[2023] KEHC 25448 (KLR)

Butende v Energy Petroleum Regulatory Authority Rural Electrification and Renewable & 3 others (Petition 11 of 2023) [2023] KEHC 25448 (KLR) (Judicial Review) (17 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25448 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Petition 11 of 2023

JM Chigiti, J

November 17, 2023

Between

Yashim Butende

Applicant

and

Energy Petroleum Regulatory Authority Rural Electrification And Renewable

1st Respondent

Energy Corporation

2nd Respondent

Ministry of Energy and Petroleum, State Department For Energy

3rd Respondent

Attorney General

4th Respondent

Ruling

1. In the Petition, dated 18th September, 2023, the Applicant had raised the following concerns:1. To the extent that the Respondents colluded to Award tender to unqualified firms in possession of Class C-1, Class C-2, instead of those in possession of Class A-1, Class A-2, in contravention of the Energy Act No. 1 of 2019, the electric power (electrical installation work) rules, 2006, in violation of the provisions of Article 10 of the Constitution 29 of Kenya which sets out the national values and principles of governance, particularly enjoining the Respondents to observe good governance, integrity, rule of law, non-discrimination, protection of the marginalized, transparency, accountability and sustainable development ;2. To the extent that the Respondents have unjustifiably awarded tenders to Class C-1, Class C-2, where only Class A-1, Class A-2 are applicable disadvantaging tenderers/suppliers from Class A-1, Class A-2, the Respondents are in violation of Article 27(1) of the Constitution which provides that every person is equal before the law and has the right to equal protection and equal benefit of the law and Article 27(2) of the Constitution which provides that equality includes the full and equal enjoyment of all rights and fundamental freedoms.

2. The Respondents by denying tenderers a fair process in tendering to enable them maintain a respectable quality of living have infringed the tenderers’ right to human dignity enshrined at Article 28 of the Constitution which provides that every person has inherent dignity and the right to have that dignity respected and protected.

3. The Respondents by colluding to unfair process and in the tendering process enumerated herein infringes the tenderers right to enjoy the economic and social rights enumerated by Article 43 of the Constitution.

4. The Respondents by disregarding, the provision of the energy act, through inefficient tendering process and awarding contracts to unqualified tenderers hence endangering Kenyan lives in total have violated the Kenyans and the tenderers rights as consumers under Article 46 of the Constitution.

5. The Respondents have failed to provide written reason/s for their refusal to qualify other tenderers required by Article 47(2) of the Constitution.

6. The applicant thereafter framed the following issues for the court’s determination:1. Whether by colluding to Award tender to unqualified firms in possession of Class C-1, Class C-2, instead of those in possession of Class A-1, Class A-2, in contravention of the Energy Act No. 1 of 2019, the electric power (electrical installation work) rules, 2006, respondents are in violation of the provisions of Article 10 of the Constitution of Kenya.2. Whether by unjustifiably awarding tenders to Class C-1, Class C-2, where only Class A-1, Class A-2 are applicable disadvantaging tenderers/suppliers from Class A-1, Class A-2, the Respondents are in violation of Article 27(1) of the Constitution the Respondents are in violation of Article 27 of the Constitution.3. Whether by denying tenderers a fair process in tendering to enable them maintain a respectable quality of living have infringed the tenderers’ right to human dignity enshrined at Article 28 of the Constitution.4. Whether by awarding the tenders to unqualified tenderer locking out qualified tenderers infringes right to enjoy the economic and social rights enumerated by Article 43 of the Constitution.5. Whether by disregarding, the provision of the energy act, no. of 2019, The Public Procurement and Asset Disposal Act, 2015, through inefficient tendering process and awarding contracts to unqualified tenderers hence endangering Kenyan lives in total have violated the Kenyans and the tenderers rights as consumers under Article 46 of the Constitution.6. Whether by refusing to render administrative action on issues tender process in a manner that is expeditious, efficient, lawful, and reasonable and procedurally fair the Respondents are in violation of Article 47(1) of the Constitution.

7. The Petitioners are seeking the following for orders:a.A declaration that within the intendment of Article 10, of the Constitution the nature of award of the tender process by the 1st, 2nd and 3rd Respondent violated constitution of Kenya 2010. b.A declaration that the failure to follow the laid down procedure for the carrying out of a Public tendering process under procurement and asset disposal act, makes the tendering process inconsistent with the provisions of Articles 10, 35(1), 47, 73 and 232 of the Constitution, and is therefore, illegal, null and void.c.Permanent injunction restraining the Respondents, their agents or persons acting under their authority and command, from entering into any concessions or contracting any party for the provision of services in the tender for labor and transport contractors for the year 2023-2025; rfx no. 1000000903 without complying with the provisions of Articles 10, 35(1), 47, 73,227, and 232 of the Constitution, the energy Act no.1 of 2019, and the Public Procurement & Asset Disposal Act 2015. d.An order be issued to compel the respondents to comply with the provisions of section 2,122 (a) and 142 (2) of the energy Act and section 4,5(a-d) of the electrical power (electrical installation work) rules, 2006 all applicable laws in their decision to enter contractual agreement for the above cited tender.e.A declaration that the actions of the 1st ,2nd and 3rd Respondents in colluding to qualify tenderers under Wrong classes and awarding the said tenderers a contract letter expressly violate the provisions of Article 43 of the Constitution which guarantees the tenderers right to enjoy the economic and social rights enumerated thereinf.A declaration that the actions of the 1st and 2nd Respondent in procuring unqualified tenderers amount to providing substandard services to Kenyan citizen through inefficient and lack of capacity hence by endangering their health and lives of Kenyan 32 through unreasonable substandard services violates the provisions of Article 46 of the Constitution which guarantees the rights of consumers.g.An order directing the Respondents to prepare and publish detailed reports capturing all the tender process undertaken operations since they were advertised.h.An advisory opinion to be issued to the 1st, 2nd and 3rd Respondents to adopt administrative, policy, legal and regulatory mechanism that will allow the proper and transparent procurement of the herein cited tender flouted by the 2nd Respondent.

8. The Applicants case is that a Tribunal has no jurisdiction to hear and determine matters relating to violation of rights and fundamental freedoms provided for in the Bill of Rights, and if it assumes jurisdiction, then the Tribunal acts in excess of its power.

9. He relies in the case of Royal Media Services Ltd v Attorney General & 6 others [2015] eKLR the learned Judge ordered… “(a) I hereby declare that only the High Court and courts of similar status currently have jurisdiction to hear and determine matters of violation of fundamental rights and freedoms in the Bill of Rights…..”

10. The Petitioner argues that the petition is one touching on the question of violation of the bill of rights and fundamental freedom and the interpretation of the constitution which are a reserve of the high court.

11. He also relies in the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, where it held, that:“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. We agree with counsel for the first and second Respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings.”

12. The jurisdictional remit of the High Court is anchored in Article 165(3) of the Constitution which states: -“Subject to clause (5), the High Court shall have-a)Unlimited original jurisdiction in criminal and civil matters;b)Jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened:c)Jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144;d)Jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of-i)The question whether any law is inconsistent with or in contravention of this Constitution;ii)The question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution.iii)Any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; andiv)A question relating to conflict of laws under Article 191; ande)Any other jurisdiction, original or appellate, conferred on it by legislation.

13. Article 165(5) states that…. “(5) The High Court shall not have jurisdiction in respect of matters— (a) reserved for the exclusive jurisdiction of the Supreme Court under this Constitution; or (b) falling within the jurisdiction of the courts contemplated in Article 162 (2).”

14. Article 165(6) of the Constitution it is stated as: - “(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.”

15. Article 22 gives any one a right of access to the court on allegations of breach or threatened breach of the bill of rights which the same is read summed in folds on the unlimited original jurisdiction of the High court in all matters as captured under Article 165. In the case of John Githongo and 2 others v Harun Mwau and 4 others, for instance, the court stated in part as follows: -“While Article 22 of the Constitution provides an independent and direct access to the High Court for enforcement, it is not the exclusive means for enforcing fundamental rights and freedoms…Firstly, the High Court under Article 165(3)(b) has jurisdiction to determine the question whether a right or fundamental freedom in the Bill of rights has been denied, violated, infringed or threatened. Article 165(3)(d) also grants the High Court jurisdiction respecting interpretation of the Constitution including a question whether any law is inconsistent with or in contravention of the Constitution and the question whether anything said to be done under the authority of the Constitution is consistent with or in contravention of the Constitution…This jurisdiction is not an independent jurisdiction, it is exercised in ordinary cases or disputes coming before the court and it need not be exercised through an Article 22 application.”

16. Section 28 (1) of the Public Procurement and Assets Disposal Act, 2015 states that the functions of the Review Board are, among others, reviewing and determining tendering and asset disposal disputes. Section 9 (2) and (3) of the Fair and Administrative Action Act, 2015 provide for alternative dispute resolution but where the question on fundamental right and freedom is invoked the tribunals lacks jurisdiction, and exclusively remain the preserve of the high court by dint of Article 23,22 and 165 of the Constitution of Kenya 2010.

17. In response to the Application, the Second Respondent filed grounds of opposition on 17th October 2023 which raised the following questions:1. That this Honourable Court lacks Jurisdiction to hear and determine this dispute.2. That Section 27(1) of the Public Procurement and Assets Disposal Act, 2015 establishes a central independent procurement appeals review board known as the Public Procurement Administrative Review Board.3. That Section 28 (1) of the Public Procurement and Assets Disposal Act, 2015 states that the functions of the Review Board are, among others, reviewing and determining tendering and asset disposal disputes.4. That the dispute herein ought to have been filed before the Public Procurement Administrative Review Board.5. That the Orders sought are unmerited and lack any backing in law.6. That the Application is misconceived and an abuse of the court process.

18. On 2nd of November 2023 the court directed parties to file submissions on the issue of jurisdiction before getting into the substantive suit.

The 2nd Respondent’s Submissions 19. In response to the petition, the 2nd Respondent filed grounds of opposition dated 17th October, 2023.

20. Article 159 (2) of the Constitution of Kenya, 2010 recognizes and entrenches the use of alternative dispute resolution mechanisms as follows;“159(2)in exercising judicial authority, the courts and tribunals shall be guided by the following principles-(a)…(b)…(c)alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted subject to clause (3).”

21. It has been held severally that a party is required to exhaust any alternative dispute resolution mechanisms before filing a matter in court as a matter of law.

22. The Court of Appeal in the case of Geoffrey Muthinja and Another versus Samuel Muguna Henry & 1756 Others (2015) eKLR observed as follows:“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 the fora of last resort and not the first port of call the moment a storm brews within the churches, as is bound to happen. The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside of courts. This accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.”

23. The doctrine of exhaustion which imposes an obligation on parties to exhaust any alternative means of dispute resolution is aptly discussed in the case of William Odhiambo Ramogi & 3 others by the five judge bench as follows:“52. The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency’s action. Seeks redress from a court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of its own interest within the mechanisms in the place for resolution outside of the courts…”

24. In the matter of Mui Coal Basin Local Community, the High Court stated the doctrine of exhaustion as follows:“The reasoning is based on the sound Constitutional policy embodied in Article 159 of the Constitution: that of a matrix dispute resolution system in the country. Our Constitution creates a policy that requires that courts respect the principle of fitting the fuss to the forum even while creating what Supreme Court Justice J.B. Ojwang’ has felicitously called an “Ascendant Judiciary.” The Constitution does not create an Imperial Judiciary zealously fueled by tenets of legal-centrism and a need to legally cognize every social, economic or financial problem in spite of the availability of better-suited mechanisms for comprehending and dealing with the issues entailed. Instead, the Constitution creates a Constitutional preference for other mechanisms for dispute resolution – including statutory regimes – in certain cases...”

25. Article 169 (1) (d) of the Constitution of Kenya, 2010 makes provision for the establishment of any other court or local tribunal or local tribunal established by an Act of Parliament, other than the courts established pursuant to Article 162(2). This Article of the Constitution recognizes the role of Parliament to create Tribunals to hear and determine certain disputes.

26. The Public Procurement and Assets Disposal Act, 2015 in Section 27(1) establishes a central independent procurement appeals review board known as the Public Procurement Administrative Review Board.

27. Section 28 (1) of the Public Procurement and Assets Disposal Act, 2015 states that the functions of the Review Board are, among others, reviewing and determining tendering and asset disposal disputes.

28. We humbly submit that that the Public Procurement Administrative Review Board is such a creature of Parliament through the Public Procurement and Assets Disposal Act, 2015.

29. Section 9 (2) and (3) of the Fair and Administrative Action Act, 2015 states as follows:(2)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.(3)The High Court or a subordinate Court shall, if it not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under subsection (1).

30. Section 9 of the Fair Administrative Action Act, 2015 is couched in mandatory terms where the High Court or Subordinate Courts are stripped off jurisdiction to hear matters where alternative dispute resolution mechanism have not been exhausted.

31. In Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 Others (2018) eKLR, the Honorable Court stated as follows:“I should emphasize that the use of the word shall in section 9 of the Act cited above is worth noting. The classification of statutes as mandatory and directory is useful in analyzing and solving the problem of what effect should be given to their directions. There is a well-known distinction between a case where the directions of the legislature are imperative and a case where they are directory. The real question in all such cases is whether a thing has been ordered by the legislature to be done and what is the consequence if it is not done. The general rule is that an absolute enactment must be obeyed or fulfilled substantially. Some rules are vital and go to the root of the matter, they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance.The word “shall” when used in a statutory provision imports a form of command or mandate. It is not permissive, it is mandatory.”

32. We therefore submit that in matters relating to public procurement, there are alternative forums where such disputes are to be handled.

33. We further humbly submit that there are reasons for the Review Board to be vested with jurisdiction in public procurement matters. In Mutanga Tea Company Limited versus Shikara Limited and Another (2015) eKLR, the Court of Appeal held as follows:“…such alternative dispute resolution mechanisms normally have the advantage of ensuring that the issues in dispute are heard and determined by experts in the area; and that the dispute is resolved much more expeditiously and in a more cost effective manner.”

34. The High Court in Rich Productions Limited versus Kenya Pipeline Company & Another, Petition no. 173 of 2014 held that:“The reason why the Constitution and the law establish different institutions and mechanism for dispute resolution in different sectors is to ensure that such disputes as may arise are resolved by those with the technical competence and jurisdiction to deal with them. While the Court retains the inherent and wide jurisdiction under Article 165 to supervise bodies such as the 2nd respondent, such supervision is limited in various respects, which I need, not go into here. Suffice to say that it (the court) cannot exercise such jurisdiction in circumstances where parties before it seek to avoid mechanisms and processes provided by law, and convert the issues in dispute into constitutional issues when it is not.”

35. It is our humble submission that the Public Procurement Administrative Review Board is comprised of experts in various sectors including matters of Public Procurement as set out in Section 29 of the Public Procurement and Assets Disposal Act.

36. The applicant has not filed any submissions.

Analysis and determination: The issue for determination is whether this court has jurisdiction to hear and determine this case. 37. In the Petition 14, 14a, 14b, & 14c of 2014(consolidated) Communication of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] eKLR. Borrowing from the Constitutional Court of South Africa in S V Mhlungu, 1995 (3) SA 867 (cc) and Supreme Court of USA Shwander v Tennessee Valley Authority 297 US. 288, 347, (1936), The Supreme Court adopted the 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. In essence, civil disputes should be determined in civil courts, criminal matters in criminal courts and the a Court would not decide a constitutional question which was properly before it, if there are some other basis upon which the case could have been disposed of.

38. The Applicant relies on the case of Ibrahim Wakhanyanga & 2 others v. Chief Magistrate’s Court Kakamega & 2 Others; Attorney General for Land Registrar Kakamega (Interested Party) 2022 eKLR, as cited in HCPT No 193 of 2022 Okiya Omtata v. the Accounting Officer KENGEN and KENGEN in which the Court stated as follows:“17. One of the instances in which a constitutional court loses jurisdiction is through the doctrine of constitutional avoidance. Thus, where there exist ample statutory avenues for resolution of a dispute, the constitutional court will defer to the statutory option and decline to entertain such a dispute. A party seeking relief in a matter that can be addressed through interpretation of statutes and rules made thereunder must seek relief through an ordinary suit as opposed to a constitutional petition...”

39. Section 9 (1) of the Fair Administrative Action Act provides an avenue for a party aggrieved by an administrative action to without unreasonable delay, apply for judicial review of any administrative action to the High Court or to a subordinate court upon which original jurisdiction is conferred pursuant to Article 22(3) of the Constitution. This, is subject to exhausting all other available remedies. Thus, Section (9) (2) provides in mandatory terms that;“The High Court or a subordinate court under subsection ​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.”

40. Section 9 (3) of The Fair Administration Action Act provides that,“The High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under sub-section (1).”

41. Section 35 (2) of The Public Procurement and Asset Disposal Act, 2015 provides for investigations procedures as follows: -“(2)An investigation under sub-section (1) may be initiated by the Authority or on request in writing by a public institution or any other person.”

42. Upon completion of the investigation and a report issued, the Act provides for action to be taken by the Director General of PPRA at Section 38 including terminating or cancelling procurement proceedings and any person aggrieved by any orders made by the PPRA can then request for judicial review against the Order of the Board under Section 39 of the Act.

43. Republic vs Independent Electoral & Boundaries Commission & 2 Others (2017) eKLR where it was held that persons who do not fall in the category of persons contemplated in section 167 (1) have no locus standi to commence review proceedings.

44. The same position was restated in Philip Nyandieka (Suing on own behalf and on behalf of the general public) -vs- National Government CDF - Bomaçhoge Borabu constituency [2019] eKLR and also in the Court of Appeal case in Al Ghurair Printing and Publishing LLC vs Coalition for Reform & Democracy (2017) eKLR.

45. Section 2 of The Public Procurement and Asset Disposal Act, 2015 defines a "candidate" as a person who has obtained the tender documents from a public entity pursuant to an invitation notice by a procuring entity; “tender” means an offer in writing by a candidate to supply goods, services or works at a price; or to acquire or dispose stores, equipment or other assets at a price, pursuant to an invitation to tender, request for quotation or proposal by a procuring entity; “tenderer” means a person who submitted a tender pursuant to an invitation by a public entity.

46. Section 167 (1) The Public Procurement and Asset Disposal Act, 2015 provides that subject to the provisions of this Part, a candidate or a 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 this Act or the Regulations, may seek administrative review within fourteen days of notification of award or date of occurrence of the alleged breach at any stage of the procurement process, or disposal process as in such manner as may be prescribed.

47. In the Petitioner describes himself as a voracious legal enthusiast, law abiding citizens of the republic of Kenya, constitutional defender, and human rights activist.

48. He pleaded that he has Locus Standi under Article 3(1) of the Constitution of Kenya, the petitioners have an obligation to respect, uphold and defend the Constitution. And that Article 22(2) of the Constitution of Kenya, the petitioners may institute court proceedings in the public interest to thwart threats to the rights and fundamental freedoms in the Bill of Rights.

49. He also relies on Article 258(2) of the Constitution of Kenya the petitioners may institute court proceedings in the public interest to thwart threats to the Constitution.

50. In Republic v Kenya Maritime Authority; Ex Parte Okiya Omtatah Okoiti (supra), the court held thus;“The applicant was not a candidate or a tenderer in the procurement process, hence, by dint of the said section, he cannot file a Request for Review before the Review Board."

51. From the foregoing I am satisfied that the Applicant was neither a candidate nor tenderer in the Tender floated by the Respondent as result of which he lacks the locus standi under Section 167 (1) of The Public Procurement and Asset Disposal Act, 2015 to commence review proceedings.

52. In the case of Elias Mwangi v Public Procurement Administrative Review Board & 5 Others [2016] eKLR, the court held that any person who has no automatic right to participate in the review proceedings may resort to other available modes of ventilating his rights.

53. Section 35 of The Public Procurement and Asset Disposal Act. The Authority, may undertake investigations, at any reasonable time, by among other things examining the records and accounts of the procuring entity and contractor, supplier or consultant relating to the procurement or disposal proceeding or contract with respect to a procurement or disposal with respect to a State organ or public entity for the purpose of determining whether there has been a breach of this Act or the Regulations made thereunder.(2)An investigation under sub-section (1) may be initiated by the Authority or on request in writing by a public institution or any other person.(3)Investigation shall be conducted by an investigator appointed for the purpose by the Authority.

54. It is my finding that the Applicant as a voracious legal enthusiast, law abiding citizens of the republic of Kenya, constitutional defender, and human rights activist has the locus standi to lodge a complaint under Section 35 (2) for investigations as a result of which the Applicant is bound by the doctrine of exhaustion.

55. Section 9 of The Fair Administration Act provides for the procedure for judicial review as follows: -“(1)Subject to subsection (2), a person who is aggrieved by an administrative action may, without unreasonable delay, apply for judicial review of any administrative action to the High Court or to a subordinate court upon which original jurisdiction is conferred pursuant to Article 22(3) of the Constitution.(2)The High Court or a subordinate court under sub-section (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.(3)The High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under sub-section (1).(4)Notwithstanding subsection (3), the High Court or a subordinate Court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice.According to the Black’s Law Dictionary 10th Edition, defines the doctrine of exhaustion as follows, “The doctrine that, if an administrative remedy is provided by statute, a claimant must seek relief first from the administrative body before judicial relief is available. The Doctrine's purpose is to maintain comity between the courts and administrative agencies and to ensure that courts will not be hardened by cases in which judicial relief is unnecessary."

56. In Jeremiah Memba Ocharo v Evangeline Njoka & 3 others [2022] eKLR the Court dealt with the exceptions to the doctrine of exhaustion. It expressed itself as follows: -“59. However, our case law has developed a number of exceptions to the doctrine of exhaustion. In Republic v Independent Electoral and Boundaries Commission [IEBC] Ex Parte National Super Alliance (NASA) Kenya & 6 Others [2017] after exhaustively reviewing Kenya's decisional law on the exhaustion doctrine, the High Court described the first exception thus:“What emerges from our jurisprudence in these cases are at least two principles: while, exceptions to the exhaustion requirement are not clearly delineated, Courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved – including level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies. As the Court of Appeal acknowledged in the Shikara Limited Case (supra), the High Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it. This exception to the exhaustion requirement is particularly likely where a party pleads issues that verge on Constitutional interpretation especially in virgin areas or where an important constitutional value is at stake. See also Moffat Kamau and 9 others vs Aelous (K) Ltd and 9 others.)60. As observed above, 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 allow the suit to proceed before it. It is also essential for the Court to consider the suitability of the appeal mechanism available in the context of the particular case and determine whether it is suitable to determine the issues raised.61. The second principle is that the jurisdiction of the Courts to consider valid grievances from parties who lack adequate audience before a forum created by a statute, or who may not have the quality of audience before the forum which is proportionate to the interests the party wishes to advance in a suit must not be ousted. The rationale behind this precept is that statutory provisions ousting Court’s jurisdiction must be construed restrictively. This was extensively elaborated by Mativo J in Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] eKLR.62. In the instant case, the Petitioners allege violation of their fundamental rights. Where a suit primarily seeks to enforce fundamental rights and freedoms and it is demonstrated that the claimed constitutional violations are not mere “bootstraps” or merely framed in Bill of Rights language as a pretext to gain entry to the Court, it is not barred by the doctrine of exhaustion. This is especially so because the enforcement of fundamental rights or freedoms is a question which can only be determined by the High Court.”

57. Article 22 (1) of the Constitution grants rights to every person to institute court proceedings claiming that a right or a fundamental freedom in the Bill of Rights has been denied, violated or infringed or is threatened. Under Article 22 (2), a person may institute the proceedings under Article 22 (1) in their own interest or, among others, acting in the public interest (refer to Article 22 (2) (c) of the Constitution).

58. In addition, Article 258 (1) of the Constitution grants every person the right to institute court proceedings claiming that the Constitution has been contravened, or is threatened with contravention. Article 258 (2) (c) is similar to Article 22 (2) (c) of the Constitution.

59. In Republic v Kenya Maritime Authority; Ex Parte Okiya Omtatah Okoiti; Misc Application No. 339 of 2019 (Unreported); Mativo J, as he then was, held that Articles 22 and 258 of the Constitution granted the applicant the locus standi to institute proceedings in the public interest.

60. Similarly, in the case of Kiluwa Limited & another v Commissioner of Lands & 3 others 12015] eKLR, the court upheld the applicant's locus standi under Articles 22 and 258 of the Constitution;a.The applicant's main contention is that the respondent's impugned tender is to the extent that the Respondents colluded to Award tender to unqualified firms in possession of Class C-1, Class C-2, instead of those in possession of Class A-1, Class A-2, in contravention of the Energy Act No. 1 of 2019, the electric power (electrical installation work) rules, 2006, in violation of the provisions of Article 10 of the Constitution 29 of Kenya which sets out the national values and principles of governance, particularly enjoining the Respondents to observe good governance, integrity, rule of law, non-discrimination, protection of the marginalized, transparency, accountability and sustainable development;b.To the extent that the Respondents have unjustifiably awarded tenders to Class C-1, Class C-2, where only Class A-1, Class A-2 are applicable disadvantaging tenderers/suppliers from Class A-1, Class A-2, the Respondents are in violation of Article 27(1) of the Constitution which provides that every person is equal before the law and has the right to equal protection and equal benefit of the law and Article 27(2) of the Constitution which provides that equality includes the full and equal enjoyment of all rights and fundamental freedoms.c.The Respondents by denying tenderers a fair process in tendering to enable them maintain a respectable quality of living have infringed the tenderers’ right to human dignity enshrined at Article 28 of the Constitution which provides that every person has inherent dignity and the right to have that dignity respected and protected.d.The Respondents by colluding to unfair process and in the tendering process enumerated herein infringes the tenderers right to enjoy the economic and social rights enumerated by Article 43 of the Constitution.e.The Respondents by disregarding, the provision of the energy act, through inefficient tendering process and awarding contracts to unqualified tenderers hence endangering Kenyan lives in total have violated the Kenyans and the tenderers rights as consumers under Article 46 of the Constitution.f.The Respondents have failed to provide written reason/s for their refusal to qualify other tenderers required by Article 47(2) of the Constitution.

61. Article 227 (1) of the Constitution for instance enjoins the respondent to procure goods and services in accordance with a system that is fair, equitable, transparent, competitive and cost-effective. The court emphasized on the need to observe the provisions of Article 227 of the Constitution in Republic v Independent Electoral and Boundaries Commission & another Ex Parte Coalition for Reform and Democracy & 2 others (supra).

62. The Applicant had the option of seeking redress under Section 35 (1) of The Public Procurement and Asset Disposal Act or under Article 23 of the Constitution.

63. The Applicant elected to move the court through Article 23 of The Constitution under The Chief Justices Rules under Article 22 of the Constitution by way of a Petition.

64. Article 23 of The Constitution does not expressly provide for the doctrine of exhaustion unlike Section 9 of The Fair Administration Act which provides for the procedure for judicial review as follows: -“(1)Subject to subsection (2), a person who is aggrieved by an administrative action may, without unreasonable delay, apply for judicial review of any administrative action to the High Court or to a subordinate court upon which original jurisdiction is conferred pursuant to Article 22(3) of the Constitution.(2)The High Court or a subordinate court under sub-section (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.”

65. The Petitioner set out the in paragraph 14 through to 54 of the petition the various Articles of the Constitution in support of his case. I am satisfied that the applicant raises Constitutional issues which can only be determined by this court under Article 165 and I so hold.

Disposition: 66. In the case of Dickson Ngigi Ngugi v Commissioner of Lands S.C Petition No. 9 of 2019 [2019] eKLR, [36] The Supreme Court made binding finding that Jurisdiction goes to the root of any cause or dispute before a court of law. A court must exercise restraint to avoid overstepping its constitutional role in order to maintain its legitimacy. If a court has no jurisdiction, a judgment rendered therein does not adjudicate the dispute. It does not bind the parties, nor can it be made the foundation of any right. It is a nullity without life or authority. In short, it is coram non judice and amounts to a nullity because, as Nyarangi, JA famously said in the locus classicus, Owners of the Motor Vessel “Lillian S” v Caltex Oil, (Kenya) Ltd [1989] KLR 1, “jurisdiction is everything.

Order: 67. This court has jurisdiction to determine the suit.

DATED, SIGNED, AND DELIVERED AT NAIROBI THIS 17TH DAY OF NOVEMBER, 2023. ……………………………………JOHN CHIGITI (SC)JUDGE