https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12688

Weihai Construction Group Ltd v Chege t/a Graphmann Engineering (Small Claims Appeal E014 of 2025) [2026] KEHC 12688 (KLR) (6 August 2026) (Judgment) Neutral citation: [2026] KEHC 12688 (KLR) Republic of Kenya In the High Court at Eldoret Small Claims Appeal E014 of 2025 RN Nyakundi, J August 6, 2026 Between Weihai Construction Group Limited Appellant and Boniface Mwangi Chege t/a Graphmann Engineering Respondent (Being an appeal from the Judgement of Hon. Tabitha Mbugua R.M/Adjudicator, delivered on 5th September 2025 in Eldoret Small Claims Court SCCC No. E833 of 2025) Judgment Background 1.The Claimant filed this suit seeking payment of Kshs. 368,640 being the outstanding balance for construction and drainage works undertaken pursuant to a subcontract agreement entered into between the parties for a consideration of Kshs. 1,188,640. It is not disputed that the Respondent made partial payment in the sum of Kshs. 820,000 leaving a balance of Kshs. 368,640. The Claimant avers that despite repeated demands and the Respondent's own written undertaking to settle the balance by installments, no further payment was made, thus necessitating the filing of this claim. 2.In the upshot, the Claimant has succeeded in proving its claim, while the Respondent has failed to prove its counterclaim. Accordingly, judgment is hereby entered in favour of the Claimant against the Respondent for the sum of Kshs. 368,640 together with interest at Court rates from the date of filing the suit until payment in full. The Respondent's counterclaim is dismissed with costs. The Claimant shall also have the costs of the suit. The Appellant was aggrieved with the decision of the Trial Court in which he filed the following grounds in his memorandum of appeal seeking redress before the High Court:a.The learned Adjudicator erred in law by making a finding that the Appellant had undertaken in writing to pay the alleged balance by instalments, in the absence of any written, oral, or otherwise admissible evidence of such an undertaking.b.The Learned Adjudicator erred in law and in fact in finding and holding that the contract sum between the parties was Kshs. 1,188,640, notwithstanding that the parties had not agreed to a lump-sum contract, the contract expressly provided that the contract price would be determined by reference to the actual materials supplied and work done.c.The learned Adjudicator erred in law in failing to properly apply the principles governing the burden of proof, thereby disregarding the Appellant’s defence and counterclaim.d.The learned Adjudicator erred in law in failing to consider or give due weight to the Appellant’s evidence, including documents disputing the quality and specifications of the culverts supplied.e.The learned Adjudicator erred in law in misapplying the principles of contractual interpretation by construing the contract and subsequent dealings in a manner prejudicial to the Appellant.f.The learned Adjudicator erred in law in misapprehending and mis-evaluating the evidence on record, thereby arriving at findings unsupported by evidence and contrary to law.g.Reasons wherefore the Appellant prays:a.The appeal be allowed.b.The Judgment and Decree of the Small Claims Court at Eldoret in SCCC No. E833 of 2025, delivered on 5th September 2025, be set aside in its entirety.c.This Honourable Court be pleased to substitute therefore an order dismissing the Respondent’s claim with costs.d.This Honourable Court be pleased to enter judgment in favour of the Appellant as per its defence and counterclaim before the trial Court.e.The Appellant be awarded the costs of this appeal and of the proceedings before the trial Court.f.Such order as the Honourable Court may deem fit to grant. 3.The Appellant in his submissions, he relied on the following cases; Mumbi M'Nabea v David M. Wachira [2016] eKLR, Maria Ciabaitaru M’mairanyi & Others v Blue Shield Insurance Co. Ltd, Civil Appeal No. 101 of 2000 [2005] 1 EA 280 to seek leave of this Court to allow the appeal with costs. 4.The Respondent on the other hand filed submissions on the strength of the following authorities; Butt v Khan (1981) KLR 349 and William Muthee Muthamia v Bank of Baroda (2014) eKLR. The Respondent objected to the line of arguments being advanced by the Appellant challenging the judgment of the Trial Court. 5.I have considered the evidence of the trial judgment and the subject matter why the Appellant oil aggrieved with the impugned judgment. I would therefore endeavour first to discuss the law and how they apply to the current facts of the case: Decision 6.There are many grounds in this appeal referring to the errors and omissions made by the trial magistrate in interpreting and construing the contract. In my view to begin with, this was a simple business commercial contract and what can be seen on the face of it are clear terms and I shall be endeavoring to interpret the four corners of the negotiated agreement together with obligations of each party at the contract. In doing so just as a stark reminder to the parties clearly drafted contract are essential for protecting the interests of all parties involved in the performance of the contract. In this space of litigation, I have come to appreciate that well-crafted contracts promote certainty, minimize ambiguity and provide a clear roadmap of resolving disputes. The parties should not be casual in drafting the terms of their respective agreements. There is need that the rights, responsibilities and consequences of the commercial transactions reduced into writings is drafted in a manner to bring to the parties a greater sense of confidence and security. These principles would form part of the legal lens upon which this appeal would be considered as between the two parties in contestation 7.An appellate Court reviews a lower Court's judgment through an appeal or a specific statutory review process governed by frameworks like Section 80 of the Civil Procedure Act. Guided by foundational case law, higher Courts intervene only under strict principles, such as apparent record errors, new evidence, or judicial discretion misdirections. The guiding principles for interference by the High Court on Appeal: Misdirection in Law or Fact: An appellate Court interferes if the lower Court misdirected itself or misapprehended evidence. Discretionary Decisions: Guided by principles in cases like Mbogo v. Shah, higher Courts will not overturn lower judicial discretion unless the decision is plainly wrong or causes injustice. Duty of First Appellate Court: Re-evaluates and re-appraises evidence, making allowances since it did not hear witnesses firsthand. 8.A Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been misjustice. See Mbogo v Shah [1968] EA 93 at 96. 9.The suit before the trial Court was that the claimant who is a contractor at Eldoret had entered into a contract agreement with the defendant in the sum of Kshs 1,188,640. In addition to this main contract according to the claimant there were further subcontracts agreements supported by exhibits 1, 2 and 3. He explained in detail the history of the contract agreement, the work done in establishing the culverts and at the end of it all he acknowledged having been paid Kshs 820,000 with a balance of the contract sum of Kshs 368,640 due and owing. 10.There is prima facie evidence on record that the contract agreement as entered between the Appellant and the Respondent is not disputed. It is now settled law in Kenya that Courts cannot rewrite, alter, or modify a written contract freely entered into by the parties. The key principles are laid down in the following cases: National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another [2001] eKLR: The foundational authority establishing that a Court of law cannot rewrite a contract, and parties are strictly bound by their terms. Pius Kimaiyo Langat v Co-operative Bank of Kenya Ltd [2017] eKLR: Reiterated the hallowed maxim that it is not the business of Courts to rewrite contracts between parties. Kanwal Sarjit Singh Dhiman v Keshavji Jivraj Shah [2025] KECA 1264: Affirmed that while Courts do not fix bad bargains, equity may intervene if a contract is proven to be shockingly unconscionable, oppressive, or exploitative. 11.The Court also in National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another [2001] eKLR as stated as follows:A Court of law cannot re-write a contract between the parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded and proved. There was not the remotest suggestion of coercion, fraud or undue influence in regard to the terms of the charge.It was also in stated by Shah JA in the case of Fina Bank Ltd vs Spares & Industries Ltd (Civil Appeal No. 51 of 2000 (unreported):“It is clear beyond peradventure that save for those special cases where equity might be prepared to relieve a party from a bad bargain, it is ordinarily no part of equity’s function to allow a party to escape from a bad bargain. 12.The Doctrine of Privity of contract, which originated form English common law, asserts that only the parties to a contract can enforce a contract’s terms or be bound by a contract’s terms. In Kenya even though the law of Contract Act does not expressly provide for privity of contract doctrine, Courts have consistently employed it through judicial construction resulting in both predictability and uncertainty. The trial Court therefore relied on the agreement by the parties while adjudicating the dispute. In my view after the parties have expressly entered into a written agreement, not only have they reduced themselves to be governed only by the terms of the contract but also have consented to be bound by such terms and conditions for adjudication of any further dispute or relation arising by the parties. Any subjective interpretation or creation of new terms and conditions out of the contract which has not expressly been made a part of the contract would have an impact on the other party. 13.In the present appeal the Appellant is trying to undertake a different interpretation of the terms of the contract as entered with the Respondent on the issue of Public Works of culverts to be put in place as agreed during the negotiations and biding of the contract. The repudiatory breach of this contract is nonpayment of the contract sum by the Appellant as against the Respondent. The reason for non-settlement of the balance by the Appellant is not very clear from the submissions and the evidence so far tendered to persuade this Court to interfere with the decision of the trial Court. There is also no evidence to support the aspect that the Respondent did not complete the specifics of the contract as stipulated in the terms agreed as between the two parties. One of the principles of contractual interpretation is that parties have the freedom to contract. To contact even to resolve their disputes away from the Courts, and that Courts should not re-write terms of a contract for them. 14.Given the above analysis I cannot replenish the contract between the Appellant and the Respondent with fresh terms by either reviewing the existence one or introducing a variation which is likely to constitute writing of a new contract to govern the relationship of the two litigating parties before the trial Court and now on appeal. As a matter of fact this appeal lacks merit, it just underscores the post-breach conduct by the Appellant such as defaulting in making payments to the Respondent so as to sustain contractual obligations as intended and agreed upon by both parties. The appeal is dismissed with costs to the Respondent. DATED, SIGNED AND DELIVERED AT ELDORET THIS 6TH DAY OF AUGUST 2026.……………………………………….R. NYAKUNDIJUDGE