[2003] KEHC 661 (KLR)
The court found that the plaintiff had proved, on a balance of probabilities, that he paid the defendant Kshs. 600,000 for hides and skins, but the defendant failed to deliver the goods or refund the money. The defendant was duly served but did not appear or defend the suit. The plaintiff was therefore entitled to...
Source-derived case information.
- Citation
- [2003] KEHC 661 (KLR)
- Parties
- Plaintiff: John Waweru Wandaka; Defendant: Chacha Omontage Omorimi
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- ? 328 of 2001
- Procedural Posture
- Civil Case / Judgment
- Outcome
- Judgment for the plaintiff.
- Judges
- ARM Visram
- Legal Topics
- Breach of Contract, Sale of Goods, Remedies for Non Delivery
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Waweru Wandaka
Plaintiff
Chacha Omontage Omorimi
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the defendant breached the contract by failing to deliver hides and skins after receiving payment.
- 2 Whether the plaintiff is entitled to a refund or delivery of goods or damages for non-delivery.
- 3 Whether interest should be awarded and at what rate.
Ratio Decidendi
The court found that the plaintiff had proved, on a balance of probabilities, that he paid the defendant Kshs. 600,000 for hides and skins, but the defendant failed to deliver the goods or refund the money. The defendant was duly served but did not appear or defend the suit. The plaintiff was therefore entitled to judgment for the amount claimed. However, as there was no evidence or specific claim regarding 'interest at bank rates,' the court awarded interest at court rates from the date of filing until full payment. The court entered judgment for the plaintiff as prayed, save for the interest rate adjustment.
Court Disposition
Judgment for the plaintiff.
Orders
- Judgment entered for the plaintiff for Kshs. 600,000.
- Interest to be paid at court rates from the date of filing suit until full payment.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL CASE NO. 328 OF 2001
JOHN WAWERU WANDAKA ……………………………………PLAINTIFF
VERSUS
CHACHA OMONTAGE OMORIMI …………………………...DEFENDANT
JUDGMENT
This hearing proceeded ex parte as neither the Defendant nor his Advocate was present in court, although duly served with a hearing notice. The testimony of the only witness in the case was as follows:
On or about the 13th of February 2001, the Defendant sold to the Plaintiff hides and skins worth Kshs. 600,000/=. The payments were made as follows:
Through (i) Cheque No. 000010 for Kshs 400,000/= (PEx 3) dated June 29,2001
(ii) Cash vide Voucher No. 5941 for Kshs. 100,000 (PEx 2) dated March 29, 2001
(iii) Cash vide Voucher No. 6903 for Kshs. 100,000 (PEx 1) dated February 13, 2001
Having paid the aforesaid sum of money, the Plaintiff went to collect his goods on September 13, 2001, but the Defendant refused to deliver them to him. He later discovered that the goods were in Nairobi.
The Defendant was issued with a demand letter and Notice of Intention to sue but nevertheless, took no steps to either refund the aforesaid sum of Kshs. 600,000/= or to deliver the said hides and skins.
In the circumstances, the Plaintiff filed this case seeking Judgment for Kshs. 600,000/= with interest at Bank rates from time of filing upto payment in full. He sought to abandon his other prayers as set out in the Plaint. I am satisfied on a balance of probability that the Plaintiff is entitled to the Judgment sought and I enter the same in his favour as prayed. However, as there was no evidence before the Court about the claim for “interest at bank rates”, nor is a specific rate being claimed, the court will order that interest be paid at Court rates from the date of filing suit, until full payment.
Dated and Delivered at Nakuru this 16th day of June, 2003.
ALNASHIR VISRAM
JUDGE