Martha Karambu Koome, Jamila Mohammed, Stephen Gatembu Kairu
Okiya Omtatah Okoiti, Wyclife Gisebe Nyakina & Law Society of Kenya v Attorney General, Kenya Railways Corporation, Public Procurement Oversight Authority, China Road and Bridge Corporation, Okiya Omtatah Okoiti & Nyakina Wycliffe Gisebe
Okiya Omtatah Okoiti & 2 others v Attorney General & 4 others  eKLR
Principles of public procurement and Admissibility of illegally obtained Evidence
Okiya Omtatah Okoiti & 2 others v Attorney General & 4 others  eKLR
Civil Appeal No 13 & 10 of 2015
Court of Appeal at Nairobi
MK Koome, SG Kairu and J Mohammed, JJA
June 19, 2020
Reported by Beryl Ikamari & George Kariuki
Evidence Law – admissibility of evidence – admissibility of relevant yet illegally obtained evidence in criminal and civil matters - procedures to be followed while accessing public documents – whether information evidencing a flawed public procurement process, despite being illegally obtained, was admissible - Constitution of Kenya 2010, articles 31, 35, 50(2) and 50(4); Evidence Act (cap 80), sections 79 and 80; Civil Procedure Rules, 2010, order 19, rule 3.
Civil Practice and Procedure - institution of suits - mootness - claim that a suit had been overtaken by events - where a petition was filed to stop the construction of a railway line whose construction was complete - whether the suit was moot or academic.
Procurement Law - principles of procurement law - choice of a procurement method - exemption from the provisions of statute and the Constitution on procurement, including competitiveness - claim that a procurement process was based on an international government to government agreement which was an exempt process under section 6 of the repealed Public Procurement and Disposal Act (repealed) - Constitution of Kenya 2010, articles 227(1)(c) and 227(1)(d); Public Procurement & Disposal Act (Repealed), No 3 of 2005; sections 6(1) and 29.
The consolidated appeals arose from a decision wherein the High court ruled that despite a substantial segment of the Standard Gauge Railway (SGR) being completed and operational, the procurement process for its construction continued to generate public interest due to huge expenditure.
At trial, the construction was yet to commence and the petitioner-appellants sought conservatory orders against the supply and installation of facilities, locomotives and rolling stock for the railway arguing that the procurement process was in contravention of both statute and the Constitution. They further argued that despite the railway being important and necessary, its procurement and implementation was devoid of the values laid down under article 227 of the Constitution. In particular, the single outsourcing of the China Road and Bridge Construction Company (CRBC) was unconstitutional, irregular, illegal, invalid, null and void. Additionally, the petitioners argued that the award for supply and installation of diesel-powered engines that were outdated and that would pollute the environment violated the Constitution.
In their defense, the respondents argued that proper feasibility studies had been conducted from as early as 2009 and 2012 by the CRBC at its own cost and the Government of Kenya was duly advised. Consequently, a Railway Development Fund was formed and a budgetary allocation set aside for phase 1 of the SGR from Mombasa to Naivasha. The plans were approved on June 26, 2012 by Kenya Railways Corporation (KRC) and teams appointed by CRBC and KRC to negotiate terms of the procurement and installation of the SGR. Additionally, the Ministry of Transport entered into agreement with CRBC for the supply of facilities, locomotives and rolling stocks for the railway. They further argued that the SGR Procurement process was exempt from article 227’s interpretation as an exempted procurement contract since it was a government to government contract which qualified it to be a negotiated international agreement as was contemplated by section 6(1) of the Public Procurement and Disposal Act (repealed).
The Attorney General and the PPOA on their part opposed the petition on grounds that the evidence relied upon by the petitioners had been illegally obtained, that a feasibility study had been conducted and approved and that neither statutory provisions nor the Constitution had been violated.
In his ruling, the High Court rejected the appellants’ invitation to the court to stop the construction of the Standard Gauge Railway alleging that its procurement and construction violated the Constitution of Kenya and other laws. Additionally, the trial court found that the documents tendered by the petitioners had been obtained illegally as a result of which the court ordered that they be expunged from the court’s records. Further, the court found that there were neither breaches of statute or of the Constitution in the procurement process and that Parliament had duly conducted its oversight role and given financial approval for the project. Lastly, the court also found that the project was exempt from competitive bidding as it was a government to government project under section 6 of the Public Procurement and Disposal Act (repealed).
Aggrieved by that decision, the petitioners/appellants lodged two separate appeals, Civil Appeals 10 and 13 of 2015 which were consolidated by an order of the Court of Appeal on November 8, 2016. The appeal was opposed by the respondents on the grounds that it was an academic/ moot exercise since the Railway line from Mombasa to Naivasha was complete and already operational and the trial court had correctly ruled on the issues raised at trial.
Whether the appeal was moot or academic as it sought to stop the construction of a railway line that had already been constructed on grounds that the procurement process undertaken for its construction was flawed.
Whether illegally obtained evidence was admissible in court and whether relying on that evidence would be detrimental to the administration of justice.
When would a procurement process not require competitive bidding as a procurement process that fell within the terms of section 6(1) of the Public Procurement & Disposal Act (repealed) and entailed a loan or grant under an international agreement?
The reliefs sought to stop the construction of the SGR had been overtaken by events and were unavailable considering that the railway line from Mombasa to Naivasha was complete and operational. A moot case was a matter in which a controversy no longer existed; a case that presented only an abstract question that did not arise from existing facts or rights, and as a verb, it meant to render a question as of no practical significance. A matter was moot if further legal proceedings relating to it had no effect, or events placed it beyond the reach of the law. Thereby the matter had been deprived of practical significance or rendered purely academic. Mootness arose when there was no longer an actual controversy between the parties to a court case, and any ruling by the court would have no actual, practical impact.
The contract had already been executed by dint of construction and operationalization of the SGR line from Mombasa to Naivasha. Injunctions to restrain the implementation of the impugned contract or to quash the award of the contract were no longer within reach.
The issue of illegally obtained evidence brought to the fore the tension between the need for the court to be able to consider and have access to evidence which would enable it to fairly and effectively determine a dispute on the one hand and the need to avoid irregularity or impropriety in the way in which evidence was obtained or secured.
The sources of the petitioners’ documents were not disclosed in of the petitioners’ affidavits and neither were they aware that those documents consisted of certified public documents. It was upon the filing of the cross petition seeking orders for those documents to be expunged that the appellants disclosed that the documents were supplied by conscientious citizens and whistleblowers. That was in contravention of articles 31 and 35 of the Constitution on right to privacy and right of access to information, respectively.
In considering the issue of the admissibility of the illegally obtained evidence, the principles of a fair hearing as contemplated under article 50 of the Constitution and the rules of adducing illegally obtained evidence under sections 79 and 80 of the Evidence Act, were relevant.
Section 80 of the Evidence Act guaranteed the authenticity and integrity of documents relied upon in the court. Where the documents in question did not meet the criteria of admissibility set in section 35 of the Evidence Act, allowing the documents in question to remain on record would be detrimental to the administration of justice. Regardless of whether the respondents had made a complaint to law enforcement agencies regarding theft of documents, the appellants could not rely on information obtained in unclear circumstances and while a citizen was entitled to information held by the State, there was no need or room to use irregular methods in obtaining information.
It would be detrimental to the administration of justice and against the principle underlying article 50(4) of the Constitution to, in effect, countenance illicit actions by admission of irregularly obtained documents. However well-intentioned conscientious citizens or whistleblowers were in checking public officers, there could be no justification, for not following proper procedures in the procurement of evidence. Therefore, there was no basis for interfering with the decision of the High Court to expunge the documents in question.
Under article 227 of the Constitution when a State organ or any other public entity contracted for goods or services, it had to do so in accordance with a system that was fair, equitable, transparent, competitive and cost-effective. Article 227 of the Constitution should be interpreted in a manner that promoted its purposes, values and principles as article 259 of the Constitution demanded and also holistically. Article 227(1) of the Constitution ought to be read together with 227(2) of the Constitution which stated that an Act of Parliament would prescribe a framework within which policies relating to procurement and asset disposal would be implemented. The legislation that gave effect to that provision was the Public Procurement and Asset Disposal Act. Under that legislation’s transitional provisions, procurement proceedings commenced before the commencement date of the Act had to be continued in accordance with the law applicable before the commencement date of the Act. Therefore, the statute applicable to the proceedings was the repealed Public Procurement and Disposal Act.
Although statute recognized alternative methods of procurement, the default procurement method was open tendering. Section 29(1) of the Public Procurement and Disposal Act (repealed) provided that for each procurement, the procuring entity had to use open tendering. Other procurement procedures recognized under the repealed Act that were subject to prescribed safeguards included restricted tendering, direct procurement, request for proposals, request for quotations, and procedure for low value procurements, among others. As regarded restricted tendering or direct tendering, the safeguards under section 29 (3) of the repealed Act included obtaining the written approval of the procuring entity’s tendering committee and recording in writing the reasons for using the alternative procurement procedure.
Sections 6 and 7 of the Public Procurement and Disposal Act (repealed), contained provisions with respect to conflict between requirements under the Act with any obligations of the country arising from treaties or agreements. Parliament recognized that there could be instances when conditions imposed in instances of negotiated grants or loans or by donor funds could conflict with the provisions of the Public Procurement and Disposal Act (repealed). In that case, such conditions would prevail thereby removing procurement from the purview of the Public Procurement and Disposal Act (repealed).
The engagement of CRBC was not an obligation arising from a negotiated grant or loan agreement for purposes of section 6 of the Public Procurement and Disposal Act (repealed). That was because as indicated, the contract with CRBC as the contractor was procured long before the financing agreement was entered into.
Under the circumstances section 6(1) of the Public Procurement and Disposal Act (repealed), did not exempt the procurement from the provisions of the statute. Kenya Railways Corporation, as the procuring entity, was therefore under an obligation to comply with the requirements of the Public Procurement and Disposal Act (repealed) in the procurement of the SGR project.
The decision of the trial court ordering to be expunged from the record documents that had been presented by the appellants as evidence in support of the petitions was upheld.
Part of the judgment of the High Court that the procurement of the SGR was exempt from the provisions of the Public Procurement and Disposal Act, 2005 by reason of Section 6(1) thereof was set aside. It was substituted with an order declaring that Kenya Railways Corporation, as the procuring entity, failed to comply with, and violated provisions of article 227 (1) of the Constitution and sections 6 (1) and 29, of the Public Procurement and Disposal Act, 2005 in the procurement of the SGR project. The appeals succeeded to that extent only.
Each party had to bear its own costs of the appeal, as the suit was a matter of public interest.