https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5001

**** **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT ITEN** **ELC EP PET NO. E003 OF 2025** **AMOS KIPSAT………………………..…… 1ST PETITIONER/APPLICANT** **JOHN KUTTO ……………….…..……….. 2ND PETITIONER/APPLICANT** **JOHN KOMEN ………………………..….. 3RD PETITIONER/APPLICANT** **THOMAS CHEROTICH …………..…….. 4TH PETITIONER/APPLICANT** **PATRICK KOSGEI ……..……………….. 5TH PETITIONER/APPLICANT** **GIDION KIPCHUMBA ………….……….. 6TH PETITIONER/APPLICANT** **RODAH KOECH ………………………….. 7TH PETITIONER/APPLICANT** **VERSUS** **KENYA FOREST SERVICE ……...........................…… RESPONDENT** **AND** **NATIONAL ENVIRONMENTAL MANAGEMENT** **AUTHORITY ………………………………………….. INTERESTED PARTY** **RULING** 1. The Petitioners herein have approached this court vide their Petition dated 19th November 2025. They do so on their own behalf and in the interest of members of the **ELMARA FOREST INVESTORS & TIMBER MILLERS** and as persons with an obligation to respect and uphold the Constitution and also in the public interest of the youth, women and persons living with disabilities. 2. They have impleaded the **KENYA FOREST SERVICE (KFS)** the Respondent and the **NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY (NEMA**) as the Interested Party. 3. The brief facts upon which the Petition is premised is that on 22nd October 2025, the Respondent issued a tender **NO. KFS/DISP/18/2025-2026** inviting bids for the following; 4. **KFS Investors registered under timber in 2024 but limited to materials reserved for respective categories in the said bid.** 5. **Bidders located in the county.** 6. **Registered Forest Investors located outside the County as per their category of registration.** 7. **Bidders registered under category of “large”** 8. That most of the Petitioners are registered under the category of “**small scale Forest Industry Investors**” for purpose of timber harvest and they have annexed to their Petition copies of their prequalified licenses marked AK 5(a) to (g). 9. It is their case that the Respondent has violated their rights by not providing a forum of public participation and/or involvement when it unilaterally decided to invite tenderers to bid for forest plantation materials which are part of the natural resources. That the tendering process in respect of the bid **NO. KFS/DISP/18/2025 – 2026** is marked with irregularities, flawed for failure of disclosure of material facts and/or crucial information of the tender. 10. Particulars of irregularities, flawedness, discrimination and favouritism on the part of the Respondent with regard to the Tender Bid **NO. KFS/DISP/18/2025-2026** are set out in paragraph 24 of the Petition. The constitutional provisions violated by the Respondent are set out in paragraphs 25 to 40 of the Petition. 11. The Petitioners therefore seek the following reliefs: 12. A declaration that the actions and/or inactions of the Respondent of not allowing public participation in the management of natural resources by way of disposing natural resources is in contravention with national values under **Article 10**, Principles of Public Procurement under **Article 227** and Sustainable Management of natural resources under **Articles 42** and **69** of the Constitution of Kenya **2010**. 13. A declaration that the tender process for tender bid **NO. KFS/DISP/18/2025-2026** initiated by the Respondent is unconstitutional to the extent that it contravenes Constitutional Principles of good governance, transparency, accountability and public participation. 14. A declaration that the tender process for tender bid **NO**. **KFS/DISP/18/2025-2026** initiated by the Respondent is discriminatory against members of **ELMARA FOREST INVESTROS & TIMBER MILLERS** who are bidders registered under the category of “**small scale**” and the people living with disability, youth and women in favour of bidders registered under the categories of “**medium scale**” and “**large scale**” in total violation of Article 27 of the Constitution. 15. A declaration that the tender process bid **NO. KFS/DISP/18/2025-2026** initiated by the Respondent violates the Petitioners’ legitimate expectation of fair administrative action guaranteed and protected under Article 47 of the Constitution. 16. A declaration that the tender process for tender bid **NO. KFS/DISP/18/2025-2026** violates the Constitutional dictates on equitable and fair access to exploitation of natural resources. 17. A declaration that the Petitioners members’ fundamental rights and freedoms as enshrined under Articles 27 and 47 of the Constitution of Kenya **2010** have been contravened and infringed upon by the Respondent. 18. A declaration that the tendering process in respect of tender bid **NO. KFS/DISP/18/2025-2026** is flawed irregular and as such null and void as initio. 19. An order awarding costs of the Petition to the Petitioners. 20. Any other or further orders, writs and directions this court considers appropriate and just to grant for the purpose of the enforcement of the Petitioner Members’ fundamental rights and freedoms; the enforcement and defence of the Constitution pursuant to Article 23(3) of the Constitution. 21. Costs of and incidental to this Petition. 22. I shall not delve into the grounds of the Petition for purposes of this ruling. 23. The Respondent filed a Notice of Preliminary Objection dated 8th December 2025 in which it sought the striking out of the Petition and raised the following grounds. 24. **The Petition and the Notice of Motion seeking conservatory orders is incurably, fatally defective, bad in law and an abuse of the court process.** 25. **The grievance complained of revolves around public tenders and asset disposal and any dispute or grievance ought to be resolved by the Public Procurement Appeals Authority as such the Petition and the application offends the doctrine of ripeness and Constitutional avoidance.** 26. **That the Court therefore lacks the jurisdiction to entertain, hear and determine the Petition.** 27. **Costs be awarded.** 28. This court directed that the Preliminary Objection be canvassed by way of written submissions. 29. The submissions have been filed by **MR. NABASENGE** instructed by the firm of **KUTTO & KAIRA NABASENGE ADVOCATES** for the Petitioners and by **MS. ODEYO SENIOR LITIGATION COUNSEL** instructed by the **ATTORNEY GENERAL** for the Respondent. 30. The Respondent’s Motion dated 8th December 2025 seeking to enjoin some four (4) Interested Parties herein was never prosecuted although **WAITHAKA J.** had issued directions as to its disposal. 31. What calls for my determination is whether this court has the jurisdiction to hear and determine this Petition. 32. I have considered the Respondent’s Preliminary Objection which raises the issue that this court has no jurisdiction to hear and determine this Petition. I have also considered the submissions by Counsel. 33. It is now well settled that an issue of jurisdiction must be determined at the earlier opportunity and a court without jurisdiction must down it’s tools – **OWNERS OF THE MOTOR VESSEL “LILLIAN S” V. CALTEX OIL (KENYA) LTD C.A CIVIL APPEAL NO. 50 OF 1989 [1989 KECA 48 KLR].** 34. The jurisdiction of this court is set in **Section 13 (2)** of the Environment and Land Court Act. It reads: **(2) “In exercise of its jurisdiction under Article 162 (2) of the Constitution, the court shall have power to hear and determine disputes:** 1. **relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;** 2. **relating to compulsory acquisition of land’** 3. **relating to land administration and management;** 4. **relating to public, private and community land and contracts, choses in action or other instruments granting an enforceable interest in land; and** 5. **any other dispute relating to environment and land”** 6. **Article 162 (2) (b)** of the Constitution provides that this court has the power to hear and determine disputes relating to: **(b) “the environment and the use and occupation of land, and title to land”.** 1. **Section 150** of the **Land Act** provides that: **150: “The Environment and Land Court established in the Environment and Land Court Act and Subordinate Courts as empowered by any written law shall have jurisdiction to hear and determine disputes, actions and proceedings concerning land under this Act”.** 1. Further, the **Land Registration Act** provides under **Sections 101** that. **“The Environment and Land Court established by the Environment and Land Court Act, 2011 No. 19 of 2011 has jurisdiction to hear and determine disputes, actions and proceedings concerning land under this Action.”** 1. The jurisdiction of this court is therefore clearly circumscribed both by the Constitution and the relevant land laws. 2. There is, however, no doubt that this court has the jurisdiction to determine disputes relating to violations of Constitutional rights. **Section 13(3)** of the **Environment and Land Court Act** reads; (**3) “Nothing in this Act shall preclude the court from hearing and determining applications for redress of a denial, violation or infringement of, or threat to, rights or fundamental freedom relating to a clean and healthy environment under Article 42, 69 and 70 of the Constitution”.** 1. The Petitioners have cited **Articles 2(1) and (2), 3(2), 10 (1) 42, 69, 227, 35(1), 27(1), 47(1)** and **227** of the Constitution among others as having been violated in respect to the process of tender bid **NO. KFS/DISP/18/2025-2026**. The interest of the Petition is that the Petitioners are also members of the **ELMARA FOREST INVESTORS AND TIMBER MILLERS** most of whom are registered under the category of “**small scale forest industry investors**” for purposes of timber harvest. The Respondent issued a tender bid by the name of Sale of Forest Plantation Materials in Elgeyo Marakwet having bid **NO. KFS/DISP/18/2025-2026** dated 22nd October 2026. The bid however targets bidders registered under the category of “**large**”. They have therefore been discriminated upon in violation of the Constitution. 2. In his submissions, counsel for the Petitioners states as follows at page 5 in trying to support the view that this court has the requisite jurisdiction to determine this dispute; “ **The disposal of forest plantation materials is inherently an environmental matter under Article 69 of the Constitution, which obligates the state to ensure sustainable exploitation, utilization, management and conservation of the environment and natural resources. Forest are natural resources per Article 42 providing for the right to a clean and healthy environment. This Petition alleges violations of these provisions including right to a clean and healthy environment under Article 42, lack of Public Participation Article 69(1)(a), fair administrative action Article 47 and equitable access to resources Article 69 91) (b). such claims fell exclusively within this court’s jurisdiction, not the Public Procurement Review Board (PPARB)”** 1. Counsel then goes on to add that: “ **Your Lordship, this issue raised herein by the Petitioners is that the area intended for tree harvesting in Elgeyo Marakwet County by the respondent in the impugned tender NO. KFS/DISP/18/2025-2026 is a water catchment area. If and when the impugned tender is finalized, the Petitioners’ right under Articles 42, 69 and 70 will be violated. The respondent failed to conduct any form of Public Participation contrary to the Provisions of Article 10(2) (a) and Article 69(1) (d). The Petitioners herein being small scale harvesters, were also discriminated against in the tendering process contrary to the provisions of Article 27 of the Constitution.** 1. On his part, counsel for the Respondent has submitted as follows in **paragraphs 17, 24** and **29** of her submissions: **17: “The Petitioners have framed their grievance as one involving discrimination and lack of public participation. However, the substance of their complaint remains a challenge to procurement criteria and tender categorization. The Review Board is fully empowered to interrogate whether a procuring entity complied with the Constitution, the Act and principles of fairness, transparency, non discrimination and equality. The mere invocation of Articles 27 or 47 of the Constitution does not automatically confer jurisdiction upon this court where parliament has created a specific forum for redress.”** **24: “The respondent is a procuring entity within the meaning of the Public Procurement and Asset Disposal Act and duly advertised for the disposal of trees through a procurement process. The Petitioners grievance, as discernible from this pleadings, relates to the manner in which the tender was advertised and the category of persons allegedly targeted or excluded therefrom. Such complaints squarely challenge the procurement process, including the terms of the tender and the manner of its publication. These are matters that fall within the exclusive statutory mandate of the Public Procurement Administrative Review Board pursuant to Section 27 and 167 of the Act. In accordance with the doctrine of exhaustion and the settled principle that jurisdiction flows from statute, the Petitioners ought to have invoked the specialized dispute resolution mechanism before the Review Board in the first instance.”** 1. At the commencement of this ruling, I set out in detail, the reliefs which the Petitioners seek. I must also at this stage state that although the Interested Parties also filed a Preliminary Objection dated 8th December 2025 seeking enjoinment in these proceedings and also questioning this court’s jurisdiction, they did not prosecute it. And when the parties appeared before **WAITHAKA J** on 10th December 2025, the directions issued were that the issue of Jurisdiction be canvassed first. The Interested Party did not therefore take part in the application questioning jurisdiction as they are yet to be joined. 2. Although the Petitioners have invoked several Constitutional Provisions in support of their petition, it is well settled that courts will not normally consider a Constitutional question unless the existence of a remedy depends on it. The practise is that where a matter can be disposed off without recourse to the Constitution, the Constitution shall not be invoked – **JOHN HARUN MWAU V. PETER GASTROW & 3 OTHERS 2014 eKLR.** 3. Further afield, in the case of **MINISTER OF HOME AFFAIRS V. BICKLE & OTHERS 1985 L. R. C CONST, GEORGES CJ** held that: “**Courts will not normally consider a Constitutional question unless the existence of a remedy depends on it; if a remedy is available to an applicant under some other legislative provision or on some other basis, whether legal or factual, a court will usually decline to determine whether there has been in addition a breach of the Declaration of Rights”.** 1. I must therefore be cautious and ensure that my mandate, sitting as a Constitutional court, is not trivialized by the mere mention of allegations of contravention of fundamental Constitutional rights. Other than the fact that this court has the jurisdiction to invoke its powers and grant remedies touching on such violations, where the same can be properly resolved by other courts or Administrative agencies, this court must give way because that is why such bodies or agencies were set up in the first place. I am also guided by the decision in **SPEAKER OF NATIONAL ASSEMBLY V. NJENGA KARUME 1990 – 194 E.A 546** where the Court of Appeal reiterated that the Principle that where the Constitution or another statute provides for a certain procedure to be followed in the determination of a dispute, that procedure must be followed. The Constitution is of course supreme. However, the purpose of other Acts of Parliament and the Institutions set out therein are meant to filter out disputes which ought not to end up in a Constitutional Court, when there are other fora where they can properly be determined. It would not be proper for litigants to ignore such mechanisms provided for in the relevant laws and leep frog to this court, in the guise of seeking Constitutional redress. Otherwise, a court exercising powers to determine Constitutional Petition will be in inundated with all manner of disputes. 2. In the case of **HARRIKSON V. ATTORNEY GENERAL 1979 WLR 62**, the privy council held that: **“ The notion that whenever there is a failure by an organ of the Government or a public authority or public officers to comply with the law necessarily entails the contravention of some human right or fundamental freedom guaranteed to individuals by chapter 1 of the Constitution is fallacious …….. It’s value will be diminished if it is allowed to be misused as a general substitute for normal proceedings for invoking Judicial control of administrative action.”** 1. That decision has been adopted by superior courts in this county. I am persuaded by it. 2. And in **BAHADUR 1986 LRC CONST 297**, a case from **TRINIDAD & TOBAGO**, it was stated thus: **“That Constitution is not a general substitute for the normal procedure for invoking judicial control of administrative action. Where infringement of rights can found a claim under substantive law, the proper cause is to bring the claim under the law and not under the Constitution”.** 1. In support of this Petitioner’s case that this court has jurisdiction to determine this dispute, counsel has cited the case of **TIMBER MANUFACTURERS ASSOCIATION V. KENYA FOREST SERVICE & 2 OTHERS 2022 KEELC 13820 KLR.** In that case, **WABWOTO J**. held at paragraph 51 that: **“upon careful consideration of the Petition before this court and the parties submissions, it is my view the Board has no jurisdiction to enforce those provisions. In my considered opinion, the Board is not a suitable forum for the purpose of settling environmental disputes as described in this Petition. The Environment and Land Court has powers to hear and determine applications for redress of a denial, violation or infringement under Articles 42, 69 and 70 of the Constitution. It is therefore clear that only the Environment and Land Court is clothed with the jurisdiction to hear and determine the issues raised in the Petition. To hold otherwise will not only be watering down the Constitutional rights of parties but acting contrary to the Constitution”** Emphasis mine. 1. It must be clear from the above that **WABWOTO J.** was dealing with a Petition raising “**environmental disputes**”. Earlier in this ruling, I have set out the remedies which the Petitioners seek from this court. And although they have cited various Articles of the Constitution, a perusal of the remedies sought by way of declarations show that the focus is on the tender bid **NO. KFS/DISP/18/2025-2026.** These are declarations **(b), (c), (d), (e) and (g)**. Declaration **(a)** refers to Public Participation in the Procurement Process. Declarations **(h) (I) and (J)** deal with issue of costs and any other orders and writs. Therefore, the core of the Petition raises the Petitioners dissatisfaction with the manner in which the bid **NO. KFS/DISP/18/2025-2026** was targeted towards the category of “**large**” bidders rather than the “**small scale**” bidders to which they belong. 2. The preamble to the Public Procurement and Asset Disposal Act (PPADA) provides that it is an Act of Parliament; “ **to give effect to Article 227 of the Constitution; to provide procedures for efficient public procurement and for assets disposal entities; and for connected purposes”.** 1. **Section 27** provides for the establishment of the Public Procurement Administrative Review Board (the Board) whose functions are set out in **Section 28 (I) (a) (b)** as follows: 2. “**reviewing, hearing and determining tendering and asset disposal disputes; and** 3. **to perform any other function conferred to the Review Board by this Act, Regulations or any other written law”** 4. Part XV of the Act provides for the Administrative Review of Procurement and Disposal Proceedings. **Section 167(I)** of the Act provides that: **“Subject to the provisions of this Part, a candidate or a tenderer, who claims to have suffered or to risk suffering, loss or damage due to the breach of a duty imposed on a procuring entity by this Act or the Regulations, may seek administrative review within fourteen days of notification of award or date of occurrence of the alleged breach at any stage of the procurement process, or disposal process as in such manner as may be prescribed.”** 1. Section 173 of the Act provides for the Powers of the Board. It reads; **“Upon completing a review, the Review Board may do any one or more of the following:** **(a)annul anything the accounting officer of a procuring entity has done in the procurement proceedings, including annulling the procurement or disposal proceedings in their entirety;** **(b)give directions to the accounting officer of a procuring entity with respect to anything to be done or redone in the procurement or disposal proceedings;** **(c)substitute the decision of the Review Board for any decision of the accounting officer of a procuring entity in the procurement or disposal proceedings;** **(d)order the payment of costs as between parties to the review in accordance with the scale as prescribed; and** **(e)order termination of the procurement process and commencement of a new procurement process.”** 1. Sections 174 and 175 of the Act provide for the right of a review of the Board’s decisions and a right to approach the High Court by way of Judicial Review within 14 days failure to which the decisions shall be final and binding to both parties. 2. Among the provisions which the Petitioners allege to have been violated include Article 227 (1) of the Constitution. It provides that: “**When a state organ or any other Public entity contracts for goods or services, it shall do so in accordance with a system that is fair, equitable, transparent, competitive and cost effective”** Emphasis mine. 1. It is clear from the preamble to the Act that it is required to give effect to **Article 227** of the Constitution. Therefore, the requirement to embrace fairness and equity are not the preserve of this court or any other court for that matter. The Petitioners must therefore be assured that the Board is also under an obligation to apply the principles of fairness and equity as it determines the disputes regarding tenders before it. 2. Then there is the **Forest Conservation and Management Act Cap 285** Laws of Kenya. It provides in **Section 70(1) and (2)** under Disputes that: **“(1) Any dispute that may arise in respect of forest conservation, management, utilization or conservation shall in the first instance be referred to the lowest possible structure under the devolved system of government as set out in the County Governments Act (Cap. 265).** **(2) any matter that may remain un-resolved in the manner prescribed above, shall be referred to the National Environment Tribunal for determination, pursuant to which an appeal subsequent thereto shall, where applicable, lie in the Environment and Land Court as established under the Environment and Land Court Act (Cap. 8D).”** 1. Therefore, other than the Public Procurement and Asset Disposal Act, there is the Forest Conservation and Management Act to which the Petitioners could seek refuge before approaching this court. 2. Finally, there is the doctrine of exhaustion of remedies which is part of our jurisprudence. It is defined in **BLACK’S LAW DICTIONARY 10TH EDITION** at page 694 thus; “**The doctrine that if an administrative remedy is provided by statute, a claimant must seek relief first from the administrative body before judicial relief is available. The doctrine’s purpose is to maintain comity between the courts and administrative agencies and to ensure that courts will not be burdened by cases in which judicial relief is unnecessary – Also termed exhaustion of remedies doctrine, exhaustion of administrative remedies; exhaustion doctrine”.** 1. Section 9 (2) of the Fair Administrative Action Act codifies the doctrine of exhaustion as follows: **“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.”.** 1. The doctrine is not absolute and Section 9(4) of the Fair Administrative Action Act provides that the court may, in “**exceptional circumstances**”, exempt a party from the obligations to exhaust any remedy if the court considers such exemption to be in the interest of justice. In the circumstances of this case, I do not see any “**exceptional circumstances**” to exempt the Petitioners from approaching the fora set out above. 2. The court of Appeal in a recent Judgment delivered on 13th March 2026 had the following to say on Public Procurement Processes in the case of **JAMARI ENTERPRISES LTD V. PUBLIC PROCUREMENT ADMINISTRATIVE REVIEW BOARD & OTHERS C. A CIVIL APPEAL NO. E076 OF 2026 [2026 KECA 554 KLR]** at paragraph 90. **90:** “**It is also important to bear in mind that public procurement processes are undertaken in the broader public interest and are often linked to the timely delivery of essential public services. Courts must therefore exercise caution before intervening in such processes, particularly where no demonstrable illegality has been established and where the statutory dispute resolution mechanisms have not already been invoked and exhausted”.** Emphasis mine. 1. Ultimately therefore, and guided by all the above, I am satisfied that the Preliminary Objection raised by the Respondents on the want of Jurisdiction by this court to determine this Petition is well taken. I allow it and issue the following dispositive orders: 2. This court lacks the jurisdiction to determine this petition. 3. The Petition is accordingly struck out. 4. Costs to the Respondent. **BOAZ N. OLAO** **JUDGE** **28TH JULY 2026** **Ruling dated, signed and delivered on this 28th day of July, 2026 by way of electronic mail with Notice to the parties.** **BOAZ N. OLAO** **JUDGE** **28TH JULY 2026**