(Being an appeal from the judgment of the Hon. Francis N. Kyambia (C.M.) delivered on the 23rd day of July 2021 in Mombasa Chief Magistrate’s Court Civil Suit No.2354 of 2013 together with the consequential decree thereon between)
- The Appellant, Damco Logistics Kenya limited was aggrieved by the judgment of the Hon. Francis N. Kyambia (C.M.) delivered on the 23rd day of July 2021 and appealed to this Court against the entire judgment on the following grounds: -
- The learned trial magistrate erred in law and in fact in holding that the defendant was liable for occasioning the delay in the clearance of the consignment that were being cleared by the plaintiff and the extra costs incurred by the plaintiff.
- The learned trial magistrate erred in law and in fact in holding that the invoices produced by the plaintiff sufficiently proved its case against the defendant.
- The learned trial magistrate erred in law and in fact in holding that the defendant should have pleaded his counterclaim separately.
- The learned trial magistrate went into error in disregarding the doctrine of stare decisis when he failed to follow the decisions of the Court of Appeal in County Government of Kilifi versus Mombasa Cement Limited [2017] eKLR and Total (Kenya) Limited Formally Caltex Oil (Kenya Limited v Janevams Limited [2015] eKLR despite the same being referred to by counsel for the appellant.
- The learned trial magistrate erred in law and fact in allowing the plaintiff’s claim and dismissing the defendant’s counterclaim.
Prayers to this court :
- Allow this Appeal.
- Set aside the entire judgment of the trial court, and substitute it with an order dismissing the plaintiff’s suit, and allowing the defendant’s counterclaim with costs.
- Award the costs of this appeal to the appellant.
- This is a first appellate court and the duty of this court is to re-evaluate the evidence on record and arrived at its own conclusions bearing in mind that it neither saw nor heard the witnesses as was held in the case of Sielle vs Associated motors t
- The facts of the case are that the respondent (a clearing and forwarding company )filed a claim vide amended plaint dated 5.12.08 in the lower court against the appellant (a shipper ) seeking Kshs. 1,349,059.38 /= being charges it paid to Kenya Ports Authourity on account of late processing of documentation;
- (a) 5x 20fy containers STS Electrolytic manganese Dioxide (Release order paid for on 19.7.99 and documents released on 14.9.99 (KRA receipt no. ITO5843R )Kshs.261,165.00 (25 days delay).
- P& 0 Ned Mwanza customs -540,500/=
ii.(a) 2 x 20ft container STC 45 Skids of Tinned steel paid for on 26.8.99 and documents released on 17.9.99 (receipt number CM07480R) KPA charges Kshs. 42,420/= .(15 days delay ).
(b) WEC Rotterdam
iii. (a)2x 20ft container STC 42 skids Tinned Skids of paid to KPA on 26.8..99 charges Kshs. 30,280/=. (receipt no. CM0748GR) Released on 13.9.99 (11 days delay ).
b. WEC Rotterdam
iv. (a)1x 20ft for container STC 20 cartons of kraft board paid for on 6.8.99 (receipt no. 1706049R) charges Kshs 66,237.50/= documents released on 13. 9.99 .
b. CMBT pangani
v. (a) 4x20ft containers STC Amominum chloride NA paid for on 20.9.99 receipt no. CM7660R ) charged Kshs. 534 /= released on 30.9.99
4. The respondent also expressed fear that the appellant would claim demurrage charges and sought and sought a declaration that the appellant is not entitled to demurrage . Further that despite demand the appellant refused and or neglected to pay the same sum .
5. The appellant who was the defendant in the lower court filed defence and counter- claim and denied that it was appointed to release documents for consignment on behalf of Ever-ready Baterries (K) Limited . it denied owing the respondent any monies at all. In the counter claim it pleaded that on diverse dates between the year 1997 and 1999, the plaintiff undertook by way of a written guarantee to collect containers from defendant and return them within a stipulated period of time . it was agreed that in case of default of returning the said containers within stipulated time the respondent was to pay USD 8 each for 20ft containers and USD 16 per each 40 ft container . Also that the containers would be returned in good and clean condition and incase of contravention then he appellant debit the respondent with cleaning and repair charges . Further that on diverse dates between 1997 and 1999 the plaintiff pursuant to the said guarantee took possession of various containers form the defendant and detained them beyond the agreed 14 days as per the guarantee and thus attracting demurrage, repair and cleaning charges in the sum of USD 7,061 . Which it now claims and that the respondent refused and or neglected to settle the same despite demand. The respondent joined issue with the appellant in the reply to defence and counter claim dated 20.12.99. it denied the claim in the counter-claim and sought its dismissal .
6. respondent called one witness namely Moses Mwangi Mwaura (Pw1) who led his case based on the pleading and documents filed herein. He told this court that the appellant delayed the release of the cargo and hence they incurred the claimed expenses in the sum of Kshs. 1349,059.38 /= . On cross -examination he said that the claimed laid by the appellant were not related to this case .
7. The appellant on its part called Mr. Taib Venge (Dw1) who testified that the appellant is a container shipping company and that the respondent is a clearing agent who clears goods through the customs and deliver to the consignee’s agent and that agent gives a guarantee to return the containers within 14 days and incase of default for 20ft containers charges of USD 8 per day for each and USD 16 per day for each for the 40 ft container that the respondent was the clearing agent . Dw1 testified that the respondent failed to return containers on diverse dates between the year 1997 to 1999 and they accumulated demurrage charges of USD 18,123.07 and 115,737 /= out of which it paid USD 8527.50 leaving a balance of UDS 9595.57/= and Kshs 115,737 for which they seek judgement.
8. The appellant submitted that the trial Magistrate erred in finding that the claim was proved yet the same was not supported by evidence as the mathematics did not add up .
9. Also that respondent relied on invoices which are not proof of payment. it relied on invoices which is not proof of payment. The appellant pointed out the sums claimed were not linked to the appellant and some of them were also not pleaded. . In the case of the County Government of Kilifi Vs Mombasa Cement Limited (2017)KLR.The Court of Appeal at Mombasa held that “however, Order 7 Rules 3 of the Civil Procedure Rules gives court a wide discretion such that, on the application of the Plaintiff, the court may reject a counterclaim where it may not be convenient or where in the opinion of the court the counterclaim ought not to be allowed. No doubt, that this is a wide discretion and the reason as to why a court would disallow a counterclaim would be many and valid on to be decided on a case to case basis.”
10. It was also submitted that the doctrine of stare decisis provides that the decisions of superior courts are binding on the lower courts and cited the case of Gatirau Peter Munya vs Dickson Mwenda Kithinji and 2 others 2014 e KLR. Further that they produced all the documents to prove their claim against the respondent.
11. Respondent submitted that the claim was for extra charges and demurrage which was proved on a balance of probabilities and that the figures were not controverted at all . Also that the delay of issuance of the released order was not explained . further that the counterclaim was not related to the claim herein and that the court had wide discretion under Order 7 Rule 3 of the CPR to reject counterclaims as was held by the court of appeal in the said case of the County Government of Kilifi Vs Mombasa Cement Limited (2017)KLR (Supra ) .
12. I have carefully re-evaluated the entire evidence on record and the able submissions by both counsel The issue arising for determination is whether the respondent proved its case in the lower court on a balance of probability .
13. I seen the miscellaneous receipt on page 41 which is illegible, receipt for kshs. 540,500 /= receipt for Kshs. 36.800/= (pg 59) )receipt for Kshs 68,098/- pg 25 ) which are the only receipts produced herein. The same do not specify the container in respect to which they were issued or rent paid for . The respondent is a clearing and forwarding agent. This court takes judicial notice that cargo containers are usually distinguished by numbers and sizes . There is nothing distinguishing the foregoing receipts from any other receipt which could have been issued to respondent for unrelated containers. The receipts are also not linked to the invoices are rightly submitted by the appellant. In any event the sums in receipts for Kshs. 36.800/= (pg 59) )receipt for Kshs 68,098/-( pg 25 ) were not pleaded . It is trite law that special damages must be specifically pleaded and strictly proved as was held in the case of Douglas Kalafa Ombeva v David Ngama [2013] eKLR, the Court of Appeal held that:
“Loss of earnings is a special damage claim, and it is trite law that special damages must be pleaded and proved. Where there is no evidence regarding special damages, the court will not act in a vacuum or whimsically”
14. I have not seen receipts for the pleaded sum of Kshs 261,165/= , 45.200/= 66,237/= and 534/= on record . The respondent produced most invoices to support his claim and there are no accompanying receipts. In commercial transactions invoices merely indicate the sum to be paid and cannot thus be proof of payment as was held in the case of Total Kenya Ltd formerly Caltex Oil (K) Ltd –vs- Janevams Ltd (2015) eKLR where the court stated in the case of Great Lakes Transport Co (U) Ltd –vs- Kenya Revenue Authority (2000) eKLR 720 on the production of proforma invoices, the court stated thus”
“What we mean is that, in case the goods for which an invoice is issued have been paid for, one would normally expect endorsements such as the word “paid” on the invoice and that would turn the status of the invoice into a receipt. Otherwise, in our minds, a proforma invoice is given in respect of an advice sought from a supplier as to what the cost of goods sought and an invoice is given in cases where an order for supply of goods has been made but payment is not yet made. In either case non of the two documents would amount to a receipt.”```
15. I find that the pleaded sums of Kshs Kshs 261,165/= , 45.200/= 66,237/= and 534/= have not been strictly proven as required . The trial magistrate therefore erred in finding that the respondent had proved its case on a balance of probability yet the special damages were not specifically pleaded and strictly proved as required by law.
16. Now turning to the counterclaim , the appellant told the court that it proved its case on a balance of probability since they adduced evidence to the effect that between the years 1997 and 1999 the respondent defaulted in returning containers within the agreed 14 days and thus accumulated demurrage , repair and cleaning costs of charges of USD 18,123.07 and 115,737 /= out of which it paid USD 8527.50 leaving a balance of UDS 9595.57/= and Kshs 115,737 for which they seek judgement. I also note that no particulars of the containers and the specific dates were given by the appellant . it is trite law that special damages must be specifically pleaded and strictly proved as I have already held herein above . The appellant raised a blanket claim for special damages which cannot succeed. In any event, the transactions the appellant raised in the counterclaim have no nexus to the claim of the respondent herein as rightly held by the Learned the Trial Magistrate . the counterclaim is devoid of merit and so I proceed to dismiss it .
17. 18. The respondent failed to prove his case in the lower court on a balance of probability and thus I proceed to set aside the judgment dated 23.7.21 and all the consequential orders .
On the issue of costs , it is trite law that costs follow event . Since no party has succeeded in their respective cases, each party will bear its own costs of this appeal and in the lower court .
T.A ODERA
JUDGE
2.5.24
DELIVERED VIRTUALLY VIA TEAMS PLATFORM IN THE PRESENCE OF LELU FOR THE APPELLANT
N/A FOR RESPONDENT
Court Assistant KALEKYE
LELU : We seek a copy of the judgment .
Order : same be supplied .