https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10497

Ochieng v Interdunia Mombasa Ltd & another (Civil Appeal E232 of 2025) [2026] KEHC 10497 (KLR) (15 July 2026) (Judgment) Neutral citation: [2026] KEHC 10497 (KLR) Republic of Kenya In the High Court at Kisumu Civil Appeal E232 of 2025 AM Hassan, J July 15, 2026 Between Peter Ochieng Appellant and Interdunia Mombasa Limited 1st Respondent Nyalunyo Auctioneers 2nd Respondent Judgment A. Introduction/facts Of The Case 1.The Plaintiff, vide an Amended Plaint dated 8th August 2023, instituted a suit against the Defendants seeking reliefs for refund of Kshs. 1,285,800/=, damages for breach of contract, a declaration that the repossession of the subject motor vehicle was unlawful, and any other relief that the court may deem just. 2.The dispute arose from a Hire Purchase Agreement dated 22nd April 2023, between the Plaintiff and the 1st Defendant for the purchase of a motor vehicle, a Subaru Forester, registration number KDL 302C. 3.The Plaintiff averred that under the Hire Purchase Agreement dated 22nd April 2023, he paid a deposit of Kshs. 800,000/= for the purchase of the motor vehicle. He produced the agreement, a handwritten amendment thereof, payment receipts, and documents evidencing repair and related expenses. 4.In response, the 1st Defendant filed an Amended Statement of Defence dated 20th November 2024, denying the claim and averring that the Plaintiff defaulted on his contractual obligations, thereby justifying lawful repossession of the vehicle. The 2nd Defendant neither entered appearance nor filed a defence. 5.This suit was heard in the magistrates court and judgment delivered on 7th October 2025 where the court entered judgment for the Defendant against the Plaintiff holding that the contract variation was valid and binding as to the amount payable per installment, the Plaintiff was in breach of the hire purchase agreement and that repossession was lawful, and that the claim for general damages for breach of contract equally failed, as general damages are not awardable for breach of contract, as the appropriate remedy is restitution or special damages strictly proved. 6.The learned magistrate, in conclusion dismissed the plaintiff’s suit with costs to the 1st Defendant. 7.Being dissatisfied with the judgment of the trial court, the Plaintiff lodged the present appeal vide a Memorandum of Appeal dated 4th November 2025, raising the following grounds: -1.That the learned trial magistrate erred in law and in fact by holding that the appellant had not paid the 1st installment of (Kenya Shillings One Hundred Thousand) Kshs. 100,000/=, yet there was sufficient evidence that the Appellant had paid over Kshs 100, 000/= by 23rd May 2023 yet the 1st installment was due on the 25th May 2023.2.The learned trial magistrate erred in law and in fact in holding that the appellant failed to pay the 1st installment of (Kenya shillings Three Hundred Thousand) Kshs. 300,000/= on the 25th April 2023 barely two days after paying the deposit of (Kenya Shillings Eight Hundred Thousand) Kshs. 800,000/= despite correctly holding that the monthly installment was varied to (Kenya Shillings One Hundred Thousand) Kshs. 100, 000/= per month3.The learned trial magistrate erred in law in failing to consider the pleadings and evidence adduced in entirety. 8.The appeal was canvassed by way of written submissions. Before delvinginto the submissions of both parties, this court notes that, being the first appellate court, it is required under Section 78 of the Civil Procedure Act and as was held in Selle v. Associated Motor Boat Co. Ltd [1969] E.A 123, to re-evaluate, re-assess and analyse the evidence adduced before the trial court and arrive at its own independent conclusions, while bearing in mind that it neither saw nor heard the witness when they testified A. Submissions By Parties Appellant’s Submissions 9.The Appellant’s first issue of submissions was whether the learned trial magistrate erred in law and in fact by holding that the Appellant had not paid the 1st installment of Kshs. 100,000/= by the time of repossession. 10.The Appellant submitted that the learned trial magistrate erred in finding that he had failed to pay the first instalment of Kshs. 100,000/= by the time the motor vehicle was repossessed. It was argued that the evidence before the trial court demonstrated that he had paid Kshs. 66,000/= by 22nd May 2023 and a further Kshs. 180,000/= on 24th May 2023, bringing the total amount paid to Kshs. 246,000/=. According to the Appellant, these payments demonstrated his willingness and ability to meet his obligations under the varied Hire Purchase Agreement and showed that the repossession of the motor vehicle on 23rd May 2023, was premature and unlawful, as he had not defaulted under the varied terms whose due date fell on 25th May 2023. 11.On whether the learned trial magistrate erred in law and in fact by holding that the Appellant failed to pay the 1st installment of Kshs. 300,000/= on 25th April 2023 despite correctly holding that the monthly installment was varied. The Appellant submitted that the trial magistrate erred in law and fact by finding that the first installment of Kshs. 300,000/= remained payable on 25th April 2023, despite correctly acknowledging that the parties had varied the payment terms by reducing the monthly installment to Kshs. 100,000/=. 12.The Appellant argued that the magistrates reasoning was internally inconsistent, as she upheld the validity of the handwritten variation, but still found the Appellant in default for failing to pay Kshs. 300,000/= by 25th May 2023. According to the Appellant, once the variation reducing the installment to Kshs. 100,000/= was accepted, the original typed provision requiring payment of Kshs. 300,000/= was superseded. Reliance was placed on Chitty on Contracts for the principle that where typed and handwritten terms are inconsistent, handwritten terms prevail as they reflect the party’s final intention. Since the handwritten variation was personally written and signed by the Respondent’s Managing Director, it constituted the binding agreement between parties. 13.The Appellant further contended that the Respondent is estopped from demanding any amount other than Kshs. 100,000/= after representing in writing that monthly payments of that amount would suffice. While relying on National Bank of Kenya Ltd v. Pipeplastic Samkolit (K) Ltd & Another [2001] KECA 362 (KLR) the Appellant acknowledged that courts do no rewrite contracts but argued that parties are free to subsequently vary their contractual terms where their intention to do so is established. The Appellant submitted that the handwritten note on the face of the agreement unequivocally demonstrated such intention to vary the payment schedule. The Appellant also invoked the contra proferentem rule, as applied in Mwangi Ngumo v. Kenya Institute of Management [2012] eKLR, arguing that any ambiguity regarding whether the Kshs. 100,000/= installments were to commence on 25th April 2023 or 25th May 2023 should be construed against the Respondent, whose Managing Director inserted the handwritten variation. 14.Additionally, the Appellant argued that the Respondent acted unconscionably by seeking to enforce the original Kshs. 300,000/ installment shortly after receiving an initial payment of Kshs. 800,000/=, notwithstanding the agreed variation. Citing Kenya Commercial Finance Co. Ltd v. Ngeny & Another, Langat v Co-operative Bank of Kenya Ltd, and Margret Njeri Mururi v. Bank of Baroda (Kenya) Ltd, the Appellant submitted that although courts generally uphold contracts as agreed, they may decline to enforce contractual terms that are oppressive, unconscionable or grossly unfair. In the circumstance, insisting on payment of Kshs. 300,000/= barely two days after substantial deposit of Kshs. 800,000/= was commercially unreasonable. 15.In addition, the Appellant relied on the evidence of DW1, Hasnat Azeem, who admitted in cross-examination that he personally wrote and signed the handwritten variation, as confirmation that the parties mutually agreed to vary the payment terms and that the Respondent is bound by that representation. 16.On the third issue on whether the learned trial magistrate erred in law by failing to consider the pleadings and evidence adduced in their entirety, the Appellant submitted that the learned magistrate failed to properly evaluate the evidence on record. First, although the 1st Respondent admitted that its managing director had personally inserted and signed the handwritten variation allowing payment of Kshs. 100,000/= monthly, the court failed to give effect to that admission. The Appellant argued that, having admitted the variation, the 1st Respondent could not disown it in the absence of any pleaded fraud, mistake, or duress. 17.Secondly, the Appellant contended that the trial court failed to consider the WhatsApp correspondence between the parties, which demonstrated that the 1st Respondent had accommodated the Appellant’s financial difficulties, continued negotiations instead of immediately repossessing the motor vehicle, and acknowledge the Appellant’s efforts to resolve the dispute. According to the Appellant, this conduct was inconsistent with the Respondent’s position that payment of Kshs. 300,000/= remained a strict requirement. 18.Lastly, the Appellant submitted that the trial magistrate failed to consider the timing of the repossession against the varied payment terms. The first installment under the varied agreement had fallen due on 25th May 2023, yet the motor vehicle had been repossessed on 23rd May 2023, despite the Appellant having made substantial payments. The Appellant therefore argued that the repossession had been premature and unlawful, and that the trial court’s failure to evaluate the documentary evidence and surrounding circumstances had resulted in erroneous findings. 19.On the fourth issue of who bears the cost of the appeal, the Appellant relied on Section 27 of the Civil Procedure Act Cap 21 laws of Kenya, that costs follow events. 1st Respondent’s Submissions 20.The 1st Respondent framed the first issue for determination as whether the learned trial magistrate erred in law and in fact by holding that the appellant had not paid the 1st installment of Kshs. 100,000/= by the time of repossession. The 1st Respondent submitted that the trial magistrate correctly found that the parties had validly varied the agreement by reducing the monthly installment from Kshs. 300,000/= to Kshs. 100,000/= and that the variation only affected the amount payable per installment and not due dates. 21.The 1st Respondent argued that the first installment of Kshs. 100,000/= remained payable on 25th April 2023, and that the Appellant’s contention that it fell due on 25th May 2023 was contrary to both the agreement and the variation. The Respondent argued that although it was undisputed that by 23rd May 2023 the Appellant had paid Kshs. 246,000/=, the material issue was that no installment fell due, thereby placing the Appellant in default. 22.The Respondent relied on the trial court’s finding that the variation was valid and binding only as to the amount payable per installment, and submitted that the Appellant had misconstrued variation by treating it as having also altered the payment dates. The Respondent further relied on Pius Kimaiyo Langat v Co-operative Bank of Kenya Ltd (2017) eKLR, for the principle that courts cannot rewrite contracts and must enforce the terms agreed upon by the parties. 23.The Respondent further submitted that the payment schedule expressly provided that the first installment fell due on 25th April 2023, and that after paying Kshs. 800,000/= deposit, the Appellant only made the next payment on 12th May 2023, confirming his default. The Respondent also relied on correspondence exchanged between 22nd April and 23rd May 2023, which showed that the Appellant was repeatedly reminded to pay the first installment but never disputed the due date, instead sought more time while pursuing a loan. 24.Accordingly, the Respondent submitted that the Appellant produced no evidence showing that the due date had been varied to 25th May 2023, and that the Appellant had defaulted in paying the first installment. Therefore, the 1st Respondent urged the court to find that the Appellant had failed to establish the first ground. 25.Further, the 1st Respondent submitted on whether the learned trial magistrate erred in law and in fact by holding that the Appellant failed to pay the 1st installments of Kshs. 300,000/= on the 25th April 2023 despite correctly holding that the monthly installment was varied. The 1st Respondent submitted that the 1st and 2nd grounds of appeal were similar as they both concerned payment of the first installment. While agreeing that the agreement had been varied to reduce the monthly installment from Kshs. 300,000/= to Kshs. 100,000/=, they argued that the Appellant had not demonstrated that the trial magistrate held that the Appellant was required to pay Kshs. 300,000/= by 25th April 2023. 26.Relying on paragraph 20 of the judgment, the 1st Respondent contended that the trial court expressly found that the variation only reduced the amount payable per installment and did not alter the due dates. Consequently, the Appellant was required to pay Kshs. 100,000/= by 25th April 2023 but had only paid Kshs. 66,000/= by 23rd May 2023, thereby remaining in default and rendering the repossession lawful. 27.The 1st Respondent further argued that there was no contradiction in the trial magistrates’ findings, as the only variation concerned the amount payable, not the payment dates. They maintained that the Appellant had misrepresented the judgment by alleging that the trial court required payment of Kshs. 300,000/= on 25th April 2023. 28.In addition, the 1st Respondent submitted that the agreement was unambiguous, the variation related solely to the amount of each installment, and the Appellant’s attempt to introduce ambiguity regarding the payment dates was misplaced. They therefore urged the court to dismiss this ground of appeal. 29.The third issue for determination was whether the learned trial magistrate erred in fact and in law to consider the pleadings and evidence adduced in entirety. The 1st Respondent submitted that the Appellant had failed to demonstrate which pleadings were allegedly not considered by the trial magistrate and that the ground of appeal was misplaced because there was no demonstration of any pleading or part thereof that had been ignored. They maintained that paragraph 2 to 8 of the judgment expressly acknowledged the pleadings and evidence tendered by both parties. 30.The 1st Respondent further argued that the trial magistrate properly considered the handwritten variation agreement. Although the agreement was admitted, it only varied the payment dates and did not alter the monthly installment amount. Accordingly, the Appellant could not rely on the variation to complying with the agreed payment terms. 31.The 1st Respondent also submitted that the Appellant was not demonstrating any issue relating to the date of payment but was instead arguing that the variation affected the payment date. The Respondent maintained that the trial magistrate could not be faulted to adopt the Appellant’s argument. 32.Further, the 1st Respondent submitted that the Appellant’s allegation that the trial magistrate failed to consider the WhatsApp correspondence was unfounded. According to the Respondent, it was no longer in dispute that the Appellant was to pay Khs. 100,000/= for each monthly installments, as the trial court having already pronounced itself on the issue. The Respondent maintained that the constant issue was whether the Appellant, was required to pay Kshs. 300,000/= or Kshs. 100,000/= in respect of each installment, was in default for failing to pay the first installment on 25th April 2023. 33.Finally, the 1st Respondent submitted that the Appellant had no proper grounds of appeal and that the appeal was a waste of judicial time and resources, as none of the grounds had been demonstrated or established. The Respondent therefore urged the court to find that trial court’s judgment was based on the evidence on record, applicable legal principles, and to uphold it as sound. 34.On the issue of who bears the cost of the appeal, the 1st Respondent submitted that the same be dismissed with costs to the 1st Respondent. 35.In the circumstances, I have considered the submissions from both the Appellant and the 1st Respondent and I therefore wish to have the following as issues for determination; B. Issues For Determinationi.Whether the learned trial magistrate properly interpreted and applied the terms of the varied Hire Purchase Agreement.ii.Whether the trial court erred in finding that the Appellant was in default and that the repossession of the motor vehicle was lawful.iii.Whether the trial court properly evaluated the evidence and submissions placed before it.iv.Who should bear the costs of the appeal. C. Analysis And Determination Whether the learned trial magistrate properly interpreted and applied the terms of the varied Hire Purchase Agreement 36.The Appellant contends that the learned trial magistrate erred in law and in fact by misinterpreting the handwritten variation to the Hire Purchase Agreement. According to the Appellant, the handwritten amendment reduced the monthly instalments from Kshs. 300,000/= to Kshs. 100,000/= and also had the effect of altering the commencement of the repayment schedule, with the first instalment falling due on 25th May 2023. The 1st Respondent, on the other hand, submits that while the parties validly varied the amount payable per instalment, there was no agreement varying the due dates, and consequently the first instalment of Kshs. 100,000/= remained payable on 25th April 2023. 37.The law governing the interpretation of contracts is well settled. The primary duty of the court is to ascertain and give effect to the intention of the parties as expressed in the contract itself. In Savings & Loan (K) Ltd v Kanyenje Karangaita Gakombe & Another [2015] eKLR, the Court of Appeal observed that where the language of a contract is clear and unambiguous, the court must give effect to its ordinary meaning and should not import terms that the parties themselves did not incorporate into the agreement. Likewise, in Corporate Insurance Company Ltd v Nyali Beach Hotel Ltd [1995-1998] 1 EA 7, the court emphasized that a contract must be construed as a whole, with each provision being interpreted in harmony with the others so as to give effect to the parties' intention. 38.Guided by these principles, this court has reconsidered the Hire Purchase Agreement, the handwritten variation, the evidence adduced before the trial court, and the rival submissions. It is common ground that the parties mutually agreed to reduce the monthly instalments from Kshs. 300,000/= to Kshs. 100,000/=. The dispute is whether that handwritten variation also altered the contractual date upon which the first instalment fell due. 39.A holistic reading of the agreement reveals that the handwritten notation expressly amended only the amount payable under the monthly instalments. The original payment schedule, including the due dates, remained intact and was not cancelled, amended, or replaced by any handwritten entry. Had the parties intended to postpone the commencement date of the repayment schedule, one would reasonably expect such an important alteration to be expressly captured alongside the amendment to the instalment amount. In the absence of such express language, the court is unable to infer that the parties intended to vary the payment dates. 40.The Appellant further invoked the doctrine of contra proferentem, contending that any ambiguity in the handwritten variation should be construed against the 1st Respondent, whose Managing Director authored it. However, that rule is one of last resort and only applies where, after applying the ordinary principles of contractual interpretation, genuine ambiguity persists. Upon examining the Hire Purchase Agreement and the handwritten amendment, this court is satisfied that no such ambiguity exists. The variation is explicit as to the reduction of the monthly instalment but silent regarding the due dates. Silence alone cannot be construed as effecting a variation of an express contractual term. 41.In the circumstances, this court finds that the learned trial magistrate correctly interpreted the varied Hire Purchase Agreement. The evidence supports the conclusion that the parties varied only the amount payable per monthly instalment and did not alter the agreed payment schedule. Consequently, this court finds no basis for interfering with the trial court's interpretation of the agreement. Whether the trial court erred in finding that the Appellant was in default and that the repossession of the motor vehicle was lawful 42.The Appellant submits that the learned trial magistrate erred in finding that he was in default of the Hire Purchase Agreement. He argues that by the time the motor vehicle was repossessed, he had already paid Kshs. 246,000/=, well in excess of the varied monthly instalment of Kshs. 100,000/=, and that the repossession on 23rd May 2023 was premature since the first instalment was allegedly due on 25th May 2023. The 1st Respondent maintains that the Appellant had already defaulted because the first instalment fell due on 25th April 2023 and remained unpaid by that date. 43.Having found that the handwritten variation did not alter the payment schedule, the next question is whether the Appellant complied with his contractual obligations. The record shows that although the Appellant paid the agreed deposit of Kshs. 800,000/=, the subsequent payments were made after the contractual due date for the first instalment. While it is undisputed that by 23rd May 2023 the Appellant had paid Kshs. 246,000/=, the issue is not merely the amount paid but whether payment was made in accordance with the agreed timelines. 44.The correspondence exchanged between the parties further demonstrates that the 1st Respondent repeatedly demanded payment of the overdue instalment while the Appellant sought additional time to source funds. Although the WhatsApp communication reflects ongoing negotiations between the parties, it does not disclose any agreement by the Respondent to waive the default or to vary the payment dates. Mere indulgence or negotiations cannot, without more, amount to a contractual variation. 45.Consequently, the learned trial magistrate cannot be faulted for concluding that the Appellant had failed to honour the payment obligations as they fell due under the agreement. Having established default, the Respondent was entitled to exercise its contractual right of repossession in accordance with the Hire Purchase Agreement. This court therefore finds no basis for interfering with the trial court's finding that the repossession was lawful. Whether the trial court properly evaluated the evidence and submissions placed before it 46.The Appellant further argues that the learned trial magistrate failed to consider the pleadings, documentary evidence, WhatsApp correspondence, and admissions made by the 1st Respondent's Managing Director regarding the handwritten variation. The 1st Respondent, however, submits that the judgment demonstrates that the trial court considered all the evidence before arriving at its conclusions. 47.As a first appellate court, this court is mindful that a trial court is under a duty to consider all the evidence placed before it before reaching its determination. In Galaxy Paints Co. Ltd v Falcon Guards Ltd [2000] eKLR, the court held that a court must determine the issues arising from the pleadings and the evidence adduced by the parties. 48.Upon reviewing the impugned judgment, this court notes that the learned trial magistrate expressly considered the Hire Purchase Agreement, the handwritten variation, the payment receipts, and the oral evidence tendered by both parties before concluding that the variation affected only the amount payable per instalment. The judgment also demonstrates that the court appreciated the parties' respective positions regarding the payment schedule and the circumstances leading to repossession. 49.Although the Appellant contends that insufficient weight was accorded to the WhatsApp correspondence and other documentary evidence, the mere fact that the trial court did not adopt the Appellant's interpretation of that evidence does not, by itself, establish that such evidence was ignored. An appellate court will only interfere where the trial court failed to consider material evidence or reached findings unsupported by the record. 50.Having independently re-evaluated the evidence, this court is satisfied that the learned trial magistrate considered the material evidence and submissions presented by both parties. The Appellant has not demonstrated any omission or misapprehension of evidence sufficient to warrant interference with the trial court's findings. Who should bear the costs of the appeal 51.On costs, both parties seek costs of the appeal. The Appellant urges the court to allow the appeal with costs, while the 1st Respondent prays that the appeal be dismissed with costs. 52.Under Section 27(1) of the Civil Procedure Act, costs are in the discretion of the court, although the general principle is that costs follow the event unless the court, for good reason, orders otherwise. 53.Having found that the appeal lacks merit, this court sees no reason to depart from the general principle governing costs. Accordingly, the appeal is dismissed with costs to the 1st Respondent. D. Disposition 54.Having carefully considered the Memorandum of Appeal, the Record of Appeal, the Judgment of the trial court, the rival submissions by the parties, together with the applicable law and the evidence on record, this court finds that the appeal is devoid of merit. Accordingly, this court makes the following ordersa.The Appeal is hereby dismissed in its entirety.b.The Judgment and Decree of the Senior Principal Magistrate in Kisumu MCCC No. E137 of 2023, delivered on 7th October 2025, are hereby upheld.c.The Appellant shall bear the costs of this Appeal, which are awarded to the 1st Respondent.d.Interest on the costs of the Appeal shall accrue at court rates from the date of taxation until payment in full.It is so ordered. Signed By/for:THE JUDICIARY OF KENYAHON. JUSTICE ABDI M. HASSANKISUMU HIGH COURT