High Court 16279 of 2025

The National Assembly does not have power to make binding legal pronouncements on the legality or constitutionality of instruments The ex-parte applicant challenged a resolution of the National Assembly, acting through its Committee on Delegated Legislation, which declared the Special Operating Framework Agreement (SOFA) illegal, irregular and unconstitutional. The applicant contended that in making such a determination, parliament exceeded its constitutional and statutory mandate, usurped the judicial function, and encroached upon the jurisdiction of the High Court by purporting to adjudicate on the legality and constitutionality of a duly executed government agreement. Conversely, the respondents maintained that the National Assembly acted within its oversight role under Article 95(5)(b) of the Constitution and Standing Order No. 44(2)(c), arguing that the impugned resolution did not amount to a judicial determination but was a lawful expression of parliamentary concern regarding the fiscal and procedural propriety of the agreement. Reported by Flora Weru Judicial Review – remedies - certiorari and prohibition - purpose of judicial review remedies- what was the purpose of the Judicial Review remedies? Constitutional Law – separation of powers – legislature - roles and powers of the legislature- the National Assembly - claim that the National Assembly acted ultra vires in its constitutional mandate, usurped the judicial function, violated the doctrine of separation of powers, breached legitimate expectation, and denied it fair administrative action by declaring the Special Operating Framework Agreement (SOFA) illegal, irregular, and unconstitutional – what were the roles and the powers of the National Assembly – Constitution of Kenya article 95. Constitutional Law - separation of powers – legislature –inquiry and oversight powers of the National Assembly –where the National Assembly declared the Special Operating Framework Agreement (SOFA) illegal, irregular, and unconstitutional - whether the National Assembly in exercising its powers of inquiry and oversight could make binding legal pronouncements on the legality or constitutionality of instruments – Constitution of Kenya, article 95. Constitutional Law – fundamental rights and freedoms – right to fair administrative action –right to a fair hearing - procedural and substantive fairness – claim that the National Assembly acted ultra vires by performing a quasi-judicial function, violating the constitutional standard of fairness - claim that the National Assembly failed to afford the applicant a meaningful opportunity to be heard before adverse action- whether the Committee breached the right to fair administrative action and fair hearing under article 47 and 50 of the Constitution by failing to provide the applicant with a meaningful opportunity to be heard before issuing adverse findings and recommendations – Constitution of Kenya, article 47, 50. Constitutional Law - legitimate expectation - substantive and procedural protection – government agreements – Special Operating Framework Agreement - where the applicant thought that he had a legitimate expectation that the Special Operating Framework Agreement would remain valid for ten years based on prior representation and the repudiation of that agreement without due process violated that expectation - whether the applicant had a legitimate expectation. Judicial Review – judicial review procedure – documentation of judicial review procedure– requirement to annex decisions – effect of missing documentation – where an impugned decision must ordinarily be placed before the Court to enable it ascertain the propriety of the challenged action - whether judicial review required that an impugned decision be annexed to the pleadings, and if the absence of such documentation affected the court’s ability to assess legality and fairness. Brief facts The ex-parte applicant, Blue Nile Rolling Mills Limited, filed a notice of motion dated May 27, 2025 seeking judicial review orders of certiorari and prohibition to quash a resolution passed by the National Assembly on April 22, 2025. It was stated that the Special Operating Framework Agreement (SOFA), entered https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16279/eng@2025-10-31 2

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into on January 30, 2020 pursuant to Kenya’s industrialization policy and relevant Finance Acts, granted tax incentives upon which the applicant invested over Kshs. 10 billion. The applicant contended that the impugned resolution, adopted without notice or hearing following a parliamentary inquiry, was ultra vires, violated the Constitution, usurped judicial authority, and breached its rights to fair administrative action, property, and legitimate expectation, and that subsequent communications by the Clerk of the National Assembly to State agencies had caused operational disruption and threatened the applicant’s business. It was the respondents’ case that the National Assembly acted lawfully within its constitutional mandate when investigating the legality and procedural propriety of the Special Operating Framework Agreement and adopting the Committee on Delegated Legislation’s Report. They contended that the ex-parte applicant had been formally invited and given the opportunity to make oral and written submissions, but chose not to attend the rescheduled hearing, submitting only written statements which were duly considered. The respondents further asserted that the applicant had misrepresented and selectively disclosed material facts to the Court to obtain the interim orders of May 6, 2025, thereby abusing the court process. They maintained that the parliamentary inquiry was a lawful exercise of oversight, did not usurp judicial functions, did not contravene the sub judice rule, and accordingly urged that the ex-parte orders be set aside and the Judicial Review proceedings dismissed with costs. Issues i. What was the purpose of the Judicial Review remedies? ii. What were the roles and the powers of the National Assembly? iii. Whether the National Assembly, in exercising its powers of inquiry and oversight could make binding legal pronouncements on the legality or constitutionality of instruments. iv. Whether the applicant had a legitimate expectation that the Special Operating Framework Agreement would remain valid for ten years based on prior representations or past practices of the Government and that the repudiation of that agreement without due process violated that expectation. v. Whether the National Assembly’s Committee breached the right to fair administrative action under Article 47 of the Constitution by failing to provide the applicant with a meaningful opportunity to be heard before issuing adverse findings and recommendations. vi. Whether judicial review required that an impugned decision be annexed to the pleadings, and if the absence of such documentation affected the court’s ability to assess legality and fairness. Held 1. Judicial review proceedings were concerned with the decision-making process and not the merits of a decision. Thus, the purpose of the remedy of judicial review was to ensure that an individual was given fair treatment by the authority to which he or she had been subjected to. It was not part of that purpose to substitute the opinion of the instant Court for that of the authority constituted by the law to decide the matter in question. 2. The National Assembly wields broad powers of inquiry and oversight. However, those powers were not unbounded since the principle of separation of powers, which ran throughout the Constitution, required that while Parliament may deliberate, investigate, and recommend, it could not purport to make binding legal pronouncements on the legality or constitutionality of instruments. That was a power and mandate reserved for the courts as provided for under article 165(3)(d) of the Constitution. 3. It had been judicially acknowledged by the Supreme Court that no arm of government was to arrogate to itself powers beyond those given to it by the Constitution, and none should encroach upon the mandate of another. In view of the above, it was apparent whereas the Parliament in exercise of its legislative authority enjoyed the freedom to deliberate and resolved issues of public interest, its oversight powers could not extend to issuing determinations that had the effect of nullifying lawful acts or instruments, which was a judicial function. That, in the instant Court’s view, would amount to usurping or encroaching on the power of the Judiciary, which would appear to fly on the face of the doctrine of separation of powers. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16279/eng@2025-10-31 3

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4. 5. 6. 7. 8. 9. 10. 11. Parliament went beyond mere deliberation in inquiring into the legality of tax exemptions granted to the Applicant under the Special Operating Framework Agreement (SOFA), The Committee on Delegated Legislation explicitly found that the Special Operating Framework Agreement was illegal, irregular and unconstitutional which was a definitive conclusion that, in its language and effect, amounted to an adjudication on the legality of the Special Operating Framework Agreement which was premised on the Finance Act, 2020 and the corresponding gazettement which thereafter ensued. Such a finding, binding in expression and coupled with directions to State agencies to act in accordance with the resolution, was neither investigative nor advisory in character. Instead, it was in substance and form, a quasi-judicial determination, and therefore ultra vires Parliament’s oversight function. In purporting to pronounce the Special Operating Framework Agreement (SOFA) illegal and unconstitutional, the National Assembly through its committee on delegated legislation exceeded its jurisdiction and contravened the principle of separation of powers. legitimate expectation arose where a public authority, by representation or past practice, created an expectation in an individual that it would act in a certain way, and fairness required that it be bound by that expectation. The applicant in this case, was entitled to rely on the representations made by the Government through duly authorized officers that the Special Operating Framework Agreement (SOFA) was lawful, binding, and operative for a period of ten years. Therefore, the 2nd Respondent’s repudiation of that agreement through its committee on delegated legislation without following the due process to declaring the same illegal, not only undermined the applicant’s legitimate expectation but was also likely to erode confidence in the stability of government commitments, which was a critical tenet of both the rule of law and ethical economic practices. The unilateral branding of the Special Operating Framework Agreement (SOFA) as “illegal” without affording the applicant a hearing or an opportunity to defend its validity through the due process of law, and especially when the court was seized with the matter vide the Constitutional Petition No. E464 of 2024 was procedurally unfair and violated articles 47 and 50(1) of the Constitution. The right to fair administrative action was not a mere procedural formality. It required that the affected party be afforded a meaningful opportunity to be heard before an adverse decision was reached. In the instant case, the Committee’s findings were not merely advisory; they were condemnatory in that they branded the applicant’s agreement as illegal and recommended action against the benefits drawn from the agreement. It was therefore incumbent upon the Committee to have ensured that not only was the applicant invited but also that it was substantively heard on the adverse allegations before any conclusion was drawn. In any event, the committee ought not to have exercised a quasi-judicial function. Hence, the decision by the Committee fell short of the constitutional standard of fairness required under article 47 of the Constitution of Kenya. In judicial review proceedings, the impugned decision must ordinarily be placed before the Court to enable it ascertain the propriety of the challenged action. However, that requirement was not absolute and must be viewed in context. Although the ex-parte applicant did not annex a certified copy of the said resolution to its pleadings, the existence and substance of the impugned decision were not in dispute. The same resolution was duly captured in the Hansard record of the National Assembly proceedings of 22nd April, 2025, which formed part of the record before the instant Court. Moreover, judicial review was concerned with the process and legality of decision-making rather than the formalities of documentation. It would therefore be overly technical and inconsistent with the spirit of article 159(2)(d) of the Constitution, which required that courts administer justice without undue regard to procedural technicalities to strike out or discount an otherwise meritorious cause on account of such omission, especially where the substance of the impugned act was clearly discernible from the record. Having already found that the Report of the Committee on Delegated Legislation which formed the basis of the National Assembly’s resolution was tainted with procedural improprieties, ultra vires acts, https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16279/eng@2025-10-31 4

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and violation of the principles of fair administrative action, it necessarily followed that any subsequent action, resolution, or decision founded upon that impugned report was equally tainted and legally untenable. 12. The ex-parte applicant had demonstrated that the decision of the National Assembly declaring its Special Operating Framework Agreement illegal, irregular, and unconstitutional was made ultra vires, in breach of the principles of legitimate expectation, fair administrative action, and the doctrine of separation of powers. As a result, the impugned resolution was therefore unconstitutional, irrational, and procedurally improper. Application allowed Orders i. An Order of Certiorari was issued to bring into the instant Court and quash the resolution of the National Assembly passed on April 22, 2025 adopting the Report of the Committee on Delegated Legislation on the inquiry into the tax exemptions under the Special Operating Framework Agreement between the Government of Kenya and Blue Nile Rolling Mills Limited. ii. An Order of Prohibition was issued prohibiting the 1st and 2nd Respondents, their agents, servants, or assigns from implementing or acting upon the said resolution, or in any way interfering with the implementation of the Special Operating Framework Agreement unless and until the same was lawfully varied, reviewed, or set through a proper and judicious legal process in accordance with the law. iii. The Notice of Motion dated 3rd June, 2025 filed by the 1st and 2nd Respondents was dismissed for want of merit. iv. Each party shall bear its own costs of both applications. Citations Cases Kenya 1. Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others Petition 14, 14A, 14B & 14C of 2014 (Consolidated); [2014] KESC 53 (KLR) - (Applied) 2. In the Matter of the Speaker of the Senate & another Advisory Opinion Reference 2 of 2013; [2013] KESC 7 (KLR) - (Explained) 3. John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others Petition 17 of 2015; [2021] KESC 39 (KLR) - (Explained) 4. Kabata & 4 others v National Assembly & 3 others; Law Society of Kenya & 16 others (Interested Parties) Petition E338, E342, 372, 373 & E407 of 2022 (Consolidated); [2023] KEHC 481 (KLR) (Mentioned) 5. Kenya Bankers Association v Attorney General & Kenya Revenue Authority; National Assembly (Interested Party) Petition 353 of 2018; [2020] KEHC 10263 (KLR) - (Mentioned) 6. Kenya National Examination Council v Republic; GGN & 9 others (Ex parte) Civil Appeal 266 of 1996; [1997] KECA 58 (KLR) - (Mentioned) 7. Masengo, William Mghaa & others v National Assembly & 5 others Constitutional Petition No E464 of 2024 - (Mentioned) 8. Nakumatt Holdings Limited v Commissioner of Value Added Tax Civil Appeal 200 of 2003; [2011] KECA 295 (KLR) - (Mentioned) 9. Pharmacy and Poisons Board v George Wang’anga, National Assembly, Speaker of National Assembly, Speaker of The Senate, Attorney General, Kenya PharmaceuticalDistributors Association & National Drug Quality Control Laboratory Civil Appeal 79 of 2018; [2020] KECA 775 (KLR) - (Applied) 10. Republic v Judicial Commission of Inquiry into the Goldenberg Affair & 2 others; George Saitoti (Ex parte) Miscellaneous Civil Application 102 of 2006; [2006] KEHC 3533 (KLR) - (Explained) https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16279/eng@2025-10-31 5

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Republic v Kimenyi; Permanent Secretary, Ministry of Planning (Interested Party); Kenya Institute for Public Policy and Research Analysis (KIPPRA) (Ex parte) Civil Appeal 160 of 2008; [2013] KECA 373 (KLR) - (Mentioned) 12. Republic v National Assembly & 2 others; Okoiti (Exparte); Retirement Benefits Authority (RBA) & 2 others (Interested Parties) Judicial Review Application 095 of 2020; [2022] KEHC 15587 (KLR) (Explained) 13. Toili & 2 others v Speaker, the National Assembly & 2 others Petition E548 of 2022; [2025] KEHC 1148 (KLR) - (Mentioned) Uganda Twinomuhangi Pastoli v Kabale District Local Government Council & 2 others [2008] 2 EA 300 — ( Mentioned) South Africa Doctors for Life International v Speaker of the National Assembly & others [2006] ZACC 11; 2006 (12) BCLR 1399 ; 2006 (6) SA 416 — (Explained) United Kingdom 1. Council of Civil Service Unions v Minister for the Civil Service [1984] UKHL 9; [1985] AC 374; [1984] 3 WLR 1174; [1985] ICR 14; [1984] 3 All ER 935; [1985] IRLR 28 - (Mentioned) 2. R v Secretary of State for the Home Department, ex parte Brind [1991] 1 AC 696; [1991] 1 All ER 720; [1991] 2 WLR 588; [1991] AC 696; [1991] UKHL 4 - (Mentioned) Canada Roncarelli v Duplessis ([1959] 6 DLR (2d) 689) —(Explained) Texts 1. De Smith, SA., et al (Eds) (2004), Judicial Review of Administrative Action London: Sweet & Maxwell 6th Edn p 609 2. Fordham, M., (Ed) (2004), Judicial Review Handbook London: Hart Publishing, 3rd Edn Statutes Kenya 1. Civil Procedure Act (Cap 21) section 6 — (Interpreted) 2. Civil Procedure Rules, 2010 (Cap 21 Sub Leg) order 53, rules 1(2); 7(1) — (Interpreted) 3. Constitution of Kenya articles 1(3); 2(2); 22; 23; 40; 47; 50(1); 95(2),(5)(b); 159(1)(2)(d); 165(3)(d), (6) — (Interpreted) 4. Excise Duty Act (Cap 472) In general — (Cited) 5. Fair Administrative Action Act (Cap 7L) section 4 — (Interpreted) 6. Income Tax Act (Cap 470) In general — (Cited) 7. Law Reform Act (cap 26) sections 8, 9 — (Interpreted) 8. Miscellaneous Fees and Levies Act (Cap 469C) In general — (Cited) 9. Statutory Instruments Act (Cap 2A) sections 2, 11, 12(2) — (Interpreted) 10. Value Added Tax Act (Cap 476) In general —(Cited) Advocates None mentioned 11. RULING 1. There are two (2) applications before this court for determination. The first in time is the notice of motion application dated May 27, 2025 filed by the ex-parte applicant, Blue Nile Rolling Mills https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16279/eng@2025-10-31 6

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Limited, while the second is the notice of motion application dated June 3, 2025, filed by the 1st and 2nd respondents. Both applications stem from the same factual and procedural background. 2. In the first application, the ex-parte applicant seeks an order of certiorari to quash a resolution allegedly passed by the 2nd respondent on April 22, 2025 while in the second application, the Respondents seek to set aside the ex-parte orders issued on May 6, 2025, which granted the ex-parte applicant leave to proceed with these Judicial Review proceedings and imposed a corresponding stay. However, if the court addresses the first application first, the second will become moot and for that reason, it will treat the issues raised in the second application simultaneously with the replying affidavit filed by the respondents, as if they were filed in response to the ex-parte applicant's application. 3. The first application is a notice of motion application dated May 27, 2025, brought under order 53 rule 1(2) of the Civil Procedure Rules, sections 8 and 9 of the Law Reform Act (Cap 26), and articles 1(3), 2(2), 22, 23, 47, and 95 of the Constitution of Kenya, 2010 . It is premised on the leave granted by this court on May 6, 2025 to commence Judicial Review proceedings against the respondents and it seeks the following principal reliefs:a. That an order of certiorari be and hereby granted to remove to this court and quash the decision/resolution of the 2nd respondent passed on Tuesday April 22, 2025 adopting the Report on the Committee on Delegated Legislation on its inquiry into the tax exemptions to Blue Nile Rolling Mills Limited under the Special Operating Framework Agreement and the Certificate of the National Assembly's Approval certified by the 1st respondent; and, b. That an order of prohibition be and hereby granted to prohibit the 2nd respondent from interfering with the implementation of the special Operating Framework Agreement and/or reaching decision on its constitutionality, legality and impropriety. c. That costs of and incidental to this Application be provided for. d. That the Honourable court be at liberty to grant such further and other relief that may be just and expedient. 4. The motion is supported by the statutory statement and verifying affidavit of Kotni Kumar, both dated and filed on May 6, 2025, and is anchored upon other grounds that the Ex-parte Applicant was the first commercial manufacturer of galvanized wire in Kenya, having operated for approximately nineteen years, and that it entered into a Special Operating Framework Agreement (SOFA) with the Government of Kenya on January 30, 2020. 5. The said Agreement, the Applicant avers, was entered into pursuant to the National Industrialization Policy Framework for Kenya (Sessional Paper No. 9 of 2012), which was promulgated to advance the Government’s Industrialization Agenda under Vision 2030. The framework sought to transform Kenya into a globally competitive industrial hub through the introduction of incentives such as tax holidays, preferential tariffs, and import exemptions to spur investment in the then targeted manufacturing sectors, including the iron and steel industry. 6. The applicant further asserts that the legislative foundation of the Special Operating Framework Agreement (SOFA) was progressively entrenched through the Finance Acts of 2018, 2020, and 2022, which amended the Income Tax Act, Value Added Tax Act, Excise Duty Act, and Miscellaneous Fees and Levies Act to incorporate provisions for the implementation and continuity of such special operating frameworks. The Applicant relies on judicial authorities, including Kenya Bankers Association v Attorney General & another; National Assembly (Interested Party) [2020] eKLR, and Kabata & 4 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16279/eng@2025-10-31 7

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others v National Assembly & 3 others [2023] KEHC 481 (KLR), where the constitutionality and legislative propriety of the said Finance Acts were upheld. 7. Pursuant to the Agreement and its statutory underpinnings, the ex-parte Applicant avers that it invested substantial sums exceeding Kshs. 10 billion, including financing secured from international lenders such as the Exim Bank and the International Finance Corporation (IFC) in reliance of a tenure of ten (10)years contained in the agreement which had been lawfully executed and to date, is still a binding instrument under Kenyan law. 8. The dispute giving rise to these proceedings arose when, on April 22, 2025, the National Assembly passed a resolution adopting the report of its Committee on Delegated Legislation which declared the Applicant’s Special Operating Framework Agreement illegal, irregular, and unconstitutional. The Applicant argues that the said resolution was precipitated by a request for a statement raised by the Member for Kiambaa Constituency, Hon. John Kawanjiku, MP, hence was passed without any notice, consultation, or opportunity for the Applicant to be heard. 9. The ex-parte applicant decries the impugned resolution as draconian, discriminatory, and ultra vires, contending that the National Assembly arrogated to itself jurisdiction and the constitutional mandate to adjudicate upon the legality or constitutionality of an agreement whose validity was already under judicial consideration in High Court Constitutional Petition No. E464 of 2024: William Mghaa Masengo & Elvis Charo & others v National Assembly & 5 others. 10. It is further averred that in his capacity as Clerk to the National Assembly, the 1st respondent subsequently issued communications to various State Agencies; including the Ministry of Trade, the Kenya Revenue Authority, the National Treasury, and the Head of Public Service, directing them to act in accordance with the Assembly’s Resolution. The Applicant alleges that these communications have led to administrative paralysis, delayed clearance of imported materials, and the imminent risk of the applicant’s factory shutting down. 11. The applicant asserts that the decision violates its constitutional rights under articles 40, 47, and 50 of the Constitution, the principles of natural justice, and the doctrine of legitimate expectation, having entered into the Special Operating Framework Agreement (SOFA) in reliance upon clear statutory provisions and Government assurances. 12. It is argued that the resolution was made in bad faith, is irrational, unreasonable, and disproportionate, and constitutes a gross abuse of legislative power contrary to the rule of law and the principle of separation of powers. 13. In its statutory statement, the applicant sets out extensive grounds, chief among them that:a. The National Assembly acted ultra vires its constitutional mandate by purporting to determine the legality and constitutionality of the Special Operating Framework Agreement (SOFA); b. The impugned resolution constitutes an unlawful usurpation of judicial authority; c. The decision was reached without affording the Applicant a hearing, thus violating the rules of natural justice; d. The decision was discriminatory, irrational, and made in bad faith, with the intention of frustrating the Applicant’s lawful investment; e. The decision violates article 47 on Fair Administrative Action and article 50(1) on the right to a fair hearing; and that the impugned resolution, if left unchallenged, would result in irreparable https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16279/eng@2025-10-31 8

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harm, including loss of business, breach of contractual obligations, the retrenchment of over 1,000 employees, and reputational damage by erroneously associating the agreement as an illegal tax evasion scheme. 14. Therefore, the applicant has urged the court to exercise its supervisory jurisdiction under sections 8 and 9 of the Law Reform Act, as read together with article 165(6) of the Constitution, to issue the prerogative orders of certiorari and Prohibition as sought. The Response 15. In opposition to the ex-parte applicant’s application, the 1st and 2nd respondents filed a replying affidavit sworn on June 3, 2025 by Samuel Njoroge, CBS, the Clerk of the National Assembly. 16. The deponent begins by setting out the constitutional, procedural, and factual background leading to the adoption of the impugned resolution by the National Assembly. He has deposed that article 95(2) of the Constitution empowers the National Assembly to deliberate on and resolve issues of concern to the people, while article 95(5)(b) empowers it to exercise oversight over State organs. Further, he has pointed out that under Standing Order 44(2)(c) of the National Assembly, a Member may request a statement from a committee Chairperson on matters within the committee’s mandate, which statement is to be made within twenty-one (21)days or such shorter period as the Speaker may direct. 17. That in exercise of that provision, the deponent has averred that on July 31, 2024, the Member of Parliament for Kiambaa Constituency, Hon. John Njuguna Kawanjiku on the floor of the House, requested a statement concerning the legality and fairness of the tax exemptions granted under the Special Operating Framework Agreement (SOFA) between the Government of Kenya and the ex-parte applicant, Blue Nile Rolling Mills Limited. 18. Upon the request being made, the Speaker of the National Assembly referred the matter to the Committee on Delegated Legislation for its consideration. The deponent has averred that the Committee duly undertook investigations into the circumstances surrounding the grant of the tax exemptions, the legal basis thereof, the benefits conferred on the Applicant, and the possible impact of the tax exemption on government revenue and the local steel industry. Following the inquiry, the Committee prepared a Report dated September 25, 2024, which was tabled before the National Assembly on September 26, 2024 and was subsequently adopted by the House on April 22, 2025. 19. Further, Mr. Njoroge has deposed that in the course of its inquiry, the Committee invited relevant stakeholders including the National Treasury and Economic Planning, the Ministry of Investments, Trade and Industry, the Kenya Association of Manufacturers, and the ex-parte applicant, to submit both oral and written representations. The ex-parte applicant was specifically invited by a letter dated August 22, 2024 to provide its written response to the Statement and to appear before the Committee on August 27, 2024. 20. The deponent has stated that upon request by the ex-parte applicant vide its letter dated August 26, 2024, the Committee acceded to the applicant’s request to reschedule the meeting and consequently fixed the new date for September 11, 2024, as confirmed in the Committee’s letter dated August 27, 2024, annexed as ‘SN-5’. 21. Thereafter, by a letter dated September 17, 2024, the ex-parte Applicant informed the Committee that it would not be available to attend the sitting that had been further rescheduled to September 18, 2024, and requested that its written submissions be considered as its response to the Statement. The deponent averred that the Committee accordingly took into account the Applicant’s written submissions, together with those of all other stakeholders before finalizing its inquiry and making https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16279/eng@2025-10-31 9

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recommendations, which culminated in the Report adopted by the National Assembly on April 22, 2025. 22. The deponent has then outlined the key recommendations adopted by the National Assembly, which included:a. A resolution declaring that the Special Operating Framework Agreement between the Government and Blue Nile Rolling Mills Limited was entered into outside the requisite legal framework and therefore was unprocedural, unlawful, null and void; b. A direction that all relevant statutory bodies take necessary legal action against all parties involved in the process of granting the irregular tax exemptions; c. And a requirement that pursuant to section 12(2) of the Statutory Instruments Act, the Cabinet Secretary for the National Treasury and Economic Planning submits tax exemption guidelines for the implementation of Special Operating Framework arrangements to the National Assembly within six months from the date of adoption of the Report. 23. He emphasized that the National Assembly’s actions were consistent with its constitutional mandate under articles 95(2) and 95(5)(b), being an exercise of oversight and investigative powers over State organs, and that Parliament itself did not take any legal action but merely directed the appropriate statutory agencies to act within their respective mandates. 24. In addressing the ex-parte applicant’s contention that the impugned Report and resolution contravened the doctrine of sub judice owing to the pendency of Constitutional Petition No. E464 of 2024 – William Mghaa Masengo & Elvis Mcharo & others v National Assembly & Cabinet Secretary for Trade, Investment and Industry & 4 others, the deponent has averred that the Committee’s consideration of the Statement relating to the tax exemptions was a lawful and legitimate exercise of discretion under Parliament’s oversight mandate and did not in any way prejudice the said matter. He has deposed that the invocation of the sub judice rule to shield executive action from legislative scrutiny was therefore misplaced. 25. The deponent has asserted that the inquiry by the Committee into whether the tax exemptions under the Special Operating Framework Agreement (SOFA) were granted in accordance with the law fell squarely within Parliament’s constitutional oversight mandate and did not replicate or usurp the judicial function. Consequently, the deponent contends that the Committee’s actions were within its legal bounds and cannot be deemed to have contravened the sub judice principle. 26. He further deposed that the sub judice rule, as applied in judicial processes, requires demonstration of several elements such as:a. that there exist two or more suits over the same subject matter; b. that one was filed before the other; c. both are pending before courts of competent jurisdiction; and that, d. the parties in both suits are the same or their representatives. While referring this court to the decision in the case of High Court in Toili & 2 others v Speaker of the National Assembly & 2 others (Petition E548 of 2022) [2025] KEHC 1148 (KLR) the deponent has reiterated that as was clarified in that case, Section 6 of the Civil Procedure Act applies strictly to matters pending before competent courts, and not for matters pending before Parliament which are governed by Standing Order 89, which vests the Speaker with discretionary authority to determine whether or not a matter should be referred to in the House or its Committees. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16279/eng@2025-10-31 10

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27. Accordingly, the deponent has averred that the decision by the Committee on Delegated Legislation to proceed with the inquiry was lawfully undertaken under the Speaker’s discretion and did not contravene the sub judice rule. He has reiterated that the inquiry was initiated prior to the filing of the said Constitutional Petition, as the Statement had been made on July 31, 2024, referred to the Committee thereafter, and the Report tabled on 26th September 2024, whereas Petition E464 of 2024 was filed in Court on September 10, 2024. 28. He has added that the ex-parte applicant had already been invited to appear before the Committee by August 22, 2024, well before the said petition was instituted, and thus the Committee was properly seized of the matter. On that basis, the deponent maintained that the principle of sub judice was inapplicable. 29. In conclusion, the deponent has contended that the impugned proceedings of the National Assembly were undertaken lawfully within the scope of its constitutional oversight powers, and that the exparte applicant had been accorded an opportunity to participate in the Committee’s process. He therefore urged that the notice of motion dated May 27, 2025 be dismissed with costs to the 1st and 2nd respondents. 30. In further retaliation to the ex-parte applicant’s application, the 1st and the 2nd respondents filed the Notice of Motion dated the June 3, 2025 seeking inter alia, orders that the ex-parte orders issued by this Court on May 6, 2025 staying the implementation of the National Assembly’s resolution passed on April 22, 2025 be set aside and that the entire proceedings be dismissed for being an abuse of the court process. 31. In summary, the 1st and 2nd respondents have contended that the ex-parte orders were obtained through material non-disclosure and misrepresentation of facts by the ex-parte applicant. They have deponed that contrary to the applicant’s allegations of having been denied a hearing by the Committee on Delegated Legislation, the record demonstrated that the Applicant was formally invited to appear before the Committee and was granted an opportunity to make both oral and written submissions. 32. It has been averred that the Applicant, through its advocates, Ahmednasir Abdullahi Advocates LLP, acknowledged receipt of the invitation but opted not to attend the hearing scheduled for September 18, 2024, and instead choosing to rely solely on its written submissions dated September 17, 2024. The respondents have further contended that those submissions were duly received, acknowledged, and considered by the Committee, as reflected on Pages 22 to 26 of the Committee’s Report dated September 25, 2024. 33. According to the 1st and 2nd respondents, the ex-parte applicant deliberately omitted or redacted material portions of the said Committee Report which documented its engagement with the Committee and its written submissions. They asserted that such selective disclosure was intended to mislead this Court into believing that there had been a denial of the Applicant’s right to fair administrative action under article 47 of the Constitution, thereby procuring the interim stay orders through deception and concealment of material facts. 34. It is further deponed that in adopting the Report of the Committee on April 22, 2025, the National Assembly acted strictly within its constitutional and legal mandate under articles 95(2) and 95(5)(b) of the Constitution and Standing Order 44(2)(c) of the National Assembly Standing Orders. Thus the Respondents contended that the impugned resolution was an exercise of the National Assembly’s oversight powers, not subject to judicial interference in the absence of illegality or unconstitutionality. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16279/eng@2025-10-31 11

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35. In conclusion, the respondents have urged the Court to set aside the ex-parte orders issued on May 6, 2025 and to dismiss the entire Judicial Review proceedings for abuse of court process, asserting that the Ex-parte Applicant had come to court with unclean hands having concealed material facts and misrepresented the true record of proceedings before the Committee. 36. In rejoinder, he ex-parte applicant filed a further affidavit sworn on June 16, 2025 by Kotni Kumar, the Accountable Manager of the ex-parte applicant. In the said affidavit, Mr. Kumar has deposed that the respondents’ affidavit was frivolous, vexatious, and an abuse of the court process, having been founded upon falsehoods both in fact and law. He has contended that the Report of the Committee on Delegated Legislation dated September 25, 2024 delved into issues of constitutionality, nonconformity, and non-compliance, which formed the subject matter of HCCHRPET No. E464 of 2024: William Mghaa Masengo and Elvis Charo & others v The National Assembly & The Cabinet Secretary for Trade, Investment and Industry & 4 others, thereby violating the doctrine of separation of powers. 37. Mr. Kumar has also averred that the National Assembly was a named respondent in the said Constitutional Petition and was therefore fully aware that the constitutionality and legality of the Special Operating Framework Agreement were already under judicial consideration. He stated that matters pending before a court are not amenable to parliamentary inquiry, yet the National Assembly proceeded to conduct one regardless. He contended that the initiation of the parliamentary inquiry while the constitutional petition was still pending amounted to a usurpation of the judicial function. 38. He has further deponed that the ex-parte applicant, by its letter dated September 17, 2024, had indicated to the Committee that Senior Counsel Ahmednasir M. Abdullahi was available to provide additional clarification, whether written or oral, but that the Committee declined to afford a physical hearing. The deponent interpreted this as evidence of a deliberate avoidance of due process by the Committee, conscious that its actions had encroached upon the judicial function. 39. According to the ex-parte applicant, the Committee on Delegated Legislation exceeded its constitutional and statutory mandate. Whereas its function was merely investigative, it allegedly rendered definitive findings on issues of constitutionality and legality which are matters within the exclusive province of the Judiciary. Mr. Kumar has emphasized that such action contravened the doctrines of separation of powers and legality, as the Committee’s role was limited to inquiry and recommendation, not adjudication. He has averred that the Committee’s conduct, in making conclusive legal findings, was ultra vires, undermined the rule of law, and generated legal uncertainty. 40. He also asserted that the Committee’s findings and recommendations were timed immediately after this Court vacated interim conservatory orders on April 8, 2025, which had previously suspended the Agreement’s implementation. According to the deponent, the proximity in timing was not coincidental but reflected an effort to achieve through parliamentary means what could not be obtained judicially. He alleged that the inquiry was discriminatory and had selectively targeted the exparte applicant while ignoring similarly situated entities hence creating an apprehension of bias. 41. The deponent has further stated that the National Assembly’s status as a formal contradictor to the Applicant in the ongoing High Court Petition disqualified it from conducting a fair or impartial inquiry into the same subject matter. In his view, having already taken an adversarial position before the Court, it could not have acted as a neutral tribunal. He invoked the rule against bias, nemo judex in causa sua, asserting that the inquiry was actuated by an improper motive and weaponized to frustrate the applicant’s legal and commercial interests rather than to pursue a bona fide legislative objective. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16279/eng@2025-10-31 12

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42. 43. He has therefore urged the court to review the National Assembly’s decision and to determine whether there had been: (i) Unconstitutionality or illegality, on account of the Assembly’s alleged misapplication of the law; (ii) Irrationality, in the Wednesbury sense, for having acted in a manner that no reasonable decision-maker could have done; and (iii) Procedural impropriety, in departing from established procedural rules and the principles of natural justice, particularly given the Assembly’s adversarial position in the pending Petition. He has concluded that the respondents had acted outside their legal authority (ultra vires) and urged the court to allow the application as prayed. These grounds were also reiterated in the exparte applicant’s grounds of opposition dated the July 25, 2025 and the replying affidavit sworn on September 15, 2025 in opposition of the 2nd Application. Submissions 44. By consent of both counsel for the parties, the court directed that the applications be canvassed by way of written submissions. Both parties duly complied with the ex-parte applicant filing his written submissions dated October 9, 2025, while the 1st and 2nd respondents filed two sets of submissions, both dated August 21, 2025. Ex-parte Applicant’s Submissions 45. In its submissions, the ex-parte applicant has highlighted only two issues for determination, which are firstly, whether the application dated June 3, 2025 is merited; and secondly, whether the application dated the May 27, 2025 is merited to warrant the granting of the orders sought. 46. On the first issue, the ex-parte applicant has submitted that the 1st and 2nd respondents’ application seeking to set aside the leave granted on May 6, 2025 is both procedurally defective and legally unsustainable. It has been argued that the application was filed belatedly, long after the Applicant had complied with the leave orders by filing the substantive motion. The applicant contends that entertaining such an application at this stage would amount to rewarding the respondents’ indolence and undermine judicial efficiency. 47. In support of the argument that leave already granted should not be set aside save in the clearest of cases, the Applicant has cited the case of Nakumatt Holdings Limited v Commissioner of Value Added Tax [2011] eKLR, where the Court of Appeal held that the power to set aside leave is one to be exercised very sparingly and only in obvious cases where no arguable claim exists. The applicant has also referred to the case of Michael Fordham’s Judicial Review Handbook (3rd Edition), to emphasize that judicial restraint is the norm in setting aside leave already granted. It has thus contended that since the applicant made full and frank disclosure under paragraph 12 of its verifying affidavit, and demonstrated a strong arguable case, this court should decline the respondents’ invitation to vacate the leave and should instead proceed to hear the substantive notice of motion on its merits. 48. Secondly, on whether the threshold for grant of orders of certiorari and prohibition has been met as sought in the application dated the May 27, 2025, it is the applicant’s submission that the National Assembly acted ultra vires, in breach of the doctrine of separation of powers, and in flagrant violation of articles 47, 50, and 165 of the Constitution. Counsel has argued that the National Assembly, through its Committee on Delegated Legislation, usurped the judicial function by purporting to determine https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16279/eng@2025-10-31 13

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the constitutionality and legality of the applicant’s Special Operating Framework Agreement (SOFA). The Committee’s findings that the Agreement was illegal, irregular, and unconstitutional has been said to be a direct encroachment into the exclusive domain of the Judiciary under article 165(3)(d) of the Constitution. 49. The applicant has submitted that the resolution of April 22, 2025 declaring the Agreement null and void was illegal, irrational, and procedurally improper, thereby satisfying the three-fold test for judicial review as articulated in the case of Pastoli v Kabale District Local Government Council & others [2008] 2 EA 300, and Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374. It has been emphasized that illegality arises where a public body acts without jurisdiction or contrary to law; irrationality when a decision defies logic or acceptable moral standards; and procedural impropriety when natural justice is violated, all of which, the applicant argued, were evident in the respondents’ conduct. 50. To demonstrate illegality, the applicant has contended that Parliament’s Committee lacked the constitutional mandate to make a conclusive determination on the legality or constitutionality of an agreement executed under a valid statutory and policy framework. Reliance has been placed on the case of Pharmacy and Poisons Board v George Wanjau & 5 others [2020] eKLR, and the Supreme Court Advisory Opinion No 2 of 2013 (The Speaker of the Senate & another), where it was affirmed that while Parliament enjoys legislative independence, its internal procedures are still subject to judicial scrutiny for compliance with the Constitution. 51. The Applicant has also relied on the case of Republic v National Assembly & 2 others, Ex-parte Retirement Benefits Authority (RBA) & others [2022] KEHC 15587 (KLR) to argue that judicial review is the proper remedy where Parliament exceeds its constitutional remit, emphasizing that the courts remain the ultimate guardians of constitutional supremacy. 52. The ex-parte applicant has further submitted that the 1st and 2nd respondents’ decision was procedurally unfair and violated the provisions of articles 47 and 50 of the Constitution as well as section 4 of the Fair Administrative Action Act, 2015, since the applicant was not notified of the Committee’s deliberations nor afforded a hearing prior to the adoption of the impugned report. 53. Further, the applicant has invoked the doctrine of legitimate expectation, arguing that it had entered into the Special Operating Framework Agreement in good faith and under a clear, governmentsanctioned legal framework, including the Finance Acts of 2018, 2020, and 2022, which provided for the establishment and operation of such agreements. The Applicant’s expectation that the Government and its institutions, including Parliament, would not act in a manner to frustrate or undermine this legally sanctioned framework was legitimate, reasonable, and constitutionally protected. The unilateral decision to nullify the Agreement, without consultation or notice, therefore breached this expectation. 54. The applicant has drawn support from the case of Republic v Judicial Commission of Inquiry into the Goldenberg Affair Ex-parte George Saitoti [2006] eKLR, where it was held that findings or reports that are not impartial, faithful, or fair towards an affected party are amenable to judicial review. It is contended that the Committee’s report was biased and made in bad faith, particularly given that the 2nd respondent was already a party to a pending High Court Petition (No. E464 of 2024) on the same subject matter and had therefore prejudged the issue. 55. The applicant has further contended that the 1st and the 2nd respondents acted irrationally and in bad faith, as evidenced by the suspicious timing of the resolution which was passed barely hours after this Court vacated conservatory orders that had temporarily suspended the Agreement’s implementation. The applicant argues that the National Assembly’s move was a calculated attempt to defeat judicial https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16279/eng@2025-10-31 14

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oversight and to achieve what could not be sustained judicially through Parliamentary process. Reliance has been placed on the case of Roncarelli v Duplessis [1959] 6 DLR (2d) 689, where arbitrary administrative action taken for ulterior purposes was struck down for being malicious and unlawful. 56. On proportionality, the applicant has submitted that the drastic measures adopted by the respondents were grossly disproportionate to any legitimate parliamentary objective. Citing the case of R v Home Secretary Ex-parte Brind [1991] 1 AC 696, counsel has argued that public authorities must adopt measures that are least restrictive and necessary to achieve their purpose. In this case, by halting the implementation of the Agreement and directing State agencies to cease honouring it, the respondents had effectively crippled the Applicant’s multi-billion-shilling investment, leading to business closure, massive job losses, and economic disruption, thereby offending the principle of proportionality. 57. In conclusion, the applicant has submitted that the facts and legal grounds presented meet the threshold for the grant of judicial review remedies. Citing the Court of Appeal decision in the case of Kenya National Examinations Council v Republic Ex-parte Geoffrey Gathenji & others [1997] eKLR, the applicant has urgued that an order of certiorari should issue to quash the impugned resolution of the National Assembly declaring the applicant’s Agreement illegal, irregular, and unconstitutional, and an order of prohibition should issue to restrain the respondents from enforcing or acting upon that resolution or otherwise interfering with the implementation of the Agreement. 1st and 2nd Respondent’s Submissions 58. The 1st and 2nd respondents, filed their written submissions dated August 21, 2025 in opposition to the ex-parte applicant’s notice of motion dated May 27, 2025. They have urged the Court to find that the impugned resolution of the National Assembly was lawfully made in exercise of Parliament’s constitutional and statutory mandate and that the application is fatally defective and devoid of merit. 59. Counsel began by setting out the factual background, explaining that the ex-parte applicant’s challenge arises from the National Assembly’s resolution passed on April 22, 2025 adopting the Report of the Committee on Delegated Legislation. The said Report followed an inquiry into the legality of tax exemptions granted to the Applicant under the Special Operating Framework Agreement (SOFA). The inquiry was triggered by a Statement raised on the floor of the National Assembly on July 31, 2024 by Hon. John Njuguna Kawanjiku, MP, concerning the propriety of the exemptions. The matter was referred to the Committee on Delegated Legislation, which undertook extensive investigations and consultations with relevant stakeholders, including the National Treasury, Ministry of Investments, Trade and Industry, the Kenya Association of Manufacturers, and the ex-parte applicant. 60. The respondents have submitted that, following these deliberations, the Committee established serious procedural and legal deficiencies in the formulation and implementation of the Special Operating Framework Agreement (SOFA). Specifically, the Committee found that the tax exemptions granted to the Applicant were based on guidelines contained in Circular No. 9/2018 issued by the Cabinet Secretary for the National Treasury, which constituted a statutory instrument under section 2 of the Statutory Instruments Act but had not been tabled before the National Assembly for scrutiny and approval as required by section 11 of the said Act. As a result, the Circular and all approvals issued under it were deemed to have been unprocedurally made and therefore void. 61. The Respondents have contended that Parliament, acting through the Committee on Delegated Legislation, was merely executing its legislative oversight function under articles 94 and 95 of the Constitution and section 11 of the Statutory Instruments Act. They maintained that the resolution declaring the Special Operating Framework Agreement (SOFA) unlawful and directing relevant statutory bodies to take action was a lawful exercise of legislative authority, not an administrative or https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16279/eng@2025-10-31 15

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executive action amenable to Judicial Review. It has been submitted that Judicial Review orders such as certiorari or prohibition do not lie against Parliament when performing its legislative functions, which are constitutionally insulated under the doctrine of separation of powers. 62. To reinforce this line of argument, counsel has relied on the decision of the Supreme Court in the case of Speaker of the Senate & another v Attorney-General & another and Law Society of Kenya & 2 others (Amicus Curiae[2013] KESC 7 (KLR), where the Court held that judicial restraint must be observed to avoid interference with Parliament’s internal procedures. They have also cited comparative jurisprudence from the case of Doctors for Life International v Speaker of the National Assembly & others [2006] ZACC 11, where the South African Constitutional Court emphasized that courts must respect the autonomy of legislative bodies and only intervene where there is a clear violation of the Constitution. 63. The respondents have further argued that the Application was fatally defective for failure to annex the impugned decision. They have invoked order 53 rule 7(1) of the Civil Procedure Rules, which requires an applicant seeking an order of certiorari to lodge a verified copy of the decision sought to be quashed. In their view, the Applicant’s omission to produce the resolution or satisfactorily explain its absence deprived this court of a factual and legal basis to exercise its supervisory jurisdiction. They have relied on the Court of Appeal’s decision in Republic v Mwangi S. Kimenyi Ex-parte Kenya Institute for Public Policy and Research Analysis (KIPPRA) [2013], where the court underscored that Judicial Review orders cannot issue against non-existent or unascertained decisions. 64. On the question of sub judice, the respondents submitted that the ex-parte applicant’s reliance on Constitutional Petition No. E464 of 2024 was misplaced. They argued that the doctrine of sub judice under section 6 of the Civil Procedure Act applies strictly to concurrent judicial proceedings and does not bar Parliament from exercising its legislative or oversight mandates. Citing Standing Order 89 of the National Assembly Standing Orders and the High Court decision in the case of Toili & 2 others v Speaker, National Assembly & 2 others [2025] KEHC 1148 (KLR), counsel contended that the sub judice rule in parliamentary context is procedural and discretionary, and the Speaker retains authority to allow discussion of matters that may also be pending before a court where public interest so demands. 65. They further contend that the National Assembly’s consideration of the Statement preceded the filing of the said Petition and that the two processes were materially distinct, the Petition being about a constitutional challenge to legislative provisions, whereas the parliamentary inquiry concerned the validity of guidelines underpinning the Special Operating Framework Agreement (SOFA). Hence, the respondent contends that there was no overlap or prejudice to the judicial process. 66. Finally, the respondents have submitted that the ex-parte applicant was accorded fair administrative action and an opportunity to be heard. It has been averred that the applicant was invited to appear before the Committee on several occasions, was granted an adjournment upon request, and ultimately opted to rely on its written submissions rather than attend the oral hearings. Consequently, the allegation of violation of the provisions under articles 47 or 50 of the Constitution was without foundation. Counsel has cited the Supreme Court decision in the case of John Florence Maritime Services Limited & another v Cabinet Secretary for Transport & Infrastructure & 3 others [2021] KESC 39 (KLR), emphasizing that Judicial Review is not an appeal mechanism and that courts must avoid substituting their Judgment for that of the authority lawfully seized of a matter. 67. In conclusion, the respondents have urged the court to find that the National Assembly acted within its constitutional and statutory mandate, that the ex-parte applicant was accorded procedural fairness, https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16279/eng@2025-10-31 16

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and that the application was incurably defective for failure to annex the impugned decision. They thus pray that the application be dismissed in its entirety with costs to the 1st and 2nd respondents. 68. As regards the second set of submissions made in respect to the application dated June 3, 2025, the respondents commenced their submissions by underscoring the settled legal principle that a litigant who seeks the discretionary relief of this Honourable court must approach it with the utmost candour, good faith, and clean hands. They have cited the dictum of Lord Denning, that “a litigant who comes to court must come with clean hands,” to emphasize that any party who conceals or misrepresents material facts is disentitled from enjoying the court’s equitable and discretionary protection. It has also been submitted that the applicant has deliberately misled the court into granting interim orders by suppressing material information regarding its engagement with the Committee on Delegated Legislation. In essence, the respondents’ argument is that the applicant’s conduct fell far short of the duty of good faith required of a party invoking the court’s Judicial Review jurisdiction. They also argue that the Ex-parte orders were obtained through misrepresentation and suppression of material facts, and that sustaining such orders would amount to perpetuating an abuse of process. They accordingly pray that the court exercises its inherent jurisdiction to preserve the integrity of the judicial process by setting aside the ex-parte orders issued on May 6, 2025 and dismissing the entire proceedings with costs to the respondents. Analysis and Determination 69. Having considered each of the party’s case as captured herein above, the central issue falling for this court’s determination are:a. Whether the ex-parte applicant has made out a sufficient case to warrant grant of the judicial review remedies of certiorari and prohibition as sought; or, b. Whether, as urged by the 1st and 2nd respondents, the proceedings ought to be dismissed for want of merit and for being an abuse of the court process. 70. At the onset, this court has in its mind that judicial review proceedings are concerned with the decisionmaking process and not the merits a decision. Thus, the purpose of the remedy of Judicial Review is to ensure that an individual is given fair treatment by the authority to which he or she has been subjected to. It is not part of that purpose to substitute the opinion of this court for that of the authority constituted by the law to decide the matter in question. The foregoing calls for an examination of the legality, rationality, and procedural propriety of the impugned decision by the National Assembly declaring the Special Operating Framework Agreement (SOFA) illegal, irregular, and unconstitutional, and whether the said decision was made within the bounds of Parliament’s constitutional and statutory mandate. 71. The first ground that has been relied on by the ex-parte applicant in seeking the court to find in its favour is that the National Assembly in which the 2nd respondent herein acted ultra vires its Constitutional mandate. The ex-parte applicant contends that the National Assembly, through its Committee on Delegated Legislation, usurped the role of the Judiciary by purporting to adjudicate upon the constitutionality and legality of the Special Operating Framework Agreement (SOFA) which was executed by authorized representatives of the Government. It was further urged that in declaring the Special Operating Framework Agreement SOFA “illegal, irregular, and unconstitutional,” the National Assembly overstepped its legislative and oversight authority under article 95 of the Constitution, thereby encroaching upon the power and the Jurisdiction of the court contrary to the provisions of article 159(1) and article 165(3)(d) of the Constitution. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16279/eng@2025-10-31 17

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72. I have carefully considered the submissions alongside the respondents’ argument that Parliament was merely exercising its oversight role under article 95(5)(b) of the Constitution, 2010, which empowers it to “exercise oversight over State organs,” and that it was properly moved under Standing Orders No. 44(2)(c) not to adjudicate upon the legality of the agreement, but merely as an expression of concern regarding its fiscal and procedural propriety. 73. This Court finds that there is no doubt that the National Assembly wields broad powers of inquiry and oversight. However, those powers are not unbounded since the principle of separation of powers, which runs throughout the Constitution, requires that while Parliament may deliberate, investigate, and recommend, it cannot purport to make binding legal pronouncements on the legality or constitutionality of instruments. 74. That is a power and mandate reserved for the courts as provided for under article 165(3)(d). In the case of Speaker of the Senate & another v Attorney-General & another; Law Society of Kenya & 2 others (Amicus Curiae) (Advisory Opinion Reference 2 of 2013) [2013] KESC 7 (KLR) (1 November 2013) (Advisory Opinion) (with dissent - NS Ndungu, SCJ), the Supreme Court emphasized that no arm of government is to arrogate to itself powers beyond those given to it by the Constitution, and none should encroach upon the mandate of another. The Superior Court expressed itself as follows: “ Just as Parliament is expected to operate within its constitutional powers as an arm of government so must the Judiciary. The system of checks and balances that prevents autocracy, restrains institutional excesses and prevents abuse of power apply equally to the Executive, the Legislature and the Judiciary. No one arm of government is infallible and all are equally vulnerable to the dangers of acting ultra vires the Constitution. Whereas, the Executive and the Legislature are regularly tempered and safeguarded through the process of regular direct elections by the people, the discipline of an appointed and unelected Judicial arm of Government is largely self-regulatory. The parameters of encroachment on the powers of other arms of government must be therefore clearly delineated, limits acknowledged and restraint fully exercised. It is only through practice of such cautionary measures that the remotest possibility of judicial tyranny can be avoided.” 75. In view of the above cited finding by the Supreme Court, it is apparent that whereas the Parliament in exercise of its legislative authority enjoys the freedom to deliberate and resolve issues of public interest, its oversight powers cannot extend to issuing determinations that have the effect of nullifying lawful acts or instruments, which is a judicial function. This, in this Court’s view, would amount to usurping or encroaching on the power of the Judiciary, which would appear to fly on the face of the doctrine of separation of powers. 76. In the present case, I have gone through the Hansard Record and the Report adopted by the National Assembly on April 22, 2025 and find no doubt left that Parliament went beyond mere deliberation in inquiring into the legality of tax exemptions granted to the applicant under the Special Operating Framework Agreement (SOFA), The Committee on Delegated Legislation explicitly found that the Special Operating Framework Agreement was “illegal, irregular and unconstitutional” which was a definitive conclusion that, in its language and effect, amounted to an adjudication on the legality of the Special Operating Framework Agreement which was premised on the Finance Act, 2020 and the corresponding gazettement which thereafter ensued. In this Court’s view, such a finding, binding in expression and coupled with directions to State agencies to act “in accordance with the resolution,” was neither investigative nor advisory in character. Instead, it was in substance and form, a quasi-judicial determination, and therefore ultra vires Parliament’s oversight function. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16279/eng@2025-10-31 18

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77. As stated by the Court of Appeal in the case of Pharmacy and Poisons Board v George Wang’anga & 5 others [2020] KECA 775 (KLR), " where a public body steps beyond its statutory or constitutional limits, its actions are ultra vires and amenable to Judicial Review." Accordingly, this court finds and holds that in purporting to pronounce the Special Operating Framework Agreement (SOFA) illegal and unconstitutional, the National Assembly through its committee on delegated legislation exceeded its jurisdiction and contravened the principle of separation of powers. 78. The ex-parte applicant has also anchored its case on the doctrine of legitimate expectation, asserting that having entered into the Special Operating Framework Agreement (SOFA) with the Government of Kenya; represented by officers with lawful authority and having invested over Kshs. 10 Billion on the faith of that agreement, it had a legitimate expectation that the Government, including Parliament, would honour and respect that agreement. Nonetheless, the concerns on the legality of the Agreement are issues pending for determination in the High Court Constitutional Petition Number E464 of 2024 – William Mghaa Masengo and Elvis Charo & others v The National Assembly and the Cabinet Secretary for Trade, Investment and Industry & 4 others. The ex-applicant thus contends that the unilateral nullification of the agreement by the National Assembly without consultation or hearing constituted an egregious violation of this doctrine. 79. The principle of legitimate expectation was well articulated by the Supreme court in the case of Communications Commission of Kenya & 5 others v Royal Media Services & 5 others, where it pronounced itself as follows:“ Legitimate expectation would arise when a body, by representation or by past practice, has aroused an expectation that is within its power to fulfil. Therefore, for an expectation to be legitimate, it must be founded upon a promise or practice by public authority that is expected to fulfil the expectation." 80. According to De Smith, Woolf & Jowell, “Judicial Review of Administrative Action” 6th Edn. Sweet & Maxwell page 609:“ A legitimate expectation arises where a person responsible for taking a decision has induced in someone a reasonable expectation that he will receive or retain a benefit of advantage. It is a basic principle of fairness that legitimate expectations ought not to be thwarted. The protection of legitimate expectations is at the root of the constitutional principle of the rule of law, which requires predictability and certainty in government’s dealings with the public.” 81. The same right is also recognized under article 47(1) of the Constitution and section 4 of the Fair Administrative Action Act, 2015, which guarantees every person the right to fair, lawful, and reasonable administrative action. It then follows that legitimate expectation arises where a public authority, by representation or past practice, creates an expectation in an individual that it will act in a certain way, and fairness requires that it be bound by that expectation. As such, this court is persuaded that the Applicant in this case, was entitled to rely on the representations made by the Government through duly authorized officers that the Special Operating Framework Agreement (SOFA) was lawful, binding, and operative for a period of ten years. Therefore, the 2nd respondent’s repudiation of that agreement through its committee on delegated legislation without following the due process to https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16279/eng@2025-10-31 19

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declaring the same illegal, not only undermined the applicant’s legitimate expectation but is also likely to erode confidence in the stability of government commitments, which is a critical tenet of both the rule of law and ethical economic practices. 82. In regard to the issue in this matter, this court is persuaded by the reasoning in the case of Republic v Judicial Commission of Inquiry into the Goldenberg Affair & 2 others ex-parte George Saitoti [2006] KEHC 1412 (KLR), where it was held that findings which unfairly and unjustly impugn a person’s rights, especially without due process, are subject to judicial review. Similarly, the unilateral branding of the Special Operating Framework Agreement (SOFA) as “illegal” without affording the applicant a hearing or an opportunity to defend its validity through the due process of law, and especially when the court is seized with the matter vide the Constitutional Petition No. E464 of 2024 was procedurally unfair and violated Articles 47 and 50(1) of the Constitution. 83. However, for the record, it is apparent that although the Committee invited the applicant to make written submissions and appear before it, the applicant requested a rescheduling of its appearance and eventually opted to rely on its written submissions. The respondents argue that this constituted sufficient compliance with the right to be heard. 84. In this court’s view, the right to fair administrative action is not a mere procedural formality. It requires that the affected party be afforded a meaningful opportunity to be heard before an adverse decision is reached. In the instant case, the Committee’s findings were not merely advisory; they were condemnatory in that they branded the applicant’s agreement as illegal and recommended action against the benefits drawn from the agreement. It was therefore incumbent upon the Committee to have ensured that not only was the applicant invited but also that it was substantively heard on the adverse allegations before any conclusion was drawn. In any event, the committee ought not to have exercised a quasi-judicial function. Hence, this Court finds that the decision by the Committee fell short of the constitutional standard of fairness required under article 47 of the Constitution of Kenya, 2010. 85. This court has also considered the respondents’ contention that the ex-parte applicant’s case is fatally defective for want of annexing the impugned decision of the National Assembly passed on April 22, 2025. It is trite that in Judicial review proceedings, the impugned decision must ordinarily be placed before the Court to enable it ascertain the propriety of the challenged action. However, this requirement is not absolute and must be viewed in context. 86. In the present case, although the ex-parte applicant did not annex a certified copy of the said resolution to its pleadings, the existence and substance of the impugned decision are not in dispute. The same resolution was duly captured in the Hansard record of the National Assembly proceedings of April 22, 2025, which forms part of the record before this Court. Moreover, judicial review is concerned with the process and legality of decision-making rather than the formalities of documentation. It would therefore be overly technical and inconsistent with the spirit of article 159(2)(d) of the Constitution, which requires that courts administer justice without undue regard to procedural technicalities to strike out or discount an otherwise meritorious cause on account of such omission, especially where the substance of the impugned act is clearly discernible from the record. 87. In any event, having already found that the Report of the Committee on Delegated Legislation, which formed the basis of the National Assembly’s resolution, was tainted with procedural improprieties, ultra vires acts, and violation of the principles of fair administrative action, it necessarily follows that any subsequent action, resolution, or decision founded upon that impugned report was equally tainted and legally untenable. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16279/eng@2025-10-31 20

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88. Therefore, from the foregoing analysis, this Court is satisfied that the ex-parte applicant has demonstrated that the decision of the National Assembly declaring its Special Operating Framework Agreement illegal, irregular, and unconstitutional was made ultra vires, in breach of the principles of legitimate expectation, fair administrative action, and the doctrine on separation of powers. As a result, the impugned resolution was therefore unconstitutional, irrational, and procedurally improper within the meaning of Pastoli v Kabale (supra). 89. Consequently, the ex-parte applicant has for reasons forestated met the threshold for the grant of Judicial Review orders and the court accordingly makes the following orders: a. An Order of certiorari is hereby issued to bring into this Court and quash the resolution of the National Assembly passed on April 22, 2025 adopting the Report of the Committee on Delegated Legislation on the inquiry into the tax exemptions under the Special Operating Framework Agreement between the Government of Kenya and Blue Nile Rolling Mills Limited. b. An Order of Prohibition is hereby issued prohibiting the 1st and 2nd respondents, their agents, servants, or assigns from implementing or acting upon the said resolution, or in any way interfering with the implementation of the Special Operating Framework Agreement unless and until the same is lawfully varied, reviewed, or set through a proper and judicious legal process in accordance with the law. c. The notice of motion dated June 3, 2025 filed by the 1st and 2nd respondents is hereby dismissed for want of merit. d. Each party shall bear its own costs of both applications. It is so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 31ST DAY OF OCTOBER, 2025. .............................................. D. O. CHEPKWONY JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16279/eng@2025-10-31 21

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