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Court of AppealPartially AllowedCivil Appeal 260 of 2002

Gajipara Builders v Jedida Ndegwa [2007] KECA 362 (KLR)

Court of Appeal of Kenya
30 March 2007
1,570 words in judgment
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The bottom line

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Kenya's Court of Appeal threw out both a builder's unpaid-balance claim and a homeowner's counter-claim because neither side proved their case with proper evidence.

What this practically means

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Executive summary

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The Court of Appeal at Nakuru (Bosire, O'Kubasu and Deverell, JJA) delivered a single judgment of the court on 30th March 2007 in this first appeal against the judgment of Rimita, J. of the High Court at Nakuru (H.C.C.C. No. 311 of 1990) dated 3rd May 1999. The appellant, Gajipara Builders, had sued Jedida Ndegwa for Shs.401,680/= being the balance for construction of a school and toilets at Plot No. 2/490 Nakuru under a contract originally priced at Shs.870,000/=, later reduced to Shs.800,000/=. The High Court dismissed the appellant's claim and instead gave judgment for the respondent on her counter-claim in the sum of Shs.496,844/= plus costs and interest, for costs of completing the abandoned works. The Court of Appeal applied Selle v Associated Motor Boat Co. and Williamson Diamonds v Brown on its duty to re-evaluate the evidence, and agreed that the appellant's claim was not proved and was properly dismissed. However, it held that the trial judge erred in entering judgment on the counter-claim which was not specifically pleaded and proved. The appeal was accordingly allowed in part: the judgment of the superior court was set aside, the respondent's counter-claim was dismissed with costs, and the respondent was ordered to bear half the costs of the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appellant proved its claim for Shs.401,680/= for work done, materials supplied and services rendered
  2. 2.Whether the learned judge erred in entering judgment on the respondent's counter-claim which was not specifically pleaded and proved
  3. 3.What orders on costs should follow

Key legal issues

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01

Proof of the appellant's claim for the unpaid contract balance

Holding

The appellant did not prove its claim for Shs.401,680/=; the dismissal of its claim by the High Court was correct.

Reasoning

The Court of Appeal, exercising its first-appeal duty to re-evaluate evidence, found that while the parties had agreed a contract price of Shs.800,000/=, the evidence of payments was scanty and the appellant abandoned the project incomplete. On the evidence as a whole the appellant failed to establish that the respondent was indebted in the sum claimed, and the learned judge was entitled to dismiss the claim.

p. 3
02

The respondent's counter-claim for damages and refund of reconstruction costs

Holding

The judgment on the counter-claim was set aside because the counter-claim was not specifically pleaded and proved.

Reasoning

Although the respondent alleged defective work and claimed damages for breach of contract and a refund of monies used to complete the abandoned project, the trial judge awarded Shs.496,844/= partly by guesswork regarding completion of the residential house. The Court of Appeal held that entering judgment on a claim not specifically pleaded and proved was an error, and dismissed the counter-claim.

p. 3

Legal principles established

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  • On a first appeal the Court of Appeal must re-evaluate the evidence and make its own conclusions, while making due allowance for the fact that it did not see or hear the witnesses.
  • Judgment cannot be entered on a counter-claim which has not been specifically pleaded and proved.
  • A plaintiff who alleges an indebtedness must prove it; a claim not proved to the required standard will be dismissed.

Court orders

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  1. 1.The appeal is allowed in part
  2. 2.The judgment of the superior court is set aside
  3. 3.The respondent's counter-claim is dismissed with costs
  4. 4.The respondent to bear half the costs of this appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority
majority
On appeal from
High Court of Kenya at Nakuru
H.C.C.C. No. 311 of 1990
Jurisdiction invoked
First appeal to the Court of Appeal under the Civil Procedure Act/Rules from a decree of the High Court (not expressly stated in the judgment)

Relief refused

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Reinstatement of the appellant's claim for Shs.401,680/=

The appellant failed to prove its case on the evidence

p. 3

Costs

The respondent's counter-claim dismissed with costs; the respondent to bear half the costs of this appeal

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

This being a first appeal, it is our duty to re-evaluate the evidence, assess it and make our own conclusions remembering that we have neither seen nor heard the witnesses and hence due allowance must be made for this
p. 3Duty of a first appellate court
As regards the counter-claim, we find that the learned judge was in error when he entered judgment on the counter-claim when the same was not specifically pleaded and proved.
p. 3Pleading and proof of counter-claims
we order that this appeal be allowed, the judgment of the superior court set aside, the respondent’s counter-claim dismissed with costs and we further order that the respondent do bear half the costs of this appeal.
p. 3Final orders

Issues in the judgment

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minor

Arithmetic inconsistency in the trial judge's quoted award: the judgment first awards Shs.496,844/= on the counter-claim, but the reasoning within the same quoted passage states 'I will award a sum of K.Shs.200,000/=' and a total reimbursement of K.Shs.766,844/= after deducting Shs.300,000/=, which does not reconcile with the final figure of 496,844.

minor

The record header for the Court of Appeal station contains a typographical error ('PEAL AT NAKURU'), though the body and delivery clause confirm Nakuru.

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, "Gajipara Builders v Jedida Ndegwa [2007] KECA 362 (KLR)", Case Analysis (2007). Civil Appeal 260 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/362/eng@2007-03-30

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