(Being an appeal from the judgment of Hon. J.P Mkala (RM) in Siaya Small Claims Court Case No. SCCMM E209 of 2025 dated 8/8/2025)
1. The appeal arises from the judgment of Hon. J. P Mkala (RM) in Siaya Small Claims Court Case No. E209 of 2025 wherein he entered judgment for the Respondent as against the Appellant in the sum of Kshs845,378/= plus assessed costs of Kshs 40,000/=.
2. The Appellant was aggrieved by the said judgment and who lodged its Memorandum of Appeal dated 3/9/2025 wherein it raised the following grounds of appeal namely:
1) That the trial magistrate erred both in law and fact in awarding a claim whereas there was no valid suit before the court.
2) That the trial magistrate erred in law and fact in failing to find and hold that the Respondents’ claim as against the Appellant was statute-barred.
3) That the trial magistrate erred both in law and fact by awarding judgment in favour of the Respondent in the sum of Kshs.845,378/= yet there are no deliveries and or evidence in support of such an award.
4) That the trial magistrate erred both in law and fact in failing to find and hold that the contract between the Appellant and the Respondent, if any, was marred by serious flaws, irregularities, improprieties and illegalities and thus awarding the claim of Kshs.845,378/= to the Respondent was tantamount to not only awarding an illegality but also sanitizing and laundering the fraudulent tender.
5) That the learned trial magistrate erred in both law and fact by failing to consider the pleadings, evidence and written submissions of the Appellant, thus arriving at the erroneous judgment.
The Appellant therefore prayed that the impugned judgment dated 8/8/2025 be set aside, the appeal be allowed, and that it be granted costs of the appeal and of the lower court.
3. This being the first appellate court, its duty is well spelt out, namely to re-evaluate the evidence tendered before the trial court and subject it to an independent analysis and come up with its own conclusion as to whether or not to uphold the decision of the trial court. This court will also have to take into account the fact that it did not hear or see the witnesses testify and hence provide due allowance for the same. See Selle vs. Associated Motor Boat Co. Ltd [1968] EA 123.
4. The record of the trial court indicates that the Respondent filed its claim for Kshs845,378/= being the balance of monies due and owing from the Appellant for goods supplied between the period 01/01/2016 and 25/5/2023. The Respondent further pleaded that the agreement was that the Appellant would make payments within 30 days upon receipt of invoice. It was further pleaded that the Appellant despite being supplied with goods made small payments here and there and eventually refused and/or neglected to pay forcing the filing of the claim.
5. The Appellant denied the claim and further contended that if a contract existed, then the same was marred by irregularities and contraventions of the law from which the Respondent could not benefit, and further that the claim was statute-barred and thus the court lacked jurisdiction to hear and determine the matter.
6. The hearing commenced on 4/8/2025.
7. Kelvin Amollo (CW1) testified that he works as an accountant and proceeded to adopt the statement of claim. He also produced several exhibits inter alia; demand letter, copy of cheque dated 27/4/2023; invoice dated 25/1/2019, invoice dated 15/2/2019, invoice dated 28/5/2019, invoice and delivery note No. 37344 dated 25/6/2019, invoice and delivery note No. 37573 dated 3/7/2019; invoice No. 37355 dated 3/7/2019; invoice 39227 dated 11/9/2019; LPO dated 24/6/2018; bank payment slip posted on 9/1/2016; bank paying slip 29/7/2016; bank slip posted on 16/9/2016; cheque No. 003639; cheque dated 1/12/2016; LPO dated 25/5/2019; demand letter dated 16/6/2021; demand letter 6/5/2025; cheque leaf dated 27/4/2023.
On cross examination, he stated inter alia; that he did not supply the employment letter with the Respondent’s company nor any document showing that he was an accountant; that the statement of account is not signed; that invoice No. 32598 was for supply of 100 bags of 50kgs bakers flour that was not supported by any LPO; that the LPO dated 24/6/2016 lapsed in 2024; that the LPO was signed by the bursar; that they did not bid for the supply of flour; that he had worked for Alicia Bakers for seven (7) years; that they did not receive any certificate confirming that the goods were delivered; that the delivery note was stamped and signed by one Julyn; that LPO dated 20/4/2019 was signed by the bursar; that he has not submitted any tender document; that the school issued them with an LPO; that there is no agreement between the school and Alicia Bakers; that the amount is in respect of bread and flour; that he is aware of meetings between the school and other creditors; that the claimant is a company; that he does not have a resolution authorizing him to appear as a witness on behalf of the company; that there is no resolution to institute this claim; that he has never visited Kaimosi Girls and that he does not know the storekeeper.
On re-examination, he stated inter alia; that it is not part of his obligation to know the storekeeper; that once it is signed by the school, it is enough for the delivery notes; that all delivery notes are stamped; that LPO are from Kaimosi; that they supplied goods from 2016 to 2019; that payments were not made promptly; that payments were not made in full and that the last payment was made on 25/5/2023; that the statement is from Alicia Bakers; that there is no dispute to his qualification as an accountant; that he is not in a position to know who is to receive goods once delivered.
That marked the close of the Respondent’s case.
8. Fred Akhumwanya Shunguli (DW1) testified that he is a school foreman. That he recorded and filed his witness statement dated 25/7/2025 which he adopted as his evidence and produces it as exhibit 1-8. Further, he stated that Timothy Anyika has been the store man from 2008 to date and that the school has had one store- man since 2016. That the supplier must have LPO tender documents to show that he has succeeded. That he has never seen an invoice dated 3/7/2019 and which is unsigned. That invoice dated 25/6/2019 is signed by Rael Murila who is a secretary at the school. That storekeeper is supposed to sign the delivery note. That LPO worth Kshs540,000/= is not properly written. That it has not quoted tender reference. That the person who signed has not been stated. That LPO is supposed to be signed by the principal. That the goods were to be delivered in April 2019. That in April, schools were on recess. It is not signed by the bursar or the principal. That LPO dated 24/6/2018 has no tender reference and that the chief accounting officer has not signed. That the amount is not high and cannot have been consumed within a short period. That the supplier picks LPO from the school and sign delivery book.
On cross examination, he stated that he has been a foreman for the last 17 years. That he is a member of transportation and acceptance committee. That he has not brought evidence to show that he is a foreman. That LPO dated 24/6/2019 is signed by unauthorized person and it is in their letter head. That the stamp can be made by anybody. That the stamp belongs to the school and that he knows what an LPO is. That it is a public school and should go as per the procurement documents. That a request was made for supply of goods. That he could not tell whether payment was made. LPO for 26/3/2019 belongs to the school and the stamp belongs to the bursar. That a request was made and that he cannot tell whether payment was made. That he has supplied tender notice of 2019. That he cannot show the list of prequalified suppliers as he does not have the list. That there was no advert for delivery of baking flour and bread. That tender 42 indicates school to source directly or to be advertised. That in 2019 there was room for direct sourcing. That there are no pre-qualified suppliers and that the school can issue a supplier an LPO. That the cheque was issued by the school. That it must be made for something, and that I do not know the payment it was meant for. That according to him, Kaimosi is a public school which must follow the public procurement. That the payment was not illegal. That he cannot tell whether the school can make illegal payments. That payments were made to a supplier. That invoice bears school stamp and that they did not respond to the demand letters.
On re-examination, he stated that they should have invoices to show delivery. That the school should issue a certificate for delivery. That delivery was not done.
9. Bright Makay Ndang’ale (DW2) adopted his statement dated 23/1/2025 as his evidence in chief. That he has worked from 2012 to date as a bursar. That the store man was Timothy Anyika. That LPO dated 24/6/2016 is unknown to him and that the stamp on the LPO dated 25/2/2019 is not his and further that the signature is not his. That for the period 2016- 2019, Julyn was a Librarian on contract.
On cross examination, he stated that the LPO dated 25/3/2019 has the name of the school. That the stamp is foreign to him. That he is not aware that the witness has stated that the stamp belongs to the school. That the invoice is stamped on 25/3/2019 but which he is not familiar with. That a cheque was issued by the school and that the same was for paying for bread. That the cheque was for goods supplied. That sometimes there is delay in paying. That he does not know what the school was paying for. That they were served with demand letters.
10. Both parties duly closed their respective cases and exchanged submissions leading to the impugned judgment.
11. The appeal was canvassed by way of written submissions.
12. Appellants submissions are dated 6 th November 2025. Learned counsel for the Appellant submitted that the Respondent pleaded under nature of the claim to the effect that being a balance of the price on account of goods supplied to the Appellant between the period 1/1/2016 – 25/5/2023 and now owing and amounting to Ksh845,378/=. That the Appellant denied the claim and therefore put the Respondent to strictly prove thereof. That the Respondent called CW1who produced exhibits namely demand letter, copy of cheque dated 27/4/2023; invoice dated 25/1/2019, invoice dated 15/2/2019, invoice dated 28/5/2019, invoice and delivery note No. 37344 dated 25/6/2019, invoice and delivery note No. 37573 dated 3/7/2019; invoice No. 37355 dated 3/7/2019; invoice 39227 dated 11/9/2019; LPO dated 24/6/2018; bank payment slip posted on 9/1/2016; bank paying slip 29/7/2016; bank slip posted on 16/9/2016; cheque No. 003639; cheque dated 1/12/2016; LPO dated 25/5/2019; demand letter dated 16/6/2021; demand letter 6/5/2025; cheque leaf dated 27/4/2023.
The counsel placed reliance in the case of E.P Communications Limited v East Africa Courier Services Limited [2019] eKLR where the Superior Court stated that a delivery note is a proof of delivery of goods, that invoices alone do not prove or receipt of goods and that in the absence of a delivery note or other evidence of receipt of goods, it becomes doubtful whether the goods were actually delivered. Further, the Superior Court stated that, courts of law act on hard evidence not sympathy or speculation.
Further, it was submitted that the Respondent’s invoices produced as exhibit 4,5,6,9, 10,11 and LPOs’ produced as exhibit 12 and 18 alone do not prove delivery of receipts of the goods by the Appellant. The invoices produced as exhibits 4,5,6,9,10 and 11 are not supported by any duly stamped and signed delivery note. In absence of delivery note or evidence of receipt of the gods, the Honourable court is called upon to find that the goods mentioned in invoices produced as exhibits 4,5,6,7,9, 10 and 11 and LPOs’ produced as exhibit 12 and 1j8 were never delivered and or supplied to the Appellant. That the Respondent only produced two delivery notes dated 25/6/2019 and 03/07/2019 as exhibit 7(b) and 8(b) as shown in the record of appeal. That that the delivery note dated 25/6/2019 bears the stamp of Friends school Kaimosi Girls and is illegally signed by one Rael Murila. That the delivery note dated 3/7/2019 only bears the stamp of Friends School Kaimosi Girls and does not bear the signature of approval by an agent and or employee of the Appellant herein and that without the signature of approval, the goods mentioned in the delivery note dated 25/6/2019 were never supplied. That CW1 produced a copy of the Respondent statement of account as exhibit No. 1. Counsel further relied on Section 37 of the Evidence Act which provides that:
“Entries in books of account regularly kept in the course of business are admissible whenever they refer to a matter into which the court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability.”
Further, reliance was placed in the case of Five Continents Ltd v Mpata Investments Ltd [2003] eKLR where it was held that:
“The plaintiff mainly relied on the accounts analyzing to show the defendant’s indebtedness. That accounts analysis was apparently prepared by the Plaintiff for use in this suit. It is not itself a book of account regularly kept in the course of business. Even if it were, such a statement would not alone be sufficient evidence to charge the defendant with liability (see Section 37 of the Evidence Act). It follows that the accounts analysis on which the learned judge relied has no evidential value.”
Flowing from the above, it was submitted that the Respondent failed to render signed and verified evidence to demonstrate the debt. That the Respondent’s unstamped and unsigned statement of account lacks legal binding force without proper authentication and that this Court should disregard it.
13. On the issue of whether the contract between the Appellant and Respondent was marred by serious flaws, irregularities, improprieties and illegalities making it unenforceable, it was submitted that the Appellant is a Public entity and that Article 227 (1) of the Constitution obligates state organs and public entities to procure goods and services in accordance with a system that is fair, equitable, transparent, competitive and cost effective. Further that the Public Procurement and Assets Disposal Act of 2015 provides the framework within which policies relating to procurement are to be implemented. That counsel relied on Section 5(1) of the procurement and Assets Disposal Act 2015 as regards to whether an oral or implied contract can be implied between the Appellant and the Respondent which states as follows:
“ 5 Conflicts with other Acts.
(1) This Act shall prevail in case of any inconsistency between this Act and any other legislation or government notices or circulars, in matters relating to procurement and Asset Disposal except in cases where procurement of professional services is governed by an Act of Parliament applicable for such services…”
That the alleged supply and the alleged part payment if any cannot be related to this case so as to find that there was an implied contract between parties.
On the issue of whether the Respondent had a similar and equal responsibility to ensure that the tender and or procurement herein followed the law, it was submitted that the Respondent had a similar and equal responsibility to ensure that the procurement followed the law as outlined in Section 72 of the Public Procurement and Assets Disposal Act of 2015 that responsibility for complying with Act, contractors, suppliers and consultants shall comply with the provisions of this Act and Regulations. Further, it was stated that the ignorance/omission by the Respondent to ensure that there was compliance with the law before supplying bread and flour if any is not excusable. Reliance was further placed in the case of Royal Media Services V Independent Electoral & Boundaries Commission & 3 Others [2019] eKLR where it was held that:
“45. It is the duty of the Contractor as it is of the procuring entity to observe the provisions of statue and the Regulations thereunder. Section 27 imposes as unequivocal responsibility on any contractor, supplier or consultant intending to supply goods or services to a public entity to comply with all the provisions of the Act and the Regulations. This duty, in my view, extends to the contractor making due enquiries as to whether the procuring entity has complied with its side of the law and declining to enter into contract which is procured in apparent disregard of the law. For that reason, a contractor or supplier cannot find refuge in the argument that compliance was an internal matter of the public entity when he/she has not done enough to enquire about compliance or himself/herself guilty of infringement.”
14. As regards the issue of whether the procurement and supply of bread and flour by the Respondent if any complied with the statutory provisons of the Constitution and the Public Procurement and Assets Disposal Act of 2015, it was submitted that vitiating factors in contract are those factors the existence of which will cripple or invalidate the contract. They include mistake, duress, misrepresentation, undue influence, illegality, unconscionable contracts, fraud, insanity, a party being a minor and void agreements. That these factors may infect either at its formation or at the performance. That CW1 did not confirm that he did supply any tender documents in support of the Respondent’s claim as against the Appellant. That the Appellant did produce tender notice for the year 2019 and dated 19/10/2018 and page 41, under tender notice No. 20 FSK/TENDER/2019/42BAKERY ITEMS/MAINTENANCE, that the Appellant invited eligible suppliers to make bid in relation to the tender. That it was a mandatory condition for eligible suppliers to pay Kshs1000/= non refundable tender fee and thereafter tender their bid on or before 26/11/2018. That the Respondent neither paid the non-refundable tender fee nor made any application in relation to the above tender advert. That the Appellant produced a copy of the minutes of the Adhoc Tender Committee held on 30/1/2019 as exhibit 6 in relation to tender notice number 20 FSK/TENDER/2019/42 BAKERY ITEMS/MAINENANCE and the adhoc tender committee recommended that the school to source directily or re-advertise for the same. That Public Procurement and Assets Disposal Act of 2015 provided it meets the parameters set out in Section 103 and 104 of the Act which provides that:
“ 103. When direct procurement may be used
1) A procuring entity may use direct procurement as allowed under sub-section (2) as long as the purpose is no to avoid competition.
2) A procuring entity may use direct procurement if any of the following are satisfied –
a. The goods, works or services are available only from the particular supplier or contractor, or a particular supplier or contractor has exclusive rights in respect of the goods, works or services, and no reasonable alternative or substitute exists;
b. Due to war, invasion, disorder, natural disaster or ther is an urgent need for the goods, work or services, and engaging in tendering proceedings or other method of procurement would therefore be impractical, provided that the circumstances giving rise to the urgency were neither foreseeable by procuring entity nor the result of dilatory conduct of its part
c. Owing to a catastrophic event, there is an urgent need for the goods, works or services
(d) the procuring entity, having procured goods, equipment, technology or services from a supplier or contractor, determines that additional supplies shall be procured from that supplier or contractor for reasons of standardization or because of the need for compatibility with existing goods, equipment, technology or services, taking into account the effectiveness of the original procurement in meeting the needs of the procuring entity, the limited size of the proposed procurement in relation to the original procurement, the reasonableness of the price and the unsuitability of alternatives to the goods or services in question;
(e) for the acquiring of goods, works or services provided by a public entity provided that the acquisition price is fair and reasonable and compares well with known prices of goods, works or services in the circumstances.
(3) A public officer who contravenes the provisions of subsection (2) commits and offence.
104. Procedure for direct procurement
An accounting officer of a procuring entity shall adhere to the following procedures with respect to direct procurement—
(a) issue a tender document which shall be the basis of tender preparation by tenderer and subsequent negotiations.
(b) appoint an ad hoc evaluation committee pursuant to section 46 to negotiate with a person for the supply of goods, works or non- consultancy services being provided;
(c) ensure appropriate approvals under this Act have been granted;
(d) ensure the resulting contract is in writing and signed by both parties.”
15. It was further submitted that in regards to the provisions of Section 103 (1) and (2) of the Public Procurement Act above, it is not in dispute that the same fails to meet the threshold set under Article 227 (1) of the Constitution which obligates state organs and public entities to procure goods and services in accordance with a system that is fair, equitable, transparent, competitive and cost effective. That on the aspect of competition, the Respondent failed to tender evidence on how they were awarded the tender. In the absence of re – advertisement of the tender, it is our submission that the Respondent chose a procurement mode that was not fair, competitive, equitable and transparent. It was done in Secrecy to the exclusion of other eligible supplier’s contrary to the Clear provisions of Statute. That the mode of procurement chosen herein does not comply with the clear provisions of Section 103 (2) of the Public Procurement Act. For Instance, there no evidence on record that the Respondent has exclusive rights in respect of supply of bread and flour. There is equally no evidence that due to war, invasion, disorder, natural disaster or there was an urgent need for bread and flour and engaging in tendering proceedings or any other method of procurement would therefore be impractical. Similarly, there is no evidence that owing to a catastrophic event, there was an urgent need for supply of bread and flour making it impractical to use other methods of procurement because of the time involved in using those methods. There is equally no evidence that the Respondent previously supplied bread and flour for reasons of standardization or there was need for compatibility with existing goods. Lastly, there is no evidence that the acquisition price by the Respondent is fair and reasonable and compares well with known prices of bread and flour.
16. As regards the aspect of Procedure as provided for under Section 104 of the Public Procurement Act, it was submitted that the above – mentioned procedure provides to the effect that in direct procurement an accounting officer of a procuring entity shall adhere issue a tender document which shall be the basis of tender preparation by tenderer and subsequent negotiations. That in the above context is interpreted as imposing a mandatory and compulsory duty implying that the procedure and duty imposed pursuant to the provisions of Section 104 of the Public Procurement Act is mandatory and compulsory. That in the above provision, it is only the Accounting Officer of the Appellant herein who is obligated to give tender documents. Further, upon issuance of the tender documents by the Accounting Officer, the said documents shall form a basis for negotiations. That CW1 did produce the following exhibits namely; a statement of account, demand letters dated 16/06/2021 and 06/05/2025, copies of cheques dated 27/04/2023, 25/01/2019, 15/02/2019, 28/05/2019, 03/07/2019, 11/09/2019, 03/10/2019, bank slips dated 09/01/2016, 29/07/2016, 16/09/2016, cheque number 003639, cheque dated 01/12/2016. My Lord the above-mentioned exhibits were never issued by the Accounting Officer of the Appellant herein and the same cannot form basis for negotiation in direct procurement.
17. Again, under this condition, the Appellant produced a copy of an LPO dated 24/06/2018 and 25/03/2019. A perusal of the LPO dated 24/06/2018 and 25/03/2019 at pages 101 and 106 of the Record of Appeal respectively, it is not in dispute that both are neither signed nor stamped by the Accounting Officer of the Appellant herein. That by signing and stamping, the Accounting Officer would simply be approving the documents but in this case the documents were never issued, signed nor approved by the Accounting Officer. It was therefore submitted that the said LPO’s were never issued by the Accounting Officer of the Appellant and that the same cannot form basis for negotiation in direct procurement.
18. As regards whether the Accounting Officer did appoint an ad hoc evaluation committee pursuant to section 46 to negotiate with a person for the supply of goods, works or non- consultancy services being provided, it was contended that the Respondent failed to tender evidence of establishment of an ad hoc evaluation committee. That the Respondent also failed to supply minutes from which an inference would have been made that indeed negotiations were ever held pursuant to the provisions of Section 104 (b) of the Public Procurement Act.
19. As regards the issue of approval, reliance was placed on the provisions of Section 104 (c) of the Public Procurement Act, no appropriate approvals were granted since none were supplied by the Respondent. Lastly, pursuant to the provisions of Section 104 (d) of the Public Procurement Act, there is no evidence that the resulting contract was in writing and signed by both the Accounting Officer of the Appellant and the Respondent herein.
20. It was submitted that the Appellant established that the tender transaction herein was an execution of illegality. That the tender transaction is illegal, fraudulent and violated the clear provisions of the Constitution and the Public Procurement and Asset Disposal Act. That in order to qualify for payment the contract had to be legal and lawful. That allowing the Respondent to receive monies on the impugned contract will be tantamount to not only rewarding an illegality, but also sanitizing and laundering those fraudulent tenders.
21. Counsel further relied in the case of Nairobi High Court Anti – Corruption suit No. E026 of 2018; Ethics and Anti – Corruption Commission versus Joseph Muindi Tevulo, Benjamin Ruto Timitim and Robert Simiyu Wambulwa T/A Koyi Building Contractors by Justice Prof (Dr) Nixon Sifuna wherein the learned Judge held as follows at paragraph 40, 41, 42, 43 and 44: -
“40. The evidence so far on record in this suit has revealed serious flaws, irregularities, improprieties and illegalities in the manner the Defendants handled the subject tenders. It has gravely faulted not only the award of the said tenders but also the payments (overpayments) as well the entire tendering processes.
41. With extensive details, detailing the anomalies and outright violations of the procurement process and law. These infractions and fraud were aptly summed up by PW6 in his testimony. A testimony that notably clearly bore out his expertise in conducting such investigations. He in a blow-by-blow account left nothing to guess work; as he dissected and explained the entire scam with graphic details on every element and material particular of the scheme and fraud perpetrated by the Defendants in the subject tenders.
42. This covered the entire process from the bids to the tender award and to the payments. As already noted, the effect of the Defendants having filed Defence and subsequently failed or elected to call witnesses and adduce evidence in support of their Defence(s) and to controvert the Plaintiff's assertions, is that those assertions remain uncontroverted and if they meet the evidentiary threshold, they are to be believed and relied on by the Court in its determination of the suit.
43. Notably, the County had a budget for the said works, but which as a result of this fraud-ladden tender caused the County Government to pay more than was budgeted. I need to emphasize though, that the Defendants' sin was not only overshooting the budget. But also the irregularities, illegalities and fraud in the said tenders. The contracts were as illegal as the
44. This Court considers the subject transaction as an execution of illegality, rather than the rendering of a service for which payment should be made. To qualify for payment the contract had to be legal and lawful. Allowing the 3rd Defendant to retain the monies paid on those contracts, will be tantamount to not only rewarding an illegality, but also sanitizing and laundering those fraudulent tenders.
22. Further, in the case of Alphas Ngonda – Chairman & 3 others v Joseph Kitonga Kithuku t/a Muki Hardware & General Works [2020] eKLR Justice P.J.O Otieno held as follows at paragraph 25: -
“25. …I do find that the evidence led showed that Public procurement and asset disposal act was not followed in awarding the tender upon which the suit was grounded and that on that account it was not open to the court to enforce such an agreement by entry of judgment. This present the second compelling ground that the appeal be allowed and the judgment of the lower court set aside.”
23. Learned counsel further submitted that in the instant case, there is a greater public good in a Co
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1. The appeal arises from the judgment of Hon. J. P Mkala (RM) in Siaya Small Claims Court Case No. E209 of 2025 wherein he entered judgment for the Respondent as against the Appellant in the sum of Kshs845,378/= plus assessed costs of Kshs 40,000/=.
2. The Appellant was aggrieved by the said judgment and who lodged its Memorandum of Appeal dated 3/9/2025 wherein it raised the following grounds of appeal namely:
1) That the trial magistrate erred both in law and fact in awarding a claim whereas there was no valid suit before the court.
2) That the trial magistrate erred in law and fact in failing to find and hold that the Respondents’ claim as against the Appellant was statute-barred.
3) That the trial magistrate erred both in law and fact by awarding judgment in favour of the Respondent in the sum of Kshs.845,378/= yet there are no deliveries and or evidence in support of such an award.
4) That the trial magistrate erred both in law and fact in failing to find and hold that the contract between the Appellant and the Respondent, if any, was marred by serious flaws, irregularities, improprieties and illegalities and thus awarding the claim of Kshs.845,378/= to the Respondent was tantamount to not only awarding an illegality but also sanitizing and laundering the fraudulent tender.
5) That the learned trial magistrate erred in both law and fact by failing to consider the pleadings, evidence and written submissions of the Appellant, thus arriving at the erroneous judgment.
The Appellant therefore prayed that the impugned judgment dated 8/8/2025 be set aside, the appeal be allowed, and that it be granted costs of the appeal and of the lower court.
3. This being the first appellate court, its duty is well spelt out, namely to re-evaluate the evidence tendered before the trial court and subject it to an independent analysis and come up with its own conclusion as to whether or not to uphold the decision of the trial court. This court will also have to take into account the fact that it did not hear or see the witnesses testify and hence provide due allowance for the same. See Selle vs. Associated Motor Boat Co. Ltd [1968] EA 123.
4. The record of the trial court indicates that the Respondent filed its claim for Kshs845,378/= being the balance of monies due and owing from the Appellant for goods supplied between the period 01/01/2016 and 25/5/2023. The Respondent further pleaded that the agreement was that the Appellant would make payments within 30 days upon receipt of invoice. It was further pleaded that the Appellant despite being supplied with goods made small payments here and there and eventually refused and/or neglected to pay forcing the filing of the claim.
5. The Appellant denied the claim and further contended that if a contract existed, then the same was marred by irregularities and contraventions of the law from which the Respondent could not benefit, and further that the claim was statute-barred and thus the court lacked jurisdiction to hear and determine the matter.
6. The hearing commenced on 4/8/2025.
7. Kelvin Amollo (CW1) testified that he works as an accountant and proceeded to adopt the statement of claim. He also produced several exhibits inter alia; demand letter, copy of cheque dated 27/4/2023; invoice dated 25/1/2019, invoice dated 15/2/2019, invoice dated 28/5/2019, invoice and delivery note No. 37344 dated 25/6/2019, invoice and delivery note No. 37573 dated 3/7/2019; invoice No. 37355 dated 3/7/2019; invoice 39227 dated 11/9/2019; LPO dated 24/6/2018; bank payment slip posted on 9/1/2016; bank paying slip 29/7/2016; bank slip posted on 16/9/2016; cheque No. 003639; cheque dated 1/12/2016; LPO dated 25/5/2019; demand letter dated 16/6/2021; demand letter 6/5/2025; cheque leaf dated 27/4/2023.
On cross examination, he stated inter alia; that he did not supply the employment letter with the Respondent’s company nor any document showing that he was an accountant; that the statement of account is not signed; that invoice No. 32598 was for supply of 100 bags of 50kgs bakers flour that was not supported by any LPO; that the LPO dated 24/6/2016 lapsed in 2024; that the LPO was signed by the bursar; that they did not bid for the supply of flour; that he had worked for Alicia Bakers for seven (7) years; that they did not receive any certificate confirming that the goods were delivered; that the delivery note was stamped and signed by one Julyn; that LPO dated 20/4/2019 was signed by the bursar; that he has not submitted any tender document; that the school issued them with an LPO; that there is no agreement between the school and Alicia Bakers; that the amount is in respect of bread and flour; that he is aware of meetings between the school and other creditors; that the claimant is a company; that he does not have a resolution authorizing him to appear as a witness on behalf of the company; that there is no resolution to institute this claim; that he has never visited Kaimosi Girls and that he does not know the storekeeper.
On re-examination, he stated inter alia; that it is not part of his obligation to know the storekeeper; that once it is signed by the school, it is enough for the delivery notes; that all delivery notes are stamped; that LPO are from Kaimosi; that they supplied goods from 2016 to 2019; that payments were not made promptly; that payments were not made in full and that the last payment was made on 25/5/2023; that the statement is from Alicia Bakers; that there is no dispute to his qualification as an accountant; that he is not in a position to know who is to receive goods once delivered.
That marked the close of the Respondent’s case.
8. Fred Akhumwanya Shunguli (DW1) testified that he is a school foreman. That he recorded and filed his witness statement dated 25/7/2025 which he adopted as his evidence and produces it as exhibit 1-8. Further, he stated that Timothy Anyika has been the store man from 2008 to date and that the school has had one store- man since 2016. That the supplier must have LPO tender documents to show that he has succeeded. That he has never seen an invoice dated 3/7/2019 and which is unsigned. That invoice dated 25/6/2019 is signed by Rael Murila who is a secretary at the school. That storekeeper is supposed to sign the delivery note. That LPO worth Kshs540,000/= is not properly written. That it has not quoted tender reference. That the person who signed has not been stated. That LPO is supposed to be signed by the principal. That the goods were to be delivered in April 2019. That in April, schools were on recess. It is not signed by the bursar or the principal. That LPO dated 24/6/2018 has no tender reference and that the chief accounting officer has not signed. That the amount is not high and cannot have been consumed within a short period. That the supplier picks LPO from the school and sign delivery book.
On cross examination, he stated that he has been a foreman for the last 17 years. That he is a member of transportation and acceptance committee. That he has not brought evidence to show that he is a foreman. That LPO dated 24/6/2019 is signed by unauthorized person and it is in their letter head. That the stamp can be made by anybody. That the stamp belongs to the school and that he knows what an LPO is. That it is a public school and should go as per the procurement documents. That a request was made for supply of goods. That he could not tell whether payment was made. LPO for 26/3/2019 belongs to the school and the stamp belongs to the bursar. That a request was made and that he cannot tell whether payment was made. That he has supplied tender notice of 2019. That he cannot show the list of prequalified suppliers as he does not have the list. That there was no advert for delivery of baking flour and bread. That tender 42 indicates school to source directly or to be advertised. That in 2019 there was room for direct sourcing. That there are no pre-qualified suppliers and that the school can issue a supplier an LPO. That the cheque was issued by the school. That it must be made for something, and that I do not know the payment it was meant for. That according to him, Kaimosi is a public school which must follow the public procurement. That the payment was not illegal. That he cannot tell whether the school can make illegal payments. That payments were made to a supplier. That invoice bears school stamp and that they did not respond to the demand letters.
On re-examination, he stated that they should have invoices to show delivery. That the school should issue a certificate for delivery. That delivery was not done.
9. Bright Makay Ndang’ale (DW2) adopted his statement dated 23/1/2025 as his evidence in chief. That he has worked from 2012 to date as a bursar. That the store man was Timothy Anyika. That LPO dated 24/6/2016 is unknown to him and that the stamp on the LPO dated 25/2/2019 is not his and further that the signature is not his. That for the period 2016- 2019, Julyn was a Librarian on contract.
On cross examination, he stated that the LPO dated 25/3/2019 has the name of the school. That the stamp is foreign to him. That he is not aware that the witness has stated that the stamp belongs to the school. That the invoice is stamped on 25/3/2019 but which he is not familiar with. That a cheque was issued by the school and that the same was for paying for bread. That the cheque was for goods supplied. That sometimes there is delay in paying. That he does not know what the school was paying for. That they were served with demand letters.
10. Both parties duly closed their respective cases and exchanged submissions leading to the impugned judgment.
11. The appeal was canvassed by way of written submissions.
12. Appellants submissions are dated 6 th November 2025. Learned counsel for the Appellant submitted that the Respondent pleaded under nature of the claim to the effect that being a balance of the price on account of goods supplied to the Appellant between the period 1/1/2016 – 25/5/2023 and now owing and amounting to Ksh845,378/=. That the Appellant denied the claim and therefore put the Respondent to strictly prove thereof. That the Respondent called CW1who produced exhibits namely demand letter, copy of cheque dated 27/4/2023; invoice dated 25/1/2019, invoice dated 15/2/2019, invoice dated 28/5/2019, invoice and delivery note No. 37344 dated 25/6/2019, invoice and delivery note No. 37573 dated 3/7/2019; invoice No. 37355 dated 3/7/2019; invoice 39227 dated 11/9/2019; LPO dated 24/6/2018; bank payment slip posted on 9/1/2016; bank paying slip 29/7/2016; bank slip posted on 16/9/2016; cheque No. 003639; cheque dated 1/12/2016; LPO dated 25/5/2019; demand letter dated 16/6/2021; demand letter 6/5/2025; cheque leaf dated 27/4/2023.
The counsel placed reliance in the case of E.P Communications Limited v East Africa Courier Services Limited [2019] eKLR where the Superior Court stated that a delivery note is a proof of delivery of goods, that invoices alone do not prove or receipt of goods and that in the absence of a delivery note or other evidence of receipt of goods, it becomes doubtful whether the goods were actually delivered. Further, the Superior Court stated that, courts of law act on hard evidence not sympathy or speculation.
Further, it was submitted that the Respondent’s invoices produced as exhibit 4,5,6,9, 10,11 and LPOs’ produced as exhibit 12 and 18 alone do not prove delivery of receipts of the goods by the Appellant. The invoices produced as exhibits 4,5,6,9,10 and 11 are not supported by any duly stamped and signed delivery note. In absence of delivery note or evidence of receipt of the gods, the Honourable court is called upon to find that the goods mentioned in invoices produced as exhibits 4,5,6,7,9, 10 and 11 and LPOs’ produced as exhibit 12 and 1j8 were never delivered and or supplied to the Appellant. That the Respondent only produced two delivery notes dated 25/6/2019 and 03/07/2019 as exhibit 7(b) and 8(b) as shown in the record of appeal. That that the delivery note dated 25/6/2019 bears the stamp of Friends school Kaimosi Girls and is illegally signed by one Rael Murila. That the delivery note dated 3/7/2019 only bears the stamp of Friends School Kaimosi Girls and does not bear the signature of approval by an agent and or employee of the Appellant herein and that without the signature of approval, the goods mentioned in the delivery note dated 25/6/2019 were never supplied. That CW1 produced a copy of the Respondent statement of account as exhibit No. 1. Counsel further relied on Section 37 of the Evidence Act which provides that:
“Entries in books of account regularly kept in the course of business are admissible whenever they refer to a matter into which the court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability.”
Further, reliance was placed in the case of Five Continents Ltd v Mpata Investments Ltd [2003] eKLR where it was held that:
“The plaintiff mainly relied on the accounts analyzing to show the defendant’s indebtedness. That accounts analysis was apparently prepared by the Plaintiff for use in this suit. It is not itself a book of account regularly kept in the course of business. Even if it were, such a statement would not alone be sufficient evidence to charge the defendant with liability (see Section 37 of the Evidence Act). It follows that the accounts analysis on which the learned judge relied has no evidential value.”
Flowing from the above, it was submitted that the Respondent failed to render signed and verified evidence to demonstrate the debt. That the Respondent’s unstamped and unsigned statement of account lacks legal binding force without proper authentication and that this Court should disregard it.
13. On the issue of whether the contract between the Appellant and Respondent was marred by serious flaws, irregularities, improprieties and illegalities making it unenforceable, it was submitted that the Appellant is a Public entity and that Article 227 (1) of the Constitution obligates state organs and public entities to procure goods and services in accordance with a system that is fair, equitable, transparent, competitive and cost effective. Further that the Public Procurement and Assets Disposal Act of 2015 provides the framework within which policies relating to procurement are to be implemented. That counsel relied on Section 5(1) of the procurement and Assets Disposal Act 2015 as regards to whether an oral or implied contract can be implied between the Appellant and the Respondent which states as follows:
“ 5 Conflicts with other Acts.
(1) This Act shall prevail in case of any inconsistency between this Act and any other legislation or government notices or circulars, in matters relating to procurement and Asset Disposal except in cases where procurement of professional services is governed by an Act of Parliament applicable for such services…”
That the alleged supply and the alleged part payment if any cannot be related to this case so as to find that there was an implied contract between parties.
On the issue of whether the Respondent had a similar and equal responsibility to ensure that the tender and or procurement herein followed the law, it was submitted that the Respondent had a similar and equal responsibility to ensure that the procurement followed the law as outlined in Section 72 of the Public Procurement and Assets Disposal Act of 2015 that responsibility for complying with Act, contractors, suppliers and consultants shall comply with the provisions of this Act and Regulations. Further, it was stated that the ignorance/omission by the Respondent to ensure that there was compliance with the law before supplying bread and flour if any is not excusable. Reliance was further placed in the case of Royal Media Services V Independent Electoral & Boundaries Commission & 3 Others [2019] eKLR where it was held that:
“45. It is the duty of the Contractor as it is of the procuring entity to observe the provisions of statue and the Regulations thereunder. Section 27 imposes as unequivocal responsibility on any contractor, supplier or consultant intending to supply goods or services to a public entity to comply with all the provisions of the Act and the Regulations. This duty, in my view, extends to the contractor making due enquiries as to whether the procuring entity has complied with its side of the law and declining to enter into contract which is procured in apparent disregard of the law. For that reason, a contractor or supplier cannot find refuge in the argument that compliance was an internal matter of the public entity when he/she has not done enough to enquire about compliance or himself/herself guilty of infringement.”
14. As regards the issue of whether the procurement and supply of bread and flour by the Respondent if any complied with the statutory provisons of the Constitution and the Public Procurement and Assets Disposal Act of 2015, it was submitted that vitiating factors in contract are those factors the existence of which will cripple or invalidate the contract. They include mistake, duress, misrepresentation, undue influence, illegality, unconscionable contracts, fraud, insanity, a party being a minor and void agreements. That these factors may infect either at its formation or at the performance. That CW1 did not confirm that he did supply any tender documents in support of the Respondent’s claim as against the Appellant. That the Appellant did produce tender notice for the year 2019 and dated 19/10/2018 and page 41, under tender notice No. 20 FSK/TENDER/2019/42BAKERY ITEMS/MAINTENANCE, that the Appellant invited eligible suppliers to make bid in relation to the tender. That it was a mandatory condition for eligible suppliers to pay Kshs1000/= non refundable tender fee and thereafter tender their bid on or before 26/11/2018. That the Respondent neither paid the non-refundable tender fee nor made any application in relation to the above tender advert. That the Appellant produced a copy of the minutes of the Adhoc Tender Committee held on 30/1/2019 as exhibit 6 in relation to tender notice number 20 FSK/TENDER/2019/42 BAKERY ITEMS/MAINENANCE and the adhoc tender committee recommended that the school to source directily or re-advertise for the same. That Public Procurement and Assets Disposal Act of 2015 provided it meets the parameters set out in Section 103 and 104 of the Act which provides that:
“ 103. When direct procurement may be used
1) A procuring entity may use direct procurement as allowed under sub-section (2) as long as the purpose is no to avoid competition.
2) A procuring entity may use direct procurement if any of the following are satisfied –
a. The goods, works or services are available only from the particular supplier or contractor, or a particular supplier or contractor has exclusive rights in respect of the goods, works or services, and no reasonable alternative or substitute exists;
b. Due to war, invasion, disorder, natural disaster or ther is an urgent need for the goods, work or services, and engaging in tendering proceedings or other method of procurement would therefore be impractical, provided that the circumstances giving rise to the urgency were neither foreseeable by procuring entity nor the result of dilatory conduct of its part
c. Owing to a catastrophic event, there is an urgent need for the goods, works or services
(d) the procuring entity, having procured goods, equipment, technology or services from a supplier or contractor, determines that additional supplies shall be procured from that supplier or contractor for reasons of standardization or because of the need for compatibility with existing goods, equipment, technology or services, taking into account the effectiveness of the original procurement in meeting the needs of the procuring entity, the limited size of the proposed procurement in relation to the original procurement, the reasonableness of the price and the unsuitability of alternatives to the goods or services in question;
(e) for the acquiring of goods, works or services provided by a public entity provided that the acquisition price is fair and reasonable and compares well with known prices of goods, works or services in the circumstances.
(3) A public officer who contravenes the provisions of subsection (2) commits and offence.
104. Procedure for direct procurement
An accounting officer of a procuring entity shall adhere to the following procedures with respect to direct procurement—
(a) issue a tender document which shall be the basis of tender preparation by tenderer and subsequent negotiations.
(b) appoint an ad hoc evaluation committee pursuant to section 46 to negotiate with a person for the supply of goods, works or non- consultancy services being provided;
(c) ensure appropriate approvals under this Act have been granted;
(d) ensure the resulting contract is in writing and signed by both parties.”
15. It was further submitted that in regards to the provisions of Section 103 (1) and (2) of the Public Procurement Act above, it is not in dispute that the same fails to meet the threshold set under Article 227 (1) of the Constitution which obligates state organs and public entities to procure goods and services in accordance with a system that is fair, equitable, transparent, competitive and cost effective. That on the aspect of competition, the Respondent failed to tender evidence on how they were awarded the tender. In the absence of re – advertisement of the tender, it is our submission that the Respondent chose a procurement mode that was not fair, competitive, equitable and transparent. It was done in Secrecy to the exclusion of other eligible supplier’s contrary to the Clear provisions of Statute. That the mode of procurement chosen herein does not comply with the clear provisions of Section 103 (2) of the Public Procurement Act. For Instance, there no evidence on record that the Respondent has exclusive rights in respect of supply of bread and flour. There is equally no evidence that due to war, invasion, disorder, natural disaster or there was an urgent need for bread and flour and engaging in tendering proceedings or any other method of procurement would therefore be impractical. Similarly, there is no evidence that owing to a catastrophic event, there was an urgent need for supply of bread and flour making it impractical to use other methods of procurement because of the time involved in using those methods. There is equally no evidence that the Respondent previously supplied bread and flour for reasons of standardization or there was need for compatibility with existing goods. Lastly, there is no evidence that the acquisition price by the Respondent is fair and reasonable and compares well with known prices of bread and flour.
16. As regards the aspect of Procedure as provided for under Section 104 of the Public Procurement Act, it was submitted that the above – mentioned procedure provides to the effect that in direct procurement an accounting officer of a procuring entity shall adhere issue a tender document which shall be the basis of tender preparation by tenderer and subsequent negotiations. That in the above context is interpreted as imposing a mandatory and compulsory duty implying that the procedure and duty imposed pursuant to the provisions of Section 104 of the Public Procurement Act is mandatory and compulsory. That in the above provision, it is only the Accounting Officer of the Appellant herein who is obligated to give tender documents. Further, upon issuance of the tender documents by the Accounting Officer, the said documents shall form a basis for negotiations. That CW1 did produce the following exhibits namely; a statement of account, demand letters dated 16/06/2021 and 06/05/2025, copies of cheques dated 27/04/2023, 25/01/2019, 15/02/2019, 28/05/2019, 03/07/2019, 11/09/2019, 03/10/2019, bank slips dated 09/01/2016, 29/07/2016, 16/09/2016, cheque number 003639, cheque dated 01/12/2016. My Lord the above-mentioned exhibits were never issued by the Accounting Officer of the Appellant herein and the same cannot form basis for negotiation in direct procurement.
17. Again, under this condition, the Appellant produced a copy of an LPO dated 24/06/2018 and 25/03/2019. A perusal of the LPO dated 24/06/2018 and 25/03/2019 at pages 101 and 106 of the Record of Appeal respectively, it is not in dispute that both are neither signed nor stamped by the Accounting Officer of the Appellant herein. That by signing and stamping, the Accounting Officer would simply be approving the documents but in this case the documents were never issued, signed nor approved by the Accounting Officer. It was therefore submitted that the said LPO’s were never issued by the Accounting Officer of the Appellant and that the same cannot form basis for negotiation in direct procurement.
18. As regards whether the Accounting Officer did appoint an ad hoc evaluation committee pursuant to section 46 to negotiate with a person for the supply of goods, works or non- consultancy services being provided, it was contended that the Respondent failed to tender evidence of establishment of an ad hoc evaluation committee. That the Respondent also failed to supply minutes from which an inference would have been made that indeed negotiations were ever held pursuant to the provisions of Section 104 (b) of the Public Procurement Act.
19. As regards the issue of approval, reliance was placed on the provisions of Section 104 (c) of the Public Procurement Act, no appropriate approvals were granted since none were supplied by the Respondent. Lastly, pursuant to the provisions of Section 104 (d) of the Public Procurement Act, there is no evidence that the resulting contract was in writing and signed by both the Accounting Officer of the Appellant and the Respondent herein.
20. It was submitted that the Appellant established that the tender transaction herein was an execution of illegality. That the tender transaction is illegal, fraudulent and violated the clear provisions of the Constitution and the Public Procurement and Asset Disposal Act. That in order to qualify for payment the contract had to be legal and lawful. That allowing the Respondent to receive monies on the impugned contract will be tantamount to not only rewarding an illegality, but also sanitizing and laundering those fraudulent tenders.
21. Counsel further relied in the case of Nairobi High Court Anti – Corruption suit No. E026 of 2018; Ethics and Anti – Corruption Commission versus Joseph Muindi Tevulo, Benjamin Ruto Timitim and Robert Simiyu Wambulwa T/A Koyi Building Contractors by Justice Prof (Dr) Nixon Sifuna wherein the learned Judge held as follows at paragraph 40, 41, 42, 43 and 44: -
“40. The evidence so far on record in this suit has revealed serious flaws, irregularities, improprieties and illegalities in the manner the Defendants handled the subject tenders. It has gravely faulted not only the award of the said tenders but also the payments (overpayments) as well the entire tendering processes.
41. With extensive details, detailing the anomalies and outright violations of the procurement process and law. These infractions and fraud were aptly summed up by PW6 in his testimony. A testimony that notably clearly bore out his expertise in conducting such investigations. He in a blow-by-blow account left nothing to guess work; as he dissected and explained the entire scam with graphic details on every element and material particular of the scheme and fraud perpetrated by the Defendants in the subject tenders.
42. This covered the entire process from the bids to the tender award and to the payments. As already noted, the effect of the Defendants having filed Defence and subsequently failed or elected to call witnesses and adduce evidence in support of their Defence(s) and to controvert the Plaintiff's assertions, is that those assertions remain uncontroverted and if they meet the evidentiary threshold, they are to be believed and relied on by the Court in its determination of the suit.
43. Notably, the County had a budget for the said works, but which as a result of this fraud-ladden tender caused the County Government to pay more than was budgeted. I need to emphasize though, that the Defendants' sin was not only overshooting the budget. But also the irregularities, illegalities and fraud in the said tenders. The contracts were as illegal as the
44. This Court considers the subject transaction as an execution of illegality, rather than the rendering of a service for which payment should be made. To qualify for payment the contract had to be legal and lawful. Allowing the 3rd Defendant to retain the monies paid on those contracts, will be tantamount to not only rewarding an illegality, but also sanitizing and laundering those fraudulent tenders.
22. Further, in the case of Alphas Ngonda – Chairman & 3 others v Joseph Kitonga Kithuku t/a Muki Hardware & General Works [2020] eKLR Justice P.J.O Otieno held as follows at paragraph 25: -
“25. …I do find that the evidence led showed that Public procurement and asset disposal act was not followed in awarding the tender upon which the suit was grounded and that on that account it was not open to the court to enforce such an agreement by entry of judgment. This present the second compelling ground that the appeal be allowed and the judgment of the lower court set aside.”
23. Learned counsel further submitted that in the instant case, there is a greater public good in a Co
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