[Ruling] – BANKRUPTCY LAW – application – applicant sought to reverse and cancel all entries in the registry pertaining tot eh suit property by the commissioner of land – where the official receiver claims that the properties transferred contrary to the bankruptcy provisions – effect of – factors the court considers in such applications – validity of order

..

[RULING] Civil Practice and Procedure-judgment-application to set aside an ex-parte judgment-whether the defendants must show a prima facie defence  prior to the court granting orders to set aside-Civil Procedure Rules, Order 9A, rules 10 and 11

Dennis Mukholo Ochwada v Kenya Commercial Bank Ltd

High Court, at Nairobi June 30, 2003

Osiemo J

Civil Case No 985 of 2001

Banking Law – bank-customer relationship - duty of care – duty to act reasonably – obligations due to customer vis a vis payee – postponement of payment of cheque – whether it amounts to breach of contract

Defamation - libel – by bank – effect of words on unpaid cheque – whether the remarks “payment requires confirmation” amounts to libel.

Damages – special damages – proof of such damages - requirement for special damages to be specifically pleaded and strictly proved

The plaintiff was a customer of the defendant bank. The defendant returned the plaintiff’s cheques unpaid on the grounds that payment required the drawer’s confirmation.

The plaintiff sought special damages for loss of profit including business opportunity and general damages for breach of contract and libel.

The defendant argued that it had acted reasonably and prudently with the accepted banking norms. The defendant further argued that the remarks on the returned cheques were not libelous and did not lower the customer’s reputation in the minds of right thinking Kenyans.

Held:

1. The customer has no right to put upon the banker, and the banker is not bound to accept, any risk or inability not contemplated in or essentially arising out of the ordinary routine of business.

2. The defendant bank acted prudently and reasonably as they merely postponed payment in view of the unusual circumstances and only paid a few days later upon confirmation.

3. The postponement of payment by the bank was justifiable and hence there was no breach of contract.

4. The words “payment requires confirmation” on the returned cheque were not libelous and nor did the words have the effect of lowering the plaintiff’s reputation in the minds of right thinking people.

5. Special damages must be specifically pleaded and strictly proved. The Court cannot determine whether or not the plaintiff would have made a profit without any documentary or oral evidence.

Plaintiff’s suit dismissed with costs.

Cases

No cases referred to.

Texts

Paget J., Hapgood M (1989) Paget’s Law of Banking London: Butterworths 10th Edn p 199

Statutes

No statutes referred.

[RULING] Civil Procedure - parties - whether the appliant had brought the suit against the proper parties - Order 39 rr. 1(a),2 2A,3 of Civil Procedure Rules and Section 3A of the Civil Procedure Act

Election petition - procedure - requirement that petitioner must personally sign the petition - basis for that requirement - whether the petitioner must sign in a particular manner - discrepancy in signatures - decision for the election court - weight given to technicalities - section 23(1)(d) of the National Assembly and Presidential Elections Act (cap 7).