Introduction
1. The Petition dated 30 th June 2017 was amended on 17 th September 2020 and is supported by the Petitioner’s supporting affidavit of similar date. This litigation revolves around the findings and recommendations of the National Assembly’s Public Accounts Committee (PAC) contained in its report on the Special Audit of the National Youth Service (NYS) which found the Petitioner culpable for procurement irregularities and abuse of office during his tenure as the Principal Supply Chain Management Officer at the NYS. Consequently, the Petitioner challenges the legality of the Committee's adverse findings against him asserting that the same was reached in breach of the rules of natural justice, without affording him a fair hearing and in disregard of the evidence and applicable procurement law. Accordingly, the Petitioner seeks the following relief against the Respondents:
a) A declaration that paragraph 3.1.35. part 5, paragraph 10 and recommendations 3 and 14 of part VI (Recommendations) of the Report of the Public Accounts Committee inquiring into the happenings at the National Youth Service violate the Petitioner's rights guaranteed by Articles 27 and 50 of the Constitution.
b) An order of certiorari to bring into this court and quash paragraph 3.1.35. part 5, paragraph 10, and recommendations 3 and 14 of part VI (Recommendations) of the Report of the Public Accounts Committee inquiring into the happenings at the National Youth Service.
c) An order of prohibition directed at the 3 rd Respondent prohibiting them from taking any action against the Petitioner on the strength of the observations, findings and recommendations at paragraph 3.1.35, part 5, paragraph 10, and recommendations 3 and 14 of part VI (Recommendations) of the Report of the Public Accounts Committee inquiring into the happenings at the National Youth Service Costs of and incidental to this Petition.
d) An award of special damages for loss of employment and general damages for causing a wrong repute to the Petitioner and thus making it difficult to get employment.
e) Such other or further orders as the court may deem just and expedient to grant.
Petitioner’s Case
2. The Petitioner depones that he served as the principal supply chain management officer at the National Youth Service (NYS) after joining the government as a supplies officer in 1994 and rising through the ranks. He informs that his responsibilities under the Public Procurement and Disposal Act, 2005 and the Public Procurement and Disposal Regulations, 2006 included managing suppliers, ensuring procurements complied with the law, and authorizing payments only upon certification by the inspection and acceptance committee that goods had been supplied in the requisite quantities and standards. He asserts that he discharged those duties diligently until changes occurred in the government's procurement structure fundamentally altering the procurement process within the Ministry.
3. According to the Petitioner, following a resolution by the 11 th Cabinet, Cabinet Secretaries assumed supervisory and approval powers over procurement matters that had previously been exercised by Principal Secretaries as accounting officers. He further avers that the Public Service Commission delegated additional human resource functions to Cabinet Secretaries, leading to extensive restructuring within the NYS. As a consequence, the then Cabinet Secretary allegedly deployed advisors to various departments to oversee and micro-manage procurement operations, resulting in frequent changes of senior procurement officers and creating an environment susceptible to procurement malpractice.
4. He further informs that some procurement processes were initiated, concluded and later transferred to the NYS by the Ministry itself. He notes that many of the suppliers questioned during subsequent investigations had been pre-qualified by the Ministry of Public Works and supplied common-user items at competitive prices. The Petitioner depones that upon observing procurement irregularities, he personally contacted the Ethics and Anti-Corruption Commission (EACC) seeking its intervention and advice regarding the happenings at the NYS. He however decries that this evidence was ignored during the subsequent 1 st Respondent’s investigations.
5. He avers that on 18 th November 2014, he was confronted by the then Cabinet Secretary for allegedly delaying the process and was thereafter issued with a show cause letter dated 20 th February 2015. He maintains that he was instructed by the Cabinet Secretary to utilize existing supplies branch contracts and that only a limited number of contractors under those contracts could supply the required construction materials. He argues that this evidence remained uncontroverted but was disregarded by the 1 st Respondent in its investigations.
6. The Petitioner further states that vide a letter dated 5 th October 2016 and 19 th October 2016, he was invited by the Public Accounts Committee (PAC) to respond to issues arising from the Auditor-General's Special Audit Report on the NYS. The Committee requested him to prepare a comprehensive report addressing, among other matters, the procurement plan, procurement relating to the Kibera road project valued at Ksh.791,385,000, alleged use of forged supplies branch contracts, payments for various supplies amounting to Kshs. 609,252,760.60, consultancy services, publicity contracts, among others. He depones that he complied by submitting a comprehensive written response and was subsequently invited to appear before the Committee on 26 th October 2016, where he also gave oral evidence.
7. The Petitioner complains that despite his written and oral explanations, the Committee disregarded the evidence he presented and proceeded to make adverse findings against him. Specifically, the Committee found that he had failed to discharge his duties effectively, approved procurement founded on forged supplies branch contracts, failed to verify the authenticity of those contracts, approved fraudulent payments through IFMIS, failed to ensure compliance with procurement regulations, and was culpable for abuse of office and lastly, contravened the Public Procurement and Disposal Act, 2005 and the Regulations, thereby occasioning loss of public funds. The Petitioner alleges that those findings were reached in disregard of the evidence before the Committee and were inconsistent with other observations contained in the Committee's own report.
8. He as well argues that several of the adverse findings were made without affording him an opportunity to respond to the specific allegations. Particularly, he asserts that he was only requested to explain the documentary support relating to payments amounting to Kshs. 609,252,760.60, but was never asked to address allegations that the relevant supplies branch contract was forged, before the Committee concluded that he had approved a fraudulent procurement. Similarly, he maintains that findings concerning the alleged fraudulent double payment to the Consulting House and the purported fraudulent procurement of goods and services amounting to Ksh. 695,400,000 were made without those issues ever being put to him for explanation. He therefore postulates that the Committee violated the rules of natural justice by condemning him on matters in respect of which he was never heard.
9. The Petitioner also asserts that several of the Committee's conclusions were legally and factually erroneous because they demonstrated a misunderstanding of his statutory mandate and the procurement process under the IFMIS system. He contends that the Committee wrongly concluded that procurements exceeding Kshs. 2 million required ratification by the Ministerial Tender Committee under Regulation 10(2)(h) of the Public Procurement Regulations, whereas supplies branch transactions were governed by different legal provisions and did not require such ratification.
10. He further stresses that acquisitions from the supplies branch were not public procurements within the meaning of the procurement law and that the Committee ignored evidence relating to other forged contracts originating from the supplies branch. He consequently contends that the impugned findings were irrational, procedurally unfair, unsupported by the evidence and reached in disregard of the applicable law, thereby violating his constitutional rights. Additionally, he asserts that as a result of the 1 st and 2 nd Respondents’ action, he lost his employment due to the false accusations which tarnished his name and reputation, making it extremely difficult for him to secure employment thereafter.
1 st and 2 nd Respondents’ Case
11. In reaction to the Petitioner’s case, these Respondents filed Grounds of Opposition dated 14 th July 2017 on the basis that:
i. Parliamentary privilege which underpins the independence of the legislature does not allow for decisions of either House or its Speaker to be questioned by any court and therefore this Petition violates the provisions of Article 117 of the Constitution as well as the principle set out by the Court of Appeal in Civil Appeal No. 157 of 2009; John Harun Mwau vs Dr. Andrew Mullei & Others .
ii. Pursuant to the holding in Civil Appeal No.157 of 2009: John Harun Mwau vs Dr.Andrew Mullei & Others , this Court should refrain from interfering with parliamentary proceedings and the Court ought to decline to grant the judicial review remedy sought of quashing a Report of Parliament thereby unduly interfering with the process of Parliament as sought by the Petitioners.
iii. The Report of the Public Accounts Committee on the Special Audit Report on the Accounts of the National Youth Service (NYS) was prepared pursuant to the oversight role of Parliament over state organs by conducting investigations and enquiries into matters relating to its mandate as provided in Article 95 the Constitution and under the doctrine of separation of powers, this Court ought to restrain itself from interfering with the mandate of Parliament.
iv. The National Assembly has a duty under the supreme law of Kenya to exercise oversight over national revenue and expenditure as provided in Articles 95(4) (c) and Article 95(5)(b) of the Constitution and the instant Application is an attempt to veto the National Assembly's oversight constitutional duty.
v. The Notice of Motion Application and the Petition lack any basis in law as the orders sought violate the constitutional power granted to Parliament to regulate its internal rules of procedure as well as the National Assembly (Powers and Privileges) Act.
vi. The Petitioner herein seeks orders barring the 3 rd Respondent herein from executing its mandate as provided in Article 157 of the Constitution and is an attempt to block a Report of Parliament which represents the will of the people and public interest.
vii. The Petition herein seeks for this Court to delve into the merits of the decisions of the Public Accounts Committee of the National Assembly and therefore this Court ought to decline from sitting as an appellate court from the decision of a committee of the National Assembly.
viii. The jurisdiction of this Court is limited to a review of the process employed by the National Assembly that led to the publication of the report, but the Court ought not to delve into the substance or merits of the report.
ix. Any person aggrieved by any contents of a report adopted by a House Committee has the right in the first instance to appeal against the decision. The Petitioner did not exercise its right of appeal when the report was finalized and tabled for adoption. The Petitioner cannot therefore turn to this Court to appeal such a grievance since under Article 125 of the Constitution, both the High Court and a House of Parliament and/or of its Committees exercising the power under Article 125 of the Constitution, have concurrent jurisdiction.
x. Each of the three arms of Government ought to be allowed to conduct its affairs without undue interference from the other arms of Government and this Petition is a violation of the principle of separation of powers as it seeks for the Court to delve into matters of internal procedure of the Legislature.
xi. The jurisdiction of this Court can only be invoked in the event of an excess of jurisdiction by way of breach of the Constitution and there has been no violation of the Constitution.
12. Additionally, the 1 st and 2 nd Respondents filed a Replying Affidavit sworn on 12 th October 2017 by Michael Sialai, the then Clerk of the National Assembly and a further supplementary affidavit sworn on 4 th April 2025 by Samuel Njoroge, the current Clerk of the National Assembly.
13. It is stated that pursuant to Standing Order No. 205(2) of the National Assembly Standing Orders, the PAC executes its mandate on the basis of annual and special audit reports. In that regard, the PAC requested the Auditor-General to undertake a Special Audit of the books of account of the NYS following widespread media reports concerning an alleged financial misappropriation scandal. According to the Auditor-General's Special Audit Report, the audit uncovered massive fraudulent activities involving losses amounting to Ksh. 791,385,000 and Ksh. 609,252,760.60, together with an attempted fraudulent payment of Ksh. 695,400,000, among other procurement irregularities.
14. It is deponed that by a letter dated 5 th October 2016, the 2 nd Respondent invited the Petitioner to appear before the PAC and provide information regarding the Auditor-General's findings. The Petitioner honoured that invitation and appeared before the Committee on 18 th October 2016. Thereafter, he was invited to attend a further inquiry before the Committee on 26 th October 2016.
15. He depones that upon concluding its investigations, the PAC prepared its report based on the documentary evidence presented and the testimony of witnesses, including that of the Petitioner. The Committee found that procurement procedures at the NYS had been blatantly breached, with tenders being awarded to firms lacking the requisite experience and supporting documentation. In particular, it found that the Petitioner's office utilized unverified Supplies Branch contracts without conducting due diligence and failed to submit procurements to the Ministerial Tender Committee for review and approval as required by law. Consequently, the PAC found the Petitioner, in his capacity as Head of Procurement, culpable for failing to discharge his statutory duties.
16. Particularly, the Committee found that the Petitioner approved procurement in IFMIS using fake Supplies Branch contracts amounting to Ksh. 609,252,760.60; approved a forged Supplies Branch contract without verifying its authenticity for the procurement of goods and services valued at Ksh. 791,385,000 and Ksh. 609,252,760.60; approved a fraudulent double payment of Ksh. 12.5 million to M/s Consulting House through IFMIS and approved a fraudulent procurement of goods and services amounting to Ksh.695,400,000, which was subsequently detected and reversed.
17. He further avers the PAC established that the Petitioner failed to ensure that all procurements exceeding Ksh. 2,000,000 were approved by the Ministerial Tender Committee, contrary to Section 10(2)(h) of the Public Procurement and Disposal Regulations, 2006. Ultimately, the Committee found the Petitioner culpable of abuse of office and directly liable for contravening the Public Procurement and Disposal Act, 2005 and the Regulations made thereunder. He stressed that this conduct led to the loss of public funds at the NYS. He depones that the PAC Report was subsequently adopted by the National Assembly on 24 th May 2017 following a motion moved by Hon. (Eng.) Gumbo on 17 th May 2017.
18. He maintains that the PAC Report and its recommendations were prepared strictly within the Committee's constitutional and statutory mandate and that any recommendations touching on criminal investigations were subject to the independent consideration of the 3 rd Respondent. He asserts that the entire process culminating in the adoption of the Report fell squarely within the constitutional mandate of the National Assembly. Consequently, relying on the doctrine of separation of powers, he contends that the Court ought to exercise judicial restraint and refrain from interfering with Parliament's oversight mandate under Articles 95(4)(c) and 95(5)(b) of the Constitution. He as well argues that the Petitioner is improperly inviting the Court to sit on appeal against a decision of the National Assembly, contrary to the constitutional framework. Equally he notes that parliamentary privilege precludes courts from questioning proceedings or decisions of either House of Parliament.
19. Furthermore, he asserts that the Petitioner's allegation that he was denied an opportunity to be heard is false and an afterthought. He depones that the Petitioner was afforded sufficient opportunity to prepare and present his written submissions, as requested in the Committee's invitation letter, and to orally address the Committee during its proceedings. According to him, despite being afforded several opportunities to defend himself, the Petitioner voluntarily declined to fully utilize them.
20. It is further deponed that any person aggrieved by the contents of a report adopted by a House Committee ought, in the first instance, to challenge the report through the available parliamentary processes, which the Petitioner failed to do. On this basis, he argued that the Petitioner could not invoke the jurisdiction of this Court as an appellate forum against the findings of the Committee. He asserts that under Article 125 of the Constitution, Parliament and its Committees exercise powers equivalent to those of the High Court in summoning witnesses and receiving evidence. In his opinion, the Petitioner ought to have challenged the Committee's findings immediately after publication of the Report. Consequently, he maintains that this Court's jurisdiction can only be invoked where there had been an excess of jurisdiction or a breach of the Constitution, neither of which have been demonstrated in the instant case.
21. In the further supplementary affidavit, it is deponed that prior to the PAC inquiry, the Petitioner had already been charged before the Chief Magistrate's Court at Milimani in Criminal Case No. 1905 of 2015 with conspiracy to defraud the National Youth Service of Kshs. 791 million. Subsequently, on 31 st October 2024, the Petitioner was convicted of making a false document contrary to Section 347(a) as read with Section 349 of the Penal Code, as well as breach of trust by a person employed in the public service contrary to Section 127(1) as read with Section 127(2) of the Penal Code. On that premise, he asserts that the Petitioner suffered no prejudice from the PAC Report, as the criminal court ultimately found him guilty in relation to substantially the same matters that formed the basis of the Committee's findings.
3 rd Respondent’s Case
22. In opposition to the Petition, the 3 rd Respondent filed a Replying Affidavit sworn on 13 th February 2018 by the Prosecution Counsel, Laura Spira.
23. She depones that following the investigations into the alleged theft of approximately Kshs. 791 million from the NYS, a total of 26 suspects, including the Petitioner, were charged in Criminal Case No. 1905 of 2015 , with further investigations also being undertaken into suspected money laundering arising from the same transactions.
24. She states that the decision to prosecute the Petitioner was reached upon consideration of the evidence gathered during investigations and pursuant to the constitutional powers conferred upon the 3 rd Respondent under Article 157 of the Constitution. She denies that the decision was influenced by the findings contained in the PAC’s report or by any other extraneous considerations. Rather, she maintains that the 3 rd Respondent independently applied both the evidentiary and public interest tests before approving the charges.
25. With regard to the Petitioner's account of his duties as the principal supply chain management officer, she asserts that the Petition essentially raises matters of defence which can only be determined during the criminal trial. Equally, she stresses that whether the Petitioner acted lawfully in the discharge of his duties, whether he bore criminal responsibility and the extent of his participation in the impugned transactions are issues to be established through evidence tendered before the trial court. She further avers that under Section 20 of the Penal Code, criminal liability extends to all persons who participate in the commission of an offence and therefore the Petitioner's assertion that he played only a nominal role cannot absolve him of criminal responsibility.
26. She further states that the Petitioner admitted examining 25 payment vouchers, which formed part of the transactions giving rise to the criminal charges. Moreover, she avers that institutional changes within the Ministry or the alleged reassignment of procurement functions did not exempt the Petitioner from complying with the law, particularly as there was no evidence that he had raised objections to those changes with the relevant authorities at the time.
27. In response to the Petitioner's allegations concerning procurement procedures at the NYS, she emphasizes that the criminal charges relate primarily to offences of theft, fraud and conspiracy arising from payments made to suppliers, rather than the procurement process itself and as such contends that the Petitioner cannot rely on the alleged irregularities in the procurement process to establish his innocence within the constitutional proceedings.
28. She further maintains that the 3 rd Respondent is an independent constitutional body that is not bound by recommendations or decisions made by investigative agencies or parliamentary committees. She states that, in deciding whether to prosecute, the 3 rd Respondent considered the sufficiency, admissibility and availability of the evidence together with the public interest requirements under Article 157(11) of the Constitution. She notes that the Petitioner failed to demonstrate how those constitutional standards were violated or how the 3 rd Respondent had been improperly influenced by the PAC report.
29. Finally, it is deponed that the 3 rd Respondent assembled substantial evidence against the Petitioner, including more than 55 witnesses and numerous documentary exhibits, all of which would be presented during the criminal trial. She underscores that questions regarding the sufficiency, admissibility and credibility of that evidence fall within the exclusive jurisdiction of the trial court and cannot properly be determined through a constitutional petition. She as such denies that the prosecution was actuated by malice, bad faith, harassment, abuse of process or any ulterior motive. She points out that the Petitioner would in any case enjoy all the safeguards of a fair trial under Article 50 of the Constitution. Consequently, she urges the Court to dismiss the Petition.
Parties’ Submissions
Petitioner’s
30. The Petitioner through LAK advocates filed submissions dated 23 rd October 2017 and supplementary submissions dated 23 rd October 2025. In the first set of submissions, Counsel outlined the issues for determination as: whether the 1 st Respondent’s decision against the Petitioner was procedurally fair, whether the 1 st Respondent’s finding that the Petitioner was culpable of abuse of office and contravening the Public Procurement and Disposal Act was reasonable and whether there existed reasonable or probable cause for the 3 rd Respondent to investigate or prosecute the Petitioner on the basis of the recommendations made by the 1 st and 2 nd Respondents .
31. On the first issue, Counsel submitted that although the Petitioner had been invited by the PAC to appear before it and prepare a comprehensive report concerning the special audit on the NYS, the Committee ultimately disregarded his submissions when making its findings and recommendations and proceeded to hold him culpable for various procurement irregularities. Relying on Article 47 of the Constitution and Sections 4 and 7(2)(v) of the Fair Administrative Action Act, Counsel contended that procedural fairness required that the Petitioner be furnished with the evidence against him, afforded an opportunity to challenge that evidence through cross-examination where appropriate, present rebuttal evidence and address the decision-maker before adverse findings were made. Counsel maintained that the Petitioner was never heard as pertains several critical allegations, including the alleged approval of fraudulent procurements amounting to hundreds of millions of shillings and the alleged double payment to Consulting House Ltd. Considering this, Counsel underscored that PAC’s findings were reached in violation of the rules of natural justice.
32. In support of this argument, Counsel relied on Onyango Oloo v Attorney General [1986–1989] EA 456 , where the Court held that the right to be heard is a fundamental principle of natural justice and that a decision reached in breach of that principle is null and void regardless of whether the same outcome would have been reached. Comparable reliance was placed on Republic v Chief Justice of Kenya ex parte Moijo Mataiya Ole Keiwua [2010] eKLR .
33. Counsel, on the second issue argued that the impugned decision was unreasonable within the meaning of Article 47 of the Constitution, the Fair Administrative Action Act and Article 24 of the Constitution. Counsel submitted that the Committee failed to consider material evidence that demonstrated the impugned procurements were undertaken at the headquarters of the Ministry of Devolution and not by the Petitioner personally. Counsel referred to a circular issued by the Ministry of Public Works directing all government ministries and departments to procure building materials from a prescribed list of suppliers, which, according to Counsel, demonstrated that procurement decisions were centrally coordinated. Counsel therefore contended that the Committee ignored relevant evidence in attributing the procurement irregularities solely to him.
34. Reliance was placed on Associated Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 , where it was held that:
“The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which ought not to have been taken into account or conversely have refused to take into account or neglected o take into account.”
35. Counsel further argued that documentary evidence demonstrated that the Petitioner had previously been issued with a show-cause letter by the then Cabinet Secretary, in February 2015 for allegedly delaying supplies because he insisted on compliance with lawful procurement procedures. Counsel referred to a memorandum dated 28 th January 2015 in which he requested verification of requisitions before procurement could proceed. Counsel contended that this demonstrated the Petitioner’s commitment to lawful procurement rather than participation in the alleged fraud. Tying to this, Counsel submitted that there was no involvement whatsoever by the Petitioner in the procurement of consultancy services awarded to Consulting House Ltd. Counsel noted that the consultancy originated from a proposal by Mutahi Ngunyi and approved by the Ministerial Tender Committee without his participation, that the same was negotiated by that Committee, and formally communicated by the Director General of the NYS. In light of this, Counsel stressed that the finding that he approved the alleged fraudulent double payment of Kshs. 12.5 million was unsupported by any evidence.
36. Turning to the third issue, Counsel submitted that, since the recommendations made by the 1 st and 2 nd Respondents were procedurally unfair and unreasonable, they could not constitute a lawful basis for criminal investigations or prosecution by the 3 rd Respondent. Counsel contended that there existed no reasonable or probable cause to investigate or prosecute the Petitioner. To buttress this point reliance was placed on Stephen Gachau Githaiga v Attorney General [2015] eKLR , where the Court observed that:
“A reasonable and probable cause is an honest belief founded upon reasonable grounds that would lead a prudent and cautious person to conclude that the accused was probably guilty of the offence alleged.”
37. On this premise, Counsel underscored that any criminal investigation or prosecution founded upon the impugned recommendations would unjustifiably limit his constitutional rights under Articles 24 and 47 of the Constitution. Reliance was placed on Kuria & 3 Others v Attorney General [2002] 2 KLR 69 , where the High Court held that courts have both the power and duty to prohibit criminal prosecutions that are instituted for improper purposes or which amount to oppression, vexation or an abuse of the court process. Equal reliance was placed on In Re the Matter of the Interim Independent Electoral Commission [2011] eKLR . To that end, Counsel urged the Court to prohibit the 3 rd Respondent from prosecuting the Petitioner on the basis of the impugned recommendations.
38. In the supplementary submissions, Counsel highlighted the key issues as: whether the Petitioner is entitled to general damages for violation of his constitutional rights and causing him bad repute and whether the Petitioner is entitled to special damages for loss of employment .
39. Counsel on the first issue submitted that the Petitioner having establishe
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1. The Petition dated 30 th June 2017 was amended on 17 th September 2020 and is supported by the Petitioner’s supporting affidavit of similar date. This litigation revolves around the findings and recommendations of the National Assembly’s Public Accounts Committee (PAC) contained in its report on the Special Audit of the National Youth Service (NYS) which found the Petitioner culpable for procurement irregularities and abuse of office during his tenure as the Principal Supply Chain Management Officer at the NYS. Consequently, the Petitioner challenges the legality of the Committee's adverse findings against him asserting that the same was reached in breach of the rules of natural justice, without affording him a fair hearing and in disregard of the evidence and applicable procurement law. Accordingly, the Petitioner seeks the following relief against the Respondents:
a) A declaration that paragraph 3.1.35. part 5, paragraph 10 and recommendations 3 and 14 of part VI (Recommendations) of the Report of the Public Accounts Committee inquiring into the happenings at the National Youth Service violate the Petitioner's rights guaranteed by Articles 27 and 50 of the Constitution.
b) An order of certiorari to bring into this court and quash paragraph 3.1.35. part 5, paragraph 10, and recommendations 3 and 14 of part VI (Recommendations) of the Report of the Public Accounts Committee inquiring into the happenings at the National Youth Service.
c) An order of prohibition directed at the 3 rd Respondent prohibiting them from taking any action against the Petitioner on the strength of the observations, findings and recommendations at paragraph 3.1.35, part 5, paragraph 10, and recommendations 3 and 14 of part VI (Recommendations) of the Report of the Public Accounts Committee inquiring into the happenings at the National Youth Service Costs of and incidental to this Petition.
d) An award of special damages for loss of employment and general damages for causing a wrong repute to the Petitioner and thus making it difficult to get employment.
e) Such other or further orders as the court may deem just and expedient to grant.
Petitioner’s Case
2. The Petitioner depones that he served as the principal supply chain management officer at the National Youth Service (NYS) after joining the government as a supplies officer in 1994 and rising through the ranks. He informs that his responsibilities under the Public Procurement and Disposal Act, 2005 and the Public Procurement and Disposal Regulations, 2006 included managing suppliers, ensuring procurements complied with the law, and authorizing payments only upon certification by the inspection and acceptance committee that goods had been supplied in the requisite quantities and standards. He asserts that he discharged those duties diligently until changes occurred in the government's procurement structure fundamentally altering the procurement process within the Ministry.
3. According to the Petitioner, following a resolution by the 11 th Cabinet, Cabinet Secretaries assumed supervisory and approval powers over procurement matters that had previously been exercised by Principal Secretaries as accounting officers. He further avers that the Public Service Commission delegated additional human resource functions to Cabinet Secretaries, leading to extensive restructuring within the NYS. As a consequence, the then Cabinet Secretary allegedly deployed advisors to various departments to oversee and micro-manage procurement operations, resulting in frequent changes of senior procurement officers and creating an environment susceptible to procurement malpractice.
4. He further informs that some procurement processes were initiated, concluded and later transferred to the NYS by the Ministry itself. He notes that many of the suppliers questioned during subsequent investigations had been pre-qualified by the Ministry of Public Works and supplied common-user items at competitive prices. The Petitioner depones that upon observing procurement irregularities, he personally contacted the Ethics and Anti-Corruption Commission (EACC) seeking its intervention and advice regarding the happenings at the NYS. He however decries that this evidence was ignored during the subsequent 1 st Respondent’s investigations.
5. He avers that on 18 th November 2014, he was confronted by the then Cabinet Secretary for allegedly delaying the process and was thereafter issued with a show cause letter dated 20 th February 2015. He maintains that he was instructed by the Cabinet Secretary to utilize existing supplies branch contracts and that only a limited number of contractors under those contracts could supply the required construction materials. He argues that this evidence remained uncontroverted but was disregarded by the 1 st Respondent in its investigations.
6. The Petitioner further states that vide a letter dated 5 th October 2016 and 19 th October 2016, he was invited by the Public Accounts Committee (PAC) to respond to issues arising from the Auditor-General's Special Audit Report on the NYS. The Committee requested him to prepare a comprehensive report addressing, among other matters, the procurement plan, procurement relating to the Kibera road project valued at Ksh.791,385,000, alleged use of forged supplies branch contracts, payments for various supplies amounting to Kshs. 609,252,760.60, consultancy services, publicity contracts, among others. He depones that he complied by submitting a comprehensive written response and was subsequently invited to appear before the Committee on 26 th October 2016, where he also gave oral evidence.
7. The Petitioner complains that despite his written and oral explanations, the Committee disregarded the evidence he presented and proceeded to make adverse findings against him. Specifically, the Committee found that he had failed to discharge his duties effectively, approved procurement founded on forged supplies branch contracts, failed to verify the authenticity of those contracts, approved fraudulent payments through IFMIS, failed to ensure compliance with procurement regulations, and was culpable for abuse of office and lastly, contravened the Public Procurement and Disposal Act, 2005 and the Regulations, thereby occasioning loss of public funds. The Petitioner alleges that those findings were reached in disregard of the evidence before the Committee and were inconsistent with other observations contained in the Committee's own report.
8. He as well argues that several of the adverse findings were made without affording him an opportunity to respond to the specific allegations. Particularly, he asserts that he was only requested to explain the documentary support relating to payments amounting to Kshs. 609,252,760.60, but was never asked to address allegations that the relevant supplies branch contract was forged, before the Committee concluded that he had approved a fraudulent procurement. Similarly, he maintains that findings concerning the alleged fraudulent double payment to the Consulting House and the purported fraudulent procurement of goods and services amounting to Ksh. 695,400,000 were made without those issues ever being put to him for explanation. He therefore postulates that the Committee violated the rules of natural justice by condemning him on matters in respect of which he was never heard.
9. The Petitioner also asserts that several of the Committee's conclusions were legally and factually erroneous because they demonstrated a misunderstanding of his statutory mandate and the procurement process under the IFMIS system. He contends that the Committee wrongly concluded that procurements exceeding Kshs. 2 million required ratification by the Ministerial Tender Committee under Regulation 10(2)(h) of the Public Procurement Regulations, whereas supplies branch transactions were governed by different legal provisions and did not require such ratification.
10. He further stresses that acquisitions from the supplies branch were not public procurements within the meaning of the procurement law and that the Committee ignored evidence relating to other forged contracts originating from the supplies branch. He consequently contends that the impugned findings were irrational, procedurally unfair, unsupported by the evidence and reached in disregard of the applicable law, thereby violating his constitutional rights. Additionally, he asserts that as a result of the 1 st and 2 nd Respondents’ action, he lost his employment due to the false accusations which tarnished his name and reputation, making it extremely difficult for him to secure employment thereafter.
1 st and 2 nd Respondents’ Case
11. In reaction to the Petitioner’s case, these Respondents filed Grounds of Opposition dated 14 th July 2017 on the basis that:
i. Parliamentary privilege which underpins the independence of the legislature does not allow for decisions of either House or its Speaker to be questioned by any court and therefore this Petition violates the provisions of Article 117 of the Constitution as well as the principle set out by the Court of Appeal in Civil Appeal No. 157 of 2009; John Harun Mwau vs Dr. Andrew Mullei & Others .
ii. Pursuant to the holding in Civil Appeal No.157 of 2009: John Harun Mwau vs Dr.Andrew Mullei & Others , this Court should refrain from interfering with parliamentary proceedings and the Court ought to decline to grant the judicial review remedy sought of quashing a Report of Parliament thereby unduly interfering with the process of Parliament as sought by the Petitioners.
iii. The Report of the Public Accounts Committee on the Special Audit Report on the Accounts of the National Youth Service (NYS) was prepared pursuant to the oversight role of Parliament over state organs by conducting investigations and enquiries into matters relating to its mandate as provided in Article 95 the Constitution and under the doctrine of separation of powers, this Court ought to restrain itself from interfering with the mandate of Parliament.
iv. The National Assembly has a duty under the supreme law of Kenya to exercise oversight over national revenue and expenditure as provided in Articles 95(4) (c) and Article 95(5)(b) of the Constitution and the instant Application is an attempt to veto the National Assembly's oversight constitutional duty.
v. The Notice of Motion Application and the Petition lack any basis in law as the orders sought violate the constitutional power granted to Parliament to regulate its internal rules of procedure as well as the National Assembly (Powers and Privileges) Act.
vi. The Petitioner herein seeks orders barring the 3 rd Respondent herein from executing its mandate as provided in Article 157 of the Constitution and is an attempt to block a Report of Parliament which represents the will of the people and public interest.
vii. The Petition herein seeks for this Court to delve into the merits of the decisions of the Public Accounts Committee of the National Assembly and therefore this Court ought to decline from sitting as an appellate court from the decision of a committee of the National Assembly.
viii. The jurisdiction of this Court is limited to a review of the process employed by the National Assembly that led to the publication of the report, but the Court ought not to delve into the substance or merits of the report.
ix. Any person aggrieved by any contents of a report adopted by a House Committee has the right in the first instance to appeal against the decision. The Petitioner did not exercise its right of appeal when the report was finalized and tabled for adoption. The Petitioner cannot therefore turn to this Court to appeal such a grievance since under Article 125 of the Constitution, both the High Court and a House of Parliament and/or of its Committees exercising the power under Article 125 of the Constitution, have concurrent jurisdiction.
x. Each of the three arms of Government ought to be allowed to conduct its affairs without undue interference from the other arms of Government and this Petition is a violation of the principle of separation of powers as it seeks for the Court to delve into matters of internal procedure of the Legislature.
xi. The jurisdiction of this Court can only be invoked in the event of an excess of jurisdiction by way of breach of the Constitution and there has been no violation of the Constitution.
12. Additionally, the 1 st and 2 nd Respondents filed a Replying Affidavit sworn on 12 th October 2017 by Michael Sialai, the then Clerk of the National Assembly and a further supplementary affidavit sworn on 4 th April 2025 by Samuel Njoroge, the current Clerk of the National Assembly.
13. It is stated that pursuant to Standing Order No. 205(2) of the National Assembly Standing Orders, the PAC executes its mandate on the basis of annual and special audit reports. In that regard, the PAC requested the Auditor-General to undertake a Special Audit of the books of account of the NYS following widespread media reports concerning an alleged financial misappropriation scandal. According to the Auditor-General's Special Audit Report, the audit uncovered massive fraudulent activities involving losses amounting to Ksh. 791,385,000 and Ksh. 609,252,760.60, together with an attempted fraudulent payment of Ksh. 695,400,000, among other procurement irregularities.
14. It is deponed that by a letter dated 5 th October 2016, the 2 nd Respondent invited the Petitioner to appear before the PAC and provide information regarding the Auditor-General's findings. The Petitioner honoured that invitation and appeared before the Committee on 18 th October 2016. Thereafter, he was invited to attend a further inquiry before the Committee on 26 th October 2016.
15. He depones that upon concluding its investigations, the PAC prepared its report based on the documentary evidence presented and the testimony of witnesses, including that of the Petitioner. The Committee found that procurement procedures at the NYS had been blatantly breached, with tenders being awarded to firms lacking the requisite experience and supporting documentation. In particular, it found that the Petitioner's office utilized unverified Supplies Branch contracts without conducting due diligence and failed to submit procurements to the Ministerial Tender Committee for review and approval as required by law. Consequently, the PAC found the Petitioner, in his capacity as Head of Procurement, culpable for failing to discharge his statutory duties.
16. Particularly, the Committee found that the Petitioner approved procurement in IFMIS using fake Supplies Branch contracts amounting to Ksh. 609,252,760.60; approved a forged Supplies Branch contract without verifying its authenticity for the procurement of goods and services valued at Ksh. 791,385,000 and Ksh. 609,252,760.60; approved a fraudulent double payment of Ksh. 12.5 million to M/s Consulting House through IFMIS and approved a fraudulent procurement of goods and services amounting to Ksh.695,400,000, which was subsequently detected and reversed.
17. He further avers the PAC established that the Petitioner failed to ensure that all procurements exceeding Ksh. 2,000,000 were approved by the Ministerial Tender Committee, contrary to Section 10(2)(h) of the Public Procurement and Disposal Regulations, 2006. Ultimately, the Committee found the Petitioner culpable of abuse of office and directly liable for contravening the Public Procurement and Disposal Act, 2005 and the Regulations made thereunder. He stressed that this conduct led to the loss of public funds at the NYS. He depones that the PAC Report was subsequently adopted by the National Assembly on 24 th May 2017 following a motion moved by Hon. (Eng.) Gumbo on 17 th May 2017.
18. He maintains that the PAC Report and its recommendations were prepared strictly within the Committee's constitutional and statutory mandate and that any recommendations touching on criminal investigations were subject to the independent consideration of the 3 rd Respondent. He asserts that the entire process culminating in the adoption of the Report fell squarely within the constitutional mandate of the National Assembly. Consequently, relying on the doctrine of separation of powers, he contends that the Court ought to exercise judicial restraint and refrain from interfering with Parliament's oversight mandate under Articles 95(4)(c) and 95(5)(b) of the Constitution. He as well argues that the Petitioner is improperly inviting the Court to sit on appeal against a decision of the National Assembly, contrary to the constitutional framework. Equally he notes that parliamentary privilege precludes courts from questioning proceedings or decisions of either House of Parliament.
19. Furthermore, he asserts that the Petitioner's allegation that he was denied an opportunity to be heard is false and an afterthought. He depones that the Petitioner was afforded sufficient opportunity to prepare and present his written submissions, as requested in the Committee's invitation letter, and to orally address the Committee during its proceedings. According to him, despite being afforded several opportunities to defend himself, the Petitioner voluntarily declined to fully utilize them.
20. It is further deponed that any person aggrieved by the contents of a report adopted by a House Committee ought, in the first instance, to challenge the report through the available parliamentary processes, which the Petitioner failed to do. On this basis, he argued that the Petitioner could not invoke the jurisdiction of this Court as an appellate forum against the findings of the Committee. He asserts that under Article 125 of the Constitution, Parliament and its Committees exercise powers equivalent to those of the High Court in summoning witnesses and receiving evidence. In his opinion, the Petitioner ought to have challenged the Committee's findings immediately after publication of the Report. Consequently, he maintains that this Court's jurisdiction can only be invoked where there had been an excess of jurisdiction or a breach of the Constitution, neither of which have been demonstrated in the instant case.
21. In the further supplementary affidavit, it is deponed that prior to the PAC inquiry, the Petitioner had already been charged before the Chief Magistrate's Court at Milimani in Criminal Case No. 1905 of 2015 with conspiracy to defraud the National Youth Service of Kshs. 791 million. Subsequently, on 31 st October 2024, the Petitioner was convicted of making a false document contrary to Section 347(a) as read with Section 349 of the Penal Code, as well as breach of trust by a person employed in the public service contrary to Section 127(1) as read with Section 127(2) of the Penal Code. On that premise, he asserts that the Petitioner suffered no prejudice from the PAC Report, as the criminal court ultimately found him guilty in relation to substantially the same matters that formed the basis of the Committee's findings.
3 rd Respondent’s Case
22. In opposition to the Petition, the 3 rd Respondent filed a Replying Affidavit sworn on 13 th February 2018 by the Prosecution Counsel, Laura Spira.
23. She depones that following the investigations into the alleged theft of approximately Kshs. 791 million from the NYS, a total of 26 suspects, including the Petitioner, were charged in Criminal Case No. 1905 of 2015 , with further investigations also being undertaken into suspected money laundering arising from the same transactions.
24. She states that the decision to prosecute the Petitioner was reached upon consideration of the evidence gathered during investigations and pursuant to the constitutional powers conferred upon the 3 rd Respondent under Article 157 of the Constitution. She denies that the decision was influenced by the findings contained in the PAC’s report or by any other extraneous considerations. Rather, she maintains that the 3 rd Respondent independently applied both the evidentiary and public interest tests before approving the charges.
25. With regard to the Petitioner's account of his duties as the principal supply chain management officer, she asserts that the Petition essentially raises matters of defence which can only be determined during the criminal trial. Equally, she stresses that whether the Petitioner acted lawfully in the discharge of his duties, whether he bore criminal responsibility and the extent of his participation in the impugned transactions are issues to be established through evidence tendered before the trial court. She further avers that under Section 20 of the Penal Code, criminal liability extends to all persons who participate in the commission of an offence and therefore the Petitioner's assertion that he played only a nominal role cannot absolve him of criminal responsibility.
26. She further states that the Petitioner admitted examining 25 payment vouchers, which formed part of the transactions giving rise to the criminal charges. Moreover, she avers that institutional changes within the Ministry or the alleged reassignment of procurement functions did not exempt the Petitioner from complying with the law, particularly as there was no evidence that he had raised objections to those changes with the relevant authorities at the time.
27. In response to the Petitioner's allegations concerning procurement procedures at the NYS, she emphasizes that the criminal charges relate primarily to offences of theft, fraud and conspiracy arising from payments made to suppliers, rather than the procurement process itself and as such contends that the Petitioner cannot rely on the alleged irregularities in the procurement process to establish his innocence within the constitutional proceedings.
28. She further maintains that the 3 rd Respondent is an independent constitutional body that is not bound by recommendations or decisions made by investigative agencies or parliamentary committees. She states that, in deciding whether to prosecute, the 3 rd Respondent considered the sufficiency, admissibility and availability of the evidence together with the public interest requirements under Article 157(11) of the Constitution. She notes that the Petitioner failed to demonstrate how those constitutional standards were violated or how the 3 rd Respondent had been improperly influenced by the PAC report.
29. Finally, it is deponed that the 3 rd Respondent assembled substantial evidence against the Petitioner, including more than 55 witnesses and numerous documentary exhibits, all of which would be presented during the criminal trial. She underscores that questions regarding the sufficiency, admissibility and credibility of that evidence fall within the exclusive jurisdiction of the trial court and cannot properly be determined through a constitutional petition. She as such denies that the prosecution was actuated by malice, bad faith, harassment, abuse of process or any ulterior motive. She points out that the Petitioner would in any case enjoy all the safeguards of a fair trial under Article 50 of the Constitution. Consequently, she urges the Court to dismiss the Petition.
Parties’ Submissions
Petitioner’s
30. The Petitioner through LAK advocates filed submissions dated 23 rd October 2017 and supplementary submissions dated 23 rd October 2025. In the first set of submissions, Counsel outlined the issues for determination as: whether the 1 st Respondent’s decision against the Petitioner was procedurally fair, whether the 1 st Respondent’s finding that the Petitioner was culpable of abuse of office and contravening the Public Procurement and Disposal Act was reasonable and whether there existed reasonable or probable cause for the 3 rd Respondent to investigate or prosecute the Petitioner on the basis of the recommendations made by the 1 st and 2 nd Respondents .
31. On the first issue, Counsel submitted that although the Petitioner had been invited by the PAC to appear before it and prepare a comprehensive report concerning the special audit on the NYS, the Committee ultimately disregarded his submissions when making its findings and recommendations and proceeded to hold him culpable for various procurement irregularities. Relying on Article 47 of the Constitution and Sections 4 and 7(2)(v) of the Fair Administrative Action Act, Counsel contended that procedural fairness required that the Petitioner be furnished with the evidence against him, afforded an opportunity to challenge that evidence through cross-examination where appropriate, present rebuttal evidence and address the decision-maker before adverse findings were made. Counsel maintained that the Petitioner was never heard as pertains several critical allegations, including the alleged approval of fraudulent procurements amounting to hundreds of millions of shillings and the alleged double payment to Consulting House Ltd. Considering this, Counsel underscored that PAC’s findings were reached in violation of the rules of natural justice.
32. In support of this argument, Counsel relied on Onyango Oloo v Attorney General [1986–1989] EA 456 , where the Court held that the right to be heard is a fundamental principle of natural justice and that a decision reached in breach of that principle is null and void regardless of whether the same outcome would have been reached. Comparable reliance was placed on Republic v Chief Justice of Kenya ex parte Moijo Mataiya Ole Keiwua [2010] eKLR .
33. Counsel, on the second issue argued that the impugned decision was unreasonable within the meaning of Article 47 of the Constitution, the Fair Administrative Action Act and Article 24 of the Constitution. Counsel submitted that the Committee failed to consider material evidence that demonstrated the impugned procurements were undertaken at the headquarters of the Ministry of Devolution and not by the Petitioner personally. Counsel referred to a circular issued by the Ministry of Public Works directing all government ministries and departments to procure building materials from a prescribed list of suppliers, which, according to Counsel, demonstrated that procurement decisions were centrally coordinated. Counsel therefore contended that the Committee ignored relevant evidence in attributing the procurement irregularities solely to him.
34. Reliance was placed on Associated Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 , where it was held that:
“The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which ought not to have been taken into account or conversely have refused to take into account or neglected o take into account.”
35. Counsel further argued that documentary evidence demonstrated that the Petitioner had previously been issued with a show-cause letter by the then Cabinet Secretary, in February 2015 for allegedly delaying supplies because he insisted on compliance with lawful procurement procedures. Counsel referred to a memorandum dated 28 th January 2015 in which he requested verification of requisitions before procurement could proceed. Counsel contended that this demonstrated the Petitioner’s commitment to lawful procurement rather than participation in the alleged fraud. Tying to this, Counsel submitted that there was no involvement whatsoever by the Petitioner in the procurement of consultancy services awarded to Consulting House Ltd. Counsel noted that the consultancy originated from a proposal by Mutahi Ngunyi and approved by the Ministerial Tender Committee without his participation, that the same was negotiated by that Committee, and formally communicated by the Director General of the NYS. In light of this, Counsel stressed that the finding that he approved the alleged fraudulent double payment of Kshs. 12.5 million was unsupported by any evidence.
36. Turning to the third issue, Counsel submitted that, since the recommendations made by the 1 st and 2 nd Respondents were procedurally unfair and unreasonable, they could not constitute a lawful basis for criminal investigations or prosecution by the 3 rd Respondent. Counsel contended that there existed no reasonable or probable cause to investigate or prosecute the Petitioner. To buttress this point reliance was placed on Stephen Gachau Githaiga v Attorney General [2015] eKLR , where the Court observed that:
“A reasonable and probable cause is an honest belief founded upon reasonable grounds that would lead a prudent and cautious person to conclude that the accused was probably guilty of the offence alleged.”
37. On this premise, Counsel underscored that any criminal investigation or prosecution founded upon the impugned recommendations would unjustifiably limit his constitutional rights under Articles 24 and 47 of the Constitution. Reliance was placed on Kuria & 3 Others v Attorney General [2002] 2 KLR 69 , where the High Court held that courts have both the power and duty to prohibit criminal prosecutions that are instituted for improper purposes or which amount to oppression, vexation or an abuse of the court process. Equal reliance was placed on In Re the Matter of the Interim Independent Electoral Commission [2011] eKLR . To that end, Counsel urged the Court to prohibit the 3 rd Respondent from prosecuting the Petitioner on the basis of the impugned recommendations.
38. In the supplementary submissions, Counsel highlighted the key issues as: whether the Petitioner is entitled to general damages for violation of his constitutional rights and causing him bad repute and whether the Petitioner is entitled to special damages for loss of employment .
39. Counsel on the first issue submitted that the Petitioner having establishe
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