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Court condemns epileptic messenger to pay Sh5.5m for losing employer's money after attack

By Kamau Muthoni | Published Wed, August 29th 2018 at 00:00, Updated August 28th 2018 at 23:27 GMT +3

A messenger who lost his employer's money has been ordered to pay Sh5.5 million.

High Court judge Joseph Sergon ruled that Robert Ndaru and his boss, Evans Mburu, pay the amount equally and shoulder the cost of the case.

Mr Ndaru, who was employed by Del Monte Kenya Limited, had been sent to bank Sh6.8 million - in dollars - but allegedly lost the money after suffering an epileptic seizure on the streets of Nairobi in 2004.

Justice Sergon found that Ndaru was reckless for not taking his medicine.

“The defences put forward by the defendants are found to be lacking in merit. I am convinced that the second defendant in the circumstances acted recklessly and carelessly hence he is found liable for negligence,” the judge ruled.

He continued: "In the end, I am satisfied that the plaintiff has proved its claim against both the defendants on a balance of probabilities. Consequently, judgement is entered in favour of the plaintiff."

Del Monte had first pressed criminal charges against Ndaru in which he was charged with the offence of stealing.

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He was, however, acquitted after the court found there was no incriminating evidence against him.

But Del Monte did not stop there. It pursued the messenger and his immediate boss through a civil suit, arguing that Ndaru ought to have taken his medicine to avoid seizures, and sought security to escort the cash.

"The second defendant was supposed to be on anti-convulsion drugs on the day the monies were lost i.e. on December 29, 2004. He knew about his condition and that had he been taking drugs as required he would not have suffered an epileptic seizure,” the company argued.

But Mburu and Ndaru denied any liability. According to Mr Mburu, although he was in charge of banking, the cashier was supposed to arrange for security as the money exceeded Sh500,000.

According to Ndaru, on the fateful day, he was given a company car and ordered to bank the money. He first dropped off a cheque at Barclays Bank then started walking to Commercial Bank of Africa with the money in a bag.

But Justice Sergon found that the arguments by Mburu and Ndaru were not convincing enough for the court to dismiss the case.

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