https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10011

Flower City Kenya Ltd v Johgab Construction Co Ltd (Civil Appeal E363 of 2024) [2026] KEHC 10011 (KLR) (9 July 2026) (Judgment) Neutral citation: [2026] KEHC 10011 (KLR) Republic of Kenya In the High Court at Thika Civil Appeal E363 of 2024 BW Murunga, J July 9, 2026 Between Flower City Kenya Limited Appellant and Johgab Construction Co Ltd Respondent (Being an appeal from the Judgment and Decree of the Chief Magistrate, Hon. S. Atambo, delivered on 29th November 2024 in Thika CMCC Civil Suit No. 814 of 2019) Judgment 1.This is a first appeal arising from the Judgment and Decree of the Chief Magistrate's Court at Thika delivered on 29th November 2024 by Hon. S. Atambo, CM in Thika CMCC No. 814 of 2019. The trial court entered judgment in favour of the Respondent against the Appellant for the sum of Kshs. 9,000,000/- being the outstanding balance for construction works, alongside Kshs. 1,000,000/- in general damages for breach of contract, plus costs and interest. Background Facts 2.The genesis of the dispute traces back to a construction contract wherein the Appellant engaged the Respondent to undertake grading and construction works for a proposed godown situated on Plot No. 22280/1 in Machakos County. The Respondent averred that it diligently executed the works, leading to a total accrued value of Kshs. 69,758,076.14 owing to various variations. 3.The Respondent averred that the Appellant made piecemeal payments totaling Kshs. 42,180,000/-, leaving an outstanding balance of Kshs. 27,578,076.14. Following negotiations on 23rd September 2017, the parties mutually agreed to scale down this balance to Kshs. 23,500,000/-. The Appellant subsequently paid Kshs. 14,500,000/-, leaving a final unpaid balance of Kshs. 9,000,000/- which formed the crux of the suit. When the Appellant failed to settle this sum, the Respondent instituted the suit seeking the principal sum of Kshs. 9,000,000/- plus general damages for breach of contract and costs of the suit with interest thereon. 4.The Appellant entered appearance and filed a Defence, contending that the contractual amount was strictly capped at Kshs. 24,000,000/- as per the initial Bills of Quantities (BQs). The Appellant further alleged that the works were substandard, defective and incomplete. Consequently, having paid Kshs. 56,680,000/-, the Appellant posited that the Respondent was fully paid and was not entitled to any further sums. 5.After full trial, the learned Chief Magistrate found in favour of the Respondent, entering judgment for the principal sum of Kshs. 9,000,000/-, an award of Kshs. 1,000,000/- as general damages for breach of contract, plus costs and interest. The Appeal And Submissions Of The Parties 6.Aggrieved by that decision, the Appellant lodged the instant appeal setting out ten (10) grounds in its Memorandum of Appeal. The grounds can be distilled into four main issues:a.That the Plaint was fatally defective for lack of a valid verifying affidavit authorized under the company seal, contrary to Order 4 Rule 1(4) of the Civil Procedure Rules;b.That the trial court erred in relying on electronic evidence (emails) that lacked a certificate of compliance under Section 106B of the Evidence Act;c.That the trial court erred in ignoring the uncontroverted expert evidence of DW1 and effectively re-writing the contract by awarding sums beyond the original Kshs. 24,000,000/- BQ; andd.That the trial court erred in law by awarding Kshs. 1,000,000/- as general damages for breach of contract, which were neither pleaded nor legally maintainable. 7.In its written submissions, the Appellant argued that a rubber stamp cannot replace a corporate seal, rendering the Plaint a nullity ab initio. 8.Furthermore, the Appellant contended that the trial court engaged in 'sympathetic sentimentalism' by awarding general damages for breach of contract, citing the principle that damages in contract must be strictly compensatory and restricted to pecuniary loss. 9.Conversely, the Respondent urged this Court to dismiss the Appeal, arguing that the technical objection to the verifying affidavit was an afterthought meant to defeat substantive justice. The Respondent further submitted that the trial court did not re-write the contract, but merely gave effect to the parties' actual commercial dealings, as evidenced by the Appellant's own conduct of paying Kshs. 56,680,000/- on a supposed Kshs. 24,000,000/- contract. The Respondent maintained that the Appellant's conduct was oppressive and high-handed, justifying the award of general damages. Jurisdiction Of The First Appellate Court 10.The duty of a first appellate court is well established in Kenyan jurisprudence. This Court is obligated to reconsider and re-evaluate the evidence on record and draw its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. 11.This principle was succinctly captured in the case of Rentco East Africa Limited v Dominic Mutua Ngonzi [2021] KEHC 1079 (KLR) where the Court held as follows:“Apart from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law an appellate court has jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution... if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight." 12.Similarly, in Selle & another v Associated Motor Boat Co. Ltd & others [1968] EA 123, the Court of Appeal for East Africa stated:“…this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.” Analysis And Determination 13.Having perused the Record of Appeal, the Supplementary Record of Appeal and the rival written submissions, I condense the determination of this Appeal into the following issues: Issue 1: Whether the suit was fatally defective for want of a valid verifying affidavit. 14.The Appellant contended that the Respondent's Plaint was defective because the corporate resolution accompanying it bore a rubber stamp rather than an embossed common seal, purportedly violating Order 4 Rule 1(4) of the Civil Procedure Rules. Furthermore, the Appellant submitted that the verifying affidavit lacked a proper commissioning stamp. 15.While the rules of procedure are designed to regulate the formal steps in litigation, Article 159(2)(d) of the Constitution commands this Court to administer justice without undue regard to procedural technicalities. 16.In Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 others [2013] KECA 113 (KLR), the Court of Appeal restated the proper place of procedural rules in the administration of justice, and held as follows:“…the relation of rules of practice to the administration of justice is intended to be that of a handmaiden rather than a mistress and that the court should not be too far bound and tied by the rules, which are intended as general rules of practice, as to be compelled to do that which will cause injustice in a particular case.” 17.The defect complained of, if defect it was, did not go to the root of the suit. The verifying affidavit served its essential purpose of confirming the correctness of the averments in the Plaint, and the Appellant has not demonstrated any prejudice occasioned to it by the form of the accompanying resolution. Such a defect is, at worst, curable and could not, without more, invalidate an otherwise properly instituted suit. 18.The Appellant entered appearance, filed a defence, cross-examined the Respondent's witness and called its own witness. An invitation to strike out the suit at the appellate stage on account of a missing corporate seal, after the parties have fully contested the merits, offends the overriding objective of the Civil Procedure Act. I find no merit in this ground of appeal. Issue 2: The Admissibility of Electronic Evidence (Section 106B) 19.The Appellant contended that the email correspondences acknowledging the debt were inadmissible as they were not accompanied by a certificate as required by Section 106B of the Evidence Act. While the statutory requirement for such a certificate is mandatory for electronic evidence, the law requires that objections to the admissibility of evidence be raised at the earliest opportune moment, primarily when the documents are being produced in evidence during trial. 20.It is a matter of record that these documents were introduced at the trial court without any objection from the Appellant, which allowed the documents to form part of the trial record without demur. 21.As noted by the High Court in Peter Ngethe Ngari t/a PNN Funeral Services v Standard Group Limited PLC [2020] KEHC 8905, where the makers or recipients of electronic correspondence testify to their contents without objection and the documents form part of an undisputed chain of events, belated objections based strictly on Section 106B cannot be utilized to ambush the opposing party. 22.The rationale for this position is plain. The certificate contemplated under Section 106B serves to authenticate electronic records and to guard against the risk of tampering. Where the authenticity of the correspondence was never placed in issue at the trial, and where the parties themselves treated the documents as genuine in their dealings and in their testimony, the mischief which the certificate guards against does not arise. A party which elects not to object at the trial cannot be permitted to hold the point in reserve and deploy it for the first time on appeal. 23.Therefore, an objection of this nature cannot be successfully raised as an afterthought on appeal. In any event, the emails merely fortified an incontrovertible truth that had already been established by the parties' conduct. Issue 3: Did the Trial Court Re-write the Contract? 24.The Appellant contends that the trial court rewrote the contract by awarding sums beyond the original Kshs. 24,000,000/- Bill of Quantities limit. To buttress this, the Appellant relied heavily on the expert testimony of DW1 (Kenneth Mungai), a Quantity Surveyor, who valued the works at Kshs. 24,219,311.41. The principal difficulty with this argument, however, lies in the Appellant’s own payment history. 25.In civil cases, the standard of proof is on a balance of probabilities. The Court in African Line Transport Company & another v Sylvester Keitany [2017] eKLR espoused this standard thus:“That degree is well settled. It must carry a reasonable degree of probability... If the evidence is such that the tribunal can say, ‘we think it more probable than not’, the burden is discharged." 26.Applying this standard, the Appellant’s argument that the contract was strictly capped at a lesser amount is difficult to reconcile with its own conduct. It is common ground that the Appellant paid the Respondent Kshs. 56,680,000/- over the life of the project. If the contract was definitively capped at Kshs. 24,219,311.41 and the works were, as alleged, defective and substandard, it is difficult to understand why a rational commercial entity would pay more than double the contract sum. The Appellant’s financial conduct strongly demonstrates that the parties had varied the contract, either expressly or by their course of dealing. 27.Crucially, the Appellant failed to call its principal factual witness, Mr. Kanchanbhai Patel, the Director who was best placed to rebut the Respondent's claims regarding variations and payment commitments. Instead, the Appellant fielded a Quantity Surveyor (DW1) engaged in July 2020, years after the project's completion, who had no personal knowledge of the commercial negotiations. By opting not to call its Director to testify and be cross-examined on the payment history, the Appellant left the Respondent's factual narrative on the negotiated Kshs. 9,000,000/- balance largely uncontroverted. 28.The consequence of that election is that the Respondent’s evidence on the negotiations of 23rd September 2017 and the agreed outstanding balance stood effectively unchallenged. Where a party fails, without explanation, to call a witness who is available and best placed to speak to a contested issue, the court is entitled to infer that the evidence of that witness, had it been tendered, would not have advanced that party’s case. 29.It is also a well-established principle that a party cannot approbate and reprobate. A party cannot voluntarily pay over Kshs. 56 million, negotiate an outstanding balance, and thereafter retreat behind the initial Kshs. 24 million Bills of Quantities in order to evade the agreed final balance. The trial court did not rewrite the contract; it merely gave effect to the contract as varied by the parties' own conduct, which crystallized the outstanding debt at Kshs. 9,000,000/-. I find no misdirection by the trial court on this front. Issue 4: The Award of General Damages for Breach of Contract 30.The trial court awarded the Respondent Kshs. 1,000,000/- as general damages for breach of contract, citing the effort in drawing bills of quantities and executing performance bonds. It is a trite principle of law that general damages are not generally recoverable in actions for breach of contract. 31.An appellate court is entitled to interfere with an award of damages where it is demonstrated that the trial court acted upon a wrong principle of law, took into account irrelevant considerations, or made an award that finds no support in the pleadings and the evidence. 32.In Kenya Trucks and Tractors Limited v County Government of Mombasa [2023] KEHC 2394 (KLR), the Court reaffirmed this position, quoting the Court of Appeal in Kenya Tourist Development Corporation v Sundowner Lodge Limited:“...as a general rule general damages are not recoverable in cases of alleged breach of contract and that has been the settled position of law in our jurisdiction... To award it anything else would be to engage in sympathetic sentimentalism as opposed to proof-based judicial determination." 33.Furthermore, in Consolata Anyango Ouma v South Nyanza Sugar Co. Ltd [2015] eKLR, the Court emphasized that the purpose of damages for breach of contract is restitutio in integrum (to put the claimant in the same position as if the breach had not occurred) through proven special damages, not general damages at large. Costs incurred in the performance or preparation of a contract (such as drawing BQs or executing performance bonds) are in the realm of special damages, which must be specifically pleaded and strictly proved. 34.The position is one of long standing. In Dharamshi v Karsan [1974] EA 41, the Court of Appeal for East Africa held that damages for breach of contract:“…are not damages at large or general damages but are in the nature of special damages and they must be pleaded and proved.” 35.Applying these principles, the award of Kshs. 1,000,000/- as general damages was neither pleaded nor anchored on any proven pecuniary loss, and it departed from binding precedent. The trial court thereby acted upon a wrong principle of law. This ground of appeal accordingly succeeds, and the award cannot stand. Determination 36.In the final analysis, the Appellant cannot deploy procedural technicalities to escape a commercial obligation which it acknowledged through its sustained conduct and part-payments. The trial court properly found the Appellant liable for the outstanding balance of Kshs. 9,000,000/-. However, the trial court misdirected itself in law by awarding Kshs. 1,000,000/- as general damages. 37.Accordingly, I make the following final orders:a.The Appeal is partially allowed.b.The Judgment and Decree of the Chief Magistrate's Court delivered on 29th November 2024 is hereby affirmed to the extent of the award of Kshs. 9,000,000/- together with interest at court rates from the date of filing the suit until payment in full.c.The trial court's award of Kshs. 1,000,000/- as general damages for breach of contract is hereby set aside.d.Given that the Respondent has substantially succeeded in defending the core of the lower court's decree, the Appellant shall bear the costs of this Appeal.It is so Ordered. DATED AND DELIVERED AT NAIROBI THIS 9TH DAY OF JULY, 2026.BENARD WAFULA MURUNGAJUDGE OF THE HIGH COURTDelivered on virtual platform in the presence of:Mituga for the AppellantNgetich Chiira for the Respondent (N/A)Kevin Babu - Court Assistant