Nairobi Golf Hotels (kenya) Limited v Lalji Bhimji & 2 others
The bottom line
#Kenya's Court of Appeal confirmed that a final certificate from an architect binds an employer to pay a contractor unless fraud or collusion is proven.
What this practically means
#Executive summary
#Key legal issues
#Burden on a defendant opposing summary judgment
The defendant must show prima facie bona fide triable issues or an arguable case; a sham defence will not earn leave to defend.
The court restated the principle from Continental Butchery Ltd v Samson Musila Nthiwa and, through it, Lord Halsbury's dictum in Jacob v Booths Distillery Co. The summary procedure exists to eliminate delay and prevent sham defences defeating plaintiffs' rights. Where a defence is filed, leave may be refused if the material before the court shows no prima facie triable issues. The appellant's defence, based on alleged breaches by the architect, did not meet this threshold.
Role of the architect and effect of the final certificate
The architect is the employer's agent and must act impartially; a final certificate issued within his contractual jurisdiction binds the employer absent fraud or collusion, after which the architect is functus officio.
Conditions 1 and 2 of the contract confer power on the architect to issue certificates to secure payment to the contractor. The architect is the agent of the employer (appellant), so any irregularity in the final certificate is a matter between the appellant and the architect, not a defence against the contractor. Under Clause 30, once the final balance is certified the architect is functus officio unless the certificate is impugned under sub-clause (7). The suit against the contractor was therefore ill-advised.
Determination by affidavit in summary proceedings
The appellant's complaint that the judge tried the suit by affidavit only was rejected; the judge properly appreciated the applicable principles.
Counsel for the appellant urged that the judge misdirected himself by embarking on a trial of the suit by affidavit only, disregarding the complexity of the matter. The court did not accept this: it held the learned judge properly appreciated the principles in Camille v Merali and Gupta v Continental Builders Ltd, and that in entering summary judgment he acted properly and could not be faulted.
Legal principles established
#- In a summary judgment application under Order XXXV rule 1, the defendant bears the duty of showing prima facie bona fide triable issues or an arguable case; a shadowy or sham defence attracts summary judgment.
- An architect or certifier under a building contract must act impartially and independently; complaints about the architect's certification are matters between the employer and the architect, not grounds against the contractor.
- Once an architect issues a final certificate within the jurisdiction conferred by the contract, he becomes functus officio and, absent fraud or collusion, the employer cannot resist payment.
Court orders
#- 1.Appeal dismissed with costs
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 1900 of 1995
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court (ruling in H.C.C.C. No. 1900 of 1995)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nairobi Golf Hotels (kenya) Limited v Lalji Bhimji & 2 others", Case Analysis (1997). Civil Appeal No. 5 of 1997. Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.