https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8775

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISUMU** **CIVIL APPEAL NO. E214 OF 2024** **PHILEMON JOS ORIGA T/A** **WHIRL SPRING HOTEL KISUMU ……..……………..…..APPELLANT** **-VERSUS-** **KISII COUNTY ASSEMBLY ………………..…………..…RESPONDENT** ***(Being an appeal from the judgment delivered on 24th September, 2024 in Kisumu CMCC No. 196 of 2019 by Hon. Rashid, PM)*** ***JUDGMENT*** 1. The appeal herein arises from the decision of Hon. F. Rashid (PM) in a trial where the Appellant herein Philemon Jos Origa T/A Whirl Spring Hotel Kisumu, had sued the Respondent, Kisii County Assembly claiming Kshs.816,000/- being unpaid invoices for accommodation, food and hall hire (conference package) at the Appellant’s facility known as Whirl Springs hotel, general damages and interest on the said damages at court rates. 2. The Respondent denied the claim. It denied having entered into any contract with the Appellant for provision of such services or ever having any engagement with the Appellant. 3. The suit proceeded to full hearing and each of the parties called one witness. After full trial, the trial magistrate dismissed the Plaintiff’s suit for failure to establish any valid contract between the parties. 1. Aggrieved by the said Judgment, the Appellant has filed the instant appeal seeking to set aside the Judgment of the trial court and have the suit as filed in the lower court allowed. **Trial Court Evidence** 1. The Plaintiff, who is now the Appellant testified in court. His testimony is that he had entered into an oral contract with the procurement officer of the Respondent for provision of accommodation and conference services on various dates. He told court that at the request of the procurement officer, he provided the services to the defendant from 2nd - 5th September, 2016, 13th October 2016 and from 20th – 23rd October, 2016. 2. The Appellant produced in court list of participants that included the dates listed above and also lists for participants allegedly in attendance on the 11th, 12th and 14th October, 2016. He also produced in court corresponding invoices as exhibits 2, 3, 4, 5, 25, 26, 27, 28, 29 and 30. 3. On cross examination, the witness told court that he is well versed with procurement procedures and procurement rules and was aware that he needed to be pre-qualified before he could offer services to the county government. He confirmed that he was not prequalified, that he did not do any quotation and was never issued with any Local Supply Order (LSO) as the qualified supplier. He confirmed that the agreement with the procurement officer was not in writing. 4. The defendant on its part told court that the County Assembly does not have administrative functions. That these functions are performed by the County Assembly Service Board. That the County Assembly service board had a fully-fledged procurement unit published according to the law. He explained that procurement in public entities is initiated by a requisition by the user which is signed and approved by the accounting officer and stated that in the instant case, there was no requisition for the services and no approval from the accounting officer was sought. He proceeded to state that no quotations had been floated and there was no written contract as contemplated under Section 135(4) of PPDA that was signed by the accounting officer, who is the secretary to the board. 1. The witness told court that any procurement that does not follow the laid down procedure and is not approved by the accounting officer was fraudulent. DW1 pointed out that the invoices produced in court were signed by a member of the county assembly who was not authorized to handle administrative roles. He told court that the County Assembly Service Board had not advertised tenders or directly procured the services that the Appellant was claiming to have offered. 2. In her judgment the learned Magistrate, found the Appellant had not proved that a valid contract for provision of services existed between him and the Respondent, that the Local Service Orders produced in court were null and void ab initio and therefore the Appellant was not entitled to the orders sought. She went ahead and dismissed the Plaintiff’s suit against the defendant with costs. 3. Aggrieved by the said judgment the Appellants filed a Memorandum of Appeal with the following grounds:- 4. *The trial Magistrate erred in law and in fact in failing to properly evaluate the entire evidence and law when dealing with the matter in question.* 5. *The learned trial Magistrate erred in law and in fact in finding that the Appellant’s suit was unmeritorious and therefore dismissing it.* 6. *That the learned trial Magistrate erred in law and in fact in failing to find that the Appellant had actually provided services to the Respondent.* 7. *That the learned trial Magistrate erred in law and in fact in finding that the onus of implementing the provisions of PPDA was on the Appellant who is a supplier and not the procuring entity.* 8. *That the learned trial Magistrate erred in law and in fact in failing to order payment of the money owed to the Plaintiff by defendant in that the trial magistrate had failed to appreciate that the Appellant and Respondent had established a modus operandi of doing business and was estopped from pleading technicalities.* 9. *That the learned trial Magistrate was totally biased against the Plaintiff and gave judgment against the weight of evidence.* 10. The Appellants pleaded with the court to allow the appeal, set aside the judgment of the trial court and enter Judgment as sought in the plaint. 1. The court directed the appeal be canvassed by way of written submissions and each party filed their submissions. **Appellants’ Submissions** 1. In the submissions by the Appellant, the Appellant contends that the dismissal was against the weight of the evidence adduced in court. He submitted that there was a valid contract between the parties and there was a breach of that contract because the Respondent did not pay for the services offered. 2. The Appellant submitted that the Respondents are estopped from escaping liability as clear representation had been made to them and the Appellant relied on the representation and supplied the services to their detriment. The Appellant submitted that if the court was to allow this, it would be a case of unjust enrichment on the part of the Respondent. **Respondent’s Submissions** 1. The Respondent in their submissions stated that this was a public procurement and the procedure was to originate it by way of a requisition. This was not done. The Respondent further submits the procurement process used, would have been through request for quotations as per Section 105 of the Public Procurement and Asset Disposal Act (2015). This again was not the case. 2. That Section 135(4) of the Public Procurement and Asset Disposal Act (2015) states that until a written contract is signed by both parties, no contract may be signed or entered into between the procuring entity and the person submitting the successful quotation. In the instant case, there was no written contract. And based on the submissions above, the Respondent urged the Court to uphold the finding of the trial Magistrate and dismiss the Appeal. **Analysis and Determination** 1. This is being a first appeal I am alive to the duty of the court as stated in by the Court of Appeal in **Kenya Horticultural Exporters Ltd vs Julius Munguti Maweu Civil Appeal No. 9 of 2004,**where it was held that: - ***“On a first appeal the Court has the duty of re-evaluating the evidence, assess it and make its own conclusions without overlooking the conclusions of the trial court and bearing in mind that unlike the trial court it neither saw nor heard the witnesses.*** 1. I have considered the Memorandum of Appeal, the submissions in support and in opposition to the appeal, the trial court’s evidence and I will frame he following issues for determination:- 2. *Whether there was a valid contract for provision of Services between the Appellant and the Respondent,* *and if so, was there breach?* 1. *Whether the Respondent was estopped from denying liability on account of representation and the allegations that the services were actually provided.* 2. *Whether the trial court erred in finding that the Appellant was not entitled to the payment of the amounts claimed in the plaint.* ***Whether there was a valid contract for provision of Services between the Appellant and the Respondent, and if so, was there a breach.*** 1. The legal burden is placed on the person asserting an issue to prove it. In the instant appeal, the burden of proof is on the Appellant to prove that indeed there was a valid contract between him and the Respondent and therefore he ought to be protected by law. The Appellant had a duty to lay evidence before the court to not only prove the existence of a contract, but also a valid contract for provision of services that was capable of enforcement. 2. Evidence from the Appellant is that he had an oral contract with the procurement officer of the Respondent and based on the oral contract, he went ahead and provided both accommodation and conference services to the members of the Respondent’s County Assembly. 3. Section 135(4) of the Public Procurement and Asset Disposal Act (2015) states that until a written contract is signed by both parties, no contract may be signed or entered into between the procuring entity and the person submitting the successful quotation. In the instant case there is no signed contract and the Appellant has himself told court that he only had an oral agreement with the procurement officer. 4. Further, according to Section 13(4) of the County Government Act and Regulation 7(c) of the Public Procurement and Disposal Regulations (2006), only an Authorized Officer may sign and issue a contract with a procuring entity. The authorized officer in the case of the Respondent herein is County Assembly Services Board Secretary who is the accounting officer. A procurement officer is not one of the authorized officers under the County Government Act. 5. One of the Appellant’s grounds of Appeal was that the learned trial Magistrate erred in law and in fact in finding that the onus of implementing the provisions of PPDA was on the Appellant who is a supplier and not the procuring entity. I have considered this ground and submission and my view is that ignorance of law is not a defense. When confronted with such a consideration, the court in **Richard Otieno Harun vs Cyprian Ojwang Omollo (2007) eKLR KEHC 1395 (KLR)** had this to state; *“Further ignorance of law is no defence and so the Counsel cannot plead ignorance of the existence of Section 32(1) and the legal notice bringing that Section into operation and that these cannot be used to bend the law in favour of the appellant’s counsel account….”* 6. Further in **Royal Media Services Ltd v IEBC & 3 Others (2019/ eKLR**, it was held that:- *It is the duty of the Contractor as it is of the procuring entity to observe the provisions of Statute and the Regulations there under. Section 27 imposes an unequivocal responsibility on any contractor, supplier or consultant intending to supply goods or services to a public entity to comply with all the provisions of the Act and the Regulations. This duty, in my view, extends to the Contractor making due enquiries as to whether the procuring entity has complied with its side of the law and declining to enter into a contract which is procured in apparent disregard of the law. For that reason, a contractor or supplier cannot find refuge in the argument that compliance was an internal matter of the public entity when he has not done enough to enquire about compliance or he himself guilty of infringement..."both the procuring entity and the supplier bear a statutory obligation to comply with procurement laws”.* 1. My finding is that the fact that the Appellant may not have been aware that the procurement officer cannot orally enter into a Service provision contract with suppliers is no defense and this court cannot bend the law in his favour. 2. I state this, while I have in mind the testimony of the Appellant that he was aware of the requirement for prequalification, quotation and the requirement of a written down contract, but proceeded on an oral contract, without any prequalification, quotation or a written contract. 1. In any event, there is a reason why laws are laid down. They are meant to regulate processes and create an orderly way of operating in a society with different people who hold different interests. So that where there is a clear procedure for performing certain acts or transactions prescribed by the Constitution or an Act of Parliament, then that procedure should be strictly followed and the Appellant was obligated under the law to follow the procedure. 2. My finding therefore is that there was no valid contract between the Appellant and the Respondent for the provision of services and therefore, there were no rights and obligations that accrued between the parties. ***Whether the Respondent was estopped from denying liability on account of representation and the allegations that the services were actually provided.*** 1. The argument by the Appellant is that the Respondent had issued two LSOs, which are the documents issued to authorize public expenditure. That based on the LSOs the Appellant went ahead and provided the services that were sought. The Appellant argues that it would therefore be unconscionable and offensive to allow the Respondent to escape liability in the circumstances. 2. I have considered this argument, from the onset, it is a principle of law that “estoppel cannot be used to validate that which the law expressly prohibits”. I have taken my time to evaluate the LSOs that are the subject matter of the submission herein. The LSOs are not signed or stamped by the authorizing officer. They indicate to be signed by the procurement officer and an accountant. These two are not the accounting officers as the accounting officer is the clerk to the county assembly, who also sits as the secretary to the County Assembly Services Board. 3. But even assuming that they were properly signed and stamped, but which is not the case, then the position is that the entire procurement process must be without a blemish. In the instant case, there was no advertisement, no tenders were floated and no award was given for the supply. So that the procedure of procurement in public entities was completely overlooked. 4. And even further looking at the documents produced in court in support of the claim, the attendance sheets availed, especially for the conference dated 2nd September, 2016 had only 15 participants against the LSO that was produced in court with 70 participants. There were missing attendance sheets for the 3rd, 4th, 5th September 2016, 13th October, 2016 and 20th, 21st, 22nd and 23rd October, 2016 despite there being invoices. An invoice must correspond to the services offered and services offered were conference and accommodation. Therefore, there needed to have the list of participants who had been accommodated and conference services provided. 5. My finding is that it would be against the law to uphold such claims that are tainted with illegalities and not supported by the essential documents in a procurement process. And indeed, it is asettledprincipleof lawthatillegality vitiates a contract. In**Haile Menkerios vs Mureithi & Another - Wina Trading Company Limited (Third Party) [2024] KEHC 13993 (KLR)**the court held that it will not lend their aid to enforce an illegal transaction and that estoppel cannot validate an illegality or override statute or cure a constitutional defect. "In **Henry Muthee Kathurima vs Commissioner of Lands & another (2015) eKLR** the court stated: *“It is our view that estoppel cannot be used as shield to protect unlawfully acquired property; estoppel cannot be used to circumvent Constitutional provisions and estoppel cannot override express statutory procedures; there can be no estoppel against a* *statute.*" 1. My finding is that the Appellant cannot plead estoppel in the circumstances of the case herein. ***Whether the trial court erred in finding that the Appellant was not entitled to the payment of the amounts claimed in the plaint.*** 1. The Appellant submits that the trial Magistrate erred in finding that the Appellant was not entitled to the payment of the amounts claimed. I have considered this submission and since my duty is to evaluate the pleadings and the evidence on record afresh, I will state the following:- * 1. That the suit herein is bad in law and incompetent for the reason that the Respondent is named as Kisii County Assembly. Under the Constitution of Kenya, a county Assembly is not a legal person and is not capable of suing or being sued. The proper Respondent should have been the County Assembly Services Board. So that the suit should even have dismissed for this reason alone. 2. There was no written down contract of provision of services. So that there was nothing binding the Appellant to the Respondent. Further, there was no document whatsoever shown to the court indicating that the accounting officer had participated in this whole transaction. The whole transaction was therefore null and void ab initio. 3. The entire process was not supported by the mandatory procurement documents. The claim was not supported by comprehensive requisitions, quotations, invoices and lists of attendances. In other words, there was no sufficient evidence that indeed this process followed the laid down procedures and was accompanied by the necessary documents. The claim would therefore not be payable. 4. The court has already found that the doctrine of estoppel is not applicable in such a case where the transaction is riddled with illegalities. 1. In conclusion, the court finds that the trial Magistrate did not err in finding that the Appellant was not entitled to payment of the amounts that had been sought. 2. The upshot of the matter is that the Appeal herein lacks merit and the same is dismissed with costs to the Respondent. Orders accordingly. **JUDGMENT** delivered, dated and signed virtually at **Nairobi** This **19th** dayof **June,** 2026. **…………………………..………………** **L. M. WACHIRA** **JUDGE** **In the Presence of:** *Lindsy -* Court assistant *Ms Odhiambo for Mwamu…………* -for the Appellant. *N/A …………………………………….* -for the Respondent.