The agreement and contractual conditions for the construction work – This document is the result of our joint efforts with the Kenya Architectural Association… As mentioned above, there was no further correspondence, the complainant was allowed to begin construction immediately and obtained possession of the land. Subsequently, disputes broke out and the contract was eventually terminated. It was proposed that the case be referred to an arbitration tribunal rather than lay courts. Subsequently, the applicant indicated that the termination of the contract was not in accordance with the 1999 agreement and, in particular, article 38 of the agreement. In this case, it is clear that these conditions were applicable. There was an offer as part of an offer accepted at the price under absolute and unqualified conditions. Then there was the absolute acceptance of the changes in the contract and by the behaviour of the site to be given to the plaintiff by the defendant “immediately”. The issue of the inclusion of the 1999 agreement was discussed above and the court found that the standard form terms issued by the Kenya Architectural Society and the Joint Building Council were repeated for the parties and were binding on the parties.
The use of the term “in accordance with the contract” is a strong sign that, prior to the execution of a formal document, there should be no enforceable obligation, but that a declaration assuming that a formal contract is in preparation may prevent a binding contract. The parties submitted written submissions and quoted from the authorities. The evidence shows that, by correspondence, the parties reached an agreement on the work to be done, the price and the nature of the payments to the applicant. The applicant received property and was allowed to begin his work. Apart from the correspondence, no formal agreement was prepared or executed. The work was: “An offer that provides until a formal agreement is prepared and executed, as well as your written acceptance constitutes a mandatory acceptance between us.” The defendant refused to initiate arbitration proceedings in which he stated that “the 1999 agreement” did not engage him. They had not signed it. The evidence presented by the witnesses shows that the parties are not well aware of the terms of the “1999 agreement.” They did not meet the conditions that were written there.
They did not use experts, architects or volume surveyors. The payment was not made under the architect`s certificates. The parties had formulated a method to determine the amount of the payment in the rest of the work.