MZEE ABDALLA v OSMAN FAQI SHEIKHABU [2007] KEHC 2156 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA

Civil Suit 22 of 2007

MZEE ABDALLA …………...…………..………….. PLAINTIFF

V E R S U S

OSMAN FAQI  SHEIKHABU…………………….DEFENDANT

RULING

By an agreement dated the 1st April 2005 the defendant engaged the Plaintiff to construct for him a house on Plot No. 88/XV/MI Mombasa at a total coast of Sh. 19,800,000/-.  In the course of constructing the house a disagreement arose on the workmanship with the defendant describing the plaintiff’s job as shoddy.  The plaintiff  was therefore stopped from continuing with the construction and asked to leave the premises.  Aggrieved by that he has now  filed this suit and sought an injunction to restrain the defendant from engaging another contractor to continue with the construction until his work is assessed and quantified.  Along with the filing of the suit the plaintiff has filed an application for injunction and sought the same order.  This ruling is on that application after an inter-partes hearing.

Counsel for the Plaintiff argues that as the defendant has evinced an intention to engage another contractor it will complicate maters if another contractor embarks on the construction before his work is quantified.  He therefore urges that the injunction sought be granted.

Counsel for the defendant strongly opposes the application  on two grounds.  He argues that the plaintiff has not claimed any amount to require a quantification of his work. He therefore sees this case as an  evidence fishing expedition.  On the second ground counsel for the plaintiff argues that the affidavit in support of the application is fatally defective for fouling section 35 of the Advocates’ Act in that it does not bear on its face the endorsement of the drawer.  In support of this contention he relied on Justice Nyamu’s decision in Disterberger _Vs- Muidnia and Another [2005] 1 EA 48.

In his rejoinder counsel for the plaintiff, citing the decision of a single Judge of the Court of Appeal in Housing Finance of Kenya

–Vs- Attorney General & Another Civil Application No. 189 of 2004, argues that failure to bear the endorsement of its drawer is not fatal to the affidavit in support of the applcaition.

It is not in dispute that the parties entered into the agreement referred to hereinabove. It is also not in dispute that the defendant is not satisfied with the plaintiff’s workmanship and has stopped him from continuing with the construction and asked him to leave the premises.  I reckon that at one stage or the other one party is going to claim payment form the other.  In the circumstances I think that the plaintiff’s application that his work so far be assessed and quantified before the defendant engages another contractor to complete the construction is merited.

On the validity of the affidavit in support of the application I have read the two decisions cited to me.  As there is no allegation that the affidavit has been drawn by an unqualified person, and following the Court of Appeal decision in the Housing Finance case which is binding on me, I hold that failure to bear the endorsement of its drawer is an irregularity as to form which is curable by Order 18 Rule 7 of the Civil Procedure Rules.  In the circumstances I grant this application.

That in a way disposes of this suit and there is nothing to go to hearing.  I therefore direct that the assessment and quantification of the plaintiff’s work be done within 45 days. I shall mention this case on 12th July 2007 for the parties to tell me if they would like to engage a joint quantity surveyor or how they would like the assessment and quantification to be done.

DATED and delivered this 5th day of July 2007.

D.K. MARAGA

JUDGE