Rogers Lubowa v Smiles Cargo Logistics Ltd & 2 others

and failing to respond to the tampering of the electronic seal, while the 3rd Defendant failed to observe caution and care for the containers allowing it to be stolen. 5. Interlocutory judgment was entered against the Defendants in default of appearance and filing of defence, but the same was set aside in respect to the 2nd Defendant. 6. The 2nd Defendant filed its Statement of Defence dated 05/12/2017 denying the averments by the Plaintiff. Further, the 2nd Defendant averred that there was no agreement between the Plaintiff and the 2nd Defendant, nor was there any agency agreement or relationship between it and the 1st Defendant. 7. After hearing both the Plaintiff and the 2nd Defendant in the suit, and considering the submissions filed by the parties, Judgment was entered in favour of the Plaintiff against the 1st and 3rd Defendant for Kshs. 7,878,787/= and costs of the suit. The suit against the 2nd Defendant was dismissed with costs. 8. Dissatisfied with the said Judgment, the Appellant filed this Appeal vide the Memorandum of Appeal dated 19/04/2023. In summary, the Appellant based the appeal on grounds that the court erred in law and fact for finding that the Appellant had not proved his case against the 2nd Respondent, and that there was no enforceable contract between the Appellant and the 2nd Respondent. 9. It was prayed that the appeal be allowed, the Judgment of the trial court be set aside and to enter judgment against the 2nd Respondent. 10. The appeal was canvassed by way of written submissions. Only the Appellant complied by filing his submissions dated 03/02/2025. Analysis 11. This Court has considered the pleadings, evidence, submissions and authorities relied on. The issues that falls for this Court’s determination are; a. Whether the appeal has merits b. Who bears the costs 12. This being a first Appeal, the Court should with judicious alertness re-evaluate the evidence, and consider arguments by parties and apply the law thereto, and, make its own determination of the issues in controversy. Except however, that it should give allowance to the fact that it neither saw nor heard the witnesses’ testimonies. (See Selle & Another vs. Associated Motor Board Company Ltd. [1968] EA 123) 13. I have perused through the Record of Appeal and the documents therein. It is on record that the transport contract was between the Appellant and the 1st Respondent to transport his cargo from Mombasa Port to Kampala, Uganda. The 1st Respondent then contracted the services of the 3rd Respondent who owned a truck to transport the cargo. 14. The Appellant who testified as PW1, admitted that he did not engage the services of the 2nd Respondent. The 2nd Respondent’s witness, Charles Kyalo who testified as DW1, stated that the 2nd Respondent was contracted by Kenya Revenue Authority to provide electronic seal for the transit goods. 15. The 2nd Defendant, the Appellant submitted that the 2nd Defendant owed a duty of care towards the Appellant for reasons that the tracking system installed was to facilitate the transportation of the goods to the designated location and to avert possible theft by alerting the authorities of any ongoing tampering with the cargo. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19479/eng@2025-12-05 2

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16. The role of the 2nd Defendant was to install electronic tracking device as per the requirements of the East Africa Community Customs Management Regulations. I do agree with the trial court that there was no contract between the Appellant and the 2nd Respondent. The 2nd Respondent was not privy to the transportation contract, but its role was statutory. 17. Privity of contract is a legal doctrine hence an issue of law. A contract cannot confer rights or impose responsibilities to a party other than the parties to the contract. 18. In Dunlop Pneumatic Tyre Co Ltd -versus- Selfridge & Co Ltd [1915] AC 847, Lord Haldane, LC held as follows; “ My Lords, in the law of England certain principles are fundamental. One is that only a person who is a party to a contract can sue on it.” 19. On whether the 2nd Respondent owed the Appellant a duty of care, there being no transportation contract between the parties, I find that the duty of care does not arise. 20. In addition to the above, the 2nd Respondent put the electronic tracking system on the container in compliance with the law. The 2nd Respondent was required to give alerts to the Kenya Revenue Authority and the Transporter, the 3rd Defendant, in the event of any tampering of the gadget. The 2nd Respondent had no obligation to give alerts to the Appellant. From the evidence, the Kenya Revenue Authority was alerted about the detour of the vehicle, and it is courtesy of the tracking system that the vehicle was located. I generally find no negligence on the part of the 2nd Respondent. 21. On costs, the 2nd Respondent having not participated in the appeal save for the appearance in court on 14/05/2025, it is not entitled to costs. Therefore, each party is to bear its own costs. Determination 22. In the upshot, I make the following orders: a. The appeal lacks merits and is hereby dismissed. b. Each party to bear its own costs. It is so ordered. DATED, SIGNED AND DELIVERED AT MOMBASA ON 5TH DAY OF DECEMBER, 2025. ……………………. HON. F. WANGARI JUDGE In the presence of; Mr. Mwangi Advocate h/b for Mr. Otwal Advocate the Appellant N/A by the Respondent Ms. Salwa, Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19479/eng@2025-12-05 3

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