[2022] KEMSET 234 (KLR)

Devani v Tawasal General Store (Tribunal Case E005 of 2021) [2022] KEMSET 234 (KLR) (Civ) (22 April 2022) (Judgment)

Neutral citation: [2022] KEMSET 234 (KLR)

Republic of Kenya

In the Micro and Small Enterprises Tribunal

Civil

Tribunal Case E005 of 2021

J.Bett, Chair, R.Katina, Vice Chair, J.Were, A.Gikuya & A.Kibet, Members

April 22, 2022

Between

R.H Devani

Claimant

and

Tawasal General Store

Respondent

Judgment

Introduction 1. This claim dated 29th October 2021, was registered/filed through the e filing platform on 3rd November 2021. The Claimant, R. H Devani Ltd was represented by the Mr. SK Yusuf, Advocate who described the Claimant as a small & micro enterprise dealing in manufacturing and general supplies. The claim was for recovery of Ksh50,112/= being the amount due from the Respondent for the supply of an assortment of household goods. The Claim has been pending since 9th January 2017.

2. The Respondent is described as a micro and small enterprise dealing in general supplies.

3. Upon the filing of this Cause on 3rd November 2021, the Tribunal issued Directions on 1st December 2022 and set the Cause for a mention on 7th January 2022 to confirm compliance. On 7th January 2022, the Tribunal was informed by the Claimant that service of the claim had been effected as directed. The Tribunal however noted that the Respondent had not complied with its directions of 1st December 2021. The Cause was subsequently mentioned on 21st January, 1st February and on 10th February, the Cause was slated for a hearing on 24th February.

4. The Tribunal was informed by the Claimant on 24th February that the Claimant had filed a request for Judgment since the claim was uncontested. The Tribunal however was unable to ascertain whether the Claimant had served the Respondent. The Tribunal was informed on 9th March that the Claimant had complied with its further directions and that the Cause was ripe for formal proof. The Hearing slated for 18th March did not take place due to technical challenges occasioned by power failure. Fresh hearing notice was issued and eventually, the Cause was heard on 24th March 2022.

5. The matter had to proceed by way of formal proof as Tribunal was convinced that it was proper in the circumstances to allow the matter to proceed since the claimant had sufficiently demonstrated to the Tribunal that it had made every effort to duly serve the Respondent at every stage of the proceedings.

The Claimant’s Case 6. The Claimant avers as testified by Altaf Sameja, its sales manager that it supplied the Respondent with an assortment of goods on 14th December 2016 and that the Respondent has failed, refused, stalled and or neglected to pay the outstanding purchase price of Ksh. 50,112/=. That the Claimant issued the first demand letter through Kituo Cha Sheria on 1st March 2021 and another through its Advocates on record on 13th April 2022. Both Demands were unanswered. A copy of the demand letter dated 1st April 2021, copy of demand letter dated 13th March 2021, copy of the invoice/delivery note, copy of the debtor’s statement and authority to sign were produced during the hearing. The Claimant sought to rely on those documents.

7. The claimant avers that the payment of purchase price of Ksh. 50,112/= has been pending since 9th January 2017 when the Respondent confirmed receipt of the goods as evidenced by the delivery note/ invoice dated 14th December 2016 and received by the Respondent on 9th January 2017.

8. He further stated that upon service of the Claim and all supporting documents, the Respondent did not make any response to the Claim and that it has not made any payment in response.

9. He finally submitted that the Claimant is entitled to costs of this Cause and any other relief that the Tribunal would deem appropriate to grant.

Issues for Determination 10. Arising from the claim and the oral evidence at the formal proof hearing on 24th March 2022, the following issues presented themselves for the determination by this Tribunal;a.Whether the Respondent was served with the claim.b.Whether the Respondent has an outstanding debt of Ksh 50,100/= being the outstanding purchase price for the goods received from the Claimant.c.Who bears the cost of this claim?

Determination and Final Orders The right to be heard 11. The first issue is whether the Respondent was granted the right to be heard. The Tribunal grappled with this issue as it is a Constitutional right for the Respondent to be accorded the right to be heard.

12. The Tribunal notes that the Claim was served upon the Respondent. Further, the hearing notice was also served upon the Respondent. The Respondent however did not file the Response nor attended the hearing of the suit. No explanation was given for failure to file the Response. Further, no explanation was given for failure to attend the hearing of this suit by the Respondent or its Representative.

13. The Tribunal heard from Mr. Altaf Sameja that the Claimant served all the documents upon there-upon the Respondent. Corresponding affidavit of service were filed by the Claimant.

14. The Tribunal underscores the right to be heard as was held by the Supreme Court of India in Sangram Singh v Election Tribunal Koteh 1955 AIR 425 thus:-“[T]here must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle.”

15. Every party in a case has a right to be heard and subsequently, that right should not be denied unless there are very good reasons for doing so. The Tribunal having considered the facts and prevailing circumstances set the suit for formal proof hearing on 24th March 2022. The Tribunal was convinced that Respondent was served with the claim and was accorded reasonable time to file and serve the Response. It cannot therefore be said that the Respondent was denied the Constitutional right to be heard.

16. In allowing this suit to proceed to formal proof, the Tribunal was also guided by the Constitutional principles of the right to be heard and the reasoning of the appellate court in James Kanyiita Nderitu & Another [2016] eKLR, where the Court of Appeal stated as follows:“From the outset, it cannot be gainsaid that a distinction has always existed between a default judgement that is regularly entered and one which is irregularly entered. In a regular default judgement, the defendant will have been duly served with summons to enter appearance or to file defence, resulting in default judgment.

17. This point is further emphasised by Ojwang, J (as he then was) in Mungai –vs- Gachuhi and Another [2005] eKLR cited with approval in the case of Signature Tours & Travel Limited -V- National Bank of Kenya Limited [2017] eKLR when he stated as follows:“a court decision stands as a final decision only when a proper hearing has taken place and the parties and those who ought to be enjoined as parties have been fully heard and their representations concluded, unless they elect to forgo the opportunity.”

18. The Tribunal is guided by the Constitutional principles of the right of a party to be heard while noting that this right should not create injustice and prejudice to others. Having found that there was proper service and that there was no justification for the failure to file the Response and attend the hearing of the suit, the Tribunal was convinced that it was proper and justifiable in the circumstances to allow the matter to proceed to formal proof on 24th March 2022.

Goods Delivered 19. As to whether the Respondent obtained an assortment of household goods from the Clamant, the Claimant relied on the delivery note/ invoice dated 14th December 2016. The delivery note was received by the Respondent on 9th January 2017. No evidence was produced to the contrary.

Outstanding debt 20. Having considered the evidence tendered by the Claimant in its totality, the Tribunal finds that the relevant law that will govern it in coming up with its judgment is found under the provisions of Order 10 Rule 4 (1) of the Civil Procedure Rules, 2010 which provide as follows:“4(1) Where the plaint makes a liquidated demand only and the defendant fails to appear on or before the day fixed in the summons or all the defendants fail so to appear, the court shall, on request in Form No. 13 of Appendix A, enter judgment against the defendant or defendants for any sum not exceeding the liquidated demand together with interest thereon from the filing of the suit, at such rate as the court thinks reasonable, to the date of the judgment, and costs.

21. No evidence was given on the payment schedule and the amount paid by the respondent on or before the filing of this suit. The Claimant however claims that the outstanding amount is Ksh. 50,100/=. No evidence was presented to the contrary. We therefore find that the Claimant supplied the Respondent with an assortment of goods worth Ksh. 84,912/=. We also find the in the absence of evidence to the contrary, the Respondent owes the Claimant Ksh. 50,100/ being the outstanding amount of the purchase price.

Costs 22. On the issue of costs, the Tribunal notes that the Claimant has encountered considerable cost in sustaining this claim. The Claimant specifically pleaded to be awarded costs of this suit. We find that it is fair and just to award costs to the Claimant.

Orders 23. Flowing from the findings, we find that in the interest of justice, the Respondent should pay the Claimant:-a.The outstanding Purchase price of Ksh. 50,100/=b.Costs of the Claim of Ksh 30,000/=c.Interest on (a) and (b) above at prevailing court rates.Those then are the Orders of the Tribunal.

E DELIVERED AND DATED THIS 22ND DAY OF APRIL 2022 IN NAIROBIDr. J. BETT .................................. [CHAIRMAN]R. KATINA…...................................[VICE-CHAIR]Hon. J. WERE ......….............................[MEMBER]A. GIKUYA........................................[MEMBER]A. KIBET.........................................[MEMBER]Judgement delivered virtually in the presence of:1. Mr. Yusuf for Claimant2. Mr. Denis Kibet –Tribunal Assistant3. Ms Joy Kendi –Tribunal Assistant4. Ms Zulekha Abdullahi –Tribunal Assistant