Suresh C. Kapila Practicing As Archplan Associates Africa Architects v Manu Shah & another [2020] KECA 640 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that an architect could not recover Kshs 2.2 million in fees because no clear, mutual agreement existed for the extra work.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there was a valid contract for professional services between the Appellant and the Respondents for preparation of proposal plans/drawings for the proposed development on the subject properties
- 2.Whether there were further instructions given to the Appellant by the Respondents to prepare final plans/drawings and estimates for which the Respondents were liable to pay as claimed
- 3.Whether the accrued fees were chargeable under the Architects and Quantity Surveyors Act
- 4.Whether the Appellant's evidence, written submissions and authorities were sufficient basis for sustaining his claim
- 5.Whether the 2nd Respondent was an agent of a disclosed principal and therefore not personally liable
- 6.Whether the Appellant's right to a fair hearing was infringed by the trial court
Key legal issues
#Whether further verbal instructions and subsequent correspondence created an enforceable contract by conduct for preparation of final plans/drawings and estimates
No enforceable contract was created; the correspondence showed no concurrence or mutuality of minds on the alleged further contract
The Court reappraised the Appellant's letters of 25th October, 24th November and 15th December 2000 and the Respondents' reply of 21st December 2000. Unlike the first engagement, which culminated in the endorsed letter of 17th May 2000, the Respondents merely acknowledged receipt of documents and promised to revert, without confirming agreement. Necessary tasks (cadastral survey, trial holes, engagement of other consultants) were never resolved or performed, and no meeting was held.
Whether the 2nd Respondent was personally liable or an agent of a disclosed principal
The 2nd Respondent was a disclosed agent of Ashok Chandaria and not personally liable; the meetings and discussions were between the Appellant, the 1st Respondent and Ashok Chandaria
The Court applied the principle in Victor Mabachi v Nurtun Bates Ltd and City Council of Nairobi v Wilfred Kamau Githua that where the principal is disclosed, the agent is not to be sued. The correspondences showed the 2nd Respondent took no active part in the negotiations beyond a brief telephone call in which he promised to revert but never did.
Whether the trial court infringed the Appellant's right to a fair hearing
No infringement; the Appellant was heard, led evidence, filed submissions and the trial court gave reasons for its decision
The Court applied the fair-hearing jurisprudence in Savings & Loan v Odongo, Mbaki v Macharia and Abbas Sherally v Abdul Fazaiboy, finding that the Appellant filed his claim which was defended, adduced evidence which was rebutted, and filed written submissions and authorities which the trial court assessed and analyzed before rendering a reasoned decision.
The proper role of a first appellate court
A first appellate court must reconsider and evaluate the evidence afresh and draw its own conclusions, subject to the absence of advantages of seeing and hearing witnesses
The Court restated the Selle v Associated Motor Boat Co principles as its mandate, and proceeded to reappraise the correspondence and record itself before affirming the trial Judge's findings.
Legal principles established
#- A contract may be formed through numerous correspondences exchanged between the parties and subsequent performance of obligations, but enforceability by conduct requires a concurrence or mutuality of minds communicated between the parties
- A court has no mandate to rewrite a contract between parties, whether one-sided or not, unless coercion, fraud or undue influence are pleaded and proved
- Where the principal is disclosed, the agent is not to be personally sued or held liable for the acts of the principal
- On a first appeal, the Court must reconsider the evidence, evaluate it itself and draw its own conclusions, while making due allowance for not having seen or heard the witnesses
- Where the terms of a contract have been reduced to the form of a document, no evidence shall be given in proof of the terms except the document itself or admissible secondary evidence (Evidence Act, section 97)
Court orders
#- 1.Appeal dismissed with costs to the Respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No. 498 of 2003
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules (Rule 94 notice of grounds for affirming; judgment delivered under Rule 32(3))
Relief refused
#Recovery of Kshs. 2,199,000/= and interest for alleged further architectural services beyond the initial proposal plan
No enforceable contract by conduct was created in respect of the alleged further instructions; there was no concurrence or mutuality of minds
Personal liability of the 2nd Respondent as an alleged direct contracting party
The 2nd Respondent acted as an agent of a disclosed principal, Ashok Chandaria, and was not an active contracting party
Claim that the Appellant's right to fair hearing was infringed
The Appellant was heard, adduced evidence, filed submissions and the trial court analyzed them; no miscarriage of justice was occasioned
Costs
The appeal is dismissed with costs to the Respondents.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot of the above assessment and reasoning is that we find no merit in this appeal. The same is dismissed with costs to the Respondents.
We affirm the trial Judge's finding on the undisputed facts on the record that there was no enforceable contract created between the respective parties in this appeal with regard to the alleged existence of further instruction issued by the Respondents to the Appellant
Neither, the trial Judge nor us on appeal has the mandate to rewrite the apparent one sided contract as between the respective parties to this appeal.
we find nothing to suggest that the 2nd Respondent was an active contracting party in the transactions giving rise to this appeal.
On the face of the record there was no concurrence or mutuality of minds enforceable in law as binding on the purported further contracting parties to this appeal.
Issues in the judgment
#The judgment spells the 2nd Respondent's counsel's cited principal differently in different passages ('Ashok Chandara', 'Ashok Chandaria', 'Ashock Chandaria'); the first respondent's counsel's cited case appears as both 'Kiyu Interpress Limited' and 'Kiyu Enterprises Limited', and as 'National Bank of Kenya versus Pipe Lastic Samkolit' [2001] eKLR and 'National Bank of Kenya Limited versus Pipe Plastic Somkolit (K) Limited' [2002] 2EA 503, which appear to be the same authority cited with variant spellings.
The coram lists three Judges of Appeal but the judgment states Githinji JA ceased to hold office before delivery, and only Nambuye and Makhandia JJA sign the delivery clause.
The judgment states the appeal raised ten grounds 'condensed into four thematic issues' but then paraphrases six issues.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Suresh C. Kapila Practicing As Archplan Associates Africa Architects v Manu Shah & another [2020] KECA 640 (KLR)", Case Analysis (2020). Civil Appeal No. 53 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/640/eng@2020-05-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.