Michael Maina Njoroge T/A Mimky Autospares Limited v Daniel Maithima T/A Deem Auto Garage

4. After listening to the parties, the learned trial adjudicator in his judgment dated 21st December 2023 found that the claim had not been proved and dismissed it. 5. The appellant was dissatisfied with the dismissal of the claim and filed the present appeal raising some seven grounds but argued only two in submissions. 6. The appeal was canvassed by way of written submissions filed by learned counsels for both parties. The submissions are considered in the analysis that follows. 7. The appellant raised the following two issues for determination: a. Whether the learned Magistrate erred in law and in fact in failing to consider the appellant’s evidence on record and the submissions. b. Whether the learned Magistrate erred in law and in fact and undoubtedly exhibited actual bias as against eh appellant and in breach of the the rule of natural justice when he delivered a judgment in favour of the appellant on 8th December 2024 and recalling the same through email six days later and altered the same. 8. Learned counsel for the appellant submits that 9. The plaintiff called one witness Michael Ndunda (PW1), the 10. Plaintiff’s key Accounts Manager. He told the court that the plaintiff commenced business with the defendant in August 2000. The defendant had an order to supply 8 million litres of fuel to Kengen. The plaintiff agreed to supply the said fuel on terms. The price per litre was agreed at Kshs.16.25 inclusive of VAT and relevant documentation was done. Payment was to be made within 30 days. The plaintiff supplied and the defendant paid for all the supply save for only one which had not been fully paid for. 11. PW1 further testified that on 25.8.2000 the plaintiff made 2 deliveries: one under the contract and another to Triton Petroleum. The plaintiff however by mistake invoiced the defendant, for supply made to Triton Petroleum which was smaller. The error was corrected and reversal entries were made. The correct invoice was then served. According to PW1, the plaintiff pumped 1,906,110 litres valued at Kshs.30,974,094.5. The incorrect invoice was for 1,035,911 litres worth16,833,448.12 which was for fuel pumped at the same time to Triton Petroleum The defendant paid for the smaller supply intended for Triton Petroleum although its supply was for the larger fuel stated above. The defendant was informed of the error but did not pay for the balance of fuel supplied. PW1 testified that the plaintiff’s claim related to the difference of Kshs.14,127,635.00 plus interest and costs. He produced PEX 1 comprising the invoices, statement forms and other documents he referred to. He stated that the plaintiff had no contract with Kengen but with the defendat and it could only invoice the defendant. He produced an invoice from the defendant to Kengen for the same amount of fuel delivered by the plaintiff on the same day. 12. The defendant did not call any witness. Counsel agreed to file written submissions which were in place by 23.10.2007. I have considered the oral testimony of PW1, the documentary evidence produced, the written submissions of counsel and the cases relied upon. Having done so, I am now in a position to answer the issues framed by the parties. 13. The defendant admitted that it won a tender for the supply to Kengen of about 8000 metric tons of fuel oil CST 180 at a unit price of Kshs.16.70 per litre inclusive of VAT. The defendant did not also deny the specific averments made by the plaintiff in its plaint. The plaintiff particularized various supplies and how the same were invoiced and the sums claimed for under those invoices. According https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18294/eng@2025-09-10 2

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to the plaintiff only one invoice was disputed by the defendant. The plaintiff further gave details of circumstances leading to that dispute. The defendant did not specifically deny those averments. 14. The plaintiff produced PEX1 comprising invoices including the invoice for the supply in dispute. Of crucial importance is the defendants’ invoice dated 25.8.2000 to Kengen for the supply of fuel oil amounting to 1,904.348. Under that invoice the defendant claimed Kshs.30,802,612.00 from Kengen. The plaintiff also produced its Memo on the subject “Pump Over” indicating that on 25.8.2000, it pumped 1,035,909 to Triton and 1,904,348 to the defendant. The defendant did not suggest that its tender to Kengen was effected through any other supplier other than the plaintiff. 15. Given the evidence adduced by the plaintiff especially the specific documents referred to above, I find and hold that there was indeed a contract between the plaintiff and the defendant for the supply of fuel oil. Issue number one is accordingly answered in the affirmative. 16. The same evidence shows on a balance of probabilities that the plaintiff did deliver to the defendant fuel worth Kshs.30,974,093 in August 2000. The price per unit was agreed. The defendant did not testify. It did not suggest how and why the delivery of 1,906,110 litres would cost less that the other deliveries. The plaintiff in my view satisfactorily explained the error in the invoice for that delivery. There is no doubt that the defendant invoiced Kengen for that delivery. 17. In the premises, the plaintiff has on a balance of probabilities persuaded me that the defendant did not fully pay for the delivery of the said 1,906,110 litres. That finding provides the answers to issue numbers 3, 4 and 5. 18. On the basis of the evidence tendered by the plaintiff’s witness Michael Ndunda and the documents produced by consent, I am satisfied that the plaintiff has proved its case against the defendant on a balance of probabilities and is entitled to judgment for the sum claimed in the plaint. 19. On the issue of interest the plaintiff did not explain what it sought as commercial rates. The same cannot therefore be granted. Interest will therefore be at court rates. 20. Judgment is therefore entered for the plaintiff as prayed with interest thereon at court rates. 21. The plaintiff shall have the costs of this suit. 22. The appeal is allowed with costs to the appellant. Orders accordingly. WRITTEN, DATED, SIGNED AND DELIVERED ON THE VIRTUAL PLATFORM, TEAMS, THIS 10TH DAY OF SEPTEMBER 2025. ANDAYI W. F. JUDGE In the presence of: Wangila for the Appellant. Musavakhwa (Ms) holding brief for Wacuka for the Respondent. Carlos: Court assistant. ANDAYI W. F. JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18294/eng@2025-09-10 3

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