Moi University has suffered a setback in its long-running Sh1.25 billion dispute with a contractor after the Court of Appeal declined to extend time for the institution to challenge an award in favour of Vishva Builders Limited.
A three-judge bench dismissed the university’s application, finding that it had failed to give a satisfactory explanation for its failure to file and serve notices of appeal within the prescribed period.
The university admitted that its notices were not served on time, blaming the delay on a change of advocates after the High Court judgment and reliance on an assurance from its previous lawyers that all court requirements had been met.
However, the appellate court noted that even after the university was informed that its notices were defective, it took no steps to rectify the situation.
“The learned Judge arrived at a well-reasoned decision backed by the law and facts as presented before him,” the judges said.
The entrance to Moi University's main campus in Kesses, Uasin Gishu County.
Photo credit: Jared Nyataya | Nation Media Group
Moi University had argued that the judge who handled the matter selectively considered the defects in its notices of appeal while failing to consider other factors, including its chances of succeeding in the intended appeal, the prejudice to the contractor and public interest.
Vishva Builders opposed the application, describing it as frivolous and arguing that the university had admitted the debt during proceedings before the High Court.
The dispute dates back to a contract signed in 1990 for the construction of the Faculty of Science Complex at Moi University’s main campus in Eldoret.
The government-sponsored project was to be financed by the National Treasury, with the works including construction of the faculty buildings and ancillary external works.
The contractor was authorised to commence work immediately, with the project scheduled to take 130 weeks and be completed by December 31, 1992.
However, the university ran into financial difficulties and, after seven interim certificates had been issued, asked the contractor to stop the works.
The works were halted in April 1991, and the parties subsequently agreed to wind up the contract in November 1999.
Vishva Builders told the court it had remained ready and willing to complete the project, but the university had failed to pay sums certified as due.
The university said it had paid Sh57.2 million under interim certificates, together with a Sh6.3 million retention sum.
The main entrance to Moi University in Kesses, Uasin Gishu County.
Photo credit: Jared Nyataya | Nation Media Group
It also admitted that it lacked the funds to complete the project and that only about nine per cent of the works had been undertaken.
The university, however, disputed the contractor’s claim, arguing that it was entitled to cancel the interim certificates because the contractor had only completed the substructure of a four-storey building.
In 2002, the High Court entered summary judgment in favour of Vishva Builders, but the Court of Appeal later overturned the decision and sent the matter back for a fresh hearing.
In 2015, the case was dismissed for want of prosecution but was later reinstated in 2019 and handled by two other judges before the High Court eventually ruled in favour of the contractor.
The judge described the dispute as an example of a court case having the proverbial “nine lives” and directed the university to pay Sh185.3 million arising from the botched contract.
In February, the High Court gave Moi University 30 days to pay the amount, failing which 69 of its bank accounts would be attached.
The university challenged the attachment, particularly the interest component of the debt, arguing that the case had been dismissed for want of prosecution in 2015 and remained dormant until its reinstatement in 2019.
