1. Fraud rarely announces itself through obvious falsehoods. More often, it presents itself through documents appearing regular on their face, signatures seemingly authentic and transactions carefully structured to inspire confidence.
2. Courts must therefore remain vigilant, for judicial processes ought not to be employed to sanitise or enforce obligations founded upon forgery, deception or illegality. In disputes involving contested contractual instruments, the Court must carefully interrogate not merely the formal appearance of documents but also the surrounding circumstances, objective evidence and consistency of the evidentiary record.
3. The Plaintiff commenced this suit through the Plaint dated 15th May 2024. The Plaintiff pleaded that it was engaged by the Defendant to provide consultancy services relating to groundwater extraction and atmospheric water harvesting projects within Nyamira, Kisii, Kericho, Bomet, Kisumu and Homa Bay Counties.
4. The Plaintiff further pleaded that the parties entered into a Consultancy Contract dated 20th January 2020 pursuant to which the Plaintiff was retained to undertake consultancy services for the Defendant at an agreed consideration of KES 35,150,186 payable in instalments on or before 15th December 2021.
5. According to the Plaint, the Plaintiff proceeded to undertake the consultancy assignment and rendered the services contemplated under the agreement but the Defendant neglected and/or refused to settle the consultancy fees allegedly due and owing. The Plaintiff consequently pleaded breach of contract and sought recovery of the outstanding consultancy fees together with interest and costs.
6. On the basis of the foregoing, the Plaintiff sought judgment for the following orders:
1) Payment of all monies owed by the Defendant to the Plaintiff as pleaded in the Plaint, being KES. 35,150,186.
2) Interest on the sum in (1) above at court rates.
3) Costs of the suit.
4) Any other relief that this Honourable Court may deem just and fit to grant
7. The Defendant entered appearance and filed a Statement of Defence dated 13th February 2025 denying the Plaintiff's claim in its entirety. The Defendant denied entering into the alleged Consultancy Contract dated 20th January 2020 and further denied receiving any consultancy services from the Plaintiff.
8. The Defendant further pleaded that the Plaintiff's claim was founded upon fraudulent misrepresentation, forged documents and illegality. The Defendant additionally challenged the Plaintiff's professional qualifications and statutory registration to undertake the consultancy services allegedly rendered.
9. The Defendant also pleaded that Ghislaine Therese Gontier had previously been adjudged to be suffering from mental disorder under the Mental Health Act and that Fernand Lois Selwyn Gendron had been appointed guardian and manager of her estate.
10. The Defendant consequently prayed for dismissal of the Plaintiff's suit with costs.
11. At the hearing, the Plaintiff, Simon Peter Wainaina Njoroge described himself as a businessman engaged in building and construction services.
12. In support of the claim, the Plaintiff produced the Consultancy Contract dated 20th January 2020 as P Exhibit 1. The agreement bore the name and signature of Simon Peter Wainaina Njoroge on behalf of Miradi Ujenzi Consultancy together with a signature said to be that of the Defendant, Ghislaine Therese Gontier, described therein as the client. The agreement related to consultancy services relating to groundwater extraction and atmospheric water harvesting projects within several counties in Kenya at an agreed consultancy fee of KES. 35,150,186.
13. It was the Plaintiff’s evidence that after appending his signature to the agreement, the document was taken to the Defendant through the Defendant’s employee one Musyoka and later returned bearing what he asserted to be the Defendant’s signature. He nevertheless acknowledged that execution of the agreement by the Defendant did not occur in his presence.
14. The Plaintiff further tendered in evidence a feasibility study report produced as P Exhibit 2. The report related to proposed groundwater extraction and atmospheric water harvesting projects within Kisii, Nyamira, Kisumu and Homa Bay Counties and contained technical assessments, climatic analysis, feasibility projections and implementation proposals relating to the proposed projects. According to the Plaintiff, the report was prepared following site visits and collection of data from the respective project areas.
15. Also produced were Interim Certificate No. 001 dated 17th April 2020 as P Exhibit 3, Interim Certificate No. 002 dated 07th August 2020 as P Exhibit 4 and Interim Certificate No. 003 dated 15th January 2021 as P Exhibit 5. The certificates bore the name and signature attributed to one Martin Wanjau as quantity surveyor and each certified consultancy fees in the sum of KES. 11,716,728.67 allegedly payable pursuant to the Consultancy Contract dated 20th January 2020.
16. The Plaintiff additionally produced Certificate of Registration serial number 426592 issued on 12th September 2021 as P Exhibit 6(a), Contractor Annual Practising Licence serial number 426592 issued on 12th September 2021 as P Exhibit 6(b) and Contractor Annual Practising Licence serial number 45579 issued on 08th August 2023 as P Exhibit 6(c).
17. The Plaintiff maintained that despite completion of the consultancy assignment contemplated under the Consultancy Contract, payment of the agreed consultancy fees was neither made nor forthcoming.
18. During the course of testimony, it was explained that paragraph 6 of the Plaint erroneously referred to an agreement dated 06th February 2017 instead of the Consultancy Contract dated 20th January 2020. It was further acknowledged that the Plaintiff was unfamiliar with the Defendant’s signature. It was also acknowledged that neither the Plaintiff nor Miradi Ujenzi Consultancy Limited was registered with the Engineers Board of Kenya. Confirmation was equally given that the bank account appearing in the Consultancy Contract dated 20th January 2020 had been opened on 07th September 2022.
19. With regard to the feasibility study report, the Plaintiff acknowledged that the document neither disclosed its maker nor bore a signature and was unsupported by raw data. He nevertheless maintained that the report was genuine and stated that the consultancy assignment involved several experts and consultants.
20. Upon being shown the Forensic Document Examination Report dated 16th September 2025, the Plaintiff disputed the conclusions reached therein and maintained that the signature appearing on the Consultancy Contract dated 20th January 2020 belonged to the Defendant.
21. In support of the defence, two witnesses testified on behalf of the Defendant. The first defence witness was Emmanuel Karisa Kenga, a forensic document examiner with over thirty years’ experience in forensic document examination.
22. The witness produced the Forensic Document Examination Report dated 16th September 2025 as D Exhibit 1. His evidence was that upon comparing the questioned signature appearing on the Consultancy Contract dated 20th January 2020 against specimen and known signatures attributed to the Defendant, he formed the opinion that there existed no agreement between the questioned signature and the specimen signatures.
23. The witness explained that the document supplied for examination was a photocopy and that the examination was undertaken using tools including a microscope and magnifying glass. He nevertheless maintained that the conclusions contained in the report were professionally reached notwithstanding the absence of specialised equipment such as a Video Spectral Comparator.
24. The second defence witness was Fernand Lois Selwyn Gendron, the Defendant’s nephew, who adopted his witness statement dated 03rd October 2025 as part of his evidence in chief and produced the Order issued in Milimani Family Division Miscellaneous Application No. E169 of 2021 as D Exhibit 2, by which the Defendant was declared to be a person suffering from mental disorder within the meaning of section 26 of the Mental Health Act and the witness appointed guardian and manager of her affairs and estate.
25. The witness further produced the letter dated 12th August 2025 from the National Construction Authority as D Exhibit 3, communicating that Simon Peter Njoroge and Miradi Ujenzi Consultancy were not reflected in the Authority’s registration records, and the letter dated 10th June 2025 from the Engineers Board of Kenya as D Exhibit 4, confirming that neither Simon Peter Njoroge Wainaina nor Miradi Ujenzi Consultancy Limited was registered with the Engineers Board of Kenya.
26. The witness also produced an email printout as D Exhibit 5 in support of the contention that the Defendant was computer illiterate and had neither created nor operated the email address allegedly belonging to her and allegedly used by the Plaintiff for service of pleadings in these proceedings.
27. The witness further placed reliance on email correspondence from KCB Bank produced as D Exhibit 6, confirming that the bank account appearing in the Consultancy Contract dated 20th January 2020 had been opened on 07th September 2022.
28. The witness additionally produced correspondence from the Board of Registration of Architects and Quantity Surveyors Kenya as D Exhibit 7, stating that Martin Wanjau, whose name and signature appeared on the interim certificates relied upon by the Plaintiff, was not registered with the Board.
29. He further relied on Special Issue Kenya Gazette Notice No. 8630 dated 24th August 2021 produced as D Exhibit 8, containing the register of contractors under the National Construction Authority for the period between 01st January 2020 and 30th June 2020, and pointed out that neither Simon Peter Njoroge Wainaina nor Miradi Ujenzi Consultancy Limited appeared among the registered contractors.
30. The witness testified that the Defendant had not travelled outside Nairobi for several years, denied that she entered into the Consultancy Contract dated 20th January 2020 and maintained that the signature appearing on the agreement did not belong to her.
31. Parties thereafter filed written submissions together with authorities which I have carefully considered alongside the pleadings, oral evidence and documentary exhibits. In my view, the following issues arise for determination:
1. Whether the Plaintiff proved that the Consultancy Contract dated 20th January 2020 was executed by the Defendant and constituted a valid and enforceable contract between the parties.
2. Whether the Plaintiff proved the authenticity, validity and reliability of the documents relied upon in support of the claim.
3. Whether the Plaintiff proved that it possessed the statutory registration and professional capacity necessary to undertake the consultancy services contemplated under the Consultancy Contract dated 20th January 2020.
4. Whether the Plaintiff proved that it rendered the consultancy services alleged and thereby became entitled to the sum claimed in the Plaint.
5. What orders should issue.
32. The first issue for determination is whether the Plaintiff proved that the Consultancy Contract dated 20th January 2020 was executed by the Defendant and constituted a valid and enforceable contract between the parties.
33. The Plaintiff’s claim was founded principally upon the Consultancy Contract dated 20th January 2020 produced as P Exhibit 1. According to the Plaintiff, the agreement was executed between the parties in respect of consultancy services relating to groundwater extraction and atmospheric water harvesting projects.
34. The Plaintiff testified that after signing the agreement, the same was allegedly taken to the Defendant through one Musyoka who later returned it signed. The Plaintiff however admitted during cross-examination that he did not witness the Defendant sign the agreement and further admitted that he was unfamiliar with the Defendant’s signature.
35. On the basis of the foregoing, the Plaintiff submitted that there existed a valid and enforceable contract between the parties. Reliance was placed on Nyaoro v Kavila [2025] KEHC 4409 (KLR), where the Court discussed formation of contracts through conduct and objective intention of parties. The Plaintiff invoked that authority in support of the argument that a binding agreement may arise from the conduct of parties even in the absence of formal execution.
36. The Plaintiff further relied on RTS Flexible Systems Ltd v Molkerei Alois Muller GmbH & Co KG [2010] UKSC 14 where the United Kingdom Supreme Court stated that existence of a binding contract depends upon what the parties objectively communicated by words or conduct and not upon undisclosed subjective intentions. The authority was cited to support the proposition that the surrounding conduct and dealings between parties may establish contractual intention.
37. The Plaintiff additionally relied on Rose & Frank Co v JR Crompton & Bros Ltd [1925] AC 445 for the proposition that a contract only arises where parties intended to create legal relations. The Plaintiff relied on the decision to contend that the Consultancy Contract reflected such intention.
38. Reliance was also placed on Abdulkadir Shariff Abdirahim & Another v Awo Shariff Mohammed t/a A.S Mohammed Investments [2014] eKLR where the Court of Appeal held that there is no general legal requirement that all agreements be reduced into writing. The authority was invoked to support the argument that the Court ought to consider the conduct and surrounding circumstances of the transaction.
39. The Plaintiff further relied on Ali Abdi Mohamed v Kenya Shell & Company Limited [2017] eKLR for the proposition that contractual obligations may be inferred from conduct and surrounding circumstances even where formalities are disputed.
40. On the issue of the disputed signature and allegations of forgery, the Plaintiff relied on In re Estate of the Late Arvind Kanji Premji Patel Moza Abdillahi Mohamed [2024] KEHC 6888 (KLR) where the Court considered competing forensic evidence and observed that expert evidence is not automatically binding upon the Court but must be weighed together with all the surrounding circumstances and evidence on record. The Plaintiff relied on that authority to urge the Court not to accept the forensic report tendered by the Defendant uncritically.
41. The Plaintiff also relied on Thomas v Toyota East Africa Ltd [2025] KECA 471 (KLR), Pamba Ong’weno Amila v John Juma Kutolo [2015] KECA 867 (KLR) and Kanjina v Kanjina & 2 Others [2023] KECA 243 (KLR) on the standard of proof applicable to allegations of fraud. The Plaintiff invoked those authorities to argue that allegations of forgery and fraud attract a standard of proof higher than a mere balance of probabilities though not beyond reasonable doubt.
42. The Defendant on the other hand submitted that the agreement relied upon by the Plaintiff bore a forged signature and relied on the evidence of DW1, Immanuel Kenga Kanisa, together with the Forensic Document Examination Report dated 16th September 2025 produced as D Exhibit 1, in support of the contention that the questioned signature appearing on the Consultancy Contract dated 20th January 2020 did not originate from the Defendant.
43. The Defendant further relied on Josephine Mwikali Kikenye v Omar Abdalla Kombo & another KECA 512 (KLR) which cited with approval the decision in Gallie v Lee & Another [1969] 1 All ER 1062 to the effect that where a signature is forged, the resulting document becomes a nullity incapable of conferring legal rights or obligations upon the purported signatory. The Defendant relied on the authority to contend that the impugned agreement could not found any enforceable claim if execution was not proved.
44. The Court has carefully considered the evidence placed before it. Although the Plaintiff maintained that the Consultancy Contract was genuine, the Plaintiff expressly admitted that he neither witnessed the Defendant execute the agreement nor possessed familiarity with the Defendant’s signature.
45. Further, the alleged intermediary one Musyoka, who was said to have transmitted the agreement to and from the Defendant, was never called as a witness. The Plaintiff therefore failed to place before the Court direct evidence linking the Defendant to execution of the agreement.
46. The Court has further considered the forensic evidence tendered by DW1 together with the Forensic Document Examination Report dated 16th September 2025. The forensic examiner concluded that there existed no agreement between the questioned signature appearing on the Consultancy Contract dated 20th January 2020 and the specimen and known signatures attributed to the Defendant.
47. Although the Plaintiff criticised the forensic report on account of the document examined being a photocopy and the absence of specialised equipment such as a Video Spectral Comparator, no contrary expert evidence was tendered by the Plaintiff to rebut the conclusions reached by the forensic examiner.
48. I have also considered the Plaintiff’s reliance on In re Estate of the Late Arvind Kanji Premji Patel Moza Abdillahi Mohamed (supra). I agree with the principle stated therein that expert evidence is not automatically binding and must be weighed together with the totality of the evidence on record. In the present matter however, the forensic evidence is materially reinforced by the surrounding circumstances disclosed by the evidence. In particular, the Plaintiff admitted lack of familiarity with the Defendant’s signature, the alleged intermediary was not called as a witness and no independent evidence was produced demonstrating that the Defendant ever acknowledged, adopted or acted upon the alleged agreement.
49. The authorities relied upon by the Plaintiff on formation of contracts through conduct including Nyaoro v Kavila (supra), RTS Flexible Systems Ltd v Molkerei Alois Muller GmbH & Co KG (supra), Rose & Frank Co v JR Crompton & Bros Ltd (supra), Abdulkadir Shariff Abdirahim & Another v Awo Shariff Mohammed t/a A.S Mohammed Investments (supra) and Ali Abdi Mohamed v Kenya Shell & Company Limited (supra) correctly state the applicable principles on contractual formation and objective intention. However, those authorities presuppose existence of credible evidence demonstrating conduct attributable to the parties from which assent may objectively be inferred.
50. In the present matter, the foundational question is whether the Defendant executed, authorised or adopted the impugned agreement at all. In the absence of credible evidence linking the Defendant to the Consultancy Contract dated 20th January 2020, the authorities relied upon by the Plaintiff do not assist its case.
51. I have equally considered the authorities cited by the Plaintiff on the standard of proof in allegations of fraud namely Thomas v Toyota East Africa Ltd (supra), Pamba Ong’weno Amila v John Juma Kutolo (supra) and Kanjina v Kanjina & 2 Others (supra). I agree that allegations of fraud and forgery must be strictly proved to a standard higher than a balance of probabilities. Nevertheless, having evaluated the entire evidentiary record, I am satisfied that the Defendant discharged that burden through the unrebutted forensic evidence together with the surrounding circumstances casting doubt upon authenticity of the impugned agreement.
52. Consequently, I am not satisfied that the Plaintiff proved, on a balance of probabilities, that the Defendant executed the Consultancy Contract dated 20th January 2020.
53. A valid contract presupposes consensus ad idem, intention to create legal relations, certainty of terms, and lawful consideration. In the present matter, the Plaintiff failed to establish the foundational requirement that the Defendant entered into or assented to the alleged agreement.
54. In the absence of proof that the Defendant executed, adopted, or assented to the agreement, the Court further finds that no binding contractual relationship arose between the parties.
55. I therefore find that the Plaintiff failed to prove that the Consultancy Contract dated 20th January 2020 constituted a valid and enforceable contract between the parties.
56. The second issue for determination is whether the Plaintiff proved the authenticity, validity and reliability of the documents relied upon in support of the claim.
57. The Plaintiff relied principally on the feasibility study report and the interim payment certificates produced as exhibits during trial and submitted that documentary evidence must be evaluated together with the surrounding circumstances and oral testimony.
58. The Court has carefully considered the feasibility study report relied upon by the Plaintiff. Although the report contained technical discussion relating to groundwater extraction and atmospheric water harvesting proposals, the report neither disclosed its author nor bore any signature identifying the maker.
59. The Plaintiff admitted during cross-examination that he was not the author of the report and that he had engaged unnamed experts to generate the same.
60. The Court has further considered the interim payment certificates relied upon by the Plaintiff. The certificates bore the name and signature attributed to one Martin Wanjau as quantity surveyor.
61. The Defendant however produced correspondence from the Board of Registration of Architects and Quantity Surveyors Kenya indicating that Martin Wanjau did not appear in the Board’s register. With regard to the interim payment certificates and the correspondence from the Board of Registration of Architects and Quantity Surveyors Kenya, the Defendant relied on IL Mattarelo Limited v Michael Bell & another [2018] KEHC 3212 (KLR) and submitted that documentary material founded upon statutory non-compliance ought to be treated with caution by the Court. The authority was relied upon to support the proposition that documents generated in circumstances suggesting professional or statutory irregularity may lack evidentiary reliability.
62. I have considered the principle in the cited case. In the present matter, the evidentiary value of the interim payment certificates was substantially weakened by the uncontroverted correspondence indicating that the purported quantity surveyor whose name appeared on the certificates was not reflected in the Board’s register.
63. The Court has additionally considered the evidence relating to the bank account appearing on the Consultancy Contract dated 20th January 2020. The Defendant produced evidence from KCB Bank showing that the account reflected in the agreement only came into existence on 07th September 2022.
64. The Court finds that the inclusion of bank account details in a document allegedly executed on 20th January 2020, whereas the account itself was only opened more than two years later, raises serious and unexplained doubts regarding the integrity and reliability of the documentation relied upon by the Plaintiff.
65. The Court has further considered the cumulative effect of the unsigned feasibility study report, the absence of identifiable authorship, the lack of supporting raw data, the questioned interim payment certificates, and the unexplained discrepancy in the bank account particulars appearing in the Consultancy Contract dated 20th January 2020.
66. Having considered the totality of the evidence placed before the Court, I find that the Plaintiff failed to establish the evidentiary integrity and reliability of the documents relied upon in support of the claim.
67. The third issue for determination is whether the Plaintiff proved that it possessed the statutory registration and professional capacity necessary to undertake the consultancy services contemplated under the Consultancy Contract dated 20th January 2020.
68. The Defendant tendered documentary evidence from the Engineers Board of Kenya and the National Construction Authority confirming that neither the Plaintiff nor Miradi Ujenzi Consultancy Limited appeared in their registration records.
69. During cross-examination, the Plaintiff admitted that neither he nor the Plaintiff entity was registered with the Engineers Board of Kenya and further admitted absence of documentary proof of professional qualifications.
70. The consultancy services allegedly undertaken by the Plaintiff involved technical assessments relating to groundwater extraction and atmospheric water harvesting projects spread across several counties. Such assignments ordinarily require specialised technical expertise and regulatory compliance.
71. In view of the technical nature of the consultancy services allegedly undertaken, proof of statutory registration and professional qualification constituted an important component of the Plaintiff’s claim.
72. The absence of registration with the Engineers Board of Kenya together with the documentary evidence from the National Construction Authority materially undermined the Plaintiff’s assertion that it possessed lawful professional capacity to undertake the impugned assignment.
73. Consequently, I find that the Plaintiff failed to prove that it possessed the statutory registration and professional capacity necessary to undertake the services contemplated under the Consultancy Contract dated 20th January 2020.
74. The fourth issue for determination is whether the Plaintiff proved that it rendered the consultancy services alleged and thereby became entitled to the sum claimed in the Plaint.
75. The Plaintiff maintained that it undertook feasibility studies, technical assessments and consultancy services pursuant to the Consultancy Contract dated 20th January 2020.
76. The Plaintiff relied on Miller v Minister of Pensions [1947] 2 All ER 372 on the standard of proof in civil cases. The authority was relied upon for the proposition that proof on a balance of probabilities means that a Court must be satisfied that the occurrence of an event was more probable than not.
77. The Plaintiff also relied on Shah & Another v Shah & Others [2003] 1 EA 290, Kimatu Mbuvi t/a Kimatu Mbuvi & Bros v Augustine Munyao Kioko [2007] 1 EA 139, Timsales Limited v Wilson Libuywa [2008] eKLR and Stanley Maina Kagongo v Isaac Kibiru Kahuthia [2022] KEHC 1950 (KLR) in support of the contention that the evidence tendered sufficiently established performance of the consultancy assignment.
78. I have carefully considered the said authorities and the principles stated therein on proof in civil claims are not in dispute. The issue however is whether the evidence tendered by the Plaintiff satisfied that evidentiary threshold.
79. The Court has already made findings regarding the evidentiary shortcomings affecting the contractual documentation, feasibility study report and interim payment certificates relied upon by the Plaintiff.
80. Beyond the disputed documentation, the Plaintiff did not place before the Court independent evidence demonstrating actual execution of the consultancy assignment. No field reports, technical approvals, correspondence acknowledging receipt of consultancy services, invoices, progress reports or minutes relating to the alleged consultancy assignment were produced.
81. Further, although the Plaintiff testified that the consultancy assignment involved several experts and consultants, none of those persons testified before the Court.
82. The Court further notes that the alleged consultancy assignment concerned large-scale technical projects spread across multiple counties involving a substantial contractual sum of KES. 35,150,186. Yet the evidentiary record remained devoid of objective material demonstrating actual implementation, supervision or acknowledgment of the alleged consultancy work by the Defendant.
83. Having considered the totality of the evidence placed before the Court together with the authorities cited by the Plaintiff, I am not satisfied that the Plaintiff proved, on a balance of probabilities, that it rendered the consultancy services alleged in the Plaint.
84. Accordingly, I find that the Plaintiff failed to establish entitlement to the sum claimed in the Plaint.
85. On the issue of costs, Section 27 of the Civil Procedure Act grants the Court discretion to determine by whom and out of what property costs are to be paid, though ordinarily costs follow the event.
86. In the present matter, the Defendant successfully defended the claim and is therefore entitled to costs.
87. From the foregoing analysis, the following orders shall and are hereby issued:
1) The Plaintiff’s suit against the Defendant is hereby dismissed.
2) The garnishee order nisi issued in respect of Defendant’s account No. 1106692314 held by the garnishee at their Kenya Commercial Bank Sarit Centre Branch together with all consequential orders issued pursuant thereto are hereby vacated and discharged forthwith.
3) The Plaintiff shall bear the costs of the suit together with the costs of the garnishee proceedings.
2. Courts must therefore remain vigilant, for judicial processes ought not to be employed to sanitise or enforce obligations founded upon forgery, deception or illegality. In disputes involving contested contractual instruments, the Court must carefully interrogate not merely the formal appearance of documents but also the surrounding circumstances, objective evidence and consistency of the evidentiary record.
3. The Plaintiff commenced this suit through the Plaint dated 15th May 2024. The Plaintiff pleaded that it was engaged by the Defendant to provide consultancy services relating to groundwater extraction and atmospheric water harvesting projects within Nyamira, Kisii, Kericho, Bomet, Kisumu and Homa Bay Counties.
4. The Plaintiff further pleaded that the parties entered into a Consultancy Contract dated 20th January 2020 pursuant to which the Plaintiff was retained to undertake consultancy services for the Defendant at an agreed consideration of KES 35,150,186 payable in instalments on or before 15th December 2021.
5. According to the Plaint, the Plaintiff proceeded to undertake the consultancy assignment and rendered the services contemplated under the agreement but the Defendant neglected and/or refused to settle the consultancy fees allegedly due and owing. The Plaintiff consequently pleaded breach of contract and sought recovery of the outstanding consultancy fees together with interest and costs.
6. On the basis of the foregoing, the Plaintiff sought judgment for the following orders:
1) Payment of all monies owed by the Defendant to the Plaintiff as pleaded in the Plaint, being KES. 35,150,186.
2) Interest on the sum in (1) above at court rates.
3) Costs of the suit.
4) Any other relief that this Honourable Court may deem just and fit to grant
7. The Defendant entered appearance and filed a Statement of Defence dated 13th February 2025 denying the Plaintiff's claim in its entirety. The Defendant denied entering into the alleged Consultancy Contract dated 20th January 2020 and further denied receiving any consultancy services from the Plaintiff.
8. The Defendant further pleaded that the Plaintiff's claim was founded upon fraudulent misrepresentation, forged documents and illegality. The Defendant additionally challenged the Plaintiff's professional qualifications and statutory registration to undertake the consultancy services allegedly rendered.
9. The Defendant also pleaded that Ghislaine Therese Gontier had previously been adjudged to be suffering from mental disorder under the Mental Health Act and that Fernand Lois Selwyn Gendron had been appointed guardian and manager of her estate.
10. The Defendant consequently prayed for dismissal of the Plaintiff's suit with costs.
11. At the hearing, the Plaintiff, Simon Peter Wainaina Njoroge described himself as a businessman engaged in building and construction services.
12. In support of the claim, the Plaintiff produced the Consultancy Contract dated 20th January 2020 as P Exhibit 1. The agreement bore the name and signature of Simon Peter Wainaina Njoroge on behalf of Miradi Ujenzi Consultancy together with a signature said to be that of the Defendant, Ghislaine Therese Gontier, described therein as the client. The agreement related to consultancy services relating to groundwater extraction and atmospheric water harvesting projects within several counties in Kenya at an agreed consultancy fee of KES. 35,150,186.
13. It was the Plaintiff’s evidence that after appending his signature to the agreement, the document was taken to the Defendant through the Defendant’s employee one Musyoka and later returned bearing what he asserted to be the Defendant’s signature. He nevertheless acknowledged that execution of the agreement by the Defendant did not occur in his presence.
14. The Plaintiff further tendered in evidence a feasibility study report produced as P Exhibit 2. The report related to proposed groundwater extraction and atmospheric water harvesting projects within Kisii, Nyamira, Kisumu and Homa Bay Counties and contained technical assessments, climatic analysis, feasibility projections and implementation proposals relating to the proposed projects. According to the Plaintiff, the report was prepared following site visits and collection of data from the respective project areas.
15. Also produced were Interim Certificate No. 001 dated 17th April 2020 as P Exhibit 3, Interim Certificate No. 002 dated 07th August 2020 as P Exhibit 4 and Interim Certificate No. 003 dated 15th January 2021 as P Exhibit 5. The certificates bore the name and signature attributed to one Martin Wanjau as quantity surveyor and each certified consultancy fees in the sum of KES. 11,716,728.67 allegedly payable pursuant to the Consultancy Contract dated 20th January 2020.
16. The Plaintiff additionally produced Certificate of Registration serial number 426592 issued on 12th September 2021 as P Exhibit 6(a), Contractor Annual Practising Licence serial number 426592 issued on 12th September 2021 as P Exhibit 6(b) and Contractor Annual Practising Licence serial number 45579 issued on 08th August 2023 as P Exhibit 6(c).
17. The Plaintiff maintained that despite completion of the consultancy assignment contemplated under the Consultancy Contract, payment of the agreed consultancy fees was neither made nor forthcoming.
18. During the course of testimony, it was explained that paragraph 6 of the Plaint erroneously referred to an agreement dated 06th February 2017 instead of the Consultancy Contract dated 20th January 2020. It was further acknowledged that the Plaintiff was unfamiliar with the Defendant’s signature. It was also acknowledged that neither the Plaintiff nor Miradi Ujenzi Consultancy Limited was registered with the Engineers Board of Kenya. Confirmation was equally given that the bank account appearing in the Consultancy Contract dated 20th January 2020 had been opened on 07th September 2022.
19. With regard to the feasibility study report, the Plaintiff acknowledged that the document neither disclosed its maker nor bore a signature and was unsupported by raw data. He nevertheless maintained that the report was genuine and stated that the consultancy assignment involved several experts and consultants.
20. Upon being shown the Forensic Document Examination Report dated 16th September 2025, the Plaintiff disputed the conclusions reached therein and maintained that the signature appearing on the Consultancy Contract dated 20th January 2020 belonged to the Defendant.
21. In support of the defence, two witnesses testified on behalf of the Defendant. The first defence witness was Emmanuel Karisa Kenga, a forensic document examiner with over thirty years’ experience in forensic document examination.
22. The witness produced the Forensic Document Examination Report dated 16th September 2025 as D Exhibit 1. His evidence was that upon comparing the questioned signature appearing on the Consultancy Contract dated 20th January 2020 against specimen and known signatures attributed to the Defendant, he formed the opinion that there existed no agreement between the questioned signature and the specimen signatures.
23. The witness explained that the document supplied for examination was a photocopy and that the examination was undertaken using tools including a microscope and magnifying glass. He nevertheless maintained that the conclusions contained in the report were professionally reached notwithstanding the absence of specialised equipment such as a Video Spectral Comparator.
24. The second defence witness was Fernand Lois Selwyn Gendron, the Defendant’s nephew, who adopted his witness statement dated 03rd October 2025 as part of his evidence in chief and produced the Order issued in Milimani Family Division Miscellaneous Application No. E169 of 2021 as D Exhibit 2, by which the Defendant was declared to be a person suffering from mental disorder within the meaning of section 26 of the Mental Health Act and the witness appointed guardian and manager of her affairs and estate.
25. The witness further produced the letter dated 12th August 2025 from the National Construction Authority as D Exhibit 3, communicating that Simon Peter Njoroge and Miradi Ujenzi Consultancy were not reflected in the Authority’s registration records, and the letter dated 10th June 2025 from the Engineers Board of Kenya as D Exhibit 4, confirming that neither Simon Peter Njoroge Wainaina nor Miradi Ujenzi Consultancy Limited was registered with the Engineers Board of Kenya.
26. The witness also produced an email printout as D Exhibit 5 in support of the contention that the Defendant was computer illiterate and had neither created nor operated the email address allegedly belonging to her and allegedly used by the Plaintiff for service of pleadings in these proceedings.
27. The witness further placed reliance on email correspondence from KCB Bank produced as D Exhibit 6, confirming that the bank account appearing in the Consultancy Contract dated 20th January 2020 had been opened on 07th September 2022.
28. The witness additionally produced correspondence from the Board of Registration of Architects and Quantity Surveyors Kenya as D Exhibit 7, stating that Martin Wanjau, whose name and signature appeared on the interim certificates relied upon by the Plaintiff, was not registered with the Board.
29. He further relied on Special Issue Kenya Gazette Notice No. 8630 dated 24th August 2021 produced as D Exhibit 8, containing the register of contractors under the National Construction Authority for the period between 01st January 2020 and 30th June 2020, and pointed out that neither Simon Peter Njoroge Wainaina nor Miradi Ujenzi Consultancy Limited appeared among the registered contractors.
30. The witness testified that the Defendant had not travelled outside Nairobi for several years, denied that she entered into the Consultancy Contract dated 20th January 2020 and maintained that the signature appearing on the agreement did not belong to her.
31. Parties thereafter filed written submissions together with authorities which I have carefully considered alongside the pleadings, oral evidence and documentary exhibits. In my view, the following issues arise for determination:
1. Whether the Plaintiff proved that the Consultancy Contract dated 20th January 2020 was executed by the Defendant and constituted a valid and enforceable contract between the parties.
2. Whether the Plaintiff proved the authenticity, validity and reliability of the documents relied upon in support of the claim.
3. Whether the Plaintiff proved that it possessed the statutory registration and professional capacity necessary to undertake the consultancy services contemplated under the Consultancy Contract dated 20th January 2020.
4. Whether the Plaintiff proved that it rendered the consultancy services alleged and thereby became entitled to the sum claimed in the Plaint.
5. What orders should issue.
32. The first issue for determination is whether the Plaintiff proved that the Consultancy Contract dated 20th January 2020 was executed by the Defendant and constituted a valid and enforceable contract between the parties.
33. The Plaintiff’s claim was founded principally upon the Consultancy Contract dated 20th January 2020 produced as P Exhibit 1. According to the Plaintiff, the agreement was executed between the parties in respect of consultancy services relating to groundwater extraction and atmospheric water harvesting projects.
34. The Plaintiff testified that after signing the agreement, the same was allegedly taken to the Defendant through one Musyoka who later returned it signed. The Plaintiff however admitted during cross-examination that he did not witness the Defendant sign the agreement and further admitted that he was unfamiliar with the Defendant’s signature.
35. On the basis of the foregoing, the Plaintiff submitted that there existed a valid and enforceable contract between the parties. Reliance was placed on Nyaoro v Kavila [2025] KEHC 4409 (KLR), where the Court discussed formation of contracts through conduct and objective intention of parties. The Plaintiff invoked that authority in support of the argument that a binding agreement may arise from the conduct of parties even in the absence of formal execution.
36. The Plaintiff further relied on RTS Flexible Systems Ltd v Molkerei Alois Muller GmbH & Co KG [2010] UKSC 14 where the United Kingdom Supreme Court stated that existence of a binding contract depends upon what the parties objectively communicated by words or conduct and not upon undisclosed subjective intentions. The authority was cited to support the proposition that the surrounding conduct and dealings between parties may establish contractual intention.
37. The Plaintiff additionally relied on Rose & Frank Co v JR Crompton & Bros Ltd [1925] AC 445 for the proposition that a contract only arises where parties intended to create legal relations. The Plaintiff relied on the decision to contend that the Consultancy Contract reflected such intention.
38. Reliance was also placed on Abdulkadir Shariff Abdirahim & Another v Awo Shariff Mohammed t/a A.S Mohammed Investments [2014] eKLR where the Court of Appeal held that there is no general legal requirement that all agreements be reduced into writing. The authority was invoked to support the argument that the Court ought to consider the conduct and surrounding circumstances of the transaction.
39. The Plaintiff further relied on Ali Abdi Mohamed v Kenya Shell & Company Limited [2017] eKLR for the proposition that contractual obligations may be inferred from conduct and surrounding circumstances even where formalities are disputed.
40. On the issue of the disputed signature and allegations of forgery, the Plaintiff relied on In re Estate of the Late Arvind Kanji Premji Patel Moza Abdillahi Mohamed [2024] KEHC 6888 (KLR) where the Court considered competing forensic evidence and observed that expert evidence is not automatically binding upon the Court but must be weighed together with all the surrounding circumstances and evidence on record. The Plaintiff relied on that authority to urge the Court not to accept the forensic report tendered by the Defendant uncritically.
41. The Plaintiff also relied on Thomas v Toyota East Africa Ltd [2025] KECA 471 (KLR), Pamba Ong’weno Amila v John Juma Kutolo [2015] KECA 867 (KLR) and Kanjina v Kanjina & 2 Others [2023] KECA 243 (KLR) on the standard of proof applicable to allegations of fraud. The Plaintiff invoked those authorities to argue that allegations of forgery and fraud attract a standard of proof higher than a mere balance of probabilities though not beyond reasonable doubt.
42. The Defendant on the other hand submitted that the agreement relied upon by the Plaintiff bore a forged signature and relied on the evidence of DW1, Immanuel Kenga Kanisa, together with the Forensic Document Examination Report dated 16th September 2025 produced as D Exhibit 1, in support of the contention that the questioned signature appearing on the Consultancy Contract dated 20th January 2020 did not originate from the Defendant.
43. The Defendant further relied on Josephine Mwikali Kikenye v Omar Abdalla Kombo & another KECA 512 (KLR) which cited with approval the decision in Gallie v Lee & Another [1969] 1 All ER 1062 to the effect that where a signature is forged, the resulting document becomes a nullity incapable of conferring legal rights or obligations upon the purported signatory. The Defendant relied on the authority to contend that the impugned agreement could not found any enforceable claim if execution was not proved.
44. The Court has carefully considered the evidence placed before it. Although the Plaintiff maintained that the Consultancy Contract was genuine, the Plaintiff expressly admitted that he neither witnessed the Defendant execute the agreement nor possessed familiarity with the Defendant’s signature.
45. Further, the alleged intermediary one Musyoka, who was said to have transmitted the agreement to and from the Defendant, was never called as a witness. The Plaintiff therefore failed to place before the Court direct evidence linking the Defendant to execution of the agreement.
46. The Court has further considered the forensic evidence tendered by DW1 together with the Forensic Document Examination Report dated 16th September 2025. The forensic examiner concluded that there existed no agreement between the questioned signature appearing on the Consultancy Contract dated 20th January 2020 and the specimen and known signatures attributed to the Defendant.
47. Although the Plaintiff criticised the forensic report on account of the document examined being a photocopy and the absence of specialised equipment such as a Video Spectral Comparator, no contrary expert evidence was tendered by the Plaintiff to rebut the conclusions reached by the forensic examiner.
48. I have also considered the Plaintiff’s reliance on In re Estate of the Late Arvind Kanji Premji Patel Moza Abdillahi Mohamed (supra). I agree with the principle stated therein that expert evidence is not automatically binding and must be weighed together with the totality of the evidence on record. In the present matter however, the forensic evidence is materially reinforced by the surrounding circumstances disclosed by the evidence. In particular, the Plaintiff admitted lack of familiarity with the Defendant’s signature, the alleged intermediary was not called as a witness and no independent evidence was produced demonstrating that the Defendant ever acknowledged, adopted or acted upon the alleged agreement.
49. The authorities relied upon by the Plaintiff on formation of contracts through conduct including Nyaoro v Kavila (supra), RTS Flexible Systems Ltd v Molkerei Alois Muller GmbH & Co KG (supra), Rose & Frank Co v JR Crompton & Bros Ltd (supra), Abdulkadir Shariff Abdirahim & Another v Awo Shariff Mohammed t/a A.S Mohammed Investments (supra) and Ali Abdi Mohamed v Kenya Shell & Company Limited (supra) correctly state the applicable principles on contractual formation and objective intention. However, those authorities presuppose existence of credible evidence demonstrating conduct attributable to the parties from which assent may objectively be inferred.
50. In the present matter, the foundational question is whether the Defendant executed, authorised or adopted the impugned agreement at all. In the absence of credible evidence linking the Defendant to the Consultancy Contract dated 20th January 2020, the authorities relied upon by the Plaintiff do not assist its case.
51. I have equally considered the authorities cited by the Plaintiff on the standard of proof in allegations of fraud namely Thomas v Toyota East Africa Ltd (supra), Pamba Ong’weno Amila v John Juma Kutolo (supra) and Kanjina v Kanjina & 2 Others (supra). I agree that allegations of fraud and forgery must be strictly proved to a standard higher than a balance of probabilities. Nevertheless, having evaluated the entire evidentiary record, I am satisfied that the Defendant discharged that burden through the unrebutted forensic evidence together with the surrounding circumstances casting doubt upon authenticity of the impugned agreement.
52. Consequently, I am not satisfied that the Plaintiff proved, on a balance of probabilities, that the Defendant executed the Consultancy Contract dated 20th January 2020.
53. A valid contract presupposes consensus ad idem, intention to create legal relations, certainty of terms, and lawful consideration. In the present matter, the Plaintiff failed to establish the foundational requirement that the Defendant entered into or assented to the alleged agreement.
54. In the absence of proof that the Defendant executed, adopted, or assented to the agreement, the Court further finds that no binding contractual relationship arose between the parties.
55. I therefore find that the Plaintiff failed to prove that the Consultancy Contract dated 20th January 2020 constituted a valid and enforceable contract between the parties.
56. The second issue for determination is whether the Plaintiff proved the authenticity, validity and reliability of the documents relied upon in support of the claim.
57. The Plaintiff relied principally on the feasibility study report and the interim payment certificates produced as exhibits during trial and submitted that documentary evidence must be evaluated together with the surrounding circumstances and oral testimony.
58. The Court has carefully considered the feasibility study report relied upon by the Plaintiff. Although the report contained technical discussion relating to groundwater extraction and atmospheric water harvesting proposals, the report neither disclosed its author nor bore any signature identifying the maker.
59. The Plaintiff admitted during cross-examination that he was not the author of the report and that he had engaged unnamed experts to generate the same.
60. The Court has further considered the interim payment certificates relied upon by the Plaintiff. The certificates bore the name and signature attributed to one Martin Wanjau as quantity surveyor.
61. The Defendant however produced correspondence from the Board of Registration of Architects and Quantity Surveyors Kenya indicating that Martin Wanjau did not appear in the Board’s register. With regard to the interim payment certificates and the correspondence from the Board of Registration of Architects and Quantity Surveyors Kenya, the Defendant relied on IL Mattarelo Limited v Michael Bell & another [2018] KEHC 3212 (KLR) and submitted that documentary material founded upon statutory non-compliance ought to be treated with caution by the Court. The authority was relied upon to support the proposition that documents generated in circumstances suggesting professional or statutory irregularity may lack evidentiary reliability.
62. I have considered the principle in the cited case. In the present matter, the evidentiary value of the interim payment certificates was substantially weakened by the uncontroverted correspondence indicating that the purported quantity surveyor whose name appeared on the certificates was not reflected in the Board’s register.
63. The Court has additionally considered the evidence relating to the bank account appearing on the Consultancy Contract dated 20th January 2020. The Defendant produced evidence from KCB Bank showing that the account reflected in the agreement only came into existence on 07th September 2022.
64. The Court finds that the inclusion of bank account details in a document allegedly executed on 20th January 2020, whereas the account itself was only opened more than two years later, raises serious and unexplained doubts regarding the integrity and reliability of the documentation relied upon by the Plaintiff.
65. The Court has further considered the cumulative effect of the unsigned feasibility study report, the absence of identifiable authorship, the lack of supporting raw data, the questioned interim payment certificates, and the unexplained discrepancy in the bank account particulars appearing in the Consultancy Contract dated 20th January 2020.
66. Having considered the totality of the evidence placed before the Court, I find that the Plaintiff failed to establish the evidentiary integrity and reliability of the documents relied upon in support of the claim.
67. The third issue for determination is whether the Plaintiff proved that it possessed the statutory registration and professional capacity necessary to undertake the consultancy services contemplated under the Consultancy Contract dated 20th January 2020.
68. The Defendant tendered documentary evidence from the Engineers Board of Kenya and the National Construction Authority confirming that neither the Plaintiff nor Miradi Ujenzi Consultancy Limited appeared in their registration records.
69. During cross-examination, the Plaintiff admitted that neither he nor the Plaintiff entity was registered with the Engineers Board of Kenya and further admitted absence of documentary proof of professional qualifications.
70. The consultancy services allegedly undertaken by the Plaintiff involved technical assessments relating to groundwater extraction and atmospheric water harvesting projects spread across several counties. Such assignments ordinarily require specialised technical expertise and regulatory compliance.
71. In view of the technical nature of the consultancy services allegedly undertaken, proof of statutory registration and professional qualification constituted an important component of the Plaintiff’s claim.
72. The absence of registration with the Engineers Board of Kenya together with the documentary evidence from the National Construction Authority materially undermined the Plaintiff’s assertion that it possessed lawful professional capacity to undertake the impugned assignment.
73. Consequently, I find that the Plaintiff failed to prove that it possessed the statutory registration and professional capacity necessary to undertake the services contemplated under the Consultancy Contract dated 20th January 2020.
74. The fourth issue for determination is whether the Plaintiff proved that it rendered the consultancy services alleged and thereby became entitled to the sum claimed in the Plaint.
75. The Plaintiff maintained that it undertook feasibility studies, technical assessments and consultancy services pursuant to the Consultancy Contract dated 20th January 2020.
76. The Plaintiff relied on Miller v Minister of Pensions [1947] 2 All ER 372 on the standard of proof in civil cases. The authority was relied upon for the proposition that proof on a balance of probabilities means that a Court must be satisfied that the occurrence of an event was more probable than not.
77. The Plaintiff also relied on Shah & Another v Shah & Others [2003] 1 EA 290, Kimatu Mbuvi t/a Kimatu Mbuvi & Bros v Augustine Munyao Kioko [2007] 1 EA 139, Timsales Limited v Wilson Libuywa [2008] eKLR and Stanley Maina Kagongo v Isaac Kibiru Kahuthia [2022] KEHC 1950 (KLR) in support of the contention that the evidence tendered sufficiently established performance of the consultancy assignment.
78. I have carefully considered the said authorities and the principles stated therein on proof in civil claims are not in dispute. The issue however is whether the evidence tendered by the Plaintiff satisfied that evidentiary threshold.
79. The Court has already made findings regarding the evidentiary shortcomings affecting the contractual documentation, feasibility study report and interim payment certificates relied upon by the Plaintiff.
80. Beyond the disputed documentation, the Plaintiff did not place before the Court independent evidence demonstrating actual execution of the consultancy assignment. No field reports, technical approvals, correspondence acknowledging receipt of consultancy services, invoices, progress reports or minutes relating to the alleged consultancy assignment were produced.
81. Further, although the Plaintiff testified that the consultancy assignment involved several experts and consultants, none of those persons testified before the Court.
82. The Court further notes that the alleged consultancy assignment concerned large-scale technical projects spread across multiple counties involving a substantial contractual sum of KES. 35,150,186. Yet the evidentiary record remained devoid of objective material demonstrating actual implementation, supervision or acknowledgment of the alleged consultancy work by the Defendant.
83. Having considered the totality of the evidence placed before the Court together with the authorities cited by the Plaintiff, I am not satisfied that the Plaintiff proved, on a balance of probabilities, that it rendered the consultancy services alleged in the Plaint.
84. Accordingly, I find that the Plaintiff failed to establish entitlement to the sum claimed in the Plaint.
85. On the issue of costs, Section 27 of the Civil Procedure Act grants the Court discretion to determine by whom and out of what property costs are to be paid, though ordinarily costs follow the event.
86. In the present matter, the Defendant successfully defended the claim and is therefore entitled to costs.
87. From the foregoing analysis, the following orders shall and are hereby issued:
1) The Plaintiff’s suit against the Defendant is hereby dismissed.
2) The garnishee order nisi issued in respect of Defendant’s account No. 1106692314 held by the garnishee at their Kenya Commercial Bank Sarit Centre Branch together with all consequential orders issued pursuant thereto are hereby vacated and discharged forthwith.
3) The Plaintiff shall bear the costs of the suit together with the costs of the garnishee proceedings.