Jovet (Kenya) Limited v Bavaria N.V
The bottom line
#Kenya's Court of Appeal confirmed you cannot claim breach of a contract that never existed with the other party, even after years of doing business.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Judge erred in failing to treat the petition as a constitutional petition and in failing to determine the constitutional claims pleaded
- 2.Whether the Judge erred in identifying and determining only one issue (existence of a contractual relationship) instead of all issues raised
- 3.Whether there was a contractual relationship between the appellant and the respondent capable of being breached
Key legal issues
#Character of the dispute: constitutional petition or commercial dispute
The dispute was commercial; the consent transfer to the Commercial and Admiralty Division and the appellant's prior demand letter and withdrawn commercial suit showed it was never a constitutional dispute.
The parties consented on 16th November 2017 to transfer the petition to the Commercial and Admiralty Division. The appellant's 2015 demand letter sought compensation for goodwill, and its withdrawn Chief Magistrate's suit sought commercial injunctions. Together these showed the appellant itself treated the matter as commercial, so the Judge's failure to decide constitutional claims was not an error.
Existence of a contract between the appellant and the respondent
No contract existed between the appellant and the respondent; the distributorship agreements were between the respondent and Jovet (Tanzania) Limited, and the appellant had only a private arrangement with its majority shareholder.
The 2011 Distributorship Agreement and the 2016 Exclusive Distribution Agreement were both made between the respondent and Jovet (Tanzania) Limited. The record showed the appellant had a distributorship relationship only with Jovet (Tanzania) Limited, its major shareholder, so there was no contract with the respondent capable of breach.
Whether determining one issue only vitiated the judgment
It did not; a single issue whose determination disposes of the case may properly be identified and decided.
The respondent submitted, and the Court accepted, that there was nothing wrong with a Judge identifying one issue and determining it if its determination could dispose of the whole case. The existence of a contract was the threshold issue; finding none, the constitutional and damages claims fell away.
Legal principles established
#- A first appellate court must reappraise the evidence and reach its own conclusions, making allowance for not having seen or heard the witnesses.
- A party who consents to transfer of a petition from the Constitutional and Human Rights Division to the Commercial Division thereby characterises the dispute as commercial, not constitutional.
- A court may identify and determine a single dispositive issue; failure to determine every pleaded issue does not vitiate the judgment if the one issue disposes of the case.
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Petition No. 491 of 2017
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Constitution and applicable appellate statute (not expressly cited in the judgment)
Relief refused
#Setting aside the High Court judgment and substituting judgment in favour of the appellant as prayed in the petition
No contract existed between the appellant and the respondent; the distributorship agreement was with Jovet (Tanzania) Limited
Remittal of the petition for fresh hearing before a different Judge (alternative prayer)
The appeal lacked merit; the High Court findings were correct
Costs
Appeal dismissed with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Our mandate as a first appellate court is to reappraise the evidence and reach our own conclusions in the case as was laid out in the celebrated case of Selle and Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123
That alone was an acknowledgment by the appellant that the dispute it had lodged against the respondent was a commercial dispute, and not a dispute on any alleged breach of constitutional rights.
So the dispute was always a commercial one and there is no merit in the complaint by the appellant that the Judge erred in not treating the petition as one raising constitutional questions and in identifying the issue in dispute and to making a determination.
We find no merit in this appeal which we dismiss with costs to the respondent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jovet (Kenya) Limited v Bavaria N.V", Case Analysis (2024). Civil Appeal 158 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1900/eng@2024-10-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.