Case ID:168526

Patmose Technical Services (K) Limited v Rural Electrification Authority [2020] eKLR

Case Metadata

Case Number:

Commercial Case 475 of 2012

Parties:

Patmose Technical Services (K) Limited v Rural Electrification Authority

Date Delivered:

21 Dec 2020

Case Class:

Civil

Court:

High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Case Action:

Judgment

Judge(s):

Maureen Akinyi Odero

Citation:

Patmose Technical Services (K) Limited v Rural Electrification Authority [2020] eKLR

Court Division:

Commercial Tax & Admiralty

County:

Nairobi

Case Outcome:

Plaintiffs suit succeeds

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

COMMERCIAL & TAX DIVISION

COMMERCIAL CASE NO. 475 OF 2012

PATMOSE TECHNICAL SERVICES (K) LIMITED..PLAINTIFF

VERSUS

RURAL ELECTRIFICATION AUTHORITY ..........DEFENDANT

JUDGMENT

1. PATMOSE TECHNICAL SERVICES (K) LIMITED

the Plaintiff herein instituted this suit by way of the Plaint dated

13

th

July 2012

. In their Plaint the Plaintiffs sought for Judgment for:-

1.

USD 199,172.87 being the value of ACSR conductors supplied;

2. Interest on (1) above at the commercial rate of 18% per annum from 8

th

August 2010; a month from the date of delivery note until payment in full.

3. Cost of the suit together with the interest thereon at Court rates from the date of filing this suit until payment in full.

4. Any other or further relief (s) as this Honourable Court may deem proper to grant.

2. The Respondent

RURAL ELECTRIFICATION AUTHORITY

filed a Defence dated

15

th

August 2012

praying that the Plaintiffs suit be dismissed on its entirety and that costs be awarded to the Defendant. The hearing of this suit commenced way back on

19

th

September 2014

before

Hon. Lady Justice Jackie Kamau

who heard the evidence of all the five (5) witnesses for the Plaintiff. Thereafter I took over conduct of the matter on

14

th

March 2019

and heard the evidence for the Defence.

THE EVIDENCE

3. PW1 SAMEET PATEL

, was the Sales and Marketing Director of the Plaintiff, a limited liability company carrying out the business of supplying electrical materials especially conductors, cables, stay wires and binding wires within the Republic of Kenya.

PW1

relied on his written statement dated

13

th

July 2012. PW1

told the Court that on or about

February 2010

the Plaintiff supplied to the Defendant at their yard in Embakasi under

LPO Number ********

192 drums (equivalent to

444,100

metres) of Aluminium Conductors Steel Reinforced

(ACSR)

cables. Upon delivery it was realized that the

ACSR

was in excess of the amount indicated in the LPO by

198,958

metres.

4. PW1

states that officers of the Defendant who were present at the yard specifically one

Mr. Joel Omusebe

the Defendants Senior Procurement Officer, pleaded with the Plaintiffs Officers to offload the excess of

198,958

metres as there was at the time a low supply of

ACSR

conductors in the market and the Defendant was facing shortages of the products. The said

Mr. Joel Omusebe

informed the Plaintiff that an LPO for the excess supply would be forwarded to the Plaintiff in due course. Given the longstanding cordial business relationship that existed between itself and the Defendant the Plaintiff accepted to offload the excess supply of

ACSR

which was duly received by the Defendants Officers at the site.

5. Later the Plaintiff received another LPO Number

****

from the Defendant and raised a delivery note

No. 1783

dated

7

th

July 2010

for the supply of

198,958

metres of

ACSR

which had been supplied to the Defendant in

February 2010

. However the Defendant declined to sign the delivery note for the supply of the extra

198,958 metres

and further failed and/or declined to remit to the Plaintiff the sum of

USD 199,172.87

being payment for the same. The Plaintiff then filed the present suit.

6. PW2 JOSHUA MUTISO

was employed by the Defendant as a store keeper and states that in the year

2010

he was based at the defendants Embakasi yard.

PW2

states that whereas he did not witness the actual delivery of the

ACSR

at the Embakasi yard he did peruse the paperwork which indicated that an excess of the material was delivered.

PW2

also states that one

Teddy Odhiambo

who was his supervisor confirmed that the excess supply of

Kshs. 198,958 metres

was delivered and signed for the same.

7. PW3 ALI ABDI

told the Court that at the material time he worked for the Defendant as a store-keeper whose duty was to receive materials, maintain documentation and ensure the safe custody of supplies and to issue out the same only to authorized users.

PW3

states that on

10

th

February 2010

, the Plaintiff delivered cable conductors at the Defendants Embakasi yard.

PW3

states that one

JOSHUA MUTISO

brought him the offloading schedule and summary indicating that an excess supply of

198,958 metres

was delivered.

PW3

states that he had no reason to doubt the information given to him by

‘Mutiso’

.

8. PW4 MICHAEL NDOLO MUTUA

is a Factory Manager employed by the Plaintiff.

PW4

relied on his written statement dated

13

th

July 2012

. He told the Court that between

26

th

January 2010

and

2

nd

February 2010

, he and his colleagues delivered at the Defendants Embakasi yard

192

drums of

ACSR

cables in fulfillment of

LPO No. *****

.

PW4

state that after delivering the required

441,000 metres

ACSR

as per the said LPO, an excess of

198,958 metres

remained. He states that he called and spoke to one

Mr. Joel Omusebe

the Defendants Procurement Officer who told him to offload the excess supply of

ACSR

as the Defendant was at the time facing shortages of the conductors.

PW4

complied with the request of

Mr. Omusebe

and offloaded the excess with the promise that an LPO to cover this extra supply would be forwarded to the Plaintiff later.

PW4

states that the offloading was done in the presence of

Mr. Musyoka

and

Mr. Ndolo

both representatives of the Defendant.

9. PW5 JONATHAN NZIVO

told the Court that he worked with the Plaintiff as an incharge of stores.

PW5

confirms that between

26

th

January 2010

and

2

nd

February 2010

he and his colleagues delivered to the Defendants yard in Embakasi

ACSR

conductors in satisfaction of an

LPO No. *****

.

PW5

states that though the LPO was for

441,000 metres

of

ACSR

, there remained an excess of

198,958 metres

. That his colleague

Mr. Ndolo

(PW4)

called and spoke to

Mr. Joel Omusebe

an Officer of the Defendant who instructed them to offload the excess

198,958 metres

of

ACSR

and promised that the Defendant would issue the Plaintiffs with another LPO to cover this excess supply. This marked the close of the Plaintiffs case.

10. The Defendant called one witness in support of its case.

DW1 WILFRED ODUOR

was the Head of Procurement at the

Rural Electrification Authority

at the material time.

PW1

told the Court that he was not personally present at the Defendants yard when the delivery of the

ACSR

cables was made by the Defendant as his offices were based at

Chancery House

along

Valley Road

in Nairobi.

DW1

stated that one of the Defendants Officers Mr.

Ted Odhiambo

oversaw the offloading of the

ACSR

by the Plaintiff.

DW1

categorically denies that any excess supply of

ACSR

was offloaded. He denies that any request was made to the Plaintiffs to offload the excess cable conductor and vehemently denies that the Defendant was in need of that excess supply due to a shortage in the market. As such

PW1

asserts that the defendant

does not

owe the Plaintiff any money for this alleged supply of

195,958 metres

ACSR

cable conductors.

11. Upon the close of evidence both parties were invited to file their written submissions. The Plaintiff filed its written submissions dated

29

th

May 2020.

Whilst the Defendant filed its submissions dated

2

nd

July 2020

.

ANALYSIS AND DETERMINATION

12. I have carefully considered the evidence adduced in this case the written submissions as well as the relevant law. The issue which arises in this case whether the Plaintiff has proved its case on a balance of probability.

13. It is trite law that he who alleges must prove. In Civil cases this means that any party seeking to rely on the existence of a set of facts must prove that those facts exist. This is what is known in law as the

“Burden of Proof”

and is encapsulated in

Section 107

of the

Evidence Act, Cap 80 Laws of Kenya

which provides as follows:-

“107 Burden of Proof

1. Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

2. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”

14. In the case of

GICHINGA KIBUTHA –VS- CAROLINE NDUKU [2018]eKLR

the Court stated:-

“It is therefore, settled law that in Civil cases, a party who wishes the Court to give a Judgment or to declare any legal right dependent on a particular fact or sets of facts, that party has a legal obligation to provide evidence that will best facilitate the proof of the existence of those facts. The party must present to the court all the evidence reasonably available on a litigated factual issue.”

15. The

Sale of Goods Act, Cap 31, Laws of Kenya

defines the terms

“delivery”

and

“acceptance”

and sets out that legal implication.

Section 2(1)

defines the term

“delivery”

as follows:-

“Delivery”

means voluntary transfer of possession from one person to another. Further

Section 36

of the same Act defines

“Acceptance”

as follows:-

“36 Acceptance

The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them or when the goods have been delivered to him, and he does any act in relation to them which is inconsistent with the ownership of the seller, or when, after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them.”

16. Therefore in cases where goods are delivered and are accepted and retained by the consignee, where that possession is inconsistent with the ownership of the said goods by the seller, if the goods are not declined and/or returned, then the consignee is deemed to have

‘accepted’

said goods. The Defendants position is that it did not order the extra

198,958 metres

of cable conductor nor did it accept or retain possession of the same. As such the Defendant states that it cannot be ordered to pay for goods which they neither received nor used.

17. It is not in dispute that the Plaintiff was a supplier of

ASCR

cable conductors to the Defendant. Neither is there any contention that the Defendant had issued the

LPO No. *****

seeking delivery of

444,100

metres

ACSR

. The crucial question here is whether the Plaintiff infact

delivered

and the Defendant accepted the

excess

198,958 metres

of

ACSR

.

18. PW1

told the Court that the Defendant through one of their employees requested the Plaintiff to offload the extra

198,958 metres

of

ACSR

promising that an LPO to cover this delivery would soon follow. This evidence is supported by

PW4

and

PW5

both employees of Plaintiff of who testified that they delivered the actual consignment to the Defendants yard at Embakasi.

PW4

told that Court that he called and spoke to a

Mr. Joel Omusebe

the Senior Procurement Officer of the Defendant who instructed that the excess

ACSR

cable be offloaded.

PW4

told the Court that the delivery was witnessed by employees of the Defendant. At page 12 of the Plaintiff’s Bundle of Documents file don

12

th

June 2012

is a hand written note which read as follows:-

“NB

Supplied in excess

198,958

Dated 10-2-2010.”

This endorsement is only signed.

PW2

Joshua Mutiso

an employee of the Defendant confirms that he recognizes the signatures of his colleagues

‘Ted Odhiambo’

and ‘

Abdi Ali’

(PW3)

on the delivery documents. On his part

PW3

told the Court that this excess delivery was never returned to the Plaintiff.

19. The said

Mr. Joel Omusebe

did not testify in this case to confirm or deny the claims made by

PW1

.

Mr. Omusebe

was an employee of the defendant at the material time. It is the Defendant who would have been best placed to trace and avail this person to testify in this matter. The fact that the Defendant did not avail this witness leads to the presumption that his evidence may have been adverse to the Defendants case. That is why the Defendants did not bother to call him in order to deny the claims made by

PW1

.

20. PW2

and

PW3

were both employees of the Defendant at the material time. Both witnesses supported the evidence of the Plaintiff with respect to the delivery in question.

PW2

told the Court that the

ACSR

conductors were delivered at the Defendants yard and states that the entire consignment was received by one

Ted Odhiambo

the clerk in charge of the Embakasi yard.

PW2

states that although he did not himself witness the delivery, he subsequently received the relevant paperwork from

Mr. Ted Odhiambo

. That the said

Ted Odhiambo

informed

PW2

that he had been verbally instructed by

Mr. Joel Omusebe

from the Plaintiffs Head office to offload the remaining

198,958

metres of

ACSR

conductor due to the market shortage of the commodity.

PW2

confirmed that he signed the offloading schedule sheet when the same was brought to him by

Ted Odhiambo

thereby effectively confirming delivery of the extra

198,958

metres of cable.

21. PW3

who was also an employee of the Defendant told the Court that he signed the relevant offloading schedule confirming that an excess delivery of conductors being

198,958

metres was made at the Defendants Embakasi yard (see page

6

and

12

of Plaintiffs bundle filed on

3

rd

July 2012

).

22. Once again the Court takes note that this

Mr. Ted Odhiambo

who at the material time was an employee of the Defendant was not availed as a witness in this case. This was a crucial witness as it was he who actually received the delivery of

ACSR

at the Defendants Embakasi yard. The failure by the Defendants to call this person as a witness is very telling. The Court is at liberty to conclude that the Defendant deliberately omitted

Mr. Ted Odhiambo

as a witness because his evidence would have been adverse to the Defendants case.

23. From the testimony of the Plaintiffs witnesses I am satisfied that the Plaintiff did indeed deliver to the Defendant an extra

198,958

metres of

ACSR

cable conductors. This extra supply of

ACSR

was duly acknowledged by the employees of the Defendant (see page 12 of Plaintiffs bundles). Further

PW2

and

PW3

both employees of the Defendant confirmed having signed the document thereby acknowledging receipt by the Defendant of the excess

198,958

metres of

ASCR

. I am satisfied further that the Defendant did not reject or return this extra consignment but actually retained possession of the same.

24. The Defendant having accepted and retained the extra supply of

ACSR

cable is liable to pay for the same. I find that the Plaintiff has proved its claim on a balance of probability. Accordingly the Plaintiffs suit succeeds and I enter Judgment in favour of the Plaintiff against the Defendant for:-

i. USD 199,172.87 being the value of ACSR conductors supplied.

ii. Interest on the sum awarded in (i) above at Court rates from the 8

th

August 2010 the date of the delivery note until payment in full.

iii. Costs of this suit as well as interest thereon at Court rates from the date of filing of the suit until payment in full.

It is so ordered.

Dated in Nairobi this 21

ST

day of DECEMBER, 2020.

………………………………..

MAUREEN A. ODERO

JUDGE