https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6210

Ethics & Anti-Corruption Commission v Amailo Investment Company Ltd & 7 others (Anti-Corruption and Economic Crimes Civil Suit E025 of 2022) [2026] KEHC 6210 (KLR) (Anti-Corruption and Economic Crimes) (8 May 2026) (Judgment) Neutral citation: [2026] KEHC 6210 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Anti-Corruption and Economic Crimes Anti-Corruption and Economic Crimes Civil Suit E025 of 2022 BM Musyoki, J May 8, 2026 Between Ethics & Anti-Corruption Commission Plaintiff and Amailo Investment Company Ltd 1st Defendant Mathew Kipchumba Kipkemei 2nd Defendant Grace Murei 3rd Defendant Samuel Eregae 4th Defendant James Arono Chegem 5th Defendant Esthaer Lokai Elim 6th Defendant Elim Peter Epagan 7th Defendant Peter Ekorot Endapal 8th Defendant Judgment 1.The plaintiff has brought this suit pursuant to its mandate under Section 11(1)(j) of the Anti-Corruption and Economic Crimes Act (ACECA). It seeks to recover Kshs 24,999,600.00 from the defendants which it claims was paid to the 1st defendant by the County Government of Turkana (hereinafter referred to as ‘the government’) for supply of corn soya blend-Unimix for ECD schools (hereinafter referred to as ‘the food’) which was never supplied. According to the amened plaint dated 24-02-2023, each of the defendants was accused of playing a role in the process from procurement to payments. The plaintiff called 13 witnesses while the defendants called a total of 14 witnesses. The plaintiff’s case 2.PW1 was Jacob Lolelea Natade who told court that he previously worked as Chief Officer of the government from 22/2/2018 to 2022. His first assignment was Chief Officer of the Ministry of Water Services, Environment and Mineral Resources until August 2019 when he was transferred to the Ministry of Education, Sports and Youth Protection where he worked until 25/2/2020. 3.He stated that a procurement officer one Henry Epkon brought a requisition for supply of 6,250 corn soya beans (hereinafter referred to as ‘the food’) worth Kshs 27,000,000/=. Each bag was of 25 kgs, estimated at 4000/=. Before he signed, he checked and established that the items in the procurement plan for 2019/2020. He further stated that he also checked and confirmed that the amount was allocated at an estimated amount of Kshs 137,682,674.00 in the budget for 2019/2020. He produced the budget and the procurement plan as exhibits. He added that he signed the requisition after he established that it had been signed by all the other officers. 4.The witness added that all the procurement procedures were followed including advertisement in Standard Newspaper of 2/01/2020. He identified the tender as number TCG/ESSP/OP/EVA/05/2020 which was properly posted in the IFMIS. Upon closure of the tender, he appointed tender opening and evaluation committees whose duty was to open and check the bidders and the scores. He stated that the chairman of the committee was the 4th defendant. He further stated that after appointing the committee, he did not take any further action because he was transferred and handed over to the incoming Chief Officer Mrs. Pauline Ekai Lokuruka. 5.In cross-examination, he said that he was the accounting officer on the material period. He confirmed that there was a process before the committee was appointed and that he had done the procurement plan. He also confirmed that the budget had been approved by the County Assembly and procedures were done in conformity with Public Procurement Regulations. He stated that he did not play any other role after his appointment and that he was not aware of the outcome of the evaluation by the committees. He added that, he knew the 3rd defendant as an officer in the government and that he did not know of any tender irregularities which made the 4th defendant be brought to court. He added that if the food was not delivered, there would be risk of children not attending school and enrolment would reduce retention and learning will not take place. 6.The second witness was Pauline Lokuruka who stated that she served as a Chief Officer in the ministry of Education, Sports and Social Protection from 25th February 2020 to January 2023. When she took over, one of her tasks was signing of professional report dated 5-03-2020 from Director of Supply Management in regard to sourcing of the food from the 1st defendant. The report recommended that the 1st defendant who had won the tender be awarded the contract. She produced the report as an exhibit in the case. 7.PW2 added that by a letter dated 10-03-2020, the 1st defendant accepted the tender to supply and a contract to that effect was entered into for the period between 23/3/2020 to 1/4/2021. Supply was to be done upon request. After signing of the contract, the 1st defendant delivered to the government four times, with the first delivery being between 23/3/2020 to 1/4/2020. 8.The witness testified that she appointed an inspection and acceptance committee comprised of Samuel Eregae (Chair), Peter Lobali (member), Carlpeters Lodunga (secretary), Omakada Kampala (member), James Chegem (member) and Dedan Korikel (member) and that she confirmed the delivery. The committee prepared all necessary documents and she signed off the of payment of 25,537,500/= on 21-04-2020. 9.PW2 added that they made another request on 26-10-2020 for 6,500 bags worth Kshs 29,260,000/= which was delivered between 16/1/2021 and 22/1/2021 in presence of 2nd and 5th defendants. She appointed a committee made of 4th, 5th and 3rd defendants on 14/1/2021. The committee brought a certificate of inspection and acceptance and the witness physically confirmed the delivery and then signed payment voucher on 5/5/2021 for Ksh. 26,975,000/=. 10.The witness added that there was another request on 16/3/2021 for supply of 6,024 bags at a price of 4,500/= per bag with total cost of 27,108,000/=. The requisition was raised by the user department and signed by Ernest Ekai (a supply chain assistant), 3rd defendant, 4th defendant and Robert Lotaruk (senior procurement officer). She testified further that since the contract was about to lapse, they had to write to the County Attorney to give extension, which extension was given and an addendum to the agreement signed. 11.She again appointed inspection and acceptance committee for this delivery on 24/5/2021 with 3rd, 4th and 5th defendants as members. She received all the documents from the inspection and acceptance committee including a certificate dated 24/5/2021 signed by the said three defendants. She further testified that she also received the list of full inspection report on 24/5/2021 which confirmed the motor vehicles which delivered the food and a certificate confirming that the food was found good for human consumption. 12.In addition, she received delivery notes for the supply as follows:a.Number 0130 dated 17/5/2024 for 1,960 bags delivered by KCY 884Z and signed by Yohana and James Chegem.b.Number 0140 dated 17/5/2021 for 1,165 bags with motor vehicle as KCJ 795J and signed by the same people who signed number 0130.c.Number 0141 dated 20/5/2021 for 1165 bags with motor vehicle KCU 332W also signed by Yohana and James Chegem.d.Number 0142 showing 1,160 bags delivered by motor vehicle KBQ 177H. It was also signed by Yohana and James Chegem.e.Number 0143 dated 24/5/2021 with quantity of 687 bags delivered by motor vehicle KCC 402G signed by Yohana and James Chegem.f.Number 0144 dated 4/5/2021 for 687 bags showing motor vehicle KBR 881P signed by Yohana and James. 13.She claimed that this time round, she did not physically and personally confirm delivery. After receiving the documents, she signed payment voucher for Kshs 24,999,600/= on 15/6/2021. The voucher was supported by the delivery notes, inspection report and counter receipts. She went on to point these documents which are indicated to have been signed by Yohana Lokoyo and the 3rd defendant. She added that there was a purchase order signed by the procurement officer and AIE holder for 6,024 bags at a price of Kshs 4,950.00 per bag totaling to Kshs 24,999,600/=. She confirmed that the above purchases were in the procurement plan and the approved budget for the financial year. 14.When she was placed on cross-examination, PW2 confirmed that she left the government in January 2022 and denied that she was guided in writing the statement. She claimed that she signed the agreement and professional opinion because they were on her desk as part of her job. She also confirmed that the most responsive company on both technical and financial bits was the 1st defendant. She claimed not to be aware of any irregularity on the tender or any dispute on the award. 15.She restated that she personally confirmed the first and second deliveries and that she relied on the report of the committees to approve the payment voucher. She alleged that she did not confirm the 3rd delivery because the inspection and acceptance committee composed of senior officers who she did not appoint and she was away on other official duties. She however had no reservations on their work. She added that for the three occasions the 1st defendant did a very good job. She further stated that she was shown the logbooks of motor vehicles which delivered the food when she went to the EACC offices. 16.The witness claimed that there was a complaint from the County Assembly about the supply but it was not in writing. She also stated that there was an audit which flagged out this matter but the audit she got was for 2018/019. She stated further that once the food was delivered, it was supposed to leave for schools immediately and when she signed the payment voucher, the food should have gone to school. She added that there was a possibility that the food was delivered by motor vehicles belonging to other persons. 17.Philemon Poltoi Lowoi was the 3rd witness who was a registration officer at National Transport and Safety Authority. He told the court that on 28/9/2021, EACC officers sent a letter requesting for copies of records for motor vehicles registration numbers KCB 577A, KBU 890K, KAT 206Q, KBU 503J, KCV 526M, KCS 642S, KCC 402G, KCJ 955J, KBR 881P, KCU 332W, KBQ 177H, KCY 884Z and KCJ 795J. There was also a request for details of ownership of vehicles related to KRA numbers A0xxxxxxxx5, A0xxxxxxxxT, A0xxxxxxxxR, A0xxxxxxxx5 and P0xxxxxxxxE. He provided details as follows;1.KCY 884Z was a Mercedez Benz was owned by Joseph Kariuki Mwaura.2.KBQ 177H a Mercedez Benz, a prime mover was owned by Sanrol Ventures Ltd.3.KCU 322U a Mercedes Benz lorry/truck was owned by Eric Wahome Maina and Gulf Africa Ltd.4.KCJ 795J, a Mazda Demio Station Wagon was owned by Vicky Patricia Nkatha Mugambi.5.KCJ 955J a Mercedes Benz prime mover was owned by Eric Wahome Maina.6.KCU 332W, a Toyota probox was registered to Sostem Kiplagat Tui7.KCC 402G, a Mercedes Benz prime mover was owned by James Wambugu Kuria and financed by Endeavour Credit Ltd.8.KBR 881P, a Mercedes Benz prime mover registered to John Mwangi Kariuki.9.KCJ 183J, KBZ 823V and KCY 431N were registered to Amailo Investment company. 18.The witness added that a vehicle’s number plate can be removed but they do not allow swapping number plates unless it is through the necessary agencies and that there is a procedure for having two number plates for one vehicle but it is not allowed for civilians. 19.On cross-examination, that it is not legal to move one number plate from one vehicle to another but there are situations where they issue two number plates for one vehicle mostly for security reasons which is rare and applies in people working for government in certain levels. He however agreed that there were instances of fake number plates which is illegal. 20.Caroline Mwita working as an assistant engineer with Kenya National Highways Authority was the fourth witness who told the court that they received request from EACC regarding location of some motor vehicles on specific dates. From their system;a.KCY 884Z was captured on 15/5/2021 at Webuye Weighbridge station Malaba and on 16/5/2021 it was captured in Eldoret virtual weighbridge station.b.KCJ 795J was not captured in the period of 14th to 17th May 2021.c.KCJ 955J was captured on 14/5/2021 at Ahero virtual station.d.KBQ 177H was not captured.e.KCU 332W was also not captured between 17th to 20th May 2021.f.KCC 402G had tickets for the period 20th to 24th May 2021 which was not the period of interest. 21.She added that they have both stationary weigh bridges manned by people and virtual stations and every vehicle passing through the bridges is captured and information relayed to their central system in real time. Some stationary stations are supported by high sensors and if the vehicle is not sensed to be overloaded, they don’t get into the stationary weigh bride. She further stated that permissible weight of truck differs with axle and gross weight limit. The witness added that it is not possible for vehicle to go from Muranga to Lodwar without being captured in a weighbridge. 22.In cross-examination, the witness told the court that it was possible for one to go to Lodwar from Muranga and avoid the weighbridges. She further stated that it is a criminal offence for a vehicle above 25 tons to evade a weighbridge and admitted that there are cases where vehicles are arrested for evading weighbridges. She was not aware that there are people who evade weighbridge and are not arrested or charged. 23.The fifth witness, a businessman known as Josephat Kariuki Mwaura, told the court that he owned a super market and transport business. He stated that he received a call from an officer in EACC’s Eldoret offices because his truck registration number KCY 884Z was involved in investigations. He added that he was the one who gives all consents on operation of the business and that his driver was one Karanja Ndung’u and he did not know Simon Waweru. 24.The witness stated further that, he first heard of the 1st defendant when he visited EACC’s offices where he was told that it had claimed that it contracted him to transport cargo to Turkana County. He was categorical that whenever he is contracted, he was paid through Mpesa or bank account and never in cash. He averred that it is not possible for his truck to be contracted without his knowledge. He had a tracker which monitors all his trucks wherever they are. 25.The witness testified that his truck was on 16/5/2021 dispatched in the morning to go to Eldoret to pick a fertilizer cargo destined to a company in Uganda. The truck was loaded on 17/5/2021 and released from the factory on 18/5/2021. It came back from Uganda on 25/5/2021. It used Ngara - Eldoret - Webuye - Malaba - Uganda route. 26.When he was cross-examined, PW5 stated that he knew the movements of all his trucks through a tracking device but he did not have tracking logs in court. he added that the truck was on the material being driven by Sammy Kenanga Ndungu who was still working with him. He further testified that his truck was contracted to carry fertilizer from a company called Baraka Fertilizers. The vehicle left for Uganda on 18/5/2021 and he was not aware that Sammy Ndungu knows one Henry Kidiga. 27.He claimed that delivery note bearing motor vehicle registration number KCY 884Z was a forgery and misleading. He admitted that, sometimes weighbridges are off and in such cases motor vehicles can pass without being recorded. His driver was not interviewed or summoned to testify. He added that it is practically impossible to get the vehicle at Malaba then the following morning it is empty and in Lodwar. It is also not possible to have the vehicle from Eldoret to Lodwar and come back the same day. He also stated that his driver has never been involved in what they call “squad” as a big truck is never involved in those squads. 28.PW6 was Caroline Wanjiru Mbugua a business woman in transport business since 2020. She informed the court that she was informed by the EACC that her truck registration number KBQ 177H carried the food from Maragwa to Lodwar and they wanted to confirm whether her truck transported it in May 2021. She denied that saying that, her truck had broken down between January and July 2021 and there was no way it could have left without her knowledge because she had parked it where she lived. 29.She told the court in cross-examination that the vehicle was registered to Sanrol Ventures Ltd in which she was the sole director. She added that she used brokers who would call her when there was business. She further stated that she did one trip for the government and was paid through Mpesa but she was told by the investigating officer that the record showed that she did two trips. She stated that she didn’t have any relationship with the clients as she dealt through brokers. She could not remember the broker who did the business in question with the 1st defendant. She also claimed that she had a tracking device for the truck but investigators did not ask for it. 30.PW7 was one Paul Nyotu Gateru and a driver who testified that he transported food from Equatorial Factory in Muranga to Turkana on 18/1/2021 using motor vehicle registration number KCU 322U owned by Eric Wahome and never did any other transport for the same product. He added that on 20/5/2021 he was transporting stones from Ndarugo near Thika to Kitale. He claimed that no one else has ever driven that vehicle. 31.When put on cross-examination, PW7 told the court that he did not to have documents to prove that he was employed by the owner of the truck and that he was paid per trip and not as a permanent employee. When there was no trip, he would stay in the vehicle. He added that on 18/1/2021, he was called by the owner of the vehicle with instructions to go and receive consignment which was loaded on the same day and left Muranga in the evening. The consignment was 1120 bags. The witness stated that he used Muranga-Kenol-Ruiru By-Bass-Limuru-Mai Mahiu-Nakuru-Eldoret-Kitale-Kapenguria-Turkana route spending one day between Eldoret and Turkana. 32.Francis Esimit Edapal who previously worked with Turkana County Government as a Deputy Director Supply Chain Management Resources from February 2016 to May 2021 was the eighth witness. He told the court that he received requisition from department of education on 31/12/2019 which was procuring 6,250 bags of corn soya porridge of 25 kilograms each valued at Kshs. 27,000,000.00. The requisition had been approved by the Chief Officer. He confirmed that there was budget and procurement plan. The amount in the proposed budget was 158,000,000/- and thereafter Kshs 137,682,664/= in supplementary budget. 33.He went on to give the process the procurement went through which he confirmed to have been lawful and procedural with the final recommendation and award going to the 1st defendant at a cost of Kshs 4,150/- per bag. He testified that he prepared a professional opinion on 6/3/2020 and submitted it to the accounting officer to award. Framework agreement which was valid for one year was finally signed between the government and the 1st defendant on 23/3/2020. He pointed out that the contract did not have a provision for extension and if there was need for extension, the accounting officer would have appointed an evaluation committee to look into the extension. The witness added that the order to supply the food he interacted with was made on 1/3/2020 but he signed it on 23/3/2020. 34.In cross-examination, the witness stated that there was no provision for extension of the framework agreement but there are times when there is need for extension of framework agreement depending on the need of the user in which case, the accounting officer can extend the contract depending on the justification given. He added that the supplier or contractor can also initiate the process of extension. He added that delays and mutual desire by contractors to complete obligations can cause the need for extension which can only work if both parties sign the extension. 35.The witness added that in case of an extension there are no new terms and it must be for a specific period. He added that he was not aware of any addendum to the contract dated 23-03-2020. He was not aware of any complaint that the tender was awarded irregularly or any claim that the 1st defendant influenced the award. He added that he wrote his professional opinion without influence and was not prompted by anyone and he was not aware of any irregularity and up to the level of award, the process was undertaken as per the law. He had no role to play in the delivery. 36.George Gate Kagema, a driver and a business man testified that there was a time he transported 1120 bags of flour of 25 kilograms each from Equatorial Nuts Processors Limited (hereinafter referred to as Equatorial) in Muranga to Lodwar using motor vehicle registration number KCC 402G owned by James Wambugu Kuria. This was 16th January 2021 and he has never been back there. He stated that he worked with the motor vehicle since 2019 until 2024 when it was sold and between that period no other person had driven it and he was the one who kept the key. He denied transporting the food on 24/5/2021 because he was in Tanzania where he had gone to carry cargo at a place called Kahama using the said motor. 37.In cross-examination he confirmed not to have any document to prove the employment neither did he have his driving licence in court. He insisted that he never went back to Turkana after January 2021. 38.Abraham Misoi, a mechanical engineer working with the County Government of Uasin Gishu testified as the 10th witness. He told the court that, he was summoned to the plaintiff’s offices in Eldoret to give technical support in respect of some vehicles. He was shown inspection reports from Ministry of Public Health and Sanitation of the government and copies of records for some motor vehicles which were said to have been used to transport the food supplied by the 1st defendant. 39.He was to establish whether the vehicles which were said to have transported the food had capacity to the carry weight indicated against each. In his opinion, KCJ 795J, a station wagon with a ton weight of 990 kgs could not possibly carry 29 tons to Turkana County. The 1165 bags of 25 kgs each translated to be 29.2 tons and from the technical view, the vehicle could not carry that load due to its engine and load capacity. 40.Motor vehicle KCU 332W which was also a station wagon was a Toyota probox of 1490 cc with ton weight of 1,100 kilograms and load capacity of 525 kilograms. The vehicle could not carry 1165 bags of 25 kilograms each which was equivalent to 29.2 tons because of its load capacity. The capacity of the bags could be transported by a truck with 300 HP and 6000 cc. 41.In cross-examination, the witness stated that based on his experience, he was a mechanical engineer and an expert in mechanical and production engineering. He stated further that the plaintiff’s officers did not come to him directly but to the County Secretary who referred them to him. He based his report on food inspection report and records from NTSA to generate his report and did not physically inspect the motor vehicles. 42.The 11th witness was Joseph Mutisya Makau a food scientist working with Equatorial Nuts Processing Ltd as a sales representative. He told the court that the company did business with the 1st defendant from March 2020 to September 2021. Between that period, the 1st defendant did four orders. The first order was on 4/3/2020 through Mr. Peter Elim for 6,250 bags worth Kshs 13,359,375/-. The order was collected by several trucks sent by the 1st defendant between 21/3/2020 and 31/3/2020. The order was paid in full through bank transfers. 43.The second order for 6,500 bags worth 13,975,000/= came on 30/12/2020. It was collected between 14/1/2021 and 21/1/2021 which was paid in full. It was collected by several trucks sent by the 1st defendant. The 3rd order was placed on 6/4/2021 through LPO S/No. AM0626 via an email. The email came from Peter Elim through [Particulars Withheld]@gmail.com to [Particulars Withheld]@gmail.com and [Particulars Withheld]@equatorialnuts.co.ke. The order was for 2,450 bags worth Kshs 5,267,500/=. Payment was received and the 1st defendant sent trucks registration numbers KCY 323N which was loaded with 90 bags, KCJ 955J loaded with 1200 bags and KCH 207Y loaded with 1160 bags to collect the consignment on 29/5/2021. 44.The witness added that there was a 4th and last order which was made on 18/8/2021 for 6,807 bags worth Kshs 16,336,800.00. It was collected between 8/9/2021 and 22/9/2021. The total collection was 6,810 bags with the extra 3 bags being a form of appreciation for personal use. 45.In cross-examination, he did not have the letter from plaintiff requesting for the documents he had produced in court but insisted that the documents were not with plaintiff illegally although there is nowhere its representative signed for collection of the documents. Similarly, there was no bank statement showing the payments neither was there acknowledgement for the payment in court. 46.Pressed further, PW11 stated that he was personally based in the Nairobi office and he was not there when the consignments were being collected and he could not tell the type of vehicles which collected them. He also could not tell where the consignments were being delivered to as their business ended with the delivery. He added that they are not the only producers of the product and it is not a must that any potential customer buys from them. 47.The plaintiff’s twelfth witness one John Kahiga Mbare working with Equity Bank as operation Manager in Lodwar since January 2022 told the court that the bank received a letter dated 24/8/2021 from the plaintiff and orders in miscellaneous application number E021 of 2021 asking for investigations on account numbers 09xxxxxxxxxx2, 10xxxxxxxxxx2, 09xxxxxxxxxx5 and 05xxxxxxxxxx7 held in their bank. These accounts were held by the 1st defendant, Ekeno Samuel Edapal, the 8th defendant and the 7th defendants respectively. 48.Upon receipt of the orders, they provided account opening documents and statement for provide account opening documents and statements. Account number 09xxxxxxxxxx2 was opened by Elim Peter Epagan and Samuel Ekeno Edagal on 19/3/2013. The two were directors but there was another director known as Esther Lokai Elim. At the point of opening, the mandate was all to sign but as at 24/3/2022 they had Elim Peter Epagan (the 7th defendant) as the sole signatory. 49.The witness added that as at 31/7/2017 the account holders had applied for an online platform called Eazzybiz. The persons who signed for onboarding were Elim Peter and Peter Edapal who were directors. Elim Peter was the one who had initiator/approver rights was. 50.David Kaloki Mutua was the thirteenth and the last witness for the plaintiff. He was the investigating officer in this matter. In addition to repeating what the other witness said and provided to him, he told the court that, the commission received allegations that the 1st defendant which was owned by staff working with the government has been trading with the government contrary to law contrary to the law on conflict of interest. 51.Upon receipt of the complaint, the Commission requested for documents for payments made to the company and filed a miscellaneous application for warrants in respect of bank account held by the company. From the bank account statements supplied by Equity Bank, it was revealed that the company was trading with the government and one of its directors was working with the government. 52.He added that records in the Business Registration Services showed the 1st defendant was incorporated as a private limited liability company on 18/2/2013 under certificate number CPR/2013/94837. At the time of incorporation, it had Elim Peter Epagan with 300 shares as a director and shareholder, Samuel Ekeno Edapal as a director and shareholder with 300 shares, Esther Lokai Elim a shareholder with 200 shares and Ekorot Emmanuel Endapal as shareholder with 200 shares. Later, there were changes of directorship as follows: -a.On 11/4/2019 Samuel Ekono Edapal transferred 300 shares to Peter Elim Epagan.b.On 11/4/2019 Esther Elim transferred 100 shares to Emmanuel Endapal.c.On 12/4/2019, Samuel Ekano Edapal and Esther Lokai Elim resigned as directors.d.On 29/9/2019, Elim Peter resigned as director and forfeited his 700 shares to the company. 53.As at 16/02/2022, the directors and shareholding of the 1st defendant were as follows: -a.Peter Ekorot Endapal the 8th defendant with 200 shares and also a director.b.Rebecca Adorio Ekerot with 300 shares and also a director.c.Ekotot Endapal Magdalene with 250 shares and also a director.d.Ekorot Lomoe Lucy as a director and shareholder with 250 shares. 54.He added that Esther Lokai Elim (6th defendant) is wife to Elim Peter Epagan (the 7th defendant) and also daughter in law to Peter Ekorot Endapal (the 8th defendant). He testified that this information is in a form received from the government where the 6th defendant filled her particulars of next of kin. She also provided evidence of marriage to indicate that she was wife of Elim Peter Epagan. He produced the marriage certificate and the next of kin form as exhibits 48 and 49. 55.Upon investigations the witness established that the 1st defendant participated in a tender to supply the food. It was awarded the contract on 23/3/2020 for one year ending on 30/4/2021. There was an addendum to the agreement prepared on 8/2/2021 and signed between the two parties. Amailo was provided with four LPOs. In the 3rd LPO (number 703), the 1st defendant was to supply 6,024 bags to be delivered at Lodwar the County Headquarters. 56.He added that delivery notes and counter receipts vouchers (hereinafter referred to as ‘form S13) were the proof of supply and the documents given to him by the government indicated that delivery was done between 17/5/2021 and 24/5/2021. From the documents, he enquired on where the purchase was done by 1st defendant and based on what 1st defendant provided as its suppliers, he established it was Equatorial. He proceeded to enquire from Equatorial whether actually the 1st defendant ordered for the food. He stated that he was informed that on 6/4/2021 the 1st defendant ordered for 2,450 bags and established that it collected the food using two trucks and one pick up double cabin on 23/5/2021 indicating that they delivered the same goods in Lodwar which was received by the government. 57.He added that his further investigations established that delivery note number 0139 which was prepared by the 1st defendant purporting to have delivered 1,160 bags of 25 kilograms using a motor vehicle KCY 884Z on 17/5/2021 was fictitious based on the following:a.The owner of the KCY 884Z one Josephat Kariuki Mwaura confirmed that he was not hired by the 1st defendant to transport 1,160 bags between 15th and 24th May 2021.b.Kenya National Highways Authority tickets did not trace the vehicle to Lodwar on the dates in question.c.Form S13 which was prepared by the government staff who purported to have received the goods indicate that it is the said vehicle which delivered the goods but the form S13 indicated that the bags were weighing 50 kilograms against what the 1st defendant had indicted as 25 kilograms. 58.The second delivery purported to have delivered 1,165 bags under delivery note number 0410 dated 17/5/2021 using motor vehicle KCJ 795J. According to the witness, he conducted search on the motor vehicle which showed it as a Mazda, station wagon with tare weight of 990 kilograms following which he invited an engineer from Uasin Gishu County who confirmed that such vehicle could not transport 29,000 kilograms to Lodwar, because its tare weight is 990. Analysis from Kenya National Highway Authority (hereinafter referred to as ‘KENHA’) confirmed that the vehicle was not traced on that route between 15th and 24th May 2021 because it was not a truck. The form S13 for this lot showed that the government had received 1,165 bags weighing 50 kilograms each yet the 1st defendant spoke of 25 kilograms. 59.Delivery note number 0141 dated 20/5/2021 purported that 1,165 bags of 25 kilograms each were delivered by motor vehicle KCU 332W and upon conducting search, the witness established that the vehicle was a Toyota Probox with a tare weight of 1,120 kilograms. The engineer from Uasin Gishu said it was impossible to transport the bags using the said vehicle. Again, KENHA did not capture the vehicle on the route since it is a small vehicle which is not captured by the weighbridge. 60.The next was delivery note number 0142 dated 20/5/2021 which claimed delivery of 1,160 bags of 25 kilograms using motor vehicle KBQ 177H. Details from a search show that the vehicle was a truck owned by Caroline Mbugua but the owner confirmed that she was not hired by the 1st defendant between 15th May 2021 and 24th May 2021 to carry the food as indicated and the said vehicle was grounded during that period. The motor vehicle was also not captured by KENHA during the period in question. The form S13 for this delivery indicated delivery of 50 kilograms bags instead of 25 kilograms which were in delivery note of the 1st defendant. 61.The next was delivery note number 0143 dated 24/5/2021 which purported to have delivered 687 bags of 25 kilograms using motor vehicle registration number KCC 402G. The witness conducted the owner of the vehicle who instructed the driver to record a statement in regard to whether the vehicle was hired on those dates. The driver confirmed that the vehicle was not hired to transport the goods. He also confirmed that it was uneconomical to transport 687 bags to Lodwar since they are paid on tonnage. Again, the delivery note had form S13 which indicated that the said vehicle delivered 687 bags of 50 kilograms which was different from the 1st defendant’s delivery note which indicated that the bags were of 25 kilograms. Further, from KENHA records, there were no tickets for the vehicle between 15th May and 24/5/2025. 62.The last was delivery note number 0144 dated 24/5/2021 which purported that there was delivery of 687 bags using motor vehicle registration number KBR 881P. The witness added that records from NTSA indicated that the vehicle was owned by 1st the defendant but KENHA records did not capture the truck on its way to Lodwar between 17th and 24th May 2021. 63.The officer’s findings were that no deliveries were done by the 1st defendant since the food it procured from Equatorial were collected on 29/5/2024 whereas it purported to have delivered on 17/5/2017 and 24/5/2021. He added that the documents that certified deliveries were inspection and acceptance certificates which indicated that the goods were received on 24/5/2021. The documents show that the persons who received the food were the 3rd, the 4th and the 5th defendants. 64.He continued to state that the food inspection certificate dated 24/5/2021 prepared by the 2nd defendant also purported that the food was received but the report had anomalies. The goods were alleged to have been manufactured on 28/4/2021 with expiry date of 27/4/2021 which would mean that they expired just before they were manufactured. It had some similarities with delivery notes and forms S13 in respect of vehicles, tonnage and delivery dates. 65.PW13 added that the 1st defendant raised invoices for the disputed deliveries and was paid Kshs 24,999,600/-. The 3rd defendant initiated the payments on IFMIS on 12/6/2021 and the 3rd defendant approved it on 22/6/2021. Another person, a second approver approved on 19/6/2021. He concluded by saying that the money was irregularly paid to the 1st defendant hence this recovery suit. 66.In cross-examination, PW13 told the court that, he analyzed the complaint and assessed its merits. The complaint was about conflict of interest in that the 1st defendant and its directors were trading with the government. He admitted that after the changes in directorship and shareholding of the 1st defendant he had mentioned earlier, the 6th and 7th defendants were no longer directors of the company as from September 2019. He admitted that after the investigations, he found that the government workers he mentioned were not directors of the company but his duty was not limited to confirmation of directorship only as there were also allegations that they were receiving money for work not done. He however confirmed that there was nothing in court to show that the 6th defendant benefitted in the transaction. 67.He insisted that the 6th and 8th defendants were related as per the next of kin form obtained from the government. He admitted that documents from the government were sent to the plaintiff through a letter which he did not have in court. He admitted that the next of kin form was not on the government’s letter head and it could possibly have been picked elsewhere as there was nothing to show that it came from the government. On the marriage certificate, the witness stated that the father of the 7th defendant was stated therein as one Akale Julius and his occupation was herdsman. 68.In his own words, he doubted delivery because of the source, date of delivery and discrepancies in transportation details. He alleged that Equatorial were the sole producer of corn soya porridge flour. He alleged that he made efforts to check other nut suppliers and found that there were other suppliers but they were not manufacturers. He was referred to a proforma invoice from a company known as Damusly Solutions and alleged that he had a chance to call the author who was not comfortable to go to his office. He then invited him to location of his choice in May 2023 where he went and was showed the documents from the said entity. He admitted that when he met the author of the invoice, he was aware that he was a defence witness. He added that he did not send a pre-written statement to him through email. 69.PW13 insisted that he did not threaten the director of Damusly after he refused to sign the statement he had emailed. He admitted having sent documents to his WhatsApp through his line. After he refused to sign, he just left. He denied approaching any other defence witness asking them to recant their statements including the 5th and the 7th defendants. He denied meeting the 7th defendant in Marble bar in Lodwar or Ukwala supermarket in Eldoret. 70.The witness testified further that from the documents he received from the government, the 1st defendant was the responsive company in the tender. He added that he looked at the tender documents and there was nowhere that the 1st, 6th, 7th and 8th defendants influenced the tender to themselves and that the 1st defendant was deserving of the award of the tender. 71.Pressed further, the witness stated that he had no evidence to affirm the allegations of fraud and conspiracy pleaded in paragraph 23 of the amended plaint neither could he support particulars of breach of trust. There was also no evidence linking the 6th and 7th defendant to the contract. He had no register of beneficial ownership neither was there evidence that the 6th and 7th defendants benefitted from this money. 72.Although he insisted that there was evidence amounting to conspiracy to defraud the government, the marriage certificate showed that the 8th defendant is not the father-in-law to the 6th defendant. He added that the tender was lawful and regular save for the element of supply in question. He admitted that the payments vouchers were signed by Pauline Lekoruka who was Chief Officer in Ministry of Education and was validated by an examiner but the later was not sued or made a witness in this matter. 73.The witness admitted that one Robert Lotaruk who was the procurement officer of the user department procurement was the one who collected all relevant documents and took them to the accountant but he did not call him not because he would have vindicated the defendants but because he was not present during the supply. He was emphatic that the 5th, the 3rd and the 4th defendants and one Yohana Lokoyo conspired because they signed certificates when there were no deliveries. 74.He stated further that some of the vehicles’ capacities could not enable them deliver the food but he did not physically verify the motor vehicles’ details but through documentation. He denied that it was possible that the true number plates were mounted on other vehicles. He however confirmed that there are instances where vehicles are mounted with wrong number plates. 75.Pressed further he stated that there would been an uproar if food was lacking in schools and further, there was no report from the County Assembly of Turkana on loss of funds. There was also no report from Chief Officer to the effect that there were no deliveries. The discovery came from investigations and that he was the only witness on the aspect of loss. He added that according to Robert, there was delivery and according to one Peter Apua, he saw the goods being delivered but never confirmed the type of goods delivered. He also claimed to have interviewed respective school heads who are set to testify in another matter. 76.The witness added that an accountant cannot initiate payment without approval of the head of department of procurement and that the procurement department is culpable if there is a problem with delivery. However, he did not sue anyone from the procurement department because the decision was based on the analysis he made. He stated that his investigations were based on delivery, purchase and number plates. 77.While being re-examined, the witness stated that after gathering intelligence, it was discovered that a company by the name Damusly Solutions whose director was Harry Kidiga Hongo delivered the goods on behalf of the 1st defendant. He invited the director for statement on May 2023 and wrote a letter to him inviting him to the plaintiff’s office but he never showed up. At around 3 p.m. of the day, he told him that he was not comfortable in their offices and he agreed to meet him at his preferred venue. He met him and gave him his laptop and he typed his own statement then he requested him to send him on WhatsApp message and email. When he shared the statement, the director told him that he had been advised by his lawyers not to sign. Defence case 78.The 2nd defendant died during the pendency of this suit and as such no evidence was led on his case. The 3rd defendant was the first to testify. She told the court that she was a senior accountant in the Department of Education in the government. Her duties as a senior accountant were being in charge of vote book, that is the budget allocated to that department. She prepares payments and scrutinizes all documents from procurement to see whether they are in order. 79.She confirmed that she was appointed to the tender and inspection committee in regard to this matter. She joined her colleagues to verify and ascertain whether the quantities pf the food had been delivered. After inspecting the goods, she counted and tallied 6,024 bags. Those present during the counting were James Chegem, Samuel Eregae and other staff including Ernest Ekae, who is an assistant procurement officer in the Ministry of Education. After completing inspection, she signed a report to that effect and handed over to the procurement department. 80.She added that she later received documents from the procurement department and scrutinized whether they were in order and prepared payment voucher. She explained that payments in IFMIS starts from the requestor who in their case was Ernest Ekal. The requestor would initiate requisition and send through the system to the Chief Officer to approve. It then reverts to the procurement for other processes to take over. 81.She added that from the procurement, the documents come to her office for her to prepare payment voucher. After she prepares the payment voucher, she would do the invoicing then the documents go to the examiner who scrutinizes the documents and if they are in order, the process proceeds to the next stage. The 3rd defendant added that she was not introduced to anyone on this tender and did not receive any money related to this tender. 82.When she was cross-examined, she stated that in her daily activities, she does not interact with the accountant general. She did not know Esther Lokai Elim. She added that she was not a member of tender opening and closing committee. She was also not a member of the evaluation committee, but was a member of inspection and acceptance committee. The other members were James Chegen and Samuel Ekegae. She inspected the food but did not see it being delivered. 83.She stated further that there was a food and inspection report which they considered and she insisted that she counted 6,024 bags. She only checked the quantity. She admitted that the certificate of the public health officer showed that the manufacturing date as 28/4/2021 and the expiry date as 27/4/2021. In preparing the payment voucher, she looked at the requisition, evaluation report, the contract, purchase order and delivery notes. 84.The 5th defendant told the court that his work in the government was to ensure that the store was clean, receiving items and signing of deliveries and form S13 in which the incoming goods are recorded. In respect of this matter, he was appointed as a member of inspection and acceptance committee. He explained that when food come, they call public health officer to inspect and when he approves, they offload engaging casual loaders. After offloading, they sign delivery notes and generate form S13 and then call inspection committee through procurement department who inspect the goods and count after which he signs the inspection and acceptance certificate. 85.The said defendant testified further that he signed inspection and acceptance certificate dated 24-05-2021. At the time of inspection, they took photographs at the store which he identified as part of the defendants’ documents. He confirmed that he was the one who prepared forms S13 produced as plaintiff’s exhibit 17(e) and 17(f) and insisted that the bags were of 25 kilograms and stated that it was an error to indicate that the same were 50 kilograms. He added that later, one Joseph Longole the examiner returned those documents which they amended and wrote afresh and attached. He could not see the documents which they amended in the trial bundles. 86.The 5th defendant was cross examined by the counsel for the plaintiff and stated that the food for children is very important and that he had received 4 orders from 1st defendant but he could not remember how many vehicles delivered unless he checked the documents which had been taken by PW13. He reiterated that he is the one who signed for delivery of all the bags in question and prepared S13 and attributed the errors on the documents to fatigue as he was working for long hours. 87.The 4th defendant testified that he was a retired director of ECDE of the government but has since retired. He stated that he had many roles but in respect of this matter, he signed the requisition and payment vouchers in question and in the tendering process, he was a member of evaluation committee and inspection and acceptance committee. He stated that there was no conflict of interest in the process of their evaluation and that all work was done by procurement department until everything is delivered. He added that the inspection and acceptance committee is appointed after the goods are delivered and could not have been appointed if the food had not been delivered. 88.He added that when they were appraised and signaled of arrival of food, the 3rd defendant, the 5th defendant, himself and a representative of supply chain department and some other staff members went to the store, counted and verified that they were what they had requested and upon inspection, they presented the inspection and acceptance certificate. 89.In cross-examination he stated that he exited the government on normal retirement. This was a school feeding program which had been budgeted and had been there from the time he was young as motivation to keep children in school. He added that, he was appointed to the evaluation committee by Jacob Lolelea the then Chief Officer as the chair. He also confirmed that the 1st defendant was awarded the tender and that the contract was prepared and executed. 90.The 4th defendant added that when they wanted to procure specific goods, they would issue local purchase orders which indicated the amount and quantity. Goods are supposed to be supplied as per the local purchase order and as per the contract. When the goods are delivered at the stores, they are received by the procurement team. He stated further that he didn’t handle the documents at the delivery and that he was not privy to documents issued upon delivery. 91.He stated further that distribution of the food was done by the procurement people and that he only prepared the distribution plan which is signed by the Chief Officer and which is used to distribute the food. The distribution is done by drivers and people the government had called monitors. There was always a list of how food got to the schools. 92.He claimed that he could not remember how many orders the 1st defendant was asked to supply but he confirmed signing the requisition dated 16/3/2021 and approved it as the AIE holder. He added that he was appointed to the inspection and acceptance committee on 24/5/2021 and the food was delivered on different dates and that he was not present when it was delivered but since his office was next to the store, he could see the lorries delivering the food but did not see their number plates. 93.He testified that the delivery notes which they looked at were signed by the 5th defendant who had received the goods. He confirmed that he counted the bags one by one and also followed the expert’s report that the food was fit for human consumption. He added that if the food was expired, it would have been rejected. He claimed that there was no contract on the 3rd delivery but there was dire need of food because the food which was in store before had been given to the community in 2020/2021 when schools were closed due to covid-19 pandemic. 94.The 8th defendant testified that he was the director of the 1st defendant and that the 1st defendant applied for the tender in January 2020 after seeing an advert in the newspapers and the government’s notice board. Their bid was successful and a framework contract signed on 23/3/2020. He added that they were issued with a local purchase order dated 23/3/2021 which was asking them to supply 6,024 bags of the food worth 24,999,600/= after which he gave instructions to the 8th defendant’s workers specifically one Ken Eukot Ngasike to research where they could get the food. The workers got the food from Equatorial and Damusly Solutions (hereinafter referred to as ‘Damusly’). The 1st batch they got from Equatorial while the 2nd batch and which was cheaper was found at Damusly. He added that they had done business with Equatorial twice while part of the 3rd one which is involved in this case came from Damusly. 95.He added that Damusly supplied them with 3,600 bags at Kshs 76 per kilogram and they went to Equatorial for the deficit quantity. Ken was the one who knew the details of the person they dealt with at Damusly as he had delegated much of the work to Ken. He further stated that the supply was being done in batches as it could not be gotten at the same time. He would give money to Ken for the quantity available. He paid Damusly Kshs 6,840,000/= in cash. He added that they would buy through brokers and that is why Damusly demanded cash for their ease of transactions. He stated further that he would withdraw the money from his account at Equity Bank and identified his bank statement which he claimed showed the withdrawals. They had agreed that he would pay Damusly upon them delivering the food to the government stores or to their offices. He would send workers to go and verify the delivery after which he would pay. 96.The 8th defendant added that they had to go back to Equatorial for supply of the remainder of the bags which Damusly could not supply. Equatorial would supply them through his agent one Sila Ekisai, who is a witness in the matter. He did not know the time and date the consignment left Equatorial or the vehicles used and did not even go to the government offices. Once the consignment from Equatorial reached, he would pay through transfer or cheques. He identified a transaction of Kshs 1,500,000.00 he claimed was payment to Equatorial. 97.He added that the first business with Equatorial was paid in cash before taking the consignment. For the second, they received the consignment which was paid after a week. For the third time, they were given the consignment then they paid in 10 days. He was categorical that the consignments from Equatorial reached the government and Equatorial were paid. He claimed that he also took a loan from Pelekech Contractors belonging to his friend when they were down to enable him pay for the food. 98.He denied bribing or using anyone as a proxy at the government for the business and added that he did his work and asked for payment as a citizen. He stated that it is not true that the 6th and 7th defendants resigned from the 1st defendant and continued doing business with the government. He also stated that it is not true that the 6th defendant is his daughter in law and the 7th defendant his son. He explained that he was 52 years old and older than the 7th defendant by ten years and he could not therefore be his son. 99.The 8th defendant sought to explain why the company was still using the telephone line which was registered to the 7th defendant by stating that it belonged to the company even after the 7th defendant’s resignation and that Ken was the one who is in custody of the line for purposes of communication. 100.The 8th defendant testified further that the government called him through the Chief Officer of the Ministry, one Pauline Lokuruka (PW2) and a Mr. Robert from procurement department in February 2021 asking whether he could supply more food at the price he had supplied before. He agreed and an addendum agreement drawn by the government executed. He stated that he did not influence in drawing of the addendum which was signed by the Chief Officer and the County Counsel and his witness. 101.The 8th defendant was cross-examined and stated that the records for incorporation of the 1st defendant showed his name as Emmanuel Ekorot Endapal although his identity card showed Peter Ekorot. He claimed that Emmanuel was in his baptismal card. He denied that he came from the same family with the 7th defendant. He did not know that William Ekale Ekorot is a father to Samuel Ekon and the 7th defendant. He added that they opened bank account for the 1st defendant in Equity Bank with signatories being himself and the 7th defendant. They also indicated the company’s telephone number as 072593xx03 which was registered by the 7th defendant. The line was still registered to the 7th defendant. 102.He added that when they incorporated the 1st defendant, the 6th defendant was working at the County. He used to work with her at Oxfam before she got job at the County. He added that the 6th defendant was wife to the 7th defendant and that he attended their wedding. He did not know whether she listed him as her father-in-law in the government records. 103.He further stated that it is not true that the addendum to the agreement was to cover or sanitize previous deliveries. He stated that Damusly is situated in Eldoret but did not know where they store the food and he has never been to their premises. He further stated that he was supposed to confirm whether the food was fit for human consumption. 104.He could not remember when they ordered for 3,600 bags but admitted that records show that they asked for 2,450 bags from Equatorial which were delivered. They paid Kshs 1,600,000.00 upon delivery through Pekelech Contractors. He further stated the food was transported by lorries and that he did not know the ownership of the lorries neither did he know whether the bags could be transported by small vehicles but he confirmed that a small vehicle cannot transport ten tons. He could not personally confirm whether the food was delivered because he was not there. 105.He added that if the food had expired, it should not be given to the children and the supplier should not be paid. He did not know about detection of vehicles in a weighbridge and did not confirm delivery but he confirmed that they received payments in their account. 106.The 5th person to testify on the defence side was Ernest Etukon Ekal working with the government as a Supply Chain Officer. He told the court that his duties included receiving and dispatching of goods in the store. He also prepares documents for procurement, payment, budget for ministries he is attached to and any other duties assigned to him. He stated that the 1st defendant had supplied four times to the Ministry of Education. He added that he was in charge of the stores while the 5th defendant was the store man and his work was to ensure that procured goods were actually delivered. He would go to the store, verify delivery, then call public health officer who would certify whether the food was fit for human consumption before it was offloaded to the store. 107.He confirmed that they received the consignment in question in this suit and added that after all the deliveries came, they called the Chief Officer who instructed him to draw a letter appointing a committee of inspection and acceptance. The Chief Officer who was then PW2 gave him the names of the persons to be appointed. He did as instructed and took the letter to the Chief Officer who signed and stamped while he was there. He took a copy and gave each appointee. The appointees were Samuel Eregae (ECDE director), Grace Murei (accountant) and James Chegem (the store man). The witness insisted that he was present when all the trucks came for delivery and he was also present when the goods were being offloaded. 108.He added that the County Secretary was aware that he is in this court to give evidence and that he was not in any way influenced or forced to testify. He added that Mr. Mutua (PW13) had investigated him twice and called him to record statement. First time he was called in County Secretary’s office and the second time in Turkana Central Sub-County’s office. In his statement whoch he recorded with PW13, he told him that the 1st defendant delivered all the bags just as he was repeating it in court. 109.The witness added that it would be misleading for one to say that the vehicles were tricycles as what he saw were trailers with each having its delivery notes. He added that the allegations against the 3rd, 4th and 5th defendants are false because they even took photos of the delivery which had been he identified and pointed to court the officers in the photos who included the 3rd and the 5th defendants. He stated further that in Turkana, children go to school if there is food and if the food did not come, the Assembly would have summoned County Executive Committee Member and the Chief Officer of the Ministry of Education. He added that, it was not possible that the Chief Officer would discover that there were no deliveries after two years. 110.After the goods were offloaded and inspection done, he informed Robert who instructed him to compile all the documents and give out to the accountant for processing of payment. He further stated that there are also counter receipt vouchers prepared by the store man where it is indicated that goods have been received in store. All these documents were given to him and were checked by an examiner from the treasury. 111.In cross-examination the witness stated that the stores were separate from where he sat and that the goods are received in the County stores and he was not the store keeper but the 5th defendant was. When he came into the Ministry of Education, he found the 1st defendant having been contracted. He confirmed that the deliveries of total of 6,024 bags were between 17/5/2021 and 24/5/2021. When some differences on the registration numbers in the delivery notes and his statement were pointed out to him by the counsel, the witness stated that he could not confirm the vehicles’ registration numbers because it was not his work and that he was not the one who wrote the delivery notes. 112.He stated further that, after delivery to store, the food was supposed to be taken to schools and insisted that the ones in question were taken to the schools. They were collected by Sub-County officers and a teacher who heads the ECD of the County and monitors ensure that the food reach schools. He added that there is always a way bill which shows food being removed and being taken to school which is signed by the driver, the store man and the person receiving at the school but he did not have the way bills in court. 113.The next witness was Peter Long’ole Apua, an employee of the government as a principal accountant and head of examination at the treasury. The examination entails verification and validation of payment. The government departments bring their documents for processing upon which the examiners ensure that they are fully supported and they are lawful for payment. 114.The witness added that the payment voucher produced as the plaintiffs exhibit 16 had his signature. He confirmed that he went through it and confirmed that the company was entitled to payment and the same was signed by the AIE holder (the head of user department), the Chief Officer and the vote book accountant. He added that as examiners, they check completion of the documents and whether what was said to have been delivered was real. 115.He added that when the voucher was brought to their office, they needed corrections one of them being the dating and expiry of the contract in question and they gave the documents for correction to the accountant and it was brought back with the corrections done. The error was noticed during the examination and when the document was brought for the second time, they visited the stores for verification accompanied by the accountant, user and procurement office staff. He added that there was also an issue with packaging as the sacks had dates of expiry of 2021 instead of 2022. 116.He added that he was interviewed by the plaintiff’s officer twice and recorded a statement. He met one Mr. Mutua and wrote two statements. Mr. Mutua showed him the documents which he explained and confirmed that he was the one who examined them and he told him that they saw the errors in them and went to store to verify. He completed his evidence in chief by stating that he was in court to testify and was given a letter of release by his boss which he had in court meaning that he was in court on official duties. 117.When he was cross-examined, the witness testified that he knew the 6th defendant but had never worked with her in the same department. He added that his verification entailed examining whether the documents met legal requirements all the way from procurement plan up to the delivery. He added that they noticed that form S13 and delivery notes were not corresponding and they returned form S13 for amendment which was done and when they went to the store, they saw bags of 25 kilograms. He insisted that he told PW13 that the documents he was showing him had been amended at the treasury but he did not know whether the 1st defendant was informed of the amendment. 118.He stated further that his job was to examine and to do verification which he did and verified and saw the bags written ‘Ujimix Turkana County’. He added that he did not go into the details of inspection and did not count the bags. He added that he approved payment based on the amended documents brought at the second submissions. 119.The next person to take the stand was the 6th defendant who testified that she was working with the government as Deputy Director in charge of administration in Education, Sports and Social Protection Ministry. From 2015 to 2023, she worked as Deputy Sub-County Administrator. Her work was to co-ordinate government activities at Sub-County level. She had been deployed to Turkana South Sub-County offices stationed at Lokichar. 120.She stated that the claim of conflict of interest against her was false as she never traded with the government within the period in reference. She admitted that she knew the 1st defendant and she was one of the directors from 2013 but resigned in April 2019 after which she never took any part in the operation of the company. She added that as at the time of the award, she was not with the 1st defendant and she was not in any way involved in the award. She added that in her position, she was not capable of influencing any award of a tender. 121.She further stated that she has never been a beneficiary of the 1st defendant since her resignation and that she does not have any interest whether private or public in it. She has not acquired any property from the government other than her salary. She admitted that the 7th defendant is her husband who also resigned from the company and therefore there was no conflict of interest. 122.The 6th defendant denied knowledge of the next of kin form produced by the plaintiff as exhibit 48 and added that, the ones the employees fill has the government’s logo. She stated that the 8th defendant is not her father-in-law and that her father-in-law is one Julius Lolowi. She pointed out that the marriage certificate produced by the plaintiff as exhibit 49 showed that the father of bachelor (the 7th defendant) as Julius Akale who is the same as Julius Lolowi as he commonly uses the name Akale. 123.The 6th defendant testified further that she has never been a member of any tender committee in the government and hat she has never been an accountant with the government and did not influence the payment. She added that she is not a signatory to the payment voucher produced as plaintiff’s exhibit 16 or the 1st defendant’s bank account. 124.In cross-examined, the 6th defendant stated that she had recorded statement with EACC twice or thrice and reiterated that she has never been an accountant general with government but she has worked as an accountant in another organisation. She confirmed that she knows Peter Ekorot and his telephone contacts. 125.The said defendant denied interacting with payment vouchers or preparing any financial report. She clarified that she was a director of the 1st defendant when it was incorporated but not signatory to its bank account. She also denied that the 6th defendant was a step father to the 7th defendant. They were working together in Oxfam and that is how they came up together and formed a company as they were colleagues. 126.Yohana Lokoyo testified that he is a driver and assists the 8th defendant whenever he needs his services. He stated that in 2020, he went with the 8th defendant to the government’s offices to sign a contract for supply of the food but he did not sign. He signed the addendum to the agreement in May 2021. 127.He added that the 8th defendant requested him to escort the trucks which were going to deliver the food and that he saw the six trucks bringing the food on several days. He alleged that he was present when the lorries came. He would meet them in Kanamkemer which is a shopping centre a few kilometers to Lodwar. The 8th defendant would call and instruct him to escort the lorries for offloading at the government offices where he would find the 5th defendant who would then call his boss informing him about the delivery. The health officer would come, offload one sack, take sample and go, then come back and advise whether the food was okay for off-loading. 128.He added that there was no food in the store when they offloaded the consignment. After the offloading, he wrote delivery notes in which he recorded the delivery vehicle. He then gave the 5th defendant the delivery notes then go back with the delivery book. He confirmed that the delivery notes produced by the plaintiff were prepared by himself. He admitted that exhibit 15 (a) was prepared by him. he testified that the plaintiff’s exhibit 15 (b) (delivery note number 0140) shows KCJ 795J while his statement shows KCJ 955J and exhibit 15(c) (delivery note number 0141) shows motor vehicle as KCU 332W while his statement shows KCU 322W and pointed out that these were errors and the correct vehicles were those in the statement. 129.The witness added that he signed form S13 on the same day he issued the delivery notes. 130.He added that after signing form S13, he generated invoices and took to the Ministry of Education and that his work ended there but after one week, the 8th defendant called and instructed him to go back to the government offices and sign form S13 afresh which he did at the office of Peter Lotaruk who was in the procurement department. He added that they had made amendments to form S13 but he could not see the amend copies in court. 131.When he was called by the investigations officer to record statement, he went with photographs of the delivery vehicles. He added that Mr. Mutua wanted to know about the number plates of the correct vehicles and that he gave him the photos but the photos were not in court. He stated further that 6,024 bags reached the government in the presence of the 5th defendant, a Mr. Ernest and the 2nd defendant. He didn’t know the owners or origins of the trucks neither did know their details. 132.In cross-examination, he stated that he had worked with the 8th defendant for 9 years since 2016 and that the 7th defendant was not one of the 8th defendant’s children. He maintained that he escorted two trucks on 17/5/2021, two trucks on 20/5/202 and two lorries on 24/5/2021. He insisted that he explained to Mr. Mutua the errors on the lorries and documentation. He did not have a receipt for weighbridge to prove that the vehicles were in Lodwar on the stated dates. The 5th defendant did not call him to take new delivery notes. 133.Harry Kidiga Hongo was the nineth to testify on the side of the defendants. He told the court that he is a businessman trading in commodities. On 26th March 2021, he received an order from Kenny Aukot, an accountant with the 1st defendant to supply the 1st defendant with 6,400 bags of soya. Upon consultation, they felt that it was not possible to get the supply within the period of 30 days they had been given and Mr. Ken Aukot did an amendment reviewing the order to 3,600 bags. He produced both the original and amended order as defence exhibits 13 and 14. 134.The witness added that in mid-April 2021, he was in Turkana and was given a down payment of Kshs 600,000/= and that apart from receiving the deposit, Ken Aukot gave him specifications for the food. He sourced the produce from business partners who produce different commodities. He issued the 1st defendant with a pro-forma invoice for Ksh. 6,840,000/= with each bag going for Kshs 1,900/= which is 76/= per kilogram. 135.He personally delivered the first batch of 1,160 bags which was loaded at Kimumu on 17/5/2021 to Lodwar in a truck registration number KCY 884Z, a Mercedes Benz white in colour. He added that he is the one who procured the truck directly from a Mr. Waweru who was the driver. He stated that he paid Mr. Waweru Kshs 3/= per bag in cash in advance. He used Kimumu-Chepkoilel University-Ziwa Cherengany-Makutano-Kitale-Kainuk-Lokichar-Lodwar route which is about 58 kilometres shorter than the conventional route. He added that he had overloaded the truck by four tones. He added that he did not encounter any weighbridge on their way to Turkana. He stated further that the driver was in a hurry to go back and that it was possible for the vehicle to be in Malaba on 18/5/2021 after delivery at Turkana. 136.The witness added that he delivered another consignment of 1,165 bags on 20/5/2021 using motor vehicle registration number KCU 322U. After that he made another one which they split into two batches. The first one had 687 bags with motor vehicle KCC 402G and the other one of similar number of bags with motor vehicle registration number KBR 881B. The vehicles which were trailers also had rice on board. In the latter two consignments, they used the same route as the first one. 137.He added that one Mr. Yohana was the one receiving the consignment but he did not have his details as he was directed by the 1st defendant on who he should have conduct with. 138.He added that he was paid by the 1st defendant for the past batch and issued a receipt to that effect which was in the name Damusly of which he is the proprietor. He confirmed to have been paid Ksh. 1,400,000/= in Turkana by Mr. Kenny Aukot who is the accountable manager of 1st defendant. He was paid Ksh. 480,000/= by the 8th defendant who is the director of 1st defendant and the last batch of 4,360,000/= by the 8th defendant upon which he issued receipts to that effect. 139.The witness added that he was contacted by the plaintiff through PW13 who wanted him to adopt pre-edited statement which had not been made by him. PW13 wanted him to denounce that he ever delivered commodities to the 1st defendant and become a state witness and gave him a lucrative offer which he declined upon which PW13 got temperamental and caused commotion at the hotel and demanded that he should pay the bill which events were captured in CCTVs. 140.In cross-examination, Mr. Harry stated that Damusly was not a manufacturer of the food but they were in commodity trading and they acted as agent. The manufacturer was the late Jackson Kibor but he did not send any purchase order to Jackson Kibor. He paid him in cash but he did not get any receipt from him. He added that he is the sole proprietor of Damusly. 141.The witness maintained that he used truck numbers KCY 884Z on 17/5/2021 and KCU 322U on 20/5/2021 to transport the commodity to the government which was sourced for him by the manufacturer. He further stated that he did not use the normal route because the route he used was shorter and with less traffic. The other reason was that he wanted to avoid the weighbridge because they were overloaded. He also used KCC 402G carrying 687 bags and KBR 881P on 24/5/2021 and did not know the owners. He added that he was in KCC 402G which took seven hours but he did not know the driver’s name. 142.Ekatorot Ewo Philemon was the tenth witness who told the court that he was the Ward Education Officer of Turkana County and a teacher by profession his. He added that he was in court to confirm that the government received the flour in question and averred that he had been released by the County Government to appear in court through a letter from the County Secretary which the court noted as dated 6/11/2025 with reference number TCG/ESSP/ADM/VOL.2/006. 143.He added that between March and August 2021, he was a teacher in a school known as Nakwamoru ECDE Center based in Kaputir Ward in Turkana South and that in the second week of May 2021 they received food. They used to receive food in the 1st month of every term in the County. She confirmed that they received 15 bags of Ujimix for that term and that the food increased the learners’ enrolment. He claimed that, the provision of food in schools was motivating learners and if the food were delayed for a week, the learners would stop attending to school and parents would hold demonstration. 144.He added that once the food was brought, they would sign the way bill. He stated further that sometimes later, they were instructed to go to Lokichar Sub-County administrator’s office with the record and way bills for the food they had so far received following which he took the file with the way bills where he met his colleague head teachers. He added that, there was message that there were people coming from the Ministry and that they were addressed by one Mr. Mutua who had come with a white truck. They were then directed to an office one by one and during his turn, Mr. Mutua took his file and plucked one of the waybills and gave his file back. Everyone outside went through the same and at the end, they carried all the way bills in the white Land Cruiser and they never saw them again. 145.When he was cross-examined, he stated that the food was being delivered by the government and he did not know about the 1st defendant. He added that those delivering the food leave them with the original and go back with two copies of the way bill. He could not deny or confirm whether the 1st defendant delivered the goods to the government. 146.The 7th defendant told the court that it was not true that he was a beneficial owner of the 1st defendant. He added that he left the company after he resigned on 29-02-2019 to purse a PhD at the University of Nairobi and was not even an employee. He added that after resignation, he did not have any shares in the company and that he transferred his shares back to the company. He produced a letter dated 10th January 2020 from the University of Nairobi which was an offer to him to undertake a PhD in Business Administration in the year 2019/2020 as defence exhibit 21 and a postgraduate scholarship offer by Higher Education Loans Board dated 2nd November 2020 as defence exhibit. 147.He further stated that when he was undertaking his studies, he did not involve himself with the 1st defendant and therefore Paragraph 24 of the amended plaint is not true. He added that the 6th defendant was his wife who also resigned from the 1st defendant with him and they have never traded with the government. 148.He further testified that he had no control over or a signatory to the bank account which is said to have received the money in question. He was not aware of the tender awarded to the 1st defendant and did not benefit from it. He did not even know whether they were paid and did not received money from the 1st defendant. He added that the 8th defendant is not his father or father-in-law to the 6th defendant and that his father is called Julius Lolowi Logwamu. He produced his birth certificate as defence exhibit 23 which he said showed his name and those of his parents. 149.He added that he was summoned to Eldoret by one David Mutua who wanted him to confirm that he was a director of the 1st defendant. He presented to him his resignation from the 1st defendant but he kept on calling and asking him to do things he was not comfortable with. He stated that Mr. Mutua wanted someone who will be a link between him and the company as the company was very firm and it used different numbers. He added that in November 2021, he went and recorded a statement at the office of the plaintiff in Eldoret but was not given a copy of the statement. He claimed that there was a pre-written statement Mr. Mutua wanted him to sign but he refused. Mr. Mutua specifically wanted him to say that he was a director of the 1st defendant and that the 8th defendant was his father. 150.The 7th defendant added that telephone line number 0725xxx303 was his from 2005 to 2013 and after registering the 1st defendant in 2013, the number went to the company as he surrendered the line to the company for its operations. He added that currently, he was using 0713xxx118. 151.When he was cross-examined, the 7th defendant stated that the 6th defendant was a shareholder at the incorporation of the 1st defendant and that she is also an employee of the government to date after she was appointed in 2015 as a Deputy Sub-County Administrator. He added that the intention of opening the company was to conduct business and that when they opened account number 09xxxxxxxxxx2 at Equity Bank, the signatories were him and Samuel Ekeno Epagan. The telephone line they gave while opening the account was his then number 0725xxx303 which was used in transactions. He added that he used his identity card to register the line and the company was using the line to transact and it remained in his name to date. The number was also attached to properties of the company including motor vehicles because he did not inform NTSA of the surrender of the number. He stated further that he informed the bank that he had resigned though he did not have the letter in court. 152.DW12, a Mr. James Long’or Akori told the court that he works as a casual in Lodwar. He added that on 24/5/2021, he was in his own business in Lodwar town when he received a call from Ken an accountant with the 1st defendant who wanted him to help him by going to a store in the Ministry of Education of the government. He stated that the resource centre where the store was located is 5 kilometres from the town. Ken sent him to a Mr. Chegem and when he reached, he found that there was food which had been supplied. He was supposed to represent the 8th defendant in confirming delivery of the food. 153.The witness added that, he met young men outside the government store and enquired who was Chegem. He was directed to the store where he met six men and, on his inquiry, Mr. Chegem was identified to him. He claimed that he counted the bags and found they were 6,024. After counting, they took a photograph while standing alongside the bags. He did not know the person who took the photo but he was dark and tall. The photo was forwarded to him which he forwarded to the 8th defendant. He confirmed that the food was delivered. 154.In cross-examination, the witness stated that he has never been contracted to transport the food and this was the first time he learned about the supply. He was not present when the bags were delivered or off-loaded. He could not tell when the delivery was done and he didn’t know the relationship between the 1st defendant and the government. He added that the bags had been branded “Unimix 25 kgs” and that he saw the brand on the sacks. 155.The witness added that they did not open or weigh any bag and that he didn’t know the persons present except Mr. Chegem who was identified to him. He didn’t know the source of the bags and he was not given any document as proof that there were deliveries. He did not sign any document neither did he know where the bags were taken. 156.Silas Akisali was the 13th witness for the defence. He testified that in May 2021, he acted as an agent for the 1st defendant in Nairobi and elsewhere. He stated that he was called by the 8th defendant and asked to check the 1st defendant’s goods in form of uji mix in Equatorial which is located in Maragwa in Murang’a County. He went and checked and found that the goods were ready and he was advised to pick because their stores were full and there was another flour and goods for the World Food Programme which needed storing space. 157.The witness added that the goods could only be transported using two trucks and a canter and he searched for motor vehicles and got KCH 955J and KCH 402Y. He also had KCY 323N, a double cabin which he was driving. The 1st defendant sent him money for transport through Kenny Ng’asike. He got one vehicle from Samuel Waweru who also connected him to the vehicles’ owners. 158.DW13 added that he loaded 1,200 bags on KCJ 955J on 15/2/2021. KCH 402Y was late and the driver was called by his boss for another job. After two days, Waweru got him another vehicle KBQ 177H after two days. While on the way for delivery, KCJ 955J which was a prime mover complained of overload and he offloaded 35 bags to reduce the weight. 159.The witness added that the goods got to Lodwar under supervision of his brother Rodgers Akisali who was driving KCY 323N. They paid half price for the transport then the balance after the goods got to the destination through Mpesa and cash. 160.The witness added that KBQ 177H loaded on 18/5/2021 and offloaded on 20/5/2021. He sent an agent and did not accompany the vehicles. He stated further that he took KCY 323N to JP transporters with the 90 bags who took it to Turkana. His work was to dispatch and he could not tell which routes the vehicles used. 161.The witness added that when he was picking the goods, PW11 was not present as he sits in the office. When he was looking for the goods, he was in the company of Kenny and they found PW11 in their office in Westlands. The loading was done away from office. He further stated that he was not given documents for the goods as the money had not been paid and that he was given the documents later on 29/5/2021 after payments were done on 28/5/2021. He was also given delivery notes, invoices and certificates of quality. He explained that Equatorial allowed the goods to be dispatched before payment as they had built trust. 162.He added that he is the one who signed the delivery notes and that the goods were manufactured on 27th/28th April 2021 and expiry date was 26th/ 27th April 2022. He noted that the certificate of the government’s public health officer showed date of expiry as 27/4/2021 but added that the manufacturer’s report should be adopted instead of the government’s report. 163.The witness claimed to have done a lot of work for the 1st defendant for different clients but for the food in question in this case, he delivered the two trucks and the one of double cabin. He stated that total bags delivered to the government were 2325. Equatorial were paid and that is why they released the documents. He did not know who had given the tender to supply. He added that after loading, he released the vehicles to a trusted person to Turkana and that he was left in Nairobi. He did not know how much was to be paid to Equatorial as the payments were done by a director of the 1st defendant. 164.The witness denied sending motor vehicles registration numbers KCY 884Z, KCJ 795J, KCU 323W, KCC 402C and KBR 881P. He stated further that he did not know the routes which the vehicles he sent used but he was sure that they reached Lodwar although he did not accompany them. 165.The last witness for the defence was Kennedy Eukot Ng’asike a resident of Turkana based in Lokichar. He told the court that he was the Operations Manager Finance and Administration with the 1st defendant. He was aware that the 1st defendant bid and won tender to supply 6,024 bags of the food to the government. He added that he was the one who did the job of applying for the tender which he did through IFMIS and the telephone number used therein was 0725xxx303 as their password. He added that they did not influence the award. After the award, they signed the framework agreement dated 23/3/2020 and they got awarded to supply 6,024 bags. 166.When they received the local purchase order, he made a call to their agent in Nairobi known as Akisali and instructed him to go and confirm the prizes of the food from Equatorial, who they had dealt with before. He stated that they discovered that Equatorial had increased the price by one shilling making a difference of Kshs 116,000/=. After comparison they felt that they will make a loss and he therefore widened consultation and got Mr. Harry Kidiga, the proprietor of Damusly. He stated that, they bought 2,450 bags from Equatorial and the remaining 3,600 from Damusly. 167.The witness added that he paid Equatorial in three batches. The first payment was Kshs 1,500,000.00 through the 1st defendant’s bank account in Equity on 28/5/2021. The other payment of 1,600,000/= was paid through their sister company known as Pelekech on 18/6/2025. He added that he made cash payment of 2.1 million at their Westlands office making a total of Kshs 5,267,500/=. 168.The food was delivered in Turkana between 17/5/2021 to 24/5/2021. He stated that he was in Lokichar but he was sure that the delivery was done in Lodwar because they had workers on the ground by the name James Long’or and Yohana Lokoyo who sent him photos for the deliveries before he paid. 169.The witness stated further that Damusly who is located along Uganda road in Eldoret is not a manufacturer. He contacted Harry Kidiga and wrote to him a purchase order of 6,024 bags but he said that he could only manage 3,600 bags following which he amended the purchase order. he added that they had business relationship with Damusly who was an agent in Eldoret for anything they wanted including cement and building materials since 2016. 170.He stated further that the first and second payment of Kshs 1,600,000.00 and Kshs 1,400,000.00 respectively to Damusly were done in Lodwar while. He added that he visited Harry Kidiga in Eldoret and paid him Kshs 480,000/=. The last payment of Kshs 4,340,000/= was alsos paid at Lodwar. All these payments were in cash as that was the mode of payment Damusly preferred. He testified further that the food bought from Damusly was delivered to the government in Lodwar in the same period as those from Equatorial with the last delivery being on 24/5/2021 upon which he raised an invoice to the government for the full amount which was paid. 171.Kennedy added that he only knew the 8th defendant as the director of the company and did not know any other before 2014. He did not know the 6th defendant but 7th defendant is the one who recruited him in 2014 and was no longer working with them as he left in 2019 upon which the witness assumed his position. He had never seen him interacting with the company. 172.He stated further that he was the one running the accounts of the 1st defendant and the 6th and 7th defendants never benefitted from the amount paid to the 1st defendant by the government. He claimed that he knew the children of the director and the 7th defendant was not one of them. He added that the 8th defendant is the only the signatory to the 1st defendant’s bank account. 173.In cross-examination, he stated that he could not tell what was in the sample given by Damusly. They always carried cash in large amounts because they have many clients and employees who needed to be paid in cash. He claimed that he did not have the delivery notes when he paid Equatorial and he did the payment on trust. 174.He added that Equatorial did not give them a credit note to confirm that the goods had been picked. He sent Kshs 165,000/= to Akisali for transportation per truck. He could not confirm the specific person who called him when the goods reached Lodwar neither did he know the truck numbers but they could be seen from the delivery notes. He admitted that the documents from Equatorial were made after delivery which was not a problem as the same depends on business arrangements. He stated further that he made order to Equatorial after Damusly told them that it did not have capacity for 6,024 bags. He concluded by saying that he did not know the 7th defendant’s wife. Analysis and determination 175.I have considered the lengthy evidence adduced by the parties and the voluminous exhibits produced herein. The plaintiff produced a total of 65 exhibits while the defence produced 26. I have also considered submissions of the parties dated 20th February 2026 (plaintiff’s), 20th March 2026 (1st, 6th, 7th and 8th defendants’) and 12th March 2026 (the 2nd, 3rd, 4th and 5th defendants’). From my reading and analysis of the above, it is my opinion that there is no contestation that the tender for supply of the food was awarded to the 1st defendant and the 1st defendant was paid the sum of Kshs 24,999,600.00. What is the center of dispute is whether the food was actually supplied and whether there was conflict of interest in the business. 176.In summary, going by the amended plaint, the plaintiff’s case against the 1st defendant is that it falsified the delivery notes while aware that it did not deliver the goods indicated in therein. The case against the 2nd defendant was hinged on falsifying the food inspection report. The case against the 3rd, 4th and 5th defendants was that they misled the government that there were deliveries and signing and issuing inspection certificate and the counter receipt voucher when there were no actual deliveries. The 6th defendant is accused of breach of trust and conflict of interest by promoting a company that she had interest in to trade with the government through the 7th and 8th defendant who were alleged to be her husband and father-in-law respectively. The case against the 7th defendant is that he was the beneficial owner of the 1st defendant and he used his wife, the 6th defendant to trade with government. Finally, the plaintiff accuses the 8th defendant of conspiring with the 6th defendant to enable the 6th defendant trade with the government which company received Kshs 185,638,899.00 between 2014 and 2021 part of which is what is being claimed. 177.When the plaintiff moved in to investigate the case, the issue was possibility of conflict of interest in that the employees of the government specifically the 6th defendant was trading with the government. As the investigations progressed, the focus seemingly changed to the legality of the contract and abuse of office that facilitated payment against goods which were never delivered. 178.Based on the above, I have formed opinion that the issues for determination are;a.Whether the procurement of the food was marred with illegalities or was in breach of the law.b.Whether there was conflict of interest on the part of the 6th and 7th defendant.c.Whether the goods were actually delivered.d.Whether the payment of Kshs 24,999,600.00 to the 1st defendant was lawful and if not, who is among the defendants is liable to restitute the government through the plaintiff. Whether the procurement of the flour was marred with illegalities or was in breach of the law. 179.The plaintiff has submitted that the procurement method which resulted to the execution of the framework agreement dated 23-03-2020 was not lawful as it did not comply with Section 114 of the Public Procurement and Assets Disposal Act (hereinafter referred to as ‘the Act’). That Section provides as follows;A procuring entity may enter into a framework agreement open tender if—a.the procurement value is within the thresholds prescribed under Regulations to this Act;b.the required quantity of goods, works or non-consultancy services cannot be determined at the time of entering into the agreement; andc.a minimum of seven alternative vendors are included for each category.’ 180.It is not in dispute that the procurement of the food in question was through an open tender. The plaintiff’s own witnesses especially the investigating officer and PW2 testified as much. Actually, the investigating officer is on record stating in both evidence in chief and cross-examination that he had no problem with the manner in which the procurement was done. All the other witnesses who testified on this aspect were categorical that the procurement was lawful. There was no allegations or statement that the tender committee and the evaluation committee did anything wrong the process of the procurement. No bidder complained or appealed the decision to award the of the tender to the 1st defendant. 181.The plaintiff argues in its submissions that the identification and appointment of the 1st defendant alone was in violation of Section 114(1) (c) of the Act since no other suppliers other than the 1st defendant were involved. The plaintiff goes further to submit that, it has not been shown or demonstrated that there were other suppliers and as such the court should infer that the procurement was unlawful. The position of the law is that the plaintiff was the one carrying the burden of proof and not the other way round. 182.It is notable that none of the defendants was an accounting officer or head of procurement or supply chain department. The 1st defendant saw and responded to the tender together with others and won which was then followed by a framework agreement. It was obviously not its business to ascertain who the other pre-qualified suppliers of the food or goods in that category were. The people who were bound by the law to ensure compliance with that Section were left out of the suit and became witnesses and even as witnesses, they did not allude to the unlawfulness of the procurement based on that Section. It would not have been expected that the said witnesses would to give evidence against themselves. 183.The plaintiff has taken issue with the addendum which extended the framework agreement or extension of the tender when there was no provision of extension of the same. It has been submitted that Section 114(2) of the Act requires that a framework agreement be for a maximum of three years and an agreement exceeding one year be subjected to a value for money assessment. In my view purposive interpretation of this would mean that the framework agreement could not have extended to an accumulative period of more than three years. 184.The plaintiff has also submitted that such an extension should have been subjected to an evaluation committee before being approved by the Accounting Officer as required under Section 139 of the Act. This is a misrepresentation or misinterpretation of the provisions of that Section. The Section deals with variation and amendment of an agreement which is clearly different from extension. Other than the extension of the period, there were no variations, change or amendment of the terms of the agreement in the addendum dated 8-02-2021 which was produced as the plaintiff’s exhibit 11. In her evidence in chief PW2 did not talk of any illegalities of the addendum and of course she could not do so because she is the one who signed it on advice from the County Attorney and in that regard I don’t find that argument merited. 185.Even if I were to agree that the extension should have been subjected to the evaluation committee for recommendation, I do not think that a supplier has a role to play in the decisions of an evaluation committee. It is on record that the 1st defendant was called to the government office for execution of the addendum and in my view, it did not have to inquire on the internal operations of the government. If there is a culprit for this addendum, it should be PW2 and the County Attorney who executed the contract on behalf of the government. 186.I also note that the supply in question was not the last one based on the framework agreement and its addendum. The 1st defendant made a fourth supply which was pursuant to the same agreement but the plaintiff concentrated on the third supply. If indeed the extension was unlawful, one should wonder why the fourth supply did not form part of the plaintiff’s efforts to recover. This leads me to believe that the plaintiff focused on this third supply because of the perceived anomalies in the delivery notes and documentation of the same and not because of the illegality of the agreement or its addendum. That is why all the evidence produced sought to prove that there was no supply rather than illegality of the procurement process. 187.I said the above to bring into the light what is contained in the plaintiff’s submissions on the aspect of illegality. It is not lost to me that the same issues were raised in the submissions but are nowhere in the pleadings of the plaintiff. They should have at least come from the evidence of the parties and not purely in the submissions from the bar. Raising the same in the submissions seems to me to be an afterthought coming after the completion of the trial. 188.In the whole of the amended plaint, there is no plea of illegality based on failure to adhere to the law. The particulars of fraud, breach of trust, misrepresentation and abuse of office touched on conflict of interest and falsifying of documents to fake supplies. Even when it came to the prayers, the amended plaint sought to declare illegal the agreement dated 23-03-2020 null and void on account of illegalities and procurement irregularities and said nothing about the addendum meaning that if the court were to find the agreement dated 23-03-2020 lawful and regular, there would be no issues to take with the addendum. 189.It is trite that parties are bound by their pleadings and any evidence or prayer that seeks or goes outside the four corners of the pleadings must be disregarded. Having said that I hold that the submission on the illegality as indicated above are not admissible and I will not take them into consideration. It was held in Mugo & another v AKM (Minor suing through next friend and mother AMK) [2018] KEHC 5871 (KLR), thatIt is a trite principle of law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments of the pleadings should not be considered. The rationale for this is to prevent parties from being ambushed since the rules of procedure requires that all the parties are on an equal footing when they appear before the court to litigate their cases.’ Conflict of interest 190.The allegations of conflict of interest touched on the 6th and 7th defendants. The two have not been accused of making any of the documents which are the basis of the suit but there is a general statement in the pleadings and testimony of some of the witnesses that they influenced the award of the tender. The case against them is connected to the allegations that they are husband and wife and daughter in law and son to the 8th defendant respectfully. 191.The plaintiff’s evidence purportedly connecting the 7th defendant as son to the 8th defendant is based on allegation of a form for declaration of the next of kin which was produced as plaintiff’s exhibit 48 that is said to have been filled and signed by the 6th defendant and which the plaintiff retrieved from the government’s employees’ records. The 6th defendant denied filling that form and stated that such forms always bear the logo of the government. 192.I have looked at the form and I do agree with the 6th defendant that there is nothing in it that connects it to the 6th defendant. The plaintiff was well aware that the 6th defendant was denying execution of the form. I take judicial notice that the plaintiff is endowed and has capacity to investigate and examine documents. It has internal competent documents examiners at their disposal and even if they didn’t have, the Directorate of Criminal Investigations is at their disposal and there are private experts who the plaintiff could retain for purpose of unlocking this contest. It would have been a simple act of subjecting that document to an examiner in order to nail that point. At the very least, the plaintiff should have called someone from the government’s Human Resources department to confirm whether that is what is in their records. 193.In addition, I note that the marriage certificate which was produced by the plaintiff as its exhibit 49showed that the father of the 7th defendant is one Akale Julius. The 6th and 7th defendants repeated the same in their testimony which I found consistent and unchallenged. The 8th defendant stated that he was order than the 7th defendant by ten years only and therefore he could not possibly be his father which I find logical. The 7th defendant produced his birth certificate as defence exhibit 23 which shows that his father was Julius Lolowi Logwamu. This opposing position would have been solved by the plaintiff’s investigator simply walking into the registrar of persons and retrieve records of the parents of the 7th defendant of which information I also take judicial notice that it is supplied during registration and kept by the registrar. All these factors combined lead me to the conclusion that there is no evidence that the 8th defendant is father-in-law to the 6th defendant or father to the 7th defendant. 194.The other aspect on the case against the 6th and 7th defendant is the allegations that they traded with the government because they had interest in the 1st defendant. The evidence produced before me on the history of the 1st defendant show that the 1st defendant was established on 18-02-2013 by the 6th defendant, 7th defendant, one Samuel Ekeno Edapal and 8th defendant on 3-12-2019 On 12-04-2019, the 6th defendant and Samuel Ekeno Edapal resigned as directors. On 11-04-2019, Samuel Ekeno Edapal transferred his 300 shares to the 7th defendant while the 6th defendant transferred 100 shares to Emmanuel Ekorot Endapal and 100 shares to the 7th defendant. This second change meant that Samuel Ekeno Edapal and the 6th defendant ceased to be either director or shareholder of the 1st defendant. On 3-12-2019, the 7th defendant resigned and forfeited all his 700 shares to the company meaning that he no longer had interest in the 1st defendant. This information is contained in the plaintiff’s own exhibit number 47. 195.The plaintiff has claimed that the 6th and 7th defendants are beneficial owners of the 1st defendant but no evidence to that effect has been placed before me. The plaintiff has not placed any evidence before this court to show or suggest that the two defendants shared or received any money, dividends or benefits from the 1st defendant after they resigned from it neither is there evidence that they have control over its operations. 196.The law requires that limited liability company should file returns disclosing their beneficial owners. The plaintiff did not produce any register of beneficial owners before the court. PW13 only told the court by word of mouth that the 6th and 7th defendants were beneficial owners of the 1st defendant but when he was cross-examined, he admitted he did not have evidence of the alleged beneficial ownership linking the two defendants to the 1st defendant. He also admitted that he did not have any evidence to show that the two defendants and the 8th defendants influenced the award of the tender. Assets Recovery Agency v Gethi [2026] KECA 473 (KLR) 197.The plaintiff may have had its reasons for suspecting that the 6th and 7th defendants were beneficial owners of the 1st defendant but no amount of suspicion should lead the court to make a finding against a party without tangible evidence. This was the plaintiff’s case and it was its duty and I believe had the capacity to prove on a balance of probabilities that the said defendants were beneficial owners. In Assets Recovery Agency v Gethi [2026] KECA 473 (KLR) the Court of Appeal held that;As was emphatically held in Kuria & 3 Others v Attorney General [2002] 2 KLR 69, mere suspicion, however grave or compelling, cannot substitute for proof. The Court therein cautioned that conjecture or speculative inference is insufficient to discharge the evidential burden required in judicial proceedings.’ 198.In view of what I have stated above and the fact that the case against the 6th and 7th defendants was simply tied to their perceived relationship and status with the 1st and 8th defendants, I must return a verdict that the case against them has no merits. Even if I were to find that the goods were not delivered, that would not affect my decision in respect of the 6th and 7th defendants. Whether the goods were actually delivered 199.On whether the goods were delivered, the plaintiff has leveraged its case on the discrepancies on the delivery notes in respect of the registration numbers of some of the motor vehicles and the weight of the bags; the fact that the Equatorial’s evidence was that only 2,450 bags were bought from them and were supplied on 29-05-2021 and not within the period of the alleged delivery; the evidence of KENHA that the vehicles indicated in the delivery notes were not captured in their weighbridges and that some vehicle shown to have delivered the food did not have the capacity to carry the indicated loads. On their part, the defendants have relied on evidence from some government workers who claimed to have witnessed the delivery, one of the suppliers and the 1st defendant’s employees or agents who have made efforts to establish that the goods were delivered. 200.The plaintiff claims that the incontinency of the information and pattern of forgery of documents which were retrieved from the government are enough circumstantial evidence which establishes that there was no delivery and as such the burden of proof shifts to the defendants to prove the delivery. This it claims is because the issue of delivery was in special knowledge of the defendants and puts reliance on Section 112 of the Evidence Act. This in my view is the wrong approach. The burden of proving this case on a balance of probability lies on the plaintiff. 201.The delivery notes cannot be said to have been in special knowledge of the defendants yet the government’s own employees were available but decided to testify on the defence side and yet the documents relied on by the plaintiff were retrieved from the same government. And even where the government employees testified on the side of the plaintiff, they did not expressly indict the defendants. Section 112 of the Evidence Act was not meant to whimsically shift the burden of proof from the party who in law bears it. It was meant to avoid situations where a party with special knowledge of a fact of evidence would withhold it from the court to deliberately frustrate the opponent’s case. In addressing the purport of the said Section Honourable Justice Kizito Magare held in Nyabuto & 2 others v G4S Company Limited & 2 others [2026] KEHC 200 (KLR) that;Ordinarily, people with borderline cases lie, hoping that the lies may convince the court. Those without cases run away since testifying will implicate them. This is what section 112 of the Evidence Act is for.’ 202.The plaintiff must produce evidence such that, if the defendants were not to give any evidence in rebuttal or the evidence given was not enough to rebut the plaintiff’s version on a balance of probabilities, there would be justifiable and sufficient evidence that the case has been proved. Under Section 3(4) of the Evidence Act a fact is not proved when it is neither proved or disapproved. That means that if there were to arise a situation where the court cannot decide which of the two versions between the plaintiff’s and the defendants’ is more probable than the other, the plaintiff’s case must be lost. The Court of Appeal held in Kenneth Nyaga Mwige v Austin Kiguta & 2 others [2015] KECA 334 (KLR) that;When called upon to form a judicial opinion whether a document has been proved or disproved or not proved, the Court would look not at the document alone but it would take into consideration all facts and evidence on record.’ 203.I will start with the issue of the motor vehicles. The plaintiff called PW5, PW6, PW7 and PW9 who testified that motor vehicles registration numbers KCY 884Z, KBQ 177H, KCU 322U and KCC 402G were not hired to transport the food to Turkana on the dates indicated in the delivery notes and form S13. Motor vehicle KBQ 177H was even said to have been grounded on the dates indicated. To rebut or explain this position, the defendants called Silas Akisali (DW13), Yohana Lokoyo (DW8), Harry Kidiga (DW9) and the 5th defendant (DW2) who were involved in the purchasing and loading and receiving of the food and who testified explaining that the entry or recording of the registration numbers of the vehicles were errors which were detected and corrected later. The 5th defendant testified that the errors were attributable to fatigue and claimed that the errors were later amended but the amended copies were not produced in court. They claimed that the lack of the amended copies should be explained by PW13 who allegedly took the amended copies together with other documents and never returned them. 204.I may not be able to ascertain which of the two version of the story is true but in my view entry of wrong details of the motor vehicles cannot alone be proof of lack of delivery. The discrepancies must be examined together with the other pieces of evidence available as the details of the motor vehicle is just one component of proof of delivery. To convince the court to find in its favour on this aspect, the plaintiff must show that the discrepancies were deliberately made with intention of defrauding the government. This being an element of fraud, it must be proved on standard higher than balance of probabilities. 205.The above position has been restated by the courts in many cases. Just to cite one of them, the Court of Appeal held in Nancy Kahoya Amadiva v Expert Credit Limited & another [2015] KECA 373 (KLR), thatWe have previously held that in cases where fraud and/or misrepresentation is alleged, it is not enough to simply infer fraud from the facts. In Vijay Morjaria v Nansingh Madhusingh Darbar & another [2000] eKLR Tunoi JA (as he then was) stated as follows:It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must of course be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and as distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.” (Emphasis ours).’ 206.In order to support its position on the discrepancy in the motor vehicles details and the alleged lack of delivery, the plaintiff called PW4 who testified that the vehicles were not captured in any of the KENHA’s weighbridges in the dates they were alleged to have delivered the food. That may be so but this court appreciates that there are instances where drivers avoid routes with gazetted weighbridges. PW9 owned up to the fact that he deliberately avoided the weighbridges. PW4 herself confirmed that it is possible to evade weighbridges and that there are instances where transporters have been arrested for doing so. I appreciate that avoiding KENHA weighbridges is an offence with its own punishment, but that is an issue for another forum. The defendants especially the 1st defendant cannot be punished by being denied what was due to it because of an offence or mistake of a third party who was by all descriptions an independent contractor and who it paid. 207.PW9 testified that he supplied the 3,600 bags which is what he could manage whereas the 1st defendant and its witnesses stated that it sourced the remaining of 2,450 bags from Equatorial. The government’s own employees who testified on behalf of the defendants with official permission of their bosses confirmed that the deliveries were done. They were not subjected to any investigations and in my analysis, I do not see the reason for them to lie to this court and from their demeanour which I observed, I find their evidence consistent and believable. 208.The plaintiff has also held onto the fact that the delivery notes issued by Equatorial had a date of 29-05-2021 which was after the date of delivery shown in the government’s records. This was explained by DW11 that the consignment was released from the factory on 17th May 2021 but the documents were picked on 29-05-2021 when the payments were done. PW11 who testified to this issue was obviously not present when the consignments were loaded as he was based in Nairobi while the loading was done in Murang’a. He relied o documents which he was not the maker. Again, I have two conflicting versions which call for my balancing. When I weigh this against the evidence of the defendants especially DW5, DW6 and the 5th defendant who were government officers and the fact that PW2 who was the Chief Officer during the supply did not make a conclusive statement that the goods were not supplied, yet she was the one who appointed the inspection and acceptance committee I am inclined to believe the defendants’ version more than the plaintiff’s. 209.The last issue I had identified above is whether the payment to the 1st defendant was lawful. Having found against the plaintiff in the first three issues, the obvious conclusion in this last issue is that the payment was lawful and hence not recoverable from any of the defendants. Conclusion 210.In view of the above analysis, I come to inevitable conclusion that the procurement of the food was lawful, there was no proof of conflict of interest against the 6th and 7th defendants, the food was supplied and the payments made to the 1st defendant was lawful. In the circumstances, I find that the plaintiff has failed to prove its case against the defendants on a balance of probabilities. The suit is dismissed with costs to the defendants. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 8TH DAY OF MAY 2026.B.M. MUSYOKIJUDGE OF THE HIGH COURT.Judgment delivered in presence;Miss Baithalu for the plaintiff;Mr. Bigambo for the 1st, 6th, 7th and 8th defendants; andMr. Suge for the 2nd, 3rd, 4th and 5th defendants.