A Nairobi court has dismissed a Sh6.8 million claim by businessman Omar Salim Baslum against Tunasco Insaat Anonim Sirketi Co. Limited over the alleged supply of fuel and hydraulic oil. Milimani Commercial Magistrate Thomas Nzyoki dismissed the suit after finding that Baslum had failed to prove that the defendant was contractually bound to pay for the goods he claimed to have supplied. Baslum had sued Tunasco seeking Sh6,810,626.50, together with costs and interest, claiming the company had ordered hydraulic oil, fuel and petrol from him on various dates between 2017 and 2018.
According to the judgment, the goods were supplied between April 1, 2017 and October 29, 2018, with invoices and delivery notes issued for goods valued at Sh9,810,626.50. He said the defendant partly settled the amount by paying Sh3 million on July 10, 2018, leaving an outstanding balance of Sh6,810,626.50. Tunasco, however, denied conducting business with Baslum and disputed the alleged debt. The company also argued that the suit was misconceived and defective, maintaining that it had no obligation to pay the amount claimed.
During the hearing, Baslum was represented by his son, Abdi Hakim Omar, who testified under a power of attorney granted by his father. The witness relied on invoices, order books and delivery notes produced in court to support the claim. He also maintained that the debt had been acknowledged in a letter dated 2021. However, Magistrate Nzyoki rejected the argument that the letter amounted to an admission of the debt.
The magistrate found that the letter was instead a demand concerning allegations of impropriety arising from a tender for construction of a Town Hall and did not amount to an acknowledgement of the alleged fuel debt. The court further examined the invoices, order books and delivery notes produced by Baslum but found that they did not establish that the goods had been delivered to Tunasco or that ownership of the goods had been transferred to the company.
The court said the plaintiff bore the burden of proving his claim on a balance of probabilities, including establishing that the defendant had received the goods and was liable to pay for them. It further held that although a contract for the sale of goods can be written, oral or inferred from the conduct of the parties, the plaintiff still had to establish the existence of such a contractual relationship.
The court subsequently found that there was no privity of contract between Baslum and Tunasco. “Thus, the plaintiff's claim for the sum of Sh6,810,625 on account of sale of goods is unfounded and must fail,” the magistrate said. The court concluded that Tunasco had no obligation to pay for goods that had not been proved to have been supplied to it and found that the company had been improperly sued.
The suit was consequently dismissed, with the court awarding Tunasco the costs of the case. Speaking after the judgment, Tunasco Director Talib Shariff said the company would pursue further legal action over losses and reputational harm it says it suffered during the prolonged dispute. “The court has dismissed the claim and awarded Tunasco its costs. We will now pursue appropriate legal channels for the commercial losses and reputational damage,” said Shariff.
Key points
- The court dismissed the claim due to lack of evidence of a contractual relationship between Baslum and Tunasco.
