BERNARD NJIINU NJIRAINI VS The Republic AND PPRA AND 4 Others

1. The application that is before this court is the one dated 21st October 2020 wherein the applicant is seeking: -

a) An order of certiorari for purposes of quashing to quash portions of the 2nd Respondents Public Investment Committee’s (PIC) Report dated 29th May 2020 on the Pre-Export Verification of Conformity (PVoC) to Standard Services for Used Motor Vehicles, Mobile Equipment and Used Spare Parts specifically found at its Chapter 5, pages 61, 62 and 63, paragraphs (iii), (iv{a-j}),(v) & (vii) that recommended that the Applicant be held personally liable for delaying to seek the Attorney General’s opinion under S.134 Public Procurement & Asset Disposal 2 and for withholding or giving misleading information to the Attorney General when the alleged opinion was sought, for ignoring PIC’s opinion that he seeks and follows the Attorney General’s legal opinion before awarding tender no. KEBS/T010/2019-2021, for loss or costs arising from litigation relating to the same tender.

b) An order of Prohibition stopping the Respondents from adopting and implementing the report of the Public Investment Committee dated 29th May 2020 on the Pre-Export Verification of Conformity (PVoC) to Standard Services for Used Motor Vehicles, Mobile Equipment and Used Spare Parts specifically found at its Chapter 5, pages 61, 62 and 63, paragraphs (iii), (iv{a-j}),(v) & (vii) that recommended that the Applicant be held personally liable for delaying to seek the Attorney General’s opinion under S.134 Public Procurement & Asset Disposal Act 2015 and for withholding or giving misleading information to the Attorney General when the alleged opinion was sought, for ignoring PIC’s opinion that he seeks and follows the Attorney General’s legal opinion before awarding tender no. KEBS/T010/2019-2021, for loss or costs arising from litigation relating to the same tender.

2. The Application is predicated on the supporting and verifying affidavit of the Applicant, the statutory statement filed herein, further and supplementary affidavits.

3. As the Accounting Officer of the Kenya Bureau of Standards, the Applicant caused the floating of an international tender number KEBS/T010/2019-2021 on the Pre-Export Verification of Conformity (PVoC) to Standard Services for Used Motor Vehicles, Mobile Equipment and Used Spare Parts.

4. The tender's legality and propriety were, however, challenged before the Public Procurement Administrative Board (PPARB), in PPARB Review Application No. 18 of 2020, which was struck out. The grievant lodged Judicial Review Application No. 66 of 2020 against the decision of the Review Board dated 26 February 2020 but lodged a Notice of Withdrawal dated 8th May 2020.

5. He entered into a contract with the winning bidders, EAA Co. Limited and Auto Terminal Japan Limited, in his official capacity.

6. Thereafter, the Kenya Bureau of Standards published a Notice of entry into the contracts.

7. It is his case that he complied with all statutory duties and concluded the tender by entering into the contracts.

8. The Auditor General had audited a previous tender that had been floated by the Kenya Bureau of Standards, tender number KEBS/T019/2017-2020 before The Applicant joined the institution as its Managing Director, in which a contract had been entered with another service-provider, which was being performed and compiled the Special Audit Report dated 10th July 2019 in which there was no recommendation against the Applicant of whatever nature, or of the then Managing Director of the Kenya Bureau of Standards.

9. The Auditor General presented its Audit Report above before the 2nd Respondent under Article 229(7) Constitution.

10. The 2nd Respondent's Public Investment Committee (PIC) had its first sitting in deliberating the Special Audit Report above on 13th February 2020.

11. The Applicant also argues the 2nd Respondents’ PIC went outside its audited subject matter, the previous tender no.
KEBS/TO19/2017-2020, considered the current tender no. KEBS/T010/2019-2021 and made adverse recommendations against him that he be held personally liable for loss and costs owing to civil litigation regarding the latter tender, investigations and possible criminal sanction against him, the latter recommendations of which had been outside its mandate under the 2nd Respondent's Standing Order 197(1) & (2) as they had not been the subject of the Auditor General's afore mentioned Special Audit Report dated 10th July2019 as set out in the PIC Report dated 27 May 2020.

12. The PIC Report dated 10th May 2020 was tabled before the 2nd Respondent on the 2nd June 2020 and was scheduled to be debated and adopted on or about the 15th September 2020.

13. The Applicant had petitioned the 1st Respondent on the 5th August 2020 under the 2nd Respondent's Standing Order 220(1) seeking to stop the adoption of the portions of the PIC Report. His Petition was not acted upon.

14. Whereas the PIC had expressly acknowledged that it had only considered the tender no. KEBS/T010/2019-2021 because it was umbilically connected to the Special Audit Report dated 10th July 2019 under consideration, and that it never went into its merits as it had been a work in progress by the Kenya Bureau of Standards, its recommendations portray the contrary for, out of the 18 recommendations by the Committee, 14 were on the current tender no. KEBS/T010/2019-2019 which, contrary to Article 229(7) Constitution and the 2nd Respondent's Standing Orders 197 and 206(7)(c).

15. He disagrees with Recommendations of the Report which seeks to hold him personally liable for failing to seek the opinion of the Hon. Attorney General in time or for misleading the Hon Attorney General as to the existence of suits challenging the tender, which are not true according to him.

16. He is also aggrieved of Recommendation because it seeks to have him personally liable for failing to heed the recommendation of the PIC to seek the Attorney General's opinion before awarding the subject tender which is unjustified.

17. He is further aggrieved with Recommendation because the decision on whether or not to award costs of litigation, and who is to bear the same, is the exclusive jurisdiction of the Court or Tribunal that heard the matter and not of the 1st and 2nd Respondents.

18. He is also aggrieved because the recommendation violates S. 21(1) and (4) Government Proceedings Act Cap 40 Laws of Kenya which protects public officers from personal liability for costs incurred in civil litigation or arbitration.

19. It is his case that Recommendation is irrational, unreasonable and onerous because whereas the PIC Report recommended that he be investigated and, if found criminally culpable, be charged, for entering into contracts with EAA Co Ltd and Auto Terminal Japan Limited.

20. It is his case that the recommendation to investigate him and charge him personally for being in total contempt of the advice of the Attorney General or of PIC (to seek the advice of the Attorney General before awarding the entering into the contracts lacked legal or factual basis.
21. The recommendation to investigate whether there was forgery or whether the tender had proceeded without a procurement plan or a budget contrary to the Penal Code Cap 62 and the Public Finance Management At 2012 respectively, and to charge him accordingly, had been raised in the Request for Review lodged against the tender, PPARB Review Application No. 18 of 2020, which was struck out after the Review Board satisfied itself by setting out the background to the tender and finding out that the tender had been evaluated and awarded in accordance with various provisions of the tender / bid document.

22. It is his case that the mater had thus been settled by a competent Tribunal and the PIC had no authority or mandate to consider or make any such recommendations.

23. He also challenges PICs Recommendation that the 5th Interested Party commences investigations into the tender no. KEBS/T010/2019-2021 and reports back to the 2nd Respondent, the 2nd, 3rd and 4th Interested Parties.

24. He is troubled since, the issues being referred to investigations were raised and determined in PPARB Review Application No. 18 of 2020 and is the subject of the investigations by the Procurement Regulator and of Judicial Review Application No. 88 of 2020 which has suspended the said investigations, and which is pending before the Court.

25. He claims that he is entitled to the secure protection of the law under Article 27(1) Constitution that he would not be held personally liable for acts that he performed in my official capacity under S. 175(6) PPADA, pursuant to the decision of the PPARB, which is binding to date under S. 175(5) PADA, and therefore such recommendations that the 2nd Respondent's PIC made violated his right under Article 27(1) fundamental right protected by the Constitution, and were made ultra vires those provisions, and of S. 21(1) & (4) Government Proceedings Act Cap 40.

26. It is his case that the PIC was unreasonable and irrational in considering the Auditor General's Special Audit Report dated 10th July 2020 outside the Constitutionally mandated 3 months from the date it was tabled before the National Assembly, the 13th November 2019 (as is evident from the Hansard of that date, the 13th November 2019, which is marked as annex hereto as BNN 14) as provided by Article 229(8) Constitution, in considering the subject matter outside the Special Audit Report which violated Article 229(7) Constitution and Standing Orders 197(1) and 206(7)( c) of the National Assembly, in recommending that he be held personally liable for causing the procuring entity, Kenya Bureau of Standards, for entering into contracts with the two successful bidders to tender no. KEBS/TO10/2019-2021, EAA Co Ltd and Auto Terminal Japan Ltd, which decision was outside its mandate as it purported to usurp the powers of the Tribunal or Court which considered, or is considering, the dispute respecting that tender, and which was ultra vires, and in violation of, the express provision of S. 21(1) & (4) Government Proceedings Act Cap 40 which precluded public officers from bearing personal responsibility for costs in civil suits and arbitration, in further recommending that he bears personal responsibility for failing to properly seek the opinion of the Attorney General before entering into a contract with the two firms when that opinion was unneeded as regards the subject tender as the value of the tender was less than Kshs. 5 Billion and did not require the permission of the Attorney General.

27. Recommending investigations into the tender by the 2nd, 3rd, 4th and 5th Interested Parties have no legal justification whatsoever.

28. It is the Applicants’ case that the 2nd Respondent failed to consider the Auditor General’s Special Report within the 3 months’ period provided by the Constitution and thus the 2nd Respondent acted ultra vires.

29. To underscore the importance of time, he relies on the decisions of the Supreme Court in Gatirau Peter Munya v. Dickson Mwenda Kithinji & 3 Others SC Petition No. 2B of 2014; [2014] eKLR, Lemanken Aramat v. Harun Meitamei Lempaka & 2 others SC Petition No. 5 of 2014; [2014] eKLR, Hassan Ali Joho & Another v. Suleiman Said Shahbal and Others, SC Petition No 10 of 2013; [2013] eKLR and Evans Odhiambo Kidero & 4 others v. Ferdinard Ndungu Waititu & 4 others, S.C Pet. No. 20 of 2014; [2014] eKLR .
30. It is further the Applicants case that it is not contested that the Auditor general submitted a Special Report concerning Tender- KEBS/T019/2017- 2020.Article 229 (8) of the Constitution limits the Respondents to consideration of the report in question.
31. Standing Order No. 218 limits Departmental Committees strictly to their mandate- i.e. their terms of reference. Standing Order 197 equally provide that the deliberations of a select committee are limited strictly to their mandate (taken to mean the term/time and the subject).
32. The National Assembly PIC was aware of the nature of the Report they were considering and the Tender in question. This according to him is ascertainable from the Special Audit Report and the PIC Chair’s foreword in both the Progress Report(s) and the PIC (Final) Report dated 10th July 2019,25th February 2020 and June 2020 which are marked as Annexure ‘MS-7’ to the affidavit of Michael Sialai.
33. The National Assembly acted ultra vires in considering matters pertaining to Tender No. KEBS/T019/2020-2021.Reliance is placed in the case of Republic v Cabinet Secretary, Ministry of Agricultures, Livestock & Fisheries; Cabinet Secretary, Ministry of Industry, Trade & Co-operatives (Interested Party) Tanners Association of Kenya (Suing through its Chairman Robert Njoka Ex Parte Applicant [2019] eKLR, where it was held that: “The ultra vires principle is based on the assumption that Judicial Review is legitimated on the ground that the courts are applying the intent of the legislature.
34. Parliament has found it necessary to accord power to ministers, statutory bodies, administrative agencies, local authorities and the like. Such power will always be subject to certain conditions contained in the enabling legislation. The courts’ function is to police the boundaries stipulated by Parliament. The ultra vires principle was used to achieve this end in two related ways. In a narrow sense, it captured the idea that the relevant agency must have the legal capacity to act in relation to the topic in question. In a broader sense, the ultra vires principle has been used as the vehicle through which to impose a number of constraints on the way in which the power given to the agency has been exercised. It must comply with rules of fair procedure, it must exercise its discretion to attain proper and not improper purposes, it must not act unreasonably etc.
The Respondents' case;
35. It is the Respondents case that The Office of the Auditor General conducted a special audit at the Kenya Bureau of Standards (KEBS) with focus on the "the procurement of Pre-Export Verification of Conformity (PVOC) to Standards Service - For used Motor Vehicles, Mobile Equipment and Used Spare Parts by KEBS - Tender Number: KEBS/TO102019-2020" pursuant to Articles 252 1(a), (d) and 229(6) of the Constitution.
36. It is their case that the audit report was submitted to the 2'd Respondent pursuant to Article 95 (4) of the Constitution which gives the National Assembly the power to exercise oversight over national revenue and its expenditure and further Article 229 (7) and (8) of the Constitution which provides,229 (7) Audit reports shall be submitted to Parliament or the relevant county assembly within three months after receiving an audit report, Parliament or the county assembly shall debate and consider the report and take appropriate action.
37. The Office of the Auditor General has the powers to conduct investigations on its own initiative or on a complaint made by a member of the public under Article 252(1) (a) and (d) of the Constitution.
38. Section 38 of the Public Audit Act, 2015, also gives the Auditor General the power to examine the public procurement and asset disposal process of a state organ or a public entity with a view to confirm as to whether procurements were done lawfully and in an effective way.
39. Consequently, the Auditor- General's Special Audit Report (hereinafter 'Special Audit Report) was submitted to Parliament for consideration pursuant to Article 95(4) of the Constitution which gives the National Assembly the power to exercise oversight over national revenue.
40. Article 95 (4) The National Assembly -
(a) Determines the allocation of national revenue between the levels of government, as provided in Part 4 of Chapter Twelve.
(b) Appropriates funds for expenditure by the national government and other State Organs; and
(c) Exercises oversight over national revenue and its expenditure."
41. After tabling the Special Audit Report in the National Assembly, it was referred to the Public Investment Committee (hereinafter "the Committee") of the National Assembly pursuant to Standing Order No. 206 of the National Assembly for consideration. The Standing orders prescribes, there shall be a select committee to be designated the Public Investment Committee.
(2) The Public Investment Committee shall be responsible for the examination of the working of the public investments on the basis of their audited reports and accounts.
(6) The functions of the Public Investment Committee shall be to a) Examine the reports and accounts of public investments;
b) Examine the reports, if any, of the Auditor General on the public investments; and
c) Examine, in context of the autonomy and efficiency of the public investments, whether the affairs of the public investments, are being managed in accordance with sound financial or business principles and prudent commercial practices. "
42. Upon examining the Special Audit Report, the Committee in adhering to the rules of Natural Justice and ensuring that each party that was mentioned in the Special Audit Report was accorded a fair hearing, the 1 Respondent invited the Applicant to respond to all audit reservations raised by the Auditor General in the report.
43. The Chairperson of the Committee tabled before the National Assembly, a progress report on 27th February, 2020 namely; "Progress Report on the consideration of the Special Audit Report on the procurement of Pre-Export verification of conformity to standard services for used Motor Vehicles, Mobile Equipment and Used Spare Parts by Kenya Bureau of Standards" dated 25th February, 2020 for consideration and adoption.
44. On 2 June, 2020, the Chairperson of the Committee tabled before the 2nd Respondent another report namely; "Report on the consideration of the Special Audit Report on the procurement of Pre-Export verification of conformity to standard services for used Motor Vehicles, Mobile Equipment and Used Spare Parts by Kenya Bureau of Standards" for consideration and adoption.
45. The Committee made the following observations with regard to the Applicant;
a) That the Managing Director for KEBS, Lt. Col (Rtd) Bernard Njiraini should be held personally responsible for failing to seek the legal opinion from the Attorney General in time; withholding and/or giving misleading information from the Attorney General when he belatedly sought such opinion contrary to Section 134 of the PPADA, 2015; ignoring the Public Investment Committee's advisory to seek and follow the Attorney General's legal opinion from KEBS' external lawyer dated 20th June 2017 and internal legal team.
b) The Managing Director of KEBS, Lt. Col (Rtd) Bernard Njiraini, should be personally held responsible for any loss that KEBS may make arising from litigations associated with awards of tender No. KEBS/019-2021.
46. Following the said observations, the Committee's recommendations to the House were that;
a) The Managing Director Lt. Col (Rtd) Bernard Njiraini should be surcharged.
b) The EACC, The DPP and DCI should investigate the Managing Director Lt. Col (Rtd) Bernard Niraini with a view of prosecuting him if found culpable.
47. The 'Report on the consideration of the Special Audit Report on the procurement of Pre-Export verification of conformity to standard services for used Motor Vehicles, Mobile Equipment and Used Spare Parts by Kenya Bureau of Standards' was adopted by the House on 13th October,2020 with Amendments.
48. It is the Respondents’ case that, this Court lacks jurisdiction to entertain the instant Application on the ground of the Doctrine of Ripeness and Exhaustion of process and the Doctrine of Judicial Restraint
49. Reliance is placed in the case of the Owners of Motor Vessel lilian "S" v Caltex Oil (Kenya) Ltd 11989] eKLR, Nyarangi JA, as he then was, held that,
"Jurisdiction is everything. Without it, a court has no power to make one more step.... no basis for a continuation of proceedings...... court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. ......
Further that;
"By jurisdiction I mean the authority which a court as to decide matters that are litigated before it or to take cognizance of 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. .............Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing.........
50. They also advance their response by invoking the Doctrine of Ripeness and Exhaustion. They argue that the Applicant filed his application on 14th September, 2020 which was well before the House had adopted the final Report of Public Investment Committee on 13th October, 2020.
51. They argue that this court lacks jurisdiction to entertain this Application, since doing so would amount to interference with the process that was then before the 2nd Respondent.
52. Reliance is placed in the case of Okiya Omtatah Okoiti v Selection Panel for the National Land Commission & 3 others; Gershom Otachi Ew'omanwa & 7 others (Interested Parties) |2019] EkLr, where the Court held as follows:
53. In Communication Commission of Kenya & 5 Others and Royal Media Services & 5 Others (2014) eKLR at paragraph 256, similar issues arose and the Court determined that where there is some other basis upon which the question could have been determined the Court will not determine a constitution question. This was same position arrived at by the Court in Okiya Omtata Okoiti vs National Assembly of Kenya and 4 others Interested Party: Edward Ouko & 5 Others eKLR 2019.
The Court opined that issues raised in the Petition could be raised before the relevant committee of the National Assembly for its consideration before it made its decision.
Having considered the arguments above, it is my finding that this Court will not interfere with the process currently before the Parliamentary Committee because the Petitioner still has a chance to raise issues he is currently raising before that committee. I therefore find that though this Court has jurisdiction to entertain this Petition, by virtue of the doctrine of ripeness and exhaustion of process, I will not delve into the issues as raised at the moment".
It is also their submission that this court should exercise restraint in entertaining the Application that seeks to question proceedings that were squarely carried out within the mandate of the 2nd Respondent.
54. Article 94 of the Constitution provides that, 'the legislative authority of the Republic is derived from the people and, at the national level, is vested in and exercised by Parliament.'
55. It is their case that based on the ideals of separation of powers, Courts have from time and again pronounced that the role of the court is to review but not to interfere with the operations of other arms of Government.
56. In Civil Appeal No. 157 of 2009; John Harun Mwau v Dr. Andrew Mullei & Others, the court of Appeal held that courts ought to refrain from judicial interference in parliamentary proceedings. It held thus;
57. "In our analysis and with the foregoing provisions in mind, one of the primary functions of Parliament is to debate and pass resolutions freely on subjects of its own choosing. This is one of the cornerstones for parliamentary democracy. The performance of this function is secured by the members of Parliament each having the right to say what they will (freedom of speech) and discuss what they will (freedom of debate).
58. These freedoms, the single most important parliamentary privilege are the cornerstone to Sections 4 and 12 of the National Assembly (powers and Privileges) Act, Chapter 6 of the Laws of Kenya. The privilege embodies the concept of parliamentary immunity. In practical terms, the freedom of speech and debates in Parliament ought not to be impeached or questioned in any court or place out of Parliament. Tied to this concept is the doctrine of parliamentary sovereignty and separation of powers which means that the law does not allow judicial review of parliamentary proceedings except in few cases where parliamentary legislation is contrary to the Constitution and rule of law.
59. The Supreme Court in Speaker of the Senate & another v Attorney General & 4 others 120131 EKIR, in addressing the role of the courts in parliamentary proceedings and the need for non-interference, held that;
60. "This Court will not question each and every procedural infraction that may occur in either of the Houses of Parliament. The Court cannot supervise the workings of Parliament. The institutional comity between the three arms of government must not be endangered by the unwarranted intrusions into the workings of one arm by another."
61. In the instant case the Respondents believe that this Honorable Court should restrain itself from interfering with the business of the 2nd Respondent based on the principle of Separation of Powers.
62. Reliance is also placed in the Supreme court dicta in Justus Kariuki Mate & another v Martin Nyaga Wambora & another [2017| eKLR that......the integrity of Court Orders stands to be evaluated in terms of their inner restraint, where the express terms of the Constitution allocate specific mandates and functions to designated agencies of the State. Such restraint, in the context of express mandate allocation under the Constitution, is essential, as a scheme for circumventing conflict and crisis, in the discharge of governmental responsibility. No governmental agency should encumber another to stall the constitutional motions of the other. The best practices from the comparative lesson, signal that the judicial organ must practice the greatest care, in determining the merits of each case.
63. In exercising their mandate, the Respondents are bound by the national values and principles of governance under Article 10 of the Constitution which binds all State organs, State officers, public officers and all persons and the Respondents should be allowed to discharge their mandate.
64. Under Article 252 (1) (a) and (d) of the Constitution, the Office of the Auditor General has the powers to conduct investigations on its own initiative or on a complaint made by a member of the public.
65. Section 38 of the Public Audit Act, 2015 provides that, "the Auditor- General may examine the public procurement and asset disposal process of a state organ or a public entity with a view to confirm as to whether procurements were done lawfully and in an effective way."
66. Reliance is placed in Municipal Council of Mombasa vs. Republic & Umoja Consultants Ltd Civil Appeal No. 185 of 2001, the Court held that:
67. "Judicial review is concerned with the decision-making process, not with the merits of the decision itself: the Court would concern itself with such issues as to whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker considered relevant matters or did consider irrelevant matters... The court should not act as a Court of Appeal over the decider which would involve going into the merits of the decision itself-such as whether there was or there was not sufficient evidence to support the decision."
68. The Respondents urge this Honorable Court to turn down the Applicant's invitation to review the merits of the Committee's decision which is beyond the scope of judicial review process.

69. The Respondents submit that the Applicant was accorded fair treatment by the Committee.

70. Judicial review is concerned not with private rights of the Applicant or the merits of the Committee's final recommendations in its Report adopted by the House but with the decision-making process which in this case is in conformity with the Constitution and other relevant laws.

71. The Respondents submit that the Applicant has not established how the Committee's decision-making process violated his right to natural justice and fair administrative action under Article 47(1) of the Constitution of Kenya 2010 and the Fair Administrative Action Act 2015.Reliance is placed in the principles set out in the case of in Pastoli vs. Kabale District Local Government Council and Others (2008) 2EZ 300 where it was held that,
"In order to succeed in an application for judicial review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety...illegality is when the decision-making authority commits an error of law in the process of taking or making the act, the subject of the complaint. Acting without Jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality...irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards... procedural impropriety is when there is failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statue or legislative instrument by which such authority exercises jurisdiction to make a decision."

72. It is their case that they did not exceed the scope of their public mandate under articles 47 (1) and 95(4) (c) of the Constitution and fair administrative action under Article 47(1) of the Constitution of Kenya 2010 and the Fair Administrative Action Act 2015.

73. In Judicial Service Commission -vs- Speaker of the National Assembly and others Petition No. 518 OF 2013 (UR), the Court rendered itself as follows: -
"...Parliamentary oversight is intended to be people centered: the people must be the beneficiaries or intended beneficiaries of Parliamentary Oversight. Thus, Parliamentary Oversight is not an end in and of itself or a mandate to be exercised in a whimsical or capricious manner.... As an integral process for the enhancement of the rule of law, Parliamentary Oversight is bound within established contours hence must be exercised in accordance with the law."
74. However, the intervention of the Court is limited to a review of the process employed by the Committee and not to delve into the substance or merits of the investigation. The constitutional principle of separation of powers requires that each arm of Government operates independently without undue interference from another arm of Government."

75. In the instant case, it is their case that the questions raised by the Applicant against the Respondents are moot and therefore the application is not justiciable.

76. It is their case that following the approval by the House, the issues have been overtaken by time following the said approval and adoption of the Public Investment Committee report by the National Assembly.

77. Reliance is placed in the case of Samuel Muigai Nganga v The Minister for Justice, National Cohesion & Constitutional Affairs & Another (2013)eKLR Lenaola J considered the meaning of Justiciability and in quoting Lawrence H.Tribe in his book American Constitutional Law, 2ªd Edition,p.92 stated thus-
78. "In order for a claim to be justiciable as an article III, it must present a real and substantial controversy which unequivocally calls for adjudication of the rights asserted. In part, the extent to which there is a'real and substantial controversy is determined under the doctrine of standing' by an examination of the stake of the person making the claim, to ensure the litigant has suffered an actual injury which is fairly traceable to challenged action and likely to be redressed by the judicial relief requested. The substantially of the controversy is also a part of the controversy itself-an aspect of the appropriateness of the issues for judicial decision....and the actual hardship of denying litigants the relief sought. Examination of the contours of the controversy is regarded as necessary to ensure that courts do not overstep their constitutional authority by issuing advisory opinions. The ban on advisory opinion is further articulated and reinforced by judicial consideration of two supplementary doctrines: that of 'ripeness' which requires that the factual claims underlying the litigation be concretely presented and not based on speculative future contingencies and of 'mootness' which reflects the complementary concern of ensuring that the passage of time or succession of events has not destroyed the previously live nature of the controversy. Finally, related to the nature of the controversy is the
'political question' doctrine, barring decision of certain disputes best suited to resolution by other governmental actors."

79. In Daniel Kaminia & 3 others (Suing as Westland Environmental Caretaker Group) v County Government of Nairobi |2019] eKLR the court stated as follows, "applying the above time tested and refined principles of law to the instant case, it is obvious that there remains no unresolved justiciable controversy in the present Judicial Review Application. Courts generally only have subject-matter jurisdiction over live controversies. When a case becomes moot during its pendency, the appropriate first step is a dismissal of the case.
On this ground alone, this case falls for dismissal. I find no need to address the case on merits."

80. They submit that if the orders for judicial review are granted the result will be prejudicial, not only, to good governance and constitutional fair administration but also to the Respondents, particularly the 2nd Respondent having carried out its constitutional mandate in a proper and fair manner.

81. Section 12(2) of the Parliamentary Powers and Privileges Act No. 29 of 2017 which provides as follows:"(2) No civil suit shall be commenced against the Speaker, the leader of majority party, the leader of minority party, chairpersons of committees and members for any act done or ordered by them in the discharge of the functions of their office."

82. It is their case that any person aggrieved by any contents of a report adopted by the Committee had the right in the first instance to appeal against the recommendations, to the House. The Applicant was fully aware of the ongoing proceedings and did not exercise his right of appeal before it was tabled for adoption.

The 2nd interested party submissions;

83. The 2nd Interested Party's Submissions on the Notice of Motion dated 21st October 2020 submit in opposition that the Applicant through a Notice of Motion dated 21' October 2020 has made a Judicial Review Application seeking orders of certiorari and prohibition in regards to portions of the National Assembly's Public Investment Committee's (PIC) report dated 29th May 2020 on the pre export verification of conformity (PVOC) to standard services for used motor vehicle, mobile equipment and used spare parts specifically found at its Chapter five, page 61, 62 and 63 paragraph (iii), (iv a-j) (v) (viii) that recommended that the Applicant be held personally liable for delaying to seek the Attorney General's opinion under Section 134 of the Public Procurement and Asset Disposal Act, 2015 and for withholding and or giving misleading information to the Attorney General when the alleged opinion was sought, for ignoring PIC's opinion that he seeks and follows the Attorney General's legal opinion before awarding tender number KEE/T010/2019-2021 from loss or costs arising from litigation relating to the same tender and further recommendation that the directorate of criminal investigation (DCI), The director of Public Prosecutions (DPP) and the Ethics and Anti-Corruption Commission (EACC) investigates the circumstances under which the Kenya Bureau of Standards (KEBS) through the Applicant entered into contracts with firms that had been recommended in total contempt of the advice of the attorney general and PIC and contrary to the Public Procurement and Asset Disposal Act 2015 on Procurement Process, the Penal Code Cap 63 on Forgery, Public Finance Management Act, 2012 on initiation of a procurement without approved budget and procurement plan amongst others with a view of preferring charges to those found culpable.

The National Police Service draws its authority to investigate from:
Constitution of Kenya, 2010 —Article 245,National Police Services Act 2013- Section 35 provides that the functions of the Directorate shall include inter alia to execute the directions given to the Inspector-General by the Director of Public Prosecutions pursuant to Article 157 (4) of the Constitution;
84. In the exercise of its power of investigation, the DCI are functionally independent and can only take directions to investigate from the ODPP and no other authority. In the case of the DPP's directive, the Constitution requires the directives to be in writing for the Police to give effect. In this case, the Applicant has not presented any written directive to the DCI by any other authority to justify his claim that the investigations have been commenced for a collateral purpose. In the absence of that evidence, the court can only presume that they are purely acting on the discharge of their lawful authority.
85. The law allows the DCI and any other investigative agency to investigate if there's probable cause to do so, the status of the Applicant notwithstanding.

86. Reliance is placed in the case of Dr. Alfred N. Mutua vs The Ethics and Anti-Corruption Commission & Others, Misc. Application No. 31 of 2016, the Learned Judge ruled as follows:
"Is threat of arrest or arrest with reasons given a violation or threatened violation of fundamental rights and freedom? We think not. What the law seeks to prevent is arbitrary arrest without probable cause. An objective justification must be shown to validate arrest of any individual. The Kenyan Constitution recognizes that if a criminal offence is committed, investigation, arrest and prosecution might ensue..."
87. In the case of Republic v The Commissioner of Police & the Director of Public Prosecution Ex parte Michael Monari & Another Misc. Application No. 68 of 2011, Nairobi, in determining whether the ODPP and DCI had abused their statutory and constitutional powers, the Learned Judge stated that:
"....the Police have a duty to investigate on any complaint once a complaint is made. Indeed the police would be failing in their constitutional mandate to detect and prevent crime. The Police only need to establish reasonable suspicion before preferring charges. The rest is left to the trial court. The predominant reason for the institution of the criminal case cannot therefore be said not to have been the vindication of the criminal justice. As long as the prosecution and those charged with the  responsibility of making the decision to charge act in a reasonable manner, the High Court would be reluctant to intervene. It is not the duty of the court to go into the merits and demerits of any intended charges to be preferred against any party  it would be improper for this court to try and/or attempt to determine the intended criminal case which is not

before it. There is no evidence to show that the Respondents exceeded its jurisdiction, breached rules of natural justice or considered extraneous matters or were actuated by malice in undertaking the investigations  against the applicants. The purpose of criminal proceedings is to hear and determine finally whether the accused has engaged in conduct which amounts to an offence and on that account is deserving punishment"
88. Unless the Applicant establishes that the DCI are acting ultra vires to their powers, the court should not unnecessarily inhibit them from investigations.
89. In the case of Cascade Company Limited vs Kenya Association of Music Production (KAMP) & Others, Petition No. 7 OF 2014 High court, Murang'a The court stated as follows-
".... In my view, as long as the enabling legislation is constitutional, the respondent's actions ensuing therefrom are lawful unless, of course, it can be demonstrated that the ODPP and DCI have in their actions, breached those very provisions or have acted ultra vires to the act. Simply put the Respondents should not be inhibited unnecessarily from exercising their constitutional and statutory mandates."

90. Article 157 of the Constitution of Kenya 2010, vests State powers of prosecution upon the Office of the Director of Public Prosecutions. The power is reinstated in pari materia under Section 5 of the Office of Director of Public Prosecutions Act.
91.  In the exercise of this power, the DPP is under the direction or control of any person, body or authority as provided for under Article 157(10) of the Constitution.
92. In Hon. James Ondicho Gesami vs The Attorney General & Others, Petition No. 376 of 2011, Nairobi the Learned Judge stated as follows:
"....The DPP is at liberty to prefer charges against any party in respect of whom he finds sufficient evidence to prefer charges.... In my view, requiring that the petitioner subjects himself to the normal criminal prosecution process mandated by law where he has all the safeguards guaranteed by the Constitution does not in any way amount to an attack on his human dignity in violation of his constitutional rights."
93. The primary test in the making of a prosecutorial decision on the part of the DPP is whether or not the material gathered meets the evidential and public interest threshold. The National Prosecution Policy clearly enunciates this position.
94. In the case of Mohamed Ali Swaleh vs The Director of Public Prosecution & Another- High Court Mombasa Petition No. 2 of 2017 the court held;
"the decision whether or not to institute criminal proceedings is made based on the evidence collected. Once the investigations establish reasonable suspicion that a person committed a crime he ought to be charged in a court of law."
95. The position was set out on the case of the Republic vs Commissioner of Police & Another (2012) eKLR where it was held that;".....the Police only need to establish reasonable suspicion before preferring charges. The rest is left to the trial court."
96. In an avalanche of judicial decisions, courts have held that it is not the court's duty to decide who to be charged and with what offence. If the courts were to do so
they would clearly be intermeddling in matters that are purely within the province of the DPP thus rendering the DPP, a constitutionally docile entity.
97. The emasculation of independent constitutional offices and organs would be dangerous for a country that believes in the Rule of Law and Separation of powers.
98. The court should be shy in accepting invitations by litigants to interfere with the independent exercise of constitutional and statutory authority by state organs except in those cases where such organs and offices are acting ultra vires, outside the confines of reasonableness, procedural fairness, mala fides and in total disregard of the doctrine of proportionality in decision making. In the instant case there is absolutely no reason for the court to bar investigations and prohibit prosecution since none of the foregoing grounds exists to justify such a decision.
99. In the case of Pauline Raget Adhiambo Agot v DPP and 5 Others (2010) Petition No. 446 of 2015 the court stated:
"...it is not for this court to sieve through the evidence and determine whether or not the Petitioner ought to be prosecuted. It would not only be speculative for the court to state that it is wrong to prosecute the Petitioner when the decision is yet to be made but also an usurpation of a role which has been exclusively reserved both by statute as well as by the Constitution for another office in the 1" Respondent." The Learned judge continued as follows:
100. "It must first be stated that the clear intention of the Constitution was to  ensure that the Office of the Director of Public Prosecutions was free of any interference or meddling. No person or body including the court ought to instruct or direct the 1" Respondent on how to conduct its business as to  investigating crime and prosecuting offenders. Indeed, it is the 1st Respondent who is enjoined under Article 157(4) of the Constitution to  direct the National Police Service to investigate any criminal activities.
101. Lodging complaints or reporting incidents of criminal activity does not equate giving directions to the ODPP and DCI or any of them. If it was so to be held then a grievant would never receive justice. The public would never report crime and the ODPP and DCI would also be under no obligation to act."
102. In the case of AG vs AG & 3 Others Ex parte Thomas Ng'ang'a Munene (2014) Petition No. 166 of 2013, the court found as follows:
"..It is not for this Court to stop the DPP in his tracks simply because the Court believes that the DPP ought to have done better. The constitutional discretion given to the DPP ought to be lightly interfered with especially if the evidence in his possession if true may well sustain a prosecution. Trial courts are better placed to consider the evidence and decide whether or not to place an accused on their defense and even after placing the accused on his defense, the Court may well proceed to acquit the accused. Our criminal process also provides for a process of an appeal where the accused is aggrieved by the decision in question. Apart from that there is also an avenue for compensation by way of a claim for malicious prosecution. In other words I am not satisfied based on the material before me that the applicant will not receive a fair trial before the trial court more so as no allegations are made against the 56 Respondent towards that direction. Therefore the mere insufficiency of evidence does not in my  considered view justify the halting of a criminal trial.

103. In these types of proceedings the court ought to be extremely cautious in  its findings so as not to prejudice the intended or pending criminal proceedings. As judicial review proceedings are concerned with the process rather than merits of the challenged decision or proceedings the  court is not entitled to make definitive finding on matters which go to the merits of the impugned proceedings.
104. It is submitted that this is not satisfied that this a proper case which the court ought to bring criminal proceedings to a halt. The applicant will be afforded an opportunity to defend himself, cross-examine witnesses and adduce evidence in support of his case and that in my view is the proper course to take in the circumstances of the case. "
105. In the case of the Republic v Attorney General & 4 Others Ex parte Kenneth Kariuki Githii (2014) eKLR Miscellaneous Application No. 151 of 2013 (LOA No. 14) it was stated that:`the court ought not to usurp the Constitutional mandate of the DPP to investigate and undertake prosecution in the exercise of the discretion  conferred upon that office. “The Learned Judge further stated as follows:
"Judicial review applications do not deal with the merits of the case but only with the process. In other words judicial review only determines whether the decision makers had the jurisdiction, whether the persons  affected by the decision were heard before it was made and whether in  making the decision the decision maker considered relevant  matters or did consider irrelevant matters.

106. It follows that where an applicant brings judicial review proceedings with a view to determining contested matters of facts and in effect urges the court to determine the merits of two or more different versions presented before it, the court would not have jurisdiction in a judicial review proceeding to determine such a matter and will leave the parties to resort to the normal forums where such matters ought to be resolved.
107. In the case of Hon. James Ondicho Gesami vs The Attorney General & Others, Petition No. 376 of 2011, Nairobi, the Learned Judge stated as follows:
"....The DPP is at liberty to prefer charges against any party in respect of whom he finds sufficient evidence to prefer charges.... In my view, requiring that the petitioner subjects himself to the normal criminal prosecution process mandated by law where he has all the safeguards guaranteed by the Constitution does not in any way amount to an attack on his human dignity in violation of his constitutional rights."
108. In the case of Total Kenya Limited & 9 others vs Director of Criminal Investigation Department and 3 others, 2013 the Learned Judge found as follows:
"Although this court has inherent jurisdiction to stop abuse of its process by prohibiting criminal proceedings where the same are found to be  oppressive or otherwise an abuse of its process, such power must be exercised ever so cautiously so as not to stifle what is otherwise the lawful discharge of constitutional mandate by the police service and the DPP. That is why in Kenya Commercial Bank Ltd Case (Supra), I stated that, "....the High Court may stop proceedings where such proceedings, actual or contemplated, are oppressive, vexatious and abuse of the court process and a breach of fundamental rights and freedoms. This power though in the case of Dr. Alfred N. Mutua VS. The Ethics and Anti-Corruption Commission & Others, Misc. Application No. 31 of 2016, the Learned Judge stated that:
"The Kenyan Constitution is replete with the provisions on separation of roles, powers and functions. The Office of the Director of Public Prosecution is an independent office with clear defined functions. In principle, it is not the work of courts to interfere with other state organs unless it can be shown that they violate the Constitution; each state organ must be allowed to function without interference (see also Judicial Service Commission vs. Speaker of the National Assembly & 8 Others, Nairobi HC Petition No. 518 of 2013). It is the duty of this court to protect not only the functional, administrative and operational independence of the Office of the Director of Public Prosecution...."
The Judge further stated that;
"....the raison d'etre for the existence of the Office of the Director of Public Prosecution is prosecution of any and all alleged criminal offence.... If the court is to grant the conservatory orders sought by the applicant, the court would be imposing a restriction on the constitutional powers of the Office of the Director of Public Prosecution and thus violating Article 157(10) of the Constitution. Under Article 157 (1), the DPP does not require the consent of the Court to undertake any investigation or prosecution of an individual."

The 3rd interested party's case;
109. The 3rd Interested party, the Ethics and Anti-Corruption Commission (EACC), is an independent Commission established pursuant to Article 79 of the Constitution and section 3 of the Ethics and Anti-Corruption Commission Act with the status and powers of a commission under Chapter Fifteen of the Constitution for the purposes of ensuring compliance with, and enforcement of, the provisions of Chapter Six of the Constitution.
110. Reliance is placed in the case of Mape Building & General Engineering vs. The Attorney General & 3 Others  (2016) eKLR where the Court laid out the sacred duty of investigative agencies and the limitless bounds of investigations save for non-infringement of fundamental human rights. The Court stated: "My understanding and finding is that the 2nd Respondent was under a constitutional obligation to investigate the alleged criminal activities and conduct on the part of the Interested Party. It ought to be acknowledged that investigation into criminal activities have no detailed limitations or boundaries. It may take the investigator to possible accomplices. It may also take the investigator to prospective witnesses.
111. The  Constitution at Article 245 (4) outlaws any purported directions to the police service as far as investigations into any crime is concerned". The Court went further to state that: "it would be important to point out that where investigations and prosecutions of suspected criminals are involved, the wider public interest that criminals are brought to book through a fair process that does not bring the criminal justice process into disrepute must always be weighed against any individual's interest and right. Where violation of the latter is proved then the balance may actually tilt in favour of the individual. In the instant case the public interest weighs heavily against the private rights, especially to property.
112. The EACC's mandate in investigations require it to conduct such investigations on its own initiative or upon receipt of a complaint pursuant to section 252(1)(a) and section 13(2)(c) of the EACC Act.EACC is further duty bound to investigate all complaints it receives and it has a duty to protect all informers. The EACC also has a mandate to investigate for purposes of forfeiture all unexplained assets within the meaning of the provisions of the Anti-Corruption & Economic Crimes Act (ACECA).
113. Section 23 of the Anti-Corruption and Economic Crimes Act (ACECA) clearly spells out the mandate of the ad Interested Party's investigators to wit:
Section 23 Anti-Corruption & Economic Crimes Act: Investigators
(1 ) The Secretary or a person authorized by the Secretary may conduct
an investigation on behalf of the Commission.
Except as otherwise provided by this Part, the powers conferred on the Commission by this Part may be exercised, for the purposes of an investigation, by the Secretary or an investigator.
For the purposes of an investigation, the Secretary and an investigator shall have the powers, privileges and immunities of a police officer in addition to any other powers the Secretary or investigator has under this Part.
(4)The provisions of the Criminal Procedure Code (Cap. 75), the
Evidence Act (Cap. 80), the Police Act (Cap. 84) and any other law conferring on the police the powers, privileges and immunities necessary for the detection, prevention and investigation of offences relating to corruption and economic crime shall, so far as they are not inconsistent with the provisions of this Act or any other law, apply to the Secretary and an investigator as if reference in those provisions to a police officer included reference to the Secretary or an investigator.
114. It is clear from the above mandates that the investigation of complex criminal conduct involving corruption and economic crimes is the raison d'etre of the EACC. Such complex often white-collar crimes such as corruption cannot be unraveled by relying only on information and material from one source regardless of the dependability of any such sources.
115. Its constitutional and legislative independence allows relies on numerous sources in undertaking its investigations such as any that may arise in respect of the National Assembly's Public Investment Committees Report dated 29th May 2020 on the Pre-Export Verification of Conformity (PVOC) to standard services for used motor vehicles, mobile equipment and used spare parts.
116. All investigations carried out by the 3rd Interested party are done so in good faith and without an ulterior or malicious motive. In any event, any evidence obtained pursuant to an investigation shall be subjected to a court of competent jurisdiction. Reliance is placed in the Court's decision in ABC Mettarlargiucs Limited v. Republic (2013) eKLR where Warsame J in refusing to set aside warrants stated that, "The point I am making is that if at the end of the day it is discovered that the evidence or investigations carried out by the commission is unfair, the court would come to the aid of the applicant. However, at this stage there is no evidence before me that the Commission has used or is about to use oppressive or unfair tactics against the applicant. The predominant element in an investigation is to obtain evidence and information that would lead to a proper conviction. In cases where it is shown that the information obtained was without proper foundation or that it was oppressive or that it was obtained through unfair investigation or that it would compromise the fairness of a trial, then the court's duty is to uphold fairness and justice between the parties. We have not reached that stage for me to determine that certain information or evidence was obtained oppressively and unfairly. And in my humble view, an information or evidence obtained from a bank account of an individual who is reasonably suspected to have committed or is about to commit an offence, can only be determined when and at the stage, where that evidence is being used or is about to be used against the aggrieved party. The fairness of the contest as a result of the information obtained exparte and to the exclusion of aggrieved party can only be determined when the issue is placed before court for determination.
117. In the matter of Republic v Ethics and Anti-Corruption Commission Ex parte
Nairobi City County Assembly & 13 others [2019] eKLR held that:
`A court of review is concerned only with the lawfulness of the process by which the decision was arrived at, and can set it aside only if that process was flawed in certain defined and limited respects. The role of the Court in Judicial Review is supervisory. It is not an appeal and should not attempt to adopt the 'forbidden appellate approach'. The role of the court in Judicial Review is supervisory. Judicial Review is the review by a judge of the High Court of a decision; proposed decision; or refusal to exercise a power of decision to determine whether that decision or action is unauthorized or invalid. It is referred to as supervisory jurisdiction - reflecting the role of the courts to supervise the exercise of power by those who hold it to ensure that it has been lawfully exercised. As long as the processes followed by the decision-maker are proper, and the decision is within the confines of the law, a court will not interfere. Broadly, in order to succeed in a Judicial Review proceeding, the applicant will need to show either:-
(a) the person or body is under a legal duty to act or make a decision in certain way and is unlawfully refusing or failing to do so: or (b)a decision or action that has been taken is 'beyond the powers' (in latin, 'ultra vires') of the person or body responsible for it. In Republic v Ethics and Anti-Corruption Commission Ex parte Nairobi City County Assembly (Supra) held that as long as the processes followed by the decision-maker are proper, and the decision is within the confines of the law, a court will not interfere.
118. It invites the honorable Court in making its decision to borrow from the decision of the Court in Republic v Ethics and Anti-Corruption Commission Ex parte Nairobi City County Assembly (Supra) where it held "this court is inclined to respect the EACC's action for four reasons, (a) it is a constitutional imperative that the constitutional role of EA CC must be respected, (b) for the court to intervene, there must be clear evidence of breach of its constitutional duty to act fairly and legally on the part of EA CC or dear abuse or misuse of discretion, (c) that this court has a constitutional obligation and a duty to foster a culture of integrity in public service by requiring State officers to exhibit high standards of ethical conduct both in public and private, (d) the Constitution provides in peremptory terms that every person has an obligation to respect, uphold and defend the Constitution".
119. The Court went on to hold that Judicial Review remedies are meant to afford the prejudiced party administrative justice, to advance efficient and effective public administration compelled by constitutional precepts and at a broader level, to entrench the Rule of Law. The task for the courts in evaluating whether a decision is illegal is essentially one of construing the content and scope of the instrument conferring the duty or power upon the decision-maker. The instrument will normally be the Constitution, a statute or delegated legislation. The courts when exercising this power of construction are enforcing the Rule of Law, by requiring public bodies to act within the "four corners" of their powers or duties. They are also acting as guardians of Parliament's will, seeking to ensure that the exercise of power is in accordance with the scope and purpose of Parliament's enactments. The Courts have a duty to ensure citizens respect and observe the Constitution. In my view, failure or refusal by the court to exercise this duty would be treason to the Constitution".
120. Reliance is placed in Republic v Ethics and Anti-Corruption Commission Ex parte Nairobi City County Assembly (Supra) where it held "this court is inclined to respect the EACC's action for four reasons, (a) it is a constitutional imperative that the constitutional role of EA CC must be respected, (b) for the court to intervene, there must be clear evidence of breach of its constitutional duty to act fairly and legally on the part of EA CC or dear abuse or misuse of discretion, (c) that this court has a constitutional obligation and a duty to foster a culture of integrity in public service by requiring State officers to exhibit high standards of ethical conduct both in public and private, (d) the Constitution provides in peremptory terms that every person has an obligation to respect, uphold and defend the Constitution".
121. The Court went on to hold that Judicial Review remedies are meant to afford the prejudiced party administrative justice, to advance efficient and effective public administration compelled by constitutional precepts and at a broader level, to entrench the Rule of Law. The task for the courts in evaluating whether a decision is illegal is essentially one of construing the content and scope of the instrument conferring the duty or power upon the decision-maker. The instrument will normally be the Constitution, a statute or delegated legislation. The courts when exercising this power of construction are enforcing the Rule of Law, by requiring public bodies to act within the "four corners" of their powers or duties. They are also acting as guardians of Parliament's will, seeking to ensure that the exercise of power is in accordance with the scope and purpose of Parliament's enactments. The Courts have a duty to ensure citizens respect and observe the Constitution. In my view, failure or refusal by the court to exercise this duty would be treason to the Constitution".
122. It submits that the Ex-Parte Applicant's individual rights do not override public good and public interest in a just and democratic society and therefore the 3rd Interested party should not be impeded in executing its constitutional and legislative mandates and the Ex-Parte Applicant is therefore not entitled to the judicial review orders it has sought before this honorable Court.


Analysis and determination:

123. Upon considering the application, the responses and rival submissions, the issue that call for determination are as follows:
A. Can this court carry out a merit analysis?
B. Can order of Certiorari issue.
C. Does the doctrine of mootness apply to this suit?
D. Has the Applicant made out a case for the grant of the order of prohibition?
E. Is the Applicant entitled to costs?

Can this court carry out a merit analysis;
124. The Applicant has invited the court to delve into evidence and carry out a merit analysis. The Respondents have followed the same pattern.
125. The Supreme Court in Petition No. 6(E007) of 2022 Edwin Dande & Others v The Inspector General, National Police Service & Others it held that…
(b) Judicial review was entrenched in the Constitution of 2010 to a substantive and justiciable right under Article 47 [see paragraph 78-page 301. The court concluded in paragraph 85 [see page 33]and held as follows:
'It is clear from the above decisions that when a party approaches a court under the provisions of the Constitution then the court ought to carry out a merit review of the case. However, if a party files a suit under the provisions of Order 53 of the Civil Procedure Rules and does not claim any violation of rights or even violation of the Constitution, then the Court can only limit itself to the process and manner in which the decision complained of was reached or action is taken and following our decision in SGS Kenya Ltd and not the merits of the decision per se.
126. This court is aligned to the fact that the scope of judicial review has now expanded beyond the common law principles and the Law Reform Act and Order 53 of the Civil Procedure Rules but it has now been entrenched under Article 23 of the Constitution as well as the Fair Administrative Actions Act.
127. A party who invites the court to determine whether or not a right has been violated and or been infringed has to go beyond the mere mention of the Articles of the Constitution or the Sections of the Law they are relying on.
128. In order to invoke the judicial review powers to do a substantive or a merit analysis of its case, the Applicant must demonstrate how their right was threatened or violated with precision so as to enable the Respondents to counter the allegation within Article 24 of the Constitution of Kenya.
129. Just like in other cases, the burden of proof rests on he who alleges that there is a violation within the standards of the constitutional rights litigation within Section 107 of The Evidence Act.
130. The litigant must articulate and canvass its case in such a manner that will allow the court to determine the violation question with a view to arriving at an informed decision that the litigant has suffered harm, prejudice, or damage.
131. An Applicant who is inviting or expecting the court to carry out a merit analysis must drive the court towards granting relief by way of compensation within Section 11 of the Fair Administrative Action Act. The merit analysis must not be done in vain. Such an applicant must demonstrate through evidence that the  Respondents violated the concerned rights.
132. Iam in agreement with The Respondents to the extent that this Court should turn down the Applicant's invitation to review the merits of the Committee's decision which is beyond the scope of judicial review process.
133. I find that the ex parte applicant has not fulfilled nor met the foregoing minimum standards that would call for a merit analysis and I so hold.
Can order of Certiorari issue;
134. Article 229 of The Constitution provides that (5) The Auditor-General may audit and report on the accounts of any entity that is funded from public funds.
a) (6) An audit report shall confirm whether or not public money has been applied lawfully and in an effective way.
b) (7) Audit reports shall be submitted to Parliament or the relevant county assembly.
c) (8) Within three months after receiving an audit report, Parliament or the county assembly shall debate and consider the report and take appropriate action.
135. In the case of Pastoli vs KabaleDistrict Local Government Council & Others, (2008) 2 EA 300,it was held that:
a) “In order to succeed in an application for Judicial Review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety: See Council of Civil Service Union v Minister for the Civil Service [1985] AC 2; and also Francis Bahikirwe Muntu and others v Kyambogo University, High Court, Kampala, Miscellaneous Application Number 643 of 2005 (UR).
b) Illegality is when the decision-making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without Jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality….
c) Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision.  Such a decision is usually in defiance of logic and acceptable moral standards: Re An Application by BukobaGymkhana Club [1963] EA 478 at page 479 paragraph “E”.
d) Procedural impropriety is when there is failure to act fairly on the part of the decision making authority in the process of taking a decision.  The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision.  It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision. (Al-Mehdawi v Secretary of State for the Home Department [1990] AC 876).”
136. Section 4 The Fair Administrative Action Act,2015 provides thus;“Administrative action to be taken expeditiously, efficiently, lawfully etc.
(1) Every person has the right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair.
137. Section 4(6) provides thus; 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.
138. Article 229 of the Constitution sets out a very elaborate and well thought out procedural mechanism that must be adhered to for the purposes of auditing public funds. It sets out the mandatory timeline within which an audit is supposed to be completed. It lays out the procedure and the steps that the audit report must follow in parliament before being Accepted as a final report.

139. The question that this court must answer is whether or not the Respondents complied with Article 229 of the Constitution. Failing to comply with Article 229 of the Constitution amounts to an illegality which must not stand.
140. In the instant suit, the Respondents have not brought out evidence to show that a different statutory procedure exists other than what is provided for under Article 229 of The Constitution.
141. The Respondents admit that, the 'Report on the consideration of the Special Audit Report on the procurement of Pre-Export verification of conformity to standard services for used Motor Vehicles, Mobile Equipment and Used Spare Parts by Kenya Bureau of Standards' was adopted by the House on 13th October,2020 with Amendments.
142. The Auditor General had audited a previous tender that had been floated by the Kenya Bureau of Standards, tender number KEBS/T019/2017-2020 on the Pre-Export Verification of Conformity (PVoC) to Standard Services for Used Motor Vehicles, Mobile Equipment and Used Spare Parts, before the he joined the institution as its Managing Director, in which a contract had been entered with another service-provider, which was being performed and compiled the Special Audit Report dated 10th July 2019 in which there was no recommendation against the Applicant of whatever nature, or of the then Managing Director of the Kenya Bureau of Standards.

143. The Auditor General then presented its Audit Report above before the 2nd Respondent under Article 229(7) Constitution, which was to be considered and acted upon by the 2nd Respondent within 3 months as provided for under Article 229(8) Constitution.

144. The 2nd Respondent's Public Investment Committee (PIC) had its first sitting in deliberating the Special Audit Report above on 13th February 2020 after the lapse of the Constitutionally mandated period. This was outside the constitutionally mandated time.

145. The PIC acted illegally in considering the Auditor General's Special Audit Report dated 10th July 2020 outside the Constitutionally mandated 3 months from the date it was tabled before the National Assembly, the 13th November 2019 as is evident from the Hansard of that date, the 13th November 2019, as provided by Article 229(8) Constitution, in considering the subject matter outside the Special Audit Report which violated Article 229(7) Constitution and Standing Orders 197(1) and 206(7)( c) of the National Assembly.

146. Based on the foregoing this court makes the finding that the Respondents did not comply with Article 229 of the Constitution.
Does the doctrine of mootness apply to this suit?
147. According to the Respondents, this suit is moot and the same is not justiciable. In the case of Daniel Kaminja & 3 others (Suing as Westland Environmental Caretaker Group) v County Government of Nairobi [2019] eKLR “A matter is moot if further legal proceedings with regard to it can have no effect, or events have placed it beyond the reach of the law.
148. Thereby the matter has been deprived of practical significance or rendered purely academic.
149. On the Doctrine of Ripeness and Exhaustion of process the Respondents argue that the Applicant filed his application on 14th September, 2020 which was before the House had adopted the final Report of Public Investment Committee on 13th October, 2020.
150. It is their case that the questions raised by the Applicant against the Respondents are moot and therefore the application is not justiciable.

151. It is also the Respondents case that following the approval by the House, the issues have been overtaken by time following the said approval and adoption of the Public Investment Committee report by the National Assembly.
152. The respondents argue that this court lacks jurisdiction to entertain this Application, since doing so would amount to interference with the process that was then before the 2nd Respondent.
153. The Respondents argue that any person aggrieved by any contents of a report adopted by the Committee had the right in the first instance to appeal against the recommendations, to the House and in any event, the Applicant was fully aware of the ongoing proceedings and did not exercise his right of appeal before it was tabled for adoption.

154. It is this court’s finding that the Respondents are blowing hot and cold air. They did not respond to the Applicants argument that he had Petitioned the 1st Respondent on the 5th August 2020 through a Petition dated 3rd August 2020 under the 2nd Respondent's Standing Order 220(1) seeking to stop the adoption of the portions of the PIC Report. His Petition was not acted upon by The Respondents in violation of his right to natural justice and the Respondents cannot be heard to argue nor mislead the court that the Applicant did not seek redress before the report was adopted and I so hold.

155. Mootness arises when there is no longer an actual controversy between the parties in a court case, and any ruling by the court would have no actual, practical impact.
156. It is trite that as a general principle, the rights and liabilities of parties to any judicial proceedings pending before court are determined in accordance with the law as it was at the time when the suit was instituted and by applying the facts to the law and circumstances.
157. Time and again, it has been expressed that a court should not act in vain. No court of law will knowingly act in vain.
158. The general attitude of courts of law is that they are loathe in making pronouncements on academic or hypothetical issues as it does not serve any useful purpose. A suit is academic where it is merely theoretical, makes empty sound and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it is not related to practical situations of human nature and humanity.
159. A case or an issue is considered moot and academic when it ceases to present a justiciable controversy by virtue of supervening events, so that an adjudication of the case or a declaration on the issue would be of no practical value or use.
160. In such instance, there is no actual substantial relief which a petitioner or applicant would be entitled to, and which would be negated by the dismissal of the case.
161. Courts generally decline jurisdiction over such cases or dismiss them on grounds of mootness, save when, among others, a compelling constitutional issue raised requires the formulation of controlling principles to guide the bench, the bar and the public; or when the case is capable of repetition yet evading judicial review.
162. The legal doctrine known as 'mootness' is well-developed in Constitutional law jurisprudence. Accordingly, a case is a moot one if it “...seeks to get a judgment on a pretended controversy, when in reality there is none, or a decision in advance about a right before it has actually been asserted and contested, or a judgment upon some matter which, when rendered, for any reason, cannot have any practical effect upon a then existing controversy.”
163. Furthermore, a case will be moot “…if the parties are not adverse, if the controversy is hypothetical, or if the judgment of the court for some other reason cannot operate to grant any actual relief, and the court is without power to grant a decision.”
The doctrine of separation of powers;
164. This court respects the doctrine of separation of powers which must at all times be upheld. The National Assembly has the authority and mandate under the Constitution as donated by the people to legislate and this court must not interfere with the said mandate. However it would be remiss of the court to turn a blind eye on illegalities that are committed by a state organ like the 1st and the 2nd Respondent.
165. In Republic v National Assembly Committee of Privileges & 2 others Ex-Parte Ababu Namwamba [2016/ eKLR the Court held that: The placing of a matter before the Committee is a weighty decision. Such a decision can only be arrived at by the Speaker after concluding that the Standing Orders will not sufficiently address the situation that has arisen. The PAC had been paralyzed and rendered dysfunctional by the accusations and counter-accusations by its members. The National Assembly had the responsibility of taking action and this court would be crossing its boundaries were it to direct the National Assembly on the manner it ought to have handled the matter."
166. The Supreme Court of Kenya decision in Speaker of the Senate & another v Attorney-General & 4 Others [2013] eKLR held as follows with regard to the circumstances that necessitate the intervention of the Court in matters of Parliament: “It is clear to us that it would be illogical to contend that as the Standing Orders are recognized March 2006 were  by the Constitution, this Court, which has the mandate to authoritatively interpret the Constitution itself, is precluded from considering their constitutionality merely because the Standing Orders are an element in the “internal procedures” of Parliament. We would state, as a legal and constitutional principle, that Courts have the competence to pronounce on the compliance of a legislative body, with the processes prescribed for the passing of legislation. [56] Such a perception is vindicated in comparative experience. The Supreme Court of Zimbabwe, in Biti & Another v. Minister of Justice, Legal and Parliamentary Affairs and Another (46/02) (2002) ZWSC10, was called upon to determine the constitutional validity of the General Laws Act, 2002 (Act No. 2 of 2002). It had been claimed that the passing of the said statute was characterized by irregularities that constituted a breach of the Standing Orders as well as the Constitution of Zimbabwe and that, consequently, the statute was unconstitutional. The Court thus held: “In a constitutional democracy it is the Courts, not Parliament, that determine the lawfulness of actions of bodies, including Parliament....In Smith v. Mutasa it was specifically held that the Judiciary is the guardian of the Constitution and the rights of citizens....”
[57] The position is not different in the case of Canada, as emerges from Amax Potash Ltd. v. Government of Saskatchewan [1977] 2 S.C.R. 576 [at p.590]: “A state, it is said, is sovereign and it is not for the Courts to pass upon the policy or wisdom of legislative will. As a broad statement of principle that is undoubtedly correct, but the general principle must yield to the requisites of the constitution in a federal state. By it the bounds of sovereignty are defined and supremacy circumscribed. The Courts will not question the wisdom of enactments which, by the terms of the Canadian Constitution are within the competence of the Legislatures, but it is the high duty of this Court to insure that the Legislatures do not transgress the limits of their constitutional mandate and engage in the illegal exercise of power.” ................................. If then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislatures, the Constitution, and not such ordinary act, must govern the case to which they both apply.” (emphasis ours)
62. In support of their case the Respondents relied on Articles 165 (3) (b) and 165 (3) (d) (ii) of the Constitution as well as the United States case of Marbury vs Madison, 5 U.S 137 (1803), where the Supreme Court of the United States held: “If, then, the courts are to regard the constitution, and the constitution as superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they may both apply.” 63. Further, they cited HC Petition No. 227 of 2013 Okiya Omtatah Okoiti & 3 Others vs. Attorney General & 5 Others [2014] eKLR in which the High Court held: “ It is this Court which is, by virtue of Article 165(d), clothed with jurisdiction to hear any question concerning the interpretation of the Constitution including the determination of: “(i) the question whether any law is inconsistent with or in contravention of this Constitution (ii) the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;”
54. This is the mandate we will bear in mind as we seek to find answers to the issues raised in this petition. In passing the Constitution, Kenyans gave the responsibility of making laws to Parliament. The decision of the people must be respected, so that this Court can only interfere with the work of Parliament in situations where Parliament acts in a manner that defies logic and violates the Constitution.
64. Based on the foregoing provisions of the Constitution and decisions from the Supreme Court of Kenya and the United States, it was submitted that it is apparent that in order for this Honourable Court to invoke its jurisdiction to inquire into acts of the National Assembly pursuant to its powers and obligations under Chapter Eight of the Constitution, the Applicant must establish that there is a violation or threatened violation of the Constitution and as can be seen from the foregoing, the Applicant has not demonstrated to this Honourable Court, that there has been a violation of the Constitution.
167. It is my finding and I so hold that this court has powers under Article 165 to protect promote and fulfill the applicant’s rights under Article 3 and 20 of the Constitution. The Applicant is entitled to the equal benefit of the Law under Article 27 of the Constitution which this court has a duty to promote.
168. Having decided that the Respondents acted illegally, this Court makes a finding that the instant case is not moot. It would offend the rule of law under Article 10 of The Constitution if the court allows the implementation impugned recommendations that the Applicant be held personally liable for delaying to seek the Attorney General's opinion under S. 134 Public Procurement & Asset Disposal Act 2015 and for withholding or giving mis-leading information to the Attorney General when the alleged opinion was sought, for ignoring PICs' opinion that he seeks and follows the Attorney General's legal opinion before awarding tender no. KEBS/T010/2019-2021, for loss or costs arising from litigation relating to the same tender, and further recommending that the Directorate of Criminal Investigations (DCI), the Director of Public Prosecutions (DPP) and the Ethics &Anti-Corruption Commission (EACC) investigates the circumstances under which the Kenya Bureau of Standards (KEBS), through the Applicant, entered into contract with firms that had been recommended for debarment, in total contempt of the advice of the Attorney General and the advice of PIC, and contrary to the Public Procurement & Asset Disposal Act 2015 on procurement process, the Penal Code Cap 63 on forgery, Public Finance Management Act of 2012 on initiation of a procurement without approved budget and procurement plan among others with a view to preferring charges to those found culpable.
Has the Applicant made out a case for the grant of the order of prohibition
169. The impugned recommendations are pending implementation by the 1st to the 5th of interested parties as result of which this court has the power to issue an order of prohibition.

170. It is my finding that The Applicant has made out a case for the grant of the order of prohibition as sought in the Application and I so hold.

171. In so finding Iam guided by the case of Republic v Principal Kadhi, Mombasa Ex-parties Alibhai Adamali Dar & 2 others; Murtaza Turabali Patel (Interested Party) [20221 eKLR, where the Court rendered itself thus:
a) "The Order of "Prohibition" issues where there are assumptions of unlawful jurisdiction or excess of jurisdiction. It's an order from the High Court directed to an inferior tribunal or body as in this case the Kadhi’s Court. Its functions is to prohibit and/or forbids encroachment into jurisdiction and further to prevent the implementation of orders issued when there is lack of jurisdiction."
b) "Although prohibition was originally used to prevent tribunals from meddling with cases over which they had no jurisdiction, it was equally effective and equally often used, to prohibit the execution of some decision already taken but ultra vires. So long as the tribunal or administrative authority still had power to exercise as a consequence of the wrongful decision, the exercise of that power could be restrained by prohibition. Certiorari and prohibition frequently go hand in hand, as where certiorari is sought to quash the decision and prohibition to restrain its execution. But either remedy may be sought by itself."
172. In the case of Kenya National Examination Council versus Republic ex parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR, the Court stated the grounds upon which such an order may issue as follows;
a) “What does an order of prohibition do and when will it issue" It is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only for excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It does not, however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings – See HALSBURY&39; S LAW OF ENGLAND, 4th Edition, and Vol.1 at pg. 37 paragraphs 128”.
173. This court is further guided by the case of Republic v Director of Public Prosecutions & 3 others Ex-Parte Bedan Mwangi Nduati & another [2015] eKLR wherein it was held as follows;
174. In Kuria & 3 Others vs. Attorney General [2002] 2 KLR 69, the High Court held:“The Court has power and indeed the duty to prohibit the continuation of the criminal prosecution if extraneous matters divorced from the goals of justice guide their instigation. It is a duty of the court to ensure that its process does not degenerate into tools for personal score-settling or vilification on issues not pertaining to that which the system was even formed to perform...A stay (by an order of prohibition) should be granted where compelling an accused to stand trial would violate the fundamental principles of justice which underlie the society’s senses of fair play and decency and/or where the proceedings are oppressive or vexatious...The machinery of criminal justice is not to be allowed to become a pawn in personal civil feuds and individual vendetta. It is through this mandate of the court to guard its process from being abused or misused or manipulated for ulterior motives that the power of judicial review is invariably invoked so as to zealously guard its (the Court’s) independence and impartiality (as per section 77(1) of the Kenya Constitution in relation to criminal proceedings and section 79(9) for the civil process). The invocation of the law, whichever party in unsuitable circumstances or for the wrong ends must be stopped, as in these instances, the goals for their utilization is far that which the courts indeed the entire system is constitutionally mandated to administer...It would be a travesty to justice, a sad day for justice should the procedures or the processes of court be allowed to be manipulated, abused and/or misused, all in the name that the court simply has no say in the matter because the decision to so utilize the procedures has already been made. It has never been be argued that because a decision has already been made to charge the accused persons, the court should simply as it were fold its arms and stare at the squabbling litigants/ disputants parade themselves before every dispute resolution framework one after another at every available opportunity until the determination of the one of them because there is nothing, in terms of decisions to prohibit...The intrusion of judicial review remedies in criminal proceedings would have the effect of requiring a much broader approach, than envisaged in civil law...In this instance, where the prosecution is an abuse of the process of court, as is alleged in this case, there is no greater duty for the court than to ensure that it maintains its integrity of the system of administration of justice and ensure that justice is not only done but is seen to be done by staying and/or prohibiting prosecutions brought to bear for ulterior and extraneous considerations. It has to be understood that the pursuit of justice is the duty of the court as well as its processes and therefore the use of court procedures for other purposes amounts to abuse of its procedures, which is diametrically opposite the duty of the court. It therefore matters not whether the decision has been made or not, what matters is the objective for which the court procedures are being utilized. Because the nature of the judicial proceedings are concerned with the manner and not the merits of any decision-making process, which process affects the rights of citizens, it is apt for circumstances such as this where the prosecution and/or continued prosecution besmirches the judicial process with irregularities and ulterior motives. Where such a point is reached that the process is an abuse, it matters not whether it has commenced or whether there was acquiescence by all the parties. The duty of the court in such instances is to purge itself of such proceedings. Thus, where the court cannot order that the prosecution be not commenced, because already it has, it can still order that the continued implementation of that decision be stayed...There is nothing which can stop the Court from prohibiting further hearings and/or prosecution of a criminal case, where the decision to charge and/or admit the charges as they were have already been made...”.
Is the Applicant entitled to costs?
175. The Applicant is entitled to costs in this case. In arriving at this finding, this court is guided by the case of Jabir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others Petition No. 4 of 2012 [2014] the Court reiterated that costs follow the event.

Disposition:
176. The Respondents acted illegally and in contravention of Article 229 of the Constitution to the extent that Article 229 (8) of The Constitution provides that “Within three months after receiving an audit report, Parliament or the county assembly shall debate and consider the report and take appropriate action.”
Order:
1.An order of certiorari is hereby issued bringing to this court quashing portions of the 2nd Respondents Public Investment Committee’s (PIC) Report dated 29th May 2020 on the Pre-Export Verification of Conformity (PVoC) to Standard Services for Used Motor Vehicles, Mobile Equipment and Used Spare Parts specifically found at its Chapter 5, pages 61, 62 and 63, paragraphs (iii), (iv{a-j}),(v) & (vii) that recommended that the Applicant be held personally liable for delaying to seek the Attorney General’s opinion under S.134 Public Procurement & Asset Disposal 2 and for withholding or giving misleading information to the Attorney General when the alleged opinion was sought, for ignoring PIC’s opinion that he seeks and follows the Attorney General’s legal opinion before awarding tender no. KEBS/T010/2019-2021, for loss or costs arising from litigation relating to the same tender.

2.An order of Prohibition is hereby issued stopping the Respondents from implementing the report of the Public Investment Committee dated 29th May 2020 on the Pre-Export Verification of Conformity (PVoC) to Standard Services for Used Motor Vehicles, Mobile Equipment and Used Spare Parts specifically found at its Chapter 5, pages 61, 62 and 63, paragraphs (iii), (iv{a-j}),(v) & (vii) that recommended that the Applicant be held personally liable for delaying to seek the Attorney General’s opinion under S.134 Public Procurement & Asset Disposal Act 2015 and for withholding or giving misleading information to the Attorney General when the alleged opinion was sought, for ignoring PIC’s opinion that he seeks and follows the Attorney General’s legal opinion before awarding tender no. KEBS/T010/2019-2021, for loss or costs arising from litigation relating to the same tender.

3.Costs to the Applicant.