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High CourtPartially Allowed· [2020] KEHC 2364 (KLR)

Elvis Maina Minju & Another v Total (K) Limited

High Court of Kenya
5 October 2020
FTF. Tuiyott
1,906 words in judgment
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AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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In commercial disputes, you must prove every single claim you make, and the court will not accept unproven expenses or adjustments.

What this practically means

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Executive summary

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This was a first-instance contract dispute arising from a Market License Agreement between Elvis Maina Minju and Total (K) Limited over the Ngong Road Total Service Station. Minju terminated the agreement on 24th December 2004 and handed over the station; a joint inventory and valuation were taken. Minju claimed Kshs.2,863,079.90 (pleaded elsewhere as Kshs.2,836,079.90) while ELV Kenya Limited, which obtained a Kshs.1,500,000.00 bank guarantee from Standard Chartered Bank on his behalf, claimed that sum plus loss of profit after Total called in the guarantee and its cheques were stopped. Total counterclaimed Kshs.519,208.55 comprising a reconciled balance, Bon Voyage charge back, and water, electricity and telephone bills, plus damages for breach of contract, though the breach claim was treated as abandoned at hearing. The court framed three issues: the outcome of the inventory, entitlement to further account adjustments, and proof of the utility-bill claims. It held that items omitted from a jointly taken inventory could not be reintroduced; abnormal product losses, deposits and Barclays commissions were unproved; rent and royalty charges were contractually due; terminal dues stood unchallenged; and the fridge-repair debit was answered by the MLA's equipment clause. Only the Kshs.72,299.00 loss-of-revenue debit was found unjustified. Total proved none of its counterclaim items. Judgment was entered for the 1st Plaintiff for Kshs.72,299.00 with interest at court rates from filing and costs; the counterclaim was dismissed with costs. The judgment was delivered virtually pursuant to COVID-19 directions.

Key legal issues

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01

Outcome of the joint inventory taking of 24th December 2004

Holding

The inventory and valuation taken jointly by Minju's supervisor and Fred Patta for Total were binding; items allegedly omitted from a jointly taken inventory could not later be added

Reasoning

The inventory was taken in the presence of Minju's supervisor who signed it with authority. The valuation returned Kshs.428,636.41. Minju's later reconciliation attempted to raise fresh credits, but the court held items missing from a jointly conducted inventory could not be introduced afterwards.

p. 3
02

Whether Minju proved adjustments to the account

Holding

Only the Kshs.72,299.00 loss-of-revenue debit was unproved; all other adjustments failed for lack of proof

Reasoning

Abnormal product losses had no basis and were never raised before termination; rent and royalty charges were contractually due monthly in advance under Article III; terminal dues were unchallenged; deposits and Barclays commissions were not proved to have been taken over by Total.

p. 2
03

Whether Total proved its counterclaim

Holding

The counterclaim failed entirely; none of the five items was proved

Reasoning

Total produced no receipts for water, electricity and telephone bills and made no effort to prove the reconciliation figure or Bon Voyage charge back. The court dismissed the counterclaim with costs.

p. 3
04

Repairs to fridge claim of Kshs.7,650.00

Holding

The MLA placed responsibility for faulty equipment on the Licensor and barred dealer claims absent a false defect report

Reasoning

Article VII sub-article VI required the Licensee to discontinue use of faulty equipment and inform the Licensor, who would rectify the fault. There was no evidence the dealer advised Total of the need for repairs, so the debit was unjustified.

p. 3

Legal principles established

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  • A party asserting a claim bears the burden of proving it, including quantum
  • A claimant must lay a basis for a claim and prove it was raised before termination where it would have arisen then
  • A party claiming special damages must prove quantum with sufficient effort

Court orders

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  1. 1.Judgment entered for the 1st Plaintiff against the Defendant for Kshs.72,299.00 plus interest at Court rates from the date of filing of the suit
  2. 2.Costs of that sum to the Plaintiff
  3. 3.Counterclaim dismissed with costs
Jurisdiction invoked
Original civil jurisdiction of the High Court (contract claim; no specific provision cited in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Elvis Maina Minju & Another v Total (K) Limited", Case Analysis (2020). . Source:

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.