JUDGMENT OF THE COURT
This is an appeal from a decision of the High Court in the exercise of its original jurisdiction. The issues are fairly straight forward and turn on whether TOTAL (KENYA) LTD (the appellant), proved on a balance of probabilities that its goods, the subject matter of this appeal were stolen or lost while in the custody of its transporter, EXPRESS (KENYA) LTD (the respondent), or at the appellant’s premises after delivery.
The facts that gave rise to this appeal are also fairly straight forward. In December 1991, the appellant imported 61 packages of new genuine spare parts from Toyota Tsusho Corporation, Nagoya, Japan. The spares were prepaid and shipped on the vessel “Ocean Competence” which docked at the port of Mombasa on 21st January, 1992. The appellant appointed the respondent, a firm of clearing and forwarding agents to receive, clear and transport the cargo to the appellant’s warehouse in Nairobi.
On 14th February, 1992, verification of the cargo was done at …