https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12126

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **JUDICIAL REVIEW DIVISION** **HCJR MISC. APP NO. E197 OF 2024** **IN THE MATTER OF ARTICLES 47 AND 50 OF THE CONSTITUTION OF KENYA, 2010** **AND** **IN THE MATTER OF SECTIONS 41 AND 42 OF THE PUBLIC PROCUREMENT AND ASSET DISPOSAL ACT, 2015** **AND** **IN THE MATTER OF REGULATION 22 OF THE PUBLIC PROCUREMENT AND ASSET DISPOSAL REGULATIONS, 2020** **AND** **IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTION ACT, 2015** **AND** **IN THE MATTER OF ORDER 53 OF THE CIVIL PROCEDURE RULES** **BETWEEN** **REPUBLIC** .......................................................................................... **APPLICANT** **AND** **PUBLIC PROCUREMENT REGULATORY BOARD**……………….... **1ST RESPONDENT** **CHARLES NZAI** ...................................................................... **2ND RESPONDENT** **AND** **KENYA AIRPORTS AUTHORITY**……………………………….... **1ST INTERESTED PARTY** **KENYA PROFESSIONAL CLEANERS ASSOCIATION…**. **2ND INTERESTED PARTY** **AND** **PEESAM LIMITED** .......................................................... **EX PARTE APPLICANT** **JUDGMENT** **Introduction;** 1. Before the Court is the ex parte applicant’s Notice of Motion dated 4th September 2024, instituted pursuant to leave granted by the Court. The motion challenges the decision of the Public Procurement Regulatory Board made on 20th August 2024 in Debarment Application No. 5 of 2024, by which Peesam Limited was debarred from participating in public procurement and asset-disposal proceedings for three years. 2. The ex parte applicant seeks, principally: 3. An order of certiorari removing into this Court and quashing the decision dated 20th August 2024; 4. An order of prohibition restraining the 1st Respondent from publishing the applicant’s details and corresponding period of debarment; 5. An order of prohibition restraining the 1st Respondent from forwarding the applicant’s particulars to the Cabinet Secretary for gazettement; 6. An order of mandamus compelling the Ethics and Anti-Corruption Commission or any other investigative agency to investigate the 2nd Respondent for allegedly acquiring and using confidential procurement documents; 7. Costs of the application; and 8. Such further orders as the Court may consider just. 9. The application is founded upon the statutory statement and verifying affidavit sworn by Samuel Mburu Nganga on 2nd September 2024, the supplementary affidavit sworn by Samuel Nganga, and the further affidavit sworn on 28th October 2024. 10. The application is opposed by the 1st Respondent through the replying affidavit sworn by Raphael Muia Ngalatu, the Acting Secretary of its Debarment Committee, on 12th September 2024. 11. The 1st Interested Party opposed the application through the replying affidavit sworn by Vincent Korir, its Procurement General Manager, on 14th October 2024. 12. Following its joinder to the proceedings, the 2nd Interested Party supported the application through the affidavit sworn by Christopher Macharia Kamau on 25th July 2025. **Factual background;** 1. Peesam Limited participated in two procurement processes conducted by the Kenya Airports Authority: 2. Tender No. KAA/WJR/OT/0059/2022–2023 for the provision of environmental management services at Wajir International Airport; and 3. Tender No. KAA/OT/MLD/0096/2022–2023 for the provision of cleaning services for general areas, washrooms, pest control, fumigation and waste management at Malindi Airport. 4. The tender documents required bidders to submit payroll records for specified periods, duly certified by the bidders’ banks as confirmation that the employees’ salaries had been remitted through those banks. 5. Peesam’s bids were found non-responsive. By letters dated 17th May 2023 and 24th July 2023, KAA informed Peesam that it had been unsuccessful because it had submitted payroll documents referring to contracts at KAA’s Wajir and Ukunda facilities during periods when it had no such contracts. 6. On 25 June 2024, Charles Nzai filed Form DC1 requesting the debarment of Peesam Limited. He alleged, among other matters, that Peesam had given false information about its qualifications by submitting false payroll documents in the two tenders. 7. The request initially invoked section 41(1)(d) of the Public Procurement and Asset Disposal Act together with other provisions relating to procurement offences and corruption. 8. At its sitting of 9th July 2024, the Debarment Committee considered the request and resolved to seek verification from KAA. By its letter dated 10 July 2024, the Committee requested KAA to confirm the authenticity of the two notification letters and the allegations contained in them. 9. KAA confirmed that the letters emanated from it. It further confirmed that its evaluation committees had found that Peesam submitted payrolls referring to contracts at Wajir and Ukunda during periods when Peesam had no such contracts. 1. Upon considering the request and KAA’s verification, the Committee found that a prima facie case had been established under section 41(1)(d) of the Act. 2. On 23rd July 2024, the Committee issued Peesam with a Notice of Intended Debarment and directions. The notice identified the relevant tenders, the alleged falsification and the statutory ground upon which debarment was contemplated. 3. The notice granted Peesam fourteen days from the date of service within which to file and serve its written response. It further provided that, if the material facts were disputed, the Committee would convene a hearing after the close of pleadings. 1. Peesam did not file a written response with the Committee. Instead, on 5th August 2024, it instituted Nairobi High Court Judicial Review Application No. E092 of 2024, seeking leave to challenge the debarment proceedings and requesting that leave operate as a stay. 2. In a ruling delivered on 7th August 2024, the Court granted Peesam leave to institute substantive judicial review proceedings. It did not, however, certify the application as urgent or grant an order staying the debarment proceedings. 3. In the absence of a stay, the Debarment Committee proceeded with the request. As at the date of its determination, Peesam had neither filed a written response nor entered appearance in the debarment proceedings. 1. The Committee considered the request, the supporting documents and KAA’s verification. On 20th August 2024, it found that Peesam had given false information about its qualifications contrary to section 41(1)(d) of the Act. 2. The Committee consequently debarred Peesam from participating in procurement and asset-disposal proceedings for three years, being the statutory minimum period. 3. Aggrieved by that decision, Peesam instituted the present proceedings. **The ex parte applicant’s case** 1. Peesam contends that the debarment process was procedurally improper and violated Articles 47 and 50 of the Constitution, section 4 of the Fair Administrative Action Act and Regulation 22 of the Public Procurement and Asset Disposal Regulations. 2. It argues that the Committee did not convene an oral hearing or issue the seven-day notice to appear required by Regulation 22(5)(f). In its view, that notice is an independent and unconditional procedural requirement applicable to every debarment proceeding. 3. Peesam further contends that its institution of JR Application No. E092 of 2024 amounted to contesting the debarment request. It argues that service of those proceedings upon the 1st Respondent triggered Regulation 22(5)(e), requiring the Committee to convene an oral hearing to determine the disputed facts. 4. The applicant maintains that the payrolls were genuine. Its explanation is that they related to employees who had worked under previous KAA contracts but were erroneously labelled by the employee who prepared the tender documents. It characterises the discrepancy as an innocent mistake rather than deliberate falsification. 5. The applicant also challenges the provenance of the notification letters attached to the request for debarment. It argues that Charles Nzai was neither a bidder nor a member of KAA’s evaluation committee and could not lawfully have possessed the documents. 6. Peesam therefore contends that the documents were confidential under section 67 of the Act and were obtained without following the Access to Information Act. It invokes Article 50(4) of the Constitution and submits that evidence obtained in violation of a constitutional right should have been excluded. 7. The applicant argues that disqualification from the two tenders was sufficient punishment and that debarment for three years was excessive, irrational and disproportionate. 8. It consequently urges the Court to quash the decision, prohibit its publication and compel the Ethics and Anti-Corruption Commission or another investigative agency to investigate the alleged unlawful acquisition of the documents. **The 1st Respondent’s case;** 1. The 1st Respondent maintains that the Committee acted within its statutory mandate under section 41 of the Act and followed the procedure prescribed by Regulation 22. 2. It states that the Notice of Intended Debarment granted Peesam fourteen days within which to file a written response. Peesam ignored that opportunity and instead instituted separate judicial review proceedings. 3. The 1st Respondent contends that JR Application No. E092 of 2024 did not constitute the written response required under Regulation 22(5)(d). It further points out that the Court did not stay the debarment proceedings. 4. It argues that an oral hearing becomes necessary only where an affected person files a written response disputing the facts. Since Peesam filed no response, there were no formally disputed facts requiring an oral hearing. 5. The 1st Respondent maintains that the request was supported by relevant material independently verified with KAA and that the final decision was rationally connected to the evidence before the Committee. 6. It characterises the present application as a disguised appeal inviting the Court to reconsider the merits of the decision and substitute its own factual conclusions for those of the specialised statutory body. **The 1st Interested Party’s case** 1. KAA confirms that, on 10th July 2024, it received the Committee’s request for verification of documents relating to Debarment Application No. 5 of 2024. 2. KAA states that it supplied the Committee with the relevant procurement records and confirmed that the notification letters were authentic. It also confirmed the position taken by its evaluation committees concerning the payroll documents. 1. It argues that supplying procurement records to the statutory body charged with considering debarment requests was lawful and did not violate the confidentiality provisions of the Act. 2. KAA further confirms that JR Application No. E092 of 2024 was filed on 5 August 2024 and that leave was granted on 7 August 2024 without an accompanying stay. It therefore submits that nothing prevented the Committee from proceeding with the debarment request. **The 2nd Interested Party’s case** 1. The Kenya Professional Cleaners Association supports the application. It argues that the record does not establish that a properly constituted Debarment Committee met, attained quorum or made its decision by consensus or majority vote. 2. It further contends that Charles Nzai failed to appear and prosecute the request. It submits that, by proceeding in his absence, the Committee assumed the roles of complainant, prosecutor and adjudicator. 1. The 2nd Interested Party relies upon **Republic v Public Procurement Regulatory Debarment Committee & 2 others; Judiciary (Interested Party); Cocopan Construction Kenya Ltd (Ex parte Applicant) [2025] KEHC 10899 (KLR).** 1. It also adopts the applicant’s arguments that the facts were contested, an oral hearing was mandatory and the documents attached to the request were unlawfully obtained. **Issues for determination** 1. Having considered the application, affidavits, documentary record and submissions, the following issues arise for determination: 1. The permissible scope of the Court’s judicial review jurisdiction; 2. Whether the debarment proceedings complied with Regulation 22 and the requirements of procedural fairness; 3. Whether the Committee was properly constituted and whether the non-participation of Charles Nzai invalidated the proceedings; 4. Whether the Committee relied upon unlawfully obtained evidence; 5. Whether the decision was lawful, rational, reasonable and proportionate; 6. Whether the applicant is entitled to certiorari, prohibition and mandamus; and 7. Who should bear the costs. **Analysis and determination** **Scope of judicial review** 1. Judicial review is principally concerned with the legality of administrative action rather than the correctness of the decision on its merits. The Court does not sit on appeal over the Debarment Committee and may not substitute its factual conclusions merely because it might have reached a different result. 2. That principle must, however, be applied in light of Article 47 of the Constitution and sections 4 and 7 of the Fair Administrative Action Act. Administrative action must be lawful, reasonable and procedurally fair. 3. **In Suchan Investment Limited v Ministry of National Heritage and Culture & 3 others [2016] eKLR**, the Court of Appeal recognised that constitutional judicial review may examine aspects of the merits where necessary to determine legality, rationality, reasonableness and proportionality. It nevertheless affirmed that judicial review is not an appeal. 4. This Court’s task is therefore to determine whether the Committee acted within its statutory mandate, followed the prescribed procedure, afforded Peesam a reasonable opportunity to answer the allegations, considered relevant material and reached a decision rationally connected to the evidence before it. 1. The Court cannot undertake a fresh evaluation of the payroll documents or determine, as a court of first instance, whether their incorrect description resulted from fraud, negligence or an innocent clerical error. Those were matters that Peesam ought to have placed before the statutory decision-maker. **Compliance with Regulation 22** 1. Section 41(1)(d) of the Public Procurement and Asset Disposal Act empowers the Board to debar a person who, in procurement or asset-disposal proceedings, gives false information about his or her qualifications. 1. Section 41(5) provides that the debarment procedure shall be prescribed by Regulations. Regulation 22 establishes a sequential process. 2. Upon receipt of a request, the Board must analyse it within thirty days to determine whether a prima facie case exists. If one is established, it must issue a notice of intended debarment requiring the affected person to file a written response. 3. The notice must set out the grounds for debarment, a brief statement of the supporting facts and the possible consequences. The affected person must file a written response within fourteen days. 4. Where that response contests the material facts, the Committee must convene a debarment hearing within twenty-one days. The parties must then be given seven days’ notice to appear. 5. In the present case, Charles Nzai filed Form DC1 on 25 June 2024. The request identified the two tenders, the payroll documents alleged to have been falsified, the statutory grounds invoked and the notification letters relied upon. 6. The Committee did not accept the allegations uncritically. At its sitting of 9 July 2024, it resolved to obtain verification from KAA. By its letter dated 10 July 2024, it sought confirmation of the authenticity of the notification letters and the underlying allegations. 7. KAA confirmed that the letters emanated from it and that its evaluation committees had found that Peesam submitted payrolls referring to contracts at Wajir and Ukunda during periods when no such contracts existed. 8. Upon considering that material, the Committee found a prima facie case under section 41(1)(d). It issued the Notice of Intended Debarment dated 23 July 2024. 1. The notice identified the applicable statutory ground, stated the relevant facts, attached the request and supporting documents and notified Peesam that debarment might follow. It expressly granted Peesam fourteen days within which to file and serve its written response. 2. Peesam does not deny receiving that notice. It did not, however, file a response with the Committee. Instead, it instituted JR Application No. E092 of 2024 on 5 August 2024. 3. In its ruling dated 7 August 2024, the Court granted leave to institute substantive judicial review proceedings but did not grant a stay of the debarment process. 4. Peesam and the 2nd Interested Party contend that the institution and service of JR E092 amounted to contesting the intended debarment and consequently triggered the oral-hearing requirement under Regulation 22(5)(e). 5. That construction cannot be sustained. Regulation 22(5)(e) expressly links the hearing to receipt of “the response in paragraph (d).” The response contemplated is a written response filed with the Committee within fourteen days. 6. Court proceedings seeking to challenge or arrest the administrative process are not a substitute for the statutory response. A judicial review application serves a different purpose and is addressed to a different forum. 7. Further, the filing of proceedings does not automatically suspend administrative action. In the absence of a stay or prohibitory order, the Committee remained entitled to discharge its statutory mandate. 8. The applicant’s assertion that orders in JR E092 were served upon the Committee on 23 July 2024 is also inconsistent with the established chronology. The application was filed on 5 August 2024 and the ruling granting leave was delivered on 7 August 2024. Orders made in August could not have been served on 23 July 2024. 9. The seven-day notice under Regulation 22(5)(f) must be read contextually with paragraph (e). It is notice to attend the hearing convened to determine facts disputed through the written response. It is not an independent obligation requiring an oral hearing in every debarment request. 10. The Court in ***Republic v Public Procurement Regulatory Debarment Committee & 2 others; Kisii Teaching and Referral Hospital (Interested Party); Babs Security Services Limited (Ex parte)* [2023] KEHC 22525 (KLR)** recognised that the hearing contemplated under Regulation 22(5)(e) is an oral hearing at which disputed evidence may be tested. 11. The distinguishing consideration is that such a hearing arises where the material facts have been contested through the prescribed response. Peesam filed no response and placed no disputed facts before the Committee. 12. Procedural fairness requires that a person affected by administrative action be afforded a reasonable opportunity to state its case. It does not require the administrator to compel that person to utilise the opportunity given. 13. Peesam cannot therefore transform its failure to respond into a denial of the right to be heard. I find that the absence of an oral hearing and seven-day hearing notice did not constitute procedural impropriety in the circumstances of this case. **Constitution of the Committee** 1. The 2nd Interested Party submits that there is no evidence that the Board constituted a Debarment Committee, that the Committee had quorum or that the impugned decision was reached by consensus or majority vote. 2. The contemporaneous record demonstrates otherwise. The Committee sat on 9 July 2024 and directed that verification be obtained from KAA. It subsequently found a prima facie case on 23 July 2024 and issued the Notice of Intended Debarment through its Acting Secretary. 3. The Committee thereafter prepared its written case analysis, findings and determination. The final decision dated 20 August 2024 was authenticated by the Chairperson and Secretary of the Debarment Committee. 4. Although the decision does not name every Committee member or reproduce the minutes and voting pattern, the absence of those particulars from its face does not establish that the Committee was not constituted or lacked quorum. 5. No evidence was presented showing that an unauthorised person made the decision, that the prescribed membership was absent or that the Chairperson and Secretary acted without authority. 6. In the circumstances, the allegation that no Committee was constituted remains unsupported. I find that the request was considered and determined by the statutory Debarment Committee. **Non-participation of Charles Nzai** 1. The 2nd Interested Party further argues that Charles Nzai did not appear or prosecute the request and that the Committee consequently assumed the roles of complainant, prosecutor and adjudicator. 2. Reliance was placed upon ***Republic v Public Procurement Regulatory Debarment Committee & 2 others; Judiciary (Interested Party); Cocopan Construction Kenya Ltd (Ex parte Applicant)* [2025] KEHC 10899 (KLR).** 3. In that case, an oral hearing had been convened to determine disputed facts, but the procuring entity that initiated the complaint failed to attend and substantiate it. The Court held that the Committee could not assume the burden of prosecuting the complaint on behalf of its initiator. 4. That principle is sound, but the present circumstances are materially different. Charles Nzai filed a detailed Form DC1 identifying the relevant tenders, documents, statutory grounds and factual particulars. He attached the two notification letters issued by KAA. 5. The Committee independently sought verification from KAA. KAA confirmed the letters and the findings of its evaluation committees. The Committee therefore did not manufacture evidence or adopt the allegations without inquiry. 6. Peesam did not file a response contesting that evidence. No oral evidential hearing was consequently triggered at which Charles Nzai would have been required to substantiate disputed allegations or submit to examination. 7. The applicant’s explanation that the payrolls were genuine but mislabelled was advanced outside the prescribed process. Had it been presented through a timely response, it would have created a factual dispute requiring determination under Regulation 22(5)(e). 8. Peesam cannot rely upon a dispute it withheld from the Committee to argue retrospectively that Charles Nzai’s oral participation was indispensable. 9. I therefore distinguish *Cocopan Construction*. The Committee determined an unanswered documentary request supported by independent confirmation from KAA; it did not determine contested evidence after the complainant abandoned an oral hearing. **Allegedly unlawful procurement documents** 1. The applicant contends that Charles Nzai unlawfully acquired confidential procurement documents. It relies upon section 67 of the Act, the Access to Information Act and Article 50(4) of the Constitution. 2. Section 67 protects specified information relating to procurement proceedings and principally prohibits unauthorised disclosure by procuring entities, their employees, agents and committee members. 3. The mere possession of a document by a third party does not, without more, establish unlawful acquisition. The applicant did not identify the person who allegedly disclosed the notification letters, the circumstances of disclosure or the particular constitutional right thereby violated. 4. Its case rests upon the inference that, because Charles Nzai was not a bidder or member of KAA’s evaluation committee, his possession of the documents must necessarily have been illegal. That inference does not discharge the evidential burden. 5. More importantly, the Committee did not rely solely upon the copies attached to Form DC1. It wrote directly to KAA seeking verification. KAA, as the procuring entity and lawful custodian of the records, confirmed the documents and supplied the relevant information. 6. Disclosure by KAA to the statutory body charged with investigating and determining debarment requests cannot be equated with an unlawful disclosure to the public. The confidentiality provisions do not prevent a procuring entity from supplying material required by a legally mandated oversight body. 1. Even if the route through which Charles Nzai initially obtained the letters remained unexplained, the Committee independently obtained verification from KAA. Any defect in the provenance of the initial copies would not necessarily contaminate the independently obtained evidence. 2. Article 50(4) does not automatically exclude evidence merely because its provenance has been questioned. The applicant must prove that the evidence was obtained in violation of a constitutional right and that its admission would render the proceedings unfair or otherwise be detrimental to the administration of justice. 3. Neither requirement was established. The applicant knew the precise allegations and was afforded fourteen days within which to answer them. It has not demonstrated how reliance upon authentic documents relating to its own tender participation rendered the proceedings unfair. 4. I consequently find that the applicant did not establish that the impugned decision was founded upon unlawfully obtained or constitutionally inadmissible evidence. **Legality, rationality and proportionality** 1. The applicant contends that the payrolls were genuine documents relating to employees who had worked under earlier KAA contracts and were merely mislabelled by the employee who prepared the tenders. 2. The Court must focus upon the ground communicated in the Notice of Intended Debarment and ultimately determined by the Committee. 3. Although Form DC1 initially invoked several provisions, the notice confined the prima facie case to section 41(1)(d). The final decision similarly found that Peesam had given false information about its qualifications contrary to that provision. 4. The Committee did not purport to convict Peesam of corruption, forgery or another criminal offence. There was therefore no material departure between the notified case and the ground upon which the final determination rested. 5. The evidence before the Committee showed that Peesam submitted payroll records referring to contracts at Wajir and Ukunda during specified periods. KAA confirmed that Peesam had no such contracts during those periods. 6. That material provided a rational evidential foundation for the conclusion that Peesam supplied inaccurate or false information concerning its qualifications. 7. The innocent-error explanation was not placed before the Committee. Judicial review does not ordinarily permit a party to withhold a factual defence from the statutory decision-maker and subsequently invite the Court to determine the administrative dispute upon that new explanation. 8. Even on the applicant’s account, the payrolls, as submitted, did not accurately represent the contracts and periods stated in the tender documents. Whether the discrepancy arose from dishonesty, negligence or a clerical error was a factual matter that ought to have been raised in the written response. 9. Section 41(1)(d) does not require a prior criminal conviction. The Committee was not required to prove the offence of forgery beyond reasonable doubt before exercising its administrative debarment mandate. 10. The applicant also challenges KAA’s verification letter because it was undated and referred anomalously to the year 2019. 11. That clerical defect did not compel the conclusion that the verification was fabricated. The letter expressly responded to the Committee’s request dated 10 July 2024, identified Debarment Application No. 5 of 2024 and addressed both tenders. KAA subsequently adopted and confirmed its contents through the affidavit of its Procurement General Manager. 12. The applicant’s argument that disqualification from the individual tenders was sufficient punishment is equally unpersuasive. Disqualification under section 55(5) protects the integrity of a particular procurement process. Debarment under section 41 serves the broader regulatory purpose of protecting public procurement generally. The two statutory consequences are distinct. 13. Once the Committee approved debarment, section 41(4) and Regulation 22(5)(h) prescribed a period of not less than three years. The Committee imposed the statutory minimum. 14. The considerations set out in paragraph 18(2) of the Debarment Proceedings Manual may guide the Committee when considering whether to impose a period exceeding the minimum. They cannot authorise a period below the minimum prescribed by legislation. 15. In **Republic v Public Procurement Regulatory Authority & another; Auditor General & another (Interested Parties) [2022] KEHC 10782 (KLR),** the Court dismissed a challenge to debarment and affirmed that where the Committee lawfully exercises its power within statutory limits, the Court cannot overturn its decision merely because it might have reached a different conclusion. 16. A similar approach was adopted in **Republic v Public Procurement Regulatory Authority; Moi Teaching and Referral Hospital (Interested Party); Resh and Company Limited (Ex parte) [2022] KEHC 18078 (KLR).** 17. Further, in **Kenya Pipeline Company Limited v Hyosung Ebara Company Limited & 2 others [2012] eKLR,** the Court of Appeal cautioned that decisions of specialised procurement bodies acting within their statutory mandate should not be lightly interfered with. 18. In the present matter, the Committee acted pursuant to section 41(1)(d), independently verified the allegations, notified Peesam of the case it was required to answer, afforded it fourteen days to respond and imposed the statutory minimum period. 19. Its determination was connected to the information before it and fell within the range of legally and factually justifiable outcomes. It was neither irrational nor disproportionate. **Availability of the remedies sought** 1. In **Kenya National Examinations Council v Republic ex parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR,** the Court of Appeal explained that certiorari quashes a decision already made, prohibition restrains an unlawful contemplated or continuing act, while mandamus compels performance of a public duty that has been unlawfully neglected or refused. 1. The applicant has not demonstrated that the Committee lacked jurisdiction, disregarded a mandatory procedure, relied upon legally inadmissible material or reached an irrational decision. The prayer for certiorari must therefore fail. 2. The applicant also seeks to prohibit publication of its details and corresponding period of debarment. Publication is a statutory consequence of a valid debarment decision. Prohibition cannot restrain a public body from lawfully performing a duty imposed upon it by statute. Those prayers must similarly fail. 1. The applicant finally seeks mandamus compelling the Ethics and Anti-Corruption Commission or another investigative agency to investigate Charles Nzai. 1. The Commission was not joined as a party. No evidence was presented that the applicant lodged a complaint with it, demanded an investigation or that the Commission refused or unreasonably failed to perform a statutory duty. 2. The Court cannot compel an independent investigative agency to undertake a particular investigation without the necessary legal and evidential foundation. The alleged unlawful acquisition of the documents was, in any event, not proved. Mandamus is therefore unavailable. **Costs** 1. Costs ordinarily follow the event, subject to the Court’s discretion. Although the application has failed, it raised a legitimate public-law question concerning the relationship between a written response under Regulation 22(5)(d), the right to an oral hearing and separate judicial review proceedings instituted during an ongoing debarment process. 2. In the circumstances, the interests of justice are best served by directing each party to bear its own costs. **Disposition** 1. The Court ultimately finds that: 2. The Debarment Committee possessed jurisdiction to determine Debarment Application No. 5 of 2024; 3. Peesam Limited received adequate notice of the allegations and a reasonable opportunity to respond; 4. The filing of JR Application No. E092 of 2024 did not constitute the written response contemplated under Regulation 22(5)(d) and did not stay the debarment proceedings; 5. In the absence of a written response disputing the facts, an oral hearing and seven-day hearing notice were not triggered; 6. The Committee was properly constituted and its decision was authenticated by its Chairperson and Secretary; 7. The non-appearance of Charles Nzai did not invalidate the determination of the unanswered documentary request; 8. The allegation that the Committee relied upon unlawfully obtained evidence was not proved; 9. The impugned decision was rationally connected to the independently verified material before the Committee; 10. The three-year period was the statutory minimum; and 11. The applicant has not established grounds for certiorari, prohibition or mandamus. 12. Consequently, the Court makes the following orders: 13. The ex parte applicant’s Notice of Motion dated 4 September 2024 is hereby dismissed. 14. Any interim orders subsisting in relation to the decision of the Public Procurement Regulatory Board dated 20 August 2024 are hereby discharged. 15. Each party shall bear its own costs of the proceedings. It is so ordered**.** **Dated, Signed and Delivered Virtually at Eldoret this 31st day of July 2026.** **……………………………………** **J. CHIGITI (SC)** **JUDGE**