1. Rule 13(1) of the Fair Administrative Action Rules provides that;
“Where an applicant intends to seek interim orders in a Judicial Review application to prohibit the Respondent from taking a specific administrative action or decision, or requiring the respondents to act in a certain way, the prayer for the interim relief shall be included as one of the reliefs in the originating motion Rule 14 on the other hand provides that the applicant may, during the pendency of Judicial Review proceedings under these Rules, apply for interlocutory orders”.
2. The applicant vide its originating motion dated 28/2/2025 sought for Judicial Review orders of certiorari to remove into this court and quash or set aside the decision of the Public Procurement Administrative Review Board made on 17/2/2025 and additionally, to prohibit the 2nd & 3rd Respondent from implementing the said decision which decision has the effect of proceeding to implement the performance of the contract dated 14/8/2024 entered into between the 2nd and 3rd Respondents and the Interested Party in respect to Tender No. KNBS/ONT/30/2023-2024 for provision of car hire services on as and when required basis.
3. Further, that a declaration be made that the said contract is null and void. As stated in my ruling of 4/3/2025, the applicant approached this court at the 12th hour and this court declined to grant an exparte interim relief and reserved that issue for consideration inter partes.
4. Both parties have now addressed the court on the merits/demerits of the prayer for stay/interim relief and the applicant has beseeched the court to consider granting an interim relief in the form of stay of implementation of the impugned decision whose effect is implementation on enforcement of the contract of 14/8/2024 which is sought to be nullified and which contract was the subject of the request for review proceedings before the Review Board; so as to preserve the substratum of these Judicial Proceedings.
5. The Interested Party & the 2nd & 3rd Respondents oppose the prayer for interim relief on account, among others, that the contract was already signed and hence there is nothing to be stayed.
6. Further, that stay is not in the purview of Rule 13 of Fair Administrative Action Rules on interim reliefs. Further, that the Review Board dismissed the request for review hence there is no positive order for stay to be granted by this court.
7. I have considered all the above arguments for and against the prayer for stay and the applicable legal provisions. The question is whether the prayer sought is merited.
8. My finding is that first, the interim relief as provided for in Rule 13 of Fair Administrative Action Rules can be in the form of a stay of implementation of the decision by requiring the Respondents to act in a certain way, not just a prohibition as submitted by Mr. Omollo Counsel for the Interested Party.
9. Additionally, Rule 13 must be read as a whole and together with Rule 14 of the Fair Administrative Action Rules. Second, is that Public Procurement & Asset Disposal matters are special matters and even where there is a negative order, incapable of stay, unlike in other ordinary civil suits except injunctions, from the pleadings and documents filed, there is indeed a contract signed on 14/8/2024 which was under challenge before Public Procurement Administrative Review Board and before this court.
10. It is the implementation of that contract which is impugned and therefore a stay can issue.
11. Third, is that the implementation of that contract will most likely render the exparte applicant a pious explorer in these judicial Proceedings and therefore this court will be acting in vain if at the end of it all, it finds that there is merit in the Judicial Review Application, as a contract once implemented cannot be reversed.
12. Forth is that since the negative order of dismissal of the request for review is pegged on the contract which was signed but not implemented and formed the basis of the request for review and these judicial proceedings, this court has power to stay the implementation or further implementation of the said contract noting that the subject contract is for car hire, on an as and when required basis.
13. Fifth is that the Respondents and the Interested Party shall not, and it has not been demonstrated that they will suffer any prejudice which cannot be compensated by an award of damages if the stay of implementation of that contract is granted. On the other hand, I am satisfied that the applicant’s Originating Motion shall be rendered nugatory if the contract is implemented, should the court find in their favour.
14. Finally, is that these proceedings are being conducted expeditiously without any delay hence, the contract can still be entered into if the decision is rendered against the exparte applicant.
15. Last but not least, is that the order for stay could have been granted by this court at the inception had the applicant approached this court expeditiously. Lessons learnt are that parties must never approach the court at the 11th or 12th hour. Delay defeats equity and equity aids the vigilant and not the indolent.
16. For all the above reasons, I find that the order that commends itself at this moment is to grant an interim relief of stay of implementation or further implementation of the contract signed on 14/8/2024 in respect of the tender No. KNBS/ONT/30/2023-2024 for provision of car hire services on as and when required basis between the 2nd & 3rd Respondents and Interested Party until this matter which is hereby fast-tracked is heard and concluded within the 45 days stipulated in law from date of inception.
17. Owing to the stringent statutory timelines in this matter, parties are directed to comply with directions as follows:
1. The Respondents and the Interested Party to file and serve their responses to the Originating Motion dated 28/2/2025 by close of business on 12/3/2025.
2. The Applicant to file and serve a further affidavit if any by close of business on 14/3/2025 together with written submissions upon which the Respondents and Interested Party have until close of business on 17/3/2025 to file and serve supplementary affidavits if any together with written submissions.
18. Mention on 18/3/2025 to fix a judgment date with brief highlights.
19. I so order.
Dated, Signed and Delivered at Nairobi this 11th Day of March, 2025