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Republic v Procurement Administrative Review Board & another; Wodex Technologies Ltd (Exparte Applicant); Tana Solutions Limited (Interested Party) (Judicial Review Miscellaneous Application E104 of 2023) [2023] KEHC 24930 (KLR) (Judicial Review) (7 November 2023) (Judgment)

Republic v Procurement Administrative Review Board & another; Wodex Technologies Ltd (Exparte Applicant); Tana Solutions Limited (Interested Party) (Judicial Review Miscellaneous Application E104 of 2023) [2023] KEHC 24930 (KLR) (Judicial Review) (7 November 2023) (Judgment)
Citation
Republic v Procurement Administrative Review Board & another; Wodex Technologies Ltd (Exparte Applicant); Tana Solutions Limited (Interested Party) [2023] KEHC 24930 (KLR)
Media Neutral Citation
[2023] KEHC 24930 (KLR)
Court
High Court
Court station
High Court at Nairobi (Milimani Law Courts)
Outcome
Dismissed
Case number
Judicial Review Miscellaneous Application E104 of 2023
Judges
JM Chigiti
Judgment date
7 November 2023
Language
English
Type
Judgment
Original source file
Download DOCX (74.0 KB)
Collections
Date published
10 November 2023
Case action
Judgment
Court division
Judicial Review
Filing county
Nairobi
Order
The Application dated 16th October, 2023 is dismissed with costs.
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1.The application before this Honourable Court is the Notice of Motion dated October 16, 2023 filed pursuant to the leave granted by this Honourable Court on September 27, 2023. The application is supported by a Statutory Statement dated October 16, 2023 and the supporting affidavit sworn by John Mutunga sworn on October 16, 2023.
2.The Application has been brought pursuant to articles 47 (1) & (3) of the Constitution of Kenya, 2010, section 7 of the Fair Administrative Action Act, Sections 42 and 174 of the Public Procurement and Asset Disposal Act and Order 53 Rule 3 of the Civil Procedure Rules.
3.The Application seeks the following Orders;1.That an order of Certiorari removes into this Honorable court for purposes of being quashed, quashing and to quash the decision of the 1st Respondent’s (hereinafter “the Board”) entire decision and subsequent orders delivered on the 21st September, 2023 in Request for Review Application Number 34 of 2023, dated August 31, 2023 in respect of Tender No. NHIF/028/2022-2023 Tender for Supply of Computer Equipment. (hereinafter “the Tender.”).2.That this Honorable Court be pleased to grant an order of Prohibition restraining the 2nd respondent (hereinafter “the Procuring Entity”) from implementing the decision and consequential orders of the Board in Request for Review Application Number 34 of 2023, dated August 31, 2023 in respect of Tender No. NHIF/028/2022-2023 Tender for For Supply Of Computer Equipment. (hereinafter “the Tender.”).3.That this Honorable Court be pleased to grant an order of Mandamus directing the Board to review the confidential bundle/documents availed to it by the Procuring Entity under section 67(3) (e) of the Public Procurement and Asset Disposal Act (hereinafter “the Act”) and the Applicant’s email dated the 4th July, 2023 pursuant to section 67 (3) (a) and Regulation 80 (2) Public Procurement and Asset Disposal Regulations, 2020, Item ITT 37 of the Tender Documents, section 87 (3) and section 126 (4) of the Public Procurement and Asset Disposal Act and make a fresh determination as to whether the evaluation was conducted fairly and if the Interested Party complied with all mandatory requirements.
4.Pursuant to a Tender No. NHIF/ 028/ 2022-2023 for the Supply and Delivery of Computer Equipment using open tender method which was publicly advertised in the 2nd Respondent’s website forty-two (42) bids were submitted and upon completion of evaluation on 5th June,2023 the 2nd Respondent is said to have awarded the Tender to Tana Solutions Limited.
5.The Ex parte Applicant’s Director Mr. John Mutunga is said to have received a letter dated 17th August,2023 from the 2nd Respondent indicating that they had opted to elect the lowest bidder who was the Interested Party herein. The Ex parte Applicant’s bid is said to have been disqualified.
6.Mr. Mutunga unhappy with this decision filed a Request for Review before the 1st Respondent on 31st August, 2023 seeking for a review of decision by the 2nd Respondent awarding Tender Nos. NHIF/028/2022-2023 to the Interested Party in this matter.
7.A ruling dated 31st August,2023 is said to have been delivered by the 1st Respondent on 21Sst September,2023. The Board’s decision is said to be based on illegality, unreasonableness, irrationality and frustrating legislative purpose as it trashed a breach of mandatory requirement by the 2nd Respondent as inconsequential and failed to appreciate that their decision was discriminatory and unfair both procedurally and substantively.
8.The 1st Respondent is faulted for failing to adhere to the provisions of section 173 of the Public Procurement and Asset Disposal Act, Article 47 and 227 of the Constitution of Kenya and section 4 of the Fairness and administrative Act. This is because it said to have failed to hold that the 2nd Respondents actions were contrary to Regulation No. 80 (2) of the Public Procurement and Asset Disposal Regulations, 2020 and section 83 (1) of the Public Procurement and Asset Disposal Act. It is also the Applicant’s case that the 1st Respondent also failed to note that the 2nd Respondent failed to adhere to the previous ruling issued on the 15th June, 2023 in Application for Review No. 34 of 2023.
9.The Applicant’s decision to file a review is said to have been informed by the 1st Respondent directive to the 2nd Respondent to carry out due diligence on all participants of the impugned Tender and also by the fact that through an email dated 4th July,2023 a representative of Hewlett Packard had indicated that the Manufacturing Authorization Form dated 16th March,2023 submitted by Interested Party did not originate from Hewlett Packard(HP).
10.It is the Applicant’s case that the second lowest Bidder, Marvel Africa Technologies, was not notified of the regret letter by the 2nd Respondent as is stipulated under section 87 (3) and section 126 (4) of the Public Procurement and Asset Disposal Act.
11.The decision by the Respondent it is argued has failed to satisfy the requirements of constitutional and natural justice. It is also contended that the same is bad and untenable in law having failed to extend to the Applicant’s Director an opportunity to ventilate his claim and to the extent that his claim was dismissed owing to the utilization of erroneous applications of the law governing the authority by the 1st Respondent.
12.On the Respondents’ assertion that the Applicant had failed to comply with section 167(1) and (2) of the Public Procurement and Asset Disposal Act and Regulation 203 of the Public Procurement and Asset Disposal Regulations 2020 the Applicant’s Director argues that he made a formal request for review through a letter dated the 31st August, 2023 and the same was received by the 1st and 2nd Respondents as per the provisions of section 167 (1) and (2) of the Public Procurement and Asset Disposal Act and Regulation 203 of the Public Procurement and Asset Disposal Regulations 2020.
13.The Applicant also urges that the 2nd Respondent acknowledged having received a complaint in regards to the Applicant’s submitted document at paragraph 24 of its Replying Affidavit dated 6th September,2023. The 2nd Respondent is said to have carried out due diligence on the same but failed to so when a complaint was raised against the Interested Party.
14.The Applicant argues that the 2nd Respondent in its replying affidavit categorically states that the letter and email were all sent out on the 17th August,2023. However, communication to Marvel Africa Technologies is said to have been sent out on 18th August, 2023 after official business hours and on 31st August, 2023 after the close of the tender in question.
15.The Applicant also argues that on further inquiry by the 1st Respondent at the hearing before the 1st Respondent, the 2nd Respondent did not produce any evidence to show the reasoning as to why there was an inconsistency in the date of sending out the email or where sales@marvelafrica.co.ke was retrieve from yet the email from Marvel Africa Technologies clearly indicated that their email address was info@marvelafrica.co.ke.
16.The 1st Respondent is said to have acted unreasonably, by issuing a ruling on the 21st September, 2023 and failing to rule objectively and ruling subjectively. The Director of the Applicant urges that the 1st Respondent failed to give proper weight to relevant factors he had raised to counter the grounds of opposition raised by the 2nd Respondent, the factors are said to have been influenced by past decisions that the 1st Respondent had issued.
17.The 1st Respondent is also accused of failing to comply with its previous issued directions in Decision in Application No.50 of 2023- Trident Insurance Company Ltd v Independent Electoral and Boundaries Commission.pdf and Decision No.64 of 2022 Notice of Motion COM Twenty-One Limited and Communications Authority of Kenya (1).pdf.
18.The Ex parte Applicant also argues that the Board failed to take judicial notice that Public Procurement and Asset Disposal Act and the Public Procurement and Asset Disposal Regulations, 2020 are silent on the avenue to be taken in the event of Non-Compliance of orders and/or directives that it has issued.
19.The 1st Respondent is faulted for upholding res judicata as had been claimed yet, when the Ex parte Applicant made this argument, the grounds of opposition raised by the 2nd Respondent were upheld yet it had been submitted and shown why res judicata was imminent had the Ex parte Applicant opted to file another new claim.
20.The 2nd Respondent in rebuttal filed a Replying Affidavit sworn by Elijah Wachira who swears to be the Chief Executive Officer of the National Health Insurance Fund which shall be referred to as the Procuring Entity hereinafter.
21.In the affidavit the deponent avers that as per the Board’s directions issued on 15th June,2023 the 2nd Respondent re-evaluated the bids for tender NHIF/028/2022-2023 and the Evaluation Committee out of the forty-one (41) bidders found that thirty-five (35) bidders did not meet the mandatory requirements and observations for various reasons that were recorded on the Evaluation report.
22.The Deponent further deposes that due diligence conducted on verifiable documents on bidders who proceeded to Technical evaluation showed that M/s Woodex Technologies Limited had attached an expired ICT Authority Certificate leading to the disqualification of the Applicant’s bid.
23.It is averred that only six(6) bidders that is M/s. Wincomp Services Limited, Copierforec (K) Ltd, Integrated Supplies & Consultancy, Tana Solutions Ltd, Contralinks Solutions & Services and Dignity Traders Limited who had qualified were awarded scores for the various technical requirements . The bidders were required to score minimum score of 75% and above in order to proceed to the financial level. Five bidders out of the five (5) qualified and proceeded for financial evaluation.
24.The Evaluation Committee is said to have observed that Tana Solutions Limited was the lowest evaluated bidder at Kenya Shillings Forty-Seven Million, Nine Hundred and Eighty Thousand Only(47,980,000.00) and therefore recommended the Interested Party be awarded the Tender.
25.A letter of notification of intention to award is said to have been issued on 17th August,2023 to the successful bidder. The Deponent also avers that letters informing unsuccessful bidders of who the successful candidate was were issued simultaneously.
26.Upon the filing of the Request for Review by the Applicant the 2nd Respondent herein is said to have filed Grounds of Opposition dated 4th September,2023 where it raised the following issues;i.That the Honourable Board upon hearing all the parties to the PPARB Application Number 34 of 2023 rendered its decision on 15th June, 2023 which period was within the twenty-one (21) days statutory period;ii.That consequently the Honourable Board became functus officio upon rendering, its decision in the said Request for Review on 15th June,2023.iii.That therefore, the instant Application does not meet the threshold of a Request of Review as stipulated under sections 167(1) and (2) of the Public Procurement and Asset Disposal Act,2015 as read with Regulation 203 of the Public Procurement and Asset Disposal Regulations, 2020.iv.That accordingly, the Board was not seized of any competent Request for Review before it to enable it exercise its jurisdiction.
27.That the Ex parte Applicant’s application sought to review the 2nd Respondent’s decision dated 17th August,2023 under PPARB No.34 of 2023 which Request for Review had already been heard and determined by the Board and the matter was consequently closed on 15th June, 2023. It is the 2nd Respondent’s case that upon rendering its decision the Board’s statutory window as under Section 171 of the Public Procurement and Asset Disposal Act,2015.
28.It is the 2nd Respondent’s case that if the Applicant was aggrieved by its decision it ought to have filed a fresh Request for Review challenging the decision. The 1st Respondent is said to have upon considering the Request for Review Application, the responses by the parties, the rival submissions and the confidential documents issued the following orders;i.The Respondents’ Grounds of Opposition dated 4th September,2023 be and is hereby upheld;ii.The Notice of Motion Application dated 31st August,2023 be and is hereby struck out; andiii.Given the Board’s finding above each party shall bear its own costs.
29.The 2nd Respondent urges that in arriving at the said decision, the 1st Respondent was guided by the provisions of law and more specifically sections 27,28,167(1),171(1) & (2) of the Act read with regulation 203(2) of the Regulations 2020 as well as judicial authorities.
30.The deponent avers that the role of the court in judicial review is supervisory, and that an application seeking this court to exercising its jurisdiction has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety. The case of Pastoli v Kabale District Local Government Council & Others [2008] 2 EA 300 is refered to on the definition of illegality, irrationality and procedural impropriety.
31.The 1st Respondent is said to be a specialized statutory tribunal whose composition as provided in section 29(1) and (2) of the Procurement and Asset Disposal Act, is of a professional/persons with technical know-how in their areas of practice, and thus the 1st Respondent’s decisions should only be interfered with when the necessary parameters for judicial review are met. The Applicant it is argued has failed to plead with specificity the said grounds.
32.It is the 2nd Respondent’s case that in the Ex parte Applicant’s cited Decision No. 64 of 2022 Com Twenty-one Limited And Communications Authority Of Kenya, the Notice of Motion Application therein did not seek a Request for Review of the Decision of the Procuring Entity, but wholly concerned an application for enlargement of time to comply with the Orders of Review Board.
33.The 2nd Respondent also contends that in the Decision No.50 of 2023-Trident Insurance Company Limited v IEBC there was no holding that filing of a subsequent Request for Review following a re-evaluation process flowing from a decision of the Review Board would render such a subsequent Request for Review being held res judicata.
34.On the cited Decision No.101 of 2022 Galana Oil Kenya Limited v Kenya Power & Lightning Company plc the matter was remitted for fresh determination following a judicial review decision of the High Court in Republic v Public Procurement Administrative; Galana Oil Kenya Limited & 2 others (Interested Parties) (Application 188 of 2022)[2023] KEHC 483(KLR) (Judicial Review) (3 February 2023)(Judgment) where the Honourable Court found that the initial decision of the Board was tainted as the Chairperson sitting then had failed to declare conflict of interest.
35.The 2nd Respondent argues that none of the cited judicial authorities by the Applicant are in relation to review of a decision of the Procuring Entity filed and determined in an already concluded Request for Review. Further that the Application seeks not to only challenge the decision of the Board but also challenge the decision to award by the 2nd Respondent thus the same is improper.
36.The Interested Party also filed a Replying Affidavit sworn on 19th October,2023 by Massud Abdirazak Omar who depones that he is the Director of Tana Solutions Limited.
37.It is deponed that as per the Board’s decision and directions issued on the 15th June,2023 the 2nd Respondent through letters dated 26th June,2023 notified the tenderers of the cancellation of the letters dated 15th May,2023 and issued on 18th May,2023 and proceeded to conduct a re-evaluation of the bids.
38.The 2nd Respondent in its Replying Affidavit filed in PPARB 34 of 2023 dated 31st May,2023 is said to have confirmed that upon a second due diligence exercise having been undertaken the ICT Authority Certificate submitted by the Ex parte Applicant was expired leading to its disqualification.
39.It also confirmed that Marvel Africa Agencies’ tender document was not paginated on the pages appearing on pages 29 and 31 and was hence disqualified in the initial evaluation for failure to comply with the mandatory requirement for fully paginating its tender document.
40.The deponent argues that a review of the documents filed by the Ex parte Applicant before the Board shows that the Notice of Motion was not accompanied by a Request for Review in the format provided for in the Fourteenth Schedule as per Regulation 203 of the Regulations, hence fatally defective.
41.He also avers that the fatally defective Notice of Motion was anchored in an already decided (spent) Request for Review Number 34 of 2023 whose Decision was rendered by the 1st Respondent on the 15th June 2023, further depriving the Board of the requisite jurisdiction to entertain this matter.
42.Further that the manner of filing a suit is not a mere procedural technicality that can be overlooked by a court but is an issue that goes into the jurisdiction of the court such that without a proper Request for Review, the Board had no jurisdiction to entertain the matter and that even though it had jurisdiction the Notice of Motion would still be fatally defective and time barred since as per Section 171 of the Act, the Review Board is obligated to render its Decision within 21 days after receiving the Request for Review.
43.It is also deponed that the Ex parte Applicant having failed to adhere to Section 167(1) of the Act as read with Regulation 203 of the Regulations, the Ex-parte Applicant could not turn back and blame the Board for denying them their rights under Article 47 of the Constitution of Kenya.
44.Further that the failure of the Ex-parte Applicant to adhere to Section 167 (1) as read with Regulation 203 of the Regulations and their action of filing a Notice of Motion under the spent Request for Review No. 34 of 2023 is fatal and cannot be cured by Article 159(2) which was never meant to oust the obligation of litigants to comply with procedural imperatives as they seek justice.
45.The 2nd Respondent is said to have to have fully complied with Regulation No. 80 (1) of the Regulations by conducting due diligence and obtaining a professional opinion first on the bid by Marvel Africa Technologies, with the Orders of the previous Board Ruling issued on 15th June,2023 by conducting a fresh evaluation and also notified Marvel Africa Technologies as per the evidence present by the Procuring Entity.
46.The Ex parte Applicant is accused of appearing to prosecute this matter on behalf of Marvel Africa Technologies which despite being notified of the Intention to Award, did not file its Request for Review and pay the required filing fees and neither has it tendered any authorization to the Ex parte Applicant to pursue their interests on their behalf.
47.It is the Interested Party’s case that the Ex-parte Applicant herein has completely misinterpreted and misapplied the 1st Respondent’s Decision in Request for Review Application No. 50 of 2023 -Trident Insurance Company Ltd v Independent Electoral and Boundaries Commission, where the finding of res judicata was not based on the filing of a fresh Request for review but on the fact that the analysis by the Board found that those issues had already been heard and determined and hence res judicata was applicable.
48.The Ex parte Applicant it is also deponed misapplies the findings of the Board in Decision No. 64 of 2022 – Notice of Motion Com Twenty-One Limited and Communications Authority of Kenya in the aforementioned case, the Notice of Motion was an application by the procuring entity seeking extension of time to comply with the Board’s Decision in the same Request for Review No. 64 of 2022,the Applicant/Successful bidder did not oppose the Application and further that the Application was merited based on the extraneous circumstances given by the Procuring Entity, there being a budget shortfall.
49.The Ex parte Applicant is also accused of further misrepresenting the Judicial Review Orders given in Decision 101 of 2022 – Galana Oil Kenya Ltd v Kenya Power & Lighting Company PLC, since the manner, the time of filing a Request for Review and the jurisdiction of the Review Board to entertain a fatally defective Application for Review were not in contention in that case.
50.On the Ex parte Applicant being denied a right to a fair hearing as it did not have an opportunity to respond to the questions formulated by the Board in its Ruling the Interested Party argues that from page 21 of the 1st Respondent’s Ruling rendered on 21st September,the Board summarises the clarifications sought by the it during the virtual hearing from the Ex parte Applicant and the Respondent, wherein the Ex parte Applicant was given an opportunity to explain why it opted to file a Notice of Motion Application.
51.The Ex parte Applicant is also said to have been aware that the issue of jurisdiction would arise as it was aware that the 2nd Respondent had already objected to its Notice of Motion through its Grounds of Opposition.
52.The deponent also contends that the Ex parte Applicant other than clarify the issue of jurisdiction opted to ignore the same and instead canvass substantive issues touching on due diligence.
53.The Ex parte Applicant it is contended has failed to show how the Board’s decision is tainted with illegality or irrationality and that it was ultra vires or in breach of legitimate expectations and therefore in the circumstances, the Orders of Certiorari, Prohibition and Mandamus cannot issue as they are not merited.
54.The application was canvassed by way of written submissions. The Ex parte Applicant filed written submissions dated 23rd October,2023.
55.The Ex parte Applicant cites the case of Republic v Public Procurement Administrative Review Board & 2 others Exparte Rongo University [2018] eKLR where the court stated that a decision to award a tender constitutes administrative action qualifying under the provisions of Article 47 of the Constitution of Kenya and the Fair Administrative Action Act from which a cause of action for Judicial Review arises.
56.On the issue of illegality, the Ex parte Applicant cites the case of Republic v Public Procurement Administrative Review Board & 2 others Exparte Rongo University [2018] eKLR where the court held that illegality is based on two limbs those that if proved, mean that the public authority was not empowered to take action or make the decision it did and two relate to whether the authority exercised its discretion properly.
57.The Ex parte Applicant further submits that Regulation 218, opens up the purview and discretion of the board and indicates that it should not be bound by strict adherence to the rules of evidence. The composition of the board and the rules and regulations that guide it make it a quasi-judicial body, thus the reasoning behind regulation 218. The 1st Respondent is empowered by statute to advance the cause of justice, by opting not to adhere to the strict rules that governs evidence taking in the courts.
58.Further that pursuant to section 172 of the act, the discretion that is conferred by the board in terms of dismissing a suit have been expressly provided for and that the Ex-parte applicant’s application for review dated the 31st August 2023 was neither frivolous or vexatious and the striking out of the same was an illegality.
59.The Ex parte Applicant argues that there being no modus operandi that should be used to either report a contravention by the Procuring Entity the only its only recourse was to file a further review and notify the 1st Respondent that the 2nd Respondent had failed to comply with its directions. It is contended that in such circumstance where a party has failed to comply with court directions an aggrieved party is at liberty to move the court through Motions in order to notify it of such non-adherence.
60.It submitted that is important to note, that the only limitation that has been placed, is that the review should be concluded within 21 days. The Ex parte Applicant also submits that neither the said section nor the entire act, clarify whether the review should be filed a fresh or if a party can file a further review within a subsisting and/or existing review.
61.The Ex parte Applicant’s submission is that the Aprim Case was wrongly applied in the matter concerning the Exparte Applicant as the reasoning behind the Judgement was the wording of the act itself. The act gave timelines and went further to issue the effect of failing to comply with those timelines.
62.The Court of Appeal IN the Aprim case is said to have in all instances gone a step further in examining the documentation that had been placed before it. It is said to have considered this material and went as far as appreciating the fact that discretion has been granted by the Court of Appeal Rules and based on this fact and the enshrines of Article 159 (d) discretion would be a consideration, be that as it may, the PPDA Act was the parent statute and its provisions stood as the primary footing for the court.
63.The Ex parte Applicant submits that it has indicated the error is the failure of the 2nd Respondent to adhere to the directives of the 1st Respondent and also the failure of the 2nd Respondent to adhere to the directives given by the 1st respondent to act on this information.
64.The Ex parte Applicant’s submission is that it had a legitimate expectation that the 1st Respondent would exercise its discretion as it had done in Decision in Application No.50 of 2023- Trident Insurance Company Ltd v Independent Electoral and Boundaries Commission.pdf, Decision No.64 of 2022 Notice of Motion COM Twenty-One Limited and Communications Authority of Kenya (1) and the Decision in Application No 101 of 2022 - Galana Oil Kenya Ltd v Kenya Power & Lighting Company PLC1 (1).
65.It is submitted that no sufficient overriding interest has been provided by the 1st Respondent to justify a departure from the conduct in the afore mentioned cases and treating the Ex-parte applicant to a different set of rules. Also, that a new cause of action should only have arisen if the 2nd Respondent was directed to begin the tender process from the beginning, meaning that the terms of the tender changed, the application process changed, the bidders were asked to produce fresh material, etc. The 2nd Respondent is said to have only been asked to notify of the notification to award and not the entire process.
66.The 1st Respondent is said to have noted in its Ruling delivered on 15th June,2023 that the tender process had not concluded and directed that the same do proceed to its logical conclusion, while directing the 2nd Respondent to correct the anomalies that had been noted. The Ex parte Applicant submits that based on the afore mentioned set of facts, it is erroneous to purport because fresh re-evaluation had been conducted that the process begun a fresh.
67.The 1st Respondent it is submitted is bound by the principle of stare decisis and further that it cannot depart from its previous Rulings/Judgements unless an appellate court has overturned the Judgement/Ruling.
68.The public policy interest considerations it is submitted outweigh any procedural aspects/technicalities. The 2nd Respondent is a state co-operation and is a custodian of funds remitted by every Kenyan for the cooperation to hold and manage in line with its mandate. The entity being a state organ is bound by Article 227 and Article 10 of the Constitution and in exercise of their mandate the 1st and 2nd Respondents must uphold good governance integrity, transparency and accountability.
69.The Ex parte Applicant cites the case of Republic v Kenya Revenue Authority; Proto Energy Limited (Exparte) (Judicial Review Application E023 of 2021) [2022] KEHC 5 (KLR) (24 January 2022) (Judgment) where the court held that the foundational basis for granting an order of mandamus is proof that there is a public legal duty to act, a duty is owed to the person seeking the order, there is a clear right for the performance of the duty, no other adequate remedy is available to the Applicant, the order sought must be of some practical value or effect, there is no equitable bar to the sought relief and finally that on a balance of convenience, mandamus should lie.
70.The 2nd Respondent also filed written submissions which are dated 18th October,2023 and in the submissions the 2nd Respondent argues that as was held in the Court of Appeal case of Aprim Consultants v Parliamentary Service Commission & another C.A. No.E039 of 2021 timelines in public procurement disputes are cast in stone and upon the lapse of the timeline, the jurisdiction of the court ceases.
71.The 2nd Respondent’s submission is that while discharging its supervisory roles as envisaged under Article 165(6) of the Constitution this Honourable Court does not conduct a fresh trial by going into the merits of the case but it must limit itself to checking for illegality,irrationality,procedural impropriety and proportionality. The Supreme Court case of Saisi & 7 Others v Director of Public Prosecutions&2Others(Petition39&40)(Consolidated))[2023]KESC 6 (KLR)(Civ) is cited to further buttress this argument.
72.The Supreme Court in the above case is also said to have noted that specialized institutions are better placed to adjudicate and determine technical or specialized issues.
73.The 2nd Respondent refers to the case of Pastoli v Kabale District Local Government Council & Others [2008]2 EA 300 on the definitions of illegality, irrationality and procedural impropriety. The case of Republic v Public Procurement Administrative Review Board & 2 others Ex parte Pelt Security Services Limited [2018] eKLR is cited on what constitutes unreasonableness.
74.The case of Republic v Public Procurement Administrative Review Board & 2 others Ex parte Numerical Machining Complex Limited [2016] is refered to where the court held that where the law exhaustively provides for jurisdiction or authority, the body or authority must operate within those limits and ought not expand its jurisdiction through administrative craft or innovation.
75.The 2nd Respondent also cites the case of Republic v Public Procurement Administrative Review Board & another Ex parte Guardforce Group Limited;Pwani University & 2 Others (Interested Parties) [2021] eKLR where the court held that due diligence could be conducted at any stage of the tendering process.
76.It is also the 2nd Respondent’s case that the authorities cited by the Ex parte Applicant do not address the issue that was actually before the Board for determination in making a finding that it lacked jurisdiction to hear and determine the impugned Notice of Motion application dated 31st August,2023.
77.The 2nd Respondent’s submission is that as was held by the Court in Republic v Public Procurement Administrative Review Board ;Consortium of GBM Projects Limited and ERG InsaatTicaretVeSanayi A.S. (interested party);National Irrigation Board Ex parte [2020] eKLR a bid qualifies as a responsive bid if it meets all the requirements as set out in the bid document. Further that bid requirements usually relate to compliance with regulatory prescripts, bid formalities, or functionality/technical, pricing and empowerment requirements.
78.The Interested Party on the other hand in its submissions dated 25th October,2023 cites the case of Republic v Public Procurement Administrative Review Board; Shenzhen Instrument Co. Limited & another (Interested Party) Ex parte Kenya Power and Lighting Company Limited [2019] eKLR (Kenya Power Case [2019]) on the difference between a review and an appeal.
79.It is also its submission that even with the implicit shift in Judicial Review that came with the 2010 Constitution and the enactment of the Fair Administrative Action Act that expanded the province of judicial review and now allows for both procedural and substantive (merit based) judicial review, the law and the courts have defined the grounds that would allow a merit review under limited circumstances which the Ex parte Applicant has failed to prove.
80.On the claim by the Ex parte Applicant that filing a fresh Request for Review would have sustained an objection of res judicata the Interested Party relies on the decision of the High Court in Republic v Public Procurement Administrative Review Board & 3 others Ex parte Tecno Relief Services Limited [2019] eKLR where the court interrogated the issue of res judicata in a similar situation, where a public procurement case had been filed before the Board two times over the same procurement proceedings but the court in its finding held that res judicata did not apply.
81.The finding of res judicata it is argued is not determined purely on the fact of the filing of a new case relating to the same proceedings, but whether the issue had been raised and addressed before and whether there have been intervening circumstances that give rise to a new cause of action.
82.It is also the Interested Party’s case that whereas in the Decision made on the review on 15th June 2023, the issue was to do with due diligence conducted on the Ex parte Applicant and manner of cancellation of the award letters issued on 28th April,2023 the subsequent Request for Review would have been whether the Procuring Entity complied with the directives of the Board issued in Request for Review No. 34 of 2023 on the 15th June 2023. This is because the directive became a duty imposed on the procuring entity to be performed.
83.The Interested Party submits that the comparative examples applied on page 7 of the Applicant’s Submissions are not of any value regarding how the Board should address contempt of its Orders. This is because the Board and local courts have already addressed this issue of disobedience of the Order of the Board and procedure for redress, hence there is no lacunae. The Board in PPARB Application No. 18 of 2023, at pages 70 to 111, is also said to have addressed the issue of disobedience with its orders and found that it has jurisdiction to hear those issues.
84.It is also submitted that the Ex parte Applicant should have adhered to the procedure for filing a Request for Review as set out in section 167(1) of the Act as read with Regulation 203 of the Regulations as those are procedure imperatives and to further buttress this argument the cases of Odinga v Independent Electoral and Boundaries Commission & 3 others (Petition 5 of 2013) [2013] KESC 2 (KLR) (26 March 2013) (Ruling) and Scope Telematics International Sales Limited v Stoic Company Limited & another [2017] eKLR are refered to. The application by the Ex parte Applicant is said to have been fatally and incurably defective for failure to follow a clear laid down procedure, thus denying the Board jurisdiction to entertain it.
85.On jurisdiction the Interested Party cites the Supreme Court case of Interim Independent Electoral & Boundaries Commission [2011] eKLR where it articulated the principles governing the assumption of jurisdiction by Kenyan courts. These principles are said to be anchored in the Constitution, statutory law, and established judicial precedents. The case of Owners of Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Limited [1989] KLR 1 is also cited.
86.The Interested Party also submits that the Board had the right to suo motu determine its jurisdiction as was held in Attorney General & 2 others v Okiya Omtata Okoiti & 14 others [2020] eKLR.
87.The Ex parte Applicant is accused of failing to disclose the source of the document or any form of certification that would prove the authenticity of the document purporting to emanate from Hewlett Packard (HP) addressed to the 2nd Respondent, or that it was not illegally obtained. It is also the Interested Party’s submission that since documents relating to the evaluation and procurement process as held by procuring entities are confidential, the alleged evidence is illegally obtained and contrary to section 67 of the Act as regards Confidentiality. On inadmissibility of illegally obtained evidence the case of Standard Gauge Railway (SGR), Okiya Omtatah Okoiti & 2 others v Attorney General & 4 others [2020] eKLR is cited.
88.It is the Interested Party’s case that legitimate expectations must be within the confines of the law as was held in the case of Republic v Kenya Revenue Authority Ex Parte Shake Distributors Ltd [2012] eKLR.The Ex parte Applicant is also accused of failing to establish the grounds that warrant the grant of those Orders as established in Republic v Public Procurement Administrative Review Board & 3 others Ex parte Tecno Relief Services Limited [2019] eKLR.
89.In conclusion the Interested Party submits that The Applicant has failed to demonstrate that the decision of the 1st Respondent is tainted with ultra vires/error of law, irrationality and unreasonableness and procedural impropriety or that there was a breach of legitimate expectations.
Analysis And Determination
90.I have carefully considered the Application, the statutory statement, the verifying affidavit, the response, and respective submissions and authorities of the parties and the following are the issues for determination;i.Whether that 1st Respondent had jurisdiction to hear and determine the Ex parte Applicant’s Notice of Motion dated 31st August 2023?ii.Whether the 2nd Respondent discharged its duty of notifying the unsuccessful tenderers that their tenders were not successful?iii.Whether there was any illegality in the way the 2nd Respondent conducted its due diligence?iv.Whether the 1st Respondent was functus officio and bereft of any jurisdiction in respect to the second Request for Review No. 34 of 2023 filed on 31st August 2023 by the Ex parte Applicant?v.Whether the Ex parte Applicant’s right to legitimate expectation was breached?vi.Whether the Ex parte Applicant ought to have filed a Notice of motion as opposed to a request for review application?vii.Whether the Ex Applicant was condemned unheard?
91.In the case of Pastoli v Kabale District Local Government Council and Others [2008] 2 EA 300 the Court while citing the case of Council of Civil Unions v Minister for the Civil Service [1985] AC 2 and an Application by Bukoba Gymkhana Club [1963] EA 478 at 479 held that:“In order to succeed in an application for judicial review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety...Illegality is when the decision-making authority commits an error of law in the process of taking or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality...Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards...Procedural Impropriety is when there is a failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision.”
92.Lord Diplock’s classic dictum in Council of Civil Service Unions v Minister for the Civil Service (1985) 1 AC 374 provides a useful guide on what an unlawful decision entails where the learned judge spoke of these grounds as follows:“My Lords, I see no reason why simply because a decision-making power is derived from a common law and not a statutory source, it should for that reason only be immune from judicial review. Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call “illegality,” the second “irrationality” and the third “procedural impropriety.” That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of “proportionality” which is recognised in the administrative law of several of our fellow members of the European Economic Community; but to dispose of the instant case the three already well-established heads that I have mentioned will suffice.”
Whether the 1st Respondent had jurisdiction to hear and determine the Ex parte Applicant’s Notice of Motion dated 31st August 2023?
93.Section 167(1) of The Public Procurement and Assets Disposal Act provides that subject to the provisions of this Part, a candidate or a tenderer, who claims to have suffered or to risk suffering, loss or damage due to the breach of a duty imposed on a procuring entity by this Act or the Regulations, may seek administrative review within fourteen (14) days of notification of award or date of occurrence of the alleged breach at any stage of the procurement process, or disposal process as in such manner as may be prescribed.
94.The Ex-Parte Applicant faults the Board for invoking Section 171 of The Public Procurement and Assets disposal Act even though the 2nd Respondent solely relied on Section 167 (1) of the Act and of applying Section 171 suo motto.
95.The Supreme Court in the case of Nasra Ibrahim Ibren v Independent Electoral and Boundaries Commission & 2 others, Supreme Court Petition No. 19 of 2018, stressed the fact that jurisdiction is everything and that a court may even raise a jurisdictional issue suo motu. It said:“40A jurisdictional issue is fundamental and can even be raised by the court suo motu as was persuasively and aptly stated by Odunga J in Political Parties Dispute Tribunal & another v Musalia Mudavadi & 6 others Ex Parte Petronila Were [2014] eKLR. The learned Judge drawing from the Court of Appeal precedent in Owners and Masters of The Motor Vessel “Joey” v Owners and Masters of The Motor Tugs “Barbara” and “Steve B” [2008] 1 EA 367 stated thus:“25.What I understand the Court to have been saying is that it is not mandatory that an issue of jurisdiction must be raised by the parties. The Court on its own motion can take up the issue and make a determination thereon without the same being pleaded…” (Emphasis supplied)
96.The Board acted legally when it dismissed the Notice of Motion dated 31st August 2023 being Request for Review No. 34 of 2023 on the 21st of September 2023 for lack of jurisdiction by dint of Section 167 (1) where.This limb of the Application fails.
Whether the 2nd Respondent discharged its duty of notifying the unsuccessful tenderers that their tenders were not successful;
97.A concern was raised by the Applicant that Marvel Africa Technologies was not notified that their tender was not successful.
98.Article 227(1) of the Constitution stipulates 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.
99.Section 87 (1) of The Public procurement and Assets disposal Act provides that “Before the expiry of the period during which tenders must remain valid, the procuring entity shall notify the person submitting the successful tender that his tender has been accepted”.
100.The Act under Section 87 (3) goes ahead to state that “When a person submitting the successful tender is notified under subsection (1), the accounting officer of the procuring entity shall also notify in writing all other persons submitting tenders that their tenders were not successful, disclosing the successful tenderer as appropriate and reasons thereof”.
101.In order to satisfy myself whether there was an omission as alleged, and without getting into the merits of the case,this Court has to familiarized itself with the notification dated 17th August 2023 and I am satisfied that the 2nd Respondent complied with Section 87 (1) of The Public Procurement and Assets disposal Act.
102.According to the Interested party, the 2nd Respondent notified all the bidders through letters dated 17th August 2023 that the 2nd re-evaluation had been completed and the subject Tender had been awarded to the lowest evaluated responsive tenderer, this being the Interested Party.
103.The court in Pastoli v Kabale District Local Government Council and Others [2008] 2 EA 300 while citing the case of Council of Civil Unions v Minister for the Civil Service [1985] AC 2 and an Application by Bukoba Gymkhana Club [1963] EA 478 at 479 held that:...Illegality is when the decision-making authority commits an error of law in the process of taking or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality...
104.Where there is a failure on the part of the procuring authority to notify all other persons submitting tenders that their tenders were not successful under Section 67 (2) of The Public Procurement and Assets disposal Act then such an omission amounts to an illegality that subjects the entire procurement process to the judicial review scrutiny.
105.A failure to notify a tenderer that it was not successful offends Article 47 of the Constitution and a procurement process that flows in that form cannot be said to have been fair,equitable,transparent or competitive.
106.A lot goes on behind the scene in the preparation to bid for all the tenderers. A lot of resources are channelled and expended towards securing or winning the bid. Tenderers put in a lot of time into the procurement preparation because it is a very competitive and tedious rigorous process.It is usually a delicate yet lucrative capital investment project for those who venture into the tender industry. The importance of notifying a tenderer who was not successful cannot be gain said. The notification is at the heart of the principle of fair hearing.
107.Public procurement involves the procurement of goods and services for the government departments and for the benefit of the public and it calls for a lot of transparency that goes hand in hand with the call for quality and value for money for the procurement entities. The statutory notification that is issued at the tail end, helps the tenderer who was not successful to decide whether or not to pursue administrative action to challenge the manner in which the successful candidate was awarded the tender. It also helps bring closure.
108.Article 47 (1) & (2) of the Constitution provides as follows;(1)that every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.(2)If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.
109.The unsuccessful tenderer is a party who has been or is likely to be adversely affected by administrative action and they have a right to be given written reasons for the action. Failure to communicate to the party who lost the tender no doubt means that they were not given reasons for their failure to succeed in the bid thereby offending Article 47 of the Constitution.
110.Section 7(1) of the Fair Administrative Action Act provides as follows“Any person who is aggrieved by an administrative action or decision may apply for review of the administrative action or decision to–(a)a court in accordance with section 8; or(b)a tribunal in exercise of its jurisdiction conferred in that regard under any written law.”
111.The statutory notification is a critical component of the procurement law, democracy and the rule of law and it must at all times be adhered to.
112.To allow the procurement entities to breach or disregard this mandatory provision of the law would offend our national values and principles of government and in particular the rule of law. This values and principles are as guaranteed under Article 10 (2) of the Constitution as follows –(a)patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people;(b)human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized.(c)good governance, integrity, transparency and accountability.(d)sustainable development.
113.The failure to notify the tenderers who were not successful suffocates competition. A process that is bereft of competition and quality cannot be said to be one that is cost effective. A contract that is signed in an environment where the losing parties are not notified cannot be said to be a legally sound contract.
114.The right to access to information as guaranteed under Article 35 of the Constitution applies to procurement matters. The procuring entities are bound by Article 20 (1) of the Constitution which provides that The Bill of Rights applies to all law and binds all State organs and all persons. The failure to notify or give information to the party who lost the tender amounts to a failure to protect, promote and fulfil Article 35 and 227 of the Constitution and I so hold.
115.Section 7(2) of The Fair Administrative Action Act gives this court the power to review an administrative action or decision, if–(c) the action or decision was procedurally unfair; (d) the action or decision was materially influenced by an error of law.
116.The following principles shall guide all aspects of public finance which no doubt includes public procurement issues in the Republic under Article 201 of the Constitution—(a)there shall be openness and accountability, including public participation in financial matters;(d)public money shall be used in a prudent and responsible way.
117.Informing the party who was not successful is part of public participation to the extent that it generates the much-needed transparency to the members of the public to whom the procuring entities are accountable to for how the public resources are put to use.
118.This court is satisfied that the 2nd Respondent complied with the foregoing and in particular with Section 87 of The Public Procurement and Assets disposal Act from Annexure “PM 5b” of the 2nd Respondent’s Replying Affidavit dated 18th October 2023.A notification was indeed sent to Marvel Africa Technologies. The Applicant has not satisfied the court that Marvel Africa Technologies was not notified that its bid was unsuccessful.This limb of the Applicants case fails.
Whether there was any illegality in the way the 2nd Respondent’s conducted its due diligence?
119.The Applicant filed a review before the 1st Respondent on 31st May, 2023 and a Decision was issued on 15th June,2023 by the 1st Respondent, directing the 2nd Respondent, to carry out due diligence on all applicants to the afore mentioned Tender.
120.A Hewlett Packard representative sent an email to the officers of the 2nd Respondent, indicating that the Manufacturing Authorization Form dated the 16th March, 2023 that had been tendered by the Interested Party, did not originate from Hewlett Packard, (HP).
121.This information was re-laid to the 2nd Respondent on the 4th July, 2023 at 14:17 Hours. This was done subject to the provisions of section 67 (3) (a) of the Public Procurement and Asset Disposal Act.
122.According to the Applicant, despite the sharing of the information no follow up was made by the 2nd Respondent. This was confirmed in the 2nd Respondents Replying affidavit dated the 6th September, 2023 and also at the virtual hearing conducted by the 1st Respondent on the 14th September, 2023. Even on further inquiry by the 1st Respondent during the hearing by the 1st Respondent the 2nd Respondent did not de-bunk the assertions in the letter and/or deny receipt of the email.
123.In response to this the Interested Party case was that assuming even that the Board had addressed the substance of the second Request for Review No. 34 of 2023 and addressed this issue, the allegations would have been dismissed on the basis that the evidence relied upon by the Ex-Parte Applicant since the alleged emails are either irregularly obtained or fake.
124.Further, it is argued that a party who comes seeking for judicial review orders must come to court with clean hands, which is not the case with the Ex parte Applicant.
125.Whether or not the 2nd Respondent found any probative value in the Hewlett Packard email which is challenged was within the discretionary terrain of the 2nd Respondent. The Judicial review court cannot sit on appeal to relook at the merits of the decision.
126.Within the issue of due diligence, a concern was raised that the issue of the Applicant did not possess a valid “Certificate from ICT Authority” at the time of the closure of the tender. This was an express mandatory eligibility requirement as number 14 on page 24 which required all the bidders to submit “Certificate from ICT Authority”.
127.The 2nd Respondent conducted a due diligence exercise using ICTA verification portal on the Ex Parte Applicant’s Certificate and established that the Ex parte Applicant’s Certificate from the ICT Authority was not valid at the time of the tender submission deadline having expired on 2nd February 2023 and as such the Evaluation Committee had been asked to review tenders in the subject tender and all tenderers informed accordingly.
128.It is clear that indeed due diligence was done on verifiable documents provided by bidders, including the Interested Party and that it was confirmed for a second time that the ICT Authority Certificate submitted by the Ex parte Applicant had expired leading to its disqualification.
129.This court finds that there was no illegality in the way the 2nd Respondent conducted its due diligence in so far as the Applicants’ “Certificate from ICT Authority” was concerned. The due diligence was carried out within the verification process. A failure to conduct the due diligence would have opened up the entire procurement process into a breach of Article 227 of The Constitution.
130.It is not and should not be in this courts remit to direct, control or micromanage procurement entities on the manner in which due diligence is conducted once a requirement is set in the tender documents. The court’s jurisdiction is invoked only where there are illegalities, irregularities or procedural lapses and I find none in this case.
131.This issue has not been proved and the same is disallowed and the court cannot grant an order of mandamus as sought.
Whether the 1st Respondent was functus officio and bereft of any jurisdiction in respect to the second Request for Review No. 34 of 2023 filed on 31st August 2023by the Ex parte Applicant?
132.The Board determined the Request for Review No. 34 of 2023 that had been lodged on 31st May 2023 and made its pronouncement within 21 days as required under the Act, through its decision of 15th June 2023.
133.The Supreme Court in the case of Raila Odinga & 2 others v Independent Electoral & Boundaries Commission, Ahmed Issack Hassan, Uhuru Kenyatta & William Samoei Ruto (Petition 5, 4 & 3 of 2013) [2013] KESC 8 (KLR) (Civ) (24 October 2013) (Ruling) held as follows on the doctrine of functus officio;“18.We, therefore, have to consider the concept of “functus officio,” as understood in law. Daniel Malan Pretorius, in “The Origins of the functus officio Doctrine, with Specific Reference to its Application in Administrative Law,” (2005) 122 SALJ 832, has thus explicated this concept: “The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter.… The [principle] is that once such a decision has been given, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be revoked or varied by the decision-maker.”19.This principle has been aptly summarized further in Jersey Evening Post Limited v A1 Thani [2002] JLR 542 at 550:“A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling on adjudication must be taken to a higher court if that right is available” [emphasis supplied].”
134.Upon rendering its Decision, the Board became functus officio and bereft of any jurisdiction in respect of the purported second Request for Review No. 34 of 2023 filed on 31st August 2023 and I so hold.
Whether the Ex parte Applicant’s right to legitimate expectation was breached?
135.Having found it lacked jurisdiction, the Board had no other option but down its tools. The board could not have legally entertained the Notice of Motion dated 31st of August 2023 under Request for Review No. 34 of 2023. The argument by the Applicant that the Board’s decision was irrational, unreasonable, ultra vires, illegal and in breach of legitimate expectations is wanting.
136.In Republic v Kenya Revenue Authority ex parte Shake Distributors Limited HC Misc. Civil Application No. 359 of 2012 it was held that:“On the issue of legitimate expectation, the Applicant submitted that it met all the pre-requisite conditions and obtained all the documents necessary for the importation of sugar. The Applicant argued that it had received an assurance that after meeting the necessary conditions its legitimate expectation would be protected and not breached. In reply the Respondent submitted that it did not make any representation to the Applicant that it would clear its imports without imposing conditions permitted in law or release them on terms which contravene customs law or practice.“According to Harry Woolf, Jeffrey Jowell and Andrew Le Sueur at page 609 of the 6th Edition of De Smith’s Judicial Review, ‘Such an expectation arises where a decision maker has led someone affected by the decision to believe that he will receive or retain a benefit or advantage (including that a hearing will be held before a decision is taken)’. It follows therefore that the cornerstone of legitimate expectation is a promise made to a party by a public body that it will act or not act in a certain manner. For the promise to hold, the same must be made within the confines of law. A public body cannot make a promise which goes against the express letter of the law. In the case before me there is no evidence of a written or verbal promise made to the Applicant that its goods would be allowed in Kenya once he obtained the necessary licenses. One may argue that the legitimate expectation was based on the understanding that goods from Uganda would be admitted into Kenya at a duty rate of 0%. However, that argument cannot hold when one considers the fact that the Respondent has a statutory duty to ensure that all the necessary taxes for goods entering Kenya have been paid. The Applicant’s argument that its legitimate expectation was breached therefore fails.”
137.Having found that it lacked jurisdiction to entertain the matter, the Board could not exercise its powers given under Section 28 as read with Section 167(1) of the Act to review the Confidential/bundle of documents that were availed to it by the 2nd Respondent in accordance with Section 67(3) of the Act.
138.A public body cannot make a promise which goes against the express letter of the law and no legitimate expectation argument can stand so as to advance an illegality.The argument of breach of the right to legitimate expectation fails.
Whether the Ex parte Applicant ought to have filed a Notice of motion as opposed to a request for review application?
139.The Request for Review Number 34 of 2023 was determined by the 1st Respondent on the 15th of June 2023.The Applicant thereafter filed a Notice of Motion dated 31st of August 2023 under Request for Review No. 34 of 2023.The new set of events generated a new cause of action and the Applicant should have filed a fresh request for review and not a Notice of Motion.
140.Section 167 of the Public Procurement and Asset Disposal Act as read with Regulation 203 of the Public Procurement and Asset Disposal Regulations, 2020 provide the manner and the format that a tenderer should follow while filing a Request for Review.
141.Regulation 203 (1) of the Regulations states as follows that “a Request for Review under Section 167 (1) shall be made in the Form set out in the Fourteenth Schedule of these Regulations”.
142.The Notice of Motion as filed by the Ex parte applicant cannot be equated to a Request for Review application as provided for in the Fourteenth Schedule as per Regulation 203 of the Regulations, hence it is fatally defective.
143.That further, the fatally defective Notice of Motion was anchored in an already decided Request for Review Number 34 of 2023 whose decision was rendered by the 1st Respondent on the 15th of June 2023, further depriving the Board of the requisite jurisdiction to entertain this matter and it is so held.This issue fails.
Whether the Ex parte Applicant was condemned unheard?
144.Article 47 (1) of the Constitution states as follows;“Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.”
145.Article 47(2) continues to state as follows;“If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.”
146.Article 47 has now been effectuated by the Fair Administrative Action Act, 2015 under section 4(3) which provides as follows:(3)Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision-a.prior and adequate notice of the nature and reasons for the proposed administrative action;b.an opportunity to be heard and to make representations in that regard;c.notice of a right to a review or internal appeal against an administrative decision, where applicable;d.a statement of reasons pursuant to section 6;e.notice of the right to legal representation where applicable;f.notice of the right to cross examine or where applicable; or;g.information, materials and evidence to be relied upon in making the decision or taking the administrative action.
147.In Kenya Human Rights Commission v Non-Governmental Organizations Co-ordination Board [2016] eKLR where the court held as follows:“As to what constitutes fair administrative action, the court in President of the Republic of South Africa and Others v South African Rugby Football Union and Others (CCT16/98) 2000 (1) SA 1, stated thus:“Although the right to just administrative action was entrenched in our Constitution in recognition of the importance of the common law governing administrative review, it is not correct to see section 33 as a mere codification of common law principles. The right to just administrative action is now entrenched as a constitutional control over the exercise of power. Principles previously established by the common law will be important though not necessarily decisive, in determining not only the scope of section 33, but also its content. The principal function of section 33 is to regulate conduct of the public administration, and, in particular, to ensure that where action taken by the administration affects or threatens individuals, the procedures followed comply with the constitutional standards of administrative justice. These standards will, of course, be informed by the common law principles developed over decades…” [Emphasis supplied].
148.A person whose interests and rights are likely to be affected by an administrative action has a reasonable expectation that they will be given a hearing before any adverse action is taken as well as reasons for the adverse administrative action as provided under Article 47 (2) of the Constitution.
149.Generally, one expects that all the precepts of natural justices are to be observed before a decision affecting his substantive rights or interest is reached. It is however also clear that in exercising its powers to superintend bodies and tribunals with a view to ensuring that Article 47 is promoted the court is not limited to the traditional judicial review grounds. The Fair Administrative Action Act, 2015 must be viewed in that light.
150.Article 50(1) of the Constitution makes provision for fair hearing. The Article is to the effect that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.
151.The right to fair hearing is evidently closely intertwined with fair administrative action. The often-cited case of Ridge v Baldwin [1964] AC 40 restated the right to fair hearing as a rule of universal application in the case of administrative acts or decisions affecting rights. In his speech to the House of Lords in 1911, Lord Loreburn aptly put it as a ‘duty lying upon everyone who decides anything’ that may adversely affect legal rights.
152.Halsbury Laws of England, 5th Edition 2010 Vol. 61 at para 639 on the right to be heard states that:“The rule that no person is to be condemned unless that person has been given prior notice of the allegations against him and a fair opportunity to be heard (the audi alteram partem rule) is a fundamental principle of justice. This rule has been refined and adopted to govern the proceedings of bodies other than judicial tribunals; and a duty to act in conformity with the rule has been imposed by the common law on administrative bodies not required by statute or contract to conduct themselves in a manner analogous to a court.”
153.I would state that it now appears that the court, effectively has a duty to look into not only the merits and legality of the decision made due to the requirement of “reasonable” action under Article 47, but also the process and procedure adopted due to the requirement of following all precepts of natural justice under both Articles 47 and 50 (1) of the Constitution. The court proceeding under Article 47 of the Constitution is expected not only to pore over the process but also ensure that in substance there is justice to the petitioner. The traditional common law principles of judicial review are, in other words, not the only decisive factor.
154.It may sound like stretching the precincts of traditional judicial review, but clearly by the Constitution providing for a “reasonable” administrative action and also enjoining decision makers to provide reasons, the constitutional scheme was to entrench the blazing trend where courts were already going into merits of decisions by innovatively applying such principles like proportionality and legitimate expectation. I must however confess that the line appears pretty thin and, perhaps, more discourse is required on the subject of traditional judicial review and the now entrenched substantive constitutional judicial review.
155.The twin rules of natural Justice that no man shall be a Judge in his own cause (Nemo Judex in causa sua) and that no man shall be condemned unheard (audi alteram partem) are cardinal principles of law which are fundamental in our Justice system. They are basically an embodiment of the duty to act fairly. However, there is no legal definition or standard regarding what constitutes procedural fairness and each case must be decided on its own merits.
156.Republic v Public Procurement Administrative Review Board; Shenzhen Instrument Co. Limited & another (Interested Party) Ex parte Kenya Power and Lighting Company Limited 120191 eKLR held that;“...a decision suffers from procedural impropriety if in the process of it making the procedures prescribed by statute are not followed or if the "rules of natural justice' are not adhered to. Decision makers must act fairly in reaching their decisions. This principle applies solely to matters of procedure, as opposed to considering the substance of the decision reached" [Emphasis ours]
157.The Applicant alleges that it was denied a right to a fair hearing as it did not have an opportunity to respond to the questions formulated by the Board in its Ruling. I have looked at the Ruling in the PPARB Application No. 34 of 2023 rendered on 21st September 2023 from where it summarizes the clarifications sought by the Board during the virtual hearing from the Ex parte Applicant and the Respondent, wherein the Ex parte Applicant was given an opportunity to explain why it opted to file a Notice of Motion Application at page 21 of The Ruling. This court has no jurisdiction to determine whether the summary was correct or not since it is not doing a merit analysis. This court focuses on procedural lapses impropriety and all irregularities and I find none in the ruling.
158.In the case of Pastoli v Kabale District Local Government Council and Others [2008] 2 EA 300 it was held;“In order to succeed in an application for judicial review, the Applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety ...Illegality is when the decision-making authority commits an error of law in the process of taking or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality. It is, for example, illegality, where a Chief Administrative Officer of a District interdicts a public servant on the direction of the District Executive Committee, when the powers to do so are vested by law in the District Service Commission...Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards......Procedural Impropriety is when there is a failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision.”
159.It is common knowledge that judicial review jurisdiction is supervisory by nature; it is the channel through which judicial supervision over administrative action is exerted; and, generally speaking, it is meant to cast doubt on any decision that is made in violation of the law. Lord Diplock’s classic dictum in Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374 provides a useful guide on what an unlawful decision entails.
160.The learned judge spoke of these grounds as follows:“…I have described the third head as “procedural impropriety” rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. But the instant case is not concerned with the proceedings of an administrative tribunal at all.”
161.Without doing any merit analysis, this court has looked at the proceedings and the Respondent’s ruling in order to determine whether or not the Applicant was denied an opportunity to be heard.
162.It is my finding that the 2nd Respondent observed rules of natural justice and acted with procedural fairness towards the Exparte Applicant. The Applicants argument that it was denied the right to fair hearing has not been proven.
163.In Republic v Principal Kadhi, Mombasa Ex-parties Alibhai Adamali Dar & 2 others; Murtaza Turabali Patel (Interested Party) [2022] eKLR, the Court rendered itself thus:“The Order of "Prohibition" issues where there are assumptions of unlawful jurisdiction or excess of jurisdiction. It's an order from the High Court directed to an inferior tribunal or body as in this case the Kadhi’s Court. Its functions is to prohibit and/or forbids encroachment into jurisdiction and further to prevent the implementation of orders issued when there is lack of jurisdiction.""Although prohibition was originally used to prevent tribunals from meddling with cases over which they had no jurisdiction, it was equally effective and equally often used, to prohibit the execution of some decision already taken but ultra vires. So long as the tribunal or administrative authority still had power to exercise as a consequence of the wrongful decision, the exercise of that power could be restrained by prohibition. Certiorari and prohibition frequently go hand in hand, as where Certiorari is sought to quash the decision and prohibition to restrain its execution. But either remedy may be sought by itself."
164.Having failed to prove that it was entitled to the order of Certiorari, this court finds that there is no reason to issue the order of prohibition and I so hold.
Disposition:
165.It is this court’s finding that the Applicant has not proven its case.
ORDER:The Application dated 16th October, 2023 is dismissed with costs.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 7TH NOVEMBER 2023.……………………………………JOHN CHIGITI (SC)JUDGE
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Cited documents 19

Judgment 18
1. Odinga v Independent Electoral and Boundaries Commission & 3 others (Petition 5 of 2013) [2013] KESC 2 (KLR) (26 March 2013) (Ruling) Followed 84 citations
2. In the Matter of the Interim Independent Electoral Commission (Applicant) (Constitutional Application 2 of 2011) [2011] KESC 1 (KLR) (20 December 2011) (Ruling) Followed 77 citations
3. Republic v Kenya Revenue Authority; Proto Energy Limited (Exparte) (Judicial Review Application E023 of 2021) [2022] KEHC 5 (KLR) (24 January 2022) (Judgment) Followed 37 citations
4. Kenya Human Rights Commission v Non-Governmental Organisations Co-Ordination Board [2016] KEHC 5405 (KLR) Explained 34 citations
5. Saisi & 7 others v Director of Public Prosecutions & 2 others (Petition 39 & 40 of 2019 (Consolidated)) [2023] KESC 6 (KLR) (Civ) (27 January 2023) (Judgment) Followed 21 citations
6. Scope Telematics International Sales Limited v Stoic Company Limited & another [2017] KECA 545 (KLR) Followed 21 citations
7. REPUBLIC v KENYA REVENUE AUTHORITY Exparte SHAKE DISTRIBUTORS LTD [2012] KEHC 525 (KLR) Followed 16 citations
8. Republic v Public Procurement Administrative Review Board & 2 others Ex-Parte Pelt Security Services Limited [2018] KEHC 2068 (KLR) Followed 13 citations
9. Republic v Principal Kadhi, Mombasa Ex-parties Alibhai Adamali Dar & 2 others; Murtaza Turabali Patel (Interested Party) [2022] KEELC 371 (KLR) Explained 7 citations
10. Ibren v Independent Electoral and Boundaries Commission & 2 others (Petition 19 of 2018) [2018] KESC 75 (KLR) (21 December 2018) (Judgment) Explained 6 citations
Act 1
1. Constitution of Kenya Interpreted 31757 citations

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