Twinkle World Ltd v Nairobi Bottlers Ltd (Commercial Case 146 of 2015) [2026] KEHC 12249 (KLR) (Commercial and Tax) (17 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **COMMERCIAL AND TAX DIVISION** **COMM CASE NO. 146 OF 2015** **BETWEEN** **TWINKLE WORLD LIMITED.....................................................................PLAINTIFF** **AND** **NAIROBI BOTTLERS LIMITED ............................................................DEFENDANT** **JUDGMENT** **Introduction and Background** 1. The Plaintiff is a company in the business of production of multimedia material, including videos involving production of TV commercials, documentaries, radio advertisements and photography. It filed the present suit by way of a Plaint dated 24th March 2015 stating that on 29th April 2014, the Defendant instructed it to produce a comprehensive documentary. The Plaintiff avers that it submitted a quotation of Kshs.6,578,000.00/=, which was approved by the Defendant's agent and that the Defendant oversaw the entire production and even assigned an employee to supervise the work on-site. 2. The Plaintiff claims that it completed the work, uploaded a copy as instructed, and delivered the final materials to the Defendant and that the Defendant is now using some of the produced material. The Plaintiff claims the Defendant has refused to pay the invoiced amount and it further alleges the Defendant acted fraudulently and in bad faith because it approved the expensive quotation while knowing it only had a budget of Kshs.200,000.00/=, a fact it only revealed after the work was done. As such, the Plaintiff urges the court to declare that the Defendant breached the contract, order the Defendant to pay Kshs.6,578,000.00/= together with costs of the suit and interest on this amount. 3. The Defendant generally denies the Plaintiff's allegations stating that it never entered into any contract with the Plaintiff for the production of a comprehensive documentary, as alleged or at all. The Defendant admits a prior, separate business relationship where the Plaintiff prepared a "*Happy Video*" touching on the Defendant's business, however, it states it duly paid Kshs.40,000.00/- for that specific service, settling all obligations arising from that transaction. 4. The Defendant denies that any of its agents, servants, or employees instructed the Plaintiff to produce any documentary and it points out a contradiction in the Plaintiff's timeline, noting that the Plaintiff claims instructions were given on 29th April 2014, yet the quotation is dated 5th August 2014. The Defendant denies nominating any employee to oversee any production, as no production was taking place and no services were requested. The Defendant denies ever receiving, seeing, or being informed about the alleged completed documentary or any other material and it also denies utilizing any such material. The Defendant denies all allegations of fraud, malice, misrepresentation, and bad faith, describing them as scandalous and vexatious and it maintains that no services were rendered to it, and therefore it does not owe the Plaintiff any money. As such, the Defendant prays that the suit be dismissed with costs. 5. The matter was set down for hearing where the Plaintiff called its director, Richard Nyamwaya Nyamiobo (PW 1) who adopted his witness statements dated 24th March 2015 and 17th January 2017 as his evidence. It also called the Defendant’s former employee, Danton Otieno Gor (PW2) who relied on his witness statement dated 17th January 2017. The witnesses also produced the Plaintiff’s list and bundle of documents dated 17th January 2017 (PExhibit 1-13), the further list documents dated 11th May 2018 which were DVD footages of the documentary and the Certificate for producing electronic evidence dated 19th September 2018. On its part, the Defendant called Ampher Apidi, its events manager (DW 1) who relied on his witness statement dated 3rd April 2017 and he also produced the list and bundle of documents of the same date (DExhibit 1-7) 6. After the hearing, the parties were directed to file written submissions which were orally highlighted by the parties’ respective counsel and together with the pleadings and evidence, I will make relevant references to them in my analysis and determination below. **Analysis and Determination** 1. In this proceedings,the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of **section 107(1)** of the ***Evidence Act(Chapter 80 Laws of Kenya***. Furthermore, the evidential burden is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in **section 109 and 112** of the ***Evidence Act*** that proof of that fact shall lie on any particular person. 2. This court (Kimaru J., as he was then) in **William Kabogo Gitau v George Thuo & 2 Others [2010] KEHC 4124 (KLR)**held as follows as regards the standard of proof in civil cases: ***In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred****.”* 1. With the above principles in mind, I now proceed to determine this matter and from the parties’ submissions, I find that these are the abridged issues for determination: 1. *Whether there was a contract between the Plaintiff and the Defendant* 2. *Whether the Plaintiff rendered services to justify its claim for Kshs.6,578,000.00/-* 3. *Who should bear the costs of the suit?* **Contract between the parties** 1. As submitted by both parties, it is trite law that for a valid contract to exist, a party has to demonstrate to this court that an offer was made, there was acceptance of the said offer and consideration for performance of the said contract. It therefore has to be seen that the parties herein had an intention to create legal relations In **Garvey v Richards [2011] JMCA 16**, Harris JA of the Court of Appeal in Jamaica made the following observation when dealing with the essential components of a contract:- *“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 essential terms 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.”*** 1. Further, a contract need not be signed or be in writing for it to be binding and that a contract can be inferred from the conduct of the parties. The Court of Appeal in **Abdulkadir Shariff Abdirahim & another v Awo Shariff Mohammed T/A A. S. Mohammed Investments [2013] KECA 59 (KLR),** aptly settled this position when it stated as follows: - *“****There is no general rule of law that all agreements must be in writing. The numerous advantages of a written agreement notwithstanding, all that the law requires is that certain specific agreements must be in writing or witnessed by some written note or memorandum. Section 3(1) of the Law of Contract Act is one such provision****”.* 1. The Plaintiff submits that a valid, binding contract existed by offer, acceptance, and consideration, formed through words and conduct. That the Defendant, through DW 2 requested a quotation for the video production, “*Good Morning Meetings*” (GMM) assignment. It contends that a detailed quotation was prepared and presented, DW1 approved it and authorized the shoot to commence immediately and the Defendant does not deny the meeting or that the quotation was received. 2. The Plaintiff submits that after the meeting and DW1’s approval, the Plaintiff immediately mobilized and began shooting, the Defendant granted full access to its premises and distributors, assigned its own employee, PW2, to assist the Plaintiff’s team, and later accepted delivery of the final product. That the Plaintiff relied on the prior successful “*Happy Video*” relationship where there was no written contract and payment was done after delivery. The Plaintiff submits that a binding contract exists where objective words and conduct show intention to create legal relations, even if some terms are not finalized and in this case, the only real dispute was price since performance had begun and was facilitated by the Defendant. 3. On the consideration, the Plaintiff submits that the detailed quotation of Kshs.6,578,000.00/- reflected the significantly larger scope than “*The Happy Video*” which quotation the Defendant received and acknowledged. The Plaintiff further presents that DW1 dealt with the Plaintiff on “*The Happy Video*”, signed delivery notes, granted access, and directed the GMM shoot and it submits that DW1 was an employee with ostensible authority to bind the company. That the Defendant is estopped from denying liability for its employee’s actions as set out in the ***Turquand’s rule*** which protects the Plaintiff as a third party dealing in good faith from undisclosed internal limits. The Plaintiff avers that the Defendant never disclosed any Kshs.350,000.00/- cap before or during the shoot, that no such policy document was produced in court and that this non-disclosure was “indecorous, unscrupulous and deceptive”. The Plaintiff thus asserts that all three elements of contract of an offer, acceptance, and consideration are proved, and the parties objectively intended legal relations. 1. In response, the Defendant submits that there was no valid contract whether written, oral, or implied and submits that whether a binding contract exists depends on objective communication by words or conduct showing intention to create legal relations and agreement on essential terms and that subjective intentions are irrelevant. That courts enforce the parties’ actual intentions and do not rewrite or create contracts. The Defendant asserts that the only undisputed contract was for the “*Happy Video*”, which was fully performed and paid and after that payment, the only further contact was when the Defendant sought a re-edit of the “*Happy Video*” and inclusion of GMM content and the Plaintiff sent the quotation via email. That DW1 reviewed it but found the sum exorbitant and far above his internal approval limit of Kshs.350,000.00/- and anything above that threshold required the company’s standard procurement and tender process. 2. The Defendant avers that DW1 did not respond to the email and had no authority to accept it and that there were no subsequent engagements. That the quotation produced by the Plaintiff together with the emails show no acceptance, agreement, or intention to contract by the Defendant and there was no letter of acceptance, no email confirming acceptance, and no conduct evidencing agreement. That the evidence does not support an implied contract. 3. As such, the Defendant submits that the Plaintiff’s evidence fails to establish acceptance, consideration, or intention to be bound and that the Court should find that no contractual relationship existed for the comprehensive documentary. 1. From the evidence, PW1 testified that he met DW1 on 29th April 2024 at the Defendant’s offices where the latter informed him that he wanted the Plaintiff to produce a documentary for the Defendant which was apparently urgent. PW1 came up with a quotation and presented the same to him the following day. PW1 stated that present at the meeting was himself, PW2 and DW 1 and that after DW1 went through the quotation he instructed him to proceed. PW1 stated that he did not sign any contract for this assignment as the parties already had a working relationship from the previous "Happy Video" assignment. 2. PW1 stated that he went to the Defendant's premises to film the documentary where they worked with PW2 and access was granted by DW1. That DW1 then asked him to send an invoice which he did via email on 8th May 2014 but there was no response from DW1. PW1 stated that he finished the documentary and delivered to the Defendant by email and on 14th May 2014, DW1 advised him to upload it. That the hard copy was collected by PW2 who directed the Plaintiff on the documentary he knew what the Defendant wanted to achieve and he was the one communicating with DW1. That on 12th May 2014, DW1, in an email, had wanted the video in a certain sequence and PW 1 re-edited the video as per the instructions. PW1 stated that after DW1 received the quotation he offered to pay Kshs.200,000.00/- but the Plaintiff declined. 1. On cross-examination stated that he issued the quotation 8th May 2014 after work had begun on 30th April 2014. PW1 also admitted that other than the quotation (PExhibit 9), he did not issue an invoice for the work done and that there was no evidence that the Defendant approved the quotation. There was also no evidence that the Defendant nominated PW2 to work alongside the Plaintiff or that the final video product was ever sent to DW 1. In re-examination, PW1 asserted that the final footage was received by PW2 as per the delivery notes produced on record. 2. In his testimony, PW2 stated that he introduced DW1 to PW1 to do the "Happy Video" and that they agreed to do the latter GMM documentary. PW2 confirmed that he received the "Happy Video" and GMM documentary videos as per the delivery notes. In cross-examination, PW2 admitted that his responsibilities did not include getting into contracts on behalf of the Defendant and that DW 1 was his immediate boss at the company. He stated that he accompanied to the Plaintiffs to the shooting locations and that he was not privy to the discussions between DW1 and the Plaintiff. He stated that the "Happy Video" was a different documentary from the GMM documentary even though he could not differentiate them from the raw footages. Further, that he did not see the quotation forwarded to DW1 and he did not see any contract between the parties. 3. DW1 in his testimony admitted knowing PW 1 and that they had been introduced by PW 2 and the Plaintiff did the "Happy Video". DW 1 stated that he was happy with the output and it was uploaded on *YouTube* and that as per the Defendant's policies, projects costing Kshs.350,000/- or below can be single sourced and can be issued without documentation and anything more has to go through procurement. He stated that this policy is internal and it is up to its staff to notify outsiders. He confirmed receipt of the "*Happy Video*" but denied receiving the DVD of the subsequent documentary. He also admitted that he could not say whether PW2 received the video or not. He stated that after the *Happy Video* and payment of the same, there was no other correspondence on the same until when the Defendant wanted to improve the *Happy Video* to include the GMM assignment. He confirmed giving PW 1 the brief who later shared the quotation and once he shared the video, there was no further communication as there was no other correspondence because the quote was way above the Kshs.350,000.00/- and they did not reach out after that. DW 1 stated that the GMM meetings happened across all their distribution chains but they did not proceed with the assignment and that they never engaged any other party to do the work. DW1 maintained that PW2 fabricated communication with the Plaintiff and that this emerged after he resigned. 4. From the evidence, it is clear that the Plaintiff sent a quotation dated 8th May 2014, to DW1 for the GMM assignment. A quotation is generally an offer meaning a “.. *display of willingness to enter into a contract on specified terms, made in a way that would lead a reasonable person to understand that an acceptance, having been sought, will result in a binding contract.”* (see **Toyota Kenya Limited v Vehicle & Equipment Leasing Limited [2021] KEHC 12871 (KLR)].** It is evident that this offer was never accepted by the Defendant who made a counteroffer of Kshs.200,000.00/- that was rejected by the Plaintiff and there was silence from the Defendant’s part thereafter. Whereas the PW1 claimed DW1 verbally instructed him to proceed, this is uncorroborated by any written evidence and is vehemently denied by DW1. The Plaintiff stated that the conduct of the parties of commencing work, granting access to premises, assigning PW2 as a supervisor indicates acceptance. While conduct can imply a contract, as held by the Court of Appeal in **Ali Abdi Mohamed v Kenya Shell & Company Limited [2017] KECA 590 (KLR),** the conduct must be unequivocal and point to a concluded agreement. In this case, the conduct is not consistent with an acceptance of the quoted price. 5. DW1's testimony was clear and consistent that the quotation, which exceeded Kshs.350,000.00/-, exceeded his internal approval limit and more importantly, he did not respond to the email forwarding the quotation, which failure to respond, coupled with his testimony that he lacked authority to accept it, strongly rebuts the Plaintiff's claim of acceptance. In a commercial context, silence on a high-value quotation, especially when a party has a policy against accepting such amounts without procurement, points away from a concluded agreement. 1. I therefore find that there was an offer, but there was no unequivocal acceptance binding the parties to a contractual consideration of Kshs. 6,578,000.00/-. **Rendering of services and justification of the claim of Kshs. 6,578,000.00/-** 1. Despite the absence of a formal contract, the evidence establishes that the Plaintiff performed substantial work for the Defendant's benefit. The video footage captured the Defendant's operations, employees, and premises, the Plaintiff was granted access to the Defendant's plant and other sites, and its employees including the supervisors DW1 and PW2 appear in the footage. This is a tangible benefit conferred upon the Defendant. The Defendant, through DW1, was aware of the work being done as he provided the brief for the GMM video and corresponded with the Plaintiff regarding the quote and editing of the video. The Plaintiff presented evidence of delivery notes signed by PW2 (PExhibit 10) and while the Defendant stated that these are "fabricated" and unstamped, the fact remains that PW2, the Defendant's employee, was present throughout the project and signed for the materials. The Defendant's denial of these delivery notes is weakened by PW2's detailed testimony of his supervision, the instructions he received from DW1 and receipt of the videos themselves. 2. On whether DW1 had ostensible authority to bind the Defendant as an “apparent agent”, **Black’s Law Dictionary (9th Ed.),** at page 72 defines such an agent as *“A person who reasonably appears to have authority to act for another, regardless of whether actual authority has been conferred – also termed ostensible agent*.” (see **Total Kenya Limited v D Pasacon General Construction & Electri Cal Services [2022] KECA 593 (KLR)**]. I am in agreement with the Plaintiff that even if DW1 did not have actual authority to approve a contract of this size, he had ostensible authority to engage the Plaintiff, which authority was expressly and admittedly granted by DW 1. The Plaintiff had a prior relationship with DW1, DW1 was the head of the department, and he had the authority to issue instructions and grant access to the premises. The Court of Appeal in ***Total Kenya Limited v D Pasacon General Construction(supra)***, accepted that a party cannot hide behind its internal procedures, in this case, the Defendant cannot rely on the Kshs.350,000.00/- cap to avoid liability for the reasonable value of the work its agent initiated. 3. The prior, successful transaction for Kshs.40,000.00/- further demonstrates that DW1 had the authority to bind the Defendant and that the parties had an established course of dealing. While the price was much lower, it established the Plaintiff as a legitimate vendor and made it reasonable for the Plaintiff to rely on DW1's instructions. I therefore find that the Plaintiff's claim for the full, specific amount of Kshs. 6,578,000.00/- fails because there was no meeting of the minds on price and, therefore, no binding contract on the same. However, the Plaintiff should not be left without a remedy. The work was undertaken, it benefited the Defendant, and it was done at the Defendant's behest through DW1. It is therefore my finding that it would be just and equitable to award the Plaintiff a sum based on *quantum meruit* and this would be the reasonable value of the services, labour, and materials provided, assessed by the court based on the evidence of the work done (see **Locus Studio Limited v Law Society of Kenya Housing Co-operative Society Limited [2024] KEHC 11044 (KLR)]** 4. In the foregoing, I would assess a sum of Kshs.500,000.00/- as due to the Plaintiff on a *quantum meruit* basis. **Costs of the suit** 1. As the Plaintiff has not been entirely successful in the pursuit of its claim and considering the age of this matter, I will order that each party bears its own costs of the suit. **Conclusion and Disposition** 1. In the foregoing, judgment be and is hereby entered for the Plaintiff against the Defendant for a sum of Kshs.500,000.00/-. This amount shall attract interest at court rates from the date of the judgment until payment in full. Each party shall bear its own costs of the suit. It is so ordered. **DATED SIGNED AND DELIVERED virtually at NAIROBI this 17TH DAY OF JULY 2026** **............................................................................** **J.W.W. MONGARE** **JUDGE** **In the presence of** 1. Mr. Masese holding brief for Mr. Njenga for the Plaintiff. 2. Ms. Wangui holding brief for Mr. Kiragu Wathuta for the Defendants. 3. Amos- Court Assistant