https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9544

Kilia v Ryce Motors Ltd (Civil Appeal 71 of 2017) [2026] KEHC 9544 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KEHC 9544 (KLR) Republic of Kenya In the High Court at Machakos Civil Appeal 71 of 2017 AN Ongeri, J June 12, 2026 Between Dominic Mulinge Kilia Appellant and Ryce Motors Limited Respondent (Being an Appeal from the Judgement of HON. A.G KIBIRU (CM) in MACHAKOS CMCC NO. 402 of 2009 delivered on 16/05/2017) Judgment 1.This suit was originally instituted before the High Court and subsequently transferred to the Magistrate’s Court as CMCC No. 402 of 2009. 2.The appellant brought a claim against the respondent seeking special damages for breach of contract, exemplary damages, and costs. 3.The cause of action was premised on repairs done by the respondent on the appellant's motor vehicle, registration number KUY 104, which was operated as a matatu along the Matuu-Yatta route. 4.The appellant's case was that after the vehicle experienced an engine knock, he took it to the respondent to replace the engine. 5.However, the engine overheated within a week, and despite being returned and repaired several times, the problems persisted until the vehicle was ultimately grounded on May 20, 1985. 6.The appellant claimed the respondent failed to replace any parts of the vehicle, resulting in a loss of daily income of Kshs. 1,200. 7.The respondent denied liability and put the appellant to strict proof. An employee of the respondent testified that while the vehicle was purchased and repaired there, it carried a warranty of one year or 20,000 kilometers, which had already expired. 8.The respondent further stated that the vehicle had no history of service when brought in, had exceeded the mileage for routine maintenance, possessed a faulty speedometer, and that all repairs had actually been performed to the customer's satisfaction, denying any poor workmanship. 9.Upon reviewing the evidence and exhibits, the trial court ruled in favor of the respondent on the issue of liability. 10.The court found that the appellant had simply presented allegations of poor workmanship without supporting evidence. 11.It noted that the appellant bore the onus to prove his case, which included demonstrating that he properly maintained the vehicle and that the subsequent defects were a direct consequence of the respondent's poor workmanship, which he failed to do. 12.Consequently, the trial court determined there was no evidence establishing liability on the part of the respondent. 13.However, on the issue of costs, the court ordered that each party bears its own costs of the suit. 14.The appellant appealed against the said judgment on the following grounds;i.That the learned magistrate erred in law when he failed to appreciate that the respondent did not carry out the repairs satisfactorily as agreed with the plaintiff on 10/1/1985.ii.That the learned magistrate erred in law and in fact when he failed to appreciate that the Engine block had not been opened or worked upon on 4/2/1985 until 18/1/1985 yet it was mandatory to do so by 10/1/1985.iii.That the learned magistrate erred in law and in fact when he failed to notice there was a clear presumption of law that repairs on 10/1/1985 were not carried out despite a document signed by the appellant stating it was satisfactorily done.iv.That the learned magistrate erred in law and in fact when he failed to observe that the appellant was not called to witness the fitting of the spare parts on 10/1/1985 until the car was collected.v.That the learned magistrate erred in law and in fact when he based his findings without evidence of replacement.vi.That the learned magistrate having correctly found that the respondents had the duty to advise the appellant on technical matters, failed to appreciate that it was because no good workmanship was done on the vehicle by them as a dealer and mechanic of the same.vii.That the learned magistrate erred in law and in fact when he failed to appreciate that the specific complaint about the vehicle was for the period of 10/1/1985 and subsequently between 4/2/1985 - 18/4/1985 and not any other date, but the magistrate on the contrary decided the case without applying his mind to the subject dates.viii.That the learned magistrate erred in law when he relied on mileage of 107,000 km yet the issue was on repairs which were to be done on 10/1/1983.ix.That the learned magistrate erred in law when he failed to consider the specific complaint of the appellant and adopted the defence of the respondent.x.That the learned magistrate misdirected himself on matters which were not at stake by enquiring about the vehicle being serviced yet the service was done in 1985. 15.The parties filed written submissions as follows; 16.The appellant submitted that the appeal arises from the dismissal of a suit for damages, focusing on the high standard of duty and care a specialist car dealer owes to a lay customer who possesses limited mechanical knowledge. 17.The appellant brought motor vehicle registration number KUY 104 to the respondent with explicit instructions to address high oil consumption by dismantling the engine, repair a brake oil leak, and adjust the clutch. 18.After the vehicle was left at the garage for 20 days, it had to be returned to the respondent shortly after collection because the engine was overheating and the headlights were faulty. 19.The vehicle was brought back to the garage yet again due to a leaking left-hand gear, high water consumption, and mechanical issues with the engine block, which the respondent attended to free of charge. 20.While the respondent claimed the engine block was checked during the initial January visit, the records indicate it was not properly inspected until mid-February, when persistent defects finally forced its replacement. 21.An exhibit letter dated May 7, 1985, serves as an explicit admission by the respondent that repeat mechanical works were being performed on the vehicle due to unresolved issues. 22.After being refused entry for further repairs on May 20, 1985, the vehicle suffered a complete, permanent mechanical breakdown on May 23, 1985, and had to be taken to the appellant's home. 23.The appellant contends that the trial magistrate erred by failing to evaluate the job cards and evidence, which clearly demonstrated that the initial service instructions were never carried out to the letter, resulting in poor workmanship. 24.As experts, the respondent bears the legal burden to prove that the service was done to standard, proper spare parts were installed, old parts were returned, and competent technical advice was given, rather than escaping liability using a standard gate-exit card. 25.Under Chapter 80, Section 119 of the Laws of Kenya, the vehicle is presumed unmerchantable because it broke down repeatedly well before the expiry of standard mileage or expected service duration. 26.Due to the respondent's negligence and the loss of use of the vehicle, the appellant incurred heavy business losses, including a specific loss of profit evaluated by a witness at 44,000 Ksh per month. 27.The appellant prays that the court allow the appeal with costs, holding the respondent liable for loss of profit from May 23, 1985, through 1989, along with general damages under commercial interest rates since 1985. 28.The appellant filed further submissions that the key issue is not whether the vehicle had been serviced earlier, but whether the specific instructions given to the respondent on 10th January 1985, 14th February 1985, 18th February 1985, and 25th May 1985 were carried out properly. 29.The appellant argues that the respondent, as an expert, failed to perform the work correctly. 30.The job cards clearly set out the work that was required to be done. 31.There were no return cards to confirm that the jobs had been properly completed. 32.The fact that the work had to be repeated is evidence of poor workmanship, especially since the vehicle was allowed to leave the garage. 33.The respondent submitted that the appeal arises from the trial court judgment that dismissed the appellant’s entire suit against the respondent regarding a commercial dispute over a Daihatsu V12 motor vehicle. 34.The appellant seeks a total of 347,600 Shillings for loss of profit and additional damages, claiming the respondent is liable for negligence, poor workmanship, and a breach of statutory merchantability under Chapter 80, Section 119. 35.The respondent counters that the appeal lacks merit, is founded on speculative assertions, and that the trial court properly found that the appellant failed to discharge the legal burden of proof. 36.At the point of sale, the vehicle was brand new, recording a mileage of only 63 kilometers, and was sold with a standard manufacturer's warranty of one year or 20,000 kilometers (whichever came first). 37.By the time the appellant first presented the vehicle for servicing at the respondent’s workshop on January 10, 1985, the odometer recorded a mileage of 107,479 kilometers, proving the vehicle had been used for tens of thousands of kilometers without prior complaint. 38.The main point of the dispute is the appellant's allegation that the respondent’s employees negligently fitted the engine block with "wrong piston rings" following instructions on January 10, 1985, causing subsequent engine defects. 39.The respondent explicitly denies this claim in Paragraph 4 of their reply, stating that no such incorrect fitting occurred, demanding strict proof from the appellant, and reminding the court that parties cannot deviate from their formal pleadings. 40.The workshop records demonstrate that the mechanical issues raised across multiple visits were varied and non-recurring rather than chronic, with the appellant leaving satisfied after each repair: 41.In January 10, 1985 the instructions were to attend to high oil consumption, a smoke leak, clutch adjustments, and vehicle wobbling. 42.In February 18, 1985 the instructions shifted to a leaking radiator, high water consumption, and car brakes. 43.In March 18, 1985 the nstructions were to tighten the engine, rectify speed cables, adjust brakes, and repair the anterior. 44.In April 18, 1985 the final workshop visit required repairs to rod ends, overheating, vibration, and the handbrake. 45.The respondent notes that for the few jobs that did require repeat attention, the appellant was not charged for the service, as documented in subsequent correspondence dated May 7, 1985. 46.Ultimately, because the vehicle's extensive mileage history and varied repair logs contradict the claims of inherent unmerchantability and persistent poor workmanship, the respondent requests the court to dismiss the appeal with costs. 47.The issues for determination in this appeal are as follows;i.Whether the respondent breached the contract of service through negligence or poor workmanship in repairing the appellant's motor vehicle;ii.Whether the motor vehicle was unmerchantable under Section 15 or Section 16 of the Sale of Goods Act (Chapter 31 of the Laws of Kenya),; andiii.Whether the appellant is entitled to the special damages claimed for loss of user. 48.In resolving the first issue on liability for poor workmanship, this Court must be guided by the foundational principle of civil litigation anchored in Sections 107 and 108 of the Evidence Act (Chapter 80 of the Laws of Kenya). 49.These provisions dictate that he who asserts must prove, and the legal burden of proof rests squarely on the party who would fail if no evidence at all were given on either side. 50.In the context of an action for negligence and breach of contract arising from mechanical repairs, the appellant bore the initial legal burden to present prima facie evidence of the alleged poor workmanship or the fitting of incorrect piston rings. 51.A review of the lower court’s record reveals that the appellant merely presented speculative assertions and allegations without the backing of independent technical evidence. 52.It is a well-settled principle of law that courts do not act on mere suspicions or unbacked assertions, no matter how strongly felt by a party. 53.To establish mechanical negligence, a claimant is generally expected to call an independent expert witness, such as an automobile engineer or a government inspector, to examine the vehicle and connect its subsequent mechanical failure directly to the actions or omissions of the mechanic. 54.A garage cannot be held liable for subsequent mechanical defects when the owner fails to eliminate other plausible causes of breakdown, such as ordinary wear and tear, erratic driving, or a historical failure to perform routine maintenance. 55.The appellant’s vehicle was operated as a matatu along the Matuu-Yatta route, a demanding commercial enterprise, and possessed an odometer reading of 107,479 kilometers by January 10, 1985, with a faulty speedometer and no service history. 56.The job cards from the varied visits between January and April 1985 demonstrate that the complaints changed from oil consumption and clutch adjustments to a leaking radiator, speed cables, and rod ends. 57.These shifting complaints point to ordinary commercial wear and tear rather than a single chronic failure induced by the respondent. 58.Furthermore, the appellant signed gate-exit documents upon collection acknowledging that the repairs had been done to his satisfaction. 59.While the appellant argues that there is a presumption of law that the repairs were incomplete, the opposite is true; a signed delivery or satisfaction note creates a strong prima facie presumption that the work was executed as agreed, shifting the evidential burden to the customer to prove fraud, coercion, or latent defects that could not be detected upon reasonable inspection. 60.The appellant failed to displace this presumption. The fact that the respondent attended to minor follow-up adjustments free of charge, as confirmed in their letter of May 7, 1985, is indicative of commercial goodwill and standard dealer practice rather than an admission of liability or poor workmanship. 61.Regarding the second issue on the statutory merchantability of the vehicle, the appellant’s reliance on Chapter 80, Section 119 of the Laws of Kenya is legally misplaced, as Chapter 80 is the Evidence Act, which contains no such provision. 62.Presumably, the appellant intended to invoke the implied conditions of merchantable quality and fitness for purpose under the Sale of Goods Act (Chapter 31 of the Laws of Kenya). 63.However, this statutory framework applies fundamentally to contracts for the sale of goods rather than contracts for work and materials or pure repair services. 64.Even if the court were to consider the implied conditions under the Sale of Goods Act regarding the initial purchase of the vehicle, the undisputed evidence shows that the Daihatsu V12 was sold brand new with a manufacturer's warranty of one year or 20,000 kilometers. 65.By the time the vehicle experienced the engine issues in 1985, it had covered over 107,000 kilometers, vastly exceeding the warranty period. 66.A manufacturer or dealer cannot be held to an infinite implied warranty of merchantability where a commercial vehicle has been put to extensive use and has surpassed its express warranty thresholds without prior complaint. 67.The vehicle's long and active service life on the road directly defeats any claim that it was inherently unmerchantable at the time of supply. 68.On the third and final issue regarding the claim for special damages for loss of profit evaluating to Kshs. 1,200 daily or Kshs. 44,000 monthly, the law is absolute. Special damages must not only be specifically pleaded, but they must also be strictly proved with clean and uncontaminated evidence. 69.The Court of Appeal in the locus classicus case of Hahn v. Singh [1985] KLR 716 held that a misleading or generalized statement of loss does not amount to strict proof, and a court cannot award special damages based on speculative figures or unvouched estimates. 70.The appellant in this matter failed to tender any daily work tickets, cash receipts, books of account, or tax returns to verify the actual gross or net daily income of the matatu on the Matuu-Yatta route. 71.The commercial loss of use of a vehicle cannot be sustained in the absence of primary accounting documents showing historical profitability. 72.I find that liability has not been established and the special damages have not been strictly proved and therefore the claim for loss of profit must fail. 73.Consequently, this Court finds that the learned trial magistrate did not err either in law or in fact in evaluating the evidence, applying the burden of proof, or dismissing the appellant's suit. 74.The appeal is hereby dismissed in its entirety. As for costs, the lower court ordered each party to bear its own costs and I direct likewise. 75.Orders to issue accordingly. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 12TH DAY OF JUNE 2026ASENATH N. ONGERIJUDGEIn the presence ofNo appearance for the AppellantMr Rienye for the RespondentChrispin - Court Assistant