Kalemu Freighters Limited v Toothpick Company Limited

iii. That the learned Adjudicator erred in law and in fact by ignoring the applicable law relating to relevant documentation and procedures applicable in the clearance of cargo, payment of storage charges and the well-established responsibilities of each party in the process therefore arrived at an unreasonable decision. iv. That the learned Adjudicator misdirected herself in law when she transferred the legal obligation of paying for storage charges to a clearing agent without any legal basis, despite the glaring evidence before her that the Appellant had not received any money from the Respondent in respect of the storage charges. v. That in determining that the Appellant shall pay the Respondent the storage/handling charges of Kshs.131,839/= despite the clear documentary evidence before the Court that this amount of Kshs.131,839/= was already included in the storage costs of Kshs.323,043/=, the learned Adjudicator misdirected herself in law and went against basic principles of evidence, fairness, and justice. vi. That in finding that the Respondent had given the Appellant all the necessary documents to clear the cargo despite the absence of the Release Order which is a key document in clearance of cargo, the learned adjudicator ignored the laws of evidence on burden of proof as provided in the Evidence Act. vii. That the learned Adjudicator misdirected herself in law when she ignored the Appellant’s pleadings and evidence on the necessary role and contribution to delays by other third-party entities involved in this cargo clearance process. viii. That the adjudicator misdirected herself in law when she simplistically blamed the delays to inaction by the Appellant without proof since the third parties that contributed to the delay had not been included as parties to the suit by the Respondent despite it being aware of their role as explained by the Appellant. ix. That the learned adjudicator erred in law in disregarding the Appellant’s pleadings on duty to mitigate loss and damages and failing to find the Respondent in breach for failing to pay the initial storage charges as advised on 4th October, 2023 and waiting until the amount had increased to Kshs.323,043/= before it paid. x. That the learned adjudicator erred in law in finding the Respondent had to clear the cargo on her own and awarding travel costs in total ignorance of the law and procedure that once goods are assigned to a Clearing Agent, the owner cannot clear the goods in the Agent’s absence and therefore her travel was an unnecessary expense that could have been mitigated by banking the storage charges money into the requisite bank account to enable the Appellant clear the goods. xi. That by determining that the Appellant shall pay the Respondent for storage costs, travel expenses, interest and costs and entering judgment for Kshs.581,104.00/= the learned Adjudicator subjected the Appellant to injustice. xii. That by determining that the Respondent has satisfactorily established their claim, the learned Adjudicator erred and misdirected herself in law by totally ignoring all the issues of law before her by way of facts at the time of trial. xiii. That by entering judgement against the Appellant, the learned Adjudicator acted on wrong principles and disregarded the applicable law and binding decisions of the High Court and the Court of Appeal. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/16728/eng@2024-12-18 2

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3. The appeal was canvassed through written submissions, and I will reference these submissions in the analysis and determination below. I have reviewed the authorities cited by both parties and the rationale for the decisions. Analysis and Determination 4. 5. This is an appeal from the Small Claims Court under Section 38 of the Small Claims Court Act, which states as follows: (a) ) A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law. (b) An appeal from any decision or order referred to in subsection (1) shall be final. I have reviewed the appeal grounds and submissions from both parties and I find the issue for determination to be: Whether the Respondent proved his Claim at the Lower Court on a Balance of Probabilities. 6. Section 107 and 108 of the Evidence Act Cap 80 stipulates who bears the burden of proof in a case. The two sections provide as follows: “ 107. 108. 7. Burden of Proof I. Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. II. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.” The Court, while rendering itself on the issue of burden of proof in the case of Palace Investment Ltd v. Geoffrey Kariuki Mwenda & Another [2015] eKLR, cited Denning, J. in Miller v. Minister of Pensions [1947] 2 ALL ER 372 where he stated as follows: “ That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say; we think it more probable than not; the burden is discharged, but if the probability are equal it is not. This burden on a balance of preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which a tribunal cannot decide one way or the other which evidence to accept, where both parties…are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.” 8. The parties presented evidence indicating they entered into an oral agreement in which the Appellant was appointed as the clearing agent responsible for clearing a consignment belonging to the Respondent at Jomo Kenyatta International Airport. For this service, a total of KES 95,922/- was paid on 26th September, 2023. 9. It is undisputed that the clearance for the consignment was not completed within the expected timeframe. The Respondent asserts that the Appellant did not carry out the clearance, which led to financial losses as per the claim lodged before the Small Claims Court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/16728/eng@2024-12-18 3

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10. The Appellant strongly denied being responsible for the delay. They stated that the Respondent refused to pay the accrued storage costs, which were not included in the initial invoice for the cargo clearance. 11. The Appellant claims that the accumulated costs resulted from processing delays because the Respondent failed to provide the relevant documents for clearance. A release order was processed from KUEHNE+NAGEL, whose fees were duly catered for in the Invoice issued by the Appellant as “breakbulk.” The evidence shows that the Appellant obtained the same on 3rd October, 2023. The Appellant acknowledged that he did not pay the custom duty taxes that were due and that these taxes had already been provided to him. He further admitted during cross-examination that if the custom duty taxes had been paid on time, no storage costs would have been incurred. 12. The Respondent had to secure the necessary clearances for the cargo, and there is evidence of the payments made towards this. No evidence was presented by the Appellant to support the claim that there were any delays or ineficiencies in the cargo clearance process. The Appellant had the opportunity to provide relevant documentation or testimony to substantiate their assertions on the cause of delays; however, no such evidence was submitted. 13. The Appellant submitted documents via submissions that were neither presented during the trial nor referenced before the Adjudicator. These documents do not inherently clarify their purpose, as the Appellant did not raise any issues regarding non-compliance with the processes or procedures during the trial. There was no evidence of requests for or communication sent to the Respondent indicating any failure on their part to comply with obligations. 14. If delays were indeed experienced during the clearance process due to procedural technicalities beyond its control, it was entirely within the Appellant’s capacity to gather and present that evidence to bolster their case. This lack of supporting information raises questions about the validity of the claims regarding system ineficiencies. This duty is expounded in the authority relied on by the Appellant in Kenya Akiba Microfinance Limited v Ezekiel Chebii & 14 Others [2012]. 15. The Appellant seems to be approaching the appeal stage as if it were a new trial, which is not consistent with the legal process and principle of fair hearing. The procedures at the small claims court are designed to be flexible, making it easier for individuals who choose to represent themselves. Based on the pleadings and evidence presented by the Appellant, it is clear that he did not face any disadvantages. He had the same opportunities as the Respondent. 16. The Appellant has invoked the doctrine of mitigation of loss, emphasizing that the Respondent should take active steps to reduce their losses instead of passively allowing them to increase. The record indicates that the Respondent acted as a principal to expedite the clearance of goods. When the Appellant failed to act, the Respondent intervened by sending their agent to Nairobi to take the necessary actions to ensure that the clearance was completed. Indeed, the clearance was conducted within the specified period. 17. This case stems from the Appellant’s failure to execute its duties as the clearing agent. Consequently, all delays in this case can be attributed solely to the Appellant’s inaction and oversight in fulfilling his responsibilities. The storage charges were such as could have been avoided if the Appellant had fulfilled its obligations. He is therefore responsible for the breach of contract. 18. The Appellant asserts that the Respondent amplified the total costs of handling and storage, which is Ksh 323,043/=. However, the evidence presented indicates that the costs were indeed incurred as per the breakdown. The invoices were duly stamped and bore the imprint ‘posted’, which was duly explained as an acknowledgement. The claim was for special damages, which were specifically pleaded https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/16728/eng@2024-12-18 4

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and proven to the amounts as calculated by the trial Court. The Appellant is liable for these special damages; I uphold the Judgment by the Learned Adjudicator. 19. The upshot of the above is that the appeal is not merited and is dismissed with costs to the Respondent. DATED, DELIVERED AND SIGNED AT NAIROBI THROUGH THE MICROSOFT TEAMS ONLINE PLATFORM ON THIS 18TH DAY OF DECEMBER, 2024. …………………………… C. KENDAGOR JUDGE In the presence of: Court Assistant: Berly Mr. Lusweti Advocate holding brief for Ms. Munene Advocate for the Appellant Ms. Njoki Advocate holding brief for Ms. Mukabana Advocate for Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/16728/eng@2024-12-18 5

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