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JudgmentTECHNO PLAST LIMITED VS TYL LIMITED6 min read

TECHNO PLAST LIMITED VS TYL LIMITED

High Court at Milimani High Court · · J.W.W. Mongare


  1. Vide a plaint dated 1/11/2013, the Plaintiff instituted this suit against the Defendant seeking for judgment in the following prayers;
        1. The sum of Kshs.7,802,793
        2. Costs of this suit
        3. Interest at contractual rates till payment in full
        4. Any other and/or further relief that this Hon. Court deems fit to grant
  2. The Plaintiff ’s case was that it supplied various items to the Defendant from time to time at the Defendant’s request.  That on diverse dates between 2011 and 2013, the Defendant procured various goods from the Plaintiff which goods were delivered and acknowledged by the Defendant's contractor and/or agent Messers PINDORIA HOLDINGS LIMITED and in the process the Defendant incurred a debt of Kshs.7,802,793.
  3. The Plaintiff asserted that the Defendant refused and/or neglected to pay for the goods supplied by it and that the outstanding amount owed by the Defendant as of 25/3/2013 was Kshs.7,802,793/- which amount continues to accrue interest. The Plaintiff ’s claim against the Defendant is for the aforementioned sum together with interest at contractual rates.
  4. At the hearing of the main suit, the Plaintiff called one witness to testify in support of its case. PW1 was JOHN OUMA KWOBA who adopted his witness statement dated 1/11/2013 and produced a list of documents of even date as the plaintiff’s evidence.
  5. PW1 stated that he is an accountant employed at the Plaintiff company whose functions were to appraise various customers’ credit, handling sales of goods on behalf of the Plaintiff and keeping customer’s records.
  6. PW1 testified that on various dates between the years 2011 and 2013, the Defendant requested the Plaintiff to supply them with goods on credit and payment would be made later. That the Plaintiff supplied the goods but the payments were not settled.
  7. PW1 testified that the Plaintiff instructed its advocates to demand the outstanding amount overdue of Kshs.7,802,793 which they did vide a demand letter dated 14/10/2013 and a reminder dated 23/10/2013. However, there was no response to the demand which necessitated filing the present suit.
  8. On cross examination, PW1 testified that he was not aware whether there was a written agreement and that he had produced invoices and delivery notes. That PINDORA HOLDINGS were the contractors on site but the client was the Defendant; that the goods were therefore received by PINDORA HOLDINGS on behalf of the Defendant and payment was received from the Defendant although there was no proof of receipt of the payments.
  9. Further that he had not produced any document showing the relationship between PINDORA HOLDINGS and the Defendant or between the Plaintiff and Defendant.
  10. On re-examination PW1 testified that the Plaintiff was informed that the goods would be received on site by PINDORA CONTRACTOR’S LIMITED and the Defendant never objected to the receipt of the goods by the company. Further that not all of the invoices were produced in court which could have been an error on the part of the advocates for not availing all the invoices.
  11. The Plaintiff filed a reply to the defence dated 15/9/2017 where it was asserted that the defense constituted mere denials, did not raise any triable issues and should be struck out with costs.

DEFENDANT’S CASE:

  1. The Defendant filed a statement of defence dated 2/12/2013 whereby it denied that the Plaintiff supplied it with various items as alleged in the plaint.
  2. The Defendant asserted that there has never been any privity of contract between it and the Plaintiff and that it did not at any time request nor receive any goods from the Plaintiff. That the Plaintiff ’s claim for the alleged goods is against PINDORIA HOLDINGS LIMITED and the Defendant company is therefore not liable for any debt incurred by the said company.
  3. Without prejudice to the foregoing, the Defendant contended that it is a stranger to the interest at contractual rates and in extension the contract alluded to.
  4. The Defendant called one witness, BONIFACE NGINYO MWAURA, its head of operations. DW1 adopted his witness statement dated 25/9/2018. He testified that the Plaintiff did not supply any goods as alleged and that the Defendant has never been a customer of the Plaintiff as alleged in the plaint.
  5. Further that there has never been privity of contract between the Defendant and the Plaintiff and therefore the Plaintiff is non-suited against it and that the goods were delivered to PINDORIA HOLDINGS LIMITED and the Defendant is therefore not liable for any debt incurred by the said company.
  6. On cross examination, DW1 testified that he does not receive goods on behalf of the company and that it was not within his power to confirm payments.

Analysis and determination.

  1. Both parties filed written submissions. The Plaintiff filed written submissions dated 3/5/2021 while the Defendant filed its submissions dated 25/5/2021.
  2. The court has carefully considered the pleadings and submissions filed in this matter by the parties. The issue for determination is whether the Plaintiff is entitled to the prayers sought in the plaint.
  3. The Plaintiff ’s case is anchored on the allegation that the Defendant requested it for the supply of various goods between the years 2011 to 2013 and that payment has never been remitted for the goods by the Defendant.
  4. The Defendant on its part is adamant that no such transaction took place between it and the Plaintiff and that it is not indebted to the Plaintiff in any way.
  5. To prove that the Defendant requested for goods from the Plaintiff, the Plaintiff relied on PW1’s testimony that the Defendant approached the Plaintiff as a walk-in client and requested to be supplied with goods on credit. The Plaintiff submitted that the goods were delivered to the project site and PINDORA HOLDINGS LTD received the goods by stamping the delivery notes.
  6. The Plaintiff ’s list and bundle of documents dated 1/11/2013 contains a statement of account, invoices and delivery notes.
  7. The invoices in the bundle were issued between the dates 8/3/2011 and 28/2/2013 and addressed to the Defendant however they were stamped as received by Pindora Holdings Limited and not the Defendant. 
  8. The delivery notes in the bundle have various dates from 2/10/2011 to 24/4/2012. The notes include a list of goods delivered and are all stamped as received by PINDORA HOLDINGS LIMITED.
  9. Further the Plaintiff produced statements of account prepared by itself to make a case of indebtedness against the Defendant.   
  10. On its part, the defendant did not provide any evidence to rebuttal the assertions that these were goods supplied at its behest and on its site to its contractor. It merely denied the existence of any supply contract with the Plaintiff.
  11. I note that section Section 37 of the Evidence Act which states as follows:

“ Entries in books of account regularly kept in the course of business are admissible whenever they refer to a matter into which the court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability.” Requires that documentary evidence to be collaborated. I am satisfied that the Plaintiff has produced adequate material to demonstrate that indeed it supplied goods to the plaintiff at the Plaintiff’s behest and despite the fact the goods were received by a different entity, the same were invoiced to the Defendant and not to PINDORIA HOLDINGS LIMITED.  This evidence was corroborated by the testimony of PW1 who confirmed indeed that the goods were delivered as per the invoices and acknowledged by an agent of the defendant. There was not produced by the defence evidence to controvert this testimony. I am therefore satisfied that the plaintiff has on a balance of probabilities established its claim as prayed in the plaint and I accordingly enter judgment in the following terms;

          1. Judgment for the sum of Kshs. Kshs.7,802,793/- plus interest at court rates from the date of filing suit till payment in full.
          2. Costs of this suit.

DATED, DELIVERED AND SIGNED ON THIS 17TH DAY OF JUNE 2024

………………………………..

J W W MONGARE

JUDGE

In The Presence Of

        1. N/A for the Plaintiff
        2. Mr. Chege holding brief for Ms. Maina for the Defendant
        3. Amos- Court Assistant
    TECHNO PLAST LIMITED VS TYL LIMITED TECHNO PLAST LIMITED VS TYL LIMITED