Dr Peter Umara T/A Jamu Medical Services & 1 other v Philips Healthcare Technologies Limited

bad in law, an abuse of the court process and did not disclose the cause of action and would at the appropriate time seek to have it struck out with costs. 5. The Defendants/Appellants denied being indebted to the Plaintiff/Respondent to the tune of Kshs. 4,485,526.90 and put the Plaintiff to strict proof thereof, and that the alleged sum of Kshs. 4,485,526.90 was an afterthought from the Plaintiff to unfairly enrich themselves leaning on the contract that had been performed. The Defendants/Appellants prayed for dismissal of the suit with costs. 6. This suit was heard in the trial court and judgment delivered on 24/11/2023 where the court found in favour of the Plaintiff, directing the Defendants to pay Kshs. 4,485,526.90, with costs of the suit plus interest at court rates from the date of filing suit. 7. Being dissatisfied, the Appellant appealed the judgment through the Memorandum of Appeal dated 20/12/2023 on grounds that the learned magistrate erred in law and in fact by finding that; i. The Respondent was an unpaid seller within the meaning of Section 39 (1) of the Sale of Goods Act. ii. In failing to recognize that the Respondent was bound by his pleadings which were express that the purchase price for the entire goods supplied to the Appellants was USD 129,500. iii. By awarding the Respondent Kshs. 4,485,526.90 without considering and verifying how much was paid by the Appellants and their bank. iv. By finding that the Respondent was unpaid to the tune of Kshs. 4,485,526.90 without taking into account that the bank paid 80% of the purchase price while the Appellants paid 20%. v. By failing to recognize that the purchase price for all the goods supplied by the Respondent vide a local purchase order dated 09/08/2011 and goods delivered on 09/12/2011 was USD 129,500 as pleaded by the Respondent, and; vi. By awarding the Respondent Kshs. 4,485,526.90 despite overwhelming evidence on record that the Appellants paid the entire purchase price. vii. That the learned trial magistrate proceeded on wrong principles of law by awarding the Respondent a sum of Kshs. 419,000 as part of Kshs. 4,485,526.90 for goods supplied on 22/07/2008 through invoice number CSD001692 yet the case involved goods ordered vide a local purchase order dated 09/08/2011 and delivered on 09/12/2011 according to the Respondent’s pleadings. viii. That the learned magistrate erred in fact and law in awarding the Respondent Kshs. 3,200,000 as part of the net award of Kshs. 4,485,526.90 yet the said goods were supplied on 09/12/2011 and were part and parcel of the purchase pleaded by the Respondent in paragraph 5 of the Plaint and duly paid by the Appellants. ix. That the learned trial magistrate disregarded the overwhelming evidence tendered by the Appellants to prove that they paid the entire purchase price for all the goods ordered under a local purchase order dated 09/08/2011. x. That the learned magistrate erred in fact and in law by rewriting a contract for the parties and awarding the Respondent a sum of Kshs. 4,485,526.90, and by completely disregarding the Appellant’s submissions on both law and fact. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19546/eng@2025-12-18 2

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8. The Appellant prayed that the appeal be allowed, that judgment delivered on 24/11/2023 against the Appellants be set aside, and that costs of this appeal be awarded to the Appellants. 9. It was directed that the appeal be disposed of by way of written submissions. Both parties complied by filing their rival submissions. The Appellants in their submissions dated 10/05/2025 on whether the Appellants paid the purchase price for the equipment being USD 129,500, that they admitted that the purchase price for all the equipment was paid in two-fold where the Appellants were to pay 20% of the purchase price, which they paid, and the Appellant’s bank being Commercial Bank of Africa was to pay 80% of the purchase price which they also paid in full, and was acknowledged by the Respondent. 10. The Appellants submitted that it was their testimony that on 09/12/2011, they paid the Respondent Kshs. 800,000 through cheque number 000610 and Kshs. 400,000 through cheque number 000611 which was 10% deposit. That the bank paid the Respondent USD 103,450 which translated to 80% of the purchase price, and together with the deposit that the Appellants had paid, the Respondent as at 2012 had paid 90% of the purchase price. 11. The Appellants stated that the Respondent acknowledged receipt of 117,518 USD vide a letter dated 15/10/2012 which included the amount the bank had paid and the 10% deposit which the Appellants had paid on 09/12/2011. 12. The Respondent’s witness acknowledged on cross examination that the amount was received by the Respondent which is an indication that the entire purchase price was paid to the Respondent, hence the Respondent’s request to be assisted to recover a sum of Kshs. 4,485,526.90 is tantamount to requesting the court to rewrite the contract between the Appellant and the Respondent. 13. The Appellants cited the case of South Nyanza Sugar Company Ltd v Leonard O. Arera, Civil Appeal No. 97 of 2018 where it was held that it is not the business of the court to rewrite contracts between parties. 14. The Respondent in its submissions dated 04/06/2025, submitted that the Appellant claimed to have paid for the goods received but they did not produce any evidence of payment. The Appellant was said to be supplied with goods outside the initial LPO. 15. Further, owing to the relationship between the parties, the Appellant would be supplied with goods without a LPO which was under special arrangements. the Respondent being an unpaid seller within the meaning of section 39 (1) (a) of the Sale of Goods Act hence the provisions of section 49 of the said Act must be invoked. The Respondent prayed that the appeal be dismissed with costs. Analysis 16. The role of the first appellate court to reexamine and to reevaluate evidence to come up with its own findings was set out in Selle v Associated Motor Boat Co. (1968) E.A 123 as follows: “ … Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect …” 17. I have considered the Record of Appeal and submissions by the parties. The issues for determination are: a. Whether the Appellants paid for the supplied equipment b. Whether there was supply of extra equipment https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19546/eng@2025-12-18 3

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c. What are the orders on costs 18. In paragraph 5 of the Amended Plaint, the Plaintiff/ Respondent averred that on diverse dates in August 2011, goods worth USD 129,500.00 amongst other imaging supplies and equipment orders by the Appellant, had been supplied to the Defendant/ Appellant. In paragraph 7, a total of Kshs. 4,485,526.90 was stated to be due and owing to the Respondent by the Appellant. The Appellant denied that they were indebted to the Respondent as claimed. 19. It was admitted by the Respondent, through its witness one Stephen Ngaruiya Mburu, the C.E.O of the Plaintiff Company admitted that USD 129,500.00 had been paid in full. The witness stated that there were other goods supplied to the Appellant where no formal order was made or LPO issued. The goods included the VITA CR System. The witness clarified that the goods were ordered through LPOs, emails or verbally. The money for the unpaid goods was Kshs. 4,485,526.90. 20. For the Appellant, Dr. Peter Umara gave evidence stating that all the goods supplied and been ordered through LPO. He stated that the Vita Printer and Kodak processor worth Ksh. 3.200,000 and Ksh. 650,000.00 which had been given as gifts. He however said it was not unusual to give invoices for gifts. 21. I have perused through the documents produced as exhibits. The machine worth Kshs. 3,200,000.00 was delivered on 09/12/2011 and payment was due on 08/01/2012. The first demand letter written to the Appellant is dated 15/10.2012 and 27/11/2012. The former was written by the Respondent while the later was drawn by the Respondent’s counsel J,.K.M Gichachi., both demanding for payment of USD 11,982.00. there is no mention if the Kshs. 3.2 m allegedly owed. 22. The Respondent first demanded the payment for Vita CR and Kodak processor through the demand letter dated 06/11/2013. In response to the letter, the Appellant through the letter dated 10/12/2013, the A appellant stated that the said items were given to the Defendant as a gift. 23. It cannot be ignored that the above mentioned equipment were delivered on 09/12/2011 but an invoice prepared on 01/09/2017, almost 6 years after date of delivery. The Respondent onus was to proof that there were other orders made by the Appellant after 09/12/2011 including the disputed items. 24. In Section 107 of the Evidence Act it states as follows; “S 107 (1) 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. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.” 25. The Appellant having stated that the item were gifts in their response to the demand letter, the Respondent ought to have discharged the burden of proof that the said equipment was not gifts as alleged. The said burden was not discharged. I find the court erred in finding that the Appellant must pay for the goods received as it was deemed that there was acceptance of the goods. 26. On costs, the Appellant having been the successful party, costs are hereby awarded. Determination 27. The upshot of the foregoing is as follows: a. That the appeal is successful and is allowed on the following terms; https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19546/eng@2025-12-18 4

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b. i. The Judgment of the lower court is set aside and substituted with Judgment dismissing the Plaintiff’s suit. ii. Costs of the lower court suit awarded to the Defendant. Each party to bear its own costs. DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 18TH DAY OF DECEMBER, 2025. ………………….. HON. F. WANGARI JUDGE In the presence of:Ms. Wangechi Advocate h/b Mr. Mwang’oma Advocate for the Appellant Ms. Nyaga Advocate for the Respondent. Ms. Salwa, Court Assistant F. Wangari, J. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19546/eng@2025-12-18 5

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