By Sam Alfan.
Pride Inn has suffered after failing to overturn a Sh2 million award granted to a firm it had entered agreement to operate alcoholic beverages business with its hotels in Nairobi.
Court of Appeal Judges Wanjiru Karanja, Kathurima Inoti and and Lydia Achode dismissed appeal lodged by the hotel.
Pride Inn had challenged the Sh2,104,770 awarded to Thatchmaanz limited for breach of contract.
“Consequently, upon re-evaluating the evidence afresh we find no merit in this appeal. We uphold the trial court’s judgment and dismiss the appeal,” ruled the appellate court.
The appellate Judges further ruled that the evidence showed that Thatchmaanz ltd duly fulfilled its obligation of supplying alcoholic beverages, while Pride Inn failed to honor its payment obligations.
Thatchmaanz ltd availed copies of unpaid invoices to the court, which showed unpaid invoices totaled to Sh. 2,104,770.
“We therefore find that Thatchmaanz ltd not only pleaded special damages but also strictly proved them,” said the court.
Regarding the third-party notice, the court said it is in evidence that Pride Inn sought for leave to apply to serve the third-party notice upon Pride Inn Managing director Anthony Ngunga by substituted service.
“There is no evidence that such and application was made or, that such service was effected on MD Ngunga. There is no evidence that third-party proceedings were prosecuted in the trial court. Nothing therefore, turns on this ground fails,” rules the appellate court.
The hotel challenged the High Court decision arguing that the judge erred law and fact by holding that there was a contract between the parties for the supply of alcoholic beverages.
The Hotel argued that by holding that Thatchmaanz ltd had supplied alcoholic beverages to the appellant or the hotel’s customers with no evidence thereto, which finding was untenable.
“By failing to apply the legal maxim of ex turpi cause no ortur thereby enforcing an alleged contract that was illegal ab initio which decision is against public policy,” claimed Pride Inn.
According to Pride Inn, by entering judgment against Thatchmaanz ltd for a sum of Sh. 2, 104,770 as a special damage which said sum was not specifically proved as required by law.
“By failing to enter judgement against the third party Anthony Ngunga pursuant to Order 1 Rule 15 of Civil Procedure Rules,” claimed the hotel.
Further the hotel argued by rendering a judgment that was wholly erroneous and manifestly unjust for failure to analyze the evidence on record and consequently arriving at a finding not supported by evidence.
