Malia & Lucas Company Limited v County Government of Trans-Nzoia (Civil Appeal 99 of 2019) [2023] KECA 1143 (KLR)
The bottom line
#A contractor's Kshs 32.9 million claim against Trans-Nzoia County failed because its contracts were unsigned, unsealed, and procured illegally.
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 learned judge erred in law and in fact by completely failing to appreciate the evidence tendered by the appellant against the respondent thus arriving at a decision which lacks any basis in law and fact
- 2.Whether there was any valid contract between the appellant and the respondent
- 3.Whether the appellant rendered any services to the respondent
- 4.Whether the appellant is entitled to any payment
Key legal issues
#Whether the trial judge failed to analyze the evidence and frame issues
The judge framed the issues and adequately analyzed the evidence; there is no set format for evaluation and substance matters over length
The Court found the trial judge had distilled three issues and appraised the evidence. In any event, the parties themselves did not file a list of agreed issues, so the appellant could not blame the judge. There is no uniform method of evidence evaluation; the substance of the analysis is what counts.
Whether there was a valid contract between the appellant and the respondent
No valid contract existed; the contracts were unsigned by the respondent, unsealed, not preceded by any tender process, and offended Section 33(1) of the Public Procurement and Disposal Act
None of the seven contracts was signed by an authorized officer of the respondent nor bore its seal, contrary to Section 3(1) of the Law of Contract Act. There was no evidence of advertisement, tender opening or evaluation. Further, a director of the appellant was an employee of the respondent, precluding the contract under Section 33(1), rendering the contracts null and void ab initio.
Whether the appellant rendered services and is entitled to payment
Even if some work was done, the Local Service Orders and completion certificates lacked the respondent's seal and authenticity, and estoppel could not apply; with no valid contract there is no basis for payment
The Local Service Orders and completion certificates did not bear the respondent's official seal, some were barely legible, and it was unclear who signed them. The claim was founded on non-compliance with procurement rules, an illegality, and no court will assist such a claimant; the appeal therefore fell on all fours.
Legal principles established
#- A first appellate court must re-evaluate and consider afresh the evidence tendered before the trial court and come to its own independent conclusion
- A contract to which a public procuring entity is a party must be signed/executed by an authorized officer of that entity to be enforceable, per Section 3(1) of the Law of Contract Act
- A procuring entity may not contract with its own employee, and such a contract is null and void ab initio under Section 33(1) of the Public Procurement and Disposal Act
- No court will lend its aid to a claimant who founds its cause of action on an illegal act (ex turpi causa)
- There is no uniform method for evaluation of evidence; what matters is substance, not length
Court orders
#- 1.The appellant's appeal is dismissed in its entirety
- 2.Costs of the appeal awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kitale
- Kitale High Court Civil Case No.1 of 2017
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (rule 31 of the Court's Rules)
Relief refused
#The appellant's claim of Kshs 32,906,960.00 for alleged road works
No valid contract existed; the contracts were unsigned by the respondent and contrary to the Public Procurement and Disposal Act; no court will assist a claimant founded on an illegal act
Costs
The appeal is dismissed in its entirety 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.
Ultimately therefore, the appellant’s appeal is without merit and the same is hereby dismissed in its entirety with costs to the respondent.
It is evident that the “contracts” between the appellant and the respondent were so fundamentally fiawed to the extent that they were null and void abinitio. It is our considered view that indeed there was no valid contract between the appellant and the respondent and we so hold and find.
No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act.
By virtue of Victor Odira Okul being a an employee of the respondent, he was precluded from entering into a contract with the respondent by virtue of Section 33 (1) of the Public Procurement and Disposal Act No. 3 2005.
It is not in dispute that both the appellant and the respondent called one witness each in support of their respective case.
Issues in the judgment
#The judgment inconsistently names the procuring/contract legislation, referring to both 'Public Procurement and Disposal Act 2005' and 'Public Procurement and Asset Disposal Act of 2005' in the respondent's submissions
The appeal number is never stated in the judgment; only the High Court case number is given
Holman v Johnson citation is misprinted as [17775] 1 Cowp 341 in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Malia & Lucas Company Limited v County Government of Trans-Nzoia (Civil Appeal 99 of 2019) [2023] KECA 1143 (KLR)", Case Analysis (2023). Civil Appeal (Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1143/eng@2023-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.