A. THE APPEAL.
1. This appeal emanates from the judgement and decree of Hon. W.K. Onkunya, Principal Magistrate, delivered on 29th June, 2023 in Kisumu CMCC No. 154 of 2020.
2. The Appellant has presented 5 grounds of appeal, vide the memorandum of appeal dated 28th July, 2023, which I reproduce as follows:
a. The learned Magistrate erred in law and fact by finding that the Respondent was entitled to payment of Ksh.100,000/- without any proof.
b. The learned Magistrate erred in law and fact by holding that there was a breach of contract and awarded Ksh.100,000/- to the Respondent without any particulars having been pleaded and strictly proved as required of special damages.
c. The learned Magistrate erred in law and fact by awarding interest at court rates from the time of filing the suit until payment in full on an amount that was not pleaded and strictly proved as required of special damages.
d. The learned Magistrate’s Judgment was not supported by any evidence and the same was against the Defendant's weight of evidence.
e. The learned Magistrate erred in fact and in law in not appreciating sufficiently or at all the appellant had raised matters of a fundamental nature.
3. The Appellant proposes that the appeal be allowed, the judgement and the resultant decree of the learned trial Magistrate be set aside in its entirety and that the Appellant be awarded the costs of this appeal and in the matter before the trial court.
B. THE DUTY OF THIS COURT.
4. This being the first appellate court, I am required under Section 78 of the Civil Procedure Act and as was espoused in the case of Selle v Associated Motor Boat Co. Ltd [1969] E.A. 123 to reassess, reanalyze and reevaluate the evidence adduced in the trial court and draw my conclusions while bearing in mind that I did not see or hear the witnesses when they testified.
5. In Selle, Sir Clement De Lestang observed that:
“This Court must consider the evidence, evaluate it itself and draw its own conclusions, though in doing so it should always bear in mind that it neither heard witnesses and should make due allowance in this respect.
However, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he had clearly failed on some point to take account of particular circumstances or probabilities, materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”
6. The duty of the first appellate court was also discussed by the Court of Appeal for East Africa in the case of Peters v Sunday Post Limited [1958] EA 424 in which it was held that the appropriate standard of review established in cases of appeal can be stated in three complementary principles:
“i. First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;
ii. In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; and
iii. It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.”
C. BACKGROUND OF THE DISPUTE.
7. A brief history of the matter before the lower court is that the Respondent (the Plaintiff before the lower court) filed the suit against the Appellant (the Defendant before the lower court) vide a plaint dated 3rd December, 2020 seeking, inter alia, a declaration that the Appellant’s failure and/or refusal to connect him to internet services amounted to a breach of contract and an infringement of his rights as a consumer, general damages, damages for loss allegedly incurred as a result of the failure to provide internet services and costs of the suit.
8. In the plaint, the Respondent apleaded that the Appellant, through its ZUKU platform, provided internet and pay television services within the Republic of Kenya. He pleaded that on or about 7th September, 2020, he paid a sum of Ksh.5,208/- through ZUKU Account No. 559922 for the installation and provision of internet services at his residence in Kisumu. He further pleaded that the Appellant assured him that the connection would be effected within twenty-four hours of payment.
9. The Respondent further averred that he required the internet connection to facilitate online classes for his school-going children. He contended that despite payment of the requisite charges, the Appellant failed, neglected and/or refused to connect him to the internet services as promised. He also averred that his efforts to follow up the matter were met with unhelpful responses, stonewalling and silence from the Appellant’s staff.
10. It was the Respondent’s case that due to the Appellant’s failure to provide the internet services, he was compelled to seek alternative internet connectivity by hiring an apartment at a daily cost which accumulated to Ksh.100,000/-. He further claimed that the Appellant’s conduct subjected him and his family to humiliation, trauma, distress, embarrassment, anguish, inconvenience, frustration and anxiety arising from the lack of internet connectivity and the necessity of making stressful trips to the hired apartment for purposes of accessing online classes.
11. The Appellant entered appearance and filed an amended statement of defence dated 15th February 2021. In its defence, the Appellant admitted that it provided internet and television services and further admitted that it entered into a contract with the Respondent for the provision of internet services at the Respondent’s residence in Kisumu. However, it denied having assured the Respondent that the connection would be effected within twenty-four hours, and maintained that if any timelines had been communicated, the same were merely estimates and not binding contractual terms.
12. The Appellant pleaded that the contract between the parties was governed by terms and conditions which provided, inter alia, that time was not of the essence in relation to installation, that the Appellant would not be liable for delays in delivery or installation of equipment and that it would not be liable for losses arising from unavailability of its network or circumstances beyond its control.
13. The Appellant further pleaded that installation of the services depended on the procurement of Optical Network Units from outside the country and that delays occasioned by the COVID-19 pandemic affected the importation of the said equipment.
14. The Appellant further averred that its agents and/or servants visited the Respondent’s premises on several occasions with the intention of completing the installation but were allegedly denied access and chased away by the Respondent. According to the Appellant, the Respondent’s conduct frustrated the contract and rendered performance impossible. The Appellant pleaded that it consequently refunded to the Respondent the sum of Ksh.5,208/- on or about 13th October, 2020.
15. The Appellant denied liability for the losses and damages claimed by the Respondent and contended that the Respondent was the author of his own misfortune. It further averred that the alleged expenditure incurred in hiring alternative premises for online classes was unnecessary, unreasonable and not attributable to the Appellant. The Appellant therefore prayed for dismissal of the suit with costs.
D. THE EVIDENCE BEFORE THE TRIAL COURT.
16. The Respondent (the Plaintiff before the trial court) testified and adopted the contents of his undated witness statement. The Respondent stated that on 7th September, 2020, he was approached by the Appellant’s agents and persuaded to subscribe to the Appellant’s internet services for his residence. He testified that he was experiencing internet connectivity challenges, particularly in relation to facilitating online classes for his school-going children. He further stated that the Appellant’s agents promised that the internet connection would be installed within twenty-four hours upon payment. Consequently, he paid a sum of Ksh.5,208/- after being influenced by the Appellant’s advertisements and representations made by one of its agents identified as Vincent.
17. The Respondent testified that the primary purpose of obtaining the internet connection was to enable his children to conveniently attend online classes. He further stated that he had also been enticed by promises of a television decoder, telephone services and customer support from the Appellant. However, according to the Respondent, the promised services were never provided despite repeated assurances from the Appellant’s staff.
18. The Respondent further testified that on 14th September, 2020, he wrote an email to the Appellant complaining that although his money had been received, he had not been connected to the internet services. He narrated that he continued receiving explanations and assurances from various members of the Appellant’s staff, including representations that there had been a faulty decoder which would be replaced, but no installation was ultimately undertaken. He also complained that some of the Appellant’s staff were rude and unresponsive and that his calls and messages were ignored.
19. The Respondent testified that on 8th September, 2020, he sent a text message demanding either immediate connection within the promised timeline or a refund of the Ksh.5,208/- paid to the Appellant. He stated that despite his complaints and demands, the Appellant failed to provide the promised services. As a consequence, he testified that he was compelled to incur additional expenses by hiring alternative accommodation so as to secure internet connectivity for his children’s online classes.
20. The Respondent further testified that after waiting for approximately one month without receiving the services, technicians from the Appellant eventually went to his residence on 7th October, 2020 with the intention of installing a router. By that time, however, he no longer wished to continue with the arrangement and informed the technicians and other representatives of the Appellant that he was no longer interested in the services and intended to pursue legal action. He stated that he directed the technicians to leave his premises immediately.
21. The Respondent also testified that despite his communication that he no longer required the services and his request that the Appellant remove its equipment from his premises, the Appellant’s technicians later returned to his residence on 31st October, 2020. He reiterated that he informed the Appellant’s representatives that he was no longer interested in the services and intended to seek relief before the court.
22. The Respondent maintained that due to the Appellant’s failure to provide the promised internet services in a timely manner, he incurred expenses amounting to Ksh.100,000/- in leasing alternative accommodation to facilitate his children’s online learning. He therefore sought compensation and other reliefs from the trial court.
23. The Respondent produced the following documents in support of his case:
- Copy of the Appellant’s fliers as P-Exhibit 1.
- Copy of evidence of payment of the signing fee in September, 2020 as P-Exhibit 2.
- A Bundle of e-mails showing correspondence between the Respondent and Appellant as P-Exhibit 3 (a) to (g).
- Copy of invoice for the rental house as P-Exhibit 4.
- Copy of evidence of payment for the rented house as P-Exhibit 5.
- Copy of Demand Letter dated 22nd September, 2020 as P-Exhibit 6.
- Report Card from Greensteds International School as Р-Exhibit 7.
24. Upon being cross examined, the Respondent told the trial court that he signed the subscription agreement dated 7th September, 2020. He, however, stated that the terms and conditions were not given to him at the time of signing the agreement. He maintained that he therefore did not have sight or access to the contractual terms allegedly relied upon by the Appellant.
25. The Respondent further stated that he encountered the Appellant’s agent approximately 1 kilometre from his home during the course of the transaction. He also confirmed that the Appellant refunded him the sum of Ksh.5,208/- through M-Pesa approximately six weeks after payment had been made.
26. During re-examination, the Respondent clarified that although he received a refund of Ksh.5,208/-, the payment was credited from a business number which, in his view, was not clearly identifiable as belonging to the Appellant.
27. The Appellant’s first witness, DW1, Christopher Shayo, testified and adopted the contents of his undated witness statement. He introduced himself as the Work Order Analyst Team Leader of the Appellant company and stated that his duties included monitoring the creation of customer accounts and raising work orders from various sales channels to ensure that orders were received from valid cable addresses.
28. DW1 testified on the Appellant’s process of onboarding new customers. He stated that the process involved interaction between the customer and the Appellant’s sales agents, execution of a subscriber application form containing the Appellant’s terms and conditions, agreement on the installation timeline, payment by the customer and the subsequent booking of a work order. He further testified that once a work order was raised, the Appellant’s contractors would contact the customer to schedule an appointment for installation before dispatching a technical team to the customer’s premises.
29. DW1 further testified that at the time the Respondent subscribed for the Appellant’s services, the Appellant was experiencing a shortage of Optical Network Units (ONUs), which were necessary for full installation of the internet services. He stated that all customers, including the Respondent, were informed about the stock shortage and were advised that the Appellant’s contractors would initially undertake pre-wiring works pending procurement of the required equipment.
30. According to DW1, the shortage of ONUs had been occasioned by logistical challenges arising from the COVID-19 pandemic, making it impossible for the Appellant to commit to definite timelines for procurement and installation of the equipment. He testified that customers were informed of the delays and given the option either to proceed with payment and wait for installation or to withhold payment until the necessary equipment became available.
31. DW1 testified that once a customer elected to proceed with the arrangement, the Appellant’s contractors would undertake pre-installation works while informing the customer that complete installation could not immediately be finalized due to the stock shortages. He stated that after the pre-installation works, the customer would liaise with the sales team regarding the availability of the required equipment.
32. DW1 further testified that the Respondent made payment on 7th September, 2020 and that on 8th September, 2020, the Appellant’s team visited the Respondent’s premises and carried out pre-wiring works. He stated that the Respondent was informed that complete installation could not be undertaken immediately because of the shortage of ONUs and that the Respondent accepted the situation and agreed to wait.
33. It was DW1’s testimony that the Respondent thereafter continued communicating with the Appellant’s sales agents and even visited the Appellant’s Kisumu office, where he was repeatedly advised about the delays occasioned by the equipment shortage. He stated that all communications between the Respondent, the Appellant’s sales team and technicians were verbal in nature and that the Respondent was informed on several occasions about the anticipated delay and the reasons for it.
34. DW1 further testified that when the Respondent later complained and requested a refund, the Appellant processed and refunded the sum paid by the Respondent within the shortest time possible.
35. The witness produced the following documents in support of the Appellant’s case:
- 1. Subscription form with terms and conditions as D-Exhibit.
- Refund Note as D-Exhibit 2.
36. On cross examination, DW1 told the trial court that he was not the sales agent in the transaction and confirmed that the sales agent was one Mr. Vincent. He further stated that he did not personally interact with the Respondent, and that the sale of services took place in the field rather than at the Appellant’s office. He explained that the sales agent was responsible for interacting with customers and relaying information to the Appellant for purposes of processing work orders.
37. DW1 stated that Mr. Vincent provided the Appellant with information arising from field interactions and that he received an order based on that information. He confirmed that it was not correct that installation was to be completed within 24 hours of subscription, and stated that although the customer had made payment, installation could not be done within that period. He further distinguished between partial and complete installation, indicating that pre-installation works could be undertaken even where full activation was not immediately possible.
38. DW1 testified that the Respondent was informed through the sales agent that full installation could not be completed due to lack of equipment. However, he stated that he could not personally verify whether the Respondent was indeed informed of this position and acknowledged that there was a possibility that the Respondent may not have been informed. He also confirmed that at the time of subscription, the Respondent was not informed of the shortage of Optical Network Units as per the required procedure.
39. DW1 further stated that once a work order was generated, customers were to be informed of any equipment shortages and confirmed that such information was not communicated to the Respondent at the time of signing the subscription form. He also confirmed that no service was provided on 8th September, 2020, although the Appellant’s team had been sent to the Respondent’s premises and carried out wiring activities.
40. DW1 acknowledged that most customer engagements occurred in the field and were recorded in work orders, although he noted that the relevant work order in this case was not produced in court. He confirmed that on 8th September, 2020 the Appellant’s technical team visited the Respondent’s premises and undertook wiring activities, but stated that no internet service was activated due to the absence of routers.
41. DW1 further confirmed that the delay in installation was caused by stock-outs on the Appellant’s side and attributed the same to disruptions occasioned by the COVID-19 pandemic. He also stated that the Appellant could not blame the Respondent for the delay in installation.
42. During re-examination, DW1 stated that the Respondent was first informed of the delay on 7th September, 2020 and again on 8th September, 2020 when the technical team visited the site. He further stated that the Respondent visited the Appellant’s Kisumu shop at some point and was informed of the delay, although he could not recall the exact date.
43. DW1 added that the Respondent also contacted customer service and was informed that the required stock was not available. He stated that the Respondent was finally informed again in October, 2020 when the equipment became available, and that throughout this period the Respondent did not object but agreed to wait for availability of stock.
44. DW1 further testified that at the time of signing the subscription, customers were required to read and accept the contractual conditions, including the provision that time was not of the essence in the installation of services. He attributed the delay in supply of equipment to global supply chain disruptions during the COVID-19 pandemic, stating that imports from China had been restricted and that only medical supplies were prioritized at the time.
45. The Appellant’s second witness, DW2 Samson Musyoki, testified and adopted the contents of his witness statement dated 14th February, 2023. He stated that he was an agent of the Appellant and was familiar with the facts giving rise to the suit and therefore competent to testify.
46. DW2 testified that on or about 7th September, 2020, the Respondent engaged one of the Appellant’s field agents with the intention of subscribing to the Appellant’s Zuku Fibre platform. He stated that the Respondent was advised to sign a subscription form, agree on installation arrangements, and make payment of Ksh.5,208/- through Zuku Account No. 559922, which the Respondent duly did.
47. DW2 further testified that the Respondent signed the subscription form which contained the terms and conditions of the contract between the parties. He stated that a work order was subsequently generated, and arrangements were made for pre-wiring of the Respondent’s premises.
48. It was DW2’s testimony that on 8th September, 2020, he together with a colleague visited the Respondent’s residence in Milimani, Kisumu, where they were received by the Respondent’s son. He stated that they proceeded to undertake pre-wiring works as agreed, but were unable to activate the internet service due to lack of routers.
49. DW2 testified that the Appellant did not have routers in stock at the time, and that the Respondent was informed that routers were out of stock countrywide due to procurement and importation delays occasioned by the COVID-19 pandemic. He stated that the Respondent was informed that activation would be effected once the routers were imported and made available, and that the Respondent agreed to wait.
50. DW2 further testified that in early October, 2020, after the routers had been delivered to the country, the Appellant’s team visited the Respondent’s premises to complete installation and activate the service. However, he stated that the Respondent denied them access, indicated that he no longer required the services and demanded a refund, after which he chased them away from the premises.
51. DW2 testified that the incident was reported to the Appellant’s supervisors, who thereafter processed a refund of the Ksh.5,208/- to the Respondent via M-Pesa to the same number used for payment.
52. DW2 dismissed the Respondent’s suit as one that disclosed no reasonable cause of action, was scandalous, vexatious and frivolous and was intended to tarnish the Appellant’s reputation and therefore prayed for its dismissal with costs and interest.
53. Upon being cross examined, DW2 told the trial court that he never met the Respondent prior to the installation visit and confirmed that he only went to the Respondent’s premises on 8th September, 2020 for purposes of installing internet services. He stated that upon arrival at the site, they did not have routers as there was a shortage of routers between August and September, 2020, and that internet activation could not be completed without routers being available.
54. DW2 further testified that although he was not involved in the sales process, he understood from the work order that there had been a shortage of routers and that sales agents were informed of this shortage and expected to communicate the same to customers. He, however, stated that he could not confirm whether the sales agent, Mr. Vincent, actually informed the Respondent of the shortage of routers.
55. DW2 confirmed that routers are essential for the provision of internet services and that the shortage affected the Appellant’s ability to complete installations. He also stated that the routers were eventually received in October, 2020 at which point installation could proceed.
56. During re-examination, DW2 stated that he attended the Respondent’s premises on 8th September, 2020 pursuant to a work order, which contained communication between the customer and the sales agent. He testified that upon arrival, they were received by the Respondent’s son, who called the Respondent, and that the Respondent gave them permission to proceed with installation works.
57. DW2 further stated that after carrying out pre-installation works, they informed the Respondent that routers were not yet available and relayed this information to the Appellant’s office. He testified that the Respondent, having been informed previously by the sales agent about the shortage, agreed to wait for the routers to be supplied before full installation could be completed.
E. THE TRIAL COURT’S FINDINGS.
58. The trial court rendered its judgement on 29th June, 2023 and found that there was no dispute that a valid contract existed between the parties for the provision of internet services at the Respondent’s residence upon payment of Ksh.5,208/-.
59. The trial court set down the following issues for determination:
1. Whether there was a valid contract between the Respondent and Appellant.
2. Whether the Appellant breached the contract with the Respondent and infringed his rights as a consumer of its services.
3. Whether the Respondent was entitled to the reliefs sought.
60. On the issue of the existence of a valid contract, the trial court found that there was no dispute between the parties as to its existence, noting that the Appellant expressly admitted that a contractual relationship existed between the parties for the provision of internet services.
61. On the issue of breach, the trial court found that the Appellant’s agents had made representations that internet services would be connected within approximately 24 hours of payment, notwithstanding that the Appellant did not have the necessary routers in stock at the time.
62. The court found that there was no sufficient evidence that the Respondent had been informed of the stock shortage or that he had consented to proceed on that basis with full knowledge of the limitation.
63. The trial court further held that the Appellant’s witnesses confirmed the existence of a shortage of routers and acknowledged that the Sales Agent may not have informed the Respondent of this position, and that it was possible the Respondent had not been properly advised. The court also noted that the Sales Agent who allegedly made the representations was not called as a witness.
64. The trial court held that the Appellant’s conduct amounted to a false or misleading representation, in that the Respondent was led to believe that installation would be completed within a short period despite the Appellant’s inability to do so due to lack of equipment. The court found that the Respondent therefore did not receive adequate information necessary to make an informed decision.
65. The trial court relied on Article 46 of the Constitution on consumer rights and provisions of the Consumer Protection Act, finding that the Respondent was entitled to information necessary to benefit from the services and protection against misleading representations. The court held that the Appellant had infringed the Respondent’s consumer rights by making misleading representations regarding the provision of services.
66. On reliefs, the trial court found that although the Respondent had been refunded the subscription fee of Ksh.5,208/-, he was entitled to compensation for the loss allegedly incurred in obtaining alternative internet access. The court therefore awarded the Respondent Ksh.100,000/- as compensation for alternative accommodation costs, together with a declaration that the Appellant’s conduct constituted breach of contract and infringement of consumer rights. The court also awarded costs and interest of the suit to the Respondent.
F. THE APPELLANT’S SUBMISSIONS ON APPEAL.
67. The Appellant submits that the trial court’s judgement was erroneous both in law and fact, as the learned trial Magistrate misdirected herself in evaluating the pleadings, evidence, and submissions, thereby arriving at a decision unsupported by the record and contrary to established principles governing contractual liability and damages.
68. The Appellant reiterates that the dispute arose from a contractual relationship entered into on or about 7th September, 2020 for provision of internet services. It is submitted that the Respondent executed a subscription form which incorporated the Appellant’s standard terms and conditions, which he acknowledged having read and agreed to.
69. The Appellant relies on clause 4.1.4 of the said terms, which provided that time was not of the essence in the supply and installation of services and that the Appellant would not be liable for costs or expenses incurred due to delay.
70. The Appellant submits that at the time of subscription there was a nationwide shortage of routers/Optical Network Units (ONUs) occasioned by COVID-19 related disruptions in global supply chains, a fact which was communicated to customers and which justified the delay in full installation.
71. It is further submitted that on 8th September, 2020, the Appellant’s technicians visited the Respondent’s premises and undertook pre-wiring works, informing him of the equipment shortage and that the Respondent agreed to await full installation once equipment became available.
72. The Appellant further submits that once the routers were delivered in October, 2020, its technicians returned to the Respondent’s premises to complete installation but were denied access by the Respondent, who declared that he no longer required the services and demanded a refund. The Appellant states that a full refund of Ksh.5,208/- was subsequently processed and paid to the Respondent, which fact was admitted by the Respondent in cross-examination.
73. On liability, the Appellant contends that the learned trial Magistrate erred in finding breach of contract and infringement of c
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1. This appeal emanates from the judgement and decree of Hon. W.K. Onkunya, Principal Magistrate, delivered on 29th June, 2023 in Kisumu CMCC No. 154 of 2020.
2. The Appellant has presented 5 grounds of appeal, vide the memorandum of appeal dated 28th July, 2023, which I reproduce as follows:
a. The learned Magistrate erred in law and fact by finding that the Respondent was entitled to payment of Ksh.100,000/- without any proof.
b. The learned Magistrate erred in law and fact by holding that there was a breach of contract and awarded Ksh.100,000/- to the Respondent without any particulars having been pleaded and strictly proved as required of special damages.
c. The learned Magistrate erred in law and fact by awarding interest at court rates from the time of filing the suit until payment in full on an amount that was not pleaded and strictly proved as required of special damages.
d. The learned Magistrate’s Judgment was not supported by any evidence and the same was against the Defendant's weight of evidence.
e. The learned Magistrate erred in fact and in law in not appreciating sufficiently or at all the appellant had raised matters of a fundamental nature.
3. The Appellant proposes that the appeal be allowed, the judgement and the resultant decree of the learned trial Magistrate be set aside in its entirety and that the Appellant be awarded the costs of this appeal and in the matter before the trial court.
B. THE DUTY OF THIS COURT.
4. This being the first appellate court, I am required under Section 78 of the Civil Procedure Act and as was espoused in the case of Selle v Associated Motor Boat Co. Ltd [1969] E.A. 123 to reassess, reanalyze and reevaluate the evidence adduced in the trial court and draw my conclusions while bearing in mind that I did not see or hear the witnesses when they testified.
5. In Selle, Sir Clement De Lestang observed that:
“This Court must consider the evidence, evaluate it itself and draw its own conclusions, though in doing so it should always bear in mind that it neither heard witnesses and should make due allowance in this respect.
However, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he had clearly failed on some point to take account of particular circumstances or probabilities, materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”
6. The duty of the first appellate court was also discussed by the Court of Appeal for East Africa in the case of Peters v Sunday Post Limited [1958] EA 424 in which it was held that the appropriate standard of review established in cases of appeal can be stated in three complementary principles:
“i. First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;
ii. In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; and
iii. It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.”
C. BACKGROUND OF THE DISPUTE.
7. A brief history of the matter before the lower court is that the Respondent (the Plaintiff before the lower court) filed the suit against the Appellant (the Defendant before the lower court) vide a plaint dated 3rd December, 2020 seeking, inter alia, a declaration that the Appellant’s failure and/or refusal to connect him to internet services amounted to a breach of contract and an infringement of his rights as a consumer, general damages, damages for loss allegedly incurred as a result of the failure to provide internet services and costs of the suit.
8. In the plaint, the Respondent apleaded that the Appellant, through its ZUKU platform, provided internet and pay television services within the Republic of Kenya. He pleaded that on or about 7th September, 2020, he paid a sum of Ksh.5,208/- through ZUKU Account No. 559922 for the installation and provision of internet services at his residence in Kisumu. He further pleaded that the Appellant assured him that the connection would be effected within twenty-four hours of payment.
9. The Respondent further averred that he required the internet connection to facilitate online classes for his school-going children. He contended that despite payment of the requisite charges, the Appellant failed, neglected and/or refused to connect him to the internet services as promised. He also averred that his efforts to follow up the matter were met with unhelpful responses, stonewalling and silence from the Appellant’s staff.
10. It was the Respondent’s case that due to the Appellant’s failure to provide the internet services, he was compelled to seek alternative internet connectivity by hiring an apartment at a daily cost which accumulated to Ksh.100,000/-. He further claimed that the Appellant’s conduct subjected him and his family to humiliation, trauma, distress, embarrassment, anguish, inconvenience, frustration and anxiety arising from the lack of internet connectivity and the necessity of making stressful trips to the hired apartment for purposes of accessing online classes.
11. The Appellant entered appearance and filed an amended statement of defence dated 15th February 2021. In its defence, the Appellant admitted that it provided internet and television services and further admitted that it entered into a contract with the Respondent for the provision of internet services at the Respondent’s residence in Kisumu. However, it denied having assured the Respondent that the connection would be effected within twenty-four hours, and maintained that if any timelines had been communicated, the same were merely estimates and not binding contractual terms.
12. The Appellant pleaded that the contract between the parties was governed by terms and conditions which provided, inter alia, that time was not of the essence in relation to installation, that the Appellant would not be liable for delays in delivery or installation of equipment and that it would not be liable for losses arising from unavailability of its network or circumstances beyond its control.
13. The Appellant further pleaded that installation of the services depended on the procurement of Optical Network Units from outside the country and that delays occasioned by the COVID-19 pandemic affected the importation of the said equipment.
14. The Appellant further averred that its agents and/or servants visited the Respondent’s premises on several occasions with the intention of completing the installation but were allegedly denied access and chased away by the Respondent. According to the Appellant, the Respondent’s conduct frustrated the contract and rendered performance impossible. The Appellant pleaded that it consequently refunded to the Respondent the sum of Ksh.5,208/- on or about 13th October, 2020.
15. The Appellant denied liability for the losses and damages claimed by the Respondent and contended that the Respondent was the author of his own misfortune. It further averred that the alleged expenditure incurred in hiring alternative premises for online classes was unnecessary, unreasonable and not attributable to the Appellant. The Appellant therefore prayed for dismissal of the suit with costs.
D. THE EVIDENCE BEFORE THE TRIAL COURT.
16. The Respondent (the Plaintiff before the trial court) testified and adopted the contents of his undated witness statement. The Respondent stated that on 7th September, 2020, he was approached by the Appellant’s agents and persuaded to subscribe to the Appellant’s internet services for his residence. He testified that he was experiencing internet connectivity challenges, particularly in relation to facilitating online classes for his school-going children. He further stated that the Appellant’s agents promised that the internet connection would be installed within twenty-four hours upon payment. Consequently, he paid a sum of Ksh.5,208/- after being influenced by the Appellant’s advertisements and representations made by one of its agents identified as Vincent.
17. The Respondent testified that the primary purpose of obtaining the internet connection was to enable his children to conveniently attend online classes. He further stated that he had also been enticed by promises of a television decoder, telephone services and customer support from the Appellant. However, according to the Respondent, the promised services were never provided despite repeated assurances from the Appellant’s staff.
18. The Respondent further testified that on 14th September, 2020, he wrote an email to the Appellant complaining that although his money had been received, he had not been connected to the internet services. He narrated that he continued receiving explanations and assurances from various members of the Appellant’s staff, including representations that there had been a faulty decoder which would be replaced, but no installation was ultimately undertaken. He also complained that some of the Appellant’s staff were rude and unresponsive and that his calls and messages were ignored.
19. The Respondent testified that on 8th September, 2020, he sent a text message demanding either immediate connection within the promised timeline or a refund of the Ksh.5,208/- paid to the Appellant. He stated that despite his complaints and demands, the Appellant failed to provide the promised services. As a consequence, he testified that he was compelled to incur additional expenses by hiring alternative accommodation so as to secure internet connectivity for his children’s online classes.
20. The Respondent further testified that after waiting for approximately one month without receiving the services, technicians from the Appellant eventually went to his residence on 7th October, 2020 with the intention of installing a router. By that time, however, he no longer wished to continue with the arrangement and informed the technicians and other representatives of the Appellant that he was no longer interested in the services and intended to pursue legal action. He stated that he directed the technicians to leave his premises immediately.
21. The Respondent also testified that despite his communication that he no longer required the services and his request that the Appellant remove its equipment from his premises, the Appellant’s technicians later returned to his residence on 31st October, 2020. He reiterated that he informed the Appellant’s representatives that he was no longer interested in the services and intended to seek relief before the court.
22. The Respondent maintained that due to the Appellant’s failure to provide the promised internet services in a timely manner, he incurred expenses amounting to Ksh.100,000/- in leasing alternative accommodation to facilitate his children’s online learning. He therefore sought compensation and other reliefs from the trial court.
23. The Respondent produced the following documents in support of his case:
- Copy of the Appellant’s fliers as P-Exhibit 1.
- Copy of evidence of payment of the signing fee in September, 2020 as P-Exhibit 2.
- A Bundle of e-mails showing correspondence between the Respondent and Appellant as P-Exhibit 3 (a) to (g).
- Copy of invoice for the rental house as P-Exhibit 4.
- Copy of evidence of payment for the rented house as P-Exhibit 5.
- Copy of Demand Letter dated 22nd September, 2020 as P-Exhibit 6.
- Report Card from Greensteds International School as Р-Exhibit 7.
24. Upon being cross examined, the Respondent told the trial court that he signed the subscription agreement dated 7th September, 2020. He, however, stated that the terms and conditions were not given to him at the time of signing the agreement. He maintained that he therefore did not have sight or access to the contractual terms allegedly relied upon by the Appellant.
25. The Respondent further stated that he encountered the Appellant’s agent approximately 1 kilometre from his home during the course of the transaction. He also confirmed that the Appellant refunded him the sum of Ksh.5,208/- through M-Pesa approximately six weeks after payment had been made.
26. During re-examination, the Respondent clarified that although he received a refund of Ksh.5,208/-, the payment was credited from a business number which, in his view, was not clearly identifiable as belonging to the Appellant.
27. The Appellant’s first witness, DW1, Christopher Shayo, testified and adopted the contents of his undated witness statement. He introduced himself as the Work Order Analyst Team Leader of the Appellant company and stated that his duties included monitoring the creation of customer accounts and raising work orders from various sales channels to ensure that orders were received from valid cable addresses.
28. DW1 testified on the Appellant’s process of onboarding new customers. He stated that the process involved interaction between the customer and the Appellant’s sales agents, execution of a subscriber application form containing the Appellant’s terms and conditions, agreement on the installation timeline, payment by the customer and the subsequent booking of a work order. He further testified that once a work order was raised, the Appellant’s contractors would contact the customer to schedule an appointment for installation before dispatching a technical team to the customer’s premises.
29. DW1 further testified that at the time the Respondent subscribed for the Appellant’s services, the Appellant was experiencing a shortage of Optical Network Units (ONUs), which were necessary for full installation of the internet services. He stated that all customers, including the Respondent, were informed about the stock shortage and were advised that the Appellant’s contractors would initially undertake pre-wiring works pending procurement of the required equipment.
30. According to DW1, the shortage of ONUs had been occasioned by logistical challenges arising from the COVID-19 pandemic, making it impossible for the Appellant to commit to definite timelines for procurement and installation of the equipment. He testified that customers were informed of the delays and given the option either to proceed with payment and wait for installation or to withhold payment until the necessary equipment became available.
31. DW1 testified that once a customer elected to proceed with the arrangement, the Appellant’s contractors would undertake pre-installation works while informing the customer that complete installation could not immediately be finalized due to the stock shortages. He stated that after the pre-installation works, the customer would liaise with the sales team regarding the availability of the required equipment.
32. DW1 further testified that the Respondent made payment on 7th September, 2020 and that on 8th September, 2020, the Appellant’s team visited the Respondent’s premises and carried out pre-wiring works. He stated that the Respondent was informed that complete installation could not be undertaken immediately because of the shortage of ONUs and that the Respondent accepted the situation and agreed to wait.
33. It was DW1’s testimony that the Respondent thereafter continued communicating with the Appellant’s sales agents and even visited the Appellant’s Kisumu office, where he was repeatedly advised about the delays occasioned by the equipment shortage. He stated that all communications between the Respondent, the Appellant’s sales team and technicians were verbal in nature and that the Respondent was informed on several occasions about the anticipated delay and the reasons for it.
34. DW1 further testified that when the Respondent later complained and requested a refund, the Appellant processed and refunded the sum paid by the Respondent within the shortest time possible.
35. The witness produced the following documents in support of the Appellant’s case:
- 1. Subscription form with terms and conditions as D-Exhibit.
- Refund Note as D-Exhibit 2.
36. On cross examination, DW1 told the trial court that he was not the sales agent in the transaction and confirmed that the sales agent was one Mr. Vincent. He further stated that he did not personally interact with the Respondent, and that the sale of services took place in the field rather than at the Appellant’s office. He explained that the sales agent was responsible for interacting with customers and relaying information to the Appellant for purposes of processing work orders.
37. DW1 stated that Mr. Vincent provided the Appellant with information arising from field interactions and that he received an order based on that information. He confirmed that it was not correct that installation was to be completed within 24 hours of subscription, and stated that although the customer had made payment, installation could not be done within that period. He further distinguished between partial and complete installation, indicating that pre-installation works could be undertaken even where full activation was not immediately possible.
38. DW1 testified that the Respondent was informed through the sales agent that full installation could not be completed due to lack of equipment. However, he stated that he could not personally verify whether the Respondent was indeed informed of this position and acknowledged that there was a possibility that the Respondent may not have been informed. He also confirmed that at the time of subscription, the Respondent was not informed of the shortage of Optical Network Units as per the required procedure.
39. DW1 further stated that once a work order was generated, customers were to be informed of any equipment shortages and confirmed that such information was not communicated to the Respondent at the time of signing the subscription form. He also confirmed that no service was provided on 8th September, 2020, although the Appellant’s team had been sent to the Respondent’s premises and carried out wiring activities.
40. DW1 acknowledged that most customer engagements occurred in the field and were recorded in work orders, although he noted that the relevant work order in this case was not produced in court. He confirmed that on 8th September, 2020 the Appellant’s technical team visited the Respondent’s premises and undertook wiring activities, but stated that no internet service was activated due to the absence of routers.
41. DW1 further confirmed that the delay in installation was caused by stock-outs on the Appellant’s side and attributed the same to disruptions occasioned by the COVID-19 pandemic. He also stated that the Appellant could not blame the Respondent for the delay in installation.
42. During re-examination, DW1 stated that the Respondent was first informed of the delay on 7th September, 2020 and again on 8th September, 2020 when the technical team visited the site. He further stated that the Respondent visited the Appellant’s Kisumu shop at some point and was informed of the delay, although he could not recall the exact date.
43. DW1 added that the Respondent also contacted customer service and was informed that the required stock was not available. He stated that the Respondent was finally informed again in October, 2020 when the equipment became available, and that throughout this period the Respondent did not object but agreed to wait for availability of stock.
44. DW1 further testified that at the time of signing the subscription, customers were required to read and accept the contractual conditions, including the provision that time was not of the essence in the installation of services. He attributed the delay in supply of equipment to global supply chain disruptions during the COVID-19 pandemic, stating that imports from China had been restricted and that only medical supplies were prioritized at the time.
45. The Appellant’s second witness, DW2 Samson Musyoki, testified and adopted the contents of his witness statement dated 14th February, 2023. He stated that he was an agent of the Appellant and was familiar with the facts giving rise to the suit and therefore competent to testify.
46. DW2 testified that on or about 7th September, 2020, the Respondent engaged one of the Appellant’s field agents with the intention of subscribing to the Appellant’s Zuku Fibre platform. He stated that the Respondent was advised to sign a subscription form, agree on installation arrangements, and make payment of Ksh.5,208/- through Zuku Account No. 559922, which the Respondent duly did.
47. DW2 further testified that the Respondent signed the subscription form which contained the terms and conditions of the contract between the parties. He stated that a work order was subsequently generated, and arrangements were made for pre-wiring of the Respondent’s premises.
48. It was DW2’s testimony that on 8th September, 2020, he together with a colleague visited the Respondent’s residence in Milimani, Kisumu, where they were received by the Respondent’s son. He stated that they proceeded to undertake pre-wiring works as agreed, but were unable to activate the internet service due to lack of routers.
49. DW2 testified that the Appellant did not have routers in stock at the time, and that the Respondent was informed that routers were out of stock countrywide due to procurement and importation delays occasioned by the COVID-19 pandemic. He stated that the Respondent was informed that activation would be effected once the routers were imported and made available, and that the Respondent agreed to wait.
50. DW2 further testified that in early October, 2020, after the routers had been delivered to the country, the Appellant’s team visited the Respondent’s premises to complete installation and activate the service. However, he stated that the Respondent denied them access, indicated that he no longer required the services and demanded a refund, after which he chased them away from the premises.
51. DW2 testified that the incident was reported to the Appellant’s supervisors, who thereafter processed a refund of the Ksh.5,208/- to the Respondent via M-Pesa to the same number used for payment.
52. DW2 dismissed the Respondent’s suit as one that disclosed no reasonable cause of action, was scandalous, vexatious and frivolous and was intended to tarnish the Appellant’s reputation and therefore prayed for its dismissal with costs and interest.
53. Upon being cross examined, DW2 told the trial court that he never met the Respondent prior to the installation visit and confirmed that he only went to the Respondent’s premises on 8th September, 2020 for purposes of installing internet services. He stated that upon arrival at the site, they did not have routers as there was a shortage of routers between August and September, 2020, and that internet activation could not be completed without routers being available.
54. DW2 further testified that although he was not involved in the sales process, he understood from the work order that there had been a shortage of routers and that sales agents were informed of this shortage and expected to communicate the same to customers. He, however, stated that he could not confirm whether the sales agent, Mr. Vincent, actually informed the Respondent of the shortage of routers.
55. DW2 confirmed that routers are essential for the provision of internet services and that the shortage affected the Appellant’s ability to complete installations. He also stated that the routers were eventually received in October, 2020 at which point installation could proceed.
56. During re-examination, DW2 stated that he attended the Respondent’s premises on 8th September, 2020 pursuant to a work order, which contained communication between the customer and the sales agent. He testified that upon arrival, they were received by the Respondent’s son, who called the Respondent, and that the Respondent gave them permission to proceed with installation works.
57. DW2 further stated that after carrying out pre-installation works, they informed the Respondent that routers were not yet available and relayed this information to the Appellant’s office. He testified that the Respondent, having been informed previously by the sales agent about the shortage, agreed to wait for the routers to be supplied before full installation could be completed.
E. THE TRIAL COURT’S FINDINGS.
58. The trial court rendered its judgement on 29th June, 2023 and found that there was no dispute that a valid contract existed between the parties for the provision of internet services at the Respondent’s residence upon payment of Ksh.5,208/-.
59. The trial court set down the following issues for determination:
1. Whether there was a valid contract between the Respondent and Appellant.
2. Whether the Appellant breached the contract with the Respondent and infringed his rights as a consumer of its services.
3. Whether the Respondent was entitled to the reliefs sought.
60. On the issue of the existence of a valid contract, the trial court found that there was no dispute between the parties as to its existence, noting that the Appellant expressly admitted that a contractual relationship existed between the parties for the provision of internet services.
61. On the issue of breach, the trial court found that the Appellant’s agents had made representations that internet services would be connected within approximately 24 hours of payment, notwithstanding that the Appellant did not have the necessary routers in stock at the time.
62. The court found that there was no sufficient evidence that the Respondent had been informed of the stock shortage or that he had consented to proceed on that basis with full knowledge of the limitation.
63. The trial court further held that the Appellant’s witnesses confirmed the existence of a shortage of routers and acknowledged that the Sales Agent may not have informed the Respondent of this position, and that it was possible the Respondent had not been properly advised. The court also noted that the Sales Agent who allegedly made the representations was not called as a witness.
64. The trial court held that the Appellant’s conduct amounted to a false or misleading representation, in that the Respondent was led to believe that installation would be completed within a short period despite the Appellant’s inability to do so due to lack of equipment. The court found that the Respondent therefore did not receive adequate information necessary to make an informed decision.
65. The trial court relied on Article 46 of the Constitution on consumer rights and provisions of the Consumer Protection Act, finding that the Respondent was entitled to information necessary to benefit from the services and protection against misleading representations. The court held that the Appellant had infringed the Respondent’s consumer rights by making misleading representations regarding the provision of services.
66. On reliefs, the trial court found that although the Respondent had been refunded the subscription fee of Ksh.5,208/-, he was entitled to compensation for the loss allegedly incurred in obtaining alternative internet access. The court therefore awarded the Respondent Ksh.100,000/- as compensation for alternative accommodation costs, together with a declaration that the Appellant’s conduct constituted breach of contract and infringement of consumer rights. The court also awarded costs and interest of the suit to the Respondent.
F. THE APPELLANT’S SUBMISSIONS ON APPEAL.
67. The Appellant submits that the trial court’s judgement was erroneous both in law and fact, as the learned trial Magistrate misdirected herself in evaluating the pleadings, evidence, and submissions, thereby arriving at a decision unsupported by the record and contrary to established principles governing contractual liability and damages.
68. The Appellant reiterates that the dispute arose from a contractual relationship entered into on or about 7th September, 2020 for provision of internet services. It is submitted that the Respondent executed a subscription form which incorporated the Appellant’s standard terms and conditions, which he acknowledged having read and agreed to.
69. The Appellant relies on clause 4.1.4 of the said terms, which provided that time was not of the essence in the supply and installation of services and that the Appellant would not be liable for costs or expenses incurred due to delay.
70. The Appellant submits that at the time of subscription there was a nationwide shortage of routers/Optical Network Units (ONUs) occasioned by COVID-19 related disruptions in global supply chains, a fact which was communicated to customers and which justified the delay in full installation.
71. It is further submitted that on 8th September, 2020, the Appellant’s technicians visited the Respondent’s premises and undertook pre-wiring works, informing him of the equipment shortage and that the Respondent agreed to await full installation once equipment became available.
72. The Appellant further submits that once the routers were delivered in October, 2020, its technicians returned to the Respondent’s premises to complete installation but were denied access by the Respondent, who declared that he no longer required the services and demanded a refund. The Appellant states that a full refund of Ksh.5,208/- was subsequently processed and paid to the Respondent, which fact was admitted by the Respondent in cross-examination.
73. On liability, the Appellant contends that the learned trial Magistrate erred in finding breach of contract and infringement of c
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