[2022] KEHC 13830 (KLR)

Noman Tractor & Farm Equipment Limited v Sigma Supplies Limited (Civil Appeal 540 of 2017) [2022] KEHC 13830 (KLR) (Civ) (7 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13830 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Civil

Civil Appeal 540 of 2017

JK Sergon, J

October 7, 2022

Between

Noman Tractor & Farm Equipment Limited

Appellant

and

Sigma Supplies Limited

Respondent

(Being an appeal against the judgment and decree of Honourable E. Wanjala (Ms.) (Senior Resident Magistrate) delivered on 16th March, 2017 in Milimani CMCC no. 627 of 2012)

Judgment

1. Sigma Supplies Limited, the respondent herein instituted a suit before the Chief Magistrate’s Court by way of the plaint dated January 28, 2012 and sought for reliefs against the appellant in the nature of a refund of the sum of Kshs 240,000/= together with costs of the suit and interest thereon.

2. The respondent averred in its plaint that by way of the agreement dated June 10, 2011 the appellant contracted to sell to the respondent a tipping trailer (“the subject trailer”) for a consideration and that the respondent released to the appellant the sum of Kshs 240,000/= towards the purchase thereof but the latter did not deliver the trailer.

3. The respondent therefore sought for a refund of the abovementioned sum by way of the suit.

4. Upon service of summons, the appellant entered appearance and put in the statement of defence and counterclaim dated April 20, 2012 to deny the respondent’s claim.

5. The appellant pleaded in the counterclaim that despite delivering the subject trailer to the respondent, the latter did not complete payment of the balance of the purchase price thereby causing the former to suffer loss and damage, for which it sought reliefs in the nature of a declaration that the agreement be rescinded and repudiated arising from the breach on the part of the respondent.

6. The respondent rejoined with the reply to defence and defence to counterclaim dated April 25, 2012 wherein it denied the allegations made in the counterclaim.

7. At the hearing of the suit, the respondent and the appellant each called one (1) witness.

8. Upon considering the evidence and the written submissions filed by the parties, the trial court entered judgment in favour of the respondent and against the appellant as prayed in the plaint.

9. Being aggrieved by the above decision, the appellant sought to challenge the same by way of an appeal. Through its memorandum of appeal dated July 24, 2017 the appellant put in the following grounds:i.That the learned trial magistrate erred in law and in fact by delivering judgment in the absence of the respondent and without proof that the respondent had been made aware of the judgment date as required by the law.ii.That the learned trial magistrate erred in law and in fact by wholly relying on the evidence and submissions by the respondent and totally disregarding the evidence and submissions placed before him by the appellant.iii.That the learned trial magistrate erred in law and in fact in arriving at a decision that was contrary to the weight of the evidence and the law.iv.That the learned trial magistrate erred in law and in fact in dismissing the appellant’s counterclaim.v.That the learned trial magistrate erred in law and in fact in arriving at an unjust decision.

10. This court issued directions to the parties to file written submissions on the appeal. In its submissions the appellant has argued that the trial court erred in compelling the appellant to refund the deposit of the purchase price when it ought to have instead compelled the respondent to pay the remainder of the outstanding balance thereon in order to enable the delivery of the subject trailer.

11. The appellant has also argued that the date of delivery of the subject trailer had not been indicated in the agreement contract and yet the trial court determined that delivery had not taken place, thereby wrongly rewriting the contract between the parties.

12. To buttress its argument above, the appellant cites the case of National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & another [2001] eKLR in which the court rendered itself thus:“A court of law cannot re-write a contract between the parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded and proved.”

13. For all the foregoing reasons, the appellant urges this court to interfere with the judgment delivered by the trial court by setting it aside and finding in favour of the appellant.

14. In retort, the respondent argues that the trial court acted correctly in allowing its case while dismissing the appellant’s counterclaim since the respondent had demonstrated by way of evidence that it had honored its contractual obligations whereas the appellant had failed to deliver the trailer in good time and in accordance with the specifications agreed upon, thereby being in breach of the agreement.

15. The respondent has asked this court to consider the case of Jackline Njeri Kariuki v Moses Njung’e Njau [2021] eKLR where the court determined that:“In my understanding, a breach of contract is committed when a party, without lawful excuse, fails or refuses to perform what is due from him under the contract, or performs defectively, or incapacitates himself from performing. The appellant failed to ensure quiet possession of the motor vehicle by the respondent and in so doing breached the terms of the contract.”

16. In view of the foregoing, the respondent urges that the appeal be dismissed with costs.

17. I have considered the contending submissions and authorities cited on appeal. I have likewise re-evaluated the evidence placed before the trial court. It is clear that the appeal lies principally against the trial court’s decision to dismiss the appellant’s counterclaim. I will therefore deal with the grounds of appeal contemporaneously.

18. I will first make a determination on the issue of whether the learned trial magistrate fell into error by delivering the impugned judgment in the absence of the respondent.

19. Upon my perusal of the record, it is apparent that when the matter was slated for mention on December 13, 2016 to take a judgment date, the court noted that the appellant’s advocate was absent from court. On that basis, the trial court directed that judgment would be delivered on March 16, 2017 and further directed that notice be issued to the appellant.

20. Upon my further perusal of the record, when the judgment was read on the abovementioned March 16, 2017 there was no record to ascertain whether or not the appellant was present.

21. Be that as it may, I find that the mere absence of the appellant or its representative in court for the delivery of judgment would not render the learned trial magistrate at fault. If anything, going by the directions given on record, the onus fell upon the respondent to notify the appellant of the judgment date and it remains unclear whether it did so. Consequently, ground (i) of the appeal automatically fails.

22. The remaining issue for determination on appeal is whether the learned trial magistrate acted correctly in allowing the respondent’s claim and simultaneously dismissing the appellant’s counterclaim.

23. In his evidence as PW1, Dipak P Shah who was at all material times the Managing Director of the respondent, adopted his executed witness statement as his evidence-in-chief and stated that on June 10, 2011 upon signing the material agreement, he presented the appellant’s representative with a cheque in the sum of Kshs 240,000/= being the deposit and 50% of the purchase price for the subject trailer.

24. The witness stated that they were informed by the appellant’s representative that the subject trailer had arrived at Mombasa Port and would be delivered in 2 weeks’ time but that this did not happen.

25. In cross-examination, the witness testified that the sale of the subject trailer was advertised in the local newspaper and that on going to collect the subject trailer, the respondent’s Manager noted that it was not in line with the specifications given and that the trailer had not been registered.

26. In re-examination, it was the testimony of PW1 that to date, the respondent has neither received the subject trailer nor a refund of the deposit paid.

27. Iraf Ibrahim Haroon who was DW1 stated that he was at all material times the Managing Director of the appellant and similarly adopted his signed witness statement as evidence before proceeding to testify that upon arrival of the subject trailer, the respondent’s representative was contacted on phone and that arrangements were made for collection of the subject trailer together with payment of the outstanding balance of Kshs 240,000/=.

28. The witness testified that the respondent did not pay the outstanding balance thereby making it impossible for the appellant to release the subject trailer to its representative.

29. In cross-examination, the witness testified that the trailer in question was as per the agreed specifications.

30. In writing her judgment, the learned trial magistrate held that despite receiving the deposit of the purchase price together with the specifications of the subject trailer, the appellant did not deliver in accordance with the terms of the agreement and has equally not refunded the deposit paid.

31. The learned trial magistrate further held that the appellant had failed to demonstrate the manner in which the respondent had acted in breach of the agreement and hence found on a balance of probabilities that the respondent had proved its case against the appellant.

32. From my re-evaluation of the pleadings and evidence which was tendered before the trial court, I established; as the learned trial magistrate did; that it is not in dispute that the parties herein had entered into a contract in respect to the subject trailer and that the respondent had paid a deposit in the sum of Kshs 240,000/= towards the purchase of the subject trailer.

33. From my further re-examination of the pleadings and evidence, it is apparent that the subject trailer was not delivered by the appellant to the respondent and it is also apparent that no refund of the deposit sum was made to the respondent by the appellant.

34. Upon my study of the record, it is apparent from the sale agreement dated June 10, 2011 that certain specifications were laid out therein in respect to the subject trailer and whereas the appellant had tendered evidence to show that a trailer bearing similar specifications was registered in its name, there is no credible evidence on record to show that the subject trailer was ever delivered to the respondent.

35. In view of all the foregoing circumstances, I am satisfied that the learned trial magistrate was correct in finding that the respondent had proved its case on a balance of probabilities and that it was entitled to a refund of the deposit sum earlier paid.

36. In contrast, I find that in the absence of any credible evidence by the appellant to support the averments made in the counterclaim, the learned trial magistrate acted correctly in dismissing the counterclaim.

37. On the subject of consideration of the appellant’s evidence and submissions, upon my perusal of the record, I have not come across anything to indicate that the learned trial magistrate overlooked or ignored the documents tendered by the appellant. In my view, the learned trial magistrate arrived at a well-reasoned decision upon considering the totality of the evidence which was placed before her and I therefore see no reason to interfere with her findings. Consequently, grounds (ii), (iii), (iv) and (v) of the appeal collapse.

38. The upshot therefore is that the appeal is found to be without merit and is dismissed with costs to the respondent.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 7TH DAY OF OCTOBER, 2022. ..................................J. K. SERGONJUDGEIn the presence of:.................... for the Appellant.................... for the Respondent