Matters in the work and drawings by the

Matters in dispute consisted of allegations by the plaintiff that any extra work done by it was to be paid for on the basis of schedule of prices set out in the contract; that the sites were not made available to the plaintiff until about July, 1981; that the plaintiff performed the contract but was neither paid the sum of Kshs 978,644.50 for Certificate No 3 nor Kshs 8,017,935 for extra work certificate Nos 1,2 and 3 which extra work the plaintiff alleged was occasioned by the changes and variations made in the work and drawings by the defendant; that the defendant terminated the contract wrongfully and without notice and forcibly ejected the plaintiff from all the sites and took possession of the materials thereat; that the defendants prematurely and wrongfully called in the Performance Bond said; that the unlawful determination of the contract resulted in special damages to the plaintiff in the sum of Kshs 1,263,900 in respect of one month’s salary paid by the plaintiff to its staff in lieu of notice to terminate their services and for materials purchased and or on site. By reason of these allegations the plaintiff claimed general and special damages plus interest.
The defendants denied these allegations and on its behalf it is pleaded that the plaintiff failed to carry out the works with due diligence to the reasonable satisfaction of Acres International Limited ,the defendant’s agent and manager of the project which had formed the opinion that the completion date of the contract could not be met by the plaintiff; that notices to that effect were given to the plaintiff by letters dated August 25, 1985 and November 18, 1981 respectively in terms of Clause of the Specifications General Conditions of contract that are referred as the conditions; that as the plaintiff failed inter alia to provide adequate assurances that certain defaults would be rectified and the work satisfactorily completed the defendant, by letter dated December 10, 1981, cancelled the contract under Clause of the said conditions. The defendant stated that the plaintiff did not submit certificate No 3 or extra work certificate No 2 until October 27, 1982 and never submitted extra work certificate No 3 at all.

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