Ojanga v Toyotsu Auto Mart Kenya Ltd (Civil Appeal 580 of 2019) [2026] KECA 471 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a car buyer's fraud claim, ruling that 'as is, where is' clauses don't excuse dealer quality obligations—but his evidence still fell short.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether the appellant adduced evidence in support of his claim
- 2.whether the appellant proved his claim
- 3.whether the appellant is entitled to the reliefs sought in the plaint
Key legal issues
#Whether a witness statement reiterating the plaint amounts to evidence
The learned Judge erred: the appellant adopted his statement on oath, was cross-examined, and produced unchallenged exhibits, so evidence was adduced.
Order 3 rule 2 and Order 7 rule 5 govern witness statements, but mere filing does not make them evidence. Adoption under oath plus reliance and the opponent's opportunity to cross-examine converts the statement and exhibits into evidence. Here the appellant testified as PW1, adopted his statement, produced documents as exhibits, and was cross-examined without the documents being impeached, so the trial court was bound to consider that evidence rather than dismiss it.
Whether fraud was proved in the sale of the vehicle
No. The pleaded fraud, concealment of defects and dishonesty were not proved despite the evidential error below.
Fraud is a conclusion of law requiring specific pleading and proof above a balance of probabilities. The defects identified did not go to the core function of the vehicle, the respondent accepted responsibility and repaired them, and the delay in the logbook was explained by the slow processes of the Registrar of Motor Vehicles. The appellant therefore failed to prove fraudulent concealment or dishonesty.
Implied condition of merchantable quality and the 'as is, where is' clause
The clause did not oust the implied condition of merchantable quality, but the proved defects did not render the vehicle unmerchantable.
Exclusion clauses derogating from statutory conditions are construed strictly against the party relying on them, and there was no sale agreement whose terms could oust the implied condition. However, merchantability for a secondhand vehicle requires only reasonable fitness and roadworthy condition, not perfection; the identified defects were repaired and did not destroy the vehicle's core function.
Liability for the fatal accident allegedly caused by vehicle defects
The respondent was not liable because no evidence connected the accident to the alleged defects.
The appellant claimed the vehicle caused an accident five days after delivery that killed his mother, yet tendered no evidence of causation between the pleaded defects and the accident. Without that causal link, the respondent cannot be held liable for the resulting loss, and no compensation could be sustained.
Entitlement to general and special damages
General damages not recoverable for breach of contract and special damages unproved; at most a refund of the purchase price and extras could have been available on rescission.
General damages are not ordinarily recoverable in contract absent proof fitting the exceptions, and no evidence supported the alleged mental anguish. Special damages of Kshs. 36,571,946 were not proved; the appellant himself acknowledged this. Had rescission succeeded, recovery would have been limited to the purchase price of Kshs. 2,905,555 and possibly Kshs. 960,391 spent on the vehicle.
Legal principles established
#- A witness statement filed in civil proceedings becomes evidence only once adopted by its maker under oath, relied upon, and tested in cross-examination; a trial court may not dismiss such evidence offhand as mere pleading.
- Fraud must be specifically pleaded and proved by evidence to a standard above the balance of probabilities but below the criminal standard.
- A general 'as is, where is' clause does not clearly and unambiguously exclude the implied condition of merchantable quality under section 16 of the Sale of Goods Act; exclusion clauses are construed strictly against the party relying on them.
- A secondhand or reconditioned vehicle sold by a dealer must be merchantable - reasonably fit for ordinary use, roadworthy, and safe - even if not perfect; merchantability is tested at the time of delivery.
- General damages are not ordinarily recoverable for breach of contract, absent proof falling within recognized exceptions.
- Special damages must be both specifically pleaded and specifically proved.
Court orders
#- 1.The appeal is dismissed
- 2.Each party to bear their own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- not stated in judgment
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (specific statutory provision not cited in the judgment)
Relief refused
#Rescission of the sale contract and return of the vehicle
Fraud was not proved; the defects identified did not go to the core function of the vehicle and were repaired
Special damages of Kshs. 36,571,946
Not specifically proved by evidence
General damages for fraud, mental anguish and torment
General damages are not ordinarily recoverable for breach of contract and no evidence supported the claim
Damages for the death of the appellant's mother
No evidence linked the accident to the alleged defectiveness of the vehicle
Costs of the appeal against the respondent
Although the appellant succeeded on the evidentiary point, the appeal as a whole failed
Costs
Each party to bear their own costs of the appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Such a statement only qualifies as evidence once it is adopted by the author under oath and relied on, after which the adverse party is allowed to cross-examine the maker to test the veracity of the averments contained therein.
In the circumstances, the learned Judge erred in finding that the witness statement merely reiterated the plaint and did not amount to evidence.
fraud must be proved as a fact by evidence whose standard of proof is beyond a balance of probabilities but not as high as that of beyond reasonable doubt, which is applicable in criminal trials.
Exclusion clauses which purport to derogate from statutory or implied conditions are to be construed strictly, and any ambiguity resolved against the party relying on them.
Merchantable quality does not connote perfection. It denotes that the goods are reasonably fit for the ordinary purpose for which goods of that description are commonly bought, having regard to their age, price, and description.
general damages are not ordinarily recoverable for breach of contract.
As regards the issue of costs, we appreciate that the appellant succeeded in demonstrating that the learned Judge erred in holding that he did not adduce evidence in support of his claim. Even though this victory has not borne any monetary fruits for the appellant, the appropriate order in the circumstances is to direct each party to bear own costs of the appeal, which we hereby do.
Issues in the judgment
#The judgment records the appellant being cross-examined in re-examination 'by Ms. Akello, learned counsel for the respondent', although the respondent is elsewhere stated to have been represented by 'learned counsel, Mr. Ogunde'
Alfred Kioko Muteti -vs- Timothy Miheso & Another is named only within the appellant's verbatim grounds of appeal, not by the court itself
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ojanga v Toyotsu Auto Mart Kenya Ltd (Civil Appeal 580 of 2019) [2026] KECA 471 (KLR)", Case Analysis (2026). Civil Appeal (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/471/eng@2026-03-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.