https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6924

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CIVIL DIVISION** **CIVIL CASE NO. E069 OF 2022** **PANORAMA TECHNICAL SERVICES LIMITED……..…....PLAINTIFF** **-VERSUS-** **NATIONAL YOUTH SERVICE ………….………..……..… DEFENDANT** **JUDGMENT** **Pleadings** 1. By a plaint dated **20/04/2022**, **Panorama Technical Services Ltd** *(hereafter the Plaintiff)* sued **National Youth Service** *(hereafter the Defendant)* seeking judgment against the Defendant for-; 2. *The sum of Kshs. 23,900,000/-;* 3. *Interest on the above at Court’s rates from 30/05/2019 being the date of acceptance of the goods until payment in full;* 4. *Costs of the suit;* 5. *Such other or further relief as this Honorable Court may deem just to grant.* 6. The Plaintiff states that on or about April 2015, it entered into a Contact for Service with the Defendant for provision, supply and delivery of round furniture metal pipes for fabrication of metal beds and chairs pursuant to Tender No. NYS/RT/04/2015-2016. That as per the contract, the Plaintiff undertook to perform its obligation and it did so by delivering the requested metal round furniture pipes 38\*1.5mm, which the Defendant accepted and acknowledged receipt of the goods, was issued with an acknowledgment, counter receipt voucher and a certificate of inspection confirming that the said goods were in good condition and order. 7. The Plaintiff further states that due to the urgency of the contract, it took a loan from its financier to pay for the goods at Apex Steels Ltd, where it sourced for the metal pipes and paid for the latter in full, with the aforestated being on the understanding and legitimate expectation that it would be paid within the agreed timelines in the contract. 8. That the goods were duly delivered and received by the Defendant whereinafter it received an acknowledgment of receipt, counter receipt voucher and a certificate of inspection confirming that indeed the goods were in good condition and order. 9. The Plaintiff avers that it thereafter provided the Defendant with invoices requesting for the contract consideration of Kshs. 23,900,000/- and further wrote a letter to the same effect however all requests were ignored with efforts thereof in futility. As such, the Defendant is in blatant breach of the contract, failed, neglected and refused to tender payment for goods duly delivered. 10. That thereafter, the Defendant placed an advert on 04/06/2020 titled “Final Verification of Historical Pending Bills/Claims” and despite the Plaintiff’s claim being verified pursuant thereto, the Defendant has refused and or ignored to make good on payment of a lawful debt due for goods supplied, hence seeks judgment against the Defendant for the sum claimed with interest as stated. 11. **The Defendant** filed a statement of **defence dated 10/06/2022** denying the key averments in the plaint. The Defendant goes on to state that it is a public institution governed by the provisions of the **Public Procurement and Asset Disposal Act** and in the instant matter the provisions of the said **Act** were not complied with in the proper manner leading up to the Plaintiff’s purported contract, to wit, any monies owing to the Plaintiff or contract thereto is *void ab initio*, adding that it was never served with any Notice of Intention to Sue as required by **Section 13A** of the **Government Proceedings Act**, and that the suit is barred by limitation under the provisions of **Section 3(1)** of the **Public Authorities Limitations Act**, and therefore the suit is fatally defective and ought to be struck out. The suit proceeded to full hearing during which only the Plaintiff called evidence in support of the averments in its pleadings. **Plaintiff’s Case and Evidence** 1. **Moffat Mwangi Mutheci** testified as **PW1**, identifying himself as the Managing Director of the Plaintiff and a businessperson. He proceeded to adopt his witness statement dated 20/04/2022 as his evidence in chief meanwhile adduced the documents appearing in the Plaintiff’s list of documents dated 20/04/2022 and supplementary list of documents dated 30/11/2023 as **Pexh.1-9.** 2. It was his evidence that a Notice of Intention to Sue was sent to the Defendant prior to the suit being filed by a letter dated 25/2/2019, and a certificate of posting dated 27/2/2019; that the Defendant had acknowledged the debt in the newspaper and its website. That the goods supplied and received by the Defendant were to be utilized towards making beds. He stated that the delivery notes were issued and duly acknowledged by the Defendant therefore the Court ought to enter judgment as sought for in the plaint. 3. **On cross-examination**, **PW1** testified that the last invoice to the Defendant was raised in 2015 whereas the suit was filed in 2022. He maintained that the suit is not time barred given that since 2015 he had visited the Defendant’s offices whereof the Defendant acknowledged that it received the goods however; it did not have money to pay for the same. That the goods supplied were equally captured as a pending bill in the Defendant’s website, and was subject of the verification exercise of pending bills by the Defendant. 4. It was his evidence that the Tender Supply was for furniture metal pipes for the year 2015/2016. That he confirmed receiving an Internal Memo from the Defendant as security for the supply of the materials. That he was waiting on requirements, and was subsequently told to supply the materials by the principal procurement officer. He maintained that the goods were received, to wit, the delivery notes were duly stamped by the Defendant. 5. The supplied goods were inspected and passed for use however he did not have a Local Purchase Order (LPO) for the same. He maintained that the Plaintiff has delivery notes for 10,000 pieces therefore leading to the amount claimed in the plaint. He concluded by stating upon issuance of the notice of verification by the Defendant, his bill was verified as pending and correct. 6. In **re-examination**, the Plaintiff repeated that he supplied the goods in question, which were received and acknowledged but despite acknowledging supply, failed to pay and or settle his invoices. That his supplier was Apex Steel Ltd alongside others, all of whom offered transport to the Defendant. In summation, he maintained that the Defendant accepted all of the Plaintiff’s deliveries of which have since not been disputed by any person or entity. 7. The Defendant opted not and or failed to call any evidence in support of the averments in its pleadings. At the close of the trial, directions were taken on filing of submissions. The respective parties duly complied. **Plaintiff’s Submissions** 1. Counsel for the Plaintiff began his submissions by restating the history of the matter, pleadings and evidence meanwhile condensed his submission into six (6) cogent issues, to wit, ***whether the suit is time barred pursuant to Section 3(1) of the Public Authorities* Limitations Act?** It was posited that although the cause of action arose from deliveries undertaken in or around 2015-2016, the limitation period was repeatedly interrupted and restarted through acknowledgments of debt by the Defendant. That the Defendant undertook several verification exercises regarding pending claims and expressly invited suppliers, including the Plaintiff, to submit documents for verification, to wit, the Plaintiff’s claim appeared among those verified by the Defendant. Therefore, the Defendant cannot acknowledge the debt through repeated verification exercises and later rely on limitation to defeat the claim therefore the suit as filed, is not statute barred . 2. The decisions in **Gatirau Peter Munya v Dickson Mwenda Kithinji & 3 Others [2014] eKLR, National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd [2001] EA 503, CMC Holdings Ltd v Joseph Karanja Kamau [2009] eKLR** and **Hassan Nyanje Charo v Khatib Mwashetani & 3 Others [2014] eKLR** were cited in the forestated regard. 3. ***On whether there was service of Notice of Intention to Sue pursuant to Section 13A Government Proceedings Act,*** it was summarily argued that the notice of Intention to Sue dated 25/02/2019 was sent through the Plaintiff’s advocates via courier and registered post whereas the Defendant’s address used was that of the Director General, National Youth Service. That a certificate/receipt of posting dated 27/02/2019 was produced whereas by dint of **Section 45(1)** of the **Interpretation and General Provisions Act**, service by registered post is deemed effective once properly dispatched. Counsel argued that the Defendant merely denied service without adducing evidence to rebut the postal receipt as such the suit is competently before the Court given that service was effectively proved. The decisions in **Housing Finance Company of Kenya v Mwaura Ngenye [2009] eKLR** and **Kenya Commercial Bank Ltd v J.N. Kimura [2005] eKLR** were relied on. 4. **On whether Defendant was in breach of contract,** it was posited that-; a valid contract existed between the parties for supply and delivery of metal pipes vide Tender No. NYS/RT/04//2015-2016; the Plaintiff fully performed its obligations by supplying and delivering the agreed goods; the Defendant acknowledged receipt through signed delivery documents and inspection records; the Defendant utilized the goods for the intended purpose; and that despite receipt and use of the goods, the Defendant failed to pay the contractual consideration, and thus in breach of its contractual obligation. 5. It was further submitted that had the supplies been fraudulent or fictitious, the Defendant ought to have instituted criminal or civil proceedings against the Plaintiff, which it did not. While calling to aid the decisions in **Photo Production Ltd v Securicor Transport Ltd (1980) AC 827, 848-849**, **Hydro Water Well (K) Ltd v Sechere & 2 Others (Sued in their representative capacity as the Officers of Chae Kenya Society) [2021] KEHC 22 (KLR)** and **William Kazungu Karis v Cosmus Angora Chanzera [2006] eKLR,** counsel argued that the Plaintiff having fully discharged its contractual obligations it is entitled to the full contractual amount claimed in the plaint. 6. As to whether the Plaintiff discharged his burden of proof, counsel relied on the decisions in **Evans Kidero v Speaker of Nairobi City County Assembly & Another [2018] eKLR**, **Interchemie EA Limited v Nakuru Veterinary Centre Limited (HCCC No. 165B of 2000)** and **Kenya Akiba Micro Finance Limited v Ezekiel Chebii & 14 Others [2012] eKLR** to posit that the Plaintiff discharged its burden of proof through documentary evidence and oral testimony. That the Defendant failed to call witnesses, tender rebuttal evidence, produce the final verification report despite being in possession of it therefore this Court ought to draw an adverse inference against the Defendant as the Plaintiff’s evidence remains uncontroverted. 7. Penultimately, while calling to aid the decision in **Dormakaba Limited v Architectural Suppliers Kenya Ltd KEHC [2021] 210 (KLR)** counsel submitted that the Plaintiff having proved its case on a balance of probabilities, the existence of a contract and the Defendant’s breach of the same, it follows that the Defendant is liable to the full contractual payment as well as interest thereon. The Court was therefore urged to allow the suit with costs. **Defendant’s Submissions** 1. On its part, counsel equally set out a brief history of the matter and went on to coin seven (7) issues for the Court’s consideration. ***On whether the suit is time barred,*** counsel relied on **Section 3(2)** of the **Public Authorities Limitations Act** to submit that the Plaintiff’s cause of action allegedly arose in 2016 yet the suit was filed in 2022 outside the statutory three-year limitation period applicable to contractual claims against government entities. It was further submitted that the newspaper advertisement was a general call for submission of claims and was not specifically addressed to the Plaintiff whereas no report from the pending bills verification committee was adduced. Consequently, there was no acknowledgment capable of extending the limitation period within which the Plaintiff ought to have filed its claim. Thus, the Plaintiff’s suit ought to be dismissed for being time barred. 2. ***On whether there was valid contrac*t,** counsel submitted that the Plaintiff -; failed to establish the elements of a contract; failed to prove that the transaction complied with the relevant provisions of the **Public Procurement and Asset Disposal Act**, given that the Plaintiff is a public entity; failed to evince any documentation showing that he was awarded any tender for supply of bed-making materials or metal pipes; and failed to evince any written contract. 3. It was further submitted that the Plaintiff was neither the author nor the recipient of the internal memo whereas the latter could not constitute an LPO or contractual instrument. That delivery notes alone cannot establish a contract in the absence of an LPO therefore the Court cannot enforce a claim founded on an illegality or conduct contrary to statute. The decisions in **Stancom Sacco Society Limited v Alliance One Tobacco Limited [2018] eKLR, Vincent M. Kimwele v Diamond Shield International Limited [2018] eKLR, Kenya Pipeline Co. Ltd v Glencore Energy (UK) Ltd [2015] eKLR** and **Holman v Johnson [1775] 1 Cowp 341** were cited in the above regard. 4. In the alternative and without prejudice to the above, submitting on whether the Plaintiff complied with the contract terms or whether there was breach of contract, counsel posited that even if there was a valid contract, the Plaintiff failed to prove performance of its obligations, further positing that there were glaring inconsistencies in the delivery notes; there was unexplained delay between delivery notes and invoices; the Plaintiff failed authenticate invoices from Apex Steel and Tuff Steel by calling witnesses from the said company; that the receipt vouchers and certificate of inspections lacked the Defendant’s stamp whereas the purported signatories were neither identified or called as witness therefore the Plaintiff did not prove performance on its part and or breach of contract on the part of the Defendant. Counsel. 5. Decisions in **Trust Bank Limited v Hemanshu S. Mehta & Others [2000] eKLR, Kenya Breweries Ltd v Kiambu General Transport Agency Ltd [2000] eKLR** and **Koinange & 13 Others v Charles Karuga Koinange [1986] KLR 23** in support of the above arguments, and finally relied on the decision in **Karugi & Another v Kabiya & 3 Others (1987) KLR 347** to submit that even in the absence of rebuttal evidence from the Defendant, the Plaintiff failed to adduce credible and believable evidence on a balance of probabilities, thereby arging the Court to dismiss the Plaintiffs suit with costs. **Analysis and Determination** 1. The Court has carefully considered the respective parties’ pleadings, the evidence adduced, and the parties' written submissions and postulates that the **Issues for determination concern-;** 2. *Whether the Plaintiff has made out a case against the Defendant on a balance of probabilities?* 3. *Whether the Plaintiff is entitled to the reliefs sought?* 4. *Who ought to bear costs?* 5. Before addressing the substratum of the suit, I wish to address the twin preliminary questions concerning **Section 3(2)** of the **Public Authorities Limitations Act** and **Section 13A** of the **Government Proceedings Act** as respectively submitted on and pleaded by the Defendant. Concerning **Section 13A** of the **Government Proceedings Act**, despite the Defendant pleading the same, it failed to offer any submission that the issue was abandoned, given the lack of any advanced arguments, in the Defendant’s submissions. 1. In any event, **Majanja, J. in Kenya Bus Service Ltd & another v Minister for Transport & 2 others [2012] KEHC 2402 (KLR),** whose rendition I wholly concur with, succinctly observed that the mandatory requirement of notice under **Section 13A** clearly violates **Article 48 of the Constitution** by limiting access to Courts, to wit, such a requirement is unconstitutional. Therefore, notwithstanding the abandonment, the issue would not have been sustained. in any event. 2. ***As to whether the Plaintiff’s suit is statute barred*** by dint of **Section 3(2)** of the **Public Authorities Limitations Act?** The purport of the **Act** is captured as an **Act** of Parliament to provide for the limitation of proceedings against the Government and a local authority, and for purposes incidental to and connected with the foregoing. **Section 2(2)** of the **Act** goes on to describe, for the purpose of the **Act**, what Government and Local Authority, constitute. **Section 3(2)** on its part provides that-; **No proceedings founded on contract shall be brought against the Government or a local authority after the end of three years from the date on which the cause of action accrued.** 1. That said, the Defendant is a creation of **National Youth Service Act** and is established by dint of **Section 5** of the said **Act**. **Sub-section (2) of the Act** provides that-; **The National Youth Service shall be a body corporate with perpetual succession and a common seal and shall in its corporate name—** 1. **have the power to sue and be sued;** **(b) acquire, hold and dispose of movable and immovable properties for the purposes of this Act; and** **(c) do or perform all such other things or acts for the proper discharge of its functions under the Constitution, this Act or any written law, as may be lawfully done or performed by a body corporate.** 1. A reading of **Section 2 & 3(2)** of the **Public Authorities Limitations Act** as read with **Section 5(2)** of the **National Youth Service Act,** the Defendant does not constitute a Government or Local Authority in my consideration. The provisions of **Section 3(2)** of the **Public Authorities Limitations Act** would be applicable to it. 2. The Defendant by dint of **Section 5(2)** of the **National Youth Service Act** is an autonomous, corporate, statutory body specifically with power to sue and be sued, as such the Defendant cannot hide behind the cloak of the Attorney General when sued in order to take advantage of the 30 days statutory notice. As ably held in the case of **Bora Global Limited v National Youth Service [2022] KEHC 10268 (KLR).** Consequently, the Defendant’s challenge as to the competency of the Plaintiff’s suit on the premise of **Section 3(2)** of the **Public Authorities Limitations Act,** cannot sustain in the circumstance. ***Whether the Plaintiff has made out a case as against the Defendant on a balance of probabilities?*** 1. Moving on to the substratum of the suit, pertinent to the determination of the said issues, are the pleadings, which forms the basis of the respective parties’ case before this Court. See-; **Wareham t/a A.F. Wareham & 2 Others v Kenya Post Office Savings Bank [2004] 2 KLR 91**. Akin to pleadings is evidence in support of the pleadings, and having set out the respective pleadings earlier in this judgment, the same do not require restatement at this juncture. 2. Nevertheless, the applicable law as to the burden of proof is found in **Section 107, 108** and **109** of the **Evidence Act**. As rightly submitted by the Defendant, in **Karugi & Another** (supra)the Court of Appeal stated that-: *“ The burden on a plaintiff to prove his case remains the same throughout the case even though that burden may become easier to discharge where the matter is not validly defended and that the burden of proof is in no way lessened because the case is heard by way of formal proof….The plaintiff must adduce evidence which, in the absence of rebuttal evidence by the defendant convinces the court that on a balance of probabilities it proves the claim.”* 1. Here, it necessitates mentioning that in order to sustain any claim founded on breach of a contractual obligation, there ought to exist a valid contract, in the first instance. Patently, the role of this Court plays in adjudicating over a dispute between contracting parties has since been settled in the oft-cited decision of **National Bank of Kenya Ltd vs Pipeplastic Samkolit (K) Ltd & Another [2001] eKLR**,whereinit was succinctly stated that-; *…..“A court of law cannot re-write a contract between the parties whereas its role is limited to interpretation of the same. This is because contracting parties are free to specify the terms and conditions of their agreement, and that when parties do contract, the court does not have the right or ability to substitute its judgment for that of the parties.”* 1. The Plaintiff through **PW1** testified that it entered into a contract of service with the Defendant pursuant to Tender No. NYS/RT/04/2015-2016 for provision, supply and delivery of metal pipes for fabrication of metal beds and chairs. That the initial tender was for the supply of beds, to wit, the Plaintiff had been awarded the tender to supply the beds as per the tender award letter dated 25/10/2012 however midway through the same, the Defendant decided to make the beds itself to save on costs and instead sought for the supply of the metal round furniture pipes. 2. Repeatedly, the Defendant contends that the Plaintiff failed to establish the existence of a contract for what was actually supplied and or compliance with the relevant provisions of the **Public Procurement and Asset Disposal Act**. That the aforementioned internal memo did not constitute an LPO or a contractual instrument upon which the Plaintiff could premise its claim. Notably, on cross-examination, **PW1**, confirmed that “metal pipes” was not written in the tender notice whereas he did not have a Local Purchase Order (LPO) in respect of the goods supplied to the Defendant. 3. **Therefore, the question that begs at this point, as earlier set out, is whether there was a valid contract between the disputing parties herein?** A cursory review of **Pexh.2,** as adduced by the Plaintiff reads as “Tender Result Notification’ letter dated 25/10/2012, from the Ministry of Youth Affairs and Sports. The letter is titled *“Supply and Delivery of Bedding, Linens, Beds Mattresses and Mosquito Nets” “Tender No. Moyas/22/2010-2011”***.** It reads in part as follows-; ***Reference is made to your application for the above tender. I am pleased to notify you, that you were successful and awarded as follows-;*** ***M/s Panorama Technical Services Ltd P.O Box……….Nairobi to supply double decker beds 6 x 3 at Kshs. 15,253/- per decker bed.*** ***The contract documents are being prepared and will be signed within twenty one (21) days subject to availing a Performance Bond of 5% of the total amount and there being no appeal in the ensuing fourteen (14) days from the date hereof.*** ***I would appreciate if your letter of acceptance is received in my office within fourteen (14) days of this letter”*** 1. **Pexh.1**, as captured in the Plaintiff’s list of documents reads as a **“*Copy of Contract Tender No. NYS/RT/04/2015-2016*”** however what was actually adduced before Court was not the entirety of the contract itself, but rather an excerpt page of a document titled *Tender No. NYS/RT/04/2015-2016* followed by a document captioned **“*Price Schedule of Goods*” “*Tender No. NYS/RT/04/2015-2016 Supply and Delivery of bed making materials -Phase*** *III***”,** merely listing *Item description*, *Quantity*, *Unit Price*, *Total Price* and *Country of Origin****.*** Meanwhile, the latter document appears to have been executed by a representative of the Plaintiff. 2. From a cursory review of **Pexh.1,** as adduced, it fails to meet key tenets of what a contract entails, given the absence of relevant information such as date or duration of the contract, relevant clauses, terms and condition governing the contacting parties. And the execution block, evincing the Plaintiff’s acceptance of the contract as advanced by the Defendant. 3. Interestingly, as earlier noted, the tender award notification adduced by **PW1** concerned **Tender No. Moyas/22/2010-2011 relating to supply and delivery of Bedding, Linens, Beds Mattresses and Mosquito Nets which required the Plaintiff to forward its letter of acceptance within fourteen (14) days of 25/10/2012.** **Yet no tender award notification was adduced with respect of Tender No. NYS/RT/04/2015-2016 Supply and Delivery of bed making materials - Phase III, an acceptance letter in respect of the latter tender, a Local** **Purchase Order in respect of the above or a variation of Tender No. Moyas/22/2010-2011 to reflect Tender No. NYS/RT/04/2015-2016** 1. Further a perfunctory review of **Pexh.1-9** save for an Internal Memo, Invoices, a raft of Delivery Notes, Counter Receipt Voucher, Issue and Receipt Voucher, Certificate of Inspection, Demand Letters and Plaintiff Statement of Deliveries there was no evidence of the tender award for Tender No. NYS/RT/04/2015-2016 and or the Plaintiff being contracted to Supply and Delivery of bed making materials. A document with handwritten notes capturing “*NYS Pending Bills 4/6/20”* *“List from NYS Website”* appears merely to be a printout excerpt with no indication who is the author or whether it originated from the Defendant. 2. Equally, while **PW1** on cross examination testified that the Plaintiff delivered 10,000 pieces of metal round furniture pipes 38\*1.5mm, the Counter Receipt Voucher, Issue and Receipt Voucher and Certificate of Inspection, purportedly from the Defendant, did not reflect the aforestated number of allegedly furniture pipes. 3. As is, the documents relied on by the Plaintiff leave more questions than answers as to whether there was actually a tender and contract awarded by the Defendant in respect of Supply and Delivery of bed making material, as purported by the Plaintiff. 4. Meanwhile, it would be remiss of the Court not to state that by dint of the guiding principles set out in **Section 4** of the **National Youth Service Act**, it is indubitablethat the Defendant being public entity within the meaning ascribed in the **Public Procurement and Asset Disposal Act,** the provisions of the latter Act, would invariably be applicable to it. Likewise, on the issue, there was no evidence placed before the Court, concerning compliance with relevant provisions of **Act.** In the end, the glaring discrepancies as highlighted above work against the Plaintiff’s cause meanwhile buttress the Defendant’s argument that there was no valid contract between the parties hereto. See Paragraphs 43 and 44 of this judgment 5. Here and likewise as in the cases of **Bora Global Limited** (supra), and **Wareham** **t/a A.F Wareham** (supra), the Court grappled with variances and discrepancies in the Plaintiffs documents and evidence, arriving at the unbridled determination upon the material placed before it, that the Plaintiff failed to prove its case to the required standard as provided at **Section 107** of the **Evidence Act**, whereas the burden of proof lay with the Plaintiff, but whose evidence did not support the facts as pleaded, it failed as the party with the burden of proof. See Paragraphs 40 and 44 of this judgment. ***Final disposition*** 1. **The result of the foregoing is that the Plaintiff’s suit must fail. It is dismissed.** 2. **Applying my mind to provisions of Section 27 of the Civil Procedure Act and the proviso thereto, and circumstance appertaining to the entirety of the case, I direct and order that each party shall bear own costs of the suit.** Orders Accordingly. **Delivered Dated and Signed at Nairobi this 21st day of May 2026.** ………………………. **JANET MULWA.** **JUDGE**