REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT VIHIGA
CONSTITUTIONAL PETITION NO E001 OF 2024
IN THE MATTER OF ARTICLES 10, 19, 21, 23, 27, 47 AND 227 OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF VIOLATION OF CONSTITUTIONAL FREEDOMS AND LIBERTIES
BETWEEN
VIHIGA CONTRACTORS ASSOCIATION
THROUGH RASHEED OBONDO HASSAN……………………… PETITIONER
AND
COUNTY GOVERNMENT OF VIHIGA…………………………1 ST RESPONDENT
CHIEF OFFICER ROADS …………………………………………2 ND RESPONDENT
JUDGMENT
INTRODUCTION
1. In its Petition dated 14 th February 2024 and filed on 15 th February 2024, the Petitioner herein sought the following orders: -
1. A declaration that the Respondents, jointly and severally in re-advertising the tenders in issue without releasing the results of the first bids for the advert of 26 th October 2023, acted contrary to the provisions of Articles 10, 27, 227 and 232 of the Constitution.
2. A declaration that the Petitioner’s rights in Article 27, 43, 47, 201, 227 and 232 of the Constitution had been breached.
3. An order of mandamus compelling the Respondents to release the results of the bids submitted pursuant to the advertisement dated 26 th October 2023.
4. An order of certiorari to remove into this court and quash the contents of the advertisement or notice dated 12 th January 2024, or the re-advertisement arising therefrom.
5. General damages for the violation of the Petitioner’s right under Articles 27, 43 and 47 of the Constitution.
2. On 26 th February 2024, the Respondents filed a Replying Affidavit dated 26 th February 2024. The Petitioner subsequently filed a Supplementary Affidavit sworn on 6 th March 2024 and filed on 8 th March 2024.
3. The Petitioners’ Written Submissions were dated 29 th October 2025 and filed on 12 th November 2025. On 5 th March 2026, the court directed the Respondents to file and serve their Written Submissions on or before 19 th March 2026. The Respondents failed to comply with the said directions and did not file any Written Submissions in support of their case. Consequently, the court proceeded to determine the Petition based on the material placed on record and the Petitioner’s Written Submissions.
LEGAL ANALYSIS
4. The Petitioner herein stated that its members were contractors who supplied goods, works and services to the 1 st Respondent herein through the public procurement process.
5. It averred that pursuant to an advertisement published on 26 th October 2023, its members submitted bids for various tenders through the Integrated Financial Management Information System (IFMIS) within the prescribed timelines. It contended that some of the bids were never opened for evaluation, while the bidders whose tenders were opened were not notified of the outcome of the procurement process.
6. It further stated that before the Respondents communicated the outcome of the initial procurement process, they re-advertised some of the tenders through a notice dated 12 th January 2024. It also averred that some of the works relating to the earlier advertisement had already been undertaken notwithstanding that the results of the initial tender process had not been released.
7. It asserted that the failure to conclude the procurement process and communicate its outcome rendered the fate of its members’ bids unknown and denied them an opportunity to challenge any procurement decision. It relied on Section 3 of the Public Procurement and Asset Disposal Act, the Fair Administrative Action Act and Articles 10, 27, 47, 201, 227 and 232 of the Constitution, arguing that the Respondents violated the principles of fairness, transparency, accountability and fair administrative action.
8. The Respondents opposed the Petition and contended that the procurement process undertaken by the 1 st Respondent herein complied with the Constitution and the Public Procurement and Asset Disposal Act. Their earlier Preliminary Objection challenging the competence of the Petition was dismissed by the court on 24 th September 2024.
9. The Respondents stated that the 1 st Respondent advertised ninety-three (93) projects for the Financial Year 2023/2024 covering all twenty-five (25) wards within Vihiga County. They averred that bids were received through IFMIS, evaluated, and sixty (60) projects awarded to successful bidders, including twenty-five (25) members of the Petitioner. They maintained that unsuccessful bidders were notified through IFMIS and denied that any of the Petitioner’s members were excluded from the procurement process.
10. They explained that the tenders which were subsequently re-advertised related only to thirty-three (33) projects that had not been awarded during the initial procurement process. They asserted that the re-advertisement was undertaken in accordance with the law after the initial process did not result in successful awards. They thus urged this court to dismiss the Petition herein with costs.
11. Having considered the Petition, the affidavits filed by the parties and the Written Submissions on record, it appeared to this court that the issues that had been placed before it for determination were as follows: -
a. Whether or not the Respondents violated the Petitioner’s constitutional rights and the provisions of the Public Procurement and Asset Disposal Act by failing to communicate the outcome of the bids submitted pursuant to the tender advertisement dated 26 th October 2023 and subsequently re-advertising some of the tenders;
b. Whether or not the procurement process undertaken by the Respondents in relation to the advertised tenders was conducted in accordance with the constitutional principles governing public procurement, including fairness, transparency, accountability and competitiveness;
c. Whether or not the Petitioner was entitled to the reliefs sought; and
d. Who was to bear the costs of the Petition.
I. VIOLATION OF THE PETITIONER’S CONSTITUTIONAL RIGHTS
12. The Petitioner submitted that the Respondents acted contrary to the principles of transparency, accountability and fair administrative action by re-advertising some of the tenders through the notice dated 12 th January 2024 before communication of the outcome of the initial procurement process. It submitted that the Respondents thereby violated Articles 10, 27, 47, 227 and 232 of the Constitution as well as the provisions of the Public Procurement and Asset Disposal Act.
13. The Respondents were emphatic that they complied with the procurement law and complied with all the procedures in line with the IFMIS platform. They maintained that the decision to re-advertise the aforesaid tenders was undertaken in accordance with the procurement framework and did not amount to a violation of the Petitioner’s members’ rights. They pointed out that the Petitioner had not sought clarification, reasons or disclosure of the procurement outcome before filing the Petition. They contended that the Petitioner failed to demonstrate any specific member whose bid had been unlawfully rejected, ignored or excluded from the procurement process.
14. This court considered the constitutional and statutory framework governing public procurement and fair administrative action. In particular, Article 47(1) of the Constitution of Kenya, 2010 provides as follows: -
“Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.”
15. Further, Article 47(2) of the Constitution of Kenya states that: -
“If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.”
16. Similarly, Section 4(2) of the Fair Administrative Action Act provides that:
"Every person has the right to be given written reasons for any administrative action that is taken against him."
17. Article 227(1) of the Constitution provides as follows: -
“When a State organ or any other public entity contracts for goods or services, it shall do so in accordance with a system that is fair, equitable, transparent, competitive and cost-effective.”
18. Section 3 of the Public Procurement and Asset Disposal Act provides that public procurement and asset disposal by State organs and public entities shall be guided by the values and principles of the Constitution and relevant legislation, including the national values under Article 10, equality and freedom from discrimination under Article 27, integrity, public finance principles under Article 201, public service values under Article 232, transparency, accountability and promotion of citizen contractors.
19. The court observed that these provisions imposed an obligation upon public entities to undertake procurement and administrative actions fairly, transparently and accountably. It was clear that where administrative action adversely affected identifiable persons, such persons were entitled to reasons for the action. A party alleging violation of Article 47 of the Constitution of Kenya and the Fair Administrative Action Act was required to demonstrate the specific administrative action complained of, the manner in which it affected their rights or interests, and the persons affected.
20. Although the Petitioner alleged that some bids were never opened and that unsuccessful bidders were not notified, it did not identify the specific members whose bids were allegedly not opened, the respective tender numbers or procurement decisions giving rise to the alleged violations, or demonstrate that any request for clarification or reasons had been made and declined by the Respondents.
21. On the other hand, the Respondents produced documentary evidence demonstrating that sixty (60) tenders were awarded pursuant to the advertisement dated 26 th October 2023, unsuccessful bidders were notified through the IFMIS platform, twenty-five (25) awards were made to members of the Petitioner, and subsequently only thirty-three (33) tenders that had not been successfully awarded were re-advertised.
22. The Petitioner did not produce evidence showing that the re-advertised tenders had already been awarded, that any bidder had been unlawfully excluded from evaluation, or that the Respondents acted discriminatorily against any identifiable bidder to the evidence the Respondent rebutting those documents..
23. Further, the mere fact that certain tenders were re-advertised did not, without more, establish a violation of Article 227 of the Constitution or Section 3 of the Public Procurement and Asset Disposal Act, particularly where the evidence showed that the re-advertisement related only to tenders that had not been successfully awarded.
24. Consequently, the alleged breaches remained generalised and were not linked to identifiable administrative decisions affecting identifiable persons.
25. The court was guided by the principle in Anarita Karimi Njeru vs Republic (No 1) [1979] KLR 154, as affirmed by the Court of Appeal in the case of Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 Others (2013) eKLR , that a party alleging violation of constitutional rights must plead such violations with reasonable precision by identifying the constitutional provisions violated, the manner of violation and the persons affected.
26. Accordingly, the court was not satisfied that the Petitioner had proved, on a balance of probabilities, any violation of Articles 10, 27, 47, 227 or 232 of the Constitution or Section 3 of the Public Procurement and Asset Disposal Act. The first issue therefore failed.
II. PROCUREMENT PROCESS
27. The Petitioner submitted that the Respondents failed to conduct the procurement process in accordance with the constitutional principles of fairness, transparency, accountability and competitiveness. It argued that the failure to open some bids, communicate procurement outcomes and subsequently re-advertise some tenders demonstrated an opaque procurement process inconsistent with Article 227 of the Constitution.
28. The Respondents stated that the procurement process fully complied with the Constitution and the Public Procurement and Asset Disposal Act.
29. The court considered Article 227(1) of the Constitution together with Section 3 of the Public Procurement and Asset Disposal Act, which require public procurement processes to be undertaken fairly, transparently, competitively and in accordance with constitutional values and principles.
30. The burden rested upon the Petitioner to demonstrate that the procurement process failed to meet these constitutional and statutory standards. Mere assertions that some bids were not opened, or that communication was lacking, without supporting evidence, could not establish procedural impropriety or constitutional infringement.
31. The court therefore found that the Petitioner had failed to demonstrate that the procurement process was conducted in a manner inconsistent with Article 227 of the Constitution or Section 3 of the Public Procurement and Asset Disposal Act.
III. RELIEFS
32. The Petitioner submitted that it was entitled to the declaratory orders, orders of mandamus and certiorari , together with general damages, because the Respondents violated the constitutional rights of its members by failing to communicate the outcome of the procurement process and unlawfully re-advertising some of the tenders.
33. This court considered the nature of the remedies that the Petitioner had sought herein. It noted that constitutional remedies were discretionary and could only issue where a petitioner had demonstrated that a constitutional right or fundamental freedom had been violated, infringed or threatened.
34. Having found that the Petitioner failed to establish any violation of the Constitution or breach of the Public Procurement and Asset Disposal Act, the court found no basis for the granting of the declaratory orders, the orders of mandamus or certiorari or general damages as the Petitioner had sought. This court found and held that the Petitioner had not demonstrated that the Respondents unlawfully withheld procurement information, acted unlawfully in re-advertising the tenders, or undertook any unconstitutional administrative action. Accordingly, the Petitioner was not entitled to any of the reliefs sought.
IV. COSTS
35. The court considered the issue of costs. Costs are awarded at the discretion of the court under Section 27(1) of the Civil Procedure Act Cap 21 (Laws of Kenya) which provides as follows: -
“Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid:
Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.”
36. The general principle was that the successful party was ordinarily entitled to costs. However, in constitutional litigation, the award of costs remained a matter of judicial discretion and depended on the circumstances of each case, including the nature of the dispute, the conduct of the parties and whether the proceedings raised matters of public interest.
37. Although the Petition was unsuccessful, the court noted that it was instituted in the public interest to examine the manner in which a public entity exercised its procurement mandate and alleged compliance with constitutional principles of transparency, accountability and fair administrative action.
38. In addition, this court was not persuaded to grant costs to the government against its own citizen. That would not only be punitive but the same would be immoral to have a government execute a decree for costs against its own citizen.
DISPOSITION
39. For the foregoing reasons, the upshot of this court’s decision was that the Petition dated 14 th February 2024 and filed on 15 th February 2024 lacked merit and the same be and is hereby dismissed.
40. It is hereby directed that each party shall bear its own costs of this Petition.
41. It is so ordered.
DATED and DELIVERED at VIHIGA this 28 th day of July 2026
J. KAMAU
JUDGE
constITUTIONAL petition no e001 of 2024 2
IN THE HIGH COURT OF KENYA AT VIHIGA
CONSTITUTIONAL PETITION NO E001 OF 2024
IN THE MATTER OF ARTICLES 10, 19, 21, 23, 27, 47 AND 227 OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF VIOLATION OF CONSTITUTIONAL FREEDOMS AND LIBERTIES
BETWEEN
VIHIGA CONTRACTORS ASSOCIATION
THROUGH RASHEED OBONDO HASSAN……………………… PETITIONER
AND
COUNTY GOVERNMENT OF VIHIGA…………………………1 ST RESPONDENT
CHIEF OFFICER ROADS …………………………………………2 ND RESPONDENT
JUDGMENT
INTRODUCTION
1. In its Petition dated 14 th February 2024 and filed on 15 th February 2024, the Petitioner herein sought the following orders: -
1. A declaration that the Respondents, jointly and severally in re-advertising the tenders in issue without releasing the results of the first bids for the advert of 26 th October 2023, acted contrary to the provisions of Articles 10, 27, 227 and 232 of the Constitution.
2. A declaration that the Petitioner’s rights in Article 27, 43, 47, 201, 227 and 232 of the Constitution had been breached.
3. An order of mandamus compelling the Respondents to release the results of the bids submitted pursuant to the advertisement dated 26 th October 2023.
4. An order of certiorari to remove into this court and quash the contents of the advertisement or notice dated 12 th January 2024, or the re-advertisement arising therefrom.
5. General damages for the violation of the Petitioner’s right under Articles 27, 43 and 47 of the Constitution.
2. On 26 th February 2024, the Respondents filed a Replying Affidavit dated 26 th February 2024. The Petitioner subsequently filed a Supplementary Affidavit sworn on 6 th March 2024 and filed on 8 th March 2024.
3. The Petitioners’ Written Submissions were dated 29 th October 2025 and filed on 12 th November 2025. On 5 th March 2026, the court directed the Respondents to file and serve their Written Submissions on or before 19 th March 2026. The Respondents failed to comply with the said directions and did not file any Written Submissions in support of their case. Consequently, the court proceeded to determine the Petition based on the material placed on record and the Petitioner’s Written Submissions.
LEGAL ANALYSIS
4. The Petitioner herein stated that its members were contractors who supplied goods, works and services to the 1 st Respondent herein through the public procurement process.
5. It averred that pursuant to an advertisement published on 26 th October 2023, its members submitted bids for various tenders through the Integrated Financial Management Information System (IFMIS) within the prescribed timelines. It contended that some of the bids were never opened for evaluation, while the bidders whose tenders were opened were not notified of the outcome of the procurement process.
6. It further stated that before the Respondents communicated the outcome of the initial procurement process, they re-advertised some of the tenders through a notice dated 12 th January 2024. It also averred that some of the works relating to the earlier advertisement had already been undertaken notwithstanding that the results of the initial tender process had not been released.
7. It asserted that the failure to conclude the procurement process and communicate its outcome rendered the fate of its members’ bids unknown and denied them an opportunity to challenge any procurement decision. It relied on Section 3 of the Public Procurement and Asset Disposal Act, the Fair Administrative Action Act and Articles 10, 27, 47, 201, 227 and 232 of the Constitution, arguing that the Respondents violated the principles of fairness, transparency, accountability and fair administrative action.
8. The Respondents opposed the Petition and contended that the procurement process undertaken by the 1 st Respondent herein complied with the Constitution and the Public Procurement and Asset Disposal Act. Their earlier Preliminary Objection challenging the competence of the Petition was dismissed by the court on 24 th September 2024.
9. The Respondents stated that the 1 st Respondent advertised ninety-three (93) projects for the Financial Year 2023/2024 covering all twenty-five (25) wards within Vihiga County. They averred that bids were received through IFMIS, evaluated, and sixty (60) projects awarded to successful bidders, including twenty-five (25) members of the Petitioner. They maintained that unsuccessful bidders were notified through IFMIS and denied that any of the Petitioner’s members were excluded from the procurement process.
10. They explained that the tenders which were subsequently re-advertised related only to thirty-three (33) projects that had not been awarded during the initial procurement process. They asserted that the re-advertisement was undertaken in accordance with the law after the initial process did not result in successful awards. They thus urged this court to dismiss the Petition herein with costs.
11. Having considered the Petition, the affidavits filed by the parties and the Written Submissions on record, it appeared to this court that the issues that had been placed before it for determination were as follows: -
a. Whether or not the Respondents violated the Petitioner’s constitutional rights and the provisions of the Public Procurement and Asset Disposal Act by failing to communicate the outcome of the bids submitted pursuant to the tender advertisement dated 26 th October 2023 and subsequently re-advertising some of the tenders;
b. Whether or not the procurement process undertaken by the Respondents in relation to the advertised tenders was conducted in accordance with the constitutional principles governing public procurement, including fairness, transparency, accountability and competitiveness;
c. Whether or not the Petitioner was entitled to the reliefs sought; and
d. Who was to bear the costs of the Petition.
I. VIOLATION OF THE PETITIONER’S CONSTITUTIONAL RIGHTS
12. The Petitioner submitted that the Respondents acted contrary to the principles of transparency, accountability and fair administrative action by re-advertising some of the tenders through the notice dated 12 th January 2024 before communication of the outcome of the initial procurement process. It submitted that the Respondents thereby violated Articles 10, 27, 47, 227 and 232 of the Constitution as well as the provisions of the Public Procurement and Asset Disposal Act.
13. The Respondents were emphatic that they complied with the procurement law and complied with all the procedures in line with the IFMIS platform. They maintained that the decision to re-advertise the aforesaid tenders was undertaken in accordance with the procurement framework and did not amount to a violation of the Petitioner’s members’ rights. They pointed out that the Petitioner had not sought clarification, reasons or disclosure of the procurement outcome before filing the Petition. They contended that the Petitioner failed to demonstrate any specific member whose bid had been unlawfully rejected, ignored or excluded from the procurement process.
14. This court considered the constitutional and statutory framework governing public procurement and fair administrative action. In particular, Article 47(1) of the Constitution of Kenya, 2010 provides as follows: -
“Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.”
15. Further, Article 47(2) of the Constitution of Kenya states that: -
“If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.”
16. Similarly, Section 4(2) of the Fair Administrative Action Act provides that:
"Every person has the right to be given written reasons for any administrative action that is taken against him."
17. Article 227(1) of the Constitution provides as follows: -
“When a State organ or any other public entity contracts for goods or services, it shall do so in accordance with a system that is fair, equitable, transparent, competitive and cost-effective.”
18. Section 3 of the Public Procurement and Asset Disposal Act provides that public procurement and asset disposal by State organs and public entities shall be guided by the values and principles of the Constitution and relevant legislation, including the national values under Article 10, equality and freedom from discrimination under Article 27, integrity, public finance principles under Article 201, public service values under Article 232, transparency, accountability and promotion of citizen contractors.
19. The court observed that these provisions imposed an obligation upon public entities to undertake procurement and administrative actions fairly, transparently and accountably. It was clear that where administrative action adversely affected identifiable persons, such persons were entitled to reasons for the action. A party alleging violation of Article 47 of the Constitution of Kenya and the Fair Administrative Action Act was required to demonstrate the specific administrative action complained of, the manner in which it affected their rights or interests, and the persons affected.
20. Although the Petitioner alleged that some bids were never opened and that unsuccessful bidders were not notified, it did not identify the specific members whose bids were allegedly not opened, the respective tender numbers or procurement decisions giving rise to the alleged violations, or demonstrate that any request for clarification or reasons had been made and declined by the Respondents.
21. On the other hand, the Respondents produced documentary evidence demonstrating that sixty (60) tenders were awarded pursuant to the advertisement dated 26 th October 2023, unsuccessful bidders were notified through the IFMIS platform, twenty-five (25) awards were made to members of the Petitioner, and subsequently only thirty-three (33) tenders that had not been successfully awarded were re-advertised.
22. The Petitioner did not produce evidence showing that the re-advertised tenders had already been awarded, that any bidder had been unlawfully excluded from evaluation, or that the Respondents acted discriminatorily against any identifiable bidder to the evidence the Respondent rebutting those documents..
23. Further, the mere fact that certain tenders were re-advertised did not, without more, establish a violation of Article 227 of the Constitution or Section 3 of the Public Procurement and Asset Disposal Act, particularly where the evidence showed that the re-advertisement related only to tenders that had not been successfully awarded.
24. Consequently, the alleged breaches remained generalised and were not linked to identifiable administrative decisions affecting identifiable persons.
25. The court was guided by the principle in Anarita Karimi Njeru vs Republic (No 1) [1979] KLR 154, as affirmed by the Court of Appeal in the case of Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 Others (2013) eKLR , that a party alleging violation of constitutional rights must plead such violations with reasonable precision by identifying the constitutional provisions violated, the manner of violation and the persons affected.
26. Accordingly, the court was not satisfied that the Petitioner had proved, on a balance of probabilities, any violation of Articles 10, 27, 47, 227 or 232 of the Constitution or Section 3 of the Public Procurement and Asset Disposal Act. The first issue therefore failed.
II. PROCUREMENT PROCESS
27. The Petitioner submitted that the Respondents failed to conduct the procurement process in accordance with the constitutional principles of fairness, transparency, accountability and competitiveness. It argued that the failure to open some bids, communicate procurement outcomes and subsequently re-advertise some tenders demonstrated an opaque procurement process inconsistent with Article 227 of the Constitution.
28. The Respondents stated that the procurement process fully complied with the Constitution and the Public Procurement and Asset Disposal Act.
29. The court considered Article 227(1) of the Constitution together with Section 3 of the Public Procurement and Asset Disposal Act, which require public procurement processes to be undertaken fairly, transparently, competitively and in accordance with constitutional values and principles.
30. The burden rested upon the Petitioner to demonstrate that the procurement process failed to meet these constitutional and statutory standards. Mere assertions that some bids were not opened, or that communication was lacking, without supporting evidence, could not establish procedural impropriety or constitutional infringement.
31. The court therefore found that the Petitioner had failed to demonstrate that the procurement process was conducted in a manner inconsistent with Article 227 of the Constitution or Section 3 of the Public Procurement and Asset Disposal Act.
III. RELIEFS
32. The Petitioner submitted that it was entitled to the declaratory orders, orders of mandamus and certiorari , together with general damages, because the Respondents violated the constitutional rights of its members by failing to communicate the outcome of the procurement process and unlawfully re-advertising some of the tenders.
33. This court considered the nature of the remedies that the Petitioner had sought herein. It noted that constitutional remedies were discretionary and could only issue where a petitioner had demonstrated that a constitutional right or fundamental freedom had been violated, infringed or threatened.
34. Having found that the Petitioner failed to establish any violation of the Constitution or breach of the Public Procurement and Asset Disposal Act, the court found no basis for the granting of the declaratory orders, the orders of mandamus or certiorari or general damages as the Petitioner had sought. This court found and held that the Petitioner had not demonstrated that the Respondents unlawfully withheld procurement information, acted unlawfully in re-advertising the tenders, or undertook any unconstitutional administrative action. Accordingly, the Petitioner was not entitled to any of the reliefs sought.
IV. COSTS
35. The court considered the issue of costs. Costs are awarded at the discretion of the court under Section 27(1) of the Civil Procedure Act Cap 21 (Laws of Kenya) which provides as follows: -
“Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid:
Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.”
36. The general principle was that the successful party was ordinarily entitled to costs. However, in constitutional litigation, the award of costs remained a matter of judicial discretion and depended on the circumstances of each case, including the nature of the dispute, the conduct of the parties and whether the proceedings raised matters of public interest.
37. Although the Petition was unsuccessful, the court noted that it was instituted in the public interest to examine the manner in which a public entity exercised its procurement mandate and alleged compliance with constitutional principles of transparency, accountability and fair administrative action.
38. In addition, this court was not persuaded to grant costs to the government against its own citizen. That would not only be punitive but the same would be immoral to have a government execute a decree for costs against its own citizen.
DISPOSITION
39. For the foregoing reasons, the upshot of this court’s decision was that the Petition dated 14 th February 2024 and filed on 15 th February 2024 lacked merit and the same be and is hereby dismissed.
40. It is hereby directed that each party shall bear its own costs of this Petition.
41. It is so ordered.
DATED and DELIVERED at VIHIGA this 28 th day of July 2026
J. KAMAU
JUDGE
constITUTIONAL petition no e001 of 2024 2