https://new.kenyalaw.org/akn/ke/judgment/scc/2026/57

Chesang v Ngetich & another (Commercial Case E036 of 2026) [2026] SCC 57 (KLR) (30 June 2026) (Judgment) Neutral citation: [2026] SCC 57 (KLR) Republic of Kenya In the Small Claims Court at Narok Commercial Case E036 of 2026 EM Mutuku, RM June 30, 2026 Between Millicent Chesang Claimant and Benard Ngetich 1st Respondent National Potato Council Of Kenya 2nd Respondent Judgment 1.The Claimant instituted this claim vide the statement of claim dated 10th April 2026 seeking judgment against the Respondents jointly and severally for Kshs. 990,000.00, special damages, interest at court rates from November 2025 until payment in full, costs of the claim, and, any other or further relief the court may deem just and expedient to grant. 2.The Claimant has averred that she purchased 18 bags of certified potato seeds from the Respondents at Kshs. 72,000.00 represented as fit for planting but later turned out to be defective and largely non-germinating resulting in crop failure. The Claimant incurred production costs of Kshs. 125,000 and suffered loss of projected yield of Kshs. 475,200 together with consequential loss relating to loss of use of land all totalling to Kshs. 990,000. It is also averred that the claim is founded on breach of the implied conditions as to fitness for purpose and merchantable quality under section 16 of the Sale of Goods Act and negligence on the part of the Respondents. 3.The 1st respondent filed a response dated 11th May 2026 generally denying the claim. 4.The 2nd respondent filed a response dated 6th May 2026 generally denying the claim. it is averred that the 2nd respondent is an NGO and does not sell potato seeds. It only provides a digital platform for farmers and registered business to interact. Farmers buy potato seeds from the registered businesses through the platform. The businesses are licensed by Kenya Plant Health Inspectorate Services (KEPHIS). The 2nd respondent only displays the seeds and agro-chemicals. Viazi Kings Transporters then transports and delivers the seeds to the farmers. The farmer is cannot and is not licensed to sell the potato seeds. 5.The proceeded for hearing on 29th May 2026 and the parties’ cases are summarised below. Claimant’s Case: 6.CW1 was the Claimant herself. Se stated that she is a potato farmer in Narok south. She adopted her statement filed on 10th April 2026. She also produced the documents in the list dated 10th April 2026 as exhibit 1 – 10. She stated that she spent a lot of money only to harvest one bag of potatoes which continued rotting. She purchased the potato seeds from the 1st respondent who had in turn obtained the seeds from the 2nd respondent. she has been a famer for over 20 years and has been purchasing certified seeds through the 1st respondent. she notified the Respondents that the seeds were bad and they visited the farm. They also had meetings at KEPHIS in Nakuru with the Respondents and Viazi Kings where they agreed to compensate her 40% but have not. She planted 18 bags and one bag yields about 10 to 12 bags of potatoes. She expected to harvest 180 bags of potatoes and considering that the market price per bag at the time was Kshs. 3,500 she would have earned Kshs. 500,000. She also expended Kshs. 125,000 in preparing and cultivating the farm, purchasing fertilizer pesticides and seeds, transporting seeds, and labour. Agricultural officers assessed the farm and advised her not to plant potatoes on the land for the next 2 years. Since she is only a potato farmer the land will remain uncultivated for the two years. 7.On cross examination she confirmed that she only purchased the seeds from the 1st respondent because they were certified. That the seeds were bad because they were drying and rotting after planting. The 2nd respondent was willing to compensate her 40%. That when she purchased the seeds at the store they were good but was informed that at the time of planting some were rotten. 8.CW2 was Amos Bett, an agricultural officer. He confirmed having prepared the report dated 20th February 2026 and produced it as Claimant’s exhibit 4. He visited the farm. The Claimant had planted potatoes on one acre of land. The plant population was low. The leaves of some of the crops had dried. A random count of the underground tubers revealed rotten tubers with white oozes. The tubers were also small. He suspected a bacterial infection. Upon assessment he found that 70% crop damage. Based on the farmer’s history, farm condition and area productivity the average yield would have been 150 bags of 50 kgs per acre. The farmgate price of one bag was Kshs. 3,000 and therefore the total income lost was Kshs. 315,000. The 1st Respondent’s Case: 9.RW1 was Benard Ngetich, the 1st respondent. he adopted his statement dated 11th May 2026. On 3rd November 2025 he ordered seeds from the 2nd respondent’s platform. 10.On cross examination he confirmed receipt of monies from the Claimant to purchase for her seeds from the 2nd respondent. later it was discovered that the seeds were bad. That KEPHIS confirms that the seeds are good and the 2nd respondent sells the seeds. When the 2nd respondent put the seeds in the platform they believed they were good. The potatoes had KEPHIS bar code. The 2nd Respondent’s Case: 11.2RW1 was Naftali Wachira Kaguongo, the 2nd respondent’s CEO. He adopted his statement dated 6th May 2026. He also produced the letter in the list of documents dated 12th May 2026. 12.On cross examination he confirmed that the 1st respondent purchased seeds from their platform which were certified by KEPHIS. The 1st respondent has never complained to them about the seeds he purchased. The 1st respondent is also not licensed to sell the seeds. The seeds were purchased from a company called Utopia. They attempted arbitration in this case but the case was filed before the dispute resolution mechanisms were concluded as there were two meetings remaining. He is aware Utopia offered to compensate the Claimant 40% but she refused. The first arbitration is done through KEPHIS. Payment is made directly to Viazi Kings who collect certified seeds and supply to the farmer. 13.Directions on filing of submissions issued and at the time of writing this judgment all the parties had filed their written submissions. Issues for Determination: 14.I have considered the parties’ pleadings, witness statement, documents as evidence by the parties and the written submissions; as well as the relevant law. 15.The Claimant’s claim is for compensation for losses incurred as a result of alleged defective potato seed obtained from the Respondents. Both Respondents have denied liability for the alleged defective potato seed. 16.Consequently, the issues for determination are:i.Whether the Claimant’s claim is merited?ii.What orders ensue? Analysis and Determination: 17.It is settled law that whoever desires any court to give judgment as to a legal right or liability bears the legal and evidential burden of proof, as provided under Sections 107 and 109 of the Evidence Act, Cap 80. In the circumstances each party must prove its allegations on a balance of probabilities. 18.Lord Denning J., in Miller v Minister of Pensions (1947) 2 ALL ER 372, elaborated on the burden of proof required of a Claimant in a civil case as follows-“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘We think it more probable than not’, the burden is discharged, but, if the probabilities are equal, it is not.Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.” 19.The Claimant’s case is that she sent the 1st respondent to purchase for her potato seeds from the 2nd respondent. She averred that she received 18 bags from the 1st respondent which were certified by KEPHIS at the cost of Kshs. 72,000.00. It is her case that she planted the seeds but they were defective since they started rotting and drying. She stated that she only harvested one bag of potatoes which continued rotting. She called an agricultural officer who confirmed having visited the farm and upon assessment found that there was 70% crop loss with suspected bacterial infection. 20.The 1st respondent’s case is that he received money from the Claimant and purchased certified seed from the 2nd respondent which subsequently turned out to be defective. 21.The 2nd respondent on its part confirmed that the 1st respondent purchased potato seeds from its platform. It however denies selling any seed to the Claimant and categorically stated that the 1st respondent was not authorized to sell the seeds to the Claimant. The 2nd respondent called its CEO as a witness who confirmed that there had been attempted arbitration where the Claimant was offered 40% compensation by Utopian company. The CEO stated that the seeds displayed on their platform and purchased by the 1st respondent were from Utopian which was licensed by KEPHIS. It is its case that the seed was certified by KEPHIS as fit for planting. 22.From the evidence presented before this court it is clear that the potato seed sold to and planted by the Claimant was purchased from the 2nd Respondent’s platform. The 2nd respondent’s position that it cannot vouch for the seeds sold to the Claimant by the 1st respondent cannot stand. The Claimant has filed a report prepared by KEPHIS dated 17th February 2026 and minutes of a virtual meeting held on 24th February 2026, where the 2nd respondent participated in the meeting in acknowledgement that the seed had been purchased from the 2nd respondent’s platform. The report and minutes also show that the seed merchant was Utopian Seeds Company. It is this court’s finding therefore that the Claimant has proved on a balance of probabilities that the potato seed she planted was sourced from the 2nd respondent. The Claimant has also undeniably tendered evidence showing that the potato seed emanated from Utopian Ltd. 23.The Claimant has produced two reports, one by an agricultural officer and a second one by KHEPHIS from which it can safely be concluded that the seed was defective and as a result the Claimant suffered 70% loss of the crop planted in one acre land. 24.From the foregoing analysis, the 1st respondent has been absolved from blame as the seed that he supplied to the Claimant had been obtained from the 2nd Respondent. The Claimant also confirmed that the seed given to her was certified. The Claimant has produced the report by KEPHIS and the minutes of an attempted negotiations between herself, the 2nd respondent, Viazi Kings Ltd and Utopian Ltd which clearly show that the 1st respondent had purchased the potato seeds from the 2nd respondent as per the understanding between him and the Claimant. I therefore find that the 1st respondent was not to blame for the defective potato seeds or the loss suffered by the Claimant. 25.What is the 2nd respondent’s scope of liability considering the evidence placed before this court? The Claimant’s evidence is clear that the defective seed was sold to the 1st respondent by Utopian Ltd although sold through the 2nd Respondent’s platform. Indeed, the Claimant even negotiated a settlement with Utopian Ltd for the losses incurred as a result of the defective seed. At the time of filing this claim, the Claimant was already aware that Utopian Ltd had assumed liability and was willing to compensate although the parties had not reached an agreement. It’s this court’s finding that there was a disclosed agent-principal relationship in this case. 26.In the City Council of Nairobi v Wilfred Kamau Githua t/a Githua Associates & Another (2016) eKLR at page 9, paragraph 38 and 39, the Honorable Court stated;“In Anthony Francis Wareheim T/A Wareheim & 2 Others v Kenya Post Office Savings Bank, Civil Appln Nos. Nai 5 & 48 of 2002, at page 10, this court unanimously held as follows:“It was also prima facie imperative that the court should have dismissed the respondent’s claim against the second and third appellants for they were impleaded a agents of a disclosed principal contrary to the clear principal of common law that where the principal is disclosed, the agent is not to be sued. Furthermore, the court having found on the evidence that the second and third appellants were principals in their own right and not agents of the first appellant in the transaction giving rise to the suit, it should have dismissed the suit against the first appellant who had been sued as the principal.”In the circumstances of this case, the 2nd respondent cannot be sued as agent where there is a disclosed principal (the appellant). There is therefore no cause of action against the 2nd respondent. The principle of common law is that where the principal is disclosed, the agent is not to be sued. In the circumstances of this case, the principal (the appellant) is disclosed and the agent (the 2nd respondent) cannot therefore be sued. There are no factors vitiating the liability of the disclosed principal. Accordingly, the enjoinment of the 2nd respondent in this case is unwarranted.” 27.Further to the above in the case of Nepro Capital Investment Limited v S.G.S (Kenya) Limited and another (2018) eKLR the 1st Respondent filed a preliminary objection on the ground that it was an agent of a disclosed principal and in allowing the preliminary objection, the Honourable Court noted at page 5, paragraph 30 that;“The petitioner argues that the 1st respondent cannot be separated from the 2nd respondent, and that the 2nd respondent was bound to inquire from the 1st respondent whether it had taken the appropriate action before forwarding the seized items to the 2nd respondent. The point, however, is that the actions of the 1st respondent are the actions of its principal, the 2nd respondent. Any action of the 1st respondent, lawful or otherwise, is the act of the principal. The 1st respondent is accordingly improperly joined to these proceedings. I will therefore in this petition consider the petitioner’s claim against the principal, the 3rd respondent though I will make reference to the averments of the 1st respondent.” 28.Having regard to the above analysis it is clear that the Claimant sued the Respondents herein despite having knowledge of Utopian Ltd and prior negotiations and proposals for settlement between herself and Utopian Ltd. Consequently, the claim against both Respondents fail. Considering the evidence before court and the circumstances under which this claim arose each party shall bear own costs. 29.It is so ordered. READ, SIGNED AND DELIVERED IN VIRTUAL COURT AT NAROK THIS 30TH DAY OF JUNE, 2026.E. M. MUTUKURESIDENT MAGISTRATE/ADJUDICATORIn the presence of:Mr. Kiletyen for the ClaimantMr. Barusei for the 1st Respondent2nd Respondent: N/AC/A Lewis.