Margaret Wambui Nganga v Pirzada Motors Co. Limited

3. The respondent by its director testified that there was a comprehensive cover in force at the time of the accident thus the court fell into a monumental error in holding that the claimant had duty to ensure that the motor vehicle was fully insured before leaving the respondent's yard. 4. The learned Adjudicator erred and misdirected herself in law in completely misinterpreting misapprehending the contents of the sale agreement between the parties by ruling in favour of the respondent and to the detriment of the appellant despite the express terms of the agreement. 5. The learned Adjudicator erred and misdirected herself in law in failing in its duty of analyzing the evidence availed and getting entangled in the middle thereby arriving at findings not supported by facts and law. 4. The learned magistrate erred and misdirected herself in law in finding for the respondent for Kshs. 416,900 as repair costs yet there was a comprehensive cover and these costs we duly covered comprehensively. 5. The learned Adjudicator erred and misdirected herself in law in failing to find that the appellant was entitled to the reliefs sought. 6. The learned Adjudicator miserably failed in the analysis of the evidence as a whole and came to the wrong conclusion. Appellant’s Case; 7. The Appellant moved the lower court on the 40 December 2023 seeking Kshs, 775,000/ against the respondent being Kshs, 700,000/ towards the purchase price Kshs. 50,000/ Insurance and car track Ksh.25,000 and Installment Kshs. 775.000. 8. The respondent filed several responses culminating, with the final amended response counterclaiming Kshs. 966,900 broken down as follow as Repair costs and Outstanding monthly arrears Kshs. 416,900 and Kshs. 550.000 respectfully totaling to Kshs. 966,000. 9. It’s her case that on the 7th April 2022, the parties herein entered into a sale agreement whereby the appellant purchased motor vehicle registration No. KDH 542 G from the respondent at an agreed purchase price of Kshs.1,300,000 wherein she paid Kshs, 700,000 towards the purchase price, Kshs. 50,000/ for Insurance and car track and Kshs. 25,000 as the 1st Installment of the balance of Kshs, 600,000/. 10. It’s her case that the motor vehicle was released to the appellant in May 2022 without a comprehensive cover although it misled the appellant that it had a cover and even availed a sticker to her which was displayed on the windscreen of the motor vehicle. 11. The motor vehicle was subsequently involved in an accident on the 10th June 2022. 12. The respondent was duly notified of the accident and after which the Respondent asked the Appellant not to report the accident to the police given that the cover was not in force and requested her not to report the accident to the police. 13. She argues that after a back and forth, the respondent took possession of the subject motor vehicle prompting the appellant to file the suit the subject of this appeal. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19313/eng@2025-12-17 2

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14. She is dissatisfied with the judgment as rendered by the trial court. Reliance is placed in the case of in Muranga ELC Appeal 17 of 2020 states: “ As this is a first Appeal, it is the Court's duty to analyze and re-assess the evidence on record and then reach its own independent decision in the matter as provided by Section 78 of the Civil Procedure Act. See the case of Kenya Ports Authority versus Kusthon (Kenya) Limited (2009) 2EA 212 where the Court of Appeal held inter alia, that:on a first appeal from the High Court, the Court of Appeal should reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect. Secondly, that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence.” 15. In the case of Mbogo vs Shah (1968) EA at Page 93, the Court held that: “ I think it is well settled that this Court will not interfere with the exercise of its discretion by an inferior Court, unless it is satisfied that its decision is clearly wrong because it has misdirected itself or because it has acted on matters on which it should not have acted on because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.” 16. It is her case that the Respondent’s director having testified that there was a comprehensive cover by the time the motor vehicle left the yard, the learned adjudicator was wrong in finding that: “ Clause 8 of the Agreement produced by the claimant provides that immediately the buyer takes possession he shall be responsible to cater fully for comprehensive insurance and car track, the claimant's argument that she paid for the insurance to the respondent has not been substantiated. It was the claimant's duty to ensure that the vehicle was fully insured before the leaving the respondent's yard.” 17. In his response and witness statement, the respondent maintained that the appellant was the one to secure the cover and that the amount paid did not cover the insurance. 18. However, during cross-examination and re-examination, the respondent through its director backtracked and was clear that there was a one-month comprehensive cover by the time the motor vehicle was released from the yard to the appellant. les within the same period of cover that the accident occurred. 19. To this extent, the findings by the learned adjudicator that it was upon the appellant to ensure that the motor vehicle was fully insured before leaving the respondent's yard is based on no evidence and/or misapprehension of the evidence as tendered thus the learned magistrate was wrong in reaching this conclusion. 20. In a nutshell, the respondent appears to suggest that it released the motor vehicle to the appellant without securing its interests. This is impractical and against the letter and spirit of the agreement executed by the parties which is clear that before the motor vehicle leaves the yard there must be a comprehensive cover in force. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19313/eng@2025-12-17 3

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21. She submits that the trial court misinterpreted Clause 8 of the agreement. The operative words are "immediately the buyer takes possession, he shall be responsible to cater fully for comprehensive insurance and car track. 22. The appellant's evidence is that she paid for the cover and car track and she was made to understand there was a cover as she was given a sticker which was displayed on the window screen of the motor vehicle. Having paid for the insurance and given a sticker, the appellant had catered for the cover and the reasoning by the court was faulty. 23. She learnt there was no cover when the motor vehicle was involved in an accident and the respondent demanded that the accident should not be booked in the police station within the jurisdiction of the accident to enable the respondent fake an accident within the central business district for an insurer to take up the matter. 24. If there was a comprehensive cover in force at the date of accident, according to her then the respondent could pursue the insurance company for compensation but not pursue the shattered chattel as in this matter. 25. The respondent would have availed evidence of cover to the appellant to enable her take up the matter with the insurer to protect her interests. 26. In the same vein, the respondent could not purport to repair the damaged chattel and seek costs thereof from the appellant. 27. In the face of a cover, the respondent could only report the accident and the insurer company would take up the claim. 28. She further submits that under Section 38 of the Small Claims Act, an appeal lies to the High Court on matters of Law. 29. Even though not dealing with an appeal from small claims court, court of appeal has several defined what amounts to points of law while addressing appeal governed by the Civil Procedure Act. 30. In a recent decision, Nyeri CA 133/2018, the court stated thus: “ This is a second appeal. Our mandate is as has been enunciated in a long line of cases decided by the court, See Mina Mugiria (1983) KLR 78, Kenya Breweries Ltd verses Godfrey Odongo, Civil Appeal No.127 of2007 and Stanley Muriithi & Another versus Bernard Munenen Ithiga (2222016) eKLR for the holdings inter alia that, on a second appeal, the court confines itself to matters of law only unless it is shown that the Court below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse.” 31. In Nyeri CA 12 of 2014, the court had this to say: “ In Kenya Breweries Limited Vs Godrey Odoyo [2010] eKLR (Civil Appeal No. 127 of 2007) Onyango Otieno, J.A. put it succinctly in the following words: a. In a second appeal however, such as this one before us, we have to resist the temptation of delving into matters of facts, This Court, on second appeal, confines itself to matters of law unless it is shown that the two courts below considered matters they should not have considered or failed to consider https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19313/eng@2025-12-17 4

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matters they should have considered or looking at the entire decision, it is perverse.) b. We hasten to observe, however, that failure on the part of the first appellate court to re-evaluate the evidence tendered before the trial court and as a result, arriving at the wrong conclusion is a point of law. 32. It is her respectful submission that the lower court failed to consider matters it should have considered and/or looking at the entire decision it is perverse. 33. It further failed to evaluate the evidence tendered before it and as a result reached at a wrong conclusion. 34. Had the lower court properly and critically evaluated the evidence before it, it would have arrived at a different conclusion. 35. The court ought to have addressed its mind to the effect of a comprehensive cover. The Respondents Case; 36. It is the respondent’s case that the trial court did not fall into error in deciding the claim that culminated in the impugned judgment. 37. It is its case that the ownership and the possession of the vehicle had moved to the appellant and that the appellant was therefore reliable to shoulder the matter of insurance. 38. It is its case that the sale agreement clearly stipulated that risk and responsibility over the motor vehicle passed to the Appellant upon delivery. 39. According to it there was no clause in the agreement requiring the Respondent to continue insuring the vehicle once it left its premises. 40. The Appellant failed to prove the payment of Kshs. 50,000 for insurance as no policy/receipt was produced. 41. During cross-examination the appellant said "I was the one -supposed to pay for comprehensive insurance" — the same is referenced in page 10 of the Proceedings. 42. In National Bank of Kenya Ltd v Pipe plastic Samkolit (K) Ltd & Another [2001] eKLR, the Court of Appeal held: “ A court of law cannot rewrite a contract between the parties. It must give effect to the clear terms of the contract entered into freely by the parties.” 43. It is its case that the Adjudicator correctly identified the core issues and exhaustively evaluated the evidence that was before it correctly. 44. Clauses 8-10 of the sale agreement provided that immediately the buyer takes possession he shall be responsible to cater fully for comprehensive insurance and car track the claimant's argument that she paid for the insurance to the respondent has not been substantiated it was the claimant's duty to ensure that the vehicle was fully insured before leaving the respondent's yard. 45. Clause 9 further provides that should the motor vehicle be involved in any crime accident stolen burnt illegal activity terrorism or any other natural calamity it shared with the sole responsibility of the buyer notwithstanding the fact that the motor vehicle has not been fully transferred into his or her name. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19313/eng@2025-12-17 5

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46. The respondent's witness confirmed that repossession was done due to breach as the Appellant defaulted in making payments. 47. The Respondent testified, produced the sale agreement, and demonstrated through evidence that the vehicle had been released to the Appellant and that any obligation to insure it thereafter rested upon the Appellant. 48. The duty to insure shifted upon transfer of possession, and no misdirection in that regard occurred. Reliance is placed in Peters v Sunday Post Ltd [19581 EA 424, it was held: “ An appellate court will not lightly differ from the findings of fact of a trial judge unless it is shown that he has failed to take account of particular circumstances or probabilities or has misapprehended the evidence or the impression of the demeanor of a witness." 49. It submits that the burden of proof in civil cases is provided under Section 107(1) of the Evidence Act (Cap 80, Laws of Kenya) and clearly states that; “ 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." 50. The Appellant's entire case rested on her claim that there existed a valid and enforceable comprehensive insurance cover at the time of the accident. 51. She produced no insurance policy, cover note, or communication from any insurer to substantiate that claim. 52. In Wareham t/a A.F. Wareham & 2 others v Kenya Post Office Savings Bank [2004] eKLR, the court emphasized: “ It is trite law that he who alleges must prove the allegations.” 53. The award of Kshs. 416,900 to the Respondent was for repair costs arising from an accident that occurred after the Appellant had taken delivery of the vehicle. 54. The Respondent produced evidence of repairs, including invoices and testimony on the extent of damage. 55. Having found that the vehicle had been lawfully delivered to the Appellant and that the accident occurred while it was in her custody, the trial court correctly held her responsible for the resulting damage. Analysis and determination; The issues for determination are; 1. Whether the appeal has merit. 2. Who shall bear the costs? Whether the appeal has merit. 56. Section 38 of The Small Claims Act provides thus; 1. A person aggrieved by the decision or an order of the Court may appeal against that decision or an order to the High Court on matters of law; https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19313/eng@2025-12-17 6

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2. An appeal from any decision or order referred to in sub section (1) shall be final. 57. Being a first, appeal, this court can review, re-look at and analyze the evidence and the case that was before the trial court, and arrive at its own finding. 58. This must however, be within the framework of the principles as enunciated in Selle & Another vs. Associated Motor Boat Co Ltd & Others [1968] EA where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and reevaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect. 59. From the sale agreement dated 7th April 2022 it clear that the motor vehicle passed to the Appellant upon delivery conditionally and subject to clause 8. 60. The terms of the sale agreement Clauses 8 provides that immediately the Buyer takes Possession of the Motor Vehicle he shall be responsible to cater for fully Comprehensive insurance cover and Car Track. If the agreement is for more than one year the Insurance and Car Track will be automatically renewed by us and will put in clients account. 61. This court is in agreement with the judgment In National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another [20011 eKLR, the Court of Appeal held: “ A court of law cannot rewrite a contract between the parties. It must give effect to the clear terms of the contract entered into freely by the parties." 62. The court has also noted that the respondent’s witness testified that repossession was done due to breach as the Appellant defaulted in making payments. 63. The court is satisfied that the appellant paid Kshs. 50,000/= for this purpose of the motor vehicle insurance and was issued with a cover which she displayed on the windscreen until the accident occurred when she learnt that it not a cover. 64. During the trial, the respondent confirmed that there was a month's insurance cover in force when the car was sold. 65. Further, the court notes that the respondent did not want the accident to be reported to the police. 66. From the Respondent’s conduct as read alongside the respondents’ witness’ testimony in court, I holds the view that the respondent is estopped from alleging that the appellant had not paid for the cover. 67. To satisfy itself, that it is correct, the court has looked at Clause number 8 of the agreement dated 7th April 2022 keenly and noted that it stipulates that if the agreement is for more than one year, the insurance and car truck will be renewed by the respondent and it will be put in Client‘s account. 68. From the sale agreement dated 7th April 2022 it is clear that the car price was 1.3 million deposit of 700,000 leaving a balance of 600,000. The balance was to be paid in equal monthly installments which run from 10th May 2022 to 10th April 2024 at the sum of Kenya shillings 25,000 monthly. 69. The court is satisfied that the agreement was for more than one year as a result of which it is automatic that the respondent was supposed to shoulder insurance of the car in line with clause number 8 of the agreement. 70. This probably explains why the witness for the respondent confirmed that the car had a sticker for the month’s cover when it was sold. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19313/eng@2025-12-17 7

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71. The court also finds it off that the Respondent did not lodge a claim with the insurance company if at all the cover was in force. Determination; 72. This court finds that the appeal has merit. Costs; 73. In determining the issue of costs this court is guided by the principles as enunciated in the cases of Joseph Oduor Anode v Kenya Red Cross Society, Nairobi High Court Civil Suit No 66 of 2009; [2012] eKLR; and Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR); and Kuloba, R., (Ed) (2011) Judicial Hints on Civil Procedure Nairobi: Law Africa 2nd Edn p 94.6. Mackay, JPH., (Baron of Clashfern) (Ed) (1991) Halsbury’s Laws of England London: LexisNexis Butterworths 4th Edn ReIssue Vol 10 para 16 is instructive on the Court’s discretion on costs in general, where it was stated that; “ the Court has discretion as to whether costs are payable by one party to another, the amount of those costs and when they are to be paid. Where costs are in the discretion of the court, a party has no right to costs unless and until the court awards them to him, and the court has an absolute and unfettered discretion to award or not to award them. This discretion must be exercised judicially, it must not be exercised arbitrarily but in accordance with reason and justice. If the court decides to make an order about costs the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party, but the court may make a different.” 74. The Respondent shall shoulder costs. Order: 1. That the appeal be allowed. 2. That the judgement and decree of the honourable court is hereby set aside and substituted with a judgement in favour of the appellant as sought in the statement of claim. 3. The costs of the trial court and of the appeal to the appellant. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 17TH DAY OF DECEMBER, 2025. ................................... J. CHIGITI (SC) JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19313/eng@2025-12-17 8

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