The Kenya Pipeline Company (KPC) has lost a bid to reclaim Sh17 million paid to a contractor 16 years ago for clearance of bushes and rehabilitation of the right of way along the Mombasa – Nairobi – Eldoret pipeline routes.
In its court papers, KPC had claimed that Kanyotta Holdings Limited received the sum while it had failed to complete the works as contracted.
Mr Edwin Omollo, a senior civil engineer working with KPC since 1999, told court that payments made to Kanyotta Holdings Ltd did not tally with actual value of works carried out on site.
He said 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 having first been obtained.
"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 confirming that the work for which payment is being invoiced has actually been done, certified and approved.
Under cross-examination, the engineer stated he could not confirm whether or not 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 parastatal 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 tender 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 line was properly secured and protected from damage by rains.
Mr Muritu said his company completed the work and received a sum of Sh17 million leaving a balance of Sh14..5 million.
He said despite making demand for the outstanding amount no payment was forthcoming leaving his company with no option but to file the suit.
During the case a meeting was held between the parties on February 12, 2005. At that meeting the contractor insisted that it had done the works within six months to the specifications in the letter of award.
At the meeting it was resolved that the contractor provide 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.