https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12779

Gitimu v Trisol Engineering Ltd & another (Civil Appeal E700 of 2023) [2026] KEHC 12779 (KLR) (30 July 2026) (Judgment) Neutral citation: [2026] KEHC 12779 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Appeal E700 of 2023 JM Chigiti, J July 30, 2026 Between Samuel Irungu Gitimu Appellant and Trisol Engineering Ltd 1st Respondent Andrew Lomosi 2nd Respondent (Being an Appeal from the Judgment and Decree of the Nairobi Small Claims Court SCCOMM No. 67814 of 2022 of Hon. Caroline Ndumia delivered on 4" July, 2023) Judgment 1.The appellant is aggrieved and dissatisfied with the whole of the decision of the Small Claims Court that was delivered on 4th July 2023 in SCCCOMM E7814 of 2022. 2.That has precipitated the filing of the memorandum of appeal forms the subject of this judgment. The Appellant’s Case: 3.He challenges the whole of the said decision on the following grounds: 4.The Learned Magistrate erred in law in holding that the Appellant could not claim for professional services rendered pursuant to a verbal agreement with the Respondent, for want of a written contract between the parties; 5.The Learned Magistrate erred in law by placing sole reliance on the letter dated 2nd August 2022 that required written contracts for persons engaging professional engineers and excluding the verbal agreement between the Appellant and the 1st Respondent, which verbal agreement for the rendering of the professional services had preceded and pre-dated the issuance of the said letter. 6.The Learned Magistrate erred in law by deciding against the weight of evidence, conduct, the parties' communications and representations that confirmed the existence of the agreement of the contract for the rendering of the professional services; 7.The Learned Magistrate erred in law by applying the Engineers Rules 2022 (Scale of Fees) retrospectively to cover the verbal agreement between the Appellant and Respondent which had been concluded before the said rules came into force. 8.He is seeking for orders that: -a.The Appeal be allowed;b.The Judgement and Decree of Honourable Caroline Ndumia dated 4th July 2023 be set aside;c.The Appellants claim as contained in the Statement of Claim dated 9th December 2022 be allowed;d.Cost of this Appeal will be awarded to the Appellant. 9.According to the appellant, it is common ground that parties entered into a verbal agreement. What is in contention is whether the Appellant was required to enter into a written agreement with the Respondents in order for him to claim fees for professional services rendered. 10.Generally, an agreement is not required in law to be in writing (save for the exception under Section 3 of the Law of Contract Act, Cap 23 Laws of Kenya) but rather, a contract may be oral or may be inferred from the circumstances. The Law of Contract Act, does not require that the nature of contract such as the one between the Appellant and Respondent be in writing. 11.He submits that going by the conduct of the parties herein as well as the prevailing facts and several correspondences, it was clear that there was an orally binding contract. 12.He further submits that the lack of a written agreement by the Appellant did not in any way render the oral contract between the Appellant and the Respondent void. Reliance is placed in the case of Patrick Njuguna Kimondo vs. Geoffrey Vamba Mbuti (2019] eKLR while addressing the issue of oral contracts and held thus: -"I am of the opinion that oral agreements supported by credible evidence can be and are enforceable. All what the law requires is that certain contracts be in writing - Section (3)(3); Short of that, it would be a travesty of justice as most people either knowingly or otherwise transact their businesses upon oral agreements." 13.The current case Rule 23(4) of the Engineers (Scale of Fees for Professional Engineering Services) Rules which requires fees for services to be set out in writing, was not applicable as it only came into effect on 15th August, 2022, after the Appellant and the Respondent had already entered into a verbal/oral agreement back in 15th June, 2022. 14.He submits that in the current case Rule 23(4) of the Engineers (Scale of Fees for Professional Engineering Services) Rules which requires fees for services to be set out in writing, was not applicable as it only came into effect on 15th August, 2022, after the Appellant and the Respondent had already entered into a verbal/oral agreement back in 15th June, 2022. 15.The fact that the agreement between the Appellant and the Respondent was not in writing did not make it unenforceable. The Appellant can claim fees for professional services rendered pursuant to a verbal agreement with the Respondents prior to the effective date of the Engineers Rules 2022 (Scale of Fees). 16.The Learned Magistrate erred in law in holding that the Appellant Could not claim for professional services rendered pursuant to a verbal agreement with the Respondent for want of a written contract between the parties. 17.The Learned Magistrate erred in law by placing sole reliance on the letter dated 2nd August, 2022 (Rule 23(4) of Engineers Rules 2022 (Scale of Fees) that required written contracts for persons engaging professional engineers and excluded the verbal agreement between the Appellant and the 1st Respondent, which verbal agreement for the rendering of the professional services had preceded and pre-dated the issuance of the said letter. 18.The Supreme Court in the case of Samuel Kamau Macharia and Another v Kenya Commercial Bank Ltd and 2 Others, SCK Application No. 2 of 2011 [2012] eKLR where in addressing the issue of retrospective application of a statute the Court observed that; -"As for non-criminal legislation, the general rule is that all statutes other than those which are merely declaratory or which relate only to matters of procedure or evidence are prima facie prospective, and retrospective is not to be given to them unless, by express words or necessary implication, it appears that this was the intention of the legislature." 19.The Learned Magistrate erred in law by applying Rule 23(4) of the Engineers Rules 2022 (Scale of Fees) retrospectively to cover the verbal agreement between the Appellant and the Respondents which had been concluded on 15th June, 2022 before the said Rules came into force and or effect from 15th August, 2022. 20.He submits that the issue as to whether the Appellant was licensed to practice for the year 2022 was never pleaded, impugned or challenged by the Respondent in their Response to Statement of Claim dated 30th December, 2022. The said issue was only raised, impugned or challenged in their final written submissions as an afterthought. 21.He submits that each party is bound by his own pleadings and cannot be allowed to raise a different or fresh case without due amendment properly made. Reliance is placed in the case of Elizabeth O. Odhiambo v South Nyanza Sugar Co. Ltd [2019) eKLR, while addressing the issue of parties being bound by their pleadings stated that; -"The court, on its part, is itself bound by the pleadings of the parties. The duty of the court is to adjudicate upon the specific matters in dispute, which the parties themselves have raised by their pleadings. The court would be out of character were it to pronounce any claim or defence not made by the parties as that would be plunging into the realm of speculation and might aggrieve the parties or, at any rate, one of them. A decision given on a claim or defence not pleaded amounts to a determination made without hearing the parties and leads to denial of justice." 22.The foregoing position was also reiterated in the case of Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others Civil Appeal No 219 of 2013 [2014| eKLR. It submits that the Respondents were bound by their own pleadings and are estopped from impugning, questioning or challenging the issue of whether the Appellant was licensed to practice for the year, 2022, at the submission stage since they had an opportunity to raise or impugn the issue in their pleadings particularly in their Response to Statement of Claim, but failed to do so. 23.In addressing the issue of costs, it relied on the case of Republic vs Rosemary Wairimu Munene, Ex-Parte Applicant Vs Thururu Dairy Farmers Co-operative Society Ltd where the court held as follows. -"The issue of costs is the discretion of the court as provided under the above section. The basic rule on attribution of costs is that costs follow the even.... It is well recognized that the principle costs follow the event is not to be used to penalize the losing party; rather it is for compensating the successful party for the trouble taken in prosecuting or defending the case." The Respondents' Submissions 24.The 1st Respondent is a company which provides, among others, construction services across the country and engages various stakeholders in respect of such contracts. The 1st Respondent was contacted by Ewaso Ngiro South River Basin Development Authority (the "Client") in regard to the Relocation and Installation of Ewaso Ngiro Tannery Equipment (the "Assignment"). 25.The contract was based on documents, drawings/ design, and technical specifications for the Assignment. The 1st Respondent verbally engaged the Appellant as a Supervisor of the ongoing construction works of the Assignment, and his role solely involved supervising the ongoing works. No contract was ever signed between the parties. 26.It was further verbally agreed between the parties that payments were to be made per milestones achieved and the Appellant could only earn money upon achievement of a particular milestone. The Appellant only performed his duties during the early phase of the project but abandoned the project as works progressed and he was duly paid for the supervision works done. 27.The 1st Respondent was forced to delay the completion of the Assignment and had to engage a new Supervisor to complete the works. On 14th November 2022, the Appellant demanded from the 1st Respondent, the sum of Kshs. 925,598/-, for what he termed as "Professional fees for the design and supervision of construction and relocation and installation of Ewaso Ngiro Tannery Equipment claiming that he had been engaged in his capacity as a Civil and Structural Engineer, and that he had worked 113 hours on the Assignment. 28.He attached an Invoice dated 11th November 2022 in which he billed hourly rates as follows:a)Design ​fittings and drawings production - Kshs. 499,940, andb)Supervision - Kshs 297,990. 29.He then lodged a suit before the trial court, seeking enforcement of his claim for the above sums. The claim was dismissed on 4th July 2023, resulting in the present appeal. 30.The Appellant seeks to recover professional fees on the backdrop of claims that the 1st Respondent engaged him in his capacity as a Civil and Structural Engineer. The 1st Respondent disputes this account and states that it only engaged the Appellant to supervise the works, no more, no less. 31.Section 34 of the Engineers Act, CAP 525 Laws of Kenya ("Engineers Act"), provides that no fees to be charged by unlicensed Persons:A person shall not be entitled to recover a charge for professional engineering services unless that Person is licensed under this Act. 32.A licensed person is one who has taken out an annual practicing license, failure to which such a person is barred from engaging in practice of engineering. See section 32 of the Engineers Act:a.A person shall not engage in the practice of engineering unless that Person has been issued with a license and has complied with the requirements of this Act.b.A license issued under subsection (_1) shall be valid for one year from the 1st of January 10 the 31st December of that Particular year and may, upon be renewed. 33.The Respondents submit that the Appellant's claim was premised on his view that he was engaged in his capacity as a Civil and Structural Engineer, and he produced a certificate of registration dated 26th October 2020 as proof of such capacity to practice. The Appellant never produced a license for the year 2022, which is the material year for the said verbal agreements with the 1st Respondent. The Respondents submit that the Appellant was unlicensed and could not practice engineering without such license. Consequently, the Appellant could not charge professional fees in the capacity of a Civil and Structural Engineering. 34.It is not disputed that there was a verbal agreement between the Appellant and the 1st Respondent. What is in dispute is the scope of the work and the amounts payable. There was no written agreement, to show that the parties agreed on Kshs. 925,598/- as his fees. 35.The appellant was therefore expected to prove on a balance of probabilities the following essential elements;a.An offer.b.An acceptance.c.Any consideration.d.Any intention to create legal relations. 36.The essential components of a contract as was observed by Hams JA in Garvey v Richards {2011} YMCA 16 ought to ordinarily reflect the following principles: ‘It is a well-settled rule that an agreement is not binding as a contract unless it shows an intention by the Parties to create a legal relationship. Generally, three basic rules underpin the formation of a contract, namely, an agreement, an intention to enter into contractual relationships and consideration. For a contract to be valid and enforceable an essential term governing the relationship of the parties must be incorporated therein. The subject matter must be certain. There must be positive evidence that a contractual obligation, born out of an oral or written agreement is in existence.” 37.In the case of Attorney General v Kabuito Contractors Limited (Civil Appeal 638 of 2019) [20231 KECA 230 (KLR) (3 March 2023) (Judgment):“Undeniably, verbal contracts can be enforceable, but only if they are Provable in court, and the contract meets the requirements of contract formation outlined above. For oral contracts, the courts will first be concerned with whether an oral contract exists and then with ascertaining the terms as these are, by their very nature, not written down.” 38.The party seeking to enforce an oral agreement has the difficult task of proving the terms of the agreement as well as the existence of the verbal agreement. A written agreement is itself a proof that there was an agreement, but an oral agreement is merely a verbal communication of proposal and acceptance which is difficult to prove in future if any disputes arise. The burden of proof totally lies on the Person who is claiming the right to prove the existence of an oral agreement. The plaintiff in this matter had that burden of Proving the existence of the oral contract and the terms of the oral agreement. 39.An oral agreement must as well satisfy the requirements of a valid agreement such as offer, acceptance consideration, capacity to contract etc. (See the Supreme Court of Uganda in Patel v Spear Motors Ltd SCCA No. 4 of 1991 (1991)1KALR40). Although it may seem abundantly clear that the elements are sufficiently certain, the real problem is overcoming the burden of proof Where a person alleges the existence of an oral contract, that party has the burden of proving the assertion to the satisfaction of the court. In doing so, there will be an onus to highlight the key terms of the contract and to prove the existence of the essential elements. " 40.Section 107 (1) of the Evidence Act CAP 80 Laws of Kenya, which squarely lays the burden of proving the terms of the contract on the Appellant. In the absence of discharge of this burden, the Appellant's claim falls short of the minimum threshold for this Court to entertain it, leave alone find in his favor. 41.The Appellant seeks judgment for Kshs. 925,598/which, Kshs. 499,940/- is claimed to be for design and/or drawings. The Appellant's scope of work never included the making of any design and/or drawings. In fact, the making of designs and drawings was not even part of the Assignment given by the Client to the 1st Respondent. 42.The tender documents and the contract between the Client and the 1st Respondent Included the drawings and technical specifications, which had already been provided by the Client. It is barely fathomable how the Appellant could have been engaged to perform work which was not even part of the parent contract to begin with. In any event, the Appellant has not adduced anything before this Court to ascertain that any such terms were part of the oral agreement with the 1st Appellant. 43.The invoice that was produced by the Appellant, the Appellant claims to have worked for 113 hours. There is no proof of this and the Appellant cannot substantiate this claim. 44.The Appellant faults the trial court for referring to the Engineers (Scale of Fees for Professional Engineering Services) Rules 2022, when he himself relied on those Rules in billing the 1st Respondent. 45.In his Statement of Claim dated 9th December 2022, he states that he was "engaged by the Respondents through director Andrew Lomosi" for the design and supervision of construction works on June 15, 2022.However, in his Witness Statement dated 9th December 2022, he states that he was "contracted on July 15, 2022 by Andrew Lomosi, a director of Tristol Engineering" to provide his services as a professional engineer in the design and supervision of construction. 46.In his Demand dated December 14, 2022, he states that he was "engaged by Tristol Engineering for design and supervision on June 15, 2022.The Invoice presented by the Appellant had no reference to the nature of the works in respect of which the Client engaged the 1st Respondent, and which he was subsequently engaged to supervise that is, relocation and installation of ewaso ngiro tannery equipment. 47.The sole correspondence relied upon by the Appellant at the trial court was between him and a certain "Water Client", and who cannot be ascertained to be the Respondents. 48.The Appellant claims to have worked with a number of people in implementing the works, but deemed it fit never to call any witness to corroborate his statements and/or claims. The trial court could not ascertain the alleged terms of the oral contract as posited by the Appellant in the absence of a written agreement between the parties. 49.This Court should preserve the findings of fact by the trial court, which extensively considered the evidence on record and reached its conclusions. 50.Reliance is placed in Section 38 of the Small Claims Court Act Cap. IOA Laws of Kenya, and further espoused in Gakere v Kahiu (Civil Appeal 284 of 2023) [20241 KEI-IC 9323 (KLR) (19 July 2024) (Judgment):“It therefore follows that an appeal originating from the Small Claims Court to this court can only on the points of law in terms of Section 38(1) of the Small Claims Act. Consequently, this court cannot in such an appeal, entertain an invitation to interfere with the factual findings of the trial court. The duty of this court therefore is equivalent to that of the Court of Appeal in its capacity as a second appellate court. " 51.According to the Respondent the appellant should bear the costs. To advance this, reliance is placed in the case of Jasbir Singh Rai & 3 others v Tarlochan Singh Rai Estate 4 others [20131 eKLR. Analysis; Issues for Determination 52.From the record and submissions, the following issues arise:Whether the trial court erred in law in holding that the absence of a written loan agreement was fatal to the Appellant’s claim;Whether the Appellant discharged the burden of proof under Sections 107–109 of the Evidence Act;Whether the trial court properly applied the principles relating to oral contracts and proof thereof. 53.Jurisdiction is a threshold issue that goes to the root of a court’s authority to determine a dispute. It may be raised at any stage of the proceedings, either by the parties or by the court on its own motion. Where a court finds that it lacks jurisdiction, it must down its tools and proceed no further. The challenge raised by the Respondent that legal issue of the licence is an after thought fails. On the Requirement for a Written Agreement 54.Turning to the first point, the trial court was called upon to determine whether the absence of a written agreement was fatal to the Appellant’s claim. 55.The trial court appeared to give significant weight to the absence of a written agreement. While written agreements provide stronger evidentiary value, Kenyan law does not universally require loan contracts between private parties to be in writing unless they fall under categories prescribed by statute (e.g., land transactions under Section 3(3) of the Law of Contract Act, Cap 23). 56.Section 3(1) of the Law of Contract Act (Cap. 23) applies primarily to contracts of guarantee, not ordinary loans. The Court in Nyamai v Mbaluka & another (2023) reaffirmed that “a money-lending agreement need not be in writing for it to be enforceable. “In Basta & Sons Ltd v Compact Freight Systems Ltd (2025), the High Court emphasized that oral agreements are valid if they satisfy offer, acceptance, consideration, and capacity; but the party asserting the contract must prove it and its essential terms. 57.Oral contracts are valid under Kenyan law unless specifically excluded by statute. In Abdi Ali Dere v Firoz Hussein Tundal & 2 Others [2013] eKLR, the Court emphasized that oral contracts must be proved through consistent testimony and corroborating evidence. In Pius Kimaiyo Langat v Co-operative Bank of Kenya Ltd [2017] eKLR, the Court of Appeal reiterated that oral agreements are enforceable provided their existence and terms can be proved to the requisite standard. Thus, the absence of a written agreement is not by itself fatal but increases the evidential burden on the claimant. 58.While a written contract provides stronger proof, its absence is not automatically fatal to a claim. However, it does raise the evidentiary burden on the party asserting the agreement. The claimant must rely on alternative evidence, such as testimony, banking records, or corroborating witnesses, to prove both the existence of the contract and its essential terms. 59.The trial court’s heavy reliance on the lack of a written agreement suggests a misdirection in law. Section 107(1) of the Evidence Act places the legal burden on the party asserting the existence of a fact. Under Section 109, the evidential burden may shift once a prima facie case is established. 60.From the conduct, of the parties, the communications and representations confirm the existence of an oral contract for the rendering of the services. The invoice, the text messages demonstrate that there was an engagement between the parties. 61.On its part, the respondent in response stated that the contract between the claimant and the respondent was verbal and that the claimant was to be paid per milestones achieved and therefore the claimant could only earn money upon achievement of a particular milestone. 62.According to the Respondents the claimant only performed his duties during the early phase but abandoned the project as works progresses and he was duly paid for the supervisory works done and therefore the respondents did not owe any money to the claimant. However, there is a disputed when it comes to the nature of the said services. The terms of the engagement remain hard to ascertain with precision. The court cannot tell what the consideration was. 63.The claim is one of special damages and it was the duty of the claimant to strictly plead and prove the claim. The court’s opinion that the Claimant did not prove the same. 64.Section 34 of the Engineers Act, CAP 525 Laws of Kenya (“Engineers Act”), bars unlicensed person from charging professional fees: “34. No fees to be charged by unlicensed persons (1) A person shall not be entitled to recover a charge for professional engineering services unless that person is licensed under this Act. (2) A person who contravenes the provisions of subsection (1), commits an offence.” 65.Section 32 of the Engineers Act further stipulates:“ 32.Practicing license (1) A person shall not engage in the practice of engineering unless that person has been issued with a license and ​has complied with the requirements of this Act.(3)A license issued tender subsection (1) shall be valid for one year from the 1st of January to the 31st December of that particular year and upon expiry, be renewed.” 66.Section 30 of the Engineers Act provides proper legislative guidance;“Section 30 1.The Registrar shall cause to be published in the Kenya Gazette not later than the 31st day of March of every calendar year, particulars of all registered and validly licensed persons or firms and their categories of registration. 2.A publication made under this section shall be prima facie evidence that a person or firm named therein is registered under this Act and the deletion from the register of the name of any person or firm notified by such publication, or the absence of the name of any person or firm from such publication, shall be prima facie evidence that such person or firm is not so registered.” 67.Appellant’s claim before the court below was premised on his view that he was engaged in his capacity as a Civil and Structural Engineer, and he produced certificate of registration dated 26th October 2020 as proof of such capacity to practice. The Appellant never produced a license for the year 2022, which is the material year for the said verbal agreements with the 1st Respondent. 68.Though the court made a finding that there was an oral contract, the Appellant was unlicensed and could not practice engineering without such a license. 69.Consequently, the Appellant could not charge professional fees in the capacity of a Civil and Structural Engineering nor pursue a claim in any court and I so hold. 70.The fact that he didn’t have a practicing certificate, the same takes away the jurisdiction of the small claim’s court. Costs: 71.Halsbury’s Laws of England, 4th ed Re-Issue (2010), Vol. 10, para. 16: “The court has discretion as to whether costs are payable by one party to another, the amount of those costs, and when they are to be paid. Where costs are in the discretion of the court, a party has no right to costs unless and until the court awards them to him, and the court has an absolute and unfettered discretion to award or not award them. This discretion must be exercised judicially; it must not be exercised arbitrarily but in accordance with reason and justice” [emphasis supplied]. In Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2014] eKLR [13] it was held, to the same intent Mr. Justice (Rtd.) Kuloba thus writes in his work, Judicial Hints on Civil Procedure, 2nd ed. (Nairobi: Law Africa, 2011), p. 94: “Costs are [awarded at] the unfettered discretion of the court, subject to such conditions and limitations as may be prescribed and to the provisions of any law for the time being in force, but they must follow the event unless the court has good reason to order otherwise.” 72.The applicant shall shoulder the Costs. Determination: 73.The appeal lacks merit.Order;The appeal is dismissed with costs.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT ELDORET THIS 30TH DAY OF JULY, 2026...................................................J. CHIGITI (SC)JUDGE