[2023] KEHC 24142 (KLR)

Westcon Contractors Limited v Kenya Airways Authority (Civil Suit 3 of 2018) [2023] KEHC 24142 (KLR) (24 October 2023) (Judgment)

Neutral citation: [2023] KEHC 24142 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Suit 3 of 2018

DKN Magare, J

October 24, 2023

Between

Westcon Contractors Limited

Plaintiff

and

Kenya Airways Authority

Defendant

Judgment

1. In the Plaint dated 9th February 2013, the Plaintiff pleaded among others that:i.On or about January 2015, the Defendant invited tenders for the fencing of the Moi International Airport including associated civil works at a sum of Ksh. 125, 125, 179. 45ii.The Plaintiff and the Defendant executed a contract for the proposed cite implementation of the Moi International Airport building works dated 4th February 2015 at an agreed total price of Ksh. 125, 125, 179. 45. iii.The provisions of the contract were inter alia that the contract sum was subject to the variations and fluctuations in the terms of the contract, the completion time would be 10 months and defects liability period of 12 months.iv.That it was also a term of the contract that the percentage of retention would be 10% of the payment certificates due upon issuing certificates and the other upon expiry f the defects liability period.v.That also a term that the Defendant would ensure availability of the finances when and as required by the Plaintiff.vi.Further, that the project engineer would issue the necessary approvals on behalf of the Defendant.vii.The Plaintiff would execute a bond that would remain in place until the period of completion until 30 days beyond the date of issuance of certificate of completion.viii.The Plaintiff would be entitles to interests upon late payments.ix.The Defendant has declined to refund the retention money amounting to Ksh. 11,947,161. 09. x.The Defendant has also declined to pay Ksh. 54,412,686. 80 being sums due pursuant to the final accounts per the contract.xi.That the Defendant was thus in breach of the contract by failing to pay the amounts on the due dates, failing to release the retention fund, frustrating the contract.xii.The outstanding payment for the work done is Ksh. 76,977,423. 55.

2. The Plaintiff thus prayed for the following reliefs:-a.A Declaration that the contract between the Plaintiff and the Defendant has document to an end.b.A declaration that the Plaintiff had performed its contractual obligationsc.Sum of Ksh. 76,977,423. 55. d.Costs and interest at commercial rates.

3. The Defendant filed its Defence on 20th March 2018 in which it denied the averments by the Plaintiff and stated inter alia that:a.The Defendant invited bids for the construction of walls, gates and gate houses and fencing at the Moi International Airport in January 2015 for the construction of a new perimeter fence using the Defendant’s and the contractor’s materials.b.The Plaintiff’s bid was successful and a contract for Ksh. 125,125,779. 45 was executed between the parties on 4th February 2015. c.Prior to the remittance on an interim payment certificate by the Defendant, the work done would be evaluated against the Bill of Quantities and the Plaintiff was paid a total of Ksh. 110,508,588. 20. d.A final measurement of work was done by a joint inspection team from both parties and it was noted that some items included in the Bill of Quantities were not undertaken at all and some were only partially done and others could not be supported by proof.e.The Plaintiff was to settle electricity and water bills of Ksh. 581,288. 28 per the contract but which it did not and is owed.f.The Plaintiff owed the Defendant an amount of Ksh. 543,055. 12/ based on the work done and the paid amount-.g.The Plaintiff is on breach of the contract.

4. Later on 27/4/2023 the plaintiff made an oral application to amend the plaintiff and claim a sum of 80,422,333. 30 instead of 76,977,423. 55. the effect was to change 54,412,686. 80 to 57,433,113. 35. this with vat increased the amount to the figures hitherto posited. I allowed the application.

Evidence 5. The Plaintiff called one witness, PW1, Francis Kamau Kahiu who testified and produced evidence in Court. He relied on his witness statement and the bundle of documents both dated 12th February 2018 as well as the Supplementary List of Documents filed on 17th May 2022 to support the Plaintiff’s case. He prayed for the amount pleaded.

6. In cross examination, it was his case that the contract between the Plaintiff and the Defendant was for Ksh. 125,125,179 and as per the bill of quantities. His case was that the draft final certificate was given for the works done. He however conceded that certain works including at the gate were not yet done.

7. It was common ground on the retention. His issue was that the defendant failed to certify for work done till later when the CEO wrote a certificate of practical completion. He denied that the joint measurement group had his representatives. He stated that the people who attended did not have his authority.

8. The Court was also informed that though indicated as Ksh. 129,466,733 as the contract price, the committee had amended the amount to Ksh. 125,125,179 and that the 5% provided for contingencies was not part of the things the Plaintiff was to spend and no authorization was given to settle contingencies.

9. It was his case that the Plaintiff was paid on interim certificates and all certificates were settled.

10. Further, he testified that he completed the works as specified in the Bill of Quantities. He however conceded that some works were not done as aforesaid.

11. He further stated the Bill of Quantities provided 3,400 posts at the rate of Ksh. 1,400/= for Ksh. 4,080,000/= and the Plaintiff was to provide 7,500 posts at the rate of Ksh. 5,000/= for Ksh. 3,750,000/= using own materials.

12. It was his case that the report indicated 2,907 posts and the Plaintiff never provided 750 posts. In cross examination, he confirmed that no gate house was constructed and so they not entitled to be paid for such work not done.

13. He further stated a fee of Ksh. 3,500,000/= was paid to the engineers who were employees of the Defendant and that the certificate of completion was issued. I noted in my notes that the witness was evasive and did not want to answer questions. These were questions in relation to the posts and works not done.

14. He confirmed that the wall is only 872 metres and not as contracted. The posts used were far less than contracted .as a fact they did not provide for their own posts as contracted. He confirmed that except for the retention, no certificate was unpaid. He confirmed that for final certificates there was to be measurement of works.

15. The Defendant called two witnesses. The first one, Peter Mwangi Kariuki. He relied on his witness statement dated 5th September 2019 and the Bundle of Documents and stated that he was the chairman of the inspection and acceptance committee. He was in the committee that authorized payments for the interim certificates.

16. In cross examination, it was his case that he was the chair of the Inspection Committee with the mandate to check the work done and he was one of those who gave the go ahead to authorize the certificates.

17. He further stated that they officially invited the contractors who went to the site. They found that some works were yet to be done. He enumerated them

18. In re-examination, he stated that the contractors would table the documents which he would go through before advising the manager to make payments.

19. The Defendant’s second witness, DW2, Frederick Odawo relied on his statement dated 10th September 2019 in support of the Defendant’s case.

20. In cross examination, it was his case that he was involved in the transaction as General Manager of the Defendant and that the interim certificates were properly paid. He stated that it is the engineer who certified the payments.

21. He testified that the Plaintiff had been paid Ksh. 110,508,588. 20. there was retention of 11, 050,858. 88 being 10 % of the interim certificates.

22. He testified that the joint measurement works concluded that there are works not done and posts not applied. He stated that the public procurement and disposal act provides for joint inspection of works. He stated he issued a certificate of practical completion in line with clause 60(5) of the contract.

23. The Court directed parties to file their respective written submissions.

Analysis 24. The contract is very specific on its tenor and amounts. It was based on the bill of quantities dated 4/2/2015. It was for Ksh 125,125,779. 45. from the evidence Ksh. 110,508,588. 20. had been paid. In an ordinary contract the only question will be whether Ksh. 14,617,190. 28 was certified. In certificate of final works as per the contracts errors in the interim certificates are corrected.

25. The contract was based on FIDIC conditions for contract for works of civil engineering construction (fourth edition, re-printed 1992). It was also based o the priced bill of quantities. The contract provided, inter alai for variations, which variations were to be approved under the FIDIC conditions for contract for works of civil engineering construction. There were no variations shown to have been done. It is thus expected that the final works will be Ksh. 14,617,190. 28 or less.

26. The issue for determination in this case is whether the Defendant is in breach of the contract dated 14th February 2015 as to entitle the Plaintiff to the reliefs sought.

27. The dispute thus revolves around breach of contract. It is clear that a valid contract has, in law, terms binding the parties thereto and which they are under duty and obligation to perform. Proof of performance or breach of contract is a matter civil law subject to a balance of probabilities.

28. This position was well summarized by Njugi, J as she then was in Taidy’s Restraurant v Gerfas Otieno Sammy t/a Nyanco Investment Contractors [2019] eKLR where she reflected the proper standard of performance of contracts as follows:“The plaintiff in a civil suit is required to prove his or her case on a balance of probability-see Kirugi & Anor. -vs- Kabiya & 3 others [1987] KLR 347. In the present matter, I am satisfied that the trial court properly reached the conclusion that the appellant had entered into a contract for the construction of a car park for the appellant, that the respondent had performed his part of the contract but the appellant had failed to pay the contractual sum, and it properly entered judgment for the respondent.”

29. Similarly, in the case of Pius Kimaiyo Langat v the Kenya Commercial Bank of Kenya Ltd [2017] eKLR the Court of Appeal restated its decision in William Muthee Muthami v Bank of Baroda [2014] e KLR to the effect that:“In the law of contract, the aggrieved party to an agreement must, in addition, prove that there was offer, acceptance and consideration. It is only when those three elements are available that an innocent party can bring a claim against the in breach.”“Lord Clarke, in RTS Flexible Systems Ltd v Molkerei ??Aloi Muller GM BH [2010] I WLR 753 at [45], [2010] UK SC 14 put it this way:“The general principles are not in doubt. Whether there was binding contract between the parties and if so, upon what terms depends upon what they have agreed. It depends not upon their subjective state of mind, but upon a consideration of what was communicated between them by words or conduct, and whether that leads objectively to a conclusion that they intended to create legal relations and had agreed upon all the terms which they regarded or the law requires as essential for the formation of legally binding relations. Even if certain terms of economic or other significance have not been finalized, an objective appraisal of their words and conduct may lead to the conclusion that they did not intend agreement of such terms to be a precondition to a concluded and legally binding agreement.” (emphasis added)

30. Furthermore, the elements of a contract are set out in Halsbury’s Laws of England 4th (ed.) Re-Issue Vol. 9(1) paragraph 603 at page 340 as follows:“To constitute a valid contract(1)there must be two or more separate and definite parties to the contract;(2)those parties must be in agreement, that is, there must be consensus on specific matters (often referred to in the older authorities as ‘consensus ad idem’);(3)those parties must intend to create legal relations in the sense that the promises of each side are to be enforceable simply because they are contractual promises;(4)the promises of each party must be supported by consideration or by some other factor which the law considers sufficient. Generally speaking, the law does not enforce a bare promise.”

31. In the instant case, the existence and validity of contract is not a disputed matter and this court proceeds on the basis of the existence of a valid contract between the parties. The contract is for supply of construction and civil works whose terms are in the contract documents including on FIDIC conditions for contract for works of civil engineering construction (fourth edition, re-printed 1992), bill of quantities and other tender documents.

32. The Plaintiff pleaded that the Defendant owed it outstanding payments for the work done of Ksh. 54,412,686. 80, retention amount of Ksh. 11,947,161. 09 and VAT of Ksh. 10,617,575. 66 all totaling Ksh. 76,977,423. 55. The Court had allowed the Plaintiff’s oral application amend the claim to increase it as follows: outstanding payment for works, Ksh. 57,433,112. 36, VAT to Ksh. 11, 048,109. 98 with effect that the total amount increased to Ksh. 80,428,333. 30/-.

33. The question in my mind is how Ksh. 80,428,333. 30/- arose given that the contract was for Ksh. 125,125,179. 45 inclusive of VAT subject to variations and fluctuations in terms of the contract.

34. On the other hand, the Defendant contended in its pleadings and evidence that the Plaintiff did not complete the works as to be entitled to full payment of the contract price.

35. The plaintiff admitted that art of the works including the gate and certain aspects of the bill of quantities were not carried out. The plaintiff’s witness further conceded being paid money due to the defendant’s engineers for inspection. He did no surrender provisions and materials that he was to.

36. Further the joint inspection team found out that less works were done than anticipated. This is the point the Plaintiff will have pleaded quantum meruit. They did not. The effect is that the court is not in a position to award amounts that are less than Ksh. 14,617,190. 28 without a plea for quantum meruit. In Stephen Kinini Wang'ondu v The Ark Limited [2016] eKLR, the court, justice John M. Mativo as then j was, stated as doth: -“Quantum meruit is a Latin phrase meaning "what one has earned." In the context of contract law, it means something along the lines of "reasonable value of services". The elements of quantum meruit are determined by the common law. For example, a plaintiff must allege that (1) defendant was enriched; (2) the enrichment was at plaintiff's expense; and (3) the circumstances were such that equity and good conscience require defendants to make restitution.[1]Quantum meruit is the measure of damages where an express contract is mutually modified by the implied agreement of the parties, or not completed. The concept of quantum meruit applies in (but is not limited to) the following situations:-a.When a person hires another to do work for him, and the contract is either not completed or is otherwise rendered un-performable, the person performing may sue for the value of the improvements made or the services rendered to the defendant. The law implies a promise from the employer to the workman that he will pay him for his services, as much as he may deserve or merit.b.The measure of value set forth in a contract may be submitted to the court as evidence of the value of the improvements or services, but the court is NOT required to use the contract's terms when calculating a quantum meruit award. (This is because the values set forth in the contract are rebuttable, meaning the one who ultimately may have to pay the award can contest the value of services set in the contract.)c.When there is an express contract for a stipulated amount and mode of compensation for services, the plaintiff cannot abandon the contract and resort to an action for a quantum meruit on an implied assumpsit. However, if there is a total failure of consideration, the plaintiff has a right to elect to repudiate the contract and may then seek compensation on a quantum meruit basis.The rationale for the above principle is that many circumstances spring up in which the law as well as justice demands a person to conform to an obligation, in spite of the fact that he might not have committed any tort nor breached any contract. Such obligations are described as quasi-contractual obligations. Simply put, Quantum meruit is the reasonable price for the services performed. In the context of contract law, it means ‘reasonable value of services.’[2] Quantum meruit is the measure of damages where an express contract is mutually modified by the implied agreements of the parties, or not completed.”

37. In the current circumstances the contract was there was no mutual variation. The Plaintiff was under duty to complete the contract to be paid the remainder of the amount on contract, that is, Ksh. 14,617,190. 28. to begin with there is no variation recorded or pleaded. Without a variation there is no basis for payment over and above 125,125,779,88 as per the contract.

38. The Fidic rules provide for the mode of variation. It does not matter that the plaintiff prepared a =draft final certificate. The certificate was not in consonance with the contract. Under Fidic conditions and the contract, it was the engineer who was to approve as done in the other 5 interim certificates. This was not done.

39. The plaintiff was claiming under the contract. He was not claiming under any variation. There are bound by their pleadings. By admitting payments of Ksh. 110,508,588. 20, as hiving been paid, as a corollary they were admitting that the only possible balance is, Ksh. 14,617,190. 28.

40. In the case of Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] eKLR, Justice A C Mrima stated as doth; -“11. It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must be in consonance with the pleadings. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded. That settled position was re-affirmed by the Court of Appeal in the case of Independent Electoral and Boundaries Commission & Ano. vs. Stephen Mutinda Mule & 3 others (2014) eKLR which cited with approval the decision of the Supreme Court of Nigeria in Adetoun Oladeji (NIG) vs. Nigeria Breweries PLC SC 91/2002 where Adereji, JSC expressed himself thus on the importance and place of pleadings: -“…..it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded………In fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation.”

41. In the case of Malawi Railways Ltd vs Nyasulu [1998] MWSC 3, Malawi Supreme Court of Appeal stated as doth when the learned judges cited with approval an article by Sir Jack Jacob entitled “The Present Importance of Pleadings” published in [1960] Current Legal Problems at p 174 whereof the learned author posited that: -“As the parties are adversaries, it is left to each one of them to formulate his case in his own way subject to the basic rules of pleadings …….for the sake of certainty and finality; each party is bound by his own pleadings and cannot be allowed to raise a different fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The court itself is as bound by the pleadings of the parties as they are themselves. It is no part of the duty court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings. Indeed, the court would be acting contrary to its own character and nature if it were to pronounce any claim or defence not made by the parties. To do so would be to enter upon the realm of speculation. Moreover in such event, the parties themselves, or at any rate one of them might well feel aggrieved; for a decision given on a claim or defence not made or raised by or against a party is equivalent to not hearing him at all and thus be a denial of justice….In the adversarial system of litigation therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither party can complain if the agenda is strictly adhered to. In such an agenda, there is no room for an item called “Any Other Business” in the sense that points other than those specific may be raised without notice.”

42. On the other hand the Supreme Court of Kenya in its ruling on inter alia scrutiny in the case of Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR found and held as follows in respect to the essence of pleadings in an election petition: -“In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings…...’”

43. It is not my duty to amend the contract and insert into it a further sum of 80,422,333. 30. the plaintiff may have done some of the works. However, he did not pursue and get a final certificate for the remainder of the works. He did not get any variation for the works outside the contract. They are bound by the contract they entered into.

44. There is no prayer for me to dispense with any requirement of the contract. All certificates were paid. The purported draft final certificates are extra contractual. In the case of National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & another [2001] eKLR, the court of Appeal, Tunoi, Shah & Keiwua JJ A, stated as doth: -“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.As was stated by Shah JA in the case of Fina Bank Limited vs Spares & Industries Limited (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”.

45. Further, it is not in dispute that the contracted amount, properly-so-called; consideration in the law of contracts, was Ksh. 125,125,179. 45 inclusive of VAT subject to variations and fluctuations in terms of the contract.

46. The parties proved that the defendant already paid the Plaintiff a sum of Ksh. 110,508,588. 20 constituted as stated below and referred to its Final Accounts in evidence:i.Interim Payment Certificate No. 1 Dated 13th January 2015, for Ksh. 24,040,333/=;ii.Interim Payment Certificate No. 2 Dated 13th October 2015 for Ksh. 24,969,870/=;iii.Interim Payment Certificate No. 3 for Ksh. 21,037,957. 20/=iv.Interim Payment Certificate No. 4 Dated 24th February 2016v.Interim Payment Certificate No. 5 Dated 14th June 2016 for Ksh. 11,310,058. 00/=.

47. The summary of the contentions may be laid down as follows:a.A sum of Ksh. 2,100,000/= was allowed for the provision of the office requirement for the Engineer’s office for which the Plaintiff had been paid Ksh. 1,050,000/- but no items had reverted to the Authority.b.The Plaintiff had been erroneously paid Ksh. 3,500,000/= for engineer’s supervision.c.Items 1. 3 and 1. 8 in the Bill of Quantities were yet to be completed but the Plaintiff had been fully paid and ought refund Ksh. 624,342. 11/= to the Defendant.d.The Plaintiff only used 2,907 intermediate posts instead of the quantified 3,400 posts.e.The Plaintiff only utilized 872 strainer posts instead of the quantified 1000 posts.f.The tidal length of the masonry walling was 1,400 meters but the Plaintiff constructed only 892 meters.g.No gate houses were constructed as required under the Bill of Quantities.h.The Plaintiff left Electricity bill invoice of Ksh. 581,288. 28/= unpaid which it ought to have paid.

48. These were the items to be taken care of by the final certificate out of the balance of the contractual amount of Ksh. 14,617,190. 28. these was to be settled by the parties. The plaintiff did not deny any of the foregoing. It is not for me to calculate on the basis of the evidence what is due. Parties must specifically plead and proof. Though dealing with special damages, the court of Appeal in the case of David Bagine vs Martin Bundi [1997] eKLR, the court of Appeal stated as follows: -“It has been held time and again by this Court that special damages must be pleaded and strictly proved. We refer to the remarks by this Court in the case of Mariam Maghema Ali v. Jackson M. Nyambu t/a sisera store, Civil Appeal No. 5 of 1990 (unreported) and Idi Ayub Sahbani v. City Council of Nairobi (1982-88) IKAR 681 at page 684: "....special damages in addition to being pleaded, must be strictly proved as was stated by Lord Goddard C.J. in Bonham Carter vs. Hyde Park Hotel Limited [1948] 64 TLR 177 thus:“Plaintiffs must understand that if they bring actions for damages it is for thm to prove damage, it is not enough to write down the particulars and, so to speak, throw them at the head of the court, saying, 'this is what I have lost, I ask you to give me these damages.' They have to prove it"

49. On the prayer for the outstanding payment for the works done, I note that although the Plaintiff made this claim, the Plaintiff did not breakdown how the amount was arrived at and this court cannot be subject to conjecture as to the works that were completed and not paid as to discern the source of this claim. This court has stated time and again that a party must plead their case in the clearest terms possible.

50. This Court stated the position succinctly in Mumo Matemu vs. Trusted Society of Human Rights Alliance and 5 others Civil Appeal no 290 of 2012 (2013) eKLR as follows:“(41)We cannot but emphasize the importance of precise claims in due process, substantive justice, and the exercise of jurisdiction by a court. In essence, due process, substantive justice and the exercise of jurisdiction are a function of precise legal and factual claims. However, we also note that precision is not coterminous with exactitude. Restated, although precision must remain a requirement as it is important, it demands neither formulaic prescription of the factual claims nor formalistic utterance of the constitutional provisions alleged to have been violated. We speak particularly knowing that the whole function of pleadings, hearings, submissions and the judicial decision is to define issues in litigation and adjudication, and to demand exactitude ex ante is to miss the point.However, our analysis cannot end at that level of generality. It was the High Court’s observation that the petition before it was not the “epitome of precise, comprehensive, or elegant drafting.” Yet the principle in Anarita Karimi Njeru (supra) underscores the importance of defining the dispute to be decided by the court. In our view, it is a misconception to claim as it has been in recent times with increased frequency that compliance with rules of procedure is antithetical to Article 159 ofthe Constitutionand the overriding objective principle under section 1A and 1B of theCivil Procedure Act(Cap 21) and section 3A and 3B of theAppellate Jurisdiction Act(Cap 9). Procedure is also a handmaiden of just determination of cases. Cases cannot be dealt with justly unless the parties and the court know the issues in controversy. Pleadings assist in that regard and are a tenet of substantive justice, as they give fair notice to the other party. The principle in Anarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle.” (emphasis added).

51. Further, this court notes from the Inspection Report of 22nd March 2017 produced by the Defendant that in the Defendant’s recommendation, the work was satisfactorily and substantially complete. However, there were remaining works that were not done.

52. The plaintiff in the Draft Statement of Final Account admitted that there were works for Ksh.543,055. 12 for the works contracted but not done. In the nature of the contracts, these must be specifically pleaded. The plaintiff cannot throw evidence to the court that this is what I have lost, pay me.

53. In discerning the legal effect of a certificate of completion in the circumstances of this case, I tend to agree with the Court’s reasoning in Cottingham Properties Limited v Tausi Assurance Company Limited & another; Chandreshkumar Madhubhai Babariya & 2 others (Third Party [2019] eKLR as follows:“Accordingly, even if the 2nd defendant had completed the works (which is vehemently denied), the 2nd defendant was still in default of the terms of the building contract by failing to complete the works within the time frame provided or extended under the terms of the contract. This act of default alone entitled the plaintiff to; (a) seek forfeiture of the bond and (b) damages against the 2nd defendant as quantified in the appendix to the building contract. Therefore whilst the certificate of practical completion is evidence of completion of the works by the plaintiff, it was irrelevant for the purposes of the building contract.”

54. There is no dispute that the gate houses were not constructed as stipulated in the bill of quantities and the question arises as to whether the Defendant is entitled to the amount of Ksh. 1,500,000/= provided for that activity.

55. The court find and hold that there was no breach of contract on part of the defendant. They paid for all certificates raised. I have noted that there was no demand for retention after the defect liability period. The plaintiff was instead making a claim for over 80,422,333. 30, which amount is outside the contractual amount.

56. The retention money is clearly now due. The same had however not been demanded.

57. As earlier observed, per the Inspection Report of 22nd March 2017 produced by the Defendant, the work was satisfactorily and substantially complete.

58. Although the Defendant did not issue the Defect’s Liability Certificate due to complaints of incomplete works, there is no counterclaim for any works not done but paid for or any demands against the Plaintiff asserting any amount owing.

59. The plaintiff’s claim is thus baseless and untenable in law. The plaintiff is entitled to the retention money only being what is contractually due to them. There was no prove for the amounts after the 5 certificates. The Plaintiff failed to invoke the court’s equity jurisdiction to quantum Meruit. Having not completed works and having not pleaded the extent of works done but not completed, the plaintiff fails in their quest for 80,422,333. 30. it is completely untenable both in law and in fact

60. The consequence is that I dismiss the entire claim in limine with costs to the defendant. The only rider is that the plaintiff is entitled, and there was no dispute that the retention money is due to them

Determination 61. The upshot is that I make the following orders: -i.The plaintiff’s suit is dismissed in limine with costs of Ksh. 1,206,335 deducted from the retention amount.ii.The balance of the retention amount, that is, KSH. 9,844,523. 80 be paid by 24/11/2023. iii.Should the said payment be made before 24/11/2023, it shall not attract any interest. If the payment is made after 24/11/2023 it shall attract interest from the date of judgment

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 24TH DAY OF OCTOBER, 2023. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGE