Blue Sea Services Ltd v Kenya Power & Lighting Company Ltd (Constitutional Petition E060 of 2024) [2026] KEHC 12116 (KLR) (31 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MOMBASA** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **CONSTITUTIONAL PETITION NO. E 060 OF 2024** **BLUE SEA SERVICES LIMITEDPETITIONER** **VERSUS** **KENYA POWER & LIGHTING COMPANY LIMITEDRESPONDENT** **JUDGMENT** **Introduction** 1. By a petition dated 19 September 2024 presented under the Constitution of Kenya (Protection of Rights and Fundamental Freedoms of Individual) Practice and Procedure Rules, 2013, the petitioner, **Blue Sea Services Limited**, has moved this court on the strength of Articles 10, 22, 23, 47 and 50 of the Constitution; sections 67, 74 and 175 of the Public Procurement and Asset Disposal Act, 2015; and, sections 3, 4, 7 and 8 of the Fair Administrative Action Act, 2015. The petition impugns the manner in which the respondent, **Kenya Power & Lighting Company Limited**, conducted a public tender process in the year 2013 and, principally, seeks declaratory relief and an order for compensation for loss of profits in the sum of Kshs. 2,135,251.20 together with interest thereon. 2. The petition is supported by the affidavit of Benson Nyangeh Maina, a director of the petitioner duly authorised by a board resolution, sworn on 19 September 2024. Annexed to the affidavit are, among other documents, the tender documents, the tender opening registers, the letters by which the outcome of the tenders was communicated, and the decisions rendered in earlier proceedings between the same parties over the same subject matter. **Background** 3. The facts from which the petition arises are, for present purposes, not in controversy and may be shortly stated. In January 2013 the respondent floated two tenders, namely, Tender No. KPI/5DA/QT/32/12-13 for the service and maintenance of air conditioning units in the Coast Region, and Tender No. KPI/5DA/QT/33/12-13 for the proposed supply, installation, testing and commissioning of air conditioning units for the Coast Region. The petitioner, which had been prequalified as one of the respondent's suppliers by a letter dated 5 February 2013, participated in both tenders and, as a condition precedent to participation, furnished tender security by way of a bank guarantee issued by Giro Commercial Bank Limited. The tenders were opened on 7 February 2013 in the presence of the participating bidders, the petitioner included. 4. It is the petitioner's case that upon the opening of the tenders it emerged as the lowest prequalified bidder and that it thereby acquired a legitimate expectation that it would be awarded the tenders or, at the very least, that it would be duly notified of the outcome of the tender process as required by law. 5. The petitioner's grievance is threefold: first, that the respondent failed to notify it of the outcome of the tenders; secondly, that the respondent instead addressed the letters communicating the outcome, dated 1 August 2013 and 7 August 2013, to an entity described therein as “Blue Shield Services Limited” which, according to the petitioner, is an unrelated third party bearing no legal, commercial or operational association with it; and, thirdly, that the respondent proceeded to award the tenders to M/s Panascho Limited, a bidder which, it is contended, was not the lowest. The petitioner characterises the misdirection of the notification as a deliberate and calculated manoeuvre intended to frustrate its ability to seek a review of the tender process within the time limits prescribed under the public procurement law. 6. Aggrieved by the foregoing, the petitioner filed *Mombasa CMCC No. 69 of 2014, Blue Sea Services Limited v Kenya Power & Lighting Company Limited* on 20 January 2014 in which it sought, in damages, the very sum now claimed in this petition. The respondent raised a preliminary objection to the jurisdiction of the subordinate court founded on the dispute resolution mechanism prescribed by the Public Procurement and Disposal Act, 2005. By a ruling delivered on 21 July 2015 the learned trial magistrate upheld the objection and struck out the suit, holding that: *“Upshot is that since there is a dispute mechanism established by statute and such mechanism has not been explored, this court lacks jurisdiction to hear and determine the dispute herein and proceeds to dismiss this suit for want of jurisdiction.”* 7. The petitioner appealed to this court in *Mombasa High Court Civil Appeal No. 120 of 2015*. The appeal was dismissed on 27 August 2020. The petitioner nonetheless asserts that, in dismissing the appeal, the court observed that its claim ought to have been pursued before the High Court rather than the subordinate court; it is on the strength of that observation that the present petition has been mounted. The petitioner further deposes that its grievance has never been determined on the merits, the earlier proceedings having been terminated on what it terms the technicality of jurisdiction. 8. In the petition, the petitioner prays for the following orders: a declaration that the respondent's actions, including the misdirection of the tender notifications and the subsequent award of the tenders to an undeserving bidder, violated its constitutional rights under Articles 47 and 50 of the Constitution; a declaration that the respondent's actions contravened sections 67 and 74 of the Public Procurement and Asset Disposal Act, 2015 and sections 3, 4, 7 and 8 of the Fair Administrative Action Act, 2015; an order directing the respondent to compensate the petitioner for loss of profits in the sum of Kshs. 2,135,251.20 with interest at court rates from 7 February 2016 until payment in full; in the alternative, general damages for the violation of its fundamental rights; and, the costs of the petition. **The Preliminary Objection** 9. Upon being served, the respondent raised a preliminary objection to the petition. The gravamen of the objection is that the dispute the subject of the petition arose out of a tender process and that, this being so, the petitioner was enjoined to invoke the review and appellate mechanisms prescribed under the public procurement legislation before approaching this court; that the petition offends the doctrine of exhaustion of statutory remedies and the related doctrine of constitutional avoidance; and that, in consequence, this court is without jurisdiction to entertain it. 10. When the matter came up for directions, it was directed that the objection be canvassed and determined as a preliminary issue, it being self-evident that the objection, if upheld, would dispose of the petition in its entirety without the need to interrogate its merits. The objection was canvassed by way of written submissions which I have read and considered together with the petition, the supporting affidavit and the annexures thereto, and the authorities cited by counsel. **Issues for determination** 11. Three questions fall for determination: first, whether the objection raised is a proper preliminary objection; secondly, if so, whether the petition is barred by the doctrine of exhaustion of statutory remedies and the doctrine of constitutional avoidance; and, thirdly, whether any recognised exception to those doctrines avails the petitioner. **Whether the objection is a proper preliminary Objection** 12. The nature of a preliminary objection was authoritatively settled in *Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696* where Law, JA stated: *“So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of the pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”* 13. In the same decision, Sir Charles Newbold, P added that: *“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”* 14. Measured against that standard, the respondent's objection is a proper preliminary objection. It proceeds entirely on the facts pleaded by the petitioner itself. The petition, on its face, states that the dispute arises out of the petitioner's participation in the two tenders floated by the respondent in 2013; indeed, the petitioner has expressly anchored its claims on provisions of the procurement statute. No fact requires to be ascertained, and no exercise of discretion is invited. The objection raises a pure point of law going to the jurisdiction of this court, and an objection to jurisdiction may be taken at any stage of the proceedings and, once taken, must be resolved at the earliest opportunity. As Nyarangi, JA memorably put it in *Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Limited [1989] KLR 1*: *“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”* **The applicable statutory regime** 15. A preliminary observation on the applicable statute is necessary. The events complained of occurred in 2013. The statute then in force was the Public Procurement and Disposal Act, 2005. The Public Procurement and Asset Disposal Act, 2015, upon which the petition is anchored, commenced on 7 January 2016 and does not apply retrospectively to the impugned tender process. Nothing, however, turns on this distinction for purposes of the objection before me, because both statutes prescribe a materially identical dispute resolution mechanism, and the respondent's objection is good under either regime. 16. Section 93(1) of the Public Procurement and Disposal Act, 2005 provided as follows: *“Subject to the provisions of this Part, any candidate who claims to have suffered or to risk suffering, loss or damage due to the breach of a duty imposed on a procuring entity by this Act or the regulations, may seek administrative review as in such manner as may be prescribed.”* 17. The forum for such review was the Public Procurement Administrative Review Board continued under section 25(1) of that Act, a specialised tribunal clothed with wide remedial powers, including the power to annul anything done by a procuring entity in the procurement proceedings, to give directions to the procuring entity, and to substitute its own decision for that of the procuring entity. The decisions of the Review Board were, in turn, amenable to the supervisory jurisdiction of the High Court by way of judicial review. The scheme was thus complete: a specialised forum of first instance, with recourse to this court thereafter. 18. The Act of 2015 replicates the same architecture in Part XV. Section 167(1) thereof entitles a candidate or tenderer who claims to have suffered, or to risk suffering, loss or damage due to the breach of a duty imposed on a procuring entity by the Act or the Regulations to seek administrative review before the Review Board within fourteen days of notification of the award or of the occurrence of the alleged breach at any stage of the procurement process. Section 175(1) then provides that a person aggrieved by a decision of the Review Board may seek judicial review by the High Court within fourteen days of that decision, failing which the decision of the Review Board is final and binding on the parties. It is not without significance that section 175 is one of the very provisions which the petitioner has pleaded in the title to its petition: the petitioner is, on its own pleading, alive to the mechanism. **The doctrine of exhaustion of statutory remedies** 19. The principle that a litigant must exhaust a dispute resolution mechanism prescribed by statute before invoking the jurisdiction of the courts is of long standing. In *Speaker of the National Assembly v James Njenga Karume [1992] KLR 21* the Court of Appeal held that: *“…where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.”* 20. The principle was restated in *Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others [2015] eKLR* where the Court of Appeal held that: *“It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…”* 21. That, as it happens, is the very authority upon which this court relied in dismissing the petitioner's appeal in Civil Appeal No. 120 of 2015. The doctrine has since received statutory expression in section 9(2) of the Fair Administrative Action Act, 2015, which provides that: *“The High Court or a subordinate court under subsection (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.”* 22. Under section 9(3) of the same Act, the court, if not satisfied that the available remedies have been exhausted, is enjoined to direct that they first be exhausted. The irony will not be lost on the parties that the Fair Administrative Action Act is one of the statutes upon which the petitioner has founded this petition; the very statute it invokes commands exhaustion of the mechanism it has bypassed. 23. Finally, in *William Odhiambo Ramogi & 3 Others v Attorney General & 4 Others; Muslims for Human Rights & 2 Others (Interested Parties) [2020] eKLR*, a five-judge bench of this court sitting at Mombasa comprehensively restated the doctrine and its exceptions, holding, in material part, that: *“The first principle is that the High Court may, in exceptional circumstances, consider, and determine that the exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it.”* 24. The bench emphasised, however, that this exception is to be sparingly invoked, and that the party seeking to be exempted from the exhaustion requirement bears the burden of demonstrating, with specificity, the exceptional circumstances relied upon, including that the statutory forum is unsuitable or incapable of determining the questions raised, or that the remedy it offers is inadequate or ineffectual. **Application of the doctrine to the petition** 25. Measured against these principles, the petition cannot survive the objection. Every complaint pleaded in the petition; the alleged failure to notify the petitioner of the outcome of the tenders, the misdirection of the notification letters, the award of the tenders to a bidder said not to have been the lowest, and the alleged want of transparency, fairness and accountability in the process — is, in substance, a complaint that the respondent, a procuring entity, breached duties imposed upon it by the procurement statute. The notification of the outcome of a tender and the criteria governing evaluation and award are matters regulated in minute detail by that statute; indeed, the petitioner itself pleads sections 67 and 74 of the Act of 2015 — provisions of the procurement statute — as the source of the duties allegedly breached. Such complaints fall four-square within the ambit of section 93(1) of the Act of 2005 and, if the petitioner's own choice of statute is taken, section 167(1) of the Act of 2015. They were, in either case, complaints for the Review Board in the first instance. 26. There is nothing novel in this conclusion as concerns this very respondent. In *Republic v Kenya Power & Lighting Company Ltd & Another [2013] eKLR*, cited in the ruling of the subordinate court which forms part of the petitioner's own annexures, the Court of Appeal observed of the Review Board that: *“The Review Board is a specialised statutory tribunal established to deal with all complaints of breach of duty by the procuring entity… From its nature the Review Board is obviously better equipped than the High Court to handle disputes relating to breach of duty by a procurement entity. It follows that its decision in matters within its jurisdiction should not be lightly interfered with…”* 27. It is common ground that the petitioner has never, at any point in the twelve years that this dispute has been alive, approached the Review Board. It did not do so in 2013 when the tenders were awarded; it did not do so in January 2014 when, on its own pleading, it was sufficiently seized of the outcome of the tenders to plead that outcome in an ordinary suit for damages; and it has not done so since. Instead, it filed an ordinary civil suit, which was struck out for want of jurisdiction; it appealed, and the appeal was dismissed; and it has now presented the same grievance, seeking the same sum of money, in the garb of a constitutional petition. This is the third attempt to litigate a procurement dispute in a forum other than the one Parliament prescribed for it. 28. The petitioner's answer is that it could not invoke the review mechanism because it was never notified of the outcome of the tenders within the time limited for seeking review. The answer is unavailing, for two reasons. First, the alleged failure to notify was itself a breach of a duty imposed on a procuring entity by the procurement statute and was, for that reason, itself a proper subject of complaint before the Review Board; the forum in which to ventilate the grievance of non-notification, and any consequential question of time, was the statutory forum, not an ordinary suit for damages. Secondly, on the petitioner's own showing it was fully aware of the outcome of the tenders by 20 January 2014 at the very latest, when it filed suit pleading that outcome; and I note in passing, without making any finding on the point since none is necessary, that the letters of 1 August 2013 and 7 August 2013 which the petitioner has itself exhibited were addressed to Post Office Box Number 81987, Mombasa — the very postal address that appears on the petitioner's own letterhead — albeit in the name of “Blue Shield Services Limited”. Even upon acquiring full knowledge of the outcome, the petitioner elected not to move the Review Board. A party cannot found an exemption from the exhaustion doctrine upon the consequences of its own election. 29. There is a broader point of principle. If a disappointed tenderer could, by simply allowing the statutory timelines to lapse, thereafter present its grievance to the High Court at large — whether as an ordinary suit or as a constitutional petition — the statutory mechanism would be rendered optional and the timelines meaningless. The exhaustion doctrine exists precisely to prevent that result. Public procurement disputes are, by legislative design, required to be resolved expeditiously before a specialised tribunal while the procurement is capable of correction; they are not to be converted, years after the event, into open-ended claims for lost profits. **The doctrine of constitutional avoidance** 30. The respondent's objection also invokes the doctrine of constitutional avoidance, and rightly so. The Supreme Court in *Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] eKLR* explained the doctrine thus: *“The principle of avoidance entails that a court will not determine a constitutional issue, when a matter may properly be decided on another basis.”* 31. The doctrine traces its lineage to the decision of the South African Constitutional Court in *S v Mhlungu 1995 (3) SA 867 (CC)* where Kentridge, AJ laid it down as a general principle that: *“…where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.”* 32. It is the substance of a claim, and not the form in which it is clothed, that determines its true character. The gravamen of this petition is a commercial procurement dispute: the petitioner claims a precise, liquidated sum of Kshs. 2,135,251.20 as the profit it says it lost when the tenders were not awarded to it, with interest from 7 February 2016. The declarations sought under Articles 10, 47 and 50 of the Constitution are but the vehicle by which that monetary end is pursued. Invoking the Constitution does not transmute a procurement dispute into a constitutional cause; were it otherwise, every disappointed bidder would sidestep the Review Board by the simple expedient of pleading Articles 10, 47 and 50, and the mechanism which Parliament deliberately fashioned for the expeditious resolution of procurement disputes would be reduced to a dead letter. 33. Nor do the constitutional provisions invoked assist the petitioner. Article 47 of the Constitution has been operationalised through the Fair Administrative Action Act, 2015, and, as already observed, section 9(2) of that Act itself commands exhaustion of available statutory remedies; the petitioner's reliance on the Article therefore leads back to the very mechanism it has bypassed. As for Article 50, the right to have a dispute resolved by the application of law in a fair hearing is not abridged by requiring that the dispute be commenced in the forum which the law prescribes; the Review Board, and thereafter this court in the exercise of its supervisory jurisdiction, are precisely such fora. The questions the petition poses — whether the petitioner was notified as the statute requires, and whether the award was made to the wrong bidder — are quintessentially statutory questions capable of resolution without recourse to the Constitution. The doctrine of avoidance therefore applies with full force. 34. I have considered the petitioner's reliance on the observation said to have been made in Civil Appeal No. 120 of 2015 to the effect that its claim ought to have been pursued before the High Court rather than the subordinate court. Two answers dispose of the argument. First, that appeal was dismissed; the decision affirmed, rather than displaced, the holding that the statutory mechanism ought to have been exhausted, and any observation as to the High Court must be understood in its proper context as a reference to this court's supervisory role within the statutory scheme, and not as a licence to originate, years later, a plenary claim for damages dressed as a constitutional petition. Secondly, and in any event, jurisdiction is conferred by the Constitution and by statute, and by nothing else. As the Supreme Court held in *Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR*: *“A court's jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.”* 35. Neither a judicial observation made in passing nor the election or consent of the parties can confer upon this court a jurisdiction which the law has channelled elsewhere in the first instance. 36. The petitioner's lament that its grievance has never been determined on the merits does not alter this conclusion. The reason the grievance has never been determined on the merits is that the petitioner has, at every turn over more than a decade, selected a forum other than the one prescribed by statute. The exhaustion doctrine is not suspended by the consequences of a litigant's own persistent procedural elections; to hold otherwise would be to reward the very conduct the doctrine exists to discourage. **Whether any exception avails the petitioner** 37. Applying the test in *William Odhiambo Ramogi* (supra), I find no exceptional circumstances that would justify exempting this petition from the exhaustion requirement. None was pleaded with any specificity. The remedy before the Review Board was adequate and effective: the Board was empowered to annul the impugned proceedings, to direct the procuring entity, and to substitute its own decision, with recourse thereafter to this court. The constitutional questions pleaded are neither novel nor incapable of resolution through the statutory route; as I have endeavoured to show, they are statutory questions in constitutional dress. No application for exemption was made under section 9(4) of the Fair Administrative Action Act, 2015, and no material was placed before me upon which such an exemption could conceivably have been granted. 38. I would only add, though it is unnecessary to rest this decision on the point, that the events complained of occurred in 2013 and the present petition was presented in September 2024, more than eleven years later. While claims of constitutional violation are not subject to a fixed statutory limitation period, it is well settled that they must be brought within a reasonable time, and inordinate and unexplained delay is a consideration that would, in any event, have weighed heavily against the exercise of this court's jurisdiction in the petitioner's favour. **Disposition** 39. The upshot is that the preliminary objection is merited. The dispute the subject of this petition arose out of a tender process. The petitioner was, accordingly, enjoined to invoke the review and appellate mechanisms prescribed under the public procurement legislation — the Public Procurement and Disposal Act, 2005 as at the material time and, on the petitioner's own reckoning, the Public Procurement and Asset Disposal Act, 2015 — before approaching this court. It did not. The petition offends both the doctrine of exhaustion of statutory remedies and the doctrine of constitutional avoidance, and this court is, in consequence, without jurisdiction to entertain it. In keeping with the injunction in *Owners of the Motor Vessel “Lillian S”* (supra), the court must down its tools. 40. Having so found, it is neither necessary nor, indeed, permissible to venture into the merits of the petition, and I decline to do so. Accordingly, I make the following orders: (a) The respondent's preliminary objection is hereby upheld; (b) The petition dated 19 September 2024 is hereby struck out for want of jurisdiction; and, (c) The petitioner shall bear the costs of the petition. It is so ordered. **Signed, dated and delivered on 31 July 2026** Ngaah Jairus **JUDGE**