[2011] KEHC 2337 (KLR)
The court found that the plaintiff had adduced uncontroverted evidence proving that he paid KShs.1,030,000/= to the defendant for the supply of a tractor and plough, which the defendant failed to deliver. The defendant's defence consisted of mere denials and no evidence was presented to rebut the plaintiff's case....
Source-derived case information.
- Citation
- [2011] KEHC 2337 (KLR)
- Parties
- Plaintiff: Stanslaus M. Alukumu; Defendant: Worldlink Motors Limited
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Case 116 of 2010
- Procedural Posture
- Civil Case / Judgment
- Outcome
- judgment for the plaintiff
- Legal Topics
- Breach of Contract, Sale of Goods, Specific Performance, Refund of Purchase Price
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stanslaus M. Alukumu
Plaintiff
Worldlink Motors Limited
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether there was a valid contract between the plaintiff and the defendant for the supply of a tractor and plough.
- 2 Whether the plaintiff paid the sum of KShs.1,030,000/= to the defendant.
- 3 Whether the defendant breached the contract by failing to deliver the tractor and plough.
Ratio Decidendi
The court found that the plaintiff had adduced uncontroverted evidence proving that he paid KShs.1,030,000/= to the defendant for the supply of a tractor and plough, which the defendant failed to deliver. The defendant's defence consisted of mere denials and no evidence was presented to rebut the plaintiff's case. The court held that the plaintiff had proved his claim on a balance of probabilities and was entitled to a refund of the purchase price, interest at court rates from the date of filing suit, and costs. The essential legal principle is that where consideration for a contract wholly fails, the party who paid is entitled to a refund.
Court Disposition
judgment for the plaintiff
Orders
- Judgment entered for the plaintiff against the defendant for KShs.1,030,000/=
- The plaintiff shall be paid interest at court rates of 14% per annum from 5th August 2010 until payment in full.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
CIVIL CASE NO. 116 OF 2010
STANSLAUS M. ALUKUMU ........................................................ PLAINTIFF
V E R S U S
WORLDLINK MOTORS LIMITED ........................................... DEFENDANT
J U D G M E N T
The plaintiff filed suit against the defendant seeking judgment to be entered in his favour for the sum of KShs.1,030,000/=. The plaintiff further prayed for costs of the suit and interest thereon. The basis of the plaintiff’s claim is an agreement that was allegedly entered on 3rd September 2009 between the plaintiff and the defendant by which the defendant agreed to supply to the plaintiff a tractor make Massey Ferguson 390 together with a plough for the purchase consideration of KShs.1,000,000/=. According to the plaintiff, he paid the said sum to the defendant, but to-date, the defendant had not fulfilled its part of the bargain by delivering the said tractor. The plaintiff averred that he paid a further sum of KShs.30,000/= to the defendant to facilitate the transport of the said tractor andplough to Kakamega. The plaintiff contends that the defendant breached the agreement and therefore he ought to refund the sum that he had paid to the defendant.
When the defendant was served with summons to enter appearance together with a copy of the plaint, it duly entered appearance. It entered appearance through counsel i.e. M/s Ario & Co. Advocates. It also filed defence to the plaintiff’s claim. It denied having ever entered into an agreement with the plaintiff for the supply of a motor tractor. It denied that it was paid the sum claimed by the plaintiff. It put the plaintiff to strict proof thereof. It denied that the plaintiff was entitled to judgment for the sum claimed in the plaint. It urged the court to dismiss the plaintiff’s suit with costs.
The defendant’s advocates were duly served with the hearing notice when this case was scheduled to be heard on 13th June 2011. An affidavit of service is filed in court indicating that the said advocates were duly served. Neither the defendant nor his counsel appeared in court during the date that the case was fixed for hearing. On the scheduled date, Mr. Mukavale, learned counsel for the plaintiff urged the court to proceed with the case notwithstanding that the defendant’s counsel was absent from court. This court was satisfied that the defendant was duly served. It directed the plaintiff to proceed with the hearing of his case in the absence of the defendant.
The plaintiff adduced evidence as PW1. He reiterated the contents of his plaint. He produced four (4) documents as exhibits. Two of the exhibits were copies of two cheques of the sums of KShs.700,000/= and KShs.300,000/= which were paid to the defendant. The copies of the two cheques were obtained from National Bank of Kenya Limited (the plaintiff’s bankers) which confirmed the fact that indeed the two cheques were paid upon presentation by the defendant. The plaintiff further produced a copy of his bank statement which established that indeed the said sums were paid to the defendant. The plaintiff testified that he paid a further sum of KShs.30,000/= to a director of the defendant, one Zakaria Mwangi, through M-Pesa on mobile phone no.0720671717. The plaintiff testified that he paid this sum to the defendant on the understanding that he would be supplied with a Massey Ferguson tractor together with a plough. That was not to be. This is because the defendant failed to keep its part of the bargain. The plaintiff therefore urged the court to compel the defendant to refund the purchase price whose consideration wholly failed.
This court has carefully considered the facts of this case. The evidence that was adduced by the plaintiff in support of his case was uncontroverted. This court holds that the plaintiff proved, to the required standard of proof on a balance of probabilities, that he indeed paid to the defendant the sum of KShs.1,030,000/= for the supply of a tractor and a plough which the defendant failed to deliver. This court has perused the defence filed by the defendant. The said defence constitutes of mere denials and does not shed light on any of the averments made by the plaintiff in his plaint. The defendant did not attend court to adduce evidence in support of its defence despite being served with a hearing notice.
In the premises therefore, judgment is entered for the plaintiff as against the defendant for the sum of KShs.1,030,000/= being in respect of the sum the plaintiff paid to the defendant for the supply of a tractor and a plough which were not delivered. The plaintiff shall be paid interest at court rates of 14% per annum from 5th August 2010 when this suit was filed. The plaintiff shall have the costs of this suit.
DATED AT KAKAMEGA THIS 21ST DAY OF JUNE 2011
L. KIMARU
J U D G E