[2022] KEHC 15844 (KLR)

Soko Sweety Limited v Sahel Carrier Limited & another (Civil Appeal 208 of 2018) [2022] KEHC 15844 (KLR) (2 December 2022) (Judgment)

Neutral citation: [2022] KEHC 15844 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil Appeal 208 of 2018

JK Sergon, J

December 2, 2022

Between

Soko Sweety Limited

Appellant

and

Sahel Carrier Limited

1st Respondent

Marjan Ali Swaleh

2nd Respondent

(Being an appeal against the judgment and decree of Honourable D.O. Mbeja (Mr.) (Senior Resident Magistrate) delivered on 26th March, 2018 in Milimani CMCC No. 707 of 2012)

Judgment

1. The appellant in the present instance instituted a suit before the Chief Magistrate’s Court by way of the plaint dated 15th February, 2012 and sought for the sum of Kshs.959,806/= together with costs of the suit and interest thereon.

2. The 1st respondent was sued in its capacity as the registered owner of the motor vehicle registration number KAS 288Y/ZC 3046 (“the subject motor vehicle”) whereas the 2nd respondent was sued as its driver at all material times.

3. The appellant pleaded in the plaint that sometime on or about the 19th day of April, 2010 it contracted the 1st respondent to transport 1,900 cartons of Nucita chocolate, Strawberry and Hazelnut (“the material goods”) from Mombasa to Nairobi suing the subject motor vehicle.

4. The appellant further pleaded in the plaint that upon arrival of the material goods, it noted that only 1,677 out of the 1,900 cartons had been delivered contrary to the agreement, thereby amounting to a breach of contract whose particulars were set out in the plaint.

5. It is pleaded by the appellant that as a result, General Accident Insurance Co. Ltd (“the insurer”) had to compensate the appellant for the loss of a few cartons containing part of the material goods in the sum of Kshs.887,306/= plus adjuster’s fees amounting to the sum of Kshs.72,500/= totaling the sum of Kshs.959,806/=.

6. The appellant therefore sought for a refund of the abovementioned sum by way of the suit.

7. Upon service of summons, the 1st and 2nd respondents entered appearance and filed their joint statement of defence dated 18th May, 2012 to deny the appellant’s claim.

8. At the hearing of the suit, the appellant and the respondents called three (3) and two (2) witnesses respectively.

9. Upon close of submissions, the trial court dismissed the appellant’s suit by way of the judgment delivered on 26th March, 2018.

10. Being aggrieved by the above decision, the appellant sought to challenge the same by way of an appeal. Through its memorandum of appeal filed on 25th April, 2018 the appellant put in the following grounds:i.That the learned trial magistrate erred in law and in fact in holding and finding that the appellant had not proved its claim against the respondents.ii.That the learned trial magistrate erred in law and in fact in failing to appreciate the applicable standard of proof in the case before the lower court.iii.That the learned trial magistrate erred in selectively applying the evidence presented before the lower court and in failing to appreciate evidence presented before the lower court showing that the 1st respondent had admitted in writing that there was a contract of carriage between it and the appellant.iv.That the learned trial magistrate erred in law and in fact in finding that the appellant’s claim should have been pursued against another party notwithstanding the obvious and written admission of a contractual relationship between the appellant and the 1st respondent.v.That the learned trial magistrate erred in law in failing to consider the totality of the evidence presented before him.vi.That the learned trial magistrate erred in law and in fact in finding for the respondents.vii.That the learned trial magistrate erred in law and in fact in dismissing the appellant’s claim.

11. This court issued directions to the parties to file written submissions on the appeal.

12. In its submissions, the appellant argues that the trial court did not properly consider the evidence tendered to support the appellant’s averment that the loss of the material goods occurred while the said goods were in the custody of the 1st respondent, thereby erring in its finding that the appellant had not proved its case on a balance of probabilities.

13. The appellant further argues that it proved its case for breach of contract and therefore urges this court to allow the appeal by setting aside the dismissal order made by the trial court.

14. The respondents in reply submit that the appellant did not tender any evidence before the trial court to show that a contract existed between the parties herein, but that the respondents were merely transporters of the material goods and could therefore not be held liable under the tort of breach of contract.

15. The respondents also support the reasoning by the trial court when it determined that the appellant ought to have enjoined a third party with whom the contract was entered into, namely Sahel Freighters Limited, and ought to have pursued the claim for breach of contract against the third party, citing the case of Syngenta East Africa Limited v Express Kenya Limited [2009] eKLR where the court held that:“Since the defendant was the one contracted by the plaintiff to clear and deliver the goods to the plaintiff in Nairobi, the Third Party was an agent of the defendant. The defendant was under specific instructions from the plaintiff to deliver the goods in Nairobi. Although the defendant subcontracted that responsibility, the defendant remained fully liable to the plaintiff and the issue of an independent contractor does not arise.”

16. It is the submission by the respondents that no known person was ever charged, prosecuted and/or convicted in relation to the goods allegedly stolen/lost.

17. In view of the foregoing, the respondents urge that the appeal be dismissed with costs.

18. 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 suit. I will therefore deal with the grounds of appeal contemporaneously.

19. Hansal Shah who was PW1 stated before the trial court that he is a director of the appellant company and that upon delivery of the goods by the respondents, he took note of the shortfall in the number of cartons delivered and even reported the matter to the police station at Industrial Area, in addition to contacting the insurer who compensated the appellant for the sum of cartons lost.

20. In cross-examination, the witness stated that the material goods were insured and that upon receiving the delivery note in respect to the material goods, he indicated that some of the material goods were missing but that this note was not countersigned by any other agent of the appellant.

21. The witness testified that the cartons received were sealed and that they were received in the presence of a few employees of the appellant and a representative of the 1st respondent.

22. The witness further testified that the missing goods were later discovered somewhere in Mombasa but that the respondents are to blame for failing to deliver the material goods in full.

23. Joseph Guchera Kamwae who was PW2 stated that he is an insurance surveyor and a loss adjuster, and that he prepared a report following the complaint brought forward by the appellant regarding the missing cartons of the material goods.

24. The witness stated that his findings disclosed that some of the cartons/containers had been tampered with and that the carrier who issued the delivery notes ought to be held responsible for the loss.

25. In cross-examination, it was the testimony of PW2 that upon arrival of the goods at the appellant’s premises, off-loading was not done immediately and the appellant confirmed that the seals were intact.

26. It was also the testimony of PW2 that he had recommended that Sahel Freighters Limited (“the third party”); the carriers of the material goods; be sued and that he is aware that they were not sued in the case.

27. Simon Lasia who was PW3 stated that he worked with the insurer as a legal officer at all material times and that upon receipt of the claim for compensation lodged the appellant, the insurer processed the same and which payment was made to the appellant thereby resulting in issuance of a discharge voucher.

28. The witness testified that the claim against the respondents had been brought under the doctrine of subrogation.

29. In cross-examination, PW3 gave evidence that the claim according to the appellant was against the third party who was the clearing agent and who is a distinct entity from the 1st respondent, but stated that the suit was properly before the trial court.

30. For the respondents, Ramadhani Samir Hakeiru who was DW1 gave evidence that he undertook transport business with the 1st respondent at all material times whereas the third party is the clearing agent.

31. The witness gave evidence that the respondents transported the material goods on the material date from Mombasa to Nairobi and that an agent of the appellant was present to receive the material goods.

32. It was the testimony of the witness that the third party entered into the contract with the appellant and the duty of the 1st respondent was simply to transport goods without necessarily being authorized to inspect them since they usually have a seal on.

33. In cross-examination, DW1 testified that he partially drove the subject motor vehicle while being assisted by the 2nd respondent and that following the delivery of the material goods to the appellant, he was informed of the shortage.

34. Hutlyne Iray Swale who was DW2 stated that he worked with the third party at all material times.

35. The witness stated that upon receiving the material goods, the same were inspected by the police before being sealed and during which time the 1st respondent’s agents were not present.

36. It was the testimony by the witness that whenever a problem arises with goods being delivered, the third party has to be notified.

37. In cross-examination, it was the evidence by the witness that the 1st respondent and the third party are sister companies but that the third party is a clearing company.

38. It was also the evidence by the witness that though he could not tell the number of cartons that were present at the time of inspection of the material goods, he is convinced that the cartons/containers were intact.

39. In arriving at his decision, the learned trial magistrate reasoned that the appellant ought to have primarily taken out legal action against the third party and in failing to do so, had not proved its case against the respondents to the required standard.

40. For those reasons, the learned trial magistrate dismissed the appellant’s suit with costs.

41. From my re-examination of the pleadings and evidence which was tendered before the trial court, there is nothing to indicate the existence of a contract between the appellant and the 1st respondent.

42. From my further re-examination of the pleadings and evidence, it is apparent that the appellant instead entered into a contract with Sahel Freighters Limited; the third party; for the delivery of the material goods.

43. The evidence tendered supports the assertions made by the respondents that the third party and the 1st respondent herein; though related; are distinct entities and performing separate functions. Consequently, I support the view taken by the learned trial magistrate that the appellant ought to have enjoined the third party in the suit, but did not. In the case of Syngenta East Africa Limited v Express Kenya Limited [2009] eKLR cited in the submissions by the respondents, the court inter alia stated as follows:“It is evident that the Third Party did not have any direct agreement with the plaintiff. The transportation of the consignment by the Third Party from Mombasa to the plaintiff’s premises in Nairobi was pursuant to an agreement entered into between the Third Party and the defendant. Since the defendant was the one contracted by the plaintiff to clear and deliver the goods to the plaintiff in Nairobi, the Third Party was an agent of the defendant. The defendant was under specific instructions from the plaintiff to deliver the goods in Nairobi. Although the defendant subcontracted that responsibility, the defendant remained fully liable to the plaintiff and the issue of an independent contractor does not arise.”

44. Furthermore, upon my consideration of the evidence tendered, I did not come across anything to support the argument by the appellant on liability as against the respondents for the loss; if any; of some of the material goods to be delivered. It is apparent from the testimonies tendered that the respondents undertook duties of transporting goods without necessarily inspecting them beforehand.

45. In view of all the foregoing circumstances and in the absence of any credible evidence to indicate otherwise, I am satisfied that the learned trial magistrate was correct in finding that the appellant had not proved its case on a balance of probabilities and in consequently dismissing the case. I therefore see no reason to set aside the dismissal order.

46. On the subject of consideration of the evidence tendered at the trial, upon my perusal of the record, I have not come across anything to indicate that the learned trial magistrate overlooked or ignored the documentation or evidence tendered before him. In my view, the learned trial magistrate arrived at a well-reasoned decision upon considering the totality of the evidence which was placed before him.

47. The upshot therefore is that the appeal is found to be without merit, it is dismissed with costs to the 1st and 2nd respondents.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 2ND DAY OF DECEMBER, 2022. J. K. SERGONJUDGEIn the presence of:…………………………… for the Appellant…………………………… for the 1st and 2nd Respondents