'1. The Petitioner filed the Notice of Motion Application dated 28th November 2024 seeking the following reliefs:
(a) Spent;
(b) Spent;
(c) Spent;
(d) Pending the hearing and determination of this Petition the court be pleaded to issue conservatory orders retraining the 1st Respondent from signing contract arising out of tender number KPA/033/2024-25/PSM for disposal of used tyres;
(e) Pending the hearing and determination of this Petition the court be pleaded to issue conservatory orders staying the procurement process or signing of contract arising out of tender number KPA/033/2024-25/PSM for disposal of used tyres.
2. The Application is supported by the grounds on the face of it and the Affidavit of Japheth Kithi, sworn on 28th November 2024 wherein it is stated as follows:-
(i) The Respondents threatened and breached Article 227 of the Constitution and procurement laws in that the 1st Respondent awarded the tender to persons who did not qualify;
(ii) Without the intervention of this court, the contract is set to be signed now that the award by the unqualified bidders was accepted;
(iii) The 1st Respondent failed to exercise fairness, equity, competitiveness and cost effectiveness in the award of the tender; and
(iv) The procurement was also marred by corruption and bribery.
3. The 1st Respondent filed Grounds of Opposition dated 2nd December 2024, premised on grounds materially as follows:
(i) The Petition and Application circumvent Section 167 and Part XV of the Public Procurement and Asset Disposal Act on the procedure for seeking redress in allegations of breach of the Procurement Act and Rules;
(ii) The Court is divested of first instance jurisdiction by Section 175 of the Public Procurement and Asset Disposal Act;
(iii) The Petition contravenes Section 65 of the Public Procurement and Asset Disposal Act that prohibits influencing the procurement process and is in bad faith, as documents were obtained illegally.
4. The court has considered the Application, the supporting affidavit and annexures, as well as the Grounds of Opposition and written submissions by the parties. The issue for determination is whether the Applicant has made a case for the granting of a conservatory orders, to wit, stay of the procurement of tender number KPA/033/2024-25/PSM for disposal of used tyres pending the hearing and determination of the Petition.
5. Courts have settled the principles on the issuance of conservatory orders in various cases. See Wilson Nkunja Kaberia v Kenya Judges and Magistrates Vetting Board (2018) eKLR, Board of Management of Uhuru Secondary School v County Director of Education & 2 Others (2015)e KLR, LSK v Officer of Attorney General & Another, Judicial Service Commission (Interested Party) (2020)e KLR, CREAW & Another v Speaker of the National Assembly (2017)e KLR and Peter Munya v Dickson Githinji & 2 Others (2014)e KLR.
6. In the case of Judicial Service Commission vs. Speaker of the National Assembly & Another [2013] eKLR , the Court expressed itself as follows:
“Conservatory orders, in my view, are not ordinary civil law remedies but are remedies provided for under the Constitution, the Supreme law of the land. They are not remedies between one individual as against another but are meant to keep the subject matter of the dispute in situ. Therefore, such remedies are remedies in rem as opposed to remedies in personam. In other words, they are remedies in respect of a particular state of affairs as opposed to injunctive orders which may only attach to a particular person.”
7. In the case of Board of Management of Uhuru Secondary School v City County Director of Education & 2 others [2015] eKLR , where it was stated that:-
“25. Foremost, the applicant ought to demonstrate a prima facie case with a likelihood of success and that in the absence of the conservatory orders, he is likely to suffer prejudice….
26. It is in my view not enough to merely establish a prima facie case and show that it is potentially arguable. Potential arguability is not enough to justify a conservatory order but rather there must also be evident a likelihood of success. The prima facie case ought to be beyond a speculative basis….
28. Once the applicant has established to the court’s satisfaction a prima facie case with a likelihood of success the court is then to decide whether a grant or a denial of the conservatory relief will enhance the Constitutional values and objects of the specific right or freedom in the Bill of rights….
29. Thirdly, flowing from the first two principles, is whether if an interim Conservatory order is not granted, the petition or its substratum will be rendered nugatory. It is indeed the business of the court to ensure and secure so far as possible that any transitional motions before the court do not render nugatory the ultimate end of justice….”
8. The element of public interest must also be considered. In Gatirau Peter Munya v Dickson Mwenda Kithinji & Others SCOK Application No. 5 of 2014 [2014]eKLR, the Supreme Court observed that:
“[86] Conservatory orders bear a decided public law commutation for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the courts, in the public interest. Conservatory orders therefore, are not unlike interlocutory injunctions linked to such private party issues as the prospects of irreparable harm occurring during the pendency of case or high probability of success in the applicant’s case for orders of stay. Conservatory orders, consequently, should be granted on the inherent merit of a case bearing in mind the public interest, the constitutional values and the proportionate magnitudes and priority levels attributable to the relevant cases.”
9. What emerges from the above decisions is that an Applicant for conservatory orders must demonstrate that:
(a) The Applicant ought to demonstrate an arguable prima facie case with a likelihood of success and that in the absence of the conservatory orders, he/she is likely to suffer prejudice.
(b) The Court should decide whether a grant or a denial of the conservatory relief will enhance the constitutional values and objects of a specific right or freedom in the Bill of Rights.
(c) Whether if an interim conservatory order is not granted, the Petition or its substratum will be rendered nugatory.
(d) Lastly, that the court should consider the public interest and relevant material facts in exercising its discretion.
10. In applying the foregoing principles, serious questions have been raised as to whether the procuring entity followed the procurement law, and whether the tender evaluation process followed due process. The Court in the case of Rights Education and Awareness (CREW) supra, stated that a party seeking a conservatory order is only required to demonstrate that he has a Prima facie case with a likelihood of success and that unless the conservatory order is granted, there is a real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution.
11. In my view, the issues raised in this petition are serious. I am satisfied that the petitioner has demonstrated that there is a prima facie case.
12. What of the preservation of the substratum of the matter? The Applicant’s case is that it will be necessary to conserve the substratum of the Petition and that a preservatory order is issued, the Petition will be rendered nugatory. In my view, this condition has been met. There is public interest in the procurement, and it is expected that the same must be done in a transparent and accountable manner.
13. In the circumstances, I allow the Notice of Motion dated 28th November 2024 in terms of prayers (d) and (e) thereof.
14. In the interest of justice, the manner will be fast-tracked so that neither of the parties suffers prejudice.
15. The upshot is that I make the following orders:-
(a) Pending the hearing and determination of this Petition, a conservatory order is hereby issued restraining the 1st Respondent from signing a contract arising out of tender number KPA/033/2024-25/PSM for the disposal of used tyres;
(b) Pending the hearing and determination of this Petition, a conservatory order is hereby issued staying the procurement process or signing of contract arising out of tender number KPA/033/2024-25/PSM for disposal of used tyres; and
(c) The costs shall be in the cause.
Dated and signed in MOMBASA on this 7th day of March 2025. Delivered virtually through Microsoft Teams.
'
(a) Spent;
(b) Spent;
(c) Spent;
(d) Pending the hearing and determination of this Petition the court be pleaded to issue conservatory orders retraining the 1st Respondent from signing contract arising out of tender number KPA/033/2024-25/PSM for disposal of used tyres;
(e) Pending the hearing and determination of this Petition the court be pleaded to issue conservatory orders staying the procurement process or signing of contract arising out of tender number KPA/033/2024-25/PSM for disposal of used tyres.
2. The Application is supported by the grounds on the face of it and the Affidavit of Japheth Kithi, sworn on 28th November 2024 wherein it is stated as follows:-
(i) The Respondents threatened and breached Article 227 of the Constitution and procurement laws in that the 1st Respondent awarded the tender to persons who did not qualify;
(ii) Without the intervention of this court, the contract is set to be signed now that the award by the unqualified bidders was accepted;
(iii) The 1st Respondent failed to exercise fairness, equity, competitiveness and cost effectiveness in the award of the tender; and
(iv) The procurement was also marred by corruption and bribery.
3. The 1st Respondent filed Grounds of Opposition dated 2nd December 2024, premised on grounds materially as follows:
(i) The Petition and Application circumvent Section 167 and Part XV of the Public Procurement and Asset Disposal Act on the procedure for seeking redress in allegations of breach of the Procurement Act and Rules;
(ii) The Court is divested of first instance jurisdiction by Section 175 of the Public Procurement and Asset Disposal Act;
(iii) The Petition contravenes Section 65 of the Public Procurement and Asset Disposal Act that prohibits influencing the procurement process and is in bad faith, as documents were obtained illegally.
4. The court has considered the Application, the supporting affidavit and annexures, as well as the Grounds of Opposition and written submissions by the parties. The issue for determination is whether the Applicant has made a case for the granting of a conservatory orders, to wit, stay of the procurement of tender number KPA/033/2024-25/PSM for disposal of used tyres pending the hearing and determination of the Petition.
5. Courts have settled the principles on the issuance of conservatory orders in various cases. See Wilson Nkunja Kaberia v Kenya Judges and Magistrates Vetting Board (2018) eKLR, Board of Management of Uhuru Secondary School v County Director of Education & 2 Others (2015)e KLR, LSK v Officer of Attorney General & Another, Judicial Service Commission (Interested Party) (2020)e KLR, CREAW & Another v Speaker of the National Assembly (2017)e KLR and Peter Munya v Dickson Githinji & 2 Others (2014)e KLR.
6. In the case of Judicial Service Commission vs. Speaker of the National Assembly & Another [2013] eKLR , the Court expressed itself as follows:
“Conservatory orders, in my view, are not ordinary civil law remedies but are remedies provided for under the Constitution, the Supreme law of the land. They are not remedies between one individual as against another but are meant to keep the subject matter of the dispute in situ. Therefore, such remedies are remedies in rem as opposed to remedies in personam. In other words, they are remedies in respect of a particular state of affairs as opposed to injunctive orders which may only attach to a particular person.”
7. In the case of Board of Management of Uhuru Secondary School v City County Director of Education & 2 others [2015] eKLR , where it was stated that:-
“25. Foremost, the applicant ought to demonstrate a prima facie case with a likelihood of success and that in the absence of the conservatory orders, he is likely to suffer prejudice….
26. It is in my view not enough to merely establish a prima facie case and show that it is potentially arguable. Potential arguability is not enough to justify a conservatory order but rather there must also be evident a likelihood of success. The prima facie case ought to be beyond a speculative basis….
28. Once the applicant has established to the court’s satisfaction a prima facie case with a likelihood of success the court is then to decide whether a grant or a denial of the conservatory relief will enhance the Constitutional values and objects of the specific right or freedom in the Bill of rights….
29. Thirdly, flowing from the first two principles, is whether if an interim Conservatory order is not granted, the petition or its substratum will be rendered nugatory. It is indeed the business of the court to ensure and secure so far as possible that any transitional motions before the court do not render nugatory the ultimate end of justice….”
8. The element of public interest must also be considered. In Gatirau Peter Munya v Dickson Mwenda Kithinji & Others SCOK Application No. 5 of 2014 [2014]eKLR, the Supreme Court observed that:
“[86] Conservatory orders bear a decided public law commutation for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the courts, in the public interest. Conservatory orders therefore, are not unlike interlocutory injunctions linked to such private party issues as the prospects of irreparable harm occurring during the pendency of case or high probability of success in the applicant’s case for orders of stay. Conservatory orders, consequently, should be granted on the inherent merit of a case bearing in mind the public interest, the constitutional values and the proportionate magnitudes and priority levels attributable to the relevant cases.”
9. What emerges from the above decisions is that an Applicant for conservatory orders must demonstrate that:
(a) The Applicant ought to demonstrate an arguable prima facie case with a likelihood of success and that in the absence of the conservatory orders, he/she is likely to suffer prejudice.
(b) The Court should decide whether a grant or a denial of the conservatory relief will enhance the constitutional values and objects of a specific right or freedom in the Bill of Rights.
(c) Whether if an interim conservatory order is not granted, the Petition or its substratum will be rendered nugatory.
(d) Lastly, that the court should consider the public interest and relevant material facts in exercising its discretion.
10. In applying the foregoing principles, serious questions have been raised as to whether the procuring entity followed the procurement law, and whether the tender evaluation process followed due process. The Court in the case of Rights Education and Awareness (CREW) supra, stated that a party seeking a conservatory order is only required to demonstrate that he has a Prima facie case with a likelihood of success and that unless the conservatory order is granted, there is a real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution.
11. In my view, the issues raised in this petition are serious. I am satisfied that the petitioner has demonstrated that there is a prima facie case.
12. What of the preservation of the substratum of the matter? The Applicant’s case is that it will be necessary to conserve the substratum of the Petition and that a preservatory order is issued, the Petition will be rendered nugatory. In my view, this condition has been met. There is public interest in the procurement, and it is expected that the same must be done in a transparent and accountable manner.
13. In the circumstances, I allow the Notice of Motion dated 28th November 2024 in terms of prayers (d) and (e) thereof.
14. In the interest of justice, the manner will be fast-tracked so that neither of the parties suffers prejudice.
15. The upshot is that I make the following orders:-
(a) Pending the hearing and determination of this Petition, a conservatory order is hereby issued restraining the 1st Respondent from signing a contract arising out of tender number KPA/033/2024-25/PSM for the disposal of used tyres;
(b) Pending the hearing and determination of this Petition, a conservatory order is hereby issued staying the procurement process or signing of contract arising out of tender number KPA/033/2024-25/PSM for disposal of used tyres; and
(c) The costs shall be in the cause.
Dated and signed in MOMBASA on this 7th day of March 2025. Delivered virtually through Microsoft Teams.
'