[2023] KEHC 24222 (KLR)

Postal Corporation of Kenya v Brinks Security Services Limited (Civil Appeal 476 of 2019) [2023] KEHC 24222 (KLR) (Civ) (27 October 2023) (Judgment)

Neutral citation: [2023] KEHC 24222 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 476 of 2019

AN Ongeri, J

October 27, 2023

Between

Postal Corporation of Kenya

Appellant

and

Brinks Security Services Limited

Respondent

(Being an appeal from the judgment and decree of Hon. Peter Muholi (SRM) in Milimani CMCC NO. 3041 of 2012 delivered on 1/7/2019)

Judgment

1. The appellant was the plaintiff in Milimani CMCC No. 3041 of 2012 where the respondent was the defendant.

2. The appellant sued the respondent in a plaint dated 5/6/2012 seeking general damages for breach of contract and special damages of kshs.301,600 plus costs and interest.

3. The suit arose out of a contract between the appellant and the respondent for the supply of security services at the appellant’s premises.

4. The appellant alleged that the respondent was in breach of the said contract and as a result the appellant lost two postal boxes containing 100 individual letter boxes which were delivered on 4/5/2011 and went missing on 27/7/2011 from the appellant’s premises at Ngara post office.

5. The respondent filed a defence dated 13/8/2012 denying the appellant’s claim. Each party called one witness during the hearing of the case.

6. The appellant’s evidence in brief was that the contract between them and the respondents contained an indemnity clause. The boxes that got lost were costing kshs.150,800 each.

7. The respondents on their part said they had agreed in the contract to indemnify the appellants if they were at fault. The respondents said no recording was done of the postal boxes delivered at Ngara post office and the respondents were not to blame for the loss.

8. The trial court found that there was no evidence that the postal boxes were ever delivered to Ngara post office or that there was loss occasioned by the respondents. The trial court dismissed the appellant’s case with costs to the respondents.

9. The appellant has appealed against the dismissal of the suit on the following grounds;i.That the trial magistrate erred in law and fact in finding that there was no evidence that the letter boxes were delivered at Ngara Post Office.ii.That the trial magistrate erred in finding that the loss of the letter boxes did not occur at Ngara Post Office.iii.That the trial court erred in failing to find that the respondent was negligent in its security services in failing to keep a record of movement into and out of Ngara Post Office; and failing to be alert during the material period and by failing to report the incident of missing property as required under the contract.iv.That the trial court erred in failing to find in favour of the Appellant and by failing to order the Respondent to compensate the appellant. 10. The parties filed written submissions as follows;i.The Appellants submitted that the Respondents were negligent in failing to keep a record of people entering and leaving Ngara Post Office.ii.The appellants further submitted that the trial court should have found the respondents negligent and ordered them to compensate the appellants for loss of the letter boxes.iii.The respondents on their part submitted that the loss of the letter boxes was not proved and further that no report was made to the police for investigation.iv.Further the respondents said the procurement and security departments did not produce any records to show there was acquisition of the letter boxes or delivery of the same.

11. This being the first appellate court, the duty of the first appellate court is to re-evaluate the evidence adduced at the trial court and to arrive at its own conclusion whether to support the findings of the trial court while bearing in mind that the trial court had the opportunity of seeing the witnesses.

12. The issues for determination are as follows;i.Whether the appellant proved its case against the respondent.ii.Whether the respondent was liable to pay the appellant damages for breach of contract.

13. On the issue as to whether the appellant proves its case against the respondents, I find that the trial court found that there was no evidence that the postal boxes were delivered at Ngara post office where the respondent was offering security services.

14. The trial court was right in holding that the appellant did not prove that the respondent was negligent.

15. There was no evidence tabled on the delivery of the postal boxes and no recordings of the same were made available.

16. On the issue as to whether the respondent was liable to pay the appellant for the loss of the boxes, the contract provided that the respondents were to indemnify the appellants if they were negligent.

17. Since the appellant did not prove that the responders were responsible for the loss, I find that the trial court was right in dismissing the appellants’ case.

18. I find that this appeal lacks in merit and the same is dismissed.

19. Since it is not in dispute that the postal boxes got lost I direct that each party bears its own costs of this appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 27TH DAY OF OCTOBER, 2023. ………………………A. N. ONGERIJUDGEIn the presence of:……………………………. for the Appellant……………………………. for the Respondent