A. BACKGROUND
1. Before this Court is the Applicants’ Chamber Summons dated 4 June 2026. The application is brought under Articles 22, 23, 47, 165 and 258 of the Constitution, Order 53 of the Civil Procedure Rules, Sections 8 and 9 of the Law Reform Act, the Fair Administrative Action Act, the Fair Administrative Action Rules, 2024 and the Public Procurement and Asset Disposal Act, 2015. The Applicants seek leave to commence judicial review proceedings in relation to Tender No. KeNHA/2915/2025 for the upgrading to bitumen standards of the Masara–Muhuru Bay (B1) Road.
2. The impugned procurement concerns a tender in which the 2 nd Interested Party, Lafey Construction Company Limited, was notified on 12 January 2026 of the 1 st Respondent’s intention to award it the contract at a tender sum of Kshs. 3,013,648,316.91. The notification indicated that Ricons General Services Co. Ltd., the 3 rd Interested Party, had submitted an evaluated tender price of Kshs. 2,777,395,507.39. The Applicants contend that the substantial difference between the two bids raised concerns regarding value for money, competitiveness and compliance with the constitutional and statutory procurement framework.
3. The Applicants subsequently sought access to procurement records, including evaluation reports, due diligence reports, professional opinions and other documents relating to the tender. They contend that despite repeated requests, the 1 st and 2 nd Respondents failed or declined to furnish the requested information. They consequently undertook their own verification of documents allegedly relied upon by Lafey Construction Company Limited in demonstrating its technical experience.
4. According to the Applicants, that verification raised concerns regarding documents purportedly originating from China Railway No. 5 Engineering Group Co. Ltd. By a letter dated 10 March 2026, the Applicants sought confirmation from the Chinese company regarding the authenticity of the documents. They state that the company subsequently confirmed that the documents attributed to it were forged, unauthorised and inauthentic and that it had no project relationship or contractual engagement with Lafey Construction Company Limited. The Applicants also rely on a further witness statement said to have been furnished by a director of the Chinese company on 24 March 2026, following what they describe as attempts by persons claiming to represent the successful bidder to procure a retraction of the earlier confirmation.
5. The Applicants state that they thereafter brought the alleged forgery and procurement irregularities to the attention of KeNHA and demanded that the procurement process be suspended and the allegations investigated. They further contend that, notwithstanding the seriousness of the allegations, the Respondents did not furnish them with an investigation report, findings or recommendations. The Applicants rely on correspondence exchanged with KeNHA and the Public Procurement Regulatory Authority in support of their contention that they persistently sought administrative intervention before approaching this Court.
6. The Applicants further state that on 7 th May 2026, the 1 st Respondent terminated Tender No. KeNHA/2915/2025, citing Section 63(1)(i) of the Public Procurement and Asset Disposal Act. They challenge that decision on the basis that the Notification of Intention to Award had already been issued and communicated and contend that the 1 st Respondent lacked jurisdiction to terminate the procurement proceedings under the provision relied upon. The Applicants subsequently challenged the termination and also brought the matter to the attention of the 3 rd Respondent.
7. On 12 May 2026, the 1 st Respondent advertised Tender No. KeNHA/2953/2026 concerning the same Masara–Muhuru Bay (B1) Road project. The Applicants contend that the fresh tender was a direct consequence of the impugned termination and is therefore founded upon the legality of that decision. They are apprehensive that the new procurement would proceed to receipt, opening and evaluation of bids and thereby create third-party rights and contractual expectations before the legality of the termination could be judicially interrogated.
8. The Applicants therefore seek, principally, leave to apply for orders of certiorari to quash the decision terminating Tender No. KeNHA/2915/2025, the termination letter dated 7 May 2026, the decision to advertise and process Tender No. KeNHA/2953/2026 and consequential decisions arising therefrom. They also seek leave to apply for prohibition against continuation of the re-tender, and mandamus compelling KeNHA to disclose procurement records and compelling the 3 rd Respondent to undertake a regulatory investigation, compliance review and procurement audit.
9. In addition, the Applicants seek that the leave granted operate as a stay of the impugned re-tender, including the scheduled submission, receipt and opening of bids, evaluation, consideration, recommendation, approval, award, execution and implementation. In the alternative, they seek interim conservatory and preservatory orders restraining the Respondents from proceeding with Tender No. KeNHA/2953/2026. They also seek preservation of all procurement records, electronic correspondence, servers, evaluation materials, due diligence records, committee records, internal memoranda and other documents relating to the two tenders.
10. The application is supported by the verifying affidavit sworn by the 2 nd Applicant, Machira Wahito, on 4 June 2026. The Verifying Affidavit sets out the chronology of the procurement, the Applicants’ requests for information, their verification of the documents attributed to China Railway No. 5 Engineering Group Co. Ltd., the subsequent correspondence with KeNHA and the regulator, the termination of the original tender and the commencement of the re-tender. The Applicants assert that the proceedings are brought bona fide in the public interest and pursuant to Articles 22 and 258 of the Constitution.
11. The application is opposed by the 1 st and 2 nd Respondents through the Replying Affidavit dated 2 July 2026 of Joseph Kimaru, a Principal Supply Chain Management Officer. The Respondents confirm that KeNHA advertised Tender No. KeNHA/2915/2025 on 28 th October 2025; that bids were received and opened on 27 th November 2025 from Ricons General Services Co. Ltd. and Lafey Construction Company Limited; and that a Tender Evaluation Committee was appointed on 5 th December 2025. The Committee evaluated the bids at the preliminary, technical and financial stages and recommended Lafey for due diligence as the lowest evaluated bidder.
12. The 1 st and 2 nd Respondents state that due diligence was subsequently undertaken and an evaluation report signed on 6 January 2026 recommended Lafey for the award. A professional opinion was prepared on 8 January 2026, following which the bidders were notified of the intention to award the tender on 12 January 2026. The standstill period expired on 27 January 2026 and an award letter was thereafter issued to Lafey on 28 January 2026.
13. The 1 st and 2 nd Respondents acknowledge that following the award, KeNHA received the Applicants’ complaint alleging that documents submitted by Lafey in support of its construction experience through China Railway No. 5 Engineering Group were forged. They state that KeNHA responded to the complaint on 20 March 2026 and notified Lafey of the allegations. They further confirm that China Railway No. 5 Engineering Group subsequently informed KeNHA that it had neither issued nor authorised the alleged subcontracting documents and that the documents submitted by Lafey were not genuine.
14. The 1 st and 2 nd Respondents nevertheless maintain that KeNHA acted lawfully upon receiving the information. According to Mr. Kimaru, KeNHA terminated the award/tender pursuant to Section 66(3)(b) of the Public Procurement and Asset Disposal Act because no contract had been executed between KeNHA and Lafey. Both bidders were notified of the termination on 7 May 2026 and the tender was re-advertised on 12 May 2026.
15. Their position is that the termination was intended to protect the integrity of the procurement process after discovery that the successful bidder had submitted falsified documents. They further contend that public interest required the road project to proceed through a fresh and untainted procurement process. They maintain that because no contract had been executed, Section 66(3)(b) was applicable and, in any event, any investigation into the alleged forgery was a matter for the 3 rd Respondent rather than a basis for stopping the fresh procurement process.
16. The Respondents also challenge the Applicants’ standing and characterise them as persons who did not participate as candidates in the impugned tender. They contend that the Applicants have not demonstrated how termination of a tender which they themselves allege was tainted by fraud could amount to an action contrary to the public interest. The Respondents further state that the Applicants subsequently instituted Constitutional Petition No. HCCCHRPET/E398/2026 arising from related circumstances, which they contend amounts to an abuse of the process of the Court.
17. The 4 th Interested Party, the Ethics and Anti-Corruption Commission, opposes the application vide Grounds of Opposition dated 9 th July 2026 on the basis that the Applicants have not demonstrated that they made reports or complaints of corruption to the Commission which the Commission thereafter failed or refused to investigate. It contends that the Applicants have invoked the jurisdiction of the Court without first exhausting the available avenues for dealing with allegations of corruption and have consequently failed to establish a prima facie case against it. The Commission accordingly seeks to be discharged from the proceedings.
18. The 1 st Interested Party, the Cabinet Secretary for the Ministry of Roads and Transport, similarly opposes the application. Its Grounds of Opposition dated 8 th July 2026 are that no arguable case has been disclosed against the Cabinet Secretary; that no specific allegation of illegality, irrationality or procedural impropriety is made against that office; and that the impugned procurement decision was made by KeNHA, a statutory body with its own legal mandate and capacity to sue and be sued. It is further contended that the functions in question fall within the mandate of the procuring entity and not the Cabinet Secretary, whose presence is therefore unnecessary for the determination of the dispute.
19. In rejoinder, the Applicants filed a supplementary affidavit sworn by Machira Wahito on 11 July 2026. The Applicants contend that the replying affidavit substantially confirms the factual circumstances giving rise to the proceedings. In particular, they rely on the Respondents’ confirmation that the tender was evaluated, Lafey was declared the successful bidder, due diligence was undertaken, a complaint concerning forged documents was subsequently received, China Railway No. 5 Engineering Group denied issuing or authorising the documents, and the award was thereafter terminated and the tender re-advertised.
20. The Applicants maintain that the Respondents have not explained how allegedly forged documents passed through the preliminary, technical and due diligence stages, nor disclosed the nature and outcome of the internal review which they say was undertaken after the complaint was received. They contend that termination of the procurement and commencement of a fresh tender did not answer the questions of institutional accountability arising from the alleged irregularities and that the circumstances raise questions under Articles 10 and 227 of the Constitution.
21. The Applicants further maintain that their proceedings are properly brought in the public interest notwithstanding that they were not bidders in the tender. They rely on Articles 22 and 258 of the Constitution and contend that the legality of administrative action involving public procurement and expenditure of public funds is not insulated from judicial scrutiny merely because the Applicants did not participate in the tender process.
22. On the legality of the termination, the Applicants contend that the Respondents’ reliance on Section 66(3)(b) of the Public Procurement and Asset Disposal Act is belated and inconsistent with their earlier reliance on Section 63(1)(i). They maintain that the statutory power to terminate a procurement process must itself be exercised lawfully, fairly, transparently and for proper purposes, and that the subsequent re-tender remains inseparably connected to the legality of the original termination.
23. The Applicants also filed a further Replying Affidavit dated 13 July 2026 in response to the 4 th Interested Party’s position. They deny that they approached the Court as a first port of call. They state that they corresponded with the Commission on 13 March, 10 April, 28 April and 12 May 2026 and lodged complaints with the 3 rd Respondent on 23 January, 27 April and 11 May 2026. They further contend that the relevant correspondence was copied to the 3rd Respondent and that the Commission itself summoned the 1 st Interested Party in relation to the complaints.
24. The material presently before the Court therefore discloses two principal strands to the Applicants’ case. First, they challenge the legality and propriety of the termination of Tender No. KeNHA/2915/2025 and the consequential re-tendering, particularly in light of the stage reached in the procurement process and the statutory provision relied upon. Second, they challenge the manner in which the alleged procurement irregularities and forged documents were dealt with, including the alleged failure to disclose procurement records, investigation findings and the regulatory response. The Respondents, on the other hand, maintain that the tender was lawfully terminated upon discovery of falsified documents and that the re-tender was undertaken in the public interest to ensure completion of the road project through an untainted procurement process.
B. ANALYSIS AND DETERMINATION
25. In the circumstances, the Court shall determine the Chamber Summons dated 4 June 2026 as an application for leave to commence judicial review proceedings and, separately, consider the prayers for stay, conservatory and preservation orders. The following two issues therefore arise for determination:
a. Whether the Applicants have disclosed a proper and arguable case for the exercise of the Court’s judicial review jurisdiction warranting leave under Order 53 of the Civil Procedure Rules; and, if answered in the affirmative;
b. Whether, the leave granted should operate as a stay and whether the interim conservatory and preservation orders sought should issue.
I. Whether the Applicants have disclosed a proper and arguable case for the exercise of the Court’s judicial review jurisdiction warranting leave under Order 53 of the Civil Procedure Rules;
26. In the present matter, the first issue is whether, on the material placed before the Court, the Applicants have disclosed a case fit for further consideration through judicial review. The requirement for leave under Order 53 is not a mere procedural formality. Its purpose is to filter out proceedings which are frivolous, vexatious, hopeless or otherwise not fit for substantive consideration. The Court is not, at this stage, called upon to determine the merits of the intended application, but must nevertheless satisfy itself that an arguable case within the proper scope of judicial review has been disclosed. See Uwe Meixner & another v Attorney General [2005] 2 KLR 189; Republic v County Council of Kwale & another ex parte Kondo & 57 others (1998) 1 KLR (E&L); and Titus v Independent Policing Oversight Authority & another; Mjomba (Interested Party) [2026] KEHC 1509 (KLR).
27. The material before the Court shows that Tender No. KeNHA/2915/2025 for the upgrading to bitumen standards of the Masara–Muhuru Bay (B1) Road was evaluated and Lafey Construction Company Limited was notified on 12 January 2026 of the intention to award the tender at Kshs. 3,013,648,316.91. Thereafter, a complaint was raised concerning documents attributed to China Railway No. 5 Engineering Group Limited and said to have been relied upon by Lafey in demonstrating its experience and qualifications. The Respondents acknowledge that China Railway subsequently indicated that the documents attributed to it had not been issued or authorised by the company. An internal review was thereafter undertaken and, on 7 May 2026, the procurement process was terminated. Five days later, on 12 May 2026, Tender No. KeNHA/2953/2026 for the same road project was advertised. These matters are borne out by the Applicants’ own supplementary affidavit and the response filed by the 1 st and 2 nd Respondents.
28. The Applicants contend that the termination was unlawful and, in particular, question the statutory basis upon which it was undertaken. This contention is not without substance. Section 63 of the Public Procurement and Asset Disposal Act permits termination of procurement proceedings on specified grounds, including subsequent evidence of fraudulent or corrupt practices, but the power under subsection (1) is expressed to operate prior to notification of tender award. The chronology before Court therefore raises a legitimate question concerning the statutory power invoked in terminating the procurement after the notification of intention to award. The Respondents, for their part, rely on the absence of an executed contract and, inter alia, section 66(3)(b) of the Act. I make no final determination on that statutory controversy at this stage.
29. It is also noted that the Applicants did not take part in the procurement proceedings and hence could not take advantage of the provisions of Section 167(1) of the Public Procurement and Asset Disposal Act which give an aggrieved party a chance to seek administrative review of the decision of a procuring entity before the Public Procurement Administrative Review Board. Any other party may, however, resort to Section 174 which leaves it open to a party to seek any other legal remedy. In any case, this Court retains general supervisory jurisdiction pursuant to Article 165 (6).
30. The existence of an arguable question as stated above, however, does not end the inquiry whether the same should be considered substantively. The Court must ask whether the grievance as presented is one properly amenable to judicial review. Judicial review is concerned with the legality of the decision-making process and not with the merits of the decision itself. It is not an appeal disguised as judicial review, nor is it intended to convert the Court into the primary fact-finding forum concerning the decision under challenge. The Court of Appeal in Uwe Meixner & another v Attorney General [supra] made this distinction clear, and the position has recently been reiterated in Republic v Office of the Director of Public Prosecutions; Necheza (Ex parte Applicant) [2025] KEHC 5669 (KLR) , where the Court emphasised that affidavit evidence is generally ill-suited to resolving disputed facts and that judicial review is not intended to become a full-fledged inquiry into the merits or to permit the Court to substitute its own view for that of the decision-maker.
31. That principle assumes particular importance in the present matter. The Applicants do not merely challenge the legality of the decision to terminate Tender No. KeNHA/2915/2025. They invite the Court to interrogate the authenticity of documents attributed to China Railway No. 5; determine whether those documents were forged; establish how they came to be relied upon during the preliminary and technical evaluation and due-diligence stages; examine the competing communications concerning their authenticity; interrogate the scope and adequacy of the Respondents’ internal review; and determine whether the Respondents properly accounted for the alleged procurement irregularities before terminating the tender and commencing a fresh procurement process. The Applicants themselves assert that the Respondents have failed to explain how the allegedly fraudulent documents passed through the procurement safeguards and have failed to disclose the findings of the internal review.
32. Those questions are materially different from the ordinary judicial-review inquiry being whether a decision-maker acted within jurisdiction, complied with a statutory procedure, took into account relevant considerations, acted for a proper purpose, or observed the requirements of procedural fairness. They would require the Court to choose between competing factual accounts and make factual findings concerning alleged fraud, forgery, due diligence and institutional responsibility. As was stated in Republic v Office of the Director of Public Prosecutions; Necheza [supra] , the intention of judicial review was never to transform the supervisory court into a full-fledged inquiry into the merits, particularly where the determination would depend upon disputed or technical evidence.
33. It is therefore necessary to distinguish between an arguable complaint and an arguable judicial-review case. The Applicants have demonstrated that there is a question concerning the legality of the termination. They have not, however, demonstrated that the wider controversy which they seek to place before the Court can appropriately be determined through the supervisory jurisdiction. The seriousness of an allegation of procurement fraud does not, without more, convert a dispute requiring factual investigation into a judicial-review proceeding.
34. There is a further difficulty arising from the nature and efficacy of the reliefs sought in light of the subsequent procurement process. The Applicants principally seek certiorari, prohibition and mandamus in relation to the termination of Tender No. KeNHA/2915/2025. Certiorari may quash a decision already made; prohibition operates prospectively to restrain threatened or continuing unlawful action; while mandamus compels performance of a public duty but does not ordinarily dictate the substantive outcome of a statutory discretion. In the present case, the impugned termination occurred on 7 May 2026, after which the Respondents advertised Tender No. KeNHA/2953/2026 for the same road project on 12 May 2026, with bids subsequently opened on 10 June 2026. Consequently, certiorari, even if granted, would only quash the termination and would not revive the earlier tender or confer an entitlement to its award. It would not permit the Court to determine disputed questions concerning the authenticity of the documents attributed to China Railway No. 5 Engineering Group Limited, the qualification of Lafey Construction Company Limited, or the correctness of the original evaluation. Nor could mandamus compel the Respondents to award the tender to a particular party, since that would amount to substituting the Court's decision for that of the statutory procuring authority. As recognised in Republic v Public Procurement Administrative Review Board; County Government of Nyeri & another (Interested Parties); Utmost Insurance Brokers Limited & another (Ex parte) [2026] KEHC 1620 (KLR), mandamus may compel lawful performance of a public duty but cannot dictate an outcome where the decision remains vested in the public body. Similarly, prohibition cannot retrospectively undo the termination and would have to be directed at a specific threatened unlawful act in the subsequent procurement.
35. Judicial review remedies are discretionary and must be capable of producing a lawful and practical result. As stated in Republic v Public Procurement Administrative Review Board & 2 others [2019] KEHC 9688 (KLR ), the Court is entitled to consider the nature of the process challenged and the appropriateness and efficacy of the particular remedy sought. The re-tendering therefore makes it necessary to identify precisely what lawful state of affairs the Court would restore if the orders were granted. More importantly, resolution of the Applicants' complaint would require the Court to determine contested factual matters concerning the authenticity and presentation of documents attributed to China Railway No. 5 Engineering Group Limited, the due diligence undertaken by KeNHA, the competing communications and explanations, and the propriety of the evaluation and termination. Such matters would substantially transform these proceedings from supervision of the legality of a decision-making process into an examination of the merits of the procurement, which is not the proper function of judicial review at the leave stage.
36. I therefore find that, although the Applicants may have raised an arguable question concerning the statutory basis and circumstances of the termination, they have not demonstrated a case fit for the exercise of the Court's judicial review jurisdiction under Order 53.
37. There is also before the Court a further material circumstance. The replying affidavit of the 1 st and 2 nd Respondents places before the Court a Constitutional Petition (Milimani HCCHRPET E398 of 2026) instituted by Anthony Ngatia, which concerns the same Tender No. KeNHA/2915/2025, the alleged procurement irregularities and the subsequent Tender No. KeNHA/2953/2026. The Petition challenges, among other matters, the termination of the earlier tender and seeks preservation and conservatory orders restraining further steps in the fresh procurement. The Applicants acknowledge the existence of that Petition but contend that the two proceedings are distinct because they invoke different jurisdictions and seek different remedies.
38. I do not find it necessary, for purposes of this ruling, to determine that the present proceedings are barred by section 6 of the Civil Procedure Act. The present judicial-review proceedings were instituted before the Constitutional Petition, and the parties are not identical. Nevertheless, the existence of the Petition is relevant to the Court’s control of its own process. The two proceedings substantially concern the same procurement transactions, the same termination, the same alleged irregularities and the same consequential re-tender, with overlapping preservation reliefs. The Court is entitled to take that circumstance into account in determining whether permitting another process to proceed would promote, or instead undermine, the efficient and orderly administration of justice.
39. In Legal Advice Centre aka Kituo Cha Sheria v Communication Authority of Kenya; Finserve Africa Ltd (Interested Party) [2015] KEHC 7356 (KLR), the High Court recognised that, notwithstanding the technical applicability of the sub judice doctrine to judicial-review proceedings, the Court retains inherent jurisdiction to prevent abuse of its process and unnecessary multiplicity of proceedings. The same principle applies here. The existence of the Petition does not, by itself, extinguish the Applicants’ right to approach the Court; it is, however, a material factor when assessing whether the intended proceedings are properly constituted for the relief sought and whether allowing them to proceed would expose the Court to overlapping proceedings and potentially inconsistent orders.
40. It is also noteworthy that the Petitioner in Milimani HCCHRPET E398 of 2026 is the Applicant’s counsel in the present proceedings. This conduct is tantamount to forum shopping. While counsel filed these proceedings first on behalf of his clients, he later on filed Milimani HCCHRPET E398 of 2026 in his own name where interim orders were issued. This conduct is in abuse of the court process ana I must necessarily deprecate the same.
41. Accordingly, while the allegations are serious and the public interest in lawful procurement is unquestionable, the Court is not satisfied that the Applicants have disclosed a proper judicial-review case fit for further consideration under Order 53. The leave threshold is therefore not met.
42. The answer to the first issue is consequently in the negative.
II. Whether, if granted, should operate as a stay and whether interim preservation orders should issue
43. Having found that the Applicants have not established a proper and arguable case warranting leave under Order 53, the second issue is necessarily consequential. Order 53 rule 1(4) makes the grant of leave a prerequisite to the commencement of the substantive judicial review proceedings and permits the Court, where leave is granted, to direct that the grant of leave operate as a stay of the proceedings or decision to which the application relates. Accordingly, having declined to grant leave, I find no basis upon which to grant the consequential orders of stay, prohibition or interim preservation sought by the Applicants.
E. DISPOSITION
44. Consequently, the Chamber Summons dated 4 th June 2026 is hereby dismissed with no orders as to costs.
Dated and Delivered this 17 th day of September, 2026.
NABIL M. ORINA
JUDGE
RULING DELIVERED VIRTUALLY IN THE PRESENCE OF:
Mr. Maruti for the 1 st and 2 nd Interested Parties
Mr. Mbaka h/b for Ms. Wambugu for the 4 th Interested Party
Lucy - Court Assistant
Ruling - Nairobi (Milimani) HCJR No. E172 of 2026
1. Before this Court is the Applicants’ Chamber Summons dated 4 June 2026. The application is brought under Articles 22, 23, 47, 165 and 258 of the Constitution, Order 53 of the Civil Procedure Rules, Sections 8 and 9 of the Law Reform Act, the Fair Administrative Action Act, the Fair Administrative Action Rules, 2024 and the Public Procurement and Asset Disposal Act, 2015. The Applicants seek leave to commence judicial review proceedings in relation to Tender No. KeNHA/2915/2025 for the upgrading to bitumen standards of the Masara–Muhuru Bay (B1) Road.
2. The impugned procurement concerns a tender in which the 2 nd Interested Party, Lafey Construction Company Limited, was notified on 12 January 2026 of the 1 st Respondent’s intention to award it the contract at a tender sum of Kshs. 3,013,648,316.91. The notification indicated that Ricons General Services Co. Ltd., the 3 rd Interested Party, had submitted an evaluated tender price of Kshs. 2,777,395,507.39. The Applicants contend that the substantial difference between the two bids raised concerns regarding value for money, competitiveness and compliance with the constitutional and statutory procurement framework.
3. The Applicants subsequently sought access to procurement records, including evaluation reports, due diligence reports, professional opinions and other documents relating to the tender. They contend that despite repeated requests, the 1 st and 2 nd Respondents failed or declined to furnish the requested information. They consequently undertook their own verification of documents allegedly relied upon by Lafey Construction Company Limited in demonstrating its technical experience.
4. According to the Applicants, that verification raised concerns regarding documents purportedly originating from China Railway No. 5 Engineering Group Co. Ltd. By a letter dated 10 March 2026, the Applicants sought confirmation from the Chinese company regarding the authenticity of the documents. They state that the company subsequently confirmed that the documents attributed to it were forged, unauthorised and inauthentic and that it had no project relationship or contractual engagement with Lafey Construction Company Limited. The Applicants also rely on a further witness statement said to have been furnished by a director of the Chinese company on 24 March 2026, following what they describe as attempts by persons claiming to represent the successful bidder to procure a retraction of the earlier confirmation.
5. The Applicants state that they thereafter brought the alleged forgery and procurement irregularities to the attention of KeNHA and demanded that the procurement process be suspended and the allegations investigated. They further contend that, notwithstanding the seriousness of the allegations, the Respondents did not furnish them with an investigation report, findings or recommendations. The Applicants rely on correspondence exchanged with KeNHA and the Public Procurement Regulatory Authority in support of their contention that they persistently sought administrative intervention before approaching this Court.
6. The Applicants further state that on 7 th May 2026, the 1 st Respondent terminated Tender No. KeNHA/2915/2025, citing Section 63(1)(i) of the Public Procurement and Asset Disposal Act. They challenge that decision on the basis that the Notification of Intention to Award had already been issued and communicated and contend that the 1 st Respondent lacked jurisdiction to terminate the procurement proceedings under the provision relied upon. The Applicants subsequently challenged the termination and also brought the matter to the attention of the 3 rd Respondent.
7. On 12 May 2026, the 1 st Respondent advertised Tender No. KeNHA/2953/2026 concerning the same Masara–Muhuru Bay (B1) Road project. The Applicants contend that the fresh tender was a direct consequence of the impugned termination and is therefore founded upon the legality of that decision. They are apprehensive that the new procurement would proceed to receipt, opening and evaluation of bids and thereby create third-party rights and contractual expectations before the legality of the termination could be judicially interrogated.
8. The Applicants therefore seek, principally, leave to apply for orders of certiorari to quash the decision terminating Tender No. KeNHA/2915/2025, the termination letter dated 7 May 2026, the decision to advertise and process Tender No. KeNHA/2953/2026 and consequential decisions arising therefrom. They also seek leave to apply for prohibition against continuation of the re-tender, and mandamus compelling KeNHA to disclose procurement records and compelling the 3 rd Respondent to undertake a regulatory investigation, compliance review and procurement audit.
9. In addition, the Applicants seek that the leave granted operate as a stay of the impugned re-tender, including the scheduled submission, receipt and opening of bids, evaluation, consideration, recommendation, approval, award, execution and implementation. In the alternative, they seek interim conservatory and preservatory orders restraining the Respondents from proceeding with Tender No. KeNHA/2953/2026. They also seek preservation of all procurement records, electronic correspondence, servers, evaluation materials, due diligence records, committee records, internal memoranda and other documents relating to the two tenders.
10. The application is supported by the verifying affidavit sworn by the 2 nd Applicant, Machira Wahito, on 4 June 2026. The Verifying Affidavit sets out the chronology of the procurement, the Applicants’ requests for information, their verification of the documents attributed to China Railway No. 5 Engineering Group Co. Ltd., the subsequent correspondence with KeNHA and the regulator, the termination of the original tender and the commencement of the re-tender. The Applicants assert that the proceedings are brought bona fide in the public interest and pursuant to Articles 22 and 258 of the Constitution.
11. The application is opposed by the 1 st and 2 nd Respondents through the Replying Affidavit dated 2 July 2026 of Joseph Kimaru, a Principal Supply Chain Management Officer. The Respondents confirm that KeNHA advertised Tender No. KeNHA/2915/2025 on 28 th October 2025; that bids were received and opened on 27 th November 2025 from Ricons General Services Co. Ltd. and Lafey Construction Company Limited; and that a Tender Evaluation Committee was appointed on 5 th December 2025. The Committee evaluated the bids at the preliminary, technical and financial stages and recommended Lafey for due diligence as the lowest evaluated bidder.
12. The 1 st and 2 nd Respondents state that due diligence was subsequently undertaken and an evaluation report signed on 6 January 2026 recommended Lafey for the award. A professional opinion was prepared on 8 January 2026, following which the bidders were notified of the intention to award the tender on 12 January 2026. The standstill period expired on 27 January 2026 and an award letter was thereafter issued to Lafey on 28 January 2026.
13. The 1 st and 2 nd Respondents acknowledge that following the award, KeNHA received the Applicants’ complaint alleging that documents submitted by Lafey in support of its construction experience through China Railway No. 5 Engineering Group were forged. They state that KeNHA responded to the complaint on 20 March 2026 and notified Lafey of the allegations. They further confirm that China Railway No. 5 Engineering Group subsequently informed KeNHA that it had neither issued nor authorised the alleged subcontracting documents and that the documents submitted by Lafey were not genuine.
14. The 1 st and 2 nd Respondents nevertheless maintain that KeNHA acted lawfully upon receiving the information. According to Mr. Kimaru, KeNHA terminated the award/tender pursuant to Section 66(3)(b) of the Public Procurement and Asset Disposal Act because no contract had been executed between KeNHA and Lafey. Both bidders were notified of the termination on 7 May 2026 and the tender was re-advertised on 12 May 2026.
15. Their position is that the termination was intended to protect the integrity of the procurement process after discovery that the successful bidder had submitted falsified documents. They further contend that public interest required the road project to proceed through a fresh and untainted procurement process. They maintain that because no contract had been executed, Section 66(3)(b) was applicable and, in any event, any investigation into the alleged forgery was a matter for the 3 rd Respondent rather than a basis for stopping the fresh procurement process.
16. The Respondents also challenge the Applicants’ standing and characterise them as persons who did not participate as candidates in the impugned tender. They contend that the Applicants have not demonstrated how termination of a tender which they themselves allege was tainted by fraud could amount to an action contrary to the public interest. The Respondents further state that the Applicants subsequently instituted Constitutional Petition No. HCCCHRPET/E398/2026 arising from related circumstances, which they contend amounts to an abuse of the process of the Court.
17. The 4 th Interested Party, the Ethics and Anti-Corruption Commission, opposes the application vide Grounds of Opposition dated 9 th July 2026 on the basis that the Applicants have not demonstrated that they made reports or complaints of corruption to the Commission which the Commission thereafter failed or refused to investigate. It contends that the Applicants have invoked the jurisdiction of the Court without first exhausting the available avenues for dealing with allegations of corruption and have consequently failed to establish a prima facie case against it. The Commission accordingly seeks to be discharged from the proceedings.
18. The 1 st Interested Party, the Cabinet Secretary for the Ministry of Roads and Transport, similarly opposes the application. Its Grounds of Opposition dated 8 th July 2026 are that no arguable case has been disclosed against the Cabinet Secretary; that no specific allegation of illegality, irrationality or procedural impropriety is made against that office; and that the impugned procurement decision was made by KeNHA, a statutory body with its own legal mandate and capacity to sue and be sued. It is further contended that the functions in question fall within the mandate of the procuring entity and not the Cabinet Secretary, whose presence is therefore unnecessary for the determination of the dispute.
19. In rejoinder, the Applicants filed a supplementary affidavit sworn by Machira Wahito on 11 July 2026. The Applicants contend that the replying affidavit substantially confirms the factual circumstances giving rise to the proceedings. In particular, they rely on the Respondents’ confirmation that the tender was evaluated, Lafey was declared the successful bidder, due diligence was undertaken, a complaint concerning forged documents was subsequently received, China Railway No. 5 Engineering Group denied issuing or authorising the documents, and the award was thereafter terminated and the tender re-advertised.
20. The Applicants maintain that the Respondents have not explained how allegedly forged documents passed through the preliminary, technical and due diligence stages, nor disclosed the nature and outcome of the internal review which they say was undertaken after the complaint was received. They contend that termination of the procurement and commencement of a fresh tender did not answer the questions of institutional accountability arising from the alleged irregularities and that the circumstances raise questions under Articles 10 and 227 of the Constitution.
21. The Applicants further maintain that their proceedings are properly brought in the public interest notwithstanding that they were not bidders in the tender. They rely on Articles 22 and 258 of the Constitution and contend that the legality of administrative action involving public procurement and expenditure of public funds is not insulated from judicial scrutiny merely because the Applicants did not participate in the tender process.
22. On the legality of the termination, the Applicants contend that the Respondents’ reliance on Section 66(3)(b) of the Public Procurement and Asset Disposal Act is belated and inconsistent with their earlier reliance on Section 63(1)(i). They maintain that the statutory power to terminate a procurement process must itself be exercised lawfully, fairly, transparently and for proper purposes, and that the subsequent re-tender remains inseparably connected to the legality of the original termination.
23. The Applicants also filed a further Replying Affidavit dated 13 July 2026 in response to the 4 th Interested Party’s position. They deny that they approached the Court as a first port of call. They state that they corresponded with the Commission on 13 March, 10 April, 28 April and 12 May 2026 and lodged complaints with the 3 rd Respondent on 23 January, 27 April and 11 May 2026. They further contend that the relevant correspondence was copied to the 3rd Respondent and that the Commission itself summoned the 1 st Interested Party in relation to the complaints.
24. The material presently before the Court therefore discloses two principal strands to the Applicants’ case. First, they challenge the legality and propriety of the termination of Tender No. KeNHA/2915/2025 and the consequential re-tendering, particularly in light of the stage reached in the procurement process and the statutory provision relied upon. Second, they challenge the manner in which the alleged procurement irregularities and forged documents were dealt with, including the alleged failure to disclose procurement records, investigation findings and the regulatory response. The Respondents, on the other hand, maintain that the tender was lawfully terminated upon discovery of falsified documents and that the re-tender was undertaken in the public interest to ensure completion of the road project through an untainted procurement process.
B. ANALYSIS AND DETERMINATION
25. In the circumstances, the Court shall determine the Chamber Summons dated 4 June 2026 as an application for leave to commence judicial review proceedings and, separately, consider the prayers for stay, conservatory and preservation orders. The following two issues therefore arise for determination:
a. Whether the Applicants have disclosed a proper and arguable case for the exercise of the Court’s judicial review jurisdiction warranting leave under Order 53 of the Civil Procedure Rules; and, if answered in the affirmative;
b. Whether, the leave granted should operate as a stay and whether the interim conservatory and preservation orders sought should issue.
I. Whether the Applicants have disclosed a proper and arguable case for the exercise of the Court’s judicial review jurisdiction warranting leave under Order 53 of the Civil Procedure Rules;
26. In the present matter, the first issue is whether, on the material placed before the Court, the Applicants have disclosed a case fit for further consideration through judicial review. The requirement for leave under Order 53 is not a mere procedural formality. Its purpose is to filter out proceedings which are frivolous, vexatious, hopeless or otherwise not fit for substantive consideration. The Court is not, at this stage, called upon to determine the merits of the intended application, but must nevertheless satisfy itself that an arguable case within the proper scope of judicial review has been disclosed. See Uwe Meixner & another v Attorney General [2005] 2 KLR 189; Republic v County Council of Kwale & another ex parte Kondo & 57 others (1998) 1 KLR (E&L); and Titus v Independent Policing Oversight Authority & another; Mjomba (Interested Party) [2026] KEHC 1509 (KLR).
27. The material before the Court shows that Tender No. KeNHA/2915/2025 for the upgrading to bitumen standards of the Masara–Muhuru Bay (B1) Road was evaluated and Lafey Construction Company Limited was notified on 12 January 2026 of the intention to award the tender at Kshs. 3,013,648,316.91. Thereafter, a complaint was raised concerning documents attributed to China Railway No. 5 Engineering Group Limited and said to have been relied upon by Lafey in demonstrating its experience and qualifications. The Respondents acknowledge that China Railway subsequently indicated that the documents attributed to it had not been issued or authorised by the company. An internal review was thereafter undertaken and, on 7 May 2026, the procurement process was terminated. Five days later, on 12 May 2026, Tender No. KeNHA/2953/2026 for the same road project was advertised. These matters are borne out by the Applicants’ own supplementary affidavit and the response filed by the 1 st and 2 nd Respondents.
28. The Applicants contend that the termination was unlawful and, in particular, question the statutory basis upon which it was undertaken. This contention is not without substance. Section 63 of the Public Procurement and Asset Disposal Act permits termination of procurement proceedings on specified grounds, including subsequent evidence of fraudulent or corrupt practices, but the power under subsection (1) is expressed to operate prior to notification of tender award. The chronology before Court therefore raises a legitimate question concerning the statutory power invoked in terminating the procurement after the notification of intention to award. The Respondents, for their part, rely on the absence of an executed contract and, inter alia, section 66(3)(b) of the Act. I make no final determination on that statutory controversy at this stage.
29. It is also noted that the Applicants did not take part in the procurement proceedings and hence could not take advantage of the provisions of Section 167(1) of the Public Procurement and Asset Disposal Act which give an aggrieved party a chance to seek administrative review of the decision of a procuring entity before the Public Procurement Administrative Review Board. Any other party may, however, resort to Section 174 which leaves it open to a party to seek any other legal remedy. In any case, this Court retains general supervisory jurisdiction pursuant to Article 165 (6).
30. The existence of an arguable question as stated above, however, does not end the inquiry whether the same should be considered substantively. The Court must ask whether the grievance as presented is one properly amenable to judicial review. Judicial review is concerned with the legality of the decision-making process and not with the merits of the decision itself. It is not an appeal disguised as judicial review, nor is it intended to convert the Court into the primary fact-finding forum concerning the decision under challenge. The Court of Appeal in Uwe Meixner & another v Attorney General [supra] made this distinction clear, and the position has recently been reiterated in Republic v Office of the Director of Public Prosecutions; Necheza (Ex parte Applicant) [2025] KEHC 5669 (KLR) , where the Court emphasised that affidavit evidence is generally ill-suited to resolving disputed facts and that judicial review is not intended to become a full-fledged inquiry into the merits or to permit the Court to substitute its own view for that of the decision-maker.
31. That principle assumes particular importance in the present matter. The Applicants do not merely challenge the legality of the decision to terminate Tender No. KeNHA/2915/2025. They invite the Court to interrogate the authenticity of documents attributed to China Railway No. 5; determine whether those documents were forged; establish how they came to be relied upon during the preliminary and technical evaluation and due-diligence stages; examine the competing communications concerning their authenticity; interrogate the scope and adequacy of the Respondents’ internal review; and determine whether the Respondents properly accounted for the alleged procurement irregularities before terminating the tender and commencing a fresh procurement process. The Applicants themselves assert that the Respondents have failed to explain how the allegedly fraudulent documents passed through the procurement safeguards and have failed to disclose the findings of the internal review.
32. Those questions are materially different from the ordinary judicial-review inquiry being whether a decision-maker acted within jurisdiction, complied with a statutory procedure, took into account relevant considerations, acted for a proper purpose, or observed the requirements of procedural fairness. They would require the Court to choose between competing factual accounts and make factual findings concerning alleged fraud, forgery, due diligence and institutional responsibility. As was stated in Republic v Office of the Director of Public Prosecutions; Necheza [supra] , the intention of judicial review was never to transform the supervisory court into a full-fledged inquiry into the merits, particularly where the determination would depend upon disputed or technical evidence.
33. It is therefore necessary to distinguish between an arguable complaint and an arguable judicial-review case. The Applicants have demonstrated that there is a question concerning the legality of the termination. They have not, however, demonstrated that the wider controversy which they seek to place before the Court can appropriately be determined through the supervisory jurisdiction. The seriousness of an allegation of procurement fraud does not, without more, convert a dispute requiring factual investigation into a judicial-review proceeding.
34. There is a further difficulty arising from the nature and efficacy of the reliefs sought in light of the subsequent procurement process. The Applicants principally seek certiorari, prohibition and mandamus in relation to the termination of Tender No. KeNHA/2915/2025. Certiorari may quash a decision already made; prohibition operates prospectively to restrain threatened or continuing unlawful action; while mandamus compels performance of a public duty but does not ordinarily dictate the substantive outcome of a statutory discretion. In the present case, the impugned termination occurred on 7 May 2026, after which the Respondents advertised Tender No. KeNHA/2953/2026 for the same road project on 12 May 2026, with bids subsequently opened on 10 June 2026. Consequently, certiorari, even if granted, would only quash the termination and would not revive the earlier tender or confer an entitlement to its award. It would not permit the Court to determine disputed questions concerning the authenticity of the documents attributed to China Railway No. 5 Engineering Group Limited, the qualification of Lafey Construction Company Limited, or the correctness of the original evaluation. Nor could mandamus compel the Respondents to award the tender to a particular party, since that would amount to substituting the Court's decision for that of the statutory procuring authority. As recognised in Republic v Public Procurement Administrative Review Board; County Government of Nyeri & another (Interested Parties); Utmost Insurance Brokers Limited & another (Ex parte) [2026] KEHC 1620 (KLR), mandamus may compel lawful performance of a public duty but cannot dictate an outcome where the decision remains vested in the public body. Similarly, prohibition cannot retrospectively undo the termination and would have to be directed at a specific threatened unlawful act in the subsequent procurement.
35. Judicial review remedies are discretionary and must be capable of producing a lawful and practical result. As stated in Republic v Public Procurement Administrative Review Board & 2 others [2019] KEHC 9688 (KLR ), the Court is entitled to consider the nature of the process challenged and the appropriateness and efficacy of the particular remedy sought. The re-tendering therefore makes it necessary to identify precisely what lawful state of affairs the Court would restore if the orders were granted. More importantly, resolution of the Applicants' complaint would require the Court to determine contested factual matters concerning the authenticity and presentation of documents attributed to China Railway No. 5 Engineering Group Limited, the due diligence undertaken by KeNHA, the competing communications and explanations, and the propriety of the evaluation and termination. Such matters would substantially transform these proceedings from supervision of the legality of a decision-making process into an examination of the merits of the procurement, which is not the proper function of judicial review at the leave stage.
36. I therefore find that, although the Applicants may have raised an arguable question concerning the statutory basis and circumstances of the termination, they have not demonstrated a case fit for the exercise of the Court's judicial review jurisdiction under Order 53.
37. There is also before the Court a further material circumstance. The replying affidavit of the 1 st and 2 nd Respondents places before the Court a Constitutional Petition (Milimani HCCHRPET E398 of 2026) instituted by Anthony Ngatia, which concerns the same Tender No. KeNHA/2915/2025, the alleged procurement irregularities and the subsequent Tender No. KeNHA/2953/2026. The Petition challenges, among other matters, the termination of the earlier tender and seeks preservation and conservatory orders restraining further steps in the fresh procurement. The Applicants acknowledge the existence of that Petition but contend that the two proceedings are distinct because they invoke different jurisdictions and seek different remedies.
38. I do not find it necessary, for purposes of this ruling, to determine that the present proceedings are barred by section 6 of the Civil Procedure Act. The present judicial-review proceedings were instituted before the Constitutional Petition, and the parties are not identical. Nevertheless, the existence of the Petition is relevant to the Court’s control of its own process. The two proceedings substantially concern the same procurement transactions, the same termination, the same alleged irregularities and the same consequential re-tender, with overlapping preservation reliefs. The Court is entitled to take that circumstance into account in determining whether permitting another process to proceed would promote, or instead undermine, the efficient and orderly administration of justice.
39. In Legal Advice Centre aka Kituo Cha Sheria v Communication Authority of Kenya; Finserve Africa Ltd (Interested Party) [2015] KEHC 7356 (KLR), the High Court recognised that, notwithstanding the technical applicability of the sub judice doctrine to judicial-review proceedings, the Court retains inherent jurisdiction to prevent abuse of its process and unnecessary multiplicity of proceedings. The same principle applies here. The existence of the Petition does not, by itself, extinguish the Applicants’ right to approach the Court; it is, however, a material factor when assessing whether the intended proceedings are properly constituted for the relief sought and whether allowing them to proceed would expose the Court to overlapping proceedings and potentially inconsistent orders.
40. It is also noteworthy that the Petitioner in Milimani HCCHRPET E398 of 2026 is the Applicant’s counsel in the present proceedings. This conduct is tantamount to forum shopping. While counsel filed these proceedings first on behalf of his clients, he later on filed Milimani HCCHRPET E398 of 2026 in his own name where interim orders were issued. This conduct is in abuse of the court process ana I must necessarily deprecate the same.
41. Accordingly, while the allegations are serious and the public interest in lawful procurement is unquestionable, the Court is not satisfied that the Applicants have disclosed a proper judicial-review case fit for further consideration under Order 53. The leave threshold is therefore not met.
42. The answer to the first issue is consequently in the negative.
II. Whether, if granted, should operate as a stay and whether interim preservation orders should issue
43. Having found that the Applicants have not established a proper and arguable case warranting leave under Order 53, the second issue is necessarily consequential. Order 53 rule 1(4) makes the grant of leave a prerequisite to the commencement of the substantive judicial review proceedings and permits the Court, where leave is granted, to direct that the grant of leave operate as a stay of the proceedings or decision to which the application relates. Accordingly, having declined to grant leave, I find no basis upon which to grant the consequential orders of stay, prohibition or interim preservation sought by the Applicants.
E. DISPOSITION
44. Consequently, the Chamber Summons dated 4 th June 2026 is hereby dismissed with no orders as to costs.
Dated and Delivered this 17 th day of September, 2026.
NABIL M. ORINA
JUDGE
RULING DELIVERED VIRTUALLY IN THE PRESENCE OF:
Mr. Maruti for the 1 st and 2 nd Interested Parties
Mr. Mbaka h/b for Ms. Wambugu for the 4 th Interested Party
Lucy - Court Assistant
Ruling - Nairobi (Milimani) HCJR No. E172 of 2026