SEVENTH DAY ADVENTIST CHURCH ) EAST AFRICA LTD & 2 OTHERS V MASOSA CONSTRUCTION COMPANY LIMITED [2012] KECA 43 (KLR)
The bottom line
#The Court of Appeal dismissed the SDA Church's appeal, holding it must pay the contractor the outstanding Shs.5.1 million because its own delayed payments caused the project's cost escalation.
What this practically means
#Executive summary
#Key legal issues
#Duty of the first appellate court
The Court of Appeal, as first appellate court, properly re-evaluated the evidence and agreed with the trial Judge's findings
The Court framed its task as re-evaluating the evidence before the High Court on both facts and law. It found the trial Judge had analysed the evidence extensively, noted the executive director's cross-examination admitting the church lacked funds, and concluded the delay and cost escalation fell squarely on the church. Findings of fact on credibility were upheld because there were no reasons to depart.
Variation of the contract and escalation of the contract sum
The trial Judge was entitled to find the original written contract was varied by an oral agreement and by the lengthened performance period, raising the cost from Shs.17,102,152/20 to Shs.19,064,160
The extension from 72 to 176 weeks was mutual and arose from the church's failure to pay the contractor in time, causing cost escalation. The architect (3rd appellant) failed to produce a final account, and Masosa's quantity surveyor's itemised claim was never challenged. The trial Judge's quoted findings, including that the defence was a mere denial and the original contract was varied orally, were upheld as findings of fact.
Interest at 35% per annum
The ground of appeal on interest failed because the trial Judge awarded interest at court rates, not 35% per annum, and there was no cross-appeal on interest
The appellants argued there was no agreement to pay interest at 35% per annum, but the Court observed the Judge never in fact allowed that rate, having awarded interest from the date of the plaint at court rates. Since there was no cross-appeal on the issue, the ground was a non-issue and could not succeed.
Legal principles established
#- A first appellate court must re-evaluate the evidence before the trial court and ascertain whether the Judge reached the correct conclusion on both facts and law
- An appellate court will not interfere with findings of fact of the trial court absent reasons to depart from them
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal awarded to the respondent
- On appeal from
- High Court of Kenya at Kisii
- H.C.C.C. No. 6 of 2002
- Jurisdiction invoked
- First appellate jurisdiction over the High Court (duty to re-evaluate evidence, facts and law); no specific constitutional/statistical provision quoted in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Agricultural Finance Corporation & another v Mwangi (Miscellaneous Application E032 of 2025) [2026] KEELC 1944 (KLR)[2026] KEELC 1944 (KLR)26 Feb 2026
Cite this brief
#Cite this brief
Caselaw, "SEVENTH DAY ADVENTIST CHURCH ) EAST AFRICA LTD & 2 OTHERS V MASOSA CONSTRUCTION COMPANY LIMITED [2012] KECA 43 (KLR)", Case Analysis (2012). Civil Appeal 157 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/43/eng@2012-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.