Augustine M Siwa v Kerio Valley Development Authority [2015] KECA 288 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you cannot claim consultancy fees without proving the parties actually agreed on the amount, even if the work was done.
What this practically means
#Executive summary
#Key legal issues
#Whether a consultancy agreement existed between the appellant and the respondent and whether KShs.720,000/= was payable
No consultancy agreement on the claimed fees was proved; the High Court was right to hold that the sum of KShs.720,000/= was not payable and the Court of Appeal declined to interfere.
The appellant and two employees of the respondent jointly conducted the feasibility study, but the evidence showed only that the appellant suggested a fee of KShs.720,000/= to some employees of the respondent, which was never agreed. The respondent had instead paid KShs.42,000/= as facilitation fees by imprest warrant. The request for payment of the larger sum was made only after completion of the work, in a letter dated 27th November 2003, and was denied by the Managing Director. With no agreed fee, the appellant could not discharge the burden of proving his claim.
Scope of a second appeal to the Court of Appeal
A second appeal lies only on the grounds specified in section 72(1) of the Civil Procedure Act: that the decision is contrary to law, failed to determine a material issue of law, or involves a substantial procedural error possibly affecting the merits.
The court invoked section 72(1) of the Civil Procedure Act to frame the limits of its review. As a second appeal from the High Court sitting as a first appellate court, the Court of Appeal does not revisit findings of fact but confines itself to questions of law. The court then applied that limited scope to the single legal issue of whether the learned judge erred in holding that no consultancy agreement existed, and found no error of law in that conclusion.
Legal principles established
#- On a second appeal, the Court of Appeal's consideration is confined to matters of law as set out in section 72(1) of the Civil Procedure Act.
- A party claiming consultancy fees must prove the agreement and the agreed terms; performance of work alone does not establish entitlement to a specific fee where no agreement on fees is proved.
Court orders
#- 1.Appeal dismissed with costs to the respondent
- On appeal from
- High Court of Kenya at Eldoret
- H.C.C.A. No. 5 of 2009
- Jurisdiction invoked
- Section 72(1) of the Civil Procedure Act (second appeal from a decree passed in appeal by the High Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Augustine M Siwa v Kerio Valley Development Authority [2015] KECA 288 (KLR)", Case Analysis (2015). Civil Appeal No. 178 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/288/eng@2015-10-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.