Introduction and Background
1. By a Plaint dated 1st November ,2019, the Plaintiff instituted the present suit against the Defendant seeking, inter alia, special damages in the sum of Kshs. 27,500,700.00/-, general damages for breach of contract, interest on the sums claimed, and costs of the suit.
2. The Plaintiff contends that by a Letter of Award dated 8th November, 2016, it was awarded a tender by the Defendant for the provision of Media Monitoring Services under Tender Reference No. NCC/SCM/ITEM NO. 15 VOL 7/2016-17cnm/1076/2016. Pursuant to this award, the Plaintiff was required to issue a performance bond of Kshs. 2,750,070.00/-, which it did through a Performance Guarantee issued by Commercial Bank of Africa on 18th November, 2016.
3. The Plaintiff avers that upon fulfilling the conditions in the Letter of Award, the parties executed a formal contract on 14th February, 2017, for the provision of the said services, designated as Contract No. NCC/GOV/REP/152/2016-2017.
4. The Plaintiff asserts that it duly and faithfully performed its obligations under the contract and rendered the media monitoring services. Upon completion, it issued an invoice to the Defendant for the agreed contractual sum of Kshs. 27,500,700.00/-. The Defendant allegedly failed and/or neglected to settle the invoice despite multiple reminders, prompting the Plaintiff to institute the present proceedings to enforce payment.
5. Although the Defendant entered appearance, it did not file a defence and did not participate in the hearing.
6. The Plaintiff called one witness, its accountant Mr. Nixon Owande (PW1), who adopted his witness statement dated 16th January, 2023, and produced a bundle of documents marked as P Exhibits 1 to 5.
7. Following the hearing, the Plaintiff was granted leave to file written submissions, which are on record and have been considered alongside the evidence.
8. Having considered the pleadings, the evidence presented, and the submissions filed by the Plaintiff, the following issues arise for determination:-
(i) Whether the Plaintiff has proved, on a balance of probabilities, that it entered into a valid contract with the Defendant and performed its obligations thereunder;
(ii) Whether the Plaintiff is entitled to the contractual sum of Kshs. 27,500,700.00/- as claimed;
(iii) Whether the Plaintiff is entitled to general damages for breach of contract;
(iv) Whether the Plaintiff is entitled to interest and costs of the suit.
Analysis and Determination
9. The applicable standard of proof in civil matters is that of a balance of probabilities, and the burden of proof lies on the party who alleges a fact. This principle is anchored in Sections 107(1) and (2) of the Evidence Act which provides:-
Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist, and, When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
10. In Miller v Minister of Pensions [1947] All ER 372, Lord Denning explained the standard thus:-
"That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in criminal cases. If the evidence is such that the tribunal can say: We think it more probable than not, the burden is discharged, but if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally (un)convincing, the party bearing the burden of proof will lose because the requisite standard will not have been attained."
11. The Court of Appeal in James Muniu Mucheru v National Bank of Kenya Limited [2019] KECA 1058 (KLR) summarised the position as follows: -
"Courts will make a finding based on which party’s version of the story is more believable."
12. Given that the Defendant neither filed a defence nor led any evidence, the Plaintiff’s case stands uncontroverted. However, unchallenged evidence does not automatically entitle a claimant to judgment. This principle was enunciated in Avtar Singh Bahra & Amarjit Kaur Bahra v Raju Govindji Ganatra t/a Sweetbite Manufacturers [2001] KEHC 375 (KLR) and Motex Knitwear Limited v Gopitex Knitwear Mills Limited [2009] KEHC 4017 (KLR), where courts emphasized the continuing duty of the Plaintiff to prove its case.
13. This principle was reaffirmed by the Court of Appeal in Karugi & Another v Kabiya & 3 Others [1983] KECA 38 (KLR), where it was held: -
"The burden was always on the plaintiff to prove his case on a balance of probabilities even if the case was heard as formal proof."
14. Similarly, in Gichinga Kibutha v Caroline Nduku [2018] KEELC 3981 (KLR), the court observed: -
"It is not automatic that instances where the evidence is not controverted the claimant shall have his way in court. He must discharge the burden of proof. He must prove his case however much the opponent has not made a presence in the contest."
15. Guided by the foregoing principles, I find that the Plaintiff has established, on a balance of probabilities, that it entered into a binding contract with the Defendant for media monitoring services at a total cost of Kshs. 27,500,700.00/-. The Plaintiff produced the Letter of Award dated 8th November, 2016, the Performance Guarantee from Commercial Bank of Africa dated 18th November, 2016, and the executed contract which confirmed the contractual terms. The Plaintiff also produced an invoice dated 13th June, 2019, evidencing the claimed sum. There is no evidence on record to rebut the Plaintiff’s assertion that it performed its contractual obligations and that the sum remains unpaid. Accordingly, I find that the claim for Kshs. 27,500,700.00/- is well-founded. Prayer (a) of the Plaint is therefore merited.
16. With respect to general damages for breach of contract, the legal position is settled. In Consolata Anyango Ouma v South Nyanza Sugar Co. Ltd [2015] KEHC 4426 (KLR), Majanja J. stated: -
"As a general principle, the purpose of damages for breach of contract is, subject to mitigation of loss, the claimant is to be put as far as possible in the same position he would have been if the breach complained of had not occurred. This principle is encapsulated in the Latin phrase restitutio in integrum."
17. This was echoed in Kenya Industrial Estates Ltd v Lee Enterprises Ltd [2009] eKLR and Kenya Breweries Ltd v Natex Distributors Ltd [2004] eKLR. The rule in Hadley v Baxendale (1854) 9 Exch 341 provides that damages recoverable for breach of contract are those that arise naturally or that may be reasonably supposed to have been in the contemplation of the parties.
18. However, in the present case, the Plaintiff did not plead or prove any specific losses beyond the unpaid contract sum. No particulars of loss or injury were led in evidence to justify an award of general damages. I am therefore persuaded by the authority of Ganuni Construction Co. Ltd v County Government of Garissa & Another [2020] KEHC 3993 (KLR), which emphasized that general damages are not awardable in commercial contracts absent of specific proof of loss. Consequently, the prayer for general damages fails.
19. On the issue of interest, I find merit in the Plaintiff’s submissions. In Ganuni Construction Co. Ltd (supra), the court affirmed that interest serves to compensate a party kept out of its money. I therefore award interest on the principal sum at court rates from the date of filing suit until payment in full.
Conclusion and Disposition
20. In light of the foregoing, I find that the Plaintiff has proved its claim on a balance of probabilities. Accordingly, judgment is entered for the Plaintiff against the Defendant as follows:-
(a) The Plaintiff is awarded Kshs. 27,500,700.00/- being the contractual sum.
(b) The Plaintiff shall be paid interest on the said sum at court rates from the date of filing suit until payment in full.
(c) The Plaintiff is awarded the costs of the suit.
21. It is so ordered.
Dated and delivered virtually via Microsoft Teams this 26 day of June, 2025
ALEEM VISRAM, FCIArb
JUDGE
In the presence of;
Court Assistant: Sakina
………………..……………....................................................................for Plaintiff
…………………………………………....................................…...…for Defendant
1. By a Plaint dated 1st November ,2019, the Plaintiff instituted the present suit against the Defendant seeking, inter alia, special damages in the sum of Kshs. 27,500,700.00/-, general damages for breach of contract, interest on the sums claimed, and costs of the suit.
2. The Plaintiff contends that by a Letter of Award dated 8th November, 2016, it was awarded a tender by the Defendant for the provision of Media Monitoring Services under Tender Reference No. NCC/SCM/ITEM NO. 15 VOL 7/2016-17cnm/1076/2016. Pursuant to this award, the Plaintiff was required to issue a performance bond of Kshs. 2,750,070.00/-, which it did through a Performance Guarantee issued by Commercial Bank of Africa on 18th November, 2016.
3. The Plaintiff avers that upon fulfilling the conditions in the Letter of Award, the parties executed a formal contract on 14th February, 2017, for the provision of the said services, designated as Contract No. NCC/GOV/REP/152/2016-2017.
4. The Plaintiff asserts that it duly and faithfully performed its obligations under the contract and rendered the media monitoring services. Upon completion, it issued an invoice to the Defendant for the agreed contractual sum of Kshs. 27,500,700.00/-. The Defendant allegedly failed and/or neglected to settle the invoice despite multiple reminders, prompting the Plaintiff to institute the present proceedings to enforce payment.
5. Although the Defendant entered appearance, it did not file a defence and did not participate in the hearing.
6. The Plaintiff called one witness, its accountant Mr. Nixon Owande (PW1), who adopted his witness statement dated 16th January, 2023, and produced a bundle of documents marked as P Exhibits 1 to 5.
7. Following the hearing, the Plaintiff was granted leave to file written submissions, which are on record and have been considered alongside the evidence.
8. Having considered the pleadings, the evidence presented, and the submissions filed by the Plaintiff, the following issues arise for determination:-
(i) Whether the Plaintiff has proved, on a balance of probabilities, that it entered into a valid contract with the Defendant and performed its obligations thereunder;
(ii) Whether the Plaintiff is entitled to the contractual sum of Kshs. 27,500,700.00/- as claimed;
(iii) Whether the Plaintiff is entitled to general damages for breach of contract;
(iv) Whether the Plaintiff is entitled to interest and costs of the suit.
Analysis and Determination
9. The applicable standard of proof in civil matters is that of a balance of probabilities, and the burden of proof lies on the party who alleges a fact. This principle is anchored in Sections 107(1) and (2) of the Evidence Act which provides:-
Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist, and, When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
10. In Miller v Minister of Pensions [1947] All ER 372, Lord Denning explained the standard thus:-
"That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in criminal cases. If the evidence is such that the tribunal can say: We think it more probable than not, the burden is discharged, but if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally (un)convincing, the party bearing the burden of proof will lose because the requisite standard will not have been attained."
11. The Court of Appeal in James Muniu Mucheru v National Bank of Kenya Limited [2019] KECA 1058 (KLR) summarised the position as follows: -
"Courts will make a finding based on which party’s version of the story is more believable."
12. Given that the Defendant neither filed a defence nor led any evidence, the Plaintiff’s case stands uncontroverted. However, unchallenged evidence does not automatically entitle a claimant to judgment. This principle was enunciated in Avtar Singh Bahra & Amarjit Kaur Bahra v Raju Govindji Ganatra t/a Sweetbite Manufacturers [2001] KEHC 375 (KLR) and Motex Knitwear Limited v Gopitex Knitwear Mills Limited [2009] KEHC 4017 (KLR), where courts emphasized the continuing duty of the Plaintiff to prove its case.
13. This principle was reaffirmed by the Court of Appeal in Karugi & Another v Kabiya & 3 Others [1983] KECA 38 (KLR), where it was held: -
"The burden was always on the plaintiff to prove his case on a balance of probabilities even if the case was heard as formal proof."
14. Similarly, in Gichinga Kibutha v Caroline Nduku [2018] KEELC 3981 (KLR), the court observed: -
"It is not automatic that instances where the evidence is not controverted the claimant shall have his way in court. He must discharge the burden of proof. He must prove his case however much the opponent has not made a presence in the contest."
15. Guided by the foregoing principles, I find that the Plaintiff has established, on a balance of probabilities, that it entered into a binding contract with the Defendant for media monitoring services at a total cost of Kshs. 27,500,700.00/-. The Plaintiff produced the Letter of Award dated 8th November, 2016, the Performance Guarantee from Commercial Bank of Africa dated 18th November, 2016, and the executed contract which confirmed the contractual terms. The Plaintiff also produced an invoice dated 13th June, 2019, evidencing the claimed sum. There is no evidence on record to rebut the Plaintiff’s assertion that it performed its contractual obligations and that the sum remains unpaid. Accordingly, I find that the claim for Kshs. 27,500,700.00/- is well-founded. Prayer (a) of the Plaint is therefore merited.
16. With respect to general damages for breach of contract, the legal position is settled. In Consolata Anyango Ouma v South Nyanza Sugar Co. Ltd [2015] KEHC 4426 (KLR), Majanja J. stated: -
"As a general principle, the purpose of damages for breach of contract is, subject to mitigation of loss, the claimant is to be put as far as possible in the same position he would have been if the breach complained of had not occurred. This principle is encapsulated in the Latin phrase restitutio in integrum."
17. This was echoed in Kenya Industrial Estates Ltd v Lee Enterprises Ltd [2009] eKLR and Kenya Breweries Ltd v Natex Distributors Ltd [2004] eKLR. The rule in Hadley v Baxendale (1854) 9 Exch 341 provides that damages recoverable for breach of contract are those that arise naturally or that may be reasonably supposed to have been in the contemplation of the parties.
18. However, in the present case, the Plaintiff did not plead or prove any specific losses beyond the unpaid contract sum. No particulars of loss or injury were led in evidence to justify an award of general damages. I am therefore persuaded by the authority of Ganuni Construction Co. Ltd v County Government of Garissa & Another [2020] KEHC 3993 (KLR), which emphasized that general damages are not awardable in commercial contracts absent of specific proof of loss. Consequently, the prayer for general damages fails.
19. On the issue of interest, I find merit in the Plaintiff’s submissions. In Ganuni Construction Co. Ltd (supra), the court affirmed that interest serves to compensate a party kept out of its money. I therefore award interest on the principal sum at court rates from the date of filing suit until payment in full.
Conclusion and Disposition
20. In light of the foregoing, I find that the Plaintiff has proved its claim on a balance of probabilities. Accordingly, judgment is entered for the Plaintiff against the Defendant as follows:-
(a) The Plaintiff is awarded Kshs. 27,500,700.00/- being the contractual sum.
(b) The Plaintiff shall be paid interest on the said sum at court rates from the date of filing suit until payment in full.
(c) The Plaintiff is awarded the costs of the suit.
21. It is so ordered.
Dated and delivered virtually via Microsoft Teams this 26 day of June, 2025
ALEEM VISRAM, FCIArb
JUDGE
In the presence of;
Court Assistant: Sakina
………………..……………....................................................................for Plaintiff
…………………………………………....................................…...…for Defendant