H Daya International Company Limited v Brand Imports (africa) Limited

6. He prepared a witness statement dated 19/2/2020 and stated that the plaintiff was established on 23/3/1973 and registered in Hong Kong, where its principal place of business was located, and that it operated as a fully integrated trading company with a global network, including operations in Kenya. He stated that the plaintiff dealt in apparel, footwear, and related merchandise. 7. He further stated that between 13/2/2015 and 30/5/2015, the plaintiff imported, sold, and supplied goods to the defendant at its request, as set out in the commercial invoices, for an aggregate sum of USD 743,412.44. According to the witness, the defendant did not raise any complaint regarding the quality or quantity of the goods delivered and, by a written payment plan dated 28/2/2019 executed by both parties, committed to settle the outstanding amount by monthly installments. 8. The witness stated that despite this commitment, the defendant failed to adhere to the payment plan and did not make any payment towards the debt. He explained that the plaintiff therefore claimed USD 743,412.44 together with interest at court rates from 30/9/2015 until payment in full. He also stated that a demand letter dated 31/10/2019 was issued to the defendant, to which the defendant responded on 19/11/2019 seeking indulgence to clear the debt. Defendant’s case 9. The defendant filed a statement of defence dated 16/7/2020, whereby it partly admitted the contents of paragraph 3 of the plaint but disputed the purchase price claimed, contending that the amount payable was not USD 743,412.44 as alleged, but USD 484,943.75. 10. It stated that the goods supplied and other related costs totaled USD 484,943.75 and not the sum pleaded by the plaintiff. The defendant denied the contents of paragraph 4 of the plaint and put the plaintiff to strict proof. 11. The defendant stated that under the agreement dated 28/2/2019, it was to initiate payment at the end of May 2019, but its operations were adversely affected by the 2017–2018 general elections, which hindered payment. It further averred that its business operations had not improved and that it was therefore unable to pay the amount claimed in a lump sum, though it acknowledged an outstanding balance of USD 484,943.75. 12. The defendant contended that the plaintiff’s prayers were exorbitant, oppressive and unconscionable. It stated that it had on several occasions expressed willingness to settle the outstanding sum of USD 484,943.75 by monthly installments due to business hardships, but that the plaintiff had declined to accept the proposal. The defendant denied the remaining allegations in the plaint and put the plaintiff to strict proof thereof. 13. The defence called one witness, Mr.Kirit Sutaria, whose witness statement is dated 16/7/2020. 14. He testified that he was the head of finance of the defendant and was conversant with the facts of the case. He stated that between February 2015 and May 2015, the defendant purchased various goods from the plaintiff. 15. He stated that the value of the goods supplied, together with other costs payable, amounted to USD 484,934.75 and not USD 743,412.44 as alleged by the plaintiff. He further stated that the parties had on several occasions engaged in negotiations on settlement modalities due to the defendant’s business not performing well. 16. The witness stated that at a meeting held on 28/2/2019, the parties agreed on a payment plan on the condition that the defendant would commence payment by the end of May 2019 if its business situation improved. He stated that the defendant’s business situation never improved. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1020/eng@2026-01-29 2

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17. He further stated that the defendant received a demand letter dated 31/10/2019 from the plaintiff’s advocates on 14/11/2019 and responded on 19/11/2019 seeking more time to commence payment. The witness maintained that the defendant had always been willing to pay USD 484,934.75 and not the higher sum demanded. 18. The witness stated that the claim for USD 743,412.44 was exorbitant, harsh, oppressive and unconscionable, and that the plaintiff was harassing and intimidating the defendant without providing a true and accurate statement of account. He stated that there was need for reconciliation of the outstanding account and a determination by the court on the sums properly chargeable, and urged the court to intervene in the interest of justice. Analysis and determination 19. The plaintiff and defendant filed written submissions dated 1/8/2024 and 2/9/2024, respectively. I have considered the same together with the pleadings and evidence produced by the parties. 20. Having analyzed the parties’ respective submissions, I find that the sole issue for determination is whether the defendant is indebted to the plaintiff to the tune of USD 743,412.44. 21. The plaintiff’s case is that it imported, supplied, and sold various goods and merchandise to the defendant between 13/2/2015 and 30/5/2015 at an agreed purchase price of USD 743,412.44. 22. The plaintiff stated that the parties entered into a payment plan agreement dated 28/2/2019, which was executed by both parties. However, the defendant failed to honour the payment plan and had not paid any part of the outstanding amount. 23. The defendant, on its part, disputed the purchase price claimed, contending that the amount payable was not USD 743,412.44 as alleged, but USD 484,943.75. Further, the defendant pleaded that under the agreement dated 28/2/2019, it was to initiate payment at the end of May 2019, but its operations were adversely affected by the 2017–2018 general elections, which hindered payment. It further averred that its business operations had not improved and that it was therefore unable to pay the amount claimed in a lump sum, though it acknowledged an outstanding balance of USD 484,943.75. 24. From the record, it is not in dispute that the plaintiff supplied goods to the defendant, which were not paid for. What is in contention is the amount owed to the defendant by the plaintiff for the delivery of such goods. 25. Section 107 of the Evidence Act states that the burden of proof in a suit lies on the person who would fail if no evidence at all were given on either side. 26. In this case, the plaintiff has the burden of proving that the defendant is indebted to it to the tune of USD 743,412.44. To this end, it has provided commercial invoices, delivery notes, a statement of account, and a payment plan executed by the parties indicating that the total amount outstanding by the defendant was the sum of USD 743,412.44. The documents above were produced in the trial bundle dated 27/10/2023. 27. The Court is particularly drawn to pages 261 and 262 of the trial bundle, whereby a payment plan was agreed upon by the parties. The defendant agreed to pay the sum of USD 743,412.44 in installments from 31/5/2019 to 28/2/2022. This payment plan bears the signature of both of the parties. 28. Further, it is noted that the plaintiff’s counsel sent a demand letter to the defendant demanding payment of USD 743,412.44. In response, the defendant wrote a letter requesting more time to clear the amount, stating that the business environment had not improved in Kenya. It is therefore plain https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1020/eng@2026-01-29 3

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that the defendant did not dispute the amount claimed by the Plaintiff, but only sought more time to pay the same. The letters are produced on pages 237 to 239 of the trial bundle 29. From the foregoing analysis and the evidence adduced, the Court is convinced that the plaintiff has proved its case on a balance of probability. It is clear to the court that the defendant agreed to be indebted to the plaintiff to the tune of USD 743,412.44 as evidenced by the payment plan that it voluntarily endorsed. 30. In light of this, I am of the view that the defendant’s allegation that it owed the plaintiff the sum of USD 484,943.75 carries no weight. The defendant did not provide evidence of how it paid any amount to the plaintiff to reduce the amounts claimed to USD 484,943.75. The plaintiff’s evidence, therefore, remained uncontroverted. 31. In Sagrick Kenya Limited v Kibirigwa Farmers Cooperative Society (Civil Suit 1119 of 2001) [2024] KEHC 2953, the Court held as follows; “ It is the finding of this Court that the documents relied on by the plaintiff are sufficient evidence that the defendant ordered for chemicals from the plaintiff and the same were delivered. It is also evident that the defendant has not paid any consideration for the goods delivered twenty-two (22) years ago. The defendant's defence was that the goods were never delivered to it at its request and that any receipt of the goods was done without its authority. The said allegations were however not supported by any evidence. The plaintiff's sworn evidence therefore remains unchallenged. In the case of Isaac Mugweru Kiraba t/a Isamu Refri- Electricals v Net Plan East Africa Limited [2018] eKLR, it was held thus: “In my view, and in the absence of any evidence of rejection of the goods either at the time of delivery or even within a reasonable period after delivery, property in the supplied and delivered goods passed to the Defendant once the goods were accepted and the delivery notes stamped and signed. The Defendant then had to pay for the delivered goods at the agreed prices being the local purchase order prices.” 32. In this case, the evidence is clear that goods were supplied to the defendant, who, in breach of the payment schedule agreement, failed to make any payment to the plaintiff. 33. Accordingly, the Court finds and holds that the plaintiff is therefore entitled to the amount of USD 743,412.44 as claimed with interest at court rates applying from 30/9/2015 when the outstanding amount fell due. 34. It is so Ordered SIGNED, DATED, AND DELIVERED IN VIRTUAL COURT THIS 29TH JANUARY 2026 ADO MOSES JUDGE In the presence of: C/A – Moses Kimani……………………..for Plaintiff https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1020/eng@2026-01-29 4

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Ms. Njagi…………………..for Defendant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1020/eng@2026-01-29 5

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