1.Interlocutory judgment was entered on 28th February, 2019 against the National Executive Committee Members of Kenya Civil Servants Welfare Association, the 1st defendant. The case against the 2nd defendant Hydro Developers Ltd was withdrawn by consent on 16th March, 2022.
2.The plaintiff, Gesa Building & Civil Engineering Ltd seeks judgment for Kshs.88,722,50/= with interest at court rate until payment in full.
3.The plaintiff through its pleading alleges that the 1st defendant with the authority of the 2nd defendant agreed to award the plaintiff a contract to construct a boundary/perimeter wall round about property LR NO. 4927 situated in Kamiti road, Kiambu which property is registered in the name of the 2nd defendant. The plaintiff alleged that the contract was evidence by correspondence between it and the 1st defendant. That pursuant to that agreement the plaintiff proceeded to mobilized for the anticipated works by appointing project consultants to prepare inter alia bills of quantities and architectural drawing. That, however on a site visit in September, 2016 the plaintiff established that 2nd defendant had reneged the contract by causing pieces of land to be subdivided into plots which were being offered for sale to the general public.
4.The plaintiff further pleaded that as result of the representation made to it, it had incurred expenses, loss and damage in the sum of Kshs.88,722,500. The particulars of that claim were broken as follows:-i.Contractor’s mobilization fees - Kshs.50,000,000ii.Consultant’s fee and disbursements - Kshs.27,215,000iii.City County Government approval fees - Kshs.2,500,000iv.NEMA approvals and reports - Kshs.1,705,000v.NCA Levies - Kshs.1,502,500vi.Cash advance/facilitation fee: -To 1st defendant’s clerk of works - Kshs.800,000vii.Miscellaneous expenses in preparation - Kshs.5,000,000Total = Kshs.88,722,500
5.The plaintiff finally, in its plaint, “prays for judgment against the defendant” for the total loss it alleges it incurred. Note that the defendant does not identify whether judgment is sought against 1st or 2nd defendant.
6.The plaintiff formally proved its case against 1st defendant through the evidence of George Ngure Chira the Managing Director of the plaintiff.
Discussion and Analysis
7.As stated before the plaintiff withdrew the case against the 2nd defendant. This withdrawal in my view raises challenges to the plaintiff’s case as pleaded. This is because the plaintiff pleaded it was the 2nd defendant who reneged the alleged contract, not the 1st defendant. Since there is no allegation of the 1st defendant reneging the contract how can it be held liable for the loss the plaintiff alleges it incurred? That is the difficulty one of the many I find that plague this case.
8.The plaintiff’s case is that the 1st defendant on authority of the 2nd defendant awarded it contract to construct perimeter wall. By that pleading the plaintiff admitted that the relationship between the 1st defendant and the 2nd defendant was one of principal and agent. That is the 2nd defendant was the principal while the 1st defendant was the agent. In this regard, I shall site what was considered in the case Victor Mabachi & Another Vs. Nurturn Bates Ltd (2013) eKLR thus:-
9.It is to be noted that the principle of common law is that an agent should not be sued where there is a disclosed principal. There is therefore no cause of action against the 1st defendant since it would be contrary to that common law principle that the principal, the second defendant, is a disclosed principal. It will be recalled that the case against the 2nd defendant was withdrawn. There is no factors in the pleadings vitiating the liability of the disclosed principal and the suit against 1st defendant cannot stand, it is unwarranted.
10.Although the plaintiff pleaded that it was awarded the subject contract by the 1st defendant at the authority of the 2nd defendant, the registered owner of the subject property, the plaintiff did not prove that relationship. Consider what was stated in the case Lucy Nungari Ngigi & 4 others Vs. National Bank Kenya Limited & Another (2015) eKLR thus:-
11.Over and above that discussion I had difficulty appreciating what the plaintiff’s case entailed.
12.The plaintiff relied on correspondences as proof the contract awarded to it. The correspondence started with the plaintiff writing to the 1st defendant, by letter dated 24th November, 2015, where the reference is the subject property and it stated in that letter as follows:-
13.The 1st defendant wrote to the plaintiff letter dated 9th December, 2015 confirming it was authorized by 2nd defendant to appoint and ward the tenders for perimeter wall. By yet another letter dated 17th December, 2015 1st defendant wrote to the plaintiff informing it that the National Executive of the council of 1st defendant had resolved to offer the plaintiff the contract subject to performance bond from an insurance or bank and further stated construction would commence after the drawings, concept, NEMA Certificate and BOG is approved by the authorities. It is not clear whether those conditions were met.
14.The plaintiff wrote to the 1st defendant an undated letter stating:-
15.By letter of 15th February, 2016 it would seem the all clear had been given to plaintiff to start any work because this is what it stated to the 1st defendant:-
16.1st defendant responded to that letter by its letter dated 17th February, 2016, where the 1st defendants stated:-
17.In all those correspondence and many others, which I did not reproduce here, it is clear both plaintiff and 1st defendant were contemplating they would enter into a written contract setting out the terms they agreed. There is no such agreement before the court. In my view, the plaintiff failed to prove a definite offer made. Indeed, I am left wondering whether there existed a contract at all. A case in point is City Council of Nairobi Vs. Wilfred Kamau Githua t/a Githua Associates & Another (2016) eKLR thus:-
18.Additionally I failed to appreciate what the plaintiff had done to seek compensation as it does in this case. The plaintiff at the hearing stated:-
19.Later the plaintiff stated that there was a certain claim it was foregoing because the project had not taken off.
20.On the whole and for the reasons set out above, the plaintiff’s case fails it is devoid of merit.
21.In the end and bearing the above discussion, the judgment of the court is that the plaintiff’s case is dismissed with no orders as to costs since the case was undefended.