https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7303

**THE REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **PETITION NO. E094 OF 2023** **BETWEEN** **DISNEY INSURANCE BROKERS LIMITED ……………..…… PETITIONER** **VERSUS** **TANA AND ATHI RIVER DEVELOPMENT AUTHORITY......... RESPONDENT** **J U D G M E N T** **Introduction** 1. The Petition dated 21/3/2023 is supported by the Supporting affidavit of the Petitioner of even date and a further affidavit dated 2/5/2024. 2. The gist of the Petition is that the Petitioner, an Insurance Brokerage Firm was sometimes in the year 2013 awarded a tender by the Respondent, TARDA/045/2013/2024 under which it secured an insurance Firm, African Merchant Insurance Services (AMACO) to provide general insurance services to the Respondent against the risk of burglary, commercial motor vehicle (third party fire and theft) and tractors insurance (fire and theft). 3. The Petitioner alleged despite remitting motor vehicle insurance certificates and policy documents and debit notes to the Respondent, the Respondent did not pay Kshs.587,383/- which was payable to the Petitioner for the performance of the said tender. 4. The Petitioner thus claims that the Respondent, being a Government body, it has violated Article 10 of the Constitution, and Petitioner’s rights under **Article 28, 40, 43** and **47** of the Constitution. 5. The Petitioner thus prays for the following reliefs: 1. ***A declaration be made that the Respondent has violated the Petitioner's rights as enshrined in the Constitution of Kenya 2010.*** 2. ***A declaration be made that the Respondent has violated the Petitioner's rights as enshrined in the Constitution of Kenya 2010.*** 3. ***A declaration be made that the Respondent has violated the Petitioner's rights as enshrined in the Constitution of Kenya 2010.An order be made directing the Respondent to settle the debt owed to the Petitioner in the sum of Kshs.587,383/= being the total value of the outstanding insurance premiums for Tender No. TARDA/045/2013/2014.*** 4. ***Interest on (b) above from 4th July, 2013 which is the date the said money was due and owing until payment in full.*** 5. ***The costs of the petition.*** **Petitioner’s Case** 1. The Petitioner swore the affidavit in support through its Managing Director, Charles Kanyi. It disclosed that it carries on an insurance brokerage business which involves securing various types of insurance covers from various insurance companies for the· benefit of its clients. This includes motor vehicle insurance, health insurance, general insurance, machinery insurance among others. 2. The Petitioner deponed that sometimes in the year 2013 the Respondent floated **Tender No. TARDA/045/2013/2014** for supply of goods and services which the Petitioner bid for and was shortlisted through the letter dated 12th June, 2013 (exhibit **"CK-2"). The letter was** acknowledged by Petitioner’s letter dated 18th June, 2013 (exhibit **"CK-**3'). In the end, the Petitioner won the said tender as confirmed by the letter of offer by the Respondent dated 1st July, 2013 (exhibit **"CK-4").** The tender was for theprovision of insurance cover against All Risks, burglary, Tractors (third party fire and peril), Motor vehicle commercial (fire and theft) and crops in Kibwezi farm. The Petitioner accepted the tender through a letter dated 2nd July, 2013 (exhibit **"CK-5 a").** 3. Consequently, the Petitioner obtained insurance ·covers from **African Merchant Assurance Company (AMACO)** for the benefit of the Respondent which insured Risks relating to burglary, Tractors (third party fire and peril), Motor vehicle commercial (fire and theft). The covers were forwarded through a letter dated 3rd July, 2013 (exhibit **"CK-5 b") and, the** motor insurance certificates were forwarded vide a letter dated 4th July, 2013 (exhibit **"CK-6"). P**olicy documents were subsequently forwarded in September, 2013 (see exhibit **"CK-**7"). 4. Despite the foregoing, the Respondent failed to remit the outstanding payment of **Kshs.587,383/=** as evidenced in the various demand letters dated 18th September, 2017, 20th September, 2018 and 5th October, 2020, (exhibit CK 8). 5. The Petitioner avers that the Respondent has violated the Petitioner's rights and breached the contract between the Petitioner and the Respondent. The Petitioner averred that the Respondent, being a government body is bound by **Article 10 of the Constitution of Kenya, 2010** to act in an open, accountable and transparent manner so as to uphold the rule of law and good governance and the failure by the Respondent to settle the debt owed to the Petitioner violates those constitutionally stipulated principles. 6. Further, that the Respondent has violated the Petitioner's social and economic rights enshrined in **Article 43 of the Constitution of Kenya, 2010** since by denying the Petitioner's director and employees the benefit of this earning, they affect their ability to sustain their families and also, the huge debt, have made the Petitioner encounter serious problems with Insurance Regulation Authority. 7. In addition, the Petitioner’s director and employees' personal dignity has also been violated because the loss means of survival leads to loss of personal dignity as well. 8. The Petitioner alleged that Government organs are required to uphold Fair Administrative Action as set out in **Article 47 of the Constitution of Kenya, 2010** and thus thefailure by the Respondent to respondent to settle the claims lodged by the Petitioner is a breach of the principle. 9. Finally, that failure by the Respondent to pay the Petitioner for services rendered on the due date or within a reasonable time amounts to unlawful deprivation of the Petitioner's property by the Respondent which is a monumental violation of **Article 40(3) of the Constitution of Kenya 2010.** 10. Further that the Petitioner had a reasonable and legitimate expectation that the Respondent being a public body would uphold the principles of good governance and lead by example by upholding the rule of law and honouring its contractual obligation. 11. Regarding delay in instituting court proceedings against the Respondent , the Petitioner stated that it was because it decided to give the Respondent and the National Government an opportunity to settle the claim based on the promises it had been making concerning the payment and was thus certain that the Respondent would, in the fullness of time, settle the balance of the debt owed to the Petitioner given the fact that the Respondent had paid a big percentage of the said debt. **RESPONDENT’S CASE** 1. In response to the Petition, the Respondent filed a Preliminary Objection dated 12th May 2023 and a Replying Affidavit to the Petition dated 23/7/2025. 2. The Respondent however withdrew the Preliminary Objection on 25/1/2024. 3. The Respondent, through Joseph Okoth, an Assistant Finance Manager in Accounts, filed a Replying Affidavit sworn on 23rd July 2025 in response to the Petitioner’s case. He stated that the Respondent is a statutory corporation established under the provisions of the **Tana and Athi Rivers Development Act, Chapter 443 of the Laws of Kenya** whose functions set out in Section 8 of the Act. 4. The Respondent asserted that the Petitioner made false and sweeping allegations without offering any credible evidence. 5. The Respondent deponed that public procurement is an open and competitive process which begins with the preparation of Annual Procurement Plans, followed by advertising, bidding, evaluation, and contract management. 6. The Respondent relied on Section 68 of the Public Procurement and Asset Disposal Act, 2015, which expressly requires that all public procurement agreements be reduced into writing and duly executed by the parties involved. The Respondent contends that the Petitioner has failed to produce any legally binding contract evidencing such execution between the parties. Consequently, the alleged contractual relationship is unsubstantiated and lacks legal foundation. The Respondent emphasizes that compliance with public procurement laws is mandatory, and any engagement for the supply of goods or services must be anchored in a formally executed contract. In the absence of such a binding legal instrument, the purported agreement is incapable of enforcement. 7. Further, the Respondent stated that an award letter without a binding contract does not constitute a legally enforceable agreement. Moreover, the Respondent contended that insurance certificates are typically presented as proof of coverage for a full year; hence, African Merchant Assurance Company (AMACO) could not have legitimately provided such comprehensive insurance protection without the full and timely payment of premiums in light of Section 4.2 of the Insurance Act, which stipulates that *“no insurance cover shall be in effect unless all premiums due have been paid in full,”* . The Respondent argued that it discharged its financial obligation by paying in full for the services rendered—specifically, the provision of comprehensive insurance cover from African Merchant Assurance Company. 8. The Respondent further deposed that public procurement procedures in are governed by the Public Procurement and Asset Disposal Act CAP 412C ,2015 which requires public entities to maintain documentation for various phases of the procurement process and specifically states that all procurement documents should be retained for a minimum of seven years from the date of completion of the procurement contract. In the instant case, this matter has had an 11-year delay before the court action which raises significant questions regarding the legitimacy of the claim. 9. **THAT** the respondent reads malice on the reason that the petitioner filed this matter eleven (11) years after offering the alleged services. The glaring 11-year delay by petitioner in bringing these claims to Court raises serious doubts about the validity of its assertions and highlights a staggering negligence on petitioner's part in promptly addressing and rectifying any issues related to payments and documentation that the petitioner sat on their rights to claim alleged payment for an unreasonable length of time and should not now expect any equitable relief. **PETITIONER’S SUBMISSIONS** 1. The Petitioner filed written submissions dated 2nd May 2024. 2. The Petitioner commenced by briefly reiterating the factual background that led to the filing of this Petition. It submitted that, through its insurance brokerage business, it procured insurance cover from Africa Merchant Assurance Company Limited (AMACO) amounting to Kshs. 8,150,123/=. The Petitioner’s account with AMACO was debited with the said sum. Under the contractual agreement between the Petitioner and the Respondent, the Respondent was obligated to reimburse the Petitioner upon receipt of the insurance policies. The Respondent confirmed receipt of the policies and made partial payments in instalments. However, despite repeated assurances, the Respondent failed to settle the outstanding balance of Kshs. 587,383/=. 3. The Petitioner identified two issues for determination by the Court: 4. *Existence of a contract between the Petitioner and the Respondent.* 5. *Entitlement to reliefs sought by the Petitioner.* 6. On the existence of a valid contract, the Petitioner submitted that its supporting affidavit annexed letters of offer and acceptance relating to Tender No. TARDA/045/2013/2014, marked exhibits CK-1 to CK-5. This evidence was not disputed by the Respondent. Furthermore, the Petitioner procured insurance cover from AMACO for the Respondent and forwarded all policy documents under cover of a letter marked CK-6. The Respondent acknowledged receipt of the documents, which clearly identified the Respondent as the insured party. The policies bore the Petitioner’s stamp, verifying authenticity as the insurance broker. 7. The Petitioner therefore argued that a contractual agreement existed for the provision of general insurance services. The Respondent partially paid the debt but left a balance of Kshs. 587,383/=, which forms the subject matter of this suit. The Petitioner emphasized that the Respondent neither denied nor refuted the debt. Failure to contest the claim, it argued, can only lead to the inference that the Petitioner’s assertions are truthful. Reliance was placed on *Linus Nganga Kiongo & 3 Others v Town Council of Kikuyu [2012] eKLR*, where the Court held that uncontroverted evidence by the Plaintiff stands. 8. On entitlement to reliefs, the Petitioner submitted that the insurance covers procured from AMACO were for the Respondent’s benefit, as evidenced by the policy documents naming the Respondent as the insured. The Petitioner’s account was debited with Kshs. 8,150,123/=, representing premiums paid to AMACO for the Respondent’s assets. 9. The Respondent partially reimbursed the Petitioner, leaving a balance of Kshs. 587,383/=. In order to preserve their longstanding business relationship, the Petitioner refrained from immediate legal action, relying on the Respondent’s repeated promises to clear the balance. Numerous letters, emails, and meetings were held with the Respondent’s officers, but the debt remained unpaid. 10. The Petitioner argued that the Respondent, having induced reliance on its promises, is estopped under Section 120 of the Evidence Act from denying the debt. Reliance was placed on *John Mburu v Consolidated Bank of Kenya [2015] eKLR*, citing *Moorgate Mercantile Co. Ltd v Twitchings [1976] 1 QB 225*, where the Court held that estoppel is a principle of justice preventing a party from unjustly departing from a representation upon which another has relied. 11. The Petitioner further invoked the doctrine of unjust enrichment, citing *Kamau Macharia v Kenya Commercial Bank Ltd [2003] eKLR* and *Ghaled v Hussein Al Qu’aiti [1957] EA 55*. It argued that allowing the Respondent to retain the benefit of insurance without full payment would unjustly enrich the Respondent at the Petitioner’s expense, contrary to equitable principles. 12. The Petitioner contended that, as a government body, the Respondent is bound by the national values and principles under Article 10 of the Constitution, including accountability, transparency, and integrity. Its failure to honor contractual obligations or provide any explanation demonstrates a breach of these constitutional values. 13. Finally, the Petitioner submitted that, having invested its own funds to secure insurance for the Respondent, the Respondent was obligated to fulfill its contractual duty by reimbursing the Petitioner. The Respondent’s failure violates the Petitioner’s socio-economic rights and the right to fair administrative action under Article 47 of the Constitution. **RESPONDENT’S SUBMISSIONS** 1. The Respondent narrowed to the following issues for determination: 2. ***The lack of due procurement process as guided by the public procurement and Asset disposal Act*** 3. ***Absence of any supporting documents supporting the service delivery by the plaintiff*** 4. ***Whether the plaintiff bares the status of a stranger to the Defendant*** 5. ***The lack of due procurement process as guided by the public procurement and asset disposal Act*** 6. On the question of failure to comply with the due process as guided Public Procurement and Asset Disposal Act, the Respondent argued that Tana and Athi Rivers Development Authority is established by the Tana and Athi Rivers development Authority Act CAP 443 and under Section 3 thereof, it is given the capacity to enter into contractual obligations as a legal entity. 7. The Respondent contended that the Authority is required to abide by the procurement process as required by the Public Procurement and Asset Disposal Act (PPADA) of 2015 and overseen by the Public Procurement Regulatory Authority (PPRA), which emphasizes transparency, fairness, and accountability to safeguard public resources. 8. The Respondent argued that the services in question were allegedly procured in the financial year 2013/14 yet this matter has brought to this court 2023. 9. The Respondent contended that under the Public Procurement and Asset Disposal Act, 2015 (PPADA) ***Section 67- requires public entities to maintain documentation for various phases of the procurement process and provides that all procurement documents should be retained for a minimum of seven years from the date of completion of the procurement contract. Public Procurement Regulations, 2020 Regulation 77: requires public entities to keep records of all procurement processes for a period of seven years after the finalization of the contract.*** 1. The Respondent contended that under Public Archives Records Management Act, 2012; Section 7: provides for the establishment of a national policy for the management of public records. It mandates that public records be retained according to a records retention schedule that should be developed and approved. Section 18: emphasizes the requirement for state and public offices to maintain records and manage them in compliance with the provisions of the Act. 2. On the issue of absence any documents to support the Petitioner’s claim for delivery of services, the Respondent submittedthat it could not find the tender advertisement that the Petitioner mentions in this matter because no such tender ever existed. Further, notwithstanding the Petitioner’s claim that it underwent procurement process the same cannot be verified as there is are no minutes in relation to the said advert. 3. Moreover, the Respondent submits that the Petitioner mentions made but failed to provide evidence to that effect. Further, there were no certified debit notes to that despite frequently being requested for the same in the matter to process the payment for the premiums if any. 4. The Respondent further contended Section 4(2) of Public procurement and assets disposal Act,2005 requires entities wishing to engage in business with public institutions to be registered suppliers within the government's supplier database yet the Petitioner’s name has never been registered as a supplier, raising serious concerns regarding the legitimacy of their claims and their capacity to enter into contractual relationships with the Respondent. Furthermore, the Respondent was unable to locate the tender advertisement and the minutes of the tender committee, hence the authenticity of the letters dated 12th June 2013 and 1st July 2013 cannot be verified by the Respondent as none of the said letters was in its possession. Additionally, the Respondent argued that the letters do not conform to the Respondent’s official correspondence. The Respondent argued that the correspondence from AMACO, dated 14th October 2024, clearly indicates the motor vehicles insured by the provider during the specified periods in relation to insurance cover that was secured in the name of the Respondent, not the petitioner. 5. Moreover, the Respondent argued that in a letter dated 28th October 2024, the Authority sought to verify the petitioner's claims that they had made payments towards insurance policies but a certified statement from AMACO, dated 29th October 2024, reflects that, although the petitioner requested a valuation of the insurance premiums, the accounts remain unsettled and appear outs standing-thereby contradicting the petitioner's allegations that he made any payments. 6. The Respondent maintained that it is a public institution and any payments made by the Authority are Public funds which are to be expended in accordance with the Constitution of Kenya, 2010, the Tana and Athi Rivers Development Authority Act and public Finance Management Act. It argued that there was no evidence that there was any compliance with the law in so far as procurement of legal services from the petitioner was concerned. That there was not even a contract signed between parties. The petitioner seems to have taken the risk of offering their professional services premised on a false belief that they would be paid as it may have happened before the enactment of the Constitution of Kenya,2010. The Respondent contended that conduct cannot override clear provisions of the Constitution and the statute in regard to expenditure of public resources hence it was upon the petitioner to ensure that they had the necessary contractual documents before they offered insurance brokerage services to the Respondent. The Respondent submitted that the Respondent cannot rely on previous conduct if it is contrary to the law. **RESPONDENT’S SUBMISSIONS** 1. The Respondent concretized the issues for determination as follows: 2. ***Compliance with procurement law.*** 3. ***Absence of supporting documents.*** 4. ***Petitioner’s legal standing.*** 5. ***Failure to follow procurement process.*** 6. On the question of compliance with the Public Procurement and Asset Disposal Act (PPADA), the Respondent submitted that the Tana and Athi Rivers Development Authority (TARDA) is established under the Tana and Athi Rivers Development Authority Act, CAP 443. Section 3 of the Act confers the Respondent with the legal capacity to enter into contractual obligations. 7. The Respondent submitted that it is bound by the procurement procedures set out in the PPADA, 2015, and is also subject to the oversight of the Public Procurement Regulatory Authority (PPRA) and that these #provisions are geared toward safeguarding transparency, fairness, and accountability in the use of public resources. 8. The Respondent argued that the services in question were allegedly procured during the financial year 2013/14, yet the Petition was only instituted in 2023, raising serious concerns about the unreasonable delay instituting the suit. 9. The Respondent further relied on Section 67 of the PPADA, 2015 read together with Regulation 77 of Public Procurement Regulations, 2020 and submitted that it requires public entities to maintain documentation for all phases of procurement. The Respondent submitted those records were and not existent at the point the suit was filed. Specifically, the Respondent could not trace the tender advertisement allegedly issued, nor were there minutes of the tender committee to verify the process. 10. On the issue of supporting documents, the Respondent argued that the Petitioner failed to provide evidence it rendered the alleged services. The Respondent added that the Petitioner did not produce certified debit notes despite repeated requests, making it impossible to process payments for insurance premiums. 11. The Respondent further contended that Section 4(2) of the Public Procurement and Asset Disposal Act, 2005 requires suppliers engaging with public institutions to be registered in the government’s supplier database. The Petitioner was never registered, casting doubt on its legitimacy and capacity of the Petitioner to contract with TARDA. 12. The Respondent also questioned the authenticity of the letters dated 12th June 2013 and 1st July 2013, noting that they were neither in its possession nor did they conform with TARDA’s official correspondence format. Moreover, correspondence from AMACO dated 14th October 2024 confirmed that the insurance covers for the motor vehicles were obtained in the name of the Respondent, not the Petitioner. That in a letter dated 28th October 2024, TARDA sought verification of the Petitioner’s claims regarding insurance payments. A certified statement from AMACO dated 29th October 2024 revealed that although the Petitioner requested a valuation of premiums, the accounts remained unsettled and outstanding. This directly contradicted the Petitioner’s assertion of having made any payments. **Analysis and Determination** 1. Having reviewed the pleadings and submissions by the Parties, I find the following to be the issues for determination: 2. *Whether the Petition discloses a competent constitutional controversy and, whether the time taken to file the Petition constitutes inordinate and unreasonable delay* 3. *Whether a valid and enforceable contract existed between the Petitioner and the Respondent* 4. *Whether the Procurement process complied with the Public Procurement and Asset Disposal Act (PPADA)* 5. *Whether the Petitioner rendered services and is entitled to outstanding sum of Kshs. 587, 383/-* ***Whether the Petition discloses a competent constitutional controversy and, whether the time taken to file the Petition constitutes inordinate and unreasonable delay*** 1. This issue is double-pronged. It generally targets two preliminary questions which could be dispositive for if the Court finds for any of them, there would not proceed to trial on merits of the Petition. 2. I will begin with whether the competence of the Petition, that is, if it discloses a cognizable constitutional controversy. Court’s frown at attempts to constitutionalize ordinary legal disputes into constitutional litigation. The *doctrine of constitutional avoidance* thus serves to divert such matters from the constitutional jurisdiction of the Court. Consequently, the High Court will not exercise its constitutional jurisdiction if it is clear that the issue can adequately be resolved by application of the statute, regulatory regime or through any other lawful instrument. This ensures that the Constitution is not unnecessarily engaged in matters where there are other available legal remedies. 3. The significance of the doctrine was underscored in 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** where the Court held 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 options 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. In that regard, the Court of Appeal stated in Sumayya Athmani Hassan v Paul Masinde Simidi & another [2019] eKLR as follows:* *… where a legislation has been enacted to give effect to a constitutional right, it is not permissible for a litigant to found a cause of action directly on the Constitution without challenging the legislation in question. That principle has been reinforced by the Supreme Court in Communications Commission case (supra).* *[17] In conclusion, we find that the alleged unlawful interdiction and termination of a contract of employment was not a constitutional issue and thus the petition did not disclose a cause of action anchored on the Constitution. Accordingly, the petition being incompetent, the court acted in excess of jurisdiction and erred in law in determining the petition…”* 1. And in **Council of County Governors v Attorney General & 12 others (2018) eKLR** the Court stated: *“59. The doctrine of avoidance is primarily viewed by courts from the position that although a court could take up a matter and hear it, it would still decline to do so if there is another mechanism through which the dispute could be resolved. In that regard, the Supreme Court stated in Communication Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 others (supra) (at para 256) that the principle of avoidance means that a Court will not determine a constitutional issue when a matter may properly be decided on another basis.* *60. In the South African case of S v Mhlungu, [1995] (3) SA 867 (CC), Kentridge AJ, stated in the dissenting opinion respecting the principle of avoidance (at paragraph 59), that he would lay 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. And in Ashwander v Tennessee Valley Authority, 297 U.S. 288, 347 (1936)), the U.S. Supreme Court held that it would not decide a constitutional question which was properly before it if there was also some other basis upon which the case could have been disposed of.”* 1. In the instant matter, having fully considered the pleadings and the submissions, it is manifest that the substratum of this Petition is fundamentally a commercial dispute between the Petitioner and the Respondent. The controversy is defined by three key issues; whether a valid and binding contract existed between the Petitioner and the Respondent, whether the specified procurement procedures per the Public Procurement and Disposal Act, 2015 were complied with, and whether the Petitioner’s alleged outstanding claim of Kshs. 587, 383/- should be settled. 2. This Petition is therefore is not a genuine constitutional controversy is rooted in the direct infringement of the Constitution. In my considered view, it is an ordinary commercial dispute arising from alleged breach of contract but the Petitioner has disguised and constitutionalized it into a constitutional claim. This approach is what has been deprecated in judicial precedents alluded to as impermissible trivialization of the Constitution by elevating disputes capable of being resolved through application of statutory law or common law into constitutional controversies. A Constitutional remedy is an extraordinary relief of last resort which should not be used to substitute ordinary commercial or civil disputes. Taking that route will not only overload the constitutional jurisdiction of this Court but could end up making the other legal remedies superfluous. 3. It is therefore the finding of this Court that the instant Petition is incompetent for offending the doctrine of constitutional avoidance. 4. Having arrived at this finding, the Court need not determine any other issue as it cannot assume jurisdiction over the remainder of the issues. I must down my judicial tools at this juncture. 5. The upshot therefore is that the Petition is dismissed in entirety with costs to the Respondents. ***Dated, signed and delivered virtually at Nairobi this 28th May, 2026.*** **………………………………………** **L.N. MUGAMBI** **JUDGE**