1. The Respondent instituted SCCOMM E9748/2023 before the Small Claims Court, seeking judgment against the Appellant for the sum of Kshs. 398,000/= together with costs and interest.
2. The Respondent’s claim arose from a business transaction in which he purchased a gearbox from the Appellant. He averred that he paid Kshs. 245,000/= for the gearbox, which, upon delivery, installation, and testing, was found to be faulty. He thereafter claimed a refund of the purchase price, as well as additional expenses incurred, including the cost of transporting the gearbox to Mombasa for repair, labour charges, parking fees, towing costs, and other related expenditures.
3. The Appellant opposed the claim, denying liability. He contended that the gearbox was returned damaged, specifically the gear i-stop sensor, but he nonetheless repaired it at a cost of Kshs. 20,000/=. The Appellant further stated that he refunded the Respondent Kshs. 217,000/=, which in his view settled the matter. He also counterclaimed for the said Kshs. 20,000/=.
4. On 29th October 2024, the trial court delivered judgment in favour of the Respondent, holding that the Respondent had proved his case on a balance of probabilities. The Court awarded the Respondent the following sums:
a) Balance of the purchase price – Kshs. 28,000/=
b) Parking expenses – Kshs. 61,800/=
c) Labour expenses – Kshs. 35,000/=
d) Towing expenses – Kshs. 38,000/=
e) Costs of the suit on the lower scale
f) Interest on (a) to (e) from the date of judgment until payment in full
5. Dissatisfied with the said decision, the Appellant lodged the present appeal citing the following grounds:
i. That the Court erred in law in finding that a refund constitutes proof that the goods were defective.
ii. That the Court erred in failing to hold that a buyer acting on their own judgment assumes the risk for resulting errors.
iii. That the Court erred in law by failing to find that special damages are not recoverable when the buyer is at fault.
iv. That the Court erred in holding the seller liable for consequences arising from the buyer’s disregard of professional advice.
v. That the Court erred in law by accepting invoices as sufficient proof of special damages.
6. The Appellant thus prayed that the appeal be allowed and the judgment of 29th October 2024 be set aside.
7. The appeal was canvassed by way of written submissions. The Appellant filed submissions dated 11th November 2024, and the Respondent filed his on 10th April 2025.
Analysis and Determination
8. This being an appeal from the Small Claims Court, the jurisdiction of this Court is limited to questions of law only, as provided under Section 38 of the Small Claims Court Act:-
“Appeals
(1) A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law.
(2) An appeal from any decision or order referred to in subsection (1) shall be final.”
9. The Court of Appeal in Otieno, Ragot & Company Advocates v National Bank of Kenya Limited [2020] eKLR observed that on second appeal, a court should only interfere where it is shown that the lower courts misapprehended the law or made perverse findings not supported by the evidence. The Court stated that:
“This is a second appeal. I am alive to my duty as a second appellate court to determine matters of law only unless it is shown that the courts 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. (See: Stanley N. Muriithi & Another versus Bernard Munene Ithiga (2016) eKLR).”
10. I have carefully considered the record of appeal, the memorandum of appeal, and the respective submissions. The core issue for determination is whether the trial court erred in finding that the Respondent had proved his case on a balance of probabilities.
11. A perusal of the lower court judgment reveals that it found the gearbox sold to the Respondent to be unfit for its intended purpose. The court noted that the Appellant refunded the Respondent even before the matter was determined, a fact the Hon. Adjudicator interpreted as tacit acceptance of fault.
12. While the Appellant argued that the refund was made in good faith and did not amount to admission of liability, the trial court weighed this against the evidence presented and concluded otherwise. The mere assertion that the gearbox was damaged by the Respondent was not substantiated.
13. The Respondent, on the other hand, maintained that the lower court based its findings not solely on the refund but on the overall factual matrix and documentation presented at trial.
14. Having considered the evidence adduced by the parties at trial, it is my view that the trial court properly evaluated the evidence and applied the applicable legal principles. I agree that the finding that the gearbox was defective and unfit for purpose was supported by the circumstances, including the refund and the lack of evidence by the Appellant to shift blame to the Respondent.
15. The next issue worthy of consideration is whether the trial court erred in awarding special damages.
16. It is well settled that special damages must be specifically pleaded and strictly proved. In Capital Fish Kenya Limited v Kenya Power & Lighting Co. Ltd [2016] eKLR, the Court of Appeal held that special damages represent actual pecuniary loss and must not only be specifically pleaded but must equally be proved by credible evidence. The Court stated that:
“Starting with the first issue, it is trite law that special damages must not only be specifically pleaded, they must also be strictly proved with as much particularity as circumstances permit. See National Social Security Fund Board of Trustees vs Sifa International Limited (2016) eKLR, Macharia & Waiguru vs Muranga Municipal Council & Another (2014) eKLR and Provincial Insurance Co. EA Ltd vs Mordekai Mwanga Nandwa, KSM CACA 179 of 1995 (ur). In the latter case this Court was emphatic that
“… It is now well settled that special damages need to be specifically pleaded before they can be awarded. Accordingly, none can be awarded for failure to plead. It is equally clear that no general damages may be awarded for breach of contract …”.
17. In the present case, the Respondent itemized and pleaded the various expenses incurred as a result of the faulty gearbox and submitted supporting documentation, including invoices and receipts. The trial court scrutinized these documents and accepted them as sufficient proof. It also considered the Appellant’s claimed expense of Kshs. 20,000/= for repair.
18. I am satisfied that the lower court properly applied the law on special damages and correctly found that the Respondent had met the required standard of proof on a balance of probabilities.
19. It is also noteworthy that an examination of most grounds raised by the Appellant reveals that the challenge is mainly on the factual findings of the trial court. However, under Section 38 of the Small Claims Court Act, this Court’s jurisdiction is limited strictly to matters of law. The Appellant has not demonstrated any serious misapplication of the law or legal principle to warrant this Court’s interference.
20. In the result, I find no error in the trial court’s reasoning or conclusions.
Disposition
i. The appeal is hereby dismissed for want of merit. The judgment of the Small Claims Court dated 29th October 2024 is upheld in its entirety.
ii. The Appellant shall bear the costs of this appeal, which is hereby assessed at Kshs. 50,000/=.
21. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
26TH DAY OF JUNE 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
Rosana…………………..for the Applicant
Kinyanjui….…………....for the Respondent
2. The Respondent’s claim arose from a business transaction in which he purchased a gearbox from the Appellant. He averred that he paid Kshs. 245,000/= for the gearbox, which, upon delivery, installation, and testing, was found to be faulty. He thereafter claimed a refund of the purchase price, as well as additional expenses incurred, including the cost of transporting the gearbox to Mombasa for repair, labour charges, parking fees, towing costs, and other related expenditures.
3. The Appellant opposed the claim, denying liability. He contended that the gearbox was returned damaged, specifically the gear i-stop sensor, but he nonetheless repaired it at a cost of Kshs. 20,000/=. The Appellant further stated that he refunded the Respondent Kshs. 217,000/=, which in his view settled the matter. He also counterclaimed for the said Kshs. 20,000/=.
4. On 29th October 2024, the trial court delivered judgment in favour of the Respondent, holding that the Respondent had proved his case on a balance of probabilities. The Court awarded the Respondent the following sums:
a) Balance of the purchase price – Kshs. 28,000/=
b) Parking expenses – Kshs. 61,800/=
c) Labour expenses – Kshs. 35,000/=
d) Towing expenses – Kshs. 38,000/=
e) Costs of the suit on the lower scale
f) Interest on (a) to (e) from the date of judgment until payment in full
5. Dissatisfied with the said decision, the Appellant lodged the present appeal citing the following grounds:
i. That the Court erred in law in finding that a refund constitutes proof that the goods were defective.
ii. That the Court erred in failing to hold that a buyer acting on their own judgment assumes the risk for resulting errors.
iii. That the Court erred in law by failing to find that special damages are not recoverable when the buyer is at fault.
iv. That the Court erred in holding the seller liable for consequences arising from the buyer’s disregard of professional advice.
v. That the Court erred in law by accepting invoices as sufficient proof of special damages.
6. The Appellant thus prayed that the appeal be allowed and the judgment of 29th October 2024 be set aside.
7. The appeal was canvassed by way of written submissions. The Appellant filed submissions dated 11th November 2024, and the Respondent filed his on 10th April 2025.
Analysis and Determination
8. This being an appeal from the Small Claims Court, the jurisdiction of this Court is limited to questions of law only, as provided under Section 38 of the Small Claims Court Act:-
“Appeals
(1) A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law.
(2) An appeal from any decision or order referred to in subsection (1) shall be final.”
9. The Court of Appeal in Otieno, Ragot & Company Advocates v National Bank of Kenya Limited [2020] eKLR observed that on second appeal, a court should only interfere where it is shown that the lower courts misapprehended the law or made perverse findings not supported by the evidence. The Court stated that:
“This is a second appeal. I am alive to my duty as a second appellate court to determine matters of law only unless it is shown that the courts 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. (See: Stanley N. Muriithi & Another versus Bernard Munene Ithiga (2016) eKLR).”
10. I have carefully considered the record of appeal, the memorandum of appeal, and the respective submissions. The core issue for determination is whether the trial court erred in finding that the Respondent had proved his case on a balance of probabilities.
11. A perusal of the lower court judgment reveals that it found the gearbox sold to the Respondent to be unfit for its intended purpose. The court noted that the Appellant refunded the Respondent even before the matter was determined, a fact the Hon. Adjudicator interpreted as tacit acceptance of fault.
12. While the Appellant argued that the refund was made in good faith and did not amount to admission of liability, the trial court weighed this against the evidence presented and concluded otherwise. The mere assertion that the gearbox was damaged by the Respondent was not substantiated.
13. The Respondent, on the other hand, maintained that the lower court based its findings not solely on the refund but on the overall factual matrix and documentation presented at trial.
14. Having considered the evidence adduced by the parties at trial, it is my view that the trial court properly evaluated the evidence and applied the applicable legal principles. I agree that the finding that the gearbox was defective and unfit for purpose was supported by the circumstances, including the refund and the lack of evidence by the Appellant to shift blame to the Respondent.
15. The next issue worthy of consideration is whether the trial court erred in awarding special damages.
16. It is well settled that special damages must be specifically pleaded and strictly proved. In Capital Fish Kenya Limited v Kenya Power & Lighting Co. Ltd [2016] eKLR, the Court of Appeal held that special damages represent actual pecuniary loss and must not only be specifically pleaded but must equally be proved by credible evidence. The Court stated that:
“Starting with the first issue, it is trite law that special damages must not only be specifically pleaded, they must also be strictly proved with as much particularity as circumstances permit. See National Social Security Fund Board of Trustees vs Sifa International Limited (2016) eKLR, Macharia & Waiguru vs Muranga Municipal Council & Another (2014) eKLR and Provincial Insurance Co. EA Ltd vs Mordekai Mwanga Nandwa, KSM CACA 179 of 1995 (ur). In the latter case this Court was emphatic that
“… It is now well settled that special damages need to be specifically pleaded before they can be awarded. Accordingly, none can be awarded for failure to plead. It is equally clear that no general damages may be awarded for breach of contract …”.
17. In the present case, the Respondent itemized and pleaded the various expenses incurred as a result of the faulty gearbox and submitted supporting documentation, including invoices and receipts. The trial court scrutinized these documents and accepted them as sufficient proof. It also considered the Appellant’s claimed expense of Kshs. 20,000/= for repair.
18. I am satisfied that the lower court properly applied the law on special damages and correctly found that the Respondent had met the required standard of proof on a balance of probabilities.
19. It is also noteworthy that an examination of most grounds raised by the Appellant reveals that the challenge is mainly on the factual findings of the trial court. However, under Section 38 of the Small Claims Court Act, this Court’s jurisdiction is limited strictly to matters of law. The Appellant has not demonstrated any serious misapplication of the law or legal principle to warrant this Court’s interference.
20. In the result, I find no error in the trial court’s reasoning or conclusions.
Disposition
i. The appeal is hereby dismissed for want of merit. The judgment of the Small Claims Court dated 29th October 2024 is upheld in its entirety.
ii. The Appellant shall bear the costs of this appeal, which is hereby assessed at Kshs. 50,000/=.
21. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
26TH DAY OF JUNE 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
Rosana…………………..for the Applicant
Kinyanjui….…………....for the Respondent