Wanyama v Washolo (Commercial Case E008 of 2024) [2024] SCC 28 (KLR)

Parties' pleadings, documents, and the evidence led during the hearing of this matter have been duly considered. The only issue for determination is whether the Claimant sold the Respondent a faulty fuel pump. CW1 stated that on 31st May 2023 he entered into an agreement (Cexh.1)with the Respondent for the purchase of a fuel pump for a consideration of Kshs. 250,000/=. The Respondent paid Kshs. 170,000/= for the fuel pump but failed to clear the balance of Kshs. 80,000/= by 01 st December 2023 as set out in the fuel pump purchase agreement dated 31 st May 2023. He added that he sold the fuel pump after the Respondent had inspected the pump through CW3. Therefore, it was his view that he sold the fuel pump to the Respondent when the same was in good working condition. He attributed the fault in the fuel pump to an electricity surge that occurred after the Respondent had taken possession of the fuel pump. The Claimant’s evidence was corroborated by CW2 who stated that he informed the Respondent that CW1 wanted to sell his fuel pump. The Respondent agreed to purchase the fuel pump after CW3 had inspected the said fuel pump and confirmed to him that the fuel pump was in good working condition. Three weeks after the Respondent had taken possession of the fuel pump, the Respondent told him that the fuel pump was faulty. CW3 offered to repair the fuel pump but the Respondent chose to engage another electrician. CW3; a fuel pump technician, on the other hand, stated that the Respondent instructed him to go inspect the fuel pump that the Claimant wanted to sell to him. He later moved the fuel pump to the Respondent’s business premises. The fuel pump dispensed petrol well after its installation. Three weeks after the fuel pump’s installation, the Respondent told him that the Kitale SCC CC. No. E008 of 2024 Page 2 of 5 Judgment

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fuel pump was faulty. He inspected the fuel pump only to find out that the fuel pump’s mortar was faulty. RW1 admitted entering into an agreement with CW1 on 31st May 2023 for the purchase of a fuel pump at Kshs. 250,000/=. He admitted owing CW1 Kshs. 80,000/= as at 01st December 2023. He reiterated that CW1 sold him a faulty pump. It is common ground that the Claimant sold a fuel pump to the Respondent at Kshs. 250,000/=. It is also not in dispute that the Respondent owes the Claimant Kshs. 80,000/= arising from the fuel pump purchase agreement dated 31st May 2023 between the parties herein. The evidence led before this court shows that the Respondent did not dispute having instructed CW3 to inspect the fuel pump before the Respondent purchased the same. The Respondent purchased the fuel pump after the inspection. Whereas the Respondent claimed that the Claimant sold him a faulty pump, he did not lead any evidence to that effect. Therefore, this court finds that the Respondent did not prove that the Claimant sold him a faulty fuel pump. In any event, even if this court was to find that the Claimant sold a faulty pump to the Respondent, it was a term of the fuel pump purchase agreement between the parties herein that the fuel pump was being sold on an as–is basis. That is an express term of the fuel pump purchase agreement between the parties herein. It is a longstanding principle of law that parties to a contract are bound by the terms and conditions thereof and that it is not the business of the Courts to rewrite such contracts. In National Bank of Kenya Ltd vs. Pipe Plastic Samkolit (K) Ltd (2002) 2 E.A. 503, (2011) eKLR the Court of Appeal at page 507 stated as follows: - Kitale SCC CC. No. E008 of 2024 Page 3 of 5 Judgment

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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. In Pius Kimaiyo Langat vs. Co-operative Bank of Kenya Ltd (2017) eKLR the Court of Appeal further stated that: We are alive to the hallowed legal maxim that it is not the business of Courts to rewrite contracts between parties, They are bound by the terms of their contracts, unless coercion, fraud or undue influence are pleaded and proved. The Claimant herein did not plead coercion, fraud or undue influence in his Response to the Claim. Therefore, the Respondent must be bound by the terms of the fuel pump purchase agreement dated 01st May 2023. This court having found that the Respondent must be bound by the terms of the fuel pump purchase agreement dated 01 st May 2023, it follows that the Respondent’s Counter Claim for the sum of Kshs. 100,000/= was not proved. DISPOSITION The upshot is that judgment is entered against the Respondent in the following terms: a) A declaration is hereby made that the Respondent is indebted to the Claimant the sum of Kshs. 80,000/=(Kenya Shillings Eighty Thousand) only b) The sum of Kshs. 80,000/=(Kenya Shillings Eighty Thousand) only in (a) above shall attract interest at court rate with effect from 01st December 2023 till payment in full c) The Respondent’s Counter Claim is hereby dismissed with costs d) The costs due to the Claimant are hereby assessed at Kshs. 2,000/= (Kenya Shillings Two Thousand) only. Kitale SCC CC. No. E008 of 2024 Page 4 of 5 Judgment

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Judgment accordingly. Read, signed, and delivered in open court at Kitale this 14 th day of March 2024 T.O. OMONO ADJUDICATOR In the presence of: Kitale SCC CC. No. E008 of 2024 Page 5 of 5 Judgment

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