Roads and Civil Engineering Contractors Association & 1 other v The Honourable Attorney General & 1 other

THE NATIONAL ASSEMBLY ................................................ INTERESTED PARTY JUDGMENT Introduction 1. This judgment concerns a constitutional Petition filed by the Roads and Civil Engineering Contractors Association (RACECA) and the Energy Sector Contractors Association (ESCA) challenging the constitutionality of Sections 167(2) and 175(2), (3), and (4) of the Public Procurement and Asset Disposal Act, 2015, and the Public Procurement and Asset Disposal Regulations, 2020, gazetted via Legal Notice No. 69 of 2020. The Petitioners contend that these provisions violate multiple constitutional and statutory safeguards, particularly the right to access justice, the principle of public participation, and the rule of law. 2. The Petitioners are registered societies whose members actively participate in public procurement processes in Kenya. They challenge the legality and constitutionality of the Public Procurement and Asset Disposal Regulations, 2020, which were gazetted by the 2nd Respondent on 22nd April 2020. The Petitioners argue that the Regulations were enacted without public participation, contravene the Statutory Instruments Act, and impose unconstitutional barriers to justice through excessive security deposits and restrictive timelines for judicial review. 3. The Respondents, through a Replying Affidavit sworn by Dr. Julius Muia on 13th November 2020, defended the Regulations, asserting that due process was followed and that the provisions are necessary to curb frivolous litigation and ensure efficiency in procurement disputes. The Petitioners filed a Further Affidavit rebutting these claims and maintaining that the Regulations are fundamentally flawed and unconstitutional. Petitioner’s Case 4. The Petitioners present a multifaceted constitutional challenge against the Public Procurement and Asset Disposal Regulations, 2020 and related provisions of the parent Act, advancing three primary grounds of invalidity. 5. First, the Petitioners contend that the Regulations were promulgated in complete violation of constitutional and statutory public participation requirements. They assert that the Respondents failed to conduct any meaningful consultations with stakeholders despite the Regulations' profound impact on fundamental rights and economic interests. The Petitioners emphasize that the complete absence of public engagement transforms what should be a democratic process into an executive fiat, fundamentally undermining the constitutional values of transparency and accountability. 6. Second, the Petitioners demonstrate through detailed mathematical calculations that the security deposit requirements create an economically discriminatory justice system. The requirement to deposit 15% of tender value for review applications and 3% for judicial review applications effectively prices justice beyond the reach of ordinary citizens and small businesses. For substantial tenders, these percentages translate into millions of shillings that must be deposited merely to exercise constitutional rights, creating what amounts to economic disenfranchisement. 7. Third, the Petitioners argue that the mandatory 45-day timelines for judicial determination constitute an unconstitutional intrusion into judicial independence and the right to a fair hearing. They emphasize that complex procurement disputes require meticulous examination of voluminous https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19224/eng@2025-12-04 2

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documentation and technical evidence that cannot be reasonably accomplished within such compressed timeframes, ultimately forcing courts to choose between procedural compliance and substantive justice. Respondent’s Case 8. The Respondents defend the impugned provisions through a Replying Affidavit that offers generalized assertions without substantive particulars. They claim that stakeholder consultations were conducted but provide no details regarding dates, participants, or methodology. The Respondents justify the security deposits as necessary deterrents against frivolous litigation but present no empirical evidence demonstrating the prevalence of such litigation or the proportionality of the measures adopted. 9. Regarding the temporal constraints, the Respondents offer no substantive justification for the 45day requirement, apparently considering it self-evident that complex legal disputes can be adequately determined within this timeframe. They completely ignore the practical realities of litigation and the constitutional imperative of delivering substantive justice. 10. The Petition was canvassed by way of written submissions and only the Petitioners complied by filing their written submissions. petitioner’s submissions 11. The Petitioners submit that the complete absence of public participation renders the Regulations constitutionally infirm. Relying on Okiya Omtatah Okotii v County Government of Kiambu [2018] eKLR, they argue that public participation must be both quantitatively and qualitatively meaningful, providing citizens with adequate information and opportunity to influence outcomes. The Respondents' failure to provide any particulars of consultations demonstrates blatant disregard for constitutional mandates. 12. Regarding the security deposits, the Petitioners invoke Al Ghurair Printing and Publishing LLC v Coalition for Reforms and Democracy & 2 others [2017] eKLR to emphasize that procurement dispute mechanisms must remain accessible to all citizens regardless of economic status. They argue that the percentage-based deposits are grossly disproportionate and lack rational connection to the stated objective of preventing frivolous litigation. The existing legal framework already provides adequate safeguards through cost sanctions and summary dismissal procedures. 13. Concerning the temporal constraints, the Petitioners rely on Transnational Computer Technology Limited v Attorney General & Another [2023] KEHC 3661 (KLR) to argue that the 45-day timelines constitute an unconstitutional intrusion into judicial independence. They emphasize that complex procurement disputes require sufficient time for proper consideration, and artificial deadlines undermine the quality of justice and violate the right to a fair hearing under Article 50(1). Respondent’s Submissions 14. The Respondents' complete failure to file written submissions despite the gravity of the constitutional issues raised demonstrates a concerning disregard for their obligation to provide compelling justifications for limitations on fundamental rights. Issues For Determination 15. The Court identifies the following four principal issues that require determination in this matter: https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19224/eng@2025-12-04 3

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i. Whether the process leading to the enactment of the Public Procurement and Asset Disposal Regulations, 2020 complied with the constitutional and statutory requirements of public participation, transparency, and accountability; ii. Whether the security deposit requirements established under Sections 167(2) and 175(2) of the Public Procurement and Asset Disposal Act, 2015, and operationalized through Regulations 204 and 222 of the 2020 Regulations, violate the right to access justice guaranteed under Articles 48 and 50(1) of the Constitution; iii. Whether the temporal constraints imposed on the judiciary under Sections 175(3) and (4) of the Act constitute an unconstitutional infringement on judicial independence and the right to a fair hearing; iv. Whether the Regulations comply with the substantive and procedural requirements of the Statutory Instruments Act, 2013, particularly regarding parliamentary scrutiny and the principles governing subsidiary legislation. Analysis Of Issues Whether the process leading to the enactment of the Public Procurement and Asset Disposal Regulations, 2020 complied with the constitutional and statutory requirements of public participation, transparency, and accountability 16. The constitutional requirement of public participation represents a fundamental pillar of Kenya's democratic architecture, serving as both a procedural safeguard and a substantive manifestation of popular sovereignty. The Petitioners' contention that the Public Procurement and Asset Disposal Regulations, 2020 were promulgated without meaningful public participation engages not merely technical compliance but the very essence of constitutional governance under Articles 10, 118, 201, and 232 of the Constitution. 17. The government must provide the public with information to enable them to make meaningful contributions. In Legal Advice Centre & 2 others v County Government of Mombasa & 4 others [2018] KECA 381 (KLR), the court observed that: “ Public participation should always be real and not treated as a mere formality for the purposes of fulfilling the constitutional requirement. It is not a public relations exercise. See Robert N. Gakuru & Others vs. Governor Kiambu County & 3 others (supra). Whether the mode or degree of public participation is adequate can only be determined on a case by case basis. See this Court’s decision in Independent Electoral and Boundaries Commission (IEBC) vs. National Super Alliance (NASA) Kenya & 6 others [2017] eKLR. This position was aptly set out by a three Judge bench of the High Court in Institute of Social Accountability & Another vs. National Assembly & 4 others [2015] eKLR in the following manner: “The issue as to whether there was public participation is not merely a matter of form but one of substance. The court must look at the process to determine whether it meets constitutional muster.” 18. The Petitioners mounted a formidable challenge against the legitimacy of the regulatory process, arguing that the complete absence of demonstrable public consultation violated multiple constitutional imperatives. They emphasized that the Regulations would fundamentally alter procurement dispute resolution mechanisms, imposing substantial financial burdens that would https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19224/eng@2025-12-04 4

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inevitably affect a wide spectrum of stakeholders across the Kenyan economy. The Petitioners correctly invoked the principle established in Okiya Omtatah Okotii v County Government of Kiambu [2018] eKLR, where the Court articulated that public participation must be both quantitatively and qualitatively meaningful, requiring adequate information dissemination, reasonable consultation periods, and genuine consideration of public views. They further relied on Robert N. Gakuru & Others v County Government of Kiambu [2014] eKLR, where the Court emphasized that public participation cannot be reduced to a mere formality but must constitute real engagement that allows citizens to influence outcomes. 19. The Respondents' defence, as articulated in the Replying Affidavit of Dr. Julius Muia, presented a starkly inadequate response to these serious allegations. The affidavit contained vague assertions about stakeholder consultations but provided no particulars regarding the dates, venues, participants, or methodology of these consultations. Crucially, the Respondents failed to demonstrate how the public was notified of the proposed Regulations, what information was made available to facilitate informed participation, or how public input was incorporated into the final regulatory framework. This evidentiary vacuum is particularly concerning given the Court's jurisprudence in British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties); Mastermind Tabacco Kenya Limited (Affected Party) [2019] KESC 15 (KLR), which established that the state bears the affirmative duty to demonstrate compliance with public participation requirements through concrete evidence. In arriving at the above conclusion, the Supreme Court set out the principles as follows: “ Consequently, while Courts have pronounced themselves on this issue, in line with this Court’s mandate under section 3 of the Supreme Court Act, we would like to delimit the following framework for public participation: Guiding Principles for public participation i. a constitutional principle under article 10(2) of the Constitution, public participation applies to all aspects of governance. ii. The public officer and or entity charged with the performance of a particular duty bears the onus of ensuring and facilitating public participation. iii. The lack of a prescribed legal framework for public participation is no excuse for not conducting public participation; the onus is on the public entity to give effect to this constitutional principle using reasonable means. iv. Public participation must be real and not illusory. It is not a cosmetic or a public relations act. It is not a mere formality to be undertaken as a matter of course just to ‘fulfill’ a constitutional requirement. There is need for both quantitative and qualitative components in public participation. v. Public participation is not an abstract notion; it must be purposive and meaningful. vi. Public participation must be accompanied by reasonable notice and reasonable opportunity. Reasonableness will be determined on a case to case basis. vii. Public participation is not necessarily a process consisting of oral hearings, written submissions can also be made. The fact that someone was not heard is not enough to annul the process. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19224/eng@2025-12-04 5

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viii. Allegation of lack of public participation does not automatically vitiate the process. The allegations must be considered within the peculiar circumstances of each case: the mode, degree, scope and extent of public participation is to be determined on a case to case basis.” 20. The Court's analysis must further consider the context in which these Regulations were promulgated. The COVID-19 pandemic, while presenting logistical challenges, did not absolve the state from its constitutional obligations. If anything, the pandemic heightened the need for innovative approaches to ensure inclusive participation through digital platforms and extended consultation periods. The Respondents' failure to adapt their consultation methods during this period demonstrates a concerning disregard for constitutional imperatives. Technological constraints cannot justify the circumvention of constitutional processes. 21. Moreover, the nature of the Regulations demanded enhanced public participation given their profound implications for access to justice. The security deposit requirements established under Regulations 204 and 222 would inevitably affect small and medium enterprises, civil society organizations, and individual citizens seeking to challenge procurement decisions. The principle established in Republic v The Attorney General & Another ex parte Hon. Francis Chachu Ganya JR Misc. App. No. 374 of 2012 requires that affected persons must have adequate opportunity to comment on proposed measures that would impact their fundamental rights. The Respondents' failure to ensure such participation constitutes a fundamental breach of constitutional trust. 22. The right to participate in governance processes must be real and not illusory. Given these detailed requirements set by the laws that have been enacted to give effect to the constitutional requirement of public participation, I am in agreement with the decision by Odunga J. in Robert N. Gakuru & Others vs Governor Kiambu County & 3 Others (supra) wherein the learned Judge while relying on the South African Constitutional Court’s decision in Doctors for Life International vs. Speaker of the National Assembly and Others ,(CCT12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC),explored in great detail what is required for effective public participation as follows: 75. “In my view public participation ought to be real and not illusory and ought not to be treated as a mere formality for the purposes of fulfilment of the Constitutional dictates. It is my view that it behoves the County Assemblies in enacting legislation to ensure that the spirit of public participation is attained both quantitatively and qualitatively. It is not just enough in my view to simply “tweet” messages as it were and leave it to those who care to scavenge for it. The County Assemblies ought to do whatever is reasonable to ensure that as many of their constituents in particular and the Kenyans in general are aware of the intention to pass legislation and where the legislation in question involves such important aspect as payment of taxes and levies, the duty is even more onerous. I hold that it is the duty of the County Assembly in such circumstances to exhort its constituents to participate in the process of the enactment of such legislation by making use of as may fora as possible such as churches, mosques, temples, public barazas national and vernacular radio broadcasting stations and other avenues where the public are known to converge to disseminate information with respect to the intended action. Article 196(1)(b) just like the South African position requires just that. Dealing with the issue I wish to reiterate what was held in Doctors for Life International vs. Speaker of the National Assembly and Others (supra)to the effect that: “The phrase “facilitate public involvement” is a broad concept, which relates to the duty to ensure public participation in the law-making process. The key words in this phrase are “facilitate” and “involvement”. To “facilitate” means to “make https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19224/eng@2025-12-04 6

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easy or easier”, “promote” or “help forward”. The phrase “public involvement” is commonly used to describe the process of allowing the public to participate in the decision-making process. The dictionary definition of “involve” includes to “bring a person into a matter” while participation is defined as “[a] taking part with others (in an action or matter); . . . the active involvement of members of a community or organization in decisions which affect them”. According to their plain and ordinary meaning, the words public involvement or public participation refer to the process by which the public participates in something. Facilitation of public involvement in the legislative process, therefore, means taking steps to ensure that the public participate in the legislative process. That is the plain meaning of section 72(1)(a). This construction of section 72(1)(a) is consistent with the participative nature of our democracy. As this Court held in New Clicks, “[t]he Constitution calls for open and transparent government, and requires public participation in the making of laws by Parliament and deliberative legislative assemblies.” The democratic government that is contemplated in the Constitution is thus a representative and participatory democracy which is accountable, responsive and transparent and which makes provision for the public to participate in the law-making process.” The court further stated: “ Merely to allow public participation in the law-making process is, in the prevailing circumstances, not enough. More is required. Measures need to be taken to facilitate public participation in the law-making process. Thus, Parliament and the provincial legislatures must provide notice of and information about the legislation under consideration and the opportunities for participation that are available. To achieve this, it may be desirable to provide public education that builds capacity for such participation. Public involvement in the legislative process requires access to information and the facilitation of learning and understanding in order to achieve meaningful involvement by ordinary citizens…. [the Assembly] should create conditions that are conducive to the effective exercise of the right to participate in the law-making process. This can be realised in various ways, including through road shows, regional workshops, radio programs and publications aimed at educating and informing the public about ways to influence Parliament, to mention a few……It is implicit, if not explicit, from the duty to facilitate public participation in the lawmaking process that the Constitution values public participation in the lawmaking process.” 23. The constitutional framework for public participation extends beyond mere consultation to encompass the principles of transparency and accountability articulated in Article 10. Constitutional processes must be conducted in a manner that promotes public confidence in governance institutions. The opaque manner in which these Regulations were promulgated undermines this constitutional objective and erodes public trust in the procurement system. The conditioning medium within which these functions have to be conducted, is constituted by the national values and principles outlined in article 10 of the Constitution: in particular, the rule of law; participation of the people; equity; inclusiveness; human rights; non-discrimination; good governance; integrity; transparency and accountability. It is to be noted that, the very essence of checks-and-balances touches on the principles of public participation, inclusiveness, integrity, accountability and transparency; and the performance of the constitutional and statutory functions is to be in line with values of integrity, transparency, good governance and accountability. 24. The Respondents' argument that the Regulations were subsequently approved by the National Assembly does not cure the constitutional defect in the initial formulation process. The principle of https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19224/eng@2025-12-04 7

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constitutional continuity requires compliance at every stage of the legislative process, not merely at the point of ratification. 25. Furthermore, the Statutory Instruments Act, 2013 establishes specific requirements for public consultation that complement constitutional mandates. Section 5 of the Act requires regulationmaking authorities to conduct "appropriate consultations" with affected persons, particularly where statutory instruments may have substantial effects on business or restrict competition. The Respondents' failure to provide any evidence of compliance with these statutory requirements compounds the constitutional violations. 26. The Court therefore finds that the Petitioners have established a clear violation of public participation requirements. The Respondents' skeletal assertions, unsupported by concrete evidence, cannot discharge the state's weighty burden to demonstrate compliance with constitutional and statutory mandates. The complete absence of meaningful public participation in the formulation of the Regulations renders them constitutionally infirm and incapable of legal operation. 27. This finding is consistent with the broader constitutional architecture established in Articles 1 and 2, which vest sovereign power in the people and establish the Constitution as the supreme law. Public participation represents the practical manifestation of popular sovereignty, ensuring that the people remain the ultimate authors of the laws that govern them. The Respondents' approach to regulatory formulation constitutes a regression to pre-constitutional practices that the 2010 Constitution expressly sought to transcend. 28. The Court accordingly declares that the Public Procurement and Asset Disposal Regulations, 2020 were promulgated in violation of constitutional and statutory public participation requirements and are therefore null and void ab initio. This finding necessarily invalidates the entire regulatory framework, as the absence of public participation infects the entire process rather than particular provisions. Whether the security deposit requirements established under Sections 167(2) and 175(2) of the Public Procurement and Asset Disposal Act, 2015, and operationalized through Regulations 204 and 222 of the 2020 Regulations, violate the right to access justice guaranteed under Articles 48 and 50(1) of the Constitution 29. The constitutional right of access to justice represents the foundational gateway through which all other rights find practical enforcement and protection. The Petitioners' challenge to the security deposit requirements under Sections 167(2) and 175(2) of the Public Procurement and Asset Disposal Act and Regulations 204 and 222 engages the very essence of Articles 48 and 50(1) of the Constitution, which guarantee every person the right to access justice and to have disputes resolved through fair public hearings. 30. The Petitioners advanced a compelling argument that the imposition of security deposits amounting to 15% of the tender value for review applications and 3% for judicial review applications creates an economically prohibitive barrier to justice. They demonstrated through mathematical precision that for tenders of substantial value, these requirements would force litigants to deposit millions of shillings merely to exercise their right to challenge procurement decisions. This financial barrier, they argued, effectively creates a two-tiered justice system: one for wealthy corporations and another for ordinary citizens and small businesses, thereby violating the principle of equal protection under the law. 31. The Respondents' defence, as contained in the Replying Affidavit, offered the simplistic justification that these deposits were necessary to prevent frivolous litigation. However, this argument collapses under constitutional scrutiny for multiple reasons. First, the Respondents provided no empirical https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19224/eng@2025-12-04 8

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evidence demonstrating that frivolous procurement litigation constitutes such a pervasive problem as to warrant such draconian measures. Second, the existing legal framework already provides adequate safeguards against abuse of court process through established mechanisms such as summary dismissal procedures, cost sanctions, and security for costs orders where appropriate. 32. The Court's analysis must begin with the fundamental principle established in Al Ghurair Printing and Publishing LLC v Coalition for Reforms and Democracy & 2 others [2017] eKLR, where the Court of Appeal emphatically stated that procurement dispute mechanisms must remain accessible to all citizens regardless of economic status. The Court further emphasized that any requirements that have the effect of limiting access to justice must be proportionate and reasonably necessary. The security deposits in question, particularly the 15% requirement, fail this proportionality test spectacularly. 33. The economic reality faced by small and medium enterprises in Kenya renders these requirements particularly oppressive. Many Kenyan businesses operate with limited capital reserves, and requiring them to tie up significant portions of their working capital in litigation deposits would cripple their operations, regardless of the merits of their legal claims. This creates a chilling effect that prevents legitimate challenges to procurement decisions, thereby undermining the very purpose of the review mechanisms. 34. Furthermore, the security deposit requirements violate the principle established in Geoffrey Andare v Attorney General & 2 others [2016] eKLR, where the Court emphasized that legal requirements must be sufficiently clear and certain to allow citizens to regulate their conduct. The open-ended nature of the percentage-based deposits creates uncertainty and arbitrariness, as litigants cannot reasonably predict the financial commitment required to pursue their rights. In arriving at the above conclusion, the Court was guided by the words of the court in Sunday Times vs United Kingdom Application No 65 38/74 para 49, in which the European Court of Human Rights stated as follows; “ (A) norm cannot be regarded as “law” unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able- if need be with appropriate advice- to foresee, to a degree that is reasonable in the circumstances, the consequences which a given situation may entail.” 35. The Court must also consider the cumulative effect of these requirements in light of Article 20(4) of the Constitution, which mandates that the Bill of Rights be interpreted in a manner that promotes the values of an open and democratic society. The economic barriers created by these provisions fundamentally undermine the democratic nature of our society by reserving access to justice for the economically privileged. 36. The temporal constraints imposed under Sections 175(3) and (4) further compound the constitutional violations by creating an environment where justice is rushed rather than thorough. The requirement that the High Court and Court of Appeal must determine complex procurement disputes within 45 days each shows a fundamental misunderstanding of judicial processes. As observed in Judicial Review No. 201 of 2017, Peesam Limited v Public Procurement Administration Review Board & 2 others [2018] KEHC 7658 (KLR), complex procurement cases often involve voluminous documentation, technical evidence, and sophisticated legal arguments that require careful consideration. These artificial timelines effectively force courts to choose between constitutional compliance and substantive justice. In making the observation, the Court stated thus; “ 69. It is true that the above issue of the mandatoriness of Section 175 (3) of the Public Procurement and Asset Disposal Act on timelines for hearing and determining Judicial Review application within 45 days from the date of filing https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19224/eng@2025-12-04 9

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of the application; and Section 8 of the Fair Administrative Action Act, 2015 on the timelines for determining proceedings under the Act have been subject of several Divisions including JR 502 and 503 of 2016 Republic vs Public Procurement Administrative Review Board & Another exparte Kleen Homes Security Services Ltd, citing and relying heavily on the Selesti Sistemi Integrati case where the court held that courts frown upon provisions like Section 175(3) and (5) of the Act in order to preserve the jurisdiction of the court and that the provisions of the Public Procurement and Asset Disposal Act are not to be compared to the Elections Act which is grounded on Article 87(1) of the Constitution on timely disposal of electoral disputes which provisions of the Constitution are hinged on democratic governance and as such, the timelines are contemplated in the Constitution on account of the nature of electoral disputes and historical perspectives.” 37. The Respondents' failure to provide any empirical justification for these specific timelines renders them arbitrary and unreasonable. The principle established in Kenya Bus Service Ltd & Another v Minister For Transport & 2 Others [2012] eKLR requires that limitations on constitutional rights must be rationally connected to their stated purpose. The Respondents have not demonstrated how these specific timelines serve the purpose of preventing frivolous litigation while preserving the quality of justice. 38. Moreover, these temporal constraints represent an unconstitutional intrusion into judicial independence. The Supreme Court's decision in Chitembwe v Tribunal Appointed to Investigate Into the Conduct of the Hon. Justice Said Juma Chitembwe, Judge of the High Court [2023] KESC 114 (KLR) emphasized that the judiciary must retain control over its processes to ensure the proper administration of justice. While Parliament may establish reasonable timeframes, it may not impose such rigid constraints as to undermine the judiciary's ability to perform its constitutional function. The court in arriving at the conclusion, stated as follows: “Under Article 172 of the Constitution, some of the functions of the JSC include the promotion and facilitation of the independence and accountability of the judiciary and the efficient, effective, and transparent administration of justice.” 39. The combined effect of the financial barriers and temporal constraints creates a perfect storm that effectively denies access to justice for all but the most resource-rich litigants. This outcome is fundamentally incompatible with the constitutional vision of a society based on human dignity, equality, and freedom articulated in Article 10. 40. The Court therefore finds that the security deposit requirements under Sections 167(2) and 175(2) of the Act and Regulations 204 and 222 violate Articles 48 and 50(1) of the Constitution by creating unjustifiable economic barriers to justice. Similarly, the temporal constraints under Sections 175(3) and (4) violate judicial independence and the right to a fair hearing. These provisions are declared unconstitutional, null, and void to the extent of their inconsistency with the Constitution. 41. This finding is consistent with the broader constitutional philosophy that views access to justice not as a privilege but as a fundamental right essential for the protection of all other rights. The Respondents' attempt to balance this right against administrative convenience represents a fundamental misunderstanding of the hierarchical nature of constitutional values. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19224/eng@2025-12-04 10

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Whether the temporal constraints imposed on the judiciary under Sections 175(3) and (4) of the Act constitute an unconstitutional infringement on judicial independence and the right to a fair hearing 42. The relevant principles that guide this Court in making a determination of this issue were set out in Institute of Social Accountability & another vs National Assembly & 4 others [2015] eKLR as follows: “ 56. First, this Court is enjoined under Article 259 of the Constitution to interpret the Constitution in a manner that promotes its purposes, values and principles, advances the rule of law, human rights and fundamental freedoms in the Bill of Rights and that contributes to good governance. In exercising its judicial authority, this Court is obliged under Article 159(2)(e) of the Constitution to protect and promote the purpose and principles of the Constitution. 57. Second, there is the general presumption that every Act of Parliament is constitutional and the burden of proof lies on any person who alleges otherwise (see Ndyanabo v Attorney General of Tanzania [2001] EA 495). We therefore reiterate that this Court will start by assuming that the CDF Act 2013 is constitutional and valid unless the contrary is established by the petitioners. 58. Third, in determining whether a Statute is constitutional, the Court must determine the object and purpose of the impugned statute for it is important to discern the intention expressed in the Act itself (see Murang’a Bar Operators and Another v Minister of State for Provincial Administration and Internal Security and Others, Nairobi Petition No. 3 of 2011 [2011] eKLR, Samuel G. Momanyi v Attorney General and Another (supra)). Further, in examining whether a particular statutory provision is unconstitutional, the court must have regard not only to its purpose but also its effect. The Canadian Supreme Court in the R v Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 enunciated this principle as follows; Both purpose and effect are relevant in determining constitutionality; either an unconstitutional purpose or an unconstitutional effect can invalidate legislation. All legislation is animated by an object the legislature intends to achieve. This object is realized through impact produced by the operation and application of the legislation. Purpose and effect respectively, in the sense of the legislation’s object and its ultimate impact, are clearly linked, if not indivisible. Intended and achieved effects have been looked to for guidance in assessing the legislation’s object and thus the validity. 59. Fourth, the Constitution should be given a purposive, liberal interpretation. The Supreme Court in Re The Matter of the Interim Independent Electoral Commission Constitutional Application (supra) at para. 51 adopted the words of Mohamed A J in the Namibian case of State v Acheson ,1991(20 SA 805, 813) where he stated that; the Constitution of a nation is not simply a statute which mechanically defines the structures of government and the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19224/eng@2025-12-04 11

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relationship government and the governed. It is a mirror reflecting the “national soul” the identification of ideas and ..... aspirations of a nation, the articulation of the values bonding its people and disciplining its government. The spirit and tenor of the Constitution must, therefore preside and permeate the process of judicial interpretation and judicial discretion. 60. Lastly and fundamentally, it is the principle that the provisions of the Constitution must be read as an integrated whole, without any one particular provision destroying the other but each sustaining the other (see Tinyefuza v Attorney General of Uganda Constitutional Petition No. 1 of 1997 (1997 UGCC 3)).” 43. The constitutional framework governing the relationship between the judiciary and other arms of government recognizes that while judicial independence is sacrosanct, Parliament retains the authority to establish reasonable procedural frameworks for the administration of justice. The temporal constraints prescribed under Sections 175(3) and (4) of the Public Procurement and Asset Disposal Act represent a legitimate exercise of legislative authority aimed at achieving expeditious resolution of procurement disputes, which are often time-sensitive matters affecting public interest and national development. 44. The Supreme Court of Kenya in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] KESC 53 (KLR) established that constitutional interpretation must be holistic and purposive, recognizing that different constitutional values may sometimes require balancing. The Court emphasized that the Constitution does not establish absolute rights but rather requires reasonable limitations that are justifiable in an open and democratic society. The 45-day timelines for determining procurement disputes must be viewed within this context of balancing the right to expeditious justice against other competing constitutional values. 45. The Court of Appeal in Mongare v Attorney General & 3 others [2014] KECA 887 (KLR) provided further guidance on the principle of judicial independence, clarifying that while Article 160 of the Constitution protects judicial authority from improper influence, it does not preclude Parliament from establishing reasonable procedural requirements. The Court, while citing the decision of the Court in Minister of Defence, Nambia v Mwandinghi (1992) 2 SA 355) stated: “ The independence clause” does not accord independent “carte blanche to act or conduct on whim; independence is, by design, configured to the execution of their mandate, and performance of their functions as prescribed in the Constitution and the law. For due operation in the matrix, “independence” does not mean “detachment”, “isolation” or “disengagement” from other players in public governance.” 46. The nature of procurement disputes particularly justifies these temporal constraints. Procurement matters often involve urgent public interest considerations where delayed resolution can cause significant financial losses and disrupt essential public services. The 45-day timeframe represents a reasonable legislative judgment aimed at balancing the need for thorough judicial consideration with the imperative of timely dispute resolution. 47. The Respondents correctly argue that these timelines are not absolute prohibitions but rather directional guidelines that respect judicial discretion. This court acknowledges that statutory timelines serve important public interest objectives and do not necessarily violate judicial independence when they allow for reasonable exercise of judicial discretion in appropriate cases. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19224/eng@2025-12-04 12

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48. Furthermore, the legislative history of the Public Procurement and Asset Disposal Act reveals that these timelines were designed to address specific concerns about prolonged procurement disputes that were undermining public procurement processes. The Act under Section 3 sets out the principles of public procurement and clearly recognizes the particular need for expedition in procurement matters. Procurement disputes by their nature require swift resolution to ensure value for public funds and continuity of public services. 49. The provisions of Section 175 of the Act have been the subject of interpretation by Courts in many cases. For example, in the case of Aprim Consultants vs. Parliamentary Service Commission & Another [2021] KECA 1090 (KLR) the Court expressed as follows: “ A perusal of section 175 of the Act reveals Parliament’s unmistakable intention to constrict the time taken for the filing, hearing and determination of public procurement disputes in keeping with the Act’s avowed intent and object of expeditious resolution of those disputes. Parliament was thus fully engaged and intentional in setting the timelines in the Section. But it did not stop there. In one of the rarer instances where all discretion is totally shut out, Parliament expressly enacted a consequence to follow default or failure to file or to decide within the prescribed times: the decision of the Board would crystallize and he invested with finality.” 50. See also ADK Technologies Limited in Consortium with Computer Technologies Limited vs. Public Procurement Administrative Review Board & 4 Others (Civil Appeal E598 of 2021) [2022] KECA 407 (KLR), and in the case of The Consortium of TSK Electronica Y Electricdad S.A. & Ansaldoenergia vs. PPARB & 3 Others, CA. No. E012 of 2022 the Court emphasised that: “ These timelines are cast in stone and cannot be varied. The strict time frames under this section underscore the intention of Parliament to ensure that disputes relating to Public Procurements and Assets Disposal are disposed of expeditiously.” 51. Indeed, the Court in the case of Kenya Ports Authority vs. Public Procurement Administrative Board & 2 Others (Civil Appeal 347 of 2017) [2024] KECA 1099 (KLR) when invited to pronounce itself on the question whether section 175(3) and (5) of the Act is unconstitutional for prescribing timelines within which the High Court and the Court of Appeal must determine public procurement disputes, the Court was categorical that: “ In a constitutional dispensation like ours that expressly guarantees its citizens that “justice shall not be delayed” (see article 159(2)(b) of the Constitution ), it is not readily apparent to us how a clause that seeks to ensure disputes touching on a critical aspect of the national economy are resolved within stipulated time, can be said to be unconstitutional.” 52. The constitutional framework itself acknowledges the need for expedition in certain types of litigation. Article 159(2)(b) of the Constitution specifically mandates that justice shall not be delayed, while various statutes establish timelines for different types of proceedings. 53. The Petitioners' concerns about complex cases requiring more time are adequately addressed by the judiciary's inherent power to manage its processes. As the Court of Appeal noted in Tarmal Wire Product Ltd v Fredrick Mecha Nyarike [2020] KEHC 8088 (KLR), courts retain discretion to extend https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19224/eng@2025-12-04 13

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timelines where necessary to ensure substantive justice, provided such extensions are properly justified. In arriving at the position, the court stated thus: “ The reason conveyed in the affidavit that warranted the delay was on the time taken to seek instructions to file an appeal from the appellant. So in the instant application, I must ask whether to extend time is in order to achieve justice depending on the peculiar circumstances of the case. It is however settled that in administration of justice time is of essence and accordingly, monitoring and compliance with scheduled timelines in the statute should thus be observed unless sufficient cause is shown for non-compliance. In the persuasive authority of Ralnam v Cumarasamiy {1965} 1WLR the court held: “The rules of court must, prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material on which the court can exercise its discretion if the Law were otherwise, a party in breach would have an unqualified right to an extension of time, which would defeat the purpose of the rules which is to provide a time table for the conduct of litigation.” 54. The Respondents have demonstrated that the 45-day timeframe is consistent with international best practices in procurement regulation. Comparative jurisprudence from other jurisdictions with similar constitutional frameworks shows that reasonable timelines for procurement disputes are widely accepted as necessary for maintaining the integrity of public procurement systems. 55. The Court therefore finds that Sections 175(3) and (4) of the Act represent a reasonable and proportionate limitation that serves the important public interest of ensuring expeditious resolution of procurement disputes. These provisions do not violate judicial independence or the right to a fair hearing but rather give effect to the constitutional principle that justice shall not be delayed. The provisions are declared constitutional and valid. 56. This finding is consistent with the constitutional scheme that envisions collaboration between the arms of government in the administration of justice, while respecting the distinct roles and responsibilities of each arm. The temporal constraints strike an appropriate balance between the need for judicial independence and the requirement for efficient dispute resolution in procurement matters. Whether the Regulations comply with the substantive and procedural requirements of the Statutory Instruments Act, 2013, particularly regarding parliamentary scrutiny and the principles governing subsidiary legislation 57. The framework for subsidiary legislation in Kenya represents a carefully calibrated system of checks and balances designed to prevent executive overreach and ensure democratic accountability. The Petitioners' challenge regarding non-compliance with the Statutory Instruments Act, 2013 raises fundamental questions about the rule of law and constitutional governance. 58. The Petitioners presented compelling evidence that the Public Procurement and Asset Disposal Regulations, 2020 were promulgated in violation of multiple provisions of the Statutory Instruments Act. They demonstrated that the Respondents failed to comply with Section 5 regarding public consultation, Section 11 concerning tabling before Parliament, and Section 13 relating to compliance with constitutional principles. This systematic non-compliance, they argued, renders the Regulations null and void ab initio. 59. The Respondents' defence in the Replying Affidavit was notably silent on these specific statutory violations, choosing instead to make general assertions about the validity of the regulatory process. This https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19224/eng@2025-12-04 14

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failure to address the specific statutory mandates is particularly telling given the detailed requirements established by the Statutory Instruments Act. 60. The requirement under Section 11 that statutory instruments must be tabled before Parliament within seven sitting days serves as a crucial democratic safeguard ensuring legislative oversight of executive law-making. The Respondents' failure to demonstrate compliance with this requirement represents a serious violation of the constitutional principle of accountability. the Constitution establishes a system of inter-institutional accountability that must be scrupulously observed. 61. Furthermore, Section 13 of the Statutory Instruments Act requires that subsidiary legislation must conform to multiple constitutional principles, including respect for fundamental rights and freedoms. The Court's analysis in issues 2 and 3 has already established that the Regulations violate several constitutional rights, thereby compounding the statutory violations under the Statutory Instruments Act. 62. The cumulative effect of these statutory violations is to render the Regulations legally infirm and incapable of producing legal consequences. The Court's decision in Okoiti v Cabinet Secretary, National Treasury & 5 others [2025] KEHC 4444 (KLR) established that subsidiary legislation that fails to comply with statutory requirements is void ab initio and cannot be cured by subsequent parliamentary approval. 63. The Court therefore finds that the Public Procurement and Asset Disposal Regulations, 2020 were promulgated in violation of the Statutory Instruments Act, 2013 and are accordingly declared null and void. This finding reinforces the constitutional principle that the Executive must exercise its delegated legislative authority within strict statutory boundaries and in accordance with democratic accountability mechanisms. 64. The Petitioners have successfully demonstrated multiple constitutional and statutory violations in the promulgation and substance of the Public Procurement and Asset Disposal Regulations, 2020 and related provisions of the parent Act. The Respondents' defence has failed to provide sufficient evidence or legal arguments to justify the encroachments on fundamental rights and constitutional principles. 65. Accordingly, the Court makes the following final orders: a. A declaration issues that the Public Procurement and Asset Disposal Regulations, 2020 published through Legal Notice No. 69 of 2020 are unconstitutional, null, and void ab initio for violating Articles 10, 35, 48, 50(1), 118, 201, and 232 of the Constitution and Sections 5, 11, and 13 of the Statutory Instruments Act, 2013. b. A declaration issues that Sections 167(2) and 175(2) of the Public Procurement and Asset Disposal Act, 2015 are unconstitutional to the extent that they impose security deposits that hinder access to justice and violate the right to a fair hearing under Articles 48 and 50(1) of the Constitution. c. A declaration issues that Sections 175(3) and (4) of the Public Procurement and Asset Disposal Act, 2015 are constitutional and valid, representing reasonable and proportionate limitations that serve the important public interest of ensuring expeditious resolution of procurement disputes without violating judicial independence or the right to a fair hearing. d. An order of certiorari issues removing into this Court and quashing the Public Procurement and Asset Disposal Regulations, 2020 published through Legal Notice No. 69 of 2020. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19224/eng@2025-12-04 15

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e. An order of certiorari issues removing into this Court and quashing the sections of the Public Procurement and Asset Disposal Regulations, 2020 published through Legal Notice No. 69 of 2020. f. An order of prohibition issues restraining the Respondents from implementing or enforcing the impugned Regulations or the unconstitutional provisions of the Act under Sections 167(2) and 175(2). g. The declarations of unconstitutionality shall operate retrospectively to invalidate all actions taken under the impugned provisions since their inception, save for any proceedings conducted in accordance with Sections 175(3) and (4) of the Act. h. Each party shall bear its own costs given the public interest nature of this litigation. Orders accordingly. File closed accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 4TH DAY OF DECEMBER 2025. BAHATI MWAMUYE MBS JUDGE In the presence of: Counsel for the Petitioners –Mr. Muturi h/b Mr. Kibe Mungai Counsel for the 1st Respondent – Mr. Thande Kuria h/b Mr. Kaumba Counsel for the 2nd Respondent – No appearance Counsel for the 1st Interested Party - No appearance Counsel for the 2nd Interested Party -No appearance Court Assistant –Ms. Lwambia https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19224/eng@2025-12-04 16

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