A hydro-geological report does not itself establish competent technical work. Here, the contractor selected its preparer. The Court of Appeal also examined whether the client's payments made him a party in breach.
A land-development contract, not a title contest
Mwanake v Muthamia trading as Muthamia Enterprises, Nairobi Civil Appeal No. 433 of 2018, was decided by the Court of Appeal on 20 September 2024. This second appeal, through Kitui High Court from Mwingi Civil Suit No. 59 of 2015, concerned borehole services, not ownership. (Pages 1-3, paragraphs 1-5; page 13, paragraph 24; page 22, closing.)
The client alleged reliance on the report, inadequate yield and missing agreed reports. The contractor denied breach and counterclaimed for a balance. These were pleaded positions, not findings on every allegation. (Pages 2-5, paragraphs 3-8.)
The trial court ordered refunds, dismissed the counterclaim and declined the 20% contractual fine. The High Court reduced recovery to the survey fee, finding both parties in breach. The Court of Appeal questioned that reasoning and its departure from the grounds and defence advanced. (Pages 5-8, paragraphs 9-15; pages 13-14, paragraphs 24-26.)
What the record showed about professional duties
The contractor arranged and charged for the survey. The judgment recorded an unqualified, unregistered preparer and absence of the required water-authority licence and borehole number. These are historical findings, not an assessment of anyone's present qualifications. (Pages 16-18, paragraphs 29-33.)
The contractual payment stages mattered. The agreements distinguished the initial drilling, additional depth and a retained balance payable against a water-analysis report. The court found that the client had met his payment obligations. Paying further amounts did not make him a defaulting party in the way the High Court had suggested. (Pages 15-16, paragraph 28; pages 19-21, paragraphs 36-38.)
Because the contractor held himself out as an expert and selected the surveyor, the court rejected requiring this client to investigate compliance or personnel qualifications. That is not a general exemption from landowner obligations. (Pages 18-19, paragraphs 34-35.)
The refund clauses need separate reading
The appeal succeeded. The Court of Appeal set aside the High Court decision except for its survey-fee refund, and substituted the trial court's orders. It then specified the following final directions:
- Refund KSh 1,035,000 and KSh 45,000, with interest from the date of filing suit as stated in the trial judgment.
- Refund KSh 60,000 for the survey fee as separately ordered by the High Court.
- Award the client costs in the Court of Appeal and the courts below, with interest on those costs.
These are the separate clauses in paragraphs 39(a)-(c), on pages 21-22. They should not be replaced by a simplified statement that only the survey fee was recoverable. The interest wording in clause (a) is not repeated in clause (b), which states no rate or interest start date.
There is an important reading limit. The narrative includes the survey fee among the payments, while the closing order lists its refund separately. This note preserves that wording without reconciling it into a single net award. The final clauses do not state an interest rate and should not be rewritten as an express award of the contractual 20% sought earlier. (Pages 11, 15-16 and 20-22, paragraphs 21, 27-29 and 37-39.)
Questions for a borehole project file
- Who is contractually responsible for selecting qualified technical personnel and obtaining approvals?
- Which survey, drilling, pump-test and water-analysis records must be delivered, and when?
- Which payment belongs to which agreed performance stage?
- Do the judgment and decree leave a monetary or implementation question requiring clarification?
Those are practical questions for qualified technical and legal advisers. They do not change this court's finding that the client had performed his payment obligations.
Source and historical limits
This account uses the official Judiciary September 2024 collection, specifically the 22-page Civil Appeal No. 433 of 2018 judgment, paragraphs 1-40, read on 30 September 2026. Later review, correction, payment and enforcement history have not been researched for this article. The article does not establish present groundwater yield, permit status, ownership or enforceability.
If considering ArdhiScore, review its screening scope and limitations. Screening does not certify groundwater suitability, engineering work or title, and cannot guarantee that every relevant record will be found.