https://new.kenyalaw.org/akn/ke/judgment/keca/2026/926

Mistry Javda Parbat & Company Limited v National Oil Corporation of Kenya (Civil Appeal E031 of 2024) [2026] KECA 926 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KECA 926 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Civil Appeal E031 of 2024 AK Murgor, KI Laibuta & GW Ngenye-Macharia, JJA May 15, 2026 Between Mistry Javda Parbat & Company Limited Appellant and National Oil Corporation of Kenya Respondent (Being an appeal from the Judgment of the High Court of Kenya at Mombasa (Kizito Magare, J.) delivered on 17th July 2023 in High Court Civil Case No. 214 of 2012) Judgment 1.The dispute between Mistry Jadva Parbat & Co. Limited (the appellant or the contractor) and National Oil Corporation of Kenya (the respondent or the employer) is rooted in the contract dated 23rd August 2001 signed between the appellant and the respondent. 2.The appellant filed a suit before the High Court in Mombasa, being Civil Suit No. 214 of 2012 vide a plaint dated 4th December 2012. The appellant’s case was that, on or about 24th August 2001, it entered into a Construction Works Agreement (the Agreement or the contract) with the respondent for the construction of a truck loading facility on Plot Number 209/12298- Industrial Area Nairobi (the Works). 3.It was a term of the contract that, within 4 weeks, and upon written application by the contractor at intervals of not less than four (4) weeks, the Quantity Surveyor would assess and value the contractor’s claim and the Architect would issue within 14 days a certificate stating the amount due to the contractor from the employer; and that, upon the contractor presenting such certificate to the employer, it be entitled to payment thereof within 30 days of the presentation. 4.It was the appellant’s case that it presented to the respondent the final certificate dated 14th August 2006 stating that the amount due in respect of the works was Kshs.68,637,211.55 inclusive of VAT at the then prevailing rate of 18%; and that the respondent settled part of the amount due to the tune of Kshs.48,796,299.12. 5.The appellant pleaded that the final certificate for the sum of Kshs.19,840,912.20 remained owing, which amount it claimed against the respondent together with interest pursuant to Clause 30 of the Agreement; and that, despite several letters written to the respondent through its counsel and resting with a meeting held on 29th September 2009, the respondent only agreed to pay Kshs.8,484,435.69 as the amount due, but which the appellant disputed as being the only amount owing. The appellant thus prayed for judgement against the respondent for:a.Payment of the said sum of Kshs.19,840,912.20.b.Interest thereon at the rate of 18% until payment in full.c.Costs incidental to the suit.d.Interest on (c) above at court rates from the date of filing suit until payment thereof in full.e.Any further or other relief the court deemed just to grant. 6.In a statement of defence dated 15th February 2013, the respondent denied that it failed to comply with the terms of the Agreement, and more specifically that it owes the appellant the sum claimed, namely Kshs.19,840,912.20. The respondent averred that it was a term of the contract that the contractual sum was not to be adjusted or altered unless it approved it; that, even upon variation by the Architect or subsequent sanction, the terms of the contract were not to be presumed to have been altered unless by prior approval by the respondent; and that, in this instance, no approval was given. 7.The respondent denied that it paid part of the contractual sum as alleged by the appellant. Instead, the respondent averred that the contract provided that the Architect shall, on the advice of the respondent, instruct on the contract sum to be adjusted accordingly; and that the appellant failed to provide documentary evidence for approval of extension of time for 22 weeks as required in the Agreement; that, throughout the negotiation period, the appellant had the opportunity to notify it of the extension of time in writing, but that it failed to do so. The respondent blamed the appellant for having defaulted in fulfilling its part of the bargain and for going against the contractual terms. 8.The respondent further averred that the appellant’s suit was incompetent, misconceived and an abuse of the court process; and thus prayed that the same be dismissed with costs. 9.At the trial, the appellant called two witnesses. PW1, Paresh Shivji Varsani, the appellant’s director, adopted his undated witness statement. His statement basically restated the background to the dispute as outlined in the plaint. He produced a List of Documents dated 4th December 2012, which contained, inter alia, the Construction Works Agreement; Architect Final Certificate of Completion dated 14th August 2006 for Kshs.19,840,912.43; Forwarding letters of the Certificate of Completion to the respondent dated 14th August 2006 and 15th August 2006 respectively; and Architect’s Certificate of Practical Completion dated 8th January 2004. PW1 also produced a Supplementary List of Documents dated 22nd October 2018, which included: Final Account prepared by the Quantity Surveyor, Bunei & Associates; The Priced Bills of Quantity prepared by Bunei & Associates; Letter dated 23rd August 2001 from the respondent to the appellant; and a Letter dated 8th September 2003 from Bunei & Associates. We shall make reference to the evidential documents if need be. 10.In cross examination, PW1 stated that the tender sum was capped at Kshs.55,431,714.90, but that the sum was revised to Kshs.41,668,380; that other works worth Kshs.13,763,334 were done by other persons; that they requested for extension of time to complete the works, and the architect granted the extension, but that he did not have the approval or ratification of those instructions by the respondent; and that the value of works done and material supplied was Kshs.68,637,211.55, which took into account the works done by others. 11.The record shows that PW1 was recalled for re-examination during which time he stated that the contract sum was Ksh.55,431,714.90, and that this is the amount for which he offered services. 12.PW2, Stephen Kibui Kamau (whose name appear in the written statement as Stephen Ndibui Kamau), a Quantity Surveyor, adopted his witness statement dated 27th October 2018. He testified that he was instructed by the appellant to look at all the documents in respect of the works done and provide a professional opinion on the evaluation and claim; and that, upon his analysis of the documents, there was no reason to doubt the Final Account issued by the Quantity Surveyor and the subsequent Final Certificate issue by the Architect. 13.In cross-examination, PW2 stated that he did not visit the site where the scope of assignment was carried out, or take any measurements of the works done; that all works had to be carried with the approval of the Quantity Surveyor, the Architect and the respondent; and that any extension was to be made by the three for the approvals to be valid. 14.On behalf of the respondents, only one witness testified, namely DW1, Abel Mokaya, the respondent’s improvement Engineer. He adopted his witness statement dated 17th July 2019 and produced a List of Documents dated 8th May 2014, comprising: a copy of the Agreement between both parties; a bundle of letters from the respondent to the appellant; and a bundle of letters from the appellant to the respondent as well as a Supplementary List of Documents dated 31st January 2019, which basically comprised: correspondence in writing from the appellant; Final Account details of July 2003; and Final Account for Nairobi Fuel Truck Loading Facility Summary of July 2003. We hasten to add that we shall equally make reference to any of the documents when and if need arises. 15.DW1 confirmed that, indeed, the respondent contracted the appellant to carry out the Works; that the costs of the Works was Kshs.55,431,714.90, which was payable on the actual quantities executed; that it was a condition of the contract that any change in the fixed unit rates would be discussed and mutually agreed upon in writing between the parties; and that the contract sum would not be adjusted or altered unless within the express provisions of the contract. DW1 denied that the appellant sought approvals from it for the alleged extension or variation of the contract. 16.DW1 testified that the respondent made payments amounting to Kshs.48,796,299.12, which the appellant acknowledged; that, when the respondent received the final certificate of payment of Kshs.68,637,211.60, it requested for a meeting in which it requested the appellant to produce documents evidencing the sum claimed; and that the appellant claimed that part of the money was allegedly owed to a company by the name Petals and Décor, which was not party to the Agreement, and that, even if it was sub- contracted by the appellant, there was no documentation for such an engagement. DW1 emphasised that there was no express agreement between the parties on the change in the unit price or extension of the contractual period to an additional 22 weeks; and that the appellant’s demand for the sum claimed was exaggerated and not supported by any documentation. He urged that the suit be dismissed with costs. 17.In a judgment dated 17th July 2023, the learned Judge (Magare, J.) held that there was no dispute that Kshs.48,840,299.12 was paid to the appellant; that, although the appellant pleaded the contract sum of Kshs.68,637,211.56 but stated in evidence that the contract sum was Kshs.55,431,714.90, the appellant was ipso facto entitled to a sum of Kshs.41,668,380.90 as the payable contract sum since there was admission that Kshs.13,763,334 was an amount due to work done by other people; that, ‘adding the paid amount and the contract sum to the previous contractors, the total sum comes to Kshs.62,559,633.13 out of the contract sum of Kshs.55,431,714.90, hence there was an overpayment of Kshs.7,127,918.22’; and that the appellant therefore pleaded the claim of Kshs.19,840,912 without proof of how the amount arose. 18.It was also the trial court’s further finding that the appellant pleaded the issue of extension of the contract, which it did not prove. 19.The learned Judge dismissed the evidence of PW2 on the grounds that, being an Engineer, he failed to demonstrate his expertise in the field by producing relevant qualification certificates, and that he also failed to visit the construction site; and that, for these reasons, his evidence was considered as hearsay evidence which could not assist the court in reaching an objective decision. 20.It was also the finding of the learned Judge that the sum of Kshs.48,796,299.13 was not specifically pleaded as required by law and, hence, it would be difficult to know which works were certified as done and paid for; and that it was also not shown how the sum of Kshs.68,637,211.60 arose and its relationship with the figure of Kshs.55,431,715.49. The appellant’s suit was accordingly dismissed with costs, which the court assessed at Kshs.440,000. 21.Aggrieved, and by a Memorandum of Appeal dated 28th February 2024, the appellant filed the instant appeal premised on a whopping 22 rather repetitive and argumentative grounds of appeal against the spirit and letter of Rule 88(1) of this Court’s Rules, 2022. Needless to say is that Rule 88(1) demands that a Memorandum of Appeal should be set forth under distinct heads, concisely, without argument or narrative, the grounds of objection to the decision appealed against. Suffice it to note that repetitive grounds of appeal will do nothing to enhance the meritorious prospects of the appeal. They may instead fatigue the opposite side and waste much deserved judicial time. And we do not say this in vain. In Nasra Ibrahim Ibren vs. IEBC & 2 Others (2018) KECA 500 (KLR), this Court cautioned as follows:“We must reiterate that counsel must strive to make drafting of grounds of appeal an art, not an exercise in verbosity, repetition, or empty rhetoric. As this Court noted in Abdi Ali Dere v. Firoz Hussein Tundal & 2 Others [2013] eKLR, a surfeit of prolixious grounds of appeal do not in anyway enhance the chances of success of an appeal. If they achieve anything, it is only to obfuscate the real issues in dispute, vex and irritate the opposite parties, waste valuable judicial time, and increase costs.” 22.It was reiterated by this Court vs. Felix Kipchoge Limo Lagat (2020) KECA 224 (KLR) that:“We are yet again confronted with an appeal founded on a memorandum of appeal that is drawn in total disregard of rule 86 of the Court of Appeal Rules. That rule demands that a memorandum of appeal must set forth concisely, without argument or narrative, the grounds upon which a judgment is impugned. What we have before us are some 18 grounds of appeal that lack focus and are repetitively tedious. It is certainly not edifying for counsel to present two dozen grounds of appeal, and end up arguing only two or three issues, on the myth that he has condensed the grounds of appeal.” 23.Having sounded the foregoing warning and a word of advice that it is not the multiplicity of grounds that lend merit to a claim on appeal, and mindful of the cardinal obligation under rule 88(1), and after considering the core issues in this appeal, we have isolated the following five (5) relevant grounds of appeal, that the learned Judge erred in fact and in law by:i.disregarding the respondent’s own admission that the only money payable to the appellant was Kshs.8,484,435.68 and not the sum of Kshs.19,840, 912.20 as pleaded by the appellant thereby causing miscarriage of justice on the part of the appellant;ii.misconstruing facts of the case and proceeding as if the appellant’s claim was for special damages while in fact the claim was a construction contract dispute revolving around the determination on the question of payment of the final certificate that the respondent failed to pay;iii.holding that the appellant neither pleaded for extension of time nor pleaded the specific certificates that had not been paid thereby arriving at an injurious decision against the appellant;iv.failing to apply his judicial mind thereby arriving at a wrong decision which violated the appellant’s right to a fair trial; andv.descending into the arena of a Taxing Master by dismissing the appellant’s suit and awarding the respondent costs of Kshs.440,000 thereby denying the appellant right to file a reference on the costs awarded to the respondent before the Judge as the law provides. 24.We heard this appeal on 18th March 2025. Learned counsel Mr. Muthuri Kinyua was present for the appellant while learned counsel Mr. Samuel Keengwe represented the respondent. Both parties filed their respective submissions which we have considered as hereunder. 25.The appellant in its submissions dated 20th January 2025 submitted that the letter dated 25th May 2007 from the respondent urged it not to take action so as to allow it to audit the claim; that, by a further letter dated 5th February 2008, the respondent acknowledged the debt of Kshs.8,892,347.05 inclusive of VAT, of the works carried out; that these letters proved the appellant’s case; and that the learned Judge erred in holding that they (the letters) did not provide sufficient proof of its case to the required standard. 26.It was submitted that the Judge mischaracterized the appellant’s claim by not looking at the final accounts and priced Bill of Quantity prepared by the appellant’s Quantity Surveyor, or the various extensions of time sanctioned by the respondent’s Architect. The appellant argued that there was no need for it to have pleaded all the certificates and show which ones were paid, and whether such payments included the extensions as the respondent had already acknowledged payments in respect to the other certificates; that it could not plead certificates that had already been settled by the respondent as they were not disputed; that the finding that it had been paid Kshs.48,796,299.13 was erroneous as it was not pleaded; and that these were figures which the Judge imported to his findings without inviting the parties to answer thereto. 27.The appellant submitted that it discharged its burden of proof under Section 107(1) of the Evidence Act through the final certificate which certified the final amount payable to it; that, under Clause 30 of the Agreement, the employer did not have to approve the final certificate for purposes of settlement, but that it was enough that it was signed by the appellant and all the consultants; that the respondent through its Quantity Surveyor undertook the valuation of the work done and prepared bills of quantities, including all sums payable for all material purchased; that the respondent did not challenge the final certificate; and that, as such, it had the duty to settle all certificates prepared and issued by its professional agents. 28.The appellant also contended that it applied for, and was issued with, extensions of time by the respondent through its Architect; that the respondent’s letter dated 7th April 2008 made reference to site instructions and letters from the Architect and one S. R. Manga, which correspondence was shared and copied to the respondent; that, as such, the respondent was estopped from denying that its Architect issued site instructions to the appellant; and that the letters dated 2nd December 2009 and 30th May 2002 from the appellant to the respondent made reference to extension of time, specifically that they confirmed the extension of time; and that, accordingly, it was erroneous of the learned Judge to find that the appellant did not carry out additional works, or that the respondent was not aware or did not concede to the additional works. 29.By failing to consider the evidence presented as a whole, the appellant submitted that the Judge openly showed bias against the appellant, consequent to which the dispute was not fairly adjudicated upon. We were thus urged to allow the appeal as prayed. 30.The respondent, on its part, relied on submissions dated 21st February 2025. It contended that Clause 22 of the Agreement required that, in the event that the appellant failed to complete the works by the date of practical completion or within the extended period under Clause 23, it (the appellant) was required to pay the respondent a sum calculated at the rate stated in the appendix of the Agreement as liquidated and ascertained damages; that the appellant did not adduce evidence to support the alleged approved extension of works by 22 weeks; that, hence, it was the appellant who breached the contract, and that it (the respondent or the appellant?) had not approached the Court with unclean hands. Reference was made to the decision of this Court in Naburi vs. County Assembly Service Board, Busia County & Another (2024) KECA 210 (KLR) where the Court dismissed the appellant’s case for non-disclosure of material information upon finding that he had approached the Court with unclean hands. 31.As to the contention that the respondent owed the appellant Kshs.8,484,435.68, it was submitted that there was no such admission in its letter; that the respondent recommended payment of the amount only if all the documents, to wit, copies of site instructions, letters from consultants, approvals from the respondent and other requests made in relation to final accounts as requested in the minutes of the site meeting held on 29th September 2009 were to be availed, but which the appellant failed to submit; and that, for this reason, we ought to uphold the trial court’s finding that extension of time and site instructions were unsupported by written approvals from it (the respondent) as stipulated by the Agreement. 32.The respondent referred to Clauses 15(1), 30 (4) as read with Clause 30(6) of the Agreement, which required the Architect to issue a final certificate of completion upon approval by the respondent. In this regard, it was submitted that the final accounts prepared by the Quantity Surveyors outlined the various costs and expenses incurred by the appellant, but did not demonstrate or proof that the respondent owed the appellant the alleged sum of Kshs.19,842,912.20; that the appellant did not produce the interim certificate of completion amounting to Kshs.48,976,299.12, which was admitted as having been paid by the respondent to assist the trial court determine whether the appellant was owed Kshs.7,127,918.23, or that the sum of Kshs.7,127,918.23 was an overpayment beyond the contractual sum of Kshs.41,668,375.75. The respondent placed reliance on the decisions of this Court in Charles Kipkoech Leting vs. Express (K) Ltd & Another (2018) KECA 187 (KLR); Kenya Pipeline Company Ltd vs. Ndegwa & Another (2023) KECA 226 (KLR); Douglas Kalafa Ombeva vs. David Ngama (2013) KECA 538 (KLR); and Capital Fish Kenya Limited vs The Kenya Power & Lighting Company Limited (2016) KECA 56 (KLR) for the proposition that special damages should not only be pleaded but be specifically proved. 33.The respondent posited that, under Clause 15 of the Agreement, the appellant failed to attach written approval to the final certificate of completion for it to be a conclusive document for the purpose of billing and payment; that, since it did not give written approval to the lead Consultant to issue a certificate of completion, it followed that the Bill of Quantities produced could never be considered as conclusive evidence for any payment to the appellant; that, for the final certificate of completion to have been considered for final payment, the lead consultant, itself, and the appellant had to approve the works done; and that the consultant’s certificate of completion which the appellant wanted to rely on as binding between the parties was not a valid certificate of completion. 34.The respondent further posited that the learned Judge was not biased in the manner in which he considered the appellant’s evidence and, in particular, the testimony of PW2; that it is factual that PW2 did not tender documentary evidence of his academic testimonials to prove that he was a registered Engineer as claimed, hence the trial court rightfully discredited his evidence; that furthermore, PW1 had difficulties in articulating the contractual sums allegedly due to the appellant as indicated in the final bill of quantities, and that he even failed to produce the approvals from the respondent for extension of time, site instructions and estimates of charges made, which were the basis of the appellant’s claim against it; that, in contrast, the respondent’s sole witness did not testify as an expert, and, as such, he was not required to prove his expertise; and that, even though DW1 introduced himself as an Engineer, he testified as an employee of the respondent. This Court’s decision of Kagina vs. Kagina & 2 Others (2021) KECA 242 (KLR) was relied upon for the proposition that, an expert witness is obligated to show proof and extent of his expertise, a test which the appellant’s witness (PW2) failed to satisfy. 35.As to whether the trial court’s judgement was based on errors, it was submitted that the errors in the Judgment were more of clerical or arithmetic in nature, which could be corrected under the slip rule pursuant to Section 99 of the Civil Procedure Act. 36.As to the award of costs by the learned Judge, it was contended that the Judge was guided by Section 27 of the Civil Procedure Act to the effect that costs follow the event; that, in any event, the party that ought to be aggrieved by the amount of costs awarded is the respondent; that this is because the claim was of liquidated sum - Kshs.19,840,912.20, which took more than 7 years to dispose of; that, ordinarily, such a claim would attract higher costs; and that the costs of Kshs.440,000 were no doubt too little in the circumstances and ought not to have formed a basis for appeal. 37.In conclusion, and for the foregoing submissions, the appellant prayed that the appeal be dismissed with costs, and that the decision of the trial court be upheld. 38.We have considered the record of appeal, the rival written submissions and the law. This being a first appeal from the decision of a court of first instance, is by way of a retrial. We are obliged, as we already have, to evaluate the evidence on record and arrive at our own conclusions. In so doing, we must take to mind that we neither saw nor heard the witnesses testify for which we should give due regard. 39.This Court in Peters vs. Sunday Post Ltd [1958] EA 424 posited that:“It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution. It is not enough that the appellate court might itself have come to a different conclusion.” 40.In Paramount Bank Limited vs First National Bank Limited & 2 others (2023) KECA 1424 (KLR), this Court held:“A first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. A first Appellate Court is the final court of fact ordinarily and therefore a litigant is entitled to a full, fair, and independent consideration of the evidence at the appellate stage. Anything less is unjust. The first appeal has to be decided on facts as well as on law. While considering the scope of section 78 of the Civil Procedure Act Cap 22, a first Appellate Court can appreciate the entire evidence and come to a different conclusion.” 41.Furthermore, we must appreciate that, while undertaking our said obligation as was held in Alfarus Muli vs. Lucy M Lavuta & Another (1997) 302 KLR, we will interfere with the findings of the first trial court:“only if it is shown that there was absolutely no evidence or that the evidence that was there could not possibly support such a finding…Even if a Judge does not give his reasons for his finding the appellate Court can find the same in the evidence.” 42.We have considered the record of appeal, the submissions by both parties and the law. The sole issue that falls for our determination is whether the appellant was entitled to the claim of Kshs.19,840,912.20 due from the respondent. 43.The appellant’s claim in respect of the completed works was that the contractual sum amounted to Kshs.68,637,211.55. For the avoidance of doubt, the works were done and, therefore, what remained was payment for the works done. The appellant acknowledged in its pleadings and also through PW1 that the respondent paid it Kshs.48,796,299.12. The alleged outstanding amount of Kshs.19,840,912.20 was what the appellant was demanding from the respondent. The respondent took the position that it overpaid the appellant by Kshs.8,484,435.68 and that, therefore, there was nothing outstanding or owing to the appellant. 44.The common ground is that there was a contract entered between the appellant and the respondent dated 23rd August 2001 for the construction of a proposed truck loading facility. It is critical that we revisit the terms of the contract as per the Agreement. Clause 5 of the Agreement provided that the consideration price which the respondent would pay the appellant would be a cumulative sum of Kshs.41,668,380.75. 45.Clause 21(c) provided for the time within which the works were to be completed as follows:“On the site hand over date stated in the appendix to these conditions possession of the site shall be given to the Contractor who shall thereupon begin the works immediately after site hand-over and regularly and diligently proceed with the same and complete the works within a period of twenty four (24) weeks from the date for site handover of the main contract subject nevertheless to the provisions for extension of time contained in clause 23 of these conditions.” 46.The appendix to the contract indicated that the date of the site hand-over was 24th August 2001, and the date for practical completion was anticipated to be on 11th February 2002. There is silence on whether the works were completed within the stipulated time. However, we take cue from the letter dated 30th May 2002 from Shelter Consult, the Architects who, upon reviewing the appellant’s application for extension of time, granted the appellant an additional 4 weeks to complete the works within 20 weeks. 47.The Architect’s Certificate of Practical Completion was issued on 8th January 2004 by which the Architect certified that all the works had been completed satisfactorily, and the contract sum was indicated to be Kshs.55,431,714.90. As to the practical steps which the appellant was required to take in the event of delay, Clauses 23 and 23 (f) provided:“Upon it becoming reasonably apparent that the progress of the works is delayed, the Contractor shall forthwith give written notice of the cause of the delay to the Employer and if upon consultation with the Architect it is established that the completion of works is likely to be or has been delayed beyond the date stated in Clause 21 of these conditions or beyond extended time previously fixed under this Clause…the Employer acting on the advise of the Architect shall so soon as the length of the delay beyond the date or time aforesaid has been estimated make in writing a fair and reasonable extension of time for completion of the works…” 48.The strict mandatory requirement was that, for every extension of time for the works to be done, the appellant was to seek approval from the respondent upon consultation with the Architect. The letter dated 30th May 2002 granted extension of works for a further 4 weeks. This meant that the works were to be done/completed on or before 30th June 2002. However, the Architect’s Certificate of Completion indicated that the works were done on 8th January 2004, which is a period of almost 2 years beyond the approved extended time. It therefore goes without saying that the appellant needed further extension of time beyond the stipulated period stated in the letter dated 30th May 2002 to complete the works. At the hearing of this appeal, we enquired from Mr. Muthuri, learned counsel for the appellant if there were further extensions made after this date. Counsel could not lead us to any part of the record showing other applications for extension that were made post the approval 49.Clause 30 made provision on certificates and payments. Clause 30(1) (a) provided that:“Upon written application by the contractor at intervals of not less than 4 weeks, the Quantity Surveyor shall assess and value the contractor’s claim and the Architect shall issue within 15 days a certificate stating the amount due to the Contractor from the Employer, and the Contractor shall, on presenting any such certificate to the Employer be entitled to payment thereof within 30 days from presentation” 50.We have appraised ourselves with the record before us. We appreciate that there were several Bills of Quantities prepared by the Quantity Surveyor indicating the amounts payable. We hasten to add that Clause 30(1) (a) (ibid) has to be read in tandem with Clauses 5 and 6. 51.Clause 5 of the contract placed the contract sum at Kshs.41,668,380.75, but any such other amounts to be paid were to be based on the actual quantities executed and at the unit rates as per the Bill of Quantities accepted by the employer. It read as follows:“In consideration of the carrying out and completion of the works and maintenance of the permanent work the Employer shall pay the Contractor the cumulative sum of Kshs.41,668,380.75 (Say Kenya Shillings Forty One Million Six Hundred and Sixty Eight Thousand Three Hundred and Eight Cents Seventy Five) or such other sum as shall become payable hereunder at the times and manner specified in the contract, provided however that the amount payable shall be based on actual quantities executed and at the unit rates as per Bills of Quantities accepted by the employer.” 52.Clause 6 required that any changes to the unit price as per the Bill of Quantities be mutually agreed by the contractor and the employer. It provided in mandatory terms as follows:“The parties agree that the Quantities shown in Bill of Quantities are approximate and may vary to any extent and any change will have to be discussed and mutually agreed in writing between the Contractor and Employer…The parties agree and confirm that the Unit Price as per the Bill of Quantities shall remain firm and fixed during the contract period however that any change in unit rates occasioned purely by statutory amendments and only in cases where the variance is by more than 5% of the rate at the time of tender award, shall be discussed between the Contractor and the Employer. Any agreement to vary the rates shall be indicated in a written memorandum countersigned by both parties for the same to be valid and binding to the parties. The parties further agree that the provisions of this clause shall take precedence in case of inconsistency (ies) herein.” (emphasis ours) 53.According to the appellant, the particulars of the final certificate of completion dated 14th August 2006 by the Architect was that the value of the works done was Kshs.68, 637,211.55; and that the previous amounts paid totalled Kshs.48,796,299.12 leaving a balance of Kshs.19,840,912.43, which is what was disputed by the respondent. 54.There was no evidence adduced by the appellant to demonstrate that there was mutual consensus by the parties in accord with Clause 6 to vary the contract sum from Kshs.41,668,380.75 to Kshs.68,637,211.55 as presented by the Architect. Since there was no dispute that Kshs.48,796,299.12 was paid which in any case was more than the contractual sum by Kshs.7,127,918.37 (when the contract sum is considered against the amount paid), we cannot fault the learned Judge for finding and holding so. The appellant did not succinctly explain how the Architect revised the contract price to Kshs.68, 637,211.55 so as to make an outstanding claim of Kshs.19,840,912.43. 55.It is now settled law that courts cannot rewrite a contract between parties, and that the parties are bound by the term of their contract unless otherwise proved. See: National Bank of Kenya Ltd vs. Pipeplastic Samkolit (K) Ltd & another (2001) KECA 362 (KLR). 56.Further, this Court in Pius Kimaiyo Langat vs. Co- operative Bank of Kenya Ltd [2017] KECA 152 (KLR) held:“We are alive to the hallowed legal maxim that it is not the business of courts to rewrite contracts between parties. They are bound by the terms of their contracts, unless coercion, fraud or undue influence are pleaded and proved.” 57.In the same vein, in National Water Conservation vs. Jayne Kanini Mwanza, Civil Appeal No. 178 of 2014 (UR), this Court stated as follows:“The general principle, as we understand it, is that a fixed-term contract will terminate on the sunset date unless it is extended in terms stated in the contract. A court cannot rewrite the terms of a contract freely entered into between the parties. Once there is a written contract, the court will seek to give meaning to such contract giving ordinary meaning to its terms in determining any issue that may arise.” 58.In the case of Charter Reinsurance Co. Limited vs. Fagan [1997] AC 313, the UK Court of Appeal had this to say:“… the court should remind itself that the task is to discover what the parties meant from what they have said, and that to force upon the words a meaning which they cannot fairly bear is to substitute for the bargain actually made one which the court believes could better have been made. This is an illegitimate role for the court.” 59.It is noteworthy that PW1 testified that some works worth Kshs.13,763,334 was done by other service providers. It then beats logic how the respondent could still owe the appellant when, on admission by the appellant, some other entities had chipped in their services to the tune of Kshs.13,763,334. The appellant did not, as submitted by the respondent, prove its case on a balance of probabilities pursuant to Section 107(1) and (2) of the Evidence Act which state that:1.Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.2.When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 60.We further observe, and with tremendous respect to the appellant, that no documentary evidence was produced to support the claim of the alleged unpaid sum of Kshs.19,840,912.43. Our foregoing analysis leads to the fact that it is the respondent who in fact overpaid the appellant by Kshs.7,127,918.37. 61.As to the submission by the appellant that the learned Judge erred in assessing and awarding costs, we agree with the respondent. As the successful party, the respondent had the right to file a bill of costs for taxation by the Taxing Master. The complaint of the costs being awarded without it presenting its bill of costs for assessment disadvantaged it more than it would the appellant. Indeed, a paltry amount was awarded to it (the appellant) in view of the quantum of claim in issue, yet it is not complaining. The argument presented on this ground of appeal therefore fails, and we dismiss it accordingly. 62.In conclusion, and for the foregoing reasons, we reach the inescapable conclusion that the appeal is bereft of merit and is hereby dismissed with costs to the respondent. Accordingly, we uphold the Judgment of the High Court at Mombasa delivered by Magare, J. on 17th July 2023.Orders accordingly. DATED AND DELIVERED AT MOMBASA THIS 15TH DAY OF MAY, 2026.A. K. MURGOR.................................JUDGE OF APPEALDR. K. I. LAIBUTA CArb, FCIArb..................................JUDGE OF APPEALG. W. NGENYE-MACHARIA.................................JUDGE OF APPEALI certify that this is the true copy of the originalSigned Deputy Registrar