Okoiti & 2 others v Attorney General & 7 others (Civil Appeal 13 & 10 of 2015 (Consolidated)) [2020] KECA 589 (KLR)
The bottom line
#Kenya's Court of Appeal ruled the SGR procurement violated procurement law, but because the railway was already built, no contract could be cancelled.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appeal is overtaken by events, is an academic exercise and is moot because the construction of the railway is substantially completed
- 2.Whether the learned Judge erred in ordering to be expunged from the record the documents presented by the appellants as evidence in support of the petitions
- 3.Whether the learned Judge erred in concluding that the procurement of the SGR did not contravene the Constitution of Kenya
- 4.Whether the learned Judge erred in holding that the Public Procurement and Disposal Act, 2005 did not apply to the procurement by reason of Section 6(1) thereof
Key legal issues
#Admissibility of documents obtained through undisclosed means from whistleblowers
The High Court correctly expunged the documents; Article 50(4) permits exclusion of irregularly obtained evidence in civil and criminal matters alike, and citizens must follow lawful procedures such as Article 35 and Section 80 of the Evidence Act to obtain public documents
The court balanced the need for access to evidence against impropriety in obtaining it. It held that the Supreme Court's decision in Njonjo Mue confirms that information should flow from custodians through lawful channels; the appellants should have requested the documents from Government Departments or obtained certified copies under Sections 79-81 of the Evidence Act. Admitting clandestinely obtained documents would countenance illicit actions and be detrimental to the administration of justice.
Whether the procurement was exempt from the Public Procurement and Disposal Act, 2005 under Section 6(1)
Section 6(1) did not oust the Act; KRC was obliged to comply with the Act because the engagement of CRBC was procured long before the financing agreement, so it was not an obligation arising from a negotiated grant or loan
The MoU of 12th August 2009 provided that CRBC would carry out the feasibility study, design and implementation once funding was secured, making CRBC's selection a foregone conclusion from the outset. The contracts were signed in July and October 2012 while the financing agreement with Exim Bank came later. The loan terms did not dictate the procurement; rather the procurement dictated the loan terms. The High Court's contrary finding was unsupported by the facts.
Whether the procurement contravened Article 227 of the Constitution
Single-sourcing is not per se unconstitutional, but on the facts KRC violated Article 227(1) and Sections 6(1) and 29 of the Act; however the claims that Parliament was bypassed and environmental considerations ignored failed
Article 227(1) sets constitutional minimum standards of fairness, equity, transparency, competitiveness and cost-effectiveness, but Article 227(2) contemplates implementing legislation providing alternative procedures, so absence of competition alone does not violate the Constitution. Here the Act applied yet open tendering under Section 29 was not used, hence the declaration of violation. The parliamentary deliberation culminating in the Railway Development Levy and the environmental impact assessment and NEMA licence countered the remaining claims.
Mootness
Although injunctive and quashing reliefs were no longer available, the appeal was not moot because issues on constitutionality of the procurement, interpretation of Section 6 of the Act, and the expungement of documents remained live
Applying the functional doctrine of mootness from National Assembly v Institute for Social Accountability, the court held that certainty and development of constitutional law and the public interest justified deciding the case notwithstanding completion of the project. The doctrine should not be applied mechanistically; determination of procurement principles outlives the executed contract.
Legal principles established
#- Article 50(4) of the Constitution applies to both civil and criminal trials: evidence obtained in a manner that violates a right in the Bill of Rights may be excluded where admission would be detrimental to the administration of justice, so the old 'it matters not how you get it' rule no longer represents the law in Kenya
- Section 6(1) of the Public Procurement and Disposal Act, 2005 cannot be used to oust the Act where the identification of the supplier preceded the negotiated loan agreement; the exemption applies only where the terms of the loan dictate the procurement
- The absence of competition in a direct procurement procedure does not in itself render that procedure unconstitutional under Article 227(1)
- The mootness doctrine is functional, founded on judicial economy, functional competence of courts and the integrity of the judicial system, and does not apply mechanically
Court orders
#- 1.Upheld the decision of the learned Judge ordering to be expunged from the record documents presented by the appellants as evidence in support of the petitions
- 2.Set aside that part of the judgment of the High Court holding that the procurement of the SGR was exempt from the provisions of the Public Procurement and Disposal Act, 2005 by reason of Section 6(1) thereof
- 3.Substituted an order declaring that Kenya Railways Corporation, as the procuring entity, failed to comply with, and violated provisions of Article 227(1) of the Constitution and Sections 6(1) and 29 of the Public Procurement and Disposal Act, 2005 in the procurement of the SGR project
- 4.Ordered that each party shall bear its own costs of the appeal, this being a matter of public interest
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya
- Consolidated petitions (Omtatah & Gisebe and LSK petitions)
- Jurisdiction invoked
- First appeal to the Court of Appeal under Rule 29(1) of the Court of Appeal Rules
- Consolidated with
- Civil Appeal No. 10 of 2015
Relief refused
#Injunctions to restrain implementation of the contract or orders to quash the award of the contract
The reliefs are no longer within reach as the contract has been executed and the Mombasa-Naivasha segment of the project is built and completed
Mandatory orders to compel the AG to direct the Police to criminally investigate public officers involved in the procurement
Not granted; the appeals succeeded only on the Section 6(1) point
Reversal of the expungement of documents tendered in support of the petitions
The documents were irregularly obtained; admitting them would be detrimental to the administration of justice contrary to Article 50(4) of the Constitution
Declaration that the entire procurement was unconstitutional for want of competitive bidding
Absence of competition in alternative procurement procedures does not, in itself, render the procedure unconstitutional
Costs
Each party shall bear its own costs of the appeal, this being a matter of public interest.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
We set aside that part of the judgment of the High Court holding that the procurement of the SGR was exempt from the provisions of the Public Procurement and Disposal Act, 2005 by reason of Section 6(1) thereof. We substitute therefore an order declaring that Kenya Railways Corporation, as the procuring entity, failed to comply with, and violated provisions of Article 227 (1) of the Constitution and Sections 6 (1) and 29, of the Public Procurement and Disposal Act, 2005 in the procurement of the SGR project. The appeals succeed to that extent only.
We order that each party shall bear its own costs of the appeal, this being a matter of public interest.
We conclude and hold, therefore, that in this instance, Section 6(1) of the Act did not oust the application of the Act from the procurement and KRC, as the procuring entity, was therefore under an obligation to comply with the requirements of the Act in the procurement of the SGR project.
by dint of Article 50(4) of the Constitution, the adage, “it matters not how you get it if you steal it even, it would be admissible in evidence” is not representative of the state of the law in our legal system, irrespective of whether the dispute is of a criminal or civil nature.
It was not necessary for the appellants to resort to unorthodox or undisclosed means to obtain public documents. If they deemed the documents were relevant (as indeed they were) then, they ought to have invoked the laid down procedure of production of documents.
the absence of “competition” in direct procurement in our view does not, in itself, render that procedure unconstitutional.
the mootness doctrine, is not an abstract doctrine. Rather, it is a functional doctrine founded mainly on principles of judicial economy and functional competence of the courts and the integrity of the judicial system.
Issues in the judgment
#The judgment identifies the statute enacted under Article 227(2) as the Public Procurement and Disposal Act, Act No. 33 of 2015, but earlier text and the issues for determination refer to the repealed Public Procurement and Disposal Act, 2005 as the applicable statute; the numbering/definition of the 2015 Act as printed appears internally inconsistent with its common designation as the Public Procurement and Asset Disposal Act, 2015
Counsel's submission for the appellants states that the argument by KRC on the Section 6(1) exemption 'did hold', apparently intending 'did not hold'; the sense is contradicted by the surrounding argument
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Okoiti & 2 others v Attorney General & 7 others (Civil Appeal 13 & 10 of 2015 (Consolidated)) [2020] KECA 589 (KLR)", Case Analysis (2020). Civil Appeal No. 13 of 2015 (lead file). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/589/eng@2020-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.