Tanathi Water Works Development Agency (tawwda) v Qara Agencies Limited

4. The appellant prayed that he respondent’s claim be dismissed with costs and Judgement be entered in favour of the appellant in the sum of Kshs. 1,268,000/=. The trial proceeded before the learned Magistrate who in the end rendered her Judgment and stated that the appellant failed to prove on a balance of probabilities that the generator installed was not as per the contracted agreement. That the respondent was entitled to full contract sum and entered Judgment in its favour. 5. The appellant was dissatisfied with the Judgment and filed this appeal based on the following grounds of appeal: 1. The learned trial magistrate failed to acknowledge and note that the appellant had fully discharged his part of the contract by paying wholly what was due and that whatever that was retained was unpayable as lien since the respondent had breached the contract by failing, refusing neglecting and/or wantonly breaching his part of the contract by installing a Gen set pump which id not subscribe and meet the contractual specifications and conformations as was stated in the alleged contract dated 15th July 2010. 2. The learned magistrate failed, refused and/or neglected to acknowledge and agree that it was the sole duty of the plaintiff/respondent to ensure that to avoid defrauding the appellant, he installed he Gen set of the mutually agreed contractual specifications as per the alleged contract. 3. The learned magistrate failed, and or refused to acknowledge the fact that the respondent had a contractual duty to ensure compliance with his part of the contract by installing the correct Gen set pump which he has steadfastly refused to install to date. 4. The learned trial magistrate assumed and presumed that once a party (the appellant, in the instant case) refuses, fails or neglects to perform his part of the contract, then he should still continue to enforce any of his pending contractual rights despite his conspicuously glaring contractual breach. 5. The learned magistrate erred in law and in fact in awarding compensation for the respondent having fixed an inferior gen set contrary to what he promised leading to a misrepresentation to the appellant and making the appellant pay more than what he received in return. 6. The learned magistrate erred in awarding compensation for a contract that was breached by the respondent made the respondent unduly benefit from his own breach to the detriment of an innocent appellant. 7. The learned trial Magistrate erred in law in awarding and assessing compensatory damages for a contract that the appellant themselves breached and awarding the respondent a sum of 331,992/= only, in favor of the respondent, whereas it was the respondent who was in breach of the contract dated 15th July 2010 was unfortunate for justice and the law. 8. The learned magistrate erred in law and in fact by failing to appreciate that no contractant can benefit out of their own breach of contract. 9. The learned magistrate failed to acknowledge and appreciate that it was the plaintiff who was in breach of the contract ad not the defendant. 10. The learned magistrate failed to cumulatively and/or exhaustively evaluate the entire evidence on record and accord such evidence its due weight and merits and hence failed to capture and decipher the salient dispute before him thus arriving at an unconsidered decision. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4310/eng@2026-02-10 2

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6. 11. The learned magistrate either failed, refused or neglected to associate herself with or appraise himself with the facts in dispute between the appellant and the respondent and the evidence placed on record by the appellant. 12. The learned magistrate did not uphold the law when he completely ignored the entire appellant evidence filed on record. 13. That the lower court in its wisdom erroneously chose to find liability on the appellant in wanton disregard of the contract that the respondent sought to rely on. 14. That my lordship, any judgment/orders awarding the respondent the claim will negate he provisions of clause 2.1 and 5.1 of the contract dated 15th July 2010 leading to injustice to the appellant and the respondent benefiting out of his own breach. The appellant prays that the appeal be allowed, the Judgement be set aside and they be awarded costs of the suit. The Respondent’s Case 7. The respondent called Daniel Kilonzi Muthami, a Director at Qara Agencies Limited who had sued the appellant in the Lower Court. He testified that he sued them arising out of some works done in 2010. They signed an agreement on 15/7/2010 for drilling a borehole for the appellant. The agreement was produced as exhibit 1. The agreement stipulated that upon reporting to the site the appellant would pay 50% of the contract sum. 8. Upon completion of all the works the appellant would pay an additional 40% and the balance of 10% was payable upon expiry of the defects liability period of six months. It was the respondent’s case that the appellant failed to pay the 10% amounting to Kshs. 331,992.00. the respondent contended that they completed the work and were issued with a borehole completion certificate by Tanathi Water Services Board on 3/9/2010 which was produced as exhibit P2. The respondent prayed that the appellant be ordered to pay them Kshs. 331,992.00 and interest as from 1/4/2011 when the borehole project defect period expired till payment in full. In cross-examination the witness testified that they never received a complaint from the appellant after completion until they issued a demand letter to the appellant. Appellant’s Case 9. The appellant called Fredrick Tito Mwangati (DW1) and employee of Tanathi Water Works Development Agency as the CEO. He confirmed the respondents evidence that parties had entered a contract for the respondent to drill a borehole in Loitoktok Kajiado. That the respondent did the work upto some level of completion. That all the components except one of the generator set was not done to the satisfaction of the defendant as they provided an old generator set. The witness testified that there was a demand for a new generator before full payment. That the respondent failed to do so and therefore they had to retain the retention money pending completion of the project. 10. That the 10% retained was Kshs. 332,902.00. That they have a counterclaim for Kshs. 1,268,008/= captured at clause 2.5 at page 10 of the contract. That the generator set was not provided as one given was old and was rejected by supervisors. That they wrote a demand letter. In cross-examination the appellant admitted that they did not pay the retention money to the respondent. That there was a six months liability period and a completion certificate was issued by the appellant. The witness testified that the certificate was to be issued by the Supervisor one Munyao. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4310/eng@2026-02-10 3

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11. He was shown the completion certificate and said he saw it for the first time in court. He asked the court to allow their claim for Kshs. 1,268,008/= as the respondent installed an old generator to the site. The respondent filed a defence to the counter claim dated28/10/2016 and denied that he installed an old generator pump. He urged the court to dismiss the counter claim as the same was frivolous and vexatious. The Judgment of the Lower Court 12. The learned magistrate analyzed the evidence and held that the respondent installed the generator and was issued with an installation certificate. That the appellant failed to proof that the generator that was installed was not as per the contract agreement. That he never pursued the matter beyond the letter rand that since the generator was installed, a certificate of installation issued and the same being in use at the site, the respondent was entitled to full contract sum. The learned Magistrate entered Judgment for the plaintiff (respondent) and dismissed the counter claim. The Appeal 13. The appeal was canvassed by way of written submissions. Appellant’s Submissions 14. The appellant submits that the respondent did not supply the generator set as per the appellant’s specifications. The respondent installed a different generator which had less hose power, was noisier and could pump less water than that initially anticipated in the contract. That this was noted during the final inspection before the expiry of the defect liability period which was expiring on 31/3/2011. The appellant insisted that for them to get value for money the respondent has to install the generator as per the technical contractual specifications in the contract by installing the Gen-set 15KVA generator and decided to hold lien the 10% retention until the right generator was installed. Instead of the respondent replacing, he decided to go to court. The appellant submitted that the lower court just lucratively rewarded the respondent for breach of contract. 15. He submits that the respondent was entitled to nothing as he breached the contract. He has cited case law. That the applicant cannot benefit from breach of contract or to benefit from his wrong. He prays that the appeal be allowed. Respondents Submissions 16. The burden was on the appellant to prove that the water equipment that was installed by the respondent did not conform to the technical specifications as per the tender. That no technical witness was called to prove the same. The appellant submits that all the essentials of the valid contract were proved. He relies on Garvey -vs- Richards (2011) JMCA 16 and Others and urges the court to find that the appeal is frivolous and should be dismissed with costs. Analysis and Determination 17. I have considered the Judgment of the learned Magistrate and the submissions by the counsels as well as the grounds of appeal. The issue for determination is whether the learned Magistrate erred by failing to find that the respondent breached the agreement by supplying a generator which was not what was specified in the contract. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4310/eng@2026-02-10 4

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18. This is a first appeal and the court has a duty to evaluate the evidence, analyze it and come up with its own independent finding. This has been so held by this court and the court of Appeal. In the case of Selle -vs- Associated Motor Boat Company Limited (1986). The court of Appeal stated: “ An appeal to this court from a trial by the High Court is by way of a re-trial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that the court must reconsider the evidence itself and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect. In particular this court is not bound to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take into account of particular circumstances or probabilities materially to estimate the evidence in the case in general.” 19. The issue touching on this mater is a contract of supply. It is trite law that parties to a contract are bound by the terms and condition of the contract. It is not for the court to re-invite the court. The court is called upon to determine the dispute based on the contract entered into by the parties. It is the contention by the appellant that it was a term of the contract at clause 3.4 that the respondent was supposed to install a Gen-set 15KVA generator which was at the time valued at Kshs. 900,000/= for pumping water from the borehole. That what was supplied did not meet those specifications. 20. Clause 3:4 of the contract stated that contractor was supposed to “provide and install sub-mersible pump capable of lifting up 300m and connect the system to the tank. The respondent contends that they complied with the contract and supplied a generator which was approved by the appellant an has been in use by the appellant. 21. The appellant’s ground one of appeal is that the learned Magistrate erred by failing to note that it had discharged its part of the contract by paying wholly what was due and that whatever was retained was unpayable as lien since the respondent had breached the contract by installing a Gen-set pump which did not subscribe and meet the contractual specifications and confirmation as was stated in the alleged contract dated 15/7/2010. 22. The contract at clause 2 placed an obligation on the contractor to perform and complete the services described at Annexure 2 (TOR) with due diligence and efficiency and in accordance with the agreement’s formats. Clause 6:3:4 stipulated that the contractor would install and provide a Gen-set 15 KVA valued at Kshs. 900,000/=. The respondent’s contention is that they installed a generator set which was per specifications. The respondent affirmed that they were issued wit a completion certificate and the appellant was supposed to pay. 23. The respondent produced a borehole drilling completion certificate – Oltiasilele BB. Loiloktok Distick from Tanathi Water Services Board. The contract at paragraph 7.3.2 stipulated that payment would be done upon verification that: “ All works and activities stated in the contract have been completed to satisfactory standards as determined by W/SB or its agent.” 24. The completion certificate must have been issued and this clause which was filed verification and final payment. The witness for the appellant Fredrick Tito Mwangangi (DW1) when cross-examined in court admitted that he was aware of the completion certificate which was to be issued by the appellant. He testified that he was not aware of the completion certificate. He however, did not dispute the fact that the letter was from the appellant. The appellant alleged that the respondent was supposed to supply Genset 15KVA (Lister/Perkins Engine) but he supplied as second hand used generator. The https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4310/eng@2026-02-10 5

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letter is dated 28/3/2011. The dispute was not on completion the issue was failure to supply the specific Gen set 15 KVA as per the contract. 25. The respondent’s witness statement in response to the counterclaim by Daniel Kilonzi Muthami at page 2 stated that they supplied a generator – Gen set 16 KVA Lister Perkins Engine which is more powerful that the one the defendant wanted at the time of completion of the borehole the KVA Lister/ Perkins was out of stock. This statement is at page 69 of the record of appeal. This is a clear admission by the respondent that they breached the terms of the agreements as they did not supply the generator that was specified in the contract between the appellant and the respondent. Ground No. 2 of the Appeal has been proved as the appellant has proved and it has been admitted that the respondent did not supply the generator set of the mutually agreed contractual specification as per the contract. 26. The learned Magistrate failed to note, or ignore the admission by the respondent and that he had contractual duty to ensure that he supplied the correct Gen set pump which he has steadfastly refused to install. It is trite law that parties to a contract have equal rights and obligation and one cannot dictate the other to accept what was not on the contract. A party has to perform his part of the contract and if he fails or neglects to perform his part of the contract expect to continue to enforce the pending contractual rights despite his conspicuously glaring contractual breach. The learned Magistrate errored in law and infact when she awarded compensation and yet he had fixed an inferior Gen-set. 27. The respondent breached the contract. The respondent did not approach the appellant to change the specifications of the generator. It was a unilateral decision to install what was not specified. The letter which I have referred above by the respondent at page 59, it had proposed that, it was giving an undertaking to complete and replace the generator. The respondent did not indicate in its evidence that it ever replaced the generator having admitted that it supplied the wrong generator. 28. The appellant was therefore entitled to hold a lien the 10% retention until the right generator was installed. The law is trite that a party cannot benefit from his own wrong doing as that would be contrary to public policy, see Mwatech Enterprises Ltd -vs- Equtorial Commercial Bank Limited (2021) eKLR where it was held that the defendant is in breach of the terms of the contract of 12/8/2021. That is, where a party fails to fulfil the term of the contract, he is in breach. In Alhussein Establishment -vs- Eton College (1991) 1 A 11 ER 26 cited by the appellant, it was held that: “ The Principle that in the presence of clear express provisions in a contract to the contrary it was not to be presumed that the parties intended that a party should be entitled to take advantage of his own breach as against the other party was not amuted to cause where a party was relying on his own wrong to avoid his obligations under the contract but applied also where a party sought to obtain under a continuing contract on account of his breach…” 29. Also, in Cheall -vs- Association of Professional Executive Clerical and computer staff (1983) 1 A11 ER the court stated that a man cannot be permitted to take advantage of his own wrong. In Abu Chiaba Mohamed -vs- Mohamed Bwana Bakari & 2 Others (2005) eKLR the Court stated that no man can be allowed to rely on his own wrong doing to defeat the otherwise valid claim of another man, he cannot be allowed to take advantage of his wrong. 30. It is well settled that a man cannot stand to benefit from his wrong doing to the detriment of the party who has performed his part of the contract conscientiously. I find that the learned Magistrate erred by ignoring the fact that the respondent had breached the contract and was not entitled to claim the contractual rention of 10% of the contract unless and until he complied with the demand to supply the specific Gen-set 15KVA. This would amount to misuse of the public funds which was intended to improve the situation of the community by supplying them with water. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4310/eng@2026-02-10 6

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31. I find that the appeal has merits. I allow the appeal and set aside the Judgment of the learned Magistrate. I Order that: 1. The Judgment is set aside. 2. It is substituted with an order dismissing the respondents suit with costs. 3. The counter claim of Kshs. 1,268,008/= succeeds with costs to the appellant. 4. I award the appellant the costs of the appeal. DATED, SIGNED AND DELIVERED AT KITUI THIS 10TH DAY OF FEBRUARY 2026 HON. LADY JUSTICE L. GITARI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4310/eng@2026-02-10 7

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