New Titanic Jacaranda General Spares v Wanjiru (Commercial Case E072 of 2026) [2026] KEMC 257 (KLR)

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. At the time of writing this judgment, only the Claimant’s Counsel had complied with directions on filing of submissions. I have read and considered those submissions. 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. Central to the Claimant’s case was the evidence of the auditor, who testified that a physical stock taking was done and reconciled against the electronic inventory system revealing stock loss valued at Kshs. 552,904/=. The auditor further clarified that the report contained both items where stock loss was established and items where no discrepancies existed, demonstrating a measured and objective audit process rather than a blanket attribution of loss. In so holding I am guided by the decision of Kagina v Kagina & 2 others [2021] KECA 242 (KLR) where the Court of Appeal held as follows; The Judge also drew inspiration from persuasive jurisprudence on the duties of a court, namely, the decision of the Supreme Court of South Africa in the case of Kunz v Swart 1924 AD 618 and Annama v Chetty 1946 AD 142; Whitehouse v Jordan [1981] 1 W.L.R. 246, HL, at 256, per Lord Wilberforce; Pollivitte Ltd v Commercial Union Assurance Company Plc [1987] 1 Lloyd's Rep. 379 at 386, per Garland J., and Re J (1990) F.C.R. 193, per Cazalet J.; Derby & Co Ltd v Weldon (No.9), The Times, November 9, 1990, CA, per Staughton L.J.; for the cumulative holding/propositions, inter alia, that: in instances in which a court is confronted with issues of admissibility or otherwise of expert opinion evidence, the Court is enjoined to apply caution before accepting and acting on such expert evidence. It should only do so in instances where there is suficient demonstration that the expert opinion is the independent product of the expert’s own work arrived at in a manner uninfiuenced by any extraneous factors as to the form or content. It is also objective and an unbiased opinion, arrived at on matters within the expert’s own expertise, and lastly, that the report contains the truth and nothing but the whole truth. 8. In cross-examination questions were raised regarding the integrity of the Claimant’s system including recommendations for upgrades and existence of CCTV surveillance. This court is however unable to infer from those matters that the audit findings were unreliable. Recommendations for system upgrades, without more, do not amount to proof of systemic failure or manipulation, they merely refiect the practical reality that internal systems are often subject to improvement. A position that was clearly put forth by the auditor who testified as CW2. Equally, while CCTV existed, no footage was produced by the Respondent or any application made to compel its production so as to controvert the Claimant’s evidence. The mere existence of CCTV cannot, without evidentiary follow through displace otherwise credible evidence. 9. The court further attaches considerable weight to the audit findings. It is notable that the Respondent did not tender any independent expert report, forensic stock analysis or technical evidence to challenge or discredit the Claimant’s audit report. Where technical evidence is placed before the court and remains uncontroverted by equally competent evidence, the court is entitled to rely on it. The Respondent herself admitted that the auditor participated in the stock-taking and further admitted being aware of the audit report refiecting that loss during her tenure as shop manager. 10. The Respondent’s defence was that no stock-taking had been conducted prior to her assumption of ofice and that she hadraised concerns regarding pre-existing stock discrepancies which were never addressed. These averments and I reiterate remained unsupported by any documentary evidence. While she contended that the records were left at the Claimant’s premises after her departure, no witness was called to corroborate her account, including those allegedly involved in the initial stock https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/257/eng@2026-07-07 2

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taking. It is trite that he who alleges must prove and that the burden lay upon the Respondent to establish the factual basis of her defence which burden was not discharged. 11. Further, the Respondent admitted that no stock could leave the premises without her signature and acknowledged having been arrested over a missing spare part. While arrest alone does not establish civil liability, it is a relevant surrounding circumstance when considered alongside the audit findings and her admitted control over stock movement. Her admission that the issue leading to her arrest remained unresolved at the Police Station further reinforces the Claimant’s averments that stock loss occurred under her watch. 12. The court is persuaded by the principle in Statpack Industries v James Mbithi Munyao [2005] KEHC 2043 (KLR) where the court opined as follows “Here, in this case, the Respondent did not lead any evidence to connect his injuries or accident to an act or omission on the part of the Appellant. The real cause of the accident was not established. The learned Magistrate ought to have asked herself, as I have repeatedly tried to ask myself, “so what exactly did the employer do or did not do that caused this accident?” And I cannot find the answer in the testimony adduced before the lower court.” 13. Guided by the above authority and applying analogy of reasoning it therefore follows that an employer alleging loss attributable to an employee must establish the same by credible evidence. In the present matter, that burden has been discharged through the audit report, oral testimony and the Respondent’s own admissions. The court finds no basis to discredit the audit findings particularly in the absence of contrary evidence. 14. The court is satisfied that the Claimant has discharged its burden of proof on a balance of probabilities. On the Claim for special damages of Kshs. 150,000/= being the auditor’s fees, the same was specifically pleaded and strictly proved through production of the cheque and oral testimony of the auditor. 15. 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. 868,775.20/= b. Interest on (a) from the date of filing of suit until payment in full; and c. costs of the suit assessed at Kshs. 50,000/=. JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY AT MALABA SMALL CLAIMS COURT THIS 7TH DAY OF JULY 2026. A. Z. OGANGE R.M/ADJUDICATOR 07.07.2026 In the Presence of Mr. Mbugua for the Claimant and Mr. Wanjala for the Respondent Court Assistant: Paul Otieno https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/257/eng@2026-07-07 3

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