OFFICE OF THE COUNTY ATTORNEY

WEST POKOT COUNTY

P.O BOX 63 - 30600

KAPENGURIA

15TH February, 2023

THE COUNTY GOVERNMENT OF WEST POKOT

THROUGH THE MINISTRY OF HEALTH

COUNTY EXECUTIVE COMMITTEE MEMBER AND CHIEF OFFICER

DIRECTOR OF HEALTH WEST POKOT COUNTY

P.O BOX 63 - 30600

KAPENGURIA

Dear Sir/Madam,

RE: LEGAL OPINION ON THE SUPPY AND DELIVERY OF

PHARMACEUTICALS, NON – PHARMACEUTICALS, X-RAY, LAB PRODUCTS
AND DENTAL TENDER NO. CGWP/T/157/2021-2022

We refer to the meeting held on 14/02/2023 with the Chief Officer health and proceed to
proffer you with our favourable legal opinion based on the facts you provided us with.

BRIEF FACTS

The county government advertised for the tender of supply of pharmaceuticals, non -
pharmaceuticals, x-ray, lab products and dental vide tender number CGWP/T/157/2021-
2022 and Lomut Kenya Limited was awarded the tender. The company delivered the
commodities on 12th October, 2022 and the same were received by your personnel Boaz
Pkopus and stamped thereof.

On the 5th day of December, 2022, the County Executive Committee Member and the Chief
Officer for Health visited the county store to inspect the commodities and the following are
the committee’s findings:

1. The supplier did not deliver all the commodities as per the contract.

2. Commodities supplied were over-priced and those not supplied were under-quoted.
3. Commodities meant to be delivered through cold chain were not packaged as
required.

4. Commodities not meant to be substituted were substituted.

Through a letter dated 9th of January, 2023, the committee rejected the contract based on the
findings above.

LEGAL ISSUES

The following are the issues that arise from your case:

1. Whether there was breach of contract from Lomut Kenya Limited.

2. Whether the county was justified to reject the supplies.

RULE OF LAW APPLICABLE

1. The Constitution of Kenya, 2010.

2. The Law of Contract Act.

3. The Sale of Goods Act.

4. The Public Procurement and Disposal Act.

5. Consumer Protection Act.

6. The Public Finance Management Act.

APPLICATION OF THE RULES TO THE ISSUES

1. Whether there was breach of contract from Lomut Kenya Limited.

As per the Law of Contract Act Cap 23 Laws of Kenya, a contract is defined as a legal
binding agreement made by two or more parties and in case of breach of either party, the law
provides a remedy.

Lomut Kenya Limited entered into a binding agreement with the county government of West
Pokot for the supply and delivery of pharmaceuticals, non – pharmaceuticals, x-ray, lab
products and dental vide tender number CGWP/T/157/2021-2022 on the.............2022.

The same supplies were delivered on the 12th October, 2022 and upon inspection of the same
of the 5th day of December, 2022, by the county medical team, it was established that the
commodities supplied did not meet the threshold as per the contract.

Going by the committee findings, Lomut Kenya Limited breached the contract by:

a) Misrepresentation
Under the Law of Contract Act, misrepresentation is a statement of fact that is not true and
that persuades someone to enter into a contract.

Lomut Kenya Limited misrepresented itself so as to be awarded the tender through under
quoting and over quoting of some commodities. Commodities which were over quoted were
all the delivered while those under quoted were not supplied, with the intention to deceive the
county government into awarded the company in question the tender.

In reference to Section 2 of the Sale of Goods Act Cap 31 Laws of Kenya, a thing is
deemed to be done in good faith within the meaning of this Act, when it is in fact done
honestly.

The contract was for the supply of specific or ascertained commodities. Commodities which
were to be delivered through cold chain were not, thus the county government can sue
through counterclaim for specific performance of the contract.

Under Article 46 of the Constitution of Kenya, 2010, consumers have a right to good and
services of reasonable quality and the supply of the commodities in a manner that affects the
quality of the products, poses a threat to the end users. The rejection of the same by the
county government is therefore legal.

2. Whether the County was justified to reject the goods.

Under Section 35 (1) of the Sales of Good Act the buyer has a right of examination of
goods and it states as follows

(1) Where goods are delivered to the buyer which he has not previously examined he is
not deemed to have accepted them unless and until he has a reasonable opportunity of
examining them for purpose of ascertaining whether they are in conformity with the
contract.

(2) Unless otherwise agreed, when the seller tenders delivery of goods to the buyer, he is
bound on request, to afford the buyer a reasonable opportunity of examining the goods
for the purpose of ascertaining whether they are in conformity with the contract.

The visit by the health officials in the store to ascertain the goods delivered by Komut was
legal and as per the findings of the county health team not all goods ordered were supplied.

The inspection committee has the right to ensure that the correct quantities of goods are
received and ensure that they meet the standards defined by the contract. The county
government is at liberty to reject the goods supplied .The end users life should not be put at
stake as per Article 46 of the Constitution of Kenya 2010.

The County Government is justified to repudiate the contract as

Conclusion
With the foregoing the County Government of West Pokot is justified to repudiate the
contract and Lomut Kenya Limited is at liberty to explore other avenues as the County
Government did due diligence on its part and it is at liberty to reject the contract.