JUDGMENT
A. INTRODUCTION
1. The Petitioners, Reuben Marube Juma, Stanley Otete Mokoro and Dennis Omwamba Masange, moved this Court by way of an Amended Petition dated 8th November 2024 challenging the constitutionality and legality of the procurement process undertaken in respect of several school construction projects within Bomachoge Borabu Constituency.
2. The Respondents are the Fund Account Manager, National Government Constituencies Development Fund (NG-CDF) Bomachoge Borabu Constituency; Hon. Obadiah Barongo (Member of Parliament); the NG-CDF Board; the Sub-County Procurement Officer; and the Sub-County Accountant.
3. The Petition is anchored on alleged violations of Articles 10, 27, 35, 47, 201, 227 and 232 of the Constitution.
4. The Petitioners seek, inter alia, declaratory reliefs on unconstitutionality, orders of certiorari, mandamus, and prohibition, as well as orders for fresh procurement and equitable distribution of NG-CDF resources.
B. RESPONDENTS’ CASE
5. The Respondents oppose the Petition and contend that:
a. The procurement process was lawful, transparent, and compliant with the Constitution and the Public Procurement and Asset Disposal Act, 2015;
b. Public participation was conducted through stakeholder engagements and ward-level consultations;
c. The projects are substantially complete or completed, rendering the reliefs sought impracticable;
d. The Petition is incompetent for failure to exhaust statutory dispute resolution mechanisms under procurement law;
e. Certain Respondents, particularly the 2nd Respondent (Member of Parliament), were improperly joined.
5. The 1st, 3rd and 4th Respondents filed the motion dated 23rd October, 2024 and thereafter filed their Submissions in support of the same dated 25th October, 2024 on the grounds that the Petition is incompetent and incurably defective, as it offends the mandatory procedure and remedy provided for under Section 56 of the National Government Constituencies Development Fund Act No. 30 of 2015; and for want of this Court’s Jurisdiction.
6. This court directed that , the applications dated 5th May 2025 for contempt filed by the 2nd petitioner and the one dated 24th October 2024 seeking to strike out the petition filed by the 1st, 3rd , 4th and 5th respondents to be determined together with the Petition dated 14th August 2024 .
CONTEMPT APPLICATION DATED 5TH MAY 2025
(i) Applicable Principles
7. The law on contempt of court is settled. An applicant must establish:
1. existence of a clear and unambiguous court order;
2. knowledge of the order by the alleged contemnor; and
3. willful disobedience.
8. In Gatharia K. Mutikika v Baharini Farm Ltd [1985] KLR 227, the Court of Appeal held that contempt must be proved to a standard higher than a balance of probabilities, though not beyond reasonable doubt, given its quasi-criminal nature.
(ii) Analysis
9. The status quo order issued on 10th March 2025 was made in the presence of counsel and subsequently served, as evidenced by the return of service.
10. The Court is therefore satisfied that the Respondents had knowledge of the order.
11. However, on willful disobedience, the evidence tendered consists primarily of photographs of ongoing construction.
12. The Applicant failed to demonstrate:
• the state of the projects as at the date of the order; and
• that the alleged works were undertaken after issuance of the order.
11. Further, no direct nexus was established between the Respondents and the alleged continued construction.
Determination
12. The Applicant has failed to discharge the heightened burden of proof required in contempt proceedings.
Orders
13. The Notice of Motion dated 5th May 2025 is dismissed with costs to the Respondents.
RULING ON APPLICATION DATED 24TH OCTOBER 2024 (STRIKING OUT)
(i) Applicable Law
14. A. INTRODUCTION
15. Before Court is the Notice of Motion dated 14th August 2024 filed by the 1st, 3rd, 4th and 5th Respondents seeking orders that the petition as against them be struck out for want of a cause of action and that costs be awarded to them.
16. The application is premised on the grounds that the said Respondents have been improperly joined to these proceedings and bear no legal responsibility for the matters complained of in the petition.
17. The application is supported by the affidavit of Michael Odit Onyango, the 1st Applicant/ Respondent, sworn on even date.
18. The application is opposed by the Petitioners through a replying affidavit sworn by Dennis Omwamba Masenge, the 1st Petitioner, dated 9th April 2025.
THE 1ST, 3RD , 4TH AND 5TH APPLICANTS/RESPONDENTS CASE
19. The Respondents contend that:
a. The 1st Respondent is merely a custodian of NG-CDF funds;
b. The 4th and 5th Respondents are public officers deployed from national government ministries without independent decision-making authority in the matters complained of;
c. The NG-CDF Act, 2015 clearly sets out the persons mandated to sit in the NG-CDF Committee and undertake decision-making;No cause of action is disclosed against them.
d. It is their position that their inclusion in the petition is misconceived, frivolous and an abuse of the court process, and that the petition against them ought to be struck out with costs.
THE PETITIONER/RESPONDENTS CASE
20. The Petitioners oppose the application and argue that:
i. The Respondents have misled the Court regarding their role in the impugned procurement processes;
ii. Documentary evidence annexed to the replying affidavit demonstrates their active participation in procurement, including tendering, evaluation and decision-making;
iii. The petition is anchored on violations of procurement law and the NG-CDF Act, which impose statutory duties upon the Respondents;
iv. The issues raised involve public interest, transparency and accountability in the use of public funds.
v. The Petitioners further submit that the issue of misjoinder is a mere technicality which cannot override the need to determine substantive constitutional questions.
ISSUES FOR DETERMINATION
13. The sole issue for determination is:
a. Whether the petition against the 1st, 3rd, 4th and 5th Respondents should be struck out for want of a cause of action or misjoinder.
ANALYSIS AND DETERMINATION
(Principles on striking out pleadings
14. The law on striking out pleadings is settled. In DT Dobie & Company (Kenya) Ltd v Muchina [1982] KLR 1, the Court held that:
“No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action.”
15. This principle has been consistently applied to emphasize that striking out is a drastic remedy to be exercised sparingly.
Misjoinder of parties
16. Order 1 Rule 9 of the Civil Procedure Rules provides that:
“No suit shall be defeated by reason of misjoinder or non-joinder of parties.”
17. Similarly, Article 159(2)(d) of the Constitution enjoins this Court to administer justice without undue regard to procedural technicalities.
Whether a cause of action is disclosed
18. The Respondents argue that they are mere custodians or officers without decision-making roles. However, the Petitioners have placed before Court documentary material suggesting that the Respondents were involved in procurement processes including evaluation and decision-making.
19. At this stage, the Court is not required to make definitive findings of fact but only to determine whether the pleadings disclose a triable issue.
20. In Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR, the Court of Appeal emphasized that constitutional petitions should not be shut out where substantive issues are raised for determination.
21. Further, Article 227 of the Constitution requires that public procurement be conducted in accordance with fairness, transparency, competitiveness and cost-effectiveness.
22. Allegations of violation of these principles, particularly in the context of public funds under the NG-CDF, raise serious constitutional and statutory questions which ought to be interrogated at a full hearing.
(iv) Public interest considerations
23. This petition concerns the management and use of public resources, an area of heightened constitutional scrutiny under Article 201 of the Constitution.
24. The Court cannot, at this preliminary stage, shut out parties where there is an allegation that they participated in processes that may have violated procurement law and constitutional principles.
25. To do so would be to prematurely determine contested factual issues without the benefit of a full hearing.
CONCLUSION
26. Having considered the application, affidavits and submissions, this Court finds that:
1. The petition raises arguable and triable issues;
2. The question of the Respondents’ roles for evidence
3. The issue of misjoinder, if any, is not sufficient to warrant
striking out the petition.
ORDERS
27. Accordingly, the Notice of Motion dated 14th August 2024 is hereby:
a) Dismissed;
b) The matter shall proceed to hearing on merit;
c) Each part shall bears his own costs
DETERMINATION OF THE PETITION
ISSUES FOR DETERMINATION
6. Having considered the pleadings, affidavits, submissions, and authorities cited the following issues arise for determination:
a. Whether the Petition meets the threshold of a constitutional petition;
b. Whether the Petitioners exhausted statutory dispute resolution mechanisms;
c. Whether the Court can grant the reliefs sought given the status of the projects;
e. Whether the respondents 2nd Respondent was properly joined;
f. Whether there was compliance with constitutional principles, particularly public participation;
g. Who should bear costs.
D. ANALYSIS AND DETERMINATION
(i) Nature of the Proceedings: Constitutional Petition vs Judicial Review
7. The Petition seeks both constitutional declarations and prerogative orders. The Court must therefore determine whether the matter is properly before it.
8. In Suchan Investment Limited v Ministry of National Heritage & Culture & 3 Others, the Court recognised that while judicial review concerns the legality of decision-making processes, constitutional petitions address violations of rights and fundamental freedoms. The Court further held that, post-2010 Constitution, the two remedies may overlap.
Guided by that authority, and considering Articles 22 and 47 of the Constitution together with the Fair Administrative Action Act, this Court finds that the Petition is properly before it, notwithstanding the inclusion of judicial review remedies.
Constitutional Threshold
9. In Anarita Karimi Njeru v Republic, the Court held that constitutional violations must be pleaded with reasonable precision. This was reaffirmed in Mumo Matemu v Trusted Society of Human Rights Alliance.
10. The Petition herein clearly identifies the constitutional provisions allegedly violated and the manner of violation.
11. The Court therefore finds that the Petition meets the threshold of a constitutional petition.
(ii) Exhaustion of Statutory Remedies
12.The Respondents argue that the Petitioners ought to have first approached the Public Procurement Administrative Review Board (PPARB).
10. The doctrine of exhaustion is well settled. In Speaker of the National Assembly v Karume (1992) KLR, the Court of Appeal held that where a statute provides a clear procedure for redress, that procedure must be strictly followed.
11. Similarly, in Republic v Public Procurement Administrative Review Board & 2 Others Ex parte Pelt Security Services Ltd, Mativo J emphasised that the Review Board is better equipped to handle procurement disputes.
12. While Section 9(4) of the Fair Administrative Action Act allows exemption in exceptional circumstances, such exemption must be formally sought and justified.
13. In the present case:
• No application for exemption was made;
• No exceptional circumstances were demonstrated;
• The dispute is predominantly a procurement dispute.
15. Accordingly, this Court finds that the Petitioners failed to exhaust the available statutory remedies, and improperly invoked this Court’s jurisdiction in the first instance.
(iii) Whether the Reliefs Sought Are Capable of Implementation
16. The Petitioners seek, inter alia, nullification of procurement and an order for fresh tendering.
17. However, evidence on record shows that:
• Contracts have been awarded;
• Projects are complete or substantially complete.
18. Under Sections 167 and 173 of the PPADA, the jurisdiction to annul procurement is limited and time-bound.
19. In Mahasi v Mwachabo Development Forum & 3 Others, the Court held that where projects are completed, orders for re-tendering are academic and incapable of implementation.
20. This Court agrees. The orders sought would be in vain, and the Court does not act in vain.
(v) Whether the Respondents Were Properly Joined
24. The 2nd Respondent (Member of Parliament) denies involvement in procurement.
25. The NG-CDF Act clearly delineates roles:
• NG-CDF Committees and PMCs manage projects;
• Members of Parliament perform legislative and oversight functions.
26. In Institute of Social Accountability & Another v National Assembly & 4 Others [2015] eKLR, the Court held that MPs must not participate in project implementation.
27. No evidence was tendered to establish direct involvement of the 2nd Respondent in procurement. Accordingly, I find that the 2nd Respondent was improperly joined.
28. On whether the 1st, 3rd , 4th and 5th respondents are properly before this court, they alleged that there was no reasonable cause of action against them. The petitioners argued that the 1st, 3rd, 4th and 5th respondent are properly before court as they participated in the procurement process. The 1st and 3rd respondents are fund managers of NG-CDF at the Bomachoge constituency level and they are a role to ensure that the monies are well managed in relation to NG-CDF projects in the Constituency . The 4th respondent is the Kenyenya Sub -County Supplies Chain officer who is the head of procurement in the Sub-county and a crucial member of the procurement committees without whom no procurement process can proceed . The 5th respondent is a sub county accountant who is the custodian of all the monies flowing from the Government to its departments in the sub- county whose authourity is required for release of the said funds .the 1st, 3rd ,4th nd 5th respondents are thus properly before this court by virtue of their mandates
(vi) Public Participation and Constitutional Compliance
29. Public participation is a constitutional imperative under Article 10.
In Robert N. Gakuru & Others v Governor Kiambu County & 3 Others [2014] eKLR, the Court held that public participation must be real, meaningful and not cosmetic.
30. The Respondents produced:
i. Public notices;
ii. Minutes of meetings
iii. Attendance records.
32. The public participation was to be conducted on the schools where the project would be taken and this is not a matter which could viable to take to the general public but community leaders . based on the material before court , it is satisfied that reasonable public participation was undertaken.
E. FINAL DISPOSITION
33. In light of the foregoing findings, this Court concludes that:
a. The dispute falls within the jurisdiction of the PPARB;
b. The Petitioners failed to exhaust statutory remedies;
c. No exceptional circumstances were demonstrated;
d. The reliefs sought are incapable of implementation;
e. The 2nd Respondent was improperly joined;
f. Public participation was reasonably undertaken.
F. ORDER
34. Accordingly, the Court makes the following orders:
a. The Amended Petition dated 8th November 2024 is hereby dismissed;
b. Each party shall bear its own costs, the matter having been brought in the public interest.
T. A. ODERA
JUDGE
10.3.26
DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 10TH DAY OF MARCH 2026 IN THE PRESENCE OF MR ONGITI FOR PETITIONERS , MISS OGETA HOLDING BREIF FOR MR OMWENGA FOR THE 1ST, 3RD, 4TH AND 5TH RESPONDENTS & CA -KIPCHIRCHIR
Ongiti : We thank the court for the judgment and rulings . may they be uploaded on CTS. We seek leave to appeal .
Order : The judgment and rulings be uploaded. Leave to appeal is granted.
T. A ODERA
JUDGE
10.3.26
A. INTRODUCTION
1. The Petitioners, Reuben Marube Juma, Stanley Otete Mokoro and Dennis Omwamba Masange, moved this Court by way of an Amended Petition dated 8th November 2024 challenging the constitutionality and legality of the procurement process undertaken in respect of several school construction projects within Bomachoge Borabu Constituency.
2. The Respondents are the Fund Account Manager, National Government Constituencies Development Fund (NG-CDF) Bomachoge Borabu Constituency; Hon. Obadiah Barongo (Member of Parliament); the NG-CDF Board; the Sub-County Procurement Officer; and the Sub-County Accountant.
3. The Petition is anchored on alleged violations of Articles 10, 27, 35, 47, 201, 227 and 232 of the Constitution.
4. The Petitioners seek, inter alia, declaratory reliefs on unconstitutionality, orders of certiorari, mandamus, and prohibition, as well as orders for fresh procurement and equitable distribution of NG-CDF resources.
B. RESPONDENTS’ CASE
5. The Respondents oppose the Petition and contend that:
a. The procurement process was lawful, transparent, and compliant with the Constitution and the Public Procurement and Asset Disposal Act, 2015;
b. Public participation was conducted through stakeholder engagements and ward-level consultations;
c. The projects are substantially complete or completed, rendering the reliefs sought impracticable;
d. The Petition is incompetent for failure to exhaust statutory dispute resolution mechanisms under procurement law;
e. Certain Respondents, particularly the 2nd Respondent (Member of Parliament), were improperly joined.
5. The 1st, 3rd and 4th Respondents filed the motion dated 23rd October, 2024 and thereafter filed their Submissions in support of the same dated 25th October, 2024 on the grounds that the Petition is incompetent and incurably defective, as it offends the mandatory procedure and remedy provided for under Section 56 of the National Government Constituencies Development Fund Act No. 30 of 2015; and for want of this Court’s Jurisdiction.
6. This court directed that , the applications dated 5th May 2025 for contempt filed by the 2nd petitioner and the one dated 24th October 2024 seeking to strike out the petition filed by the 1st, 3rd , 4th and 5th respondents to be determined together with the Petition dated 14th August 2024 .
CONTEMPT APPLICATION DATED 5TH MAY 2025
(i) Applicable Principles
7. The law on contempt of court is settled. An applicant must establish:
1. existence of a clear and unambiguous court order;
2. knowledge of the order by the alleged contemnor; and
3. willful disobedience.
8. In Gatharia K. Mutikika v Baharini Farm Ltd [1985] KLR 227, the Court of Appeal held that contempt must be proved to a standard higher than a balance of probabilities, though not beyond reasonable doubt, given its quasi-criminal nature.
(ii) Analysis
9. The status quo order issued on 10th March 2025 was made in the presence of counsel and subsequently served, as evidenced by the return of service.
10. The Court is therefore satisfied that the Respondents had knowledge of the order.
11. However, on willful disobedience, the evidence tendered consists primarily of photographs of ongoing construction.
12. The Applicant failed to demonstrate:
• the state of the projects as at the date of the order; and
• that the alleged works were undertaken after issuance of the order.
11. Further, no direct nexus was established between the Respondents and the alleged continued construction.
Determination
12. The Applicant has failed to discharge the heightened burden of proof required in contempt proceedings.
Orders
13. The Notice of Motion dated 5th May 2025 is dismissed with costs to the Respondents.
RULING ON APPLICATION DATED 24TH OCTOBER 2024 (STRIKING OUT)
(i) Applicable Law
14. A. INTRODUCTION
15. Before Court is the Notice of Motion dated 14th August 2024 filed by the 1st, 3rd, 4th and 5th Respondents seeking orders that the petition as against them be struck out for want of a cause of action and that costs be awarded to them.
16. The application is premised on the grounds that the said Respondents have been improperly joined to these proceedings and bear no legal responsibility for the matters complained of in the petition.
17. The application is supported by the affidavit of Michael Odit Onyango, the 1st Applicant/ Respondent, sworn on even date.
18. The application is opposed by the Petitioners through a replying affidavit sworn by Dennis Omwamba Masenge, the 1st Petitioner, dated 9th April 2025.
THE 1ST, 3RD , 4TH AND 5TH APPLICANTS/RESPONDENTS CASE
19. The Respondents contend that:
a. The 1st Respondent is merely a custodian of NG-CDF funds;
b. The 4th and 5th Respondents are public officers deployed from national government ministries without independent decision-making authority in the matters complained of;
c. The NG-CDF Act, 2015 clearly sets out the persons mandated to sit in the NG-CDF Committee and undertake decision-making;No cause of action is disclosed against them.
d. It is their position that their inclusion in the petition is misconceived, frivolous and an abuse of the court process, and that the petition against them ought to be struck out with costs.
THE PETITIONER/RESPONDENTS CASE
20. The Petitioners oppose the application and argue that:
i. The Respondents have misled the Court regarding their role in the impugned procurement processes;
ii. Documentary evidence annexed to the replying affidavit demonstrates their active participation in procurement, including tendering, evaluation and decision-making;
iii. The petition is anchored on violations of procurement law and the NG-CDF Act, which impose statutory duties upon the Respondents;
iv. The issues raised involve public interest, transparency and accountability in the use of public funds.
v. The Petitioners further submit that the issue of misjoinder is a mere technicality which cannot override the need to determine substantive constitutional questions.
ISSUES FOR DETERMINATION
13. The sole issue for determination is:
a. Whether the petition against the 1st, 3rd, 4th and 5th Respondents should be struck out for want of a cause of action or misjoinder.
ANALYSIS AND DETERMINATION
(Principles on striking out pleadings
14. The law on striking out pleadings is settled. In DT Dobie & Company (Kenya) Ltd v Muchina [1982] KLR 1, the Court held that:
“No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action.”
15. This principle has been consistently applied to emphasize that striking out is a drastic remedy to be exercised sparingly.
Misjoinder of parties
16. Order 1 Rule 9 of the Civil Procedure Rules provides that:
“No suit shall be defeated by reason of misjoinder or non-joinder of parties.”
17. Similarly, Article 159(2)(d) of the Constitution enjoins this Court to administer justice without undue regard to procedural technicalities.
Whether a cause of action is disclosed
18. The Respondents argue that they are mere custodians or officers without decision-making roles. However, the Petitioners have placed before Court documentary material suggesting that the Respondents were involved in procurement processes including evaluation and decision-making.
19. At this stage, the Court is not required to make definitive findings of fact but only to determine whether the pleadings disclose a triable issue.
20. In Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR, the Court of Appeal emphasized that constitutional petitions should not be shut out where substantive issues are raised for determination.
21. Further, Article 227 of the Constitution requires that public procurement be conducted in accordance with fairness, transparency, competitiveness and cost-effectiveness.
22. Allegations of violation of these principles, particularly in the context of public funds under the NG-CDF, raise serious constitutional and statutory questions which ought to be interrogated at a full hearing.
(iv) Public interest considerations
23. This petition concerns the management and use of public resources, an area of heightened constitutional scrutiny under Article 201 of the Constitution.
24. The Court cannot, at this preliminary stage, shut out parties where there is an allegation that they participated in processes that may have violated procurement law and constitutional principles.
25. To do so would be to prematurely determine contested factual issues without the benefit of a full hearing.
CONCLUSION
26. Having considered the application, affidavits and submissions, this Court finds that:
1. The petition raises arguable and triable issues;
2. The question of the Respondents’ roles for evidence
3. The issue of misjoinder, if any, is not sufficient to warrant
striking out the petition.
ORDERS
27. Accordingly, the Notice of Motion dated 14th August 2024 is hereby:
a) Dismissed;
b) The matter shall proceed to hearing on merit;
c) Each part shall bears his own costs
DETERMINATION OF THE PETITION
ISSUES FOR DETERMINATION
6. Having considered the pleadings, affidavits, submissions, and authorities cited the following issues arise for determination:
a. Whether the Petition meets the threshold of a constitutional petition;
b. Whether the Petitioners exhausted statutory dispute resolution mechanisms;
c. Whether the Court can grant the reliefs sought given the status of the projects;
e. Whether the respondents 2nd Respondent was properly joined;
f. Whether there was compliance with constitutional principles, particularly public participation;
g. Who should bear costs.
D. ANALYSIS AND DETERMINATION
(i) Nature of the Proceedings: Constitutional Petition vs Judicial Review
7. The Petition seeks both constitutional declarations and prerogative orders. The Court must therefore determine whether the matter is properly before it.
8. In Suchan Investment Limited v Ministry of National Heritage & Culture & 3 Others, the Court recognised that while judicial review concerns the legality of decision-making processes, constitutional petitions address violations of rights and fundamental freedoms. The Court further held that, post-2010 Constitution, the two remedies may overlap.
Guided by that authority, and considering Articles 22 and 47 of the Constitution together with the Fair Administrative Action Act, this Court finds that the Petition is properly before it, notwithstanding the inclusion of judicial review remedies.
Constitutional Threshold
9. In Anarita Karimi Njeru v Republic, the Court held that constitutional violations must be pleaded with reasonable precision. This was reaffirmed in Mumo Matemu v Trusted Society of Human Rights Alliance.
10. The Petition herein clearly identifies the constitutional provisions allegedly violated and the manner of violation.
11. The Court therefore finds that the Petition meets the threshold of a constitutional petition.
(ii) Exhaustion of Statutory Remedies
12.The Respondents argue that the Petitioners ought to have first approached the Public Procurement Administrative Review Board (PPARB).
10. The doctrine of exhaustion is well settled. In Speaker of the National Assembly v Karume (1992) KLR, the Court of Appeal held that where a statute provides a clear procedure for redress, that procedure must be strictly followed.
11. Similarly, in Republic v Public Procurement Administrative Review Board & 2 Others Ex parte Pelt Security Services Ltd, Mativo J emphasised that the Review Board is better equipped to handle procurement disputes.
12. While Section 9(4) of the Fair Administrative Action Act allows exemption in exceptional circumstances, such exemption must be formally sought and justified.
13. In the present case:
• No application for exemption was made;
• No exceptional circumstances were demonstrated;
• The dispute is predominantly a procurement dispute.
15. Accordingly, this Court finds that the Petitioners failed to exhaust the available statutory remedies, and improperly invoked this Court’s jurisdiction in the first instance.
(iii) Whether the Reliefs Sought Are Capable of Implementation
16. The Petitioners seek, inter alia, nullification of procurement and an order for fresh tendering.
17. However, evidence on record shows that:
• Contracts have been awarded;
• Projects are complete or substantially complete.
18. Under Sections 167 and 173 of the PPADA, the jurisdiction to annul procurement is limited and time-bound.
19. In Mahasi v Mwachabo Development Forum & 3 Others, the Court held that where projects are completed, orders for re-tendering are academic and incapable of implementation.
20. This Court agrees. The orders sought would be in vain, and the Court does not act in vain.
(v) Whether the Respondents Were Properly Joined
24. The 2nd Respondent (Member of Parliament) denies involvement in procurement.
25. The NG-CDF Act clearly delineates roles:
• NG-CDF Committees and PMCs manage projects;
• Members of Parliament perform legislative and oversight functions.
26. In Institute of Social Accountability & Another v National Assembly & 4 Others [2015] eKLR, the Court held that MPs must not participate in project implementation.
27. No evidence was tendered to establish direct involvement of the 2nd Respondent in procurement. Accordingly, I find that the 2nd Respondent was improperly joined.
28. On whether the 1st, 3rd , 4th and 5th respondents are properly before this court, they alleged that there was no reasonable cause of action against them. The petitioners argued that the 1st, 3rd, 4th and 5th respondent are properly before court as they participated in the procurement process. The 1st and 3rd respondents are fund managers of NG-CDF at the Bomachoge constituency level and they are a role to ensure that the monies are well managed in relation to NG-CDF projects in the Constituency . The 4th respondent is the Kenyenya Sub -County Supplies Chain officer who is the head of procurement in the Sub-county and a crucial member of the procurement committees without whom no procurement process can proceed . The 5th respondent is a sub county accountant who is the custodian of all the monies flowing from the Government to its departments in the sub- county whose authourity is required for release of the said funds .the 1st, 3rd ,4th nd 5th respondents are thus properly before this court by virtue of their mandates
(vi) Public Participation and Constitutional Compliance
29. Public participation is a constitutional imperative under Article 10.
In Robert N. Gakuru & Others v Governor Kiambu County & 3 Others [2014] eKLR, the Court held that public participation must be real, meaningful and not cosmetic.
30. The Respondents produced:
i. Public notices;
ii. Minutes of meetings
iii. Attendance records.
32. The public participation was to be conducted on the schools where the project would be taken and this is not a matter which could viable to take to the general public but community leaders . based on the material before court , it is satisfied that reasonable public participation was undertaken.
E. FINAL DISPOSITION
33. In light of the foregoing findings, this Court concludes that:
a. The dispute falls within the jurisdiction of the PPARB;
b. The Petitioners failed to exhaust statutory remedies;
c. No exceptional circumstances were demonstrated;
d. The reliefs sought are incapable of implementation;
e. The 2nd Respondent was improperly joined;
f. Public participation was reasonably undertaken.
F. ORDER
34. Accordingly, the Court makes the following orders:
a. The Amended Petition dated 8th November 2024 is hereby dismissed;
b. Each party shall bear its own costs, the matter having been brought in the public interest.
T. A. ODERA
JUDGE
10.3.26
DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 10TH DAY OF MARCH 2026 IN THE PRESENCE OF MR ONGITI FOR PETITIONERS , MISS OGETA HOLDING BREIF FOR MR OMWENGA FOR THE 1ST, 3RD, 4TH AND 5TH RESPONDENTS & CA -KIPCHIRCHIR
Ongiti : We thank the court for the judgment and rulings . may they be uploaded on CTS. We seek leave to appeal .
Order : The judgment and rulings be uploaded. Leave to appeal is granted.
T. A ODERA
JUDGE
10.3.26