A woman has lost her fraud claim against a car dealer, but her former partner has been ordered to repay Sh350,000 from the sale of her vehicle.
Zainabu Waithira Njehia had sued Royal Autoworld International Limited and Moses Mbugua Mungai, seeking a refund of Sh1.35 million, general damages for fraud, mental anguish and loss suffered, alongside costs and interest.
She claimed the defendants conspired to dispose of her Toyota Auris, registration number KDH 880T, with Mungai retaining the proceeds.
The Mombasa magistrate’s court heard that on October 25, 2022, Njehia entered into a sale agreement with Royal Autoworld to purchase the vehicle for Sh1.8 million.
She traded in her Toyota Ractis, valued at Sh750,000, and paid a further Sh600,000 in cash, leaving a balance of Sh450,000 payable by November 6, 2022.
She defaulted on the payment and the vehicle remained with the dealer.
Njehia pleaded that the two defendants disposed of the car using an affidavit falsely attributed to her and a fraudulent email, alleging that Mungai hacked her email account, impersonated her, and, after paying Sh450,000 to the dealer, retained Sh750,000 from the sale.
The dealership did not dispute the original transaction but maintained that after Njehia defaulted, she ultimately informed the company the vehicle would be sold and the outstanding balance paid from the proceeds.
“The first defendant [Royal Autoworld] relied upon WhatsApp communications, an email allegedly originating from the plaintiff's email address, and two affidavits dated November 12, 2022,” the court heard.
“The first defendant's position is that it did not procure the purchaser and did not receive the Sh1.2 million sale proceeds. Its interest was confined to the outstanding Sh450,000, which it subsequently received.”
Mungai admitted he and Njehia had previously been in a romantic relationship and had lived together.
He also admitted procuring a purchaser for the vehicle, selling it for Sh1.2 million, and depositing the entire amount into his bank account.
He claimed to have paid Sh450,000 to Royal Autoworld, Sh100,000 as brokerage fees, remitted Sh300,000 to his ex-partner on November 25, 2022, and Sh100,000 on January 5, 2023, while retaining Sh250,000 against an alleged debt of Sh3.4 million which he said Njehia owed him.
Senior resident magistrate Emily Mwamuye found that Njehia had not proved fraud or conspiracy against either defendant to the required standard.
“The plaintiff's case was that the affidavit of November 12, 2022 was forged and the email relied upon by the defendants was fraudulent or generated after her email was hacked. Those are serious and specific allegations,” the magistrate stated.
“The difficulty is that the evidentiary record does not contain forensic evidence establishing either proposition.”
The court noted the absence of forensic evidence or testimony from a handwriting expert to establish forgery.
“No document examiner was called to compare the disputed signature with an admitted specimen."
"Neither was the advocate before whom the disputed affidavits purportedly came into existence called to disown the commissioning or explain the circumstances in which the documents were prepared."
"The absence of a handwriting expert or the commissioning advocate is not automatically fatal; fraud may be proved by other cogent circumstantial evidence. Nevertheless, where the principal question is whether a signature or electronic communication was fabricated, the court must consider the quality of the evidence actually presented.”
The court found that Royal Autoworld received only the Sh450,000 contractually due to it and dismissed the claim against the dealer.
The court also declined to award general damages for fraud and mental anguish, finding the fraud claim unproven.
However, the magistrate found that Mungai failed to account for Sh350,000 of the proceeds.
Mungai was ordered to pay Sh350,000 with interest at court rates from the date of filing the suit and to bear the plaintiff's costs.
Each party was directed to bear its own costs regarding the claim against Royal Autoworld.
