httpwwwkenyalaworg Page 1523 Gragan K Limited v General Motors K Limited

Httpwwwkenyalaworg page 1523 gragan k limited v

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Gragan (K) Limited v General Motors (K) Limited & another [2016] eKLR 85. Further, from the maintenance and warranty booklet issued by the 1 st defendant it is clear the defendants expressly warranted the vehicle to be free from defects in material and workmanship under normal use and service on the listed terms. However, there was no warranty as to the merchantability or fitness for the purpose for which the vehicle was intended . Such warranty would only be implied if the buyer relied on the skill and judgment of the seller or dealer or where the vehicle(goods) were bought by description from a seller dealing with such goods. The plaintiff did not adduce any evidence to show that it relied on the skill and judgment of the defendants or that the suit motor vehicle was bought by description and for a specific purpose. 86. In my humble view, the plaintiff was under a duty to check if there were any defects before using the motor vehicle for its intended purpose. There is no dispute that the said motor vehicle broke down after covering 3175 kilometers. According to the warranty document as exhibited, if the engine malfunctioned during the duration of the warranty, then the buyer would deliver it to the dealer for repair or replacement of the diesel engine after the dealer satisfied itself that the part was defective. In this case, there was evidence that after the vehicle broke down , the same was delivered to the 2 nd defendant dealer for repairs, and that it was repaired but that and when it returned to the buyer, it broke down again on 23 rd October 1995. 87. The 1 st defendant confirmed that the vehicle had engine failure due to engine overrun and that when the vehicle was delivered to the plaintiff, it broke down at mileage 10,247 and on 13 th February 1996, the report was the same as that of engine failure due to suspected engine overrun. What is missing from both the plaintiff and defendant’s evidence is what an engine overrun is. This is information which could have been explained by an independent motor vehicle or automotive expert. The expert would, in my view be in a position to explain to this court whether engine overrun is a fundamental manufacture’s defect in a motor vehicle or can be caused by normal usage of the motor vehicle. In the absence of the independent expert’s evidence as to whether engine overrun in the suit motor vehicle was due to a manufacturer’s fundamental defect, or due to other causes, this court would not be in a position to find that the engine failure was due to a fundamental manufacturer’s defect. To find otherwise would be speculating the meaning of technical terms used in a different profession and setting. Furthermore, DW1 did not explain to the court what that engine overrun was. That being the case, it was upon the plaintiff to call for such independent expert to explain to the court the meanings of such technical terms since DW1 did not even inspect the suit motor vehicle.

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