[2008] KEHC 2103 (KLR)

[2008] KEHC 2103 (KLR)

The court found that the respondent had personally selected and purchased the cow after observing it and did not insist on any warranty as to its fitness. There was no evidence of misrepresentation by the appellant regarding the cow's health, and the respondent did not plead or prove any such misrepresentation. The...

Source-derived case information.

Citation
[2008] KEHC 2103 (KLR)
Parties
Appellant: David Muriithi; Respondent: John Githae Bendaye
Court
High Court
Court Station
High Court at Nyeri
Jurisdiction
Kenya
Judgment Date
30 June 2008
Case Number
Civil Appeal 12 of 1997
Procedural Posture
Civil Appeal / Judgment
Outcome
appeal_allowed
Judges
MSA Makhandia, MM Kasango
Legal Topics
Sale of Goods, Implied Warranties, Burden of Proof, Contractual Misrepresentation
Source Language
english
Commercial and Corporate Civil Procedure Sale of Goods Implied Warranties Burden of Proof Contractual Misrepresentation

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Summary, issues, holding and outcome

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Parties

David Muriithi

Appellant

John Githae Bendaye

Respondent

Procedural Posture

Civil Appeal / Judgment

Legal Issues

  1. 1 Whether the respondent proved his case on a balance of probability.
  2. 2 Whether the appellant was aware of the purposes for which the respondent purchased the cow.
  3. 3 Whether the respondent is entitled to a refund of the purchase price.

Ratio Decidendi

The court found that the respondent had personally selected and purchased the cow after observing it and did not insist on any warranty as to its fitness. There was no evidence of misrepresentation by the appellant regarding the cow's health, and the respondent did not plead or prove any such misrepresentation. The veterinary evidence presented by the respondent was hearsay and inadmissible, as the veterinary officer did not testify. The cow died 15 days after purchase while in the respondent's custody, and the cause of death was not established. Under section 16 of the Sale of Goods Act, there is no implied warranty as to fitness unless expressly agreed. The appellant delivered what was...

Court Disposition

appeal_allowed

Orders

  • The appeal is allowed with costs to the appellant.
  • The judgment and decree of the subordinate court are set aside.