Hon. Peter A Imwatok (mca) v The Nairobi City County & 7 others
The bottom line
#Kenya's Court of Appeal revived a corruption-related petition challenging a county medical insurance deal, confirming High Courts can hear mixed constitutional and procurement claims directly.
What this practically means
#Executive summary
#Key legal issues
#Whether the High Court had jurisdiction over a petition alleging constitutional and statutory breaches in a county medical insurance procurement
The trial court erred in holding that it lacked jurisdiction; the petition properly invoked the High Court's jurisdiction under Article 165 of the Constitution
Article 165(3)(d) confers on the High Court jurisdiction over questions of constitutional interpretation. The petition raised crosscutting breaches of the Constitution and several statutes, which fell outside the exclusive mandate of investigative agencies. Deferring such a petition to administrative bodies would clog the fight against corruption and create hurdles for complainants on irregular procurement. The High Court has overarching unlimited jurisdiction to determine constitutional questions.
Whether the doctrine of exhaustion required the petitioner to first resort to the Public Procurement Regulatory Authority
The doctrine of exhaustion did not arise; the Authority's functions under section 9(1) do not extend to determining the reliefs sought in the petition
None of the Authority's statutory functions permit it to sit as a court on non-compliance or grant the declaratory and surcharge reliefs sought; it can only investigate and refer matters to relevant agencies. The petition raised a web of correlated breaches across several statutes, not merely monitoring, assessment and review of the procurement system, so the trial court misinterpreted section 9(1)(a). The petition also sought judicial, not investigative, relief.
Whether the petition could be struck out for failure to comply with section 5 of the Oaths and Statutory Declaration Act
A defective commissioning of the affidavit goes to form, not jurisdiction, and cannot oust the High Court's jurisdiction
The respondents argued the affidavit was not commissioned in accordance with section 5 of the Oaths and Statutory Declaration Act and its rules. The Court held this relates to form rather than jurisdictional cardinal principles and cannot be a basis for striking out a constitutional petition in limine. That argument therefore failed.
Whether costs should have been awarded against a public interest litigant
The trial court misdirected itself in awarding costs; public interest litigation should promote access to justice rather than self-interest
Guided by the Supreme Court's decision in Okoiti, the Court held that public interest litigants who do not seek costs for themselves should not ordinarily face adverse costs orders, as the primary consideration is access to justice. The issues in the petition affected members of staff of the County Government rather than the petitioner personally, making it a public interest litigation dispute.
Whether new issues raised for the first time on appeal should be entertained
It was improper for the parties to raise new issues on appeal, though the Court dissected them and found they could be determined on the merits
Relying on the Tom Mbaluto decision, the Court reiterated that an appellate court is restricted to issues canvassed before and decided by the trial court. The respondents' new arguments on section 9(1)(n), the Review Board, Article 185(3) and Article 195(1) were not raised at the preliminary objection hearing; those touching constitutional interpretation should be determined on the merits.
Legal principles established
#- The Public Procurement Regulatory Authority under section 9(1) of the Public Procurement and Asset Disposal Act is not a court or tribunal empowered to determine breaches and grant the reliefs of a constitutional petition; it may only investigate and refer matters to relevant agencies
- The doctrine of exhaustion does not apply where a petition raises crosscutting constitutional and statutory breaches across several Acts which no single administrative forum is empowered to determine
- The High Court has overarching unlimited jurisdiction to determine constitutional questions, and a defective affidavit or formal defect under the Oaths and Statutory Declarations Act cannot oust that jurisdiction
- The Public Procurement Administrative Review Board cannot hear constitutional issues and only a candidate as defined in the Act can lodge a complaint before it
- In public interest litigation, the primary consideration is access to justice, and public interest litigants should not seek costs; an unsuccessful public interest litigant should not ordinarily be condemned to pay costs
Court orders
#- 1.The findings of the trial court dated 13th June 2018 striking out the petition and Notice of Motion dated 20th April 2018 are set aside
- 2.The award of costs by the trial court is set aside
- 3.The petition and Notice of Motion dated 20th April 2018 are placed before a Judge other than On'gundi, J. in the Nairobi High Court Anti-corruption and Economic Crimes Division for disposal on the merits
- 4.Each party shall bear its own costs of the appeal
- On appeal from
- High Court of Kenya, Nairobi, Anti-corruption and Economic Crimes Division
- Not stated in the judgment
- Jurisdiction invoked
- First appellate jurisdiction under the Court of Appeal Act (appeal against the High Court ruling striking out the petition for want of jurisdiction); the constitutional jurisdiction of the High Court under Article 165 of the Constitution was the central issue on appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hon. Peter A Imwatok (mca) v The Nairobi City County & 7 others", Case Analysis (2024). Not stated in the judgment (Court of Appeal appeal from High Court Constitutional Petition, Nairobi Anti-corruption and Economic Crimes Division). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/509/eng@2024-04-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.