[2021] KEHC 285 (KLR)
The court found that the Plaintiff had proved its case on a balance of probabilities by producing unchallenged documentary evidence of goods supplied and part payments made by the Defendants. The Defendants' denial of the particulars and claim of lack of privity of contract were unsupported by evidence. The issuance...
Source-derived case information.
- Citation
- [2021] KEHC 285 (KLR)
- Parties
- Plaintiff: Saicare Enterprises Limited; Defendant: Mana Pharmacy; Defendant: Samuel Oulula Wanguba
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case E044 of 2019
- Procedural Posture
- Civil Case / Judgment
- Outcome
- Judgment for the Plaintiff against the Defendants jointly and severally.
- Judges
- DAS Majanja
- Legal Topics
- Goods Sold and Delivered, Contractual Indebtedness, Privity of Contract
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Saicare Enterprises Limited
Plaintiff
Mana Pharmacy
Defendant
Samuel Oulula Wanguba
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the Defendants are indebted to the Plaintiff for goods sold and delivered.
- 2 Whether the Defendants had privity of contract with the Plaintiff.
- 3 Whether the Plaintiff is entitled to the claimed sums, special damages, costs, and interest.
Ratio Decidendi
The court found that the Plaintiff had proved its case on a balance of probabilities by producing unchallenged documentary evidence of goods supplied and part payments made by the Defendants. The Defendants' denial of the particulars and claim of lack of privity of contract were unsupported by evidence. The issuance of post-dated cheques and part payment via RTGS confirmed both the business relationship and the Defendants' indebtedness. The court rejected the Defendants' bare denials and arguments regarding the absence of a written contract or stipulated payment terms, holding that the evidence overwhelmingly supported the Plaintiff's claim. Judgment was therefore entered for the...
Court Disposition
Judgment for the Plaintiff against the Defendants jointly and severally.
Orders
- The Defendants shall pay the Plaintiff Kshs. 22,719,936.26.
- The Defendants shall pay special damages of Kshs. 18,000.
Full Case Text
Judgment text and source record
26 paragraphs
Saicare Enterprises Limited v Mana Pharmacy & another (Civil Case E044 of 2019) [2021] KEHC 285 (KLR) (Commercial and Tax) (22 November 2021) (Judgment)
Neutral citation number: [2021] KEHC 285 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)
Civil Case E044 of 2019
DAS Majanja, J
November 22, 2021
Between
Saicare Enterprises Limited
Plaintiff
and
Mana Pharmacy
1st Defendant
Samuel Oulula Wanguba
2nd Defendant
Judgment
1. The Plaintiff is a company whose business is to supply medical equipment and assorted medicines. In its plaint dated 26th March 2019 it seeks, a mandatory order directed against the defendant(s) for immediate payment of a sum of Kshs. 22,719,936. 26, being money owned, special damages for the sum of Kshs. 18,000, costs and interest.
2. The Plaintiff’s case is based on supply of goods as evidenced by invoices/delivery notes running from 9th December 2018 to 29th May 2018 which have been particularized in the plaint and have been produced in the Plaintiff’s bundle of documents which were admitted without objection. In addition, it is in evidence that the Defendants paid an initial instalment of Kshs. 6,000,000. 00 through RTGS and also issued 17 post-dated cheques out of which only one cleared and the rest of them were dishonoured resulting in the Plaintiff to paying bank charges which it claims in the plaint. Despite efforts to resolve the matter by issuing demand letter and emails, the Defendants failed to make good the payments.
3. The Plaintiff called one witness, its director, Minaxi Bhupendra Bhatia (PW 1) who testified along the lines set out in the Plaint and produced the documents to support its case. She was cross-examined by counsel for the Defendants, Mr. Mutuku.
4. When I called upon the Defendants to proceed with their defence, their advocate applied for an adjournment and I rejected it. Since the Defendants were not ready to proceed, I closed the defence case.
5. I have considered the entire case and the Statement of Defence dated 16th April 2020. This is a case for goods sold and delivered. In their defence, the Defendants admit that they had a business relationship with the Plaintiff. Although they deny the particulars of invoices/delivery notes signifying different transactions, the documentary evidence in support thereof is unassailable as it proves delivery of the goods. This is also augmented by the fact that part payment was made by RTGS and post-dated cheques issued.
6. In their Statement of Defence, the Defendants state that they did not agree to issue post-dated cheques out of their own free will. They state that the Plaintiff was aware of their financial capability. In my view, the fact that the post-dated cheques were issued is an admission not only of the business relationship but also indebtedness.
7. The Defendants also state that they did not have privity of contract with the Plaintiff. I reject this defence as it is unsupported by any evidence. The documents produced including the invoices/delivery notes, cheques and correspondence by email and WhatsApp messages all affirm that the Plaintiff and Defendants were involved in business.
8. The Statement of Defence is a bare denial. It cannot withstand the evidence produced by the Plaintiff in support of the claim. I reject the suggestion by counsel for the Defendants in cross-examination that there was no written contract or that the time for payment for goods delivered was not stipulated or that the parties have not gone to the Alternative Dispute Resolution or mediation to resolve the matter.
9. Having considered all the evidence, I find and hold that the Plaintiff has proved its case on a balance of probabilities. Consequently, I enter judgment for the Plaintiff against the Defendants jointly and severally as follows:a.Kshs. 22,719,936. 26;b.Special damages for Kshs. 18,000;c.Costs of the suit;d.Interest on (a) and (b) from the date of filing suit until payment in full.
DATEDANDDELIVEREDATNAIROBITHIS22NDDAY OF NOVEMBER 2020. D. S. MAJANJAJUDGECourt Assistant: Mr. M. Onyango.Mr. Khaemba for the Plaintiff.Mr. Mutuku for Mr. Swaka for the Defendant.