Midado Communications Limited v Total Kenya Limited [2016] KECA 86 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you can owe millions under a contract that was never written down or signed.
What this practically means
#Executive summary
#Key legal issues
#Whether a contract for the supply of fuel existed between the parties absent a produced written contract
The court affirmed that a contract existed, inferable from the parties' conduct: offer, acceptance and consideration passed, and the appellant's own invoicing of Kengen for the fuel supplied by the respondent demonstrated the existence of the contract.
Although no written contract was produced, the appellant admitted in its defence that it won the tender to supply fuel to Kengen. The respondent pumped 1,906,110 litres of fuel oil to Kengen's Kipevu Power Station at the appellant's request, and the appellant settled the earlier invoice for the Triton supply. The court, adopting Timoney and King v King, held that conduct can conclude a contract, and found offer, acceptance and consideration.
Whether the invoicing error was explained and whether the balance of KShs.14,140,644.93 was due
The respondent satisfactorily explained the mistaken invoicing of the Triton supply in place of the Kengen supply; the balance of KShs.14,140,644.93 after payment of KShs.16,833,448.12 was due and owing.
The respondent's accountant explained the confusion over invoicing and appropriate invoices were produced. The appellant did not testify and offered no explanation why the delivery of 1,906,110 litres would cost less than other deliveries. The appellant's conduct in invoicing Kengen for the supplied fuel implied the fuel was part of its tender supply, defeating its denial of liability.
The duty of a first appellate court
As a first appellate court, the Court of Appeal is obliged to re-assess and re-analyse the evidence on record, guided by Kenya Ports Authority v Kuston (Kenya) Limited.
The court restated the classic first-appeal principle: it must reconsider the evidence, evaluate it itself and draw its own conclusions, while making due allowance for not having seen or heard the witnesses, and ruling only on the evidence on record without introducing extraneous matters not dealt with by the parties.
Legal principles established
#- On a first appeal, the Court of Appeal must reconsider and re-evaluate the evidence on record and draw its own conclusions, while making due allowance for the fact that it neither saw nor heard the witnesses.
- A contract may be inferred from the conduct of the parties even where no words, or no signed written document, record its terms.
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal awarded to the respondent
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No. 25 of 2002
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction over the High Court in civil matters
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Nairobi University v Opar (Employment and Labour Relations Appeal E082 of 2024) [2025] KEELRC 1576 (KLR)[2025] KEELRC 1576 (KLR)30 May 2025
- Ganesh Engineering Works Limited & 3 Others v [Defendant][2017] KEHC 1541 (KLR)20 Dec 2017
Cite this brief
#Cite this brief
Caselaw, "Midado Communications Limited v Total Kenya Limited [2016] KECA 86 (KLR)", Case Analysis (2016). Civil Appeal No. 279 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/86/eng@2016-11-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.