REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

 CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

(Coram: A. C. Mrima, J.)

CONSTITUTIONAL PETITION NO. E392 OF 2021

-BETWEEN-

GEONET TECHNOLOGIES LIMITED..............................PETITIONER

-VERSUS-

1. THE MINISTRY OF ICT, INNOVATION AND                                                

YOUTH AFFAIRS, STATE DEPARTMENT OF ICT & INNOVATION .

2. THE HONOURABLE ATTORNEY GENERAL                                               

3. HUAWEI TECHNOLOGIES (KENYA)                                                            

COMPANY LIMITED.......................................................RESPONDENTS

-AND-

M/S COM TWENTY- ONE LIMITED..................INTERESTED PARTY

JUDGMENT

The Background:

1. The Ministry of ICT, Innovation and Youth Affairs, State Department of ICT & Innovation, (hereinafter referred to as “the Ministry” or “the 1^st Respondent”) advertised Tender No: MOICT/SDICT/248/2020-2021 for Provision of Operation and Maintenance of National Optic Fibre Backbone Infrastructure Phase II (NOFBI II) for among other areas, the Western Region of Kenya (hereinafter referred to as “The Tender").

2. The Petitioner herein, Geonet Technologies Limited, an information, communication and technology Company, expressed interest and bid for the tender. For clarity the tender was in respect of the Western region of Kenya.

3. The Ministry subsequently considered the submitted bids and eventually awarded the tender to M/s Com Twenty-One Limited, the Interested Party herein.

4. The Petitioner was aggrieved by the Ministry’s decision. It sought the intervention of Public Procurement Administrative Review Board (hereinafter referred to as ‘The Board’) by lodging a request for review. The Petitioner claimed that it ought to have been awarded the tender on the basis that its bid of Kshs. 199,400,000/- was lower than that of M/s Com Twenty-One Limited. The Interested Party’s bid was for Kshs. 203,280,000/-.

5. In its decision of 26^th April, 2021, the Board allowed the request. It then ordered the Ministry to re-evaluate all responsive bids at the technical stage.

6. The Ministry obliged. Upon re-evaluation, it returned the verdict that the Petitioner was still unsuccessful. The tender was again awarded to the Interested Party.

7. The Petitioner, still aggrieved, lodged a second request to the Board. The Board, once again, allowed the request. In allowing the request, the Board observed that the Ministry applied a new criterion that was not in the tender documents to and as a result unfairly disqualified the Petitioner's bid. The Board ordered among other things that the Ministry reinstates the Petitioner's bid at the Technical Evaluation Stage and conduct a re-evaluation.

8. The Ministry again obliged. It conducted the re-evaluation as ordered. On 11^th June, 2021, the Ministry informed the Petitioner that upon re-evaluation, it still was unsuccessful and that the tender was awarded to the Interested Party.

9. Unrelenting, the Petitioner further filed the third request for review challenging the Ministry’s decision. The Board allowed the application and ordered inter alia that the Ministry directs its Evaluation Committee to reinstate the Petitioner's bid with other tenderers to the Financial Evaluation Stage and to conduct a re-evaluation.

10. Again, the Ministry obliged. Upon conducting the re-evaluation at the Financial Stage, the Ministry, through a letter dated 10^th August, 2021, notified the Petitioner that it still was unsuccessful.

11. The reason for the failure of the Petitioner’s bid was stated to be that the Petitioner was not positively affirmed by the Original Equipment Manufacturer and it is on that basis the tender was again awarded to the Interested Party.

12. Disgruntled by the turn of events, the Petitioner wrote to the Ministry seeking to be supplied with the reasons that informed the position that it 'was not positively affirmed' by the Original Equipment Manufacturer.

13. Through a letter dated 16^th August, 2021, the Ministry responded and declined any such disclosure on the grounds that the reasons were considered confidential information.

14. Aggrieved by the Ministry’s decision, the Petitioner, for the fourth time, requested the Board to review the said decision and to make the order that the Petitioner, having presented the lowest evaluated bid of Kshs. 199,400,000.00, be awarded the tender.

15. The Board, before making its decision, requested the Ministry to supply it with the reasons for disqualifying the Petitioner.

16. Upon receipt of the information, The Board learnt that the Ministry had conducted a post-qualification evaluation by requesting for information from Huawei Technologies (Kenya) Co. Limited, (hereinafter referred to as ‘Huawei” or ‘the 3^rd Respondent’). The Ministry had then used the information from Huawei to reject the Petitioner’s bid on the basis that Huawei had made a negative reference on the Petitioner.

17. According to a letter dated 29^th July, 2021 Huawei had, under a confidential cover, informed the Ministry that it subcontracted the Petitioner from January 2015 to March 2021 and that though the Petitioner finished its part of the service, it obtained a low score for some Outside Plant Maintenance services.

18. On the basis of the foregoing information, the Board ordered the Ministry to re-issue Letters of Notification of the outcome of the evaluation.

19. On 17^th November, 2021 the Ministry re-issued the Petitioner with a Letter of Notification. The Ministry indicated that the Petitioner was not positively affirmed by the Original Equipment Manufacturer which was Huawei.

20. In paragraph a(iii) of the letter, the Ministry specifically pointed out that: -

Specifically, on the past performance from Huawei Kenya Ltd. (Huawei) who you had provided as a reference for past performance), Huawei provided a confidential report in which they confirmed the following;

a. That you finished your part of the services according to the terms and conditions of the subcontract and the services Level Agreement in which you got a low score for outside plant maintenance services.

21. The Petitioner was aggrieved by the decision of the Board. It then instituted the current proceedings claiming that it was not accorded the opportunity to present its case in respect of the negative reference from Huawei. According to the Petitioner, that was in violation of the rules of natural justice as enshrined in the Constitution and the Fair Administrative Actions Act.

The Petition:

22. Through the Petition dated 27^th September, 2021 and supported by the Affidavit of Joel Kimutai, the Director and Chief Operating Officer sworn to on even date, the Petitioner sought this Court’s intervention.

23. Contemporaneously with the filing of the Petition was the Petitioner’s application by way of a Notice of Motion (hereinafter referred to as ‘the application’). The application was evenly dated and it was supported by the Affidavit of Joel Kimutai deposed to the very date.

24. The main Petition and the application share the foregoing common factual background.

25. The application sought the following orders: -

1. Spent

2. THAT pending the hearing and determination of this Notice of Motion Application, the Honourable Court be and is hereby pleased to issue a temporary conservatory order restraining the 1^st Respondent by themselves, their agents, employees and/or servants from entering into a contract with MIS Com Twenty One Limited and/or taking any other steps with respect to Tender No. MOICT/SDICT/248/2020-2021 of Provision of Operation and Maintenance of National Optic Fibre Backbone Infrastructure Phase II (NOFBI II) Active and Passive Equipment for Lot 2: Western Region.

3. THAT pending the hearing and determination of the main Petition, the Honourable Court be and is hereby pleased to issue a temporary conservatory order restraining the 1^st Respondent by themselves, their agents, employees and/or servants from entering into a contract with MIS Com Twenty One Limited and/or taking any other steps with respect to Tender No. MOICT/SDICT/248/2020-2021 of Provision of Operation and Maintenance of National Optic Fibre Backbone Infrastructure Phase II (NO FBI II) Active and Passive Equipment for Lot 2: Western Region.

4. THAT costs of this Application be provided for.

26. On 29^th September, 2021 this Court granted prayer 2 of the application and ordered the joinder of the Interested Party herein. It also directed that the application be subsumed into the main Petition.

27. In the main, the Petitioner averred that the confidential reference from Huawei contained misrepresentation of facts. The Petitioner then formally wrote to Huawei and urged it to outline the true factual position with respect to its quarterly performance evaluations and to issue a fresh reference to the Ministry communicating the correct position regarding the Petitioner’s performance.

28. It was the Petitioner’s case that during its contract with Huawei, the evaluations conducted on quarterly basis yielded favourable grades resulting to an average score of 84.78% for the entire contract term such that the adverse report by Huawei was misleading and not factual.

29. The Petitioner further claimed that that during the subsistence of its contract with Huawei, it was not notified of any performance complaints and/or grievances relating to its effectiveness either in writing or verbally. It asserted that it performed its part of the contract satisfactorily and the contract termination correspondence attest to that fact.

30. It further contended that Huawei had even issued a Manufacturer's Authorization and Manufacturer's Service Commitment letter in favour of the Petitioner, which documents it duly submitted to the Ministry in support of the its bid in the disputed tender.

31. The Petitioner pleaded that it did not receive any communication from Huawei on its demand.

32. On the foregoing, the Petitioner averred that it was disqualified from the tender on the basis of the malicious confidential reference from Huawei thus unfairly deprived of a business opportunity.

33. The Petitioner averred that the letter by Huawei was arrived at without secretly and in a non-transparent manner. As a result, the Petitioner’s rights were variously infringed. Those rights include the right not to be condemned unheard, the right to a fair administrative action under Article 47 of the Constitution, the right to access information under Article 35, right to equal protection of the law under Article 27 and the right to be given written reasons under the Fair Administrative Actions Act No. 4 of 2015.

34. The Petitioner then asserted this Court’s jurisdiction on Articles 10, 20, 21(1), 22(1), 23, 73, 165, 227(1), 259 and 260 of the Constitution and in the end, prayed for the following Orders: -

i. Judicial Review Order by way of an order of CERTIORARI pursuant to Article 23 (3) (f) to remove to this Court for purposes of quashing the 3^rd Respondent's confidential reference letter dated 29 July 2021 to the 1^st Respondent on the matter of Tender No. MOICT/SDICT/248/2020-2021 for Provision of Operation and Maintenance of National Optic Fibre Backbone Infrastructure Phase II (NOFBI II) Active and Passive Equipment for Lot 2: Western Region.

ii. A Judicial Review Order by way of an Order of CERTIORARI pursuant to Article 23(3) (f) to remove to this Court for purposes of quashing the 1^st Respondent's letter of notification of regret addressed to the Petitioner and dated 17 September 2021 together with any other notifications from the 1^st Respondent to other tenderers with respect to Tender No. MOICT/SDICT/248/2020-2021 for Provision of Operation and Maintenance of National Optic Fibre Backbone Infrastructure Phase II (NOFBI II) Active and Passive Equipment for Lot 2: Western Region.

iii. An Order of MANDAMUS compelling the l" Respondent to make a tender award in favour of the Petitioner in the subject Tender No. MOICT/SDICT/248/2020-2021 for Provision of Operation and Maintenance of National Optic Fibre Backbone Infrastructure Phase II (NOFBI II) Active and Passive Equipment for Lot 2: Western Region being the bidder with the lowest responsive cost.

iv. A declaration that the 1^st and 3^rd Respondents violated and contravened the Petitioners fundamental rights as particularized in the Petition herein and particularly the right to fair administrative action and protection of reputation.

v. An award of damages and compensation for violation and contravention of the aforestated Petitioner's rights including its reputation.

vi. An Order awarding costs of the Petition to the Petitioner.

vii. Any other or further orders, writs and directions this Honourable Court considers appropriate and just to grant for the purpose of the enforcement of fundamental rights and freedoms of the Petitioner.

The Petitioner’s submissions:

35. The Petitioner filed written submissions and supplementary submissions dated 29^th October, 2021 and 1^st December, 2021 respectively.

36. Seeking to bolster propriety of the Petition and this Court’s jurisdiction, The Petitioner submitted that it first became aware of the impugned unconstitutional actions of the 1^st and 3^rd Respondents at a time when the Board had become functus officio; when it delivered its decision on 13^th September, 2021 in respect of which Huawei, the 3^rd Respondent, was not a party to.

37. It submitted the Petition is not an appeal to challenge the Board’s decision but to review the unconstitutional infractions of the 1^st and 3^rd Respondents.

38. It was its case that it approached this Court in the knowledge that Huawei was neither a tenderer nor a candidate within the meaning of the Procurement Act and, therefore, could not be a proper party to any further proceedings before the Board.

39. In asserting propriety of the Petition and this Court’s jurisdiction, reliance was placed on Ernst & Young LLP vs Capital Markets Authority & Another (2017) e KLR where the Learned Judge held:

... judicial review is no longer a common law prerogative directed purely at public bodies to enforce the will of Parliament, but is now a constitutional principle to safeguard the constitution's principles, values and purposes ...

40. In rebutting the claim that the Petition was res-judicata in respect to prayers b and c for having been adjudicated in at the Board, the Petitioner submitted that the Ministry’s letter which is the subject of the prayer b was issued after the last decision of the Board and has not been subject to any litigation or adjudication before any judicial forum prior to the filing of this Petition.

41. Separately, the Petitioner rebutted Huawei’s contention that the Petition did not fall within the exceptions of exhaustion doctrine by relying on the Supreme Court in Communications Commission of Kenya & 5 Others vs Royal Media Services Ltd & 5 Others (2014) eKLR, the High Court in Anthony Miano & Others Vs Attorney General & Others (2021) eKLR and the 5-Judge Bench in Mombasa High Court Constitutional Petition No.159 of 2018 consolidated with Constitutional Petition No. 201 of 2019.

42. It urged Court to assert jurisdiction and relied on the foregoing authorities on exceptions to the exhaustion doctrine. It was submitted that there is no other forum where their grievance can be exhausted before the jurisdiction of this Court is invoked.

43. It was the Petitioner’s case that since Huawei was not a party to the proceedings before the Board, the Court has the obligation to consider the suitability of the appeal mechanism available in the context of this case.

44. On whether the Court should quash Huawei’s confidential letter, the Petitioner referred to the Ministry’s Letter of Notification and submitted that the letter did not state the identity of the 'Original Equipment Manufacturer' as well as the information forming basis of the conclusion that the Petitioner 'was not positively affirmed'.

45. The Petitioner submitted that the said information was particularly important as it had more than one Manufacturer Authorization in its tender document and none was stated to be 'original equipment manufacturer.

46. The Petitioner submitted that this Court had the capacity to issue prerogative writs contrary to the 3^rd Respondent’s position. To that end, reliance was placed on Ernst & Young LLP vs Capital Markets Authority & Another (2017) e KLR where it was observed;

As can be seen, the entrenchment of the power of judicial review, as a constitutional principle should of necessity expand the scope of the remedy. Parties, who were once denied_judicial_review on_the_basis of the public-private power dichotomy, should now access judicial review if the person, body or authority against whom it is claimed exercised quasi-judicial function or a function_that_is likely to affect his rights.

47. In reference to Articles 47 and 260 of the Constitution, Sections 2, 3 and 4 of the Fair Administrative Actions Act, the Petitioner urged the Court to return the verdict that the actions of the 3^rd Respondent affected its legal rights and interests.

48. To buttress the importance of Article 47 and the Fair Administrative Actions Act, support was sourced from Republic vs National Land Commission 2 Others Ex-parte Archdiocese of Nairobi Kenya Registered Trustees (St. Joseph Mukasa Catholic Church Kahawa West) (2018) eKLR where it was remarked;

… If the principles of natural justice are violated in respect of any decision, it is, indeed immaterial whether the same decision would have been arrived at in the absence of the departure from essential principles of justice. The decision must be declared as no decision.

49. Further reliance was placed on the Supreme Court of Uganda in The Management of Committee of Makondo Primary School and Another -vs- Uganda National Examination Board, HC Civil Misc. Application No.18 of 2010, where the Court stated as follows regarding the rules of natural justice:

… It is a cardinal rule of natural justice that no one should be condemned unheard. Natural justice is not a creature of humankind. It was ordained by the divine hand of the Lord God hence the rules enjoy superiority over all laws made by humankind and that any law that contravenes or offends against any of the rules of natural justice, is null and void and of no effect. The rule as captured in the Latin Phrase 'audi alteram partem' literally translates into 'hear the parties in turn', and has been appropriately paraphrased as 'do not condemn anyone unheard'. This means a person against whom there is a complaint must be given a just and fair hearing.

50. On the foregoing, the Petitioner submitted that the Ministry, having received the confidential reference letter with the adverse information it had the obligation by law to conduct itself in accordance with the dictates of Article 47 of Constitution and Fair Administrative Action Act as well as in accordance with natural justice.

51. It was its case that Section 83 of the Procurement Act that allow procuring entities to conduct post-qualification due diligence was not meant to provide an opportunity for such entities and referees to unfairly and unlawfully disenfranchise a tenderer without a remedy in law.

52. In submitting that it was justified in getting the order of mandamus, it stated in all the three instances of filing the Request for review before the Board, the Ministry, a public body made the award in favour of the Interested Party without exercising the option of conducting post qualification due diligence, however, when it became imminent that the Ministry did not have any lawful reasons to refuse making an award in favour of the Petitioner, it conveniently sought a confidential reference letter from Huawei.

53. To that end, support was found in Republic v County Secretary - Nairobi City County & another Ex Parte Tom Ojienda & Associates [2019] eKLR where the following was said of the orders of Mandamus: -

… "Mandamus is an equitable remedy that serves to compel a public authority to perform its public legal duty and it is a remedy that controls procedural delays ....

54. In the end, the Petitioners urged the Court to make the finding that its right to fair administrative action and access to information was violated. The decision in Republic -vs- National Land Commission & 2 Others Ex parte Archdiocese of Nairobi Kenya Registered Trustees (St. Joseph Mukasa Catholic Church Kahawa West) (2018) eKLR was referred to where it was observed thus: -

… decision-making body should not see relevant material without giving those affected a chance to comment on it and, if they wish, to controvert it, is fundamental to the principle of law (which governs public administration as much as it does adjudication) that to act in good faith and listen fairly to both sides is 'a duty lying upon everyone who decides anything.

55. In its supplementary submissions, the Petitioner rebutted the Huawei’s argument that the instant dispute was a civil claim by stating that albeit having a tortuous outlook, the violations were matters in the Bill of Rights under Article 33 of the Constitution and made reference to Phineas Nyagah -vs- Gitobu Imanyara (2013) eKLR where it was observed as follows: -

… the law of defamation is not just anchored on a statutory enactment but has been given a constitutional underpinning as well... The Court is therefore under a duty to balance the public interest with respect to information concerning the manner in which affairs are being administered with the right to protect the dignity and reputation of individuals.

56. Jurisdiction of this Court was reiterated based on provisions of Article 22(3) of the Constitution on the enforcement of bill of rights as read together with, Rule 10 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013 that violation of rights as claimed herein can only be presented for determination before the Honourable Court by way of a Petition.

The 1^st and 2^nd Respondents’ cases:

57. The 1^st and 2^nd Respondents opposed the Petition and the application through the Replying Affidavit of one Pius Muchai Kaua, the Assistant Director of ICT in the Ministry and a Member of the Technical Evaluation Committee, deposed to on 15^th November, 2021.

58. The Respondents averred that upon being directed by the Board to refer the tender back to evaluation stage, it did so and subjected the Petitioner to due diligence pursuant to Section 83 of the Public Procurement and Asset Disposal Act, 2015 (hereinafter referred to as ‘the Procurement Act’) and Clause 2.27 of the Instructions to Tenderers of the tender document.

59. Mr. Kaua further deposed that 1^st Respondent was required to conduct a full and complete evaluation of the terms of tenders and the law. He stated that it would have been unlawful for the 1^st Respondent to pass a decision awarding a tender to a bidder in circumstances where there was no full and complete evaluation of its bid.

60. He deposed that it was a requirement that bidders would submit lists of similar projects they had undertaken and that a post qualification evaluation was to be undertaken.

61. He further stated that in its due diligence, the Ministry sought confidential report from Huawei regarding the work the Petitioner had done for it and the report was averse.

62. He deposed that Section 83 of Public Procurement and Asset Disposal Regulations, precluded the Petitioner from being awarded the tender and that being the case, the next lowest bidder was then subjected to post qualification examination.

63. It was his case that the Petitioner’s assertion that it ought to have been given an opportunity to be heard with respect to due diligence is not contemplated under the Procurement Act and the alleged loss of business by the Petitioner was not as a result of any unfair or unlawful conduct on the part of the Ministry.

64. In the end, it was prayed that the Petition and the application be dismissed with costs.

The 1^st and 2^nd Respondents’ submissions:

65. It their written submissions dated 14^th December, 2021 the 1^st and 2^nd Respondents reiterated the deposition of Mr. Kaua.

66. It was submitted that pursuant to Section 83 of the Procurement Act, the 1^st Respondent was required to conduct a full and complete evaluation of the terms of tenders and the law.

67. To buttress the foregoing, reliance was placed on Municipal Council of Mombasa v Republic & Another [2002] eKLR where the Court of Appeal expressed itself as follows: -

… The Court would only be concerned with the process leading to the making of the decision. How was the decision arrived at? Did those who made the decision have the power, i.e. the jurisdiction to make it? Were the persons affected by the decision heard before it was made? In making the decision, did the decision maker take into account relevant matters or did he take into account irrelevant matters? These are the kind of questions a court hearing a matter by way of judicial review is concerned with, and such court is not entitled to act as a court of appeal over the decider; acting as an appeal court over the decider would involve going into the merits of the decision itself-such as whether there was sufficient evidence to support the decision –and that, as we have, is not the province of judicial review”.

68. It was its case that the Petitioner did not deserve disclosure of the confidential information since it was covered under privilege.

69. They further submitted that the dispute herein had been the subject of litigation before the Board, a specialized tribunal and as such this Court should not interfere. Reliance was placed on the Court of Appeal decision in Kenya Pipeline Company Ltd v Hyosung Ebara Company Limited & 2 Others [2012] eKLR where jurisdiction and powers of the Board were discussed as follows: -

…The Review Board is a specialized statutory tribunal established to deal with all complaints of breach of duty by the procuring entity. It has power to engage an expert to assist in the proceedings in which it feels it lacks the necessary experience. The Act confers very wide powers on the Review Board. It is clear from the nature of powers given to the Review Board including annulling anything done by the procurement entity and substituting its decision for that of the procuring entity that the administrative review envisaged by the Act is indeed an appeal. From its nature the Review Board is obviously better equipped that the High Court to handle disputes relating to breach of duty by the procurement entity. It follows that its decision in matters within its jurisdiction should not be lightly interfered with. Having regard to the wide powers of the Review Board we are satisfied that the High Court erred in holding that the Review Board was not competent to decide whether or not the 1^st Respondent’s tender had met the mandatory conditions. The issue whether or not the 1^st Respondent’s tender was rightly rejected as unresponsive was directly before the Review Board and the Board had jurisdiction to deal with it.

70. The Respondents then urged that the Petition and application be dismissed with costs.

The 3^rd Respondent’s case:

71. The 3^rd Respondent opposed the Petition and the application. It filed Grounds of Opposition dated 13^th October, 2021. It also filed the Replying Affidavit of one Michael Maina, Senior Legal Counsel, deposed to on 13^th October, 2021.

72. In the Grounds of Opposition, it was stated that the Petitioner did not demonstrate the violation of any constitutional rights, how the violations were committed and how they infringe on the Constitution. It was its case that since the Petitioner was claiming loss of reputation, the same could not be elevated to a constitutional issue.

73. It maintained that the information it disclosed to the Petitioner was confidential, true and accurate.

74. In seeking to oust this Court’s jurisdiction, it was stated that the Petitioner did not demonstrate how its assertions against the 3^rd Respondent fell within the exceptions of the Avoidance Principle and the Doctrine of Exhaustion of Remedies.

75. It was its case that the Petitioner did not show absence of legal or regulatory framework that could deal with the assertions against it.

76. In a bid to demonstrate no fault on its part, the 3^rd Respondent stated that it is a private entity and was not exercising a judicial or quasi-judicial function when responding to the request by the Ministry. It further stated that it was not undertaking any administrative function in submitting the letter of reference and as such its actions are not amenable to the prerogative writs of judicial review.

77. It stated that the Petitioner did not request for information from it and as such, there is no basis for the allegation that it withheld crucial information from the Petitioner.

78. It maintained the position that the letter it issued to the Ministry was issued at its request and was not meant to be published. It was it case that the publication by the Ministry cannot constitute publication by Huawei.

79. In the Replying Affidavit, Michael Maina gave a historical account of the engagements it had with the Petitioner and deposed that from time to time, it evaluated and rated the Petitioner's performance.

80. To that end, and in a bid to dissociate itself with malice towards the Petitioner, he deposed that it issued the Petitioner with a Manufacturer's Authorisation and Manufacturer's Service Commitment Letter for purposes of the Tender.

81. He deposed further that by a letter dated 19th July, 2021, the Ministry requested for confidential information touching on the Petitioner’s performance for the contract period, the scope of work the Petitioner was engaged, whether the Petitioner was offering the Respondent services for both active and passive equipment, whether it was supporting the 3^rd Respondent’s network and any other relevant information.

82. He deposed that, the 3^rd Respondent gave accurate and factual information regarding the Petitioner and as such, the allegation by the Petitioner that the confidential letter issued by it was made with the sole intention of depriving the Petitioner of a business opportunity is untrue and without basis.

83. In rebutting the Petitioner’s contention that Huawei had positively appraised it in the past, he deposed that such was only for the period 2017 to 2021 and do not reflect the Petitioner's performance for the entire period it sub-contracted the Petitioner.

The Submissions:

84. Huawei submitted that the instant Petition was not a constitutional dispute. It urged the Court to invoke the Constitutional Avoidance Doctrine and to that end relied on Anthony Miano & others -vs- Attorney General & others (2021) eKLR where the Court made reference to the Supreme Court decision in Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others Pet. 14A, 14B & 14C of 2014 of [2014] eKLR where the Court spoke to the doctrine as follows;

... The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis.

85. In urging this Court to make a finding that the dispute was civil in nature it submitted that since the Petitioner was aggrieved by the Respondent's actions and that its reputation was adversely affected causing the Petitioner to lose a business opportunity, the Petitioner ought to have instituted a civil claim against the 3^rd Respondent as opposed to a constitutional Petition.

86. To buttress the foregoing, reliance was placed on Sylvana Mpabwanayo Ntaryamira v Allen Waiyaki Gichuhi & Another [2016] eKLR and in Roma Ventures Trading Company Limited & 17 others v County Government of Nandi & 2 others [2019] eKLR.

87. The 3^rd Respondent further submitted that the confidential information supplied to the 1^st Respondent was qualified privilege and the Petitioner could not claim that its reputation was damaged. Reliance was placed on the Court of Appeal decision in Ndung'u, Njoroge & Kwach Advocates & another v Standard Limited & Others (2018) eKLR where the Court rendered itself as follows: -

… It is in the public interest that the rules of our law relating to privileged occasions and privileged communications were introduced, because it is in the public interest that persons should be allowed to speak freely on occasions when it is their duty to speak, and to tell all they know or believe, or on occasions when it is necessary to speak in the protection of common interest.

88. In the end, it was submitted that the Petitioner was underserving of the reliefs prayed for as well as damages for compensation since there was no loss suffered. It was urged that the Petition be dismissed with costs.

 The Interested Party’s case and submissions:

89. The Interested Party opposed the Petition and the application through the Affidavit of Evans Mwaura, the interested Party’s Executive Director, deposed to on 21^st October, 2021.

90. It was his case that the Petition was without merit and ought to be dismissed for being a misguided attempt to litigate a dispute that belongs in the Board.

91. As such, he deposed that the Petition is res-judicata since prayers (b) and (c) had been substantively adjudicated and a decision rendered by the Board which has not been set aside or challenged by the Petitioner.

92. He deposed that under Section 83 of the Procurement Act, the Ministry received information from Huawei for purpose of making a final determination and award.

93. On the foregoing, he deposed that Petition cannot stand in view of the unchallenged decision of the Board which the Petitioner did not challenge or seek to vacate.

94. He further deposed that the Petitioner could not ask this Court to direct the Ministry to issue a tender award in its favour when it accepted and failed to challenge the award of the Board.

95. He deposed that fair administrative action was upheld as evidenced by multiple and unfettered access to the Board and multiple re-evaluations. He stated that the Ministry’s reliance on the letter and its confidentiality does not constitute an unfair administrative action.

96. In conclusion, he deposed that the Court cannot overlook the unchallenged decision of the Board.

97. In its written submissions dated 15^th November, 2021 the interested isolated the issues for determination as being;

i. Whether the contents of the confidential letter by the 3^rd Respondent to the 1^st Respondent as complained by the Petitioner are directly attributable to the 1^st Respondent.

ii. Whether the actions by the 1^st Respondent violated the Petitioners constitutional rights to a fair administrative action and protection of reputation warranting a review by this honourable court.

98. On the first issue, it was submitted that to the extent that decision of the Board stands unchallenged, the Petition amounts to seeking of a review and/or appeal of the orders of the Board.

99. It was its case that Petition is improper and an attempt to review the process undertaken by the Board, which decision was consistent with the procedures and rules laid down in the tender document and under Section 83 of the Procurement Act.

100. In sum, the Interested Party submitted that that the Petitioner at all times was accorded ample opportunity to ventilate all its grievances at the Board and that Petition is an attempt to arm twist the Ministry into making a decision that favours it despite the fact that the Ministry did not act in excess of its jurisdiction nor unfairly in its determination as upheld by the Board in its decision.

101. On the issue as to whether the Ministry violated the Petitioner’s constitutional rights to fair administrative action, it was submitted that there is no constitutionally guaranteed right that was violated by the 1^st and 3^rd Respondents in respect of the confidential reference letter.

102. The 3^rd Respondent urged this Court to dismiss the Petition with costs.

Issues for Determination:

103. From the foregoing recount of the respective parties’ cases, the submissions and the decisions referred to, the following issues arise for determination: -

(i) Whether this Court has jurisdiction to deal with the dispute in light of the doctrine of res-judicata.

(ii) Whether this Court has jurisdiction to deal with the dispute in light of the exhaustion doctrine.

(iii) Whether the petition meets the precision threshold requirement.

(iv) Whether the petitioners rights under Article 47 of the Constitution was violated.

(v) What remedies ought to issue, if any.

104. I will deal with the issues in seriatim.

Analysis and Determination:

i. Whether this Court has jurisdiction to deal with the dispute in light of the doctrine of res-judicata:

105. Any challenge on the jurisdiction of a Court must be addressed as a matter of priority. Such is the settled legal position. Jurisdiction goes to the root of a dispute and any dispute resolution purportedly done without jurisdiction is a nullity ab-initio.

106. The various facets of the doctrine of jurisdiction have been the subject of many decisions. Jurisdiction of a Court or tribunal can be impugned on many fronts including the successful raising of the doctrine of res judicata.

107. Recently, in Nairobi High Court Constitutional Petition No. E008 of 2022, Okiya Omtatah Okoiti v Attorney General & another [2022] eKLR, this Court briefly discussed the operational dimensions of the doctrine of jurisdiction. This Court rendered itself thus: -

22. The Court of Appeal in Nakuru Civil Appeal No. 119 of 2017 Public Service Commission & 2 Others vs. Eric Cheruiyot & 16 Others consolidated with Civil Appeal No. 139 of 2017 County Government of Embu & Another vs. Eric Cheruiyot & 15 Others (unreported) in a decision rendered on 8^th February, 2022 spoke to the doctrine of jurisdiction in general as follows: -

36. Jurisdiction is everything, it is what gives a court or a tribunal the power, authority and legitimacy to entertain a matter before it. John Beecroft Saunders in “Words and Phrases Legally Defined”, Volume 3 at Page 113 defines court jurisdiction as follows: 

By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of the matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to kind and nature of the actions and matters of which the particular court has cognizance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.

37. The locus classicus on jurisdiction is the celebrated case of Owners of the Motor Vessel “Lillian S’ v. Caltex Oil (Kenya) Ltd [1989] KLR 1. Nyarangi, JA. relying, inter alia, on the above cited treatise by John Beecroft Saunders held as follows: 

…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 pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.

38. A decision made by a court of law without proper jurisdiction amounts to a nullity ab initio, and such a decision is amenable to setting aside ex debito justitiae. 

39. The Supreme Court in In the Matter of Interim Independent Electoral Commission [2011] eKLR, Constitutional Application No. 2 of 2011 held that jurisdiction of courts in Kenya is regulated by the Constitution, statute, and principles laid out in judicial precedent. The Supreme Court at paragraph 30 of its decision held in part as follows:

…a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of Legislation is clear and there is no ambiguity. 

40. In Samuel Kamau Macharia and Another v. Kenya Commercial Bank Limited & 2 others [2012] eKLR, Application No. 2 of 2011, the Supreme Court reiterated its holding on a court’s jurisdiction. In the matter of the Interim Independent Electoral Commission (supra) at paragraph 68 of its ruling, the Supreme Court held as follows:

(68). A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate itself jurisdiction exceeding that which is conferred upon it by law.

108. The Interested Party herein, Huawei, impugned the jurisdiction of this Court on the basis of the doctrine of res-judicata.

109. The nuances of the bar of res-judicata and its applicability in constitutional Petitions was discussed in details by this this Court in the Okiya Omtatah Okoiti v Attorney General & another case (supra).

110. This Court stated as follows: -

28. The doctrine of res judicata is not novel. Its genesis is in Section 7 of the Civil Procedure Act, Cap. 21 of the Laws of Kenya which provides that: -

No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such court.

33. On whether the doctrine of res judicata applies to constitutional Petitions, the Supreme Court endeavoured an extensive discussion and comparative analysis in various jurisdictions. It also captured the various opposing schools of thought on the issue.

34. In the end, the Court found that the doctrine, rightly so, applies to constitutional Petitions. This is what the Court partly stated: -

[81]. We reaffirm our position as in the Muiri Coffee case that the doctrine of res judicata is based on the principle of finality which is a matter of public policy. The principle of finality is one of the pillars upon which our judicial system is founded and the doctrine of res judicata prevents a multiplicity of suits, which would ordinarily clog the Courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively………

[82]. If we were to find that the doctrine does not apply to constitutional litigation, the doctrine may very well lose much of its legitimacy and validity. We say this in light of the fact that constitutional tenets permeate all litigation starting with the application of Article 159 of the Constitution in both civil and criminal litigation, and its application now embedded in all procedural statutes. Further Article 50 on right to fair hearing and Article 48 on access to justice are fundamental rights which every litigant is entitled to. Such a holding may very well lead to parties, that whenever they need to circumscribe the doctrine of res judicata, they only need to invoke some constitutional provision or other.

35. The Apex Court went ahead and rendered itself on the threshold for proving the applicability of the doctrine. The Court stated as follows: -

[86]. We restate the elements that must be proven before a court may arrive at the conclusion that a matter is res judicata. For res judicata to be invoked in a civil matter the following elements must be demonstrated:

a) There is a former Judgment or order which was final;

b) The Judgment or order was on merit;

c) The Judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and

d) There must be between the first and the second action identical parties, subject matter and cause of action

36. On the commonality of the parties, the Court noted as follows: -

[93]. The commonality is that the Appellants herein and the Applicants in Jr 130 of 2011 were persons, juridical and natural, engaged in the business of clearing and forwarding of goods for various importers of goods destined to the Democratic Republic of Congo. They have the same interests and therefore the raise the complaints regarding the two certificates, FERI & COD. The answer is in the affirmative and we find we cannot fault the High Court or the Court of Appeal for concluding as such.

37. In dealing with the contention as to whether the issues raised in the two suits therein were directly and substantially the same, the Supreme Court noted that the initial suit was instituted by way of a judicial review application whereas the subsequent suit was by way of a constitutional Petition. The Court also noted that the issues raised in the constitutional Petition were more than those decided in the judicial review application.

38. The Supreme Court disagreed with the Court of Appeal and found that the doctrine was not applicable in the matter. The Court held that: -

[97]. From the face of it, it would appear that the issues in the present suit and JR 130 of 2011 are directly and substantially the same. However, the Appellants herein predicated their petition on inter alia grounds that the bilateral agreement should have been approved by Parliament in order to form party of Kenyan law and in failing to do so, the Respondents contravened Article 2. They further alleged that the Respondents herein purported to usurp to the role of Parliament and in doing so contravened Articles 94(5) and (6) of the Constitution. They further alleged that the FERI and COD certificates threatened to infringe their right to property under Articles 40(1)(a) and (2)(a) when the Respondents threatened to arbitrarily deprive them of their property. The Court sitting in determination of a judicial review application did not have jurisdiction to render itself on these issues. We therefore find that the principle of res judicata was wrongly invoked on this ground. (emphasis added).

39. On the competency of the Court deciding the matters in issue, the Supreme Court noted the close relationship between the issue as to whether the current suit had been decided by a competent court and whether the matter in dispute in the former suit between the parties was directly or substantially in dispute between the parties in the suit where the doctrine is pleaded as a bar.

40. The Apex Court had a lengthy discussion on the matter. It made reference to several decisions and in the end rendered itself as follows: -

[107]. The Court when determining a constitutional petition is empowered to look beyond the process and not only examine but delve into the merits of a matter or a decision. The essence of merit review is the power to substitute a decision which the Court can do when determining a constitutional petition. Further the Court is further empowered to grant not just judicial review orders but any other relief is deems fit to remedy any denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. This Court in its decision in Mitu-Bell Welfare Society v. Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (Amicus Curiae) [2021] eKLR went ahead to reaffirm use of structural interdicts and supervisory orders to redress the violation of a fundamental right in order to allow the development of Court-sanctioned enforcement of human rights as envisaged in the Bill of Rights.

[108] We arrive at the inescapable conclusion that the High Court in determining a judicial review application, exercises only a fraction the jurisdiction it has to determine a constitutional petition. It therefore follows that a determination of a judicial review application cannot be termed as final determination of issues under a constitutional petition. The considerations are different, the orders the court may grant are more expanded under a constitutional petition and therefore the outcomes are different.

[109] The Court in hearing a constitutional petition may very well arrive at the same conclusion as the Court hearing a judicial review application. However, the considerations right from the outset are different, the procedures are different, the reliefs that the court may grant are different, the Court will be playing fairly different roles.

[110] We consequently arrive at the conclusion that the Court of Appeal erred in holding that the doctrine of res judicata applied to the current case. The Court of Appeal should have at that point found that the High Court was wrong in its conclusion.

41. The Supreme Court also discussed two exceptions to the doctrine of res judicata. The Court stated as follows: -

[84] Just as the Court of Appeal in its impugned decision noted that rights keep on evolving, mutating, and assuming multifaceted dimensions it may be difficult to specify what is rarest and clearest. We however propose to set some parameters that a party seeking to have a court give an exemption to the application of the doctrine of res judicata. The first is where there is potential for substantial injustice if a court does not hear a constitutional matter or issue on its merits. It is our considered opinion that before a court can arrive at such a conclusion, it must examine the entirety of the circumstances as well address the factors for and against exercise of such discretionary power.

[85] In the alternative a litigant must demonstrate special circumstances warranting the Court to make an exception.

42. The Supreme Court had earlier expressed itself on the doctrine of res judicata in Petition 14, 14A, 14B & 14C of 2014 (Consolidated) Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] eKLR where it delimited the operation of the doctrine of res-judicata in the following terms;

[317] The concept of res judicata operates to prevent causes of action, or issues from being relitigated once they have been determined on the merits. It encompasses limits upon both issues and claims, and the issues that may be raised in subsequent proceedings. In this case, the High Court relied on “issue estoppel”, to bar the 1^st, 2^nd and 3^rd respondents’ claims. Issue estoppel prevents a party who previously litigated a claim (and lost), from taking a second bite at the cherry. This is a long-standing common law doctrine for bringing finality to the process of litigation; for avoiding multiplicities of proceedings; and for the protection of the integrity of the administration of justice? all in the cause of fairness in the settlement of disputes.

[318] This concept is incorporated in Section 7 of the Civil Procedure Act (Cap. 21, Laws of Kenya) which prohibits a Court from trying any issue which has been substantially in issue in an earlier suit. It thus provides:

No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such court.

[319] There are conditions to the application of the doctrine of res judicata: (i) the issue in the first suit must have been decided by a competent Court; (ii) the matter in dispute in the former suit between the parties must be directly or substantially in dispute between the parties in the suit where the doctrine is pleaded as a bar; and (iii) the parties in the former suit should be the same parties, or parties under whom they or any of them claim, litigating under the same title Karia and Another v. The Attorney General and Others, [2005] 1 EA 83, 89.

[320] So, in the instant case, the argument concerning res judicata can only succeed when it is established that the issue brought before a Court is essentially the same as another one already satisfactorily decided, before a competent court.

[333] We find that the petition at the High Court had sought to relitigate an issue already determined by the Public Procurement Administrative Review Tribunal. Instead of contesting the Tribunal’s decision through the prescribed route of judicial review at the High Court, the 1^st, 2^nd and 3^rd respondents instituted fresh proceedings, two years later, to challenge a decision on facts and issues finally determined. This strategy, we would observe, constitutes the very mischief that the common law doctrine of “issue estoppel” is meant to forestall. Issue estoppel “prevents a party from using an institutional detour to attack the validity of an order by seeking a different result from a different forum, rather than through the designated appellate or judicial review route” (Workers’ Compensation Board v. Figliola [2011] 3 S.C.R. 422, 438 (paragraph 28)).

[334] Whatever mode the 1^st, 2^nd and 3^rd respondents adopted in couching their prayers, it is plain to us, they were challenging the decision of the Tribunal, in the High Court. It is a typical case that puts the Courts on guard, against litigants attempting to sidestep the doctrine of “issue estoppel”, by appending new causes of action to their grievance, while pursuing the very same case they lost previously. In Omondi v. National Bank of Kenya Ltd. & Others, [2001] EA 177 the Court held that “parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit.”

[352] The Judicial Committee of the Privy Council, in Thomas v. The Attorney-General of Trinidad and Tobago, [1991] LRC (Const.) 1001 held that “when a plaintiff seeks to litigate the same issue a second time relying on fresh propositions in law he can only do so if he can demonstrate that special circumstances exist for displacing the normal rules.” That court relied on a case decided by the Supreme Court of India, Daryao & Others v. The State of UP & Others, (1961) 1 SCR 574 to find that the existence of a constitutional remedy does not affect the application of the principle of res judicata. The Indian Court also rejected the notion that res judicata could not apply to petitions seeking redress with respect to an infringement of fundamental rights. Gajendragadkar J stated:

But is the rule of res judicata merely a technical rule or is it based on high public policy? If the rule of res judicata itself embodies a principle of public policy which in turn is an essential part of the rule of law, then the objection that the rule cannot be invoked where fundamental rights are in question may lose much of its validity. Now the rule of res judicata…has no doubt some technical aspects…but the basis on which the said rule rests is founded on considerations of public policy. It is in the interest of the public at large that a finality should attach to the binding decisions pronounced by Courts of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation. If these two principles form the foundation of the general rule of res judicata they cannot be treated as irrelevant or inadmissible even in dealing with fundamental rights in petitions filed under Article 32.

[353] Kenya’s High Court recently pronounced itself on the issue of the applicability of res judicata in constitutional claims. In Okiya Omtatah Okoiti & Another v. Attorney General & 6 Others, High Court Const. and Human Rights Division, Petition No. 593 of 2013 [2014] eKLR, Lenaola J. (at paragraph 64) thus stated:

Whereas these principles have generally been applied liberally in civil suits, the same cannot be said of their application in constitutional matters. I say so because, in my view, the principle of res judicata can and should only be invoked in constitutional matters in the clearest of cases and where a party is relitigating the same matter before the Constitutional Court and where the Court is called upon to redetermine an issue between the same parties and on the same subject matter. While therefore the principle is a principle of law of wide application, therefore it must be sparingly invoked in rights-based litigation and the reason is obvious.

[354] On the basis of such principles evolved in case law, it is plain to us that the 1^st, 2^nd and 3^rd respondents were relitigating the denial to them of a BSD licence, and were asking the High Court to redetermine this issue.

[355]. However, notwithstanding our findings based on the common law principles of estoppel and res- judicata, we remain keenly aware that the Constitution of 2010 has elevated the process of judicial review to a pedestal that transcends the technicalities of common law. By clothing their grievance as a constitutional question, the 1^st, 2^nd and 3^rd respondents were seeking the intervention of the High Court in the firm belief that, their fundamental right had been violated by a state organ. Indeed, this is what must have informed the Court of Appeal’s view to the effect that the appellants (respondents herein) were entitled to approach the Court and have their grievance resolved on the basis of Articles 22 and 23 of the Constitution.

43. The Court of Appeal in John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others [2015] eKLR (which decision was overturned by the Supreme Court) also, and so correctly, discussed the doctrine of res judicata at length. The Court stated in part as follows: -

The rationale behind res judicata is based on the public interest that there should be an end to litigation coupled with the interest to protect a party from facing repetitive litigation over the same matter. Res judicata ensures the economic use of court’s limited resources and timely termination of cases. Courts are already clogged and overwhelmed. They can hardly spare time to repeat themselves on issues already decided upon. It promotes stability of judgments by reducing the possibility of inconsistency in judgments of concurrent courts. It promotes confidence in the courts and predictability which is one of the essential ingredients in maintaining respect for justice and the rule of law. Without res judicata, the very essence of the rule of law would be in danger of unravelling uncontrollably. In a nutshell, res judicata being a fundamental principle of law may be raised as a valid defence. It is a doctrine of general application and it matters not whether the proceedings in which it is raised are constitutional in nature. The general consensus therefore remains that res judicata being a fundamental principle of law that relates to the jurisdiction of the court, may be raised as a valid defence to a constitutional claim even on the basis of the court's inherent power to prevent abuse of process under Rule 3(8) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. On the whole, it is recognized that its scope may permeate broad aspects of civil law and practice. We accordingly do not accept the proposition that Constitution-based litigation cannot be subjected to the doctrine of res judicata. However, we must hasten to add that it should only be invoked in constitutional litigation in the clearest of the cases. It must be sparingly invoked and the reasons are obvious as rights keep on evolving, mutating, and assuming multifaceted dimensions.

We also resist the invitation by the appellants to hold that all constitutional petitions must be heard and disposed of on merit and that parties should not be barred from the citadel of justice on the basis of technicalities and rules of procedure which have no place in the new constitutional dispensation. The doctrine is not a technicality. It goes to the root of the jurisdiction of the court to entertain a dispute. If it is successfully ventilated, the doctrine will deny the court entertaining the dispute jurisdiction to take any further steps in the matter with the consequence that the suit will be struck out for being res judicata. That will close the chapter on the dispute. If the doctrine has such end result, how can it be said that it is a mere technicality" If a constitutional petition is bad in law from the onset, nothing stops the court from dealing with it peremptorily and having it immediately disposed of. There is no legal requirement that such litigation must be heard and determined on merit.

From our expose of the doctrine above, we are now able to formally answer the issues isolated for determination in this appeal earlier as follows: -

i) The doctrine of res judicata is applicable to constitutional litigation just as in other civil litigation as it is a doctrine of general application with a rider, however, that it should be invoked in constitutional litigation in rarest and in the clearest of cases.

ii) There is no legal requirement or factual basis for the submission that the doctrine must only be invoked and or ventilated through a formal application. It can be raised through pleadings as well as by way of preliminary objection.

iii) The ingredients of res judicata must be given a wider interpretation; the issue in dispute in the two cases must be the same or substantially the same as in the previous case, parties to the two suits should be the same or parties under whom they or any of them is claiming or litigating under the same title and lastly, the earlier claim must have been determined by a competent court.

111. Having set out the parameters within which the doctrine of res-judicata operates, it is on record that Huawei’s argument in support of the doctrine is that the instant Petition is an attempt to relitigate a dispute that belongs in the Board and which had been decided conclusively.

112. Conversely, the Petitioner maintained that this Court was vested with jurisdiction. It is its case that the last decision of the Board which yielded to the current proceedings has not been the subject of any litigation or adjudication before any judicial forum.

113. I have carefully considered all the disputes which were litigated before the Board.

114. As to the commonality of parties, I do note that not all the parties herein were the parties before the Board. For clarity the only parties before the Board were the Petitioner, the Ministry and the Interested Party herein. Neither the Attorney General nor Huawei were involved in the dispute. To that extent, the first requirement is not satisfactorily met.

115. On the second principle requiring commonality of issues raised, it is evident that whereas the issue before the Board was predominantly award of the tender, the distinction arises on the nature of the violations and reliefs sought in the Petition. The Petitioner did not seek the prayers in the instant Petition before the Board. As a matter of cause, the violations alleged and the reliefs sought in the instant Petition are diametrically opposed to the ones before the Board.

116. It follows, therefore, that since the alleged constitutional violations and the reliefs sought were not addressed by the Board, then the same could not have been conclusively determined.

117. To that end, this Court finds that the issues in the instant Petition are substantially distinct from those before the Board and as such the doctrine of res-judicata does not apply in the circumstances of this case.

118. The argument, hence, fails and is for rejection.

ii. Whether this Court has jurisdiction to deal with the dispute in light of the exhaustion doctrine:

119. A party pleading non-exhaustion of available remedies essentially challenges justiciability of a dispute. The objective of the exhaustion doctrine is to postpone judicial intervention in disputes where alternative remedies are available hence its jurisdictional identity.

120. In Nairobi High Court Constitutional Petition E261 of 2021 Larry Odira Seko -vs- Senate, Pan Africa Christian University & 2 others & 2 others [2022] eKLR, this Court traced the constitutional underpinning of the exhaustion doctrine, analysed its operation and its exceptions in reference to various authorities and in the following manner: -

30. The doctrine of exhaustion in Kenya traces its origin from Article 159(2)(c) of the Constitution which recognizes and entrenches the use of alternative mechanisms of dispute resolution in the following terms: -

159(2) In exercising judicial authority, the Courts and tribunals shall be guided by the following principles-

(a)…

(b)…

(c) alternative forms of dispute resolution including resolution, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause 3.

32. The doctrine of exhaustion was comprehensively dealt with by a 5-Judge Bench in Mombasa High Court Constitutional Petition No. 159 of 2018 consolidated with Constitutional Petition No. 201 of 2019 William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) (2020) eKLR. The Court stated as follows:

52. The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. This encourages alternative dispute resolution mechanisms in line with Article 159 of the Constitution and was aptly elucidated by the High Court in R vs. Independent Electoral and Boundaries Commission (I.E.B.C) Ex Parte National Super Alliance (NASA) Kenya and 6 others [2017] eKLR, where the Court opined thus:

42. This doctrine is now of esteemed juridical lineage in Kenya. It was perhaps most felicitously stated by the Court of Appeal in Speaker of National Assembly v Karume [1992] KLR 21 in the following oft-repeated words:

Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures.

43. While this case was decided before the Constitution of Kenya 2010 was promulgated, many cases in the Post-2010 era have found the reasoning sound and provided justification and rationale for the doctrine under the 2010 Constitution. We can do no better in this regard than cite another Court of Appeal decision which provides the Constitutional rationale and basis for the doctrine.

This is Geoffrey Muthiga Kabiru & 2 others – vs- Samuel Munga Henry & 1756 others [2015] eKLR, where the Court of Appeal stated 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 fora of last resort and not the first port of call the moment a storm brews…The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. The Ex Parte Applicants argue that this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.

33. The Court also dealt with the exceptions to the doctrine of exhaustion. It expressed itself as follows: -

59. However, our case law has developed a number of exceptions to the doctrine of exhaustion. In R. Vs Independent Electoral and Boundaries Commission (I.E.B.C.) & Others ex parte The National Super Alliance Kenya (NASA) (supra), after exhaustively reviewing Kenya's decisional law on the exhaustion doctrine, the High Court described the first exception thus:

What emerges from our jurisprudence in these cases are at least two principles: while, exceptions to the exhaustion requirement are not clearly delineated, Courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved – including level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies. As the Court of Appeal acknowledged in the Shikara Limited Case (supra), the High Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it. This exception to the exhaustion requirement is particularly likely where a party pleads issues that verge on Constitutional interpretation especially in virgin areas or where an important constitutional value is at stake. See also Moffat Kamau and 9 Others vs Aelous (K) Ltd and 9 Others.)

60. As observed above, the first principle is that the High Court may, in exceptional circumstances consider, and determine that the exhaustion requirement would not serve the values enshrined in the Constitution or law and allow the suit to proceed before it. It is also essential for the Court to consider the suitability of the appeal mechanism available in the context of the particular case and determine whether it is suitable to determine the issues raised. 

61. The second principle is that the jurisdiction of the Courts to consider valid grievances from parties who lack adequate audience before a forum created by a statute, or who may not have the quality of audience before the forum which is proportionate to the interests the party wishes to advance in a suit must not be ousted. The rationale behind this precept is that statutory provisions ousting Court’s jurisdiction must be construed restrictively. This was extensively elaborated by Mativo J in Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] eKLR.

62. In the instant case, the Petitioners allege violation of their fundamental rights. Where a suit primarily seeks to enforce fundamental rights and freedoms and it is demonstrated that the claimed constitutional violations are not mere “bootstraps” or merely framed in Bill of Rights language as a pretext to gain entry to the Court, it is not barred by the doctrine of exhaustion. This is especially so because the enforcement of fundamental rights or freedoms is a question which can only be determined by the High Court.

34. The above decision was appealed against by the Respondents. The Court of Appeal in upholding the decision and in dismissing the appeal in Mombasa Civil Appeal No. 166 of 2018 Kenya Ports Authority v William Odhiambo Ramogi & 8 others [2019] eKLR held as follows: -

The jurisdiction of the High Court is derived from Article 165 (3) and (6) of the Constitution. Accordingly, the High Court has unlimited original jurisdiction in criminal and civil matters, including determination of a question of enforcement of the bill of rights and interpretation of the Constitution encompassing determination of any matter relating to the Constitutional relationship between the different levels of government.

At the High Court, we note that the learned Judges dealt with this matter under the question framed as follows: Is the court barred from considering the suit at present by virtue of Article 189 of the Constitution and Sections 33 and 34 of Inter-Governmental Relations Act of 2012 (IGRA)? The parties have advanced similar arguments as before the learned Judges of the High Court. The High Court went further than just looking at the ruling by Ogola J. They also took into account the doctrine of exhaustion as enunciated in Republic vs. Independent Election and Boundaries Commission (IEBC) ex parte National Super Alliance (NASA) Kenya & 6 Others [2017] eKLR. They applied a dual pronged approach before concluding that the dispute was not an inter-governmental dispute under IGRA. First, they considered that the test for determining the matter as an inter-governmental dispute for purposes of application of IGRA was not simply to look at who the parties to the dispute were, but the nature of the claim in question and; secondly, they considered that the claimed Constitutional violations seeking to be enforced are not mere “bootstraps.” We have keenly addressed our minds to the learned Judges’ decision and are satisfied that they stayed within the expected contours and properly directed themselves. Once they determined that the dispute was not inter-governmental in nature, we do not think it is necessary to consider whether the petitioners had exhausted their legal avenue. Jurisdiction by the High Court under Article 165 (5) of the Constitution became automatic. And in our view, it could not be ousted or substituted.

35. Further, in Civil Appeal 158 of 2017, Fleur Investments Limited -vs- Commissioner of Domestic Taxes & another [2018] eKLR, the Learned Judges of the Court of Appeal relied on an earlier decision in Speaker of National Assembly vs Njenga Karume (1990-1994) EA 546 to assume jurisdiction by by-passing the mechanism under Income Tax Tribunal. They observed as follows: -

23. For the reasons we have given earlier and others that will become apparent, there were definitely exceptional circumstances that existed in this case that were outside the ambit of the Income Tax Tribunal which called for intervention by way of judicial review. Whereas courts of Law are enjoined to defer to specialised Tribunals and other Alternative Dispute Resolution Statutory bodies created by Parliament to resolve certain specific disputes, the court cannot, being a bastion of Justice, sit back and watch such institutions ride roughshod on the rights of citizens who seek refuge under the Constitution and other legislations for protection. The court is perfectly in order to intervene where there is clear abuse of discretion by such bodies, where arbitrariness, malice, capriciousness and disrespect of the Rules of natural justice are manifest. Persons charged with statutory powers and duties ought to exercise the same reasonably and fairly.

121. Having set out the constitutional and legal confines of the exhaustion doctrine, I now apply the foregoing to the circumstances of the instant dispute.

122. The arguments pitting the exhaustion doctrine were fronted by Huawei and the Interested Party.

123. It is Huawei’s case that this Court should invoke the constitutional avoidance principle since the issues raised by the Petitioner are not constitutional in nature and should not be elevated to such status. It further was its case that the exceptions to the doctrine do not apply to the circumstances of the case since the Petitioner did not demonstrate absence of regulatory framework that could not handle the dispute.

124. The Interested Party also claimed that the instant Petition could not stand since the Board’s decision had not been challenged nor vacated. It was its case that the Petition was an appeal and or a review of the Board’s decision and as such this Court could not exercise such jurisdiction.

125. The Petitioner was of a contrary and rival position. It was contended that the Petition was not an appeal to challenge the Board’s decision. Instead, the Petition was intended to review the unconstitutional infractions which were visited against itself by the Ministry and Huawei. The Petitioner argued that the exceptions to the doctrine were applicable in this case since there is no other forum where its grievance could be exhausted before the jurisdiction of this Court is invoked.

126. A careful consideration of the doctrine of exhaustion reveals that the doctrine is a complete bar to a Court’s jurisdiction unless any of the exceptions apply.

127. In this case, the Petitioner alleged that the appellate process provided for under the Procurement Act would not yield an adequate forum for the adjudication of the dispute for two reasons. The first reason being that Huawei was not a party to the proceedings before the Ministry and the second reason being that not all the remedies sought in the Petition are available before the Board.

128. This Court dealt with the issue as to whether a party which did not take part in the procurement proceedings could still take part in the review proceedings before the Board. That was in Nairobi High Court Constitutional Petition No. E218 of 2021 Okiya Omtatah Okoiti vs. National Treasury & 3 Others (unreported).

129. The Court stated as follows: -

42. Section 170 of the Act provides for the parties to a review.

The parties are as follows: -

(a) the person who requested the review;

(b) the accounting officer of a procuring entity;

(c) the tenderer notified as successful by the procuring entity; and

(d) such other persons as the Review Board may determine.

43. There is no doubt that the Petitioner did not fall within the first three categories of the parties. That is because the Petitioner is not the person who requested for the review, the Petitioner is not the accounting officer of the National Treasury and he is not the tenderer notified as successful by the National Treasury.

44. In order to ascertain if the Petitioner falls under the persons contemplated under the category of ‘such other persons as the Review Board may determine’, suffice to note that the impugned procurement of the services was public in nature. The system of procurement was, hence, called upon to attain the constitutional muster of being fair, equitable, transparent, competitive and cost-effective.

45. In order to understand the context in which the term ‘‘such other persons as the Review Board may determine’ is used in Section 170 of the Act, there is need to look at one of the rules of interpretation. That is the ejus dem generis rule.

46. The ejus dem generis rule is an interpretational principle in law. It is a rule of construction that guides Court in reconciling any incompatibility between specific and general words.

47. Stroud's Judicial Dictionary 3^rd Edition, defines the principle as follows:

Where a statute, or other document, enumerates several classes of persons or things, and immediately following and classed with such enumeration the clause embraces ‘other’ persons or things – the word ‘other’ will generally be read as ‘other such like’, so that the persons or things therein comprised may be read as ejus dem generis with, and not of a quality superior to, or different from, those specifically enumerated.

48. The Black’s Law Dictionary, Garner A. Bryan, 9^th Edition, Thomson Reuters 2009 at page 594 defines the doctrine in the following manner: -

A canon of construction holding that when a general word or phrase follows a list of specifics, the general word or phrase will be interpreted to include only items on the same class as those listed. For example, in the phrase horses, cattle, sheep, pigs, goats, or any other farm animals, the general language or any other farm animals –despite its seeming breadth- would probably be held to include only four-legged, hoofed mammals typically found on farms, and thus would exclude chickens.

49. Therefore, where general words follow specific words in an enumeration describing the legal subject, ejus dem generis principle requires that the general words are construed to embrace only objects similar in nature to those enumerated by the preceding specific words.

50. The rule, therefore, accomplishes the purpose of giving effect to both the specific and the general words by treating the particular words as indicating the class, and the general words as extending the provisions of the statute to everything embraced in that class, though not specifically named by the particular words.

51. In his treatise titled Sutherland Statutory Construction 3^rd Edition, 1984, Horrack Sutherland states at paragraph 4910 that for the doctrine to apply, the following conditions must exist: -

(i) That statute contains an enumeration by specific words;

(ii) The members of the enumeration constitute a class;

(iii) The class is not exhausted by the enumeration;

(iv) A general term follows the enumeration; and

(v) There is not clearly manifested an intent that the general term be given a broader meaning than the doctrine requires.

52. The Court of Appeal in Nairobi Civil Appeal 351 of 2012 Commissioner for the Implementation of the Constitution -vs- Attorney General & 2 others [2013] eKLR clearly brought out the application of the doctrine. Before it was the question whether ‘the marginalized’ fell within the category of persons named in Article 97(1)(c) of the Constitution….

53. The Learned Judges of Appeal spoke to ejus dem generis in reference to the High Court decision in Rangal Lemeguran & Others -vs- Attorney General & 2006 eKLR, where in interpreting the term special interests the High Court observed as follows: -

Although the Constitution does not define special interests contemplated by Section 33(1) [of the former Constitution] they include those interests which have not been taken care of by the election process and which are vital to the effectiveness of the democratic elections in terms of adequate representation for all-in a democracy. In other words, the special interests mean those interests which the normal electioneering process has failed to capture and represent.

54. The Judges then agreed with the proposition that ‘the marginalized’ fell into the group anticipated by the Article 97(1)(c) of the Constitution. The Judges had the following to say on the doctrine: -

…. there are some clear categories of people that qualify to be viewed as representing special interests, namely:

(i) ethnic minorities

(ii) the youth;

(iii) the blind;

(iv) the deaf;

(v) the physically disabled.

We can on our part add that religious minorities, linguistic or cultural minorities and racial minorities fall seamlessly into the category of special interests while the Constitution has also in the wisdom of the framers and the people of Kenya made inclusion of “workers” as a special interest group.

From what we have said so far, it should be obvious that for a class of persons to qualify to be called a special interest worthy of special representation under our constitutional framework, they must be a class as can fairly be said to have suffered marginalization and disadvantage keeping them away from the centre of the political process. That, to us, is the logical, rational nexus that at once attracts and glues such a class into proper location in both Section 34(9) of the Elections Act and Article 97(1) (c) of the Constitution.

That being our view of the matter, we agree with the appellant that an interpretation of Article 97(1)(c) of the Constitution invites the application of the ejus dem generis rule. The youth, persons with disabilities and workers clearly fall in the category of the marginalized, the disadvantaged and the vulnerable-those not sufficiently empowered to muscle their way, generally speaking, into the inner sanctums of political and state power. They are the natural underdogs in the rough and tumble of the political jungle more likely than not to be elbowed out of the centre and off the field unless special affirmative and protective measures be taken to aid them.

55. From the foregoing, the category of persons contemplated as ‘such other persons as the Review Board may determine’, in Section 170 of the Act could only mean such persons who are in a way interested in the outcome of a certain procurement or disposal process. I say so because if a person has no interest in an outcome of a procurement or disposal process, then such a person has no business appearing before the Board.

56. A person considering himself, herself or itself, as having sufficient interest in a procurement or disposal process and who is not among the person who requested for the review, or is not the accounting officer of the procuring entity and is not the tenderer notified as successful by the procuring entity, has the right to seek audience and demonstrate its interest before the Board. It, however, remains the discretion of the Board to either allow such a person to participate in the proceedings before it or not. The only exception to this requirement is when such a party demonstrates that the exceptions to the doctrine of exhaustion apply in his/her/its favour.

130. From the foregoing discussion, this Court found that the category of persons contemplated as ‘such other persons as the Review Board may determine’, in Section 170 of the Act could only mean such persons who are in a way interested in the outcome of a certain procurement or disposal process.

131. In this case, Huawei’s involvement in the procurement was to the extent of providing information about a tenderer it had previously dealt with. I have carefully perused the record and there is no indication that Huawei was interested in the outcome of the tender award. Dragging such a party which clearly has no interest in the outcome of the tender before the Board or on appeal will be counter the spirit behind Section 170(d) of the Procurement Act.

132. Having said so, this Court now finds and hold that, in the circumstances of this case, Huawei could not have been an appropriate party before the Board or on appeal.

133. The second reason as to why the Petitioner did not submit to the jurisdiction of the Board was on the lack of adequacy of the remedies sought before the Board.

134. Section 173 of the Act accords the Board wide powers when dealing with a Request for Review. For instance, the Board may annul anything the accounting officer of a procuring entity has done in the procurement or disposal proceedings, including annulling the procurement or disposal proceedings in their entirety; give directions to the accounting officer of a procuring entity with respect to anything to be done or redone in the procurement or disposal proceedings or it may substitute the decision of the Review Board for any decision of the accounting officer of a procuring entity in the procurement or disposal proceedings.

135. The Board may also order the payment of costs as between parties to the review in accordance with the scale as prescribed and may also order termination of the procurement process and commencement of a new procurement process.

136. This Court has already set out the nature of the reliefs sought in the Petition. They are numerous reliefs. They include declarations that the Constitution and the law were infringed, orders of judicial review, damages and compensation for the violation and contravention of the Petitioner’s rights and reputation, costs, among others.

137. In Okiya Omtatah Okoiti vs. National Treasury & 3 Others case (supra), this Court reiterated the position that the Board has the jurisdiction to determine whether the Constitution and the law are infringed during a procurement and/or disposal process.

138. The Court held that: -

39. It is, therefore, clear that the Act fuses the relevant aspects of the Constitution such that whenever the Act is applied, that can only be within the confines of the Constitution. It, hence, means that the Board, being a creature of the Act must, in discharging its mandate, uphold and defend the Constitution. Of course that calling is expressly so provided for in Article 3 of the Constitution to the extent that every person, as defined in Article 260 of the Constitution, has an obligation to respect, uphold and defend the Constitution.

40. Putting it more succinctly, the Board has the jurisdiction to determine whether the Constitution and the law were violated by a procuring public entity in respect to public procurement and assets disposal proceedings.

139. In this matter, one of the reliefs sought by the Petitioner is ‘an award of damages and compensation for the violation and contravention of the Petitioner’s rights and reputation’.

140. A reading of the Section 173 of the Procurement Act leaves no doubt that the Board has specific powers. The powers are clearly stated as much in the law. None of the powers of the Board relates to the grant of award of damages or grant of compensation for constitutional violations and injury to one’s reputation.

141. If this matter were to proceed before the Board, even by assuming that Huawei is enjoined as a necessary party, still the Board will not be able to deal with the prayer for award of damages and compensation for the violation and contravention of the Petitioner’s rights and reputation’.

142. It is, hence, apparent that, in the circumstances of this matter, the Board will not accord an adequate forum for the adjudication of the dispute as laid in the Petition.

143. Section 175 of the Procurement Act provides for an appeal against the decision of the Board by an aggrieved party after the Board determines a review application. The appeal is strictly by way of judicial review. Given that the issues of Huawei’s role in the matter and the aspect of compensation and damages were not among the issues which were determined by the Board, it is legally inconceivable that such be made part of an appeal to the High Court.

144. In sum, the doctrine of exhaustion seems not to be applicable in this matter. I say so because it has not been demonstrated that Huawei, the party which prompted the institution of the Petition herein, was in any way interested in the outcome of the tender award hence making it a necessary party before the Board or on appeal. Further, the Board lacks the jurisdiction to conclusively deal with all the disputed issues raised in the Petition. Likewise, the High Court sitting as an appellate body under Section 175 of the Procurement Act will have no jurisdiction to entertain any new claim against a party which never participated in the proceedings before the Board.

145. In such a scenario, the High Court as a constitutional Court, arises to fill in the void. It can only be most appropriate that the serious issues raised by the Petitioner be dealt with before the appropriate forum, which in this case, is the High Court sitting as a constitutional Court.

146. Needless to say, the foregoing could only have been the essence of Section 174 of the Procurement Act which provides that ‘the right to request a review under this Part is in addition to any other legal remedy a person may have’.

147. On the basis of the above discussion, this Court finds that the doctrine of exhaustion does not apply in this matter and answers the second issue in the negative.

148. The Court will now consider the next issue.

iii. Whether the Petition meets the precision threshold requirement:

149. In its Grounds of Opposition, the 3^rd Respondent posited that Petitioner did not demonstrate the violation of its constitutional rights, how the violations were committed and how they infringed on the Constitution.

150. The foregoing is a challenge on the precision requirement and the need to establish the manner of constitutional violations as was established by the longstanding principle in Anarita Karimi Njeru’s case.

151. The principle has stood the test of time and has severally been referred to by Courts.

152. The burden of proof on a Petitioner in a constitutional Petition was addressed by the Supreme Court in Communications Commission of Kenya & 5 Others vs. Royal Media Services Limited & 5 Others [2014] eKLR as follows: -

Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right 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 or her grievance. This principle emerges clearly from the High Court decision in Anarita 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 principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement.

153. The Court of Appeal in Mumo Matemu -vs -Trusted Society of Human Rights Alliance & 5 others [2013] eKLR, remarked as follows: -

…The principle in Anarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle. What Jessel, M.R said in 1876 in the case of Thorp v Holdsworth (1876) 3 Ch. D. 637 at 639 holds true today:

…. The whole object of pleadings is to bring the parties to an issue, and the meaning of the rules…was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to define issues, and thereby diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing.”

The petition before the High Court referred to Articles 1, 2, 3, 4, 10, 19,20 and 73 of the Constitution in its title. However, the petition provided little or no particulars as to the allegations and the manner of the alleged infringements. For example, in paragraph 2 of the petition, the 1^st respondent averred that the appointing organs ignored concerns touching on the integrity of the appellant. No particulars were enumerated. Further, paragraph 4 of the petition alleged that the Government of Kenya had overthrown the Constitution, again, without any particulars. At paragraph 5 of the amended petition, it was alleged that the respondents have no respect for the spirit of the Constitution and the rule of law, without any particulars.

We wish to reaffirm the principle holding on this question in Anarita Karimi Njeru (Supra). In view of this, we find that the petition before the High Court did not meet the threshold established in that case. At the very least, the 1^st respondent should have seen the need to amend the petition so as to provide sufficient particulars to which the respondents could reply. Viewed thus, the petition fell short of the very substantive test to which the High Court made reference to. In view of the substantive nature of these shortcomings, it was not enough for the superior court below to lament that the petition before it was not the “epitome of precise, comprehensive, or elegant drafting,” without requiring remedy by the 1^st respondent…

154. Similarly, in Nairobi High Court Constitutional Petition No. 479 of 2013, Rev. Timothy Njoya vs The Hon. Attorney General Others 2013 eKLR, Lenaola, J (as he then was) spoke to the principle in Anarita Karimi Njeru in the following manner: -

…. The Petitioner cannot come to court to seek facts and information he intends to use to prove the very case that he is arguing before the Court. He must also plead his case with some degree of precision and set out the manner in which the Constitution has been violated by whom and even state the Article of the Constitution that has been violated and the manner in which it has been violated.

155. I now turn to the craftsmanship of the Petition. In paragraph 27 to 43, the Petitioner enumerated the alleged constitutional violations. Paragraph 45 described the manner in which the right to access information was allegedly infringed upon when the 1^st and 3^rd Respondents withheld crucial information that led to the Petitioner’s disqualification.

156. In paragraph 46, the Petitioner detailed how its right to fair administrative action was violated when the 1^st Respondent failed to avail reasons for its decisions and the failure to accord the Petitioner the opportunity to defend itself.

157. On a careful perusal of the Petition, this Court finds that the Petition meets the precision test and ought to be determined on its merit.

158. The issue is hereby answered in the affirmative.

iv. Whether the Petitioner’s right under Article 47 of the Constitution was violated:

159. The Petitioner contended that its right to a fair administrative action under Article 47 of the Constitution was infringed when the Ministry relied on adverse information from Huawei under the auspices of a confidence letter to disqualify it the procurement without seeking its response to it.

160. Article 47 of the Constitution and Sections 4 and 5 of the Fair Administrative Actions Act (hereinafter referred to as ‘the FAA Act’) underpin the obligation upon administrative entities to be more robust, transparent and to even give reasons while making decisions.

161. Article 47 of the Constitution provides as follows: -

(1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.

(2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.

(3) Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall—

(a) provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and

(b) promote efficient administration.

162. The legislation that was contemplated under Article 47(3) of the Constitution is the FAA Act. 

163. Section 4 of the FAA Act states as follows: -

(1) Every person has the right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair.

(2) Every person has the right to be given written reasons for any administrative action that is taken against him.

(3) Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision—

(a) prior and adequate notice of the nature and reasons for the proposed administrative action;

(b) an opportunity to be heard and to make representations in that regard;

(c) notice of a right to a review or internal appeal against an administrative decision, where applicable;

(d) a statement of reasons pursuant to Section 6;

(e) notice of the right to legal representation, where applicable;

(f) notice of the right to cross-examine or where applicable; or

(g) information, materials and evidence to be relied upon in making the decision or taking the administrative action.

(4) The administrator shall accord the person against whom administrative action is taken an opportunity to—

(a) attend proceedings, in person or in the company of an expert of his choice;

(b) be heard;

(c) cross-examine persons who give adverse evidence against him; and

(d) request for an adjournment of the proceedings, where necessary to ensure a fair hearing.

(5) Nothing in this section, shall have the effect of limiting the right of any person to appear or be represented by a legal representative in judicial or quasi-judicial proceedings.

(6) Where the administrator is empowered by any written law to follow a procedure which conforms to the principles set out in Article 47 of the Constitution, the administrator may act in accordance with that different procedure.

164. Section 2 of the FAA Act defines an ‘administrative action’ and an ‘administrator’ as follows: -

‘administrative action’ includes -

(i) The powers, functions and duties exercised by authorities or quasi-judicial tribunals; or

(ii) Any act, omission or decision of any person, body or authority that affects the legal rights or interests of any person to whom such action relates;

‘administrator’ means ‘a person who takes an administrative action or who makes an administrative decision’.

“decision” means any administrative or quasi-judicial decision made, proposed to be made, or required to be made, as the case may be.

“failure” in relation to the taking of a decision, includes a refusal to take the decision.

165. Addressing itself to the above provisions, the Court of Appeal in Civil Appeal 52 of 2014 Judicial Service Commission vs. Mbalu Mutava & Another (2015) eKLR held that: -

Article 47(1) marks an important and transformative development of administrative justice for, it not only lays a constitutional foundation for control of the powers of state organs and other administrative bodies, but also entrenches the right to fair administrative action in the Bill of Rights. The right to fair administrative action is a reflection of some of the national values in article 10 such as the rule of law, human dignity, social justice, good governance, transparency and accountability. The administrative actions of public officers, state organs and other administrative bodies are now subjected by article 47(1) to the principle of constitutionality rather than to the doctrine of ultra vires from which administrative law under the common law was developed.

166. Similarly, the High Court in Republic v Fazul Mahamed & 3 Others ex-parte Okiya Omtatah Okoiti [2018] eKLR discussed the issue as follows: -

25. In John Wachiuri T/A Githakwa Graceland & Wandumbi Bar & 50 Others vs The County Government of Nyeri & Ano[39] the Court emphasized that there are three categories of public law wrongs which are commonly used in cases of this nature.

These are: -

Illegality- Decision makers must understand the law that regulates them. If they fail to follow the law properly, their decision, action or failure to act will be "illegal". Thus, an action or decision may be illegal on the basis that the public body has no power to take that action or decision, or has acted beyond it powers.

Fairness- Fairness demands that a public body should never act so unfairly that it amounts to abuse of power. This means that if there are express procedures laid down by legislation that it must follow in order to reach a decision, it must follow them and it must not be in breach of the rules of natural justice. The body must act impartially, there must be fair hearing before a decision is reached.

Irrationality and proportionality-The Courts must intervene to quash a decision if they consider it to be demonstrably unreasonable as to constitute 'irrationality" or 'perversity' on the part of the decision maker. The benchmark decision on this principle of judicial review was made as long ago as 1948 in the celebrated decision of Lord Green in Associated Provincial Picture Houses Ltd vs Wednesbury Corporation: -

If decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the Courts can interfere...but to prove a case of that kind would require something overwhelming….

167. It was argued that the decision by the Ministry in withholding the contents of the confidential letter from the Petitioner was not an administrative action and as such Article 47 of the Constitution does not apply.

168. The simple answer to that argument is in Section 2 of the FAA Act which defines an ‘administrative action’ as either powers, functions and duties exercised by authorities or quasi-judicial tribunals or any act, omission or decision of any person, body or authority that affects the legal rights or interests of any person to whom such action relates.

169. The decision by the Ministry, being a public body, in not sharing and calling upon the Petitioner to respond to the contents of the confidential letter prior to relying on it to disqualify the Petitioner was, therefore, an administrative action. It was an administrative action because it was a power exercised by a public body and further that the decision affected the right of the Petitioner against being condemned unheard. As such, the decision had to be in tandem with the constitutional imperatives of expedition, efficiency, lawfulness, reasonableness and procedural fairness.

170. On lawfulness, Section 83 of the Procurement Act grants the 1^st Respondent the power to conduct due diligence after tender evaluation, but before the tender award.

171. The 1^st Respondent argued that with such an express provision of the law, it was not under any obligation to invite the Petitioner for its post qualification exercise despite receiving and acting on adverse reference from the 3^rd Respondent.

172. Countering the foregoing is a holding in Mombasa High Court Constitutional Petition No. 159 of 2018 consolidated with Constitutional Petition No. 201 of 2019 William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) (2020) eKLR where the Court stated as follows: -

115. The starting point is the Constitution. Article 2 inter alia declares the Constitution as the supreme law of the land which binds all persons and all State organs at both levels of government. It also provides that the validity or legality of the Constitution is not subject to any kind of challenge and that any law that is inconsistent with it is void to the extent of that inconsistency. Further, any act or omission in contravention of the Constitution is invalid. Article 3 places an obligation upon every person to respect, uphold and defend the Constitution.

116. Article 10 provides for the national values and principles of governance which bind all State organs, State officers, public officers and all persons whenever any of them applies or interprets the Constitution, enacts, applies or interprets any law or makes or implements any public policy decisions.

117. The Constitution also provided for alignment of the laws then in force at its promulgation. Section 7(1) of the Sixth Schedule states as follows: -

Any law in force immediately before the effective date continues in force and shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this Constitution.

118. Expounding on Article 10 of the Constitution, the Court of Appeal in Independent Electoral and Boundaries Commission (IEBC) v National Super Alliance (NASA) Kenya & 6 Others, Civil Appeal No. 224 of 2017; [2017] eKLR held that:

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 enforced gradually. Likewise, the values of human dignity, equity, social justice, inclusiveness and non-discrimination 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(2) of the Constitution is justiciable and enforceable and violation of the Article can found a cause of action either on its own or in conjunction with other Constitutional Articles or Statutes as appropriate.

173. The constitutional dictates, therefore, foreclosed the Ministry’s argument that its power under Section 83 of the Procurement Act is unquestionable. The clear response is that all pre-2010 laws, including the Procurement Act, must be applied with the alterations, adaptations, qualifications and exceptions necessary to bring each of them into conformity with the Constitution.

174. In this case, the Ministry ought to have applied Section 83 of the Procurement Act with the foregoing constitutional imperative at hand. Having failed to do so, the upshot is that whereas the law gives the Ministry the power under Section 83 of the Procurement Act, the application of the power was questionable.

175. As to whether there was procedural fairness in reaching the impugned decision, the Ministry was categorical that it was shielded by Section 83 of the Procurement Act from in any way involving the Petitioner in the post evaluation due diligence.

176. The Ministry missed the point. Since the information it received from Huawei was averse to the Petitioner, then it ought to have been mindful of not using such information to the detriment of the Petitioner before according the Petitioner an opportunity to respond to it.

177. Section 4 of the FAA Act called upon the Ministry to at least undertake the following: -

(a) Inform the Petitioner of the nature of the adverse information from Huawei and its intention to use such information in reaching the proposed administrative action.

(b) Give reasons for the proposed administrative action.

(c) accord an opportunity to the Petitioner to make representations in response to the adverse information through itself, an expert or legal representative.

178. The Ministry did not undertake any such actions.

179. In Onyango Oloo -vs- Attorney General [1986-1989] EA 456 the Court of Appeal expressed itself on the need to incorporate rules of natural justice even in interpretation of statutes. The Learned Judges observed as follows: -

There is a presumption in the interpretation of statutes that rules of natural justice will apply and therefore the authority is required to act fairly and so to apply the principle of natural justice...A decision in breach of the rules of natural justice is not cured by holding that the decision would otherwise have been right since if the principle of natural justice is violated, it matters not that the same decision would have been arrived at...In the course of decision making, the rules of natural justice may require an inquiry, with the person accused or to be punished, present, and able to understand the charge or accusation against him, and able to give his defence. In other cases it is sufficient if there is an investigation by responsible officers, the conclusions of which are sent to the decision-making body or person, who, having given the person affected a chance to put his side of the matter, and offer whatever mitigation he considers fit to put forward, may take the decision in the absence of the person affected. The extent to which the rules apply depends on the particular nature of the proceedings...It is not to be implied that the rules of natural justice are excluded unless Parliament expressly so provides and that involves following the rules of natural justice to the degree indicated...Courts are not to abdicate jurisdiction merely because the proceedings are of an administrative nature or of an internal disciplinary character. It is a loan, which the Courts in Kenya would do well to follow, in carrying out their tasks of balancing the interests of the executive and the citizen. It is to everyone’s advantage if the executive exercises its discretion in a manner, which is fair to both sides, and is seen to be fair...Denial of the right to be heard renders any decision made null and void ab initio.

180. The importance of natural justice was also ably captured in Republic -vs- The Honourable the Chief Justice of Kenya & Others Ex Parte Moijo Mataiya Ole Keiwua, Nairobi HCMCA No. 1298 of 2004 in the following terms: -

…. The right to be heard has two facts, intrinsic and instrumental. The intrinsic value of that right consists in the opportunity which it gives to the individuals or groups, against whom decisions taken by public authorities operate, to participate in the proceedings by which those decisions are made, an opportunity to express their dignity as persons. The ordinary rule which regulates all proceedings is that persons who are likely to be affected by the proposed/likely action must be afforded an opportunity of being heard as to why that action should not be taken. The hearing may be given individually or collectively, depending upon the facts of each situation. A departure from this fundamental rule of natural justice may be presumed to have been intended by the Legislature only in circumstances which warrant it and such circumstances must be shown to exist, when so required, the burden being upon those who affirm their existence…

181. I believe I have said enough on the procedural fairness.

182. There is also the issue of reasonability in the decision making. In order to prove that a decision was unreasonable, a party must demonstrate that the impugned decision was so unreasonable that no reasonable authority could ever have come to it. In other words, the party ought to prove that the decision was arbitrary.

183. Speaking to the concept of arbitrariness, the Court of Appeal in Malindi Civil Appeal 56 of 2014 Mtana Lewa v Kahindi Ngala Mwagandi [2015] eKLR made reference to the Black’s Law Dictionary 8^th Edition that defined arbitrariness in the following manner: -

in it connotes a decision or an action that is based on individual discretion, informed by prejudice or preference, rather than reason or facts.

184. The High Court in Civil Suit No. 3 of 2006 Kasimu Sharifu Mohamed vs. Timbi Limited [2011] eKLR referred to Oxford Advanced Learner’s Dictionary A. S. Horby Sixth Edition Edited by Sally Wehmeiner which defines the term ‘arbitrary in the following way: -

the term arbitrary in the ordinary English language means an action or decision not seeming to be based on a reason, system and sometimes, seeming unfair.

185. The Supreme Court of China in Sharma Transport vs. Government of A. Palso (2002) 2 SCC 188 had the occasion to interrogate the meaning and import of the term ‘arbitrarily’. The Court observed as follows: -

The expression ‘arbitrarily’ means: in an unreasonable manner, as fixed or done capriciously or at pleasure, without adequate determining principle, not founded in the nature of things, non-rational, not done or acting according to reason or judgment, depending on the will alone.

186. The term ‘arbitrariness’ had earlier on been defined by the Court (Supreme Court of China) in Shrilekha Vidyarthi vs. State of U.P (1991) 1 SCC 212 when it comprehensively observed as follows;

The meaning and true import of arbitrariness is more easily visualized than precisely stated or defined. The question, whether an impugned act is arbitrary or not, is ultimately to be answered on the facts and in the circumstances of a given case. An obvious test to apply is to see whether there is any discernible principle emerging from the impugned act and if so, does it satisfy the test of reasonableness. Where a mode is prescribed for doing an act and there is no impediment in following that procedure, performance of the act otherwise and in a manner which does not disclose any discernible principle which is reasonable, may itself attract the vice of arbitrariness. Every State action must be informed by reason and it follows that an act uninformed by reason, is arbitrary. Rule of law contemplates governance by laws and not by humour, whims or caprices of the men to whom the governance is entrusted for the time being. It is trite that be you ever so high, the laws are above you'. This is what men in power must remember, always.

187. The Ministry did not give any tangible reasons as to why it blatantly disregarded the Constitution. It only stated in passing that Section 83 of the Procurement Act was self-executing and did not call for the application of any law or the Constitution.

188. A reasoning to the effect that a statute has no room for the application or infusion of the Constitution is itself unconstitutional by dint of Article 2 of the Constitution. The Constitution is the supreme law of the land and all the laws must derive from it. Having disregarded the Constitution with impunity, the decision by the Ministry can only be deemed unreasonable and arbitrary.

189. This Court now returns the verdict that the decision by the Ministry to use the adverse information from Huawei to the detriment of the Petitioner without any reference to the Petitioner is in contravention of Article 47 of the Constitution as well as Section 4 of the FAA Act.

(v) What remedies ought to issue, if any?

190. The Petition is successful. As such, the Petitioner is entitled to appropriate reliefs in the circumstances.

191. Courts have severally rendered on reliefs. The Court of Appeal in Total Kenya Limited vs Kenya Revenue Authority (2013) eKLR held that even in instances where there are express provisions on specific reliefs a Court is not precluded from making any other orders under its inherent jurisdiction for ends of justice to be met to the parties. The High Court in Simeon Kioko Kitheka & 18 Others vs. County Government of Machakos & 2 Others (2018) eKLR held that Article 23 of the Constitution does not expressly bar the Court from granting conservatory orders where a challenge is taken on the constitutionality of legislation.

192. In Republic Ex Parte Chudasama vs. The Chief Magistrate’s Court, Nairobi and Another Nairobi HCCC No. 473 of 2006, [2008] 2 EA 311, Rawal, J (as she then was) stated that:

While protecting fundamental rights, the Court has power to fashion new remedies as there is no limitation on what the Court can do. Any limitation of its powers can only derive from the Constitution itself. Not only can the court enlarge old remedies, it can invent new ones as well if that is what it takes or is necessary in an appropriate case to secure and vindicate the rights breached. Anything less would mean that the Court itself, instead of being the protector, defender, and guarantor of the constitutional rights would be guilty of the most serious betrayal. See Gaily vs. Attorney-General [2001] 2 RC 671; Ramanoop vs. Attorney General [2004] Law Reports of Commonwealth (From High Court of Trinidad and Tobago); Wanjuguna vs. Republic [2004] KLR 520…The Court is always faced with variety of facts and circumstances and to place it into a straight jacket of a procedure, especially in the field of very important, sensitive and special jurisdiction touching on liberties and rights of subjects shall be a blot on independence and many facetted jurisdiction and discretionary powers of the High Court. See The Judicial Review Handbook (3^rd Edn) by Michael Fordham at 361.

193. The Constitutional Court of South Africa in Fose vs. Minister of Safety & Security [1977] ZACC 6 emphasized the foregoing as follows: -

Appropriate relief will in essence be relief that is required to protect and enforce the Constitution. Depending on the circumstances of each particular case the relief may be a declaration of rights, an interdict, a mandamus or such other relief as may be required to ensure that the rights enshrined in the Constitution are protected and enforced. If it is necessary to do so, the courts may even have to fashion new remedies to secure the protection and enforcement of these all important rights.

194. One of the relies sought is an order of Mandamus compelling the 1^st Respondent to make a tender award in favour of the Petitioner in the subject Tender No. MOICT/SDICT/248/2020-2021 for Provision of Operation and Maintenance of National Optic Fibre Backbone Infrastructure Phase II (NOFBI II) Active and Passive Equipment for Lot 2: Western Region being the bidder with the lowest responsive cost.

195. This Court must state that whenever a Court is dealing with a scenario where a public body is accused of not undertaking its functions and duties as required in law, the Court must remain alive that it must not transcend into the arena of usurping the powers and jurisdiction of that public body and end up doing what the law clearly mandates the public body to do.

196. A like scenario was considered by the Court of Appeal at Kisumu in Civil Appeal Nos. 89 and 90 of 2011 West Kenya Sugar Company Limited vs. Kenya Sugar Board & Butali Sugar Mills Limited (2014) eKLR where the High Court at Kisumu had issued a mandamus directing the then Kenya Sugar Board to issue a manufacturing license to Butali Sugar Mills Limited on being satisfied that Butali Sugar Mills Limited had met all the requisite requirements for issuance of a manufacturing license but the Kenya Sugar Board, then the regulator in the sugar sector, was unreasonably not discharging its duty.

197. The Court of Appeal in allowing an appeal by West Kenya Sugar Company Limited against the order of the High Court held that the High Court did not have the jurisdiction to order the Kenya Sugar Board to issue a manufacturing license. Instead, the Court of Appeal directed the Kenya Sugar Board to expeditiously hear and determine the application by Butali Sugar Mills Limited for the manufacturing license in accordance to law and with notice to all necessary parties including West Kenya Sugar Company Limited.

198. In respect to the request that this Court issues a mandamus to compel the Ministry to award the tender to the Petitioner, this Court finds that it has no jurisdiction to compel the Ministry to make the award sought. However, the Court will consider further reliefs so that the decision does not become a like a horse which is dead on arrival.

199. The Petitioner has also sought for award of damages and compensation for violation and contravention of its rights as well as its reputation. Whereas this Court has found that the Petitioner’s right under Article 47 of the Constitution was infringed, there was no evidence to prove that the Petitioner’s reputation was also contravened. The prayer for an award of damages in respect of the Petitioner’s reputation is hence declined.

200. The Court of Appeal dealt with the issue of damages for violations of rights and fundamental freedoms in Lucas Omoto Wamari v Attorney General & another [2017] eKLR. This is what the Court stated: -

38. The trial judge made declarations that the appellant’s fundamental rights and freedoms were violated. The question that arises is whether the trial judge awarded any damages in regard to these violations. It was posited that the award of general damages of Kshs. 500,000/= that was made by the trial judge was an all-inclusive figure. Our perusal of the judgment (at paragraph 37 and 38), reveals that the award of Kshs. 500,000/= was in regard to the personal injuries suffered by the appellant from the gun-shot wound, as well as Kshs. 120,000/= for future medical expenses for the same injuries, and Kshs. 53,106/= being special damages incurred as medical expenses again for the same injuries. Except for declining to award exemplary damages, the trial judge did not make any reference to the violations relating to the appellant’s fundamental rights and freedoms in his assessment on the issue of damages.

39. In his prayers in the plaint the appellant not only prayed for declarations but at prayer (vi) & (vii) specifically prayed for general damages for violations of his fundamental rights and freedoms. Mere declarations without any specific award of damages do not vindicate the appellant neither do they convey a deterrent message regarding the sanctity of the Constitution and the need for protection of fundamental rights and freedoms. Therefore, the omission to make a specific award for these violations, was an error that justifies the intervention of this Court. (Emphasis added).

201. The Court of Appeal in Civil Appeal 98 of 2014, Gitobu Imanyara & 2 others v Attorney General [2016] eKLR, also discussed the legal principles guiding the making of awards in instances where violations of rights and fundamental freedoms are proved. The Court remarked that: -

Consistent with the above judicial experience and philosophy, it seems to us that the award of damages for constitutional violations of an individual's right by state or the government are reliefs under public law remedies within the discretion of a trial court, however, the court's discretion for award of damages in Constitutional violation cases though is limited by what is “appropriate and just “according to the facts and circumstances of a particular case. As stated above the primary purpose of a constitutional remedy is not compensatory or punitive but is to vindicate the rights violated and to prevent or deter any future infringements. The appropriate determination is an exercise in rationality and proportionality. In some cases, a declaration only will be appropriate to meet the justice of the case, being itself a powerful statement which can go a long way in effecting reparation of the breach, if not doing so altogether. In others, an award of reasonable damages may be called for in addition to the declaration. Public policy considerations is also important because it is not only the petitioner's interest, but the interests of society as a whole that ought as far as possible to be served when considering an appropriate remedy.

202. The application of the rationality and proportionality principle in coming up with awards largely depend on the conduct of the impugned party. In this case that party is the 1^st Respondent.

203. The procurement process in this matter has had a surprising trend. All awards of the tender by the Ministry were made to the Interested Party. All the awards were successfully challenged at the Board. On re-evaluation as ordered by the Board, the Ministry again and in all instances awarded tender to the Interested Party.

204. When it had become apparent that there was no credible way to otherwise deal with the Petitioner, the Ministry sought to revert to Huawei. On obtaining the adverse report, the Ministry did not bother to share the contents with the Petitioner for reasons which this Court has found to be unreasonable and arbitrary. Infact, from the facts of the case, the Ministry’s conduct is a glaring exercise of impunity. One cannot just ignore to comply with the Constitution and it be taken as business as usual. That cannot be the case in a country where the rule of law is constitutionally-entrenched.

205. This Court is, hence, satisfied that damages ought to issue in this matter so as to vindicate the Petitioner and to also convey a deterrent message regarding the sanctity of the Constitution and the need for protection of fundamental rights and freedoms.

206. In awarding the damages, this Court will be guided by various decisions where Courts awarded damages for constitutional violations akin to the position in this matter. They include Eunice Nganga -vs- Higher Education Loans Board & 2 others [2020] eKLR where the Court awarded Kshs. 10 Million, M W K v Another -vs- Attorney General & 3 others [2017] eKLR where the Court awarded Kshs. 4 Million, Rachel Mutheu Ndambuki -vs- Cabinet Secretary, Ministry of Lands and Physical Planning & 2 others [2020] eKLR where the Court made an award of Kshs. 3.5 Million and Lucas Omoto Wamari -vs- Attorney General & another [2017] eKLR where the Court awarded Kshs. 2 Million.

207. Others decisions include Jennifer Muthoni Njoroge and Others v the Attorney General [2012] eKLR, in which four of the Petitioners were each awarded general damages for amounts ranging between Kshs.1.5 million and Kshs.2 million for violations of rights and in Benedict Munene Kariuki & 13 others v the Attorney General High Court Petition No. 722 of 2009, where the Plaintiffs were each similarly awarded general damages of Kshs.2 million for similar constitutional violations.

Disposition:

208. As I come to the end of this judgment, I must apologize for its late delivery. The delay was caused by various reasons including an upsurge of election-related matters in the Division which ordinarily take a very urgent character and ought to be dealt with over the rest of the matters. I must as well appreciate the parties and Counsel for the patience and accommodation extended to the Court during the waiting period.

209. Flowing from the foregoing, the following final orders hereby issue in respect to the Petition and the Notice of Motion dated 27^th February, 2021: -

(a) A Declaration hereby issues that the decision by the 1^st Respondent to act upon the contents of the 3^rd Respondent’s confidential reference letter dated 29^th July, 2021 on the matter of Tender No. MOICT/SDICT/248/2020-2021 for Provision of Operation and Maintenance of National Optic Fibre Backbone Infrastructure Phase II (NOFBI II) Active and Passive Equipment for Lot 2: Western Region which letter contained adverse information authored by the 3^rd Respondent against the Petitioner without according the Petitioner an opportunity to respond to the said information is in contravention of Article 47(2) of the Constitution and Section 4 of the Fair Administrative Actions Act. The said decision is, therefore, unconstitutional, null and void. The decision is hereby quashed.

(b) A Judicial Review Order by way of an Order of CERTIORARI do hereby issues to remove to this Court for purposes of quashing the  3^rd Respondent’s confidential reference letter dated 29^th July, 2021 which letter contained adverse information issued by the 3^rd Respondent against the Petitioner and the 1^st Respondent's letter of notification of regret addressed to the Petitioner dated 17^th September 2021 together with any other notifications from the 1^st Respondent to other tenderers with respect to Tender No. MOICT/SDICT/248/2020-2021 for Provision of Operation and Maintenance of National Optic Fibre Backbone Infrastructure Phase II (NOFBI II) Active and Passive Equipment for Lot 2: Western Region. The said letters be and are hereby quashed.

(c) An order hereby issues directing the  1^st Respondent to, within 14 days of this order, undertake a re-evaluation of the Tender No. MOICT/SDICT/248/2020-2021 for Provision of Operation and Maintenance of National Optic Fibre Backbone Infrastructure Phase II (NOFBI II) Active and Passive Equipment for Lot 2: Western Region without reference to the 3^rd Respondent’s letter dated 29^th July, 2021 and/or any part of the information contained therein.

(d) Due to the passage of time, in the event the 1^st Respondent fails to carry out the re-evaluation within the set period, it will be deemed that the Tender No. MOICT/SDICT/248/2020-2021 for Provision of Operation and Maintenance of National Optic Fibre Backbone Infrastructure Phase II (NOFBI II) Active and Passive Equipment for Lot 2: Western Region was lawfully awarded to the Petitioner by the 1^st Respondent and the 1^st Respondent shall forthwith issue the tenderers with the requisite letters and all other subsequent and necessary documents as the case may be.

(e) Damages for the violation and contravention of the Petitioner's right to a fair administrative action under Article 47(2) of the Constitution are hereby assessed at Kshs. 5,000,000/= (Read: Kenya Shillings Five Million Only) to be borne by the 1^st Respondent.

(f) The 1^st Respondent shall also shoulder the costs of the Petition.

Orders accordingly.

DELIVERED, DATED AND SIGNED AT NAIROBI THIS 17^TH DAY OF MARCH, 2022.

A. C. MRIMA

JUDGE

Judgment virtually delivered in the presence of:

Miss Caroline Oduor, Learned Counsel for the Petitioner.

Mr. Thande Kuria, Learned Counsel for the 1^st and 2^nd Respondents.

Mr. Nelson Ondieki and Miss. Mishi Kirimi, Learned Counsel for the 3^rd Respondent.

Mr. Ligunya, Learned Counsel for the Interested Party.

Elizabeth Wanjohi – Court Assistant.