Peter Njoroge V Ess Builders & Company  EKLR
|Civil Case 3497 of 1981||02 Jul 1982|
High Court at Nairobi (Milimani Law Courts)
Peter Njoroge v Ess Builders & Company
Peter Njoroge v Ess Builders & Company  eKLR
Peter Njoroge v Ess Builders & Company
High Court, at Nairobi
July 2, 1982
Civil Case No 3497 of 1981
Debt - recovery of debt - house construction - delayed payment - written acknowledgement of indebtedness - written satisfaction with work done - cheques dishonoured - delay - waiver of delay.
Res judicata - meaning of res judicata - separate suits in respect of claim from same transaction - dishonoured cheques - separate suits brought in respect of each cheque - no counterclaim raised - fresh suit brought by defendant - claim in respect of building contract - whether same issues substantially in issue - whether fresh suit res judicata - Civil Procedure Act (Cap 21) Section 7.
The plaintiff had hired the defendant company to take over and continue the completion of a house that he had started to build on his land through the services of other contractors. The defendant signed a contract with the plaintiff for the construction of the house at a stated price of Kshs 350,000 and commenced the work in June 1978. The date for practical completion of the work was stated to be October 30, 1978.
The plaintiff did not make prompt settlement of the construction charges as and when various payments fell due. Some of the payments were made in instalments and when the defendant company complained and threatened to cease the work and to sue for the balance, it was persuaded to complete the construction so that the plaintiff would pay it out of the proceeds of rent. The contractor completed building the house in October 1979.
The defendant company, being apprehensive, instructed their lawyers to draw a document evidencing this state of affairs and the document was signed by the plaintiff. The document, titled ‘Irrevocable Letter of Authority’, contained an acknowledgement of the plaintiff’s indebtedness to the defendant in the amount of Kshs 210,300 arising out of the construction of the house. The document also set out the particulars of the instalment plan for the settlement of the debt. The plaintiff later signed another document certifying his occupation of the house and his satisfaction with its construction.
The plaintiff issued four cheques all of which were dishonoured upon presentation. In respect of three of these cheques, the construction company had filed separate suits in the Magistrate’s Court and obtained judgment in respect of all of them. As regards the remaining cheque, the defendant filed a suit in the High Court to which the defendant filed a defence. Though the defence contained allegations of poor workmanship and refusal to enable the plaintiff’s occupation against the construction company, it did not raise any counterclaim.
After the construction company had obtained summary judgment, an intended appeal was abandoned and the plaintiff filed the present suit against it averring, among other things, that he had suffered loss by virtue of the defendant’s failure to complete the construction work within the time agreed in the contract.
In its defence, the defendant denied any liability for any delay and further alleged that in any case, the delay had been waived and that the plaintiff was estopped from claiming against any defects in the construction. Finally, the defendant pleaded res judicata by virtue of the previous suit.
1. The matters urged in the present case related to an action on the building contract and these matters were not directly and substantially in issue in the previous suit, which was an action on a dishonoured cheque. The present suit was therefore not res judicata by virtue of the previous suit.
2. That there were frequent stoppages in the construction work occasioned by the plaintiff’s failure to make prompt payment after which the work would resume following an agreement, showed that time was not of the essence in the contract and the plaintiff could not therefore claim against the defendant for any delay.
3. The plaintiff had, by signing the ‘Irrevocable Letter of Authority,’ waived his right to claim from the defendant in respect of any defects in the completed house.
Suit dismissed with costs.
Karshe v Uganda Transport Co Ltd  EA 774 Applied
Civil Procedure Act (Cap 21) Section 7