1. The Application that is before this court for determination is the Applicant’s Notice of Motion dated 16th February, 2026 wherein the Applicant is seeking for the following orders:-
1) THAT the Applicant be granted an Order of Certiorari to remove to this honourable court and quash the decision of the Respondent dismissing a request of review of a decision made by the procuring entity filed by the Applicant through the Applicant's Advocates in respect of a Tender No. MAPS/B-DORM/ 001/2025-2027.
2) THAT the Applicant be granted an Order of Mandamus to compel Respondent to direct the procuring entity to lawfully re-evaluate all bids submitted in strict compliance with the Public Procurement and Asset Disposal Act, 2015.
3) THAT the Applicant be granted an order of Prohibition restraining the Procuring Entity from implementing or proceeding with the award of Tender No. MAPS/B-DORM/ 001/2025-2027 to Preliam Enterprises until lawful re-evaluation is undertaken.
4) THAT this Honourable court stays the execution of decision by the Respondent pending the hearing of this Judicial Review Application.
5) THAT the costs of this Application be provided for.
2. It is supported by the Supporting Affidavit of Patrice Omolo the director of the Applicant dated 16th February, 2026.
3. Patrice Omolo had earlier filed a Verifying Affidavit dated 13th February 2026 pursuant to Order 53 Rule 4(1) of the Civil Procedure Rules wherein he deponed inter alia and in no particular order:
i. “That he participated in Tender No. MAPS/B-DORM/001/2025-2027 at Molo Academy Primary School.
ii. He believes that his bid was unlawfully disqualified at preliminary evaluation despite compliance with mandatory requirements.
iii. This precipitated the filing of Request for Review No. 9 of 2026, which was dismissed by the Board on 12th February 2026 without addressing substantive irregularities.
iv. He annexed copies of the request for review and determination by the board to the verifying Affidavit.
v. It is his case that the Board failed to consider violations of Section 75, Section 80(2), and Article 227 of the Constitution.
vi. He argues that unless this Honourable Court intervenes, the Procuring Entity will proceed to implement an unlawful award to Preliam Enterprises, causing irreparable prejudice to the Applicant.”
4. In the Supporting Affidavit dated 16th February, 2026, the Applicant deposed and annexed the following;
1) The Application and Directions granting leave issued in HCJRMISC/ E021/2026 marked as annexures P01.
2) THAT I also rely on the contents of my Verifying Affidavit sworn on the 13th day of February 2026 in support of the Application for leave, and the annexures therein.
3) THAT on 18th January 2025, I received a regret letter dated 9th January 2025, signed by the BOM Chairperson, the Accounting Officer (as BOM Secretary), the PTA Chairperson, and the JSS Chairperson. A copy of this regret letter is annexed hereto and marked "PO-2".
4) THAT aggrieved by this unlawful disqualification, I filed an appeal before the Respondent Board, being PARB Application No. 7 of 2025.
5) THAT on 28th January 2025, the Respondent Board delivered its ruling. The Board found in our favour, annulled the entire procurement process, and directed the Accounting Officer to re-evaluate all bids, including that of Bourice Construction Limited. The Board found that my bid was removed illegally, and noted that the documents the Procuring Entity purported were missing had in fact been submitted (pages 11-17 of the tender document).
6) THAT on 31st October 2025, the Accounting Officer sent another letter of regret, indicating that the process was still ongoing and that my company had been excluded. A copy of this letter is annexed and marked "PO-3",
7) THAT I received a regret letter on 4th December 2025 and before the expiry of the 14-day standstill period, I wrote a detailed letter to the Accounting Officer, copying the BOM Chairperson, A copy of my letter and the replies received are annexed hereto and marked "PO-4"
8) THAT the addendum issued on 29th December 2025, which I have in my possession, is annexed hereto and marked "PO-5".
9) THAT I wrote a letter expressing my frustration at this continual manipulation of the process. A copy of this frustration letter is annexed hereto and marked "PO-6".
10) THAT following this fourth flawed process, my company filed Request for Review No. 9 of 2026 before the Respondent Board. A copy of the request is annexed hereto and part of bundle PO1
11) THAT on 12th February 2026, the Respondent Board delivered its decision. A copy of this decision is annexed hereto and part of bundle "PO-1"
5. The Applicant also filed the submissions dated 5th March, 2026.
6. On its part the Respondent filed the Replying Affidavit dated 9th March, 2026 and the submissions dated 13th March, 2026 while the 2nd interested party only filed submissions and no Replying Affidavit.
Analysis and determination;
7. The court has identified the issue for determination to be whether the Application has merit.
8. In order to succeed in the Application, the Applicant has the duty to demonstrate or prove that the Respondent acted illegally, irregularly and with procedural impropriety.
9. In the case of Pastoli vs Kabale District Local Government Council & Others [2008] 2 EA 300 at pages 303 to 304 it was held thus:
"In order to succeed in an Application for Judicial Review, the Applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety: See Council of Civil Service Union v Minister for the Civil Service [1985] AC 2; and also Francis Bahikirwe Muntu and others v Kyambogo University, High Court, Kampala, miscellaneous Application number 643 of 2005 (UR),
Illegality is when the decision making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without Jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality
Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards: Re An Application by Bukoba Gymkhana Club [1963] EA 478 at page 479 paragraph E.
Procedural impropriety is when there is failure to act fairly on the part of the decision making authority in the process of taking a decision. The unfairness may be in nonobservance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision. (Al-Mehdawi v Secretary of State for the Home Department [1990] AC 876)." (Emphasis Ours).
10. In determining whether the Applicant has proven his case, I am further guided by the Supreme Court in Samson Gwer & 5 others v Kenya Medical Research Institute & 3 others (2020) KLR where it was held as follows:
“(49) Section 108 of the Evidence Act provides that, “the burden of proof in a suit or procedure lies on that person who would fail if no evidence at all were given on either side;” and Section 109 of the Act declares that, “the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”
11. In the case of Meshack Aluvaale –vs- Attorney General and 3 Others 1 [2013] eKLR, the Court stated as follows: -
“In a Judicial Review Application, it is the affidavit that is of circumstantial value but not the statement of facts. In the instant case, the verifying affidavit comprises, only three short paragraphs, which are introductory in nature. The facts and annexures relevant to the Application are all contained in the statement of facts which is offensive to Order 53, Rule (1) (2) Civil Procedure Rules –without facts in the verifying affidavit which is filed with the Chamber Summons, the judicial review Application is naked and cannot be sustained. I do agree with the Respondent that without evidence in support of the Application, the same is incompetent and fatally defective and must be struck out.”
12. In Republic –vs- Busia Chief Magistrate and 2 Others - Exparte - Mathias Murumbe Makokha [2016] eKLR the court restated that the legal position on Judicial Review remains that it is the verifying Affidavit not the statement to be verified which is of evidential value.
13. Getting back to the Application before this court, it is not in dispute that while seeking leave to institute these proceedings, the Applicant moved the court through the Chamber Summon that was supported by a Verifying Affidavit dated 13 th February 2026.
14. The Notice of Motion Application that is before this court for determination is supported by a Supporting Affidavit which carries the Applicant’s evidence in annexures P O 1, 2, 3, 4, 5, 6 and 7 that the Applicant intended to harness to advance and prove its case. He deponed that he would also be relying on the Verifying Affidavit.
15. In hearing Judicial Review proceedings initiated under Order 53 of the Civil Procedure Rules, the court can only rely on the Verifying Affidavit and not a Supporting Affidavit.
16. The Application for leave to institute the suit was properly supported by a Verifying Affidavit under Order 53 Rule (1) (2) Civil Procedure Rules.
17. In the Verifying Affidavit the Applicant’s director had 2 annexures without demonstrating how the Respondent acted illegally, irregularly or with procedural Impropriety. He did not create any nexus between the alleged breaches that form the cause of action to the reliefs sought.
18. The director deposed as follows;
1) THAT I participated in Tender No. MAPS/B-DORM/001/2025-2027 at Molo Academy Primary School.
2) THAT my bid was unlawfully disqualified at preliminary evaluation despite compliance with mandatory requirements.
3) THAT I filed Request for Review No. 9 of 2026, which was dismissed by the Board on 12th February 2026 without addressing substantive irregularities. (Annexed herein and marked PO1 & PO2 are copies of the request for review and determination by the board)
4) THAT the Board failed to consider violations of Section 75, Section 80(2), and Article 227 of the Constitution.
5) THAT unless this Honourable Court intervenes, the Procuring Entity will proceed to implement an unlawful award to Preliam Enterprises, causing irreparable prejudice to the Applicant.
19. The annexures marked PO1 & PO2 are copies of the request for review and the impugned determination by the board which runs into 37 pages.
20. The court cannot venture into the bundle of the said documents to look for illegalities, prejudice or violations of Section 75, Section 80(2), and Article 227 of the Constitution unless the Applicant takes the court into the documents pointing out to the court where the evidence sits.
21. If the court embarks into unguided consideration of the contents of annexures PO1 & PO2, then the court risks the possibility of walking into the alley of misinterpretation of what the Applicant’s line of argument is to the Applicant’s prejudice.
22. Such an unguided blanket analysis of the contents of annexures PO1 & PO2 will also expose the Respondent's and the interested party to unfair hearing process that will offend Article 50 of the Constitution which this court is under a duty to protect, promote and fulfil.
23. To grant the reliefs as sought by the Applicant under such circumstances will amount to a miscarriage of justice.
24. The case belongs to the Applicant and it is not the duty of the court to go on a fishing expedition to look for evidence for the Applicant.
25. It matters not what the Respondent is saying in response to the case if the Applicant did not build his case through the framework and statutory structure through the Verifying Affidavit under Order 53 of the Civil Procedure Rules.
26. For instance how will the Applicant prove the allegation that its bid was unlawfully disqualified at preliminary evaluation despite compliance with mandatory requirements from what the Applicant refers to in the blanket annexure in the verifying affidavit? The Applicant should have brought that out in the Verifying Affidavit which it failed to do.
27. Looked at from a different perspective, the Applicant cannot rely on both the Verifying Affidavit and the Supporting Affidavit at the substantive phase in Judicial Review Application. Order 53 of The Civil Procedure Rules does not allow that.
28. The statutory Statement of Facts, the Supporting Affidavit and the submissions cannot help the Applicant either.
29. The Applicant’s submissions cannot amount to evidence if they are predicated on quicksand or on the wrong statutory foundation.
30. In the case of Robert Ngande Kathathi v Francis Kivuva Kitonde [2020] eKLR, the court stated that: -
“It also relied on submissions of parties to which the no agreed documents were annexed. Submissions, with due respect, do not amount to evidence unless expressly adopted as such. Consequently, in legal proceedings, evidence ought not to be introduced by way of submissions.”
31. In Nancy Wambui Gatheru vs. Peter W Wanjere Ngugi Nairobi HCCC No. 36 of 1993 the court held as follows:
“Indeed, and strictly speaking submissions are not part of the evidence in a case. Submissions, to this court’s view, are a course by which counsel or able litigants focus the court’s attention on those points of the case that should be given the closest scrutiny in order to firmly establish a claim/charge or disprove it. Once the case is closed a court may well proceed to give its judgement. There are many cases especially where parties act in person where submissions are not heard. Even some counsel may opt not to submit. So, submissions are not necessarily the case.”
32. In Ng’ang’a & Another vs. Owiti & Another [2008] 1KLR (EP) 749, the Court held that:
“As the practice has it and especially where counsel appears, a Court may hear final submissions from them. This, strictly speaking, is not part of the case, the absence of which may do prejudice to a party. A final submission is a way by which counsel or sometimes (enlightened) parties themselves, crystallise the substance of the case, the evidence and the law relating to that case. It is, as it were, a way by which the Court’s focus is sought to be concentrated on the main aspects of the case which affect its outcome. Final submissions are not evidence. Final submissions may be heard or even dispensed with. But the main basis of a decision in a case, we can say are: the claim properly laid, evidence fully presented and the law applicable.”
33. In Erastus Wade Opande vs. Kenya Revenue Authority & Another Kisumu HCCA No. 46 of 2007 held that;
“Submissions simply concretise and focus on each side’s case with a view to win the court’s decision that way. Submissions are not evidence on which a case is decided.”
34. It is this court’s finding and so hold that the Applicant has not tendered evidence to prove its claim.
35. The Applicant’s submissions cannot stand on nothing. On their own they cannot assist this court in determining the issues before it.
36. In an adversarial system it is upon the parties to gather evidence, draft the pleadings and argue their case.
37. It is not the duty of the judge to look for the evidence for the court. The court is supposed to remain a neutral arbiter.
38. In Halsbury’s Laws of England Vol. 13, paragraph 1, the rationale behind discovery was expressly discussed in that;
“The function of the discovery of documents is to provide the parties with the relevant documentary material before the trial so as to assist them in appraising the strength or weakness of their relevant cases, and thus to provide the basis for the fair disposal of the proceedings before or at the trial.
Each party is thereby enabled to see before the trial or to adduce in evidence at the trial relevant documentary material to support or rebut the case made by or against him, to eliminate surprise at or before the trial relating to the documentary evidence and to reduce the cost of litigation”.
39. This is a public procurement case and even if the court were to exercise, it’s discretion under Article 159 of the Constitution to allow the Applicant to cure the lapse, the court’s hands are tied by the provisions of the Public Procurement And Assets Disposal Act which gives this court only 45 days to determine such Applications like the one before me.I decline to do that.
40. Ultimately the court finds that the Applicant has not proven it’s case.
Disposition:
41. The Application lacks merit.
Order:
The Application is struck out.
Dated, signed and delivered at Nairobi this 27th day of March, 2026.
1) THAT the Applicant be granted an Order of Certiorari to remove to this honourable court and quash the decision of the Respondent dismissing a request of review of a decision made by the procuring entity filed by the Applicant through the Applicant's Advocates in respect of a Tender No. MAPS/B-DORM/ 001/2025-2027.
2) THAT the Applicant be granted an Order of Mandamus to compel Respondent to direct the procuring entity to lawfully re-evaluate all bids submitted in strict compliance with the Public Procurement and Asset Disposal Act, 2015.
3) THAT the Applicant be granted an order of Prohibition restraining the Procuring Entity from implementing or proceeding with the award of Tender No. MAPS/B-DORM/ 001/2025-2027 to Preliam Enterprises until lawful re-evaluation is undertaken.
4) THAT this Honourable court stays the execution of decision by the Respondent pending the hearing of this Judicial Review Application.
5) THAT the costs of this Application be provided for.
2. It is supported by the Supporting Affidavit of Patrice Omolo the director of the Applicant dated 16th February, 2026.
3. Patrice Omolo had earlier filed a Verifying Affidavit dated 13th February 2026 pursuant to Order 53 Rule 4(1) of the Civil Procedure Rules wherein he deponed inter alia and in no particular order:
i. “That he participated in Tender No. MAPS/B-DORM/001/2025-2027 at Molo Academy Primary School.
ii. He believes that his bid was unlawfully disqualified at preliminary evaluation despite compliance with mandatory requirements.
iii. This precipitated the filing of Request for Review No. 9 of 2026, which was dismissed by the Board on 12th February 2026 without addressing substantive irregularities.
iv. He annexed copies of the request for review and determination by the board to the verifying Affidavit.
v. It is his case that the Board failed to consider violations of Section 75, Section 80(2), and Article 227 of the Constitution.
vi. He argues that unless this Honourable Court intervenes, the Procuring Entity will proceed to implement an unlawful award to Preliam Enterprises, causing irreparable prejudice to the Applicant.”
4. In the Supporting Affidavit dated 16th February, 2026, the Applicant deposed and annexed the following;
1) The Application and Directions granting leave issued in HCJRMISC/ E021/2026 marked as annexures P01.
2) THAT I also rely on the contents of my Verifying Affidavit sworn on the 13th day of February 2026 in support of the Application for leave, and the annexures therein.
3) THAT on 18th January 2025, I received a regret letter dated 9th January 2025, signed by the BOM Chairperson, the Accounting Officer (as BOM Secretary), the PTA Chairperson, and the JSS Chairperson. A copy of this regret letter is annexed hereto and marked "PO-2".
4) THAT aggrieved by this unlawful disqualification, I filed an appeal before the Respondent Board, being PARB Application No. 7 of 2025.
5) THAT on 28th January 2025, the Respondent Board delivered its ruling. The Board found in our favour, annulled the entire procurement process, and directed the Accounting Officer to re-evaluate all bids, including that of Bourice Construction Limited. The Board found that my bid was removed illegally, and noted that the documents the Procuring Entity purported were missing had in fact been submitted (pages 11-17 of the tender document).
6) THAT on 31st October 2025, the Accounting Officer sent another letter of regret, indicating that the process was still ongoing and that my company had been excluded. A copy of this letter is annexed and marked "PO-3",
7) THAT I received a regret letter on 4th December 2025 and before the expiry of the 14-day standstill period, I wrote a detailed letter to the Accounting Officer, copying the BOM Chairperson, A copy of my letter and the replies received are annexed hereto and marked "PO-4"
8) THAT the addendum issued on 29th December 2025, which I have in my possession, is annexed hereto and marked "PO-5".
9) THAT I wrote a letter expressing my frustration at this continual manipulation of the process. A copy of this frustration letter is annexed hereto and marked "PO-6".
10) THAT following this fourth flawed process, my company filed Request for Review No. 9 of 2026 before the Respondent Board. A copy of the request is annexed hereto and part of bundle PO1
11) THAT on 12th February 2026, the Respondent Board delivered its decision. A copy of this decision is annexed hereto and part of bundle "PO-1"
5. The Applicant also filed the submissions dated 5th March, 2026.
6. On its part the Respondent filed the Replying Affidavit dated 9th March, 2026 and the submissions dated 13th March, 2026 while the 2nd interested party only filed submissions and no Replying Affidavit.
Analysis and determination;
7. The court has identified the issue for determination to be whether the Application has merit.
8. In order to succeed in the Application, the Applicant has the duty to demonstrate or prove that the Respondent acted illegally, irregularly and with procedural impropriety.
9. In the case of Pastoli vs Kabale District Local Government Council & Others [2008] 2 EA 300 at pages 303 to 304 it was held thus:
"In order to succeed in an Application for Judicial Review, the Applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety: See Council of Civil Service Union v Minister for the Civil Service [1985] AC 2; and also Francis Bahikirwe Muntu and others v Kyambogo University, High Court, Kampala, miscellaneous Application number 643 of 2005 (UR),
Illegality is when the decision making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without Jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality
Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards: Re An Application by Bukoba Gymkhana Club [1963] EA 478 at page 479 paragraph E.
Procedural impropriety is when there is failure to act fairly on the part of the decision making authority in the process of taking a decision. The unfairness may be in nonobservance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision. (Al-Mehdawi v Secretary of State for the Home Department [1990] AC 876)." (Emphasis Ours).
10. In determining whether the Applicant has proven his case, I am further guided by the Supreme Court in Samson Gwer & 5 others v Kenya Medical Research Institute & 3 others (2020) KLR where it was held as follows:
“(49) Section 108 of the Evidence Act provides that, “the burden of proof in a suit or procedure lies on that person who would fail if no evidence at all were given on either side;” and Section 109 of the Act declares that, “the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”
11. In the case of Meshack Aluvaale –vs- Attorney General and 3 Others 1 [2013] eKLR, the Court stated as follows: -
“In a Judicial Review Application, it is the affidavit that is of circumstantial value but not the statement of facts. In the instant case, the verifying affidavit comprises, only three short paragraphs, which are introductory in nature. The facts and annexures relevant to the Application are all contained in the statement of facts which is offensive to Order 53, Rule (1) (2) Civil Procedure Rules –without facts in the verifying affidavit which is filed with the Chamber Summons, the judicial review Application is naked and cannot be sustained. I do agree with the Respondent that without evidence in support of the Application, the same is incompetent and fatally defective and must be struck out.”
12. In Republic –vs- Busia Chief Magistrate and 2 Others - Exparte - Mathias Murumbe Makokha [2016] eKLR the court restated that the legal position on Judicial Review remains that it is the verifying Affidavit not the statement to be verified which is of evidential value.
13. Getting back to the Application before this court, it is not in dispute that while seeking leave to institute these proceedings, the Applicant moved the court through the Chamber Summon that was supported by a Verifying Affidavit dated 13 th February 2026.
14. The Notice of Motion Application that is before this court for determination is supported by a Supporting Affidavit which carries the Applicant’s evidence in annexures P O 1, 2, 3, 4, 5, 6 and 7 that the Applicant intended to harness to advance and prove its case. He deponed that he would also be relying on the Verifying Affidavit.
15. In hearing Judicial Review proceedings initiated under Order 53 of the Civil Procedure Rules, the court can only rely on the Verifying Affidavit and not a Supporting Affidavit.
16. The Application for leave to institute the suit was properly supported by a Verifying Affidavit under Order 53 Rule (1) (2) Civil Procedure Rules.
17. In the Verifying Affidavit the Applicant’s director had 2 annexures without demonstrating how the Respondent acted illegally, irregularly or with procedural Impropriety. He did not create any nexus between the alleged breaches that form the cause of action to the reliefs sought.
18. The director deposed as follows;
1) THAT I participated in Tender No. MAPS/B-DORM/001/2025-2027 at Molo Academy Primary School.
2) THAT my bid was unlawfully disqualified at preliminary evaluation despite compliance with mandatory requirements.
3) THAT I filed Request for Review No. 9 of 2026, which was dismissed by the Board on 12th February 2026 without addressing substantive irregularities. (Annexed herein and marked PO1 & PO2 are copies of the request for review and determination by the board)
4) THAT the Board failed to consider violations of Section 75, Section 80(2), and Article 227 of the Constitution.
5) THAT unless this Honourable Court intervenes, the Procuring Entity will proceed to implement an unlawful award to Preliam Enterprises, causing irreparable prejudice to the Applicant.
19. The annexures marked PO1 & PO2 are copies of the request for review and the impugned determination by the board which runs into 37 pages.
20. The court cannot venture into the bundle of the said documents to look for illegalities, prejudice or violations of Section 75, Section 80(2), and Article 227 of the Constitution unless the Applicant takes the court into the documents pointing out to the court where the evidence sits.
21. If the court embarks into unguided consideration of the contents of annexures PO1 & PO2, then the court risks the possibility of walking into the alley of misinterpretation of what the Applicant’s line of argument is to the Applicant’s prejudice.
22. Such an unguided blanket analysis of the contents of annexures PO1 & PO2 will also expose the Respondent's and the interested party to unfair hearing process that will offend Article 50 of the Constitution which this court is under a duty to protect, promote and fulfil.
23. To grant the reliefs as sought by the Applicant under such circumstances will amount to a miscarriage of justice.
24. The case belongs to the Applicant and it is not the duty of the court to go on a fishing expedition to look for evidence for the Applicant.
25. It matters not what the Respondent is saying in response to the case if the Applicant did not build his case through the framework and statutory structure through the Verifying Affidavit under Order 53 of the Civil Procedure Rules.
26. For instance how will the Applicant prove the allegation that its bid was unlawfully disqualified at preliminary evaluation despite compliance with mandatory requirements from what the Applicant refers to in the blanket annexure in the verifying affidavit? The Applicant should have brought that out in the Verifying Affidavit which it failed to do.
27. Looked at from a different perspective, the Applicant cannot rely on both the Verifying Affidavit and the Supporting Affidavit at the substantive phase in Judicial Review Application. Order 53 of The Civil Procedure Rules does not allow that.
28. The statutory Statement of Facts, the Supporting Affidavit and the submissions cannot help the Applicant either.
29. The Applicant’s submissions cannot amount to evidence if they are predicated on quicksand or on the wrong statutory foundation.
30. In the case of Robert Ngande Kathathi v Francis Kivuva Kitonde [2020] eKLR, the court stated that: -
“It also relied on submissions of parties to which the no agreed documents were annexed. Submissions, with due respect, do not amount to evidence unless expressly adopted as such. Consequently, in legal proceedings, evidence ought not to be introduced by way of submissions.”
31. In Nancy Wambui Gatheru vs. Peter W Wanjere Ngugi Nairobi HCCC No. 36 of 1993 the court held as follows:
“Indeed, and strictly speaking submissions are not part of the evidence in a case. Submissions, to this court’s view, are a course by which counsel or able litigants focus the court’s attention on those points of the case that should be given the closest scrutiny in order to firmly establish a claim/charge or disprove it. Once the case is closed a court may well proceed to give its judgement. There are many cases especially where parties act in person where submissions are not heard. Even some counsel may opt not to submit. So, submissions are not necessarily the case.”
32. In Ng’ang’a & Another vs. Owiti & Another [2008] 1KLR (EP) 749, the Court held that:
“As the practice has it and especially where counsel appears, a Court may hear final submissions from them. This, strictly speaking, is not part of the case, the absence of which may do prejudice to a party. A final submission is a way by which counsel or sometimes (enlightened) parties themselves, crystallise the substance of the case, the evidence and the law relating to that case. It is, as it were, a way by which the Court’s focus is sought to be concentrated on the main aspects of the case which affect its outcome. Final submissions are not evidence. Final submissions may be heard or even dispensed with. But the main basis of a decision in a case, we can say are: the claim properly laid, evidence fully presented and the law applicable.”
33. In Erastus Wade Opande vs. Kenya Revenue Authority & Another Kisumu HCCA No. 46 of 2007 held that;
“Submissions simply concretise and focus on each side’s case with a view to win the court’s decision that way. Submissions are not evidence on which a case is decided.”
34. It is this court’s finding and so hold that the Applicant has not tendered evidence to prove its claim.
35. The Applicant’s submissions cannot stand on nothing. On their own they cannot assist this court in determining the issues before it.
36. In an adversarial system it is upon the parties to gather evidence, draft the pleadings and argue their case.
37. It is not the duty of the judge to look for the evidence for the court. The court is supposed to remain a neutral arbiter.
38. In Halsbury’s Laws of England Vol. 13, paragraph 1, the rationale behind discovery was expressly discussed in that;
“The function of the discovery of documents is to provide the parties with the relevant documentary material before the trial so as to assist them in appraising the strength or weakness of their relevant cases, and thus to provide the basis for the fair disposal of the proceedings before or at the trial.
Each party is thereby enabled to see before the trial or to adduce in evidence at the trial relevant documentary material to support or rebut the case made by or against him, to eliminate surprise at or before the trial relating to the documentary evidence and to reduce the cost of litigation”.
39. This is a public procurement case and even if the court were to exercise, it’s discretion under Article 159 of the Constitution to allow the Applicant to cure the lapse, the court’s hands are tied by the provisions of the Public Procurement And Assets Disposal Act which gives this court only 45 days to determine such Applications like the one before me.I decline to do that.
40. Ultimately the court finds that the Applicant has not proven it’s case.
Disposition:
41. The Application lacks merit.
Order:
The Application is struck out.
Dated, signed and delivered at Nairobi this 27th day of March, 2026.