Devshibhai & Sons Limited v Allied Plumbers Limited (Civil Suit 47 of 2018) [2025] KEHC 13695 (KLR) (Civ) (2 October 2025) (Judgment)

Key Facts

Transaction Type

Issues

• Which party shall bear costs of the suit
• Whether the Plaintiff is entitled to special damages as sought
• Whether the plaintiff has established a case for professional negligence against the Defendant

Holdings

• Judgment is entered for the Plaintiff against the Defendant in the sum of Kshs. 29,776,576 together with interest at court rates from the date of filing until full payment. The Plaintiff is also awarded costs of the suit.
• The court finds and holds that the plaintiff has established a case of professional negligence against the Defendant. The Defendant's evidence was deemed hearsay and inadmissible, and the failure to prove causation or satisfactory performance of contractual obligations led to this determination.

Remedies

• The plaintiff will have costs of the suit from the Defendant.
• Judgment entered for the Plaintiff against the Defendant in the sum of Kshs. 29,776,576 together with interest at court rates accruing from the date of filing the instant suit until payment in full.

Monetary Damages

Legal Principles

• The court emphasized that the defendant failed to discharge their burden of proof, as they could not establish that the damage was caused by external factors or a manufacturer's defect. This left the plaintiff's case unchallenged.
• The plaintiff's claim was based on subrogation rights after the insurer (Occidental Insurance) indemnified the loss. This principle allows insurers to recover payments from third parties at fault, as established in Richard Norman Mudibo v. Patrick Oloo Odhiambo [2020] KECA 887 (KLR).
• The court ruled that the defendant's evidence was hearsay, as the engineers (Ali Seif) were not present during the incident. This rendered their testimony inadmissible under Parker & Another v NQ & 2 Others [2023] KECA 908 (KLR).
• The court found the defendant breached their duty by not performing plumbing works to the expected professional standards, as no alternative cause for the damage was proven and the defendant's evidence was inadmissible.
• The court held that the defendant owed a duty of care to the plaintiff under the sub-contract agreement, citing Donoghue v. Stevenson [1932] UKHL 100. Failure to meet this duty constituted professional negligence.

Precedent Name

• Donoghue v. Stevenson
• Richard Norman Mudibo v. Patrick Oloo Odhiambo
• Elijah Ole Kool vs George Ikonya Thuo
• Gabriel Mugai Njiri v Wanga Robert Hawi t/a R.H. Wanga & Co. Advocates
• Ali Mohamed Sunkar vs Diamond Trust Bank Ltd
• Parkar & another v NQ & 2 others
• Abdi Ali Dere v Firoz Hussein Tundal & 2 others
• Ryde vs. Bushell & Another
• Julius Wambale & Another
• Statpark Industries v Mbithi Munyao
• Gulf Energy Ltd v Ministry of Energy & 2 others

Key Disputed Contract Clauses

• The court examined the defendant's contractual obligations under the sub-contract agreement, finding they failed to meet the required professional standards for plumbing installation and inspection, constituting a breach of duty.
• The court analyzed the applicability of the force majeure clause, concluding it could not absolve the defendant's liability as the damage stemmed from professional negligence, not an unforeseeable natural event.

Judge Name

Passage Text

• The parameters within which the principle of subrogation applies are now well settled...
• In the circumstances, would the Plaintiff be held partly liable in negligence as stated in the defendant's defence?
• It is difficult to find that the Defendant satisfactorily performed its contractual obligations as expected of a professional plumbing contractor...

Damages / Relief Type