A decades-old construction dispute has dealt Moi University another legal setback after the Court of Appeal shut down its attempt to secure more time to challenge an award involving Vishva Builders Ltd.
The three-judge appellate bench ruled that the university had failed to give a convincing reason for missing the deadline for filing and serving its notices of appeal.
Moi University had asked the court to extend the period, blaming the delay on a change of legal representation that followed the High Court judgment. The institution said it had also relied on its former advocates’ assurance that the necessary requirements had been fulfilled.
The explanation did not persuade the appellate judges. They found that the university took no corrective action even after it was made aware that the notices it had lodged were defective.
"The judge arrived at a well-reasoned decision backed by the law and facts as presented before him," the judges said.
In its application, the university argued that the High Court judge had concentrated on the shortcomings in its notices of appeal without giving adequate consideration to other factors.
Among the issues the institution wanted considered were the prejudice that could be suffered by the contractor and the public interest involved in the dispute.
Vishva Builders opposed the university’s request and described it as frivolous. The contractor also told the court that Moi University had admitted the debt during the High Court proceedings.
The legal battle arises from a construction agreement entered into in 1990 for the development of the Faculty of Science Complex at the university’s main campus in Eldoret.
The project was expected to be funded by the National Treasury. Its initial cost was Sh547.7 million before the parties negotiated the figure down to Sh476.3 million.
Under the agreement, Vishva Builders was cleared to commence the works immediately, with December 31, 1992 set as the completion date.
The construction was, however, interrupted after the university experienced financial difficulties. Following the issuance of seven interim certificates, the institution instructed the contractor to suspend the works.
The project was stopped in April 1991, with the parties eventually agreeing to bring the contract to an end in November 1999.
Vishva Builders has maintained that it was prepared to finish the project but was prevented from doing so because the university had not paid money that had already been certified as due.
Moi University disputed the contractor’s position, pointing out that it had paid Sh57.2 million based on the interim certificates.
The institution further said it had released Sh6.3 million as a retention sum.
According to the university, its financial position made it impossible to proceed with the project, and only about nine per cent of the construction work had been completed by the time the project was stopped.
The dispute has since grown into a Sh1.25 billion legal battle, with the latest Court of Appeal ruling leaving the university without the extension of time it had sought to pursue its challenge against the award in favour of Vishva Builders.