Wanyonyi v County Government of Bungoma (Constitutional Petition E005 of 2026) [2026] KEHC 9276 (KLR) (25 June 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BUNGOMA** **CONSTITUTIONAL PETITION NO. E005 OF 2026** **IN THE MATTER OF ARTICLES 1, 2, 3, 6(3), 10, 75, 76, 201, 225, 226, 227 AND 232 OF THE CONSTITUTION OF KENYA, 2010** **AND** **IN THE MATTER OF ARTICLE 35 OF THE CONSTITUTION OF KENYA, 2010 (RIGHT OF ACCESS TO INFORMATION)** **AND** **IN THE MATTER OF THE ACCESS TO INFORMATION ACT, 2016** **AND** **IN THE MATTER OF BREACH AND TRANSGRESSION OF CHAPTER VI OF THE CONSTITUTION OF KENYA, 2010** **AND** **IN THE MATTER OF BREACH OF THE PROVISIONS OF THE PUBLIC FINANCE MANAGEMENT ACT, 2012** **AND** **IN THE MATTER OF THE PUBLIC PROCUREMENT AND ASSET DISPOSAL ACT, 2015** **AND** **IN THE MATTER OF THE PUBLIC OFFICERS ETHICS ACT, 2003** **AND** **IN THE MATTER OF THE ANTI-CORRUPTION AND ECONOMIC CRIMES ACT, 2003** **AND** **IN THE MATTER OF THE COUNTY GOVERNMENTS ACT, 2012** **AND** **IN THE MATTER OF THE LEADERSHIP AND INTEGRITY ACT, 2012** **BETWEEN** **JESSE WANYONYI ...................................................................PETITIONER** **VERSUS** **THE COUNTY GOVERNMENT OF BUNGOMA ..............RESPONDENT** **RULING** 1. The Petitioner **Jesse Wanyonyi** filed a Notice of Motion dated 25th February 2026 concomitantly with a Petition of even date. In the said Petition and Application, the petitioner has sued the following entities as the 1st - 5th Respondents respectively; i) County Executive Committee Member –Roads Infrastructure and Public Works, ii) The Chief Officer Roads, Infrastructure and Public Works, iii) County Executive Committee Member – Finance, iv) Chief Officer - Finance, Bungoma County, v) The Governor, Bungoma County 2. Further, the following entities have been sued in the same said Petition and Application as the 1st - 6th Interested parties respectively; i) Before Seven Consulting Limited, ii) Khatiri Enterprises Limited, iii) Experts General Merchants Limited, iv) Framepack Company Limited, v) Cebrandi Enterprises Limited and vi) Nambaya Natela Limited. 3. The Applicant is stated to be brought under the provisions of **Articles 1, 2, 3, 6(3), 10, 35, 75, 76, 201, 225, 226, 227 and 232 of the Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act, the Access to Information Act 2016, the Public Finance Management Act 2012, the Public Procurement and Asset Disposal Act 2015** and the Petitioner/Applicant seeks the following orders; 4. **Spent.** 5. **a temporary injunction pending the hearing and determination of the application restraining the Respondents jointly and severally from implementing the framework contracts for financial year 2025/2026 and from processing and/or making any payments in respect of the Kshs. 535,275,827/= framework contracts to the Interested Parties** 6. **a temporary injunction pending the hearing and determination of the petition restraining the Respondents jointly and severally from implementing the framework contracts for financial year 2025/2026 and from processing and/or making any payments in respect of the Kshs. 535,275,827/= framework contracts to the Interested Parties** 7. **THAT upon the hearing and determination of the instant application, the Respondents be directed and/or ordered to supply and/or avail to the Petitioner herein, the following information, data and/or documents for all the wards in Bungoma County:** 8. **I. Framework Contracts:** **a. The dates when the framework contracts under the 1st & 2nd Respondents departments were renewed or extended for the current period 2025/2026;** **b. The approval authority for such renewal or extension, including minutes or resolutions where applicable;** **c. The relevant procurement reference numbers and tender identification details; and** **d. Confirmation that such renewals complied with the Public Procurement and Asset Disposal Act and Regulations.** **II. Ward-Based Projects – Financial Year 2025/2026** **a. The date when the budget for ward-based projects for FY 2025/2026 was approved by the County Assembly;** **b. The date when the approved budget was uploaded into IFMIS; and** **c. The date when the funds became available for commitment and expenditure.** **III. Completion of Procurement Process and Commencement of Works** **a. Whether any contractors were authorized to commence works prior to completion of the legally prescribed procurement procedures;** **b. The name(s), designation(s), and authority of the officer(s) who granted such authorization; and** **c. The legal and administrative basis relied upon in permitting such commencement, if any;** 1. **THAT pending the hearing and determination of the application and/or petition, an order do issue directing the Respondents to avail, supply and/or give information to the Petitioner in respect to the amounts so far paid to each contractor and/or the Interested Parties herein, undertaking the road works as per the framework contracts for the financial year 2025/2026;** 2. **Costs of the application.** 3. The Application is premised on the Affidavit of the said Petitioner/Applicant sworn on **25th February 2026** wherein he avers that, on or about 11th February 2026, he requested information from the Respondents regarding framework contracts and road construction tenders for Bungoma County, worth Kshs. 535,275,827/=, which he contends were illegally and un-procedurally awarded and, in some instances, commenced or even paid for before the completion of the procurement process and/or the approval of a supplementary budget. 4. The Applicant asserts that the framework contracts for the financial year 2025/2026 were intended to be approved via a supplementary budget but before the same was passed by the County Assembly, the Respondents awarded tenders for opening, grading, graveling and maintenance of roads to the six named Interested Party companies across various wards, some of which projects have been completed, are ongoing or have been paid for. 5. He therefore seeks disclosure of the dates of renewal of framework contracts, approval authorities, procurement references, budget approval and upload dates, commencement of works, authorizing officers and legal basis for early commencement, and the amounts so far paid to each contractor. 6. He further deposes that his request is anchored on **Article 1, 10,19(1), 21(1) and 35(1) of the Constitution and Sections 4 and 9 of the Access to Information Act** and that the Respondents’ failure to respond within the statutory period of 21 days violates **Articles 10, 35** and related provisions of the **Constitution**, as well as the **Fair Administration Act of 2015, Public Finance Management Act, the Public Procurement and Asset Disposal Act, the County Governments Act, the Leadership and Integrity Act and the Public Officers Ethics Act.** 7. He contends that the impugned conduct amounts to a breach of Chapter Six of the Constitution, an abuse of office, a misappropriation of public funds, and a violation of the principles of transparency, accountability, and public participation. On 25th Feruary 2026, Honourable Lady Justice Shariff certified the application as urgent and granted interim orders of injunction restraining the Respondents from implementing the framework contracts for financial year 2025/2026 and from processing and making any payments in respect of the Kshs. 535,275,827/= framework contracts to the Interested Parties, pending inter parties hearing. **Respondent’s Response** 1. The Respondents in response to the Notice of Motion and Petition filed a Notice of Preliminary Objection dated 30th April 2024 on grounds; 1. **That the Respondents are improperly joined as they are not legal entities capable of being sued in their personal capacities.** 2. **That the suit is incompetent, frivolous, vexatious and fatally defective for violation of mandatory statutory provisions; and that they have been brought in bad faith and solely to vex the Respondents.** 3. **That the Petition and Application should be struck out**. 4. On 14th May 2026 when the matter came up for directions on the mode of disposal of the Application, a preliminary issue which is the subject of this Ruling arose. Counsel for the Respondents indicated that they had not yet filed their Replying Affidavit and that the same had been delayed due to logistical challenges which she gave as follows; 5. That the Counsel to whom the matter had been marked for action fell ill and the file was marked to the Counsel now present in court late in the day and so the process of getting instructions from the various offices which is time consuming and slow delayed but nonetheless, the same was now ready for filing. That this notwithstanding, they had filed a Notice of Preliminary Objection which they were ready to argue. 6. Counsel for the Petitioner on his part stated that upon his perusal of the Notice of Preliminary Objection that was served upon them, the deemed it necessary to amend their Petition. That in light of the fact that the pleadings were still open, they were free to do so without the leave of the court. 7. That in this regard, they filed an amended Petition on the day before this mention date, and served the Respondents in the morning of the hearing. The court having perused the said amendment dated 13th May 2026, observed that the Petitioner had now removed all the 1st- 5th Respondents as well as the 1st - 6th Interested Parties and substituted them with the County Government of Bungoma as the only Respondent. 8. It was therefore the Petitioner’s Counsel’s submission that the court proceeds to give directions on the main Petition as amended and that the Respondents who had not yet filed a Replying Affidavit to the Notice of Motion proceed to file their Response to the Petition instead. Counsel for the Petitioner further stated that if Counsel for the Respondent was of the view that their Preliminary Objection proceeds, then the court should take note of the fact that the Respondents had not filed a Replying Affidavit in response to the facts raised in the Petition and that with this being the case, it was their position that the issues raised in the Preliminary Objection can be canvassed together with the Petition 9. Counsel for the Respondent objected to the proposal by Counsel for the Petitioner on the directions that he seeks that the court gives as herein summarised. She also objected the to the draft amended Petition filed. She stated that the Petitioner’s Application was filed under Certificate of Urgency and interim orders were granted in their favour, which orders they are currently enjoying as against the purported Respondents. 10. Further, that the Petitioner is now seeking to amend the Petition on the basis of the Objection to the Petition as raised by the Respondents in their Notice of Preliminary Objection. That by dint of the act of dropping all the initial Respondents and bringing in the County Government of Bungoma as the only Respondent, then a new party has been introduced to the Petition. 11. Counsel therefore urged the court to reject the Applicant’s amended Petition not only on account of the introduction of a new party to the Petition, but also because the issues raised by the Respondents in their Notice of Preliminary Objection cannot be cured by way of an amendment. 12. That in actual fact, by dint of the fact that the Petitioner has gone ahead and amended their Petition in line with the objections raised in the Respondents Preliminary Objection, then it is clearly apparent that the Petitioner too concedes to the fact that his Petition is incompetent and so the only recourse available is that the Petition be withdrawn. Counsel reiterated the reasons that she had given for the delay in filing the Replying Affidavit and stated that the same is simply awaiting the signature of the deponent and it will be ready for filing in two days. 13. Counsel for the Petitioner in response thereto argued that amendments are allowed and the same can be done without the leave of the court before the pleadings close and further that amendments will still be allowed, subject to the leave of the court, after the close of pleadings. That in this case, pleadings have not yet closed because even directions on the hearing and determination of the matter have not yet been given. 14. That further, there are consequences for filing a Preliminary Objection without a Replying Affidavit being that such a party then cannot substantively respond to the issues raised in the Petition. That the Respondents have had more than 30 days to file their Response and so in the interest of fast tracking the matter, the court ought to proceed as Counsel has proposed, particularly because the Respondents will not suffer any prejudice as none has been demonstrated. 15. Counsel for the Respondents in stating that the issue raised and the representations made on the ramifications of filing a Preliminary Objection without a Replying Affidavit is a new issue, they insisted on responding and the court allowed her to. She cited the **Mutunga Rules** and stated that if there are substantive points of law in any Petition filed, the Rules states that the same are to be raised at the preliminary stage and that filing of Grounds of Opposition and/or a Replying Affidavit in addition thereto is optional. 16. That this requirement is disjunctive and not conjunctive by dint of the use of the word or and so they opted to file a Preliminary Objection and Replying Affidavit whose delay has already been explained. **Determination** 1. Having considered the representations made, it is my considered opinion that the two preliminary issues that arise for determination are; 2. **Whether the fact of the non-filing of a Replying Affidavit by the Respondent is fatal to their Preliminary Objection.** 3. **Whether the Petitioner can amend their Petition, without the leave of the court, on the basis of a yet to be heard Preliminary Objection filed in response the Petition by the Respondents.** 4. Petitions filed seeking for the enforcement of rights and fundamental freedoms provided for under the Bill of Rights are primarily governed by the procedure as set out in the **The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules Legal Notice** **117 OF 2013** otherwise known as the **Mutunga Rules.** A keen reading of these Practice and Procedure Rules shows that in such petitions, the Rules are very fluid and quite accommodative of Petitioners. Indeed, it is easily discernible therefrom that emphasis is more on the substance of the Petition than on the procedure. 5. In this regard, on the 1st issue raised as being for determination on what the fate of the Respondents Preliminary Objection that has been filed without an accompanying Replying Affidavit is, **Rule 15** of the said **Practice and Procedure Rules** is relevant and it provides as follows; **Reply to a petition** **(1) The Attorney-General or any other State organ shall within fourteen days of service of a petition respond by way of a replying affidavit and if any document is relied upon, it shall be annexed to the replying affidavit.** **(2) (a) A respondent not in the category of sub-rule (1) shall within seven days’ file a memorandum of appearance and either a—** **(i) replying affidavit;** **(ii) or statement setting out the grounds relied upon to oppose the petition.** **(b) After filing either of the documents referred to in sub-rule (2)(a), a respondent may respond by way of a replying affidavit or provide any other written document as a response to the petition within fourteen days.** **(3) The respondent may file a cross-petition which shall disclose the matter set out in rule 10(2).** 1. It is therefore clear that the procedure in which the Attorney General and other State organs are required to respond to petitions ins governed by **Rule 15(1)** which is couched in mandatory terms. How the Respondent herein is to be construed is provided for under **Article 260 of the Constitution** which definesa State organ as any commission, office, agency, or other body established under the Constitution. This includes the governments and structures established at both the National and County levels. In this regard, a County Government is considered a State organ. 2. This being the case then, the Respondent does not fall under the exemption set out under **Rule 15(2)(a) of the Rules** as herein above reproduced as submitted by the Counsel for the Respondent but falls under the provisions of **Rule 15(1)**. It was therefore incumbent upon them that they file a Replying Affidavit together with any other response to the Petition. 3. That said, the court however notes the Respondent expressed intent to file a Replying Affidavit together with their Notice of Preliminary Objection save for the logistical hiccups as herein summarised. In considering the number of Respondents and Interested Parties that have been sued in the Petition as well as the disparate nature of their offices particularly as regards the Interested Parties, I find that the explanation given by the Counsel as reasonable and therefore excusable and does not therefore warrant the striking out of their Preliminary Objection. 4. On the 2nd Issue raised for determination, whichever way one looks at it, be it under the **Mutunga Rules** (see **Rule 5** generally and **Rules 5(c) and (e)** specifically) or under **Order 8 Rule 1** of **Civil Procedure Rules 2010**, amendment of pleadings is generally allowed before the close of pleadings without the leave of the court so long as they do not occasion injustice to the other side which cannot be compensated by an award of costs. 5. In the instant case, considering that directions had not been given on the hearing and disposal of the Application and Petition, and the Respondents too had not yet filed their Replying Affidavit in response to the facts raised in the Application and Petition, then it is clear that the pleadings in this case had not yet closed. 6. As already herein stated, the amendment to the Petition dated 13th May 2026, now introduces the County Government of Bungoma as a new party to the Petition and also the only Respondent and strikes out all of the initial 1st - 5th Respondents as well as the 1st - 6th Interested Parties. It is this resultant effect that Counsel for the Respondent objects to on the ground that it introduces a new party, and is also aimed at curing the very defects in the Petition the they have raised in the Preliminary Objection. 7. The fact of this objection by the Respondent was conceded to by Counsel for the Petitioner who clearly stated in his oral representations to court that it is on the basis of the Respondent’s Preliminary Objection that he realized the need to amended the Petition, which need he proceeded to effect, by filing the Petition as amended. 8. The court was to give directions on the mode of disposal of the Application dated 25th April 2026 of course subject to the Response filed by the Respondents which has now transpired to be a Preliminary Objection. In light of the admission by Counsel for the Petitioner that upon perusing the Preliminary Objection he saw the need to ament the Petition and proceeded to do so, it is my considered opinion that the Preliminary Objection is already compromised on its merits and the same has now been rendered moot 9. In the interest of the saving of the court’s time therefore, it is my considered view that the only issue that is now left for the court’s determination is whether the acknowledged defects in the Petition can be cured by way of an amendment as the Petitioner has purported to do, or whether the Petition is incurably defective as has been submitted by the Counsel for the Respondents. 10. The Petition as amended by its very nature, introduces a new and distinct cause of action as against a new Respondent who was not a party to the initial Petition. By dint of the fact that the initial Respondents and Interested Parties in the initial Petition, as now amended have all been removed by way of the said amendment, the resultant effect is that the said Petition has essentially ceased to exist for reasons that it has no Respondents against whom the Petition has been brought. 11. There is therefore no Petition to amend and so the purported amendment has no legs to stand on. Further,I agree with the position taken by Counsel for the Respondents that the cause of action against the County Government of Bungoma now sought to be introduced by way of the purported amendment has introduced a totally new cause of action against a new Respondent who not a party to the initial Petition. 12. In this regard then, however fluid and accommodative of Petitioners as the **Mutunga Rules** can be construed to be as the court has herein observed, it is my finding that the defects in the Petition and Notice of Motion dated 25th April 2026 as sought to be amended are not mere procedural defects capable of being cured by way of an amendment as Counsel for the petitioner has proceeded to do because they affect the very scaffolding and substratum. The amendment does in fact essentially transform the Petition into an entirely new suit which only goes to underscore the fact that the defects in the Petition cannot be cured by way of an amendment. 13. In light of the fact of my above conclusions on the Application dated 13th May 2026 and the Petition and Application dated 25th April 2026, it is my finding that the Application dated 13th May 2026 is misconceived and bad in law. It is my further finding that the Petition and Application dated 25th April 2026 are incurably defective. Accordingly, both Applications as well as the Petition are now hereby struck out. This being a public interest litigation, the court directs that each party shall bear their own costs. **Read Dated and Signed at BUNGOMA on 25th June 2026** **E. OMINDE** **JUDGE**