https://new.kenyalaw.org/akn/ke/judgment/scc/2026/79

Cuban Leaves Ltd v Owino (Commercial Case E226 of 2026) [2026] SCC 79 (KLR) (9 June 2026) (Judgment) Neutral citation: [2026] SCC 79 (KLR) Republic of Kenya In the Small Claims Court at Mombasa Commercial Case E226 of 2026 TN Mwangeka, RM June 9, 2026 Between Cuban Leaves Ltd Claimant and John Owino Respondent Judgment 1.The Claimant, acting in good faith, engaged the services of the Respondent sometime in or about January 2025 for the preparation and completion of a cabinet at an agreed consideration of Kshs. 23,000/=. The terms of the oral agreement were clear and unequivocal. Out of the agreed sum, Kshs. 14,000/= was to cater for materials while Kshs. 9,000/= was to constitute labour charges. The Claimant fully honoured its obligations under the agreement by remitting the entire agreed consideration to the Respondent which is not denied. 2.The Claimant states that the Respondent fundamentally breached the agreement in multiple respects. First, the Respondent failed to produce a cabinet conforming to the agreed specifications. Second, despite receiving full payment, the Respondent failed to complete the work. Third, the Respondent improperly demanded additional monies from the Claimant in order to rectify defects arising from his own workmanship. Fourth, the Respondent engaged in persistent delay and evasion. Consequently, the Claimant seeks refund of Kshs. 23,000/- from the Respondent. 3.On his part, the Respondent attributes the breach of the contract to the frustrations by the Claimant. The Respondent submits that he commenced performance of the contract, a sum of around Kshs. 14,000/= was utilized in the purchase of materials, which the balance was intended to cater for labour and completion of the works. 4.Further, that it is the Claimant who failed and/or refused to facilitate completion of the work and rejected the work in progress. 5.The court has considered the pleadings, evidence in support as well as the written submissions in respect of both parties and finds that it is not in dispute that the Respondent was contracted to make a cabinet for the Claimant, which he did but its doors were found to be defective and required rectification. This was acknowledged by the Respondent as evidenced in the whatsapp messages filed, which are admitted in evidence as per Section 32 as read with Section 3(3)(d) of the Small Claims Court Act. 6.It has also been proven through the said whatsapp messages that the Respondent did not undertake the said rectifications and instead demanded for money to buy materials for the said work. This is despite causing the defeat and already receiving payment. As rightly submitted by the Claimant, the Respondent failed to exercise reasonable skill, care, diligence, and competence in performance of the contracted works. In Continental Homes Limited v Martova Limited (Civil Case E019 of 2021), the court was clear that the contractor is responsible for rectifying defects that are deemed to arise from noncompliance with the contract, poor workmanship, or use of improper materials. I associate myself with the finding of the court. 7.In interpreting the conduct of the parties in execution of a contract, the Court in Hassan Zubeidi – Versus - Patrick Mwangangi Kibaiya & another [2014] eKLR held that:“the legal position is that a party should never be allowed to take advantage of his wrongs/omissions at the expense of the other party. The 1st respondent is seeking to walk away from the JVA with the sole intention of defeating the Applicant's interest notwithstanding the fact that the Applicant's money has been used to significantly reduce the 2nd Respondent's indebtedness to the bank.” 8.In terms of relief therefore, the Respondent is obligated to rectify the cupboard to the required standards and specifications of the Claimant at his own costs or refund the contractual sum of Kshs. 23,000/-. 9.Ultimately, based on the evidence on record, the Claimant has proved its case against the Respondent on a balance of probabilities. Judgment is entered in favour of the Claimant against the Respondent as follows;a.Judgment is entered for Kshs. 23,000/- being the consideration paid to the Respondent.b.In the alternative to (a) above the Respondent to undertake repairs of the Claimant’s wardrobe within 14 days of the date of this judgment else refund the Claimant Kshs. 23,000/-.c.There shall be no interest on (a) above.d.Cost are awarded to the Claimant of Kshs. 2,000/-. DATED SIGNED AND READ VIRTUALLY AT MOMBASA THE……9TH….DAY OF……JUNE………2026HON. THERESA N. MWANGEKARESIDENT MAGISTRATE/ADJUDICATORIn the presence of;……N/A….for Claimant;…N/A… for RespondentC/A Esther