BY SAM ALFAN .
Architectural Consultation Services has lost a bid get a Sh24 million payment from Law Society of Kenya (LSK) over a housing project in Kwale County..
Instead, Justice Josephine Mongare awarded the architectural firm Sh1 million for services offered to LSK Housing Cooperative Ltd in a project dubbed Wakili palms holiday homes in Kwale county.
The judge said she was satisfied that the Architectural consultation service proved its case to the required standard on a balance of probabilities that it rendered professional services and deserved payment for the work done.
“The court awards the Architectural consultation service Sh1 million on a quantum merit basis as settlement of its interim fee note,” ruled Judge Mongare.
The judge said the absence of a formal contract cannot be taken to mean that no services were rendered by the firm to the LSK housing society. Indeed.
“I note that at an interim stage, the firm raised an interim fee note that was given to the LSK housing society and the same was not acted upon nor was it settled. The firm deserves some form of payment, at least on a quantum merit basis for the work and effort he applied towards the Project,” noted the judge.
She added that LSK housing society failed to provide any evidence to the Court to disprove the assertions by the firm that it devoted considerable time, energy and resources in amending, refining, developing and customizing the Housing’s design brief and necessitating its interaction with the firm.
In the suit, the company claimed that LSK Housing scheme initiated a project styled Wakili Palms Holiday Homes, to be constructed on a parcel of land in Galu Kinondo in Kwale County.
LSK would subsequently sell the homes to its members and to the general public.
The lawyers; body prepared a design brief and invited several architectural firms to apply to be considered as the Project Consultants in a competitive recruitment process.
The company claimed that having been specifically invited by the LSK housing society to participate in the process.
Having been requested to make a presentation as to the viability of the said project on the basis of the society’s design brief, the firm said it duly made its presentation on the 29 July 2019 as was required of it as with the other participating architectural firms.
The company added that it was informed it that it had been successfully selected from the other applying architectural firms and was therefore urged to proceed in refining the design brief in order to meet the requirements and the satisfaction of the LSK and its stakeholders for the proposed project.
The firm told the court that on the LSK’s specific request and instruction, it devoted considerable time, energy and resources in amending, refining, developing and customizing the LSK’s said design brief.
This necessitated its interaction with the LSK housing society in this respect on 31 July 2019, 21 August 2019 and 5th September 2019.
The firm claims that the society demanded that it presents a revised project concept to it for its appraisal in anticipation of a presentation to be made to it, its members and the general public on 28 September 2019 on the viability of the said project and that in obedience and in compliance to the said request.
The forwarded to LSK housing society the requested revised brief together with an interim fee note in the Sh. 696, 000.00 on 16 September 2019 to cover the costs it had incurred so far.
The firm stated that in one of its said communications, it was requested to resend the project concept and draft consultancy contract to the Defendant which elicited no response from the housing society until the 22 June 2021 when the housing society requested the firm to advise it on the way forward as a result of the adverse effects of the Covid-19 pandemic.
The firm argued that there was no response to its demands and having received no communication whatsoever from the Defendant it proceeded on 31 March 2022 to demand from the firm payment of its architectural fees and costs incurred amounting to Sh. 24,502,245.14.
LSK housing society denied the claim stating that the parties were in a non-contractual understanding and engagement to collaborate to impress upon existing and potential purchasers of plots of land in the suit property for suitable development.
Further, LSK said the firm was to contribute its expertise and the housing society bringing together the said existing and potential purchasers (investors) and that the appointment of an architect.
Any other professional consultant was predicated upon the said existing and potential purchasers (investors) accepting the said development(s) proposed to them including the development costs, LSK said.
And depending on the nature of development(s) accepted by the existing and potential purchasers, such consultants would likely be but not certainly engaged by the appropriate/ resultant entity or entities.
The housing society admitted that indeed the firm has never been appointed as a project consultant (formally or informally) for the reasons stated herein and as such, the alleged request/demands was/is premature and misconceived.
