https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1537

**IN THE COURT OF APPEAL AT NAIROBI** **(CORAM: MUSINGA (P), J. MOHAMMED, & MUMBI NGUGI, JJ.A.)** **CIVIL APPEAL NO 239 OF 2019** **BETWEEN** **ROYAL MEDIA SERVICES LTD APPELLANT** **AND** **INDEPENDENT ELECTIONS &** **BOUNDARIES COMMISSION …………………....…… 1ST RESPONDENT MR. ISSACK HASSAN ...................................…… 2ND RESPONDENT MR. J. H. OSWAGO ……………..………………...….… 3RD RESPONDENT CABINET SECRETARY MINISTRY OF FINANCE** Sued **THROUGH THE ATTORNEY GENERAL ….... 4TH RESPONDENT** *(Being an appeal from the Judgment and Decree of the High Court of Kenya at Nairobi (Tuiyott, J.) dated 5th April 2019* ***in*** ***HCC No. 352 of 2014)*** ***\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\**** **JUDGMENT OF THE COURT** 1. This is a first appeal arising from the decision of the High Court at Nairobi (Commercial and Tax Division) delivered on ***5th April 2019*** in ***High Court Civil Suit No. 352 of 2014***, in which the court dismissed the appellant’s claim for Kshs.182,000,000/= allegedly arising from services rendered in a voter mobilization campaign conducted prior to the 2013 general election. 2. The brief background to this appeal is that Royal Media Services Limited, (**the appellant**), instituted **High Court Civil Suit No. 352 of 2014** seeking to recover Kshs.182,000,000/= allegedly incurred in an emergency voter mobilization campaign undertaken shortly before the 2013 general election. The appellant contended that in December 2012, the 2nd respondent, Mr. Ahmed Issack Hassan (**Mr. Hassan**), approached it, both in his individual capacity and in his capacity as Chairperson of the Independent Electoral and Boundaries Commission (**IEBC**), and requested its assistance in addressing the low voter registration numbers recorded during the ongoing voter registration exercise. According to the appellant, the 2nd respondent held discussions with its directors and subsequently involved the 3rd respondent, Mr. J. H. Oswago (**Mr. Oswago**), who was then the Chief Executive Officer of the IEBC regarding the nature of the services required and the charges payable. 3. The appellant pleaded that following those discussions, it was agreed that it would undertake an urgent nationwide media campaign through its radio and television platforms and conduct roadshows across the country to mobilize voter registration. It asserted that it deployed its vernacular radio stations, which it stated had extensive national reach, and rolled out roadshows in various parts of the country between 13th December 2012 and 18th December 2012. It maintained that the campaign significantly boosted voter registration numbers and that, upon rendering the services, it prepared booking sheets and other supporting documents showing the advertisements aired and the services rendered. The appellant further pleaded that copies of those booking sheets were acknowledged and stamped by the 3rd respondent, and that those documents formed the basis upon which invoices and a summary of accounts totaling Kshs.182,000,000/= were generated. 1. The appellant further contended that despite repeated demands, payment was not made. It pleaded that the 4th respondent, the Cabinet Secretary responsible for the National Treasury, had confirmed the availability of funds for the exercise and authorized the IEBC to proceed to make the payment. On the basis of those allegations, the appellant sought judgment jointly and severally against the respondents for Kshs.182,000,000/= together with interest at the rate of 20% per annum, costs of the suit, and any other relief that the court deemed appropriate. 1. The IEBC, in its defence, denied that it contracted the appellant in December 2012, or at any other time, to broadcast advertisements, conduct roadshows, or provide voter mobilization services as alleged. It also denied the appellant’s assertion that it mobilized its vernacular radio stations at the IEBC’s request, and put the appellant to strict proof of those allegations. 2. It further denied that the appellant participated in the voter registration campaign on its behalf or that such services attracted invoices amounting to Kshs.182,000,000/= or any other sum. It also denied that the appellant had provided any terms and conditions governing the alleged campaign and similarly denied being in default of payment of the claimed amount. 3. In addition, the IEBC pleaded that any procurement of services attracting monetary compensation was subject to the Public Procurement and Disposal Act, 2005 and maintained that the services allegedly rendered by the appellant were never procured in accordance with that statutory framework. It further averred that procurement functions within the IEBC fell under management led by the Chief Executive Officer/Commission Secretary and that the appellant knew, or ought to have known, the constitutional and statutory role of the Chairperson under the Constitution and the Independent Electoral and Boundaries Commission Act, 2014. 1. The IEBC further contended that if the appellant rendered any services at all, then such services were gratuitous and incapable of attracting legal liability on its part. Additionally, it pleaded that the appellant’s claim was unenforceable on the basis that enforcement would be *contra bonos mores (contrary to good morals),* and therefore illegal, unlawful, irregular, and against the law. 2. The 2nd and 3rd respondents also filed a joint defence which largely mirrored the defence filed by the IEBC. They denied entering into any lawful agreement with the appellant and contended that any procurement of services by the IEBC was governed by the Public Procurement and Disposal Act, 2005. They maintained that the alleged engagement did not comply with the mandatory procurement framework established under the law and that procurement functions fell within the IEBC’s procurement structures, rather than their personal authority. They further denied that the appellant was entitled to the sums claimed and pleaded that the alleged services were gratuitous and incapable of giving rise to legal liability. 1. The 4th respondent likewise denied liability and denied being a party to any agreement between the appellant and the IEBC. It contended that its role was limited to oversight and control of public expenditure and that it merely advised the IEBC on the use of resources within approved budgetary allocations. It denied authorizing any contract between the parties and further pleaded that the claim against it was statute-barred. It consequently urged the court to dismiss the suit with costs. 2. At the hearing, Royal Media called Mr. Wachira Waruru (**Mr.** **Waruru**), its Group Managing Director, who testified as PW1. He adopted his witness statement and testified that in December 2012, he attended a meeting together with Dr. Samuel Kamau Macharia (**Dr. Macharia**), the appellant’s Chairman, with Mr. Hassan and Hon. Njeru Githae, who was then the Minister for Finance. He testified that the meeting concerned the low voter registration numbers and the urgent need to increase registration before the deadline lapsed. According to him, the appellant was requested to use its media platforms to mobilize voters across the country. He stated that the appellant commenced the campaign on 13th December 2012 and concluded it on 18th December 2012, after which invoices were issued for payment. During cross-examination, he acknowledged that there was no written contract and that the services had not been subjected to a formal procurement process, but maintained that the urgency of the matter necessitated immediate action. 1. The appellant’s second witness was Dr. Macharia, its Chairman, who adopted his witness statement as his evidence in chief. He testified that in December 2012, the 2nd respondent, Mr. Hassan, then Chairperson of the IEBC, and Hon. Njeru Githae, the then Minister for Finance, met him at his office to discuss how Royal Media could assist in boosting voter registration numbers, which had reportedly stalled at about nine million voters. Mr. Waruru was also present at the meeting. 2. He stated that the appellant proposed a nationwide voter mobilization campaign through roadshows, radio, and television platforms, which proposal was accepted. According to him, it was agreed that the campaign would run for six days, from 13th December 2012 to 18th December 2012, at a cost of Kshs.3,000,000/= per station per day. He further testified that Mr. Waruru subsequently forwarded booking sheets containing the details and charges of the roadshows, which were signed and stamped by the IEBC, while Hon. Njeru Githae assured them that the National Treasury would release the necessary funds. 3. He further testified that the appellant carried out the campaign, and that by the end of the exercise, voter registration had increased by about five million voters. Upon completion of the exercise, the appellant forwarded invoices to the IEBC, but payment was not made, despite repeated promises and demand letters. He maintained that the services were not gratuitous, and stated that the appellant only undertook the assignment after receiving assurances from the 2nd respondent and Hon. Njeru Githae that payment would be made. During cross-examination, he acknowledged that although procurement laws ordinarily required a tender process, the circumstances were urgent and in the public interest. 1. The defence case was led by the 2nd respondent, Mr. Hassan, the then Chairperson of the IEBC, who testified as DW1 and adopted his witness statement as his evidence in chief. He testified that in December 2012, Dr. Macharia contacted him with a proposal that the appellant could partner with the IEBC to boost voter registration numbers, which were then low. He subsequently met Mr. Waruru and Dr. Macharia at the appellant’s offices, where they indicated that they were willing to assist the IEBC in publicizing voter registration. He stated that the IEBC had no budget for the exercise at such short notice, but he was informed that the National Treasury was willing to finance the initiative, subject to the IEBC’s approval. He thereafter undertook to forward the proposal to the Commission’s Chief Executive Officer, Mr. Oswago. 2. He further testified that he suggested that the appellant undertake the exercise as part of its corporate social responsibility programme and, upon later seeing the appellant’s roadshows urging voter registration, he believed that the appellant had accepted that proposal and was offering the services free of charge. He denied that any agreement had been reached on the terms now relied on by the appellant, and maintained that he lacked authority to bind the IEBC to such an arrangement, particularly one that would fall outside the requirements of the Public Procurement and Disposal Act. He also denied that the IEBC was indebted to the appellant. 1. During cross-examination, he confirmed that voter registration was due to close on 18th December 2012, and that there had been urgency to mobilize voters. He acknowledged that an agreement had been reached for the appellant to provide mobilization services and that he forwarded the proposal to Mr. Oswago for further action. He further stated that Dr. Macharia had presented the initiative as a national service and a corporate social responsibility undertaking, with the appellant only expecting reimbursement for vehicle-related costs. He added that the IEBC did not participate in the official launch of the mobilization exercise and conceded that, under procurement law, an accounting officer could undertake single-source or direct procurement in certain circumstances. 2. After the full hearing, the trial court rendered judgment on 5th April 2019. Before identifying the formal issues for determination, the court made an important preliminary finding at paragraph 18 of the judgment on a matter that had been expressly contested by the respondents, namely, whether the appellant had in fact rendered the impugned services. Although this was not among the issues formally identified for determination, the trial court made a finding that the services had in fact been rendered. It relied on Mr. Hassan’s admission in both his written statement and oral testimony that he had seen the appellant’s roadshows urging voter registration and found further corroboration in the advertising booking sheets bearing the IEBC’s stamp, which it held signified approval for the services. Since those documents had not been disputed by the defence, the court was persuaded that the appellant had rendered the services in question. 3. Having made those preliminary findings, the trial court identified three issues for determination, namely, whether the procurement of the services contravened the Public Procurement and Disposal Act, 2005; whether the IEBC, Mr. Hassan and Mr. Oswago were nonetheless liable despite any illegality in the procurement process; and who should bear the costs of the suit. 1. On the first issue, the court observed that the IEBC, as a constitutional commission established under Article 88 of the Constitution, was a public entity within the meaning of the Public Procurement and Disposal Act, 2005, and was therefore bound by the procurement procedures prescribed under that statute. The court also acknowledged that voter registration numbers had fallen below target and relied on Mr. Hassan’s letter of 11th December 2012 requesting Kshs. 200 million from the Treasury for voter education and media campaigns as evidence of the urgency facing the IEBC. It also accepted the appellant’s evidence that there was concern that low voter registration could affect the impending elections. While the court accepted that those circumstances could potentially justify resort to direct procurement under section 74 of the Act, it emphasized that direct procurement remained an exceptional method that had to strictly comply with the statutory framework. 2. The court proceeded to examine sections 74 and 75 of the Public Procurement and Disposal Act, 2005 together with Regulations 58 and 62, and held that the law required the IEBC to document the reasons for adopting direct procurement, ensure that negotiations were conducted by at least two officials of the procuring entity, obtain prevailing market prices, and reduce the resulting agreement into a written contract signed by both parties. Applying those requirements to the evidence, the court found that the only meeting preceding the alleged contract was the meeting of 11th December 2012 attended by Mr. Hassan, Dr. Macharia, Mr. Waruru and the then Cabinet Secretary for Finance. Since Mr. Hassan was the only representative of the IEBC present, the court held that the meeting did not satisfy Regulation 58 which requires at least two representatives of the procuring entity. It also relied on Mr. Waruru’s admission that no formal written contract had been executed, and held that the advertising booking sheets, despite being endorsed by the IEBC, did not satisfy the requirement under section 75(c) that the resulting contract be in writing and signed by both parties. It therefore concluded that the procurement process was fundamentally flawed and unlawful. 1. On the second issue, the trial court rejected the appellant’s argument that it should not be prejudiced by the IEBC’s failure to comply with what it described as internal procurement processes. Relying on section 27 of the Public Procurement and Disposal Act, 2005, the court held that the obligation to comply with procurement law rested not only on the procuring entity, but also on contractors, suppliers and consultants dealing with public entities. In the court’s view, the appellant had a duty to make due inquiries as to whether the IEBC had complied with the law, and to decline to proceed where the procurement process was evidently irregular. 2. The court found that the appellant knew, or ought to have known, that the statutory requirements had not been met. In particular, it held that it should have been apparent to the appellant that the meeting of 11th December 2012 did not constitute negotiations contemplated under the statute, and that services were being rendered before a formal written contract had been concluded as required by law. The court therefore declined to excuse the appellant from what it considered to be a flawed procurement process. 1. Although the court acknowledged the appellant’s complaint that the IEBC had benefited from the services without payment, it held that there was a greater public interest in refusing to enforce transactions that violate procurement law. Applying the doctrine of *ex turpi causa non oritur actio*, (no action can arise from a dishonourable cause), the court held that it could not sanction an illegal contract merely because one party had already performed its obligations. It emphasized that relaxing compliance standards would encourage routine breaches of procurement laws. 2. The court, however, declined to entertain the respondents’ allegations that the transaction was tainted by nepotism, abuse of office and corruption, holding that those were serious allegations of criminal conduct which had neither been pleaded nor proved to the requisite standard. 3. The trial court further held that the claim against the 4th respondent was statute-barred under the Public Authorities Limitation Act, Cap 39, and also found no basis for imposing personal liability on Mr. Hassan and Mr. Oswago. In the result, it dismissed the appellant’s suit with costs. 1. Being aggrieved and dissatisfied with the decision of the trial court, the appellant lodged this appeal. In the memorandum of appeal dated 31st May 2019, the appellant contends that the trial court erred in law and in fact by determining the issue of limitation in favour of the 4th respondent despite the issue not having been fully canvassed at trial; by misapprehending the nature of its claim and failing to appreciate that the 2nd and 3rd respondents had been sued in their individual capacities as the architects of the impugned transaction; by holding that the 2nd respondent had tendered evidence on behalf of the 1st and 3rd respondents when only his personal witness statement had been adopted as evidence; and by failing to appreciate that no evidence had been tendered on behalf of the 1st and 3rd respondents. 2. The appellant further faults the trial court for declining to enter judgment in its favour despite finding that the services had in fact been rendered; for failing to properly consider its arguments on the doctrine of *quantum meruit (as much as is deserved)*; for holding it accountable for non-compliance with procurement procedures over which it had no control; for failing to appreciate the urgency surrounding the voter registration exercise and misapplying procurement law; for awarding costs to the respondents despite finding that they had benefited from the services rendered; and for ultimately rendering a decision that, according to the appellant, infringed its economic rights. 1. At the hearing of this appeal, learned counsel, **Mr. Kipkorir**, appeared for the 1st to 3rd respondents, while learned counsel, **Mr. Kiarie**, appeared for the 4th respondent. Although the appellant had been duly served with the hearing notice, there was no appearance on its behalf. The appellant had, however, filed written submissions. Counsel for the respondents elected to rely entirely on their respective clients’ written submissions. 2. Turning to the issues raised in the appeal, the appellant challenges the manner in which the trial court dealt with the 4th respondent’s defence of limitation. It contends that the 4th respondent neither filed witness statements, participated in the hearing, nor filed submissions, yet the trial court entertained and determined the limitation issue in its favour. The appellant contends that no formal preliminary objection was raised, and no statutory basis for the limitation plea was specified. In its view, the learned judge improperly assumed an active role in advancing that defence, thereby prejudicing the appellant. 1. Building on that complaint, the appellant submits that a trial judge is required to remain impartial and not descend into the arena of litigation. It relies on ***Lambert Houreau v R [1957] EA 575***, where the Court of Appeal for Eastern Africa adopted the reasoning in ***Jones v National Coal Board [1957] 2 All ER 155***, for the principle that although a judge may intervene to clarify issues, they must not assume the role of an advocate, or appear to favour one side. The appellant asserts that by raising and determining an unprosecuted limitation issue, the trial court departed from this principle and compromised the fairness of the proceedings. 2. The appellant further contends that the trial court failed to properly evaluate the evidence and wrongly absolved the 2nd and 3rd respondents despite the absence of any meaningful rebuttal from them. It maintains that its claim was directed against all the respondents jointly and severally, including the 2nd and 3rd respondents in their individual capacities. While the 2nd respondent testified, he did so only on his own behalf, and the 3rd respondent neither filed a witness statement nor testified. The appellant also contends that its documentary evidence, including the letter dated 11th December 2012 requesting urgent mobilization, its response setting out pricing, and the Treasury’s approval dated 14th December 2012, established authorization and acceptance of the services and ought not to have been disregarded. 1. On that basis, the appellant challenges the finding on liability, contending that the trial court erred in holding that there was insufficient material to implicate the 2nd and 3rd respondents. It contends that the evidence demonstrated that the 2nd respondent convened and participated in the meeting that led to the agreement, and that both the 2nd and 3rd respondents approved and facilitated the advertising bookings that enabled the campaign. According to the appellant, these actions were central to the execution of the services and established their responsibility. 2. The appellant further relies on ***Brite Print (K) Ltd v Attorney***  ***General [2001] eKLR*** for the argument that the Government is bound by contracts entered into through its agents, even where internal procedures may not have been strictly complied with. It invokes this authority for the proposition that a party dealing with government officials is entitled to assume regularity, and that the State cannot avoid liability after receiving and benefiting from services procured through its officers acting within their apparent authority. 1. Turning to the existence of a contract, the appellant asserts that the trial court erred in concluding that no binding agreement existed. It contends that the correspondence of 11th and 14th December 2012, together with the advertising booking sheets and the parties’ conduct constituted clear offer and acceptance, thereby forming a valid contract, whether express or implied. It maintains that the respondents cannot rely on the absence of a formally executed written contract when they initiated, approved, and benefited from the transaction, and that any procedural omissions in procurement documentation were attributable to the respondents rather than the appellant. 2. The appellant also challenges the trial court’s interpretation of the Public Procurement and Disposal Act. It contends that although the court acknowledged the existence of an urgent voter registration crisis, it nonetheless concluded that the circumstances did not justify direct procurement. The appellant relies on the 2nd respondent’s letter of 11th December 2012, which highlighted that only seven days remained and sought substantial funding for urgent mobilization to demonstrate that the situation satisfied the statutory threshold for direct procurement under section 74, where urgency renders alternative procurement methods impractical. 3. Flowing from this, the appellant invokes public interest considerations, contending that the campaign was undertaken to advance the constitutional right to political participation under Article 38. It asserts that its intervention led to the registration of approximately five million additional voters within a short period, and argues that denying payment for services rendered in pursuit of such a constitutional objective would occasion economic injustice and undermine confidence in public contracting. 4. The appellant further contests the award of costs to the respondents. It submits that the trial court, having found that the respondents acted improperly in procuring and consuming the services, nonetheless awarded them costs, thereby exercising its discretion injudiciously. The appellant contends that the respondents initiated the transaction, benefited from the services, and then declined to pay, thereby making the award of costs both punitive and unjust. 5. In conclusion, the appellant invokes Articles 10 and 43 of the Constitution contending that state organs are bound by principles of fairness, accountability, and good governance, and that refusal to pay for services rendered undermines those values as well as its right to earn a livelihood. It maintains that public policy favours compensation where services have been lawfully requested and delivered for public benefit, and, accordingly, urges this Court to allow the appeal, set aside the judgment of the trial court, and enter judgment in its favour. 6. On their part, the 1st to 3rd respondents started by addressing the issue of jurisdiction of this Court relating to appeals from a trial court. They cited ***Ephantus Mwangi v Duncan Mwangi*** ***Wambugu [1984] eKLR*** for the argument that an appellate court will not interfere with findings of fact unless they are based on no evidence, a misapprehension of the evidence, or wrong principles. They further relied on ***Mercy Kirito Mutegi v***  ***Beatrice Nkatha Nyaga & 2 others [2013] eKLR*** for the proposition that this Court is primarily concerned with points of law and will only revisit factual conclusions where they are plainly unsupported by the evidence, thereby elevating the issue into one of law. 1. On the question of burden of proof, the 1st to 3rd respondents invoke sections 107 and 108 of the Evidence Act, arguing that the appellant had a legal obligation to prove its claim. They also rely on ***Hahn v Singh [1985] eKLR*** to emphasize that special damages must not only be specifically pleaded but must also be strictly proved, and cannot be inferred from the circumstances. In their view, the appellant failed to meet this evidentiary threshold in respect of the claimed sum of Kshs. 182,000,000/=. 2. Turning to the issue of the existence of a contract, the 1st to 3rd respondents contend that the entire claim was anchored on an alleged contract which they assert was never produced in evidence. They rely on ***University of Nairobi v Devcon Group*** ***Limited [2016] eKLR*** where this Court held thus: ***“We agree with learned counsel for the appellant that the learned judge was clearly wrong in entering judgment for the respondent where the course of action was based on a contract, which contract was not produced in evidence at all. The respondent had a responsibility to produce the contract in proof of the same and, absent the contract, judgment could not be entered at all, as there was no proof of the contract and it followed that allegations of breach of the alleged contract could not be proved at all.”*** 1. They further contend that even if a contract existed, it would in any event be illegal and unenforceable for non-compliance with The Public Procurement & Disposal Act, 2005 and the then applicable Public Procurement & Disposal Regulations, 2006. They submit that the IEBC, as a public body, was bound by the Public Procurement and Disposal Act and the applicable regulations, and that any procurement had to follow statutory procedures. They assert that the appellant did not demonstrate compliance with those procedures and that the alleged arrangement fell outside the legal procurement framework. 2. In this regard, they rely on the decision of this Court in ***Muvanya*** ***v Jubilee Insurance Company Limited [2022] KECA 146*** ***(KLR)***, where the Court underscored that a procuring entity, being a government agency, must comply with statutory procurement requirements, including invitation to tender under section 74 and advertisement under section 9 of the Act. The Court further held that the procurement framework does not contemplate informal or collateral roles outside the statutory scheme, such as the involvement of an insurance agent in a manner not contemplated by law. Drawing from that reasoning, the 1st to 3rd respondents contend that the appellant’s alleged engagement falls outside the statutory procurement structure and is therefore unlawful and unenforceable. 1. They further rely on ***Heptulla v Noormohamed [1984] eKLR***, a decision cited in ***Muvanya v Jubilee Insurance Company*** ***Limited*** *(supra)*, where this Court, adopting the reasoning of Lord Morris in ***Mistry Amar Singh v Kulubya [1963] EA 408*,** affirmed the principle encapsulated in the maxim *ex turpi causa non oritur actio*, namely that a court will not enforce a contract founded on illegality. They also cite ***Festus Ogada v Hans*** ***Mollin [2009] eKLR***, which in turn relied on the English decision in ***Scott v Brown, Doering, McNab & Co. [1892] QB*** ***724***, for the principle that courts will decline to assist a claimant whose cause of action is founded on illegality, regardless of whether illegality has been expressly pleaded. 1. In conclusion, the 1st to 3rd respondents maintain that the appellant failed to prove the existence of a written or valid contract, failed to demonstrate compliance with the law governing such a contract, and failed to strictly prove the alleged special damages. They reiterate that the alleged contract was shown to be illegal and irregular, and therefore unenforceable. On that basis, they contend that the memorandum of appeal does not successfully impugn the trial court’s judgment, and they urge this Court to dismiss the appeal with costs. 2. The 4th respondent vide written submissions dated 12th November 2025 contends that the appeal against it is devoid of merit. It supports the trial court’s finding that the claim against it was statute barred under the Public Authorities Limitation Act, Cap 39. It points out that section 3(2) of that Act prescribes a limitation period of three years for actions founded on contract against the Government or public authorities. Relying on the factual findings of the trial court, the 4th respondent submits that the cause of action accrued, at the latest, on or about 19th November 2013 when the appellant demanded payment, and therefore any suit against it ought to have been filed by 20th November 2016. However, the 4th respondent was only joined to the proceedings on 20th February 2017 through an amended plaint, well outside the statutory period. On that basis, the 4th respondent contends that the trial court was right in holding that the cause of action against the 4th respondent was statute barred. 1. Turning to the merits of the appeal, the 4th respondent reiterates that no contractual relationship existed between it and the appellant. It emphasizes that it was neither a party to nor privy to any alleged agreement between the appellant and the IEBC. It relies on the trial court’s evaluation of the evidence, particularly the admission by the appellant’s own witness that no written contract was ever executed between the parties. In that regard, the 4th respondent expressly invokes section 3(1) of the Law of Contract Act, Cap 23 Laws of Kenya, which provides that no suit may be brought to charge a party upon a promise unless the agreement, or a memorandum thereof, is in writing and signed by the party to be charged. On this basis, it contends that the appellant’s claim lacked a valid contractual foundation as against it. 1. The 4th respondent further submits that there was no agency relationship between it and the IEBC that could give rise to liability. It contends that absent any proof of a principal-agent relationship, the appellant cannot extend liability to it on the basis of acts allegedly undertaken by the IEBC. Consequently, it maintains that there is no legal basis upon which any contractual rights could accrue in favour of the appellant as against the 4th respondent. It therefore urges this Court to find that the appeal against it is legally untenable and dismiss it with costs. 2. This being a first appeal, it is well settled that this Court is not bound to accept the findings of fact made by the trial court. A first appeal proceeds by way of a rehearing, and the duty of this Court is to reconsider the evidence on record, evaluate it independently, and draw its own conclusions. In doing so, however, the Court must bear in mind that it neither saw nor heard the witnesses testify and must therefore make due allowance for that limitation. See **Selle and Another v** **Associated Motor Boat Company Limited and others [1968]** **EA 123** and **Williamson Diamonds Ltd. V. Brown [1970] EA 1**. 1. We have carefully considered the record of appeal, the impugned judgment, the grounds advanced in the memorandum of appeal, the submissions of the parties, and the applicable law. In our view, this appeal turns on several issues, namely, whether the appellant established the existence of a valid and enforceable contract between itself and the IEBC or any of the respondents; whether the procurement of the impugned services complied with the Public Procurement and Disposal Act, 2005 and, if not, the legal effect of such non-compliance; whether, in the absence of a valid contract or in the event of illegality, the appellant is nonetheless entitled to any restitutionary remedies, including quantum meruit; whether the trial court erred in holding that the claim against the 4th respondent was statute-barred; whether any liability attaches to the 2nd and 3rd respondents in their personal capacities; and finally, whether the trial court properly exercised its discretion on costs. 2. On the first issue, the appellant’s case rests on the assertion that an agreement was reached in December 2012 pursuant to which it undertook a nationwide voter mobilization campaign at the request of Mr. Hassan acting both in his personal capacity and as the chairperson of the IEBC, and in consultation with Mr. Oswago. The appellant relies on oral engagements, subsequent conduct of the parties, and documentary materials such as booking sheets bearing the IEBC’s stamp. The trial court accepted that services were indeed rendered but found that no valid contract had been established. The question for our determination, therefore, is whether, on the evidence on record, a binding and enforceable contract can be said to have arisen. 3. It is not in dispute, and was indeed conceded in evidence by Mr. Waruru, that no formal written contract was executed between the parties. While contracts may, in appropriate circumstances, and in the absence of express statutory exclusion, be inferred from conduct, the burden lay on the appellant to demonstrate, with clarity, the existence of agreed terms binding the IEBC. The documentary material relied upon, including the advertising booking sheets, does not, in our view, rise to the level of a concluded agreement setting out the essential terms of the alleged contract. As this Court emphasized in ***University of***  ***Nairobi v Devcon Group Limited*** *(supra)*, where a claim is founded on a contract, the existence and terms of that contract must be proved, failing which no enforceable obligation can arise. In the absence of a written agreement and clear proof of mutually binding obligations, we are not satisfied that the appellant established the existence of a valid and enforceable contract. 1. Although it is not in dispute that some form of arrangement arose between the parties, pursuant to which some services were rendered by the appellant, the enforceability of such arrangement must be considered against the statutory framework governing procurement by public entities. The IEBC, being a constitutional commission, was subject to the Public Procurement and Disposal Act, 2005 (now repealed), which establishes a mandatory regime regulating the acquisition of goods and services by public bodies, and this was well known or ought to have been known by the appellant. 2. Sections 74 and 75 of the Public Procurement and Disposal Act, 2005, as read together with Regulations 62 and 58 of the Public Procurement and Disposal Regulations, 2006, prescribe the limited circumstances under which direct procurement may be undertaken, and impose strict procedural safeguards. These include the requirement to record and justify the use of direct procurement, to conduct negotiations through at least two duly appointed officers of the procuring entity, to prepare a formal negotiation report, and to reduce the resulting agreement into a written contract signed by both parties. 3. Of equal significance is section 27 of the Public Procurement and Disposal Act, 2005, which imposes a shared statutory obligation of compliance. While the primary duty rests on the procuring entity and its accounting officer, the statute expressly extends that obligation to contractors, suppliers, and consultants dealing with public entities. The legal framework, therefore, contemplates mutual accountability, and a contracting party cannot avoid responsibility by characterizing compliance as an internal matter of the procuring entity. 4. In that context, compliance with the relevant provisions of the Public Procurement and Disposal Act, 2005 is not a mere procedural formality but a substantive requirement that goes to the validity of the transaction itself. A contractor dealing with a public entity is expected to be aware of, and to adhere to, the governing statutory framework, and cannot properly rely on an arrangement that is patently inconsistent with those requirements. 5. In the present case, the evidence supports the trial court’s finding that the statutory requirements were not complied with. The only meeting relied upon by the appellant involved a single representative of the IEBC and did not satisfy the requirement for negotiations under the applicable regulations. No written contract was executed as required by section 75(c) of the Public Procurement and Disposal Act, 2005. The advertising booking sheets, though bearing the IEBC’s stamp, cannot, in the circumstances, be regarded as a contract within the meaning of the statute. 6. It follows, therefore, that even if the appellant rendered the services, as was found by the trial court, those services were procured in a manner that contravened mandatory statutory provisions. Such non-compliance renders the alleged arrangement unlawful and unenforceable, and the court cannot, in the circumstances, lend its aid to its enforcement. 1. Turning to the question whether the appellant can nonetheless recover on the basis of equitable doctrines, we are of the view that the doctrine of illegality presents a fundamental obstacle to such recovery. The maxim *ex turpi causa non oritur actio* dictates that a court will not enforce a claim founded on an illegal act. In ***Heptulla v Noormohamed*** *(supra)*, this Court, adopting the reasoning in ***Mistry Amar Singh v Kulubya [1963] EA 408***, held that no court ought to enforce an illegal contract where the illegality is brought to its attention and the claimant is implicated in it. In that case, the Privy Council stated: ***“This old and well- known legal maxim is founded in good sense, and expresses a clear and well recognised legal principle, which is not confined to indictable offences. No court ought to enforce an illegal contract or allow itself to be made the instrument of enforcing obligations alleged to arise out of a contract or transaction which is illegal, if the illegality is duly brought to the attention of the court, and if the person invoking the aid of the court is himself implicated in the illegality. It matters not whether the defendant has pleaded the illegality or whether he has not. If the evidence adduced by the plaintiff proves the illegality*** ***the court ought not to assist him. Any rights which he may have irrespective of his illegal contract will, of course, be recognised and enforced. If a plaintiff cannot maintain his cause of action without showing, as part of such cause of action, that he has been guilty of illegality, then the courts will not assist him in his cause of action.”*** 1. The rationale underlying this doctrine is grounded in public policy. As was stated in the English decision of ***Scott v Brown,*** ***Doering, McNab & Co***. *(supra)*, no court ought to lend its aid to a man who founds his cause of action upon an immoral or illegal act. This position has been adopted in our jurisdiction, including, in ***Festus Ogada v Hans Mollin*** *(supra)*, where this Court held that where a party seeks to found a claim on a transaction tainted with illegality in which that party is implicated, the court will decline to grant relief on grounds of public policy. 1. We are alive to the appellant’s argument that it rendered valuable services which benefited the IEBC and, by extension, the public. However, there exists a countervailing public interest in upholding the integrity of the procurement framework. To permit recovery in circumstances where statutory requirements have been disregarded would, in our view, undermine the very purpose of the law and encourage its circumvention. In those circumstances, the fact that a benefit may have been conferred on a public entity cannot, of itself, justify the grant of relief. 1. More specifically, as regards the appellant’s reliance on quantum meruit, while the doctrine may, in appropriate cases, allow recovery for services rendered in the absence of a formal contract, we are satisfied that it cannot be invoked to defeat or circumvent express statutory prohibitions. The position in law is that where a transaction is rendered illegal by statute, the court will not lend its aid to its enforcement, however meritorious the claim may appear. In ***Patel v Singh [1987] KECA 21 (KLR*)**, this Court held that a contract made in contravention of section 3(1) of the Exchange Control Act was illegal and therefore unenforceable, and emphasized that a party cannot obtain relief where, in order to establish the claim, he must rely on his own illegal act. 2. In the present case, the appellant’s claim is founded on a transaction that was undertaken in disregard of the mandatory provisions of the Public Procurement and Disposal Act, 2005. We reiterate that as a commercial entity dealing with a public body, the appellant knew, or at the very least ought to have known, that such engagement required strict compliance with the statutory framework governing public procurement. In those circumstances, it cannot be heard to invoke any equitable and/or restitutionary remedies to escape the consequences of that non-compliance. We therefore find no basis for disagreeing with the trial court’s finding on this issue. 1. Turning to the claim against the 4th respondent, the central question is whether the trial court erred in entertaining and determining the issue of limitation in the absence of a formal preliminary objection or active prosecution of that defence by the 4th respondent. Section 3(2) of the Public Authorities Limitation Act, Cap 39, provides in mandatory terms that no proceedings founded on contract shall be brought against the Government after the expiry of three years from the date the cause of action accrued. Under section 2(2)(a), proceedings against the Government includes proceedings against the Attorney-General or any Government department or any public officer as such. A perusal of the evidence on record reveals that the cause of action accrued, at the latest, in November 2013 when payment was formally demanded. The 4th respondent was only joined to the proceedings through the further amended plaint filed on 10th February 2017, well outside the prescribed statutory period. 1. In our view, the effect of section 3(2) is not merely procedural. It is a substantive statutory bar that extinguishes the right to bring an action against the Government after the lapse of the prescribed period. Once time has run, the court is divested of jurisdiction to entertain the claim. 2. It follows, therefore, that the issue of limitation, particularly under a statute such as the Public Authorities Limitation Act, is one that goes to jurisdiction, and may properly be taken up by the court even in the absence of a formal preliminary objection. A court cannot confer jurisdiction upon itself where none exists, nor can it ignore an express statutory bar merely because it has not been forcefully urged by a party. Therefore, we are of the view that where the material on record discloses that a claim is statute-barred, the court is entitled, indeed obliged, to give effect to the law. 3. In that context, we are not persuaded by the appellant’s contention that the learned judge descended into the arena of litigation. The trial court did no more than apply the law to facts that were apparent on the face of the record. The defence of limitation had in any event been pleaded, and the relevant statutory framework was clear. The court’s duty was to determine whether it had jurisdiction to proceed against the 4th respondent. Having found that the claim was brought outside the statutory period, the court correctly declined to entertain it. 1. We therefore find no error in the trial court’s conclusion that the claim against the 4th respondent was statute-barred, and in its holding that the amendment to join the 4th respondent could not operate retrospectively so as to defeat the statutory protection conferred by section 3(2) of the Public Authorities Limitation Act. 2. As regards the liability of Mr. Hassan and Mr. Oswago in their personal capacities, the evidence on record does not disclose any basis upon which such liability can attach. The acts complained of were undertaken in the discharge of their official functions as officers of the IEBC, and there is no evidence of any personal undertaking, assumption of liability, or conduct outside the scope of their mandate. In the absence of proof that they acted in bad faith, unlawfully, or beyond their authority, there is no legal basis for imposing personal liability upon them. 1. Finally, on costs, the award of costs is a matter within the discretion of the trial court, to be exercised judicially. We see no reason to interfere with the exercise of that discretion. The respondents successfully defended the suit, and no exceptional circumstances have been demonstrated to warrant a departure from the general rule that costs follow the event. 2. In the end, and for the reasons we have set out hereinabove, we find no merit in this appeal. It is accordingly dismissed in its entirety with costs to the respondents. **Dated and delivered at Nairobi this 31st day of July, 2026.** **D. K. MUSINGA** **………………….………….** **JUDGE OF APPEAL JAMILA MOHAMMED** **………………………………..** **JUDGE OF APPEAL MUMBI NGUGI** **……………………………..** **JUDGE OF APPEAL** I certify that this is a true copy of the original. ***Signed*** ***DEPUTY REGISTRAR.***