https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7493

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BOMET** **CIVIL APPEAL NO. E034 OF 2023** **GLEVANTUS LIMITED ……………………………..…… APPELLANT** **VERSUS** **BOARD OF GOVERNORS KAPWERIA** **SECONDARY SCHOOL …………………………….... 1ST RESPONDENT** **ATTORNEY GENERAL ………………………………. 2ND RESPONDENT** *(Being an Appeal from the Judgment of Senior Resident Magistrate, Omwange J.**at the Magistrate’s Court at Sotik, Civil Suit Number 148 of 2015)* **J U D G M E N T** 1. The Appellant (then Plaintiff) sued the Respondents (then Defendants) for breach of contract and prayed for specific performance. The Appellant alleged that he had entered into a contract for the construction of a dormitory with the 1st Respondent and that the 1st Respondent had failed to pay him his balance after he had completed the said construction. In its Judgement dated 12th May 2023, the trial Court dismissed the Appellant’s suit. 2. Being aggrieved with the Judgment of the trial Court, the Appellant filed its Memorandum of Appeal dated 10th June 2023 appealing against the whole Judgement. 3. My duty as the 1st Appellate Court is to re-evaluate and re-examine the evidence in the trial court and come to my own findings and conclusions, but in doing so, to have in mind that I neither heard nor saw the witnesses testify. 4. I hereby proceed to summarise the case in the trial Court and the Parties’ respective submissions in the present Appeal. **The Plaintiff’s/Appellant’s case.** 1. Through its Plaint dated 23rd June 2015, the Appellant stated that it entered into a contract with the 1st Respondent on 2nd October 2013 to build a dormitory for the total cost of Kshs 3,200,000/=. That despite completion of the construction, the 1st Respondent retained its balance to the tune of Kshs 2,230,000/=. The Appellant further stated that the 1st Respondent had declined to pay its balance. 2. Through its written submissions dated 8th October 2025, the Appellant submitted that the Respondents pleaded breach of contract in their defence but failed to particularize it as per the law. That the contract was signed by the school principal, Mr. Aila Isatu on behalf of the 1st Respondent and the Appellant. The Appellant further submitted that Respondent’s witness (DW1) did not participate in signing the contract and was not involved in supervising the construction of the dormitory. 3. It was the Appellant’s submission that the dormitory was completed, opened and was being used. It was the Appellant’s further submission that the trial Court erred when it held both parties breached the contract as he who alleges had to prove. He relied on **Section 107 of the Evidence Act** and **Reliable Electrical Ltd vs Mantrac Kenya Ltd (2006) eKLR.** 4. The Appellant submitted that he completed the construction of the dormitory and ought to be paid the balance of Kshs 2,205,000/=. **The Defendants’/Respondents’ case.** 1. Through their statement of defence dated 24th November 2017, the Respondents denied that they breached the said contract. That the Appellant did not perform their part of the contract. The Respondents further stated that the Appellant was given part of the agreed price but the Appellant breached the contract by failing to perform its part. 2. Through their written submissions dated 5th May 2026, the Respondents submitted that the Appellant did not honour the terms of the contract and their witnesses led corroborative evidence. That the trial court was correct in finding that there was a breach of contract. The Respondents further submitted that the Appellant failed to complete the construction of the dormitory and the same was completed by the community members christened Haraka Builders. 3. It was the Respondents’ submission that there was no evidence that the Appellant had completed construction as there was neither a hand over report nor a certificate of completion. That the order of specific performance was not available upon the breach of the contract. They relied on **Quest Resources Limited vs Japan Port Consultants (2015) eKLR**. It was the Respondents’ further submission that the Appellant had been paid all his dues in accordance to the work he had done and was estopped from unjust enrichment. 4. I have gone through and carefully considered the Record of Appeal dated 30th August 2024, the Appellant’s written submissions dated 8th October 2025 and the Respondents’ written submissions dated 5th May 2026. The only issue that I have sieved for my determination was whether the trial court erred when it dismissed the suit. 5. From the onset, there was no dispute that the parties entered into a contract dated 2nd October 2023 for the construction of the dormitory at the 1st Respondent. There was also no dispute that the Appellant was paid a total of Kshs 995,000/= as part payment for the performance of the contract. The point of divergence was whether the Appellant completed the construction of the dormitory warranting full payment of the contract price. 6. It is trite that the burden of proof lay with the Appellant. The Appellant had to demonstrate that it fully performed its obligations under the said contract. I have looked at the contract that was produced as **P. Exh 1**. It stated that the Appellant’s scope of work included roofing, wall plastering, floor finishing, painting and external finishing. Robinson Letangula (PW1) testified that the Appellant had completed the construction of the dormitory and handed the keys to the former school principal Mr. Joseph Aila and that he was never paid his balance despite completing the said construction. When PW1 was cross examined, he testified that he was not given a completion certificate from the officer in charge of public works. 7. Kevin Ogama (PW2) testified that he was a carpenter employed by the Appellant. PW2 testified that he was involved in the construction of the dormitory and that he worked on the roof which he completed, then went ahead to make door frames and fixed three doors. PW2 further testified that he left when paint work and glass fixing was commencing. 8. On the other hand, the Respondents stated that the Appellant failed to honour the terms of the contract as he failed to complete the construction of the dormitory. Nelson Metet (DW1) testified that he was the current school principal of the 1st Respondent. That the former Principal did not hand over any debt to him from the 1st Respondent and only became aware of the Appellant’s allegations through a letter. His testimony remained uncontroverted upon cross examination. 9. Joseph Kiplangat Arusei (DW2) testified that he was the PTA chairman during the subject period and that the Appellant put up the roofing i.e. traces and iron sheets, plastered the wall, put up the window frames and left without completing the construction as agreed. DW2 further testified that the local community also known as Haraka Builders completed the dormitory by putting the window panes, flooring and painted the walls and doors. DW2’s testimony remained uncontroverted upon cross examination. 10. Ronald Kipngetich Rono (DW3) testified that he was the 1st Respondent’s bursar and that the Appellant put up the roof, plastered the walls, put up the window frames and disappeared without completing the work, DW3 further testified that the local community and parents came together and finished the construction of the dormitory which had stalled for some time. When DW3 was cross examined he reiterated his testimony that the Appellant did not complete the construction of the dormitory and there were no documents indicating otherwise. 11. Joseph Kibii Korui (DW4) testified that the Appellant was contracted to do the roofing of the dormitory, plastering of the wall and window frames. DW4 further testified that the Appellant left the dormitory incomplete for a long time. DW4 testified that the local community contributed amongst themselves and finished the construction of the dormitory. His testimony remained uncontroverted upon cross examination. 12. Richard Kipkorir Langat (DW5) testified that he was a carpenter and was contracted by the Appellant to complete the dormitory which was incomplete. DW5 testified that he was given the work of putting traces for roofing and that the Appellant left after they had done roofing, fixing window frames and plastered the walls. DW5 further testified that the local community came in and assigned him to make and fix wooden doors which he did. His testimony remained uncontroverted upon cross examination. 13. From the above evidence, it was clear that the Appellant failed to demonstrate that it had completed the construction of the dormitory which included floor and external finishing. The Appellant’s witness, PW2 testified that he was involved in the roofing of the dormitory and making of the door frames and left when paint and glass work commenced. Additionally, PW1 admitted under cross examination that he did not have the completion certificate. In my view, the evidence adduced by the Appellant in regards to proving that it had fulfilled its obligations under the contract was insufficient. 14. Though the Respondents did not bear the legal burden of proof, they bore the evidentiary burden of proof once the Appellant claimed breach of contract against them. The Respondents’ position was that the Appellant had not fulfilled its obligations under the contract as it failed to complete the construction of the dormitory. All the Respondents’ witnesses (DW1-DW5) gave corroborative testimony that the Appellant did roofing and plastered the walls and the local community also known as Haraka Builders completed the construction of the dormitory. It is salient to note that all these testimonies were uncontroverted upon cross examination. 15. Flowing from the above, there was overwhelming evidence that the Appellant did not complete the construction of the dormitory. This meant that it did not fulfill its obligations under the contract. In essence, the Appellant approached the trial court with unclean hands and did not deserve equity. I agree with the trial court that the Appellant breached the contract by not fulfilling its obligations under it and the remedy of specific performance was not available to it. 16. In the final analysis, it is my finding that this court has no reason to interfere with the decision of the trial court. It is my further finding that the Appeal dated 10th June 2023 has no merit and is dismissed. 17. Each Party to bear its own costs of the Appeal. **Judgment delivered, dated and signed at Bomet this 3rd Day of June, 2026.** **...........................................** **HON. JULIUS K. NG’ARNG’AR** **JUDGE** **Judgment Delivered in the presence of;** **Siele/Susan – Court Assistant** **Rono for Appellant**