Guyo & another t/a Jao Mumias Garments v Board of Management St Joseph’s Boys High School Kitale & another (Commercial Claim E082 of 2024) [2024] SCC 20 (KLR)

there was no tender and/or prequalification of the goods and services supplied. 4. The 2nd Respondent also denied owing the Claimants any money. He stated that it is the 1st Respondent who owed the Claimants the sum of money claimed in this claim given that the goods in question were ordered by the school, and services in question rendered by the Claimant as set out in the instant claim. He added that the 1 st Respondent’s finance committee valued and verified the bill claimed by the Claimants and thereafter approved the same for payment. 5. By consent of the parties herein, this matter proceeded under section 30 of the Small Claims Court Act. Issues for Determination 6. The parties’ pleadings, witness statements, documents, submissions and the authorities relied upon by the respective parties have been duly considered by this court. The issue(s) for determination by this court is whether there exists a valid contract between the Claimant and the 1st Respondent for the construction of a music room capable of enforcement, and if yes, what are the remedies (if any) available to the Claimants. 7. The Claimants placed before this court LPOs, invoices, and photos showing that they supplied goods to the 1 st Respondent for the refurbishment of the 1st Respondent’s music room, and also rendered the said refurbishment services. The fact that the claimants delivered on the project and that the 1 st Respondent owed the Claimants money was corroborated by the handing over and taking over report dated 02nd February 2023, and the audit report filed by the 1st Respondent herein. 8. The 2nd Respondent’s submission was that since the Claimants supplied goods and services as claimed in the instant claim, the Claimants were Kitale SCC CC. No. E032 of 2024 Page 2 of 10 Judgment

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entitled to the reliefs sought. The Claimants on the other hand submitted that since the 2nd Respondent did not comply with the provisions of the Public Procurement and Asset Disposal Act, 2015 in engaging the Claimants for the work undertaken by the Claimants, the instant claim ought to be dismissed. 9. Despite the questions raised by the 1st Respondent on how the 2nd Respondent engaged the Claimants for supplying goods and rendering the services claimed in the claim, the Claimants did not provide evidence to prove on a balance of probabilities that they complied with the law in the transaction giving rise to the instant claim. The Respondents did not place any tender document and/or contract document signed between them and the 1st respondent before this court. The Claimants also did not present to this court any letter of offer from the 1st Respondent, showing that they indeed won a tender to undertake the services and supply the goods claimed in the instant claim. 10. In the absence of the documents alluded to by this court in paragraph 9 above, it would appear that the Claimant's claim was largely based on the fact that, having refurbished the 1 st Respondent’s music room, they were entitled to the reliefs sought in the instant claim. 11. Well, generally speaking, the Claimants’ position is well-founded under the Sale of Goods Act since under the said Act, a contract can be implied by the conduct of the parties regardless of any procedural breaches leading to the performance of such a contract. 12. This court is of the considered view that the provisions of the Sale of Goods Act do not apply in the instant claim since the 1 st Respondent is a public entity. 13. Supply of goods and services to a public body/entity is governed by Article 227(1) of the Constitution, which obligates state organs and Kitale SCC CC. No. E032 of 2024 Page 3 of 10 Judgment

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public entities to procure goods and services through a system that is fair, equitable, transparent, competitive and cost-effective. This constitutional imperative finds a statutory backing under the Public Procurement and Assets Disposal Act, of 2015. 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. 14. A contractor and a public entity have a statutory duty to comply with the provisions of the Public Procurement and Assets Disposal Act, 2015 as held in Royal Media Services V Independent Electoral & Boundaries Commission & 3 others [2019] eKLR 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 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 infringement. (Emphasis added). Kitale SCC CC. No. E032 of 2024 Page 4 of 10 Judgment himself guilty of

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15. in The duty of a supplier of goods and/or services to a public body the procurement Investment process Company was Limited also summarized Vs Municipal in Pakater Council of Malindi [2016] eKLR where the court stated: “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....” 16. When confronted with a situation similar to the one obtaining in this claim, 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 goods where a public school had not complied with PPAD Act of 2015 despite the contractor having supplied goods worth Kshs. 250,000/= to the public school. 17. Guided by the authorities above, the Claimants having not placed before this court the documents alluded to by this court in paragraph 9 of this judgment, the Claimants having not stated the steps they took to confirm if the contract herein was above board and the Claimants having not led evidence to show that the said documents were in the custody of the 1st Respondent, it follows that Kitale SCC CC. No. E032 of 2024 Page 5 of 10 Judgment

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the Claimants and the 2nd Respondent breached the provisions of the Public Procurement and Assets Disposal Act, 2015. The Claimants must bear the brunt of the breach of the law that they actively participated in performing. 18. the It is against this background that this court finds and holds that contract that the Claimants seek to enforce against the Respondents was in contravention of the Constitution and statute. 19. The general rule is that Courts do not enforce contracts which are in contravention of statutes. In Nairobi Civil Appeal No. 165 of 2007 D. Njogu & Company Advocates vs. 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… 20. The upshot of the foregoing is that there is no valid contract between the Claimants and the 1st Respondent capable of being enforced by this court hence the Claimants are not entitled to the reliefs sought. 21. This court sympathizes with the situation the Claimants find themselves in. Whereas they supplied goods and services to the 1 st Respondent at their own cost, they may never recover the money they spent on the refurbishment of a facility that the 1 st Respondent is using. This court is of the considered 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. 22. When the court in the Royal Media Services case (supra) was faced with such a dilemma, the court stated thus:- Kitale SCC CC. No. E032 of 2024 Page 6 of 10 Judgment

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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 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.” 23. For the reasons above, this court can only sympathize with the Claimants, nothing more Kitale SCC CC. No. E032 of 2024 Page 7 of 10 Judgment

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24. Before penning off it is important to address a point of law on the (mis)joinder of the 2nd Respondent that can be gleaned from the pleadings herein. The general rule is that a principal of a public school cannot be sued in their personal capacity for acts or omissions arising from their lawful official duties as a secretary of a Board of Management of a public school. In Republic vs The Secretary to the Board of Governors, Musingu High School-Kakamega (2011) eKLR Lenaola J (as he then was) at paragraph 5 stated that “from the above it is obvious that the body lawfully capable of being sued on behalf of a school is the Board of Governors as a corporate entity and not one of its officials such as the secretary to the board…” 25. Mativo J (as he then was) in J.N. and 5 others vs. Board of Management, St. G School Nairobi and Another(2017) eKLR that: “my understanding of the law and the above provision is that the Board of management is a legal entity, capable of suing and being sued and the school Principal cannot be sued in her name or personal capacity for decisions made by the Board. There is nothing to show that she made the impugned decisions made by the board. There is nothing to show that she made the impugned decision in her capacity or acted outside her mandate to warrant personal liability:. the petition does not disclose a case against her in her personal capacity and it would be improper, unfair and unjust to drag her through these proceedings when the decision being challenged was arrived at by a legal entity.”(Emphasis added) Kitale SCC CC. No. E032 of 2024 Page 8 of 10 Judgment

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26. A reading of the J.N. and 5 others case (supra) implies that the immunity from being sued for actions arising from their official duties is only accorded to principals of public institutions where they implement the decisions of the Board of Management. The immunity is lost where a Principal acts without the blessings of the Board of Management like in the instant claim. 27. It would appear to this court that the breaches of the law by the Claimant and the 2nd Respondent outlined in this judgment could have possibly informed the Claimants’ decision to join the 2 nd Respondent as a party to the claim, and the 2nd Respondent’s counsel’s failure to file an application for misjoinder of the 2nd Respondent. 28. In the circumstances, this court holds and finds that the 2 nd Respondent was properly joined to this claim. DISPOSITION 29. Given the foregoing, this claim is dismissed with costs of Kshs. 20,000/= to the 1st Respondent. 30. The 2nd Respondent will bear the costs of this claim since he acted beyond his scope of authority in contracting the Claimants to supply the goods and/or services in the unenforceable contract herein, hence causing the filing of the instant claim. 31. Judgment accordingly. READ, SIGNED and DELIVERED in open court at Kitale this 28th day of October 2024 T.O. OMONO ADJUDICATOR Kitale SCC CC. No. E032 of 2024 Page 9 of 10 Judgment

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In the presence of: Ms. Oloo for the Claimants Ms. Masai h/b for Ms. Munialo for the 2nd Respondent Kitale SCC CC. No. E032 of 2024 Page 10 of 10 Judgment

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