Megapower for Energy Solutions and Contracting Ltd v Kamau & another (Civil Appeal E1290 of 2024) [2026] KEHC 9494 (KLR) (Civ) (23 June 2026) (Judgment)

Megapower for Energy Solutions and Contracting Ltd v Kamau & another (Civil Appeal E1290 of 2024) [2026] KEHC 9494 (KLR) (Civ) (23 June 2026) (Judgment) Neutral citation: [2026] KEHC 9494 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E1290 of 2024 AC Mrima, J June 23, 2026 Between Megapower for Energy Solutions and Contracting Limited Appellant and Agnes Njeri Kamau 1st Respondent Grace Wanja Kimotho 2nd Respondent (Being an appeal from the Judgment of Hon. V.N Mochache (Resident Magistrate/Adjudicator in Small Claims Court Commercial Case No. E6224 of 2024 delivered on 18th October 2024) Judgment Background: 1.Agnes Njeri Kamau and Grace Wanja Kimotho, the 1st and 2nd Respondents herein respectively, instituted suit against Megapower for Energy Solutions and Contracting Limited, the Appellant herein, in Small Claims Court Commercial Case No. E6224 of 2024 (hereinafter referred to as “the suit”). The Respondents sought a sum of Kshs. 612,500/=, comprising a refund for solar equipment purchased and costs incurred to assess the faulty equipment, along with interest and costs. 2.In a synopsis, the Respondents averred that on 24th March 2023, they purchased from the Appellant two 5KW 48V Axpert VM II 5000-48 Serenum Hybrid Inverters at Kshs. 75,000/= each and sixteen 12V 200AH Renergy Batteries at Kshs. 26,500/= each. The Respondents subsequently hired an independent electrical engineer to install the system. 3.It was their case that after the installation, their electricity grid power bills escalated instead of reducing. Despite the Appellant’s technician visiting and making rectifications, the system still failed to serve its intended purpose. Consequently, the Respondents procured an independent assessor who reported that the batteries were weak and bad, necessitating their replacement. 4.In response, the Appellant denied liability. It asserted that its role was limited to selling the goods to an independent installer, Mr. Kosir, and that it had no obligation regarding the system’s design or installation. The Appellant contended that the system’s failure was an issue of design and installation rather than a product defect, maintaining that the goods sold were of merchantable quality. 5.Upon considering the evidence, the trial Court found that the batteries sold were defective and that the Appellant breached the implied conditions of merchantability and fitness for purpose under the Sale of Goods Act. It consequently entered judgment for the Respondents for Kshs. 612,500/= plus costs and interest. The Appeal: 6.Aggrieved by the trial Court ’s decision, the Appellant lodged the instant appeal vide a Memorandum of Appeal dated 8th November 2024. It is premised on the following grounds:1.That the trial magistrate erred in law and fact by finding that the solar batteries supplied by the Appellant were not of merchantable quality without sufficient evidence to support this conclusion.2.That the trial magistrate erred in law in concluding that there was an implied warranty as to fitness for purpose in the transaction, given that the Claimants engaged an independent contractor for the installation.3.That the trial magistrate erred in failing to consider the effect of the installation, which was performed by an independent contractor, on the performance of the solar system.4.That the trial Court erred in finding that the Appellant was liable based on a balance of probabilities without requiring sufficient evidence to establish that the alleged defect was the sole cause of the system’s failure.5.That the trial magistrate erred in awarding the Claimants a full refund of Kshs. 612,500.00 without establishing a clear causal link between the defect and the failure of the solar system. The Submissions 7.In its written submissions dated 7th March 2025, the Appellant asserted that the trial Court erred in finding that the batteries were not of merchantable quality at the time of sale, pointing out that the Respondents used the batteries for several months before raising a formal complaint on 9th January 2024. 8.The Appellant contended that the expert report relied upon by the Respondents was uncertified and inadmissible. It sought support from the decision in Kenya Bureau of Standards -vs- Powerex Lubricants Ltd [2020] eKLR, to advance the argument that the burden of proving that goods were unmerchantable lies with the buyer. 9.Regarding the implied warranty of fitness for purpose, the Appellant argued that the Respondents independently selected the batteries without relying on its skill, and thus no such warranty arose. To that end, the Appellant cited Kenya Breweries Ltd -vs- Kiambu General Transport Agency Ltd [2000] eKLR and Peter M. Kariuki -vs- Attorney General [2014] eKLR, where it was established that buyers assume suitability risks when selecting goods independently. 10.The Appellant further submitted that the trial Court ignored the effect of the independent contractor’s installation. It called to its aid the decision in Elijah Ole Kool -vs- George Ikonya Thuo [2001] eKLR, to advance the argument that it cannot be held accountable for the negligence of a third-party installer who failed to conduct a proper load assessment. 11.On the standard of proof, the Appellant submitted that the trial Court improperly shifted the burden of proof, violating Section 107 of the Evidence Act. 12.Lastly, the Appellant challenged the award of a full refund. It cited the authorities in FM -vs- JNM & another [2020] eKLR and Consolata Anyango Ouma vs South Nyanza Sugar Company Ltd [2015] eKLR, to argue that damages should be restricted to mitigation of loss, and the Court erred in ordering a refund for all batteries instead of limiting it to only the defective ones. The Appellant asserted that the Respondents failed to reject the goods within a reasonable time, in contravention of Section 13 of the Consumer Protection Act and the finding in Stephen Kinini Wangondu -vs- The Ark Limited [2016] eKLR. The Respondents’ case: 13.The Respondents challenged the appeal through written submissions dated 26th March 2025. They maintained that the trial Court correctly found the batteries were unmerchantable. It was their case that under Section 16(b) of the Sale of Goods Act, goods bought by description carry an implied condition of merchantable quality. They drew support from the case of Wood Products Limited -vs- Rufus Kithela Kobia [2019] eKLR, to front the position that the goods failed to perform their primary function of storing energy for night-time use. 14.The Respondents highlighted that tests by both parties revealed the batteries were weak and bad. In response to the Appellant’s claim regarding improper installation, the Respondents argued that the Appellant failed to table any evidentiary reports to substantiate it position. Further, the Respondents submitted that their expert report was fully admissible, they referred to the authority in Ali Mohamed Sunkar -vs- Diamond Trust Bank Ltd [2011] eKLR and John G Kamuyu & Another vs Safari ‘M’ Park Motors, where it was held that an expert report can only be effectively challenged by a counter-report, which the Appellant failed to provide. 15.The Respondents defended the finding of an implied warranty of fitness, pointing out that they relied on the expertise of the Appellant’s representative, Steve Mburu, to select the equipment. They tempered their position through the case of Prudential Printers Limited -vs- Carton Manufacturers Limited [2012] eKLR where it was observed that a seller’s skill implies a warranty of fitness. 16.On the issue of a full refund, the Respondents cited the expert assessment indicating that a weak battery affects the performance and lifespan of other good batteries, creating a ripple effect that necessitated replacing the entire set. Based on the finding in Vivid Printing Equipment Solutions Limited -vs- Monicah Ng’ong’oo t/a Identity Partner [2019] eKLR, they claimed that they were entitled to a full refund and special damages incurred. 17.Finally, the Respondents argued that under Section 38(1) of the Small Claims Court Act, this Court ’s jurisdiction is limited to matters of law. Analysis and Determination: 18.Having considered the parties’ respective cases, the grounds in the Memorandum of Appeal and the rival submissions, this Court finds that the appeal turns on the following issues: -i.The propriety of the finding of merchantability of the batteries and whether there was a breach of the implied warranty of fitness for purpose.ii.Whether the trial Court improperly shifted the burden of proof.iii.The propriety of the trial Court ’s award. 19.This being an appeal from the Small Claims Court , this Court ’s mandate is tightly circumscribed by Section 38 of the Small Claims Court Act to the effect that the appeal is only on matters of law and is final. 20.In M’bagine -vs- Nyaga (Civil Appeal 172 of 2019) [2026] KECA 335 (KLR) the Court of Appeal outlined its role as a second and final appellate Court and in the process discussed matters of law as follows;… For second appeals, this Court has repeatedly stated the limiting principle in Kenya Breweries Ltd v Godfrey Odoyo [2010] eKLR and Stanley Maore v Geoffrey Mwenda [2004] eKLR: that interference with concurrent factual findings is not warranted unless the conclusions are plainly wrong in law on the recognized exceptions.The same approach is reflected in Karingo v Republic [1982] KLR 213 and M’Riungu v Republic [1983] KLR 455, where the Court emphasised that a second appeal must be confined to points of law, and that a complaint about facts only becomes a point of law if the findings are unsupported by evidence or disclose a misdirection in principle. 21.In Gatirau Peter Munya -vs- Dickson Mwenda Kithinji & 2 Others [2014] eKLR the Supreme Court restated that an issue may be one of law where there is a misapplication of legal principle or a conclusion not supported by the evidential record. In the case of J N & 5 Others -vs- Board of Management, St. G School Nairobi & Another [2017] eKLR, the Court discussed points of law in the following fashion: -…. In law, a question of law, also known as a point of law, is a question that must be answered by applying relevant legal principles to interpretation of the law. Such a question is distinct from a question of fact, which must be answered by reference to facts and evidence as well as inferences arising from those facts. Such a question is distinct from a question of law, which must be answered by applying relevant legal principles. The answer to a question of fact (a finding of fact) usually depends on particular circumstances or factual situations. 22.Drawing from the foregoing, this Court must pay deference to the findings of fact unless it is shown that they are unsupported by evidence or the trial’s Court ’s application or interpretation of the law was fundamentally flawed or procedurally perverse as to yield and injustice. 23.A consideration of the issues now follow. The propriety of the finding of merchantability of the batteries and whether there was a breach of the implied warranty of fitness for purpose: 24.Whereas this issue appears to be one of fact on the face of it, it is in fact a point of law since it turns on the trial Court ’s interpretation of Sections 15 and 16 of the Sale of Goods Act. The said sections provide as follows;15.Conditions implied by descriptionWhere there is a contract for the sale of goods by description, there is an implied condition that the goods shall correspond with the description; and, if the sale is by sample as well as by description, it is not sufficient that the bulk of the goods corresponds with the sample if the goods do not also correspond with the description.16.No implied warranty as to fitness, except in certain casesSubject to the provisions of this Act and of any Act in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale, except as follows—a.where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, so as to show that the buyer relies on the seller’s skill or judgment, and the goods are of a description which it is in the course of the seller’s business to supply (whether he be the manufacturer or not), there is an implied condition that the goods shall be reasonably fit for that purpose:Provided that in the case of a contract for the sale of a specified article under its patent or other trade name, there is no implied condition as to its fitness for any particular purpose;b.where goods are bought by description from a seller who deals in goods of that description (whether he be the manufacturer or not), there is an implied condition that the goods shall be of merchantable quality:Provided that if the buyer has examined the goods, there shall be no implied condition as regards defects which that examination ought to have revealed;c.an implied warranty or condition as to quality or fitness for a particular purpose may be annexed by the usage of trade;d.an express warranty or condition does not negative a warranty or condition implied by this Act unless inconsistent therewith. 25.Flowing from the above, the question before this Court is whether the transaction between the disputants brought them within the operation of section 16(b). For that purpose, inevitably, this Court must appreciate the evidence. 26.There is no contention that the Appellant, through one Mr. Kosir, sold its products to the Respondents. In its witness statement, the 1st Respondent indicated that when she expressed interest in the products, she visited the Appellant’s office whereupon Steve Mburu, an engineer with the Appellant guided her through the features, quality and suitability of the solar system for her purpose. She stated that she relied on the engineer’s expertise and consequently made the purchase. 27.The Appellant did not controvert the fact that Steve Mburu, one of their technicians described their products to the 1st Respondent. Further, there is affirmation from the various long threads of email exchange between disputants that the Appellant variously, through its technician, one Arnold and John visited the 1st Respondent’s residence and admitted the fault regarding its products. Upon making the acknowledgment, Appellant went further and indicated to the 1st Respondent that it will initiate the necessary procedures to facilitate the replacement. 28.On its part, the Appellant alleged that there was insufficient evidence to find the batteries unmerchantable and unfit for purpose. 29.A careful analysis of the foregoing evidence indicates firmly that there indeed was an engagement that brought the parties within the protection under Section 16b of the Sale of Goods Act. In addition to the witness statements, the trial Court went further and relied on two assessment reports prepared by Jamesmo Contractors Limited which concluded that the batteries were defective and that weak cells affected the performance of the entire system. The Appellant did not tender a contradictory professional report during the trial. 30.In the premise, this Court finds that the learned trial Magistrate correctly applied Sections 15 and 16 of the Sale of Goods Act to the facts. Not only did the Appellants admit the fault in their own product but also, the Respondents presented both uncontroverted witness statement and un-rebutted expert evidence regarding the defectiveness of the batteries. Therefore, this Court hastens to reiterate that the trial Court ’s factual finding that the batteries were not of merchantable quality was grounded in evidence and is not perverse. There was no error of application and interpretation of the Sale of Goods Act. Whether the trial Court improperly shifted the burden of proof: 31.The Appellant contended that the trial Court misapplied the standard of proof and improperly shifted the burden to it. In civil matters, the burden of proof rests on the Claimant on a balance of probabilities. The Court of Appeal in Civil Appeal No. 297 of 2015 Mbuthia Macharia -vs- Annah Mutua Ndwiga & another [2017] eKLR discussed the dynamics of section 107 of the Evidence act regarding the burden of proof. It observed;…. The Judge alluded to the provisions of section 107 of the Evidence Act, which deals with the burden of proof in any case and aptly stated that it lies with the party who desires any Court to give judgment as to any legal right or liability, is for that party to show that the facts which he alleges his case depends upon exist. This is known as the legal burden and we need not repeat, save to emphasize the same principle of law is amplified by the learned authors of the leading Text Book; - The Halsbury’s Laws of England, 4th Edition, Volume 17, at paras 13 and 14: describes it thus:The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose.(14)The legal burden of proof normally rests upon the party desiring the Court to take action; thus a claimant must satisfy the Court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case with separate issues. (emphasis added)(16)The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes 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. As the weight of evidence given by either side during the trial varies, so will the evidential burden shift to the party who would fail without further evidence 32.The Respondents discharged their initial burden through their evidence and by producing the independent assessor’s report confirming the batteries were weak and bad. Subsequently, the evidentiary burden shifted to the Appellant to rebut the claim. They had the obligation to substantiate the claim that the failure of the batteries was due to faulty installation by a third party. 33.The trial Court correctly observed that the Appellant did not tender evidence to enable the Court conclude that the system installation was contrary to the required specifications. Therefore, the trial Court did not shift the legal burden of proof. It properly weighed the evidence before it on a balance of probabilities. The propriety of the trial Court ’s award: 34.The Appellant argued that the trial Court erred in law by awarding a full refund. It asserted that that liability should be strictly limited to the individual batteries found to be defective. The assessment report before the trial Court explicitly concluded that a bad or weak battery affects the performance and life of the other good batteries. 35.Based on the evidence, the trial Court found that the entire system was compromised due to the latent defects in the supplied components. Under the Sale of Goods Act, a breach of an implied condition entitles the buyer to treat the contract as repudiated and seek a refund. The trial Court ’s decision to order a full refund of Kshs. 612,500/= was a direct remedy for the breach of condition. 36.In this Court ’s assessment, the factual finding of damages supported by the expert recommendation on record does not amount to an error of law. The Appellant’s reliance on Section 13 of the Consumer Protection Act to claim the Respondents accepted the goods by delaying rejection is misguided in this context. The trial Court correctly classified the defect as a latent one that could not have been established through examination at the time of purchase. Latent defects, by their nature, manifest after use, validating the timeline within which the Respondents raised the complaint. Disposition: 37.Having found no error of law in the trial Court ’s evaluation of the evidence or application of the statutory framework, this Court finds and holds that the appeal is not merited. 38.In the end, the following final orders hereby issue: -(a)The appeal is hereby dismissed in its entirety.(b)The judgment of the Small Claims Court at Nairobi in SCC COMM NO. E6224 OF 2024 delivered on 18th October 2024 is hereby upheld.(c)Costs of the appeal to the Respondents.Orders accordingly. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 23RD DAY OF JUNE 2026.A. C. MRIMAJUDGEJudgment virtually delivered in the presence of:No appearance, Learned Counsel for the Appellant.Mr. Mwangi, Learned Counsel for the Respondents.Michael/Amina – Court Assistants.