A firm linked to Kwale Sugar Company, Kotecha and Sons Ltd will pay a contractor Sh221 million, after the Court of Appeal threw out its case challenging a 2019 ruling by Justice Thrisper Cherere.
Kotecha, who sued alongside its director Hemal Kotecha, had moved to the Court of Appeal, arguing that Justice Cherere did not give them a fair trial in a case filed by Amalo and Company Ltd.
In the ruling, Court of Appeal Judges Hannah Okwengu, Hellen Omondi, and Joel Ngugi unanimously agreed that Kotecha’s failure to defend itself before the court when it was offered the opportunity was fatal.
They observed that the firm had been served with the court papers. They were of the view that Kotecha’s concern seemed to be the enormity of the claim and the fact that they had commissioned an audit.
However, the court noted that despite the claims about the amount, the alleged audit did not raise any issue regarding the transactions or supply of the goods by Amalo or Kotecha’s liability for the amount claimed.
“The appellants, having been served with summons to enter appearance, were given an opportunity to defend the claim against them by entering an appearance and filing a defence. Having failed to take any advantage of this opportunity without a plausible reason, the appellants cannot be heard to complain that they were denied a right to be heard,” the bench headed by Justice Owengu ruled.
In this case, Kotecha urged the appellate court to set aside the orders issued by the High Court. They also asked the second-highest court in the land to allow them to file a response in the case.
They claimed that the Judge failed to consider that the agreement with Amalo was vague and written in general terms. Kotecha’s lawyers argued that Justice Cherere erred by holding that Amalo’s case that the firm had agreed to pay up the money stood unchallenged.
Kotecha claimed that the judge also failed to find that Hemal could have committed to pay without the board’s authority. According to Kotecha’s lawyers, Prof Tom Ojienda and Company Advocates, the lower court did not give the firm an opportunity to interrogate the documents filed in court. The law firm argued that they gave an explanation why they had filed their documents late, but the same was thrown out.
In response, Amalo argued that Kotecha was not condemned unheard.
In its case filed on May 28, 2018, Amalo was seeking Sh260 million plus 21 per cent interest. It was aggrieved by Kotecha’s failure to honor its end of the bargain by paying for the goods and services supplied to it.
By Kamau Muthoni
