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ELCPartially AllowedHCCC No. 13 of 2013· [2016] KEELC 1124 (KLR)

Brit Ahlfert v Nawaz Mussa t/a Hash Construction [2016] KEELC 1124 (KLR)

High Court of Kenya
24 February 2016
SCS. Chitembwe
1,129 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ordered a construction contractor to refund money paid for unfinished work and pay damages for breach of contract.

What this practically means

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Executive summary

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The plaintiff, a Swedish national, entered into a construction agreement dated 14 February 2012 with the defendant, a contractor trading as Hash Construction, for construction of a residential house known as Villa Milele on plot no. 4545 (original 493/2) Malindi for Kshs.21,348,362, with a 365-day completion period. She paid a 50% deposit of USD 130,000 on 21 February 2012 and, on the defendant's request, a further 30% payment of USD 77,302 (about Kshs.6,000,000) on 30 July 2012, earmarked for internal plastering, doors, windows, plumbing and electrical works. When she visited the site in October 2012 she found none of those items done; by March 2013 the site was deserted and the contract expired unperformed on 14 February 2013. She sued in May 2013 for USD 77,302 plus interest and costs, supported by evidence from a registered quantity surveyor (PW2) who valued works done at Kshs.10,665,202 and outstanding works at Kshs.10,683,159. The defendant filed a defence and counterclaim asserting the works were 80% complete but neither appeared nor called evidence; his advocates were allowed to cease acting as they could not trace him. The court found the plaintiff had proved her case on a balance of probabilities, that the defendant breached the contract by failing to complete the works, and that there was no evidence of the plaintiff's payment default. Deducting USD 7,400 by which the defendant was overpaid beyond the 50% deposit, judgment was entered for the plaintiff for USD 69,902, general damages of Kshs.500,000, and costs.

Key legal issues

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01

Breach of construction contract and refund of unutilised payment

Holding

The defendant breached the contract by failing to complete the works; the unutilised 30% payment must be refunded less the value of work done in excess of the deposit

Reasoning

The court accepted the plaintiff's evidence and that of PW2, a quantity surveyor, that works done were valued at Kshs.10,665,202 against a contract sum of Kshs.21,348,362. Only the 50% deposit (USD 130,000) and a further USD 77,302 were paid, leaving about USD 68,698 unpaid, which could not have completed the works. Deducting USD 7,400 of overpayment gave a refund of USD 69,902.

p. 2
02

General damages for breach of contract

Holding

General damages of Kshs.500,000 awarded for the defendant's breach

Reasoning

Having found the defendant did not fulfil his contractual obligations, the court condemned him to pay general damages and assessed Kshs.500,000 as sufficient in the circumstances.

p. 2
03

Standard and burden of proof in a claim undefended at hearing

Holding

The plaintiff proved her case on a balance of probabilities even though the defendant had filed a defence and counterclaim

Reasoning

The defendant's advocates ceased acting and the defendant neither appeared nor called evidence. The plaintiff produced the contract and photographs, and PW2's assessment corroborated her claim that only about half the works had been done. The defence assertion of 80% completion was unsupported by evidence.

p. 2

Legal principles established

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  • A contractor who fails to complete works under a construction contract and is overpaid must refund the unutilised sums and is liable in general damages for breach of contract

Court orders

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  1. 1.Judgment for the Plaintiff against the Defendant for overpayment of USD 69,902
  2. 2.General damages of Kshs.500,000 for breach of contract
  3. 3.Costs of the suit to the plaintiff
Jurisdiction invoked
Original civil jurisdiction of the High Court (contract claim for USD 77,302 plus interest and costs)

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, "Brit Ahlfert v Nawaz Mussa t/a Hash Construction [2016] KEELC 1124 (KLR)", Case Analysis (2016). HCCC No. 13 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1124/eng@2016-02-24

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