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Case Brief · caselaw.co.ke
Court of AppealAllowedCivil Appeal No. 188 of 2013

Davidson Kariuki Maina t/a Bills Consults v Bobmil Properties Limited [2019] KECA 720 (KLR)

Court of Appeal of Kenya
24 May 2019
4,074 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that only the professional board can punish misconduct, so the quantity surveyor recovered his full unpaid fees of Kshs. 7,131,431.

What this practically means

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Executive summary

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The appellant, a qualified Quantity Surveyor trading as Bills Consults, was orally engaged by the respondent in October 1997 to prepare Bills of Quantities for a proposed flats and health club development in Kampala, Uganda. He issued a pre-tender fee note based on an estimated project cost of Ksh.220 million (including a 25% discount), and later a revised and final fee note of Ksh.7,131,431 based on the lowest accepted tender figure. The respondent rejected the demand, offering only about Ksh.25,000 for disbursements. The High Court (Sitati, J.) found the contract existed and was performed but dismissed the claim, holding it not proved on a balance of probability because the fee note contravened Cap 525 - notably the discount and interest items and a supposed course of dealing involving negotiated fees. The Court of Appeal allowed the appeal. It held that the trial court had made definite, unchallenged findings that the claim was proved, and it was internally contradictory to then dismiss it. Further, the power to inquire into professional misconduct belongs exclusively to the Board established under Cap 525, and the trial court erred by usurping that function and effectively nullifying earned fees. The misconduct finding rested on the superseded pre-tender fee note and on prior payments which, on the court's fresh re-evaluation of the evidence, did not relate to BOQs. The Court set aside the High Court judgment and entered judgment for the appellant for Ksh.7,131,431 with interest, with the respondent bearing the costs of both the appeal and the suit.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appellant's claim for professional fees was proved to the required standard on a balance of probability
  2. 2.Whether the provisions of the Architects and Quantity Surveyors Act (Cap 525) were properly invoked to invalidate the claim
  3. 3.Whether the trial court erred in making a finding of professional misconduct, a matter within the jurisdiction of the Board under Cap 525

Key legal issues

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01

Internal contradiction in trial judgment: findings that the claim was proved yet dismissal for non-proof

Holding

The trial court made definite findings that the contract existed, was performed and unpaid, and could not in the same breath hold that the case was not proved.

Reasoning

The trial judge had found there was no dispute the plaintiff was contracted, prepared the BOQs, submitted fee notes and was unpaid. Those unchallenged findings (no cross-appeal) established the claim; the dismissal rested only on 'other parameters' concerning Cap 525, which was an erroneous basis to defeat an otherwise proved claim.

p. 5
02

Whether the trial court could make findings of professional misconduct under Cap 525

Holding

No. The power to inquire into and sanction professional misconduct is vested exclusively in the Board of Registration of Architects and Quantity Surveyors under sections 4, 5 and 13 and by-laws 45, 46 and 53 of Cap 525.

Reasoning

The court set out the statutory scheme: the Board conducts inquiries and may caution, censure, suspend registration, impose a modest fine, or remove a name from the register. A court usurping that function and effectively forfeiting earned fees by way of sanction was an error and exceeded the statutory penalties.

03

Whether the earlier fee note of 29th October 1997 (with a 25% discount) justified a finding of misconduct

Holding

No. The only fee note in issue was the final one of 12th August 1998, issued in accordance with Cap 525; the earlier estimated fee note had been superseded and was irrelevant.

Reasoning

By-law 45(3)(b) and (c) prohibit receiving discounts or commissions, but there is no provision prohibiting charging interest, and the final fee note was issued in accordance with the statute. The earlier pre-tender, estimate-based fee note was never acknowledged or paid and was superseded by the post-tender final fee note.

p. 6
04

Whether prior negotiated fee payments established a course of dealing excluding Cap 525 rates

Holding

No. The finding that previous BOQ fee notes had been paid outside Cap 525 was not based on cogent evidence; only the appellant gave direct evidence and the prior payments related to other small works, not BOQs.

Reasoning

The respondent's director witness knew nothing about the Uganda project dealings. Prior payments were for advisory opinions and other small works, not BOQs, which are tender documents. An appellate court may depart from trial findings of fact where findings lack cogent evidential support; the waiver/estoppel argument by the respondent therefore had no basis in fact or law.

p. 7

Legal principles established

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  • A trial court cannot adjudicate on a professional's alleged misconduct; that inquiry is reserved to the Board established under section 4 of Cap 525, and a court's finding of misconduct nullifying professional work is an error.
  • On a first appeal the Court of Appeal must re-evaluate the evidence afresh and arrive at its own conclusions, and is not bound by trial findings of fact where the trial judge failed to take account of material circumstances or probabilities.

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment and orders of the High Court dated 1st October, 2009 set aside
  3. 3.Judgment entered in favour of the appellant for Kshs.7,131,431 together with interest and costs
  4. 4.Respondent to bear the costs of this appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
Civil Suit No. 1861 of 2001
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal Rules (Rule 29(1)(a) of the Court's Rules cited); appeal as of right from the High Court

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We allow the appeal and set aside the judgment and orders of the High Court made on 1st October, 2009, and substitute therefor an order for judgment in favour of the appellant for the sum of Kshs.7,131,431 together with interest and costs.
p. 7disposition
The respondent shall also bear the costs of this appeal. We so order.
p. 7costs
In our view, the matters of professional misconduct alluded to by the court properly belonged to the Board and in considering them and making a findings of professional misconduct, which in effect nullified professional work, the trial court was in error.
p. 6exclusive jurisdiction of professional Board
We have re-evaluated the evidence on record afresh and considered the submissions of counsel because it is our duty to do so on a first appeal, in order to arrive at our own conclusions in the matter.
p. 5duty on first appeal
It seems to us odd, therefore, that the court would in the same breath hold that the case had not been proved.
p. 5internal contradiction of trial judgment
we find and hold that the finding by the trial court that there were previous BOQ fee notes that had been submitted by the appellant and paid outside Cap 525 was not based on cogent evidence.
p. 7findings of fact without cogent evidence

Issues in the judgment

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minor

First fee note as quoted shows 'Less 25% Discount' and an addition rather than deduction arithmetic inconsistency, and the revised fee note refers to 'Kshs.284,216,243.00' while the fee calculation uses 'Kshs.284,216,443.00' - discrepancies in figures quoted in the judgment

minor

Minor typographical errors in the judgment text ('making a findings of professional misconduct')

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Davidson Kariuki Maina t/a Bills Consults v Bobmil Properties Limited [2019] KECA 720 (KLR)", Case Analysis (2019). Civil Appeal No. 188 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/720/eng@2019-05-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.