Heco Uberseehandel V Mac's Phermaceuticals Ltd eKLR
|Civil Case 581 of 1988
|20 Aug 1992
James Frank Shields
High Court at Nairobi (Milimani Law Courts)
Heco uberseehandel v Mac's Phermaceuticals Ltd
Heco uberseehandel v Mac's Phermaceuticals Ltd eKLR
Heco Uberseehandel v Mac’s Pharmaceuticals Ltd
High Court, at Nairobi August 20, 1992
Civil Case No 581 of 1988
Contract – where one refused to pay for goods alleging that was not what they contracted for- where one accepted the goods but found it difficult to resale them to 3rd party- whether one can be allowed to terminate contract on this basis.
The plaintiff, a German company operating in Hamburg sold a quantity of dextrose auhdrous to the defendant, a Kenyan company. The dextrose was to be pyrogen free B P grade, injectable and it was dispatched to the defendant in 3 consignment. Payment was to have been made for these consignments 120 days after the date of bills of lading.
The defendant refused to honor the bills of lading alleging that the goods were not those contracted for, that they were not of merchantable quality and that they were not fit for resale to the Ministry of Health.
The defendant further alleged that the material supplied was not pyrogen free because according to them, if a substance was not pyrogen free then it was not suitable for injection, though they alleged that it may safely be taken orally that the material was unsuitable and therefore did not conform to the goods contracted for.
The plaintiffs therefore brought an action against the defendant for refusing to honour the bills of lading and hence the payment for the consignment.
1. The complaint about the packaging was rectified and therefore the packaging was adequte and in accordance with the contract specifications.
2. The defendants failed on the balance of probability to show that the material supplied was not of the quality contracted to be supplied.
3. Neither of the letters sent by the defendants to the plaintiff amounted to rejection of shipments. In fact it was an affirmation by defendants that they had accepted the shipment but were having some difficulty in persuading the Ministry of Health to accept the defendant’s offer to sell the materials to the Ministry. The defendants are deemed to have accepted the goods under section 36 of the Sale of Goods Acts.
Judgment for the plaintiffs.
No cases referred to
Sale of Goods Act (cap 31) section 36
Abuga for the Plaintiff
Chaudrey and Chabeda for the Defendant