[2014] KEHC 3906 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

H.C.C.A NO. 97 OF 2005.

ROBERT KINYUA…...…………....……………………………..APPELLANT

VERSUS

MT. KENYA BOTTLERS LTD……….......…......……………..RESPONDENT

J U D G M E N T

1. The appellant Robert Kinyua was the defendant at the lower court. The respondent through a plaint dated 29th November, 1993 sued the appellant claiming Kshs.49,838/- for sum due and payable by the appellant for goods sold and delivered to the appellant by the respondent at the appellants’ request.

2. The appellant filed defence dated 18th May, 1994 denying the respondents claim for Kshs.49,838/- or at all and prayed that the respondent’s suit be dismissed with costs.

3. The respondent called one witness in support of the claim and produced several exhibits in support of the claim whereas the appellant on his part gave evidence and produced exhibit in support of his defence. That after close of the suit the trial court delivered judgment in favour of the respondent for Kshs.15,454/- together with costs and interest at court rate from the time of filing the suit.

4. The appellant being aggrieved by the trial court’s judgment preferred this appeal setting out four(4) grounds of appeal being as follows:-

The magistrate erred in law and in fact in finding that the plaintiff had proved his case on a balance of probabilities contrary to weight of evidence on record.

The trial magistrate failed to find that there was no valid claim against the appellant herein.

The trial magistrate’s judgment is not justified in law and equity.

The trial magistrate failed to find out that the exhibits produced were all doctored.

5. The Appeal was admitted to hearing, record of appeal was prepared, filed and directions were given that the appeal be determined by way of written submissions and highlighting. The appellant filed his written submissions on 27/10/2011 and the respondent filed reply to the submissions through written submissions dated 19th September, 2012. The parties Counsel highlighted on their respective written submissions on 29th May, 2014.

6. The brief facts of the appeal is that the appellant was appointed as Distributor for the respondent Coca Cola products and the respondent supplied the appellant with its goods and the appellant would distribute the same. The appellant paid for some of the goods or underpaid for the same and ended up being indebted to the respondent to the tune of Kshs.49,838/- for the period of upto 1991. The appellant on his part acknowledged that he received goods from the respondent but countered by stating that he paid for all the debts in respect of all the invoices and deliveries in respect of goods supplied to him and as such he was not liable to respondent’s claim.

7. I have carefully perused the pleadings, the proceedings, judgment, submissions and authorities relied upon by the respective parties. The court has also read the grounds of appeal which grounds can be consolidated and dealt with as one as they deal with evaluation of the evidence and the standard of proof.

8. The trial magistrate in her judgment found that the respondent had on balance of probabilities proved its case to the extent of Kshs.15,564/- covering exhibits, 3, 4, 5 and 8 and found the amount of Kshs.32,934 had no document in support and declined to award Kshs.32,943/-.

9. The evidence of PW1 on exhibits 3, 4, 5 and 8 is that the delivery notes had some alterations on the actual recipient of the goods. The delivery notes included exhibit 2, 4, and 5 due to diversion to the appellant. That the alterations were made by the accountant who has since left the respondents employment and that the respondent would get information on alteration from the driver by word of mouth and that they would counter check the signatures. PW1 admitted the signatures on exhibit 1, 2 and 7 were not the same. He admitted he did not know who caused alteration on exhibit No.2. The respondent did not call the driver nor the accountant nor the accountant as witnesses to support their case nor was handwriting expert called as witness.

10. The appellant testified that he was a distributor for the respondent between 1989 and 1993. That the respondent would deliver goods if he had corresponding crates and the money. The appellant denied knowledge of exhibit No.2, 3, 4 and 5 as the same were not in his name and as the customer’s name had been cancelled and his name inserted. He testified that he was not indebted to the respondents as he had paid in full for the goods supplied to him. He testified the respondent is still holding his deposit for crates as he was holding 500 crates for the respondent. The appellant admitted the signature on exhibit 8 is his and the name of the customer is his.

11. I have carefully perused the annextures 3, 4, 5 and 8 for which the trial court ordered the appellant to pay the respondent Kshs.15,454/. Exhibit 3 was initially issued to Bastian Mugwika but the name was cancelled and substituted with that of the appellant. Exhibit 4 was issued to Ithiru G. Stores but the name cancelled and substituted with that of the appellant. Exhibit 5 is in the name of the appellant with customers’ signatures. There is indication of payment vide Cheque No.13095 for Kshs.28,160/-. Exhibit 8 is also in the name of the appellant and there is indication of payment vide Cheque No.13413 for Kshs.39719. 65.

12. The respondent did not through any evidence prove that the appellant indeed received the goods indicated in the altered invoices exhibits Nos 3 and 4. The alterations are not countersigned nor do they bear any stamp of the respondent company. It is not disclosed who altered the name of the customer and whether the alterations were authorized by the company. PW1 stated the alteration was based on word of mouth by the driver. No single driver was called to confirm delivery of the goods in respect of the good referred to in exhibit 3 and 4. PW1 was speculative when he testified that the driver could not cheat. He made the situation worse when he further testified it was only the accountant who would know who had received goods. On exhibit No.5 and 8 in which the invoices are in the names of the appellant the particulars of Cheque issued and amount paid is reflected. PW1 in his evidence was casual about the two exhibits. He did not deny receipt of the two cheques nor did he produce any evidence or any copy of the said Cheque to show that they had been dishonoured by the appellant’s bank.

13. The respondent was under duty to prove that the goods referred to in exhibit No. 3 and 4 were supplied to the appellant but failed to do so. The respondent was also under duty to prove on balance of probabilities that the appellant did receive goods referred to exhibit 5 and 8 but failed to prove for the same. (See Section 107(1) of the Evidence Act Cap.80 which provides:-

“107(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exists”.

14. In view of the foregoing I find that the trial court was in error in holding that the respondents had proved its case on balance of probability in respect of exhibit 3, 4, 5 and 8. The appellant’s grounds of appeal are merited and the same are allowed.

15. The upshot is that the appellant’s appeal is allowed, the lower court judgment is set aside and the appellant gets costs of this appeal and court below.

DATED, SIGNED AND DELIVERED AT MERU THIS 9TH DAY OF JULY, 2014.

J. A. MAKAU

JUDGE

DELIVERED IN OPEN COURT IN THE PRESENCE OF:

1. Miss Kiome for the appellant

2. Mr. Cheriot for the respondent.

J. A. MAKAU

JUDGE