Odwodi t/a Kamisafe Enterprises v Board of Management Chwele Girls High School (Civil Suit E030 of 2025) [2026] KEMC 644 (KLR)

April 2021, 01st May 2021, 06th May 2021, 10th May 2021, 12th May 2021, and 21st May 2021. The Plaintiff added that on diverse dates in 2021, they also made cash credit sales of Kshs. 85,000/= to the school. 4. The Plaintiff added that despite raising invoices for Kshs. 1,968,730/= arising from the transactions above owed to her, the Defendants have failed to act, hence necessitating this suit. 5. The Defendants entered appearance and filed a Statement of Defence dated 03rd February 2025 denying contracting the Plaintiff to supply the school with the alleged assorted goods. They also disputed the Plaintiff’s assertion that they supplied the school with the assorted goods listed in the delivery notes and LPOs filed by the Plaintiff. They denied owing the Plaintiff Kshs. 1,968,730/=. 6. In the alternative, the Defendants pleaded that if the school contracted the Plaintiff to supply the assorted goods, such a contract was in contravention of the Public Procurement and Asset Disposal Act (“the Act”). The Defendants took the position that there was no contract between the Plaintiff and the school. 7. It is for the reasons above that the Defendants urged this court to dismiss this suit with costs. 8. Given the divergent positions taken by the parties herein regarding this matter, this case was set down for hearing for the parties herein to prove the averments in their respective pleadings on a balance of probabilities. EVIDENCE 9. On 26th February 2026, when this matter came up for hearing, the Plaintiff’s counsel conceded that this court had distilled the issues for determination in this suit through its ruling delivered on 15 th May 2025. It is against this backdrop that the Plaintiff’s counsel proposed that this matter be canvassed by way of written submissions. 10. Consequently, on 26th March 2026, the parties herein recorded a consent to the effect that this matter be canvassed by way of written

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submissions. This court adopted the said consent as an order of the court and gave directions on the filing and service of written submissions. 11. The Plaintiff filed their written submissions as directed by this court. However, the Defendants did not file their written submissions. ANALYSIS AND DETERMINATION 12. The parties’ pleadings, witness statements, documents, and written submissions, on record as well as the authorities relied upon by the parties herein, have been duly considered by this court. 13. The issues for determination as agreed between the parties herein are: a. Whether the contract(s) herein complied with the provisions of the Act. b. If the answer in (a) above is negative, whether a contract entered into by a public body in contravention of the Act is enforceable c. Whether the school’s principal’s admission of the school’s indebtedness to the Plaintiff through the letter dated 22 nd October 2024 breathed life into an illegal contract d. Whether the Plaintiff/Applicant who craves the aid of equity in realizing the alleged debt of Kshs. 1,810,000/= has approached the seat of equity with clean hands Whether the contract(s) herein complied with the provisions of the Act. 14. The Plaintiff’s case is that on diverse dates in 2021, he entered into a contract for the supply of assorted goods listed in the LPOs, invoices, and delivery notes on record to the school. 15. The Defendants, on the other hand, maintained that they never contracted the Plaintiff to supply the said goods and that if the Plaintiff entered into a contract for the supply of the assorted goods with the

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school, then the said contract was unenforceable for being in contravention of the Act. 16. In a case of this nature, the burden of proof is on the Plaintiff to prove their case on a balance of probabilities. This is the law as explicitly stated in Section 107 of the Evidence Act in the following terms: (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.” 17. Likewise, Section 108 of the Evidence Act provides that: The onus of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. 18. It is in reverence to the provisions of the law above that the Court of Appeal in Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, held: “ …As a general proposition under section 107(1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is cast upon any party the burden of proving any particular fact which he desires the Court to believe in its existence which is captured in sections 109 and 112 of the Act...” 19. The authorities above show that the Plaintiff bears the burden of proving on a balance of probabilities that the school contracted them to supply the school with the assorted goods per the law. 20. The LPOs, the invoices, and the delivery notes produced by the Plaintiff were not impeached by the Defendants. The said documents proved on a balance of probabilities that the Plaintiff supplied the school with the assorted goods listed in the said documents.

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21. The Defendants, on the other hand, disputed the existence of such a contract and the delivery of the assorted goods to the school. The Defendants stated in the alternative that if the Plaintiff supplied any goods to the schools, then such a contract was unenforceable for non-compliance with the Act. 22. The Defendants’ position that the school never contracted the Plaintiff to supply the assorted goods placed the burden of proof and the evidential burden on the Plaintiff to prove on a balance of probabilities that the school contracted them to supply the assorted goods per the law. 23. It is common ground that the school is a public entity. Supply of goods and services to a public body/entity is governed by Article 227(1) of the Constitution, which obligates state organs and public entities to procure goods and services through a system that is fair, equitable, transparent, competitive, and cost-effective. 24. to order 2 rule 4(1) of the Civil Procedure Rules. The same provides as hereunder: -“4. Matters which must be specifically pleaded(1)A party shall in any pleading subsequent to a plaint plead specifically any matter, for example performance, release, payment, fraud, inevitable accident, act of God, any relevant Statute of limitation or any fact showing illegality—(a)which he alleges makes any claim or defence of the opposite party not maintainable;(b)which, if not specifically pleaded, might take the opposite party by surprise; or (c) which raises issues of fact not arising out of the preceding pleading. Magare J in Muthusi v NIC Bank Limited (Civil Appeal E086 of 2022) [2024] KEHC 17085 (KLR) “35.Parties must plead first before they prove. In other words, Pleadings must be followed by evidence and not the other way round. Evidence that is not supported by pleadings is otiose and is of no use to the parties and the court. In

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the case of Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] eKLR, A C Mrima stated as follows: -“11.It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must be in consonance with the pleadings. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded. That settled position was re-affirmed by the Court of Appeal in the case of Independent Electoral and Boundaries Commission & Ano. vs. Stephen Mutinda Mule & 3 others (2014) eKLR which cited with approval the decision of the Supreme Court of Nigeria in Adetoun Oladeji (NIG) vs. Nigeria Breweries PLC SC 91/2002 where Adereji, JSC expressed himself thus on the importance and place of pleadings: -“…..it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded………In fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation.” 36.The Supreme Court of Kenya in its ruling on inter alia scrutiny in the case of Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR found and held as follows in respect to the essence of pleadings in an election petition: -“In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings…...’” 37.The court cannot act on evidence, even where it is established, in the absence of pleadings. In the recent presidential Election Petition, the Court of Appeal of Nigeria sitting as the election court, in Peter Gregory Obi & another versus Senator Bola Ahmed Tinubu &INEC & 3 others consolidated with petitions no. 4 and 5 both of 2023, stated as follows: -“In Belgore Versus Ahmed (2013) 8 Nwlr (Pt.1355) 60 the complaint against averments in the petition that were unspecific, generic, speculative, vague, unreferable(sic), omnibus and general in terms. The Apex court specifically held as follows: -“Pleadings in an action are written statements of the parties wherein they set forth the summary of material facts on which they rely on in proof of this claim or his defence as the case may be, and by means of which real matters [in] controversy between the parties are to be adjudicated are pleaded in a summary form. They must

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nevertheless be sufficiently specific and comprehensive to elicit the necessary answers from the opponent. 38.I do not find any basis laid for any of the prayers sought. The prayers are at variance with the evidence tendered. It is not possible to grant the orders sought in absence of specific breach of contract.” Finds that there is a valid and enforceable contract for the supply of deckers, lockers, and chairs between the Plaintiff and the Defendant How much is owed to the Plaintiff…… 25. Signed vouchers….the evidential burden shifted to the Plaintiff to prove on a balance of probabilities that he did not sign those vouchers confirming that the Defendant only owed him Kshs. 230,000/= being the balance for the sum of Kshs. 450,000/= for the supply of the deckers, and had cleared the sum of Kshs. 625,000/= for the supply of the lockers and desks… 26. In in Abdi Ali Dere v Firoz Hussein Tundal & 2 Others (2013) eKLR, the Court of Appeal held that it is not correct to assert that a payment voucher cannot be evidence of payment:“In our opinion it is not correct to say, as the trial court did, that in all and sundry cases a payment voucher cannot be evidence of payment. The term “voucher” derives from the word “vouch”, meaning “to confirm or assure”. The term “voucher”, in regard to payment, has at least two distinct meanings. It can mean a written authorization to pay or disburse money. It can also mean confirmation of payment. In the latter sense, a payment voucher is not any different from a receipt. In many daily and official transactions, payees do not walk around with receipts to issue in acknowledgement of payment. They merely counter sign the payment voucher to signify payment.This is particularly the case where the payees are casual workers engage to undertake short term assignments. In the present appeal, some of the payment vouchers that the court rejected related to payment to watchmen and other providers of labour hired after the accident.” 27. Independent Electoral and Boundaries Commission & another v Mule & 3 others (Civil Appeal 219 of 2013) [2014]

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KECA 890 (KLR) and Odinga & another v Independent Electoral and Boundaries Commission & 2 others (Election Petition 1 of 2017) [2017] KESC 31 (KLR), asserting that parties are bound by their pleadings and the court cannot frame issues outside of them; and Moi v Muriithi & another (Civil Appeal 240 of 2011) [2014] KECA 642 (KLR), where the court held that legal submissions do not contended that by constitute relying on evidence. The submissions appellant rather than evidence, the trial judge gravely misdirected herself. 28. Miguna v Kipchumba (Civil Suit E174 of 2024) [2026] KEHC 1035 (KLR) (Civ) 23.It is trite that each party is bound by his pleadings and that submissions do not constitute evidence. Hence a party cannot be heard to raise new issues or arguments by way of his or her submissions. This position was succinctly stated by the Court of Appeal in the case of Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another [2014] eKLR when it held that:“Submissions cannot take the place of evidence… Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all.” 29. In sum, 30. The above constitutional imperative finds a statutory backing under the Public Procurement and Assets Disposal Act (“the Act”). To buttress this position, this court draws inspiration from the holding in Noa Investment Limited v County Government of Nyamira [2021] eKLR and Royal Media Services v Independent Electoral & Boundaries Commission & 3 others [2019] eKLR. 31. The Plaintiff placed before this court LPOs, invoices, and delivery notes to prove that they lawfully supplied the assorted goods to the school. 32. Supply of goods to a public entity is a process, not an event. Therefore, the mere production of LPOs, delivery notes, and invoices is

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not sufficient proof that a public entity contracted a party to supply goods. A party relying on such documents to prove the existence of a contract between them and a public entity is also obligated to prove that there was a tendering process in compliance with the Act, which gave rise to the LPOs, delivery notes, and invoices a party seeks to rely on. 33. This position taken by this court is buttressed by the holding in the Noa Investment Limited case (supra), where the court held that mere proof of supply and receipt of goods does not prove a valid contract on the face of section 51 of the Public Procurement and Asset Disposal Act. 34. The tendering process by a public entity begins with a tender notice/advert inviting bids for a tender, followed by bidding letters/duly filled tender forms by the prospective suppliers, opening of the bids and a consideration of the same, a Notification of Intention to award a tender from the procuring entity to the successful bidder, and a letter of award from the procuring entity to the supplier or successful bidder. 35. Despite the questions raised by the Defendants on whether the school contracted the Plaintiff to supply the assorted goods per the law, the Plaintiff did not place before this court any of the documents alluded to by this court in paragraph 28. 36. In the absence of the said documents, it would appear that the Plaintiff’s case was largely based on the fact that, having supplied the assorted goods to the school as evidenced by the LPOs, the delivery notes, and the invoices on record, they were entitled to the reliefs sought in their Plaint. 37. This must have informed the Plaintiff’s submission that any non – compliance with the law by the school was an internal administrative lapse which the school could not invoke to avoid payment. 38. The argument by the Plaintiff that compliance with the procurement processes is an internal administrative lapse which the

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Defendants cannot seek to use to avoid paying the contract sum sounds attractive on the face of it. However, it is this court’s view that such an argument can only be invoked in transactions governed under the Sale of Goods Act, where a party’s conduct or acceptance and use of the goods supplied is proof of the existence of a valid and enforceable contract between the parties, regardless of any procedural irregularities preceding the contract for the supply of the goods. 39. It is noteworthy that the provisions of the Sale of Goods Act are ousted by the provisions of section 5(1) of the Act, which provides that the Act shall prevail in the event of an inconsistency between the Act and any other legislation. by section 5(1) of the Public Procurement and Asset Disposal Act which stipulates that the Act shall prevail in case of any inconsistency between the Act and any other legislation or government Notices or Circulars, in matters relating to procurement and asset disposal except in cases where procurement of professional services is governed by an Act of Parliament applicable for such services. 40. A contractor/supplier and a public entity/procuring entity have a statutory duty to comply with the provisions of the Act as held in the Royal Media Services case (supra), where the court, while considering the repealed Public Procurement and Assets Disposal Act, 2005, rendered itself thus:“45. .......It is the duty of the Contractor as it is of the procuring entity to observe the provisions of Statute and the Regulations thereunder. Section 27 imposes an unequivocal responsibility on any contractor, supplier or consultant intending to supply goods or services to a public entity to comply with all the provisions of the Act and the Regulations. This duty, in my view, extends to the Contractor making due enquiries as to whether the procuring entity has complied with its side of the law and declining to enter

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into a contract which is procured in apparent disregard of the law. For that reason a contractor or supplier cannot find refuge in the argument that compliance was an internal matter of the public entity when s[he] has not done enough to enquire about compliance or s[he] is herself or himself guilty of Limited Vs infringement. (Emphasis added). 41. Similarly, in Pakater Investment Company Municipal Council of Malindi [2016] eKLR, the court stated as follows regarding the supplier’s duty under the Act: “I do agree with the findings of the trial court that the proper procedure to procure the goods was not followed. Although it is not the work of a supplier to find out the internal workings of a pubic organization or a company as established in the Turquand’s case, at least the ordinary processes have to be followed. A supplier cannot expect to receive a phone call from an assistant supply officer to supply goods and jump into the process of supplying. One has to be pre-qualified... The appellant cannot hide in the contention that it was not its duty to find out whether the process was followed. There is the basic business procedures which call for minimum due diligence....”(Emphasis added) 42. A reading of the authorities above shows that a supplier under the Act bears the duty of ensuring that the contract he seeks to enforce under the Act is above board, and that the supplier must prove to have complied with the Act in supplying services or goods to a public body. 43. Guided by the authorities above, the Plaintiff having not placed before this court the documents alluded to by this court in paragraph 28 of this judgment, and the Plaintiff having not stated the steps they

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took to confirm if the contract (s) for the supply of the assorted goods to the school was above aboard, it follows that the Plaintiff and the Defendants breached the provisions of the Act. 44. It is against this backdrop that this court holds and finds that the supply of the goods by the Plaintiff to the school was in contravention of the Constitution and the Act. Whether a contract entered into by a public body in contravention of the Act is enforceable 45. The general rule is that Courts do not enforce contracts that are in contravention of statutes. Such contracts are unenforceable for being illegal per the maxim ex turpi causa non oritur actio; which was expounded upon by the Court of Appeal in Kenya Airways Limited v Satwant Singh Flora [2013] eKLR, as follows; “No court ought to enforce an illegal contract or allow itself to be made the instrument of enforcing obligations alleged to arise out of a contract or transaction which is illegal, if the illegality is duly brought to the notice of the court, and if the person invoking the aid of the court is himself implicated in the illegality. It matters not whether the defendant has pleaded the illegality or whether he has not. If the evidence adduced by the plaintiff proves the illegality, the court ought not to assist him.” 46. In addition to the above, in D. Njogu & Company Advocates v National Bank of Kenya Limited (2016) eKLR, the Court of Appeal stated as follows: 23. Likewise we reiterate that any contract that contravenes a statute is illegal and the same is void ab initio and is therefore unenforceable….illegal at formation..abnition… 47. When confronted with a situation similar to the one obtaining in this suit, the court in Shabwali Secondary School v Vwinah (Civil Appeal E103 of 2023) [2024] KEHC 6206 (KLR) overturned a Small Claims Court judgment upholding a contract for the supply of

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goods where a public school had not complied with provisions of the Public Procurement and Asset Disposal Act despite the contractor having supplied goods worth Kshs. 250,000/= to the public school. 48. Alphas Ngonda – Chairman & 3 others v Joseph Kitonga Kithuku t/a Muki Hardware & General Works [2020] eKLR Justice P.J.O Otieno held as follows at paragraph 25: “25…I do find that the evidence led showed that Public procurement and asset disposal act was not followed in awarding the tender upon which the suit was grounded and that on that account it was not open to the court to enforce such an agreement by entry of judgment. This present the second compelling ground that the appeal be allowed and the judgment of the lower court set aside.” Kiage JA in Ethics & Anti-Corruption Commission v Vulcan Lab Equipment Ltd & another [2020] KECA 598 (KLR)…This Court has been consistently categorical that it will not aid those who would seek to use the judicial process to enforce contracts that bear the blight and blemish of corruption or illegality, and are against the public interest. I need do no more than reiterate what this Court, comprising a bench on which I sat, stated in KENYA PIPELINE CO. LTD vs. GLENCORE ENERGY (UK) LTD [2015] eKRL: “In STANDARD CHARTERED BANK vs. INTERCOM SERVICES LTD & 4 OTHERS (supra), this Court, differently constituted, accepted the submissions made that once an issue of a breach of a statute is brought to the attention of the Court in the course of proceedings, then in the interest of justice the Court must investigate it because the court’s fundamental role is to uphold the law. The court upheld and endorsed the old English case of HOLMAN vs. JOHNSON (1775-1802) ALL ER 98 where Chief Justice Mansfield stated; ‘The principle of public policy is this:

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Ex dolo malo no ovitur action. No court will lend its aid to a man who found his cause of action on an immoral or illegal act. If, from the plaintiff’s own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the court says that he has no right to be assisted. It is on that ground the court goes, not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. We respectfully agree with that pronouncement of the law that still speaks unmistakably more than two centuries later. What the English courts could not do to assist a lawbreaker, Kenyan courts and court anywhere should not do. There is a consistent line of decisions of this Court where it has set its face firmly and resolutely against those who would breach, violate or defeat the law then turn to the courts to seek their aid. The Court has refused to lend aid or succour and has refused to be an instrument of validation for such persons. We still refuse. See MISTRY AMAR SINGH vs. KULYBYA [1963] EA 408, HEPTULA vs. NOOR MOHAMMED [1984] KLR and FESTUS OGADA vs. HANS MOLLIN (supra). In the last case the Court stated, and we are content to merely restate it as good law, that no court ought to enforce an illegal contract where the illegality is brought to its notice and if the person invoking the aid of the court is himself implicated in the illegality.” In BLUE SEA SHOPPING MALL LTD vs. CITY COUNCIL OF NAIROBI & 3 OTHERS [2015] eKLR this Court, differently constituted, authoritatively held that a contract entered into in a procurement process that is flawed for violating the PPDA is striken by invalidity and illegality and cannot be given effect by the courts. See also PIUS

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KIMAIYO LANGAT vs. CO-OPERATIVE BANK OF KENYA LTD [2017] eKLR. It seems to me quite elementary that where a supplier enters into a contract that is in clear and egregious violation of the provision of the PPDA, such as in the instant case, it cannot lie in his mouth to say that he was unaware of such violations, or that the consequences of infirmity and unenforceability should not be visited upon him. I am not persuaded that Vulcan was a virtuous virgin corrupted by a crafty and vicious suitor. Indeed, the reverse may in all probability be true, as it was the direct beneficiary of all the nefarious machinations that subverted and made nonsense of procurement law. The question of whether Vulcan was bound by the statute law and regulations appears to me to be easily answered in the affirmative, on statutory authority. Section 27(4) of the PPDA provides in express terms that contractors, suppliers or consultants shall comply with all of its provisions. It follows therefore that in accepting direct procurement in the absence of the conditions spelt out in the PPDA, instead of the normal competitive process; in accepting the sum of Kshs. 75,086,880 which was a forbidden advance payment for goods not delivered; in proceeding with the contract without written negotiations; Vulcan went beyond being an innocent party to being an active participant in the violation of the mandatory provision of the PPDA, the PPDR and ACECA. It was not ignorant of the law that it deliberately breached. Moreover, such ignorance, had it been the case, could never have been a defence available to it. Given those clear statutory commands, I find it to be wholly unsatisfactory, and quite puzzling, that the learned Judge minimized the breaches by both SEPU and Vulcan and christened the provisions as SEPU’s internal procedures, compliance with which Vulcan did not have to enquire into. With great respect, I find this to have been a patent misdirection which must be reversed. In arriving at that curious

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conclusion, the learned Judge placed much reliance on the old English case of TURQUAND (supra) and the rule enunciated therein, otherwise referred to as the “indoor management rule.” She cited a passage from CHINA WU YI CO. LTD Vs. EDERMANN PROPERTY LTD & 2 OTHERS [2013] eKLR where the rule was applied to the effect that a third party dealing in good faith with a company, need not enquire into the regularity of such company’s internal proceedings and to assume, essentially, that the company has complied with all internal regulations. Whereas I see the practical necessity and the patent utility of the rule, for to hold otherwise would be to unduly clog the commercial interaction between companies and third parties, and unduly burden the latter with the duty to make inconvenient, lengthy and probably unsuccessful inquiries or investigations into internal procedures of companies, I cannot accept that such third parties are in any way absolved from the duty to be satisfied that the rather obvious relevant statutory requirements have been met. I would therefore hold that the authorities cited by Vulcan including KREDIT BANK CASSEL GMBH – Vs. SCHENKERS [1927] ALL ER 421 and EAST AFRICAN SAFARI AIR LIMITED Vs. ANTHONY KEGODE & ANOTHER [2011] eKLR, are distinguishable. My thinking on this matter aligns with that of the South African Supreme Court of Appeal’s decision in TEB PROPERTIES CC Vs. THE SCIENCE DEVELOPMENT, NORTH WEST (792/10) [2011] ZACA 243. The leading judgment Petse AJA (with Lewis and Bosielo JJ.A concurring) set out the frontiers of the Turquand Rule to the effect that it cannot apply to statutory edicts: “To my mind the concession made by the appellant that the Turquand rule only operates in favour of third parties who act in good faith and does not avail a third party who knew that

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the internal formalities had not been complied with, or was put on inquiry which he failed to make, is fatal to the appellant’s argument on this score. I say this because in Eastern Cape Provincial Government and Others vs. Contract props 25 (Pty) Ltd [2001] 4SA 142] which concerned the validity of two lease agreements of immovable property concluded without any reference to the provincial tender board – and thus peremptory statutory prescripts –this court said the following” This is not a case in which “innocent” third parties are involved. It is a case between the immediate parties to leases which one of them had no power in law to conclude and had been deprived of that power (if it ever had it) in the public interest. The fact that respondent was misled into believing that the department had the power to conclude the agreement is regrettable and its indignation at the stance now taken by the department is understandable. Unfortunately for it, those considerations cannot alter the fact that leases were concluded which were ultra vires the powers of the department and they cannot be allowed to stand as if they were intra vires.” It is my unhesitating conclusion that the learned Judge misapplied the Turquand Rule and that Vulcan’s attempts to rely on the same before us must necessarily fail. Having come to those conclusions regarding the existence of a valid contract and the binding, peremptory character of procurement laws upon Vulcan, the conclusion is inevitable that the learned Judge fell into error in awarding it the sum of Kshs. 94,279,202, which Vulcan said was the value of the goods it procured but SEPU declined to take delivery. The learned Judge granted that prayer on the basis that SEPU’s refusal to accept the goods amounted to breach of contract. As there was no valid contract, that basis for payment would not lie, and I would set it aside.

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49. Similarly, in Mugoye & Associates Advocates v Kiambu County Assembly Speaker [2018] eKLR, Mwita, J, in determining whether there was an enforceable contract between a law firm which provided legal services to a public entity without compliance with the Act, stated thus: “ The client as a public entity is required to procure for goods and services in compliance with the Constitution and PPAD Act. There is no evidence that there was any compliance with the law in so far as procurement of legal services from the advocates is concerned. There is not even a contract signed between the advocates and the client conferring the advocate–client relationship that could enable the advocates to offer legal services. The advocates seem to have taken the risk of offering their professional services premised on a false belief that they would be paid as it may have happened in an earlier case. It must be clear on those willing to offer goods or services that this is a new constitutional architecture and legal regime where procurement of goods and services is a constitutional requirement and must be done in accordance with the guidelines contained in the Public Procurement and Asset Disposal Act. Section 53(1) of PPAD Act is clear that all procurement by state organs and public entities are subject to the rules and principles of this Act, while subsection (8) states that accounting officer shall not commence any procurement proceeding until satisfied that sufficient funds to meet the obligations of the resulting contract are reflected in its approved budget estimates.” 50. It is abundantly clear from the authorities above that this court cannot enforce the contract between the parties herein for noncompliance with the Act. Whether the school’s principal’s admission of the school’s indebtedness to the Plaintiff breathed life into the illegal contract 51. The Plaintiff submitted that the school’s principal admitted owing the Plaintiff money through the letter dated 22 nd October 2024. They added that the said principal, having made that admission, the school could not turn around and claim that it did not owe the Plaintiff the money claimed.

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52. In other words, the Plaintiff was saying that the school principal cannot approbate and reprobate at the same time, and that the doctrine of promissory estoppel prevented the Defendants from disputing a debt they had earlier acknowledged. 53. This court has had the benefit of reading the letter dated 22 nd October 2024 from the school principal addressed to the Plaintiff’s counsel. That letter is indeed an admission of the school’s indebtedness to the Plaintiff. 54. The foregoing begs the question of whether an admission of indebtedness of a debt arising from an illegal contract makes an otherwise illegal and unenforceable contract enforceable and legal. 55. The question above was answered in the Mugoye case (supra), Mwita, J (as he then was) further stated that; “ ...I must state here that conduct cannot override clear provisions of the Constitution and the law with regard to expenditure of public resources. It was upon the Advocates to ensure that they had the necessary contractual documents before they offered legal services to the client. If the Advocates had previously acted and their fee was paid without following the law, the omission cannot be construed as a certificate to use public resources without following the Constitution and the law.” 56. It is against this backdrop that this court holds and finds that the school principal’s letter dated 22nd October 2024 admitting the school’s indebtedness to the Plaintiff did not make the unenforceable and illegal contract between the parties herein legal and enforceable. Whether the Plaintiff/Applicant who craves the aid of equity in realizing the alleged debt of Kshs. 1,810,000/= has approached the seat of equity with clean hands 57. The Plaintiff submitted that allowing the school to get away with non-payment of Kshs. 1,810,000/= for the goods supplied to it will amount to unjust enrichment. The Plaintiff also urged this court to

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consider the maxims of equity, including no person should benefit from their wrong, equity looks at substance and not form, and equity will not suffer a wrong without a remedy, to make a finding that the Defendants should pay the Plaintiff the Kshs. 1,810,000/= despite any legal infractions leading to the contract(s) herein. 58. Indeed, this is a court of justice and equity. Article 10 of the Constitution elevates equity to a constitutional imperative. Therefore, this court, in appropriate circumstances, can invoke maxims of equity in dispensing justice. This was acknowledged by Mrima, J in Ongeta v Abudo (Civil Appeal E858 of 2023) [2025] KEHC 2723 (KLR) where the learned judge stated: “Since 2010, the maxims of equity are constitutional values such that, for instance, whoever is guilty of laches is not in consonance with the Constitution . (See the Court of Appeal in Willy Kimutai Kitilit v Michael Kibet [2018] eKLR).” 59. This court acknowledges that the school used the goods supplied to it by the Plaintiff without fully paying for the same to date. That in and of itself is an act of unjust enrichment which equity detests. 60. When the court in the Royal Media Services case (supra) was faced with such a dilemma, the court stated thus:47. But an argument had been made that not to allow the claim would be to hurt RMS and to allow IEBC to get away with services without paying for them. This Court is not unsympathetic to this argument yet there is a greater public good in a Court declining to enforce a transaction that is contrary to statute. Judicial tradition in this Country is to frown upon illegal contracts. Regard must be given to the doctrine of Ex lurpi causa non oritur action, that is from a dishonorable cause an action does not arise. There may be good reason not to resolve such argument in favour of a contractor or supplier who is partly to blame or who is not

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entirely blameless. I reasoned as follows in Centurion Engineers & Builders Ltd vs. Kenya Bureau of Standards [2016] eKLR:57. The Court reaches its decision even in the face of the submissions by the Claimant’s Counsel that the Respondent has benefited from the works while the Claimant has taken out loans to carry them out. The point being made by the Claimant is that to accept the Public Policy argument would be to unjustly enrich the Respondent and to oppress the Claimant… 58. If the Court were to uphold such breach on the argument that to do otherwise would be to cause loss and suffering to the Contractor, then we must be ready to put up with routine and casual violation of our Procurement laws. We must be ready to allow Contractors to benefit from illegal Contracts. And such a lenient stance could encourage Contractors to happily collude in the violation of the law and then turn around to play victim so as to win the sympathy of the Court. The Law on Procurement is on the side of the Kenyan Public and it must be strictly enforced.”(Emphasis added) 61. It follows from the authority above that the doctrine of unjust enrichment does not arise and cannot be invoked in favour of a supplier in this jurisdiction where there is a breach of procurement laws. 62. Be that as it may, as earlier held in this judgment, the Plaintiff is not an innocent bystander in the mess they found themselves in. The Plaintiff failed to discharge its statutory duty of ensuring that the contract between them and the school was above board. Simply put, the Plaintiff actively participated in the creation of the illegal contract they seek to enforce. 63. It is a maxim of equity that he who comes to equity must come with clean hands. The Plaintiff has not approached the seat of equity

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with clean hands. In the circumstances, the door to equity must be shut in their face. 64. The upshot of the above is that equity cannot be invoked in this case for this court to grant the Plaintiff the prayers in the Plaint herein. 65. It is not lost to this court that, whereas the Plaintiff supplied goods to the school at their own cost, they may never recover the money that the school still owes them under the illegal contract (s) herein. 66. Whereas this court sympathizes with the situation the Plaintiff finds themselves in, there is nothing much this court can do. This court is bound by the doctrine of stare decisis, which is a constitutional requirement as held in Jasbir Singh Rai & 3 Others Vs. Tarlochan Singh & 4 Others, (2013) eKLR, where the Supreme Court asserted that the rule of precedent promotes predictability, diminishes arbitrariness, and enhances fairness, by treating all cases alike, the doctrine of stare decisis holds that decisions of a higher court, unless distinguished or overruled, bear the quality of law, and bind all lower courts in similar or like cases. 67. The same position was taken by Njoki Ndungu, SCJ in Kidero & 5 Others –Vs- Waititu And Others, Supreme Court Petition No.18 of 2014 (consolidated with petition no. 20 of 2014), where she stated: “The principle of stare decisis in Kenya unlike other jurisdictions is a constitutional requirement aimed at enhancing certainty and predictability in the legal system.” 68. It is this court’s humble view that there is a need for law reform to require a public official who flouts procurement rules to compensate a contractor who incurs loss as a result of such breach of the procurement law. 69. Before penning off, it is important to address a point of law on the (mis)joinder of the 2nd Defendant that can be gleaned from the pleadings herein.

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70. Paragraph 1 to the fourth Schedule of the Basic Education Act,2013 provides that the Board of Management of a school shall be a body corporate with perpetual succession and a common seal, and shall, in their corporate names, be capable of suing and being sued. 71. Section 61 of the Basic Education Act, 2013, grants the Board of Management (BOM) power to establish committees to assist in school management. The 2nd Defendant is one of those committees. Such committees perform delegated powers on behalf of the Board of Management. Where a school committee errs in its decision-making, the Board of Management takes responsibility for any such acts or omissions. Therefore, public school committees are not legal entities capable of being sued in their name. 72. Given the reasons above, this court finds and holds that the 2 nd Defendant was improperly joined to this suit. DISPOSITION 73. For the reasons above, this suit is dismissed. 74. Given that the Plaintiff and the school breached the law leading to the filing of this suit, this is a proper case of departing from the general rule that costs follow the event. Consequently, this court orders each party to bear their own costs of this suit. 75. Judgment accordingly. Read, signed, and delivered in open court at Bungoma, this 30th day of April 2026 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Mr. Wangila for the Plaintiff

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C/A: Mr. Rioba

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