Leonard Kiptoo Langat v Ministry of Agriculture and Livestock Development & 5 others

(On the Notice of Motion Application dated 19th May 2025) RULING Introduction 1. What falls for determination before this Court is the Petitioner/Applicant’s Notice of Motion dated 19th May 2025, filed by the Petitioner, Mr. Leonard Kiptoo Langat. The application is predicated upon, and is ancillary to, a substantive Petition in which the Petitioner impugns the tendering and leasing process through which the Respondents leased certain public sugar companies to West Valley Sugar Company Limited. The gravamen of the Petition is that the said procurement and leasing process was conducted in blatant disregard of the Constitution, and in particular in violation of the constitutional principles and guarantees governing fair competition, public participation, transparency, accountability, and good governance. 2. The Applicant/Petitioner seeks the following orders; i. The matter be certified urgent, and service be dispensed with in the first instance. ii. The Honourable Court be pleased to issue a conservatory order of injunction barring the 3rd Respondent's management whether their assigns, agents, employees, officers, servants, or any person acting on their behalf, from accessing, tilling, and harvesting sugar from the Nucleus Farm following the award of Tender No. MOALD/SDA/T/001/2024/2025 pending the hearing and determination of the Application and Petition, both dated 19th May 2025. iii. The costs of the Application be borne by the Respondents. 3. According to the Petition, the Government invited international tenders for a thirty-year lease of public sugar factories, including Muhoroni Sugar Company and its related assets. It is pleaded that on 28th June 2025, the Ministry of Agriculture announced that the tender had been awarded to West Valley Sugar Company Ltd, the 3rd Respondent herein. 4. The Petitioner, who describes himself as a public-interest litigant from Kericho County, contends that the tender process was marred by procedural and constitutional infirmities. He alleges, in particular, that local farmers and affected community members were not consulted prior to the leasing of the public assets; that the award of the tender to the 3rd Respondent would result in the creation of a monopoly detrimental to the interests of sugarcane farmers; and that the 3rd Respondent did not meet the eligibility criteria stipulated in the tender documents. 5. In his supporting affidavit, the Petitioner reiterates that local sugarcane farmers were excluded from the decision-making process and avers that they stand to suffer irreparable harm should the 3rd Respondent be permitted to harvest sugarcane pursuant to the impugned lease while the Petition remains pending. 6. The 1st and 5th Respondents filed a Preliminary Objection dated 15th September 2025 on grounds that: i. The Petition is res judicata, the issues raised herein having been substantially and directly in issue and conclusively determined on merit in the following prior proceedings before courts of competent jurisdiction: https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19236/eng@2025-12-18 2

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a. Nairobi Constitutional Petition No. E065 of 2024: Martin Nyongesa Barasa vs State Law Office & Ministry of Agriculture, Livestock and Fisheries, where the court found that the principles of public participation were duly complied with. b. Nairobi Constitutional Petition No. E146 of 2025: Wamalwa and Echesa Company Advocates vs State Law Office & CS for Agriculture, where the Court expressly held that the issue of public participation in the leasing of sugar companies had already been settled and could not be reopened. c. Kisumu High Court Constitutional Petition No. E016 of 2025: Charle Atiang Atyang & Olgah Aoko Otieno & 2 others vs State Law Office & Ministry of Agriculture, where the Court affirmed the applicability of the doctrine of exhaustion under the PPP Act and held that the administrative remedy under the Act was adequate and had not been pursued. ii. The Petition constitutes an abuse of the court process as it seeks to re-litigate matters already conclusively determined and undermines the principle of finality in litigation, judicial economy, and the orderly administration of justice. iii. This Honourable Court is devoid of jurisdiction to entertain a matter that is statutorily barred and/or has already been adjudicated upon between the same parties or parties claiming under them. iv. Without prejudice to the foregoing, this Honourable Court lacks jurisdiction to entertain the Petition as the same offends the doctrine of exhaustion, having been filed prematurely without the Petitioners first pursuing and exhausting the statutory dispute resolution mechanisms provided under Sections 6, 75, and 75(4) of the Public Private Partnership Act (PPP Act). The said Act establishes a Petitions Committee vested with quasi-judicial powers to hear grievances arising from decisions of the Directorate, a committee, or a Contracting Authority relating to tender processes or project agreements. v. The jurisdiction of this Honourable Court under the PPP Act is appellate in nature, limited to hearing appeals from the decisions of the Petitions Committee as provided under Section 75(4) of the Act, and not to be invoked in the first instance without exhaustion of the administrative remedy. vi. In the absence of exceptional circumstances, which have not been demonstrated in this case, the Petition is premature, improperly before this Court, and should be dismissed. 7. The 2nd Respondent opposed both the Petition and the application for conservatory orders through the replying affidavit sworn by Jude Chesire on 5th June 2025, together with the annexures thereto. It was contended that the Petition seeks to challenge the tender and subsequent award of the lease of the 4th Respondent’s sugar mill and nucleus farm to the 3rd Respondent under Tender No. MOALD/ SDA/T/001/2024/2025, which was conducted by the 2nd Respondent. 8. The 3rd Respondents opposed the application by filing replying affidavits raising jurisdictional objections, contending that disputes arising from public procurement processes fall within the exclusive mandate of the Public Procurement Administrative Review Board or other specialized statutory bodies. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19236/eng@2025-12-18 3

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9. According to the Respondents, the Petitioner is neither an aggrieved bidder nor an entity contemplated under the procurement law as having the requisite standing to challenge the tender process, and on that basis urged the Court to dismiss the application. Petitioner’s submissions 10. The Petitioner submitted that the application is founded upon alleged violations of the Constitution, the necessity of preserving the substratum of the Petition, and the overarching imperative of safeguarding the public interest pending the hearing and determination of the dispute. 11. He contended that the leasing of the nucleus farm pursuant to International Tender Notice No. MOALD/SDA/T/001/2024/2025 was undertaken in the absence of any meaningful public participation. In that regard, it was his case that farmers and residents of Kericho County and its environs were neither consulted nor furnished with a clear, transparent framework demonstrating how they stood to benefit from the impugned lease. The Petitioner further expressed apprehension that, unless this Court intervenes, the 3rd Respondent would proceed to access, till, and harvest sugarcane on the subject land, thereby occasioning irreparable harm and effectively rendering the Petition nugatory. 12. On locus standi, the Petitioner argued that he properly approached the Court as a public interest litigant. Reliance was placed on Article 22(2) of the Constitution and the decision in Trusted Society of Human Rights Alliance v Mumo Matemu [2014] eKLR, where the Court affirmed that Article 22 “opens the doors of the Courts to a wide category of persons to institute claims for enforcement of fundamental rights.” He maintained that the alleged violations of Articles 10 and 201 of the Constitution directly affect the residents and farmers whose interests he seeks to vindicate. 13. With respect to jurisdiction and the doctrine of exhaustion, the Petitioner acknowledged the general principle that statutory dispute resolution mechanisms ought to be exhausted, as stated by the Court of Appeal in Geoffrey Muthiga Kabiru & 2 others v Samuel Munga Henry & 1756 others [2015] eKLR: “ It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews … The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. The Ex Parte Applicants argue that this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution" 14. However, he submitted that the present case falls within recognized exceptions to the exhaustion doctrine. Further reliance was placed on R v Independent Electoral and Boundaries Commission (IEBC) ex parte National Super Alliance (NASA) Kenya & 6 Others [2017] eKLR, where the Court held that: “ What emerges from our jurisprudence in these cases are at least two principles: while exceptions to the exhaustion requirement are not clearly delineated, Courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved- including level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies. As the Court of Appeal acknowledged in the Shikara Limited case (supra), the High Court may, in exceptional circumstances, find that exhaustion requirement would not serve https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19236/eng@2025-12-18 4

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the values enshrined in the Constitution or law and permit the suit to proceed before it. This exception to the exhaustion requirement is particularly likely where a party pleads issues that verge on Constitutional interpretation especially in virgin areas or where an important constitutional value is at stake. 15. The Petitioner argued that the statutory fora under the Public Procurement and Asset Disposal Act and the Competition Act lack jurisdiction to determine constitutional questions or to grant constitutional remedies. He further relied on Moffat Kamau & 9 Others v Aelous (K) Ltd & 9 Others, where the Court emphasized that a constitutional petition is not divested of jurisdiction merely because it touches on matters falling within the mandate of a specialized tribunal, and on Anthony Miano & others v Attorney General & others [2021] eKLR. 16. On the applicable threshold for the grant of conservatory orders, the Petitioner submitted that he had satisfied the requisite criteria by demonstrating the existence of a prima facie case with a probability of success, and by establishing that he stood to suffer prejudice should the reliefs sought be withheld. In support of that proposition, the Petitioner placed reliance on the decision in Centre for Rights Education and Awareness (CREAW) v Attorney General [2011] eKLR. 17. The Petitioner further invoked the holding in Mrao Ltd v First American Bank of Kenya Ltd [2003] eKLR on the meaning and scope of a prima facie case. Additionally, reliance was placed on Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR, wherein the Supreme Court underscored that the grant of conservatory orders is to be guided by the intrinsic merit of a case, with due regard to the public interest, constitutional values, and the principle of proportionality. 18. The Petitioner submitted that the impugned leasing process was conducted in the absence of public participation, in contravention of Articles 10 and 201 of the Constitution. It was his further contention that the Petition discloses a bona fide, arguable constitutional question deserving of the Court’s interrogation, and that the balance of public interest tilts in favour of preserving the subject matter pending the hearing and determination of the Petition. On that basis, the Petitioner urged the Court to allow the application and grant the conservatory orders sought. 1st and 5th Respondents’ submissions 19. The 1st and 5th Respondents submitted, in limine, that the Petition is barred by the doctrine of res judicata. They contended that the question of the alleged absence of public participation in the award of the impugned tender has previously been raised, litigated, and conclusively determined in earlier proceedings, namely Nairobi Constitutional Petition No. E065 of 2024, Nairobi Constitutional Petition No. E146 of 2025, and Kisumu Constitutional Petition No. E016 of 2025. In that regard, reliance was placed on section 7 of the Civil Procedure Act, Cap 21, as well as the decisions in John Florence Maritime Services Limited & another v Cabinet Secretary, Transport & Infrastructure & 3 others [2021] KESC 39 (KLR) and E.T. v Attorney General & another [2012] KEHC 5506 (KLR), for the proposition that a party cannot circumvent the doctrine of res judicata by re-packaging or recharacterising grievances that have already been adjudicated upon. The Respondents maintained that the Petition constitutes an abuse of the court process and ought to be struck out for seeking to relitigate matters conclusively settled by courts of competent jurisdiction. 20. Secondly, the 1st and 5th Respondents argued that the Petition offends the doctrine of exhaustion. They submitted that the Public Private Partnership Act, 2021 (the “PPP Act”) establishes specialised statutory dispute resolution mechanisms, including recourse to the Petition Committee, which must be exhausted before the jurisdiction of this Court may be properly invoked. Reliance was placed on Speaker of the National Assembly v James Njenga Karume [1992] eKLR, Mutanga Tea & Coffee https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19236/eng@2025-12-18 5

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Company Ltd v Shikara Ltd & Another [2015] eKLR, and Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others [2015] eKLR, which underscore the principle that courts are fora of last resort where alternative statutory mechanisms exist. The Respondents contended that by bypassing the specialised dispute resolution framework under Section 75 of the PPP Act, the Petitioner prematurely and improperly invoked the jurisdiction of this Court. 21. Thirdly, the 1st and 5th Respondents opposed the application for conservatory orders. They submitted that conservatory orders are exceptional remedies, designed to preserve the substratum of litigation and to forestall imminent or threatened violations of constitutional rights, and that such orders must be granted on the inherent merit of a case, with due regard to public interest, proportionality, and constitutional values. In support of that position, reliance was placed on Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] KESC 30 (KLR), as reaffirmed in Okoth v Attorney General & 4 others; Kenya Sugar Millers Association [2025] KEHC 7279 (KLR). In the present case, the Respondents contended that the Petitioner’s allegations regarding the absence of public participation are unfounded, the process having entailed extensive stakeholder consultations and having received approval from the National Assembly. They further argued that the Petitioner’s apprehensions relating to the alleged mismanagement of farmers’ debts are speculative and do not demonstrate any real, imminent, or actual danger, which is a prerequisite for the grant of conservatory relief. 22. It was further submitted that the grant of conservatory orders would occasion substantial disruption to ongoing operations, result in significant financial loss to the 3rd Respondent, and adversely affect farmers, employees, and the wider local community, while the Petitioner would suffer no irreparable prejudice. The Respondents maintained that, the Petition being res judicata and having been instituted in disregard of the doctrine of exhaustion, it is devoid of merit. Consequently, the application for conservatory orders was said to fall short of the legal threshold established by the Constitution and the jurisprudence of the superior courts. In the premises, the 1st and 5th Respondents urged the Court to uphold the preliminary objection, strike out the Petition, and dismiss the application for conservatory orders. 2nd Respondents’ submissions 23. The 2nd Respondent submitted that, for the Petitioner to merit the grant of conservatory orders, he must surmount the established threshold by demonstrating a prima facie case with a high likelihood of success, founded on cogent evidence of constitutional violations warranting the Court’s intervention under Articles 23 and 165 of the Constitution. It was contended that, on its face, the Petition merely impugns procurement proceedings lawfully undertaken pursuant to the Public Procurement and Asset Disposal Act, 2015, which statute vests initial and primary jurisdiction over procurement disputes in the Public Procurement Administrative Review Board under sections 23, 28, 167, and 173 thereof. The 2nd Respondent argued that the Petitioner has failed to place before the Court any prima facie evidence demonstrating constitutional infractions in the conduct of the procurement process. 24. The 2nd Respondent further submitted that no evidence was tendered to establish the Petitioner’s assertion that the nucleus estate is owned by, or held in trust for, the Kipsigis community or the residents of Kericho County. It was contended that neither the Petitioner nor the enjoined County Government of Kericho placed before the Court any documentary, historical, or other probative material to substantiate such a claim. In the same vein, it was argued that no prima facie evidence was presented to demonstrate any proprietary, communal, or beneficial interest in the nucleus farm or the sugarcane cultivated thereon. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19236/eng@2025-12-18 6

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25. On the issue of consultation, the 2nd Respondent observed that the Petitioner admitted having been aware of the tender process from its inception, yet failed to offer any explanation for his delay in approaching the Court until after the process had been concluded. It was therefore submitted that the reliefs sought have been overtaken by events. The 2nd Respondent further challenged the allegation of lack of public participation, contending that the Petitioner failed to cite any legal or constitutional provision imposing an obligation upon the Respondents to undertake public participation in the manner alleged. 26. Reliance was placed on the decision in High Court Constitutional Petition No. E146 of 2025, Wamalwa and Echesa Company Advocates v State Law Office & Others, wherein similar tender proceedings were challenged and both the Petition and the attendant application were dismissed. 27. In conclusion, the 2nd Respondent submitted that both the Petition and the application are devoid of merit; that this Court lacks jurisdiction to entertain the matters raised; that no prima facie case with a likelihood of success has been established; and that the Petitioner has failed to demonstrate how his constitutional rights, or those of the alleged community, have been violated or are threatened with violation. On that basis, the 2nd Respondent urged the Court to dismiss the application with costs. 3rd Respondent’s submissions 28. The 3rd Respondent submitted that the Applicant prematurely invoked the jurisdiction of this Court by instituting the present application without first exhausting the statutory remedies provided under section 167(1) of the Public Procurement and Asset Disposal Act, 2015 (PPADA). It was contended that any party aggrieved by a breach of duty on the part of a procuring entity is statutorily obligated to seek administrative review before the Public Procurement Administrative Review Board within fourteen days of notification of the award or the occurrence of the alleged breach. Reliance was placed on, inter alia, Institution of Surveyors of Kenya v National Social Security Fund & another [2025] KEHC 12462 (KLR) and Jacob (t/a Ssebo Intel Co. Auctioneer) v Odhiambo [2022] KEHC 10435 (KLR), for the proposition that courts are fora of last resort and are divested of jurisdiction where prescribed statutory preconditions have not been complied with. On that basis, the 3rd Respondent submitted that the Applicant’s failure to invoke the available administrative remedies renders the application fatally incompetent. 29. The 3rd Respondent further asserted that the tender process for the leasing of public sector-owned sugar companies, including the assets of the 4th Respondent, was conducted in strict conformity with the principles of fairness, transparency, competitiveness, and accountability as entrenched in the PPADA. It was submitted that the 3rd Respondent’s bid was evaluated in accordance with the applicable statutory procedures and the prescribed, pro-rated criteria relating to experience and financial capacity, culminating in a lawful award and subsequent handover of the assets. The Respondent maintained that the Applicant’s allegations of non-compliance with eligibility requirements are unfounded and amount to an impermissible attempt to retrospectively re-open and re-write the evaluation process. 30. With respect to the prayer for conservatory orders, the 3rd Respondent submitted that the Applicant has failed to meet the established legal threshold. Citing Board of Management of Uhuru Secondary School v City County Director of Education [2015] KEHC 2174 (KLR) and Gatirau Peter Munya v Dickson Mwenda Githinji [2014] eKLR, it was argued that an applicant must demonstrate a prima facie case with a likelihood of success, show that the substratum of the petition would be rendered nugatory in the absence of interim relief, and establish that the balance of convenience and the public interest favour the grant of such orders. The 3rd Respondent contended that the Applicant has not demonstrated any irreparable or imminent harm, and that halting the implementation of the tender https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19236/eng@2025-12-18 7

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would derail ongoing sector reforms and prejudice thousands of farmers, thereby rendering the prayer for conservatory relief untenable. 31. It was submitted that costs ought to follow the event pursuant to section 27(1) of the Civil Procedure Act, Cap 21, on the basis that the premature institution of the application occasioned unnecessary legal expense in defending a matter that properly lay within the jurisdiction of the Public Procurement Administrative Review Board. In the premises, the 3rd Respondent urged the Court to dismiss the application in its entirety and to award costs in its favour. Analysis and Determination 32. Having considered the pleadings on record alongside the submissions of the parties, this Court distils the following issue for determination: i. Whether the Petition is barred by the doctrine of res judicata. ii. Whether the Petitioner/Applicant was required to exhaust alternative statutory remedies before filing this Petition. iii. Whether the Petitioner/Applicant has established the requisite legal threshold for the grant of the conservatory orders sought. Whether the Petition is barred by the doctrine of res judicata 33. The Respondents contended that the application dated 19th May 2025, together with the substantive Petition upon which it is anchored, is barred by the doctrine of res judicata. It was their submission that the issues raised therein were directly and conclusively determined in earlier constitutional petitions arising from the same leasing programme, and that the Petitioner is, in effect, inviting this Court to reopen and re-litigate settled questions of law relating to public participation and procurement. In opposition, the Applicant maintained that the doctrine is inapplicable, contending that he was not a party to the previous proceedings and that the present Petition raises fresh constitutional grievances in the context of public interest litigation. He further argued that both the reliefs sought and the factual matrix are materially distinct from those in the earlier matters. 34. The doctrine of res judicata is codified in section 7 of the Civil Procedure Act and operates to bar the re-litigation of issues that have been finally determined by a court of competent jurisdiction between the same parties or parties litigating under the same title. In Independent Electoral and Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR, the Court of Appeal set out the conjunctive elements that must be satisfied for the doctrine to apply, namely: that the matter in issue was directly and substantially in issue in the former suit; that the former suit was between the same parties or parties claiming under the same title; that the parties litigated under the same title; that the issue was heard and finally determined; and that the court which determined the former suit was competent to try the subsequent suit. The Supreme Court in John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others [2021] eKLR affirmed that the doctrine applies to constitutional litigation, while at the same time cautioning that it must be applied with circumspection so as not to unduly impede access to justice or stifle bona fide public interest claims. 35. Applying the foregoing principles to the circumstances of the present case, the Court observes, first, that the Applicant/Petitioner was not a party to the earlier petitions relied upon by the Respondents, nor has it been demonstrated that he is litigating under the same title as the petitioners in those matters. Mere thematic or subject-matter similarity, without more, does not suffice to satisfy this essential element of the doctrine. Secondly, while the earlier proceedings interrogated aspects of the sugar sector https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19236/eng@2025-12-18 8

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leasing programme, the present Petition raises distinct questions relating to the implementation and operational consequences of the leasing decision, particularly as they bear upon farmers and public assets, and seeks conservatory relief in respect of alleged ongoing constitutional violations. As was held in E.T. v Attorney General & Another [2012] eKLR, the doctrine of res judicata does not apply where subsequent proceedings arise from a different factual context or introduce new issues, even if they fall within the same broad subject area. Thirdly, although the prior matters were determined by courts of competent jurisdiction, the Application before this Court is premised on alleged continuing or subsequent breaches, and it is settled law that res judicata does not bar claims founded on ongoing violations, as articulated in Uhuru Highway Development Ltd v Central Bank of Kenya & 2 Others [1996] eKLR. 36. In the premises, and notwithstanding the evident thematic overlap between the issues raised herein and those canvassed in earlier petitions, the Respondents have not demonstrated, with the requisite precision, that the issues now before the Court were directly and substantially in issue in the former proceedings, nor that the Applicant is litigating under the same title as the prior petitioners. The burden of establishing the plea of res judicata rests squarely upon the party invoking it, as affirmed in E.T. v Attorney General, supra, and that burden has not been discharged in the present case. 37. Accordingly, the Court finds that the application dated 19th May 2025 is not barred by the doctrine of res judicata. The objection predicated on that ground therefore fails. Whether the Petitioner/Applicant was required to exhaust alternative statutory remedies before filing this Petition 38. The Court observes that the Public Procurement and Asset Disposal Act, 2015 (“PPADA”) establishes a comprehensive two-tier administrative enforcement and review framework governing procurement and asset disposal processes. Under section 9(1)(h), the Public Procurement Regulatory Authority is empowered to receive, investigate, and act upon complaints arising from procurement and asset disposal proceedings, including complaints lodged by members of the public. Complementing this regulatory oversight, the Act establishes the Public Procurement Administrative Review Board (“PPARB”), which is vested with express jurisdiction to review, hear, and determine disputes arising from tendering and asset disposal proceedings, and to annul procurement decisions or grant such other relief as is sanctioned by law, pursuant to sections 27 and 28. Further, section 167(1) of the PPADA provides that a candidate or tenderer who claims to have suffered, or who risks suffering, loss or damage due to a breach of duty by a procuring entity may seek administrative review within fourteen days of notification of the award or the occurrence of the alleged breach. 39. Similarly, the Public Private Partnership Act, 2021 (“PPP Act”) establishes a specialised dispute resolution mechanism through a Petition Committee to hear complaints arising from public-private partnership procurements, with an express statutory right of appeal to the High Court. These statutory frameworks reflect Parliament’s deliberate design to entrust procurement-related disputes, in the first instance, to specialised bodies possessing the requisite technical competence and statutory mandate. 40. The 1st, 3rd, and 5th Respondents contend that the Petition is premature, the Petitioner having failed to exhaust the remedies provided under the PPADA and the PPP Act. They rely on the settled principle that where Parliament has provided a specialised dispute resolution mechanism, the courts should ordinarily decline to exercise jurisdiction until such mechanism has been invoked and exhausted. The Petitioner, in response, argues that these statutory fora are ill-suited to vindicate the constitutional and public interest issues raised, being primarily designed for tenderers and lacking the competence to grant declaratory or other constitutional relief, and further contends that the dispute raises questions of constitutional interpretation which this Court ought to determine at first instance. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19236/eng@2025-12-18 9

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41. It is, however, well-established that where a statutory dispute resolution mechanism exists, it must be exhausted before a party may properly invoke the jurisdiction of the courts. The Court of Appeal in Geoffrey Muthiga Kabiru & 2 Others v Samuel Munga Henry & 1756 Others [2015] eKLR affirmed that courts are fora of last resort, and that premature recourse to judicial intervention undermines the statutory architecture and institutional competence deliberately established by Parliament. The jurisprudence recognises limited exceptions, including where statutory remedies are unavailable, ineffective, futile, or where immediate court intervention is necessary to prevent a clear and imminent violation of constitutional rights, as acknowledged in Republic v IEBC ex parte NASA Kenya & 6 Others [2017] eKLR and Anthony Miano & Others v Attorney General & Others [2021] eKLR. 42. Applying these principles, the Court notes that the statutory framework under the PPADA and the PPP Act provides effective, accessible, and specialised avenues for interrogating the legality of procurement processes. The Review Board and the Petition Committee are competent to scrutinise procurement decisions, annul awards, and grant corrective relief within their statutory remit. The Petitioner has not demonstrated that these mechanisms were inaccessible, ineffective, or incapable of addressing the grievances raised. The mere invocation of constitutional provisions does not suffice to bypass the statutory mechanisms, consistent with the guidance in Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others [2014] eKLR. 43. In the circumstances, while the Court acknowledges that the issue of exhaustion of statutory remedies is a threshold question, it finds that this matter is best determined within the context of the main Petition. Accordingly, the Court will address the question of whether the Petitioner has properly invoked and exhausted the statutory mechanisms under the PPADA and the PPP Act during the hearing of Constitutional Petition No. E299 of 2025. At this interlocutory stage, the Court refrains from making a final determination on the exhaustion issue, reserving its consideration for the main petition. Whether the applicant is entitled to any conservatory order 44. The Petitioner seeks conservatory orders restraining the 3rd Respondent from accessing, tilling, and harvesting sugarcane from the nucleus farm pending the hearing and determination of the Petition. It is his contention that, absent such orders, the substratum of the Petition will be irretrievably lost, thereby occasioning irreparable harm to farmers and prejudicing the public interest. The application is anchored on alleged violations of the Constitution, in particular Articles 10, 201, 227, and 232, and the Petitioner argues that conservatory relief is necessary to preserve the subject matter of the dispute. The Respondents oppose the application, principally on the ground that the Petitioner has failed to exhaust the statutory dispute resolution mechanisms under the Public Procurement and Asset Disposal Act, 2015 and the Public Private Partnership framework. They further submit that a litigant who approaches the Court prematurely cannot, at the same time, seek the Court’s equitable and discretionary intervention, as to do so would undermine the statutory architecture and the doctrine of exhaustion. 45. Conservatory orders, though distinct from interlocutory injunctions, are discretionary remedies in constitutional litigation. They are granted on the inherent merit of a case, with due regard to constitutional values, proportionality, and the public interest. The Supreme Court in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR emphasized that such orders are not granted as a matter of course, but must be justified within the context of the Constitution. Consistent jurisprudence from the High Court and the Court of Appeal, including Centre for Rights Education and Awareness (CREAW) & 7 Others v Attorney General [2011] eKLR and Judicial Service Commission v Speaker of the National Assembly & Another [2013] eKLR, has clarified that https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19236/eng@2025-12-18 10

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an applicant must demonstrate a prima facie case with a likelihood of success, as well as a real risk of prejudice should the orders be withheld. In this context, a prima facie case entails the raising of arguable, non-frivolous constitutional issues, as articulated in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR. 46. In the present case, the Petitioner alleges violations of Articles 10, 201, 227, and 232 of the Constitution, principally on the basis of alleged deficiencies in public participation, transparency, and accountability in the leasing of public sugar assets. He asserts that farmers and local residents were excluded from the process and that the lease will adversely affect their socio-economic interests. The Respondents, however, placed before the Court affidavit evidence demonstrating that the leasing process was conducted in accordance with the applicable statutory frameworks, including Cabinet approval, parliamentary engagement, stakeholder consultations, and a competitive tender process. At this interlocutory stage, the Petitioner has not placed before the Court cogent material capable of controverting that evidence or of establishing, on a prima facie basis, that the constitutional thresholds alleged to have been violated were, in fact, breached. As was observed in Muhuri & Others v Attorney General & Others [2015] eKLR, bare allegations of constitutional violation, without factual substantiation, do not suffice to warrant the grant of conservatory relief. 47. While the preservation of the substratum of litigation is a relevant consideration, the Supreme Court in Gatirau Peter Munya, supra cautioned that conservatory orders are not granted merely because impugned actions are ongoing, but because the failure to grant such orders would expose constitutional rights to a real and imminent risk. Similarly, in Nubian Rights Forum & 2 Others v Attorney General & 6 Others [2019] eKLR, the Court declined to grant conservatory orders where the applicants had failed to demonstrate that any alleged harm would be incapable of remediation should the petition ultimately succeed. In the present case, the Petitioner has not demonstrated that any prejudice arising from harvesting or operationalisation of the lease would be irreparable or incapable of being addressed through appropriate declaratory, compensatory, or structural relief. The apprehended harm remains largely speculative and contingent, rather than immediate or demonstrable. 48. Public interest is a central and weighty consideration in the grant of conservatory orders. The material placed before the Court indicates that the leasing and operationalisation of the sugar factories is aimed at reviving a distressed sector, safeguarding livelihoods, and stabilising sugar production. To halt the process at this juncture would have far-reaching economic and social consequences for farmers, employees, and the wider public. In keeping with the guidance of the Supreme Court in Gatirau Peter Munya, supra, conservatory orders must be proportionate and aligned with the public good. Granting such orders in the absence of a clear and prima facie demonstration of constitutional breach would be disproportionate and inimical to the public interest. 49. Having carefully considered the principles enunciated in the foregoing authorities, the Court is not persuaded that the Petitioner has established a prima facie case at this stage, albeit that the Petitioner may do so hereafter. Further, the Court is not persuaded that there exists a real and imminent risk that the Petition will be rendered nugatory or that irreparable constitutional prejudice will arise in the absence of conservatory relief. On the contrary, the balance of proportionality and public interest weighs decisively against the grant of the orders sought. 50. Accordingly, the Court finds that the Petitioner has not satisfied the requisite legal threshold, and the Notice of Motion dated 19th May 2025 is devoid of merit insofar as it seeks conservatory relief. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19236/eng@2025-12-18 11

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Conclusion 51. The Court finds that the Petitioner/Applicant’s Notice of Motion dated 19th May 2025 is not barred by the doctrine of res judicata, as the Respondents have not established that the issues presently before the Court were directly and substantially in issue in prior proceedings, nor that the Petitioner is litigating under the same title as previous petitioners. The objection predicated on this ground accordingly fails. 52. The Court further observes that the question of whether the Petitioner has properly invoked or exhausted the statutory remedies under the Public Procurement and Asset Disposal Act, 2015 (PPADA) and the Public Private Partnership framework is a matter more appropriately determined in the course of hearing and determining the main Petition, Constitutional Petition No. E299 of 2025. 53. Having carefully considered the authorities and principles outlined herein, the Court is not persuaded that the Petitioner has demonstrated a prima facie case, nor that there exists a real and imminent risk that the Petition would be rendered nugatory, or that irreparable constitutional prejudice would ensue in the absence of conservatory relief. On the contrary, the balance of proportionality and public interest weighs decisively against the grant of the relief sought. Accordingly, the Court finds that the Petitioner has not satisfied the requisite legal threshold, and the Notice of Motion dated 19th May 2025 is devoid of merit insofar as it seeks conservatory relief. 54. Given the foregoing, Court makes the following determinative orders; 55. a. The Petitioner/Applicant’s Notice of Motion Application dated 19th May 2025 is hereby found to be without merit and is accordingly dismissed, with costs in the cause; and b. Any interim conservatory orders that may have been issued are hereby discharged. Directions on the expedited hearing of Constitutional Petition No. E299 of 2025 shall be issued separately. It is so ordered DATED, SIGNED, AND DELIVERED VIRTUALLY ON THIS 18TH DAY OF DECEMBER 2025. BAHATI MWAMUYE MBS JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19236/eng@2025-12-18 12

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