https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7767

Emilio v Chief Officer, Environment, Nairobi City County Government & 7 others (Petition E123 of 2026) [2026] KEHC 7767 (KLR) (Civ) (4 June 2026) (Ruling) Neutral citation: [2026] KEHC 7767 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Civil Petition E123 of 2026 MO Ado, J June 4, 2026 Between Jeremy Kinyua Emilio Petitioner and Chief Officer, Environment, Nairobi City County Government 1st Respondent Nairobi City County Government 2nd Respondent Director, Supply Chain Management, Nairobi City County Government 3rd Respondent County Secretary, Nairobi City County Government 4th Respondent Hon. Attorney General 5th Respondent Controller of Budget 6th Respondent Ethics And Anti-Corruption Commission 7th Respondent and Zoomlion Ghana Limited Interested Party Ruling 1.The Petitioner, Jeremy Kinyua Emilio, posing as a public interest litigant, moved this Court via a Petition and a Notice of Motion application, both dated 3rd March 2026. The Petitioner seeks several constitutional declarations, an order of certiorari to quash the award of Tender No. NCC/ENV/RFP/109/2025-2026, and conservatory orders restraining the 1st to 4th Respondents from executing any contract with the Interested Party, Zoomlion Ghana Limited. 2.The impugned procurement process concerns a Request for Proposal (RFP) issued by the Nairobi City County Government for the design, construction, operation, maintenance, and transfer of an integrated solid waste management system. The Interested Party was notified of the intention to award the contract via a notification letter dated 6th February 2026. 3.In response, the 1st, 2nd, 3rd, and 4th Respondents raised a Notice of Preliminary Objection dated 13th March 2026, seeking the striking out of the entire petition on the following foundational grounds:i.The Petitioner lacks locus standi to institute the Petition as it fails to disclose concrete violations of personal rights, relying instead on hypothetical overlaps with other local service providers.ii.The Petition is incurably and fatally defective as it directly offends the doctrine of exhaustion of statutory remedies.iii.This Court lacks jurisdiction to hear and determine public procurement disputes which fall squarely under the statutory purview of the Public Procurement Administrative Review Board (PPARB) pursuant to Section 167 of the Public Procurement and Asset Disposal Act (PPADA), 2015 4.Similarly, the 6th Respondent, the Controller of Budget, filed her Grounds of Opposition dated 28th April 2026 contesting the jurisdiction of this Court to entertain the dispute in light of statutory frameworks and the doctrine of exhaustion, arguing that the claims against the office are entirely premature, speculative and frivolous. 5.According to the Controller of Budget, no public funds can be accessed outside the statutory Exchequer Requisition Guidelines, and that any underlying tendering dispute must be strictly determined by the PPARB under Sections 167–175 of the PPADA, 2015. 6.The Petitioner, on the other hand, asserts that this Court is properly clothed with jurisdiction under Articles 22, 23, 159, and 165 of the Constitution because the Petition raises weighty counts of gross unconstitutionality, bad faith, discrimination, and a threat to public funds running into billions of shillings. 7.The Petitioner contended that because he was neither a candidate nor a tenderer in the subject procurement process, he lacks the statutory locus standi to move the PPARB under Section 167(1) of the PPADA, 2015. He argues that the High Court remains his only port of call to protect the public interest and safeguard the rule of law. 8.The Petitioner maintained that the award was unlawful, unconstitutional, and discriminatory. He alleges, among other things, that local service providers are already rendering similar services under existing contracts, that the award was made in favour of a foreign entity for an extended period, that procurement procedures were not followed, and that the award threatens public resources and constitutional values. 9.On the basis of those allegations, the Petitioner seeks conservatory and substantive reliefs restraining the implementation of the tender award. 10.On 16th March 2026, this Court gave directions for the filing of submissions. As at the time of writing this Ruling, only the 1st to 4th Respondents filed their consolidated submissions dated 14th April 2026. No submissions were filed on behalf of the other parties, including the Petitioner. Analysis and Determination 11.I have carefully considered the pleadings, the submissions on record and the applicable law. The primary issue for determination is whether this Court lacks jurisdiction on account of the exhaustion doctrine. 12.Jurisdiction is the foundation upon which judicial authority rests. Without it, a court cannot lawfully proceed to determine a matter. The Supreme Court in Samuel Kamau Macharia v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR was categorical that:“A court’s jurisdiction flows from either the Constitution or legislation or both. A court of law can only exercise jurisdiction as conferred by the Constitution or other written law.” 13.Similarly, the Court of Appeal in Owners of the Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd (1989) KLR 1 famously held that:“Jurisdiction is everything. Without it, a court has no power to make one more step.” 14.It therefore follows that where a challenge is raised regarding jurisdiction, as in the present case, the court must first determine that question at the earliest opportunity. 15.In the present case, the 1st to 4th Respondents submitted that the Petition is fundamentally a challenge to a procurement process and procurement decision. They argue that Parliament has established a comprehensive dispute resolution mechanism under the Public Procurement and Asset Disposal Act, 2015 (“the PPADA”) and that any aggrieved party ought first to seek redress before the Review Board. 16.They further contend that the Petitioner has not demonstrated any exceptional circumstances warranting the Court’s intervention in the first instance and that the Petition has been presented as a constitutional petition merely to circumvent the statutory dispute resolution framework. 17.The 6th Respondent similarly contends that the allegations touching on procurement, approvals and expenditure of public funds are speculative and premature and that no constitutional violation has been pleaded against it with the precision required by law. 18.The doctrine of exhaustion of remedies is a rule of law requiring a party to first utilize all available statutory or administrative dispute-resolution mechanisms before approaching a court of law. Courts will ordinarily decline jurisdiction where a statute has provided a specific procedure for resolving the dispute, and that procedure has not been exhausted. This is the principle in Speaker of the National Assembly v Karume [1992] KECA 42 (KLR), where the Court of Appeal stated as follows:“In our view, there is considerable merit in the submission 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. We observe without expressing a concluded view that order 53 of the Civil Procedure Rules cannot oust clear constitutional and statutory provisions.” 19.Similarly, the Court of Appeal in R v National Environmental Management Authority, CA No 84 of 2010; [2011] eKLR adopted a similar approach and stated that:“The principle running through these cases is where there was an alternative remedy and especially where parliament had provided a statutory appeal procedure, it is only in exceptional circumstances that an order for judicial review would be granted, and that in determining whether an exception should be made and judicial review granted, it was necessary for the court to look carefully at the suitability of the statutory appeal in the context of the particular case and ask itself what, in the context of the statutory powers, was the real issue to be determined and whether the statutory appeal procedure was suitable to determine it ..." 20.The same position was reiterated in Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others [2015] eKLR, where the Court observed that courts ought to be fora of last resort and should not be approached where adequate dispute resolution mechanisms exist. 21.The principles expressed in the above cases have been upheld by the Supreme Court in the case of Nicholus v Attorney General & 7 Others [2023] KESC 113 (KLR), where the Court stated as follows: -“The principle, expressed in the above decision, which we agree with, is therefore that, where there is an alternative remedy, especially where Parliament has provided a statutory appeal procedure, then it is only in exceptional circumstances that the court can resort to any other process known to law.” 22.In Kenya, the exhaustion doctrine has been codified under Section 9(2) of the Fair Administrative Action Act, which provides:“The High Court or a subordinate court under subsection (1) shall not review an administrative action or decision unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted. 23.The statute, however, recognizes that the doctrine is not absolute. Section 9(4) of the Act allows a court to exempt a party from the exhaustion requirement where exceptional circumstances exist. The provision states that:“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.” 24.In William Odhiambo Ramogi & 3 Others v Attorney General & 4 Others; Muslims for Human Rights & 2 Others (Interested Parties) [2020] eKLR, the High Court held that the exhaustion doctrine may not apply where: the alternative remedy is ineffective; the statutory forum lacks jurisdiction to determine the dispute, or the dispute raises substantial constitutional issues. 25.Similarly, the Supreme Court in Nicholus v Attorney General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties) [2023] KESC 113 (KLR), endorsing the nuanced approach, held that the exhaustion doctrine must be applied pragmatically and contextually, rather than mechanically and that courts must evaluate the adequacy of the alternative remedy in the specific circumstances of the case. The Court stated that:“We agree with the above reasoning and find that the availability of an alternative remedy does not necessarily bar an individual from seeking constitutional relief. This is because the act of seeking constitutional relief is contingent upon the adequacy of an existing alternative means of redress. If the alternative remedy is deemed inadequate in addressing the issue at hand, then the court is not restrained from providing constitutional relief. But there is also a need to emphasize the need for the court to scrutinize the purpose for which a party is seeking relief, in determining whether the granting of such constitutional reliefs is appropriate in the given circumstances. This means that a nuanced approach to the relationship between constitutional reliefs for violation of rights and alternative means of redress, while also considering the specific circumstances of each case to determine the appropriateness of seeking such constitutional reliefs, is a necessary prerequisite on the part of any superior court. 26.The Supreme Court further stated that:“Flowing from the above findings and in that context, it is our view that, where the reliefs under the alternative mechanism are not adequate or effective, then there is nothing that precludes the adoption of a nuanced approach, as we have stated. What must matter at the end is that a path is chosen that safeguards a litigant’s right to access justice while also recognizing the efficiency and specificity that established alternative dispute resolution mechanisms can offer. This is because, to achieve a harmonious and effective legal framework, it is imperative to strike a judicious balance between the emphasis on providing the initial opportunity for resolution to entities established by law and the assertion of a litigant’s right to access the court. However, such convergence requires a case-by-case assessment by considering issues such as the nature of the dispute and the adequacy of the alternative dispute mechanism. See also our decision in Bia Tosha Distributors Ltd v Kenya Breweries Ltd & 6 Others (Pet No 15 of 2020) [2023] KESC 14(KLR) (Const. and JR) (17 February 2023) (Judgment).” 27.In the present case, the Court notes the record that the present Petition challenges the legality and constitutionality of the award of Tender No. NCC/ENV/RFP/109/2025-2026. The grievances pleaded concern the manner in which the procurement process was conducted, the eligibility of the successful bidder, alleged non-compliance with procurement requirements, alleged discrimination against local service providers and the legality of the award itself. 28.These are matters arising directly from a procurement process. 29.As correctly submitted by the Respondents, the Court concurs that the PPADA establishes a specialised statutory framework for review of procurement decisions. Sections 167 to 175 thereof confer jurisdiction upon the Public Procurement Administrative Review Board to hear and determine disputes arising from procurement proceedings. 30.The Petitioner has invoked numerous constitutional provisions and framed the dispute as a constitutional petition. However, the mere invocation of constitutional provisions does not, without more, oust the doctrine of exhaustion. 31.A look at the reliefs sought in the Petition reveals that every single prayer is aimed at stopping or quashing the procurement process of Tender No. NCC/ENV/RFP/109/2025-2026. Under Section 173 of the PPADA, the PPARB is given extensive powers to handle these exact grievances. It can alter the decisions of an accounting officer, strike down a non-responsive bid, or cancel a procurement process in its entirety. 32.The remedies the Petitioner seeks can fully be obtained before the specialized Board. The constitutional violations he pleads are not standalone queries of constitutional interpretation; they are dependent entirely on whether the procurement rules were followed. They are classic examples of "bootstraps" used to secure a direct ticket to the High Court. They cannot be allowed to bypass the rule of exhaustion. 33.The Petitioner has not sufficiently demonstrated that he invoked the statutory mechanism or that the mechanism was unavailable, ineffective or inadequate. 34.Neither has he sufficiently demonstrated any exceptional circumstances that would justify bypassing the statutory process and inviting the Court to assume original jurisdiction over a procurement dispute. 35.The Respondents also challenged the Petitioner’s locus standi. However, the Court is mindful that Articles 22 and 258 of the Constitution broaden standing in constitutional litigation. However, having found that the Petition is barred by the doctrine of exhaustion, I find it unnecessary to delve deeply and make any findings on the issue. 36.The upshot of the foregoing is that I find that this Court lacks jurisdiction to entertain the Petition in the first instance. 37.Accordingly, the Preliminary Objection raised by the 1st to 4th Respondents is sustained. I make the following orders:i.The Petition and the Notice of Motion application dated 3rd March 2026 are hereby struck out.ii.The matter having been brought under the guise of public interest litigation, each party shall bear its own costs. 38.It is so ordered. DATED, SIGNED, AND DELIVERED AT NAIROBI THIS 4TH DAY OF JUNE 2026HON. MR. JUSTICE MOSES ADOJUDGE OF THE HIGH COURTIn the Presence of:Moses C/A………………for the Applicant/Petitioner……………for the 6th Respondent…………for the 1st – 4th Respondents