Independent Electoral and Boundaries Commission (IEBC) v National Super Alliance (NASA) Kenya & 6 others (Civil Appeal 224 of 2017) [2017] KECA 436 (KLR)
The bottom line
#Kenya's Court of Appeal allowed the IEBC's ballot-printing tender to stand, ruling that public participation isn't required before direct procurement.
What this practically means
#Executive summary
#Key legal issues
#Justiciability of Article 10(2) of the Constitution
Article 10(2) values are immediately justiciable and enforceable, not aspirational or progressive; violation can found a cause of action alone or with other provisions
Relying on the Supreme Court's dicta in Communication Commission of Kenya v Royal Media Services and the High Court's decision in the Mui Coal Basin petition, the Court reasoned that it could never have been the intention of Kenyans that rule of law, democracy, good governance and participation of the people be realized only progressively. Article 259(1)(a), requiring interpretation that promotes constitutional values, reinforced the conclusion that these are enforceable immediately.
Nature of judicial review - Order 53 versus constitutional petition
The High Court did not err in treating the application as a constitutional petition; judicial review now has constitutional underpinning in Articles 22, 23 and 47 as operationalized by the Fair Administrative Action Act
The Court adopted Suchan Investment, the Supreme Court's CCK dicta and South African comparative authority (Pharmaceutical Manufacturers) to hold that common law judicial review has been subsumed into constitutional judicial review. On the face of the application Articles 10, 38(2), 47, 88 and 227 were cited, reflecting the fusion; a party may choose either or both routes and it is not fatal to adopt either.
Failure to attach the decision to be quashed (Order 53 Rule 7(1))
Non-attachment was not fatal where the existence and nature of the decision were clear, uncontested and definite; the requirement may be waived in such circumstances
Although Order 53 Rule 7(1) requires a copy of the decision to be lodged, the Court identified exceptions, including leave to lodge the decision later. Here it was not disputed that the IEBC had made a decision to adopt direct procurement; in such cases the court may take judicial notice of the decision or the parties may record its nature by consent, guided by Article 159(2)(d) on technicalities.
Public interest, procurement timelines and the discretionary relief granted
The High Court exercised its discretion wrongly by ignoring statutorily regulated procurement timelines and the constitutional election date; certiorari and mandamus were set aside
The Court did simple arithmetic on Regulations 36, 40, 46 and 54(5) of the 2006 Regulations and Section 80(6) of the 2015 Act and concluded that no procurement method other than direct procurement could yield an award before 8th August 2017. The High Court wrongly treated timelines as an internal operational matter for IEBC. Nonetheless, constitutional values of transparency and accountability cannot be sacrificed at the altar of time constraints.
Splitting of the tender
The contract was severable under Clause 8.2, so the High Court's limitation of re-tendering to presidential ballot papers was not an unlawful splitting; Sections 54(1) and 176(a) are directed at the procuring entity
Section 54(1) is aimed at the mischief of a procuring entity evading regulated thresholds by splitting. Whether a contract is severable depends on its terms; here Clause 8.2 expressly provided for severability, and Clauses 7.15.2(a) and 7.15.3 permitted termination in whole or in part. There was therefore a presumption in favour of severance rebutted by the contract itself.
Newspaper cuttings and the bias allegations (Cross-Appeal)
Newspaper reports are hearsay; without corroboration they cannot prove allegations of bias or improper association, and the trial court's factual findings on bias were affirmed
Guided by Laxmi Raj Shetty and local authorities, the Court held that a statement of fact in a newspaper is merely hearsay absent the maker's testimony. Re-evaluating the evidence, the Court found no linkage between IEBC and the meeting between the President and the Dubai Chamber of Commerce delegation, and declined to draw an inference of bias from the contractor consistently winning tenders, since other bidders may simply not have met the criteria.
Legal principles established
#- Article 10(2) of the Constitution is immediately justiciable and enforceable and its violation can found a cause of action
- Kenya has one, unified system of judicial review with constitutional underpinning; common law Order 53 and constitutional/statutory review are not mutually exclusive
- Public participation is, as a general principle subject to limited exceptions, mandatory in all procurement by a public entity, but its mode, degree and scope are case-specific
- Public participation is NOT a mandatory precondition to a decision to adopt direct procurement; compliance with Sections 103 and 104 of the PPAD Act as read with Article 227(1) suffices
- Newspaper cuttings, without corroboration, have low probative value and cannot alone discharge the burden of proving a fact in issue such as bias
- A party alleging a special relationship under Section 115 of the Evidence Act must first prove that relationship before the burden shifts
- The standard of proof for apprehended bias is the balance of probability, not an 'unmistakable likelihood' standard
- Procurement timelines are statutorily regulated, and judicial discretion on remedies must take account of constitutional election timelines and statutory procurement timelines
Court orders
#- 1.The main appeal was allowed
- 2.The judgment of the High Court dated 7th July 2017 was set aside to the extent that the court erred in finding that public participation is a mandatory requirement in direct procurement
- 3.The judgment of the High Court was set aside to the extent that the court erred in granting certiorari and mandamus without due weight to public interest and the statutorily regulated procurement timelines
- 4.The Cross-Appeal dated 12th July 2017 was dismissed
- 5.The orders of certiorari and mandamus issued by the High Court were set aside
- 6.It was confirmed that the constitutional date for that year's General Elections was 8th August 2017
- 7.Each party to bear its/his own costs in the appeal and the High Court
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- First appellate jurisdiction of the Court of Appeal over the High Court (constitutional/judicial review judgment of the High Court); the judgment does not expressly cite the appellate provision
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Republic v Chief Magistrates Court Nakuru & another; Elemech Engineering Co. Ltd & another (Interested Parties); Njarama (Ex parte Applicant) (Judicial Review E013 of 2024) [2025] KEELRC 2860 (KLR)[2025] KEELRC 2860 (KLR)22 Oct 2025
- Republic v Nakuru & another; Muthendu (Ex parte Applicant); Elemech Engineering Comapny Limited & another (Interested Parties) (Judicial Review E012 of 2024) [2025] KEELRC 2839 (KLR)[2025] KEELRC 2839 (KLR)22 Oct 2025
- Ledama v Narok County Government (Civil Appeal (Application) E921 of 2024) [2025] KECA 875 (KLR)[2025] KECA 875 (KLR)23 May 2025applied
Cite this brief
#Cite this brief
Caselaw, "Independent Electoral and Boundaries Commission (IEBC) v National Super Alliance (NASA) Kenya & 6 others (Civil Appeal 224 of 2017) [2017] KECA 436 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/436/eng@2017-07-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.