Henrick Nyongesa Pilisi v Speaker of the National Assembly & 2 others

**REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CONSTITUTIONAL AND HUMAN RIGHTS DIVISION PETITION NO.330 OF 2017** **BETWEEN** **HENRICK NYONGESA PILISI.....…….............................PETITIONER** **VERSUS** **SPEAKER OF THE NATIONAL ASSEMBLY…...……...1ST RESPONDENT** **CLERK OF THE NATIONAL ASSEMBLY………………2ND RESPONDENT** **DIRECTOR OF PUBLIC PROSECUTIONS……..........3RD RESPONDENT** **JUDGMENT** **Introduction** 1. The Petition dated 30th June 2017 was amended on 17th September 2020 and is supported by the Petitioner’s supporting affidavit of similar date. This litigation revolves around the findings and recommendations of the National Assembly’s Public Accounts Committee (PAC) contained in its report on the Special Audit of the National Youth Service (NYS) which found the Petitioner culpable for procurement irregularities and abuse of office during his tenure as the Principal Supply Chain Management Officer at the NYS. Consequently, the Petitioner challenges the legality of the Committee's adverse findings against him asserting that the same was reached in breach of the rules of natural justice, without affording him a fair hearing and in disregard of the evidence and applicable procurement law. Accordingly, the Petitioner seeks the following relief against the Respondents: 2. **A declaration that paragraph 3.1.35. part 5, paragraph 10 and recommendations 3 and 14 of part VI (Recommendations) of the Report of the Public Accounts Committee inquiring into the happenings at the National Youth Service violate the Petitioner's rights guaranteed by Articles 27 and 50 of the Constitution.** 3. **An order of certiorari to bring into this court and quash paragraph 3.1.35. part 5, paragraph 10, and recommendations 3 and 14 of part VI (Recommendations) of the Report of the Public Accounts Committee inquiring into the happenings at the National Youth Service.** 4. **An order of prohibition directed at the 3rd Respondent prohibiting them from taking any action against the Petitioner on the strength of the observations, findings and recommendations at paragraph 3.1.35, part 5, paragraph 10, and recommendations 3 and 14 of part VI (Recommendations) of the Report of the Public Accounts Committee inquiring into the happenings at the National Youth Service Costs of and incidental to this Petition.** 5. **An award of special damages for loss of employment and general damages for causing a wrong repute to the Petitioner and thus making it difficult to get employment.** 6. **Such other or further orders as the court may deem just and expedient** **to grant.** **Petitioner’s Case** 1. The Petitioner depones that he served as the principal supply chain management officer at the National Youth Service (NYS) after joining the government as a supplies officer in 1994 and rising through the ranks. He informs that his responsibilities under the Public Procurement and Disposal Act, 2005 and the Public Procurement and Disposal Regulations, 2006 included managing suppliers, ensuring procurements complied with the law, and authorizing payments only upon certification by the inspection and acceptance committee that goods had been supplied in the requisite quantities and standards. He asserts that he discharged those duties diligently until changes occurred in the government's procurement structure fundamentally altering the procurement process within the Ministry. 2. According to the Petitioner, following a resolution by the 11th Cabinet, Cabinet Secretaries assumed supervisory and approval powers over procurement matters that had previously been exercised by Principal Secretaries as accounting officers. He further avers that the Public Service Commission delegated additional human resource functions to Cabinet Secretaries, leading to extensive restructuring within the NYS. As a consequence, the then Cabinet Secretary allegedly deployed advisors to various departments to oversee and micro-manage procurement operations, resulting in frequent changes of senior procurement officers and creating an environment susceptible to procurement malpractice. 3. He further informs that some procurement processes were initiated, concluded and later transferred to the NYS by the Ministry itself. He notes that many of the suppliers questioned during subsequent investigations had been pre-qualified by the Ministry of Public Works and supplied common-user items at competitive prices. The Petitioner depones that upon observing procurement irregularities, he personally contacted the Ethics and Anti-Corruption Commission (EACC) seeking its intervention and advice regarding the happenings at the NYS. He however decries that this evidence was ignored during the subsequent 1st Respondent’s investigations. 4. He avers that on 18th November 2014, he was confronted by the then Cabinet Secretary for allegedly delaying the process and was thereafter issued with a show cause letter dated 20th February 2015. He maintains that he was instructed by the Cabinet Secretary to utilize existing supplies branch contracts and that only a limited number of contractors under those contracts could supply the required construction materials. He argues that this evidence remained uncontroverted but was disregarded by the 1st Respondent in its investigations. 5. The Petitioner further states that vide a letter dated 5th October 2016 and 19th October 2016, he was invited by the Public Accounts Committee (PAC) to respond to issues arising from the Auditor-General's Special Audit Report on the NYS. The Committee requested him to prepare a comprehensive report addressing, among other matters, the procurement plan, procurement relating to the Kibera road project valued at Ksh.791,385,000, alleged use of forged supplies branch contracts, payments for various supplies amounting to Kshs. 609,252,760.60, consultancy services, publicity contracts, among others. He depones that he complied by submitting a comprehensive written response and was subsequently invited to appear before the Committee on 26th October 2016, where he also gave oral evidence. 6. The Petitioner complains that despite his written and oral explanations, the Committee disregarded the evidence he presented and proceeded to make adverse findings against him. Specifically, the Committee found that he had failed to discharge his duties effectively, approved procurement founded on forged supplies branch contracts, failed to verify the authenticity of those contracts, approved fraudulent payments through IFMIS, failed to ensure compliance with procurement regulations, and was culpable for abuse of office and lastly, contravened the Public Procurement and Disposal Act, 2005 and the Regulations, thereby occasioning loss of public funds. The Petitioner alleges that those findings were reached in disregard of the evidence before the Committee and were inconsistent with other observations contained in the Committee's own report. 7. He as well argues that several of the adverse findings were made without affording him an opportunity to respond to the specific allegations. Particularly, he asserts that he was only requested to explain the documentary support relating to payments amounting to Kshs. 609,252,760.60, but was never asked to address allegations that the relevant supplies branch contract was forged, before the Committee concluded that he had approved a fraudulent procurement. Similarly, he maintains that findings concerning the alleged fraudulent double payment to the Consulting House and the purported fraudulent procurement of goods and services amounting to Ksh. 695,400,000 were made without those issues ever being put to him for explanation. He therefore postulates that the Committee violated the rules of natural justice by condemning him on matters in respect of which he was never heard. 8. The Petitioner also asserts that several of the Committee's conclusions were legally and factually erroneous because they demonstrated a misunderstanding of his statutory mandate and the procurement process under the IFMIS system. He contends that the Committee wrongly concluded that procurements exceeding Kshs. 2 million required ratification by the Ministerial Tender Committee under Regulation 10(2)(h) of the Public Procurement Regulations, whereas supplies branch transactions were governed by different legal provisions and did not require such ratification. 9. He further stresses that acquisitions from the supplies branch were not public procurements within the meaning of the procurement law and that the Committee ignored evidence relating to other forged contracts originating from the supplies branch. He consequently contends that the impugned findings were irrational, procedurally unfair, unsupported by the evidence and reached in disregard of the applicable law, thereby violating his constitutional rights. Additionally, he asserts that as a result of the 1st and 2nd Respondents’ action, he lost his employment due to the false accusations which tarnished his name and reputation, making it extremely difficult for him to secure employment thereafter. **1st and 2nd Respondents’ Case** 1. In reaction to the Petitioner’s case, these Respondents filed Grounds of Opposition dated 14th July 2017 on the basis that: 2. Parliamentary privilege which underpins the independence of the legislature does not allow for decisions of either House or its Speaker to be questioned by any court and therefore this Petition violates the provisions of Article 117 of the Constitution as well as the principle set out by the Court of Appeal in **Civil Appeal No. 157 of 2009; John Harun Mwau vs Dr. Andrew Mullei & Others**. 3. Pursuant to the holding in **Civil Appeal No.157 of 2009: John Harun Mwau vs Dr.Andrew Mullei & Others**, this Court should refrain from interfering with parliamentary proceedings and the Court ought to decline to grant the judicial review remedy sought of quashing a Report of Parliament thereby unduly interfering with the process of Parliament as sought by the Petitioners. 4. The Report of the Public Accounts Committee on the Special Audit Report on the Accounts of the National Youth Service (NYS) was prepared pursuant to the oversight role of Parliament over state organs by conducting investigations and enquiries into matters relating to its mandate as provided in Article 95 the Constitution and under the doctrine of separation of powers, this Court ought to restrain itself from interfering with the mandate of Parliament. 5. The National Assembly has a duty under the supreme law of Kenya to exercise oversight over national revenue and expenditure as provided in Articles 95(4) (c) and Article 95(5)(b) of the Constitution and the instant Application is an attempt to veto the National Assembly's oversight constitutional duty. 6. The Notice of Motion Application and the Petition lack any basis in law as the orders sought violate the constitutional power granted to Parliament to regulate its internal rules of procedure as well as the National Assembly (Powers and Privileges) Act. 7. The Petitioner herein seeks orders barring the 3rd Respondent herein from executing its mandate as provided in Article 157 of the Constitution and is an attempt to block a Report of Parliament which represents the will of the people and public interest. 8. The Petition herein seeks for this Court to delve into the merits of the decisions of the Public Accounts Committee of the National Assembly and therefore this Court ought to decline from sitting as an appellate court from the decision of a committee of the National Assembly. 9. The jurisdiction of this Court is limited to a review of the process employed by the National Assembly that led to the publication of the report, but the Court ought not to delve into the substance or merits of the report. 10. Any person aggrieved by any contents of a report adopted by a House Committee has the right in the first instance to appeal against the decision. The Petitioner did not exercise its right of appeal when the report was finalized and tabled for adoption. The Petitioner cannot therefore turn to this Court to appeal such a grievance since under Article 125 of the Constitution, both the High Court and a House of Parliament and/or of its Committees exercising the power under Article 125 of the Constitution, have concurrent jurisdiction. 11. Each of the three arms of Government ought to be allowed to conduct its affairs without undue interference from the other arms of Government and this Petition is a violation of the principle of separation of powers as it seeks for the Court to delve into matters of internal procedure of the Legislature. 12. The jurisdiction of this Court can only be invoked in the event of an excess of jurisdiction by way of breach of the Constitution and there has been no violation of the Constitution. 13. Additionally, the 1st and 2nd Respondents filed a Replying Affidavit sworn on 12th October 2017 by Michael Sialai, the then Clerk of the National Assembly and a further supplementary affidavit sworn on 4th April 2025 by Samuel Njoroge, the current Clerk of the National Assembly. 14. It is stated that pursuant to Standing Order No. 205(2) of the National Assembly Standing Orders, the PAC executes its mandate on the basis of annual and special audit reports. In that regard, the PAC requested the Auditor-General to undertake a Special Audit of the books of account of the NYS following widespread media reports concerning an alleged financial misappropriation scandal. According to the Auditor-General's Special Audit Report, the audit uncovered massive fraudulent activities involving losses amounting to Ksh. 791,385,000 and Ksh. 609,252,760.60, together with an attempted fraudulent payment of Ksh. 695,400,000, among other procurement irregularities. 15. It is deponed that by a letter dated 5th October 2016, the 2nd Respondent invited the Petitioner to appear before the PAC and provide information regarding the Auditor-General's findings. The Petitioner honoured that invitation and appeared before the Committee on 18th October 2016. Thereafter, he was invited to attend a further inquiry before the Committee on 26th October 2016. 16. He depones that upon concluding its investigations, the PAC prepared its report based on the documentary evidence presented and the testimony of witnesses, including that of the Petitioner. The Committee found that procurement procedures at the NYS had been blatantly breached, with tenders being awarded to firms lacking the requisite experience and supporting documentation. In particular, it found that the Petitioner's office utilized unverified Supplies Branch contracts without conducting due diligence and failed to submit procurements to the Ministerial Tender Committee for review and approval as required by law. Consequently, the PAC found the Petitioner, in his capacity as Head of Procurement, culpable for failing to discharge his statutory duties. 17. Particularly, the Committee found that the Petitioner approved procurement in IFMIS using fake Supplies Branch contracts amounting to Ksh. 609,252,760.60; approved a forged Supplies Branch contract without verifying its authenticity for the procurement of goods and services valued at Ksh. 791,385,000 and Ksh. 609,252,760.60; approved a fraudulent double payment of Ksh. 12.5 million to M/s Consulting House through IFMIS and approved a fraudulent procurement of goods and services amounting to Ksh.695,400,000, which was subsequently detected and reversed. 18. He further avers the PAC established that the Petitioner failed to ensure that all procurements exceeding Ksh. 2,000,000 were approved by the Ministerial Tender Committee, contrary to Section 10(2)(h) of the Public Procurement and Disposal Regulations, 2006. Ultimately, the Committee found the Petitioner culpable of abuse of office and directly liable for contravening the Public Procurement and Disposal Act, 2005 and the Regulations made thereunder. He stressed that this conduct led to the loss of public funds at the NYS. He depones that the PAC Report was subsequently adopted by the National Assembly on 24th May 2017 following a motion moved by Hon. (Eng.) Gumbo on 17th May 2017. 19. He maintains that the PAC Report and its recommendations were prepared strictly within the Committee's constitutional and statutory mandate and that any recommendations touching on criminal investigations were subject to the independent consideration of the 3rd Respondent. He asserts that the entire process culminating in the adoption of the Report fell squarely within the constitutional mandate of the National Assembly. Consequently, relying on the doctrine of separation of powers, he contends that the Court ought to exercise judicial restraint and refrain from interfering with Parliament's oversight mandate under Articles 95(4)(c) and 95(5)(b) of the Constitution. He as well argues that the Petitioner is improperly inviting the Court to sit on appeal against a decision of the National Assembly, contrary to the constitutional framework. Equally he notes that parliamentary privilege precludes courts from questioning proceedings or decisions of either House of Parliament. 20. Furthermore, he asserts that the Petitioner's allegation that he was denied an opportunity to be heard is false and an afterthought. He depones that the Petitioner was afforded sufficient opportunity to prepare and present his written submissions, as requested in the Committee's invitation letter, and to orally address the Committee during its proceedings. According to him, despite being afforded several opportunities to defend himself, the Petitioner voluntarily declined to fully utilize them. 21. It is further deponed that any person aggrieved by the contents of a report adopted by a House Committee ought, in the first instance, to challenge the report through the available parliamentary processes, which the Petitioner failed to do. On this basis, he argued that the Petitioner could not invoke the jurisdiction of this Court as an appellate forum against the findings of the Committee. He asserts that under Article 125 of the Constitution, Parliament and its Committees exercise powers equivalent to those of the High Court in summoning witnesses and receiving evidence. In his opinion, the Petitioner ought to have challenged the Committee's findings immediately after publication of the Report. Consequently, he maintains that this Court's jurisdiction can only be invoked where there had been an excess of jurisdiction or a breach of the Constitution, neither of which have been demonstrated in the instant case. 22. In the further supplementary affidavit, it is deponed that prior to the PAC inquiry, the Petitioner had already been charged before the Chief Magistrate's Court at Milimani in **Criminal Case No. 1905 of 2015** with conspiracy to defraud the National Youth Service of Kshs. 791 million. Subsequently, on 31st October 2024, the Petitioner was convicted of making a false document contrary to Section 347(a) as read with Section 349 of the Penal Code, as well as breach of trust by a person employed in the public service contrary to Section 127(1) as read with Section 127(2) of the Penal Code. On that premise, he asserts that the Petitioner suffered no prejudice from the PAC Report, as the criminal court ultimately found him guilty in relation to substantially the same matters that formed the basis of the Committee's findings. **3rd Respondent’s Case** 1. In opposition to the Petition, the 3rd Respondent filed a Replying Affidavit sworn on 13th February 2018 by the Prosecution Counsel, Laura Spira. 2. She depones that following the investigations into the alleged theft of approximately Kshs. 791 million from the NYS, a total of 26 suspects, including the Petitioner, were charged in **Criminal Case No. 1905 of 2015**, with further investigations also being undertaken into suspected money laundering arising from the same transactions. 3. She states that the decision to prosecute the Petitioner was reached upon consideration of the evidence gathered during investigations and pursuant to the constitutional powers conferred upon the 3rd Respondent under Article 157 of the Constitution. She denies that the decision was influenced by the findings contained in the PAC’s report or by any other extraneous considerations. Rather, she maintains that the 3rd Respondent independently applied both the evidentiary and public interest tests before approving the charges. 4. With regard to the Petitioner's account of his duties as the principal supply chain management officer, she asserts that the Petition essentially raises matters of defence which can only be determined during the criminal trial. Equally, she stresses that whether the Petitioner acted lawfully in the discharge of his duties, whether he bore criminal responsibility and the extent of his participation in the impugned transactions are issues to be established through evidence tendered before the trial court. She further avers that under Section 20 of the Penal Code, criminal liability extends to all persons who participate in the commission of an offence and therefore the Petitioner's assertion that he played only a nominal role cannot absolve him of criminal responsibility. 5. She further states that the Petitioner admitted examining 25 payment vouchers, which formed part of the transactions giving rise to the criminal charges. Moreover, she avers that institutional changes within the Ministry or the alleged reassignment of procurement functions did not exempt the Petitioner from complying with the law, particularly as there was no evidence that he had raised objections to those changes with the relevant authorities at the time. 6. In response to the Petitioner's allegations concerning procurement procedures at the NYS, she emphasizes that the criminal charges relate primarily to offences of theft, fraud and conspiracy arising from payments made to suppliers, rather than the procurement process itself and as such contends that the Petitioner cannot rely on the alleged irregularities in the procurement process to establish his innocence within the constitutional proceedings. 7. She further maintains that the 3rd Respondent is an independent constitutional body that is not bound by recommendations or decisions made by investigative agencies or parliamentary committees. She states that, in deciding whether to prosecute, the 3rd Respondent considered the sufficiency, admissibility and availability of the evidence together with the public interest requirements under Article 157(11) of the Constitution. She notes that the Petitioner failed to demonstrate how those constitutional standards were violated or how the 3rd Respondent had been improperly influenced by the PAC report. 8. Finally, it is deponed that the 3rd Respondent assembled substantial evidence against the Petitioner, including more than 55 witnesses and numerous documentary exhibits, all of which would be presented during the criminal trial. She underscores that questions regarding the sufficiency, admissibility and credibility of that evidence fall within the exclusive jurisdiction of the trial court and cannot properly be determined through a constitutional petition. She as such denies that the prosecution was actuated by malice, bad faith, harassment, abuse of process or any ulterior motive. She points out that the Petitioner would in any case enjoy all the safeguards of a fair trial under Article 50 of the Constitution. Consequently, she urges the Court to dismiss the Petition. **Parties’ Submissions** **Petitioner’s** 1. The Petitioner through LAK advocates filed submissions dated 23rd October 2017 and supplementary submissions dated 23rd October 2025. In the first set of submissions, Counsel outlined the issues for determination as: *whether the 1st Respondent’s decision against the Petitioner was procedurally fair, whether the 1st Respondent’s finding that the Petitioner was culpable of abuse of office and contravening the Public Procurement and Disposal Act was reasonable and whether there existed reasonable or probable cause for the 3rd Respondent to investigate or prosecute the Petitioner on the basis of the recommendations made by the 1st and 2nd Respondents*. 2. On the first issue, Counsel submitted that although the Petitioner had been invited by the PAC to appear before it and prepare a comprehensive report concerning the special audit on the NYS, the Committee ultimately disregarded his submissions when making its findings and recommendations and proceeded to hold him culpable for various procurement irregularities. Relying on Article 47 of the Constitution and Sections 4 and 7(2)(v) of the Fair Administrative Action Act, Counsel contended that procedural fairness required that the Petitioner be furnished with the evidence against him, afforded an opportunity to challenge that evidence through cross-examination where appropriate, present rebuttal evidence and address the decision-maker before adverse findings were made. Counsel maintained that the Petitioner was never heard as pertains several critical allegations, including the alleged approval of fraudulent procurements amounting to hundreds of millions of shillings and the alleged double payment to Consulting House Ltd. Considering this, Counsel underscored that PAC’s findings were reached in violation of the rules of natural justice. 3. In support of this argument, Counsel relied on **Onyango Oloo v Attorney General [1986–1989] EA 456**, where the Court held that the right to be heard is a fundamental principle of natural justice and that a decision reached in breach of that principle is null and void regardless of whether the same outcome would have been reached. Comparable reliance was placed on **Republic v Chief Justice of Kenya ex parte Moijo Mataiya Ole Keiwua [2010] eKLR**. 4. Counsel, on the second issue argued that the impugned decision was unreasonable within the meaning of Article 47 of the Constitution, the Fair Administrative Action Act and Article 24 of the Constitution. Counsel submitted that the Committee failed to consider material evidence that demonstrated the impugned procurements were undertaken at the headquarters of the Ministry of Devolution and not by the Petitioner personally. Counsel referred to a circular issued by the Ministry of Public Works directing all government ministries and departments to procure building materials from a prescribed list of suppliers, which, according to Counsel, demonstrated that procurement decisions were centrally coordinated. Counsel therefore contended that the Committee ignored relevant evidence in attributing the procurement irregularities solely to him. 5. Reliance was placed on **Associated Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223**, where it was held that: **“The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which ought not to have been taken into account or conversely have refused to take into account or neglected o take into account.”** 1. Counsel further argued that documentary evidence demonstrated that the Petitioner had previously been issued with a show-cause letter by the then Cabinet Secretary, in February 2015 for allegedly delaying supplies because he insisted on compliance with lawful procurement procedures. Counsel referred to a memorandum dated 28th January 2015 in which he requested verification of requisitions before procurement could proceed. Counsel contended that this demonstrated the Petitioner’s commitment to lawful procurement rather than participation in the alleged fraud. Tying to this, Counsel submitted that there was no involvement whatsoever by the Petitioner in the procurement of consultancy services awarded to Consulting House Ltd. Counsel noted that the consultancy originated from a proposal by Mutahi Ngunyi and approved by the Ministerial Tender Committee without his participation, that the same was negotiated by that Committee, and formally communicated by the Director General of the NYS. In light of this, Counsel stressed that the finding that he approved the alleged fraudulent double payment of Kshs. 12.5 million was unsupported by any evidence. 2. Turning to the third issue, Counsel submitted that, since the recommendations made by the 1st and 2nd Respondents were procedurally unfair and unreasonable, they could not constitute a lawful basis for criminal investigations or prosecution by the 3rd Respondent. Counsel contended that there existed no reasonable or probable cause to investigate or prosecute the Petitioner. To buttress this point reliance was placed on **Stephen Gachau Githaiga v Attorney General [2015] eKLR**, where the Court observed that: **“A reasonable and probable cause is an honest belief founded upon reasonable grounds that would lead a prudent and cautious person to conclude that the accused was probably guilty of the offence alleged.”** 1. On this premise, Counsel underscored that any criminal investigation or prosecution founded upon the impugned recommendations would unjustifiably limit his constitutional rights under Articles 24 and 47 of the Constitution. Reliance was placed on **Kuria & 3 Others v Attorney General [2002] 2 KLR 69**, where the High Court held that courts have both the power and duty to prohibit criminal prosecutions that are instituted for improper purposes or which amount to oppression, vexation or an abuse of the court process. Equal reliance was placed on **In Re the Matter of the Interim Independent Electoral Commission [2011] eKLR**. To that end, Counsel urged the Court to prohibit the 3rd Respondent from prosecuting the Petitioner on the basis of the impugned recommendations. 2. In the supplementary submissions, Counsel highlighted the key issues as: *whether the Petitioner is entitled to general damages for violation of his constitutional rights and causing him bad repute* and *whether the Petitioner is entitled to special damages for loss of employment*. 3. Counsel on the first issue submitted that the Petitioner having established that the 1st and 2nd Respondents acted unfairly and unreasonably, the Court should award him constitutional damages to vindicate his rights. Dependence was placed on **Wamwere & 2 Others v Attorney General [2024] KECA 487 (KLR)**, where the Court of Appeal held that constitutional remedies are intended not merely to compensate loss but also to vindicate constitutional rights, and that damages may be awarded even where no specific financial loss has been proved. Equal dependence was placed on **CMM (Suing as the next friend and on behalf of CWM) & 6 Others v The Standard Media Group & 4 Others [2023] KESC 68 (KLR)**, **Muthama v Hornbill Pub Limited (Constitutional Petition E005 of 2023) [2024] eKLR**, **Edward Akong'o Oyugi & 2 Others v Attorney General [2019] eKLR** and **Mokoit v Defence Council & Another [2025] eKLR**. 4. Counsel applying the cited principles in this case, submitted that the Petitioner suffered procedural unfairness, adverse findings made without a full opportunity to be heard, damage to his reputation, loss of employment and disruption of a career spanning 23 years in public service. Counsel further contended that the Parliamentary Committee ignored material evidence, including the Petitioner’s explanation that he complied with procurement laws and his efforts to expose procurement irregularities by reporting them to the Ethics and Anti-Corruption Commission. 5. On the second issue, Counsel submitted that the adverse findings made by the Public Accounts Committee directly resulted in the loss of his employment and permanently impaired his career prospects. Counsel argued that prior to the impugned findings he had served the government continuously since 1994, rising through the ranks from Supplies Officer to Principal Supply Chain Management Officer and would have continued progressing in public service if not for the Respondents' unlawful actions. 6. Particularly, Counsel argued that the entitled special damages include the Petitioner’s lost salary and employment benefits from the date of his constructive dismissal until retirement, pension contributions that would have accrued during the remainder of his career and the professional advancement opportunities that were closed because he could no longer continue in public service or obtain comparable employment. On that basis, Counsel urged the Court to award special damages representing all quantifiable financial losses flowing directly from the Respondents' unconstitutional conduct. **1st and 2nd Respondents’** 1. The 1st and 2nd Respondents filed submissions dated 2nd October 2017 and supplementary submissions dated 24th October 2025 through their Counsel, Sandra Nganyi. In the first set of submissions, Counsel identified the issues for discussion as: *whether the Parliament has an oversight role over public bodies and its officers, what are the circumstances in which the internal procedures of Parliament can be examined/impeached by a court of law, whether the process, proceedings and recommendations by the 1st Respondent are subject to the jurisdiction of this Court* and *what is the effect of the orders sought*. 2. On the first issue, Counsel submitted that the National Assembly is constitutionally mandated under Articles 95(4)(c) and 95(5)(b) of the Constitution to exercise oversight over national revenue, expenditure and State organs. This oversight mandate is discharged through parliamentary committees established under Article 124 of the Constitution, such as the PAC, whose functions are set out under the National Assembly Standing Order number 205.Counsel submitted that the PAC is specifically tasked to examine public expenditure, ensure accountability in the use of public resources and verify compliance with financial and procurement laws. 3. In light of this, Counsel submitted that the Committee acted within this constitutional mandate when it scrutinized the Auditor-General's Special Audit Report on the NYS, investigated the expenditure of public funds and made recommendations concerning the Petitioner. Counsel emphasized that the recommendations were motivated solely by public interest, following widespread concern over the loss of public funds. Equally that the recommendations were based on the Auditor-General's independent findings identifying irregular approvals, unsupported payments and procurement anomalies. As such, Counsel emphasized that the recommendations were made in good faith for the benefit of the Kenyan public and did not constitute any abuse of parliamentary power. 4. To buttress this point reliance was placed on **Judicial Service Commission v Speaker of the National Assembly & Others, Petition No. 518 of 2013**, where the Court held that parliamentary oversight is intended to serve the people, must be exercised within the law and is an essential mechanism for promoting accountability and the rule of law. 5. On the second issue, Counsel submitted that the matters complained of by the Petitioner concerns Parliament's internal proceedings, which are protected under Articles 117 and 124 of the Constitution and the National Assembly (Powers and Privileges) Act. Counsel argued that Parliament enjoys constitutional autonomy to regulate its own affairs and that courts ought to exercise restraint before interfering with parliamentary proceedings in line with the doctrine of separation of powers. It was in addition argued that whereas courts possess constitutional authority to determine whether Parliament has acted in violation of the Constitution, judicial intervention is only warranted where an actual or threatened constitutional violation has been demonstrated. In Counsel’s view, the Petitioner had failed to identify any constitutional provision that had been infringed by the Committee and therefore there existed no basis for invoking the High Court's jurisdiction under Article 165 of the Constitution. 6. Reliance was placed on **Speaker of the Senate & Another v Attorney General & 4 Others [2013] eKLR**, where the Supreme Court held that while courts may examine whether Parliament complied with constitutionally prescribed legislative procedures, they should not supervise Parliament's day-to-day internal workings. Equal reliance was placed on **Marbury v Madison, 5 U.S. 137 (1803)** and **Okiya Omtatah Okoiti & 3 Others v Attorney General & 5 Others [2014] eKLR**. Consequently, Counsel relying on **Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Limited [1989] KLR 1** argued that since the Petitioner had failed to demonstrate any constitutional violation, the Court lacked jurisdiction to entertain the Petition. 7. Turning to the third issue, Counsel submitted that parliamentary proceedings are protected by parliamentary privilege and absolute immunity and therefore cannot ordinarily be challenged before the courts. Counsel argued that the Petitioner seeks to challenge resolutions reached by Parliament in the exercise of its constitutional oversight function, contrary to the doctrine of separation of powers. Reliance was placed on **John Harun Mwau v Dr. Andrew Mullei & Others, Civil Appeal No. 157 of 2009**, where the Court of Appeal held that parliamentary debates and proceedings are generally immune from judicial review except in exceptional circumstances involving constitutional violations. As such, the Court held that parliamentary privilege protects everything said or done by Members in the course of parliamentary proceedings and that courts should not quash parliamentary proceedings merely because they are alleged to be erroneous. Considering this, Counsel urged the Court to decline the Petitioner’s invitation. 8. Comparable reliance was placed on **Prebble v Television New Zealand Ltd [1995] 1 AC 321, Speaker of the Senate & Another v Attorney General & 4 Others [2013] eKLR, Commission for the Implementation of the Constitution v National Assembly of Kenya & 2 Others [2013] eKLR, Patrick Ouma Onyango & 12 Others v Attorney General & 2 Others [2005] eKLR** and **Blackburn v Attorney General [1971] 1 WLR 1037**. 9. Concluding, Counsel emphasized that the remedies sought by the Petitioner were legally untenable. Particularly, the prayer to quash paragraph 3.1.35 of the Committee's Report, whilst the said paragraph merely reproduced the Petitioner's own evidence as recorded in the Hansard during his appearance before the Committee. Moreover, Counsel submitted that the Committee's findings regarding the Petitioner's culpability were properly drawn from the evidence presented before it, noting that as the Head of Procurement at NYS he bore the responsibility for ensuring compliance with procurement laws. 10. Regarding the prayer seeking to prohibit the 3rd Respondent from investigating or prosecuting the Petitioner, Counsel submitted that the request was misconceived because the 3rd Respondent exercises independent constitutional authority under Article 157 of the Constitution, including the power to direct investigations and institute prosecutions without requiring the consent or direction of any person or authority. As such, Counsel submitted that the Court should not interfere with the 3rd Respondent’s mandate in the absence of evidence of abuse of power. Ultimately, Counsel urged the Court to dismiss the Petition with costs. 11. In the supplementary submissions, Counsel highlighted the issue as: *whether the Court should grant the sought orders*. Counsel maintained that the Petition lacks merit as the Petitioner is bound by the pleadings contained in the amended Petition and cannot obtain reliefs that were neither pleaded nor sought. Reliance was placed on **David Sironga Ole Tukai v Francis Arap Muge & 2 others [2014] KECA 155 (KLR)**, where the Court held that: **“It is well established in our jurisdiction that the court will not grant a remedy, which has not been applied for, and that it will not determine issues, which the parties have not pleaded.”** 1. Counsel as well submitted that the Public Accounts Committee acted within its constitutional mandate under Article 95(4)(c) of the Constitution and Standing Order 205 of the National Assembly Standing Orders, which empower it to exercise parliamentary oversight over public expenditure and examine public accounts. 2. Regarding the alleged violation of Articles 27 and 50 of the Constitution, Counsel argued that no evidence was tendered to demonstrate either discrimination or denial of a fair hearing by the Petitioner. On the claim of discrimination, Counsel submitted that the Petitioner failed to establish that he was treated differently from any other person appearing before the Public Accounts Committee or that any differential treatment was based on a prohibited ground as underscored in **Okello & another v National Assembly & 2 others; Shop & Deliver Limited t/a Betika & 7 others (Interested Parties); Kiragu & 2 others (Cross Petitioners) [2022] KEHC 3059 (KLR)**, Like dependence was placed on **Pevans East Africa Limited v Betting Control and Licensing Board & 2 others; Safaricom Limited & another (Interested Parties) [2019] KEHC 4629 (KLR)** and **Harksen v Lane NO and Others (1997) 11 BCLR 1489 (CC)**. 3. On fair hearing, Counsel pointed out that the Petitioner admitted that he was invited before the Public Accounts Committee on two occasions, filed written submissions in his defence and that those representations were considered before the Committee reached its conclusions. Counsel noted that the Public Accounts Committee’s findings were subsequently reinforced by the Petitioner's prosecution and eventual conviction on 31st October 2024, for making a false document contrary to Section 347(a) as read with Section 349 of the Penal Code and breach of trust by a person employed in the public service contrary to Section 127(1) as read with Section 127(2) of the Penal Code. Consequently, Counsel took the view that the instant Petition is an attempt to challenge the factual findings made by the Public Accounts Committee. 4. With regard to the claims for special and general damages Counsel contended that the evidence adduced by the Petitioner does not support the claim. This is since the Petitioner admitted he had already lost his employment at the National Youth Service before appearing before the Public Accounts Committee and further conceded during cross-examination that he was currently employed as a lecturer at Jomo Kenyatta University of Agriculture and Technology (JKUAT). Counsel therefore submitted that the alleged loss of employment attributable to the Public Accounts Committee report was not proved. 5. Concluding, Counsel submitted that any claim founded upon statements contained in the Public Accounts Committee report is barred by Article 117 of the Constitution and Section 12(1) of the Parliamentary Powers and Privileges Act. Counsel added that in light of the Petitioner's subsequent criminal conviction arising from the NYS scandal, there was no reputation capable of being damaged by the Public Accounts Committee report. Accordingly, Counsel urged the Court to dismiss the Petition with costs. **3rd Respondent** 1. Principal Prosecution Counsel, Edna Ntabo filed submissions dated 29th October 2025, and highlighted the issues for discussion as: *whether the arraignment of the Petitioner was lawful, whether there has been violation of the Petitioner’s constitutional rights in the initiation of the charges* and *whether the arraignment of the Petitioner was lawful*. 2. On the first issue, Counsel submitted that the Petitioner's prosecution was lawfully commenced pursuant to Article 157(6) of the Constitution, which vests the 3rd Respondent with the independent constitutional mandate to institute and undertake criminal proceedings. To buttress this point reliance was placed on **Pauline Raget Adhiambo Agot v Director of Public Prosecutions & 5 Others, Petition No. 446 of 2015**, where it was held that: **“It must first be stated that the clear intention of the Constitution was to ensure that the Office of the Director of Public Prosecutions was free of any interference or meddling. No person or body including the court ought to instruct or direct the 1st Respondent on how to conduct its business as to investigating crime and prosecuting offenders. Indeed, it is the 1st Respondent who is enjoined under Article 157(4) of the Constitution to direct the National Police Service to investigate any criminal activities. On the other hand, members of the public are also morally obligated to report incidents of crime to the ODPP and DCI.”** 1. Comparable reliance was placed on **Republic v The Commissioner of Police & the Director of Public Prosecution Ex parte Michael Monari & Another Misc. Application No. 68 of 2011, Cascade Company Limited vs Kenya Association of Music Production (KAMP) & Others, Petition No. 7 of 2014 High Court** and **Maina & 4 Others v Director of Public Prosecutions & 4 Others, Constitutional Petition Nos. E106 & E160 of 2021 (Consolidated) [2022] KEHC 15 (KLR)**. 2. Counsel further argued that investigations were conducted by the Directorate of Criminal Investigations, which established reasonable suspicion that offences had been committed before forwarding the investigation file to the 3rd Respondent for review. As such, Counsel argued that the decision to charge was therefore made after consideration of a complete investigation file and in accordance with the law. Accordingly, it was submitted that the Petitioner had failed to demonstrate that the 3rd Respondent acted contrary to the dictates under Article 157(11) of the Constitution. 3. On the second issue, Counsel submitted that the Petitioner had not established any violation of his constitutional rights to justify the intervention by this Court. Reliance was placed on **Leonard Otieno v Airtel Kenya Limited [2018] eKLR** where it was held that: **“It is a fundamental principle of law that a litigant bears the burden (or onus) of proof in respect of the propositions he asserts to prove his claim. Decisions on violation of constitutional rights should not and must not be made in a factual vacuum. To attempt to do so would trivialize the constitution and inevitably result in ill-considered opinions. The presentation of clear evidence in support of violation of constitutional rights is not, a mere technicality; rather, it is essential to a proper consideration of constitutional issues. Decisions on violation of constitutional rights cannot be based upon the unsupported hypotheses.”** 1. Like dependence was placed on **William and Others v Spautz [1993] 2 LRC 659**, 2. Furthermore, Counsel stressed that a party alleging infringement of constitutional rights bears the burden of proving the alleged violation through clear evidence. Counsel similarly submitted that the Petition fails to meet the established threshold for constitutional petitions as set out in **Anarita Karimi Njeru v Republic (No. 1) [1979] KLR 154** and reaffirmed in **Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2014] eKLR.** 3. Counsel also invoked Article 160 of the Constitution, arguing that the independence and impartiality of the Judiciary guarantees the Petitioner a fair trial and therefore the mere institution of criminal proceedings cannot amount to a violation of constitutional rights. To this end, Counsel submitted that the Petition is frivolous, vexatious, incompetent and an abuse of the court process hence should be dismissed. **Analysis and Determination** 1. It is my considered view that the issues that arise for determination are: 2. **Whether the 1st and 2nd Respondent’s impugned decision through the PAC is subject to this Court’s intervention.** 3. **Whether the 1st and 2nd Respondent’s impugned decision through the PAC was procedurally fair.** 4. **Whether the Petitioner’s constitutional rights were violated by the Respondents.** 5. **Whether the Petitioner is entitled to the relief sought.** **Whether the 1st and 2nd Respondent’s impugned decision through the PAC is subject to this Court’s intervention.** 1. Under the doctrine of separation of powers, organs of Government are required to respect each other’s constitutional mandate. Courts are no exception. They must accord other organs of government due deference to discharge their constitutional functions and only interfere when there is threat of, any proven violation of the constitution or the law. In such an instance, the Court is constitutionally duty-bound to intervene. Article 2 (1) of the Constitution declares that the Court is the supreme law of the Republic and binds all persons and all state organs at both levels of government and while Article 2 (2) provides that no person may claim or exercise state authority except as authorized under the Constitution. 2. The Supreme court affirming the supremacy of the Constitution in the context of the doctrine of separation of powers and the central role played by the Court in ensuring the Constitutional principles are upheld held as follows in **Speaker of National Assembly-vs-Attorney General and 3 Others (2013) eKLR** “**Parliament must operate under the Constitution which is the supreme law of the land. The English tradition of Parliamentary supremacy does not commend itself to nascent democracies such as ours. Where the Constitution decrees a specific procedure to be followed in the enactment of legislation, both Houses of Parliament are bound to follow that procedure. If Parliament violates the procedural requirements of the supreme law of the land, it is for the courts of law, not least the Supreme Court, to assert the authority and supremacy of the Constitution. It would be different if the procedure in question were not constitutionally mandated. This Court would be averse to questioning Parliamentary procedures that are formulated by the Houses to regulate their internal workings as long as the same do not breach the Constitution.”** 1. Further in **Mate & another v Wambora & another [2017] KESC 1 (KLR)** Supreme Court**,** after a review of various judicial precedentsarticulated the principle of separation of powers as follows: **“63.From the course of reasoning emerging from such cases, it is possible to formulate certain principles, as follows:** **(a)each arm of Government has an obligation to recognize the independence of other arms of Government;** **(b)each arm of Government is under duty to refrain from directing another organ on how to exercise its mandate;** **(c) the courts of law are the proper judge of compliance with constitutional edict, for all public agencies; but this is attended with the duty of objectivity and specificity, in the exercise of judgment;** **(d) for the due functioning of constitutional governance, the courts be guided by restraint, limiting themselves to intervention in requisite instances, upon appreciating the prevailing circumstances, and the objective needs and public interests attending each case;** **(e)in the performance of the respective functions, every arm of Government is subject to the law.”** 1. In the comparative jurisprudence, the Constitutional Court of South Africa held in **Doctors for Life International v Speaker of the National Assembly and Others (CCT12/05) [2006] ZACC 11** thus: **“The constitutional principle of separation of powers requires that other branches of government refrain from interfering in parliamentary proceedings. This principle is not simply an abstract notion; it is reflected in the very structure of our government. The structure of the provisions entrusting and separating powers between the legislative, executive and judicial branches reflects the concept of separation of powers. The principle ‘has important consequences for the way in which and the institutions by which power can be exercised’..** ….. **But under our constitutional democracy, the Constitution is the supreme law. It is binding on all branches of government and no less on Parliament. When it exercises its legislative authority, Parliament ‘must act in accordance with, and within the limits of, the Constitution’, and the supremacy of the Constitution requires that ‘the obligations imposed by it must be fulfilled’. Courts are required by the Constitution ‘to ensure that all branches of government act within the law’ and fulfil their constitutional obligations. This Court ‘has been given the responsibility of being the ultimate guardian of the Constitution and its values.”** 1. Furthermore, in the South African case of **Hugh Glenister vs. President of the Republic of South Africa & Others Case CCT 41/08; [2008] ZACC 19** the Court stated **“In our constitutional democracy, the courts are the ultimate guardians of the constitution. They not only have the right to intervene in order to prevent the violation of the Constitution, they also have the duty to do so. It is in the performance of this role that courts are more likely to confront the question of whether to venture into the domain of other branches of government and the extent of such intervention. It is a necessary component of the doctrine of separation of powers that courts have a constitutional obligation to ensure that the exercise of power by other branches of government occurs within constitutional bounds.”** 1. The consistent principle that emerges from these authorities is that the doctrine of separation of powers does not immunize constitutional infractions. Where any arm of government threatens or has demonstrably violated the Constitution, Courts will intervene to uphold it. **Whether the 1st and 2nd Respondent’s impugned decision through the PAC was procedurally fair.** 1. The principles of natural justice require that a person receive a fair and unbiased hearing before a decision is made that will negatively affect them. The Halsbury’s Laws of England, 5th Edition Vol. 61 at page 539 Paragraph 639 on the rule of natural justice states as follows: **“The rule that no person is to be condemned unless that person has been given prior notice of the allegations against him and a f air opportunity to be heard the (audi alteram partem rule) is a fundamental principle of justice. This rule has been refined and adopted to govern proceedings of bodies other than Judicial tribunals, and duty to act in conformity with the rule has been imposed by common law on administrative bodies not required by statute or contract to conduct themselves in a manner analogous to a court. Moreover, even in the absence of any charge, the severity of the impact of an administrative decision on the interests of an individual may suffice itself to attract a duty to comply with this rule. Common law and statutory obligations of procedural fairness now also have to be read in right of the right under the convention for the protections of Human Rights and Fundamental Freedoms to a fair trial which will be engaged in cases involving the determination and civil rights or obligations on any criminal charge.”** 1. The Court of Appeal guided as follows in **Judicial Service Commission v *Mutava & another [2015] KECA 741 (KLR)****:* **“Natural Justice** **18.In exercise of its powers under the Constitution or under legislation, public officers, state officers, state organs and independent bodies or tribunals may make decisions which may be characterized as judicial, quasi-judicial or administrative depending on the empowering provision of the Constitution or the law. The landmark decision of the House of Lords in Ridge v. Baldwin [1964] AC 40 clarified the law, that the rules of natural justice, in particular right to fair hearing, (audi alteram partem rule) applied not only to bodies having a duty to act judicially but also to the bodies exercising administrative duties. In that case, Lord Hodson at page 132 identified three features of natural justice as:** **1.the right to be heard by an unbiased tribunal.** **2.the right to have notice of charges of misconduct** **3.the right to be heard in answer to those charges.** On his part, Lord Reid when dealing with class of cases of dismissal from office “where there must be something against a man to warrant his dismissal” said at page 66: **“There, I find an unbroken line of authority to the effect that an officer cannot be dismissed without first telling him what is alleged against him and hearing his defence or explanation.”** **19.The right to fair hearing as a rule of natural justice, a part of the common law, has in modern times been variously described as “fair play in action”, justice** **of the common law”; “common fairness” “fairness of procedure” or simply as “duty to act fairly.”** **As an example, in Wiseman v Borneman [1969] 3 All ER 275 in determining, inter alia, the question whether the principles of natural justice (right to fair hearing) had been followed Lord Morris of Borth-y-Gest denominated the issue as to one of whether the tribunal had “acted unfairly”.** **So did Lord Denning MR in Selvarajan v Race Relations Board [1976] 1 All ER 12 when dealing with the procedure of bodies required to make investigation where he said at page 19:** **“In all these cases it has been held that the investigating body is under a duty to act fairly; but that which fairness requires depends on the nature of the investigations and the consequence which it may have on the person affected by it.”** **There is scholarly debate and even judicial varying opinion as to whether natural justice is synonymous with the duty to act fairly and the application of the duty to act fairly in administrative law. On that question, Wade & CF Forsyth in the Administrative Law, 10th edition state at page 416 last paragraph, which I believe is the correct statement of the law, thus:** **“But it is now clearly settled, as is indeed self–evident, that there is no difference between natural justice and “acting fairly” but that they are alternative names for a single but flexible doctrine whose content may vary according to the nature of the power and the circumstances of the case”.** 1. Similarly, the Supreme Court of India in **A.K. Kraipak vs. Union of India, AIR 1970 SC 150** stated as follows: **“The aim of Natural Justice is to secure justice or to put it negatively, to prevent miscarriage of justice. These rules operate only in areas not covered by any law validly made. In other words they do not supplant the law but supplement it.”** 1. Equally in **Ramseth vs. Collector of Dharbang, AIR 155 PAT 345** the Court stressed as follows: **“There must be ever present to the mind of men the fact that our laws of procedure are grounded on the principle of Natural Justice which require that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings which affect their lives and property should not continue in their absence and that they should not be precluded from participating in such proceedings.”** 1. Congruently, the Supreme Court of Canada in **Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817** expressed this fundamental principle in the following way: **“The values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decision affecting their rights, interests, or privileges made using a fair, impartial and open process, appropriate to the statutory, institutional and social context of the decisions.”** 1. The Court proceeded to outline several factors that should be taken into consideration as follows: 2. **The nature of the decision being made and process followed in making it;** 3. **The nature of the statutory scheme and the term of the statute pursuant to which the body operates;** 4. **The importance of the decision to the individual or individuals affected;** 5. **The legitimate expectations of the person challenging the decision; and** 6. **The choices of procedure made by the agency itself*.*** 7. Article 47 of the Constitution protects the right to fair administrative action by providing as follows: **47. Fair Administrative action** **1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. 2) If a right and fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has a right to be given written reasons for the action.** 1. The Fair Administrative Actions Act, 2015 protects the rights of a person likely to be affected by an administrative decision. **Section 4 - Administrative action to be taken expeditiously, efficiently, lawfully etc** (1) Every person has the right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair. (2) Every person has the right to be given written reasons for any administrative action that is taken against him. (3) Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision– (a) prior and adequate notice of the nature and reasons for the proposed administrative action; (b) an opportunity to be heard and to make representations in that regard; (c) notice of a right to a review or internal appeal against an administrative decision, where applicable; (d) a statement of reasons pursuant to Section 6; (e) notice of the right to legal representation, where applicable; (f) notice of the right to cross-examine or where applicable; or (g) information, materials and evidence to be relied upon in making the decision or taking the administrative action. (4) The administrator shall accord the person against whom administrative action is taken an opportunity to– (a) attend proceedings, in person or in the company of an expert of his choice; (b) be heard; (c) cross-examine persons who give adverse evidence against him; and (d) request for an adjournment of the proceedings, where necessary to ensure a fair hearing. (5) Nothing in this section, shall have the effect of limiting the right of any person to appear or be represented by a legal representative in judicial or quasi-judicial proceedings. (6) Where the administrator is empowered by any written law to follow a procedure which conforms to the principles set out in Article 47 of the Constitution, the administrator may act in accordance with that different procedure. 1. It is thus manifest that the Constitution together with the Fair Administrative Actions Act provide for prior notice, reasons for the decision, an opportunity to be heard as key defining standards of reasonable and procedurally fair administrative action. Administrative actions that do not abide by these constitutional and statutory standards would be unconstitutional. 2. The question which this Court is required to answer is whether the Petitioner has proved that the respondent subjected him to an unfair process. 3. This petition principally challenges the recommendations of the National Assembly’s Public Accounts Committee (PAC) contained in the report of the Special Audit of the National Youth Service (NYS). The Committee found the Petitioner culpable for procurement irregularities and abuse of office while serving as the Principal Supply Chain Management Officer at the NYS. The petitioner contends the adverse findings against him asserting that they were reached in violation of the rules of natural justice, without affording him fair hearing and in disregard of the evidence and applicable procurement law. 4. The 1st and 2nd Respondents through the Replying Affidavit of Michael Sialai (the then clerk of the National Assembly) and Further Supplementary Affidavit sworn on 4th April, 2025 by Samuel Njoroge (current National Assembly Clerk) deposed that pursuant to Standing order 205 (2) of the National Assembly Standing orders, the Public Accounts Committee acts on annual and special audit reports. That following widespread media reports of alleged financial misappropriation at the National Youth Service, the PAC requested the Auditor General to conduct a special audit of the NYS books of account. 5. The Special Audit uncovered extensive fraudulent activities involving loss of Kshs. 791, 385,000/- and Kshs. 609,257, 760.60, and an attempted payment of Kshs. 695,400,000.00 and other payment irregularities. 6. By letter dated 5/10/2016; the 2nd Respondent invited the petitioner to appear before the PAC to respond to the Auditor General’s findings. The petitioner attended on 18/10/2016 and was later invited to a further inquiry on 26/10/2016. 7. After completing investigations, PAC prepared a report based on documentary evidence and witness testimony, including the Petitioner. The Committee found that procurement procedures at NYS had been blatantly breached: tenders were awarded to firms lacking experience and supporting documentation, the petitioner’s office used unverified supplies branch contract without due diligence and procurements were not submitted to Ministerial Tender Committee for review and approval as required by law. As Head of Procurement, Petitioner was found culpable for failing to discharge statutory duties. The Committee further found the Petitioner failed to ensure all procurements exceeding Kshs. 2,000,000 were approved by Ministerial Tender Committee contrary to Regulation 10 (2) (h) of Public procurement Disposal Regulation, 2006. 8. Specifically, PAC found that the Petitioner: 9. Approved procurement of IFMIS using fake supplies branch contracts amounting to Kshs. 609,252,760.60 10. Approved forged supplies branch contract without verifying authority for procurement for goods and services valued at Kshs. 791,385,000 and Kshs. 609,252,760.60 11. Approved fraudulent double payment of Kshs. 12.5 million to Ms. Consulting through IFMIS 12. Approved fraudulent procurement of goods and services amounting to Kshs. 695,400,000 (later dispatched and reversed). 1. It concluded that the Petitioner was culpable for the abuse of office and directly liable for contravening the Public Procurement and Disposal Act, 2005 and Regulation made thereunder, conduct that led to loss of public funds at NYS. The PAC Report was adopted by the National Assembly on 24/5/2017. 2. The Petitioner does in fact acknowledge that he was given an opportunity to appear before the PAC as contended by the 1st and 2nd Respondents. What he however insists is that his side of the story was totally ignored when PAC made its findings. He also alleges that the report contains findings not allegations. He was not given a chance to confront. 3. Regarding the merit or the substance of the PAC findings and recommendations, = the Court must be careful when invited to undertake such a review. In the exercising of supervisory jurisdiction, the Court does not sit as an appellate Chamber that would substitute in findings of fact for those arrived at by the PAC. A supervisory review is mainly concerned with the following: 4. **Whether the decision made was within the jurisdictional competence of the body concerned.** Under Article 95 (5) (2) of the Constitution, the National Assembly is mandated to exercise supervisory mandate over State Organs. Article 95 (3) ( c) further vests it with oversight over national revenue and expenditure. The Public Accounts Committee inquiry into the use of public funds at the National Youth Service through suspect/questionable procurement thus fell within the National Assembly constitutional oversight role hence was a matter within its jurisdictional competence to undertake. 1. **Whether the decision satisfies the requirement of reasonableness- that is, whether it is free from arbitrariness or irrationality and,** 2. **whether the decision making was procedurally fair, and in accordance with the principles of natural justice**. 3. Generally, Courts refrain from entertaining merit review in judicial review matters except in the very limited cases where **unreasonableness or irrationality is established**. Nevertheless, with the right to fair administrative action being a fundamental human right under the Constitution and is also statutorily protected, hence the strictness has been relaxed a little bit to include, to a certain degree some aspect of merit review as articulated by the Supreme Court in **John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR)** where the Court held as follows: **26. Judicial review is a constitutional supervision of public authorities involving a challenge to the legal and procedural validity of the decision. It does not allow the court of review to examine the evidence with a view of forming its own view about the substantial merits of the case. It may be that the tribunal whose decision is being challenged has done something which it had no lawful authority to do. It may have abused or misused the authority which it had. It may have departed from procedures which either by statute or at common law as a matter of fairness it ought to have observed. As regards the decision itself it may be found to be perverse, or irrational, or grossly disproportionate to what was required. Or the decision may be found to be erroneous in respect of a legal deficiency, as for example, through the absence of evidence, or through a failure for any reason to take into account a relevant matter, or through taking into account an irrelevant matter, or through some misconstruction of the terms of the statutory provision which the decision maker is required to apply. While the evidence may have to be explored in order to see if the decision is vitiated by such legal deficiencies, it is perfectly clear that in a case of review, as distinct from an ordinary appeal, the court may not set about forming its own preferred view of the evidence. See Reid v Secretary of State for Scotland [1999] 2 AC 512. …** **… Analysis of article 47 of the Constitution as read with the Fair Administrative Action Act reveals the implicit shift of judicial review to include aspects of merit review of administrative action. Section 7(2)(f) of the Act identifies one of the grounds for review to be a determination if relevant considerations were not taken into account in making the administrative decision; Section 7(2)(j) identifies abuse of discretion as a ground for review while Section 7(2)(k) stipulates that an administrative action can be reviewed if the impugned decision is unreasonable. Section 7(2) (k) subsumes the dicta and principles in the case of Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 on reasonableness as a ground for judicial review. Section 7(2)(i) and (iv) deals with rationality of the decision as a ground for review. In our view, whether relevant considerations were taken into account in making the impugned decision invites aspects of merit review. The grounds for review in Section 7(2)(i) that require consideration if the administrative action was authorized by the empowering provision or not connected with the purpose for which it was take and the evaluation of the reasons given for the decision implicitly require assessment of facts and to that extent merits of the decision. It must be noted that the even if the merits of the decision is undertaken pursuant to the grounds in Section 7(2) of the Act, the reviewing court has no mandate to substitute its own decision for that of the administrator. The court can only remit the matter to the administrator and or make orders stipulated in Section 11 of the Act. On a case by case basis, future judicial decisions shall delineate the extent of merit review under the provisions of the Fair Administrative Action Act.** 1. The Petitioner asserts that he was only requested to explain the documentary support relating to payments amounting to Kshs. 609,252,760.60, but was never asked to address allegations that the relevant supplies branch contract was forged yet the Committee made a finding that he had approved a fraudulent procurement. Similarly, he maintains that findings concerning the alleged fraudulent double payment to the Consulting House and the purported fraudulent procurement of goods and services amounting to Kshs. 695,400,000 were made without those issues ever being put to him for an explanation. He therefore contends that the Committee violated the rules of natural justice by condemning him on matters in respect of which he was never heard. 2. The Petitioner also asserts that several of the Committee's conclusions were legally and factually erroneous because they demonstrated a misunderstanding of his statutory mandate and the procurement process under the IFMIS system. He contends that the Committee wrongly concluded that procurements exceeding Kshs. 2 million required ratification by the Ministerial Tender Committee under Regulation 10(2)(h) of the Public Procurement Regulations, whereas supplies branch transactions were governed by different legal provisions and did not require such ratification. 3. He further stresses that acquisitions from the supplies branch were not public procurements within the meaning of the procurement law and that the Committee ignored evidence relating to other forged contracts originating from the supplies branch. He consequently contends that the impugned findings were irrational, procedurally unfair, unsupported by the evidence and reached in disregard of the applicable law, thereby violating his constitutional rights. Additionally, he asserts that as a result of the 1st and 2nd Respondents’ action, he lost his employment due to the false accusations which tarnished his name and reputation, making it extremely difficult for him to secure employment thereafter. 4. The Petitioner is challenging the adverse findings on account the specific ones he identifies were reached based facts he was not accorded an opportunity to actually rebut or respond to. 1. The 1st and 2nd Respondents maintained that the Petitioner was invited to the Committee twice and was given adequate opportunity to respond to all the issues he was facing before the Committee. 2. In my considered view, where a person is condemned on the basis of undisclosed or unrebutted evidential material, the issue engages the right to fair administrative action under Article 47 as given effect by Administrative Action Act and to the extent applicable, fair hearing under Article 50 of the Constitution. 3. While the High court will not allow itself to be invited to sit as an appellate forum to review or re-evaluate the merits of the Parliamentary Accounts Committee decision or substitute its own view of the evidence, it has jurisdiction under Article 165 (3)(b) and (d) to determine whether a right or fundamental freedom has been denied, violated or infringed or threatened, and whether anything said to be done under the authority of the Constitution or the law is inconsistent with the Constitution. 4. The doctrine of separation of powers requires respect of Parliamentary oversight mandate under Article 95 (5) (b) and 95 (4) (c ) as read together with Article 125 of the Constitution but it does shield Parliamentary oversight for compliance with constitutional dictates when the process adopted is shown to have violated the Bill of Rights. The Court must proceed and examine the fundamental fairness of the process without assuming itself as an appellate forum or substitute the findings of the Public Accounts Committee for its own. 5. Having made these observations, It is this Court’s finding that the issues raised by the Petitioner have been comprehensively and effectively rebutted. The record establishes that the Petitioner was accorded two separate opportunities to appear by the Public Accounts Committee, during which he was extensively engaged on the full range of issues that were under consideration before the Committee. The Petitioner contends that the specific issues he now seeks to isolate were not covered but this was refuted by the respondents. In any event, I find it highly improbable that that a committee that had sanctioned a Special Audit which unearthed many procurement related irregularities would summon the Head of Procurement on two distinct occasions to discuss only one issue as the petitioner would want this Court to believe. 6. This Court finds that the Petitioner was given meaningful opportunity to respond to the issues before the Public Accounts Committee. The Petition lacks merit and must inevitably fail. 7. The Petition has been in Court since 2017 and this certainly strained all the parties in terms of time spent and resources. I shall not make any orders as to costs. ***DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 10TH DAY OF SEPTEMBER, 2026.*** \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ **L.N MUGAMBI** **JUDGE**