Jedidah Wanjiru Wairimu v Simon Karogha Njoroge, National Industrial Credit Bank Ltd, Credit Reference Bureau & African Provident Limited t/a Real People [2016] KEHC 5662 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

CIVIL  SUIT NUMBER 17 OF 2014

JEDIDAH WANJIRU WAIRIMU. ............................................................PLAINTIFF

VERSUS

SIMON KAROGHA NJOROGE .................................................1ST  DEFENDANT

NATIONAL INDUSTRIAL CREDIT

BANK LTD...................................................................................2ND DEFENDANT

CREDIT REFERENCE BUREAU................................................3RD DEFENDANT

AFRICAN PROVIDENT LIMITED T/A REAL PEOPLE............4TH DEFENDANT

RULING

1.       The application dated 17th March 2014 is brought by the plaintiff.  She seeks an order of mandatory injunction to compel the defendants by themselves and their agents to expunge the plaintiffs name from the third Defendants (Credit Reference Bureau) database, and in the alternative certify the main suit urgent and to be heard on priority basis.

2.       In her grounds and affidavit in support, the applicant states that there is no basis upon which her name is listed in the third defendants database as she did not owe the second defendant any debt at the time her name was listed, and such listing has continued to cause her financial suffering and loss. The applicant deposes that  she has no account with the second defendant nor a loan facility with the said second Defendant.  It is her disposition that a third party by name Simon Karogha Njoroge fraudulently used her documents and acquired a loan facility from the first defendant on or about the 23rd July 2012 and also to open an account with the said institution.  She blames the first defendant for not exercising due diligence and extending a loan to the said Simon  Karogha Njoroge that he was unable to pay.  For those reasons      she seeks an order to compel the third defendant to remove her name from its database.

3.       The 3rd Defendant, Credit Reference Bureau filed grounds of opposition to the application on the 19th June 2014 and raised grounds that there is no allegation of the third Defendant having acted in bad faith towards the plaintiff while discharging its mandate pursuant to Credit Reference Bureau Regulations 2013, and that it is an agent of the Central Bank of Kenya licenced under the Banking Act Chapter 488 Laws of Kenya and therefore not directly liable to actions – performed in good faith. It is further stated that the claim against it is time barred under Section 31(3)of theBanking Act and Regulation 19of theCredit Reference Bureau Regulation 2013.

4.       The third defendant submits that it will only remove the applicants name from its database after the forgery allegations against the plaintiff are confirmed or otherwise by a court of law.

The second Respondent, Industrial Credit Bank Limited opposed the application by its Replying Affidavit filed on the 30th May 2014 and states that the plaintiff applied for a loan from the second respondent that was granted and disbursed, that the plaintiff defaulted in repayments causing the bank to refer the default to the third defendant in good faith and pursuant to the statutory obligations under the Banking Act to enquire and investigate into the truth of the allegations. To that extent, it was its submissions that the bank only recognises the applicant as its customer and it is not  liable for acts committed by the applicant's agents or servants.

5        The court has considered the parties pleadings, application and affidavit evidence by the parties.

The suit subject of the application dated 7th March 2014 was instituted by the plaintiff against all the defendants and sought for mandatory injunction against the second defendant and/or its agents to expunge the plaintiffs name  from the second defendants database and general damages for losses incurred upon alleged fraudulent dealings by the defendants.

Each of the defendants denied the fraudulent dealings.

6.       From the above circumstances linking the Defendants to negligence and loss upon which the plaint and cause of action are based, it would be improper to expunge the applicant's name from the proceedings.  Strict proof of the allegations of negligence attributed to defendants, in the courts view, are subject to strict proof, and the only mechanism of such proof is through a full trial when evidence may be adduced to exonerate each party from the allegations of  fraud and negligence.

For those reasons,  the court finds that the application dated 17th  March 2014 is unmerited.

7.       To speed up the process towards having the case listed for hearing, parties are urged to  take the necessary steps to have the case confirmed ready for hearing and determination. Numerous applications no doubt slow down the wheels of justice towards expeditious disposal of cases.

The respondents shall have the costs of the application.

Dated, signed and delivered in open court this 21st  day of April 2016

JANET MULWA

JUDGE