Moniks Agencies Limited v Kenya Airports Authority
The bottom line
#The Court of Appeal dismissed a clearing agent's Kshs. 124 million claim against Kenya Airports Authority, holding that agreed contract rates bind both parties and cannot be unilaterally changed.
What this practically means
#Executive summary
#Key legal issues
#Number and terms of the contracts between the parties
Two contracts existed: the written Terminal 4 contract at 0.1% of CIF value, and an unwritten Terminal 2 contract performed on the same terms, inferred from the parties' conduct.
The award letter of 8th May 2014 confirmed the Terminal 4 tender at 0.1% of CIF value. For Terminal 2 no written contract existed, but letters, emails, and concurrent oral testimony showed a direct award to the appellant, which performed without protesting the terms. Applying principles on implied contracts, the court held a party cannot refuse terms it silently performed under and later seek to impose new terms.
Whether the contracts were fundamentally altered
The only valid alteration was the tender-committee-approved rate of 0.4% of CIF for bond cancellation under section 47 of the repealed Public Procurement and Disposal Act 2005; this did not fundamentally alter the contracts.
Bond cancellation was not part of the original clearing-services contract, as shown by the award letter, the separate 0.4% rate approved by the tender committee, and the respondent's correspondence. The amendment complied with section 47, binding both parties. The alleged 60-day performance period was merely the tender validity period, and the expanded scope claim was addressed under the extra-work issue.
Whether the appellant performed additional work
No. The claimed tasks were within the scope of clearing services or bond cancellation and were not payable separately.
The alleged extra services — preparing and correcting documents, cancelling bonds, securing certificates of conformity, tracing consignments, amending shipping documents — fell within the contractual scope per DW1's unrebutted testimony. The appellant never complained of an expanded scope during performance, raised no invoices for extra work, and DW1's reference to an additional assignment concerned the separate Terminal 2 contract, not an admission of extra work.
Reliefs and the disposition of the invoices
All invoices raised at the contractual rates were paid; the appellant's invoices at 2.5% and 3% did not conform to the contractual rates and could not be enforced.
The appellant invoiced Kshs. 58,665,048 using non-contractual rates of 2.5% and 3%; the respondent paid Kshs. 7,038,266 based on invoices at the contracted rates, and that assertion was uncontroverted. A party cannot impose a perceived market rate over an agreed rate. The High Court's direction to pay upon production of invoices was therefore unnecessary, and both the appeal and the plaintiff's claim fail.
Legal principles established
#- A contract may be inferred from the conduct of the parties even where no written document exists, and where no final document outlines the terms, the court may consider surrounding circumstances including prior contracts between the parties.
- A procuring entity's contract amendment is effective only if approved in writing by the tender committee, and once so approved the amended rate binds both parties.
- A party to a contract cannot unilaterally impose a perceived market rate where the parties had mutually agreed on a given rate.
- On a first appeal the court's mandate is akin to a retrial: it reconsiders and evaluates the evidence and draws its own conclusions, but will not normally interfere with findings of fact unless based on no evidence, misapprehension of the evidence, or wrong principles.
- The 60-day period in a tender award refers to the validity period of the quotation, not the period for performance of the contract.
Court orders
#- 1.Dismissal of the appellant's appeal
- 2.Allowance of the respondent's cross-appeal, with the appellant's claim before the High Court dismissed in its entirety
- 3.Costs of the appeal and of the proceedings before the High Court awarded to the respondent
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- First appellate jurisdiction over the High Court (the Court describes it as 'a first appeal' whose mandate 'is akin to a retrial')
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moniks Agencies Limited v Kenya Airports Authority", Case Analysis (2025). Civil Appeal (record not expressly numbered in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/471/eng@2025-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.