Introduction
1. The petition dated 30 th June 2025 is supported by the petitioner’s affidavit in support of even date and Supplementary Affidavit dated 26 th September 2025.
2. The petition impugns lack of lawfulness, transparency and accountability in establishing the Constituency Sports Academies by the 1 st respondent in various counties across the country.
3. The petition thus seeks the following reliefs: -
a) A declaration be and is hereby issued that the piloting of the impugned constituency sports academies did not meet the constitutional threshold requirements under Article 10 of the Constitution and as such they are irregular and an illegality.
b) A declaration be and is hereby issued that the projects initiated by the respondents in the 23 counties in Kenya are unconstitutional, null and void for failing to comply with Articles 6(3), 10, 19(2), 27, 35, 47, 73, 201, 227 and 232 of the Constitution.
c) An order of judicial review in the form of mandamus do issue from this court compelling the respondents to conduct a fresh procurement exercise to redistribute the piloting of the 37 constituency sports academies in a lawful and inclusive process in compliance with Articles 6(3), 10, 19(2), 27, 35, 47, 73, 201, 227 and 232 of the Constitution.
d) An order of prohibition restraining the respondents either by themselves, agents or anyone else acting at their behest, from proceeding with the implementation or paying any tenderer and funding the listed impugned projects until they comply fully with the principles of transparency, public participation and fairness as mandated by the Constitution.
e) An order of judicial review in the form of certiorari do issue from this Court to quashing the decision by the respondents in awarding the impugned constituency sports academies projects as contained in the re-advertisements of tender notices due on 20 th September 2024, 2 nd December 2024 and 11 th April 2025 respectively.
f) An order of prohibition be and is hereby issued restraining the respondents from proceeding with the implementation or funding of the said projects pending compliance with constitutional requirements.
g) An order of judicial review in the form of mandamus do issue from this court compelling the respondents to disclose the criteria used and the minutes of the Kenya Academy of Sports Council meetings that decided to unfairly, illegally and unconstitutionally allocate the impugned constituency sports academies in the 23 counties in compliance with Article 35 of the Constitution and Sections 4 and 5 of the Access to Information Act 2016.
h) Costs of the petition.
i) Any other relief that the court deems fit to grant.
4. In opposition to the petition, the respondents filed a Replying Affidavit dated 20 th August 2025.
The Petitioner’s Case
5. The petitioner, a male adult of sound mind and a Kenyan citizen filed the instant petition on the basis of public interest under Article 258(2)(c) of the Constitution of Kenya asserting that his interest is to protect and uphold the rule of law and promote the tenets of good governance and constitutionalism in the Republic of Kenya.
6. The 1 st respondent is a State Corporation established under Section 33 of the Sports Act No. 25 of 2013, with a mandate to; establish and manage sports training academies; promote research and development of talent in sports, in collaboration with institutions of higher learning, national sports organizations and other stakeholders; collect, collate, store and disseminate tangible and intangible historical ordinate sports courses for technical and sports administration personnel among other functions. The 2 nd respondent is the Cabinet Secretary for the time being responsible for matters relating to sports.
7. On or about 20 th September 2024, the 1 st respondent invited interested bidders through a re-advertised tender notice as published through the Government Advertising Agency, PIPP and other media platforms calling for submission of bids whose deadline was 20 th September 2024. The petitioner states that the re-advertised tender notice dated 20 th September 2024 called for bids for the construction of thirty (30) pilot constituency sports academies across the country and distributed the constituency sports academies as follows:- 3 of each sports academies in Machakos and Busia , two of each in Nandi , Murang’a, Nairobi, Kwale and Kitui and one of each in Bomet, Siaya, Nyandarua, Homabay, Baringo, Uasin Gishu, Kakamega, Vihiga, Bungoma, Kiambu, Elgeyo Marakwet, Marsabit, Turkana and Wajir totalling to thirty constituency sports academies.
8. The respondent then re-advertised the tender notice again, whose deadline for submission was 2 nd December 2024 whereby the proposed constituency sports academies were increased to thirty- seven .
9. The said tender notice increased the number of constituency sports academies in Elgeyo Marakwet county to four from one . The petitioner asserts that it is the only county that has four constituencies and the then Cabinet Secretary hails from that particular county and is a former Senator thereof.
10. The petitioner further asserts that the following constituencies were allocated more sports academies as per the re-advertised tender notice; Bungoma 1 extra , Kiambu 1 extra, Elgeyo Marakwet 3 extra , Isiolo 1 new and Mandera 1 new. He further affirms that the respondent issued a further re-advertisement of tender notices for bids for 11 constituency academies due on 11 th April 2025. He asserts that the former Cabinet Secretary for Youth Affairs, Creative Economy and Sports under which the Academy falls was Hon. Ababu Namwamba who hails from Western Kenya which comprises of four counties namely Busia (3), Bungoma (2), Kakamega (1) and Vihiga
(1) therefore the region was allocated 7 constituency sports academies which is 19% of the total available academies. Further during the term of office as CS for Sports of Hon. Kipchumba Murkomen, who is the immediate former Senator for Elgeyo Marakwet, the number of academies for Elgeyo Marakwet was increased from one to four, consisting of over 10% of all the then academies, through the 2 nd December 2024 re-advertisement notice. The said increment meant that all the constituencies in Elgeyo Marakwet benefited from the piloting exercise whilst other counties had no single academy in progress.
11. The petitioner argues that the distribution of the academies is skewed in favour of the regions where the management and council of the 1 st respondent originate from and where the occupant of the 2 nd respondent’s office originate from. He affirms that there is no constituency sports academy allocated either for Kisii and Nyamira counties which are known for producing national sports figures. Further Gusii region currently prides in Shabana FC which is playing in the Kenya Premier League.
12. He further argues that the respondent did not conduct any public participation before selecting the various counties as beneficiaries of the constituency sports academies. Further, the whole process of electing the proposed constituency sports academies was marred with lack of transparency, accountability and openness as demanded by Article 10, Chapter Six and Chapter 12 of the Constitution. Additionally, the bulk of the proposed constituency sports academies cover the entire Western Kenya counties, only one
tribe in Rift Valley, Eastern Kenya and Nyanza which is contrary to the fair and equitable distribution of resources required by Articles 10, 27 and 201 of the Constitution.
13. Furthermore, there was a conflict of interest that affected the procurement pursuant to Section 66 and 68 of the Public Procurement and Asset Disposal Act. He affirms that the impugned tendering process has been carried out in a manner that is illegal, unlawful and contrary to the laid down procurement processes in
particular contravening the Constitution and the Public Procurement and Disposal Act.
The Respondents’ Case
14. The respondents’ response was contained in the Replying Affidavit sworn affidavit by Mr. Peter Kenyatta, the Deputy Director Supply Chain Management at the Kenya Academy of Sports. He deposed that the Kenya Academy of Sports is a state corporation established under Section 34 of the Sports Act . Following its establishment, the 1 st respondent proceeded to execute its mandate which includes the identification and nurturing of sports talent, maintaining and establishing sports academies, building the capacity of sports technical personnel and conducting sports research, all with the goal of elevating sports performance in the country. In the execution of its mandate and in a bid to nurture talent and offer support to new and existing athletes, the 1 st respondent resolved to have sports academies in each of the 290 constituents to be known as constituency sports academies.
15. In 2023, in a bid to execute the vision of establishing constituency sports academies, the 1 st respondent resolved to commission a pilot project in twenty-six constituencies within different counties and commissioned a feasibility study of the same.
16. The Respondents affirm that the purpose of the study was to confirm land availability and suitability with regard to accessibility to support services and infrastructure, promote sports discipline in the area, possible opportunities and challenges, possible risks and proposed mitigation strategies. In undertaking the feasibility study, the teams commissioned engaged with various key stakeholders, including the county governors and other elected leaders, the Members of the County Executive Committee responsible for sports, land officers, surveyors, physical planners and the boards of management for the schools where the academies are proposed to be set up.
17. The Respondents state that the 1 st respondent first piloted the roll out in twenty-six sites as indicated in the feasibility study annexed. A major consideration in the establishment of the sports academies was the question of demand versus supply. According to the Respondents, the 1 st respondent’s decision to pilot the academies in specific constituencies was largely influenced by the existing data on the number of upcoming and existing athletes who would utilize the academies. Following the positive impact and reception of the piloted academies, the 1 st respondent has continued to roll out additional academies in other constituencies in a bid to meet the
18. target of establishing academies in all the 290 constituencies, in the next ten years.
19. The Respondents depone that the academies are established after extensive consultations with the key stakeholders in the target sites. Further, in the continued engagement with stakeholders, there has been feedback including proposals by some board of management to relocate some classrooms and school facilities in order to create more space for the academies. The engagement with key stakeholders in the targeted sites including the leadership, school management and land officers, provided the 1 st respondent with key data and information to inform the piloting process. The Respondents affirm that the roll out of the academies is gradual and in phases due to economic costs involved. Further that the target is to have an academy in each of the 290 constituencies. Nothing stops the establishment of more than one academy per constituency so long as the same complies with the rules of demand and supply.
20. The Respondents thus contend that the petition is premature as the roll out of the academies is still ongoing and each constituency will get an allocated academy. Further that the prayers sought in the petition cannot be granted especially prayer 4 which seeks to stop payment to the tenderer yet none of them has been joined in the petition to offer a response.
21. Further, the petitioner has not adduced evidence to show that he has complied with the provisions of the Access to Information Act
prior to coming to court and thus prayer 7 is premature and in violation of the principle of constitutional avoidance. Additionally, prayer 5 violates the principle of exhaustion because if the petitioner has an issue with the procurement process, there are set out mechanisms to address the same, which he has not invoked.
22. In rejoinder, the petitioner swore a Supplementary Affidavit dated 26 th September 2025. The Petitioner contended that whilst the 1 st respondent seeks to justify the establishment of constituency level sports academies based on a feasibility study and a strategic plan, they fail to address the fundamental legal and constitutional requirements set out in the Constitution and the Sports Act. Further, the respondent’s claim of public participation lacks the necessary evidence and transparency, cementing the allegations raised in the petition about the legitimacy of the process. Further, whilst the 1 st respondent references its statutory mandate under Section 33 of the Sports Act and the Osotsi Bill, the said legal frameworks do not give the 1 st respondent carte blanche to establish sports academies without complying with other applicable legal requirements, including those related to public participation, land acquisition, transparency and procurement processes.
23. He argues that the annexed feasibility study which was conducted in October 2023 assessed the viability of establishing constituency sports academies in twenty-six sites located in twenty-six different constituencies however the petition is challenging the establishment of 37 constituency sports academies in twenty-three counties. Therefore, the said study cannot be relied upon in establishment of
the additional 11 constituency academies. The petitioner argues that the feasibility study raises a few issues such as the study was conducted only in 25 constituencies yet it refers to 26 constituencies. Further, in Nandi County the feasibility study was conducted at Nandi Hills ward and the site was identified as Nandi Tea Estate Sports grounds, however on the advert, the sites are Koitalel arap Samoei Academy within Nandi Hills Constituency and Kesengei Primary School in Aldai Constituency. In Machakos County, feasibility study was done at Kiisiki Primary School, Sinai Primary School and Kinyui Stadium however on implementation Sinai Primary School has been replaced by a site in Mwala Constituency known as Mwala Sports Grond which was not in the feasibility study. In the feasibility study, Garissa County had been allocated an academy at Lagdera’s Modogashe Secondary School however it is not among the academies being constructed currently. The feasibility study does not have details of project costs, technical and engineering designs but includes allowances. At page 12 of the feasibility study, the study refers to Kenya Secondary School Sports Association as part of its consideration, however the allocation of the academies does not reflect the actual demand, talent as exhibited at the KSSSA national finals over the years. There are 12 new academies where a feasibility study was not conducted and one in Garissa County was removed from the list. In the tender advert marked JNN3 the 1 st respondent has a new site that was not in the feasibility study. The implementation of the academies is therefore without any feasibility study in the following sites; Kenya Academy of Sports at Kasarani Constituency; Kibigos Primary School in Elgeyo Marakwet; Lunyofu Sports Grounds in Budalangi Constituency;
Nalondo Boys High School in Kabuchai Constituency; Kombani Football Academy at Matuga Constituency in Kwale; Kimuchu Primary School in Thika Town; Garbatula Boys High School in Isiolo South; Nzombe Sports Ground in Kitui East Constituency; St. Patrick Iten, Kapchebau Grounds both in Elgeyo Marakwet County; Kotulo Primary School in Wajir County and Elwak Baraza Park Mandera County.
24. The petitioner asserts that the feasibility study fails to provide clear evidence that the process followed the requirements of the constitution and Article 10. Further the respondent’s documents mention land availability but do not demonstrate proper land documentation such as title deeds or proof of transfer. Further, the respondent fails to provide sufficient evidence of compliance with public procurement laws during the selection of sites and the establishment of the academies. There is no indication that the procurement process for land, construction or any associated services followed the legal requirements for competitive bidding. Additionally, the feasibility study fails to detail the exact criteria used for site selection since the study was limited to only 25 constituencies. There is no explanation as to how the 1 st respondent arrived at selecting the 25 sites for feasibility study. There is no evidence or justification as to why counties such as Elgeyo Marakwet were given four academies despite the fact that no feasibility study was conducted in the county and neither is there an explanation why Garissa was left out despite feasibility studies being conducted at Mogogashe Primary School nor is there any justification for
changes of sites for example from Sinai Primary in Yatta to Mwala Sports Grounds in Mwala Constituency.
25. The Petitioner further argues that the feasibility study mentions site specific consultations, but there is a lack of clarity about the formal procedures followed, which raises questions about whether the public was adequately informed about the selection criteria and whether all relevant stakeholders including local communities, education officials and youth organizations were involved in a meaningful manner. The petitioner asserts that although the respondent claims that consultations took place with local authorities and school administrators, that does not constitute genuine public participation, as the consultation appears to have been limited to a select group of officials and community leaders. However, that is not supported by any evidence.
26. The petitioner affirms that there is no clear documentation to show that public notices were issued, community meetings were held or that feedback from the general public was gathered or considered in the selection of the said sites. The lack of evidence of broad public engagement is a significant concern that undermines the legitimacy of the respondent’s actions. He emphasizes the need for genuine public participation in decisions that affect the local community, especially in the establishment of sports academies that will directly impact students, parents and local residents. The respondent’s failure to provide evidence of broad based public engagement undermines the process and shows that the public was not adequately consulted. Although the respondent stated that public
participation was meaningfully conducted through consultations with stakeholders such as county governors, members of parliament, MCAs, land officers and school management, it failed to provide any specific evidence or records that substantiate those claims. No meeting minutes, reports, or documentation have been presented to demonstrate that the said consultations were genuine, inclusive and in compliance with the requirements of the Constitution under Article 10. He argues that the Constitution of Kenya mandates that public participation be both transparent and inclusive in all public decision-making processes. Thus, in the absence of tangible evidence and documentation, it is clear that the respondents did not discharge their constitutional duty to ensure meaningful public participation and therefore in violation of Article 10 of the Constitution.
27. On the respondent’s contention that the petition is premature because the process is ongoing, the petitioner deposes that legal compliance and procedural fairness are foundational to the project’s legitimacy. The failure to adhere to the required legal and constitutional standards at the current stage will irreparably undermine the entire project and cannot be remedied at a later stage.
28. The petitioner argues that annexture DO3 which is a copy of the statistics showing distribution of athletes does not support the decision of the respondent in piloting the 37 sports academies in various constituencies as Elgeyo Marakwet has only a total of 56 but has been allocated 4 sports academies which means that every
constituency in the county has an academy, whereas counties such as Meru which has 96, Kajiado with 81, Kericho with 56, Kilifi with 148, Kisumu with 141, Mombasa with 229, Nakuru with 56 and Trans Nzoia with 171 have no sports academies being piloted currently. There is no justification for the respondents’ decision besides it being discriminative, unfair and lacks transparency. Nairobi City Council has the highest number at 253 but has been allocated only two academies whilst Elgeyo Marakwet with 56 has 4, Busia with 36 has 3 sports academies, Machakos with 44 has 3 academies, Kitui with 30 has been allocated 2. Further, the respondents have failed to provide a satisfactory explanation for the exclusion of counties such as Kisii, Nyamira, Nakuru, Kericho, Mombasa and Tans Nzoia which have significant sports talent and growth potential. The failure to prioritize the said counties goes against the constitutional promise of equitable development and inclusive growth, as guaranteed under Article 27 and 20 of the Constitution.
29. The petitioner argues that while the respondents justify the allocation based on demand and existing infrastructure, they fail to acknowledge that certain counties, particularly those associated with political figures and personal interests have been unduly favoured. He maintains that the allocation process lacks transparency and the failure to justify the unequal distribution of resources between counties, particularly when comparing counties with substantial sports talent reveals a systemic flaw in the selection process. The respondents have not provided any verifiable evidence of the criteria used to select counties, leaving the process opaque
and vulnerable to biases. The respondents’ claim that the allocation was based on demand and infrastructure is insufficient without providing clear, objective criteria.
30. The petition was disposed of by way of written submissions.
Petitioner’s Submissions
31. The petitioner identified four issues for determination as follows; whether the respondents carried out public participation ; whether the respondents unfairly, inequitably, with favouritism, irregularly,
discriminatingly, opaquely and without lawful justification allocated the pilot constituency sports academies ; whether the respondents failed to provide information on the decision to distribute the pilot academies and on the procurement process used in the contracts and whether the respondents breached the Public procurement and Disposal Act as read with the Constitution in allocating and piloting the constituency sports academies and awarding tenders .
32. On the first issue, the petitioner relied on the Supreme Court case of British American Tobacco Kenya PLC vs Cabinet Secretary for the Ministry of Health & 2 Others; Kenya Tobacco Control Alliance & Another (Interested Parties); Mastermind Tobacco Kenya Limited (Affected Party) [2019] KESC 15(KLR) which provided the framework for public participation as follows: -
From the foregoing analysis, we would like to underscore that public participation and consultation is a living constitutional principle that goes to the constitutional tenet of the sovereignty of the people. It is through public participation that the people continue to find their sovereign place in the governance they have delegated to both the National and County Governments. Consequently, while Courts have pronounced themselves on this issue, in line with this Court’s mandate under Section 3 of the Supreme Court Act, we would like to delimit the following framework for public participation.
Guiding Principles for public participation
i. As a constitutional principle under Article 10(2) of the Constitution, public participation applies to all aspects of governance.
ii. The public officer and or entity charged with the performance of a particular duty bears the onus of ensuring and facilitating public participation.
iii. The lack of a prescribed legal framework for public participation is no excuse for not conducting public participation; the onus is on the public entity to give effect to this constitutional principle using reasonable means.
iv. Public participation must be real and not illusory. It is not a cosmetic or a public relations act. It is not a mere formality to be undertaken as a matter of course just to ‘fulfill’ a
constitutional requirement. There is need for both quantitative and qualitative components in public participation.
v. Public participation is not an abstract notion; it must be purposive and meaningful.
vi. Public participation must be accompanied by reasonable notice and reasonable opportunity. Reasonableness will be determined on a case to case basis.
vii. Public participation is not necessarily a process consisting of oral hearings, written submissions can also be made. The fact that someone was not heard is not enough to annul the process.
viii. Allegation of lack of public participation does not automatically vitiate the process. The allegations must be considered within the peculiar circumstances of each case: the mode, degree, scope and extent of public participation is to be determined on a case-to-case basis.
ix. Components of meaningful public participation include the following:
a. clarity of the subject matter for the public to understand;
b. structures and processes (medium of engagement) of participation that are clear and simple;
c. opportunity for balanced influence from the public in general;
d. commitment to the process;
e. inclusive and effective representation;
f. integrity and transparency of the process;
g. capacity to engage on the part of the public, including that the public must be first sensitized on the subject matter.
33. The petitioner argued that the respondents did not conduct any public participation before selecting the various counties as beneficiaries of the constituency sports academies. Further, while the respondents justify the establishment of the constituency level sports academies on the Feasibility Study and Strategic Plan, they fail to address the fundamental legal and constitutional requirements set out in the Constitution and the Sports Act. Additionally, the respondents’ claim of public participation lacks the necessary evidence and transparency.
34. The petitioner reiterated what he had deponed in his affidavits and submitted that the respondents’ actions were in violation of Article 10 and the constitutional principles of transparency and accountability. Reliance was placed in the case of Mundia vs Kenya Copyright Board & 5 Others; Kenya Dental Association & 6 Others (Interested Parties) [2025] KEHC 11144 (KLR) where the court held:-
According to Mr. Nyakwara, the notice was issued on 18 th November 2022 and gave the window for submissions of comments up to 5pm on 22 nd November 2022.
Once the petitioner attacked the process on grounds that it did not meet the constitutional threshold for public participation, the burden fell on the 1 st respondent to satisfy the Court that the process complied with the constitutional requirements on public participation.
I have gone through the affidavits filed on behalf of the respondents, as well as their bundle of documents. From the evidence placed before this court, the question is whether there was reasonable, meaningful and effective public participation before the tariffs were gazetted. The petitioner argued that there was no public participation while the respondents maintained that there was meaningful and effective public participation.
Kenya is founded on national values and principles of governance one of which is public participation. The constitutional text in article 10(1) leaves no doubt that national values and principles of
governance must be adhered to in the conduct public affairs which must be done in an open and transparent manner. In that regard, the 1 st respondent was required to facilitate public participation that was reasonable, meaningful and effective both qualitatively and quantitatively.
To facilitate public participation the 1 st respondent was to have taken deliberate positive measures that would make it possible for the public
to receive the draft tariffs and thereafter, accord them an opportunity to contribute their views on the tariffs. That is, public participation must be reasonable and meaningful so that those interested are given an equal opportunity to know about the Bill or issue and have adequate say on it.
In conducting public participation, the 1 st respondent was not doing a favour to the public but fulfilling a constitutional command. The 1 st respondent was required to disseminate information to the public about the tariffs; invite them to give comments but at the same time allow them reasonable opportunity to receive, read and understand the tariffs so that they could participate and have a say on the tariffs.
Public participation must not be reduced to a ritual meant to merely fulfil a constitutional requirement. It must be real, meaningful and effective so that it can influence the process for which it is being undertaken. Accepting the respondents’ argument that the manner in which public participation was conducted met the threshold of meaningful and effective public participation, would reduce public participation to a farce and therefore a mockery of the Consti
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1. The petition dated 30 th June 2025 is supported by the petitioner’s affidavit in support of even date and Supplementary Affidavit dated 26 th September 2025.
2. The petition impugns lack of lawfulness, transparency and accountability in establishing the Constituency Sports Academies by the 1 st respondent in various counties across the country.
3. The petition thus seeks the following reliefs: -
a) A declaration be and is hereby issued that the piloting of the impugned constituency sports academies did not meet the constitutional threshold requirements under Article 10 of the Constitution and as such they are irregular and an illegality.
b) A declaration be and is hereby issued that the projects initiated by the respondents in the 23 counties in Kenya are unconstitutional, null and void for failing to comply with Articles 6(3), 10, 19(2), 27, 35, 47, 73, 201, 227 and 232 of the Constitution.
c) An order of judicial review in the form of mandamus do issue from this court compelling the respondents to conduct a fresh procurement exercise to redistribute the piloting of the 37 constituency sports academies in a lawful and inclusive process in compliance with Articles 6(3), 10, 19(2), 27, 35, 47, 73, 201, 227 and 232 of the Constitution.
d) An order of prohibition restraining the respondents either by themselves, agents or anyone else acting at their behest, from proceeding with the implementation or paying any tenderer and funding the listed impugned projects until they comply fully with the principles of transparency, public participation and fairness as mandated by the Constitution.
e) An order of judicial review in the form of certiorari do issue from this Court to quashing the decision by the respondents in awarding the impugned constituency sports academies projects as contained in the re-advertisements of tender notices due on 20 th September 2024, 2 nd December 2024 and 11 th April 2025 respectively.
f) An order of prohibition be and is hereby issued restraining the respondents from proceeding with the implementation or funding of the said projects pending compliance with constitutional requirements.
g) An order of judicial review in the form of mandamus do issue from this court compelling the respondents to disclose the criteria used and the minutes of the Kenya Academy of Sports Council meetings that decided to unfairly, illegally and unconstitutionally allocate the impugned constituency sports academies in the 23 counties in compliance with Article 35 of the Constitution and Sections 4 and 5 of the Access to Information Act 2016.
h) Costs of the petition.
i) Any other relief that the court deems fit to grant.
4. In opposition to the petition, the respondents filed a Replying Affidavit dated 20 th August 2025.
The Petitioner’s Case
5. The petitioner, a male adult of sound mind and a Kenyan citizen filed the instant petition on the basis of public interest under Article 258(2)(c) of the Constitution of Kenya asserting that his interest is to protect and uphold the rule of law and promote the tenets of good governance and constitutionalism in the Republic of Kenya.
6. The 1 st respondent is a State Corporation established under Section 33 of the Sports Act No. 25 of 2013, with a mandate to; establish and manage sports training academies; promote research and development of talent in sports, in collaboration with institutions of higher learning, national sports organizations and other stakeholders; collect, collate, store and disseminate tangible and intangible historical ordinate sports courses for technical and sports administration personnel among other functions. The 2 nd respondent is the Cabinet Secretary for the time being responsible for matters relating to sports.
7. On or about 20 th September 2024, the 1 st respondent invited interested bidders through a re-advertised tender notice as published through the Government Advertising Agency, PIPP and other media platforms calling for submission of bids whose deadline was 20 th September 2024. The petitioner states that the re-advertised tender notice dated 20 th September 2024 called for bids for the construction of thirty (30) pilot constituency sports academies across the country and distributed the constituency sports academies as follows:- 3 of each sports academies in Machakos and Busia , two of each in Nandi , Murang’a, Nairobi, Kwale and Kitui and one of each in Bomet, Siaya, Nyandarua, Homabay, Baringo, Uasin Gishu, Kakamega, Vihiga, Bungoma, Kiambu, Elgeyo Marakwet, Marsabit, Turkana and Wajir totalling to thirty constituency sports academies.
8. The respondent then re-advertised the tender notice again, whose deadline for submission was 2 nd December 2024 whereby the proposed constituency sports academies were increased to thirty- seven .
9. The said tender notice increased the number of constituency sports academies in Elgeyo Marakwet county to four from one . The petitioner asserts that it is the only county that has four constituencies and the then Cabinet Secretary hails from that particular county and is a former Senator thereof.
10. The petitioner further asserts that the following constituencies were allocated more sports academies as per the re-advertised tender notice; Bungoma 1 extra , Kiambu 1 extra, Elgeyo Marakwet 3 extra , Isiolo 1 new and Mandera 1 new. He further affirms that the respondent issued a further re-advertisement of tender notices for bids for 11 constituency academies due on 11 th April 2025. He asserts that the former Cabinet Secretary for Youth Affairs, Creative Economy and Sports under which the Academy falls was Hon. Ababu Namwamba who hails from Western Kenya which comprises of four counties namely Busia (3), Bungoma (2), Kakamega (1) and Vihiga
(1) therefore the region was allocated 7 constituency sports academies which is 19% of the total available academies. Further during the term of office as CS for Sports of Hon. Kipchumba Murkomen, who is the immediate former Senator for Elgeyo Marakwet, the number of academies for Elgeyo Marakwet was increased from one to four, consisting of over 10% of all the then academies, through the 2 nd December 2024 re-advertisement notice. The said increment meant that all the constituencies in Elgeyo Marakwet benefited from the piloting exercise whilst other counties had no single academy in progress.
11. The petitioner argues that the distribution of the academies is skewed in favour of the regions where the management and council of the 1 st respondent originate from and where the occupant of the 2 nd respondent’s office originate from. He affirms that there is no constituency sports academy allocated either for Kisii and Nyamira counties which are known for producing national sports figures. Further Gusii region currently prides in Shabana FC which is playing in the Kenya Premier League.
12. He further argues that the respondent did not conduct any public participation before selecting the various counties as beneficiaries of the constituency sports academies. Further, the whole process of electing the proposed constituency sports academies was marred with lack of transparency, accountability and openness as demanded by Article 10, Chapter Six and Chapter 12 of the Constitution. Additionally, the bulk of the proposed constituency sports academies cover the entire Western Kenya counties, only one
tribe in Rift Valley, Eastern Kenya and Nyanza which is contrary to the fair and equitable distribution of resources required by Articles 10, 27 and 201 of the Constitution.
13. Furthermore, there was a conflict of interest that affected the procurement pursuant to Section 66 and 68 of the Public Procurement and Asset Disposal Act. He affirms that the impugned tendering process has been carried out in a manner that is illegal, unlawful and contrary to the laid down procurement processes in
particular contravening the Constitution and the Public Procurement and Disposal Act.
The Respondents’ Case
14. The respondents’ response was contained in the Replying Affidavit sworn affidavit by Mr. Peter Kenyatta, the Deputy Director Supply Chain Management at the Kenya Academy of Sports. He deposed that the Kenya Academy of Sports is a state corporation established under Section 34 of the Sports Act . Following its establishment, the 1 st respondent proceeded to execute its mandate which includes the identification and nurturing of sports talent, maintaining and establishing sports academies, building the capacity of sports technical personnel and conducting sports research, all with the goal of elevating sports performance in the country. In the execution of its mandate and in a bid to nurture talent and offer support to new and existing athletes, the 1 st respondent resolved to have sports academies in each of the 290 constituents to be known as constituency sports academies.
15. In 2023, in a bid to execute the vision of establishing constituency sports academies, the 1 st respondent resolved to commission a pilot project in twenty-six constituencies within different counties and commissioned a feasibility study of the same.
16. The Respondents affirm that the purpose of the study was to confirm land availability and suitability with regard to accessibility to support services and infrastructure, promote sports discipline in the area, possible opportunities and challenges, possible risks and proposed mitigation strategies. In undertaking the feasibility study, the teams commissioned engaged with various key stakeholders, including the county governors and other elected leaders, the Members of the County Executive Committee responsible for sports, land officers, surveyors, physical planners and the boards of management for the schools where the academies are proposed to be set up.
17. The Respondents state that the 1 st respondent first piloted the roll out in twenty-six sites as indicated in the feasibility study annexed. A major consideration in the establishment of the sports academies was the question of demand versus supply. According to the Respondents, the 1 st respondent’s decision to pilot the academies in specific constituencies was largely influenced by the existing data on the number of upcoming and existing athletes who would utilize the academies. Following the positive impact and reception of the piloted academies, the 1 st respondent has continued to roll out additional academies in other constituencies in a bid to meet the
18. target of establishing academies in all the 290 constituencies, in the next ten years.
19. The Respondents depone that the academies are established after extensive consultations with the key stakeholders in the target sites. Further, in the continued engagement with stakeholders, there has been feedback including proposals by some board of management to relocate some classrooms and school facilities in order to create more space for the academies. The engagement with key stakeholders in the targeted sites including the leadership, school management and land officers, provided the 1 st respondent with key data and information to inform the piloting process. The Respondents affirm that the roll out of the academies is gradual and in phases due to economic costs involved. Further that the target is to have an academy in each of the 290 constituencies. Nothing stops the establishment of more than one academy per constituency so long as the same complies with the rules of demand and supply.
20. The Respondents thus contend that the petition is premature as the roll out of the academies is still ongoing and each constituency will get an allocated academy. Further that the prayers sought in the petition cannot be granted especially prayer 4 which seeks to stop payment to the tenderer yet none of them has been joined in the petition to offer a response.
21. Further, the petitioner has not adduced evidence to show that he has complied with the provisions of the Access to Information Act
prior to coming to court and thus prayer 7 is premature and in violation of the principle of constitutional avoidance. Additionally, prayer 5 violates the principle of exhaustion because if the petitioner has an issue with the procurement process, there are set out mechanisms to address the same, which he has not invoked.
22. In rejoinder, the petitioner swore a Supplementary Affidavit dated 26 th September 2025. The Petitioner contended that whilst the 1 st respondent seeks to justify the establishment of constituency level sports academies based on a feasibility study and a strategic plan, they fail to address the fundamental legal and constitutional requirements set out in the Constitution and the Sports Act. Further, the respondent’s claim of public participation lacks the necessary evidence and transparency, cementing the allegations raised in the petition about the legitimacy of the process. Further, whilst the 1 st respondent references its statutory mandate under Section 33 of the Sports Act and the Osotsi Bill, the said legal frameworks do not give the 1 st respondent carte blanche to establish sports academies without complying with other applicable legal requirements, including those related to public participation, land acquisition, transparency and procurement processes.
23. He argues that the annexed feasibility study which was conducted in October 2023 assessed the viability of establishing constituency sports academies in twenty-six sites located in twenty-six different constituencies however the petition is challenging the establishment of 37 constituency sports academies in twenty-three counties. Therefore, the said study cannot be relied upon in establishment of
the additional 11 constituency academies. The petitioner argues that the feasibility study raises a few issues such as the study was conducted only in 25 constituencies yet it refers to 26 constituencies. Further, in Nandi County the feasibility study was conducted at Nandi Hills ward and the site was identified as Nandi Tea Estate Sports grounds, however on the advert, the sites are Koitalel arap Samoei Academy within Nandi Hills Constituency and Kesengei Primary School in Aldai Constituency. In Machakos County, feasibility study was done at Kiisiki Primary School, Sinai Primary School and Kinyui Stadium however on implementation Sinai Primary School has been replaced by a site in Mwala Constituency known as Mwala Sports Grond which was not in the feasibility study. In the feasibility study, Garissa County had been allocated an academy at Lagdera’s Modogashe Secondary School however it is not among the academies being constructed currently. The feasibility study does not have details of project costs, technical and engineering designs but includes allowances. At page 12 of the feasibility study, the study refers to Kenya Secondary School Sports Association as part of its consideration, however the allocation of the academies does not reflect the actual demand, talent as exhibited at the KSSSA national finals over the years. There are 12 new academies where a feasibility study was not conducted and one in Garissa County was removed from the list. In the tender advert marked JNN3 the 1 st respondent has a new site that was not in the feasibility study. The implementation of the academies is therefore without any feasibility study in the following sites; Kenya Academy of Sports at Kasarani Constituency; Kibigos Primary School in Elgeyo Marakwet; Lunyofu Sports Grounds in Budalangi Constituency;
Nalondo Boys High School in Kabuchai Constituency; Kombani Football Academy at Matuga Constituency in Kwale; Kimuchu Primary School in Thika Town; Garbatula Boys High School in Isiolo South; Nzombe Sports Ground in Kitui East Constituency; St. Patrick Iten, Kapchebau Grounds both in Elgeyo Marakwet County; Kotulo Primary School in Wajir County and Elwak Baraza Park Mandera County.
24. The petitioner asserts that the feasibility study fails to provide clear evidence that the process followed the requirements of the constitution and Article 10. Further the respondent’s documents mention land availability but do not demonstrate proper land documentation such as title deeds or proof of transfer. Further, the respondent fails to provide sufficient evidence of compliance with public procurement laws during the selection of sites and the establishment of the academies. There is no indication that the procurement process for land, construction or any associated services followed the legal requirements for competitive bidding. Additionally, the feasibility study fails to detail the exact criteria used for site selection since the study was limited to only 25 constituencies. There is no explanation as to how the 1 st respondent arrived at selecting the 25 sites for feasibility study. There is no evidence or justification as to why counties such as Elgeyo Marakwet were given four academies despite the fact that no feasibility study was conducted in the county and neither is there an explanation why Garissa was left out despite feasibility studies being conducted at Mogogashe Primary School nor is there any justification for
changes of sites for example from Sinai Primary in Yatta to Mwala Sports Grounds in Mwala Constituency.
25. The Petitioner further argues that the feasibility study mentions site specific consultations, but there is a lack of clarity about the formal procedures followed, which raises questions about whether the public was adequately informed about the selection criteria and whether all relevant stakeholders including local communities, education officials and youth organizations were involved in a meaningful manner. The petitioner asserts that although the respondent claims that consultations took place with local authorities and school administrators, that does not constitute genuine public participation, as the consultation appears to have been limited to a select group of officials and community leaders. However, that is not supported by any evidence.
26. The petitioner affirms that there is no clear documentation to show that public notices were issued, community meetings were held or that feedback from the general public was gathered or considered in the selection of the said sites. The lack of evidence of broad public engagement is a significant concern that undermines the legitimacy of the respondent’s actions. He emphasizes the need for genuine public participation in decisions that affect the local community, especially in the establishment of sports academies that will directly impact students, parents and local residents. The respondent’s failure to provide evidence of broad based public engagement undermines the process and shows that the public was not adequately consulted. Although the respondent stated that public
participation was meaningfully conducted through consultations with stakeholders such as county governors, members of parliament, MCAs, land officers and school management, it failed to provide any specific evidence or records that substantiate those claims. No meeting minutes, reports, or documentation have been presented to demonstrate that the said consultations were genuine, inclusive and in compliance with the requirements of the Constitution under Article 10. He argues that the Constitution of Kenya mandates that public participation be both transparent and inclusive in all public decision-making processes. Thus, in the absence of tangible evidence and documentation, it is clear that the respondents did not discharge their constitutional duty to ensure meaningful public participation and therefore in violation of Article 10 of the Constitution.
27. On the respondent’s contention that the petition is premature because the process is ongoing, the petitioner deposes that legal compliance and procedural fairness are foundational to the project’s legitimacy. The failure to adhere to the required legal and constitutional standards at the current stage will irreparably undermine the entire project and cannot be remedied at a later stage.
28. The petitioner argues that annexture DO3 which is a copy of the statistics showing distribution of athletes does not support the decision of the respondent in piloting the 37 sports academies in various constituencies as Elgeyo Marakwet has only a total of 56 but has been allocated 4 sports academies which means that every
constituency in the county has an academy, whereas counties such as Meru which has 96, Kajiado with 81, Kericho with 56, Kilifi with 148, Kisumu with 141, Mombasa with 229, Nakuru with 56 and Trans Nzoia with 171 have no sports academies being piloted currently. There is no justification for the respondents’ decision besides it being discriminative, unfair and lacks transparency. Nairobi City Council has the highest number at 253 but has been allocated only two academies whilst Elgeyo Marakwet with 56 has 4, Busia with 36 has 3 sports academies, Machakos with 44 has 3 academies, Kitui with 30 has been allocated 2. Further, the respondents have failed to provide a satisfactory explanation for the exclusion of counties such as Kisii, Nyamira, Nakuru, Kericho, Mombasa and Tans Nzoia which have significant sports talent and growth potential. The failure to prioritize the said counties goes against the constitutional promise of equitable development and inclusive growth, as guaranteed under Article 27 and 20 of the Constitution.
29. The petitioner argues that while the respondents justify the allocation based on demand and existing infrastructure, they fail to acknowledge that certain counties, particularly those associated with political figures and personal interests have been unduly favoured. He maintains that the allocation process lacks transparency and the failure to justify the unequal distribution of resources between counties, particularly when comparing counties with substantial sports talent reveals a systemic flaw in the selection process. The respondents have not provided any verifiable evidence of the criteria used to select counties, leaving the process opaque
and vulnerable to biases. The respondents’ claim that the allocation was based on demand and infrastructure is insufficient without providing clear, objective criteria.
30. The petition was disposed of by way of written submissions.
Petitioner’s Submissions
31. The petitioner identified four issues for determination as follows; whether the respondents carried out public participation ; whether the respondents unfairly, inequitably, with favouritism, irregularly,
discriminatingly, opaquely and without lawful justification allocated the pilot constituency sports academies ; whether the respondents failed to provide information on the decision to distribute the pilot academies and on the procurement process used in the contracts and whether the respondents breached the Public procurement and Disposal Act as read with the Constitution in allocating and piloting the constituency sports academies and awarding tenders .
32. On the first issue, the petitioner relied on the Supreme Court case of British American Tobacco Kenya PLC vs Cabinet Secretary for the Ministry of Health & 2 Others; Kenya Tobacco Control Alliance & Another (Interested Parties); Mastermind Tobacco Kenya Limited (Affected Party) [2019] KESC 15(KLR) which provided the framework for public participation as follows: -
From the foregoing analysis, we would like to underscore that public participation and consultation is a living constitutional principle that goes to the constitutional tenet of the sovereignty of the people. It is through public participation that the people continue to find their sovereign place in the governance they have delegated to both the National and County Governments. Consequently, while Courts have pronounced themselves on this issue, in line with this Court’s mandate under Section 3 of the Supreme Court Act, we would like to delimit the following framework for public participation.
Guiding Principles for public participation
i. As a constitutional principle under Article 10(2) of the Constitution, public participation applies to all aspects of governance.
ii. The public officer and or entity charged with the performance of a particular duty bears the onus of ensuring and facilitating public participation.
iii. The lack of a prescribed legal framework for public participation is no excuse for not conducting public participation; the onus is on the public entity to give effect to this constitutional principle using reasonable means.
iv. Public participation must be real and not illusory. It is not a cosmetic or a public relations act. It is not a mere formality to be undertaken as a matter of course just to ‘fulfill’ a
constitutional requirement. There is need for both quantitative and qualitative components in public participation.
v. Public participation is not an abstract notion; it must be purposive and meaningful.
vi. Public participation must be accompanied by reasonable notice and reasonable opportunity. Reasonableness will be determined on a case to case basis.
vii. Public participation is not necessarily a process consisting of oral hearings, written submissions can also be made. The fact that someone was not heard is not enough to annul the process.
viii. Allegation of lack of public participation does not automatically vitiate the process. The allegations must be considered within the peculiar circumstances of each case: the mode, degree, scope and extent of public participation is to be determined on a case-to-case basis.
ix. Components of meaningful public participation include the following:
a. clarity of the subject matter for the public to understand;
b. structures and processes (medium of engagement) of participation that are clear and simple;
c. opportunity for balanced influence from the public in general;
d. commitment to the process;
e. inclusive and effective representation;
f. integrity and transparency of the process;
g. capacity to engage on the part of the public, including that the public must be first sensitized on the subject matter.
33. The petitioner argued that the respondents did not conduct any public participation before selecting the various counties as beneficiaries of the constituency sports academies. Further, while the respondents justify the establishment of the constituency level sports academies on the Feasibility Study and Strategic Plan, they fail to address the fundamental legal and constitutional requirements set out in the Constitution and the Sports Act. Additionally, the respondents’ claim of public participation lacks the necessary evidence and transparency.
34. The petitioner reiterated what he had deponed in his affidavits and submitted that the respondents’ actions were in violation of Article 10 and the constitutional principles of transparency and accountability. Reliance was placed in the case of Mundia vs Kenya Copyright Board & 5 Others; Kenya Dental Association & 6 Others (Interested Parties) [2025] KEHC 11144 (KLR) where the court held:-
According to Mr. Nyakwara, the notice was issued on 18 th November 2022 and gave the window for submissions of comments up to 5pm on 22 nd November 2022.
Once the petitioner attacked the process on grounds that it did not meet the constitutional threshold for public participation, the burden fell on the 1 st respondent to satisfy the Court that the process complied with the constitutional requirements on public participation.
I have gone through the affidavits filed on behalf of the respondents, as well as their bundle of documents. From the evidence placed before this court, the question is whether there was reasonable, meaningful and effective public participation before the tariffs were gazetted. The petitioner argued that there was no public participation while the respondents maintained that there was meaningful and effective public participation.
Kenya is founded on national values and principles of governance one of which is public participation. The constitutional text in article 10(1) leaves no doubt that national values and principles of
governance must be adhered to in the conduct public affairs which must be done in an open and transparent manner. In that regard, the 1 st respondent was required to facilitate public participation that was reasonable, meaningful and effective both qualitatively and quantitatively.
To facilitate public participation the 1 st respondent was to have taken deliberate positive measures that would make it possible for the public
to receive the draft tariffs and thereafter, accord them an opportunity to contribute their views on the tariffs. That is, public participation must be reasonable and meaningful so that those interested are given an equal opportunity to know about the Bill or issue and have adequate say on it.
In conducting public participation, the 1 st respondent was not doing a favour to the public but fulfilling a constitutional command. The 1 st respondent was required to disseminate information to the public about the tariffs; invite them to give comments but at the same time allow them reasonable opportunity to receive, read and understand the tariffs so that they could participate and have a say on the tariffs.
Public participation must not be reduced to a ritual meant to merely fulfil a constitutional requirement. It must be real, meaningful and effective so that it can influence the process for which it is being undertaken. Accepting the respondents’ argument that the manner in which public participation was conducted met the threshold of meaningful and effective public participation, would reduce public participation to a farce and therefore a mockery of the Consti
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