Livingstone Joel Weche T/A Weche Transporters v Pz/Cussons East Africa Limited [2016] KEHC 4600 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO.  137 OF 2012

LIVINGSTONE JOEL WECHE

t/a WECHE TRANSPORTERS…….…………………….PLAINTIFF

VERSUS

PZ/CUSSONS EAST AFRICA LIMITED……………….DEFENDANT

JUDGMENT

By  a plaint dated  24th February  2012  and filed in court  on 21st  March 2012  and subsequently amended  on  17th June  2015 with  leave of this  court, the plaintiff, Mr Wellington Joel Weche  T/A Weche Transporters  instituted  suit against  the defendant PZ Cussons East Africa  Limited seeking  for damages  for breach  of contract, costs   of the suit, interest  on damages and  any other relief  that the  court deems  fit to grant.

The defendant entered an appearance on 12th April 2012 but never filed any statement of defence.  Consequently, the  plaintiff applied for  interlocutory  judgment which  was  duly entered  on  11th May 2012  by the  Deputy Registrar.

This matter  therefore  proceeded  for  formal  proof  after the  defendant’s  efforts  to set aside  the exparte  interlocutory judgment   were  thwarted  by the ruling  of Honourable Odunga  J made  on  5th November  2012  dismissing  the  defendant’s  application dated      27th September  2012  with costs.

The suit  was heard on 21st April 2015  with the  plaintiff  being  represented by Miss  Omwakwe  advocate  whereas   the defendant   was represented  by Miss Nasser.

The plaintiff  testified  as PW1 and stated on oath  that  he  wholly relied   on his witness  statement  dated  24th February 2012  which statement  was  adopted  as his evidence  in  chief. According to the plaintiff, he entered into an agreement of transportation with the defendant on 1st May 2008.  He produced the said agreement as P Ex 1.  That he was to transport the defendant’s goods using his own vehicles.  That he had vehicle registration Nos KAC 642 S Mitsubishi Fuso, KAC 816 V Fh Mitsubishi and KZV 256 Mitsubishi. In addition, he hired another lorry in order to give the transport for the defendant’s goods.  He also hired a driver for each vehicle   and two turn boys to load and offload the said goods.  The vehicles  in question  used to park at the defendant’s premises in Ruaraka and each morning they were  loaded  with  the defendant’s  goods  and transported  and  delivered  to various destinations as  directed  by the  defendant, to  their customers.  That he used to make an average of shs 980,000 per month.  He produced copies of cheque payments made to him by the defendant as P ex 2. The plaintiff  also produced  copies of log books  for the said  vehicles  used to transport the  defendant’s  goods to its  customers  as P ex 3.

The plaintiff  testified  that  on or  about  5th November 2009 he  was informed  by his  drivers that the  Stores  Personnel  of the defendant had   been directed by Mr Jack Odundo & Mr Kiili not  to load  any of the  plaintiff’s trucks with any  goods  and that  this  was  on the orders  of Mr Boaz Chimanzi.

That on 19th November 2009 the plaintiff met Mr Boaz Chimanzi who informed the plaintiff that indeed those   were the defendant’s Senior Management’s orders.  Mr Chimanzi  then  referred  the plaintiff to  a Mr Paul Odupa and Ms  Justine  Musau  who suggested  to the  plaintiff that  he accepts  an increase  from shs 75,000/- insurance  excess to kshs  600,000 and which request  the plaintiff requested that it  be made  in writing which the  defendants  refused to do.  That although he  was  verbally informed that  his transport services had  been terminated, the defendant  refused  to put it  in writing  stating that they  did not  communicate  to small people  like the plaintiff.  Thereafter,  that the  plaintiff met the  defendant’s Managing Director  a Mr Odupa  who was also the  defendant’s  group  distribution manager who  instructed  that the  plaintiff’s vehicles  be fitted with car trackers at the plaintiff’s  own cost but that  again the  plaintiff  was stopped form fixing the  said  to car trackers  until  he received  confirmation from the General Manager.

That  the plaintiff waited  for communication  from the General Manager to  no avail and after two weeks, his  vehicles   were removed  from the defendant’s premises  and   were not allowed  back in the  defendant’s premises.

The plaintiff then wrote to the defendants inquiring on why they had stopped assigning him work but he received no response.  He also instructed his advocates to write to the defendants but still no response    was forthcoming.  That he made an average  of 1 million a month  and as a result, of the  defendant’s breach of contract,  he was unable to make ends meet  as he  was not  earning any income  and he suffered  financial  and  social embarrassment.  He had a loan, to pay workers and other financial obligations which he could not meet yet to date there was not any notice in writing to terminate the contract.  That the   defendant had refused to resolve the dispute through Alternative Dispute Resolution or to formally terminate the contract compelling the plaintiff to file this suit.

The plaintiff also produced  a letter  dated  18th November  2009 complaining  to the defendants  of lack of  work for his  trucks as P exhibit  4   and  the one dated  20th November  2009  as P exhibit 5  to which  no responses  were received.  He also produced P exhibit 6 a letter written by his advocate to the defendants asking for unpaid dues for the past work done.  He also produced  P exhibit 7 letter from the  defendants  dated 6th January 2010  advising the plaintiff’s  advocate  that the claim  for breach of contract  did not  lie and  a reply dated  20th February 2010  by his lawyers.

The plaintiff urged this court   to find that the defendants had breached the contract hence they should pay him damages, costs and any other relief.

In cross examination by Mrs Nasser, the plaintiff stated  that he  had been in  the transport  business  before the  material contract  and that prior, he had  worked with DHL  and others.  He responded that the nature of his business required   that he had trucks and drivers.  He referred to Article 3 of the material contract and stated that it never showed that he was to be assigned work on a need basis or on notice.  He denied that he used to be telephoned or notified before going to carry the goods.  He maintained that his vehicles were stationed at the defendant’s premises throughout for picking and delivering goods and that it   was the defendants who suggested that the vehicles park at the collection premises.  He denied that he had any issues with the defendants when they stopped assigning him work in November 2009.  He denied being given any letter demanding for shs 650,000/- in insurance excess but that it was a verbal demand.  He stated that clause 14   of the contract was clear that he could pay a maximum of shs 75,000/- insurance excess.  He admitted that a theft took place in November 2009.  He admitted  that clause  13 provided  for Alternative Dispute Resolution  as a means  of resolving disputes  and that the plaintiff  wrote to the defendant seeking for  an amicable resolution  to the dispute  but the  defendant refused d to respond.

In cross examination, the plaintiff stated that carjacking and loses in that kind of business was a  normal occurrence.  Further, that  any issues  concerning  the  losses  were resolved  and that  the vehicles   were parked  at the defendant’s premises  to comply  with loading and delivery times.  He stated that the contract was for two years and was valid   at the time it was breached.

The plaintiff also called PW2 Benson Silibwa who testified on oath that he knew the plaintiff.  The witness   worked for the plaintiff as a driver for 8 years and that they did transportation work for the defendant.  He relied on his witness statement made on 24th February 2012   as his evidence in chief.  He confirmed  the evidence  of PW1  on the contract   with the defendant  and transport   vehicles  being  stationed  at the defendant’s premises PW2  stated that he used  to report   to work at  8. 00 am daily  and in  November  2009  they were  informed by Jack Odundo and Mr Kiilu that Mr  Boaz  Chimanzi had directed  them  not to  load  Mr Weche’s  vehicles  and indeed they  were  never given  any goods to  carry despite  the fact that  the tracks  were stationed  at the defendant’s  premises and PW2  and other  drivers  and loaders   continued to report  to work.  That in December   2009 they were instructed to remove the plaintiff’s vehicles from the defendant’s premises at Ruaraka.

Since interlocutory judgment in default of defence had been entered against the defendant, they closed their case without calling any evidence (witness).  The parties’ advocates filed their respective submissions.  The  plaintiff’s  advocates filed  their submissions    on     28th October  2015  whereas  the defendant’s  advocates filed  theirs on  6th October  2015.

In the plaintiff’s submission, his counsel relied on the  plaint dated       17th June  2015 as amended, list of documents  dated  24th February 2012, list  of witnesses  and oral  evidence  tendered in court by the plaintiff  and  his witness Mr Benson Silibwa  and all the exhibits  as produced.  The plaintiff did not frame  any issues for  determination but  submitted that clause  10 of  the agreement  dated  1st May  2008  was clear  that the agreement  would be  terminated  by either  party  giving the  other one month  notice  in writing indicating  intentions  to terminate  the agreement  and such  notice  would be   delivered at the defendant’s   registered  offices  by registered  post or acknowledged  hand  delivery to the Managing Director’s office.

On the other hand, the notice to the transporter would be served by registered post to his last known postal address and deemed to be received 4 days from date of posting.  It  was   submitted that no  such termination notice was ever  issued  to the transporter  by the  defendant  company  and further, that  the  defendant  frustrated  the plaintiff’s   efforts  to have the  dispute on termination of  the agreement  resolved  amicably  by remaining  silent.

According to the  plaintiff, the defendant made oral  but unjustified  demands for  a sum of  shs  650,000/- payable  to the insurance  company  as excess  and refused  to make the demand  in writing   despite  the agreement  providing for a maximum of shs  75,000/-.  It was  further submitted that the defendant’s  failure to provide  to the  plaintiff goods  to carry as  agreed caused him  damage  and loss of about  I million which he could not make  in November  2009  hence he  should be  compensated  for that loss of  income  as a result of breach of contract.

The plaintiff’s counsel  submitted that  the agreement  was to last for  2 years up to  1st May 2010 and that  he should be  compensated  for loss  of income for  6 months  which is  6 million plus interest  at court rates   from 1st May 2015  till payment in full.

The plaintiff’s submissions never applied any decided cases or authorities.  Nonetheless, the advocate filed a list of 5 authorities without stating their applicability or relevance to this case.  I shall however turn to that issue in detail later.

In the defendant’s submissions filed on 6th October 2015, 4 issues   were famed for determination and discussed.

On the first issue  of whether  the defendant in  its  conduct  breached  the terms  and conditions  of the  transport  agreement dated  1st May  2008  executed   between  the parties  hereto,  it  was  contended that  there  was  no dispute  that the agreement   was executed  between  the parties  hereto  which was  to be in  force for  24  months.  It  was contended that there  was no  breach of the agreement  on the part   of  the defendant  but that  it  was the plaintiff  who breached  the agreement.  It was also submitted that although the plaintiff claimed for loss of income amounting to shs 6,000,000 for six months, the same was neither pleaded in his plaint nor particularized.

It  was further submitted that  clauses  1 and  3 of  the agreement  only  provided  that the plaintiff  would only provide transport of defendant’s goods on a need basis and such instructions were to be in writing. That the two articles do not   envisage a continued day to day engagement of the plaintiff by the defendant.  That he was  only  expected to  avail  his vehicles to the  defendant’s  premises  once notified  in  writing  by the defendant  and that the  plaintiff failed to produce  such  notification for  6 months  period claimed   hence  any loss if any was suffered, was  self  inflicted  by the plaintiff.

It was further submitted that the  plaintiff had  admitted  that there  were pertinent  issues  pending  relating to loss of goods  weighing 7 tons and which the plaintiff  was obliged  to indemnify the defendant  but which he had not made good   in accordance  with the transportation agreement   hence  he breached he terms of the agreement  and also failed to agree to pay  excess  fees  of shs  75,000/- or shs  650,000 to the insurance  for  purposes of compensation  to the  defendant hence  that issue   was  pending, which  was as per  Article  14  of the agreement of  1st May 2008.

25.  On whether the plaintiff is entitled to damages for breach of contract in the sum of shs 6,000,000.  It  was  submitted that the  agreement  did not  guarantee assignment    of work to the plaintiff as  alleged and that  neither   did  the defendant  notify the  plaintiff of any engagements  within   the said period  of 6 months.  It  was  also submitted  that the  transportation lease  agreement produced  was drafted  by the plaintiff  himself  and  neither   was  it witnessed   hence it  was not  in existence.

Further, that  a mere  letter of offer  from the bank  was not  evidence  of any loan advanced  to the plaintiff  hence  he did not  prove any loss  capable of being  compensated.  Reliance  was placed  on Chimanlal Meghji  Naya  Shah & Another  V Oxford  University Press(EA ) Ltd  HCC  566/2005  where  a plaintiff  sought damages/rent   for an  agreement  of lease  which    was terminated   prematurely.  The court equated the lease in question to a contract quoted in Black’s Law Dictionary definition of a liquidated claim as:

“Claimamount of which has been agreed in the parties to action or is fixed by operation of law.  A claim which can  be determined  with exactness from  parties agreement  or by  arithmetical  process  or application  of definite  rules of law without  reliance   on opinion  or discretion.  Claim  for debt  or damages  is liquidated  in character  if amount  thereof  is fixed, has been  agreed  upon  or is  capable  of ascertainment  by mathematical computation or operation  of law.”  That the claim of shs 6,000,000 is not grounded on any agreement hence it should be dismissed.

On whether  the plaintiff  adhered  to the agreed alternative dispute  resolution   mechanisms under Article  13 of the  Transport  agreement  of 1st March 2008  it  was submitted that no adherence  to Alternative Dispute Resolution mechanism was done  by the plaintiff before  filing suit  hence this suit  is prematurely  filed as the  requisite procedure for  mediation  was not followed.

Finally, it  was submitted that   it  was  the plaintiff  who breached  Articles 4, 6, 13 and  14 of the agreement  hence he is   not entitled to  the equitable  relief  as he has not come  to equity  by doing   equity hence the suit   should be dismissed with costs to the  defendant.

Determination

I have carefully considered the plaintiff’s claim as pleaded, his evidence and the evidence of this witness and the documents produced   as exhibits.  I have also considered both parties’ advocates’ rival submissions and the filed authorities.  I have however noted  that the plaintiff’s counsel never made  any attempt to explain  to the court how  the bulky  authorities that she filed  were  relevant to her  client’s case. In other words, the plaintiff’s counsel simply dumped her authorities to this court to make sense   out of it. Nonetheless, this being a fresh hearing, this court is entitled to decide this   matter whether or not the parties submit or file authorities.

From the above position, in my view, the following issues arise for determination:

Whether   there was an agreement   between the parties hereto or transportation capable of being breached.

Whether the defendants were in breach of the said Transport Agreement   by failing to assign the plaintiff any work and without giving any notice   of intention of termination of the agreement.

Whether the plaintiff is entitled to damages for breach of agreement and if so, how much.

What orders should this court make?

Who should bear the costs of the suit?

On the first issue of whether  or not  there  was  transportation agreement  between the plaintiff and the defendant, the  plaintiff  pleaded  and he testified, supported by his witness PW2  and produced  an exhibit  which  is a transportation and lease agreement dated  1st May 2008  between the plaintiff and defendant and duly signed  by the said  two parties.  Although  the defendant’s  counsel in their  submissions  purported to state that  the agreement  was  executed and drafted  by the plaintiff  and not witnessed, I find that  submission frivolous  since the rest of the defendant’s  submissions claim that it  was the plaintiff who breached the  agreement   between the two parties.  If there   was no valid agreement between the two parties then what was the plaintiff being alleged to have breached? Further, I must mention that most of the submissions by the defence counsel were  evidential in character  and not based on legal principles. The defendant did not avail any witness to deny the averment by the plaintiff that the agreement produced was not entered into between the two. Counsel for the defendant could not, therefore, by way of submissions purport to state in his submissions that there was no agreement.

The plaintiff has interlocutory judgment in default of defence on record.  The issue of him being in breach of contract is therefore not in issue since he produced the agreement and proved that it was executed by the defendant. The plaintiff  was therefore  formally proving the damages that he allegedly  suffered  following  what he  considered to be a breach  of the transportation agreement  between him and the  defendant.  Although the burden  of proof lay  on the plaintiff to   show what  damages  he  suffered  as a result of  the alleged beach, in this case, I find that the defendant’s  advocate  by getting answers  in cross examination from  the plaintiff and by seriously submitting on  that “ disputed” contract, those submissions and answers  in cross examination are not  and cannot  in law  be substituted for defence  evidence, save for  any valid   challenge  on a point of  law.  This position is fortified by the decision in   Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another [2014] eKLR where the Court of Appeal stated as follows concerning the role of submissions:

“So what we conclude is that the learned trial judge simply lifted the figure of sh.80,161,720/= from the 1st respondent’s submissions and awarded it against the appellant.  This was wholly in error.  Submissions cannot take the place of evidence.  The 1st respondent had failed to prove his claim by evidence.  What appeared in submissions could not come to his aid.  Such a course only militates against the law and we are unable to countenance it.  Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one.  Submissions, we reiterate, do not constitute evidence at all.  Indeed there are many cases decided without hearing submissions but based only on evidence presented.  In any event all the 1st respondent would claim and prove as loss could only relate to the shares in the companies and not the properties of the companies.  And even that he did not do.”

In this case, the plaintiff’s evidence on the existence of the contract which he produced and which this court has had an opportunity to peruse is uncontroverted and unchallenged.  In the end, I find that there was a valid agreement for transportation of the defendant’s goods made on 1st May 2008 between the plaintiff and defendant and which was capable of performance and or being breached.

On the second  issue of whether the defendants  were in breach of the said transportation and lease agreement  by failing to assign  the plaintiff  any work  and without  giving any  notice of  termination of the agreement,  the plaintiff  testified  and referred  to several clauses  of  his agreement   with the  defendant dated 1st May 2008.  He stated, and his evidence was corroborated by the testimony of PW2 that the agreement was for 24 months from 1st May 2008.  That he was to transport goods from the defendant’s   premises at Ruaraka to its customers as would be directed by the defendant.  He produced copies of log books for the vehicles he used in the transportation.  He also stated that on  5th November  2009 without any notice, the defendant’s  agents/servants informed his  drivers that they would not be allowed to load or  transport  any goods   and that his  efforts  to get  written communication on the  same fell on deaf ears  even after  meeting Mr Boaz Chimanzi  the Managing Director.  That  thereafter the defendant’s  agents started  making unreasonable  demands  of shs  650,000 as  excess  insurance but that  they refused  to demand it  in writing.  His vehicles remained at the defendant’s premises until December 2009 when his drivers   were instructed to remove them.  He also stated that the defendant’s agents  contemptuously  stated that  they would not communicate  to small people  like the plaintiff.  That at one point when he met  the Managing  Director  and  Group  Distribution  Manager  Mr Odupa, he  instructed the plaintiff to  fit his vehicles with car tracking  devices  at the plaintiff’s own costs and again  stopped him from doing so until he received   confirmation  from the General Manager.  That he  waited  for such  communication  from the General Manager  which  was  never availed  until December  when his  vehicles  were ordered  to be  removed  from  the defendant’s  premises.  Further, that despite  his concerted  efforts  of writing to the  defendants to inquire on the issue, the defendants remained  silent, not  responding  even on the  mode of resolution of the dispute  as provided for  in the agreement, hence, the institution of this suit.

The above  evidence  has  not been  controverted by  any other evidence  except  that  the defendant’s  counsel  as earlier  stated  has purported  to controvert  that evidence  and contended  in their submissions  that it  is the  plaintiff who  breached the  agreement in that  the  agreement   was  not  guaranteeing daily assignment of work; that the plaintiff  was  only to go to the  premises  upon written  notification and that  there  were pending  issues   following   loss of  7 tonnes  of  goods belonging  to the defendant  while in the custody of the plaintiff.  Further, that the suit   is premature as the Alternative Dispute Resolution mechanisms/procedures provided for in the agreement    were never adhered to prior to the ruling of the suit herein.

I have carefully perused the agreement  subject  of this suit.  It is dated  1st May  2008 and signed  by Mr Lawrence  Joe  Weche  Transporters and Vaneet  Khurana  Head of  Supply Chain as  the lawful representative  of the defendant company  on 19th May 2008 and  15th May 2008  respectively. Article  1  of the agreement provides in clear terms  that the plaintiff was appointed  as transporter  in his own  vehicles  for the transport  of PZ Cussons  (the defendant’s) goods  for the agreed route or such other  routes  as shall from time to  time be  agreed in writing  between  the parties.  The agreed routes are stipulated  in Article  3(a)  whereas the contract  rates  are provided in that table with provision for  5%  incentive on the  load delivered to the customers if the  delivery  is done  within the stipulated  lead  times from the  time of  loading  as per the  appendix  schedule 1.  The said Article   also provides that the company shall ensure that advance warning of maximum 24 hours   will be given   to the transporter prior to collection of goods.

Although the defendant  claims in their submissions  that the  contract   was not breached  by non assignment  of any work  to the plaintiff  during the month of November  2009 by virtue  of the above  clause, my  humble view is that  to so  hold  would be to  misinterpret  the intentions  of the parties  when they  entered into the  contract.  The tenure of the contract   was clearly 2 years from 1st May 2008 and not enforceable on a need basis.  If that   were  to be  the case, then  there  would be no need  for the plaintiff  to be  required as a matter  of fact, which  evidence was not controverted, to  station his  vehicles at  the plaintiff’s premises to ensure  that the  loading  and offloading  of the collected/delivered  goods   was done  in real  time  and more so, when an incentive  of 5%   was given  to the plaintiff for  meeting the real time requirements of delivery as per the  Appendix Schedule  1 in the respective  areas.

In addition, as the contract  was clearly  for  2 years, if for  any good  reason the defendant  had no need of the plaintiff’s trucks or had no goods to be transported for the 6 months period commencing  November  2009  to the  end of the contract  in May 2010, there is no reason  why the defendant  did not  communicate  that decision  to the  plaintiff  instead of  remaining  silent  and frustrating  the plaintiff. Further, there would in my view no need to provide for a one month notice of termination of the contract by either party if the contract was based on a need basis.

The plaintiff   testified on oath and stated that he was treated with contempt when the defendant’s officials  refused to respond to any of  his inquiries  and attempts  to resolve  the issues if any by amicable  settlement.  That they said that   they would not communicate with small people like him.  Those officials  nonetheless  met the plaintiff and verbally made demands that he increases the maximum insurance excess  from shs  75,000 to shs  650,000 and when he  requested them to put  that demand in writing, they  rejected  and remained  silent about it.  This court notes that the shs 75,000/- maximum insurance excess was part of the written contract.  It   could therefore only be varied by another contract in witting and not verbally.

In addition, the demands that the plaintiff fixes car tracks on his vehicles  at his own cost was not part of the  contract.  It was a new term being introduced by the defendant’s officials verbally.  And despite his willingness to comply, he was stopped and told to wait for confirmation from the General Manager.  That communication never came by.

Furthermore,  Clause  10 of the Agreement was clear that  the agreement   may be terminated  by either  party giving   the other  party one (1) month’s notice in writing  ( not in silence) indicating  the intention  to terminate  the same.  The mode of delivery of the said notice of termination in writing is also provided under the said   clause/article.  The evidence that is uncontroverted as adduced by the plaintiff is that no such one (1) month notice of termination of the contract in writing was given by the defendant of its intention to terminate the agreement. If the contract was on a need basis, then why would there be a clause for termination notice of one month? This court does appreciate that the agreement in issue was made by lay persons and there is no evidence that it was drafted with the assistance of any legal mind and therefore the possibility of ambiguous terms being present is very highly probable. Such clause that this court finds ambiguous and therefore contradictory to the subsequent clauses is the clause that the company shall ensure that advance warning of maximum 24 hours   will be given   to the transporter prior to collection of goods. It is not clear whether the warning was for the plaintiff not to collect any goods or for the plaintiff to collect goods.

In this case, therefore, It follows that the agreement in issue must be read as a whole in order to establish the real intentions of the parties.  It would not be in order to isolate a portion of a clause in the agreement to give effect to the intentions of the parties.  If the agreement   was intended to be one on a need basis and not intended to be a continuous one for 2 years as stipulated   in Article  2 thereof, and with a clause for notice of termination in writing and mode of delivery of that notice to the opposite party, then this  court does not  see why Clause  10 and Clause  15 would be present  therein. Clause  10   thereof as  stated is on termination of the agreement  whereas  Clause  15 stipulates  that the defendant would  conduct  half yearly performance  review  on the transporter’s performance of its  obligations  within the  agreement  in accordance  with the performance  measurements  attached in  Appendix Schedule C.  The  key performance indicators in Schedule Appendix  2  are:

On time  delivery with a target  of  100

Damages  free deliveries  at  0

Return of complete documents on time   target being 100.

There  is no evidence  adduced  by the defendant to show that it had done a half  year performance  review of the plaintiff’s performance  of his  obligations under the agreement  and that it had  found him  incapable of  meeting the  targets  as per the key  performance  indicators  stipulated  in Appendix 2, for it to claim that he had breached the terms of the agreement.

It is, therefore, on those grounds  and reasons  advanced  that I find the  defendant’s  arguments  that it  was the plaintiff  who breached  the agreement  unsupported and unconvincing.

To the contrary, I find that  it  was the defendant who  by its express conduct, breached the terms of the contract  by failing to assign any work to the plaintiff; failing to give notice of  termination of the contract  and simply attempting  to  vary terms of  the contract/agreement which  was in writing through oral maneuvers.  Although common law allows for a written contract to be changed by subsequent mutual agreement from time to time, that mutual agreement   must be in writing.  The argument by counsel for the defendant that there  were pending issues of loss of the defendant’s  goods  to the tune of 7 tones and that the issue of  insurance  excess  of shs 650,000/-payable by the plaintiff had not  been  resolved, in my humble view, is an attempt by the  defendant to  impose to the plaintiff terms of a contract  which  did  not form part of the contract.  Furthermore, those allegations are emanating from the bar by an advocate through submissions and not from the defendant by way of tested evidence on oath. The role of  counsel is confined  to legal representation and advise and to submitting to clarify  the issues  on record  and not to seek to  adduce evidence on behalf of  his  client as  was the case on the part  of the defendant’s counsel in this case which  is very unfortunate. I find that part of the submission which the defendant’s counsel gathered from answers in cross examination is no evidence  for the defendant   that there   were issues  of insurance excess and loss of the defendant’s goods in transit pending between the parties. If  that  was   the case, the question is, why did  the  defendant not file a defence  in time  to that effect  and  seeking  compensation by way of a counterclaim  and secondly, why did the  defendant not write  to the plaintiff  notifying  him of its intention to terminate the contract  as per Clause  10, on account  of those alleged  pending  issues?

Section 98  of the evidence  Act Cap 80 Laws  of Kenya  is clear that  parole evidence  shall not be admitted to vary  the terms  of  a document which is required  to be in writing. See also Kinyanjui and another V Thande & Another [1995-98] EA 159.

In my humble view, submissions  by counsel from that bar cannot amount to evidence  which seeks to assert a  counterclaim for the alleged  loss of  goods belonging  to the defendant  while they  were in custody of the plaintiff. Submissions are not the forum for lodging counterclaims. A counterclaim or set off has to be by way of pleadings and evidence adduction.  In this case I find no counterclaim filed by the defendant and therefore I reject that submission and dismiss it. In addition, from the payment vouchers produced in evidence, it is clear that where there was any alleged loss of goods, the plaintiff was always surcharged for the loss and the value thereof deducted from the amount due and payable for the month after deliveries/loss. It cannot therefore be true that there was any other issue pending between the parties, and which is not apparent on record.

On the issue of Alternative mechanisms of resolving the dispute between the parties hereto, Clause 13 of the agreement   proposed the manner of resolution of any dispute between the parties to the agreement. However, that clause, in my view,  does not  oust the power and  or jurisdiction of this court to  hear and determine the dispute for reasons  that the plaintiff  testified  and produced documents showing his concerted efforts and communication in writing to the defendant, seeking  for an  amicable settlement to the issue but the defendant  contemptuously remained  silent  and its agents told  him verbally  that they  could not  communicate  with the  plaintiff   who was such a small person  to them.  With that kind of bossy attitude exhibited by the defendants agents/officials against the plaintiff, what could the plaintiff small  person  have done?  The answer    was to revert to the court for resolution of the dispute  since even the so called Alternative Dispute Resolution mechanism proposed in accordance  with the mediation procedure  was not  proved to have existed.  There   were no proposals  as  to  the mediation procedures  to be applied in case of a dispute arising from enforcement of the material agreement.

Furthermore, this court does not see how the Managing Director of the defendant would be the nominated officer responsible for seeking resolution of the dispute.  Was he going to be  a neutral mediator   when he  was an interested  party to the outcome of the dispute?  Would he not be a judge in his own cause?  In my view, the jurisdiction of this court   which  is granted  by statute and  the Constitution  was not ousted by  that vague  clause which did not state  where the  mediation  procedures  applicable  would come  from.  Accordingly, I find that the plaintiff  was right  in seeking   the remedy    from an established  court of  law   since the  defendant  chose to remain  non committal  and non  responsive  to all  correspondence  send to it  by the plaintiff.  It  was not until the  plaintiff  threatened  to sue the  defendant-that  Paul Odupah by his  letter of  6th January  2010   wrote to the  plaintiff’s counsel claiming  non clearance  of  accounts  for November  2009  was due to the plaintiff’s  liability  for loss of several  customers’  goods  which had  not been delivered. The said  letter  also indicated  that the  plaintiff had already  been paid November dues  less  what was still under reconciliation.

The  above  position then leads me to  discuss the issue of  whether  in view of  the clear breach  of contract by the defendant  that is, failure to notify  the plaintiff by giving  him one  month  notice  of its intention  to terminate  the contract  and instead, remaining silent on that  issue of termination, the plaintiff  suffered  any  loss and damage  and if  so, how much damages  would the plaintiff  be entitled to?

In the plaint  dated 24th February 2012  and as  amended  on with leave  of court, the   plaintiff  pleaded  that he  had lost  profit  or income of  approximately kshs  1 million  following  breach of contract by the  defendant.  He also claimed that he suffered financial stability and may not recover at all.  In paragraph  12, the plaintiff claimed that  he  was earning  approximately  kshs  1 million  per month  hence  he claimed  damages  for breach  of the contract  that  was never  terminated  until  1st   May  2010.  The period between November 2009 and 1st May 2010 is 6 months.  If the  plaintiff   was earning shs   1,000,000 per month, then according to his pleadings and testimony, he  would be  entitled  to shs  6,000,000  per month, until the  contract  was terminated  on 1st May 2010.

The question is, would the plaintiff be  entitled  to such sum of  money as  pleaded  and testified  on?  The  plaintiff produced  remittance  advise  vouchers  as P Exhibit  2 which  showed that several  vouchers  would be  prepared  according  to the delivery of goods  and he  would be  paid the  amounts  due, less lost goods.  Going by the  remittance  advices  produced for  July 2009, August  2009, February/March  2009, April 2009 , May  2009 and June  2009, it is clear that the plaintiff   was paid  according to  the  deliveries   and on a monthly basis.  For example in July/August he had 8 deliveries and was paid kshs 809,629. 70.  In February  2009  he had  6 deliveries   and he  received  kshs  919,343. 80. In March 2009 he had 9 deliveries and received 843,191. 55. In  April  2009  he had  12  deliveries   and   was paid   1,122,185. 70   together  with one delivery in February 09  less  lost goods.  The plaintiff calculated his lost earnings based on what he used to earn per month.  However, the payment vouchers clearly show that payment   was in accordance   with the specific   deliveries and in some cases, in one month, he could be paid for deliveries  made the previous month  or several other dates falling in different months.

In my view, there is clear evidence that before the defendants completely stopped assigning the plaintiff goods to transport, the plaintiff earned between 809,000 and 1. 21 million in a month depending on the number of deliveries and those payments were made every end of the month.

A claim for damages  for  breach  of  contract  is a  liquidated  damage  which  must be  specifically pleaded  and strictly proven.  In this case, the plaintiff pleaded that he used to earn about 1 million and that he lost this amount for six months. He also testified that  his tracks  used to stay  at the defendant’s premises  to load  and deliver goods  in time.  That evidence was never controverted.

However, although the plaintiff claimed for  shs 6,000,000 to cover  six months  lost income, I am  unable  to award him those  damages as claimed  for reasons that  upon realizing that  the defendant   was in breach  of the agreement  and  was  no longer  assigning  him any  work  during the month of November  2009, which information reached him through his drivers on site, and  asking him to remove his  trucks  from the defendant’s  premises in December  2009, the plaintiff ought  to have mitigated the damages  that he  was   suffering following  non assignment  of work.  He could not be expected to have sat there and mourned over the breach of agreement.  He should have looked for  alternative  contracts  elsewhere.  This   was not a  contract of employment but a contract to provide transport services. It was therefore a service contract and not an employment contract as  was in   the case of Bonventure  Wanjala  Kimasis V Shanga Engineering  Ltd  IC cause  No. 372  of 2011  (Marete J) cited  by the plaintiff, where  general damages  could be  awarded  for the remainder  of  the contract  period as provided for in the statute.  This was a service contract for transportation of goods. In African  Highland  Produce Ltd  V John  Kisono CA 264/99  [2001] e KLR theCourt of Appeal held that:

“the  trial judge  was in error  to  allow the plaintiff any loss  of user  for more than 21  days.  The plaintiff  was  only entitled   to loss of  user  for  21 days  which  period  was  necessary to effect  in full  all repairs  on his BMW car.  The judges  of appeal allowed  the appeal on the  ground that  the plaintiff  did not  take reasonable  steps  to mitigate  the loss  which  he sustained  consequent upon  the accident. The court further stated that the question of what a  plaintiff  would do in mitigation of loss or damages  is not  a question  of law   but one of  fact in the  circumstances  of each case  and the  burden  of proof  is upon the defendant.  ( See also Halsbury’s Laws  of  England  VOL 11 page  289  3rd Edition 1955. ”

The Court of Appeal in the above case  further  stated that:

“ it was the  duty of the plaintiff  to take  all reasonable  steps  to mitigate  the loss  he has  sustained  consequent  upon the  wrongful act in respect  of which  he  sues, and he cannot  claim  damages  of any sum which is  due to his own neglect.  The  duty arises  immediately a plaintiff  realizes that an  interest  of his  has  been  injured  by breach  of  contract or  a tort, and he   is then  bound to get, as best as he may, not only in his own interest  but also  in those  of the defendant.  He  is, however, under no obligation to injure himself, his character, his business or his property, to reduce  the damages  payable by the wrongdoer.  He need not  spend money to  enable  him to minimize the  damages, or embark on dubious litigation.  The  question  of what is reasonable  for the plaintiff   to do in  mitigation of  his damages  being one  of fact and   not law, and depending on the circumstances  of  each  particular  case- and the  burden  of proof  being  upon the defendant.”

I am also inclined to accept the decision in Chiman lal Meghji Naya  Shah (supra)  where Warsame  J  was  clear that:

“ In law,  a party faced with a breach of  contract is  obliged  to mitigate  his/her  loss so that the liability  and obligations of the  parties is minimized with no  much detrimental effect….”

In that case, the landlord sued a tenant for damages  for breach of contract.  He  sought rent for the remainder  of the  period  of the tenancy  which  was terminated  in breach.  The court  held  inter alia…….

“……..there is no evidence to show, that the plaintiffs  have  not gotten  another  tenant  for the remaining  period.  It is  incumbent  upon the landlord  of a  premises  to take  the necessary  steps to look for  tenants.  They cannot  just sit  back and say the tenant  who left   would  have to shoulder the rent  for the remaining   lease period……the landlord  cannot  perpetually wait and  waste the premises simply  because he  had a fixed lease with no termination clause……”

In the instant case, there is evidence that the defendant breached the contract by unilaterally terminating it without giving the required one month’s notice in writing and delivered to the plaintiff in the mode spelt out in the contract. There is however, no evidence that the plaintiff could not get alternative contract of transportation.  He never stated that he looked for that alternative work and failed hence, the total loss for 6 months for which the contract    was to terminate.  It  would indeed  be a great  injustice  if this court was to order the defendant  to pay damages   for the whole period  of 6 months   as there was a possibility of the plaintiff  being contracted to transport  goods  to some other person.  There  was also no evidence that the contract between the parties hereto tied  the plaintiff  transporting only goods belonging to the defendant during the subsistence of that contract and that  therefore  the plaintiff  was  bound to hang  onto  the  defendant  without  the slightest  opportunity   to get alternative  contracts  for that period.

In this case, although the plaintiff alleged that he suffered financial embarrassment as he could not meet his obligations of paying workers and repaying a bank loan, he did not call any evidence that he owed any worker any sums of money due to the breach of contract. Furthermore, there was no documentary evidence that the plaintiff had taken any loan  from the bank and that he was unable to repay it due to the breach of contract. Application for a bank loan is not the same as a bank loan or default in repayment. This court cannot award special damages based on an assumption. As contrasted from the case of Gateway  Insurance Company  Ltd Vs  Simon Muchiri Kahoro  HCCA  572/2009 cited by  the plaintiff’s counsel, the claim  therein was for total  value  of stock in  trade  insured  together  with  fixtures  and household  goods  worth kshs  1,650,000 following  destruction of the plaintiff’s  property  which  were  insured  by the defendant (appellant). That contract of insurance is totally different from this case where the contract is for provision of transport services. That notwithstanding, the learned  Judge  in that case  did  observe that a party who beached his part of lawfully contract by refusing to honour its terms by unreasonable  delay should be required to compensate for the loss incurred  thereby.  What the judge was concerned with in that case is the quantified loss which was proven.

In this case, although the plaintiff has claimed for six million Kenya shillings being the loss he suffered until the contract legally came to an end, Iam unable to find for him for that sum. Instead, In view of the fact that the contract provided for one month notice of termination and the mode of service of the contract was also specifically provided, which notice was not given by the defendant, I find that the plaintiff is entitled to income /earnings for one month in lieu of notice, this being any other relief that this court deems just and appropriate to grant as prayed for in prayer No. (d) of the plaint. As the estimates for monthly earnings were provided, though not uniformly, taking the average for three months vouchers produced in evidence, I would award the plaintiff damages of Kshs 950,386. 13 being the average of 809,629. 70;919,343 and 1,122,185. 70.

For those reasons, I find that there was a valid service contract between the plaintiff and the defendant which the defendant unilaterally breached. However, the plaintiff   has failed to prove that he is entitled to damages for the six months remainder of the contract period as a result of the breach of contract. However, Iam satisfied that the plaintiff was highly inconvenienced by the defendant’s failure to give him any work for transportation for the month of November 2009.  There is clear evidence that the plaintiff arbitrarily, unilaterally and without any notice terminated the contract and in December, 2009 evicted the defendant’s Lorries from its premises.  In Arch. Katerega & Another =vs= Uganda Posts Ltd (2012) UG COMMC 70 the High Court of Uganda stated interalia that an award for damages for breach of contract is made to compensate for the inconvenience and hardship subjected to  a party for failure to pay.

In the end, I hold that the plaintiff has established his claim against the defendant on a balance of probabilities on the prayer for any other remedy or relief that the court deems fit and just to grant. I award him damages equivalent to one month’s earnings in lieu of Notice of termination of contract totaling Kshs 950,386. 13. I also award costs of the suit to the plaintiff and interest at court rates on the sum awarded from date of filing suit until payment in full.

Those are the orders of this court.

Dated, signed and delivered at Nairobi in open court this31st day of May 2016.

R.E. ABURILI

JUDGE