Rapid P. Kenya Limited v Mituxize Saving & Credit Co-operative [2017] KEHC 4421 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

HGH COURT CIVIL CASE NO.26 OF 2015

RAPID P. KENYA LIMITED......................................................PLAINTIFF

VERSUS

MITUXIZE SAVING & CREDIT CO-OPERATIVE..............DEFENDANT

JUDGMENT

1. The plaintiff’s claim against the defendant as per paragraph 3 of the plaint is:-

“Recovery of a liquidated sum of Kshs.15,500,000/-, being monies due and owing from services rendered in the sale of 2,000,000 of the defendant’s shares to a third party pursuant to an agreement between the plaintiff and the defendant dated 6th February 2015. ”

2. The defendant had entered a defence and a counterclaim in the case.  They were served with a hearing date for 20th April 2017 and failed to appear.  The matter then proceeded ex-parte.

3. The plaintiff’s evidence was adduced in court by its managing director Kennedy Nabuko Rupinga PW1.  His evidence was that their company does urgency undertakings for clients.  That vide an agreement entered between the plaintiff and the defendant on 6th February 2015, the defendant engaged the plaintiff to sell for the defendant their 2 million Co-operative Holding Shares to buyers at Kshs.4. 50cts per share.  That if they sold over and above that figure the plaintiff was to benefit from the price differential.  That on selling the whole of the shares they were entitled to a commission of Kshs. 1 million.  That the plaintiff sold the shares to Kenya Police Sacco at Kshs.12/- per share.  The plaintiff was entitled to the price difference of Kshs.7. 50 per share totaling to Kshs.15 million plus the commission of Kshs.1 million to make a grand total of Kshs.16 million.

4. That the defendant was paid a total of Kshs.24 million by Kenya Police Sacco.  The defendant gave the plaintiff cheques amounting to Kshs.16 million.  The plaintiff banked the cheques.  Later their bank informed them that the cheques had bounced.  They were surcharged Kshs.37,400/- for the bounced cheques.  Later the defendants paid a sum of Kshs.500,000/-.  They did not pay the balance of Kshs.15. 5 million.  The plaintiff sued thereby claiming:-

(1) Kshs.15. 5 million

(2) special damages of Kshs.37,400/-

(3) costs of the suit

(4) interest on (1), (2) and (3) at court rates until payment in  full.

5. In his evidence PW1 produced various documents to prove their case including the agreement between the plaintiff and the defendant PEx4, forwarding letter of 17 cheques amounting to Kshs.16 million by the defendant to the plaintiff, PEx6, the return cheques advice forms from the bank after the cheques bounced, PEx7(a)-(q), the unpaid cheques covering form from the bank indicting the surcharge of Kshs.37,400/-, PEx8, copy of deposit slip of Kshs.500,000/- from the defendant, PEx10 and certificate of payment of the 24 million shillings to the defendant by Kenya Police Sacco Society Ltd, PEx11.

DETERMINATION:

6. I have considered the evidence adduced in court on behalf of the plaintiff and the documents produced in support of the case.  The evidence adduced by the plaintiff against the defendant is water right.  The defendant did not appear in court to challenge the evidence.  I find that the defendant owed the plaintiff a sum of Kshs.16 million upon execution of an agreement of sale of shares.  The documents produced in court show that the defendant was paid the money by the buyers but only paid the plaintiff a sum of Kshs.500,000/- thereby leaving a balance of Kshs.15. 5 million.  The plaintiff has proved that the cheques issued by the defendant bounced and they were surcharged a penalty of Kshs.37,400/- for the bounced cheques.  The whole claim has been proved on a balance of probability.

7. In view of the above I enter judgment for the plaintiff against the defendant to the sum of Kshs.15. 5 million, special damages of Kshs.37,400/-, costs of the suit and interest at court rates.

Delivered, dated and signed at Kakamega this 19th day of July, 2017.

J. NJAGI

JUDGE

In the presence of:

Miss Mukolwe…………….. for plaintiff

……………………….…….. for defendant

Paul…………....…………... Court Assistant

Plaintiff ………………….… Absent

Defendant ………….……...Absent