Maina v Autoliteral Motors Ltd

6. Under the agreement, the Defendant undertook to import the motor vehicle on behalf of the Plainti and to comply with the legal formalities necessary to transfer and register ownership of the vehicle in the Plainti’s name. 7. The agreed consideration appearing in the written agreement was KShs. 1,500,000. The agreement further recorded that the Plainti had paid an initial amount of KShs. 400,000, with the balance to be paid and updated as agreed before the arrival of the motor vehicle. 8. The Plainti testied that she thereafter made payments towards the transaction totalling KShs. 1,050,000, as follows: a. KShs. 200,000 on 3rd November 2024 at about 15:18 hours; b. KShs. 200,000 on 3rd November 2024 at about 15:21 hours; c. KShs. 400,000 on 13th November 2024 at about 10:02 hours; and d. KShs. 250,000 on 22nd November 2024 at about 09:26 hours. 9. The payment records produced by the Plainti corroborate the payments. Two of the transfers of KShs. 200,000 were made to an account associated with the Defendant’s director, while the subsequent payments of KShs. 400,000 and KShs. 250,000 were made to the Defendant company. 10. In addition to the Sales Agreement and proof of payment, the Plainti produced documents relating to the subject vehicle, including a Certicate of Roadworthiness relating to a Mazda Axela inspected in Japan on 29th November 2024. 11. The Plainti’s complaint, however, was that despite the payments made, the Defendant did not deliver the motor vehicle to her and did not provide a satisfactory account or credible information concerning its eventual delivery. 12. She testied that she made several follow-ups with the Defendant seeking information regarding the progress of the importation and requesting either delivery of the vehicle or a refund of the monies paid, but without success. 13. Consequently, through her advocates, the Plainti issued a demand letter dated 27th August 2025, demanding a refund of the amounts paid. The demand was subsequently transmitted to the Defendant through electronic mail on 29th August 2025. 14. According to the Plainti, the Defendant neither delivered the motor vehicle nor refunded the KShs. 1,050,000, thereby precipitating the present proceedings. Issues for Determination 15. Having considered the pleadings, the oral evidence and the documentary material placed before the Court, the following issues arise for determination: a. Whether there existed a valid and enforceable agreement between the parties; b. Whether the Plainti proved payment of KShs. 1,050,000 to or for the benet of the Defendant; c. Whether the Defendant breached the agreement; d. Whether the Plainti is entitled to refund of the KShs. 1,050,000; https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/840/eng@2026-08-27 2

page 2 of 5

e. Whether general damages are recoverable for the breach complained of; and f. Who should bear the costs of the suit. Whether there was a Valid Contract 16. The starting point is the written Sales Agreement dated 1st November 2024. The agreement identies the Plainti as the purchaser and the Defendant as the importer. It identies the subject matter as a Mazda Axela 2017, 1500cc petrol motor vehicle, and xes the consideration at KShs. 1,500,000. 17. The agreement is signed and bears the Defendant’s company stamp. There is therefore adequate documentary evidence demonstrating an intention by the parties to create legal relations, an identied subject matter and agreed consideration. 18. I am consequently satised on a balance of probabilities that there was a valid contractual relationship between the Plainti and the Defendant. Whether the Plainti Proved Payment of KShs. 1,050,000 19. Sections 107 and 108 of the Evidence Act place the burden upon a party asserting a fact to establish that fact. The Plainti specically pleaded payment of KShs. 1,050,000 and produced documentary evidence of four separate transactions amounting to that sum. 20. The payment advice dated 3rd November 2024 shows two transactions of KShs. 200,000 each. Further documentary evidence demonstrates payment of KShs. 400,000 on 13th November 2024 and KShs. 250,000 on 22nd November 2024. 21. These four payments amount to: KShs. 200,000 + KShs. 200,000 + KShs. 400,000 + KShs. 250,000 = KShs. 1,050,000. The payments were expressly referenced as instalments towards the motor vehicle transaction. I therefore nd that the Plainti has strictly proved payment of KShs. 1,050,000 towards the transaction. Whether the Defendant Breached the Agreement 22. The central question is whether the failure to deliver the vehicle or otherwise satisfactorily conclude the transaction amounted to breach of contract. The Court has considered that the written agreement reected a total purchase consideration of KShs. 1,500,000, whereas the amount eventually proved as having been paid by the Plainti was KShs. 1,050,000. 23. The Court has further considered the provision in the agreement that the balance would be paid and updated as agreed before the vehicle’s arrival. 24. The fact that the entire purchase price had not been paid is therefore relevant. It would be incorrect for the Court simply to treat the KShs. 1,050,000 as payment of the entire contractual consideration when the express written agreement provides otherwise. Nevertheless, that does not dispose of the dispute. 25. The Defendant received and retained KShs. 1,050,000 pursuant to a specic transaction. The Plainti’s evidence was that notwithstanding substantial payment, she was never given possession of the vehicle and the transaction was never completed. 26. There is also no evidence before the Court demonstrating that the Defendant issued a demand to the Plainti for the outstanding KShs. 450,000, notied her that the vehicle had arrived and was available for release upon settlement of the balance, or otherwise called upon her to complete her side of the bargain within a specied period. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/840/eng@2026-08-27 3

page 3 of 5

27. The Certicate of Roadworthiness demonstrates that a Mazda Axela corresponding generally with the contractual description underwent inspection in Japan on 29th November 2024. That document may demonstrate progress in the importation process, but it does not establish delivery to the Plainti, registration in her name, arrival in Kenya, or lawful transfer of possession to her. 28. Most importantly, following the breakdown of the transaction, the Plainti formally demanded either performance or refund. There is no evidence before this Court that the Defendant thereafter delivered the vehicle or returned any portion of the KShs. 1,050,000. 29. A contracting party cannot indenitely retain substantial consideration paid under a contract while neither rendering the promised performance nor accounting for the consideration received. 30. On the evidence before me, I am satised that the Plainti has demonstrated, on a balance of probabilities, that the contractual transaction failed to reach completion through delivery of the vehicle and that the Defendant continued retaining the Plainti’s money despite demand for its return. I therefore nd the Defendant in breach of its contractual obligations to the Plainti. Refund of KShs. 1,050,000 31. The Plainti pleaded the sum of KShs. 1,050,000 as special damages. The law concerning special damages is settled. They must not only be specically pleaded but must also be strictly proved. See Hahn v Singh [1985] KLR 716. 32. In the present case, the amount was specically pleaded and is supported by documentary proof of the individual transactions. This is not a speculative claim for anticipated prots or consequential loss. It is a claim for restitution of money actually paid to the Defendant under the unsuccessful transaction. 33. The Court nds that allowing the Defendant to retain the sum when the Plainti neither received the vehicle nor obtained a refund would result in an unjustied retention of the Plainti’s money. Accordingly, the Plainti is entitled to recover KShs. 1,050,000 from the Defendant. General Damages for Breach of Contract 34. The Plainti has also prayed for general damages for breach of agreement. The Court of Appeal has repeatedly stated that, as a general rule, general damages are not recoverable for breach of contract. 35. In Kenya Tourist Development Corporation v Sundowner Lodge Limited [2018] eKLR, the Court of Appeal rearmed that general damages are ordinarily not recoverable for breach of contract and that compensation must ordinarily represent losses properly quantied, pleaded and proved. 36. The same principle is reected in Dharamshi v Karsan [1974] EA 41 and Securicor Courier (K) Ltd v Benson David Onyango & Another [2008] eKLR. The Plainti pleaded that she suered nancial loss, emotional distress and inconvenience. However, no distinct monetary loss over and above the KShs. 1,050,000 was specically proved. 37. To award an additional unspecied sum as general damages after ordering restitution of the entire proven payment would, in the circumstances of this case, oend the settled principles governing contractual damages and risk duplicating compensation. I therefore decline the prayer for general damages for breach of contract. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/840/eng@2026-08-27 4

page 4 of 5

Interest 38. The Plainti specically prayed for interest on the KShs. 1,050,000 from the date of ling suit. Under section 26 of the Civil Procedure Act, the Court has discretion to award interest on the principal sum adjudged. The money in question had already been paid to the Defendant before institution of the suit and remained unrecovered notwithstanding demand. I therefore nd it fair and just to award interest on the principal amount of KShs. 1,050,000 at court rates from the date of ling suit until payment in full. 39. Although the demand letter referred to additional interest and legal fees, those amounts were not pleaded in the Plaint as distinct special damages and are therefore not separately awardable in this judgment. Costs 40. Section 27 of the Civil Procedure Act provides that costs ordinarily follow the event unless the Court for good reason orders otherwise. The Plainti has substantially succeeded in her claim. There is no sucient reason for departing from the ordinary rule. The Plainti shall therefore have the costs of the suit. Disposition 41. In the result, judgment is entered for the Plainti against the Defendant in the following terms: a. KShs. 1,050,000 being refund of the amount paid by the Plainti to the Defendant towards the motor vehicle transaction; b. Interest on KShs. 1,050,000 at court rates from the date of ling suit until payment in full; c. The prayer for general damages for breach of contract is declined; d. The Plainti shall have the costs of the suit together with interest thereon at court rates from the date of assessment or taxation until payment in full. Orders accordingly. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT MOMBASA THIS 27TH AUGUST 2026. ............................................ EMILY M. MWAMUYE SENIOR RESIDENT MAGISTRATE https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/840/eng@2026-08-27 5

page 5 of 5