Working with government can create real public value, particularly during elections, emergencies and major service-delivery programmes. Public sector work is not an ordinary commercial arrangement, as the Court of Appeal’s decision in Royal Media Services Ltd. vs Independent Elections & Boundaries Commission (IEBC) & 3 others, Civil Appeal No. 239 of 2019, [2026] KECA 1537 (KLR), demonstrates. Even valuable work requested by senior officials may go unpaid if the procurement process was unlawful.Season to pay Tax and Budget planning concept. Businessman calculating annual tax and using mobile phone. calculator, personal income tax form, laptop, report placed on home office desk.

A Genuine Public Benefit is not Enough  

The dispute arose from a nationwide voter mobilisation campaign in December 2012. After discussions with senior officials, including the then IEBC Chairperson and the Minister for Finance, Royal Media Services rolled out radio, television and roadshows before voter registration closed and later invoiced KSh182 million.  

The booking sheets bore IEBC stamps, and the trial court accepted that the services had been delivered. The Court of Appeal, however, held that performance could not substitute for the procurement steps required before committing public money. The result may seem harsh, but competition, transparency, accountability and value for money protect public funds from informal or poorly scrutinised commitments. A deal may make commercial sense yet remain unenforceable because the process behind it was unlawful.  

Compliance: A Risk Shared  

Suppliers often assume that procurement compliance is the public entity’s responsibility. The Court rejected that view because section 27 of the Public Procurement and Disposal Act, then in force, extended compliance obligations to contractors, suppliers and consultants. A meeting, a stamp, an email or a verbal assurance may show that an official wanted the work done, but it does not prove that a lawful commitment was made. 

 Direct procurement may have been available given the time constraints, although it still required approval, documentation, negotiations and a written contract, none of which were present in this case.  

Urgency, Invoices and Quantum Meruit  

Urgency changes the route, not the law. Where emergency or direct procurement is permitted, that route must still be identified, authorised and recorded. Therefore, “we will regularise the paperwork later” should be treated as a warning.  

Likewise, stamped booking sheets and invoices proved that work had been carried out, but they were not the written contract the framework required. The safest rule is never to let performance outstrip legal authority.  

Royal Media also argued for reasonable payment on a quantum meruit basis. The Court accepted that the doctrine could apply in suitable cases, but held that equity cannot circumvent an express statutory prohibition, so illegality barred recovery. Useful work will not automatically attract reasonable compensation.  

Due Diligence Before Delivery  

Companies should therefore build a compliance gateway for government work, confirming at a minimum the procuring entity, authorised decision-maker, procurement method, approvals, available budget and the governing document.  

Exceptional routes deserve greater scrutiny, not less, because urgency can make informal assurances appear more reliable than they are.  

This is particularly relevant to media campaigns, technology deployments, professional services and crisis-response work. The answer is not to walk away but to establish the legal basis for the commission, so that the key question becomes “What lawful authority underpins that request?” rather than “Who asked us to do this?”  

A Stricter but Healthier Discipline  

The public received the campaign’s benefit while the supplier incurred the loss, and in a single transaction that outcome may feel unforgiving.  

As a matter of public policy, however, it reinforces the principle that public money cannot be committed on the basis of trust, urgency, or the apparent authority of a single official. Public entities need controls that allow genuine urgent needs to move quickly within the law, while suppliers must treat compliance as a commercial risk, subject to legal review and included in the risk register.  

The message from the Royal Media Services case is not that businesses should avoid government work, but that they must be more rigorous about how the relationship begins. Public sector opportunity is not the same as public sector authority, and the costliest mistake may be winning the work, delivering it, issuing an invoice, and then discovering that no enforceable contract ever existed.