https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1322

N.S. Car Dealers Ltd v Shivachi & another (Civil Appeal E001 of 2024) [2026] KECA 1322 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KECA 1322 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Civil Appeal E001 of 2024 AK Murgor, KI Laibuta & GW Ngenye-Macharia, JJA July 10, 2026 Between N.S. Car Dealers Ltd Appellant and Jerry Russels Shivachi 1st Respondent Evans Muhadia Busaka 2nd Respondent (An appeal from the Judgement and Decree of the High Court of Kenya at Mombasa (Hon. Kizito Magare, J.) dated 24th July 2023 in Mombasa HCA No. E033 of 2023 Civil Appeal E033 of 2023 ) Judgment 1.By a plaint dated 13th March 2019, Jerry Russels Shivachi Evans and Muhadia Busaka, the Respondents, as Plaintiffs before the Chief Magistrate’s Court at Mombasa, instituted a suit against the Appellant, N.S. Car Dealers Ltd seeking a refund of Kshs. 670,000, being deposit paid towards the purchase of motor vehicle registration number KCN 940G Toyota Voxy (the motor vehicle) together with Kshs. 20,000 paid for installation of a car tracker, interest and costs. The Respondents pleaded that, on or about 21st February 2018, they entered into a motor vehicle hire purchase agreement with the Appellant for the purchase of the motor vehicle at an agreed purchase price of Kshs 1,450,000.00, out of which they paid a deposit of Kshs 670,000.00, with the balance payable in monthly instalments commencing on 15th March 2018. 2.It was the Respondents’ case that, at the time of purchase, the Appellant represented to them that the motor vehicle had zero mileage and, upon driving the vehicle to Nairobi, the speedometer reflected 517 kilometres. They further pleaded that, after four days of possession, the Appellant supplied them with a Certificate of Roadworthiness dated 21st April 2017 from the Kenya Bureau of Standards, which indicated that the motor vehicle had an odometer reading of 91,608 kilometres, thereby revealing that the odometer had allegedly been tampered with, and which fact was not disclosed to them at the time of purchase. The Respondents averred that they returned the motor vehicle to the Appellant, who acknowledged receipt thereof and promised to replace it with another vehicle at an enhanced purchase price of Kshs. 1,650,000; that the Appellant thereafter demanded Kshs. 200,000 as depreciation charges and refused to refund the deposit and tracker costs that were paid. 3.In support of their case, the Respondents called Evans Muhadia Busaka (PW1), who adopted his witness statements and produced the documents contained in the Respondents’ list of documents. PW1 testimony reiterated the contents of the Plaint. Under cross-examination, PW1 admitted that the sale agreement had been executed voluntarily, and that the agreement indicated that the vehicle was sold on an “as is where is” basis. He also admitted that he had no direct evidence proving tampering of the odometer at the time of purchase, but maintained that the Respondents returned the motor vehicle immediately after discovering the discrepancy, and before any instalment became due. 4.The Appellant filed a statement of defence dated 14th October 2019 denying the Respondents’ claim and contending that the vehicle was sold on an “as is where is” basis after inspection by the Respondents. The Appellant denied representing that the motor vehicle had zero mileage, or tampering with the odometer, but averred that the Respondents breached the agreement by failing to pay the agreed instalments. 5.The Appellant’s witness, Nadim Kana (DW1), adopted his witness statement, and denied that he had informed the Respondents that the vehicle had zero mileage or having tampered with the odometer. He testified that the Respondents voluntarily returned the vehicle alleging dissatisfaction with the mileage, whereupon the Appellant informed them that, if they wished to purchase a zero-mileage vehicle, the same would have to be specially imported at a higher cost. He reiterated that the Respondents breached the agreement by failing to pay the instalments as agreed. 6.Upon considering the pleadings, the oral and documentary evidence tendered by the parties, and the respective submissions, the trial Magistrate identified the central issue for determination as whether the Respondents had established a case warranting the grant of the reliefs sought. The court found that the dispute principally revolved around the odometer reading of the motor vehicle at the point of sale. While the Respondents alleged that the vehicle was represented as having zero mileage, the court observed that there was no direct proof that the odometer reading at the time of purchase was zero, nor was there conclusive evidence of actual tampering with the odometer. Consequently, the court held that fraud and odometer tampering had not been strictly proved to the required standard. 7.Notwithstanding the absence of direct proof of tampering, the trial Magistrate found that the conduct of the Appellant after the vehicle was returned was material and lent credibility to the Respondents’ case; and that it was undisputed that the vehicle was returned to the Appellant before the first instalment fell due under the sale agreement. Evidence showed that the first instalment was due on 15th March 2018, yet the vehicle had been returned and allegedly repossessed on 12th March 2018 before any default had occurred; and that the sale agreement only entitled the Appellant to repossess the vehicle in the event of default by the purchaser and, since no instalment was overdue at the time it was returned, the Appellant’s right to repossess had not accrued. The purported repossession was therefore found to be unjustified and contrary to the terms of the contract. 8.The trial Magistrate also found it significant that, after accepting the return of the vehicle, the Appellant proceeded to assess depreciation in the sum of Kshs. 200,000; and that the assessment of depreciation implied that the Appellant contemplated refunding the deposit after deducting depreciation, which in turn supported the Respondents’ assertion that the vehicle had been surrendered back to the Appellant upon discovery of the mileage discrepancy. Further, the Appellant offered to import a replacement vehicle for the Respondents at an enhanced fee, a proposal that was inconsistent with the Appellant’s position that the Respondents were in breach of the contract. The court found that this conduct amounted to an acknowledgment that the original contract had been frustrated. 9.Upon considering the Appellant’s admission that the vehicle was sold after six months, the court observed that the Appellant had benefited from the proceeds of the sold vehicle while still retaining the Respondents’ deposit, which was inequitable and unjust. In light of the totality of the evidence, the trial Magistrate held that, although odometer tampering was not proved, the contract between the parties had been frustrated by the Appellant’s conduct and the surrounding circumstances, and that the appropriate remedy was the restoration of the parties to their respective positions prior to the sale agreement. Consequently, the trial court entered judgment in favour of the Respondents and ordered the Appellant to refund Kshs 670,000, being the deposit paid, together with Kshs 20,000 incurred on installation of the tracker, making a total of Kshs 690,000, with interest at court rates from the date of filing suit until payment in full, together with costs. 10.Aggrieved by the Judgment, the Appellant filed an appeal to the High Court, contending that the trial Magistrate wrongly introduced and relied on the doctrine of frustration, which was not pleaded by the Respondents in their plaint; that the trial Magistrate granted reliefs that were inconsistent with the court’s findings, thereby effectively rewriting the contract between the parties; that the sale agreement governed the rights and obligations of the parties, including remedies in the event of breach; and that the court had no jurisdiction to substitute its own terms or fashion remedies outside the contractual framework. It was the Appellant’s contention that the Respondents had purchased the vehicle on an “as is where is” basis after inspection, and that there was no breach of the sale agreement on its part. The Appellant maintained that it had not misrepresented the mileage of the vehicle, and nor had he tampered with the odometer; and that the Respondents voluntarily executed the agreement with full knowledge of the vehicle’s condition. The Appellant further argued that the Respondents were in breach of the sale agreement for failing to pay the agreed instalments and that, in those circumstances, the Appellant was entitled to retain the deposit in accordance with the agreement. It was therefore contended that the Respondents were not entitled to a refund of the deposit or the tracker costs. 11.Upon re-examining the pleadings, evidence and submissions, the High Court found that the trial Magistrate wrongly concluded that the contract was frustrated as this was not pleaded by the Respondents. However, notwithstanding the mischaracterization of the facts, the High Court found that the ultimate conclusion reached by the trial court was correct, albeit for different legal reasons. The High Court found as a fact that the motor vehicle was returned by the Respondents and accepted by the Appellant before the first instalment under the sale agreement had fallen due. The court rejected the Appellant’s claim of repossession, holding that there was no repossession in law or in fact, and that the vehicle had been voluntarily re-delivered to the Appellant following the mileage dispute. 12.The court appreciated that the dispute concerning the zero-mileage representation and the subsequent revelation that the motor vehicle had previously covered 91,605 kilometres went to the root of the transaction. While the court held that it was unnecessary to conclusively determine who tampered with the odometer, it found that there had been non-disclosure and concealment of a material fact, which rendered the contract voidable at the instance of the buyer; that, by returning the vehicle, the Respondents had lawfully repudiated the contract of sale, and that the Appellant, by accepting the return and later selling the vehicle, had treated the contract as cancelled. Consequently, there was no subsisting contract capable of enforcement, and the matter ceased to be one of breach of contract. 13.The court further found that, following repudiation and acceptance of the returned vehicle, the Respondents’ claim properly lay in money had and received, and not in damages for breach of contract; and that the Appellant had no legal basis to continue retaining the Respondents’ deposit after the sale had been repudiated and the motor vehicle disposed of. 14.On the issue of payment, the High Court found that the Respondents had proved on a balance of probabilities that they paid a deposit of Kshs 670,000, and that the Appellant had failed to plead or prove any refund; that the Appellant’s defence was found to be a general denial, unsupported by particulars, and therefore incapable of displacing the Respondents’ claim. 15.However, the High Court found that the claim for Kshs 20,000 allegedly paid for installation of a car tracker had not been proved, and that there was no sufficient evidence demonstrating payment or contractual obligation in that regard. The court therefore set aside that portion of the trial court’s award. 16.In the final analysis, the High Court held that, although the trial Magistrate misapplied the doctrine of frustration, the Respondents were nonetheless entitled to restitution. The appeal was accordingly dismissed on the merits, save for the variation setting aside the award of Kshs 20,000, the Judgment of the trial court was otherwise affirmed. The Appellant was ordered to refund Kshs 670,000 to the Respondents together with interest and costs.Aggrieved, the Appellant has filed the instant appeal on grounds that:“ 1.The learned judge's mind was prejudiced against the Appellant given his evaluation of the evidence, hence violating the Appellant’s right to a fair hearing before an impartial tribunal. 2.The learned judge erred in law in framing and deciding a case of repudiation of contract when that was not the case before him. 3.The learned judge erred in law in reaching conclusions of fact and law which were contrary to the trial court’s conclusions, without a cross-appeal by the Respondents. 4.The learned judge erred in law in finding that the Appellant had admitted selling a vehicle with a tampered odometer when no such admission had been made and the trial court had in fact found to the contrary. 2.The learned judge erred in law in ordering a refund of Kshs. 670,000.00 despite the contract expressly excluding such a refund. 3.The learned judge in any event erred in his evaluation of the evidence thus reaching conclusions which were wholly unsupported by the evidence. 4.The learned judge erred in law in suo moto taxing the costs for the appeal without assigning any reason for such a decision.” 17.When the appeal came up for hearing on a virtual platform, both the appellant and respondent were represented. In their written submissions, counsel for the Appellant submitted that the learned Judge fell into error by framing and determining the appeal on the basis of repudiation of the contract, yet repudiation was not pleaded before the trial court; that the High Court, sitting as a first appellate court lacked jurisdiction to introduce a new case for the parties. In support of this proposition, reliance was placed on Kenya Commercial Finance Co. Ltd vs Kipng’eno Arap Ngeny & Another, Civil Appeal No. 100 of 2001 where it was held that a court is bound by the parties’ pleadings and cannot determine a matter on unpleaded issues. 18.Counsel submitted that the learned Judge reached conclusions of fact and law that were contrary to the findings of the trial court; that, having found that the odometer tampering had not been proved, the High Court could not lawfully substitute that finding with conclusions of concealment or tampering, and that the learned Judge misapprehended the evidence by concluding that the Appellant admitted selling a vehicle with a tampered odometer when no such admission was made on record, and the trial court had expressly found to the contrary; that this amounted to a serious error of fact warranting appellate interference. 19.It was further argued that the learned Judge was wrong to order a refund of Kshs. 670,000 notwithstanding the express contractual terms excluding refund of the deposit, thereby impermissibly rewriting the contract between the parties. Reliance was placed on National Bank of Kenya Ltd vs Pipeplastic Samkolit (K) Ltd & Another [2001] eKLR; and Fina Bank Ltd vs Spares & Industries Ltd, Civil Appeal No. 51 of 2000 for the proposition that courts cannot rewrite a contract for the parties; that the sale was conducted on an “as is where is” basis, and that the learned Judge failed to give effect to the contractual allocation of risk between the parties and, instead, wrongly invoked principles under the Sale of Goods Act to defeat clear contractual provisions. 20.Finally, counsel submitted that the learned Judge erroneously taxed and fixed the costs of the appeal suo moto without assigning any reasons, and without following the prescribed procedure for taxation of costs, thereby improperly exercising judicial discretion. 21.On their part, the Respondents submitted that the appeal before the Court is a second appeal and is therefore confined strictly to matters of law, and not a re-evaluation of facts. Counsel submitted that both the trial court and the High Court carefully evaluated the evidence on record and arrived at concurrent findings, which ought not to be disturbed; that the Respondents purchased the motor vehicle on the Appellant’s representation that it had zero mileage, a fact which later turned out to be false; that the record clearly showed that, although the odometer read zero mileage at the point of sale, the milage was 517 kilometres upon arrival in Nairobi; that subsequent import and inspection documents, including the Certificate of Roadworthiness from the Kenya Bureau of Standards, revealed that the vehicle had in fact covered 91,605 kilometres; that, upon discovering this discrepancy, the Respondents immediately returned the vehicle to the Appellant, who accepted it and promised to replace it but, instead, sold the vehicle and retained both the vehicle and the Respondents’ money. 22.Regarding the claims of bias, it was submitted that the learned Judge had a duty to re-evaluate the credibility of witnesses and make findings based on contradictions in the Appellant’s evidence; that the learned Judge properly found the Appellant’s witness to be untruthful, citing specific inconsistencies in his testimony regarding whether he sold the motor vehicle, whether he was present during inspection, and whether the vehicle was repossessed or voluntarily returned; and that, such findings were based on the record and cannot be re-litigated under the guise of alleged bias. 23.On the issue of frustration or repudiation, counsel submitted that the substance of the case was never about terminology, but about the facts pleaded and proved; that parties are not required to expressly plead the words “repudiation” or “money had and received,” but only the material facts giving rise to the cause of action; that, from the pleadings and evidence, the Respondents clearly pleaded non-disclosure and misrepresentation, which entitled the court to draw an inference that the contract had been repudiated; and that the High Court, sitting as a first appellate court, properly re-evaluated the evidence and was entitled to reach the conclusion that the contract was repudiated following the return and acceptance of the vehicle. 24.On the issue of refund, counsel submitted that the Appellant could not be heard to allege breach by the Respondents while at the same time retaining both the motor vehicle and the purchase money; that repudiation entitled the Respondents to restitution; and that the Appellant’s conduct amounted to unjust enrichment which is inequitable and unconscionable. 25.With regard to costs, counsel submits that the learned Judge properly exercised discretion in capping the costs of the appeal at Kshs. 95,000, and that the Appellant suffered no prejudice as the appeal had been dismissed. Counsel submitted that the order on costs was reasonable and consistent with the applicable Remuneration Order. 26.This is a second appeal to this Court. This being the case, this Court will confine itself to matters of law only as guided in Kenya Breweries Limited vs Godfrey Odoyo [2010] eKLR, (Civil Appeal No. 127 of 2007) where Onyango Otieno, JA. put it succinctly that:“In a second appeal however, such as this one before us, we have to resist the temptation of delving into matters of facts. This Court, on second appeal, confines itself to matters of law unless it is shown that the two courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse.” 27.We have considered the Record, the grounds of appeal and the parties’ submission, and the issues that arise for consideration are:i.Whether the learned Judge was biased in evaluating the evidence;ii.Whether the learned Judge of the High Court was in error in law by determining the appeal on the basis of repudiation and restitution when the same had not been pleaded by the Respondents;iii.Whether the learned Judge varied the findings of the trial court in the absence of a cross-appeal by the Respondents;iv.whether the learned Judge was wrong in ordering a refund of Kshs. 670,000 contrary to the express terms of the parties’ contract notwithstanding the “as is where is” clause in the agreement;v.whether in disregarding the contractual term that the motor vehicle was sold on “as is where is” basis, the learned Judge improperly rewrote the contract between the parties by ordering refund of the deposit contrary to the express terms of the agreement; andvi.Whether the learned Judge rightly awarded and capped the costs. 28.We begin with whether the learned Judge of the High Court was biased in his evaluation of the evidence. In addressing this issue, the Appellant’s main grievance is that, after evaluating the Appellant’s evidence, the court concluded that the Appellant had variously lied. From a reevaluation of the evidence against the High Court’s Judgment, we are unable to discern the basis upon which the question of bias arises. This is because it is clear that the learned Judge merely re-analysed the evidence, and arising from material contradictions and inconsistencies disclosed in the Appellant’s evidence, concluded that the Appellant had lied. But we are unable to discern how such evaluation would lead to an assertion that the learned Judge was biased. Without any correlation having been provided as to how a revaluation of the evidence demonstrated bias, we are unable to fault the learned Judge for the conclusion reached. Accordingly, we dismiss this ground. 29.Second, as to whether the Judge was in error in law in determining the appeal on the basis of repudiation and restitution when the same had not been pleaded, the Respondents’ case was that the substance of their claim was always that the Appellant failed to disclose the true mileage of the motor vehicle, which led them to return the motor vehicle upon discovery of the discrepancy, and that the Appellant thereafter retained both the vehicle and the Respondents’ money. 30.In determining the appeal, the High Court found that, although the trial court erroneously invoked the doctrine of frustration, the evidence established that the Respondents returned the vehicle to the Appellant, and that the Appellant accepted the return of the vehicle and later disposed of it and that, on that basis, the Respondents were entitled to restitution. 31.The law is settled that parties are bound by their pleadings. However, courts are equally enjoined to determine disputes on the basis of the substance of the pleaded facts and evidence tendered. The predecessor of this Court in the case of Captain Harry Gandy vs CAS Par Air Charters Limited [1956] Volume XXII EACA 139, Sinclair Vice-president, inter alia, had this to observe at page 140 paragraph 3:“The object of pleadings is of course to ensure that both parties shall know what are the points in issue between them, so that each may have full information of the case he has to meet and prepare his evidence to support his own case or to meet that of his opponent. As a rule, relief not founded on the pleadings will not be given...” 32.After citing the decision of Scrutton, L.J in Blay vs Pollard and Morris [1930] 1.K.B. 682- the Judge added:“Cases must be decided on the issues on the record and if it is desired to raise other issues they must be placed on the record by amendment...” 33.However, in the case of Odd Jobs vs Mubia [1970] EA 476. Law, J.A (as he then was), at page 478 paragraph 9-11 had this to say:“On the point that a court has no jurisdiction to decree on an issue which has not been pleaded, the attitude adopted by this Court is not as strict as appears to be that of Courts in India. In East Africa the position is that a Court may allow evidence to be called and may base its decision on an unpleaded issue if it appears from the cause followed at the trial that the unpleaded issue has in fact been left to the court for decision...” 34.This Court’s decision in the case of Ann Wairimu Wanjohi vs. James Wambiru Mukabi [2021] eKLR observed that:“(27)In Odd Jobs vs Mubia (supra), the Eastern Africa Court of Appeal held that a court may base its decision on an unpleaded issue, if it appears from the course followed at the trial that the issue has been left to the court for determination. In Vyas Industries vs Diocese of Meru [1976] eKLR, the Eastern Africa Court of Appeal applied and approved Odd Jobs vs. Mubia (supra), holding that, as the advocate for the appellant had led evidence during the trial and addressed the court on the unpleaded issue, the trial court could base its decision on the unpleaded issue, as the issue had been left for the court’s decision during the trial….(33)We take the view that parties should specifically state their claim by properly pleading the facts relied upon and the relief sought, as the pleadings are the primary documents that guide the court and the parties concerning the claim and the contesting positions of the parties.In accordance with the Civil Procedure Rules, the parties should also either provide a list of agreed issues, or if there is no agreement, each provide their own list of issues so that the court can settle the issues. Although it is desirable that where necessary the pleadings should be amended to bring in all the issues, Odd Jobs vs Mubia (supra) remains good law, that in limited circumstances where an unpleaded issue is crucial to the matters in issue the court may determine a suit on the unpleaded issue, provided both parties have clearly addressed the unpleaded issue in their evidence or submissions, and left the matter for the determination of the court. However, such determination will not extend to determining or awarding a relief that was not specifically sought in the pleadings.” 35.In the case of Pacific Frontier Seas Ltd vs. Kyengo & Another [2022] KECA 396 (KLR), this Court held that:“As regards unpleaded issues, the principle is well settled that a court, even when it has jurisdiction, will not base its decision on unpleaded issues because the issues determined by the court must flow from pleadings. It is the pleadings which guide the litigation and succinctly inform the parties and the court what is in dispute. However, where the parties lead evidence and address the unpleaded issues and from the cause adopted at trial it appears that the unpleaded issues have been left for the decision of the court, the court will validly determine the unpleaded issues.” 36.And, in Olive Mwihaki Mugenda & Another vs.Okiya Omtata Okoiti & 4 Others [2016] eKLR, this Court reaffirmed the Odd Jobs principle, observing that if an unpleaded issue is necessary for resolving a dispute and parties have addressed it, the court is entitled to make a determination. 37.The Respondents pleaded that the Appellant represented that the vehicle had zero mileage on the odometer. But subsequent inspection documents revealed that the vehicle had previously covered over 91,000 kilometres. Upon discovering the discrepancy, the Respondents returned the motor vehicle to the Appellant. The Appellant accepted the return of the vehicle, and subsequently sold it, but refused to refund the deposit to the Respondents. These facts formed the central dispute before the trial court and were fully canvassed by the parties.In considering the evidence, the learned Judge had this to say:“In any case, there will have been no difference whether the odometer was tampered with. The truth is that the contract was repudiated. The reasons are irrelevant. The vehicle was given back to the seller who took delivery and repudiation was complete by dint of the Sale of Goods Act. The remedy for the seller was to sue for unjustified repudiation”. 38.In finding that the agreement was repudiated, did the learned Judge introduce an unpleaded issue? 39.The Osborn’s Concise Law Dictionary, Seventh Edition defines “repudiation” as “Words or conduct indicating that a person does not intend to be or does not regard himself as being bound by an obligation.” The term is ordinarily applied in cases concerning sale of goods and contract. 40.Similarly, Black’s Law Dictionary 11th Edition defines “repudiation” as “A contracting party’s, words or actions that indicate an intention not to perform the contract in the future…” 41.Repudiation is a serious matter and not lightly presumed. In the case of Heyman vs Darwins Ltd [1942] AC 356, Lord Wright stated that repudiation is a term used when “a party refuses to perform his obligations any further.” 42.The proper approach to be adopted in determining whether there has been repudiation was set out by the Supreme Court of South Africa in the persuasive case of Datacolor International (Pty) Ltd vs Intamarket (Pty) Ltd [2000] ZASCA 82; 2001 (2) SA 284 (SCA) where the Court observed:“(1)Repudiation has sometimes been said to consist of two parts: the act of repudiation by the guilty party, evincing a deliberate and unequivocal intention no longer to be bound by the agreement, and the act of his adversary, 'accepting' and thus completing the breach. So, for example, Winn LJ remarked in Denmark Productions Ltd v Boscobel Productions Ltd [1969] 1 QB 699 (CA) at 731F - 732A:“Where A and B are parties to an executory contract, if A intimates by word or conduct that he no longer intends, or is unable, to perform it, or to perform it in a particular manner, he is, in effect, making an offer to B to treat the contract as dissolved or varied so far as it relates to the future. If B elects to treat the contract as thereby repudiated, he is deemed, according to the language of many decided cases, to “accept the repudiation…” 43.It is clear from the facts of the instant case that the Respondents action of returning the motor vehicle to the Appellant before the first installment was due was a definitive indication that they had no intention of performing the contract for sale of the motor vehicle. In effect, the Respondents’ actions amounted to a repudiation of the agreement. For their part, the Appellant accepted the returned motor vehicle with an offer to replace it, and later sold it, thereby accepting the repudiation. What this all means is that the Respondents’ action of repudiating the contract of sale of the motor vehicle, and the Appellant’s acceptance of that repudiation, effectively terminated the contract as between the parties. Consequently, based on the pleaded and proved facts, the learned Judge was entitled to conclude, and in our view rightly so, that the contract was repudiated. It did not matter that the pleadings as set out by the parties did not expressly indicate that the contract was repudiated, as the facts and evidence distinctly pointed to the contract as having been repudiated and subsequently terminated by the parties. We would also add that, pleadings are ordinarily confined to matters of facts on the basis of which courts are left to make conclusions on the applicable legal principles, and this was precisely what the learned Judge did. There is no merit in this ground of appeal. 44.As to whether the learned Judge varied the findings of the trial court in the absence of a cross-appeal by the Respondents, the Appellant argued that having found that odometer tampering had not been proved, the High Court could not lawfully substitute the facts with findings of concealment and repudiation. 45.The record is clear that both the trial court and the High Court found that, while the odometer tampering was not conclusively proved, the evidence nonetheless established non-disclosure of a material fact regarding the mileage of the vehicle resulting in the Respondents returning the motor vehicle to the Appellant, who later sold it. 46.On the finding of fact, in the case of Kiruga vs Kiruga & Another [1988] KLR 348, Apaloo, JA. (as he then was), while dealing with what amounts to proof, cited Watt vs Thomas [1947] AC 484 and Peters vs Sunday Post Ltd [1958] EA 424 and held that:“An appeal court cannot properly substitute its own factual finding for that of a trial court unless there is no evidence to support the finding or unless the Judge can be said to be plainly wrong. It is a strong thing for an appellate court to differ, from the finding, on question of facts, of the Judge who tried the case and who had the advantage of seeing and hearing the witnesses. An appellate court has indeed the jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon evidence should stand. But this is jurisdiction, which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion.” 47.Similarly, this Court in the case of Mohammed Mahmoud Jabane vs Highstone Butty Tongoi Olenja [1986] KLR 661; [1986-1989] EA 183, held that:“The appellate Court only interferes with the trial Court’s findings of fact if it is shown that he took into account facts or factors which he should have not taken into account, or that he failed to take into account matters of which he should have taken into account, that he misapprehended the effect of the evidence or that he demonstrably acted on wrong principles in reaching the findings he did.” 48.Having re-evaluated the Judgment against the evidence adduced before the trial court, we are satisfied that the facts as presented demonstrated that the Respondents repudiated the agreement, which repudiation the Appellant accepted. By specifying that the agreement was repudiated, the learned Judge merely expressed the legal terminology applicable to the Appellant and the Respondents actions in so far as the contract was concerned and, therefore, the question of a cross appeal did not arise. We would add that the Appellant did not point out or specify how the learned Judge varied the findings of the trial court thereby necessitating a cross-appeal. Accordingly, this ground of appeal also fails. 49.Whether the learned Judge was wrong in ordering a refund of Kshs.670,000 contrary to the express terms of the parties’ contract notwithstanding the “as is where is” clause in the agreement, it was the learned Judge’s finding that, the Respondents having returned the motor vehicle immediately upon discovering the discrepancy, and upon proving payment of the deposit of Kshs. 670,000, they were entitled to a refund, since the Appellant’s accepted the return of the vehicle of which it subsequently sold. As stated above, the action of accepting the return of the motor vehicle rendered the contract as having been mutually terminated. At this point, the question that begs is whether the Appellant was entitled to retain both the deposit and the motor vehicle. 50.In such cases, courts will not permit a party to unjustly enrich itself at the expense of another. Under the principle of restitutio in integrum which, according to Trayner’s Latin Maxims 4th Edition, means “Entire restitution; restoration to one’s former condition.” Given that the Appellant was paid the deposit, and having admitted receiving the motor vehicle which was later sold, without having provided any legal basis for retaining the deposit, more particularly since the agreement was mutually terminated, it was bound to return the deposit to the Respondents. As a consequence, the learned Judge rightfully ordered a refund of the deposit paid by the Respondents, so that this ground of appeal also fails. 51.The next issue is whether the learned Judge improperly rewrote the contract between the parties without due regard for the contractual term that the motor vehicle was sold on “as is where is” basis. There is no dispute that the agreement specified that the motor vehicle was sold on an “as is where is” basis. However, once the Appellant accepted the return of the motor vehicle, thereby accepting to terminate the agreement, the “as is where is” term of the agreement became moot and ceased to be a binding term. This ground of appeal is therefore devoid of merit. 52.Finally, as concerns the award and the capping of costs, the Judgment shows that the learned Judge exercised his discretion to cap the costs of the appeal at Kshs. 95,000. It is trite that an award of costs is a matter within the discretion of the court, and an appellate court will not interfere unless it is shown that the discretion was exercised injudiciously. 53.The Supreme Court in the case of Jasbir Singh Rai & 3 Others vs Tarlochan Singh Rai & 4 Others Petition No. 4 of 2012; [2014] eKLR stated:“(18)It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference, is the judiciously-exercised discretion of the court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation.” (22)Although there is eminent good sense in the basic rule of costs – that costs follow the event – it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings – a position well illustrated by the considered opinions of this court in other cases. The relevant question in this particular matter must be, whether or not the circumstances merit an award of costs to the applicant.” 54.In this case, in accordance with the principle that costs follow the event, the court exercised its discretion and awarded costs of the appeal of Kshs. 95,000 to the Respondent. The Appellant’s complaint is merely that the court capped the costs. It has not been demonstrated that the exercise of discretion resulted in costs were inordinately high or unreasonable. We see no prejudice occasioned to the Appellant. This ground is also unwarranted. 55.In sum, we uphold the High Court’s decision of 24th July 2023. The Appeal has no merit and is hereby dismissed with costs to the Respondent.It is so ordered. DATED AND DELIVERED AT MOMBASA THIS 10TH DAY OF JULY,2026.A.K. MURGOR…………………………………JUDGE OF APPEALDR. K. I. LAIBUTA CArb FCIArb.……………………………… JUDGE OF APPEALG.W. NGENYE-MACHARIA…………………………...JUDGE OF APPEALI certify that this is the true copy of the originalsignedDEPUTY REGISTRAR