1. The petition that comes up for determination is dated the 18th September 2023 wherein The petitioner seeks the following reliefs:
a. A declaration that within the intendment of Article 10, of the Constitution the nature of award of the tender process by the 1st, 2nd and 3rd Respondent violated constitution of Kenya 2010.
b. A declaration that the failure to follow the laid down procedure for the carrying out of a Public tendering process under procurement and asset disposal act, makes the tendering process inconsistent with the provisions of Articles 10, 35(1), 47, 73 and 232 of the Constitution, and is therefore, illegal, null and void.
c. Permanent injunction restraining the Respondents, their agents or persons acting under their authority and command, from entering into any concessions or contracting any party for the provision of services in the tender for labor and transport contractors for the year 2023-2025; rfx no. 1000000903 without complying with the provisions of Articles 10, 35(1), 47, 73,227, and 232 of the Constitution, the energy Act no.1 of 2019, and the Public Procurement & Asset Disposal Act 2015.
d. An order be issued to compel the respondents to comply with the provisions of section 2,122 (a) and 142 (2) of the energy Act and section 4,5(a-d) of the electrical power (electrical installation work) rules, 2006 all applicable laws in their decision to enter contractual agreement for the above cited tender.
e. A declaration that the actions of the 1st ,2nd and 3rdRespondents in colluding to qualify tenderers under Wrong classes and awarding the said tenderers a contract letter expressly violate the provisions of Article 43 of the Constitution which guarantees the tenderers right to enjoy the economic and social rights enumerated therein.
f. A declaration that the actions of the 1st and 2ndrespondent Respondent in procuring unqualified tenderers amount to providing substandard services to Kenyan citizen through inefficient and lack of capacity hence by endangering their health and lives of Kenyan through unreasonable substandard services violates the provisions of Article 46 of the Constitution which guarantees the rights of consumers.
g. An order directing the Respondents to prepare and publish detailed reports capturing all the tender process undertaken operations since they were advertised.
h. An advisory opinion to be issued to the 1st ,2nd and 3rd Respondents to adopt administrative, policy, legal and regulatory mechanism that will allow the proper and transparent procurement of the herein cited tender flouted by the 2nd respondent.
i)There be an order as to costs.
2. The Petition is supported by the affidavit of the petitioner and the bundle of documents marked as (exhibit YB-01, YB-02, YB-03 and YB-04) being as follows.
a. REREC- RFX NO. 1000000903, tender for labour & transport Contractors-February, 2023.
b. List of qualified tenderers for RFX NO. 1000000903, tender for labour & transport Contractors-February, 2023.
c. List of disqualified tenderers for RFX NO. 1000000903, tender for labour & transport Contractors-February, 2023.
d. List of prequalified REREC contractors for tender and their licensing category as against the voltage.
The Petitioner’s case:
3. Under Article 3(1) of the Constitution of Kenya, the petitioners have an obligation to respect, uphold and defend the Constitution.
4. Under Article 22(2) of the Constitution of Kenya, the petitioners may institute court proceedings in the public interest to thwart threats to the rights and fundamental freedoms in the Bill of Rights.
5. Under Article 258(2) of the Constitution of Kenya the petitioners may institute court proceedings in the public interest to thwart threats to the Constitution.
6. Article 165(3) of the constitution confers the high court with very wide jurisdiction to deal with any matter that falls within its jurisdiction, that jurisdiction is not exhaustive given that Article 165(3) (e) states that the court can have any other jurisdiction, original or appellate, conferred on it by legislation.
7. That in terms of Article 165(3) (d) (ii), the court has jurisdiction to determine the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, the constitution.
8. Article 23(1) also states that the court has jurisdiction to hear and determine applications for redress of denial, violation or infringement of or threat to a right or fundamental freedom in the Bill of Rights. This jurisdiction is to be exercised in accordance with Article 165 of the Constitution.
9. Article 23(3) of the constitution undoubtedly confirms the extent of the width of the jurisdiction of this court to grant appropriate relief.
10. Under Article 165 (3)(d)(1)&(ii) of the Constitution of Kenya, the High Court has jurisdiction to hear any questions respecting the interpretation of the Constitution, including the determination of questions involving declaration of constitutionality of an Act of Parliament and whether any law is inconsistent with or in contravention of the Constitution, and whether anything said to be done under the authority of the Constitution or of any law is inconsistent with, or in contravention of, or a threat to the Constitution.
11. The respondent advertised and invited interested bidder/tenderers for provision of labour and transport contractors under reference number RFX NO. 1000000903 as Tender for labour & transport contractors, February, 2023, and the tender closing date was 29.03.2023. at 10.00am for financial year, 2023-2025.
12. The said advert was cited as Rural electrification and renewable energy corporation as; tender for labor and transport contractors for the year 2023-2025; rfx no. 1000000903.
13. The said invitation provided a checklist on the basic requirement before one could be allowed to render his/her tender as interested tenderer.
14. That under the Checklist page item 7, it provided that one must have National Construction Authority (NCA) registration Certificate and a valid Tenderer’s Practicing License for the electrical category, and valid EPRA Electrical certificate for the participating firm, among many requirements on the said checklist.
15. The tendering period ran for one month i.e. 30 days from February to 29th March 2023 and the same was closed for evaluation and award of qualified tenderers.
16. The list of qualified, unqualified and disqualified tenderers was published on the 1st respondent website where the public can have an access.
17. The qualified firms are to be awarded with Award of Contract as successful Tenderer, this are the Tenderer whose Tender has been determined to be the Lowest Evaluated Tender that which the Tender of the Tenderer met the qualification criteria and whose Tender was determined to be: a) Substantially responsive to the Tendering Document; and b) The lowest evaluated cost.
18. The 2nd respondent upon award of contract proceeds to issue Notice of Intention to enter into a Contract.
19. The 1st and 2nd Respondents by colluded to Award tender to unqualified firms in possession of Class C-1, Class C-2, instead of those in possession of Class A-1, Class A-2, in contravention of the Energy Act No. 1 of 2019, the electric power (electrical installation work) rules, 2006 and in contravention of Article 10 of the Constitution which sets out the national values and principles of governance.
20. The Respondents by unjustifiably awarding tenders to Class C-1, Class C-2, where only Class A-1, Class A-2 are applicable disadvantages suppliers from Class A-1, Class A-2 are in violation of the non- discrimination principle under Article 27 of the Constitution.
The 1st and 2nd Respondent by awarding the tender to unqualified person and discriminating the qualified firms amounts to inefficient tendering process and awarding the wrong class to the wrong voltage parameters aggregate to poor quality services anticipated hence violated the Kenyans rights as consumers under Article 46 of the Constitution.
21. The Respondents have not published reasons for refusal/disqualification on the rejected bids/tenders hence refusal to render administrative action on the irregular award of the tender in a manner that is expeditious, efficient, lawful, reasonable and procedurally fair as required by Article 47(1) of the Constitution.
22. .The proposed handover of the Notice of Intention to enter into a Contract is in breach of Article 28, 35, 41, 47, 73, and 232 of the Constitution and if this application is not heard on priority basis, it is likely that the Notice of Intention to enter into a Contract will take place thus leading to a further violation of the rights of Kenyans.
The entire tendering process is in breach of the provisions of the Public Procurement & Asset Disposal Act 2015 and is unlawful by virtue of Article 47 of the Constitution.
23. The entire tendering process is in breach of the provisions of the Public Procurement & Asset Disposal Act 2015 and is unlawful by virtue of Article 47 of the Constitution.
24. According to him there is a real, live and serious threat to human life and economic sabotage if the tendering process is allowed to proceed as the awarded tenderers do not qualify to provide the services as advertised.
25. The Respondents have refused to properly conduct themselves in a manner that respects due process, rule of law, transparency and accountability.
26. That if the 1st and 2nd Respondent tendering process and decision herein is not quashed, the constitutional rights accorded to the Petitioner as well as the stakeholders working and carrying out business in energy sector and the public will continue to be violated and thus rendering the Petition and the application moot.
27. To the extent that the Respondents colluded to Award tender to unqualified firms in possession of Class C-1, Class C-2, instead of those in possession of Class A-1, Class A-2, in contravention of the Energy Act No. 1 of 2019, the electric power (electrical installation work) rules,2006, in violation of the provisions of Article 10 of the Constitution
of Kenya which sets out the national values and principles of governance, particularly enjoining the Respondents to observe good governance, integrity, rule of law, non-discrimination, protection of the marginalized, transparency, accountability and sustainable development .
28. To the extent that the Respondents have unjustifiably awarded tenders to Class C-1, Class C-2, where only Class A-1, Class A-2 are applicable disadvantaging tenderers/suppliers from Class A-1, Class A-2, the Respondents are in violation of Article 27(1) of the Constitution which provides that every person is equal before the law and has the right to equal protection and equal benefit of the law and Article 27(2) of the Constitution which provides that equality includes the full and equal enjoyment of all rights and fundamental freedoms.
29. The Respondents by denying tenderers a fair process in tendering to enable them maintain a respectable quality of living have infringed the tenderers’ right to human dignity enshrined at Article 28 of the Constitution which provides that every person has inherent dignity and the right to have that dignity respected and protected.
30. The Respondents by colluding to unfair process and in the tendering process enumerated herein infringes the tenderers right to enjoy the economic and social rights enumerated by Article 43 of the Constitution.
31. The Respondents by disregarding, the provision of the energy act, through inefficient tendering process and awarding contracts to unqualified tenderers hence endangering Kenyan lives in total have violated the Kenyans and the tenderers rights as consumers under Article 46 of the Constitution.
32. The Respondents have failed to provide written reason/s for their refusal to qualify other tenderers required by Article 47(2) of the Constitution.
33. The Petitioner invited the court to consider the following issues:
1) Whether by colluding to Award tender to unqualified firms in possession of Class C-1, Class C-2, instead of those in possession of Class A-1, Class A-2, in contravention of the Energy Act No. 1 of 2019, the electric power (electrical installation work) rules, 2006, respondents are in violation of the provisions of Article 10 of the Constitution of Kenya.
2) Whether by unjustifiably awarding tenders to Class C-1, Class C-2, where only Class A-1, Class A-2 are applicable disadvantaging tenderers/suppliers from Class A-1, Class A-2, the Respondents are in violation of Article 27(1) of the Constitution the Respondents are in violation of Article 27 of the Constitution.
3) Whether by denying tenderers a fair process in tendering to enable them maintain a respectable quality of living have infringed the tenderers’ right to human dignity enshrined at Article 28 of the Constitution.
4) Whether by awarding the tenders to unqualified tenderer locking out qualified tenderers infringes right to enjoy the economic and social rights enumerated by Article 43 of the Constitution.
5) Whether by disregarding, the provision of the energy act, no. of 2019, The Public Procurementand Asset Disposal Act, 2015, through inefficient tendering process and awarding contracts to unqualified tenderers hence endangering Kenyan lives in total have violated the Kenyans and the tenderers rights as consumers under Article 46 of the Constitution.
6) Whether by refusing to render administrative action on issues tender process in a manner that is expeditious, efficient, lawful, and reasonable and procedurally fair the Respondents are in violation of Article 47(1) of the Constitution.
34. The Petition is supported by the petitioners’ supporting Affidavit wherein he argues as follows;that The respondent advertised and invited interested bidder/tenderers for provision of labour and transport contractors under reference number RFX NO. 1000000903 as Tender for labour & transport contractors, February, 2023, and the tender closing date was 29.03.2023. for financial year, 2023-2025.
35. The said invitation provided a checklist on the basic requirement before one could be allowed to render his/her tender as interested tenderer.
36. Under the Checklist page 32 item 7, it provided that one must have National Construction Authority (NCA) registration Certificate and a valid Tenderer’s Practicing License for the electrical category, and valid EPRA Electrical certificate for the participating firm, among many requirements on the said checklist.
37. The tendering period ran from February to 29th March, 2023 and the same was closed for evaluation and award of qualified tenderers.
38. The list of qualified, unqualified and disqualified tenderers was published on the 1st respondent website where the public can have an access.
39. The Petitioner argues that the qualified firms are to be awarded with Award of Contract as successful Tenderer, this are the Tenderer whose Tender has been determined to be the Lowest Evaluated Tender that which the Tender of the Tenderer met the qualification criteria and whose Tender was determined to be: a) Substantially responsive to the Tendering Document; and b) The lowest evaluated cost.
40. In the procurement journey,The 2nd respondent upon award of contract proceeds to issue Notice of Intention to enter into a Contract.
41. The Petitioner argues that the 1st and 2nd Respondents by colluding to Award tender to unqualified firms in possession of Class C-1, Class C-2, instead of those in possession of Class A-1, Class A-2, in contravention of the Energy Act No. 1 of 2019, the electric power (electrical installation work) rules, 2006 and in contravention of Article 10 of the Constitution which sets out the national values and principles of governance.
42. He argues that The Respondents by unjustifiably awarding tenders to Class C-1, Class C-2, where only Class A-1, Class A-2 are applicable disadvantages suppliers from Class A-1, Class A-2 are in violation of the non- discrimination principle under Article 27 of the Constitution.
43. The 1st and 2nd Respondent by awarding the tender to unqualified firms and discriminating the qualified firms amounts to inefficient tendering process and awarding the wrong class to the wrong voltage parameters aggregate to poor quality services anticipated hence violated the Kenyans rights as consumers under Article 46 of the Constitution.
44. He argues that the Respondents have not published reasons for refusal/disqualification on the rejected bids/tenders hence refusal to render administrative action on the irregular award of the tender in a manner that is expeditious, efficient, lawful, reasonable and procedurally fair as required by Article 47(1) of the Constitution.
45. The Respondents are in contravention of the provisions of Article 73(1) of the Constitution of Kenya which enjoins the Respondents to exercise public authority as a public trust in a manner that is consistent with the purposes and objects of the Constitution.
46. He argues that The Respondents are driven by improper motive contrary to the requirements of Article 73(2) of the Constitution.The award of the tenders lacks any legal justification under the new regime governing the entire energy sector, the energy Act,2019.
47. The Tender Committee upon considering the submissions, findings and the recommendations of the Technical Evaluation Committee maliciously and in an unfair manner overstepped its mandate as expressed under rule 11 of the Regulations and proceeded to illegally and unlawfully disqualify other bidders from the tender process without any solid ground.
48. The decision of the 1st and 2nd respondent to disqualify other tenderers and award the unmerited tenderers is unreasonable, based on extraneous, irrelevant and unlawful considerations, arbitrary, ultra vires and in excess of jurisdiction conferred on it by law.
49. The values and principles of guidance enumerated under Article 10 of the Constitution are binding on the Respondents.
50. Article 10 of the Constitution requires that public procurement laws and principles, to be enforced in manner that adheres to principle of sustainable development.
51. Article 27 of the Constitution forbids the Respondents from discriminating against any Kenyan or group of Kenyans irrespective of their socio-economic status.
52. Article 28 of the Constitution enjoins the Respondents to respect and protect the human dignity of the tenderers.
The Petitioner did not file submissions.
The 2nd Respondent's case;
53. The 2nd Respondent is a State Corporation established under section 43 of the Energy Act, No. 1 of 2019.
54. It is its case that The procurement of additional labor and transport contractors was conducted through Open Tender as was advertised in MyGov pull-out of 14th February 2023.
55. The deadline for submission of tenders was 12th April 2023 which was sufficient period as per section 97(1) of the Public Procurement and Assets Disposal Act, 2015 and Regulation No. 86 of the Public Procurement and Assets Disposal Rules, 2020.
56. The tenders were opened on 12th April 2023 in the presence of the opening committee.
57. The 2nd Respondent runs an e-procurement system with inbuilt control to ensure integrity, transparency and accountability in the process.
58. The opening schedule was uploaded to the 2ndRespondents website indicating all the bidders who participated in the tender.
59. It is its case that the tender evaluation was conducted between 3rd May 2023 to 26th May 2023 in compliance with section 80 (6) of the Public Procurement and Assets Disposable Act, 2015.
60. T argues that there were four hundred and seventy nine bidders (479) and all bidders were evaluated.One hundred and ninety eight (198) bidders out of the four hundred and seventy nine (479) bidders passed the preliminary evaluation stage.
61. Further, out of the one hundred and ninety eight (198) bidders, one hundred and ninety two (192) passed the technical stage and proceeded to the financial stage.
62. One hundred and ninety (190) bidders passed the financial stage and were thereafter assigned various lots which they quoted for in their bid.
63. In response to paragraph 63 of the Petition, I wish to state that the Tender No. RFX 1000000903 has a detailed Evaluation Criteria.
64. Under the mandatory requirements, Clause 3.1.6 on page 36 of the Tender Document, the bidders were required to have a valid EPRA Electrical Certificate for the participating firm.
65. The allegations made by the Petitioner in paragraphs 63 and 64 are false and misleading to this Honourable Court as the Tender did not require the 2nd Respondent to award Class A-1 and A-2. The requirement under the Tender was that the bidder should have a valid EPRA Electrical Certificate.
66. All successful tenderers have met the evaluation and qualification criteria, including having the valid EPRA Electrical Certificate.
67. The 2ndRespondent received a letter from the Public Procurement Regulatory Authority on 20th December 2023 and stating as follows about the Tender No. RFX1000000903 For Labour and Transport Contractors;
i. "In view of the foregoing, the Authority is of the view that despite the gaps noted, the procurement process has so far been generally conducted as per the requirement of the law."
68. The Petitioner has no cause of action against the 2ndRespondent and his petition and the application for judicial review orders should be dismissed,
69. It argues that the procurement process herein was conducted in accordance with law and there was no breach of Procurement Law in anyway.
Analysis determination:
The issue for determination is whether the application has merit.
70. In determining whether the Applicants have proven their case, guided by the Supreme Court in Samson Gwer & 5 others v Kenya Medical Research Institute & 3 others (2020) KLR where it was held as follows:
71. “(49) Section 108 of the Evidence Actprovides that, “the burden of proof in a suit or procedure lies on that person who would fail if no evidence at all were given on either side;” and Section 109 of the Act declares that, “the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”
72. The Petitioner seeks an order directing the Respondents to prepare and publish detailed reports capturing all the tender process undertaken operations since they were advertised.
73. In the Speaker of National Assembly v Njenga Karume [2008] 1 KLR 425 the court had this to state;
“In our view there is considerable merit.....that where there is clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.”
74. In William Odhiambo Ramogi & 3 others v Attorney General & 6 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR wherein the court held that the exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the courts.
75. The doctrine of exhaustion is in keeping with Article 159 of The Constitution which seeks to promote alternative dispute resolution.
76. Section 9 (1) of the Act provides an avenue for a party aggrieved by an administrative action to without unreasonable delay, apply for judicial review of any administrative action to the High Court or to a subordinate court upon which original jurisdiction is conferred pursuant to Article 22(3) of the Constitution. This, is subject to exhausting all other available remedies.
77. Thus, Section (9) (2) provides in mandatory terms that;
“The High Court or a subordinate court under subsection (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.”
78. Under Section 9 (3) “The High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under sub-section (1).”
79. The Supreme Court of Kenya Petition 14, 14a, 14b, & 14c of 2014(consolidated) Communication of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] eKLR.
80. Borrowing from the Constitutional Court of South Africa in S V Mhlungu, 1995 (3) SA 867 (cc) and Supreme Court of US Ashwander v Tennessee Valley Authority 297 US. 288, 347, (1936) the court adopted the general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed. In essence, civil disputes should be determined in civil courts, criminal matters in criminal courts and a Court would not decide a constitutional question which was properly before it, if there are some other basis upon which the case could have been disposed of.
81. In Bethwell Allan Omondi Okal v Telkom (K) Ltd (Founder) & 9 others [2017] eKLR[1]
The Appellant might want to argue that he has a constitutional right of access to justice, and we agree that he does, but the High Court and this Court have pronounced themselves many times to the effect that a party must first exhaust the other processes availed by other statutory dispute resolution organs, which are by law
82. In Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others [2015][2]eKLR held that:
“It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be for a of last resort and not the first port of call the moment a storm brews…The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the courts…This accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution”.
83. The petitioner herein also seeks for a declaration that the failure to follow the laid down procedure for the carrying out of a Public tendering process under procurement and asset disposal act, makes the tendering process inconsistent with the provisions of Articles 10, 35(1), 47, 73 and 232 of the Constitution, and is therefore, illegal, null and void.
84. This court notes that the PPADA Act makes elaborate provisions that safeguard the integrity all public procurement procedures, proceedings and dispute resolution at many levels within Article 227 of the Constitution.
85. The Petitioner does not challenge the provisions of the PPADA Act.
86. Section 9 (h) of the PPADA Act The functions of the Authority shall be to investigate and act on complaints received on procurement and asset disposal proceedings from procuring entities, tenderers, contractors or the general public that are not subject of administrative review.
87. Other than this, there is an authority and the board that are specialized bodies that the were at the disposal the petitioner.
88. Had the Petitioner moved Section 9 (h) of the PPADA Act, he would have had his concerns attended to adequately before moving this Court. He did not attempt to seek redress all through the procurement process.
89. The Act creates a lot of redress avenues that were available to the Petitioner before moving this court. From the time the tenders were advertised to the time a contract is signed The petitioner would have sought for intervention.The prayer cannot be granted in the circumstances.
90. In so finding, this court is guided by the case of Republic v National Employment Authority & 3 others ex-parte Middle East Consultancy Services Limited [2018] eKLR, where Mativo, J. (as he then was) stated:
45.This brings into focus the principle of ripeness which prevents a party from approaching a Court prematurely at a time when he/she has not yet been subject to prejudice, or the real threat of prejudice, as a result of conduct alleged to be unlawful. None of the parties deemed it fit to address this pertinent legal point. The principle of ripeness was aptly captured by Kriegler J[34] in the following words:-“The essential flaw in the applicants' cases is one of timing or, as the Americans and, occasionally the Canadians call it, "ripeness"... Suffice it to say that the doctrine of ripeness serves the useful purpose of highlighting that the business of a court is generally retrospective; it deals with situations or problems that have already ripened or crystallised, and not with prospective or hypothetical ones. Although, as Professor Sharpe points out and our Constitution acknowledges, the criteria for hearing a constitutional case are more generous than for ordinary suits, even cases for relief on constitutional grounds are not decided in the air. ...The time of this Court is too valuable to be frittered away on hypothetical fears of corporate skeletons being discovered.”
i. 46.Lord Bridge of Harwich put it more succinctly when he stated:- “It has always been a fundamental feature of our judicial system that the Courts decide disputes between the parties before them; they do not pronounce on abstract questions of law when there is no dispute to be resolved.”[35]It is perfectly true that usually the Court does not solve hypothetical problems and abstract questions and declaratory actions cannot be brought unless the rights in question in such action have actually been infringed.[36
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a. A declaration that within the intendment of Article 10, of the Constitution the nature of award of the tender process by the 1st, 2nd and 3rd Respondent violated constitution of Kenya 2010.
b. A declaration that the failure to follow the laid down procedure for the carrying out of a Public tendering process under procurement and asset disposal act, makes the tendering process inconsistent with the provisions of Articles 10, 35(1), 47, 73 and 232 of the Constitution, and is therefore, illegal, null and void.
c. Permanent injunction restraining the Respondents, their agents or persons acting under their authority and command, from entering into any concessions or contracting any party for the provision of services in the tender for labor and transport contractors for the year 2023-2025; rfx no. 1000000903 without complying with the provisions of Articles 10, 35(1), 47, 73,227, and 232 of the Constitution, the energy Act no.1 of 2019, and the Public Procurement & Asset Disposal Act 2015.
d. An order be issued to compel the respondents to comply with the provisions of section 2,122 (a) and 142 (2) of the energy Act and section 4,5(a-d) of the electrical power (electrical installation work) rules, 2006 all applicable laws in their decision to enter contractual agreement for the above cited tender.
e. A declaration that the actions of the 1st ,2nd and 3rdRespondents in colluding to qualify tenderers under Wrong classes and awarding the said tenderers a contract letter expressly violate the provisions of Article 43 of the Constitution which guarantees the tenderers right to enjoy the economic and social rights enumerated therein.
f. A declaration that the actions of the 1st and 2ndrespondent Respondent in procuring unqualified tenderers amount to providing substandard services to Kenyan citizen through inefficient and lack of capacity hence by endangering their health and lives of Kenyan through unreasonable substandard services violates the provisions of Article 46 of the Constitution which guarantees the rights of consumers.
g. An order directing the Respondents to prepare and publish detailed reports capturing all the tender process undertaken operations since they were advertised.
h. An advisory opinion to be issued to the 1st ,2nd and 3rd Respondents to adopt administrative, policy, legal and regulatory mechanism that will allow the proper and transparent procurement of the herein cited tender flouted by the 2nd respondent.
i)There be an order as to costs.
2. The Petition is supported by the affidavit of the petitioner and the bundle of documents marked as (exhibit YB-01, YB-02, YB-03 and YB-04) being as follows.
a. REREC- RFX NO. 1000000903, tender for labour & transport Contractors-February, 2023.
b. List of qualified tenderers for RFX NO. 1000000903, tender for labour & transport Contractors-February, 2023.
c. List of disqualified tenderers for RFX NO. 1000000903, tender for labour & transport Contractors-February, 2023.
d. List of prequalified REREC contractors for tender and their licensing category as against the voltage.
The Petitioner’s case:
3. Under Article 3(1) of the Constitution of Kenya, the petitioners have an obligation to respect, uphold and defend the Constitution.
4. Under Article 22(2) of the Constitution of Kenya, the petitioners may institute court proceedings in the public interest to thwart threats to the rights and fundamental freedoms in the Bill of Rights.
5. Under Article 258(2) of the Constitution of Kenya the petitioners may institute court proceedings in the public interest to thwart threats to the Constitution.
6. Article 165(3) of the constitution confers the high court with very wide jurisdiction to deal with any matter that falls within its jurisdiction, that jurisdiction is not exhaustive given that Article 165(3) (e) states that the court can have any other jurisdiction, original or appellate, conferred on it by legislation.
7. That in terms of Article 165(3) (d) (ii), the court has jurisdiction to determine the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, the constitution.
8. Article 23(1) also states that the court has jurisdiction to hear and determine applications for redress of denial, violation or infringement of or threat to a right or fundamental freedom in the Bill of Rights. This jurisdiction is to be exercised in accordance with Article 165 of the Constitution.
9. Article 23(3) of the constitution undoubtedly confirms the extent of the width of the jurisdiction of this court to grant appropriate relief.
10. Under Article 165 (3)(d)(1)&(ii) of the Constitution of Kenya, the High Court has jurisdiction to hear any questions respecting the interpretation of the Constitution, including the determination of questions involving declaration of constitutionality of an Act of Parliament and whether any law is inconsistent with or in contravention of the Constitution, and whether anything said to be done under the authority of the Constitution or of any law is inconsistent with, or in contravention of, or a threat to the Constitution.
11. The respondent advertised and invited interested bidder/tenderers for provision of labour and transport contractors under reference number RFX NO. 1000000903 as Tender for labour & transport contractors, February, 2023, and the tender closing date was 29.03.2023. at 10.00am for financial year, 2023-2025.
12. The said advert was cited as Rural electrification and renewable energy corporation as; tender for labor and transport contractors for the year 2023-2025; rfx no. 1000000903.
13. The said invitation provided a checklist on the basic requirement before one could be allowed to render his/her tender as interested tenderer.
14. That under the Checklist page item 7, it provided that one must have National Construction Authority (NCA) registration Certificate and a valid Tenderer’s Practicing License for the electrical category, and valid EPRA Electrical certificate for the participating firm, among many requirements on the said checklist.
15. The tendering period ran for one month i.e. 30 days from February to 29th March 2023 and the same was closed for evaluation and award of qualified tenderers.
16. The list of qualified, unqualified and disqualified tenderers was published on the 1st respondent website where the public can have an access.
17. The qualified firms are to be awarded with Award of Contract as successful Tenderer, this are the Tenderer whose Tender has been determined to be the Lowest Evaluated Tender that which the Tender of the Tenderer met the qualification criteria and whose Tender was determined to be: a) Substantially responsive to the Tendering Document; and b) The lowest evaluated cost.
18. The 2nd respondent upon award of contract proceeds to issue Notice of Intention to enter into a Contract.
19. The 1st and 2nd Respondents by colluded to Award tender to unqualified firms in possession of Class C-1, Class C-2, instead of those in possession of Class A-1, Class A-2, in contravention of the Energy Act No. 1 of 2019, the electric power (electrical installation work) rules, 2006 and in contravention of Article 10 of the Constitution which sets out the national values and principles of governance.
20. The Respondents by unjustifiably awarding tenders to Class C-1, Class C-2, where only Class A-1, Class A-2 are applicable disadvantages suppliers from Class A-1, Class A-2 are in violation of the non- discrimination principle under Article 27 of the Constitution.
The 1st and 2nd Respondent by awarding the tender to unqualified person and discriminating the qualified firms amounts to inefficient tendering process and awarding the wrong class to the wrong voltage parameters aggregate to poor quality services anticipated hence violated the Kenyans rights as consumers under Article 46 of the Constitution.
21. The Respondents have not published reasons for refusal/disqualification on the rejected bids/tenders hence refusal to render administrative action on the irregular award of the tender in a manner that is expeditious, efficient, lawful, reasonable and procedurally fair as required by Article 47(1) of the Constitution.
22. .The proposed handover of the Notice of Intention to enter into a Contract is in breach of Article 28, 35, 41, 47, 73, and 232 of the Constitution and if this application is not heard on priority basis, it is likely that the Notice of Intention to enter into a Contract will take place thus leading to a further violation of the rights of Kenyans.
The entire tendering process is in breach of the provisions of the Public Procurement & Asset Disposal Act 2015 and is unlawful by virtue of Article 47 of the Constitution.
23. The entire tendering process is in breach of the provisions of the Public Procurement & Asset Disposal Act 2015 and is unlawful by virtue of Article 47 of the Constitution.
24. According to him there is a real, live and serious threat to human life and economic sabotage if the tendering process is allowed to proceed as the awarded tenderers do not qualify to provide the services as advertised.
25. The Respondents have refused to properly conduct themselves in a manner that respects due process, rule of law, transparency and accountability.
26. That if the 1st and 2nd Respondent tendering process and decision herein is not quashed, the constitutional rights accorded to the Petitioner as well as the stakeholders working and carrying out business in energy sector and the public will continue to be violated and thus rendering the Petition and the application moot.
27. To the extent that the Respondents colluded to Award tender to unqualified firms in possession of Class C-1, Class C-2, instead of those in possession of Class A-1, Class A-2, in contravention of the Energy Act No. 1 of 2019, the electric power (electrical installation work) rules,2006, in violation of the provisions of Article 10 of the Constitution
of Kenya which sets out the national values and principles of governance, particularly enjoining the Respondents to observe good governance, integrity, rule of law, non-discrimination, protection of the marginalized, transparency, accountability and sustainable development .
28. To the extent that the Respondents have unjustifiably awarded tenders to Class C-1, Class C-2, where only Class A-1, Class A-2 are applicable disadvantaging tenderers/suppliers from Class A-1, Class A-2, the Respondents are in violation of Article 27(1) of the Constitution which provides that every person is equal before the law and has the right to equal protection and equal benefit of the law and Article 27(2) of the Constitution which provides that equality includes the full and equal enjoyment of all rights and fundamental freedoms.
29. The Respondents by denying tenderers a fair process in tendering to enable them maintain a respectable quality of living have infringed the tenderers’ right to human dignity enshrined at Article 28 of the Constitution which provides that every person has inherent dignity and the right to have that dignity respected and protected.
30. The Respondents by colluding to unfair process and in the tendering process enumerated herein infringes the tenderers right to enjoy the economic and social rights enumerated by Article 43 of the Constitution.
31. The Respondents by disregarding, the provision of the energy act, through inefficient tendering process and awarding contracts to unqualified tenderers hence endangering Kenyan lives in total have violated the Kenyans and the tenderers rights as consumers under Article 46 of the Constitution.
32. The Respondents have failed to provide written reason/s for their refusal to qualify other tenderers required by Article 47(2) of the Constitution.
33. The Petitioner invited the court to consider the following issues:
1) Whether by colluding to Award tender to unqualified firms in possession of Class C-1, Class C-2, instead of those in possession of Class A-1, Class A-2, in contravention of the Energy Act No. 1 of 2019, the electric power (electrical installation work) rules, 2006, respondents are in violation of the provisions of Article 10 of the Constitution of Kenya.
2) Whether by unjustifiably awarding tenders to Class C-1, Class C-2, where only Class A-1, Class A-2 are applicable disadvantaging tenderers/suppliers from Class A-1, Class A-2, the Respondents are in violation of Article 27(1) of the Constitution the Respondents are in violation of Article 27 of the Constitution.
3) Whether by denying tenderers a fair process in tendering to enable them maintain a respectable quality of living have infringed the tenderers’ right to human dignity enshrined at Article 28 of the Constitution.
4) Whether by awarding the tenders to unqualified tenderer locking out qualified tenderers infringes right to enjoy the economic and social rights enumerated by Article 43 of the Constitution.
5) Whether by disregarding, the provision of the energy act, no. of 2019, The Public Procurementand Asset Disposal Act, 2015, through inefficient tendering process and awarding contracts to unqualified tenderers hence endangering Kenyan lives in total have violated the Kenyans and the tenderers rights as consumers under Article 46 of the Constitution.
6) Whether by refusing to render administrative action on issues tender process in a manner that is expeditious, efficient, lawful, and reasonable and procedurally fair the Respondents are in violation of Article 47(1) of the Constitution.
34. The Petition is supported by the petitioners’ supporting Affidavit wherein he argues as follows;that The respondent advertised and invited interested bidder/tenderers for provision of labour and transport contractors under reference number RFX NO. 1000000903 as Tender for labour & transport contractors, February, 2023, and the tender closing date was 29.03.2023. for financial year, 2023-2025.
35. The said invitation provided a checklist on the basic requirement before one could be allowed to render his/her tender as interested tenderer.
36. Under the Checklist page 32 item 7, it provided that one must have National Construction Authority (NCA) registration Certificate and a valid Tenderer’s Practicing License for the electrical category, and valid EPRA Electrical certificate for the participating firm, among many requirements on the said checklist.
37. The tendering period ran from February to 29th March, 2023 and the same was closed for evaluation and award of qualified tenderers.
38. The list of qualified, unqualified and disqualified tenderers was published on the 1st respondent website where the public can have an access.
39. The Petitioner argues that the qualified firms are to be awarded with Award of Contract as successful Tenderer, this are the Tenderer whose Tender has been determined to be the Lowest Evaluated Tender that which the Tender of the Tenderer met the qualification criteria and whose Tender was determined to be: a) Substantially responsive to the Tendering Document; and b) The lowest evaluated cost.
40. In the procurement journey,The 2nd respondent upon award of contract proceeds to issue Notice of Intention to enter into a Contract.
41. The Petitioner argues that the 1st and 2nd Respondents by colluding to Award tender to unqualified firms in possession of Class C-1, Class C-2, instead of those in possession of Class A-1, Class A-2, in contravention of the Energy Act No. 1 of 2019, the electric power (electrical installation work) rules, 2006 and in contravention of Article 10 of the Constitution which sets out the national values and principles of governance.
42. He argues that The Respondents by unjustifiably awarding tenders to Class C-1, Class C-2, where only Class A-1, Class A-2 are applicable disadvantages suppliers from Class A-1, Class A-2 are in violation of the non- discrimination principle under Article 27 of the Constitution.
43. The 1st and 2nd Respondent by awarding the tender to unqualified firms and discriminating the qualified firms amounts to inefficient tendering process and awarding the wrong class to the wrong voltage parameters aggregate to poor quality services anticipated hence violated the Kenyans rights as consumers under Article 46 of the Constitution.
44. He argues that the Respondents have not published reasons for refusal/disqualification on the rejected bids/tenders hence refusal to render administrative action on the irregular award of the tender in a manner that is expeditious, efficient, lawful, reasonable and procedurally fair as required by Article 47(1) of the Constitution.
45. The Respondents are in contravention of the provisions of Article 73(1) of the Constitution of Kenya which enjoins the Respondents to exercise public authority as a public trust in a manner that is consistent with the purposes and objects of the Constitution.
46. He argues that The Respondents are driven by improper motive contrary to the requirements of Article 73(2) of the Constitution.The award of the tenders lacks any legal justification under the new regime governing the entire energy sector, the energy Act,2019.
47. The Tender Committee upon considering the submissions, findings and the recommendations of the Technical Evaluation Committee maliciously and in an unfair manner overstepped its mandate as expressed under rule 11 of the Regulations and proceeded to illegally and unlawfully disqualify other bidders from the tender process without any solid ground.
48. The decision of the 1st and 2nd respondent to disqualify other tenderers and award the unmerited tenderers is unreasonable, based on extraneous, irrelevant and unlawful considerations, arbitrary, ultra vires and in excess of jurisdiction conferred on it by law.
49. The values and principles of guidance enumerated under Article 10 of the Constitution are binding on the Respondents.
50. Article 10 of the Constitution requires that public procurement laws and principles, to be enforced in manner that adheres to principle of sustainable development.
51. Article 27 of the Constitution forbids the Respondents from discriminating against any Kenyan or group of Kenyans irrespective of their socio-economic status.
52. Article 28 of the Constitution enjoins the Respondents to respect and protect the human dignity of the tenderers.
The Petitioner did not file submissions.
The 2nd Respondent's case;
53. The 2nd Respondent is a State Corporation established under section 43 of the Energy Act, No. 1 of 2019.
54. It is its case that The procurement of additional labor and transport contractors was conducted through Open Tender as was advertised in MyGov pull-out of 14th February 2023.
55. The deadline for submission of tenders was 12th April 2023 which was sufficient period as per section 97(1) of the Public Procurement and Assets Disposal Act, 2015 and Regulation No. 86 of the Public Procurement and Assets Disposal Rules, 2020.
56. The tenders were opened on 12th April 2023 in the presence of the opening committee.
57. The 2nd Respondent runs an e-procurement system with inbuilt control to ensure integrity, transparency and accountability in the process.
58. The opening schedule was uploaded to the 2ndRespondents website indicating all the bidders who participated in the tender.
59. It is its case that the tender evaluation was conducted between 3rd May 2023 to 26th May 2023 in compliance with section 80 (6) of the Public Procurement and Assets Disposable Act, 2015.
60. T argues that there were four hundred and seventy nine bidders (479) and all bidders were evaluated.One hundred and ninety eight (198) bidders out of the four hundred and seventy nine (479) bidders passed the preliminary evaluation stage.
61. Further, out of the one hundred and ninety eight (198) bidders, one hundred and ninety two (192) passed the technical stage and proceeded to the financial stage.
62. One hundred and ninety (190) bidders passed the financial stage and were thereafter assigned various lots which they quoted for in their bid.
63. In response to paragraph 63 of the Petition, I wish to state that the Tender No. RFX 1000000903 has a detailed Evaluation Criteria.
64. Under the mandatory requirements, Clause 3.1.6 on page 36 of the Tender Document, the bidders were required to have a valid EPRA Electrical Certificate for the participating firm.
65. The allegations made by the Petitioner in paragraphs 63 and 64 are false and misleading to this Honourable Court as the Tender did not require the 2nd Respondent to award Class A-1 and A-2. The requirement under the Tender was that the bidder should have a valid EPRA Electrical Certificate.
66. All successful tenderers have met the evaluation and qualification criteria, including having the valid EPRA Electrical Certificate.
67. The 2ndRespondent received a letter from the Public Procurement Regulatory Authority on 20th December 2023 and stating as follows about the Tender No. RFX1000000903 For Labour and Transport Contractors;
i. "In view of the foregoing, the Authority is of the view that despite the gaps noted, the procurement process has so far been generally conducted as per the requirement of the law."
68. The Petitioner has no cause of action against the 2ndRespondent and his petition and the application for judicial review orders should be dismissed,
69. It argues that the procurement process herein was conducted in accordance with law and there was no breach of Procurement Law in anyway.
Analysis determination:
The issue for determination is whether the application has merit.
70. In determining whether the Applicants have proven their case, guided by the Supreme Court in Samson Gwer & 5 others v Kenya Medical Research Institute & 3 others (2020) KLR where it was held as follows:
71. “(49) Section 108 of the Evidence Actprovides that, “the burden of proof in a suit or procedure lies on that person who would fail if no evidence at all were given on either side;” and Section 109 of the Act declares that, “the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”
72. The Petitioner seeks an order directing the Respondents to prepare and publish detailed reports capturing all the tender process undertaken operations since they were advertised.
73. In the Speaker of National Assembly v Njenga Karume [2008] 1 KLR 425 the court had this to state;
“In our view there is considerable merit.....that where there is clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.”
74. In William Odhiambo Ramogi & 3 others v Attorney General & 6 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR wherein the court held that the exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the courts.
75. The doctrine of exhaustion is in keeping with Article 159 of The Constitution which seeks to promote alternative dispute resolution.
76. Section 9 (1) of the Act provides an avenue for a party aggrieved by an administrative action to without unreasonable delay, apply for judicial review of any administrative action to the High Court or to a subordinate court upon which original jurisdiction is conferred pursuant to Article 22(3) of the Constitution. This, is subject to exhausting all other available remedies.
77. Thus, Section (9) (2) provides in mandatory terms that;
“The High Court or a subordinate court under subsection (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.”
78. Under Section 9 (3) “The High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under sub-section (1).”
79. The Supreme Court of Kenya Petition 14, 14a, 14b, & 14c of 2014(consolidated) Communication of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] eKLR.
80. Borrowing from the Constitutional Court of South Africa in S V Mhlungu, 1995 (3) SA 867 (cc) and Supreme Court of US Ashwander v Tennessee Valley Authority 297 US. 288, 347, (1936) the court adopted the general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed. In essence, civil disputes should be determined in civil courts, criminal matters in criminal courts and a Court would not decide a constitutional question which was properly before it, if there are some other basis upon which the case could have been disposed of.
81. In Bethwell Allan Omondi Okal v Telkom (K) Ltd (Founder) & 9 others [2017] eKLR[1]
The Appellant might want to argue that he has a constitutional right of access to justice, and we agree that he does, but the High Court and this Court have pronounced themselves many times to the effect that a party must first exhaust the other processes availed by other statutory dispute resolution organs, which are by law
82. In Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others [2015][2]eKLR held that:
“It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be for a of last resort and not the first port of call the moment a storm brews…The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the courts…This accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution”.
83. The petitioner herein also seeks for a declaration that the failure to follow the laid down procedure for the carrying out of a Public tendering process under procurement and asset disposal act, makes the tendering process inconsistent with the provisions of Articles 10, 35(1), 47, 73 and 232 of the Constitution, and is therefore, illegal, null and void.
84. This court notes that the PPADA Act makes elaborate provisions that safeguard the integrity all public procurement procedures, proceedings and dispute resolution at many levels within Article 227 of the Constitution.
85. The Petitioner does not challenge the provisions of the PPADA Act.
86. Section 9 (h) of the PPADA Act The functions of the Authority shall be to investigate and act on complaints received on procurement and asset disposal proceedings from procuring entities, tenderers, contractors or the general public that are not subject of administrative review.
87. Other than this, there is an authority and the board that are specialized bodies that the were at the disposal the petitioner.
88. Had the Petitioner moved Section 9 (h) of the PPADA Act, he would have had his concerns attended to adequately before moving this Court. He did not attempt to seek redress all through the procurement process.
89. The Act creates a lot of redress avenues that were available to the Petitioner before moving this court. From the time the tenders were advertised to the time a contract is signed The petitioner would have sought for intervention.The prayer cannot be granted in the circumstances.
90. In so finding, this court is guided by the case of Republic v National Employment Authority & 3 others ex-parte Middle East Consultancy Services Limited [2018] eKLR, where Mativo, J. (as he then was) stated:
45.This brings into focus the principle of ripeness which prevents a party from approaching a Court prematurely at a time when he/she has not yet been subject to prejudice, or the real threat of prejudice, as a result of conduct alleged to be unlawful. None of the parties deemed it fit to address this pertinent legal point. The principle of ripeness was aptly captured by Kriegler J[34] in the following words:-“The essential flaw in the applicants' cases is one of timing or, as the Americans and, occasionally the Canadians call it, "ripeness"... Suffice it to say that the doctrine of ripeness serves the useful purpose of highlighting that the business of a court is generally retrospective; it deals with situations or problems that have already ripened or crystallised, and not with prospective or hypothetical ones. Although, as Professor Sharpe points out and our Constitution acknowledges, the criteria for hearing a constitutional case are more generous than for ordinary suits, even cases for relief on constitutional grounds are not decided in the air. ...The time of this Court is too valuable to be frittered away on hypothetical fears of corporate skeletons being discovered.”
i. 46.Lord Bridge of Harwich put it more succinctly when he stated:- “It has always been a fundamental feature of our judicial system that the Courts decide disputes between the parties before them; they do not pronounce on abstract questions of law when there is no dispute to be resolved.”[35]It is perfectly true that usually the Court does not solve hypothetical problems and abstract questions and declaratory actions cannot be brought unless the rights in question in such action have actually been infringed.[36
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