Applicants’ case
1. By a motion dated 10 September 2024, the applicants initiated judicial review proceedings against the respondents seeking a declaration that the privately initiated proposal for development and operation of Jomo Kenyatta International Airport (hereinafter “the Adani proposal”) submitted in March 2024 by Adani Airports Holdings Limited (also referred to hereinafter as simply “Adani”), violates articles 10, 27 and 201 of the Constitution and is, therefore, a nullity. The other judicial review reliefs they have sought against the respondents are orders for prohibition, certiorari and mandamus.
2. The order for prohibition is sought to restrain the respondents or their agents, or any other person for that matter, from implementing or further implementing or acting on the Adani proposal for the development and operation of Jomo Kenyatta International Airport (or “JKIA”) submitted in March 2024 by Adani Airport Holdings Ltd. They seek the order of certiorari to bring to this Honourable Court and quash the Adani proposal for development and operation of Jomo Kenyatta International Airport submitted in March 2024 by Adani Airport Holdings Ltd while the order of mandamus is sought for the Court to direct Kenya Airports Authority, the 1st respondent in this suit, to supply the applicants with the information sought in applicants’ letters respectively dated 23 July 2024 and 1 August 2024 within 14 days of the Court’s order.
3. The application is based on a statutory statement dated 9 September 2024 and a verifying affidavit sworn on even date by Davis Malombe, verifying the facts relied upon.
4. According to Malombe, in July 2024, the applicants learned, from a source he has described as “a whistle blower accounts”, about an ongoing plan to sell Jomo Kenyatta International Airport, a profitable and strategic national asset built in 1978, to Adani and its subsidiaries. The sale is said to be illegal because it is without consideration, and besides the risk with which it is fraught, the sale is at unaffordable cost to the taxpayer.
5. The applicants were concerned about this transaction which, in their opinion, was illegal. They, therefore, wrote to Jomo Kenyatta International Airport seeking the following information:
a. Copies of all correspondence and minutes of all meetings held by KAA on the deal particularly the correspondence with Adani Group and with the Public Private Partnership Committee;
b. Information on how Adani Group was procured for the deal;
c. Information on how ALG: Global was procured as transaction advisor;
d. A copy of the feasibility study or report on the financial sustainability of the deal by ALG the transaction advisor;
e. A copy of the contract between KAA and ALG: Global;
f. A copy of the project proposal or contract between KAA and Adani Group;
g. Justification why the project is not suitable for open competitive procurement;
h. A preliminary operating plan for the proposed project;
i. A copy of the letter submitting the Adani proposal to the PPP Directorate for assessment and approval; and,
j. Evidence of Adani’s payment of zero-point-five per cent of the estimated project cost or fifty thousand United States dollars, whichever is lower.
6. The applicants’ quest for this information was anchored on article 35(1) and (3) of the Constitution and section 4 of the Access to Information Act, 2016. Nevertheless, their efforts were rendered fruitless as JKIA did not provide the information sought.
7. The applicants contest the concession of Jomo Kenyatta International Airport to the Adani and its subsidiaries for 30 years. It is their position that Kenya can independently raise the estimated 1.85 Billion USD or 238 Billion Kenya Shillings needed to expand JKIA without leasing JKIA for 30 years. Thus, the Adani proposal is unaffordable; it threatens job losses; and has a disproportionate aggregated fiscal risk exposure to the public without offering any value for money to the taxpayer.
8. In the applicants’ view, leasing the strategic and profitable JKIA to a private entity is irrational under article 47 of the Constitution and violates the principles of good governance, accountability, transparency, and prudent and responsible use of public money under articles 10 and 201 of the Constitution.
9. In any event, Adani submitted the proposal on 1 March 2024, yet the Cabinet only approved the National Aviation Policy and the JKIA Medium-Term Investment Plan on 11 June 2024, some three months later. The timing of the proposal, it is contended, points to a possible collusion between the respondents to tip off and give a head start to Adani on the planned expansion of JKIA contrary to Article 10 of the Constitution on good governance.
10. Even then, the 1st respondent is alleged to have violated section 41 of the Public Private Partnerships Act (or “PPPA”) cap. 430 by commencing to evaluate the Adani proposal before due diligence despite the assurance given to the public on 24 July 2024 by the 1st respondent that the Adani proposal “would be subjected to technical, financial, and legal review” in compliance with the PPPA. Beside KAA, Honourable Musalia Mudavadi, the Prime Cabinet Secretary, confirmed on 30 July 2024, that the Adani proposal was undergoing “requisite due process, reviews, and negotiations”.
11. Notwithstanding these assurances, on 2 September 2024, officers from Adani were spotted at JKIA conducting a stock- taking exercise at the airport and on 4 September 2024, Dr. Alfred Mutua, the Cabinet Secretary for Labour and Social Protection met aviation workers at JKIA to persuade them to take up the proposal to hand over their job contracts to Adani.
12. Malombe has sworn that Adani’s corporate and governance history is riddled with investigations for corruption, bribery, and human rights abuses worldwide. For example, in 2011, the Parliamentary Ombudsman of the Indian State of Karnataka investigated Adani for corruption, concerning the illegal export of 7.7 million tons of iron ore.
13. Adani’s proposal, it is sworn, is unaffordable and offers no value for money. Kenya would surrender the operational and profitable JKIA to Adani for 30 years (in exchange for 1.85 Billion USD equivalent to 238 Billion Kenya Shillings). In the applicants’ estimation, Kenya can afford to raise 238B without leasing the airport to Adani for 30 years. If Adani’s proposal is taken on board, it would deprive the public of and transfer to Adani all the current revenues, receipts, expenditures, and other financial transactions over JKIA. Although the project is dubbed a Built-Operate Transfer, KAA would be handing over an existing and operational airport to Adani.
14. According to the proposed scheme, Adani is not obligated to build a new runway because according to its proposal, the runway is sufficient until 2048 and would only need a few rapid exits, parallel taxiways, and runway entry taxiways. Yet At the end of these 30 years, Adani would, in perpetuity, retain an 18% equity stake in the aeronautical business at JKIA. Thus, after 30 years, Adani would be entitled to 18% a concession fee starting at 6 Billion Kenya Shillings and increasing by 10% every five years forever. In this way, the Adani proposal violates Article 201(c) of the Constitution which demands that the burden and benefits of the use of resources and public borrowing must be shared equitably between present and future generations.
15. That notwithstanding, the Adani proposal forbids KAA from building a competing facility (that is, any airport or aerodrome within a 150-kilometre radius of JKIA) for 30 years. The proposal also disproportionately transfers the aggregated fiscal risk and contingent liabilities to KAA; with Adani bearing no or minimal risk. Thus, the proposal would leave KAA worse off.
16. It is the applicants’ contention that the proposal, thus, violates section 40(2)(f) of the PPPA and article 201 of the Constitution which demand value for money and an efficient transfer of risk from the public sector.
17. According to the impugned proposal, Adani would also acquire nearly 30 acres of unencumbered land next to JKIA for airport property investment and development business. Besides, the proposal entitles Adani to operate tax-free for 10 years, import labour, and obtain free work visas, thus depriving Kenyan workers of their livelihood, contrary to Articles 26, 41, and 43 of the Constitution.
18. At the time of filing the application, KAA had a 31 October 2024 deadline to meet the conditions for the concession. On 30 August 2024, Adani incorporated Airports Infrastructure PLC as a Kenyan subsidiary to take over the JKIA. The same week, Adani conducted a stock-taking exercise at JKIA. At the same time, KAA officials visited Adani headquarters in India indicating that the Adani deal was imminent.
Preliminary objection and respondents’ case
19. The 1st respondent objected to the hearing of the suit by way of a preliminary objection dated 7 October 2024. The objection was based on the grounds that the jurisdiction to hear and determine any complaint arising from a privately initiated proposal lies with the Petition Committee established under Section 75 of the Public Private Partnerships Act.
20. It is also the 1st respondent’s position that the application violates provisions of Section 75 of the Public Private Partnerships Act, 2021. Under section 75(1), the Act establishes the Petition Committee with jurisdiction to hear and determine any petitions regarding the decisions of the Public Private Partnership Committee, the Directorate of Public Private Partnerships or a contracting authority. Section 75(2)- (7) provides an elaborate process of challenging the decision of a contracting authority before the Petition Committee. Section 75(8) provides that an appeal from the decision of the Petition Committee shall be lodged in this Honourable Court.
21. The 1st respondent contends that the applicants have failed to exhaust the dispute resolution mechanism stipulated in the law and, therefore, this Honourable Court lacks jurisdiction to hear and determine this matter.
22. The 2nd to 5th respondents filed grounds of objection in response to the application. The grounds are more or less in the same terms as the grounds in the 1st respondent’s preliminary objection.
23. In addition to what the 1st respondent has stated, the 2nd to 5th respondents have cited the Court of Appeal decision in the Speaker of the National Assembly v James Njenga Karume (1992) eKLR) on the exhaustion of the review and appellate mechanisms. They have also pleaded that the respondents are private entities and that the orders of judicial review sought against the respondents’ privately-initiated proposal dated 1st March 2024 cannot issue.
24. It is also contended on behalf of the 2nd and 5th respondents that the Adani proposal is under negotiations and due diligence stage in compliance with the provisions of Public Private Partnerships Act. The orders sought to declare the privately initiated proposal as a nullity or prohibit the parties from proceeding with the project as set out in the Act are premature and without basis. Again, there is no jurisdiction to issue a declaration in the circumstances of the case or at all.
25. Judicial review remedies, it is urged, are discretionary and the court ought not to exercise its discretion in the applicants' favour having regard to the facts. In particular, Mandamus is not available to the applicants in view of Article 35 of the Constitution; and, certiorari and prohibition are employed primarily to control decision makers. According to the 2nd to 5th respondents, these reliefs lie in cases of excess of jurisdiction, error on the face of the record and exceptional circumstances. They cannot issue to stop a process initiated in accordance with the law.
26. Besides the preliminary objection, the 1st respondent filed a replying affidavit sworn by Henry Ogoye who introduced himself in the affidavit as the 1st respondent’s acting managing director and chief executive officer. He has sworn that the Kenya Airports Authority is a State Corporation established under the Kenya Airports Authority Act, cap. 395 and that under Section 12 of the Act, it is mandated to, inter alia; construct, operate and maintain aerodromes and other related facilities; construct or maintain aerodromes on an agency basis on the request of any Government department; and, provide such other amenities or facilities for passengers and other persons making use of the services or the facilities provided by the 1st respondent as may appear to the Board of the 1st respondent as necessary or desirable.
27. As far the privately initiated proposal by the 5th respondent is concerned, it is deposed that its consideration is consistent and aligned with Kenya's public policy of expansion and modernization of Jomo Kenyatta International Airport (JKIA) as a strategic infrastructure and as the regional gateway of choice. Currently, JKIA is facing a capacity crisis and is in urgent need of investment to meet increasing demand and retain its competitive edge. Further, the 1st respondent has complied with the Constitution and the Act in consideration of the proposal.
Cancellation of the Adani Proposal
28. More pertinent to this ruling is the 1st respondent’s further affidavit sworn by Nicholas Bodo on 5 May 2025. Like Ogoye, Bodo has sworn that he is the acting managing director and chief executive officer of the 1st respondent. The assumption is that Bodo must have taken over from Ogoye as the managing director and chief executive officer of the 1st respondent.
29. Ogoye has sworn that he is aware that the 5th Respondent submitted to the 1st Respondent a privately initiated proposal for the development, expansion and operation of the Jomo Kenyatta International Airport. He has been informed by the 1st respondent’s counsel, which information he verily believes to be true, that section 6 of the Public Procurement Private Partnership Act provides at Section 6 that the functions of the Public Private Partnerships Committee include approving the cancellation of procurements or termination of project agreements.
30. At its 51st Ordinary Public Private Partnership Committee meeting, the Committee approved the cancellation request subject to the approval of the Attorney General. The Attorney General approved the cancellation of the Adani proposal and by a letter dated 26 February 2025, the 1st respondent informed the 5th respondent of the approval and cancellation of the proposal by the 5th respondent.
31. The 1st respondent’s letter cancelling the proposal reads as follows:
“KAA/13/10/2 VOL. 1 (73)
26th February, 2025 Mr. Alok Patni
Adani Airport Holdings Ltd,
Commerce House 6, 80ft Corporate Road, Off.SC Highway Next to SNP Global House Prahalad Nagar
Ahmedabad Gujarat, 380051, India alok.gatn i@adani.com
Dear Sir,
RE: CANCELLATION OF THE PUBLIC PRIVATE PARTNERSHIP PROJECT FOR THE CONSTRUCTION OF A NEW PASSENGER TERMINAL BUILDING AND ASSOCIATED WORKS AT THE JOMO KENYATTA INTERNATIONAL AIRPORT (JKIA)
We refer to our letter Ref: KAA/13/10/2 VOL. 1 (42) dated 8th August 2024, along with prior correspondence concerning the above-referenced project.
We wish to inform you that the Public-Private Partnership Committee (PPPC) approved the cancellation of the PPP project for the construction of a new passenger terminal building at Jomo Kenyatta International Airport in line with Section 62 of the Public Private Partnership (PPP) Act 2021. The decision follows an assessment of the project, during which it was determined that the project does not meet the public interest criteria due to material governance concerns that have arisen during the procurement process.
We further take note that the Heads of Terms gives KAA the right to terminate negotiations in connection with the project.
Yours Sincerely,
Signed,
Nicholas Bodo
Ag. Managing Director/CEO”
32. The introduction of this letter into these proceedings is against the background that on 17 December 2024 when the matter was scheduled for highlighting of submissions on the 1st respondent’s preliminary objection and the application to set aside conservatory orders. Mr. Chebon, the learned counsel holding brief for Mr. Otieno for the 2nd applicant informed the court that he was not ready to proceed with the matter because, earlier, in his presidential address to the nation, the President of the Republic of Kenya had cancelled the Adani contract. Mr. Chebon wanted documentary evidence from the respondents that indeed the Adani deals had been cancelled so that he could advise his clients accordingly. He also wanted proof of the costs expended in the Adani deals. He suggested that the 1st respondent be granted time to present the necessary documentation.
33. Ms. Oduor, the learned counsel holding brief for Mr. Ochieng Oduol for the 1st respondent confirmed that the 1st respondent was in the process of formalisation of the cancellation of the privately initiated proposal following the address by the Head of State on 2 December 2024. The 1st respondent’s Board had approved the cancellation on 2 December 2024 but that the approval was subject to the approval of Ministry of Finance and the Ministry of Transport. It was also subject to the approval of the Private Public Partnership Directorate which met on 11 December 2024.
34. Counsel informed the court that the necessary documentation was to be concluded by the end of December 2024. Accordingly, counsel had no objection to the mater being adjourned to enable her file the necessary documents on the status of the 5th respondent’s privately initiated proposal after which the applicants would consider whether they were still intent on proceeding with their case.
35. The matter was adjourned to 6 March 2025. On this date, the court was informed that the 1st respondent’s further affidavit on which a copy of the 1st respondent’s letter had been exhibited had been filed. Despite this development, the applicants’ counsel insisted that the case proceeds to its logical conclusion since the 1st respondent’s letter did not render it moot. It is against this background that the court directed that parties proceed to highlight their submissions on the preliminary objection and the application to set aside the conservatory orders. The court also directed that, assuming the suit was properly before court, parties were to submit on whether it had been rendered moot in the wake of the cancellation of the Adani proposal.
36. This ruling is primarily on the 1st respondent’s preliminary objection and, depending on the answer to that question, whether the suit has been rendered moot.
1st respondent’s submissions
37. In prosecution of the 1st respondent’s preliminary objection, it has been submitted that this court lacks jurisdiction to entertain this suit because the applicants have ignored, circumvented or failed to pursue and exhaust alternative dispute resolution mechanisms relating to grievances under the Private Partnership Act, 2021 as provided for under Section 75(4) of the Act. According to the provisions of section 75, a petition committee is seized of the jurisdiction to hear and determine petitions against public private partnership committee decisions and this Honourable Court is only seized of jurisdiction to entertain appeals from the petition committee.
38. It is submitted on behalf of the 1st respondent that the issue in contention in these proceedings is the decision of the 1st respondent, as a contracting authority, to consider the privately initiated proposal of the 5th respondent. This is said to fall within the jurisdiction of the Petition Committee as provided in Section 75(1) of the Act.
39. In this submission, the 1st respondent has invoked the doctrine of exhaustion and cited Speaker of National Assembly vs Karume (1992) KLR 21 where the Court of Appeal applied this doctrine and stated as follows:
“Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure followed by any law must be strictly adhered to since there are good reasons for such special procedures”.
40. In the same breath, the 1st respondent relied on Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others (2015) eKLR where, again, the Court of Appeal reiterated that where a dispute resolution mechanism exists outside courts, the same must be exhausted before the jurisdiction of the Court is invoked.
41. This doctrine has a statutory backing in section 9 (2) and (3) of the Fair Administrative Actions Act which states as follows:
(2) The High Court or a Subordinate Court under sub section (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.
(3) The High Court or a Subordinate Court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that the applicant shall first exhaust such remedy before instituting proceedings under sub-section (1).
42. Under section 9(4), on an application by the applicant, one may be exempted from exhausting the internal mechanisms for appeal or review in exceptional circumstances before invoking the jurisdiction of the court. It is urged that in the applicant’s case, no application for exemption has been filed before this Court prior to the filing of the application for leave or the substantive motion; and, even if the same had been filed, no exceptional circumstances have been shown to exist as to merit an order for exemption.
43. That notwithstanding, the 1st respondent cited the case of Nicholus v Attorney General & 7 others (2023) KESC 113 (KLR) where, in interpreting section 9(2) of the Fair Administrative Action Act, the Supreme Court endorsed a “nuanced approach” in safeguarding a litigant’s right to access to justice but at the same time embracing the efficiency and specificity of the alternative dispute resolution mechanisms.
44. The 1st respondent has also relied on the Court of Appeal decision in Capital Markets Authority v. Jonathan Ciano & Uchumi Supermarkets(2023) KECA 581(KLR) (para 28) where the Court held that where proceedings for judicial review offend the doctrine of exhaustion, the Court ought to decline to exercise its jurisdiction.
45. The 1st respondent urges that having failed to approach the petition committee to address its grievances or, having failed to seek exemption from exhausting the remedies available under the Act, these proceedings are an abuse of the court process. It does not matter that the applicant seeks a declaration that articles 10, 27 and 201 of the Constitution have been violated; the applicants were still enjoined to exhaust the statutory remedies or seek exemption from exhausting those remedies.
46. The case of Okiya Omtata Okoiti Vs The Accounting Officer Kenya Electricity Generating Company PLC and Others Petition (2023) 567 (KLR) was cited where the petitioner was held to have by-passed the prescribed procedure in the Public Procurement and Asset Disposal Act, 2015. In that case, the court held, inter alia, that where there exist ample statutory avenues for resolution of a dispute, the constitutional court will defer to the statutory options and decline to entertain such a dispute.
47. For the same argument, the 1st respondent relied on Gabriel Mutava & 2 others v Managing Director Kenya Ports Authority & another (2016) eKLR. Here, the court held, inter alia, that where there exists other sufficient and adequate avenue to resolve a dispute, a party ought not to trivialize the jurisdiction of the Constitutional Court by bringing actions that could very well and effectively be dealt with in that other forum.
1st respondent’s submissions on mootness
48. As far as the question of mootness of the suit is concerned, the 1st respondent anchored its arguments on the further affidavit of Nicholas Bodo sworn on 5 March 2025 and reiterated that following the institution of multiple cases challenging the Adani proposal on the development and operation of Jomo Kenyatta International Airport and “a robust public discourse”, the 1st respondent’s Board convened a special meeting on 2 December 2024, and resolved to cancel consideration of the Adani proposal.
49. In short, the cancellation of the proposed Public-Private Partnership agreement with Adani Airport Holdings Ltd for the development and management of Jomo Kenyatta International Airport, which agreement was the subject of the challenge, has rendered the suit purely academic, as there is no longer a live controversy requiring adjudication by this Honourable Court.
50. In view for these developments, the 1st respondent has urged that the case is moot and, to that end, it has been urged that mootness occurs when the issue in a court case is no longer relevant or capable of being resolved, usually because the circumstances that gave rise to the dispute have changed or ended.
51. For a court to hear a case, there must be a current and live controversy, ensuring that any decision made will have a meaningful impact on the parties involved. On this particular point, the 1st respondent has relied on Okiya Omtatah Okoiti & 2 others v Attorney General & 4 others [2020] KECA 589 (KLR) (at para 6) where the court cited Mativo, J. as he then was in Daniel Kaminja & 3 others (suing as Westland Environment Caretaker Group) vs County Government of Nairobi [2019] e KLR; the learned judge held that:
“A matter is moot if further legal proceedings with regard to it can have no effect, or events have placed it beyond the reach of the law. Thereby the matter has been deprived of practical significance or rendered purely academic. Mootness arises when there is no longer an actual controversy between the parties to a court case and any ruling by the court would have no actual practical impact”.
And
“No court of law will knowingly act in vain … a Suit is academic where it is merely theoretical, makes empty sound and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it is not related to practical situations of human nature and humanity.”
52. For the same argument, counsel for the 1st respondent cited the Supreme Court in Institute for Social Accountability & Another v. National Assembly & 3 Others [2022] KESC 39 (KLR); Dande & 3 Others v. Inspector General, National Police Service & 5 Others [2023] KESC 40 (KLR); and, Kenya Railways Corporation & 2 others v Okoiti &3 others [2023] KESC 38 (KLR). In this latter case the court held, inter alia, that the doctrine of mootness enquires whether events subsequent to the filing of a suit would have eliminated the controversy between the parties.
53. The other Supreme Court decision which the 1st respondent relied upon is that of Cabinet Secretary for the National Treasury and Planning & 4 others v Okoiti & 52 others; Bhatia (Amicus Curiae) [2024] KESC 63 (KLR) particularly at paragraphs 188-190 where he Court reiterated that the doctrine of mootness serves to preserve the judicial economy and ensure that courts confine themselves to disputes where actual rights and obligations of parties are at stake.
54. Against this legal and factual background, the 1st respondent submits that this matter has been overtaken by events and is, therefore, an academic exercise. This is because the core issue, which is whether the Privately Initiated Proposal by Adani Airport Holdings Ltd for the concession of JKIA violated constitutional and statutory requirements, has been rendered moot by the formal cancellation of the proposal. There is no longer a live controversy for this Court to resolve.
55. The original dispute over whether the respondents acted lawfully in considering and progressing the Adani proposal now relates to a process that has been abandoned and extinguished. As such, continued proceedings on this application serve no practical or legal purpose.
56. That notwithstanding, the 1st respondent has acknowledged and submitted that courts may, in limited circumstances, depart from the doctrine of mootness where the matter, although no longer live, raises issues of great public importance or where the dispute is capable of repetition but evading judicial review. The Supreme Court in Institute for Social Accountability & Another v National Assembly & 3 Others (supra) recognised this exception and approved the principle from the South African case of AAA Investments (Pty) Ltd v Micro-Finance Regulatory Council & Another 2007 (1) SA 343 (CC), where it was held that a court may determine a technically moot matter if the issue remains unsettled and is of critical importance to the operation of government.
57. But in National Assembly & Another v Okoiti & 55 Others [2024] KECA 876 (KLR), the discretion to entertain moot cases is limited to instances where a purely legal issue arises, requiring no factual analysis, and where a determination would have clear practical or jurisprudential impact. This position was upheld in the South African case of Independent Electoral Commission v Langeberg Municipality 2001 (3) SA 925 (CC), where it was held that a court may only entertain a moot matter if any order issued would have a tangible effect on the parties or others.
58. And in National Assembly & Another v Okoiti & 55 Others [2024] KECA 876 (KLR), the Court of Appeal articulated the proper approach to determining whether a suit should be dismissed on grounds of mootness and in this regard, the court adopted a two-step analysis. The first step is to consider whether the tangible and concrete dispute between the parties has ceased to exist; and, secondly,
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1. By a motion dated 10 September 2024, the applicants initiated judicial review proceedings against the respondents seeking a declaration that the privately initiated proposal for development and operation of Jomo Kenyatta International Airport (hereinafter “the Adani proposal”) submitted in March 2024 by Adani Airports Holdings Limited (also referred to hereinafter as simply “Adani”), violates articles 10, 27 and 201 of the Constitution and is, therefore, a nullity. The other judicial review reliefs they have sought against the respondents are orders for prohibition, certiorari and mandamus.
2. The order for prohibition is sought to restrain the respondents or their agents, or any other person for that matter, from implementing or further implementing or acting on the Adani proposal for the development and operation of Jomo Kenyatta International Airport (or “JKIA”) submitted in March 2024 by Adani Airport Holdings Ltd. They seek the order of certiorari to bring to this Honourable Court and quash the Adani proposal for development and operation of Jomo Kenyatta International Airport submitted in March 2024 by Adani Airport Holdings Ltd while the order of mandamus is sought for the Court to direct Kenya Airports Authority, the 1st respondent in this suit, to supply the applicants with the information sought in applicants’ letters respectively dated 23 July 2024 and 1 August 2024 within 14 days of the Court’s order.
3. The application is based on a statutory statement dated 9 September 2024 and a verifying affidavit sworn on even date by Davis Malombe, verifying the facts relied upon.
4. According to Malombe, in July 2024, the applicants learned, from a source he has described as “a whistle blower accounts”, about an ongoing plan to sell Jomo Kenyatta International Airport, a profitable and strategic national asset built in 1978, to Adani and its subsidiaries. The sale is said to be illegal because it is without consideration, and besides the risk with which it is fraught, the sale is at unaffordable cost to the taxpayer.
5. The applicants were concerned about this transaction which, in their opinion, was illegal. They, therefore, wrote to Jomo Kenyatta International Airport seeking the following information:
a. Copies of all correspondence and minutes of all meetings held by KAA on the deal particularly the correspondence with Adani Group and with the Public Private Partnership Committee;
b. Information on how Adani Group was procured for the deal;
c. Information on how ALG: Global was procured as transaction advisor;
d. A copy of the feasibility study or report on the financial sustainability of the deal by ALG the transaction advisor;
e. A copy of the contract between KAA and ALG: Global;
f. A copy of the project proposal or contract between KAA and Adani Group;
g. Justification why the project is not suitable for open competitive procurement;
h. A preliminary operating plan for the proposed project;
i. A copy of the letter submitting the Adani proposal to the PPP Directorate for assessment and approval; and,
j. Evidence of Adani’s payment of zero-point-five per cent of the estimated project cost or fifty thousand United States dollars, whichever is lower.
6. The applicants’ quest for this information was anchored on article 35(1) and (3) of the Constitution and section 4 of the Access to Information Act, 2016. Nevertheless, their efforts were rendered fruitless as JKIA did not provide the information sought.
7. The applicants contest the concession of Jomo Kenyatta International Airport to the Adani and its subsidiaries for 30 years. It is their position that Kenya can independently raise the estimated 1.85 Billion USD or 238 Billion Kenya Shillings needed to expand JKIA without leasing JKIA for 30 years. Thus, the Adani proposal is unaffordable; it threatens job losses; and has a disproportionate aggregated fiscal risk exposure to the public without offering any value for money to the taxpayer.
8. In the applicants’ view, leasing the strategic and profitable JKIA to a private entity is irrational under article 47 of the Constitution and violates the principles of good governance, accountability, transparency, and prudent and responsible use of public money under articles 10 and 201 of the Constitution.
9. In any event, Adani submitted the proposal on 1 March 2024, yet the Cabinet only approved the National Aviation Policy and the JKIA Medium-Term Investment Plan on 11 June 2024, some three months later. The timing of the proposal, it is contended, points to a possible collusion between the respondents to tip off and give a head start to Adani on the planned expansion of JKIA contrary to Article 10 of the Constitution on good governance.
10. Even then, the 1st respondent is alleged to have violated section 41 of the Public Private Partnerships Act (or “PPPA”) cap. 430 by commencing to evaluate the Adani proposal before due diligence despite the assurance given to the public on 24 July 2024 by the 1st respondent that the Adani proposal “would be subjected to technical, financial, and legal review” in compliance with the PPPA. Beside KAA, Honourable Musalia Mudavadi, the Prime Cabinet Secretary, confirmed on 30 July 2024, that the Adani proposal was undergoing “requisite due process, reviews, and negotiations”.
11. Notwithstanding these assurances, on 2 September 2024, officers from Adani were spotted at JKIA conducting a stock- taking exercise at the airport and on 4 September 2024, Dr. Alfred Mutua, the Cabinet Secretary for Labour and Social Protection met aviation workers at JKIA to persuade them to take up the proposal to hand over their job contracts to Adani.
12. Malombe has sworn that Adani’s corporate and governance history is riddled with investigations for corruption, bribery, and human rights abuses worldwide. For example, in 2011, the Parliamentary Ombudsman of the Indian State of Karnataka investigated Adani for corruption, concerning the illegal export of 7.7 million tons of iron ore.
13. Adani’s proposal, it is sworn, is unaffordable and offers no value for money. Kenya would surrender the operational and profitable JKIA to Adani for 30 years (in exchange for 1.85 Billion USD equivalent to 238 Billion Kenya Shillings). In the applicants’ estimation, Kenya can afford to raise 238B without leasing the airport to Adani for 30 years. If Adani’s proposal is taken on board, it would deprive the public of and transfer to Adani all the current revenues, receipts, expenditures, and other financial transactions over JKIA. Although the project is dubbed a Built-Operate Transfer, KAA would be handing over an existing and operational airport to Adani.
14. According to the proposed scheme, Adani is not obligated to build a new runway because according to its proposal, the runway is sufficient until 2048 and would only need a few rapid exits, parallel taxiways, and runway entry taxiways. Yet At the end of these 30 years, Adani would, in perpetuity, retain an 18% equity stake in the aeronautical business at JKIA. Thus, after 30 years, Adani would be entitled to 18% a concession fee starting at 6 Billion Kenya Shillings and increasing by 10% every five years forever. In this way, the Adani proposal violates Article 201(c) of the Constitution which demands that the burden and benefits of the use of resources and public borrowing must be shared equitably between present and future generations.
15. That notwithstanding, the Adani proposal forbids KAA from building a competing facility (that is, any airport or aerodrome within a 150-kilometre radius of JKIA) for 30 years. The proposal also disproportionately transfers the aggregated fiscal risk and contingent liabilities to KAA; with Adani bearing no or minimal risk. Thus, the proposal would leave KAA worse off.
16. It is the applicants’ contention that the proposal, thus, violates section 40(2)(f) of the PPPA and article 201 of the Constitution which demand value for money and an efficient transfer of risk from the public sector.
17. According to the impugned proposal, Adani would also acquire nearly 30 acres of unencumbered land next to JKIA for airport property investment and development business. Besides, the proposal entitles Adani to operate tax-free for 10 years, import labour, and obtain free work visas, thus depriving Kenyan workers of their livelihood, contrary to Articles 26, 41, and 43 of the Constitution.
18. At the time of filing the application, KAA had a 31 October 2024 deadline to meet the conditions for the concession. On 30 August 2024, Adani incorporated Airports Infrastructure PLC as a Kenyan subsidiary to take over the JKIA. The same week, Adani conducted a stock-taking exercise at JKIA. At the same time, KAA officials visited Adani headquarters in India indicating that the Adani deal was imminent.
Preliminary objection and respondents’ case
19. The 1st respondent objected to the hearing of the suit by way of a preliminary objection dated 7 October 2024. The objection was based on the grounds that the jurisdiction to hear and determine any complaint arising from a privately initiated proposal lies with the Petition Committee established under Section 75 of the Public Private Partnerships Act.
20. It is also the 1st respondent’s position that the application violates provisions of Section 75 of the Public Private Partnerships Act, 2021. Under section 75(1), the Act establishes the Petition Committee with jurisdiction to hear and determine any petitions regarding the decisions of the Public Private Partnership Committee, the Directorate of Public Private Partnerships or a contracting authority. Section 75(2)- (7) provides an elaborate process of challenging the decision of a contracting authority before the Petition Committee. Section 75(8) provides that an appeal from the decision of the Petition Committee shall be lodged in this Honourable Court.
21. The 1st respondent contends that the applicants have failed to exhaust the dispute resolution mechanism stipulated in the law and, therefore, this Honourable Court lacks jurisdiction to hear and determine this matter.
22. The 2nd to 5th respondents filed grounds of objection in response to the application. The grounds are more or less in the same terms as the grounds in the 1st respondent’s preliminary objection.
23. In addition to what the 1st respondent has stated, the 2nd to 5th respondents have cited the Court of Appeal decision in the Speaker of the National Assembly v James Njenga Karume (1992) eKLR) on the exhaustion of the review and appellate mechanisms. They have also pleaded that the respondents are private entities and that the orders of judicial review sought against the respondents’ privately-initiated proposal dated 1st March 2024 cannot issue.
24. It is also contended on behalf of the 2nd and 5th respondents that the Adani proposal is under negotiations and due diligence stage in compliance with the provisions of Public Private Partnerships Act. The orders sought to declare the privately initiated proposal as a nullity or prohibit the parties from proceeding with the project as set out in the Act are premature and without basis. Again, there is no jurisdiction to issue a declaration in the circumstances of the case or at all.
25. Judicial review remedies, it is urged, are discretionary and the court ought not to exercise its discretion in the applicants' favour having regard to the facts. In particular, Mandamus is not available to the applicants in view of Article 35 of the Constitution; and, certiorari and prohibition are employed primarily to control decision makers. According to the 2nd to 5th respondents, these reliefs lie in cases of excess of jurisdiction, error on the face of the record and exceptional circumstances. They cannot issue to stop a process initiated in accordance with the law.
26. Besides the preliminary objection, the 1st respondent filed a replying affidavit sworn by Henry Ogoye who introduced himself in the affidavit as the 1st respondent’s acting managing director and chief executive officer. He has sworn that the Kenya Airports Authority is a State Corporation established under the Kenya Airports Authority Act, cap. 395 and that under Section 12 of the Act, it is mandated to, inter alia; construct, operate and maintain aerodromes and other related facilities; construct or maintain aerodromes on an agency basis on the request of any Government department; and, provide such other amenities or facilities for passengers and other persons making use of the services or the facilities provided by the 1st respondent as may appear to the Board of the 1st respondent as necessary or desirable.
27. As far the privately initiated proposal by the 5th respondent is concerned, it is deposed that its consideration is consistent and aligned with Kenya's public policy of expansion and modernization of Jomo Kenyatta International Airport (JKIA) as a strategic infrastructure and as the regional gateway of choice. Currently, JKIA is facing a capacity crisis and is in urgent need of investment to meet increasing demand and retain its competitive edge. Further, the 1st respondent has complied with the Constitution and the Act in consideration of the proposal.
Cancellation of the Adani Proposal
28. More pertinent to this ruling is the 1st respondent’s further affidavit sworn by Nicholas Bodo on 5 May 2025. Like Ogoye, Bodo has sworn that he is the acting managing director and chief executive officer of the 1st respondent. The assumption is that Bodo must have taken over from Ogoye as the managing director and chief executive officer of the 1st respondent.
29. Ogoye has sworn that he is aware that the 5th Respondent submitted to the 1st Respondent a privately initiated proposal for the development, expansion and operation of the Jomo Kenyatta International Airport. He has been informed by the 1st respondent’s counsel, which information he verily believes to be true, that section 6 of the Public Procurement Private Partnership Act provides at Section 6 that the functions of the Public Private Partnerships Committee include approving the cancellation of procurements or termination of project agreements.
30. At its 51st Ordinary Public Private Partnership Committee meeting, the Committee approved the cancellation request subject to the approval of the Attorney General. The Attorney General approved the cancellation of the Adani proposal and by a letter dated 26 February 2025, the 1st respondent informed the 5th respondent of the approval and cancellation of the proposal by the 5th respondent.
31. The 1st respondent’s letter cancelling the proposal reads as follows:
“KAA/13/10/2 VOL. 1 (73)
26th February, 2025 Mr. Alok Patni
Adani Airport Holdings Ltd,
Commerce House 6, 80ft Corporate Road, Off.SC Highway Next to SNP Global House Prahalad Nagar
Ahmedabad Gujarat, 380051, India alok.gatn i@adani.com
Dear Sir,
RE: CANCELLATION OF THE PUBLIC PRIVATE PARTNERSHIP PROJECT FOR THE CONSTRUCTION OF A NEW PASSENGER TERMINAL BUILDING AND ASSOCIATED WORKS AT THE JOMO KENYATTA INTERNATIONAL AIRPORT (JKIA)
We refer to our letter Ref: KAA/13/10/2 VOL. 1 (42) dated 8th August 2024, along with prior correspondence concerning the above-referenced project.
We wish to inform you that the Public-Private Partnership Committee (PPPC) approved the cancellation of the PPP project for the construction of a new passenger terminal building at Jomo Kenyatta International Airport in line with Section 62 of the Public Private Partnership (PPP) Act 2021. The decision follows an assessment of the project, during which it was determined that the project does not meet the public interest criteria due to material governance concerns that have arisen during the procurement process.
We further take note that the Heads of Terms gives KAA the right to terminate negotiations in connection with the project.
Yours Sincerely,
Signed,
Nicholas Bodo
Ag. Managing Director/CEO”
32. The introduction of this letter into these proceedings is against the background that on 17 December 2024 when the matter was scheduled for highlighting of submissions on the 1st respondent’s preliminary objection and the application to set aside conservatory orders. Mr. Chebon, the learned counsel holding brief for Mr. Otieno for the 2nd applicant informed the court that he was not ready to proceed with the matter because, earlier, in his presidential address to the nation, the President of the Republic of Kenya had cancelled the Adani contract. Mr. Chebon wanted documentary evidence from the respondents that indeed the Adani deals had been cancelled so that he could advise his clients accordingly. He also wanted proof of the costs expended in the Adani deals. He suggested that the 1st respondent be granted time to present the necessary documentation.
33. Ms. Oduor, the learned counsel holding brief for Mr. Ochieng Oduol for the 1st respondent confirmed that the 1st respondent was in the process of formalisation of the cancellation of the privately initiated proposal following the address by the Head of State on 2 December 2024. The 1st respondent’s Board had approved the cancellation on 2 December 2024 but that the approval was subject to the approval of Ministry of Finance and the Ministry of Transport. It was also subject to the approval of the Private Public Partnership Directorate which met on 11 December 2024.
34. Counsel informed the court that the necessary documentation was to be concluded by the end of December 2024. Accordingly, counsel had no objection to the mater being adjourned to enable her file the necessary documents on the status of the 5th respondent’s privately initiated proposal after which the applicants would consider whether they were still intent on proceeding with their case.
35. The matter was adjourned to 6 March 2025. On this date, the court was informed that the 1st respondent’s further affidavit on which a copy of the 1st respondent’s letter had been exhibited had been filed. Despite this development, the applicants’ counsel insisted that the case proceeds to its logical conclusion since the 1st respondent’s letter did not render it moot. It is against this background that the court directed that parties proceed to highlight their submissions on the preliminary objection and the application to set aside the conservatory orders. The court also directed that, assuming the suit was properly before court, parties were to submit on whether it had been rendered moot in the wake of the cancellation of the Adani proposal.
36. This ruling is primarily on the 1st respondent’s preliminary objection and, depending on the answer to that question, whether the suit has been rendered moot.
1st respondent’s submissions
37. In prosecution of the 1st respondent’s preliminary objection, it has been submitted that this court lacks jurisdiction to entertain this suit because the applicants have ignored, circumvented or failed to pursue and exhaust alternative dispute resolution mechanisms relating to grievances under the Private Partnership Act, 2021 as provided for under Section 75(4) of the Act. According to the provisions of section 75, a petition committee is seized of the jurisdiction to hear and determine petitions against public private partnership committee decisions and this Honourable Court is only seized of jurisdiction to entertain appeals from the petition committee.
38. It is submitted on behalf of the 1st respondent that the issue in contention in these proceedings is the decision of the 1st respondent, as a contracting authority, to consider the privately initiated proposal of the 5th respondent. This is said to fall within the jurisdiction of the Petition Committee as provided in Section 75(1) of the Act.
39. In this submission, the 1st respondent has invoked the doctrine of exhaustion and cited Speaker of National Assembly vs Karume (1992) KLR 21 where the Court of Appeal applied this doctrine and stated as follows:
“Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure followed by any law must be strictly adhered to since there are good reasons for such special procedures”.
40. In the same breath, the 1st respondent relied on Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others (2015) eKLR where, again, the Court of Appeal reiterated that where a dispute resolution mechanism exists outside courts, the same must be exhausted before the jurisdiction of the Court is invoked.
41. This doctrine has a statutory backing in section 9 (2) and (3) of the Fair Administrative Actions Act which states as follows:
(2) The High Court or a Subordinate Court under sub section (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.
(3) The High Court or a Subordinate Court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that the applicant shall first exhaust such remedy before instituting proceedings under sub-section (1).
42. Under section 9(4), on an application by the applicant, one may be exempted from exhausting the internal mechanisms for appeal or review in exceptional circumstances before invoking the jurisdiction of the court. It is urged that in the applicant’s case, no application for exemption has been filed before this Court prior to the filing of the application for leave or the substantive motion; and, even if the same had been filed, no exceptional circumstances have been shown to exist as to merit an order for exemption.
43. That notwithstanding, the 1st respondent cited the case of Nicholus v Attorney General & 7 others (2023) KESC 113 (KLR) where, in interpreting section 9(2) of the Fair Administrative Action Act, the Supreme Court endorsed a “nuanced approach” in safeguarding a litigant’s right to access to justice but at the same time embracing the efficiency and specificity of the alternative dispute resolution mechanisms.
44. The 1st respondent has also relied on the Court of Appeal decision in Capital Markets Authority v. Jonathan Ciano & Uchumi Supermarkets(2023) KECA 581(KLR) (para 28) where the Court held that where proceedings for judicial review offend the doctrine of exhaustion, the Court ought to decline to exercise its jurisdiction.
45. The 1st respondent urges that having failed to approach the petition committee to address its grievances or, having failed to seek exemption from exhausting the remedies available under the Act, these proceedings are an abuse of the court process. It does not matter that the applicant seeks a declaration that articles 10, 27 and 201 of the Constitution have been violated; the applicants were still enjoined to exhaust the statutory remedies or seek exemption from exhausting those remedies.
46. The case of Okiya Omtata Okoiti Vs The Accounting Officer Kenya Electricity Generating Company PLC and Others Petition (2023) 567 (KLR) was cited where the petitioner was held to have by-passed the prescribed procedure in the Public Procurement and Asset Disposal Act, 2015. In that case, the court held, inter alia, that where there exist ample statutory avenues for resolution of a dispute, the constitutional court will defer to the statutory options and decline to entertain such a dispute.
47. For the same argument, the 1st respondent relied on Gabriel Mutava & 2 others v Managing Director Kenya Ports Authority & another (2016) eKLR. Here, the court held, inter alia, that where there exists other sufficient and adequate avenue to resolve a dispute, a party ought not to trivialize the jurisdiction of the Constitutional Court by bringing actions that could very well and effectively be dealt with in that other forum.
1st respondent’s submissions on mootness
48. As far as the question of mootness of the suit is concerned, the 1st respondent anchored its arguments on the further affidavit of Nicholas Bodo sworn on 5 March 2025 and reiterated that following the institution of multiple cases challenging the Adani proposal on the development and operation of Jomo Kenyatta International Airport and “a robust public discourse”, the 1st respondent’s Board convened a special meeting on 2 December 2024, and resolved to cancel consideration of the Adani proposal.
49. In short, the cancellation of the proposed Public-Private Partnership agreement with Adani Airport Holdings Ltd for the development and management of Jomo Kenyatta International Airport, which agreement was the subject of the challenge, has rendered the suit purely academic, as there is no longer a live controversy requiring adjudication by this Honourable Court.
50. In view for these developments, the 1st respondent has urged that the case is moot and, to that end, it has been urged that mootness occurs when the issue in a court case is no longer relevant or capable of being resolved, usually because the circumstances that gave rise to the dispute have changed or ended.
51. For a court to hear a case, there must be a current and live controversy, ensuring that any decision made will have a meaningful impact on the parties involved. On this particular point, the 1st respondent has relied on Okiya Omtatah Okoiti & 2 others v Attorney General & 4 others [2020] KECA 589 (KLR) (at para 6) where the court cited Mativo, J. as he then was in Daniel Kaminja & 3 others (suing as Westland Environment Caretaker Group) vs County Government of Nairobi [2019] e KLR; the learned judge held that:
“A matter is moot if further legal proceedings with regard to it can have no effect, or events have placed it beyond the reach of the law. Thereby the matter has been deprived of practical significance or rendered purely academic. Mootness arises when there is no longer an actual controversy between the parties to a court case and any ruling by the court would have no actual practical impact”.
And
“No court of law will knowingly act in vain … a Suit is academic where it is merely theoretical, makes empty sound and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it is not related to practical situations of human nature and humanity.”
52. For the same argument, counsel for the 1st respondent cited the Supreme Court in Institute for Social Accountability & Another v. National Assembly & 3 Others [2022] KESC 39 (KLR); Dande & 3 Others v. Inspector General, National Police Service & 5 Others [2023] KESC 40 (KLR); and, Kenya Railways Corporation & 2 others v Okoiti &3 others [2023] KESC 38 (KLR). In this latter case the court held, inter alia, that the doctrine of mootness enquires whether events subsequent to the filing of a suit would have eliminated the controversy between the parties.
53. The other Supreme Court decision which the 1st respondent relied upon is that of Cabinet Secretary for the National Treasury and Planning & 4 others v Okoiti & 52 others; Bhatia (Amicus Curiae) [2024] KESC 63 (KLR) particularly at paragraphs 188-190 where he Court reiterated that the doctrine of mootness serves to preserve the judicial economy and ensure that courts confine themselves to disputes where actual rights and obligations of parties are at stake.
54. Against this legal and factual background, the 1st respondent submits that this matter has been overtaken by events and is, therefore, an academic exercise. This is because the core issue, which is whether the Privately Initiated Proposal by Adani Airport Holdings Ltd for the concession of JKIA violated constitutional and statutory requirements, has been rendered moot by the formal cancellation of the proposal. There is no longer a live controversy for this Court to resolve.
55. The original dispute over whether the respondents acted lawfully in considering and progressing the Adani proposal now relates to a process that has been abandoned and extinguished. As such, continued proceedings on this application serve no practical or legal purpose.
56. That notwithstanding, the 1st respondent has acknowledged and submitted that courts may, in limited circumstances, depart from the doctrine of mootness where the matter, although no longer live, raises issues of great public importance or where the dispute is capable of repetition but evading judicial review. The Supreme Court in Institute for Social Accountability & Another v National Assembly & 3 Others (supra) recognised this exception and approved the principle from the South African case of AAA Investments (Pty) Ltd v Micro-Finance Regulatory Council & Another 2007 (1) SA 343 (CC), where it was held that a court may determine a technically moot matter if the issue remains unsettled and is of critical importance to the operation of government.
57. But in National Assembly & Another v Okoiti & 55 Others [2024] KECA 876 (KLR), the discretion to entertain moot cases is limited to instances where a purely legal issue arises, requiring no factual analysis, and where a determination would have clear practical or jurisprudential impact. This position was upheld in the South African case of Independent Electoral Commission v Langeberg Municipality 2001 (3) SA 925 (CC), where it was held that a court may only entertain a moot matter if any order issued would have a tangible effect on the parties or others.
58. And in National Assembly & Another v Okoiti & 55 Others [2024] KECA 876 (KLR), the Court of Appeal articulated the proper approach to determining whether a suit should be dismissed on grounds of mootness and in this regard, the court adopted a two-step analysis. The first step is to consider whether the tangible and concrete dispute between the parties has ceased to exist; and, secondly,
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