Teachers Service Commission v Aquachem Technologies Limited

required an ultra-filtration pre-treatment system in order to achieve the required silt density index (SDI) levels to eliminate clogging and for the installed equipment to work efficiently. 4. The appellant therefore proposed to the respondent that it would vary the contract upwards by KShs 1,500,000/= to enable the respondent acquire and fix the recommended ultra-filtration pre-treatment system. The respondent responded by indicating to the appellant that the sum proposed was not feasible as this amount was far below what was available in the market. The respondent asked to be paid the outstanding amount of KShs 4,447,233/= under the contract due and owing to it. The appellant failed to settle that amount thereby leading to the respondent filing the suit. 5. The appellant in its statement of defence dated 31st August 2022 admitted that there was a contract between itself and the respondent as pleaded by the respondent. 6. In execution of the contract the appellant appointed the director of Water Services at the Ministry of Water, Sanitation and Irrigation as the project manager to monitor and supervise the project on behalf of the appellant. 7. The appellant averred that the project was in two phases and that the respondent had successfully completed the first phase by delivering and installing the equipment but not delivered the second phase as the plant had not been commissioned to ensure it meets the required yield of water as per the tender document and the contract. 8. The appellant pleaded further that the parties together with the project manager met at the project site on 2nd April 2019, for inspection, the same did not take place as the respondent as the contractor insisted on inspection being done only for the silt density index (SDI) and not any other parameters of the system installed. The project manager recommended that a thorough project inspection and audit be done on the RO system to establish the reasons why it was not working. 9. The appellant averred that the project was inspected on 14th May 2019 as per the project manager’s recommendation and in their report dated 21st May 2019 to the Secretary/CEO of the appellant, the project manager indicated that the contractor had completed the project works successfully as per the contract document and the engineer’s valuation report. The inspection had established that the RO system installed gave too low volumes of water and experienced clogging of the membranes faster than normal. The cause of this was established to be high Silt Density Index (SDI) which is a rare phenomenon and is not a standard water tests parameter and therefore could not be factored in during project inception stage but is considered a variation whenever it occurs. 10. The project manager recommended that the RO system required an ultrafiltration pre-treatment system in order to achieve the required SDI levels to eliminate clogging of the membranes and boost the overall water yield. He estimated the cost at KShs 1,500,000/=. 11. The appellant averred that in line with the recommendation of the project manager, it agreed to vary the contract sum within the ambit of the procurement law to the tune of KShs 1,500,000/= but on advising the respondent, it declined the same and proposed a counter offer of KShs 2,890,000/=. 12. In letter dated 15th October 2019, Engineer SAO Alima for the Principal Secretary Ministry of Water & Sanitation and Irrigation wrote to John Chege, the technical manager of the respondent inviting the respondent for a meeting. In that letter Engineer SAO Alima wrote, “ The installed RO gives too low water yields due to high SDI levels and therefore requires an Ultra filtration system to improve the SDI of raw water to acceptable levels before feeding to main RO system.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18311/eng@2025-11-21 2

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13. The appellant subsequently unsuccessfully sort bids from other contractors for the installation of the ultra-filtration pre-treatment system with the submitted bids ranging between KShs 4,070,000/= and KShs 6,603,960/=. 14. The appellant contended that the correspondences from the Ministry of Water and Sanitation did not give the project a clean bill of health in terms of successful completion of the works by the respondent. The appellant averred that indeed the Ministry of Water and Sanitation recommended for the installation of an ultra-filtration system and that meant that the project was not completed and remains incomplete. 15. The appellant averred that the respondent may have supplied equipment with lower performance and functionality level and wanted to impose the same on the appellant to pay for. Its position was that the RO machine installed by the respondent failed to perform the function for which it was intended, to supply purified water fit for human consumption, and therefore the respondent had failed to perform the contract as expected and so was not entitled to full payment of the contract sum. 16. The respondent filed a reply to defence dated 7th December 2022 in which it joined issue with the defence. 17. The respondent averred that the contract was only one phase which it duly delivered as per the scope and the same had been successfully commissioned. It denied that the contract was in two phases as contended by the appellant and averred that the ultra-filtration pre-treatment system was outside the scope of the contract. It was therefore its contention that it could not carry out the installation of the ultra-filtration pre-treatment system at the proposed price of KShs 1,500,000/= as it was far below the prevailing market rates, it was not part of the contract and it had not been issued with any Local Purchase Order (LPO) or Local Service Order (LSO) for the same. 18. The respondent’s position was therefore that in failing to pay the balance of the contract sum, the appellant was in breach of the contract. 19. Each of the parties made available witnesses who testified in the case largely upon the lines of their pleadings and was cross-examined thereon. 20. At the hearing, the respondent called one witness, PW 1, John Njoroge Chege its technical manager. He adopted his witness statement dated 22nd March 2022 and supplementary witness statement dated 7th October 2022 as his evidence in chief and produced the documents in the list of documents dated 2nd March 2022 and supplementary list of documents dated 7th September 2022 as exhibits. 21. The exhibits were: a. Contract executed by the parties. b. Appellant’s letter dated 16th April 2018. c. Respondent’s letter dated 3rd December 2018. d. Water Resource Authority Expert Report dated 30th August 2018. e. Respondent’s letter dated 10th January 2019. f. Respondent’s Invoice number 5494 g. M/S GND Solutions expert report dated 8th February 2019. h. Respondent’s letter dated 11th February 2019. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18311/eng@2025-11-21 3

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i. Ministry of Water & Sanitation letter dated 15th April 2019. j. Ministry of Water and Sanitation letter dated 21st May 2019. k. Respondent’s Invoice No. 5465. l. Respondent’s letter dated 27th September 2019. m. Appellant’s letter dated 1st October 2019. n. Respondent’s letter dated 15th November 2019. o. Demand letter dated 28th February 2022. 22. The respondent’s evidence was that it successfully installed and commissioned the equipment and its performance was satisfactory save for the challenge of reduced water yields, clogging and frequent replacement of accessories, but that these had nothing to do with equipment installed but rather outside the scope of the contract. The respondent had identified the particular challenge and made recommendations through its letter to the appellant dated 10th January 2019. 23. In cross-examination, PW 1 said that there was a mandatory requirement in the tender document that the machine installed would be tested after installation. He said that it was tested and a report prepared and that they encountered a problem during testing. The RO system worked for two weeks before clogging. 24. PW 1 was emphatic that the respondent supplied and installed the required RO machine. 25. DW 1, Patrick Mwai, the technical manager of the appellant, gave evidence for the appellant. He also adopted his witness statement dated 31st August 2022 as his evidence in chief and also produced the documents as per the list of documents dated 31st August 2022 as exhibits. The appellant’s exhibits comprised of some of those produced by the respondent with the following additions: a. Extract of the tender document. b. Agreement for the supply, delivery and installation of water purification reverse osmosis unit. c. Letter dated 8th February 2019 from GND Solutions. d. Report dated 10th February 2019 on reverse osmosis project by Romer Environmental Protection Ltd. e. Letter dated 11th March 2019 from Ministry of Water & Sanitation. f. Quotation from Davis & Shirtliff. g. Letter dated 15th April 2019 from Ministry of Water & Sanitation. h. SDI Test Report dated 17th April 2019 from Davis & Shirtliff. i. Ministry of Water and Sanitation letter dated 21st May 2019. j. Letter dated 1st October 2019 from TSC. k. Letter dated 3rd October 2019 from the respondent. l. Letter dated 11th October 2019 from TSC. m. Letter dated 15th October 2019 from the Ministry of Water & Sanitation. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18311/eng@2025-11-21 4

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n. Letter dated 18th December 2019 from TSC. o. Letter dated 21st January 2020 from TSC. 26. According to DW 1, the project was in two phases. The first phase was for the supply, delivery and installation of 1 No. Unit Water Purification/Reverse Osmosis Unit and the 2nd phase was to install and connect the unit to the existing reticulation system to supply water for human consumption thereby ensuring that Reverse Osmosis system meets all the parameters described in the tender document through testing and commissioning or take over of the works. The contractor had completed the 1st phase but not the second as the system had not been commissioned to ensure that it met the required yield of water as per the tender document and contract. It was therefore not entitled to full payment of the contract sum. 27. DW 2, Aaron Mutua an electrical engineer with the Ministry of Water & Sanitation and Irrigation also gave evidence for the appellant. He adopted his witness statement dated 14th December 2022 as his evidence in chief. His evidence was that the Director of Water Services at the ministry was appointed the project manager for the implementation of the project and under the leadership of Engineer S.A.O Alima, the ministry had provided the technical support and advisory as required. He said that he participated in the process of installation of the equipment. 28. DW 2 further gave evidence that the water purification plant installed had been tested but it did not deliver the required 3m3 volume of purified water as per the contract agreement. Consequently, the system had never worked and had never been commissioned. 29. DW 2 further gave evidence that in order to establish the cause of the problem and on recommendation of the project management team a different player in the RO system Davis and Shirtliff was engaged by the appellant to conduct comparative system tests and inspection. The results from both the inspection team and Davis and Shirtliff indicated too high Silt Density Index (SDI levels and that the system required an ultra-filtration pre-tretament system in order to achieve the required SDI levelsbefore feeding to the RO system. The project manager recommended for the same which was treated as a variation of the existing contract. However, the respondent’s quotation for the same was too high and above the lawful contract variation provisions of 25%. The appellant subsequently advertised for the same but the bidders were non-responsive all the time. 30. According to DW 1, the contractor had failed to acknowledge the fact that the RO system itself could be faulty and therefore have the matter resolved amicably by variation of the contract within the 25% that is legally acceptable. For that reason, the contractor failed to complete the project as per the contract. 31. In cross-examination he said that the equipment supplied did not serve the intended purpose. 32. Upon considering the evidence and submissions of parties, the learned trial magistrate found that the respondent had fulfilled its part of the bargain under the contract and it was entitled to payment of the balance of the contract sum. The learned trial magistrate found that installation of an ultra-filtration pre-treatment system became necessary after the reverse osmosis unit had been tested and that was when the challenge of low water yields due to high SDI was discovered. She found the case by the respondent against the appellant proved on a balance of probability and entered judgment for the respondent against the appellant for the sum of KShs 4,447,233/= as the balance of the contract sum together with costs and interest. 33. The appellant was dissatisfied with the decision of the trial court and now appeals to this court against that decision raising eight grounds as follows: https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18311/eng@2025-11-21 5

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a. That the learned magistrate erred in law and in fact when she granted the respondent the contract sum of KShs 4,447,233/= contrary to the tenets of the Public Finance Management Act, that public resources shall only be expended for services rendered. b. That the learned magistrate erred in law and in fact when she awarded the respondent the balance of the contractual sum of KShs 4,447,233/= when the evidence tendered before the court confirmed that the respondent did not meet his contractual obligation under the contract to supply 33metres of water per hour hence unlawfully conferred a financial benefit to the respondent. c. That the learned magistrate grossly erred in law and in fact when she failed to consider that the appellant could only vary the existing contract up to a maximum of 255 of the contract sum, pursuant to the provisions of the Public Procurement and Asset Disposal Act. d. That the learned magistrate grossly erred in law and in fact when she misconstrued and misapprehended the scope of the contract and failed to appreciate that the respondent did not complete the scope of the works as per the tender documents. e. That the learned magistrate grossly erred in law and in fact when she failed to appreciate that the respondent had been engaged as an independent contractor in the special expertise in the field of water purification/reverse osmosis and whose primary mandate was to ensure that the appellant receives clean water within its reticulation system hence misapplied the facts tendered in court. f. That the learned magistrate grossly erred in law and in fact when she failed to consider the appellant’s evidence including the evidence by the second defence witness, the submissions of the appellant, the authorities and the applicable laws thereby arriving at an erroneous decision. g. The learned magistrate has not provided legal and/reasoned justification on the awards made in favour of the respondent. h. The learned magistrate grossly misinterpreted and misapplied the relevant law and the facts and arrived at an erroneous conclusion. 34. The appellant therefore prays that the judgment of the trial court be set aside and the respondent’s suit before the trial court be dismissed and costs of the appeal and the lower court be awarded to the appellant. 35. The appeal was disposed of on the written submissions filed by learned counsels for the parties. 36. Learned counsel for the appellant combined some of the grounds of appeal and argued them together. 37. He argued grounds 1 and 3 together addressing the issue of the appellant not being able to vary the contract sum by more than 25% as the same would be against the provisions of Article 227 of the Constitution of Kenya, section 79 of the Public Finance Management Act (Cap. 412A) Laws of Kenya and sections 44(1) and 139(4)(d) and (e) of the Public Procurement and Asset Disposal Act (Cap. 412C) Laws of Kenya and that it could not pay for works not undertaken as this would be against the provisions of the Public Finance Management Act. The said provisions of the law are follows: Article 227 Constitution: (1) When a State organ or any other public entity contracts for goods or services, it shall do so in accordance with a system that is fair, equitable, transparent, competitive and cost-effective. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18311/eng@2025-11-21 6

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S. 79(1) and (2) PFMA: (1) Every public officer employed in a national government state organ or public entity shall comply with the Constitution and all laws relating to the conduct of public officers when carrying out a responsibility or exercising a power under this Act. (2) Without prejudice to provisions under subsection (1), a public officer employed in a national government state organ or public entity shall— (a) comply with the provisions of this Act so far as they are applicable to the officer; and (b) ensure that the resources within the officer’s area of responsibility are used in a way which— (i) is lawful and authorised; and (ii) is effective, efficient, economical and transparent; S. 44(1) PPDA: An accounting officer of a public entity shall be primarily responsible for ensuring that the public entity complies with the Act. S. 139(4)(d) and (e) PPADA: For the purposes of this section, any variation of a contract shall only be considered if the following are satisfied— (a) … (d) the cumulative value of all contract variations for goods do not result in an increment of the total contract price by more than twenty-five per cent of the original contract price; and (e) the cumulative value of professional services does not result in an increment of the total contract price by more than twenty-five per cent of the original contract price. 38. Learned counsel also argues that the respondent had not performed the contract to deliver 3m3 of clean water and so the appellant could not pay for anything less. 39. The following cases were cited in support of that submission: Republic v Independent Electoral and Boundaries Commission & another Ex Parte Coalition for Reform and Democracy & 2 others [2017] KEHC 8439 (KLR); Republic v Public Procurement Administrative Review Board & Intertek Testing Services (EA) Limited Ex-Parte SGS Kenya Limited [2017] KEHC 9223 (KLR); Independent Electoral and Boundaries Commission (IEBC) v National Super Alliance (NASA) Kenya & 6 others [2017] KECA 436 (KLR); Al Ghurair Printing And Publishing Llc v Coalition For Reforms And Democracy & another; Public Procurement Administrative Review Board (Interested Party) [2017] KECA 565 (KLR) 40. On grounds 2, 4 and 5, learned counsel submits that the respondent was in breach of the contract for failing to deliver the required yield of water of 22,000 litres per day or 3m3 per hour which was the primary obligation stipulated in the contract and therefore that the respondent failed to perform the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18311/eng@2025-11-21 7

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contract because it did not meet all its obligations as provided for under the contract. The cases cited in support of this submission are: Photo Production Ltd Vs. Securicor Transport LTD 1980 1 ALL ER 556; Hydro Water Well (K) Limited v Sechere & 2 others (sued in their representative capacity as the officers of Chae Kenya Society & 2 others (Sued in their representative capacity as the officers of Chae Kenya Society) [2021] KEHC 22 (KLR). 41. Learned counsel submits, citing section 16(1) of the Sale of Goods Act (Cap. 31) Laws of Kenya that the respondent failed to apply its professional skill as represented to the appellant at the time of entering into the contract in order to meet the terms of the contract to supply goods that were fit for purpose. That they had entered into the contract with the presumption that they were possessed of the requisite skills to discharge the same to the appellant’s satisfaction. 42. Section 16(a) of the Sale of Goods Act provides that: Subject to the provisions of this Act and of any Act in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale, except as follows— (a) where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, so as to show that the buyer relies on the seller’s skill or judgment, and the goods are of a description which it is in the course of the seller’s business to supply (whether he be the manufacturer or not), there is an implied condition that the goods shall be reasonably fit for that purpose: Provided that in the case of a contract for the sale of a specified article under its patent or other trade name, there is no implied condition as to its fitness for any particular purpose; 43. Learned counsel cites the case of Hezekiah W Gichobi & 2 others v Travel Creations Limited [2019] KEHC 793 (KLR) where the High Court in determining the applicable law in cases involving an alleged infringement of a professional duty of care held that the law is as set out in Charlesworth & Percy on Negligence, 9th Edition, London, Sweet & Maxwell (1997) at page 535 under paragraph 8-01 which states that; “ Where special skill is required for a task a reasonable man would not be expected to attempt it, unless he is possessed the skill in question. In the event that he undertakes the work, he is bound to exercise the skill and competence of an ordinarily competent practitioner in that calling.” 44. According to learned counsel, as a prudent professional, the respondent ought to have purchased the best quality equipment to achieve the required outcome for the appellant. He submits therefore that the respondent was in breach of its professional duty to the appellant in failing to carry out due diligence as expected of it as a professional. 45. On grounds 6, 7 and 8 learned counsel submits that the learned trial magistrate failed to consider the appellant’s evidence and failed to render a reasoned decision. The appellant relies on the cases of Philip Mururi Ndaruga v Gatemu Housing Co-operative Society Ltd [2016] KEHC 3136 (KLR) and Bwire v Wayo & Sailoki [2022] KEHC 7 (KLR) where the courts emphasized the importance of offering reasons for a decision. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18311/eng@2025-11-21 8

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46. Learned counsel for the respondent on his part made submissions supporting the decision of the trial court. 47. Learned counsel submits the contract the subject of the suit before the trial court was only in one phase and not two phases as contended by the appellant. He submits further that in that respect the ultra-filtration system was not part of the contract. It is the respondent’s position that it successfully discharged the contract as per the terms and so it was to be paid the full contractual sum. 48. Learned counsel submits that the respondent discharged its burden of proof before the trial court to entitle it to the orders made and that the learned trial magistrate properly evaluated the evidence presented and applied the law and arrived at the correct decision. 49. This being a first appeal, the duty of the court is to consider, re-evaluate, re-analyze the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. See for example Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 and Peters vs. Sunday Post Limited (1968) EA 123. (1956) E.A page 424. 50. I have considered the case by each of the parties before the trial court including the pleadings, the evidence tendered and the submissions by learned counsels. I have also reviewed the judgment of the trial court, considered the grounds of appeal herein and the submissions by learned counsels. The point for determination is whether, in allowing the respondent’s case against the appellant, the learned trial magistrate made a correct finding on the facts and the law presented to her. In Wareham t/a A.F. Wareham & 2 Others Kenya Post Office Savings Bank [2004] 2 KLR 91, the Court of Appeal stated in this regard that: “ We have carefully considered the judgment of the superior court, the grounds of appeal raised against it and the submissions before us on those matters. Having done so we are impelled to state unequivocally that in our adversarial system of litigation, cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or Court on the basis of those pleadings pursuant to the provisions of Order XIV of the Civil Procedure Rules. And the burden of proof is on the Plaintiff and the degree thereof is on a balance of probabilities. In discharging that burden, the only evidence to be adduced is evidence of existence or non-existence of the facts in issue or facts relevant to the issue. It follows from those principles that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail.” 51. An appellate court will not ordinarily interfere with a finding of fact made by a trial court unless such finding was based on no evidence, or it is demonstrated that the court below acted on wrong principles in arriving at the finding it did. See Ephantus Mwangi & Another vs Duncan Mwangi Wambugu [1982 – 1988] 1KAR 278). 52. The appellant submits in its introductory paragraphs 3 and 4 that: a. It is not in dispute that the respondent tendered for the services of installation and commissioning of a reverse osmosis unit at its premises with a resultant output of 22,000 litres of water per day at 3m3 of water. Consequently, the appellant entered into a contractual relationship with the respondent. b. It is also not in dispute that the respondent supplied and installed a reverse-osmosis unit at the appellant’s premises. However, the unit installed by the respondent did not meet the requirement of the contract, that is reverse osmosis unit with a yield of 3m3 of water that the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18311/eng@2025-11-21 9

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appellant could deem the works duly commissioned and ready for handover. To date the site has never been commissioned nor handed over by the respondent. 53. According to the appellant, in accordance with the Public Finance Management Act as read with together with the Public Procurement and Asset Disposal Act, the appellant could not pay for incomplete works. 54. It is my finding that in resorting to the provisions of the Public Finance Management Act Cap. 412A) Laws of Kenya (PFMA) and the Public Procurement and Asset Disposal Act (Cap 412C) Laws of Kenya (PPADA) on prudent use of public resources and fairness in the procurement process beforehand, the appellant misapprehended the issue at hand. The issue to be addressed was not whether the contract was to be varied or extended by a particular amount of money so as to comply with section 139 of the PPADA but whether the respondent had performed and fulfilled its obligations under the contract. All the decisions cited by the appellant in support of its case arguing on the lines of compliance or not wit the PFMA and PPADA are therefore not of assistance here. 55. So that when the appellant submits that in the interest of fairness, the appellant in good faith approached the respondent to supply the ultra-filtration machine through variation of contract sum by KShs 1,500,000/= that was in line with the market value of the ultra-filtration unit what is the implication? 56. It was the respondent’s case that it fulfilled its part of the bargain. The appellant maintains that the unit installed by the respondent was incapable of yielding the volume of water as provided for under the contract. The respondent readily conceded to that issue and offered an explanation 57. First, the appellant had to ask itself whether ultra-filtration of the water before feeding into the RO system was part of the contract. There are various reports that explained this aspect. 58. First was the scope of works contained in the Agreement for Supply, Delivery & Installation of Water Purification/Reverse Osmosis Unit between the Teachers Service Commission and Aquachem Technologies Ltd Section 3 which provided that the scope of work as; a. Installation of 1 No. unit – Water purification/Reverse osmosis unit to accommodate purification of 22,000 litres per day (3m3/hr). b. Construction of plinth for the installation of water purification/reverse osmosis unit. c. Installation and interconnection of GI pipes between the water purification/reverse osmosis unit and the basement tank to facilitate use of the same in the existing reticulation system. d. Maintenance of the system for a period of Ninety (90) days. 59. This scope of work does not contain a provision for an ultra-filtration system. The appellant nowhere argued that in fact it did. Its argument is that the respondent ought to have applied its professional skill to know that in fact it was required. 60. In fact, the respondent was the first to address the issue in its report dated 3rd December 2018 where it outlined the issue indicating that the Silt Density Index (SDI) of the appellant’s raw borehole water was very high beyond the maximum allowable levels for feeding to RO system. It observed that the SDI levels for the water cannot be controlled by specified cartridge filters and sand carbon filters (emphasis mine). It went ahead to outline some mitigating measures it had undertaken to address the issue but without much success. It then made recommendations on how the issue could be addressed which was by inter alia provision of ultrafiltration system that was not factored in the tender specifications. (emphasis mine). https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18311/eng@2025-11-21 10

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61. The respondent had earlier obtained a report dated 30th August 2018 of laboratory analysis of water sample No. 0477 (there was an earlier one No. 0476) from TSC Borehole Upper Hill Treated Water after RO System from the Water Resources Authority which indicated that the water was chemically suitable for domestic use. 62. The issue then became, if the specified cartridge filters and sand carbon filters could not achieve the intended volume of water supply and the ultra-filtration system was not factored in the tender specifications, how could the issue be addressed? 63. Successive reports from other entities specialized in that area namely the technical team from the Ministry of Water, Sanitation and Irrigation and Davis and Shirtliff supported the respondent’s findings and recommendations. The first report was from Engineer SAO Alima of the Ministry of Water and Sanitation, who the appellant said were the technical team with the necessary expertise and in the project and acted as the project manager. 64. In his letter to the Secretary/CEO of the Commission dated 11th March 2019, which was produced by the appellant as an exhibit, he stated that the project management committee had on 8th February 2019 carried out a detailed inspection/tests on the entire Reverse Osmosis (RO) system installed by the respondent in order to establish the cause of the problem whereby the system was giving too low yields of water and experienced serious clogging of the membranes. The exercise was carried out by specialists from the Ministry of Water and Sanitation, representatives of the contractor and in attendance were TSC technical staff. The results indicated high SDI levels among other observations. He noted that SDI is not a standard parameter in water quality analysis so cannot be established during project inception stage. This report therefore supported the respondent’s earlier observations on the cause of low water yields and more importantly that it could not have been envisaged either by the Commission at the project inception stage meaning it could not have been included as part of the scope of the works to be undertaken by the contractor. 65. In his first letter dated 15th April 2019, he indicated that the respondent was adamant that what it wanted carried out on the system it had installed first was the SDI test. Engineer Alima recommended that a comprehensive audit of the works be done. This was carried out on 14th May 2019 and in his report dated 21st May 2019 he indicated that the respondent had completed the project successfully as per the contract document and Engineer’s Valuation report. He reiterated what he had said earlier that SDI is a rare phenomenon and is not a standard Water Quality tests parameter and therefore cannot be factored in during project inception stage, rather it is considered a variation whenever it occurs. Further, he recommended that interim payment of KShs 5,771,260/= be made to the contractor as per the Engineer’s payment certificate and Engineer’s Valuation report. 66. This once again was the report of the appellant’s own technical manager for the project. 67. The other report was from Davis & Shirtliff dated 17th April 2019 whose recommendations were inter alia that from the SDI TEST results conducted, it shows high levels of silt in the feed water this then increases silt based fouling of the membrane. 68. The appellant now faults the learned trial magistrate for giving weight to that report yet this was the appellant’s own technical officer making a report of the project execution by the respondent. 69. It is the appellant’s contention that the respondent declined to supply, deliver and install the proposed ultra-filtration unit within the 25% lawful variation. However, from its own evidence of other entities in the water sector, the amount provided was way below what the market price for the system was. In that case the appellant could not sit there blaming the respondent for failing to incur a cost that https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18311/eng@2025-11-21 11

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it was not going to get paid for by the appellant. None of the other entities who had been sought for were able to install the ultrafiltration unit at the cost proposed by the appellant and the project remains incomplete todate. 70. Interestingly, the appellant failed to make available Engineer SAO Alima, from the Ministry of Water, Sanitation and Irrigation, its own technical project management team leader to support its case in any way. Yet he was the one who prepared all the reports indicating that the appellant had successfully completed the project as per the contract specifications and should be paid for the same. It can only be presumed that if he had been called, he would have given evidence that would be averse to the appellant’s case. 71. The allegation that there was collusion between the said Burt and the respondent was not supported by any evidence at all and the learned trial magistrate was correct not to believe it. 72. Therefore, the submission by the appellant that the learned trial magistrate erred when she by placing undue reliance on the letter dated 21st May 2019 authored by Engineer SAO Alima and found that the respondent had completed performance of the contract, has no basis at all. There was only one project and the contention by the appellant that the project was in two phases is a creation of the statement of defence but not the terms of the contract as outlined in the scope above. Consequently, the failure to install the ultra-filtration unit could not be blamed upon the respondent because it was not within the scope of the contract. 73. Sir Charles Newbold P in Damondar Jihabhai and Co Ltd and another v. Eustace Sisal Estates Ltd [1967] EA 153 emphasised that the function of courts is to enforce and give effect to the intention of the parties as expressed in their agreement. Neither the trial court nor this court can force into the contract between the parties the installation of the ultra-filtration system when it was not there in the first place. 74. Further in the case of National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & another [2001] KECA 362 (KLR) it was held that, “A Court of law cannot re-write a contract between the parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded and proved.” And this was reiterated in the case of Pius Kimaiyo Langat v Co-operative Bank of Kenya Limited [2017] KECA 152 (KLR) that: “ … it is not the business of courts to rewrite contracts between parties. They are bound by the terms of their contracts, unless coercion, fraud or undue influence are pleaded and proved.” 75. The allegation that the respondent failed to exercise professional diligence in the discharge of the contract is not correct. There is no report from any expert in the field that this was the position and the evidence of DW 2 that “the RO system itself could also be faulty” was only speculative and therefore lacked probative value. 76. Further, the submission that the respondent’s case was not supported by evidence is not correct at all. The respondent produced evidence through PW 1 and the letters from the Ministry of Water, Sanitation and Irrigation showing that the project managers provided by the appellant had confirmed that it had executed and discharged the contract as signed by itself and the appellant. There was no dispute at all about the completeness of that report. 77. I am satisfied and find that the learned trial magistrate thoroughly analysed the evidence presented before her and correctly applied the law. The charge that she misapprehended the facts and misapplied the law is therefore not correct. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18311/eng@2025-11-21 12

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78. In totality, I find that the appellant breached the terms of the contract by failing to make the payments due to the respondent. 79. I am satisfied that the trial court properly considered all the evidence adduced before it in arriving at its judgment. The said judgment contains the issues for determination, the findings and the reasons for the same. It is therefore not correct as charged that it had no reasons for the findings. 80. I therefore find that the learned trial magistrate was correct in her findings and conclusion that the respondent had proved its case on a balance of probability and proceeded to allow the claim to the extent that she did. 81. Consequently, I find the appeal to be without merit and dismiss the same. The judgment of the trial court allowing the respondent’s claim is hereby affirmed. 82. The respondent gets the costs of the appeal. DATED, SIGNED AND DELIVERED ON THE VIRTUAL PLATFORM TEAMS THIS 21ST DAY OF NOVEMBER, 2025. ANDAYI W. F. JUDGE In the presence of: Mulaku for the Appellant. Gikaria for the Respondent. Ummu h/b for Amina: Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18311/eng@2025-11-21 13

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