Plaintiff v Flamingo Bottlers (1st Defendant) & Nairobi Bottlers (2nd Defendant)
The bottom line
#Unilateral changes to a contract can lead to damages, and the clock for filing a lawsuit starts when the problem occurs, not when the contract was signed.
What this practically means
#Executive summary
#Key legal issues
#Limitation
Suit not time barred; time runs from accrual of the cause of action (the alleged frustration around October 2002), not the 1998 agreement date.
The agreement was signed on 24 April 1998 but the plaintiff was still distributing products as at 9 October 2002, as confirmed by the warning letter of that date. The alleged frustration occurred years after smooth operation of the contract, so counting limitation from the agreement date would be incorrect; the suit filed on 1 October 2004 was in time.
Joinder of the 2nd defendant
The 2nd defendant was wrongly sued; the suit against it was dismissed.
Although the defendants adduced no evidence, the burden remained on the plaintiff to prove his case on a balance of probabilities. The plaintiff produced no evidence that the 2nd defendant was the parent company of the 1st defendant or that any takeover occurred; the agreement was between the plaintiff and the 1st defendant only.
Frustration/breach of contract and damages
The unilateral change from distributorship to direct allocation of outlets substantially affected the plaintiff's business; the initial contract remained in force and the plaintiff was entitled to general damages of Kshs 2,000,000.
The plaintiff complied with the upgrade requirements to key distributor, including a warehouse, stock, bank guarantee and manpower, and continued operating beyond the 6-month temporary appointment, showing the initial contract still governed. The switch to selling direct to allocated outlets rendered his capital investment unusable; the changes came from one side and fairness required accommodation of the plaintiff's legitimate expectation of returns.
Legal principles established
#- Time for filing suit runs from when the cause of action arises, not from the date of the agreement
- The burden of proving a case on a balance of probabilities remains on the plaintiff even where the defendant adduces no evidence
- Where a party makes substantial unilateral changes to the mode of operation after the other party has invested in compliance, there should be fair play to avoid frustration
Court orders
#- 1.Judgment entered for the plaintiff against the 1st defendant for Kshs 2,000,000
- 2.Suit against the 2nd defendant dismissed
- 3.Interest on the judgment sum to be paid at court rates from the date of filing suit
- 4.Costs of the 2nd defendant to be paid by the plaintiff
- 5.Plaintiff's costs to be paid by the 1st defendant
- Jurisdiction invoked
- Original civil jurisdiction of the High Court in a contract claim (Civil Procedure Act, Order 1 Rule 7 and Order 9 Rule 9 cited on joinder)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Plaintiff v Flamingo Bottlers (1st Defendant) & Nairobi Bottlers (2nd Defendant)", Case Analysis (2019). Civil Suit No 279 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/kehc/2019/5961/eng@2019-06-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.