https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9501

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **PETITION NO. 542 OF 2025** **FRANCI SAWINO………………. .................................................PETITIONER** **VERSUS** **DR. JOSEPH SIROR.....................................................................RESPONDENT** **AND** **THE PUBLIC PROCURMENT** **REGULATORY AUTHORITY...............................1ST INTERESTED PARTY** **THE ETHICS AND ANTI-CORRUPTION COMMISSION ..........................................................2ND INTERESTED PARTY** **THE ATTORNEY GENERAL ................................3RD INTERESTED PARTY** **JUDGMENT** 1. By his petition dated 23/8/2025, the petitioner, Francis Awino, describes himself as a citizen of Kenya and a public spirited individual and a human rights activist committed to defending the rule of law, Constitutionalism, accountability, and transparency in governance brings the petition under ArticleS 22 and 258 of the Constitution to vindicate Public interest and to enforce the national values and principles of governance which bind all state organs, state officers and public entities. 2. The petitioners’ case is that the 1st respondent Managing Director and Chief Executive Officer of KPLC a public entity responsible for electricity distribution and management of critical National infrastructure is bound by the Constitution and the public procurement and assets disposal Act in all its operations. 3. The petitioner accuses the 1st respondent of having applied and adopted a procurement process that was opaque, unpredictable and unlawful mode of award in respect of categories 2 and 3 of tender No. KP1/92. 3/RT/14 /24-25 for supply of single phase smart meters under categories reserved for local manufactures and assemblers. 4. That the failure above led to a challenge before the PPARB vide application No. 85/2025 which Review Board found the Respondent’s mode of award to have lacked transparency, was inconsistent, did not assure the lowest evaluated tender of award and that therefore contravened Section 86 of the PPAD Act as well as Article 227 of the Constitution. 5. The Petitioner relies on the decision of the Review Board which led to cancellation of all the awards and the setting aside of the award under category 1 lot 1 and a directive issued cancelling the entire procurement for categories 1 to 3 to be re-tendered afresh. 6. The respondent is accused of presiding over the issuance of notification of intention to award dated 17th July 2025 which award the Board determined that it was in violation of Section 87(3) of the PPDA because they failed to disclose the essential lot specific details including unit prices for each lot and reasons for non- selection, thereby frustrating bidders’ rights to fair administrative action. 7. Further, that there was no due diligence under the respondent’s leadership and the cumulative effect being that these irregularities amounted to unlawful, lack of integrity undermined transparently and fairness and jeopardized the principles of accountability and value for money in public procurement especially that of smart meters which is a critical undertaking with direct implications on electricity distribution, revenue protection and safeguarding the national infrastructure, which actions had the potential to course grave prejudice to the public interest, loss of public funds and distortion of competition. 8. Consequently, the petitioner claims that constitutional and statutory provisions were violated and that the court should grant the following reliefs: 9. ***A declaration that the respondent, in presiding over and implementing the unlawful procurement process under Tender No. KP1/9A.3/RT/14/24-25 violated Articles 10, 47, 73, 75 210, 227 and 232 of the Constitution.*** 10. ***A declaration that the Respondent’s adoption of an unlawful “mode of award” and the issuance of non-complaint notification letters were unconstitutional, null and void.*** 11. ***A declaration that the respondent is unfit to hold public office by reason of gross violation of the Constitution and of Chapter six on leadership and integrity.*** 12. ***An order compelling the 1st interested part to undertake an immediate regulatory investigation into the procurement practices at KPLC and to report to this Honourable Court within a prescribed timeframe.*** 13. ***An order compelling the 2nd interested party to commence investigations into the respondent’s conduct and to take appropriate action including prosecution or recovery proceedings where warranted.*** 14. ***An order directing the 3rd interested party to advise the Government on immediate remedial action to safeguard public funds and to report to Parliament on measures taken to prevent recurrence.*** 15. ***An order of mandamus compelling KPLC to design and implement transparent, accountable, and lawful procurement frameworks in compliance with the Constitution and the PPADA*** 16. ***An order directing the respondent personally to bear responsibility for costs occasioned by the unlawful cancellation and re-tendering of the procurement, including surcharges or restitution of wasted public resources.*** 17. ***A permanent injunction restraining the Respondent from presiding over or participating in any further procurement process at KPLC until full compliance with the Constitution and procurement law is demonstrated.*** 18. ***Such further, other, or consequential orders as this Honourable Court shall deem just and appropriate in the circumstances.*** 19. ***Costs of this petition be provided for.*** 20. The respondents and interested parties filed grounds of opposition and replying affidavits opposing the petition, whose contents are similar in that, they all contend that the petition is deficient of the threshold of a Constitutional Petition as espoused in the **Anarita Karimi Njeru Vs Republic [1979] JLR 154** decision; that the petition does not disclose any cause of action against the interested parties, is frivolous, vexatious, incompetent and improperly before this court and an abuse of the court process, that the decision of the PPARB dated 19/8/2025, the basis of this petition was extinguished by J. Chigit, SC. in a judgment rendered on 9/10/2025; that while the 2nd interested party received a complaint concerning the tender in question and it was still investigating the same, the petitioner filed the petition herein which is premature and an abuse of court process. 21. Parties also filed written submissions which this Court has considered and which submissions mirror the parties’ respective positions as pleaded and as per the depositions in the filed affidavits. **Determination** 1. I have considered the petition and the responses thereto as submitted on by the parties and the issue for determination is whether the petition is merited. 2. From the onset, it is not in dispute that the decision of the PPARB in application No. 85/2025 was challenged to the High Court vide Judicial Review proceedings and vide a judgment rendered on 9/10/2025 by Justice Chigiti, SC in JR application Nos. E262, 264 and 271 of 2025 **Smart Meter Technology Limited & 2 others v Public Procurement and Administrative Review Board & 3 others; Magnate Ventures Limited & 3 others (Interested Parties) (Judicial Review E262, E264 & E271 of 2025 (Consolidated)) [2025] KEHC 14559 (KLR) (Judicial Review) (9 October 2025) (Judgment)**, consolidated, from which an appeal was lodged to the Court of Appeal vide CA E 870/2025 **Inhemeter Africa Company Limited v Public Procurement Administrative Review Board & 3 others (Civil Appeal E870 of 2025) [2025] KECA 2023 (KLR) (28 November 2025) (Judgment)** and in a Judgment rendered on 28/11/2025, the Court of Appeal found the Appeal moot and was dismissed with costs to the 2nd, 3rd and 4th Respondents. 3. The Court of Appeal observed that the decision of the Judge, Chigit SC vacating the decision of the Review Board and remitting the matter back to the Board, and the Board had completed the rehearing of the matter, resulting in another decision which was also challenged before the High Court and was still pending such that any pronouncement on the propriety of the remission would be purely academic and incapable of yielding any practical effect. 4. It is also still fresh in the mind of this court that the remitted proceedings, after rehearing, a challenge was filed vide **JR E347/2025 and E144/2025** **Hexing Technology Company Limited v Public Procurement Administrative Review Board & 2 others; Chint Meters & Electric Kenya Company Limited & 6 others (Interested Parties) [2025] KEHC 15794 (KLR)** consolidated, and in a judgment rendered by the Court on 19/12/2025, the Court quashed the second decision of the Review Board of 23/10/2025, which decision had been rendered after a rehearing of Review Application No. 85/2025 and the Court also prohibited the re-advertising/retendering of the tender in question as had been ordered by the review Board and lawfully issued mandamus compelling the procuring entity to execute procurement contracts with **Hexing Technology Co. Ltd and Magnate Ventures Ltd in respect of category 2 lot 2 and category 2 lot 3** all ***“in accordance with the original evaluation and award process prior to the Review Board’s ultra vires decision.”*** 5. With the above judicial pronouncements which rendered the challenge to the procurement process undertaken by the procuring entity under the leadership of the Respondent herein as the accounting officer, a nullity, need this Court delve into the alleged constitutional and or statutory violations on the part of the Respondent? 6. The answer is no, as that venture would be nothing but the court being asked to venture into an academic exercise, a waste of precious judicial time and resources. Whereas the petitioner may have acted in good faith in attempting to protect public resources, but he prematurely assumed that the Respondent was to blame for the alleged irregularities. The Petitioner did not wait until due process was accomplished. The Respondent was vindicated by the way decisions of the Courts of competent jurisdiction were made, finding that the procurement process was without any irregularities and quashed the decisions of the Review Board. 7. In the end, this Court finds that the petitioner was overzealous about the Public Procurement process undertaken by Kenya Power and Lighting Company where the Respondent was the accounting officer. The petitioner prematurely brought this petition challenging the integrity of the process yet the parties involved in the procurement process were pursuing lawful channels for adjudication of their grievances. 8. I find that the petition is devoid of merit and therefore the petitioner is not entitled to any of the reliefs sought. The petition dated 23/8/2025 is hereby dismissed. 9. As the petition was brought in the public interest, I order that each party bear their own costs of the dismissed petition. 10. This file is closed. **Dated, Signed and Delivered virtually at Nairobi this 1st Day of July, 2026** **R.E. ABURILI** **JUDGE**