[2019] KEHC 401 (KLR)
The court found that the plaintiff had proved its claim for goods sold and delivered to the defendants, who were associated companies, as evidenced by invoices, dishonoured cheques, and correspondence, including admissions of indebtedness. The defendants failed to controvert the claim, did not present any evidence,...
Source-derived case information.
- Citation
- [2019] KEHC 401 (KLR)
- Parties
- Plaintiff: Agro Chemical & Food Company Limited; Defendant: Home Express Limited; Defendant: Herald Trading Co. Limited; Defendant: Univac Traders (E.A) Limited; Defendant: African Distillers Limited; Defendant: Zesta Industries Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Commercial Civil Suit 550 of 2014
- Procedural Posture
- Civil Suit / Judgment
- Outcome
- judgment for the plaintiff
- Judges
- DAS Majanja
- Legal Topics
- Goods Sold and Delivered, Company Association Liability, Dishonoured Cheques, Joint and Several Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Agro Chemical & Food Company Limited
Plaintiff
Home Express Limited
Defendant
Herald Trading Co. Limited
Defendant
Univac Traders (E.A) Limited
Defendant
African Distillers Limited
Defendant
Zesta Industries Limited
Defendant
Procedural Posture
Civil Suit / Judgment
Legal Issues
- 1 Whether the defendants are jointly and severally liable for the sum claimed for goods sold and delivered.
- 2 Whether the plaintiff has proved its claim on the balance of probabilities.
- 3 Whether the defendants are associated companies and liable for each other's debts.
Ratio Decidendi
The court found that the plaintiff had proved its claim for goods sold and delivered to the defendants, who were associated companies, as evidenced by invoices, dishonoured cheques, and correspondence, including admissions of indebtedness. The defendants failed to controvert the claim, did not present any evidence, and their defence was unsupported. The court held that the plaintiff was entitled to judgment against all defendants jointly and severally for the sum claimed, together with interest and costs, as the claim was established on a balance of probabilities and the defendants' association and liability were demonstrated by the evidence.
Court Disposition
judgment for the plaintiff
Orders
- Judgment entered against the defendants jointly and severally for Kshs. 5,981,690.00.
- Interest at court rates from the date of filing suit until payment in full.
Full Case Text
Judgment text and source record
50 paragraphs
IN THE HIGH COURT OF KENYA
AT NAIROBI
MILIMANI COMMERCIAL & TAX DIVISION
CORAM: D. S. MAJANJA J.
CIVIL SUIT CAUSE NO. 550 OF 2014
BETWEEN
AGRO CHEMICAL & FOOD COMPANY LIMITED ……. PLAINTIFF
AND
HOME EXPRESS LIMITED …………………........... 1ST DEFENDANT
HERALD TRADING CO. LIMITED …….………..…. 2ND DEFENDANT
UNIVAC TRADERS (E.A) LIMITED …………..…... 3RD DEFENDANT
AFRICAN DISTILLERS LIMITED ……..…….….…. 4TH DEFENDANT
ZESTA INDUSTRIES LIMITED ………………....…. 5TH DEFENDANT
JUDGMENT
1. The plaintiff is engaged in the business of manufacture and sale of neutral alcohol which is used in the manufacture and blending of alcoholic beverages and rectified spirits for industrial and domestic use. The claim against the defendants as set out in the plaint is for goods sold and delivered amounting to Kshs. 5,981,690. 00.
2. The plaintiff’s case set out in the plaint was supported by the evidence of its only witness, Joseph Oduor Andere (PW 1) who testified and produced documentary evidence. The thrust of his testimony was that the plaintiff supplied to the defendants spirits from February 2003. Their business went on well until December 2009 when they had transacted business worth over Kshs. 100 million. After some time, the defendants started issuing cheques which were dishonoured on presentation leaving the amount claimed unsettled as at June 2005.
3. In summary, the goods supplied to the defendants were evidenced as follows;
a. The goods supplied to the 1st defendant.
DateInvoice/Cheque No. Amount
24. 11. 2003 13350 (Invoice) Kshs. 678,000. 00
24. 11. 2003 13351 (Invoice) Kshs. 168,000. 00
1. 8.2003 12664 (Invoice) Kshs. 2,958. 00
17. 12. 2003 00097 (Invoice) Kshs. 588,000. 00
31. 5.2005 0009 (Credit Note) Kshs. 108,800. 00
30. 6.2004 00055 (Cheque) Kshs. 630,000. 00
Sub-total Kshs.2,176,790. 00
b. The goods supplied to the 2nd defendant.
DateInvoice/Cheque No. Amount
23. 7.2004 15466 (Invoice) Kshs. 690,000. 00
13. 8.2004 15620 (Invoice) Kshs. 414,000. 00
4. 4.2004 14590 (Invoice) Kshs. 102,800. 00
Sub-total Kshs.1,206,800. 00
c. The goods supplied to the 3rd defendant.
DateInvoice/Cheque No. Amount
23. 7.2004 100027 (Cheque) Kshs. 263,900. 00
29. 7.2004 15530 (Invoice) Kshs. 460,000. 00
Sub-total Kshs. 723,900. 00
4. In addition, the plaintiff claimed an addition Kshs. 930,000/- from the 1st defendant which had been ordered by the 2nd defendant and which it converted when the consignment was seized by Customers officers and ordered to be returned to the plaintiff on condition that taxes be paid and the consignment be converted to home use. Although, the plaintiff paid the taxes, the 1st defendant did not deliver the product to the plaintiff. In a letter dated 14th March 2006, the 1st defendant admitted that it owed the money and undertook to pay the same.
5. PW 1 testified that despite several demands and correspondence the defendants failed to pay the amount due. The plaintiff added that although the defendants are distinct companies, they are associated and that deliveries, payments and correspondence was often addressed to one or any of the defendants. Despite being distinct companies, the correspondence on behalf of their behalf was answered by the directors of the 1st defendant.
6. The defendants filed a joint defence dated 11th June 2007 in which they denied by association with the plaintiff or that they owed the plaintiff any money.
7. The defendants did not call any witnesses to support their defence. Neither their officers nor the advocates appeared at the hearing. On the day of the hearing their counsel on record applied to withdraw from acting for them but I rejected the application for adjournment.
8. I have considered all the evidence and I find that the defendants were associated companies and there is correspondence showing as much. The debt is well supported by documents and there is indeed admission of indebtedness. The defendants also issued cheques that were dishonoured. When the plaintiff issued demand letters detailing the claims but the defendants’ response did not answer the claim or make payment as demanded.
9. Since the claim is uncontroverted and proved on the balance of probabilities, it is allowed.
10. I enter judgment against the defendants jointly and severally for the sum of Kshs. 5,981,690. 00 together with interest at court rates from one date of filing suit until payment in full.
11. As regards costs, I note the matter ought to leave been filed in the subordinate court. I award costs of Kshs. 220,000 exclusive of court fees and disbursements to be certified by the Taxing Officer.
DATEDand DELIVERED at NAIROBI this19thday of DECEMBER,2019.
D. S. MAJANJA
JUDGE
Court Assistant: Mr. M. Onyango
Mr. Wanjohi instructed by Theuri Wanjohi and Company Advocates for the plaintiff.