https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9708

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT SIAYA** **CIVIL APPEAL NO. E080 OF 2025** **HARMBICON TECHNICS LIMITED………………..………… APPELLANT** **VERSUS** **JEPKOECH PAMELA BOMERT T/A SWINDON BUILDING ENGINEERS………………………………..…………..……1ST RESPONDENT** **RANGALA MISSION HOSPITAL THROUGH THE TRUSTEES OF ARCHDIOCESE OF KISUMU………….….………………2ND RESPONDENT** **(Being an appeal from the Judgement and Decree of the Chief Magistrate Court delivered by Hon. Mkala Jacob Punga,(RM) in Siaya CMCC No. E058 of 2024 delivered on 10/9/2025)** **BETWEEN** **HARMBICON TECHNICS LIMITED ………………………………PLAINTIFF** **VERSUS** **JEPKOECH PAMELA BOMERT T/A SWINDON BUILDING ENGINEERS…………………………………………………..1ST DEFENDANT** **RANGALA MISSION HOSPITAL THROUGH THE TRUSTEES OF ARCHDIOCESE OF KISUMU………………………..…….2ND DEFENDANT** **JUDGMENT** 1. The appeal herein arises from the judgment of Hon. Mkala Jacob Punga, SRM dated 10/9/2025 in Siaya CMCC No. E058 of 2024 wherein he held that the Appellant failed to prove its claim on a balance of probability and dismissed the suit with no orders as costs. 2. The Appellant was aggrieved and duly filed its Memorandum of Appeal dated 7th October 2025 wherein it raised the following grounds of appeal namely; - 3. The learned trial Magistrate erred in fact and law by failing to appreciate and make a finding that, under the Kenyan laws, an agreement may be oral, written, implied or established by conduct. 4. The learned trial Magistrate erred in fact and law by failing to interrogate the material evidence on record, and make a finding that the structural drawings submitted by the Plaintiff to the 2nd Defendant and accepted by the 2nd Defendant for the Proposed Alterations to the Existing Hospital for Rang'ala Mission Hospital were prepared and drawn in the name of the Plaintiff. 5. The learned trial Magistrate erred in fact and law by failing to appreciate the fact that the 1st Defendant admitted that the structural drawings submitted by the Plaintiff to the 2nd Defendant were accepted by the 2nd Defendant and used by the 2nd Defendant to procure the requisite development approvals for the Proposed Alterations to the Existing Hospital for Rang'ala Mission Hospital from the County Government of Siaya. 6. The learned trial Magistrate erred in fact and law by failing to interrogate the material evidence on record, and make a finding that the conduct of the 2nd Defendant in holding physical meetings with the Plaintiff, accepting and using the Plaintiff's structural drawings for the proposed Alterations to the Existing Hospital for Rang'ala Mission Hospital constituted an enforceable contractual relationship between the Plaintiff and the 2nd Defendant. 7. The learned trial Magistrate erred in fact and law by failing to interrogate the material evidence on record and appreciate the fact that the 2nd Defendant, on behalf of and under the instructions of the 2nd Defendant, organized for the physical meetings held between the Plaintiff, other involved consultants, and the 2nd Defendant. 8. The learned trial Magistrate erred in fact and law by failing to interrogate the material evidence on record, appreciate and make a finding that the Plaintiff fully delivered its obligations on the various stages involved in the provision of professional engineering services required before the tender stage. 9. The learned trial Magistrate erred in fact and law by failing to interrogate the material evidence on record, to appreciate, and make a finding that the 2nd Defendant breached the contract by failing to pay the Plaintiff for the structural engineering services rendered to the 2nd Defendant in respect of the Proposed Alterations to the Existing Hospital for Rang'ala Mission Hospital. 10. The learned trial Magistrate erred in fact and law by failing to interrogate the material evidence on record, and make a finding that the Plaintiff is entitled to the amount of Kshs. 3,535,351.60/= due for the structural engineering services rendered to the 2nd Defendant in respect of the Proposed Alterations to the Existing Hospital for Rang'ala Mission Hospital. 11. The learned trial Magistrate erred in fact and law by failing to interrogate the material evidence on record, to appreciate, and make a finding that is entitled to damages for breach of contract. x) That the learned trial Magistrate totally misdirected himself in delivering Judgment in favour of the Respondent by failing to consider and appreciate the Appellant's claim, pleadings, evidence on record, submissions, authorities, and the interest of justice in the wide spectrum. The Appellant therefore seeks orders that this Appeal be allowed and the Judgment dated 10th September, 2025 be set aside and this Honourable Court allows the Appellants prayers as sought in its Plaint and that the costs of the suit and Appeal be granted to the Appellant against the Respondent. 1. This being the first appellate Court, its duty is well spelt out namely, to re-evaluate the evidence tendered before the trial Court and to arrive at its own independent conclusion. The Court will also have to take into account the fact that it did not see or hear the witnesses as they testified. See Selle vs Associated Motor Boat Company Limited [1968]E. A. 123. 2. The Appellant had lodged suit vide a plaint dated 3rd July 2024 in which he sought for the following reliefs; 3. A declaration that the Plaintiff is entitled to the amount of kshs. 3,535, 351.60/- due for the structural engineering design and drawings works already completed by the Plaintiff. 4. A declaration that the Defendant’s action of removing the representative of the Plaintiff from the WhatsApp group where all communication regarding the project was being channeled through, without any explanation/justifiable reason amounted to unlawful and illegal termination of the contract between the Plaintiff and the Defendants. 5. Kshs. 3, 535, 351.60/- due for the structural engineering design and drawings works already completed by the Plaintiff. 6. Damages for breach of contract. 7. Interested at Court rates on (c) and (d) above till repayment in full. 8. Costs. 9. The trial commenced earnest on 2/4/2025 wherein the Appellant’s director Harrison Musembi (PW1) adopted his witness statement dated 20/2/2025 as his evidence in chief which was inter alia; that on or around 24/4/2023 the 1st Defendant engaged Engineer Harrison Musembi, the Director of the Plaintiff Company to review the initial existing County approved Architectural and structural drawings for Rang’ala Mission Hospital which were approved by Siaya County in April 2021; that on or around 7/5/2023, upon completion of the review works, the 2nd Defendant through the 1st Defendant, its agent, and/or main contractor, contracted the Plaintiff through its director, Engineer Harrison Musembi to undertake alterations to structural engineering design and drawings for the proposed alterations to the existing hospital for Rang’ala Mission Hospital on plot No. LR South Ugunja/Rangala/792 situated at Ugunja in Siaya county (hereinafter “the project”) involved engineers the preliminary structural foundation layouts for their review; that on or around 30/5/2023, they completed and submitted the final Structural Engineering Designs Drawings to the 1st Defendant and other Project Consultants, Architect, Electrical Engineer, Mechanical Engineer, and Quantity Surveyor, for their review before the final submission of the drawings to the 2nd Defendant for final approval or review before the final submission of the drawings to the 2nd Defendant for final approval; that on or around 19/6/2023, during a physical meeting held at the 2nd Defendant's hospital premises Plaintiff then submitted the final Structural Engineering Design and Drawings which had been previously approved by the 1st Defendant and all the other involved Project Consultants on 30/5/2023, to the 2nd Defendant for their final review and before final approval; that on or around 22/6/2023 and 23/6/2023, upon approval by all the Project Consultants, Architect, Electrical Engineer, Mechanical Engineer, and Quantity Surveyor, Plaintiff then submitted the Structural Engineering Designs and Drawings to the 2nd Defendant for their approval and on submission to the Siaya County for purposes of obtaining the requisite approvals for commencement of the said Project; that its claim is that despite delivering on their mandate, and sending their invoices, the Defendants blatantly refused to pay them. On cross-examination, he stated inter alia; that he was introduced to the project by Nixon Oloo; that it was an oral contract with the 2nd Defendant for review works only; that he sent an invoice to the 1st Defendant who accepted the same; that he has not brought evidence to show that the 1st Defendant is the project manager of the 2nd Defendant; that he has no minutes of the meeting; that he has not brought any Board members as witnesses; that the Plaintiff is a consulting firm; that they were not tendering; that they have provided photographs of their visit; that they do not have site inspection. 1. Pamela Chepkoech Bomet (DW1) testified that she is a civil engineer. She adopted her witness statement dated 18/12/2024 as her evidence in chief. She also relied on her list of documents which were produced as Defence exhibits 1-8. On cross-examination, she stated inter alia; that there was no representative of the Plaintiff in the meeting of 15/3/2023; that the building at Rangala was to be redesigned on the structural aspect so as to feature a modern building which can last more than two hundred years; that there was another meeting which was to be held on verification or review of the architectural drawings; that the writing resolved that the 2nd & 3rd floors were to be constructed; that professionals were to be taken to site to familiarize themselves; that it is true that they had engaged Harrison Musembi to do the review; that it was after the review that they decided to build the 2nd & 3rd floors; that there was a meeting for the consultant at Rangala Mission Hospital; that the consultants were all there who proposed that the alterations be done; that the preliminary drawings were done by Kiragu; that Musembi came to review and did alteration; that Musembi was to review what was already there; that the documents by Engineer Kiragu was for proposed alteration to existing wards to Rangala Mission Hospital; that it is true that there was a meeting on 16/6/2023 at the 2nd Defendant’s premises; that no final drawings were presented to the 2nd Defendant; that she could not see any photographs; that there were photos presented to the 2nd Defendant; that on 29th and 30th November 2023 the documents were approved by the County Government; that there was no agreements regarding payment of professional fees; that there was no BQ done by the Engineer Nixon Otieno. 1. The learned trial magistrate later considered the evidence and came up the impugned judgement. 2. The appeal was canvassed by way of written submissions 3. The Appellant first reiterated and gave a summary of the Appellant’s case as was presented before the trial court and which was inter alia; that on or about 24/4/2023 the 1st Defendant engaged Eng. Harrison Musembi, (Director of the Plaintiff), to review existing County-approved structural drawings originally prepared by Eng. Stephen Kiragu in 2021 for Rang'ala Mission Hospital on Plot No. LR South Ugunja/Rangala/792; that following the review, the 1st and 2nd Defendants agreed on the need for alteration drawings to modernize the facility for 200-year durability – including additional floors) 2nd, 3rd and 4th) surgical maternity and recovery units, theatres, bathrooms in wards, disabled access, and pediatric PVS relocation among other alterations/modifications; that it was agreed that a site meeting with the professionals to be involved in the alteration project would be held, chaired by the Project Manager, and that the profiles of the Architect, Structural Engineer, and other consultants be availed at the site meeting; that on 7/5/2023, the Plaintiff was then engaged by the 2nd Defendant, through its agent/project manager (1st Defendant), to provide structural engineering design services for the Proposed Alterations to the Existing Hospital for Rang'ala Mission Hospital on Plot No. LR South Ugunja/Rangala/792 situated at Ugunja in Siaya County (hereinafter "the project"); that on 12/5/2023, the 1st Defendant sent a WhatsApp invitation on behalf of the 2nd Defendant for the onsite meeting at Rang'ala Mission Hospital. During this meeting, the Plaintiff (via its Director) was formally appointed as the Structural Engineer. Other consultants, including Architect and Quality Surveyor, were also engaged; that between May and June 2023, the Plaintiff diligently prepared the preliminary drawings for the alterations, held consultations with all relevant project consultants via the WhatsApp Group, and submitted preliminary drawings and 1st final detailed drawings, which were approved by all stakeholders and by the client; that the 2nd Defendant on various dates including during the onsite meeting of 19/6/2023 at Rang'ala hospital; that on or about 22nd-23rd June 2023, the Plaintiff submitted final detailed structural designs to the 2nd Defendant via WhatsApp and email (to Sister Agnes) for final approval of Siaya submission; that on 24/6/2023, the consultants agreed that 16.5% of the total construction cost would constitute their collective professional fees, distributed as: Architect – 6%, Quantity Surveyor – 2.5%, Civil/Structural Engineer (Plaintiff) – 3.5%, Mechanical Engineer – 2.5%, and Electrical Engineer – 2.5%. The total construction cost for the project as per the Bill of Quantity prepared by the QS on 29/6/2023, was Kshs. 149,153,480/-, including the 16.5% Kshs, 21,124,742/= in consultancy fees; that on 27/6/2023, during a physical handover of the drawings at the 2nd Defendant's hospital, the 2nd Defendant approved and accepted all final drawings and submitted them to Siaya County through Mr. Dan Cheruiyot and Bandi Bundi representative of B.K. Homes, for statutory approvals; that on 18/10/2023, the Plaintiff raised an invoice of Kshs. 3,726,853.45 for 80% of the works completed, based on the agreed 3.5% and excluding the Kshs 14,000,000/= medical gases costs; that on or about 18/11/2023, the 1st Defendant advised that the 2nd Defendant would not retain the Plaintiff for the construction phase and requested a revised Invoice based on the Engineers’ Scale of Fees and that the Plaintiff complied and issued a revised fee note dated 27/11/2023 for Kshs. 3,535,351.60 per Legal Notice No. 20 of 2022; that on 29th and 30th November 2023, the Siaya County Government approved the submitted drawings and issued the requisite building permits to the 2nd Defendant; that on 7/12/2023, the Plaintiff was removed from the consultants’ WhatsApp Group without notice or compensation for the work done. 4. It was submitted that the trial Magistrate did not consider material evidence and documents produced as exhibit in the suit such as structural drawings, approvals and invoices issued by the Appellant/Plaintiff in demanding for payment for services rendered. That in framing the issue for determination, the trial Court did not consider any of the issues raised by the Appellant, that is whether there was contractual relationship emanating from contract which had been performed by the Appellant and in turn had enabled the 1st Respondent to carry on with construction of the 2nd Respondent’s hospital buildings. That the trial Court in reaching its verdict disregarded all the material evidence produced before it and arrived at unfounded decision. That it is crucial to note that the 2nd Respondent did not file any defence nor participated in the matter by either calling witnesses and/or producing documents to rebut the Appellant’s evidence in support of its claim and hence, the Appellant’s evidence was uncontroverted and ought to have formed the basis of the trial Court’s judgment. 5. It was also submitted that the trial Court misconstrued and misinterpreted the law in holding as follows: Was **there a contract between the Plaintiff and the two defendants. I have gone through all documents produced as exhibit by the Plaintnot come across any agreement between the Plaintiff and the Defendant, no terms of reference have been produced within which the Plaintiff was engaged"** It was contended that in so holding, the trial Court did not appreciate there can be valid contract established either by conduct or orally. 1. It was submitted that the Respondent’s conducts alone in this matter in accepting and using the Appellant’s structural drawings to obtain approval from the County government and using the same drawings in enabling the 1st Respondent to carry on the construction of the building was more than enough evidence that a contract existed which created contractual obligations including payment for services rendered. Reliance was placed in the case of **Total Kenya Ltd versus Joseph Ojiem (Nairobi HCCC NO. 1243 of 1999)** where the court held thus: **"Parties to a contract that they have entered into voluntarily are bound by its terms and conditions".** It was thus urged that the Respondents are liable to pay for the services as non- payment amounts to a breach of contract. 1. It was submitted that it is clear that the trial Court erred in law and fact in finding that the Plaintiff’s Claim falls after having discharged its evidential burden and proving its case on balance of probability. That the Appellant clearly demonstrated in its Pleadings, evidence and exhibit that there existed a valid contract and had performed and discharged all its contractual obligations and duties and therefore entitled to payment for the services rendered and a denial of such payment amounted to breach of contract. That during the trial, DW-1 confirmed that the 1st Respondent initially engaged Eng. Harrison Musembi, in his personal capacity, to review architectural/structural drawings originally prepared by Eng. Stephen Kiragu in 2021. Further the 1st Respondent produced minutes at pages 10-12 of the 1st Defendant’s list of documents confirming that the 1st and 2nd Respondent had a discussion on review on the drawing by Eng. Stephen Kiragu noting that the alteration to the drawings was necessary to modernize the hospital to include a second, third and fourth floors, surgical maternity, recovery unit, additional theatres, bathroom in wards, provisions for physically challenged persons and relocation of the PVS at the pediatric area, among other proposals. 2. As to whether there existed the contractual relationship between the Appellant and the 2nd Respondents, it was contended that the trial court disregarded the Appellants submissions that all the requisite conditions for a contract were met as follows: a) Offer - On 12/5/2023 at a site meeting held at Rang’ala Mission Hospital, the Appellant was formally tasked with preparing structural drawings for the proposed alteration as per the WhatsApp printouts on pages 19-20 plus the Appellant’s Supplementary List of documents and bundle dated 19/2/2025 and also including the minutes at pages 10-12 of the 1st defendants list of documents dated 28/8/2024 confirming the agreement between the Defendants on the need for alterations of the hospital. b) Acceptance - The Appellant submitted preliminary drawings on 23/5/2023-26/5/2023, first final drawings on 30/5/2023 and final detailed drawings on 22/6/2023 all which were accepted by the 2nd Respondent without objection and submitted to Siaya County for statutory approval and issuance of construction permits, which were indeed issued by the Siaya County on 29/11/2023 & 30/11/2023. This is evidenced in the Plaintiff’s supplementary list and bundle of documents by:- Whatsapp submissions of preliminary drawings page 21-24 produced as exhibit 5, submissions of first final drawings page 25 produced as exhibit 6, photos and messages from the 19/6/2023 meeting confirming the approval of the first final drawings page 25 produced as exhibit 7. Whatsapp submissions of final drawing of preliminary drawings on 22/6/23 page 27 produced as exhibit 8, email dated 23/6/2023 confirming digital delivery of final drawings page 35 produced as exhibit 9, email dated 24/6/23 by Eng. Nixon Oloo confirming dispatch of hard copies page 36 produced as exhibit 10. Whatsapp photos and messages from the 27/6/2023 meeting confirming approval and handover for submission to Siaya County Government page 40 produced as exhibit 12, page 69-72 produced as exhibit 19 confirming approvals of the drawings by Siaya County. c) Consideration - on or about 24/6/2023 the 1st Respondent who was acting as the project manager of the 2nd Respondent and the rest of the consultants agreed that 16.5% of the total construction cost would be apportioned as consultancy fees, of which 3.5% was allocated to the Appellant. See Plaintiff exhibit 11 (whatsapp print outs page 37 of the Plaintiff’s supplementary bundle of documents dated 19/2/2025,) Further the Bills of Quantities issued on 29/6/2023 by the quantity surveyor engaged by the Defendants confirmed the construction costs as Kshs. 149,153,480/- from which Kshs. 21,124,742/= was allocated as consultancy fees. See Plaintiff’s exhibit 13, page 41 of the Plaintiff’s Supplementary Bundle of documents dated 19/2/2025. d) Intention to create legal relations - The 2nd Respondent convened and hosted the 12/5/2023 inception meeting, reviewed, corrected and accepted the Appellant’s drawings at meetings on 19/6/2023 and 27/6/2023 and submitted them for county approval. The Construction permits were issued on 29/11/2023 and 30/11/2023. The Appellant’s services were rendered under the Engineers Act, 2011 and the Engineers’ Scale of Fees (Legal Notice No. 20 of 2022). As a formal institution, the 2nd Respondent could not have intended a non-binding arrangement with a legally registered consultancy professional firm. 1. It was submitted that the contract was thus performed by conduct and mutual intent, consistent with Section 3 (1) of the Law of Contract Act, Cap. 23. Reliance was placed in the case of **Ali Abid Ali Abid Mohammed versus Kenya Shell & Company Limited (2017) eKLR** where the court affirmed that conduct can establish enforceable contracts. The Court stated that:- **"it therefore follows that a contract can exist where no words have been used but where it can be inferred from the conduct of the parties that a contract has been concluded."** 1. Learned counsel posed the question whether it is proper for the 2nd Respondent to get permits and approvals based on drawings that had been undertaken by the Appellant and blatantly refuse to pay. The Appellant therefore urged this court to agree with the Appellant’s submissions that engagement between the Appellant and the 2nd Defendant is legally enforceable and that the 2nd Defendant is liable for outstanding professional fees for services rendered. 34. The Appellant took great issue with the trial Magistrate who dismissed the Appellant’s suit on the ground that there was no locus standing. That the learned magistrate stated as follows: **"The Plaintiff further claims that the 1st Defendant approached their director one Harrisson Musembi, I note that the Plaintiff is a limited liability company with powers to enter into agreement with any person. If it was their Director who was engaged in his personal capacity, where does the Plaintiff get the locus on behalf of its dir**ector? It is my finding therefore, that the Plaintiff had no capacity to sue on behalf of Harrison Musembi." It was contended that the learned magistrate disregarded salient facts inter alia; that the suit was instituted by the Plaintiff as a company was represented by Harrison Musembi as its sole Director as evidenced by the copy of the CR-12 produced in court as evidence (page 205 of the Record of Appeal); that the engagement was between the Plaintiff and the Respondents as evidenced in their correspondence referring to services by the Plaintiff. 1. As to whether the Appellant is entitled to payment including damages, it was submitted that the trial court disregarded the fact that on 18/10/23 the Appellant issued a fee note for 80% of its 3.5% share, based on Kshs. 114,028,738 (after deducting medical gases of Kshs. 14,000,000/- noted as point 4.02 in the Bill of Quantities prepared by the QS on 29/6/23. Breakdown: - 80% of 3.5% of Kshs. 114,028,738.00 - Kshs. 3,192,804.70. - Miscellaneous expenses (Lithographic Charges) = Kshs. 20,000.00 - Sub-total = Kshs. 3,212,804.70 - Add 16% VAT = Kshs. 514,048.75 Total amount due = Kshs. 3,726,853.45 See Plaintiff exhibit 13 and 15 1. It was also submitted that the 2nd Defendant communicated to the Appellant that it would be retained for the construction phase and requested for a revised Invoice limited to design and shell works and that in compliance, the Appellant issued a revised fee note on 27/11/2023 for Kshs. 3,535,351.60 based on the Engineers’ scale of fees under Rule 25(2) which confirms the 3.5%-4.4% applicable range for civil/structural engineering services. That the Defendants received and approved the Appellant’s deliverables, submitted them to regulatory authorities and obtained permits based on those deliverables. Hence, the drawings to Siaya County government which were approved on 29/11/2023 & 30/11/23 confirms the completion and sufficiency of the Appellant’s works. It was thus contended that the revised fee note of Kshs. 3,535,351.60 is valid and legally enforceable and that the 2nd Defendant’s failure to pay constitutes a breach of both contractual and statutory obligation. 2. The Appellant finally submitted that this Court should interfere with the decision of the trial Court rendered on 10th September, 2025 and allow the prayers sought in the Plaint. The Appellant also seeks for cots of the appeal. 3. The 1st and 2nd Respondents in their submissions vehemently opposed the appeal. The Respondents gave a brief summary of the matter in the trial court which is inter alia; that the Appellant filed suit in the lower court seeking Kshs. 3,535,351.60/- for alleged structural engineering design and drawing works; that the Appellant claimed that the 1st Respondent, acting as agent of the 2nd Respondent, had engaged it to undertake alterations to structural engineering designs for a proposed project at Rang'ala Mission Hospital; that the Appellant's case was that it prepared drawings, submitted them to the Respondents and various consultants, and that the said drawings were allegedly approved and utilized by the Respondents; that the 1st and 2nd Respondents filed their defences denying the existence of any contract between the Appellant and the Respondents and that the 1st Respondent maintained that the Appellant was merely engaged on a preliminary basis to review existing drawings prepared by another engineer (Eng. Stephen Kiragu) and that no formal appointment was ever made; that the 1st Respondent further contended that the project remains at its inception stage, with no construction having commenced and no funding secured; that after a full hearing, the trial magistrate delivered judgment on 10th September 2025, finding as follows: a) There was no contract between the Plaintiff and the Defendants. The trial court noted that no agreement was produced, no terms of reference were provided and the Appellant failed to prove that the 1st Defendant was an agent of the 2nd Defendant. b) The Appellant lacked locus standi to sue on behalf of its director, Eng. Harrison Musembi, as the initial engagement appeared to have been with the director in his personal capacity. c) The Appellant failed to prove its claim on a balance of probabilities. The suit was accordingly dismissed with no orders as to costs. 1. The Respondents raised several issues for determination namely, whether the Appeal meets the threshold for interfering with the findings of a trial court on appeal, whether there existed a valid and enforceable contract between the Appellant and the Respondents, whether the Appellant, as a professional engineering firm, complied with the mandatory provisions of the Engineers Act, 2011 and the Engineers (Scale of Fees for Professional Engineering Services) Rules, 2022, to entitle it to recover professional fees, whether the Appellant has locus standi to institute suit against the Respondents and finally who bears the costs of the Appeal. 2. It was submitted that the learned trial magistrate properly evaluated the evidence and arrived at a reasoned conclusion that no contract existed. That the Appellant has not demonstrated that the trial court misapprehended the evidence or applied the wrong legal principles. That the Appellant placed heavy reliance on the case of **Ali Abid Mohamed v Kenya Shell & Company Limited eKLR** for the proposition that a contract can be inferred from conduct. However, it was contended that this principle must be read subject to statutory provisions governing specific professions, such as engineering. That the requirement of a written contract under the Engineers Act, section 55 of the Engineers Act, No. 43 of 2011, empowers the Engineers Board of Kenya (EBK) to make rules regarding professional conduct and fees and that pursuant to this provision, the Engineers (Scale of Fees for Professional Engineering Services) Rules, 2022 were enacted. That Rule 23(4) of the 2022 Rules expressly provides: \_"A contract between a client and a consulting engineer for professional engineering services shall be in writing and shall set out— (a) the scope of the services to be rendered. (b) the terms of payment, including the scale of fees applicable. (c) the duration of the engagement. (d) the responsibilities of each party."\_ 1. It was submitted that the Appellant, being a professional engineering firm, was bound by these rules. That it is not in dispute that the Appellant did not produce any written contract signed by the 2nd Respondent or its authorized agent and hence the trial court correctly observed that no terms of reference were produced. 2. It was submitted that the Appellant's attempt to rely on WhatsApp messages and verbal exchanges is an attempt to circumvent clear statutory requirements. Reliance was placed in the case of **Eng. S. R. Manga t/a Manga & Associates v Board of Trustees - National Social Security Fund [2012] KEHC 4440 (KLR),** where the High Court dismissed a professional engineer's claim for fees where the plaintiff failed to provide adequate proof of engagement and compliance with contractual terms. The court emphasized that professionals must adhere to the terms of their appointment. 3. It was noted that the Appellant also sought to rely on the recent case **of Fredrick Ochiel v Kennedy Okoth (2026)** regarding WhatsApp chats forming binding contracts but however, the case is distinguishable in that in Ochiel, the contract involved a leasing agreement for goods, a transaction not subject to the stringent regulatory framework governing the engineering profession. That professional services, particularly those involving public safety and statutory approvals, demand a higher degree of formality. 26. As regards the issue of whether there was a lack of intention to create legal relations, the Respondents submit that the project was at a preliminary stage and has not commenced to this day. That the 1st Respondent's witness testified that the subject land remained undeveloped, no construction had commenced and no funding was in place. That the communication and meetings were only exploratory. That the alleged "approval" of drawings was part of the preliminary design review process, not a final adoption of the Appellant as the project structural engineer. That in the absence of a formal letter of appointment from the 2nd Respondent, there was no meeting of minds to create a binding legal obligation. 27. As regards the alleged agency of the 1st Respondent, it was submitted that the Appellant failed to prove that the 1st Respondent, Pamela Jepkoech Bomert, was an agent of the 2nd Respondent with authority to bind it contractually. That no written authority, board resolution or other document evidencing agency was produced. That as held in the trial court's judgment, an agent cannot bind a principal without authority. That the trial court correctly found that the 1st Respondent had no authority to bind the 2nd Respondent. 28. It was contended that even without prejudice to the foregoing, that a contract were to be inferred, the terms were uncertain. That the alleged consultancy fee of 3.5% was an agreement among consultants not an agreement with the client (2nd Respondent). That the Bill of Quantities prepared by the QS was a professional estimate, not an acceptance of liability by the 2nd Respondent to pay the Appellant's fees at that rate. That the Appellant unilaterally revised its fee note from Kshs. 3,726,853.45 to Kshs. 3,535,351.60, demonstrating a lack of certainty on the core term of consideration and on its own so as to arm-twist for a contractual relationship that did not exist. 29. It was submitted that the Appellant’s claim was illegal under the Engineers Act and thus barred the recovery of fees. That this is the Respondents' strongest ground of opposition which lies in the Appellant's non-compliance with the mandatory provisions of the Engineers Act, 2011. That the recovery of professional fees is not merely a matter of contract, it is contingent upon compliance with the statute. That section 34 of the Engineers Act, 2011 provides as follows: **"A person shall not be entitled to sue for or recover any charge, fee or remuneration for the rendering of any professional engineering services unless such person was a licensed person at the time of rendering the services."** 30. It was contended that even though the Appellant produced its Practicing License, the Respondents challenge it on the ground whether Harbicon Technics Limited, the limited liability company, was a registered engineering consulting firm at the material time pursuant to section 20 of the Act which provides for the registration of engineering consulting firms. That section 26(1) provides that a person may only offer professional engineering services upon lawful engagement. The Respondents maintain that the Appellant did not adduce evidence of its registration as a firm under Section 20 of the said Act. That a company cannot hide behind an individual director's license and that if the firm was unregistered, the Appellant is statutorily barred from recovering any fees, regardless of any alleged contract. Further, section 50(2) of the Act further provides: **"A person who is not registered as a professional engineer or a firm under this Act shall not be entitled to submit any engineering plan, survey, drawing, scheme, proposal, report, design or study to any person or authority in Kenya."** 31. It was also submitted that if Appellant was unregistered, its submission of drawings, again on its own volition, to Siaya County Government was an illegal act. That Courts will not enforce a contract founded on an illegality. That the Respondents submit that this court ought not to assist a party who relies on an illegality to found a claim. That the Appellant's claim, therefore, fails at the threshold of statutory illegality as the trial court, while not expressly addressing this, arrived at the correct conclusion by dismissing the suit. 31. As regards the issue of locus standi, it was submitted that the trial court found that the Appellant lacked locus standi to sue on behalf of its director, Eng. Harrison Musembi, as the initial engagement appeared to be with the director in his personal capacity. The Respondents submit that this finding by the trial court was sound. That the 1st Respondent's evidence showed that she initially engaged Eng. Harrison Musembi personally to review the drawings and that it was only later that the Appellant company, through its director, sought to interpose itself into the transaction. That a company is a distinct legal entity from its directors, as established in **Salomon v Salomon & Co Ltd (1897)AC 22**. That there is no evidence of a novation or assignment of the personal engagement to the company. That the Appellant's bundle at page 205 (the CR12) merely shows that Eng. Harrison Musembi is a director and does not prove that the 2nd Respondent intended to contract with the company. That the trial court cannot rewrite the parties' history and impute a contract with the company where none was intended. 32. As regards the status of the project and use of the drawings, it is noted that the Appellant claims its drawings were "used" by the Respondents. It was submitted that the evidence on record, specifically the photographs dated July 19th, 2024, produced by the 1st Defendant, shows that the subject property remained undeveloped, with no excavations, foundations, or construction works having commenced. In **Yaya Towers Ltd v Trade Bank Ltd (In Liquidation) (Civil Case 6 of 2019) [2000] eKLR**, the court held that no remedy can be granted for anticipated future harm or loss that is yet to occur. That the Appellant's claim is based on an alleged future use of the drawings in a project that has not even taken off and thus the claim is speculative and premature. 33 Further, it was contended that the Appellant's role, by his own admission, was to review drawings initially prepared by another engineer (Eng. Stephen Kiragu). That the Appellant cannot now claim full structural engineering design fees for work that was fundamentally derivative. That the appellant also filed a separate suit in Mombasa regarding the same drawings, which amounts to forum shopping and an abuse of the court process. 34 The Respondent therefore seeks for the dismissal of the appeal with costs. 35. I have considered the record of appeal and the submissions tendered. I find the issue for determination is whether the appeal has merit. 36. I need to address one germane issue that arose in the trial court namely that the director of the Appellant herein one Harrison Musembi had already filed suit vide Mombasa CMCC No. E018 of 2024 against the 1st Respondent herein for a sum of Kshs 350,000/ plus costs and interest being in respect of services rendered namely architectural and structural engineering drawings for the intended construction of Rangala Mission hospital. It transpired from the proceedings in the lower court herein that the said Harrison Musembi was a director of the Appellant herein. A perusal of the e-mail correspondence between the said Harrison Musembi and the 1st Respondent herein revealed that Harrison Musembi had been engaged individually and not through his company (the Appellant herein). The Respondents herein had raised a notice of Preliminary Objection regarding the existence of the suit in Mombasa which was duly canvassed by the parties and in which the trial court dismissed it and ordered the parties to proceed with the matter. I have decided to revisit this Mombasa suit as it is apparent that Harrison Musembi who is the Plaintiff in the Mombasa suit is the same person litigating herein as the Appellant. I have perused the pleadings and documents filed vide Mombasa suit CMCC E018 of 2018 and note that the drawings relied upon are the same ones used in the lower court herein. This then leads me to come to the conclusion that the Plaintiff in the Mombasa suit and the Siaya suit is one and the same person. There is no evidence that the Appellant herein through its director did withdraw the Mombasa suit before prosecuting the Siaya suit. The claims for work done in the Mombasa suit relates to the Rangala Mission Hospital (2nd Respondent herein) and which is similar to the Siaya suit. Indeed, the e-mails correspondences between Harrison Musembi and the 1st Respondent showed that the 1st Respondent dealt with him at an individual capacity and thus the dispute between them is properly being addressed vide the Mombasa suit. I find the filing of the Siaya suit by the Appellant was erroneous as the Appellant did not have any arrangement with the Respondent. The trial court properly found that there was no contract between the Plaintiff and the Defendants. Indeed, it is not the business of the courts to interfere with contracts between parties and that a court of law will not rewrite contracts between parties who are bound by the terms of those contracts unless coercion, fraud or undue influence are pleaded or proved. See National Bank of Kenya Limited Vs Pipe Plastic Samkolit (K0 Ltd [2002] 2 E.A 503. Iam satisfied that the Appellant herein through its director was out to make a benefit and thereby obtain an unjust enrichment from two fronts using the same set of documents. It is thus clear that the Plaintiff in the Mombasa suit had camouflaged himself as a different entity in the Siaya suit. As long as the 1st Respondent had engaged the Appellant’s director in an individual capacity, then the appearance of the Appellant as a claimant is mischievous in view of the fact that the Mombasa suit was to take care of any concerns. Consequently, the finding by the trial court regarding the capacity and or locus standi of the Appellant to file suit on behalf its director was not in error. 37. It is noted that the That the Appellant has placed heavy reliance on the case of **Ali Abid Mohamed v Kenya Shell & Company Limited [2017] eKLR** for the proposition that a contract can be inferred from conduct of the parties. However, it was contended by the Respondents that this principle must be read subject to statutory provisions governing specific professions, such as engineering. That the requirement of a written contract under the Engineers Act, section 55 of the Engineers Act, No. 43 of 2011, empowers the Engineers Board of Kenya (EBK) to make rules regarding professional conduct and fees and that pursuant to this provision, the Engineers (Scale of Fees for Professional Engineering Services) Rules, 2022 were enacted. That Rule 23(4) of the 2022 Rules expressly provides: \_"A contract between a client and a consulting engineer for professional engineering services shall be in writing and shall set out— (a) the scope of the services to be rendered. (b) the terms of payment, including the scale of fees applicable. (c) the duration of the engagement. (d) the responsibilities of each party."\_ 38 It was contended by the Respondents that the Appellant, being a professional engineering firm, was bound by these rules. That it is not in dispute that the Appellant did not produce any written contract signed by the 2nd Respondent or its authorized agent and hence the trial court correctly observed that no terms of reference were produced. Indeed, the 1st Respondent vide the trove of e-mails showed that she had engaged Harrison Musembi on an individual basis and not through the Appellant. In any case, the Mombasa suit should address any concerns of the Appellant and its director. In the case of **Eng. S. R. Manga t/a Manga & Associates v Board of Trustees - National Social Security Fund [2012] KEHC 4440 (KLR),** the High Court dismissed a professional engineer's claim for fees where the plaintiff failed to provide adequate proof of engagement and compliance with contractual terms. The court emphasized that professionals must adhere to the terms of their appointment. 39. It is noted that the Appellant has sought to rely on the recent case **of Fredrick Ochiel v Kennedy Okoth (2026) eKLR** regarding WhatsApp chats forming binding contracts but however, the case is distinguishable in that in the above case, the contract involved a leasing agreement for goods, a transaction not subject to the stringent regulatory framework governing the engineering profession. Indeed, professional services, particularly those involving public safety and statutory approvals, demand a higher degree of formality. As noted above, the conversation between the 1st Respondent and the Appellant’s director was on an individual basis and not between companies and that is why the said director filed the Mombasa suit which took care of any concerns. 40. As regards the issue of whether there was a lack of intention to create legal relations, the Respondents contend that the project was at a preliminary stage and has not commenced to this day. That the 1st Respondent's witness testified that the subject land remained undeveloped, no construction had commenced and no funding was in place. That the communication and meetings were only exploratory. That the alleged "approval" of drawings was part of the preliminary design review process, not a final adoption of the Appellant as the project structural engineer. That in the absence of a formal letter of appointment from the 2nd Respondent, there was no meeting of minds to create a binding legal obligation. Indeed, a contract of that magnitude required a proper contract with the attendant obligations and compliance. None was availed by the Appellant to show that it had been fully engaged in the construction. In any event, the Appellant’s driver had already filed suit in Mombasa and provided the claim which is quite different from the one lodged before the lower court herein. There was no explanation how the claimed sum of Kshs 350,000/ could astronomically shoot to a sum of over Kshs 3.5 million. There was thus no correlation between the sums claimed in the Mombasa suit and the one in Siaya. 41. As regards the alleged agency of the 1st Respondent, the Respondents contend that the Appellant failed to prove that the 1st Respondent, Pamela Jepkoech Bomert, was an agent of the 2nd Respondent with authority to bind it contractually. That no written authority, board resolution or other document evidencing agency was produced. That as held in the trial court's judgment, an agent cannot bind a principal without authority. That the trial court correctly found that the 1st Respondent had no authority to bind the 2nd Respondent. The 1st Respondent vide some of the e-mails confirmed that she had engaged the said Harrison Musembi on an individual basis and that the issue of the Appellant was not in the picture. It is noted that the claim by the Appellant should be addressed in the Mombasa suit and not in the Siaya suit. It is clear that the Appellant did not prove any contractual relationship between it and the 1st Respondent and by extension the 2nd Respondent and that the e-mail and WhatsApp communication did not establish the same. 43. The Respondents have raised a germane issue namely, that there was non-compliance with the mandatory provisions of the Engineers Act, 2011. That the recovery of professional fees is not merely a matter of contract, it is contingent upon compliance with the statute. That section 34 of the Engineers Act, 2011 provides as follows: **"A person shall not be entitled to sue for or recover any charge, fee or remuneration for the rendering of any professional engineering services unless such person was a licensed person at the time of rendering the services."** 44 It was contended that even though the Appellant produced its practicing License, the Respondents challenge it on the ground whether Harbicon Technics Limited, the limited liability company, was a registered engineering consulting firm at the material time pursuant to section 20 of the Act which provides for the registration of engineering consulting firms. That section 26(1) provides that a person may only offer professional engineering services upon lawful engagement. The Respondents contended that the Appellant did not adduce evidence of its registration as a firm under Section 20 of the said Act. That a company cannot hide behind an individual director's license and that if the firm was unregistered, the Appellant is statutorily barred from recovering any fees, regardless of any alleged contract. Further, section 50(2) of the Act further provides: "**A person who is not registered as a professional engineer or a firm under this Act shall not be entitled to submit any engineering plan, survey, drawing, scheme, proposal, report, design or study to any person or authority in Kenya."** 45 It was therefore the contention of the Respondents that if Appellant was unregistered, its submission of drawings, again on its own volition, to Siaya County Government was an illegal act. That Courts will not enforce a contract founded on an illegality. The Respondents now urge this court that it ought not to assist a party who relies on an illegality to found a claim. It is clear from the record of the trial court that the Appellant did not surmount the threshold of proof and thus the finding by the trial court to the effect that the Appellant lacked locus standi to sue on behalf of its director, Eng. Harrison Musembi, as the initial engagement appeared to be with the director in his personal capacity was proper. The 1st Respondent's evidence showed that she initially engaged Eng. Harrison Musembi personally to review the drawings and that it was only later that the Appellant company, through its director, sought to interpose itself into the transaction. Indeed, a company is a distinct legal entity from its directors, as established in **Salomon v Salomon & Co Ltd (1897)AC 22**. There was no evidence of a novation or assignment of the personal engagement of Harrison Musembi to the company. That the Appellant's bundle at page 205 (the CR12) merely shows that Eng. Harrison Musembi is a director and does not prove that the 2nd Respondent intended to contract with the company. The trial court cannot rewrite the parties' history and impute a contract with the company where none was intended. 46. It is noted that the Appellant had already filed a similar case at Mombasa vide CMCC No. E081/ 2024 seeking almost similar reliefs and using the same set of claims, facts and exhibits. It is clear that the Appellant was out on a forum shopping which is not acceptable. I find the Appellant was out to vex the Respondents. Indeed, the sums claimed vide the Mombasa suit is the ones allegedly agreed and or promised by the 1st Respondent herein. it was proper for the Appellant to have persuaded that instead of trying to have his luck from both fronts. 47. In view of the foregoing observations, it is my finding that the Appellant’s appeal lacks merit. The same is dismissed with costs. **Dated and** **delivered at Siaya this 2nd day of July 2026** **D.KEMEI** **JUDGE** **In the presence of:** 1. **Wagumba for Amugune..................................for Appellant** 2. **M/s Saisi.....................................................for Respondent** 3. **Maurine.............................................Court Assistant**