Wakilii

Kamusa & Sons Enterprises v Koboko District Local Government (Civil Suit No. 0010 of 2008)

High Court · [2011] UGHC 147 · 2011 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil suit for declarations and damages following unfair procurement process
Decision
Judgment entered for the plaintiff with declarations that the plaintiff was unfairly treated and was the best evaluated bidder. Contract awarded to Bomak Traders Ltd declared a nullity. General damages and costs awarded to the plaintiff.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court held that the procurement process violated Article 42 of the Constitution by denying the plaintiff a fair hearing. The Administrative Review Committee was improperly constituted, with a member who had been listed as a referee by the winning bidder. The plaintiff was the best-evaluated bidder based on the Public Procurement Authority's findings. The contract awarded to Bomak Traders Ltd was a nullity. The court awarded general damages of UGX 78,856,000 but declined exemplary damages for failure to plead them.

Outcome

Judgment entered for the plaintiff with declarations that the plaintiff was unfairly treated and was the best evaluated bidder. Contract awarded to Bomak Traders Ltd declared a nullity. General damages and costs awarded to the plaintiff.

Facts

Koboko District Local Government awarded the plaintiff a contract to manage its Grade A market for the 2006/2007 financial year. When the contract expired, the defendant advertised a tender. Three firms applied, including the plaintiff, which increased its bid from UGX 4,600,000 to UGX 6,200,000. The defendant awarded the contract to Bomak Traders Ltd. The plaintiff complained to the Administrative Review Committee (ARC), which confirmed Bomak's award. The plaintiff then complained to the Public Procurement and Public Assets Disposal Authority (PPDA), which found in the plaintiff's favour and directed the process be halted. The defendant ignored the directive and executed the contract with Bomak Traders Ltd. The plaintiff instituted this civil suit for declarations and damages.

Issues

  1. Whether the bidding process was free and fair.
  2. Whether the plaintiff was the best evaluated bidder.
  3. Whether the defendant's conduct of awarding the contract to Bomak Traders Ltd caused any grievance or damage to the plaintiff.
  4. What remedies should be awarded to the parties.

Orders

  • It is declared the plaintiff was unfairly treated by the defendant as an administrative body contrary to Art. 42 of the Constitution.
  • The plaintiff was the best evaluated bidder for the contract award to run the defendant's market.
  • The defendant shall pay to the plaintiff general damages of UGX 78,856,000 with interest at court rate of 8% from the date of judgment to the date of payment in full.
  • Although this case deserved an award of exemplary damages the same has not been awarded since it was not pleaded.
  • The defendant shall pay the costs of the suit to the plaintiff.

Rules and key headnotes

Fair Procedure — Right to be Heard — Constitutional Requirement under Article 42
Any person appearing before an administrative official or body has a right to be treated justly and fairly and has a right to apply to a court of law in respect of any administrative decision taken against him or her. An administrative body that considers a complaint in the complainant's absence and without notification denies a fair hearing contrary to Article 42 of the Constitution.
Bias — Adjudicator's Disqualifying Interest — Referee Relationship
An adjudicator who has been listed as a referee by a bidding company is disqualified from sitting on a review committee where a complaint has been raised against that company. The presence of bias means that the tribunal is improperly constituted and has no power to determine the case, rendering its decision void and a nullity.
Public Procurement — Contract Definition — Compliance with Statutory Procedure
Under the Public Procurement and Disposal of Public Assets Act 2003 section 4, a contract is defined as an agreement between a procuring entity and a provider resulting from the application of approved procurement procedures. Once the Public Procurement Authority halts a procurement process, any contract executed thereafter is not a valid contract under the Act.
Damages — Special Damages — Strict Proof Requirement
Special damages must be specifically pleaded and strictly proved. Speculative evidence as to what a plaintiff would have earned in a good season or bad season, without concrete figures, falls below the standard required for proof of special damages and cannot support an award.
Damages — General Damages — Loss of Earnings
Where a plaintiff fails to strictly prove loss as special damages, the court may consider the same loss in general damages. Pre-trial loss of earnings may be left to the trial court for assessment together with post-trial loss as part of general damages, provided the actual earning or income at the time of loss is proved.
Damages — Assessment — Adjustment for Inflation
In assessing damages, the court ought to take into account the current value of money in terms of goods and services it can purchase at present, and may adjust the award upwards to reflect the decline in purchasing power.
Damages — Exemplary Damages — Pleading Requirement
A claim for exemplary damages must be specifically pleaded in the body of the plaint together with full particulars of the facts relied on, and not merely in the prayers. The defendant must be given prior notice and should not be taken by surprise. Failure to plead exemplary damages bars their award even where the conduct complained of warrants such an award.

Legislation cited (3)

Cases cited (8)

  • R v Hain (1896) 12 TLR 323
  • Captain Philip Ongom v Catherine Nyero Owota (Civil Appeal No. 14 of 2001)
  • Abednego Absolom Ongom v Amos Kaheru [1995] 111 KALR
  • Robert Cuossen v Attorney General (Civil Appeal No. 9 of 1999)
  • Matia Byabalema & Others v VTC (Civil Appeal No. 10 of 1993)
  • Joseph Lukwago v Attorney General (Civil Suit No. 1150 of 1988)
  • Uganda Breweries Ltd v Uganda Railways Corp Ltd (Civil Appeal No. 0006 of 2001)
  • RK Sasule v Makerere University [1975] HCB 391

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Kamusa & Sons Enterprises v Koboko District Local Government (Civil Suit No. 0010 of 2008) [2011] UGHC 147 (11 October 2011)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.