' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW DIVISION
JUDICIAL REVIEW MISC APPLICATON NO. E154 OF 2025
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
ORDERS OF CERTIORARI, MANDAMUS AND PROHIBITION
AND
IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTION ACT, 2015
AND
IN THE MATTER OF: CIVIL PROCEDURE RULES, ORDER 53
AND
IN THE MATTER OF: THE CONSTITUTION OF KENYA (2010) ARTICLES
2, 10, 22, 23, 24, 25, 27, 28, 32, 36, 38, 47(1) & (2), 48, 50,159,165, 258, 259 AND 260;
AND
ALL OTHER ENABLING PROVISIONS OF THE LAW
AND
IN THE MATTER OF THE PUBLIC PROCUREMENT AND ASSET DISPOSAL ACT, 2015
AND
IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW
REPUBLIC …………………………………………..………. APPLICANT
-VERSUS-
THE JUDICIARY OF KENYA ………………………..1ST RESPONDENT
THE ATTORNEY GENERAL ......................................2ND RESPONDENT
AND
CANARIES HOLDINGS LTD ………..……… EX-PARTE APPLICANT
RULING ON PRELIMINARY OBJECTION DATED 24/11/2025
The applicant vide chamber summons dated 21 st November, 2025 seeks from this Court the following prayers:
Spent
This Honourable Court be pleased to grant the Ex parte Applicant leave to apply for an order of certiorari to bring into this Honourable Court for purposes of being quashed the entire decision of THE JUDICIARY OF KENYA, the Respondent herein, in re-advertising the tender for the completion of Habaswein Law Courts.
This Honourable Court be pleased to grant the Ex parte Applicant leave to apply for an order of mandamus to compel the Respondent to cancel the advert dated 11th November 2025.
An Order of Mandamus do issue compelling the Respondents to accord the Applicant fair hearing and resolve the issues relating to the existing contract.
The leave sought do operate as a stay of the entire decision of THE JUDICIARY OF KENYA, the Respondent herein in the advert dated 11th November 2025, re-advertising the tender for the completion of Habaswein Law Courts.
Any other orders as the Court may deem fit to grant.
The cost of this Application be provided for.
The application is predicated on the grounds contained in the statutory statement and verified by the affidavit sworn by ABDIHAKIM A. ADAN.
The facts surrounding the application is that the Applicant was awarded the tender for the construction of Habaswein Law Courts after a competitive process, following which a contract dated 8th December 2022 was formally executed. Thereafter, the Applicant mobilized to site, deployed labour, equipment and materials, and commenced works. The applicant claims that it has completed the excavations and the steel reinforcement to raft foundation and related basement works for the structure.
That on or about February 2025, the Applicant and the Respondent have held meetings to discuss the prospects of the completion of the project due to budgetary constraints facing the contracting authority, upon which the Applicant wrote a letter dated 17th March 2025 to the Respondent reminding the Respondent of the effect of the budgetary constraints on the project timelines and the continued losses on the company. The Applicant further requested the Respondent to confirm the availability of funds considering earlier requests for payments processing were delayed for a significant period.
That the Respondent via a letter dated 3rd April 2025 confirmed that they could only pay for the value of works done for the concreting of the raft foundations of the project this financial year. That the Applicant informed the Respondent the extended period required to complete the project in light of the ongoing budgetary constraints and the need to extensively engage on this issue.
That the Applicant further communicated its readiness to complete the minimal assignment of casting of raft foundations via an email dated 16th June 2025, in which the Respondent was notified of the date of concreting and the need to urgently provide concurrence to proceed from their technical team on the planned works and confirmation of the Respondent’s ground team to supervise the exercise, but that the Applicant is yet to receive any communication on their last communication or any termination of their contract.
The applicant contends that at no time did the Respondent invoke or comply with the statutory procedures for termination or cancellation of the contract under sections 63, 135, 139 and 153 of the PPADA, 2015 and the contract document.
It is alleged that the Respondent instead recently issued an advert dated 11th November 2025 in the MyGOV advertisement platform for the proposed completion of Habaswein Law Courts and set the tender deadline as 25th November 2025, without communication or justification, amounting to an unlawful constructive termination of the subsisting contract, yet the Applicant is in possession of site and continues to incur significant site expenses including labour costs, machinery maintenance costs, security and other expenses necessitated by the ongoing project obligations.
The Applicant claims that it has completed other substantial works which no payment has been made and that the Respondent indicated were to be considered in a subsequent certificate of payment as and when funds are available.
The applicants claims that the re-advertised tender is scheduled to close on 25th November 2025, presenting imminent risk that the Respondent may unlawfully proceed to evaluate and award a parallel contract, in violation of constitutional and statutory principles including: Article 10 on rule of law, transparency and accountability; Article 47 on fair administrative action, Article 227 on fairness and equity in public procurement; Sections 4,5,6, and 7 of the Fair Administrative Action Act; Sections 63, 135,139 and 153 of the PPADA; the doctrine of legitimate expectation and the legal principle against irrational and arbitrary administrative conduct.
It is further alleged that the Respondent violated and continues to violate the provisions of Section (4) of the Fair Administrative Action Act by not affording the Ex-Parte Applicant the right and opportunity to be heard which failure adversely affected the rights of the Ex-Parte Applicant.
That therefore, unless the orders sought are granted, the Ex-parte Applicant stands to suffer irreparable loss and damage and that it is in the best interest of justice and fairness for this application to be heard urgently and that no one will suffer irreparable damage.
The applicant therefore asserts that the actions by the respondents are in abuse of discretion and error of law and are arbitrary, irrational and biased and should be quashed.
When the matter came up before me under certificate of urgency on 21/11/2025, I did not certify it as urgent. I however directed the applicant to serve the respondent forthwith for interpartes directions on 25 th November, 2025.
On 24 th November, 2025, the respondent filed a notice of preliminary objection to the chamber summons contending that:
The court is devoid of jurisdiction to entertain the application
The application as filed offends the provisions of section 9(2) of the Fair Administrative Action Act
The application is fatally defective, premature, incompetent and an abuse of the court process and ought to be struck out with costs to the respondent.
The parties’ counsel agreed to immediately canvass the preliminary objection and the was argued orally on 25 th November, 2025 with Mr. Akach submitting for the applicant while Mr. Munene Wanjohi submitted for the respondents in support of the notice of preliminary objection.
Mr. Munene submitted, reiterating the grounds in the preliminary objection, emphasizing that the application offends section 167(1) of the PPADA and section 9(2) of the Fair Administrative Action Act. Further, that there being a contract between the parties, the applicant ought to have moved to the Commercial Division of the High Court and that there are other available remedies for the applicant but not Judicial review. Further, that no administrative decision was taken by the judiciary capable of judicial review remedy.
On behalf of the applicant, Mr. Akach opposed the preliminary objection submitting that the issue of there being a contract between the parties was not in the Preliminary objection. That section 167(1) of the PPADA only applies to tenderers or candidates in a procurement process to move to the review Board but that in this case, the exparte applicant already has an existing contract and ongoing works in respect of the tender that the 1 st respondent is advertising afresh. He relied on the case of Amazon Transporters Ltd v PPARB and 2 others and Jenigo enterprises Ltd. Misc. E025 of 2025 at paras 74 -84 where this Court explained section 167(1) and 167 (4) (c) of the PPADA and on what can go to the review Board and what can go to judicial review.
Counsel submitted that the administrative decision is the retender advertisement by the judiciary when there is an existing contract between the parties hence the matter is for judicial review not for the Review Board. He urged the court to dismiss the preliminary objection.
In a rejoinder, Mr. Munene submitted that a preliminary objection can be raised either orally or in writing and that the issue of a contract is a point of law. He defined a candidate as per the PPADA as a person who has collected documents from the procuring entity. That there is attender notice which automatically gives the applicant locus to approach the Review Board. He prayed that the preliminary objection be allowed as prayed with costs to the respondent.
Analysis and Determination
I have considered the preliminary objection raised by the respondents and the response thereto in the oral submissions and the applicable law. The issue for consideration is whether the preliminary objection is merited and if so, what orders this court should make.
A Preliminary Objection has been defined in the locus classicus case of Mukisa Biscuit Company v Westend Distributor Limited (1969) EA 696 as follows:
“A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”
In John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others (2021) KESC 39 (KLR) the Supreme Court of Kenya held that:
‘A preliminary objection consisted of a point of law which had been pleaded, or which arose by clear implication out of pleadings, and which if argued as a preliminary point could dispose of the suit.’
In this case, the respondents have raised a preliminary objection concerning jurisdiction of this Court to hear and determine these proceedings. They have cited statutory provisions and also contended that the matter squarely falls within the commercial division of the High Court because it concerns an existing contract between the parties to the contract.
In the statutory provisions cited, the respondents contend that the matter falls within the premise of the Public Procurement and Asset Disposal Act hence it should have been filed before the Public Procurement Administrative Review Board (PPARB). Further, that the applicant offends section 9(2) of the Fair Administrative Action Act which mandates exhaustion of alternative dispute resolution mechanisms.
In Owners of Motor Vessel ‘Lilian S’ v Caltex Oil (Kenya) Ltd [1989] 1 KLR the Court of Appeal had this to say, whether an objection to jurisdiction amounted to a pure point of law for determination in the first instance:
“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it at the moment it holds the opinion that it is without jurisdiction.”
Accordingly, I am satisfied that the preliminary objection raised on the basis that this Court lacks jurisdiction is a pure point of law to be taken upfront before delving into any merits and only after the preliminary objection is overruled can the court determine the merits of the case.
In this case, the respondents contend that there is no administrative decision taken by the judiciary in readvertising the tender for construction of the Court house at Habaswein and that if there was any such decision then the forum for resolution is the PPARB since the tender has been readvertised. The applicant on the other hand submits that the applicant is not a candidate in the readvertised tender and that there is an already existing contract between the parties yet the 1 st respondent is readvertising for the same project which is ongoing although facing budgetary challenges, an issue the parties had discussed with a view to resolving, according to the pleadings by the applicant.
In resolving this first ground, I must reproduce what section 167 of the Public Procurement Asset Disposal Act (PPADA) as a whole provides, to avoid selective reading and reliance on statutory provisions and it is as follows:
167. Request for a review
(1) Subject to the provisions of this Part, a candidate or a tenderer, who claims to have suffered or to risk suffering, loss or damage due to the breach of a duty imposed on a procuring entity by this Act or the Regulations, may seek administrative review within fourteen days of notification of award or date of occurrence of the alleged breach at any stage of the procurement process, or disposal process as in such manner as may be prescribed.
(2) A request for review shall be accompanied by such refundable deposit as may be prescribed in the regulations, and such deposit shall not be less than ten per cent of the cost of the contract: Provided that this shall not apply to tenders reserved for women, youth, persons with disabilities and other disadvantaged groups.
(3) A request for review shall be heard and determined in an open forum unless the matter at hand is likely to compromise national security or the review procedure.
(4) The following matters shall not be subject to the review of procurement proceedings under subsection (1)—
(a) the choice of a procurement method;
(b) a termination of a procurement or asset disposal proceedings in accordance with section 63 of this Act; and
(c) where a contract is signed in accordance with section 135 of this Act.
In the Amazon Transporters Limited v Public Procurement Administrative Review Board & 2 others; Jennygo Enterprises Limited (Interested Party) (Miscellaneous Application E025 of 2025) [2025] KEHC 4664 (KLR) (Judicial Review) (9 April 2025) (Judgment), this Court, citing many other binding decisions of the Court of Appeal, comprehensively held as follows, concerning jurisdiction of the PPARB under section 167 (1) of the PPADA:
This in my view forms the other critical issue for consideration. The issue has been canvassed by the parties. Section 167(4)(c) of the PPADA provides that once a procurement contract is signed, the Review Board loses its jurisdiction to hear a review unless the contract was signed outside the tender’s validity period.
In the present case, the contract was signed on 14th August 2024, within the validity period of the tender. The Applicant’s contention is that the Board’s dismissal of its Request for Review, based on the contract being signed, was erroneous. The Applicant argues that despite the signing of the contract, the Review Board still had the jurisdiction to examine whether the contract was legally valid, particularly in light of alleged non-compliance with statutory procurement requirements.
This Court finds merit in the Applicant’s argument, particularly given the jurisprudence espoused in Public Procurement Administrative Review Board v Four M Insurance Brokers Limited & 3 others supra where the court also observed as follows:
“ On the second limb of jurisdiction relating to the existence of a signed contract, we note that the learned Judge of the superior Court held as follows on this issue:- “… 217. In Republic vs. Public Procurement Administrative Review Board exparte Madison General Insurance Kenya Limited; Vice Chancellor Kenyatta University & Another (Interested Parties) (2022) eKLR where Justice Ngaah held as follows:- “it could be that indeed the contract was invalid, but in my humble view, considering the provisions of Section 167(4)(c) once a contract has been signed, the appropriate forum before which the question of validity of a signed contract can be determined is this Honorable Court. It does not necessarily follow that an aggrieved party is left without a remedy merely because a contract is signed. Grievances arising out of a signed contract will certainly be addressed but not before the Public Procurement Administrative Review Board. They will be addressed before the court which only has the jurisdiction to determine such disputes related to the alleged grievances.” 2
The Board lacked jurisdiction to hear and determine the application by the 2nd Respondent under Section 167(4) of the Act, to entertain the application given that there was already a signed contract – signed on 2nd October 2023, between the ex-parte Applicant and the 3rd and 4th Respondent.
Given that the Contract was executed between the Applicant and the 4th Respondent, on 2 nd October 2023,theBoard lacked jurisdiction to adjudicate over any request for review led after the execution of a contract pursuant to the provisions of Section 167(4)(c) of the Act and I so hold…”
As already observed, the appellant’s jurisdiction emanates from Section 167(1) of the Act. Section 167(4) provides matters that shall not be subject to the jurisdiction of the appellant and, Section 167(4) (c) of the Act specifically, ousts the appellant’s jurisdiction where a contract is signed in accordance with Section 135 of the Act. Section 135 in this regard sets out various requirements to be met in the creation and signing of procurement contracts, and an ordinary and purposive interpretation of section 167(4)is that the appellant is required to inquire into whether a procurement contract has been signed in accordance with section 135 of the Act when deciding on whether it has jurisdiction to hear and determine a request for review filed before it in cases where a contract has already been signed, and its jurisdiction is only ousted once this preliminary inquiry establishes that the provisions on creation of a procurement contract under Section 135 of the Act have been met, or where it makes an error as to the existence of this statutory precondition.
Indeed in the case of Ederman Property Limited v Lordship Africa Limited & 2 others [2019] eKLR, where a similar question arose as to whether the Appellant had properly declined jurisdiction in a case where a contract had been signed, this Court stated thus: -
“…The learned Judge who heard the motion identified as an important question the determination of whether the 2nd respondent committed an error of law when it declined jurisdiction to entertain the application for review because a contract had already been entered into and the application was filed outside fourteen (14) days…
The review body is not allowed to consider a review where a contract has been signed in accordance with Section 135 of the Act…..
From the above decision, coupled with a fresh reading of section 167 of the PPADA, it remains binding that once a contract is signed pursuant to procurement process and as wa sin this case whether the contract was being performed by the contractor before it faced financial challenges, then the matter is outside the PPARB. In other words, the Review Board’ jurisdiction is ousted completely and the only avenue for the party aggrieved is the Court.
However, the Court in the above case did not prescribe that where a contract was already being performed and a party to the contract fails to perform their part of the bargain or breaches the contract by readvertising the tender for completion of the project, then the aggrieved party must come to this Court by way of judicial review. That understanding in my view would be a mis apprehension of the judgment in the Amazon Transporters Limited Case.
This leads me to the conclusion that the 1 st ground of the preliminary objection fails and it is dismissed.
On the question of whether this judicial review Court can determine the dispute between the parties to a contract where the 1 st respondent has readvertised an ongoing project for completion yet the contractor is still on site, although the ground was not raised in writing, the applicant raised this issue but went ahead to argue in submission that in any event, it has an existing contract with the 1 st respondent and there were ongoing works hence the 1s respondent could not readvertise the tender and that is the gist of these proceedings.
In my view, that question of existence of the contract between the applicant and the Judiciary is not in issue because it is what the applicant pleaded hence the respondents could still raise the objection as to jurisdiction of a judicial review Court where the dispute concerns contractual obligations of parties to a contract. Furthermore, the applicant’s counsel submitted at length in response to this issue raised by the respondent’s counsel. Additionally, as the respondent’s notice of preliminary objection in ground 1 simply stated that the court did not have jurisdiction to hear and determine the matter, the respondents were not tied to any specific jurisdictional issue in their submissions, noting that the issue of the existence of a contract between the parties was not a new matter or issue between the parties.
I therefore find the objection to be well taken noting that a point of law especially that touching on jurisdiction of the court can be taken any stage of the proceedings. This is so, considering that jurisdiction is everything without which a court of law has no power to do more, than downing its tools and neither can a court of law arrogate itself jurisdiction that it does not have.
The Court of Appeal in Barclays Bank of Kenya vs Pyritic Guards Limited [2015] eKLR had this to say concerning the stage at which a point of law can be raised:
“It is also trite law that a point of law can be raised at any stage even though not raised before the court of first instance. The Court can also on its own motion raise a point of law at any point and make a determination based on the same even where such point has not been canvassed by the parties. The learned judge did not therefore do anything outrageous by raising the issue of non-compliance with Regulation 79 of Table A of the Companies Act and acting on it.”
Neither can parties to a dispute confer jurisdiction to a court. It is the duty of the court to interrogate whether it has jurisdiction to entertain a dispute before it to avoid a situation where it arrogates itself jurisdiction which it does not have. (See The Supreme Court’s decision in Samuel Kamau Macharia & Another v Kenya commercial Bank & 2 Others, SC Application No. 2 of 2011; [2012] eKLR.)
On the other hand, a court of law should not decline jurisdiction where it is clear that it is possessed of such jurisdiction to entertain a dispute.
In the instant case and from the pleaded facts, it is clear that the applicant is lamenting that the 1 st respondent has readvertised a tender for completion of a court house which the applicant is in the process of constructing as agreed between the parties, although it admits that there are financial challenges thereby leading to delay in meeting the completion timeline as agreed in the contract.
The question is whether that dispute is one that judicial review Court should entertain. In my view, that is a purely contractual dispute which judicial review cannot resolve.
Besides, in as much as judicial review is a constitutional remedy, it is not every time one claims that their rights and, in this case, the rights arise from a contract entered into between the judiciary and the applicant, that they must approach the court by way of judicial review or constitutional petitions. I am fortified on this point by the decision in Greater Busoga Sugarcane Growers Co-op Union v UDC & Others (Misc. App. No. 129/2024 where the High Court in our neighbouring jurisdiction in Uganda stated, persuasively, that judicial review was not available to enforce private contractual rights against a public body.
The Court stated as follows and I find this to be good law that:
“It is settled law in Uganda, as was held in High Court Misc. Cause No. 0003/2016: Arua Kubala Park Operators And Market Vendors’ Cooperative Society Limited v Arua Municipal Council, which quoted with approval R v East Berkshire Health Authority Ex Parte Walsh [1984] 3 WLR 818, that the remedy of judicial review is only available where the issue is of breach of “public law”, and not of breach of a “private law” obligation. To bring an action for judicial review, it is a requirement that the right sought to be protected is not of a personal and individual nature but a public one enjoyed by the public at large. According to of the text Public Law in East Africa, Ssekaana Musa, 2009, Law Africa Publishing, the learned author states, at page 36, that 2 (two) things must be established for judicial review to be available, 1) the body under challenge must be a public body whose activities can be controlled by judicial review, 2) the subject matter of the challenge must involve claims based on public law principles, not the enforcement of private law rights. Public law is the system which enforces the proper performance by public bodies of the duties which they owe the public. On the other hand, private law is concerned with enforcement of personal rights of persons, human or juridical, such as those emanating under property, contract, duty of care under tort and mainly regulates relations between private persons: Arua Kubala Park Operators And Market Vendors’ Cooperative Society Limited v Arua Municipal Council. (supra) In Arua Kubala Park Operators And Market Vendors’ Cooperative Society Limited v Arua Municipal Council (Supra), the Honourable Mr. Justice Stephen Mubiru held that where a relationship is regulated by the law of contract, like in the instant Application, administrative law remedies should generally not be available. The Learned Judge further held that it is important that parties are held to their contractual obligations through ordinary suits and not by invoking public law remedies.
A party should not take advantage of public law simply because it contracted with a public body, and thereby obtain an advantage in the enforcement of that contract, that would otherwise not be available against a non-public body or private person. The subject matter of the claim being pursued in the judicial review application must involve strictly matters of public law not private law. Public bodies (like private bodies) may enter into contracts or commit torts. Individuals may only be seeking to enforce essentially private law rights. Judicial review is not available to enforce purely private law rights. Contractual and commercial obligations are enforceable by ordinary action and not by judicial review. See R v Lord Chancellor ex p. Hubbit and Saunders [1993] C.O.D 326.”
On account that the applicant in seeking to prohibit the 1 st respondent from retendering for construction of a courthouse when it has an existing ongoing contract with the applicant, I find that the applicant is seeking enforce a private contract through judicial review which is not permitted in the circumstances of this case. Kemei J in Daniel Mutisya Kivuva v Machakos Golf Club [2019] KEHC 1262 (KLR) had this to say, persuasively, in a constitutional petition
“The application seems to be a judicial review camouflaged as a constitutional petition as judicial review is not available to the petitioner. Judicial review is not available to enforce purely private law rights. Contractual and commercial obligations are enforceable by ordinary action and not by judicial review . See R v Lord Chancellor ex parte Hibbit and Saunders [1993] COD 326.”
Additionally, since the 1st respondent did not owe any delimited statutory duty to the applicant, the Order of Mandamus as intended is legally untenable. See the Supreme Court decision in SGS KENYA LIMITED and ENERGY REGULATORY COMMISSION, PUBLIC PROCUREMENT ADMINISTRATIVE REVIEW BOARD and INTERTREK TESTING SERVICES-SC PETITION NO. 2 OF 2019 at para [45].
The South African case of Ndlovu and Another v Nwaeze and Others (3010/2015) [2024] ZAGPJHC 761 (21 August 2024) is also instructive and persuasive on this aspect where the Court stated as follows at paragraph 34 of the Judgment:
“[34] It is trite that a decision by a contracting party to cancel a contract concluded between two private parties, cannot form the subject of judicial review – the power of courts to review the lawfulness, reasonableness and procedural fairness of decisions or actions taken by public bodies.
[35] In Strachan v Prinsloo [2] The court held that to determine “if cancellation was justified the other test to apply was whether the plaintiff had failed to perform a vital term, expressed or implied through the agreement the most important factor and in deciding whether such a term was vital was the question w
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IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW DIVISION
JUDICIAL REVIEW MISC APPLICATON NO. E154 OF 2025
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
ORDERS OF CERTIORARI, MANDAMUS AND PROHIBITION
AND
IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTION ACT, 2015
AND
IN THE MATTER OF: CIVIL PROCEDURE RULES, ORDER 53
AND
IN THE MATTER OF: THE CONSTITUTION OF KENYA (2010) ARTICLES
2, 10, 22, 23, 24, 25, 27, 28, 32, 36, 38, 47(1) & (2), 48, 50,159,165, 258, 259 AND 260;
AND
ALL OTHER ENABLING PROVISIONS OF THE LAW
AND
IN THE MATTER OF THE PUBLIC PROCUREMENT AND ASSET DISPOSAL ACT, 2015
AND
IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW
REPUBLIC …………………………………………..………. APPLICANT
-VERSUS-
THE JUDICIARY OF KENYA ………………………..1ST RESPONDENT
THE ATTORNEY GENERAL ......................................2ND RESPONDENT
AND
CANARIES HOLDINGS LTD ………..……… EX-PARTE APPLICANT
RULING ON PRELIMINARY OBJECTION DATED 24/11/2025
The applicant vide chamber summons dated 21 st November, 2025 seeks from this Court the following prayers:
Spent
This Honourable Court be pleased to grant the Ex parte Applicant leave to apply for an order of certiorari to bring into this Honourable Court for purposes of being quashed the entire decision of THE JUDICIARY OF KENYA, the Respondent herein, in re-advertising the tender for the completion of Habaswein Law Courts.
This Honourable Court be pleased to grant the Ex parte Applicant leave to apply for an order of mandamus to compel the Respondent to cancel the advert dated 11th November 2025.
An Order of Mandamus do issue compelling the Respondents to accord the Applicant fair hearing and resolve the issues relating to the existing contract.
The leave sought do operate as a stay of the entire decision of THE JUDICIARY OF KENYA, the Respondent herein in the advert dated 11th November 2025, re-advertising the tender for the completion of Habaswein Law Courts.
Any other orders as the Court may deem fit to grant.
The cost of this Application be provided for.
The application is predicated on the grounds contained in the statutory statement and verified by the affidavit sworn by ABDIHAKIM A. ADAN.
The facts surrounding the application is that the Applicant was awarded the tender for the construction of Habaswein Law Courts after a competitive process, following which a contract dated 8th December 2022 was formally executed. Thereafter, the Applicant mobilized to site, deployed labour, equipment and materials, and commenced works. The applicant claims that it has completed the excavations and the steel reinforcement to raft foundation and related basement works for the structure.
That on or about February 2025, the Applicant and the Respondent have held meetings to discuss the prospects of the completion of the project due to budgetary constraints facing the contracting authority, upon which the Applicant wrote a letter dated 17th March 2025 to the Respondent reminding the Respondent of the effect of the budgetary constraints on the project timelines and the continued losses on the company. The Applicant further requested the Respondent to confirm the availability of funds considering earlier requests for payments processing were delayed for a significant period.
That the Respondent via a letter dated 3rd April 2025 confirmed that they could only pay for the value of works done for the concreting of the raft foundations of the project this financial year. That the Applicant informed the Respondent the extended period required to complete the project in light of the ongoing budgetary constraints and the need to extensively engage on this issue.
That the Applicant further communicated its readiness to complete the minimal assignment of casting of raft foundations via an email dated 16th June 2025, in which the Respondent was notified of the date of concreting and the need to urgently provide concurrence to proceed from their technical team on the planned works and confirmation of the Respondent’s ground team to supervise the exercise, but that the Applicant is yet to receive any communication on their last communication or any termination of their contract.
The applicant contends that at no time did the Respondent invoke or comply with the statutory procedures for termination or cancellation of the contract under sections 63, 135, 139 and 153 of the PPADA, 2015 and the contract document.
It is alleged that the Respondent instead recently issued an advert dated 11th November 2025 in the MyGOV advertisement platform for the proposed completion of Habaswein Law Courts and set the tender deadline as 25th November 2025, without communication or justification, amounting to an unlawful constructive termination of the subsisting contract, yet the Applicant is in possession of site and continues to incur significant site expenses including labour costs, machinery maintenance costs, security and other expenses necessitated by the ongoing project obligations.
The Applicant claims that it has completed other substantial works which no payment has been made and that the Respondent indicated were to be considered in a subsequent certificate of payment as and when funds are available.
The applicants claims that the re-advertised tender is scheduled to close on 25th November 2025, presenting imminent risk that the Respondent may unlawfully proceed to evaluate and award a parallel contract, in violation of constitutional and statutory principles including: Article 10 on rule of law, transparency and accountability; Article 47 on fair administrative action, Article 227 on fairness and equity in public procurement; Sections 4,5,6, and 7 of the Fair Administrative Action Act; Sections 63, 135,139 and 153 of the PPADA; the doctrine of legitimate expectation and the legal principle against irrational and arbitrary administrative conduct.
It is further alleged that the Respondent violated and continues to violate the provisions of Section (4) of the Fair Administrative Action Act by not affording the Ex-Parte Applicant the right and opportunity to be heard which failure adversely affected the rights of the Ex-Parte Applicant.
That therefore, unless the orders sought are granted, the Ex-parte Applicant stands to suffer irreparable loss and damage and that it is in the best interest of justice and fairness for this application to be heard urgently and that no one will suffer irreparable damage.
The applicant therefore asserts that the actions by the respondents are in abuse of discretion and error of law and are arbitrary, irrational and biased and should be quashed.
When the matter came up before me under certificate of urgency on 21/11/2025, I did not certify it as urgent. I however directed the applicant to serve the respondent forthwith for interpartes directions on 25 th November, 2025.
On 24 th November, 2025, the respondent filed a notice of preliminary objection to the chamber summons contending that:
The court is devoid of jurisdiction to entertain the application
The application as filed offends the provisions of section 9(2) of the Fair Administrative Action Act
The application is fatally defective, premature, incompetent and an abuse of the court process and ought to be struck out with costs to the respondent.
The parties’ counsel agreed to immediately canvass the preliminary objection and the was argued orally on 25 th November, 2025 with Mr. Akach submitting for the applicant while Mr. Munene Wanjohi submitted for the respondents in support of the notice of preliminary objection.
Mr. Munene submitted, reiterating the grounds in the preliminary objection, emphasizing that the application offends section 167(1) of the PPADA and section 9(2) of the Fair Administrative Action Act. Further, that there being a contract between the parties, the applicant ought to have moved to the Commercial Division of the High Court and that there are other available remedies for the applicant but not Judicial review. Further, that no administrative decision was taken by the judiciary capable of judicial review remedy.
On behalf of the applicant, Mr. Akach opposed the preliminary objection submitting that the issue of there being a contract between the parties was not in the Preliminary objection. That section 167(1) of the PPADA only applies to tenderers or candidates in a procurement process to move to the review Board but that in this case, the exparte applicant already has an existing contract and ongoing works in respect of the tender that the 1 st respondent is advertising afresh. He relied on the case of Amazon Transporters Ltd v PPARB and 2 others and Jenigo enterprises Ltd. Misc. E025 of 2025 at paras 74 -84 where this Court explained section 167(1) and 167 (4) (c) of the PPADA and on what can go to the review Board and what can go to judicial review.
Counsel submitted that the administrative decision is the retender advertisement by the judiciary when there is an existing contract between the parties hence the matter is for judicial review not for the Review Board. He urged the court to dismiss the preliminary objection.
In a rejoinder, Mr. Munene submitted that a preliminary objection can be raised either orally or in writing and that the issue of a contract is a point of law. He defined a candidate as per the PPADA as a person who has collected documents from the procuring entity. That there is attender notice which automatically gives the applicant locus to approach the Review Board. He prayed that the preliminary objection be allowed as prayed with costs to the respondent.
Analysis and Determination
I have considered the preliminary objection raised by the respondents and the response thereto in the oral submissions and the applicable law. The issue for consideration is whether the preliminary objection is merited and if so, what orders this court should make.
A Preliminary Objection has been defined in the locus classicus case of Mukisa Biscuit Company v Westend Distributor Limited (1969) EA 696 as follows:
“A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”
In John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others (2021) KESC 39 (KLR) the Supreme Court of Kenya held that:
‘A preliminary objection consisted of a point of law which had been pleaded, or which arose by clear implication out of pleadings, and which if argued as a preliminary point could dispose of the suit.’
In this case, the respondents have raised a preliminary objection concerning jurisdiction of this Court to hear and determine these proceedings. They have cited statutory provisions and also contended that the matter squarely falls within the commercial division of the High Court because it concerns an existing contract between the parties to the contract.
In the statutory provisions cited, the respondents contend that the matter falls within the premise of the Public Procurement and Asset Disposal Act hence it should have been filed before the Public Procurement Administrative Review Board (PPARB). Further, that the applicant offends section 9(2) of the Fair Administrative Action Act which mandates exhaustion of alternative dispute resolution mechanisms.
In Owners of Motor Vessel ‘Lilian S’ v Caltex Oil (Kenya) Ltd [1989] 1 KLR the Court of Appeal had this to say, whether an objection to jurisdiction amounted to a pure point of law for determination in the first instance:
“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it at the moment it holds the opinion that it is without jurisdiction.”
Accordingly, I am satisfied that the preliminary objection raised on the basis that this Court lacks jurisdiction is a pure point of law to be taken upfront before delving into any merits and only after the preliminary objection is overruled can the court determine the merits of the case.
In this case, the respondents contend that there is no administrative decision taken by the judiciary in readvertising the tender for construction of the Court house at Habaswein and that if there was any such decision then the forum for resolution is the PPARB since the tender has been readvertised. The applicant on the other hand submits that the applicant is not a candidate in the readvertised tender and that there is an already existing contract between the parties yet the 1 st respondent is readvertising for the same project which is ongoing although facing budgetary challenges, an issue the parties had discussed with a view to resolving, according to the pleadings by the applicant.
In resolving this first ground, I must reproduce what section 167 of the Public Procurement Asset Disposal Act (PPADA) as a whole provides, to avoid selective reading and reliance on statutory provisions and it is as follows:
167. Request for a review
(1) Subject to the provisions of this Part, a candidate or a tenderer, who claims to have suffered or to risk suffering, loss or damage due to the breach of a duty imposed on a procuring entity by this Act or the Regulations, may seek administrative review within fourteen days of notification of award or date of occurrence of the alleged breach at any stage of the procurement process, or disposal process as in such manner as may be prescribed.
(2) A request for review shall be accompanied by such refundable deposit as may be prescribed in the regulations, and such deposit shall not be less than ten per cent of the cost of the contract: Provided that this shall not apply to tenders reserved for women, youth, persons with disabilities and other disadvantaged groups.
(3) A request for review shall be heard and determined in an open forum unless the matter at hand is likely to compromise national security or the review procedure.
(4) The following matters shall not be subject to the review of procurement proceedings under subsection (1)—
(a) the choice of a procurement method;
(b) a termination of a procurement or asset disposal proceedings in accordance with section 63 of this Act; and
(c) where a contract is signed in accordance with section 135 of this Act.
In the Amazon Transporters Limited v Public Procurement Administrative Review Board & 2 others; Jennygo Enterprises Limited (Interested Party) (Miscellaneous Application E025 of 2025) [2025] KEHC 4664 (KLR) (Judicial Review) (9 April 2025) (Judgment), this Court, citing many other binding decisions of the Court of Appeal, comprehensively held as follows, concerning jurisdiction of the PPARB under section 167 (1) of the PPADA:
This in my view forms the other critical issue for consideration. The issue has been canvassed by the parties. Section 167(4)(c) of the PPADA provides that once a procurement contract is signed, the Review Board loses its jurisdiction to hear a review unless the contract was signed outside the tender’s validity period.
In the present case, the contract was signed on 14th August 2024, within the validity period of the tender. The Applicant’s contention is that the Board’s dismissal of its Request for Review, based on the contract being signed, was erroneous. The Applicant argues that despite the signing of the contract, the Review Board still had the jurisdiction to examine whether the contract was legally valid, particularly in light of alleged non-compliance with statutory procurement requirements.
This Court finds merit in the Applicant’s argument, particularly given the jurisprudence espoused in Public Procurement Administrative Review Board v Four M Insurance Brokers Limited & 3 others supra where the court also observed as follows:
“ On the second limb of jurisdiction relating to the existence of a signed contract, we note that the learned Judge of the superior Court held as follows on this issue:- “… 217. In Republic vs. Public Procurement Administrative Review Board exparte Madison General Insurance Kenya Limited; Vice Chancellor Kenyatta University & Another (Interested Parties) (2022) eKLR where Justice Ngaah held as follows:- “it could be that indeed the contract was invalid, but in my humble view, considering the provisions of Section 167(4)(c) once a contract has been signed, the appropriate forum before which the question of validity of a signed contract can be determined is this Honorable Court. It does not necessarily follow that an aggrieved party is left without a remedy merely because a contract is signed. Grievances arising out of a signed contract will certainly be addressed but not before the Public Procurement Administrative Review Board. They will be addressed before the court which only has the jurisdiction to determine such disputes related to the alleged grievances.” 2
The Board lacked jurisdiction to hear and determine the application by the 2nd Respondent under Section 167(4) of the Act, to entertain the application given that there was already a signed contract – signed on 2nd October 2023, between the ex-parte Applicant and the 3rd and 4th Respondent.
Given that the Contract was executed between the Applicant and the 4th Respondent, on 2 nd October 2023,theBoard lacked jurisdiction to adjudicate over any request for review led after the execution of a contract pursuant to the provisions of Section 167(4)(c) of the Act and I so hold…”
As already observed, the appellant’s jurisdiction emanates from Section 167(1) of the Act. Section 167(4) provides matters that shall not be subject to the jurisdiction of the appellant and, Section 167(4) (c) of the Act specifically, ousts the appellant’s jurisdiction where a contract is signed in accordance with Section 135 of the Act. Section 135 in this regard sets out various requirements to be met in the creation and signing of procurement contracts, and an ordinary and purposive interpretation of section 167(4)is that the appellant is required to inquire into whether a procurement contract has been signed in accordance with section 135 of the Act when deciding on whether it has jurisdiction to hear and determine a request for review filed before it in cases where a contract has already been signed, and its jurisdiction is only ousted once this preliminary inquiry establishes that the provisions on creation of a procurement contract under Section 135 of the Act have been met, or where it makes an error as to the existence of this statutory precondition.
Indeed in the case of Ederman Property Limited v Lordship Africa Limited & 2 others [2019] eKLR, where a similar question arose as to whether the Appellant had properly declined jurisdiction in a case where a contract had been signed, this Court stated thus: -
“…The learned Judge who heard the motion identified as an important question the determination of whether the 2nd respondent committed an error of law when it declined jurisdiction to entertain the application for review because a contract had already been entered into and the application was filed outside fourteen (14) days…
The review body is not allowed to consider a review where a contract has been signed in accordance with Section 135 of the Act…..
From the above decision, coupled with a fresh reading of section 167 of the PPADA, it remains binding that once a contract is signed pursuant to procurement process and as wa sin this case whether the contract was being performed by the contractor before it faced financial challenges, then the matter is outside the PPARB. In other words, the Review Board’ jurisdiction is ousted completely and the only avenue for the party aggrieved is the Court.
However, the Court in the above case did not prescribe that where a contract was already being performed and a party to the contract fails to perform their part of the bargain or breaches the contract by readvertising the tender for completion of the project, then the aggrieved party must come to this Court by way of judicial review. That understanding in my view would be a mis apprehension of the judgment in the Amazon Transporters Limited Case.
This leads me to the conclusion that the 1 st ground of the preliminary objection fails and it is dismissed.
On the question of whether this judicial review Court can determine the dispute between the parties to a contract where the 1 st respondent has readvertised an ongoing project for completion yet the contractor is still on site, although the ground was not raised in writing, the applicant raised this issue but went ahead to argue in submission that in any event, it has an existing contract with the 1 st respondent and there were ongoing works hence the 1s respondent could not readvertise the tender and that is the gist of these proceedings.
In my view, that question of existence of the contract between the applicant and the Judiciary is not in issue because it is what the applicant pleaded hence the respondents could still raise the objection as to jurisdiction of a judicial review Court where the dispute concerns contractual obligations of parties to a contract. Furthermore, the applicant’s counsel submitted at length in response to this issue raised by the respondent’s counsel. Additionally, as the respondent’s notice of preliminary objection in ground 1 simply stated that the court did not have jurisdiction to hear and determine the matter, the respondents were not tied to any specific jurisdictional issue in their submissions, noting that the issue of the existence of a contract between the parties was not a new matter or issue between the parties.
I therefore find the objection to be well taken noting that a point of law especially that touching on jurisdiction of the court can be taken any stage of the proceedings. This is so, considering that jurisdiction is everything without which a court of law has no power to do more, than downing its tools and neither can a court of law arrogate itself jurisdiction that it does not have.
The Court of Appeal in Barclays Bank of Kenya vs Pyritic Guards Limited [2015] eKLR had this to say concerning the stage at which a point of law can be raised:
“It is also trite law that a point of law can be raised at any stage even though not raised before the court of first instance. The Court can also on its own motion raise a point of law at any point and make a determination based on the same even where such point has not been canvassed by the parties. The learned judge did not therefore do anything outrageous by raising the issue of non-compliance with Regulation 79 of Table A of the Companies Act and acting on it.”
Neither can parties to a dispute confer jurisdiction to a court. It is the duty of the court to interrogate whether it has jurisdiction to entertain a dispute before it to avoid a situation where it arrogates itself jurisdiction which it does not have. (See The Supreme Court’s decision in Samuel Kamau Macharia & Another v Kenya commercial Bank & 2 Others, SC Application No. 2 of 2011; [2012] eKLR.)
On the other hand, a court of law should not decline jurisdiction where it is clear that it is possessed of such jurisdiction to entertain a dispute.
In the instant case and from the pleaded facts, it is clear that the applicant is lamenting that the 1 st respondent has readvertised a tender for completion of a court house which the applicant is in the process of constructing as agreed between the parties, although it admits that there are financial challenges thereby leading to delay in meeting the completion timeline as agreed in the contract.
The question is whether that dispute is one that judicial review Court should entertain. In my view, that is a purely contractual dispute which judicial review cannot resolve.
Besides, in as much as judicial review is a constitutional remedy, it is not every time one claims that their rights and, in this case, the rights arise from a contract entered into between the judiciary and the applicant, that they must approach the court by way of judicial review or constitutional petitions. I am fortified on this point by the decision in Greater Busoga Sugarcane Growers Co-op Union v UDC & Others (Misc. App. No. 129/2024 where the High Court in our neighbouring jurisdiction in Uganda stated, persuasively, that judicial review was not available to enforce private contractual rights against a public body.
The Court stated as follows and I find this to be good law that:
“It is settled law in Uganda, as was held in High Court Misc. Cause No. 0003/2016: Arua Kubala Park Operators And Market Vendors’ Cooperative Society Limited v Arua Municipal Council, which quoted with approval R v East Berkshire Health Authority Ex Parte Walsh [1984] 3 WLR 818, that the remedy of judicial review is only available where the issue is of breach of “public law”, and not of breach of a “private law” obligation. To bring an action for judicial review, it is a requirement that the right sought to be protected is not of a personal and individual nature but a public one enjoyed by the public at large. According to of the text Public Law in East Africa, Ssekaana Musa, 2009, Law Africa Publishing, the learned author states, at page 36, that 2 (two) things must be established for judicial review to be available, 1) the body under challenge must be a public body whose activities can be controlled by judicial review, 2) the subject matter of the challenge must involve claims based on public law principles, not the enforcement of private law rights. Public law is the system which enforces the proper performance by public bodies of the duties which they owe the public. On the other hand, private law is concerned with enforcement of personal rights of persons, human or juridical, such as those emanating under property, contract, duty of care under tort and mainly regulates relations between private persons: Arua Kubala Park Operators And Market Vendors’ Cooperative Society Limited v Arua Municipal Council. (supra) In Arua Kubala Park Operators And Market Vendors’ Cooperative Society Limited v Arua Municipal Council (Supra), the Honourable Mr. Justice Stephen Mubiru held that where a relationship is regulated by the law of contract, like in the instant Application, administrative law remedies should generally not be available. The Learned Judge further held that it is important that parties are held to their contractual obligations through ordinary suits and not by invoking public law remedies.
A party should not take advantage of public law simply because it contracted with a public body, and thereby obtain an advantage in the enforcement of that contract, that would otherwise not be available against a non-public body or private person. The subject matter of the claim being pursued in the judicial review application must involve strictly matters of public law not private law. Public bodies (like private bodies) may enter into contracts or commit torts. Individuals may only be seeking to enforce essentially private law rights. Judicial review is not available to enforce purely private law rights. Contractual and commercial obligations are enforceable by ordinary action and not by judicial review. See R v Lord Chancellor ex p. Hubbit and Saunders [1993] C.O.D 326.”
On account that the applicant in seeking to prohibit the 1 st respondent from retendering for construction of a courthouse when it has an existing ongoing contract with the applicant, I find that the applicant is seeking enforce a private contract through judicial review which is not permitted in the circumstances of this case. Kemei J in Daniel Mutisya Kivuva v Machakos Golf Club [2019] KEHC 1262 (KLR) had this to say, persuasively, in a constitutional petition
“The application seems to be a judicial review camouflaged as a constitutional petition as judicial review is not available to the petitioner. Judicial review is not available to enforce purely private law rights. Contractual and commercial obligations are enforceable by ordinary action and not by judicial review . See R v Lord Chancellor ex parte Hibbit and Saunders [1993] COD 326.”
Additionally, since the 1st respondent did not owe any delimited statutory duty to the applicant, the Order of Mandamus as intended is legally untenable. See the Supreme Court decision in SGS KENYA LIMITED and ENERGY REGULATORY COMMISSION, PUBLIC PROCUREMENT ADMINISTRATIVE REVIEW BOARD and INTERTREK TESTING SERVICES-SC PETITION NO. 2 OF 2019 at para [45].
The South African case of Ndlovu and Another v Nwaeze and Others (3010/2015) [2024] ZAGPJHC 761 (21 August 2024) is also instructive and persuasive on this aspect where the Court stated as follows at paragraph 34 of the Judgment:
“[34] It is trite that a decision by a contracting party to cancel a contract concluded between two private parties, cannot form the subject of judicial review – the power of courts to review the lawfulness, reasonableness and procedural fairness of decisions or actions taken by public bodies.
[35] In Strachan v Prinsloo [2] The court held that to determine “if cancellation was justified the other test to apply was whether the plaintiff had failed to perform a vital term, expressed or implied through the agreement the most important factor and in deciding whether such a term was vital was the question w
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