REPUBLIC OF KENYA IN THE SMALL CLAIMS COURT AT KITALE COMMERCIAL CASE NO. E003 OF 2023 EAST AFRICAN BUSINESS COMPANY LIMITED……....…. ……………………..CLAIMANT VERSUS MESHACK KIPTOO T/A MOSHKIP ENTERPRISES………...………………… RESPONDENT JUDGMENT This claim arises from a contract between the Claimant and the Respondent for the supply of various agricultural farm inputs. The said agricultural inputs were supplied by the Claimant to the Respondent between sometime in the year 2021 and 07th December 2022. The Claimant claimed that the goods supplied to the Respondent were valued at Kshs. 140,541.74/=. The Respondent acknowledged having received agrovet goods from the Respondent. He added that the goods supplied to him included 400 pieces of Mongare weighing five (5) grams each. The Respondent sold 130 pieces of the said Mongare and returned the remaining 270 pieces that had expired to the Claimant vide Delivery Note No. 124. The returned goods were valued at Kshs. 13,441.60/=. The Claimant on the other hand maintained that the 270 pieces of Mongare were never returned to them by the Respondent. The Claimant also added that as per their invoices filed herein, an interest of 3% per month was to be charged on overdue invoices. Kitale SCC CC. No. E003 of 2023 Page 1 of 6 Judgment
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Regarding the levying of interest on overdue invoices, the Respondent disputed having consented to the levying of 2% interest per month on any overdue invoice. It was also the Respondent’s case that he had already paid the Claimant a sum of Kshs. 79,000/= through cheques and Mpesa. To the best of the Respondent’s knowledge, he owed the Claimant a sum of Kshs. 93,074.80/= as per the Statement of Account for the period between 01 st January 2023 to 06th September 2023 supplied to him by the Claimant’s employee one Martin Kidonyi. ISSUES FOR DETERMINATION Parties' pleadings, documents, submissions, and the evidence led during the hearing of this matter have been duly considered. The issues that commend to this court for determination are:a) Whether 270 pieces of Mongare were returned to the Claimant b) What is the amount due to the Claimant c) Whether interest of 3% per month ought to be levied on the amount due to the Claimant Whether 270 pieces of Mongare were returned to the Claimant The Respondent stated that he returned 270 pieces of expired Mongare valued at Kshs. 13,441.60/= through the Claimant’s employee one Martin Kidonyi. He added that the said Kidonyi acknowledged receipt of the expired goods by signing a delivery note. The Respondent also stated that he declined to sign the delivery note that was used by the Claimant to supply him 400 pieces of Mongare since the said Mongare had a short expiry period. The WhatsApp messages conversation between the Respondent and the said Martin Kidonyi (Rexh.11) produced by the Respondent show that the expired goods returned by the Respondent were rejected by the Claimant. The Kitale SCC CC. No. E003 of 2023 Page 2 of 6 Judgment
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reason for the rejection of the returned expired goods was that the Respondent delayed returning the said goods. The WhatsApp messages extracts also show that Kidonyi sought to return the rejected goods to the Respondent. A perusal of the record shows that the Respondent did not present before this court the delivery note allegedly signed by Kidonyi acknowledging receipt of the expired goods. The Respondent also did not present before this court the delivery note he allegedly declined to sign when the 400 pieces of Mongare were supplied to him. This court cannot fault the Claimant for rejecting those returned goods on account of delayed return since allowing goods to be returned to a supplier at the whims of a merchant is likely to lead to absurd outcomes in the commercial world. For the reasons above, this court finds that the 270 expired pieces of Mongare that were returned by the Respondent to the Claimant were rejected by the Claimant on account of delayed return and for good reason. What is the amount due to the Claimant The Claimant conceded during the hearing of this matter that the Respondent owed them Kshs. 69,074.80/= exclusive of the interest. The Respondent on the other hand stated that as of 06 th September 2023, he owed the Claimant Kshs. 93,074.80/= (see Rexh.12). He added that he has since paid the Claimant a sum of Kshs. 79,000/= through cheques and Mpesa. This court has had the benefit of perusing the copies of cheques produced by the Respondent herein. The court notes that cheque no. 000008 is dated 15 th March 2024 and cheque no. 000009 is dated 18 th March 2024. Both cheques are valued at Kshs. 31,000/=. Kitale SCC CC. No. E003 of 2023 Page 3 of 6 Judgment
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A post-dated cheque only expresses an intention to pay. Such a cheque may bounce or may be cleared. For those reasons, a post-dated cheque cannot be used as proof of payment of money due. Be that as it may, a perusal of the Respondent’s Bank Statement from ABSA for the period from 24th November 2023 to 19th February 2024 (Rexh.10) shows that the Respondent has since paid the Claimant Kshs. 36,000/=. The Respondent also made a further payment of Kshs. 12,000/= to the Claimant through Mpesa on 12th January 2024 (see Rexh.11). It was the Respondent’s case that the amount due be less the amount he has so far paid and less Kshs. 13,441.60/= being the value of the goods he returned to the Claimant. This court has already made a finding that the returned goods were rejected by the Claimant on account of delayed return and that the Claimant can not be faulted for taking such an action. The Respondent is bound to pay for the 270 pieces of expired Mongare that were rejected by the Claimant. It is against this background that this court finds that the Respondent owes the Claimant a sum of Kshs. 93,074.80/= (less Kshs. 48,000/= paid through cheques and Mpesa) which equals to Kshs. 45,074.80/=. Whether interest of 3% per month ought to be levied on the amount due to the Claimant At the foot of the Statement of Account for the period between 01 st January 2023 and 06th September 2023 (Rexh.12) supplied by the Respondent, it is written in capital letters that accounts are due on demand. All the invoices (Cexh. 1-5 and 7) placed before this court including the one the Respondent claims not to have signed for the Mongare supplied to him provided that interest of 3% per month will be charged on overdue invoices. It is thus abundantly clear that it was a term of the contract between the Kitale SCC CC. No. E003 of 2023 Page 4 of 6 Judgment
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Claimant and the Respondent that an interest of 3% per month was to be charged on overdue invoices. The question that follows is: When were the accounts due demanded? It is this court’s view that the accounts demanded were due from the date of the demand letter herein dated 17th October 2023 (Cexh.10). In the circumstances, this court finds that the amount due of Kshs. 45,074.80/= will attract interest at the rate of 3% per month with effect from 17th October 2023 till payment in full. DISPOSITION The upshot is that judgment is entered against the Respondent in the following terms: a) A declaration is hereby made that the Respondent is indebted to the Claimant the sum of Kshs. 45,074.80/=(Kenya Shillings FortyFive Thousand and Seventy-Four Shillings and Eighty Cents) only b) The sum of Kshs. 45,074.80/=(Kenya Shillings Forty-Five Thousand and Seventy-Four Shillings and Eighty Cents) only in (a) above shall attract interest at the rate of 3% per month with effect from 17th October 2023 till payment in full c) Each party to bear their costs of this claim Judgment accordingly. Read, signed, and delivered virtually at Kitale this 29th day of February 2024 T.O. OMONO ADJUDICATOR In the presence Kitale SCC CC. No. E003 of 2023 Page 5 of 6 Judgment
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