REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW DIVISION
JUDICIAL REVIEW APPLICATION NO. E003 OF 2026
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW ORDERS OFCERTIORARI & PROHIBITION
AND
IN THE MATTER OF THE PUBLIC PROCUREMENT AND ASSET DISPOSAL ACT, 2015
AND
IN THE MATTER OF THE PUBLIC PROCUREMENT AND ASSET DISPOSAL REGULATIONS, 2020
AND
IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTION ACT, 2015
AND
IN THE MATTER OF ARTICLES 47, 50 AND 165(6) & (7) OF THE CONSTITUTION OF
KENYA, 2010
AND
IN THE MATTER OF A DECISION BY THE PUBLIC PROCUREMENT REGULATORY
AUTHORITY DEBARMENT COMMITTEE
AND
IN THE MATTER OF PUBLIC PROCUREMENT REGULATORY BOARD DEBARMENT APPLICATION NO. 9 OF 2025
BETWEEN
REPUBLIC .................................................................................. APPLICANT
VERSUS
PUBLIC PROCUREMENT REGULATORY AUTHORITY............................................................................RESPONDENT
AND
DR. CHARLES NZAI………………..………………INTERESTED PARTY
AND
BLUE QUADRANT LIMITED ………………… EX PARTE APPLICANT
JUDGMENT
1. Vide Notice of motion dated 6 th January, 2026 filed pursuant to leave granted on 6 th January 2026 in JR Miscellaneous Application No. E169 of 2025, the exparte applicant, Blue Quadrant Limited seeks the following judicial Review Orders:
1. AN ORDER OF CERTIORARI- To remove into this Honourable Court and quash the decision of the Respondent contained in the Notice of Intended Debarment dated 18th December 2025 in Debarment Application No. 9 of 2025, and all consequential steps taken thereunder.
2. AN ORDER OF PROHIBITION- To prohibit the Respondent, whether by itself, its members, officers, servants, or agents, from conducting any further hearings, proceedings, or taking any steps pursuant to or in furtherance of the said unlawful decision.
3. A declaration that the Respondent’s decision dated 18th December 2025 is unlawful, irrational, procedurally unfair, ultra vires, and in violation of Articles 27, 35(3), 47, and 50(1) of the Constitution of Kenya, 2010.
4. A declaration that the Respondent’s decision contained in the Notice of Intended Debarment dated 18 th December 2025 in Debarment Application No. 9 of 2025 violated the Ex Parte Applicant’s right to fair administrative action and is unlawful, unreasonable, irrational, procedurally unfair and unconstitutional, for being in breach of Sections 4(1), 4(2), 4(3)(a), (d) and (g), 4(4), 6(1) and 6(2) of the Fair Administrative Action Act, 2015,
5. A declaration that the finding of a prima facie case under Regulation 22(5)(a) of the Public Procurement and Asset Disposal Regulations, 2020 is a substantive jurisdictional threshold which cannot lawfully be met in the absence of material capable of sustaining adverse findings if left unanswered.
6. The costs of this application be borne by the Respondent and the Interested Party, jointly and severally.
7. Such further or other orders as this Honourable Court may deem just and expedient in the circumstances.
2. The notice of motion is predicated on the grounds on the face of the application, statutory statement and Verifying Affidavit of Shashi Kumar Malleshappa Shirol , sworn on 30 th December, 2025 accompanying the chamber summons for leave to apply.
3. The applicant’s case is that by the respondent’s decision dated 18 th December, 2025, which is Notice of intended Debarment and Directions, following a request for debarment lodged by the interested party herein Dr. Charles Nzai in Debarment Application No. 9 of 2025, the respondent found that a prima facie case exists against the applicant herein, allegedly, without any evidentiary basis. The applicant contends that the allegations contained in the request for debarment are bare, speculative and unsupported by any probative evidence and that the annextures relied upon do not demonstrate any breach of the Public Procurement and Asset Disposal Act by the Applicant and that therefore it is unclear how the Debarment Committee found that a prima facie case had been established.
4. The applicant asserts that there is completely no nexus between all the prejudicial allegations in the request for debarment and annexures provided and that the requirement to establish a prima facie case is not a mere statutory or procedural formality but a substantive procedural hurdle that must be demonstrated clearly and with precision. That allowing every allegation to be accepted as established fact without any proof whatsoever violates the right to a fair hearing under the Constitution of Kenya, 2010.
5. It is also contended by the applicant that the Interested Party lacks the requisite knowledge or standing contemplated under Regulation 22(1)(b), which limits requests to accounting officers or persons with direct factual knowledge. That the Interested Party appears to be acting as a proxy for competitors or other parties with ulterior motives, as demonstrated by the speculative nature of the allegations spanning three unrelated tenders across two separate entities.
6. Further, that the Interested Party failed to disclose his full particulars, thereby denying the Ex parte Applicant notice of its accuser and occasioning a breach of procedural fairness.
7. It is averred that the Debarment Committee ought to have investigated the allegations in detail and evaluated them against the evidence presented and that having failed to do so, no rational tribunal, properly directing its mind to the allegations contained in the request or recommendation for debarment, would have found that a prima facie case had been established without, at the very least, interrogating the evidence in support of those allegations.
8. The applicant maintains that no rational tribunal, properly directing its mind to the allegations raised, would have rendered a decision on a prima facie case without requiring evidence in support of alleged unsubstantiated allegations. That as such, the Respondent’s decision is irrational, arbitrary, ultra vires and procedurally unfair and that it violates Article 47 of the Constitution.
9. It is asserted by the applicant that by the respondent accepting allegations made by the interested party against the applicant without proof and initiating punitive proceedings, the Respondent violated the Applicant’s right to a fair hearing under Article 50(1) and the right to lawful, reasonable and procedurally fair administrative action under Article 47 of the Constitution.
10. Further contention is that the Interested Party lacked the requisite standing contemplated under Regulation 22(1)(b) of the Act, which limits requests for debarment to accounting officers or persons with direct factual knowledge, and that in this case, the interested party appears to have acted as a proxy for undisclosed competitors, as evidenced by the speculative and wide-ranging allegations spanning unrelated tenders across different procuring entities.
11. That the Interested Party further failed to disclose his full particulars, thereby denying the Ex Parte Applicant notice of its accuser and occasioning a fundamental breach of procedural fairness.
12. The applicant maintains that the Debarment Committee abdicated its statutory mandate by failing to investigate, interrogate, or evaluate the allegations against the evidence, contrary to the obligation imposed by Regulation 22 and the principles of fair administrative action.
13. That it is inconceivable, unreasonable and a mockery of due process that all the bare allegations in the request for debarment passed the Respondent’s scrutiny for a prima facie case without any evidentiary interrogation.
14. The Respondent is said to be under a statutory duty to analyze every request or recommendation for debarment, which duty entails careful examination, study and evaluation, and not a superficial or mechanical acceptance of allegations.
15. According to the applicant, the legislative intent behind granting the Debarment Committee up to thirty (30) days to determine whether a prima facie case exists was to facilitate thorough and deliberate scrutiny, not perfunctory rubber-stamping of complaints.
16. The applicant contends that the Debarment Committee operates under relaxed rules of evidence, which empowers it to seek clarification, documents or further material from a complainant. However, that in the instant case, the Respondent failed to exercise this power and instead proceeded, in the absence of evidence to determine that a prima facie case had been established against the applicant, to warrant Notice of intended debarment.
17. Further, that the statutory and regulatory framework governing debarment provides safeguards against abuse, including the requirement that offences such as fraud or misrepresentation be supported by judgments, investigation reports, or other credible material, none of which were presented in this case. The applicant further contends that a further safeguard against abuse is the standing requirement under Regulation 22(1)(b), intended to prevent persons with ulterior motives from triggering debarment proceedings, which safeguard was wholly disregarded by the Respondent.
18. It was asserted that the Interested Party presented documents that were illegally and fraudulently acquired, and which are the subject of pending proceedings, yet even those documents do not substantiate the serious allegations raised.
19. That the statutory requirement of “analysis” entails examination, investigation and reasoned evaluation, and not a mere glance at allegations and that therefore, the Respondent’s failure to undertake such analysis renders its decision unlawful.
20. According to the applicant, no rational tribunal, properly directing its mind to the law and the facts, would have found that a prima facie case existed without interrogating the evidentiary foundation of the allegations. That no rational tribunal would have rendered a decision initiating punitive proceeding without requiring evidence in support of such serious and prejudicial allegations.
21. The applicant therefore maintains that the Respondent’s decision is irrational, arbitrary, unreasonable, ultra vires and procedurally unfair, and violates Article 47 and 50(1) of the Constitution of Kenya 2010 and Sections 4, 6 and 7 of the Fair Administrative Action Act, 2015.
22. Further, that the respondent violated Article 35 of the Constitution and Section 6 of the Fair Administrative Action Act by failing to supply the information, evidence, and reasons forming the basis of the impugned decision and that unless this Honourable Court intervenes, the Applicant risks continuing to suffer irreparable harm, including damage to its reputation, commercial interests, and constitutional rights, arising from the unlawful administrative process pursued by the Respondent and/or the Interested Party.
23. That it is in the interest of justice, fairness, and the rule of law that this application be allowed as prayed, to prevent further unlawful prejudice to the Applicant, as neither the Respondent nor the Interested Party will suffer any material harm or prejudice should this application be allowed.
24. The above grounds are replicated in the statutory statement providing the factual background of the dispute giving rise to these proceedings.
The Respondent’s replying affidavit
25. Opposing the application, only the respondent filed a replying affidavit sworn by Raphael Muia Ngalatu the Acting Secretary of the Debarment Committee of the Respondent’s Public Procurement Regulatory Board on 8 th January, 2026.
26. The interested party, despite being served with the application, neither entered appearance nor filed any response to the notice of motion.
27. In the said affidavit, the Respondent’s deponent gives the legal background to the establishment of the Respondent Regulatory Authority, under the Public Procurement and Assets Disposal Act and its statutory mandate being, among others, to ensure that procurement procedures established under the Act are complied with.
28. Further deposition is that in executing its mandate, the Respondent’s Board is empowered under section 41 of the Act as read together with Regulation 22 of the Public Procurement and Asset Disposal Regulations, 2020 (the Regulations) to debar any person (s) who commit the offences stipulated in section 41 of the Act.
29. Mr. Ngalatu explains that the Respondent received a Request for Debarment of the Applicant herein which was filed on 20th November, 2025 by the Interested Party pursuant to the provisions of Regulation 22 (1) (a) of the Regulations which provides that “a request for debarment may be initiated by the accounting officer of a procuring entity, or any other person with knowledge of facts that may support one or more grounds for debarment.” He annexes a copy of the Request for Debarment together with its annexures.
30. He asserts on behalf of the Respondent, that the Request for Debarment was considered by the Respondent in accordance with Regulation 22 (5) (a) and (b) of the Regulations which provides that (a) upon receipt of a request for debarment, the Board shall analyze the case within thirty days to determine whether there is a prima facie case for debarment; (b) if the analysis establishes a prima facie case for debarment, the Board shall issue a notice of intended debarment to the party, who shall be the subject of the debarment proceedings requiring him or her to file a written response with the Board.
31. The Respondent deposes that after considering the Request for Debarment, the Respondent found that there was a prima facie case and so, it issued a Notice of Intended Debarment dated 18th December, 2025 to the Applicant together with directions on filing, and more specifically granting the Applicant herein fourteen (14) days to file and serve its written response. The deponent annexes a copy of the said Notice of Intended Debarment.
32. It is averred in deposition that in compliance with the contents of the abovementioned Notice, the Applicant herein filed a Memorandum of Response to the Request for Debarment dated 1st January, 2026 as annexed.
33. It is therefore contended that in any event, the Applicant herein has already complied with the contents and directions of the Notice of Intended Debarment and constructively, subjected itself to the proceedings of the Respondent hence, the instant application has already been overtaken by events (is moot) and that therefore, granting the orders sought will be an exercise in futility, with the application already spent.
34. In further deposition, the respondent annexed copy of the request for debarment together with annextures and denies the assertion by the applicant that the interested party did not have the requisite knowledge of facts that can support the request for debarment.
35. It was deposed that the Regulation gives leeway for public spirited persons to initiate proceedings for debarment, based on information that they have reasonably and practically accessed. Further, that the interested party has made very serious allegations against the applicant giving grounds for seeking the debarment of the applicant from participating in the public procurement and asset disposal in Kenya, which allegations hinge on criminality inter alia, committing an offence under sections 41 (1) (a) and section 176 (1)(i) of the PPAD Act by signing contracts contrary to the mandatory requirements of the Act and Regulations, 2020.
36. Specifically, the respondent contends that there are allegations of the applicant entering into contracts with threshold amounts that are exclusively reserved for citizen contractors despite the applicant being wholly owned by foreign nationals, thereby violating the law on preference and reservations; commission of fraudulent acts by misrepresenting its eligibility status in tender documents and submitting bids and signing contracts reserved for citizen contractors contrary to mandatory preference and reservation regime under section 157(8) (a) of the Act; commission of offence relating to procurement under any other written law contrary to section 41(1)(b) of the Act by acquiring benefits from unlawfully procured contracts which constitutes an offence under section 45(1) (a) of the Anti-corruption and Economic Crimes Act, 2003 and thereby benefiting from irregularly obtained public resources; and breach of procurement contract including poor performance contrary to section 41(1) (c) of the Act with allegations that the applicant breached three separate contracts for procurement by public entities through persistent and unjustified delays extending between 13months and 24 months beyond agreed delivery periods evidencing poor performance.
37. Further, that the interested party supported his request debarment with detailed justifications and documentary evidence which was analyzed before the respondent determined the existence of a prima facie case against the applicant.
38. That in any event, under section 42 of the Act, the applicant has a right to request for judicial review of the decision on debarment once the process is completed and that in this case, there is nothing unprocedural to warrant interference at this stage since the interested party had enjoined the interested parties whose contracts with the applicant are under scrutiny, citing the respective tenders.
39. The respondent has extracted parts of the alleged contracts between the applicant and Kenya Airports Authority and Kenya Civil Aviation Authority and contends that the CR 12 for the applicant shows that the shareholders are Indian Nationals hence the contracts were below thresholds as mandated by section 157 (8) (a) of the Act and Regulation 163.
40. It is further deposed that as provided for in section 41 of the Act, the Respondent’s Board is the only body empowered with the mandate of hearing debarment proceedings, with its members comprising of persons with diverse expertise in the various fields relevant to debarment proceedings.
41. It is contended that where the Constitution and Acts of Parliament have allocated certain powers and functions to various bodies and tribunals, it is important that these bodies and tribunals be given leeway to discharge the mandate bestowed upon them so long as they comply with the Constitution and national legislation.
42. Further, that there is nothing which is unprocedural and/or unlawful with the conduct of the Respondent in the impugned debarment proceedings for this Court to find it fit to interfere with its proceedings.
43. That in any event, if any of the parties to the debarment proceedings are aggrieved by the final decision of the Respondent’s Board, the aggrieved party has a recourse in judicial review as provided for in section 42 of the Act that, “A party to the debarment may seek Judicial Review from the decision of the Authority to the High Court within fourteen days after the decision is made.”
44. That therefore this Court should not interfere with proceedings of the Respondent’s Board at this point, as any aggrieved party will have the right to approach this court once the Respondent’s Board has heard the Parties and rendered its decision. The Respondent urged this Court to dismiss the applicant’s notice of motion with costs.
The applicant’s supplementary affidavit
45. The applicant filed supplementary affidavit sworn on 12 th January, 2026 by Shashikumar Malleshappa Shirol responding to the replying affidavit responding to the depositions by the Respondent in its replying affidavit and maintaining its initial position.
46. It is deposed that the application does not challenge the final outcome of the debarment proceedings nor is it intended to avoid a hearing but challenges the lawfulness of the threshold decision to initiate the debarment proceedings. That the finding of prima facie case under Regulation 22 is a distinct reviewable administrative decision.
47. That the respondent’s argument that the applicant should await the final decision is an invitation to condone a process rooted in illegality from its inception.
48. On whether the interested party has direct or personal knowledge of the allegations contained in the request for debarment, the applicant contends that the allegations in the request are speculative, based on illegally obtained documents and that the interested party lacks a genuine public interest and appears to be a vexatious litigant or a proxy for a competitor, not a public-spirited informant. This, according to the applicant is evidenced by lack of knowledge of internal procurement processes, tender specifications or performance evaluation by the Interested Party.
49. That the interested party’s allegations are legal conclusions based on misinterpretation of the law as opposed to assertions of facts witnessed or known by him hence, he lacked locus and therefore the respondent acted ultra vires in entertaining the request for debarment.
50. The applicant maintains that no proper analysis was undertaken by the respondent to meet the threshold under Regulation 22 (5) (a) as the request bears bare allegations without probative evidence, asserting that the annextures do not establish any ground for debarment.
51. That the respondent equates serious allegations with prima facie case yet the legal threshold is not seriousness of the allegations but a prima facie case where conduct alleged, if left unrebutted could justify debarment.
52. According to the applicant, there is no investigation report, audit finding, performance evaluation or compliance determination was placed before the Board for consideration. That the respondent does not, for example, identify any document that objectively demonstrates fraud, mis representation, illegality or breach.
53. On alleged violation of sections 157(8) and Regulation 163, the applicant deposes that preference and reservation under section 157 are not automatic and that they apply only where a procuring entity expressly invokes and incorporates them into the tender documents.
54. That none of the tender documents which under section 135 (6) form the basis of the procurement contracts were annexed to the request for debarment nor advertisement for the tenders, tender notices, eligibility criteria clause or condition to show that the tenders were reserved or restricted to citizens contractors.
55. That without the tender documents, the respondent could not lawfully tell whether any reservations applied and that therefore its conclusion was speculative, conjecture and unsupported and that the documents annexed to the request for debarment could not establish any prima facie case on alleged breaches.
56. That the CR12 shows the applicant as a Kenyan incorporated company with the respective nationalities of its directors but does not establish any misrepresentation or fraudulent deceptive intent in any tender that the applicant participated in.
57. According to the applicant, Performance Bond and Letter of Intention are standard contractual documents. That a performance bond is a guarantee of future performance, not evidence of past poor performance or delay. That the Respondent’s Affidavit is conspicuously silent on the central allegation of "poor performance," because no completion reports, project monitoring reports, default notices, or liquidated damage claims were ever provided by the Interested Party to substantiate it hence the Committee had nothing to analyze on this point.
58. Further deposition is that the Request for Debarment is fundamentally self-contradictory and contains mutually destructive allegations. On one hand, it asserts that the three contracts were illegally awarded and executed in violation of the mandatory preference and reservation regime (grounds (a), (b) and (c)), rendering them void ab initio . On the other hand, it alleges breach of the same contracts through persistent delays in performance (ground (d)). These positions are contested to be legally incompatible and that therefore, the Committee wholly failed to interrogate or resolve this glaring inconsistency.
59. That without the tender documents, no analysis of breach is possible, to establish if the procuring entities invoked the reservation, if the Applicant duly declared its ownership, or if the entities proceeded with full knowledge. The applicant maintains that Respondent’s finding of prima facie case was without rational basis or reasons, violating Regulation 22(5)(a) and Section 4 of the Fair Administrative Action Act, 2015 and that no reasonable committee could find prima facie on bare, unsupported allegations.
60. On judicial intervention, the applicant asserts in deposition that Judicial intervention is justified to prevent irreparable harm which are reputational and commercial damage from ongoing proceedings. Further, that Section 42 on appeal (should be judicial review not appeal), does not bar review of threshold jurisdictional errors.
61. That the response to the notice of intended debarment as filed by the applicant was done under protest and without prejudice to the instant Judicial Review application, to avoid a default judgment in a parallel unlawful process. That participation in a flawed process to mitigate damage does not amount to acquiescence or waive the right to challenge the foundational illegality of that process, noting that in addition to the Memorandum of Response, the applicants also filed a Preliminary Objection which the Respondent calculatedly failed to disclose.
62. That section 42 of the Act on appeal provides a remedy against a final debarment decision while the applicant is challenging the preliminary decision to initiate proceedings, for which no internal appeal is provided hence, Judicial Review is the only and appropriate remedy.
63. The applicant reiterates that the finding of prima facie case was illegal and ultra vires, irrational, laced with procedural unfairness, and was in breach of Constitutional Rights (Articles 47 & 50), subjecting a person to a punitive process based on unsubstantiated allegations and a flawed legal theory, which is the epitome of unfair administrative action and creates a legitimate apprehension of bias.
64. Finally, it is deposed that the Respondent has failed to demonstrate that its Debarment Committee undertook any lawful, rational, or evidence-based analysis prior to making the impugned finding of a prima facie case and that no logical or evidentiary nexus between the allegations contained in the Request for Debarment and the annexures relied upon in support thereof. The Respondent’s Affidavit instead discloses a decision-making process that was fundamentally flawed in law, irrational, and procedurally unfair.
Submissions
65. The parties filed written submissions to canvass the application, reiterating the pleadings and depositions. On the part of the applicant, its counsel relied on submissions dated 12 th January 2026 restating his client’s depositions in the two detailed affidavits as filed and maintained that the finding of prima facie case was illegal and unprocedural and unprocedural and ultra vires. That there is no evidence that the Board ever scrutinized, analyzed or examined the request for debarment as there was no sufficient evidential material placed before it to warrant a finding of a prima facie case as contemplated in section 41 of the Act and Regulation 22 of the Regulations made under the Act.
66. Further, that the use of the words analyze means studying, examining and scrutinizing the request before making a finding of prima facie case . That the Board was expected to do more than just looking at the face value of the Request for Debarment and that in this case, there is no material placed before the Board to support the allegations of corruption, misrepresentation or poor performance of the tenders awarded, yet not even the tender documents or a report of such poor performance was placed before the Board for scrutiny.
67. It is submitted that the request for debarment must be supported by evidence and not conjecture as was, allegedly, in the present case meaning, the Board considered extraneous which are not within the confines of the law in determining that a prima facie case had been established.
68. Further, that the interested party appears to be a common applicant in debarment proceedings.
69. The applicant also submitted, relying on the respondent’s own Debarment Manual (2022), while not a statutory instrument, but argues that it constitutes a published policy guideline governing the lawful exercise of its debarment mandate. It relied on Sections 4 and 5 of the Manual which consistently require the existence of “sufficient evidence” capable of supporting the statutory grounds for debarment under Section 41 of the Public Procurement and Asset Disposal Act, 2015. That by departing from its own published policy without explanation or justification, the Respondent acted unreasonably and arbitrarily, contrary to settled principles of administrative law. The rest of the submissions mirror th depositions by the applicant’s deponent.
The Respondent’s submissions
70. On behalf of the respondent, reliance was placed on the written submissions and list of authorities dated 14 th January, 2026. It was submitted that this is not the right forum to ventilate merits or otherwise of the request for debarment. That the applicant was urging debarment proceedings before this Court instead of raising those issues with the Board and that having already filed a response to the Notice of intended debarment proceedings as directed by the Board, this application is an academic ex
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IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW DIVISION
JUDICIAL REVIEW APPLICATION NO. E003 OF 2026
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW ORDERS OFCERTIORARI & PROHIBITION
AND
IN THE MATTER OF THE PUBLIC PROCUREMENT AND ASSET DISPOSAL ACT, 2015
AND
IN THE MATTER OF THE PUBLIC PROCUREMENT AND ASSET DISPOSAL REGULATIONS, 2020
AND
IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTION ACT, 2015
AND
IN THE MATTER OF ARTICLES 47, 50 AND 165(6) & (7) OF THE CONSTITUTION OF
KENYA, 2010
AND
IN THE MATTER OF A DECISION BY THE PUBLIC PROCUREMENT REGULATORY
AUTHORITY DEBARMENT COMMITTEE
AND
IN THE MATTER OF PUBLIC PROCUREMENT REGULATORY BOARD DEBARMENT APPLICATION NO. 9 OF 2025
BETWEEN
REPUBLIC .................................................................................. APPLICANT
VERSUS
PUBLIC PROCUREMENT REGULATORY AUTHORITY............................................................................RESPONDENT
AND
DR. CHARLES NZAI………………..………………INTERESTED PARTY
AND
BLUE QUADRANT LIMITED ………………… EX PARTE APPLICANT
JUDGMENT
1. Vide Notice of motion dated 6 th January, 2026 filed pursuant to leave granted on 6 th January 2026 in JR Miscellaneous Application No. E169 of 2025, the exparte applicant, Blue Quadrant Limited seeks the following judicial Review Orders:
1. AN ORDER OF CERTIORARI- To remove into this Honourable Court and quash the decision of the Respondent contained in the Notice of Intended Debarment dated 18th December 2025 in Debarment Application No. 9 of 2025, and all consequential steps taken thereunder.
2. AN ORDER OF PROHIBITION- To prohibit the Respondent, whether by itself, its members, officers, servants, or agents, from conducting any further hearings, proceedings, or taking any steps pursuant to or in furtherance of the said unlawful decision.
3. A declaration that the Respondent’s decision dated 18th December 2025 is unlawful, irrational, procedurally unfair, ultra vires, and in violation of Articles 27, 35(3), 47, and 50(1) of the Constitution of Kenya, 2010.
4. A declaration that the Respondent’s decision contained in the Notice of Intended Debarment dated 18 th December 2025 in Debarment Application No. 9 of 2025 violated the Ex Parte Applicant’s right to fair administrative action and is unlawful, unreasonable, irrational, procedurally unfair and unconstitutional, for being in breach of Sections 4(1), 4(2), 4(3)(a), (d) and (g), 4(4), 6(1) and 6(2) of the Fair Administrative Action Act, 2015,
5. A declaration that the finding of a prima facie case under Regulation 22(5)(a) of the Public Procurement and Asset Disposal Regulations, 2020 is a substantive jurisdictional threshold which cannot lawfully be met in the absence of material capable of sustaining adverse findings if left unanswered.
6. The costs of this application be borne by the Respondent and the Interested Party, jointly and severally.
7. Such further or other orders as this Honourable Court may deem just and expedient in the circumstances.
2. The notice of motion is predicated on the grounds on the face of the application, statutory statement and Verifying Affidavit of Shashi Kumar Malleshappa Shirol , sworn on 30 th December, 2025 accompanying the chamber summons for leave to apply.
3. The applicant’s case is that by the respondent’s decision dated 18 th December, 2025, which is Notice of intended Debarment and Directions, following a request for debarment lodged by the interested party herein Dr. Charles Nzai in Debarment Application No. 9 of 2025, the respondent found that a prima facie case exists against the applicant herein, allegedly, without any evidentiary basis. The applicant contends that the allegations contained in the request for debarment are bare, speculative and unsupported by any probative evidence and that the annextures relied upon do not demonstrate any breach of the Public Procurement and Asset Disposal Act by the Applicant and that therefore it is unclear how the Debarment Committee found that a prima facie case had been established.
4. The applicant asserts that there is completely no nexus between all the prejudicial allegations in the request for debarment and annexures provided and that the requirement to establish a prima facie case is not a mere statutory or procedural formality but a substantive procedural hurdle that must be demonstrated clearly and with precision. That allowing every allegation to be accepted as established fact without any proof whatsoever violates the right to a fair hearing under the Constitution of Kenya, 2010.
5. It is also contended by the applicant that the Interested Party lacks the requisite knowledge or standing contemplated under Regulation 22(1)(b), which limits requests to accounting officers or persons with direct factual knowledge. That the Interested Party appears to be acting as a proxy for competitors or other parties with ulterior motives, as demonstrated by the speculative nature of the allegations spanning three unrelated tenders across two separate entities.
6. Further, that the Interested Party failed to disclose his full particulars, thereby denying the Ex parte Applicant notice of its accuser and occasioning a breach of procedural fairness.
7. It is averred that the Debarment Committee ought to have investigated the allegations in detail and evaluated them against the evidence presented and that having failed to do so, no rational tribunal, properly directing its mind to the allegations contained in the request or recommendation for debarment, would have found that a prima facie case had been established without, at the very least, interrogating the evidence in support of those allegations.
8. The applicant maintains that no rational tribunal, properly directing its mind to the allegations raised, would have rendered a decision on a prima facie case without requiring evidence in support of alleged unsubstantiated allegations. That as such, the Respondent’s decision is irrational, arbitrary, ultra vires and procedurally unfair and that it violates Article 47 of the Constitution.
9. It is asserted by the applicant that by the respondent accepting allegations made by the interested party against the applicant without proof and initiating punitive proceedings, the Respondent violated the Applicant’s right to a fair hearing under Article 50(1) and the right to lawful, reasonable and procedurally fair administrative action under Article 47 of the Constitution.
10. Further contention is that the Interested Party lacked the requisite standing contemplated under Regulation 22(1)(b) of the Act, which limits requests for debarment to accounting officers or persons with direct factual knowledge, and that in this case, the interested party appears to have acted as a proxy for undisclosed competitors, as evidenced by the speculative and wide-ranging allegations spanning unrelated tenders across different procuring entities.
11. That the Interested Party further failed to disclose his full particulars, thereby denying the Ex Parte Applicant notice of its accuser and occasioning a fundamental breach of procedural fairness.
12. The applicant maintains that the Debarment Committee abdicated its statutory mandate by failing to investigate, interrogate, or evaluate the allegations against the evidence, contrary to the obligation imposed by Regulation 22 and the principles of fair administrative action.
13. That it is inconceivable, unreasonable and a mockery of due process that all the bare allegations in the request for debarment passed the Respondent’s scrutiny for a prima facie case without any evidentiary interrogation.
14. The Respondent is said to be under a statutory duty to analyze every request or recommendation for debarment, which duty entails careful examination, study and evaluation, and not a superficial or mechanical acceptance of allegations.
15. According to the applicant, the legislative intent behind granting the Debarment Committee up to thirty (30) days to determine whether a prima facie case exists was to facilitate thorough and deliberate scrutiny, not perfunctory rubber-stamping of complaints.
16. The applicant contends that the Debarment Committee operates under relaxed rules of evidence, which empowers it to seek clarification, documents or further material from a complainant. However, that in the instant case, the Respondent failed to exercise this power and instead proceeded, in the absence of evidence to determine that a prima facie case had been established against the applicant, to warrant Notice of intended debarment.
17. Further, that the statutory and regulatory framework governing debarment provides safeguards against abuse, including the requirement that offences such as fraud or misrepresentation be supported by judgments, investigation reports, or other credible material, none of which were presented in this case. The applicant further contends that a further safeguard against abuse is the standing requirement under Regulation 22(1)(b), intended to prevent persons with ulterior motives from triggering debarment proceedings, which safeguard was wholly disregarded by the Respondent.
18. It was asserted that the Interested Party presented documents that were illegally and fraudulently acquired, and which are the subject of pending proceedings, yet even those documents do not substantiate the serious allegations raised.
19. That the statutory requirement of “analysis” entails examination, investigation and reasoned evaluation, and not a mere glance at allegations and that therefore, the Respondent’s failure to undertake such analysis renders its decision unlawful.
20. According to the applicant, no rational tribunal, properly directing its mind to the law and the facts, would have found that a prima facie case existed without interrogating the evidentiary foundation of the allegations. That no rational tribunal would have rendered a decision initiating punitive proceeding without requiring evidence in support of such serious and prejudicial allegations.
21. The applicant therefore maintains that the Respondent’s decision is irrational, arbitrary, unreasonable, ultra vires and procedurally unfair, and violates Article 47 and 50(1) of the Constitution of Kenya 2010 and Sections 4, 6 and 7 of the Fair Administrative Action Act, 2015.
22. Further, that the respondent violated Article 35 of the Constitution and Section 6 of the Fair Administrative Action Act by failing to supply the information, evidence, and reasons forming the basis of the impugned decision and that unless this Honourable Court intervenes, the Applicant risks continuing to suffer irreparable harm, including damage to its reputation, commercial interests, and constitutional rights, arising from the unlawful administrative process pursued by the Respondent and/or the Interested Party.
23. That it is in the interest of justice, fairness, and the rule of law that this application be allowed as prayed, to prevent further unlawful prejudice to the Applicant, as neither the Respondent nor the Interested Party will suffer any material harm or prejudice should this application be allowed.
24. The above grounds are replicated in the statutory statement providing the factual background of the dispute giving rise to these proceedings.
The Respondent’s replying affidavit
25. Opposing the application, only the respondent filed a replying affidavit sworn by Raphael Muia Ngalatu the Acting Secretary of the Debarment Committee of the Respondent’s Public Procurement Regulatory Board on 8 th January, 2026.
26. The interested party, despite being served with the application, neither entered appearance nor filed any response to the notice of motion.
27. In the said affidavit, the Respondent’s deponent gives the legal background to the establishment of the Respondent Regulatory Authority, under the Public Procurement and Assets Disposal Act and its statutory mandate being, among others, to ensure that procurement procedures established under the Act are complied with.
28. Further deposition is that in executing its mandate, the Respondent’s Board is empowered under section 41 of the Act as read together with Regulation 22 of the Public Procurement and Asset Disposal Regulations, 2020 (the Regulations) to debar any person (s) who commit the offences stipulated in section 41 of the Act.
29. Mr. Ngalatu explains that the Respondent received a Request for Debarment of the Applicant herein which was filed on 20th November, 2025 by the Interested Party pursuant to the provisions of Regulation 22 (1) (a) of the Regulations which provides that “a request for debarment may be initiated by the accounting officer of a procuring entity, or any other person with knowledge of facts that may support one or more grounds for debarment.” He annexes a copy of the Request for Debarment together with its annexures.
30. He asserts on behalf of the Respondent, that the Request for Debarment was considered by the Respondent in accordance with Regulation 22 (5) (a) and (b) of the Regulations which provides that (a) upon receipt of a request for debarment, the Board shall analyze the case within thirty days to determine whether there is a prima facie case for debarment; (b) if the analysis establishes a prima facie case for debarment, the Board shall issue a notice of intended debarment to the party, who shall be the subject of the debarment proceedings requiring him or her to file a written response with the Board.
31. The Respondent deposes that after considering the Request for Debarment, the Respondent found that there was a prima facie case and so, it issued a Notice of Intended Debarment dated 18th December, 2025 to the Applicant together with directions on filing, and more specifically granting the Applicant herein fourteen (14) days to file and serve its written response. The deponent annexes a copy of the said Notice of Intended Debarment.
32. It is averred in deposition that in compliance with the contents of the abovementioned Notice, the Applicant herein filed a Memorandum of Response to the Request for Debarment dated 1st January, 2026 as annexed.
33. It is therefore contended that in any event, the Applicant herein has already complied with the contents and directions of the Notice of Intended Debarment and constructively, subjected itself to the proceedings of the Respondent hence, the instant application has already been overtaken by events (is moot) and that therefore, granting the orders sought will be an exercise in futility, with the application already spent.
34. In further deposition, the respondent annexed copy of the request for debarment together with annextures and denies the assertion by the applicant that the interested party did not have the requisite knowledge of facts that can support the request for debarment.
35. It was deposed that the Regulation gives leeway for public spirited persons to initiate proceedings for debarment, based on information that they have reasonably and practically accessed. Further, that the interested party has made very serious allegations against the applicant giving grounds for seeking the debarment of the applicant from participating in the public procurement and asset disposal in Kenya, which allegations hinge on criminality inter alia, committing an offence under sections 41 (1) (a) and section 176 (1)(i) of the PPAD Act by signing contracts contrary to the mandatory requirements of the Act and Regulations, 2020.
36. Specifically, the respondent contends that there are allegations of the applicant entering into contracts with threshold amounts that are exclusively reserved for citizen contractors despite the applicant being wholly owned by foreign nationals, thereby violating the law on preference and reservations; commission of fraudulent acts by misrepresenting its eligibility status in tender documents and submitting bids and signing contracts reserved for citizen contractors contrary to mandatory preference and reservation regime under section 157(8) (a) of the Act; commission of offence relating to procurement under any other written law contrary to section 41(1)(b) of the Act by acquiring benefits from unlawfully procured contracts which constitutes an offence under section 45(1) (a) of the Anti-corruption and Economic Crimes Act, 2003 and thereby benefiting from irregularly obtained public resources; and breach of procurement contract including poor performance contrary to section 41(1) (c) of the Act with allegations that the applicant breached three separate contracts for procurement by public entities through persistent and unjustified delays extending between 13months and 24 months beyond agreed delivery periods evidencing poor performance.
37. Further, that the interested party supported his request debarment with detailed justifications and documentary evidence which was analyzed before the respondent determined the existence of a prima facie case against the applicant.
38. That in any event, under section 42 of the Act, the applicant has a right to request for judicial review of the decision on debarment once the process is completed and that in this case, there is nothing unprocedural to warrant interference at this stage since the interested party had enjoined the interested parties whose contracts with the applicant are under scrutiny, citing the respective tenders.
39. The respondent has extracted parts of the alleged contracts between the applicant and Kenya Airports Authority and Kenya Civil Aviation Authority and contends that the CR 12 for the applicant shows that the shareholders are Indian Nationals hence the contracts were below thresholds as mandated by section 157 (8) (a) of the Act and Regulation 163.
40. It is further deposed that as provided for in section 41 of the Act, the Respondent’s Board is the only body empowered with the mandate of hearing debarment proceedings, with its members comprising of persons with diverse expertise in the various fields relevant to debarment proceedings.
41. It is contended that where the Constitution and Acts of Parliament have allocated certain powers and functions to various bodies and tribunals, it is important that these bodies and tribunals be given leeway to discharge the mandate bestowed upon them so long as they comply with the Constitution and national legislation.
42. Further, that there is nothing which is unprocedural and/or unlawful with the conduct of the Respondent in the impugned debarment proceedings for this Court to find it fit to interfere with its proceedings.
43. That in any event, if any of the parties to the debarment proceedings are aggrieved by the final decision of the Respondent’s Board, the aggrieved party has a recourse in judicial review as provided for in section 42 of the Act that, “A party to the debarment may seek Judicial Review from the decision of the Authority to the High Court within fourteen days after the decision is made.”
44. That therefore this Court should not interfere with proceedings of the Respondent’s Board at this point, as any aggrieved party will have the right to approach this court once the Respondent’s Board has heard the Parties and rendered its decision. The Respondent urged this Court to dismiss the applicant’s notice of motion with costs.
The applicant’s supplementary affidavit
45. The applicant filed supplementary affidavit sworn on 12 th January, 2026 by Shashikumar Malleshappa Shirol responding to the replying affidavit responding to the depositions by the Respondent in its replying affidavit and maintaining its initial position.
46. It is deposed that the application does not challenge the final outcome of the debarment proceedings nor is it intended to avoid a hearing but challenges the lawfulness of the threshold decision to initiate the debarment proceedings. That the finding of prima facie case under Regulation 22 is a distinct reviewable administrative decision.
47. That the respondent’s argument that the applicant should await the final decision is an invitation to condone a process rooted in illegality from its inception.
48. On whether the interested party has direct or personal knowledge of the allegations contained in the request for debarment, the applicant contends that the allegations in the request are speculative, based on illegally obtained documents and that the interested party lacks a genuine public interest and appears to be a vexatious litigant or a proxy for a competitor, not a public-spirited informant. This, according to the applicant is evidenced by lack of knowledge of internal procurement processes, tender specifications or performance evaluation by the Interested Party.
49. That the interested party’s allegations are legal conclusions based on misinterpretation of the law as opposed to assertions of facts witnessed or known by him hence, he lacked locus and therefore the respondent acted ultra vires in entertaining the request for debarment.
50. The applicant maintains that no proper analysis was undertaken by the respondent to meet the threshold under Regulation 22 (5) (a) as the request bears bare allegations without probative evidence, asserting that the annextures do not establish any ground for debarment.
51. That the respondent equates serious allegations with prima facie case yet the legal threshold is not seriousness of the allegations but a prima facie case where conduct alleged, if left unrebutted could justify debarment.
52. According to the applicant, there is no investigation report, audit finding, performance evaluation or compliance determination was placed before the Board for consideration. That the respondent does not, for example, identify any document that objectively demonstrates fraud, mis representation, illegality or breach.
53. On alleged violation of sections 157(8) and Regulation 163, the applicant deposes that preference and reservation under section 157 are not automatic and that they apply only where a procuring entity expressly invokes and incorporates them into the tender documents.
54. That none of the tender documents which under section 135 (6) form the basis of the procurement contracts were annexed to the request for debarment nor advertisement for the tenders, tender notices, eligibility criteria clause or condition to show that the tenders were reserved or restricted to citizens contractors.
55. That without the tender documents, the respondent could not lawfully tell whether any reservations applied and that therefore its conclusion was speculative, conjecture and unsupported and that the documents annexed to the request for debarment could not establish any prima facie case on alleged breaches.
56. That the CR12 shows the applicant as a Kenyan incorporated company with the respective nationalities of its directors but does not establish any misrepresentation or fraudulent deceptive intent in any tender that the applicant participated in.
57. According to the applicant, Performance Bond and Letter of Intention are standard contractual documents. That a performance bond is a guarantee of future performance, not evidence of past poor performance or delay. That the Respondent’s Affidavit is conspicuously silent on the central allegation of "poor performance," because no completion reports, project monitoring reports, default notices, or liquidated damage claims were ever provided by the Interested Party to substantiate it hence the Committee had nothing to analyze on this point.
58. Further deposition is that the Request for Debarment is fundamentally self-contradictory and contains mutually destructive allegations. On one hand, it asserts that the three contracts were illegally awarded and executed in violation of the mandatory preference and reservation regime (grounds (a), (b) and (c)), rendering them void ab initio . On the other hand, it alleges breach of the same contracts through persistent delays in performance (ground (d)). These positions are contested to be legally incompatible and that therefore, the Committee wholly failed to interrogate or resolve this glaring inconsistency.
59. That without the tender documents, no analysis of breach is possible, to establish if the procuring entities invoked the reservation, if the Applicant duly declared its ownership, or if the entities proceeded with full knowledge. The applicant maintains that Respondent’s finding of prima facie case was without rational basis or reasons, violating Regulation 22(5)(a) and Section 4 of the Fair Administrative Action Act, 2015 and that no reasonable committee could find prima facie on bare, unsupported allegations.
60. On judicial intervention, the applicant asserts in deposition that Judicial intervention is justified to prevent irreparable harm which are reputational and commercial damage from ongoing proceedings. Further, that Section 42 on appeal (should be judicial review not appeal), does not bar review of threshold jurisdictional errors.
61. That the response to the notice of intended debarment as filed by the applicant was done under protest and without prejudice to the instant Judicial Review application, to avoid a default judgment in a parallel unlawful process. That participation in a flawed process to mitigate damage does not amount to acquiescence or waive the right to challenge the foundational illegality of that process, noting that in addition to the Memorandum of Response, the applicants also filed a Preliminary Objection which the Respondent calculatedly failed to disclose.
62. That section 42 of the Act on appeal provides a remedy against a final debarment decision while the applicant is challenging the preliminary decision to initiate proceedings, for which no internal appeal is provided hence, Judicial Review is the only and appropriate remedy.
63. The applicant reiterates that the finding of prima facie case was illegal and ultra vires, irrational, laced with procedural unfairness, and was in breach of Constitutional Rights (Articles 47 & 50), subjecting a person to a punitive process based on unsubstantiated allegations and a flawed legal theory, which is the epitome of unfair administrative action and creates a legitimate apprehension of bias.
64. Finally, it is deposed that the Respondent has failed to demonstrate that its Debarment Committee undertook any lawful, rational, or evidence-based analysis prior to making the impugned finding of a prima facie case and that no logical or evidentiary nexus between the allegations contained in the Request for Debarment and the annexures relied upon in support thereof. The Respondent’s Affidavit instead discloses a decision-making process that was fundamentally flawed in law, irrational, and procedurally unfair.
Submissions
65. The parties filed written submissions to canvass the application, reiterating the pleadings and depositions. On the part of the applicant, its counsel relied on submissions dated 12 th January 2026 restating his client’s depositions in the two detailed affidavits as filed and maintained that the finding of prima facie case was illegal and unprocedural and unprocedural and ultra vires. That there is no evidence that the Board ever scrutinized, analyzed or examined the request for debarment as there was no sufficient evidential material placed before it to warrant a finding of a prima facie case as contemplated in section 41 of the Act and Regulation 22 of the Regulations made under the Act.
66. Further, that the use of the words analyze means studying, examining and scrutinizing the request before making a finding of prima facie case . That the Board was expected to do more than just looking at the face value of the Request for Debarment and that in this case, there is no material placed before the Board to support the allegations of corruption, misrepresentation or poor performance of the tenders awarded, yet not even the tender documents or a report of such poor performance was placed before the Board for scrutiny.
67. It is submitted that the request for debarment must be supported by evidence and not conjecture as was, allegedly, in the present case meaning, the Board considered extraneous which are not within the confines of the law in determining that a prima facie case had been established.
68. Further, that the interested party appears to be a common applicant in debarment proceedings.
69. The applicant also submitted, relying on the respondent’s own Debarment Manual (2022), while not a statutory instrument, but argues that it constitutes a published policy guideline governing the lawful exercise of its debarment mandate. It relied on Sections 4 and 5 of the Manual which consistently require the existence of “sufficient evidence” capable of supporting the statutory grounds for debarment under Section 41 of the Public Procurement and Asset Disposal Act, 2015. That by departing from its own published policy without explanation or justification, the Respondent acted unreasonably and arbitrarily, contrary to settled principles of administrative law. The rest of the submissions mirror th depositions by the applicant’s deponent.
The Respondent’s submissions
70. On behalf of the respondent, reliance was placed on the written submissions and list of authorities dated 14 th January, 2026. It was submitted that this is not the right forum to ventilate merits or otherwise of the request for debarment. That the applicant was urging debarment proceedings before this Court instead of raising those issues with the Board and that having already filed a response to the Notice of intended debarment proceedings as directed by the Board, this application is an academic ex
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