REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBIMILIMANI LAW COURTS
CONSTITUTIONAL & HUMAN RIGHT DIVISION
PETITION NO. E551 OF 2021
IN THE MATTER OF: ARTICLE 22 (1) (2) (b) (c), 23 (1) (3), 48, 50 (1),159 (2) (e), 165 (3) (a) (b) (6) & (7) AND 258 (1) (2) (b) (c) OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF: RULE 10 (1) (2) AND 11 OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES, 2013
AND
IN THE MATTER OF: SECTION 5, 13, 15 (3), 16, 20 AND 36 OF THE SUPPLIES PRACTITIONERS’ MANAGEMENT ACT, 2007
AND
IN THE MATTER OF: SECTION 5 (1) (g) OF THE UNIVERSITIES ACT, 2012
AND
IN THE MATTER OF: SECTION 8 (1) (k) OF THE KENYA NATIONAL QUALIFICATIONS FRAMEWORK ACT, 2014.
AND
IN THE MATTER OF: SECTION 2 (1) AND 47 (1) OF THE PUBLIC PROCUREMENT AND ASSET DISPOSAL ACT, 2015
AND
IN THE MATTER OF: REGISTERED AND LICENSED SUPPLIES PRACTITIONERS
AND
IN THE MATTER OF: THE ALLEGED CONTRAVENTION OF ARTICLE 1 (1) (2), 3 (1), 10 (1) (2) (a) (c), 27 (1), 35 (1) (b) (2), 36 (1), 46 (1) (3), 47 (1) (2) AND 232 (1) (a) (c) (e) (f) OF THE CONSTITUTION OF KENYA, 2010
-BETWEEN-
MWANIKI GACHUBA .……………………………………… PETITIONER
-VERSUS-
KENYA INSTITUTE OF
SUPPLIES MANAGEMENT …………………………… 1 ST RESPONDENT
KENYA INSTITUTE OF SUPPLIES
EXAMINATIONS BOARD ...…………….…………….. 2 ND RESPONDENT
CABINET SECRETARY, NATIONAL
TREASURY & PLANNING ……………………………. 3 RD RESPONDENT
JUDGMENT
The parties
1. The Petitioner is Mr. Mwaniki Gachuba presents the Petition on his own behalf, on behalf of all members of the 1 st Respondent and in public interest, the Kenya Institute of Supplies Management.
2. The 1 st Respondent Kenya Institute of Supplies Management is a body corporate established under Section 3 of the Supplies Practitioners Management Act, 2007.
3. The 2 nd Respondent, Kenya Institute of Supplies Examinations Board is a body corporate established under Section 12 of the Supplies Practitioners Management Act, 2007.
4. The 3 rd Respondent is the Cabinet Secretary, Ministry of Finance & National Treasury of National Treasury & Planning.
5. Summative, the Petitioner’s claim is that the professional, regulatory and training structures of the supply chain management sector in Kenya are chaotic, uncoordinated and constitutionally invalid.
6. The Respondents oppose the Petition in its entirety and contend that the modern regulatory framework is robust, actively operationalized and that the Petition represents a highly personalized grievance disguised as a public interest suit, designed to circumvent ongoing administrative reform processes.
The Petition
7. The amended Petition is dated 31 st December 2021 and is anchored on the grounds on the face thereof, supported by the Petitioner’s affidavit sworn on even date. The Petitioner seeks the following reliefs:
(1 Declaration that the Respondents abrogated the rule of law and fair administrative action under Article 10 (2) (a) and 47(1) of the Constitution of Kenya, 2010 by failing to perform their respective functions particularized under Section 5, 13, 15(3), 16 and 36 of the Supplies Practitioners Management Act, 2007.
(2 Declaration that Diplomas awarded by the Chartered Institute of Purchasing and Supply of UK or any other foreign institution are academic qualifications and registration and licensing based on such qualification alone is invalid.
(3 Declaration Diplomas awarded by the Chartered Institute of Purchasing and Supply of UK or any other foreign institution require recognition and equation by the Commission for University Education before they are admitted in Kenya.
(4 Declaration that any registration and licensing of members by the 1 st Respondents based on Diplomas awarded by the Chartered Institute of Purchasing and Supply of UK or any other foreign institutions or universities without recognition and equation by the Commission for University Education is unlawful and invalid.
(5 Declaration that the registration and licensing of members based on academic qualifications only is invalid.
(6 Declaration that the Certified Procurement and Supply Professionals of Kenya (CPSP-K) and Associate in Procurement and Supply of Kenya (APS-K) training courses and examinations conducted by the 2 nd Respondent and the certificates issued thereof are unlawful and invalid.
(7 Declaration that the registration and licensing of members without ascertaining the genuineness of their academic qualifications, moral fitness and technical capacity is unlawful and invalid.
(8 Declaration that the registration and licensing of supplies practitioners is inconsistent with Section 13 (1) and 16 of the Supplies Practitioner Management Act, 2007 and Section 2(1) and 47 (1) of the Public Procurement and Asset Disposal Act, 2015 and is therefore invalid.
(9 Declaration that the List of Procurement Members and the List of Procurement Licensed Practitioners issued by the 1 st Respondent are unlawful and invalid.
(10 Declaration that all Certificates of Registration and all Practice Licences issued by the 1 st Respondent are invalid and set aside.
(11 Declaration that Gazette Notice No. 14138 dated 24 th December 2021 is invalid.
(12 An order of judicial review to quash the List of Procurement Members as at 30 th September 2021; the Updated List of Procurement Licensed Practitioners as at 30 th September 2021 and the Gazette Notice No. 14138 dated 24 th December 2021.
(13 An order of judicial review to prohibit the 1st Respondent and or its Registration Committee from receiving any registration and licensing applications and fees thereof, considering, approving, registering and licensing supplies practitioners until the enabling regulations are made by the 3 rd Respondent.
(14 An order of judicial review to compel the 3rd Respondent to initiate the process of making all the regulations required under the Supplies Practitioners Management Act, 2007 within three months.
(15 An order of judicial review to prohibit the 2 nd Respondent from admitting any students, conducting training courses, examinations, issuing certificates and collecting fees until the enabling advisories and regulations provided for under the Supplies Practitioners Management Act, 2007 are made by the 1 st and 2 nd Respondents.
(16 The Respondents, jointly and severally, compensate the Petitioner for breach of his rights to the benefit of the law, information, participate in the affairs of the 1 st and 2 nd Respondents, consumer rights and fair administrative action.
(17 The Petitioner shall have the costs of the Petition plus interest until paid in full.
8. The Petitioner alleges a wholesale failure by the Respondents to perform their statutory functions under the Supplies Practitioners Management Act, 2007. He asserts that under the Act, the 1 st Respondent (KISM) and its Registration Committee are mandated to establish professional standards, process registrations and issue practicing licenses, while the 2 nd Respondent (KISEB) is responsible for regulating syllabuses and conducting professional certification examinations. He avers that to support these bodies, the 3 rd Respondent, the Cabinet Secretary for National Treasury and Planning is legally required under Section 36 of the Act to formulate enabling regulations governing training, fees and licensing conditions.
9. However, the Petitioner alleges that the implementation of the Act was initially paralyzed by an Interim Council that illegally remained in office for years and that the current Council has spent two years failing to operationalize the Act, choosing instead, to prioritize election regulations and a new Bill, while actively ignoring the Petitioner’s motions to kickstart the regulatory process.
10. The Petitioner asserts that as a result of this regulatory vacuum, the ongoing operations of the Respondents are unlawful, unprocedural and contrary to public policy. Specifically, the petitioner claims that the 2 nd Respondent is running un-accredited, purely academic CPSP-K and APS-K courses without public participation, while the Registration Committee is said to be illegally registering ineligible students, associate members and corporate firms.
11. The Petitioner further contends that the existing registrations and licenses are treated as invalid because they rely entirely on academic qualifications such as un-equated foreign credentials from the United Kingdom without KISM conducting any due diligence or verification to weed out potential fraudsters. That this lacks compliance with the Public Procurement and Asset Disposal Act, 2015, which dictates that public sector procurement professionals must undergo both formal academic and professional training, including practical learning through apprenticeship or tutelage under an experienced practitioner, a threshold that no current member satisfies.
12. The Petitioner consequently alleges violations of multiple constitutional provisions, including Article 10 on national values and the rule of law, Article 35 on the right to information, Article 46 or the consumer rights, Article 47 of the fair administrative action, and Article 232 on values of public service.
13. The Petitioner avers in the grounds of the Petition and his supporting affidavit that an Interim Council illegally stayed in office until 10 th January 2020, effectively suspending the implementation of the Supplies Practitioners Management Act, 2007 (hereinafter, “the Act”). That the current Council has spent two years in office without operationalizing the Supplies Practitioner Management Act, leaving it in abeyance and denying him and other members the benefits and protection of the law.
14. It is averred that the 3 rd Respondent has failed to issue critical regulations under Section 36 of the Act governing training, examinations, fees and licensing conditions. Instead, KISM has prioritized council election regulations and the drafting of a new Bill.
15. The Petitioner alleges illegal training and examinations stating that KISEB purports to run the CPSP-K and APS-K courses and collects fees without a regulatory framework, public participation, or accreditation from the Ministry of Education. The Petitioner argues that these are purely academic rather than technically professional courses and that standards of proficiency to be gained are unknown to him and other members of the 1 st Respondent.
16. He deposes that the KISM Registration Committee is illegally registering ineligible "Associate" and "Student" members, as well as licensing nine corporate firms. That the purported training courses and examinations were not subjected to members and public participation. Further, the Petitioner avers that registrations including his own are invalid because they rely solely on academic qualifications, such as those from the Chartered Institute of Purchasing and Supply (CIPS-UK), which have not been formally recognized or equated by the Commission for University Education (CUE) or the Kenya National Qualifications Authority (KNQA).
17. The Petitioner emphasizes that Section 47(1) and Section 2(1) of the Public Procurement and Asset Disposal Act, 2015 require public sector procurement professionals to hold recognized professional qualifications that include practical learning, apprenticeship, or tutelage. He states that neither he nor any other member satisfies this definition because KISM and KISEB do not provide or regulate practical tutelage. That accordingly, KISM has no verification mechanism, thereby creating a risk of admitting unqualified individuals or fraudsters.
18. It is contended that in the absence of regulations, the Chairmen of the KISM Council and the Registration Committee have bypassed corporate governance principles by signing practice licenses themselves and that in doing so, they have usurp the executive roles of the Registrar and Chief Executive Officer of the 1 st Respondent. He claims that therefore, the licensing of members is unprocedural, unlawful and irrational and creates public anxiety in view of the pervading fraud and corruption that has hamstrung supply chain management in Kenya.
19. The Petitioner contends that he requested the 3 rd Respondent to make regulations pursuant to Section 36 of the Act , which they undertook to do but are yet to make regulations. further, that KISM refused to provide him with the information used as the basis for the 2021 member registrations and licenses despite giving an explanation for the reasons for this information through a letter dated 29 th July 2021 which went un-responded to.
20. He deposes that KISM’s lack of due diligence, absence of verification mechanisms and irregular licensing of corporate entities have compromised the integrity of the profession, created public anxiety and provided succour and comfort to quacks and morally unfit persons to infiltrate supplies practice with the disastrous result of incompetence and unbridled corruption.
21. The Petitioner asserts that he has completely exhausted all administrative and internal avenues to correct these statutory lapses, leaving him with no other option but to seek the intervention of the High Court.
Responses
22. The 1 st Respondent Kenya Institute of Supplies Management—KISM filed a lengthy elaborate replying affidavit dated 2 nd March 2022 urging this Court to dismiss the Petition with costs on several grounds. It contends that the Petition is not filed in the public interest or on behalf of KISM members but instead, is characterized as a bad-faith, premature action driven by a disgruntled, embittered member whose legal advisory services and committee roles were terminated by the KISM Council due to his egotism and high-handedness.
23. The 1 st Respondent posits that this Petition has been presented and/or filed prematurely and in bad faith and is purely about the Petitioner attempting to bungle and mangle the profession of thousands of Procurement and Supply Chain practitioners to satisfy his unregulated ego. It is contended that the Petitioner filed the petition barely a month after receiving written assurances from the Cabinet Secretary for the National Treasury that consultations regarding the drafting of regulations were actively ongoing.
24. The 1 st Respondent asserts that the Petitioner relies on blanket, vague and rhetorical declarations without pleading specific constitutional violations or providing proof of any fraudulent or unprocedural member registrations.
25. It is asserted that the current KISM Council was elected in January 2020 as the first substantive Council since the 2007 Act. That despite losing months of active operations to the COVID-19 pandemic shortly after taking office, the Council immediately began implementing the Act. That the Council advertised for and fully constituted the Registration, Disciplinary, Legislation and Examination Board committees by mid-2020.
26. It is asserted that the foundational purpose of the Supplies Practitioners Management Act, 2007 is to provide a robust framework for the training, registration and licensing of supplies practitioners, as well as to regulate their professional practice. That following the election of the current Council of the 1 st Respondent on 10 th January 2020, and its subsequent gazettement on 21 st February 2020, the body immediately commenced implementing the Act as the first substantive Council since the enactment of the legislation.
27. The 1 st respondent states that within a week of gazettement, the Council aggressively pursued its mandate by advertising for expressions of interest to seat critical statutory organs, including the Registration and Disciplinary Committees, alongside several co-opted panels like the Legislation Committee and that by March 2020, the Council expanded its efforts to establish the Kenya Institute of Supplies Examination Board, the 2 nd Respondent herein, successfully appointing members to these various committees and fully constituting the Board by July 2020 after consulting with the Office of the Attorney General and securing nominations from diverse statutory bodies.
28. It is further asserted that concurrently, the Council sought legal guidance from the Solicitor General to navigate its dual mandate as both a regulatory body and a welfare institution. That acting on the 15 th April 2020 advisory from the Attorney General highlighting legislative gaps, KISM prioritized a comprehensive statutory overhaul to align the pre-2010 Act with the Constitution.
29. the 1 st respondent avers that in the final quarter of 2020, KISM’s Legislative Committee, into which the Petitioner was co-opted as a key legal advisor, formed a Taskforce to review the Act and its enabling regulation.
30. It is stated that this initiative was further formalised in April 2021 when the National Treasury nominated Ministry officials to the review task force, culminating in the submission of the Draft Supply Chain Management Professionals Bill, 2021 and the Draft Council Elections Regulations, 2021 to the Cabinet Secretary on 1 st August 2021.
31. That following a robust public participation phase in December 2021, these drafts were submitted to the State Law Office and the National Assembly for ongoing review, legally demonstrating that the 1 st Respondent actively and extensively operationalized the Act despite losing critical months to the COVID-19 pandemic.
32. KISM denies that a regulatory vacuum exists. It asserts that key regulations promulgated in 2015 specifically governing Examinations, Registration and Licensing, Discipline and Elections remain active and operational. further, that acting on an advisory from the Attorney General to align the pre-2010 Act with the Constitution, KISM partnered with the National Treasury to draft the Supply Chain Management Professionals Bill, 2021 and new Council Election Regulations aimed at decentralizing voting via online systems and devolving representation of members in the council. That both drafts underwent public participation in late 2021 as demonstrated in annexture “KISM-41” which is a copy of the communication of the members of the 1 st Respondent.
33. KISM denies that the Chairman frustrated the Petitioner’s Notice of Motion at the 30 th April 2021 AGM, noting that the issues raised primarily concerned making regulations that were already being handled by the Legislation Committee, which the Petitioner was a member of. It is Further contended that the Petitioner did not actually attend the AGM demonstrating that the Petition has been brought in bad faith.
34. KISM defends the Certified Procurement and Supply Professional of Kenya (CPSP-K) and Associate Procurement and Supply of Kenya (APS-K) courses administered by the 2 nd Respondent (KISEB), stating that they were formulated by a highly qualified 11-member professional board, subjected to public participation and formally accredited by the Kenya National Qualifications Authority (KNQA). It is stated that the Petitioner has no capacity or mandate to prescribe the curriculum and examination of the 2 nd Respondent as he is not its board member.
35. KISM refutes the claim that the courses lack practical training, pointing to an established 12-week Industry Based Learning (IBL) Policy prepared by the 2 nd Respondent in consultation with the 1 st Respondent.
36. It also maintains that the Council holds the discretion to waive this for practitioners with vast field experience. That the Petitioner cannot police the Council of the 1 st Respondent and the Board of the 2 nd Respondent and dictate to them what kinds of contents he deems as professional training and professional examinations and what kinds of contents in the training or examinations that he feels are non-professional.
37. It is asserted that Prescription of training and examination is a mandate that is given to the Board of the 2 nd Respondent and the Council of the 1 st Respondent. That the Petitioner may only suggest areas in the syllabus where he feels should be amended, or expunged or included and persuade the Board to amend, expunge or include his suggestions in the syllabus.
38. KISM affirms that Section 16 of the Act permits the Council to recognize and register individuals holding local or foreign qualifications such as those from the Chartered Institute of Procurement and Supply—CIPS deemed equivalent to KISEB certifications. KISM points out that the Petitioner himself is a primary beneficiary of this provision, having been registered and employed for years using CIPS qualifications without a KISEB certificate.
39. KISM maintains that the Universities Act, 2012 applies strictly to academic programs and does not supersede KISM’s statutory mandate to register professional supplies practitioners. It is asserted at paragraph 89 of the Response that professional certification does not mandatorily require a university degree as long as the individual attained a C+ overall grade in their Kenya Certificate of Secondary Education (KCSE).
40. The 1 st Respondent rejects the Petitioner’s assertion that there is no single qualified person or member of the 1 st Respondent to be a qualified procurement professional and KISM asserts that registration of Associate and Student members is justified as a lawful transitional mentoring mechanism under the Act.
41. Additionally, that the licensing of corporate firms is explicitly permitted under Section 20(2) of the Act and the 2015 Regulations .
42. KISM asserts that the signing of licenses by the Council and Registration Committee Chairmen is a proper administrative exercise under the Common Seal of the Institute and that application forms mandatorily require certified documents and background checks.
43. It also stated that the Public Procurement and Asset Disposal Act is a purely procedural law governing public sector procurement methods and is subservient to the Supplies Practitioners Management Act, 2007 regarding who qualifies as a procurement professional, with KISM’s membership cutting across public, private and NGO sectors.
44. The 1 st Respondent points out to the Court that the Petitioner has also filed a case in the Employment and Labour Relations Court at Nairobi Case No. ELRCPET/E 4/2022 , challenging and praying for nullification of the appointment of the Board of the 2 nd Respondent by the 1 st Respondent, with some of his key averments being that the Members of the Board of the 2 nd Respondent who were appointed by the 1 st Respondent pursuant to Section 12 (2) (a)of the Supplies Practitioners Management Act , are not qualified supplies practitioners as they were registered and licensed by the 1 st Respondent without being examined by the 2 nd Respondent.
45. That the Petitioner claims in the said petition that the said members of the Board are not qualified supplies practitioners as their academic qualifications, professional qualifications, moral fitness, registration and licensing cannot be vouched in the absence of the regulations required under Section 36 of the Supplies Practitioners Management Act, 2007 .
46. It is the 1 st Respondent’s further case that the Petitioner has not demonstrated a single set of facts or incident where the 1 st Respondent violated any Article of the Constitution, or any section of the Supplies Practitioners Management Act, 2007 or any other laws, regulations or policies nor violated any of the Petitioner’s rights.
47. It is also affirmed that the Petitioner has not established any cause of action against the 1 st Respondent and that his intention of dragging the Respondents to Court through this petition is an attempt to disrupt the operations of the 1 st Respondent, to ruin their reputation and create havoc between them and their members, simply for his own selfish, self-serving gains.
48. Finally, it is the 1 st Respondent’s contention that this Petition has been brought prematurely and in bad faith because the Petitioner is simply attempting to attack the Council of the 1 st Respondent after the Council disagreed with him on how he was handling various issues pertaining to the operations of the Institute, which prompted the 1 st Respondent to progressively discontinue the Petitioner’s services both as a Legal Advisor and as a co-opted and/or invited member of their Legislative Committee.
49. Equally opposing the Petition, the 2 nd Respondent , filed a replying affidavit sworn on 19 th March 2022 in which it is explained that it operates under the statutory framework of the Supplies Practitioners Management Act and acts on regular policy and standards advice from KISM per Section 5(d) of the Act as demonstrated by the Advisory issued on 28 th May 2020 from the 1 st Respondent to establish curricula, examination calendars, rules and certification policies.
50. KISEB systematically details how it fulfills its explicit statutory duties regarding professional certification specifically the Certified Procurement and Supply Professional of Kenya [CPSP-K] and Associate in Procurement and Supply of Kenya [APS-K]. It states that it prepares standard operating procedures, examination rules and syllabuses incorporating mandatory Industry-Based Learning (IBL) to realign skills with industry needs; and it structures budgets to remit at least 30% of examination fees back to KISM to support professional development, satisfying Section 13 (h) of Act .
51. The 2 nd respondent asserts that its certifications are recognized globally via affiliations with the International Federation of Purchasing and Supply Management (IFPSM).
52. It states that Section 13 of the Act does not explicitly or implicitly mandate public participation for its operations. However, it still holds stakeholder workshops for curriculum development such as the validation workshop of 28 th February, 2020. The 2 nd Respondent maintains that under Regulation 10 (1), the Board determines examination fees based strictly on operational expenses, with no legal obligation to subject these fee structures to public participation.
53. The 2 nd Respondent states that the alleged violations under Section 15(3) and Section 16 regarding professional registration are misdirected, as registration is purely a function of KISM’s Council, not KISEB. It asserts that it is not a university and therefore does not fall under the statutory jurisdiction of the Universities Act, 2012.
54. KISEB also contends that it has been formally accredited by the Kenya National Qualifications Authority (KNQA) as a National Qualification Awarding Institution in the TVET sector Certificate Serial No. KNQA/QAI/8/2021, valid from 11 th March 2021 to 11 th March 2025. That owing to this state of accreditation, KISEB maintains full legal authority to evaluate, recognize and equate foreign supply chain qualifications such as CIPS-UK or CILT-UK). Consequently, members holding equated certificates are recognized as bona fide .
55. KISEB denies violating the Constitution, stating that its strict administrative protocols adhere to Article 10 of the Constitution on National Values and Principles of Governance and Article 47 on the Right to Fair Administrative Action .
56. Accordingly, the 2 nd Respondent urges the Court to dismiss the Petition, stating that it has comprehensively executed its legal mandate, maintained proper separation of powers and acted fairly and judiciously within its statutory bounds.
57. The 3 rd Respondent filed Grounds of Opposition dated 2 nd March 2022 opposing the Petition on the following grounds:
(1) THAT the amended Petition has failed to raise any constitutional questions for determination by the Court.
(2) THAT the Petition herein lacks the requisite specificity in drafting as required by the provision of the law and as outlined by the Court in the Mumo Matemu case.
(3) THAT the amended Petition has misapprehended the roles of the 3 rd Respondent with regard to the making of the Regulations herein.
(4) THAT the nature of the orders sought by the Petitioner are in violation of the principle of separation of powers.
(5) THAT the Petition herein is premised on conjecture and the Petitioner has failed to provide any evidence of the allegations herein.
(6) THAT the Petitioner lacks the appropriate qualifications to make the allegations within the Petition herein.
58. The 3 rd Respondent also filed a Replying Affidavit sworn by Dr. Julius Muia, the Principal Secretary of the National Treasury on 23 rd March 2022 in which the 3 rd Respondent firmly refutes the Petitioner’s claim that there is a regulatory vacuum by detailing a comprehensive suite of active regulations. He notes that Regulations 3 to 38 of the Supplies Practitioners Management (Registration & Licensing) Regulations, 2015 were officially promulgated on 31 st December, 2015, via Legal Notice No. 259, that govern professional training, conditions for member registration, standards of practice and requisite fees; and the Examinations Regulations, Legal Notice No. 258, which establish curricula, academic records, exemptions and institutional accreditations and the Disciplinary & Elections Regulations Legal Notices No. 246 and 247. That all these provide the necessary frameworks for professional oversight and democratic council transitions.
59. It is averred that the Kenya Institute of Supplies Examinations Board (KISEB) was successfully operationalized in June 2020 through a transparent, fair and constitutionally sound recruitment process. That under its statutory mandate, KISEB collaborated with Kenya Accountants and Secretaries National Examinations Board (KASNEB) and the Kenya Institute of Curriculum Development (KICD) to roll out a pioneer Supply Chain curriculum
[...truncated]
IN THE HIGH COURT OF KENYA AT NAIROBIMILIMANI LAW COURTS
CONSTITUTIONAL & HUMAN RIGHT DIVISION
PETITION NO. E551 OF 2021
IN THE MATTER OF: ARTICLE 22 (1) (2) (b) (c), 23 (1) (3), 48, 50 (1),159 (2) (e), 165 (3) (a) (b) (6) & (7) AND 258 (1) (2) (b) (c) OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF: RULE 10 (1) (2) AND 11 OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES, 2013
AND
IN THE MATTER OF: SECTION 5, 13, 15 (3), 16, 20 AND 36 OF THE SUPPLIES PRACTITIONERS’ MANAGEMENT ACT, 2007
AND
IN THE MATTER OF: SECTION 5 (1) (g) OF THE UNIVERSITIES ACT, 2012
AND
IN THE MATTER OF: SECTION 8 (1) (k) OF THE KENYA NATIONAL QUALIFICATIONS FRAMEWORK ACT, 2014.
AND
IN THE MATTER OF: SECTION 2 (1) AND 47 (1) OF THE PUBLIC PROCUREMENT AND ASSET DISPOSAL ACT, 2015
AND
IN THE MATTER OF: REGISTERED AND LICENSED SUPPLIES PRACTITIONERS
AND
IN THE MATTER OF: THE ALLEGED CONTRAVENTION OF ARTICLE 1 (1) (2), 3 (1), 10 (1) (2) (a) (c), 27 (1), 35 (1) (b) (2), 36 (1), 46 (1) (3), 47 (1) (2) AND 232 (1) (a) (c) (e) (f) OF THE CONSTITUTION OF KENYA, 2010
-BETWEEN-
MWANIKI GACHUBA .……………………………………… PETITIONER
-VERSUS-
KENYA INSTITUTE OF
SUPPLIES MANAGEMENT …………………………… 1 ST RESPONDENT
KENYA INSTITUTE OF SUPPLIES
EXAMINATIONS BOARD ...…………….…………….. 2 ND RESPONDENT
CABINET SECRETARY, NATIONAL
TREASURY & PLANNING ……………………………. 3 RD RESPONDENT
JUDGMENT
The parties
1. The Petitioner is Mr. Mwaniki Gachuba presents the Petition on his own behalf, on behalf of all members of the 1 st Respondent and in public interest, the Kenya Institute of Supplies Management.
2. The 1 st Respondent Kenya Institute of Supplies Management is a body corporate established under Section 3 of the Supplies Practitioners Management Act, 2007.
3. The 2 nd Respondent, Kenya Institute of Supplies Examinations Board is a body corporate established under Section 12 of the Supplies Practitioners Management Act, 2007.
4. The 3 rd Respondent is the Cabinet Secretary, Ministry of Finance & National Treasury of National Treasury & Planning.
5. Summative, the Petitioner’s claim is that the professional, regulatory and training structures of the supply chain management sector in Kenya are chaotic, uncoordinated and constitutionally invalid.
6. The Respondents oppose the Petition in its entirety and contend that the modern regulatory framework is robust, actively operationalized and that the Petition represents a highly personalized grievance disguised as a public interest suit, designed to circumvent ongoing administrative reform processes.
The Petition
7. The amended Petition is dated 31 st December 2021 and is anchored on the grounds on the face thereof, supported by the Petitioner’s affidavit sworn on even date. The Petitioner seeks the following reliefs:
(1 Declaration that the Respondents abrogated the rule of law and fair administrative action under Article 10 (2) (a) and 47(1) of the Constitution of Kenya, 2010 by failing to perform their respective functions particularized under Section 5, 13, 15(3), 16 and 36 of the Supplies Practitioners Management Act, 2007.
(2 Declaration that Diplomas awarded by the Chartered Institute of Purchasing and Supply of UK or any other foreign institution are academic qualifications and registration and licensing based on such qualification alone is invalid.
(3 Declaration Diplomas awarded by the Chartered Institute of Purchasing and Supply of UK or any other foreign institution require recognition and equation by the Commission for University Education before they are admitted in Kenya.
(4 Declaration that any registration and licensing of members by the 1 st Respondents based on Diplomas awarded by the Chartered Institute of Purchasing and Supply of UK or any other foreign institutions or universities without recognition and equation by the Commission for University Education is unlawful and invalid.
(5 Declaration that the registration and licensing of members based on academic qualifications only is invalid.
(6 Declaration that the Certified Procurement and Supply Professionals of Kenya (CPSP-K) and Associate in Procurement and Supply of Kenya (APS-K) training courses and examinations conducted by the 2 nd Respondent and the certificates issued thereof are unlawful and invalid.
(7 Declaration that the registration and licensing of members without ascertaining the genuineness of their academic qualifications, moral fitness and technical capacity is unlawful and invalid.
(8 Declaration that the registration and licensing of supplies practitioners is inconsistent with Section 13 (1) and 16 of the Supplies Practitioner Management Act, 2007 and Section 2(1) and 47 (1) of the Public Procurement and Asset Disposal Act, 2015 and is therefore invalid.
(9 Declaration that the List of Procurement Members and the List of Procurement Licensed Practitioners issued by the 1 st Respondent are unlawful and invalid.
(10 Declaration that all Certificates of Registration and all Practice Licences issued by the 1 st Respondent are invalid and set aside.
(11 Declaration that Gazette Notice No. 14138 dated 24 th December 2021 is invalid.
(12 An order of judicial review to quash the List of Procurement Members as at 30 th September 2021; the Updated List of Procurement Licensed Practitioners as at 30 th September 2021 and the Gazette Notice No. 14138 dated 24 th December 2021.
(13 An order of judicial review to prohibit the 1st Respondent and or its Registration Committee from receiving any registration and licensing applications and fees thereof, considering, approving, registering and licensing supplies practitioners until the enabling regulations are made by the 3 rd Respondent.
(14 An order of judicial review to compel the 3rd Respondent to initiate the process of making all the regulations required under the Supplies Practitioners Management Act, 2007 within three months.
(15 An order of judicial review to prohibit the 2 nd Respondent from admitting any students, conducting training courses, examinations, issuing certificates and collecting fees until the enabling advisories and regulations provided for under the Supplies Practitioners Management Act, 2007 are made by the 1 st and 2 nd Respondents.
(16 The Respondents, jointly and severally, compensate the Petitioner for breach of his rights to the benefit of the law, information, participate in the affairs of the 1 st and 2 nd Respondents, consumer rights and fair administrative action.
(17 The Petitioner shall have the costs of the Petition plus interest until paid in full.
8. The Petitioner alleges a wholesale failure by the Respondents to perform their statutory functions under the Supplies Practitioners Management Act, 2007. He asserts that under the Act, the 1 st Respondent (KISM) and its Registration Committee are mandated to establish professional standards, process registrations and issue practicing licenses, while the 2 nd Respondent (KISEB) is responsible for regulating syllabuses and conducting professional certification examinations. He avers that to support these bodies, the 3 rd Respondent, the Cabinet Secretary for National Treasury and Planning is legally required under Section 36 of the Act to formulate enabling regulations governing training, fees and licensing conditions.
9. However, the Petitioner alleges that the implementation of the Act was initially paralyzed by an Interim Council that illegally remained in office for years and that the current Council has spent two years failing to operationalize the Act, choosing instead, to prioritize election regulations and a new Bill, while actively ignoring the Petitioner’s motions to kickstart the regulatory process.
10. The Petitioner asserts that as a result of this regulatory vacuum, the ongoing operations of the Respondents are unlawful, unprocedural and contrary to public policy. Specifically, the petitioner claims that the 2 nd Respondent is running un-accredited, purely academic CPSP-K and APS-K courses without public participation, while the Registration Committee is said to be illegally registering ineligible students, associate members and corporate firms.
11. The Petitioner further contends that the existing registrations and licenses are treated as invalid because they rely entirely on academic qualifications such as un-equated foreign credentials from the United Kingdom without KISM conducting any due diligence or verification to weed out potential fraudsters. That this lacks compliance with the Public Procurement and Asset Disposal Act, 2015, which dictates that public sector procurement professionals must undergo both formal academic and professional training, including practical learning through apprenticeship or tutelage under an experienced practitioner, a threshold that no current member satisfies.
12. The Petitioner consequently alleges violations of multiple constitutional provisions, including Article 10 on national values and the rule of law, Article 35 on the right to information, Article 46 or the consumer rights, Article 47 of the fair administrative action, and Article 232 on values of public service.
13. The Petitioner avers in the grounds of the Petition and his supporting affidavit that an Interim Council illegally stayed in office until 10 th January 2020, effectively suspending the implementation of the Supplies Practitioners Management Act, 2007 (hereinafter, “the Act”). That the current Council has spent two years in office without operationalizing the Supplies Practitioner Management Act, leaving it in abeyance and denying him and other members the benefits and protection of the law.
14. It is averred that the 3 rd Respondent has failed to issue critical regulations under Section 36 of the Act governing training, examinations, fees and licensing conditions. Instead, KISM has prioritized council election regulations and the drafting of a new Bill.
15. The Petitioner alleges illegal training and examinations stating that KISEB purports to run the CPSP-K and APS-K courses and collects fees without a regulatory framework, public participation, or accreditation from the Ministry of Education. The Petitioner argues that these are purely academic rather than technically professional courses and that standards of proficiency to be gained are unknown to him and other members of the 1 st Respondent.
16. He deposes that the KISM Registration Committee is illegally registering ineligible "Associate" and "Student" members, as well as licensing nine corporate firms. That the purported training courses and examinations were not subjected to members and public participation. Further, the Petitioner avers that registrations including his own are invalid because they rely solely on academic qualifications, such as those from the Chartered Institute of Purchasing and Supply (CIPS-UK), which have not been formally recognized or equated by the Commission for University Education (CUE) or the Kenya National Qualifications Authority (KNQA).
17. The Petitioner emphasizes that Section 47(1) and Section 2(1) of the Public Procurement and Asset Disposal Act, 2015 require public sector procurement professionals to hold recognized professional qualifications that include practical learning, apprenticeship, or tutelage. He states that neither he nor any other member satisfies this definition because KISM and KISEB do not provide or regulate practical tutelage. That accordingly, KISM has no verification mechanism, thereby creating a risk of admitting unqualified individuals or fraudsters.
18. It is contended that in the absence of regulations, the Chairmen of the KISM Council and the Registration Committee have bypassed corporate governance principles by signing practice licenses themselves and that in doing so, they have usurp the executive roles of the Registrar and Chief Executive Officer of the 1 st Respondent. He claims that therefore, the licensing of members is unprocedural, unlawful and irrational and creates public anxiety in view of the pervading fraud and corruption that has hamstrung supply chain management in Kenya.
19. The Petitioner contends that he requested the 3 rd Respondent to make regulations pursuant to Section 36 of the Act , which they undertook to do but are yet to make regulations. further, that KISM refused to provide him with the information used as the basis for the 2021 member registrations and licenses despite giving an explanation for the reasons for this information through a letter dated 29 th July 2021 which went un-responded to.
20. He deposes that KISM’s lack of due diligence, absence of verification mechanisms and irregular licensing of corporate entities have compromised the integrity of the profession, created public anxiety and provided succour and comfort to quacks and morally unfit persons to infiltrate supplies practice with the disastrous result of incompetence and unbridled corruption.
21. The Petitioner asserts that he has completely exhausted all administrative and internal avenues to correct these statutory lapses, leaving him with no other option but to seek the intervention of the High Court.
Responses
22. The 1 st Respondent Kenya Institute of Supplies Management—KISM filed a lengthy elaborate replying affidavit dated 2 nd March 2022 urging this Court to dismiss the Petition with costs on several grounds. It contends that the Petition is not filed in the public interest or on behalf of KISM members but instead, is characterized as a bad-faith, premature action driven by a disgruntled, embittered member whose legal advisory services and committee roles were terminated by the KISM Council due to his egotism and high-handedness.
23. The 1 st Respondent posits that this Petition has been presented and/or filed prematurely and in bad faith and is purely about the Petitioner attempting to bungle and mangle the profession of thousands of Procurement and Supply Chain practitioners to satisfy his unregulated ego. It is contended that the Petitioner filed the petition barely a month after receiving written assurances from the Cabinet Secretary for the National Treasury that consultations regarding the drafting of regulations were actively ongoing.
24. The 1 st Respondent asserts that the Petitioner relies on blanket, vague and rhetorical declarations without pleading specific constitutional violations or providing proof of any fraudulent or unprocedural member registrations.
25. It is asserted that the current KISM Council was elected in January 2020 as the first substantive Council since the 2007 Act. That despite losing months of active operations to the COVID-19 pandemic shortly after taking office, the Council immediately began implementing the Act. That the Council advertised for and fully constituted the Registration, Disciplinary, Legislation and Examination Board committees by mid-2020.
26. It is asserted that the foundational purpose of the Supplies Practitioners Management Act, 2007 is to provide a robust framework for the training, registration and licensing of supplies practitioners, as well as to regulate their professional practice. That following the election of the current Council of the 1 st Respondent on 10 th January 2020, and its subsequent gazettement on 21 st February 2020, the body immediately commenced implementing the Act as the first substantive Council since the enactment of the legislation.
27. The 1 st respondent states that within a week of gazettement, the Council aggressively pursued its mandate by advertising for expressions of interest to seat critical statutory organs, including the Registration and Disciplinary Committees, alongside several co-opted panels like the Legislation Committee and that by March 2020, the Council expanded its efforts to establish the Kenya Institute of Supplies Examination Board, the 2 nd Respondent herein, successfully appointing members to these various committees and fully constituting the Board by July 2020 after consulting with the Office of the Attorney General and securing nominations from diverse statutory bodies.
28. It is further asserted that concurrently, the Council sought legal guidance from the Solicitor General to navigate its dual mandate as both a regulatory body and a welfare institution. That acting on the 15 th April 2020 advisory from the Attorney General highlighting legislative gaps, KISM prioritized a comprehensive statutory overhaul to align the pre-2010 Act with the Constitution.
29. the 1 st respondent avers that in the final quarter of 2020, KISM’s Legislative Committee, into which the Petitioner was co-opted as a key legal advisor, formed a Taskforce to review the Act and its enabling regulation.
30. It is stated that this initiative was further formalised in April 2021 when the National Treasury nominated Ministry officials to the review task force, culminating in the submission of the Draft Supply Chain Management Professionals Bill, 2021 and the Draft Council Elections Regulations, 2021 to the Cabinet Secretary on 1 st August 2021.
31. That following a robust public participation phase in December 2021, these drafts were submitted to the State Law Office and the National Assembly for ongoing review, legally demonstrating that the 1 st Respondent actively and extensively operationalized the Act despite losing critical months to the COVID-19 pandemic.
32. KISM denies that a regulatory vacuum exists. It asserts that key regulations promulgated in 2015 specifically governing Examinations, Registration and Licensing, Discipline and Elections remain active and operational. further, that acting on an advisory from the Attorney General to align the pre-2010 Act with the Constitution, KISM partnered with the National Treasury to draft the Supply Chain Management Professionals Bill, 2021 and new Council Election Regulations aimed at decentralizing voting via online systems and devolving representation of members in the council. That both drafts underwent public participation in late 2021 as demonstrated in annexture “KISM-41” which is a copy of the communication of the members of the 1 st Respondent.
33. KISM denies that the Chairman frustrated the Petitioner’s Notice of Motion at the 30 th April 2021 AGM, noting that the issues raised primarily concerned making regulations that were already being handled by the Legislation Committee, which the Petitioner was a member of. It is Further contended that the Petitioner did not actually attend the AGM demonstrating that the Petition has been brought in bad faith.
34. KISM defends the Certified Procurement and Supply Professional of Kenya (CPSP-K) and Associate Procurement and Supply of Kenya (APS-K) courses administered by the 2 nd Respondent (KISEB), stating that they were formulated by a highly qualified 11-member professional board, subjected to public participation and formally accredited by the Kenya National Qualifications Authority (KNQA). It is stated that the Petitioner has no capacity or mandate to prescribe the curriculum and examination of the 2 nd Respondent as he is not its board member.
35. KISM refutes the claim that the courses lack practical training, pointing to an established 12-week Industry Based Learning (IBL) Policy prepared by the 2 nd Respondent in consultation with the 1 st Respondent.
36. It also maintains that the Council holds the discretion to waive this for practitioners with vast field experience. That the Petitioner cannot police the Council of the 1 st Respondent and the Board of the 2 nd Respondent and dictate to them what kinds of contents he deems as professional training and professional examinations and what kinds of contents in the training or examinations that he feels are non-professional.
37. It is asserted that Prescription of training and examination is a mandate that is given to the Board of the 2 nd Respondent and the Council of the 1 st Respondent. That the Petitioner may only suggest areas in the syllabus where he feels should be amended, or expunged or included and persuade the Board to amend, expunge or include his suggestions in the syllabus.
38. KISM affirms that Section 16 of the Act permits the Council to recognize and register individuals holding local or foreign qualifications such as those from the Chartered Institute of Procurement and Supply—CIPS deemed equivalent to KISEB certifications. KISM points out that the Petitioner himself is a primary beneficiary of this provision, having been registered and employed for years using CIPS qualifications without a KISEB certificate.
39. KISM maintains that the Universities Act, 2012 applies strictly to academic programs and does not supersede KISM’s statutory mandate to register professional supplies practitioners. It is asserted at paragraph 89 of the Response that professional certification does not mandatorily require a university degree as long as the individual attained a C+ overall grade in their Kenya Certificate of Secondary Education (KCSE).
40. The 1 st Respondent rejects the Petitioner’s assertion that there is no single qualified person or member of the 1 st Respondent to be a qualified procurement professional and KISM asserts that registration of Associate and Student members is justified as a lawful transitional mentoring mechanism under the Act.
41. Additionally, that the licensing of corporate firms is explicitly permitted under Section 20(2) of the Act and the 2015 Regulations .
42. KISM asserts that the signing of licenses by the Council and Registration Committee Chairmen is a proper administrative exercise under the Common Seal of the Institute and that application forms mandatorily require certified documents and background checks.
43. It also stated that the Public Procurement and Asset Disposal Act is a purely procedural law governing public sector procurement methods and is subservient to the Supplies Practitioners Management Act, 2007 regarding who qualifies as a procurement professional, with KISM’s membership cutting across public, private and NGO sectors.
44. The 1 st Respondent points out to the Court that the Petitioner has also filed a case in the Employment and Labour Relations Court at Nairobi Case No. ELRCPET/E 4/2022 , challenging and praying for nullification of the appointment of the Board of the 2 nd Respondent by the 1 st Respondent, with some of his key averments being that the Members of the Board of the 2 nd Respondent who were appointed by the 1 st Respondent pursuant to Section 12 (2) (a)of the Supplies Practitioners Management Act , are not qualified supplies practitioners as they were registered and licensed by the 1 st Respondent without being examined by the 2 nd Respondent.
45. That the Petitioner claims in the said petition that the said members of the Board are not qualified supplies practitioners as their academic qualifications, professional qualifications, moral fitness, registration and licensing cannot be vouched in the absence of the regulations required under Section 36 of the Supplies Practitioners Management Act, 2007 .
46. It is the 1 st Respondent’s further case that the Petitioner has not demonstrated a single set of facts or incident where the 1 st Respondent violated any Article of the Constitution, or any section of the Supplies Practitioners Management Act, 2007 or any other laws, regulations or policies nor violated any of the Petitioner’s rights.
47. It is also affirmed that the Petitioner has not established any cause of action against the 1 st Respondent and that his intention of dragging the Respondents to Court through this petition is an attempt to disrupt the operations of the 1 st Respondent, to ruin their reputation and create havoc between them and their members, simply for his own selfish, self-serving gains.
48. Finally, it is the 1 st Respondent’s contention that this Petition has been brought prematurely and in bad faith because the Petitioner is simply attempting to attack the Council of the 1 st Respondent after the Council disagreed with him on how he was handling various issues pertaining to the operations of the Institute, which prompted the 1 st Respondent to progressively discontinue the Petitioner’s services both as a Legal Advisor and as a co-opted and/or invited member of their Legislative Committee.
49. Equally opposing the Petition, the 2 nd Respondent , filed a replying affidavit sworn on 19 th March 2022 in which it is explained that it operates under the statutory framework of the Supplies Practitioners Management Act and acts on regular policy and standards advice from KISM per Section 5(d) of the Act as demonstrated by the Advisory issued on 28 th May 2020 from the 1 st Respondent to establish curricula, examination calendars, rules and certification policies.
50. KISEB systematically details how it fulfills its explicit statutory duties regarding professional certification specifically the Certified Procurement and Supply Professional of Kenya [CPSP-K] and Associate in Procurement and Supply of Kenya [APS-K]. It states that it prepares standard operating procedures, examination rules and syllabuses incorporating mandatory Industry-Based Learning (IBL) to realign skills with industry needs; and it structures budgets to remit at least 30% of examination fees back to KISM to support professional development, satisfying Section 13 (h) of Act .
51. The 2 nd respondent asserts that its certifications are recognized globally via affiliations with the International Federation of Purchasing and Supply Management (IFPSM).
52. It states that Section 13 of the Act does not explicitly or implicitly mandate public participation for its operations. However, it still holds stakeholder workshops for curriculum development such as the validation workshop of 28 th February, 2020. The 2 nd Respondent maintains that under Regulation 10 (1), the Board determines examination fees based strictly on operational expenses, with no legal obligation to subject these fee structures to public participation.
53. The 2 nd Respondent states that the alleged violations under Section 15(3) and Section 16 regarding professional registration are misdirected, as registration is purely a function of KISM’s Council, not KISEB. It asserts that it is not a university and therefore does not fall under the statutory jurisdiction of the Universities Act, 2012.
54. KISEB also contends that it has been formally accredited by the Kenya National Qualifications Authority (KNQA) as a National Qualification Awarding Institution in the TVET sector Certificate Serial No. KNQA/QAI/8/2021, valid from 11 th March 2021 to 11 th March 2025. That owing to this state of accreditation, KISEB maintains full legal authority to evaluate, recognize and equate foreign supply chain qualifications such as CIPS-UK or CILT-UK). Consequently, members holding equated certificates are recognized as bona fide .
55. KISEB denies violating the Constitution, stating that its strict administrative protocols adhere to Article 10 of the Constitution on National Values and Principles of Governance and Article 47 on the Right to Fair Administrative Action .
56. Accordingly, the 2 nd Respondent urges the Court to dismiss the Petition, stating that it has comprehensively executed its legal mandate, maintained proper separation of powers and acted fairly and judiciously within its statutory bounds.
57. The 3 rd Respondent filed Grounds of Opposition dated 2 nd March 2022 opposing the Petition on the following grounds:
(1) THAT the amended Petition has failed to raise any constitutional questions for determination by the Court.
(2) THAT the Petition herein lacks the requisite specificity in drafting as required by the provision of the law and as outlined by the Court in the Mumo Matemu case.
(3) THAT the amended Petition has misapprehended the roles of the 3 rd Respondent with regard to the making of the Regulations herein.
(4) THAT the nature of the orders sought by the Petitioner are in violation of the principle of separation of powers.
(5) THAT the Petition herein is premised on conjecture and the Petitioner has failed to provide any evidence of the allegations herein.
(6) THAT the Petitioner lacks the appropriate qualifications to make the allegations within the Petition herein.
58. The 3 rd Respondent also filed a Replying Affidavit sworn by Dr. Julius Muia, the Principal Secretary of the National Treasury on 23 rd March 2022 in which the 3 rd Respondent firmly refutes the Petitioner’s claim that there is a regulatory vacuum by detailing a comprehensive suite of active regulations. He notes that Regulations 3 to 38 of the Supplies Practitioners Management (Registration & Licensing) Regulations, 2015 were officially promulgated on 31 st December, 2015, via Legal Notice No. 259, that govern professional training, conditions for member registration, standards of practice and requisite fees; and the Examinations Regulations, Legal Notice No. 258, which establish curricula, academic records, exemptions and institutional accreditations and the Disciplinary & Elections Regulations Legal Notices No. 246 and 247. That all these provide the necessary frameworks for professional oversight and democratic council transitions.
59. It is averred that the Kenya Institute of Supplies Examinations Board (KISEB) was successfully operationalized in June 2020 through a transparent, fair and constitutionally sound recruitment process. That under its statutory mandate, KISEB collaborated with Kenya Accountants and Secretaries National Examinations Board (KASNEB) and the Kenya Institute of Curriculum Development (KICD) to roll out a pioneer Supply Chain curriculum
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