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Supreme CourtPartially AllowedPetition 13 & 18 (E019) of 2020 (Consolidated)

Kenya Railways Corporation & 2 others v Okoiti & 3 others

Supreme Court of Kenya
16 June 2023
Philomena Mbete MwiluP. M. MwiluMohammed Khadhar IbrahimM. K. IbrahimSmokin Charles WanjalaS. C. WanjalaNjoki Susanna NdunguNjoki NdunguWilliam OukoW. Ouko
17,520 words in judgment
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AI-assisted case brief
·~70 min to read original · ~4 min brief

The bottom line

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Supreme Court upholds SGR procurement as lawful government-to-government deal.

What this practically means

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The Supreme Court of Kenya ruled that the Standard Gauge Railway (SGR) project was legally procured. It was a government-to-government deal, exempt from the Public Procurement Act. The court also said leaked documents obtained secretly cannot be used as evidence. Public interest lawsuits must follow proper legal procedures, not be used for personal gain.

Executive summary

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The Supreme Court of Kenya delivered a consolidated judgment in two appeals and a cross-appeal arising from the procurement of the Standard Gauge Railway (SGR) project. The Court of Appeal had declared that Kenya Railways Corporation (KRC) violated Article 227(1) of the Constitution and sections 6(1) and 29 of the Public Procurement and Disposal Act, 2005 (PPDA) in procuring China Road and Bridge Corporation (CRBC) for the SGR project. The Supreme Court set aside that declaration. The Court held that the procurement was a government-to-government transaction, exempt from the PPDA under section 6(1), and that it complied with Article 227 of the Constitution. The Court found that the binding commercial contracts were executed after the 2010 Constitution came into force, and the MoU was a non-binding precursor. On the issue of expunged documents, the Supreme Court affirmed the decisions of the High Court and Court of Appeal, holding that the documents were inadmissible because they were obtained through clandestine means without following the procedure under Article 35 of the Constitution and sections 80 and 81 of the Evidence Act. The Court also dismissed the cross-appeal on environmental grounds, finding that an Environmental Impact Assessment was conducted and the respondents failed to challenge the licence before the National Environment Tribunal. The Court further held that the appeal was not moot, as the constitutional and statutory questions remained live issues of public importance. The Court cautioned against abuse of public interest litigation under Articles 22 and 258 of the Constitution. Each party was ordered to bear its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appeal meets the constitutional threshold under article 163(4)(a) of the Constitution
  2. 2.Whether the appeal before the Court of Appeal was moot
  3. 3.Whether the learned judges erred in expunging documents in support of the petitions filed by the 1st, 2nd and 3rd respondents at the High Court
  4. 4.Whether there were environmental considerations by the appellants in the SGR project
  5. 5.Whether the procurement of the SGR was in accordance with article 227 of the Constitution and the provisions of the PPDA, 2005

Key legal issues

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01

Whether the appeal before the Court of Appeal was moot

Holding

The appeal was not moot because, although the SGR project was completed, the constitutional and statutory questions regarding compliance with Article 227 and the PPDA, the admissibility of evidence, and environmental considerations remained live issues of public importance.

Reasoning

The Supreme Court held that the completion of the SGR project did not render moot the consideration of whether the procurement complied with Article 227 of the Constitution and section 6(1) of the PPDA, whether the respondents could rely on whistleblower evidence, and the environmental considerations. These issues raised matters of public importance due to the enormity of the project and public finance expended, and the operative law remained unsettled. The Court cited the Canadian and South African jurisprudence and its own decision in Institute for Social Accountability to support the discretion to hear a matter that is not moot where it is in the public interest.

p. 4
02

Whether the learned judges erred in expunging documents in support of the petitions

Holding

The superior courts did not err in expunging the documents because they were obtained through clandestine means without following the procedure under Article 35 of the Constitution and sections 80 and 81 of the Evidence Act, rendering them inadmissible.

Reasoning

The Supreme Court affirmed the Court of Appeal's decision, holding that public documents must be produced in court through the procedure set out in sections 80 and 81 of the Evidence Act, or by requesting information under Article 35 of the Constitution. The respondents did not follow these procedures. The Court distinguished the case from Njonjo Mue, noting the legal principle remained the same. It further held that admitting illegally obtained evidence would be detrimental to the administration of justice and violate Article 50(4) of the Constitution. The Court also cautioned against abuse of public interest litigation under Articles 22 and 258.

p. 28
03

Whether the procurement of the SGR complied with article 227 of the Constitution as read together with the provisions of the PPDA, 2005

Holding

The procurement of the SGR project complied with Article 227 of the Constitution and was exempt from the PPDA, 2005 under section 6(1) because it was a government-to-government transaction.

Reasoning

The Supreme Court found that the procurement was not undertaken by KRC as a procuring entity but by the Government through the Ministry of Transport, acting on a government-to-government basis. The MoU was a non-binding precursor, and the binding commercial contracts were executed after the 2010 Constitution came into force. The Court held that the arrangement fell within the realm of a government-to-government transaction exempt from the PPDA under section 6(1). It further held that even under direct procurement, the principles of Article 227(1) were not violated, as the respondents did not demonstrate any breach. The Court noted that the respondents had alternative avenues for challenge, such as parliamentary oversight and the National Environment Tribunal, which they did not pursue.

p. 37
04

Whether there were environmental considerations by the appellants in the SGR project

Holding

The environmental concerns raised by the respondents were without merit because an Environmental Impact Assessment was conducted, a licence was issued by NEMA, and the respondents failed to challenge the licence before the National Environment Tribunal as required by EMCA.

Reasoning

The Supreme Court upheld the High Court's finding that an EIA was conducted, a licence was issued, and the public was given an opportunity to comment. The Court applied the doctrine of exhaustion, holding that the respondents' grievances regarding the EIA and licence fell within the jurisdiction of the National Environment Tribunal under section 129 of EMCA, which they failed to invoke. The Court cited its decision in Albert Chaurembo Mumba to support the exhaustion doctrine.

p. 32

Legal principles established

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  • A Memorandum of Understanding (MoU) is non-binding unless it clearly shows intent to create a contract.
  • Government-to-government procurement is exempt from the Public Procurement Act under section 6(1).
  • Even exempt procurement must still follow constitutional principles of fairness, transparency, and cost-effectiveness.
  • Public documents are only admissible in court if they are originals or certified copies, not if obtained secretly.
  • Public interest litigation under Articles 22 and 258 must not be abused for personal vendettas.

Court orders

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  1. 1.The Court of Appeal judgment dated June 19, 2020 is hereby set aside.
  2. 2.The cross appeal dated September 23, 2022 be and is hereby dismissed.
  3. 3.We affirm the superior courts’ decision on the expunging of documents.
  4. 4.The procurement process for the Standard Gauge Railway project was undertaken in conformity with the provisions of article 227 of the Constitution.
  5. 5.The Standard Gauge Railway procurement was undertaken as a government to government contract hence exempt from the provisions of the Public Procurement Disposal Act, 2005 by virtue of section 6(1) of the said Act.
  6. 6.Each party bears their own costs.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority
Mohammed Khadhar Ibrahim
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
On appeal from
Court of Appeal at Nairobi
Civil Appeal No 13 of 2015 (Consolidated with Civil Appeal No 10 of 2015)
Jurisdiction invoked
Article 163(4)(a) of the Constitution
Consolidated with
Petition 18 of 2020

Relief refused

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Setting aside paragraphs 83, 84, 110 and 111(a) of the Court of Appeal judgment (cross-appeal)

The cross-appeal was dismissed in its entirety.

p. 39

Declaration that the procurement violated the Constitution and PPDA (sought by respondents)

The Court found the procurement was a government-to-government contract exempt from the PPDA and compliant with Article 227.

p. 39

Costs

Each party bears their own costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The Court of Appeal judgment dated June 19, 2020 is hereby set aside.
p. 38 Disposition
The procurement process for the Standard Gauge Railway project was undertaken in conformity with the provisions of article 227 of the Constitution.
p. 39 Constitutional compliance of procurement
The Standard Gauge Railway procurement was undertaken as a government to government contract hence exempt from the provisions of the Public Procurement Disposal Act, 2005 by virtue of section 6(1) of the said Act.
p. 39 Exemption from PPDA
Not having obtained and adduced the documents in the manner set out under sections 80 and 81 of the Evidence Act or requested for information under article 35 of the Constitution, the documents are inadmissible, we so declare.
p. 28 Admissibility of evidence
Articles 22 and 258 of the Constitution are not open-ended panacea or bogey provisions to be resorted to as a panacea to any person under the guise of public interest.
p. 30 Public interest litigation
At any rate, procurement must still conform to the provisions of article 227 even when done pursuant to the obligations of a treaty or agreement or any other procedure.
p. 38 Constitutional principles in procurement
Each party bears their own costs.
p. 39 Costs order

Key timeline

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2010-08-27
Kenya's new Constitution takes effect, requiring fair procurement under Article 227.
2014-10-01
Kenya signs a Memorandum of Understanding with China for the SGR project.
2017-05-31
First phase of SGR (Mombasa-Nairobi) is completed and launched.
2020-06-19
Court of Appeal delivers judgment on the SGR procurement challenge.
2023-07-28
Supreme Court sets aside part of the Court of Appeal judgment, upholds SGR procurement.

Practical implications

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For lawyers

Evidence rules tightened for public documents

Lawyers must now strictly follow sections 80 and 81 of the Evidence Act when introducing public documents. Leaked or clandestinely obtained documents will be inadmissible, even in public interest cases. Advise clients to use Article 35 of the Constitution to formally request information instead.

For businesses

Government-to-government deals are safe

Businesses can rely on government-to-government procurement being exempt from the Public Procurement Act. However, they must still ensure the deal meets constitutional standards of fairness and transparency. Document all steps to show compliance with Article 227.

For individuals

Public interest lawsuits have limits

Individuals cannot use public interest litigation as a tool for personal vendettas. Courts will scrutinize motives. If you want to challenge government actions, follow proper procedures—like requesting documents under Article 35—rather than relying on leaked information.

Frequently asked questions

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Is the SGR procurement legal in Kenya?+

Yes, the Supreme Court ruled that the SGR procurement was legal. It was a government-to-government deal, exempt from the Public Procurement Act, and complied with the Constitution's fairness requirements.

Can I use leaked documents as evidence in a Kenyan court?+

No. The Supreme Court said leaked documents obtained secretly are inadmissible. You must use original or certified copies, or formally request information under Article 35 of the Constitution.

What is a government-to-government contract in Kenya?+

It is a deal between the Kenyan government and another government, not a private company. Under section 6(1) of the Public Procurement Act, such deals are exempt from normal procurement rules.

Can I sue the government in Kenya for a completed project?+

Yes, if the case raises important legal questions. The Supreme Court said even a completed project like the SGR can be challenged if constitutional or statutory issues remain unsettled.

Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Railways Corporation & 2 others v Okoiti & 3 others", Case Analysis (2023). Petition 13 & 18 (E019) of 2020 (Consolidated). Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/38/eng@2023-06-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.