REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW DIVISION
JUDICIAL REVIEW APPLICATION NO. E019 OF 2026
REPUBLIC…………………………………………………….... APPLICANT
AND
THE PUBLIC PROCUREMENT
ADMINISTRATIVE REVIEW BOARD………………...1 ST RESPONDENT
KENYA POWER & LIGHTNING CO. LTD…………...2 ND RESPONDENT
SULTAN LIMITED………………………………... EXPARTE APPLICANT
JUDGMENT
1. The Notice of Motion dated 27 th January 2026 and filed on the same day is brought under the provisions of Articles 22, 23, 47, 50 (1), 159 and 227 of the Constitution as read with section 175 of the Public Procurement and Asset Disposal Act No. 33 of 2015.
2. The applicant seeks orders of setting aside of the decision of the PPARB rendered on 13 th January, 2026, which decision struck out the applicant’s request for review on account that the applicant did not enjoin the accounting officer of the procuring entity. Consequently, the applicant seeks judicial review orders of certiorari quashing the aforesaid decision for violation of Articles 47 and 50 (1) of the Constitution and that the request for review be remitted to the Public Procurement Administrative Review Board for determination on its merits before a differently constituted panel, upon affording all parties an opportunity to be heard. The last prayer is for costs to be in the cause.
3. The Notice of motion is supported by grounds on the face thereof, the statutory statement and verifying affidavit sworn by Kefa Kamau Mundati who introduces himself as ‘the applicant’ and competent to swear the affidavit.
4. In his deposition, Mr. Mundati depones in a somewhat mixed-up manner, that on 23 rd December 2025, he filed a request for review challenging procurement proceedings undertaken by the 2 nd Respondent and that the accounting officer of the procuring entity was aware of the said proceedings as he was represented by counsel and that he fully participated in the said hearing of request for review and that at no point did he raise any objection as to joinder of accounting officer.
5. That on 13 th January, 2026, the Review Board in its impugned decision struck out the request for review on account of lack of jurisdiction because, according to the Review Board, the applicant did not enjoin the accounting officer as a respondent party contrary to section 170 of the Public Procurement and Asset Disposal Act.
6. The applicant asserts that the non-joinder issue was raised suo moto by the Review Board in its impugned decision and that parties were never invited to make any submissions on the same, which action by the Review Board, the applicant asserts, was in violation of Articles 47 on the right to a fair administrative action and 50 (1) on the right to a fair hearing.
7. According to the applicant deponent, he does not seek to invalidate the statutory omission but seeks redress for the procedural unfairness by which the Review Board arrived at its decision. The applicant annexed copy of the impugned decision.
8. Opposing the application, the 2 nd Respondent procuring entity filed a Notice of Preliminary Objection dated 2 nd February, 2026. It contends that the application offends the trite principle set out for filing of applications for judicial review and that therefore it offends the provisions of Order 53 Rules (1) and (2) of the Civil procedure Rules, 2010 and sections 7 and 11 of the Fair Administrative Action Act, 2015.
9. The 2 nd Respondent further contends that the application is frivolous, vexatious and an abuse of the court process, a waste of the court’s time and the parties’ time. Additionally, that the applicant has not disclosed any grounds to merit the grant of any orders sought in the application; that the application seeks to emasculate a quasi-judicial institution from performing its duties; and finally, that the application seeks an appeal on the merits of the decision by the Review Board, disguised as a judicial review application.
10. The 1 st respondent did not file any documents.
Submissions
11. The Notice of motion was canvassed by way of oral submissions. On behalf of the applicant, Mr. Abdi submitted reiterating the applicant’s pleadings and argued that the decision by the Board where it raised the issue of non-joinder of the accounting officer on its own motion and deciding the request for review based on that suo moto issue without any party raising the said issue was erroneous. That in any event, the accounting officer was represented as part of the Kenya Power & Lighting Co. Ltd, PLC.
12. Secondly, that tere was no notice or hearing of that issue, that the Review Board did not invite the parties to be heard on that issue and instead, it proceeded to strike out the request for review. This, according to counsel for the applicant, violated Articles 47 and 50 of the Constitution and the rules of natural justice. He argued that a tribunal cannot terminate proceedings on a technical issue without hearing the parties.
13. Thirdly, it was submitted that a mandatory law does not equate to unfair process even while the law is strict. He argued that the Review Board acted unfairly, unreasonably and unprocedurally in striking out the request for review without hearing the parties. That by striking out the request for review, the Review Board shut out the applicant from the merits of the request for review, which defeats the Public Procurement and Asset Disposal Act (PPADA). He submitted that Section 175 of the Act empowers this court to correct such procedural fairness.
14. On the preliminary objection filed, it was submitted relying on the Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd [1969] EA 696 at 700 case on what a preliminary objection is. He submitted that the point raised by the Review Board was not a point of law.
15. In regard to Order 53 of the Civil Procedure Rules, it was submitted that the objection is misleading and misconceived because this is not a common law Judicial Review but was brought under Section 175 of the PPADA and that no leave is required. That the procedure is to approach the court strictly within the given timelines and that courts have consistently held that Order 53 of the Civil Procedure Rules does not apply to public procurement matters. (Counsel retracted the submission upon being requested by the Court to indicate which decision he wa relying on.
16. Counsel submitted that the applicant was not seeking this court to evaluate the tender. That the applicant was seeking for certiorari to quash a procedurally unfair decision and remittal to the Board to hear the request for review before a differently constituted panel.
17. He submitted that the preliminary objection dated 2/2/2026 is incompetent and misconceived and that the Board’s decision violated Articles 47 and 50 of the constitution by condemning the applicant unheard. He urged this Court to dismiss the preliminary objection and allow the motion as prayed, with costs in the cause.
18. On behalf of the 2 nd respondent, Ms Mulela submitted relying on the preliminary objection dated 2/2/2026. She submitted that the application offends the principles for filing of Judicial Review applications. That Judicial Review looks at decision making process. That the applicant had failed to demonstrate sufficient grounds and was asking this Court to sit as an appellate court.
19. She argued that each party was accorded an opportunity to be heard and all documents were placed before the Board. She submitted that the Board is entitled to determine jurisdiction or competence suo moto as it did, ensuring that it had the jurisdiction. She relied on Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd (Civil Appeal 50 of 1989) [1989] KECA 48 (KLR) (17 November 1989) (Judgment) case, the locus classicus decision on jurisdiction.
20. It was submitted that the 1st Respondent was bound to determine non joinder of a mandatory party as it did and that there was no denial of a hearing or illegality. Further submission was that the applicant’s grievance is merit based and therefore it does not meet the statutory threshold for Judicial Review. Counsel urged this Court to uphold the decision of the 1st Respondent.
21. In a brief rejoinder, Mr. Abdi submitted that the application is not an appeal disguised as a Judicial Review and that the applicant was challenging the decision-making process. That there was no due process in striking out the request for review as the applicant was not given an opportunity to be heard on the own motion by the Review Board.
Analysis and determination
22. I have considered the application as pleaded and the preliminary objection together with the respective parties’ counsel’s oral submissions. the issues arising for determination are:
i. Whether the application offends the provisions of Order 53 Rules (1) and (2) of the Civil procedure Rules on filing of Judicial Review Proceedings;
ii. Whether there is merit in the application and therefore-
a. Whether the application is an appeal disguised as judicial review;
b. Whether the application discloses grounds for grant of the judicial review orders sought;
iii. What orders should this Court make
23. On whether the application offends Order 53 Rules (1) and (2) of the Civil Procedure Rules, the 2 nd respondent contends and submits that the applicant filed a notice of motion without first seeking and obtaining leave of court as required under Order 53 of the Civil procedure Rules. In response, the respondent’s counsel argued and retracted those applications under section 175 of the PPADA do not require leave of Court and that order 53 of the Civil Procedure Rules is inapplicable to public procurement proceedings. The latter submission was withdrawn when the Court asked counsel for the applicant to indicate which decision of the court he was relying on. That said, since the issue was raised, this court is under a duty to determine it to clarify the issue.
24. Order 53 Rule 1(1), (2) and (3) of the Civil Procedure Rules provides as follows:
1. Applications for mandamus, prohibition and certiorari to be made only with leave [Order 53, rule 1]
(1) No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefor has been granted in accordance with this rule.
(2) An application for such leave shall be made ex parte to a judge in chambers, and shall be accompanied by —
(a) a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought; and
(b) affidavits verifying the facts and averment that there is no other cause pending, and that there have been no previous proceedings in any court between the applicant and the respondent, over the same subject matter and that the cause of action relates to the applicants named in the application.
(3) The judge may, where leave denotes stay, impose such terms as to costs and as to giving security as he thinks fit including cash deposit, bank guarantee or insurance bond from a reputable institution
25. On the other hand, Order 53 Rule 3 (1) stipulates that:
3. Application to be by notice of motion [Order 53, rule 3]
(1) When leave has been granted to apply for an order of mandamus, prohibition or certiorari, the application shall be made within twenty-one days by notice of motion to the High Court, and there shall, unless the judge granting leave has otherwise directed, be at least eight clear days between the service of the notice of motion and the day named therein for the hearing.
26. Order 53 of the Civil Procedure Rules mandates that to apply for judicial review orders of mandamus, prohibition or certiorari, an applicant must first seek and obtain leave of court. Upon such leave being granted, the applicant then files a substantive motion within the timeline of 21 days or such short period as the court may grant. This provision is akin to section 9 of the Law Reform Act which provides that:
9. Rules of court
(1) Any power to make rules of court to provide for any matters relating to the procedure of civil courts shall include power to make rules of court—
(a) prescribing the procedure and the fees payable on documents filed or
issued in cases where an order of mandamus, prohibition or certiorari
is sought;
(b) requiring, except in such cases as may be specified in the rules, that
leave shall be obtained before an application is made for any such order;
27. The requirement for leave to apply for judicial review Orders of certiorari, mandamus and prohibition is under the Law Reform Act and its procedural operational provision Order 53 of the Civil Procedure Rules. The purpose for leave has been stated severally without a number, to be for weeding out frivolous, vexatious and hopeless applications and to ensure that only prima facie arguable applications are allowed to proceed to the substantive stage.
28. In Republic vs. Land Disputes Tribunal Court Central Division and Another Ex Parte Nzioka [2006] 1 EA 321, Nyamu,J (as he then was) held that leave should be granted, if on the material available the court considers, without going into the matter in depth, that there is an arguable case for granting leave and that leave stage is a filter whose purpose is to weed out hopeless cases at the earliest possible time, thus saving the pressure on the courts and needless expense for the applicant by allowing malicious and futile claims to be weeded out or eliminated so as to prevent public bodies being paralysed for months because of pending court action which might turn out to be unmeritorious. See also Republic vs. The P/S Ministry of Planning and National Development Ex Parte Kaimenyi [2006] 1 EA 353.
29. Waki, J (as he then was), on the other hand, in Republic vs. County Council of Kwale & Another Ex Parte Kondo & 57 Others Mombasa HCMCA No. 384 of 1996 put it thus:
“The purpose of application for leave to apply for judicial review is firstly to eliminate at an early stage any applications for judicial review which are either frivolous, vexatious or hopeless and secondly to ensure that the applicant is only allowed to proceed to substantive hearing if the Court is satisfied that there is a case fit for further consideration. The requirement that leave must be obtained before making an application for judicial review is designed to prevent the time of the court being wasted by busy bodies with misguided or trivial complaints or administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived… Leave may only be granted therefore if on the material available the court is of the view, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the applicant the test being whether there is a case fit for further investigation at a full inter partes hearing of the substantive application for judicial review. It is an exercise of the court’s discretion but as always it has to be exercised judicially”.
30. This position was confirmed by the Court of Appeal in Meixner & Another vs. Attorney General [2005] 2 KLR 189 in which the Court held that the leave of the court is a prerequisite to making a substantive application for judicial review and that the purpose of the leave is to filter out frivolous applications hence the granting of leave or otherwise involves an exercise of judicial discretion.
31. The circumstances which guide the grant of leave to apply for judicial review remedies were enumerated in Mirugi Kariuki vs. Attorney General Civil Appeal No. 70 of 1991 [1990-1994] EA 156; [1992] KLR 8 as follows:
“The law relating to judicial review has now reached the stage where it can be said with confidence that, if the subject matter in respect of which prerogative power is exercised is justiciable, that is to say if it is a matter on which the Court can adjudicate, the exercise of the power is subject to review in accordance with the principles developed in respect of the review of the exercise of statutory power…the controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject matter… It is not the absoluteness of the discretion nor the authority of exercising it that matter but whether in its exercise, some of the person’s legal rights or interests have been affected. This makes the exercise of such discretion justiciable and therefore subject to judicial review. In the instant appeal, it is of no consequence that the Attorney General has absolute discretion under section 11(1) of the Act if in its exercise the appellant’s legal rights or interests were affected. The applicant’s complaint in the High Court was that this was so and for that reason he sought leave of the court to have it investigated. It is wrong in law for the Court to attempt an assessment of the sufficiency of an applicant’s interests without regard to the matter of his complaint. If he fails to show, when he applies for leave, a prima facie case, on reasonable grounds for believing that there has been a failure of public duty, the Court would be in error if it granted leave. The curb represented by the need for the applicant to show, when he seeks leave to apply, that he has a case, is an essential protection against abuse of the legal process. It enables the Court to prevent abuse by busybodies, cranks and other mischief-makers… In this appeal, the issue is whether the appellant in his application for leave to apply for orders of certiorari and mandamus demonstrated to the High Court a prima facie case for the grant of those orders. Clearly, once breach of the rules of natural justice was alleged, the exercise of discretion by the Attorney General under section 11(1) of the Act was brought into question. Without a rebuttal to these allegations, the appellant certainly disclosed a prima facie case. For that, he should have been granted leave to apply for the orders sought.”
32. In R vs. Communications Commission of Kenya & 2 Others Ex Parte East Africa Televisions Network Ltd. Civil Appeal No. 175 of 2000 [2001] KLR 82; [2001] 1 EA 199, the Court of Appeal was of the view that leave should be granted if, on the material available, the Court considers, without going into the matter in depth, that there is an arguable case for granting leave.
33. In Re Bivac International SA (Bureau Veritas) [2005] 2 EA 43 (HCK), the Court stated:
“Application for leave to apply for orders of judicial review are normally ex parte and such an application does restrict the Court to threshold issues namely whether the applicant has an arguable case, and whether if leave is granted, the same should operate as a stay. Whereas judicial review remedies are at the end of the day discretionary, that discretion is a judicial discretion and, for this reason a court has to explain how the discretion, if any, was exercised so that all the parties are aware of the factors which led to the exercise of the Court’s discretion. There should be an arguable case which without delving into the details could succeed and an arguable case is not ascertained by the court by tossing a coin or waving a magic wand or raising a green flag, the ascertainment of an arguable case is an intellectual exercise in this fast growing area of the law and one has to consider without making any findings, the scope of the judicial review remedy sought, the grounds and the possible principles of administrative law involved and not forget the ever expanding frontiers of judicial review and perhaps give an applicant his day in court instead of denying him…. ...Although leave should not be granted as a matter of routine, where one is in doubt one has to consider the wise words of Megarry, J in the case of John vs. Rees [1970] Ch 345 at 402. In the exercise of the discretion on whether or not to grant stay, the court takes into account the needs of good administration.”
34. The Supreme Court affirmed the position that where a party approaches the High Court under Order 53 of the Civil Procedure Rules and sections 8 and 9 of the Law Reform Act, they must first seek and obtain leave before filing the substantive Notice of Motion. The apex Court stated as follows in Petition No. 20 of (E023) 2022, Isaac Aluoch Polo Aluochier v IEBC and 17 others:
“[33] Rejecting the appellant’s application to review by quashing this decision, the High Court agreed and upheld the reasons and conclusions by the Committee for dismissing the complaint. It also found that the application, though constitutional, sought judicial review reliefs and ought to have been commenced in accordance with the relevant rules. [34] The Court of Appeal, on a second challenge affirmed this determination, answering the two issues framed by the High Court; whether the application was competent and whether the Committee had jurisdiction to determine the dispute before it. It appears to us that the ratio emanating from the High Court decision was around, the nature and scope of judicial review; the doctrine of sub-judice; and the jurisdiction of the Committee.
[33] Rejecting the appellant’s application to review by quashing this decision, the High Court agreed and upheld the reasons and conclusions by the Committee for dismissing the complaint. It also found that the application, though constitutional, sought judicial review reliefs and ought to have been commenced in accordance with the relevant rules. [34] The Court of Appeal, on a second challenge affirmed this determination, answering the two issues framed by the High Court; whether the application was competent and whether the Committee had jurisdiction to determine the dispute before it. It appears to us that the ratio emanating from the High Court decision was around, the nature and scope of judicial review; the doctrine of sub-judice; and the jurisdiction of the Committee. 14 Petition No. 20 of (E023) 2022 [35] On the first question, the learned Judge rendered this statement; “33. What then is the procedure for bringing Judicial Review application? The submission by Mr. Aluochier that this application is under Article 47 of the Constitution and therefore not subject to Order 53 Civil Procedure Rules and Section 8 and 9 of the Law Reform Act cannot hold water. Judicial Review is a special jurisdiction. In so far as no rules have been made under Article 47 of the Constitution, there can be no vacuum in law. A party approaching court for Judicial Review orders of Certiorari, Mandamus and Prohibition must comply with the procedure under Order 53 of the Civil Procedure Rules. He must seek the court’s leave first through a Chamber Summons Application supported by a Statement of Facts and a Verifying Affidavit and annexures in support of the prayers. In this case, the applicant should have annexed the impugned decision. It is after grant of leave, that an applicant is allowed to file the Notice of Motion application within 21 days. Seeking of leave is meant to expedite the process and weed out any frivolous applications. 34.The applicant has done none of that. What is before the court is neither a Judicial Review application nor a Petition. If the applicant wanted to file a Petition to seek any Constitutional remedies available including Judicial Review orders, he should have done so under the rules under the Constitution (Mutunga Rules). Article 23 (3) of the Constitution outlines the remedies a person can seek in a Constitutional Petition which includes Judicial Review orders. If it was a petition, then the applicant would have not needed to seek leave of court to file the petition.”
[36] Reference in this passage to Articles 23 and 47 of the Constitution is only in relation to the scope of judicial review in terms of the Constitution, a totally different cause from the initial complaint before the Committee, where Articles 193(1)(b) and 194 (1) (e), among others, were alleged to have been breached.”
35. What emerges clearly from the foregoing decisions is that where an applicant approaches the Court under the Law Reform Act and Order 53 Rule 1(1) of the Civil Procedure Rules, then they must first seek leave to apply for substantive judicial review orders stipulated in Order 53 and such leave may only be granted if on the material available, the court is of the view, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the applicant, the test being whether there is a case fit for further investigation at a full inter partes hearing of the substantive application for judicial review.
36. However, where an applicant approaches the Court under the Constitution, the Fair Administrative Action Act and the Rules enacted in October 2024 operationalizing the Act, then the requirement for leave is absent. Such an applicant only needs to file an Originating Motion as stipulated in Rule 11 of the Fair Administrative Action Rules, 2024, seeking for appropriate judicial review orders, save that such proceedings, other than Public Procurement proceedings which have a timeline of 45 days for determination, have to be determined within 90 days of the date of filing into court.
37. The relevant provisions of the Fair Administrative Action Act and Rules state as follows:
S.7. Institution of proceedings.
(1) Any person who is aggrieved by an administrative action or decision may apply for review of the administrative action or decision to (a) a court in accordance with section 8; or
(b) a tribunal in exercise of its jurisdiction conferred in that regard under any written law.
8. Period for determination of applications and appeals.
An application for the review of an administrative action or an appeal under this Act shall be determined within ninety days of filing the application.
9. Procedure for judicial review.
(1) Subject to subsection (2), a person who is aggrieved by an administrative action may, without unreasonable delay, apply for judicial review of any administrative action to the High Court or to a subordinate court upon which original jurisdiction is conferred pursuant to Article 22(3) of the Constitution.
38. None of the above substantive provisions of the Fair Administrative Action Act mandate that leave to apply for judicial review must be sought and obtained. All that the applicant needs to do is apply for judicial review but without unreasonable delay. The Rules made under the Act provide for the procedure for applying for judicial review as follows, under Rule 11:
R.11. Originating motion
(1) An application for judicial review shall be by way of an originating motion accompanied by a supporting affidavit.
(2) The Originating Motion shall substantially be in Form JR 2 as set out in the Schedule.
(3) The claim shall—
(a) set out the name and description of the applicant;
(b) state the relief sought and the grounds on which it is sought;
(c) contain a statement that internal mechanisms for appeal or review and any remedy available under any other written law have been exhausted;
(d) state the administrative action or decision complained of or the date it was taken;
(e) state the person who took the administrative action or decision;
(f) state the reason for the administrative action or decision, if any; and
(g) state the reason the applicant thinks the administrative action or decision was not in accordance with the Act.
39. The Schedule to the aforesaid Rules provides for the format that the Originating motion shall take, but the Rule from a plain reading, is akin to a statutory statement which is required to be filed under Order 53 Rule 1 (2) of the Civil Procedure Rules which stipulates:
(2) An application for such leave shall be made ex parte to a judge in chambers, and shall be accompanied by —
(a) a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought ; and
(b) affidavits verifying the facts and averment that there is no other cause pending, and that there have been no previous proceedings in any court between the applicant and the respondent, over the same subject matter and that the cause of action relates to the applicants named in the application.
40. On the other hand, it is important to note that the Fair Administrative Action Act is an implementing Act for Article 47 of the Constitution which guarantees the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
41. The Fair Administrative Action Act does not repeal the Law Reform Act and its implementing Rules made pursuant to section 9 (1) (b) of the Act which is Order 53 of the Civil Procedure Rules and which Rules mandate leave to be sought and obtained before filing an application for substantive orders by way of notice of motion for judicial review. In that regard, section 12 of the FAAA provides:
12. Principles of common law and rules of natural justice.
This Act is in addition to and not in derogation from the general principles of common law and the rules of natural justice
42. It is common knowledge that the Law Reform Act is derived from common law practices. Based on the above position, it is clear to this Court that there is no requirement for leave to apply, where a party seeks for judicial review purely under Articles 47 and 50(1) of the Constitution as well as the Fair Administrative Action Act and the Rules made thereunder. Further, judicial review being a constitutional remedy, and now with the Rules made under the Fair Adminis
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IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW DIVISION
JUDICIAL REVIEW APPLICATION NO. E019 OF 2026
REPUBLIC…………………………………………………….... APPLICANT
AND
THE PUBLIC PROCUREMENT
ADMINISTRATIVE REVIEW BOARD………………...1 ST RESPONDENT
KENYA POWER & LIGHTNING CO. LTD…………...2 ND RESPONDENT
SULTAN LIMITED………………………………... EXPARTE APPLICANT
JUDGMENT
1. The Notice of Motion dated 27 th January 2026 and filed on the same day is brought under the provisions of Articles 22, 23, 47, 50 (1), 159 and 227 of the Constitution as read with section 175 of the Public Procurement and Asset Disposal Act No. 33 of 2015.
2. The applicant seeks orders of setting aside of the decision of the PPARB rendered on 13 th January, 2026, which decision struck out the applicant’s request for review on account that the applicant did not enjoin the accounting officer of the procuring entity. Consequently, the applicant seeks judicial review orders of certiorari quashing the aforesaid decision for violation of Articles 47 and 50 (1) of the Constitution and that the request for review be remitted to the Public Procurement Administrative Review Board for determination on its merits before a differently constituted panel, upon affording all parties an opportunity to be heard. The last prayer is for costs to be in the cause.
3. The Notice of motion is supported by grounds on the face thereof, the statutory statement and verifying affidavit sworn by Kefa Kamau Mundati who introduces himself as ‘the applicant’ and competent to swear the affidavit.
4. In his deposition, Mr. Mundati depones in a somewhat mixed-up manner, that on 23 rd December 2025, he filed a request for review challenging procurement proceedings undertaken by the 2 nd Respondent and that the accounting officer of the procuring entity was aware of the said proceedings as he was represented by counsel and that he fully participated in the said hearing of request for review and that at no point did he raise any objection as to joinder of accounting officer.
5. That on 13 th January, 2026, the Review Board in its impugned decision struck out the request for review on account of lack of jurisdiction because, according to the Review Board, the applicant did not enjoin the accounting officer as a respondent party contrary to section 170 of the Public Procurement and Asset Disposal Act.
6. The applicant asserts that the non-joinder issue was raised suo moto by the Review Board in its impugned decision and that parties were never invited to make any submissions on the same, which action by the Review Board, the applicant asserts, was in violation of Articles 47 on the right to a fair administrative action and 50 (1) on the right to a fair hearing.
7. According to the applicant deponent, he does not seek to invalidate the statutory omission but seeks redress for the procedural unfairness by which the Review Board arrived at its decision. The applicant annexed copy of the impugned decision.
8. Opposing the application, the 2 nd Respondent procuring entity filed a Notice of Preliminary Objection dated 2 nd February, 2026. It contends that the application offends the trite principle set out for filing of applications for judicial review and that therefore it offends the provisions of Order 53 Rules (1) and (2) of the Civil procedure Rules, 2010 and sections 7 and 11 of the Fair Administrative Action Act, 2015.
9. The 2 nd Respondent further contends that the application is frivolous, vexatious and an abuse of the court process, a waste of the court’s time and the parties’ time. Additionally, that the applicant has not disclosed any grounds to merit the grant of any orders sought in the application; that the application seeks to emasculate a quasi-judicial institution from performing its duties; and finally, that the application seeks an appeal on the merits of the decision by the Review Board, disguised as a judicial review application.
10. The 1 st respondent did not file any documents.
Submissions
11. The Notice of motion was canvassed by way of oral submissions. On behalf of the applicant, Mr. Abdi submitted reiterating the applicant’s pleadings and argued that the decision by the Board where it raised the issue of non-joinder of the accounting officer on its own motion and deciding the request for review based on that suo moto issue without any party raising the said issue was erroneous. That in any event, the accounting officer was represented as part of the Kenya Power & Lighting Co. Ltd, PLC.
12. Secondly, that tere was no notice or hearing of that issue, that the Review Board did not invite the parties to be heard on that issue and instead, it proceeded to strike out the request for review. This, according to counsel for the applicant, violated Articles 47 and 50 of the Constitution and the rules of natural justice. He argued that a tribunal cannot terminate proceedings on a technical issue without hearing the parties.
13. Thirdly, it was submitted that a mandatory law does not equate to unfair process even while the law is strict. He argued that the Review Board acted unfairly, unreasonably and unprocedurally in striking out the request for review without hearing the parties. That by striking out the request for review, the Review Board shut out the applicant from the merits of the request for review, which defeats the Public Procurement and Asset Disposal Act (PPADA). He submitted that Section 175 of the Act empowers this court to correct such procedural fairness.
14. On the preliminary objection filed, it was submitted relying on the Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd [1969] EA 696 at 700 case on what a preliminary objection is. He submitted that the point raised by the Review Board was not a point of law.
15. In regard to Order 53 of the Civil Procedure Rules, it was submitted that the objection is misleading and misconceived because this is not a common law Judicial Review but was brought under Section 175 of the PPADA and that no leave is required. That the procedure is to approach the court strictly within the given timelines and that courts have consistently held that Order 53 of the Civil Procedure Rules does not apply to public procurement matters. (Counsel retracted the submission upon being requested by the Court to indicate which decision he wa relying on.
16. Counsel submitted that the applicant was not seeking this court to evaluate the tender. That the applicant was seeking for certiorari to quash a procedurally unfair decision and remittal to the Board to hear the request for review before a differently constituted panel.
17. He submitted that the preliminary objection dated 2/2/2026 is incompetent and misconceived and that the Board’s decision violated Articles 47 and 50 of the constitution by condemning the applicant unheard. He urged this Court to dismiss the preliminary objection and allow the motion as prayed, with costs in the cause.
18. On behalf of the 2 nd respondent, Ms Mulela submitted relying on the preliminary objection dated 2/2/2026. She submitted that the application offends the principles for filing of Judicial Review applications. That Judicial Review looks at decision making process. That the applicant had failed to demonstrate sufficient grounds and was asking this Court to sit as an appellate court.
19. She argued that each party was accorded an opportunity to be heard and all documents were placed before the Board. She submitted that the Board is entitled to determine jurisdiction or competence suo moto as it did, ensuring that it had the jurisdiction. She relied on Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd (Civil Appeal 50 of 1989) [1989] KECA 48 (KLR) (17 November 1989) (Judgment) case, the locus classicus decision on jurisdiction.
20. It was submitted that the 1st Respondent was bound to determine non joinder of a mandatory party as it did and that there was no denial of a hearing or illegality. Further submission was that the applicant’s grievance is merit based and therefore it does not meet the statutory threshold for Judicial Review. Counsel urged this Court to uphold the decision of the 1st Respondent.
21. In a brief rejoinder, Mr. Abdi submitted that the application is not an appeal disguised as a Judicial Review and that the applicant was challenging the decision-making process. That there was no due process in striking out the request for review as the applicant was not given an opportunity to be heard on the own motion by the Review Board.
Analysis and determination
22. I have considered the application as pleaded and the preliminary objection together with the respective parties’ counsel’s oral submissions. the issues arising for determination are:
i. Whether the application offends the provisions of Order 53 Rules (1) and (2) of the Civil procedure Rules on filing of Judicial Review Proceedings;
ii. Whether there is merit in the application and therefore-
a. Whether the application is an appeal disguised as judicial review;
b. Whether the application discloses grounds for grant of the judicial review orders sought;
iii. What orders should this Court make
23. On whether the application offends Order 53 Rules (1) and (2) of the Civil Procedure Rules, the 2 nd respondent contends and submits that the applicant filed a notice of motion without first seeking and obtaining leave of court as required under Order 53 of the Civil procedure Rules. In response, the respondent’s counsel argued and retracted those applications under section 175 of the PPADA do not require leave of Court and that order 53 of the Civil Procedure Rules is inapplicable to public procurement proceedings. The latter submission was withdrawn when the Court asked counsel for the applicant to indicate which decision of the court he was relying on. That said, since the issue was raised, this court is under a duty to determine it to clarify the issue.
24. Order 53 Rule 1(1), (2) and (3) of the Civil Procedure Rules provides as follows:
1. Applications for mandamus, prohibition and certiorari to be made only with leave [Order 53, rule 1]
(1) No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefor has been granted in accordance with this rule.
(2) An application for such leave shall be made ex parte to a judge in chambers, and shall be accompanied by —
(a) a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought; and
(b) affidavits verifying the facts and averment that there is no other cause pending, and that there have been no previous proceedings in any court between the applicant and the respondent, over the same subject matter and that the cause of action relates to the applicants named in the application.
(3) The judge may, where leave denotes stay, impose such terms as to costs and as to giving security as he thinks fit including cash deposit, bank guarantee or insurance bond from a reputable institution
25. On the other hand, Order 53 Rule 3 (1) stipulates that:
3. Application to be by notice of motion [Order 53, rule 3]
(1) When leave has been granted to apply for an order of mandamus, prohibition or certiorari, the application shall be made within twenty-one days by notice of motion to the High Court, and there shall, unless the judge granting leave has otherwise directed, be at least eight clear days between the service of the notice of motion and the day named therein for the hearing.
26. Order 53 of the Civil Procedure Rules mandates that to apply for judicial review orders of mandamus, prohibition or certiorari, an applicant must first seek and obtain leave of court. Upon such leave being granted, the applicant then files a substantive motion within the timeline of 21 days or such short period as the court may grant. This provision is akin to section 9 of the Law Reform Act which provides that:
9. Rules of court
(1) Any power to make rules of court to provide for any matters relating to the procedure of civil courts shall include power to make rules of court—
(a) prescribing the procedure and the fees payable on documents filed or
issued in cases where an order of mandamus, prohibition or certiorari
is sought;
(b) requiring, except in such cases as may be specified in the rules, that
leave shall be obtained before an application is made for any such order;
27. The requirement for leave to apply for judicial review Orders of certiorari, mandamus and prohibition is under the Law Reform Act and its procedural operational provision Order 53 of the Civil Procedure Rules. The purpose for leave has been stated severally without a number, to be for weeding out frivolous, vexatious and hopeless applications and to ensure that only prima facie arguable applications are allowed to proceed to the substantive stage.
28. In Republic vs. Land Disputes Tribunal Court Central Division and Another Ex Parte Nzioka [2006] 1 EA 321, Nyamu,J (as he then was) held that leave should be granted, if on the material available the court considers, without going into the matter in depth, that there is an arguable case for granting leave and that leave stage is a filter whose purpose is to weed out hopeless cases at the earliest possible time, thus saving the pressure on the courts and needless expense for the applicant by allowing malicious and futile claims to be weeded out or eliminated so as to prevent public bodies being paralysed for months because of pending court action which might turn out to be unmeritorious. See also Republic vs. The P/S Ministry of Planning and National Development Ex Parte Kaimenyi [2006] 1 EA 353.
29. Waki, J (as he then was), on the other hand, in Republic vs. County Council of Kwale & Another Ex Parte Kondo & 57 Others Mombasa HCMCA No. 384 of 1996 put it thus:
“The purpose of application for leave to apply for judicial review is firstly to eliminate at an early stage any applications for judicial review which are either frivolous, vexatious or hopeless and secondly to ensure that the applicant is only allowed to proceed to substantive hearing if the Court is satisfied that there is a case fit for further consideration. The requirement that leave must be obtained before making an application for judicial review is designed to prevent the time of the court being wasted by busy bodies with misguided or trivial complaints or administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived… Leave may only be granted therefore if on the material available the court is of the view, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the applicant the test being whether there is a case fit for further investigation at a full inter partes hearing of the substantive application for judicial review. It is an exercise of the court’s discretion but as always it has to be exercised judicially”.
30. This position was confirmed by the Court of Appeal in Meixner & Another vs. Attorney General [2005] 2 KLR 189 in which the Court held that the leave of the court is a prerequisite to making a substantive application for judicial review and that the purpose of the leave is to filter out frivolous applications hence the granting of leave or otherwise involves an exercise of judicial discretion.
31. The circumstances which guide the grant of leave to apply for judicial review remedies were enumerated in Mirugi Kariuki vs. Attorney General Civil Appeal No. 70 of 1991 [1990-1994] EA 156; [1992] KLR 8 as follows:
“The law relating to judicial review has now reached the stage where it can be said with confidence that, if the subject matter in respect of which prerogative power is exercised is justiciable, that is to say if it is a matter on which the Court can adjudicate, the exercise of the power is subject to review in accordance with the principles developed in respect of the review of the exercise of statutory power…the controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject matter… It is not the absoluteness of the discretion nor the authority of exercising it that matter but whether in its exercise, some of the person’s legal rights or interests have been affected. This makes the exercise of such discretion justiciable and therefore subject to judicial review. In the instant appeal, it is of no consequence that the Attorney General has absolute discretion under section 11(1) of the Act if in its exercise the appellant’s legal rights or interests were affected. The applicant’s complaint in the High Court was that this was so and for that reason he sought leave of the court to have it investigated. It is wrong in law for the Court to attempt an assessment of the sufficiency of an applicant’s interests without regard to the matter of his complaint. If he fails to show, when he applies for leave, a prima facie case, on reasonable grounds for believing that there has been a failure of public duty, the Court would be in error if it granted leave. The curb represented by the need for the applicant to show, when he seeks leave to apply, that he has a case, is an essential protection against abuse of the legal process. It enables the Court to prevent abuse by busybodies, cranks and other mischief-makers… In this appeal, the issue is whether the appellant in his application for leave to apply for orders of certiorari and mandamus demonstrated to the High Court a prima facie case for the grant of those orders. Clearly, once breach of the rules of natural justice was alleged, the exercise of discretion by the Attorney General under section 11(1) of the Act was brought into question. Without a rebuttal to these allegations, the appellant certainly disclosed a prima facie case. For that, he should have been granted leave to apply for the orders sought.”
32. In R vs. Communications Commission of Kenya & 2 Others Ex Parte East Africa Televisions Network Ltd. Civil Appeal No. 175 of 2000 [2001] KLR 82; [2001] 1 EA 199, the Court of Appeal was of the view that leave should be granted if, on the material available, the Court considers, without going into the matter in depth, that there is an arguable case for granting leave.
33. In Re Bivac International SA (Bureau Veritas) [2005] 2 EA 43 (HCK), the Court stated:
“Application for leave to apply for orders of judicial review are normally ex parte and such an application does restrict the Court to threshold issues namely whether the applicant has an arguable case, and whether if leave is granted, the same should operate as a stay. Whereas judicial review remedies are at the end of the day discretionary, that discretion is a judicial discretion and, for this reason a court has to explain how the discretion, if any, was exercised so that all the parties are aware of the factors which led to the exercise of the Court’s discretion. There should be an arguable case which without delving into the details could succeed and an arguable case is not ascertained by the court by tossing a coin or waving a magic wand or raising a green flag, the ascertainment of an arguable case is an intellectual exercise in this fast growing area of the law and one has to consider without making any findings, the scope of the judicial review remedy sought, the grounds and the possible principles of administrative law involved and not forget the ever expanding frontiers of judicial review and perhaps give an applicant his day in court instead of denying him…. ...Although leave should not be granted as a matter of routine, where one is in doubt one has to consider the wise words of Megarry, J in the case of John vs. Rees [1970] Ch 345 at 402. In the exercise of the discretion on whether or not to grant stay, the court takes into account the needs of good administration.”
34. The Supreme Court affirmed the position that where a party approaches the High Court under Order 53 of the Civil Procedure Rules and sections 8 and 9 of the Law Reform Act, they must first seek and obtain leave before filing the substantive Notice of Motion. The apex Court stated as follows in Petition No. 20 of (E023) 2022, Isaac Aluoch Polo Aluochier v IEBC and 17 others:
“[33] Rejecting the appellant’s application to review by quashing this decision, the High Court agreed and upheld the reasons and conclusions by the Committee for dismissing the complaint. It also found that the application, though constitutional, sought judicial review reliefs and ought to have been commenced in accordance with the relevant rules. [34] The Court of Appeal, on a second challenge affirmed this determination, answering the two issues framed by the High Court; whether the application was competent and whether the Committee had jurisdiction to determine the dispute before it. It appears to us that the ratio emanating from the High Court decision was around, the nature and scope of judicial review; the doctrine of sub-judice; and the jurisdiction of the Committee.
[33] Rejecting the appellant’s application to review by quashing this decision, the High Court agreed and upheld the reasons and conclusions by the Committee for dismissing the complaint. It also found that the application, though constitutional, sought judicial review reliefs and ought to have been commenced in accordance with the relevant rules. [34] The Court of Appeal, on a second challenge affirmed this determination, answering the two issues framed by the High Court; whether the application was competent and whether the Committee had jurisdiction to determine the dispute before it. It appears to us that the ratio emanating from the High Court decision was around, the nature and scope of judicial review; the doctrine of sub-judice; and the jurisdiction of the Committee. 14 Petition No. 20 of (E023) 2022 [35] On the first question, the learned Judge rendered this statement; “33. What then is the procedure for bringing Judicial Review application? The submission by Mr. Aluochier that this application is under Article 47 of the Constitution and therefore not subject to Order 53 Civil Procedure Rules and Section 8 and 9 of the Law Reform Act cannot hold water. Judicial Review is a special jurisdiction. In so far as no rules have been made under Article 47 of the Constitution, there can be no vacuum in law. A party approaching court for Judicial Review orders of Certiorari, Mandamus and Prohibition must comply with the procedure under Order 53 of the Civil Procedure Rules. He must seek the court’s leave first through a Chamber Summons Application supported by a Statement of Facts and a Verifying Affidavit and annexures in support of the prayers. In this case, the applicant should have annexed the impugned decision. It is after grant of leave, that an applicant is allowed to file the Notice of Motion application within 21 days. Seeking of leave is meant to expedite the process and weed out any frivolous applications. 34.The applicant has done none of that. What is before the court is neither a Judicial Review application nor a Petition. If the applicant wanted to file a Petition to seek any Constitutional remedies available including Judicial Review orders, he should have done so under the rules under the Constitution (Mutunga Rules). Article 23 (3) of the Constitution outlines the remedies a person can seek in a Constitutional Petition which includes Judicial Review orders. If it was a petition, then the applicant would have not needed to seek leave of court to file the petition.”
[36] Reference in this passage to Articles 23 and 47 of the Constitution is only in relation to the scope of judicial review in terms of the Constitution, a totally different cause from the initial complaint before the Committee, where Articles 193(1)(b) and 194 (1) (e), among others, were alleged to have been breached.”
35. What emerges clearly from the foregoing decisions is that where an applicant approaches the Court under the Law Reform Act and Order 53 Rule 1(1) of the Civil Procedure Rules, then they must first seek leave to apply for substantive judicial review orders stipulated in Order 53 and such leave may only be granted if on the material available, the court is of the view, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the applicant, the test being whether there is a case fit for further investigation at a full inter partes hearing of the substantive application for judicial review.
36. However, where an applicant approaches the Court under the Constitution, the Fair Administrative Action Act and the Rules enacted in October 2024 operationalizing the Act, then the requirement for leave is absent. Such an applicant only needs to file an Originating Motion as stipulated in Rule 11 of the Fair Administrative Action Rules, 2024, seeking for appropriate judicial review orders, save that such proceedings, other than Public Procurement proceedings which have a timeline of 45 days for determination, have to be determined within 90 days of the date of filing into court.
37. The relevant provisions of the Fair Administrative Action Act and Rules state as follows:
S.7. Institution of proceedings.
(1) Any person who is aggrieved by an administrative action or decision may apply for review of the administrative action or decision to (a) a court in accordance with section 8; or
(b) a tribunal in exercise of its jurisdiction conferred in that regard under any written law.
8. Period for determination of applications and appeals.
An application for the review of an administrative action or an appeal under this Act shall be determined within ninety days of filing the application.
9. Procedure for judicial review.
(1) Subject to subsection (2), a person who is aggrieved by an administrative action may, without unreasonable delay, apply for judicial review of any administrative action to the High Court or to a subordinate court upon which original jurisdiction is conferred pursuant to Article 22(3) of the Constitution.
38. None of the above substantive provisions of the Fair Administrative Action Act mandate that leave to apply for judicial review must be sought and obtained. All that the applicant needs to do is apply for judicial review but without unreasonable delay. The Rules made under the Act provide for the procedure for applying for judicial review as follows, under Rule 11:
R.11. Originating motion
(1) An application for judicial review shall be by way of an originating motion accompanied by a supporting affidavit.
(2) The Originating Motion shall substantially be in Form JR 2 as set out in the Schedule.
(3) The claim shall—
(a) set out the name and description of the applicant;
(b) state the relief sought and the grounds on which it is sought;
(c) contain a statement that internal mechanisms for appeal or review and any remedy available under any other written law have been exhausted;
(d) state the administrative action or decision complained of or the date it was taken;
(e) state the person who took the administrative action or decision;
(f) state the reason for the administrative action or decision, if any; and
(g) state the reason the applicant thinks the administrative action or decision was not in accordance with the Act.
39. The Schedule to the aforesaid Rules provides for the format that the Originating motion shall take, but the Rule from a plain reading, is akin to a statutory statement which is required to be filed under Order 53 Rule 1 (2) of the Civil Procedure Rules which stipulates:
(2) An application for such leave shall be made ex parte to a judge in chambers, and shall be accompanied by —
(a) a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought ; and
(b) affidavits verifying the facts and averment that there is no other cause pending, and that there have been no previous proceedings in any court between the applicant and the respondent, over the same subject matter and that the cause of action relates to the applicants named in the application.
40. On the other hand, it is important to note that the Fair Administrative Action Act is an implementing Act for Article 47 of the Constitution which guarantees the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
41. The Fair Administrative Action Act does not repeal the Law Reform Act and its implementing Rules made pursuant to section 9 (1) (b) of the Act which is Order 53 of the Civil Procedure Rules and which Rules mandate leave to be sought and obtained before filing an application for substantive orders by way of notice of motion for judicial review. In that regard, section 12 of the FAAA provides:
12. Principles of common law and rules of natural justice.
This Act is in addition to and not in derogation from the general principles of common law and the rules of natural justice
42. It is common knowledge that the Law Reform Act is derived from common law practices. Based on the above position, it is clear to this Court that there is no requirement for leave to apply, where a party seeks for judicial review purely under Articles 47 and 50(1) of the Constitution as well as the Fair Administrative Action Act and the Rules made thereunder. Further, judicial review being a constitutional remedy, and now with the Rules made under the Fair Adminis
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