https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7604

Mwanga v Accounting Officer, Masinde Muliro University of Science and Technology & another (Miscellaneous Application E042 of 2026) [2026] KEHC 7604 (KLR) (21 May 2026) (Ruling) Neutral citation: [2026] KEHC 7604 (KLR) Republic of Kenya In the High Court at Kakamega Miscellaneous Application E042 of 2026 S Mbungi, J May 21, 2026 Between Timothy Mwanga Applicant and The Accounting Officer, Masinde Muliro University of Science and Technology 1st Respondent Masinde Muliro Universoty of Science and Technology 2nd Respondent Ruling 1.The Applicant, Timothy Mwanga moved this court under a Notice of Motion application dated 7th May 2026 seeking the following;a.That this application be certified as urgentb.That this Honourable Court be pleased to restrain the 1st and 2nd Respondents from advancing to the next stage of the procurement process over tender number MMUST/834/0020/2025-26 (provision of security services) including the execution of the contract of the subject matter, pending the hearing and determination of this application inter-parties.c.That this Honourable court be pleased to order for status quo in allowing papaton security services limited to continue providing security services to the Respondents as per existing terms effect pending the hearing and determination of this application inter parties.d.That this Honourable Court be pleased to issue a declaration that the Respondents violated and/or neglected to promote principles good governance, integrity, transparency and accountability.e.That this Honourable Court be pleased to declare that the ongoing procurement process over tender number MMUST/834/00100/2025-26 is flawed and fatality defective and therefore, null and void ab initiof.That this Honourable court be pleased to order for a reconstitution of a new Evaluation Committee to oversee the subject tenderg.That the costs of this application be provided for. 2.The application is supported by the affidavit of the Applicant sworn on the same day where he deponed that on 5th May 2026, he visited the 1st Respondents’ office situated within Masinde Muliro University of Science & Technology (main campus) when he overheard the officers plotting against bidders who went before the public procurement administrative Review board over the security tender. 3.He stated that on 23rd December 2025, the Respondents had advertised tender number MMUST/834/00100/2025-26 for provision of security services for a period of one year and the tender was to close on 14th January 2026. 4.He claimed that the tender was advertised on the Electronic Government Procurement on 2nd January 2026 to close on 13th January 2026 and that all the interested bidders completed their tender process by submitting all the required documentation. 5.He stated that on 25th March 2026, the Respondents awarded the tender to Smax security Limited and purportedly and issued the other parties with notification of regret on 9th March 2026. 6.He avers that on 27th March 2026, one of the bidders Papaton Security service ltd being aggrieved with the procurement process filed a review application before the Public Procurement Administrative review board stating that there was a violation under Article 47 (1) and 227 (1) of the constitution of Kenya, 2010; section 79 (1) of the Public Procurement and Asset Disposal Act, 2015. 7.He accused the respondent of failure to conduct the process in a fair and equitable manner and states that the same was the finding by the review board stating that the notification of intention to award did not comply with the law and proceed to set aside and nullify the process. 8.The respondents were directed to reconvene the evaluation committee and admit papaton security services at the preliminary Evaluation stage and re- evaluate the tender from the stage in accordance with the constitution, the Act, the tender document, taking into account the finding and directions of the board. 9.He stated that currently the Respondents' security service are being provided by Papaton Security service Limited and dismissed the orders of the review board, the constitution and the process of good governance, integrity, transparency and accountability. 10.According to the applicant, the procurement process is being invoked to settle scores and to humiliate the bidders and that they were not awarded a fair hearing. 11.The respondents raised a preliminary objection, saying that this court lacked jurisdiction for the parties should have invoked the jurisdiction of Public Procurement Administrative Review Board. 12.The court directed that the application be canvassed by way of written submissions. Applicants Submissions 13.The Applicant filed his submission date 20th April 2026 where he opposed the Respondents’ preliminary objection and submitted that the objection was improperly before the court because it had neither been formally pleaded nor filed as required by law. Counsel argued that a valid preliminary objection must arise from the pleadings and relied on the decision in Ndonye & Another v Koimburi & Another (Tribunal Case E998 of 2024) [2025], which reaffirmed the principles in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 that a preliminary objection must be properly pleaded before it can be determined by a court. The Applicant therefore contended that the objection was fatally defective and ought to be dismissed at the outset. 14.The Applicant submitted that he was not a candidate or tenderer in the procurement process relating to Tender No. MMUST/834/0010/2025-26 for the provision of security services, but was instead acting in the public interest to ensure compliance with the law and constitutional principles governing public procurement. He was argued that under section 167(1) of the Public Procurement and Asset Disposal Act, only a candidate or tenderer who has suffered or is likely to suffer loss or damage may seek review before the Public Procurement Administrative Review Board (PPARB). Consequently, the Applicant lacked the requisite standing to invoke the jurisdiction of the Review Board. 15.In support of that position, the Applicant relied on Republic v Independent Electoral and Boundaries Commission (IEBC); Al Ghurair Printing and Publishing LLC & 5 Others; National Super Alliance (NASA) Kenya (Ex Parte) [2017] KEHC 4663 (KLR), where the High Court held that persons who do not fall within the statutory definitions of “candidate” or “tenderer” cannot access the review mechanism before the PPARB. Counsel submitted that the Applicant was therefore excluded from the statutory dispute-resolution process and could not be faulted for failing to exhaust a remedy that was unavailable to him. 16.The Applicant further argued that section 174 of the Public Procurement and Asset Disposal Act preserves other legal remedies available to a person notwithstanding the review mechanism established under the Act. Counsel submitted that where the statutory remedy is inaccessible or illusory, an aggrieved party may resort to alternative legal avenues, including judicial review proceedings and constitutional litigation. Reliance was again placed on the IEBC decision, where the court held that individuals excluded from the review process are entitled to seek redress through other lawful procedures. 17.The Applicant also submitted that his claim raised allegations of constitutional violations arising from the procurement process and that the High Court possesses original jurisdiction to determine such questions. Reference was made to Article 22 of the Constitution, which requires procedural formalities in constitutional litigation to be kept to a minimum and permits the court to entertain proceedings commenced through informal documentation where fundamental rights and freedoms are alleged to have been violated, infringed, denied, or threatened. 18.Counsel further cited Rule 10(3) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (the Mutunga Rules), arguing that the court is empowered to entertain proceedings brought through informal documentation where constitutional grievances are disclosed. According to the Applicant, the constitutional framework was designed to ensure access to justice and to prevent procedural technicalities from obstructing the enforcement of constitutional rights. 19.It was therefore submitted that the Applicant was entitled to approach the High Court directly to challenge the legality, fairness, transparency and constitutionality of the procurement process. Counsel maintained that since no effective remedy was available before the PPARB, the present proceedings were properly before the court and fell within the High Court’s constitutional mandate to interpret and enforce the Constitution. 20.In conclusion, the Applicant urged the court to find that the Respondents’ preliminary objection was incompetent, misconceived and devoid of merit. He prayed that the objection be dismissed with costs and that the court proceeds to determine the substantive application on its merits. Respondent Submissions 21.They submitted that the dispute concerns Public Procurement matters which fall within the jurisdiction of the Public Procurement Administrative Review Board (PPARB) established under the Public Procurement and Asset Disposal Act, 2015 (PPADA). 22.Counsel submitted that Sections 27 and 28 of the PPADA establish the Public Procurement Administrative Review Board and confer upon it the mandate to review, hear and determine tendering and asset disposal disputes. 23.The Respondents further submitted that the Public Procurement Regulatory Authority (PPRA), established under Section 8 of the Act, is vested with investigative powers under Sections 9(h) and 35 of the PPADA to investigate complaints arising from procurement and disposal proceedings. Such investigations may be commenced either suo motu or upon complaint by any person or public institution. 24.They cited Section 40 of the Act which bars investigations or orders where the Review Board is seized of or has already reviewed the matter. 25.The Respondents argued that Section 167(1) of the PPADA provides an elaborate statutory dispute resolution mechanism through which any candidate or tenderer who claims to have suffered loss or damage arising from breach of the Act may seek administrative review before the Review Board within fourteen days of the alleged breach. 26.They further submitted that the Applicant ought first to have exhausted the dispute resolution mechanisms provided under the PPADA before approaching this Court. Counsel maintained that the issues raised are technical procurement matters best suited for determination by the PPRA and the PPARB as specialized statutory bodies 27.The Respondents relied on the decision in Dickson Ngigi Ngugi v Commissioner of Lands saying that jurisdiction is fundamental and without it a court’s proceedings and decision are a nullity. 28.Accordingly, the Respondents urged the Court to uphold the preliminary objection and decline jurisdiction over the matter Analysis and determination 29.I have considered the submissions by the parties. 30.Article 165 of the Constitution confers upon the High Court broad supervisory and constitutional jurisdiction courts have consistently held that where parliament has provided a clear statutory mechanism, that mechanism ought to be exhausted first unless exceptional circumstances exist. 31.In Owners of the Motor Vessel ‘’Lilian S’’ V Caltex Oil (kenya) Ltd (1989) KLR 1 , the court of Appeal held that jurisdiction is everything and that a court must down its tools the moment it finds it has none. The some principle was reiterated in Mukisa Biscuit Manufacturing Co. Ltd V West End Distributors Ltd EA 696, where the court explained that a pure point of law, such as jurisdiction, may properly be raised by preliminary objection. 32.The Applicant submitted that the preliminary objection was improperly placed before the court for it was not pleaded. I agree a preliminary objection should be traced from a pleading; in this case the respondent had not filed any response. The Preliminary objection was raised orally. This court found it prudent to have the issue of Jurisdiction settled first, the counsels concurred. By calling for the submissions to dispose off the issue, this did not dispose off the place of the settled law that a preliminary objection should be pleaded. 33.I have read section 167 (1) of the Public Procurement & Asset Disposal Act 2015 , it provides as follows:-‘’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 impose on a procuring entity by this Act of 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 my be prescribed’’ 34.The Applicant herein described himself as a person acting in the public interest to ensure that there is fairness and rule of law in the procurement process over the tender in this matter, to wit tender number MMUST/834/0010/2025-26 (Provision of security services). 35.It is thus clear he was not a tenderer or bidder to the subject tender. 36.Section 167 (1) of the public procurement and Asset Disposal Act (PPADA). 2015 provides that only a ‘’candidate’’ or ‘’tenderer’’ who has suffered or risks suffering loss or damage’’ due to a breach of duty by a procuring entity can fire a request for review before the Public Procurement Administrative review Board. 37.This legal position was reiterated in the case of Republic Vs Independent Electoral and Boundaries Commission (IEBC); AI Ghurair Printing and Publishing LLC & 5 others and The National Super Alliance (NASA) Kenya (Ex parte Applicant) (Judicial Review 378 of 2017) [2017] КЕНС 4663 (KLR) where a three (3) High Court judge bench (Hon Justices Joel Ngugi, G.V Odunga and John M. Mativo) held at paragraph 51 as follows:-“Firstly, section 167(1) of the PPAD Act provides that the persons who may seek administrative review are 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. Section 2 of PPAD Act defines a "candidate" as meaning "a person who has obtained the tender documents from a public entity pursuant to an invitation notice by a procuring entity" while a "tenderer" is defined by the same a section as meaning "a person who submitted a tender pursuant to an invitation by a public entity". As the subject of this application was a direct procurement, clearly the Applicant did not fit the definition of either a “candidate" or a "tenderer" and therefore could not seek administrative review. It follows that the alternative remedy of making a request for review was unavailable to the Applicant in this case." 38.Section 174 of the said Act states as follows:-“The right to request a review under this Part is in addition to any other legal remedy a person may have." 39.To me this means even if the Applicant was not a tenderer or a candidate he has a remedy outside Section 167, he can approach the High Court as he has done in this matter if his complain is anchored on violation of the articles of the constitution. 40.In the case of Republic Vs Independent Electoral and Boundaries Commission (IEBC) (supra) where the court held at paragraphs 52 and 53 that:-“ 52.We agree with the decision in Misc. Application No. 637 of 2016- Republic vs. Independent Electoral and Boundaries Commission and Others ex parte Coalition for Reform and Democracy that where a remedy provided under the Act is made illusory with the result that it is practically a mirage, the Court will not shirk from its Constitutional mandate to ensure that the provisions of Article 50(1) are attained with respect to ensuring that a person's right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body is achieved. We are therefore of the view that the alternative remedy provided under the PPAD Act would be a mirage in so far as the Applicant is concerned. In those circumstances the provisions of section 174 of the PPAD Act comes into play. The said provision provides that the right to request a review under the Act is in addition to any other legal remedy a person may have. 53.It follows that a person who is not competent to request for review, has an avenue of other legal remedies including an application for judicial review and constitutional petition. In our view a person who would otherwise be locked out from invoking the provisions of the PPAD Act is not barred from seeking alternative remedy under other provisions of the law. Indeed, this was the position adopted by this Court in Elias Mwangi Mugwe vs. Public Procurement Administrative Review Board & 5 Others [2016] eKLR where the Court explicitly expressed itself thus: .any person who has no automatic right to participate in the review " proceedings may properly resort to other available modes of ventilating his rights." 54.Therefore, looking at our case law on the doctrine of exhaustion, the statutory schema provided under the PPAD Act and especially the wordings on which parties have a right to file a review application thereunder; the public interest involved and the polycentricity of the issues involved in this case, we find that the suit is properly filed before the Court. 41.Further the court held at paragraph 49 that:-"Additionally, this Court, in Misc App No. 637 of 2016 while upholding the position adopted by the Review Board, held that a person who feels that a public procurement does not meet the constitutional threshold of fairness, equity, transparency, competitiveness and cost-effectiveness under Article 227 of the Constitution, and who has no other recourse known to law, (as the IEBC concedes the Applicant does not have), must in our view find recourse in the High Court which is the Court entrusted under Article 165(2)(d) with the mandate of hearing any question respecting the interpretation of the Constitution including the determination of the question whether anything said to be done under the authority of the Constitution or of any law is inconsistent with, or in contravention of, the Constitution. In our view, to bar a person from carrying out his constitutional obligation and mandate of upholding and defending the Constitution would amount to abdication by this Court of one of its core mandate under Article 165(2)(d) of the Constitution. 42.On the issue of the Applicant approaching the court via Misc. Application I say this was not fatal for Article 22(3) of the Constitution has granted the Chief Justice to come up with rules to guide a constitutional court such as the one herein when it comes to the proceedings like the one at hand. The said Article under 22(3) (b) and (d) the Chief Justice has been empowered to make rules providing for the court proceedings referred to in this article and which shall satisfy the criteria that:(b)"Formalities relating to the proceedings, including commencement of proceedings, are kept to the minimum, and in particular that the court shall, if necessary entertain proceedings on the basis of informal documentation ... (d) the court, while observing the rules of natural justice, shall not be unreasonably restricted by procedural technicalities." 42.The Hon Chief Justice enacted The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 loosely referred to as Mutunga Rules: 43.Rule 10 (3) of the said Rules stipulates that:“Subject to rules 9 and 10, the court may accept an oral application, a letter or any other informal documentation which discloses, denial. violation, infringement or threat to a right or fundamental freedom." 42.From the above analysis, I find that this court has requisite Jurisdiction to maintain the issues raised in the Application and that the Applicant was not wrong to approach the court through the Miscellaneous Application. Therefore the preliminary objection is dismissed with no orders as to costs. 43.Right of Appeal within 30 days explained. DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 21ST DAY OF MAY, 2026.S.N MBUNGIJUDGEIn the presence of:-CA: Zilda/VelmaMr. Mbaka for the Applicant present online.Ms Mburu for the Respondents present in court.