https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8350

Okoiti & 2 others v Kenya Ports Authority & 5 others (Petition E009 of 2026) [2026] KEHC 8350 (KLR) (15 June 2026) (Ruling) Neutral citation: [2026] KEHC 8350 (KLR) Republic of Kenya In the High Court at Mombasa Petition E009 of 2026 J Ngaah, J June 15, 2026 Between Okiya Omtatah Okoiti 1st Petitioner Bernard Muchiri Muchere 2nd Petitioner Naomi Nyakerario Misati 3rd Petitioner and Kenya Ports Authority 1st Respondent Managing Director, Kenya Ports Authority 2nd Respondent Public Procurement Regulatory Authority 3rd Respondent The National Treasury 4th Respondent Hon Attorney General 5th Respondent and Katiba Institute Interested Party Ruling 1.The Petitioners in this petition describe themselves as “law-abiding citizens of Kenya, public-spirited individuals, and human rights defenders and that “they bring this Petition in the public interest under the Constitution of Kenya, 2010, seeking to uphold the rule of law, protect public resources, and enforce constitutional values and principles in public procurement and public finance management.” 2.They have mainly sought orders of certiorari, prohibition and mandamus. They have also sought several Declarations. In particular, the prayers for these orders have been framed as follows:“(a)A Declaration that the 1st and 2nd Respondents’ decision and action to initiate and conduct Tender No. KPA/039/2025-26/ES: Supply, Testing, and Commissioning of Fourteen (14) New Reachstackers through restricted tendering, when the approved procurement plan designates open tendering, is unconstitutional, unlawful, null and void for violating Articles 10(2), 47, 201, and 227(1) of the Constitution and Sections 53, 68, and 91 of the Public Procurement and Asset Disposal Act, 2015.(b)A Declaration that the 1st and 2nd Respondents’ decision and action to initiate and conduct Tender No. KPA/053/2025-26/CCE: Supply, Testing and Commissioning of Fifteen (15) New Forklift Trucks through restricted tendering, with quantities and items that grossly depart from the approved procurement plan, is unconstitutional, unlawful, null and void for violating Articles 10(2), 47, 201, and 227(1) of the Constitution and Sections 45, 53, 68, and 91 of the Public Procurement and Asset Disposal Act, 2015.(c)A Declaration that the 1st and 2nd Respondents’ decision and action to initiate and conduct Tender No. KPA/036/2025-26/ES: Supply, Testing, and Commissioning of Forty-Eight (48) Terminal Tractors through restricted tendering, with quantities and items that grossly depart from the approved procurement plan, is unconstitutional, unlawful, null and void for violating Articles 10(2), 47, 201, and 227(1) of the Constitution and Sections 45, 53, 68, and 91 of the Public Procurement and Asset Disposal Act, 2015.(d)A Declaration that the unilateral alteration of the procurement method from open to restricted tender, in departure from the published plan, violates the doctrine of legitimate expectation and the right to fair administrative action under Article 47 of the Constitution and Sections 4 and 7 of the Fair Administrative Action Act, 2015.(e)A Declaration that the procurement of items and quantities not contained in the approved procurement plan and beyond the approved budget contravenes Section 53 of the PPADA as read with Section 45(3) of the PPADA and Rules 41 and 42 of the Regulations.(f)A Declaration that the 2nd Respondent, as the accounting officer who directed and approved the use of public funds for the impugned tenders contrary to the express instructions in the budget approval letter and the provisions of the Public Procurement and Asset Disposal Act, 2015, is personally liable for any loss arising from such use and shall make good the loss pursuant to Article 226(5) of the Constitution.(g)A Declaration that the 1st and 2nd Respondents have violated Article 232(1)(b) and (e) of the Constitution by failing to account for their administrative acts and by failing to ensure efficient, effective, and economic use of public resources in the impugned tenders.(h)A Declaration that the 1st and 2nd Respondents have violated Article 10(2)(c) of the Constitution by acting contrary to the national values and principles of good governance, integrity, transparency, and accountability.(i)A Declaration that the 1st and 2nd respondents have contravened Section 7(2)(k) of the Fair Administrative Action Act, 2015 by defeating the legitimate expectation of the Petitioners and the public.(j)An Order of Certiorari bringing into this Honourable Court for purposes of being quashed the entire procurement proceedings in Tender No. KPA/039/2025-26/ES; Tender No. KPA/053/2025-26/CCE and Tender No. KPA/036/2025-26/ES.(k)An Order of Prohibition restraining the 1st and 2nd Respondents, their agents, servants, or officers acting under their direction or authority, from proceeding with, concluding, awarding, or entering into any contract arising from the said impugned Tender No. KPA/039/2025-26/ES; Tender No. KPA/053/2025-26/CCE and Tender No. KPA/036/2025-26/ES.(l)An Order of Mandamus compelling the 1st and 2nd Respondents to conduct the procurement of the items subject of the impugned Tender No. KPA/039/2025-26/ES; Tender No. KPA/053/2025-26/CCE and Tender No. KPA/036/2025-26/ES strictly through open tendering in accordance with Section 68 of the PPADA and as designated in the approved procurement plan.(m)An Order of Mandamus compelling the 3rd Respondent (PPRA) to conduct a full investigation into the 1st Respondent’s procurement practices in respect of the impugned Tender No. KPA/039/2025-26/ES; Tender No. KPA/053/2025-26/CCE and Tender No. KPA/036/2025-26/ES and to take appropriate regulatory and enforcement action against the officers responsible for the breaches.(n)An Order of Prohibition restraining the 1st and 2nd Respondents from making any payment in respect of the specific impugned procurements until they demonstrate full compliance with the PPADA and the Constitution.(o)An Order of Prohibition restraining the 4th Respondent (National Treasury) from making any budgetary disbursements to the 1st Respondent in respect of the specific impugned procurements until full compliance with the PPADA and the Constitution is demonstrated.”The petitioners have also sought for the costs of the petition. 3.Alongside the petition, the petitioners filed a motion for conservatory orders suspending the procurement process pending the hearing and determination of the petition; they also sought for a conservatory order restraining the 4th Respondent from making any budgetary disbursements to the 1st Respondent in respect of the specific impugned procurements until the respondents have full complied with the Public Procurement and Asset Disposal Act, 2015 and the Constitution. 4.In an affidavit sworn by the 1st petitioner in support of the motion, they have sworn that the petitioners state that they are aware that the 1st Respondent prepared and published its Annual Procurement Plan (also known as “CAPEX”) for the Financial Year 2025/2026 pursuant to Section 53 of the Public Procurement and Asset Disposal Act, 2015 and Rule 42 of the Public Procurement and Asset Disposal Regulations, 2020. 5.Contrary to the Procurement Plan, the 1st Respondent floated Tender No. KPA/039/2025-26/ES for the Supply, Testing and Commissioning of Fourteen (14) New Reachstackers through restricted tendering, when the approved procurement plan designates open tendering for only 5 reachstackers at an estimated cost of Kshs. 80,000,000. The impugned tender seeks 14 reachstackers – a quantity 180% in excess of the planned quantity and at a cost far exceeding the approved budget. 6.Besides the tender for reachstackers, the 1st Respondent also floated Tender No. KPA/053/2025-26/CCE for the Supply, Testing and Commissioning of Fifteen (15) New Forklift Trucks through restricted tendering, of which only 1 No. 3-Ton Forklift conforms to the approved procurement plan in both description and procurement method. The remaining 14 units constitute items not in the plan or items designated for open tender that have been unlawfully switched to restricted tender. 7.The 1st Respondent further floated Tender No. KPA/036/2025-26/ES for the Supply, Testing, and Commissioning of Forty-Eight (48) Terminal Tractors through restricted tendering, when the approved procurement plan designates open tendering for only 30 terminal tractors at an estimated cost of Kshs. 250,000,000. The impugned tender seeks 48 terminal tractors – a quantity 60% in excess of the planned quantity at a cost that quadruples the approved budget to Kshs. 1,114,358,056. 8.According to the petitioners, the reachstackers, forklift trucks and terminal tractors of all capacities are standard port-handling and industrial equipment manufactured and supplied by multiple global manufacturers including Kalmar, Liebherr, Hyster, Sany, XCMG, Toyota, Mitsubishi, Linde, Caterpillar, Mol CY, Terberg, and Sino Truck, among others, with extensive authorized dealer networks in Kenya and East Africa. It is therefore their case that there is no basis for the 1st Respondent to claim that the statutory preconditions for restricted tendering under Section 102 of the Act are satisfied. 9.The petitioners claim that the 1st and 2nd Respondents’ decision to alter the procurement method from open tender to restricted tender, in departure from the published procurement plan, contravenes Article 227(1) of the Constitution which mandates fair, equitable, transparent, competitive and cost-effective procurement, and defeats the legitimate expectation of the public and potential bidders. 10.At the time they filed the petition, the said restricted tender processes were at an advanced stage and, and therefore, the petitioners were apprehensive that unless this Honourable Court urgently intervened, the 1st and 2nd Respondents were likely to evaluate bids, award contracts and commit public funds amounting to hundreds of millions of Kenya Shillings in an unconstitutional and unlawful manner before the Petition herein can be heard and determined. 11.Thus, the petitioners swear that unless the Honourable Court intervenes, the Petitioners’ right to access justice will be violated as the subject of the Petition before this Court will be defeated, and the public confidence in the rule of law and the Court’s authority will be gravely undermined. 12.Responding to the motion, the respondents filed a preliminary objection in which they have pleaded that the issues raised regarding the violation of the 1st Respondent's Procurement Plan for the Financial Year 2025/26 and the budget as alleged in the Petitioners' Notice of Motion dated 18th March 2026 and the Petition of even date are matters governed under the Public Procurement and Asset Disposal Act 2015, (hereafter also referred to as “the Act”) which matters are required to be addressed and or resolved under dispute resolution mechanisms provided under the Act in particular sections 35, 36, 37 and 38 of the Act and, therefore, this Honourable Court lacks requisite jurisdiction to entertain the petitioners petition. 13.The 1st and 2nd respondents have also pleaded that the issue of discrimination, fairness, competitiveness and cost efficiency are matters provided under the Act which issues can be resolved through statutory interpretation, common law, or other legal avenues as such the Petition herein violates the doctrine of constitutional avoidance as affirmed by the Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others (20141 KESC 53 (KLR). 14.Finally, it is contended on behalf of the respondents that there are other parallel proceedings filed earlier before the Public Procurement Administrative Review Board in Applications No. 32, 42 and 43 of 2026 and, therefore, the petition is sub judice. 15.The 1st and 2nd respondents also filed a replying affidavit to the application. The affidavit has been sworn by Mr. Daniel M. Amuyunzu who has introduced himself as the Principal Supply Chain Officer of the Kenya Ports Authority. 16.Mr Amuyunzu has sworn that the 1st Respondent is a state corporation established under Section 3 of the Kenya Ports Authority Act, Cap. 391, as a body corporate with perpetual succession and a common seal, with powers to sue and be sued in its corporate name. Its mandate is to manage and operate the Port of Mombasa and all scheduled ports along Kenya's coastline and inland waterways, including Lamu Port, Malindi, Kilifi, Kiungu, Shimoni, Vanga, and Kisumu Port. The 2nd respondent, on the other hand, is the Managing Director of the 1st Respondent and is responsible for the overall management and performance of the Authority. For purposes of the Public Procurement and Asset Disposal Act and the Public Finance Management Act, the 2nd respondent is the 1st respondent’s Accounting Officer. 17.It is true, according to Mr Amuyunzu, that the 1st Respondent published Notices of Intention to procure critical port operations equipment through three tenders, namely Tender No. KPA/036/2025-26/ES: Supply, Testing, and Commissioning of Forty-Eight (48) Terminal Tractors, Tender No. KPA/039/2025-26/ES: Supply, Testing and Commissioning of Fourteen (14) New Reachstackers and Tender No. KPA/053/2025-26/CCE: Supply, Testing and Commissioning of Fifteen (15) New Forklift Trucks. The Publications were made on both the 1st Respondent's Website and the Government's Public Procurement Information Portal (PPIP), inviting any interested equipment manufacturer to participate. 18.Mr Amuyunzu has also sworn that as at the time of filing this suit, there were proceedings commenced pursuant to Section 167 of the THE ACT before the Public Procurement Administrative Review Board (PPARB) in Application No. 32 of 2026 in respect of Tender No. KPA/036/2025-26/ES, Application No. 42 of 2026 in respect of Tender No. KPA/039/2025-26/ES and Application No. 43 of 2026 in respect of Tender No. KPA/053/2025-26/CCE was filed earlier in February and March 2026, challenging the outcome of the three tenders that are the subject of these proceedings. In these circumstances, it is sworn that it was undesirable to have this Honourable Court and the Public Procurement Administrative Review Board adjudicating over the same matters simultaneously. 19.It has also been sworn on behalf of the 1st and 2nd respondents that the complaints by the Petitioners are matters governed under the Public Procurement and Asset Disposal Act and the Public Management Finance Act, and thus the petition ought to have been filed as an ordinary suit and not as a constitutional petition. 20.The Kenya Ports Authority is said to be experiencing “unprecedented growth of business” where volumes of cargo shipped via the Ports of Mombasa and Lamu are on track to surpass the projected annual cargo throughput. There is a steady 20% increase across the board, which will see the annual cargo throughput surpass the current average of 2.5 million by a larger margin. It is further sworn that the current growth in business and the unprecedented increase in cargo volumes are attributed to factors such as improved Port operational efficiency, streamlined cargo clearance services, and the expansion of Port facilities in Kenya, among others. 21.Further, Kenyan Ports are also said to be facing intensified competition from other ports along the East African coastline and as such, strategic investment in the Ports and Port facilities aimed at achieving efficiency is necessary in order to secure Kenyan Ports as the primary and most preferred gateway and exit point for cargo belonging to a vast hinterland and transit market that include Uganda, Rwanda, Burundi, Democratic Republic of Congo, Tanzania, South Sudan and Ethiopia. 22.The port equipment subject to the three tenders is integral to the Authority's modernisation programs aimed at enhancing operational efficiency in the Ports and the Inland Container Depots, increasing container throughput and reducing ship turnaround time. 23.The Authority's user department, through an Internal Memo dated 3 December 2025, indicated that the fleet of Reachstakers operating within the Kenyan Ports includes Sany, Hyster, ZPMC and Kalmar, which are from internationally reputable equipment manufacturers with notable presence in several ports and container handling facilities. 24.The performance evaluation of the existing Reachstakers reveals value for money because of superior technical features and reliable local dealer support, and the Authority's technical staff possesses vast experience and skills in functionalities, troubleshooting and maintenance of the said container handling equipment. 25.Against this background, it is sworn that it was recommended that the procurement for the new Reachstakers be restricted to manufacturers whose equipment already operates at the Port of Mombasa and the Wand Container Depots and have strong local dealer support due to the following advantages;(a)Interchangeability of spare parts reduces costs on stockholding, administration, cataloguing and binning.(b)The interchangeability of major parts such as engines, hydraulics, pneumatics and electronics results in standardisation and ultimately reduction of costs, considering that the 1st Respondent has already invested in some parts, and this lowers costs, considering the same parts and tools are used on the new equipment.(c)The 1st Respondent has heavily invested in training engineers on the existing equipment brands, enabling m-house repairs even during the warrant period, thereby minimising downtime, unlike the introduction of new brands, which would require increased costs and longer equipment downtime.(d)The existing Reachstakers brands are tried and tested, and the 1st Respondent's engineers and operators are familiar with the areas where improvements can be made via specifications as opposed to totally new equipment improvement whose operation and performance may not be familiar.(e)A new brand of equipment will force the 1st Respondent to extensively train the operators, unlike the existing brands, where the operators will undergo minimal training, which mostly consists of familiarisation. 26.The General Manager, Supply Chain Management, sought approval to procure through Restricted Tendering from the Managing Director vide a Memo dated 23 December, 2025, which the Managing Director approved. 27.Following the approval by the Managing Director to procure through Restricted Tendering, the 1st Respondent in compliance with the provisions of section 102 (1) (c ) and (d) of the Act and Regulation 89 (8) of the Public Procurement and Asset Disposal Regulations 2020 published openly a notice of Intention to Procure Through Restricted Tender on its website and the Public Procurement Information Portal (PPIP) giving the reasons for the choice of the method and inviting any interested equipment manufacturer to participate in the tender, which advertisement meets the threshold of openness and transparency required by law. 28.Mr. Amuyunzu has sworn that he is aware that Regulation 89(8) of Public Procurement and Asset Disposal Rules that where any bidder outside the known suppliers emerges, the bidder is required to be invited to bid and, as such the allegation of discrimination would have no basis whatsoever. 29.The 1st Respondent invited M/s Sany Marine Heavy Industry Company Limited, M/ s Shanghai Port Machinery Heavy Industries Co. Ltd, M/ s Kalma Global and M/ s Hyster Yale Group (Hyster Europe) for tendering and that the said companies submitted their respective bids. 30.The bids were opened on 11th February, 2026 and upon evaluation of all the bids received, the Evaluation Committee recommended the award of Tender No. KPA/039/2025-26/ES: Supply, Testing and Commissioning of Fourteen (14) New Reachstackers at the evaluated price of USD.7,314,142.00 CIF Mombasa with a total delivery period of 32 weeks from the date of the Local Purchase Order. 31.All the bidders were notified of the outcomes of the tendering process, and as required vide letter dated 3 March, 2026, the successful bidder has since submitted their acceptance letter to the 1st Respondent vide letter dated 6 March, 2026. The award of the tender was, however, challenged by one bidder Kalmar, at the Public Procurement Administrative Review Board in Application No 42 of 2026. 24. 32.As far as Tender No. KPA/036/2025-26/ES: Supply, Testing, and Commissioning of Forty-Eight (48) Terminal Tractors concerns the Authority used a similar approval process and documents as the Reachstakers. With respect to the procurement of the Terminal Tractors under Tender No. KPA/036/2025-26/ES, Mr Amuyunzu has sworn that: -(a)The procurement plan for the year 2022/23 provided for the procurement of five (5) units of Terminal Tractors, which were not procured, and the budgeted amount was rolled over.(b)The procurement plan for 2024/25 provided for the procurement of thirteen (13) units of Terminal Tractors, which were not procured, and the budget was rolled over.(c)The procurement plan for the year 2025/26 provided for the procurement of Thirty {30) units of Terminal Tractors.(d)The total units of Terminal Tractors based on approved procurement plans for the years 2022/23, 2024/25 and 2025/26 are Forty-Eight (48) and therefore the allegations by the Applicants are alleged to be misleading. 33.As a result of the award for this tender, proceedings were commenced before the Public Procurement Administrative Review Board in case No. 32 of 2026. 34.As for Tender No. KPA/053/2025-26/CCE dealing with the Supply, Testing and Commissioning of Fifteen (15) New Forklift Trucks, I wish to state that the decision by the 1st Respondent to adopt Restricted Tendering was guided by the fact that the 1st Respondent currently operates Forklift Trucks of the XGMA, SMV Konecranes, Hyster and Kalmar brands which brands are widely used and well established in ports and container terminals. 35.The said brands have consistently served the 1st Respondent reliably, and their spare parts and maintenance tools are readily available on the market, and the advantages of using these brands are the same as those of using Reachstakers. 36.On the question of reachstackers to be procured, Mr Amuyunzu has sworn that:(a)The procurement plan for the FY 2024/25 provided for the procurement of Eleven (11) Forklifts, which were not procured due to some challenges; however, the budget was rolled over.(b)The procurement plan for the FY 2025/ 26 provided for the procurement of four (4) Forklifts.(c)The cumulative units as per the 2024/25 and 2025/26 procurement plans are fifteen (15) Forklifts. 37.According to the provisions of Section 102 of the Act, the invitation to use Restricted Tender was published openly on the 1st Respondent's website and the Government public procurement information portal. 38.The advertisement drew the interest of one additional equipment manufacturer who expressed interest in being allowed to compete with the manufacturers of the current fleet of Forklifts owned and operated by the1st Respondent. Therefore, the original equipment manufacturers invited to submit tenders include M/S Xiamen XGMA Machinery Co. Ltd, M/S Konecranes Liftrucks AB, M/S Hyster Yale Group (Hyster Europe), M/S Fuji South China Heavy Machinery Manufactures Co. Ltd, and Kalmar Global. 39.Five bidders responded, and the bids were opened on 4th February, 2026, and it was noted that whereas some OEMS submitted bids directly, others participated through their duly appointed and authorised local agents. 40.Upon comprehensive evaluation of the bids received, the Evaluation Committee recommended the award of the tender as follows:-(a)Lot1: Nine (9) New Forklift Trucks to M/ s Brookwood Technical Trading Co. Ltd at a total quoted price of USD.2,801,798.99 OPP with a completion period of six months.(b)Lot Six (6) New Forklifts to M/ s Autobikes Limited at their total quoted price of USD.721,306.52 DPP with a completion period of six (6) months. 41.The bidders were notified of the tendering process as required, and the two successful bidders submitted their acceptance letters to the 1st Respondent dated 8th and 9th March, 2026, respectively. As a result of the award, proceedings have been commenced before the Public Procurement Administrative Review Board in case No. 43 of 2026. 42.Mr Amuyunzu has reiterated that the decision to procure all the units, including those that had previously been pre-planned in the previous procurement plans, is due to the unprecedented increase in vessel traffic for the Lamu Port and the unprecedented increase in cargo volumes at the Mombasa Port. These are business dynamics that require urgent capital investments in equipment to ensure efficient cargo handling and port operations, which not only enhance ship turnaround time to the benefit of maritime traders but also ensure safe cargo handling, thus positioning the Kenyan Ports as world-class ports of choice. 43.By their very nature, public procurement planning and budgeting are dynamic, informed by various factors that determine prioritisation and allocation of funds by the Government. Most of the equipment procurement plans had been included in previously approved procurement plans, for instance, but were rolled over to subsequent years. The failure to procure certain equipment and other planned items in previous financial years under the approved Procurement Plans is often due to Government decisions and priorities. 44.The unprecedented increase in volume at Kenyan ports is information in the public domain. The growth in business calls for the re-evaluation and re-arrangement of resources to ensure a commensurate cargo-handling capacity. In a Port operations setup, these dynamics dictate changes in the prioritisation, necessity, importance, and urgency of procurement, bearing in mind that the procurement of various equipment, like other capital investments, often takes time and ultimately spans multiple financial years. 45.It is as a result of these reasons, among other reasons, that the Government budget system has put in place mechanisms to ensure that funds are not hoarded at any given time, and budgets are also available for roll-over to subsequent financial years depending on the nature of procurement. The 1st Respondent, being a state corporation under the National Government, retains the authority to manage the funds allocated to it by the Government between existing budget line items or accounts within the organisation and, in that regard, to ensure proper financial management to enable budget flexibility within the approvals granted to it by the Government. 46.According to the respondents, considering the lead time in manufacturing processes, payment to contractors is best done only in milestones that, in most cases, cut across more than one or multiple financial years. In any event, it is not open for the 1st Respondent to spend public money outside the approved budget. Thus, the Applicants' allegation of wastage of public resources is totally unfounded. 47.Directions were taken that both the application and the preliminary objection would be disposed of together on the understanding that the court would proceed and consider the petitioners’ application on the merits if the 1st and 2nd respondents are overruled on their preliminary objection. If, on the other hand, the respondents’ position carries the day and their objection is upheld, it would be unnecessary to delve further into the application as well as the petition itself. It is inevitable that the court should consider the preliminary objection first. 48.I gather from the preliminary objection that it is two-pronged; firstly, that the dispute presented as a constitutional petition ought to have been filed as an ordinary suit in accordance with the provisions of the Public Procurement and Asset Disposal Act. Secondly, at the time material to the petition, the suit was sub judice, having been filed after several applications challenging either the award of the tenders or the procurement process leading to the award had been filed before the Public Procurement Administrative Review Board. An affirmative answer to any of these questions would determine the petition in limine. 49.The facts material to the determination of the preliminary objection are not in dispute. It is not in dispute that the 1st respondent floated several tenders for the procurement of certain equipment that, according to the 1st respondent, are necessary for its operations and for delivering on its mandate as a specialised public entity. The tenders have been identified as Tender No. KPA/039/2025-26/ES: Supply, Testing and Commissioning of Fourteen (14) New Reachstackers; Tender No. KPA/036/2025-26/ES: Supply, Testing, and Commissioning of Forty-Eight (48) Terminal Tractors; and Tender No. KPA/053/2025-26/CCE for the Supply, Testing and Commissioning of Fifteen (15) New Forklift Trucks. 50.It is also not in dispute that following the award of the tenders, applications or requests for review were filed before the Public Procurement Administrative Review Board challenging the decision of the 1st respondent. These applications are Application No 42 of 2026 in respect of Tender No. KPA/039/2025-26/ES: Supply, Testing and Commissioning of Fourteen (14) New Reachstackers; application no. No. 32 of 2026 in respect of Tender No. KPA/036/2025-26/ES: Supply, Testing, and Commissioning of Forty-Eight (48) Terminal Tractors; and application no. 43 of 2026 with regard to the award of Tender No. KPA/053/2025-26/CCE for the Supply, Testing and Commissioning of Fifteen (15) New Forklift Trucks. 51.At the hearing of the petitioners’ application, it emerged that the Public Procurement Administrative Review Board had made its determination on all three applications and dissatisfied parties had escalated the disputes to this Honourable Court by way of judicial review applications. 52.The legislature foresaw this sort of dispute arising out of public procurement and disposal of assets by public entities and, therefore, in enacting the Public Procurement and Asset Disposal Act, it made provisions for dispute resolution mechanisms. According to the legislative scheme, a person aggrieved by what he believes is a breach of a statutory duty by a procuring entity in the procurement process is entitled to seek review of the impugned decision before a tribunal created for that purpose. This is catered for in section 167 of the Act, which reads as follows:167.Request for a review(1)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. 53.No doubt, the parties who lodged their applications for review of the 1st respondent’s decision or decisions invoked this particular provision. The answer to the question whether petitioners were eligible to seek review before the Review Board is found in section 167 (1) and also in section 170 of the Act. Section 167(1) is relevant because it is express that it is “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” that may lodge an application for review while section 170 goes further to define parties to an application for review; this latter provision reads as follows:170.Parties to reviewThe parties to a review shall be—(a)the person who requested the review;(b)the accounting officer of a procuring entity;(c)the tenderer notified as successful by the procuring entity; and(d)such other persons as the Review Board may determine. 54.The petitioners have submitted that they could not file a review application mainly for two reasons. The first reason is that “…matters raised are pure constitutional issues that fall squarely within the High Court’s jurisdiction under Articles 23 and 165(3) and are not matters for the PPARB. The PPARB cannot grant Declarations on the constitutionality of a procurement method or quash a procurement plan.” 55.The petitioners have gone further to submit that their petition does not challenge a tender award or evaluation decision, which, in their view, are matters that fall squarely within the jurisdiction of the Review Board under section 167 of the Act. Their case, according to their submissions, is centred on the Constitutionality of the change in procurement method, which, in their view, is contrary to Article 227 of the Constitution and the procuring entity's departure from the approved procurement plans and budgets. They are also questioning what, in their view, is “the exposure of public funds to massive loss in violation of Article 201.” What they deem infractions amount to violations of national values and principles of governance under Article 10 of the Constitution. It is their case that these questions “are structural constitutional violations, not bidding grievances” which the review Board lacks the requisite mandate to dispose of. 56.The petitioners have also argued that they are public-spirited litigants and not bidders and that section 167 of the Act limits accessibility to the Review Board to “candidates or tenderers”, of which the petitioners are not part. 57.Citing Okiya Omtatah Okoiti versus Kenya Ports Authority & 4 Others (2021) eKLR, the petitioners have urged that this Honourable Court entertained a similar constitutional challenge to the 1st respondent’s procurement processes. It is submitted that in that case, the Court held that it retained supervisory jurisdiction over the Review Board and that it may entertain constitutional challenges that the Board cannot determine. It has, therefore, been urged that the doctrine of constitutional avoidance does not apply in this case where what the petitioners have described as “the core issues” are constitutional values and principles. More so, this Honourable Court has original and unlimited jurisdiction to interpret the Constitution under Article 165(3)(d). 58.A "candidate" is defined in section 2 of the Act to mean “a person who has obtained the tender documents from a public entity pursuant to an invitation notice by a procuring entity”. 59.The petitioners have not only exhibited to their affidavit in support of the petition and the application the tender document but they have also extensively referred to it in support of their allegations against the tender. For instance, they have sworn as follows:“7.That the 1st Respondent floated Tender No. KPA/039/2025-26/ES for the Supply, Testing and Commissioning of Fourteen (14) New Reachstackers through restricted tendering. Annexed hereto at pages 29 - 146 of Exhibit OOO-1 is a copy of the said tender notice and tender document”.9.That the 1st Respondent also floated Tender No. KPA/053/2025-26/CCE for the Supply, Testing and Commissioning of Fifteen (15) New Forklift Trucks through restricted tendering. Annexed hereto at pages 147 - 334 of Exhibit OOO-1 is a copy of the said tender notice and tender document. (Emphasis added). 60.In the absence of any evidence to the contrary, the court is entitled to proceed on the presumption that the petitioners must have “obtained” the tender document in the context of section 2 of the Act, which, in any event, is not specific as to the form or means the “obtaining” takes or entails. And if that be the case, the petitioners fit the description of a “candidate” who, under section 167(1) has the requisite locus to seek review of a procuring entity’s decision or decisions including the validity or legitimacy of a tender. 61.It is also worth noting that besides a party who may properly be described as an applicant or respondent, section 167 (4) of the Act permits the Review Board to include in the review proceedings “such other persons as the Review Board may determine.” As to the capacity in which “such other persons” may appear is a question left to the Board to determine. 62.It follows that it is not true, as argued by the petitioners, that review proceedings before the Board are restricted to the candidates and tenderers only. But even if that were the case, it has been demonstrated by the sheer fact that the petitioners “obtained” the tender document pursuant to an invitation notice by the procuring entity that they qualify as candidates for purposes of instituting proceedings under section 167(1) of the Act. 63.This does not necessarily open a floodgate of applications for review by busybodies who may want to inundate the Review Board with baseless applications for no reason other than ulterior motives. The Review Board is competent enough to assess whether any application filed before it is brought in good faith. What is more, frivolous and vexatious applicants risk incurring the burden of costs if their applications are dismissed. Section 173 (d) of the Act gives the Board the power to order payment of costs to or by any party to the review proceedings. It reads as follows:173.Upon completing a review, the Review Board may do any one or more of the following—(a)…(b)…SUBPARA (c)(d)order the payment of costs as between parties to the review in accordance with the scale as prescribed; and(e)… 64.Although the petitioners have been adjudged to have obtained the tender document, they have argued that the Review Board is bereft of any authority to entertain the questions that the petitioners have raised in this petition and that the only forum properly placed to determine what, in the petitioners’ view, are weighty constitutional questions and grant the prayers sought is this Honourable Court. 65.To be precise, they have argued that even the question of variation of a procurement method, in this case, from an open tender to a restricted tender, cannot be entertained by the Review Board and, therefore, it is only through a constitutional petition that this question can be determined. 66.On this particular issue, the petitioners have pleaded, thus:“20.a.Unauthorized Change of Procurement Method: The approved and published procurement plan designates the procurement method for reachstackers as “open tender” (sections 91 & 96 of the PPADA,) pursuant to Rule 41(g) of the Regulations. The 1st Respondent unilaterally altered the method to restricted tendering without lawful justification, in direct contravention of the approved plan, in order to restrict open competition.22.b.Unauthorized Change of Procurement Method: The plan provides for two (2) 16-Ton Forklifts to be procured through “open tender.” The impugned tender has unlawfully altered the method to restricted tendering without justification.24.aUnauthorized Change of Procurement Method: The 1st Respondent’s own approved procurement plan for FY 2025/2026, published pursuant to Rule 42 of the Regulations, designates the procurement method for terminal tractors as “open tender” pursuant to Rule 41(g) of the Regulations. The 1st Respondent has, without lawful justification, unilaterally altered the procurement method from open tender to restricted tender in direct contravention of the approved procurement plan”. 67.My first reservation with the petitioners’ position on this question of the tender method is that, under section 167(4) of the Public Procurement and Asset Disposal Act, it is the choice of the procurement method that is not subject to review proceedings before the Review Board; the alteration of the procurement method is not beyond the reach of the Review Board. Whether the procuring entity made a choice or altered its choice of the procurement method is not a question of semantics because, first, section 167(4) expressly states that it is the “choice” of the Procurement method that cannot be questioned before the Review Board. This section reads as follows:The following matters shall not be subject to the review of procurement proceedings under subsection (1)—SUBPARA (a)the choice of a procurement method;SUBPARA (b)a termination of a procurement or asset disposal proceedings in accordance with section 63 of this Act; andSUBPARA (c)where a contract is signed in accordance with section 135 of this Act. 68.And perhaps to emphasise that the word “choice” is deliberately employed, section 91 also reiterates and states as follows:“91.Choice of procurement procedure(1)Open tendering shall be the preferred procurement method for procurement of goods, works and services.(2)The procuring entity may use an alternative procurement procedure only if that procedure is allowed and satisfies the conditions under this Act for use of that method.(3)Despite sub-sections (1) and (2) open tendering shall be adopted for procurement of goods, works and services for the threshold prescribed in the respective national and county Regulations." 69.Section 92 goes further to outline various procurement methods out of which a procuring entity may chose for procurement of works, goods or services or to dispose of assets. It states as follows:“92.Methods of procurement(1)Subject to this Act and prescribed provisions, an accounting officer of a procuring entity shall procure goods, works or services by a method which may include any of the following—(a)open tender;(b)two-stage tendering;(c)design competition;(d)restricted tendering;(e)direct procurement;(f)request for quotations;(g)electronic reverse auction;(h)low value procurement;(i)force account;(j)competitive negotiations;(k)request for proposals;(l)framework agreements; and(m)any other procurement method and procedure as prescribed in regulations and described in the tender documents.(2)The procedure for competitive negotiations set out in sections 131, 132 and 133 of this Act shall apply, with necessary modifications, to procurement of goods, works and non-consultancy services." 70.The procuring entity may “choose” any of the foregoing methods of tender upon initiation of the procurement process under section 73 of the Act, which is to the effect that, subject to the procuring entity’s procurement plan, initiation of the procurement process shall be as prescribed in the Regulations. Where a procuring entity alters its choice, which is the gravamen of the petitioners’ complaint on this question of the procurement method, the question is no longer about the choice of procurement method; it is a question of change of the choice of the method that has already been made. The petitioners could not, therefore, avoid the jurisdiction of the Review Board for the reason that, under section 167(4), the question before the Review Board was or would have turned out to be “the choice of a procurement method”. 71.That notwithstanding, irrespective of whether the question is that of a choice of a procurement method or alteration of a choice of a procurement method, I am not it is a constitutional question warranting a constitutional petition for determination. It is a simple question of breach of the statutory provisions of the Public Procurement and Asset Disposal Act, for which appropriate mechanisms for redress, and in certain instances, sanctions have been meted out. 72.It is worth remembering that the Court of Appeal has held that the Public Procurement and Asset Disposal Act was not just enacted to give effect to Article 227 of the Constitution. In Independent Electoral and Boundaries Commission (IEBC) v National Super Alliance (NASA) Kenya & 6 others [2017] KECA 436 (KLR), the Court held that the provisions of this Act are normative derivatives of Article 227 of the Constitution. In that case, the court held as follows:“From this preamble, it is manifest that the provisions of the Public Procurement and Asset Disposal Act, 2015 are normative derivatives from Article 227 of the Constitution. Any and all provisions of the Act must be read as stemming their legality from the Constitution. Of significance is the provision in Article 227 (2) (a), which stipulates that the Act of Parliament may provide for categories of preference in the allocation of contracts. This provision constitutionalises the methods of procurement identified in Part VII and XII of the Public Procurement and Asset Disposal Act, 2015." (see paragraph 151 of the judgment). 73.But it does not follow that every infraction of any of the provisions of the Public Procurement and Asset Disposal Act ordinarily raises a constitutional question which can only be addressed by way of a constitutional petition. The Act has set out self-contained mechanisms to address such infractions; for instance, section 167(1) provides recourse to a candidate or tenderer who claims to have suffered, or risks suffering, loss or damage due to a breach of a duty imposed on a procuring entity by this Act or the Regulations. Such a candidate may request a review before the Review Board and, if he is still dissatisfied with the Board’s decision, he is entitled to escalate the matter to this Honourable Court by way of a judicial review. He is also entitled to appeal to the Court of Appeal if he is aggrieved by the orders of this Honourable Court. 74.It is also worth remembering that under section 170(d) of the Act, the Review Board is entitled to entertain, in the review proceedings, such other persons as the Review Board may determine. 75.If I have to give the petitioners the benefit of doubt and proceed on the assumption that the question of the choice of method of procurement which as noted, is beyond the jurisdiction of the Review Board by dint of section 167(4) of the Act, is the issue that has been raised by the petitioners, the question that logically follows is whether a constitutional petition is the only means available to them to address their grievances. 76.The Public Procurement Administrative Review Board is one of the two bodies established under the Act to dispose of the disputes arising out of the procurement processes. The other body is the Public Procurement Regulatory Authority, which is established under section 8 of the Act. Its functions are set out in section 9 of the Act, and, owing to their relevance to the question at hand, it is necessary that I reproduce the entire section here; it reads as follows:“9.Functions of Authority(1)The functions of the Authority shall be to—(a)monitor, assess and review the public procurement and asset disposal system to ensure that they respect the national values and other provisions of the Constitution, including Article 227 and make recommendations for improvements;(b)monitor the public procurement system and report on the overall functioning of it and present to the Cabinet Secretary and the county executive member for finance in each county, such other reports and recommendations for improvements;(c)enforce any standards developed under this Act;(d)monitor classified procurement information, including that of specific items of security organs and make recommendations to the Cabinet Secretary;(e)monitor the implementation of the preference and reservation schemes by procuring entities;(f)prepare, issue and publicise standard public procurement and asset disposal documents and formats to be used by public entities and other stakeholders;(g)provide advice and technical support upon request;(h)to investigate and act on complaints received on procurement and asset disposal proceedings from procuring entities, tenderers, contractors or the general public that are not subject of administrative review;(i)research on the public procurement and asset disposal system and any developments arising from the same;(j)advise the Cabinet Secretary on the setting of standards including international public procurement and asset disposal standards;(k)develop and manage the State portal on procurement and asset disposal and ensure that it is available and easily accessible;(l)monitor and evaluate the preference and reservations provided for under this Act and provide quarterly public reports;(m)create a central repository or database that includes—(i)complaints made on procuring entities;(ii)a record of those prohibited from participating in tenders or those debarred;(iii)market prices of goods, services and works;(iv)benchmarked prices;(v)State organs and public entities that are non-compliant with procurement laws;(vi)statistics related to public procurement and asset disposal;(vii)price comparisons for goods, services and works; and(viii)any information related to procurement that may be necessary for the public;(n)inform, as applicable, the Cabinet Secretary, Parliament, the relevant County Executive member for finance, the relevant County Assembly or Auditor-General on issues of non-compliance with procurement laws once the relevant State organ or public entity ignores the written directives of the Authority, including material breaches of the measures established under this Act;(o)generally report to Parliament and the relevant county assembly;(p)develop a code of ethics to guide procuring entities and winning bidders when undertaking public procurement and disposal with State organs and public entities;(q)in undertaking its functions, cooperate with state and non-state actors with a view to obtaining recommendations on how public procurement and disposal can be improved;(r)ensure the procurement entities implement the preference and reservations and provide data to the Authority disaggregated to indicate the number of disadvantaged groups that have benefitted;(ra)develop, promote and support the training and capacity development of persons involved in procurement and asset disposal;(s)perform such other functions and duties as are provided for under this Act and any other relevant law.(2)If in the course of monitoring in accordance with section 9(1)(a), the Authority is of the opinion that civil or criminal proceedings ought to be preferred against a State Organ, public entity, state officer or public officer, the Authority shall refer the matter to the relevant authorities. (Emphasis added) 77.Of particular relevance to the question raised by the petitioners that they are not subject to the Administrative Review Board is section 9(1)(h), which acknowledges there may be parties other than those who have a standing before the Review Board but who deserve a forum to ventilate their grievances in the event they are dissatisfied or aggrieved by any particular tender or a procurement process. According to section 9 (1) (h) of the Act, the Authority is established to, among other things, take such category of people on board and investigate and act on their complaints. 78.According to section 10 of the Act, the Authority is managed by the Public Procurement Regulatory Board, at the helm of which is a Director-General whose office is established under section 15 of the Act. 79.Under section 35(1) of the Act, the Authority may undertake investigations relating to the procurement or disposal proceeding or contract with respect to a State organ or public entity for the purpose of determining whether there has been a breach of the Act or the Regulations made thereunder. And under subsection (2), an investigation under subsection (1) may be initiated by the Authority or on request in writing by a public institution or any other person who, in the circumstances of this case, would include the petitioners. 80.According to section 37 of the Act, once an investigation is completed, an investigation report to that effect is submitted to the Authority. The Director-General will act on the report in any of the ways stipulated under section 38, which reads as follows:"38.Order by the Director-General(1)If, after considering the report of an investigator, the Director-General is satisfied that there has been a breach of this Act, the Regulations or any directions of the Authority, the Director-General may, by order, do any one or more of the following—(a)direct the procuring entity to take such actions as are necessary to rectify the contravention;(b)terminate the procurement or asset disposal proceedings;(c)prepare and submit a summary of the investigator's findings and recommendations to the relevant authorities for action; or(d)require the procuring entity to transfer procuring responsibilities of the subject procurement to another procuring entity.(2)Before making an order under subsection (1), the Director-General shall give the following persons an opportunity to make representations—(a)the procuring entity; and(b)any other person whose legal rights the Director-General believes may be adversely affected by the order." 81.Based on the foregoing provisions of the law, questions of the procuring entity acting outside its procurement plan or the procurement budget; procurement of more equipment than what was budgeted or planned for; and the question of alteration or choice of procurement method are all questions that could have been properly disposed of through the Act’s inbuilt dispute resolution. It has not been demonstrated that the Authority was ill-equipped to determine those complaints and, most importantly, that the Authority could not grant the petitioners’ ultimate quest, namely, the termination of the tender or the procurement processes for the tenders in issue. 82.Section 39 of the Act is clear that if, per adventure, the petitioners were to be dissatisfied with the Authority’s decision, they would have been entitled to challenge it in this Honourable Court by way of judicial review. This section reads as follows:"39.Request for a Judicial ReviewThe procuring entity and any other person who was entitled to be given an opportunity to make representations under section 38 (2) may request Judicial Review against an order of the Director-General to the High Court within fourteen days after the order is made." 83.It is not lost to this Honourable Court that most, if not all, of the orders sought by the petitioners are in the nature of judicial review reliefs. Judicial review was, of course, the only alternative open to the petitioners, but they could file such an application only after exhausting the review mechanisms under the Act. This is what section 9(2) of the Fair Administrative Action Act provides; it states as follows:The High Court or a subordinate court under subsection (1) shall not review an administrative action or decision under this Act unless the mechanisms, including internal mechanisms for appeal or review, and all remedies available under any other written law are first exhausted. 84.Even then, the law recognises that there are circumstances when an aggrieved applicant may be excused and exempted from petitioning a body such as the Authority for relief before moving to this Honourable Court. This is catered for under section 9(4) of the Fair Administration Act, which reads as follows:"(4)Notwithstanding subsection (3), the High Court or a subordinate Court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice." 85.This window of sidestepping the Authority is subject to two conditions: first, it is only in exceptional circumstances that an aggrieved party may be exempted from exhausting the appeal or review process provided in the Act, and second, the aggrieved party must move the court for the exemption order. If, upon consideration of the application for exemption, the court is satisfied that it would be in the interest of justice to bypass the body which the statute has established as the forum of first instance for resolution of whatever dispute there may be, it will proceed to dispose of the matter accordingly. 86.The rationale behind the establishment of such quasi-judicial bodies, as the Review Board or the Authority, for that matter, as the first port of call is, in part, to benefit from the wide spectrum of expertise offered by members who ordinarily constitute such bodies. More often than not, the decision-making process, or the ultimate decision made by the decision-making bodies, requires some expert knowledge of the issues arising from the dispute with which these bodies are confronted. It is partly for this reason that a statute would enjoin the court from exercising jurisdiction and allow these bodies the first opportunity to resolve the dispute. 87.For instance, section 11 of the Act spells out the qualifications of the members of the Board of the Public Procurement Authority; it states, inter alia:(1)A person shall not be appointed as a chairperson of the Board unless that person—(a)possesses a university degree in a relevant field from a university recognised in Kenya;(b)has knowledge and experience of not less than ten years in any of the following fields—(i)procurement and supply chain management;(ii)finance;(iii)law;(iv)accounting; or(v)economics; and(c)meets the requirements of Chapter Six of the Constitution. 88.Section 15 (2) of the Act, on the other hand, sets the minimum qualifications for Director General of the Authority and states as follows:“(2)A person shall not be appointed as a Director-General under this section unless that person—(a)is a citizen of Kenya;(b)has a degree in a related field of study from a university recognised in Kenya, and can demonstrate a logical progression in acquiring the academic qualifications;(c)has at least ten years' experience in senior management position in procurement and supply chain management; and(d)meets the requirements of Chapter Six of the Constitution." 89.The Act places emphasis on the knowledge and experience of the appointees to the Board of the Authority. It follows that the Authority cannot be overlooked at whim, and it is, in part, for this reason that under section 9(4) of the Fair Administrative Action Act, it is incumbent upon an applicant to move the court as and when circumstances demand that he should be exempted from presenting his case to the body designated by statute to hear it first. No doubt, if, for reasons to be given, the court is of the firm view that the justice of the case demands that it should intervene despite the existence of the statutory prescribed means of disposing of the dispute, it will intervene and entertain the applicant’s application. 90.Reiterating the need to allow sufficient latitude to statutory organs to exercise their mandate and acknowledge their expertise, the court in Pevans East Africa Limited & another v. Chairman, Betting Control and Licensing Board and 7 Others (2013) eKLR; Civil Appeal No. 11 of 2018 held as follows:“Where the Constitution has reposed specific functions in an institution or organs of state, the court must give those organs sufficient leeway to discharge their mandate and only accept an invitation to intervene when those bodies are demonstrably shown to have acted in contravention of the Constitution, the law or that their decisions are so perverse, so manifestly irrational that they cannot be allowed to stand under the principles and values of our Constitution. Courts must decline to intervene at will in the Constitutionals spheres of other organs, particularly when they are invited to substitute their judgment over that of other of the organs in which constitutional power reposes, because those organs have expertise in their area of mandate, which the court do not normally have.” 91.Addressing the same issue in R versus Peterkin, ex p Soni (1972) Imm AR 253 Lord Widgery CJ had this to say:“Where Parliament has provided a form of appeal which is equally convenient in the sense that the appellate tribunal can deal with the injustice of which the applicant complains this court should in my judgement as a rule allow the appellate machinery to take its course. The prerogative orders form the general residual jurisdiction of this court whereby the court supervises the work of inferior tribunals and seeks to correct injustice were no other adequate remedy exists, but both authority and common sense seem to me to demand that the court should not allow its jurisdiction under the prerogative orders to be used merely as an alternative form of appeal when other and adequate jurisdiction exists elsewhere.” 92.The Court of Appeal held in Speaker of the National Assembly v. Karume, Civil Application No. NAI 92 OF 1992, where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. This decision was endorsed by the Supreme Court in Albert Mumba Chaurembo & 7 others (Sued on their own behalf and on behalf of predecessors and or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pensions) v Munyao & 148 others (Suing on their own behalf and on behalf of the plaintiffs and other members/beneficiaries of the Kenya Ports Authority Pensions Scheme)) (Petition 3 of 2016) [2019] KESC 83 (KLR) (8 November 2019) (Judgment). The Supreme Court went further to state as follows:“107.Where an Act of Parliament confers administrative power to an authority or a person, there is a presumption that it will be exercised in a manner which is fair. The court’s role in such matters was explained in Judicial Review Handbook by Michael Fordham (Third Edition) pp. 249- 256 as hereunder:“Every public body has its own role and has matters which it is to be trusted to decide for itself. The courts are careful to avoid usurping that role and interfering whenever it might disagree as regards those matters.”108.A similar position was taken in Council of Civil Service Unions vs. Minister for the Civil Service [1985] AC 374 HL to the effect that:“It is not for the courts to determine whether a particular policy or particular decisions taken in fulfilment of that policy are fair. They are only concerned with the manner in which those decisions have been taken and the extent of the duty to act fairly will vary greatly from case to case as indeed the decided cases since 1950 consistently show.” 93.While addressing the appellate and review mechanisms inbuilt within the Retirement Benefits Act and emphasising the procedures prescribed must be employed and exhausted before disputes are escalated to this Honourable Court, the Supreme Court held as follows:“115.In our considered view, the purpose of the RBA Act as a whole would be best served by reading the words as imperative terms that require, in the absence of any contrary laws, a strict interpretation of its provisions and that the administrative resolution mechanisms and the appellate processes by the Retirement Benefits Appeal Tribunal is exhausted in the first instance before recourse can be taken to the superior courts. This position was well set out in the case of Tom Kusienya (supra), in which the High Court expressly recognized the dispute resolution mechanism under the RBA Act in stating the following.“…the purpose of the Act as a whole and the specific dispute resolution provisions would be best served by reading the word “may” as an imperative term that requires that the appeal mechanism of the Tribunal is exhausted before recourse can be had to the High Court.” 94.The court went on to state:“the court must exercise restraint in exercising its jurisdiction under article 165. Where there exist alternative methods of dispute resolution, the court must exercise deference to the bodies statutorily mandated to deal with specific disputes in the first instance.“116. The foregoing verdict also finds support in an adage principle in administrative law of “Exhaustion of Administrative Remedies” and from the jurisprudence emanating from this court and the lower Courts, which has been restated with notoriety to the effect that, where there exists an alternative method of dispute resolution established by legislation, the courts must exercise restraint in exercising their Jurisdiction conferred by the constitution and must give deference to the dispute resolution bodies established by statutes with the mandate to deal with such specific disputes in the first instance.” 95.The statutory procedure provided is by way of a judicial review application to this Honourable Court after exhaustion of the review process before the Authority. 96.The other English decision I find appropriate to cite on this point is the English decision in R (G) v Immigration Appeal Tribunal [2005] 1 WLR 1445. In that case the Court of Appeal held that, although the introduction of a new statutory procedure did not remove the judicial review jurisdiction, the new procedure was held to be an adequate and proportionate protection for the claimant's rights and it was therefore a proper exercise of the court's discretion to decline to entertain an application for judicial review of issues which were or could have been the subject of statutory review. Lord Phillips MR observed, at para 20:“The consideration of proportionality involves more than comparing the remedy with what is at stake in the litigation. When Parliament enacts a remedy with the clear intention that this should be pursued in place of judicial review, it is appropriate to have regard to the considerations giving rise to that intention. The satisfactory operation of the separation of powers requires that Parliament should leave the judges free to perform their role of maintaining the rule of law, but also that, in performing that role, the judges should, so far as consistent with the rule of law, have regard to legislative policy." 97.I find this decision to be consistent with the Supreme Court of Kenya decision in Albert Mumba Chaurembo Case(supra). In short, tribunals such as the Authority are established to dispose of disputes before they escalate to the court; they are deliberately established as a matter of policy and to serve a particular purpose. Needless to say, under Article 159(1)(d) of the Constitution, tribunals are recognised as part of the system of courts in Kenya. They are considered subordinate courts and, therefore, it cannot be argued that submission to their dispute resolution processes torpedoes access to justice. 98.Although some of these decisions are with respect to judicial review applications, the principle of exhaustion of statutory procedures and remedies would equally apply to suits that are camouflaged as constitutional petitions when they ought to have been filed as ordinary suits. But even if I were to narrow the issue to whether a constitutional petition is viable, it has consistently been held that, under the doctrine of constitutional avoidance, a court will not determine a constitutional issue when a matter may properly be decided on another basis. 99.The argument by the petitioners that their grievances can only be properly addressed in the context of a constitutional petition appears to be on all fours with the arguments raised by the petitioners in the Supreme Court case of Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others (Petition 14, 14A, 14B & 14C of 2014 (Consolidated)) [2014] KESC 53 (KLR) (29 September 2014) (Judgment). 100.The case was about the digital migration of terrestrial television broadcasting from analogue to digital platforms. Media houses, namely, Royal Media Services Limited, Nation Media Services Limited and Standard Group Limited, alleged, inter alia, that their intellectual property rights had been violated and sought relief by way of a constitutional petition. 101.The late Majanja, J., captured their case as follows:“130.The petitioners allege in paragraph 72 of the petition that “In breach of the Petitioners' intellectual property rights, the 3rd Respondent has by a letter dated 19th August 2013 unlawfully authorised the 4th, 5th, 6th, 7th and 8th Respondents to intercept and transmit the Petitioners' broadcasts, the Petitioners' locally produced programs and third party licensed programs without their authorisation or consent.” As a result, they seek a permanent injunction against the 4th, 5th, 6th and 7th respondents to restrain the violation.” 102.In dismissing the petitioners’ argument that they could seek remedy by way of a constitutional petition, the learned judge held as follows:“In any case, a violation of intellectual property rights is not a matter to be addressed by a petition to enforce fundamental rights and freedoms because there is a specific legal regime established by law to address intellectual property rights. This court has on several occasions emphasized that where there is a specific mechanism of dispute resolution established by ordinary law, then such a process ought to be pursued and that not every wrong attracts constitutional relief. In Sanitam Services (EA) Ltd v Tamia Ltd and Others Nairobi Petition No. 305 of 2012 [2012]eKLR the court noted that, “[10] Any breach of the intellectual property rights against the respondents can be enforced through the legal mechanisms provided by statute or common law, where applicable, hence it is unnecessary to invoke the provisions of Article 22 to enforce what are ordinary rights.” 103.When the case escalated to the Supreme Court as Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others (Petition 14, 14A, 14B & 14C of 2014 (Consolidated)) [2014] KESC 53 (KLR) (29 September 2014) (Judgment), the Supreme Court upheld the learned judge’s reasoning and noted as follows:“It was the trial Court’s finding that the content generated by the 1st, 2nd and 3rd respondents had been freely available to the public on the digital platform, since its launch in 2009 (paragraph 66 of the Judgment). The learned Judge observed that a case of violation of intellectual property rights is not a matter to be addressed by a petition to enforce fundamental rights (paragraph 134). He relied on Sanitam Services (EA) Ltd. v. Tamia Ltd.&16 Others, Nairobi Petition No. 305 of 2012; [2012] eKLR, in which the Court held that a breach of intellectual property rights can be enforced through the legal mechanisms provided by statute or the common law, and that the invocation of the Constitution, particularly Article 22, was not necessary to enforce ordinary rights (paragraph 10).(254)The Appellate Court (Musinga J.A) agreed with Majanja J., that if indeed the appellants had violated the intellectual property rights of the broadcasters, a petition to enforce fundamental rights and freedoms was not the proper recourse, as there exists a definite legal regime for the resolution of such complaint (paragraph 136).(255)Section 35(4) of the Copyright Act provides an avenue for redress, in the event of an infringement. It thus provides:Infringement of any right protected under this Act shall be actionable at the suit of the owner of the right and in any action for the infringement the following reliefs shall be available to the plaintiff:a.relief by way of damages, injunctions, accounts or otherwise that is available in any corresponding proceedings in respect of infringement of their proprietary rights;(b)delivery-up of any article in possession of the defendant which appears to the court to be an infringing copy; or any article used or intended to be used for making infringing copies…”The court underscored the doctrine of constitutional avoidance as articulated by the appellants before and noted, thus:“(256)The appellants in this case are seeking to invoke the “principle of avoidance”, also known as “constitutional avoidance”. The principle of avoidance entails that a Court will not determine a constitutional issue when a matter may properly be decided on another basis. In South Africa, in S v. Mhlungu, 1995 (3) SA 867 (CC), the Constitutional Court, Kentridge AJ, articulated the principle of avoidance in his minority Judgment as follows [at paragraph 59]:I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.”(Emphasis added). 104.The court then referred to a United States decision in which the conditions under which the doctrine of constitutional avoidance may be applied were outlined and held as follows:“(257)Similarly, the U.S. Supreme Court has held that it would not decide a constitutional question which was properly before it, if there was also some other basis upon which the case could have been disposed of (Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347 (1936))." 105.The court concluded as follows:“(258)From the foundation of principle well developed in the comparative practice, we hold that the 1st, 2nd and 3rd respondents’ claim in the High Court, regarding infringement of intellectual property rights, was a plain copyright- infringement claim, and it was not properly laid before that Court as a constitutional issue. This was, therefore, not a proper question falling to the jurisdiction of the Appellate Court.” 106.Just as urged by the petitioners in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others (supra), the petitioners have, in their petition, invoked several articles of the Constitution to underpin their quest for the reliefs sought. But the description of a suit that is, for all intents and purposes, an ordinary civil claim or invoking constitutional provisions in such a suit does not necessarily qualify it as a constitutional petition. 107.In the Communications Commission of Kenya & 5 Others versus Royal Media Services Limited & 5 others (supra), the Supreme Court agreed with this Honourable Court that the petitioners’ right to intellectual property had not been violated but even if there was such a violation, their remedy, as much as the manner of approaching court, was available under statute, in particular, section 34 of the Copyright Act. 108.I addressed this same question in the context of the sanctity of a constitutional petition in enforcement of constitutional rights and with particular refence to suits filed as constitutional petitions when they ought to have been filed as ordinary suits or judicial review applications, in particular, in Gichuhi & 2 others v Data Protection Commissioner; Waigwa & another (Interested Parties) (Application E202 of 2023) [2024] KEHC 15107 (KLR) (Judicial Review) (2 December 2024) where I noted as follows:“Article 23 (3) (f) ought not to be interpreted as creating room for applications for judicial review to be now fashioned as constitutional petitions. By the same token, the same article should not be read as supplanting the procedure to obtain judicial review reliefs.If it was to be argued that one can now file a constitutional petition for judicial review reliefs instead of an ordinary application for judicial review only because these reliefs can be granted under article 22(3)(f) of the Constitution, then nothing stops a litigant from filing a constitutional petition for compensation of damages as a result of, for instance, a running down accident or a wrongful dismissal from employment or a material damage or such other claims where an order for compensation can be made against the state since, according to Article 22(3) (e), the court may make an order for compensation in a constitutional petition filed under Article 22 of the Constitution.This is the absurdity that would ensue if the courts were to proceed on the assumption that, besides filing a judicial review application in accordance with sections 8 and 9 of the Law Reform Act and order 53 of the Civil Procedure Rules, an applicant has an alternative path of filing a constitutional petition for similar judicial review reliefs that he would have sought and, perhaps, obtained in an ordinary judicial review application. Needless to say, procedural rules are necessary if only to avoid chaotic litigation and, for that reason, they must be observed as long as their observance does not fit what the Constitution has described as “undue regard to procedural technicalities.”And not every suit that ought to have been filed as such should be wittingly crafted as a constitutional petition solely to evade the procedural strictures that come with ordinary suits and which, for one reason or another, a litigant may not be in a position to comply with or which he simply wants to skirt around. As much as the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, are liberal in the manner of lodging petitions, the sanctity of constitutional petitions must be jealously guarded.The sanctity of constitutional petitions in addressing violations of the Constitution and constitutional rights was addressed by the Privy Council in Kemrajh Harrikissoon Versus Attorney General of Trinidad & Tobago (1979) 3WLR 62. The brief facts of that case were that the teaching service commission of Trinidad and Tobago, acting under regulation 135(1) of the public service commission regulations 1966 (as adopted and amended by the commission in 1968), made an order transferring the appellant teacher to another school, without giving him the three months’ notice that was required unless the exigencies of the teaching service did not so permit. The appellant considered that the transfer was intended as a punishment for allegations he had made of improprieties at the first school and that the exigencies of the teaching service did not justify his transfer on less than three months’ notice. Instead of availing himself of the review procedure provided by regulation 135, he applied to the High Court under section 6 of the Constitution of 1962 for a Declaration that the human rights and fundamental freedoms granted to him by section 1 of the Constitution had been violated. The High Court rejected the appellant’s claim. He appealed to the Court of Appeal of Trinidad and Tobago, which dismissed his appeal. When the matter went to the Privy Council, the latter held as follows:“The notion that wherever there is a failure by an organ of the Government or a public authority or public officer to comply with the law, this necessarily entails the contravention of some human right or fundamental freedom guaranteed to individuals by Chapter I of the Constitution is fallacious. The right to apply to the High Court under Section 6 of the Constitution for redress when any human right or fundamental freedom is or is likely to be contravened is an important safeguard of those rights and freedoms; but its 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. In an originating application to the High Court under Section 6(1), the mere allegation that a human right or fundamental freedom of the applicant has been or is likely to be contravened is not of itself sufficient to entitle the applicant to invoke the jurisdiction of the court under the subsection if it is apparent that the allegation is frivolous or vexatious or an abuse of the process of the court as being made solely for the purpose of avoiding the necessity of applying in the normal way for the appropriate judicial remedy for unlawful administrative action which involves no contravention of any human right or fundamental freedoms.” (Emphasis added).I cannot put it any better, save to reiterate that if courts were to entertain ordinary suits as constitutional petitions only because the Constitution allows the courts to grant reliefs that would otherwise be made in those ordinary suits, constitutional petitions would lose their sanctity as the means by which to protect fundamental rights and freedoms under the Constitution. The prescription, either by Acts of Parliament or rules made thereunder, of the means by which particular suits should be filed is meant to, among other reasons, bring order to litigation or court process and avoid the kind of chaos that would result if all those suits were to be filed as constitutional petitions.” 109.For the reasons I have given, the petitioners' purported constitutional petition strikes me as more an abuse of the due process of this Honourable Court than a competent petition. Having reached that conclusion, the question of whether this suit is res judicata is moot. However, to the extent that it is relevant to the question of exhaustion of the appeal and review mechanisms on disputes arising out of procurement processes under the Act before invoking the jurisdiction of this Honourable Court, I have to mention one or two things. 110.As noted earlier in this judgment, there were several other suits filed in this Honourable Court concerning the same tenders that are the subject of this petition. I heard and determined two of the suits; these were judicial review application nos. E009 of 2026 and E010 of 2026. These suits were filed pursuant to Section 175 (1) of the Act, according to which a person aggrieved by a decision of the Review Board may seek to move this Honourable Court for judicial review of the decision. The section reads as follows:“175.Right to judicial review of procurement(1)A person aggrieved by a decision made by the Review Board may seek judicial review by the High Court within fourteen days from the date of the Review Board's decision, failure to which the decision of the Review Board shall be final and binding to both parties." 111.The “decision” to which reference has been made is, no doubt, a decision on an application for review made before the Review Board under section 167 (1). According to this provision of the law, a candidate or a tenderer, who claims to have suffered or risk suffering, loss or damage due to the breach of a duty imposed on a procuring entity either by Public Procurement and Asset Disposal Act or the regulations made thereunder, is entitled to seek administrative review within a prescribed time of the occurrence of the breach or upon notification of the award. 112.Section 175(4) of the Act is categorical that suits filed under section 175(1) must be heard and determined within 45 days of the date of filing of the application. When a constitutional petition is filed outside the provisions of section 175(1) and (4) impugning the same tender whose propriety is the subject of judicial review proceedings, the court is presented with unwarranted dilemma of having to determine the dispute or disputes arising from a particular tender in exercise of its judicial review jurisdiction, on the one hand, and as a constitutional petition, on the other hand. This exposes the court to the danger of reaching decisions that, in effect, may be contradictory and, therefore, difficult to implement. 113.Judicial review proceedings would ordinarily concern the process rather than the merits of the decision; in contrast, a constitutional petition interrogates not only the process but also the merits of the decision. A situation where the decision would be found wanting in a constitutional petition, but the process by which it was reached given a clean bill of health in a judicial review proceeding, would certainly bring the administration of justice into disrepute. Such a situation can be avoided if, for instance, the petitioners lodge their complaint about the tenders with the Public Procurement Regulatory Authority. 114.The Authority has immense powers under section 38, including the power to terminate the tender altogether. This section reads as follows:“38.Order by the Director-General(1)If, after considering the report of an investigator, the Director-General is satisfied that there has been a breach of this Act, the Regulations or any directions of the Authority, the Director-General may, by order, do any one or more of the following—(a)direct the procuring entity to take such actions as are necessary to rectify the contravention;(b)terminate the procurement or asset disposal proceedings;(c)prepare and submit a summary of the investigator's findings and recommendations to the relevant authorities for action; or(d)require the procuring entity to transfer procuring responsibilities of the subject procurement to another procuring entity. 115.If the Authority through its Director General can terminate a tender, it is possible that it can, in the same breath, suspend the tender or the procurement process pending the determination of a complaint or complaints lodged before it. The point is, if the dispute resolution mechanism laid down by the Act is followed to the letter, the possibility that the court would be racing against time to hear and determine a judicial review application filed under section 175(1) of the Act and subsequently determine the same dispute filed as a constitutional petition would be diminished completely. 116.To be precise, if the petitioners had taken the initiative and lodged their complaint as soon as the tender was advertised, it is possible that the procurement process would have been suspended or nipped in the bud if they had a valid case against the floating of the tender or tenders. It is mala fide on the part of the petitioners to wait until the tender has been awarded before lodging a constitutional petition, when they could have availed of the dispute resolution mechanism under the Act and lodged their complaint at the earliest opportunity. 117.Whatever the case, I am not persuaded that it was ever the intention of the legislature that a tender could simultaneously be challenged by way of judicial review and through a constitutional petition. If that were possible, nothing would stop a disgruntled party from filing a judicial review application under section 175(1) of the Act and, perhaps to get a second bite at the cherry, file a constitutional petition against the same tender or tender process through a proxy. 118.In the final analysis, I hold that the petitioners’ petition is misconceived and an abuse of the process of this Honourable Court. It is hereby struck out. Parties will bear their respective costs. Orders accordingly. SIGNED, DATED AND DELIVERED ON 15 JUNE 2026NGAAH JAIRUSJUDGE