BY SAM ALFAN.
A judge has dismissed a Sh40 million claim against East African Breweries limited, brought by a transport and logistics firm, stating that the case was time-barred.
Justice Jacqueline Kamau dismissed the case by Express Kenya Limited saying that being an action under contract, the firm could not bring a claim after six years.
The Judge added that the firm was seeking to lay blame on the wrong part, after claiming that its advocates failed to file the case on time.
“There was negligence on the part of the applicant’s advocates. However, this was one instance where it could not seek refuge to be excused for mistakes of an advocate. It must look elsewhere for remedy,” the Judge said.
The firm sued EABL after its distribution contract was terminated in 2011 before the three year contract, expired. Documents filed in court showed that the two companies entered into the contract in 2009 but the beer maker terminated the deal on January 10, 2011. Then, the company demanded Sh10 million outstanding.
The transport company argued that whereas contractual matters has to be instituted within six years, there were exceptional circumstances under Section 27 of the Limitation of Actions Act where extension of filing suit could be given.
The firm submitted that it had all intentions of recovering the money and that it wrote a demand letter to EABL, which went unanswered. The court further heard that at some point in 2013, the firm was advised not to file the case as EABL was working out some logistics and would get back.
EABL on its part argued that actions based on contract cannot be brought six years after the cause of action. The court further heard that even with the consent of the parties, a court cannot extend the time for filing a suit based on contract.
In the judgment, Justice Kamau the letter by EABL was equivocal and did not expressly state that the beer company owed Express Kenya ltd, any money. “In fact there was nothing remotely close to indicating that the respondent owed the applicant any monies” the Judge said.