The Law Society of Kenya v The Attorney General & 1 other

THE PUBLIC PROCUREMENT REGULATORY AUTHORITY ... INTERESTED PARTY THE NATIONAL ASSEMBLY ................................................ INTERESTED PARTY JUDGMENT Introduction 1. This Judgment determines Constitutional Petition No. 238 of 2020 instituted by the Law Society of Kenya (hereinafter “the Petitioner”). At its core, the Petition calls into question the constitutionality of Sections 167(2) and 175(2) of the Public Procurement and Asset Disposal Act, No. 33 of 2015 (hereinafter “the PPADA”), as read together with Regulations 10(2), 203, 204 and 218 of the Public Procurement and Asset Disposal Regulations, 2020 (hereinafter “the impugned Regulations”). 2. The impugned Regulations were promulgated by the Cabinet Secretary for the National Treasury and Planning and published on 22nd April 2020 vide Legal Notice No. 69 of 2020 in the Kenya Gazette Supplement No. 53. They were subsequently transmitted to the National Assembly of Kenya, laid before the House, and approved on 2nd July 2020 pursuant to Section 180 of the PPADA, thereby coming into force on the same date. Prior to their approval, the Petitioner, through a memorandum submitted in June 2020 to the Senate Sessional Committee on Delegated Legislation, raised concerns regarding certain provisions of the proposed Regulations, particularly those introducing deposit requirements pegged on the value of tenders and permitting representation before the Review Board by persons other than advocates. Notwithstanding those representations, the Regulations were adopted in their present form. 3. The gravamen of the Petition is that the impugned statutory and regulatory provisions impose onerous, punitive, and discriminatory financial preconditions in the form of deposits and security fees as a prerequisite to lodging requests for review and instituting judicial review proceedings in procurement disputes. It is the Petitioner’s case that such requirements operate to impede access to justice, infringe the right to a fair hearing, violate the constitutional guarantee of equality and freedom from discrimination, and undermine the constitutional principles governing public procurement under Article 227 of the Constitution. The Petitioner further contends that certain provisions of the impugned Regulations are inconsistent with the parent Act and other written laws, and are therefore ultra vires. 4. In particular, the Petition challenges the requirement under Section 167(2) of the PPADA, as operationalised by Regulation 203(1), that a request for review be accompanied by a substantial refundable deposit, the requirement under Section 175(2), as read with Regulation 218, that a party seeking judicial review furnish a security fee pegged on the value of the tender, the provision under Regulation 10(2), which is alleged to be inconsistent with Section 29(2) of the PPADA in relation to nominations to the Review Board and Regulation 204, which permits representation by persons other than advocates. The Petitioner asserts that these provisions have already been applied in practice to deny parties audience before the Review Board for non-compliance with the prescribed deposit requirements, thereby illustrating their exclusionary and prejudicial effect. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7018/eng@2026-04-29 2

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5. Arising from the foregoing, the Petitioner seeks the following reliefs: a. A declaration do issue that Sections 167 (2) and 175 (2) of the Public Procurement and Asset Disposal Act 2015 are unconstitutional and therefore null and void. b. A declaration do issue that Regulations 203 and 218 of the Public Procurement and Asset Disposal Regulations 2020 are unconstitutional and therefore null and void. c. A declaration do issue that Regulation 10 (2) of the Public Procurement and Asset Disposal Regulations 2020 is contrary and inconsistent with Section 29 (2) of the Public Procurement and Asset Disposal Act, 2015 and therefore null and void. d. A declaration do issue that Regulation 204 of the Public Procurement and Asset Disposal Regulations 2020 is inconsistent with the Advocates Act and therefore null and void. e. In the alternative to (b) above, a declaration do issue that the Public Procurement and Asset Disposal Regulations 2020 are unconstitutional, null and void. f. An order of Permanent Injunction do issue permanently restraining and staying the operation and implementation of Sections 167 (2) and 175 (2) of the Public Procurement and Asset Disposal Act 2015 as read together with Regulations 203, 204 and 218 of the Public Procurement and Asset Disposal Regulations 2020. g. This Honourable Court be pleased to grant such other or further orders as it may deem just and appropriate in the circumstances. h. Costs of the suit. The Petitioner’s Case 6. The Petitioner’s case, as gleaned from the Petition dated 6th August 2020, the Supporting and Further Affidavits sworn by Mercy Wambua, and the written submissions on record, is anchored on a sustained challenge to both the process leading to the enactment of the impugned Regulations and the substantive constitutionality of the impugned statutory and regulatory provisions. 7. The Petitioner traces the genesis of the dispute to the promulgation of the Public Procurement and Asset Disposal Regulations, 2020 by the Cabinet Secretary on 22nd April 2020, and their subsequent approval by the National Assembly of Kenya on 2nd July 2020 pursuant to Section 180 of the Public Procurement and Asset Disposal Act. It is the Petitioner’s case that, prior to such approval, it had, through a memorandum submitted to the Senate Sessional Committee on Delegated Legislation in June 2020, raised grave concerns regarding certain provisions of the proposed Regulations. In particular, it objected to the introduction of substantial deposit requirements pegged on the value of the tender as a precondition to accessing review mechanisms, as well as the provision permitting representation before the Review Board by persons other than qualified advocates. Notwithstanding these representations, the impugned Regulations were adopted without accommodation of the Petitioner’s concerns. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7018/eng@2026-04-29 3

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8. On substance, the Petitioner assails Sections 167(2) and 175(2) of the PPADA, as read together with Regulations 203(1) and 218 of the impugned Regulations, on the basis that they impose excessive, punitive, and prohibitive financial preconditions to the lodging of requests for review before the Public Procurement Administrative Review Board and the institution of judicial review proceedings before the High Court. It is contended that the requirement to deposit fifteen per cent (15%) of the tender sum at the administrative review stage, and three per cent (3%) at the judicial review stage over and above filing fees that may reach up to Kshs. 205,000 has the effect of commercialising access to justice and rendering it contingent upon financial capacity. 9. The Petitioner contrasts this regime with the general civil and commercial litigation framework in Kenya, where filing fees are capped at comparatively modest levels irrespective of the value of the subject matter, and no analogous deposit requirement exists. It is urged that, given that public procurement contracts often involve sums running into hundreds of millions or billions of shillings, the impugned deposit requirements are manifestly prohibitive, particularly for small and medium enterprises and for enterprises owned by youth, women, and persons with disabilities. In this regard, the Petitioner contends that the impugned provisions violate the right of access to justice and the right to a fair hearing, and further offend the guarantee of equality and freedom from discrimination under Article 27 of the Constitution by effectively excluding economically disadvantaged persons from the procurement dispute resolution framework. It is argued that the impugned regime creates a classification based solely on financial ability, thereby reserving access to remedial processes for the affluent. Reliance is placed on the decision in Ndyanabo v Attorney General (2002) AHRLR 243 (TzCA 2002), wherein the court underscored that legal regimes which impose undue barriers to the enforcement of rights are incompatible with constitutional guarantees. 10. The Petitioner further avers that the impugned provisions cannot be justified as reasonable and proportionate limitations under Article 24 of the Constitution. It is contended that the statutory framework already incorporates sufficient safeguards against frivolous or vexatious claims, including the requirement that only a tenderer who has submitted a bid may lodge a request for review within a strict fourteen-day window, the obligation to conclude review proceedings within twenty-one days, and the express power of the Review Board under Section 172 of the Act to dismiss unmeritorious claims with costs. In the Petitioner’s view, the imposition of substantial monetary deposits is therefore unnecessary, excessive, and disproportionate to any legitimate aim. 11. The Petitioner also mounts a specific challenge to Regulation 10(2), contending that it is ultra vires Section 29(2) of the parent Act. It is argued that whereas the statute contemplates the nomination of two persons by the Petitioner for appointment to the Review Board, the Regulation purports to require the submission of three nominees per slot, thereby introducing criteria not envisaged by Parliament. The Petitioner asserts that this has the effect of diluting its statutory role and improperly vesting discretion in the Cabinet Secretary to interfere with the nomination process, to the detriment of the independence of the Review Board. 12. With respect to Regulation 204, the Petitioner contends that the provision is inconsistent with Sections 31 and 34 of the Advocates Act, Cap 16, in so far as it permits representation before the Review Board by persons who are not qualified advocates. It is the Petitioner’s case that the Review Board, being a quasijudicial tribunal exercising adjudicative functions, ought to be subject to the same standards governing legal representation as courts of law. The impugned provision is said to expose litigants to unregulated representation, devoid of professional accountability, ethical obligations, and disciplinary oversight. 13. The Petitioner further illustrates the practical effect of the impugned provisions by reference to the decision of the Review Board in Milicon’s Limited v The Accounting Officer, Konza City Technopolis https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7018/eng@2026-04-29 4

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Development Authority & 2 Others, Application No. 102 of 2020, in which a request for review was struck out for failure to comply with the deposit requirement under Regulation 203(1). It is contended that the Review Board, in that instance, treated the requirement as mandatory and declined jurisdiction in the absence of compliance, thereby demonstrating the exclusionary operation of the impugned framework. 14. The Petitioner challenges the process leading to the enactment of the impugned Regulations on the ground of inadequate public participation. Reliance is placed on the decisions in Robert N. Gakuru & others v Kiambu County Government & 3 others [2014] eKLR and Doctors for Life International v Speaker of the National Assembly and Others (CCT12/05) [2006] ZACC 11, for the proposition that public participation must be real, meaningful, and purposive. The Petitioner contends that, although the Respondents assert that public participation was conducted in 2016 in respect of earlier draft regulations, the impugned Regulations underwent substantial changes thereafter, and no fresh or effective engagement was undertaken. It is further argued that the specific issue of deposit requirements and their impact on access to justice was neither adequately disclosed to nor interrogated by the public, and that the Petitioner’s memorandum raising these concerns was disregarded. 15. On the totality of the foregoing, the Petitioner invites the Court to find that the impugned provisions are unconstitutional, ultra vires, and procedurally infirm, and to grant the reliefs sought in the Petition. The Respondents’ Case 16. The 1st and 2nd Respondents oppose the Petition and rely on the Replying Affidavit sworn on 13th November 2020 by Dr. Julius Muia, the Principal Secretary to the National Treasury, together with their written submissions on record. Their case is that the impugned provisions were lawfully enacted and are constitutionally sound, both in substance and process. 17. The Respondents contend, in the first instance, that the Public Procurement and Asset Disposal Regulations, 2020 were promulgated in strict conformity with the enabling provisions of the Public Procurement and Asset Disposal Act and the requirements of the Statutory Instruments Act, 2013. They maintain that the regulatory framework, including the impugned deposit provisions, is the product of a deliberate legislative and policy process undertaken within the confines of the law and with due regard to the objectives of public procurement. 18. On the substance of the impugned provisions, the Respondents justify the introduction of deposit and security requirements as a rational and proportionate policy measure aimed at curbing frivolous, speculative, and vexatious claims that have the effect of stalling procurement proceedings. It is their case that public procurement processes are, by their nature, resource-intensive, time-sensitive, and implicate substantial public funds. Accordingly, they argue that the imposition of a financial threshold serves as a legitimate filtering mechanism to ensure that only bona fide and serious disputes are presented before the administrative and judicial fora. 19. The Respondents further submit that the concept of requiring litigants to furnish security is not alien to the legal system. They draw an analogy with civil proceedings, where courts are empowered under the Civil Procedure Act to order the deposit of security for costs, and argue that the impugned provisions merely embody a comparable principle within the specialised context of procurement law. In their view, the deposit cannot be characterised as punitive, as it is expressly refundable upon the successful prosecution of a claim, and thus does not constitute a permanent deprivation of property. 20. It is also the Respondents’ position that the Petitioner has failed to discharge the evidentiary burden necessary to establish a violation of the Constitution. They invoke the presumption of constitutionality attaching to statutes and statutory instruments, and contend that the Petitioner has not demonstrated, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7018/eng@2026-04-29 5

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by cogent evidence, that the impugned provisions are either excessive in effect or have, in practice, denied any person access to justice. In their view, the allegations advanced are speculative and unsupported by empirical proof. 21. The Respondents further urge the Court to exercise judicial restraint, grounded in the doctrine of separation of powers. They submit that the formulation of policy, particularly in specialised and technical domains such as public procurement, falls within the province of the Executive and the Legislature. The Court is therefore enjoined, they argue, to accord a margin of deference to those branches of government and to refrain from substituting its own judgment for that of the duly mandated bodies, absent a clear and demonstrable violation of the Constitution. In this regard, they maintain that the impugned deposit requirements represent a legitimate policy choice designed to safeguard public resources and enhance the efficiency of procurement processes. 22. With respect to the question of public participation, the Respondents assert that the process leading to the enactment of the impugned Regulations was both extensive and inclusive. They refer to a series of consultative engagements undertaken across the Republic of Kenya, including county-level forums conducted in 43 out of 47 counties between September 2016 and October 2019, a national validation forum held at the Kenya Institute of Curriculum Development in November 2016, and consultations with key stakeholders, including the Office of the Attorney General. They further point to pre-publication engagement with the Committee on Delegated Legislation held on 20th August 2019 in Mombasa. 23. The Respondents contend that the Petitioner’s memorandum submitted in June 2020 was duly considered within this broader participatory framework, and that the Committee on Delegated Legislation observed that certain concerns raised therein had already been addressed in the Regulations. On that basis, the Respondents maintain that the threshold of meaningful public participation, as contemplated under the Constitution and relevant statutory framework, was duly met. 24. In sum, the Respondents invite the Court to find that the impugned provisions are constitutionally valid, that the Petition is devoid of merit, and that the same ought to be dismissed with costs. The Interested Parties’ Case 25. The 1st and 2nd Interested Parties, namely the Public Procurement Administrative Review Board (hereinafter “the Review Board”) and the Public Procurement Regulatory Authority (hereinafter “the Authority”), did not file substantive responses in the form of affidavits or written submissions. 26. The 3rd Interested Party, the National Assembly of Kenya, opposes the Petition and relies on the Replying Affidavit sworn by its Clerk, Mr. Michael Sialai, CBS, together with the documentary material annexed thereto, including the Report of the Committee on Delegated Legislation on the consideration of the Public Procurement and Asset Disposal Regulations, 2020. 27. It is the 3rd Interested Party’s case that the impugned Regulations were processed and approved in strict adherence to the procedural requirements stipulated under the Statutory Instruments Act, 2013 and the parent statute. In particular, it is deponed that the Regulations were duly transmitted to the Clerk of the National Assembly on 30th April 2020 within the prescribed statutory timelines, tabled before the House on 6th May 2020, and thereafter subjected to scrutiny by the Committee on Delegated Legislation. 28. The 3rd Interested Party avers that the Committee undertook a comprehensive review of the Regulations, interrogating their conformity with the Constitution, the Public Procurement and Asset Disposal Act, the Statutory Instruments Act, and the Interpretations and General Provisions Act. The https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7018/eng@2026-04-29 6

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Committee is said to have considered, inter alia, issues relating to statutory timelines, the adequacy of public participation, and the existence of a regulatory impact statement. Upon being satisfied as to the legality and propriety of the instrument, the Committee recommended its approval. The Report of the Committee was subsequently tabled before the House and adopted, culminating in the approval of the Regulations. 29. On the question of public participation, the 3rd Interested Party maintains that the process preceding the promulgation of the Regulations was extensive and met the constitutional threshold. It is contended that the regulation-making authority conducted county-level consultative forums in 43 out of 47 counties between September 2016 and October 2019, convened a national validation forum at the Kenya Institute of Curriculum Development in November 2016, and engaged various stakeholders, including the Office of the Attorney General and the Committee on Delegated Legislation, prior to publication. It is further deponed that stakeholder input informed substantive revisions to the draft Regulations, including the expunging of certain provisions, adjustment of timelines, reduction of review fees, and enhancement of participation opportunities in international tenders. 30. The 3rd Interested Party further asserts that the Committee received and considered submissions from diverse stakeholders, including the Law Society of Kenya, the Ethics and Anti-Corruption Commission, and the Kenya Institute of Supplies Management. With respect to the Petitioner’s concerns regarding inconsistency with the Advocates Act, the Committee is said to have invoked Section 5 of the PPADA, which accords primacy to the Act in the event of inconsistency with other legislation, save in instances where procurement of professional services is governed by a specific statute. On that basis, it was concluded that procurement of legal services falls outside the ambit of the impugned regulatory provisions. 31. Regarding the impugned deposit requirements, the 3rd Interested Party characterises the same as a considered legislative policy designed to deter frivolous and dilatory claims that impede the efficient conduct of procurement processes. It is contended that the objective of the requirement is to ensure that only genuine and meritorious disputes are brought before the Review Board, thereby safeguarding public resources and maintaining the integrity of procurement timelines. The 3rd Interested Party urges that such determinations fall squarely within the legislative and policy-making domain, and are not amenable to judicial interference in the absence of a clear constitutional violation. 32. Finally, the 3rd Interested Party invokes the doctrines of separation of powers and parliamentary privilege, urging the Court to exercise restraint in scrutinising the internal processes of Parliament. In this regard, reliance is placed on Speaker of the Senate & another v Attorney General & 4 others [2013] eKLR, wherein the Supreme Court held that: “ The Court will not question each and every procedural infraction that may occur in either House of Parliament… [and] institutional comity between the three arms of Government must not be endangered by unwarranted intrusions.” 33. On that basis, the 3rd Interested Party contends that no sufficient ground has been laid to warrant judicial intervention, and invites the Court to uphold the validity of the impugned Regulations and dismiss the Petition. Analysis And Determination 34. Having carefully considered the Petition, the affidavits, the annexures, the submissions of the parties, and the relevant legal authorities, the Court finds that the following issues arise for determination: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7018/eng@2026-04-29 7

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i. Whether the deposit requirements under Section 167(2) and Section 175(2) of the PPADA and Regulations 203 and 218 of the Impugned Regulations violate the right of access to justice under Article 48 of the Constitution and the right to fair hearing under Article 50 of the Constitution. ii. Whether the deposit requirements violate Article 27 and Article 10 and whether, if so, they are justified under Article 24 of the Constitution. iii. Whether Regulation 10(2) of the Impugned Regulations is inconsistent with Section 29(2) of the PPADA and therefore null and void. iv. Whether Regulation 204 of the Impugned Regulations is inconsistent with the Advocates Act and therefore null and void. v. Whether the 2nd Respondent complied with the public participation requirements under the Statutory Instruments Act, 2013 and the Constitution. Whether the deposit requirements under Section 167(2) and Section 175(2) of the PPADA and Regulations 203 and 218 of the Impugned Regulations violate the right of access to justice under Article 48 of the Constitution and the right to fair hearing under Article 50 of the Constitution. 35. The first and most fundamental issue for determination is whether the requirement that an aggrieved tenderer deposit fifteen per cent of the tender sum as a condition for filing a request for review before the Public Procurement Administrative Review Board, and three per cent of the tender sum as a condition for instituting judicial review proceedings before the High Court, is compatible with the constitutional guarantees of access to justice and the right to a fair hearing. 36. The Court approaches this question mindful that access to justice is not merely procedural but a foundational constitutional value underpinning the rule of law. In Wamwere & 5 others v Attorney General [2023] KESC 3 (KLR), the Supreme Court underscored the centrality of access to justice within the constitutional framework and its critical role in enabling the enforcement of rights. Similarly, in Republic v Chengo & 2 others [2017] KESC 15 (KLR), the Supreme Court emphasised the constitutional architecture governing the exercise of judicial authority, underscoring the importance of properly constituted adjudicative fora in the administration of justice. 37. Article 48 of the Constitution imposes a positive obligation upon the State to ensure access to justice for all persons and further provides that any fee imposed must be reasonable and must not impede such access. The constitutional standard is therefore twofold: the fee must be reasonable in character and must not, in its effect, hinder access. The inquiry is consequently not confined to the formal quantum of the fee, but extends to its practical operation. A financial requirement that conditions or restricts entry to adjudicative fora violates Article 48 if it operates, in substance, as a barrier to access. 38. Article 50(1) guarantees the right to have disputes determined in a fair and public hearing before an independent and impartial tribunal. That guarantee necessarily presupposes the ability to invoke the jurisdiction of such a tribunal. As observed in Harvest Sheen Ltd and another v Collector of Stamp Revenue [1997] HKLRD 889, the right to a fair trial is illusory if a litigant cannot access the tribunal in the first instance. Access is thus a logical and legal precondition to the enjoyment of the right to a fair hearing. 39. Against that constitutional framework, the Court turns to the practical operation of the impugned provisions. Section 167(2) of the PPADA prescribes a refundable deposit of not less than ten per cent https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7018/eng@2026-04-29 8

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of the contract value, while Regulation 203(1) fixes the deposit at fifteen per cent of the tender sum. Given that public procurement frequently involves contracts running into hundreds of millions or billions of shillings, the resulting financial obligation is substantial. 40. The Court notes that the Petitioner, in the affidavit evidence placed before it, drew an illustrative example from the Milicon’s Limited case, in which a tender sum of Kshs.1,397,397,397/= yielded a required deposit of approximately Kshs.209,609,609.55. The Respondents did not controvert this example. The Court finds the illustration probative of the practical operation of the impugned provisions. Viewed objectively, such a requirement constitutes a significant financial threshold that is likely to be beyond the reach of a considerable segment of potential litigants, particularly small and medium enterprises and participants within constitutionally protected categories. 41. The comparative material placed before the Court further underscores the exceptional nature of this requirement. Other tribunals within the Kenyan adjudicative framework impose relatively modest filing fees and do not condition access on substantial monetary deposits. While the Court accepts that different tribunals operate within distinct statutory contexts, the combined effect of high filing fees and a percentage-based deposit renders access to the procurement dispute resolution framework uniquely onerous. 42. The Respondents and the 3rd Interested Party justify the impugned provisions as measures designed to deter frivolous and vexatious claims and to safeguard public resources. The Court accepts that this is a legitimate governmental objective. Public procurement involves significant public expenditure, and the prevention of abuse of process is both necessary and constitutionally permissible. 43. However, the constitutionality of such measures must be assessed through the lens of proportionality, as articulated in Jacqueline Okuta & another v Attorney General & 2 others [2017] KEHC 8382 (KLR). In that case, the Court stated that: “ …a limitation of a constitutional right will be constitutionally permissible if (i) it is designated for a proper purpose (ii) the measures undertaken to effectuate such a limitation are rationally connected to the fulfilment of that purpose (iii) the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation and finally (iv) there needs to be a proper relation (‘proportionality stricto sensu’) between the importance of achieving the proper purpose and the importance of preventing the limitation on the constitutional right.” 44. The Court must therefore interrogate whether the impugned deposit requirements bear a rational connection to the stated objective, whether they are necessary in the presence of less restrictive alternatives, and whether the extent of the limitation imposed is proportionate to the objective sought to be achieved. 45. On the first limb, the Court finds that the impugned deposit requirement lacks a rational connection to the objective of deterring frivolous claims. The frivolity or merit of a claim is determined by its legal and factual substance, not by the financial capacity of the claimant. A regime that permits a well-resourced litigant to pursue a frivolous claim while excluding a financially constrained litigant with a meritorious claim cannot be said to rationally advance its stated purpose. Rather, it substitutes financial ability for merit as the threshold for access to adjudication. 46. On the second limb, the Court finds that the impugned provisions do not meet the requirement of necessity. Less restrictive means are not only conceivable but are already embedded within the statutory framework of the PPADA. These include the limitation of standing to actual tenderers with a direct interest, the imposition of strict timelines for the determination of review proceedings, and the express https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7018/eng@2026-04-29 9

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power of the Review Board under Section 172 to dismiss frivolous or vexatious claims and to award costs. These measures are directly responsive to the mischief of abuse of process and achieve the stated objective without erecting a blanket financial barrier to access. 47. On the third limb, the Court rejects the analogy drawn between the impugned deposit requirement and security for costs in civil proceedings. Security for costs is discretionary, context-specific, and imposed only after proceedings have been instituted, typically upon a judicial assessment of the risk of non-payment of costs. By contrast, the impugned deposit requirement is automatic, inflexible, and operates as a precondition to the invocation of jurisdiction, without regard to the merits of the claim or the circumstances of the claimant. The two mechanisms are therefore neither analogous in principle nor equivalent in effect. 48. The Respondents further contend that the deposit is refundable and therefore not prejudicial. While refundability is not an irrelevant consideration, it does not resolve the constitutional question. The inquiry under Article 48 is directed at access at the point of entry into the adjudicative process. A requirement that must be satisfied as a precondition to the institution of proceedings operates as a threshold barrier, irrespective of the possibility of reimbursement at a later stage. The constitutional infirmity arises from the denial of access in limine, not from the ultimate disposition of the funds. 49. In those circumstances, the Court finds that the impugned deposit requirement constitutes a substantial impediment to access to justice, contrary to Article 48. For the same reason, it derogates from the right to a fair hearing under Article 50(1), in that it effectively denies a class of litigants the opportunity to have their disputes heard and determined on the merits. 50. The Court has considered the argument grounded in the doctrine of separation of powers. It is not in dispute that the design and regulation of procurement policy fall within the competence of the Legislature and the Executive. However, judicial deference does not extend to the validation of measures that infringe constitutional rights. As affirmed in Doctors for Life International v Speaker of the National Assembly and Others 2006 (6) SA 416 (CC), the doctrine of separation of powers does not preclude judicial intervention where constitutional rights or requirements are infringed. 51. In the present case, the impugned provisions do not merely regulate access to adjudicative fora they condition and restrict such access in a manner that is disproportionate, exclusionary, and unrelated to the merits of the dispute. A limitation of that character cannot be justified within the constitutional framework. 52. Accordingly, the Court finds that the deposit requirements under Section 167(2) and Section 175(2) of the PPADA, as operationalised by Regulations 203 and 218, violate Articles 48 and 50 of the Constitution. Whether the said deposit requirements violate the principle of non-discrimination under Article 27 of the Constitution and the national values and principles of governance under Article 10 of the Constitution. 53. The second issue for determination is whether the impugned deposit requirements violate Article 27 of the Constitution and the national values and principles of governance under Article 10, and if so, whether such limitation is nonetheless reasonable and justifiable under Article 24 of the Constitution. 54. Article 27 guarantees equality before the law and equal protection and benefit of the law, and prohibits both direct and indirect discrimination, including on grounds of social origin and economic status. Article 10, in turn, binds all State organs and public officers to observe national values and principles including equity, social justice, equality, non-discrimination, and the protection of the marginalised. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7018/eng@2026-04-29 10

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These provisions, read together, require the Court to interrogate not only the formal neutrality of a measure, but its substantive effect in practice. 55. Although Regulation 203(1) is expressed in neutral terms and applies uniformly to all tenderers, constitutional scrutiny does not end at the level of form. A measure may be facially neutral yet amount to indirect discrimination where, in its operation, it imposes a disproportionate burden on a protected or disadvantaged group. 56. The applicable inquiry in cases of alleged indirect discrimination is whether a facially neutral measure has a disproportionate adverse impact on a protected group, and if so, whether such impact is objectively justifiable within a constitutional framework. 57. In the present case, the deposit requirement, being pegged at a percentage of the tender sum, scales with contract value and therefore escalates in absolute terms. While formally equal across all tenderers, its practical effect is uneven, imposing a significantly heavier burden on economically constrained actors, including small and medium enterprises, youth-owned enterprises, women-owned enterprises, and enterprises owned by persons with disabilities, whose access to liquidity and credit is structurally limited. 58. The Court has considered the affidavit evidence on record, which was not meaningfully controverted. In the absence of empirical justification or mitigating mechanisms such as waiver provisions, judicial discretion, or graduated thresholds, the Court accepts that the impugned regime produces a disproportionate adverse impact on economically disadvantaged groups. 59. That conclusion is reinforced by the constitutional architecture under Articles 21(3), 55 and 56, which impose positive obligations upon the State to take legislative and policy measures that advance and protect vulnerable and marginalised groups. A framework that conditions access to adjudicative redress on substantial financial capacity, without accommodation for indigence or disadvantage, sits in tension with those obligations. 60. Similarly, the Supreme Court in In the Matter of the Principle of Gender Representation in the National Assembly and the Senate [2012] KESC 5 (KLR) affirmed that the Constitution demands substantive rather than merely formal equality, recognising that identical treatment of persons in materially unequal circumstances may entrench rather than alleviate structural disadvantage. The same constitutional logic informs the prohibition of indirect discrimination under Article 27(4), which requires the Court to interrogate the real-world effects of ostensibly neutral measures. 61. Viewed against that jurisprudential standard, the impugned deposit regime, though facially neutral, operates in effect as a financial threshold to access the procurement dispute resolution mechanism and therefore constitutes indirect discrimination within the meaning of Article 27(4). 62. The Court accordingly finds that the impugned provisions violate Article 27 of the Constitution and are inconsistent with Article 10 to the extent that they undermine equity, social justice, equality, nondiscrimination, and the protection of the marginalised. 63. Having found that the impugned provisions constitute indirect discrimination contrary to Article 27 and are inconsistent with Article 10, the resultant limitation of constitutional rights falls for justification under Article 24 of the Constitution. 64. The rights implicated, access to justice, fair hearing, and equality are foundational to the constitutional order. As the Supreme Court observed in Wamwere & 5 others v Attorney General [2023] KESC 3 (KLR), access to justice is not merely procedural but lies at the core of the rule of law, without https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7018/eng@2026-04-29 11

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which other rights become illusory. Any limitation on such rights therefore attracts strict constitutional scrutiny. 65. The Court accepts that the objective of deterring frivolous procurement litigation and safeguarding public resources is legitimate and constitutionally cognisable. 66. However, the nature and extent of the limitation is severe. The requirement of a deposit fixed at fifteen per cent of the tender sum operates as a substantial financial precondition to jurisdiction and, in practical effect, excludes litigants lacking sufficient financial capacity irrespective of the merit of their claims. 67. The Court is satisfied that less restrictive means exist within the PPADA framework to achieve the same objective. These include cost sanctions under Section 172, summary dismissal of frivolous claims, strict statutory timelines, and locus standi limitations confined to actual tenderers. These mechanisms regulate abuse within the adjudicative process rather than excluding litigants at the threshold. 68. Properly analysed, those mechanisms achieve the legislative objective through post-adjudicative control of abuse, rather than pre-emptive exclusion of litigants, and therefore represent less restrictive means which materially impair constitutional rights to a lesser extent. 69. The Constitutional Court of South Africa in Chief Direko Lesapo v North West Agricultural Bank CCT 23/99 [2000 (1) SA 409 (CC)] emphasised that access to courts is a fundamental safeguard against arbitrariness and that only weighty justification can sustain its limitation. No such justification has been demonstrated in the present case. 70. The absence of any waiver mechanism, judicial discretion, or consideration of inability to pay further exacerbates the disproportionality of the limitation. A rigid, universally applicable financial threshold imposed as a jurisdictional precondition is inconsistent with the constitutional requirement that limitations be tailored and minimally impairing. 71. The Court therefore finds that the impugned deposit requirements are not reasonable and justifiable under Article 24 of the Constitution and are unconstitutional. Whether Regulation 10(2) of the Impugned Regulations is inconsistent with Section 29(2) of the PPADA and therefore null and void. 72. The third issue for determination is whether Regulation 10(2) of the Public Procurement and Asset Disposal Regulations is inconsistent with Section 29(2) of the Public Procurement and Asset Disposal Act, and if so, whether it is liable to be declared void to that extent. 73. Section 29(2) of the PPADA provides as follows: “ A person appointed as a member under subsection (1) shall be nominated by the following professional bodies from amongst their members as follows— (a) 74. two persons nominated by the Law Society of Kenya …” Regulation 10(2) of the Public Procurement and Asset Disposal Regulations provides as follows: “ When nominating persons for appointment to the Review Board as provided for under section 29(2) of the Act, each organization referred to in that section shall submit to the Cabinet Secretary the curriculum vitae of three members being nominated for each slot, of whom one shall be of opposite gender and shall reflect regional balance.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7018/eng@2026-04-29 12

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75. The Petitioner contends that the effect of Regulation 10(2) is to depart from the clear statutory scheme by requiring the submission of three curriculum vitae for each nomination, thereby converting a nomination process into a shortlisting exercise and conferring upon the Cabinet Secretary a discretion to select appointees, contrary to Section 29(2). 76. The Respondents, in opposition, contend that Regulation 10(2) does not alter the statutory mandate of nominating bodies but merely operationalises constitutional imperatives under Articles 10 and 27 by ensuring gender and regional balance in public appointments. 77. The Court has considered the rival positions. It is a settled principle of statutory interpretation that subsidiary legislation cannot amend, vary, or contradict the parent statute under which it is made. In Commissioner of Income Tax v Pan African Paper Mills (EA) Ltd [2009] eKLR, the Court of Appeal affirmed the well-settled principle that delegated legislation is subordinate to the parent Act and must operate strictly within the scope of the enabling statute. To the extent that such legislation purports to expand, contradict, or vary the provisions of the Act, it is ultra vires and of no legal effect. 78. The Court further recalls the holding in Law Society of Kenya v Attorney General & another [2021] eKLR where it was affirmed that regulations must faithfully implement, and not re-engineer, the statutory framework established by Parliament. 79. Applying those principles, Section 29(2) is explicit that the Law Society of Kenya shall nominate two persons. The operative statutory language is “shall nominate”, which denotes a conclusive act of designation within the competence of the nominating body. 80. Regulation 10(2), however, introduces a requirement that each nominating body submit three curriculum vitae for each slot. The practical effect of this formulation is to expand the field of consideration beyond the two persons contemplated by the Act and to introduce an intermediate evaluative layer not envisaged by Parliament. 81. While constitutional values under Articles 10 and 27 require that public appointments reflect inclusivity, those values must be realised within the confines of the statutory scheme. As the Court of Appeal observed in County Government of Nyeri v Cabinet Secretary, Ministry of Education & another [2021] eKLR, the Court underscored the principle that administrative action must be anchored in law and cannot lawfully depart from clear statutory prescriptions. Constitutional values under Article 10 guide interpretation and implementation of statutes, but they do not operate to authorise conduct that is inconsistent with express legislative provisions. This Court therefore finds that Regulation 10(2), to the extent that it requires submission of curriculum vitae in excess of the two persons contemplated under Section 29(2), is inconsistent with the parent Act and is therefore ultra vires. 82. The Court, however, clarifies that the constitutional requirements of gender and regional balance remain applicable as guiding principles in the exercise of nomination powers, provided they are implemented in a manner consistent with Section 29(2) of the Act. Whether Regulation 204 of the Impugned Regulations is inconsistent with the Advocates Act and therefore null and void 83. Regulation 204 provides that any party to a request for review before the Public Procurement Administrative Review Board shall be entitled to be represented by an advocate or a representative of his choice. The Petitioner contends that this provision offends Sections 31 and 34 of the Advocates Act, which prohibit unqualified persons from acting as advocates or undertaking legal work reserved for advocates, and that representation before the Review Board ought therefore to be confined exclusively to advocates of the High Court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7018/eng@2026-04-29 13

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84. The Respondents, on the other hand, contend that the Review Board is not a court of civil or criminal jurisdiction but a statutory tribunal, and that the Public Procurement and Asset Disposal Act expressly permits representation by persons other than advocates. 85. Section 31(1) of the Advocates Act provides that: “ no unqualified person shall act as an advocate… or institute, carry on or defend any suit or other proceedings in any court of civil or criminal jurisdiction.” 86. Section 34 further restricts unqualified persons from undertaking specified acts in relation to legal proceedings reserved to advocates. 87. The Court observes that the statutory prohibition in Section 31 is expressly anchored on proceedings before a “court of civil or criminal jurisdiction.” The question that therefore arises is whether proceedings before the Public Procurement Administrative Review Board fall within that statutory classification. 88. The Review Board is established under Section 27 of the PPADA as a specialised statutory tribunal mandated under Section 28 to review, hear and determine procurement disputes. Although it exercises quasi-judicial functions, including the power to annul procurement decisions and award costs, it is not a court within the meaning of Articles 162 and 169 of the Constitution. 89. The Court is further fortified in this conclusion by the express provisions of Section 171(5) of the PPADA, which provides that parties before the Review Board may be represented by an advocate or any other person. This is a clear statutory authorisation of non-advocate representation in proceedings before the Board. 90. In that regard, Regulation 204 does not create a new substantive right but merely operationalises an existing statutory position under the parent Act. To the extent that the PPADA expressly permits representation by “any other person,” the Advocates Act cannot be construed as impliedly prohibiting what the parent procurement statute expressly authorises within a specialised tribunal context. 91. The Court therefore finds that the mischief addressed by Sections 31 and 34 of the Advocates Act namely unauthorised practice of law before courts of law does not extend to proceedings before statutory tribunals where Parliament has expressly permitted non-representation by advocates. 92. Accordingly, Regulation 204 is neither inconsistent with the Advocates Act nor ultra vires the enabling statute. It is anchored on Section 171(5) of the PPADA and is consistent with the legislative intent that procurement dispute resolution before the Review Board be accessible, informal, and not unduly technical. 93. The Court therefore upholds Regulation 204 as valid. The Petitioner’s challenge on this ground fails. Whether the 2nd Respondent complied with the public participation requirements under the Statutory Instruments Act, 2013 and the Constitution 94. The fifth issue for determination is whether the 2nd Respondent complied with the public participation requirements under the Statutory Instruments Act, 2013 and the Constitution. The Petitioner contends that the process was deficient on the basis that the consultations relied upon were undertaken in respect of earlier draft regulations in 2016, that the Petitioner’s subsequent memorandum was not meaningfully considered, and that the impugned deposit requirements were not specifically subjected to public consultation. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7018/eng@2026-04-29 14

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95. The constitutional and statutory standard is well settled. Article 10 of the Constitution requires State organs, in the exercise of public authority, to be guided by national values including public participation, transparency, accountability, equity and social justice. Public participation is not a mechanical or cosmetic requirement but a substantive constitutional obligation. As reiterated by the Supreme Court 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)what is required is that the public be afforded a reasonable opportunity to participate in the decision-making process and that their views are genuinely considered, though not necessarily accepted. 96. The evidential record before the Court demonstrates a multi-layered and extended consultative process. County-level stakeholder forums were conducted across 43 out of 47 counties between 19th September 2016 and 9th October 2019. These engagements were complemented by a national validation forum held at the Kenya Institute of Curriculum Development on 18th November 2016, attended by approximately 200 stakeholders. Further institutional engagements were undertaken, including consultations with the Attorney-General’s office, including pre-publication engagement with the Committee on Delegated Legislation of Parliament, conducted in Mombasa on 20th August 2019.The process culminated in Cabinet approval of the draft regulatory framework on 22nd December 2016. 97. These engagements, taken cumulatively, demonstrate a sustained and geographically broad consultation process spanning several years. The constitutional inquiry is not whether each individual provision was subjected to a separate standalone consultation, but whether the process as a whole was reasonable, inclusive, and capable of capturing stakeholder input in a meaningful way. 98. The Court also takes cognisance of the fact that the regulatory authority effected a number of substantive changes to the draft Regulations following stakeholder engagement. These included the deletion of Regulations 7-16 relating to the Public Procurement Services Agency, revision of procurement timelines, reduction of fees payable in review proceedings before the Public Procurement Administrative Review Board, and clarification of disposal procedures. These amendments are material and demonstrate that stakeholder input had a tangible influence on the final regulatory instrument, thereby negating the assertion that the process was illusory or predetermined. 99. With respect to the Petitioner’s memorandum submitted in June 2020, the record shows that it was received and considered alongside submissions from other key stakeholders, including the Law Society of Kenya, the Ethics and Anti-Corruption Commission, and the Kenya Institute of Supplies Management. The fact that certain proposals were not ultimately adopted does not amount to a constitutional violation. The obligation under Article 10 is one of consideration, not concurrence. 100. It is also significant that the Committee on Delegated Legislation expressly observed that some of the concerns raised had already been addressed within the regulatory framework. In such circumstances, failure to expressly adopt a stakeholder’s preferred position cannot, without more, invalidate an otherwise extensive participatory process. 101. Applying the principles set out in BAT supra, the Court is satisfied that the process met the constitutional threshold. It was open, multi-channel, geographically extensive, and demonstrably responsive in key respects. The requirement is not perfection, nor unanimity, but a reasonable and good faith engagement with the public. 102. The Court further finds that although the deposit mechanism was not individually isolated in every forum, it was sufficiently embedded within the broader procurement regulatory framework https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7018/eng@2026-04-29 15

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that formed the subject of consultation, and no constitutional requirement exists for item-by-item interrogation of every regulatory provision. 103. The Court accordingly finds that the 2nd Respondent complied with the public participation requirements under Article 10 of the Constitution and the Statutory Instruments Act, 2013. The Petitioner’s challenge on this ground therefore fails. 104. Importantly, this conclusion is confined to process. It does not affect the Court’s separate finding on the substantive constitutionality of the deposit requirements, which is determined on their effect under Articles 27, 48 and 24. Conclusion 105. Having considered all the issues for determination, the Court makes the following findings. The deposit requirements under Section 167(2) and Section 175(2) of the Public Procurement and Asset Disposal Act, 2015 and Regulations 203 and 218 of the Public Procurement and Asset Disposal Regulations, 2020 violate Article 48 and Article 50 of the Constitution because they impose fees that are unreasonable and that impede access to justice. The said deposit requirements also violate Article 27 of the Constitution because they have a disproportionate adverse impact on economically disadvantaged groups, including women, youth, and persons with disabilities, and are not a reasonable and justifiable limitation under Article 24 of the Constitution. Regulation 10(2) of the Impugned Regulations is inconsistent with Section 29(2) of the PPADA to the extent that it requires the submission of three curriculum vitae for each slot, and is therefore null and void to that extent. Regulation 204 of the Impugned Regulations is not inconsistent with the Advocates Act and is valid. The 2nd Respondent complied with the public participation requirements under the Statutory Instruments Act, 2013 and the Constitution. 106. The Court accordingly makes the following final orders. a. A declaration be and is hereby issued that Section 167(2) of the Public Procurement and Asset Disposal Act, No. 33 of 2015 is unconstitutional and null and void to the extent that it requires a refundable deposit of not less than ten per cent of the cost of the contract as a condition for filing a request for review with the Public Procurement Administrative Review Board. b. A declaration be and is hereby issued that Section 175(2) of the Public Procurement and Asset Disposal Act, No. 33 of 2015 is unconstitutional and null and void to the extent that it requires the payment of a percentage of the contract value as security fee as a condition for filing an application for judicial review. c. A declaration be and is hereby issued that Regulation 203 of the Public Procurement and Asset Disposal Regulations, 2020 is unconstitutional and null and void. d. A declaration be and is hereby issued that Regulation 218 of the Public Procurement and Asset Disposal Regulations, 2020 is unconstitutional and null and void. e. A declaration be and is hereby issued that Regulation 10(2) of the Public Procurement and Asset Disposal Regulations, 2020 is inconsistent with Section 29(2) of the Public Procurement and Asset Disposal Act, No. 33 of 2015 and is null and void to the extent that it requires the submission of three curriculum vitae for each slot for nomination to the Public Procurement Administrative Review Board. f. A declaration be and is hereby issued that Regulation 204 of the Public Procurement and Asset Disposal Regulations, 2020 is not inconsistent with the Advocates Act, Cap 16 and is valid. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7018/eng@2026-04-29 16

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g. A permanent injunction is hereby issued restraining the operation and implementation of Section 167(2) and Section 175(2) of the Public Procurement and Asset Disposal Act, No. 33 of 2015 and Regulations 10(2), 203, and 218 of the Public Procurement and Asset Disposal Regulations, 2020. h. Each party shall bear its own costs of the Petition, given that this matter involves the resolution of important issues of public interest. i. The Court directs that a copy of this Judgment be humbly transmitted to the Clerk of the National Assembly, the Cabinet Secretary for the National Treasury and Planning, the Public Procurement Administrative Review Board, and the Public Procurement Regulatory Authority for their information. The Hon. Deputy Registrar of this Division to take the necessary action. Orders accordingly. File Closed Accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 29TH DAY OF APRIL 2026. ________________________ BAHATI MWAMUYE MBS JUDGE In the presence of: Counsel for the Petitioner – Ms. Kwamboka h/b Mr. Muganda Counsel for the 1st and 2nd Respondents – No Appearance Counsel for the 1st Interested Party- No Appearance Counsel for the 2nd Interested Party- No Appearance Counsel for the 3rd Interested Party- No Appearance Court Assistant – Mr. Sanja https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7018/eng@2026-04-29 17

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