While shops are not helpless against theft, neither are customers defenceless against overreach.
The delicate balance between retailers' rights to protect their merchandise and consumers' constitutional protections has come under judicial scrutiny in a series of recent court rulings across Kenya.
In Kenya's bustling retail sector, where millions of transactions occur daily, the emerging cases of shoplifting collectively sketch the evolving rules of engagement between those who sell and those who buy.
Recent court verdicts affirm that while shops are not helpless against theft, neither are customers defenceless against overreach—and that in this high-stakes dance, the law increasingly insists both parties mind their steps.
These cases highlight the legal consequences retailers face for improper handling of shoplifting suspicions, while also demonstrating that genuine theft does not go unpunished.
In a landmark ruling, the High Court in Kiambu last week penalised Cleanshelf Supermarket Limited Sh500,000 for unlawfully searching a female shopper suspected of shoplifting. The incident occurred in June 2023 at the retailer’s Ruaka branch, where an attendant conducted a public search—despite finding no stolen items.
A CleanShelf Supermarket branch. A court recently ruled that the supermarket violated a shopper’s constitutional rights to dignity, privacy, and consumer protection by conducting a public search after they suspected her of shoplifting.
The shopper, deeply humiliated, filed a lawsuit seeking Sh4 million in damages, citing reputational harm and psychological trauma.
She recounted how management dismissed her complaints with only a cursory apology, ignoring her formal demand letter.
In her affidavit, she lamented living with the stigma of being labelled a thief, an ordeal that left her emotionally scarred.
The court ruled that Cleanshelf violated the shopper’s constitutional rights to dignity, privacy, and consumer protection. The court noted that the search breached the supermarket’s own policy, which mandates private searches supervised by managerial staff.
“The respondent bears the duty to protect its customers from humiliation and embarrassment and it is clear that the Petitioner was exposed to a search that was carried out in an improper manner thereby infringing on her rights as enshrined in the Constitution,” the judgment read.
The ruling reinforces retailers' legal obligations to handle suspected theft discreetly and respectfully, avoiding public shaming unless absolutely necessary.
At the capital city Nairobi, another shopper’s nightmare unfolded at Village Market’s upscale retail shops.
The High Court case saw a foreign embassy employee awarded Sh600,000 after being falsely accused of stealing a credit card and mobile phone at a shop within Village Market.
The plaintiff, a procurement supervisor, was detained for two hours, handcuffed, and paraded before shoppers—including diplomatic colleagues—before being hauled to Gigiri Police Station.
He testified that security officers neither sought his explanation nor verified his identity before arresting him.
He testified that his arrest happened in the presence of many shoppers, diplomatic staff and businesspeople, some of whom knew him as he was a regular shopper at the village market.
Worse still, an attendant loudly declared in Kiswahili, “We have now arrested one of the credit card thieves. He will suffer the consequences”—words the plaintiff argued painted him as a fraudster and shoplifter.
The retailer defended itself by citing an apology email, but the court dismissed this as insufficient. The court criticised the defendant’s “extremely nonchalant attitude”, noting their failure to follow up or show genuine remorse.
“The defendant’s staff with due respect exhibited an extremely nonchalant attitude right up to the time of the trial. After causing the damage, they admitted that no follow up was made on the case,” said the court.
While shops are not helpless against theft, neither are customers defenceless against overreach.
Kenyans abroad have not been spared either. A prosecutor from the Office of the Director of Public Prosecutions (ODPP) was dismissed in 2020 after allegedly shoplifting at a store in New Mexico, USA.
Court documents revealed that she had attended a legal conference before visiting Burkes Stores to buy a suitcase. During checkout, she “accidentally” left some items unpaid in her handbag.
Though she blamed a cashier’s scanning error, the Employment Court dismissed her suit against termination. She wanted damages, reinstatement and a declaration that the ODPP’s action for dismissal was unprocedural, unfair and unreasonable.
The claimant denied shoplifting and stated that the payment was only made for what was prompted by the teller. The claimant had said this was attributed to a mistake on the part of the teller who was scanning the items. She said there was enough money in the debit and credit cards.
She said the explanation was rejected and there was no one to help. In addition, the security made it a bigger issue and called the host. In a sequence of events, the plaintiff was told to leave the conference and leave for home.
On return to Kenya, the employee was summarily suspended without any hearing or evidence. It was contended that this was unfair, unlawful, and unprocedural as there was no extrinsic evidence or independent investigation.
Rejecting the petitioner’s plea for damages, the court said in this case the employer was not required to prove the allegations against the petitioner beyond reasonable doubt, for instance through the CCTV footage from the store in question.
“In total sum, it is this court’s finding that the petitioner has not demonstrated the manner in which the respondent (ODPP) violated her constitutional rights as alleged,” said the court.
Mixed Outcomes: When courts side with retailers
Not all rulings favoured shoppers. Wamumbi Supermarket Eldoret last September successfully appealed a Sh230,000 damages award after a magistrate court had ruled in favour of a customer acquitted of stealing household goods.
The High Court overturned the decision, finding no malice in the prosecution.
The customer sued for damages after being acquitted in the criminal case, with the trial magistrate taking issue with the prosecution for failing to avail the CCTV footage and the items said to have been found with the shopper.
“The court has found that from the evidence and the facts, there was a reasonable and probable cause to institute the charges against the shopper. This court finds that the circumstances of the case do not reveal the existence of malice,” ruled the High Court. “The shopper does not claim to have been mistreated or mishandled in the process of his arraignment and charging.”
Similarly, in Kabarnet, a woman initially sentenced to two years for stealing goods worth Sh120 at Economy Supermarket Ravine was released after four months when the High Court deemed her punishment excessive.
“I find that the sentence of two years imprisonment for the theft of the goods valued at Sh120 is excessive. I consider that she has been sufficiently punished for her criminal act of shoplifting,” said the High Court
However, records showed she had previously been implicated in a Sh40,350 theft at the same store—though CCTV evidence was never produced in court.
Unfair Dismissal: Supermarket staff also at risk
Employees, too, face repercussions—sometimes unjustly. In Nyeri, Maathai Supermarket was ordered to pay a former worker Sh52,000 for unfair dismissal after accusing him of aiding theft by tampering with CCTV footage.
The Labour Relations Court ruled that he was never given a fair hearing or informed of the charges against him.
These cases underscore Kenya’s evolving jurisprudence on retail theft. While courts penalise businesses for rights violations, they also recognise retailers’ need to combat theft—provided due process is followed.
The rulings serve as a cautionary tale: retailers must balance vigilance with respect for constitutional protections, lest they face costly legal consequences.
For shoppers, the message is equally clear—genuine theft carries penalties, but wrongful accusations can prove just as damaging to businesses unprepared to defend their actions in court.
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