[2005] KEHC 908 (KLR)
The court found that the Plaintiff had established, on a balance of probabilities, that the Defendant received Kshs.1,060,611.25 on behalf of the Plaintiff and failed to account for or remit the same, instead converting it to his own use. The Plaintiff's evidence, including documentary records prepared and signed by...
Source-derived case information.
- Citation
- [2005] KEHC 908 (KLR)
- Parties
- Plaintiff: Sansora Investments Limited; Defendant: Bernard Makori
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 892 of 1998
- Procedural Posture
- Civil Suit / Judgment
- Outcome
- judgment for the plaintiff
- Legal Topics
- Breach of Fiduciary Duty, Conversion of Funds, Managerial Liability, Recovery of Debt
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sansora Investments Limited
Plaintiff
Bernard Makori
Defendant
Procedural Posture
Civil Suit / Judgment
Legal Issues
- 1 Whether the Defendant, as Manager, received and failed to account for Kshs.1,060,611.25 belonging to the Plaintiff.
- 2 Whether the Plaintiff is entitled to recover the said sum from the Defendant.
Ratio Decidendi
The court found that the Plaintiff had established, on a balance of probabilities, that the Defendant received Kshs.1,060,611.25 on behalf of the Plaintiff and failed to account for or remit the same, instead converting it to his own use. The Plaintiff's evidence, including documentary records prepared and signed by the Defendant, was unchallenged and credible. The Defendant's mere denial in his defence, without attending the hearing or providing evidence, was insufficient to rebut the Plaintiff's case. Accordingly, the Defendant was held liable for the amount claimed, together with costs and interest.
Court Disposition
judgment for the plaintiff
Orders
- Judgment entered for the Plaintiff against the Defendant for Kshs.1,060,611.25.
- Defendant to pay costs of the suit.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI Civil Suit 892 of 1998
SANSORA INVESTMENTS LIMITED ………………...….……….. PLAINTIFF VERSUS BERNARD MAKORI ………………………..…………….……… DEFENDANT
JUDGMENT
At the material time in 1995 and 1996, the Plaintiff owned and operated the “Bata Shop” along Kimathi Street in Nairobi. It hired the Defendant as its Manager to operate the said shop. As Manager, it was the Defendant’s duty to receive money from customers on account of sales, and to deposit the same promptly in the Plaintiff’s bank account.
The Plaintiff found that on diverse dates between 1st July, 1995 and 30th September, 1996, the Defendant received sale proceeds amounting to Kshs.1,060,611. 25 on behalf of the Plaintiff but failed to bank the same or deliver it to the Plaintiff. The Plaintiff demanded payment, and upon the Defendant’s refusal to pay, brought this action for recovery of the aforesaid amount.
Although duly served, the Defendant chose not to attend the hearing. However, he did file a defence in which he merely denied everything, except the fact that he was indeed the Plaintiff’s Manager at the aforesaid shop at the relevant time.
At the hearing, which proceeded in the absence of the defendant, the Plaintiff’s only witness, Mr Benjamin Kimutai Yator, testified that he was the Plaintiff’s Internal Auditor/Accountant at the material time, and was familiar with this case. He testified that the Defendant was the Plaintiff’s Manager at the Bata Shop on Kimathi Street, and was overall in charge of managing the shop, including sales collection and banking.
In the course of his duties as internal auditor of the company, he found, in the years 1995 – 1996, that there was a shortfall of Kshs.1,060,611. 25 between the amounts received at the shop, and the amounts actually banked. To substantiate the shortfall, the witness produced two bundles of documents – Daily Sales Summaries (including NRC Cash Receipts) (P Exhibit 1) and bundle of banking slips together with bank statements (P Exhibit 2). The sales summaries indicate receipts of Kshs.14,553. 981. 25 while the actual amount deposited is Kshs.13,493,370/= leaving a balance of Kshs.1,060,611. 25. These documents, P Exhibit 1 and P Exhibit 2 were actually prepared and signed by the Defendant.
It is, therefore, very clear to me, and the Plaintiff has established on a balance of probability, that indeed the Defendant received, on behalf of the Plaintiff, the said sum of Kshs.1,060,611. 25 and failed to account and pay for it, and converted to his own use, and that he is liable to the Plaintiff in that amount.
Accordingly, I enter Judgment for the Plaintiff against the Defendant for Kshs.1,060,611. 25 together with costs and interest at court rates.
Dated and delivered at Nairobi this 15th day of November, 2005.
ALNASHIR VISRAM
JUDGE