[2016] KEHC 5417 (KLR)
The appellate court found that the trial magistrate's judgment was based on sound evaluation of the documentary evidence, which established that the respondent supplied the goods ordered by the appellant in 2005 and that the outstanding balance was correctly calculated after accounting for payments made. The...
Source-derived case information.
- Citation
- [2016] KEHC 5417 (KLR)
- Parties
- Appellant: Thara Orchads Limited; Respondent: G North & Sons Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 47 of 2011
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Goods Sold and Delivered, Counterclaim Dismissal, Documentary Evidence, Commercial Transactions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Thara Orchads Limited
Appellant
G North & Sons Limited
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial court erred in law and fact by allowing the respondent's claim for goods sold and delivered.
- 2 Whether the trial court erred in dismissing the appellant's counterclaim.
- 3 Whether the evidence adduced by the appellant was given due weight by the trial court.
Ratio Decidendi
The appellate court found that the trial magistrate's judgment was based on sound evaluation of the documentary evidence, which established that the respondent supplied the goods ordered by the appellant in 2005 and that the outstanding balance was correctly calculated after accounting for payments made. The appellant's own witness confirmed the orders and receipt of goods for 2005, and the counterclaim was based on a separate 2004 transaction, which was not relevant to the respondent's claim. The court concluded that the appellant failed to establish any valid defence or counterclaim, and the respondent had proved its case on a balance of probabilities. There was no basis to disturb the...
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL NO. 47 OF 2011
THARA ORCHADS LIMITED.........................................APPELLANT
VERSUS
G NORTH & SONS LIMITED......................................RESPONDENT
JUDGMENT
(Being an appeal from the judgment delivered by Honourable
Mrs. L. Arika,Senior Magistrate, Milimani Commercial
Courtson 15th June, 2011
This appeal arises from the Judgment of the lower court dated 11th January, 2011. The appellant had been sued by the respondent for the recovery of Kshs. 502,073/= being the sum due and owing for goods sold and delivered. The appellant had denied the claim and raised a counter claim of Kshs. 275,335. 50/=.
Both parties called one witness each and produced some documents to advance their respective cases. After the hearing the learned trial magistrate believed the evidence of the respondent and gave judgment in its favour as claimed in the plaint. The appellant’s defence and counter claim were dismissed with costs to the respondent.
Aggrieved by the said judgment, the appellant lodged this appeal on the basis that the trial court erred in law and fact by allowing the plaintiff’s suit and dismissing the defendant’s counterclaim with costs. The lower court is also faulted for failing to put any or any due weight on the evidence adduced by the defendant while putting into consideration the evidence of the plaintiff.
On the whole, the appellant alleges, the decision appealed unjustly enriches the respondent and unfairly deprives the appellant of payment due from the respondent while compelling the appellant to make further payment to the respondent.
Finally, it is the appellant’s case that the decision appealed is inconsistent with the pleadings and the evidence adduced by the parties, partial and untainable in law and in fact.
As the first appellate court I have gone through the record of the lower court and the submissions made by counsel in writing before me. This having been a commercial transaction, the evidence presented by the parties was documentary which the learned trial magistrate considered. Indeed the learned trial magistrate said as follows,
“I have carefully evaluated the evidence on record and more particularly the exhibits. P.W. 1 was Joseph Maina Kariuki the plaintiff’s accountant who delt with credit control issues. His testimony revealed that the goods ordered were specific with specific description. “
She then set out the LPOs and observed that P.W. 1 was clear the issue before the court was for orders for the year 2005 and not 2004. The orders in the LPOs tally with the orders in the delivery notes. The court then observed that,
“I am satisfied that the plaintiff supplied specific goods that the defendant ordered for and that all payments were acknowledged.”
The learned trial magistrate then analyzed the counter claim and gave reasons for finding that it must fail. Indeed, she even observed that the appellant’s witness corroborated the respondent’s case by confirming that he made the orders for the goods supplied by the respondent and that the claim was for the year 2005 orders and not 2004. That witness also confirmed the respondent’s delivery notes and receipt of invoices.
On my part, I have no hesitation in finding that the appellant is bent on avoiding its obligation to pay for goods sold and delivered as rightly claimed by the respondent. It is clear from the evidence of the appellant’s witness that he is the one who placed the orders and that they were for diverse dates in the year 2005. In his own words,
“They are different from the orders of 2004 they are for 2005 not 2004. I received the goods.”
It is also the same witness who said that the appellant’s counter claim was based on an earlier transaction in the year 2004. The witness therefore did not aid the appellant in establishing the counter claim. The invoices presented before the learned trial magistrate tallied with the delivery notes that had been presented. The respondent confirmed that the appellant paid by cheque towards liquidating the amount raised in the invoices following the appellant’s LPOs. The total amount was Kshs. 726,465/=
After the payment by two cheques of Kshs. 170,900/= and Kshs. 53,492/= respectively, the balance was Kshs. 502,073/=. This is what was claimed by the respondent. In the absence of any discounts or set offs the respondent proved its case against the appellant.
I find the judgment of the lower court was based on the evidence presented, sound reasoning and conclusions. There is no reason to disturb the same. This appeal is therefore dismissed with costs to the respondent.
Dated, signed and delivered at Nairobi this 12th day of April, 2016.
A. MBOGHOLI MSAGHA
JUDGE