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Court orders plumber to pay Sh30m for flood damage
To prove its case, Devshibhai presented expert reports that demonstrated the extent of the damage and links to the plumbing work. Allied Plumbers denied liability and negligence allegations.
A house construction firm has received court approval to recover Sh29.7 million from a plumbing company as compensation for flood-linked damages to a house in Nairobi's Muthaiga area.
In the judgment delivered by Justice Janet Mulwa on Friday, Devshibhai & Sons Limited was awarded the amount for damage caused by the negligence of Allied Plumbers Limited agents in March 2015 at a residential house.
Devshibhai had been contracted to construct a double-storey residential house in Old Muthaiga, while Allied Plumbers handled plumbing and drainage installation.
However, on March 9, 2015 - a day before the site handover to the owner - the premises suffered extensive water damage from leaking roof tanks installed at the site.
Devshibhai sued through subrogation rights (where an insurer assumes the client's legal position) to recover compensation paid by Occidental Insurance Company for losses caused by the plumbing firm's actions.
To prove its case, Devshibhai presented expert reports that demonstrated the extent of the damage and links to the plumbing work. Allied Plumbers denied liability and negligence allegations.
However, the court found the plumbing firm professionally negligent, noting its defence about ball valve failure was contradicted by evidence that plumbing works had not been inspected for a year before the incident, and the final testing had not been conducted.
A defence witness had also stated that the incident took place due to the ball valve's manufacturer's defect, but produced no report in court to show the manufacturer’s report on the defects.
"It is difficult to find that the defendant (Allied Plumbers) satisfactorily performed its contractual obligations as expected of professional plumbing contractors," said Justice Mulwa.
She also rejected the company's 'force majeure' defense (unforeseen events beyond a party's control), stressing that the defendant did not satisfactorily perform its contractual obligations.
"The defence of force majeure cannot be applicable in the circumstances herein. It is clearly a matter of professional negligence by the defendants' servants and or agents without involvement by the plaintiff or at all," said Justice Mulwa.
Considering that the site remained uninspected for one year, yet it was to be handed over the next day of the incident, the judge said "acts of God cannot be invoked to justify the obvious professional negligence by the defendant, by its agents or servants".
She stated that since the plumbing firm had the site at the time of the incident, it was the only one that could establish the truth on whether the plumber's workers or agents had switched off the water pump.
The judge emphasised the plumbing company's duty of care under their sub-contract, allowing Devshibhai's insurer to claim reimbursement since both parties had insurance coverage.
"It is established law that an insurer may recover payments from culpable parties after compensating their client," concluded Justice Mulwa.
The court concluded that, though the plumbing firm denied that any damage to the suit property was caused as a result of its negligence, it did not offer any other probable cause.
