[2021] KEHC 9590 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUSIA

CIVIL APPEAL NO. 21 OF 2018

BETWEEN

AL HUSNAIN MOTORS LTD .................................................... APPELLANT

AND

JOSHUA MATAGARO MICHIRA ........................................... RESPONDENT

(Being an Appeal from the ruling and order in Busia Chief Magistrate’s Court Civil Case No.435 of 2015 by Hon. Maureen A. Odhiambo – Resident Magistrate).

JUDGMENT

1. Al Husnain Motors Ltd, the appellant herein was the defendant in Busia Chief Magistrate’s Court Civil Case No.435 of 2015. The Company was sued for an order of permanent injunction or in the alternative be ordered to refund a sum of Kshs.2, 381, 000/=. The claim was based on what the respondent claimed was a breach of contract after the motor vehicle he had purchased from the appellant had broken down and the appellant failed to effect repairs as agreed, in spite of the notice.

2. The learned trial magistrate allowed the claim and awarded the respondent Kshs.2, 381, 000/= in her judgment which was delivered on 23th November, 2018.

3. The appellant was dissatisfied with the decision and therefore, filed this appeal. She was represented by the firm of Otieno, Yogo Ojuro & Company Advocates. Four grounds of appeal were filed as follows:

a) That the learned trial magistrate erred in law and in fact by failing to find that the respondent was in breach of contract.

b) That the learned trial magistrate erred in law and in fact by failing to take into account the fact that the respondent had by his own evidence admitted trying to carry out major repairs to the motor vehicle in breach of clause 9 of the sale agreement.

c) That the learned trial magistrate erred in law and in fact by wrongly evaluating the evidence on record and hence coming to the wrong conclusion.

d) That the learned trial magistrate erred in law and in fact by failing to evaluate the duties of parties in the agreement signed between the parties.

e) That the learned trial magistrate erred in law and in fact by misinterpreting the exhibits tendered by the respondent.

4. The respondent was represented by the firm of Okeyo Ochiel & Company Advocates. The appeal was opposed. It was contended that the judgment was supported by the evidence and was in line with the prayers sought.

5. This Court is the first appellate court. I am aware of my duty to evaluate the entire evidence on record bearing in mind that I had no advantage of seeing the witnesses testify and watch their demeanor. I will be guided by the pronouncements in the case of Selle vs. Associated Motor Boat Co. Ltd. [1965] E.A. 123, where it was held that the first appellate court has to reconsider and evaluate the evidence that was tendered before the trial court, assess it and make its own conclusions in the matter.

6. The appellant’s case revolve around the issue as to whether the respondent was in breach of clause 9 of the agreement. In their pleading, the appellant contended that there was no agreement that had been entered by the parties herein. This is what was averred in paragraph 3 of the defence:

The defendant is a stranger to paragraph 3, 4 and 5 of the plaint that at all material times relevant to this suit, that the defendant entered into an agreement for sale of motor vehicle registration number KBX 648D with the plaintiff and puts the plaintiff to strict proof thereof.

It is trite law that parties are bound by their pleading. The Court of Appeal restated this position in the case of Independent Electoral and Boundaries Commission & another vs. Stephen Mutinda Mule & 3 others [2014] eKLR.The Court cited Judge Pius Aderemi J.S.C, with approval, in the case of Adetoun Oladeji (Nig) Ltd vs. Nigeria Breweries PlcS.C. 91/2002, where the judge expressed himself as follows:

“….it is now a very trite principle of law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded.”

7. The appellant cannot be heard to complain that the respondent was in breach of clause 9 of the contract.

8. At the time of the hearing the appellant conceded that indeed there was a contract between the parties. The appellant tended to amend clause 9 of the agreement. In the written statement which was adopted as evidence Kashif Riaz averred:

That it is true that as per clause 9 any major repairs to the M/V were to be done by written consent.

The relevant portion of clause 9 of the agreement reads:

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.

There was no requirement of a written notice in the agreement.

9. The respondent contended that he notified the appellant about the defects in the motor vehicle registration number KBX 648D. The learned trial magistrate agreed with him for he had notified the appellant through text messages. Logs of the same were produced as exhibits. She rightly held that it was the appellant who was in breach of contract by failing to effect the repairs once notice was given.

10. In my view another strong reason that militated against the appellant is the denial of the obvious; she denied the existence of the contract only to concede during the hearing. This painted a picture of untrustworthiness.

11. The evaluation of the evidence by the trial learned trial magistrate cannot be faulted. She was alive to the duties of the parties to the contract. This therefore means that the appeal lacks merit and the same is dismissed with costs.

DELIVEREDandSIGNEDatBUSIAthis27th day of January, 2021

KIARIE WAWERU KIARIE

JUDGE