Total Kenya Limited v D Pasacon General Construction & Electrical Services
The bottom line
#Kenya's Court of Appeal confirmed that oral instructions from a supervising engineer can bind a company to pay for extra construction work, even without a written purchase order.
What this practically means
#Executive summary
#Key legal issues
#Existence of an oral contract for additional works
An oral contract existed; the court presumed the fact of verbal instructions under Section 119 of the Evidence Act from the parties' conduct, the absence of objections, and the executed job completion form and delivery note.
The court applied Section 119 of the Evidence Act permitting presumption of facts likely to have occurred. Eng. Kipkorir supervised construction at the service station; additional works proceeded from 14th July to 26th September 2010 without objection; a job completion form and delivery note were received and executed by both parties. The elements of a valid contract were established, affirming the High Court's finding of an oral contract.
Ostensible authority of Eng. Kipkorir
Eng. Kipkorir had ostensible authority to contract for the additional works because he supervised the works at the appellant's service station and the respondent reasonably believed he had authority.
Adopting Black's Law Dictionary definition of an apparent agent, the court held that ostensible authority depends on the reasonable belief of the counterparty rather than actual conferral of authority. Kipkorir supervised both the initial and subject works at the appellant-owned service station, so the respondent rightly believed he could request additional works, binding the appellant.
Burden of proof
The respondent discharged its burden under Section 107 of the Evidence Act by pleading and proving the circumstances of the oral contract; the court could presume the existence of the facts under Section 119.
The appellant argued the Judge shifted the burden of proof. The court held the respondent, having claimed the existence of an oral contract and described the circumstances giving rise to it, properly discharged its burden. The court then relied on Section 119 of the Evidence Act to presume the existence of the facts from the parties' conduct and prevailing facts.
Legal principles established
#- On a second appeal the Court of Appeal confines itself to questions of law and will not interfere with concurrent findings of fact unless the courts below considered matters they should not have, failed to consider matters they should have, or the decision is perverse.
- A contract for works need not be in writing; an oral contract may be inferred from the conduct of the parties, and the absence of a local purchase order does not render such an oral contract void.
- An agent who supervises works at an employer's premises has ostensible authority where the counterparty reasonably believes he has authority to contract, regardless of actual authority.
Court orders
#- 1.Appeal dismissed
- 2.No order as to costs
- On appeal from
- High Court
- H.C.C.C. No. 3 of 2018
- Jurisdiction invoked
- Second appeal to the Court of Appeal under Article 164(3) of the Constitution (implied; not expressly cited in the judgment)
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.
- Ndungu v Mwangi (Environment & Land Case E026 of 2022) [2025] KEELC 299 (KLR)[2025] KEELC 299 (KLR)29 Jan 2025applied
- Baghrab v Al-Busaidy & 2 others (Appeal 37 of 2022) [2024] KEELC 1158 (KLR)[2024] KEELC 1158 (KLR)21 Feb 2024
Cite this brief
#Cite this brief
Caselaw, "Total Kenya Limited v D Pasacon General Construction & Electrical Services", Case Analysis (2022). Civil Appeal 119 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/593/eng@2022-07-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.