Judgement SCCOMM E237 OF 2023

REPUBLIC OF KENYA
IN THE SMALL CLAIMS COURT AT NAIROBI

MILIMANI SMALL CLAIMS COURT
CASE NO. SCCCOMM NO. E237 OF 2023
DENNIS MUTUKU MANZI ……………………………….…….… CLAIMANT

VERSUS
JPC TRADE CO. LIMITED ………………………….….…. 1ST RESPONDENT
DANIEL MUIVA KITONYI ………………………………….2ND RESPONDENT
JUDGEMENT.
The claimant vide a statement of claim dated 16th January sought judgement to be
entered against the respondent for a total sum of Ksh 619,500, interest on the sum and
costs. It was alleged by the claimant that he sought the services of the respondent to
import a motor vehicle, specifically a silver Toyota Succeed 2wheel drive and of year
of registration 2015/04. He further states that the 2nd respondent under the instruction
of the 1st respondent approached him to assist him with this. Consequently, the
claimant entered into a car importation agreement with the respondents the terms of
which were that the 2nd respondent would import and deliver the said car on behalf of
the claimant within three months upon receipt of payment.
The claimant avers that despite his payment which was confirmed on 18th March
2022, the respondents failed to import and deliver the car and therefore are in breach
of the agreement. The claimant further avers that upon inquiry the respondents
claimed that the vehicle was still on shipment and went so far as to not answer his
calls and failed to refund him his money.
The respondents were duly served. The 1st respondent filed a response to the claim.
Despite service the 2nd respondent failed to enter appearance and file a response to the
claim. Default judgement was therefore entered against him on 13th March 2023.
The 1st respondent through a statement of claim dated 27th January 2023 stated that
they did not transact directly with the claimant but through the 2nd respondent who
was their client and that the claimant was an intended consignee. The 1st respondent
admits that they issued an invoice as instructed by the 2nd respondent for a sum of
5000 USD which was deposited in their account on 18th March 2022 by the claimant
but the 2nd respondent asked that the money be used to purchase a Toyota Hiace Van.
The 1st respondents aver that the terms and conditions for contracting with the
company are in the company’s website, and that these terms and conditions are
binding between them and the 2nd respondent and supersede any agreements between
the claimant and the 2nd respondent. They further aver that there was no written
contract between the claimant and themselves and that they followed the instructions
of the 2nd respondent who was their customer to use the money deposited by the
claimant for import of a Toyota Hiace van which was imported and delivered to the
2nd respondent. The 1st respondent therefore asked the court to dismiss the suit against
them with costs.
ANALYSIS AND DETERMINATION.

From the foregoing, the issues for determination that arise are:
Whether there is a contract between the claimant and the respondents.
From the evidence presented all the dealings were done between the claimant and the
2nd respondent and an oral contract therefore existed between them.
However, there was no existing contract between the 1st respondent and the claimant.
In the case of William Muthee Muthami versus Bank of Baroda (2014) eKLR it
was stated that
“In the law of contract, the aggrieved party to an agreement must, in addition, prove
that there was offer, acceptance and consideration. It is only when those three
elements are available that an innocent party can bring a claim against the party in
breach.”
Applying this, in order for there to be a contract one must prove that there was an
offer, acceptance and consideration. In the present case, these three elements were
present in the interactions between the claimant and the 2nd respondent hence there
was a valid contract between the two parties and the court so finds. However, there
was no interactions between the claimant and the 1st respondent therefore it cannot be
said that there was a valid contract between the two parties. The claimant deposited
the USD5,000 to the 1st respondent’s account upon the instruction of the 2nd
respondent under the pretext that he was an agent of the 1st respondent. However,
from the evidence submitted by the 1st respondent, the 2nd respondent was their client
and not their agent. Due to this, the court finds that the actions of the 2nd respondent
are not binding upon the 1st respondent.
Whether the claimant is entitled to the reliefs sought.

Since it is already established that there was a valid contract between the claimant and
the 2nd respondent, the issue for determination is whether the claimant is entitled to
reliefs. It is evident that their existed a valid agreement between the 2nd respondent
and the claimant for the payment of USD 5,000/= to the 1st respondent’s account upon
which the 2nd respondent would facilitate the import of Toyata succeed within three
months from receipt of the payment. However, upon receiving the money, the 2nd
respondent instructed that the money be used in purchasing a different car, Toyota
Hiace van for his own benefit. The 2nd respondent also failed to refund the money to
the claimant. The 2nd respondent who failed to file a response to the claim did not
rebut the claimant’s claim or the 1st respondent’s defence.
In Anson’s Law of Contract, 28th Edition at pg 589 and 590 it is stated that:
“ Every breach of a contract entitles the injured party to damages for
the loss he or she has suffered. Damages for breach of contract are
designed to compensate for the damage, loss or injury the claimant has
suffered through that breach. A claimant who has not, in fact, suffered
any loss by reason of that breach, is nevertheless entitled to a verdict but
the damages recoverable will be purely nominal”.
The claimant herein is entitled to the reliefs sought due to the breach of contract by
the 2nd respondent. Having found that no contract existed between the 1st respondent
and the claimant the court finds the claimant has failed to prove its case against the 1st
respondent. The money paid to the 1st respondent’s account was under the instructions
of the 2nd respondent and the 2nd respondent proceeded to instruct the 1st respondent to
use the money to import a different car for his own purpose. The 2nd respondent is
therefore liable to pay the amounts claimed. The suit against the 1st respondent is
dismissed however bearing in mind the circumstances of this case no orders as to
costs is made.
Consequently, judgement is entered for the claimant against the 2nd respondent
in the following terms;
a) Kshs. 619,500/=
b) Interest on the above at court rates from the date of filing suit until
payment in full.
c) Costs of the claim.
Stay of execution for 30 days.
___________________________
S.G. GITONGA (MRS)
SRM/ADJUDICATOR.
Dated, signed and delivered at Nairobi via email this 19th day of July 2023.

Judgement SCCOMM E237 OF 2023

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REPUBLIC OF KENYA

IN THE SMALL CLAIMS COURT AT NAIROBI

DENNIS MUTUKU MANZI ……………………………….…….… CLAIMANT

ANALYSIS AND DETERMINATION.

Whether the claimant is entitled to the reliefs sought.

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