Mulaa v Kenya Airport Authority & 4 others (Anti-Corruption and Economic Crime Petition E005 of 2025) [2026] KEHC 10236 (KLR) (Anti-Corruption and Economic Crimes) (9 July 2026) (Ruling)

Mulaa v Kenya Airport Authority & 4 others (Anti-Corruption and Economic Crime Petition E005 of 2025) [2026] KEHC 10236 (KLR) (Anti-Corruption and Economic Crimes) (9 July 2026) (Ruling) Neutral citation: [2026] KEHC 10236 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Anti-Corruption and Economic Crimes Anti-Corruption and Economic Crime Petition E005 of 2025 REA Ougo, J July 9, 2026 Between Fredrick Mulaa Petitioner and Kenya Airport Authority 1st Respondent Dr Mahmud Gedi, Ag Managing Director/CEO, Kenya Airports Authority 2nd Respondent Tradewinds Aviation Services Ltd 3rd Respondent Umbato Safaris Limited 4th Respondent and Ethics And Anti-Corruption Commission Interested Party Ruling The Application 1.The Petitioner herein filed the Petition dated 27th October, 2025, in the public interest regarding the Meet and Assist Service at Jomo Kenyatta International Airport. In the Petition, the Petitioner seeks the following orders:a.A declaration that the 1st and 2nd Respondents have violated Articles 10 and 73 of the Constitution by the 1st Respondent entering into the Meet and Assist contract knowing that tender KAA/OT/JKIA/MBD/004/2020-2021 had been nullified by the High Court and that the 3rd Respondent was unsuccessful in its bid for tender KAA/RT/MBD/0207/2023-2024;b.An order of certiorari to quash the Meet and Assist contract between the 1st Respondent and the 3rd and 4th Respondents arising from tender KAA/OT/JKIA/MBD/004/2020-2021 and tender KAA/RT/MBD/0207/2023-2024;c.Being a public interest Petition, each party to bear its own costs; andd.Any other relief that this Honourable Court may deem fit to grant. 2.The 4th Respondent, Umbato Safaris Limited, has filed a Notice of Preliminary Objection dated 17th November, 2025, challenging this Court's jurisdiction to entertain the Petition and the Notice of Motion of the same date. The objection is founded principally on the doctrine of exhaustion, on account of a complaint said to have been lodged with the Ethics and Anti-Corruption Commission, and on the doctrine of sub judice. 3.The Preliminary Objection was canvassed by way of written submissions. The 4Th Respondent’s Submissions 4.The 4th Respondent filed written submissions dated 22nd May 2026 in support of the Preliminary Objection. The 4th Respondent submitted that this Court lacks jurisdiction, as the Petition raises questions of corruption, abuse of office, irregular procurement and abuse of public power in relation to the provision of Meet and Assist Services at JKIA by the 3rd and 4th Respondents. The 4th Respondent further submitted that the procurement process was lawful, competitive and compliant with the Constitution, the Public Procurement and Asset Disposal Act, 2015, the tender process and the relevant tender documents, and that it culminated in a lawful award to the 4th Respondent. 5.It was further submitted that the pleaded grievances fall within EACC’s mandate under Article 252 of the Constitution, section 11 of the Ethics and Anti-Corruption Commission Act, and sections 23, 25 and 35 of the Anti-Corruption and Economic Crimes Act. The 4th Respondent argued that, having lodged a complaint with EACC, the Petitioner was obliged to await the lawful disposal of that complaint before invoking this Court’s jurisdiction. 6.The 4th Respondent relied on Speaker of the National Assembly v Karume [1992] KECA 42 (KLR), as cited in Republic v Chief Magistrate’s Court at Kisumu ex parte Micah Kisoo, to support the proposition that where the Constitution or a statute prescribes a procedure for redress, that procedure ought to be strictly followed. It also relied on Kibos Distillers Ltd & 4 others v Benson Ambuti Adega & 3 others [2020] KECA 875 (KLR) to support the proposition that jurisdiction cannot be conferred by the art and craft of pleadings. 7.The 4th Respondent contends that the Petitioner drafted the Petition as a constitutional petition to circumvent the exhaustion doctrine. It further submits that, because the Petitioner lodged a complaint with EACC four days before filing the Petition, the Petition constitutes forum shopping and is sub judice. The Notice of Motion is unmerited, as the Petitioner has not demonstrated a prima facie case, any constitutional violation, or any prejudice likely to be suffered in the absence of conservatory orders. Reliance was placed on Anarita Karimi Njeru v Republic [1979] KEHC 30 (KLR), Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] KECA 445 (KLR), and Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR). The Petitioner’s Submissions 8.The Petitioner opposed the Preliminary Objection. It was the Petitioner’s submission that the objection is not a proper preliminary point of law. The Petitioner relied on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 and Independent Electoral and Boundaries Commission v Jane Cheperenger & 2 others [2015] KESC 2 (KLR) to support the proposition that a preliminary objection must raise a pure point of law and must not require the ascertainment of disputed facts. 9.The Petitioner submitted that the Petition does not invite this Court to conduct a criminal investigation. Rather, it seeks a determination on whether public power, public resources and public decision-making in relation to a public airport service have been exercised in accordance with Articles 10 and 73 of the Constitution and with sections 3 and 4 of the Leadership and Integrity Act. 10.The Petitioner further submitted that EACC’s mandate is investigative and recommendatory. It may investigate and make recommendations, including to the Director of Public Prosecutions, but it does not determine constitutional questions, issue declarations, grant conservatory orders, or provide judicial review remedies. The Petitioner therefore argued that a complaint to EACC is not an appellate or adjudicative remedy capable of precluding a constitutional petition. 11.The Petitioner further submitted that the High Court’s jurisdiction is conferred by Articles 22, 23, 165(3)(b), 165(3)(d) and 258 of the Constitution. Reliance was placed on Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (Amicus Curiae) [2021] KESC 34 (KLR) and Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] KEHC 10266 (KLR) to address the scope of the High Court’s constitutional remedial jurisdiction and the exceptions to the exhaustion doctrine. 12.On the precision of pleading, the Petitioner submitted that the Anarita Karimi Njeru and Mumo Matemu principles require reasonable precision, not mathematical exactitude. The Petitioner further stated that the Petition identifies the constitutional provisions alleged to have been breached, the impugned public action, the parties involved, and the reliefs sought. The Interested Party’s 13.The Interested Party, EACC, filed Grounds of Opposition dated 7th November, 2025. It contends that it had not commenced investigations into the subject matter of the Petition, that it was incapable of participating in the proceedings, and that it had no identifiable stake in the matter. EACC therefore sought to be excused from participating in the proceedings. 14.That position is material to the present objection. The body before which the 4th Respondent says the Petitioner ought to await redress states that no investigations had commenced and that it had no identifiable interest in the Petition. Analysis And Determination 15.I have considered the Notice of Preliminary Objection, the rival submissions and the authorities cited. I am of the view that the issues for determination are as follows:a.whether the 4th Respondent’s Notice of Preliminary Objection raises a proper preliminary point of law;b.whether the complaint lodged before EACC ousts or defers this Court’s jurisdiction under the doctrine of exhaustion;c.whether the Petition is sub judice by reason of the complaint lodged before EACC;d.whether the Petition is incurably defective for want of constitutional precision; and Whether the Preliminary Objection raises a proper point of law 16.The law on preliminary objections is settled. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, Law, J.A. stated as follows:“So far as I am aware, a preliminary objection consists of a point of law which has been pleaded or which raises by clear implication out of pleadings, and which if argued as a preliminary point, will dispose of the suit. Examples are an objection to jurisdiction of the court, a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the matter to arbitration...” 17.In Independent Electoral and Boundaries Commission v Jane Cheperenger & 2 others [2015] KESC 2 (KLR), the Supreme Court reiterated that a preliminary objection should not be used as a sword to win a case that ought to be decided on the merits. A preliminary objection should therefore arise from the pleadings and proceed on facts that are not in dispute. 18.In this matter, the 4th Respondent’s objection raises issues of jurisdiction, exhaustion and sub judice. These matters may properly be raised by way of a preliminary objection. However, the Court must still be satisfied that the objection can be determined on admitted facts and pure law. 19.The difficulty is that the objection invites the Court, at the preliminary stage, to determine the nature and effect of the complaint lodged with EACC, whether EACC had commenced investigations, whether that complaint covers the same issues as the Petition, whether EACC can grant the reliefs sought, whether the procurement process was lawful, and whether the Petition satisfies the constitutional pleading threshold. Not all of these matters are admitted. EACC itself states that no investigations had commenced and that it had no identifiable stake in the Petition. To that extent, the objection is not a clean preliminary point of law as contemplated in Mukisa Biscuit. Whether EACC’s mandate ousts or defers this Court’s jurisdiction 20.The 4th Respondent is correct that jurisdiction is everything. In Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR), the Court of Appeal held that where a court lacks jurisdiction, it must down its tools. Similarly, the Supreme Court in Samuel Kamau Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR) held that jurisdiction flows from the Constitution or legislation. 21.The 4th Respondent is also correct that a party should ordinarily follow a dispute resolution mechanism prescribed by the Constitution or statute. In Speaker of the National Assembly v Karume [1992] KECA 42 (KLR), the Court of Appeal held that where the Constitution or an Act of Parliament prescribes a clear procedure for redress of a particular grievance, that procedure should be strictly followed. Sections 9(2) and (3) of the Fair Administrative Action Act also require that internal mechanisms for appeal or review, and other remedies available under any written law, be exhausted before the Court intervenes, subject to the exemption jurisdiction under section 9(4). 22.The question, however, is whether the complaint before EACC constitutes the kind of clear, available, effective and adjudicative remedy that the Petitioner was required to exhaust before filing the Petition. In my view, it does not. 23.Article 252 of the Constitution permits constitutional commissions and independent offices to conduct investigations on their own initiative or upon a complaint from a member of the public, and to perform additional functions prescribed by legislation. Section 11 of the Ethics and Anti-Corruption Commission Act gives EACC power, among other things, to receive complaints of breaches of the code of ethics by public officers, to investigate, to recommend to the Director of Public Prosecutions the prosecution of acts of corruption, bribery or economic crimes, and to recommend appropriate action against State or public officers alleged to have engaged in unethical conduct. Sections 23, 25 and 35 of the Anti-Corruption and Economic Crimes Act address investigations, the discontinuance of investigations, and reports to the Director of Public Prosecutions following investigations. 24.Those provisions confer important investigative and recommendatory powers on EACC. They do not constitute EACC a tribunal or appellate body capable of determining whether Articles 10 and 73 of the Constitution have been violated, issuing declarations, granting conservatory orders, or quashing a public contract by certiorari. 25.The Petition, as pleaded, invokes Articles 10, 22, 23, 73, 165(3)(b), 165(3)(d) and 258 of the Constitution. Article 23(3) empowers the High Court to grant appropriate relief, including declarations, conservatory orders and judicial review orders. The EACC's power to investigate allegations of corruption, abuse of office or breach of integrity does not deprive this Court of jurisdiction to determine a constitutional question properly before it. 26.Kibos Distillers Ltd & 4 others v Benson Ambuti Adega & 3 others [2020] KECA 875 (KLR) is an authority for the proposition that jurisdiction cannot be conferred by the art and craft of pleadings, and that a party cannot avoid a specialised statutory forum merely by framing a dispute as a constitutional petition. The decision is relevant, but it does not assist the 4th Respondent with the objection as framed. This is because the 4th Respondent identifies EACC as the forum to be exhausted. EACC is not an adjudicative forum for the reliefs sought in the Petition. 27.Accordingly, the complaint lodged with EACC does not oust or defer this Court’s jurisdiction. It may proceed as an investigation if EACC considers it appropriate. That does not bar this Court from determining whether a constitutional issue properly arises from the exercise of public power. Whether the Petition is sub judice 28.The 4th Respondent also contends that the Petition is sub judice. Section 6 of the Civil Procedure Act provides that no court shall proceed with the trial of any suit or proceeding in which the matter in issue is directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or parties under whom they claim, litigating under the same title, where such suit or proceeding is pending before a court of competent jurisdiction. 29.The doctrine is intended to prevent multiplicity of proceedings and the risk of conflicting decisions. However, for the doctrine to apply, there must be a previously instituted suit or proceeding before a competent court or forum with jurisdiction to grant the relief sought. 30.No such suit or adjudicative proceeding has been identified. The earlier matter relied upon is a complaint lodged with EACC. A complaint to an investigative commission is not a suit or proceeding before a court of competent jurisdiction for the purposes of section 6 of the Civil Procedure Act. Even if an investigation had commenced, it would not, without more, constitute a previously instituted suit between the parties. In this case, EACC states that no investigations had commenced. Accordingly, the sub judice objection fails. Whether the Petition is incurably defective for want of precision 31.The 4th Respondent also relies on Anarita Karimi Njeru v Republic [1979] KEHC 30 (KLR) and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] KECA 445 (KLR) to argue that the Petition is defective for lack of constitutional precision. 32.The principle in Anarita Karimi Njeru is that a person seeking constitutional redress should set out, with reasonable precision, the complaint, the constitutional provisions alleged to have been infringed, and the manner of infringement. The purpose of the rule is to enable the opposing party to know the case it has to meet and the Court to understand the controversy before it. 33.In Mumo Matemu, the Court of Appeal reaffirmed the need for reasonable precision but clarified that precision is not the same as exactitude. The Court should not insist on a formalistic recitation of constitutional provisions when the substance of the complaint is sufficiently clear. 34.On the material before me, the Petition identifies the impugned public action as the entry into or maintenance of the Meet and Assist contract at JKIA. It also identifies the public body, the public officer, the concessionaires, the tenders said to be relevant, the constitutional provisions relied upon, and the reliefs sought. The 4th Respondent has also answered the Petition, contending that the procurement process was lawful, competitive, and compliant with the law. That response demonstrates that the nature of the complaint is comprehensible. 35.I am therefore not persuaded that the Petition is so incurably defective as to warrant striking it out at the preliminary stage. Whether the Petitioner will prove the alleged nullification, illegality, abuse of public power, or breach of Articles 10 and 73 is a matter for the hearing of the Notice of Motion or the Petition. It is not a proper basis for allowing a preliminary objection whose principal ground is exhaustion before EACC. 36.Consequently, I find that the 4th Respondent’s Notice of Preliminary Objection, dated 17th November, 2025, lacks merit and is dismissed with costs. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 9TH DAY OF JULY 2026.R.E.OUGOJUDGEIn the presence of:Miss Magogo -For the PetitionerMr. Mulili -For the 1st & 2nd RespondentsMr. Mwanza -For the 3rd RespondentMs Wetunga -For the 4th RespondentMiss Wambugu -For the Interested PartyAdan/ Minah - C/A