1. By a plaint dated 1st August 2023, the Respondent claimed Kshs.1,073,010 from the Appellant, allegedly being the outstanding balance for assorted goods supplied to Toroko Primary School between July and September 2022.
2. The Respondent pleaded that the goods were worth Kshs.1,773,010 and that the Appellant paid Kshs.700,000, leaving a balance of Kshs.1,073,010. He further alleged that a cheque for Kshs.300,000 issued by the Appellant was dishonoured.
3. The Appellant denied the claim. It maintained that there was no lawful tender, local purchase order, contract or procurement process between the parties and denied that the goods were lawfully ordered, delivered or accepted by an authorised officer of the school.
4. In its judgment delivered on 5th June 2024, the trial court found that the Respondent had proved his claim and entered judgment against the Appellant for Kshs.1,073,010 together with costs and interest.
5. The Appellant challenges that judgment on the principal grounds that the trial court erred by:
a) Finding that a valid contractual relationship existed;
b) Finding that the Respondent had proved supply of goods worth Kshs.1,773,010;
c) Failing to apply the law regulating procurement by public entities;
d) Failing to give proper weight to the Appellant’s pleadings and evidence; and
e) Enforcing an illegal transaction.
B. Duty of the First Appellate Court
6. As a first appellate court, this Court must reconsider and evaluate the evidence and reach its own independent conclusions, while bearing in mind that it did not see or hear the witnesses testify.
7. That duty was stated in Selle & Another v Associated Motor Boat Company Ltd & Others [1968] EA 123 and Peters v Sunday Post Ltd [1958] EA 424. An appellate court may interfere where the trial court’s conclusions are unsupported by the evidence, are based on a misapprehension of it or are founded on wrong principles: see Kiruga v Kiruga & Another [1988] KLR 348.
8. I have accordingly reconsidered the pleadings, evidence, memorandum of appeal, written submissions, authorities cited and the impugned judgment.
Parties’ Submissions
9. The Appellant submitted that Toroko Primary School is a public entity governed by Article 227 of the Constitution and the Public Procurement and Asset Disposal Act, 2015.
10. It argued that the Respondent did not produce a tender, request for quotations, notification of award, local purchase order or written contract. The alleged goods were delivered to a security officer who had no authority to inspect and accept supplies or bind the school.
11. The Appellant relied on sections 107–109 of the Evidence Act and submitted that the Respondent failed to prove the existence of a lawful contract, delivery, acceptance and the amount claimed.
12. It cited, among other authorities, Multi-Line Motors (K) Ltd v Migori County Government [2019] KEHC 9823 (KLR), Heptulla v Noormohamed [1984] KLR 580 and Kenya Airways Ltd v Satwant Singh Flora [2013] eKLR.
13. The Respondent maintained that an implied contract arose from the delivery notes, invoices, part payments of Kshs.700,000 and the dishonoured cheque for Kshs.300,000.
14. He submitted that the goods were received by Raphael Kitum, a security officer at the school. He further argued that the procurement statute did not apply because the supply arrangement was for a short period and he was a member of the School Infrastructure Project Committee.
15. The Respondent relied on section 4(2)(a) of the Public Procurement and Asset Disposal Act, South Nyanza Sugar Company Ltd v Albayan Logistics Ltd [2019] KEHC 9465 (KLR) and National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another [2001] KLR 112.
16. He further submitted that the Appellant had not proved its allegations of fraud, relying on Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000] eKLR.
D. Issues for Determination
17. The issues are:
a) Whether the alleged transaction was governed by public-procurement law;
b) Whether the Respondent proved a valid and enforceable contract;
c) Whether delivery, acceptance and the outstanding balance were proved; and
d) Whether the trial court’s judgment should be disturbed.
E. Analysis
Applicability of public-procurement law
18. Toroko Primary School is a public institution and its Board of Management administers public resources.
19. Article 227(1) of the Constitution requires public entities contracting for goods or services to do so through a system that is fair, equitable, transparent, competitive and cost-effective.
20. Although paragraph 1 of the Fourth Schedule to the Basic Education Act permits a Board of Management to enter into contracts, that power must be exercised in conformity with the Constitution and the Public Procurement and Asset Disposal Act.
21. Section 4(1) of the Act applies to public entities in matters of procurement planning, procurement processing, inventory and asset management and contract management.
22. The Respondent relied on section 4(2)(a), which excludes the retaining of an individual’s services for a limited term where the person works primarily as though he were an employee.
23. That exception does not apply. The Respondent was not retained to provide personal services in the manner of an employee. His pleaded case was that he supplied assorted goods to the school. The short duration of a supply arrangement does not remove it from procurement law.
24. The Respondent’s alleged membership of the School Infrastructure Project Committee also did not exempt the transaction. If anything, supplying goods to an institution whose committee he served required greater transparency and observance of conflict-of-interest safeguards.
Whether a valid contract was proved
25. Under sections 107–109 of the Evidence Act, the Respondent bore the
burden of proving the existence and terms of the alleged contract, its performance and the outstanding amount.
26. During cross-examination, the Respondent admitted that:
a) The Appellant was a public school;
b) There was no advertisement inviting him to supply goods;
c) He did not produce the letter through which he allegedly sought permission to supply;
d) He had no written contract or local purchase order;
e) The invoices were not signed by the recipient; and
f) The goods were allegedly received on Sundays by a school watchman whom he did not call as a witness.
27. The Respondent did not produce a procurement plan, request for quotations, tender document, notification of award, local purchase order, written contract, inspection and acceptance certificate, stores receipt voucher or Board minutes authorising the procurement.
28. Section 44 of the Public Procurement and Asset Disposal Act requires the accounting officer to ensure compliance with the Act. Section 91 establishes open tendering as the preferred method, while section 135 requires a procurement contract to be confirmed in the prescribed manner following a lawful award.
29. Even where the value or nature of procurement permits use of a purchase order instead of an elaborate contract, there must be a lawfully issued procurement instrument. None was produced.
30. In Multi-Line Motors (K) Ltd v Migori County Government [2019] KEHC 9823 (KLR), the Court held that where a public entity denies initiating a procurement process, the supplier must demonstrate the lawful procurement method through which the alleged contract arose.
31. In Board of Management Obera Boys High School v Nancy Anchieng Odhiambo t/a Flovin General Merchants [2021] eKLR, a supplier’s claim against a public school was found unenforceable for failure to comply with the procurement statute. Invoices and delivery documents could not substitute for proof of a lawfully authorised procurement process.
32. A similar conclusion was reached in Shabwali Secondary School v Vwinah [2024] KEHC 6206 (KLR). The Court observed that, despite the apparent hardship to a supplier, the greater public interest lies in declining to enforce transactions undertaken contrary to statute.
33. In Principal/Board of Directors Lirhanda Girls High School v Lutta t/a Sigma Telecoms [2025] KEHC 2650 (KLR), the Court allowed an appeal by a public school where the alleged supplies were unsupported by a procurement contract meeting the statutory requirements.
34. Further, in County Government of Kiambu v Bradonlink Contractors Ltd & Another [2023] KEHC 2338 (KLR), the Court emphasised that a public entity cannot ordinarily be bound through an informal arrangement entered into outside the procurement framework.
35. More recently, in Board of Management, Friends School Kaimosi Girls v Alicia Bakers and Confectioners Ltd [2026] KEHC 1013 (KLR), the High Court reiterated that a court cannot enforce an illegal procurement transaction merely because goods were allegedly supplied to or received by a public institution.
36. These authorities are applicable here. The Respondent did not identify any lawful procurement method through which the Appellant incurred the alleged liability.
37. The Respondent’s reliance on South Nyanza Sugar Company Ltd v Albayan Logistics Ltd is distinguishable. That case concerned a commercial relationship evidenced by the parties’ documents and conduct. The present case concerns a public entity whose contracting powers are controlled by mandatory procurement legislation.
38. Similarly, the principle that courts cannot rewrite contracts presupposes the existence of a valid contract. It cannot be invoked to enforce a transaction undertaken contrary to statute.
39. In Heptulla v Noormohamed [1984] KLR 580 and Kenya Airways Ltd v Satwant Singh Flora [2013] eKLR, the Court of Appeal affirmed that courts cannot enforce illegal contracts or obligations arising from illegal transactions.
40. I therefore find that the Respondent did not prove a valid and enforceable procurement contract.
Part payments and the dishonoured cheque
41. The alleged payments and dishonoured cheque could indicate that certain school officials had dealings with the Respondent. They could not, however, dispense with or retrospectively validate mandatory procurement requirements.
42. Public officers cannot create binding public obligations through acts performed outside their lawful authority. An irregular payment or issuance of a cheque cannot transform an unlawful procurement into a valid contract.
43. Further, the Respondent did not produce bank statements, payment vouchers or cheque records establishing that the entire Kshs.700,000 related specifically to the two invoices forming the subject of the suit.
44. The trial court therefore erred in treating the part payments and dishonoured cheque as sufficient proof of a valid contract without first determining whether the procurement had been lawfully authorised.
Delivery and acceptance
45. The delivery notes were allegedly received by a security officer. The Respondent did not prove that the officer had authority to inspect and accept goods worth approximately Kshs.1.7 million on behalf of the Board.
46. The security officer and former head teacher who allegedly authorised the supplies were not called as witnesses. No inspection report, stores ledger entry, inventory record or goods received note was produced.
47. The invoices were prepared by the Respondent and were not signed or stamped by an authorised recipient. An invoice is a unilateral demand for payment and does not, by itself, prove that the goods specified were ordered, delivered and accepted.
48. The Respondent contended that the Appellant did not object to the production of the documents at trial. The admission of a document as an exhibit does not amount to an admission of the truth of its contents, the legality of the underlying transaction or the weight to be attached to it.
49. I therefore find that the Respondent did not prove lawful delivery and acceptance of the alleged goods.
Allegations of fraud
50. Fraud must be specifically pleaded, particularised and strictly proved. That principle was restated in Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000] eKLR.
51. The Appellant did not produce a police report, audit finding or investigation report establishing the alleged collusion. The trial court was therefore correct to find that fraud had not been proved.
52. The failure to prove fraud did not, however, establish a valid contract. Statutory illegality arising from non-compliance with procurement law is distinct from fraud.
53. Although the trial court referred to the Appellant’s evidence, it failed to give proper legal effect to the absence of a procurement process and the Respondent’s admissions that there was no tender, local purchase order or written contract.
Conclusion and Disposition
54. Upon independently evaluating the evidence, I find that the Respondent failed to prove a valid and enforceable procurement contract.
55. Section 4(2)(a) of the Public Procurement and Asset Disposal Act did not exempt the transaction. The Respondent was a supplier of goods and not a temporary employee or person working substantially in the manner of an employee.
56. The delivery notes, invoices, alleged part payments and dishonoured cheque could not cure the absence of a lawful procurement process.
57. To uphold the impugned judgment would permit public-procurement safeguards to be bypassed through informal dealings between individual public officers and private suppliers. The trial court consequently erred in entering judgment for the Respondent.
58. The appeal is therefore allowed, and the Court makes the following orders:
a) The judgment and decree of Hon. E. Kigen, Principal Magistrate, delivered on 5th June 2024 in Iten CMCC No. E063 of 2023 are hereby set aside.
b) The Respondent’s suit in Iten CMCC No. E063 of 2023 is dismissed.
c) The Appellant shall have the costs of the appeal.
d) Considering the issuance of a cheque from the school’s account and the apparent role played by its former officials in the disputed transaction, each party shall bear its own costs before the trial court.
It is so ordered.
2. The Respondent pleaded that the goods were worth Kshs.1,773,010 and that the Appellant paid Kshs.700,000, leaving a balance of Kshs.1,073,010. He further alleged that a cheque for Kshs.300,000 issued by the Appellant was dishonoured.
3. The Appellant denied the claim. It maintained that there was no lawful tender, local purchase order, contract or procurement process between the parties and denied that the goods were lawfully ordered, delivered or accepted by an authorised officer of the school.
4. In its judgment delivered on 5th June 2024, the trial court found that the Respondent had proved his claim and entered judgment against the Appellant for Kshs.1,073,010 together with costs and interest.
5. The Appellant challenges that judgment on the principal grounds that the trial court erred by:
a) Finding that a valid contractual relationship existed;
b) Finding that the Respondent had proved supply of goods worth Kshs.1,773,010;
c) Failing to apply the law regulating procurement by public entities;
d) Failing to give proper weight to the Appellant’s pleadings and evidence; and
e) Enforcing an illegal transaction.
B. Duty of the First Appellate Court
6. As a first appellate court, this Court must reconsider and evaluate the evidence and reach its own independent conclusions, while bearing in mind that it did not see or hear the witnesses testify.
7. That duty was stated in Selle & Another v Associated Motor Boat Company Ltd & Others [1968] EA 123 and Peters v Sunday Post Ltd [1958] EA 424. An appellate court may interfere where the trial court’s conclusions are unsupported by the evidence, are based on a misapprehension of it or are founded on wrong principles: see Kiruga v Kiruga & Another [1988] KLR 348.
8. I have accordingly reconsidered the pleadings, evidence, memorandum of appeal, written submissions, authorities cited and the impugned judgment.
Parties’ Submissions
9. The Appellant submitted that Toroko Primary School is a public entity governed by Article 227 of the Constitution and the Public Procurement and Asset Disposal Act, 2015.
10. It argued that the Respondent did not produce a tender, request for quotations, notification of award, local purchase order or written contract. The alleged goods were delivered to a security officer who had no authority to inspect and accept supplies or bind the school.
11. The Appellant relied on sections 107–109 of the Evidence Act and submitted that the Respondent failed to prove the existence of a lawful contract, delivery, acceptance and the amount claimed.
12. It cited, among other authorities, Multi-Line Motors (K) Ltd v Migori County Government [2019] KEHC 9823 (KLR), Heptulla v Noormohamed [1984] KLR 580 and Kenya Airways Ltd v Satwant Singh Flora [2013] eKLR.
13. The Respondent maintained that an implied contract arose from the delivery notes, invoices, part payments of Kshs.700,000 and the dishonoured cheque for Kshs.300,000.
14. He submitted that the goods were received by Raphael Kitum, a security officer at the school. He further argued that the procurement statute did not apply because the supply arrangement was for a short period and he was a member of the School Infrastructure Project Committee.
15. The Respondent relied on section 4(2)(a) of the Public Procurement and Asset Disposal Act, South Nyanza Sugar Company Ltd v Albayan Logistics Ltd [2019] KEHC 9465 (KLR) and National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another [2001] KLR 112.
16. He further submitted that the Appellant had not proved its allegations of fraud, relying on Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000] eKLR.
D. Issues for Determination
17. The issues are:
a) Whether the alleged transaction was governed by public-procurement law;
b) Whether the Respondent proved a valid and enforceable contract;
c) Whether delivery, acceptance and the outstanding balance were proved; and
d) Whether the trial court’s judgment should be disturbed.
E. Analysis
Applicability of public-procurement law
18. Toroko Primary School is a public institution and its Board of Management administers public resources.
19. Article 227(1) of the Constitution requires public entities contracting for goods or services to do so through a system that is fair, equitable, transparent, competitive and cost-effective.
20. Although paragraph 1 of the Fourth Schedule to the Basic Education Act permits a Board of Management to enter into contracts, that power must be exercised in conformity with the Constitution and the Public Procurement and Asset Disposal Act.
21. Section 4(1) of the Act applies to public entities in matters of procurement planning, procurement processing, inventory and asset management and contract management.
22. The Respondent relied on section 4(2)(a), which excludes the retaining of an individual’s services for a limited term where the person works primarily as though he were an employee.
23. That exception does not apply. The Respondent was not retained to provide personal services in the manner of an employee. His pleaded case was that he supplied assorted goods to the school. The short duration of a supply arrangement does not remove it from procurement law.
24. The Respondent’s alleged membership of the School Infrastructure Project Committee also did not exempt the transaction. If anything, supplying goods to an institution whose committee he served required greater transparency and observance of conflict-of-interest safeguards.
Whether a valid contract was proved
25. Under sections 107–109 of the Evidence Act, the Respondent bore the
burden of proving the existence and terms of the alleged contract, its performance and the outstanding amount.
26. During cross-examination, the Respondent admitted that:
a) The Appellant was a public school;
b) There was no advertisement inviting him to supply goods;
c) He did not produce the letter through which he allegedly sought permission to supply;
d) He had no written contract or local purchase order;
e) The invoices were not signed by the recipient; and
f) The goods were allegedly received on Sundays by a school watchman whom he did not call as a witness.
27. The Respondent did not produce a procurement plan, request for quotations, tender document, notification of award, local purchase order, written contract, inspection and acceptance certificate, stores receipt voucher or Board minutes authorising the procurement.
28. Section 44 of the Public Procurement and Asset Disposal Act requires the accounting officer to ensure compliance with the Act. Section 91 establishes open tendering as the preferred method, while section 135 requires a procurement contract to be confirmed in the prescribed manner following a lawful award.
29. Even where the value or nature of procurement permits use of a purchase order instead of an elaborate contract, there must be a lawfully issued procurement instrument. None was produced.
30. In Multi-Line Motors (K) Ltd v Migori County Government [2019] KEHC 9823 (KLR), the Court held that where a public entity denies initiating a procurement process, the supplier must demonstrate the lawful procurement method through which the alleged contract arose.
31. In Board of Management Obera Boys High School v Nancy Anchieng Odhiambo t/a Flovin General Merchants [2021] eKLR, a supplier’s claim against a public school was found unenforceable for failure to comply with the procurement statute. Invoices and delivery documents could not substitute for proof of a lawfully authorised procurement process.
32. A similar conclusion was reached in Shabwali Secondary School v Vwinah [2024] KEHC 6206 (KLR). The Court observed that, despite the apparent hardship to a supplier, the greater public interest lies in declining to enforce transactions undertaken contrary to statute.
33. In Principal/Board of Directors Lirhanda Girls High School v Lutta t/a Sigma Telecoms [2025] KEHC 2650 (KLR), the Court allowed an appeal by a public school where the alleged supplies were unsupported by a procurement contract meeting the statutory requirements.
34. Further, in County Government of Kiambu v Bradonlink Contractors Ltd & Another [2023] KEHC 2338 (KLR), the Court emphasised that a public entity cannot ordinarily be bound through an informal arrangement entered into outside the procurement framework.
35. More recently, in Board of Management, Friends School Kaimosi Girls v Alicia Bakers and Confectioners Ltd [2026] KEHC 1013 (KLR), the High Court reiterated that a court cannot enforce an illegal procurement transaction merely because goods were allegedly supplied to or received by a public institution.
36. These authorities are applicable here. The Respondent did not identify any lawful procurement method through which the Appellant incurred the alleged liability.
37. The Respondent’s reliance on South Nyanza Sugar Company Ltd v Albayan Logistics Ltd is distinguishable. That case concerned a commercial relationship evidenced by the parties’ documents and conduct. The present case concerns a public entity whose contracting powers are controlled by mandatory procurement legislation.
38. Similarly, the principle that courts cannot rewrite contracts presupposes the existence of a valid contract. It cannot be invoked to enforce a transaction undertaken contrary to statute.
39. In Heptulla v Noormohamed [1984] KLR 580 and Kenya Airways Ltd v Satwant Singh Flora [2013] eKLR, the Court of Appeal affirmed that courts cannot enforce illegal contracts or obligations arising from illegal transactions.
40. I therefore find that the Respondent did not prove a valid and enforceable procurement contract.
Part payments and the dishonoured cheque
41. The alleged payments and dishonoured cheque could indicate that certain school officials had dealings with the Respondent. They could not, however, dispense with or retrospectively validate mandatory procurement requirements.
42. Public officers cannot create binding public obligations through acts performed outside their lawful authority. An irregular payment or issuance of a cheque cannot transform an unlawful procurement into a valid contract.
43. Further, the Respondent did not produce bank statements, payment vouchers or cheque records establishing that the entire Kshs.700,000 related specifically to the two invoices forming the subject of the suit.
44. The trial court therefore erred in treating the part payments and dishonoured cheque as sufficient proof of a valid contract without first determining whether the procurement had been lawfully authorised.
Delivery and acceptance
45. The delivery notes were allegedly received by a security officer. The Respondent did not prove that the officer had authority to inspect and accept goods worth approximately Kshs.1.7 million on behalf of the Board.
46. The security officer and former head teacher who allegedly authorised the supplies were not called as witnesses. No inspection report, stores ledger entry, inventory record or goods received note was produced.
47. The invoices were prepared by the Respondent and were not signed or stamped by an authorised recipient. An invoice is a unilateral demand for payment and does not, by itself, prove that the goods specified were ordered, delivered and accepted.
48. The Respondent contended that the Appellant did not object to the production of the documents at trial. The admission of a document as an exhibit does not amount to an admission of the truth of its contents, the legality of the underlying transaction or the weight to be attached to it.
49. I therefore find that the Respondent did not prove lawful delivery and acceptance of the alleged goods.
Allegations of fraud
50. Fraud must be specifically pleaded, particularised and strictly proved. That principle was restated in Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000] eKLR.
51. The Appellant did not produce a police report, audit finding or investigation report establishing the alleged collusion. The trial court was therefore correct to find that fraud had not been proved.
52. The failure to prove fraud did not, however, establish a valid contract. Statutory illegality arising from non-compliance with procurement law is distinct from fraud.
53. Although the trial court referred to the Appellant’s evidence, it failed to give proper legal effect to the absence of a procurement process and the Respondent’s admissions that there was no tender, local purchase order or written contract.
Conclusion and Disposition
54. Upon independently evaluating the evidence, I find that the Respondent failed to prove a valid and enforceable procurement contract.
55. Section 4(2)(a) of the Public Procurement and Asset Disposal Act did not exempt the transaction. The Respondent was a supplier of goods and not a temporary employee or person working substantially in the manner of an employee.
56. The delivery notes, invoices, alleged part payments and dishonoured cheque could not cure the absence of a lawful procurement process.
57. To uphold the impugned judgment would permit public-procurement safeguards to be bypassed through informal dealings between individual public officers and private suppliers. The trial court consequently erred in entering judgment for the Respondent.
58. The appeal is therefore allowed, and the Court makes the following orders:
a) The judgment and decree of Hon. E. Kigen, Principal Magistrate, delivered on 5th June 2024 in Iten CMCC No. E063 of 2023 are hereby set aside.
b) The Respondent’s suit in Iten CMCC No. E063 of 2023 is dismissed.
c) The Appellant shall have the costs of the appeal.
d) Considering the issuance of a cheque from the school’s account and the apparent role played by its former officials in the disputed transaction, each party shall bear its own costs before the trial court.
It is so ordered.