NAIROBI, Kenya- In a significant legal turn, Absa Bank Kenya and Absa Life Assurance Kenya Ltd have received a reprieve after the High Court set aside a previous order directing them to pay Sh1.2 million in general damages.
This payout was originally awarded to a former client, who alleged he was unlawfully enrolled in an insurance policy without his consent.
Instead, the High Court has adjusted the amount to Sh300,000, deeming it reasonable exemplary damages.
Justice John Onyiego of the High Court in Garissa emphasized that while awarding damages is at the discretion of the trial court, it must align with comparable awards.
He noted, “In the judgment (of the magistrate’s court), I am unable to find any comparable authority in which the trial magistrate anchored his reasoning in coming up with the award.
It follows that the same was not anchored or supported on any specific law or case law.”
Justice Onyiego pointed out that although Absa Bank Kenya and Absa Life Assurance Kenya had wrongfully deducted Sh10,164 from Manjuu Mubarak Oshe’s account, they had rectified this by issuing a refund.
Therefore, he concluded that the exemplary damages should reflect the actual amount wrongfully deducted.
In their appeal, Absa Bank Kenya and Absa Life Assurance Kenya contended that the Magistrate’s court had erred in awarding Mr. Oshe Sh1.2 million, labeling the amount excessive.
They argued that the court failed to consider judicial authorities on quantum and conventional awards for similar cases, leading to an erroneous figure.
Additionally, they highlighted that the loss incurred by Mr. Oshe had been remedied through a consent filed by the parties, meaning no actual loss was sustained.
On the other hand, Mr. Oshe argued that Absa Bank Kenya and Absa Life Assurance Kenya had breached their fiduciary duty by recklessly enrolling him in a fraudulent insurance policy.
He alleged that an employee of the appellants maliciously enrolled him into the life policy insurance scheme and fraudulently executed contract documents to meet profit targets.
Oshe maintained that this reckless and fraudulent behavior warranted exemplary damages.
At the magistrate’s court, Oshe recounted how, on June 4, 2020, he was unlawfully enrolled in Absa’s Life Insurance Protection Plan without his consent.
He revealed that Sh5,082, the premium amount payable for the policy, was deducted from his account on two occasions.
