https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11803

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS CIVIL APPEAL. NO. E190 OF 2022 SBI INTERNATIONAL HOLDINGS AG KENYA……………......................APPELLANT -VERSUS- BAMBURI SPECIAL PRODUCTS LIMITED……….………….……….…..RESPONDENT **JUDGEMENT** 1. By a Plaint dated 16th March 2012, the Appellant (then Plaintiff) sued the Respondent (then Defendant) seeking for: *(a) Special damages of Kshs.14,973,440/=;* *(b) Damages for breach of contract;* *(c) Costs of the suit.* *(d) interests on (a) and (b) above at court rates from date of filing suit till payment in full;* *(e) Any other or further relief as the honourable court may deem fit to grant.* 2. Upon being served with summons to enter appearance, the Respondent filed a Statement of Defence and denied the Respondent’s suit. 1. After several failed attempts to have the case handled through arbitration, the parties went back to court and the suit was set down for hearing. The Appellant called two witnesses in support of its case while the Respondent called one witness. The parties’ Advocates then filed their respective written submissions. The issues for determination were set out by the Appellant's Advocate and were adopted by the Respondent’s Advocate. The issues were as follows:- 2. *Whether the Plaintiff ordered ready mix concrete of a specific class from the Defendant.* 3. *Whether the Defendant supplied the specified class of ready-mix concrete.* 4. *Who is to blame for the loss and costs incurred in the demolition, replacement and reconstruction of pier 2 and 3 of the project.* 5. *Whether the Plaintiff is entitled to the prayers sought in the Plaint.* 6. *Who bears the costs of the suit and interests.* 7. Upon considering the above issues, the trial court found that the Plaintiff/Appellant’s suit lacked merit and dismissed it with costs to the Defendant/Respondent. 8. Being aggrieved by the said judgment, the Appellant lodged this Appeal vide a memorandum of appeal dated 20/12/2022 raising 10 grounds of appeal as follows that :- 9. **THE Learned Magistrate erred in law and in fact in holding that the Appellant did not prove the existence of a contract to supply mix concrete and the specifications thereof despite overwhelming evidence on record.** 10. **THE Learned Magistrate erred in law and in fact in failing to appreciate that the quotations or specifications or deliveries of ready-mix concrete on record constituted a binding contract between the parties even without a formal written contract between the parties for the same.** 11. **THE Learned Magistrate erred in law and fact by failing to determine the case on the basis of the law and available facts before him by basing his entire decision on the notion that there was lack of a formal contract whereas both parties acknowledge that there was indeed a contract in place implied by their actions and documents on record.** 12. **THE Learned Magistrate erred in law and fact in holding that the Appellant did not prove the existence of a contract for delivery of ready- mix concrete as no dates were mentioned as to when low quality concrete was supplied especially in the year 2010 despite also holding that the Respondent had admitted making several deliveries of ready- mix concrete to the Plaintiff in the year 2010 and adduced in evidence the quotations thereof for the same. This finding is contradictory.** 13. **THE Learned Magistrate erred in law and in fact in failing to appreciate the quality specifications for the orders made by the Appellant to the Respondent for ready mix concrete were spelt out in. The Standard Specifications for Road and Bridge Construction Roads issued by the Ministry of documents and produced in evidence as Exhibit 6 on the Appellant's List of dated 6th August,2019 and which the court, if in doubt, force ought for to have taken judicial notice of, being a statutory instrument in the time being in the Republic of Kenya. The Respondent as a large-scale supplier of ready-mix concrete to various contractors’ country in the is well versed with the said statutory instrument and duly stated the specifications in its quotations and thereof the lower court's finding that the Appellant never stated the specifications is erroneous.** 14. **THE Learned Magistrate erred in law and in fact in failing to appreciate the Appellant's evidence on record vide various tests carried out by both the laboratory Appellant's, independent laboratories and Ministry of Roads the which all concluded that the ready-mix concrete supplied by Respondent Respondent's was of such low quality. The Learned Magistrate took the word of mouth against scientific tests adduced in evidence.** 15. **THE Respondent Learned Magistrate misdirected himself in failing to appreciate that did not perform his contractual obligation of supplying quality concrete mix which was an implied condition of the contract despite the evidence tendered by the Appellant.** 16. **THE Learned Magistrate erred in law and in fact in holding that the issues of loss and special damages suffered by the Appellant cannot hold despite the overwhelming evidence on record of loss and special damages quantified at Kshs.14,973,440/-.** 17. **THE Learned Magistrate erred in law and in fact in adopting wrong principles in dismissing the Appellant's suit by imposing a burden of proof upon the Appellant that is higher than in normal practice in Civil Cases when it should be on a balance of probability.** 18. **THE Learned Magistrate erred in law and in fact in failing to consider the Appellant's submissions and authorities on record.** 19. It is proposed to ask the court that: *(i) The Appeal be allowed in the following terms:-* *a) The entire lower court judgment be set aside and there be judgment of the Appellant as prayed in the lower court.* *b) The Respondent be held liable for breach of contract.* *c) Special damages be assessed by this Honourable Court of Kshs.14,973,440.00/=.* *d) Costs of the lower Court suit and the Appeal be awarded to the Appellant.* *e) Interest on (c) and (d) above at court rates from the date of filing of the suit in the lower court till payment in full.* *(ii) Any other further relief that this Honourable Court may deem fit and just to grant.* 1. The appeal was canvassed through written submissions. The Appellant’s submissions dated 2nd July 2025 replicate the grounds of appeal above save for the cited authorities and I wish not to duplicate the same here. 2. The Respondent’s submissions are dated 17th July 2025. It is submitted that the trial court was correct in law and fact in finding that there was no formal agreement on what was to be supplied and its specifications, and that the Appellant/Plaintiff did not tender any evidence to prove that the Respondent/Defendant had supplied concrete prior to 31/1/2011. The trial court correctly held that the burden of proof lay on the Plaintiff to establish the existence of a contract to supply mixed concrete and its specifications. The Appellant cannot now claim that the trial court should have found that an oral contract existed, despite not having produced any evidence to that effect. Reference was made to **Kinyanjui Kamau -vs-George Kamau [2015] eKLR**. 3. That the trail court correctly found that the Appellant had not tendered any evidence of supply of concrete by the Respondent before 31/1/2011 despite the correspondence condemning the pier 2 and 3 of the project all being done in the year 2010. Reference was made to **Galaxy Paints Co. Ltd -vs- Falcon Guards Ltd.** 4. The Appellant faults the Trial Court for not creating "***terms of the oral contract***" by refusing to take judicial notice of standards set by a third party who was not privy to the contract with the Respondent. Reference was made to **National Bank of Kenya Ltd -vs- Pipeplastic Samkolit (K) Ltd & Anor [2001] eKLR.** 5. The Trial Court was right in holding that once the Appellant was unable to prove that the Respondent supplied low- quality mixed concrete before the 30/11/2010 - which contributed to the demolition of the two piers - the other issues of loss and special damages could not succeed. 6. The Respondent submits that the Appeal herein has no merit and should be dismissed with costs. **Analysis and Determination** 1. This being a first appeal, this court is under a duty to reconsider the evidence adduced and re-analyse it so as to be able to reach its own independent conclusions and thus determine whether the conclusions reached by the trial court are consistent with the evidence and the applicable law. In **Gitobu Imanyara & 2 Others vs Attorney General [2016] eKLR** the Court held that: *"This being a first appeal, it is trite law that this court is not bound necessarily to accept the findings of fact by the court below and that an appeal to this court from a trial by the High Court is by way of a retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect”* 1. I have carefully considered the trial court’s record, the grounds of appeal and the respective submissions filed by the parties’ counsel. The two pertinent issues I frame for determination herein are: 2. *Whether the Appellant is entitled to damages for breach of contract;* 3. *Whether the Appellant proved the claim for* *Special damages of Kshs.14,973,440/=;* 4. **Whether the Appellant is entitled to damages for breach of contract;** 5. In accordance with the provisions of Section 107 of the [Evidence Act](https://kenyalaw.org/akn/ke/act/1963/46) (Cap.80), the burden was on the Appellant to prove its claim against the Respondent. It being a civil case, the standard of proof was on a balance of probabilities. 6. The Appellant bore the burden to prove the existence of a contract to supply concrete and the clear specification of such concrete. Just like the trial court, I have established that what was adduced before court were general statements by the Appellants witnesses of there being a contract to supply ready-mix concrete. No dates were mentioned as to when the low-quality concrete was supplied. The Respondent’s witness produced four quotations of ready-mix concrete supplied to the Appellant dated 1st November 2010, two dated 31st January 2011 and one undated. The Appellant did not specify which of these quotations and supplies were below the expected quality that resulted into breach of the alleged contract herein. In addition, from the exhibits produced by the Appellant, there is no proof on what was to be supplied and the specification. What the Appellant produced were two quotations for the supply of ready-mix concrete at Stoni Athi both dated 31st January 2011. The first quotation was for the supply of classes 25 and 30, while the second one was for the supply of class 40 and pumping. The said quotation provides for terms of sale, which set out the general conditions. Under general condition No.8, the Respondent clearly states that it will not recognize test results from concrete supplied unless such test is done at the point of delivery and tested in accordance with the set standards. It can be observed that the Appellant failed to put forward the detailed particulars of when the concrete was delivered. 7. The trial court’s record shows that the Appellant did produce a letter dated 30th November 2020 addressed to the resident engineer informing him that the concrete used in tier 3 and 4 had failed to meet the minimum specifications for class 30/20. It can be noted that all the documents produced by the Appellant that allude to communication between the resident engineer, the project manager of the Appellant and the material engineer are dated the year 2010. There is nothing to show that the Respondent supplied concrete prior to 31st January 2011. 8. Further, the Respondent’s position is that the Appellant did not give specification for the concrete and that the standard specifications of road and bridge referred to by the Appellant is not a Kenyan specification as the Kenyan standards are domiciled in the Kenya Bureau of Standards. The Respondent’s terms of salle are clear in General Condition 5 and that is why they applied. The Appellant reserved the right to reject any concrete supplied by the Respondent that did not meet its specifications. The Appellant opted not to do that. 9. The Respondent contends that the Quality Assurance Report referred to by the Appellant was given after the alleged failed concrete was supplied to the Appellant’s site and no similar document was given for the concrete which is the subject matter of this suit. 10. On the foregoing analysis, this court finds that the trial court correctly held that the burden of proof lay on the Appellant to establish the existence of a contract to supply ready-mixed concrete and its specifications. The Appellant cannot now claim that the trial court should have found that an oral contract existed, despite not having produced any evidence to that effect. 11. The Appellant wrongly faults the Trial Court for not creating "***terms of the oral contract***" by refusing to take judicial notice of standards set by a third party who was not privy to the contract with the Respondent. This court further finds that the trail court correctly found that the Appellant had not tendered any evidence of supply of concrete by the Appellant before 31/1/2011 despite the correspondence condemning the pier 2 and 3 of the project all being done in the year 2010. 12. Accordingly, this court finds that the Appellant did not prove on a balance of probabilities that the Respondent breached any contract with it as alleged, hence the Appellant is not entitled to the award of damages for breach of contract herein. 13. **Whether the Appellant proved the claim for Special damages of Kshs.14,973,440/=;** 14. It is trite law that Special Damages have to be specifically pleaded and strictly proved. 15. The Appellant at paragraph 8 of the Plaint dated 16th March 2012 pleaded that the reconstruction and the failure by the Respondent to supply the required material as per specifications, the Appellant was forced to incur more expenses which it would otherwise not have incurred to rectify the mistake due to the breach of the contract namely :- 16. Manpower (salaries and wages to employees both expatriate and local) Kshs.9,255,433.00 1. Equipment for demolition and those that were idle as a result of the ongoing demolition and reconstruction works Kshs.3,561,586.00 1. Material (both newly sourced & wasted) Kshs.2,156,421.00 **Total** **Kshs.14,973,440.00** 1. The Appellant argues that it pleaded the special damages and strictly proved them as appears above and urges this Court to find that there was an obvious error which cannot be left to stand but must be set aside in compliance with the law. The trial court had the duty to assess damages noting that the Appellant had established existence of an oral contract with the respondent. 2. The Appellant’s claim for special damages is founded on the allegation of breach of contract herein. This court having found under issue (i) above that Appellant did not prove on a balance of probabilities that the Respondent breached any contract with it as alleged, similarly the claim for special damages must fail. 3. The upshot is that the appeal lacks merit and is dismissed with costs. 4. It is so ordered. This file is closed. Right of appeal 30 days. JUDGMENT DATED & SIGNED AT MACHAKOS THIS 28TH JULY 2026 **NOEL. I. ADAGI** **JUDGE** DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 28TH JULY 2026