1. The plaintiff /applicant filed the suit herein seeking the following orders :
a) An order of temporary injunction do issue restraining the defendant / respondent by themselves, assignees, servants and / or whoever may be working under their instructions from conducting evaluation process ,awarding of tenders and issuing of commencement letters and or there bc an order restraining the commencing of routine maintenance and spot improvement of various roads as advertised in tender notice dated 21/11/2024;for financial year 2024/25 for NYARIBARI MASABA, NYARIBARI CHACHE, KITUTU CHACHE SOUTH, K1TUTU CHACHE NORTH, BOBASI, BONCHARI, SOUTH MUGIRANGO, BOMACHOGE CI-IACHE AND BOMACHOGE BORABU constituencies pending the reconstitution of the Kenya rural roads authority Kisii region, KERRA Kisii regional office and or the KERRA tender evaluation and awarding committee, Pending the hearing and determination of this application
b) A declaration that the actions on issuance of tender letters and allocation of tender notice dated 21/11/2024; for financial year 2024/25 for NYARIBARI MASABA, NYARIBARI CHACHE, KITUTU CHACHE SOUTH, KITUTU CHACHE NORTH, BOBASI, BONCHARI, SOUTH MUGIRANGO, BOMACHOGE CHACHE AND BOMACHOGE BORABU constituencies by KERRA officials Kisii-region were illegal null and void abinitio having failed to follow/ comply to the laid down laws and procedures.
c) An order for the 1 st defendant to re-advertise tenders for financial year 2024/25 for NYARIBARI MASABA, NYARIBARI CHACHE, KITUTU CHACHE SOUTH, KITUTU CHACHE NORTH, BOBASI, BONCHARI, SOUTH MUGIRANGO, BOMACHOGE CHACHE AND BOMACHOGE BORABU constituencies by KeRRA officials Kisii-region
d) An order of certiorari quashing the decisions of respondents on tender letters already issued and tender awarding already done without evaluation and due legal tendering procedures.
e) A declaration that Kenya rural roads authority Kisii-region officials and / or KeRRA tender evaluation and awarding committee is unfit to hold office and / or carry out the process of evaluating and awarding tenders advertised on 21/11/2024 FY 2024/25 Kenya rural roads authority-kisii region.
f) An order of prohibition, prohibiting the respondents/ defendants from issuing tenders/ tender letters without following due right and legal procedures.
g) Costs of this petition.
h) Any other relief that this Honourable Court considers appropriate and just to grant.
2. The plaintiff also filed and application dated 13.2.25 supported by the annexed affidavit of KENNEDY SAGINI seeking orders ;
a. An order of temporary injunction do issue restraining the defendants / respondents by themselves, assignees, servants and / or whoever may be working under their instructions from conducting evaluation process ,awarding of tenders and issuing of commencement letters and or there be an order restraining the commencing of routine maintenance and spot improvement of various roads under 22% and 10% RMLF as advertised in tender notice dated 21/11/2024;for financial year 2024/25 for
NYARIBARI MASABA, NYARIBARI CHACHE, KITUTU CHACHE SOUTH, KITUTU CHACHE NORTH, BOBASI, BONCHARI, SOUTH MUGIRANGO, BOMACHOGE CHACHE AND BOMACHOGE BORABU constituencies ,Pending the hearing and determination of this application
b. Pending the hearing and determination of this suit, this Honourable Court be pleased to issue Temporary order Restraining the Respondents either by themselves, their agents, servants, or any other person acting under their instructions from conducting evaluation process and awarding of tenders / issuance of commencement letters or an order restraining the commencement of routine maintenance and spot improvement Of various roads under 22% and 10% RMLF for financial year FY 2024/2025 for NYARIBARI MASABA, NYARIBARI CHACHE, KITUTU CHACHE SOUTH, KITUTU CHACHE NORTH, BOBASI, BONCHARI, SOUTH MUGIRANGO, BOMACHOGE CHACHE AND BOMACHOGE BORABU constituencies.
c. A declaration that the actions on issuance of tender letters and allocation of tenders of tender notice dated 21/11/2024; for financial year 2024/25 for NYARIBARI MASABA, NYARIBARI CHACHE, KITUTU CHACHE SOUTH, KITUTU CHACHE NORTH, BOBASI, BONCIIARI, SOUTH MUGIRANGO, BOMACHOGE CHACHE AND BOMACIIOGE BORABU constituencies by KeRRA officials Kisii-region were illegal null and void abinilio having failed to follow/ comply to the laid down laws and procedures
d. An order for the defendants to re-advertise tenders for financial year 2024/25 for tender notice dated 21/11/2024 for NYARIBARI MASABA, NYARIBARI CHACHE, KITUTU CHACHE SOUTH, KITUTU CHACHE NORTH, BOBASI, BONCHARI, SOUTH MUGIRANGO, BOMACHOGE CHACHE AND BOMACHOGE BORABU constituencies by KeRRA officials Kisii-region
e. THAT the Respondents bear the costs of this application.
f. Such further orders be made as the court may deem fit .
3. The respondents filed replying affidavit dated 28.2.25 sworn by Engineer Walter Nyariki the Regional Director Kenya Rural Roads Authourity . He told this court that they followed the law in awarding the tenders and that the process was overboard . Also that the applicants allegations are not true . Further that he has been advised by his counsel on record that the application violates the provisions of Section 28 and 167 of the of the Public Procurement & Asset Disposal Act (PPADA) which provides that disputes relating to the tendering process should be filed in the Public Procurement Administration Review Board . (PPARB) The respondents also averred that under Section 175 of the PPADA parties aggrieved by the decision of the Board should move appeals from the High Court on Appeal . The respondent cited the case of SPEAKER OF NATIONAL ASSEMBLY V KARUME (1992 ) where it was held :
‘’Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures’’.
4. Mr Nyariki also deponed that this suit is sub judice Kisii HCC NO E012 of 2024 which is pending in this court.
5. The applicants filed a supplementary affidavit of Mr Sagini in which he replied that the replying affidavit contains falsehood and that the High Court had Inherent jurisdiction over the functions state organs and that Sections 28 and 167 of the PPADA do not oust the jurisdiction of this court . also the civil suit E 012 of 2025 does not exist as it was withdrawn.
6. I have carefully considered the prayers in the suit, the application the supporting and further affidavits , the replying affidavit and the able submissions by both counsel herein. The issues arising for determination are :
a. Whether this court has jurisdiction to hear and determine this suit and /or .
b. Whether the application meets the threshold for granting of an interim injunction.
Whether this court has jurisdiction to hear and determine this suit
7. On whether this court has jurisdiction to hear and determine this suit. The respondents averred that this court lacks jurisdiction to hear this suit by virtue of Section 28 and 167 of the PPADA . The applicants responded by stating that the High court has inherent jurisdiction to hear and determine all matters before it including supervisory powers over state organs and that section 28 and 167 of the Act does not oust the Jurisdiction of this court.
8. Section 27 of PPADA provides for establishment of the Public Procurement Administrative Review Board. Section 28 provides for the functions of the Review Board to wit ;- shall be—
a. reviewing, hearing and determining tendering and asset disposal disputes; and
9. Section 167. of the PPADA provides that ;-
Subject to the provisions of this Part, a candidate or a tenderer, who claims to have suffered or to risk suffering, loss or damage due to the breach of a duty imposed on a procuring entity by this Act or the Regulations, may seek administrative review within fourteen days of notification of award or date of occurrence of the alleged breach at any stage of the procurement process, or disposal process as in such manner as may be prescribed.
10. In Mombasa High Court Constitutional Petition No. 159 of 2018 consolidated with Constitutional Petition No. 201 of 2019 (2020) eKLR elaborately dealt with the doctrine of exhaustion. The Court stated as follows:
52. The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. This encourages alternative dispute resolution mechanisms in line with Article 159 of the Constitution and was aptly elucidated by the High Court in R vs. Independent Electoral and Boundaries Commission (I.E.B.C) Ex Parte National Super Alliance (NASA) Kenya and 6 others [2017] eKLR, where the Court opined thus:
42. ''This doctrine is now of esteemed juridical lineage in Kenya. It was perhaps most felicitously stated by the Court of Appeal in Speaker of National Assembly v Karume [1992] KLR 21 in the following oft-repeated words:
Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures.
43. While this case was decided before the Constitution of Kenya 2010 was promulgated, many cases in the Post-2010 era have found the reasoning sound and provided justification and rationale for the doctrine under the 2010 Constitution. We can do no better in this regard than cite another Court of Appeal decision which provides the Constitutional rationale and basis for the doctrine.
In the case of Geoffrey Muthiga Kabiru & 2 others – vs- Samuel Munga Henry & 1756 others [2015] eKLR, where the Court of Appeal stated that:
It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. The Ex Parte Applicants argue that this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.''
11. The Court also dealt with the exceptions to the doctrine of exhaustion. It expressed itself as follows: -
59.'' However, our case law has developed a number of exceptions to the doctrine of exhaustion. In R. vs Independent Electoral and Boundaries Commission (I.E.B.C.) & Others ex parte The National Super Alliance Kenya (NASA) (supra), after exhaustively reviewing Kenya's decisional law on the exhaustion doctrine, the High Court described the first exception thus:
What emerges from our jurisprudence in these cases are at least two principles: while, exceptions to the exhaustion requirement are not clearly delineated, Courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved – including level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies. As the Court of Appeal acknowledged in the Shikara Limited Case (supra), the High Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it. This exception to the exhaustion requirement is particularly likely where a party pleads issues that verge on Constitutional interpretation especially in virgin areas or where an important constitutional value is at stake. See also Moffat Kamau and 9 others vs Aelous (K) Ltd and 9 others.)
60. As observed above, the first principle is that the High Court may, in exceptional circumstances consider, and determine that the exhaustion requirement would not serve the values enshrined in the Constitution or law and allow the suit to proceed before it. It is also essential for the Court to consider the suitability of the appeal mechanism available in the context of the particular case and determine whether it is suitable to determine the issues raised.''
12. It is clear to me from the foregoing that section 167 of PPADA provides for an alternative dispute resolution mechanism before the aggrieved parties can have a right to move the High court for review of the Boards decision under Section 175 of the Act . Section 9 (2) of the Fair Administration Act (FAA) bars the High court from reviewing administrative decisions unless mechanisms for appeal or review have been exhausted.
12. Section 9(2) of the FAA A provides that:
9(2) The High Court or a subordinate court under sub-section (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted
13. The Applicants are tenderers aggrieved by the decision of the respondents in awarding the tenders to other entitles other than their own . Section 9(2) of the Fair Administration Act provides that:
9(2) The High Court or a subordinate court under sub-section (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.
14. The Jurisdiction of the High court flows from the constitution and statutes . The applicants ought to have moved the Board under section 167 of the Act instead of coming straight to this court.
15. The did not exhaust the alternative disputes resolution mechanism laid down in the Act. Jurisdiction is everything as was held in the case of Owners of the Motor Vessel “Lillian S’ v. Caltex Oil (Kenya) Ltd [1989] KLR 1;
“…Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”
16. They can only move this court on review of the decision of the Board under Section 175 of the PPADA. The suit herein is therefore pre-mature and I proceed to strike it out with costs to the respondents.
Delivered virtually in the presence of Wesonga for the applicants
Miss Bosire for respondents
CA -Oigo
a) An order of temporary injunction do issue restraining the defendant / respondent by themselves, assignees, servants and / or whoever may be working under their instructions from conducting evaluation process ,awarding of tenders and issuing of commencement letters and or there bc an order restraining the commencing of routine maintenance and spot improvement of various roads as advertised in tender notice dated 21/11/2024;for financial year 2024/25 for NYARIBARI MASABA, NYARIBARI CHACHE, KITUTU CHACHE SOUTH, K1TUTU CHACHE NORTH, BOBASI, BONCHARI, SOUTH MUGIRANGO, BOMACHOGE CI-IACHE AND BOMACHOGE BORABU constituencies pending the reconstitution of the Kenya rural roads authority Kisii region, KERRA Kisii regional office and or the KERRA tender evaluation and awarding committee, Pending the hearing and determination of this application
b) A declaration that the actions on issuance of tender letters and allocation of tender notice dated 21/11/2024; for financial year 2024/25 for NYARIBARI MASABA, NYARIBARI CHACHE, KITUTU CHACHE SOUTH, KITUTU CHACHE NORTH, BOBASI, BONCHARI, SOUTH MUGIRANGO, BOMACHOGE CHACHE AND BOMACHOGE BORABU constituencies by KERRA officials Kisii-region were illegal null and void abinitio having failed to follow/ comply to the laid down laws and procedures.
c) An order for the 1 st defendant to re-advertise tenders for financial year 2024/25 for NYARIBARI MASABA, NYARIBARI CHACHE, KITUTU CHACHE SOUTH, KITUTU CHACHE NORTH, BOBASI, BONCHARI, SOUTH MUGIRANGO, BOMACHOGE CHACHE AND BOMACHOGE BORABU constituencies by KeRRA officials Kisii-region
d) An order of certiorari quashing the decisions of respondents on tender letters already issued and tender awarding already done without evaluation and due legal tendering procedures.
e) A declaration that Kenya rural roads authority Kisii-region officials and / or KeRRA tender evaluation and awarding committee is unfit to hold office and / or carry out the process of evaluating and awarding tenders advertised on 21/11/2024 FY 2024/25 Kenya rural roads authority-kisii region.
f) An order of prohibition, prohibiting the respondents/ defendants from issuing tenders/ tender letters without following due right and legal procedures.
g) Costs of this petition.
h) Any other relief that this Honourable Court considers appropriate and just to grant.
2. The plaintiff also filed and application dated 13.2.25 supported by the annexed affidavit of KENNEDY SAGINI seeking orders ;
a. An order of temporary injunction do issue restraining the defendants / respondents by themselves, assignees, servants and / or whoever may be working under their instructions from conducting evaluation process ,awarding of tenders and issuing of commencement letters and or there be an order restraining the commencing of routine maintenance and spot improvement of various roads under 22% and 10% RMLF as advertised in tender notice dated 21/11/2024;for financial year 2024/25 for
NYARIBARI MASABA, NYARIBARI CHACHE, KITUTU CHACHE SOUTH, KITUTU CHACHE NORTH, BOBASI, BONCHARI, SOUTH MUGIRANGO, BOMACHOGE CHACHE AND BOMACHOGE BORABU constituencies ,Pending the hearing and determination of this application
b. Pending the hearing and determination of this suit, this Honourable Court be pleased to issue Temporary order Restraining the Respondents either by themselves, their agents, servants, or any other person acting under their instructions from conducting evaluation process and awarding of tenders / issuance of commencement letters or an order restraining the commencement of routine maintenance and spot improvement Of various roads under 22% and 10% RMLF for financial year FY 2024/2025 for NYARIBARI MASABA, NYARIBARI CHACHE, KITUTU CHACHE SOUTH, KITUTU CHACHE NORTH, BOBASI, BONCHARI, SOUTH MUGIRANGO, BOMACHOGE CHACHE AND BOMACHOGE BORABU constituencies.
c. A declaration that the actions on issuance of tender letters and allocation of tenders of tender notice dated 21/11/2024; for financial year 2024/25 for NYARIBARI MASABA, NYARIBARI CHACHE, KITUTU CHACHE SOUTH, KITUTU CHACHE NORTH, BOBASI, BONCIIARI, SOUTH MUGIRANGO, BOMACHOGE CHACHE AND BOMACIIOGE BORABU constituencies by KeRRA officials Kisii-region were illegal null and void abinilio having failed to follow/ comply to the laid down laws and procedures
d. An order for the defendants to re-advertise tenders for financial year 2024/25 for tender notice dated 21/11/2024 for NYARIBARI MASABA, NYARIBARI CHACHE, KITUTU CHACHE SOUTH, KITUTU CHACHE NORTH, BOBASI, BONCHARI, SOUTH MUGIRANGO, BOMACHOGE CHACHE AND BOMACHOGE BORABU constituencies by KeRRA officials Kisii-region
e. THAT the Respondents bear the costs of this application.
f. Such further orders be made as the court may deem fit .
3. The respondents filed replying affidavit dated 28.2.25 sworn by Engineer Walter Nyariki the Regional Director Kenya Rural Roads Authourity . He told this court that they followed the law in awarding the tenders and that the process was overboard . Also that the applicants allegations are not true . Further that he has been advised by his counsel on record that the application violates the provisions of Section 28 and 167 of the of the Public Procurement & Asset Disposal Act (PPADA) which provides that disputes relating to the tendering process should be filed in the Public Procurement Administration Review Board . (PPARB) The respondents also averred that under Section 175 of the PPADA parties aggrieved by the decision of the Board should move appeals from the High Court on Appeal . The respondent cited the case of SPEAKER OF NATIONAL ASSEMBLY V KARUME (1992 ) where it was held :
‘’Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures’’.
4. Mr Nyariki also deponed that this suit is sub judice Kisii HCC NO E012 of 2024 which is pending in this court.
5. The applicants filed a supplementary affidavit of Mr Sagini in which he replied that the replying affidavit contains falsehood and that the High Court had Inherent jurisdiction over the functions state organs and that Sections 28 and 167 of the PPADA do not oust the jurisdiction of this court . also the civil suit E 012 of 2025 does not exist as it was withdrawn.
6. I have carefully considered the prayers in the suit, the application the supporting and further affidavits , the replying affidavit and the able submissions by both counsel herein. The issues arising for determination are :
a. Whether this court has jurisdiction to hear and determine this suit and /or .
b. Whether the application meets the threshold for granting of an interim injunction.
Whether this court has jurisdiction to hear and determine this suit
7. On whether this court has jurisdiction to hear and determine this suit. The respondents averred that this court lacks jurisdiction to hear this suit by virtue of Section 28 and 167 of the PPADA . The applicants responded by stating that the High court has inherent jurisdiction to hear and determine all matters before it including supervisory powers over state organs and that section 28 and 167 of the Act does not oust the Jurisdiction of this court.
8. Section 27 of PPADA provides for establishment of the Public Procurement Administrative Review Board. Section 28 provides for the functions of the Review Board to wit ;- shall be—
a. reviewing, hearing and determining tendering and asset disposal disputes; and
9. Section 167. of the PPADA provides that ;-
Subject to the provisions of this Part, a candidate or a tenderer, who claims to have suffered or to risk suffering, loss or damage due to the breach of a duty imposed on a procuring entity by this Act or the Regulations, may seek administrative review within fourteen days of notification of award or date of occurrence of the alleged breach at any stage of the procurement process, or disposal process as in such manner as may be prescribed.
10. In Mombasa High Court Constitutional Petition No. 159 of 2018 consolidated with Constitutional Petition No. 201 of 2019 (2020) eKLR elaborately dealt with the doctrine of exhaustion. The Court stated as follows:
52. The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. This encourages alternative dispute resolution mechanisms in line with Article 159 of the Constitution and was aptly elucidated by the High Court in R vs. Independent Electoral and Boundaries Commission (I.E.B.C) Ex Parte National Super Alliance (NASA) Kenya and 6 others [2017] eKLR, where the Court opined thus:
42. ''This doctrine is now of esteemed juridical lineage in Kenya. It was perhaps most felicitously stated by the Court of Appeal in Speaker of National Assembly v Karume [1992] KLR 21 in the following oft-repeated words:
Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures.
43. While this case was decided before the Constitution of Kenya 2010 was promulgated, many cases in the Post-2010 era have found the reasoning sound and provided justification and rationale for the doctrine under the 2010 Constitution. We can do no better in this regard than cite another Court of Appeal decision which provides the Constitutional rationale and basis for the doctrine.
In the case of Geoffrey Muthiga Kabiru & 2 others – vs- Samuel Munga Henry & 1756 others [2015] eKLR, where the Court of Appeal stated that:
It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. The Ex Parte Applicants argue that this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.''
11. The Court also dealt with the exceptions to the doctrine of exhaustion. It expressed itself as follows: -
59.'' However, our case law has developed a number of exceptions to the doctrine of exhaustion. In R. vs Independent Electoral and Boundaries Commission (I.E.B.C.) & Others ex parte The National Super Alliance Kenya (NASA) (supra), after exhaustively reviewing Kenya's decisional law on the exhaustion doctrine, the High Court described the first exception thus:
What emerges from our jurisprudence in these cases are at least two principles: while, exceptions to the exhaustion requirement are not clearly delineated, Courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved – including level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies. As the Court of Appeal acknowledged in the Shikara Limited Case (supra), the High Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it. This exception to the exhaustion requirement is particularly likely where a party pleads issues that verge on Constitutional interpretation especially in virgin areas or where an important constitutional value is at stake. See also Moffat Kamau and 9 others vs Aelous (K) Ltd and 9 others.)
60. As observed above, the first principle is that the High Court may, in exceptional circumstances consider, and determine that the exhaustion requirement would not serve the values enshrined in the Constitution or law and allow the suit to proceed before it. It is also essential for the Court to consider the suitability of the appeal mechanism available in the context of the particular case and determine whether it is suitable to determine the issues raised.''
12. It is clear to me from the foregoing that section 167 of PPADA provides for an alternative dispute resolution mechanism before the aggrieved parties can have a right to move the High court for review of the Boards decision under Section 175 of the Act . Section 9 (2) of the Fair Administration Act (FAA) bars the High court from reviewing administrative decisions unless mechanisms for appeal or review have been exhausted.
12. Section 9(2) of the FAA A provides that:
9(2) The High Court or a subordinate court under sub-section (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted
13. The Applicants are tenderers aggrieved by the decision of the respondents in awarding the tenders to other entitles other than their own . Section 9(2) of the Fair Administration Act provides that:
9(2) The High Court or a subordinate court under sub-section (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.
14. The Jurisdiction of the High court flows from the constitution and statutes . The applicants ought to have moved the Board under section 167 of the Act instead of coming straight to this court.
15. The did not exhaust the alternative disputes resolution mechanism laid down in the Act. Jurisdiction is everything as was held in the case of Owners of the Motor Vessel “Lillian S’ v. Caltex Oil (Kenya) Ltd [1989] KLR 1;
“…Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”
16. They can only move this court on review of the decision of the Board under Section 175 of the PPADA. The suit herein is therefore pre-mature and I proceed to strike it out with costs to the respondents.
Delivered virtually in the presence of Wesonga for the applicants
Miss Bosire for respondents
CA -Oigo