MIDADO COMMUNICATIONS LIMITED
V.
TOTAL KENYA LIMITED

JUDGMENT OF THE COURT

1. This is a first appeal by MIDADO COMMUNICATIONS LTD, the appellant herein, against the judgment and order of the High Court, Azangalala, J (as he then was), of 29^th November, 2007. In that judgment, the suit against the appellant by TOTAL KENYA LIMITED, who is the respondent herein, was allowed. The background to the appeal is that the appellant won a tender for the supply of 8000 metric tons of fuel oil at a unit price of KShs.16.70 per litre to Kengen Company Ltd (Kengen). The appellant and the respondent then entered into a contract dated 24^th August, 2000. According to the terms of that contract, the respondent agreed to supply fuel oil at the appellant's order to Kengen Kipevu Power Station at an agreed price of KShs.16.25 per litre.

2. On 14^th September, 2003, the respondent supplied fuel to Kengen at the appellant’s order. The respondent also supplied fuel to a third party, Triton Limited (Triton). Triton's supply was 1035.911 metric tons of fuel worth K…