Analysis And Determination
7.I will first consider whether the trial magistrate erred in dismissing the suit filed by the appellants. Order 1 Rule 8 of the Civil Procedure Rules provides as follows:8.One person may sue or defend on behalf of all in same interest(1)Where numerous persons have the same interest in any proceedings, the proceedings may be commenced, and unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them.(2)The parties shall in such case give notice of the suit to all such persons either by personal service or, where from the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the court in each case may direct.(3)Any person on whose behalf or for whose benefit a suit is instituted or defended under subrule (1) may apply to the court to be made a party to such suit.
8.The court in Thachuma Bar Owners Self Help Group v Tharaka Nithi County Government & 2 others  eKLR cited with approval the decision in Kipsiwo Community Self Help Group v A.G & 6 Others  eKLR, where Munya J held inter alia that,
9.The appellants provided the group’s minutes 16/8/2016 authorizing the firm of M/s Ombito & Co. to represent the self-group to pursue Kshs 1,150,000/- from the respondent. Julius Shiundu and Ben Liru in their capacity as chairman and organizing secretary, respectively, were also authorized to act on behalf of the self-group. The appellants also filed an authorization from its members that allowed Julius Shiundu and Ben Liru to sign all relevant documents pertaining to the suit and also appear in the suit on behalf of the self-help group.
10.The members of the self-help group, in my view, had notice of the suit instituted based on the authorization that was signed by its members. However, the appellants did not serve them with notice of the suit after the same was instituted. What then is the effect of this on the appellant’s suit? The issue was discussed by the court in Ahmed Dolal & 9 others (suing on their behalf and on behalf of 27 Members of Likoley Farmers) v Kengen & another  eKLR where it was held that:
11.Having considered the circumstances of this case, including the authorization from members of the self-help group to the appellants to file the suit, I find thata notice was not a mandatory requirement that could render the suit fatally defective for non-compliance. I therefore fault the trial magistrate for dismissing the appellant’s suit yetthey had demonstrated that they had permission to bring the action on behalf of the members of the self-help group.
12.Next, I will proceed to consider the merits of the appellant’s case. As a first appellate court, this court’s role is to subject the whole of the evidence to fresh and exhaustive scrutiny and make my own conclusions about it, bearing in mind that I did not have the opportunity to see and hear the witnesses first-hand. This duty was well stated in Selle & Another v Associated Motor Boat Co Ltd & Others (1968) EA 123.
13.Julius Shiundu (Pw1) testified that he is the chairman of the self-help group and adopted his statement as his evidence in chief. He testified that they paid the respondent 20% of the purchase and the balance was to be financed. Their loan was approved by the bank however, the respondent unilaterally transferred the dealership to Associated Motors Limited. The bank then began processing an approval for the loan once the respondent gave a written cancellation. Pw1 testified that Associated Motors Limited thereafter on 3/6/2015 delivered a bus, Reg. No. KCC 007Y. Pw1 testified that they have requested the respondent for the downpayment they made but the respondent has only refunded Kshs. 270,000/-. On cross-examination, he testified that the plaintiff entered into an agreement with the respondent for the purchase of Nissan ODMKB 2PX and their contract was never terminated.
14.The defence case was closed without calling any witnesses.
15.There is clear evidence that there was an agreement between the appellant and the respondent for the supply of a 51-seater Nissan at Kshs 7.1 million. The appellants paid a total of Kshs 1,420,000/- to the respondents and were issued with the receipt. However, before the respondent performed its obligations, the respondent nominated Associated Motors Limited to supply the bus to the appellant and notified the appellant’s bank. It also notified the bank that there would be a change of make and model of the bus to Isuzu FRR33l. The quotation from Associated Motors to the respondent for the bus was for the price of Kshs 7.1 million and it expected that a deposit of Kshs. 1,420,000/- would be paid. This meant that the deposit of Kshs 1,420,000/- paid by the appellant would be applied to the sale between Associated Motors Limited and the appellant as Associated Motors was then tasked to complete the respondent’s obligation under the new contract. The bank in its letter dated 16/4/2015 approved the asset finance facility for the purchase of the New Isuzu FRR 51-seater bus. The amount to be financed by the bank remained the same i.e., Kshs 5,680,000/-.
16.At this point the terms of the contract had changed and the appellant made no objections to the new terms but instead, it proceeded with the sale. In this regard, the bank in its letter dated 19/5/2015 wrote to the appellant acceding to the appellant’s request to change the unit being purchased and dealership. The bank's letter acted as an addendum to the contract, deleted clauses 3 and 8.1 of their letter of offer and captured the new terms as a result of the change in unit and dealership. Thereafter, the transaction proceeded smoothly and the appellant received the motor vehicle. There was evidence of delivery vide the delivery note dated 11/6/2015 from Associated Motors Limited.
17.After a review of the appellant’s evidence, it is clear the parties' mutually varied terms of their contract. In Housing Finance Co. of Kenya Limited v Gilbert Kibe Njuguna Nairobi HCCC No. 1601 of 1999, it was held:
18.Before the variation of terms, Associated Motors Ltd gave the appellant a quotation for a similar bus, Isuzu model FRR33L at the price point of Kshs 6,184,000/- vide its letter dated 25/3/2015. Even with the knowledge of the price offered by Associated Motors in this quotation, the appellant proceeded with the contract with the varied terms and bought the bus at Kshs 7.1 million.
19.In the end, I find that the appellant failed to prove on a balance of probabilities that the respondent was in breach of contract. I find that the parties mutually varied the terms of their contract. The net effect is that the appeal is hereby dismissed. There shall be no orders as to costs.