Judge nullifies 'unlawful' ruling that cost NCBA bank Sh2.4 million

Justice Millicent Odeny of the Environment and Land Court during the War Memorial Hospital case on January 23, 2024.[Kipsang Joseph, Standard]

The Environment and Land Court has reversed a decision by the magistrate court that saw NCBA Bank lose over Sh2.4 million to a private developer in a defamation and land case.

Principal Magistrate Ruth Kefa had, on November 23, 2023, awarded Nelly Chepkemoi Sh2.4 million as damages and compensation for defamation.

She also ruled that Chepkemoi was the owner of a prime property in Nakuru worth over Sh13.5 million and barred NCBA from advertising the sale of the land, allegedly used to secure a loan.

However, Judge Milicent Odeny reversed Kefa’s decision, ruling that it was flawed, biased and unlawful.

Odeny ruled that Chepkemoi did not produce any evidence to prove that she was defamed by the bank and that she suffered psychological and mental anguish, emotional distress, bodily harm and sickness.

The judge ruled that there was no medical report or testimony by a doctor proving the purported illness.

The court also noted that despite Chepkemoi claiming that she was defamed when the bank allegedly advertised the sale of the disputed property, she produced no evidence.

“The court cannot assume or presume evidence, as it is incumbent upon he who alleges to prove,” insisted Odeny.

Odeny maintained that Chepkemoi did not attempt to prove her case, despite raising serious allegations which needed proof of ownership, the root of the title and medical evidence.

She questioned the magistrate’s integrity in siding with Chepkemoi without evidence.

“Where did the trial magistrate, Kefa, get the evidence that the respondent had suffered emotional distress, bodily harm and mental anguish?” wondered Odeny.

“How did the trial magistrate conclude that the respondent had been defamed and, hence, was entitled to damages?” questioned Odeny.

According to Odeny, Kefa unlawfully ruled that Chepkemoi was the owner of the disputed land, without any proof of ownership.

“Looking at the pleadings and proceedings in the lower court, the respondent (Chepkemoi) claimed that she was the registered owner of the land but did not produce any evidence to prove the same,” ruled Odeny.

According to the judge, it was unprocedural for Kefa to consider the documents that Chepkemoi listed but did not produce as exhibits before the court.

“Documents filed and not produced as exhibits are like a defence filed with no witness to tender any evidence. It does not add any evidential value to the case,” ruled Odeny.

Odeny ruled that Kefa erred in fact and law by ruling in Chepkemoi’s favour, yet she failed to prove her case on a balance of probabilities.

“This is a case where the court must interfere with the trial court that came to a flawed and wrong conclusion,” ruled Odeny.

She allowed the appeal by the bank, set aside Kefa’s judgement and decree, dismissed Chepkemoi’s case against the bank and awarded the bank costs.

In Kefa’s verdict that was reversed, she declared Chepkemoi as the lawful owner of the disputed land and ruled that the bank’s action of advertising the land for sale was defamatory.

She ruled that the bank’s charge against the land was illegal and barred the bank from publishing notice of sale of the land.

Even without proof, Kefa awarded Chepkemoi Sh1 million for defamation, Sh700,000 as damages for psychological and mental anguish and Sh700,000 as aggravated and exemplary damages.

The disputed land was offered as security for a loan of Sh13.6 million.