1. Through the Application dated 24th November 2025, the 11th Interested Party has moved the court, seeking the following orders;
1) …spent.
2) That pending the hearing and determination of this Application, there be an order of stay staying further proceedings in this matter.
3) That this Honourable Court be pleased to join the intended 11th Applicant, Shepol Limited, as an Applicant in these proceedings.
4) That upon joinder, the pleadings be amended accordingly to reflect the participation of the intended 11th Applicant.
5) That costs of this Application be in the cause.
The Applicant Case:
2. It is its case that by a Letter of Acceptance dated 10th February 2022, 1st Interested Party awarded the intended 11th Applicant the tender for the construction of a Two-Storey Dormitory Block, being Tender No. ABHS/NG-CDF/02/2021, at an initial contract sum of Kshs. 46,104,260.00.
3. According to the Applicant, it was mutually agreed among the School Board, the State Department of Public Works, and intended 11th Applicant that the project would be implemented in phases, with Phase One budgeted at Kshs. 15,000,000.00, and subsequent phases to be undertaken subject to Government and NG-CDF budgetary allocations to the school.
4. It is further its case that on the 17th of February 2022, the Applicant and the intended 11th Applicant entered into a formal Contract.
5. It is further its case that the Public Works Engineers issued Interim Certificates confirming the value of the works completed.
6. The interim certificates, the amount due from the employer is the contracted amount of Kshs. 15,000,000.00 less the amount of Kshs. 11,552,800.00 (already settled by the government) bringing the sum to Kshs. 3,447,200.00.
7. It is its case that despite the completion of the works, certification the School has refused to settle the outstanding amounts.
8. This according to the Applicant is attributing the non-payment to the administrative directive issued by the Ministry of Education on 18th September 2025 directing the closure and/ or relocation of Aldai Boys High School.
9. The said impugned directive, which is the very subject of these Judicial Review proceedings, has directly halted all payments, disrupted the project, and caused intended 11th Applicant severe financial prejudice. This makes the Applicant a necessary and proper party whose participation is required for the fair and complete determination of all issues before this Court.
10. It is its case that unless it is joined as the 11th Ex Parte Applicant, its contractual and financial rights will be determined without its participation, thereby violating its constitutional rights under Articles 47, 48 and 50, and exposing it to grave injustice.
The 3rd Interested Parties Case:
11. It is its case that the Applicant has an appropriate remedy and relief in the appropriate Commercial Forum - even if they are enjoined the are in no position to prosecute a commercial claim before this court for want of jurisdiction; both in pecuniary and pursuant to Section 11 of the High Court Organization and Administration Act, and no prejudice is suffered by them lodging their Claim in the appropriate forum - a competent Court.
12. It is its case that the 1st Interested Party has not entered Appearance and it cannot be condemned unheard, as this would deny it its right to a fair Hearing and an affront to the principle of Audi alteram partem.
13. The 1st Interested Party is a Public School, and the primary contracting party with the Applicant is the Ministry of Education. It is not the children.
14. The innocent children [who are all minors] cannot be held at ransom as a collateral to negotiate for payment, whilst putting their education at stake.
15. The funding and operation of the 1st Interested Party is through the Ministry of Education and not the Children or School Fees which existed before the alleged Contract, during and after the Contract, so what prejudice shall be suffered if any.
16. The 3rd Interested Party reiterates that the issues before court are limited to the education of the Children and the decision to transfer the children to other schools within the same vicinity, which process is well underway since 2024.
17. The 1st Interested Party has not entered Appearance and there is no demonstration by the Applicant that their Claim is against the Respondents.
18. This is the Party against whom a Claim would determine a necessary party of not, and any allegations and/or claims against other parties can be prosecuted in separate proceedings.
19. In the case of Joseph Njau Kingori v Robert Maina Chege & 3 others [2002] KEHC 1192 (KLR), the learned Judge enumerated the guiding principles as thus; “the party must be a necessary party, must be a proper party, in case of a Defendant there must a be relief flowing from that Defendant to the Plaintiff; the ultimate order or decree cannot be enforced without his presence in the matter, his Presence is necessary to enable the Court to effectively and completely adjudicate upon and settle all questions involved in the suit.”
20. In Skov Estate Limited & 5 others v Agricultural Development Corporation & another [2015] ICEELC 624 (KLR); In addressing the matter of an Interested Party seeking to be added to a suit, Justice Sila Munyao made the following statement:
"In my view, for one to convince the Court that he/she needs to be enjoined to the suit as an Interested Party, such person must demonstrate that it is necessary that he/she be enjoined in the suit, so that the Court may settle all questions involved in the matter. It is not enough for one to merely show that he/she has a cursory interest in the subject matter of litigation. Litigation invariably affects many people. A Judgment or order in most cases does not only affect the litigants in the matter. It does have ramification for others as well and one may very well argue that these others have an interest in the litigation. That is a fair argument, but a mere interest, without a demonstration that the presence ofsuch party will assist in the settlement of the questions involved in the suit, is not enough to entitle one be enjoined in the suit as an Interested Party.
21. Reliance is placed in the Court of Appeal in Saminico Limited v Nfutiso (As the administrator of the Estate of Michael Mutiso Sila - Deceased) (Civil Application 235 of2019) [2025/ KECA 225 (KLR) (7 February 2025 (Ruling) cited with approval of the Civil Appeal case of Francis Karioki Muruatetu & Anor Vs Republic & 5 Others (2016) eKLR where the Court held that: One must move the Court by way of a formal Application. Enjoinment is not as of right, but is at the discretion of the court; hence, sufficient grounds must be laid before the court, on the basis of the following elements:
i. The personal interest or stake that the party has in the matter must be set out in the Application. The interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral.
ii. The prejudice to be suffered by the intended Interested Party in case of nonjoinder, must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote.
iii. Lastly, a party must, in its Application, set out the case and/or submissions it intends to make before the Court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the court.
Analysis and determination:
Following are the issue for determination;
1) Whether the Application has merit.
2) Who shall bear costs.
Whether the Application has merit.
22. The Applicants case is that it entered into a contract between the 1st interest party and the Applicant on the 17th of February 2022.
23. The Applicant’s grievance is fundamentally a claim for breach of said contract.
24. Such a claim belongs to a Commercial or the Civil Division of the High court where disputes can be heard through oral and documentary evidence. That is what the Application is presenting.
25. In the Court of Appeal’s decision in Zakia Juma Construction Co Ltd vs Permanent Secretary Ministry of Roads & Public Works & Another (2007) eKLR, it was affirmed that Judicial Review cannot be invoked to enforce contractual rights unless expressly provided in the contract itself. In that case, the Court upheld the striking out of an Application seeking to enforce contractual obligations through judicial review, holding that such matters squarely belong in the realm of ordinary civil litigation.
26. In Republic v Registrar of Companies & 5 others Exparte Midlands Company Limited [2019] eKLR the court held that;
“38. Secondly, there are alternative fora that are more appropriate to resolve the factual disputes raised in this Application, such as the Civil or Commercial Division of the High Court, where no restrictions or limitations exist as those that arise in Judicial Review”
27. Section 11(1) of the High Court (Organization and Administration) Act provides that for purposes of promoting effectiveness and efficiency in the administration of justice and promoting judicial performance, the Chief Justice may, where the workload and the number of judges in a station permit, establish any of the following divisions—
a. the Family and Children Division;
b. the Commercial Division;
c. the Admiralty Division;
d. the Civil Division;
e. the Criminal Division;
f. the Constitutional and Human Rights Division;
g. the Judicial Review Division; and
h. any other division as the Chief Justice may, on the advice of the Principal Judge determine.
28. From the evidence as presented by the Applicant as read alongside Section 11(1) of the High Court (Organization and Administration) Act, it is my considered view that the issues raised are clearly contractual in nature.
29. According to the Applicant the cause of action is attributing the non-payment to the administrative directive issued by the Ministry of Education on 18th September 2025 directing the closure and/ or relocation of Aldai Boys High School.
30. The Applicants argument that the said impugned directive, which is the very subject of these Judicial Review proceedings, has directly halted all payments, disrupted the project, and caused intended 11th Applicant severe financial prejudice.
31. This in the court’s opinion cannot make the basis for making the Applicant a necessary and proper party whose participation is required for the fair and complete determination of all issues before this Court.
32. The Applicant’s argument that unless Shepol Limited is joined as the 11th Exparte Applicant, its contractual and financial rights will be determined without its participation, thereby violating its constitutional rights under Articles 47, 48 and 50, and exposing it to grave injustice is misplaced.
33. These are issues that would be best solved at the Commercial Division of the High Court.
34. Courts do not issue orders in vain. Nothing will be ultimately achieved in allowing the Application given that the nature of judicial review proceedings do not delve into contractual issues.
35. From the Applicants arguments, it is clear that ultimately the Applicant wants the court to determine an issue of breach of contract. This court lacks the jurisdiction to issue redress for breach of contracts and I so hold. No value will be added, granting the orders sought.
Determination;
36. This court lacks jurisdiction to preside over the issues raised by the applicant as a result of which the orders sought cannot be granted.
37. The Supreme Court Case of Dickson Ngigi Ngugi v Commissioner of Lands S.C Petition No. 9 of 2019 [2019] eKLR stated;
“[36] Jurisdiction goes to the root of any cause or dispute before a court of law. A court must exercise restraint to avoid overstepping its constitutional role in order to maintain its legitimacy. If a court has no jurisdiction, a judgment rendered therein does not adjudicate the dispute. It does not bind the parties, nor can it be made the foundation of any right. It is a nullity without life or authority. In short, it is coram non judice and amounts to a nullity because, as Nyarangi, JA famously said in the locus classicus, Owners of the Motor Vessel “Lillian S” v Caltex Oil, (Kenya) Ltd [1989] KLR 1, “jurisdiction is everything. Without it, a court has no power to make one more step”.
Order;
The Application is dismissed.
Dated, signed and delivered at Nairobi this 15th day of December 2025.
1) …spent.
2) That pending the hearing and determination of this Application, there be an order of stay staying further proceedings in this matter.
3) That this Honourable Court be pleased to join the intended 11th Applicant, Shepol Limited, as an Applicant in these proceedings.
4) That upon joinder, the pleadings be amended accordingly to reflect the participation of the intended 11th Applicant.
5) That costs of this Application be in the cause.
The Applicant Case:
2. It is its case that by a Letter of Acceptance dated 10th February 2022, 1st Interested Party awarded the intended 11th Applicant the tender for the construction of a Two-Storey Dormitory Block, being Tender No. ABHS/NG-CDF/02/2021, at an initial contract sum of Kshs. 46,104,260.00.
3. According to the Applicant, it was mutually agreed among the School Board, the State Department of Public Works, and intended 11th Applicant that the project would be implemented in phases, with Phase One budgeted at Kshs. 15,000,000.00, and subsequent phases to be undertaken subject to Government and NG-CDF budgetary allocations to the school.
4. It is further its case that on the 17th of February 2022, the Applicant and the intended 11th Applicant entered into a formal Contract.
5. It is further its case that the Public Works Engineers issued Interim Certificates confirming the value of the works completed.
6. The interim certificates, the amount due from the employer is the contracted amount of Kshs. 15,000,000.00 less the amount of Kshs. 11,552,800.00 (already settled by the government) bringing the sum to Kshs. 3,447,200.00.
7. It is its case that despite the completion of the works, certification the School has refused to settle the outstanding amounts.
8. This according to the Applicant is attributing the non-payment to the administrative directive issued by the Ministry of Education on 18th September 2025 directing the closure and/ or relocation of Aldai Boys High School.
9. The said impugned directive, which is the very subject of these Judicial Review proceedings, has directly halted all payments, disrupted the project, and caused intended 11th Applicant severe financial prejudice. This makes the Applicant a necessary and proper party whose participation is required for the fair and complete determination of all issues before this Court.
10. It is its case that unless it is joined as the 11th Ex Parte Applicant, its contractual and financial rights will be determined without its participation, thereby violating its constitutional rights under Articles 47, 48 and 50, and exposing it to grave injustice.
The 3rd Interested Parties Case:
11. It is its case that the Applicant has an appropriate remedy and relief in the appropriate Commercial Forum - even if they are enjoined the are in no position to prosecute a commercial claim before this court for want of jurisdiction; both in pecuniary and pursuant to Section 11 of the High Court Organization and Administration Act, and no prejudice is suffered by them lodging their Claim in the appropriate forum - a competent Court.
12. It is its case that the 1st Interested Party has not entered Appearance and it cannot be condemned unheard, as this would deny it its right to a fair Hearing and an affront to the principle of Audi alteram partem.
13. The 1st Interested Party is a Public School, and the primary contracting party with the Applicant is the Ministry of Education. It is not the children.
14. The innocent children [who are all minors] cannot be held at ransom as a collateral to negotiate for payment, whilst putting their education at stake.
15. The funding and operation of the 1st Interested Party is through the Ministry of Education and not the Children or School Fees which existed before the alleged Contract, during and after the Contract, so what prejudice shall be suffered if any.
16. The 3rd Interested Party reiterates that the issues before court are limited to the education of the Children and the decision to transfer the children to other schools within the same vicinity, which process is well underway since 2024.
17. The 1st Interested Party has not entered Appearance and there is no demonstration by the Applicant that their Claim is against the Respondents.
18. This is the Party against whom a Claim would determine a necessary party of not, and any allegations and/or claims against other parties can be prosecuted in separate proceedings.
19. In the case of Joseph Njau Kingori v Robert Maina Chege & 3 others [2002] KEHC 1192 (KLR), the learned Judge enumerated the guiding principles as thus; “the party must be a necessary party, must be a proper party, in case of a Defendant there must a be relief flowing from that Defendant to the Plaintiff; the ultimate order or decree cannot be enforced without his presence in the matter, his Presence is necessary to enable the Court to effectively and completely adjudicate upon and settle all questions involved in the suit.”
20. In Skov Estate Limited & 5 others v Agricultural Development Corporation & another [2015] ICEELC 624 (KLR); In addressing the matter of an Interested Party seeking to be added to a suit, Justice Sila Munyao made the following statement:
"In my view, for one to convince the Court that he/she needs to be enjoined to the suit as an Interested Party, such person must demonstrate that it is necessary that he/she be enjoined in the suit, so that the Court may settle all questions involved in the matter. It is not enough for one to merely show that he/she has a cursory interest in the subject matter of litigation. Litigation invariably affects many people. A Judgment or order in most cases does not only affect the litigants in the matter. It does have ramification for others as well and one may very well argue that these others have an interest in the litigation. That is a fair argument, but a mere interest, without a demonstration that the presence ofsuch party will assist in the settlement of the questions involved in the suit, is not enough to entitle one be enjoined in the suit as an Interested Party.
21. Reliance is placed in the Court of Appeal in Saminico Limited v Nfutiso (As the administrator of the Estate of Michael Mutiso Sila - Deceased) (Civil Application 235 of2019) [2025/ KECA 225 (KLR) (7 February 2025 (Ruling) cited with approval of the Civil Appeal case of Francis Karioki Muruatetu & Anor Vs Republic & 5 Others (2016) eKLR where the Court held that: One must move the Court by way of a formal Application. Enjoinment is not as of right, but is at the discretion of the court; hence, sufficient grounds must be laid before the court, on the basis of the following elements:
i. The personal interest or stake that the party has in the matter must be set out in the Application. The interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral.
ii. The prejudice to be suffered by the intended Interested Party in case of nonjoinder, must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote.
iii. Lastly, a party must, in its Application, set out the case and/or submissions it intends to make before the Court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the court.
Analysis and determination:
Following are the issue for determination;
1) Whether the Application has merit.
2) Who shall bear costs.
Whether the Application has merit.
22. The Applicants case is that it entered into a contract between the 1st interest party and the Applicant on the 17th of February 2022.
23. The Applicant’s grievance is fundamentally a claim for breach of said contract.
24. Such a claim belongs to a Commercial or the Civil Division of the High court where disputes can be heard through oral and documentary evidence. That is what the Application is presenting.
25. In the Court of Appeal’s decision in Zakia Juma Construction Co Ltd vs Permanent Secretary Ministry of Roads & Public Works & Another (2007) eKLR, it was affirmed that Judicial Review cannot be invoked to enforce contractual rights unless expressly provided in the contract itself. In that case, the Court upheld the striking out of an Application seeking to enforce contractual obligations through judicial review, holding that such matters squarely belong in the realm of ordinary civil litigation.
26. In Republic v Registrar of Companies & 5 others Exparte Midlands Company Limited [2019] eKLR the court held that;
“38. Secondly, there are alternative fora that are more appropriate to resolve the factual disputes raised in this Application, such as the Civil or Commercial Division of the High Court, where no restrictions or limitations exist as those that arise in Judicial Review”
27. Section 11(1) of the High Court (Organization and Administration) Act provides that for purposes of promoting effectiveness and efficiency in the administration of justice and promoting judicial performance, the Chief Justice may, where the workload and the number of judges in a station permit, establish any of the following divisions—
a. the Family and Children Division;
b. the Commercial Division;
c. the Admiralty Division;
d. the Civil Division;
e. the Criminal Division;
f. the Constitutional and Human Rights Division;
g. the Judicial Review Division; and
h. any other division as the Chief Justice may, on the advice of the Principal Judge determine.
28. From the evidence as presented by the Applicant as read alongside Section 11(1) of the High Court (Organization and Administration) Act, it is my considered view that the issues raised are clearly contractual in nature.
29. According to the Applicant the cause of action is attributing the non-payment to the administrative directive issued by the Ministry of Education on 18th September 2025 directing the closure and/ or relocation of Aldai Boys High School.
30. The Applicants argument that the said impugned directive, which is the very subject of these Judicial Review proceedings, has directly halted all payments, disrupted the project, and caused intended 11th Applicant severe financial prejudice.
31. This in the court’s opinion cannot make the basis for making the Applicant a necessary and proper party whose participation is required for the fair and complete determination of all issues before this Court.
32. The Applicant’s argument that unless Shepol Limited is joined as the 11th Exparte Applicant, its contractual and financial rights will be determined without its participation, thereby violating its constitutional rights under Articles 47, 48 and 50, and exposing it to grave injustice is misplaced.
33. These are issues that would be best solved at the Commercial Division of the High Court.
34. Courts do not issue orders in vain. Nothing will be ultimately achieved in allowing the Application given that the nature of judicial review proceedings do not delve into contractual issues.
35. From the Applicants arguments, it is clear that ultimately the Applicant wants the court to determine an issue of breach of contract. This court lacks the jurisdiction to issue redress for breach of contracts and I so hold. No value will be added, granting the orders sought.
Determination;
36. This court lacks jurisdiction to preside over the issues raised by the applicant as a result of which the orders sought cannot be granted.
37. The Supreme Court Case of Dickson Ngigi Ngugi v Commissioner of Lands S.C Petition No. 9 of 2019 [2019] eKLR stated;
“[36] Jurisdiction goes to the root of any cause or dispute before a court of law. A court must exercise restraint to avoid overstepping its constitutional role in order to maintain its legitimacy. If a court has no jurisdiction, a judgment rendered therein does not adjudicate the dispute. It does not bind the parties, nor can it be made the foundation of any right. It is a nullity without life or authority. In short, it is coram non judice and amounts to a nullity because, as Nyarangi, JA famously said in the locus classicus, Owners of the Motor Vessel “Lillian S” v Caltex Oil, (Kenya) Ltd [1989] KLR 1, “jurisdiction is everything. Without it, a court has no power to make one more step”.
Order;
The Application is dismissed.
Dated, signed and delivered at Nairobi this 15th day of December 2025.