1. The Application that is before this court for determination is the Amended Originating Motion dated 5th September 2025 where the applicant is seeking the following orders;
1) …Spent
2) …Spent.
3) THAT pending the hearing and determination of the present Originating Motion, this Honourable Court be pleased to suspend the running of time of the tender validity period, in respect of Tender No. NG-CDFB/ RFP/ 02/ 2023- 2024- REQUEST FOR PROPOSAL TO UNDERTAKE SUPPLY, INSTALLATION, IMPLEMENTATION, TESTING, TRAINING, COMMISSIONING, AND MAINTENANCE OF AN INTEGRATED NG- CDF BOARD ENTERPRISE RESOURCE PLANNING (ERP) SOLUTION, scheduled to lapse on October 03, 2025, to allow the prosecution of the Originating Motion as well as to preserve the subject matter of the present Motion;
4) THAT this Honourable Court be pleased to compel the Accounting Officer, National Government Constituency Development Fund Board (NG-CDFB), the 1st Respondent to prepare, avail, and create a procurement contract in respect to Tender No. NG-CDFB/ RFP/ 02/ 2023- 2024- REQUEST FOR PROPOSAL TO UNDERTAKE SUPPLY, INSTALLATION, IMPLEMENTATION, TESTING, TRAINING, COMMISSIONING, AND MAINTENANCE OF AN INTEGRATED NG- CDF BOARD ENTERPRISE RESOURCE PLANNING (ERP) SOLUTION, in accordance with Sections 134 and 135 of the Public Procurement and Asset Disposal Act, 2015.
5) THAT this Honourable Court be pleased to compel compliance with Order No. 3 above, within 14 days after delivery of the Honourable Court's decision in the matter., or in any case, within the remainder period of the tender validity period; and
6) THAT this Honourable Court be pleased to award costs of the present Application to the Applicant.
The Applicants case;
2. It seeks to enforce multiple decisions of the Public Procurement Administrative Review Board (PPARB or Review Board) through the Application.
3. It is its case that on or about May 28, 2024, the 2nd Respondent/ Procuring Entity advertised the subject national tender, and invited bids to be submitted on or before June 07, 2024.
4. The Applicant acquired the published tender documents, which stipulated the terms of the open national tender process, as well as technical specifications and qualifications which the Procuring Entity deemed necessary for the Enterprise Resource Planning Solution sought after.
5. The tender documents stipulated the deadline for submission of bids, in respect of the subject tender, was June 07, 2024.
6. The tender validity period was prescribed for a period of 120 days, after the proposal submission deadline. The Applicant positively provided the required tender security. The Applicant prepared its bid for the subject tender, and submitted in the same in a timely manner.
7. On or about June 11, 2024, the Procuring Entity notified the Applicant of a system demonstration scheduled for June 13, 2024, at 2.15 PM, at the Applicant's premises.The system demonstration positively took place at the Applicant's premises on June 13 2024.
8. On or about June 14, 2024, the Procuring Entity notified the Applicant that it had successfully qualified for the financial evaluation stage, and thereby invited the Applicant for opening of the financial proposals. Shortly thereafter, the Procuring Entity notified the Applicant that it was the successful candidate, and that its bid for the subject tender had been accepted.
9. This notification similarly indicated the Procuring Entity's intention to enter into a contract subject to the Applicant accepting the award. The Notification to the Applicant as the successful candidate was dated June 14, 2024.On or about June 18, 2024, the Applicant conveyed its acceptance of the award of the tender.
10. On July 12, 2024, a candidate to the competitive tender process- Green com Enterprises Solutions Limited, lodged a Request for Review challenging the decision of the Procuring Entity cited as Request for Review Application No. 66 of 2024: Green Com Enterprises Solutions Limited vs. The Chief Executive Officer, National Government Constituencies Development Fund Board & 2 Others.
11. The Request for Review Application was determined vide a decision of the Board delivered on August 02, 2024.The Request for Review dated 12th July 2024 be and is hereby dismissed and The Respondent be and is hereby directed to proceed with the Tender to its logical conclusion.
12. It is its case that the decision has never been appealed to date, and therefore remains final and binding to all the parties. The only lawful and logical conclusion is the preparation and execution of contract, in line with the award decision.
13. It argues that the Procuring Entity has neglected, failed, and/ or refused to prepare the contract in line with the award decision, and enable execution of the contract leading to the lawful and logical conclusion of the subject contract.
14. The Applicant has reached out to the Procuring Entity seeking the lawful and logical conclusion of the tender process.
15. On October 25, 2024, the Applicant herein approached the Review Board, vide Application No. 108 of 2024, seeking an Order extending the tender validity period for a further period of 30 days to allow the lawful and logical conclusion of the tender proceedings, as well as an Order compelling or directing the Accounting Officer to ensure the logical conclusion of the tender process.
16. On November 15, 2024, the Public Procurement Administrative Review Board extended the tender validity period of the subject tender for a period of 30 days to allow for its logical conclusion.
17. The Orders of the PPARB, to extend the tender validity period, were exclusively to enable finalization of the ongoing investigations by the Public Procurement Regulatory Board (PPRB), as well as the lawful and logical conclusion of the tender.
18. The Review Board of November 15, 2024 has never been appealed, to date. As such, in accordance with Section 175 (1) of PPAD Act, the same is final and binding.The Respondents failed to abide by the decision of the Review Board.
19. On December 13, 2024, vide a Notice of Motion Application lodged before the Review Board and seeking intervention and enforcement of the Orders of the Review Board, the Applicant sought an Order extending the tender validity period for a further 130 days.
20. In a decision rendered in PPARB Notice of Motion Application No. 108 of 2024 delivered on November 15, 2024, the Public Procurement Administrative Review Board extended the tender validity period of the subject tender for a period of 30 days to allow for its logical conclusion.
21. The Orders of the PARB, to extend the tender validity period, were exclusively to enable finalization of the ongoing investigations by the Public Procurement Regulatory Board (PPRB), as well as the lawful and logical conclusion of the tender. The decision of the Review Board of November 15, 2024 has never been appealed, to date. As such, in accordance with Section 175 (1) of PPAD Act, the same is final and binding.
22. On December 13, 2024, vide a Notice of Motion Application lodged before the Review Board and seeking intervention and enforcement of the Orders of the Review Board, the Applicant sought an order extending the tender validity period for a further period of 120 days to allow the lawful and logical conclusion of the tender proceedings, as well as an order compelling or directing the Accounting officer to ensure the logical conclusion of the tender process.
23. In a decision rendered in PARB Notice of Motion Application No. 108 of 2024: Agile Business Solutions Limited vs. Accounting Officer, NGCDF, Board, & Another, and delivered on January 03, 2025, the Public Procurement Administrative Review Board extended the tender validity period for a period of 120 days, and issued a positive order directing the Accounting Officer, National Government Constituency Development Fund Board (NGCDF-B) to ensure that the tender process in relation to Tender No.: NG-.CDFB/RFP/02/2023-2024.
24. Request for Proposal to undertake Supply, Installation, Implementation, Testing, Training, Commissioning, and Maintenance of an Integrated NGCDF Board Enterprise Resource Planning (ERP) Solution is completed within the extended tender validity period (120 days).
25. In reaching this decision, the Review Board acknowledged that the Public Procurement Regulatory Board had finalized its investigations, and recommended the lawful and logical conclusion of the tender process.
26. The decision of the Review Board of January 03, 2025 has never been appealed, to date.As such, in accordance with Section 175 (1) of PPAD Act, the same is final and binding.The further extended tender validity period, the Respondents refused and failed to implement the decision of the Review Board.
27. The Applicant filed a third Notice of Motion Application dated May 15, 2024, the Applicant pleaded with the Public Procurement Administrative Review Board, being the specialist tribunal, to intervene and enforce its orders emanating from three (3) previous decisions.
28. In a decision rendered on June 06, 2025, the Public Procurement Administrative Review Board further (for a third time) extended the tender validity period of the subject tender for a further 120 day period, and re-affirmed its positive order directed to the Accounting Officer, National Government Constituency Development Fund Board (NGCDF-B) to ensure that the procurement contract in relation to Tender No.: NG-CDFB/RFP/02/2023-2024: Request for Proposal to undertake Supply, Installation, Implementation, Testing, Training, Commissioning, and Maintenance of an Integrated NGCDF Board Enterprise Resource Planning (ERP) Solution is executed within extended tender validity period.
29. It’s its case that the decision of the Review Board of June 06, 2025 has never been appealed, to date. As such, in accordance with Section 175 (1) of PPAD Act, the same is final and binding.The Applicant has since written to the Procuring Entity on July 28, 2025, demanding the compliance with the multiple decisions of the Review Board.
30. The decision of the Review Board delivered on June 06, 2025, the tender validity period is scheduled to lapse on October 03, 2025. The Applicant remains apprehensive, that despite the expedited hearing of the present proceedings, the tender validity period shall lapse before delivery of a decision in the matter.
31. The stipulation of Section 175 (1), Public Procurement and Asset Disposal Act, 2015, is in mandatory terms. Where a party is dissatisfied with a decision of a tribunal, the Law avails appropriate avenues to challenge the same.
32. There are no proceedings barring the Procuring Entity from preparing the contract in respect of the subject tender.There have been no termination or cancellation of procurement proceedings in the subject Tender, and the same cannot lawfully arise where the notification of tender award has been issued.
33. The procuring entity is in flagrant breach of the Law governing public procurement in the Republic of Kenya, in particular Section 135 of the Public Procurement and Asset Disposal Act, 2015.
The Applicants submissions:
34. A Notice of Intention to sue, dated July 28, 2025, was indeed issued prior to lodging of the present Application and it urges the Court to find that the 1st ground of opposition is a nonstarter, and as such should fall by the wayside.
35. The second ground of challenge is that the Applicant is estopped from commencing proceedings prior to the lapse of the tender validity period.
36. On this ground, we submit that the same is not only absurd but also unjustified. The Applicant takes the following position for the following reasons:
a. There is nothing in Law that estops a party from seeking reliefs as against an unlawful threatened action. However, in this matter, it is a continued prejudicial act of which the Applicant seeks relief from- the act of unlawfully_ and illegally winding down the tender validity period particularly in contravention of direct orders of the Public Procurement and Administrative Review Board (PPARB), and the Public Procurement Regulatory Authority (PPRA);
b. It submits that The Respondents have demonstrated a pattern of winding down the tender validity period, in direct disobedience of binding orders of tribunal with lawful and proper jurisdiction. Prior to instituting the present proceedings, the Respondents have resorted to this action on three (3) different occasions;
c. The Applicant had caused a Notice of intention to Sue to be served upon the Respondents. The same was ignored, and never responded to.
d. The tender validity period lapsed on or about October 03, 2025. As demonstrated from the Respondents' past conduct, the lawful and logical conclusion of the subject tender as ordered by the PPARB and PPRA was once again not satisfied.
37. Where the complained action is a continued breach of orders of institutions with proper and lawful jurisdiction, as well as continued disregard of positive law (Public Procurement and Asset Disposal Act), the Respondents cannot assert that institution of the present proceedings is premature.
38. Section 175 of the PPAD Act provide for the Appeal mechanism, where a party is aggrieved by the decision of the Public Procurement Administrative Review Board. Pursuant to the provisions of Section 175, a party aggrieved ought to lodge an Appeal within 14 days of the decision of the Review Board, failure to which the decision of the Review Board is final and binding. Further, the High Court is mandated to determine such appeal proceedings within 45 days of the same being properly filed.
39. The decisions of the Review Board, with the final decision rendered on June 06 2025 the Applicant herein was never the aggrieved party. In all the decisions of the Review Board, numbering four (4) thus far, the Applicant was the successful.
40. Therefore, where the Applicant is not the aggrieved party. The present proceedings seek to enforce decisions of the Review Board.
41. Where the 14 day period has elapsed, and pursuant to the provisions of Section 175 (1) the decisions of the Review Board have become final and binding.
42. The Applicant approaches this Honourable Court under Section 174 of the PPAD Act, particularly in order to enforce the decisions of the Review Board.
43. Under Section 174, the Applicant is not mandated to approach the Court within any timeline.
44. Despite these submissions, the Review Board in exercise of their discretion still persisted in issuing the Orders in the manner that they did.All decisions of the Review Board have not been appealed by the Respondents, in the manner prescribed under Section 175 of the PPAD Act.
45. The Applicant urges the Court to uphold the provisions of Section 175 (1) of the PPAD Act, and hold that the decisions of the Review Board are now final and binding.
46. Reliance is placed in the case of Aprim Consultants vs Parliamentary Service Commission & Another, Civil Appeal No. E309 of [2021] KECA 1090, the Court held:
i. 'A perusal of Section 175 of the Act reveals Parliament's unmistakable intention to constrict the time taken for the filing, hearing, and determination of public procurement disputes in keeping with the Act's avowed intent and object of expeditious resolution of those disputes;
ii. Parliament was thus fully engaged and intentional in setting the timelines in the Section. But it did not stop there. In one of the rarer instances where all discretion is totally shut out, Parliament expressly enacted a consequence to follow default or failure to file or to decide within the prescribed times: the decision of the Board would crystallize and be invested with finality.'
b. It also relies in the case of TSK Electronica Y Electridad S.A & Ansaldoenergiavs. PPARB & 3 Others, CA No. E102 of 2022, considering the timelines under Section 175 PPAD Act, the Court held:
i. 'These timelines are cast in stone and cannot be varied. The strict time frames under this section underscore the intention of Parliament to ensure that disputes relating to Public Procurement and Asset Disposal are disposed of expeditiously.'
c. In Kenya Ports Authority vs. Public Procurement Administrative Review Board & 2 Others (Civil Appeal 347 of 2017) [2024] KECA 1099 (KLR), a five judge Court of Appeal Bench pronounced itself on whether the timelines under Section 175 are unconstitutional, the Court held:
i. 'In a constitutional dispensation like ours that expressly guarantees its citizens that "justice shall not be delayed" (see article 159 (2)(b) of the Constitution), it is not readily apparent to us a clause that seeks to ensure disputes touching on a critical aspect of the national economy are resolved within stipulated time, can be said to be unconstitutional.'
The Respondents ’ Case;
47. The Respondents through its grounds of opposition argues that The Applicant did not issue a notice of intention to sue as provided under Rule 5 (1) of the Fair Administrative Action Rules, 2024.
48. The time for execution of the contract in respect of Tender No NG-CDFB/RFP/2023-2024 Request For Proposal To Undertake Supply, Installation, Implementation, Testing, Training, Commissioning And Maintenance Of An Integrated NG-CDF Board Enterprise Resource Planning (ERP) Solution (the Tender) as specified in the ruling of the Public Procurement Administrative Review Board (the Board) dated 6th June 2025 has not yet lapsed.
49. Therefore, pursuant to Rule 5 (3) and Rule 7 of the Fair Administrative Actions Rules, 2024, these proceedings are premature. The Application is an attempt to circumvent the requirements of Section 175 of the Public
50. Procurement and Asset Disposal Act which provides for judicial review of a decision of the Board within 14 days of the said decision. In this case the decision was delivered on 6thJune 2025, and the 14-day timeline has long since lapsed.
51. The 1st and the respondents also oppose the application through the replying affidavit of Yusuf Mbuno the 1st Respondent the Chief Executive Officer and Accounting Officer of the 2nd Respondent.
52. The 2nd Respondent issued a public tender notice for Tender No. NG-CDF/RFP/02/2023-2024 for Request for Proposal to Undertake Supply, Installation,Implementation, Testing, Training, Commissioning and Maintenance of an Integrated NGCDF Board Enterprise Resource Planning (ERP) Solution (hereinafter referred to as “the Tender”)inviting bids from interested bidders that was published in newspapers with nationwide circulation.
53. The 2nd Respondent argues that it followed the tender process as prescribed by the Public Procurement and Asset Disposal Act (the PPAD Act) and the Public Procurement and Asset Disposal Rules made under the Act.
54. The Applicant was the successful bidder, and the Respondents issued a notification to that effect to the Applicant by letter dated 14th June 2024.
55. Since issuance of the Award Letter, there have been subsequent proceedings involving the Respondents and between the Applicant and the Respondents before the Public Procurement Administrative Review Board (the Board) as follows:
a. A request for review of the tender process was filed before the Board in PPARB Application 66 of 2024 Greencom Enterprise Solutions Ltd v NGCDF on 12th July 2024.
56. A decision was delivered by the Board on 2nd August 2024 which dismissed the request for review filed in that matter and directed that the Tender proceeds to its logical conclusion.
57. A request for review in PPARB Application No.92 of 2024 Agile Business Solutions Limited v NGCDF which the Applicant withdrew by a Notice of Withdrawal dated 2nd October 2024.
58. A request for review in PPARB Application No.108 of 2024 Agile Business Solutions Limited v NGCDF. The Board rendered a decision dated 3rd December 2025 but delivered on 3rd January 2025 directing the Respondent to ensure that the procurement process in respect of the Tender is lawfully and logically concluded within 120 days.
59. A Notice of Motion Application dated 15th May 2025 filed by the Applicant before the Board on 16th May 2025 in PPARB Application No.108 of 2024 Agile Business Solutions Limited v NGCDF seeking an extension of the Tender validity period for a further 120 days. The Board delivered a decision on 6th June 2025 directing the Respondent to issue a contract in respect of the Tender within 120 days of the decision which will lapse on 4th October 2025.
60. The decision of the Board delivered on 6th June 2025, the Board issued orders for signing of a contract in respect of the Tender. These orders had not been sought in the Applicant’s Notice of Motion Application dated 15th May 2025.
61. It is their case that the Applicant had only asked for an extension of the Tender validity period to allow for its lawful and logical conclusion. The Board acted ultra vires in issuing orders that the Applicant did not seek.
62. It is their case that Contrary to the Applicant’s assertions in the Application, the Respondents have not refused to abide by the decisions of the Board but rather, the implementation of these decisions and the lawful and logical conclusion of the procurement process in respect of the Tender has been completely and utterly frustrated due to circumstances outside of their control.
63. By judgment entered by the High Court in HCCPET No.178 of 2016 on 20th September 2024, the High Court issued certain orders including declaring the existence of the 2nd Respondent unconstitutional and ordering that the 2nd Respondent cease operations by the stroke of midnight on 30th June 2026.
64. The decision of the High Court is the subject of an appeal in the Court of Appeal in Nairobi Civil Appeal E868 of 2024. The Court of Appeal has not yet delivered its decision on the appeal and as it stands, the decision of the High Court ordering cessation of operations on 30th June 2026, remains in force.
65. They argue that in view of this, the Tender cannot be concluded or implemented as 2 years out of the 3-year period for which it was intended for have already lapsed and the existence of the 2nd Respondent beyond that time remains uncertain and is the subject of ongoing litigation.
66. Article 201 (d) of the Constitution requires the 2nd Respondent, which is a public entity, to utilize funds in a prudent and responsible way. In view of the lapse of time in respect of the period for which the ERP was intended and the fact that moving forward there is no certainty as to the future and/or substantive determination on continued existence of the 2nd Respondent, the 2nd Respondent cannot reasonably or in good conscience commit public funds towards implementation of the Tender.
67. They argue that in view of this decision of the High Court which has not been stayed and remains in force the implementation of the ERP system that is the subject of the Tender is not viable at present.
68. The ERP system subject matter of the tender was intended to facilitate operational efficiency and automate functional requirements necessary for the management of the 2nd Respondent, which include operations at the Head Office and 290 constituencies. This was therefore for all intents and purposes a system that was intended to be utilized long-term and over a long period of time.
69. They argue that in view of the potential cessation of operations in June 2026 the intended objective and purpose for implementation of the ERP system lacks viability; utility; necessity; relevance; and is rendered redundant. The implementation of such complex and resource-intensive system, in the present legal circumstances would serve no practical purpose. The same would not be justifiable or prudent and would constitute a misallocation of public resources.
70. They rely on Section 3 (e) of the PPAD Act provides that Public procurement and asset disposal by State organs and public entities shall be guided by the following values and principles of the Constitution and relevant legislation the principles of public finance under Article 201.
71. Article 201 of the Constitution referred to in the said provision requires that public money shall be used in a prudent and responsible way.
72. Section 68 (1) of The Public Finance Management [PFM] Act CAP 412A, places responsibility on the 1st Respondent as the Accounting Officer for the 2nd Respondent to ensure that resources of the 2nd Respondent are used in a way that is-
(a) Lawful and authorized; and
(b) Effective, efficient, economical and transparent.
73. They invoke Regulation 23 (2) (e) of the PFM [National Government] Regulations 2015 places further responsibilities on the Accounting Officer to take into account all relevant financial considerations, including issues of propriety, regularity and value for money, where policy proposals affecting the Accounting Officer's responsibilities are considered.
74. It is further their case that the RFP, the initial contract period was 3 years. Reckoning time from the date of the Award Letter, over 1 year has already lapsed. In view of the lapse of time in respect of the period within which the ERP was intended to be implemented ,and the fact that moving forward there is no certainty as to the future and/or continued existence of the 2nd Respondent,
75. The 2nd Respondent cannot reasonably or in good conscience commit public funds towards implementation of the Tender. Implementation of the ERP system fails the test on prudent fiscal management of public resources under Article 201 of the Constitution and provisions of the PFM Act and its Regulations.
76. They also argue that pursuant to a directive by the Executive to implement austerity measures across all government entities the Respondents were called to a meeting with the National Treasury in the course of September 2024 to discuss its budget allocation.
77. This was after the notification of the award had been issued to the Applicant. A decision was taken by the National Treasury to completely remove capital expenditure from the 2nd Respondent’s budget which was intended to cover the ERP system required under the Tender. With the significant reduction in budget, the 1st Respondent is unable to complete the Tender process as there is no funding allocated to this.
78. Thereafter, the 2nd Respondent in good faith requested the National Treasury to reconsider the request for approval of a budget for purposes of the ERP. The National Treasury gave its feedback and declined to approve the request to reconsider the budgetary changes in view of the uncertainty of the future of the 2nd Respondent.
79. The orders sought by the Applicant herein if granted will result in the Respondents being forced to sign a contract for implementation of the Tender in violation of the provisions of the law as set out in Regulation 23 (2) (g) of the PFM [National Government] Regulations 2015.
80. This according to them would be an absurdity as this Honourable Court cannot make an order that violates the express provisions of the law.
81. The Respondents submit that in view of the supervening events detailed above and the uncertainty of the future of the 2nd Respondent, is clear that the conclusion by preparation and execution of a contract for implementation of the Tender has been completely and irretrievably frustrated by such events that the Respondents could not have reasonably foreseen and that were outside the Respondents’ control. Consequently, the Tender validity period should not be extended to allow for conclusion of the Tender as doing so would create an absurdity and undue burden and hardship on the 2nd Respondent.
82. The future and/or continued existence of the 2nd Respondent remains uncertain and is the subject of ongoing litigation. Pending an outcome from the Court of Appeal, the decision of the High Court remains in force that the 2nd Respondent is required to cease operations on 30th June 2026.
83. They argue that it would be imprudent and irresponsible of the 2nd Respondent to commit public funds to the conclusion and implementation of the Tender in view of the significant time lapse and the uncertainty of its future detailed above.
84. In September 2024 the National Treasury declined to approve the 2nd Respondent’s proposed budget for the ERP that is the subject of the Tender in line with the executive directive to implement austerity measures. Thereafter, the 2nd Respondent in good faith sought a review of that decision. The National Treasury has once again declined to approve the proposed budget for the implementation of the Tender.
85. It is their case that there are no funds allocated to implementation of the Tender in the 2nd Respondent’s budget and therefore conclusion and implementation of the Tender is impossible in any event.
The Respondents submissions;
86. They submit that in the decision of the Board delivered on 6th June 2025, the Board issued orders for signing of a contract in respect of the Tender.
87. These orders had not been sought in the Applicant’s Notice of Motion Application dated 15th May 2025 that was the subject of the decision as the Applicant had only asked for an extension of the Tender validity period to allow for its lawful and logical conclusion. It submits that the Board acted ultra vires in issuing orders that the Applicant did not seek.
88. Reliance is placed in Republic v Judicial Commission of Inquiry Into the Goldenberg Affair 3 others Ex Parte Mwalulu 8 others 2004 KEHC1337(KLR) upheld the position that where an administrative body has made a decision ultra vires, the only recourse is to quash such a decision. In making this finding the court held that:
We find that it would be serious abdication of jurisdiction and powers of this court if we were to shy away from quashing a nullity because in essence the doctrine of ultra vires permits the courts to strike down decisions or acts made or done by bodies exercising public functions which
[...truncated]
1) …Spent
2) …Spent.
3) THAT pending the hearing and determination of the present Originating Motion, this Honourable Court be pleased to suspend the running of time of the tender validity period, in respect of Tender No. NG-CDFB/ RFP/ 02/ 2023- 2024- REQUEST FOR PROPOSAL TO UNDERTAKE SUPPLY, INSTALLATION, IMPLEMENTATION, TESTING, TRAINING, COMMISSIONING, AND MAINTENANCE OF AN INTEGRATED NG- CDF BOARD ENTERPRISE RESOURCE PLANNING (ERP) SOLUTION, scheduled to lapse on October 03, 2025, to allow the prosecution of the Originating Motion as well as to preserve the subject matter of the present Motion;
4) THAT this Honourable Court be pleased to compel the Accounting Officer, National Government Constituency Development Fund Board (NG-CDFB), the 1st Respondent to prepare, avail, and create a procurement contract in respect to Tender No. NG-CDFB/ RFP/ 02/ 2023- 2024- REQUEST FOR PROPOSAL TO UNDERTAKE SUPPLY, INSTALLATION, IMPLEMENTATION, TESTING, TRAINING, COMMISSIONING, AND MAINTENANCE OF AN INTEGRATED NG- CDF BOARD ENTERPRISE RESOURCE PLANNING (ERP) SOLUTION, in accordance with Sections 134 and 135 of the Public Procurement and Asset Disposal Act, 2015.
5) THAT this Honourable Court be pleased to compel compliance with Order No. 3 above, within 14 days after delivery of the Honourable Court's decision in the matter., or in any case, within the remainder period of the tender validity period; and
6) THAT this Honourable Court be pleased to award costs of the present Application to the Applicant.
The Applicants case;
2. It seeks to enforce multiple decisions of the Public Procurement Administrative Review Board (PPARB or Review Board) through the Application.
3. It is its case that on or about May 28, 2024, the 2nd Respondent/ Procuring Entity advertised the subject national tender, and invited bids to be submitted on or before June 07, 2024.
4. The Applicant acquired the published tender documents, which stipulated the terms of the open national tender process, as well as technical specifications and qualifications which the Procuring Entity deemed necessary for the Enterprise Resource Planning Solution sought after.
5. The tender documents stipulated the deadline for submission of bids, in respect of the subject tender, was June 07, 2024.
6. The tender validity period was prescribed for a period of 120 days, after the proposal submission deadline. The Applicant positively provided the required tender security. The Applicant prepared its bid for the subject tender, and submitted in the same in a timely manner.
7. On or about June 11, 2024, the Procuring Entity notified the Applicant of a system demonstration scheduled for June 13, 2024, at 2.15 PM, at the Applicant's premises.The system demonstration positively took place at the Applicant's premises on June 13 2024.
8. On or about June 14, 2024, the Procuring Entity notified the Applicant that it had successfully qualified for the financial evaluation stage, and thereby invited the Applicant for opening of the financial proposals. Shortly thereafter, the Procuring Entity notified the Applicant that it was the successful candidate, and that its bid for the subject tender had been accepted.
9. This notification similarly indicated the Procuring Entity's intention to enter into a contract subject to the Applicant accepting the award. The Notification to the Applicant as the successful candidate was dated June 14, 2024.On or about June 18, 2024, the Applicant conveyed its acceptance of the award of the tender.
10. On July 12, 2024, a candidate to the competitive tender process- Green com Enterprises Solutions Limited, lodged a Request for Review challenging the decision of the Procuring Entity cited as Request for Review Application No. 66 of 2024: Green Com Enterprises Solutions Limited vs. The Chief Executive Officer, National Government Constituencies Development Fund Board & 2 Others.
11. The Request for Review Application was determined vide a decision of the Board delivered on August 02, 2024.The Request for Review dated 12th July 2024 be and is hereby dismissed and The Respondent be and is hereby directed to proceed with the Tender to its logical conclusion.
12. It is its case that the decision has never been appealed to date, and therefore remains final and binding to all the parties. The only lawful and logical conclusion is the preparation and execution of contract, in line with the award decision.
13. It argues that the Procuring Entity has neglected, failed, and/ or refused to prepare the contract in line with the award decision, and enable execution of the contract leading to the lawful and logical conclusion of the subject contract.
14. The Applicant has reached out to the Procuring Entity seeking the lawful and logical conclusion of the tender process.
15. On October 25, 2024, the Applicant herein approached the Review Board, vide Application No. 108 of 2024, seeking an Order extending the tender validity period for a further period of 30 days to allow the lawful and logical conclusion of the tender proceedings, as well as an Order compelling or directing the Accounting Officer to ensure the logical conclusion of the tender process.
16. On November 15, 2024, the Public Procurement Administrative Review Board extended the tender validity period of the subject tender for a period of 30 days to allow for its logical conclusion.
17. The Orders of the PPARB, to extend the tender validity period, were exclusively to enable finalization of the ongoing investigations by the Public Procurement Regulatory Board (PPRB), as well as the lawful and logical conclusion of the tender.
18. The Review Board of November 15, 2024 has never been appealed, to date. As such, in accordance with Section 175 (1) of PPAD Act, the same is final and binding.The Respondents failed to abide by the decision of the Review Board.
19. On December 13, 2024, vide a Notice of Motion Application lodged before the Review Board and seeking intervention and enforcement of the Orders of the Review Board, the Applicant sought an Order extending the tender validity period for a further 130 days.
20. In a decision rendered in PPARB Notice of Motion Application No. 108 of 2024 delivered on November 15, 2024, the Public Procurement Administrative Review Board extended the tender validity period of the subject tender for a period of 30 days to allow for its logical conclusion.
21. The Orders of the PARB, to extend the tender validity period, were exclusively to enable finalization of the ongoing investigations by the Public Procurement Regulatory Board (PPRB), as well as the lawful and logical conclusion of the tender. The decision of the Review Board of November 15, 2024 has never been appealed, to date. As such, in accordance with Section 175 (1) of PPAD Act, the same is final and binding.
22. On December 13, 2024, vide a Notice of Motion Application lodged before the Review Board and seeking intervention and enforcement of the Orders of the Review Board, the Applicant sought an order extending the tender validity period for a further period of 120 days to allow the lawful and logical conclusion of the tender proceedings, as well as an order compelling or directing the Accounting officer to ensure the logical conclusion of the tender process.
23. In a decision rendered in PARB Notice of Motion Application No. 108 of 2024: Agile Business Solutions Limited vs. Accounting Officer, NGCDF, Board, & Another, and delivered on January 03, 2025, the Public Procurement Administrative Review Board extended the tender validity period for a period of 120 days, and issued a positive order directing the Accounting Officer, National Government Constituency Development Fund Board (NGCDF-B) to ensure that the tender process in relation to Tender No.: NG-.CDFB/RFP/02/2023-2024.
24. Request for Proposal to undertake Supply, Installation, Implementation, Testing, Training, Commissioning, and Maintenance of an Integrated NGCDF Board Enterprise Resource Planning (ERP) Solution is completed within the extended tender validity period (120 days).
25. In reaching this decision, the Review Board acknowledged that the Public Procurement Regulatory Board had finalized its investigations, and recommended the lawful and logical conclusion of the tender process.
26. The decision of the Review Board of January 03, 2025 has never been appealed, to date.As such, in accordance with Section 175 (1) of PPAD Act, the same is final and binding.The further extended tender validity period, the Respondents refused and failed to implement the decision of the Review Board.
27. The Applicant filed a third Notice of Motion Application dated May 15, 2024, the Applicant pleaded with the Public Procurement Administrative Review Board, being the specialist tribunal, to intervene and enforce its orders emanating from three (3) previous decisions.
28. In a decision rendered on June 06, 2025, the Public Procurement Administrative Review Board further (for a third time) extended the tender validity period of the subject tender for a further 120 day period, and re-affirmed its positive order directed to the Accounting Officer, National Government Constituency Development Fund Board (NGCDF-B) to ensure that the procurement contract in relation to Tender No.: NG-CDFB/RFP/02/2023-2024: Request for Proposal to undertake Supply, Installation, Implementation, Testing, Training, Commissioning, and Maintenance of an Integrated NGCDF Board Enterprise Resource Planning (ERP) Solution is executed within extended tender validity period.
29. It’s its case that the decision of the Review Board of June 06, 2025 has never been appealed, to date. As such, in accordance with Section 175 (1) of PPAD Act, the same is final and binding.The Applicant has since written to the Procuring Entity on July 28, 2025, demanding the compliance with the multiple decisions of the Review Board.
30. The decision of the Review Board delivered on June 06, 2025, the tender validity period is scheduled to lapse on October 03, 2025. The Applicant remains apprehensive, that despite the expedited hearing of the present proceedings, the tender validity period shall lapse before delivery of a decision in the matter.
31. The stipulation of Section 175 (1), Public Procurement and Asset Disposal Act, 2015, is in mandatory terms. Where a party is dissatisfied with a decision of a tribunal, the Law avails appropriate avenues to challenge the same.
32. There are no proceedings barring the Procuring Entity from preparing the contract in respect of the subject tender.There have been no termination or cancellation of procurement proceedings in the subject Tender, and the same cannot lawfully arise where the notification of tender award has been issued.
33. The procuring entity is in flagrant breach of the Law governing public procurement in the Republic of Kenya, in particular Section 135 of the Public Procurement and Asset Disposal Act, 2015.
The Applicants submissions:
34. A Notice of Intention to sue, dated July 28, 2025, was indeed issued prior to lodging of the present Application and it urges the Court to find that the 1st ground of opposition is a nonstarter, and as such should fall by the wayside.
35. The second ground of challenge is that the Applicant is estopped from commencing proceedings prior to the lapse of the tender validity period.
36. On this ground, we submit that the same is not only absurd but also unjustified. The Applicant takes the following position for the following reasons:
a. There is nothing in Law that estops a party from seeking reliefs as against an unlawful threatened action. However, in this matter, it is a continued prejudicial act of which the Applicant seeks relief from- the act of unlawfully_ and illegally winding down the tender validity period particularly in contravention of direct orders of the Public Procurement and Administrative Review Board (PPARB), and the Public Procurement Regulatory Authority (PPRA);
b. It submits that The Respondents have demonstrated a pattern of winding down the tender validity period, in direct disobedience of binding orders of tribunal with lawful and proper jurisdiction. Prior to instituting the present proceedings, the Respondents have resorted to this action on three (3) different occasions;
c. The Applicant had caused a Notice of intention to Sue to be served upon the Respondents. The same was ignored, and never responded to.
d. The tender validity period lapsed on or about October 03, 2025. As demonstrated from the Respondents' past conduct, the lawful and logical conclusion of the subject tender as ordered by the PPARB and PPRA was once again not satisfied.
37. Where the complained action is a continued breach of orders of institutions with proper and lawful jurisdiction, as well as continued disregard of positive law (Public Procurement and Asset Disposal Act), the Respondents cannot assert that institution of the present proceedings is premature.
38. Section 175 of the PPAD Act provide for the Appeal mechanism, where a party is aggrieved by the decision of the Public Procurement Administrative Review Board. Pursuant to the provisions of Section 175, a party aggrieved ought to lodge an Appeal within 14 days of the decision of the Review Board, failure to which the decision of the Review Board is final and binding. Further, the High Court is mandated to determine such appeal proceedings within 45 days of the same being properly filed.
39. The decisions of the Review Board, with the final decision rendered on June 06 2025 the Applicant herein was never the aggrieved party. In all the decisions of the Review Board, numbering four (4) thus far, the Applicant was the successful.
40. Therefore, where the Applicant is not the aggrieved party. The present proceedings seek to enforce decisions of the Review Board.
41. Where the 14 day period has elapsed, and pursuant to the provisions of Section 175 (1) the decisions of the Review Board have become final and binding.
42. The Applicant approaches this Honourable Court under Section 174 of the PPAD Act, particularly in order to enforce the decisions of the Review Board.
43. Under Section 174, the Applicant is not mandated to approach the Court within any timeline.
44. Despite these submissions, the Review Board in exercise of their discretion still persisted in issuing the Orders in the manner that they did.All decisions of the Review Board have not been appealed by the Respondents, in the manner prescribed under Section 175 of the PPAD Act.
45. The Applicant urges the Court to uphold the provisions of Section 175 (1) of the PPAD Act, and hold that the decisions of the Review Board are now final and binding.
46. Reliance is placed in the case of Aprim Consultants vs Parliamentary Service Commission & Another, Civil Appeal No. E309 of [2021] KECA 1090, the Court held:
i. 'A perusal of Section 175 of the Act reveals Parliament's unmistakable intention to constrict the time taken for the filing, hearing, and determination of public procurement disputes in keeping with the Act's avowed intent and object of expeditious resolution of those disputes;
ii. Parliament was thus fully engaged and intentional in setting the timelines in the Section. But it did not stop there. In one of the rarer instances where all discretion is totally shut out, Parliament expressly enacted a consequence to follow default or failure to file or to decide within the prescribed times: the decision of the Board would crystallize and be invested with finality.'
b. It also relies in the case of TSK Electronica Y Electridad S.A & Ansaldoenergiavs. PPARB & 3 Others, CA No. E102 of 2022, considering the timelines under Section 175 PPAD Act, the Court held:
i. 'These timelines are cast in stone and cannot be varied. The strict time frames under this section underscore the intention of Parliament to ensure that disputes relating to Public Procurement and Asset Disposal are disposed of expeditiously.'
c. In Kenya Ports Authority vs. Public Procurement Administrative Review Board & 2 Others (Civil Appeal 347 of 2017) [2024] KECA 1099 (KLR), a five judge Court of Appeal Bench pronounced itself on whether the timelines under Section 175 are unconstitutional, the Court held:
i. 'In a constitutional dispensation like ours that expressly guarantees its citizens that "justice shall not be delayed" (see article 159 (2)(b) of the Constitution), it is not readily apparent to us a clause that seeks to ensure disputes touching on a critical aspect of the national economy are resolved within stipulated time, can be said to be unconstitutional.'
The Respondents ’ Case;
47. The Respondents through its grounds of opposition argues that The Applicant did not issue a notice of intention to sue as provided under Rule 5 (1) of the Fair Administrative Action Rules, 2024.
48. The time for execution of the contract in respect of Tender No NG-CDFB/RFP/2023-2024 Request For Proposal To Undertake Supply, Installation, Implementation, Testing, Training, Commissioning And Maintenance Of An Integrated NG-CDF Board Enterprise Resource Planning (ERP) Solution (the Tender) as specified in the ruling of the Public Procurement Administrative Review Board (the Board) dated 6th June 2025 has not yet lapsed.
49. Therefore, pursuant to Rule 5 (3) and Rule 7 of the Fair Administrative Actions Rules, 2024, these proceedings are premature. The Application is an attempt to circumvent the requirements of Section 175 of the Public
50. Procurement and Asset Disposal Act which provides for judicial review of a decision of the Board within 14 days of the said decision. In this case the decision was delivered on 6thJune 2025, and the 14-day timeline has long since lapsed.
51. The 1st and the respondents also oppose the application through the replying affidavit of Yusuf Mbuno the 1st Respondent the Chief Executive Officer and Accounting Officer of the 2nd Respondent.
52. The 2nd Respondent issued a public tender notice for Tender No. NG-CDF/RFP/02/2023-2024 for Request for Proposal to Undertake Supply, Installation,Implementation, Testing, Training, Commissioning and Maintenance of an Integrated NGCDF Board Enterprise Resource Planning (ERP) Solution (hereinafter referred to as “the Tender”)inviting bids from interested bidders that was published in newspapers with nationwide circulation.
53. The 2nd Respondent argues that it followed the tender process as prescribed by the Public Procurement and Asset Disposal Act (the PPAD Act) and the Public Procurement and Asset Disposal Rules made under the Act.
54. The Applicant was the successful bidder, and the Respondents issued a notification to that effect to the Applicant by letter dated 14th June 2024.
55. Since issuance of the Award Letter, there have been subsequent proceedings involving the Respondents and between the Applicant and the Respondents before the Public Procurement Administrative Review Board (the Board) as follows:
a. A request for review of the tender process was filed before the Board in PPARB Application 66 of 2024 Greencom Enterprise Solutions Ltd v NGCDF on 12th July 2024.
56. A decision was delivered by the Board on 2nd August 2024 which dismissed the request for review filed in that matter and directed that the Tender proceeds to its logical conclusion.
57. A request for review in PPARB Application No.92 of 2024 Agile Business Solutions Limited v NGCDF which the Applicant withdrew by a Notice of Withdrawal dated 2nd October 2024.
58. A request for review in PPARB Application No.108 of 2024 Agile Business Solutions Limited v NGCDF. The Board rendered a decision dated 3rd December 2025 but delivered on 3rd January 2025 directing the Respondent to ensure that the procurement process in respect of the Tender is lawfully and logically concluded within 120 days.
59. A Notice of Motion Application dated 15th May 2025 filed by the Applicant before the Board on 16th May 2025 in PPARB Application No.108 of 2024 Agile Business Solutions Limited v NGCDF seeking an extension of the Tender validity period for a further 120 days. The Board delivered a decision on 6th June 2025 directing the Respondent to issue a contract in respect of the Tender within 120 days of the decision which will lapse on 4th October 2025.
60. The decision of the Board delivered on 6th June 2025, the Board issued orders for signing of a contract in respect of the Tender. These orders had not been sought in the Applicant’s Notice of Motion Application dated 15th May 2025.
61. It is their case that the Applicant had only asked for an extension of the Tender validity period to allow for its lawful and logical conclusion. The Board acted ultra vires in issuing orders that the Applicant did not seek.
62. It is their case that Contrary to the Applicant’s assertions in the Application, the Respondents have not refused to abide by the decisions of the Board but rather, the implementation of these decisions and the lawful and logical conclusion of the procurement process in respect of the Tender has been completely and utterly frustrated due to circumstances outside of their control.
63. By judgment entered by the High Court in HCCPET No.178 of 2016 on 20th September 2024, the High Court issued certain orders including declaring the existence of the 2nd Respondent unconstitutional and ordering that the 2nd Respondent cease operations by the stroke of midnight on 30th June 2026.
64. The decision of the High Court is the subject of an appeal in the Court of Appeal in Nairobi Civil Appeal E868 of 2024. The Court of Appeal has not yet delivered its decision on the appeal and as it stands, the decision of the High Court ordering cessation of operations on 30th June 2026, remains in force.
65. They argue that in view of this, the Tender cannot be concluded or implemented as 2 years out of the 3-year period for which it was intended for have already lapsed and the existence of the 2nd Respondent beyond that time remains uncertain and is the subject of ongoing litigation.
66. Article 201 (d) of the Constitution requires the 2nd Respondent, which is a public entity, to utilize funds in a prudent and responsible way. In view of the lapse of time in respect of the period for which the ERP was intended and the fact that moving forward there is no certainty as to the future and/or substantive determination on continued existence of the 2nd Respondent, the 2nd Respondent cannot reasonably or in good conscience commit public funds towards implementation of the Tender.
67. They argue that in view of this decision of the High Court which has not been stayed and remains in force the implementation of the ERP system that is the subject of the Tender is not viable at present.
68. The ERP system subject matter of the tender was intended to facilitate operational efficiency and automate functional requirements necessary for the management of the 2nd Respondent, which include operations at the Head Office and 290 constituencies. This was therefore for all intents and purposes a system that was intended to be utilized long-term and over a long period of time.
69. They argue that in view of the potential cessation of operations in June 2026 the intended objective and purpose for implementation of the ERP system lacks viability; utility; necessity; relevance; and is rendered redundant. The implementation of such complex and resource-intensive system, in the present legal circumstances would serve no practical purpose. The same would not be justifiable or prudent and would constitute a misallocation of public resources.
70. They rely on Section 3 (e) of the PPAD Act provides that Public procurement and asset disposal by State organs and public entities shall be guided by the following values and principles of the Constitution and relevant legislation the principles of public finance under Article 201.
71. Article 201 of the Constitution referred to in the said provision requires that public money shall be used in a prudent and responsible way.
72. Section 68 (1) of The Public Finance Management [PFM] Act CAP 412A, places responsibility on the 1st Respondent as the Accounting Officer for the 2nd Respondent to ensure that resources of the 2nd Respondent are used in a way that is-
(a) Lawful and authorized; and
(b) Effective, efficient, economical and transparent.
73. They invoke Regulation 23 (2) (e) of the PFM [National Government] Regulations 2015 places further responsibilities on the Accounting Officer to take into account all relevant financial considerations, including issues of propriety, regularity and value for money, where policy proposals affecting the Accounting Officer's responsibilities are considered.
74. It is further their case that the RFP, the initial contract period was 3 years. Reckoning time from the date of the Award Letter, over 1 year has already lapsed. In view of the lapse of time in respect of the period within which the ERP was intended to be implemented ,and the fact that moving forward there is no certainty as to the future and/or continued existence of the 2nd Respondent,
75. The 2nd Respondent cannot reasonably or in good conscience commit public funds towards implementation of the Tender. Implementation of the ERP system fails the test on prudent fiscal management of public resources under Article 201 of the Constitution and provisions of the PFM Act and its Regulations.
76. They also argue that pursuant to a directive by the Executive to implement austerity measures across all government entities the Respondents were called to a meeting with the National Treasury in the course of September 2024 to discuss its budget allocation.
77. This was after the notification of the award had been issued to the Applicant. A decision was taken by the National Treasury to completely remove capital expenditure from the 2nd Respondent’s budget which was intended to cover the ERP system required under the Tender. With the significant reduction in budget, the 1st Respondent is unable to complete the Tender process as there is no funding allocated to this.
78. Thereafter, the 2nd Respondent in good faith requested the National Treasury to reconsider the request for approval of a budget for purposes of the ERP. The National Treasury gave its feedback and declined to approve the request to reconsider the budgetary changes in view of the uncertainty of the future of the 2nd Respondent.
79. The orders sought by the Applicant herein if granted will result in the Respondents being forced to sign a contract for implementation of the Tender in violation of the provisions of the law as set out in Regulation 23 (2) (g) of the PFM [National Government] Regulations 2015.
80. This according to them would be an absurdity as this Honourable Court cannot make an order that violates the express provisions of the law.
81. The Respondents submit that in view of the supervening events detailed above and the uncertainty of the future of the 2nd Respondent, is clear that the conclusion by preparation and execution of a contract for implementation of the Tender has been completely and irretrievably frustrated by such events that the Respondents could not have reasonably foreseen and that were outside the Respondents’ control. Consequently, the Tender validity period should not be extended to allow for conclusion of the Tender as doing so would create an absurdity and undue burden and hardship on the 2nd Respondent.
82. The future and/or continued existence of the 2nd Respondent remains uncertain and is the subject of ongoing litigation. Pending an outcome from the Court of Appeal, the decision of the High Court remains in force that the 2nd Respondent is required to cease operations on 30th June 2026.
83. They argue that it would be imprudent and irresponsible of the 2nd Respondent to commit public funds to the conclusion and implementation of the Tender in view of the significant time lapse and the uncertainty of its future detailed above.
84. In September 2024 the National Treasury declined to approve the 2nd Respondent’s proposed budget for the ERP that is the subject of the Tender in line with the executive directive to implement austerity measures. Thereafter, the 2nd Respondent in good faith sought a review of that decision. The National Treasury has once again declined to approve the proposed budget for the implementation of the Tender.
85. It is their case that there are no funds allocated to implementation of the Tender in the 2nd Respondent’s budget and therefore conclusion and implementation of the Tender is impossible in any event.
The Respondents submissions;
86. They submit that in the decision of the Board delivered on 6th June 2025, the Board issued orders for signing of a contract in respect of the Tender.
87. These orders had not been sought in the Applicant’s Notice of Motion Application dated 15th May 2025 that was the subject of the decision as the Applicant had only asked for an extension of the Tender validity period to allow for its lawful and logical conclusion. It submits that the Board acted ultra vires in issuing orders that the Applicant did not seek.
88. Reliance is placed in Republic v Judicial Commission of Inquiry Into the Goldenberg Affair 3 others Ex Parte Mwalulu 8 others 2004 KEHC1337(KLR) upheld the position that where an administrative body has made a decision ultra vires, the only recourse is to quash such a decision. In making this finding the court held that:
We find that it would be serious abdication of jurisdiction and powers of this court if we were to shy away from quashing a nullity because in essence the doctrine of ultra vires permits the courts to strike down decisions or acts made or done by bodies exercising public functions which
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