Fit-Xpress Limited v China Sichuan International Techno-Economic Corporation (Sietcolimited) [2017] KEHC 10079 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

COMMERCIAL AND TAX DIVISION

CIVIL CASE NO. 334 OF 2014

FIT-XPRESS LIMITED.............................................…PLAINTIFF

VERSUS

CHINA SICHUAN INTERNATIONAL TECHNO-ECONOMIC

CORPORATION (SIETCOLIMITED)........................DEFENDANT

JUDGMENT

[1]The Plaintiff, FIT-Xpress Limited, is a limited liability company duly incorporated under the Companies Act, Chapter 486 of the Laws of Kenya, having its registered office in Nairobi, in the Republic of Kenya. It filed this suit against the Defendant, China Sichuan International Techno-Economic Corporation (SIETCO) Limited, which is a limited liability company incorporated in China, but duly registered in Kenya as a foreign company in accordance with the provisions of Section 366 of the Companies Act, Chapter 486 of the Laws of Kenya (now repealed). The Plaintiff's cause of action is that it entered into an agreement dated 15 March 2011 with the Defendant in which the Plaintiff agreed to reserve for purposes of re-sale on behalf of the Defendant, the Defendant's housing developments.

[2]As pleaded in Paragraph 4 of the Plaint, it was an express term of the agreement that the Defendant would reserve and distribute 123 units for the Plaintiff in the Defendant's development, otherwise known as Jacaranda Gardens on LR No. 74/14 (I.R 135846/1), which the Defendant would sell to the Plaintiff as follows:

[a]Phase 1 Units: 3 bedroom houses at 6,700,000/= and 4 bedroom houses at Kshs. 8,800,000/=;

[b]Phase 2 Units: 2 bedroom houses at Kshs. 5,800,000/= and 3 bedroom houses at Kshs. 6,900,000/=.

[c]The Defendant would offer an 8% discount on the 10% amount of the full purchase price of each of the 123 units reserved    by the Plaintiff.

[d]The Defendant would pay the Plaintiff subject to the    submission of monthly sales reports.

[3]It was averred by the Plaintiff that it duly paid the requisite deposit amount for each of the units reserved and thereafter resold the same to various third parties, and thereafter requested the Defendant to make payments as agreed upon completion of the first 55 units. According to the Plaintiff, the Defendant only paid Kshs. 26,563,890/= leaving a balance of Kshs. 47,746,000/=. Thereafter it resold a further 14 units in respect of which it was entitled to a further sum of Kshs. 11,981,000/=, which the Defendant was yet to pay. Accordingly, the Plaintiff filed this suit praying for judgment against the Defendant for:

[a]The sum of Kshs. 47,746,000/=aforementioned.

[b]The payment of Kshs. 11,981,000/= for the further 14 units resold.

[c]Cost and Interest on the above amounts at the commercial   bank lending rate of 18% from the date they fell due until full   payment

[d]Any other or further relief that the Court may deem fit to grant.

[4]The Defendant resisted the claim, and while admitting that there was indeed a Selling Agency Agreement dated 15 March 2011 between the parties in respect of 123 units of its development known as Jacaranda Gardens, the discount offered was not on the full purchase price of each of the 123 units as purported by the Plaintiff, but on the 10% deposit amount for each unit. Accordingly, the Defendant denied the contents of Paragraph 4(iii) of the Plaint in so far as the same do not mirror the clear provisions of Clause 4 of the Selling Agency Agreement, contending therefore that it constitutes a misrepresentation of the contractual and legitimate expectations of the parties under the said agreement.

[5]The Defendant also denied that the Plaintiff paid the requisite deposits amount for each of the 123 units reserved under their Agreement as alleged in Paragraphs 5 and 6 of the Plaint; and averred that, to the contrary, the Plaintiff began to accept deposits on a piecemeal basis for the reserved units, even for units that were not reserved under their Agreement. The Defendant further asserted that it had overpaid the Plaintiff the amounts contemplated under Clause 4 of the Agreement, for which reason it raised a Counterclaim for Kshs. 19,269,646/= together with interest and costs in its Amended Defence and Counterclaim filed herein on 15 January 2015.

[6]In support of the Plaintiff's case, evidence was called from its Managing Director, Mr. Karim Dhalla (PW1). PW1 relied on his Revised Witness Statement filed on 15 July 2015 in which he averred that the Plaintiff and the Defendant entered into an agreement dated 15 March 2011whereby the Defendant agreed to reserve residential units for the Plaintiff for purposes of resale. PW1 testified that it was an express term of the said Agreement that:

[a]The Defendant would reserve and distribute for resale a number of 123 units to the Plaintiff in the Defendant's development;

[b]the Defendant would sell to the Plaintiff all the reserved units as follows:

[i]Phase 1 units: 3 Bedroom houses at Kshs. 6,700,000/= and 4 bedroom houses at Kshs. 8,800,000/=;

[ii]Phase 2 units: 2 bedroom houses at Kshs. 5,800,000/=and 3 bedroom houses at Kshs. 6,900,000/=

[c]The Defendant would offer an 8% discount on the 10% deposit amount of the full purchase price of each of the 123 units      reserved by the Plaintiff;

[d]The Defendant would pay the Plaintiff subject to the submission of monthly sales reports.

[7]It was further the evidence of the Plaintiff that pursuant to the Agreement aforementioned, the Plaintiff acquired the subject properties and resold them to various third parties. Thereafter on 2 September 2013, the Plaintiff wrote to the Defendant requesting confirmation of the format that the monthly reports should take. In response thereto, the Plaintiff wrote the letter dated 9 September 2013 (at page 6 of the Plaintiff's Amended Bundle of Documents) providing the acceptable format and indicating that the discount percentage was on the full purchase price. According to PW1, it was common ground, and the intention of the parties on signing the Agreement, was that the 8% discount payable was on the whole of the purchase price, and not merely the deposit on the purchases price.

[8] PW1 further stated that on 16 September 2013, he wrote an email to Ms. Lian, as advised by the Defendant's letter dated 9 September 2013, attaching the monthly sales report for 51 residential units for which the purchasers had completed payment; and that on 17 September 2013, he received a response from Ms. Lian with reconciled accounts for the 51 residential units. He then proceeded to request for payment on the basis of the reconciled accounts as he had no objection to raise in respect thereof. That thereafter, on 7 November 2013, the Defendant paid the Plaintiff an initial amount of Kshs. 10,000,000/= for the 51 units together with additional 7 units whose payment was completed in the weeks subsequent to the September Report.

[9] PW1 further stated that on 22 November 2013, he met with the Defendant's Chief Executive Officer, Nancy Yu, who furnished him with a handwritten confirmation of the total amount owing to the Plaintiff for the 58 units as being Kshs. 26,563,890/=; and that Nancy Yu confirmed that the said amount would be paid in two instalments of Kshs. 10,000,000/= (which had been paid on 7 November 2013) and Kshs. 16,563,890/= which was to be paid on 22 November 2013. PW1 added that Nancy Yu also furnished him with a printout of the Defendant's final reconciliation for the 58 units wherein the discount was calculated at 8% of the full purchase price. He also confirmed that the balance of Kshs. 16,563,890/= was indeed paid by the Defendant on 22 November 2013.

[10]  In respect of the sum claimed herein, it was the evidence of PW1 that after November 2013, a further 54 units were fully paid for and in April 2014, the Plaintiff submitted the requisite sales report in the same format for the payment of Kshs. 47,746,000/= by the Defendant; and that, despite several reminders and requests, the Defendant neglected, ignored and/or refused to pay the Plaintiff the said amount. Thereafter, the remaining 14 units of the 123 units were also paid for in full, in respect of which the Plaintiff was entitled to Kshs. 11,981,000/=, but for which the Defendant declined to make payment; and that the Plaintiff was, at that juncture, constrained to refer the matter to its lawyers for legal action. Accordingly, on 9 July 2014, the Plaintiff's advocates wrote to the Defendant demanding the outstanding amount and giving notice of intention to sue. Thus, the Plaintiff's claim herein is for Kshs. 47,746,000/= being the difference between the price sold to third parties and the discounted price offered to the Plaintiff for the 54 units. The Plaintiff has also claimed for Kshs. 11,981,000/= being the difference between the discounted price offered by the Defendant to the Plaintiff and the price at which the Plaintiff sold the final 14 units to third parties.

[11]  The Defendant, on its part, relied on the evidence of its Sales Manager, Xu Chengquan (DW1), whose testimony was that  by a Selling Agency Agreement dated 15 March 2011, and executed between the Plaintiff on the one hand and the Defendant on the other hand, upon the Plaintiff's representation that it was a duly registered Estates Agent, it was agreed that, in consideration for the Plaintiff marketing and selling on behalf of the Defendant the developments the Defendant had put up at Jacaranda Gardens, the Defendant would pay the Plaintiff commission as set out in Clause 4 of the said Agreement. According to the Defendant, the mutual agreement between the parties was that it would offer an 8% discount on the 10% deposit amount of the full purchase price of each of the 123 units reserved by the Plaintiff; and that the Defendant would pay into the Plaintiff's account the difference between the purchase price paid for the units sold and the agreed discounted amount, after submission by the Plaintiff of its monthly sales reports.

[12]  It was further the evidence of DW1 that, although the Agreement only covered 123 units, the Plaintiff took advantage of the Defendant's trust by appropriating a number of additional housing units without the Defendant's authorization and purported to sell them and claim discounts under the same terms as were agreed for the 123 units constituting the Agreement; and that from the billing practice between the parties, which was largely informed by trust, upon the sale of the reserved units, the Plaintiff raised invoices on the discounted sums and sent them to the Defendant for settlement. That it was not until the Defendant insisted on being furnished with up-to-date monthly statements that it found out that it had overpaid the Plaintiff; and that there had been deliberate wrongful calculation of the discount by the Plaintiff. At paragraph 17 of DW1'sWritten Statement, he provided a list of all the units sold by the Plaintiff for which it presented invoices for payment. The list shows that the Plaintiff sold and earned commission on a total of 144 units; and that even then, the Plaintiff was entitled to no more that Kshs. 7,294,244/=, being 8% of the 10% deposit paid for the units.

[13] DW1 further stated that on or about the 6 November 2013, the Defendant paid the Plaintiff Kshs. 26,563,890/= trusting that the figures submitted by the Plaintiff were accurate; but that inspite thereof, the Plaintiff issued a demand for more money thus prompting the Defendant to demand that it be furnished with a true and accurate account of all the houses that had been sold. He added that it was upon the furnishing of the list of the houses that had been sold that the Defendant discovered that:

[a]The Plaintiff had appropriated houses in excess of the agreed 123 units and purported to sell them and claim discounts on the          basis of the Agreement;

[b]The invoices that had been tendered by the Plaintiff and upon which the Defendant had paid the Plaintiff the sum of Kshs. 26,563,890/=were grossly exaggerated;

[c]Some of the units had been taken up by the Plaintiff's Managing Director and no payments in respect of these units had     been made;

[d]The Plaintiff had claimed 8% discount on the full purchase   price and not on the 10% deposit, contrary to Clause 4 of the    Agreement.

[e]The total amount of discount payable to the Plaintiff, including the units beyond the agreed 123 provided for in the Agreement was Kshs. 7,294,244/= only.

[14]  It was therefore the contention of the Defendant that, to the extent that it paid the Plaintiff the sum of Kshs. 26,563,890/=, there was an overpayment by the sum of Kshs. 19,269,646/=, on the basis of which the Defendant paid taxes to the Kenya Revenue Authority to the tune of Kshs. 1,491,370/=. Accordingly, the Defendant prayed for Judgment on its Counterclaim for Kshs. 19,269,646/=. The Defendant relied on the List and Bundle of Documents attached to the Witness Statement of DW1.

[15]  I have carefully considered the parties' pleadings herein, the evidence adduced as well as the written submissions filed, which were highlighted on 14 June 2017 by Learned Counsel. There is no dispute that the parties herein, through their principal officers, entered into the Selling Agency Agreement dated 15 March 2011, which Agreement was exhibited at Page 1 of the Plaintiff's Amended Bundle of Documents and Pages 5-8 of the Defendants Bundle of Documents. A salient feature of that Agreement was that the Defendant "...would develop and distribute its developments to Fit Xpress Ltd, a limited liability company to market and sell on their behalf..."The developments in question were those on the property known as Jacaranda Gardens in Nairobi. In particular, the parties covenanted that:

[a]The Defendant would reserve and distribute for resale a number of 123 units to the Plaintiff in the Defendant's Jacaranda Gardens development;

[b]the Defendant would sell to the Plaintiff all the reserved units as follows:

[i]Phase 1 units: 3 Bedroom houses at Kshs. 6,700,000/= and 4 bedroom houses at Kshs. 8,800,000/=;

[ii]Phase 2 units: 2 bedroom houses at Kshs. 5,800,000/= and 3 bedroom houses at Kshs. 6,900,000/=

[c]The Defendant would offer an 8% discount on the 10% deposit amount of the full purchase price of each of the 123 units reserved by the Plaintiff;

[d]The Defendant would pay the Plaintiff subject to the    submission of monthly sales reports.

[16]The parties are further in agreement that the Plaintiff would, pursuant to Clause 10 of their Agreement, submit to the Defendant's Chief Executive Officer bi-monthly/monthly statements on the sales status of the units; and that it was on the basis of these reports that the Plaintiff's commission would be paid, subject to verification. Accordingly, the evidence adduced by either side is to the effect that following such a report, the Plaintiff submitted a demand for payment, pursuant to which the Defendant paid Kshs. 26,563,890 in two tranches of Kshs. 10,000,000/= and Kshs. 16,563,890/= in November 2013. The evidence of the payments is at pages 8-12 of the Defendant's Bundle of Documents.

[17]The parties were however in disagreement as to the Plaintiff's contention that it is owed a further Kshs. 47,746,000/= for 54 additional units or a further sum of Kshs. 11,981,000/=  for the last 14 units sold. While the Defendant's posturing was that Clause 4 provided for a discount of 8% on the 10% deposit of the purchase price per unit, the Plaintiff contends that the agreement was for the payment of 8% discount on the full purchase price per unit in respect of the 123 units, and that Clause 4 was later on varied to reflect this position, and to accord with the original intention of the parties. Accordingly, the single issue that presents itself for the Court's determination is, what is the purport of Clause 4 of the Selling Agency dated 15 March 2011, and whether there was a variation thereof.

[18]It is a fundamental cannon of construction that an agreement ought to be interpreted in such a manner as gives effect to the intention of the parties. Hence, in Anson's Law of Contract, 30th Edition at page 183 it is opined that:

"An agreement ought to receive that construction which its language will admit, which will best effectuate the intention of the parties, to be collected from the whole of the agreement,  and greater regard is to be had to the clear intent of the parties than to any particular words which they may have used in the  expression of their intent. The proper mode of interpretation is to take the instrument as a whole, to ascertain the meaning of words and phrases from their general context, and to try and  give effect to every part of it."

[19]  With the foregoing in mind, I have looked at the Selling Agency Agreement dated 15 March 2011with a view of ascertaining the parties' intention with particular regard to Clause 4thereof, which clause simply states as follows:

"That under this Agreement the Developer shall offer an 8% discount on the 10% deposit amount of the full purchase price of each of the 123 units reserved by the Agent.

[20]  To my mind, that clause is clear and unambiguous. It admits no controversy that the Plaintiff was to be paid a commission equivalent to 8% of the 10% deposit made on the purchase price for each unit sold. It was in this context that the Plaintiff, in Clause 5 of the Agreement, covenanted that:

"FIT Xpress undertakes that the 10% deposit of the sale price  of the reserved units shall be fully paid on or before   execution of the Sale Agreement and the balance of the purchase price paid on or before the completion date of the said units or within seven (7) days of successful registration of the Lease and Charge. AND that, it will endeavour to fully distribute all the units it has reserved."

[21]  Accordingly, I would take the view that the Plaintiff was in no doubt as to the intention of the parties that Clause 4 of their agreement provided for 8% discount on the 10% deposit component of the purchase price and not the full price. In this regard I find instructive the observations made by Blackburn, J. in Harris vs. Great Western Railway Company [1876] 1 QBD 515 at page 530 that:

"...it is clear law that where there is a writing, into which the terms of any agreement are reduced, the terms are to be regulated by that writing...by assenting to the contract thus reduced to writing, he represents to the other side that he has made himself acquainted with the consents of that writing and assents to them, and so induces the other side to act upon that representation by entering into the contract with him, and is consequently precluded from denying that he did make himself acquainted with those terms..."

[22]  The foregoing being my view, the question to pose is whether the terms of Clause 4 were subsequently varied. This is because it was the contention of the Plaintiff that, from the standpoint of PW1 on behalf of the Plaintiff and Nancy Yu on behalf of the Defendant, the 8% stipulation was to be applied on the whole purchase price, based on subsequent communication between them. In particular, the Plaintiff placed reliance on a meeting held between PW1 and Nancy Yu on 22 November 2013 to discuss the sums due in respect of the first 58 units; in which Nancy Yu worked out the same at the rate of 8% of the full purchase price. Her handwritten chit is to be found on Page 69 of the Plaintiff's Bundle of Documents; and there is no dispute that that document formed the basis upon which the Plaintiff was paid Kshs. 26,563,890/= by the Defendant. Reliance was also placed on the letter dated 9 September 2013 from Jacaranda Gardens to the Plaintiff, which was exhibited at Page 6 of the Plaintiff's Bundle of Documents.

[23]In view of the foregoing, the Plaintiff's posturing was that DW1could not purport to renege on that subsequent understanding  between PW1 and Nancy Yu, granted the following:

[a] In his evidence in chief, DW1 confirmed that he joined the Defendant Company in 2014, well after the subject transaction and was therefore not involved in the preparation of the subject   agreement.

[b]Though he denied that Nancy Yu was the Defendant's Chief Executive Officer at the material time, Nancy Yu held herself out as such and issued business cards to that effect, a copy of which was exhibited at Page 77 of the Plaintiff's Bundle of Documents;  and   therefore that the Plaintiff was not obliged in law, by dint of   Sections 33 and 34 of the Companies Act, No. 17, 2015, to unravel her correct designation.

[c] DW1 admitted in cross-examination that he did not know  what Nancy Yuintended when she signed the Selling Agency Agreement; and that he was unaware of what transpired at the meeting with their lawyer as mentioned in the letter of 9  September 2013, in which their lawyer was to make confirmation of the Plaintiff's Reports before any payments were made.

[d]The Defendant failed to call Nancy Yu as a witness, even after  it acknowledged, through DW1, that she was within the jurisdiction of the Court.

[24]  A perusal of the letter dated 9 September 2013 makes it plain that it was written courtesy of Jacaranda Gardens by Nancy Yu as the Chief Executive Officer. There is no explicit reference therein to the Defendant; but more importantly, the letter simply states thus in part:

"...Please remember to indicate the 3 units sold earlier which can't enjoy the 8% discount."

[25]  There is nothing in the said letter to show that Clause 4 of the Selling Agency Agreement was varied thereby; let alone varied from 8% of the 10% deposit on the purchase price to 8% of the full purchase price. Similarly, there is nothing in the handwritten chit on Page 69 of the Plaintiff's Bundle of Documents from which it can be inferred that the parties varied the terms of their agreement as set out in Clause 4 thereof. Accordingly, I take the view that the Selling Agency Agreement dated 15 March 2011 remained in force at all times material to this suit. [26]Indeed, in Solle vs. Butcher [1949] 2 AllER 1107, Lord Denning had the following to say in this respect:

"...once a contract has been made, that is to say, once the parties, whatever their inmost states of mind, have to all outward appearances agreed with sufficient certainty in the same terms on the same subject matter, then the contract is good unless and until it is set aside for breach of some condition expressed or implied in it, or for fraud, or on some equitable ground..."

[27]Thus, even assuming, arguendo, that there was a variation explicit in the documents aforementioned, and that they were done by the authorized persons, it is trite that such variation can only premised on the grounds of fraud, mistake or some such ground that would warrant the setting aside of a contract. Thus, in Graddock Brothers Limited vs. Hunt [1923] AllER 394,it was held that:

"The jurisdiction of the courts of equity in this respect is to   bring the written document executed in pursuance of an antecedent agreement into conformity with that agreement. The conditions to its exercise are that there must be a antecedent contract and the common intention embodying or giving effect to the whole of the contract by the writings, and there must be clear evidence that the document by common   mistake failed to embody such contract and either contained provisions not agreed upon, or omitted something that was agreed upon, or otherwise departed from its terms. If these conditions are fulfilled, then it seems to me, on principle, that the instrument so rectified should have the same force as if the mistake had not been made..."(per Warrington, L.J.at page 405)

[28]  There is clearly no meeting of minds evinced herein to the effect that a mistake was made in the crafting of Clause 4 as it appears in the Selling Agency Agreement, or on whether the parties varied Clause 4 in the manner posited by the Defendant. It was imperative for the Plaintiff to demonstrate to the satisfaction of the Court that there was a mistake in the Selling Agency Agreement, and as pointed out by Younger L.J. in the Graddock Brothers Ltd Case (supra):

"The evidence by which it is sought to show that the words taken down in writing are contrary to the concurrent intention of all the parties to the instrument must be of the highest   nature. It must be irrefragable ... the proof must satisfy the court what was the concurrent intention of all parties, and it must never be forgot, to what extent the defendant, one of the parties, admits or denies the intention."

[29]  The same position was taken in Kenya Breweries Limited vs. Kiambu General Transport Agency Limited [2000] 2 EA 398 in which it was held that:

"A variation of an existing contract involves an alteration as a matter of contract of the contractual relations between the parties. Hence, the agreement for the variation must itself possess the characteristics of a valid contract. To effect a  variation, therefore, the parties must be ad idem in the same sense as for the formation of a contract. Indeed, the agreement for variation must further be supported by consideration ... if the agreement is a mere nudum pactum it would give no cause of an action for breach particularly if its effect was to give a voluntary indulgence to the other party to the agreement..."

[30]  The foregoing being my view of the matter, the Plaintiff's arguments that the Defendant is estopped by conduct from denying that the parties intended that the discount be calculated at the rate of 8% of the full purchase price is untenable. Indeed, in Benson Ngugi Muiruri vs. Kenya National Capital Corporation [2005] eKLR, the Court of Appeal had the following to say in this regard:

"Waiver is based on a contract express or implied between the  parties. Thus it arises from a term, express or implicit, of a contract, and before any such term can exist, a valid contract must be established. If it is found that a contract is established and it contains such a term, then that term like any other term in a contract may found a cause of action. Estoppel on the other hand, is primarily a rule of evidence whereby a party to litigation is, in certain circumstances, prevented from denying something, which he had previously asserted to be true. Estoppel either at common law or in equity, can never found a cause of action, though it may enable a cause of action, which would otherwise fail, to succeed."

[31]  Moreover, not much would turn on the alleged failure by the Defendant to call Nancy Yu as a witness, granted that she was in fact listed as one of the witnesses for the Plaintiff as per the List of Witnesses filed herein on 1 August 2014. Thus, any adverse inference for the failure to call her as a witness, would impact, not on the Defence Case, but the Plaintiff's.

[32]  In the premises, the Plaintiff having failed to demonstrate that there was a mistake in Clause 4 of the Selling Agency Agreement dated 15 March 2011, or that in the chit at Page 69 of the Plaintiff's Bundle of Documents and the letter dated 9 September 2013 comprised a variation of the clause aforestated, it is my finding that there was no such variation as alleged by the Plaintiff and that the intention of the parties was to have the Plaintiff paid at the rate of 8% of the 10% deposit of the purchase price per unit sold. As often said, parties are bound by the terms of their contract, unless coercion, fraud or undue influence be shown. (see National Bank of Kenya Ltd vs. Pipeplastic Samkolit (K) Ltd & Another [2001] eKLR).

[33]  Pursuant to the clear and unequivocal agreement of the parties under Clause 4, the Defendant provided a list of all the units sold by the Defendant. The list, at paragraph 17 of the Witness Statement of DW1,comprises, not only the 123 units that formed the subject of the Selling Agency Agreement, but an additional 21 units that the Plaintiff sold without authority or concurrence from the Defendant. The Defendant nevertheless magnanimously took the extra units on board and worked out the amount due to the Plaintiff for all the units sold to be no more than Kshs.7,294,244/=. That evidence was not rebutted by the Plaintiff. I would therefore find and hold that the Plaintiff was overpaid by a sum of Ksh. 19,269,646/= as counterclaimed by the Defendant in its Defence and Counterclaim.

[34]  In the result, it is my finding the Plaintiff's claim for Kshs. 47,746,000/=,as being the amount due for the 54 units sold after the initial payment; and Kshs. Kshs. 11,981,000/=, being the commission due to it for the final 14 units sold, is totally unwarranted as those sums are not in accord with Selling Agency Agreement, and in particular Clause 4 thereof. The Plaintiff's suit is accordingly dismissed with costs. On the other hand, the Defendant has demonstrated to the requisite standard, that it overpaid the Plaintiff to the tune of Kshs. 19,269,646/=.Thus, Judgment is hereby entered in favour of the Defendant against the Plaintiff in the said sum of 19,269,646/= together with interests thereon at court rates from 6 November 2013 until payment in full as well as costs of this suit.

It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 10TH DAY OF NOVEMBER, 2017

OLGA SEWE

JUDGE