(a), 227(a), and 232 of The Constitution of Kenya v Mijesh Enterprises Limited & 2 others

the banner of Social Public Interest Initiative. The Petitioner filed the instant Petition on his behalf and on behalf of the general public and more specifically the residents of Mathare where he primarily carries out his social and public interest advocacy activities. 2. The 1st Respondent Mijesh Enterprises Limited is a private company duly incorporated in the Republic of Kenya. 3. The 2nd Respondent Nairobi City County is described as a public office established to be in charge of running all activities related to Nairobi County. 4. The 1st Interested Party is The County Secretary Nairobi City County and is involved in the daily running of County affairs including but not limited to all projects being done by the County. 5. The 3rd Interested Party is the lead government agency in the fight against corruption and the promotion of ethical standards, good governance, leadership and integrity in Kenya.. 6. The Petition is dated 5th October 2023 and is premised on the facts on the face of it and further supported by the Petitioner’s affidavit sworn on the even date. The Petitioner seeks the following reliefs: (1). Pending the hearing and determination of this Petition, conservatory Orders be issued in terms of Application filed herewith. Page 2 of 22

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(2). A declaration that the action of the 2 nd Respondent are brazen, illegal, egregious, and in violation the petitioner's and the general public constitutional rights. (3). A declaration that the actions of the respondents have contravened Articles 10, 73, 75, 201 (A), 227(A) and 232 of the Constitution and provisions of the Public Procurement Act. (4). An order of certiorari to remove into this honourable court for the purpose of it being quashed the decision by the 2nd Respondent to award the Tender for Rehabilitation of Huruma Salaba Road in Huruma Ward, Contract Number NCC/WDF/T/160/2022-2023 in favour of the 1st Respondent. (5). An Order of Prohibition do issue prohibiting the 2nd Respondent and the 2nd Interested Party from releasing, paying out, reimbursing any funds to the 1" Respondent with regards to Tender for Rehabilitation of Huruma Salaba Road in Huruma Ward, Contract Number NCC/WDF/T/160/2022-2023. (6). This Honourable Court do issue such Orders and give such Directions as it may deem just and appropriate in the circumstances of this matter. (7). The costs of the Petition be awarded to the Petitioner. 7. Concurrent with the Petition, the Petitioner filed a Notice of Motion Application under Certificate of Urgency seeking inter alia, conservatory Page 3 of 22

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orders restraining Nairobi City County the 2nd Respondent and the CEO of the Huruma Ward Development Fund the 2nd Interested Party from releasing, paying out, or reimbursing any funds to Mijesh Enterprises Limited the 1st Respondent for the Huruma Salaba Road rehabilitation tender, Contract No. NCC/WDF/T/160/2022-2023) pending the hearing and determination of the Application and Petition. 8. In his supporting affidavit sworn on even date with the Petition, the Petitioner deposes details that around August 2023, Nairobi City County and the CEO of the Huruma Ward Development Fund announced Tender No. NCC/WDF/T/160/2022-2023 for the rehabilitation of Huruma Salaba Road to Mijesh Enterprises Limited, an action evidenced by a site board photo marked as exhibit "EO-2". 9. The petitioner depones that the tendering process was severely compromised by corruption, illegal dealings and lack of public advertisement, in direct violation of the Public Procurement and Asset Disposal Act. Further, that the opening and evaluation of bids were kept secret, the announcement date and lowest-evaluated bidder status were withheld and formal requests for information sent to the County Secretary went unanswered. 10. The Petitioner claims that these unaddressed inquiries indicate intentional collusion between the procuring entity and the winning bidder to misappropriate public resources for personal gain. He highlights that the Page 4 of 22

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designated road construction site remains encumbered by permanent multistory and semi-permanent structures, raising serious doubts about how a tender could be awarded prior to site clearance. 11. He attributes these actions to an internal cartel scheme operating across the county government and the funding body to bypass statutory procurement frameworks to the detriment of Huruma Ward residents and ultimately, emphasizes that granting the requested court orders will enforce transparency, protect public interest and resolve substantial legal issues without exposing the respondents to any prejudice. Response to the Petition 12. In response to the Application and the Petition, the 1st Respondent Mijesh Enterprises Limited filed its Grounds of Opposition dated 22nd October 2022 praying for the petition to be dismissed with costs. The 1 st Respondent asserts that the Petition lacks any real basis and is merely intended to stifle and derail the rehabilitation of the Huruma Salaba Road. 13. The 1st Respondent argues that the Petitioner failed to exhaust the administrative mechanisms provided under Sections 35(2), 36–39, 42, and 167(1) of the Public Procurement and Asset Disposal Act, 2015. Specifically, that the Petitioner adduced no evidence of requesting for an investigation from the Authority, nor did he provide any rulings from the Public Procurement Administrative Review Board. Page 5 of 22

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14. Invoking the equity maxim of laches, the 1st Respondent contends that the Petitioner delayed unreasonably and slept on his rights. Further, the 1 st Respondent contends that if any administrative orders existed, the matter should have been brought as a Judicial Review application under Sections 39 and 175 of the Act, making the constitutional petition prematurely filed and being procedurally defective. 15. Substantively, the 1st Respondent denies all allegations of corruption, collusion or fraudulent practices involving the 2nd Respondent, Nairobi City County. It states that it submitted a bid for Kshs. 17,150,368/= following an open advertisement on the County’s official website, emerged as the sole qualified bidder after evaluation and was fairly awarded contract No. NCC/WDF/T/160/2022-2023 in full compliance with procurement laws. 16. The 1st Respondent asserts that the Petitioner failed to prove any breach of Articles 10, 73, 75, 201(A), 227(A), or 232 of the Constitution and thus requests the court to strike out the suit with costs. 17. The 2nd Respondent filed a Notice of Preliminary Objection dated 8th November 2023 contending that the proceedings were filed in complete disregard of Sections 35(2), 36, 37, 38, 39, and 42 of the Public Procurement and Asset Disposal Act, 2015. The states 2nd Respondent states that the matter is premature and defective because the Petitioner failed to exhaust the statutory procedures and legal avenues provided under Page 6 of 22

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the Act before approaching the Court. That consequently, the Court is not the proper forum to ventilate these issues, and that the Court must exercise judicial restraint under Article 165 of the Constitution to allow the relevant constitutional bodies and state agencies to handle the dispute first. 18. Another ground raised is that, because of this failure to follow statutory channels, the 2nd Respondent contends that the entire Petition is misconceived, incompetent, bad in law, incurable, frivolous and an abuse of the court process. 19. Additionally, the 2nd Respondent states that pursuant to Section 42 of the Act, a claim of this nature should have been instituted in the Judicial Review Division rather than the Constitutional and Human Rights Division. The County therefore prays that the petition be struck out with costs to the respondents. 20. The 2nd Respondent also filed a Replying Affidavit sworn on 23rd May 2024 by Eng. Eston Kimathi, opposing the Petition and denying claims of corruption or procedural irregularities in the tender process for the Huruma Salaba Road rehabilitation. 21. The County asserts that the tender was conducted strictly in compliance with the Public Procurement and Asset Disposal Act, complete with an open public advertisement on its website, official bid instructions and formal appointments for the opening and evaluation committees. Page 7 of 22

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22. That following a compliant evaluation process, the tender was lawfully awarded to Mijesh Enterprises Limited for Kshs 17,150,368/= and a notification of intention to enter into a contract was duly issued on 28th April 2023. 23. The County defends its decision not to disclose certain requested information by citing mandatory confidentiality requirements under Section 67 of the Act and states that the Petitioner failed to prove any breach of constitutional rights or statutory violations and that he ought to have pursued established administrative remedies rather than initiating this court action. They depose that the Petition lacks merit and constitutes an abuse of the judicial process. 24. On 24th October 2024, the 3rd Interested Party, the Ethics and AntiCorruption Commission (EACC), filed its Grounds of Opposition in which it asserts that under Article 79 of the Constitution, the AntiCorruption and Economic Crimes Act 2003 and the Ethics and AntiCorruption Commission Act 2011, the Commission is uniquely mandated to investigate corruption, economic crimes and unethical conduct. 25. It states that the Petitioner failed to demonstrate any refusal or improper failure by the Commission to investigate the complaints prior to filing the Petition, effectively using the High Court as a first resort without first exhausting available administrative channels. Page 8 of 22

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26. The EACC contends that the Petitioner presented no factual claims, disputes, acts, or omissions attributable to the Commission that violate constitutional provisions. It is stated that granting court orders to compel an investigation would contravene Article 249(2)(b) of the Constitution and Section 28 of the EACC Act, which guarantee the functional independence of constitutional commissions. 27. Asserting that the Petitioner failed to establish a prima facie case, the EACC submits that the Petition is premature, the requested remedies are untenable and that the petition constitutes an abuse of the court process. 28. The Petition was canvassed by way of written submissions. The Petitioner’s Submissions 29. In the Petitioner’s Submissions filed on 4th February 2025, the Petitioner isolated two issues for determination being: Whether there was transparency and the law was followed in an award for Tender for Rehabilitation of Huruma Salaba Road in Huruma Ward, Contract Number NCC/WDF/T/160/2022-2023 in favour of the 1st Respondent; and Whether this Court has jurisdiction to hear this case. 30. The Petitioner seeks declarations that the 2nd Respondent’s actions were illegal and in violation of public rights and constitutional principles, specifically citing contraventions of Articles 10, 73, 75, 201(A), 227(A), Page 9 of 22

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and 232 of the Constitution, alongside the provisions of the Public Procurement and Asset Disposal Act, 2015. Additionally, the Petitioner prays for an order of certiorari to quash the tender award and an order of prohibition to restrain the 2nd Respondent and 2nd Interested Party from disbursing any funds to the 1st Respondent. 31. On the merits, the Petitioner argues that the entire tender process was shrouded in secrecy, conducted without public participation or due diligence regarding local residents who face potential displacement, and was disclosed only after the filing of this suit. Rejecting the 2 nd Respondent’s reliance on Section 67 of the Public Procurement and Asset Disposal Act, 2015 to justify non-disclosure, the Petitioner contends that statutory confidentiality cannot be used to shield public spending from scrutiny. 32. To support the standard of review for executive action and procedural compliance, the Petitioner cites Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR, which referenced the South African Constitutional Court decision in Democratic Alliance v The President of the Republic of South Africa & 3 Others CCT 122/11 [2012] ZACC 24, emphasizing that courts must examine whether executive bodies complied with constitutional objectives of fairness, integrity and in light of Article 79 of the Constitution. Page 10 of 22

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33. Regarding jurisdiction, the Petitioner maintains that the High Court is properly seized of the petition pursuant to Articles 22, 23, 162(2), 165(3) (b), (d), 165(6), and 258 of the Constitution as the Petition raises fundamental questions regarding constitutional violations, fundamental rights and the improper exercise of public power. 34. Finally, on the issue of costs, the Petitioner asserts that public interest litigation should be exempted from adverse cost orders so as not to deter citizens from defending the Constitution. In support, the Petitioner cites Jasbir Singh Rai and 3 others v Tarlochan Singh Rai and 4 others [2014] eKLR and Kenya Human Rights Commission & another v Attorney General & 6 others [2019] eKLR, affirming that condemning unsuccessful litigants to costs in public interest matters creates a chilling effect on constitutional enforcement. 35. The 1st Respondent’s submissions are dated 21st October 2024 in which the only issue set out for determination is whether the Petition is properly before the Court. The 1st Respondent argues that the Application and Petition questioning the tender award for the rehabilitation of Huruma Salaba Road are prematurely before the Court and should be dismissed with costs. 36. The 1st Respondent’s position is that the dispute primarily concerns procurement procedures under the Public Procurement and Asset Disposal Act, No. 33 of 2015 rather than genuinely raising constitutional Page 11 of 22

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issues. Consequently, it is submitted that the Petitioner was required to exhaust the statutory mechanisms provided under the Act, specifically by raising complaints with the Public Procurement Regulatory Authority under Sections 8, 9 and 35, or by seeking administrative review before the Public Procurement Administrative Review Board (PPARB) pursuant to Section 167, before seeking judicial interventions under Section 175. 37. To support the assertion that the Court lacks jurisdiction due to the failure to exhaust internal dispute resolution channels, the 1st Respondent invokes the doctrine of avoidance and cites Council of County Governors v Attorney General & 12 Others [2018] eKLR, submitting that the court in the cited case emphasized that a tribunal or court will decline to decide a constitutional issue when a case can properly be resolved through an alternative statutory mechanism. Counsel further cites the Supreme Court’s decision in Communication Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others [2014] eKLR, as well as S v Mhlungu [1995] (3) SA 867 (CC) and Ashwander v Tennessee Valley Authority 297 U.S. 288 (1936) in support of this proposition. 38. The 1st Respondent also references Black’s Law Dictionary, 10th Edition to illustrate how the exhaustion of remedies doctrine maintains comity between courts and administrative bodies. Counsel for the 1 st Respondent maintains that premature resort to judicial fora undermines mandatory statutory processes. Page 12 of 22

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39. Counsel relies on the case of Ezekiel Otieno v Funds Account Manager, Mathare National Constituency Development Fund & 2 others & Public Procurement Review Board & 12 others (Interested Parties) [2022] eKLR, where the court reiterated principles established by the Court of Appeal in Speaker of the National Assembly v Karume [1992] eKLR and Geoffrey Muthinja Kabiru & 2 others v Samuel Munga Henry & 1756 others [2015] eKLR, which dictate that courts must remain fora of last resort rather than the first port of call when a statutory dispute resolution process exists. 40. Further, citing Mark Ndungu Ndumia v Law Society of Kenya & 20 Others [2019] eKLR (Consolidated with Kimani Waweru & Another v Law Society of Kenya & 7 Others), the 1st Respondent submits that the Petitioner failed to demonstrate "ripeness" or seek an exemption from exhaustion under Section 9(4) of the Fair Administrative Actions Act, 2015. 41. Ultimately, the 1st Respondent submits that because the Petitioner slept on his rights and failed to engage the appropriate administrative bodies, the principle of laches applies and the Court must find itself without jurisdiction. 42. It is their submission that this fundamental lack of jurisdiction is anchored in the landmark decisions of Owners of the Motor Vessel "Lilian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1 and Speaker of the Senate and Page 13 of 22

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another v Attorney General and others (Advisory Opinion Reference No. 2 of 2013), which position is reinforced by the Supreme Court’s ruling in Benson Ambuti Adega and 2 others v Kibos Distillers Limited and 5 others [2020] eKLR, where the apex court established that superior courts act incorrectly when assuming jurisdiction over matters that are intertwined with issues specifically committed by statute to specialized administrative tribunals. 43. The 3rd Interested Party, the Ethics and Anti-Corruption Commission (EACC), filed its submissions dated 18th May 2026 isolating one issue for determination being: whether the Petitioner is entitled to the orders sought in the Petition. Counsel submits that the Petitioner’s claim is premature and constitutes an abuse of the court process. That under Article 252(1)(a) of the Constitution, the Commission is empowered to initiate investigations on its own or upon receiving a complaint and that this authority is supplemented by Section 11(1)(d) and (e) of the Ethics and Anti-Corruption Commission Act, which mandates the Commission to investigate acts of corruption, bribery, economic crimes, or breaches of ethical codes and to recommend appropriate administrative or prosecutorial action to the Director of Public Prosecutions. 44. Further, that Section 25 of the Anti-Corruption and Economic Crimes Act requires the Commission to provide written reasons should it decline to investigate a complaint concerning corrupt conduct. It is submitted that, Page 14 of 22

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because the Petitioner failed to report the allegations to the Commission or demonstrate that the Commission unreasonably refused to investigate them, the Petitioner improperly bypassed the designated statutory framework. 45. To support the requirement for exhausting statutory remedies before seeking judicial intervention, the 3rd Interested Party relies on Patrick Michuki v Independent Electoral and Boundaries Commission (IEBC), Ethics and Anti-Corruption Commission, Moses Kuria, Joachim Kiarie Kamere & Attorney General [2016] eKLR, where the court affirmed that parties must exhaust constitutional and legislative dispute resolution mechanisms before approaching the courts, as judicial bodies lack the specialized resources and investigative capacity of independent institutions. 46. It is also submitted that this principle builds upon established jurisprudence in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR and Kenya Youth Parliament & 2 others v Attorney General & 2 Others [2012] eKLR. Similarly, in Francis Gurukia v Peter Gatirau Munya & 2 others [2017] eKLR, where the court emphasized that allegations of corruption or financial impropriety against public officers must first be reported to and investigated by the EACC, which then determines whether to recommend prosecution, closure of the file or surcharging. Page 15 of 22

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47. Finally, the 3rd Interested Party contends that the Petition fails to state a justiciable controversy or articulate specific constitutional violations committed by the Commission. Lacking precision and factual substance regarding any infringed constitutional rights, the suit fails to meet the requisite legal threshold established in Anarita Karimi Njeru v. Republic [1979] eKLR. Consequently, the 3rd Interested Party prays that the Petition be dismissed with costs. Analysis and Determination 48. Having considered the petition and the responses thereto, together with the submissions, the following issues emerge for my determination: (i) Whether this Court has jurisdiction to entertain the Petition in light of the doctrine of exhaustion of administrative remedies and the doctrine of avoidance. (ii) Whether the Petitioner is entitled to the reliefs sought. (iii)Who should bear the costs of the petition i. Whether this Court has jurisdiction to entertain the Petition in light of the doctrine of exhaustion of administrative remedies and the doctrine of avoidance. 49. Jurisdiction is the cornerstone of judicial authority. Without it, a court is stripped of the power to take even a single further step. This principle was famously articulated by Nyarangi JA in Owners of the Motor Vessel Page 16 of 22

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“Lilian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, where he held that Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings… and has since been emphatically affirmed by the Supreme Court in Speaker of the Senate & Another v Attorney General & Others, Advisory Opinion Reference No. 2 of 2013. 50. The main defense raised by the Respondents and the Interested Parties is that this Petition is prematurely lodged because the Petitioner bypassed established statutory frameworks. I note that the primary grievance raised by the Petitioner centers on alleged procurement irregularities in the award of Tender No. NCC/WDF/T/160/2022-2023 for the rehabilitation of Huruma Salaba Road. 51. The Public Procurement and Asset Disposal Act, No. 33 of 2015, establishes a comprehensive mechanism for resolving procurement-related complaints. Under Sections 8, 9 and 35 of the Act, the Public Procurement Regulatory Authority (PPRA) is empowered to investigate complaints regarding procurement proceedings from any person. Further, Section 167(1) of the Act establishes the Public Procurement Administrative Review Board (PPARB) to hear administrative review applications from candidates or tenderers aggrieved by a procuring entity’s decisions. Section 175 of the Act explicitly clarifies that this Court’s Page 17 of 22

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jurisdiction in procurement matters is supervisory and invoked only via judicial review after administrative remedies have been exhausted. 52. In Geoffrey Muthinja Kabiru & 2 others v. Samuel Munga Henry & 1756 others [2015] eKLR, the Court of Appeal reaffirmed the necessity of respecting statutory mechanisms, observing that: “It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked. Courts ought to be a fora of last resort and not the first port of call the moment a storm brews..." 53. This doctrine was reiterated in Ezekiel Otieno v. Funds Account Manager, Mathare National Constituency Development Fund & 2 others & Public Procurement Review Board & 12 others (Interested Parties) [2022] eKLR, which reaffirmed that parties cannot bypass specialized administrative tribunals established by Parliament. 54. Additionally, Section 9(2) and (4) of the Fair Administrative Actions Act, 2015, restricts courts from reviewing administrative actions unless statutory remedies are exhausted, or an explicit application for exemption from exhaustion has been granted by the court. (see also William Odhiambo Ramogi & 3 others v Attorney General & 4 others: Muslims for Human Rights & 2 others (Interested parties) [2020] eKLR). Page 18 of 22

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55. In the present case, the Petitioner neither pursued administrative remedies through the PPRA or PPARB, nor did he seek an exemption under the Fair Administrative Action Act, 2015, as highlighted in Mark Ndungu Ndumia v. Law Society of Kenya & 20 Others [2019] eKLR (Consolidated with Kimani Waweru & Another v. Law Society of Kenya & 7 Others). He instead opted to move this Court on a constitutional claim alleging violation of constitutional provisions and the public procurement laws. Under the doctrine of exhaustion, this cannot stand. 56. I have also considered the allegations of corruption levelled against the 2 nd Respondent by the Petitioner. Article 79 of the Constitution and the Ethics and Anti-Corruption Commission Act, 2011, confer the mandate of investigating public corruption on the 3rd Interested Party. As highlighted in Francis Gurukia v. Peter Gatirau Munya & 2 others [2017] eKLR and Patrick Michuki v. Independent Electoral and Boundaries Commission (IEBC) & 4 others [2016] eKLR, allegations of financial impropriety against public officers must first be lodged with and investigated by the EACC before invoking the court’s constitutional jurisdiction. Bypassing the EACC without demonstrating its failure or refusal to act undermines independent statutory bodies and directly conflicts with Article 249(2)(b) of the Constitution. Page 19 of 22

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57. In addition, the doctrine of avoidance precludes the Court from invoking the Constitution to settle controversies that can conveniently be dealt with on any other legal basis other than the Constitution. Disputes that may appropriately be resolved on the basis of a statute or regulatory regime or other established legal principles should thus not be disguised and tried as Constitutional litigations. See Communication Commission of Kenya & 5 Others v. Royal Media Services Ltd & 5 Others [2014] eKLR, where the Court stated that courts will not determine a constitutional issue when a dispute can properly be resolved on a statutory basis. Further, the Supreme Court in Benson Ambuti Adega and 2 others v. Kibos Distillers Limited and 5 others [2020] eKLR, held that superior courts act incorrectly when assuming jurisdiction over matters that are intertwined with issues specifically committed by Parliament to specialized administrative bodies. The Court in that case held thus: “It would therefore seem that the Superior Court, determined, quite incorrectly, that it had the power or jurisdiction to hear and determine the Petition, which although raised issues that were clearly within its purview, were also intertwined with other issues which were rather obviously not within its jurisdiction, and which could have been effectively determined by another legislatively established tribunal, in this instance two bodies, the National Page 20 of 22

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Environmental Tribunal and the National Environmental Complaints Committee.” (see also Council of County Governors v. Attorney General & 12 Others [2018] eKLR) 58. The Petitioner’s attempt to cloak a procurement dispute in the garb of a constitutional petition does not change its essential character. The dispute remains firmly within the statutory framework provided by procurement law and the constitutional label cannot confer jurisdiction where none exists. Accordingly, I find that this Court lacks jurisdiction for want of exhaustion of remedies and for offending the doctrine of constitutional avoidance and the petition therefore fails. 59. In the circumstances, the Petition is premature, improperly before this Court and amounts to an abuse of the constitutional litigation process. The second issue for determination is therefore moot. 60. Although the Petition is procedurally defective for failing to exhaust administrative channels, io order that each party shall bear its own costs as the petition is brought in the public interest. 61. This file is closed. 62. Orders accordingly. Dated, Signed & Delivered virtually at Mombasa this 25th Day of August, 2026 Page 21 of 22

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R.E. ABURILI JUDGE Page 22 of 22

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