JUDGMENT OF THE COURT
The appellant, Tobias M. Wafubwa, has appealed against the judgment of Ali Aroni, J, wherein the court set aside the decision of the trial court which dismissed the respondent’s claim for a refund of a sum of Kshs 450,000/-.
The background to the dispute is that in an amended plaint filed in the Chief Magistrate’s Court at Bungoma, the respondent stated that by a sale agreement made with the appellant on 15th June 2010, he paid the appellant a sum of Kshs 450,000/- for purchase of a motor vehicle, leaving a balance of Kshs 310,000/-. The motor vehicle was to be delivered within four months, upon which the balance would be paid. As the appellant failed to deliver the motor vehicle within the stipulated period, the respondent claimed a refund of the deposit paid.
The appellant denied having entered into the agreement, but contended that there was an initial agreement with the respondent for motor vehicle KBH 245T Toyota for Kshs 850,000/- out of which the respondent p…