Turn-o-metal Engineers Limited v Ministry of Medical Services & 1 other
The bottom line
#The Court of Appeal dismissed a contractor's Kshs 100 million claim because it had no receipts or paperwork proving its losses, only an accountant's calculations.
What this practically means
#Executive summary
#Key legal issues
#Duty of a first appellate court
The Court of Appeal on a first appeal must re-evaluate the evidence and draw its own conclusions, while bearing in mind it neither saw nor heard the witnesses.
Citing Abok James Odera and Kenya Ports Authority v Kuston (Kenya), the Court restated that its primary role as a first appellate court is to re-evaluate, re-assess and re-analyse the evidence on the record and determine whether the trial judge's conclusions should stand, giving reasons either way, and to rule only on the evidence on record without introducing extraneous matters.
Liquidated damages for delayed completion
The appellant, having failed to complete the works even within the extended completion date, was contractually liable to pay liquidated damages, and the employer was entitled to deduct them from payments due.
Clause 49 of the Conditions of Contract obliged the contractor to pay liquidated damages per day for late completion, which the employer could deduct from payments due. The correspondence showed the appellant applied for extensions, received an extension only to 30 April 2007, and still failed to complete on time, so the trial judge's conclusion was well supported by the evidence.
Proof of special damages
The claims for special damages beyond the retention monies failed because they were not strictly proved; figures produced by the appellant's in-house accountant, without documentary support or audited accounts, do not discharge the burden of proof on a balance of probabilities.
The Court affirmed the settled principle that special damages must be specifically pleaded and strictly proved. The appellant listed alleged losses but tendered no supporting receipts, invoices or audited accounts, relying only on computations by its accountant. Claims for interest also failed because the underlying payment certificates were never certified as the contract required.
Contractual basis for claims
A party cannot claim compensation for services (such as acting as project manager) or interest where the contract makes no provision for them and no variation was made.
The Court agreed with the trial judge that the Project Manager was identified with specificity in the contract and no variation was made to that provision, so there was no basis for the claim for performing that role. Similarly, since the contract was silent on interest on retention monies, there was no contractual basis to award it, though interest at court rates was allowed on the retention amount.
Legal principles established
#- On a first appeal, the Court of Appeal must re-evaluate, re-assess and re-analyse the evidence on the record and determine whether the conclusions of the trial judge are to stand, while making due allowance for the fact that it did not see or hear the witnesses.
- Special damages must not only be specifically pleaded but must also be strictly proved, with documentary evidence; mere figures generated by a party's accountant without supporting documents or audited accounts do not suffice.
- General damages are not ordinarily awardable for breach of contract, save where the defendant's conduct is proved to be oppressive, high-handed, outrageous, insolent or vindictive.
Court orders
#- 1.The appeal is dismissed
- 2.Each party shall bear its own costs of the appeal
- On appeal from
- High Court of Kenya at Nairobi
- Jurisdiction invoked
- First appeal to the Court of Appeal under Rule 31 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Turn-o-metal Engineers Limited v Ministry of Medical Services & 1 other", Case Analysis (2025). Civil Appeal (memorandum of appeal; number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/896/eng@2025-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.