Introduction
1. The Petition dated 20/3/2025 is supported by sworn affidavit of Athanas Wafula Wamunyinyi of even date.
2. The Petitioner assails the 3rd Respondent’s action of posting in its website an invitation to tender on 28/2/2025 namely, the ‘International Tender Notice, No. MOALD/SDA/IT/001/2024-2025’ requesting prospective tenderers to bid for the leasing of the public sector owned/controlled sugar companies that was set to expire on the 21/3/2025.
3. The Petitioner alleges that the said act violates Articles 10, 201 and 227 of the Constitution for reasons that there was no involvement of the public through public participation prior to taking the said action in regard to Nzoia Sugar Company; that the said tendering process will not yield value for money or lead to sustainable and profitable operation of the sugar mills to benefit the economy and stakeholders involved and further, it is exposing public assets to the risk of mismanagement and loss.
4. This matter was initially placed before the Presiding Judge of this Division, Justice E.C. Mwita on 24/3/2025 who directed service and reallocated the matter to this Court fixing a mention date of 26/3/2025 for further directions.
5. I directed reservice by physical means upon the Respondents when the matter came up on the aforementioned mention date. On 23/4/2025; the Mr. Kaumba from the Office of Attorney General appeared on behalf of all the Respondents. He notified this Court he had filed a notice of Preliminary Objection dated 15/4/2025. The Court directed that the Preliminary Objection would take precedence as it was challenge on the Court’s jurisdiction and ordered the filing of submissions on the same.
6. In the meantime, three applications seeking for joinder were filed vide Notice of Motion by the 1st Interested Party dated 28/4/2025, Notice of Motion by the 2nd Interested Party dated 6/5/2025 and the Notice of Motion dated 8/5/2025 by the 3rd & 4th Interested Party. Both the Petitioner and the Respondent, dropped their initial stance to oppose joinder to expedite focus on the Petition itself hence the Court granted leave to the Interested Parties to join the proceedings on 12/5/2025.
7. Upon admission into the proceedings, the 1st Interested Party, the 3rd & 4th Interested Parties, separately filed their respective Preliminary Objections to the Petition.
8. This ruling thus pertains to three Preliminary Objections; namely: the Respondents P.O. dated 15/4/2015, the 1st Interested Party P.O dated 13/5/2025 and the joint P.O. by the 3rd & 4th Interested Party dated 14/5/2025. The content of the said Preliminary Objections is as follows:
Respondents’ Notice Preliminary Objection dated 15/4/2025
The Preliminary Objection was filed by Kaumba S.O, Deputy Chief State Counsel on behalf of all the Respondents. It is based on grounds that:
i) It is appropriate, under the doctrine of Exhaustion of Remedies and the scheme of the Constitution under Article 159, for this Honourable Court to exercise jurisdiction over the subject matter in light of alternative redress mechanisms available under Sections 9 (1) (h) and 28 (1) of the Public Procurement and Asset Disposal Act, Cap 412C Laws of Kenya, Section 75 (1) and (4) of the Public Private Partnerships Act Cap 430 Laws of Kenya
ii) The allegation of want of public participation is without basis and is premature on account of open tendering (which in itself is an invitation to the public to participate) in light of Section 91 of the Public Procurement and Asset Disposal Act as clarified by the Court of Appeal in Independent Electoral and Boundaries Commission (IEBC) v National Super Alliance (NASA) Kenya & 6 Others [2017] eKLR.
iii) The Petition/Application cannot be considered by this Honourable Court unless and until the Court dispenses with jurisdictional question in line with the legal principle established by the Court of Appeal in Owners of Motor Vessel ‘Lilian S vs. Caltex Oil (Kenya) Limited (1989) KLR and affirmed by the Supreme Court In the Matter of the Interim Independent Electoral Commission [2011] eKLR.
9. 1st Interested Party Notice of Preliminary Objection dated 13th May, 2023.
The Preliminary objection filed by Munga Kibanga & Co. Advocates was based on the following grounds:
i) The Petition is res judicata, the issue of whether or not there was public participation having been raised and determined in Nairobi PET/065 of 2024, Martin Nyongesa Barasa vs. The Cabinet Secretary, Ministry of Treasury & Economic Planning & Others
ii) The Petition is bad in law and an abuse of the Court process.
10. 3rd & 4th Interested Parties Notice of Preliminary Objection dated 14th May, 2025
The Preliminary Objection filed by Wekesa & Simiyu Advocates was premised on the following grounds:
i) That given that the entire Petition herein challenges the procurement process leading to leasing of Nzoia Sugar Company Limited which is a public sector owned/controlled sugar company which procurement process was undertaken under the Public Procurement and Asset Disposal Act, 2015 and Regulations thereat, this Court does not have jurisdiction under the Public Procurement and Asset Disposal Act, 2015 to hear and determine this Petition in the first instance.
ii) That the subject matter of this Petition being Tender No. MOALD/SDA/IT/001/2024-2025 AS amended for leasing of Nzoia Sugar Company Limited, a Public Sector owned/controlled sugar company, having previously litigated in Petition No. E065 of 2024 save for the period now being 2024-2025 instead of 2023 to 2024 and Petition E262 of 2020 in this Court and judgments delivered, the Petition herein is res judicata and this Court does not have jurisdiction to relitigate the same issue over and over again.
iii) That this Court having determined the issue the subject matter of this Petition being Tender No. MOALD/SDA/IT/001/2024-2025 as amended for Leasing of Nzoia Sugar Company Limited, a public owned/controlled sugar company in the two previous petitions being E065 of 2024 and E262 of 2020 and rendered judgments, the Court lacks jurisdiction to sit on its own appeal and rehear the same issue.
iv) That the Petition and the Notice of Motion herein are res-subjudice as there exists a Notice of Motion dated 10/2/2025 filed in Petition No. E065 of 2024 Martin Nyongesa Barasa before this Court over the same subject matter in which the Petitioner is agitating seeking the same reliefs, claims as those in this Petition; and
v) That it is meet and in furtherance of the overriding objectives of Article 159 (2) of the Constitution and Rules made thereunder for timely disposal of proceedings that this Court peremptorily strike out the Petition and the Notice of Motion as an abuse of the process of the Court with costs.
11. Grounds of Opposition dated 27/4/2025 in response to the Respondents’ Notice of Preliminary Objection dated 15/4/2025 were filed by the Petitioner responding as follows:
(i) THAT the said Preliminary Objection is misplaced, premature and an attempt to summarily defeat the Petitioner/Applicant’s Application without affording a hearing on the constitutional issues raised.
(ii) THAT for clarity, the Petition and Application do not seek to challenge the procurement process in isolation or on technical grounds under the Public Procurement and Asset Disposal Act. Rather, the Petition and Application challenge the Constitutionality, legality, and propriety of the entire process, starting from the inception of the decision to lease Nzoia Sugar Company, the absence of public participation, and the lack of a lawful and transparent framework guiding that decision.
(iii) THAT the doctrine of exhaustion is not absolute and does not bar the Honourable Court from exercising its jurisdiction under Article 165(3) of the Constitution of Kenya 2010 where constitutional rights are alleged to have been violated.
(iv) THAT the Petitioner/Applicant’s Application raises fundamental constitutional issues including violation of the right to public participation (Article 10 of the Constitution of Kenya 2010), fair administrative action (Article 47 of the Constitution of Kenya 2010), and legitimate expectation.
(v) THAT there exists no adequate or suitable alternative remedy under the Public Procurement and Asset Disposal Act or the Public Private Partnerships Act to address the constitutional grievances raised by the Petitioner/Applicant.
(vi) THAT the High Court has unfettered jurisdiction under Article 165(3) (d) of the Constitution of Kenya 2010 to determine whether a right or freedom in the Bill of Rights has been violated.
(vii) THAT the issue of public participation cannot be addressed by mere publication of a tender, public participation must be meaningful and not superficial.
(viii) THAT the Preliminary Objection raises matters requiring evidence and interpretation of constitutional provisions and is therefore not a pure point of law.
(ix) THAT the Preliminary Objection is without merit and designed to delay the just hearing and determination of the Petitioner/Applicant’s Application.
(x) THAT it is in the public interest and the interest of justice that this Honourable Court dismisses the Preliminary Objection dated 15th April 2025 filed by the Respondents.
12. The Petitioner equally filed Grounds of Opposition dated 16/5/2025 responding to the 1st Interested Party’s Preliminary Objection dated 13th May, 2025 and in answer thereto stated thus:
(i) THAT the said Preliminary Objection is misplaced, premature, and an attempt to summarily defeat the Petitioner/Applicant’s Application without affording a hearing on the constitutional issues raised.
(ii) THAT the doctrine of res judicata is inapplicable in this matter as the Petition challenges a fresh procurement process, being International Tender Notice No. MOALD/SDA/IT/001/2024/2025, whose legality and procedural integrity have never been adjudicated upon in any previous litigation.
(iii) THAT for clarity, the Petition and Application do not seek to challenge the procurement process in isolation or on technical grounds under the Public Procurement and Asset Disposal Act. Rather, the Petition and Application challenge the Constitutionality, legality, and propriety of the entire process, starting from the inception of the decision to lease Nzoia Sugar Company, the absence of public participation, and the lack of a lawful and transparent framework guiding that decision.
(iv)THAT there is no similarity of parties, cause of action, or issues between the current Petition and any previously determined case, a prerequisite for the doctrine of res judicata to apply under Section 7 of the Civil Procedure Act.
(iv) THAT the Petitioner/Applicant’s Application raises fundamental constitutional issues, including violation of the right to public participation (Article 10 of the Constitution of Kenya 2010), fair administrative action (Article 47 of the Constitution of Kenya 2010), and legitimate expectation.
(v) THAT the 1 st Interested Party’s Preliminary Objection is a thinly veiled attempt to shield the Respondents from judicial scrutiny and frustrate constitutional litigation, contrary to the principles in Articles 22, 23, 48, and 258 of the Constitution of Kenya 2010.
(vi) THAT the 1st Interested Party lacks legal standing to raise the objection on res judicata, as it is a matter of law and fact properly left to the primary Respondents.
(vii) THAT the issue of public participation cannot be addressed by mere publication of a tender, public participation must be meaningful and not superficial.
(viii) THAT the Preliminary Objection raises matters requiring evidence and interpretation of constitutional provisions and is therefore not a pure point of law. (x)THAT the Preliminary Objection raises factual disputes requiring evidentiary interrogation, which disqualifies it from being determined as a pure point of law.
(xi) THAT the Preliminary Objection is without merit and designed to delay the just hearing and determination of the Petitioner/Applicant’s Application.
(xii) THAT it is in the Public interest and the interest of justice that this Honourable Court dismisses the Preliminary Objection dated 13/5/ 2025.
Case Submissions
Respondents’ Submissions in support of notice of preliminary objection dated 15/4/2025
13. Deputy Chief State Counsel, Mr. Kaumba S.O, filed written submissions dated 24/4/2025 on behalf of all the Respondents.
14. Mr. Kaumba submitted that the that the cause of action challenges the tendering process for the international tender Notice No. MOALD/SDA/IT/001/2024/2025.
15. He argued that Article 227 of the Constitution demands for a value-based system of public procurement premised on a system that is fair, equitable, transparent, competitive and cost effective and sub-article (2) thereof contemplates a procurement framework based on an Act of Parliament.
16. He submitted that in the light of this, Parliament enacted the Public Procurement and Asset Disposal Act, (PPADA) Cap 412C Laws of Kenya, and the Public Private Partnerships Act Cap 430 (PPPA) Laws of Kenya, that regulate public procurement depending on the subject matter.
17. He argued that under Section 9(1)(h) of the Public Procurement and Asset Disposal Act, the Public Procurement Regulatory Authority which is established under section 8 has the mandate to investigate and act on complaints received on procurement and asset disposal proceedings emanating from procuring entities, tenderers, contractors or the general public that are not subject of administrative review. It was thus Mr. Kaumba’s contention that Petitioners were obliged to lodge the whatever complaint they may have had with the Public Procurement Regulatory Authority which under section 9(1) (c), the Public Procurement Regulatory Authority has power to enforce the standards stipulated in the Act.
18. Further, that under section 28(1) of the Act, the Public Procurement Administrative Review Board, established under section 27, has the mandate that covers the following:
(a) reviewing, hearing and determining tendering and asset disposal disputes; and
(b) to perform any other function conferred to the Review Board by this Act, Regulations or any other written law.
19. Mr. Kaumba further contended that because the tendering process anticipated a public-private partnership the leasing of the sugar factory; it is subject to the provisions of Public Private Partnerships in which section 75(1) provides for establishment of a Petition Committee that is for and is tasked with the hearing and determining petitions on any decision by the Committee, Directorate or a Contracting authority under the Act. That pursuant to Section 9 (4), any person who is aggrieved by a decision of the Directorate, Committee or a contracting authority regarding a tender process or project agreement may lodge a petition for the review of the decision by the Petition Committee.
20. He submitted that this Petition has been filed invoking the jurisdiction of the Court without prior exhaustion the available statutory remedies. He relied on the Supreme Court case of Waity v Independent Electoral & Boundaries Commission & 3 others (Petition 33 of 2018) [2019] KESC 54 (KLR) (8 February 2019) (Judgment).
21. In regard to the allegation that there was no meaningful public participation, Mr. Kaumba countered that the allegation is premature and made without any basis at all. He relied on the Independent Electoral and Boundaries Commission (IEBC) v National Super Alliance (NASA) Kenya & 6 others [2017] eKLR where the Court of Appeal held as follows:
“168. Public participation in procurement process is achieved largely through invitation of members of the public to bid and submit tenders for procurement of goods, works or services. The invitation is ordinarily done through competitive and open advertisement to the public. Section 91 (1) of Public Procurement and Asset Disposal Act, 2015 echoes this by stipulating that open tendering shall be the preferred procurement method for goods, works and services. Section 91 (2) of the Public Procurement and Asset Disposal Act, 2015 permits a procuring entity to use alternative procurement procedure if allowed by law and stipulated conditions are satisfied. A common theme when alternative procurement procedure is adopted is that the scope of public participation through competitive bidding is reduced and progressively eliminated as we approach the direct procurement method.”
22. Mr. Kaumba questioned the Petitioner’s claim that there was no public participation on the instant tender when this Petition was filed at a time when the open international competitive tender was still under progress following its advertisement in the media with wide circulation and was available on various portals.
23. Further, that other tendering processes had not even commenced including tender opening, technical evaluation and financial evaluation.
24. The Respondents maintained that in the absence of an allegation that some members public were locked out or rigged out from the process, the allegation of lack of public participation cannot be sustained. He relied on John Harun Mwau & 3 others vAttorney General & 2 others [2012] eKLR where the High Court observed thus:
“118.We also agree with the submissions of Prof. Ghai that this court should not deal with hypothetical and academic issues. In our view, it is correct to state that the jurisdiction to interpret the Constitution conferred under article 165(3)(d) does not exist in a vacuum and it is not exercised independently in the absence of a real dispute. It is exercised in the context of a dispute or controversy...”
25. Mr. Kaumba submitted that the Petitioners were mechanically tossing out allegations of lack of public participation without any specificity and thus does meet the threshold set by the in Court of Appeal in Mumo Matemu v. Trusted Society of Human Rights Alliance & 5 others [2013] eKLR where the Court emphasized the importance defining claims precisely to prevent the issues being enlarged by narrowing the parties to definite issues in order to alleviate the expense and delay, especially, as regards the amount of testimony required from either side at the hearing.
26. It was also contended on behalf of the Respondents that the issue of public participation in the tendering process as pertains Nzoia Sugar Factory was conclusively determined by Justice Mwita in HCCHRPET/E065/2024 -Martin Nyongesa Barasa Vs State Law and Ministry of Agriculture, Livestock and Fisheries) where he found that there was prior public engagement that led to the recommendations that sugar companies would be put on leasing. The Judge held thus:
“The replying affidavit by Prof. Ndung’u filed in response to the petition and the annextures thereto show that although initially approval had been given for privatization of the sugar companies, that position was shelved when the National Assembly approved long term leasing following recommendations from the Joint Committees. Indeed, the report signed on 14th September 2023 by the Joint Committees on Finance and National Planning and that on Agriculture and Livestock, attached to the affidavit as “LK11” and submitted to the National Assembly, recommended, among others, approval of the leasing of five (5) sugar companies under the provisions of the Public Privat Partnership Act; that the House vacates the privatization model that had been earlier approved by the National Assembly in 2015 and approval of the decision of the Cabinet to write off tax arrears owed by the five (5) sugar companies (Nzoia; Chemelil; Muhoroni; Miwani and South Nyanza Sugar Companies). The report was prepared after stakeholders’ engagement with the joint committees and contains the views received from the people who appeared before the joint committees. The report was tabled before the National Assembly; the National Assembly vacated the privatization model approved in 2015; approved the leasing model as well as the Cabinet decision to write off debts owed by the sugar companies as recommended in the joint committees’ report. Following adoption of the recommendations, the Ministry of Agriculture and Livestock issued the impugned international tender notice inviting bids for the leasing of the sugar companies. This is in annex “LK1” in the replying affidavit which showed that the tender notice invited bids for leasing of the sugar companies and not privatisation.”
27. The Respondents thus urged that this Petition be dismissed.
1st Interested Party Submissions in Support of Preliminary Objection Dated 13/5/2025
28. The 1st interested Party filed submissions dated 13/5/2025 through the firm of Munga Kibanga & Co. Advocates.
29. The 1st interested Party lunged at the Petitioners claim that there was no public participation prior to the process leading to issuance of the international tender notice. He pointed out that the issue raised and dealt with in a previous trial on the same subject matter hence is res judicata having been conclusively determined by the High Court in the case of Barasa v Cabinet Secretary, Ministry of Treasury & Economic Planning & 3 others (Petition 065 of 2024) (2025) KEHC 1455 (KLR) (Constitutional and Human Rights) (28 February 2025).
30. Counsel, citing Section 7 of the Civil Procedure Act hammered home the importance of res-judicata principle which he supported through the Court of Appeal in John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & Others [2015] KECA 472 KLR where it was held that the principle of res judicata is not a mere technicality but a principle that goes to the root of the suit and upholds the public interest that there should be an end to litigation and also, it serves the aim of ensuring that a party is protected from repetitive litigation on the same subject matter.
31. It was submitted that res judicata is available in two principal ways: cause of action res judicata and issue-based res judicata.
32. Counsel highlighted the prayers that were sought in previous matter, Petition E065 of 2024 and maintained that these prayers are principally similar to what the instant Petition is also seeking. He submitted that in the previous case, its prayers were pegged allegation encapsulated in paragraph 4 of the Court decision in PET 065 of 2024 that stated thus:
‘the privatisation of the sugar companies through long term leases was being done without public participation in violation of the Constitution’
33. Counsel argued that the Court addressed the issue at paragraph 37 of the Judgment in Petition E065 of 2024 and arriving at the conclusion contained in paragraph 44 where the Court held:
“In this respect, the Respondent demonstrated through documentary evidence that there was stakeholders’ engagement and the National Assembly approved leasing of the sugar companies”
34. Counsel contended on behalf of the 1st Interested Party that even the prayers in the instant Petition, particularly prayers 1, 2, 3, 4 and 5 are analogous to prayers a, b, c, f & g in the former suit, Petition E065 of 2024 with only some minor differences in the tender number but the subject matter is the same.
35. That even the parties, other than the Petitioner are also the same hence is an attempt to revive an already concluded matter disguised as public interest litigation yet the matter was concluded on merits vide Petition E065 of 2024 and the interest of the Petitioner as a member of public is deemed to have been represented in that suit which was also initiated in public interest.
3rd and 4th Interested Parties Submissions in support of their Preliminary Objection dated 14/5/2025
36. Wekesa and Simiyu Advocates filed written submissions dated 14/5/2025 in support of the 3rd and 4th Interested Parties' preliminary objection dated 14th May, 2025.
37. The 3rd and 4th Interested Party submitted that the main ground upon which the Petitioner seeks to nullify the tender for leasing Nzoia Sugar Company is the allegation there was no public participation and/or meaningful public participation but this issue is res-judicata having been the subject of three previous Constitutional Petitions and Judicial Review where these issues were determined with finality by the High Court and no appeal was lodged to the Court of Appeal. These cases are: Nzuki Musyoki vs. Agriculture and Food Authority and Attorney General Petition No. E262 of 2020 Nairobi [2002] КЕНС 525 (KLR); Martin Nyongesa Barasa vs. The Cabinet Secretary Ministry of Treasury and Economic Planning and Others, Petition No. E065 of 2024 Nairobi [2025] eKLR and Republic v Cabinet Secretary, Ministry of Agriculture Livestock & Fisheries; Otieno (Exparte Applicant); Agriculture & Food Authority (Interested Party) (Judicial Review Miscellaneous Application 11 of 2020) [2023] KЕНC 2359 (KLR) (16 March 2023) (Judgment).
38. The 3rd and 4th Interested Parties argued that Petition No. E065 of 2024 at Milimani, (supra) dealt with the issue of the alleged lack of public participation in the leasing process of Nzoia Sugar Company Limited (which is also at the core of this petition) and Justice Mwita found that "the Respondents demonstrated through documentary evidence that there was stakeholders' engagement and the National Assembly approved leasing of the sugar companies, " and dismissed the Petition.
39. As such, it was argued that under the issue-based estoppel, the Petitioner herein is precluded from raising the same issues that had been litigated and determined by this Court in three other cases which issues are now res judicata.
40. He relied on a three-judge bench decision of Matindi & 3 others v The National Assembly of Kenya & 4 others; [2023] KЕНС 19534 (KLR) the Judges held:
"We do not think that a court ought to re litigate the same issues over and over, each time a new party files a petition relating to the same subject matter. To do so would lead to an absurd outcome and embarrass the court with contradicting decisions."
41. It was thus submitted that the issue of public participation in the leasing of Nzoia Sugar Company Limited having been previously litigated and determined in three previous petitions/application E262 of 2020, E065 of 2024 and JR No 11 of 2020, cannot be re-litigated in the present petition hence the same should be struck out.
42. Further, the contention that because the Petition raises Constitutional issues, they are incapable of being addressed by Public Administrative Review Board was matter that was raised and deflated by the Judgement of Justice Ongudi in Petition No. 262 of 2020 of 3rd May 2022.
43. On exhaustion of local remedies, Counsel submitted that the subject matter of the petition is the Tender No. MOALD/SDA/IT/001/2024-2025 as amended which deals with leasing of Nzoia Sugar Company Limited, a procurement process initiated under the Public Procurement and Asset Disposal Act, 2015 (the PPADA 2015) of which the Public Procurement Administrative Review Board has the power to review, hear and determine tendering and asset disposal disputes.
44. Counsel further cited the Supreme Court case of the Communications Commission of Kenya and others vs. Royal Media Services LTD & Others [2014] eKLR where it was held that where legislation has been enacted to give effect to a constitutional right, it is not permissible for a litigant to found a cause of action directly on the Constitution without challenging the legislation in question, in this case, the Public Procurement and Assets Disposal Act.
45. It was the 3rd and 4th Interested Party’s submission that the Petitioner, if aggrieved with the present International Tender for Leasing Nzoia Sugar Company Limited the subject of this Petition, should have approached the Public Procurement Administrative Review Board under the Public Procurement and Asset Disposal Act, 2015 and not this Court as enunciated as was held by the Supreme Court in Albert Chaurembo Mumbo & 7 others v Maurice Munyao & 148 others [2019] eKLR as also done by this Court in similar suits filed over the same subject matter of leasing of Nzoia Sugar Company Limited in Nzuki Musyoki vs. Agriculture and Food Authority and Attorney General [supra] and Republic v Cabinet Secretary, Ministry of Agriculture Livestock & Fisheries; Otieno (Exparte Applicant); Agriculture & Food Authority (Interested Party) (supra) on the basis that the Court did not have jurisdiction as the Applicant ought to have approached the Public Procurement Administrative Review Board and, that further, public participation had been carried out.
Petitioner’s written Submissions in Opposition to the 3rd and 4th interested parties’ preliminary objection dated 14th may 2025
46. In opposition to the 3rd and 4th Interested Parties’ Preliminary Objection dated 14th May 2025, the Petitioner filed written dated 16/5/2025 through Wamalwa & Echesa Company Advocates.
47. It was argued on behalf of the Petitioner that the Petition challenges the constitutionality of the Respondents’ decision to lease Nzoia Sugar Company through a public tender process without adequate public participation.
48. The Petitioner began by restating the brief facts upon which the Petition is founded.
49. He explained that on or about 28th February, 2025, the 3rd Respondent’s Ministry posted an invitation to tender on their website, to wit, ‘International Tender Notice, No. MOALD/SDA/IT/ 001/2024-2025’ for prospective tenderers to bid for the leasing of the public sector owned/controlled sugar company.
50. According to the Petitioner this was done abruptly without any consultation with the members of the public or any meaningful and adequate public participation be carried out hence was a contravention of Articles 10, 201, and 227 of the Constitution of Kenya f
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1. The Petition dated 20/3/2025 is supported by sworn affidavit of Athanas Wafula Wamunyinyi of even date.
2. The Petitioner assails the 3rd Respondent’s action of posting in its website an invitation to tender on 28/2/2025 namely, the ‘International Tender Notice, No. MOALD/SDA/IT/001/2024-2025’ requesting prospective tenderers to bid for the leasing of the public sector owned/controlled sugar companies that was set to expire on the 21/3/2025.
3. The Petitioner alleges that the said act violates Articles 10, 201 and 227 of the Constitution for reasons that there was no involvement of the public through public participation prior to taking the said action in regard to Nzoia Sugar Company; that the said tendering process will not yield value for money or lead to sustainable and profitable operation of the sugar mills to benefit the economy and stakeholders involved and further, it is exposing public assets to the risk of mismanagement and loss.
4. This matter was initially placed before the Presiding Judge of this Division, Justice E.C. Mwita on 24/3/2025 who directed service and reallocated the matter to this Court fixing a mention date of 26/3/2025 for further directions.
5. I directed reservice by physical means upon the Respondents when the matter came up on the aforementioned mention date. On 23/4/2025; the Mr. Kaumba from the Office of Attorney General appeared on behalf of all the Respondents. He notified this Court he had filed a notice of Preliminary Objection dated 15/4/2025. The Court directed that the Preliminary Objection would take precedence as it was challenge on the Court’s jurisdiction and ordered the filing of submissions on the same.
6. In the meantime, three applications seeking for joinder were filed vide Notice of Motion by the 1st Interested Party dated 28/4/2025, Notice of Motion by the 2nd Interested Party dated 6/5/2025 and the Notice of Motion dated 8/5/2025 by the 3rd & 4th Interested Party. Both the Petitioner and the Respondent, dropped their initial stance to oppose joinder to expedite focus on the Petition itself hence the Court granted leave to the Interested Parties to join the proceedings on 12/5/2025.
7. Upon admission into the proceedings, the 1st Interested Party, the 3rd & 4th Interested Parties, separately filed their respective Preliminary Objections to the Petition.
8. This ruling thus pertains to three Preliminary Objections; namely: the Respondents P.O. dated 15/4/2015, the 1st Interested Party P.O dated 13/5/2025 and the joint P.O. by the 3rd & 4th Interested Party dated 14/5/2025. The content of the said Preliminary Objections is as follows:
Respondents’ Notice Preliminary Objection dated 15/4/2025
The Preliminary Objection was filed by Kaumba S.O, Deputy Chief State Counsel on behalf of all the Respondents. It is based on grounds that:
i) It is appropriate, under the doctrine of Exhaustion of Remedies and the scheme of the Constitution under Article 159, for this Honourable Court to exercise jurisdiction over the subject matter in light of alternative redress mechanisms available under Sections 9 (1) (h) and 28 (1) of the Public Procurement and Asset Disposal Act, Cap 412C Laws of Kenya, Section 75 (1) and (4) of the Public Private Partnerships Act Cap 430 Laws of Kenya
ii) The allegation of want of public participation is without basis and is premature on account of open tendering (which in itself is an invitation to the public to participate) in light of Section 91 of the Public Procurement and Asset Disposal Act as clarified by the Court of Appeal in Independent Electoral and Boundaries Commission (IEBC) v National Super Alliance (NASA) Kenya & 6 Others [2017] eKLR.
iii) The Petition/Application cannot be considered by this Honourable Court unless and until the Court dispenses with jurisdictional question in line with the legal principle established by the Court of Appeal in Owners of Motor Vessel ‘Lilian S vs. Caltex Oil (Kenya) Limited (1989) KLR and affirmed by the Supreme Court In the Matter of the Interim Independent Electoral Commission [2011] eKLR.
9. 1st Interested Party Notice of Preliminary Objection dated 13th May, 2023.
The Preliminary objection filed by Munga Kibanga & Co. Advocates was based on the following grounds:
i) The Petition is res judicata, the issue of whether or not there was public participation having been raised and determined in Nairobi PET/065 of 2024, Martin Nyongesa Barasa vs. The Cabinet Secretary, Ministry of Treasury & Economic Planning & Others
ii) The Petition is bad in law and an abuse of the Court process.
10. 3rd & 4th Interested Parties Notice of Preliminary Objection dated 14th May, 2025
The Preliminary Objection filed by Wekesa & Simiyu Advocates was premised on the following grounds:
i) That given that the entire Petition herein challenges the procurement process leading to leasing of Nzoia Sugar Company Limited which is a public sector owned/controlled sugar company which procurement process was undertaken under the Public Procurement and Asset Disposal Act, 2015 and Regulations thereat, this Court does not have jurisdiction under the Public Procurement and Asset Disposal Act, 2015 to hear and determine this Petition in the first instance.
ii) That the subject matter of this Petition being Tender No. MOALD/SDA/IT/001/2024-2025 AS amended for leasing of Nzoia Sugar Company Limited, a Public Sector owned/controlled sugar company, having previously litigated in Petition No. E065 of 2024 save for the period now being 2024-2025 instead of 2023 to 2024 and Petition E262 of 2020 in this Court and judgments delivered, the Petition herein is res judicata and this Court does not have jurisdiction to relitigate the same issue over and over again.
iii) That this Court having determined the issue the subject matter of this Petition being Tender No. MOALD/SDA/IT/001/2024-2025 as amended for Leasing of Nzoia Sugar Company Limited, a public owned/controlled sugar company in the two previous petitions being E065 of 2024 and E262 of 2020 and rendered judgments, the Court lacks jurisdiction to sit on its own appeal and rehear the same issue.
iv) That the Petition and the Notice of Motion herein are res-subjudice as there exists a Notice of Motion dated 10/2/2025 filed in Petition No. E065 of 2024 Martin Nyongesa Barasa before this Court over the same subject matter in which the Petitioner is agitating seeking the same reliefs, claims as those in this Petition; and
v) That it is meet and in furtherance of the overriding objectives of Article 159 (2) of the Constitution and Rules made thereunder for timely disposal of proceedings that this Court peremptorily strike out the Petition and the Notice of Motion as an abuse of the process of the Court with costs.
11. Grounds of Opposition dated 27/4/2025 in response to the Respondents’ Notice of Preliminary Objection dated 15/4/2025 were filed by the Petitioner responding as follows:
(i) THAT the said Preliminary Objection is misplaced, premature and an attempt to summarily defeat the Petitioner/Applicant’s Application without affording a hearing on the constitutional issues raised.
(ii) THAT for clarity, the Petition and Application do not seek to challenge the procurement process in isolation or on technical grounds under the Public Procurement and Asset Disposal Act. Rather, the Petition and Application challenge the Constitutionality, legality, and propriety of the entire process, starting from the inception of the decision to lease Nzoia Sugar Company, the absence of public participation, and the lack of a lawful and transparent framework guiding that decision.
(iii) THAT the doctrine of exhaustion is not absolute and does not bar the Honourable Court from exercising its jurisdiction under Article 165(3) of the Constitution of Kenya 2010 where constitutional rights are alleged to have been violated.
(iv) THAT the Petitioner/Applicant’s Application raises fundamental constitutional issues including violation of the right to public participation (Article 10 of the Constitution of Kenya 2010), fair administrative action (Article 47 of the Constitution of Kenya 2010), and legitimate expectation.
(v) THAT there exists no adequate or suitable alternative remedy under the Public Procurement and Asset Disposal Act or the Public Private Partnerships Act to address the constitutional grievances raised by the Petitioner/Applicant.
(vi) THAT the High Court has unfettered jurisdiction under Article 165(3) (d) of the Constitution of Kenya 2010 to determine whether a right or freedom in the Bill of Rights has been violated.
(vii) THAT the issue of public participation cannot be addressed by mere publication of a tender, public participation must be meaningful and not superficial.
(viii) THAT the Preliminary Objection raises matters requiring evidence and interpretation of constitutional provisions and is therefore not a pure point of law.
(ix) THAT the Preliminary Objection is without merit and designed to delay the just hearing and determination of the Petitioner/Applicant’s Application.
(x) THAT it is in the public interest and the interest of justice that this Honourable Court dismisses the Preliminary Objection dated 15th April 2025 filed by the Respondents.
12. The Petitioner equally filed Grounds of Opposition dated 16/5/2025 responding to the 1st Interested Party’s Preliminary Objection dated 13th May, 2025 and in answer thereto stated thus:
(i) THAT the said Preliminary Objection is misplaced, premature, and an attempt to summarily defeat the Petitioner/Applicant’s Application without affording a hearing on the constitutional issues raised.
(ii) THAT the doctrine of res judicata is inapplicable in this matter as the Petition challenges a fresh procurement process, being International Tender Notice No. MOALD/SDA/IT/001/2024/2025, whose legality and procedural integrity have never been adjudicated upon in any previous litigation.
(iii) THAT for clarity, the Petition and Application do not seek to challenge the procurement process in isolation or on technical grounds under the Public Procurement and Asset Disposal Act. Rather, the Petition and Application challenge the Constitutionality, legality, and propriety of the entire process, starting from the inception of the decision to lease Nzoia Sugar Company, the absence of public participation, and the lack of a lawful and transparent framework guiding that decision.
(iv)THAT there is no similarity of parties, cause of action, or issues between the current Petition and any previously determined case, a prerequisite for the doctrine of res judicata to apply under Section 7 of the Civil Procedure Act.
(iv) THAT the Petitioner/Applicant’s Application raises fundamental constitutional issues, including violation of the right to public participation (Article 10 of the Constitution of Kenya 2010), fair administrative action (Article 47 of the Constitution of Kenya 2010), and legitimate expectation.
(v) THAT the 1 st Interested Party’s Preliminary Objection is a thinly veiled attempt to shield the Respondents from judicial scrutiny and frustrate constitutional litigation, contrary to the principles in Articles 22, 23, 48, and 258 of the Constitution of Kenya 2010.
(vi) THAT the 1st Interested Party lacks legal standing to raise the objection on res judicata, as it is a matter of law and fact properly left to the primary Respondents.
(vii) THAT the issue of public participation cannot be addressed by mere publication of a tender, public participation must be meaningful and not superficial.
(viii) THAT the Preliminary Objection raises matters requiring evidence and interpretation of constitutional provisions and is therefore not a pure point of law. (x)THAT the Preliminary Objection raises factual disputes requiring evidentiary interrogation, which disqualifies it from being determined as a pure point of law.
(xi) THAT the Preliminary Objection is without merit and designed to delay the just hearing and determination of the Petitioner/Applicant’s Application.
(xii) THAT it is in the Public interest and the interest of justice that this Honourable Court dismisses the Preliminary Objection dated 13/5/ 2025.
Case Submissions
Respondents’ Submissions in support of notice of preliminary objection dated 15/4/2025
13. Deputy Chief State Counsel, Mr. Kaumba S.O, filed written submissions dated 24/4/2025 on behalf of all the Respondents.
14. Mr. Kaumba submitted that the that the cause of action challenges the tendering process for the international tender Notice No. MOALD/SDA/IT/001/2024/2025.
15. He argued that Article 227 of the Constitution demands for a value-based system of public procurement premised on a system that is fair, equitable, transparent, competitive and cost effective and sub-article (2) thereof contemplates a procurement framework based on an Act of Parliament.
16. He submitted that in the light of this, Parliament enacted the Public Procurement and Asset Disposal Act, (PPADA) Cap 412C Laws of Kenya, and the Public Private Partnerships Act Cap 430 (PPPA) Laws of Kenya, that regulate public procurement depending on the subject matter.
17. He argued that under Section 9(1)(h) of the Public Procurement and Asset Disposal Act, the Public Procurement Regulatory Authority which is established under section 8 has the mandate to investigate and act on complaints received on procurement and asset disposal proceedings emanating from procuring entities, tenderers, contractors or the general public that are not subject of administrative review. It was thus Mr. Kaumba’s contention that Petitioners were obliged to lodge the whatever complaint they may have had with the Public Procurement Regulatory Authority which under section 9(1) (c), the Public Procurement Regulatory Authority has power to enforce the standards stipulated in the Act.
18. Further, that under section 28(1) of the Act, the Public Procurement Administrative Review Board, established under section 27, has the mandate that covers the following:
(a) reviewing, hearing and determining tendering and asset disposal disputes; and
(b) to perform any other function conferred to the Review Board by this Act, Regulations or any other written law.
19. Mr. Kaumba further contended that because the tendering process anticipated a public-private partnership the leasing of the sugar factory; it is subject to the provisions of Public Private Partnerships in which section 75(1) provides for establishment of a Petition Committee that is for and is tasked with the hearing and determining petitions on any decision by the Committee, Directorate or a Contracting authority under the Act. That pursuant to Section 9 (4), any person who is aggrieved by a decision of the Directorate, Committee or a contracting authority regarding a tender process or project agreement may lodge a petition for the review of the decision by the Petition Committee.
20. He submitted that this Petition has been filed invoking the jurisdiction of the Court without prior exhaustion the available statutory remedies. He relied on the Supreme Court case of Waity v Independent Electoral & Boundaries Commission & 3 others (Petition 33 of 2018) [2019] KESC 54 (KLR) (8 February 2019) (Judgment).
21. In regard to the allegation that there was no meaningful public participation, Mr. Kaumba countered that the allegation is premature and made without any basis at all. He relied on the Independent Electoral and Boundaries Commission (IEBC) v National Super Alliance (NASA) Kenya & 6 others [2017] eKLR where the Court of Appeal held as follows:
“168. Public participation in procurement process is achieved largely through invitation of members of the public to bid and submit tenders for procurement of goods, works or services. The invitation is ordinarily done through competitive and open advertisement to the public. Section 91 (1) of Public Procurement and Asset Disposal Act, 2015 echoes this by stipulating that open tendering shall be the preferred procurement method for goods, works and services. Section 91 (2) of the Public Procurement and Asset Disposal Act, 2015 permits a procuring entity to use alternative procurement procedure if allowed by law and stipulated conditions are satisfied. A common theme when alternative procurement procedure is adopted is that the scope of public participation through competitive bidding is reduced and progressively eliminated as we approach the direct procurement method.”
22. Mr. Kaumba questioned the Petitioner’s claim that there was no public participation on the instant tender when this Petition was filed at a time when the open international competitive tender was still under progress following its advertisement in the media with wide circulation and was available on various portals.
23. Further, that other tendering processes had not even commenced including tender opening, technical evaluation and financial evaluation.
24. The Respondents maintained that in the absence of an allegation that some members public were locked out or rigged out from the process, the allegation of lack of public participation cannot be sustained. He relied on John Harun Mwau & 3 others vAttorney General & 2 others [2012] eKLR where the High Court observed thus:
“118.We also agree with the submissions of Prof. Ghai that this court should not deal with hypothetical and academic issues. In our view, it is correct to state that the jurisdiction to interpret the Constitution conferred under article 165(3)(d) does not exist in a vacuum and it is not exercised independently in the absence of a real dispute. It is exercised in the context of a dispute or controversy...”
25. Mr. Kaumba submitted that the Petitioners were mechanically tossing out allegations of lack of public participation without any specificity and thus does meet the threshold set by the in Court of Appeal in Mumo Matemu v. Trusted Society of Human Rights Alliance & 5 others [2013] eKLR where the Court emphasized the importance defining claims precisely to prevent the issues being enlarged by narrowing the parties to definite issues in order to alleviate the expense and delay, especially, as regards the amount of testimony required from either side at the hearing.
26. It was also contended on behalf of the Respondents that the issue of public participation in the tendering process as pertains Nzoia Sugar Factory was conclusively determined by Justice Mwita in HCCHRPET/E065/2024 -Martin Nyongesa Barasa Vs State Law and Ministry of Agriculture, Livestock and Fisheries) where he found that there was prior public engagement that led to the recommendations that sugar companies would be put on leasing. The Judge held thus:
“The replying affidavit by Prof. Ndung’u filed in response to the petition and the annextures thereto show that although initially approval had been given for privatization of the sugar companies, that position was shelved when the National Assembly approved long term leasing following recommendations from the Joint Committees. Indeed, the report signed on 14th September 2023 by the Joint Committees on Finance and National Planning and that on Agriculture and Livestock, attached to the affidavit as “LK11” and submitted to the National Assembly, recommended, among others, approval of the leasing of five (5) sugar companies under the provisions of the Public Privat Partnership Act; that the House vacates the privatization model that had been earlier approved by the National Assembly in 2015 and approval of the decision of the Cabinet to write off tax arrears owed by the five (5) sugar companies (Nzoia; Chemelil; Muhoroni; Miwani and South Nyanza Sugar Companies). The report was prepared after stakeholders’ engagement with the joint committees and contains the views received from the people who appeared before the joint committees. The report was tabled before the National Assembly; the National Assembly vacated the privatization model approved in 2015; approved the leasing model as well as the Cabinet decision to write off debts owed by the sugar companies as recommended in the joint committees’ report. Following adoption of the recommendations, the Ministry of Agriculture and Livestock issued the impugned international tender notice inviting bids for the leasing of the sugar companies. This is in annex “LK1” in the replying affidavit which showed that the tender notice invited bids for leasing of the sugar companies and not privatisation.”
27. The Respondents thus urged that this Petition be dismissed.
1st Interested Party Submissions in Support of Preliminary Objection Dated 13/5/2025
28. The 1st interested Party filed submissions dated 13/5/2025 through the firm of Munga Kibanga & Co. Advocates.
29. The 1st interested Party lunged at the Petitioners claim that there was no public participation prior to the process leading to issuance of the international tender notice. He pointed out that the issue raised and dealt with in a previous trial on the same subject matter hence is res judicata having been conclusively determined by the High Court in the case of Barasa v Cabinet Secretary, Ministry of Treasury & Economic Planning & 3 others (Petition 065 of 2024) (2025) KEHC 1455 (KLR) (Constitutional and Human Rights) (28 February 2025).
30. Counsel, citing Section 7 of the Civil Procedure Act hammered home the importance of res-judicata principle which he supported through the Court of Appeal in John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & Others [2015] KECA 472 KLR where it was held that the principle of res judicata is not a mere technicality but a principle that goes to the root of the suit and upholds the public interest that there should be an end to litigation and also, it serves the aim of ensuring that a party is protected from repetitive litigation on the same subject matter.
31. It was submitted that res judicata is available in two principal ways: cause of action res judicata and issue-based res judicata.
32. Counsel highlighted the prayers that were sought in previous matter, Petition E065 of 2024 and maintained that these prayers are principally similar to what the instant Petition is also seeking. He submitted that in the previous case, its prayers were pegged allegation encapsulated in paragraph 4 of the Court decision in PET 065 of 2024 that stated thus:
‘the privatisation of the sugar companies through long term leases was being done without public participation in violation of the Constitution’
33. Counsel argued that the Court addressed the issue at paragraph 37 of the Judgment in Petition E065 of 2024 and arriving at the conclusion contained in paragraph 44 where the Court held:
“In this respect, the Respondent demonstrated through documentary evidence that there was stakeholders’ engagement and the National Assembly approved leasing of the sugar companies”
34. Counsel contended on behalf of the 1st Interested Party that even the prayers in the instant Petition, particularly prayers 1, 2, 3, 4 and 5 are analogous to prayers a, b, c, f & g in the former suit, Petition E065 of 2024 with only some minor differences in the tender number but the subject matter is the same.
35. That even the parties, other than the Petitioner are also the same hence is an attempt to revive an already concluded matter disguised as public interest litigation yet the matter was concluded on merits vide Petition E065 of 2024 and the interest of the Petitioner as a member of public is deemed to have been represented in that suit which was also initiated in public interest.
3rd and 4th Interested Parties Submissions in support of their Preliminary Objection dated 14/5/2025
36. Wekesa and Simiyu Advocates filed written submissions dated 14/5/2025 in support of the 3rd and 4th Interested Parties' preliminary objection dated 14th May, 2025.
37. The 3rd and 4th Interested Party submitted that the main ground upon which the Petitioner seeks to nullify the tender for leasing Nzoia Sugar Company is the allegation there was no public participation and/or meaningful public participation but this issue is res-judicata having been the subject of three previous Constitutional Petitions and Judicial Review where these issues were determined with finality by the High Court and no appeal was lodged to the Court of Appeal. These cases are: Nzuki Musyoki vs. Agriculture and Food Authority and Attorney General Petition No. E262 of 2020 Nairobi [2002] КЕНС 525 (KLR); Martin Nyongesa Barasa vs. The Cabinet Secretary Ministry of Treasury and Economic Planning and Others, Petition No. E065 of 2024 Nairobi [2025] eKLR and Republic v Cabinet Secretary, Ministry of Agriculture Livestock & Fisheries; Otieno (Exparte Applicant); Agriculture & Food Authority (Interested Party) (Judicial Review Miscellaneous Application 11 of 2020) [2023] KЕНC 2359 (KLR) (16 March 2023) (Judgment).
38. The 3rd and 4th Interested Parties argued that Petition No. E065 of 2024 at Milimani, (supra) dealt with the issue of the alleged lack of public participation in the leasing process of Nzoia Sugar Company Limited (which is also at the core of this petition) and Justice Mwita found that "the Respondents demonstrated through documentary evidence that there was stakeholders' engagement and the National Assembly approved leasing of the sugar companies, " and dismissed the Petition.
39. As such, it was argued that under the issue-based estoppel, the Petitioner herein is precluded from raising the same issues that had been litigated and determined by this Court in three other cases which issues are now res judicata.
40. He relied on a three-judge bench decision of Matindi & 3 others v The National Assembly of Kenya & 4 others; [2023] KЕНС 19534 (KLR) the Judges held:
"We do not think that a court ought to re litigate the same issues over and over, each time a new party files a petition relating to the same subject matter. To do so would lead to an absurd outcome and embarrass the court with contradicting decisions."
41. It was thus submitted that the issue of public participation in the leasing of Nzoia Sugar Company Limited having been previously litigated and determined in three previous petitions/application E262 of 2020, E065 of 2024 and JR No 11 of 2020, cannot be re-litigated in the present petition hence the same should be struck out.
42. Further, the contention that because the Petition raises Constitutional issues, they are incapable of being addressed by Public Administrative Review Board was matter that was raised and deflated by the Judgement of Justice Ongudi in Petition No. 262 of 2020 of 3rd May 2022.
43. On exhaustion of local remedies, Counsel submitted that the subject matter of the petition is the Tender No. MOALD/SDA/IT/001/2024-2025 as amended which deals with leasing of Nzoia Sugar Company Limited, a procurement process initiated under the Public Procurement and Asset Disposal Act, 2015 (the PPADA 2015) of which the Public Procurement Administrative Review Board has the power to review, hear and determine tendering and asset disposal disputes.
44. Counsel further cited the Supreme Court case of the Communications Commission of Kenya and others vs. Royal Media Services LTD & Others [2014] eKLR where it was held that where legislation has been enacted to give effect to a constitutional right, it is not permissible for a litigant to found a cause of action directly on the Constitution without challenging the legislation in question, in this case, the Public Procurement and Assets Disposal Act.
45. It was the 3rd and 4th Interested Party’s submission that the Petitioner, if aggrieved with the present International Tender for Leasing Nzoia Sugar Company Limited the subject of this Petition, should have approached the Public Procurement Administrative Review Board under the Public Procurement and Asset Disposal Act, 2015 and not this Court as enunciated as was held by the Supreme Court in Albert Chaurembo Mumbo & 7 others v Maurice Munyao & 148 others [2019] eKLR as also done by this Court in similar suits filed over the same subject matter of leasing of Nzoia Sugar Company Limited in Nzuki Musyoki vs. Agriculture and Food Authority and Attorney General [supra] and Republic v Cabinet Secretary, Ministry of Agriculture Livestock & Fisheries; Otieno (Exparte Applicant); Agriculture & Food Authority (Interested Party) (supra) on the basis that the Court did not have jurisdiction as the Applicant ought to have approached the Public Procurement Administrative Review Board and, that further, public participation had been carried out.
Petitioner’s written Submissions in Opposition to the 3rd and 4th interested parties’ preliminary objection dated 14th may 2025
46. In opposition to the 3rd and 4th Interested Parties’ Preliminary Objection dated 14th May 2025, the Petitioner filed written dated 16/5/2025 through Wamalwa & Echesa Company Advocates.
47. It was argued on behalf of the Petitioner that the Petition challenges the constitutionality of the Respondents’ decision to lease Nzoia Sugar Company through a public tender process without adequate public participation.
48. The Petitioner began by restating the brief facts upon which the Petition is founded.
49. He explained that on or about 28th February, 2025, the 3rd Respondent’s Ministry posted an invitation to tender on their website, to wit, ‘International Tender Notice, No. MOALD/SDA/IT/ 001/2024-2025’ for prospective tenderers to bid for the leasing of the public sector owned/controlled sugar company.
50. According to the Petitioner this was done abruptly without any consultation with the members of the public or any meaningful and adequate public participation be carried out hence was a contravention of Articles 10, 201, and 227 of the Constitution of Kenya f
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