Case ID:171541

Johnnewton Communication Ltd & 5 others v Ministry of Information, Communication & Technology [2021] eKLR

Case Metadata

Case Number:

Civil Case 33 of 2019

Parties:

Johnnewton Communication Ltd, Sunday Publishers Ltd, Express Media Ltd, Cross Continents Venture Ltd, Shieldlock Ltd & Melsav Company Ltd v Ministry of Information, Communication & Technology

Date Delivered:

26 Feb 2021

Case Class:

Civil

Court:

High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Case Action:

Judgment

Judge(s):

Maureen Akinyi Odero

Citation:

Johnnewton Communication Ltd & 5 others v Ministry of Information, Communication & Technology [2021] eKLR

Court Division:

Commercial Tax & Admiralty

County:

Nairobi

Case Outcome:

Judgment entered for the Plaintiffs.

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

COMMERCIAL & TAX DIVISION

CIVIL CASE NO. 33 OF 2019

JOHNNEWTON COMMUNICATION LTD............................1

ST

PLAINTIFF

THE SUNDAY PUBLISHERS LTD..........................................2

ND

PLAINTIFF

THE EXPRESS MEDIA LTD....................................................3

RD

PLAINTIFF

CROSS CONTINENTS VENTURE LTD.................................4

TH

PLAINTIFF

SHIELDLOCK LTD...................................................................5

TH

PLAINTIFF

MELSAV COMPANY LTD.......................................................6

TH

PLAINTIFF

VERSUS

MINISTRY OF INFORMATION,

COMMUNICATION & TECHNOLOGY....................................DEFENDANT

JUDGMENT

(1) This suit was filed vide the Plaint dated 10

th

January 2019 by which the Plaintiffs

JOHNNEWTON COMMUNICATION LTD

(hereinafter the 1

st

Plaintiff),

THE SUNDAY PUBLISHERS

(hereinafter the 2

nd

Plaintiff),

THE EXPRESS MEDIA LTD

(hereinafter the 3

rd

Plaintiff),

CROSS CONTINENTS VENTURE LIMITED

(hereinafter the 4

th

Plaintiff),

SHIELDLOCK LTD

(hereinafter the 5

th

Plaintiff) and

MELSAV COMPANY

LTD

(hereinafter the 6

th

Plaintiff) pray that judgment be entered in their favour against the Defendant for:-

“(a) Kshs. 31,850,000/- in favour of the 1

st

Plaintiff.

(b) Kshs. 10,730,000/- in favour of the 2

nd

Plaintiff.

(c) Kshs. 9,800,000/- in favour of the 3

rd

Plaintiff.

(d) Kshs. 4,300,000/- in favour of the 4

th

Plaintiff.

(e) Kshs. 9,800,000/- in favour of the 5

th

Plaintiff.

(f) Kshs. 26,250,000/- in favour of the 6

th

Plaintiff.

(g) Interest on amounts set out under (a), (b), (c), (d), (e) and (f) above at Court rates from the date of filing of the suit until payment in full.

(h) Costs of the suit.”

(2) The Defendants

MINISTRY OF INFORMATION, COMMUNICATION & TECHNOLOGY

(the 1

st

Defendant) and

THE HON. ATTORNEY GENERAL

(the 2

nd

Defendant) filed a Statement of Defence dated

21

st

May 2019

praying that the Plaintiffs suit be dismissed in its entirety with costs to the Defendant. The hearing of the suit commenced before this Court on

17

th

February 2020

. The Plaintiff called two (2) witnesses in support of their case whilst the Defendant called one (1) witness.

THE EVIDENCE

(3)

PW1 AYUB SAVULA

told the Court that he was a

Member of Parliament

representing

Lugari Constituency

, and was also a Director of all the Plaintiff Companies.

PW1

relied entirely upon his written statement dated

10

th

January 2019

and Further Written Statement dated

23

rd

August 2019

.

PW1

stated that the Plaintiffs are the publishers of various publications as follows:-

(i) The 1

st

Plaintiff is the Publisher of

Safari Times Magazine.

(ii) The 2

nd

Plaintiff is the Publisher of

Sunday Express Newspaper

.

(iii) The 3

rd

Plaintiff is the Publisher of

Economic Focus Magazine

.

(iv) The 4

th

Plaintiff is the Publisher of

Sugar Commodity Review Magazine.

(v) The 6

th

Plaintiff is the Publisher of

CEO Africa Magazine.

(4)

PW1

stated that on diverse dates between

February 2016

and

November 2017

at the 1

st

Defendant’s request the said publications placed advertisements in their various newspapers and magazines. That in breach of their respective contracts and/or terms of Agreement the 1

st

Defendant has failed and/or refused to pay to the Plaintiffs their respective advertising charges as particularized hereunder:-

1

st

Plaintiff – Kshs. 31,850,000/-

2

nd

Plaintiff – Kshs. 10,730,000/-

3

rd

Plaintiff – Kshs. 9,800,000/-

4

th

Plaintiff – Kshs. 4,300,000/-

5

th

Plaitniff – Kshs. 9,800,000/-

6

th

Plaintiff – Kshs. 26,250,000/-

TOTAL - Kshs. 129,730,000/-

(5)

PW1

stated that despite demand having been made by the Plaintiffs Advocates the Defendant has refused and/or neglected to pay the Plaintiffs the amounts due to them. Hence the present suit.

(6)

PW2 ERIC ONYANGO MARENYO

told the Court that he was a Director of the 5

th

Plaintiff.

PW2

relied on his written statement dated

10

th

January 2019

. He stated that on diverse dates between

February 2016

and

October 2017

the 5

th

Plaintiff at the request of the 1

st

Defendant placed advertisements in their magazine

The University Magazine

on terms that were mutually agreed upon between the parties.

(7)

PW2

avers that in breach of the contract and terms of Agreement between the parties the 1

st

Defendant neglected to pay to the 5

th

Plaintiff the sum of

Kshs. 9,800,000/-

due to it. That despite demand having been made no payment was forthcoming. Hence the present suit.

(8)

DW1 JOHN PAUL MANYUANDA ONGANYI

testified on behalf of the Defendant. The witness relied on his written statement dated

12

th

June 2019

.

DW1

told the Court that he is a Civil Servant working as a Public Communication Officer / Media Buyer since

November 2016

.

DW1

stated that Government contracts for Advertising were only issued through a centralized body being the

GOVERNMENT ADVERTISING AGENCY

(hereinafter

‘GAA’

).

(9)

DW1

told the Court that the procedure at the Agency is that it receives requests from Government Agencies for advertising services and the Agency then negotiates with the media houses/suppliers and once an agreement is reached, the Agency signs a Space Order on behalf of the Government Agency then the material to be advertised is forwarded to the Supplier. Once the service has been rendered and the advert run, the media house goes back to the Agency with an invoice together with the attached Space Order and output cutting of the advert or transmission report or electronic advert. The Agency retains all the documents submitted and that all budgetary allocations for adverts for ministries are held by the Agency as well and it also retains all documents relating to the payment process.

(10)

DW1

categorically denies that the 1

st

Defendant ever entered into any contract / Agreement with the

1

st

, 2

nd

, 3

rd

, 4

th

, 5

th

or

6

th

Plaintiffs through the

Government Advertising Agency

(“GAR”)

or at all. He states that the 1

st

Defendant paid the Plaintiffs an amount of

Kshs. 108,212,500/-

for Advertising Services rendered to it. That the above payment is the subject of an ongoing

Criminal Case No. 2053/2018

which is still pending determination. That the Criminal case arose due to queries about the authenticity of the documents used by the Plaintiffs to claim their payments.

DW1

states that the Defendants do not owe the Plaintiffs any money at all and urges the Court to dismiss the suit in its entirety.

(11) At the close of the oral hearing parties were invited to file their written submissions. The Plaintiff filed their written submission dated

28

th

April 2020

whilst the Defendants filed the written submissions dated

11

th

June 2020.

ANALYSIS AND DETERMINATION

(12) I have carefully considered the evidence adduced by all parties in this matter, the written submissions filed as well as the relevant law. It is trite law that he who alleges must prove. The

Evidence Act

, places the burden of proof of any fact on the person who wishes to rely on the same.

Section 107

of the

Evidence Act

provides as follows:-

“Burden of proof

(1) Whoever desires any Court to give judgment as to any legal or liability dependent on the existence of facts which he asserts must prove that those facts exist.

(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”

(13) The following are the issue which arise for determination:-

(i) Whether there existed a valid and enforceable contract between the Plaintiffs and the 1

st

Defendant.

(ii) Whether the Plaintiffs are entitled to this amount of

Kshs. 129,730,000/-

as claimed in the Plaint.

(i)

EXISTENCE OF A CONTRACT

(14) The Plaintiffs position is that a valid contract existed between the parties for the provision of space for advertising in the Plaintiff’s magazines and publications. In support of this claim the Plaintiffs rely on various contract Agreements which include among others:-

- Contract Agreement dated

15

th

April 2013

executed between the 1

st

Plaintiff and the Ministry of Public Works (Annexture 1 at

page 3

of the Plaint filed on

30

th

January 2019)

- Media Booking Contracts executed between the Plaintiffs and the 1

st

Defendant.

(15) On the other hand the 1

st

Defendant through

DW1

is adamant that no valid contract existed between the parties.

DW1

stated that all contracts for advertising had to be effected with the

GAA

. That under the

GAA

for a contract it was mandatory that the following documents be shown to exist.

(i) Request letter

(ii) GAA / Media Agreement

(iii) Space Orders

(16)

DW1

asserts that the failure of the Plaintiffs to avail any of the above documents means that no valid contract existed between the parties. However the Defendants appeared to waver on the question of existence of a contract. The Plaintiffs annexed the Media Booking Contracts in the Supplementary Bundle of Documents filed on

18

th

July 2019

. These contracts were all executed on behalf of the 1

st

Defendant by one

MR. DENNIS CHEBIWEI

.

PW1

stated that such Media Booking Contracts would only valid if executed by the Principal Secretary of the line Ministry.

(17)

DW1

further stated that the said Media Booking Contracts were only rate cards to be applied for future contracts on a need-basis and did not show the work or adverts placed by the Plaintiffs. Indeed the said contracts read as follows:-

“The rates are subject to availability of space and adjustment occasioned by a negotiated group package.”

(18) Inasmuch as

DW1

insisted that only the Principal Secretary was authorized to sign the Media Booking Contracts, the witness concedes that “

Dennis Chebiwei

” was infact a Communications Officer employed by the

GAA.

The contracts having been signed by a Senior Officer with the

GAA

would in my view bind the 1

st

Defendant. The rule in

TURQUAND’S

case would apply. This Rule was stated in

MORRIS v KANSSEN [1946]AC

as follows:

“Persons contracting with a company and dealing in good faith may assume that acts within its constitution and powers have been properly and duly performed and are not bound inquire whether acts of internal management have been regular.”

(19)

PW1

told the Court that the invoices for the amounts being claimed by the Plaintiffs had been submitted to the 1

st

Defendant. However

PW1

admitted that the Plaintiffs had already been paid “

about Kshs. 100 million

” which represented half of the amount due to them.

(20) It is noteworthy that the Plaintiffs are listed in the schedule of the 1

st

Defendant pending bills for the Financial year ending on

30

th

June 2017

(page 97-128 of Plaintiffs Supplementary Bundle field on

26

th

August 2019

).

DW1

has not controverted this fact. Indeed

DW1

confirms that the 1

st

Defendant had already paid out to the Plaintiffs the sum of

Kshs. 108,212,500/-

for services rendered. If as

DW1

asserted no contract existed between the parties then what was the basis of the payment to the Plaintiffs of

Kshs. 108,212,500/-.

Further it is improbable that the Plaintiffs claims would be included as pending bills in Official Government Communication if no contract existed between the parties.

(21) In the case of

ABDULKADIR SHARIFF ABDIRAHIM & ANOTHER –VS- AWO SHARRIF MOHAMMED [2014]eKLR

the Court held that:-

“There is no general rule of law that all agreement must be in writing. The numerous benefits of a written agreement notwithstanding, all that the law requires is that certain specific agreements must be in writing or witnesses by some written note or memorandum. Section 3(1) of the Law of Contract Act is one such provision.”

(22) It is evident from the actions of the 1

st

Defendant in paying the Plaintiffs this sum of

Kshs. 108,212,500/-

and from the fact of listing of the Plaintiffs as Creditors in the Ministry’s list of pending bills that there was a valid contract between the parties. Indeed

DW1

admitted as much under cross-examination when he stated:-

“The amounts being claimed by the Plaintiffs have been listed in the pending bills may be they have not been paid. I do not know if the sums claimed have been paid or not …..”

Therefore I find that it has been proved on a balance of probability that valid contracts existed between the Plaintiffs and the 1

st

Defendant.

(ii)

PLAINTIFF’S CLAIM

(23) Having found that a valid contract existed between the parties the next question is whether the 1

st

Defendant was in breach of said contract by failing to pay to the Plaintiffs the amounts due to them. The Plaintiffs have already admitted to having been paid the sum of

Kshs. 108,212,500/-

by the 1

st

Defendant.

PW1

insists that this payment was a separate payment for other contracts and have no bearing on the

Kshs. 129,730,000/-

which the Plaintiffs claim from the 1

st

Defendant in this suit.

(24) However the Plaintiffs did not avail documentation to prove which invoices had been paid and which ones remained unpaid. All that

PW1

would say is that the relevant invoices had been sent to the 1

st

Defendant. The list of Pending Bills at

page 102

of the Plaintiffs Supplementary Bundle of Documents indicate that as at

30

th

June 2017

, the Plaintiffs were owed the sum of

Kshs. 167,180,000/-.

PW1

admitted that the Plaintiffs have received some monies to offset this amount – this can only be the

Kshs. 108,212,500

/- which the Plaintiffs admit to having received. Accordingly the balance owed to the Plaintiffs is

Kshs. 167,180,000/-

less the

Kshs. 108,212,500/-

already paid =

Kshs. 58,967,500/-

. I therefore find that the Plaintiffs have proved their claim only to the extent of

Kshs. 58,967,500/-.

(25) In the Plaint the six (6) Plaintiffs each claimed a specific amount as due and owing from the 1

st

Defendant. However the Plaintiffs did not indicate or prove to the Court particulars of how the paid amount of

Kshs. 108,212,500/-

was apportioned between the six (6) Plaintiffs. Accordingly I do enter Judgment in favour for the Plaintiffs jointly in the sum of

Kshs. 58,967,500/-

plus interest at Court rates from the date of filing of suit until payment in full.

Each party to bear its own costs for this suit.

Dated in Nairobi this 26

th

day of February, 2021.

..........................................

MAUREEN A. ODERO

JUDGE