Davis & Shirtlift Limited v George Philliph Investments Ltd. t/a Rock Motel & 2 others (Environment and Land Appeal E012 of 2023) [2024] KEELC 851 (KLR)
The bottom line
#Kenya's Environment and Land Court held that a hotel could not make a pool inspection company pay for a contractor's defective work without proof of a supervision contract.
What this practically means
#Executive summary
#Key legal issues
#Existence of a contract for supervisory services between the Appellant and the 1st Respondent
There was no credible evidence of such a contract; the trial court misconstrued the evidence.
The documents relied on (Daily Work Sheet, receipt for Kshs. 5,000/- and Visitors Book) showed inspection of the already constructed pool after completion, not supervision during construction. The Appellant had expressly stated in writing that it did not engage in swimming pool construction services, and a fee of Kshs. 5,000/- against a Kshs. 2,500,000/- contract sum was inconsistent with a supervisory mandate.
Liability of the Appellant jointly and severally for monies paid to and defects caused by the 2nd and 3rd Respondents
Without a contract between the Appellant and the 1st Respondent, there was no basis for joint and several liability against the Appellant.
The refund of Kshs. 1,200,000/- could only be made by the 2nd and 3rd Respondents who received it, and the cost of a new swimming pool could not be visited on a party who was not party to the construction contract. The 1st Respondent's case against the Appellant was therefore not proved to the required standard.
Adequacy of the damages awarded by the lower court
The award of both a refund of the payment made and the full cost of a new swimming pool was unjustifiable.
The 1st Respondent paid Kshs. 1,200,000/- out of a contract sum of Kshs. 2,500,000/- and received a defective pool. A refund of the payment made restored it to its pre-contract position; awarding an additional Kshs. 2,692,850/- for a new pool was not explained, particularly where the contract price had not been completed.
Legal principles established
#- On a first appeal, the court must re-evaluate the evidence and draw its own conclusions while making due allowance for not having seen or heard the witnesses
- An appellate court will not interfere with findings of fact by the trial court unless they were not based on evidence at all, were based on a misapprehension of the evidence, or the court acted on wrong principles
Court orders
#- 1.The appeal is allowed
- 2.The judgment of the lower court delivered on 23rd March 2022 is set aside as against the Appellant and substituted with an order dismissing the 1st Respondent's suit in the lower court as against the Appellant
- 3.The Appellant shall have the costs of the Appeal and the lower court suit to be paid by the 1st Respondent
- On appeal from
- Senior Principal Magistrate's Court at Maseno
- Maseno SPMC ELC No. 18 of 2018
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court (first appeal on facts and law)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Davis & Shirtlift Limited v George Philliph Investments Ltd. t/a Rock Motel & 2 others (Environment and Land Appeal E012 of 2023) [2024] KEELC 851 (KLR)", Case Analysis (2024). Not stated in judgment (appeal from Maseno SPMC ELC No. 18 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/851/eng@2024-02-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.