[2004] KEHC 1547 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU CIVIL APPEAL NO 283 OF 2000

ACACIA SUPERMARKET LIMITED ……………..…… APPELLANT

VERSUS

FARMER’S CHOICE LIMITED ……………………… RESPONDENT

JUDGMENT

In June, 1998 the Appellant (Plaintiff in the lower court) filed an action against the Respondent (Defendant in the lower court) to recover Kshs.347,749. 40 being the amount the Respondent allegedly overcharged the Appellant for goods supplied on diverse dates between July 1994 and April 1998. The Appellant claimed that the overcharging arose from a deliberate attempt by the Respondent’s salesman to defraud the Appellant through short-supplies of goods.

The lower court (Hon. Karanja, Principal Magistrate) found that the Appellant had not proved its claim on a balance of probability and dismissed the case.

Aggrieved by that decision, the Appellant has appealed to this court. The following are listed as the grounds of appeal.

1. The Learned Magistrate erred in law in holding that it was the Plaintiff’s responsibility to have the Defendant’s employee prosecuted for stealing, and further that in the absence of such prosecution and conviction, there was no sufficient evidence to enter judgment against the Defen dant in favour of the Plaintiff.

2. The Learned Magistrate misdirected himself in not finding the Defendant vicariously liable for the actions of its employee.

3. The Learned Magistrate erred in law and fact in holding that since the amounts claimed by the Plaintiff differed with the amounts and particulars in the documents tendered as evidence by the Plaintiff, the Plaintiff’s entire claim must be dismissed.

4. The Learned Magistrate erred in law in not finding for the Plaintiff, in the face of overwhelmin g evidence which was not controverted by the Defendant.

5. The Learned Magistrate misdirected himself by blaming the theft by the Defendant’s employee on the Plaintiff’s poor record keeping.

Mr Wanjama, counsel for the Appellant, argued before this court that the lower court erred in believing that the Appellant had a greater duty, than it discharged, to have the salesman arrested and charged; that the Respondent was vicariously liable for the acts of its servant; that it was wrong to disallow the entire claim because not all the disputed vouchers were available, and also because of the discrepancy in the time period when the loss arose; that it was wrong to blame the loss on the Appellant’s poor book keeping even when the salesman was arrested (although not charged) for the wrong doing.

Ms Nyagah, for the Respondent, argued that the Respondent could not be held liable for the unlawful acts of its servant; that the loss had occurred because of the Appellant’s poor accounting system; that the Appellant had failed to prove its case, and certainly had failed to show fraud of which the Respondent knew or contributed to the same.

Having perused the record, and heard counsels, I am satisfied that the Appellant had not proved its case in the lower court on a balance of probability. The Principal Magistrate had the opportunity of hearing all the witnesses, and concluded, among other things, that:

“Given the conflict in the period of time that the alleged loss occurred and the fact that no actual evidence of forgery was ever tendered herein against the defendant’s salesman, it would be safe to hold that the Plaintiff has not even on a balance or probability established the al leged loss or misappropriation of the claimed amount.”

The above finding is consistent with the evidence adduced before the court. For example, there was evidence to demonstrate that:

1. all the deliveries made to the Appellant, during the period of the alleged loss, as pleaded in the Plaint, had been correctly accounted for, except for one receipt.

2. even with respect to that one receipt, the discovery was made some 40 days later because of the Appellant’s poor accounting system.

3. the period of time when loss was alleged have occurred as per the pleading, contradicted sharply with the evidence before the court.

4. the Plaintiff was unsure of the actual loss suffered; that there was no evidence, other than P Exhibit 1, to show the actual loss; and

5. there was no evidence to show that the salesman committed the criminal acts with the knowledge and/or connivance of the Defendant.

It is trite law that the Plaintiff, who alleges, must prove his case on a balance of probability. This he did not do, and even with respect to that one receipt that showed a discrepancy of some sort, the magistrate correctly found that the Defendant employer could not be held vicariously liable for the criminal acts, if any, of his employee. In any event, no such criminal acts were proven, the employee not having been charged.

In the result, this appeal fails and is dismissed with costs to the Respondent.

Dated and delivered at Nairobi this 22nd day of April, 2004.

ALNASHIR VISRAM

JUDGE