70% LIABILITY FOR FALSE AND MISLEADING ADVERTISEMENT
The High Court of Kenya has slapped Pannar Seed (K) Limited (a maize seed production company) with a 70% liability (close to Ksh.63,281,800) for misrepresentation and misleading advertisement.
This is after Pannar Seed (K) Limited represented in its website that the Pan 4m-19 maize seed variety takes 90-120 days to mature and acting on the said representation, Gogar Farm Limited purchased the said variety (Pan 4m-19) from Pannar Seed (K) Limited and planted from 2nd October, 2009 with the expectation that the crop would mature between 1st January and 1st February, 2010 allowing a further one month for the crop to dry out fully and for harvest from 1st February, to 1st to 1st March, 2010. However, contrary to Gogar Farm Limited’s expectation, the crop took a period of 180 days to reach 20% moisture content and did not mature until after the onset of the rains in 2010 with disastrous results.
Prior to the above encounter, Gogar Farm Limited’s first crop of maize planted in the month of April 2009 failed due to drought and sometime in the month of July 2009 or thereabouts, it requested Pannar Seed (K) Limited to recommend and supply an early maturing maize variety suitable for its conditions for planting during the October 2009 rains.
That Pannar Seed (K) Limited through its managing director Mr. Craig Neilson represented to Gogar Farm Limited that a maize variety known as Pan 4m-19 which was a very quick variety and had good drought tolerance and perfect for Gogar Farm Limited’s farm as it would take 90-120 days to mature.
Upon purchasing and planting the said maize seeds variety, it did not work out as expected and as a result, Gogar Farm Limited sued for damages for false, untrue, recklessly and misleading representations.
While rendering its judgment in Gogar Farm Limited-Versus -Pannar Seed (K) Limited, the court observed as follows:
It is not disputed that the crop did not mature within 90-120 days but period to harvest extended to 180 days and rains made harvesting difficult and resulted in additional costs in harvesting and delay in planting for the season. There was information concerning the seed variety both on the defendant’s website and email communication between plaintiff and defendant; there is therefore confirmation that the contract of sale between the parties was principally a sale by description. Having found that the sale agreement between the parties was sale by description, under provisions of Section 15 of the Sale of Goods Act there is an implied condition that the goods shall correspond with description. The defendant was required to supply variety which fit in the description in the website and with performance as per request of 90-120 days to reach 20% moisture content. The Defendant is therefore liable for misrepresentation to the Plaintiff. The Plaintiff has proved that the Defendant misrepresented to the Plaintiff on suitability of seed variety Pan 4m – 19 for planting in October 2009. The Defendant is therefore liable for loss incurred by the plaintiff as a result of the said misrepresentation.
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