Court Dismisses Sh6.8 Million Fuel Supply Claim Against Tunasco
He claimed Tunasco had made a partial payment of Sh3 million on July 10, 2018, leaving an outstanding balance of Sh6,810,626.50.
A Nairobi court has dismissed a Sh6.8 million claim filed by businessman Omar Salim Baslum against Tunasco Insaat Anonim Sirketi Co. Limited over alleged supplies of fuel and hydraulic oil. Photo:Court Hammer Bright.
By Robert Mutasi
A Nairobi court has dismissed a Sh6.8 million claim filed by businessman Omar Salim Baslum against Tunasco Insaat Anonim Sirketi Co. Limited over alleged supplies of fuel and hydraulic oil.
Milimani Commercial Magistrate Thomas Nzyoki ruled that Baslum had failed to demonstrate that Tunasco was contractually obligated to pay for the goods he claimed to have supplied.
Baslum had sought Sh6,810,626.50 from the company, together with interest and legal costs, arguing that Tunasco had purchased hydraulic oil, fuel and petrol from him between 2017 and 2018.
Court records showed that the alleged supplies were made between April 1, 2017, and October 29, 2018. Baslum presented invoices and delivery notes relating to goods valued at Sh9,810,626.50.
He claimed Tunasco had made a partial payment of Sh3 million on July 10, 2018, leaving an outstanding balance of Sh6,810,626.50.
Tunasco denied having conducted business with Baslum and rejected the alleged debt. The company maintained that it had no contractual obligation to pay the amount claimed and argued that the case was defective.
During the proceedings, Baslum’s son, Abdi Hakim Omar, testified on his father’s behalf under a power of attorney. He relied on invoices, order books and delivery notes as evidence in support of the claim.
The witness also argued that the company had acknowledged the outstanding debt in a letter dated 2021.
However, Magistrate Nzyoki dismissed that argument, finding that the letter did not constitute an admission of the alleged debt.
According to the court, the letter was a demand relating to alleged impropriety surrounding a tender for the construction of a Town Hall and did not amount to an acknowledgement of liability for the fuel and hydraulic oil allegedly supplied.
The magistrate also scrutinised the invoices, order books and delivery notes presented by Baslum and found that they did not sufficiently establish that the goods had been delivered to Tunasco or that ownership of the goods had passed to the company.
The court observed that properly received and acknowledged delivery notes could have provided evidence that the goods had been transferred from the seller to the buyer. However, the evidence presented in the case did not meet that threshold.
The court noted that the burden rested with Baslum to prove his claim on a balance of probabilities. This included demonstrating that Tunasco had received the goods and was consequently liable to pay for them.
While the magistrate acknowledged that a contract for the sale of goods may be written, oral or inferred from the conduct of the parties, he said the plaintiff was still required to establish that a contractual relationship existed between the two parties.
“In my considered view, P. Exhibit 4, the letter by the defendant dated 24th December 2021 to Marfa Construction Company Limited and Ali Shariff Abo is not an admission,” the magistrate ruled.
The court ultimately found that there was no privity of contract between Baslum and Tunasco and rejected the claim for payment.
“Thus, the plaintiff’s claim for the sum of Sh6,810,625 on account of sale of goods is unfounded and must fail,” Nzyoki said.
The magistrate further held that Tunasco could not be required to pay for goods whose delivery to the company had not been established.
The suit was consequently dismissed, with Tunasco awarded the costs of the proceedings.
Speaking after the ruling, Tunasco Director Talib Shariff said the company intends to pursue further legal action over what he described as commercial losses and reputational damage suffered during the 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,” Shariff said.
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