REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL APPEAL NO 1 OF 2023
THE BOARD OF GOVERNORS
MATILI TECHNICAL TRAINING INSTITUTE………...1ST APPELLANT
THE PERMANENT SECRETARY,
MINISTRY OF HIGHER EDUCATION…………….…….2ND APPELLANT
THE ATTORNEY GENERAL…………………………....…3RD APPELLANT
VERSUS
RAMAGON CONSTRUCTION COMPANY LIMITED…..RESPONDENT
ETHIC & ANTI-CORRUPTION COMMISSION……….…….APPLICANT
RULING
A. BACKGROUND
1. The Respondent herein was the Plaintiff in the trial Court whereas the Appellants were the Defendants.
2. By a plaint dated 29th August 2020, the Respondent claimed that on or about the year 2011, the 2nd Appellant advertised a tender for the proposed erection and completion of twin workshop complex at Matili Technical Training Institute Tender No. MTTI/MoHEST/ESP/6/2010-2011/1 for a contract sum of Kshs 29,311,659.64/=. The respondent applied and was awarded the tender. It accepted the offer vide a letter dated 18th August 2011. The project at the 1st Appellant’s institution was being carried out in phases.
3. The 2nd Appellant advertised for another tender No. MMTI/2/2011-2012 phase 1 which comprised substructure works up to completion of the ground floor slab for a contract price of Kshs 6,502,512.24//=. The Respondent applied for the tender and was successful. The 1st Appellant further advertised for phase 2 of the tender which comprised reinforced steel works, walling and roofing and which was awarded to the Respondent. The parties signed agreements for the projects.
4. During the execution of the contract, the entire design of the project substantially and the contract amount for tender No. MTTI/MoHEST/ESP/6/2010-2011/1 was revised to Kshs 37,167,191.12/= and phase 2 revised to Kshs 15,328,149.52/=. The Respondent averred that it prepared and submitted to the project manager its final accounts for the projects undertaken at a total sum of Kshs 58,997,852.88/=. The Respondent claimed to have been paid Kshs 49,926,154.64/= only up to practical completion. The outstanding balance as at practical completion was Kshs 9,071,698.24/= remained unpaid. On 17th January 2014, the Respondent wrote a letter to the 1st Appellant demanding payment of the outstanding amounts plus interest as stipulated under clause 23.3 of the contract. The 1st Appellant responded and promised to pay the debt in the sum of Kshs 500,000= every term starting May 2014. The 1st Appellant did not honour its proposal on account of the board having a new chairman who had sought the documentation for the project. On 16th November 2016, the 1st Appellant wrote to the Respondent informing it that the full Board of Governors had resolved to pay the outstanding amounts but first payment of Kshs 1,000,000/= then payment of Kshs 600,000/= per term. The 1st Appellant did not honour the terms of its undertaking. The Respondent claimed that there had been a breach of contract and enumerated the particulars of loss and damages as follows:
a. Kshs 9,071,698.24/= being the outstanding amount at practical completion of the contracts.
b. Kshs 4,249,551,73/= being the interest calculated as per clause 23 of the contract since September, 2012 to December 2018.
c. Kshs 4,000,000/= being the interest paid towards repayment of the loan facility from First Community Bank Limited.
d. Loss due to paralyzed business operations resulting from the non-payment of the contractual sum.
e. Loss of prospective investments as a result of lack of trust with suppliers, financiers and other partners who remain unpaid despite offering services to the Respondent.
5. The Appellants in their defence and counterclaim dated 1st October 2020, denied the Respondent’s claim. The Appellants admitted that the Respondent was only awarded a contract for the sum of Kshs 29,311,659.64/=. According to the Appellants, the variation of contract sum from Kshs 29,311,659.64/= to Kshs 37,167,191.12/= was never approved by the 1st Appellant. If there was any variation, the same was illegal and contrary to the Public Procurement and Disposal Act. It was advanced that the Respondent was paid Kshs 57,285,804/= which was an overpayment as the Respondent misrepresented and misled the appellants that there was some amount owing with respect to the contractual sum.
6. The Appellants further counter claimed for a sum of Kshs. 27,974,144.82/= being the difference between the contractual amount and the overpaid amount or Kshs 4,790,463.82/= being the overpaid amount after the non-approved variation; general damages for breach of contract, interests and cost.
7. The Respondent responded filed a reply to defence and defence to counterclaim by which it denied the allegations of breach of contract made against it and maintained that it was the Appellants who were in breach of contract.
8. On 15thbJanuary 2024, the Appellant’s appeal was partially allowed as regards prayer (c) of the Respondent’s Plaint dated 27th August 2020.
B. APPLICATION
9. Vide a Notice Motion application dated 6th May 2025, the Applicant herein sought to be enjoined as an interested party in these proceedings; the judgement of this Court delivered on 15th January 2024 be set aside; stay be issued against transfer of ownership of motor vehicle registration number KDA 556P Suzuki Jimmy sold by the Respondent’s auctioneers pending determination of this application and this Court be pleased to take additional evidence orally and cross-examination of witnesses be allowed.
10. The application is supported by the affidavit of Elias Kipyego, an investigating officer with the Applicant. He deposed that, on 16th May 2024, EACC received a report that there were illegalities and irregularities in the award and execution of the contract for erection and competition of a twin workshop complex at Matili Technical Institute in the financial year 2010/2011 at the cost of Kshs. 29, 311,659/=. That investigations conducted by the applicant established that the 1st Appellant who was the successful bidder entered into a contact on 12th July 2011 with the 1st Appellant at a sum of Kshs. 29, 311,659/=, and thereafter varied the same to Kshs. 58,997,857/= to facilitate further expansion of the construction; that at the time of completion of the construction on 14th October 2012, and the handing over of the site on 16th July 2013, the 1st Appellant only owed the Respondent Kshs. 9, 071,000/= subject of the lower Court suit; that the applicant’s investigators obtained the bank statements the Respondent’s account No. 0150295076099 held at Equity Bank Ltd which received payments of Kshs. 9, 071,000/= between the year 2016 and 2017; that by the time the Respondent instituted that trial Court’s suit the amount Kshs. 9, 071,000/= was confirmed to have been paid thus making the Respondent’s claim fraudulent.
11. It is the applicant’s position that the 1st Appellant’s proclaimed moveable properties are at a risk of sale in execution of the judgement of this Court issued on 15th January 2024, if the stay is not issued.
12. In response to the Motion application, the Respondent vide its Director, Abdi Barre Abdi, swore a Replying Affidavit on 7th May 2025, wherein he averred that this Court became functus officio on 15th January 2024 when it delivered it’s judgment in the appeal between the Appellants and Respondents and that was the case with the subsequent ruling delivered on 29th November 2024. According to him, the discovered new evidence by the interested party is within the preserve of the Anti-Corruption Economics Crime Court and not this Court. He averred that this Court lacks the locus standi to entertain the application dated 6th May 2025, as the same is brought in bad faith and this Court was not approached with clean hands.
13. Vide Court directions, parties were ordered to canvass the instant application by way of written submissions. Both parties complied.
C. DETERMINATION
14. I have considered and appreciated the application, the affidavits in support of, and in opposition to the application, the detailed oral and written submissions made by the respective counsels, the authorities relied upon and the law. The issues that fall for determination are as follows:
i) Whether the applicant has made out a case for joinder as an interested party in this appeal.
ii) If the answer to i) above is in the affirmative, this court should set aside it’s judgment as delivered on 15th January 2024.
iii) Whether the Applicant has met the threshold to warrant the re-hearing of the appeal,
iv) Whether this court should allow the tendering of new evidence by the applicant.
v) Whether the applicant has made out a case for stay of execution of the judgment of this court and that of the trial court.
vi) Who should meet the costs of this application?
15. I start by making the observation that, the Respondent was only entitled to prayer (c) in its Plaint dated 27th August 2020, pursuant to the judgement delivered on 15th January 2024. The trial and the appeal having been concluded would lead me to conclude that the two Courts at their respective levels became functus officio to the matter at hand. In keeping with the principle of finality of litigation, the doctrine of functus officio envisages that matters adjudicated before a competent Court of law should not be re-opened. The only exception to revisiting a judgement is under the slip rule as envisaged under Section 99 of the Civil Procedure Act for purposes of correcting clerical or arithmetic mistakes. There is no room for a Court to correct its substantive decision. The doctrine bars merit-based decisional re-engagement with the case once a final judgment has been entered and a decree therefrom issued.
16. The limitation of application of the slip rule was enunciated in the case of Valla Bhdas Karsandas Ranica vs. Mansukhlala Jivraj & others (1965) EA, 700 thus:
“… a slip order will only be made where the Court is fully satisfied that it is giving effect to the intention of the Court at the time when judgment was given or in the case of a matter which was overlooked where it is satisfied beyond doubt as to the order which it would have made had the matter been brought to its attention.”
17. In the event that a party is dissatisfied with the decision of a trial Court, its remedy on the grievances of any issue can only be dealt with by escalation to the next appellate Court by dint of the provisions of Article 164 of the Constitution, unless otherwise the party chooses a review of the decision as opposed to an appeal. The instant matter before me, where we are being asked to re-hear the appeal, is unique in that, this Court exercised its appellate jurisdiction and that, by a judgement delivered on 15th January 2024, it upheld the decision of the trial Court save for prayer (c) of the Respondent’s Plaint dated 27th August 2020.
18. The Applicant was neither a party before the trial Court nor in the appeal in this Court. It ‘s current application is a post judgment one. It is noteworthy that the Applicant raises issues of fraud, procurement irregularities, and double claim by the Respondent. The Applicant argued that this is a matter of public importance as the same involved public funds. Section 13(2) (b) and (c) of the Ethics and Anti-Corruption Commission Act, gives the Applicant powers to “undertake preventive measures against unethical and corrupt practices and conduct investigations on its own initiative or on a complaint made by any person.” Clothed with this power, the Applicant embarked on its independent investigations after receiving the complaint on 16th May 2024. Further, the Applicant argued that pursuant to Article 79, 249 (2) (a) (b), 252 (1) (a) (d) of the Constitution, Sections 11 (1) (j) and 28 of the Ethics and Anti-Corruption Commission Act and Section 45 (1) (a) of the Anti-Corruption and Economic Crimes Act.
19. Presently there are no proceedings in the appeal that are pending before this court as the court already rendered itself on the appeal on 15th January 2024. This court is thus functus officio and it can not sit in it’s own appeal.
20. In any event the issue of how much money was paid to the respondents is a matter that was within the knowledge of the appellants all along and they cannot now use the applicant to try and fill the gaps of their case.
21. The Applicant has rightfully expounded on it’s mandate and nothing prevents it from approaching the Anti-Corruption Court to ventilate it’s case against the respondent.
22. On the balance I find that the applicant can not be enjoined in an appeal that has already been concluded. The other prayers by the applicant are therefore rendered moot. This application is thus devoid of merit and is dismissed.
23. Each party to bear it’s own cost.
Orders accordingly
Delivered, Signed and Dated at Bungoma this 27th day of February 2026.
Mwanaisha.S. Shariff
Judge
In the presence of:
Paul Juma holding brief for Mt Nyauma FOR APPELLANTS
Mr Mulama holding brief for Mr Abok FOR RESPONDENT
Mr Makori for the Intended Interested Party
Peter Machoni - Court Assistant
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL APPEAL NO 1 OF 2023
THE BOARD OF GOVERNORS
MATILI TECHNICAL TRAINING INSTITUTE………...1ST APPELLANT
THE PERMANENT SECRETARY,
MINISTRY OF HIGHER EDUCATION…………….…….2ND APPELLANT
THE ATTORNEY GENERAL…………………………....…3RD APPELLANT
VERSUS
RAMAGON CONSTRUCTION COMPANY LIMITED…..RESPONDENT
ETHIC & ANTI-CORRUPTION COMMISSION……….…….APPLICANT
RULING
A. BACKGROUND
1. The Respondent herein was the Plaintiff in the trial Court whereas the Appellants were the Defendants.
2. By a plaint dated 29th August 2020, the Respondent claimed that on or about the year 2011, the 2nd Appellant advertised a tender for the proposed erection and completion of twin workshop complex at Matili Technical Training Institute Tender No. MTTI/MoHEST/ESP/6/2010-2011/1 for a contract sum of Kshs 29,311,659.64/=. The respondent applied and was awarded the tender. It accepted the offer vide a letter dated 18th August 2011. The project at the 1st Appellant’s institution was being carried out in phases.
3. The 2nd Appellant advertised for another tender No. MMTI/2/2011-2012 phase 1 which comprised substructure works up to completion of the ground floor slab for a contract price of Kshs 6,502,512.24//=. The Respondent applied for the tender and was successful. The 1st Appellant further advertised for phase 2 of the tender which comprised reinforced steel works, walling and roofing and which was awarded to the Respondent. The parties signed agreements for the projects.
4. During the execution of the contract, the entire design of the project substantially and the contract amount for tender No. MTTI/MoHEST/ESP/6/2010-2011/1 was revised to Kshs 37,167,191.12/= and phase 2 revised to Kshs 15,328,149.52/=. The Respondent averred that it prepared and submitted to the project manager its final accounts for the projects undertaken at a total sum of Kshs 58,997,852.88/=. The Respondent claimed to have been paid Kshs 49,926,154.64/= only up to practical completion. The outstanding balance as at practical completion was Kshs 9,071,698.24/= remained unpaid. On 17th January 2014, the Respondent wrote a letter to the 1st Appellant demanding payment of the outstanding amounts plus interest as stipulated under clause 23.3 of the contract. The 1st Appellant responded and promised to pay the debt in the sum of Kshs 500,000= every term starting May 2014. The 1st Appellant did not honour its proposal on account of the board having a new chairman who had sought the documentation for the project. On 16th November 2016, the 1st Appellant wrote to the Respondent informing it that the full Board of Governors had resolved to pay the outstanding amounts but first payment of Kshs 1,000,000/= then payment of Kshs 600,000/= per term. The 1st Appellant did not honour the terms of its undertaking. The Respondent claimed that there had been a breach of contract and enumerated the particulars of loss and damages as follows:
a. Kshs 9,071,698.24/= being the outstanding amount at practical completion of the contracts.
b. Kshs 4,249,551,73/= being the interest calculated as per clause 23 of the contract since September, 2012 to December 2018.
c. Kshs 4,000,000/= being the interest paid towards repayment of the loan facility from First Community Bank Limited.
d. Loss due to paralyzed business operations resulting from the non-payment of the contractual sum.
e. Loss of prospective investments as a result of lack of trust with suppliers, financiers and other partners who remain unpaid despite offering services to the Respondent.
5. The Appellants in their defence and counterclaim dated 1st October 2020, denied the Respondent’s claim. The Appellants admitted that the Respondent was only awarded a contract for the sum of Kshs 29,311,659.64/=. According to the Appellants, the variation of contract sum from Kshs 29,311,659.64/= to Kshs 37,167,191.12/= was never approved by the 1st Appellant. If there was any variation, the same was illegal and contrary to the Public Procurement and Disposal Act. It was advanced that the Respondent was paid Kshs 57,285,804/= which was an overpayment as the Respondent misrepresented and misled the appellants that there was some amount owing with respect to the contractual sum.
6. The Appellants further counter claimed for a sum of Kshs. 27,974,144.82/= being the difference between the contractual amount and the overpaid amount or Kshs 4,790,463.82/= being the overpaid amount after the non-approved variation; general damages for breach of contract, interests and cost.
7. The Respondent responded filed a reply to defence and defence to counterclaim by which it denied the allegations of breach of contract made against it and maintained that it was the Appellants who were in breach of contract.
8. On 15thbJanuary 2024, the Appellant’s appeal was partially allowed as regards prayer (c) of the Respondent’s Plaint dated 27th August 2020.
B. APPLICATION
9. Vide a Notice Motion application dated 6th May 2025, the Applicant herein sought to be enjoined as an interested party in these proceedings; the judgement of this Court delivered on 15th January 2024 be set aside; stay be issued against transfer of ownership of motor vehicle registration number KDA 556P Suzuki Jimmy sold by the Respondent’s auctioneers pending determination of this application and this Court be pleased to take additional evidence orally and cross-examination of witnesses be allowed.
10. The application is supported by the affidavit of Elias Kipyego, an investigating officer with the Applicant. He deposed that, on 16th May 2024, EACC received a report that there were illegalities and irregularities in the award and execution of the contract for erection and competition of a twin workshop complex at Matili Technical Institute in the financial year 2010/2011 at the cost of Kshs. 29, 311,659/=. That investigations conducted by the applicant established that the 1st Appellant who was the successful bidder entered into a contact on 12th July 2011 with the 1st Appellant at a sum of Kshs. 29, 311,659/=, and thereafter varied the same to Kshs. 58,997,857/= to facilitate further expansion of the construction; that at the time of completion of the construction on 14th October 2012, and the handing over of the site on 16th July 2013, the 1st Appellant only owed the Respondent Kshs. 9, 071,000/= subject of the lower Court suit; that the applicant’s investigators obtained the bank statements the Respondent’s account No. 0150295076099 held at Equity Bank Ltd which received payments of Kshs. 9, 071,000/= between the year 2016 and 2017; that by the time the Respondent instituted that trial Court’s suit the amount Kshs. 9, 071,000/= was confirmed to have been paid thus making the Respondent’s claim fraudulent.
11. It is the applicant’s position that the 1st Appellant’s proclaimed moveable properties are at a risk of sale in execution of the judgement of this Court issued on 15th January 2024, if the stay is not issued.
12. In response to the Motion application, the Respondent vide its Director, Abdi Barre Abdi, swore a Replying Affidavit on 7th May 2025, wherein he averred that this Court became functus officio on 15th January 2024 when it delivered it’s judgment in the appeal between the Appellants and Respondents and that was the case with the subsequent ruling delivered on 29th November 2024. According to him, the discovered new evidence by the interested party is within the preserve of the Anti-Corruption Economics Crime Court and not this Court. He averred that this Court lacks the locus standi to entertain the application dated 6th May 2025, as the same is brought in bad faith and this Court was not approached with clean hands.
13. Vide Court directions, parties were ordered to canvass the instant application by way of written submissions. Both parties complied.
C. DETERMINATION
14. I have considered and appreciated the application, the affidavits in support of, and in opposition to the application, the detailed oral and written submissions made by the respective counsels, the authorities relied upon and the law. The issues that fall for determination are as follows:
i) Whether the applicant has made out a case for joinder as an interested party in this appeal.
ii) If the answer to i) above is in the affirmative, this court should set aside it’s judgment as delivered on 15th January 2024.
iii) Whether the Applicant has met the threshold to warrant the re-hearing of the appeal,
iv) Whether this court should allow the tendering of new evidence by the applicant.
v) Whether the applicant has made out a case for stay of execution of the judgment of this court and that of the trial court.
vi) Who should meet the costs of this application?
15. I start by making the observation that, the Respondent was only entitled to prayer (c) in its Plaint dated 27th August 2020, pursuant to the judgement delivered on 15th January 2024. The trial and the appeal having been concluded would lead me to conclude that the two Courts at their respective levels became functus officio to the matter at hand. In keeping with the principle of finality of litigation, the doctrine of functus officio envisages that matters adjudicated before a competent Court of law should not be re-opened. The only exception to revisiting a judgement is under the slip rule as envisaged under Section 99 of the Civil Procedure Act for purposes of correcting clerical or arithmetic mistakes. There is no room for a Court to correct its substantive decision. The doctrine bars merit-based decisional re-engagement with the case once a final judgment has been entered and a decree therefrom issued.
16. The limitation of application of the slip rule was enunciated in the case of Valla Bhdas Karsandas Ranica vs. Mansukhlala Jivraj & others (1965) EA, 700 thus:
“… a slip order will only be made where the Court is fully satisfied that it is giving effect to the intention of the Court at the time when judgment was given or in the case of a matter which was overlooked where it is satisfied beyond doubt as to the order which it would have made had the matter been brought to its attention.”
17. In the event that a party is dissatisfied with the decision of a trial Court, its remedy on the grievances of any issue can only be dealt with by escalation to the next appellate Court by dint of the provisions of Article 164 of the Constitution, unless otherwise the party chooses a review of the decision as opposed to an appeal. The instant matter before me, where we are being asked to re-hear the appeal, is unique in that, this Court exercised its appellate jurisdiction and that, by a judgement delivered on 15th January 2024, it upheld the decision of the trial Court save for prayer (c) of the Respondent’s Plaint dated 27th August 2020.
18. The Applicant was neither a party before the trial Court nor in the appeal in this Court. It ‘s current application is a post judgment one. It is noteworthy that the Applicant raises issues of fraud, procurement irregularities, and double claim by the Respondent. The Applicant argued that this is a matter of public importance as the same involved public funds. Section 13(2) (b) and (c) of the Ethics and Anti-Corruption Commission Act, gives the Applicant powers to “undertake preventive measures against unethical and corrupt practices and conduct investigations on its own initiative or on a complaint made by any person.” Clothed with this power, the Applicant embarked on its independent investigations after receiving the complaint on 16th May 2024. Further, the Applicant argued that pursuant to Article 79, 249 (2) (a) (b), 252 (1) (a) (d) of the Constitution, Sections 11 (1) (j) and 28 of the Ethics and Anti-Corruption Commission Act and Section 45 (1) (a) of the Anti-Corruption and Economic Crimes Act.
19. Presently there are no proceedings in the appeal that are pending before this court as the court already rendered itself on the appeal on 15th January 2024. This court is thus functus officio and it can not sit in it’s own appeal.
20. In any event the issue of how much money was paid to the respondents is a matter that was within the knowledge of the appellants all along and they cannot now use the applicant to try and fill the gaps of their case.
21. The Applicant has rightfully expounded on it’s mandate and nothing prevents it from approaching the Anti-Corruption Court to ventilate it’s case against the respondent.
22. On the balance I find that the applicant can not be enjoined in an appeal that has already been concluded. The other prayers by the applicant are therefore rendered moot. This application is thus devoid of merit and is dismissed.
23. Each party to bear it’s own cost.
Orders accordingly
Delivered, Signed and Dated at Bungoma this 27th day of February 2026.
Mwanaisha.S. Shariff
Judge
In the presence of:
Paul Juma holding brief for Mt Nyauma FOR APPELLANTS
Mr Mulama holding brief for Mr Abok FOR RESPONDENT
Mr Makori for the Intended Interested Party
Peter Machoni - Court Assistant