[2004] KEHC 154 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (NAIROBI LAW COURTS)

Civil Appeal 750 of 2001

DATA CENTRE LIMITED...............................APPELLANT

VERSUS

HIGH PEAK ENTERPRISES LIMITED....RESPONDENT

JUDGMENT

By a Plaint dated the 19th August, 1998 the Plaintiff (Respondent before this Court) file an action in the lower court to recover Kshs.16,000/= for goods sold and delivered to the Defendant/Appellant in April, 1997. The Defendant denied the claim on the grounds that the goods delivered were of inferior quality, and were delivered late, making them useless for the purpose for which they were ordered.

The lower court (Mrs W D Lichuma, RM) in a Judgment given on 30th May, 2000 found for the Plaintiff. Aggrieved by that decision, the Defendant has appealed to this Court, outlining the following 7 grounds of appeal:

1. THAT the Learned Magistrate erred in law and in fact in entering Judgment and Decree against the Appellant notwithstanding the fact that the Respondent had failed to prove its case on a balance of probability.

2. THAT the Learned Magistrate erred in law and in fact in entering Judgment for the Respondent against the Appellant notwithstanding the fact that the Learned Magistrate had expressly made a finding of fact that the Respondent had not proved its case.

3. THAT the Learned Magistrate erred in law and in fact in refusing to appreciate that once the Appellant informed the Respondent of the fact that the Appellant had rejected the goods and that the Appellant was under no obligation in law to return the rejected goods to the Respondent’s premises or at all.

4. THAT the Learned Magistrate erred in law and in fact in failing to consider the submissions and the defence of the Appellant.

5. THAT the Learned Magistrate erred in law and in fact in failing to make a finding of law that the Respondent had admitted the allegations of fact raised in the Appellant’s defence notwithstanding the fact that the Respondent had failed to file any Reply to Defence.

6. THAT the Learned Magistrate erred in law and in fact in refusing to dismiss the Respondent’s claim even after the Respondent had admitted in its evidence in Court that the goods, subject matter of this suit were wet and consequently inferior quality at the time of delivery.

7. THAT the Learned Magistrate erred in law in delivering and dating the Judgment differently and consequently making Judgment that is a nullity.

The thrust of the Appellant’s argument was that the goods supplied to it by the Respondent were (a) of inferior quality, and could not be used for their intended purpose, and (b) delivered late, when the Respondent knew that time was of essence. The goods were printed material required for distribution at an exhibition on 16th April, 1997. According to the Appellant delivery was agreed for 11th April, 1997. The Appellant also argued that the lower court’s Judgment was a nullity because (a) it is dated 29th May, 2000, but was delivered on 30th May, 2000, and (b) because the Court granted the Appellant the right of appeal “within 14 days” when the law permits 30 days.

If I may, let me quickly deal with the latter submission regarding the validity of the Judgment. Having examined the Record, I am satisfied that the lower court’s Judgment was written on 29th May, 2000, and delivered on 30th May, 2000. That is completely normal. The effective date of any Judgment is the date when it is delivered and signed. In this case, the date is 30th May, 2000. With regard to the 14 days allowed for appeal, this appears to have been done in error. It should have been 30 days. However, this has caused no prejudice. The Appellant’s appeal was not rejected for late filing, and nothing really turns on this error. The law gave the Appellant certain rights – no Court, through an error, could take away those rights. The Appellant has not shown how it was deprived of any of its rights. I, therefore, find that the Judgment is valid, and now turn to the main issue – whether the findings of the Court were consistent with the evidence before it.

The Appellant has argued that the goods were not delivered on time; they were inferior; and the same had been rejected by telephone. Having been so rejected, under Section 37 of the Sale of Goods Act, it was not bound to physically return the same to the Respondent.

The Respondent, on the other hand, submitted that the contract was oral, that the goods supplied were as per sample; and the agreed date of delivery was 12th April, 1997.

Acknowledging that the evidence on these issues was conflicting, and that it was “difficult to ascertain who (was) being truthful,” the learned Magistrate nevertheless went ahead, and made a finding of fact, which indeed was her duty to do. She delivered herself as follows:-

“Goods were supplied and accepted. Defendant did not repudiate the agreement by returning the goods. To date he still keeps the same which he says he destroyed. I conclude that whether the goods were of low quality or not the defendant accepted the same and still keeps them. He should make good for the same.”

This finding of fact is based on the evidence before the lower court – that goods were actually delivered on 12th April, 1997. The delivery note (P Exhibit 1) signed by the Appellant was produced in Court. Nothing on that note is shown to indicate that the goods were not of the quality ordered. It would have been so much easier to reject them on delivery, but admittedly this was not done, and by its own evidence, the Appellant rejected the goods by telephone. The Magistrate clearly chose to believe the Respondent, and was satisfied that the case had been proved on a balance of probability.

This Court, being an Appellate Court, will not normally interfere with the finding of fact by a trial Court “unless it is based on no evidence or on a misapprehension of the evidence, or the Judge is shown demonstrably to have acted on wrong principles in reaching his conclusion” (See Makube vs Nyamuro (1983) KLR 403).

I find no reason to interfere with the decision of the lower court. Before I conclude, let me comment on Ground 5 of the Grounds of Appeal. The Appellant submitted that because the Respondent had not filed a Reply to its defence, it ought to have been held to have accepted the allegations of fact contained in the defence, and cited the case of Mount Elgon Hardware Limited vs United Millers Limited (C A 19 of 1996) for this proposition. I find this argument to be wholly misplaced, as Order 6 Rule 10 (1) of the Civil Procedure Rules clearly states that where no Reply is filed to a Defence, there is a joinder of issue on that defence.

Accordingly, and for reasons outlined above, I dismiss this appeal with costs to the Respondent.

Dated and delivered at Nairobi this 16th day of November, 2004.

ALNASHIR VISRAM

JUDGE