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| Issue 097| Newsletter Archive | Friday 19th March 2010 | |
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THE PUBLIC PROCUREMENT ADMINISTRATIVE REVIEW BOARD HAS NO JURISDICTION TO WAIVE THE MANDATORY STATUTORY REQUIREMENTS By Monica Achode - Advocate Republic v Public Procurement Administrative Board Ex Parte Kenya Medical supply Agency and 3 others The Public Procurement Administrative Review Board had no jurisdiction to waive the obvious mandatory statutory requirements or even to the handle review in the negative manner that it did. It exceeded its jurisdiction; overstepped its mandate by dealing with issues which had not been pleaded before it ad in doing so reached a wrong decision. To find otherwise would be tantamount to negating the whole essence of the Public procurement and Disposal Act (No. 3 of 2005) and to encourage actions which would best be described as ultra vires, which would in any event be null and void. The High Court on 4th of March 2010 granted an application for an order of certiorari by the Kenya Medical Supply Agency (KEMSA), Crown Agents (CA), Deutsche Gesellschaft Fur Technishe Zusammenarbeit (GTZ) (here in called the consortium) compelling the consortium to admit the bid documents by the complainant, Hetero Drug Limited, and to carry out a fresh re-evaluation of the entire procurement process. The consortium had been involved in the procurement and supply chain management on behalf of the Ministry of Health for Anti-retroviral Drugs. On 6/3/2009 KEMSA advertised a tender for the supply of anti-retroviral (ARV) drugs. The tender documents which they availed to the intending bidders set out the manner and format in which bids would be submitted, in what it referred to as the Instructions to Tenderers. Clause 21.1 provided as a requirement that a tenderer should prepare 2 sets of documents, an original and copies of the tender clearly marking each one as “Original Tender” and “Copy of the Tender” as appropriate. It also stated that in the event of a discrepancy between the two the original would govern. According to KEMSA’s Executive Officer, the tenders submitted were opened in public and the consortium’s representatives proceeded to evaluate the bid documents at a preliminary level with a view to confirming whether they complied with the tendering requirements. It was at this point that it was discovered that the tender documents submitted by Hetero Drug Limited (the interested parties in the proceedings), included a scanned copy of the price schedule instead of an original document. For that reason Hetero’s document was declared non-responsive for contravening Clause 21.1 in the Instructions to Tenderers document. Hetero’s tender was therefore disqualified at the preliminary evaluation stage and the members of KEMSA proceeded with technical and financial evaluation of the remaining bids. Being dissatisfied with the decision of KEMSA which was of the view that its bid was unsatisfactory and contrary to the provisions of both law and the tender document, Hetero proceeded to request the Public Procurement Administrative ReviewBoard to review the KEMSA’s decision. KEMSA filed its reply contending that Hetero’s bid documents were not responsive as it had submitted a scanned copy of the price list as opposed to an original. Having heard both sides, the Board considered the review in favour of Hetero and ordered KEMSA to carry out a fresh evaluation, hence its move to court for an application for judicial review seeking orders of certiorari to remove to the court for purposes of quashing the Board’s decision. The application revolved around public procurement which is governed by the Public procurement and Disposal Act (No. 3 of 2005). This Act was enacted as and for the disposal of unserviceable, obsolete or surplus stores, equipment by public entities and to provide for other related matters. Its objectives as per section 2 were listed as among others; to maximize economy and efficiency, to promote competition and ensure that competitors were treated fairly, to promote the integrity and fairness of those procedures and to increase transparency and accountability in carrying out those procedures. KEMSA was of the view that not only was the Board acknowledging that Hetero had submitted a scanned copy of the price schedule, but that it had decided that the tender form was the primary document and that in those circumstances, a scanned copy of the price schedule would suffice. This, KEMSA felt was beyond the Board’s jurisdiction to determine. Its main grounds were that the Board failed to appreciate that the Consortium was mandated by the Act to reject Hetero’s scanned copy of the price schedule as it was not an original and that the Board made a grave error in law in failing to apply the mandatory provisions of the Act. KEMSA was therefore of the opinion that it would be in the “the interest of justice and good governance that the board’s decision be quashed and the mandatory provisions of the Instruction to Tender and consequently the Act be upheld”. KEMSA felt that failure to do this would result in a grave injustice to all the bidders who had submitted originals as per the requirements of the instructions to the Tenderers and thus undermine the purpose of the Act which was to ensure that the competitors were treated fairly. Hetero which maintained that the use of a scanned copy of the price schedule was not precluded opposed the application claiming that the application by KEMSA was an attempt “to disguise an appeal as a judicial review” and that the circumstances, the application was not frivolous but vexatious and an abuse of the process, meant to delay the cause of justice. The Board on the other hand claimed that for KEMSA’s application to succeed it had to establish that its decision was tainted with illegality, irrationality and that it was guilty of procedural impropriety. It cited section 98 of the Act which empowered the Board to nullify the award by KEMSA and to order the admission of Hetero. The court was alive to the fact that that in an application of this nature, one if the court’s main concerns would be weather the Board acted within its mandate as provided for under the Act. The Board was expected to act within the confines of the Act and other related laws. The court was also required to ascertain the question submitted for determination by the Board and what its terms of reference and jurisdiction were. On the question of whether KEMSA had the capacity to prefer judicial review proceedings the court felt that it having been a party to the Consortium was rightly before the court by virtue of the provisions of the Act which recognized the right of the parties to the review proceedings to apply for orders of judicial review. Further thereto, the fact that the Republic was the applicant in the matter could not deny KEMSA a right to be heard as an ex parte in the name of the Crown and applications for such orders had to be correctly initiated. The requirement that the bids be compliant was mandatory; to be fulfilled to the letter, one such requirement being that “the tender had to be submitted in the required format”. The copy that was submitted was scanned yet the Act did not cater for e-procurement. Although section 83G of the Kenya Communications Amendment Act (no. 1 of 2009) which was relied on by Hetero provided that where a law provided that information was to be written then notwithstanding anything contained in such law, such requirement was to be deemed to have been satisfied if such information or matter was rendered or made available in electronic format, the section was in direct contravention of the requirements of the Public Procurement Act which stated categorically that in case of a conflict where matters of procurement are concerned, the provisions of the Public Procurement and Disposal Act would prevail and therefore requirement that the tenderer prepare an original and the number of copies/set of the tender indicated and clearly marked original and copy respectively was mandatory. In view of the above it was the court’s decision that the Board had no jurisdiction to waive the obvious mandatory statutory requirements or even to handle the review in the manner that it did, for to allow so would be tantamount to negating the whole essence of the Act. With that the court found that KEMSA had ably demonstrated that the Board acted in excess of its jurisdiction by acting outside its mandate. It then proceeded to grant an order of certiorari and removed the court to quash the decision of the Board.
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Gazette and Legal Notices Vol CXII No 28 Dated March 19,2010 GAZETTE NOTICE NO. 2640 APPOINTMENT IN EXERCISE of the powers conferred by section 4 (1) (e) of the Universities Act, the Minister for Higher Education, Science and Technology appoints – Jamleck Mutugi (Dr.), to be Commissioner of Commission for Higher Education, for a period of five (5) years, with effect from 16th March, 2010. Dated the 16th March, 2010. SALLY KOSGEI ![]() GAZETTE NOTICE NO. 2641 APPOINTMENT IN EXERCISE of the powers conferred by section 11 (1) (f) (iii) and (v) of the Laikiipia University Education, Science and Technology appoints- Margery Wangui Kabuya, To be members of the Laikipia University College Council, for a period of three (3) years, with effect from 16th March, 2010. Dated the 16th March, 2010. SALLY KOSGEI, ![]() GAZETTE NOTICE NO. 2642 APPOINTMENT IN EXECISE of the powers conferred by paragraph 2 of the Kenya Education Staff Institute Order, 2010, the Minister for Education appoints- Oliver Mugenda-(Chairperson), To be members of the Council of Kenya Education Staff Institute, for a period of three (3) years, with effect from 5th March, 2010. Dated the 11th March, 2010. S.K. ONGERI, ![]() GAZETTE NOTICE NO. 2643 APPOINTMENT IN EXERCISE of the powers conferred by section 6 (1) (e) of the State Corporations Act, the Minister for Agriculture appoints- REHEMA DIDA JALDESA to be a member of the Board of Kenya Seed Company Limited, for a period of three(3) years, with effect from 12th March, 2010. The appointment of Zedekiah Nyandieka Agata*, is revoked. Dated the 15th March, 2010. WILLAIM ARAP RUTO, *G.N. 11432/2009 ![]() GAZETTE NOTICE NO. 2644 APPOINTMENT IN EXERCISE of the powers conferred by section 6 (1) (e) of the State Corporations Act, the Minister for Agriculture appoints- Wilberforce Kisiero, To be members of the Board of the Kenya Seed Company Limited, for a period of three (3) years, with effect from 19th March, 2010. Dated the 15th March, 2010. WILLIAM ARAP RUTO, ![]() GAZETTE NOTICE NO. 2645 APPOINTMENT IN EXERCISE of the powers conferred by section 31 (2) and (3) of the Sugar Act, 2001, the Minister for Agriculture appoints- GEORGE WASINGO AYUGI to be a member of the Sugar Arbitration Tribunal, for a period of three (3) years, with effect from 19th March, 2010. Dated the 15th March, 2010. WILLIAM ARAP RUTO, ![]() GAZETTE NOTICE NO. 2646 APPOINTMENT IN EXERCISE of the powers conferred by section 73 (d) (ii) of the Children Act (No. 8 of 2001), the Chief Justice appoints DANIEL OCHENJA Principal Magistrate at Kitale, to preside over cases involving children in respect of Rift Valley Province, with effect from 1st March, 2010. Gazette Notice no. 1920 of 2010, is revoked. Dated the 3rd February, 2010. J.E. GICHERU, ![]() GAZETTE NOTICE NO. 2652 THE TRUST LAND ACT REVOCATION OF LAND TITLES Whereas the parcels of Land whose details are described under the Schedule herein below were allocated and titles issued to private developers, it has come to the notice of the Government that he said parcels of land were reserved for private purposes under the relevant (cap. 280) and the Trust Land Act (Cap. 288). The allocations were therefore illegal and unconstitutional. Under the circumstances and in view of the public need and interest, the Government revokes all the said titles SCHEDULE PAMELA MUGEGI, ![]() GAZETTE NOTICE NO. 2654 THE TRUST LAND ACT REVOCATION OF LAND TITLES Whereas the parcels of land whose details are described under the Schedule herein below were allocated and titles issued to private developers, it has come to eh notice of the Government that he said parcels of land were reserved for private purposes under the relevant (Cap. 280) and the Trust Land Act (Cap. 288). The allocations were therefore illegal and unconstitutional. Under the circumstances and in view of the public need and interest, the Government revokes all the said titles SCHEDULE Kisii Municipality – MG – Part of Cathedral Mongare Machora, ![]() GAZETTE NOTICE NO. 2653 THE TRUST LAND ACT REVOCATION OF LAND TITLES WHEREAS the parcels of Land whose details are described under the Schedule herein below were allocated and titles issued to private developers, it has come to the notice of the Government that he said parcels of land were reserved for private purposes under the relevant (Cap. 280) and the Trust Land Act (Cap. 288). The allocations were therefore illegal and unconstitutional. Under the circumstances and in view of the public need and interest, the Government revokes all the said titles. Meru Central, Imenti North, Buiri, Imenti South HARRISON MUSUMIAH, ![]() GAZETTE NOTICE NO. 2655 THE TRUST LAND ACT REVOCATION OF LAND TITLES WHEREAS the parcels of land whose details are described under the Schedule herein below were allocated and titles issued to private developers, it has come to the notice of the Government that the said parcels of land were reserved for private purposes under the relevant provisions of the Constitution of Kenya, Government Lands Act (Cap 280) and the Trust Land Act (Cap. 288). The allocations were therefore illegal and unconstitutional. Under the circumstances and in view of the public need and interest, the Government revokes all the said titles. SCHEDULE GEOFFREY BIRUNDU, ![]() GAZETTE NOTICE NO. 2655 REVOCATION OF LAND TITLES WHEREAS the parcels of land whose details are described under the Schedule herein below were allocated and titles issued to private developers, it has come to the notice of the Government that the said parcels of land were reserved for private purposes under the relevant provisions of the Constitution of Kenya, Government Lands Act (Cap 280) and the Trust Land Act (Cap. 288). The allocations were therefore illegal and unconstitutional. Under the circumstances and in view of the public need and interest, the Government revokes all the said titles. SCHEDULE
WILFRED N NYABERI ![]() GAZETTE NOTICE NO. 2877 CANCELLATION OF LICENCES NOTICE is given that in exercise of the powers conferred by section 6 (1) of the African Christian Marriage and Divorce Act, the Ministers named in the schedule hereto have had their licences to celebrate marriages under the provisions of the said Act cancelled. SCHEDULE Denomination Name of Minister L.N. WAITHAKA, GAZETTE NOTICE NO. 2615 INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority (NEMA) has received an environmental impact assessment study report for the implementation of the proposed office/commercial block. The proposed development will comprise offices, 207 capacity car park, restaurant, shopping area, shops, hall of fame, exhibition museum, information centre passage, water storage tanks and washrooms. It will be one block that will consist of 16 floors and a basement of four floors for parking. The project is located on L.R. Number 209/12386 along Kenya Road in Upper Hill Area within the City of Nairobi. The project anticipates the impacts and mitigation measures set out in the gazette. The full report of the proposed project is available for inspection during working hours at:
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project. B.M. LANGWEN, ![]() GAZETTE NOTICE NO. 2616 INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority (NEMA) has received an environmental impact assessment study report for the implementation of the proposed expansion of the existing training centre capacity. The proposed development involves construction of:
The CEMASTEA site is located on L.R. NO 1160/224 in the Karen suburb of Nairobi. The project anticipates the impacts and mitigation measures set out in the gazette. The full report of the proposed project is available for inspection during working hours at:
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project. A.M. KARIUKI, ![]() GAZETTE NOTICE NO. 2617 INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority (NEMA) has received an environmental impact assessment study report for the implementation of the proposed Construction of Sukari Industries The site is located on L.R. Plot No. West Nyokal/Kanyikela/1511 and 1512 in Nguku Sub-location, South Kanyikela Location, Ndhiwa District, Nyanza Province. The project anticipates the impacts and mitigation measures set out in the gazette. The full report of the proposed project is available for inspection during working hours at:
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project. A.M. KARIUKI, ![]() GAZETTE NOTICE NO. 2618 INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority (NEMA) has received an environmental impact assessment study report for the implementation of the proposed development of a Petrol Station. The proposed project will entail development of a service station comprising of a filing station, a convenience store and a restaurant on parcel registered as Habaswein T165 situated in Habaswein town of North Eastern Province, along Abakore-Habaswein road, on the Eastern side of Habaswein town. The project anticipates the impacts and mitigation measures set out in the gazette. The full report of the proposed project is available for inspection during working hours at:
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project. A.M KARIUKI , ![]() GAZETTE NOTICE NO. 2619 INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority (NEMA) has received an environmental impact assessment study report for the implementation of the proposed establishment of Oil Seed Farming Project. The proposed development will be located in LR. No 13600 along Malindi to Garsen Road in Garsen area of Tana Delta District of Coast Province. The project will cover an approximate area of 28,911 hectares to be leased from the management of Wachu Ranch. The main features of the proposed project are as follows:
The project anticipates the impacts and mitigation measures set out in the gazette. The full report of the proposed project is available for inspection during working hours at:
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project. A.M. KARIUKI, ![]() GAZETTE NOTICE NO. 2620 INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority (NEMA) has received an environmental impact assessment study report for the implementation of the proposed LPG filing plant and wholesale outlet. The proposed project involves the installation of one storage tank, Cylinder filing shed, loading/offloading bay and related offices. The project is located on L.R. Number 209/8809 along Shimo la Tewa road within the environs of the Industrial, Nairobi. The project anticipates the impacts and mitigation measures set out in the gazette. The full report of the proposed project is available for inspection during working hours at:
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project. ![]() GAZETTE NOTICE NO. 2884 INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority (NEMA) has received an environmental impact assessment study report for the implementation of the proposed office/commercial block. The proposed development involves refurbishment of an already existing building comprising of godowns and the mazzannie floor. The new development aims at providing quality offices for the management and staff and a production/printing section unit, to maximise on full utilization of the plot. The proposed project is located on L.R. No. 209/108804, old Mombasa Road – Nairobi. It is sitatued off Old Mombasa road via North Airport Road. The project anticipates the impacts and mitigation measures set out in the gazette. The full report of the proposed project is available for inspection during working hours at:
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project. A.M. KARIUKI, ![]() GAZETTE NOTICE NO. 2885 INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority (NEMA) has received an environmental impact assessment study report for the implementation of the proposed modern petrol station and commercial development The proposed development involves putting in place a filing station station with seven (7) pumps, underground fuel tanks, inspection pit, wheel lobe, septic tanks and tyre repair. It will also have offices and other service amenities and complimentary services such as convenience store, car wash, garage and a service bay. The proposed project will be located within the Central Business District (CBD) of Maralal Town on Plot No. 5 off the main Nyahururu Maralal road. The project anticipates the impacts and mitigation measures set out in the gazette. The full report of the proposed project is available for inspection during working hours at:
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project. A.M. KARIUKI, ![]() GAZETTE NOTICE NO. 2886
INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority (NEMA) has received an environmental impact assessment study report for the implementation of the proposed residential Apartments The proposed Project intends to construct 4 storey residential apartments with a swimming pool, vehicle parking space and a club house. The project is located on L.R No. 4922/1, Ruaraka off Thika Road. The project sits on a 6- acre piece of land. The project anticipates the impacts and mitigation measures set out in the gazette. The full report of the proposed project is available for inspection during working hours at:
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project. A.M. KARIUKI, ![]() GAZETTE NOTICE NO. 2887 INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority (NEMA) has received an environmental impact assessment study report for the implementation of the proposed development of petrol service station. The Proposed project will entail development and is composed of five major sections:
The proposed project site is located on Plot No. Ruiru Township/418 Ruiru Township, Ruiru District. The project anticipates the impacts and mitigation measures set out in the gazette. The full report of the proposed project is available for inspection during working hours at:
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project. A.M. KARIUKI, ![]() GAZETTE NOTICE NO. 2888 INVITATION OF PUBLIC COMMENTS PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environment Management Authority (NEMA) has received an environmental impact assessment study report for the implementation of the proposed development of liquefied petroleum gas storage and distribution. The proposed project will entail development of Liquefied Petroleum Gas Storage and Distribution comprising of the following infrastructure:
The proposed project site is located on Plot No. 209/10863 at off, Mombasa Road, Nairobi The project anticipates the impacts and mitigation measures set out in the gazette. The full report of the proposed project is available for inspection during working hours at:
The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the approval process of the project. A.M. KARIUKI, ![]() SUPPLEMENT NO. 11 LEGAL NOTICE NO. 21- The land Control Act – Exemption SUPPLEMENT No. 12 LEGAL NOTICE NO.
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Kenya Law Weekly Issue 097/2010
19 March 2010
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