Wilson Airport Police Canteen Limited v The Inspector General of Police Kenya Police Service & another
The bottom line
#A canteen operator lost its court challenge because its licence had expired, and the court ruled procurement disputes belong elsewhere.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the ex parte applicant had any legal right or interest in the suit premises at the time the tendering process was conducted
- 2.Whether the tendering process for tender No MICNG/SDI/KPS/005/2021-2023 was marred by procedural improprieties warranting certiorari and prohibition
- 3.Whether the court has jurisdiction over compliance or non-compliance with the Public Procurement and Asset Disposal Act
- 4.Whether the application for contempt dated March 16, 2022 should be allowed
Key legal issues
#Whether the applicant possessed a protectable legal right or interest after expiry of its licence
The applicant had none; the licence expired on June 11, 2021, the three-month extension lapsed on December 27, 2021, and no renewal followed
The court examined the verifying affidavit of the applicant's managing director, which admitted the licence had expired and was not renewed. Without a subsisting agreement or licence, there was no enforceable right capable of protection by judicial review orders.
Whether the court could compel the respondents to renew the agreement or award the canteen services
No; courts cannot rewrite contracts or impose new contractual obligations on parties
Relying on National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd, the court held that contracts are voluntary undertakings. Absent an agreement for extension or renewal, the court could not impose an obligation on the respondents to create a fresh contractual relationship.
Whether the Environment and Land Court could adjudicate the alleged procurement irregularities
It could not; procurement compliance is outside its jurisdiction under Article 162(2)(b)
The applicant challenged tender No MICNG/SDI/KPS/005/2021-2023 as procedurally improper. The court held that compliance or non-compliance with the Public Procurement and Asset Disposal Act is not a matter within the jurisdiction conferred on the Environment and Land Court by Article 162(2)(b) of the Constitution.
Legal principles established
#- A court cannot rewrite a contract between parties or impose an obligation to create a new contractual relationship where none exists
- Compliance with the Public Procurement and Asset Disposal Act does not fall within the jurisdiction of the Environment and Land Court under Article 162(2)(b)
Court orders
#- 1.The entire suit is dismissed
- 2.Any orders of stay given herein are discharged
- 3.The application for contempt dated March 16, 2022 is dismissed
- 4.The ex parte applicant shall bear the costs of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution (Environment and Land Court); judicial review under Order 53 (leave granted February 22, 2022)
Relief refused
#Order of certiorari quashing the decision awarding the tender for canteen services
No subsisting agreement or licence; procurement compliance falls outside the court's jurisdiction under Article 162(2)(b)
Order of prohibition against eviction and handover of the canteen operations
The applicant held no legal right or interest after expiry of the licence
Application for contempt dated March 16, 2022
Dismissed together with the substantive motion upon discharge of stay orders
Costs
The ex parte applicant shall bear the costs of the suit
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I discern that there was no agreement or license between the ex parte applicant and the respondents as at the time the tendering process was being conducted.
Contracts are voluntary undertakings and a court of law cannot re write a contract between parties
the compliance of, or none compliance with the Public Procurement and Disposal Act, is on issue which does not fall under the jurisdiction of this court in terms of the provisions of article 162 (2) (b) of the Constitution.
In the circumstances, the entire suit is dismissed and any orders of stay given herein are hereby discharged; hence the application for contempt dated March 16, 2022 is also dismissed. The ex parte applicant shall bear the costs of the suit.
Issues in the judgment
#Respondents' affidavit cites 'article 277' of the Constitution on procurement; the procurement provision is Article 227
Judgment inconsistently names the procurement statute as 'Public Procurement and Disposal Act 2015' and 'Public Procurement and Asset Disposal Act, No 33 of 2015'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wilson Airport Police Canteen Limited v The Inspector General of Police Kenya Police Service & another", Case Analysis (2022). Environment and Land Judicial Review Miscellaneous Application 3 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13760/eng@2022-10-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.