[2024] KEHC 10155 (KLR)

[2024] KEHC 10155 (KLR)

The court found that while the doctrine of exhaustion generally requires parties to pursue statutory remedies before seeking judicial intervention, there are exceptions where such remedies are unavailable due to the conduct of the procuring entity, such as failure to notify unsuccessful bidders, thereby frustrating access to administrative review. The petitioners demonstrated that they were kept in the dark regarding the tender award and only became aware after the statutory review period had lapsed, making administrative recourse impossible. The court held that this constituted an exceptional circumstance justifying the High Court's intervention to enforce constitutional rights under...

Citation
[2024] KEHC 10155 (KLR)
Parties
Applicant: Samaan Investments Limited; Applicant: Tusbah Construction Company Limited; Applicant: Afrotrick Holdings Limited; Applicant: Newlook Construction Company Limited; Respondent: National Project Coordinator, National Project Implementation Unit Kenya Development Response To Displacement Impacts Project (KDRDIP); Respondent: County Project Coordinator County Integrated Project Implementation Unit (CIPIU) Kenya Development Response To Displacement Impacts Project (KDRDIP); Respondent: County Executive Committee Member Health Service Wajir County; Respondent: Abakore Health Centre Project Management Committee; Respondent: County Government Of Wajir; Respondent: Hared Sirat; Respondent: Sirat Ali; Respondent: Mohamed Ahmed; Respondent: Mohamud Salat Osman; Respondent: Affey Salat; Respondent: The Public Procurement Regulatory Authority; Respondent: Ministry of East Africa Community Asals And Regional Development; Respondent: Office Of The Attorney General; Respondent: Ministry of Transport, Infrastructure, Housing, Urban Development And Public Works
Court
High Court
Court Station
High Court at Garissa
Jurisdiction
Kenya
Judgment Date
15 August 2024
Case Number
Constitutional Petition E013 of 2024
Procedural Posture
Constitutional Petition / Ruling on Preliminary Objection and Interim Application
Outcome
Preliminary objection dismissed; interim orders granted pending inter partes hearing.
Judges
JN Onyiego
Legal Topics
Public Procurement, Judicial Review, Constitutional Rights Enforcement, Doctrine of Exhaustion, Tender Award Notification
Source Language
English
Administrative Law Commercial and Corporate Public Procurement Judicial Review Constitutional Rights Enforcement Doctrine of Exhaustion Tender Award Notification

Case Brief

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Parties

Samaan Investments Limited

Applicant

Tusbah Construction Company Limited

Applicant

Afrotrick Holdings Limited

Applicant

Newlook Construction Company Limited

Applicant

National Project Coordinator, National Project Implementation Unit Kenya Development Response To Displacement Impacts Project (KDRDIP)

Respondent

County Project Coordinator County Integrated Project Implementation Unit (CIPIU) Kenya Development Response To Displacement Impacts Project (KDRDIP)

Respondent

County Executive Committee Member Health Service Wajir County

Respondent

Abakore Health Centre Project Management Committee

Respondent

County Government Of Wajir

Respondent

Hared Sirat

Respondent

Sirat Ali

Respondent

Mohamed Ahmed

Respondent

Mohamud Salat Osman

Respondent

Affey Salat

Respondent

The Public Procurement Regulatory Authority

Respondent

Ministry of East Africa Community Asals And Regional Development

Respondent

Office Of The Attorney General

Respondent

Ministry of Transport, Infrastructure, Housing, Urban Development And Public Works

Respondent

Procedural Posture

Constitutional Petition / Ruling on Preliminary Objection and Interim Application

Legal Issues

  1. 1 Whether the High Court has jurisdiction to hear the petition despite the doctrine of exhaustion of statutory remedies.
  2. 2 Whether the petition raises constitutional issues warranting the court's intervention.
  3. 3 Whether the petitioners were denied fair administrative action and notification in the procurement process.

Ratio Decidendi

The court found that while the doctrine of exhaustion generally requires parties to pursue statutory remedies before seeking judicial intervention, there are exceptions where such remedies are unavailable due to the conduct of the procuring entity, such as failure to notify unsuccessful bidders, thereby frustrating access to administrative review. The petitioners demonstrated that they were kept in the dark regarding the tender award and only became aware after the statutory review period had lapsed, making administrative recourse impossible. The court held that this constituted an exceptional circumstance justifying the High Court's intervention to enforce constitutional rights under...

Court Disposition

Preliminary objection dismissed; interim orders granted pending inter partes hearing.

Orders

  • Preliminary objection by the 1st, 12th, and 13th respondents is dismissed.
  • Application dated 19th July 2024 is allowed in the interim in terms of prayer B pending hearing inter partes.