George Kimani Kariuki & 7 Others v Kenya Forest Service & 3 Others; Biashara Masters Sawmills Limited & 9 Others (Interested Parties)

BUFFLOC INVESTMENT…………………6TH INTERESTED PARTY PRIME PLY…………………………………..7TH INTERESTED PARTY JANWILL ENTERPRISES LIMITED………………………………………8TH INTERESTED PARTY ROSE MVC…………………………………..9TH INTERESTED PARTY RULING 1. This ruling is in respect of two Preliminary Objections, the first one is dated 16th June, 2026 by the 6th and 8th Interested Parties on the following grounds: 1. THAT this Honorable Court is deprived of the requisite jurisdiction to adjudicate upon the instant dispute, the same being a matter properly and exclusively falls within the original purview of the Public Procurement Regulatory Authority (PPRA) in accordance with the provisions of the Public Procurement & Asset Disposal Act, 2015 given that the substratum of the grievances herein emanates from and fundamentally pertains to the process, evaluation, award or execution of a Public Procurement Contract. ELCPET E004 OF 2026 2

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2. THAT the Public Procurement & Asset Disposal Act, 2015 expressly ousts the jurisdiction of this Honorable Court to entertain, delve into or otherwise pronounce itself on any disputes, claims or controversies touching on or arising from public procurement proceedings. 2. The 1st Respondent also filed its Preliminary Objection dated 22nd May, 2026 on the following grounds: 1. The Honourable Court lacks requisite primary jurisdiction as the Court of first instance to hear and determine the Application and Petition as the same offends the provisions of sections 9(1)(h), 28(1)(a) and 167(4)(a) and (c) of the Public Procurement and Asset Disposal Act, Cap 412C as read together with Regulation 203 of the Public Procurement and Asset Disposal Regulations, 2020. 2. The Application and Petition as currently filed is an abuse of the Court process since the Applicants have failed ELCPET E004 OF 2026 to observe and satisfy the well-established 3

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“Doctrine of exhaustion” as read together with the express provisions of section 27 and 28 of the Public Procurement and Asset Disposal Act and Article 159 of the Constitution of Kenya, 2010. 3. The Application and Petition offends the Doctrine of Constitutional Avoidance. 4. Consequently, the Application and Petition against the 1st Respondent herein should be struck out in limine with costs to the 1st Respondent. RESPONSE 3. The 1st Petitioner filed his replying affidavit sworn on 24 th June, 2026 where he averred that the doctrine of exhaustion and constitutional avoidance did not apply in the present case. 4. He averred that himself nor his co-petitioners were not candidates to the tender process within the meaning of Section 167(1) of the Public Procurement and Asset Disposal Act, 2015 5. He averred that they did not have the locus to commence proceedings before the review board. He added that the Petition ELCPET E004 OF 2026 4

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touched on other constitutional issues such as environmental rights which is not within the review board’s jurisdiction. 6. He urged the court to dismiss the preliminary objection with costs. THE 6TH AND 8TH INTERESTED PARTIES’ SUBMISSIONS 7. Counsel for the 6th and 8th interested parties filed his submissions dated 16th June, 2026 where he identified one issue for determination, whether the preliminary objection to the court’s jurisdiction is merited. 8. He relied on Section 167(4)(a) of the Public Procurement and Asset Disposal Act and Regulation 203 of the Public Procurement and Asset Disposal Regulations, 2020. He submitted that the petition fell within the purview of the Public Procurement Regulatory Authority. 9. He relied on Section 9(1)(h) of the Public Procurement and Asset Disposal Act and submitted that the present proceedings lacked this court’s jurisdiction to entertain the procurement process. ELCPET E004 OF 2026 5

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THE 1ST RESPONDENT’S SUBMISSIONS 10. Counsel for the 1st Respondent filed his submissions dated 9 th July, 2026 and identified two issues for determination, whether the Petition is fundamentally a Procurement Dispute and whether the Petitioners have locus for redress under the Public Procurement and Asset Disposal Act. 11. On the first issue, it was his submission that the substratum of the Petitioners’ grievances emanated from the choice of procurement method and the attendant processes for evaluation, award or execution by the 1st Respondent of Tender No. KFS/DISP/28/2025-26 for the Sale of Forest Plantation Materials in Nakuru County. 12. He further submitted that the Petition and the reliefs sought demonstrated that the Petitioners sought procurement remedies, being stay of the implementation of Tender No. KFS/DISP/28/2025-26 for the Sale of Forest Plantation Materials in Nakuru County, nullification of the procurement process and execution of the resultant contracts. ELCPET E004 OF 2026 6

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13. It was his submission that the substance and true character of the dispute related to public procurement for which the proper forum for resolution would be before the Public Procurement Administrative Review Board (PPARB) and/or the Public Procurement Regulatory Authority (PPRA). 14. On the second issue, he relied on Section 167 of the Public Procurement and Asset Disposal Act and submitted that the gravamen of the Petitioners’ case was that since they were not candidates or tenderers for Tender No. KFS/DISP/28/2025-26 for the Sale of Forest Plantation Materials in Nakuru County they did not have any standing before the PPARB and therefore had no other avenue for redress of their grievances other than this Honourable Court. 15. He relied on the case of Consortium of Rentco Africa Limited and Spenomatic (K) V Accounting Officer, Moi Teaching and Referral Hospital; Pharmaken Limited (Interested Party) [2020] KEPPARB 39 (KLR). 16. Counsel further relied on Sections 8, 35, 36, 37, 18 and 39 of the Public Procurement and Asset Disposal Act. He ELCPET E004 OF 2026 7

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submitted that if the investigative mandate of the PPRA was invoked, the above sections required the PPRA to undertake investigations on inter alia, a procuring entity to assess its compliance with the Act upon request by a public institution or any person. He cited the case of Muthinja & another V Henry & 1756 others [2015] KECA 304 (KLR). THE PETITIONERS’ SUBMISSIONS 17. Counsel for the Petitioners filed his submissions dated 25 th June, 2026 where he identified the following issues for determination: i. Whether this Honourable Court has the requisite primary jurisdiction to hear and determine the Application and Petition. ii. Whether the Application and Petition is an abuse of the Court process and whether the same offends the doctrine of Exhaustion. iii. Whether the Application and Petition offends the doctrine of Constitutional Avoidance. iv. ELCPET E004 OF 2026 Who bears the costs. 8

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18. On the first issue, he relied on the case of Owners of Motor Vessel “Lilian S” V Caltex Oil (Kenya) Ltd (1989) eKLR and Article 162(2) (b) and Section 13 of the Environment and Land Court Act. 19. It was his submission that the preliminary objection was misconceived in fact and in law. He further relied on Section 28 and 167 of the Public Procurement and Asset Disposal Act and submitted that the right to seek administrative review before the PPARB was reserved for a candidate or a tenderer. 20. He cited the case of ADK Technologies Limited (In Consortium with Transnational Computer Technologies Limited) V Principal Secretary, National Treasury and Planning & another; Kingsway Business Systems Limited (In Consortium with Kobby Technologies Limited and Inplenion Eastern Africa Limited) (Interested Party) [2021] KEPPARB 30 (KLR). 21. Counsel submitted that the Petitioners were neither candidates nor tenderers since they never obtained the tender, submit bids, participate in the evaluation of the proceedings not seek ELCPET E004 OF 2026 9

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award of the impugned tender. He relied on the case of Al Ghurair Printing and Publishing LLC V Coalition for reforms and Democracy & 2 Others [2017] JELR 106234 (CA). 22. He further submitted that the existence of the review mechanism established under Section 167 did not oust the constitutional and statutory jurisdiction of this court. He relied on Section 174 of the said Act. He submitted that it would be unjust and contrary to Articles 22, 23, 48, 162(2)(b) and 258 of the Constitution to hold that persons who are not tenderers are barred from seeking constitutional relief while also lacking locus before the Board. 23. On the second issue, counsel relied on the case of Satya Bhama Gandhi V Director of Public Prosecutions & 3 Others [2018] KEHC 6100. He submitted that the Petitioners approached the court to challenge the design, categorization and award of the tender for the sale of forest plantation materials within Nakuru County. ELCPET E004 OF 2026 10

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24. He argued that the dispute transcended a mere procurement grievance and raised substantive constitutional and legal questions that concerned fairness and accountability of the impugned tender process by the 1st Respondent. Counsel cited the case of Wambui V Hashim & 6 Others [2026] 8289 (KLR). 25. It was his submission that the tender catered to only two industry players with disproportionate allocation of forest resources to one dominant sector. He added that the same fell short of the provisions of National Values and Principles of procurement of public goods and services. 26. He submitted that the dispute fell within this court’s jurisdiction and therefore the doctrine of exhaustion is exempted in the instant case. 27. On the third issue, counsel relied on the case of Benard Murage V Fine Serve Africa Ltd & 3 Others [2015] eKLR and submitted that the Petitioners approached the court in good faith and sought redress for grievances that arose from an impugned public tender process. He further cited the case of ELCPET E004 OF 2026 11

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Fleur Investments Limited V Commissioner of Domestic Taxes & Another [2018] eKLR. 28. It was his submission that the tender process contravened the constitutional principles of land policy under Article 60 of the constitution as well as undermined environmental governance obligation as it targeted forest plantations located in ecologically sensitive areas without having conducted the requisite Environmental Impact Assessment. 29. He further submitted that the court was called upon to interrogate the constitutionality and legality of the impugned actions. He added that the application nor petition did not offend the doctrine of constitutional avoidance. 30. On the final issue of costs, he relied on the case of Farah Awad Gullet V CMC Motors Group Limited [2018] KECA 158 (KLR) and Rai & 3 Others V Rai & 4 Others [2014] KESSC 31 (KLR). He urged the court to dismiss the preliminary objection with costs. ANALYSIS AND DETERMINATION ELCPET E004 OF 2026 12

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31. The main issue for determination is whether the Preliminary Objection is merited. 32. It is first important to establish whether what has been raised amounts to a Preliminary Objection. 33. In the case of Mukisa Biscuits Manufacturing Co. Ltd V West End Distributors Ltd (1969) EA 696, the court held as follows: “A Preliminary Objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the Court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration… a Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion.” 34. The 1st Respondent and 6th and 8th Interested Parties claim that this court lacked the jurisdiction to hear and determine the ELCPET E004 OF 2026 13

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present matter as the dispute related to public procurement for which the proper forum for resolution would be before the Public Procurement Administrative Review Board (PPARB) and/or the Public Procurement Regulatory Authority (PPRA). 35. The Petitioners on the other hand contend that the Petition and application was proper before the court since they were not candidates to the tender process within the meaning of Section 167(1) of the Public Procurement and Asset Disposal Act, 2015. 36. It was their contention that they did not have the locus to commence proceedings before the review board and further, that the Petition touched on other constitutional issues such as environmental rights which was not within the review board’s jurisdiction. 37. It is this court’s view that the 1st Respondent and the 6th and 8th Interested Parties having raised the ground of jurisdiction, the same falls within the definition of a Preliminary point of law and this court shall proceed to determine the same. 38. In the case of Owners of the Motor Vessel “Lillian S” V Caltex Oil (Kenya) Ltd [1989] KLR 1 the court held as follows: ELCPET E004 OF 2026 14

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“Jurisdiction is everything. Without it a court has no power to make one more step. Where a 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…Where a 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.” 39. This court has keenly perused the court record and it is clear under paragraph 8 of the Petition that the Petitioner stated that the 1st Respondent used selected, targeted and exclusionary approach in the tender process contrary to Article 227 of the Constitution and Public Procurement and Asset Disposal Act. 40. In addition, the prayers sought by the Petitioners revolves around the 1st Respondent’s conduct of the tender process being illegal and discriminatory and that the same ought to be quashed. ELCPET E004 OF 2026 15

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41. Article 162(2) (b) of the Constitution as read together with the provisions of Section 13(2) of the ELC Act provides as follows; “In exercise of its jurisdiction under Article 162(2) (b) of the Constitution, the Court shall have power to hear and determine disputes— a) relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources; b) relating to compulsory acquisition of land; c) relating to land administration and management; d) relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and e) any other dispute relating to environment and land.” 42. It is clear from the above provisions that this Honourable court lacks jurisdiction to deal with issues arising out of Tender No.KFS/.DIPS/28/2025-2026. In the petition dated 27th April 2026, the Petitioners raise issues in respect of above tender. In my view, the predominant issue is in the manner it was awarded; that it violates the principles set out in Articles 27 of the constitution. ELCPET E004 OF 2026 16

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43. In the Public Procurement and Asset Disposal 2015 Act, 2015 the referred to is the High Court. Under Section 175 (1) of the Act, any person aggrieved by a decision of the Public Procurement Administrative Review Board may seek Judicial Review in the High Court within fourteen (14) days of the decision. 44. It should be noted that prayer (h) of the petition seeks that the said Tender be quashed and to prevent further processing of the bids/awards. In my view, this court lacks jurisdiction to grant the said orders. The proper court would be the High Court. 45. The Petitioners have quoted the case of Law Society of Kenya Vs AG & 3 Others; Katiba Instutute & 6 others (Interested Parties) (2024) KEELC 6532 (KLR) which in my view is distinguishable from the facts herein. In the said case the court held that there was need for strict adherence to the Public Procurement Act and regulations in the award of forest materials to sawmills and discontinuation of direct allocation of forest stocks. However, the main issues in that suit were logging activities, indigenous forest protection, lifting of logging moratorium and public participation as opposed to the instant scenario which deals with a specific tender. 46. I also agree with the 1st Respondent’s and the interested parties’ submissions that the Petitioners have not exhausted ELCPET E004 OF 2026 17

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the remedies provided by the PPAD and in particular Section 170 (d) 174 and 175 of the said Act, which they must before coming to court. 47. In conclusion, I find that this court has no jurisdiction to hear and determine the issues raised in the petition herein. The Preliminary Objections dated 22 nd May 2026 and 16th June 2026 are upheld. The Notice of motion and the petition are hereby struck out. The orders issued on the 30 th April 2026 are hereby vacated. There shall be no orders as to costs. Ruling dated, signed and delivered virtually at Nakuru this 1 st October 2026. L KOMINGOI JUDGE IN THE PRESENCE OF :Ms Mungai for Mr. B. O Akang’o for the petitioners No appearance for the 1st Respondent No appearance for 2nd and 3rd Respondents No appearance for the 1st, 2nd 3rd, 4th, 5th, 7th and 9th interested parties. Mr. Mwenesi for the 6th and 8th interested parties. Court Assistant: Irene/Derrick ELCPET E004 OF 2026 18

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