Rachel Wafula v John Gachunga t/a Jowanga Enterprises

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAKURU** **CIVIL APPEAL NO. E253 OF 2024** **RACHEL WAFULA……………………………………………....APPELLANT** **VERSUS** **JOHN GACHUNGA T/A** **JOWANGAENTERPRISES……….............................................RESPONDENT** ***[Being an Appeal against the Judgment and Decree of the Honourable Resident Magistrate/Adjudicator Hon. D.M. Macharia issued on the 11th May, 2023 in*** ***Nakuru SCCCOM E056 of 2023]*** **JUDGMENT** 1. The background of this appeal is that the by a Statement of Claim dated 8th February, 2023, the Appellant sued the Respondent for judgement in the sum of Kshs. 920,000/= being monies allegedly owed to the Appellant by the Respondent following purchase and subsequent replacement of an engine that did not meet specifications. 2. The Respondent denied the whole claim through his Response to Statement off Claim dated 20th February, 2023 and further filed a counterclaim for the Appellant to collect the engine and pay an additional sum of Kshs. 380,000/= Or alternatively sell the engine and refund the Appellant Kshs. 920,000/= without interest. **Summary of evidence** 1. **CW1, Rachel Wafula**, testified that the delay in fixing the engine took 30 days and came to Nakuru after two months. After carrying two or so trips, it stopped working. She informed Mr. Maritim who came to Nakuru with a mechanic. She also called her mechanic who informed her that the engine was leaking and was for a different vehicle. 2. When she returned the engine, it was accepted by the seller. She had deposited Kshs. 920, 000/= for the purchase and wanted a refund. The engine was to be bought in Nakuru but was bought in Nairobi by Mr. Maritim. She denied knowing John Gachinga, Joseph Njuguna Mwenje and Nahashon Kirega and only dealt with Mr. Maritim who was known to her. 3. In cross examination she stated that she returned the engine after two months. The logbook shows the engine model as FVR. Mr. Maritim is her brother in law and she shared the logbook with him. She was aware the engine was sourced from Nakuru. She had given Mr. Maritim the contacts of her mechanic to compare with the Nairobi engines. She facilitated his travel via M-Pesa Kshs 5,000/=. 4. She stated that she paid for the engine after being informed it had been found in the Respondent’s shop and Mr. Maritim sent a video. It was transported to Kitale, fixed and a road test conducted. The vehicle was later driven to Nakuru but got stuck in Eldoret where Mr. Maritim told her it had gear issues. It was repaired. She was updated that the vehicle was doing well and was sent photographs. 5. After about two months the lorry was taken back to Kitale and after carrying stones for two days. Maritim went to Kitale with another man called “Daktari” and another to check the engine. She instructed them not to open the engine. It was not confirmed if the mechanics were from the dealer. She spoke to the Respondent through Maritim’s Phone who told her the engine was cheaper that what she had asked for and that she could take a bigger engine by topping up with Kshs. 380,000/=. 6. She agreed and that her only issue is the engine did not work. She confirmed that she was aware that the new engine was available and informed her mechanic Eli Otieno to look at the engine bit she informed him that it was not good. She objected the transfer of the engine to her vehicle. Her mechanic Eli denied asking for a Kshs. 50,000 and that Maritim confirmed never hearing about a bribe. 7. **RW1 Tom Maritim** testified that he had visited Mwangi’s shop and interacted with him. The Appellant was sourcing for an engine and sent him a copy of the log book. He contacted Nahashon “Daktari” who told him that he had gotten an engine. He relayed the information to the Appellant and she gave him a contact of someone in Nairobi. He did not trust them as the propel he knew were in Nakuru. The Appellant facilitated his transport and that she agreed to buy the engine when she paid for it. 8. They travelled to Kitale on 20th May, 2022 and the engine was fixed the following day. The lorry was then driven to Kimilili and later to Kitale, where the engine was cleaned to check for leakage, which confirmed that there was no leakage. They went to the Appellant’s home and informed her that the engine was in place. She told them to take it to Nakuru for body works. At Eldoret, the vehicle developed gear problems. They remained there for two days and he shared progress photos Exh 2-9. 9. After the repairs, they returned to Kitale on 27th June, 2022 where the lorry was handed to the Appellant. Few weeks later, the Appellant informed him that the engine was leaking to which he informed Mr. Mwangi. Mwangi gave Naashon and Joseph some parts to check the engine but found no leakage. The Appellant then spoke to the Respondent where they agreed an exchange would cost more and would take two months to procure. 10. The engine was removed after two weeks and returned Exh 7. The new engine was available after two and a half months. The Appellant sent Eli who came to the Respondent’s shop, tested the engine and said the engine was good. It was later that the Appellant informed her that Eli had said the engine was not proper. 11. In cross examination he confirmed that he is paid a commission for sourcing a client for the Respondent but for the Appellant’s case the was no commission. He stated that he was present when the Appellant spoke to the Respondent on phone on how much a bigger engine would cost. He added that he could not tell the kind of works the lorry did after being fitted with the engine on 20th May, 2022. He stated he could not tell whether the first engine was big or small. He did not hear about the bribe. 12. **RW2, John Gachinga Jason** testified that Nahashon and Joseph visited his shop and identified an engine. They later came back with Maritim who was known to him, tested the engine and were satisfied. They paid Kshs. 920,000/=. Later Mr. Maritim informed him that there was a leakage in the engine. He thought it was a small issue like gasket and sent mechanics who informed him that there was no leakage. 13. He later spoke to the Appellant who informed him that she was not comfortable with the engine and he informed her that he did not take products after 21 days Exh 9. She pleaded and out of respect for Maritim he agreed at an extra cost. The engine was returned and he proceeded to import another engine. He informed Maritim he had the engine. He came with a mechanic and they confirmed it was good. 14. He added that the Mechanic called him aside and asked for a Kshs. 50,000/= bribe. Later the Appellant told him that she could not take the engine. The engine never left his shop and that she owed him Kshs 380,000/=. 15. In cross examination, he stated that the Appellant did not ask for money when she returned the first engine. There were no conditions for return. The 2nd engine had bigger piston. He was never given a logbook. The engine was never fitted in the vehicle. A customer ought to test the engine before being dissatisfied. The mechanics came to his shop asked for an FVR engine and he showed them. He knew the mechanics and them being experienced mechanics they picked what they needed. 16. In re-examination he stated that the Appellant should take the engine or if she does not need the engine to give it to him to sell. He was never availed with a logbook and could not have known the type of vehicle the mechanics were to fit it. 17. **RW3, Nahashon Kirega** testified that on 17th May, 2022 Mr. Maritim contacted him asking if he could get an engine for an FVR lorry. He was sent the logbook and he found the engine at Mr. Mwangi’s shop. The real test is not at the shop but when fitted in a vehicle. They fitted it and conducted a road test to Kitale. The lorry was okay. Maritim informed him that there was oil in the exhaust which is normally caused by the gasket. They informed Mwangi to give them a gasket just in case there was a problem. 18. They travelled to Kitale, checked the vehicle in the presence of the owner and when he checked the engine, it was okay. He had used the logbook to settle for the engine purchased. He saw the vehicle when they were removing the engine. 19. In cross examination he confirmed that he was the one who chose the engine and there were about five FVR engine types. He settled on the one tested at the shop. It was his evidence that where a vehicle is fitted with an engine without modifications, if the engine was not for the vehicle the gear box would not have worked. 20. He stated that an oil leakage could have come from a broken gasket. An oil cooler gasket could leak if it is worn out or heat from the engine. A small engine will overheat but not affect the gasket. Heat from the engine goes to the radiator weight of a vehicle and does not affect the engine it affects the gear box, that is where the weight is transformed. 21. He stated that when the lorry was coming from Kitale it had gear box issue which was repaired. When the lorry left Nakuru it was loaded and working well. 22. In its judgment delivered on 11th May, 2023, the Trial Court dismissed the Appellant’s claim with costs to the Respondent. Further, it ordered the Respondent to refund the Appellant Kshs. 920,000/= upon the sale of engine 6SD14003499 and for the parties to report the progress within three (3) months. **The Appeal** 1. The Appellant being dissatisfied with the decision of the trial Court, lodged the present appeal by way of a Memorandum of Appeal dated 20th November, 2024 and on the following grounds. 2. ***The Honourable Magistrate/Adjudicator committed a legal and factual error by neglecting to mandate the Respondent to reimburse the Appellant for the purchase price of engine number 6SD14003499, amounting to KES 920,000, despite conclusively finding that the Respondent had indeed received the said amount from the Appellant and had returned the engine to the Respondent.*** 3. ***The Honorable Magistrate/Adjudicator erred both in law and in fact by not recognizing and taking into account that the Appellant and the Respondent had engaged in a contractual agreement for the acquisition of a specified engine.*** 4. ***The Honorable Magistrate/Adjudicator committed an error in both law and fact by neglecting to acknowledge and determine that the Respondent was liable for the sale of an engine which did not conform to the specifications furnished by the Appellant, thereby violating the Appellant's consumer rights.*** 5. ***The Honourable Magistrate/Adjudicator erred in both law and factual determination by not finding that liability transferred to the Respondent for selling a product that failed to meet the standards of satisfaction and fitness for a specified purpose, which was explicitly and implicitly communicated to the Respondent by the Appellant through the presentation of a logbook containing the specifications.*** 6. ***The Honourable Magistrate/Adjudicator made a factual error by concluding that the Appellant had engaged in a separate contract for the importation of engine 6SD14003499, while simultaneously dismissing the Appellant's claim on the basis of not having entered into any contract with the Respondent.*** 7. ***The Honourable Magistrate/Adjudicator erred in law and fact by failing to consider the Appellant's submissions in arriving at his judgment pronounced on 11th May, 2023.*** 8. ***The learned magistrate erred in law by failing to give concise statement of the case, a concise statement of evidence adduced by parties, the points of determination, the decision thereon and reasons of his judgment pronounced on 11th May, 2023.*** 9. The Appellant thus prays that: 10. **This Appeal be allowed.** 11. **The lower Court's finding be set aside.** 12. **The court declares the existence of a contractual agreement between the Appellant and the Respondent for the purchase of the specific engine.** 13. **The court declares that the Respondent is liable for selling an engine that did not conform to the agreed specifications and thereby violated the Appellant's consumer rights.** 14. **The court orders the Respondent to reimburse the Appellant for the sum of KES 920,000.00, being the amount expended for the purchase of the specified engine.** 15. **The Appellant be awarded interest on 5 above from the date of the filing of the suit in the lower court.** 16. **The Appellant be awarded costs of this Appeal, as well as cost in the lower court.** 17. **Such other relief as this Honourable Court deems fit.** 18. The Appeal was heard by way of written submissions. The Appellant filed her submissions on 4th December, 2026 while the Respondent filed his submissions on 4th February, 2026. **Appellant’s Submissions** 1. The Appellant in support of her Appeal submitted that the Trial Court’s reasoning was legally contradictory and fundamentally flawed. That the findings satisfied the elements of a valid agency relationship and a conclusion that there was a contract between the Appellant and the Respondent but the Court went ahead and held that no contractual relationship existed between the Appellant and Respondent. 2. The Appellant submits that a principle does not have to be present during a transaction and that contracts concluded through authorized agents bind the principle. She relied in ***Thiong’o v Tuti & another* *[2024] KEHC 11150 (KLR)*** where the Court held that the relationship of the Principal and Agent can only be established by the consent of the Principal and Agent. Further in ***Agricultural Finance Corporation v Lengetia Ltd* *[1985] KLR 765*** and ***Karsam Lalji Patel v Peter Kimani Kairu* *[2008] eKLR.*** 3. The Appellant further submits that all the elements of a valid contract were present. That by concluding no contract existed despite these findings, the trial court contradicted settled principles of agency privity of contract and the Law of Contract Act. 4. The Appellant cited ***Kenya Revenue Authority v Menginya Salim Murgani* *[2009] eKLR*** to argue that mutually inconsistent conclusions or findings unsupported by evidence justify appellate intervention. 5. Further, the Appellant argued that the trial Court misapplied the statutory provisions under the **Sale of Goods Act** under **Sections 14, 15** and **16 (a) and (b)** governing implied conditions as to fitness for purpose and merchantable quality despite evidence that the Respondent supplied the engine that failed soon after installation. 6. It further submitted that the trial Court shifted the evidentiary burden to the Appellant contrary to **Sections 107, 108 and 109** of the **Evidence Act.** The validity of an agency relationship does not depend on the agent's technical qualifications but on whether the principal authorized the agent to act on their behalf. 7. Further, the it was submitted that the adjudicator erred by dismissing the agency relationship based on Martim’s alleged lack of expertise even though agency depends on authorization not qualifications and the Respondent’s own witnesses lacked certification. The Appellant therefore cited ***Andrews Bros v Singer & Co. [1934]*** to argue that mere examination does not extinguish the buyer’s right to reject goods where defects or deviations are latent, technical or not easily detectable. 8. The Appellant maintains that her rejection of the replacement engine was lawful because the logbook clearly notified the Respondent of the lorry’s specifications and that the engine’s failure to power it proved unfitness for purpose breaching **Section 16 of the Sale of Goods Act** and the duty of merchantable quality. 9. The Appellant further cited ***Charles Mwangi Muriithi v Gathuthi Tea Factory Co. Ltd* *[2018] eKLR,*** ***Kenya Breweries Ltd v Kiambu General Transport Agency Ltd* *[2000] eKLR****,* and ***Givan v The Registered Trustees of the Holy Rosary Sisters [1964] EA 285*** to argue that once a prima facie case is made, the burden shifts to the seller, who remains liable if goods fail their known purpose and that delivery plus payment conclusively establish contractual obligations. **Respondent’s Submissions** 1. The Respondent opposed the Appeal and submitted on the following three issues: 2. **Whether the current Appeal is competent and legally tenable.** 3. **Whether the remedies awarded by the trial Court were legally sound.** 4. **Who bears the costs of this Appeal.** 5. The Respondent argued that the appeal is incompetent and legally untenable, contending that the Court lacks jurisdiction under **Section 38(1) of the Small Claims Court Act**. He urged reliance on the principle in **Owners of the Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd *[1989] KLR,*** which emphasizes that jurisdiction is everything and without it, the court must down its tools . 6. According to the Respondent, the appeal raises only factual issues and not matters of law as required under **Section 38 (1)** of the **Small Claims Court Act**. The Respondent cited ***Miriti v Mukobwa* *[2025] KEHC 14834*** *and* ***Momentum Credit Limited v Kabuiya [2022] KЕНС 13705 (KLR)*** to submit thatappeals from the small Claims Courts are strictly limited to points of law. 7. Regarding whether the remedies awarded were legally sound, the Respondent submits that the trial Court was right in making a finding that liability could not pass to the Respondent for the engine’s suitability because the Appellant through Mr. Maritim and mechanics independently chose, tested and fitted the engine without contracting the Respondent’s services. 8. That the Respondent was not privy to the specifications required for the engine and there is no legal ground of disturbing the trial Court's decision. That the Appellant neither described to the Respondent the requirements for the engine nor relied on the Respondent's skill or judgement in sourcing the engine therefore the implied condition as to fitness for purpose does not arise and we urge this Honourable Court to find so. 9. On costs the Respondent submits that the Appellant is not entitled to costs because her Appeal is a gross abuse of the Court process. **Analysis and determination** 1. This Court has considered the record of appeal, the arguments and the applicable law. This being an appeal from the Small Claims Court , this Court is guided by the provisions of **Section 38 (1)** of the **Small Claims Court Act** which stipulate that:- ***“A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law.”*** 1. Consequently, this Court’s mandate is confined to points of law. It is settled that the Court cannot re-evaluate or reassess factual findings unless such findings disclose a misdirection in law. This Court is persuaded by the decision in ***Fidelity Insurance Co. Ltd vs. Korir* [*2024] KEHC 3365 (KLR),*** where Wananda J stated: - ***“….the High Court while handling an appeal from the Small Claims Court, is not permitted to substitute that court’s decision with its own conclusions based on its own analysis and appreciation of the facts unless the findings are so perverse that no reasonable tribunal would have arrived at them.”*** 1. On the scope and duty of an appellate court where the law limits review of facts, the Court of Appeal in **Mwanasokoni v Kenya Bus Services Ltd *[1985] KECA 82 (KLR)* *(***A.R.W Hancox, J.O NyarangiandJ. M Gachihi JJA***)*** cautioned against interference with factual determinations absent error of law. 2. The Respondent has argued that this Court lacks jurisdiction and maintains that the grounds of appeal and complaints against the Trial Court are purely factual. 3. However, the grounds of appeal reveal that although the grounds are substantially fact laden, they nonetheless disclose questions of law within the ambit of **Section 38(1)** of the **Small Claims Court Act**. 4. In particular, they implicate the proper interpretation of the law contract principles including privity, the principles under the law of sale of good as to fitness for purpose as well as the law of agency and its binding effect. They further implicate the duty of the courts to provide reasons for their decisions. 5. Accordingly, this Court finds that the appeal raises points of law and is properly before it. 6. Consequently, and from the material before this Court, the following are the issues that arise for determination: - 7. **Whether a contractual agreement existed between the parties for the acquisition of the specified engine.** 8. **Whether there were mutually inconsistent findings in the impugned judgment on the existence of a contract that amounted to an error of law.** 9. **Whether principles of the Sale of Goods Act on fitness for purpose and satisfaction of contractual standards were applicable and binding.** 10. **Whether the trial Court failed to give reasons.** **Whether a contractual agreement existed between the parties for the acquisition of the specified engine.** 1. On the question of contractual agreement, the trial Court held that the Appellant had no contract with the Respondent for purchase of a specific engine, of a specific model and fit for a particular vehicle or task. RW1 confirmed he was acting on the Appellant’s instructions, using the logbook and mechanics to identify and procure the engine. 2. The Appellant argues that by entrusting RW1 with the authority to negotiate and procure the engine, an agency relationship was legally established. In ***Verhoef v Hass Consult Limited; Brookside Pearl Limited (Third party)* *[2024] KEHC (KLR)*** Prof. Sifuna J affirmed the principle that in the law of agency, ***“he who does anything through another, does it himself.”*** 3. This Court is satisfied that the acts of an authorized agent bind the principal and establish direct privity of contract between the principal and the third-party seller. Consequently, the resulting contract is enforceable not only against the principal but also by the principal against the third‑party seller. 4. Applying this principle, RW1 acted squarely within the authority conferred by the Appellant. He procured the engine on her behalf and the Respondent supplied the engine and accepted consideration. These acts although performed through RW1, were in law the acts of the Appellant herself. 5. Once the Respondent accepted payment and supplied the engine, a contractual nexus was established between the Appellant and the Respondent. This Court is satisfied that a binding contractual obligation existed between the Appellant and the Respondent. **Whether there were mutually inconsistent findings in the impugned judgment on the existence of a contract that amounted to an error of law.** 1. The Respondent faults the trial Court for delivery a contradictory judgment. The grievance is that on the one hand, the trial Court dismissed the Appellant’s claim on the basis that no contract existed between her and the Respondent. On the other hand, the same Court ordered the Respondent to refund Kshs. 920,000/= upon the sale of engine number 6SD14003499. 2. This Court notes that in Paragraph 12 of the judgment, the trial Court stated:- ***“From the evidence it is deducible that the engine that was purchased was so done at the advice of independent mechanic and not the Respondent. the Respondent had no contract with the respondent for purchase of a specific engine, of a specific model and fit for specific vehicle which was to be commissioned a for a specific type of work. All that mattered was that RW1 was aware of what model of engine he was looking for. Having been armed with a logbook, he knew the worked he was engaged and was fully advised on what to buy by his mechanic.*** 1. However, in paragraphs 27 and 28, the Court found in favour of the counterclaim and ordered a refund of Kshs. 920,000/= upon sale of the engine. While the Court tied the Respondent’s role to the mere delivery of the engine identified by RW1, the reasoning is a contradiction. 2. The Order for refund issued by the Court arose from the Respondent’s own prayer in his counterclaim, where he sought to sell the engine that remained in his shop and thereafter refund the Appellant’s money. 3. While this explains the basis of the refund, it does not cure the contradiction between rejecting the existence of a contract and simultaneously granting relief that presupposes it. 4. This Court is persuaded that the trial Court’s reasoning was inconsistent as having expressly held that no contract existed between the Appellant and the Respondent, it could not order restitution of the purchase price. The two findings cannot stand together. The reasoning was error of law. **Whether principles of the Sale of Goods Act on fitness for purpose and satisfaction of contractual standards were applicable and binding.** 1. Having found that a contractual relationship existed between the Appellant and the Respondent, the next question is whether the implied conditions under **Section 16** of the **Sale of Goods Act** were engaged. **Section 16** of the **Sale of Good Act** provides as follows: ***"Subject 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:*** 1. ***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*** 1. ***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."*** 1. In the present case, the mechanics acting under the Appellant’s instructions through her agent RW1, selected and fitted the first engine. The choice of the first engine was made by the Appellant’s representatives. The Respondent’s role was limited to supplying the engine they selected. The Appellant did not rely on the Respondent’s skill or judgment and therefore, the implied conditions of fitness and merchantable quality were not engaged. 2. As for the second engine, the Appellant and the Respondent only spoke by phone later, agreeing on the possibility of a bigger engine following a defect in the first engine at an additional cost of Kshs. 380,000/=. 3. The record shows that the Respondent imported the second engine 6SD14003499 and that the Appellant’s mechanic Eli is the one who allegedly declared the second engine unsuitable. The said mechanic did not testify and the engine was never fitted into the lorry. The trial Court also noted that there was no expert report to show that the engine 6SD14003499 was defective. 4. In the absence of such evidence, this Court cannot conclude that the engine was unfit for purpose. The trial Court was correct to observe that liability would have transferred to the Respondent had the Appellant demonstrated that the Respondent was aware of the specifications and had delivered an engine outside those specifications. 5. Accordingly, while contractual privity was established through agency, the statutory implied conditions of fitness for purpose and merchantable quality under **Section 16** were not triggered. ***Whether the trial Court failed to give reasons*** 1. The trial Court has been faulted for allegedly failing to give reasons, provide a concise statement of the case, evidence, points of determination, decision and the reasons that led to trial Court’s the decision. 2. It is appreciated that **Section 17** of the **Small Claims Act** gives the Court the power to control its own procedure while factoring in principle of natural justice, while **Section 32** of the **Act** provides that the Court shall not be bound wholly by the rules of evidence or the and **Section 34** of the **Act** requires expeditious disposal of claims. 3. Further, in ***South Nyanza Sugar Co. Ltd vs. Omwando* *[2011] KEHC (KLR)*** Asike Maakhandia J (as he then was) the held: “***A judgment must comply with the mandatory provisions of order 21 rule 4 of the Civil Procedure Rules which provide that a judgment in a defended suit shall contain a concise statement of the case, points for determination, the decision thereon and reasons for such decision….*** ***Any judgment that does not contain the aforesaid essential ingredients is not a judgment and an appellate court will frown at such a judgment and indeed impugn it as I hereby do. This ground alone would have been sufficient to dispose of the appeal. “*** 1. It is not disputed that the Small Claims Court is clothed with autonomous control over its own internal procedures. However, the **Civil Procedure Rules** cannot be ignored. 2. From the record, the trial Court set out the case with clarity, distilled the issues for determination, analysed those issues within the applicable law and gave the reason for reaching its conclusion. 3. In the premises, this Court finds that the appeal partially successes in that the trial Court erred in denying the existence of contractual privity and delivering mutually inconsistent findings. 4. As to the final award for refund, the trial Court ordered a conditional refund tied to the Respondent’s counterclaim, directing that the engine be sold and the proceeds used to refund the Appellant. 5. This Court holds that the refund order, was properly anchored and finds no reason to disturb it. 6. However, this Court finds that having delivered the judgment, the trial Court was *functus oficio* and therefore could not proceed to issue the orders it did that : ***“ the parties to report the progress within three (3) months.*”** 7. Consequently, this court directs: 8. **The trial Court’s judgment delivered on 11th May, 2023 is hereby set aside and substituted with an order that within three (3) months of this judgment, the Respondent shall sell the engine and reimburse the Appellant the sum of Kshs 920,000/= being the amount expended for the purchase of the specified engine.** 9. **In event none compliance with the above , the Respondent shall reimburse the Appellant the sum of Kshs. 920,000/= unconditionally and not later than one (1) month after expiry of the three-month period.** 10. **Since the appeal has partially succeeded , each party to bear his own costs of the appeal and in the Small Claims Court.** 11. **Dated and signed at Nairobi this 1st Day of September , 2026.**  **PATRICIA GICHOH** **JUDGE** **Delivered at Nakuru this 14th Day of September, 2026.** **………………………....................** **DR. JOSEPH SERGON** **JUDGE**