https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9792

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT ELDORET** **CIVIL CASE NO. 6 OF 2020** **YANG GUANG PROPERTY DESIGN &MANUFACTURINGLIMITED…...PLAINTIFF** **VERSUS** **CHINA WU YI COMPANY (K) LIMITED…………...………………………..DEFENDANT** **JUDGMENT** 1. This suit was commenced by way of the Plaint dated 18/02/2020, filed through **Messrs Jamal Bake & Co. Associates Advocates**, whereof the Plaintiff sought Judgment against the Defendant at the sum of Kshs 29,051,342/-, general damages, interest, and costs of the suit. 2. In the Plaint, it was pleaded that the two parties entered into a Sub-Contract Agreement on or about 12/07/2015 for redesigning and construction of KVDA Plaza Project situated in Eldoret Town for plumbing, fire-fighting installation, electrical installation, and generator works for a consideration of Kshs 39,573,190/-, and also entered into a second Sub-Contract Agreement on 8/01/2016 for windows and door works for a consideration of Kshs 39,813,890/-. It was pleaded further that the Defendant further requested the Plaintiff to carry out steel installation works on handrails and stairs in the same premises works, which the Plaintiff carried out to completion and incurred a total cost of Kshs 13,412,203/-, and which works were additional and thus outside the Bill of Quantities and, as such, attracted additional costs with approval of the contractor for which the Plaintiff was entitled to payment. The Plaintiff pleaded further that, upon the Defendant’s request, it furnished the Defendant with a quotation for a 400 KVA Generator, and later, upon the Defendant’s further request, Plaintiff installed the Generator in the same premises thereby incurring a further cost of Kshs 10,981,000/-. The Defendant contended that it fulfilled its contractual obligations and presented the Defendant with invoices for the works done to completion, and that the Defendant only settled a portion of the amount leaving the outstanding balance of Kshs 29,051,342/- claimed herein. 1. The Defendant, in response, through **Messrs Conrad Maloba & Associates Advocates**, filed the Statement of Defence dated 10/03/2020, in which, although it was admitted that the invoices were received, it was pleaded that the Plaintiff was fully aware of the proviso on tentative costs and re-assessment/re-measurement of the actual works performed and related costs on completion of the contract. According to the Defendant therefore, full payment was made for the actual works performed on site, and which was arrived at after re-assessment and re-measurements, with the full participation of the Plaintiff, and a final account issued. 2. The parties also filed respective Witness Statements, which basically reiterated the positions advanced in the Plaint and the Defence as already set out. They also filed respective bundle of documents. 3. After determination of various interlocutory matters, including a successful Application by the Defendant for setting aside of the ***ex parte*** trial of the suit, and an unsuccessful Application by the Plaintiff for an order for auditing of the project by an independent consultant to ascertain the works performed, the suit finally proceeded to trial in which each side called 1 witness. 4. The Plaintiff’s witness, **Lejia Chen**,testified as **PW1**, on 20/02/2024. Led by the Plaintiff’s Counsel, **Mr. Omwamba**, he then introduced himself as director of the Plaintiff and a Chinese citizen, though living in Kenya. He then adopted his Witness Statement, and also produced the several documents contained in the Plaintiff’s bundle of documents. He reiterated that the Defendant was the main contractor in the said works carried out at the KVDA Plaza in Eldoret, while the Plaintiff was the sub-contractor for plumbing and electrical installations. He testified that in total, there were 4 sub-contracts aggregating a sum of Kshs 103,780,283/- in respect to which the Plaintiff was paid a sum of Kshs 74,728,941/- leaving a balance of Kshs 29,051,342/-, whose payment was due at the hand-over made in December 2016, but which remains unpaid to date. He stated that since the hand-over, there has been no complaint of any nature even after expiry of the 6 months’ defects liability period. Under cross-examination by **Mr. Maloba**, Counsel for the Defendant, the witness was basically taken through clauses of the contracts, the figures in the quotations and invoices, and also the payments made. He agreed that payment would be made after approval by the Engineer of the Works and Certificates issued, and explained that approvals were made via emails. 5. The Defendant’s witness, **DW1**, **Zhang Runxiang**, testified on 17/07/2025. He introduced himself as the Manager at the Defendant’s Engineering Department. Led by **Mr. Maloba**, Counsel for the Defendant, he, too, adopted his Witness Statement and produced the Defendant’s bundle of documents. Under cross-examination by **Ms. Odhiambo**, he conceded that he had not produced any Report showing the joint assessment he referred. He, too, was taken through the figures in the quotations and invoices, and also the payments made. In re-examination, he stated that he never approved the invoices relied in support of the Plaintiff’s claim in this suit, and explained that before the Defendant made the payments, teams from both the two sides would first carry out joint inspection of the works. 1. At the close of the trial, the parties filed written Submissions. The Plaintiff’s Submissions is dated 24/10/2025, while the Defendant’s is dated 11/02/2026. **Plaintiff’s Submissions** 1. Counsel for the Plaintiff, after recounting the background of the case and reciting his client’s case, reiterated that by written contracts, the Defendant sub-contracted the Plaintiff to perform several works at Kshs 39,573,190/- and 39,813,890/-, respectively, at the KVDA Plaza in Eldoret, and subsequently, also two unwritten contracts to carry out additional steel installation works on handrails and stairs in the same premises. He reiterated that the quotations for these two unwritten contracts were requested and supplied via emails, and were accepted by the Defendant. He further reiterated that by way of another email, the Defendant requested the Plaintiff to install a stand-by Generator, upon which a quotation was supplied and accepted by the Defendant by way of another email. He reiterated that although the Plaintiff performed the works to conclusion, the Defendant has still not settled the balance due. He observed that while the Plaintiff insists that it issued two invoices to the Defendant who paid the same but left a balance of Kshs 29,051,342/-, the Defendant contends that the works were re-assessed or re-measured and payments made leaving only a balance of Kshs 69,284.48. Counsel pointed out that the fact that the aggregate sums payable under the two written sub-contracts was Kshs 79,387,080/-, out of which the Defendant, in its Witness Statement, claims to have paid Kshs 74,746,481/-, is clear indication of admission that a balance of Kshs 4,640,598.48 is still due, and that the figures are supported by the “Summary of Works Done” signed by the Defendant’s Site Engineer and Project Manager. Counsel also submitted that the Defendant has not provided any evidence to show that it has paid the amount of Kshs 13,412,203/-. He also observed that the Defendant does not deny the existence of the contracts and/or the works performed, and urged that the alleged re-assessment or re-measurement has not been demonstrated. According to him, the Plaintiff had discharged its burden of proof and the burden then shifted to the Defendant to show that the Plaintiff is not entitled to the payments, which burden, he submitted, the Defendant however failed to discharge. Counsel also cited several authorities to support the various limbs of his submissions. **Defendant’s Submissions** 1. Counsel for the Defendant, on his part, submitted that while there is no dispute on existence of the executed written sub-contracts, the Plaintiff has failed to place before the Court the commercial and industry context under which the contract sums operated. He submitted that the contract sums included prime costs and provisional sums, which sums are tentative and subject to re-assessment based on actual works executed on site upon completion, which facts he urged, are the standard practice in the building and construction industry. He contended further that the contact sums were subjected to re-measurement and re-assessment, and the Final Account shows that the re-assessment or re-measurement was conducted with full participation of the Plaintiff and the final works certified at Kshs 74,815,775.98, which was the amount approved by the Employer, KVDA, and is thus binding. He insisted that the Defendant having paid the sum of Kshs 69,284,48, the balance outstanding is only Kshs 4,658,159/-, for which the Defendant has always invited the Plaintiff to collect the cheque. He, too, cited several authorities to support the various limbs of his submissions. **Determination** 1. This is a rather straight-forward case since existence of the subject sub-contacts, performance of the works covered, and also the aggregate amounts of money paid so far are not in dispute. What is in dispute is the extent of the works done, and therefore whether the Plaintiff is entitled to any further payments. 2. The major issue that calls for determination is therefore “**whether the works performed by the Plaintiff were re-measured or re-assessed resulting into certification for payment of amounts lesser that the contractual sums**”. 3. The sub-contracts, contractual amounts agreed, and payments made so far, according to my understanding of the Plaintiff’s case, can basically be summarized as follows: | | | | | | --- | --- | --- | --- | | **i)** | Written contract dated 12/07/2015 | Plumbing, fire-fighting, electrical installations, and generator works | Kshs 39,573,190.00 | | **ii)** | Written contract dated 8/01/2016 | Windows and door works | Kshs 39,813,890.00 | | | **Sub-total** | | **Kshs 79,387,080.00** | | **iii)** | Unwritten contracts requested and approved via emails exchanged between March 2016 and July 2016 | Steel installation on stairs and handrails | Kshs 13,412,203.00 | | **iv)** | Unwritten contract requested and approved via emails exchanged between February 2016 and July 2016 | Generator installation | Kshs 10,981,000.00 | | | **Gross total** | | **Kshs 103,780,283.00** | | | Amount paid to date | | Kshs 74,728,941.00 | | | Alleged outstanding balance | | **Kshs 29,051,342.00** | 1. The Defendant’ defence is, in the other hand, that the contractual sums were subject to the proviso on tentative costs and re-assessment/re-measurement of the actual works performed and related costs on completion of the contract. The Defendant’s witness, **DW1**, claimed that before the Defendant made the payments, teams from both the two sides would first carry out joint inspection of the works. According to the Defendant, full payment was made for the actual works performed, and which was arrived at after re-assessment and re-measurements, with the full participation of the Plaintiff, and a final account issued. He however conceded that he did not produce any Report showing the joint assessment he had alleged. 2. Counsel for the Defendant, in his Submissions, contended that the Plaintiff has failed to place before the Court the commercial and industry context under which the contract sums operated, and that the contractual sums included prime costs and provisional sums, which sums are tentative and subject to re-assessment based on actual works executed on site upon completion, which facts he urged, are the standard practice in the building and construction industry. He contended further that the contact sums were subjected to re-measurement and re-assessment, and the re-assessment or re-measurement was conducted with full participation of the Plaintiff and the final works certified at Kshs 74,815,775.98, which was the amount approved by the Employer, KVDA, and is thus binding. 3. As aforesaid, the Defendant does not deny the existence of the contracts and/or the works performed. My one simple observation, as also correctly pointed out by the Plaintiff’s Counsel is that the re-assessment or re-measurement alleged by the Defendant, joint or otherwise, has not been demonstrated at all. No documentary evidence thereof of any kind, or even details on when it was so conducted, or who was in attendance was disclosed. How then did the Defendant expect the Court to uphold or even verify the one and only defence it had preferred? 4. Although it is the alleged that it was a contractual term, and also standard practice in the building construction industry that payment for the works was only to be made after approval by the Engineer of the Works and Certificates thereto issued, no provisions of the contracts to that effect were identified or pointed out, nor was the alleged “standard practice” even demonstrated. The authenticity and source of the Certificates produced is also unverifiable since the copies produced do not even disclose the author thereof. The procedure and steps used in arriving at the figures cited therein, and by whom, are also not disclosed. I therefore have no justification to hold the same as being biding on the Plaintiff as alleged by the Defendant. 5. Although it is indeed common, or even standard practice in the building construction industry that payment for works done is ordinarily only to be made after assessment and approval by the appointed experts, and a Certificate thereto issued, where there is an executed contract as herein, it must be demonstrated that the parties actually agreed to also adopt such standard practice over and above the executed contract. 6. As correctly submitted by the Plaintiff’s Counsel, I agree that the Plaintiff discharged its burden of proof and the burden then shifted to the Defendant to demonstrate that the Plaintiff is not entitled to the payments, which burden, I find, the Defendant woefully failed to discharge. 7. I will therefore grant Judgment in favour of the Plaintiff as prayed in the Plaint, save for the prayer for general damages which has neither been canvassed, or demonstrated in any way. In any case, general damages is, generally, not awardable for breach of contract. **Final Orders** 1. In view of the above findings, I enter Judgment in favour of the Plaintiff against the Defendant in the following terms: 2. Kshs 29,051,342/- 3. Interest on the above sum of Kshs 29,051,342/- at Court rates from the date of filing suit. 4. Costs of the suit. **DELIVERED, DATED AND SIGNED AT NAIROBI THIS 3RD DAY OF JULY 2026** **………………...……..** **WANANDA JOHN R. ANURO** **JUDGE** **Delivered in the presence of:** | | | | --- | --- | | **Ms. Asasha h/b for Mr. Bake for the Plaintiff** | | | **Ms. Obuya for the Defendants** | | | **Court Assistant: Brian Kimathi** | |