Court Favours a Bush Clearing Firm in Sh17 Million case against KPC

by Lawyer Wanz
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Kenya Pipeline Company (KPC) has lost bid to recover Sh17 million paid to a contractor 16 years ago for clearance of bushes

KPC had filed a petition claiming that Kanyotta Holdings Limited received Sh17,916,038 while it had failed to complete the works as contracted.

Mr Edwin Omollo, a senior civil engineer working with the KPC since 1999, told the court that the payments did not tally with actual value of works carried out on site.

He added that some of the work claimed as done by the contractor had actually been carried out by the civil and building section of the KPC as part of their maintenance and rehabilitation activities.

But justice Maureen Odero dismissed the claim upon finding that it is inconceivable that such a large sum of money could be paid out to a contractor by KPC without the requisite confirmations and approvals.

The Defendants (KPC) have failed to prove that the Plaintiffs (Kanyotta Holdings) were paid when no works had been undertaken or where the works were found to be unsubstantial. If this were the case then I am certain no payment would have been made to the Plaintiffs at all. I therefore find that the Defendants have failed to prove their counter-claim,” said justice Odera.

The judge noted that the KPC senior civil engineer had confirmed to court that no contractor can be paid any amount unless a certificate of payment signed by the KPC’s site engineers.

Under cross-examination, the engineer stated that he was unable to confirm whether KPC supervisors certified the works done by the contractor.

How then can the KPC claim that the payment to the contractor of this Sh17,916,038 was not properly approved and certified?” Posed the judge.

She ordered the parastal to pay the contractor a balance of Sh14,585,315 together with interests from October 2004 when the case was filed in court until payment in full.

Kanyotta Holdings Managing Director Mr Wachira Muritu told court that his company was awarded the contract vide a letter dated November 5, 2002.

He said the entire contract involved the building and establishment of gabions, clearing of bushes along the KPC’s right of way as well as the protection of the pipeline from being washed away by rain and ensuring that the pipeline was properly secured and protected from damage by rains.

Mr Muritu said his firm completed the work and received Sh17 million leaving a balance of Sh14.5 million.

He said despite making demand for the outstanding amount no payment was forthcoming.

During the dependency of the case a meeting was held between the parties on February 12, 2005. At that meeting the contractor insisted that it had completed the works within six months to the specifications in the letter of award.

At the meeting it was resolved that the contractor avail evidence to support its claim of work done whilst a Mr. S. K. Waweru was tasked to confirm whether the bush clearing had been done.

However, Mr Muritu stated that his company was unable to come up with documentary proof required as the same had been submitted to the Mbela Commission, which was appointed to look into and verify all pending claims against the KPC.

He said that attempts to retrieve the documents from the Mbela Commission had proved unsuccessful as they were forwarded together with the final report of the Commission to the Ministry of Energy.

He pointed out that the Mbela Commission had cleared his company and had recommended that it be paid its dues.

Additional reporting by Business Daily.

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