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|Case Number:||Civil Suit 521 of 2011|
|Parties:||Kamau James Gitutho T/A Gitutho Associates,Harry Njoroge Gakuya T/A Gakuya & Associates,Maxcad Consulting Engineers Limited & Primeconsult Engineers Limited v Multiple ICD (K) Limited|
|Date Delivered:||17 Oct 2013|
|Court:||High Court at Mombasa|
|Judge(s):||Mary Muhanji Kasango|
|Citation:||Kamau James Gitutho T/A Gitutho Associates & 3 others v Multiple ICD (K) Limited  eKLR|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
CIVIL SUIT NO. 521 OF 2011
KAMAU JAMES GITUTHO T/A GITUTHO ASSOCIATES …...... 1ST PLAINTIFF
HARRY NJOROGE GAKUYA T/A GAKUYA & ASSOCIATES ... 2ND PLAINTIFF
MAXCAD CONSULTING ENGINEERS LIMITED ………….....… 3RD PLAINTIFF
PRIMECONSULT ENGINEERS LIMITED ………..…….…......…. 4TH PLAINTIFF
V E R S U S
MULTIPLE ICD (K) LIMITED ………………………..………........… DEFENDANT
“1. THAT the plaint be struck out and the suit be dismissed with costs for-
P.O. Box 41391,
MULTIPLE ICD (KENYA) LIMITED
Tel: +254 (020) 39 44 000
Fax: +254 (020) 39 44 999
Gitutho Associates, P.O. Box 82853-08100, Mombasa
Gakuya Associates, P.O. Box 74250-00200, Nairobi
STRUCTURAL/CIVIL ENGINEERS/GEOLOGICAL ANALYSISTS
Maxcad Consulting Engineers, P.O. Box 40482-80100, Mombasa
Primeconsult Engineers, P.O. Box 1200-90130, Mombasa
RE: PROPOSED MAKUPA CAUSEWAY ICD
FOR M/S MULTIPLE HAULIERS (E.A)
LETTER OF COMMISSIONING
We hereby confirm your appointment as the Consulting Team for our above project.
Your terms of engagement will be as per our discussions and agreement with Mr. Gakuya of Gakuya & Associates on October 26, 2007 in our offices.
The total consolidated fees for the Consulting Team was agreed at 8.50% of the cost of the project, plus Value Added Tax and disbursements.
Your fees and disbursements will be paid directly the Employer to each team member against tax invoices raised in stages as recommended by the Team Member’s respective Registration bodies, and will be paid to each Team Member in the following proportions relative to the total agreed fees:-
Team Member/Consultant Fees %
Gitutho Associates, Architects 3.40%
Gakuya Associates, Quantity Surveyors 1.99%
Maxcad Consulting Engineers, Civil & Structural Engineers 1.98%
Primeconsult Engineers, Electrical & Mechanical Engineers 1.13%
TOTAL FEES AGREED 8.50%
The Employer, M/s Multiple Hauliers (E.A) Ltd wish to emphasize the need for the Project Team to abide by the programme agreed during the Employer/Consultants’ meeting held in our offices on October 19, 2007.
Please feel free to seek for any information and documents you may require from the Employer to enable you to abide by the agreed programme.
Could you please indicate your acceptance of the commission by signing on the copy of the enclosure letter attached and dispatching it back to us for my records.
MULTIPLE ICD (KENYA) LIMITED
We accept the commissioning under the terms indicated above.
Signed: …………………………….. Date: …………….…………….
In support of the application the Defendant deponed through its legal officer as follows-
“3. THAT the document dated 02/11/2007 clearly shows
that the contract if any was between the 1st, 2nd, and
4th Plaintiffs and a company known as Multiple
Hauliers (EA) Limited. Annexed and marked as ‘J-1’ is
a copy of the said contract.
10. THAT the suit herein cannot be sustained against the
Defendant because he is not a party to the alleged contract.”
Our Ref: GA/435/70/2010 Date: 11th May 2010
The General Manager
Multiple I.C.D (Kenya) Ltd
P.O. Box 41391-00100
Attn: Mr. Shreyesh Dave
RE: MULTIPLE I.C.D PROJECT AT MAKUPA CAUSEWAY – MOMBASA
This letter is to thank you for having availed yourself together with your Managing Director; Mr. Rajinder S. Baryan for a meeting with the project consultants at our offices on Saturday 8th May 2010.
During the meeting, we confirm that the following was agreed:
1) In view of the enhanced project size vis-à-vis what had been previously contemplated, both parties agreed that the total fees for all the consultants will be 6.75% of the project cost reduced from the original 8.5%.
2) 75% of the fees which becomes due at tender award stage will be based on a total project cost of Kshs. 3,638,829,626/-.
3) Supervisory fees will be 25% of 6.75% of the actual works contracted, and paid in stages as the project construction progresses.
4) You offered to pay a portion of the consultants’ fees in the sum of Kshs. 25 million + VAT, with the balance of the fees being paid in 12 equal instalments to which the consultants had offered a counter proposal of 40% of the fees (approximately Kshs. 73 million) being paid now, with the balance payable in equal installments over a period of 6 months.
5) We finally agreed that you would pay Kshs. 35 million + VAT, Kshs. 25 million + VAT being payable immediately while Kshs. 10 million + VAT will be paid within one month.
It was further agreed that you would revert to us with regard to the payment distribution proposal.
We do attach herewith the Quantity Surveyor’s tabulation of the involved figures for your records.
Separate fee notes from the consultants will follow under cover of this office based on Kshs. 35 million + VAT, which can split and pay as per your offered proposal, without attracting any VAT penalties.
Apart from the above we also agreed with regard to the project as follows:-
Arch. Kamau J. G. Njendu
Principal: Gitutho Associates
Cc Gakuya Associates
“There are two aspects of the common law doctrine of privity: no one except a party to a contract can acquire rights under it and no one except a party can be subjected to liabilities under it.”
-VS- AUTOMOBILE ASSOCIATION OF KENYA & ANOTHER eKLR where Justice Ochieng stated-
“True, if one is not a party to a contract, he cannot seek to enforce it. He could not do so even if the contract was made for his benefit.”
The Defendant cited that case to support its submission that the Plaintiff could not sue it on the contract of 2nd November 2007.
“In my judgment, the summary remedy of striking out is applicable whenever it can be shown that the action is one which cannot succeed or is in some way an abuse of the process of the Court or that it is unarguable.”
Dated and delivered at Mombasa this 17th day of October, 2013.