JUDGEMENT
1. This is a judgement arising out of an appeal against the Judgement of Honourable Wamae E. M. Muindi (RM) learned Adjudicator, delivered on 25/4/2024. This is in respect of a small claims action in SCCC No E5796 of 2023 Celestine Madowo vs Ottobock Kenya Limited .
2. The Learned Adjudicator entered judgment in favour of the Respondent against the Appellant as follows;
a) The Appellant found liable for supplying a defective foot. The Respondent was therefore entitled to the purchase price paid to the Respondent.
b) Judgement entered for the Respondent against the Appellant for Kshs.327,174.39 together with interest at Court rates from the date of filing suit until payment in full.
c) The Appellant to pay to the Respondent the costs of the suit.
Background Facts
3. The Appellant was the Respondent before the Small Claims Court, while the Respondent herein was the Claimant.
4. The Respondent has entered into a contract with the Appellant on 9/2/2023 for the fitting of a transtibial fitting with trias and limb. This being a prosthetic foot, the Respondent was thereafter fitted with the limb. It however broke down before the expiry of the warranty period of 2 years.
5. The Respondent sued before the Small Claims Court for compensation in the sum of Ks. 1,000,000/=. This was in respect to the prosthetic limb which she maintained was defective. The claim was in respect to compensation by way of damages arising out the breach of contract.
6. The Appellant denied the claim. It blamed the Respondent for using the prosthetic limb without the foot cover provided. That she did not take proper care of the trias as well as the foot cover. It prayed that the suit be dismissed.
7. The Learned Adjudicator declined to award any general damages but awarded the Respondent a sum of Kshs.327,174.39 being the refund of the cost of the prosthesis.
8. It is the Judgement of the Learned adjudicator in favour of the Respondent against the Appellant that has triggered this appeal.
9. The Appeal was canvassed by way of written submissions. The Court has seen and read the Appellants’ written submissions dated 30/9/2024. The Respondent filed submissions dated 13/01/2025 which the Court has also seen and read.
Issues of determination
10. The Court having perused the Memorandum of appeal the Record of Appeal and the submissions filed, frames two issues for determination as follows?
a) Whether the Appeal is merited.
b) What reliefs lie from this Appeal.
Analysis
11. This is an Appeal from the Small Claims Court. It is the first and the last appeal. An appeal to this Court is pursuant to Section 38 of the Small Claims Court Act. It states as follows;
(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.
12. An appeal to this Court is therefore narrowly circumscribed. It lies only on points of law. This Court is not bound to review the evidence presented before the Small Claims Court, and arrive at its own conclusion. See Mwaura v Wambua (Commercial Appeal E003 of 2024) [2024] KEHC 13897 (KLR) (11 November 2024) (Judgment) .
“This being an appeal from the Small Claims Court, the duty of
the court is circumscribed under Section 38 of the Small
Claims Court Act which provides as doth:
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.
An appeal from any decision or order referred to in subsection (1) shall be final.
The duty of the court is to defer to the findings of fact of the adjudicator and analyse the matter for issues of law. The issues of law are either due to the subject matter or the finding of law by the court.”
13. The Court will therefore decline the invitation by the Appellant to apply the principles set out in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A 123 .
14. The Court proceeds to analyse the two issues framed as follows;
a) Whether the Appeal is Merited.
15. There are seven (7) Grounds of Appeal raised. A perusal of the grounds reveal that they challenge the Appeal on factual grounds. They challenge the learned Adjudicator’s appreciation of the facts as presented before the Small Claims Court.
16. When it comes to matter of facts the Court will not interfere unless the Learned Adjudicator’s appreciation of the facts of the case, on the lack thereof results in an absurd or perverse decision. See the case of Mwita v Woodventure (K) Limited & another (Civil Appeal 58 of 2017) [2022] KECA 628 (KLR) (8 July 2022) (Judgment) .
“This is a second appeal. Accordingly, the jurisdiction of this Court is limited to consideration of matters of law. As was held in the case of Stanley N. Muriithi & Another v Bernard Munene Ithiga [2016] eKLR , on a second appeal, the Court confines itself to matters of law only, unless it is shown that the court below considered matters it should not have considered, or failed to consider matters it should have considered, or looking at the entire decision, it is perverse. See also Kenya Breweries Limited v Godfrey Odoyo [2010] eKLR in which it was held that: “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 matters they should have considered or looking at the entire decision, it is perverse.”
17. The Appellant states that the Learned Magistrate erred in the rewriting the terms of the agreement/warranty between the parties. Having rewritten the terms then using the outcome of the rewriting of the said terms to unjustly denude the Respondent’s contractual obligations to ensure the misuse of device was not part of the warranty.
18. In advancing this argument in its written submissions, the Appellant stated as follows;
“The Trial Court erred in Law and fact in rewriting he terms of the agreement/warranty to include matters that were not covered under warranty to be covered under the same.”
19. The warranty card that was issued to the Respondent was not a blanket warranty to cover all and everything. The said warranty was clear that the same would not cover misuse as was the case in the present case.
20. The warranty states as follows
“ Ottobock Kenya Limited provides a warranty on the articles listed below against all fabrication defects in components
A The following structural components/articles are covered under a warranty for a period of 2 years from the date of invoice.
1. Mechanical/Electrical hand, elbow joints, adaptors, wrist units
2. ……
3. …..
4. ……
B The following components/articles are NOT covered under warranty and need periodic replacement.
1. Liner and gloves
2. Foam covers
3. Hosiery Material including sock, stockings, straps
4. Technogels, crutches and other off-the-shelf items
5. Custom Made Silicone Products
6. Sockets requiring modifications due to morphological/physical changes in the user’s body
7. Breakages due to accidents or misuse or lack of maintenance.”
21. From the foregoing the Learned Adjudicator erred in holding that the misuse of the devise was covered under warranty. In essence the Court rewrote the agreement/warranty contrary to the legal principle that Courts do not rewrite agreements between parties. The Court of Appeal in National Bank of Kenya Ltd vs Pipeplastic Samkolit (K) Ltd & another (Tunoi, Shah & Keiwua JJA) held;
“a Court of Law cannot re write a contract between the parties. The parties are bound by the terms of the contract unless coercion, fraud or undue influence are pleased and proved.”
22. The Court understands the Appellant to submit that the Court ought to have rejected the claim based on the warranty for the prosthesis. The warranty was for a period of two (2) years. That the warranty did not cover misuse of the prosthesis. Hence as there was misuse of the prosthesis by the Respondent, the Learned Adjudicator ought to have rejected this claim.
23. The Court notes that the Respondent did not admit to the misuse of the prosthesis. The allegation of misuse was made by the Appellant. It was a factual issue. The Learned Adjudicator was not persuaded that the prosthesis had been misused. The Learned Adjudicator therefore upheld the claim based on the warranty.
24. The Appellant is seeking this Court on an Appeal to re-examine the evidence that was presented before the Learned Adjudicator. To thereafter reach a finding that the Trias foot had been misused. That it was not covered with the foot shell during its use. That failure to cover the Trias with a foot shell (which had been provided) led to breakages due to misuse and hence voided the warranty. That for that reason the claim based on the warranty ought to fail.
25. Once again, this argument appealing as it may seem invites the Court to delve into the realm of facts. The Court is precluded from doing so. While sitting on an Appeal from the Small Claims Court. It has not been demonstrated that the finding was so perverse as to warrant this Court to interfere with the decision of the Learned Adjudicator. Had the Respondent owned up to the misuse of the prosthesis, then it could very well be argued that the conclusion of the Learned Adjudicator flew against the established facts.
b) What reliefs lie from this Appeal.
26. Having failed to prove that the Appeal is merited, the only relief available is to dismiss this Appeal.
27. As to costs, the same are discretionary. The costs follow the event. However, in this case the Respondent failed to attend Court for the highlighting of submissions. No reason or explanation was given. In the circumstances the Court directs that let each party bear it’s or her own costs.
Determination
28. The Appeal is dismissed in its entirely
29. Each party will bear their own costs
30. It is so ordered
Dated, Signed and Delivered at Milimani this 31st day of July, 2025.
Njoroge Benjamin K.
JUDGE
In the presence of
Mr. Opwaka holding brief for Mr. Masafu for the Appellant
Mr. Okech for the Respondent
Mr. Amos -Court Assistant.
1. This is a judgement arising out of an appeal against the Judgement of Honourable Wamae E. M. Muindi (RM) learned Adjudicator, delivered on 25/4/2024. This is in respect of a small claims action in SCCC No E5796 of 2023 Celestine Madowo vs Ottobock Kenya Limited .
2. The Learned Adjudicator entered judgment in favour of the Respondent against the Appellant as follows;
a) The Appellant found liable for supplying a defective foot. The Respondent was therefore entitled to the purchase price paid to the Respondent.
b) Judgement entered for the Respondent against the Appellant for Kshs.327,174.39 together with interest at Court rates from the date of filing suit until payment in full.
c) The Appellant to pay to the Respondent the costs of the suit.
Background Facts
3. The Appellant was the Respondent before the Small Claims Court, while the Respondent herein was the Claimant.
4. The Respondent has entered into a contract with the Appellant on 9/2/2023 for the fitting of a transtibial fitting with trias and limb. This being a prosthetic foot, the Respondent was thereafter fitted with the limb. It however broke down before the expiry of the warranty period of 2 years.
5. The Respondent sued before the Small Claims Court for compensation in the sum of Ks. 1,000,000/=. This was in respect to the prosthetic limb which she maintained was defective. The claim was in respect to compensation by way of damages arising out the breach of contract.
6. The Appellant denied the claim. It blamed the Respondent for using the prosthetic limb without the foot cover provided. That she did not take proper care of the trias as well as the foot cover. It prayed that the suit be dismissed.
7. The Learned Adjudicator declined to award any general damages but awarded the Respondent a sum of Kshs.327,174.39 being the refund of the cost of the prosthesis.
8. It is the Judgement of the Learned adjudicator in favour of the Respondent against the Appellant that has triggered this appeal.
9. The Appeal was canvassed by way of written submissions. The Court has seen and read the Appellants’ written submissions dated 30/9/2024. The Respondent filed submissions dated 13/01/2025 which the Court has also seen and read.
Issues of determination
10. The Court having perused the Memorandum of appeal the Record of Appeal and the submissions filed, frames two issues for determination as follows?
a) Whether the Appeal is merited.
b) What reliefs lie from this Appeal.
Analysis
11. This is an Appeal from the Small Claims Court. It is the first and the last appeal. An appeal to this Court is pursuant to Section 38 of the Small Claims Court Act. It states as follows;
(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.
12. An appeal to this Court is therefore narrowly circumscribed. It lies only on points of law. This Court is not bound to review the evidence presented before the Small Claims Court, and arrive at its own conclusion. See Mwaura v Wambua (Commercial Appeal E003 of 2024) [2024] KEHC 13897 (KLR) (11 November 2024) (Judgment) .
“This being an appeal from the Small Claims Court, the duty of
the court is circumscribed under Section 38 of the Small
Claims Court Act which provides as doth:
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.
An appeal from any decision or order referred to in subsection (1) shall be final.
The duty of the court is to defer to the findings of fact of the adjudicator and analyse the matter for issues of law. The issues of law are either due to the subject matter or the finding of law by the court.”
13. The Court will therefore decline the invitation by the Appellant to apply the principles set out in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A 123 .
14. The Court proceeds to analyse the two issues framed as follows;
a) Whether the Appeal is Merited.
15. There are seven (7) Grounds of Appeal raised. A perusal of the grounds reveal that they challenge the Appeal on factual grounds. They challenge the learned Adjudicator’s appreciation of the facts as presented before the Small Claims Court.
16. When it comes to matter of facts the Court will not interfere unless the Learned Adjudicator’s appreciation of the facts of the case, on the lack thereof results in an absurd or perverse decision. See the case of Mwita v Woodventure (K) Limited & another (Civil Appeal 58 of 2017) [2022] KECA 628 (KLR) (8 July 2022) (Judgment) .
“This is a second appeal. Accordingly, the jurisdiction of this Court is limited to consideration of matters of law. As was held in the case of Stanley N. Muriithi & Another v Bernard Munene Ithiga [2016] eKLR , on a second appeal, the Court confines itself to matters of law only, unless it is shown that the court below considered matters it should not have considered, or failed to consider matters it should have considered, or looking at the entire decision, it is perverse. See also Kenya Breweries Limited v Godfrey Odoyo [2010] eKLR in which it was held that: “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 matters they should have considered or looking at the entire decision, it is perverse.”
17. The Appellant states that the Learned Magistrate erred in the rewriting the terms of the agreement/warranty between the parties. Having rewritten the terms then using the outcome of the rewriting of the said terms to unjustly denude the Respondent’s contractual obligations to ensure the misuse of device was not part of the warranty.
18. In advancing this argument in its written submissions, the Appellant stated as follows;
“The Trial Court erred in Law and fact in rewriting he terms of the agreement/warranty to include matters that were not covered under warranty to be covered under the same.”
19. The warranty card that was issued to the Respondent was not a blanket warranty to cover all and everything. The said warranty was clear that the same would not cover misuse as was the case in the present case.
20. The warranty states as follows
“ Ottobock Kenya Limited provides a warranty on the articles listed below against all fabrication defects in components
A The following structural components/articles are covered under a warranty for a period of 2 years from the date of invoice.
1. Mechanical/Electrical hand, elbow joints, adaptors, wrist units
2. ……
3. …..
4. ……
B The following components/articles are NOT covered under warranty and need periodic replacement.
1. Liner and gloves
2. Foam covers
3. Hosiery Material including sock, stockings, straps
4. Technogels, crutches and other off-the-shelf items
5. Custom Made Silicone Products
6. Sockets requiring modifications due to morphological/physical changes in the user’s body
7. Breakages due to accidents or misuse or lack of maintenance.”
21. From the foregoing the Learned Adjudicator erred in holding that the misuse of the devise was covered under warranty. In essence the Court rewrote the agreement/warranty contrary to the legal principle that Courts do not rewrite agreements between parties. The Court of Appeal in National Bank of Kenya Ltd vs Pipeplastic Samkolit (K) Ltd & another (Tunoi, Shah & Keiwua JJA) held;
“a Court of Law cannot re write a contract between the parties. The parties are bound by the terms of the contract unless coercion, fraud or undue influence are pleased and proved.”
22. The Court understands the Appellant to submit that the Court ought to have rejected the claim based on the warranty for the prosthesis. The warranty was for a period of two (2) years. That the warranty did not cover misuse of the prosthesis. Hence as there was misuse of the prosthesis by the Respondent, the Learned Adjudicator ought to have rejected this claim.
23. The Court notes that the Respondent did not admit to the misuse of the prosthesis. The allegation of misuse was made by the Appellant. It was a factual issue. The Learned Adjudicator was not persuaded that the prosthesis had been misused. The Learned Adjudicator therefore upheld the claim based on the warranty.
24. The Appellant is seeking this Court on an Appeal to re-examine the evidence that was presented before the Learned Adjudicator. To thereafter reach a finding that the Trias foot had been misused. That it was not covered with the foot shell during its use. That failure to cover the Trias with a foot shell (which had been provided) led to breakages due to misuse and hence voided the warranty. That for that reason the claim based on the warranty ought to fail.
25. Once again, this argument appealing as it may seem invites the Court to delve into the realm of facts. The Court is precluded from doing so. While sitting on an Appeal from the Small Claims Court. It has not been demonstrated that the finding was so perverse as to warrant this Court to interfere with the decision of the Learned Adjudicator. Had the Respondent owned up to the misuse of the prosthesis, then it could very well be argued that the conclusion of the Learned Adjudicator flew against the established facts.
b) What reliefs lie from this Appeal.
26. Having failed to prove that the Appeal is merited, the only relief available is to dismiss this Appeal.
27. As to costs, the same are discretionary. The costs follow the event. However, in this case the Respondent failed to attend Court for the highlighting of submissions. No reason or explanation was given. In the circumstances the Court directs that let each party bear it’s or her own costs.
Determination
28. The Appeal is dismissed in its entirely
29. Each party will bear their own costs
30. It is so ordered
Dated, Signed and Delivered at Milimani this 31st day of July, 2025.
Njoroge Benjamin K.
JUDGE
In the presence of
Mr. Opwaka holding brief for Mr. Masafu for the Appellant
Mr. Okech for the Respondent
Mr. Amos -Court Assistant.