[2007] KEHC 2156 (KLR)
The court found that since the parties had entered into a construction agreement and the defendant had stopped the plaintiff from continuing work due to dissatisfaction with workmanship, it was likely that a claim for payment would arise. To avoid prejudice and ensure proper quantification of the plaintiff's work,...
Source-derived case information.
- Citation
- [2007] KEHC 2156 (KLR)
- Parties
- Plaintiff: Mzee Abdalla; Defendant: Osman Faqi Sheikhabu
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 22 of 2007
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Injunction Application
- Outcome
- injunction granted; directions for assessment and quantification issued
- Judges
- DK Maraga
- Legal Topics
- Interlocutory Injunctions, Building Contracts, Assessment of Work, Affidavit Irregularities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mzee Abdalla
Plaintiff
Osman Faqi Sheikhabu
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiff is entitled to an injunction restraining the defendant from engaging another contractor before assessment and quantification of his work.
- 2 Whether the supporting affidavit is fatally defective for lack of endorsement of the drawer.
Ratio Decidendi
The court found that since the parties had entered into a construction agreement and the defendant had stopped the plaintiff from continuing work due to dissatisfaction with workmanship, it was likely that a claim for payment would arise. To avoid prejudice and ensure proper quantification of the plaintiff's work, the court held that an injunction restraining the defendant from engaging another contractor until assessment and quantification was merited. On the issue of the affidavit's validity, the court followed the binding Court of Appeal decision in Housing Finance of Kenya v Attorney General & Another, holding that the lack of endorsement of the drawer was a curable irregularity and...
Court Disposition
injunction granted; directions for assessment and quantification issued
Orders
- The plaintiff's application for injunction is granted.
- Assessment and quantification of the plaintiff's work to be done within 45 days.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA
Civil Suit 22 of 2007
MZEE ABDALLA …………...…………..………….. PLAINTIFF
V E R S U S
OSMAN FAQI SHEIKHABU…………………….DEFENDANT
RULING
By an agreement dated the 1st April 2005 the defendant engaged the Plaintiff to construct for him a house on Plot No. 88/XV/MI Mombasa at a total coast of Sh. 19,800,000/-. In the course of constructing the house a disagreement arose on the workmanship with the defendant describing the plaintiff’s job as shoddy. The plaintiff was therefore stopped from continuing with the construction and asked to leave the premises. Aggrieved by that he has now filed this suit and sought an injunction to restrain the defendant from engaging another contractor to continue with the construction until his work is assessed and quantified. Along with the filing of the suit the plaintiff has filed an application for injunction and sought the same order. This ruling is on that application after an inter-partes hearing.
Counsel for the Plaintiff argues that as the defendant has evinced an intention to engage another contractor it will complicate maters if another contractor embarks on the construction before his work is quantified. He therefore urges that the injunction sought be granted.
Counsel for the defendant strongly opposes the application on two grounds. He argues that the plaintiff has not claimed any amount to require a quantification of his work. He therefore sees this case as an evidence fishing expedition. On the second ground counsel for the plaintiff argues that the affidavit in support of the application is fatally defective for fouling section 35 of the Advocates’ Act in that it does not bear on its face the endorsement of the drawer. In support of this contention he relied on Justice Nyamu’s decision in Disterberger _Vs- Muidnia and Another [2005] 1 EA 48.
In his rejoinder counsel for the plaintiff, citing the decision of a single Judge of the Court of Appeal in Housing Finance of Kenya
–Vs- Attorney General & Another Civil Application No. 189 of 2004, argues that failure to bear the endorsement of its drawer is not fatal to the affidavit in support of the applcaition.
It is not in dispute that the parties entered into the agreement referred to hereinabove. It is also not in dispute that the defendant is not satisfied with the plaintiff’s workmanship and has stopped him from continuing with the construction and asked him to leave the premises. I reckon that at one stage or the other one party is going to claim payment form the other. In the circumstances I think that the plaintiff’s application that his work so far be assessed and quantified before the defendant engages another contractor to complete the construction is merited.
On the validity of the affidavit in support of the application I have read the two decisions cited to me. As there is no allegation that the affidavit has been drawn by an unqualified person, and following the Court of Appeal decision in the Housing Finance case which is binding on me, I hold that failure to bear the endorsement of its drawer is an irregularity as to form which is curable by Order 18 Rule 7 of the Civil Procedure Rules. In the circumstances I grant this application.
That in a way disposes of this suit and there is nothing to go to hearing. I therefore direct that the assessment and quantification of the plaintiff’s work be done within 45 days. I shall mention this case on 12th July 2007 for the parties to tell me if they would like to engage a joint quantity surveyor or how they would like the assessment and quantification to be done.
DATED and delivered this 5th day of July 2007.
D.K. MARAGA
JUDGE