https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8012

Mwanga v Accounting Officer, Masinde Muliro University of Science and Technology & another; Papaton Security Services Ltd (Interested Party) (Civil Miscellaneous Application E042 of 2026) [2026] KEHC 8012 (KLR) (8 June 2026) (Ruling) Neutral citation: [2026] KEHC 8012 (KLR) Republic of Kenya In the High Court at Kakamega Civil Miscellaneous Application E042 of 2026 S Mbungi, J June 8, 2026 Between Timothy Mwanga Applicant and The Accounting Officer, Masinde Muliro University Of Science And Technology 1st Respondent Masinde Muliro University Of Science And Technology 2nd Respondent and Papaton Security Services Ltd Interested Party Ruling 1.The interested party Papaton Security Services Ltd, file a notice of motion dated 28.5.2026 seeking the following orders.i.Spent.ii.That this Honourable Court be pleased to stay the proceedings in the Public Procurement Administrative Review Board Application No. 68 of 2026 (Papaton Security Services Ltd v The Accounting Officer, Masinde Muliro University of Science & Technology and Masinde Muliro University of Science & Technology) pending the hearing of this application inter-partes.iii.That this Honourable Court be pleased to enjoin the Interested Party as a party to this matter.iv.That this Honourable Court be pleased to grant an order in terms of prayer (2) above pending the hearing and determination of this matter.v.And any other order that this Honourable Court may be pleased to make in the interest of justice.vi.That the costs of this application be in the cause. 2.The counsel for the first and second Respondent raised a preliminary objection saying that the court has no jurisdiction to stop the proceedings pending before the Public Procurement Administrative Review Board. 3.The only alternative available to the Applicant is appealing against the Judgment of the PPARB before the high court. 4.When the matter came for oral submissions this afternoon, the Respondents' counsel, Ms. Mburu conceded that rightly so the High Court has supervisory jurisdiction over subordinate courts, tribunals and any body exercising quasi judicial function like the PPARB. See Article 165 (6)(7) of the constitution. 5.Ms Mburu further argued that the only time the court can stop proceedings before an inferior body is when it is demonstrated that the body has exceeded its powers or acted irrationally, or it was biased against the aggrieved party and this has not been demonstrated in this case. 6.Mr. Mbaka in response, said that the arguments advanced by Ms. Mburu are only relevant when one is arguing a judicial review application which I do agree. To me what is required in an application to stop proceedings before inferior court is a demonstration of a plausible reason in the circumstances. 7.Mr. Mbaka the counsel of the Applicant, says that there is a real fear that the PPARB and this Court may arrive to a conflicting decision for the subject matter before this court and before the Board is awarding of tender No, MMUST/834/0010/2025-26 . 8.The pleadings before the PPARB show that the Applicant has sought for the following orders:-i.The Respondents be restrained from advancing to the next stage of the procurement process, including the execution of the contract of the subject matter, pending the resolution of this matter.ii.The respondents' notification to award dated 6th May, 2026 be cancelled and set aside.iii.The respondent's decision to award the subject tender to the Interested party be annulled and set aside.iv.The Respondents be compelled to issue a notification of intention to award in favour of the Applicant, followed by execution of a procurement contract between the Respondents and the Applicant.v.The respondents are condemned to pay costs of this Application.vi.Any other relief that this honourable board can deem fit and appropriate to grant in the interest of justice. 9.In Misc. Application No. E042 of 2026 the Applicant Timothy Mwanga is seekinga.Spent.b.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/834/0010/2025-26 (provision of security services) including the execution of the contract of the subject matter, pending the hearing and determination of this application inter-partes.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 the existing terms effect pending the hearing and determination of this Application inter-partes.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/834/0010/2025-26 is flawed and fatally defective and therefore unlawful, null and void ab initio.f.That this Honourable Court be pleased to order for a reconstitution of a new Evaluation Committee to oversee the subject tender.g.That the costs of this application be provided for. 10.It is clear that the two matters relate to the tendering and award of tender No. MMUST/834/0010/2025-26 . 11.The matter before the PPARB challenges the award of the tender to Smax Security Limited , while the matter before this court alledges violation of constitutional rights against the Applicant during the tendering and awarding of the tender, the end result of the two suits is cancellation of the award and the tender be awarded to the Applicant. 12.The Application dated 28th May, 2026 the Applicant seeks among other prayers to stop the proceedings before the PPARB. The Applicant has not enjoined the PPARB as a party in this Application, yet it is seeking adverse orders against the PPARB , the Law does not allow a Court to issue orders against a party who is not a party in a suit. 13.Therefore for this reason I find the Application defective, so prayer 2 cannot issue against the Public Procurement Administrative Review Board. 14.The High Court Jurisdiction to stop proceedings before an inferior body is always exercised sparingly but not as a matter of course, a party seeking to stop such proceedings should demonstrate a real likelyhood of miscarriage of justice which cannot be corrected by way of a review or an appeal. 15.Where both the High Court and an inferior Judicial body is sized off jurisdiction of same matter it always good jurisprudence to allow a parties litigate the issues before the inferior judicial body for this affords the parties an extra layer of litigating the issues on an appeal or review before the Higher court. 16.On the prayer that this court do order that the first and second respondent to allow the Applicant to continue providing security services to them , I find this one is not tenable for a court of law cannot order parties to contract , a court of law can only intervene when there is a breach of existing contract, to stop a breach or to enforce the terms of the contract or to order for damages in case of a breach, the Applicant has not demonstrated that there is an existing contract between themselves and the first and second respondent. 17.In a nutshell, for reasons alluded herein above, I find there is no basis for the court to stop the Public Procurement Administrative Review Board from delivering its ruling slated for tomorrow and also to order the first and the second Respondents to allow the Applicant to continue providing security services as prayed. 18.It is so ordered. 19.The other prayers can be canvassed on 25.6.2026. 20.Right of Appeal 30 days. 21.The Ruling has been uploaded in the CTS as agreed between the Court and the Counsels because of time constraints. DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 8TH DAY OF JUNE, 2026.S.N MBUNGIJUDGE