Republic v National Transport and Safety Authority Exparte Extra Solutions Ltd [2017] KEHC 930 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW NO.  260 OF 2017

IN THE MATTER OF PROCUREMENT OF TENDER NO.  NTSA/NCB-011/2015-2016: TENDER FOR SUPPLY, DELIVERY AND INSTALLATION OF ASSET TAGGING, BAR CODING AND MANAGEMENT SYSTEM BY MS NATIONAL TRANSPORT SAFETY AUTHORITY

AND

IN THE MATTER OF AWARD OF TENDER NO.  NTSA/NCB-011/2015-2016: TENDER FOR SUPPLY, DELIVERY AND INSTALLATION OF ASSET TAGGING, BAR CODING MANAGEMENT SYSTEM TO MS EXTRA SOLUTION LIMITED.

AND

IN THE MATTER OF THE CANCELLATION OF THE TENDER AWARD.

AND

IN THE MATTER OF THE PUBLIC PROCUREMENT AND ASSET DISPOSAL ACT, 2015

AND

IN THE MATTER OF THE CONSTITUTION OF THE REPUBLIC OF KENYA, 2010

REPUBLIC...........................................................................................APPLICANT

VERSUS

NATIONAL TRANSPORT AND SAFETY AUTHORITY.........RESPONDENT

EXTRA SOLUTIONS LTD.............................................EXPARTE APPLICANT

RULING

1. Vide an application dated 24th May, 2017 the exparte applicant herein Extra Solutions Ltd seeks from this court leave to institute Judicial Review proceedings and more specifically for:

a) orders of certiorari and prohibition for purposes of quashing the decision of the National Transport and  Safety Authority(NTSA) to terminate  the award  of Tender No.  NTSA/NCB-011/2015-2016, tender for supply, delivery and Installations of Assets Tagging, Bar Coding and Management System awarded to the applicant and that such leave do operate as a stay of any process to commence the procurement of the same services afresh;

b) That pending the hearing and determination of the application, the Honourable court do make an interlocutory order of prohibition and or injunction barring the respondent from procuring afresh in respect of the Tender No.  NTSA/NCB-011/2015-2016, tender for supply, Delivery and Installation of Assets Tagging, Bar Coding and Management  System already awarded  to the applicant but  readvertised  on 9th May  2017  for purposes of  fresh  procurement;

c) Costs of the application

2. The application is predicted on the grounds stipulated on the face of the notice of motion and verifying affidavit of Kennedy Wamae and statutory statement all dated 24th May 2017.

3. The applicant’s  case is that  the  respondent  NTSA advertised  a tender  in the daily press for  supply; Delivery and  Installation of  Asset Tagging, Bar Coding  and  Management System, being Tender  No.  No.  NTSA/NCB-011/2015-2016 and the applicant was one of the bidders out of the  11  bidders  who submitted  their bids  on 5th October 2016. The applicant’s deponent then  received a call from National Transport and Safety Authority by one Ms Silvia Njoki of the Procurement  Department of the respondent informing  him that  his company  had been awarded  the tender, and inquiring  about the  applicant’s  acceptance  letter.

4. That since the deponent did not know the caller, he decided to visit the respondent’s offices to present his acceptance letter and get more information, as he had not received any formal letter of award.  This was on 6th October 2016 when the deponent together with the Managing Director of the applicant company, Mr Ndegwa Muriithi visited the respondent’s offices.

5. It is alleged that while at the respondent’s offices, they met Ms Sylvia Njoki who showed them the letter of notification of award and she indicated to the applicant’s representatives that the original letter had been send to them through the applicant’s postal address No. 7686-00100 Nairobi and that the letter of acceptance from the applicant was needed urgently.

6. It is claimed that the applicant’s representatives returned to their offices  immediately and  wrote the  letter of acceptance which they  dispatched  to the respondent via courier services and  it  was received  by Ms Sylvia  Njoki.  The applicant followed up with an email addressed to Patrick and copied to Sylvia and on 7th June 2016, Sylvia acknowledged receipt of the acceptance letter by way of an email.

7. The  applicants claim that they sat  back  and  waited for the next  step  and  on 13th October 2017 Mr Patrick of the respondent  send  an email requesting  the  applicant  to provide  a performance  bond of  10% of the tendered  sum and  since  the request  did not  tally  with the particulars  provided  in the tender  document,  the  applicant Managing Director wrote an email  to Patrick Wanjuki  asking for clarification  as to the  percentage  of the performance  bond.

8. That on confirmation of the performance bond, the same was submitted on 14th October 2016 and Sylvia acknowledged receipt of the same.

9. It is alleged that strangely, on 18th October  2016  four  days  later, the applicant   received a  communication from Patrick giving  an ultimatum that the performance  bond  must be  furnished by close of business  on 18th October  2016 and  a response  was given to the effect that  a performance  bond  had already been delivered  on 14th October  2016 to the respondent  and  acknowledged  by Sylvia.

10. That there was silence from the respondent’s side as the applicant’s Managing Director send emails enquiring on the position of the matter.

11. That on  11th November  2016  when  an sms  was send to Patrick, he  responded  saying their  legal department  had raised  issues of  acceptance  of award  outside  the  time allowed  and  that they wrote “National Transport  and  Safety Authority had sought  the Public Procurement Oversight Authority’s  guidance  and  were awaiting  a response”

12. That on  15th November  2016,  the applicants send  out a hard  copy letter  enquiring the position  and  kept asking  the  position of the matter from the respondent until 20th January 2017 when the applicant’s deponent visited the respondent’s offices  and met  Ms Jacqueline Githinji who  also invited  Patrick  to her  office  and they explained  to the  applicant’s deponent that the Legal Department of the respondent had raised a  query about the  acceptance  letter which  had been  received and the time it  was  received  hence they were seeking legal advise from the Attorney General.  That the  deponent informed Patrick  that on the part of  the applicant, it  had sought  PPOA’s advise who had  informed  them  that there was  no issue  with the “acceptance time” and  promised to get back as soon as  the respondent  Authority received a reply  from the Attorney General.

13. It is further alleged that the respondent remained silent until  21st March  2017 when Sylvia wrote an email to the applicant with an attachment to the effect that the respondent Authority had decided to cancel  the tender  to the applicant  and asked  the applicant to collect letter of notification of cancellation as well as the  performance bond.

14. That  on approaching the  Postal  Corporation of  Kenya the applicant found that  the  notification  of award  letter  was  dated  4th October   2016  and  the acceptance letter was delivered  on 6th October  2016  within 7 days required, on receipt of the notification.

15. That  the applicants formally objected  to the decision through  their lawyers but the respondent  has never  responded  and on  9th May 2017 the respondent  readvertised  the tender inviting  fresh  bids.  The  applicant claims that the procedure adopted  by the respondent is suspect and has violated their right to information  and  a right to  be heard  over  the termination  of the contract  or the facts taken  into account in doing so and  that the respondent acted illegally hence their action should be reviewed.

16. Further, that the respondent made no reply to the demand within the stipulated time to enable the applicant proceed before the Review Board.

17. The application  for leave to institute judicial review proceedings was initially  struck  out by  this court  but on  application for review, which was opposed by the respondent, the court reconsidered the matter  and  reinstated the  application hence these proceedings pursuant to the ruling on review  delivered on  7th November, 2017.

18. On 17th November  2017,  the respondent filed a replying affidavit sworn by Patrick K. Wanjuki, the Head  of Procurement  of the respondent Authority, denying the depositions of the applicant and contending that the statement  is fatally defective  because it contains  facts only and  not supported by any grounds. Mr Wanjuki maintained that the purported acceptance of the award was too late and of no legal effect as the tender validity period had lapsed hence the respondent properly cancelled the tender award.

19. It was deposed that the applicant is a dilatory and indolent  suitor and ought  not to  benefit  from equity  and  that once  the tender validity period had lapsed, the  respondent  acted lawfully  as no contract could  be entered  into  in the circumstances.

20. The respondent urged the court to dismiss the application for leave with costs because it lacks merit and raises no ground.

21. The court notes that the applicant, simultaneous with the filing of the written submissions on 30th November, 2017 also filed a supplementary Statement but without leave of court and neither did he intimate to court that it had filed such further document for the court to allude to it hence this court is not inclined to rely on the said document. It is hereby struck out for being improperly on record as it was sneaked in during the filing of submissions without leave of court.

22. The parties’ advocates Mr Omino for the applicant and Mr Gachuba for the respondent filed written submissions canvassing their respective client’s position.

23. The applicant  submitted that  at the leave  stage, the applicant  is not to argue the merits of his case and that the respondent Authority acted irrationally  and with  malice  because  the  acceptance of notification of  award   was received   within  7 days  of such notification  hence there  was no reason  to cancel the tender  and  that such  cancellation  was unreasonable.  That  although the applicant  should have  filed a request for review before the Public Procurement  Administrative Review Board, Section  174 of the Act states that “ the right  to request  a review under this part  is in addition to  any other legal remedy a person may have” hence, the  applicant  is  properly  before the court and that is the  reason why  Section 167 of the Act  limits  the  time  for filing  request  for  renew before the  Review Board  to 14 days  but does not limit  any other  action taken elsewhere to address the  inequities of a procuring entity after such time has lapsed.

24. It was  submitted that the applicant was not accorded fair administrative  action in accordance  with Section  4  of  the Fair Administrative  Action Act, 2016  and  Article  47  of the Constitution.

25. It  was  further submitted   that  it  was  unreasonable  for the respondent to claim that the letter of acceptance was  received  out of time when the  notification was given by a letter  dated 4th October  2017 and  acceptance  letter  submitted  on 6th October  2016  and  acknowledged.

26. It  was  also submitted that these  proceedings  were instituted  in line with  Section 7 of the Fair Administrative Action Act, 2015   which stipulates  that “ Any person who is aggrieved by an administrative  action or  decision may apply for  review  of the  administrative  action or  decision to a court  in accordance  with Section 8, or a tribunal……”

27. It  was  therefore  submitted  that time for  filing  a request  to the  Board having elapsed,  the applicant  is entitled  to challenge  the decision of the  respondent  before  this court on whether  the applicant applied itself to an alternative remedy.

28. It was  submitted that  the applicant sought an advise  from PPOA who stated that there  was no issue with acceptance time and  that it  engaged in communication with the respondent to resolve the matter amicably  but  the respondent  acted unreasonably that is why the applicant resorted  to court, to challenge  the  discrimination, bad faith and reckless bias, and irrationality of the respondent Authority.

29.  It was submitted that this court is not bound by strict caprise of procedure and technicalities which are abhored by the Fair Administrative Action Act, 2015 and Article 159 of the Constitution since Judicial Review is a tool in defence of defiance by authorities and all manner of violation of rights.

30. The court was urged to be guided by the Principles laid down in Aden Noor Ali vs IEBC, Jenipher Shamala & Another [2017]EKLR namely:

1) Whether  the  applicant has sufficient  interest;

2) How the  applicant  is affected  by the decision;

3) Demonstration  that there is  arguable  case;

4) And the decision complained of must have been made by a public body.

31. In its opposing submissions filed   on 20th November 2017, the respondent contended that there exists an alternative remedy that the exparte applicant did not exhaust hence it has no prima facie case.  Reliance was placed onNasieku  Tarayia  vs Board  of Directors, AFC & Another [2012] e KLRwhere it  was held  that Judicial Review  is an alternative  remedy  of the last resort  and  that where an alternative  remedy exists the court has to be satisfied that Judicial Review is the more convenient, beneficial, efficacious  alternative  remedy available  or the court  to grant  leave.

32. It was  submitted that  Section  35(2)  of the Act  provides  for  recourse  to the Public  Procurement Regulatory Authority (sic) and if aggrieved  by the decision thereof, to institute Judicial Review  under Section 39  of the Act.

33. Reliance was placed on Environment and Combustion Consultants Ltd vs Kenya Pipeline Company Ltd & 2 others [2016] e KLRwhere the court explained the application of Sections 35, 38 and 39 of the Public Procurement and Asset Disposal Act and Section 9(2) of the Fair Administrative Action Act.  It was also submitted that the other alternative remedy  available  to the exparte applicant  is under Section 167(1) of the Public Procurement and Asset Disposal Act where the  applicant is obligated  to request  for  review  before the Review Board  and that in this case there was no explanation for failure  to exhaust   this option or why it  never approached  the High Court to enlarge  the time to file a  request  for  review.

34. It was also submitted that the applicant was indolent so it should be denied the reliefs sought.  Reliance was placed on Abdalla Abubakar Miraj & Another v Kenya Ferry Services Ltd [2015] e KLR.

35. On whether  the application  discloses  a prima facie arguable   case, it  was submitted that the statement contains only facts  and no  grounds  upon  which  the prayers  are based  contrary to Order  53  Rule 4(1) of the Civil Procedure Rules, 2010  and that in the absence of the grounds relied on such as illegality, unreasonableness, irrationality, procedural impropriety, etc, no prima  facie case is disclosed  to merit  the  court’s review.

36. Further reliance was placed on Republic vs  Chief Magistrate’s Court  Nairobi Exparte Jeff Koinange  & 11 Others  [2017] e KLRwhere the court emphasized  the need for  reliefs sought  and grounds upon which those reliefs are predicated to be contained  in the statutory  statement and  nowhere else, unless leave is sought and obtained  to amend  the  statutory  statement.

DETERMINATION

37. I have considered  all the foregoing  and  in my humble view, the main issue for determination  is whether the applicant  is entitled to the leave sought to institute Judicial Review  proceedings  against the  respondent.  There are also anciliary questions which the court will endeavour to answer.  The requirement that leave  be sought  and obtained  before  applying for Judicial Review order of mandamus, certiorari and  prohibition  is intended  to identity and  filter  out  at  an early stage, claims  which may  be trivial or without  merit  or  statute  barred.

38. At the leave stage, the applicant is under a duty to demonstrate that it has a prima facie arguable case for consideration or indepth investigation at the substantive stage.

39. Further, at leave stage, a party would demonstrate that they have no other alternative remedy to Judicial Review proceedings or that they have exhausted the alternative remedies or that there are special circumstances warranting  exemption from resorting to alternative  remedies as stipulated in Section 9 of  the Fair  Administrative Action Act, 2015. See Republic vs County Council of Kwale & Another  Exparte  Kondo  & 57  Others  Mombasa  HC Miscellaneous  Application  No. 384  of  1996.

40. The applicant  at the leave stage  needs to  demonstrate  that the  impugned decision is illegal, illegitimate, irrational, procedurally  improper  and or  that it was  made in breach  of the rules  of natural  justice  and or legitimate  expectation by the  applicant.

41. The Onus is on the applicant to establish the arguability of his application. Judicial Review Remedies are discretionary therefore the  applicant must also approach the court with expedition and the court in exercising its jurisdiction exercises discretion judiciously. Accordingly, the conduct of the applicant and timeliness are key to the determination of whether or not leave to apply should be granted.

42. In this case, as per the chronology of events given by the applicant in its supporting  affidavit, it  is clear  that the alleged  impropriety was noted  on 18th October   2016  when the applicant was given an ultimatum to submit a performance  bond  by end of the day yet the said bond  had been delivered  on 14th October 2016.

43. Despite not receiving  any response  for nearly over one  month, the applicant  waited until  11th November  2016  when it  requested  Partick through an sms and even then, after sending a written enquiry on 15th November  2016, it  was not until  20th January  2017  when the applicant  visited  the  respondent’s  offices  and that it continued writing  to the  respondent to inquire into the status of the tender.

44. This court also notes that the documents which are listed and filed with the application for leave are not anchored on any affidavit.  They are simply listed as list of documents as if they are documents to be produced later at the hearing in a civil suit as required by order 11 of the Civil Procedure Rules.  The said documents are not annexed to any affidavit and are not even commissioned as exhibits or annextures. They are not marked and some of them like the 13th document is uncomplete.  It is signed by Director General Francis Meja but it does not show from whom the letter or document emanates.  And as correctly submitted by Mr Gachuba, the statutory  statement  does not  accord with  the provisions of Order  53  of the Civil Procedure  Rules  which mandates  that the application for leave  must be  accompanied by a statement setting  out the names  and  addresses of parties, the reliefs sought, and  grounds upon which the reliefs are sought. The statement which is signed by Kennedy Wamae is not even dated and has not set out the reliefs sought and the grounds upon which the reliefs are predicated.

45. In addition, the prayer 2 for certiorari is muddled up with prohibition such that whereas it is clear that certiorari would quash, prohibition cannot quash hence the court does not decipher the purpose for which leave to apply for prohibition in the second prayer which is certiorari is sought would serve.

46. Whereas  this court  would  and  does excuse  the  applicant  for bringing  the notice  of motion instead  of chamber summons as stipulated  in Order 53  Rule 1 of the Civil Procedure Rules as being merely want of form curable by application of Article  159  of the Constitution, and whereas this court would also excuse the applicant for swearing a supporting affidavit which is not even necessary in such proceedings; as only  a verifying  affidavit  is required, it is inconceivable  that the applicant who is ably represented by a senior advocate  would file a statement  with no grounds and reliefs sought and merely file a list of documents which are not marked such that the court would not be  enabled to  make  reference  to the said   documents  in line with either the statutory statement or affidavit by whatever  name.

47. Further, it is unconceivable that the applicant would file a  statement   which does not  set out  any reliefs  and  or grounds  upon which those reliefs are predicated and claim that the failure  to do so is  a procedural  technicality  curable  by Article 159  of the Constitution  and  the Fair Administrative  Action Act,2015.

48. Order 53 Rules 4(1) of the Civil Procedure Rules, 2010  mandates  that the reliefs  sought  and  grounds relied  on be  contained  in the statutory  statement  and  nowhere else.  It is now established law  that  grounds upon which  Judicial Review  remedies  may be  sought  and  obtained  include  illegality, Wednesbury unreasonableness/irrationality, procedural impropriety; breach of rules  of natural justice  and breach  of legitimate  expectations, among  others.

49. These grounds should not be haphazardly scattered and or be in the submissions which latter are not pleadings or evidence.  The grounds must  be clearly housed  in the statutory statement  without  which the  court would have no option  but to  decline  to exercise its discretion to grant  leave to  apply.  This is  because  once leave is granted, the applicant would only be allowed to file a substantive notice of motion and serve upon the  respondent, accompanied by the statutory statement and  verifying  affidavit  accompanying  the application for leave. Any other or further statement or affidavit can only be filed with leave of court.

50. The court would exercise its discretion to grant leave and  where an  application to amend the statutory  statement  is made, grant  such leave to amend it. However, this is not the case here.  The applicant  does not  appear to appreciate  the requirement  for setting  out  reliefs  and grounds or to amend the statutory statement yet the respondent raised that issue  at an early stage of filing a replying  affidavit.

51. The applicant could have revisited its statutory statement and sought for an amendment to set out the reliefs sought and grounds.  It did not.  I refuse to accept reliance on Article 159 of the Constitution as panacea of all ills in every situation.  See Republicvs Chief Magistrate’s Court Nairobi exparte Jeff Koinange & 11 Others [2017] e KLR.See also Civil appeal No. 154/2013 Kukuta Maimai Hamisi vs Peris Pesi Tobiko & 2 Others [2013] e KLR(Court of Appeal).

52. Still on delay, the applicant dilly dallied filing these  proceedings by lodging complaints seeking to know the   position of the tender until the respondent readvertised the tender on  9th May 2017 yet the applicant  was aware that by 21st March 2017 the respondent  had  cancelled  the tender.

53. It was not until 25th May 2017 that the applicant approached this court seeking for leave and stay in the form of prohibition or injunction.  Todate, the applicant who  has no  stay order  has  not filed any affidavit to demonstrate to the court that the respondent has not completed the second phase of the procurement process  as per the advertisement  of  9th May  2017 such that  even if this court  was  to grant  leave and  stay, they would be mere academic  orders meant to serve  no purpose  or at  all.  Court orders are not issued in vain. they are  issued to serve a particular purpose and where, for example, the impugned  decision no longer serves  any purpose, or has been implemented, this court would be engaging in a pious  exploration if it issued orders which are incapable of  enforcement  and therefore vain. The closing of the readvertised tender was on 31st June 2017 at 10. 00a.m. and it is probable that the tender validity period is gone by an award   and contracts may already have been executed and or performed.

54. The respondent  also raised the issue of the alternative remedy being available to the applicant  and submitting that Judicial Review is a remedy of the last resort and that where the alternative remedy exists, the court has to be satisfied  that Judicial Review is the more convenient, beneficial  efficacious  alternative remedy, for the  court to grant.

55. The applicant maintained that Section 174 of the Public  Procurement and  Asset Disposal Act  allows the  aggrieved  persons to either file  request for  review  or any other remedy and that it  had chosen the filing of Judicial Review because the  respondent  being a statutory body in making the decision to cancel the tender awarded to the applicant  made an administrative  action which could be  challenged  by way of  Judicial Review. Further, that the period for filing or request for review had elapsed hence Judicial Review was the most appropriate remedy in the circumstances.

56. Albeit  the Nasieku  Taraya  vs  BOD  AFC & Another (supra) case was decided before the Fair Administrative  Action Act 2015 was enacted, the Environmental & Combustion Consultants Ltd vs  Kenya Pipeline  Company Ltd & 2 Others  (supra) case was initiated  in March 2016   and  decided on 20th May 2016 after enactment and operationalization of Fair Administrative  Action Act, 2015. The court  in the above Nasieku  case (Odunga J)  examined  the  provisions of  the Public  Procurement and Asset Disposal Act, 2015 in detail  as well as the  provisions of  Fair Administrative Action Act, 2015 on exhaustion or  resort  to alternative remedies  and  the consequences thereof.

57. According to the  applicant, it  wrote  to the  authority  seeking for a  clarification  and  received  a letter to  the  effect that there  was no issue  with regard  to the acceptance  time.  Further, that it  took time  writing  to the  respondent  seeking   for  an amicable  settlement  of the issue  of the award to no  avail before  resorting  to court  for  Judicial Review.

58. However, as I have  stated earlier, the ‘exhibits’ purportedly  relied on  by the applicant  are not  marked  or identified  and  there is no such letter  written by the  PPOA stating that  there is no issue with  the  time of the  letter of acceptance.

59. Documents which are simply filed without reference being made  thereto  in the statement  or in  an affidavit  remain  just that- documents and are of no evidential value to the proceedings  before the  court.

60. Nonetheless, I am  in agreement with the applicant  that Section 174  of the Public Procurement  and  Asset Disposal Act allows a person who would  otherwise  be locked out  from invoking Section 175(1)  of the Act to apply any other procedure available in law to seek a remedy.

61. Accordingly, I hold the view that the applicant  was  in order and  at  liberty to institute Judicial Review proceedings   under Order 53  of the Civil Procedure  Rules  and  Section  174   of the Public Procurement  and  Asset Disposal Act,2015, which  proceedings differ in every respect from the Judicial Review  contemplated  under Section  175(1) of the Public Procurement  and  Asset Disposal Act,2015.

62. This position was confirmed by the Court of Appeal in Alghurair Printing and Publishing LLC vs Coalition for Reforms and Democracy & 2 Others [2017] e KLR where the Court of Appeal stated inter alia:

“……A distinction  must therefore  be drawn between Judicial Review  as  contemplated  under Section 175, which  would be  akin to an appeal by an applicant from the decision of the Review Board, and the Judicial Review instituted by the 1st respondent  as an alternative  remedy  under Order  53.  This  being the case, the  need to  comply  with the 14 days  period for filing of the Judicial Review under Section 175 of the Public Procurement  and  Asset Disposal Act did not  arise, as the requirement did not  apply to the  1st respondent’s  Judicial Review  application  instituted  under Order  53.

Accordingly, I find and hold that the 1st respondent was entitled  to institute  the Judicial Review proceedings for the review w of the IEBC’s tender award under Order  53  of the Civil Procedure Rules, which  proceedings  were competent , and  vested  the  High Court with jurisdiction  to determine it”.

63. However, the applicant also claims that the respondent  Procuring  Entity acted illegally in cancelling  the  tender  which it had awarded the applicant and which the applicant had accepted  the notification within 7 days of receipt of the notification of award  and even submitted the performance bond. The applicant maintains that the acceptance was done within the stipulated 7 days.

64. Albeit  the applicant  maintains  that it submitted  the acceptance  letter within 7 days, and that it consulted PPOA on the acceptance  time and  got a clean  advise that  there  was  no  issue  with the acceptance time, the applicant did not annex to his affidavit or statutory statement the copies of tender documents and neither were the list of documents filed made part of the affidavit or statement   as annextures.

65. Rule 9 of the Oaths and Statutory Declaration Rules (Revised 2012) provides that:

“9. All exhibits to affidavits shall be securely sealed thereto under the seal of the Commissioner, and shall be marked with serial letters of identification”

66. Under Section 10 of the said Rules, the forms of Jurat and of identification of exhibits shall be those set out in the Third Schedule.

67. In this case, whereas  the court would not concern itself  with the  format  of the jurat  or the identification of the exhibits, it must  be  a concern that   there  are  no exhibits  securely  sealed  and or marked  for identification.  A list of documents filed in proceedings is not an exhibit.  It remains just a list. An exhibit   is defined in the Fourth Edition of Osborn’s Concise Law Dictionary as:

“ Exhibit: a document  or thing  produced for the inspection of the court; or shown to a witness when giving evidence  or referred  to in  deposition; or  a  document  referred  to, in but not annexed to, an affidavit”

68. The Legal  Dictionary defines  an exhibit  as a known  to be  “ a paper or document  produced  and  exhibited  to a court  during  as trial of hearing, or to a person taking  depositions, or to auditors  or arbitrators  as a voucher, or  in proof  of facts, or  as otherwise  connected  with the subject  matter, and which, on  being accepted, is marked  for  identification and  annexed to  the  deposition, report, or  other  principal document, or  filed of  record, or otherwise  made a part of  the case.”

“A paper, document, chart, map or the  like, referred  to and made  a part  of an affidavit, pleading, or brief;  An item of  physical, tangible  evidence that it to be  or has been  offered  to the court for  inspection”

69. What flows from the above definitions is that  an exhibit  must be referred to, produced for inspection,  shown to a witness, or annexed  to either  a deposition/affidavit  or other  principal document or report  and made  part of the case.

70. In this case, as earlier stated, the applicant filed a list of documents  which were never marked for identification and neither the affidavit filed nor statutory statement refers to those  documents  as exhibits  and  neither are the  said documents marked as exhibits  and  neither  are the said documents  securely  sealed or marked  with serial letters  of identification as required  under Rule 8 of the Oaths and  Statutory  Declarations Rules (Revised 2012).

71. Accordingly, I have no hesitation in finding that documents which are merely filed in court and not referred to or marked as exhibits are not produces as such exhibits for the court’s inspection.

72. In the end, I find that the applicant has not demonstrated that it has a prima facie arguable case for consideration or investigation by this court at the substantive stage if leave were to be granted. The application is evidently incompetent to be allowed to proceed to the substantive stage. It would be a waste of judicial time to delve into the merits of the allegations raised by the applicant.

73. Accordingly, I dismiss the application dated 24th May 2017 and filed court on 25th May 2017 with an order that each party shall bear their own costs of these proceedings.

Dated, signed and delivered in open court at Nairobi this 20th day of December 2017.

R.E. ABURILI

JUDGE

In the presence of:

Mr Omino for the exparte applicant

Mr Chadiani h/b for Mr Gachuba for the respondent

CA: George