[2025] KEHC 8947 (KLR)

Kaigi General Contractors Limited v National Irrigation Authority (Civil Case E009 of 2021) [2025] KEHC 8947 (KLR) (20 June 2025) (Judgment)

Neutral citation: [2025] KEHC 8947 (KLR)

Republic of Kenya

In the High Court at Nyeri

Civil Case E009 of 2021

MA Odero, J

June 20, 2025

Between

Kaigi General Contractors Limited

Plaintiff

and

National Irrigation Authority

Defendant

Judgment

1. The Plaintiff herein Kaigi General Contractors Ltd instituted this suit by way of the plaint dated 20th September 2021. The plaintiff prayed for judgment against the Defendant for“(a)Kshs. 185,913,953. 00(b)Costs of the suit(c)Interest on (a) and (b) at court rates.”

2. The Defendant National Land Irrigation Authority filed a statement of Defence dated 15th October 2021 denying the plaintiffs claim in total. The parties were allowed several opportunities to hold discussions with a view to reaching an out of court settlement but this was not achievable. The matter then proceeded for hearing by way of Vive Voce evidence.

The Evidence 3. PW1 James Muchangi Gachemi told the court that he was a Director of the plaintiff a limited liability company, engaged in general construction works. The witness relied entirely upon his written statement dated 21st September 2021 as well as the bundles of Documents dated 20th September 2021 (PEx1), 8th April 2022 and 22nd February 2022, (PEx 4) and (Pex 5).

4. Pw1 told the court that during the period 2015 to 2016 the plaintiff was contracted by the Defendant to carry out various construction works. He stated that although the plaintiff received payment for some of the works undertaken, there remained a balance of Kshs. 185,913,953. 00 still due and owing in respect of completed works. The plaintiffs claim is particularized at paragraph 3 of the plaint as follows:-(a)Retention Fee for Tender Number NIB/T/049/2014-2015 for construction of Mwea Irrigation Scheme Walk Ways, Parking Lots and Workshop Bays KES. 3,150,560/-(b)Retention Fee for Tender Number NIB/T/049/2014-2015 for construction of Iraru Ithitwe Irrigation project KES.1,461,976/-;(c)Various unpaid LPOs for supply of murram at Mwea Irrigation Scheme KES 136,160,000/-;(d)Various unpaid LPOs for construction of passages and gates at Mwea Irrigation scheme KES. 15,914,387/-;(e)Various unpaid LPOs for construction of passages and gates at Mwea irrigation scheme KES 19,848,082/-;(f)Various unpaid LPOs for grading works at Mwea irrigation Scheme KES. 6,616,200/-;(g)Various unpaid LPOs for excavations at Mwea Irrigation Scheme KES. 2,279,748/-.

5. DW1 Innocent Arieba Ateka was at the material time the Defendants Regional Coordinator for the Nyanza and Western Regions and was the Manager of the Mwea Irrigation Scheme. The witness relied upon his witness statement dated 6th June 2022. DW1 confirmed that the plaintiff company had indeed been contracted to carry out certain works for the Defendant but categorically denied that the Defendant owes the Plaintiff any monies and in particular denies the plaintiffs claim for Kshs. 185,913,953. 00 which he dismissed as ‘fraud’ and fictitious’

6. DW1 explained that all procurement by the Defendant was governed by the Public Procurement and Asset Disposal Act 2015. That once the contracted works were completed the Defendant after inspection of the works would issue a completion certificate. He emphasized that no payment could be processed without the completion certificate.

7. DW2 further explained that in order for the Finance Department to make payment to a contractor, they require from the user Department the LPO, delivery note, completion certificate and invoice. Upon receipt of the said documents the Finance Department would proceed to prepare a payment voucher. Once the CEO approves and authorizes the voucher then payment is made to the vendor. Once payment has been made the payment voucher is stamped with the word ‘PAID’. The witness reiterated that without submission of a completion certificate no payment can be made.

8. Upon completion of oral evidence parties were invited to file their written submissions. The plaintiff filed the written submissions dated 6th January 2025 whilst the Defendants relied upon their written submissions dated 27th January 2025.

Analysis and Determination 9. I have carefully considered the evidence adduced by both parties in this matter, the documentary evidence presented to court as well as the written submissions filed by both parties.

10. The issues which arise for determination in this case are the following(i)Whether the plaintiffs claim is statute barred.(ii)Whether a valid and enforceable contract existed between the plaintiff and the Defendant.(iii)Whether the plaintiff is entitled to the reliefs sought.

(i) Is the claim statute-barred 11. The Defendants in their written submissions contended that the plaintiffs claim was barred by statute citing the Limitation of Actions Act Cap 22 Laws of Kenya. The record reveals that the Defendants filed a Notice of Preliminary Objection dated 6th June 2022 in which they sought to have the suit struck out on grounds interalia that the suit was time barred under Section 4(1) of the Limitation of Actions Act. It was alleged that the plaintiffs cause of action was premised upon alleged accrued debts which fell outside the six (6) year limitation period provided for under the Act.

12. In a ruling delivered on 27th April 2023, Hon. Lady Justice Florence Muchemi dismissed in its entirety the Preliminary Objection raised by the Defendants. However in that ruling the Hon. Judge did not specifically address the issue of the claim being statute barred but stated that this was a matter which could only be determined after hearing both parties.

13. The plaintiffs claim arises from various LPO’s issued by the Defendant to the plaintiff company. The certificates of completion relied upon by the plaintiff were signed over a two year period from the year 2015 to 2016.

14. The question then is when did the cause of action arise? Was it when the contract was entered into and the LPO is issued or does the cause of action arise when payment becomes due.

15. In this case the plaintiff wrote a demand letter to the Defendant which demand was dated 4th May 2015. The demand received no response.The plaintiff then moved to institute the present suit.

16. The Plaintiff also conceded that he had received part payment of the monies due to him. Additionally the defendants did acknowledge the debt due to the plaintiff through the two letters dated 10th August 2016 written to the Manager Equity Bank (k) Ltd Mwea Branch as well as the letter dated 22nd December 2016 written to Sidian Bank, Mwea Branch. In the two letters the Defendant explained that the debt due to the plaintiff had not been paid due to lack of funds release from the exchequer. The letter dated 22nd December 2022 is headed “Confirmation of Debt”. This is a clear admission by the Defendant that they owed money to the plaintiff.

17. DW1 who testified for the Defendant sought to disown the two letters. However he could not explain how or why the letters were written on the Defendants letterhead and were signed by officers whom he admits worked for the Defendant at the material time. In as much as DW1 tried to imply that the two letters were fraudulent, the Defendant made no report to the police or to any other authority regarding forgery of their documents. I find and hold that the two letters did in fact originate from the Defendant, and the same amounted to an acknowledgement by the Defendant of the debt owed to the plaintiff.

18. I have noted that in the exhibits provided to court comprise of several unpaid payment vouchers. The said vouchers have been filled out and the amounts due entered but the same are not stamped ‘Paid’. I find that the letters written to the bank as well as issuance of payment vouchers (though unpaid) amount to an acknowledgement of the by the defendant, of a debt owed to the plaintiff.

19. Blacks Law Dictionary 10th Edition defines an acknowledgement of debt as“Recognition by a debtor of the existence of a debt. An acknowledgement of debt interrupts the running of prescription.”

20. Therefore this cause of action would begin to run from the date of acknowledgement of the debt in line with section 23 as read with Section 24 of the Limitation of Actions Act. Section 23 and 24 of the said Act read as follows:-23. Fresh accrual of right of action on acknowledgement or part Payment1. Where –a.a right of action (including a foreclosure action) to recover land; orb.a right of a mortgagee of movable property to bring a foreclosure action in respect of the property, has accrued, and –i.the person in possession of the land or movable property acknowledges the title of the person to whom the right of action has accrued; or(ii)in the case of a foreclosure or other action by a mortgage, the person in possession of the land or movable property or the person liable for the mortgage debt makes any payment in respect thereof, whether of principal or interest, the right accrues on and not before the date of the acknowledgement or payment.24. Formalities as to acknowledgements and part payments(1)Every acknowledgement of the kind mentioned in section 23 of this Act must be in writing and signed by the person making it.(2)The acknowledgement of the kind mentioned in section 23 of this Act is one made to the person, or to an agent of the person, whose title or claim is being acknowledged, or in respect of whose claim the payment is being made, as the case may be, and it may be made by the agent of the person by whom it is required by that section to be made.

21. The Defendants herein did acknowledge the debt due to the plaintiff and the said acknowledgement was in writing.

22. The completion certificates exhibited and relied upon by the plaintiff run from July 2015 to December 2016. This suit was filed in September 2021. The tender was awarded to the plaintiff in July 2015. The works carried out by the plaintiff all fell under this tender and as such were all part of the same transaction. Accordingly I find and hold that the causes of action did not fall outside of the six (6) year limitation period. Accordingly I find that the plaintiff’s suit is not statute-barred.

(ii) Was there a valid and enforceable contract between the parties 23. A contract is defined in law as an agreement voluntarily entered into between parties under the intention of creating legally binding obligations.

24. The elements of a valid contract under the law include Offer, Acceptance and consideration all of which must be proved to exist. In the case of William Muthee Muthami -VS- Bank of Baroda [2014] eKLR the court stated;-“In the law of contract the aggrieved party to an agreement must, in addition prove that there was offer acceptance and consideration. It is only when these three elements are available that an innocent party can bring a claim against the party in breach.”

25. The plaintiffs had cited the tender floated by the Defendant being Tender Number NIB/T/049/2014-2015 for construction of Mwea Irrigation Scheme Walk ways, parking lots and workshop Bays. The plaintiff told the court that their company was awarded that tender. Although the tender document was not produced as an exhibit the Defendants readily conceded that indeed the plaintiff did work for them at the Mwea Irrigation Scheme.

26. The plaintiff provided services based on various local purchase orders (LPO’s) issued under this contract. The question then is whether each LPO constituted a binding contract as between the parties.

27. A local purchase order is a document used to request goods or servicesfrom a supplier within a localized area or geographical region.

28. Blacks Law Dictionary 10th Edition defines a purchase order as“A document authorising a seller to deliver goods with payment to be made payment.”

29. In the case of County Government of Narok -Vs- British Pharmaceuticals Limited [2022] eKLR, Hon. Justice Gikonyo upheld the definition of a local purchase order as provided by Blacks Law Dictionary 9th Edition and stated as follows:-“As this case rests on procurement of goods through LPO, the trial court was correct in starting to establish whether a contract was created by the LPO. See Black’s Law Dictionary a local Purchase order is:-A document that has been generated by the buyer in order to purchase products or property. This document allows a transaction to occur and when accepted by the seller it becomes a legally binding contract of sale.” [Own emphasis]

30. Similarly in Tumaz and Tumaz Enterprises Limited -VS- Magnate Ventures [2023] eKLR, Hon. Justice David Majanja (Deceased) in upholding the said definition stated as follows“I propose to begin with the contention by the Respondent that the LPO (local Purchase order) issued by the Appellant was not binding on it. Black’s Law Dictionary 9th Edition defines a “Local Purchase Order” as;-“A document that has been generated by the buyer in order to purchase products or property. This document allows a transaction to occur and when accepted by the seller becomes a legal binding contract of sale.”The Respondent does not deny that it was pursuant to the LPO (Local Purchase Order) that the parties executed the Agreement and then the Respondent went ahead to set up the Billboards and issue the invoice as per the LPO (Local Purchase Order). In my view and I agree with the Appellant, this provision of services signaled the Respondent’s acceptance of the LPO (Local Purchase Order) and created a legally binding agreement between them.I therefore find that in providing the advertising services as per the LPO (Local Purchase Order) issued by the Appellant, the Respondent accepted its terms and created a legally binding contract between itself and the Appellant. The arbitration clause therein therefore applies to it.” [Own emphasis]

31. The plaintiff has produced in court several LPO’s running from 2015 to 2016. The Defendants have not denied that the said LPO’s were issued by itself to the plaintiff. It was on the basis of these LPO’s that the plaintiff proceeded to render the services as indicated in each LPO. Once again the Defendant does not deny that works were done by the plaintiff as alleged. They however claim that the works were not completed to their satisfaction.

32. Based on the above I find that there was an ‘Offer’ by the Defendant consisting of an LPO issued to the plaintiff. The Plaintiff ‘accepted’ said offer by proceeding to carry out the works as indicated in each LPO. The ‘Consideration’ was the payment to be made to the plaintiff upon satisfactory completion of he stated works. As such I find that a valid and enforceable contract was created between the parties.

(iii) Is the Plaintiffs claim as against the Defendants merited 33. The plaintiff claims that having satisfactorily completed the works in question, the Defendants failed and/or refused to tender the payment due for such works. The plaintiff claims that it is owed a sum of Kshs. 185,913,953 for works carried out for the Defendant.

34. The Defendants in denying the plaintiff’s claim states that the works/services to be provided by the plaintiff were either not done at all or were not completed satisfactorily. That therefore there is no money due and owing to the plaintiff.

35. DW1 told the court that once a vendor had provided services then the works would be inspected by the scheme manager who if satisfied would then issue a completion certificate. An invoice would then be raised to enable the Finance Department to raise a payment voucher which payment would be authorized by the CEO. Dw1 emphasized that“If there is No Completion Certificate then no payment can be processed. This is the law.”

36. Therefore proof of satisfactory completion of works is evidenced by the issuance of completion certificate. [see Cottingham Properties Limited -VS- Tausi Assurance Company Limited & Another [2019] eKLR]

37. Once the Defendant issued to the plaintiff a completion certificate in respect of any works then the Defendant is under a legal obligation to make payment for the completed works.

38. The plaintiff did admit that he has been paid part of the monies due to him, that he is only claiming what is in arrears. The Defendant did not tender any evidence to show what amounts had already been paid to the plaintiff.

39. The court has had to go through the very tedious exercise of perusing the voluminous documents provided by the plaintiff to compare the LPO’s issued as against the completion certificates issued by the Defendant. In so doing it became evident that some of the LPO’s did not have matching completion certificates and in respect of those the plaintiffs claim would have to fail.

40. In Weston Contractors Limited -VS- Kenya Ferry Services [2014] eKLR the court stated that“Having procured the plaintiff’s services fairness required that the Defendant would pay for these services when the certificates were issued by the Defendants own appointed Architect and confirmed again by the Defendant’s own appointed quantity surveyor. It was unjust to delay such payment and to refuse to pay interest for the delayed payments.”

41. In determining the merit or otherwise of the plaintiffs claim the court embarked on a scrutiny of the LPO’s produced as exhibits and compared them with the corresponding completion certificates duly signed by employees of the Defendant. It is only the claims in respect of an LPO where a corresponding completion certificate (bearing an identical serial number) exists that can be allowed.

42. I have further noted that in several instances payment vouchers had been issued (and copies of said payment vouchers were produced). However several of these payment vouchers exhibited in court were not stamped with the word ‘PAID’ which DW1 informed the court was the procedure once payment had been made. This can be contrasted with the payment vouchers which appear at pages 10, 11 and 16 of Volume V of the Exhibits which clearly has the words paid in bold stamped on the voucher which stamp also bears the logo of the Defendant as proof that the payment was made.

43. It is therefore safe to conclude that issuance of a payment voucher without payment stamp PAID affixed thereon amounts to proof that no payment was made against that voucher – the amount indicated in such a voucher therefore remains due and owing. Moreover the Defendant did not avail to the court any evidence of payments made to the plaintiff and/or a list of the LPO’s against which payment had already been made.

44. From an analysis of the documents (exhibits) produced in court, the court was able to reduce the relevant information into a table. This table shows out the LPO’s which have corresponding completion certificates which claims are valid. The table also indicates the LPO’s which do not have any corresponding completion certificates which claims the court therefore deems to be invalid.Volume II –PEXH.3 in respect of Mwea Irrigation SchemeVOL.II Page L.P.O. No. Value in KES Completion Certificate Page Completion Certificate Signed on

4 00565 KES.480,000/- 6 18/7/2015

9 00566 KES.480,000/- 13 18/7/2015

16 00572 KES.480,000/- 20 20/7/2015

23 00573 KES.480,000/- 27 20/7/2015

30 00579 KES.480,000/- 30 20/7/2015

37 00580 KES.480,000/- 41 21/7/2015

44 00581 KES.480,000/- 48 21/7/2015

51 00582 KES.480,000/- 55 21/7/2015

58 00586 KES.480,000/- 62 21/7/2015

65 00639 KES.480,000/- 69 14/8/2015

72 00641 KES.480,000/- 76 14/8/2015

79 00642 KES.480,000/- 83 14/8/2015

86 00648 KES.480,000/- 90 14/8/2015

93 00657 KES.480,000/- 97 20/8/2015

100 00658 KES.480,000/- 103 20/8/2015

106 00659 KES.480,000/- 110 20/8/2015

112 00660 KES.492,420/- 112 21/8/2015

118 00661 KES.480,000/- 122 21/8/2015

125 00662 KES.480,000/- 129 21/8/2015

131 00663 KES.480,000/- N/A N/A

133 00904 KES.480,000/- 137 27/10/2015

00664 KES.480,000/-

21/8/2015

139 01005 KES.480,000/- 143 9/11/2015

145 00988 KES.480,000/- 149 7/11/2015

151 00968 KES.480,000/- 155 5/11/2015

157 00965 KES.480,000/- 161 5/11/2015

163 00962 KES.480,000/- 167 4/11/2015

169 00961 KES.480,000/- 173 4/11/2015

175 00919 KES.480,000/- 179 30/10/2015

181 00918 KES.480,000/- 185 30/10/2015

187 01357 KES.480,000/- No Completion Certificate N/A

189 01356 KES.480,000/- No Completion Certificate N/A

191 01355 KES.480,000/- No Completion Certificate N/A

193 01354 KES.480,000/- No Completion Certificate N/A

195 01353 KES.480,000/- No Completion Certificate N/A

197 01352 KES.480,000/- No Completion Certificate N/A

199 01351 KES.480,000/- No Completion Certificate N/A

201 01350 KES.480,000/- No Completion Certificate N/A

203 01349 KES.480,000/- No Completion Certificate N/A

205 01348 KES.480,000/- No Completion Certificate N/A

207 01317 KES.480,000/- No Completion Certificate N/A

209 01316 KES.480,000/- No Completion Certificate N/A

211 01315 KES.480,000/- No Completion Certificate N/A

213 01314 KES.480,000/- No Completion Certificate N/A

215 01313 KES.480,000/- No Completion Certificate N/A

217 01312 KES.480,000/- No Completion Certificate N/A

219 01311 KES.480,000/- No Completion Certificate N/A

221 01310 KES.480,000/- No Completion Certificate N/A

223 01308 KES.480,000/- No Completion Certificate N/A

225 01307 KES.480,000/- No Completion Certificate N/A

227 01268 KES.480,000/- No Completion Certificate N/A

229 01267 KES.480,000/- No Completion Certificate N/A

231 01266 KES.480,000/- No Completion Certificate N/A

233 01265 KES.480,000/- No Completion Certificate N/A

235 01264 KES.480,000/- No Completion Certificate N/A

237 01262 KES.480,000/- No Completion Certificate N/A

239 01261 KES.480,000/- No Completion Certificate N/A

241 01260 KES.480,000/- No Completion Certificate N/A

243 01259 KES.480,000/- No Completion Certificate N/A

245 01237 KES.480,000/- No Completion Certificate N/A

247 01236 KES.480,000/- No Completion Certificate N/A

249 01235 KES.480,000/- No Completion Certificate N/A

251 01234 KES.480,000/- No Completion Certificate N/A

253 01233 KES.480,000/- No Completion Certificate N/A

255 01232 KES.480,000/- No Completion Certificate N/A

257 01231 KES.480,000/- No Completion Certificate N/A

259 01230 KES.480,000/- No Completion Certificate N/A

261 01229 KES.480,000/- No Completion Certificate N/A

263 01228 KES.480,000/- No Completion Certificate N/A

265 01203 KES.480,000/- No Completion Certificate N/A

267 01202 KES.480,000/- No Completion Certificate N/A

269 01201 KES.480,000/- No Completion Certificate N/A

271 01200 KES.480,000/- No Completion Certificate N/A

273 01199 KES.480,000/- No Completion Certificate N/A

275 01197 KES.480,000/- No Completion Certificate N/A

277 01196 KES.480,000/- No Completion Certificate N/A

279 01195 KES.480,000/- No Completion Certificate N/A

281 01194 KES.480,000/- No Completion Certificate N/A

283 01193 KES.480,000/- No Completion Certificate N/A

285 01157 KES.480,000/- No Completion Certificate N/A

287 01156 KES.480,000/- No Completion Certificate N/A

289 01155 KES.480,000/- No Completion Certificate N/A

291 01154 KES.480,000/- No Completion Certificate N/A

293 01153 KES.480,000/- No Completion Certificate N/A

295 01152 KES.480,000/- No Completion Certificate N/A

297 01151 KES.480,000/- No Completion Certificate N/A

299 01150 KES.480,000/- No Completion Certificate N/A

301 01149 KES.480,000/- No Completion Certificate N/A

303 01148 KES.480,000/- No Completion Certificate N/A

305 00931 KES.492,246 307 Undated

310 01053 KES.480,000/- No Completion Certificate N/A

312 01049 KES.480,000/- No Completion Certificate N/A

314 01123 KES.480,000/- No Completion Certificate N/A

316 01122 KES.480,000/- No Completion Certificate N/A

318 01120 KES.480,000/- No Completion Certificate N/A

320 01119 KES.480,000/- No Completion Certificate N/A

322 01091 KES.480,000/- No Completion Certificate N/A

324 01090 KES.480,000/- No Completion Certificate N/A

326 01093 KES.480,000/- No Completion Certificate N/A

328 01092 KES.480,000/- No Completion Certificate N/A

330 01089 KES.480,000/- No Completion Certificate N/A

332 01088 KES.480,000/- No Completion Certificate N/A

334 01087 KES.480,000/- No Completion Certificate N/A

336 01086 KES.480,000/- No Completion Certificate N/A

338 01085 KES.480,000/- No Completion Certificate N/A

340 01084 KES.480,000/- No Completion Certificate N/A

342 01059 KES.480,000/- No Completion Certificate N/A

344 01058 KES.480,000/- No Completion Certificate N/A

346 01057 KES.480,000/- No Completion Certificate N/A

348 01056 KES.480,000/- No Completion Certificate N/A

350 01055 KES.480,000/- No Completion Certificate N/A

352 00971 KES.492,246/- 355 18/11/2015

358 00525 KES.492,246/- 360 14/7/16

363 00785 KES.492,246/- No Completion Certificate N/A

365 01341 KES.480,000/- No Completion Certificate N/A

367 01340 KES.480,000/- No Completion Certificate N/A

369 01339 KES.480,000/- No Completion Certificate N/A

371 01338 KES.480,000/- No Completion Certificate N/A

373 01337 KES.480,000/- No Completion Certificate N/A

375 01336 KES.480,000/- No Completion Certificate N/A

377 01335 KES.480,000/- No Completion Certificate N/A

379 01334 KES.480,000/- No Completion Certificate N/A

381 01333 KES.480,000/- No Completion Certificate N/A

383 01332 KES.480,000/- No Completion Certificate N/A

385 01290 KES.480,000/- No Completion Certificate N/A

387 01289 KES.480,000/- No Completion Certificate N/A

389 01288 KES.480,000/- No Completion Certificate N/A

391 01287 KES.480,000/- No Completion Certificate N/A

393 01286 KES.480,000/- No Completion Certificate N/A

395 01284 KES.480,000/- No Completion Certificate N/A

397 01283 KES.480,000/- No Completion Certificate N/A

399 01282 KES.480,000/- No Completion Certificate N/A

401 01281 KES.480,000/- No Completion Certificate N/A

403 01280 KES.480,000/- No Completion Certificate N/A

405 01255 KES.480,000/- No Completion Certificate N/A

407 01254 KES.480,000/- No Completion Certificate N/A

409 01253 KES.480,000/- No Completion Certificate N/A

411 01252 KES.480,000/- No Completion Certificate N/A

413 01251 KES.480,000/- No Completion Certificate N/A

415 01250 KES.480,000/- No Completion Certificate N/A

417 01249 KES.480,000/- No Completion Certificate N/A

419 01248 KES.480,000/- No Completion Certificate N/A

421 01247 KES.480,000/- No Completion Certificate N/A

423 01246 KES.480,000/- No Completion Certificate N/A

425 01222 KES.480,000/- No Completion Certificate N/A

427 01220 KES.480,000/- No Completion Certificate N/A

429 01219 KES.480,000/- No Completion Certificate N/A

431 01218 KES.480,000/- No Completion Certificate N/A

433 01217 KES.480,000/- No Completion Certificate N/A

435 01216 KES.480,000/- No Completion Certificate N/A

437 01215 KES.480,000/- No Completion Certificate N/A

439 01214 KES.480,000/- No Completion Certificate N/A

441 01213 KES.480,000/- No Completion Certificate N/A

443 01212 KES.480,000/- No Completion Certificate N/A

445 01177 KES.480,000/- No Completion Certificate N/A

447 01176 KES.480,000/- No Completion Certificate N/A

449 01175 KES.480,000/- No Completion Certificate N/A

451 01174 KES.480,000/- No Completion Certificate N/A

453 01173 KES.480,000/- No Completion Certificate N/A

455 01172 KES.480,000/- No Completion Certificate N/A

457 01171 KES.480,000/- No Completion Certificate N/A

459 01169 KES.480,000/- No Completion Certificate N/A

461 01168 KES.480,000/- No Completion Certificate N/A

463 01167 KES.480,000/- No Completion Certificate N/A

465 01024 KES.480,000/- No Completion Certificate N/A

467 01023 KES.480,000/- No Completion Certificate N/A

469 01022 KES.480,000/- No Completion Certificate N/A

471 01021 KES.480,000/- No Completion Certificate N/A

473 01022 KES.480,000/- No Completion Certificate N/A

475 01134 KES.480,000/- No Completion Certificate N/A

477 01131 KES.480,000/- No Completion Certificate N/A

479 01130 KES.480,000/- No Completion Certificate N/A

481 01129 KES.480,000/- No Completion Certificate N/A

483 01068 KES.480,000/- No Completion Certificate N/A

485 01066 KES.480,000/- No Completion Certificate N/A

487 01064 KES.480,000/- No Completion Certificate N/A

489 001143 KES.480,000/- No Completion Certificate N/A

491 01141 KES.480,000/- No Completion Certificate N/A

493 01140 KES.480,000/- No Completion Certificate N/A

495 01139 KES.480,000/- No Completion Certificate N/A

497 01135 KES.480,000/- No Completion Certificate N/A

499 01105 KES.480,000/- No Completion Certificate N/A

501 01104 KES.480,000/- No Completion Certificate N/A

503 01103 KES.480,000/- No Completion Certificate N/A

505 01100 KES.480,000/- No Completion Certificate N/A

507 01099 KES.480,000/- No Completion Certificate N/A

509 01098 KES.480,000/- No Completion Certificate N/A Vol.III Page L.P.O. No. Value in KES Completion Certificate Page Completion Certificate Signed on

1 01582 KES.480,000/- 5 9/3/16

7 01580 KES.480,000/- 11 9/3/16

13 01577 KES.480,000/- 17 9/3/16

19 01575 KES.480,000/- 23 9/3/16

25 01573 KES.480,000/- 29 8/3/16

31 01571 KES.480,000/- 35 8/3/16

43 01569 KES.480,000/- 47 8/3/16

49 01567 KES.480,000/- 55 8/3/16

51 00063 **** Absent

57 01565 **** 61 7/3/16

63 01561 **** 67 7/3/16

69 01557 **** Absent

71 01555 **** Absent

73 01545 **** Absent

75 01541 **** Absent

77 01551 **** Absent

79 01077 KES.492,420 82 4/12/2015

83 01070 KES.492,420**** 86 2/12/2015

88 00898 KES492,246 91 3/10/2015

93 00894 KES492,246 96 28/10/2015

98 00871 KES.492,246 101 18/11/2015

104 00564 KES 480,000/- 108 18/7/2015

111 00558 **** Absent

116 00571 KES 480,000/- 119 20/7/2015

122 00556 KES 480,000/- 126 20/7/2015

129 00548 KES 480,000/- 133 20/7/2015

136 00547 KES 480,000/- 140 10/7/2015

143 00557 KES 480,000/- 147 10/7/2015

149 00546 KES 480,000/- 153 10/7/2015

155 00542 KES 480,000/- 159 10/7/2015

161 00541 KES 480,000/- 165 9/7/2015

167 00540 KES 480,000/- 171 9/7/2015

173 00532 **** Absent

177 00531 KES 480,000/- 181 6/7/2015

183 00519 KES 480,000/- 187 4/7/2015

189 00518 KES 480,000/- 193 4/7/2015

195 00517 KES 480,000/- 198 4/7/2015

200 00610 KES 480,000/- 204 24/7/2015

207 00605 KES 480,000/- 211 24/7/2015

214 00604 KES 480,000/- 218 24/7/2015

221 00603 KES 480,000/- 225 24/7/2015

228 00602 KES 480,000/- Absent/party used Completion Certificate for LPO00604 23/7/2015

235 00599 KES 480,000/- 239 23/7/2015

242 00598 KES 480,000/- 246 23/7/2015

249 00597 KES 480,000/- 253 28/7/2015

256 00596 KES 480,000/- 260 22/7/2015

263 00591 KES 480,000/- 267 22/7/2015

270 00590 KES 480,000/- 274 22/7/2015

277 00589 KES 480,000/- 281 22/7/2015

283 00989 KES 480,000/- 287 9/11/2015

289 00987 KES 480,000/- 293 7/11/2015

295 00984 KES 480,000/- 299 6/11/2015

301 00982 KES 480,000/- 305 6/11/2015

307 00917 KES 480,000/- 311 29/10/2015

313 00914 KES 480,000/- 317 29/10/2015

319 00903 KES 480,000/- 323 27/10/2015

325 00902 KES 480,000/- 329 27/10/2015

331 01006 KES 480,000/- 335 10/11/2015

337 01004 KES 480,000/- 341 9/11/2015

343 01003 KES 480,000/- 347 9/11/2015

349 00967 KES 480,000/- 353 5/11/2015

355 00963 KES 480,000/- 359 4/11/2015

361 00959 KES 480,000/- 365 4/11/2015

367 01001 KES 480,000/- 371 9/11/2015

373 00995 KES 480,000/- 377 9/11/2015

379 00981 KES 480,000/- 383 6/11/2015

385 00980 KES 480,000/- 389 6/11/2015

391 00893 KES 480,000/- 395 26/10/2015

397 00964 KES 480,000/- 401 5/11/2015

403 00986 KES 480,000/- 407 7/11/2015

409 00985 KES 480,000/- 413 6/11/2015

415 01010 KES 480,000/- 419 10/11/2015

421 00892 KES 480,000/- 425 26/10/2015

427 01009 KES 480,000/- 431 5/11/2015

433 01008 KES 480,000/- 437 10/11/2015

439 01007 KES 480,000/- 443 10/11/2015

445 00966 KES 480,000/- 449 5/11/2015

451 00960 KES 480,000/- 454 4/11/2015

456 01019 KES 480,000/- 460 11/11/2015

462 01018 KES 480,000/- 466 11/11/2015

468 01017 KES 480,000/- 472 11/11/2015

474 01016 KES 480,000/- 478 11/11/2015

480 01014 KES 480,000/- 484 11/11/2015

486 00990 KES 480,000/- 490 7/11/2015

492 00907 KES 480,000/- 496 28/10/2015

498 00906 KES 480,000/- 502 28/10/2015

504 00905 KES 480,000/- 508 28/10/2015 Volume IV – PEXH. 5VOL.IV Page L.P.O. No. Value in Kes. Completion Certificate Page Completion Certificate Signed on

1 01547 KES.480,000/- 5 5/3/2016

7 01526

Absent

11 01549

Absent

14 01538

Absent

18 00558 KES.480,000/- 20 11/7/2015

21 01542

Absent

25 01529

Absent

27 01532

Absent

30 01542

Absent

40 01544

absent

41 00183 KES.493,000/- 44 24/11/2014

46 00934 KES.492,246/- 49 12/11/2015

51 00660 KES.492,246/- 54 21/08/2015

55 00665 KES.492,246/- 58 21/08/2015

60 00204 KES.492,420/- 63 24/12/2015

69 00571 KES.480,000/- 72 20/11/2015

74 00238 KES.492,246/- 78 19/1/2015

79 00222 KES.492,420/- 82 23/11/14

32 00916 KES.492,246/- 86 5/11/2015

88 00278 KES.408. 519. 52/- 91 23/02/2015

93 00364 KES.492,420/- 96 13/04/2015

98 00956 KES.492,246/- 100 18/11/2015

102 00756

Absent

106 00347 KES.492,246/- 109 31/3/2015

111 01034

Absent

113 01032

Absent

116 00220 KES.492,246/- 119 17/1/2015

121 00649 KES.480,000/- 124 15/8/2015

125 01035

Absent

128 00533 KES.480,000/- 132 6/7/2015

133 00663

Absent

135 00793 KES.492,246/- Present 2/10/2015

139 01025

Absent

141 00269 KES.408,519. 52/- 144 23/2/2015

145 00802 KES.492,246/- 148 2/10/2015

150 00650 KES.480,000/- 154 15/08/2015

156 00164

Absent

158 00528 KES.492,246/- 161 4/7/2016

163 00198 KES.493,000/- 165 4/12/2014

167 00768 KES.492,246/- 170 24/9/2015

172 00770 KES.492,246/- 174 30/9/2015

176 00777

Absent

179 00217 KES.492,246/- 181 22/2/2014

183 00888 KES.492,246/- 186 11/12/2015

188 00645 KES.492,246/- 191 18/8/2015

193 00249 KES.493,000/- 195 4/2/2015

197 00637 KES.492,246/- 199 15/8/2015

201 00883 KES.492,246/- 204 7/12/2015

206 00887 KES.492,246/- 208 9/12/2015

210 00858 KES.492,246/- 212 28/11/2015

214 00865 KES.492,246/- 215 30/11/15

218 00472 KES.492,246/- 221 11/6/2015

223 00926 KES.492,246/- 226 7/11/2015

228 01042 KES.492,420/- 228 1/12/2015

232 00999 KES.492,246/- 234 19/11/15

236 122880

Absent

239 122879

Absent

244 001591

Absent

246 122878

Absent

248 00077

Absent

253 00014

Absent

45. The claims raised in Volume V all relate to LPOs arising from work allegedly carried out at the Bura Irrigation Scheme. However none of the LPO’s had corresponding completion certificates proving that the stated works were inspected and certified as complete by the defendant. In the circumstances I find that these claims have not been proved.

46. Based therefore on the foregoing and on my analysis of the data contained in the above table this court makes the following findings:-(a)Claim for Retention Fees

47. Under Paragraph 3(I) and 3(II) of the plaint, the plaintiff claimed for unpaid retention of Kshs 3,150,560 fees, in respect of tender No. NIB/T/049/2014 – 2015 for construction of the Mwea Irrigation Scheme Walk Ways, Parking Lot and Workshop Bays. The plaintiff also claimed for retention fees of Kshs. 1,464,976 in respect of Tender Number NIB/T/049/2014-2015 for construction of Iraru Ithitwe Irrigation project. The parties both agreed that where payment had been made by the Defendant a payment voucher stamped PAID would be the proof of that payment. If the payment voucher was not so stamped, this would be an indication that no payment had been made against that voucher.

48. With regard to the claim for Kshs. 3,150,560 for the Mwea Walkway the payment voucher dated 23rd February 2017 stamped ‘PAID’ appears at Page 19 of Volume V of the plaintiffs bundle. The voucher indicated that a payment of Kshs. 10,364,555. 00 was made by the plaintiff. The voucher clearly indicates that this payment was in respect of“Certificate No. 2 of construction of Parking Lots, walkways and workshop bays at Mwea Irrigation Scheme Contract No. NIB/T/049/2014-2015 as per the attached memo and certificate. Retention 3,150,560” [Own emphasis]

49. The above voucher shows that the plaintiff was paid an amount of Kshs. 10,364,555 against a total invoice amount of Kshs. 14,386,900. 00. The retention was clearly indicated on the same voucher. There is no evidence to show that this retention was ever paid to the plaintiff. I therefore find that the plaintiffs claim for Kshs. 3,150,560 retention has been proved and is valid.

50. With respect to the claim in Paragraph 3(ii) of the plaint, the plaintiff stated that it was owed an amount of Kshs. 1,464,976 being a 50% retention for works done at the Iraru Irrigation Project. I have perused the voucher dated 1st September 2015 stamped as paid which appears at page 16 of Volume V of the plaintiff’s documents. The voucher indicates that an amount of Kshs 1,351,314. 53 was paid to the plaintiff. The narration on the voucher reads “Being release of 50% retention fee for construction of Iraru Irrigation Project in respect of contract No. NIB/T/103/2012-2013. ”

51. However in the plaint, the plaintiff states that the payment they are claiming is in respect of contract No. NIB/T/049/2014-2015.

52. It is quite obvious that the contract number quoted by the plaintiff does not correspond with the one cited in this voucher. It is trite law that a party is bound by their pleadings. The tender cited by the plaintiff has no evidence of part payment to warrant release of a final payment. Accordingly I dismiss this claim.

53. At Paragraph 3(iv) of the plaint is a claim for various unpaid LPO’s in respect of excavation works undertaken at the Bura Irrigation Scheme. Under this heading the plaintiff claims an amount of Kshs. 15,914,387. I have perused the documents supplied in support of this claim appearing at Pages 20-46 of Volume V of the plaintiffs bundle. None of the LPO’s have corresponding completion certificates. In the Cottingham Properties Ltd Case [Supra] it was held that a completion certificate is evidence of work done. As such there is no evidence that the works were indeed undertaken and completed and certified by the Defendant. I therefore dismiss this claim.

54. At Paragraph 3(VII) of the plaint, the plaintiff claims a sum of Kshs. 2,279,748 for unpaid invoices in respect of works carried out at the Mwea Irrigation Scheme. The Plaintiff did not however refer the court to specific LPO’s invoices and/or completion certificates. The plaintiff merely referred to two letters dated 18th June 2016 and 22nd December 2016 which letters did not give a breakdown of the amount claimed and as such cannot amount to evidence of the specific amount due to the plaintiff. Here again I find that No Completion Certificates have been produced to prove that the works were indeed undertaken to the satisfaction of the Defendant. Accordingly this claim also fails.

55. This court’s perusal of the documents produced before the court and an examination of the various LPOs as against the completion certificates and payment vouchers which are not stamped as paid lead me to conclude that the following claims have been satisfactorily proved.(a)Kshs. 3,150,560 – being payment of retention fees withheld by the Defendant.(b)Item 3(iii) in so far the plaintiff has proven the following LPO’s with attendant completion certificates to the satisfaction that the work was done and the payment vouchers remained unstamped for monies due the plaintiff.(i)29 LPOs for KES 480,000/- each from Vol II/PExh. 3 = 13,920,000/-(ii)1 LPO for KES 492,420/- from Vol II/PExh. 3 = 492,420/-(iii)3 LPOs for KES 492,246 each from Volume III/PExh. 4 = 1,476,738/-(iv)2 LPOS for KES 492,240 each from Volume III/PExh. 4 = 984,480/-(v)73 LPOs for KES 480,000 each from Volume III/PExh. 4 = 35,040,000/-(vi)2 LPOs for KES 480,000/- each from Volume IV/PExh. 5 = 960,000/-Sub total: KES 52,873,638/-c.Item 3 (v) in so far the Plaintiff has proven the following LPO’s with attendant completion certificates to the satisfaction that the work was done and the payment vouchers remained unstamped for monies due the plaintiff:i.3 LPOs for KES 493,000/- from Volume IV/PExh. 5 = 1,479,000/-ii.6 LPOs for KES 480,000/- from Volume IV/PExh. 5 = 2,880,000/-iii.24 LPOs for KES 492,246/- from Volume IV/PExh.5 = 11,813,904/-iv.4 LPOs for KES 492,420/- from Volume IV/PExh.5 = 1,969,680/-v.2 LPOs for KES 408,519/- from Volume IV/PExh.5 = 817,038/-Sub total: KES. 18,959,622/-Grand total: KES. 3,150,560 + KES 52,873,638 + KES. 18,959,622 = 74,983,820/-

56. Finally this suit succeeds. I enter judgment in favour of the plaintiff against the Defendant for the sum of Kshs. 74,983,820/- plus interest at court rates from the date of filing of the suit until payment in full. Costs of the suit are awarded to the plaintiff.

DATED IN NYERI THIS 20TH DAY OF JUNE, 2025. ..........................................MAUREEN A. ODEROJUDGE