Court dismisses Ksh.6.8 million fuel supply claim against Tunasco

• Chief Magistrate Thomas Nzyoki dismissed the suit after finding that Baslum failed to prove that the goods were delivered to Tunasco or that a contractual relationship existed between the parties.

The Milimani Commercial Court has dismissed a Ksh.6.8 million claim by businessman Omar Salim Baslum against Tunasco Insaat Anonim Sirketi Co. Limited over alleged supply of fuel, hydraulic oil and other petroleum products.

Chief Magistrate Thomas Nzyoki dismissed the suit after finding that Baslum failed to prove that the goods were delivered to Tunasco or that a contractual relationship existed between the parties.

Baslum had sued Tunasco seeking Ksh.6,810,626.50, claiming the company ordered hydraulic oil, diesel and petrol between April 2017 and October 2018.

According to his claim, the products were supplied through various deliveries and invoiced at Ksh.9,810,626.50. He said Tunasco subsequently paid Ksh.3 million on July 10, 2018, leaving an outstanding balance of Ksh.6,810,626.50.

Baslum also relied on a December 24, 2021 letter, which he argued amounted to an admission by Tunasco that the debt existed.

Tunasco, however, denied ever conducting business with Baslum and argued that the alleged debt did not exist.

The court found that the documents presented by Baslum did not establish that the goods were delivered to Tunasco.

“The documents entirely belonged to the plaintiff and did not bear evidence of delivered and transfer of property in the goods to the said defendant,” Nzyoki ruled.

The magistrate noted that properly received and acknowledged delivery notes would have provided sufficient evidence that ownership of the goods had passed from the seller to the buyer.

The court also rejected Baslum's argument that Tunasco's December 2021 letter amounted to an admission of the debt.

“In my considered view, P. Exhibit 4...is not an admission and the plaintiff's counsel submissions urging the court to find that the letter was an admission is misleading and unfounded,” Nzyoki said.

The magistrate further found that Baslum had failed to establish privity of contract with Tunasco.

Nzyoki noted that a claim for the price of goods requires proof that the goods were supplied and ownership transferred to the buyer for an agreed or reasonable price.

“I find and hold that there was no privity of contract between the plaintiff and the defendant,” he ruled.

The court consequently dismissed the suit and awarded costs to Tunasco.

Following the ruling, Tunasco said it intends to pursue damages and other lawful remedies against Baslum and Abdulhakim Omar over what it described as substantial commercial losses and reputational harm arising from the litigation.

The company said the dispute had affected business opportunities, commercial relationships and its standing with business partners.

“The court has dismissed the claim and awarded Tunasco its costs. We will now pursue Omar Salim Baslum and Abdulhakim Omar through the appropriate legal channels for the commercial losses and reputational damage the company says it suffered,” the company said.