[2006] KEHC 1974 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MALINDI

Civil Suit 85 of 2001

WILLIAM KAZUNGU KARISA…………………..............…………PLAINTIFF

VERSUS

COSMUS ANGORE CHANZERA………….............…………RESPONDENT

JUDGMENT

In March, 1994 the plaintiff engaged the services of the defendant, who is a contractor to extend and renovate a residential house standing on plot No.363/51, Malindi. In this regard a contract was executed on 25th March, 1994 in which it was agreed that at a cost of Kshs. 2. 2m the defendant shall complete the specified works and hand over the project within a period of eight months from the date of commencement, namely, 28th March, 1994. It was also a term of that contract that the defendant shall provide both the labour force and building materials. Further, it was agreed that the plaintiff would and indeed did pay to the defendant Kshs. 450,000/= as a deposit with the balance to be settled as would be agreed by the parties. Specifically, the defendant was required to

i) build a flat on the existing house, to consist of 4 bedrooms, 2 dining rooms, separate toilets, 2 bathrooms with showers and 2 separate kitchens.

ii) Finish the floor, windows painting and plumbing.

According to the schedule of payment, after the initial deposit of Kshs. 450,000/=, Kshs. 1m, it was agreed, would be paid on or before the end of April, 1994. In addition the balance would be paid by a monthly instalment of Kshs. 45,000/= till payment in full with effect from end of May, 1994.

This contract was varied by another one signed on 8th September, 1994, which was expressed to be in connection with the contract sum only. It provided that on the date of its execution the defendant received Kshs. 1,610,000/= being part payment of the total cost of Kshs. 2. 2m, leaving a balance of Kshs. 590,000/=. It would appear that the parties also agreed in this contract to add to the original contract sum Kshs. 737,000/=. There was yet another agreement dated 22nd April, 1995 in which it was mutually agreed that the sum of Kshs. 602,000/= would be utilized in the completion of the remaining works. This brought the contract sum to Kshs. 2,802,000/=.

At some point the parties disagreed and the plaintiff instituted these proceedings claiming Kshs. 1,086,000/= made up as follows;

i) money unaccounted for Kshs. 286,000/=.

ii)Cost of undone work - Kshs. 700,000/=

iii)Overpayment Kshs. 100,000/=

He also seeks general damages for breach of contract, costs of the suit and interest.

The defendant, has of course denied liability. He has argued in his defence that he was stopped by the plaintiff from fully executing the works.

At the hearing, the plaintiff’s attorney, who is also his wife, Mrs.Selita William Karisa PW1, provided the details of payments that were made through her by the plaintiff, who is living and working in Switzerland, to the defendant. The plaintiff’s brother, Alex Karisa Mwabuza (PW2) supervised the construction on behalf of the plaintiff.

After disagreeing with the defendant, the plaintiff engaged Riziki Chai Kiriba (PW 3) to complete the remaining works. For this he was paid Kshs. 165,000/=. That was in September 1995.

In December, 1995 and February, 1996 the plaintiff engaged the services of a valuer, Ngotho Wathome Co. Ltd, that submitted a report in February, 1996. Briefly that report indicated that the work completed by the defendant constituted, on the ground floor, 60% and 49% on the 1st floor. The report estimated the value of the executed works at Kshs. 1,800,000/= while the remaining works was estimated at Kshs. 700,000/=. The defendant in his testimony, while admitting that the plaintiff had paid him Kshs. 2,331,463. 60 at the time they disagreed blamed the latter for the discharge of the contract. According to him, the payment was intermittent as it depended on the flow of the plaintiff’s income. Further that the contract sum was not fully disbursed. These two factors delayed the execution of the works within the contract period. Secondly The defendant also asserts that while still engaged in the construction of the house, the plaintiff unilaterally and without notice halted the works and ordered him out of the site.

That constitutes the opposing positions of the parties. I have considered the same as well as submissions by their learned counsel. I find as a fact that the parties contracted for the renovation and expansion of the plaintiff’s suit property. It is also a fact that in furtherance of this intention three contracts were entered into. There is no dispute that under the contracts, the plaintiff paid some money to the defendant.

What the court is called upon to decide is whether the defendant was in breach of the contract and whether, as a result the plaintiff lost Kshs. 1,086,000/=. The three documents forming part of the agreement will provide the answers to these questions.

It is the plaintiff’s case in paragraph 6 of the plaint that the defendant failed to execute the works within the contract period.

What was the contract period? According to the first agreement dated 25th March, 1994 the defendant was expected to complete the renovations within 8 months from the date of commencement, namely 28th March, 1994. Eight months from this date would take him to 29th November, 1994.

However, on 8th September, 1994 the original agreement was modified and an additional Kshs. 737,000/= agreed to be added on to the original contract sum. This figure was further varied downwards on 22nd April, 1995 to Kshs. 602, 000/=

It is worth noting that in both the agreement of 8th September, 1994 and the one of 22nd April, 1995 no mention was made of the contract period.

Of course the last agreement was executed four months after expiration of the eight month’s contract period.

The basic rule of the law of contract is that the parties must perform their respective obligation in accordance with the terms of the contract executed by them. For instance, the contract must be performed at the time and place agreed upon. Where no specific period for the performance of the contract is agreed then it must be completed within a reasonable time, which in turn will depend on the circumstances of the particular situation. However, when a specific dated is mentioned, then time becomes of the essence and completion must be within that date as it becomes a condition which goes to the root of the contract.

In Sagoo V Dourado (1983) KLR 365, quoting from 9 Halsbury’s Laws (4th Edn) P 338 para 481, with approval, it was held that;

“The modern law in the case of contracts of all types, may be summarized as follows.

Time will not be considered to be of essence unless:

(1) the parties expressly stipulate thatconditions as to time must be strictly complied with

(2)the nature of the subject matter ofthe contract or the surroundingcircumstances show that timeshould be considered to be of theessence, or

(3)a party who has been subjected to unreasonable delay give notice to the party in default making time of the essence”.

Applying the above test to the instant case, the parties intention at inception of the contract was clear; the defendant was to execute the works within 8 months. He was expected to source for manpower and pay them their wages. He was also to procure building material. To enable him to do this, the plaintiff had contracted to disburse funds. It would appear things went on according to schedule until the parties entered into the subsequent contracts.

What became of the 8 months’ completion period when the parties signed subsequent contract of 22nd April, 1995?

Law, JA’s words in Panesar V Popat, (1968) EA 17 provides the answer. He stated;

“The law on the subject was expressed in the following terms by Newbold, J.A. (as he then was) in Nurdin Bandali V Lombank Tanganyika Ltd. (1968) EA at P 316:

‘ It may well be that where a provision in a contract as to time has been waived by an amending contract, it would not have been open to one of the parties to the contract unilaterally to reintroduce it in its original form. But where one party to a contract is in default for an unreasonable time it is always open to the other party to serve a notice requiring completion within a reasonabletime”.

The original time having expired, and the plaintiff having failed to terminate the contract on that ground, he was deemed to have waived the provision as to time and engaged the defendant in a totally new agreement where time was not, in their own intention to be of the essence. Of course the plaintiff was at liberty to serve a notice on the defendant if he thought the delay was unreasonable.

Secondly, the surrounding circumstances in this case show that time was not of the essence. From the wording of the last contract there was no hurry in executing the works. The pace depended upon the flow of the plaintiff’s income. As a matter of fact between the time that last contract was signed to the time the defendant was discharged, there is no evidence that the sum of Kshs. 602,000/= specifically set aside for the completion of the remaining works was disbursed. But even before this contract was entered into, it is clear from the testimony of PW1 that she paid the defendant the sixth instalment of Kshs. 64,000/= on 3rd December, 1994. Kshs. 365,000/= was paid a 30th March 1995, about one month before the last contract was executed.

From the foregoing, I do not think the defendant can be accused of exceeding the stipulated completion period. Regarding payments, there is consensus at least in the oral evidence that the contract sum was Kshs. 2,802,000/=. The defendant conceded having received a total of Kshs. 2,331,463. 06 out of the contract sum. He also conceded that the works were not complete.

On 17th September 1995 PW3 – Riziki was engaged at Kshs. 165,000/= to complete the remaining works.

According to the valuation report, PW4 Ngotho Wathome, instructions to carry valuation was received from Ms. Kupalia & Co. Advocates vide their letters dated 18th December, 1995 and 1st February, 1996. The report itself is dated 12th February, 1996. In it the value of the outstanding works is indicated as Kshs. 700,000/=. I find this confusing. The remaining works were undertaken by Riziki at Kshs. 165,000/= (representing labour charges) before the valuation. Riziki confirmed that he completed the outstanding works and handed over the project. That the plaintiff provided building material. No evidence was adduced of how much the material costs. Unless it is shown that the plaintiff spent Kshs. 435,000 on material, the court has no basis to conclude the plaintiff incurred Kshs. 700,000/= to complete the remaining works. Further, as I have noted, Kshs, 602, 000/= was to be paid under the new contract. There is no evidence that it was indeed paid to the defendant. The evidence on damages is disjointed and confused and cannot be relied upon. Reiterating the words of Lord Goddard, C.J. in Bonham Carter V HydePark Hotel Ltd; (1948) 64 TLR 177, Sheridan, J said

“On the question of damages. I am left in an extremely unsatisfactory position. Plaintiffs must understand that if they bring actions for damages it is for them to prove their damages: 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. The evidence in this case with respect to damages is extremely unsatisfactory”

In the result I find that there was no breach of contract by the defendant. Over payment and other monetary losses, if any, have not been proved. The suit is dismissed with costs.

Dated and delivered Malindi this 3rd day of March, 2006.

W.OUKO

JUDGE

3. 3.2006

Coram

W. Ouko, J

Mr.Angima for defendant.

Mr.Ole Kina for Mr. Wachira for plaintiff.

CC. Matu

Ruling delivered.

W.OUKO

JUDGE