Muthami t/a Qara Boreholes Services v Mutisya (Environment and Land Appeal E048 of 2021) [2024] KEELC 6914 (KLR)
The bottom line
#A Kenyan court ordered a borehole contractor to refund the full payment because he could not prove the contract became impossible to perform.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial court disregarded the appellant's evidence in arriving at its decision.
- 2.Whether the appellant proved that the contract between him and the respondent had been frustrated.
- 3.Whether the trial court was wrong to order the appellant to refund the entire consideration when the agreed works had been partially done.
Key legal issues
#Whether the trial court disregarded the appellant's evidence (the two hydrological reports)
The two hydrological reports dated 20th February 2018 and 16th July 2018 were produced without objection, so the trial court erred in finding they were not produced; however, the court was not bound by those expert opinions.
The trial court record of 23rd September 2020 showed the defendant adopted his documents, including both hydrological reports, as exhibits without objection from the respondent. The respondent's claim that the second report was never produced was therefore incorrect. The trial court should have interrogated the reports alongside other evidence, treating them as expert opinions rather than binding determinations.
Who contracted the hydrologist
The hydrologist was contracted by the appellant, and liability occasioned by his contradictory reports must be borne by the appellant.
Under Section 109 of the Evidence Act, the appellant, who alleged that the respondent contracted the hydrologist, bore the burden of proving that fact. The appellant conceded in cross-examination that he was to facilitate the hydrological survey and received Kshs 50,000/- on behalf of the hydrologist. The respondent denied contracting the hydrologist. No evidence of the respondent's instructions was presented, so the allegation failed.
Whether the contract was frustrated
Frustration was not proved; the conclusions in the 16th July 2018 report did not support the appellant's claim that water was unavailable on the entire land, and the appellant did not demonstrate compliance with the report's conclusions.
The appellant relied on the second hydrological report to allege impossibility of performance, but that report actually recommended completing the borehole at 230 meters, developing it, leaving it as an open hole if the formation was stable rock, and carrying out water quality analysis. The report nowhere stated water was unavailable on the entire land. The appellant also failed to demonstrate compliance with the report's conclusions, so frustration could not be claimed.
Whether the trial court was wrong to order refund of the entire consideration despite partial performance
The trial court was not wrong; the appellant provided no calculations or expert evidence of the quantum of work done, and drilling without ensuring water availability was an exercise in futility.
The appellant faulted the trial court for ordering refund of the full Kshs 1,300,000/- when part of the works had been done, but he never availed his own calculations of work done and undone, nor expert evidence on quantum. As the expert, he was obliged to first secure a report confirming water before drilling. Having failed to show the contract could not be performed, he could not claim credit for partial payment.
Legal principles established
#- The duty of a first appellate court is to reassess, reanalyze and reconsider the evidence before the trial court and make its own independent conclusions, making due allowance for not having seen or heard the witnesses.
- The burden of proving a fact lies on the person who alleges its existence, under Section 109 of the Evidence Act.
- Where an expert engaged by a party issues contradictory reports, the reliability of the expert and liability for the consequences rest on that party.
Court orders
#- 1.The appeal is dismissed with costs to the respondent.
- 2.It is so ordered.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Principal Magistrate's Court, Mavoko (ELC)
- Mavoko ELC CMC Case Number 10 of 2019
- Jurisdiction invoked
- First appellate jurisdiction over the magistrate's court judgment (memorandum of appeal dated 22nd October 2021)
Relief refused
#Allowing the appeal and varying, vacating or setting aside the judgment of the magistrate's court dated 7th October 2021
The appellant failed to prove frustration of contract and provided no calculations or expert evidence of partial performance; the hydrologist was contracted by the appellant and his liability must be borne by the appellant.
Costs of the appeal to the appellant
The appeal was dismissed with costs awarded to the respondent.
Costs
Appeal dismissed with costs to the respondent.
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 duty of this court as a first appellate court is to reassess, reanalyze and reconsider the evidence before the trial court and make its own independent conclusions bearing in mind that it had no opportunity to see or hear witness and make due allowance for that.
In the premises, I find and hold that the hydrologist was contracted by the appellant and the liability occasioned by his reports must be borne by the appellant.
The appellant has not demonstrated compliance with the conclusions made in the report of 16th July 2018 and therefore cannot claim frustration.
In the premises, I find no merit in the appeal which I dismiss with costs to the respondent.
It is so ordered.
Issues in the judgment
#The judgment at paragraph 30 states 'The nine grounds of appeal' although only six grounds (a) to (g) are set out at paragraph 15.
The respondent is referred to inconsistently; the judgment describes the appeal as challenging a judgment allowing 'the plaintifi's (respondent herein)' claim, and paragraph 39 contains an apparent drafting error referring to the appellant contradicting the hydrologist.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muthami t/a Qara Boreholes Services v Mutisya (Environment and Land Appeal E048 of 2021) [2024] KEELC 6914 (KLR)", Case Analysis (2024). Mavoko ELC Appeal (memorandum of appeal dated 22nd October 2021, amended 3rd May 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6914/eng@2024-10-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.