[2022] KEHC 1588 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MIGORI

PETITION NO. 4 OF 2021

IN THE MATTER OF ARTICLES: 1,2,3,6,10,1920,21,22,23,27,35,42,47,

70,89,165,201,227,176,258 & 259 OFTHE CONSTITUTION OF KENYA

AND

IN THE MATTER OF: THE ALLEGED CONTRAVENTION OFTHE CONSTITUTION

AND

IN THE MATTER OF: SECTION 2, 6A, 33,48,87,104 & 115 OFTHE COUNTY GOVERNMENT ACT 2012

AND

IN THE MATTER OF: SECTIONS 3 & 102 OF THE PUBLICMANAGEMENT ACT

AND

IN THE MATTER OF THE PRINCIPLE OF PUBLIC PARTICIPATION IN THE PLANSTO

RELOCATE THE COUNTY HEADQUATERS OF MIGORI COUNTY FROM MIGORITOWN,

SUNA EAST SUB COUNTRY, SUNA CENTRAL WARD TO THE PROPOSED NEW LOCATION

BETWEEN

WILSON OMONDI KOMBWAYO........................................................1ST PETITIONER

PHILIP OBUNGU ORINDA...................................................................2ND PETITIONER

PETER OKEYO......................................................................................3RD PETITIONER

SAMUEL ONYANGO............................................................................4TH PETITIONER

PETER ODONGO...................................................................................5TH PETITIONER

STEVE BIKO...........................................................................................6TH PETITIONER

MARY ACHIENG....................................................................................7TH PETITIONER

DANIEL OTIENO.....................................................................................8TH PETITIONER

LUCAS OOKO..........................................................................................9TH PETITIONER

ISAH MOHAMMED..............................................................................10TH PETITIONER

LAZARO ACHIENG..............................................................................11TH PETITIONER

DEVIN ONYANGO.................................................................................12TH PETITIONER

ANTON OORO.........................................................................................13TH PETITIONER

ERICK OTIENO.......................................................................................14TH PETITIONER

JOHANES OCHANDA............................................................................15TH PETITIONER

JOHN ODERO.........................................................................................16TH PETITIONER

GEORGE OTIENO...................................................................................7TH PETITIONER

NAFTALI ODIE.......................................................................................18TH PETITIONER

AND

COUNTY GOVERNMENT OF MIGORI...............................................1ST RESPONDENT

GOVERNOR MIGORI COUNTY GOVERNMENT...........................2ND RESPONDENT

COUNTY SECRETARY, COUNTY GOVERNMENT OF MIGORI....3RD PETITIONER

AND

THE COUNTY ASSEMBLY OF MIGORI................................1ST INTERESTED PARTY

MASHIN CONSTRUCTION COMPANY LIMITED.............2ND INTERESTED PARTY

RULING

This ruling is in respect to the Notice of Preliminary Objection (the “Objection”) dated 28/6/2021 and filed in court on 30/6/2021 by the firm of Brian Otieno & Co. Advocates, Counsel for the 1st - 3rd respondents. The 1st – 3rd respondents seek to have the petitioners’ entire application be struck out on the following grounds:-

a. The court lacks jurisdiction to hear and determine the instant application;

b. The petitioners/applicants’ application offends the doctrine of exhaustion;

c. The said application is defective and cannot stand in law;

d. The application contravenes the mandatory provisions of law and proceeds to seek orders unavailable to the petitioners/applicants;

e. The court is being asked to issue orders which are superfluous;

f. That the entire application dated 10/5/2021 is an abuse of the court’s

g. process and a waste of judicial time and should be dismissed with costs.

The objection was argued orally on 28/10/2021. Mr. Otieno, learned Counsel for the 1st - 3rd respondents submitted that jurisdiction is conferred by the Constitution Statute or both; that Section 27 of the Public Procurement and Asset Disposal Act (PPADA) creates a Review Board and Section 28 of the PPADA provides for the functions of the Board; that the petitioners seek to annul a tender awarded to the 2nd interested party and want this court to inquire whether the procedure was flawed thus tendering will have to be addressed; that the proper body to address the issue is the Review Board not this court.

The respondents submitted that the application offends the doctrine of exhaustion as the Public Procurement and Disposal Board (Board) is vested with the jurisdiction to determine tender award disputes.

On the other hand, the petitioners’ argument is premised on the fact that their application is not challenging the tender rather it seeks that the 2nd interested party and/or its agents be restrained from acting on the tender until the issues in controversy are determined. Further, the petitioners contend that there is no dispute of any public asset being disposed of and therefore the Board cannot be vested with jurisdiction in the matter

Mr. Manda Counsel for the petitioners, in opposing the Preliminary Objection submitted that there is no tender dispute before this court; that what is before this court according to their prayers is challenging the transfer of the Migori County Headquarters to another location without public participation, that the PPADA is not applicable to this dispute since it does not relate to the disposal of a public asset. Counsel asked this court to consider the functions of the Public Procurement and Disposal Board as enumerated under Section 29 of the PPADA. Counsel further urged that Section 167 of the PPADA determines who can move the Review Board which includes candidates or tenderers who claim loss or damage caused by the Procurement entity; that Petitioners are not covered under Section 167 and that their remedy is under Section 174 of the PPADA.

In a brief rejoinder, Counsel for the Respondents relied on the notice of motion application filed before this court and the orders sought. Counsel submitted that order number 2 and 3 which seeks conservatory orders to stay the tender is about award of the tender which order seeks to quash the award of the tender; that order 5 seeks to quash the award of the tender and that therefore the petitioners wish to interfere with the award of the tender.

I have duly considered the objection dated 28/6/2021, the oral and written submissions by both parties. The two issues for determination are whether this court has jurisdiction to hear this application and secondly whether the application offends the doctrine of exhaustion.

A preliminary objection is one which raises a pure point of law which has been pleaded or which arises by clear implication out of the pleadings and which when argued, may dispose of the suit. An example is the objection to the jurisdiction of the court or a plea of limitation of time. Nyarangi J in Owners of the Motor Vessel “Lilian s” vs Caltex Oil (K) Ltd (1989) KLR held;

“Where the court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given…Jurisdiction is everything. Without it, a court has no power to make one more step. Where the court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

The background to this objection is that:-

The petitioners filed an application dated 10/5/2021 seeking among others conservatory orders staying the tender letter dated 10/3/2021 awarded to the 2nd interested party by the 1st respondent awarding tender No. CGM/EXEC/088/2020-2021 for the proposed construction or relocation of the Migori County Government headquarters. On the face of the grounds of the application, the petitioners contend that on or about 19/1/2021, the respondents without allowing or facilitating public participation, published an invitation to tender for the proposed construction of the Migori County headquarters thereby denying the petitioners and the general public an opportunity to take part in the process thereby violating their entitlement to such relevant information, which was against the provisions of Article 35 of the Constitution of Kenya. In the pleadings, it is also alleged that the Respondent’s did not disclose where the Migori County Headquarters was to be built.

The Public Procurement and Asset Disposal Act No. 33 of 2015 was enacted to give effect to Article 227 of the Constitution, that is, to provide procedures for efficient public procurement and for disposal of public assets. Therefore, the function of the Act is twin fold; first, to ensure efficient public procurement and secondly, disposal of public assets. The Act describes a procuring entity as a public entity making a procurement or asset disposal. A public entity among others is defined as a County Government or any organ or department of a county government.

Section 27 of the PPADA establishes a Public Procurement Administrative Review Board (Board). Section 28 of the PPADA provides for the functions of the Review Board which include reviewing, hearing and determining tendering and asset disposal disputes. Section 167 (1) of the PPADA provides for the Special groups of persons who can institute or participate the in Review Board proceedings. The persons should be a candidate in the process, a tenderer, and the person must demonstrate that it suffered or risks suffering loss or damages due to breach of duty imposed on the procuring entity. Accordingly, a party who is neither a candidate nor a tenderer cannot challenge the tender award tender which it did not bid for. That is what the court held in Republic vs Independent Electorate and Boundaries Commission & 2 others (2017) eKLR). Further to the above Section 170 of PPADA provides for who can be a party to the Review before the Board. It reads: Section 170

“Parties to review

(a) The person who requested for review;

(b) The Executing Officer of the procuring entity;

(c ) The tender notified as successful by the procuring entity; and

(d) Such other persons as the Review Board may determine.

The Respondents argued that the person aggrieved in the tendering process whether a party or not can, apply for review in the Review Board under Section 170 (e) and that is why they urge that this court does not have jurisdiction to entertain this petition.

No doubt the applicants were not parties to the tendering process and they do not fall under the categories of persons envisaged under Section 167 (1) and 170 (a) - (c). The question therefore is whether they fall under Section 170 (d) and can approach the Review Board for redress. Section 170 (d) states that the parties to review shall be such other persons as the Review Board may determine. It is clear from that Section that it is left to the discretion of the Review Board to determine those other parties who can be considered as parties to the review. The question then is should the applicants seek leave of the Review Board to be considered whether or not to file review. I think not. I believe that subsection is left to the discretion of the Review Board to invite into the proceedings parties whom they believe have a contribution to make or are of assistance to the case before them e.g. expert witnesses. The applicants have described themselves as Public interest spirited citizens and brought the petition on behalf of the general Public under Article 258 of the Constitution. The applicants’ grievances are the transfer of Migori County Government Headquarters to another location without their knowledge in violation of Article 35 of the Constitution. They alleged that the location of the headquarters was not disclosed in the tender documents. They also alleged to have been denied the right to public participation and it is this violation that resulted in the tender being awarded without their knowledge. The question then is whether the applicants have no redress since they have no locus before the Review Board.

I have had occasion to consider the decision of Justice Odunga in Petition 597 of 2017 Okiya Omtata vs. Central Bank of Kenya & Others, in which Okiya Omtata challenged the award of tender to De La Rue as a public interest litigant. I will borrow and quote from the said case extensively. When deciding whether a person not a party to the tender process has locus standi to a petition, the court, cited the case of Republic vs. I.E.B.C. & Another Exparte Coalition for Reform and Democracy & 2 Others (2017) eKLR which relied on the provisions of Articles 3 (1) and 258 of the Constitution and said:-

“In my view 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 my 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 my 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.”

The said case was upheld by the Court of Appeal in Alghurair Printing and Publishing LLC v Coalition for Reforms and Democracy & 2 Others (2017) eKLR. In Timothy Otuya Afubwa & Another vs County Government of Trans Nzoia & 3 Others (2016) eKLR the court affirmed the same position when it said:-

“We have already held above that some of public participation is required when a public entity is procuring goods or services whichever method is elected for so doing and that the type, intensity and level of public participation would vary according to the circumstances.”

Article 258 (1) provides as follows: -

“Every person has the right to institute court proceedings, claiming that this Constitution has been contravened, or is threatened with contravention.”

J. Odunga also observed that there are some cases where the Review Board has no jurisdiction and it is only the High Court that can deal and he supported that view with the decision of Republic vs. I.E.B.C. & Another Exparte Coalition for Reforms & Democracy & 2 Others 2017 eKLR Where the court said:-

“With respectIt is therefore my view and I so hold that in appropriate circumstances, Courts of law and Independent Tribunals are properly entitled pursuant to Article 1 of the Constitution to take into account public or national interest in determining disputes before them where there is a conflict between public interest and private interest by balancing the two and deciding where the scales of justice tilt. Therefore the Court or Tribunals ought to appreciate that in our jurisdiction, the principle of proportionality is now part of our jurisprudence hence it is not unreasonable or irrational to take the said principle into account in arriving at a judicial determination.”

J. Odunga concluded that a person who is disqualified from instituting administrative review proceedings before the Review Board is entitled to commence any other available judicial proceedings to challenge an award of tender by a public entity. I totally agree with the Judge’s findings. After considering the above decision and the cited decisions of the High Court and Court of Appeal, I am satisfied that the Review Board has no jurisdiction in this matter. However, the High Court has unlimited jurisdiction to hear all matters related to violation of fundamental rights and the petitioners are before the correct forum to ventilate their case. Having found so, I find no need to go into dealing with the doctrine of exhaustion because it does not apply to the circumstances of this case. The upshot is that the Preliminary Objection lacks merit and is hereby dismissed. The court will go ahead to hear the Notice of Motion and Petition on its merit

DATED, DELIVERED AND SINGED AT MIGORI THIS 17TH DAY OF MARCH 2022.

R. WENDOH

JUDGE

Ruling delivered in presence of;-

Mr. Manda for the 1st - 18th Petitioners

Mr. Otieno & Mr. Mangu 1st - 3rd Respondents

N/A for the 1st Interested Party

N/A for the 2nd Interested Party

Ms. Emma - Court Assistant