Lawyer, tailor to talk over suit case out of court

The city advocate who was pursuing a tailor over a burnt Italian suit now wants to settle the dispute out of court.

During a mention before Court Judge Janet Mulwo, Gatheru Gathemia said that he would be reaching out to Daniel Onyango to see whether a white smoke would appear in 14 days.

“Your ladyship we are requesting that this matter be mentioned in two weeks time as parties engage without prejudice basis an out of court settlement. We will come back to this court after two weeks for the court to authenticate whether the parties have come up with some kind of settlement,” Gathemia’s lawyer Patrick Ndambiri said.

Ndambiri said that his client and Onyango had decided to put the process of filing responses and submissions to pause for the talks.

Onyango’s lawyer Moses Sikuta in response to the application said his client was amenable to the discussions for settling the dispute.

“We have no objection to that,” replied Sikuta.

 Gatheru Gathemia sued Daniel Onyango claiming that he burnt his suit and agreed to pay Sh35,000 as compensation but failed to honour his promise.

Gathemia filed his case first before the small claims court arguing that after his Herr Widman suit was ruined, Onyango committed to pay him Sh3,000 every month until the amount was cleared.

However, the lower court’s magistrate, Carol Ndumia, dismissed Gathemia’s case. Aggrieved, Gathemia moved to the High Court.

In his appeal before High Court judge Janet Mulwa, the advocate said the small claims court failed to find that the tailor was negligent as the expensive suit should have been taken to the laundry for washing and ironing.

“The learned magistrate erred in law and in fact by failing to uphold that the damage occasioned to the claimant’s suit was by way of derelict ironing of the garment and the same was proof of gross and unmitigated negligence by the respondent as he was a tailor by profession not permitted by custom and tradition to iron clothes of a certain quality which ought to be taken to a suitable laundry for any washing or ironing,” argued Gathemia.

According to him, the suit was new.

“The resident magistrate failed to address her mind to the fact that the respondent admitted in evidence to having been negligent and destroying the claimant's newly purchased, valuable and expensive suit in the process,” continued Gathemia.

He asserted that Omondi owed him a duty of care as a skilled tailor and should be compelled to pay for the same.

In the case, Gathemia narrated that he took his grey suit to Onyango sometime in May 2021 for tailoring. The advocate stated that the tailor apologised and promised to buy him a new one and would pay Sh3,000 from the first week of July that year.

Gathemia attached the agreement indicating that Onyango had promised to fit the jacket and trousers at his own cost.

The advocate said he moved to court after the tailor reneged on his promise.

The agreement indicated that both parties had voluntarily signed it without coercion or threat.

Onyango urged the court to dismiss Gathemia’s appeal. He claimed the agreement was not consensual.

According to the tailor, the case was dismissed on merit by the lower court. He stated that it has caused him anxiety such that he cannot work.

“Appellant’s suit was dismissed on merit and the basis that he forced me and or subjected me under duress to sign the contract and which duress vitiated the said contract. The appellant has subjected me to untold emotional anguish. I have not been able to concentrate on my small-time tailoring work in the midst of the current economic turmoil,” replied Onyango.

Onyango is opposed to Gathemia calling any witness. According to Onyango, there was no indication before the lower court that the advocate had a witness.

Justice Mulwo said yesterday that the two should report about the talks on April 8, 2023. She said that if the two do not strike a deal, the court will hear the case on April 23.