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1. This is an appeal from the judgment of the Honourable Chief Magistrate Hon. J.B. Kalo delivered on the 18 September 2024 in Mombasa Chief Magistrates Court Civil Case No. E426 of 2023 in which the respondent in this appeal was the plaintiff and the appellants were the defendants.
2. According to the plaint filed in the suit in the lower court, on 11 August 2021 the appellants and the respondent entered into a contract according to which the appellants were to buy from the respondent new and used motorcycles at an agreed price Kshs. 20,622,500/=.
3. The respondent pleaded that in an attempt to pay for the motor cycles, the appellants issued several post-dated cheques but which were dishonoured, for lack of funds, upon presentation for payment. The respondent demanded payment of Kshs. 20,622,500/= out of which the appellants paid Kshs. 1,180,000/= leaving a balance of Kshs. 19,442,500/= outstanding. It is this amount that the respondent sued for in the lower court together with interest at commercial rates from the date of filing suit till payment in full. The respondent also sought for costs of the suit and interest thereof.
4. The appellants denied the respondent’s claim and filed a statement of defence to that end. They claimed that out of the 304 motor cycles the respondent was to supply under the agreement, only 114 units were delivered. Even then, the motor cycles that supplied were not fit purpose. The appellants also pleaded that the had paid the respondent the sum of Kshs. 1,180,000/=.
5. Upon the conclusion of the trial, the lower court allowed the respondent’s claim and entered judgment against the appellants jointly and severally for the sum of Kshs. 19,441,500/= together with interest at court rates from the date of filing suit till payment in full. The respondent was also awarded costs which attracted interest from the date of judgment till payment in full.
6. The appellants were dissatisfied with the judgment and so they filed the instant appeal. In their memorandum of appeal dated 20 September 2025, they raised the following grounds:
“1. That the Learned trial Magistrate erred in both law and fact by disregarding and or totally failing to accord the necessary consideration to the evidence tendered by the Appellants. By failing to evaluate the evidence tendered by the Appellants the Learned trial Magistrate reached a wrong conclusion.
2. That the Learned trial Magistrate erred in both law and fact by ignoring the issues that had been submitted to him for determination by the parties and proceeded to come up with his own issues for determination that were totally different from the issues that were for determination in the matter. It follows that had the Learned trial Magistrate considered and made findings on the issues that were before him for determination he would have arrived at a different decision altogether in respect to the matter before him.
3. That the Learned trial Magistrate erred in both law and fact by ignoring the evidence tendered by the Appellants to the effect that the Respondent only supplied to the Appellants 114 motor cycles out of the 304 motor cycles that it was to supply to them and further that the 114 motor cycles supplied by the Respondent to the Appellants were valued at Kshs 2,280,000 out of which the
Appellants had already paid the sum of Kshs 1,180,000 leaving a balance of Kshs 1,100,000 only. By failing to appreciate the above the Learned trial magistrate entered judgment in favour of the Respondent that would amount to unjust enrichment to the Respondent.
4. That the Learned trial Magistrate erred in both law and fact by entering judgment in favour of the Respondent for the sum of Kshs 19,442,500 whereas the Respondent was still in possession and had failed to supply 190 motor cycles out of the 304 motor cycles it was to supply the Appellants.
5. That the Learned trial Magistrate erred in both law and fact by failing to evaluate and make a decision on each and every issue that was placed before him for determination.
6. That the Learned trial Magistrate erred in both law and fact by being biased in favour of the Plaintiff instead of applying the law to all parties equally.
7. That the Learned trial Magistrate erred in both law and in fact in disregarding and or failing to accord the necessary consideration to the triable issues raised by the Appellants.”
7. If the court finds merit in all or any of these grounds, the appellants beseech it to allow the appeal and set aside the judgment of the lower court. They also urge that the claim against them in the lower court should be dismissed. They have also asked for costs of the suit in the lower court and the costs of this appeal.
8. Whether the appellant’s appeal is meritorious or not is a question that can only be answered by this Honourable Court after fresh evaluation of the evidence at the trial and the court coming to its own conclusions. In Mwanasokoni v Kenya Bus Services Ltd (1985) eKLR it was held that although an appellate court on appeal will not lightly differ from the judge at first instance on a finding of fact, it is undeniable that the appellate court has the power to examine and re-evaluate the evidence on a first appeal if this should become necessary.
9. In so holding, the Court of Appeal followed the decision of the House of Lords in Sotiros Shipping v Sauviet Sohold, The Times, March 16, 1983 where it was held:
“It is uncertain whether their Lordships should have reached the same conclusion on the evidence, but it is important that, sitting in the appellate Court they should be ever mindful of the advantages enjoyed of the trial judge who saw and heard the witnesses and was in a comparably better position than the Court of Appeal to assess the significance of what was said, how it was said, and, equally important, what was not said.”
10. Again, in Peters v Sunday Post Ltd (1958) EA 424, a decision of the Court of Appeal for Eastern Africa, Sir Kenneth O’Connor, P said at p 429:-
“It is a strong thing for an appellate Court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witness.”
11. Thus, this Honourable Court has the obligation, in exercise of its appellate jurisdiction, to evaluate the evidence at the trial and make its own factual findings that may either be consistent with or vary from those conclusions reached by the lower court. Regardless of the conclusions this court reaches, it is bound to bear in mind that the lower court had the advantage, which this Court does not have, of seeing and hearing the witnesses.
12. In his evidence, Paul Mbogo Echengi, the respondent’s manager, testified that 114 used motorcycles were delivered to the plaintiff and that the respondent was never notified that the motorcycles were defective in any manner. Upon cross-examination, Mbogo testified that each of the used motorcycles was worth Kshs. 20,000/= when “discounted”. Accordingly, under this arrangement, the total amount due was Kshs. 2,280,000/=. He admitted that the respondent did not supply 304 motorcycles as agreed and that the respondent remained in possession of 190 motorcycles.
13. On her part, the 2nd defendant, Jane Wacu Macharia, testified that she is the director of the 1st appellant. She admitted that, indeed, there was an agreement for the purchase of an assortment of new and used motorcycles. The appellants received 114 motorcycles, which they collected from the respondent’s premises.
14. As for the dishonoured cheques, she testified that she cancelled them because the respondent had not honoured his obligations under the contract and that the respondent banked the cheques without her consent. Ms Macharia also testified that she paid the respondent the sum of KShS. 1,180,000/=.
15. After considering the evidence before him, the learned Magistrate held, inter alia, as follows:
“The contract between the plaintiff and the defendants for the supply of motorcycles is not disputed. The defendant admitted receiving 114 motorcycle and added that she had paid Ksh 1,180,000. DWl alleged that the motorcycles supplied to the defendants by the plaintiff were defective but failed to prove that she communicated to the plaintiff about the alleged defective motorcycles nor whether the defendants sought to return the alleged defective motorcycles.
“On the balance of the evidence on record, the plaintiff has proved that motorcycles were delivered to the defendants and have not been paid for. The defendant on the other hand has failed to prove her defence that the motorcycles the defendants received from the plaintiff were defective. That allegation is a mere ploy by the defendants to avoid performing their part of the bargain in the contract.
“The court finds and holds that the plaintiff has proved its case against the defendants. Consequently, judgment is entered for the plaintiff against the defendants jointly and severally in the sum of Ksh19,442,500. The same shall attract interest at court rates from the date of filing suit until payment in full. The plaintiff is awarded costs of the suit to be borne by the defendants jointly and severally, which shall attract interest from the date hereof until payment in full.” ‘
16. As the learned magistrate correctly held, it is common ground that the appellants and the respondent entered into a contract according to which the respondent was to supply the appellants with what was described in the contract as “the assortment of both new and used motorcycles as set out in the schedule A”.
17. The price for each new unit was agreed at Kshs. 77,500/= while a used unit was to cost Kshs. 20,000/=. It is, however, not clear from the agreement or contract how many units were to be sold. But according to the terms of payment:
“After the expiry of first 30 days (1st September 2021), the purchaser shall pay a minimum sum of Kshs. 4,132,500 only per month of a duration of five months until the full purchase price is settled”.
18. If the appellants were to make monthly instalments of Kshs. 4,132,500/= for five months, it would imply that the total sum payable was Kshs. 20,662,500/=. It is not clear from the contract the number of new or old units that would have been delivered for this sum.
19. Although the assorted units are said to be “set out in Schedule A” there is no such schedule on the contract produced as evidence by the respondent in the lower court proceedings. This is also not clear from the respondent’s pleadings and, in particular, the plaint.
20. It is only in the appellants’ defence that the appellants pleaded that the respondent was to supply a total of 304 motorcycles and that of these vehicles, only 114 used units were supplied. To this end, Mbogo, the respondent’s manager, admitted in his testimony that only 114 units were delivered. He further testified as follows:
“114 motorcycles were supplied to the defendant by the plaintiff. Each used motorcycle was Kshs. 20,000 when discounted. The 114 motorcycles would cost Kshs. 2,280,000 if discounted. We did not supply the entire 304 motorcycles because she never came for them. The plaintiff in possession of 190 motorcycles. We did not supply new motorcycles to the defendant”
21. So, if the respondents supplied 114 used motorcycles, the amount due was Kshs. 2,280,000/= and not Kshs. 19,442,500/= which the plaintiff sued for and was awarded by the lower court.
22. Considering that the appellants paid and indeed the respondent admitted having received the sum of Kshs. 1,180,000/=, the outstanding debt due to paid to the respondent was Kshs. 2,280,000/= less the amount paid. The net amount due was thus Kshs.1,100,000/=.
23. The learned magistrate found as a fact and indeed it was common ground that only 114 motorcycles had been supplied and that Kshs. 1,180,000/= had been paid in what I would consider as part settlement of the purchase for the supplied motorcycles. The learned magistrate’s conclusion that the appellants owed the respondent the sum of Ksh19,442,500/= was clearly inconsistent with the evidence available and which the learned magistrate himself admitted as proof of the facts sought to be established. In short, the learned magistrate misdirected himself on the evidence and reached a wrong determination.
24. In the ultimate, I hold the appellants’ appeal to be merited. It is hereby allowed. The lower court judgment is set aside and substituted with an order for judgment for the plaintiff (the respondent in this appeal) in the sum of Kshs.1,100,000/= plus interest at court rates from the date of judgment. The appellants will have costs of the appeal. The respondent will have costs of the suit in the lower court. Orders accordingly.
Signed, dated, and delivered on 30 July 2025
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1. This is an appeal from the judgment of the Honourable Chief Magistrate Hon. J.B. Kalo delivered on the 18 September 2024 in Mombasa Chief Magistrates Court Civil Case No. E426 of 2023 in which the respondent in this appeal was the plaintiff and the appellants were the defendants.
2. According to the plaint filed in the suit in the lower court, on 11 August 2021 the appellants and the respondent entered into a contract according to which the appellants were to buy from the respondent new and used motorcycles at an agreed price Kshs. 20,622,500/=.
3. The respondent pleaded that in an attempt to pay for the motor cycles, the appellants issued several post-dated cheques but which were dishonoured, for lack of funds, upon presentation for payment. The respondent demanded payment of Kshs. 20,622,500/= out of which the appellants paid Kshs. 1,180,000/= leaving a balance of Kshs. 19,442,500/= outstanding. It is this amount that the respondent sued for in the lower court together with interest at commercial rates from the date of filing suit till payment in full. The respondent also sought for costs of the suit and interest thereof.
4. The appellants denied the respondent’s claim and filed a statement of defence to that end. They claimed that out of the 304 motor cycles the respondent was to supply under the agreement, only 114 units were delivered. Even then, the motor cycles that supplied were not fit purpose. The appellants also pleaded that the had paid the respondent the sum of Kshs. 1,180,000/=.
5. Upon the conclusion of the trial, the lower court allowed the respondent’s claim and entered judgment against the appellants jointly and severally for the sum of Kshs. 19,441,500/= together with interest at court rates from the date of filing suit till payment in full. The respondent was also awarded costs which attracted interest from the date of judgment till payment in full.
6. The appellants were dissatisfied with the judgment and so they filed the instant appeal. In their memorandum of appeal dated 20 September 2025, they raised the following grounds:
“1. That the Learned trial Magistrate erred in both law and fact by disregarding and or totally failing to accord the necessary consideration to the evidence tendered by the Appellants. By failing to evaluate the evidence tendered by the Appellants the Learned trial Magistrate reached a wrong conclusion.
2. That the Learned trial Magistrate erred in both law and fact by ignoring the issues that had been submitted to him for determination by the parties and proceeded to come up with his own issues for determination that were totally different from the issues that were for determination in the matter. It follows that had the Learned trial Magistrate considered and made findings on the issues that were before him for determination he would have arrived at a different decision altogether in respect to the matter before him.
3. That the Learned trial Magistrate erred in both law and fact by ignoring the evidence tendered by the Appellants to the effect that the Respondent only supplied to the Appellants 114 motor cycles out of the 304 motor cycles that it was to supply to them and further that the 114 motor cycles supplied by the Respondent to the Appellants were valued at Kshs 2,280,000 out of which the
Appellants had already paid the sum of Kshs 1,180,000 leaving a balance of Kshs 1,100,000 only. By failing to appreciate the above the Learned trial magistrate entered judgment in favour of the Respondent that would amount to unjust enrichment to the Respondent.
4. That the Learned trial Magistrate erred in both law and fact by entering judgment in favour of the Respondent for the sum of Kshs 19,442,500 whereas the Respondent was still in possession and had failed to supply 190 motor cycles out of the 304 motor cycles it was to supply the Appellants.
5. That the Learned trial Magistrate erred in both law and fact by failing to evaluate and make a decision on each and every issue that was placed before him for determination.
6. That the Learned trial Magistrate erred in both law and fact by being biased in favour of the Plaintiff instead of applying the law to all parties equally.
7. That the Learned trial Magistrate erred in both law and in fact in disregarding and or failing to accord the necessary consideration to the triable issues raised by the Appellants.”
7. If the court finds merit in all or any of these grounds, the appellants beseech it to allow the appeal and set aside the judgment of the lower court. They also urge that the claim against them in the lower court should be dismissed. They have also asked for costs of the suit in the lower court and the costs of this appeal.
8. Whether the appellant’s appeal is meritorious or not is a question that can only be answered by this Honourable Court after fresh evaluation of the evidence at the trial and the court coming to its own conclusions. In Mwanasokoni v Kenya Bus Services Ltd (1985) eKLR it was held that although an appellate court on appeal will not lightly differ from the judge at first instance on a finding of fact, it is undeniable that the appellate court has the power to examine and re-evaluate the evidence on a first appeal if this should become necessary.
9. In so holding, the Court of Appeal followed the decision of the House of Lords in Sotiros Shipping v Sauviet Sohold, The Times, March 16, 1983 where it was held:
“It is uncertain whether their Lordships should have reached the same conclusion on the evidence, but it is important that, sitting in the appellate Court they should be ever mindful of the advantages enjoyed of the trial judge who saw and heard the witnesses and was in a comparably better position than the Court of Appeal to assess the significance of what was said, how it was said, and, equally important, what was not said.”
10. Again, in Peters v Sunday Post Ltd (1958) EA 424, a decision of the Court of Appeal for Eastern Africa, Sir Kenneth O’Connor, P said at p 429:-
“It is a strong thing for an appellate Court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witness.”
11. Thus, this Honourable Court has the obligation, in exercise of its appellate jurisdiction, to evaluate the evidence at the trial and make its own factual findings that may either be consistent with or vary from those conclusions reached by the lower court. Regardless of the conclusions this court reaches, it is bound to bear in mind that the lower court had the advantage, which this Court does not have, of seeing and hearing the witnesses.
12. In his evidence, Paul Mbogo Echengi, the respondent’s manager, testified that 114 used motorcycles were delivered to the plaintiff and that the respondent was never notified that the motorcycles were defective in any manner. Upon cross-examination, Mbogo testified that each of the used motorcycles was worth Kshs. 20,000/= when “discounted”. Accordingly, under this arrangement, the total amount due was Kshs. 2,280,000/=. He admitted that the respondent did not supply 304 motorcycles as agreed and that the respondent remained in possession of 190 motorcycles.
13. On her part, the 2nd defendant, Jane Wacu Macharia, testified that she is the director of the 1st appellant. She admitted that, indeed, there was an agreement for the purchase of an assortment of new and used motorcycles. The appellants received 114 motorcycles, which they collected from the respondent’s premises.
14. As for the dishonoured cheques, she testified that she cancelled them because the respondent had not honoured his obligations under the contract and that the respondent banked the cheques without her consent. Ms Macharia also testified that she paid the respondent the sum of KShS. 1,180,000/=.
15. After considering the evidence before him, the learned Magistrate held, inter alia, as follows:
“The contract between the plaintiff and the defendants for the supply of motorcycles is not disputed. The defendant admitted receiving 114 motorcycle and added that she had paid Ksh 1,180,000. DWl alleged that the motorcycles supplied to the defendants by the plaintiff were defective but failed to prove that she communicated to the plaintiff about the alleged defective motorcycles nor whether the defendants sought to return the alleged defective motorcycles.
“On the balance of the evidence on record, the plaintiff has proved that motorcycles were delivered to the defendants and have not been paid for. The defendant on the other hand has failed to prove her defence that the motorcycles the defendants received from the plaintiff were defective. That allegation is a mere ploy by the defendants to avoid performing their part of the bargain in the contract.
“The court finds and holds that the plaintiff has proved its case against the defendants. Consequently, judgment is entered for the plaintiff against the defendants jointly and severally in the sum of Ksh19,442,500. The same shall attract interest at court rates from the date of filing suit until payment in full. The plaintiff is awarded costs of the suit to be borne by the defendants jointly and severally, which shall attract interest from the date hereof until payment in full.” ‘
16. As the learned magistrate correctly held, it is common ground that the appellants and the respondent entered into a contract according to which the respondent was to supply the appellants with what was described in the contract as “the assortment of both new and used motorcycles as set out in the schedule A”.
17. The price for each new unit was agreed at Kshs. 77,500/= while a used unit was to cost Kshs. 20,000/=. It is, however, not clear from the agreement or contract how many units were to be sold. But according to the terms of payment:
“After the expiry of first 30 days (1st September 2021), the purchaser shall pay a minimum sum of Kshs. 4,132,500 only per month of a duration of five months until the full purchase price is settled”.
18. If the appellants were to make monthly instalments of Kshs. 4,132,500/= for five months, it would imply that the total sum payable was Kshs. 20,662,500/=. It is not clear from the contract the number of new or old units that would have been delivered for this sum.
19. Although the assorted units are said to be “set out in Schedule A” there is no such schedule on the contract produced as evidence by the respondent in the lower court proceedings. This is also not clear from the respondent’s pleadings and, in particular, the plaint.
20. It is only in the appellants’ defence that the appellants pleaded that the respondent was to supply a total of 304 motorcycles and that of these vehicles, only 114 used units were supplied. To this end, Mbogo, the respondent’s manager, admitted in his testimony that only 114 units were delivered. He further testified as follows:
“114 motorcycles were supplied to the defendant by the plaintiff. Each used motorcycle was Kshs. 20,000 when discounted. The 114 motorcycles would cost Kshs. 2,280,000 if discounted. We did not supply the entire 304 motorcycles because she never came for them. The plaintiff in possession of 190 motorcycles. We did not supply new motorcycles to the defendant”
21. So, if the respondents supplied 114 used motorcycles, the amount due was Kshs. 2,280,000/= and not Kshs. 19,442,500/= which the plaintiff sued for and was awarded by the lower court.
22. Considering that the appellants paid and indeed the respondent admitted having received the sum of Kshs. 1,180,000/=, the outstanding debt due to paid to the respondent was Kshs. 2,280,000/= less the amount paid. The net amount due was thus Kshs.1,100,000/=.
23. The learned magistrate found as a fact and indeed it was common ground that only 114 motorcycles had been supplied and that Kshs. 1,180,000/= had been paid in what I would consider as part settlement of the purchase for the supplied motorcycles. The learned magistrate’s conclusion that the appellants owed the respondent the sum of Ksh19,442,500/= was clearly inconsistent with the evidence available and which the learned magistrate himself admitted as proof of the facts sought to be established. In short, the learned magistrate misdirected himself on the evidence and reached a wrong determination.
24. In the ultimate, I hold the appellants’ appeal to be merited. It is hereby allowed. The lower court judgment is set aside and substituted with an order for judgment for the plaintiff (the respondent in this appeal) in the sum of Kshs.1,100,000/= plus interest at court rates from the date of judgment. The appellants will have costs of the appeal. The respondent will have costs of the suit in the lower court. Orders accordingly.
Signed, dated, and delivered on 30 July 2025
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