Hezekiah Adala t/a Hezekiah Engineering Services v Tana Teachers Sacco Society Limited [2018] KECA 735 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that contractors cannot claim extra payment for changed public- tender work without written tender committee approval and proof of the value of work done.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the contract was varied in the terms alluded to by the appellant, particularly by the respondent's letter dated 17th February 2009
- 2.Whether the requirement of tender committee approval under Section 47 of the Public Procurement and Disposal Act, 2005 governed the variation of the contract
- 3.Whether the appellant proved his case on a balance of probabilities, including completion of the works and quantification of sums due
- 4.Whether the trial Judge erred in dismissing the appellant's uncontroverted suit
Key legal issues
#Whether the contract was varied
The letter of 17th February 2009 did not effect a variation; it merely acknowledged that some items may have been overlooked and promised consultation with the respondent's consultant. No tender committee approval was shown as required under Section 47 of the PPDA, 2005, the respondent being a public entity.
The court read the letter closely and found it did not accept the variation but deferred a decision pending consultation with the consultant. Because the respondent is a co-operative society falling within the definition of a public entity under Section 2 of the PPDA, 2005, any amendment required written tender committee approval, which was never produced. The learned Judge's finding on variation was therefore affirmed.
Whether the appellant proved his case on a balance of probabilities
The appellant, by his own admission, had not completed the contract works and could not quantify the value of work done; his claim therefore failed even though the suit was uncontroverted.
The court found the appellant admitted non-completion and inability to quantify the work done. Non-attendance by the respondent at trial did not relieve the appellant of his evidential burden. The claim for an unquantified balance could not be sustained, and the trial court's dismissal was upheld.
Legal principles established
#- An amendment or variation of a contract awarded by a public entity through open tendering is effective only if approved in writing by the tender committee of the procuring entity and based on prescribed price or quantity variations
- A first appellate court may reappraise the record in the manner of a retrial but will not lightly differ with findings of fact of the trial court, which saw and heard the witnesses, unless the findings lacked evidential basis or were made through an error in principle
- The absence of a defendant at trial does not dilute the plaintiff's burden to prove its case on a balance of probabilities
Court orders
#- 1.Appeal dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- H.C.C.C. No. 120 of 2012
- Jurisdiction invoked
- First appeal under the Court of Appeal Rules (Rule 29(1) of the Court of Appeal Rules invoked); no constitutional provision cited
Relief refused
#Setting aside the High Court judgment dismissing the suit and recovery of Kshs. 7,004,163.80
No variation of the contract was proved as required under Section 47 of the PPDA, and the appellant failed to complete or quantify the works
Costs
Appeal dismissed with costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Based on the foregoing, we find that the appeal lacks merit and is hereby dismissed with costs.
As always, we shall not lightly differ with the findings of fact made by the trial Court, which had the added advantage of seeing and hearing the witnesses, but will not hesitate to do so if, in our assessment, the findings were made without any evidential basis or through an error in principle.
A very important aspect of contract variation was therefore missing from the plaintiff's evidence.
the fact that it was not present during the hearing did not in any way water down the burden on the appellant to establish his case on a balance of probability
Issues in the judgment
#The judgment records delivery 'at Mombasa this 15th day of February 2018' while the appeal is listed as Civil Appeal No. 12 of 2017; no internal contradiction on the date itself, but the certified copy contains no paragraph-level inconsistency. Flag is limited to the mislabelled letter: the respondent's letter is referred to as dated 7th February 2009 in the grounds of appeal but the letter reproduced is dated 17th February 2009.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mary Aoko Oduor v Sparkfresh Investments Limited [2018] KEELRC 1974 (KLR)[2018] KEELRC 1974 (KLR)27 Apr 2018
Cite this brief
#Cite this brief
Caselaw, "Hezekiah Adala t/a Hezekiah Engineering Services v Tana Teachers Sacco Society Limited [2018] KECA 735 (KLR)", Case Analysis (2018). Civil Appeal No. 12 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/735/eng@2018-02-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.