[2017] KEHC 9137 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL DIVISION

HIGH COURT CIVIL CASE NO. 304 OF 2014

TRANSCEND MEDIA GROUP LIMITED.............................PLAINTIFF

VERSUS

INDEPENDENT ELECTORAL AND

BOUNDARIES COMMISSION.........................................DEFENDANT

JUDGMENT

1. The Plaintiff, Transcend Media Group limited, was at all material times carrying on the business of an advertising agency providing advertisement, marketing and media services while the Defendant is charged with, inter alia, the statutory duty of conducting or supervising referenda and elections to any elective office established by the Constitution of the republic of Kenya.

2. The Plaintiff’s claims is for:

“a) The sum of Ksh.81,704,618. 40

b) The sum of Ksh.69,083,374. 00

c) General damaged for breach of contract

d) Interest on (a)(b) & (c) above at court rates.

e) Costs of the suit

f) any other relief the court may deem fit and just to grant.

3. The Defendant denied the claim through the statement of defence filed herein dated 14th July, 2014. The Plaintiff filed a reply to the defence.

4. The Plaintiff’s Chief Executive Officer, Anthony Gatheca testified herein (PW1). The Plaintiff’s case is that it won a contract with the United Nations Development Programme (UNDP) through a competitive tendering process for the provision of services. That the plaintiff was to provide the Defendant with media services in both the electronic and print media in connection with voter education during the year 2013 general elections. That a contract was entered into between the Plaintiff and UNDP for the sum of Ksh.224,576,926/=. That the Defendant as the beneficiary of the services was charged with the responsibility of ensuring that the contract was effectively executed. That the Plaintiff performed it’s obligation under the contract and UNDP paid it in full.

5. The Plaintiff’s further evidence is that during the course of implementation of the UNDP contract, the Defendant through a letter dated 18th February, 2013 invited the Plaintiff to expand the scope of the UNDP contract to include post election peace messages and also to cover the presidential debate. That through a letter dated 19th February, 2013, the Plaintiff accepted to undertake the expanded scope of work under the UNDP rates. That the total amount of Ksh.198,797,892. 40 incurred under the contract as varied by the Defendant was not paid except for the sum of Ksh.48,720,000/= which was paid directly to the Standard Group Ltd, leaving a balance of Ksh.150,067,892/= owing. The Plaintiff further stated that the expanded scope of work was financed through loans from banks at the rate of 27% per annum.

6. The Defendant called one witness, Tabitha Ndunge Muteni (DW1), their Communications and Corporate Affairs Manager. The said witness relied on her statement dated 21st October, 2016. It is conceded that the Defendant varied the UNDP contract with the Plaintiff by expanding the Plaintiff’s scope of work. It is further conceded that the Plaintiff and the Defendant entered into a new contract based on the existing UNDP rates. It was further stated that due to the urgency of the matter, other procurement methods were not practical. It was also conceded that the Defendant paid the Standard Group Ltd directly but the other media houses were not paid.

7. The Plaintiff’s counsel submitted that there existed an enforceable contract between the Plaintiff and the Defendant, that the Defendant is in breach of the contract and that the Defendant ought to pay the Plaintiff the sum of Ksh.150,067,892. 40 plus costs and interest at commercial rates of 27 per annum with effect from March, 2013 till payment in full. The Plaintiff dropped it’s claim for payment of damages for breach of contract.

8. On the other hand, the Defendant’s counsel in their submissions conceded to the Plaintiff’s claim save for the claim in respect of the interest rates applicable and the date from which the interest rates should accrue. According to the Defendant, the interest ought to be at court rates from the date of filing suit.

9. In the plaint, the Plaintiff pleaded for interest rate at court rates. Their evidence that the interest ought to be at the commercial rate of 27% per annum is not anchored in their pleadings.

10. The Defendant has conceded to the Plaintiff’s claim through the evidence of DW1 and through their written submissions as analyzed above. Consequently, the Plaintiff’s case is allowed in the aforestated terms.

11. Judgment is hereby entered in favour of the Plaintiff against the Defendant for the sum of Ksh.150,067,892/= with interest at court rates from the date of filing suit until payment in full plus costs of the suit.

Date, signed and delivered at Nairobi this 20th day of July, 2017

B. THURANIRA JADEN

JUDGE