A. Introduction
1. These proceedings were initiated by way of an ex parte chamber summons, dated 3rd September 2026, seeking leave to initiate judicial review proceedings, for 2 orders of certiorari and 1 of mandamus, with respect to termination of Tender No. KeNHA/2915/2025 for upgrading to bitumen standards of Masara-Muhuru Bay (B1) Road. It was also sought that leave, if granted, do operate as a stay of the decision to terminate the tender.
2. The matter was placed before me, on 7th September 2026, under certificate of urgency, and I gave directions, relating to service, filing of responses and written submissions, and I allocated a date for ruling, being 18th September 2026, on whether the leave and stay sought should be granted.
B. The Case by the Applicant
3. The factual background, as emerges from the statutory statement and the verifying affidavit, sworn by Mr. Mohamed Maalim Kulmia, both dated 3rd September 2026, is that the respondents had advertised the tender, Tender No. KeNHA/2915/2025 for upgrading to bitumen standards of Masara-Muhuru Bay (B1) Road, and the ex parte applicant placed a bid, which proved successful, for an award was made to it, vide a letter dated 28th January 2026. The ex parte applicant avers to have had complied with the post-award requirements of formally accepting the tender award, submission of a performance security and procuring an all-risk insurance cover. Despite that, the respondents refused to counter-sign the contract document, without assigning any reasons, and subsequently purported to terminate the procurement, vide a letter dated 7th May 2026, and proceeded to re-advertise the same works under Tender No. KeNHA/2953/2026. The deponent of the affidavit, Mr. Kulmia, explains that there was some delay in bringing the application, which he says was due to ill-health on his part.
4. Attached to the verifying affidavit are copies of a document authorising Mr. Kulmia to act on behalf of the ex parte applicant; medical records as proof that Mr. Kulmia had been unwell; the tender notice for Tender No. KeNHA/2915/2025; the notification of intention to award the tender to the ex parte applicant, dated 12th January 2026; the award of the tender to the ex parte applicant, dated 28th January 2026; the acceptance of the award, dated 30th January 2026; the performance security, dated 16th February 2026; the contractors all risks insurance policy, dated 19th March 2026; the termination of the tender letter, dated 7th May 2026; and the tender notice for Tender No. KeNHA/2953/2026.
C. The Response by the Respondents
5. The respondents have replied to the application, vide an affidavit sworn by Mr. Joseph Kimaru, on 10th September 2026. It is conceded that the tender, in Tender No. KeNHA/2915/2025, was awarded to the ex parte applicant, but issues were raised subsequently, relating to the ex parte applicant having relied on forged documents. The respondents allegedly conducted independent investigations or review of the allegations of forgery, and decided to terminate the award, and to re-advertise the tender for the said works, under Tender No. KeNHA/2953/2026. It is averred that the re-advertisement provoked litigation, by another party, in Nairobi HCCHRPET. No. E398 of 2026, over both tenders, that is Tender No. KeNHA/2915/2025 and Tender No. KeNHA/2953/2026, where the ex parte applicant is named as an interested party, and the said proceedings are pending judgement on 28th January 2027.
6. Copies of the correspondence on the alleged forgery, the pleadings and filings in Nairobi HCCHRPET. No. E398 of 2026, and the directions given in that cause, are attached to the affidavit, in support of the averments made.
D. The Rejoinder by the Applicant
7. The replying affidavit prompted the filing of a further affidavit by the ex parte applicant, sworn by Mr. Kulmia, on 14th September 2026. The ex parte applicant pleads ignorance to the alleged forgery, and the independent review allegedly carried out by the respondents, and avers that it was condemned unheard. It is asserted that no reasons were given in the termination letter of 7th May 2026. The pendency of constitutional petition, in Nairobi HCCHRPET. No. E398 of 2026, is conceded, but it is argued that the same does not affect the right of the ex parte applicant to mount judicial review proceedings.
E. The Written Submissions
8. The application for leave and stay was canvassed vide written submissions. The respondents were the first to file submissions, dated 11th September 2026, followed by the ex parte applicant, whose submissions are dated 14th September 2026.
9. The ex parte applicant addresses the issues of grant of leave and whether the same should operate as stay. It is submitted, relying on Republic vs. Asset Recovery Agency & another; Mwangi (Ex parte Applicant) [2026] KEHC 9369 (KLR), that an applicant only needs to establish an arguable case, for leave to be granted. It is submitted that such an arguable case exists herein, for section 63(1)(i) of the Public Procurement and Asset Disposal Act, Cap. 412C, Laws of Kenya, permits the procuring entity to terminate or cancel procurement proceedings only before notification of the award, and not after. It is averred that cancellation in this case happened after notification, hence it was not lawful. Republic vs. Public Procurement Administrative Review Board & 3 others; Astronea Construction Limited (Ex parte Applicant) [2024] KEHC 1429 (KLR) is cited in support.
10. On the alleged forgeries, and the investigations into them, it is submitted that the ex parte applicant was neither involved nor notified of them, hence the right to fair administrative action and the rules of natural justice were violated, and George Philip M. Wekulo vs. Law Society of Kenya & another [2005] KEHC 101 (KLR) is cited. On stay, it is urged that these proceedings would be rendered otiose, should the procurement proceedings, with respect to Tender No. KeNHA/2953/2026, be carried out to their logical conclusion, and Taib vs. Minister for Local Government & 3 others [2006] KEHC 3166 (KLR) is relied on.
11. The written submissions by the respondents turn on only 1 issue, and that is whether grant of leave should operate as a stay. It is submitted that the threshold for that has not been met. Giella vs. Cassman Brown & Co. Ltd [1973] EA 358, Mrao vs. First American Bank Kenya Limited & 2 others [2003] KLR 125, Sosplashed Limited & another vs. Pwani Maoni Limited & 3 others [2021] eKLR and Pius Kipchirchir Kogo vs. Frank Kimeli Tenai [2018] eKLR are cited.
F. The Issues for Determination
12. The first issue to determine is whether leave to bring judicial review proceedings should be granted in this case. The other issue is secondary, as to whether that grant of leave ought to operate as a stay of the procurement proceedings in Tender No. KeNHA/2953/2026, for whether the grant of leave should so operate as a stay is predicated on grant of leave in the first place. The ex parte applicant argues that the leave ought to be granted, and with it the stay. The respondents are non-committal on the matter of the grant of leave, in their written submissions, but assert that a proper case has not been made out for the order that the leave ought to operate as a stay. The facts deposed to in the replying affidavit point to a case being made that leave ought not be granted, for there is justification for the termination of the award, and the matter is sub judice, on account of the pendency of Nairobi HCCHRPET. No. E398 of 2026.
13. I pushed what ought to have been pure ex parte proceedings into inter partes hearing to give opportunity to the parties to address me on whether I would have jurisdiction to handle this matter at first instance, the dispute herein having emanated from public procurement proceedings. That would raise a jurisdiction question, which ought to be addressed first, in view of Owners of the Motor Vessel “Lillian S” vs. Caltex Oil (Kenya) Limited [1989] KLR 1 [1989] eKLR [1989] KECA 48 (KLR). None of the parties have addressed me on that, for both have chosen to jump first into the merits of the case.
G. The Applicable Law
14. The 2nd respondent herein, Kenya National Highways Authority, is a public entity, by dint of section 2 of the Public Procurement and Asset Disposal Act. It is a body corporate, established under section 3 of the Kenya Roads Act, Cap. 408, Laws of Kenya, which makes it a state corporation, within the meaning of section 2 of the State Corporations Act, Cap. 446, Laws of Kenya. All procurements and contracts management by State organs and public entities are subject to the provisions of the Public Procurement and Asset Disposal Act, and those undertaken by the 2nd respondent are no exception.
15. The proceedings, with relation to Tender No. KeNHA/2915/2025, were subject to the provisions of the Public Procurement and Asset Disposal Act. Invitation of tenders is governed by section 74, evaluation of tenders by section 80, successful tenders by section 86, notification of intention to enter into a contract by section 87, procurement for works by Part IX (sections 91 to 114), procurement contracts by Part XI (sections 134 to 154), and administrative review of procurement and disposal proceedings by Part XV (sections 167 to 175).
H. Analysis and Determination
16. At this stage, the court is not required to delve deep into the merits of the case, rather it is required to make a determination as to whether leave should be granted, based on a preliminary evaluation of the material presented. What that means is that a prima facie case should be established or presented, by the applicant, pointing to arguability of the substantive matter, should the leave be granted.
17. The case that the ex parte applicant presents is that an award of the tender in Tender No. KeNHA/2915/2025 had been made to it, but the contract itself was not executed, despite the ex parte applicant complying with the prerequisites preceding such execution. Instead of executing the contract, the respondents are accused of terminating the award, without giving any reasons. The ex parte applicant argues that that is adequate to establish that it has a prima facie case for mounting proceedings for the judicial review orders of certiorari and mandamus. It argues that there was no jurisdiction to terminate the award, in view of section 63(1)(i) of the Public Procurement and Asset Disposal Act.
18. The respondents assert that there was malfeasance on the part of the ex parte applicant, by way of relying on forged documents, to obtain award of the tender in Tender No. KeNHA/2915/2025, hence there is justification for the termination, and, in any case, the same matter is pending determination by another bench of the High Court in other proceedings.
19. The respondents invited tenders, for works, in Tender No. KeNHA/2915/2025. The ex parte applicant presented a bid, which was successful, and it was notified, under section 86 of the Public Procurement and Asset Disposal Act, of an intention to award the tender contract to it. It was required to comply with certain things, before entering into a procurement contract, in terms of section 135 of the Public Procurement and Asset Disposal Act. The ex parte applicant alleges that it got all the compliances, but the respondents purported to terminate or cancel the procurement proceedings, under section 63(1)(i) of the Public Procurement and Asset Disposal Act, before the contract was executed. It contends that the respondents could not possibly terminate the proceedings under that provision, for it had already been notified of the intention to enter into a contract. The respondents assert that there is justification for termination under that provision.
20. It is clear that the contract was yet to be executed, when the award was terminated, hence the procurement proceedings were still in progress. The termination or cancellation of the said proceedings, whether under section 63 or any other provision of the Public Procurement and Asset Disposal Act, still related to termination of a procurement process. Section 167 provides for what should happen, where a candidate or tenderer is aggrieved, on the basis of breach of a duty imposed on a procuring entity by the Act or the Regulations. The ex parte applicant alleges that the respondents refused to execute the contract, after they had notified it of an intention to enter into a contract, and after it had complied with all what they had required of it. It alleges risk of suffering, or loss, or damage, arising from the breach of duty to sign the contract, hence the assertion that leave be granted to quash the decision to terminate, and that the leave operate as a stay, to obviate fresh procurement proceedings being undertaken to its detriment.
21. Section 167(1) provides a remedy to such aggrieved party, they “may” seek administrative review of the decision, within 14 days. Section 167(1) is permissive. Section 167 should be read together with section 174, which provides that the right, under section 167(1), to administrative review, “is in addition to any other legal remedy a person may have.” That would mean that the relief under section 167(1) is not exclusive, the aggrieved party would be open to seek other remedies. It may opt not to seek administrative review, under section 167(1), and may move for other reliefs, either under the Constitution and the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, often referred to as the Mutunga Rules, or the Fair Administrative Action Act, Cap 7C, Laws of Kenya, and the Fair Administrative Action Rules, or the Civil Procedure Act, Cap. 21, Laws of Kenya, and the Civil Procedure Rules.
22. However, since the dispute resolution mechanism, provided for under Part XV of the Act, is alternative, and dedicated to a particular area of specialisation, a party seeking to approach the court directly, and, therefore, side-stepping that mechanism, must contend with the doctrines of avoidance and exhaustion, as stipulated in section 9(2)(3) of the Fair Administrative Action Act, and elaborated in such decisions as Speaker of National Assembly vs. Karume [1992] KLR 425.
23. The Public Procurement and Asset Disposal Act is the principal legislation, so far as governance of public procurements is concerned. Its preamble states that it was enacted “to give effect to Article 227 of the Constitution; to provide procedures for efficient public procurement and for assets disposal by public entities; and for connected purposes.” The Public Procurement and Asset Disposal Act provides a dedicated process for public procurement, as well as dedicated mechanisms, for dispute resolution, under Part XV of the Act. Section 27 of the Public Procurement and Asset Disposal Act establishes the Public Procurement Administrative Review Board, for the sole purpose set out in section 28, of “reviewing, hearing and determining tendering and asset disposal disputes.” Sections 167 to 174, of the Public Procurement and Asset Disposal Act, carry provisions on the procedures and powers of the Public Procurement Administrative Review Board, when discharging its function and mandate. Section 175(1) of the Public Procurement and Asset Disposal Act provides for judicial review by the High Court, of decisions of the Public Procurement Administrative Review Board; and section 175(4) of the Public Procurement and Asset Disposal Act provides for appeals, to the Court of Appeal, from decisions of the High Court, on the judicial review.
24. What then that means is that, upon the ex parte applicant herein being aggrieved, by the decision of 7th May 2026, to terminate the procurement proceedings, with relation to Tender No. KeNHA/2915/2025, it should have pursued its right to the remedy provided for under section 167(1), by seeking an administrative review with the Public Procurement Administrative Review Board, within 14 days, whether under Order 53 of the Civil Procedure Rules or the Fair Administrative Action Act. That approach would have availed it the right to seek judicial review, in terms of section 175(1), in the event it was dissatisfied with the decision of the Public Procurement Administrative Review Board, at the High Court, and a right of appeal to the Court of Appeal, in terms of section 175(4).
25. The Public Procurement and Asset Disposal Act, due to the nature of public procurements, sets very strict timelines for challenging decisions of a procuring entity, and of the Public Procurement Administrative Review Board and the High Court, and it also gives very strict timelines to the Public Procurement Administrative Review Board, the High Court and the Court of Appeal to determine the procurement matters placed before them. Those timelines cannot be circumvented by a party who chooses not to invoke section 167(1) of the Public Procurement and Asset Disposal Act. Such a party cannot possibly be entertained in proceedings initiated outside the said process, in terms of the process itself and the timelines.
26. The ex parte applicant is one such party. It chose not to invoke section 167(1) of the Public Procurement and Asset Disposal Act, by first moving to the Public Procurement Administrative Review Board, within 14 days of the making of the impugned decision, to challenge it, and, upon being dissatisfied with the decision of the Public Procurement Administrative Review Board, coming to the High Court, by way of challenging the decision of the Public Procurement Administrative Review Board through judicial review. It chose to ignore the dedicated mechanism prescribed in the Public Procurement and Asset Disposal Act, which was designed to avoid the normal court process. It did not exhaust that process, as required by Speaker of National Assembly vs. Karume [1992] KLR 425, and chose to come directly to the High Court, after expiration of the timelines given under section 167(1). Where there is no exhaustion of the process under section 167(1), the High Court would have no jurisdiction, and leave would not be available in the circumstances.
27. The ex parte applicant has placed a medical document on record, as proof that the deponent of the affidavit, Mr. Kulmia, was of ill-health, to explain the delay, between 7th May 2026, when the impugned decision was made, and 7th September 2026, when these proceedings were initiated. What I see is a radiology report, dated 21st June 2026, and a hand-drawn document dated 22nd June 2026. I am not qualified in matters relating to medical treatment, and I have no idea what these 2 documents are saying. In litigation, parties who desire to establish that a party was unwell, are required to file a medico-legal report, which is usually complete with explanations and narratives of the nature of the illness, prognosis, medication, hospitalisation, and the like. I see another letter from Minaret Hospital, it is addressed to who it may concern, and is dated 1st September 2026. It is not a medico-legal report. There is nothing to show that Mr. Kulmia had been incapacitated to the extent of being unable to attend to the affairs of the ex parte applicant. In any event, the ex parte applicant is a limited company. It has not been demonstrated that Mr. Kulmia is the only person who could act on its behalf.
28. Regardless of whether Mr. Kulmia was ill or not, the very strict timelines in the Public Procurement and Asset Disposal Act cannot be overridden on that account, particularly for proceedings brought under Order 53 of the Civil Procedure Rules. Perhaps the ex parte applicant has section 9(4) of the Fair Administrative Action Act in mind, which allows exemption from the application of the exhaustion principle, arguing that Mr. Kulmia was unwell, hence unable to take advantage of section 167(1) of the Public Procurement and Asset Disposal Act. Unfortunately, for the ex parte applicant, section 9(4) of the Fair Administrative Action Act only applies to proceedings founded on that Act. These proceedings are not, for they are based on Order 53 of the Civil Procedure Rules.
29. The issue raised by the respondents, with respect to the pendency of Nairobi HCCHRPET. No. E398 of 2026, would also be of relevance in considering whether or not to grant leave. I have perused the filings in Nairobi HCCHRPET. No. E398 of 2026, and noted that that matter turns on the same procurement processes that are sought to be addressed herein, relating to Tender No. KeNHA/2915/2025 and Tender No. KeNHA/2953/2026. I note, though, that Nairobi HCCHRPET. No. E398 of 2026 has more to do with Tender No. KeNHA/2953/2026, rather than Tender No. KeNHA/2915/2025, which is the foundation for the proceedings herein, but a positive decision in Nairobi HCCHRPET. No. E398 of 2026 would eternally seal the fate of any proceedings relating to Tender No. KeNHA/2915/2025. I would agree with the ex parte applicant, that the pendency of Nairobi HCCHRPET. No. E398 of 2026 may not be good ground to deny it leave, although it may be prudent to stay any proceedings herein, should leave be granted, pending hearing and determination of Nairobi HCCHRPET. No. E398 of 2026.
I. Disposition
30. In view of everything said above, particularly at paragraph 26, it is my finding and holding that a case has not been made out, for grant of the leave sought herein, and I hereby decline to grant it. The ex parte chamber summons, dated 3rd September 2026, is, accordingly, dismissed. It is so ordered.
DELIVERED, VIA CTS, DATED AND SIGNED IN CHAMBERS, AT MILIMANI, NAIROBI, ON THIS 18TH DAY OF SEPTEMBER 2026.
WM MUSYOKA
JUDGE
Mr. Abdirahman, Court Assistant.
Advocates
Mr. Khalif, instructed by AA Khalif Advocates LLP, for the ex parte applicant.
Mr. Lawrence Maruti, Advocate, for the respondents.
1. These proceedings were initiated by way of an ex parte chamber summons, dated 3rd September 2026, seeking leave to initiate judicial review proceedings, for 2 orders of certiorari and 1 of mandamus, with respect to termination of Tender No. KeNHA/2915/2025 for upgrading to bitumen standards of Masara-Muhuru Bay (B1) Road. It was also sought that leave, if granted, do operate as a stay of the decision to terminate the tender.
2. The matter was placed before me, on 7th September 2026, under certificate of urgency, and I gave directions, relating to service, filing of responses and written submissions, and I allocated a date for ruling, being 18th September 2026, on whether the leave and stay sought should be granted.
B. The Case by the Applicant
3. The factual background, as emerges from the statutory statement and the verifying affidavit, sworn by Mr. Mohamed Maalim Kulmia, both dated 3rd September 2026, is that the respondents had advertised the tender, Tender No. KeNHA/2915/2025 for upgrading to bitumen standards of Masara-Muhuru Bay (B1) Road, and the ex parte applicant placed a bid, which proved successful, for an award was made to it, vide a letter dated 28th January 2026. The ex parte applicant avers to have had complied with the post-award requirements of formally accepting the tender award, submission of a performance security and procuring an all-risk insurance cover. Despite that, the respondents refused to counter-sign the contract document, without assigning any reasons, and subsequently purported to terminate the procurement, vide a letter dated 7th May 2026, and proceeded to re-advertise the same works under Tender No. KeNHA/2953/2026. The deponent of the affidavit, Mr. Kulmia, explains that there was some delay in bringing the application, which he says was due to ill-health on his part.
4. Attached to the verifying affidavit are copies of a document authorising Mr. Kulmia to act on behalf of the ex parte applicant; medical records as proof that Mr. Kulmia had been unwell; the tender notice for Tender No. KeNHA/2915/2025; the notification of intention to award the tender to the ex parte applicant, dated 12th January 2026; the award of the tender to the ex parte applicant, dated 28th January 2026; the acceptance of the award, dated 30th January 2026; the performance security, dated 16th February 2026; the contractors all risks insurance policy, dated 19th March 2026; the termination of the tender letter, dated 7th May 2026; and the tender notice for Tender No. KeNHA/2953/2026.
C. The Response by the Respondents
5. The respondents have replied to the application, vide an affidavit sworn by Mr. Joseph Kimaru, on 10th September 2026. It is conceded that the tender, in Tender No. KeNHA/2915/2025, was awarded to the ex parte applicant, but issues were raised subsequently, relating to the ex parte applicant having relied on forged documents. The respondents allegedly conducted independent investigations or review of the allegations of forgery, and decided to terminate the award, and to re-advertise the tender for the said works, under Tender No. KeNHA/2953/2026. It is averred that the re-advertisement provoked litigation, by another party, in Nairobi HCCHRPET. No. E398 of 2026, over both tenders, that is Tender No. KeNHA/2915/2025 and Tender No. KeNHA/2953/2026, where the ex parte applicant is named as an interested party, and the said proceedings are pending judgement on 28th January 2027.
6. Copies of the correspondence on the alleged forgery, the pleadings and filings in Nairobi HCCHRPET. No. E398 of 2026, and the directions given in that cause, are attached to the affidavit, in support of the averments made.
D. The Rejoinder by the Applicant
7. The replying affidavit prompted the filing of a further affidavit by the ex parte applicant, sworn by Mr. Kulmia, on 14th September 2026. The ex parte applicant pleads ignorance to the alleged forgery, and the independent review allegedly carried out by the respondents, and avers that it was condemned unheard. It is asserted that no reasons were given in the termination letter of 7th May 2026. The pendency of constitutional petition, in Nairobi HCCHRPET. No. E398 of 2026, is conceded, but it is argued that the same does not affect the right of the ex parte applicant to mount judicial review proceedings.
E. The Written Submissions
8. The application for leave and stay was canvassed vide written submissions. The respondents were the first to file submissions, dated 11th September 2026, followed by the ex parte applicant, whose submissions are dated 14th September 2026.
9. The ex parte applicant addresses the issues of grant of leave and whether the same should operate as stay. It is submitted, relying on Republic vs. Asset Recovery Agency & another; Mwangi (Ex parte Applicant) [2026] KEHC 9369 (KLR), that an applicant only needs to establish an arguable case, for leave to be granted. It is submitted that such an arguable case exists herein, for section 63(1)(i) of the Public Procurement and Asset Disposal Act, Cap. 412C, Laws of Kenya, permits the procuring entity to terminate or cancel procurement proceedings only before notification of the award, and not after. It is averred that cancellation in this case happened after notification, hence it was not lawful. Republic vs. Public Procurement Administrative Review Board & 3 others; Astronea Construction Limited (Ex parte Applicant) [2024] KEHC 1429 (KLR) is cited in support.
10. On the alleged forgeries, and the investigations into them, it is submitted that the ex parte applicant was neither involved nor notified of them, hence the right to fair administrative action and the rules of natural justice were violated, and George Philip M. Wekulo vs. Law Society of Kenya & another [2005] KEHC 101 (KLR) is cited. On stay, it is urged that these proceedings would be rendered otiose, should the procurement proceedings, with respect to Tender No. KeNHA/2953/2026, be carried out to their logical conclusion, and Taib vs. Minister for Local Government & 3 others [2006] KEHC 3166 (KLR) is relied on.
11. The written submissions by the respondents turn on only 1 issue, and that is whether grant of leave should operate as a stay. It is submitted that the threshold for that has not been met. Giella vs. Cassman Brown & Co. Ltd [1973] EA 358, Mrao vs. First American Bank Kenya Limited & 2 others [2003] KLR 125, Sosplashed Limited & another vs. Pwani Maoni Limited & 3 others [2021] eKLR and Pius Kipchirchir Kogo vs. Frank Kimeli Tenai [2018] eKLR are cited.
F. The Issues for Determination
12. The first issue to determine is whether leave to bring judicial review proceedings should be granted in this case. The other issue is secondary, as to whether that grant of leave ought to operate as a stay of the procurement proceedings in Tender No. KeNHA/2953/2026, for whether the grant of leave should so operate as a stay is predicated on grant of leave in the first place. The ex parte applicant argues that the leave ought to be granted, and with it the stay. The respondents are non-committal on the matter of the grant of leave, in their written submissions, but assert that a proper case has not been made out for the order that the leave ought to operate as a stay. The facts deposed to in the replying affidavit point to a case being made that leave ought not be granted, for there is justification for the termination of the award, and the matter is sub judice, on account of the pendency of Nairobi HCCHRPET. No. E398 of 2026.
13. I pushed what ought to have been pure ex parte proceedings into inter partes hearing to give opportunity to the parties to address me on whether I would have jurisdiction to handle this matter at first instance, the dispute herein having emanated from public procurement proceedings. That would raise a jurisdiction question, which ought to be addressed first, in view of Owners of the Motor Vessel “Lillian S” vs. Caltex Oil (Kenya) Limited [1989] KLR 1 [1989] eKLR [1989] KECA 48 (KLR). None of the parties have addressed me on that, for both have chosen to jump first into the merits of the case.
G. The Applicable Law
14. The 2nd respondent herein, Kenya National Highways Authority, is a public entity, by dint of section 2 of the Public Procurement and Asset Disposal Act. It is a body corporate, established under section 3 of the Kenya Roads Act, Cap. 408, Laws of Kenya, which makes it a state corporation, within the meaning of section 2 of the State Corporations Act, Cap. 446, Laws of Kenya. All procurements and contracts management by State organs and public entities are subject to the provisions of the Public Procurement and Asset Disposal Act, and those undertaken by the 2nd respondent are no exception.
15. The proceedings, with relation to Tender No. KeNHA/2915/2025, were subject to the provisions of the Public Procurement and Asset Disposal Act. Invitation of tenders is governed by section 74, evaluation of tenders by section 80, successful tenders by section 86, notification of intention to enter into a contract by section 87, procurement for works by Part IX (sections 91 to 114), procurement contracts by Part XI (sections 134 to 154), and administrative review of procurement and disposal proceedings by Part XV (sections 167 to 175).
H. Analysis and Determination
16. At this stage, the court is not required to delve deep into the merits of the case, rather it is required to make a determination as to whether leave should be granted, based on a preliminary evaluation of the material presented. What that means is that a prima facie case should be established or presented, by the applicant, pointing to arguability of the substantive matter, should the leave be granted.
17. The case that the ex parte applicant presents is that an award of the tender in Tender No. KeNHA/2915/2025 had been made to it, but the contract itself was not executed, despite the ex parte applicant complying with the prerequisites preceding such execution. Instead of executing the contract, the respondents are accused of terminating the award, without giving any reasons. The ex parte applicant argues that that is adequate to establish that it has a prima facie case for mounting proceedings for the judicial review orders of certiorari and mandamus. It argues that there was no jurisdiction to terminate the award, in view of section 63(1)(i) of the Public Procurement and Asset Disposal Act.
18. The respondents assert that there was malfeasance on the part of the ex parte applicant, by way of relying on forged documents, to obtain award of the tender in Tender No. KeNHA/2915/2025, hence there is justification for the termination, and, in any case, the same matter is pending determination by another bench of the High Court in other proceedings.
19. The respondents invited tenders, for works, in Tender No. KeNHA/2915/2025. The ex parte applicant presented a bid, which was successful, and it was notified, under section 86 of the Public Procurement and Asset Disposal Act, of an intention to award the tender contract to it. It was required to comply with certain things, before entering into a procurement contract, in terms of section 135 of the Public Procurement and Asset Disposal Act. The ex parte applicant alleges that it got all the compliances, but the respondents purported to terminate or cancel the procurement proceedings, under section 63(1)(i) of the Public Procurement and Asset Disposal Act, before the contract was executed. It contends that the respondents could not possibly terminate the proceedings under that provision, for it had already been notified of the intention to enter into a contract. The respondents assert that there is justification for termination under that provision.
20. It is clear that the contract was yet to be executed, when the award was terminated, hence the procurement proceedings were still in progress. The termination or cancellation of the said proceedings, whether under section 63 or any other provision of the Public Procurement and Asset Disposal Act, still related to termination of a procurement process. Section 167 provides for what should happen, where a candidate or tenderer is aggrieved, on the basis of breach of a duty imposed on a procuring entity by the Act or the Regulations. The ex parte applicant alleges that the respondents refused to execute the contract, after they had notified it of an intention to enter into a contract, and after it had complied with all what they had required of it. It alleges risk of suffering, or loss, or damage, arising from the breach of duty to sign the contract, hence the assertion that leave be granted to quash the decision to terminate, and that the leave operate as a stay, to obviate fresh procurement proceedings being undertaken to its detriment.
21. Section 167(1) provides a remedy to such aggrieved party, they “may” seek administrative review of the decision, within 14 days. Section 167(1) is permissive. Section 167 should be read together with section 174, which provides that the right, under section 167(1), to administrative review, “is in addition to any other legal remedy a person may have.” That would mean that the relief under section 167(1) is not exclusive, the aggrieved party would be open to seek other remedies. It may opt not to seek administrative review, under section 167(1), and may move for other reliefs, either under the Constitution and the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, often referred to as the Mutunga Rules, or the Fair Administrative Action Act, Cap 7C, Laws of Kenya, and the Fair Administrative Action Rules, or the Civil Procedure Act, Cap. 21, Laws of Kenya, and the Civil Procedure Rules.
22. However, since the dispute resolution mechanism, provided for under Part XV of the Act, is alternative, and dedicated to a particular area of specialisation, a party seeking to approach the court directly, and, therefore, side-stepping that mechanism, must contend with the doctrines of avoidance and exhaustion, as stipulated in section 9(2)(3) of the Fair Administrative Action Act, and elaborated in such decisions as Speaker of National Assembly vs. Karume [1992] KLR 425.
23. The Public Procurement and Asset Disposal Act is the principal legislation, so far as governance of public procurements is concerned. Its preamble states that it was enacted “to give effect to Article 227 of the Constitution; to provide procedures for efficient public procurement and for assets disposal by public entities; and for connected purposes.” The Public Procurement and Asset Disposal Act provides a dedicated process for public procurement, as well as dedicated mechanisms, for dispute resolution, under Part XV of the Act. Section 27 of the Public Procurement and Asset Disposal Act establishes the Public Procurement Administrative Review Board, for the sole purpose set out in section 28, of “reviewing, hearing and determining tendering and asset disposal disputes.” Sections 167 to 174, of the Public Procurement and Asset Disposal Act, carry provisions on the procedures and powers of the Public Procurement Administrative Review Board, when discharging its function and mandate. Section 175(1) of the Public Procurement and Asset Disposal Act provides for judicial review by the High Court, of decisions of the Public Procurement Administrative Review Board; and section 175(4) of the Public Procurement and Asset Disposal Act provides for appeals, to the Court of Appeal, from decisions of the High Court, on the judicial review.
24. What then that means is that, upon the ex parte applicant herein being aggrieved, by the decision of 7th May 2026, to terminate the procurement proceedings, with relation to Tender No. KeNHA/2915/2025, it should have pursued its right to the remedy provided for under section 167(1), by seeking an administrative review with the Public Procurement Administrative Review Board, within 14 days, whether under Order 53 of the Civil Procedure Rules or the Fair Administrative Action Act. That approach would have availed it the right to seek judicial review, in terms of section 175(1), in the event it was dissatisfied with the decision of the Public Procurement Administrative Review Board, at the High Court, and a right of appeal to the Court of Appeal, in terms of section 175(4).
25. The Public Procurement and Asset Disposal Act, due to the nature of public procurements, sets very strict timelines for challenging decisions of a procuring entity, and of the Public Procurement Administrative Review Board and the High Court, and it also gives very strict timelines to the Public Procurement Administrative Review Board, the High Court and the Court of Appeal to determine the procurement matters placed before them. Those timelines cannot be circumvented by a party who chooses not to invoke section 167(1) of the Public Procurement and Asset Disposal Act. Such a party cannot possibly be entertained in proceedings initiated outside the said process, in terms of the process itself and the timelines.
26. The ex parte applicant is one such party. It chose not to invoke section 167(1) of the Public Procurement and Asset Disposal Act, by first moving to the Public Procurement Administrative Review Board, within 14 days of the making of the impugned decision, to challenge it, and, upon being dissatisfied with the decision of the Public Procurement Administrative Review Board, coming to the High Court, by way of challenging the decision of the Public Procurement Administrative Review Board through judicial review. It chose to ignore the dedicated mechanism prescribed in the Public Procurement and Asset Disposal Act, which was designed to avoid the normal court process. It did not exhaust that process, as required by Speaker of National Assembly vs. Karume [1992] KLR 425, and chose to come directly to the High Court, after expiration of the timelines given under section 167(1). Where there is no exhaustion of the process under section 167(1), the High Court would have no jurisdiction, and leave would not be available in the circumstances.
27. The ex parte applicant has placed a medical document on record, as proof that the deponent of the affidavit, Mr. Kulmia, was of ill-health, to explain the delay, between 7th May 2026, when the impugned decision was made, and 7th September 2026, when these proceedings were initiated. What I see is a radiology report, dated 21st June 2026, and a hand-drawn document dated 22nd June 2026. I am not qualified in matters relating to medical treatment, and I have no idea what these 2 documents are saying. In litigation, parties who desire to establish that a party was unwell, are required to file a medico-legal report, which is usually complete with explanations and narratives of the nature of the illness, prognosis, medication, hospitalisation, and the like. I see another letter from Minaret Hospital, it is addressed to who it may concern, and is dated 1st September 2026. It is not a medico-legal report. There is nothing to show that Mr. Kulmia had been incapacitated to the extent of being unable to attend to the affairs of the ex parte applicant. In any event, the ex parte applicant is a limited company. It has not been demonstrated that Mr. Kulmia is the only person who could act on its behalf.
28. Regardless of whether Mr. Kulmia was ill or not, the very strict timelines in the Public Procurement and Asset Disposal Act cannot be overridden on that account, particularly for proceedings brought under Order 53 of the Civil Procedure Rules. Perhaps the ex parte applicant has section 9(4) of the Fair Administrative Action Act in mind, which allows exemption from the application of the exhaustion principle, arguing that Mr. Kulmia was unwell, hence unable to take advantage of section 167(1) of the Public Procurement and Asset Disposal Act. Unfortunately, for the ex parte applicant, section 9(4) of the Fair Administrative Action Act only applies to proceedings founded on that Act. These proceedings are not, for they are based on Order 53 of the Civil Procedure Rules.
29. The issue raised by the respondents, with respect to the pendency of Nairobi HCCHRPET. No. E398 of 2026, would also be of relevance in considering whether or not to grant leave. I have perused the filings in Nairobi HCCHRPET. No. E398 of 2026, and noted that that matter turns on the same procurement processes that are sought to be addressed herein, relating to Tender No. KeNHA/2915/2025 and Tender No. KeNHA/2953/2026. I note, though, that Nairobi HCCHRPET. No. E398 of 2026 has more to do with Tender No. KeNHA/2953/2026, rather than Tender No. KeNHA/2915/2025, which is the foundation for the proceedings herein, but a positive decision in Nairobi HCCHRPET. No. E398 of 2026 would eternally seal the fate of any proceedings relating to Tender No. KeNHA/2915/2025. I would agree with the ex parte applicant, that the pendency of Nairobi HCCHRPET. No. E398 of 2026 may not be good ground to deny it leave, although it may be prudent to stay any proceedings herein, should leave be granted, pending hearing and determination of Nairobi HCCHRPET. No. E398 of 2026.
I. Disposition
30. In view of everything said above, particularly at paragraph 26, it is my finding and holding that a case has not been made out, for grant of the leave sought herein, and I hereby decline to grant it. The ex parte chamber summons, dated 3rd September 2026, is, accordingly, dismissed. It is so ordered.
DELIVERED, VIA CTS, DATED AND SIGNED IN CHAMBERS, AT MILIMANI, NAIROBI, ON THIS 18TH DAY OF SEPTEMBER 2026.
WM MUSYOKA
JUDGE
Mr. Abdirahman, Court Assistant.
Advocates
Mr. Khalif, instructed by AA Khalif Advocates LLP, for the ex parte applicant.
Mr. Lawrence Maruti, Advocate, for the respondents.