https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8165

**Republic of Kenya** **In the High Court of Kenya at Nairobi** **Milimani Law Courts** **Civil Appellate Division** **Civil Appeal No. 1096 of 2025** **Nicholas Ochieng………………………………………………..……………..Appellant** **vs.** **Customs Aluminium East Africa Limited…………………………………Respondent** ***(Being an Appeal from the Judgment and Decree of Hon. A.O. Casmir (RM/Adjudicator) delivered on 9 October 2025 in Dagoretti SCCCOMM No. E270 of 2025)*** **Judgement** 1. This appeal arises from the judgement and decree of the Small Claims Court of 9 October 2025. In the claim before the trial court, the Appellant sought for judgement for the sum of Kshs. 1,000,000.00 together with interest and costs on account of breach of a contract for the installation of doors and windows. The Respondent denied the Appellant’s claim and filed a counter-claim seeking a sum of Kshs. 679,565.99 on account of non-payment of the balance required for completion of the pending works. The trial court found in favour of the Respondent and awarded the sum of Kshs. 679,565.99, costs assessed at the sum of Kshs. 40,000.00 and interest. Dissatisfied with the trial court’s decision, the Appellant has preferred this appeal which was canvassed by way of written submissions. **The Appellant’s Case** 1. The Appellant advanced 10 grounds of appeal in his memorandum of appeal dated 28 October 2025 as follows: 1. *The learned magistrate lacked jurisdiction to determine the claim having failed to render judgement within sixty (60) as is required under Section 34(1) and (2) of the Small Claims Court Act;* 2. *The learned magistrate erred in law by admitting and/or allowing the Respondent’s incompetent counterclaim dated 2 July 2025 despite the Appellant’s objection and lack of supporting evidence to the counterclaim;* 3. *The learned magistrate erred in law by failing to consider the principles of contract law, particularly that parties are bound by the terms of contract thereby arriving at an erroneous decision;* 4. *The learned magistrate erred in law by misinterpreting the terms of the contract between the parties thereby arriving at an erroneous decision;* 5. *The learned magistrate erred in law by failing to consider the observations of the joint site visit conducted on 12 September 2025;* 6. *The learned magistrate erred in law by failing to identify the dispute between the parties thereby arriving at a wrong decision;* 7. *The learned magistrate erred in law by failing to consider and appreciate the evidence tendered by the Appellant;* 8. *The learned magistrate erred in law by failing to consider and appreciate that the Appellant’s expert evidence was not controverted;* 9. *The learned magistrate erred in law by failing to appreciate and/or analyse the evidence adduced by the Appellant thereby arriving at a wrong decision;* 10. *The learned magistrate erred in law by failing to consider the Appellant’s submissions and authorities i.e. Eastern Produce Kenya Limited v. Rongai Workshop & Transporters Limited & another [2024] KECA 747 (KLR);* 11. *The learned magistrate erred in law by failing to appreciate the principles of evidentiary burden, thereby arriving at a wrong decision;* 12. *The learned magistrate erred in law in making judgement against the weight of evidence.* 2. In support of the grounds of appeal, the Appellant argues that the trial court lacked jurisdiction to determine the claim upon lapse of sixty days period within which a claim should be determined under Section 34(1) of the Small Claims Act. The Appellant avers that the claim before the trial court was expected to have been heard and determined by 26 July 2025 but instead judgement was rendered on 9 October 2025, 135 days after the case was filed. In urging this court to find that the trial court did not have jurisdiction, the Appellant relies on the case of ***Mwasya v. Githinji******[2025] KEHC 8295 (KLR)****.* 3. The Appellant also submits that the trial court erred in law by admitting and/or allowing the Respondent’s incompetent counterclaim dated 2 July 2025. In support of this argument, the Appellant submits that Section 25 of the Small Claims Act provides that a response to statement of claim with a counterclaim should be filed within 15 days of service. It is averred that the counterclaim was served 36 days after. The Appellant further submits that the counterclaim was not accompanied by a verifying affidavit, an omission which he argues was fatal to the counterclaim. The Appellant further impeaches the counterclaim on the ground that the same was filed without the requisite authority and/or resolution from the board. 4. The Appellant also contests the finding by the trial court that the counterclaim was undefended. In this regard the Appellant argues that the failure to consider the response to the counterclaim greatly prejudiced the Appellant’s case, his right to be heard under Article 50(2) of the Constitution and offended rules of natural justice. The Appellant further contends that the trial court allowed the counterclaim and awarded Kshs. 679,565.00 without any evidence. 5. The Appellant further avers that the trial court erred in law in finding that the contract did not have any timelines. It is contended that the timelines were neither disputed in the pleadings nor was there tangible evidence presented to dispute the 5-week timeline as agreed by the parties and as captured in the WhatsApp messages and email correspondence. The Appellant further contends that the delay was a gross breach and the same had to be separated from the issue of defects which could not be ascertained until the building was commissioned. It is the Appellant’s case that the trial court failed to consider that the inordinate delay by the Respondent was a significant breach of the contract and that the Respondent failed to adduce evidence to show that the Appellant requested that materials be set aside or that there were shipping issues as alleged. 6. Additionally, the Appellant contends that the trial court erred by finding that the contract was a continuing relationship despite having been a breach of the contract by the Respondent as demonstrated by the exchange of demand letters. It is the Appellant’s case that he no longer wishes to proceed with the Respondent and the trial court erred in forcing the parties to remain in such a contractual situation. 7. The Appellant also takes issue with the joint site visit and argues that the trial court failed to consider the observations of the joint site visit conducted on 12 September 2025 and render a report. The Appellant submits that a site visit is a useful mechanism to enable a court to clarify the evidence and to enable the court to form impressions or findings. However, the Appellant argues that despite conducting a site visit on 12 September 2025, the trial court did not tender a report. It is his case that the trial court was under an obligation to share the report with the parties so that they could file their observations. 8. The Appellant further contends that the trial court failed to consider his expert witness. It is his case that the expert evidence was not controverted to the extent that an assessment had been done which found that Kshs. 1,340,022.00 was due to the Appellant. The Appellant submits that the expert evidence was not considered at any given point. Additionally, the Appellant contends that the trial court erroneously found that the claim would only be ripe upon the lapse of the snagging period without evidence of any expert to that effect. 9. Finally, the Appellant avers that the trial court erred in failing to consider his submissions and authorities. Specifically, the Appellant contends that the trial court failed to consider the case of ***Eastern Produce Kenya Limited v Rongai Workshop & Transporters Limited & another [2024] KECA 747 (KLR)*** which authority was relied upon to the effect that the Respondent had breached the contract by failing to perform its obligations to the satisfaction of the Appellant and hence was liable. **The Respondent’s Case** 1. In opposition to the Appeal, the Respondent filed submissions dated 7 April 2026. The Respondent identifies five issues for resolution as follows: 1. *Whether the learned magistrate lacked jurisdiction to determine the claim having failed to render the judgement within sixty (60) days;* 2. *Whether the Respondent’s counter-claim is merited;* 3. *Whether the Appellant has proven grounds 3,4,5,5 and 10 as set out in the memorandum of appeal;* 4. *Whether the Appellant has proven grounds 7,8,9,11 and 12 as set out in the memorandum of appeal;* 5. *Who bears the cost of the suit.* 2. On the question of jurisdiction, the Respondent submits that the Appellant having subjected himself to the jurisdiction of the trial court cannot turn around and contest such jurisdiction on appeal. The Respondent argues that it was upon the Appellant to withdraw the suit upon realization that the 60 days had lapsed and re-file the matter or in the alternative he would have filed an application before the High Court seeking enlargement of time. instead, the Respondent argues, the Appellant decided to take his chances expecting a favourable outcome in the absence of which he now challenges jurisdiction. 3. The Respondent submits that the Appellant acquiesced to the determination of the claim outside the sixty days by requesting for a site visit a day before the 60 days lapsed on 1 August 2025. It is the Respondent’s further argument that the Appellant’s filing of voluminous documents and request for a site visit despite being a small claim which is supposed to be straight forward and non-complex partly contributed to the delay in the determination of the matter and therefore the Appellant should be estopped from appeal on the basis of non-compliance with Section 34(1) of the Small Claims Act. 4. In any case, the Respondent avers, the issue of the jurisdiction of the Small Claims Court upon the lapse of 60 days is a matter which has received varied determinations by the High Court and this court is not bound by any of the determinations but should instead apply its mind to the circumstances of the case before it and be guided by Article 159(2)(d) of the Constitution. The Respondent further urges the court to be persuaded by the decisions of the High Court that have taken a liberal approach to interpreting Section 34(1) to wit: ***Maghanga v Alias [2025] KEHC 19207 (KLR), Biosystems Consultants v. Nyali Links Arcade (Civil Appeal No. E185 of 2023), Wekesa v. Karumbu [2024]KEHC 8283 (KLR), Good Living Properties v. Pearl Garden Management Limited [2024] KEHC 4548 (KLR)*** *and* ***Henrie & another v. Maina [2025] KEHC 2107.*** 5. In the Respondent’s view, a purposive interpretation of the Small Claims Act should give rise to the intention of the statute being the facilitation of expeditious disposal of disputes while at the same time respecting the right to be heard. Consequently, the Respondent argues, balancing the two may result, at times, to overshooting the 60 days. The Respondent, therefore, emphatically argues that the 60 days were aspirational and should be seen as such. 6. On the second issue being whether the Respondent’s counterclaim was merited, the Respondent refers to Rule 31 of the Small Claims Rules which provides that in the conduct of any proceedings before it the court shall not be bound by the strict rules of procedure or evidence. The Respondent further avers that Rule 32 provides that no technical objection may be raised to any pleading or document prescribed by the rules on the ground of any want of form. Additionally, it is the Respondent’s case that the Appellant’s objection was not raised at an earlier stage which demonstrated that the Appellant was not opposed to the form of pleadings and hence he is now estopped from raising the objection on appeal. 7. On the substantive grounds of appeal raised, the Respondent submits that the trial court was correct in arriving at the conclusion that the agreement dated 21 October 2020 did not bind the Respondent as it was a contract award to Quebar City Limited by Obra International on behalf of the Appellant. The Respondent, therefore, avers that in the absence of a written contract, the parties were bound by conduct. The Respondent avers that the trial court held that there was an oral contract between the parties. 8. It is the Respondent’s case that it was not bound to the terms of a contract it was not party to and hence there were no timelines agreed between the parties for execution of the project. The Respondent submits that the evidence relied upon by the Appellant does not support the averment that the parties had agreed that the project would take five (5) weeks. Furthermore, the Respondent submits that its witness confirmed during trial that the products that the Respondent was using on the site were not locally available and had to be imported and this meant that timelines could vary based on various extraneous factors beyond its control. The Respondent also avers that the concerns which had been raised by the Appellant would be corrected before the project was commissioned. 9. On payments, the Respondent submits that the initial quotation of Kshs. 5,006,094.33 which the Respondent had issued later reduced to Kshs. 4,613,767.19 upon deduction of 8% VAT. The Respondent avers that this amount was varied later when the Appellant requested for variations which led to an increase of Kshs. 866,798.80 which was reflected in the revised quotation dated 23 February 2024 of Kshs. 5,480,565.99. The Respondent also avers that it is willing to complete and handover the project within 30 days upon payment of the outstanding amount of Kshs. 679,565.00 awarded in the counterclaim. 10. Finally, the Respondent submits that the Appellant was unable to prove his claim for special damages. It is the Respondent’s case that the Appellant’s evidence before the trial court was unreliable and that the special damages were not strictly proved. The Respondent prays for dismissal of the appeal with costs. **Analysis and Determination** 1. Having considered the grounds of appeal and the rival submissions by the parties, the following issues are discernible for determination: 1. Whether this appeal complies with Section 38(1) of the Small Claims Court Act; and if so; 2. Whether the Small Claims Court had jurisdiction to determine the dispute outside the sixty (60) days; and if so; 3. Whether the Appeal is merited. 2. For appeals from the Small Claims Court to the High Court, the checkpoint is whether the preferred appeal complies with Section 38(1) of the Small Claims Act. Under this provision, an appeal to the High Court is only permitted on “matters of law”. On what constitutes a matter of law, it is settled that an appeal would concern itself with the correct application of the law and conclusions drawn from findings of fact rather than the findings of fact themselves. Chesoni AJA observed as follows in this rergard: *… We would agree with the views expressed in the English case of Martin v Glyneed Distributors Ltd (t/a MBS Fastenings) [1983] 1 CR 511 that where a right of appeal is confined to questions of law only, an appellate court has loyalty to accept the findings of fact of the lower court(s) and resist the temptation to treat findings of fact as holdings of law or mixed findings of fact and law, and, it should not interfere with the decision of the trial of first appellate court unless it is apparent that; on the evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding the decision is bad law.* 1. The appeal before the court as stated in the grounds of appeal above challenges the trial court’s jurisdiction, whether the counterclaim complied with the law, whether the trial court applied the principles of contract law correctly, conclusions reached from the analysis of evidence by the trial court, questions whether the trial court considered all the evidence before it, and whether the trial court ignored binding precedence in its determination. I am satisfied that these are matters of law and that the appeal is properly before the High Court. 2. The second issue for determination concerns the import of Section 34(1) of the Small Claims Act. It is not contested that the impugned decision was rendered outside the 60 days prescribed under Section 34(1) of the Small Claims Act. There is no doubt that this is a matter that has received considerable judicial attention since the establishment of the Small Claims Court with conflicting positions from the High Court. While some of my colleagues have adopted a strict construction of the provision resulting in the determination that a Small Claims Court lacks jurisdiction upon the lapse of the sixty days provided in the Act, other colleagues have found that this provision is aspirational and a failure to determine a claim within sixty days is not fatal. 3. In my view, it is necessary to contextualise this provision within the broad framework of the Small Claims Court. The idea of a mechanism for adjudication of small claims was realized through the enactment of the Small Claims Court Act 2016 aimed at reducing backlog of cases before the Magistrates Courts and specifically to provide an affordable, less formal and expedited way of resolving disputes of a small value. This mechanism was anchored in the right to access to justice under Article 48 of the Constitution. The framework of these courts also sought to simplify the procedure for moving the courts as well as not being strictly bound by rules of evidence. It is clear that the idea of these courts was to provide an avenue for claims of a small value (initially set at a maximum of Kshs. 200,000.00) to be determined expeditiously. The 2015 bill also excluded the participation of legal counsel. The intention of the legislature has been captured by this court in [***Gathaiya v Attorney General & 2 others; & 176 Interested Parties [2026] KEHC 290 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/290/eng%402026-01-22)as follows: *32…It was unanimous during the debate by the 2nd Respondent that the Court was designed to provide an accessible, fast and cost-effective method for resolving civil disputes involving small amounts of money often without the need for a Lawyer. The procedures contemplated and adopted by the 2nd Respondent were generally more informal as contra-distinguished with the jurisdiction conferred in the Magistrates Courts.* *33…* *34. The letter and the spirit of Small Claims Court is the real peoples’ Court meant to provide an informal, uncomplicated proceedings to resolve small disputes that do not involve large sums of money to warrant the expense and legal threshold of formal litigation before the Magistrates Courts. We see that Court as a vehicle for social change and the case for equitable relief. Therefore, being a peoples’ Court where personal, small valued disputes are quickly and informally resolved without the need for legal representation mitigates the cancer of backlog in a litigious society like Kenya where every dispute is a threat to another ‘see you in Court’.* 1. Even though it is evident that the Small Claims Court was intended as “the people’s court” revisions to the initial proposal might have lost sight of this. First, the revision of the pecuniary limit from Kshs. 200,000.00 to Kshs. 1,000,000.00 opened the doors to more complex claims to be filed before these courts than what was initially contemplated. Second, while the participation of legal counsel was seen as necessary in promoting the right to legal representation it has had the effect of making the proceedings more judicial than informal as earlier contemplated. 2. The shift from the more informal to a more formalized set up with a higher pecuniary limit but setting a time limit of 60 days for resolution means that some claims might be resolved within a shorter period while other more complex claims may take longer than the sixty days. The volume of claims filed is also a success story for the project which may have a bearing on the ability of the adjudicators To meet this 60-day deadline. 3. Seen contextually, therefore, a strict interpretation of the provisions of Section 34(1) of the Small Claims Court Act would run afoul of Article 48 of the Constitution on the right to access to justice. It was not the intention of the legislature to open an avenue for promotion of the right to access to justice and at the same time lock the doors for those who seek expedited and affordable justice on the basis of a failure to obtain that justice in 60 days. The effect of such a scenario would be that the parties who would ordinarily benefit from this system of justice would be forced to file afresh at the lapse of the sixty days or take their claims to the Magistrates’ Courts. This would be absurd and antithetical to the *raison d’être* of the Small Claims Court. 4. In any case, and even though this court is cautious not to delve into matters within the province of the legislature, the experience of the surge of cases before the Small Claims Courts is an indicator of the success of the project which should give rise to a re-evaluation of the legal infrastructure to ensure that the challenges experienced can be addressed to give effect to the overall aim of promoting Article 48 of the Constitution. It would be prudent, for instance, to require the trial court to record reasons for the failure to render judgement within the prescribed period of sixty days. This will promote a practice of accountability. The baby must certainly not be thrown out with the bath water. 5. Turning to the dispute before me, it is evident that the claim before the trial court was not a simple claim. The record of the trial court shows that evidence was taken from witnesses including an expert witness before a determination was made. The trial court also undertook a site visit at the request of the Appellant. This request, it is noted by the Respondent, came only a day to the lapse of the 60-days. Examining the record of the trial court I am satisfied that the Adjudicator conducted the proceedings with the utmost diligence but the complexity of the claim hindered the determination within the timelines set in Section 34(1) of the Act. In any case, it is my finding that this failure did not deny the trial court jurisdiction to determine the matter and any contrary interpretation is not supported by a purposive interpretation of the Small Claims Court Act. The 60-day timeline must be seen for what it sought to achieve: timely disposal of claims and not a rigid ouster clause.[[1]](#footnote-1) I am in agreement with the words of the Court in [***Maghanga v Alias [2025] KEHC 19207 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19207/eng%402025-12-01)where it was held as follows: *35. This Court finds that the 60-day period in Section 34 is a mandatory directive to the court to manage its business efficiently, but it is not a self-executing guillotine that severs the court's jurisdiction the moment the clock strikes midnight on the sixtieth day.* *36. Jurisdiction, once properly invoked by the filing of a claim, is not automatically lost by the court's failure to adhere to an internal timeline, especially where a litigant is not responsible for the delay.* *37. To hold otherwise would be to allow the administrative challenges of the court to defeat the constitutional right of access to justice.* 1. Turning to the question whether the appeal is merited, the first issue raised by the Appellant is that the trial court erred in admitting the Respondent’s counterclaim which was not accompanied by a verifying affidavit. It is admitted that the Respondent’s counterclaim was not accompanied by a verifying affidavit. The Appellant avers that this was fatal to the counterclaim while the Respondent contends that the trial court was not bound by strict rules of procedure and evidence. 2. The procedure before the Small Claims Court is guided by the Small Claims Rules of 2019 which provides in rule 13 as follows: 3. *In addition to his or her response to the claimant's claim, a respondent may make a counterclaim or set-off against a claimant in Form SCC 3 as set out in the First Schedule hereto.* 4. *A respondent shall serve his or her Response containing the counterclaim or set-off on the claimant, and on every other party named in the statement of claim in accordance with rule 35.* 5. Form SCC 3 does not require the filing of an accompanying verifying affidavit. However, just like the claim and response, the form contains a declaration part where the party filing a counterclaim signs a declaration that the information given in the form is true. The record indicates that the declaration at the foot of the counterclaim was signed on behalf of the Respondent. The Appellant avers that recourse should be made to the Civil Procedure Act and rules thereunder where there is no prescribed rule of procedure under the Small Claims Court Act. 6. A verifying affidavit is an affidavit sworn by a claimant or respondent (where a counterclaim is preferred) averring to the correctness of the contents of the claim or counterclaim filed. Whereas the Civil Procedure Rules require the filing of a verifying affidavit, the rules of procedure guiding the operations of the Small Claims Court do not require the filing of a verifying affidavit but have an inbuilt declaration by the filing party to aver to the correctness of the claim or counterclaim. The Small Claims Court procedure is simplified as reflected in the Small Claims Court Rules, 2019 which provide that the court shall not be bound by strict rules of procedure,[[2]](#footnote-2) and prohibit any technical objection for want of form.[[3]](#footnote-3) Besides, the very essence of the Small Claims Court negates upholding procedure over substantive justice. I do not find any infringement of the rules in the Respondent’s counterclaim as alleged by the Appellant. The same was properly filed and admitted. The record also reflects that the Respondent issued a board resolution authorizing its representative to file documents in relation to the proceedings before court to defend its interests. This ground of appeal also fails. 7. On the substantive issues identified from the appeal, it is the Appellant’s contention that the trial court erred in finding that the contract between the parties did not have timelines. It is the Respondent’s case that there was no written contract between the parties hence no timelines were spelt out for completion of the works. The Respondent further avers that the materials were not sourced locally and these were issues beyond its control. 8. The trial court made findings that there was no written agreement between the parties and the contract dated 21 October 2020 did not bind the Respondent. It was the trial court’s observation that evidence placed before the court only proved the existence of an unwritten inferred by various communications between the parties and their conduct. Further, the trial court determined that on the basis of the evidence before the court there were no agreed timelines between the parties. It was his conclusion that timelines were varied within the performance of the contract due to other factors such as shipping delays during importation of materials, delay in payments and the work of other contractors on site. 9. The finding by the trial court that there was no written contract between the parties on the basis of the evidence before the court has not been challenged on appeal. Even though the Appellant had averred before the trial court that the parties were bound by the contract dated 21 October 2020, this argument was abandoned on appeal. The issue before the trial court for resolution was whether there were timelines in the contract inferred by conduct of the parties. 10. While the trial court made a finding that the parties had not agreed on specific timelines for completion of works, it was incumbent upon the trial court to determine whether by implication, the parties could be said to have intended for the works to be undertaken within a particular timeline. Even though not expressly stated, certain terms may be implied from the conduct and communication between the parties. However, in ***Trollope & Colls Ltd v North West Metropolitan Regional Hospital Board [1973] 1 WLR 601****,* the court held that, *“An unexpressed term can be implied if and only if the court finds that the parties must have intended that term to form part of their contract.”* 11. The test for implication of a term into a contract was set out by the Privy Council in ***BP Refinery (Westernport) Pty Limited v Shire of Hastings [1978] 52 ALJR 20*** as follows: *...for a term to be implied, the following conditions (which may overlap) must be satisfied:* *(1) it must be reasonable and equitable;* *(2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it;* *(3) it must be so obvious that ‘it goes without saying’;* *(4) it must be capable of clear expression;* *(5) it must not contradict any express term of the contract.* 1. A review of the evidence relied on by the Appellant before the trial court shows that the two parties engaged in discussions for installation of windows and doors on or about May 2023 which culminated in the issuance of a quotation by the Respondent for the sum of Kshs. 4,613,734.00. The parties agreed for a 50% upfront payment for the works and the remainder to be paid in two installments of 30% and 20%. On or about 17 May 2023, the Appellant paid a sum of Kshs 2,307,000.00 to the Respondent being the 50% deposit for the works. Thereafter, a sum of Kshs. 1,700,000.00 was paid to the Respondent on 29 June 2023. Along the way, the Respondent issued the Appellant with a revised quotation for the sum of Kshs. 5,688,743.00 on 23 February 2024 and a further payment of the sum of Kshs. 794,000.00 was made by the Appellant on 4 and 11 July 2024. Even as these payments were made, the parties engaged each other verbally, on email and on WhatsApp on the progress of the installations. From the communications between the parties, it is clear that there was an intention to have the works completed within certain timelines. For instance, in the following email from the Appellant to a representative of the Respondent of 9 January 2024, this intention is clear: *“Dear Bobby,* *Pursuant to our conversation on Friday 5th January. All works should have been completed by Tuesday 9th January, however there’s been no activity on site.* *We continue to register our frustrations and disappointment in dealing with Customs Aluminium. A 5 week job has become a 10 month plus chase for progress. We request you to expedite the remaining works urgently.* *Kind regards,* *Nick”* 1. The email correspondence between the parties also show that the Respondent was unresponsive to concerns raised by the Appellant on agreed timelines. The evidence also demonstrates that the Respondent fell into shipping related challenges as shown in communication between the parties in the months of September and October 2023. This evidence considered as a whole leads to the conclusion that even though the parties had discussions on timelines within which the work would be delivered, there were challenges along the way occasioned by shipping delays. However, it can also be inferred from the discussions between the parties that there was an implied term of the contract to complete the works within a reasonable period – all factors considered.[[4]](#footnote-4) Having considered the totality of the evidence, I am not satisfied that the Respondent performed its duty within a reasonable period considering especially the unresponsive nature of the Respondent’s representatives and the failure to undertake certain tasks on the dates agreed by the parties. 2. From the evidence adduced by the Appellant, it is clear that the Appellant followed up with the Respondent on an almost daily basis through email and WhatsApp communications on the progress of the works. The evidence also shows that the Appellant was building a family home and was anxious to have it completed within a reasonable period. It is evident that the Respondent did not do its part in completing the works within a reasonable timeline to the expected quality and hence there was a breach of contract. The absence of an agreed timeline for completion of a contract for works does not shield a contractor from completing the works within a reasonable period. The trial court, therefore, erred in law in failing to find that there was an implied term of the contract to complete the works within a reasonable period and that the Respondent had failed to comply with that. 3. Additionally, and related to the question whether the Respondent had failed to meet the timelines, the Appellant submits that there were defects in the works done by the Respondent. The Respondent argued that such defects could only be addressed upon commissioning. Considering the finding above that the Respondent was in breach of the contract by inordinately delaying the completion of the works, it then follows that the trial court erred in failing to make a finding on the defects as argued by the Appellant. The Appellant relies on photos submitted in evidence and an expert report and testimony which demonstrated that there were visible defects in the works undertaken by the Respondent. It is my finding that this evidence was not rebutted before the trial court in its entirety. The Appellant’s expert evidence was given by Ms. Grace Muendo, a Quantity Surveyor. Ms. Muendo testified that the Respondent had not completed the scope of work and there was poor workmanship. She further testified that the Appellant had paid the Respondent for work that was yet to be done. The witness further noted that the Respondent was not responding to emails and had not fulfilled promises that had been made. In her report, Ms. Muendo testified, she had done a valuation of the amount paid vis-à-vis the work that had been completed and she had arrived at a negative figure of Kshs. 1,340,022.00 meaning that the Appellant had overpaid the Respondent when compared to the work that had been done. 4. On whether there were structural defects, the trial court concluded that it could not delve into the issue since the building was yet to be commissioned, the court further concluded that the Appellant’s claim would only arise once the Respondent had been paid in full and the snagging period had lapsed. 5. The issue of delay of the works as discussed above is intricately related to the claim for substandard work to the extent that a finding, as the court has found above, that the Respondent inordinately delayed in completing the works would then necessitate consideration of the appropriate remedies. From the evidence of the engagements between the parties over the years it is evident that their relationship has irretrievably broken down. This situation then necessitates the consideration of whether the Respondent has undertaken the works as contracted commensurate to the payments it has received. Furthermore and as held above, there was an implied term of the contract to finish the works within a reasonable period which was not complied with. In view of these circumstances, the claim for special damages on account of substandard work was ripe for determination and the trial court erred in law by failing to render a determination. Consequently and considering that the Appellant’s claim for damages for the sum of Kshs. 1,000,000.00 was not controverted by any evidence by the Respondent, the same is allowed as prayed. 6. Further in regard to the counterclaim, the Appellant avers that the trial court failed to consider the Appellant’s response in its determination. The record shows that the Appellant filed a response to the counterclaim dated 28 July 2025. This response was part of his reply to the response which runs from page 190-195 of the record of appeal. The trial court’s judgement did not address the Appellant’s response in its determination and merely noted that the same was undefended. To the extent that the trial court failed to consider the Appellant’s response to the counterclaim, it erred in law. For that failure, it is upon this Court to consider the response and make a determination whether the conclusion arrived at by the trial court in respect of the counterclaim was correct. 7. It is contended in the counterclaim filed before the trial court that the Appellant owed the Respondent the sum of Kshs. 679,565.99 on account of non-payment of the balance of the quotation varied on 23 February 2024 and which amount was required for completion of the pending tasks. The Appellant averred in the response to the counterclaim that the Respondent had been overpaid for the works done since the work was incomplete and hence the Appellant ought to be refunded the sum of Kshs. 1,340,022.00 as stated in the letter dated 25 February 2025. 8. In support of the counterclaim, the Respondent’s witness, Ms. Joy Pushaty, testified at trial that the Appellant owed the Respondent a sum of Kshs. 679,000.00 which was the sum required to finish the pending works. The witness further testified that the Respondent had delivered 95% of the work and the remaining work could be done upon commissioning once the final payment has been made. 9. It seems from the counterclaim and the testimony in support thereof that the sum of Kshs. 679,000.00 sought in counterclaim was not for work done but for work remaining to be done. Whereas the Respondent has claimed this sum as part of the pending payment for pending work, it is evident that the relationship between the Appellant and the Respondent has irretrievably collapsed and the trial court could not award this sum to the Respondent on account of work to be done. It is clear that the parties do not have a working relationship anymore and they cannot be forced to continue working together especially for any pending work. As long as this sum was not for any work already done, the trial court erred in awarding the Respondent for work yet to be done when the relationship between the parties had irretrievably broken down. A court should not step in to force parties to continue working together if they express no desire to do so. Courts have no means to supervise such relationships upon rendering judgement. The trial court, therefore, erred in law in allowing the counterclaim and that determination is hereby reversed. 10. For the foregoing reasons, the Appeal has substantially succeeded and is allowed in the following terms: 1. The judgement and orders of the trial court dated 9 October 2025 are hereby set aside in their entirety; 1. Judgement is entered in favour of the Appellant for the sum of Kshs. 1,000,000.00 together with interest from the date of this judgement until payment in full; 2. The Appellant is awarded costs of this appeal assessed at Kshs. 60,000.00 as well as costs of the claim before the trial court which were assessed by the trial court at Kshs. 40,000. Orders accordingly. **Delivered, Dated** and **Signed** at **Nairobi** this **11th** day of **June,** **2026.** **Nabil M. Orina** **Judge** ***Judgment virtually delivered virtually in the presence of:*** ***Ms. Olao for the Appellant*** ***N/A for the Respondent*** ***Lisa – Court Assistant*** 1. See, Harry Karanja & Company Advocates, ‘Understanding the 60-day Rule in Small Claims Court’ available at <https://hklaw.co.ke/understanding-the-60-day-rule-in-small-claims-court/> accessed on 8 June 2026. [↑](#footnote-ref-1) 2. Rule 31. [↑](#footnote-ref-2) 3. Rule 32. [↑](#footnote-ref-3) 4. See, [*Langat v Co-operative Bank of Kenya Ltd [2017] KECA 152 (KLR)*](https://new.kenyalaw.org/akn/ke/judgment/keca/2017/152/eng%402017-12-01) *-* It is the duty of a court to construe a contract fully as agreed between the parties and any terms that can be implied from it. [↑](#footnote-ref-4)