Nation Media Group v Ezemak Refrigeration & Contractors Ltd (Civil Appeal 95 of 2019) [2025] KECA 271 (KLR)
The bottom line
#Kenya's Court of Appeal threw out a contractor's Kshs.3.2 million claim against Nation Media Group, ruling the contractor breached the contract by installing different chillers without written approval.
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 appellant approved the change of model of the chillers to be installed from 'Carrier' to 'Dric'.
- 2.Whether the doctrine of estoppel was applicable in the circumstances of this case.
- 3.Whether the appellant owes the respondent any monies.
Key legal issues
#Whether the appellant authorized the change of chiller model from Carrier to Dric
No authorization, written or oral, was proved; the respondent unilaterally breached the contract by installing Dric chillers.
The respondent consistently alleged written authorization but never produced it, despite undertakings to do so in meetings, correspondence, and the plaint. When that narrative failed, it shifted to claiming verbal authorization from the appellant's resident engineer, who was not called to testify. The Court found the changed narrative smacked of dishonesty, that the variation went to the core of the contract, and that the engineer was at most informed of, not consulted on, the change.
Whether estoppel applied against the appellant
Estoppel was inapplicable; the appellant's position was constant, it queried the variation immediately, and it was the respondent who fraudulently held out that authority had been granted.
The Court found no acquiescence by the appellant: upon noticing the variation it made inquiries and engaged consultants. The respondent could not show any change of position to its detriment. The trial court's contrary finding was erroneous because it rested on meetings which did not in fact amount to approval.
Whether the appellant owed the respondent any monies
No further monies were owed; the cheque of Kshs.4,149,517 accepted as full and final settlement covered the work done, and the respondent was itself the breaching party.
The consultants' unchallenged report valued work on the ground at Kshs.9,653,955.69 excluding VAT, found the work below par (old pumps, unrepaired/old control panel, uninsulated pipes, non-ISO-approved chillers with a refrigerant to be banned by 2030), and recommended a 15-year warranty which the respondent did not offer. The respondent accepted a final payment and signed away any further claim. A counterclaim could have been sustained against it.
Legal principles established
#- On a first appeal, the Court of Appeal must reconsider and evaluate the evidence afresh and draw its own conclusions, while making due allowance for not having seen or heard the witnesses; it is not bound by the trial judge's findings of fact.
- Estoppel cannot be founded on conduct where the party asserting it gave no reliance-changing position; a party who unilaterally varies a material term of a contract without authorization cannot invoke estoppel against the innocent party.
- A material variation of a contract must be agreed between the principals and reduced into writing; an unproved, casual oral variation by staff does not bind a party.
Court orders
#- 1.Appeal allowed
- 2.Judgment and decree of the High Court set aside
- 3.Respondent's suit in the High Court dismissed
- 4.Respondent to pay appellant's costs of the High Court suit
- 5.Appellant to have the costs of this appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- HCCC No. 468 of 2009
- Jurisdiction invoked
- First appeal to the Court of Appeal under its appellate jurisdiction (Article 164 of the Constitution invoked implicitly; judgment states 'This is a first appeal')
Relief refused
#Respondent's claim for the balance of Kshs.3,273,313.81 (specific performance / damages)
The respondent itself breached the contract by unilaterally installing Dric chillers without authority and accepted a full and final settlement payment; the sums paid were sufficient for the work done.
Finding of unjust enrichment against the appellant
The appellant had paid for the chillers and work done up to the point of assessment and did not appear to acquiesce in the respondent's actions.
Costs
Respondent's suit dismissed with costs to the appellant; the appellant shall also have the costs of this appeal.
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.
In the end, we find the appeal merited. We allow it, with the consequence that the judgment and decree of the High Court are set aside; the respondent’s suit in the High Court is dismissed with costs to the appellant. The appellant, too, shall have the costs of this appeal.
The available evidence is that no written permission was obtained, nor evidence of oral authorization was proved. The breach of contract was on the respondent, as it opted, without reference to the appellant, to vary the specification of the chillers.
One would expect that such a serious variation to the contract would be discussed between the principals and reduced into writing.
this Court must reconsider the evidence, evaluate it itself, and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses
We are of the view that the balance paid to the respondent, which they acknowledged to have been the final payment, was suficient for work done, and it ought not to claim further payments.
Issues in the judgment
#The judgment inconsistently dates key events: the letter enclosing the final-settlement cheque is dated 20th August 2008 in one passage and 20th August 2024 in another.
The judgment inconsistently renders the name of the environmental authority as 'Neema' and 'NEMA'.
The date of the meeting before Dr. Kiama is given as 28th May 2008 in one passage and 28th May 2018 in another.
The respondent's letters of quotation are stated as '26th September 2006 and 31st October 2021', the latter being an apparent typographical error for 2006.
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.
- Ndubai v M’Ikunyua & 4 others (Environment and Land Appeal E019 of 2022) [2025] KEELC 6124 (KLR)[2025] KEELC 6124 (KLR)16 Sept 2025
Cite this brief
#Cite this brief
Caselaw, "Nation Media Group v Ezemak Refrigeration & Contractors Ltd (Civil Appeal 95 of 2019) [2025] KECA 271 (KLR)", Case Analysis (2025). Civil Appeal (from HCCC No. 468 of 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/271/eng@2025-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.