[2020] KEHC 8079 (KLR)
The court found that the plaintiff had completed the construction works in accordance with the contract and had handed over the apartments to the defendant, supported by a Certificate of Practical Completion and delivery of Final Accounts. The defendant failed to pay the outstanding balance and did not challenge the...
Source-derived case information.
- Citation
- [2020] KEHC 8079 (KLR)
- Parties
- Plaintiff: SHIV CONSTRUCTION COMPANY LIMITED; Defendant: CHIEDO DEVELOPERS LIMITED
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 5 of 2019
- Procedural Posture
- Civil Suit / Formal Proof Judgment
- Outcome
- judgment_for_plaintiff
- Judges
- TW Cherere
- Legal Topics
- Contract Enforcement, Construction Contracts, Final Certificate, Interest on Judgment Debt
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
SHIV CONSTRUCTION COMPANY LIMITED
Plaintiff
CHIEDO DEVELOPERS LIMITED
Defendant
Procedural Posture
Civil Suit / Formal Proof Judgment
Legal Issues
- 1 Whether the defendant is liable to pay the outstanding balance under the construction contract.
- 2 Whether the final certificate issued is conclusive evidence of proper completion of works.
- 3 Whether the plaintiff is entitled to interest and costs.
Ratio Decidendi
The court found that the plaintiff had completed the construction works in accordance with the contract and had handed over the apartments to the defendant, supported by a Certificate of Practical Completion and delivery of Final Accounts. The defendant failed to pay the outstanding balance and did not challenge the Final Certificate within the contractually stipulated period. Therefore, the Final Certificate was deemed conclusive evidence of proper completion and the defendant's liability for the balance. Judgment was entered for the plaintiff for the claimed sum, with interest from 5th January 2015 as per the contract, and costs awarded.
Court Disposition
judgment_for_plaintiff
Orders
- Judgment entered in favour of the plaintiff for Kshs 44,716,402.39.
- The principal sum to attract interest at court rates from 5th January 2015 until settlement in full.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
CIVIL SUIT NO. 5 OF 2019
SHIV CONSTRUCTION COMPANY LIMITED..........PLAINTIFF/APPLICANT
VERSUS
CHIEDO DEVELOPERS LIMITED........................DEFENDANT/RESPONDENT
RULING
The Plaintiff, SHIV CONSTRUCTION COMPANY LIMITEDfiled suit against the Defendant, CHIEDO DEVELOPERS LIMITED, on 28th March 2019.
1. The claim against the Defendant was for the sum of
Kshs 44,716,402/39, being the balance payable to the Plaintiff, arising from work which the Plaintiff carried out for the Defendant.
2. On 19th November 2019 the case came up for Formal Proof.
3. PW1, DILIPKUMAR DHANJ SUTHAR, testified that he is one of the Directors of the Plaintiff.
4. He said that the Plaintiff had entered into a contract with the Defendant, pursuant to which the Plaintiff was to construct apartments in Kisumu. The said apartments were to be named Lake Breeze Apartments.
5. It was the Plaintiff’s case that they constructed the apartments in accordance with the contract.
6. Notwithstanding the fact that the project was completed and was handed over to the Defendant, together with a Certificate of Practical Completion, the Defendant had failed to remit payment of the balance of the contractual amount.
7. The Final Accounts were delivered to the Defendant, with the letter dated 27th November 2015, which was received by the Defendant on 4th December 2015.
8. Pursuant to clause 34. 22 the Final Certificate is deemed to be conclusive evidence that the Works were properly carried out and completed in accordance with the terms of the contract, unless the issue is referred to arbitration within 30 days from the date the said Certificate is issued.
9. Although the Plaintiff completed construction of the apartments, and handed them over to the Defendant, I find that the Defendant has failed or refused to pay the outstanding balance, amounting to Kshs 44,716,402/39.
10. Accordingly, I do now enter judgment in favour of the Plaintiff for the said sum of Kshs 44,716,402/39.
11. The said principal sum will attract interest at Court rates from 5th January 2015, until it is settled in full. The date from when interest is to accrue has been pegged on the provisions of clause 34. 22of the Agreement And Conditions of Contract for Building Works, which the parties executed on 24th December 2012.
12. The Plaintiff is also awarded the costs of the suit.
FRED A. OCHIENG
JUDGE
DATED, SIGNED at DELIVERED at KISUMU
This29thday of January2020
T. W. CHERERE
JUDGE