https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1663

Al Husnain Motors Ltd v Michira (Civil Appeal E152 of 2021) [2026] KECA 1663 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1663 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Civil Appeal E152 of 2021 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA July 31, 2026 Between Al Husnain Motors Ltd Appellant and Joseph Matagaro Michira Respondent (Being an appeal from the Judgment and decree of the High Court of Kenya at Busia (Kiarie, J.) dated 27th January, 2021inHCCA No. 21 of 2018) Judgment 1.The dispute between the parties arose following an alleged breach of a motor vehicle sale agreement dated 11th November, 2013, signed between the respondent (Joseph Matagaro Michira) and the appellant (Al Husnain Motors Ltd). The respondent purchased motor vehicle registration KBX 648D, an Isuzu Lorry, from the appellant for Kshs. 4 million. He paid a deposit of Kshs. 2.1 million and was to pay the balance in monthly instalments. However, the said motor vehicle broke down soon thereafter. Consequently, the respondent filed Busia CMCCC No. 435 of 2015 - Joshua Matagaro Michira vs. Al-Husnain Motors Ltd, praying for a permanent injunction restraining the appellant, its agents, workers and or servants from attaching, repossessing, recovering or in any way interfering with the said motor vehicle. He also asked the court to order the appellant to provide him with an alternative vehicle, or refund him Kshs. 2,381,000/= on account of his part payment of the vehicle’s purchase price, and for costs of the suit. 2.In the amended plaint dated 2nd February, 2017, the respondent herein stated that he purchased the said motor vehicle from the appellant on or about 11th November, 2013, paid a deposit towards it and took possession of the vehicle. That he had bought the vehicle as a commercial vehicle and expected the proceeds from its operations would be used to clear the balance of the purchase price through payment of monthly instalments. He noted that the sale agreement provided that any major repairs or alterations would only be done subject to the appellant’s permission. He asserted that the said vehicle had since become defective and that the appellant had repossessed it without offering to refund the purchase price and in breach of the contract between them. Further, in a reply dated 5th February, 2016, the respondent denied that the vehicle’s defect was due to his carelessness and disputed the particulars of breach of contract on his part. 3.The respondent (PW1) testified that the vehicle functioned in December 2013 and January 2014 before it developed a mechanical problem. That he engaged the appellant in February 2014 to carry out repairs of the vehicle as per clause 9 of the sale agreement, and delivered the vehicle on 12th March, 2014. That on 6th April, 2014, the appellant sent him a mechanic who reported that the vehicle’s engine had ‘knocked’ and that he could not repair it. That the mechanic returned on 3rd August, 2014 and fixed the vehicle using the vehicle’s computer system, but the vehicle operated only for two weeks. The respondent stated that the vehicle had not worked since then and that the appellant breached the contract by selling to him a defective vehicle. He noted that he had also requested an agent of the appellant for an alternative motor vehicle. He confirmed to the court that the appellant had not repossessed the subject vehicle. 4.In response, the appellant filed the statement of defence dated 29th January, 2016, denying the allegations of breach of contract attributed to it. The appellant pleaded that the vehicle had become defective due to the respondent’s carelessness, and that the respondent had failed to pay monthly instalments as per the sale agreement. Further, the respondent had also failed to avail the vehicle for inspection by the appellant for purposes of verifying its state and condition. The appellant prayed that the suit be dismissed with costs. In evidence, Alfred Kaya (DW1) asserted that it was the respondent’s duty to inform or request the appellant to carry out major repairs, and that the respondent had attempted to repair the vehicle contrary to the agreement. He stated that even if the vehicle was faulty, the appellant did not ordinarily refund the purchase price or part thereof. 5.The trial court (Hon. M.A. Odhiambo, RM) delivered judgment in the matter on 23rd November, 2018. While finding that the respondent did not breach the contract, the trial court observed that the vehicle’s breakdown and the appellant’s failure to repair it in good time resulted in the respondent’s default in payments. That the respondent provided evidence of having notified the appellant that the vehicle had developed a mechanical problem. That it was therefore the appellant that breached the contract by failing to deal with the major mechanical problem upon being notified. The trial court further found that it was difficult for the respondent to perform the contract because the appellant’s failure to repair the vehicle for four years frustrated the contract. That the effect of applying the doctrine of frustration is to terminate the contract and revert the parties to the position they occupied before signing the agreement. The trial court thus ordered the appellant to refund the respondent Kshs. 2,381,000/- within 90 days, and for the respondent to give back possession of the said vehicle to the appellant after 90 days. Any balance that the appellant would not have paid the respondent on the 90th day would accrue interest at the court rates until payment in full. The respondent was also granted costs. 6.Dissatisfied with the decision of the trial court, the appellant filed an appeal in the High Court of Kenya at Busia. The first appellate court (Kiarie, J.) observed that when the appellant denied that the contract existed and then conceded during the hearing, it painted a picture of untrustworthiness. The High Court noted that the appellant had implied in its evidence that major repairs to the subject motor vehicle were to be made by written consent, yet clause 9 of the agreement did not provide for a written notice. The first appellate court held that the trial court’s evaluation of the evidence could not be faulted, as it was alive to the parties’ duties under the contract. Therefore, the appeal was dismissed with costs for lacking merit. 7.The appellant is aggrieved with the judgment and decree of the High Court and has preferred an appeal to this Court. The memorandum of appeal dated 9th August, 2021 sets out four (4) grounds of appeal that are reproduced verbatim as follows:1.That the learned judge erred in law and in fact by failing to properly analyze the evidence and exhibits presented before court and therefore coming to a wrong determination which is not backed by evidence on record.2.That the learned judge erred in law and in fact by failing to take into account the evidence of the respondent and appellant on the Sale Agreement which showed outright bias against the appellant.3.That the judgment was against the evidence presented before the court.4.That the learned judge failed to analyze the evidence and submissions before him and therefore arriving at a wrong decision as required in law. 8.The appellant prays that the appeal be allowed, that judgment and decree of the high court made on 27th January, 2021 be set aside and that the appellant be awarded costs of this appeal and costs of the appeal in the high court. 9.In the written submissions dated 10th June, 2025, counsel for the appellant narrowed the issues for determination to: whether the judgment by the high court was backed by evidence; and who bears the costs of the appeal. On the first issue, counsel urged that the High Court disregarded its obligation as a first appellate court to reconsider and reevaluate the evidence tendered in the trial court by rendering a determination that offended the rules of evidence. He cited the case of Kuria Kiarie & 2 others v Sammy Magera [2018] eKLR, in which the court held that the duty of the first appellate court is to analyze and re-evaluate the evidence tendered in the trial court, and refer to the findings of fact of the trial court unless it is shown that the trial court’s findings were made without evidence. He further cited the case of Selle & another v Associated Motor Boat Co. Ltd & others (1968) EA 123, in which the Court of Appeal held that the first appellate court has to reconsider, evaluate and assess the evidence tendered before the trial court and make its own conclusions in the matter. 10.Subsequently, counsel for the appellant argued that the respondent’s failure to pay his instalments contrary to the sale agreement was a breach of contract on his part. He asserted that the High Court was wrongly influenced by the forensic report for cellphone short messages, yet the report failed to indicate the exact owners of the phone numbers used. Counsel contended that it was the respondent who got his mechanic to repair the motor vehicle in breach of the contract. That the first appellate court inferred a presumption that the appellant sent a mechanic to repair the said vehicle without critically considering the piece of evidence relied on. He maintained that the findings of the High Court were therefore not backed by any evidence and ought to be set aside. 11.As to who bears the costs of the appeal, counsel for the appellant submitted that the general rule is that costs follow the event. That having proved that the High Court erred in failing to weigh the appellant’s evidence on record against the respondent’s case and thus arrived at a wrong determination, this Court should grant costs at both the High Court and the Court of Appeal. 12.The respondent’s submissions dated 26th November, 2025 are to the effect that the instant appeal is wanting both in form and in substance and ought to be dismissed. He submitted that there was no proper notice of appeal on record, as the one before the court was defective for indicating the appeal was against a decision made on 2nd January, 2021. That from the record of appeal, no formal notice of appeal had been filed against the decision of the court in HCCA No. 21 of 2018, delivered on 27th January, 2021. He urged that such a defect was noted by this Court in Shakhalaga K Jirongo v Trust Bank Limited [2000] KECA 348 (KLR), in which the appellant had to amend the date quoted on the notice of appeal as the defect could not sustain the appeal. The respondent further asserted that it is trite law that parties are bound by their pleadings. That the format of pleadings cannot be said to be a procedural technicality because it goes to the root of the dispute, as observed by the court in Siasa Pashua & 2 others v Mbaruk Khamis Mohamed & another [2012] eKLR. In the alternative, the respondent urged this Court to find that the first appellate court applied the correct legal principles in its determination. 13.The respondent further submitted that the appeal lacks merit because the ground that the High Court erred in failing to find that the respondent was in breach of contract was a fact that should have been pleaded before the trial court for its consideration and by the first appellate court. That the issue was also not canvassed in the appellant’s submissions before the High Court. He argued that the High Court’s analysis of evidence and exhibits is a matter of fact and cannot be the subject of a second appeal. 14.When this appeal came up for hearing before us on 19th May, 2026, learned counsel Mr. Yogo appeared for the appellant. There was no appearance from the respondent despite being served with the hearing notice on 3rd May, 2026. Mr Yogo relied on the appellant’s written submissions and highlighted as follows. First, that the learned Judge held that the appellant having denied at paragraph 3 of the defence that parties were in a contract of sale of the motor vehicle as was alleged for the respondent, the appellant was thereby bound by that pleading and could not be allowed to urge that the respondent was in breach of clause 9 of the contract. Counsel submitted that nevertheless, the respondent had admitted in his testimony that he was in breach of the agreement between the parties. Counsel did not highlight the details of the admitted breach, as was alleged in his submissions in that respect, but added that the agreement was self-enforcing in event of a breach. Second, counsel highlighted that the learned Judge failed to look at the pleadings and the relevance of the respondent’s evidence that he notified the appellant about the defects in the subject motor vehicle through cellphone text messages whose logs were produced as exhibits. 15.We have considered the memorandum of appeal and the parties’ respective submissions. The preliminary issue for determination is whether stating the incorrect date of the impugned decision in the notice of appeal rendered it fatally or incurably defective. The substantive issues for determination are whether the judgment by the high court was backed by evidence; and, who bears the costs of the appeal. 16.We have perused the record. The judgment of the High Court appealed against was dated and delivered on 27th January, 2021. However, at variance with that fact, the notice of appeal dated 1st February, 2021 shows that the appellant is dissatisfied with judgment delivered on 2nd January, 2021 and intends to appeal against the said judgment. The submission made for the respondent is that the error is in the nature of a pleading and therefore substantive and not merely procedural. It was urged that no formal notice of appeal had therefore been filed against the decision of the court in HCCA No. 21 of 2018, delivered on 27th January, 2021. For the appellant, no specific submission was made to address the concern raised for the respondent. 17.It is our view that a notice of appeal is an anchor document upon which the jurisdiction of this Court is founded and flows from. However, stating the incorrect date of the impugned decision in a notice of appeal generally does not amount to absence of a notice of appeal as to render the appeal fatally or incurably defective. We consider that such an error will generally not fundamentally deprive this Court of jurisdiction to hear the dispute unless it is established that such an error was prejudicial as to occasion manifest injustice as where by reason of the error it may as well be deemed that the notice of appeal was as good as absent. 18.We have considered the manner the respondent has raised the issue in the final submissions to the appeal and which we find amounted to an ambush as was contrary to the procedure prescribed in the rules of this Court. Rule 86 of this Court’s rules states as follows;“86.Application to strike out notice of appeal or appeal A person affected by an appeal may, at any time, either before or after the institution of the appeal, apply to the Court to strike out the notice or the appeal, as the case may be, on the ground—a.that no appeal lies; or,b.that some essential step in the proceedings has not been taken or has not been taken within the prescribed time:Provided that an application to strike out a notice of appeal or an appeal shall not be brought after the expiry of thirty days after the date of service of the notice of appeal or record of appeal, as the case may be.” 19.The respondent having not applied to strike out the notice of appeal or the appeal, he is barred from raising it now. We are satisfied that the parties were not misled by the error and the respondent has indeed filed submissions on the merits of the appeal with no ambiguity that the decision appealed against is the one delivered on 27th January, 2021 in the dispute between the parties. The title to the record of appeal and the memorandum of appeal refer to the correct decision as dated and delivered on 27th January, 2021. The respondent being not prejudiced, we will treat the error as clerical or typographical as overridden by the substance of the appeal as envisaged in the overriding objectives in Article 159 of the Constitution and section 3A and 3B of the Appellate Jurisdiction Act. 20.In taking a path upholding the application of the overriding objectives as we have done in the instant appeal, this Court in Odera t/a AJ Odera & Associates v Machira t/a Machira & Co Advocates [2013] KECA 208 (KLR) took an emphatic position which we consider to aptly apply in the instant situation as follows;“23.On the basis of the above assessment of principles of case law, we find it perfectly in order to invoke these principles and apply them to the rival arguments herein to breathe life into this appeal, for purposes of ameliorating the harshness of the consequences of the appellants’ non- compliance with this court’s directive in the ruling of 20th April, 2000 and 24th May, 2002, with regard to the appellants failure to cure the defect in the notice of appeal on the basis of which the appeal is premised and secondly excuse the appellants failure to include the memorandum of appearance, a primary document in the record of appeal.24.Our reasons for finding so, are that case law interpreting application of the overriding objective principles to appellate litigation, illustrated above tend to indicate clearly that these were applied in proceedings filed before sections 3A and 3B (Supra) came into force. On this footing they are applicable to this litigation not withstanding that this appeal was filed long before the said sections 3A and 3B (Supra) came into effect. A ruling in favour of sustaining the appeal will therefore be in line with the overriding objective principle because if the appeal is struck out on account of incompetence, the striking out order will not finally determine the issues in controversy as between the parties. It will simply restore the parties to the pre-appeal stage before the alleged offending notice of appeal was filed. The net effect of this restoration will be that the appellant will be at liberty to reinitiate the appellate process a fresh, premised on a form D compliant notice of appeal. Such an action is likely to lead to a delay in the disposal of the real issues in controversy as between the appellant and the respondent. There will also be considerable costs to be borne by both parties both for these proceedings and the proceedings to be reinitiated. This will also result in the clogging of the justice system as the reinitiated appeal will have to be re- presented to this same Court based on the same set of facts and as soon as it is presented it will start competing for time for disposal.” 21.The second issue for determination is whether the judgment by the superior court was backed by evidence. In deciding the issue, we are guided by the principle that while first appeals require a review of evidence, second appeals like the present one must focus exclusively on points of law, resisting the urge to re- evaluate facts. 22.In Mwita v Woodventure (K) Limited & another (Civil Appeal 58 of 2017) [2022] KECA 628 (KLR) (8 July 2022) (Judgment), the Court of Appeal stated as follows;“This is a second appeal. Accordingly, the jurisdiction of this Court is limited to consideration of matters of law. As was held in the case of Stanley N. Muriithi & Another v Bernard Munene Ithiga [2016] eKLR, on a second appeal, the Court confines itself to matters of law only, unless it is shown that the court below considered matters it should not have considered,or failed to consider matters it should have considered, or looking at the entire decision, it is perverse. See also Kenya Breweries Limited v Godfrey Odoyo [2010] eKLR in which it was held that: “In a second appeal however, such as this one before us, we have to resist the temptation of delving into matters of facts. This Court, on second appeal, confines itself to matters of law unless it is shown that the two courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse.” 23.A point of law relates to interpretation and application of law while a point of fact relates to application of evidence. In the present appeal the concurrent finding of the trial court and the High Court was that as a matter of fact as based on evidence on record, the appellant breached clause 9 of the sale agreement and which stated as follows;“The buyer shall during the continuance of this Sale Agreement will at his/her own expenses keep the said motor vehicle in good repair and good working condition (reasonable wear and tear excepted) and will not make any major alterations in or addition to the said motor vehicle without the consent of the seller. If the buyer makes a major alteration to the detriment of the motor vehicle the seller shall have the right of possession without prior notice.” 24.The further concurrent finding of fact based on the evidence on record by the two courts below was that the respondent notified the appellant about the defects to the motor vehicle. The respondent had notified the appellant through text messages and the logs of the same were produced as exhibits. We have re- examined the record and observed that the respondent did not admit in his testimony that he had breached the contract as was urged for the appellant. We have also observed that during the trial the appellant did not object to the production and admission of the forensic report for cellphone short messages and, on account that the report failed to indicate the exact owners of the phone numbers used, as counsel for the appellant has submitted before us. We reject the introduction of that objection belatedly in this second appeal. 25.We also hold that the learned Judge correctly reiterated the trite law that the appellant was bound by his pleadings that there was no agreement that had been entered by the parties so that the appellant could not thereby validly move evidence that the respondent was in breach of clause 9 of the agreement in the face of the pleaded denial of the existence of the contract. 26.The appellant has failed to show that the High Court applied the wrong principles of law, considered matters that ought not to have considered, failed to consider matters that ought to have considered, or, arrived at a decision that was perverse as based on no evidence at all. The appeal is therefore liable to dismissal with costs because it is trite that costs follow event. 27.In the premises, the appeal lacks merits and we hereby dismiss it with costs. DATED AND DELIVERED AT KISUMU THIS 31ST DAY OF JULY, 2026.ASIKE-MAKHANDIAJUDGE OF APPEAL.................................E. C. MWITAJUDGE OF APPEAL.................................B. ONGAYAJUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR