[2022] KEHC 26987 (KLR)

[2022] KEHC 26987 (KLR)

The court held that the substratum of the petition was alleged non-compliance with procurement procedures under the Public Procurement and Asset Disposal Act. The Act provides a comprehensive dispute resolution framework, including administrative review before the Review Board and complaints to the Regulatory Authority, which must be exhausted before invoking the court's jurisdiction. The petitioner, though not a candidate or tenderer, could have sought leave to participate in review proceedings or lodged a complaint with the Regulatory Authority. There was no evidence that the petitioner attempted to utilize these remedies or was denied access. The court found that the doctrine of...

Citation
[2022] KEHC 26987 (KLR)
Parties
Applicant: Ezekiel Otieno (suing on his own behalf and on behalf of the General Public); Respondent: Funds Account Manager, Mathare National Constituency Development Fund; Respondent: Mathare National Government Constituency Development Fund, Mathare NGCDF; Respondent: CDF Committee, Mathare National Government Constituency Development Fund – Mathare NG-CDF Office; Respondent: Public Procurement Review Board; Respondent: Public Procurement and Regulatory Authority; Respondent: Anthony Oluoch; Respondent: Oris & Sons Contractors Limited; Respondent: Fixkar E.A. Group Limited; Respondent: Laville Enterprises Limited; Respondent: Flex (K) Limited; Respondent: Graville Enterprises; Respondent: Safa Service Providers Limited; Respondent: Mercow Engineering and Gen Supplies Limited; Respondent: Property Sustainability and Services Solution Limited; Respondent: Ethics and Anti-Corruption Commission; Respondent: Kevin Mcakech
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
22 March 2022
Case Number
Petition E035 of 2022
Procedural Posture
Constitutional Petition / Ruling on Preliminary Objection
Outcome
petition and notice of motion struck out for being premature; preliminary objections upheld
Legal Topics
Public Procurement, Judicial Review, Doctrine of Exhaustion, Administrative Remedies, Constitutional Rights, Tender Disputes
Source Language
English
Administrative Law Commercial and Corporate Public Procurement Judicial Review Doctrine of Exhaustion Administrative Remedies Constitutional Rights Tender Disputes

Case Brief

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Parties

Ezekiel Otieno (suing on his own behalf and on behalf of the General Public)

Applicant

Funds Account Manager, Mathare National Constituency Development Fund

Respondent

Mathare National Government Constituency Development Fund, Mathare NGCDF

Respondent

CDF Committee, Mathare National Government Constituency Development Fund – Mathare NG-CDF Office

Respondent

Public Procurement Review Board

Respondent

Public Procurement and Regulatory Authority

Respondent

Anthony Oluoch

Respondent

Oris & Sons Contractors Limited

Respondent

Fixkar E.A. Group Limited

Respondent

Laville Enterprises Limited

Respondent

Flex (K) Limited

Respondent

Graville Enterprises

Respondent

Safa Service Providers Limited

Respondent

Mercow Engineering and Gen Supplies Limited

Respondent

Property Sustainability and Services Solution Limited

Respondent

Ethics and Anti-Corruption Commission

Respondent

Kevin Mcakech

Respondent

Procedural Posture

Constitutional Petition / Ruling on Preliminary Objection

Legal Issues

  1. 1 Whether the High Court has jurisdiction to hear a petition challenging procurement processes before exhaustion of statutory remedies under the Public Procurement and Asset Disposal Act.
  2. 2 Whether the petitioner, not being a candidate or tenderer, is entitled to seek redress directly in the High Court for alleged procurement irregularities.
  3. 3 Whether the doctrine of exhaustion applies to procurement disputes involving alleged constitutional violations.

Ratio Decidendi

The court held that the substratum of the petition was alleged non-compliance with procurement procedures under the Public Procurement and Asset Disposal Act. The Act provides a comprehensive dispute resolution framework, including administrative review before the Review Board and complaints to the Regulatory Authority, which must be exhausted before invoking the court's jurisdiction. The petitioner, though not a candidate or tenderer, could have sought leave to participate in review proceedings or lodged a complaint with the Regulatory Authority. There was no evidence that the petitioner attempted to utilize these remedies or was denied access. The court found that the doctrine of...

Court Disposition

petition and notice of motion struck out for being premature; preliminary objections upheld

Orders

  • The petition and notice of motion dated 24th January, 2022 are struck out for being premature.
  • Costs awarded to the 3rd respondent, 7th, 8th, 10th, and 11th Interested Parties.