[2009] KEHC 1929 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (NAIROBI LAW COURTS)

Civil Case 343 “A” of 2004

SAMUEL WAMUTU WAIGANJO..........................APPELLANT

VERSUS

MRS. ZOHRA BARAKA...............................1st RESPONDENT

MOHAMED BARAKA.................................2ND RESPONDENT

(Being an appeal against the judgment dated and delivered on 29th April, 2004 by Principal Magistrate, Hon. N.A. Owino (Mrs.) at Chief Magistrate’s Court at Milimani, Nairobi)

J U DG M E N T

1. This appeal arises from a suit which was filed in the Chief Magistrate’s Court at Nairobi by Samuel Wamutu Waiganjo, (hereinafter referred to as the appellant) against Mrs. Zohra Baraka and Mohamed Baraka, (hereinafter referred to as 1st and 2nd respondent respectively). The appellant sought judgment against the respondents for Kshs.513,845/= being amount due from the respondents to the appellant for goods sold and delivered pursuant to an agreement entered into between the appellant and the respondents.

2. The respondents filed a joint defence in which the 1st respondent denied having entered into any agreement with the appellant, whilst the 2nd respondent denied knowing the appellant and urged the Court to strike out the suit against him for misjoinder. It was further contended that the appellant delivered woodblocks to the 1st respondent’s premises on an understanding with the 1st respondent’s contractor. The contractor had no authority to enter into any agreement with 3rd parties on behalf of the 1st respondent and therefore the 1st respondent out rightly rejected the woodblocks. Despite persistent requests the appellant failed to remove the woodblocks from the 1st respondent’s premises.

3. During the hearing before the lower Court, the appellant and one Samuel Gitonga Nderitu (Gitonga) testified in support of the appellant’s case. Their evidence was that the respondents were constructing a house at Spring Valley. Gitonga was the contractor. The respondents needed woodblocks, and Gitonga who had also constructed a house for the appellant, knew that the appellant had some surplus woodblocks. Sometime in April, 2002 after consulting the appellant, Gitonga took the 1st respondent and another person to the appellant’s premises at Karen where they saw the woodblocks. Sometime in June 2002, the 1st respondent and the appellant discussed and agreed on a price of Kshs.15 per piece.

4. On 27th July, 2002, Gitonga collected a total of 34,324 pieces of woodblocks in two consignments from the appellant’s premises. Both delivery notes were signed by Gitonga and the 1st respondent. On the 1st respondent’s instructions, Gitonga delivered one consignment of 14,280 woodblocks at Embakasi. The other consignment of 20,043 woodblocks was delivered at the 1st respondent’s site. Thereafter the appellant issued two invoices to the 1st respondent for Kshs.300,645/= and 214,200/= respectively. The 1st respondent explained that she could not pay immediately as she was waiting for a loan. Notwithstanding demands made to her, the 1st respondent only paid a sum of Kshs.1000/= and failed to pay the balance of Kshs.513,845/=.

5. The 1st respondent is the one who testified in support of the defence. She explained that Gitonga who was the foreman at her construction site advised her that woodblocks were required. Gitonga took the 1st respondent to the home of the appellant, and the 1st respondent saw some woodblocks which the appellant was selling. The 1st respondent noted that they were alright. One Damaris Osiero a friend of the 1st respondent, also required woodblocks. She negotiated with Gitonga and agreed to pay for transport. Later Gitonga went to the 1st respondent with delivery notes explaining that he had already delivered the woodblocks to the respondent’s site and also to Damaris. The 1st respondent signed the two delivery notes.

6. A few days later the 1st respondent went to her construction site. She noted that the woodblocks which were delivered were substandard. She therefore instructed Gitonga to return the woodblocks, but he explained that he could not do so as the appellant was away. She maintained that only one bundle of 20,000 woodblocks was delivered to her and the woodblocks were still at her construction site. She explained that the 2nd respondent was not involved in the negotiations as he was at the material time away in Tanzania.

7. Counsel for the appellant and the respondent each filed written submissions urging the Court to find in favour of his client. In her judgment, the trial Magistrate noted that the woodblocks were delivered to the respondent’s premises by Gitonga during the absence of the respondents. The respondents, who were away at a funeral, rejected the woodblocks when they came back, as the woodblocks were not the same as what the 1st respondent had earlier seen in the appellant’s house. The 1st respondent gave Gitonga a sum of Kshs.1000/= to return the woodblocks. The trial Magistrate found that the goods having been rejected there was no consideration. The trial Magistrate found that the property in the goods had not passed to the respondents and the respondents were therefore not liable to the appellant. She therefore dismissed the appellant’s suit with costs.

8. Being aggrieved by that judgment, the appellant has lodged this appeal raising 17 grounds as follows:

(i) that the learned Magistrate erred in law in finding that what existed between the plaintiff and the 1st defendant was desire or agreement to purchase the woodblocks from the plaintiff.

(ii) The learned Magistrate erred in law and fact in finding that the agreement did not have to pass and still found that it is enforceable in law.

(iii) The learned Magistrate erred in law and fact in finding that the woodblocks were to be delivered, accepted before payment. They were collected by the defendant’s employee and the 1st defendant accepted this.

(iv) The learned Magistrate erred in law and fact in finding that the woodblocks were not accepted upon delivery.

(v) The learned Magistrate erred in law and fact in finding that the woodblocks were rejected by the 1st defendant whereas there was no evidence to the effect that they had tried to return the same.

(vi) The learned Magistrate erred in law and fact in finding that there cannot be any consideration for the goods whereas the goods were still in custody of the defendants.

(vii) The learned Magistrate erred in law and fact in failing to find that the purchasers had partly paid for the woodblocks which payment had been duly acknowledged by the plaintiff.

(viii) The learned Magistrate erred in law and fact in finding that the property in the woodblocks had not yet passed to the defendants.

(ix) The learned Magistrate erred in law and fact in finding that the property in the goods is still with the plaintiff.

(x) The learned Magistrate erred in law and fact in finding that the Contractor Samuel Gitonga was an agent of the plaintiff whereas the evidence by both parties was to the contrary.

(xi) The learned Magistrate erred in law and fact in finding that the defendant’s contractor was a mediator.

(xii) The learned Magistrate erred in law and fact in finding that the contractor Samuel Gitonga was given Kshs.1000/= to facilitate the return of the woodblocks.

(xiii) The learned Magistrate erred in law and fact in finding that the 2nd defendant is not mentioned anywhere as having been a party to the contract.

(xiv) The learned Magistrate erred in law and fact in finding that the inclusion of the 2nd defendant in the delivery notes is illegal.

(xv) The learned Magistrate erred in law and fact in failing to note that the application by the 2nd defendant not to be enjoined in the suit had been dismissed by the Court due to non appearance on 7th May 2004. He was therefore lawfully enjoined in the suit. The matter was res judicata.

(xvi) The learned Magistrate erred in law and fact in failing to note the 1st defendants sworn testimony on cross-examination that she signed the delivery notes and that signing of the delivery notes showed hat she accepted the gods.

(xvii) The learned Magistrate erred in law and fact in failing to find that Mr. Samuel Gitonga Nderitu was employed by the 1st and the 2nd defendants.

9. During the hearing of the appeal, there was no attendance by the respondents or their counsel, despite the hearing date having been fixed by consent. Hearing of the appeal therefore proceeded ex parte in accordance with Order XLI Rule 14(2) of the Civil Procedure Rules.

10. Mr. Macharia who argued the appeal on behalf of the appellant, compressed all the 17 grounds of appeal into one as follows:

“That the trial Magistrate erred in law and fact by reaching conclusions of facts that are not supported by the evidence adduced at the trial.”

Mr. Macharia submitted that there was clear evidence that there was an agreement for sale of the woodblocks at a price of Kshs.15/= per piece, and that the goods were duly delivered and delivery notes signed. The trial Magistrate was therefore wrong in finding that there was no agreement to sale but a desire to purchase the woodblocks.

11. I have carefully reconsidered and evaluated the evidence which was adduced before the trial Magistrate. I have also given due consideration to the submissions made before the trial Court and the submissions made before me. In her evidence before the trial Court, the 1st respondent did admit that she went to the appellant’s premises and saw the woodblocks which were being offered for sale. The 1st respondent conceded under cross-examination that she liked the woodblocks and negotiated the price with the appellant and they agreed on a price of Kshs.15/= per piece. It was pursuant to that agreement that the woodblocks were delivered and the 1st respondent signed for the delivery.

12. Contrary to the defence filed by the respondents that there was no agreement and that the woodblocks were delivered without their authority, the evidence adduced before the trial Magistrate disclosed that there was an agreement for sale of the woodblocks between the 1st respondent and the appellant, and that the terms of the agreement were clear and agreed. The woodblocks were delivered at the 1st respondent’s request and the deliveries were signed for by the 1st respondent who directed part of the goods to be delivered to her friend Damaris who had no relationship with the appellant. Moreover, nowhere in her evidence did the 1st respondent testify to having been away at a funeral at the time the delivery was made. Thus the trial Magistrate’s finding in this regard was not supported by evidence.

13. The 1st respondent claimed that the woodblocks supplied were sub-standard. However there is no evidence that the 1st respondent returned the goods back to the appellant or informed the appellant of any such rejection of the goods. Nor is there any evidence that Damaris had a similar complaint or returned the woodblocks. The 1st respondent to whom the delivery was made was therefore fully liable to the appellant for the goods.

14. With regard to the claim against the 2nd respondent, there is no evidence that he entered into any negotiations with the appellant or that the 1st respondent was acting on his behalf. For that reason I find that he was wrongly enjoined in the suit.

15. The upshot of the above is that the trial Magistrate was wrong in dismissing the appellant’s suit. Consequently, I allow the appeal, set aside the judgment of the lower Court and substitute thereof a judgment in favour of the appellant as against the 1st respondent for Khs.513,845/= together with costs and interest thereon at Court rates, from the date of filing suit until payment in full. I dismiss the suit as against the 2nd respondent.

Those shall be the orders of the Court.

Dated and delivered this 30th day of September, 2009

H. M. OKWENGU

JUDGE

In the presence of: -

Macharia for the Appellant

Madara for the respondent

Eric, court clerk