[2017] KEHC 7092 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MALINDI

CIVIL CASE NO. 9 OF 2014

GONA JACOB JANJA ………….....…....…….. 1ST PLAINTIFF

ITAVIGNOLA ANNA …………………….....…… 2ND PLAINTIFF

VERSUS

LUIGI GOSPEDINI ………………………...……… DEFENDANT

CONSOLIDATED WITH CIVIL CASE NO. 14 OF 2015

JAMBO IMOBILIARE LTD …….....…………….……. PLAINTIFF

VERSUS

ANNA ITAVIGNOLA ……………….....………...…... DEFENDANT

JUDGEMENT

The 2nd plaintiff entered into a construction agreement with the defendant in January 2013. The plaintiff filed this suit claiming a reimbursement of Kshs.9,800,000/= plus special damages of Kshs.1,876, 229/=. On the other hand, the defendant filed suit number 14 of 2015 seeking 75,000 euros plus costs. The two suits were consolidated and file number 14 of 2015 was made to be the defendant’s counter claim.

Despite the matter being fixed for hearing several times, the plaintiffs failed to attend court. The counter claim was heard ex-parte. Counsel for the plaintiffs ceased acting.

The defendant’s evidence is that an agreement was signed on 1st December, 2012. LUIGI GOSPEDINI is a director with the defendant company. The defendant entered into a construction agreement whereby it was to construct a villa for the plaintiffs at Plot Number 11860 (Original No. 412/2/624) Malindi. The total construction costs was 125,000 pounds. It is PW1’s evidence that the initial contract had no swimming pool or garage. Parties orally agreed to include the two items at a cost of 25,000 Euros excluding value added tax (V.A.T.).

The defendant’s further evidence is that it constructed the villa, the swimming pool and the garage. Before handing over the property he received a letter from the plaintiff’s counsels asking him to stop any further work and vacate the premises. On 22nd October, 2013 he received a letter from the Shella sub-location assistant chief asking him to go to his office on 25th October, 2013. He went there and found the 1st plaintiff. The first plaintiff was not a party to the contract. PW1 further testified that he received a second letter dated 4th February, 2014 from the plaintiffs’ counsels threatening him with arrest and forfeiture of his passport. The defendant was only paid 85,000 Euros leaving a balance of 65,000 euros. The defendant denied owing the plaintiffs any monies.

The issue for determination is whether the defendant has proved its counter-claim. I have read the plaintiffs’ plaint dated 16th April, 2014. The claim is based on breach of contract. There is a claim of Kshs.305,000/= being cost of materials bought but not utilized. There is also a breakdown of Kshs.1,876,229 being the demanded special damages. This claim is grounded on the contention that the plaintiffs hired another contractor to complete the project. The plaintiffs do not give a breakdown of the amount of Kshs.9,800,000/=.

The defendant admit that it was paid 85,000/= Euros. Paragraphs 5 and 6 of the plaint gives two different figures as the amount paid to the defendant. Paragraph 5 indicate that the defendant was paid about Kshs.10,000,000/=. Paragraph 6 gives the figure to be Kshs.7,488,000/= about 64,000 Euros. This later figure was paid as at 6th February, 2013 as the villa was to be built within three (3) months.

The defendant did not produce any documents to establish the mode of payment. However, since the amount paid is admitted and the plaintiffs admit paying over 64,000/= Euros, I will take it that the defendant was paid 85,000 Euros.

In the plaintiffs’ defence to the defendant’s suit, the plaintiffs admit that there was verbal contract apart from the written agreement. This supports the defendant’s evidence that the construction of the garage and the swimming pool was agreed orally after the written agreement had been signed.

From the evidence on record, it is established that the parties entered into the agreement. The agreement gave the commencement date of 1st December, 2012 but the completion date is not given. It is also established that the contractual sum was 125,000 Euros. Further, parties entered into an oral agreement whereby a swimming pool and a garage were to be built at a cost of 25,000/= Euros. I do find that the defendant was paid 85,000 euros leaving a balance of 40,000 Euros for the main contract. I also find that the defendant is entitled to the further sum of 25,000 Euros giving a total claim of 65,000 Euros. Since V.A.T is supposed to be paid at source, the claim for V.A.T is not granted. No receipts were produced to show that the defendant paid V.A.T for the amount paid under the contract.

In the end, I do find that the defendant has proved its counterclaim. The plaintiff’s suit is dismissed. The defendant’s counter claim is allowed. The defendant is awarded 65,000 Euros plus costs and interest.

Dated and delivered at Malindi this 16th day of March, 2017.

S.J. CHITEMBWE

JUDGE