[1998] KECA 131 (KLR)
The court held that the appellant failed to plead any particular fundamental breach or specify the defect in the engine that would entitle it to invoke the warranty clause. Without such specific pleadings, the first respondent could not be expected to plead further or admit liability. The absence of particularized...
Source-derived case information.
- Citation
- [1998] KECA 131 (KLR)
- Parties
- Appellant: Gracan (K) Limited; Respondent: General Motors (K) Ltd; Respondent: Ryce Motors (K) Ltd
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 181 of 1997
- Procedural Posture
- Civil Appeal / Appeal From Refusal to Strike Out Defence in High Court
- Outcome
- appeal dismissed
- Judges
- AM Akiwumi, AB Shah
- Legal Topics
- Contractual Warranties, Pleadings and Striking Out, Fundamental Breach, Motor Vehicle Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gracan (K) Limited
Appellant
General Motors (K) Ltd
Respondent
Ryce Motors (K) Ltd
Respondent
Procedural Posture
Civil Appeal / Appeal From Refusal to Strike Out Defence in High Court
Legal Issues
- 1 Whether the defence of the first respondent should be struck out for failure to admit liability under a warranty clause.
- 2 Whether the appellant sufficiently pleaded a fundamental breach or specified defect to invoke the warranty.
Ratio Decidendi
The court held that the appellant failed to plead any particular fundamental breach or specify the defect in the engine that would entitle it to invoke the warranty clause. Without such specific pleadings, the first respondent could not be expected to plead further or admit liability. The absence of particularized allegations in the plaint meant that the defence could not be struck out, as the respondent was not given sufficient information to respond to the claim. The appeal was therefore dismissed, upholding the High Court's refusal to strike out the defence.
Court Disposition
appeal dismissed
Orders
- Appeal is dismissed.
- No order as to costs against the first respondent.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: OMOLO, AKIWUMI & SHAH, JJ.A.)
CIVIL APPEAL NO. 181 OF 1997
BETWEEN
GRACAN (K) LIMITED.......................................APPELLANT
AND
1. GENERAL MOTORS (K) LTD
2. RYCE MOTORS (K) LTD................................RESPONDENTS
(An appeal from the decision of the High Court of Kenya at Nairobi (Hon. Mr. Justice Gedion P. Mbito) dated 27th day of May, 1997 in H.C.C.C. NO. 1598 OF 1996) ***********
JUDGMENT OF THE COURT
This appeal is against the refusal by the superior court (Mbito, J) to strike out the defence of the first defendant. The main argument propounded by Mr. Ogeto for the appellant is that as the vehicle in question broke down within the warranty period the first respondent is liable for the damages suffered by the appellant as a result of the vehicle being off the road for 162 days. There is no averment in the plaint of any particular fundamental breach on part of the first respondent. Nor does the plaint show what was the particular defect in the engine of the vehicle in question which enabled the appellant to invoke the warranty clause. In these circumstances the first respondent could not plead any further than what it did. To enable the first respondent to properly plead to a particular defect that defect had to be specifically pleaded.
In the result this appeal is dismissed with no order as to costs as against the first respondent but the appellant will pay the second respondent's costs.
Dated and delivered at Nairobi this 20th day of May,
1998.
R.S.C. OMOLO
..................
JUDGE OF APPEAL
A. M. AKIWUMI
................
JUDGE OF APPEAL
A. B. SHAH
...............
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR