BY SAM ALFAN.
An advertising company will pocket Sh248 million from Independent Electoral and Boundaries commission over services rendered ahead of 2017 general election.
This is after High Court Judge John Chigiti ordered the electoral body to scanad Kenya Ltd hundreds of millions.
In his decision, Judge Chigiti observed that IEBC never responded to the advertising agency application seeking to compel the commission Chief Executive Officer Marjan Hussein Marjan to the amount of money to the company.
The judge further stated that the advertising agency through lawyer James Gitau Singh demonstrated that by way of evidence compliance with provisions of section 21 of government proceedings Act and the commission has not filed a replying affidavit to rebut aforesaid evidence.
“The Respondents(IEBC) have not given any satisfactory reason as to why the decree has not been fulfilled and no efforts have been made towards settling the claim. The Applicant (Scanad Kenya ltd) has a legitimate expectation that he shall not only access but also enjoy the fruit of the judgment,” ruled the judge.
The judge added that the Fair Administrative Action Act shall remain a dead letter unless the IEBC and indeed all judgment debtors settle the decrees.
IEBC claimed that it could not pay as the National Treasury had not allocated it funds and despite numerous demands the Respondent has deliberately failed, refused and or declined to satisfy the decree.
However,the judge noted that IEBC has not appealed against, or set aside the Decree or certificate of Costs subject of the instant application and no attempt has been made to challenge the Court order.
On 26th day of April ,2021,the then High Court Judge Grace Macharia entered the judgement against the commission.
“That judgment on admission is entered for the Plaintiff(Scanad Kenya ltd) against the Defendant(IEBC) for the Sh. 245,002,620.12 inclusive of the Value Added Tax together with Costs and interests at court rates. Interest at 2 per cent per month on the judgment sum is not granted as it is not admitted. The same remains triable,” ordered judge Ngenye in her decision.
The company through lawyer Singh told the court that prior to conducting the 2017 General Elections, IEBC invited entities in the marketing services industry to provide proposals for the provision of strategic communication and integrated media campaign.
Commission’s objective was to reposition itself as a respectable corporate brand in the provision of electoral services and to enhance public confidence and participation in the electoral process.
Scanad Kenya ltd duly responded to the Commission’s request by submitting its proposal on 18 April 2017, in strict adherence to the requirements set out by the commission and by way of a letter dated 29 June 2017, the commission informed the company that it had accepted its bid and would pay the company Sh350,003,746 (inclusive of value added tax) for the provision of the services.
Lawyer Singh further submitted that the company responded to the IEBC through a letter dated 3 July 2017 confirming that it was amenable to providing the services at the price of Sh 350,003,746 (inclusive of value added tax).
“The company and the commission subsequently signed a contract dated 27 July 2017 setting out the rights and obligations of both parties,” lawyer Singh told the court.
The company accused the commission for breach of contract by failing to settle Scanad’s invoice bearing the number PD 011592 dated 28 July 2017 for the sum of Kenya Shillings 87,500,935.56 (inclusive of value added tax) in breach of part 2 of clause 6.4 of the contract. This is despite the Plaintiff discharging its contractual duties and submitting the Interim Report.
The commission is accused for failuring to settle the company’s invoice dated 29 August 2017 for Sh 87,500,935.56 (inclusive of value added tax) in breach of part 3 of clause 6.4 of the contract. This is despite the Plaintiff discharging its contractual duties and submitting the Monitoring Report.
Lawyer Singh further faulted the commission for breach of contract by failing to settle Scanad’s invoice dated 29 October 2017 for Sh 70,000,749.00 (inclusive of value added tax) in breach of part 4 of clause 6.4 of the contract.
IV. Failure to settle the Plaintiff’s invoices within 30 days of receipt as agreed.
“Despite consistent reminders, IEBC has, failed, refused or neglected to settle the invoices and the total amount outstanding owed to Scanad Kenya ltd is Sh245,002,620.12 (inclusive of value added tax),” lawyer Singh told the court.
The company submitted that the commission unequivocally admitted to being indebted to Scanad in its letter dated 13 November 2019 bearing the reference IEBC/FIN/Vol. XX (147) which was in response to Scanad’s letter dated 3 October 2019.
