https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/242

New Titanic Jacaranda General Spares v Chepchirchir (Commercial Case E075 of 2026) [2026] KEMC 242 (KLR) (7 July 2026) (Judgment) Neutral citation: [2026] KEMC 242 (KLR) Republic of Kenya In the Malaba Law Courts Commercial Case E075 of 2026 AZ Ogange, RM July 7, 2026 Between New Titanic Jacaranda General Spares Claimant and Sheila Chepchirchir Respondent Judgment 1.Vide a statement of claim dated 7th May 2026 and filed in court on 8th May 2026 the Claimant prays for judgment in its favor for the sum of Kshs. 305,280/= together with costs and interest from 30th April 2026 when the same fell due. 2.The circumstances leading to the filing of this case are that on diverse dates between 1st January 2026 and 2nd February 2026, the Respondent being a chief cashier of the Claimant misappropriated company’s funds and/or sold and failed to remit sale proceeds amounting to Kshs. 165,600/= prompting the Claimant to incur additional expenses of Kshs. 90,000/= for external auditing to ascertain the loss therein. That despite the Respondent undertaking to liquidate the sums therein in three monthly installments, she has failed to do so and the Claimant seeks the reliefs as enumerated in the Statement of Claim. 3.The suit is opposed vide the Respondent’s Statement of Response dated 29th May 2026 denying misappropriation of funds and that without prejudice to the foregoing the only commitment that existed between the Claimant and the Respondent was for payment of Kshs. 60,000/= which the respondent agrees to despite the same having been obtained under coercion. That the Claimant had already deducted Kshs. 30,000/= from the Respondent’s salary and if any money is owing to the Claimant the same amounts to Kshs. 30,000/= only. That the Claim of Kshs. 90,000/= is not supported by any receipt and therefore unjustified. 4.This matter came up for hearing on 17th June 2026 of the Claimant’s case where the Claimant’s Director one Stephen Kamau Nganga testified as CW1 and the Auditor one Alarcon Kepha testified as CW2. The matter came up for further hearing of the Respondent’s case on 19th June 2026 when the Respondent testified on her own behalf. 5.At the close of the Respondent’s case, parties were granted leave to file submissions and the court reserved the matter for judgment on 7th July 2026. Both counsel for the Claimant and the Respondent have filed submissions which I have read and considered. 6.Having considered the pleadings filed by parties, evidence tendered and the submissions on record, the issues falling for determination are whether the Claimant proved its claim and the extent of liability if any, against the Respondent. 7.The Respondent admitted executing the undertaking dated 3rd February 2026. Her attempt to deny liability on the grounds of forgery and alleged non-involvement in the alleged misappropriation was not supported by any documentary evidence including the alleged report made to the police or any extract of an occurrence book. Allegations of coercion were neither particularized nor proven. Mere allegations, without proof cannot displace a written undertaking voluntarily executed. 8.The small claims court act has no provision for duress and/or coercion and it therefore follows that we revert to the Civil Procedure Rules. The civil procedure rules under Order 2 rule 10(1) of the Civil Procedure Rules provides that a party who relies on duress, coercion, undue influence and like defences must plead them with particularity. It provides as follows:Subject to sub rule 2, every pleading shall contain necessary particulars of every claim, defence or other matter pleading including, without prejudice to the generality of the foregoing-Particulars of any misrepresentation, fraud, breach of trust, willful default or undue influence on which the party pleading relies. 9.The Court of Appeal in Mohamed Ahmed Abdun & another v Mini Bakeries (MSA) Limited MSA CA Civil Appeal No. 88 of 2018 [2019] eKLR went at length to explain the meaning of duress, as follows: 25.The editors of Chitty on Contracts, 13th edition, volume 1 note at paragraph 7-003, that a contract which has been entered as a result of duress may be avoided by the party who was threatened.Duress is broadly defined in Black’s Law Dictionary, 8th edition as:“a threat of harm made to compel a person to do something against her will or judgment”and strictly, as:“the physical confinement of a person or the detention of a contracting party’s property.” 26.In Nabro Properties Limited vs. Sky Structures Ltd (above) this Court adopted an extract from Chesire & Fifoot’s Law of Contract, 8th edition as a correct statement of legal duress sufficient to vitiate an agreement, that:“Duress at common law, or what is sometimes called legal duress, means actual violence or threats to violence to the person i.e, threats calculated to produce fear or loss of life or real harm.” 27.In Pao On vs. Lau Yiu Long [1980] A.C. 614 to which counsel on both sides referred, the Privy Council while accepting that economic duress might be recognized in principle in law insisted:“… that the basis of such recognition is that it must amount to a coercion of will, which vitiates consent. It must be shown that payment made or the contract entered into was not a voluntary act.” 28.In Lynch vs. D.P.P. of Northern Ireland [1975] A.C. 653 Lord Wilberforce expressed that while duress does not destroy the will, for example to enter into a contract, it prevents the law from accepting what has happened as a contract valid in law. In the same case, the court stated that duress does not literally deprive a person affected of all choice but leaves the person affected with a choice between evils. In effect, as noted by the editors of Chitty on Contracts the basis of duress is a combination of illegitimate pressure and absence of practical choice. 29.In the recent decision in John Mburu vs. Consolidated Bank of Kenya [2018] eKLR this Court echoed the words of the Privy Council in Pao On vs. Lau Yiu Long (above) that in determining whether duress is established,“Duress, whatever form it takes, is a coercion of the will so as to vitiate consent. Their Lordships agree that in a contractual situation commercial pressure is not enough. There must be present some fact on which could in law and be regarded as coercion of his will so as to vitiate his consent…In determining whether there was coercion of will such that there was no true consent it is material to enquire whether the person alleged to have been coerced did or did not protest; whether, at the time he was allegedly coerced into making the contract, he did or did not have an alternative course open to him such as an adequate legal remedy, whether he was independently advised; and whether after entering the contract he took steps to avoid it.” 10.This court cannot re write contracts for parties nor relieve a party from a bargain freely entered into unless vitiating factors such as fraud, duress or misrepresentation are specifically pleaded and strictly proven which was not the case here. 11.Consequently, the undertaking for Kshs. 165,600/= with interest of 30% being Kshs. 49,680/= is found valid and enforceable. The alleged undertaking for Kshs. 60,000/= having been denied and not sufficiently proved is rejected. The court further notes that while the Respondent sought to rely on a separate undertaking bearing a lesser amount and executed by herself alone, the same cannot vary the earlier undertaking executed by both parties. 12.It was however not controverted that the Claimant had deducted some of the monies owing to the Claimant Company from the Respondent’s salary in line with the terms of the undertaking. Indeed, under cross-examination, the Claimant conceded that there remained unpaid sums, and the Respondent’s assertion that Kshs. 30,000/= had been deducted from what was otherwise due to her remained unchallenged. This amount must therefore be accounted for and deducted from the enforceable sum. On the claim for the auditor’s fees amounting to Kshs. 90,000/=, the same constitutes special damages which were neither specifically proved nor strictly established and therefore fails. 13.The upshot of my findings therefore is that: -a.Judgment be and is hereby entered for the Claimant against the Respondent for the sum of Kshs. 185,280/=b.Interest on (a) from the date of filing of suit until payment in full; andc.costs of the suit assessed at Kshs. 15,000/=. JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY AT MALABA SMALL CLAIMS COURT THIS 7TH DAY OF JULY 2026.A.Z. OGANGER.M/ADJUDICATORIn the Presence ofMr. Mbugua for the Claimant andMr. Masiga for the RespondentCourt Assistant: Paul Otieno