Gragan (K) Limited v General Motors (K) Limited & Ryce Motors (K) Limited [2016] KEHC 3153 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO.  1598 OF 1996

GRAGAN (K) LIMITED  ………………..……….….…PLAINTIFF

VERSUS

GENERAL MOTORS (K) LIMITED ……….……1ST DEFENDANT

RYCE MOTORS (K) LIMITED  ……….………..2ND DEFENDANT

JUDGMENT

1. The plaintiff  Gracan (K) Ltd  sued  the defendants  General Motors(K) Ltd  and Ryce  Motors  Limited  vide a plaint  dated   1st July 1996  and filed in court on the  same day, claiming for  special damages  for loss of user, cost of repairs  of  a motor vehicle, general damages  for breach of contract, costs   of the suit  and interest on special damages  and costs.

2. In the  said plaint, the plaintiff pleaded  that it is a  limited  liability company and the records show  that it is engaged  in transportation  of goods   since  1991, after  commencing  its operations in  1989.

3. The 1st  defendant is described  as a limited  liability company engaged  in the business  of  manufacturing, assembling, marketing  and or distributing  Isuzu Lorry trucks  and other motor vehicles   within the Republic of Kenya   and elsewhere.

4. On the other hand, the 2nd  defendant  is also  described as a limited  liability company  duly incorporated in Kenya  and  was at all  material times the 1st defendant’s authorized  dealer  and  or agent   and engaged  in  motor vehicle  business  similar to that  of the  1st  defendant.

5. The plaint  alleges that  on or  about the  29th day  of August  1995  the plaintiff entered  into an  agreement  with the second  defendant whereby  the second  defendant agreed  to sell and  the plaintiff agreed to buy two Isuzu trucks  model CXZ registration Nos KAG 417B and  KAG 418B at an agreed price of  kshs  11,500,000.  That  the fundamental period or  implied  terms   and conditions of the said  agreement  as  warranted by the defendant  were that:

i. The said vehicles   were of a merchandise  quality.

ii. The plaintiff  was entitled  to a  six months  and or  40,000 kilometers  warranty of  full indemnity  from the  1st and  2nd  defendant for  any defects ,repairs  and loss among  in respect  of the said motor vehicle in the ordinary  course  of their operation.

6.  It was alleged  that on or about  the  13th day of October  1995   while  being driven  carefully and diligently by the plaintiff’s driver/agent  along Nairobi- Meru Road  and  within one month of the date of its  purchase, motor vehicle  registration No.  KAG  418B  developed  serious  and fundamental  engine  defects.  As a result  thereof, the motor vehicle became  useless  and incapable  of propulsion after covering  a mere 3175  kilometers, in a breach of the fundamental  condition of the agreement, and despite  efforts  to repair it, it   was out of business for  162 days. The plaintiff  blames the defendants  jointly  for breaching  the terms of the agreement  by:

a) Selling   a motor vehicle  that  was not  fit for  use for the purpose for which it  was sold.

b) Selling  a motor vehicle  that  was not  of merchantable  quality.

c) The motor vehicle not satisfying conditions or terms of the warranty.

d) Selling a motor vehicle that had a  fundamental factory defect. The plaintiff therefore  claimed for:-

a) Loss of user  for  162 days  x  25,000 period …..Ksh     4,050,000. 00

b) Cost of   the  repairs……………………….........….Ksh        562,452. 85

Total  Ksh    4,612,452. 85

c) General damages for breach of contract.

d) Failing to indemnify or compensate the plaintiff for loss and damages in accordance with the terms of the warranty or agreement.

e) General damages  for breach of contract

i. Costs  of the suit  and

ii. Interest on special damages and costs.

7. The defendants entered a joint appearance dated 12th August 1996 through the firm of Mukuria and Company Advocates.The firm  of  Asike  Makhandia  entered a separate  appearance for the  2nd defendant on 9th August  1996  and filed defence  on 26th August  1996, stating that  save that it   was acting  as  an agent  of the  1st defendant, and not  as a dealer, all other  allegations against  it  were denied.  Further, that it  was  authorized  by the 1st  defendant to  make the contract  referred to, which  contract  was binding  on the first defendant   and pleaded  contribution  or indemnity  if  at the  end of the  trial the  defendants   are found  liable  to pay  jointly and severally.

8. Particulars of loss and damage were denied in toto and the plaintiff put to strict proof.  The record  shows that  albeit  the firm of Mukuria  did enter  appearance  and file defence  on behalf of both defendants  on 22nd  August  1996, it had to seek leave  for filing of  an amended  memorandum of appearance and defence to reflect  that it  was acting for the 1st  defendant only.  The amended  memorandum of appearance  is dated  27th January  1997  whereas   the amended  defence  was  filed on 20th January  1997.

9. On 17th February 1997, the plaintiff sought  to have the  1st defendant’s  amended  defence struck  out for  disclosing  no reasonable  defence, as it   was a mere  denial, scandalous, frivolous and vexatious, may prejudice, embarrass or delay  the  fair trial of the action and for being  an abuse of the court process which application dated   17th February  1997 was , by a ruling delivered don 27th May 1997 by Honourable  G.P. Mbito J ( as he then was )  dismissed with  costs and the suit  allowed to proceed  to hearing on merit.  On 5th June 1997 the plaintiff filed a notice of appeal with the intention of challenging that ruling of Honourable G.P.  Mbito but there is nothing to show the progress of the intended appeal.

10. Summons  for directions  under the  old  Civil Procedure Rules   were filed  and taken on  21st February  2000 with agreed issues being  filed on 11th February  2000. The case  then commenced  for hearing  before Gacheche J on   25th January  2001  who only  heard  PW1’s evidence  in chief  in part which   evidence was restarted  before Kubo J on 12th January 2006.  Honourable Kubo J could not conclude the hearing.  Many other judges who came after  him and  before me  including  Honourable Justice Mary Angawa  heard part  of the evidence  after the  parties  agreed to  continue from where  the case   was left   by Honourable  Kubo J on 5th December  2012, six years  after  the matter  commended  for hearing  before  Honourable  Kubo J.  The proceedings were typed and parties did agree that they were in order.  Honourable Angawa  J did  commence the defence  hearing  which closed  on  5th December  2012  with all parties  agreeing  to file written submissions  and   to appear  for further  hearing  on 5th February  2013  at  9. 00am.

11. Regrettably on 5th February  2013  Honourable Angawa J  was not available  and the matter  was  listed before  Honourable Waweru J.  In the  meantime, all parties  did infact  file their  written submissions and on 4th November  2013  the matter landed in the hands s of  Honourable  justice  Onyancha J who  reserved  it for  judgment for  10th February  2014  at 9. 00 am .  On 10th February 2014 the judgment   was postponed to 9th April 2014.

12. However, on four consecutive  occasions  1st April, 2014, 9th April 2014, 19th June  2014  and 21st  July 2014,  Honourable Onyancha J  was unable  to deliver a  judgment  on the grounds that  the  defence evidence   was sketchy, illegible  and or made  up of hearsay and incapable of being  understood.  The learned Judge therefore directed that the matter be mentioned before Waweru J on 23rd July 2014 for directions.  Honourable Waweru J was seized of the matter on 23rd July 2014 to enable him render a judgment. Regrettably, by 30th September  2014  when the  matter came before  him, Honourable  Waweru J had been  transferred to Muranga High Court Station  hence he placed  it for mention  on 22nd October  2014  before the presiding  judge of the Civil Division for further directions.  That is how this age old matter of nearly twenty years landed into my hands and court for determination.

13. I must  therefore confess from the onset  that I have not had  a chance to hear  or see the witnesses  as they testified, but I shall endeavour to put in my best  to appreciate  the evidence  on  record, assisted   by the parties’  written  submissions and the law to endeavour to do justice  to all  the parties.

Evidence of the plaintiff

14. Before   commencement of the hearing, the plaintiff counsel sought for an amendment to the plaint regarding   special damages  which was allowed by Gacheche J, enhancing the same to  as follows;:

(ii) Repair costs 1,370,366/50 instead of shs 562,452/85.  The total special damages therefore reads 5,420,366. 20 instead of the earlier amount of shs 4,612,452/85.

15.  PW1 Richard Nyaos Buget testified on oath that he  was an Electrical Engineer operating various businesses.  He was the Managing Director   for the plaintiff company and was also a director   in the said company which carries out the business of transportation of goods since 1991.  That the company started its operations in 1981. Further, that the plaintiff had a fleet of ten heavy commercial motor vehicles, including motor vehicle registration No.  KAG 418 B Isuzu CXZ model with the capacity to carry a maximum load of 15 tones and pull a 15 tones trailer.

16. PW1 testified that in September 1995, the plaintiff bought 2 motor vehicles Isuzu CX2 registration Nos.  KAG 417 and KAG 418B at price of shs 11,500,000 at an agreed 5,750,000/- from Ryce Motors Ltd – the 2nd defendant herein.  He produced receipts to that effect and the sale agreement. That in October 1995, one of the motor vehicles registration No.  KAG 418B broke down which break down he attributed to breach of implied terms as to quality and warranty.  He stated  that the 2nd defendant  is the authorized dealer of the  1st  defendant with express  and ostensible  authority  to sell and service  the 1st defendant’s motor vehicles  and related  spare  parts and accessories  as shown by the  Dealer  Sales  and Service Agreement  between the  1st and 2nd defendant  -produced in court  as defence exhibit  1.  The witness produced the Handing over Certificate dated 29th September 1995 as P exhibit No. 2.  He stated that on 13th October 1995, one of the purchased motor vehicles KAG 418B broke down while being driven between Nanyuki and Meru while carrying goods enroute from Mombasa to Meru.  That he had witnessed the loading of the said goods which were 15 tones of fertilizer   from Mombasa as it left for Meru.  He was   called by the driver of the said motor vehicle, a Mr Stephen Kiberenge who informed PW1 that the motor vehicle had broken down and could not move.  The witness   PW1 then called the 2nd defendant and  notified them of the breakdown  and they advised  him to call Associated Motors  who were  their authorized dealers, who  responded and towed the  motor  vehicle to their  depot  in Meru.  PW1 followed the motor vehicle to Meru to   establish its condition after about 2 days.  On arrival he learnt that some part of the motor vehicle had failed, which failure was attributed to the manufacturer’s fault.  The motor vehicle   was eventually repaired after two months and it was released for use by the plaintiff, who prepared a schedule of number of days that the motor vehicle stayed out of work.

17.  The PW1 further narrated that no sooner had the said motor vehicle been released to the plaintiff to start transportation work, than it broke down enroute to Nairobi.  He produced  the  schedule  dated  14th May 1996 , as PEX4 showing  that the motor vehicle  stayed at  Associated Motors  from 13th   October  1995- 2nd December, 1995.  The motor vehicle   was returned to   the workshop for further repairs.  It remained therein until 14th April 1996 for a total number of 162 days.

18. According to PW1, since the motor vehicle had broken down during the warranty period, then the defendants  ought to have  repaired  it free of  charge  but  that  the 1st  defendant  took too long to decide  that is why the  plaintiff decided to pay  for the repairs  which amounted  to shs  1,370,366. 50 .  He produced statement of  account from Associated Motors Ltd containing No. of invoices, dates, and the amount together  with receipts   for payments  made all  totaling shs  853,744/75   due and  owing as  P EX 5.

19. PW1 further  testified that the plaintiff   was  advised  by the 1st  defendant  that they(plaintiff) could pay ½  the cost of repairs as the 1st defendant waited for the confirmation of the facility of parts from Japan, which repairs  turned out to be very  costly.

20. The plaintiff therefore claimed for loss of user of the motor vehicle in the sum of (a) 25,000 per day for 162 days   totaling shs 4,050,000 (b) cost of the repairs shs 1,370,366/50.  According to PW1, the  repairs  were not  carried out within reasonable time   as a  result of which  they incurred losses  as they   were in business  and as the motor vehicle  was purchased on loan from the financers  who paid  the purchase price  to the  defendants  directly.

21. PW1 further  testified that  even after  it   was repaired, the motor vehicle  in question broke down several times  after the initial breakdown and that after a serious breakdown, Associated  Motors declined to touch the  motor vehicle  again and he approached Mr George  Woods  of the 1st  defendant  who went to  examine the motor vehicle  engine  personally  and instructed  Associated Motors  to repair  the motor vehicle  and it  was done at no fee.

22. PW1 further  contended that  even after  the motor vehicle was repaired, he  insisted that the whole  engine  be replaced  but this s request was declined  and the  repairs   were carried  out on the  existing  engine  which again  led to the  motor vehicle  breaking  down.  When they returned it, it  was  repaired and again it   failed  so they replaced  the engine  with a  second  hand engine  which never  failed  and the  motor vehicle  worked very well.  That on the occasion when the suit vehicle left  Meru workshop and  was driven  direct  to Associated Motors  workshop in Nairobi where it  stayed for  one month  and upon its  release, he gave it to a different driver, Mr Mutai and after  about  10,000 kilometers, it  had a more  serious engine breakdown  than the  first breakdown  at Meru in that there  were cracks in the engine  block after Machakos  junction towards Mombasa.  PW1 went to the scene  with a service  and maintenance mechanic  as the vehicle  was under a warranty and again  they towed it to Associated  Motors work shop who repaired  it at no cost to the  plaintiff.

23. That the motor vehicle never performed well even after the latter repairs and that the plaintiff’s request for a new engine was turned down.  He produced a bundle of 8 receipts (a) – (h) as P EX 6 being repair charges.  PW1 testified that the loss of  user  was in  respect of  hire as  the plaintiff  hired  out to  International NGOs KTDA and other  general companies  and individuals to do the work which the suit motor vehicle was supposed to perform.  He produced KTDA contracts  for hire for  transportation  of fertilizer  for shs  35,000 per day, Ecumenical  Action in Sudan at  66,000 per day  and stated that on average, they earned  shs 25,000/- per day  taking into account  the  fact that  Sundays  were  rest days.

24. In cross examination by Mr Mukuria  Advocate for the 1st  defendant, PW1  maintained  that the  loss of user  claimed   was shs  25,000/- per day although they earned  more.  He confirmed that  PEX 8  an agreement dated  21st  September  1997  was a general agreement  and not  specific  to any motor vehicle  and that clause  1:2:1 of the said agreement set out  quantities  of goods to be transported, with clause  1:3 thereof setting out payment once  the  quantities  are transported.  He further  confirmed that  PEX 7 dated  22nd  July  1996   was  another general agreement  for transportation with KTDA  whose terms  of payment  were set out in clause  4 thereof.  He stated that  a new engine  was  fitted towards the end of  1996  after  which the motor vehicle  worked perfectly well  and when  PEX 8  transportation agreement   was entered  into, the suit motor vehicle  was back on the road  and functioning properly and that the company fulfilled its obligations under the general agreements.   He maintained  that as the motor vehicle was still under warranty, the defendants were under an obligation to pay repair  charges  and that the plaintiff paid for  the repairs  because   the 1st defendant  said they were investigating  why parts of the engine failed by taking parts to Japan and asked the  plaintiff to pay 50% of the cost as they investigated  which the  plaintiff obliged.  He maintained that some  receipts  only reflected  company (Plaintiff) name while  others  referred  to the subject motor vehicle KAG  418B  and conceded that  receipts bearing  dates  14th January, May 1998 and for  1997  would have  no bearing  on repairs  to KAG 418B, subject   matter  of this suit.  He conceded that he must have included such receipts by mistake.  He further admitted that a receipt not bearing the plaintiff company name or motor vehicle KAG 418B would not relate to repairs to KAG 418B.

25. PW1 maintained under what seemed to be  intense cross examination that motor vehicle KAG 418B   was under warranty but that he was unaware that loss of user was excluded from any claim on breach of warranty.  However, upon being shown the  exclusion  clause  on loss  of use, he  maintained that  that clause would only apply if  repairs  were done  within a reasonable  time.  He further maintained that the breakdown was due to the engine manufacturer’s defect.  He further responded that the plaintiff had not sued the manufacturers of the engine but sued the 1st defendants who had sold the motor vehicle and provided the warranty.

26. On being cross examined by Mr Otenyo Advocates  for the  2nd defendant, PW1 stated that  they had  sued Ryce  Motors  although  the latter  were not manufacturers  of the  subject motor vehicle KAG 418B, but were sale agents for the 1st defendants  and that they  (Ryce Motors) are  the ones who  received purchase  price for the  purchased motor vehicles.  PW1 responded  that the motor vehicle  KAG 418B broke down on 13th October  1995  and on  being shown  PEX 8 general agreement  for hire, he stated that  it  was made  about  1-2 years after the motor vehicle had  broken down.  The same applied to PEX 7 agreement with KTDA which he stated was made after the motor vehicle had broken down.  He maintained that the two agreements showed the earning capacity of motor vehicles of similar capacity as KAG 418B.

27. In re-examination by Mr Omotii advocate, PW1 maintained that the warranty was between the plaintiff and 1st defendant as manufacture or supplier, which warranty was that the motor vehicle   was free from defects in material and workmanship under normal use and service.  Further, that the defendants had never claimed that the suit motor vehicle had been put into improper use or service.  He maintained that on loss of use, the plaintiff sued the defendants because they did not repair and or deliver the motor vehicle within reasonable time, after it broke down. That it took the defendants 162 days   to deliver the suit motor KAG 418B to the plaintiff.  According to PW, reasonable period would have been 3 days to 7 days.

28.  When questioned by the court, the witness PW1confirmed that the PEX 8 is dated 21st July 1997 whereas PEX7 is dated 22nd July 1996.  He stated that KAG  418B was  back on the road  towards the  end of  1996 and that  the agreements he produced   were general contracts  giving  examples  of the earning  capacity of motor vehicles   similar in capacity as KAG  418B.  He  stated that  price negotiations for the purchase of the suit motor vehicle   was  done with  Ryce  Motors  who also delivered  the motor vehicle  to the plaintiff  and gave out a Handing over Certificate  produced as  PEX 1, although  there  was  nothing  to show that  Ryce Motors  were dealing  on behalf of any other  person, and that  Ryce  Motors  were sued  because  they sold  a motor vehicle  which was  not fit  for the purpose for  which it  was sold.

29. The plaintiff also called PW2 Stephen Kiberenge, who testified that at the material time, he worked as a driver with Swiss Foundation for Mine Action, Sudan, although the foundation had an office in Nairobi.  He stated that he had been a driver since 1991 and drove motor vehicle registration NO.  KAG 418 B an Isuzu lorry between Nanyuki and Meru.  He stated that PW1 was his employer and director of the plaintiff company.  That while he   was driving the suit motor vehicle KAG 418 B from Mombasa to Meru via Nairobi carrying fertilizer which the plaintiff had been hired to transport, and a month into driving the said motor vehicle, on 13th October, 1995  after staying overnight  at Kerugoya and  examined the  motor  vehicle  and finding it  to be in order  he ran the engine  for  30 minutes and drove  for  30  minutes to Nanyuki but near  Isiolo junction to Meru, while  descending in gear  No. 3, he heard  a knock/noise  in the engine.  He pulled the vehicle aside and stopped, opened the cabin and checked and saw smoke from the engine.  He found a rod connecting the engine and injector pump broken whereas the front cover of the engine had cracked and oil was leaking.  He switched  off the  engine, took a  matatu to Meru town  and called  the  plaintiff’s office in Nairobi who directed  him  to Associated  Motors   Meru Branch Manager.  He went to Associated Motors, Meru where he met the manager and reported the problem.  They gave  the witness a foreman  mechanic called  Njenga who went  with  the PW2 to the  scene  where  the motor vehicle  had broken  down  and the said Njenga  upon  checking the motor vehicle  remarked  that it  was a  “manufacturer’s fault” and  the motor vehicle  was towed to Associated Motors Meru after  2-3  days  with the plaintiff meeting  towing charges.  PW2 collected  the motor vehicle one( 1) month  after it  was  repaired  but it  again  broke  down  at Matuu when the  engine  pulley loosened.  A mechanic from Nairobi Associated Motors went to their rescue and drove the motor vehicle to Nairobi Associated Motors.

30. That following the frequent break downs to the suit motor vehicle, the witness was given a different   motor vehicle KAG 417 B Isuzu CX2 same as KAG 418B bought on the same day.  He stated that KAG 417B never experienced any problem.  He maintained that for  the  2 years  he had driven  heavy commercial vehicles, he had  never experienced  such a problem with motor vehicles and that he had never  been blamed for  badly driving motor vehicle  registration No.  KAG 418B.

31. On being  cross examined by Mr Mukuria  advocate for the  1st defendant, PW2  stated  that he obtained  his driving  license class ABC in 1991 after which  he worked for  Kyondo New Service  as a driver  for  3 months.  He stated  that on the material day when the motor vehicle broke down, he  was driving  at 20-30 kilometers per hour descending  and  in gear  3  which  would not  strain the engine.  That he  was carrying 15 tonnes of fertilizer.  He maintained  that he heard  a knock in the  engine  and when he  stopped  and checked  he  found  a broken  rod  and oil leaking  through  a crack on the engine  with smoke  emanating  from oil  touching  the hot metal.  That  even  after  the motor vehicle  was repaired  at Associated Motors  in Meru, the engine  did not  run smoothly  and  when he  reached  Matuu, the pulley  got loose  and the motor vehicle  only moved  after the  mechanic  came and fixed the pulley, and  the said  mechanic  drove the  motor vehicle  from Matuu to Nairobi.  That from hence, he was given a different motor vehicle to drive.

32. In cross  examination by Mr Otenyo  advocate  for the  2nd defendant, PW2 stated that  before  driving  the suit motor vehicle, he  was driving  other  Mitsubishi, Izusu  and Mazda  trucks.  That  Isuzu CX2  had  just entered  the Kenyan market  so KAG  418B was  his first  Izusu  to drive  and that he  was its first  driver.  He  maintained  that he  heard noise  from the  engine  and tried  to start the engine after  stopping but  after seeing  smoke  and broken  rod  and crack, he switched  it off  and never  tried  to start  it again.  He denied being negligent or causing the faults found in the suit vehicle.  He stated  that after  he  was relieved  of the motor vehicle, Mutai  was given  the said motor  vehicle  but denied  that he  did not  know how  to handle  the motor vehicle  causing  the faults.

33. In  re-examination by Mr  Omotii advocate, the  witness  maintained  that he  was in  gear  No. 3  when going  down the slope, and  not in gear 4  or  5  because  of the slope and  that  he only restarted  the engine to  establish  where  the smoke  was coming from  and that,  that in itself would  not cause  the damage alleged  by the defense  counsel.  He stated that he drove the motor vehicle from Meru to Matuu then the mechanic took over   and that the engine remained rough.  He stated that after he was given another motor vehicle of the same model, he drove it without any problem.

34. At  the close  of the plaintiff’s case on  26th November  2007, the   1st defendant  called its one  witness on 23rd June 2008, Mr Patrick Wanjohi Mwangi who testified as DW1 that he  worked for the  1st defendant as a motor  vehicle  workshop  supervisor  and his  work entailed  supervising  the day to day repairs  of motor vehicles.  He had worked for 16 years for the 1st defendant.  He was a holder of an Ordinary Diploma in Mechanical Engineering from Kenya Polytechnic, Automotive Option.  He confirmed that motor vehicle KAG 418B was sold to the plaintiff by the 2nd defendant, who is the authorized dealer for the 1st defendant.  He confirmed that when motor vehicle KAG 418B developed a problem, it was repaired by Associated Motors, Meru, one of their dealers.  He stated that he learnt from  the available  records  left by his predecessor, that the  motor vehicle  KAG 418B  developed  engine  problems  when  one of the  connecting  rods  that puncture  the engine  blocks broke, disabling  the engine, which engine  failure  was  attributable   to the operator/driver.  He testified that  Associated Motors  repaired  the motor vehicle satisfactorily and it  was handed over  to the plaintiff but before it could  cover  7000 kilometers, it  developed another engine problem which involved  the knocking  noise as a result of  one of the  connecting  rods that  puncture  the engine  block.

35. From thence, the witness  stated that the engine  could not  operate  again.  When  it  was opened, they  found that  piston No. 1 and  2  were  extensively damaged  and that  the piston  nod  was also bent.  DW1 stated  that the  vehicle  was  purchased  when it  was new  and broke down at 3,175 kilometers and that it   was repaired satisfactory  and given  back to the customer.  He stated  that the engine  failure   was due  to how the  motor vehicle   was being  driven.  He denied  that the 1st  defendant  manufactured  the vehicle.  He stated  that it  only assembled  the parts  of the motor  vehicles  and that the engine came  when it  was fully  assembled  and what the 1st defendant  did was to mount it  on the chassis.

36. He also admitted that  Ryce  Motors the second defendant  was only  one of their  dealers who  distributed fvehicles for the 1st defendant.  He  denied  that the  dealer  was the  agent  for General Motors.  Referring  to Dealer’s Sale and Service  Agreement  at page  19 of the  bundle of documents  for the defendant, DW1 stated that clause 3 of page  20 of the said  document  was clear that the dealer shall not represent  itself as  an agent or  representative  of General Motors Kenya.  That the relationship between General Motors  Kenya  and the dealer  is that of  vendor and purchaser  and not that of  principal or agent  or  employer  and servant.  DW1 also stated that  the parts  were replaceable, according  to the  warranty, covering  40,000 kilometers  or one  year and  denied  that the  warranty covered  loss of  user, pointing out to page  18 of  the defendant’s bundle  of document on  what is  not covered by warranty as “ loss of time, inconvenience  loss of  use of the vehicle or  other consequential damages  are not  covered.”   The defence witness maintained that  the mode of  failure of the suit motor vehicle  was not covered by the  warranty  and urged the court to dismiss the plaintiff’s suit.

37. In cross  examination by the  plaintiff’s counsel, and on being  shown  the  investigation report  on page  1 and  2  of the bundle  of  documents  for the defendants, DW1  stated that  the  investigation report  revealed  that the  cause of  failure of the suit motor vehicle was established   to be due to the engine damaged pistons  1,2 and  3  and engine overrun which is  usually  caused by the driver’s fault or negligence.  He stated that the vehicle   was repaired under “good will” policy and  the plaintiff paid for  the repairs.  He conceded that according to the dealer’s obligation, repairs    were to be done within  reasonable  time.

38. In cross  examination by the  2nd defendant’s counsel, DW1 stated  that in the  process of driving  the motor vehicle, the driver  may have  done something  not in line with what the vehicle had and that the driver must have overstretched the vehicle when accelerating.

39. The 2nd defendant   did not call any  witness.  At the close of the defence  hearing  on 5th December 2012  before Honourable  M. Angawa J, the  parties’ advocates  consented  to file  and  exchange  written submissions.

40. The plaintiff  filed  theirs on 4th February 2013, the  1st defendant  filed theirs on 24th January 2013  with the 2nd defendant   filing theirs on 22nd February 2013.

41. In their  written submissions, the plaintiff  raised  4 issues for determination and relied on  several authorities  to persuade  the court to  find that the plaintiff  had, on a balance  of probabilities, proved their case  against the defendants  jointly and severally.

42. The  four issues framed  by the plaintiff  for determination  are

1. Whether the  plaintiff  entered  into   an agreement  with the 2nd defendant  as dealer  and  or agent  of the 1st defendant.

2. Whether negligence  was pleaded  and proved .

3. Whether  there  was fundamental breach of agreement  and/or  implied  warranty.

4. Whether  the plaintiff is entitled to general and special damages.

5. On whether  the plaintiff entered   into any agreement  with the  2nd defendant  as dealer  and/or  agent  of the  1st defendant, the plaintiff’s counsel submitted  that the  agreement   was in respect  of the 2nd   defendant acting  as authorized  dealer and not agent  of  the  1st  defendant, as stipulated in the Dealer Sales and  Service Agreement.

43. The plaintiff’s counsel  submitted that it  was upon the 1st  defendant to ensure  that  the parts fitted  into the vehicles in the process  of assembly   were of good  quality  and fit for  use.  He submitted that the  engine  of the suit vehicle   was defective  and that the  1st  defendant  failed to  establish and correct  the problem before hand, leading    to the plaintiff incurring losses  due to engine failure  after  covering  a distance  of  3175  miles only.

44. With regard to the liability of the 2nd defendant, it  was  submitted  that the latter  proceeded to sell the  motor vehicle  to the plaintiff despite the defect.  The plaintiff   referred to the agreement  under “ Additional  Responsibilities  of  the Dealer” at paragraph  4: 10 and submitted that it  provided that:

“  The  dealer shall perform pre-delivery  inspection and adjustments    on each motor  vehicle  at its dealership premises and shall carry out  any  warranty repairs  and campaign  inspections  and  corrections and corrections  as required  by General Motors Kenya before delivery to the customer without  charge to the customer.”

45. Reference was also  made to paragraph  9 of the  warranty that obligated the 1st defendant  to warrant  products, parts and accessories which was limited to repair  or replacement   of products.  It  was  therefore  submitted that  the 1st defendant  is liable  under the warranty as the  owner  and /or  manufacturer  of the suit motor  vehicle   and the second  defendant is liable as the seller  thereof of the suit  motor vehicle  for  breach of warranty.

46. On the second  issue of  whether  negligence   was  pleaded  and proved, the plaintiff’s counsel submitted that none of the defendants  pleaded  negligence  or raised it  as an issue for  determination but only alleged it in the course of the hearing, to the effect that  the suit vehicle  was  driven negligently as a result of  which the  engine failed.  Further, that there  was  no such evidence   of negligence  and that PW2   was an experienced  and skilled  driver who could not  have caused the  suit vehicle’s breakdown.

47. The plaintiff  also submitted that according  to DEX 1 the investigation report  stated  the cause of  the vehicle  breakdown to be engine  overrun and not  negligence  or the driver’s fault.  Furthermore, it  was submitted that the evidence  of  DW1   was hearsay  since  the maker of the investigation  report  was never  called to testify.  Further  it  was submitted that  the fact that the 1st defendant  proceeded  to repair  the vehicle under  warranty meant that  there  was  no negligence  or driver’s fault  since PEX4 at page  18 stated “ what is not  covered under  warranty” is among others, (1) conditions resulting  from misuse, negligence, alteration  accident or  lack of performance  of required  maintenance   services  or overloading beyond  that the  applicable weight rating.

48. Reliance  was  placed on  Galaxy Paints  Company V Falcon Guards  Ltd[2000] e KLR  where the court  of  Appeal held that  the issues for  determination in a suit  generally flow from the pleadings and the court may  only pronounce judgment   in the issues  arising from the  pleadings  or such issues as the  parties have framed  for the court’s determination.

49. In this case, it  was submitted that  negligence  is not one of the  issues  before the court  for determination and that it   was only  raised  as an afterthought  to defeat  the cause of justice.

50. On the third  issue of  whether  there  was  fundamental breach of  the agreement   and or implied  warranty, the  plaintiff’s counsel submitted that  pursuant  to Section 16(a) and (c)  of the sale  of Goods Act, Cap 31, it  was the 1st defendant’s  duty to ensure  that the  parts they  imported  and assembled  were  of merchantable  quality  and  free from any defects, in material and form.  It  was  submitted that the 1st defendant failed  to ensure that  the vehicle  was fitted  with an engine  that   was not defective  and fit   for the purpose  and that as the  defendants  refused to repair  the  vehicle  as  per the warranty, they should reimburse the costs  incurred  in terms of  damages.

51. On whether  the plaintiff  is entitled  to special and general damages, the plaintiff relied on Section 53 and  54 (a)  of the Sale  of Goods Act which allows  the buyer  to maintain  suit against  the seller for  damages  for breach   of warranty, together with  interest.

52. On the claim for loss of  user  as a special damage, the plaintiff maintained  that  it  was due,  for  reasons  that the  defendants  failed to timeously carry out  effective  repairs  to the vehicle for  a total  of  162  days  as per PEX 4.  Further, that the  suit motor vehicle was  for commercial use and lost shs 25,000 per day and that the plaintiff  mitigated  the loss  by paying part of the repair charges  and  replacing  the fundamentally defective   engine  to avoid  any consequential loses.  It relied  on County Council of  Nakuru V John Macharia  Thinga [2006] e KLR where the court  declined to  award the respondent  the total amount  claimed as  loss of user  for failure  to mitigate  the loss he sustained  subsequent to the  wrongful confiscation of his goods  but awarded loss of  user for the  days his goods were confiscated.  More reliance   was placed on Mark Khan  Transporters  Ltd Vs Peter Mbugua [2009] e KLR  where the  Court of Appeal found the  appellant  liable to the respondent  in damages  and awarded him  shs  185,000 in respect of loss of  user calculated at the rate of  shs  5,000 per day  for 37 days, the period the respondent’s car was  undergoing  repairs.In the instant  case  shs  4,050,000 was claimed  at shs 25,000 per day for  162 days.

53. On the  claim for the  cost of  repairs, it  was claimed that shs  1,370,360. 50 towards repair  costs had not been disputed  by the defendants, which costs included cost of  replacement  of the defective  engine  and that the plaintiff paid for the  repairs  because the  defendants  took too long  to act as per the  warranty.

54. On the claim  for general  damages for  breach of contract, the plaintiff relied on Section 53(1) (b)  of the Sale  of Goods  Act and maintained that  equity   will not be suffered without  a remedy.  Reliance    was placed  on Great Lakes  Transport  Company (U) Ltd V Kenya Revenue  Authority[ 2009] e KLR where the  Court of Appeal  assessed   and awarded  general damages with interest  to the appellant.  In this case, it  was submitted that the court  should consider  the inconvenience   caused to the plaintiff  by the defendants  and award  it shs  5,000,000 general damages  for breach of warranty.

55. The  1st defendant  filed its  submissions  on 24th January  2013.  It  was the contention by the 1st defendant that  it did not  manufacture   the malfunctioned   engine and  therefore it  could not be held  liable for  the alleged fundamental  engine defect.  Further, that the  manner in which  the driver operated the motor vehicle  must  have caused the defect  and or engine breakdown.

56. The  1st defendant  also submitted that the plaintiff  failed to prove  that the  2nd defendant  was an  agent  of the 1st defendant  and that  from the documents  produced,  the 2nd defendant   was  an independent  contractor.  The   1st defendant  prayed for  dismissal  of the plaintiff’s suit  with costs.

57. The 2nd defendant  filed its  submissions  on 22nd February 2013  and submitted on the  four issues  framed by the plaintiff.

58. On the 1st issue   of whether the plaintiff entered  into an agreement  with the 2nd  defendant as dealer/and /or agent  of the 1st  defendant,  It  was  contended that  there  was no formal agreement between the plaintiff and the  second defendant  but receipts  and handing over  certificate, which documents  do not  set out  terms of  the agreement or  arrangement   between the plaintiff and  the 2nd defendant.  It  was also submitted that DEX1 was an  agreement  between 1st and   2nd  defendant which  was a Dealer Sale and  Service Agreement whose  effective  date  was  17th November  1997 whereas   the date  the plaintiff  bought the suit motor vehicle  was  29th  August  1995  hence the defence  exhibit    was  irrelevant  and cannot  assist both the plaintiff and  1st defendant.

59. On whether  negligence was pleaded  and proved, the 2nd defendant  submitted that DW1 was an  expert who  had worked  with the 1st  defendant company for a  long time  and that as the actual maker of  the report  had  retired , that expert  evidence  cannot be  wished away, as  opposed to PW1 and PW2 who knew nothing about the engines  and how they work and  operate. Further, that in any case, the  2nd defendant   was a seller  and not   agent, which  former  the  plaintiff  pleaded hence it  cannot  run away  from its own pleadings   which binds it.

60. On whether  there  was  fundamental  breach of  the agreement  and or implied  warranty, it  was  submitted  by the  2nd defendant that  it inspected  the vehicle  and did  all the  preliminaries  before handing over the suit motor vehicle  to the plaintiff.

61. On whether  the  plaintiff  was entitled to special damages, it  was submitted  that the receipts  produced  in court did not  bear revenue stamps  hence not  admissible  in law and that as regards  loss of user, it  had not been  shown that   at the time the vehicle  stalled, the plaintiff had any contract  with any company  and or that  because  the vehicle had  stalled, he lost  she  25,000 per day.

62. In all, the 2nd defendant  urged the court to find that the  plaintiff had  not proved its case  to warrant any award of special damages or general damages and  that therefore  this suit  should  be dismissed with costs.

Determination

63. I have considered the pleadings, evidence  adduced  in court both viva voce and  documentary  and the rival submissions  filed by the respective  parties’  advocates.  I have also considered  the authorities  cited and the statute law  relied on by the plaintiff’s counsel.

64. In my humble  view, and from the pleadings  and evidence adduced, the following  issues emerge  for determination:

1) Whether, on the plaintiff’s pleadings  and evidence, the suit  motor vehicle  contained  a fundamental manufacturing  defect  or  was the defect  due to the negligence  of the plaintiff’s  driver in the manner  in which  he drove  the suit  motor  vehicle?

2) Whether   the plaintiff is entitled  to special damages and general damages for  breach of contract as pleaded  in the plaint.

3) What orders  should this court make?

4) Who should  bear the  costs of this suit?

65. On the first  issue the plaintiff  claimed that the motor vehicle  broke down  within one month after he   bought it from the dealer  and despite  the initial repairs, it  continued breaking down until  it  was found that the engine  had failed which prompted  the plaintiff  to replace  the engine.

66. In the plaintiff’s view, the engine  failure  was due  to a fundamental defect  which was the  manufacturer’s  defect.  On the other  hand, the 1st  defendant  contended  in its  defence  and evidence of DW1 that the  said motor vehicle  was negligently  driven by the plaintiff’s driver  and as a result, the engine failure  occurred.  According to DW1 who  testified  and produced  the report of his   predecessor  who inspected the suit  motor vehicle, the engine  failure  was  attributed to the driver.  However, the defence  exhibit 1 at page   1 and  2   stated that  the cause  of the breakdown of the suit motor vehicle was engine  overrun and not the driver’s  fault.  According to the  plaintiff, engine, overrun is a manufacturer’s  fundamental defect and that  furthermore, the defendant  only introduced  the issue of  the driver’s negligence in the evidence  and  not in the pleadings.  The plaintiff  maintained that parties  are bound by their  pleadings  and that no particulars of  negligence  were  given.

67.  Iam in agreement with the plaintiff’s submission that to maintain  an action in negligence, the defendant  must, first, have  pleaded negligence  and given particulars  thereof.  In the instant case, the   1st defendant only introduced  the issue of negligence  in its evidence of DW1 and in the  submissions.  Furthermore, the 1st defendant’s exhibit  1 which  is the vehicle  inspection report  did not   attribute  engine overrun to  the driver’s fault.  It is for that reason  that I would  wholly agree with the plaintiff’s counsel’s submissions  that a party  is bound by their  pleadings  and cannot be permitted  to adduce evidence or submit  to prove an issue  that  was never  pleaded. To allow that to happen  would be  to encourage trial  by ambush  since the plaintiff  did not  have an opportunity to examine  the unpleaded  facts  and provide  an appropriate  defence.

68. Furthermore, submissions  are not substitute  to evidence, however well choreographed  they may be.  Secondly the defendant, in order  to sustain  a plea of  negligence, must  show that  the driver owed a duty of care  and that the he  breached that  duty as a result  of which the  plaintiff suffered  loss and  damage.  The defendants relied on the report  DEX1  prepared  by another  person  who was said to be a motor vehicle expert  yet no basis  was laid why that expert could not  come to court  and testify  in support of  his report, which, though  admitted in  evidence, does not state  that the engine overrun was due  to the  driver’s fault.  Nobody has explained  to the  court even in the respective parties’ submissions what  an engine  overrun is all about.

69. In the end, I find that there  was no basis for  claiming that  the engine   failure  was due to  the plaintiff’s  driver’s negligence  or fault  and I dismiss that  assertion by the defendant.

70. The second  question for determination under issue No. 1  is whether  on the evidence  available, the suit motor vehicle  contained a fundamental  manufacturer’s  defect  at the time of sale  and delivery to the plaintiff.  The plaintiff  in its pleadings and  evidence  claims that  the terms  and conditions   of the sale agreement  contained implied terms  and conditions that the said  motor vehicle  was  of merchantable quality and that  the plaintiff   was entitled to a  six month  and or 40,000 kilometers  warranty of full indemnity  from the defendants  for any defects, repairs  and loss arising in respect  of the said motor  vehicle  and in the ordinary course  of their operation.  The plaintiff also claimed that in breach of  the above implied  terms  and conditions, the defendants  sold  them a motor   vehicle that   was not fit for the  use for the purpose   for which it  was sold; that  the vehicle  was not of  merchantable  quality; it  did not  satisfy terms  and or conditions  of the warranty; the vehicle had  a fundamental  factory defect; and that the  defendants  failed to indemnify and  or compensate  the plaintiff for  loss and damage in accordance  with the terms  of the warranty and  or agreement.

71. The plaintiff contended in its submissions that the  1st defendant failed to ensure that the parts imported  and assembled   were of  merchantable  quality and free from  defects in material and form,  and that  the 2nd  defendant also breached   the agreement  by selling  to the plaintiff the said  motor vehicle  knowing the same was not fit for the intended  purpose.

72. The defendants vehemently denied the allegations by the plaintiff, although at the end the defendant  did not  call any  evidence  to rebut  the plaintiff’s  averments.

73. It is  trite law that he  who  alleges carries  the burden  of proving that which  he/she  alleges.  The plaintiff relied on Section 16 of the Sale of Goods  Act on the implied  warranties  and maintained  that the  second defendant  did not  carry out  pre-delivery inspection   and  adjustments  on the motor vehicle  at  its dealership premises. Section 16 of the Sale of Goods  Act Cap 31 Laws of Kenya provides  that:

“ 16 No implied  warranty as to fitness, except  in certain cases.

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  of fitness for any particular purpose  of goods  supplied under a contract  of sale, except  as follows;

a) Where  the buyer, expressly  or by  implication, makes  known to  the seller  the particular purpose  for which the goods are  required, as  to show that  the buyer   relied 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 case  of a contract  for the sale  of a specified  article  under  its patent  or other  trade name, there  is no  implied  condition as to its  fitness  for any particular  purpose;

b) Where goods  are bought by description from a seller  who deals  in goods  of that  description (whether  he be the manufacturer or not), there  is an implied  condition that the goods shall be of merchantable  quality:

Provided  that if the buyer has  examined  the goods, there shall be  no implied condition as regards  defects which that  examination ought  to have revealed;

c) An implied  warranty or condition  as to quality or fitness for a particular purpose  may be annexed  by the usage  of trade;

d) An express warranty or condition  does not  negative a  warranty or condition  implied by the Act  unless  inconsistent  therewith.”

74. What  is striking  about  the plaintiff’s submissions  and reference  to the above  provision  of the Sale of Goods Act is that counsel  only isolated  and cited Section 16(a) and (c ) of the Act  as being relevant  to this case   and maintained  that it  was the 1st defendant’s  duty to ensure that the parts  they imported and assembled  were  of merchantable quality and free from any defects, in material form, while  the 2nd defendant  was faulted  for breach of the agreement  by selling  the suit vehicle  to the  plaintiff  yet  the same   was not  fit for  the purposes  for which it   was intended.

75. However, a plain  reading of the  whole  of Section  16 of the  Sale of Goods  Act as reproduced above clearly  shows  that 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 , and what the plaintiff  isolated are the  exceptions  to that rule  under Section 16 of the Sale of Goods  Act on ‘No  implied  warranty as to fitness, except  in  certain cases.”

76. The question that this court must  therefore  answer is whether  any of  the exceptions under Section 16 of  the Sale  of Goods Act applied to the plaintiff’s case and therefore the   agreement  relied on by the  plaintiff  when he  purchased the  suit motor vehicle from the 2nd defendant  dealer.  For example, did the plaintiff  rely on the  defendant’s  skill or judgment   in purchasing  the suit motor  vehicle  and  was there  evidence  that  the defendants  dealt with that particular  engine  which  overrun  or  was that engine  of the description which  was  in  the course of  the defendant’s  business  to supply to the  plaintiff?  The  other question  is, was there  evidence  that the defendants dealt with goods of description that  was   sold to the plaintiff and  thirdly, was there evidence  led in  respect  of trade  usage  as to imply  a warranty or condition  as to the  quality   or fitness  of the goods for  a particular  purpose in the circumstances  under which  the sale agreement  between the buyer and   the seller was concluded?

77. In other  words, this court  would  only imply a condition in the agreement  between the plaintiff and the defendants  when such a condition  could fall under  any of the known exceptions to  the legal provision under section 16 of the Sale of Goods Act that in a contract  of sale, there is no  implied  warranty or condition  as to the quality or fitness  for any particular  purpose  of the goods supplied.

78. In the instant  case the court  has to examine  the new vehicle  warranty and policy   on owner  service document produced as PEX 4  by the plaintiff  in order to  determine whether  there  was an express warranty and if  not, then it  will imply, in accordance  with Section 16 of the Sale of Goods Act.

79. In the said  Maintenance  and Warranty  Booklet  document PEX4 issued by the 1st defendant  on “ what  is warranted  and for  how long” It is  stated as follows:

“ Each new  truck or chassis, including  all  equipment    and accessories thereon  manufactured  or supplied by  General Motors  Kenya Ltd, sold by an  Authorized  Dealer  is hereby expressly  warranted  by Dealer, as seller  thereof  and not as  agent  of the  manufacturers to be  free from defects  in material and workmanship under normal use and service, and on terms  set out below.

Dealer’s  obligation under this  warranty ( except  as to diesel engines is that for a period of  12 months  from the delivery  or  20,000 kilometers (12,000 miles), whichever  first occurs, the dealer  will repair any defective or malfunctioning part of the  vehicle  except  tyres  (plus  tubes  where applicable) or  batteries  which are  warranted separately by the respective  manufacturer.  The Diesel  engines  manufactured  by the Detroit  Diesel Allison Division, Vauxhall Motors Ltd, Isuzu Motors Ltd  and General Motors Truck and Coach Division, which are original  equipment  in vehicles  supplied by General Motors  Kenya Ltd; are warranted  to the retail purchases  for a period of 12 months  from the date of delivery or before  such vehicle  has been driven  40,000 kilometers (25,000 miles) whichever  shall  first  occur.  Dealer’s  obligation under  this  warranty however, is limited to repair  or replacement  of  any defective  or malfunctioning  part  of  such motor  vehicle  or chassis  which shall  within the   aforementioned  time  and mileage  limitation, be returned to dealer at dealer’s place of business and which dealer’s examination  shall disclose to it’s satisfaction  to have been defective”.(emphasis added).

80. The said exhibited document also sets out what is not warranted namely:

1) Conditions  resulting  from misuse, negligence, accident, or lack of  performance  or required  maintenance  service or  overloading  beyond the applicable  weight  rating;

2) The  replacement of maintenance  items ( such as spark plugs, ignition points, positive  crank case ventilator  valve, filters, brake  and clutch lining) made in  connection with normal maintenance  services;

3) Loss  of time, inconvenience, loss of  use of the  vehicle  or other consequential  damages  of whatever nature;

4) Any vehicle on which the odometer  mileage  has been  altered  and the vehicle’s  actual mileage  cannot be readily  determined.

5) Special bodies, body conversions or  equipment  not manufactured  or supplied  by general motors  Kenya Ltd;

6) Any part of the vehicle which fails  or malfunctions  as a result of  improper  conversion or installation of special bodies  or  equipment by other  manufacturers  or  suppliers;

7)  Normal deterioration of soft  trim and appearance  items due  to wear and exposure”

81. The Dealers obligations  are also  stated in the exhibited document  as well as the owners  obligations  as  follows:

“ Dealer’s  obligations

Repairs  qualifying under this warranty will be  performed  by any authorized  dealer handling  the owner’s make  of General Motors  vehicle within  a reasonable  time following  delivery of  the vehicle  to the Dealer’s place of  business.

82. The owner’s obligations are listed as follows:

1. Service  adjustments  are considered  to be items of  normal maintenance  resulting  from use  and are to be  paid  for by the owner;

2. The vehicle  must be  delivered to the  dealer’s place of business  during   regular  business  hours for  performance of warranty repairs  or service  adjustments.

83. The exhibited document also  exempts the General Motors  Kenya Limited and   the Dealers  from any consequential damages  which may result  from any breach of this  warranty.

84. I must  clarify that although the plaintiff blamed the 2nd  defendant  for failure  to carry out  pre-delivery  inspection  to ensure  that the  motor vehicle  was  fit  for  the purpose for which it  was  intended and as to its merchantability, PEX 2 – the Handing  over Certificate  dated 29th September 1995 and as produced by the plaintiff in support of its case is clear  that the vehicle  was inspected  and an  inspection report   prepared  and given.  It is  therefore  clear to my mind that the allegation that  there  was no pre-delivery inspection  was  not correct and I reject that averment.

85. Further, from the maintenance  and warranty  booklet  issued by the 1st defendant it is clear  the defendants  expressly warranted the vehicle to be free from defects in material and workmanship  under normal use  and service  on the listed  terms.  However, there   was no warranty  as to the  merchantability  or fitness  for the purpose for  which the  vehicle  was intended .  Such  warranty would  only be  implied if the buyer  relied on the skill  and judgment  of the seller  or dealer  or where  the vehicle(goods)  were  bought by description from a seller  dealing  with such goods.  The plaintiff  did not  adduce  any evidence  to show that  it relied on the skill and judgment of the  defendants  or that  the suit  motor vehicle  was  bought by  description and for a specific purpose.

86.  In my humble view, the plaintiff  was under a duty to check  if there   were any  defects  before using   the motor   vehicle  for its  intended  purpose.  There  is no dispute  that the  said motor  vehicle  broke  down  after covering  3175  kilometers. According   to the warranty document as exhibited, if the  engine  malfunctioned during the  duration of the warranty, then  the buyer   would deliver  it to  the dealer for  repair or replacement  of the diesel engine after the  dealer  satisfied  itself that the part   was defective.  In this  case, there   was evidence   that after the  vehicle broke down , the  same was delivered  to the  2nd  defendant dealer  for repairs,  and that it was repaired but that and when it  returned to the buyer, it broke  down again on 23rd October  1995.

87. The 1st defendant  confirmed that  the vehicle had  engine failure  due to engine overrun and that when the  vehicle   was delivered  to the plaintiff, it  broke down at mileage  10,247 and on 13th February  1996, the  report  was the same as that of  engine  failure   due to  suspected  engine overrun.  What is missing from  both the  plaintiff and defendant’s evidence  is what an engine  overrun is.  This is  information which could have been explained by  an independent motor vehicle or automotive expert.  The expert  would, in my view be in a position to explain to this court  whether  engine overrun is a fundamental manufacture’s  defect in a motor  vehicle or  can be  caused by normal usage of the motor  vehicle.  In the  absence of  the independent expert’s  evidence as  to whether   engine overrun in the suit  motor vehicle   was due to a manufacturer’s  fundamental defect, or  due to other  causes, this court  would  not be in a position to find that  the engine failure was due to   a fundamental manufacturer’s  defect. To find otherwise would be speculating the meaning of technical terms used in a different profession and setting. Furthermore, DW1 did not explain to the court what that engine overrun was. That being the case, it was upon the plaintiff to call for such independent expert to explain to the court the meanings of such technical terms since DW1 did not even inspect the suit motor vehicle.

88. It is also trite  law that  he  who  alleges must prove.  Sections  107,108  and  109 of the Evidence Act Cap 80 Laws of  Kenya are clear that:

107(1)  whoever desires any court to  give judgment as to any legal right  or liability dependent  on the existence  of facts  which he  asserts  must prove that those  facts exist.

(2)  When a person is bound to  prove the existence  of  any fact it is  said  that the  burden  of proof  lies on that person.

108:  The burden of  proof  in a suit  or proceeding lies  in that  person who  would fail if no evidence at all  were given  an either  side.

109:  the burden of proof  as to any  particular  fact lies  on the person  who wished the court  to believe  in its existence, unless  it is provided by any  law that  the proof of that fact shall lie on any particular person.

89.  I reiterate that in the  instant case, it is the  view of  this court that it  was incumbent upon the  plaintiff  to proof  that the engine  breakdown  was due to a manufacturer’s fault.  The plaintiff   was entitled  to  hire  the services   of an independent  expert   in engines  of the type of  the suit vehicle  to examine  it  and determine  whether the engine was fundamentally defective  which defect  could be  attributed to  the manufacturer’s fault, since there is ample  evidence that there  was pre-delivery inspection by  the defendants.  What this court notes is that  the plaintiff left  it to the  defendants  to prove  that the defects in the engine  were not manufacturer’s fault and secondly, the plaintiff also left  it to  this  court  to determine  what would be  the probable  cause for  the  engine  overrun.

90. In my humble  view, the defendant’s inspection report  having shown that the  engine  failure   was due to engine  overrun,  which report  the plaintiff  had before this suit  was  instituted as  there  was no contrary evidence, the plaintiff should  have obtained an automotive expert’s opinion as to whether that overrun  of the engine   was due to a manufacturer’s fundamental defect.  In the absence of  that crucial evidence of  an automotive expert, this court  is unable to find that  the defect  in the engine  of the suit  motor vehicle was a fundamental  or material manufacturer’s defect  which the  defendants  knew or ought to have  known prior  to  the  delivery of the suit motor vehicle   to the plaintiff. I find that the plaintiff has failed on a balance of probabilities to establish that the suit motor vehicle had a manufacturer’s defect.

91. On whether  the plaintiff  is entitled  to special  and general  damages  for the costs of  repairs  and loss of user of the suit  motor vehicle, the plaintiff maintained in its evidence  and submissions that  loss of user occurred as a result of  failure on the part of the defendant  to  carry out  timeous  and effective  repairs to the motor vehicle.  The plaintiff  also claims that  the defendants  should be liable for  grounding the  suit motor vehicle  in the garage  for a total of  162 days .  It  was submitted that the plaintiff avoided consequential loss arising  from loss of user  by mitigating   its loss.  It  claimed for  shs  4,050,000 at the  rate of  shs  25,000 per day  for  162 days.

92. The plaintiff  produced  some  contracts for  purposes of proving  loss of  user in PEX 7,  a KTDA  fertilizer  Transportation Agreement dated  30th July  1996 wherein the suit vehicle is stated to have  earned  shs 35,000 per day; and  another vehicle  earned  it a net of  shs  66,000 contracted  with Church  Ecumenical in Sudan.  It is dated 21st July 1997.  The plaintiff  also claimed  for shs  1,370,360. 50 towards repair charges  and replacement  of a defective  engine, which repairs  it paid because  the defendants  allegedly took too long  to repair  and replace the defective  engine  as required  under the contract.

93. The law regarding  special damages is that  they must  be specifically pleaded and strictly proved by  way of evidence.  In the case of David Bagaine V Martin Bundi [1997] e KLR,  the Court of Appeal while addressing  the issue of loss of user stated as  follows:

“We must and ought to make  it clear  that damages  claimed  under the  title   “loss of user” can  only be  special damages.  That  loss  is what the claimant  suffers  specifically.  It cannot  in the circumstances  be  equated to general damages  to be assessed  in the  standard  phrase “ doing the best I can.” The damages  as pointed out earlier  by  us must  be strictly proved .  Having  so erred, the learned Judge  proceeded to assess the same  for a period of nearly three years.  There the  learned judge  seriously erred.  Damages for  loss of  user of a chattel can be  limited (if proved) to a reasonable  period which period  in this instance  could only  have been the period  during which  the  respondent’s  lorry could  have been  repaired  plus some  period  that may have been  required to assess  the repair costs(emphasis  added).

94. The plaintiff  in the instant   case claimed  that the suit  motor vehicle   broke down on 13th October  1995  and stayed grounded  at Associated  Motors in Meru to  2nd December  1995.  PW1  testified  that the vehicle again broke  down on its  way to Nairobi and it remained in the workshop until  14th April  1996.

95. For  the court to award damages for  loss of user, it  was necessary for  the plaintiff to prove the loss  specifically suffered between 13th October  1995  and  14th April  1996.  Albeit the warranty  provided that repairs  shall be  carried out  within a reasonable  period  of time, and although the vehicle  was  out of use for 162 days, the plaintiff in this case  produced  contracts  which  were entered  into post  the  162 days, after  the motor  vehicle  had been repaired  and the engine  replaced.  The plaintiff  ought to  have adduced evidence  showing that  prior to the motor  vehicle breaking down, it used to fetch an amount of money which money  could not  be earned during the period  when the vehicle   was undergoing  repairs or grounded.

96. In SAGOO v DOURADO (1983) KLR page 366the court held inter alia as follows:-

“…in contracts of all types, time will not be considered to be of essence unless:-

a. The parties expressly stipulate that conditions as to time must be strictly complied.

b. The nature of the subject matter or surrounding circumstances show that time should have been considered of the essence; and/or

c. A party who has been subjected to unreasonable delay gives notice to the party in default making time of the essence….”

97. Similarly in the case of BIR SINGH v PARMAR(1972) EA. 211, Law JAat page 212, the Appellate Court held as follows:

“This appeal concerns an agreement for the sale of land, a condition of which was that a deposit was payable.  The agreement did not specify that the time was of the essence  in connection with the payment of the deposit, and the judge refused to imply a stipulation making time of the essence.  He preferred to apply the general rule as stated in 8 Halsbury’s laws, 3rd Edn. Pp.164-165, and held that in the absence of an express stipulation or clear implication that time in relation to the payment of the deposit was of the essence of the contract, failure to pay the deposit did not entitle the vendor unilaterally to avoid the contract.  The position would of course have been different if the vendor had given notice making time for payment of the deposit of the essence of the contract and specifying a reasonable period for payment, but this he did not do.  He preferred to treat the contract as not binding on him but I agree with the judge that in these circumstances the contract continued in force.(emphasis added).

98. In the case of Aida Nunes vs J.M.N Njonjo & C. Kigwe (1962) EA page 89, the court stated that:

“when time has not been made the essence of a contract, it is clear that at least in contracts for the sale of land and the grant of leases, one of the parties cannot avoid the contract on the ground of unreasonable delay by the other until notice has been served making time the essence….. in the circumstances the respondents could have avoided the agreement only if they made time the essence of the contract by fixing a reasonable time within which the sublease must be granted coupled with a notice that, if not then granted the agreement would be avoided and this they failed to do.”(Emphasis added).

99. In the instant case, the warranty only provided that the vehicle would be repaired within a reasonable time. No specific timeframe was fixed for effecting repairs and neither did the plaintiff give to the defendants notice that if repairs are not effected within a given timeframe then the agreement or contact would be avoided.

100. Furthermore, PEX7 and  PEX 8  are general  transportation agreements  which  were not specific  to that problematic  motor vehicle.  The plaintiff  also failed to demonstrate mitigation of  loss  in that there   was no evidence  that during the  162  days, it hired   another  vehicle to perform the work  which the  suit motor vehicle   was or could have  performed, since    from  evidence  on record,  the vehicle   was to  be hired  out to  transport  goods.  General agreements   giving  examples  of  earning  capacity of motor vehicles similar  in capacity as KAG  418B  is not evidence  of loss of user of that particular motor vehicle especially when those general agreements relate to the period post the repair period and not during the repair period.

101. In addition, loss of user claim was expressly excluded from the warranty.  The law is clear that courts cannot re-write contracts between parties. The court only enforces/interprets the contracts  to give  effect to the intentions of the parties  to the agreement and not to deviate from the intention of the parties to a contract. In the case of GATOBU M’IBUUTU KARATHO v CHRISTOPHER MURIITHI KUBAI [2014] eKLRthe court cited with approval the decision of the Court of Appeal in NATIONAL BANK OF KENYA LTD  V PIPEPLASTIC SAMKOLIT (K) LTD AND ANOTHER  (2002) EA 503 where it was stated that:-

“This, in our view, is a serious misdirection on the part of the Learned Judge.  A court of law cannot rewrite a contract between the parties. The parties are bound by the terms of their contract unless coercion, fraud or undue influence are pleaded and proved.  There was not the remotest suggestion of coercion, fraud or undue influence in regard to the terms of the clause.

102. It is  for  the above  reasons that  I find that  the claim for loss of  user though specifically pleased,  was  not strictly proved by the plaintiff  to the required  standard of  balance  of probabilities.

103. On the issue of special damages amounting to shs  1,370,360. 50 for  the cost of  repairs  on the suit motor  vehicle, I have  already found that  the plaintiff  did not  produce any  evidence of  a motor vehicle  expert evidence to prove and or  to determine  whether the defect  in the  engine  was a  manufacturer’s fundamental defect  or whether   it  was  due to normal use of the  motor vehicle.  In support  of the prayer  for repair  costs, the plaintiff produced  PEX 5  which is  a reconciliation  statement  showing payments for  motor  vehicle KAG  418B from Associated  Motors  Ltd and several receipts  from automotive  dealers produced as PEX 6.  The question that I must answer is whether   the evidence  adduced sufficiently  proved damages suffered   by the plaintiff.

104. According to the plaintiff, the suit  motor vehicle  broke down  during the  warranty  period therefore  the defendants  ought to have  repaired the motor vehicle  according to the  warranty, free of charge, but that  the defendants took too long to decide on  whether or not  they should  repair  it that is  why the plaintiff  repaired  the motor vehicle.  However, from the exhibited receipts produced by the   plaintiff  showing repair  charges, some  receipts  were in the name  of  the plaintiff  making no reference to  what motor  vehicle  was or had been repaired.

105. The plaintiff’s witness PW1 also conceded   in cross examination that the receipts  of 14th January  1998  and May  12th  1997   were included  in the bundle  of documents  by mistake  and PW1  also  conceded  in the cross   examination  that  receipts not bearing the  plaintiff’s name or motor  vehicle KAG  418B would not  relate to repairs to the suit  motor vehicle.  The court also notes  that whereas  the plaintiff’s oral evidence  and pleadings  seek for  repair  costs  incurred   to bring   the motor  vehicle into operation  between  13th September 1995 and April 1996, some receipts   in PEX 7  are for  14th January  1998, 12th May 1998, 1st October  1997, 25th November  1996, 10th September  1997,  19th January 1998, 9th September 1996, 1st October  1997, 11th May 1998 which  were issued  after  the  162 days.  It is not clear  whether  in the period  those receipts  were issued, the suit motor  vehicle  was still in the warranty period,  that is,  whether it  had been driven less than  40,000 kilometers, even if it was before expiry of  12 months,  since the  warranty  provides  that the  engine was warranted  to the first  purchaser  for a period of  12 months  from  the date of delivery of the motor vehicle, or before such vehicle has been  driven 40,000 kilometers  whichever  shall first  occur.

106.  I have  no doubt  in my mind, on  the evidence  adduced  that receipts  issued after  29th September  1996  were outside  the  12 months  period hence  outside  the warranty period.  On the other  hand, I am equally persuaded  that  the plaintiff  has not proved that  receipts  issued after  April 1996  and   before  29th September 1996   were within the 40,000 kilometers warranted since they do not reflect the suit motor vehicle’s mileage for that period.

107. In addition, would those  receipts  for the purchased  parts  be prove  of repair  costs to  the  required  standard  for this  court to  award  damages  for  repair costs? I think not. Iam fortified by the decision in the case of  Nkuene Dairy Farmers Co-operative  Society Ltd  & Another  V Ngacha  Ndeiya [2010] where the Court of Appeal observed  that:

“ In our view, special damages  in a material damage  claim need not   be shown  to have been  actually  incurred .  The claimant is only  required  to show the extent  of the damages  and what it  would cost  to restore  the damaged  item  to as near  as possible  the condition  it  was  in before  the damage complained of.  An accident  assessor  gave details  of the parts  of the respondent’s vehicle which  were damaged.  Against  each item he assigned  a value.  We think the value of repairs   was given  with some degree of certainty.”

108. In the instant  case, the plaintiff  only claimed  for cost   of repairs and   placed  a value  on it.  Its pleadings  and evidence  did not  specify the exact  repairs  that were  undertaken.  In my view, the actual  damages to the motor vehicles   were  never ascertained and pleaded with specifity and no  evidence  was  adduced  to show  with precision the exact  repairs and  the cost assigned  to each item repaired. And as earlier stated, the plaintiff  did not  engage a motor vehicle  expert   to assess the specific damages  and assign  a value  to each    item requiring repair.  The plaintiff only produced  receipts  for purchase  of various  automotive  parts, which is not sufficient evidence of the specific damage to the motor vehicle.  I am fortified  by the decision  though persuasive, in the case  of Patcliffe V Evans [1892] 2 QB 524(CA) where the appellate court stated:

“  In all actions  accordingly, on the case where  the  damage  actually  done is  the gist  of the action, the character  of the acts  themselves  which  produce  the damage  and the  circumstances  under which  these acts  are done, must  regulate  the degree of certainty and particularity with which the damage   done ought  to be stated  and proved.  As such  certainty and particularity  must be  insisted on, both the pleading and  proof  of damage, as is  reasonable, having  regard to the circumstances  and to the  nature of  the acts  themselves  by which  the damage is done. To insist  upon less  would be to  relax  old and  intelligible   principles.  To insist  upon more would be the  vainest  pedantry.”

109. According  to the plaintiff, the  suit  motor vehicle  broke down  and required parts to put it back to its  working condition.  Nonetheless, no motor vehicle  expert   was called  upon to  examine the vehicle and identify the  specific parts that  required  replacement  and a specific  estimated  cost placed  on those parts.  In David Bagaine  V Martin Bundi(supra) the Court of Appeal in considering  the issue of  cost of repairs stated as follows:

“ No evidence by any expert   was called to prove the exact repair  costs.  Nor  was there  any evidence  to show what was the pre-accident   value of the lorry and the salvage value( if the lorry  was indeed  a wreck)  There  was nothing  to show if  the sum of kshs 277,750 could have  properly been spent  to put the lorry back on the road.  It is for the claimant  to prove his damages.  In this  case, the claimant   simply produced  to court an estimate.  He said he had  not at all repaired the  vehicle as  he could not  afford it.  This seems farfetched.  If he  was earning, as he  said, she 5,000 to shs  9,000 a day he could easily have repaired  the vehicle  and put it  back on the  road.  The best  evidence in this  respect  could have  been supplied  by an  automobile  assessor.  But as we have  no such  evidence we have no choice but  to also  set aside  that award in its  entirety.  We are  not saying that the respondent  did not  suffer  damage.  We are saying he did not prove it”(emphasis added)

110. In Omari Gulea Jana V BM Muange [2010] e KLR Okwengu J (as she then was) held as follows though persuasively on a matter of similar nature:

“Although it was alleged that motor vehicle   KAC 996F was damaged, the assessment   report   was not produced in evidence.  This  was crucial evidence  as without  the assessment report  it   was impossible  for the court to establish  the damages  to the  motor vehicle  on the estimated  costs of repairs.  The fact  that UAP Insurance paid  a sum of  kshs 271,874  to Unity Auto  Garage  is not sufficient  to establish that  payment   was in  respect of  repairs to the damage   to motor vehicle  KAC  996F arising from the accident subject of this suit.  I find the evidence adduced by the respondent  was inadequate to strictly prove his claim.  The trial magistrate appears to have been swayed by the fact that the appellant did not call any evidence.  The trial magistrate apparently lost sight of Section 107 of the Evidence Act which placed the burden of proof squarely upon the respondent.  Her judgment cannot be supported.

111. B. Thuranira  J in Gachanja  Muhori & Sons  Ltd & another  V Catholic  Diocese of  Machakos [2014] e KLRin determining  an appeal  where the appellant  contended  that there   was no proof  of repair  works done  and or that  the respondent’s motor  vehicle   was  damaged, in a case  where no  motor vehicle  assessor was called  to give evidence, the learned judge  held that:

“There was nothing to show if the sum stated by the respondent was properly spent to put the motor vehicle back on the road.  The best evidence  in this case  would have  been supplied  by the motor vehicle assessor…….(see David  Bagine V Martin Bundi CA  Nairobi 283/1996)………without  the motor vehicle  assessor’s  report, it   is very difficult   to tell what  duration it would have   taken to repair  the motor vehicle ……The award of  loss of user   for a period of   90 days   was therefore not based on any  cogent evidence.”

112. The  plaintiff in this case relied  on the case of Wilfred  Irungu Ndirangu  V CMC Motors   Group Ltd[2012] e KLR  which though  relevant to this case, but in that case, it is clear that the plaintiff  claimed for  replacement of a new  motor vehicle   and in the alternative, that a new  engine  be fitted  together  with pressure  plate system, cooling  and gear  transmission system. In addition, the plaintiff  in the  above cited  case  enumerated  the defects  in the motor vehicle ( see page  4 of 15  of the said judgment.  He also  produced job cards for the repair  works carried  out on the suit  motor vehicle unlike in the  present case  where  as I have  stated, no evidence of the exact  repair  works carried out  was  presented  before the court for consideration. In Kenya Industrial Estate Ltd V Lee  Enterprises  Ltd [2009] KLR 135   it  was stated ( as  approved  by the Court of Appeal  in CA 310/2005  Abdi Ali Dere V Firoz  Hussein Tundai & 2 Others [2013] e KLR that:

“Generally speaking, the normal measure of damages for damage to goods is the amount by which   the value of the goods has been diminished.  The cost  of repair is  prima facie  the measure  of diminution in value of goods   and therefore the   correct  measure  of the loss suffered. where, however, the goods  are destroyed, the owner is  entitled to restitution in integrum and the normal  measure  of damages  is the  cost  of replacement  of goods, that is the  market value at the time  and place of  destruction.”

113. This court   has also not lost  site of   the fact that  although  the plaintiff   was required  to take  his purchased  motor vehicle  for service  at  1000 kilometers, as per the Maintenance  and Warranty  Booklet  PEX 4, there is  no evidence that  the plaintiff  ever took the  suit motor  vehicle  for service  at 1,000 kilometers.

114. In addition the PEX 5 – Reconciliation Account issued by Associated Motors Limited is undated and only provides for date, invoice Nos and amount while giving credit for payments   made.  The exhibit   does not  provide a detailed  account of  the  exact repairs effected on the suit motor vehicle.

115. On the claim for general damages for breach of contract, the plaintiff averred that the defendant owed it a duty of care to ensure repairs were done to the motor vehicle within a reasonable time and to the satisfaction of the plaintiff. The plaintiff further submitted that taking all factors into account, an amount of shs 5,000000 will be reasonable under the circumstances.

116. It is now settled law that the purpose of an award of damages is to put the plaintiff in the position he would have been, had the breach not occurred and the contract had been performed.

117. In the instance case the plaintiff had pleaded general damages for breach of contract.  Mere breach of contract in my view   does not result into an award of general damages.  Such damages must be proven by evidence.  In this case, no such damages have been proved in view of my finding that there was no specific period of time stipulated for effecting repairs and neither did the plaintiff give notice to the defendant giving a specific period for repairs and in default the contract be avoided. Further, there was no warranty specified in section 16 of the Sale of Goods Act which was breached by the defendants.

118. In the end, I find that the plaintiff failed to prove its claims against the defendants jointly and severally on a balance of probabilities. I dismiss the suit herein.

119. Costs are in the discretion of the court and in any event to the successful party. In this case, the plaintiff has lost his claim, not because it did not suffer any damages but because it was unable to prove on a balance of probabilities to the standard required by law. This suit has been lying in court since 1996. It is now 20 years and 48 days old, for no fault of the parties, who had a legitimate expectation to get justice expeditiously but lost out on each occasion following either the transfer or demise of the judge handling this case. I neither saw nor heard the witnesses as they testified and even after I took over the case which had been heard by not less than 5 judges, it was not an easy task making head or tail of the proceedings. I have spent a considerable period of time understanding what my predecessors scribbled. Proceedings were typed severally with some judges simply edging themselves from the case for one reason or the other. I have done my best in arriving at the decision that I have made. In the premise, I would hesitate awarding costs to the defendants and I therefore order that each of the parties bear their own costs of this suit.

Dated, signed and delivered in open court this 18th day of August, 2016.

R.E.ABURILI

JUDGE

In the presence of:

Mr Mwango h/b for Omotii advocate for the plaintiff

Ms Kuria advocate for the 1st defendant and h/b for Mr Otenyo for the 2nd defendant

Court Assistant: Adline