Legal Claim Response Guide

REPUBLIC OF KENYA IN THE SMALL CLAIMS COURT AT NAIROBI CLAIM NO. SCCCOMM E.*/* MARTIN WANDIE KIBUGI t/a NYUMBANI SUGAR LIMITED .CLAIMANT VERSUS MANIPAL INTERNATIONAL PRINTING PRESS LIMITED. RESPONDENT FAINA ENTERPRISES LIMITED .INTERESTED PARTY RESPONDENT'S WRITTEN SUBMISSIONS Your Honour, BRIEF STATEMENT OF FACTS. Vide his Statement of Claim and Counterclaim, the Claimant is alleging that by an agreement reached between him and the Respondent culminating from negotiations which were made regarding the package design, artwork, specifications, timelines and the pricing of the project, a mistake was made on the orientation which resulted to wrong measurements on the paper wrappers for the “Wandies Sugar", a brand ran by the Claimant. The bone of contention in the matter herein is the culmination of the wrong orientation used in the cylinders, which orientation was developed and printing done on the permission of the Claimant. The Respondent states that no printing is done before a trial is run and before a client consents, noting satisfaction with the artwork, design, colour and measurements by the client comes first. ISSUES FOR DETERMINATION From the rival pleadings filed by the parties, the following issues arise for determination; a) Whether there was any breach of contract on the part of the Respondent in building the design orientation ANALYSIS OF ISSUES Whether there was any breach of contract on the part of the Respondent in building the design orientation Your honour, the Claimant and the Respondent entered into an agreement for the design of the artwork and production of packing materials for the "wandies sugar" brand. The Respondent proceeded and notified the Claimant of the standard operating procedures (SOP) for client awareness and the requirements for the project. The Respondent shared the details with the Claimant before any printing works could commence. On the * June,*, the Claimant visited the offices of the Respondent to check the work progress of the artwork and designs which were still soft copy, to enable any changes should the Claimant want to change his mind. The same was done in the presence of the Claimant.The Claimant made this admission at paragraph * of his witness statement and orally in court during cross examination. Your honour, on the * June, *, the sales manager at the Respondent sent the artwork and the design to the Claimant for approval. The Claimant vide an email correspondence on the * August, * approved the artwork and the same has been corroborated by the Claimant at page * of Claimant's List of Documents and Exhibit * coded at "Manipal *"of the Respondent's List of Documents). The approved artwork bear information regarding the artwork itself, the colour,size,SM number and the size of the IMAC (where the machine reads where to cut). These specifications was done and the final work was shared with the Claimant, who then signed and we proceeded to produce the cylinders. At the point the Claimant approved the chromalin,consent to re-engrave the cylinders had been sought and by his own approval, the Claimant gave the Respondent the green light to go ahead and do the printing. CLAIMANT'S ADMISSIONS DURING TRIAL Your honour, parties to a contract are bound by the terms of a contract once they both agree to be bound. The Claimant having approved the chromalin (Exhibit * of Respondent's Documents) which carried all the printing specifications, transferred the duty to the Respondent. The Respondent was under a legal obligation to print whatever had been approved by the Claimant. In Pius Kimaiyo Langat v Co-operative Bank of Kenya Ltd [*] eKLR, after reviewing case law on the subject reiterated they that it was "alive to the hallowved legal maxim that il is not the business of Courts to rewrite contracts between parties as the said parties were bound by the terms of their contracts, unless coercion, Fraud or undue influenice are pleaded and proved." Your honour, the Claimant made an admission at paragraph * as follows;- "That the Respondent's designing department took the measurements and started working on the designs and also assisted with the sampling of the paper to be used for packing wandies sugar and sent me the sample which I approved". The Claimant admits in his witness statement at paragraph * as follows; "That the Respondent's sales manager forwarded a sample of the packing paper to me which I took to KEBS for approval, after which I gae a go ahead on printing" These admissions have been made both in the witness statement and in open court and as such, the Claimant cannot purport to say that the mistake leading to the printing of wrong orientation was from the Respondent. The Respondent indeed before carrying out this exercise, took the Claimant through this exercise for awareness and even conducted trials, which the Claimant approved willingly and without coercion. In the case of Savings & Loan (K) Limited v Kanyenje Karangaita Gakombe & Another (supra) the Court rendered itself thus: "In its classical rendering, the doctrine of privity of contract postulates that a contract cannot confer rights or impose obligations on any person other than the parties to the contract". We submit that the decision leading to the wrong orientation on the cylinders was an omission on the part of the Claimant as all printing details were shared with the Claimant and approved accordingly by him, allowing the Respondent to fulfil his legal obligation of printing the design. CONCLUSION We humbly submit that all parties fulfilled their obligations to the contract.The Respondent having made the Claimant aware of the technical process, availed the relevant apparatus and made trials before the printing begun, was only but a party performing his end of obligations in the contract. The result leading to the production of a wrong orientation and the machine not aligning to the material delivered was not the Respondent's fault but that of the Claimant. As such, we humbly pray that the Claimant's claim be dismissed with costs and the Respondent's counterclaim be allowed. WAUNA&COMPANYLLP ADVOCATES FOR THE RESPONDENT DRAWN AND FILED BY: WASUNA & CO. ADVOCATES K.P OFFICES,APARTMENT * NEXT TO KIVI MILIMANI JAKAYA KIKWETE ROAD P.O BOX *-*, NAIROBI. wasuna1wasuna@gmail.com TO BE SERVED UPON MARTIN WANDIE KIBUGI T/A NYUMBANI SUGAR LIMITED P.O.BOX *-* KIAMBU.nyumbanisugar@yahoo.com KENYA LAW Whese Legal Informaticn is Pubic Kacwldge IN THE COURT OF APPEAL AT NAIROBI (CORAM:WAKI,MAKHANDIA & OUKO,JJ.A) CIVIL APPEAL NO. * OF * BETWEEN PIUS KIMAIYO LANGAT APPELLANT AND THE CO-OPERATIVE BANK OF KENYA LIMITED RESPONDENT (An appeal from the Judgment of the High Court of Kenya at Milimani, Nairobi (J. M. Mutava, J) dated 4th October, * in Civil Case No. * of *) JUDGMENT OF THE COURT *.There is a perennial vexing nightmare for borrowers who take a relatively small loan from a lending institution, but a few years down the line, the institution drops a bombshell of a demand for the immediate payment of a colossal sum, literally bankrupting the borrower,if not confining him/her to a hospital bed due to depression. The main bones of contention are invariably: uncertainty of lending terms and documentation, fluctuating rates of interest, penalty interest, default charges, interest on arrears,additional interest,commissions, bank charges, bank statements or lack of them, among others which may or may not have been part of the written contract. Take this case. *.The appellant,Pius Kimaiyo Langat (Langat) was said to have borrowed Sh. *,* in * but in * the amount had ballooned to Sh. *.* million, rose further to Sh. *.* million in * and continued to rise after the Judgment of the High Court in *.The respondent,Co-operative Bank of Kenya Ltd (the bank) was the lender. Its original claim filed on 15th September, * was simply stated in three paragraphs, asserting that on 25th August, * it gave a credit facility of Sh. *,* (Sh. *,* in overdraft and Sh.*,* in term loan) to Langat. Due to his default in payments, the amount rose to Sh.*,*,* as at 25th March,* which amount the bank sought to recover with interest thereon at *%p.a until payment in full. The summons to enter appearance seems to have beon issued on 16th December,*, which wouId take it beyond its one year validity, hence acceptance of service by Langat under protest.