Skip to content
JudgmentSAID HIRIBAE YUSUF VS10 min read

SAID HIRIBAE YUSUF VS

High Court at Garsen High Court · · M Thande

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT GARSEN

CIVIL APPEAL NO. E001 OF 2022

SAID HIRIBAE YUSUF (sued as administrator of the estate of Yusuf Wayu Wario)

GUWAGAL TRANSPORT & CONSTRUCTION CO. LIMITED.......................APPELLANTS

VERSUS

MOHAMED ABDI MOHAMED..................................................................................RESPONDENT

(An Appeal from the Ruling of Hon. P. K. Rotich Senior Principal Magistrate delivered on 13.1.22 in Garsen SPMCC NO. 7 of 2020)

JUDGMENT

  1. The background of this matter is that the Respondent filed a plaint dated 13.5.2020 and amended on 17.9.2020 against the Appellants and Co-operative Banks Limited, seeking special damages for breach of contract in the sum of Kshs. 997,000/= together with interest. He also sought a declaratory order that he is entitled to receive the sum of Kshs. 997,000/= held in the 2nd Appellant’s bank account held in Cooperative Bank.
  2. It was the Respondent’s case that the 2nd Respondent, was awarded a tender to construct an administrative office at Kipini East Ward in Tana Delta subcounty of Tana River County. Following this award, Yusuf Wayu Wario (the deceased), a director of the 2nd Respondent, requested him to supply the 2nd Respondent with building materials worth Kshs. 997,000/=.  The parties duly entered into agreement for the same with the deceased issuing to the Respondent a postdated cheque for the amount.. The Respondent averred that he delivered the building material to the 2nd Respondent and issued a delivery and invoice dated 21.8.2020, 24.8.2020 and 26.8.2020. During the construction however, the deceased died. Thereafter the 1st Respondent, as administrator of the estate of the deceased and director of the 2nd Respondent, declined to honour the agreement between the Respondent and the deceased. He deliberately refused to pay to the Respondent, the sum due from the 2nd Respondent’s bank account in Cooperative Bank.   
  3. The Appellants opposed the suit.
  4. In its judgment, the trial court found that the Respondent supplied the materials as agreed and noted that the deceased had issued a postdated cheque for Kshs. 997,000/=. The trial court proceeded to award the Respondent special damages in the sum of Kshs. 997,000/= together with costs and interest at court rates. The court further directed that the said sum held in the 2nd Appellant’s account in Co-operative Bank be utilized to satisfy the judgment.
  5. It is the said judgment that has provoked the present Appeal. The summarized grounds are that the trial Magistrate erred in law and in fact in:
  6. finding that the Respondent supplied goods and materials worth Kshs. 747,000/= and that the Respondent was entitled to profit of Kshs. 250,000/=.
  7. failing to appreciate that the sum of Kshs. 997,000/= ought to have been strictly proved, being special damages.
  8. failing to appreciate that the contract of the parties was subject to performance on the part of the Respondent.
  9. Failing to consider the evidence and submissions of the Appellants and finding that their case had contradictions.
  10. The Appellant prayed that the Appeal be allowed and the judgment be set aside as well as cots.
  11. This being a first appeal, the Court is under a duty to reconsider and re-evaluate the evidence and draw its own conclusion. However, the Court must make due allowance with respect to the fact that it has neither seen nor heard the witnesses. These principles were set out in Selle and another –vs- Associated Motor Boat Company Ltd.& Others (1968) EA 123 by Sir Clement De Lestang, V. P. as follows:

An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled.  Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should made due allowance in this respect.  

  1. As required, I have subjected the evidence adduced before the trial court to a fresh analysis and evaluation and have also given due consideration to the submissions filed by the parties’ respective counsel as well as the authorities cited.    
  2. The Appellants’ fault the trial court for awarding the sum of Kshs. 997,000/= to the Respondent yet only the sum of Kshs. 140,000/= for mazeras supplied was proved. They submitted that the Respondent the alleged Kshs. 85,000/= debt owed to him that was to be included in the price schedule, was not proved. They further submitted that the Respondent did not prove that he delivered goods worth 557,000/= and 190,000/= which figures were cooked in the invoice to try and prove delivery. According to the Appellants, the invoices relied on by the Respondent were fictitious and fabricated to add up to the sum claimed. Relying on the case of Total (Kenya) Limited Formally Caltex Oil (Kenya) Limited v Janevams Limited [2015] eKLR, the Appellants further contended that production of invoices by the Respondent were not proof that he delivered the goods.  Their case is that the Respondent was only enitled to Kshs. 140,000/= for mazeras supplied.
  3. In response, the Respondent reiterated that the deceased entered into an agreement for the supply of building materials worth 911,200/= which would be paid together with the sum of Kshs. 85,000/= the deceased owed the Respondent. The total amount of Kshs. 997,000/= in respect of which the deceased issued a postdated cheque was to be would paid 30 days from the date of the agreement.
  4. The Respondent submitted that he had supplied building materials worth Kshs. 697,000/= and proved this by means of 2 delivery notes dated 21.8.19 for 50 tons of mazeras and 24.8.19 for other materials. Delivery was received by the one Jumaa Yusuf Wario who signed the delivery notes, a fact acknowledged by the 1st Appellant in his testimony during the trial.  Relying on the case of E.P. Communications Limited v East Africa Courier Services Limited [2019] eKLR, the Respondent argued that a delivery note is sufficient proof of delivery of goods. It was further submitted that the trial court visited the construction site and found that the construction was at foundation level and residual construction materials were on site.
  5. The Respondent further contended that the evidentiary burden to prove that the delivery notes produced by the Respondent were a forgery was on the Appellants, but they did not discharge the same. It is thus the Respondent’s case that he proved on a balance of probabilities that he had supplied building materials worth Kshs. 697,000/= as was held by the trial court. Further, that the profit of Kshs. 250,000/= was expressly provided in the sub-contract. As such, having supplied the building materials, he was entitled to the said profit. The Respondent thus argued that having pleaded and proved the special damages the award of the same by the trial court was warranted.
  6. The Respondent told the trial court that he delivered building materials for Kshs. 557,000/= and Kshs. 190,000/=. He produced invoices for the same and delivery noteswhich were signed by Yusuf Wario, a son of the deceased. Further that in default of payment, he was to cash the cheque given to him by the deceased. He urged the court to help him recover the amount together with the profit of Kshs. 250,000/=.  
  7. In opposition to the Respondent’s case, the 1st Appellant stated that he is one of the directors of the 2nd Appellant. He denied that the Respondent had supplied the building materials as claimed save for 50 tons of gravel for Kshs. 140,000/=, which his brother Juma Yusuf Wario DW2 received. During the cite visit, DW1 informed the court that the building material on site including iron bars were delivered by another supplier and not the Respondent. He also stated that Tanyu Contractors who supplied the materials was paid in cash.
  8. On his part, DW2 stated that he only received ballast from the Respondent and nothing more.
  9. In its judgment, the trial court noted that the amount of Kshs. 140,000/= for ballast was not contested. Further that the delivery notes were signed by DW2, showing that he received the materials. The trial court thus found on a balance of probabilities that the Respondent supplied the defendants building materials worth Kshs. 557,000/=. As regards the claim that materials were supplied by Tanyu Contractors, the trial court found that the receipts produced were dated 19.8.2020, long after the suit was filed. The trial court was unpersuaded by the testimony of the 1st Appellant who be unreliable and full of contradictions.
  10. The trial court thus found that the Respondent had supplied the building materials to the Appellants as agreed and was thus entitled to Kshs. 250,000/=, which was included in the postdated cheque for Kshs. 997,000/= issued to the Respondent by the deceased.  The court proceeded to award the Respondent Kshs. 947,000/= plus costs and interest, and directed the sum of Kshs. 997,000/= held in the 2nd Appellant’s account in Cooperative bank be utilized to satisfy the judgment. 
  11. In the submissions filed, the issue of invoices as proof of sale came into sharp focus.
  12. In the Total (Kenya) Limited case (supra), the Court of Appeal had this to say about the value of an invoice as proof of purchase:

In the case of Great Lakes Transport Co (U) Ltd vs Kenya Revenue Authority (2009) eKLR 720, on the production of proforma invoices, this 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 wanted would be, i.e. quotation given on enquiry as to the price of the 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 none of the two documents would amount to a receipt.”

From the judgment, the respondent produced proforma invoices in support of the claims for the retained petrol station equipment. A proforma invoice is considered a commitment to purchase goods at a specified price. It is not a receipt, and as such cannot attest to the existence of or the acquisition of goods. We consider that a proforma invoice was not satisfactory proof of the respondent’s loss, or the replacement value of the respondent’s equipment, and the learned judge misdirected himself in finding that the proforma invoices were sufficient proof of special damages for the respondent’s equipment supposedly withheld by the appellant.

  1. Similarly, in the case of E.P. Communications Limited v East Africa Courier Services Limited [2019] eKLR, cited by the trial court, Gikonyo, J. observed as follows:

 The other invoices dated 23/20/08 and 20/08/09 were not supported by any delivery note or notes to show receipt of the goods stated therein.  The Appellant may have supplied the goods, but courts of law act on hard evidence not sympathy or speculation. In the absence of a delivery note or evidence of receipt of the goods, it becomes doubtful whether the goods were delivered.

  1. Flowing from the cited authorities, it is evident that an invoice or proforma invoice, in and of itself is not proof of sale. It is not a receipt, and cannot attest to the sale and delivery of goods. A delivery note or some other evidence of receipt of the goods in question must be produced.
  2. The circumstances herein are that the Respondent produced an agreement dated 16.8.19 between him and the deceased. The agreement was for the supply by the Respondent of building materials to the deceased, for the construction of Kipini Administration office in Kipini East Ward in Tana Delta subcounty, Tana River County. The contract sum was Kshs. 997,000/=, which included the sum of Kshs. 250,000/= as profit. It was a term of the agreement that the deceased would hand over an open cheque to the Respondent together with all his shares in the 2nd Appellant as security for payment of the contract sum. There is also on record an undated cheque drawn by the 2nd Appellant in favour of the Respondent for the contract sum. Also on record, is an invoice dated 26.8.19 for 50 tons of mazeras for Kshs. 190,000/= and a corresponding delivery note duly signed by Jumaa Yusuf Wario. There is another invoice dated 26.8.19 for assorted building materials for Kshs. 557,000/= with a corresponding delivery note dated 24.8.19 also signed by Jumaa Yusuf Wario.
  3. I have looked at the documents produced by the Appellants. They include receipt and delivery note dated 19.8.2020 from Tanyu Contractors. There is also a receipt from Raghib Stores dated 19.8.2020.  The extract of the visitors’ book at the construction site, produced by the Appellants is for the period August 2020 to August 2021. This is clearly outside the period in question. There is however a delivery note dated 22.4.19 from Tanyu Contractors for coral blocks, murram and hardcore which is signed by Jumaa Yusuf. Although these were delivered in 2019, I am not persuaded that their delivery alone shakes the respondent’s case. 
  4. Having considered all these factors taken together I do find and hold that the Respondent did on a balance of probabilities establish that he did indeed supply the building materials to the Appellants, in terms of the agreement dated 16.8.19. I therefore find no reason to interfere with the decision of the trial court save to state that the amounts contained in the invoices is Kshs. 190,000/= and 557,000/= which together with the profit of Kshs. 250,000/= make a total of Kshs. 997,000/=. 
  5. The upshot is that this Appeal lacks merit and the same is hereby dismissed with costs to the Respondent.

DATED and DELIVERED in MALINDI this 27th day of September 2024

_____________________

M. THANDE 

JUDGE

    SAID HIRIBAE YUSUF VS SAID HIRIBAE YUSUF VS | Wakili Link