Republic & another v Kenya National Highway Authority; Public Private Partnerships Unit (Interested Party) [2022] KEHC 17172 (KLR)

Republic & another v Kenya National Highway Authority; Public Private Partnerships Unit (Interested Party) (Judicial Review 3 of 2021) [2022] KEHC 17172 (KLR) (1 September 2022) (Ruling)

Neutral citation: [2022] KEHC 17172 (KLR)

Republic of Kenya

In the High Court at Malindi

Judicial Review 3 of 2021

SM Githinji, J

September 1, 2022

Between

Republic

Applicant

and

Lamu Isiolo Road Consortium Limited

Exparte

and

Kenya National Highway Authority

Respondent

and

The Public Private Partnerships Unit

Interested Party

Ruling

1. Before Court for determination is the Respondent’s Notice of Preliminary Objection dated 26th August, 2021 premised on the following grounds: 1. The court does not have the jurisdiction to take cognizance of, hear and deal with the judicial review application herein and or grant the orders sought in light of Section 67[5] of the Public Private Partnerships Act, 2013.

2. Certiorari to quash the Respondent’s decision contained in a letter dated 2nd December 2020 is time barred.

3. The Honourable Court has no power to issue adverse orders against the petition committee which is not a party in the judicial review application.

4. The purported judicial review application as filed herein is a disguised appeal against the decision of the petition committee.

5. The application as filed is not compliant with the mandatory provisions of the Fair Administrative Actions Act, 2015.

6. There is no decision of the Respondent before the Honourable Court to ground the judicial review proceedings herein.

7. The application is fatally flawed, misconceived and an abuse of the court process.

2. The Notice of Preliminary Objection was canvassed by way of written submissions.

The Respondent’s Submissions 3. The Respondent laid out the factual background that prompted the filing of the present preliminary objection. They framed three issues for determination as follows:

a) Whether the decision of the Respondent dated 2nd December 2020 is still available for quashing by way of judicial review. 4. The Respondents submitted that by virtue of section 7 of the Fair Administrative Act, 2015, the ex-parte applicant was precluded from making the present judicial review application having first opted to review the Respondent’s impugned decision, before the Petition’s committee, a statutory body established under section 67 of the Public Private Partnerships Act, 2013.

5. The Respondent added that the only available approach to the ex-parte applicant before this court would have been an appeal or judicial review against the decision of the Petition Committee. To the Respondent, the decision of the Petition Committee had superseded the Respondent’s decision dated 2nd December 2020. Further, that any prayer for certiorari against the Respondent’s decision was statutory time barred having been made outside the required 6 months period under section 9[3] of the Law Reform Actand Order 53 rule 2 of the Civil Procedure Rules, 2010. They relied on the case of Jitesh Shah & Highland Textiles Limited v Nairobi District Lands Regisrar [2013] eKLR to expound on the essence of limitation statutes.

b) Whether the honourable court may lawfully issue an order quashing the decision of the Petition Committee, an entity that is not a party to this suit. 6. It was the Respondent’s submission that the adverse order against the Petition Committee was sought in violation of Articles 25[c], 47 and 50[1] of the Constitution of Kenya, 2010 and section 4[3] [a] and [b] of theFair Administrative Action Act, 2015. That the Petition Committee ought to have been properly sued herein in line with Order 1 Rule 9 of the Civil Procedure Rules, 2010. To the Respondent, the Committee is a necessary party as defined in the case of Amon v Raphael Tuck & Sons Limited [1956] 1 ALL ER 273 cited in the case ofPizza Harvest v Felix Midigo [2013] eKLR.

c) Whether the court has jurisdiction to hear and determine the judicial review application pursuant to section 67[5] of the Public Private Partnerships Act, 2013. 7. The Respondent argued that section 67[5] is clear that the decision of the Committee shall be final and binding. To the Respondent, the present proceedings are an appeal disguised as a judicial review application and should be dismissed. They relied on the cases of Kenya National Highways Authority v PPP Petition Committee & 2 others [2018] eKLR; Republic v Public Private Partnerships Petition Committee & 3 others ex-parte APM Terminals [2015]eKLR.

8. By virtue of the above provision, the Respondent argued that this court cannot grant the orders of mandamus and prohibition as sought.

The Interested Party’s Submissions 9. In support of the preliminary objection, the Interested Party submitted as follows:

a) Whether it is in the interest of justice to review the decision of the Petition Committee which is not a party to the subject judicial review application. 10. Relying on the case of Republic v Public Private Partnerships Petition Committee [the Petition Committee] & 3 others ex-parte APM Terminals [supra], the Interested Party submitted that the Petition Committee can and should have been a party to these judicial review proceedings in line with article 50 of the Constitution of Kenya and in the interest of justice.

b) Whether grounds of judicial review have to be demonstrated as against the Petition Committee by the applicant in seeking to impugn the decision of the Petition Committee. 11. They submitted that the Applicant’s failure to demonstrate the grounds for impugning the decision of the Petitions Committee is fatal. Such grounds, the Interested Party submitted, were outlined by Prof. PLO Lumumba and Hon. Peter Kaluma’s in the textbook titled Judicial Review in Kenya- Law and Procedure; as ultra vires rule, abuse of power, relevant/irrelevant considerations, reasonableness/unreasonableness, bad faith, procedural impropriety, error of law on the face of records, jurisdictional error, non-discrimination, legitimate expectation and natural justice. In line with this, they relied on the case of Republic v Kenya Power and Lighting Company Limited & another [2013] eKLR; and Republic v National Water Conservation & Pipeline Corporation & 11 others [2015] eKLR where the courts explained that the sins of a tribunal must be exhibited for judicial review remedies to be granted.

Ex-parte Applicant’s Submissions 12. The ex-parte Applicant opposed the preliminary objection. They equally identified three issues for determination as follows;

a) Whether this honourable court lacks jurisdiction to deal with the judicial review application in light of section 67[5] of the Public Private Partnerships Act, 2013. 13. It was the Ex-parte Applicant’s submission that Article 165[6] of the Constitution grants this Court supervisory jurisdiction over subordinate courts and other bodies exercising judicial or quasi- judicial functions, as such this court’s jurisdiction could not be ousted by section 67[5], which to the Applicants, was inconsistent with the Constitution hence invalid under article 2[1] and 2[4] of the Constitution of Kenya.

14. They added that the issue of and effect of statutory provisions which limit the right of a party to exhaust the right of appeal was discussed by the Supreme Court in Synergy Industrial Credit Limited v Cape Holdings Limited [2019] eKLR where the Court determined that a statutory provision could not take away the court’s residual jurisdiction. They also relied on the case of Jeanne W. Gacheche & 6 others v The Judges and Magistrates Vetting Board & 2 others [2012] eKLR; and Judges and Magistrates Vetting Board & 2 others v Centre for Human Rights & Democracy & 11 others [2014] eKLR.

b) Whether it was mandatory to include the Petitions Committee as a party to these proceedings. 15. It was the Ex-parte Applicant’s submission that the Public Private Partnerships Petitions Committee is not a body corporate seized with powers to sue or be sued in its name. Further, the Applicant argued that it did not seek any reliefs to be enforced by the Committee hence making the Committee an unnecessary party to these proceedings.

16. They added that in any event and by virtue of Order 1 Rule 9 of the Civil Procedure Rules, their application could not be defeated by reason of misjoinder and non-joinder of parties. They argued that this alleged defect could be cured by Order 1 Rule 10. To buttress this point, they relied on the case of Cyrus Kabira Njine & another v Esther Muthoni Ndambiri & 5 others [2020] eKLR.

c) Whether orders of certiorari being sought are time barred 17. It was the Ex-parte Applicant’s submission that the statutory 6 months limitation period will only start to run once a party has exhausted the appeal process. To them time started to run fron the date the Petitions Committee rendered its decision on 7th August 2021.

Analysis and Determination 18. Having considered the grounds raised in the notice of preliminary objection and submission by parties, I find that the following issues sprouts for determination:1. Whether the preliminary objection is on pure points of law.2. Whether section 67[5] of the Public Private Partnerships Act, 2013 ousts the jurisdiction of this Court.3. Whether failure to join the Public Private Partnerships Petition Committee as a Respondent herein is fatal to this suit.4. Whether the prayer for orders of certiorari is time barred.

19. The decision on Preliminary Objections by the Court of Appeal for East Africa in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd. [1969] EA 696, Law J.A. and Newbold P. (both with whom Duffus V-P agreed), respectively at 700 and 701, held as follows:Law, JA.:“So far as I am aware, a Preliminary Objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection on the jurisdiction of the court, or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”Newbold, P.:“A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of Preliminary Objection does nothing but unnecessarily increases costs and, on occasion, confuse the issues. This improper practice should stop.”

20. I will therefore proceed to determine the grounds raised in the preliminary objection vis a vis the threshold set out in the Mukisa Biscuits case [supra].Section 67 of the Public Private Partnership Regulations Act, 2013 stipulate as follows:1. There is established a committee to be known as the Petition Committee which shall consider all petitions and complaints submitted by a private party during the process of tendering and entering into a project agreement under this Act.2. The petition committee shall consist of-a)The chairperson who shall be a person qualified for appointment as a judge of the High Court of Kenya;b)Four other persons with such knowledge and experience as the Cabinet Secretary shall, in consultation with the unit, consider appropriate; andc)The unit director.3. The members of the Petition Committee shall hold office for a term of three years and shall be eligible for re- appointment for one further term.4. Where a petition is based on administrative decision of the Committee, the unit or the contracting authority, such petition for a review of the decision shall be made within fifteen days from the date of the decision in the prescribed form.5. . The decision of the Committee shall be final and binding on both parties.6. The Cabinet Secretary may by regulations, provide for the procedure for determining a petition under Subsection (1).

21. The Court in Republic v Public Private Partnerships Petition Committee (The Petition Committee) &3 others Ex Parte A P M Terminals [supra] guided by the reasoning of the Court of appeal in Kenya Pipeline Company Limited v Hyosung Ebara Company Limited & 2 Others [2012] eKLR explained the jurisdiction of this court in matters arising from the decision of the Petitions Committee. The Court explained:“Nevertheless, the decision of the Petition Committee needs close scrutiny for two reasons. Firstly, the Public Private Partnerships Act, 2013 does not provide an appeal mechanism against the decisions of the Petition Committee. If the Petition Committee reaches a wrong decision its repercussions on public procurement will be long lasting and devastating. An argument that an application like the one before this Court is a disguised appeal should be treated with a lot of caution for an aggrieved private party has no other option, apart from judicial review, of correcting bluntly wrong and unjust decisions. In a situation where there is no window for appeal, judicial review takes a higher pedestal.”

22. Further, section 9[1] of the Fair Administrative Action Act, 2015 as read with Section 2 of the same Act allows the Ex-parte Applicant to seek redress of this Court where it feels aggrieved by an administrative act. An administrative action and decision are defined under section 2 as follows:“administrative action" includes–(i)the powers, functions and duties exercised by authorities or quasi-judicial tribunals; or(ii)any act, omission or decision of any person, body or authority that affects the legal rights or interests of any person to whom such action relates;"decision" means any administrative or quasi-judicial decision made, proposed to be made, or required to be made, as the case may be;

23. The decisions by the Respondent and the Committee herein then fall within the ambit of an administrative action and decision as defined in the Fair Administrative Action Act, 2015. Section 9[1] provides as follows:“Subject to subsection (2), a person who is aggrieved by an administrative action may, 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.”

24. It is therefore clear that this court has jurisdiction for judicial review and that section 67[5] above does not oust the jurisdiction of this court to hear and determine the judicial review application. Ground Nos. 1 and 4 of the preliminary objection therefore fails.

25. The Respondent’s argument is that their decision dated 2nd December 2020 is no longer available for quashing, the same having been superseded by the decision of the Petitions Committee, and that if the same is still available for quashing, the prayer for certiorari is time barred. On the former, I am of the view that the same does not qualify or meet the threshold of what amounts to a preliminary objection.

26. A preliminary objection as established, must be one that clearly flows from the pleadings and the law as they have an interplay. Any issue that would call for proof or is to be supported by facts or evidence and is not purely a point of law, cannot form a preliminary objection. In my view, to determine whether the Petitions Committee decision dated 7th August 2021 supersedes the Respondent’s decision dated 2nd December 2020, this court would have to call for evidentiary support. For this reason alone, I find no merit in ground no. 6.

27. A plea on limitation of time on its own is a pure point of law, as established in the Mukisa Biscuit case [supra]. One of the orders the exparte applicant seeks is of certiorari to quash the Respondent’s decision contained in the letter dated 2nd December 2020. Order 53 rule 2 of the Civil Procedure Rules, 2010 provides as follows:

28. Time for applying for certiorari in certain cases [Order 53, rule 2. ]

29. Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, decree, conviction or other proceeding for the purpose of its being quashed, unless the application for leave is made not later than six months after the date of the proceeding or such shorter period as may be prescribed by any Act; and where the proceeding is subject to appeal and a time is limited by law for the bringing of the appeal, the judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.

30. This provision is in line with section 9 [3] of the Law Reform Act. It is evident that chamber summons application for leave to file judicial review proceedings was filed on 19th August 2021, approximately 8 months after the impugned decision of the Respondent. However, I agree with the Ex-parte Applicant’s argument that from order 53 rule 2 and section 9[3] above, the drafters anticipated a situation where the decision is subjected to an appeal process and hence the doctrine of exhaustion of remedies. In the present case, it’s not right for the applicant to file the application for leave before going through the Petitions Committee. Such a situation would be, in my view, what was anticipated under order 53 rule 2 above. It would be absurd, unfair and unjust to prematurely dismiss the Ex-parte applicant under such conditions. In the foregoing, ground no. 2 equally fails.

31. The other ground raised was that this Court has no power to issue adverse orders against the Petition Committee which is not a party to these judicial review application. This is an issue of joinder and non-joinder. It is my considered view that this issue can be cured by amendment of the pleadings, at the appropriate stage. After all, Order 1 Rule 9 of the Civil Procedure Rules, 2010 is clear that no suit shall be defeated by misjoinder or non-joinder of parties. To say the least, a party cannot be compelled by the Court or other party to sue parties they do not wish to. However, the ultimate consequences of non-joinder ought to be borne by a party who fails to join necessary parties to the suit. I do not find any merit in ground no. 3 as far as the preliminary objection is concerned.

32. I have little to say on ground 4, 5 and 7 given that the same were not sufficiently demonstrated. In Bashir Haji Abdullahi v Adan Mohammed Nooru & 3 Others [2004] eKLR, the Court held:

“We must point out from the outset that the preliminary objections as formulated above are bare and bereft of any sufficient material and are couched in such a way that it is not possible for a party to whom they are addressed to sufficiently prepare and be ready to counter them. We are of the considered view that if a party wishes to raise a Preliminary Objection and files in Court a Notice to that effect and is subsequently served on other parties to the suit, the Preliminary points should be sufficiently particularized and detailed to enable the other side and indeed the Court to know exactly the nature of the Preliminary points of law to be raised. To state that ‘the Application is bad in law’ without saying more does not assist the other parties to the suit nor the Court to sufficiently prepare to meet the challenge. If it is only at the hearing that the Preliminary Objection is amplified and elaborated, it gets the other side unprepared and is reminiscent of trial by ambush. Such practice of course ought to be discouraged”. 33. Having weighed the foregoing, I do find the preliminary objection in want of merit and is hereby dismissed.

RULING READ, SIGNED AND DELIVERED VIRTUALLY AT MALINDI THIS 1st DAY OF SEPTEMBER, 2022. ..................................S.M. GITHINJIJUDGEIn the absence of; -1. Mr Christian Adore for the Respondent2. Mr Omanga for Exparte Applicant3. Mr Lukara holding brief for Ms Rutta for the Interested Party