A wood products manufacturer has lost a bid to recover Sh35.8 million from logistics firm PN Mashru Ltd, after the High Court found it failed to prove that damage sustained by a thermal oil heater during transportation caused the equipment to malfunction.
The court held that although Comply Industries Ltd established that the heater fell from a crane while in the custody of the transporter, it did not produce sufficient technical evidence linking the accident to the heater’s inability to reach its designed operating temperature.
The court ruled that the company failed to demonstrate that the fall caused internal damage to the heater’s coils, pressure pipes and other components, resulting in the equipment reaching only between 150 and 180 degrees Celsius instead of the required 250 degrees Celsius.
“No independent engineering or metallurgical expert was called to explain how the external impact caused the coils, pressure pipes, and other internal components to fail in such a way that the maximum temperature dropped by approximately 70 to 100 degrees Celsius,” the judge said.
The court also noted that the Spanish manufacturer, Sugimat, did not send a representative to testify.
The court added that in the absence of expert evidence establishing a causal link between the physical damage and the heater’s reduced performance, it could only speculate.
The dispute arose after Comply Industries imported a new thermal oil heater from Spain at a cost of about Sh46 million. The equipment was insured under a marine cargo policy issued by Kenindia Assurance Company Ltd.
The manufacturer contracted PN Mashru Ltd to transport the heater by road from the Port of Mombasa to its factory in Nakuru.
Court records show that on May 12, 2006, the heater slipped from a crane and fell to the ground while being loaded at the transporter’s yard in Jomvu, Mombasa. Comply argued that the fall caused substantial damage, rendering the heater incapable of operating at its designed capacity.
The company said it was later compensated Sh34.7 million by Kenindia Assurance, which became subrogated to its rights to pursue recovery from the transporter.
PN Mashru denied liability, arguing that the manufacturer failed to inspect the equipment upon its arrival at the port and could not rule out pre-existing defects. It also maintained that any performance problems could have resulted from inherent defects unrelated to the accident.
During the trial, Comply director Nilesh Mehta testified that the heater was imported brand new and that delivery documents prepared by the transporter acknowledged it had been damaged after the fall.
He told the court that once assembled in Nakuru, the equipment could only attain about 160 degrees Celsius. He also said a proposal for local repairs was rejected after the manufacturer warned of the risks posed by operating a repaired heater at high temperatures.
A loss adjuster who investigated the incident confirmed that the heater fell while in the transporter’s custody and said the damage affected its heating capacity.
On its part, PN Mashru’s administrative manager, Francis Mulili, admitted witnessing the accident at the company’s Jomvu yard, where the equipment slipped from a crane during loading. However, he maintained that the visible damage appeared to be only a minor external dent and said he was not qualified to comment on the technical findings.
In dismissing the suit, the court also found that although the insurer had compensated Comply and was entitled to pursue recovery under the doctrine of subrogation, the right depended on proof that the transporter was legally responsible for the loss.
“In the circumstances, I find that the plaintiff failed to prove on a balance of probabilities that the fall was the proximate cause of the subsequent failure of the heater to attain the required temperature of 250 degrees Celsius and the consequential loss claimed,” the judge ruled.
