https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8291

Canon Motors Limited v Owenga (Commercial Appeal E002 of 2025) [2026] KEHC 8291 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KEHC 8291 (KLR) Republic of Kenya In the High Court at Siaya Commercial Appeal E002 of 2025 DK Kemei, J June 12, 2026 Between Canon Motors Limited Appellant and Judith Adhiambo Owenga Respondent (Being an appeal from the judgement and resultant decree of the Small Claims Court at Siaya (Hon J.P Mkala (RM)) dated 30th September 2025 in Siaya SCCOMM No. E256 of 2025) Judgment 1.The Appeal arises from the Judgment of the Hon. J. P. Mkala (RM) delivered on 30th September,2025 at Siaya in SCCCOM E256/2025 wherein he entered judgement for the Respondent in the sum of Kshs 653, 308/ as special damages plus Kshs 50,000/ as general damages and Kshs 40, 000/ as costs of the suit which were ordered to attract interest at court rates from the date of judgement. 2.The Appellant was aggrieved by the said judgement and duly filed its Memorandum of Appeal dated 28/10/2025 wherein it raised the following grounds of appeal:i)The learned adjudicator erred in law in finding the Appellant liable on a contract that it was not privy to.ii)The learned adjudicator erred in law in finding that the Appellant had breached a contractual duty as to merchantability of [subject matter/vehicle].iii)The learned adjudicator erred in law in awarding special damages which had not been strictly proven.iv)The learned adjudicator erred in law in awarding general damages.The Appellant therefore prayed that the appeal be allowed and that the judgement delivered on 30/9/2025 be set aside and substituted with an order dismissing the suit with costs. That the costs of the appeal be awarded. 3.This being the first appellate Court, its duty is well spelt out namely to re-evaluate the evidence tendered before the trial court and/or arrive at its own independent conclusion. The Court will also have to take into account the fact that it did not see or hear the witnesses as they testified and to make due allowance for the same. See Selle vs associated Motor Boat Co. Ltd (1968) E. A 123. 4.The brief facts of the dispute were that on or about 5/8/2025 the Respondent claimed for compensation of Kshs. 653,308/- from the Appellant. She claims that she had entered into a motor vehicle sale agreement with the Appellant on 6/2/2025. That she paid the purchase price into the Appellant’s account. That on 20/2/2025 the motor vehicle developed some mechanical problems which forced her to repair it at the cost of Kshs. 129,688. Further, as she drove the said motor vehicle in April 2025, it stopped in the middle of the road and that she had to call for breakdown services and it was towed to a garage and upon diagnosis, it was determined that the gear box was faulty as it had been tampered with and needed to be changed. She claims to have informed the Appellant through their manager. That she was forced to hire taxis for her movements thus incurring further costs.On cross-examination, she stated inter alia; that she signed the agreement voluntarily; that she was satisfied with the condition of the vehicle on the face of it; that she complained about the motor vehicle problems; that she did not go with a mechanic; that she was not a mechanic and could not tell the mechanical defects of a motor vehicle by looking at it; that she made payments to the Appellant. 5.The Respondent called Lawrence Otieno Owade (PW2) who adopted his statement dated 4/8/2025 as his evidence in chief the summary of which was inter alia; that he acted as a witness to the purchase agreement; that the vehicle developed engine problems after only two months and that they took it to some garage where it was diagnosed and established that the gear box was faulty; that the Appellant’s agents refused to take responsibility for repair costs; that the Respondent was forced to buy a new gearbox and that they now seek to be reimbursed all the expenses. He was not cross-examined by the Appellant. 6.The Appellant did not call a witness but relied on its response to the Respondent’s claim. The Appellant on the other hand deny selling the said motor vehicle to the Respondent. They claimed that Shakil Salim Gohil sold Mv Reg. No. KDN 444J to the Respondent on the terms of the Sale Agreement dated 6th February 2025 and that they merely received the money on his behalf but that they were not a party to the sale agreement.That the Respondent inspected the vehicle and was satisfied with its condition before paying the purchase price. That the alleged subsequent mechanical problems were not known to Shakil Salim Gohil or the Appellant and were risks that the Respondent contractually assumed. Furthermore, that neither Shakil Salim Gohil nor the Appellant can be blamed for mechanical problems which only arose two (2) months after the sale. That the mechanical problems, if at all, may have been because of the Respondent‘s use of the vehicle. 7.The appeal was canvassed by way of written submissions. However, it is only the Respondent who complied. 8.The Respondent submitted that the present appeal is misconceived and lacks merit as the Appellant seeks to challenge a judgment arising from proceedings which they never brought forward any witness for their case nor recorded their witness statements. The Respondent raised the following issues for determination: Whether the Appellant, can Challenge the trial courts findings having failed to adduce evidence rebutting the Respondent claim. Whether the Respondent proved her claim before the trial court on a balance of probabilities. Whether this Honorable Court should interfere with the decision of the Small Claims Court. 3.Whether the appellant can challenge the trial court's findings having failed to adduce evidence rebutting the Respondent claim. 9.It was submitted that the record clearly shows that the Appellant was duly served with the pleadings and notices relating to the proceedings before the Small Claims Court but failed to present evidence contradicting the Respondent claim. Consequently, the trial court proceeded to determine the case on the basis of the evidence presented by the Respondent. It is settled law that where evidence presented before a court is unchallenged and uncontroverted, the court is entitled to rely on it in arriving at its determination. In Trust Bank Limited v Paramount Universal Bank Limited & 2 Others [2009] eKLR, the Court held that:“Where a party fails to call evidence in support of its case, the opponent's evidence stands uncontroverted and the court is entitled to rely on the same."Similarly, in Autar Singh Bahra & Another v Raju Govindji HCCC No. 548 of 1998, the court held that failure by a defendant to adduce evidence means that the plaintiff's case remains unchallenged.It was thus submitted that the Appellant cannot therefore seek to challenge findings based on evidence that it never attempted to rebut. That litigation must come to an end, and a party who deliberately fails to participate in proceedings cannot later seek to re-open issues that were properly determined. 10.The burden of proof in civil cases lies on the claimant to prove her case on a balance of probabilities. This principle is codified under Sections 107 and 108 of the Evidence Act (Cap 80). Denning J in Miller v Minister of Pensions described proof on a balance of probabilities as a case which is more probable than not. That in the present case, the Respondent produced documentary evidence demonstrating inter alia;a sale agreement was entered into between the parties; the Respondent paid a substantial portion of the purchase price for the motor vehicle; shortly after purchase, the motor vehicle developed serious mechanical defects; the Respondent incurred substantial repair costs as a result of the defects; the Respondent further produced diagnostic reports from motor vehicle technicians confirming that the vehicle's gearbox had failed and required replacement; the Respondent also produced email correspondence demonstrating that the Appellant was informed of the defects but declined to take responsibility.The Appellant did not file any defence or present any evidence to rebut these claims. The trial court therefore correctly found that the Respondent had proved her case on a balance of probabilities. 11.As to whether this court can interfere with the trial court’s findings, reliance was placed in the cases of Selle & Another v Associated Motor Boat Co Ltd & Others (1968) EA 123, where the Court held:“An appeal to this Court from a trial by the High Court is by way of retrial and the Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses."In Peters v Sunday Post Limited (1958) EA 424, the Court stated:“It is a strong thing for an appellate court to differ from the finding of fact of a trial judge who had the advantage of seeing and hearing the witnesses."Further, in Mbogo & Another v Shah (1968) EA 93, the Court held that an appellate court will only interfere where the trial court:· Misdirected itself in law,· Misapprehended the evidence, or. Reached a decision that is plainly wrong. 12.It was submitted that the Appellant has not demonstrated any such error. Instead, the Appellant is inviting this Court to overturn the judgment of the trial court despite having failed to present any evidence during the trial. Such an invitation should be rejected as it would undermine the principles of procedural fairness and finality in litigation. That the appeal is an afterthought and an abuse of court process and is merely an attempt by the Appellant to delay the execution of a lawful judgment. In Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others [2009] eKLR, the Court of Appeal held that abuse of court process includes using court procedures in a manner that is oppressive or vexatious to the other party. 13.It was finally submitted that by failing to participate in the proceedings before the Small Claims Court and subsequently filing this appeal, the Appellant is attempting to reopen issues that were properly determined. This conduct amounts to an abuse of the court process. That the Appellant has not demonstrated any error of law or fact that would warrant interference by this Honorable Court. 14.The Respondent therefore seeks for the dismissal of the appeal with costs. 15.I have given due consideration to the record of appeal and the submissions presented. I find the issue for determination is whether the Respondent proved her case on a balance of probabilities. 16.The legal burden of proof was on the Respondent to prove her claim on a balance of probabilities. It was therefore incumbent upon the Respondent to prove her assertions pleaded in the Statement of Claim. Section 107(1) of the Evidence Act, Cap 80 provides that:Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. 17.However, the burden may shift to the Defendant to disprove the alleged claim. This is the evidential burden of proof, which is well captured under Sections 109 and 112 of the Evidence Act. See Anne Wambui Ndiritu vs Joseph Kiprono Ropkoi & Another [2005] 1 EA 334.The two concepts are well illustrated by the Court of Appeal in the case of Mbuthia Macharia v Annah Mutua & Another [2017] eKLR, that:“The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes an evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced.” See Supreme Court in Raila Amolo Odinga & Another v Independent Electoral and Boundaries Commission & 2 Others [2017] eKLR,The standard of proof is well captured in the case of Palace Investment Ltd v. Geoffrey Kariuki Mwenda & Another (2015) eKLR, where the Court held that:Denning J. in Miller v Minister of Pensions (1947) 2 ALL ER 372, discussing the burden of proof, had this to say:“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say, we think it is more probable than not, the burden is discharged, but if the probabilities are equal, it is not. This burden on a balance of preponderance of probabilities means a win, however narrow. A draw is not enough. So in any case in which a tribunal cannot decide one way or the other which evidence to accept, where both parties…are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”Kimaru J. (as he then was) in William Kabogo Gitau vs George Thuo & 2 others (2010) 1 KLR 526 stated that:“In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposite party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegation that he made has occurred.” 18.It is not in dispute that the Respondent’s claim related to a purchase agreement over a certain motor vehicle. It is also not in dispute that the Respondent and his witness collected the motor vehicle and only raised the complaint after about two months. It is also not in dispute that the Appellant did not call a witness in the matter but relied on its response to the claim. 19.It is trite that parties are bound by the terms of their agreements unless it is shown that the contract is illegal, oppressive and unconscionable. It is also trite that it is not the business of the court to rewrite such contracts. In National Bank of Kenya Limited Vs Pipe Plastic Samkolit (K) Ltd [2002] EA 503 the court held as follows:“A court of law cannot rewrite contracts between parties. The parties are bound by the terms of the contract, unless coercion, fraud or undue influence are pleaded or proved.’’Also, in Danson Muriuki Kihara Vs Johnson Kabungo [2017] eKLR it was held as follows:“It is apparent from the authorities that a court of law will not interfere with contracts entered inti by two consenting parties and the interest agreed upon unless the terms are on the face of it illegal, unconscionable, oppressive and fraudulent. It will also interfere where the terms amount to unjust enrichment at the expense of desperate borrowers.’’ 20.Looking at the statement of claim by the Respondent, it is clear that she has neither pleaded any fraud nor duress, deceit against the Appellant in any way. That being the position, it si deemed that she entered into the sale agreement voluntarily and accepted the terms thereof, Indeed, the Respondent confirmed on cross-examination that she willingly entered into the sale agreement and that she was not accompanied by a mechanic and that she had no knowledge of any mechanical condition of vehicles. It is common knowledge that sale of vehicle are always on ‘’As is where is basis’ and that buyers of vehicles at vehicle yards are at liberty to pick or choose any of such vehicle if they are satisfied that it suits them. The said buyers are expected to use their own instincts or be accompanied by experts before entering into sale agreements. The Appellant’s response to the claim is that the Respondent inspected the vehicle and was satisfied with its condition before paying for the same. I find that the Respondent was at liberty to have the vehicle tested by a mechanic of her choice before deciding to enter into the deal. Indeed, the Respondent was expected to be aware that certain vehicles could have some latent defects and that she was supposed to ensure that the vehicle was good for her purpose before purchasing the same. 21.The Respondent has urged this court to dismiss the appeal because the Appellant did not present evidence in the trial court. I find that there is no hard and fast rule that every person who has been sued must tender his/her evidence as long as the Plaintiff has not surmounted the burden of proof so as to shift the evidential burden upon the Defendant to disprove the claims. In the present case, the Appellant opted to rely on its response to the claimant’s claim. It was therefore the burden of the Respondent as the claimant to prove the claim on a balance of probabilities. The Respondent confirmed that she had bought the vehicle from the Appellant on ‘’as is where is’’ basis ‘and thus the burden was on her to prove that there was fraud, deceit or misrepresentation on the part of the Appellant. She did not do so. In fact the Respondent confirmed that she had not been accompanied by a mechanic who would assist in checking for any latent defects. It is instructive that the Respondent did not even bother to seek to have the car test driven in order to check its condition. Indeed, the Respondent called CW2 who was one of her witnesses and who confirmed that they took the vehicle and later established that it had gear box problems. The Appellant has relied on the doctrine ‘’As is where is’’ basis. This doctrine usually implies that the buyer accepts the vehicle in its current condition with all the attendant faults and that the seller does not make any concessions regarding condition or performance of the vehicle and leaves it to the buyer to decide. It is instructive that there was no warranty either express or implied in the said sale agreement which could then allow the Respondent to fall back on. The rule of thumb is that if the issue is about wear and tear after the sale, the courts will almost side with the seller on the principle of ‘’as is where is’’ basis. It is thus quite clear that the Respondent seems to have entered into a bad bargain and seeks to compel the Appellant to compensate her. Iam satisfied that the Respondent did not prove her claim on a balance of probabilities even though the Appellant offered no evidence in rebuttal since the Respondent did not avail evidence to the effect that the Appellant had duped her into buying the said vehicle. The Respondent had been accompanied by a witness who claimed to be well conversant with vehicles and thus convinced the Respondent to enter into the deal. It is common knowledge that persons out in the market are always advised and to take an implied caution styled ‘’Buyer be aware”. It seems the Respondent threw caution to the wind and accepted to enter into the deal. I have seen the correspondences exchanged between the parties prior to the filing of the suit and note that the Appellant’s agent had informed the Respondent that the vehicle was one of those repossessed from owners who had defaulted in repayment of loans and that the said vehicles were being sold on ‘’as is where is’’ basis. With that information, the Respondent was thus made aware of the conditions and circumstances leading to the sale agreement. Under those circumstances, the Appellant cannot be faulted as the Respondent willingly accepted the terms of the sale agreement. 22.The Respondent has urged this court to uphold the decision of the trial court. In Selle & Another v Associated Motor Boat Co Ltd & Others (1968) EA 123, where the Court held:“An appeal to this Court from a trial by the High Court is by way of retrial and the Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses."In Peters v Sunday Post Limited (1958) EA 424, the Court stated:“It is a strong thing for an appellate court to differ from the finding of fact of a trial judge who had the advantage of seeing and hearing the witnesses."Further, in Mbogo & Another v Shah (1968) EA 93, the Court held that an appellate court will only interfere where the trial court:· Misdirected itself in law,· Misapprehended the evidence, or. Reached a decision that is plainly wrong. 23.Upon an analysis of the record of the trial court and submissions, it is my finding that the trial court misapprehended the evidence and thereby arrived at an erroneous decision which warrants this court to interfere with it. Indeed, the Respondent’s evidence did not pass muster regarding the burden of proof placed on her shoulders. It matters not that the Appellant did not tender evidence in rebuttal, as the burden lay with the Respondent throughout to prove her claim. The Respondent, having admitted that she willingly accepted to buy the vehicle after liking it while in the company of her trusted witness and the vehicle being on “as is where is’’ basis, cannot be heard to claim that she had entered into a bad bargain. The court could not come to her aid in the circumstances. 24.In view of the foregoing observations, it is my finding that the Appellant’s appeal has merit. The same is allowed. The judgement of the trial court dated 30/9/2025 is hereby set aside and substituted with an order dismissing the Respondent’s suit with no order as to costs. Each party to bear their own costs of this appeal. DATED AND DELIVERED AT SIAYA, THIS 12TH DAY OF JUNE 2026.D. KEMEIJUDGEIn the presence of :M/s Rugut for Kongere...........................................for AppellantMr Achando.........................................for RespondentM/s Maurine.......................................Court Assistant