Okiya Omtatah Okoiti & 2 others v Attorney General & 4 others [2020] eKLR

IN THE COURT OF APPEAL

AT NAIROBI
(CORAM: KOOME, GATEMBU & J. MOHAMMED JJ.A)
CIVIL APPEAL NO. 13 OF 2015
BETWEEN
OKIYA OMTATAH OKOITI....................................................1 ST
APPELLANT
WYCLIFE GISEBE NYAKINA...............................................2 ND
APPELLANT
AND
THE ATTORNEY GENERAL...............................................1 ST
RESPONDENT
KENYA RAILWAYS CORPORATION................................2 ND
RESPONDENT
THE PUBLIC PROCUREMENT
OVERSIGHT AUTHORITY.................................................3 RD
RESPONDENT
CHINA ROAD AND BRIDGE CORPORATION...............4TH
RESPONDENT
LAW SOCIETY OF KENYA.................................................5 TH
RESPONDENT
CONSOLIDATED WITH
CIVIL APPEAL NO. 10 OF 2015
BETWEEN
THE LAW SOCIETY OF
KENYA..................................................APPELLANT
AND
THE HON. ATTORNEY GENERAL...................................1 ST
RESPONDENT
KENYA RAILWAYS CORPORATION...............................2 ND
RESPONDENT
THE PUBLIC PROCUREMENT

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OVERSIGHT AUTHORITY................................................3 RD
RESPONDENT
CHINA ROAD AND BRIDGE CORPORATION..............4TH
RESPONDENT
OKIYA OMTATAH OKOITI...............................................5 TH
RESPONDENT
NYAKINA WYCLIFFE GISEBE........................................6 TH
RESPONDENT
(Being an appeal from the Judgment and Decree of the High Court
of Kenya at Nairobi (Lenaola, J.) dated 21st November, 2014
in

Nai. Const. Pet. No. 58 of 2014

Consolidated with
Pet. No. 209 of 2014)
*******************
JUDGMENT OF THE COURT
1. Although a substantial segment of the Standard Gauge Railway (SGR)
project in Kenya is complete and operational, the manner in which it was
procured continues to generate interest, perhaps on account of the
magnitude of the investment in it. For instance, in a recent article
published in the Daily Nation of 27th May 2020, Robert Shaw, wrote:
“The SGR was a government to government turnkey
operation negotiated in the shroud of opaqueness and dumped
upon the Kenyan population with the minimum of scrutiny. It’s
no exaggeration to say it has so far cost twice what it should
have and the quotes submitted were around half of what it has
cost so far. Why the government went for a more expensive
non-tendered option is an open question, which most Kenyans
can easily hazard a guess at the answer.”
2. In the judgment the subject of this appeal delivered on 21 st November
2014, the High Court (Lenaola, J. (as he then was)) declined an invitation
by the appellants, Okiya Omtatah Okoiti, Wyclife Gisebe Nyakina and the
Law Society of Kenya, to stop the construction of the SGR. The court
dismissed the appellants’ petitions in which they claimed that the
procurement and contracting for the SGR violated the Constitution and the
laws of Kenya. In the same judgment, the learned Judge found that the
documents that had been tendered by the appellants as evidence in
support of the petitions were inadmissible having been obtained illegally.
He accordingly ordered those documents to be expunged from the record.

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3. Aggrieved by that judgment, the Law Society of Kenya (hereafter the

LSK) filed Civil Appeal No. 10 of 2015 with 5 grounds of appeal while Okiya
Omtatah Okoiti and Wyclife Gisebe Nyakina (hereafter Omtatah and
Gisebe) filed Civil Appeal No. 13 of 2015 with 51 grounds of appeal. The
two appeals were consolidated by an order of the Court given on 8 th
November 2016 with Civil Appeal No. 13 of 2015 as the lead file.
4. The grievances in the numerous grounds of appeal coalesce into three
main issues which we will consider: First, whether the learned Judge erred
in ordering to be expunged from the record the documents that had been
presented by the appellants as evidence in support of the petitions;
second, whether the Learned Judge erred in concluding that the
procurement of the SGR did not contravene the Constitution of Kenya; and
third, whether the learned Judge erred in holding that the repealed Public
Procurement and Disposal Act, 2005 (the Act) did not apply to the
procurement by reason of Section 6(1) thereof. There is a fourth
preliminary issue which is whether the appeal is overtaken by events, is an
academic exercise and is moot because the construction of the railway is
substantially completed. Before we address those issues, the procedural
background to the appeals will provide context.

Background
5. In their petition presented to the High Court on 5 th February 2014,
Omtatah and Gisebe invited the court “to intervene and stop the
contracting of the 4th respondent to implement the Mombasa-Nairobi-
Malaba/Kisumu standard gauge railway in flagrant violation of both statute
and of the 2010 Constitution of Kenya.” At the time the petition was
presented to court, construction of the railway was yet to commence. The
appellants had hoped to stop it dead in its tracks, as it were.
Simultaneously with the petition, they applied for interim conservatory
orders to suspend the contracts entered into between the 2 nd respondent,
Kenya Railways Corporation (hereafter KRC or the 2 nd respondent) and the
4th respondent, China Road and Bridge Corporation (hereafter CRBC or the
4th respondent) for the supply and installation of facilities, locomotive and
rolling stock for the railway.
6. In the petition, Omtatah and Gisebe stated that they appreciated that
the railway line “is important and necessary” for the realization of Kenya’s
development agenda but were opposed to “the scandalous violations of
both the Constitution and statutes in the manner the project was procured
and is being implemented”; that, “for the project to be implemented
efficiently, transparently, accountably and cost effectively, then it must be
procured according to the established law and laid down procedures.”
They complained that no due diligence had been done; that no
independent feasibility study and design of the project was undertaken
before seeking contractors to implement it; that there was a conflict of
interest in the Government contracting CRBC to implement the project
whose feasibility study and design it had intriguingly carried out for free;
that in any event CRBC was ineligible for the award of the contract as it
had been blacklisted by the World Bank for engaging in corruption in a

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road project in the Philippines.

7. Omtatah and Gisebe contended in the petition that the single sourcing
of CRBC to execute the project contravened Articles 10, 46, 47, 201 and
227 of the Constitution; the Act, the Public Officer Ethics Act; and the
Ethics and Anti-Corruption Commission Act, and that the contract awarded
to CRBC was therefore “unconstitutional, irregular, illegal, invalid null and
void.”
8. The petition was supported by an affidavit sworn by Omtatah on 5 th
February 2014 to which he annexed, in a bundle, correspondence
emanating from the CRBC, the Ministry of Transport, office of the then
Deputy Prime Minister, Embassy of the Republic of China, Attorney
General’s chambers (hereafter the AG or the 1 st respondent), KRC, and
Public Procurement Oversight Authority (PPOA or the 3 rd respondent),
among other documents.

9. For reliefs, Omtatah and Gisebe prayed for declarations that: there was
no valid contract between the Government of Kenya and CRBC; that the 1 st
to 3rd respondents failed to safeguard public interest and common good in
failing to ensure the procurement accorded with the law; that the
Government should not conduct business with CRBC; and that the railway
should be procured through competitive bidding. They also sought: orders
of injunction to restrain the 1 st to 3rd respondents from transacting with or
continuing with the contract with CRBC; mandatory orders to compel the
AG to direct the Police to criminally investigate public officers including
officials of the 1st to 3rd respondents who were involved in the fraudulent
procurement process as well as officers of the 4 th respondent.
10. The petition by the LSK, in which KRC and the AG were named as
respondents, was filed on 2nd May 2014 and sought declarations that KRC
as a procuring entity is subject to Articles 10, 42, 69, 70 201 and 227 of
the Constitution; that the award of the contract to CRBC for the supply and
installation of facilities and diesel powered engines which are outdated
and pollute the environment violates those provisions of the Constitution;
and that the purported ‘christening’ of the contract as a government to
government contract is unlawful; and an order of Certiorari to quash the
award of the contract.

11. LSK averred that under Article 227 of the Constitution, KRC is enjoined
to contract for goods and services in accordance with a system that is fair,
equitable, transparent, competitive and cost effective; that KRC was
required to comply with the provisions of the Act which, under Section 29,
required a procuring entity to use open tendering or an alternative
procurement procedure. It was averred that under Article 42 of the
Constitution, every person has a right to a clean and healthy environment;
and that the use of diesel-powered engines which were to be procured
would result in the pollution of the environment through emission of
noxious and dangerous fumes; and that the cost of construction was

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overpriced.
12. Like the petition by Omtatah and Gisebe, the petition by LSK was also
accompanied by an application under certificate of urgency seeking a
conservatory order to restrain the respondents from proceeding with the
execution of the contract or implementation of any agreements relating to
the SGR project.
13. In his affidavit in support of the petition and the application, Apollo
Mboya, the then Secretary of the LSK annexed a feasibility study report of
the project undertaken by CRBC in January 2012; copies of award of
contract dated 10th July 2012 and contract agreement dated 4 th October
2012 between KRC and CRBC for the construction of the project and
purchase of locomotives and rolling stocks for the railway; copy of letter
dated 14th March 2013 addressed to CRBC by KRC withdrawing the letter
of award of contract on the basis that the procurement was to be funded
by a negotiated grant/loan and therefore exempt from the application of
the Act by reason of Section 6 (1) thereof; newspaper articles commenting
on the project; correspondence between PPOA and the AG’s office
including an opinion by that office; correspondence from the office of the
Deputy President Chief of Staff; and a press statement from the office of
the President relating to the project issued on 28 January 2014, among
other documents.

14. It was deposed that as the award of the contract was withdrawn, there
was no valid contract in existence and that KRC: did not lawfully discharge
its mandate under Article 227 of the Constitution; violated Article 201 of
the Constitution; failed to observe national values and principles of
governance under Article 10; failed to ensure sustainable exploitation,
utilization, management of the environment; failed to ensure there was
public participation in management, protection and conservation of the
environment and in financial matters; failed to ensure that public money
was used in a prudent and responsible way.
15. In his replying affidavit in opposition filed on 13 th May 2014, A.K.
Maina, Managing Director of KRC, after setting out the background and
benefits of the project to the Country, deposed that KRC developed a
master plan for the project in 2009 and embarked on procurement of
consultants to undertake a feasibility study for the construction of the SGR
which process was halted through litigation; that on 12 th August 2009, the
Government of Kenya (GOK) signed a memorandum of understanding with
CRBC for the feasibility study and preliminary design of Phase 1 of the
project from Mombasa to Nairobi which provided that CRBC would
undertake the study at its own cost and if viable, it would identify funding
for the project; that GOK through the Cabinet subsequently directed the
railway to be developed through Government to Government arrangement
supported by Government budget and railway development fund.

16. He deposed further that the feasibility study was submitted to the
GOK in February 2011 and following discussions between KRC and CRBC,

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the feasibility study and preliminary design report was approved by KRC
on 26th June 2012; that thereafter KRC and CRBC appointed negotiating
teams to negotiate commercial turnkey contracts for civil works and for
the supply and installation of facilities, locomotive and rolling stock and
the resultant contracts were approved by the Ministry of Transport and the
AG’s office; that the contract for civil works was signed by KRC on 11 th July
2012 while that for the supply and installation of facilities, locomotive and
rolling stock was signed on 4 th October 2012 “as part of the process
towards the negotiations for funding for the project” from the Republic of
China and were to “become effective only after executing the financial
agreement.”

17. He went on to state in his affidavit that GOK entered into a financing
agreement with Exim Bank of China for a concessional and commercial
loan to support the project; that under that agreement, CRBC was to be
engaged as the Engineering Procurement and Construction Contractor and
that consequently, as this was a negotiated loan, the arrangement was in
line with Section 6(1) of the Act; that the project was budgeted for in the
2013/14 budget and a railway development fund was established to be
financed by a railway development levy approved by Parliament as part of
the 2013/2014 Finance Bill on 24th October 2013.
18. He deponed further that it was established that CRBC had the
requisite technical, financial and legal capacity to successfully implement
the project; that an environment and social impact assessment study was
undertaken in 2012 and all possible environmental concerns addressed;
that in awarding the contract to CRBC, KRC ensured that the project
design complied with all the environmental requirements. He stated that
the matters the appellants were complaining of were already the subject
of investigation by the other organs, namely, the National Assembly, the
Auditor-General, and the EACC and that the petition was deficient in
particulars.

19. In an affidavit sworn on behalf of the AG and PPOA in opposition to the

petition, Mwangi Njoroge, Deputy Chief Litigation Counsel in the office of
the AG decried that the alleged violations of the Constitution in the
petitions were devoid of particulars or evidence; that Committees of the
National Assembly had fully investigated the matter and concluded that
the project should be implemented; and that the prayers sought would go
against the doctrine of separation of powers.
20. The Deputy General Manager of CRBC, Xiong Shiling deponed in his
affidavit in opposition to the petitions that CRBC is a state owned company
of the People’s Republic of China with extensive experience in
international railways, airports and like projects; that the memorandum of
understanding between CRBC and the Ministry of Transport provided that
should the feasibility study be approved, the project was to proceed on the
basis of “an EPC contract” (engineering, procurement and construction
contract) or turnkey mode contract which is an internationally recognized
mode of contracting, including by the International Federation of
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Consulting Engineers (FIDIC). It entailed the contractor undertaking the

feasibility study, the design, the construction works, the equipment
procurement, installation and commissioning of the project for a lumpsum
contract sum; that under this form of contract the owner, in this case GOK,
does not bear major risks on the project; that under an EPC contract, it is
for the contractor to ensure the final product is delivered in a fully
functional state and the contractor bears any additional costs that may
arise on account of inaccurate or incomplete information at the time of
conducting the feasibility study or on account of substandard designs.

21. He deponed that the EPC contract included “supplying and installing
the locomotives, setting up the communication, signal and information
system, setting up the electricity supply and installing the operating
system of the entire railway system” and that “in the circumstances, it
would not be possible for the locomotives to be supplied by a separate
entity.”; that KRC would be in charge of supervision of the project and had
in that regard invited bids for the appointment of independent consultants
to review the design of the entire project and to oversee the
implementation of the project including approving any payment
certificates. He denied that it had inflated the price for the project.
22. Regarding the claim that CRBC was barred by the World Bank from
undertaking projects, he deposed that it was debarred “on suspicion of
collusion not for being engaged in corruption”. He explained the
circumstances in the Philippines leading to “the World Bank unilaterally”
announcing its decision to sanction 7 companies including CRBC, a
decision that CRBC challenged.
23. As the two petitions raised similar issues, they were consolidated by
an order of the court given on 27th June 2014. On 1st July 2014, the parties
agreed to abandon all interlocutory applications and to focus on the
hearing of the substantive consolidated petition. Leave was granted by the
court for any of the respondents wishing to file cross petitions to do so
within 72 hours.

24. KRC filed a cross petition on 7 th July 2014 seeking declarations: that a
constitutional petition cannot be founded on alleged “public documents”
obtained in breach of the Constitution and the Evidence Act; that a
constitutional petition cannot be founded on documents whose source or
origin has not been disclosed and whose authenticity cannot therefore be
vouched for; a declaration that the use and production of the alleged
“public documents” without disclosing their source or authenticity is a
breach of KRC’s right to a fair hearing as guaranteed under Article 50 of
the Constitution; orders to expunge from the record specific exhibits
annexed to the affidavits in support of the petitions, among other prayers.
Affidavits in reply to the cross petition as well as supplementary affidavits
were filed.
25. The hearing proceeded thereafter before the High Court on the basis
of the consolidated petitions, the affidavits and submissions culminating in

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the judgment, the subject of this appeal, that was delivered on 21 st

November 2014.
Submissions
26. At the hearing of the appeal, Mr. Omtatah and Mr. Gisebe, the
appellants in Civil Appeal No. 13 of 2015, appeared in person. The other
parties were represented by learned counsel. Miss. Tabut held brief for
Mr. Eric Masese for the LSK, the appellant in Civil Appeal No. 10 of 2015.
Mr. Ngumbi held brief for Thande Kuria for the A.G and the PPOA.
Professor Albert Mumma appeared with Mr. Charles Agwara for KRC,
while Mr. Kiragu Kimani appeared for CRBC.

27. As already indicated, the crux of the appeal is that the Learned Judge
erred in concluding that the procurement of the SGR project did not
contravene the Constitution of Kenya; in holding that the Act did not apply
to the procurement; and in ordering documents tendered in support of the
petitions to be expunged from the record.
28. Urging the appeal, Mr. Omtatah submitted that the petitions were a
“plea for constitutional and statutory protection of the public interest in
the procurement of the Standard Gauge Railway (SGR) project”; that the
Court was called upon to apply and uphold the supremacy of the
Constitution, sovereignty of the people, national values and principles, and
the Bill of Rights; and that the court should jealously protect “the public
interest against corrupt men of rank who lurk in the Republic’s red
carpeted offices, waiting to wedge themselves into contracts and then
steal through public procurements.”
29. He argued that the procurement did not comply with the
requirements of the Constitution; that the project was not provided for in
the national revenue and expenditure estimates of the relevant year as
required under Article 220(1) of the Constitution which should have been
subjected to public participation as required under Article 221(5) of the
Constitution; that the provision for the project in the Finance Act, 2013
could not cure the violations of the Constitution committed in 2012; that
there was no evidence that the process through which the project was
procured was fair, equitable, transparent, competitive and cost efficient as
required by Article 227(1) of the Constitution and the Act; and that the
process of procurement was shrouded in secrecy, a violation of Article 35
of the Constitution on access to information.

30. It was submitted that the project was “a 100% Kenyan funded
venture” and therefore subject to the standards and procedures laid out
for the procurement of goods and services by public entities in the
Constitution and the statutes; that in the procurement, the respondents
ousted the oversight role of Parliament under Articles 206, 214, 220, 221,
222, 223 and 227 of the Constitution as the loan funding the project
should have been paid into the Consolidated Fund and Parliament should
have approved the expenditure through the national budget or in an
Appropriations Act and the loan could therefore not be used under the law.
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31. It was submitted that the single sourcing of CRBC violated Section 2 of
the Act; that the interests of CRBC were put above those of ordinary
Kenyans in violation of Section 6(1) and 7(1) of the Act which requires the
provisions of the Act to prevail over obligations arising from any
agreement in the event of conflict; that the single sourcing also violated
Sections 29 of the Act as there was no open tendering and the conditions
for direct procurement under Section 74 of the Act were not met.

32. It was submitted that the argument by KRC that the contract was
exempt under Section 6(1) of the Act did hold as that section “applies to
give exemptions only when there is a signed negotiated agreement”;
that under that provision, any expenditure/procurement “can only
commence after the signing of the agreement, the SGR project is not
covered as its financing agreement was signed on May 11, 2014”; that the
procurement of the project purportedly executed under that provision
“before the signing of the finance agreement is null and void”; that in
order for Section 6 of the Act to apply, the financing or loan agreement
that ousts the Act should be in place prior to the procurement; that such
agreement is a condition precedent to the procurement because it is the
terms and conditions of the signed agreement that will apply in the
procurement process; that in this case there was no agreement or
negotiated loan or grant between the Government of Kenya and the
Government of China or Exim Bank when the contract for the construction
of the SGR was entered into in 2012; and that the financing agreement
which would have triggered the procurement under Section 6(1) of the Act
was signed between the Government of Kenya and Exim Bank on 11 th May
2014 “long after the contract had illegally been entered into.”.
Furthermore, it was argued, Section 6 of the Act does not apply where, as
here, the Government of Kenya contributes its own resources to the
procurement.

33. It was argued that Sections 6, 15, 17 and 25 of the Public Finance
Management Act were violated in that Parliamentary approval was not
sought through the budget process; and that Sections 10, 11, 12 of the
Public Officer Ethics Act which requires all public officers to respect the
rule of law were also violated. It was contended that the respondents did
not put in place measures to ensure value for money in undertaking the
project; failed to consider the financial capacity of CRBC and failed to
guard against conflict of interest; failed to undertake an independent
feasibility study; failed to establish the project’s market value through
competitive bidding; that the 1st, 2nd and 3rd respondents committed
outright fraud in the procurement by awarding the contract to CRBC at
highly inflated cost; and failed to procure locomotives and rolling stock
directly from equipment manufacturers. It was urged that there was no
regard to environmental considerations and the contract was entered into
before an environment impact assessment was released.

34. Regarding the complaint that the learned Judge erred in expunging

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from the record, the documents that had been presented by the
appellants as evidence in support of the petitions, Omtatah argued that in
addition to failing to heed Article 35 of the Constitution which recognizes
that every citizen has the right of access to information held by the State,
the learned Judge failed to appreciate that the documents in question had
been tabled before Parliamentary Committees that were investigating the
project and were not confidential; that the annexures expunged included a
report of Parliament which is part of public record; that bearing in mind
that the citizen is the highest authority, as all sovereign power belongs to
the people in accordance with Article 1 of the Constitution, the learned
Judge was wrong in stating that information could not be received from
whistleblowers.
35. It was urged that the learned Judge misconstrued Article 50(4) of the
Constitution and the Evidence Act and wrongly excluded the impugned
documents; that all the documents tendered in evidence were public
documents and that the appellants have a right to oversight the
operations of public entities such as the 1 st, 2nd and 3rd respondents; and
that the appellants were not under a duty to disclose the individual
identities of the whistle blowers who supplied the documents.
36. Miss. Tobit for the LSK identified fully with the arguments made by
Mr. Omtatah. She submitted that the procurement violated the provisions
of the Constitution; and that there was no open tender by KRC inviting
bids for the supply of the goods and services as required under Article 227
of the Constitution; and that the principles of public finance under Article
201 of the Constitution were not heeded. The decisions of the High Court
in Kenya Transport Association vs. Municipal Council of Mombasa
& anor and that of Erick Okeyo vs. The County Government of
Kisumu, Kisumu H. C. Petion No. 1 “A” of 2014 and the decision of
the Supreme Court of South Africa in Millennium Waste Management
(PTY) Limited vs. The Chairperson of the Tender Board, Limpopo
Province and 2 others were cited for the argument that the
procurement in this case was not done in a fair, equitable, transparent,
competitive and cost-effective manner as demanded by Article 227 of the
Constitution.

37. It was submitted that the unconstitutional and illegal procurement

cannot be defended by a twisted interpretation of Section 6(1) of the Act;
that it was conceded by the AG in an opinion given in the matter that
“government to government” agreement is not a method of procurement
and Article 227 must be observed; that in light of that concession, and on
the strength of the decision in Creaw & others vs. AG, Nairobi, H.C. P
No. 16 of 2011, it must be accepted that the procurement did not comply
with the law.
38. It was also submitted that in addition, Article 42 of the Constitution on
the right of every person to a clean and healthy environment, as well as
the Environment Management and Coordination Act were violated in that
an environment impact assessment was not undertaken; that the SGR
runs through a national park with irreversible and irreparable adverse

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environmental impact in the same way the East African Court of Justice
concluded in the case of African Network for Animal Welfare vs. The
Attorney General of United Republic of Tanzania and should have
been stopped.

39. It was urged that under Section 29 of the Act, there are two
alternative tendering processes which were not met; that under Section 89
of the Act, CRBC was not eligible and was precluded from entering into the
contract for the construction of the SGR having undertaken the feasibility
study.
40. Counsel also faulted the High Court for expunging documents
tendered as evidence; that in so ordering, the court violated the
appellants’ right to access to information under Article 35 of the
Constitution; that it was not demonstrated that the documents were false
and no witnesses were called to denounce them. Counsel urged the Court
to allow the appeals and set aside the judgment of the High Court.
41. Opposing the appeals Mr. Ngumbi for the AG and the PPOA
submitted that the appeals have been overtaken by events; that as the
project has long been completed and commissioned the appeal is moot
and an academic exercise; and that what is done cannot be undone.

42. It was submitted that neither the Constitution nor the Act were
violated in the procurement; that the appellants did not demonstrate any
breaches of the Constitution; that the learned Judge correctly found that
Parliament played its role in consideration of the project and enacted
provisions for a railway development levy through the Finance Act; and
that the claims of alleged violations of the Constitution were not given or
particularized. The case of Anarita Karimi Njeru vs. Attorney General
(1979) KLR 154 and that of Trusted Society of Human Rights
Alliance vs AG and 2 others [2012] eKLR were cited.
43. It was urged that the learned Judge correctly held that the Act was not
applicable to the project as it was funded by the Government of China
through Exim Bank; that under Section 6(1) thereof, contracts involving
negotiated grants or loans were excepted from the Act. It was urged that
the appellants failed to show how the project would adversely affect the
environment; that an environmental impact assessment of the project was
indeed undertaken; a feasibility study was done; and the National
Environment and Management Authority (NEMA) issued a licence; that the
study of the project was published in the Kenya Gazette and members of
the public invited to make representation or lodge complaints within 60
days but the appellants did not avail themselves of that opportunity; that
if there was any issue with that licence then NEMA’s decision to issue the
license should have been challenged as there is a clear procedure under
the Environment Management and Coordination Act for seeking redress. In
that regard the case of Speaker of The National Assembly vs
Karume, Civil Appl. No. Nai. 92 of 1992 for the proposition that where
there is a clear procedure prescribed by law for the redress of any

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particular grievance, such procedure should be strictly followed

44. On the expunged documents, counsel supported the decision by the

learned Judge arguing that the same had been illegally obtained and some
of the documents were privileged and confidential and could only have
been obtained through complicity of public servants acting in breach of
the Public Officers Ethics Act; and that illegally obtained documents could
not form the basis of the petitions. In that regard, reference was made to
the High Court decision in Baseline Architects Limited & 2 others vs
National Hospital Insurance Fund Board Management [2008] eKLR
and the Industrial court decision in Leland I. Selano vs.
Intercontinental Hotel [2013] eKLR. It was submitted that there is a
clear procedure for accessing public documents and the appellants did not
follow such procedure. A decision of the Supreme Court of Appeal of South
Africa in The Cape Metropolitan Council vs. Metro Inspection
Services Western Cape CC and another, Case No. 10 of 1999(2001)
ZASCA 56 was cited.

45. Furthermore, it was argued, it was incumbent upon the deponents of

the affidavits in support of the petitions to disclose in their affidavits their
sources of information as required under Order 19 rule 3 of the Civil
Procedure Rules, and this too, they failed to do.
46. Professor Mumma for KRC began by contending that these appeals
are a waste of judicial time; that it is common ground that the railway line
from Mombasa to Naivasha has since been completed and is fully
operational and the appeal is therefore moot and an academic exercise.
47. Turning to the grounds of appeal, he submitted that the learned Judge
correctly allowed the cross petition and ordered documents that had been
obtained in a clandestine manner and whose source was not disclosed to
be expunged; that many of the documents the appellants relied upon were
official documents comprising of commercial contracts, letters exchanged
between Government officers and diplomatic missions, a draft cabinet
memorandum, all of which were not public; that whereas Article 35 of the
Constitution gives every citizen a right to access information held by the
State, it does not permit “self-help” for citizens to obtain official
documents from public officers clandestinely; that in order for a court to
be satisfied as to the authenticity of documents relied upon, it is important
that the procedure for accessing public documents under Section 80 of the
Evidence Act is followed; and that to allow for production of clandestinely
obtained documents would breed a culture of illegality.

48. As to the contention that the documents were obtained from public
spirited and well intentioned “whistleblowers”, it was submitted that the
issue is not the motive with which civil servants may have handed over
official documents to the appellants, but rather the breach of the law and
breach of the employee’s duty to the employer under the Public Officers
Ethics Act, 2003 which bars public officers from using information acquired

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in connection with their duties for personal benefit or for the benefit of
others; and that such officers, described by the appellants as
whistleblowers, should have provided information to designated
enforcement authorities in accordance with the Witness Protection Act.
49. Referring to the English decision in Robert Technquiz & others vs.
Vivian Imerman, Case No. A2/2009/2133 [2010] EWCA Civ. 908,
among others, it was submitted that a petition supported by documents
obtained in breach of the law should not be recognized by a court; that the
documents in this case were procured in breach of KRC’s rights to privacy
under Article 31 of the Constitution and the admission of the documents
would offend Article 50(4) of the Constitution which provides that evidence
obtained in a manner that violates any right or fundamental freedom in
the Bill of Rights shall be excluded.

50. Regarding the claims by the appellants that the project should have
been halted as it infringes on the appellants’ right to clean and healthy
environment under Articles 42 and 69 of the Constitution, it was submitted
that in compliance with the requirements of the Environmental
Management and Coordination Act, 1999, an environmental impact
assessment study was undertaken to assess the project from the
perspective of environmental impact and sustainability and what was
questioned was the adequacy of the report; and that National Environment
and Management Authority (NEMA) approved the project after conducting
public hearings in all counties where the railway was to run through.
51. As to the contention that Article 227 of the Constitution, the Act, and
the Public Finance Management Act were breached, it was submitted that
Article 227 of the Constitution does not, itself, provide the complete
framework to govern procurements; that implementing legislation is
envisaged; that competition is only one of many factors; that the Act
provides for several methods of procurement, including procurements in
instances of negotiated grants or loans under Section 6(1), as in the
present case, and the learned Judge was right in holding that the project
was lawfully procured. It was submitted that the project was deliberated
upon by the National Assembly following which the Customs and Excise
Act was amended through the Finance Act, 2013 by making provision for
Railway Development Levy to fund the construction of the SGR.

52. Counsel argued that although the appellants alleged breaches of

constitutional provisions and fundamental rights, they did not demonstrate
in what way the alleged breaches were committed; that the issues the
appellants raised could have been adequately addressed by pursuing
remedies provided in legislation; that there were parallel investigations in
connection with the project by Parliament and the Ethics and Anti-
Corruption Commission (EACC) to which the appellants should have
availed themselves, and the court was right in taking the view that it
should defer to those institutions. Reference was made to the High Court
case of Stephen Nyarangi Onsomu & another vs. George Magoha &
7 others [2014] eKLR in which the decision of Harrikisson vs.
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Attorney General of Trinidad and Tobago [1980] AC 265 was cited

for the proposition that constitutional petitions should not be used as a
substitute for normal procedures for invoking judicial control of
administrative action.
53. Mr. Kiragu Kimani for CRBC also submitted that to the extent that
the appellants’ petitions attacked the process and award of the contract
for construction of the SGR, the appeal is moot as the project has long
since been completed and commissioned.

54. On the grounds of appeal, Mr. Kimani submitted that although the
appellant alleged violations of the Constitution and the law in their
respective petitions, there was no evidence to support those claims. That
contrary to claims that Articles 42 and 69(1) of the Constitution were
breached, an environmental impact assessment was indeed conducted
before the commencement of the project and the report in that regard
produced before the High Court.
55. Counsel submitted that under Article 227(2) of the Constitution,
Parliament is mandated to enact legislation to provide a framework within
which policies relating to procurement and asset disposal shall be
implemented; that the relevant legislation in that regard is the Act; that
under Section 6 of the Act, Parliament recognized that where a project is
financed through negotiated loans or grants conflicts could arise between
the conditions of the grant or loan and the provisions of the Act; that the
terms and conditions of financing in this case between the Government of
China and the Government of Kenya made it a condition that the contract
be awarded to CRBC in which case Section 6(1) of the Act applies.
Reference was made to numerous decisions of the Public Procurement
Administrative Review Board, including the case of Power Technics Ltd
vs. Kenya Power & Lighting Company Ltd, App. No. 3 of 2010, that
have given effect to Section 6(1) of the Act by holding that, that provision
excluded negotiated grants and loans from the application of the Act.

56. It was submitted that even if the Act was to be applied, Section 87
thereof was not violated as a person who undertakes a feasibility study of
a project, with a view to ascertaining viability, can nonetheless be
contracted to implement the project if acceptable to the Government; and
that an arrangement with a foreign government, as is the case here, is
permissible under Section 6 of the Act. In any case, the procurement of
the project in this case was not done by way of request for proposals
under Section 76 of the Act and consequently Section 87 of the Act is not
applicable. Furthermore, the contention that Section 87 was breached
should be disregarded as it is not one of the grounds contained in the
memorandum of appeal.
57. Regarding the order to expunge documents, Mr. Kimani submitted
that the learned Judge was right; that although the right to access
information from the State is enshrined in Article 35 of the Constitution,
the appellants should have followed the correct procedure and requested

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for the information and should not be allowed to benefit from an illegality
in the manner in which they got the information
58. In reply Omtatah and Gisebe urged that the Constitution is supreme;
that although the project may have been completed, it remains open to
the Court, under Article 2(4) of the Constitution, to declare that its
procurement contravened the Constitution; that even though other organs
like the EACC and Parliament may have been investigating the project, the
jurisdiction of the court remains intact and cannot be ousted.

Analysis and determination

59. We have considered the appeals and the submissions. Our mandate
on a first appeal as set out in Rule 29(1) of the Court of Appeal Rules
requires us to reappraise the evidence and to draw our own conclusions. In
Peters vs. Sunday Post Limited [1958] EA 424, the predecessor of
this Court, the Court of Appeal for Eastern Africa, stated that:
“Whilst an appellate court has jurisdiction to review
the evidence to determine whether the conclusions of
the trial judge should stand, this jurisdiction is
exercised with caution; if there is no evidence to
support a particular conclusion, or if it is shown that
the trial judge has failed to appreciate the weight or
bearing of circumstances admitted or proved, or has
plainly gone wrong, the appellate court will not
hesitate so to decide.”
60. This Court is therefore required, as was also stated by the Court in
Selle and another vs. Associated Motor Boat Company Limited & 2
others [1968] EA 123 to “reconsider the evidence, evaluate it itself
and draw its own conclusion”. With that in mind, the issues for
consideration, to restate, are: whether the appeal is moot; whether the
learned Judge erred in expunging documents in support of the petitions;
whether the learned Judge erred in concluding that the procurement did
not contravene the Constitution of Kenya; and whether the learned Judge
erred in holding that the Act did not apply to the procurement.

61. On the issue of mootness, it was contended, as already noted, that as

the SGR project is substantially completed and commissioned and that it is
futile, an academic exercise and waste of judicial resources to pursue this
appeal. The appellants on the other hand maintain that notwithstanding
the completion and commissioning of the project, it remains open for the
court to determine and declare that its procurement violated the
Constitution and the law.
62. The objective for which the appellants instituted the petitions are
appreciable from the prayers in the petitions. Omtatah and Gisebe prayed
for declarations that: there was no valid contract between the KRC and
CRBC; that the 1st to 3rd respondents failed to safeguard public interest and
common good in failing to ensure the procurement accorded with the law;

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that the Government should not conduct business with CRBC; that the
railway should be procured through competitive bidding; orders of
injunction to restrain the 1st to 3rd respondents from transacting with or
continuing with the contract with CRBC; mandatory orders to compel the
AG to direct the Police to criminally investigate public officers including
officials of the 1st to 3rd respondents who were involved in the fraudulent
procurement process as well as officers of CRBC.

63. The LSK on its part, sought declarations that KRC as a procuring entity
is subject to Articles 10, 42, 69, 70 201 and 227 of the Constitution; that
the award of the contract for the supply and installation of facilities and
diesel powered engines which are outdated and pollute the environment
violates Articles 42 and 69 of the Constitution; that the award of the
contract for the supply and installation of facilities, locomotives and rolling
stock for the Mombasa Nairobi standard gauge railway by KRC to CRBC
violates Articles 10, 201 and 207 of the Constitution; that the purported
‘christening’ of the contract as a government to government contract is
unlawful; and an order of Certiorari to quash the award of the contract.
64. In Black’s Law Dictionary, 8th edition, a “moot case” is defined as “a
matter in which a controversy no longer exists; a case that presents only
an abstract question that does not arise from existing facts or rights”, and
as a verb, as meaning “to render a question as of no practical
significance”.
65. In Daniel Kaminja & 3 others (Suing as Westland
Environmental Caretaker Group) vs. County Government of
Nairobi [2019] eKLR, Mativo, J. stated that:
“A matter is moot if further legal proceedings with
regard to it can have no effect, or events have placed it
beyond the reach of the law. Thereby the matter has
been deprived of practical significance or rendered
purely academic. Mootness arises when there is no
longer an actual controversy between the parties to a
court case, and any ruling by the court would have no
actual, practical impact.”

And that,
“No court of law will knowingly act in vain. The general
attitude of courts of law is that they are loathe in
making pronouncements on academic or hypothetical
issues as it does not serve any useful purpose. A suit is
academic where it is merely theoretical, makes empty
sound and of no practical utilitarian value to the
plaintiff even if judgment is given in his favour. A suit is
academic if it is not related to practical situations of
human nature and humanity.”
66. In National Assembly of Kenya & another vs. Institute for

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Social Accountability & 6 others [2017] eKLR, this Court

characterized the doctrine of ‘mootness’ as complex; it cautioned that the
doctrine should not be applied mechanistically in every factual situation;
and that there is no sharp distinction between moot and live controversies.
The Court expressed that the doctrine of mootness is not a magic formula
that can automatically dissuade the court in resolving a case; and that the
court will decide cases, otherwise moot, for example, if there is a grave
violation of the Constitution. The Court concluded:
“… it is clear that the mootness doctrine, is not an
abstract doctrine. Rather, it is a functional doctrine
founded mainly on principles of judicial economy and
functional competence of the courts and the integrity
of the judicial system. In the application of the doctrine
to the wide ranging and varying factual situations, the
court will inevitably consider the extent to which the
doctrine advances the underlying principles, the
certainty and development of the law particularly the
Constitution law and the public interest.”

67. Given those parameters, is this appeal moot" It is common knowledge

that the Mombasa-Naivasha segment of the SGR project is built and
completed. Undoubtedly, some of the reliefs that the appellants sought
before the High Court are no longer available as the contract has been
executed. At the time the petitions were presented, construction was yet
to commence. That is the reason the appellants presented applications for
interim conservatory orders contemporaneously with the petitions in the
hope that construction would have been stopped. However, the parties
opted to forego the applications for interim conservatory orders and to
focus on hearing the substantive petitions. In doing so, the parties were
alive to the fact that execution of the contract would have an impact on
the petitions. Indeed, on 1st July 2014, when taking directions before the
learned Judge for the substantive hearing of the petitions, Omtatah is
recorded as having expressed his apprehension that delay in the disposal
of the matter would render the litigation futile. In his words, “…the
situation should be arrested and stop the construction. The ground is
shifting and we have spent 150 days without any progress. The cost of
mobilizing construction is huge and I do not want to litigate in vain.”

68. In our view, while the reliefs in the nature of orders of injunctions to
restrain the implementation of the impugned contract or to quash the
award of the contract are no longer within reach, the issues relating to the
constitutionality of the procurement; the interpretation and applicability of
Section 6 of the Act; and the question whether annexures to the petitions
were properly expunged, remain for consideration by this Court. Being of
that view, we will first consider the question whether the learned Judge
erred in expunging documents tendered in support of the petitions.
69. In its cross petition dated 4th July 2014, KRC averred that the
documents the appellants sought to rely upon in support of their petitions
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“are illegally obtained documents whose origin, source, legitimacy and/or

authenticity has not been disclosed and/or explained by the deponents
and as such cannot be relied upon” by the court; that “the said documents
are produced…contrary to the express requirements of Article 31 and 35
of the Constitution and Section 80 of the Evidence Act, cap 80 of the Laws
of Kenya and ought to be expunged from the records.” KRC contended
that reliance on the said documents violated its constitutional rights to fair
administrative action and fair hearing.
70. In a replying affidavit to the cross petition, Apollo Mboya deposed that
“all the documents that the Law Society of Kenya has relied on have been
lawfully obtained” and that the same were submitted to the LSK “by
conscientious citizens in lawful possession of the said documents.”; that
KRC had not shown that the documents were false or called the makers to
denounce or repudiate them; that no criminal proceedings had been
commenced by the makers of the documents alleging theft of the
documents; that citizens have rights of access to information under Article
35 of the Constitution and all state organs are enjoined to be transparent
and accountable and the prayer to expunge the documents was a smoke
screen to distract the court from addressing the real controversy.

71. In his replying affidavit to the cross petition, Omtatah deponed that
there was no basis for the contention that the documents were illegally
obtained as no complaints had been made to law enforcement agencies
that the documents were sourced in breach of the law; that the burden lay
with KRC to demonstrate that the documents were illegally obtained; that
the documents were in wide circulation before the appellants received
them from whistle blowers and “the decision to protect whistleblowers
cannot be and is not fatal to the petition” and that no reason was given by
KRC “why the whistleblower evidence herein should not be admitted.”;
that having regard to the public interest involved, the court should have
exercised its discretion and admitted the documents; that as stated by
Justice Crompton in R vs. Leatham (1861) 8 Cox CCC 498,
“it matters not how you get it, if you steal it even, it would be
admissible in evidence.”; provided the evidence is relevant, it
is admissible; that the documents were readily available as
they were presented during the proceedings of the
Committees of Parliament which were open to the public.

72. In allowing the cross petition and ordering the documents to be

expunged, the learned Judge expressed that if litigants choose to use
clandestine means to procure information, such actions would heavily
compromise the need for Article 35 of the Constitution and would violate
the other parties’ fundamental right to privacy under Article 31 of the
Constitution; that had the appellants followed lawful channels and
procedures available in law in obtaining the information, the question of
violation of the respondents’ right to privacy would not have arisen. The
learned Judge went on to say that the procedure for introducing public
documents into court as evidence under Section 80 of the Evidence Act
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guarantees the authenticity and integrity of documents relied upon in the

court; and further that the documents in question did not meet the criteria
of admissibility set in Section 35 of the Evidence Act; that to allow the
documents in question to remain on record would be detrimental to the
administration of justice; that irrespective of whether the respondents had
made a complaint to law enforcement agencies regarding theft of
documents, the appellants could not rely on information obtained in
unclear circumstances; and that while a citizen is entitled to information
held by the State, there is no need or room to use irregular methods in
obtaining information.

73.We have considered the rival arguments. This issue brings to the fore
the tension between the need for the court to be able to consider and
have access to evidence which would enable it to fairly and effectively
determine a dispute on the one hand and the need to avoid irregularity or
impropriety in the way in which evidence is obtained or secured. In an
article titled, The Court’s Discretion to Exclude Evidence in Civil
Case and Emerging Implications in the Criminal Sphere (2016) 28
SAcLJ, Professor Jeffrey Pinsler, SC put it this way: “…the court must try to
give effect to two conflicting public interests: the need for the court to
have access to the evidence in the interest of fair and just adjudication
and the avoidance of misconduct in the manner of securing evidence. The
outcome of the balancing operation depends on the circumstances.”
74. As noted, the documents that the learned Judge ordered to be
expunged from the record were produced as annexures to the affidavits
sworn by Omtatah and Apollo Mboya in support of the petitions. Those
documents comprised of copies of numerous letters exchanged between
the Ministry of Transport and CRBC; correspondence between CRBC and
the then Prime Minister’s office; memorandum of understanding between
Ministry of Transport and CRBC dated 12th August 2009; correspondence
between the Chinese Embassy and Ministry of Transport; correspondence
between the Office of the then Deputy Prime Minister and the
Ambassador, Embassy of the People’s Republic of China; the feasibility
study relating to the project; correspondence between the Ministry of
Transport and KRC; correspondence between the Attorney General’s Office
and the Ministry of Transport; correspondence between KRC and Public
Procurement and Oversight Authority; correspondence between KRC and
CRBC; correspondence between Public Procurement and Oversight
Authority and the Attorney General’s office; the commercial contracts
between the KRC and CRBC for the construction of the railway and for
supply and installation of facilities, locomotives and rolling stock;
correspondence between the Office of the Deputy President and the
Attorney General’s Office and cabinet memorandum.

75. The sources of those documents were not disclosed in those affidavits
and neither were such of those documents that consisted of public
documents, certified. It was upon the filing of the cross petition seeking
orders for those documents to be expunged that the appellants disclosed

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that the documents were supplied by “conscientious citizens” and

“whistleblowers”.
76. Part IV of the Evidence Act deals with public documents which are
defined under Section 79(1)(a)(iii) to include documents forming the acts
or records of acts of public officers. For purposes of authenticity, Section
80 of the Evidence Act, provides that every public officer having custody of
a public document which any person has a right to inspect shall give the
person on demand a copy of it on payment of the legal fees therefor,
together with a certificate written at the foot of such copy that it is a true
copy of such document or part thereof, as the case may be, and such
certificate shall be dated and subscribed by such officer with his name and
his official title, and shall be sealed whenever such officer is authorized by
law to make use of a seal, and such copies so certified shall be called
certified copies. Section 80(2) of the Evidence Act provides that any officer
who by ordinary course of official duty is authorized to deliver copies of
public documents shall be deemed to have custody of such documents
within the meaning of that section. Section 81 of the Evidence Act on proof
of certified copies provides that certified copies of public documents may
be produced in proof of the contents of the documents or part of the
documents of which they purport to be copies.

77. The issue of admissibility of illegally acquired evidence was

considered by the Court in the case of Nicholas Randa Owano Ombija
vs. Judges and Magistrates Vetting Board [2015] eKLR where the
Court had this to say:
“What does the law state regarding illegally obtained
evidence" In the case of Karuma, Son of Kaniu vs. The
Queen [1955] AC 197 which was an appeal to the Privy
Council on a criminal conviction anchored on an
illegally procured evidence, the Privy Council held that
“the test to be applied both in civil and in criminal
cases in considering whether evidence is admissible is
whether it is relevant to the matters in issue. If it is, it
is admissible and the court is not concerned with how it
was obtained” In that case the Privy Council decision
was supported by the decision in Reg. vs. Leatham
(1861) 8 Cox C.C.C 498 which was referred to in the
judgment. In Reg. vs. Leatham (supra), it was said “it
matters not how you get it if you steal it even, it would
be admissible in evidence” In Olmstead vs. United
States (1928) 277 US 438 the Supreme Court of the
United States of America opined that “the common law
did not reject relevant evidence on the ground that it
had been obtained illegally.” In Helliwell vs. Piggot-
Sims [1980] FSR 356 it was held that “so far as civil
cases are concerned, it seems to me that the judge has
no discretion. The evidence is relevant and admissible.
The judge cannot refuse it on the ground that it may
have been unlawfully obtained in the beginning.”
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There is no doubt that the documents relating to the

appellant’s vetting of 10th September 2012 are relevant
as his case hinges on them. Common law principles
show that evidence, if relevant, is admissible even if it
has been illegally obtained. The case of Karume vs. The
Queen though a criminal case shows that common law
principles developed in criminal law cases apply in civil
cases.”
78. That decision supports the argument that the overriding consideration
when considering whether illegally obtained evidence is admissible is the
relevance of such evidence. It has been followed, for example, in John
Muriithi & 8 others vs. Registered Trustees of Sisters of Mercy
(Kenya)t/a “The Mater Misericordiae Hospital & another [2018]
eKLR where the ELRC (Wasilwa, J.) pronounced that, “in Kenya, illegally
obtained evidence is admissible so long as it is relevant to the fact in issue
or its admission would not affect the fairness of the trial”, and after
making reference to Article 50(4) of the Constitution concluded, on the
facts of that case, that:

“In determining whether to allow evidence being

sought to be expunged, I am guided by the fact that
the primary duty of this Court is to do justice. If justice
will be done using available documents and evidence
not obtained in breach of the Constitution and the law
then this Court would admit such evidence in order to
have the right resources before it to enable
determination of the issues in a just matter.”
79. This Court had occasion again to consider the matter of admissibility
of illegally obtained evidence in the case of United Airlines Limited vs.
Kenya Commercial Bank Limited [2017] eKLR where the Court
rejected the contention that illegally obtained evidence is admissible in
criminal law as long as it was relevant. The Court stated that the
Constitution of Kenya 2010 had changed that position and that such
evidence is not admissible by dint of Article 50(4) of the Constitution which
provides:
“50 (4) Evidence obtained in a manner that violates
any right or fundamental freedom in the Bill of Rights
shall be excluded if the admission of that evidence
would render the trial unfair, or would otherwise be
detrimental to the administration of justice…”

In that case, the Court stated:

“As submitted by learned counsel for the respondent,
illegally obtained evidence was for a long time
admissible in criminal law as long as it was relevant

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(see Kuruma Son of Kaniu vs R [1955] 1 All ER 236.

However, the Constitution of Kenya 2010 has now
shifted the paradigm and Article 50(4) of the
Constitution now disallows such evidence…
…the Kuruma case (supra) is therefore no longer good
law. This article nonetheless applies to criminal law and
not civil law, as it succinctly refers to “trial” as
opposed to suit, and also relate to rights of an accused
person. Admissibility of documentary evidence is
explicitly provided for under the Evidence Act.”
80. The interpretation given by the Court in that case that Article 50(4) of
the Constitution applies only to criminal law and not civil law is, with
respect, doubtful. Article 50 of the Constitution deals generally with “fair
hearing”. In Article 50(1) for instance, reference is made to “every person”
as having the right to a fair hearing. This is in contrast to Article 50(2)
which is specific “every accused person”. In our view, under Article 50(4) if
a court determines that admission of evidence obtained in a manner that
violates any right or fundamental freedom in the Bill of Rights would be
detrimental to the administration of justice, the court may reject it
irrespective of whether it is in connection with a civil or criminal trial. This
view accords, we believe, with the Supreme Court decision in Njonjo Mue
& Another vs. Chairperson of Independent Electoral and
Boundaries Commission & 3 Others [2017] eKLR.

81. In the last-mentioned case, the Supreme Court of Kenya was invited
to expunge certain documents in a presidential election petition. In its
ruling, from which it is necessary to quote in extenso, the apex Court had
this to say:
“Having found that there are procedures provided for
under the law through which any person who seeks to
access information should follow, the question that
follows is; what happens where a person ‘unlawfully’ or
‘improperly’ obtains any information held by an entity"
Can a court of law admit such evidence…We also
recognize that information held by the State or State
organs, unless for very exceptional circumstances,
ought to be freely shared with the public. However,
such information should flow from the custodian of
such information to the recipients in a manner
recognized under the law without undue restriction to
access of any such information… Further, a duty has
also been imposed upon the citizen(s) to follow the
prescribed procedure whenever they require access to
any such information. This duty cannot be abrogated or
derogated from, as any such derogation would lead to a
breach and/or violation of the fundamental principles of
freedom of access to information provided under the
Constitution and the constituting provisions of the law.

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It is a two way channel where the right has to be

balanced with the obligation to follow due process…"
And later in the same case went on to say:

“The Petitioners, using the above test, do not show

how they were able to obtain the internal memos
showing communication between employees of the 2 nd
Respondent. Further, it has been alleged that these
memos have only been shown in part, and taken out of
context to advance the Petitioners’ case against the 1 st
and 2nd Respondents, and to an extent, the 3rd
Respondent. No serious answer has been given to that
contention. The use of such information before the
Court, accessed without following the requisite
procedures, not only renders it inadmissible but also
impacts on the probative value of such information.
This is the point of divergence between the instant
matter, and the case of Nicholas Randa Owano Ombija
v. Judges and Magistrates Vetting Board (supra). In the
present instance, there has been a clear violation of
laid out procedures of law attributable to access of
information, and violation of the rights of privacy and
protection of property that the 2 nd Respondent is
guaranteed under the Constitution and Section 27 of
the IEBC Act. This is because the limitation imposed by
both Article 50(4) and Section 27 aforesaid squarely
apply to the matter before us.”
82. Although that decision was rendered in the context of a presidential
election petition, it is clear from that decision that by dint of Article 50(4)
of the Constitution, the adage, “it matters not how you get it if you steal it
even, it would be admissible in evidence” is not representative of the state
of the law in our legal system, irrespective of whether the dispute is of a
criminal or civil nature.
83. We reiterate that the appellants claimed to have been supplied with
the contentious documents by “conscientious citizens” and
“whistleblowers”. Based on the foregoing, the appellants ought to have
requested the concerned Government Departments to supply them with
the information they required, and to which they were entitled to receive
in accordance with Article 35 of the Constitution. It was not necessary for
the appellants to resort to unorthodox or undisclosed means to obtain
public documents. If they deemed the documents were relevant (as
indeed they were) then, they ought to have invoked the laid down
procedure of production of documents.

84. We therefore agree with the learned Judge that it would be

detrimental to the administration of justice and against the principle
underlying Article 50(4) of the Constitution to in effect countenance illicit

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actions by admission of irregularly obtained documents. However well

intentioned “conscientious citizens” or “whistleblowers” might be in
checking public officers, there can be no justification, as pointed out by
the Supreme Court, for not following proper procedures in the
procurement of evidence. We do not have any basis for interfering with
the decision of the High Court to expunge the documents in question.
85. We will consider the two remaining issues together. These are
whether the procurement violated Article 227 of the Constitution and
statutory law and whether the procurement in this instance was exempt
from the provisions of the Act by reason of Section 6(1) thereof. Article
227 (1) of the Constitution of Kenya provides that:

“When a State organ or any other public entity

contracts for goods or services, it shall do so in
accordance with a system that is fair, equitable,
transparent, competitive and cost-effective.”
86. As Musinga, J.A observed in the case of Al Ghurair Printing and
Publishing LLC vs. Coalition for Reforms and Democracy & 2
others [2017] eKLR in relation to Article 227:
“The mode of procurement of public goods and
services has thus been given constitutional
significance. That demonstrates the importance
Kenyans attached to public procurement, perhaps out
of the realization that huge amounts of public
resources are spent in procuring goods and services.”
87. The rationale behind Article 227 was also captured by the High Court
in the case of Republic vs. Public Procurement Administrative
Review Board & another Ex parte SGS Kenya Limited [2017] eKLR
where Mativo, J. had this to say:
“In our society, tendering plays a vital role in the
delivery of goods and services. Large sums of public
money are poured into the process and public bodies
wield massive public power when choosing to award a
tender. It is for this reason that the Constitution
obliges organs of the state to ensure that a
procurement process is fair, equitable, transparent,
competitive and cost-effective. Where the procurement
process is shown not to be so, courts have the power to
intervene.”

88. Also, in Republic vs. Independent Electoral and Boundaries

Commission & 3 Others ex parte Coalition for Reform and
Democracy Misc. Application No 637 of 2016, the High Court
expressed that:
“Article 227 of the Constitution provided the minimum
threshold when it comes to public procurement and
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asset disposal. Therefore, any procurement, before

considering the requirements in any legislation, rules
and regulations, had to meet the constitutional
threshold of fairness, equity, transparency,
competitiveness and cost-effectiveness. Any other
stipulation in an enactment or in the tender document
could only be secondary to what the Constitution
dictated….”
89. In Independent Electoral and Boundaries Commission (IEBC)
vs. National Super Alliance (NASA) Kenya & 6 others [2017] eKLR
this Court stressed that:
“…all procurement entities must at all times remain
accountable and transparent in their operations and
must adhere to the values in Articles 10, 20, 227 and
232 of the Constitution as incorporated in Section 3 of
the Public Procurement and Asset Disposal Act.”
90. Article 227 of the Constitution should be interpreted in a manner that
promotes its purposes, values and principles as Article 259 demands and
also holistically. In Republic vs. Kenya National Highways Authority
and 2 others, Ex Parte Amica Business Solutions Limited [2016]
eKLR this Court stated:

“The provisions of Articles 10 and 227 of the

Constitution are not among those non-derogable rights
that cannot be limited. It is our view that they can be
interpreted in a purposive manner that would take into
account the circumstances and the justice of the case,
without necessarily adhering to the textual
interpretation. This does not mean that they should be
disregarded at will. Far from that, all constitutional
safeguards are meant to be observed particularly when
they are meant to protect citizens from flagrant
excesses by the Executive and those other organs that
are charged with the responsibility to offer services to
the people.”
91. In the matter of Kenya National Commission on Human
Rights, Supreme Court Advisory Opinion Reference No. 1 of [2012]
eKLR the Supreme Court explained the meaning of a holistic
interpretation of the Constitution thus:
“It must mean interpreting the Constitution in context.
It is contextual analysis of a constitutional provision
reading it alongside and against other provisions so as
to maintain a rational explication of what the
Constitution must be taken to mean in the light of its
history, of issues in dispute and of the prevailing
circumstances.”

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92. Article 227(1) does not stand alone. Article 227 (2) goes on to say:

“An Act of Parliament shall prescribe a framework

within which policies relating to procurement and asset
disposal shall be implemented….”
93. Under that provision, it was left to Parliament to give effect to the
principles in Article 227(1) through enactment of legislation. The statute
enacted by Parliament pursuant to that provision is the Public
Procurement and Disposal Act, Act No. 33 of 2015 which, in its preamble
stipulates that it is “An Act of Parliament to give effect to Article 227 of the
Constitution; to provide procedures for efficient public procurement and
for assets disposal by public entities; and for connected purposes.” That
Act commenced on 7th January 2016, well after the procurement of the
SGR had been undertaken. The Act (the Public Procurement and Disposal
Act, 2005) which was repealed by Section 182 of the 2015 statute, was
therefore the applicable statute by dint of the transitional provisions to the
effect that “procurement proceedings commenced before the
commencement date of this Act shall be continued in accordance with the
law applicable before the commencement date of this Act”
94. Although the Act recognized alternative procurement methods, the
default procurement procedure under Section 29 was open tendering.
Section 29(1) of the Act provided that for each procurement, the procuring
entity shall use open tendering. Other procurement procedures recognized
under the Act that were subject to prescribed safeguards include
restricted tendering; direct procurement; request for proposals; request
for quotations; and procedure for low value procurements, among others.
As regards restricted tendering or direct tendering, the safeguards under
Section 29 (3) of the Act include obtaining the written approval of the
procuring entity’s tendering committee and recording in writing the
reasons for using the alternative procurement procedure.

95. It is not the appellants’ case, as we understand it, that the provision of
alternative procurement procedures in the Act negates the requirements
under Article 227 of the Constitution to the effect that procurement by
public entities should accord with a system “that is fair, equitable,
transparent, competitive and cost effect.”
In other words, the absence of “competition” in direct procurement in our
view does not, in itself, render that procedure unconstitutional. We are
therefore not persuaded, as contended by the appellants, that because
the procurement of the SGR was not taken through a competitive bidding
process, that in itself renders it unconstitutional.
96. Indeed, Sections 6 and 7 of the Act, contained provisions with respect
to conflict between requirements under the Act with any obligations of the
Country arising from treaties or agreements. Parliament recognized that
there may be instances when conditions imposed in instances of
negotiated grants or loans or by donor funds may conflict with the
provisions of the Act. In that case, such conditions would prevail thereby
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removing procurement from the purview of the Act.

97. Sections 6 and 7 of the Act (the Public Procurement and Disposal Act
2005) provided as follows:
“6. (1) Where any provision of this Act conflicts with
any obligations of the Republic of Kenya arising from a
treaty or other agreement to which Kenya is a party,
this Act shall prevail except in instances of negotiated
grants or loans.
7. (1) If there is a conflict between this Act, the
regulations or any directions of the Authority and a
condition imposed by the donor of funds, the condition
shall prevail with respect to a procurement that uses
those funds and no others.
(2) This section does not apply if the donor of funds is
a public entity.”
98. In Revital Health (EPZ) Limited vs Public Procurement
Oversight Authority [2015] eKLR the High Court at Mombasa
(Mureithi J.) expressed that:
“Section 6 (1) of the PPDA ousts the provisions of the
Act in cases of negotiated grants or loans where there
is a conflict between the Act and any obligations of the
Republic of Kenya arising from a treaty or other
agreement to which Kenya is a party. It does not follow
that all procurement conducted outside the PPDA is
unconstitutional. Constitutionality of a procurement
must be assessed on the touchstone of Article 227 of
the Constitution, which provides that procurement by
state organ or other public entity accords to ‘a system
that is fair, equitable, transparent, competitive and
cost-effective.

20. Procurement can still meet the requirements of the

Article 227 even where done pursuant to obligations
under a treaty or other agreement or other procedure
consistent with those requirements. The Constitution
does not decree that public procurement may only be
made under the provisions of the Act of Parliament
enacted under article 227 (2) of the Constitution. The
Constitution only empowers parliament to make such
law as will guide the realization of the principles of
public procurement set out in Article 227 (1) of the
Constitution.”
99. As already indicated, the appellants contend that the procurement of
the SGR violated the provisions of the Act. The respondents on the other
hand contend that the Act did not apply on account of the conditions in
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negotiated loan on procurement that conflicted with the requirements of

the Act and that Section 6(1) of the Act therefore applies. In resolving that
controversy, the learned Judge stated:
“As is evident, by virtue of the above provision i.e.
Section 6(1) of the Public Procurement and Disposal Act
the provisions of the said Act would not apply in regard
to the contested procurement and I therefore agree
with Mr. Kimani that Section 6(1) is clear that the Act
does not apply in instances of negotiated loan or
grants, because the SGR Project is being financed by a
loan from the government of China through Exim Bank
of China. This fact is undisputed and being so it follows
that the terms and conditions of the loan as negotiated
would be applicable in the event there is a conflict with
the Public Procurement and Disposal Act.”

100. The learned Judge found that the conditions that the Government of
Kenya had to satisfy before the Chinese Government could finance the
project included the requirement that the mode of procurement had to be
in line with the conditions made by Exim Bank, namely that CRBC had to
be awarded the contract and consequently the Act “does not apply to the
issues at hand.” The question therefore is whether that conclusion was
well founded.
101. The facts, as they emerge from the material before the High Court
show that on 12th August 2009, the Ministry of Transport of the
Government of Kenya (MoT) entered into a Memorandum of
Understanding and Cooperation (MoU) with CRBC on the basis of which
CRBC was to undertake, at its cost, a study on the feasibility of a railway
system between Mombasa and Malaba; to consider the technical details of
the project; the financing required and the manner in which the project
would be implemented. The MoU provided that if MoT approved the
feasibility study, CRBC would carry out the preliminary design of the
project with help from MoT and that the design “shall include the technical
and financial aspects of the project as well as the terms and conditions of
the EPC contract after consultation with MoT”; that after completion and
agreement of the design, both parties “shall appoint their own committee
to start the negotiation immediately on the commercial contract of the
project on the basis of the EPC” and that, “an EPC commercial contract for
the project will be duly signed by both parties.” With regard to financing,
the MoU further stipulated that, “after signing of the commercial contract
of the project, CRBC shall try its best to look for the sources for the
funding of the project.” [emphasis added]

102. It is clear from the MoU therefore that from conception of the
project, it was understood by both the MoT and CRBC that should the
feasibility study be approved and decision taken to go ahead with the
implementation of the project, it would be on the basis that CRBC would
be contracted to execute or implement it. CRBC undertook to carry out the
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feasibility study in respect of the project; to undertake the preliminary

design of the project; and source for the funding of the project upon MoT
and CRBC signing “an EPC commercial contract for the project”.
103. The funding or financing options floated by CRBC at the time
included, direct investment from CRBC; and/or buyer’s credit from the
Kenya Government; and/or seller’s credit from CRBC; and/or direct
investment from other financial institutions; and/ or other sources
identified in future. Consequently, irrespective of how the project was
going to be funded, the implementing entity would be CRBC. In other
words, whereas there was no clarity at that time how the project would be
financed, it was crystal clear that once funding was secured, (however that
would be achieved) the project would be executed by CRBC. The
procurement of CRBC was therefore a foregone conclusion from the
outset. The question of the procurement procedure being dictated by
subsequent financing arrangement would therefore not arise.

104. The Managing Director of KRC, Mr. A.K. Maina, deponed in his
affidavit that the feasibility study and preliminary design report were
submitted to the Government of Kenya in February 2011; and that
following discussions between KRC and CRBC, KRC approved the same on
26th June 2012. With regard to financing, the feasibility study had this:
“The project proprietor is the Government of Kenya,
who initiates the construction through the EPC model.
China Road & Bridge Corporation (CRBC) will be the
main contractor, who in charge of project engineering,
procurement and construction-EPC. CRBC will assist the
Government of Kenya to acquire the project
investment.”
105. Mr. Maina went on to depone that following the approval of the
feasibility study, negotiations then followed between negotiating teams
representing both parties; that on 11 th July 2012 and 4th October 2012,
contracts were signed, with approval by MoT and the AG’s office, between
KRC and CRBC for the civil works and for facilities, locomotive and rolling
stock respectively; that, “the commercial contracts are part of the process
towards the negotiations for funding for the project from the People’s
Republic of China and will become effective only after executing the
financial agreement”; that the Government of Kenya has entered into a
financing agreement with the Exim Bank of China (within a Government to
Government framework directed by the Cabinet) for a concessional and a
commercial loan to support the project” and that CRBC “is to be engaged
as the Engineering Procurement and Construction Contractor in line with
Section 6 subsection (1) of the Public Procurement and Disposal Act 2005,
this being an instance of a negotiated grants and loan.”

106. The contract for the supply and installation of the facilities,
locomotive and rolling stocks had provision that:
“The Government of Kenya and the Financial
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Institution of China have entered into the necessary

financing agreement relating to provision of financing
for the supply and installation of the facilities,
locomotives and rolling stocks for the Mombasa-Nairobi
Standard Gauge Railway Project.
The duly signed financing agreement entered into by
the Government of Kenya and the Financial Institutions
of China has been endorsed and certified by the State
Law Office of Kenya.”
107. Based on the foregoing, it is not accurate, as was claimed by Mr.
Maina, that the engagement of CRBC as the contractor was as a result of
dictation by the financing agreement. We conclude, therefore, that the
engagement of CRBC was not an obligation arising from “negotiated grant
or loan” agreement for purposes of Section 6 of the Act. This is because as
indicated above, the contract with CRBC as the contractor was procured
long before the financing agreement was entered into. The holding by the
learned Judge to the contrary, is with respect, not supported by the facts
as set out above.

108. We do not think that in enacting Section 6 of the Act, it was intended
that the identification of a supplier of goods and services (in effect the
procurement) would precede the loan agreement which would oust the
procurement procedures under the Act. In this case, it is the procurement
that dictated the terms of the loan that ousted the procurement
procedures under the Act as opposed to the terms of the loan agreement
dictating the procurement procedure or who the supplier of the goods and
services would be. The situation is not at all ameliorated by the fact that
the entity that undertook the feasibility study and spelt out the manner in
which the project would be implemented dictated that it would be the
implementor or executor of the project.
109. We conclude and hold, therefore, that in this instance, Section 6(1)
of the Act did not oust the application of the Act from the procurement and
KRC, as the procuring entity, was therefore under an obligation to comply
with the requirements of the Act in the procurement of the SGR project.

110. In our view, the claims by the appellants that Parliament was by
passed and that environmental considerations were not considered have
no merit. Those claims were sufficiently countered. It was demonstrated
that the project was deliberated upon by the National Assembly following
which the Customs and Excise Act was amended through the Finance Act,
2013 by making provision for Railway Development Levy to fund the
construction of the SGR. Equally it was also demonstrated that an
environment impact assessment was undertaken and a licence granted in
that regard.
111. The upshot, in conclusion, therefore is that:
a.We uphold the decision of the learned Judge ordering to be

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expunged from the record documents that had been

presented by the appellants as evidence in support of the
petitions.
b. We set aside that part of the judgment of the High Court
holding that the procurement of the SGR was exempt from the
provisions of the Public Procurement and Disposal Act, 2005
by reason of Section 6(1) thereof. We substitute therefore an
order declaring that Kenya Railways Corporation, as the
procuring entity, failed to comply with, and violated provisions
of Article 227 (1) of the Constitution and Sections 6 (1) and 29,
of the Public Procurement and Disposal Act, 2005 in the
procurement of the SGR project. The appeals succeed to that
extent only.

c. We order that each party shall bear its own costs of the
appeal, this being a matter of public interest.
Orders accordingly.
Dated and delivered at Nairobi this 19th day of June, 2020.
M.K. KOOME
........................................
JUDGE OF APPEAL
S. GATEMBU KAIRU, (FCIArb)
.......................................
JUDGE OF APPEAL
J. MOHAMMED
....................................
JUDGE OF APPEAL
I certify that this is a true
copy of the original.
Signed
DEPUTY REGISTRAR

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