KAMOCHA J: Applicant
is seeking an order in the following terms:-
“It is hereby ordered that:-
1.
the
agreement of sale between the applicant and the respondent be and is hereby
confirmed.
2.
the
respondent be and is hereby ordered to supply to the applicant 3 000 tonnes of
molasses within 4 days of this order being served on it, failing which the
respondent is ordered to pay to the applicant the value thereof as at the date
of judgment.
3.
the
respondent be and is hereby ordered to pay costs.”
The agreement of sale which the applicant sought to have
confirmed was vehemently disputed ab
initio. While the applicant averred
that it entered into an agreement of sale of 4 000 tonnes of molasses on 23
January 2009 the respondent contended that no valid agreement was entered
between the parties as one Ndowora, its financial planning manager, had no
authority to sale molasses. The deponent
to the opposing affidavit Mr Peter Mbozvi was the only one vested with such
authority. Upon being told
telephonically by Mr Wamambo representing the applicant that an agreement had
been entered with Ndowora purporting to represent the respondent – Mbozvi
allegedly made it clear that that agreement was void. He said it was void for two reasons:- (a)
because Ndowora had no authority to do that; and (b) most importantly the
molasses was not available. Mr Mbozvi
alleged that Mr Wamambo was aware of that at all material times as he had
previously explained to him that what was available was for existing customers
who had standing quotas in terms of which the respondent was obliged to deliver
certain agreed quantities to such customers per season. The respondent's contention was that the only
valid agreement the parties concluded related to the 1 000 tonnes of molasses
which was paid for and delivered to applicant.
The respondent alleged that the applicant accepted the 1 000 tonnes
without demur but the applicant disputes that.
In the light of such material
disputes of fact it is not possible to establish on the papers filed whether or
not there was any valid agreement of sale in relation of the sale of 3 000
tonnes of molasses.
Similarly it is not possible for
this court to award damages, which were not proved, to the applicant. The applicant claims in the alternative, the
current value of 3 000 tonnes of molasses without leading evidence to support
such claim. It was suggested in argument
that such proof can be supplied to the court at a later stage. That is simply untenable.
In the light of the foregoing the
application must fail and is hereby dismissed with costs.
Calderwood, Bryce Hendrie & Partners applicant's legal practitioners
Scanlen & Holderness
respondent's legal practitioners
