Attorney-General Paul Kihara Kariuki, was on Wednesday, October 28, given the greenlight to go after a city tycoon who was awarded Ksh3.1 billion as settlement for carrying out a tender that was agreed on verbally, during the late President Daniel arap Moi's era.
In their ruling, judges William Ouko, Gatembu Kairu and Daniel Musinga explained that the lack of documentation approving the said works proved that the plaintiff's (Kabuito Contractors Ltd) award could be contested.
"It is not disputed that pursuant to the verbal instructions by the PS Ministry of Local Government, the plaintiff proceeded to carry out the works which the defendant was unable to access because of lack of documentation since it wasn't in writing," reads an excerpt from the latest ruling.
However, the Ministry insists that verbal instructions could not stand as a valid contract, thus demanding the Ksh3.1 billion awarded by High Court Judge Joseph Sergon in 2018 be nullified.
Kabuito Contractors Ltd had been engaged in a 20-year-battled with the Ministry, claiming Ksh115 which was owed to it following the works carried out on 13 roads in Nairobi.
This figure grew to Ksh1.12 billion when the contractor sued owing to interest before rising even further to Ksh3.17 billion by the time Justice Sergon made the ruling in the companies favour.
According to Kabuito ltd's lawyers, the firm was contracted to re-carpet a total of 9.5km of road cutting across Biashara Street, City Hall Way, Harambee Avenue, Kaunda Street, Kimathi Street, Koinange Street, Mama Ngina Street, Muindi Mbingu Street, Murang'a Road, Parliament Road, Ring Road, Taifa road and University Way.
Following the El Nino rains of 1997, the company was allegedly directed to carry out repair works on 13 other roads within the city.
However, when the firm sought payment, the Local Government said it was unable to check on any works carried out or the legality of the claim as there was not a single document proving that the work was even commissioned.
In its defence, the firm claimed that the verbal agreement to carry out the tender at the time was normal practice as Permanent Secretaries did it all their time due to their powers.
In his 2018 ruling, Justice Sergon said that it was clear that the government was well aware of the ongoing works and approved the work.
“In my humble view, the defendant (government) is estopped from denying to settle the plaintiff’s claim for non-compliance of public procurement processes after benefitting from the services rendered by the plaintiff upon its inducement,” reads an excerpt from his ruling.
