When lucrative repairs tender at high-end school turned costly for contractor

When Johlive Builders and Fabricators won a tender to renovate a multi-purpose hall at St Andrew’s School Turi three years ago, the firm was happy to secure the mouthwatering deal.

The company bagged the contract after competitive bidding to revamp the facility known as Baden Powell Hall and the works entailed replacing the roof, the ceiling, door, and flooring.

It also included routing of electric cables in conduits and cable trays, fitting lightning arrestors, and supplying and installing fire hydrants and hose reels.

The contractor moved to the site on April 6, 2021, and fenced off the hall in readiness for the renovations.
About three months later, tragedy struck, which proved costly for the contractor.

It was on a cold Sunday afternoon on July 4, 2021, just after the contractor’s last worker left the site and secured the place to close for the day that a security guard notice smoke from the premises being renovated.

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Mr Benard Osiho Oduku, the security guard, informed the court that he rushed to the hall but found the place locked.

He broke the padlock and noticed that the fire was on the building’s roof. He alerted his colleagues who sounded the alarm.

The blaze was contained by workers, with the assistance of fire brigade teams from Timsales and the Nakuru county firefighters. The damage to the hall was extensive and became the subject of a court case.

Last month, a High Court judge ruled in favour of the school and directed the contractor to pay Sh25.2 million to the institution.

According to the judge, although there was no direct evidence showing negligence on the part of the contractor, the absence of a clear explanation as to the cause of the fire meant the contractor takes the blame.

“In the absence of a satisfactory explanation from the defendant (the contractor) on what caused the fire, it is more likely than not that the effective cause of fire whatever it may have been, was some act or omission of the defendant’s employees and or servants,” Justice Heston Nyaga ruled.

The judge said taking into account the uncertainty as to the cause of the fire and considering the presence of the contractor’s employees at the site just before the fire was detected, the doctrine of Res ipsa loquitur was properly invoked.

The doctrine of Res ipsa loquitur is invoked when there is no evidence of negligence in the absence of an explanation of the cause of an accident.

The court was told the cause of the fire could not be established although there were claims of electric fault, while the contractor blamed it on the institution, saying it would have been a case of arson. The board on its part accused the contractor’s employees of negligently causing the fire whereas the contractor maintained that there are cases where clients start a fire to get compensation.

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According to the contractor, the cause of the blaze should be blamed on the management of the school because they failed to ensure that the site was guarded properly and made it prone to intruders.

The contractor further submitted that the management of the institution had failed to install a surveillance system to keep off ‘malicious employees’, including former teachers, who might have sneaked into the compound and caused the fire.

The firm also submitted that although the school was compensated through an insurance policy, it does not translate into an admission of negligence as it was a no-fault policy.

The submission was countered by the school stating that a guard was patrolling the surrounding area that was fenced and cordoned off by the contractor, and that the place could only be accessed by the contractors.

At the time the fire broke out, no one was at the site as its last worker had checked out.

The school informed the court that the incident was reported to the police and its insurer, GA Insurance Limited started the process of indemnifying the loss.

The insurer further contracted insurance loss adjusters Cunningham Lindsey Kenya Limited to carry out investigations, survey, adjust the loss, and recommend avenues for recovery of the damaged multi-purpose hall.

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The court heard that the total value of the damaged structures was Sh22.5 million.

Further evidence submitted to the court was that there was only one power point on the premises and that the County Government of Nakuru could not ascertain the cause of the fire.

Mr John Kyago King’ori, a director of Johlive Builders and Fabricators confirmed securing the contract but denied that part of the job included installing or rerouting electric cables and appliances as alleged.

According to Mr King’ori, the main duties were repairing the roof, ceiling, and floor, extension of the ablution block, demolition of windows, plumbing work, and pipework and trunking but without installing electric cables.

He said the contractor could not be held responsible for the acts that occurred after their working hours as he maintained the school workers had access to the premises as they were using the boiler.

Although he said the school was duty-bound to offer security to the premises, Mr King’ori said the contractor had exclusive control of the site only during working hours.

He said there is no evidence direct or circumstantial to show that the fire was caused by electrical failure.

Mr King’ori dismissed the report by Cunningham Lindsey, saying the firm was appointed to quantify the losses and not to investigate the cause of the fire.

Justice Nyaga said after analysing the evidence adduced by both parties the management of the school proved its case on a balance of probability.

“From the above citations, it is clear that where there is direct evidence available as to how an accident occurred, the case must be decided on that evidence alone,” the judge said.

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