East African Business Company Ltd v Kiptoo t/a Moshkip Enterprises (Commercial Case E003 of 2023) [2024] SCC 13 (KLR)
The bottom line
#A Kitale court ruled a supplier could refuse late-returned expired goods and treat post-dated cheques as promises to pay, not actual payments.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether 270 pieces of Mongare were returned to the Claimant
- 2.What is the amount due to the Claimant
- 3.Whether interest of 3% per month ought to be levied on the amount due to the Claimant
Key legal issues
#Whether the 270 pieces of Mongare were validly returned
The returned expired goods were rejected by the Claimant on account of delayed return, and the Respondent is bound to pay for them
The WhatsApp exchanges showed the Claimant rejected the returned expired goods because of delayed return, and sought to return them to the Respondent. The Respondent did not produce the delivery note allegedly signed by Kidonyi acknowledging receipt, nor the delivery note he declined to sign. The court held the Claimant could not be faulted, as allowing returns at a merchant's whims would lead to absurd commercial outcomes.
What amount is due to the Claimant
Kshs. 93,074.80/= less Kshs. 48,000/= paid, equalling Kshs. 45,074.80/=
The Claimant conceded Kshs. 69,074.80/= was owed exclusive of interest; the Respondent's statement showed Kshs. 93,074.80/=. Post-dated cheques were not proof of payment, but the ABSA bank statement showed Kshs. 36,000/= paid and Mpesa payments of Kshs. 12,000/=, a total of Kshs. 48,000/=. No credit was given for the rejected returned goods.
Whether interest of 3% per month is payable
Yes; the 3% monthly interest term was contractual, running from the date of the demand letter (17th October 2023)
All the invoices, including the one the Respondent claimed not to have signed, provided for interest of 3% per month on overdue invoices, making it a term of the contract. Since the statement of account stated accounts were due on demand, the accounts became due from the date of the demand letter dated 17th October 2023.
Legal principles established
#- A post-dated cheque cannot be used as proof of payment of money due
- A supplier is entitled to reject returned goods where the return is unreasonably delayed
Court orders
#- 1.A declaration that the Respondent is indebted to the Claimant the sum of Kshs. 45,074.80/= only
- 2.The sum of Kshs. 45,074.80/= shall attract interest at the rate of 3% per month with effect from 17th October 2023 till payment in full
- 3.Each party to bear their costs of this claim
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Small Claims Court Act (Kitale SCC CC. No. E003 of 2023)
Relief refused
#Credit for the 270 returned pieces of Mongare valued at Kshs. 13,441.60/=
The court found the returned expired goods were rejected by the Claimant on account of delayed return, and for good reason
Costs
Each party to bear their costs of this claim
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
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.
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.
a) A declaration is hereby made that the Respondent is indebted to the Claimant the sum of Kshs. 45,074.80/=(Kenya Shillings Forty-Five Thousand and Seventy-Four Shillings and Eighty Cents) only
c) Each party to bear their costs of this claim
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "East African Business Company Ltd v Kiptoo t/a Moshkip Enterprises (Commercial Case E003 of 2023) [2024] SCC 13 (KLR)", Case Analysis (2024). Kitale SCC CC. No. E003 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/scc/2024/13/eng@2024-02-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.