Afforadable Computer Services Kenya Limited v Rural Electrification & Renewal Energy Corporation & 1 other

NORM/B/PBG/BSACL/5700-25 dated 8/10/25 for Kshs 2,355,721.07 issued by the 2nd Respondent pending hearing and determination of the instant application as prayed under prayer (b) of the Application; (b) From taking any steps towards the re- advertisement, award or execution of a new contract for tender reference No. 1000001369 for the supply and delivery of Laptop and Desktop Computers as prayed under prayer (c) of the Application; (c) Interfering, in any way, with the Applicant’s right and opportunity to perform its obligations under the contract dated 5/11/2025 as prayed under prayer (d) of the Application; (d) An order directing that the Applicant be granted an opportunity to fully perform its obligations under the contract dated 5/11/2025 with time for performance extended to a date not earlier than 6/4/2026 being the validity period of the performance bond intended to secure such performance; and, (e) Costs of the application. 2. The application is supported by grounds stated on the body of it and in the Supporting Affidavit sworn by Patrick 2 | Ruling in Civil Misc. Application No. E061 of 2026

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Wilfred Muigai, who has described himself as the Director of the Applicant, on 26/1/2026. 3. In sum, the Applicant has stated that there is a valid contract subsisting between it and the 1 st Respondent and that a valid dispute has arisen between them regarding the termination of the said contract and the 1 st Respondent’s subsequent actions. 4. The Applicant claims to have demonstrated a prima facie case with a high probability of success, with triable issues including wrongful termination, unreasonable refusal to grant an extension of time and improper attempt to recall the performance bond. It is claimed that the Applicant will suffer irreparable harm in that the loss of Kshs 2,355,721.07 will cripple its business, which loss cannot be adequately compensated by an award of damages, if the performance bond is recalled. That the 1st Respondent’s threat to readvertise the tender would irrevocably destroy the subject matter of the suit and render any judgment in the Applicant’s favour nugatory. 3 | Ruling in Civil Misc. Application No. E061 of 2026

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5. The Applicant has claimed that the balance of convenience tilts in its favour in that the orders sought in this application are meant to preserve the status quo and secure the subject matter and that the 1st Respondent will suffer no prejudice as there is security in the form of the performance bond which remains intact. 6. In the Supporting Affidavit, it is deposed that the Applicant was the successful bidder for tender reference No. 1000001369 for the supply and delivery of laptop and desktop computers to the 1st Respondent to which a formal contract was executed by both parties on 5/11/2025; that under Clause 18 of the said contract, the Applicant furnished a performance bond No. NORM/B/PBG/BSACL/5700-25 from the 2nd Respondent for Kshs 2,355,721.07 which is valid until 6/4/2026, which bond was intended as security for the due performance of the contract and not as a penalty. 7. It is deposed that the Applicant encountered unforeseen and severe financial difficulties beyond its control after execution of the contract, which made it difficult to mobilize 4 | Ruling in Civil Misc. Application No. E061 of 2026

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the full contract sum for procurement of all 147 units of computers within the strict period of two months; that these difficulties were explained to the 1 st Respondent and a structured partial delivery plan of the laptops was proposed and a request made for a reasonable extension of time to facilitate full performance, but the 1 st Respondent did not accept the plan but instead issued a letter of termination despite there being a dispute resolution mechanism under Clause 10.1 of the contract and threated to recall the performance bond and re-advertise the tender. 8. The Applicant terms the termination as wrongful, premature and unreasonable because it failed to consider the Applicant’s genuine cause for the delay and the reasonable proposal for mitigation; ignored its own obligation to act in good faith and extend time and variations contemplated under Clauses 33 and 34 of the general conditions of the contract and acted precipitously to call the performance bond which is a security instrument. The Replying Affidavit 5 | Ruling in Civil Misc. Application No. E061 of 2026

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9. The Application is opposed by the 1 st Respondent through the Replying Affidavit of Alex Kang’ethe, who has described himself as the Manager ICT at the 1 st Respondent. The 1st Respondent has stated that following a legal procurement process, the Applicant was successfully awarded the tender for the supply of laptop and desktop computers to the 1 st Respondent. Subsequently, the parties entered into a contract on 6/11/2025 after the Applicant furnished the 1 st Respondent with a Performance Bond for Kshs 2,355,721.07 which is valid until 6/4/2026. 10. The Respondent has stated that under clause 6(a) of that contract, the contract would expire two months from the date it was signed and that the Applicant was required to deliver the goods to the 1st Respondent not later than two months from the date of the contract, which clause was not complied with. 11. It is further stated that the Applicant experienced financial difficulties that led to non-delivery of the goods as per the contract and offered partial delivery of the goods which the contract did not allow and that the contract 6 | Ruling in Civil Misc. Application No. E061 of 2026

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lapsed on 6/1/2026 by which time no goods had been delivered by the Applicant. 12. The Respondent stated that the allegations by the Applicant that there was wrongful termination of the contract by the 1st Respondent are unfounded; that on 9/1/2026, the Applicant informed the 1st Respondent that they had not secured any solution to their financial constraints and that the 1st Respondent intends to recall the Performance Bond in accordance with the terms of the contract under Clause 18.2 of the General Conditions which provides that the proceeds of the Performance security shall be payable to the procuring entity as compensation for any loss resulting from the Supplier’s failure to complete its obligations under the contract. 13. The 1st Respondent has stated that the Applicant stands to suffer no prejudice and that it is the 1 st Respondent who stands to suffer loss as it urgently required the ICT equipment to continue discharging its mandate. The 1st Respondent has maintained that it acted reasonably, 7 | Ruling in Civil Misc. Application No. E061 of 2026

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transparently and in good faith at all material times and urged that this application be dismissed. 14. The Applicant filed a Further Affidavit dated 13/2/2026 in which it is deposed that the 1 st Respondent told the court on 5/2/2026, when this application was pending hearing inter partes, that the performance bond had been recalled and the tender re-advertised in a move calculated to mislead the Court into believing that the substratum of the Applicant’s application had been overtaken by events to dissuade the court from granting interim orders of preservation that the Applicant had sought. 15. It is deposed, further, that the Applicant has conducted a search on the 1st Respondent’s website, the Public Procurement Information Portal and in any mainstream newspaper but that as at 13/2/2026 there was no trace of any advertisement for the cancelled or terminated tender that was previously awarded to the Applicant; that the 1 st Respondent’s statement of any such advertisement was made in bad faith and was meant to mislead the court; that by issuing an LPO on 28/2/2026, the 1st Respondent 8 | Ruling in Civil Misc. Application No. E061 of 2026

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suspended the general timeline in the main contract and the date of the LPO became the delivery date agreed upon by the parties. 16. The Applicant deposed that the 1st Respondent has not demonstrated any actual loss suffered as a result of the alleged non-delivery of the computers by 6/1/2026; that the performance bond of Kshs 2,355,721.07 is security against a proven, quantifiable loss not a penal sum to be forfeited at the whim of a contracting entity and that to allow its recall where no loss has been demonstrated, where a valid LPO existed, where no notice of default was given and where the 1st Respondent has acted in bad faith, would be to sanction an unjust enrichment of a public body at the expense of the Applicant. Submissions 17. In their brief oral submissions, parties reiterated their positions as deposed in their Affidavits supporting or opposing the Application. The Applicant maintained that the LPO issued by the 1st Respondent is a legal document authorizing purchase and delivery of goods; that according 9 | Ruling in Civil Misc. Application No. E061 of 2026

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to the LPO issued, the delivery date changed to 28/2/2026 and that the Performance Bond is valid up to 6/4/2026. It maintained that the contract and performance is self executing and that all the Applicant is asking is the opportunity to perform its obligation within the framework agreed upon by the parties. 18. On the other hand, the 1st Respondent has maintained that the Applicant has not demonstrated a prima facie case; that the prayers sought have been overtaken by events, the contract having lapsed on 6/1/2026 and that the instant application was filed 10 days after the bond had been recalled. 19. The 1st Respondent submitted that the initial advertisement was done under My Gav Newspaper which is a Government entity and that the Applicant cannot claim that it was not aware. 20. In a rejoinder, the Applicant submitted that it has demonstrated a prima facie case and irreparable damage in that the computers procured were suitable for this contract and cannot be sold elsewhere; that there is no evidence 10 | R u l i n g i n C i v i l M i s c . A p p l i c a t i o n N o . E 0 6 1 o f 2026

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provided as to when the recalling process was initiated and that in the Replying Affidavit, it is deposed that the 1 st Respondent has not stated that the recalling process is complete but that they intent to recall and therefore the process of recalling is not complete. The Applicant submitted that they are not seeking damages and that after the expiry of performance bond, there will be no need to return to court. Analysis and Determination 21. I have carefully considered the Application and the grounds supporting it. I have considered the Replying Affidavit and the Further Affidavit in opposition to the Application and the submissions of parties. I find no dispute that following a legal procurement process, the Applicant was successfully awarded the tender for the supply of laptop and desktop computers to the 1 st Respondent and that the parties entered into a contract on 6/11/2025 upon the Applicant furnishing the 1 st Respondent with a Performance Bond for Kshs 2,355,721.07 which is valid until 6/4/2026. 11 | R u l i n g i n C i v i l M i s c . A p p l i c a t i o n N o . E 0 6 1 o f 2026

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22. I also find no dispute that the Applicant did not honour the terms of the said contract for reasons that the Applicant fell into financial difficulties and was unable to supply the goods as agreed. 23. There is however a dispute arising from the failure on the part of the Applicant. The request by the Applicant to be allowed by the 1st Respondent to partially supply the goods was declined by the 1st Respondent. It is also not clear whether the bond has been recalled or not. This issue required sufficient evidence to resolve, which evidence was lacking at this interlocutory stage. 24. There is also a dispute as to whether the applicable delivery date has been extended by virtue of the issuance of the LPO, as claimed by the applicant. 25. To my mind, two pertinent issues have arisen in this Application that require by intervention, which, once determined, will dispose of this matter, namely that: (a) Whether the instant Application is competently before the Court? 12 | R u l i n g i n C i v i l M i s c . A p p l i c a t i o n N o . E 0 6 1 o f 2026

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(b) Whether this Courts should interfere with the contract entered into by the parties herein and extend the timelines allowing the Applicant to comply with the contract? 26. The Applicant is seeking an order directing that it be granted an opportunity to fully perform its obligations under the contract agreement dated 5/11/2025 (the Agreement) with the time for performance extended to a date not earlier than 6/04/2026, being the validity period for the performance bond which was intended to secure such performance. 27. I have noted that the Application is also seeks three orders for injunctions under Order 40 of the Civil Procedure Rules (CPR). I have considered the grounds relied on and the arguments in support of those grounds. In sum, the Applicant has argued that it has a prima facie case and that if the prayers sought are not granted, it stands to suffer grave prejudice and harm by way of threat to the financial and operational functions of its business. It is also argued that the subject matter of the suit will be destroyed and that 13 | R u l i n g i n C i v i l M i s c . A p p l i c a t i o n N o . E 0 6 1 o f 2026

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no court order or arbitral award will adequately restore the Applicant to its original financial and operational position. 28. There is no substantive suit filed in this matter as there is no Plaint available, even in the CTS platform. This leads me to the conclusion that there is no existing suit in relation to this matter. Indeed, the Applicant, through its legal counsel, told the court that this isn’t a main suit but an application because after expiry of the performance bond, there will be no need to return to court. 29. This raises the issue whether the Applicant can seek injunctive prayers or other substantive orders by way of a miscellaneous application, in the absence of substantive pleadings by way of a Plaint. 30. The legal position on this issue is settled. Under Order 3, Rule 1 of the CPR, a suit shall be instituted by way of a plaint or in any other manner prescribed. Section 19 of the Civil Procedure Act (CPA) provides that: “Every suit shall be instituted in such manner as may prescribed by rules.” 14 | R u l i n g i n C i v i l M i s c . A p p l i c a t i o n N o . E 0 6 1 o f 2026 be

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31. Having already established that the instant Application is anchored on, inter alia, Order 40 of the CPR, it follows that injunctive orders, whether sought at the interim stage or as temporary or interlocutory prayer, ought to be anchored on a suit. Prayers of such nature as well as any other substantive prayers, cannot be considered and granted in a vacuum. This position was clearly stated in the case of SM v MNM [2025] KEHC 12052 (KLR) when it held thus: “There is ample case law that an injunction cannot issue in a vacuum when there is no suit before the court – see the authorities cited above - Mbugua & another v Mbugua & 4 others, Chacha & another v Orbit Chemicals Industries Limited and Geofrey Ndungu Theuri v Law Society of Kenya [1988] KECA 81 [KLR]. They all point to the fact that an application for injunction filed without a substantive suit is incompetent. The same position was taken in the case of Swanya Limited & 2 others v Homebay Property Limited [2021] eKLR where an application for injunction was filed without a substantive suit and the court stated that: 15 | R u l i n g i n C i v i l M i s c . A p p l i c a t i o n N o . E 0 6 1 o f 2026

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…..in the absence of a Substantive suit, the subject Application, was mounted in vacuum. Same was incapable therefore of legally attracting untenable Orders of and Temporary Injunction.” 32. Further, in arriving at a similar finding, the court in Kabaka & 3 others v Ngigi & 2 others [2026] KEELC 921 (KLR) pronounced itself as follows: “...interlocutory or final reliefs cannot issue in isolation, divorced from the procedural foundation of a substantive suit. Even compelling evidence of ownership cannot supply the procedural legitimacy required to sustain such an application. The law is unequivocal: an injunction, whether temporary or permanent, must be anchored in a substantive cause of action or suit, and any attempt to circumvent this requirement renders the application legally tenuous. ... The Application has been brought as a miscellaneous cause, yet it seeks reliefs of a substantive eviction, and final declarations, character, and a including permanent injunction. There is no extant suit pending before 16 | R u l i n g i n C i v i l M i s c . A p p l i c a t i o n N o . E 0 6 1 o f 2026

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the Court to which these reliefs can properly attach.” 33. Flowing from the above-cited authorities and the legal principle on form and procedure, I find that in the absence of an existing suit upon which the instant application is anchored, it is my considered view that the instant application is defective for want of procedure and therefore incompetent and cannot be sustained. 34. The second issue is whether this court can interfere with a contractual agreement entered into between the parties in the manner sought by the Applicant. In the present application, the Applicant seeks a substantive prayer for an extension of time to enable it comply with its contractual obligations under the Agreement. 35. This leads to the questions whether this court has the power to extend the contractual timelines for compliance, as sought herein. The long-standing legal principle on this issue is that a court cannot rewrite a contract entered into between parties, and that parties are naturally bound by the terms of their contractual arrangements. Such was the 17 | R u l i n g i n C i v i l M i s c . A p p l i c a t i o n N o . E 0 6 1 o f 2026

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position held by the Court of Appeal in National Bank of Kenya Ltd v Pipe Plastic Samkolit (K) Ltd [2002] 2 E.A. 503, [2011] eKLR thus: “A court of law cannot rewrite 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.” 36. In view of the above, it is my finding that the Applicant cannot call upon this court to alter the terms of the Agreement in the manner sought or at all. In the circumstances, the prayer for an extension of time to enable the Applicant to comply with its contractual obligations cannot issue. 37. Consequently, the Notice of Motion dated 26/01/2026 is found to be incompetent and incurably defective. It is hereby dismissed with costs to the 1st Respondent. 38. Orders shall issue accordingly. Dated, signed and delivered this 31st day of March 2026. S. N. MUTUKU 18 | R u l i n g i n C i v i l M i s c . A p p l i c a t i o n N o . E 0 6 1 o f 2026

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JUDGE In the presence of: 1. Mr. Omomdi for Mr. Ikua for the Applicant 2. Ms Odhiambo for the 1st Respondent 3. N/A for the 2nd Respondent 19 | R u l i n g i n C i v i l M i s c . A p p l i c a t i o n N o . E 0 6 1 o f 2026

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