A Kenyan contractor has won court approval to claim Sh23 million from the Somalia government for breach of contract in the renovation of its embassy in Nairobi seven years ago.
Justice Alfred Mabeya allowed Kingsley Construction Limited to claim Sh23,493,004 as general damages after the Federal Republic of Somalia failed to respond to the claim despite being served with the court papers.
The construction company said it entered into a contract with the Somalia embassy in 2016 to renovate its premises at Jabavu Likoni Lane off Dennis Pritt Road Nairobi. The cost of the work was Sh53.5 million.
The company told the court that the embassy breached the agreement by failing to allow Kingsley's staff access to the project site and by failing to pay the outstanding sum of Sh23.4 million. It added that the embassy terminated the contract without notice.
In its court papers, Kingsley demanded payment of Sh23.4 million as general damages plus interest.
The court noted that Kingsley served the Somali government with the court papers through DHL Express International Shipping, an internationally recognised courier service provider, in November 2021. Kingsley attached the shipping receipt as evidence.
The foreign government did not appear in court or file a defence, prompting the company to ask the court to rule in its favour.
"Having considered the evidence produced, this court is satisfied that service was done in accordance with the provisions of the law. Having been duly served, the defendants failed to enter appearance contrary to the Civil Procedure Rules 2010," said Justice Mabeya.
Having been served on November 2, 2021, the Federal Republic of Somalia was to enter appearance and file its defence within 14 days.
"The defendants having failed to enter appearance after summons had been duly served upon them, I enter judgment against them on the liquidated claim accordingly plus interest and costs. The unliquidated claim be listed for trial," ruled the judge.
The court said the dispute was about a commercial transaction and that the Federal Republic of Somalia and the Attorney General of Kenya were properly sued.
The company had originally sued the embassy, but the court, in a ruling dated July 16, 2020, said the embassy could not sue or be sued.
However, the court said it was open to Kingsley to sue the Federal Republic of Somalia, but not its embassy in Kenya.
The court noted that international law recognises that a state does not enjoy immunity from suit in respect of ordinary commercial transactions.
It also found that the defence of sovereign immunity was not available to a State if it was not acting in a governmental capacity, but in a private or commercial capacity, when it entered into a contract with the plaintiff.
In September 2019, Kingsley accused the embassy of detaining and torturing their messenger who was attempting to deliver court documents.
