Devani v Al-Karim Stores (MSET Nairobi E001 of 2022) [2023] KEMSET 4 (KLR) (Civ) (12 January 2023) (Judgment)
Neutral citation:
[2023] KEMSET 4 (KLR)
Republic of Kenya
MSET Nairobi E001 of 2022
J.Bett, Chair, R.Katina, Vice Chair, J.Were, A.Gikuya & A.Kibet, Members
January 12, 2023
Between
R H Devani
Claimant
and
Al-Karim Stores
Respondent
Judgment
Introduction
1.This is a claim filed through the e filing platform on May 5, 2022. The Claimant, R H Devani Ltd was represented by the Mr Yusuf, from the firm of Shehi Kipkorir & Yusuf Advocates LLP-who described the Claimant as a Small & Micro Enterprise dealing in manufacturing and general supplies of goods
2.The claim as initially stated was for recovery of Ksh 88,010.32/= being a balance due from the Respondent for the supply of an assortment of shop merchandise on diverse dates up to 2019.
3.The Respondent on the other side was represented by the firm of Ameli Inyangu Advocates whose brief was held by Ms Azei advocate. The Respondent too, is described as a Micro and Small Enterprise trading in household goods.
4.This matter was mentioned for directions on April 28, 2022. Directions were issued as follows;i.The claimant granted leave to amend pleadings accordinglyii.The claimant to file and serve the amended pleadings within 3 days in any case by June 13, 2022iii.The Respondent to file and serve the response within 14 days of service of the claim and in any case by June 27, 2022.iv.The claimant to file and serve reply to response within 7 days and in any case by July 4, 2022.
5.The matter was mentioned to confirm compliance on 11/8/2022 and hearing date was fixed for hearing on September 2, 2022 although it did not proceed as the claimant’ witness expressed inability to join the virtual session. The matter however was set for October 28, 2022
Claimants Case.
6.The matter proceeded for hearing on October 28, 2022, with Mr Altaf Sameja the Sales and marketing manager of the claimant testifying on behalf of Al-Karim Stores. He relied on his witness statement dated May 5, 2022, demand letter dated 13th April, bank letter, several invoices, debtor’s statement, delivery notes of goods supplied as per the list of documents dated May 5, 2022.
7.The claimants witness averred that he visited Al-Karim stores and supplied goods that were to be paid for within 60 days. That there were payments made by the Respondent initially but thereafter the payments ceased and were not forthcoming until 2022, meanwhile the responded kept requesting for additional goods which were supplied.
8.The claimant confirms that the Responded partly paid for the goods but later refused to clear the balance.
9.Mr Altaf added that when he pressed for the balance to be cleared, the Responded instead wanted to return some of the goods which he refused, saying that there was no written agreement for return of unsold goods. That the Respondent paid Ksh 4,975/= only after the claim was filed at the Micro and small Enterprises Tribunal, thus balance of ksh 83,035/= which remained unpaid is the amount he is claiming.
Respondent’s Case
10.The Respondent had one witness Mr Abdiwahab Abdikarim who relied on his witness statement dated August 17, 2022 and filed on 19August 2022.He produced list of documents dated August 16, 2022 filed on August 19, 2022 (marked as Exhibit 1.)
11.He contends that the claimant supplied him with goods in 2016 or thereabout with understanding that he was to pay the claimant after selling them and that all the goods were perishable in nature.
12.He stated that he sold most of the goods and promptly paid the Respondent before they expired and did not pay for the goods that were not sold which later expired and became unsuitable for selling.
13.He told the Tribunal that the claimant went out of the country and he had to wait until he returned for them to discuss on what to do with the unsold goods.
14.That in 2019, the Respondent further states that the claimant took away some goods which he supposed were being returned to the manufacturers as they were expired.
15.When cross examined, the Respondent acknowledged that the delivery notes were bearing his stores stamps and had his signatures. He also agreed that the delivery notes contained the words “goods once accepted cannot be returned’’. when asked if he had evidence that the claimant took away some goods to be returned to the manufacturers, he replied in the negative, he said they dealt in verbal agreements with the claimant and therefore he did not have documentary evidence.
Written Submissions.
16.The parties closed their respective cases with a request to file written submissions. Suffice it to note that it is only the Claimant who filed written Submissions which we proceed to consider in summary.
17.In support of the claimant’s position, the learned counsel filed submissions dated December 1, 2022. He outlined the facts on statement of claim, being;i.Judgement in the sum of ksh 88,010.32ii.Costs of the claim.iii.Refund of the Advocates fees being ksh 30,000iv.Interest on all the remedies.He then submitted on the following (2) two issues for determination;I.Whether the Respondent has an outstanding debt of 88,010.32/= being the purchase price for the goods received from the claimantII.Who bears the cost of the claim.
18.On the first issue, the claimant’s Counsel submitted that goods were supplied by the claimant to the Respondent at different times prior to 2019. He produced various documents to support his assertion including delivery notes signed by the Respondent which he states have not been fully settled since 2019.
19.He submits that a payment of Ksh 4,975 was made by the Respondent after the claimant filed this claim. The learned counsel avers that the Respondent’s payment of ksh.4975 on January 21, 2022 negates the allegation by the Respondent that there was understanding that unsold goods would be returned.
20.He further submitted that the claimant, did not pick any goods from the Respondent, that there is no prove to support the allegation. He relied on the case of Westmont Power Kenya Ltd (2003) Eklr ‘’that…a general allegation of fraud or illegality or bare denial in not sufficient to infer liability on the part of those who are said to have committed it..’’
21.On the second issue as to who bears the cost, the claimant relying on the case of Party of Independent Candidate of Kenya& another vs Mutula Kilonzo and 2 others (2013) eKLR which cited with approval the words of Murray CJ in Levben Products Vs Alexander Films (SA) (PTY)Ltd 1957 (4) SA 225 (SR) at 227, underlined the general rule that Costs should be awarded to the successful Party.Thus submitting in conclusion that the Claimant is entitled to the cost of the instant Suit.
22.The claimant made a last plea that he deserved the orders sought and the same should be allowed as prayed.
Determination
23.Arising from the claim and the evidence adduced by the parties, the following issues presented themselves for Tribunal’s determination;a.Whether the Respondent owes the Claimant Ksh 83,010,32/= for goods delivered.b.Whether there was an agreement between the claimant and the Respondent that goods that were not sold would not be paid for but would be returned to the supplier.c.Who bears the cost of this claim?
Goods Delivered
24.As to whether the Respondent obtained an assortment of household goods from the Clamant, the Claimant relied on the delivery notes/ invoices numbered xxxx,xxxx,xxxx,xxxx The delivery note was received by the Respondent by appending stamp with the business name ‘A-Karim stores’ together with customer’s signature. We therefore find based on the provided evidence that goods were delivered to the Respondent by the claimant.
25.As to whether the claimant collected expired goods, the Tribunal took notice of the inconsistency in the Respondent’s oral evidence, where he said that the Respondent came and picked expired goods vis a vis his statement, where he states in paragraph 6. ‘’That therefore I have not withheld or in any case owe the Respondent the amount of ksh 88,010.00 or whatsoever as alleged as the same are a business lose due to perishable nature of the goods’’ thus admitting that he incurred business lose when the goods expired.
26.Two pertinent questions then arose. Was there an agreement between the Claimant and the Respondent on what to do with expired goods? And why should the Respondent pay Ksh 4975/= after this matter was filed in the year 2022. And what happened to the goods that expired and which particular goods expired?There is no evidence presented to us by the Respondent to support his allegation that there was such agreement. No inventory of goods nor the dates of expiry for the supplied goods was ever produced. The oft-quoted maxim “he who alleges must prove” defeats the Respondent’s unsupported allegations here.It therefore behooves this Tribunal to find that the Respondent was responsible for his own ‘business lose’ according to his own admission. The Tribunal also took notice that the Respondent has not provided the value of the merchandise sold and the value of the remaining goods, but goes ahead to give a sum of money paid for goods sold as depicted in Mpesa statement to be Ksh 165,704.00 and that the value of spoilt goods to be 25,756.00. This once again begs the question as to which goods were these that got spoilt that are worth Ksh 25,756.00. If indeed the respondent was selling on behalf of the supplier as we are told in his statement, there wasn’t a clear account of each item that got spoilt?
Outstanding debtHaving considered the evidence tendered by the Claimant, and the response by the Respondent the Tribunal established that the Respondent made Mpesa payments on various dates including the latest Ksh 4975/= . The outstanding Claim of Ksh 88.010.32 was reduced to Ksh 83,010,32/=. Debtors statement attached dated April 30, 2021 with 8 entries indicating Mpesa receipts confirms that balance was initially Ksh 88,010.32.There was no evidence of rival record by the Respondent of the Net worth of goods received. We see on the debtors statement that the Claimant supplied the Respondent with an assortment of goods worth Ksh 191,460.32/= in the absence of any other evidence to the contrary we find the Respondent owes the Claimant the balance Ksh. 83,010.32/= being the outstanding balance after the recorded 8 instalments were made.
Costs
27.On the issue of costs, the Tribunal notes that the Claimant prayed for costs and relied on authority to bolster his submission.The Tribunal confirms by citing In Republic v Rosemary Wairimu (Ex parte Applicant) v Ihururu Dairy Farmers Co-operative society Ltd Judicial Review application No 6 of 2004 Mativo J held that the issue of costs is the discretion of the court and is used to compensate the successful party for the trouble taken in prosecuting or defending the case and not to penalize the losing party. Reiterating that the import is that a successful party is entitled to costs unless he or she is guilty of any misconduct or there exists some other good reason and or cause for not awarding costs.The Tribunal has considered the expenses incurred by the claimant, the time it taken to bring this matter for hearing and determination and finds it just and proper to award costs to the Claimant
Orders
28.Flowing from this reasoning, we find that in the interest of justice, the Respondent should pay the Claimant:-a.The outstanding debt of Ksh 83,010.32/=b.The cost of the claim of Ksh 30,000/=c.Interest on (a) and (b) above at prevailing court rates. Those then are the Orders of the Tribunal.
DATED DELIVERED AND SIGNED ON THIS 12TH DAY OF JANUARY 2023.DR. J. BETT....................[CHAIRMAN]R. KATINA....................[VICE-CHAIR]HON. J. WERE.....................[MEMBER]A. GIKUYA........................[MEMBER]A. KIBET.........................[MEMBER]Judgement delivered virtually in the presence of:1. Ms. Musau holding brief for Mr. Yusuf for Claimant.2. Mr Isaac Kapelkinei–Tribunal Administrator