Jared Ngisa Nyabuto v Kenya Academy Sports & 3 others

JUDGMENT Introduction 1. The petition dated 30th June 2025 is supported by the petitioner’s affidavit in support of even date and Supplementary Affidavit dated 26th September 2025. 2. The petition impugns lack of lawfulness, transparency and accountability in establishing the Constituency Sports Academies by the 1st respondent in various counties across the country. 3. The petition thus seeks the following reliefs: a) A declaration be and is hereby issued that the piloting of the impugned constituency sports academies did not meet the constitutional threshold requirements under Article 10 of the Constitution and as such they are irregular and an illegality. b) A declaration be and is hereby issued that the projects initiated by the respondents in the 23 counties in Kenya are unconstitutional, null and void for failing to comply with Articles 6(3), 10, 19(2), 27, 35, 47, 73, 201, 227 and 232 of the Constitution. c) An order of judicial review in the form of mandamus do issue from this court compelling the respondents to conduct a fresh procurement exercise to redistribute 2

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the piloting of the 37 constituency sports academies in a lawful and inclusive process in compliance with Articles 6(3), 10, 19(2), 27, 35, 47, 73, 201, 227 and 232 of the Constitution. d) An order of prohibition restraining the respondents either by themselves, agents or anyone else acting at their behest, from proceeding with the implementation or paying any tenderer and funding the listed impugned projects until they comply fully with the principles of transparency, public participation and fairness as mandated by the Constitution. e) An order of judicial review in the form of certiorari do issue from this Court to quashing the decision by the respondents in awarding the impugned constituency sports academies projects as contained in the readvertisements of tender notices due on 20th September 2024, 2nd December 2024 and 11 th April 2025 respectively. f) An order of prohibition be and is hereby issued restraining the respondents from proceeding with the implementation or funding of the said projects pending compliance with constitutional requirements. g) An order of judicial review in the form of mandamus do issue from this court compelling the respondents to disclose the criteria used and the minutes of the Kenya Academy of Sports Council meetings that decided to unfairly, illegally and unconstitutionally allocate the impugned constituency sports academies in the 23 counties in compliance with Article 35 of the Constitution and Sections 4 and 5 of the Access to Information Act 2016. 3

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h) Costs of the petition. i) Any other relief that the court deems fit to grant. 4. In opposition to the petition, the respondents filed a Replying Affidavit dated 20th August 2025. The Petitioner’s Case 5. The petitioner, a male adult of sound mind and a Kenyan citizen filed the instant petition on the basis of public interest under Article 258(2)(c) of the Constitution of Kenya asserting that his interest is to protect and uphold the rule of law and promote the tenets of good governance and constitutionalism in the Republic of Kenya. 6. The 1st respondent is a State Corporation established under Section 33 of the Sports Act No. 25 of 2013, with a mandate to; establish and manage sports training academies; promote research and development of talent in sports, in collaboration with institutions of higher learning, national stakeholders; sports collect, organizations collate, store and and other disseminate tangible and intangible historical ordinate sports courses for technical and sports administration personnel among other functions. The 2nd respondent is the Cabinet Secretary for the time being responsible for matters relating to sports. 4

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7. On or about 20th September 2024, the 1st respondent invited interested bidders through a re-advertised tender notice as published through the Government Advertising Agency, PIPP and other media platforms calling for submission of bids whose deadline was 20 th September 2024. The petitioner states that the re-advertised tender notice dated 20th September 2024 called for bids for the construction of thirty academies across the (30) pilot country constituency and sports distributed the constituency sports academies as follows:- 3 of each sports academies in Machakos and Busia, two of each in Nandi, Murang’a, Nairobi, Kwale and Kitui and one of each in Bomet, Siaya, Nyandarua, Homabay, Baringo, Uasin Gishu, Kakamega, Vihiga, Bungoma, Kiambu, Elgeyo Marakwet, Marsabit, Turkana and Wajir totalling to thirty constituency sports academies. 8. The respondent then re-advertised the tender notice again, whose deadline for submission was 2nd December 2024 whereby the proposed constituency sports academies were increased to thirty- seven. 9. The said tender notice increased the number of constituency sports academies in Elgeyo Marakwet county to four from one. The petitioner asserts that it is the only county that has four constituencies and the then Cabinet Secretary hails from that particular county and is a former Senator thereof. 5

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10. The petitioner further asserts that the following constituencies were allocated more sports academies as per the re-advertised tender notice; Bungoma 1 extra, Kiambu 1 extra, Elgeyo Marakwet 3 extra, Isiolo 1 new and Mandera 1 new. He further affirms that the respondent issued a further re-advertisement of tender notices for bids for 11 constituency academies due on 11 th April 2025. He asserts that the former Cabinet Secretary for Youth Affairs, Creative Economy and Sports under which the Academy falls was Hon. Ababu Namwamba who hails from Western Kenya which comprises of four counties namely Busia (3), Bungoma (2), Kakamega (1) and Vihiga (1) therefore the region was allocated 7 constituency sports academies which is 19% of the total available academies. Further during the term of office as CS for Sports of Hon. Kipchumba Murkomen, who is the immediate former Senator for Elgeyo Marakwet, the number of academies for Elgeyo Marakwet was increased from one to four, consisting of over 10% of all the then academies, through the 2nd December 2024 re- advertisement notice. The said increment meant that all the constituencies in Elgeyo Marakwet benefited from the piloting exercise whilst other counties had no single academy in progress. 11. The petitioner argues that the distribution of the academies is skewed in favour of the regions where the management and council of the 1 st respondent originate from and where the occupant of the 2 nd respondent’s office originate from. He 6 affirms that there is no

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constituency sports academy allocated either for Kisii and Nyamira counties which are known for producing national sports figures. Further Gusii region currently prides in Shabana FC which is playing in the Kenya Premier League. 12. He further argues that the respondent did not conduct any public participation before selecting the various counties as beneficiaries of the constituency sports academies. Further, the whole process of electing the proposed constituency sports academies was marred with lack of transparency, accountability and openness as demanded by Article 10, Chapter Six and Chapter 12 of the Constitution. Additionally, the bulk of the proposed constituency sports academies cover the entire Western Kenya counties, only one tribe in Rift Valley, Eastern Kenya and Nyanza which is contrary to the fair and equitable distribution of resources required by Articles 10, 27 and 201 of the Constitution. 13. Furthermore, there was a conflict of interest that affected the procurement pursuant to Section 66 and 68 of the Public Procurement and Asset Disposal Act. He affirms that the impugned tendering process has been carried out in a manner that is illegal, unlawful and contrary to the laid down procurement processes in particular contravening the Constitution and the Public Procurement and Disposal Act. 7

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The Respondents’ Case 14. The respondents’ response was contained in the Replying Affidavit sworn affidavit by Mr. Peter Kenyatta, the Deputy Director Supply Chain Management at the Kenya Academy of Sports. He deposed that the Kenya Academy of Sports is a state corporation established under Section 34 of the Sports Act. Following its establishment, the 1st respondent proceeded to execute its mandate which includes the identification and nurturing of sports talent, maintaining and establishing sports academies, building the capacity of sports technical personnel and conducting sports research, all with the goal of elevating sports performance in the country. In the execution of its mandate and in a bid to nurture talent and offer support to new and existing athletes, the 1 st respondent resolved to have sports academies in each of the 290 constituents to be known as constituency sports academies. 15. In 2023, in a bid to execute the vision of establishing constituency sports academies, the 1st respondent resolved to commission a pilot project in twenty-six constituencies within different counties and commissioned a feasibility study of the same. 16. The Respondents affirm that the purpose of the study was to confirm land availability and suitability with regard to accessibility to support services and infrastructure, 8

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promote sports discipline in the area, possible opportunities and challenges, possible risks and proposed mitigation strategies. In undertaking the feasibility study, the teams commissioned engaged with various key stakeholders, including the county governors and other elected leaders, the Members of the County Executive Committee responsible for sports, land officers, surveyors, physical planners and the boards of management for the schools where the academies are proposed to be set up. 17. The Respondents state that the 1st respondent first piloted the roll out in twenty-six sites as indicated in the feasibility study annexed. A major consideration in the establishment of the sports academies was the question of demand versus supply. According to the Respondents, the 1st respondent’s decision to pilot the academies in specific constituencies was largely influenced by the existing data on the number of upcoming and existing athletes who would utilize the academies. Following the positive impact and reception of the piloted academies, the 1 st respondent has continued to roll out additional academies in other constituencies in a bid to meet the 18. target of establishing academies in all the 290 constituencies, in the next ten years. 19. The Respondents depone that the academies are established after extensive consultations with the key stakeholders in the target sites. Further, in the continued 9

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engagement with stakeholders, there has been feedback including proposals by some board of management to relocate some classrooms and school facilities in order to create more space for the academies. The engagement with key stakeholders in the targeted sites including the leadership, school management and land officers, provided the 1st respondent with key data and information to inform the piloting process. The Respondents affirm that the roll out of the academies is gradual and in phases due to economic costs involved. Further that the target is to have an academy in each of the 290 constituencies. Nothing stops the establishment of more than one academy per constituency so long as the same complies with the rules of demand and supply. 20. The Respondents thus contend that the petition is premature as the roll out of the academies is still ongoing and each constituency will get an allocated academy. Further that the prayers sought in the petition cannot be granted especially prayer 4 which seeks to stop payment to the tenderer yet none of them has been joined in the petition to offer a response. 21. Further, the petitioner has not adduced evidence to show that he has complied with the provisions of the Access to Information Act prior to coming to court and thus prayer 7 is premature and in violation of the 10 principle of constitutional

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avoidance. Additionally, prayer 5 violates the principle of exhaustion because if the petitioner has an issue with the procurement process, there are set out mechanisms to address the same, which he has not invoked. 22. In rejoinder, the petitioner swore a Supplementary Affidavit dated 26th September 2025. The Petitioner contended that whilst the 1 st respondent seeks to justify the establishment of constituency level sports academies based on a feasibility study and a strategic plan, they fail to address the fundamental legal and constitutional requirements set out in the Constitution and the Sports Act. Further, the respondent’s claim of public participation lacks the necessary evidence and transparency, cementing the allegations raised in the petition about the legitimacy of the process. respondent references its Further, statutory whilst mandate the 1 st under Section 33 of the Sports Act and the Osotsi Bill, the said legal frameworks do not give the 1 st respondent carte blanche to establish sports academies without complying with other applicable legal requirements, including those related to public participation, land acquisition, transparency and procurement processes. 23. He argues that the annexed feasibility study which was conducted in October 2023 assessed the viability of establishing constituency sports academies in twenty-six sites located in twenty-six different constituencies however the petition is challenging the establishment of 37 constituency sports 11 academies in twenty-three

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counties. Therefore, the said study cannot be relied upon in establishment of the additional 11 constituency academies. The petitioner argues that the feasibility study raises a few issues such as the study was conducted only in 25 constituencies yet it refers to 26 constituencies. Further, in Nandi County the feasibility study was conducted at Nandi Hills ward and the site was identified as Nandi Tea Estate Sports grounds, however on the advert, the sites are Koitalel arap Samoei Academy within Nandi Hills Constituency and Kesengei Primary School in Aldai Constituency. In Machakos County, feasibility study was done at Kiisiki Primary School, Sinai Primary School and Kinyui Stadium however on implementation Sinai Primary School has been replaced by a site in Mwala Constituency known as Mwala Sports Grond which was not in the feasibility study. In the feasibility study, Garissa County had been allocated an academy at Lagdera’s Modogashe Secondary School however it is not among the academies being constructed currently. The feasibility study does not have details of project costs, technical and engineering designs but includes allowances. At page 12 of the feasibility study, the study refers to Kenya Secondary School Sports Association as part of its consideration, however the allocation of the academies does not reflect the actual demand, talent as exhibited at the KSSSA national finals over the years. There are 12 new academies where a feasibility study was not conducted and one in Garissa 12

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County was removed from the list. In the tender advert marked JNN3 the 1st respondent has a new site that was not in the feasibility study. The implementation of the academies is therefore without any feasibility study in the following sites; Kenya Academy of Sports at Kasarani Constituency; Kibigos Primary School in Elgeyo Marakwet; Lunyofu Sports Grounds in Budalangi Constituency; Nalondo Boys High School in Kabuchai Constituency; Kombani Football Academy at Matuga Constituency in Kwale; Kimuchu Primary School in Thika Town; Garbatula Boys High School in Isiolo South; Nzombe Sports Ground in Kitui East Constituency; St. Patrick Iten, Kapchebau Grounds both in Elgeyo Marakwet County; Kotulo Primary School in Wajir County and Elwak Baraza Park Mandera County. 24. The petitioner asserts that the feasibility study fails to provide clear evidence that the process followed the requirements of the constitution and Article 10. Further the respondent’s documents mention land availability but do not demonstrate proper land documentation such as title deeds or proof of transfer. Further, the respondent fails to provide sufficient evidence of compliance with public procurement laws during the selection of sites and the establishment of the academies. There is no indication that the procurement process for land, construction or any associated services followed the legal requirements for competitive bidding. Additionally, the feasibility study fails to detail the exact criteria used for site selection since the study was limited to only 25 constituencies. There is no 13

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explanation as to how the 1st respondent arrived at selecting the 25 sites for feasibility study. There is no evidence or justification as to why counties such as Elgeyo Marakwet were given four academies despite the fact that no feasibility study was conducted in the county and neither is there an explanation why Garissa was left out despite feasibility studies being conducted at Mogogashe Primary School nor is there any justification for changes of sites for example from Sinai Primary in Yatta to Mwala Sports Grounds in Mwala Constituency. 25. The Petitioner further argues that the feasibility study mentions site specific consultations, but there is a lack of clarity about the formal procedures followed, which raises questions about whether the public was adequately informed about the selection criteria and whether all relevant stakeholders including local communities, education officials and youth organizations were involved in a meaningful manner. The petitioner asserts that although the respondent claims that consultations took place with local authorities and school administrators, that does not constitute genuine public participation, as the consultation appears to have been limited to a select group of officials and community leaders. However, that is not supported by any evidence. 26. The petitioner affirms that there is no clear documentation to show that public notices were issued, community meetings were held or that feedback from the general public was gathered or considered in the selection 14

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of the said sites. The lack of evidence of broad public engagement is a significant concern that undermines the legitimacy of the respondent’s actions. He emphasizes the need for genuine public participation in decisions that affect the local community, especially in the establishment of sports academies that will directly impact students, parents and local residents. The respondent’s failure to provide evidence of broad based public engagement undermines the process and shows that the public was not adequately consulted. Although the respondent stated that public participation was meaningfully conducted through consultations with stakeholders such as county governors, members of parliament, MCAs, land officers and school management, it failed to provide any specific evidence or records that substantiate those claims. No meeting minutes, reports, or documentation have been presented to demonstrate that the said consultations were genuine, inclusive and in compliance with the requirements of the Constitution under Article 10. He argues that the Constitution of Kenya mandates that public participation be both transparent and inclusive in all public decisionmaking processes. Thus, in the absence of tangible evidence and documentation, it is clear that the respondents did not discharge their constitutional duty to ensure meaningful public participation and therefore in violation of Article 10 of the Constitution. 15

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27. On the respondent’s contention that the petition is premature because the process is ongoing, the petitioner deposes that legal compliance and procedural fairness are foundational to the project’s legitimacy. The failure to adhere to the required legal and constitutional standards at the current stage will irreparably undermine the entire project and cannot be remedied at a later stage. 28. The petitioner argues that annexture DO3 which is a copy of the statistics showing distribution of athletes does not support the decision of the respondent in piloting the 37 sports academies in various constituencies as Elgeyo Marakwet has only a total of 56 but has been allocated 4 sports academies which means that every constituency in the county has an academy, whereas counties such as Meru which has 96, Kajiado with 81, Kericho with 56, Kilifi with 148, Kisumu with 141, Mombasa with 229, Nakuru with 56 and Trans Nzoia with 171 have no sports academies being piloted currently. There is no justification for the respondents’ decision besides it being discriminative, unfair and lacks transparency. Nairobi City Council has the highest number at 253 but has been allocated only two academies whilst Elgeyo Marakwet with 56 has 4, Busia with 36 has 3 sports academies, Machakos with 44 has 3 academies, Kitui with 30 has been allocated 2. Further, the respondents have failed to provide a satisfactory explanation for the exclusion of counties such as Kisii, Nyamira, Nakuru, Kericho, Mombasa and Tans Nzoia which have significant sports talent and growth potential. The failure to prioritize 16

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the said counties goes against the constitutional promise of equitable development and inclusive growth, as guaranteed under Article 27 and 20 of the Constitution. 29. The petitioner argues that while the respondents justify the allocation based on demand and existing infrastructure, they fail to acknowledge that certain counties, particularly those associated with political figures and personal interests have been unduly favoured. He maintains that the allocation process lacks transparency and the failure to justify the unequal distribution of resources between counties, particularly when comparing counties with substantial sports talent reveals a systemic flaw in the selection process. The respondents have not provided any verifiable evidence of the criteria used to select counties, leaving the process opaque and vulnerable to biases. The respondents’ claim that the allocation was based on demand and infrastructure is insufficient without providing clear, objective criteria. 30. The petition was disposed of by way of written submissions. Petitioner’s Submissions 31. The petitioner identified four issues for determination as follows; whether the respondents carried out public participation; whether the respondents inequitably, with favouritism, irregularly, 17 unfairly,

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discriminatingly, opaquely and without lawful justification allocated the pilot constituency sports academies; whether the respondents failed to provide information on the decision to distribute the pilot academies and on the procurement process used in the contracts and whether the respondents breached the Public procurement and Disposal Act as read with the Constitution in allocating and piloting the constituency sports academies and awarding tenders. 32. On the first issue, the petitioner relied on the Supreme Court case of British American Tobacco Kenya PLC vs Cabinet Secretary for the Ministry of Health & 2 Others; Kenya Tobacco Control Alliance & Another (Interested Parties); Mastermind Tobacco Kenya Limited (Affected Party) [2019] KESC 15(KLR) which provided the framework for public participation as follows: - From the foregoing analysis, we would like to underscore that public participation and consultation is a living constitutional principle that goes to the constitutional tenet of the sovereignty of the people. It is through public participation that the people continue to find their sovereign place in the governance they have delegated to both the National and County Governments. Consequently, while Courts have pronounced themselves on this issue, in line with this Court’s mandate under Section 3 of the Supreme Court Act, we would like to delimit the following framework for public participation. 18

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Guiding Principles for public participation i. As a constitutional principle under Article 10(2) of the Constitution, public participation applies to all aspects of governance. ii. The public officer and or entity charged with the performance of a particular duty bears the onus of ensuring and facilitating public participation. iii. The lack of a prescribed legal framework for public participation is no excuse for not conducting public participation; the onus is on the public entity to give effect to this constitutional principle using reasonable means. iv. Public participation must be real and not illusory. It is not a cosmetic or a public relations act. It is not a mere formality to be undertaken as a matter of course just to ‘fulfill’ a constitutional requirement. There is need for both quantitative and qualitative components in public participation. v. Public participation is not an abstract notion; it must be purposive and meaningful. vi. Public participation reasonable notice 19 must and be accompanied reasonable by opportunity.

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Reasonableness will be determined on a case to case basis. vii. Public participation is not necessarily a process consisting of oral hearings, written submissions can also be made. The fact that someone was not heard is not enough to annul the process. viii. Allegation of lack of public participation does not automatically vitiate the process. The allegations must be considered within the peculiar circumstances of each case: the mode, degree, scope and extent of public participation is to be determined on a case-to-case basis. ix. Components of meaningful public participation include the following: a. clarity of the subject matter for the public to understand; b. structures and processes (medium of engagement) of participation that are clear and simple; c. opportunity for balanced influence from the public in general; d. commitment to the process; e. inclusive and effective representation; f. integrity and transparency of the process; g. capacity to engage on the part of the public, including that the public must be first sensitized on the subject matter. 20

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33. The petitioner argued that the respondents did not conduct any public participation before selecting the various counties as beneficiaries of the constituency sports academies. Further, while the respondents justify the establishment of the constituency level sports academies on the Feasibility Study and Strategic Plan, they fail to address the fundamental legal and constitutional requirements set out in the Constitution and the Sports Act. Additionally, the respondents’ claim of public participation lacks the necessary evidence and transparency. 34. The petitioner reiterated what he had deponed in his affidavits and submitted that the respondents’ actions were in violation of Article 10 and the constitutional principles of transparency and accountability. Reliance was placed in the case of Mundia vs Kenya Copyright Board & 5 Others; Kenya Dental Association & 6 Others (Interested Parties) [2025] KEHC 11144 (KLR) where the court held:- According to Mr. Nyakwara, the notice was issued on 18th November 2022 and gave the window for submissions of comments up to 5pm on 22nd November 2022. Once the petitioner attacked the process on grounds that it did not meet the constitutional 21

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threshold for public participation, the burden fell on the 1st respondent to satisfy the Court that the process constitutional complied requirements with on the public participation. I have gone through the affidavits filed on behalf of the respondents, as well as their bundle of documents. From the evidence placed before this court, the question is whether there was reasonable, meaningful and effective public participation before the tariffs were gazetted. The petitioner argued that there was no public participation while the respondents maintained that there was meaningful and effective public participation. Kenya is founded on national values and principles of governance one of which is public participation. The constitutional text in article 10(1) leaves no doubt that national values and principles of governance must be adhered to in the conduct public affairs which must be done in an open and transparent manner. In that regard, the 1st respondent was required to facilitate public participation that was reasonable, meaningful and effective both qualitatively and quantitatively. To facilitate public participation the 1 st respondent was to have taken deliberate positive measures that would make it possible for the public to receive the draft tariffs and thereafter, accord them an opportunity to contribute their views on the tariffs. 22

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That is, public participation must be reasonable and meaningful so that those interested are given an equal opportunity to know about the Bill or issue and have adequate say on it. In conducting public participation, the 1st respondent was not doing a favour to the public but fulfilling a constitutional command. The 1st respondent was required to disseminate information to the public about the tariffs; invite them to give comments but at the same time allow them reasonable opportunity to receive, read and understand the tariffs so that they could participate and have a say on the tariffs. Public participation must not be reduced to a ritual meant to merely fulfil a constitutional requirement. It must be real, meaningful and effective so that it can influence the process for which it is being undertaken. Accepting the respondents’ argument that the manner in which public participation was conducted met the threshold of meaningful and effective public participation, would reduce public participation to a farce and therefore a mockery of the Constitution. In the circumstances of this petition, the respondents did not demonstrate that the primacy of articles 10 on public participation was met both qualitatively and quantitatively since the exercise was reduced to a ritual thus, failed to meet the test of reasonable, meaningful and effective envisioned by the pronouncements. 23 public participation Constitution and as court

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35. The petitioner reiterated that the respondents did not conduct public participation before selecting the counties in which the sports academies would be constructed thus breaching Articles 10, 201 and 232 of the Constitution. Reliance was placed in the case of Gitson Energy Limited vs Francis Chachu Ganya & 6 Others [2017] KECA 769 (KLR) where the Court of Appeal held:The noble principles of public participation on matters affecting them have received statutory backing in the Fair Administrative Actions Act No. 4 of 2015 where at Section 5 it is provided: In any case where any proposed administrative action is likely to materially and adversely affect the legal rights or interests of a group of persons or the general public, an administrator shall: a) Issue a public notice of the proposed administrative action inviting public views in that regard; b) Consider all views submitted in relation to the matter before taking the administrative action; c) Consider all relevant and material facts; and d) Where the administrator proceeds to take the administrative action proposed in the notice: i. To give reasons for the decision of administrative action as taken; ii. Issue a public notice specifying the internal mechanism available to the persons directly or indirectly affected by his or her action to appeal; and 24

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iii. Specify the manner and period within which the appeal shall be lodged. 36. On the second issue, the petitioner reiterated what he had deponed in his affidavits and submitted that the distribution of the academies is skewed in favour of the regions where the management and council of the 1 st respondent originate from and where the occupant of the 2nd respondent’s office originate from. The respondents have not adequately addressed the issue of discriminatory allocation of sports academies particularly in counties such as Elgeyo Marakwet, Busia, Machakos and the underrepresentation of counties like Kisii, Trans Nzoia, Nakuru, Mombasa and Nyamira which have historically produced top national athletes. Further, the respondents unfairly and inequitably piloted the 37 constituency sports academies in 23 counties when they were able to pilot them in all 47 counties thus breaching the provisions of Article 10 of the Constitution on the national values and principles of good governance being equity, inclusiveness, good governance, integrity, transparency and accountability. To buttress that point reliance was placed in the case of Orogo vs Chairman Board of Directors Kenya Revenue Authority & Another (Petition E004 of 2023) [2024] KEHC 1968 (KLR) (1 March 2024) (Judgment) where the court stated the general justification for regional inclusion and non discrimination under the new Constitution to be:- 25

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So, the question is, what is the constitutional and legal position, on ethnic diversity and regional balance? Is it even important? The Constitution, under which Kenya is operating, and which was in force in June 2023, when the impugned recruitment was conducted, was promulgated in 2010. There was a history to it. There were challenges, of a historical nature, that it sought to address. The promulgation came shortly after the electoral violence that followed the contested elections in 2007. Issues around ethnic diversity and regional balance, in the allocation and distribution of resources, including employment opportunities in the public sector, were at the heart of that conflict, and informed the law that is the Constitution of Kenya, 2010, and the legislation passed to give it effect. There were feelings of exclusion, marginalisation and domination. The values of the Constitution of Kenya 2010 are routed in that history, and point towards the desire to steer the country and nation away from that trajectory. The preamble, for example, talks about honouring the struggle to bring about freedom and justice to the land; about being proud of the ethnic, cultural and religious diversity of the nation, and the determination to co-exist in peace and unity as one indivisible nation; about nurturing and protecting 26

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the wellbeing of communities and the nation; and about recognising the aspirations of all Kenyans for a government based on human rights, equality, freedom, democracy, social justice and the rule of law. The by-words from the preamble are justice, diversity, co-existence, peace, unity, aspirations of all Kenyans, human rights, equality, freedom, democracy, social justice and the rule of law. The third level is about the values that the Constitution has imposed on those who are subject to it, Article 10 sets out the national values and principles that all State organs, officers and all persons, who have a duty to apply or interpret the Constitution, or to enact apply or interpret the law, or who have to make or implement public policy. That pretty much covers all the organs of government, be it Parliament, the Executive, the Judiciary, the civil service, public corporations and the bureaucrats who run these organs and entities. The values that should bind them, in the discharge of their respective mandates, are patriotism, national unity, sharing and devolution of power, rule of law, democracy, participation of the people, human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination, protection of the marginalised, good governance, integrity, transparency sustainable development. 27 and accountability, and

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With respect to the specific rights and freedoms, detailed in the Bill of Rights, which may be relevant to the matter at hand, Articles 27 and 28, stand out. Article 27 states the equality principle. That all persons are equal before the law, and have a right to equal treatment and protection, and equal benefit of the law; that men and women are to be treated equally; that there discrimination based on should be no race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. The State is urged to take deliberate steps towards guaranteeing these rights, including initiating affirmative action programmes and policies to accelerate their achievement. Article 28 is on human dignity, that every person has inherent dignity and the right to have that dignity respected and protected. What I have set out is the constitutional foundation upon which State entities, like Kenya Revenue Authority, stand on, and the principles that ought to guide their daily operations. The Constitution has asserted itself to be the supreme law of Kenya, in Article 2. That would mean that whatever the Constitution has decreed must be followed, and, by virtue of Article 2(4), a departure from the constitutional prescriptions would render any act or omission invalid. 28

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37. On the third issue, the petitioner cited the case of Katiba Institute vs Presidents Delivery Unit & 3 Others [2017] KEHC 2183 (KLR) where the court held:The right to access information is a right that the individual has to access information held by public authorities acting on behalf of the state. This is an important right for the proper and democratic conduct of government affairs, for this right enables citizens to participate in that governance. For instance, successful and effective public participation in governance largely depends on the citizen’s ability to access information held by public authorities. Where they don’t know what is happening in their government and or if actions of those in government are hidden from them, they may not be able to take meaningful part in their country’s governance. In that context, therefore, the right to access information becomes a foundational human right upon which other rights must flow. And for citizens to protect their other rights, the right to access information becomes critical for any meaningful and effective participation in the democratic governance of their country. The importance of this right was fully appreciated by the drafters of our Constitution and they dutifully included Article 35 to make this right attainable as the foundation for an open, responsive, accountable and democratic government and its institutions. The Constitution therefore, grants citizens’ access to information as a constitutional right and only the same Constitution can limit that access. The Constitution is therefore clear that information held by the state is accessible by citizens and that information is available on request. What this means is that once a citizen 29

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places a request to access information, the information should be availed to the citizen without delay. Article 35 of the Constitution does not in any way place conditions for accessing information. The most important thing is that information be in possession of the state, state officer or public body. For purposes of actualizing Article 35, parliament enacted Access to Information Act 2016. Section 4 of the Act which is material, to this petition provides for the procedure to access information. It is important to note here that the right to information is not affected by the reason why a citizen seeks information or even what the public officer perceives to be the reason for seeking information. This reinforces the fact that Article 35 does not in any way limit the right to access information. On the other hand, section 5 of the Act further provides that a public entity should facilitate access to information held by it. Under section 8, a citizen who wants to access information should do so in writing with sufficient details and particulars to enable the public officer understand what information is being requested. The Act is also sufficiently clear that the information should be given without delay and at no fee, notwithstanding why the citizen wants to access information. Section 9 makes states that a decision on the request to access information should be made and communicated within 21 days. The communication should include whether the public entity has the information and whether it will provide access to the information. On the above basis, the right to access information is inviolable because it is neither granted nor grantable by the 30

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state. This is a right granted by the Constitution and is protected by the same Constitution. 38. The Petitioner argued that he has not been able to trace the initial tender notice as issued by the respondents and his demand was ignored despite the fact that it was issued in December 2024. He further argued that the respondents failed to provide information on the decision to distribute the pilot academies unfairly and on the procurement process used in the contracts despite numerous demands, in breach of Article 35 of the Constitution. 39. On the final issue, the petitioner affirmed that the tendering process has been carried out in a manner that is illegal, unlawful, and contrary to laid down procurement processes. Reliance was placed in the case of Independent Electoral and Boundaries Commission vs National Super Alliance Kenya & 6 Others [2017] KECA 436 (KLR) where the Court of Appeal held:A key issue in this appeal is to identify the constitutional and legislative framework for public participation in procurement. Public participation in procurement law is provided for inter alia through the following provisions incorporated by Section 3 of the Public Procurement and Asset Disposal Act, 2015: (i) Article 10 (2) (a) of the Constitution that refers to participation of the people; 31

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(ii) Article 201 (a) of the Constitution that refers to public participation in financial matters; (iii) Article 232 (1) (d) that requires involvement of the people in the process of policy making; (iv) Article 232 (1) (f) that requires transparency and provision to the public of timely and accurate information and (v) Article 232 (1) (g) on fair competition. (vi) Article 227 (1) which require that procurement of goods and services by procuring entities be competitive Our analysis of the emerging jurisprudence from the Supreme Court and other superior courts as well as the reading of the express provisions of Section 3 of the Public Procurement and Asset Disposal Act, 2015 as read with Articles 10 (2) (b) and 227 of the Constitution lead us to find that as a general principle (subject to limited exceptions) public participation is a requirement in all procurement by a public entity. The jurisprudence also reveals that allegation of lack of public participation must be considered in the peculiar circumstances of each case. The mode, degree, scope and extent of public participation is to be determined on a case by case basis. What is critical is a reasonable notice and reasonable opportunity for public participation. In determining what is reasonable notice, a realistic time frame for public participation should be given. In addition, the purposes and level of public participation should be indicated. Reasonableness is also to be determined 32

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from the nature and importance of legislation or decision to be made, and the intensity of the impact of the legislation or decision on the public. The length of consultation during public participation should be given and the issues for consultation. Mechanisms to enable the widest reach to members of public should be put in place; and if the matter is urgent the urgency should be explained. In Republic -v- Independent Electoral and Boundaries Commission & 3 Others ex parte Coalition for Reform and Democracy Misc. Application No 637 of 2016, the High Court held as follows: Article 227 of the Constitution provided the minimum threshold when it comes to public procurement and asset disposal. Therefore, any procurement, before considering the requirements in any legislation, rules and regulations, threshold of competitiveness had to fairness, and meet the equity, constitutional transparency, cost-effectiveness. Any other stipulation in an enactment or in the tender document could only be secondary to what the Constitution dictated….A person who felt that a procurement process did not meet the constitutional threshold provided for under Article 227 of the Constitution, and had no other recourse in law, would find recourse in the High Court. The High Court, under Article 165(3) of the Constitution, has jurisdiction to hear any question on the interpretation of the Constitution and to determine whether anything said to be done under the authority of the Constitution or of any law was inconsistent with, or in contravention of, the Constitution. 33

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40. Further the court held as follows on the justiciability and enforceability of Article 10 on its own or in conjunction with other articles or statutes:In our view, analysis of the jurisprudence from the Supreme Court leads us to the clear conclusion that Article 10 (2) of the Constitution is justiciable and enforceable immediately. For avoidance of doubt, we find and hold that the values espoused in Article 10 (2) are neither aspirational nor progressive; they are immediate, enforceable and justiciable. The values are not directive principles. Kenyans did not promulgate the 2010 Constitution in order to have devolution, good governance, democracy, rule of law and participation of the people to be realized in a progressive manner in some time in the future; it could never have been the intention of Kenyans to have good governance, transparency and accountability to be realized and enforceable gradually. Likewise, the values of human dignity, equity, social justice, inclusiveness and nondiscrimination cannot be aspirational and incremental, but are justiciable and immediately enforceable. Our view on this matter is reinforced by Article 259(1)(a) which enjoins all persons to interpret the Constitution in a manner that promotes its values and principles. Consequently, in this appeal, we make a firm determination that Article 10 of the Constitution is justiciable and enforceable and violation of the Article can found a cause of action either on 34

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its own or in conjunction with other Constitutional Articles or Statutes as appropriate. The Respondents’ Submissions 41. The respondents identified three issues for determination as follows: whether the petitioner has proved any establishment, violation of allocation the Constitution in the and procurement of the constituency sports academies; whether the respondents acted within their constitutional and statutory mandate in establishing and implementing the constituency sports academies programme and whether the petitioner is entitled to the reliefs sought. 42. On the first issue, the respondents submitted that the petitioner has failed to discharge the legal and evidentiary burden necessary to establish any constitutional violation. They further submitted that a party alleging violation of constitutional rights and freedoms bears the burden of pleading and proving with reasonable precision, the specific constitutional provisions allegedly violated, the manner of violation and the nexus between the impugned conduct and the alleged infringement. Reliance was placed in the case of Japheth Ododa Origa vs Vice Chancellor University of Nairobi & 2 Others [2018] KEHC 4861 (KLR) where the court stated:Precision in pleading is vital in constitutional petitions because it enables the opposite party to fully understand the case they face and be in a 35

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position to adequately respond to it. It also enables the court to decipher the issues brought before it for adjudication. It helps in avoiding surprises and ambiguities in the litigation but more importantly it shows the link between the aggrieved party, the constitutional provisions at play and the possible infringement. 43. The respondents argued that although the petitioner invoked several constitutional provisions, the petition is largely premised on dissatisfaction with the allocation and implementation of the sports academies rather than demonstrable constitutional violations. The petitioner has failed to place before the court cogent evidence proving illegality, discrimination, procedural impropriety or constitutional breach on their part. They further submitted that the feasibility study report demonstrates that stakeholder consultations were undertaken during the feasibility study process which included members of the national assembly, local community members, education officials, school administrators, public administration officers and sports administrators. Reliance was placed in the Supreme Court decision in British American Tobacco Kenya PLC vs Cabinet Secretary for the Ministry of Health & 2 Others; Kenya Tobacco Control Alliance & Another (Interested Parties); Mastermind Tobacco Kenya Limited (Affected Party) [2019] KESC 15(KLR) which emphasized that public participation must be real and not 36

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illusory, but equally cautioned that the standard is not one of unanimity or exhaustive inclusion of every individual. The court stated:From the foregoing analysis, we would like to underscore that public participation and consultation is a living constitutional principle that goes to the constitutional tenet of the sovereignty of the people. It is through public participation that the people continue to find their sovereign place in the governance they have delegated to both the National and County Governments. Consequently, while Courts have pronounced themselves on this issue, in line with this Court’s mandate under Section 3 of the Supreme Court Act, we would like to delimit the following framework for public participation. Guiding Principles for public participation i. As a constitutional principle under Article 10(2) of the Constitution, public participation applies to all aspects of governance. ii. The public officer and or entity charged with the performance of a particular duty bears the onus of ensuring and facilitating public participation. iii. The lack of a prescribed legal framework for public participation is no excuse for not conducting public participation; the onus is on the public entity to give effect to this constitutional reasonable means. 37 principle using

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iv. Public participation must be real and not illusory. It is not a cosmetic or a public relations act. It is not a mere formality to be undertaken as a matter of course just to ‘fulfill’ a constitutional requirement. There is need for both quantitative and qualitative components in public participation. v. Public participation is not an abstract notion; it must be purposive and meaningful. vi. Public participation reasonable notice must and be accompanied reasonable by opportunity. Reasonableness will be determined on a case to case basis. vii. Public participation is not necessarily a process consisting of oral hearings, written submissions can also be made. The fact that someone was not heard is not enough to annul the process. viii. Allegation of lack of public participation does not automatically vitiate the process. The allegations must be considered within the peculiar circumstances of each case: the mode, degree, scope and extent of public participation is to be determined on a case to case basis. ix. Components of meaningful include the following: 38 public participation

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a. clarity of the subject matter for the public to understand; b. structures and processes (medium of engagement) of participation that are clear and simple; c. opportunity for balanced influence from the public in general; d. commitment to the process; e. inclusive and effective representation; f. integrity and transparency of the process; g. capacity to engage on the part of the public, including that the public must be first sensitized on the subject matter. 44. Similar reliance was placed in the case of Nyathuna Quarry Self Help Group vs County Government of Nakuru & Attorney General [2019] KEHC 5971 (KLR) where the court stated:In Robert N. Gakuru & Others vs Governor Kiambu County & 3 Others (2014) eKLR, Odunga J cited the South African Constitutional Court decision in Doctors for Life International vs Speaker of the National Assembly & Others (CCT 12/05) (2006) ZACC 11: 2006(2) BCLR 1399 (CC) SA416 (CC) which extensively dealt with the principles in respect of public participation. From my reading of that decision which was cited to me by both parties, there are several principles relevant to the present petition. These are that; the general right to participate in the conduct of public affairs includes engaging the public in public debate and dialogue with elected representatives at public hearings; duty to facilitate 39

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public participation in the conduct of public affairs; the duty to facilitate participation; the an duty appropriate to provide degree a of reasonable opportunity to members of the public to know about the issues and have an adequate say and what constitutes a reasonable opportunity is dependent on the issue at hand. 45. The respondents argued that the petitioner failed to demonstrate which stakeholder was excluded from the process, what views were ignored by them, how the alleged omission prejudiced him or how the impugned programme would have materially differed had additional participation been undertaken. Further, public participation does not require nationwide consensus or universal approval before implementation of every public project as to impose such a standard would cripple public administration and render implementation of government programmes impracticable. 46. On the allegation by the petitioner that the allocation of the academies was discriminatory, inequitable and politically motivated, the respondents submitted that the said claims are unsupported by evidence. The selection of pilot sites was based on objective criteria including land suitability, infrastructure, accessibility, institutional partnerships, sports disciplines and technical feasibility as outlined in the Kenya Academy of Sports Strategic Plan 2022-2027. The plan demonstrates that the impugned academies form part of 40 a progressive nationwide

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programme intended to eventually establish sports academies in all constituencies across the country. They argued that the fact that certain counties were included in the pilot phase while others await subsequent phases cannot amount to unconstitutional discrimination. Reliance was placed in the case of EG & 7 Others vs Attorney General; DKM & 9 Others (Interested Parties); Katiba Institute & Another (Amicus Curiae) [2019] KEHC 11288 (KLR) where the court emphasized that not every differentiation amounts to unconstitutional discrimination and held that differentiation is permissible where it bears a rational connection to a legitimate governmental purpose. The court stated:In that regard, therefore, it is not every differentiation that amounts to discrimination. It is always necessary to identify the criteria that separates legitimate differentiation from constitutionally differentiation. Put differently, differentiation permissible it does constitute if not impermissible is unfair discrimination. The jurisprudence on discrimination suggests that law or conduct which promotes differentiation must have a legitimate purpose and should bear a rational connection between the differentiation and the purpose. 47. to The respondents argued that the petitioner has failed demonstrate that they targeted, excluded or differentiated any county on prohibited grounds or that the allocation process lacked objective justification. The petitioner’s argument is essentially that some counties 41

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deserved academies more than others which amounts to disagreement allocation with policy prioritization and rather than proof constitutional of resource discrimination. 48. On the issue of violation of Article 35 of the Constitution on access to information, the respondents submitted that the petitioner has not demonstrated that he properly invoked the procedures under the Access to Information Act or that they unlawfully refused to provide information requested. To buttress that point, reliance was placed in the case of Jack Mukhongo Munialo & 12 Others vs Attorney General & 2 Others [2017] eKLR where the court stated:In my view, therefore, Article 35 is not absolute and cannot operate in isolation. It must be read harmoniously with other Articles of the Constitution. Even with section 14(2), any citizen who wants information from the state can still get it under this Article as read with Access to Information Act. Moreover, the law requires one to write to the state officer concerned and the state officer or organ has an obligation to supply the information in his possession. Article 35 does not require the government or its officers to publish such information for consumption by the general public. The Article is clear that information should be given for purposes of exercising or protecting a right or fundamental freedom. The Act (Access to Information Act) provides a clear process for 42

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seeking information and how that information should be processed. 49. In the present case, the respondents argued that the petition merely contains generalized allegations of non disclosure without evidence of any formal request and refusal thereof. Further, substantial information relating to the project including the Strategic Plan and Feasibility Study report has already been disclosed. Regarding Article 47 on fair administrative action, the establishment and implementation of the programme followed statutory authority, institutional planning and technical evaluations. The petitioner has not demonstrated any administrative action that was unlawful, unreasonable or procedurally unfair nor has he shown any vested right or legitimate expectation that a particular county or constituency was constitutionally entitled to receive a sports academy during the pilot phase. 50. On the alleged violation of Article 227 of the Constitution and public procurement principles, the respondents submitted that the petitioner has failed to identify the specific procurement provision allegedly violated, the tender process complained of, any bidder prejudiced by the process or any evidence of illegality or impropriety in the procurement proceedings. To the contrary, the material before the court demonstrates that the procurement processes were publicly advertised through tender notices and re-advertisements which in itself demonstrates openness 43 and competitive

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procurement. Thus, the respondents submitted that the petitioner has failed to prove any violation of Articles 10, 27, 35, 47, 201, 227 and 232 of the Constitution in the establishment, allocation and procurement of the constituency sports academies programme. 51. On the second issue, the respondents reiterated what they deponed in their affidavit and submitted that there is no legal requirement that a pilot programme must remain fixed or static. Public bodies are entitled to adjust and expand implementation based on institutional needs, available resources and administrative considerations, provided such actions remain within the confines of the law. Further, the petitioner’s submissions place significant reliance on alleged inconsistencies between the feasibility study and eventual implementation sites, however such variations do not in themselves, render the entire programme unlawful or unconstitutional. Public projects of the current magnitude are inherently dynamic and implementation decisions may evolve depending on factors such as land availability, accessibility, institutional partnerships, budgetary considerations and administrative feasibility. The respondents cited the case of Mate & Another vs Wambora & Another (Petition 32 of 2014) [2017] KESC 1 (KLR) (15 December 2017) (Judgment) where the court emphasized the need for judicial restraint where public bodies act within their constitutionally and statutorily assigned mandates. The court stated:44

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Interpretation of the Constitution calls for a delicate balance in the respective mandates of the different arms of government. While such refinements in the reserved governmental mandates had focused assessment the Court, at High not elicited ex parte conservatory orders were made; the effect being to hamstring the due performance of the constitutional mandate of the County Assembly. Notwithstanding the conventional judicial perception of ultimacy in judicial orders, a question remains; what is the tenability of such orders that directly abrogate the discharge of commended legislative agency process? From the facts of this case, it is clear to us that the integrity of court orders stands to be evaluated in terms of their inner restraint, where the express terms of the Constitution allocate specific mandates and functions to designated agencies of the State. Such restraint, in the context of express mandate allocation under the Constitution is essential, as a scheme for circumventing conflict and crisis, in the discharge of governmental responsibility. No governmental agency should encumber another to stall the constitutional motions of the other. The best practices from the comparative lesson signal that the judicial organ must practice the greatest care, in determining the merits of each case. 52. Further reliance was placed in Pevans East Africa Ltd & Another vs Chairman Betting Control & Licensing Board & 7 Others [2018] KECA 332 (KLR) where the court provided:Where the Constitution had reposed specific functions in an institution or organs of State, the courts must 45

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give those institutions or organs sufficient leeway to discharge their mandates and only accept an invitation to intervene when those bodies are demonstrably shown to have acted in contravention of the Constitution, the law or that their decisions are so perverse, so manifestly irrational that they cannot be allowed to stand under the principles and values of our Constitution. Courts must decline to intervene at will in the constitutional spheres of other organs, particularly when they are invited to substitute their judgment over that of the organs in which constitutional power reposes because those organs have expertise in their area of mandate, which the courts do not normally have. We must accordingly shun invitation to dabble in matters of national economic policy when what is placed before us are the views of only two players in one industry. We have already adverted to the view of the Supreme Court in the Speaker of the Senate & Another vs Attorney General & 4 Others (supra) where it emphasized that the courts cannot supervise the working of Parliament and that the institutional comity between the three arms of Government should not be endangered by unwarranted intrusion by any arm into the mandate of other arms. 53. The respondents argued that the petitioner has not shown that they acted outside their statutory powers or in contravention of any express legal provision to warrant the intervention of the court. Furthermore, the petitioner has not demonstrated any bad faith, ulterior motive or abuse of power. Allegations of political influence or favouritism remain speculative 46 and unsupported by

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evidence. Reliance was placed in the case of Communications Commission of Kenya & 5 Others vs Royal Media Services Limited & 5 Others [2014] eKLR where the court held:Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental rights or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his grievance. The principle emerges clearly from the High Court decision in Annarita Karimi Njeru vs Republic (1979) KLR 154; the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened and the manifestation of contravention or infringement. Such a principle plays a vital role as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement. 54. The respondents submitted that the petitioner is not entitled to any of the reliefs sought in the petition as they are discretionary and can only be granted upon proof of a clear constitutional or statutory violation. To buttress that point, reliance was placed in the case of Ntayia & Another vs Ntayia (Constitutional Petition E331 of 2024) [2026] KEHC 1351 (KLR) (22 January 2026) (Judgment) where the court held:On the question of reliefs, declaratory orders and compensation under Article 23(3) of the Constitution 47

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are discretionary and contingent upon proof of a constitutional violation. As affirmed in Gitobu Imanyara & 2 Others vs Attorney General [2016] eKLR damages for constitutional breaches are not automatic; they are awarded only where a violation and resultant prejudice are proved. 55. The respondents submitted that they acted within their statutory mandate under the Sports Act and in line with the Kenya Academy of Sports Strategic Plan 20222027 following feasibility assessments. The declarations sought are therefore unsupported by law and evidence. The petitioner has not demonstrated any illegality, irrationality or procedural impropriety. The grievances raised essentially concern policy choices regarding prioritisation and allocation of resources, matters falling squarely within their administrative discretion. 56. They further submitted that the petitioner’s request for certiorari to quash the tender notices and decisions, as well as orders of prohibition and mandamus to halt the programme and compel a fresh process, must fail as granting such improperly orders usurping would the amount policy and to the court administrative mandate vested in them. Whilst relying on the case of Pevans East 57. Africa Ltd & Another vs Chairman Betting Control & Licensing Board & 7 Others [2018] KECA 332 (KLR) the respondents submitted that the court 48

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emphasized that courts should accord public institutions sufficient latitude to discharge their constitutional and statutory mandates and should only intervene where clear illegality or constitutional violation has been demonstrated. The respondents further submitted that granting the reliefs would gravely prejudice public interest. Halting or invalidating the programme on the basis of speculative and unsubstantiated allegations would undermine an important public initiative intended to benefit Kenyan youth and the wider public. Analysis and Determination 58. Having carefully considered the respective parties position in this matter, this Court distils the following to be the issues for determination in this case: a) Whether the respondents carried out effective public participation in selecting the various counties as beneficiaries of the constituency sports academies. b) Whether the respondents violated the petitioner’s right of access to information. c) Whether the Procurement respondents and Disposal breached Act as the read Public with the Constitution in allocating and awarding the tenders on the constituency sports academies. d) Whether the petitioner is entitled to the orders sought. 49

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Whether the respondents carried out public participation in selecting the various counties as beneficiaries of the constituency sports academies. 59. Public democracy participation model where invokes a participatory citizens are continuously involved in decisions that affect their lives beyond the periodic electoral cycles through which they elect their representatives. Through public participation, the input of the public (or those with stake in an issue) is sought early enough so that their perspective can inform and help shape the final outcome. 60. Article 10(2)(a) of the Constitution includes public participation as forming part of the national values and principles of governance that a State organ, State officer or any public body or officer is mandatorily required to observe when applying or interpreting the Constitution, enacting, applying or interpreting any law or making or implementing any policy decision. 61. The Supreme Court provided the framework for public participation in the case of British American Tobacco Kenya PLC vs Cabinet Secretary for the Ministry of Health & 2 Others; Kenya Tobacco Control Alliance & Another (Interested Parties); Mastermind Tobacco Kenya Limited (Affected Party) [2019] KESC 15(KLR) as follows:- 50

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From the foregoing analysis, we would like to underscore that public participation and consultation is a living constitutional principle that goes to the constitutional tenet of the sovereignty of the people. It is through public participation that the people continue to find their sovereign place in the governance they have delegated to both the National and while Courts Consequently, County Governments. have pronounced themselves on this issue, in line with this Court’s mandate under Section 3 of the Supreme Court Act, we would like to delimit the following framework for public participation. Guiding Principles for public participation i. As a constitutional principle under Article 10(2) of the Constitution, public participation applies to all aspects of governance. ii. The public officer and or entity charged with the performance of a particular duty bears the onus of ensuring and facilitating public participation. iii. The lack of a prescribed legal framework for public participation is no excuse for not conducting public participation; the onus is on the public entity to give effect to this constitutional principle using reasonable means. iv. Public participation must be real and not illusory. It is not a cosmetic or a public relations act. It is not a mere formality to be undertaken as a matter of course just 51 to ‘fulfill’ a constitutional

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requirement. There is need for both quantitative and qualitative components in public participation. v. Public participation is not an abstract notion; it must be purposive and meaningful. vi. Public participation must be accompanied by reasonable notice and reasonable opportunity. Reasonableness will be determined on a case to case basis. vii. Public participation is not necessarily a process consisting of oral hearings, written submissions can also be made. The fact that someone was not heard is not enough to annul the process. viii. Allegation of lack of public participation does not automatically vitiate the process. The allegations must be considered within the peculiar circumstances of each case: the mode, degree, scope and extent of public participation is to be determined on a case to case basis. ix. Components of meaningful public participation include the following: a. clarity of the subject matter for the public to understand; b. structures and processes (medium of engagement) of participation that are clear and simple; c. opportunity for public in general; 52 balanced influence from the

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d. commitment to the process; e. inclusive and effective representation; f. integrity and transparency of the process; g. capacity to engage on the part of the public, including that the public must be first sensitized on the subject matter. 62. In Republic v Independent Electoral and Boundaries Commission (I.E.B.C.) Ex parte National Super Alliance (NASA) Kenya & 6 others Judicial Review No. 378 of 2017; [2017] eKLR among the issues for consideration before the High Court was whether the IEBC was constitutionally obliged to facilitate public participation as part of the tendering process. The High Court allowed the Petition and quashed the award of the tender for lack of public participation. It ordered that the procurement process begin de novo in accordance with the Constitution. IEBC appealed to the Court of Appeal. In upholding the appeal, setting aside the High Court decision, the Court of Appeal considered the big issue of justifiability and enforceability of Article 10 of the Constitution, which encompasses the principle of public participation. Electoral The and Appellate Boundaries Court in Independent Commission (IEBC) v National Super Alliance(NASA) Kenya & 6 others, Civil Appeal No. 224 of 2017; [2017] eKLR held that Article 10(2) and the principles therein are for immediate realization, thus: In our view, analysis of the jurisprudence from the Supreme Court leads us to the clear conclusion that Article 10 (2) of 53

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the Constitution is justiciable and enforceable immediately. For avoidance of doubt, we find and hold that the values espoused in Article 10 (2) are neither aspirational nor progressive; they are immediate, enforceable and justiciable. The values are not directive principles. 63. From the record, the petitioner contends that the respondents failed to conduct public participation before arriving at the counties where the sports academies would be piloted and constructed. The Petitioners case is that the process was undertaken without the inputs from the public that would have properly informed the decision that would eventually be made. However, the respondents maintained that there was meaningful and effective public participation as they carried studies in which the views of the various feasibility stakeholders were gathered and their inputs taken into account in coming up with the list among many other factors. 64. The constitution as the supreme law binds all persons, state organs and public officers in the discharge of their duties. Article 3(1) obligates every person to respect, uphold and defend the Constitution. Every person includes the 1st respondent as a state agency. 65. Public participation being a founding value is central in governance, legislative and other processes. In this regard, the 1st respondent states that it engaged various stakeholders including the county governors, elected members of county and executive committee members of 54

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the County responsible for sports, land officers, surveyors, physical planners and the boards of management for the schools where the academies are proposed to be set up. 66. There is however no evidence to demonstrate that the general public was actually involved beyond this list of officialdom during the said consultations. 67. Constitutionally, the 1st respondent was bound to facilitate both quantitative and qualitative public participation that is reasonable, meaningful and effective. The 1 st respondent was required to undertake positive steps to engage the public and grant the members of the public an opportunity to contribute their views on establishment of the sports academies including where they ought to have been situated. In fact, while the feasibility studies that had been carried out and the criteria for the selection were potentially useful in the identification process, they were not disseminated to the public and stakeholders with invitation to give comments with a view to enriching any selection criteria that was to be adopted. Instead, the 1st Respondent appears to have framed and proceeded with the formulation of the selection criteria without any input by the public thereby evoking claims of a discriminative selection which could have been avoided by carrying out a genuine public participation process. 55

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68. There is no evidence that the 1 st respondents carried out such an exercise, the 1 st respondent seems to have engaged with members of the government and board management of the various schools. The question thus becomes; can the public participation process undertaken in the circumstances be considered sufficient? 69. My considered view is that the exercise undertaken by the respondents fell short of the standard of public participation that is both quantitate and qualitative within the meaning Article 10 and as expounded in various judicial precedents on public participation hence it is finding of this Court that the alleged public participation carried out by the 1 st Respondent did not meet the threshold of reasonable, meaningful and effective public participation as envisioned by the Constitution and elaborated in judicial precedents. Whether the respondents violated the petitioner’s right of access to information. 70. The proactive disclosure of information by the State is a cornerstone to democratic governance as provides the citizens with information to monitor governmental actions by ensuring that they are undertaken in compliance with the Constitution and the law. 56

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71. Article 35 of the Constitution provides:- 1) Every citizen has the right of access toa) Information held by the State; and b) Information held by another person and required for the exercise or protection of any right or fundamental freedom. 2) Every person has the right to the correction or deletion of untrue or misleading information that affects the person. 3) The State shall publish and publicise any important information affecting the nation. 72. The constitution is therefore clear that information held by the state is accessible by citizens and that information is available on request. Once a citizen places a request to access information, the information should be availed to the citizen without delay. Article 35 of the Constitution does not in any way place conditions for accessing information. The most important thing is that the information be in possession of the state, state officer or public body. 73. For purposes of actualizing Article 35, parliament enacted the Access to Information Act 2016. Section 4 of the Act provides for the procedure to access information. It provides- 57

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1) Subject to this Act and any other written law, every citizen has the right of access to information held bya) The State; and b) Another person and where that information is required for the exercise or protection of any right or fundamental freedom. 2) Subject to this Act, every citizen’s right to access information is not affected bya) Any reason the person gives for seeking access; or b) The public entity’s belief as to what are the person’s reasons for seeking access. 3) Access to information held by a public entity or a private body shall be provided expeditiously at a reasonable cost. 4) This Act shall be interpreted and applied on the basis of a duty to disclose and non disclosure shall be permitted only in the circumstances exempted under section 6. 5) Nothing in this Act shall limit the requirement imposed under this Act or any other written law on a public entity or a private body to disclose information. 74. Further Section 5 of the Act provides that a public entity should facilitate access to information held by it. Under Section 8, a citizen who wants to access information should do so in writing with sufficient details and particulars to enable the public officer understand what 58

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information is being requested. The Act is also sufficiently clear that the information should be given without delay and at no fee, notwithstanding why the citizen wants to access information. Section 9 states that a decision on the request to access information should be made and communicated within 21 days. The communication should include whether the public entity has the information and whether it will provide access to the information. 75. On the above basis, the right to access information is inviolable because it is neither granted nor grantable by the state. This is a right granted by the Constitution and is protected by the same Constitution. In the case of Nairobi Law Monthly v Kenya electricity Generating Company & 2 Others (supra) the Court stated of what the state should bear in mind when considering the request to access information.; The…consideration to bear in mind is that the right to information implies the entitlement by the citizen to information, but it also imposes a duty on the State with regard to provision of information. Thus, the State has a duty not only to proactively publish information in the public interest-this, I believe, is the import of Article 35(3) of the Constitution of Kenya which imposes an obligation on the State to ‘publish and publicize any important information affecting the nation’, but also to provide open access to such specific information as people may require from the State… 59

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The recognized international standards or principles on freedom of information,… include maximum disclosure: that full disclosure of information should be the norm; and restrictions information and should exceptions only apply to in access very to limited circumstances; that anyone, not just citizens, should be able to request and obtain information; that a requester should not have to show any particular interest or reason for their request; that ‘Information’ should include all information held by a public body, and it should be the obligation of the public body to prove that it is legitimate to deny access to information.” 76. The Court then went on to state at paragraph 56; State organs or public entities … have a constitutional obligation to provide information to citizens as of right under the provisions of Article 35(1)(a)....they cannot escape the constitutional requirement that [they provide access to such information as they hold to citizens.” 77. In the case of Trusted Society of Human Rights Alliance & 3 Others v Judicial Service Commission [2016]eKLR, the Court reaffirmed the position that the Constitution does not limit the right to access information when it stated; Article 35(1) (a) of the Constitution does not seem to impose any conditions precedent to the disclosure of information by the state. I therefore agree with the position encapsulated in The Public’s Right to Know: 60

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Principles on Freedom of Information Legislation – Article 19 at page 2 that the principle of maximum disclosure establishes a presumption that all information held by public bodies should be subject to disclosure and that this presumption may be overcome only in very limited circumstances and that public bodies have an obligation to disclose information and every member of the public has corresponding right to receive information. Further the exercise of this right should not require individuals to demonstrate a specific interest in the information. 78. The importance of the right to access information as a founding value of constitutional democracy was dealt with by the Constitutional Court of South African in the case of President of Republic of South Africa v M & G Media (supra) where the Court stated that:The constitutional guarantee of the right of access to information held “accountability, by the state responsiveness gives and effect to openness” as founding values of our constitutional democracy. It is impossible to hold accountable a government that operates in secrecy. The right of access to information is also crucial to the realization of other rights in the Bill of Rights. The right to receive or impart information or ideas, for example, is dependent on it. In a democratic society such as our own, the effective exercise of the right to vote also depends on the right of access to information. For without access to information, the ability of citizens to make responsible political decisions and public life is undermined. 61 participate meaningfully in

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79. The right to access information as a basis for accountability, responsiveness and openness was emphasized in the case of Brummer v Minister for Social Development & Others (supra) where the Court stated:The importance of this right too, in a country which is founded on values of accountability, responsiveness and openness, cannot be gainsaid. To give effect to these founding values, the public must have access to information held by the state. Indeed one of the basic values and principles governing public administration is transparency. And the Constitution demands that transparency “must be fostered by providing the public with timely, accessible and accurate information.” Apart from this, access to information is fundamental to the realization of the rights guaranteed in the Bill of Rights. For example, access to information is crucial to the right to freedom of expression which includes freedom of the press and other media and freedom to receive or impart information or ideas. 80. was In the present petition, the letter seeking information written on 11th December 2024 through the petitioner’s advocates on record although the letter is not addressed to the 1st respondent. In fact there is no indication in terms of address as to who the letter was addressed to. Furthermore, the petitioner has not indicated how or when he delivered the letter and therefore the court cannot tell whether the letter was delivered. 62

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81. Consequently, it is my view that the petitioner has not established that his right to access of information was violated by the respondents. Whether the Procurement respondents and Disposal breached Act as the read Public with the Constitution in allocating and awarding the tenders on the constituency sports academies. 82. The preamble to the Public Procurement and Asset Disposal Act, 2015 stipulates that it is an Act of Parliament to give effect to article 227 of the Constitution and to provide procedures for efficient public procurement and for assets disposal by public entities and for connected purposes. From the preamble, it is manifest that the provisions of the Public procurement and Asset Disposal Act are replica of Article 227 of the Constitution and therefore all the provisions of the Act must be viewed from that perspective. 83. Section 3 of the Public Procurement and Disposal Act provides:Public procurement and asset disposal by State organs and public entities shall be guided by the following values and principles of the Constitution and relevant legislation- i. The national values and principles provided for under Article 10; 63

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ii. The equality and freedom from discrimination provided for under Article 27; iii. Affirmative action programmes provided for under Articles 55 and 56; iv. Principles of integrity under the Leadership and Integrity Act; v. The principles of public finance under Article 201; vi. The values and principles of public service as provided for under Article 232; vii. Principles governing the procurement profession, international norms; viii. ix. Maximisation of value for money; Promotion of local industry, sustainable development and protection of the environment; and x. 84. Promotion of citizen contractors. Pursuant to Section 4 of the Act, the Procurement Act applies to all state organs and public entities with respect to procurement planning; procurement processing; inventory and asset management; disposal of assets and contract management. It is not in dispute that the 1 st respondent is a state organ and the Act applies to it. 85. The Supreme Court and other superior courts have had occasion to consider the provisions of Section 3 of the Public Procurement and Asset Disposal Act and Articles 10 and 227 of the Constitution in so far as they relate to procurement of goods and services. 64

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86. In Communication Commission of Kenya -v- Royal Media Services & 5 Others (supra) the Supreme Court in abridged relevant excerpts expressed itself as follows:Public participation calls for the appreciation by State, Government and all stakeholders implicated in this appeal that the Kenyan citizenry is adult enough to understand what its rights are… Although CCK (now CAK) deployed the procurement procedure in the Public Procurement and Disposal Act, in granting a BSD license to the 5thAppellant and denying the same to the 1 st, 2nd and 3rd Respondents; this Court takes judicial notice of the fact that this was no ordinary procurement of goods and services. This was a licensing process for an extremely important and yet finite public resource-SPECTRUM. The licensing was preceded by years of planning and international engagement. Significant amounts of public funds were expended in policy formulation to prepare the country for migration from analogue to digital transmission of broadcast content. Yet the decision by CCK to deny a licence to the 1st, 2nd and 3rd Respondents appears in our view not to have been informed by the imperatives of the values of our Constitution as decreed in Article 10. …..CCK was bound to conduct its affairs more responsibly and transparently in tune 65

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with our agency constitutional chose to values. be Instead, hamstrung by the the technicalities of procedure as if this was an ordinary procurement of goods and services. It is in this regard that we agree with Maraga J.A’s observation that CCK was operating as if the Constitution did not exist. We will now consider the issue raised as to the fairness or otherwise of the procurement process. Samuel Kamau Macharia deponed that in May 2011, the 1st Appellant invited expression of interests from parties interested in obtaining a licence for national broadcast-signal distribution. The expressed interest, 1st and and 2nd Respondents submitted relevant documentation through Nation Signal Networks. This application/bid was rejected at the mandatory-evaluation stage, for failing to meet the bid/bond-security validity period of 120 days. The bond-security was a precondition in the tender process [see paragraphs 18 to 20]. Does the 1st Appellant have powers in law to impose such conditions in the procurement process in respect of a BSD licence? Section 46 (1) grants the 1st Appellant powers to restrict conditions as it may deem necessary, for granting of a BSD licence. The 1st Appellant, therefore, properly exercised a power within its province, to prescribe conditions for the grant of a BSD licence. 66

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The 1st Appellant was conscious of the mandatory requirements of the Public Procurement and Disposals Act (No. 3 of 2005….) As provided in Section 27(1) of the Public Procurement and Disposal Act, the 1st Appellant had a duty in law to adhere to the procurement regulations before granting a licence to a third party to provide the service of signal distribution. The procurement of signal distribution services was, therefore, a venture sanctioned by law. Further the processes 1st Appellant’s were constitutional in tender consonance stipulation in Article committee with the 227, that goods and services be contracted for in a system that is fair, equitable, transparent, competitive and cost-effective. In this context, it is clear that the Court of Appeal’s order, that the 1st, 2nd and 3rd Respondents be granted a BSD licence without undergoing the procurement process, lacks a foundation in law….. The Appellate Court’s decision, thus, stood in contradiction to Article 227 of the Constitution, and Section 27(1) of the Public Procurement and Disposal Act. With due respect, there was no lawful basis for the orders that the 1st, 2nd and 3rd Respondents be granted a BSD licence as a matter of right. With regard to the claims of the parties in this case, the Court makes the following Orders: The Orders of the Court of Appeal made on the 28th of March, 2014 are hereby set aside. 67

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The Court signals certain directions necessitated by the special circumstances of this case, which will have a bearing on appropriate constitutional initiatives by other agencies of governance. These are as follows: Most importantly, CAK must re-align its operations and licensing procedures so as to be in tune with Articles 10, 34 and 227 of the Constitution.” (Emphasis added). 87. In Meru Bar, Wines & Spirits Owners Self Help Group (Suing through its secretary) Ibrahim Mwika v- County Government of Meru Petition No. 32 of 2014; [2014] eKLR the learned judge expressed herself thus: Under the new Constitutional dispensation, public participation is a requirement in the formulation of legislation. The participation of people is one of the National values and principles of governance under Article 10(2) (a) of the Constitution of Kenya, 2010. … I am satisfied that the Respondent effectively and extensively notified, involved and took into account views of the public in the process of enacting the Meru County Alcoholic Control Drinks Act No. 3 of 2013 as required under Article 10 and 196 of the Constitution of Kenya 210 and section 3(f), 87 and 91 of County Government Act No. 17 of 2013. 68

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88. In Kituo Cha Sheria & another -v- Central Bank of Kenya & 8 others (supra), the High Court correctly noted that every case in which an allegation of lack of public participation is alleged must be considered in the peculiar circumstances of the case. 89. In Kenya Transport Association -v- Municipal Council of Mombasa & Another – Petition No. 6 of 2011; [2011] eKLR, Ojwang, J. (as he then was) in dealing with a procurement violation of inter alia Articles 10 (2) (b) and 27 of the Constitution stated that in parity with the Constitution, the Public Procurement and Asset Disposal Act, 2015 regulates procurement procedure in detail, guided by the principle that unequal, preferential treatment is not to be accorded to a particular person, to the prejudice of others; and even where open tendering is not required, any alternative method of procurement must comply with certain rules. The learned judge continued: I am not in agreement with counsel for the Respondents, that the 1st Respondent had used such alternative tendering procedures; the 1st Respondent employed no organ charged with procurement processes, and simply adopted the un-transparent “approach” to the 2nd Respondent, and awarded to 2nd Respondent a lucrative contract which, it is not even clear, was for the public interest represented by 1st Respondent. It was a discriminatory process which, without lawful cause, entirely excluded those such as the members of the petitioner. As against these 69

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members of the petitioner, their fundamental rights and freedoms under Article 27 of the Constitution had been infringed, and their rights to fair administrative action, under Article 47, had been contravened. Although counsel for the Respondents urged that the petitioners should have sought a redress by invoking the administrative processes provided for under the Public Procurement and Disposal Act, such a position is not to be upheld, where constitutional rights have been, as in this case, infringed, and the aggrieved persons have opted for enforcement by Court process.” 90. In Erick Okeyo -v- County Government of Kisumu & 2 Others, Petition No. 1 “A” of 2014; [2014] eKLR the High Court, (Muchelule, J.) in considering the issue of public participation in tendering process expressed himself thus:Lastly, the Constitution and the County Governments Act (No 17 of 2012) provide for citizen participation in elections and formulation, resources appointments; planning mobilization development; project and legislation; development; and use for identification, policy effective sustainable prioritization, planning and implementation; and the alignment of county financial and institutional resources to agreed policy objectives and programmes. Further, the Act requires each County to provide continual and systematic civic education to its residents. This is out of the realization that it is only when citizens are enlightened that they can effectively participate in governance matters affecting them. There was no evidence to show how this solid waste 70

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management project was conceived. There was no evidence that the project was as a result of any policy decision and objective in which the residents of the County were engaged. This project is therefore constitutionally and legally indefensible. I hope I have said enough to show that allowing the Respondents to proceed with this project in this illegal manner would lead to imprudent and irresponsible use of a precious resource without assuring the public that there is value for money. It is for the foregoing reasons that I allow the petition. I declare that: the decision to enter into a public private partnership in relation to solid waste management was a major policy decision that required public participation; the decision as to which private entity would help the 1sRespondent in managing solid waste required public procurement under Article 227 (1) of the Constitution and under sections 2, 3, and 4 of the Public Procurement and Disposal Act; and in so far as the 3 rd Respondent was not so procured, the 1 st and 2nd respondents breached the Constitution and Act and to that extent the award was null and void. 91. as The above emerging jurisprudence establishes, that a general principle, public participation is a requirement in all procurement by a public entity. In the instant case, the tender proceeded by way of open competitive process. There is no evidence that that any tenderer was unfairly prevented or disqualified from bidding nor that principles of procurement under Article 227 were violated in the procurement process itself. 71

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Whether the petitioner is entitled to the orders sought. 92. This Petition thus partly succeeds on singular issue that there was lack of sufficient public participation in the process of formulating the criteria for identification and selection of the Sports Academies and the determination of location at which they would be piloted. Indeed, the 1 st Respondent’s attempt to justify the discretionary criteria that it applied was unconvincing and portrayed a process susceptible to arbitrariness. By defending its decision mainly on the broad basis ‘that it was legally empowered to make policy choices regarding prioritization where to put up the academies and distribution of resources’ 1st The Respondent is simply evading the constitutional imperative of transparency and accountability for public decisions as required under Article 10 (2) (c) of the Constitution. 93. The question thus becomes, what is the implication of the finding that the process did not meet the test of public participation. In my considered view, the finding does not mean the public sport Academies already piloted and established are unconstitutional and invalid. Such a declaration would be absurd and unjust given that these academies are operational and presumably serving the public interest. 72

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94. The appropriate remedial measure available for the Court to make would be to require the Respondents to develop a transparent, objective criteria as a guarantee that the process of future establishment of Sports Academies by the 1st Respondent would be undertaken in strict compliance with the Constitutional principles. 95. Consequently, pursuant to Article Article 23 (3) of the Constitution which empowers this Court to fashion appropriate orders to suit the circumstances of the case whenever necessary, it is ordered as follows: 1) The 1st and 2nd Respondents shall within 3 months of the date of this order, formulate clear, objective and/or and transparent rules/regulations guidelines governing the selection, identification and determination of locations for establishment of Sports Academies. 2) The said guidelines shall be subjected to meaningful public participation before final adoption. 3) In default of compliance with order 1 & 2 above, any member of the public shall be at liberty to Petition this Court for such further orders as may be just and appropriate. 73

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4) This being a public interest litigation, this Court make no orders as to costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 20TH DAY OF AUGUST, 2026. ____________________ L N MUGAMBI JUDGE 74

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