Royal Media Services Ltd v Independent Elections & Boundaries Commission & 3 others (Civil Appeal 239 of 2019) [2026] KECA 1537 (KLR)
The bottom line
#Royal Media Services lost its Kshs.182 million election advertising claim because the deal broke procurement law, so the court refused to enforce it.
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 established the existence of a valid and enforceable contract between itself and the IEBC or any of the respondents
- 2.Whether the procurement of the impugned services complied with the Public Procurement and Disposal Act, 2005 and, if not, the legal effect of such non-compliance
- 3.Whether, in the absence of a valid contract or in the event of illegality, the appellant is nonetheless entitled to any restitutionary remedies, including quantum meruit
- 4.Whether the trial court erred in holding that the claim against the 4th respondent was statute-barred
- 5.Whether any liability attaches to the 2nd and 3rd respondents in their personal capacities
- 6.Whether the trial court properly exercised its discretion on costs
Key legal issues
#Existence of a valid and enforceable contract
No valid and enforceable contract was established; although contracts may in appropriate circumstances be inferred from conduct, the appellant failed to prove clear, agreed terms binding the IEBC, and the stamped advertising booking sheets did not amount to a concluded agreement
It was conceded that no formal written contract was executed. While contracts may in appropriate circumstances be inferred from conduct absent statutory exclusion, the burden lay on the appellant to demonstrate clearly agreed terms binding the IEBC. The advertising booking sheets, though stamped by the IEBC, did not amount to a concluded agreement setting out essential terms. Applying this Court's emphasis in University of Nairobi v Devcon Group Limited, a claim founded on contract requires proof of the contract's existence and terms, failing which no enforceable obligation arises.
Compliance with the Public Procurement and Disposal Act, 2005 and the effect of non-compliance
The procurement contravened mandatory statutory provisions; compliance is a substantive requirement and a shared obligation, and the illegal arrangement was unenforceable even though the services were actually rendered
Sections 74 and 75 of the Act, read with Regulations 58 and 62 of the 2006 Regulations, prescribe strict safeguards for direct procurement: recorded justification, negotiations conducted by at least two officers of the procuring entity, a formal negotiation report, and a written contract signed by both parties. The only meeting relied on involved a single IEBC representative and no written contract was executed; the stamped booking sheets were not a contract within the statute. Section 27 extends compliance obligations to contractors, so the appellant could not treat compliance as an internal matter for the IEBC.
Availability of restitutionary remedies, including quantum meruit, despite illegality
Illegality is a fundamental obstacle: ex turpi causa non oritur actio precludes recovery, and quantum meruit cannot be invoked to defeat or circumvent express statutory prohibitions
The maxim ex turpi causa non oritur actio dictates that a court will not enforce a claim founded on an illegal act. Applying Heptulla v Noormohamed and Mistry Amar Singh v Kulubya, no court ought to enforce an illegal contract where the claimant is implicated in the illegality, whether or not the defendant pleaded it. The countervailing public interest in upholding the integrity of the procurement framework outweighed the fact that the services benefited a public entity, and Patel v Singh confirms that relief is unavailable where the claim depends on the claimant's own illegal act.
Determination of the limitation defence against the 4th respondent without a formal preliminary objection or active prosecution of that defence
Section 3(2) of the Public Authorities Limitation Act is a substantive jurisdictional bar; the court may take up limitation on the record and was obliged to give effect to it; the trial judge did not descend into the arena
The cause of action accrued at the latest in November 2013 when payment was formally demanded; the 4th respondent was joined by further amended plaint in February 2017, outside the three-year period prescribed by section 3(2) of the Public Authorities Limitation Act. That provision is a substantive jurisdictional bar: a court cannot confer jurisdiction on itself, nor ignore an express statutory bar merely because it was not forcefully urged. The defence had also been pleaded, and the trial court did no more than apply the law to facts apparent on the face of the record.
Personal liability of the 2nd and 3rd respondents in their individual capacities
No personal liability attaches to Mr. Hassan and Mr. Oswago; the acts were done in discharge of their official functions with no proof of bad faith, unlawfulness or excess of authority
The Court found no personal undertaking, assumption of liability, or conduct outside the scope of their mandate. The acts complained of were undertaken in discharge of their official functions as officers of the IEBC, and no bad faith, unlawfulness or excess of authority was proved. The appellant's contention that the 2nd and 3rd respondents were sued in their individual capacities as the architects of the transaction did not displace the absence of evidence supporting personal liability.
Exercise of the trial court's discretion on costs
The award of costs to the respondents was a judicial exercise of discretion warranting no interference; costs follow the event absent exceptional circumstances
The award of costs is a matter within the discretion of the trial court, to be exercised judicially. The respondents successfully defended the suit both at trial and on appeal, and no exceptional circumstances warranted departing from the general rule that costs follow the event. The appellant's complaint that the respondents initiated the transaction, benefited from the services and then declined to pay did not, in the Court's view, render the award punitive or unjust, so the discretion was not disturbed.
Legal principles established
#- A first appeal proceeds by way of rehearing: the appellate court must reconsider the evidence, evaluate it independently and draw its own conclusions, while making allowance for not having seen or heard the witnesses
- Section 3(2) of the Public Authorities Limitation Act (three years for contract claims against the Government) is a substantive jurisdictional bar, not a mere procedural rule; once time has run, the court is divested of jurisdiction
- A court is entitled, indeed obliged, to give effect to a statutory limitation bar disclosed on the record even where no formal preliminary objection is taken and no party forcefully urges it
- Compliance with public procurement law is a shared statutory obligation extending beyond the procuring entity to contractors, suppliers and consultants, and is a substantive requirement going to the validity of the transaction itself
- Services procured in contravention of the mandatory provisions of the Public Procurement and Disposal Act, 2005 give rise to an unlawful and unenforceable arrangement which the court will not enforce, and no equitable or restitutionary remedy (including quantum meruit) can be invoked to escape the consequences of that non-compliance
- Under the ex turpi causa doctrine, no court will enforce an illegal contract where the claimant is implicated in the illegality, whether or not the defendant pleaded it
- Public officers are not personally liable for acts done in discharge of their official functions absent proof of bad faith, unlawfulness or action beyond their authority
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.The appellant to pay the respondents the costs of the appeal ('with costs to the respondents')
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi, Commercial and Tax Division
- High Court Civil Suit No. 352 of 2014
- Jurisdiction invoked
- First appellate jurisdiction over the High Court; the judgment describes itself as 'a first appeal arising from the decision of the High Court at Nairobi (Commercial and Tax Division)' but does not expressly cite the empowering constitutional or statutory provision
Relief refused
#Judgment jointly and severally against the respondents for Kshs.182,000,000/= with interest at 20% per annum, as prayed in the suit and the memorandum of appeal
No valid and enforceable contract was proved, and the services, though rendered, were procured in contravention of the mandatory provisions of the Public Procurement and Disposal Act, 2005, rendering the arrangement unlawful and unenforceable
Restitutionary relief on quantum meruit for the services rendered
The doctrine of illegality is a fundamental obstacle, and quantum meruit cannot be used to circumvent express statutory prohibitions
Reversal of the finding that the claim against the 4th respondent (Cabinet Secretary for the National Treasury) was statute-barred
Limitation under the Public Authorities Limitation Act goes to jurisdiction; the court may take the point on the record and was obliged to give effect to the statutory bar, and the trial judge did not descend into the arena
Personal liability against the 2nd and 3rd respondents (Mr. Hassan and Mr. Oswago) as the alleged architects of the transaction
The acts were undertaken in discharge of their official functions as IEBC officers, with no proof of bad faith, unlawfulness or conduct beyond their authority
Interference with the award of costs to the respondents
The award of costs is discretionary, the respondents successfully defended the suit, and no exceptional circumstances warranted departing from the rule that costs follow the event
Costs
The appeal was 'accordingly dismissed in its entirety with costs to the respondents' - the appellant to bear the respondents' costs of the appeal. The High Court's order dismissing the suit with costs was left undisturbed, the Court finding no reason to interfere with that exercise of discretion.
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, and for the reasons we have set out hereinabove, we find no merit in this appeal. It is accordingly dismissed in its entirety with costs to the respondents.
This being a first appeal, it is well settled that this Court is not bound to accept the findings of fact made by the trial court.
It is a substantive statutory bar that extinguishes the right to bring an action against the Government after the lapse of the prescribed period. Once time has run, the court is divested of jurisdiction to entertain the claim.
where the material on record discloses that a claim is statute-barred, the court is entitled, indeed obliged, to give efiect to the law.
The legal framework, therefore, contemplates mutual accountability, and a contracting party cannot avoid responsibility by characterizing compliance as an internal matter of the procuring entity.
No court ought to enforce an illegal contract or allow itself to be made the instrument of enforcing obligations alleged to arise out of a contract or transaction which is illegal, if the illegality is duly brought to the attention of the court, and if the person invoking the aid of the court is himself implicated in the illegality.
while the doctrine may, in appropriate cases, allow recovery for services rendered in the absence of a formal contract, we are satisfied that it cannot be invoked to defeat or circumvent express statutory prohibitions.
In the absence of a written agreement and clear proof of mutually binding obligations, we are not satisfied that the appellant established the existence of a valid and enforceable contract.
Issues in the judgment
#The judgment records two different dates for the joinder of the 4th respondent. In reciting the 4th respondent's submissions it states the joinder occurred 'on 20th February 2017 through an amended plaint', but in its own analysis the Court states the joinder was through 'the further amended plaint filed on 10th February 2017'. The discrepancy does not affect the conclusion that the suit was filed outside the three-year period.
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.
- Njuguna v Lochab Transport Limited (Cause 613 of 2017) [2023] KEELRC 92 (KLR)[2023] KEELRC 92 (KLR)19 Jan 2023
Cite this brief
#Cite this brief
Caselaw, "Royal Media Services Ltd v Independent Elections & Boundaries Commission & 3 others (Civil Appeal 239 of 2019) [2026] KECA 1537 (KLR)", Case Analysis (2026). Not stated in the judgment (first appeal from High Court Civil Suit No. 352 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1537/eng@2026-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.