Ibm Automobile Ltd v China State Construction Engineering Ltd (Commercial Case E024 of 2024) [2024] SCC 15 (KLR)

Clause 4.1 of the lease contract (Cexh.11) required the parties to make a settlement every month, and the lessor issues invoices according to the statement, the contractor arranges payment within one month after receiving the invoice. The Claimant placed before this court the demand letter dated 15 th January 2021 (Cexh.10) showing that the Respondent breached the express provision of clause 4.1 set out above by failing to pay the Claimant Kshs. 832,950.97/= on or before 21st March 2022. The Respondent neither entered appearance nor filed a Response to the Claim despite having been duly served. ISSUES FOR DETERMINATION Parties' pleadings, documents, submissions, and the evidence led during the hearing of this matter have been duly considered by this court. The issues that commend to this court for determination are:a) Whether the Claimant has proved his claim to the required standards b) What are the costs due to the claimant or Respondent, if any Whether the Claimant has proved his claim to the required standards The Claimant’s claim is a claim for money held as a result of the breach of a contract. It is trite law that the principal remedy under common law for breach of contract is an award of damages, with the purpose of damages being to compensate the injured party for the loss suffered as a result of the breach. (See Lord Diplock in Photo Production Ltd v Securicor Transport Ltd ({1980} AC 827, 848- 849). For a successful claim for breach of contract, a Claimant must show that: Kitale SCC CC. No. E024 of 2024 Page 2 of 4 Judgment

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(a) a contract exists or existed; (b) the contract was breached by the Respondent; and (c) the Claimant suffered damage (loss) as a result of the Respondent’s breach. The Claimant’s case set out above was not controverted by the Respondent in any way whatsoever. The Respondent did not controvert the Claimant’s evidence on the existence of the existence of the lease contract (Cexh.11). The Claimant’s evidence that the said lease contract was breached by the Respondent was also not disputed. The Claimant’s claim was also adequately supported by the evidence placed before this court. Consequently, this court is persuaded that the Claimant proved its claim to the required standards. What are the costs due to the claimant or Respondent, if any Section 33 (1) of the Small Claims Court Act grants the court discretion to award costs. Rule 37 of the Small Claims Court Rules provides that in assessing costs recoverable under section 33 (1) of the Act, the Court shall be guided by the Second Schedule to the Rules. Guided by the above sections of the law, considering the fact that the Claimant was represented by a counsel, and the fact that this matter proceeded by way of formal proof, the costs due to the Claimant are hereby assessed at Kshs. 30,000/=. DISPOSITION The upshot of the foregoing is that:a) Judgment is entered against the Respondent for the sum of Kshs. 832,950.97/= Kenya Shillings Eight Hundred and Thirty-Two Kitale SCC CC. No. E024 of 2024 Page 3 of 4 Judgment

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Thousand Nine Hundred and Fifty Shillings and Ninety-Seven Cents) only b) The sum of Kshs. 832,950.97/= Kenya Shillings Eight Hundred and Thirty-Two Thousand Nine Hundred and Fifty Shillings and Ninety-Seven Cents) shall attract interest at court rate from 21st March 2022 till payment in full. c) The Claimant shall have the costs of this claim assessed at Kshs. 30,000/=(Kenya Shillings Twenty Thousand) only Judgment accordingly. Judgment read, signed, and delivered in open court at Kitale this 06th day of May 2024 T.O. OMONO ADJUDICATOR Kitale SCC CC. No. E024 of 2024 Page 4 of 4 Judgment

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