https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11201

 REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISUMU COUNTY COURT NAME: KISUMU HIGH COURT CASE NUMBER: HCCA/E050/2026 BONIFACE APOPA SUING FOR {SIMUR KONDIEK HOLDINGS LIMITED} VS COUNTY GOVERNMENT OF KISUMU JUDGMENT ***(Being an Appeal against the Judgment and Decree of Hon. Muhanda Slyvia Ashitsa (RM) in KISUMU SCCCOMME/E5205/2025 dated and delivered on 6th March, 2026)*** # INTRODUCTION * 1. The Claimant, vide a Statement of Claim dated 5th December 2025, instituted a suit against the Respondents in which the Claimant averred that on or about 24th day of June, 2022 they entered into a contract for consultancy services for capacity building for Kobura Ward Youth Digital Literacy Program for Kshs. 1,400,000/=. On the same day, a Local Service Order was dully issued to the Claimant having been signed by both parties. 2. Thereafter, the Claimant performed the contract as agreed but the Respondents failed to pay the service money. Therefore, the Claimant in their suit sought judgment in the sum of Kshs. 1,000,000/=, compensation to be determined by the court, cost of the claim, other appropriate reliefs that is: payment within 14 days by order of the court, interest at the rate of 5% per month from the date of the invoice, should 14 days elapse before payment is made to the claimant, then the court to issue summons to the respondents to appear and explain to court appropriate measures that they’ve put in place to ensure compliance with the court order, arising from * 1. The Respondents filed a response to the claim dated 14th January 2026. The Respondents denied each and every averment contained in the Statement of Claim and stated that the claim was fictitious and an abuse of the court process calculated to unlawfully appropriate funds and to perpetuate fraud. The Respondents also averred that the Claimant was fully paid a sum of Kshs. 1,800,000/= pursuant to a consultancy contract dated 24th June 2022 for the alleged capacity building services in Kobura Ward and that any further claim for payment in respect of the same service is unlawful, irregular and fraudulent as it would amount to double payment, unjust enrichment and violation of the constitutional and statutory principles governing prudent, accountable and transparent use of public funds. 2. The suit was heard in the Small Claims Court and Judgment delivered on 6th March 2026 where the court entered judgment for the Respondents against the Claimant holding that the balance of convenience in the case was in favour of the Respondents which is a public entity bound by the principles of accounting on public funds provided for in the Constitution and Public Procurement and Asset Disposal Act which the claimant and the court 3. The court found that the contract between the Claimant and Respondents dated 24th June 2022 was voidable for want of consideration and that the claimant did not prove that he indeed executed/performed the work of the contract dated 24th June 2022. 4. The learned magistrate, in conclusion, held as follows: ### "For the above reasons, the court makes a finding that the claimant has failed to prove its claim on balance of probability and claim is dismissed with no orders to costs. In the court’s obiter, the Claimant and the Respondent are advised to be keen on the contents of any contract they prepare and sign and comply with the provisions of the Public Procurement and Asset Disposal Act. Both parties ought to be ***keen on the terms of the contract from the onset to avoid ambiguity.*** * 1. Being dissatisfied with the judgment of the trial court, the Plaintiff lodged the present appeal vide a Memorandum of Appeal dated 27th March 2026, raising the following grounds: - 1. *The learned trial magistrate erred in law in holding that the contract dated 24th June 2022 lacked consideration and was therefore voidable, notwithstanding that the agreement expressly provided for payment of Kshs. 1,400,000/= in exchange for provision of capacity building services by the Appellant.* 2. *The learned trial magistrate erred in law and in principle by equating absence of detailed scope of work with absence of consideration, thereby misapplying the legal doctrine of consideration as defined in law and under established principles of contract law.* 3. *The learned trial magistrate erred in law by acknowledging that the contract was prepared by the Respondent yet failing to interpret any deficiencies in the contract against the Respondent in accordance with the doctrine of contra proferentem.* 4. *The learned trial magistrate erred in law in relying on Section 134 of the Public Procurement and Asset Disposal Act to impose responsibility on the Appellant regarding adequacy of contractual terms, whereas the statute expressly places the duty of preparation of contracts on the accounting officer of the procuring entity.* 5. *The learned trial magistrate erred in law in misapplying the holding in Royal Media Services Ltd v. Independent Electoral & Boundaries Commission & 3 others (2019) eKLR by extending its principle beyond issues of statutory procurement compliance to invalidate an otherwise executed service contract* 6. *The learned trial magistrate erred in law by declining to enforce a duly executed written contract between the parties despite there being no finding that the contract was illegal, unlawful, or void ab initio.* 7. *The learned trial magistrate erred in law and in principle by failing to uphold the binding nature of a written contract freely entered into by parties, contrary to settled principles of contract law that courts will ordinarily enforce lawful agreements as executed by the parties.* 1. The appeal was canvassed by way of written submissions. Before delving into the submissions of both parties, this court notes that, being the first appellate court, it is required under Section 78 of the Civil Procedure Act and as was held in ***Selle v. Associated Motor Boat Co. Ltd [1969] E.A 123***, to re-evaluate, re-assess and analyze the evidence adduced before the trial court and arrive at its own independent conclusions, while bearing in mind that it neither saw nor heard the witness when they testified. # SUBMISSIONS BY PARTIES **Appellant’s Submissions** 1. The Appellant submitted that, as a first appellate court, the court is entitled to interfere where the trial court misdirected itself in law, applied the wrong legal principles, or reached a conclusion unsupported by correct legal reasoning. Although an appellate court would not lightly interfere with findings of fact, it is entitled and duty-bound to intervene where the decision is founded on a wrong legal test. 2. The Appellant submitted that the trial court erred in holding that the contract lacked consideration. It was submitted that the central foundation of the impugned judgment was the finding that the contract lacked consideration because the scope of work was allegedly insufficiently detailed, thus reflecting a fundamental misdirection on the doctrine of consideration. The Appellant maintained that consideration in law was not measured by the level of detail in contractual performance obligations but by the existence of a bargained-for exchange between the parties. Since it was not in dispute that the Appellant undertook to provide capacity building services and the Respondent undertook to pay **Kshs. 1,400,000/=**, counsel submitted that the exchange constituted valid consideration in law. 1. Relying on ***Currie*** *v Misa (1875) LR 10 Ex 153*, consideration was defined as a benefit to one party or a detriment to the other flowing from the bargain. **Similarly**, **in** *Chappell & Co Ltd v Nestle Co Ltd (1960),* the House of Lords reiterated that consideration need only be sufficient in law and not adequate in value or detail. **The same position was adopted in** *Kenya Airways Limited v Satwant Singh Flora (2013)*, where the Court of Appeal reaffirmed that courts do not interrogate the adequacy or commercial perfection of consideration. 1. It was further argued that the trial court introduced a legally unsustainable requirement that consideration had to be defined by detailed deliverables, thereby conflating consideration with certainty of contractual performance, which were distinct doctrines. The Appellant maintained that ## even if a contract was broad in description, so long as there was a clear exchange of value, consideration existed in law. It was therefore submitted that, by holding otherwise, the learned magistrate applied the wrong legal test and thereby reached an erroneous conclusion. 1. The Appellant submitted on the court having misapplied certainty of terms and meeting of minds. The Appellant contended that the trial court misapplied the principles of contractual certainty by acknowledging the existence of a duly executed written contract for Kshs. 1,400,000/= while simultaneously finding that there was no meeting of minds regarding the parties' obligations. It was argued that the Respondents' acceptance and retention, for over four years, of the invoice, reports, pictorial evidence, and attendance lists without disputing performance amounted to clear acknowledgment and acceptance of the services rendered under the contract. It was further contended that once execution of a written contract is established, the law presumes an intention to create legal relations and binding obligations, and that departure from the presumption can only be displaced by recognized vitiating factors such as fraud, misrepresentation, mistake, or illegality, none of which were pleaded or proved. 2. The Appellant also argued that the trial court wrongly relied on Adar Michael's allegations regarding the manner of acceptance despite those conditions not forming part of the parties' written agreement, and that having acknowledged the existence of the agreement, the court could not, in the same breath hold that there was no meeting of minds between the parties. In addition, lack of detail in the scope of work could only raise issues of contractual interpretation rather than invalidate the agreement or negate consensus ad idem. Relying on **Mwaringa v Waashe (Civil Appeal E012 of 2022) [2025] KECA 297 (KLR)** and **National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd (2001),** counsel maintained that courts cannot rewrite contracts for parties, and submitted that by introducing implied deficiencies to invalidate the agreement, the trial court impermissibly rewrote the parties' contract. 1. Further, the Appellant submitted on the issue that the court misapplied procurement law and contract interpretation principles. It was argued that despite relying on Section 134 of the Public Procurement and Asset Disposal Act, the court misdirected itself on its legal effect. The provision placed responsibility for preparation squarely on the procurement accounting officer. The Appellant argued that the trial court improperly shifted the responsibility of interpreting and remedying alleged deficiencies in the contractual scope to the Appellant, contrary to the statutory allocation of duties, thereby unfairly imposing on a private contractor obligation that legally belonged to the public entity. The Appellant further argued that although the trial court acknowledged the doctrine of contra proferentem and accepted that the Respondents drafted the contract, it failed to apply the doctrine correctly by construing any ambiguity or deficiency against the Respondent as the drafter. Instead, the court adopted a contradictory position by recognizing the doctrine but declining to resolve the contractual uncertainty in the Appellant's favour. 2. Further, the Appellant submitted that the trial court misapplied binding authority by relying on **Royal Media Services Ltd v Independent Electoral & Boundaries Commission & 3 Others (2019) eKLR** to conclude that the contract was unenforceable for lack of a detailed scope of work. It was argued that the decision concerned constitutional and statutory compliance in public procurement and did not establish that a concluded consultancy contract becomes unenforceable due to an alleged lack of specificity in its scope. The Appellant further contended that the trial court relied on Section 27(4) of the Public Procurement and Disposal Act, 2005, despite it having been superseded by Sections 44 and 134(1) of the Public Procurement and Asset Disposal Act, 2015, which place primary responsibility for procurement compliance on the Accounting Officer of the procuring entity. 1. Similarly, the Appellant submitted that the extension of the **Royal Media Services Ltd v Independent Electoral & Boundaries Commission & 3 Others (2019) eKLR decision** to their case represented an impermissible expansion of its ratio decidendi and asked the court to apply the precedent within its proper factual and legal context and that by using that authority to support a finding of lack of consideration, the trial court therefore misapplied binding judicial precedent. 2. The Appellant further argued that the trial court erred in refusing to enforce a valid written contract without finding it illegal, void ab initio, or vitiated by fraud or misrepresentation. It was submitted that the court declined to enforce the agreement solely on perceived deficiencies in the contractual scope and an alleged failure to prove performance, contrary to the principles in **Shah v Guilders International Bank Ltd (2003) and** Pius Kimaiyo Langat v Co-operative Bank of Kenya Ltd (2017), which affirm that courts exist to enforce contracts and should not interfere with them merely because of perceived imperfections or commercial inconvenience. According to the Appellant, refusing to enforce a valid contract without identifying a recognized legal ground for invalidity constituted an error of law. 1. In conclusion, the Appellant maintained that the trial magistrate fundamentally misdirected herself in law by conflating consideration with certainty of contractual terms, introducing legal requirements unknown to contract law, misapplying statutory procurement provisions, and extending judicial precedent beyond its proper scope. The Appellant therefore prayed that the appeal be allowed, the judgment of the Small Claims Court be set aside in its entirety, judgment be entered in favour of the Appellant as sought in the Statement of Claim, and the cost of both the appeal and the proceedings in the lower court be awarded. **Respondent’s Submissions** 1. The Respondent framed the first issue for determination as whether the contract was voidable for lack of consideration. The Respondents submitted that the learned trial magistrate correctly held that the contract dated 24th June 2022 was voidable for want of consideration, having properly directed herself on both the facts and the law. The Respondents argued that consideration is not merely the inclusion of a monetary figure in an agreement but the legally recognizable benefit, obligation, act, or promise exchanged between the parties that forms the basis of an enforceable contract. The learned magistrate therefore correctly examined what the Respondents were to receive in exchange for the payment of Kshs. 1,400,000/=. 2. According to the Respondents, although the agreement stated that the Appellant would undertake "capacity building" in Kobura Ward, it failed to specify the nature of the training, the consultancy services to be rendered, or the expected deliverables. Consequently, the learned magistrate correctly found that the consideration was uncertain and incapable of ascertainment. Relying on ***Currie v Misa (1875) LR 10 Ex 153,*** the Respondents submitted that consideration consists of a right, interest, profit or benefit accruing to one party, or a forbearance, detriment, loss or responsibility undertaken by the other. They further argued that the issue before the trial court was not whether the agreement stated a monetary sum, but whether the parties' obligations and reciprocal benefits were sufficiently identifiable and enforceable. The learned magistrate correctly answered this question in the negative. 3. Further, the Respondents submitted that it is settled law that a contract is enforceable only where its essential terms are certain and ascertainable. In ***Ibrahim v Muhsin & 3 Others (Civil Suit 51 of 2021) [2023] KEHC 27592 (KLR)****, the* court held that an agreement is not binding unless it demonstrates an intention to create legal relations, an intention to enter into contractual relations, and valid consideration. The court further held that all essential contractual terms, including the subject matter, must be certain and that there must be positive evidence of the contractual obligation arising from the oral or written agreement. Similarly, in ***Operative Bank of Kenya Ltd*** ***[2017] KECA 152 (KLR*)**, the Court of Appeal reaffirmed that courts cannot enforce contractual obligations whose scope is incapable of determination, emphasizing that courts do not rewrite contracts but enforce only the terms agreed upon and proved by the parties, together with any implied terms. 1. The Respondents therefore maintained that the trial court was unable to ascertain the consideration the Respondents were to receive in exchange for the contractual sum, since the essential obligations remained indeterminate. They further submitted that the learned magistrate correctly appreciated that public procurement obligations involving the expenditure of public funds cannot lawfully be discharged on the basis of vague, indefinite, and unascertainable obligations. 2. Lastly, the Respondents argued that Article 201(d) of the Constitution requires public money to be used prudently and responsibly, while the Public Procurement and Asset Disposal Act demand accountability, transparency and certainty in public contracting. The learned magistrate therefore properly exercised judicial caution by declining to enforce an uncertain agreement incapable of objective evaluation. 3. The second issue was whether there was certainty of terms and meeting of minds between parties. The Respondent submitted that the trial magistrate correctly found that the alleged agreement was incapable of enforcement, having properly applied the law on certainty of contractual terms and consensus ad idem. They argued that, contrary to the Appellant's assertion, there was no valid contract or meeting of minds between the parties. 4. The Respondent further submitted that a legally enforceable contract requires not only a signed document but also certainty of the essential terms and consensus ad idem, being a meeting of minds on the obligations assumed by each party. Accordingly, the mere existence of a signed document does not establish an enforceable contract where the essential obligations are uncertain, vague, or incapable of ascertainment. 5. The Respondents maintained that certainty of terms is fundamental because a court cannot enforce obligations whose content and scope cannot be objectively determined. They contended that the Appellant's claim that there was a meeting of minds was unsupported by the evidence on record. In support of this position, reliance was placed on *Kitololo Consultants Limited v East Africa Portland Cement Company Limited & Another [2026] KENHC 5311 (KLR)*, where the court held that the existence of a contract depends on whether the party’s reached agreement on all essential terms and intended to create legal relations, emphasizing that certainty and mutuality of obligations are indispensable ingredients of an enforceable contract. 6. The Respondents further submitted that the evidence before the trial court demonstrated the absence of a meeting of minds. They argued that the Appellant failed to produce valid terms of reference, implementation schedules, completion documents, evidence of supervision, or documentation demonstrating agreed deliverables, thereby reinforcing the absence of certainty and mutual understanding between the parties. 1. Finally, the Respondents reiterated that, in public procurement contracts, certainty of obligations is even more critical because public funds cannot lawfully be disbursed on the basis of vague or indeterminate obligations. 2. The third issue was whether the learned magistrate misapplied procurement law and contract interpretation principles. The Respondents submitted that the learned magistrate correctly applied the law by finding that an enforceable contract required certainty of terms, identifiable obligations, lawful consideration, mutuality of obligations, and proof of performance where enforcement was sought. 3. The Respondent further submitted that the mere signing of a document did not automatically render an agreement enforceable where essential contractual elements were absent or uncertain. The learned magistrate correctly interrogated the agreement, found that it lacked certainty and enforceability, and therefore could not be faulted for concluding that it lacked sufficient certainty and mutuality of obligations. Where obligations and reciprocal benefits were uncertain, the alleged consideration was incapable of enforcement. 4. In response to the Appellant's contention that the learned magistrate misapplied section 134 of the Public Procurement and Asset Disposal Act by imposing contractual responsibility upon the Appellant, the Respondents submitted that the argument misconstrued both the judgment and the applicable law. They contended that the learned magistrate correctly appreciated that section 134 placed responsibility for the preparation of procurement contracts upon the accounting officer. However, the Respondents argued that the court did not thereby shift statutory responsibility to the Appellant. Rather, the learned magistrate correctly observed that parties contracting with public entities equally bore responsibility for ensuring compliance with procurement and contractual requirements before seeking enforcement against public bodies. ### Relying on Centurion Engineers & Builders Ltd v Kenya Bureau of ***Standards [2016] eKLR****,* the Respondents submitted that public policy required all parties to public procurement contracts to comply with the Constitution, the Public Procurement and Asset Disposal Act, and its regulations. A contractor could not rely on a procuring entity's failure to comply with the law as a basis for enforcing an unlawful contract. Similarly, where unlawful variations were made to public contracts, both the procuring entity and the contractor participated in the wrongdoing, and the contractor was required to insist on compliance with the law and refuse to undertake extra works that did not comply with the statutory procurement framework. 1. The Respondent further submitted that public procurement contracts were not ordinary private transactions but were governed by constitutional principles of accountability, transparency, and prudent use of public resources. Accordingly, the learned magistrate properly exercised caution in evaluating the claim against a public entity. 2. The Respondent therefore submitted that the learned magistrate could not be faulted for declining to authorize payment of public funds where performance and contractual obligations had not been satisfactorily proved. They further argued that the Appellant's contention that the court should simply have enforced the signed contract ignored the constitutional obligations imposed upon courts in matters involving public resources. 3. The fourth issue was whether the learned trial magistrate misapplied a binding authority. The Respondents submitted that the trial magistrate properly applied *Royal Media Services v Independent Electoral & Boundaries Commission & 3 others [2019] KESC 8239 (KLR),* which holds that parties contracting with public entities are not exempt from statutory procurement requirements merely because the public body prepared the contract. They argued that contractors bear a corresponding duty to comply with procurement and contractual requirements and cannot rely on internal failures of the procuring entity to enforce a contract. Accordingly, the trial court correctly found that the Appellant could not rely on alleged internal discrepancies without proving its own compliance with the applicable contractual and statutory framework. 4. In addition, the Respondents argued that the application was entirely proper and that the Appellant’s complaint appeared to have stemmed from the fact the entire contractual responsibility to the Respondents merely because they had drafted the procurement contract. Rather, the magistrate appreciated that, having voluntarily executed the contract, the Appellant bore the responsibility of demonstrating compliance. The authority was therefore considered within the broader context of certainty of contractual obligations, proof of performance and prudent use of public resources. 1. The Respondents further argued that the trial court's findings were independently supported by the Appellant's failure to prove execution of the works, discharge the burden of proof, and establish certainty as to the scope of work, and that the doctrine of contra proferentem could not cure non-compliance with statutory procurement obligations. Consequently, *Royal Media Services* authority was only one aspect of the court's reasoning, and the magistrate correctly applied the principle that a contractor cannot rely on deficiencies within a public entity while failing to prove its own compliance, performance and entitlement under the contract. 2. The Respondent’s final issue for determination was whether the learned trial magistrate declined to enforce a valid contract. The Respondents submitted that the trial magistrate did not unlawfully refuse to enforce a valid contract but properly interrogated the enforceability of the alleged agreement in accordance with the general principles of contract law, public procurement law, the applicable evidentiary requirements, and the constitutional principles governing the use of public funds. It was argued that the law is settled that not every signed document automatically constitutes an enforceable contract. Reliance was placed on *Ibrahim v Muhsin & 3 others (Civil Suit 51 of 2021)* *[2023] KEHC 27592 (KLR),* **where the court held that a contract whose** essential terms are uncertain or incomplete is incapable of enforcement. 1. The Respondents argued that the trial court did not invalidate the contract merely because it was challenged by them, but because the court evaluated the evidence and found that the alleged agreement lacked sufficient certainty regarding its scope of work and deliverables. Consequently, the Appellant failed to establish an enforceable contractual claim capable of attracting judicial enforcement. 2. Conclusively, the Respondents maintained that the trial magistrate properly evaluated the pleadings, evidence, and applicable legal principles in declining to enforce the alleged agreement and that the Appellant failed to prove any error of law, misdirection, misapplication of principle or wrongful exercise of judicial discretion warranting interference by this court. 3. The Respondents therefore prayed that the Appeal be dismissed in its entirety; Judgment delivered on 6 th March, 2026 in Kisumu SCCCOMM/E5205/2025 be upheld; and that costs of the Appeal be awarded to the Respondents. 4. In the circumstances, I have considered the submissions from both the Appellant and the Respondents and I therefore wish to have the following as issues for determination; # ISSUES FOR DETERMINATION 1. Whether the learned trial magistrate erred in finding that the contract dated 24th June 2022 was unenforceable for want of consideration and uncertainty of its essential terms, including whether there was a meeting of minds between the parties. 2. Whether the learned trial magistrate misapplied the principles of contract law, public procurement law, and contractual interpretation in declining to enforce the contract. 3. Whether the learned trial magistrate misapplied the applicable judicial authorities, particularly *Royal Media Services Ltd v Independent Electoral & Boundaries Commission & 3 Others* [2019], in determining the enforceability of the contract. 4. Whether the learned trial magistrate erred in dismissing the Appellant's claim and, consequently, whether the Appellant is entitled to the reliefs sought in this appeal. # ANALYSIS AND DETERMINATION 1. **Whether the learned trial magistrate erred in finding that the contract dated 24th June 2022 was unenforceable for want of consideration and uncertainty of its essential terms, including whether there was a meeting of minds between the parties.** ## 1. Consideration is one of the essential ingredients of a valid and enforceable contract. The classical definition was stated in Currie v Misa (1875) LR 10 Ex 153, where consideration was described as some right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss or responsibility undertaken by the other. The principle has consistently been applied by Kenyan courts, which have emphasized that consideration need not be adequate provided it is sufficient in law. Thus, courts do not ordinarily concern themselves with the commercial wisdom or adequacy of the bargain but with whether there existed a lawful exchange of promises capable of supporting contractual obligations. 2. Similarly, in Kenya Airways Limited v Satwant Singh Flora [2013] eKLR, the Court of Appeal reaffirmed that courts are not concerned with the adequacy of consideration but with its legal sufficiency. Likewise, in Chappell & Co Ltd v Nestle Co Ltd [1960] AC 87, it was held that consideration need only possess some value recognized by law and need not be economically equivalent to the promise received. 3. The Appellant submitted that the learned trial magistrate conflated the doctrine of consideration with certainty of contractual terms by finding that the absence of detailed deliverables meant that there was no consideration. According to the Appellant, the reciprocal promises were evident from the agreement itself: the Appellant undertook to provide capacity building services while the Respondents undertook to pay Kshs.1,400,000/=. It was therefore argued that the learned magistrate applied an incorrect legal test by treating the level of detail in the scope of work as determinative of whether consideration existed. 4. The Respondents, however, contended that the issue before the trial court was not merely whether a contract sum was stated but whether the reciprocal obligations were sufficiently identifiable to constitute legally enforceable consideration. They argued that the contract failed to specify the consultancy services, expected deliverables, implementation framework or measurable obligations, thereby rendering the alleged consideration uncertain and incapable of objective ascertainment. 1. This court agrees that the doctrines of consideration and certainty are conceptually distinct. Whereas consideration concerns the existence of a bargain supported by reciprocal promises, certainty concerns whether the obligations undertaken are sufficiently definite to permit judicial enforcement. A contract may therefore contain consideration but nevertheless fail for uncertainty if the court cannot objectively ascertain the parties' respective obligations. 2. The question, therefore, is whether the learned trial magistrate treated these two doctrines interchangeably or whether the finding was ultimately directed at the uncertainty of the contractual obligations. 3. Upon re-evaluating the agreement forming part of the record, it is apparent that although the contract identified the consultancy as "capacity building for Kobura Ward Youth Digital Literacy Program" and stipulated the contract sum of Kshs.1,400,000/=, the learned trial magistrate found that it did not sufficiently identify the nature of the services to be rendered, the deliverables expected, the implementation schedule or any objective criteria against which performance could be measured. The trial court further found that the Appellant had failed to prove actual execution of the alleged consultancy services. 4. In this court's view, while the learned trial magistrate's reference to want of consideration may not have been technically precise, the substance of the finding was directed at the uncertainty of the parties' obligations rather than the complete absence of consideration. The agreement disclosed reciprocal promises capable of constituting consideration in the classical contractual sense. However, the uncertainty surrounding the content and scope of those promises inevitably affected the enforceability of the agreement because the court could not objectively determine whether the obligations had been performed so as to justify payment of public funds. 5. The Appellant further argued that execution of the agreement established consensus ad idem. While a duly executed contract ordinarily raises a presumption that parties intended to create legal relations, that presumption does not relieve a claimant of the burden of proving the obligations allegedly performed where enforcement is sought. Consensus ad idem extends beyond signatures; it requires agreement on the essential terms of the bargain. Where those essential obligations remain incapable of objective ascertainment, a court may legitimately decline enforcement, particularly where public expenditure is involved. 1. Accordingly, although this court is not persuaded that the contract was devoid of consideration in the strict legal sense, I am satisfied that the learned trial magistrate cannot be faulted for concluding that the uncertainty surrounding the essential obligations, coupled with the Appellant's failure to prove performance, rendered the alleged contractual claim incapable of enforcement. ## Whether the learned trial magistrate misapplied the principles of contract law, public procurement law, and contractual interpretation in declining to enforce the contract. 1. The Appellant contended that the learned trial magistrate misapplied the principles of contract law by declining to enforce a duly executed written agreement despite there being no finding that the contract was illegal, void ab initio, or vitiated by fraud, misrepresentation or mistake. It was further submitted that the trial court improperly shifted responsibility for deficiencies in the procurement contract to the Appellant notwithstanding that Section 134 of the Public Procurement and Asset Disposal Act, 2015 places responsibility for preparation of procurement contracts upon the accounting officer of the procuring entity. The Appellant further argued that, having acknowledged that the Respondents drafted the agreement, the learned trial magistrate ought to have applied the doctrine of *contra proferentem* by construing any ambiguity against the Respondents rather than against the Appellant. 2. The Respondents, on the other hand, maintained that the learned trial magistrate did not decline to enforce the agreement merely because it contained deficiencies, but because the Appellant failed to establish the existence of an enforceable contractual obligation, proof of performance and compliance with the constitutional and statutory framework governing public procurement. According to the Respondents, although Section 134 assigns responsibility for preparation of procurement contracts to the accounting officer, contractors dealing with public entities equally bear a duty to ensure compliance with procurement law before seeking enforcement of contracts involving public funds. 1. The law is settled that courts do not rewrite contracts for parties. Their duty is to interpret and enforce contracts according to the intentions expressed by the parties, provided those agreements satisfy the legal requirements for enforceability. In ***National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another [2001] eKLR,*** the Court of Appeal held that a court of law cannot rewrite a contract between parties and is bound to give effect to the terms voluntarily agreed upon unless coercion, fraud or undue influence is pleaded and proved. Likewise, in ***Pius Kimaiyo*** ***Langat v Co-operative Bank of Kenya Ltd* [2017]** eKLR, the Court of Appeal reaffirmed that parties are ordinarily bound by the terms of their contracts, and courts should not interfere with freely negotiated agreements merely because one party later considers the bargain unfavorable. 1. However, the principle that courts enforce contracts as executed presupposes the existence of an enforceable agreement whose essential obligations are capable of ascertainment. Enforcement is not automatic merely because parties appended their signatures to a document. The court must still be satisfied that the agreement discloses sufficiently certain obligations capable of objective enforcement. 2. The Appellant further relied on the doctrine of *contra proferentem*. That doctrine requires ambiguity in contractual language to be construed against the party responsible for drafting the document. However, it is a rule of interpretation rather than one of contract formation. It cannot be invoked to create contractual obligations where none exist, nor can it supply essential terms omitted by the parties. Its application is limited to resolving ambiguity in otherwise enforceable contractual provisions. 3. Turning to the procurement framework, Article 201 of the Constitution establishes the guiding principles governing public finance, including accountability, openness and prudent use of public resources. These constitutional principles are reinforced by the Public Procurement and Asset Disposal Act, whose objective is to ensure transparency, fairness and accountability in the expenditure of public funds. While Section 134 places responsibility for preparation of procurement contracts upon the accounting officer, the statutory framework does not exempt contractors from demonstrating compliance with procurement requirements or proving entitlement before public funds may be disbursed. 1. Having re-evaluated the record, this court is not persuaded that the learned trial magistrate misapplied either contract law or procurement law. The impugned judgment did not hold that the Appellant bore statutory responsibility for drafting the procurement contract. Rather, the learned magistrate considered whether the Appellant had established, on a balance of probabilities, the contractual obligations allegedly performed and whether payment of public funds could lawfully be ordered in the absence of certainty regarding those obligations. 2. Similarly, the doctrine of *contra proferentem* could not cure the absence of clearly ascertainable contractual obligations or substitute proof of performance. The learned trial magistrate therefore correctly balanced the ordinary principles of contract law with the constitutional duty to safeguard public resources before declining to enforce the agreement. I therefore find no misdirection in the learned magistrate's application of contract law, procurement law or contractual interpretation. 3. **Whether the learned trial magistrate misapplied the applicable judicial authorities, particularly *Royal Media Services Ltd v Independent Electoral & Boundaries Commission & 3 Others* [2019], in determining the enforceability of the contract.** 4. The Appellant submitted that the learned trial magistrate improperly relied upon *Royal Media Services Ltd v Independent Electoral & Boundaries Commission & 3 Others* [2019] eKLR by extending its ratio decidendi beyond its proper context. According to the Appellant, the decision addressed constitutional and statutory compliance in public procurement and did not establish that a concluded consultancy contract became unenforceable merely because its scope of work lacked specificity. It was further argued that the learned magistrate erroneously relied upon provisions of the repealed Public Procurement and Disposal Act instead of the Public Procurement and Asset Disposal Act, 2015. 1. The Respondents submitted that the learned trial magistrate correctly appreciated the principle established in *Royal Media Services*, namely that parties dealing with public entities are equally bound by the constitutional and statutory procurement framework and cannot rely upon internal failures of the procuring entity as a basis for enforcing contractual claims. They further argued that the authority was only one aspect of the trial court's reasoning, which was independently supported by the Appellant's failure to prove performance and establish certainty of contractual obligations. 2. The doctrine of precedent requires courts to apply previous decisions according to the legal principles actually determined in those cases. A judicial authority must therefore be understood within its factual and legal context, and its ratio decidendi should neither be expanded nor restricted beyond the issues actually decided. 3. Upon considering the reasoning adopted by the learned trial magistrate, this court is unable to agree with the Appellant that the authority in *Royal Media Services* was misapplied. The trial court did not rely upon that decision to hold that lack of specificity alone rendered the contract void. Rather, the authority was cited in support of the broader proposition that parties contracting with public entities remain subject to the constitutional and statutory framework governing procurement and expenditure of public funds. 4. That principle remains consistent with Article 201 of the Constitution and the provisions of the Public Procurement and Asset Disposal Act. Public procurement contracts cannot be divorced from the statutory framework governing accountability and prudent expenditure merely because a written agreement exists. 5. Moreover, the learned trial magistrate's decision was not founded exclusively upon *Royal Media Services*. The judgment also rested upon findings that the contractual obligations lacked sufficient certainty and that the Appellant had failed to prove execution of the consultancy services. Those findings were reached independently of the cited authority and provided separate legal grounds upon which the claim could properly be dismissed. 1. Consequently, I find that the learned trial magistrate properly appreciated the legal principle established in *Royal Media Services* and did not impermissibly extend its ratio decidendi beyond the circumstances of the present dispute. ## Whether the learned trial magistrate erred in dismissing the Appellant's claim and, consequently, whether the Appellant is entitled to the reliefs sought in this appeal. 1. The duty of a first appellate court is to reconsider and re-evaluate the entire evidence on record and draw its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify. However, an appellate court will not interfere with the findings of a trial court unless it is demonstrated that the court acted on wrong principles of law, misapprehended the evidence, failed to consider relevant matters or reached conclusions unsupported by the evidence. 2. The burden of proving a contractual claim rest upon the claimant. Pursuant to Sections 107 and 109 of the Evidence Act, he who alleges must prove. Accordingly, where payment under a contract is sought, the claimant bears the burden of establishing the existence of an enforceable contract, the obligations undertaken thereunder, performance of those obligations and the corresponding entitlement to payment. 3. The Appellant argued that the trial court ought to have enforced the agreement because it was duly executed and there was no finding that it was illegal or void. The Respondents maintained that the Appellant failed to discharge the evidentiary burden of proving both the certainty of the contractual obligations and actual performance of the alleged consultancy services. 4. Having independently reviewed the record, I am satisfied that the learned trial magistrate correctly identified the issues requiring determination and properly evaluated the evidence before concluding that the Appellant had failed to prove its claim on a balance of probabilities. As already found under the preceding issues, the uncertainty surrounding the contractual obligations, coupled with the failure to establish performance, rendered the claim incapable of judicial enforcement, particularly in light of the constitutional principles governing the expenditure of public funds. 1. An appellate court ought not interfere merely because it might have reached a different conclusion on the same evidence. Intervention is only warranted where the trial court is shown to have misdirected itself in law or fact. In the present appeal, no such error has been demonstrated. 2. Accordingly, I find that the learned trial magistrate properly dismissed the Appellant's claim. The Appellant has failed to establish any error of law or fact warranting interference with the judgment of the Small Claims Court. It follows that the appeal is devoid of merit, and the Appellant is consequently not entitled to the reliefs sought in this appeal. # DISPOSITION 1. Having carefully considered the Pleadings, the Record of Appeal, the Judgment of the Small Claims Court, the rival Submissions by Counsels, together with the applicable law and the authorities cited, this court now proceeds to render its determination on the issues arising for resolution in this appeal as follows: 1. The Appeal is hereby dismissed in its entirety. 2. The Judgment and Decree of the Small Claims Court in Kisumu SCCCOMM/E5205/2025 delivered on 6th March 2026, are hereby upheld. 3. The Respondents shall have the costs of this Appeal. 4. Interest on the costs of the Appeal shall accrue at court rates from the date of taxation until payment in full. It is so ordered. SIGNED BY/FOR: **□ TH E JUDICIAR Y O F KENY A ★** **HON. JUSTICE ABDI M. HASSAN** Kisumu High Court High Court Civil Date: 2026-07-23 19:45:59