https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/729

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE’S COURT AT BUNGOMA** **CIVI SUIT NO. E546 OF 2024** **STERY COMPANY LIMITED……………….………………………...…………………………..PLAINTIFF** **VERSUS** **THE BOARD OF MANAGEMENT BUKEMBE HIGH SCHOOL & ANOTHER……………………………...……………………………………DEFENDANT** **JUDGMENT** 1. The Plaintiff moved this court through a Plaint dated 23rd January 2025 praying for judgment against the Defendant for: 2. *Payment of Kshs. 1,075,000/=* 3. *Costs* 4. *Interest to run from 31st January 2023* 5. *Any other relief this Honourable Court may deem just and fit to grant* 6. The Plaintiff pleaded that the cause of action herein arose from a contract between him and the Defendant for the supply of students’ deckers and lockers valued at Kshs. 1,075,000/= which he supplied between 31st January 2023 and 06th February 2023. 7. The Defendant reportedly failed to pay the Plaintiff the contractual sum of Kshs. 1,075,000/=, prompting the Plaintiff to file this suit. 8. The Defendant entered appearance and filed a Statement of Defence dated 19th September 2025 putting the Plaintiff to strict proof of the averments in his Plaint. The Defendant pleaded in the alternative that if there was any contract for the supply of students’ lockers and chairs as pleaded by the Plaintiff, then the same was between the Plaintiff and unknown people or people unauthorized by the Defendant. 9. The Defendant further pleaded that no procurement or tender process leading to the alleged supply of deckers and lockers was undertaken, and that if there was one, then the same was marred by fraud, irregularities, and was in contravention of the law; thus, the Plaintiff could not seek to benefit from the same. 10. The Defendant denied owing the Plaintiff any money. In the circumstances, the Defendant urged this court to dismiss this suit with costs. 11. Given the foregoing, this matter was set down for hearing for the parties herein to prove the averments in their respective pleadings on a balance of probabilities. **Plaintiff’s Case** 1. **PW1 Livingstone Kutindi Odwodi** adopted his witness statement dated 23rd January 2025 as well as his further statement dated 17th February 2026 as his evidence in chief. His testimony was largely a rendition of the averments in his Plaint. He added that the Defendant paid him Kshs. 400,000/= during the pendency of this suit in partial settlement of the claimed sum of Kshs. 1,075,000/=. He also produced all the documents he had filed in support of his case as exhibits. 2. He admitted in cross-examination that he was aware of the procurement processes when dealing with public entities including the Defendant. He conceded that he had not produced the tender advert/notice, a letter of award of a tender, and his letter of acceptance of a tender in respect of the tenders herein. He maintained that the Defendant directly issued him with the LPO dated 12th December 2022 for the supply of 100 lockers and chairs, as well as 50 double deckers to the Defendant. **Defendant’s Case** 1. **DW1 Juma Ndalila Joseph** is the Defendant’s bursar. He adopted his undated witness statement on record as his evidence in chief. 2. His testimony was that the school was not owing the Plaintiff the sum claimed for the supply of the lockers, chairs, and double deckers. He added that any enforceable debt between the Plaintiff and the Defendant was to be settled progressively quarterly, subject to availability of funds. 3. He further stated that had paid the Plaintiff Kshs. 845,000/= between 29th May 2023 and 01st April 2025 in settlement of the contractual sum of Kshs. 1,075,000/=. He thus maintained that the Defendant owed the Plaintiff Kshs. 230,000/= as at 01st April 2025. 4. He produced all the documents filed by the Defendant as exhibits. 5. In cross-examination, he admitted that the LPO dated 12th December 2022 for the supply of the lockers, chairs, and double deckers was issued by the Defendant to the Plaintiff after the tendering process. He confirmed that the Plaintiff supplied to the Defendant the lockers, chairs, and double deckers set out in the LPO dated 12th December 2022. 6. He added in re-examination that the tendering process was not complied with in awarding the Plaintiff the tender for the supply of the lockers, chairs, and double deckers. **ANALYSIS AND DETERMINATION** 1. The parties’ pleadings, witness statements, documents, written submissions and the authorities relied upon by the respective parties have been duly considered by this court. 2. The Plaintiff filed written submissions which were largely a reiteration of the Plaintiff’s pleadings and evidence on record. The Defendant’s counsel, on his part, filed written submissions which were almost a carbon copy of the judgment in **Board of Management, Friends School Kaimosi Girls v Alicia Bakers and Confectioners Limited (Small Claims Appeal E064 of 2025) [2026] KEHC 1013 (KLR)**. The crux of the Defendant’s written submissions was that the Plaintiff’s suit could not be sustained given that the contract in question did not comply with the provisions of the Public Procurement and Asset Disposal Act (PPADA). 3. This court is of the considered view that the issues for determination are: 4. *Whether there exists a valid and enforceable contract between the Plaintiff and the Defendant* 5. *If the answer to question (a) above is in the affirmative,* *what is the amount of money owed to the Plaintiff by the Defendant* ***Whether there exists a valid and enforceable contract between the Plaintiff and the Defendant*** 1. The Plaintiff maintained that there existed a valid and enforceable contract valued at Kshs. 1,075,000/= between him and the Defendant for the supply of 100 lockers and chairs, as well as 50 double deckers to the Defendant, evidenced by the LPO dated 12th December 2022 as well as the invoices, and the delivery notes on record. 2. Whereas the Defendant admitted receiving 100 lockers and chairs, as well as 50 double deckers from the Defendant and making part payment for the same, they urged this court to dismiss the Plaintiff’s case on the basis that the tendering process giving rise to the suit herein was in contravention of the PPADA. 3. There is no dispute that the Defendant/school is a public entity. Supply of goods and services to a public body/entity is governed by Article 227(1) of the Constitution, which obligates state organs and public entities to procure goods and services through a system that is fair, equitable, transparent, competitive, and cost-effective. 4. The above constitutional imperative finds a statutory backing under the PPADA. To buttress this position, this court draws inspiration from the holding in **Noa Investment Limited v County Government of Nyamira [2021] eKLR** and **Royal Media Services v Independent Electoral & Boundaries Commission & 3 others [2019] eKLR**. 5. Further, the PPADA obligates the supplier/contractor and the contracting entity with a corresponding duty of ensuring compliance with the said Act as held in the **Royal Media Services case (supra),** where the court, while considering the repealed Public Procurement and Assets Disposal Act, 2005, rendered itself thus:- *“45. .......It is the duty of the Contractor as it is of the procuring entity to observe the provisions of Statute and the Regulations thereunder. 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 s[he] has not done enough to enquire about compliance or s[he] is herself or himself guilty of infringement. (Emphasis added).* 1. Similarly, in **Pakater Investment Company Limited Vs Municipal Council of Malindi** **[2016] eKLR**, the court stated as follows regarding the supplier’s duty under the Act: - *“I do agree with the findings of the trial court that the proper procedure to procure the goods was not followed. Although it is not the work of a supplier to find out the internal workings of a pubic organization or a company as established in the Turquand’s case, at least the ordinary processes have to be followed. A supplier cannot expect to receive a phone call from an assistant supply officer to supply goods and jump into the process of supplying. One has to be pre-qualified...* *The appellant cannot hide in the contention that it was not its duty to find out whether the process was followed. There is the basic business procedures which call for minimum due diligence....”(Emphasis added)* 1. It is given that courts do not enforce contracts which are in contravention of statutes. This Court draws inspiration from **D. Njogu & Company Advocates vs. National Bank of Kenya Limited (2016) eKLR,** where the Court of Appeal stated as follows: - *“23.Likewise we reiterate that any contract that contravenes a statute is illegal and the same is void ab initio and is therefore unenforceable….illegal at formation.. ab initio…”* 1. The foregoing leaves no doubt in this court’s mind that if the contract giving rise to this suit was in contravention of the PPADA and if either party never complied with the provisions of the PPADA, then the same is null and void *ab nitio.* 2. Be that as it may, parties are bound by their pleadings. A court cannot travel beyond the parties’ pleadings and come up with ‘Any Other Business ’, so to speak, for determination. 3. Turning to the Defendant’s Statement of Defence, this court notes that the Defendant simply pleaded that if there was a contract for the supply of the lockers, chairs, and double deckers between the parties herein, then the same was marred by irregularities, fraud, and in contravention of the law. 4. Order 2 Rule 4(1) of the Civil Procedure Rules provides as hereunder: - *“4. Matters which must be specifically pleaded* *(1)A party shall in any pleading subsequent to a plaint plead specifically any matter, for example performance, release, payment, fraud, inevitable accident, act of God, any relevant Statute of limitation or any fact showing illegality—* *(a)which he alleges makes any claim or defence of the opposite party not maintainable;* *(b)which, if not specifically pleaded, might take the opposite party by surprise; or (c) which raises issues of fact not arising out of the preceding pleading.* 1. This court’s reading of the above provisions of the law is that a party must plead in any pleading subsequent to a Plaint the particulars of fraud, irregularities or illegalities they seek to rely on. 2. The Defendant in this case did not plead the particulars of fraud, irregularities, illegalities, or the specific statute contravened in respect of this case. The consequence of a party not pleading a particular issue and thereafter purporting to lead evidence on an unpleaded issue was well explained by Magare J in **Muthusi v NIC Bank Limited (Civil Appeal E086 of 2022) [2024] KEHC 17085 (KLR)**. This court reproduces the learned judge’s observations in *extensio* for the Defendant’s benefit: *“35.Parties must plead first before they prove. In other words, Pleadings must be followed by evidence and not the other way round. Evidence that is not supported by pleadings is otiose and is of no use to the parties and the court. In the case of Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] eKLR, A C Mrima stated as follows: -* *“11.It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must be in consonance with the pleadings. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded. That settled position was re-affirmed by the Court of Appeal in the case of Independent Electoral and Boundaries Commission & Ano. vs. Stephen Mutinda Mule & 3 others (2014) eKLR which cited with approval the decision of the Supreme Court of Nigeria in Adetoun Oladeji (NIG) vs. Nigeria Breweries PLC SC 91/2002 where Adereji, JSC expressed himself thus on the importance and place of pleadings: -* *“…..it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded………In fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation…”* 1. Guided by the authority above, it follows that the Defendant, having not specifically pleaded in their Statement of Defence that the contract herein was in contravention of the PPADA, could not purport to lead evidence or submit that the contract herein was unenforceable for contravention of the PPADA. 2. Submissions are not evidence. This legal position was restated in **Miguna v Kipchumba (Civil Suit E174 of 2024) [2026] KEHC 1035 (KLR) (Civ)** thus: *“23.It is trite that each party is bound by his pleadings and that submissions do not constitute evidence. Hence a party cannot be heard to raise new issues or arguments by way of his or her submissions. This position was succinctly stated by the Court of Appeal in the case of Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another [2014] eKLR when it held that: “Submissions cannot take the place of evidence…Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all.”* 1. Holding otherwise would prejudice the Plaintiff, who was neither given proper nor sufficient notice by the Defendant through their Statement of Defence that they would be relying on the provisions of PPADA to defend the Plaintiff’s suit. 2. It is for the reasons above that this court declines to entertain the Defendant’s claim that the contract giving rise to this case contravened the PPADA. 3. In any event, the Defendant’s witness (DW1) conceded that the LPO dated 12th December 2022 for the supply of the lockers, chairs, and double deckers was issued by the Defendant to the Plaintiff after the tendering process. DW1’s witness statement on record, which he adopted as his evidence in chief, did not raise any issues about the alleged contravention of the PPADA in the procurement process herein. DW1 even admitted that all payments he had made to the Plaintiff under the impugned contract were legal payments. 4. The upshot of the foregoing is that there exists a valid and enforceable contract between the Plaintiff and the Defendant for the supply of lockers, chairs, and double deckers set out in the LPO dated 12th December 2022. ***What is the amount of money owed to the Plaintiff by the Defendant*** 1. The Plaintiff admitted that the Defendant had paid him Kshs. 400,000/= during the pendency of this case in partial settlement of the claimed sum of Kshs. 1,075,000/=. Therefore, he sought to recover the balance of Kshs. 675,000/= from the Defendant. 2. DW1 took the position that the Defendant owed the Plaintiff Kshs. 230,000/= as at the time he was testifying. He produced several cheques and payment vouchers in support of his position that the Defendant owed the Plaintiff Kshs. 230,000/=. 3. The payment voucher dated 16th October 2023 shows that the Plaintiff was, at the time of execution of the said payment voucher, owed Kshs. 230,000/= by the Defendant for the supply of student lockers and chairs. 4. On the other hand, the payment voucher dated 24th March 2025 shows that the Defendant paid all the money due to the Plaintiff for the supply of the double deckers/beds. 5. It is imperative to note that the Plaintiff signed the two vouchers in paragraphs 40 and 41 above. The Plaintiff did not dispute signing the said vouchers when he testified before this court. 6. The evidential value of payment vouchers signed by the payee was well explained by the Court of Appeal in **Abdi Ali Dere v Firoz Hussein Tundal & 2 Others (2013) eKLR** as follows: *“In our opinion it is not correct to say, as the trial court did, that in all and sundry cases a payment voucher cannot be evidence of payment. The term “voucher” derives from the word “vouch”, meaning “to confirm or assure”. The term “voucher”, in regard to payment, has at least two distinct meanings. It can mean a written authorization to pay or disburse money. It can also mean confirmation of payment. In the latter sense, a payment voucher is not any different from a receipt. In many daily and official transactions, payees do not walk around with receipts to issue in acknowledgement of payment. They merely countersign the payment voucher to signify payment...”(Emphasis added)* 1. In the circumstances, given that the Plaintiff did not impeach the payment vouchers above, this court finds and holds that the Defendant owes the Plaintiff Kshs. 230,000/=. **DETERMINATION** 1. In sum, the following orders commend to this court: 2. *Judgment is entered against the Defendant for the sum of Kshs. 230,000/=* 3. *The sum of Kshs. 230,000/= awarded in (a) above will accrue interest at court rate from the date of filing this suit till payment in full* 4. *The Plaintiff will have the costs of this suit* 5. Judgment accordingly. **Read, signed, and delivered in open court at Bungoma, this 18th day of August 2026** **T.O. OMONO** **SENIOR RESIDENT MAGISTRATE** **In the presence of:** Ms. Nekesa h/b for Wamlawa for the Plaintiff Mr. Juma for the Defendant C/A: Mr. Rioba