Wakilii

Kihika David v Daj Communication Limited (Civil Suit No. 0009 of 2011)

High Court · [2022] UGHC 266 · 2022 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for unpaid commission and breach of contract with counterclaim for loss
Decision
Judgment entered for the plaintiff; defendant ordered to pay unpaid commission, general damages, interest, and costs; counterclaim dismissed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the defendant owed the plaintiff unpaid commission of UGX 21,100,000. The plaintiff sold sim packs at UGX 800 pursuant to oral instructions from the defendant's managing director. The defendant was estopped from denying this price by permitting sales at that rate for three months without objection. Irregular deductions from the plaintiff's commission were not justified. The defendant failed to prove the plaintiff breached his contract. The counterclaim for UGX 75,900,000 was dismissed as the loss resulted from the defendant's poor management, not the plaintiff's unauthorised action. Special damages and general damages awarded to the plaintiff.

Outcome

Judgment entered for the plaintiff; defendant ordered to pay unpaid commission, general damages, interest, and costs; counterclaim dismissed

Facts

The plaintiff was employed as a sales executive by the defendant on 28 May 2007 and remunerated by commission on sim pack sales. In July 2010, the plaintiff received 31,000 sim packs from the defendant. He sold them at UGX 800 each and they were activated, earning him commission of UGX 34,100,000. Between October and December 2010, he was paid only UGX 13,000,000, leaving an outstanding balance of UGX 21,100,000. The defendant contended the plaintiff was mandated to sell the sim packs at UGX 3,000 and sold them at UGX 800 on his own volition, causing a loss of UGX 2,200 per sim pack, totaling UGX 75,900,000. The defendant deducted losses from the plaintiff's commission and issued a warning letter on 7 September 2010. The plaintiff testified he was orally instructed by the defendant's managing director to sell at UGX 800. The defendant continued issuing stock to the plaintiff for three months while sales were made at UGX 800.

Issues

  1. Whether the Defendant owes the Plaintiff any money in terms of commission for sim pack sales and connections for the month of July 2010.
  2. Whether the Plaintiff breached the terms of his engagement and whether he is liable to pay for the loss occasioned.
  3. What remedies are available to the parties.

Orders

  • Defendant pays the Plaintiff UGX 20,100,000 as special damages with interest at 17% per annum from date of cause of action until payment in full.
  • Defendant pays the Plaintiff UGX 1,000,000 as general damages with interest at 17% per annum from date of delivery of judgment until payment in full.
  • Defendant pays the Plaintiff costs of the suit.
  • Counterclaim dismissed.

Rules and key headnotes

Employment & Labour — Commission Sales — Payment of Commission — Employer's Duty to Pay Commission Earned
Where an employee earns commission on sales made pursuant to the employer's instructions, the employer is obliged to pay the full commission earned and cannot unilaterally make irregular deductions from commission without transparent justification.
Evidence — Estoppel — Estoppel by Conduct — Employer Permitting Employee to Act on Belief
Under section 114 of the Evidence Act, where an employer by conduct permits an employee to sell goods at a particular price for an extended period without objection, and continues to issue stock on that basis, the employer is estopped from later denying that the price was authorised.
Contract Law — Breach of Contract — Proof of Breach — Burden of Proof
A party alleging breach of contract bears the burden of proving on a balance of probabilities that the other party breached a specific term of the contract. Where the alleged term (a fixed selling price) is disputed and no written evidence of it exists, the party alleging breach must prove the term was communicated and binding.
Contract Law — Employment Contracts — Verbal Instructions — Authority to Vary Terms
Where an employment contract provides for variable commission rates and flexible pricing, and evidence establishes that pricing instructions were routinely given verbally by the employer's managing director, such oral instructions may bind the employer and vary operational terms of the engagement.
Commercial Law — Agency — Principal's Liability for Agent's Acts — Ostensible Authority
Where a principal's conduct leads third parties or the agent to reasonably believe the agent is authorised to act in a particular way, the principal may be bound by those acts even if no express authority was given, particularly where the principal fails to intervene despite knowledge of the agent's conduct.

Legislation cited (5)

Cases cited (3)

  • Namyalo Josephine v National Curriculum Development Centre (HCT 122 of 2008)
  • Robert Coussens v Attorney General (SCCA 08 of 1999)
  • Francis Butaqira v Deborah Mukasa (SCCA No. 6 of 1989)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Kihika David v Daj Communication Limited (Civil Suit No. 0009 of 2011) [2022] UGHC 266 (20 May 2022)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.