https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3251

County Government of Taita Taveta v Cabinet Secretary, Ministry of Agriculture & Livestock Development & 6 others (Petition E008 of 2024) [2026] KEELC 3251 (KLR) (Constitutional and Human Rights) (28 May 2026) (Ruling) Neutral citation: [2026] KEELC 3251 (KLR) Republic of Kenya In the Environment and Land Court at Voi Constitutional and Human Rights Petition E008 of 2024 EK Wabwoto, J May 28, 2026 Between County Government of Taita Taveta Petitioner and The Cabinet Secretary, Ministry of Agriculture & Livestock Development 1st Respondent Principal Secretary, the Ministry of Agriculture & Livestock Development 2nd Respondent The National Land Commission 3rd Respondent The Cabinet Secretary, the Ministry of Lands, Public Works, Housing and Urban Planning 4th Respondent The Hon. Attorney General 5th Respondent and The Council of Governors 1st Interested Party Blue Mountain Meat and Livestock Limited 2nd Interested Party Ruling 1.This ruling addresses prayers 4 and 5 of the notice of motion dated 8th December 2025, filed by Blue Mountain Meat and Livestock Limited ("the applicant"), as the 2nd interested party to Petition E008 of 2024. Prayer 4 seeks an order that this court review and set aside the judgment delivered on 23rd October 2025 and all consequential orders arising therefrom. Prayer 5 seeks an order for costs of the application. 2.This ruling addresses the applicant's contentions that the judgment delivered on 23rd October 2025 was made in circumstances that breach natural justice and procedural fairness, and that new and important evidence has emerged since the judgment was delivered, warranting review of the decision. 3.The Petition E008 of 2024 was filed on 11th September 2024 by the County Government of Taita Taveta ("the petitioner"), challenging a procurement process for the leasing of Bachuma Livestock Quarantine Station. The tender process in question was Tender No. Moald/SDA/BLQS/IT/01/2024/2025 ("the subject tender"). 4.The applicant was the successful tenderer in this procurement process. On 25th April 2025, the Applicant received a "Notification of Award" letter, and on 5th May 2025, it signified acceptance of the award by sending a "Letter of Acceptance". 5.On 22nd September 2025, the applicant received a letter from the 2nd respondent (Principal Secretary, Ministry of Agriculture and Livestock Development) dated 22nd September 2025, notifying the applicant of the termination of the procurement proceedings on grounds of detected material governance issues, and indicating an intention to restart the procurement process afresh. 6.Critically, the applicant was not notified of the petition proceedings which had been filed on 11th September 2024. The applicant only learned of the existence of the petition, and of the judgment delivered on 23rd October 2025, on 11th November 2025, when it received a letter from the 2nd respondent advising that it could not proceed with signing the contract due to the impugned judgment. 7.On 27th October 2025, the Public Procurement Administrative Review Board ("PPARB") made a determination in PPARB Application No. 96 of 2025, cancelling and setting aside the Letter of Termination and directing the Principal Secretary to proceed with the subject tender. However, on 11th November 2025, the 2nd respondent informed the applicant that they were unable to implement the PPARB's decision due to the judgment of this court delivered on 23rd October 2025. 8.On 8th December 2025, the Applicant filed the present Notice of Motion seeking:(i)Urgency and ex parte hearing;(ii)A stay of the Judgment;(iii)Joinder as an Interested Party;(iv)Review and setting aside of the Judgment of 23rd October 2025; and(v)Costs of the Application. The Application was opposed by some of the Respondents while the Petitioner never filed any response in opposition to the same. The Applicant's Case 9.The Applicant advances the following principal contentions. 10.The Applicant was never served with, notified of, or made aware of the Petition proceedings despite being the successful tenderer with a direct and substantial interest in the subject matter. The Petition was filed on 11th September 2024, yet the Applicant did not learn of its existence until 11th November 2025 more than two months after judgment was delivered on 23rd October 2025. 11.The Applicant was condemned unheard. The proceedings directly determined the validity of the tender to which the Applicant was the successful bidder and affected its vested rights and legitimate expectations. The complete absence of the Applicant from these proceedings constitutes a manifest breach of the audi alteram partem principle and the constitutional right to a fair hearing under Article 50(1) of the Constitution. 12.The Applicant was not furnished with adequate and timely information concerning the administrative action (the challenge to the tender) and was given no reasons for the adverse action (the annulment of the tender award) prior to the delivery of judgment. This violates Article 47 of the Constitution on fair administrative action. 13.The Applicant submits that the 2nd Respondent, who had knowledge of both the Petition proceedings and the Applicant's interest as the successful tenderer, deliberately failed to disclose the existence of the proceedings to the Applicant. This constituted a material procedural impropriety and a breach of good faith and procedural fairness. 14.The 2nd Respondent similarly failed to disclose the existence of the Petition to the Public Procurement Administrative Review Board while the PPARB Application No. 96 of 2025 was pending. This non-disclosure prevented the PPARB from exercising its full jurisdiction and awareness when determining the Applicant's Request for Review. 15.The existence of the Petition proceedings themselves, and the Judgment delivered in the Applicant's complete absence, constitutes new and important matter that the Applicant, despite due diligence, could not have discovered prior to the delivery of judgment. This warrants review under Order 45 Rule 1 of the Civil Procedure Rules. 16.A judgment delivered in breach of natural justice and procedural fairness is incurably defective and cannot stand, irrespective of its substantive correctness. The Judgment of 23rd October 2025, having been delivered without the Applicant's participation and in breach of procedural fairness, is null and void ab initio. The Respondents' Case 17.The Respondents represented primarily by the Attorney General on behalf of the 1st, 2nd, and 5th Respondents filed a Replying Affidavit sworn by Jonathan Mueke on 23rd February 2026, opposing the application. Through this affidavit and their written submissions, the Respondents advance the following principal contentions. 18.The Respondents contend that the tender process has already been terminated administratively prior to the delivery of judgment. The Judgment, which declared the entire tender process unconstitutional and invalid, merely confirmed that no lawful rights could arise from that process. There is therefore nothing for the Court to stay, and the subject matter of the Application is academic. 19.The Respondents argue that the Applicant has not demonstrated grounds for review under Order 45 Rule 1. They contend that:(a)Jurisdictional issues were available before judgment and cannot now be raised;(b)The "new and important matter" must be factual evidence, not the proceedings themselves;(c)The Applicant's ignorance of the proceedings was self-inflicted, not due to procedural concealment; and(d)The Applicant had actual notice of the threat to its interests on 22nd September 2025. 20.The Respondents contend that allowing post-judgment joinder as a gateway to setting aside would undermine the doctrine of finality, which is foundational to the rule of law. Permitting parties to reopen concluded proceedings would allow endless litigation and uncertainty. 21.The Respondents argue that the Applicant received notice of the threat to its interests on 22nd September 2025 before judgment was delivered on 23rd October 2025 and had the opportunity to approach the Court for joinder. The Applicant's failure to do so was a deliberate litigation choice for which it cannot now be relieved by the exercise of discretion. 22 .The Respondents point out that the Applicant pursued proceedings before the Public Procurement Administrative Review Board (PPARB Application No. 96 of 2025), which was dismissed or struck out on 13th January 2026. The Applicant's return to this Court after failing in the PPARB forum demonstrates forum shopping and an attempt to circumvent the doctrine of exhaustion of remedies. 23.The Respondents contend that the Judgment was correct on the merits. The tender process did lack constitutional compliance regarding public participation and intergovernmental consultation. The Applicant's commercial grievance is not a basis to revisit a constitutionally-grounded decision. A constitutionally compliant process has been initiated and is already underway. Issues for Determination 24.The following two issues arise for determination:i.Whether the Applicant has established grounds for review of the Judgment delivered on 23rd October 2025.ii.What orders should issue as to costs. Analysis and Determination Issue 1: Whether grounds for review have been established 25.Order 45 Rule 1 of the Civil Procedure Rules, 2010 provides for review of judgments on the following grounds; discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the applicant or could not have been produced at the time when the decree was passed or order made; mistake or error apparent on the face of the record; or any other sufficient reason. 26.This court is satisfied that the Applicant has established grounds for review on more than one of these bases. The non-disclosure of the Petition proceedings to the Applicant, despite the Applicant's clear and identifiable interest as the successful tenderer, constitutes both "new and important matter" and "sufficient reason" for review. The proceedings were deliberately concealed from the Applicant by the 2nd Respondent, who knew of both the proceedings and the Applicant's interest, yet chose not to disclose either to the Applicant. This is a material procedural impropriety that goes to the root of procedural fairness. 27.The Applicant argues that the existence of the Petition proceedings, and the Judgment delivered on 23rd October 2025 in its complete absence, constitute "new and important matter" within the meaning of Order 45 Rule 1. 28.The Respondents contend that the Petition proceedings themselves are not "evidence" in the evidentiary sense contemplated by the rule, and that the Applicant's ignorance was self-inflicted. 29.This Court finds that while the Petition proceedings themselves may not be "evidence" in the traditional sense, the legal framework for review under Order 45 Rule 1 has evolved to encompass circumstances where a party has been excluded from proceedings determining its fundamental rights and interests, through no fault of its own. The non-disclosure by the 2nd Respondent a party with knowledge of both the proceedings and the Applicant's interest constitutes a material fact that could not, by any exercise of diligence, have been discovered by the Applicant. The Applicant did not fail to remain alert; rather, the proceedings were concealed from it. 30.In Chacha v Sereria & another [2025] KEELC 6540 (KLR), it was held that where facts could not, by any stretch of diligence, have been placed before the Court earlier, they constitute "new and important matter" warranting review. The non-disclosure of the Petition to the Applicant is precisely such a fact. The Applicant received notice of the threat to its interests on 22nd September 2025, yet had no way of knowing that a Petition directly concerning that very matter had been filed on 11th September 2024 and had been proceeding in without its knowledge. 31.The principle of audi alteram partem (the right to be heard) is foundational to natural justice and the rule of law. A party whose rights and interests are likely to be affected by a decision has a reasonable expectation of being given a hearing before that decision is made. 32.The facts are undisputed:(i)The Applicant was the successful tenderer with direct and substantial interests at stake;(ii)The Applicant was not served with the Petition;(iii)The Applicant was not notified of the proceedings;(iv)The Applicant was given no opportunity to present evidence or arguments;(v)The Applicant was completely unaware of the proceedings until 11th November 2025, more than two months after judgment was delivered on 23rd October 2025; and(vi)The 2nd Respondent, who had knowledge of both the Petition and the Applicant's interest, deliberately chose not to disclose the proceedings to the Applicant. 33.The present case is precisely such a situation. The Applicant was completely deprived of the opportunity to present its case and evidence. 34.Article 47 of the Constitution provides that every person has the right to fair administrative action, which includes:(i)being furnished with adequate and timely information concerning administrative action; and(ii)being given reasons for administrative action that is reasonably likely to adversely affect the person.Article 50(1) provides that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court. 35.In Kenya Human Rights Commission v Non-Governmental Organizations Co-ordination Board [2016] eKLR, it was held:"A person whose interests and rights are likely to be affected by an administrative action has a reasonable expectation that they will be given a hearing before any adverse action is taken as well as reasons for the adverse action as provided for under Article 47 (2) of the Constitution." 36.The Applicant, as the successful tenderer, fell squarely within this principle. The administrative action (the challenge to the tender process) was directly likely to adversely affect the Applicant's vested rights and legitimate expectations. The Applicant was:(i)not furnished with information concerning the Petition proceedings;(ii)not given reasons for the challenge to the tender prior to judgment; and(iii)given no hearing. 37.The conduct of proceedings in the Applicant's complete absence, without its knowledge or opportunity to be heard, violates these fundamental constitutional guarantees. 38.While the doctrine of finality of judgments is important, it is not absolute. Where a judgment has been delivered in breach of fundamental principles of natural justice and procedural fairness, the interests of justice may favour review notwithstanding the finality doctrine. 39.In Albert Chaurembo Mumba & 7 others v Maurice Munyao & 148 others [2019] eKLR, the Supreme Court held:"Indeed, where a breach of the principles of natural justice has been identified, the consequence is that the decision must be declared to be a none decision. The decision must be declared to be no decision."This principle applies notwithstanding the finality doctrine. 40.The discretionary factors favouring review are compelling: the complete absence of the Applicant from proceedings affecting its fundamental rights is exceptional and goes to the root of procedural fairness; the deliberate non-disclosure by the 2nd Respondent means the Applicant cannot be faulted for failing to participate; the Judgment directly affected the Applicant's substantial and vested commercial and legal interests and the Applicant's participation is essential to a just and complete determination of the substantive issues in the underlying Petition. 41.This Court exercises its discretion in favour of allowing the review. The exceptional circumstances of this case the deliberate non-disclosure, the complete absence of the Applicant despite its clear and identifiable interest, the breach of natural justice, and the violation of constitutional rights outweigh considerations of finality. A judgment delivered in such circumstances is incurably defective and cannot stand. The interests of justice are best served by allowing review and conducting a rehearing with the Applicant's full participation. Issue 2. Costs 42.The general rule is that costs follow the event unless otherwise directed by the Court. In this case, the interests of justice are best served by ordering that each party bear its own costs of this application. Final orders 43.In the end, this court makes the following orders in respect to the application dated 8th December 2025;i.The Judgment of this Court delivered on 23rd October 2025 and its consequential orders is hereby reviewed and set aside.ii.Each party to bear own costs of the application. DATED, SIGNED AND DELIVERED VIRTUALLY AT VOI THIS 28TH DAY OF MAY, 2026.E. K. WABWOTOJUDGE