellant had proved his case on the required standards of proof, hence occasioning a miscarriage of justice.
That the learned trial magistrate erred in both law and fact when she failed to find that the respondent’s defence was a mere sham.
That the learned trial magistrate erred in both law and fact when she failed to find that the respondent owed the appellant a duty to protect the funds deposited, hence occasioning a miscarriage of justice.
That the learned trial magistrate erred in both law and fact when she failed to find that indeed there were suspect withdrawals from the appellant’s account, hence occasioning a miscarriage of justice.
That the learned trial magistrate erred in both law and fact when she awarded costs of the case to the respondents.
That the learned trial magistrate’s decision was plainly wrong and contrary to the law and rules of procedure and evidence .
Omar Kasongo Masimba (Pw1) testified that he opened an account with the respondent in 1994, Account No 800xxxx at its Bungoma Branch. He was issued with an ATM card for the account in 1994, and later in 2009, he surrendered the card and was reissued a new ATM card. While at the respondent’s Garissa Branch, Pw1 stated that he was informed by the manager that someone had accessed his account. Pw1 had already lost Kshs 60,000/-. He reported the matter to the Garissa Police Station. Pw1 then returned to Bungoma and requested a statement, which showed that funds had been withdrawn from the account. He submitted a complaint to the bank dated 12/4/2010. The total illegal withdrawals amounted to Kshs 71,200/-. The bank was responsible for the loss he sustained. On cross-examination, he confirmed that he was the only user of the ATM card and did not disclose the PIN to anyone. He raised a complaint when he realised there was an issue but did not receive a response.
NO. 232143 (Pw2) testified that he was the OCS at Garissa Police Station. The appellant made a complaint that money had been withdrawn from his bank account without his knowledge. Three withdrawals totalling Kshs 60,000 were made from his account. He testified that they have yet to make any arrest.
Peter Kamau Nganga (Dw1) was the respondent’s senior investigations manager. He was informed by the bank manager that the appellant was disputing transactions on his account. Dw1 testified that his investigations showed that four transactions had been cashed out at Pesa Point in Bungoma town. They summoned the executive at Pesa Point regarding the transactions, and they found out that the transactions were made using the appellant’s ATM card. He explained that the bank did not know the customer’s PIN. He testified that the appellant was not compensated because the transactions were cashed out with his ATM card, and the bank was not responsible for the transactions since the appellant was the card’s custodian. The ATM withdrawal limit was Kshs 30,000, and Kshs 40,000 at Pesa Point. The ATM transactions of Kshs 20,000 took place on 4th and 5th April.
ANALYSIS AND DETERMINATION
Since this is the first appeal, this court must review the trial court’s record and the evidence presented to reach its own conclusion. (See Selle v Associated Motor Boat Co. Ltd [1968] EA 123).
The appellant submitted that he demonstrated he took reasonable precautions to protect the card details and PIN. It cited the case of Barclays Bank of Kenya Limited v Diana Sambo Mwasela (2020) eKLR, where the court held that it is a bank’s duty to protect its customers from exposure to fraud by agents such as directors, business partners, third parties, and others. The respondent had a legal duty to protect the appellant from unauthorised transactions. It was submitted that the respondent, having discovered the unauthorised transactions before the court and enabled by VISA at Pesa Point, ought to have conducted further investigations through VISA. The respondent had a contract with VISA.
The respondent, in its submission, argues that the appellant failed to provide sufficient proof that the alleged ATM withdrawals were unauthorised. No CCTV footage showed a breach at the respondent Bank. The appellant also did not submit evidence that the respondent breached its contract. It criticised the appellant for delaying in reporting fraudulent activities, which were observed as early as 9th October 2009.
The only issue before the court is whether the respondent is liable to pay the withdrawn sums from the appellant’s account amounting to Kshs 71,200/-.
In this case, various transactions were carried out using the appellant’s account. However, these transactions did not occur at the respondent’s ATM. The appellant referenced the case of Barclays of Kenya Limited v Diana Sambo Mwasela (2020) eKLR, where withdrawals took place within the bank’s ATM. Unlike this situation, the Visa transactions occurred at I&M Bank/K-Rep, Bungoma. Dw1 testified that the ATM lacked CCTV cameras; therefore, no footage could be obtained.
The evidence before the court indicated that the appellant was the only person with the PIN and access to the account. There was no evidence presented by the appellant to show that the respondent knew of or had access to the ATM card and PIN. Furthermore, there was no evidence on a balance of probabilities to suggest that the transactions were carried out by a third party. The court in Co-operative Bank of Kenya Limited v Obure [2024] KEHC 5275 (KLR) held that:
“36. From the pleadings and material tendered at the trial, it is apparent that at the point of issuance of the credit cards and at all material times for that matter, both the said cards and their PIN details in the possession, custody and knowledge of the Respondent. There is nothing to indicate that the Appellant had knowledge of or access to the Respondent’s PIN……
40. Taking all factors and material on record into account, the court is persuaded by the disclaimer of liability by the Appellant based on the fact that the credit cards and PIN were at all material times in the possession/custody and knowledge of the Respondent. Curiously, even after the initial alleged losses, the Respondent was content to write to the Appellant but retained the cards, and not returning them to the Appellant, as a reasonable person would have done. In any event, the Respondent did not tender any credible evidence to show that the Appellant and/or its agents had or would have had access to his PIN or cards.”
In my view, the appellant did not demonstrate that the respondent breached its obligations, as there was no evidence presented to support this. Therefore, I am constrained to agree with the trial court that the appellant failed to prove his case to the required standard of proof.
Consequently, the appeal lacks merit and is hereby dismissed. Each party to bear its own costs.
Dated, Signed and Delivered at BUNGOMA this 6 th day of November 2025
R.E. OUGO
JUDGE
In the presence of:
Miss Wanyama -For the Appellant
Mr. Sigona -For the Respondent
Wilkister -.C/A
'
IN THE HIGH COURT OF KENYA AT BUNGOMA
CIVIL APPEAL NO 187 OF 2011
OMAR KASONGO MASIMBA T/A
MARACHI ELECTRONICS…………………………………APPELLANT
VERSUS
BARCLAYS BANK OF KENYA LIMITED………………RESPONDENT
(An appeal arising from the judgment and decree of the Honourable Pamela Achieng (RM) delivered on the 23/11/2011 in Bungoma CMCC No 417 of 2010)
JUDGMENT
The appellant maintained an account with the respondent bank. He stated that on 9th October 2009, 8th December 2009, 6th April 2010, and 7th April 2010, his account was debited with amounts of Kshs. 1,000/-, Kshs. 1,500/-, Kshs. 20,000/-, and Kshs. 7,500/-, allegedly as ATM withdrawals made through Visa transactions at I&M Bank/K-Rep, Bungoma. He also found out that a commission fee of Kshs. 200/- was charged for each transaction.
He claimed the debits were irregular, unlawful, and in breach of the contract between the appellant and the respondent. He therefore sought damages of Kshs 70,000/-, representing the withdrawn amount and Kshs 1,200 for the commission charged.
The respondent in its defence argued that it had no control over the appellant’s ATM/VISA card. The card was always in the sole custody of the appellant. It also contended that the appellant had not reported any loss or misuse of the ATM card to it.
The trial magistrate, in her judgment, dismissed the case because the appellant had not established any grounds upon which the court could hold the respondent liable for the losses he incurred.
The appellant has filed his appeal for the following reasons:
That the learned trial magistrate erred in both law and fact when she dismissed the appellant’s suit on a technicality, and hence occasioned a miscarriage of justice.
That the learned trial magistrate erred in both law and fact when she failed to find that the appellant had proved his case on the required standards of proof, hence occasioning a miscarriage of justice.
That the learned trial magistrate erred in both law and fact when she failed to find that the respondent’s defence was a mere sham.
That the learned trial magistrate erred in both law and fact when she failed to find that the respondent owed the appellant a duty to protect the funds deposited, hence occasioning a miscarriage of justice.
That the learned trial magistrate erred in both law and fact when she failed to find that indeed there were suspect withdrawals from the appellant’s account, hence occasioning a miscarriage of justice.
That the learned trial magistrate erred in both law and fact when she awarded costs of the case to the respondents.
That the learned trial magistrate’s decision was plainly wrong and contrary to the law and rules of procedure and evidence .
Omar Kasongo Masimba (Pw1) testified that he opened an account with the respondent in 1994, Account No 800xxxx at its Bungoma Branch. He was issued with an ATM card for the account in 1994, and later in 2009, he surrendered the card and was reissued a new ATM card. While at the respondent’s Garissa Branch, Pw1 stated that he was informed by the manager that someone had accessed his account. Pw1 had already lost Kshs 60,000/-. He reported the matter to the Garissa Police Station. Pw1 then returned to Bungoma and requested a statement, which showed that funds had been withdrawn from the account. He submitted a complaint to the bank dated 12/4/2010. The total illegal withdrawals amounted to Kshs 71,200/-. The bank was responsible for the loss he sustained. On cross-examination, he confirmed that he was the only user of the ATM card and did not disclose the PIN to anyone. He raised a complaint when he realised there was an issue but did not receive a response.
NO. 232143 (Pw2) testified that he was the OCS at Garissa Police Station. The appellant made a complaint that money had been withdrawn from his bank account without his knowledge. Three withdrawals totalling Kshs 60,000 were made from his account. He testified that they have yet to make any arrest.
Peter Kamau Nganga (Dw1) was the respondent’s senior investigations manager. He was informed by the bank manager that the appellant was disputing transactions on his account. Dw1 testified that his investigations showed that four transactions had been cashed out at Pesa Point in Bungoma town. They summoned the executive at Pesa Point regarding the transactions, and they found out that the transactions were made using the appellant’s ATM card. He explained that the bank did not know the customer’s PIN. He testified that the appellant was not compensated because the transactions were cashed out with his ATM card, and the bank was not responsible for the transactions since the appellant was the card’s custodian. The ATM withdrawal limit was Kshs 30,000, and Kshs 40,000 at Pesa Point. The ATM transactions of Kshs 20,000 took place on 4th and 5th April.
ANALYSIS AND DETERMINATION
Since this is the first appeal, this court must review the trial court’s record and the evidence presented to reach its own conclusion. (See Selle v Associated Motor Boat Co. Ltd [1968] EA 123).
The appellant submitted that he demonstrated he took reasonable precautions to protect the card details and PIN. It cited the case of Barclays Bank of Kenya Limited v Diana Sambo Mwasela (2020) eKLR, where the court held that it is a bank’s duty to protect its customers from exposure to fraud by agents such as directors, business partners, third parties, and others. The respondent had a legal duty to protect the appellant from unauthorised transactions. It was submitted that the respondent, having discovered the unauthorised transactions before the court and enabled by VISA at Pesa Point, ought to have conducted further investigations through VISA. The respondent had a contract with VISA.
The respondent, in its submission, argues that the appellant failed to provide sufficient proof that the alleged ATM withdrawals were unauthorised. No CCTV footage showed a breach at the respondent Bank. The appellant also did not submit evidence that the respondent breached its contract. It criticised the appellant for delaying in reporting fraudulent activities, which were observed as early as 9th October 2009.
The only issue before the court is whether the respondent is liable to pay the withdrawn sums from the appellant’s account amounting to Kshs 71,200/-.
In this case, various transactions were carried out using the appellant’s account. However, these transactions did not occur at the respondent’s ATM. The appellant referenced the case of Barclays of Kenya Limited v Diana Sambo Mwasela (2020) eKLR, where withdrawals took place within the bank’s ATM. Unlike this situation, the Visa transactions occurred at I&M Bank/K-Rep, Bungoma. Dw1 testified that the ATM lacked CCTV cameras; therefore, no footage could be obtained.
The evidence before the court indicated that the appellant was the only person with the PIN and access to the account. There was no evidence presented by the appellant to show that the respondent knew of or had access to the ATM card and PIN. Furthermore, there was no evidence on a balance of probabilities to suggest that the transactions were carried out by a third party. The court in Co-operative Bank of Kenya Limited v Obure [2024] KEHC 5275 (KLR) held that:
“36. From the pleadings and material tendered at the trial, it is apparent that at the point of issuance of the credit cards and at all material times for that matter, both the said cards and their PIN details in the possession, custody and knowledge of the Respondent. There is nothing to indicate that the Appellant had knowledge of or access to the Respondent’s PIN……
40. Taking all factors and material on record into account, the court is persuaded by the disclaimer of liability by the Appellant based on the fact that the credit cards and PIN were at all material times in the possession/custody and knowledge of the Respondent. Curiously, even after the initial alleged losses, the Respondent was content to write to the Appellant but retained the cards, and not returning them to the Appellant, as a reasonable person would have done. In any event, the Respondent did not tender any credible evidence to show that the Appellant and/or its agents had or would have had access to his PIN or cards.”
In my view, the appellant did not demonstrate that the respondent breached its obligations, as there was no evidence presented to support this. Therefore, I am constrained to agree with the trial court that the appellant failed to prove his case to the required standard of proof.
Consequently, the appeal lacks merit and is hereby dismissed. Each party to bear its own costs.
Dated, Signed and Delivered at BUNGOMA this 6 th day of November 2025
R.E. OUGO
JUDGE
In the presence of:
Miss Wanyama -For the Appellant
Mr. Sigona -For the Respondent
Wilkister -.C/A
'