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Suntra, registrar to return investor’s EABL shares
Judges agreed with the High Court that Bentley-Buckle did not contribute to the loss of the shares. The judges said the restoration should be completed within 90 days from the date of the judgment.
The Court of Appeal has affirmed a decision directing Suntra Investment Bank and Custody & Registrars Services to restore to a British family 99,100 shares of East African Breweries Plc (EABL) that were fraudulently sold by an imposter in 2007.
A bench of three judges upheld the High Court finding of negligence on the part of two firms and said the court rightly directed the two firms to restore the securities to the estate of Anthony William Bentley-Buckle who died in 2010 after retiring to his home in Hampshire in the UK. The shares have a current market value of Sh21.2 million.
“We, therefore, affirm the learned judge’s conclusion that both the appellant (Suntra) and the 2nd respondent (Custody & Registrar Services Ltd), were negligent toward the estate and that liability was properly found against them,” Justices Francis Tuiyott, Joel Ngugi and George Odunga said in a judgment issued on October 3.
The judges agreed with the High Court that Bentley-Buckle did not contribute to the loss of the shares. The judges said the restoration should be completed within 90 days from the date of the judgment.
“For avoidance of doubt, each party shall do all acts and procure all consents necessary within their respective systems to effect full restoration in the CDSC/EABL register,” said the judges.
In a win for the two firms, the court quashed an award of Sh4 million slapped on each of the firms for general damages. The High Court had later ‘corrected’ and enhanced the amount to Sh10 million each.
The Court of Appeal said the family of Bentley-Buckle, represented by his children Nicholas Bentley-Buckle and Deborah Mary did not prove the damages and it was also inconsistent with the restorative order which was granted.
Bentley-Buckle was a wealthy British naval officer, who lived in Kenya in early 1970s but retired back to Hampshire in 1975 aged 55. The family said he never disposed of his EABL shares during his lifetime but they discovered his shares had been immobilised and sold.
They said once he relocated to the UK, Bentley-Buckle did not return to Kenya, save for brief visits in the 1980s. The court heard that when the executors contacted the Registrar, they were told the shares had been immobilised and sold in 2007.
They contended the Kenyan passport was a forgery, the address used in the immobilisation papers was not the deceased’s and that neither the deceased nor his estate opened a CDS (Central Depository System) account or authorised any sale.
The family accused Suntra as well and Custody & Registrars Services for failing in their duty when it sent a consolidated share certificate for the deceased’s EABL shares to a postal address that did not belong to him.
Evidence tabled in court showed that an imposter who immobilised the shares, presented himself to Suntra and completed the requisite CDS-1 form, accompanied by identification documents.
The imposter presented a passport, which was later found to be a forgery. The stockbroker said at that time it lacked the technical systems or capacity to authenticate the genuineness of passports and other identification documents.
“We agree with the learned Judge that each actor fell short of the standard of reasonable care,” said the judges.
