[2001] KEHC 560 (KLR)
The court found that the plaint did not disclose any cause of action against the defendants because the contract in question was between the plaintiff and Lifescan Inc., and the defendants were not parties to that contract. The doctrine of privity of contract precludes the plaintiff from enforcing contractual rights...
Source-derived case information.
- Citation
- [2001] KEHC 560 (KLR)
- Parties
- Plaintiff: Alsafra Health Care Ltd.; Defendant: Kam Pharmacy Ltd.; Defendant: Kam Pharmacy (Westlands) Ltd.; Defendant: Kam Pharmacy (Harambee Avenue) Ltd.
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 261 of 2001
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Plaint
- Outcome
- plaint struck out with costs to the defendants
- Legal Topics
- Privity of Contract, Striking Out Pleadings, Cause of Action, Breach of Contract
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alsafra Health Care Ltd.
Plaintiff
Kam Pharmacy Ltd.
Defendant
Kam Pharmacy (Westlands) Ltd.
Defendant
Kam Pharmacy (Harambee Avenue) Ltd.
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Plaint
Legal Issues
- 1 Whether the plaint discloses a cause of action against the defendants.
- 2 Whether the defendants can be held liable for breach of a contract to which they were not parties.
Ratio Decidendi
The court found that the plaint did not disclose any cause of action against the defendants because the contract in question was between the plaintiff and Lifescan Inc., and the defendants were not parties to that contract. The doctrine of privity of contract precludes the plaintiff from enforcing contractual rights or liabilities against the defendants. The court further noted that the plaintiff had not sought to amend the plaint to cure this defect. Consequently, the only available option was to strike out the plaint with costs to the defendants.
Court Disposition
plaint struck out with costs to the defendants
Orders
- The plaint is struck out.
- The plaintiff shall pay the costs of the suit to the defendants.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI COMMERCIAL COURTS CIVIL CASE NO. 261 OF 2001
ALSAFRA HEALTH CARE LTD. ……………………..… PLAINTIFF
VERSUS
KAM PHARMACY LTD. ………..………………….. 1ST DEFENDANT
KAM PHARMACY (WESTLANDS) LTD. ………… 2ND DEFENDANT
KAM PHARMACY (HARAMBEE AVENUE) LTD. … 3RD DEFENDANT
RULING
This application has been brought by the defendants under O. 6 Rule 13(1) (a) of the Civil Procedure Rules to strike out the plaint filed herein by the plaintiff on the ground that it does not disclose a cause of action.
The basis of the defendants’ contention is that the suit is based on an alleged breach by the defendants of a contract to which, the pleadings clearly show, the defendants were not parties. That position is borne out by the averment in paragraph 3, 4 and 5 of the plaint which are as follows:-
“1. That the Plaintiff is a pharmaceutical distributor who was granted sole agency and distributorship of Lifescan Inc.’s products in the Republic of Kenya for valuable consideration;
2. That of the items covered by the sole agency and distributorship agreement are One Touch Basic Glucometers and One Touch Strips;
3. That the Defendants have in breach of the sole agency and distributorship agreement between the Plaintiff and Lifescan Inc . imported, continue to import stocked and continue to stock and distribute Lifescan Inc. One Touch Strips and One Touch Basic Glucometers.”
The averments quoted above disclose that the contract was between the plaintiff and Lifescan Inc. and that the defendants were not parties thereto. In Chitty on Contracts, at paragraph 18-014 (page 911) it is stated:-
“The doctrine of privity (of contracts) means, and means only, that a person cannot acquire rights, or be subjected to liabilities arising under a contract to which he is not a party.” (emphasis mine).
Whether or not the defendants were aware of the contract between the plaintiff and Lifescan Inc. as claimed by Mr. Omosa, learned counsel for the plaintiff is in my view irrelevant. Even if they were aware, that alone does not make them liable. The fact of the matter is that they cannot be made liable under contracts to which they were not parties.
The claim against the defendants as pleaded does not therefore disclose any cause of action. As observed by Mr. James Singh for the defendants, there is no application as of this moment to amend the plaint and consequently, I am unable to determine whether or not an amendment can breathe some life to the action. Given those circumstances, the only option this court has as of now is to allow the application and strike out the plaint with costs. There will be orders accordingly with costs.
Dated at Nairobi this 7th day of March, 2001.
T. MBALUTO
JUDGE