REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW MISCELLANEOUS APPLICATION NO. E 135 OF 2023
BETWEEN
REPUBLIC ……………………………………………….. APPLICANT
AND
THE PRINCIPAL SECRETARY,
THE NATIONAL TREASURY & ECONOMIC PLANNING…………………… 1ST RESPONDENT
THE NATIONAL TREASURY & ECONOMIC PLANNING…….2ND RESPONDENT
THE HONOURABLE ATTORNEY GENERAL …………………..3RD RESPONDENT
AND
M/S GAPS TECH SOLUTIONS LIMITED ……………………...INTERESTED PARTY
VS
M/S CORPRISK AFRICA LIMITED…………………….. EX- PARTE APPLICANT
JUDGMENT
1. The application that is before this court for determination is the one dated 11th December 2023 wherein the applicant is seeking orders that:
(a) This Honorable Court issues an order of CERTIORARI quashing the notification to award the subject tender dated 23rd November 2023 by the 1st and 2nd Respondent to the Interested Party.
(b) This Honorable Court issues an order of CERTIORARI quashing the declaration of the Ex-parte Applicant‘s bid as non-responsive in its letter dated 28th November 2023.
(c) This Honorable Court issues an order of MANDAMUS compelling the Procuring Entity to direct its evaluation committee to conduct due diligence strictly according to the Subject Tender document and the law.
(d) Costs of this application be awarded to the Ex-parte Applicant against the Respondents and the Interested Party.
2. The application is predicated on the affidavit verifying facts sworn by David Kimani Kiriro on 7th December 2023 and the further affidavit verifying facts sworn by David Kimani Kiriro on 15th December 2023 and statutory statement.
The Ex- parte applicant ‘s case;
3. On the 22nd November 2022, the 2nd Respondent hereinafter referred to as ‘the Procuring Entity’ advertised for TENDER NO. TNT/007/2022-2023 FOR PROVISION OF FLEET MANAGEMENT SOLUTIONS FOR THE MOTOR VEHICLES LEASING PROGRAMME PHASE VII (herein referred to as “the Subject Tender’’).
4. The Tender was closed on 19th January 2023 at 11:00 AM. It had attracted 11 bidders, amongst them the Ex-parte Applicant and the Interested Party herein.
5. From the preliminary evaluation stageonly the Ex-parte Applicant and the Interested Party were considered responsive at the technical evaluation stage.
6. The tenders were subjected to the financial evaluation where the Ex-parte Applicant’s tender was ranked first, having quoted the lowest bid in the sum of Kes. 179,091,050whilst the Interested Party’s tender was ranked 2nd having quoted a sum of Kes. 242,651,000.00.
7. Having found that the Ex-parte Applicant was the lowest technically qualified bidder, the procuring entity communicated to the Ex-parte Applicant of its intention to award it the subject tender and also informed the other tenderers, including the Interested Party herein of this intention, vide the letters dated 12th July 2023.
8. The Interested Party was dissatisfied with the award of the tender to the Ex-parte Applicant and filed an application for review of the award of the tender to the Public Procurement Administrative Review Board, in accordance with Section 167(1) of the Public Procurement and Assets Disposal Act 2015, this was, PPARB Application 58 of 2023- M/S Gaps Tech Solutions Limited v The Principal Secretary, The National & The National Treasury and M/S Corprisk Africa Limited (hereafter referred to as the “PPARB No. 58 of 2023).
9. The crux of the Interested Party’s complaint before the Board in PPARB No. 58 of 2023 was that the Ex-parte Applicant allegedly did not have the mandatory requirement No. 19 provided on page 28 of the tender document. The mandatory requirement, required bidders to furnish that is:
19. Certified Copy of valid registration by Private Security Regulatory Authority.
10. In challenging the Interested Party’s averment, the Ex-parte Applicant claim that it did indeed comply with mandatory requirement No. 19 on page 28 of the tender document the Ex-parte Applicant implores this Honorable Court to turn to page 201 of its Annexure DK-1 which is a certified copy of valid registration by the Private Security Regulatory Authority.
11. On 1st September 2023, the Public Procurement Administrative Review Board delivered its ruling in PPARB No. 58 of 2023 wherein the notification of intention to award the tender to the Ex-parte Applicant was set aside and cancelled and the 1st Respondent was ordered to direct the Evaluation Committee of the Procuring Entity to conduct due diligence in accordance with the Tender Document and the law. The ruling of the Board is now spent. The Ex-parte applicant is not aggrieved by it. The Interested Party’s averment that this application for judicial review is an appeal from the decision of the Board is inaccurate.
12. The Ex-parte Applicant submits that the ruling of the Board in PPARB No. 58 of 2023 did not declare any bid non-responsive nor did it amend the Subject Tender. The orders given to the Procuring Entity were limited to conducing due diligence over the validity of the Ex-parte Applicant’s certificate of registration from the Private Security Regulations Authority (PSRA) in accordance with the Tender Document.
13. The 1st Respondent issued the Ex-parte Applicant with a notice of intention to award the Subject Tender dated 23rdNovember 2023 to the Interested Party. In the notice of intention to award, the 1st Respondent claimed that the Interested Party was the 2nd Lowest Technically evaluated bidder with a bid of Kshs 242,651,000.00.
14. In the notice of intention to award the subject Tender dated 23rd November 2023 the 1st Respondent claimed that the Ex-parte Applicant’s bid was unsuccessful because it did not provide a valid registration certificate by the Private Security Regulations Authority (PSRA).
15. Being aggrieved by the notice of intention to award the Subject Tender dated 23rd November 2023, the Ex-parte Applicant wrote a letter dated 27th November 2023 seeking debriefing in relation to evaluation of the tender. In the said letter the Ex-parte Applicant sought confirmation on whether its bid was responsive and whether it was indeed the lowest bidder.
16. In response to the request for debriefing, the 1st Respondent wrote a letter dated 28th November 2023 to the Ex-parte Applicant in which it claimed that it wrote to the Public Security Regulatory Authority (PRSA) and was informed that as at 30th August 2023, the Ex-parte Applicant had not been registered/ licensed to provide car tracking, satellite tracking and/or to undertake the distribution and installation of any electronic monitoring devices or surveillance equipment.
17. The specific registration to provide car tracking, satellite tracking and/or to undertake the distribution and installation of any electronic monitoring devices or surveillance equipment was not required as a mandatory document in the subject tender. It was brought up after the tender closed.
18. Further, in the letter dated 28th November 2023, the 1st Respondent claimed that” … the certificate you presented from the Public Security Regulatory Authority (PSRA)(sic) was not valid, hence rendering your bid non-responsive”.
19. In the letter dated 28th November 2023, the 1st Respondent claimed that the 2nd Respondent wrote to the PRSA requesting for a copy of the Certificate of registration in respect to the Applicant and as at the date of the letter the same had not been received.
20. The Public Security Regulatory Authority (PSRA) was not required to provide anything in the tender document. What was required was a valid document from the Private Security Regulatory Authority.
23. The Ex-parte Applicant submits that by arbitrarily declaring its bid non-responsive in its letter to the Petitioner dated 28th November 2023, the 1st Respondent has un-procedurally stripped it of locus standi to move the Public Procurement Administrative Review Board (PPARB) for redress as Section 167 (1) of the Procurement and Assets Disposal Act, 2015 limits the jurisdiction of the PPARB to review, hear and determine disputes on tendering and asset disposal disputes from a responsive tenderer.
24. Section 167 of the Public Procurement and Asset Disposal Act (2015) provides that:
(1) Subject to the provisions of this Part, a candidate or a tenderer, who claims to have suffered or to risk suffering, loss or damage due to the breach of a duty imposed on a procuring entity by this Act or the Regulations, may seek administrative review within fourteen days of notification of award or date of occurrence of the alleged breach at any stage of the procurement process, or disposal process as in such manner as may be prescribed.
(2) A request for review shall be accompanied by such refundable deposit as may be prescribed in the regulations, and such deposit shall not be less than ten per cent of the cost of the contract: Provided that this shall not apply to tenders reserved for women, youth, persons with disabilities and other disadvantaged groups.
(3) A request for review shall be heard and determined in an open forum unless the matter at hand is likely to compromise national security or the review procedure.
(4) The following matters shall not be subject to the review of procurement proceedings under subsection (1)— (a) the choice of a procurement method; (b) a termination of a procurement or asset disposal proceedings in accordance with section 63 of this Act; and (c) where a contract is signed in accordance with section 135 of this Act.
25. Reliance is placed in the case of James Oyondi t/a Betoyo Contractors & another v Elroba Enterprises Limited & 8 others [2019] eKLR in determining who has locus to file an application for review before the Public Procurement Administrative Review Board, the Court of Appeal held as follows:
“It seems plain to us that in order to file a review application, a candidate or tenderer must at the very least claim to have suffered or to be at the risk of suffering loss or damage. It is not any and every candidate or tenderer who has a right to file for administrative review. Were that the case, the Board would be inundated by an avalanche of frivolous review applications. There is sound reason why only candidates or tenderers who have legitimate grievances may approach the Board. In the present case, it is common ground that the appellants were eliminated at the very preliminary stages of the procurement process, having failed to make it even to the evaluation stage. They therefore were, with respect, the kind of busy bodies that section 167(1) was designed of keep out. The Board ought to have ruled them to have no locus, and the learned Judge was right to reverse it for failing to do so. We have no difficulty upholding the learned Judge.
Having come to those conclusions on the locus standi of the appellants and having found that the learned Judge properly quashed the Board’s proceedings and decision, we think it is only logical that the dispositive orders made by the learned Judge be also upheld. The tendering process was complete and the successful candidates, the petitioners, were known. The process had been delayed by all manner of factors including at the last, the review proceedings filed by the appellants. It was only logical and fair and in the interests of sound management of public resources, that the process be completed, hence the direction by the learned Judge that the contracts be executed. We see no error in that direction.”
27. In Republic v Independent Electoral and Boundaries Commission & Another Ex Parte Coalition for Reform and Democracy & 2 Others [2017] eKLR in determining the issue of whether Section 167 of the PPADA 2015 ousts the jurisdiction of the High Court Odunga J (as he then was) held as follows:
“173. With respect to the matters raised in these proceedings, it is clear that the applicant could not move the Review Board for determination. I agree with the IEBC that pursuant to section 167(1) of the Public Procurement and Asset Disposal Act, 2015 administrative review is available only to the candidates or tenderers and that the Applicant was neither a candidate nor a tenderer in the subject procurement. Strictly speaking therefore, it was not the spirit or text of that law that parties other than candidates or tenderers should be permitted to challenge procurement processes through the procedure provided for under the Act. To that extent I agree that persons who fall within the category of the Applicant herein have no locus to commence proceedings before the Review Board.
174. This does not however mean that a person aggrieved by the action of the Procuring Entity, in such circumstances is left without a remedy. In my view, the remedy in such circumstances is to be found in section 174 of the Public Procurement and Asset Disposal Act which provides as follows:
The right to request a review under this Part is in addition to any other legal remedy a person may have.
175. In my view a person who would otherwise be locked out from invoking the provisions of the Public Procurement and Asset Disposal Act is not barred from seeking alternative remedy under other provisions of the law. This was the position adopted by this Court in Elias Mwangi Mugwe vs. Public Procurement Administrative Review Board & 5 Others [2016] eKLR where the Court expressed itself as hereunder:
“…any person who has no automatic right to participate in the review proceedings may properly resort to other available modes of ventilating his rights.”
176. It is not in doubt that one of the available remedies for challenging a decision made by the IEBC is to apply for judicial review which is what the ex parte applicant sought in these proceedings.”
28. The Ex-parte Applicant further relies on the finding of Justice G V Odunga in the case of Republic V Chief Magistrate Milimani Commercial Court & 2 Others Ex-Parte Violent Ndanu Mutinda & 5 Others [2014] Eklr which considered the grounds upon which the court will exercise its judicial review jurisdiction and stated thus:
“The broad grounds on which the Court exercises its judicial review jurisdiction were restated in the Uganda case of Pastoli vs. Kabale District Local Government Council and Others [2008] 2 EA 300. In that case the Court cited with approval Council of Civil Unions Vs. Minister for the Civil Service [1985] AC 2 and An Application by Bukoba Gymkhana Club [1963] EA 478 at 479 and held:
“In order to succeed in an application for judicial review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety…
Illegality is when the decision-making authority commits an error of law in the process of taking or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality. It is, for example, illegality, where a Chief Administrative Officer of a District interdicts a public servant on the direction of the District Executive Committee, when the powers to do so are vested by law in the District Service Commission… Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards….
Procedural Impropriety is when there is a failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or Legislative Instrument by which such authority exercises jurisdiction to make a decision”.
29. As the Ex-parte Applicant was illegally stripped of locus standi to move the Public Procurement Administrative Review Board (PPARB) for redress as section 167 (1) of the Procurement and Assets Disposal Act, 2015, its only recourse is to seek justice from this Court.
30. This Court does not require the Ex-parte Applicant to pay security tethered to the contact sum to approach it for an application for judicial review. The averment in paragraph 27 of the replying affidavit sworn by Gilbert Odadi is inaccurate. Further the Private Security Regulatory Authority (PRSA) is not a party to these proceedings.
31. The Ex-parte Applicant also implores this Court to disregard the wild allegations of criminality against it from the Interested Party along with the irrelevant contemptuous expressions against it by the Interested Party. The Ex-parte Applicant is not interested in the hearing described in paragraph 25 of the replying affidavit sworn by Gilbert Odadi.
32. The Ex-parte Applicant submits that the Evaluation relied on criterion outside what was set out in the Subject Tender Document in carrying out its due diligence therefore the resultant decision was tainted with illegality, irrationality and procedural improprieties for the following reasons:
33. In the notice of intention to award the Subject Tender dated 23rd November 2023 the 1st Respondent informed the Ex-parte Applicant of the following:
“Your bid was unsuccessful because of not providing a valid registration certificate by the Private Security Regulatory Authority (PSRA); as conformed during the due diligence exercise ordered by the Public Procurement Administrative Review Board. “
34. In a further letter dated 28th November 2023, the 1st Respondent wrote to the Ex-parte Applicant where it stated as follows:
“Subsequently, the National Treasury vide letter Ref. TNT/007/2020-2023 (17) dated 6th September 2023 requested the Private Security Regulatory to confirm and verify the qualifications of your company as directed by the Review Board.
The Public Security Regulatory Authority (PSRA) vide their letter Ref. PSRA/PSRA/TNT/230/01(2) dated 26th September 2023 noted that as at 30thAugust 2023 M/S Corprisk Africa Limited had not been registered/ licensed to provide car tracking, satellite tracking and/or undertake the distributionand installation of any other electronic monitoring devices or surveillance equipment including Fleet Management Solutions.
They further indicated that M/S Corprisk Africa Limited were registered/ licensed to provide car tracking, satellite tracking and/or undertake the distribution and installation of any other electronic monitoring devices or surveillance equipment including Fleet Management Solutions on 20thSeptember 2023.”
35. The Ex-parte Applicant avers that the specific licence/ registration to provide car tracking or satellite tracking was not set out as a requirement in the tender document therefore, using is as a basis to disqualify the Ex-parte Applicant’s bid was not procedurally proper.
36. By its own admission in the said letter dated 28th November 2023, the 1st Respondent confessed that the procuring entity took it upon itself to look for and consider a specific license/ registration to provide car tracking or satellite tracking as a precondition for qualification. The Ex-parte Applicant reiterates that this was a mandatory document that was not set out in the tender document.
37. The Ex-parte Applicant submits that mandatory requirement No. 19 provided of the tender document required bidders to provide a; “Certified Copy of valid registration by Private Security Regulatory Authority.” This was all that was required in the subject tender.
38. The Ex-parte Applicant relies on the holding of the Courtin Okiya Omtatah Okoiti & 3 others v Anne Waiguru, the Cabinet Secretary, Devolution and Planning & 6 others [2021] eKLR where the court held
“An act of ultra vires when the decision making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires or contrary to the provisions of law or its principles renders the decision made laced with illegality.”
40. Section 75 of the Public Procurement and Asset Disposal Act clearly sets out the procedure for modifications to tender documents as follows:
(1) A procuring entity may amend the tender documents at any time before the deadline for submitting tenders by issuing an addendum without materially altering the substance of the original tender.
(2) An amendment may be made on the procuring entity's own initiative or in response to an inquiry by a candidate or tenderer.
(3) A procuring entity shall promptly provide a copy of the addendum to each person to whom the procuring entity provided copies of the tender documents.
(4) The addendum shall be deemed to be part of the tender documents.
(5) If the tender documents are amended when the time remaining before the deadline for submitting tenders is less than one third of the time allowed for the preparation of tenders, or the time remaining is less than the period indicated in instructions to tenderers, the accounting officer of a procuring entity shall extend the deadline as necessary to allow the amendment of the tender documents to be taken into account in the preparation or amendment of tenders.
41. Modification of a tender document cannot be an afterthought where the Evaluation Committee discovers that a certain document is good to have then declares it to be a mandatory document thus modifying the Tender Document after the deadline for submitting bids has closed.
42. Section 76(2) of the Public Procurement and Asset Disposal Act provides that after the deadline for submitting tenders, a person who submitted a tender shall not change or offer to change the terms of that tender. Therefore, after the deadline for submitting tenders closed on 19th January 2023, the Procuring Entity did not have power to modify the Subject Tender and the Tenderers did not have power to modify their bid. What was submitted by either party, that is, the Procuring Entity and the Tenderers, would be what would be used to determine the winner.
43. The Ex-parte Applicant submits that the Procuring Entity had a legal duty to act in accordance with the law and the tender document and it has unlawfully refused to follow the law by illegally modifying the tender document to require the production of a document that was not set out in the tender as a basis for declaring the Ex-parte Applicant’s bid non-responsive.
44. The Ex-parte Applicant submits that the Procuring entity has made a decision 'beyond the powers' (in Latin, this is known as 'ultra vires') for after the deadline for submitting tenders closed, the Procuring Entity’s power to modify the tender document was stripped away and it could not make this modification tacitly at the due diligence evaluation stage.
51. The Ex-parte Applicant submits that it had a legitimate expectation that the Procuring Entity would comply with the criterion set out in the Subject Tender to evaluate bids.
52. By failing to comply with the criteria set out in the subject Tender Document, the Procuring Entity has subverted the purpose of supplying information to bidders for the preparation of tenders. This amounts to unfairness for the bids were marked against criteria set after the fact as they were not in the tender document thus disadvantaging the Ex-parte Applicant while allowing the Interested Party to gain an unfair advantage.
53. The Ex-parte Applicant does not claim to have had a legitimate expectation to win the tender, rather, it asserts that it had a right to a legitimate expectation that the Procuring Entity will judge it solely based on the Subject Tender, no more and no less.
49. In Keroche Industries Limited vs. Kenya Revenue Authority & 5 Others Nairobi HCMA NO. 743 of 2006 [2007] 2 KLR 240, Nyamu, J expounded on the doctrine of legitimate expectation as follows:
“Stated simply legitimate expectation arises for example where a member of the public as a result of a promise or other conduct expects that he will be treated in one way and the public body wishes to treat him or her in a different way.”
50. In Republic v Public Procurement Administrative Review Board & another; Premier Verification Quality Services (PVQS) Limited (Interested Party) Ex Parte Tuv Austria Turk [2020] eKLR, the court held that
39. Such formalities are usually listed in bid documents as mandatory requirements – in other words, they are a sine qua non for further consideration in the evaluation process. The standard practice in the public sector is that bids are first evaluated for compliance with responsiveness criteria before being evaluated for compliance with other criteria, such as functionality, pricing or empowerment. Bidders found to be non-responsive are excluded from the bid process regardless of the merits of their bids. Responsiveness thus serves as an important first hurdle for bidders to overcome.
40. In public procurement regulation it is a general rule that procuring entities should consider only conforming, compliant or responsive tenders. Tenders should comply with all aspects of the invitation to tender and meet any other requirements laid down by the procuring entity in its tender documents. Bidders should, in other words, comply with tender conditions; a failure to do so would defeat the underlying purpose of supplying information to bidders for the preparation of tenders and amount to unfairness if some bidders were allowed to circumvent tender conditions. It is important for bidders to compete on an equal footing. Moreover, they have a legitimate expectation that the procuring entity will comply with its own tender conditions. Requiring bidders to submit responsive, conforming or compliant tenders also promotes objectivity and encourages wide competition in that all bidders are required to tender on the same work and to the same terms and conditions.”
54. In the 1st Respondents letter to the Ex-parte Applicant dated 28th November 2023 the Procuring Entity relays the following confirmation from the Public Security Regulatory Authority (PRSA):
“They further indicated that M/s Coprisk Africa Limited were registered/ license to provide car tracking, satellite tracking and/ or to undertake the distribution and installation of any electronic monitoring devices or surveillance equipment including Fleet Management Solutions on 20th September 2023.”
56. The Ex-parte Applicant submits that the Procuring Entity has violated its right of legitimate expectation by illegally modifying the Tender Document after deadline for submitting tenders closed thus breaching section 75(1) of the Public Procurement and Asset Disposal Act then arbitrarily and ultra vires declaring the specific registration to for provision of car tracking services a mandatory document due at the closing date.
58. The Ex-parte Applicant submits that the Procuring Entity has acted illegally, arbitrarily, unprocedurally, and ultra vires in declaring its bid non-responsive based on extrinsic criteria conjured up outside the Subject Tender Document.
59. The Ex-parte Applicant submits that is has succeeded in meeting the standard set in Pastoli vs Kabale District Local Government council and Other (2008) 2 EA 300.
60. The Ex-parte Applicant has demonstrated that the Procuring Entity’s decision to use criteria other than that set in the tender document to declare its bid as non-responsive is tainted with illegality, irrationality and procedural improper.
61. The Procuring Entity’s decision to modify the tender document after the deadline for submitting tenders closed was an illegality and an ultra vires decision made in contravention of section 75(1) of the Public Procurement and Asset Disposal Act which limits its power to amend the tender document to before the deadline for submitting tenders and strips it away by operation of the law after the said deadline closed.
62. The Procuring Entity’s decision to consider extrinsic factors that were not set out in the Subject Tender was grossly unreasonable as no reasonable authority, addressing itself to the facts and the law before it would have made such a decision to search outside the four corners of the Subject Tender document to confer an advantage to the Interested Party to the detriment of the Ex-parte Applicant. The Ex-parte Applicant submits that this decision violated its right of legitimate expectation.
65. It is trite law that costs follow the event, being a victim of the Procuring Entity’s illegal, ultra vires, unprocedural and unfair actions geared towards disadvantaging the Ex-parte Applicant and favoring the Interested Party. 66. The Ex-parte Applicant submits that it ought to be awarded costs of its claim against the Respondents and Interested Party.
The Respondent’s case:
67. In response to the Notice of Motion dated 11th December 2023, The Respondent filed a replying affidavit dated 19thJanuary 2024 sworn by Dr. Chris Kiptoo the Principal Secretary for the National treasury.
68. According to him, the award of tender on 23rd November 2023 was legal and Constitutional and in response to the Ex parte Applicant’s Notice of Motion application dated 11thDecember 2023.
69. The Leasing Programme for official Government transport was announced in the Budget Statement for the 2010/2011 Financial Year, by the then Hon. Deputy Prime Minister and Minister for Finance H.E Uhuru Kenyatta.
70. The Tender was advertised on Tuesday 22nd November, 2022 and closed/opened on Thursday 19th January 2023.
71.The Tender Evaluation Committee recommended that the tender be awarded to M/s Corprisk Africa Limited subject to due diligence being undertaken.
72. The Due diligence exercise was undertaken from 23rd March 2023 to 4th May, 2023.
73.According to the respondents the court lacks jurisdiction for the reason that the instant application violates the doctrine of exhaustion of administrative remedies which requires that a person challenging an administrative decision must first pursue available remedies before seeking judicial review.
74. The Doctrine of Exhaustion is defined in Blacks Law Dictionary 10th Edition as follows:-
“exhaustion of remedies. The doctrine that, if an administrative remedy is provided by statute, a claimant must seek relief first from the administrative body before judicial relief is available. The Doctrine’s purpose is to maintain comity between the courts and administrative agencies and to ensure that courts will not be burdened by cases in which juridical relief is unnecessary.
75. Section 9 of the Fair Administrative Action Act provides for the doctrine of Exhaustion thus –
Procedure for judicial review
(1) Subject to subsection (2), a person who is aggrieved by an administrative action may, without unreasonable delay, apply for judicial review of any administrative action to the High Court or to a subordinate court upon which original jurisdiction is conferred pursuant to Article 22(3) of the Constitution.
(2) The High Court or a subordinate court under subsection (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.
(3) The High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under sub-section (1).
76. Reliance is also placed in the case of Republic v National Environment Management Authority Ex parte Sound Equipment Ltd, (supra), where the Court of Appeal observed: -
“... Where there was an alternative remedy and especially where Parliament had provided a statutory appeal procedure, it is only in exceptional circumstances that an order for judicial review would be granted and that in determining whether an exception should be made and judicial review granted, it is necessary for the court to look carefully at the suitability of the statutory appeal in the context of the particular case and ask itself what, in the context of the statutory powers, was the real issue to be determined and whether the statutory appeal procedure was suitable to determine it ...”
In Secretary, County Public Service Board & another v Hulbhai Gedi Abdille [2017] eKLR where the Court held that:
“There is no doubt that the respondent initiated the judicial review proceedings in utter disregard to the dispute resolution mechanism availed by Section 77 of the Act. The section provides not only a forum through which the respondent could agitate her grievance at first instance, but the jurisdiction thereof is a specialized one, specifically tailored by the legislators to meet needs such as the respondent’s. In our view, the most suitable and appropriate recourse for the respondent was to invoke the appellate procedure under the Act rather than resort to the judicial process in the first instance. In terms of Republic v National Environment Management Authority (supra), we discern no exceptional circumstances in this appeal that would have warranted the bypassing of the statutory appellate process by the respondent. Her contention that she disregarded the appeal because it could not afford her an opportunity to question the procedure followed by the appellant is in our view, without basis because Section 77 has placed no fetter to the jurisdiction of the Public Service Commission. There is no requirement for instance that reasons for the decision be availed to an aggrieved party before he can prosecute an appeal before it.”
The Respondent argues that the Applicant has not exhausted the existing review mechanisms i.e. requesting for review pursuant to Section 167 and 168 of the Public Procurement and Asset Disposal Act, 2015.
77. It is the 1st and 2nd respondent case that in the award on 23rd November 2023 to the Interested Party was carried out in full compliance with the procurement laws.
78. In the case of Pastoli Vs Kabale District And Others (2008) 2 E.A. 300 the court set out the duty of a court in Judicial Review applications as follows: -
“In order to succeed in an application for Judicial Review, the Applicant has to show that the decision or the act complained of is tainted with illegality, irrationality and procedural impropriety……Illegality is when the decision making authority commits an error of law in the process of taking or making the act the subject of the complaint. Acting without jurisdiction or ultra vires or contrary to the provisions of law or its principles are instances of illegality…….irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority would have made such a decision is usually in defiance of logic and acceptable moral standards……Procedural impropriety is when there is a failure to act fairly on the part of the decision making authority in the process of taking a decision. The unfairness may be in non -observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative instrument by which such authority exercises jurisdiction to make a decision.”
79. In the case of Municipal Council of Mombasa VsRepublic Umoja Consultants Ltd Civil Appeal No. 185 of 2007 (2002) eKLR the court of appeal set out the parameters in applications for JR and held that: -
“The court would only be concerned with the process leading to the making of the decision. How was the decision arrived at. Did those who made the decision have power i.e. Jurisdiction to make it. Were the provisions affected by the decision heard before it was made. In making the decision, did the decision maker take into account relevant matters or did the take into account irrelevant matters. These are the kind of questions a court hearing a matte by way of judicial review is concerned with and such court is not entitled to act as a court of appeal over the decider. Acting as an appeal court over the decider would involve going into the merits of the decision itself – such as whether this was or there was no sufficient evidence to support the decision and that as we have said, is not the province of judicial review.”
80. .The 1st and 2nd Respondent vide letter Ref. TNT/007.2022-2023(17) dated 6th September, 2023 requested the Private Security Regulatory Authority (PSRA) to confirm whether the Applicant was vetted, the types of security related services they provided and if they are qualified to offer Fleet Management Services.
81. On 7th September, 2023, 1st and 2nd Respondent filed a Notice of Motion at the PPRB to allow for the extension of the tender validity period as well as the bid validity period for ninety (90) days allowing undertaking of due diligence and the subsequent processes as directed by the Board.
82.The PPRB in their Orders dated 25th September 2023 granted the National Treasury authority to extend the tender validity period and the bid security validity period for ninety (90) days from 8th September, 2023 to allow for conclusion of the procurement process.
83. On 29th September, 2023 the 1st & 2nd requested all the tenderers to extend their tender validity period for a period of ninety (90) days with effect from 8th September,2023 up to 8thDecember, 2023 and at the same time extend the bid security validity from 8th September,2023 up to 8thDecember, 2023.
84. Thereafter, the Private Security Regulatory Authority (PSRA) vide their letter dated 26th September, 2023 noted that as at 30th August, 2023, the Applicant had not been registered /licensed to provide car tracking, satellite tracking and/or to undertake the distribution and installation of any other electronic monitoring devices or surveillance equipment including Fleet Management Solution.
85.They further indicated that the Applicant were registered /licensed to provide car tracking, satellite tracking and/or to undertake the distribution and installation of any other electronic monitoring devices or surveillance equipment including Fleet Management Solution on 20th September, 2023.
86.The 1st & 2nd Respondents Accounting Officer therefore granted approval for the Evaluation Committee to undertake due diligence on the Second lowest bidder, M/s. GaptechSolutions Limited (the Interested Party herein) pursuant to section 83 (1) (2) and (3) of the Public Procurement and Asset Dispoal Act, 2015 as read together with Regulation 80 (1) and (2) (a) (b) of Public Procurement and Asset Disposal Regulations and as guided by the Head of Supply Chain Management Services
87.The 1st and 2nd Respondents vide letter dated 21st November, 2023 informed the Interested Party of the intention to undertake due diligence at their premises.
88.The 1st and 2nd Respondents vide letter dated 21st November, 2023 requested PSRA to provide documentation and information to ascertain whether the Interested Party was duly registered and vetted to provide Fleet Management Solution Services.
89. The due diligence exercise was undertaken on 23rd November, 2023 and the evaluation Committee was satisfied that the Interested Party demonstrated the capacity to undertake the services for Provision of Fleet Management Solutions.
90. Pursuant to Sections 84 and 83 (1) (2) and (3) of Public Procurement and Assets Disposal Act, 2015 as read together with Regulation 80 (1) and (2) (a) (b) of the Public Procurement and Assets Disposal Regulations, the Head of Supply Chain Management Services examined the due Diligence Report and the secretariat comments in relation to the tender for Provision of Fleet Management Solution for Motor Vehicles Leasing Programme (Phase VII) and recommended the award to M/s. Gaptech Solutions Limited (the Interested Party) being the 2nd lowest evaluated bidder at total tender sum of Kshs. 242,651,000.00 (Kenya Shillings Two Hundred and Forty-Two Million Six Hundred and Fifty-One Thousand Only) inclusive of all Taxes.
91. The 1st and 2nd Respondents, vide letters dated 23rd November, 2023 notified all the bidders of the intention to award the tender to M/s. Gaptech Solutions Limited being the 2nd lowest evaluated bidder at total tender sum of Kshs. 242,651,000.00 (Kenya Shillings Two Hundred and Forty-Two Million Six Hundred and Fifty-One Thousand Only) inclusive of all Taxes.
92. The Applicant vide letter dated 27thNovember 2023 requested the National Treasury for debriefing as outlined in the tender document page 21 item 44 regarding the following issues:
1) To have a confirmation that their bid was responsive at the preliminary evaluation stage.
2) That their bid of KShs 179,091,050.00 was the lowest responsive bid.
3) A copy of the certificate of registration (if any) received from the Private Security Regulatory Authority (PSRA)
93. The respondent via letter dated 28th November 2023 provided a debrief on the issues raised by the Applicant herein.
94. The Applicant alleged that the 1st and 2ndRespondents acted illegally, unfairly and unconstitutionally by looking for a document that was not required in the subject tender using the same as a basis to declare its bid non-responsive.
95. The 1st and 2nd Respondents actions in processing of this tender were legal, fair and in line with the tender document and provisions of the Public Procurement and Asset Disposal Act, 2015 and its attendant Regulations, 2020.
96. As part of the due diligence process, the 1st and 2ndRespondents vide letter dated 6th September 2023 requested the Private Security Regulatory Authority to provide information to ascertain whether the Applicant was vetted, the types of security related services they were providing and if they were qualified to offer Fleet Management Services.
97. The Private Security Regulatory Authority (PSRA) is a State Corporation established under section 7 of the Private Security Regulation Act No. 13 of 2016 whose mandate is to provide a framework of regulation of private security services.
98. Among the mandatory requirements in the tender document was the provision of a Certificate of Registration from the Private Security Regulatory Authority (PSRA) who are the mandated issuers of the said certificate.
99. In reaching the decision to recommend for award, the 1stand 2nd Respondents was guided by the Private Security Regulatory Authority (PSRA) vide their letter dated 26th September, 2023 which provided that as at 30th August, 2023, the Applicant had not been registered /licensed to provide car tracking, satellite tracking and /or to undertake the distribution and installation of any other electronic monitoring devices or surveillance equipment including Fleet Management Solutions.
100. It is their case that a no Notification of Award has been issued but letters of Intention to Award the tender.
101. The prayer sought for an order of Certiorari and Mandamus cannot be issued as the ex-parte applicant has failed to demonstrate any acts of illegality, irrationality and procedural impropriety on the part of the 1st and 2nd Respondents.
The interested party’s case:
102. The Interested Party herein filed a Replying Affidavit on the 14th December, 2023 in opposition to the Ex-parte Applicants Application dated 1 1 th December, 2023.
103. According to the interested party the application in question is an appeal from the decision of the review board rendered on 1st September 2023.
104. Parties appeared before the review board in opposition to the award made to the Ex-parte Applicant herein on the basis that they were not qualified for the reason that their Certificate from the Private Security Regulations Authority was not valid within the scope of the contract as the time of application as confirmed by the Private security.
105. It was the basis upon which the decision of the 1st and 2nd respondents were set aside and they were directed to conduct fresh due diligence pursuant to the provisions of the law and the contract.
106. The Ex-parte Applicant cannot allege now that they expected the 1st and 2nd Respondents to award the contract to them in spite lack of a valid certificate pursuant to the scope of the contract, advisory of the only regulatory authority within their field and the law.
107. The scope of this Honourable Court is indeed limited to evidence before it and cannot call upon the makers of documents for purposes of cross-examination.
Section 167 of the Public Procurement and Asset Disposal Act, 2015(request for review) provides;
"(1) Subject to the provisions of this part, a candidate or a tenderer, who claims to have suffered or to risk suffering, loss or damage due to the breach of a duty imposed on a procuring entity by this Act or the Regulations, may seek administrative review within fourteen days of notification of award or date of occurrence of the alleged breach at any stage of the procurement process, or disposal process as in such manner as may be prescribed."
108. The Ex-parte applicant cannot allege that they were deprived the locus to appear that Board that has powers as provided under Section 173 to call witnesses and experts for purposes of establishing the issues herein.
Section 173 of sets out the powers of Review Board upon completing a review, the Review Board may do any one or more of the following—
(a) annul anything the accounting officer of a procuring entity has done in the procurement proceedings, including annulling the procurement or disposal proceedings in their entirety
(b) give directions to the accounting officer of a procuring entity with respect to anything to be done or redone in the procurement or disposal proceedings;
(c) substitute the decision of the Review Board for any decision of the accounting officer of a procuring entity in the procurement or disposal proceedings;
accordance with the scale as prescribed; and (e) ordern of
order the payment of costs as between parties to
the procurement process and commencement of a new procurement process.
109. The interested party argues that the Ex-parte applicant should have approached the board with their alleged grievance.
110. For the Ex-parte applicant to have consumed the decision of the Board without filing an appeal under judicial review but to turn around and now start faulting the actions of the 1St and 2nd Respondents arising out of implementation of the decision of the Board is not being candid.
111. Suffice to note that the right to judicial review is provided for under Section 175
(1) of the procurement Act, which states that a person aggrieved by a decision made by the Review Board may seek judicial review by the High Court within fourteen days from the date of the Review Board's decision, failure to which the decision of the Review Board shall be final and binding to both parties.
(2) The application for a judicial review shall be accepted only after the aggrieved party pays a percentage of the contract value as security fee as shall be prescribed in Regulations.
(3) The High Court shall determine the judicial review application within forty five days after such application.
112. The 1st and 2nd Respondents are only implementing orders of the review board arising out of the decision made directing them to undertake due diligence according to the law and contract.
113. The applicant is inviting this Honourable court to order the 1st and 2nd Respondents to overlook the advisory of the only regulatory organ tasked with licensing private security companies, a creature of the constitution.
114. Vide a letter dated 28th November 2023, the 1st Respondent declared the bid to be non-responsive.
Reliance is placed in the case of Republic v Public Procurement Administrative Review Board & 2 Others Ex Parte Rongo University [2018] eKLR
115. The Honourable Court held that grant of orders of certiorari, mandamus and prohibition is discretionary. The court is entitled to take into account the nature of the process against which judicial review is sought and satisfy itself that there is reasonable basis to justify the orders sought.
116. Further In Republic v Public Procurement Administrative Review Board 2 others [2019] eKLRMativo J held as follows...
"The power of the court to Review an administrative action is extraordinary. It is exercised sparingly, in exceptional circumstances where illegality, irrationality or procedural impropriety has been proved.
113. According to them, the Ex-parte applicant has failed to avail their application for certificate that would then prove that their alleged certificate is valid and within the scope of the contract in question.
114. They have further failed to enjoin the regulator (who had advised the 1st and 2nd Respondents) responsible for issuance of the specific certificate which is in contention to at least shed light on the scope of their certificate for indeed it is the expert under these circumstances.
The Court of Appeal in Municipal Council of Mombasa vs. Republic & Umoja Consultants Ltd Civil Appeal No. 185 of 2001 held that
"Judicial review is concerned with the decision making process, not with the merits of the decision itself: the Court would concern itself with such issues as to whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters... The court should not act as a Court of Appeal over the decider which would involve going into the merits of the decision itself-such as whether there was or there was not sufficient evidence to support the decision."
117. They have made reference to Peter Kaluma's book, Judicial Review, Law Procedure and Practice.
Due diligence is defined by Merriam Webster Dictionary as
("The care that a reasonable person exercises to avoid harm to other persons or their property" or "Research and analysis of a company or organization done in preparation for a business transaction (such as a corporate merger or purchase of securities)").
118. To grant or not to grant an order of certiorari or generally any judicial review orders is a matter of discretion of the presiding judge subject to attainment of substantive justice. It is ordinarily issued where a public authority or body has acted without authority or in excess of its jurisdiction.
119. It is clear from the decision of the Public Procurement Administrative Review Boards under Application No. 58/2023 of 11th August, 2023 that:
1. The Board found at page 51 that the 2nd Respondent did not carry out due diligence on the Applicant (hereinafter referred to as Ms. Coprisk) in accordance with Section 83 of the Act read together with Regulation 80 of Regulations 2020. Having found that due diligence conducted on the Applicants tender was not proper.
2. The Letter of Notification of Intention to Award, dated July, 2023 issued by the lst Respondent in respect of the subject tender and addressed to the parties be and are hereby cancelled and set aside.
3. Evaluation committee to conduct due diligence in accordance with the Tender documents and the law to confirm and verify the qualifications of the interested party taking into consideration the Boards findings in the Request for review.
120. This is the decision coupled with Section 83 of the Act, from which the Respondents derived powers to undertake due diligence afresh and call for expert opinion including the Private Security Regulatory Authority.
121. Certainly, validity of a certificate is a question of law which parties cannot purport to run away from and the scope of the same can only be spoken to by the issuing authority.
In the case of Captain Geoffrey Kugoya Murungi v A.G Misc. Civil Application No.293 of 1993 the court held that:
"Certiorari deals with decisions already made ...such an order(certiorari) can only be issued where the court considers that the decision under attack was reached without or in excess of jurisdiction or in breach of the rules of natural justice or contrary to the law.
Thus, an order of certiorari is not a restraining order"
121. In Republic v Public Procurement Administrative Review Board; Shenzhen Instrument Co. Limited & another (Interested Party) Ex parte Kenya Power and Lighting Company Limited [2019] eKLR Mativo J while relying on the decision in Paul Kiplagat Birgen 85 25 Others v Interim Independent Electoral Commission 8s 2 Others [2011] eKLR held as follows;
"A Judicial Review court ought to be slow to substitute its own decision solely because it does not agree with the permissible option chosen by the body. Where a body is granted wide decision-making powers with a number of options or variables, a judicial review court may not interfere unless it is clear that the choice preferred is at odds with the law. If the impugned decision lies within a range of permissible decisions, a Judicial Review court may not interfere only because it favours a different option within the range..."
122. In Municipal Council of Mombasa v Republic & Another [2002] eKLR the Court of Appeal expressed itself as follows:
"The court would only be concerned with the process leading to the making of the decision. How was the decision arrived at? Did those who made the decision have the power, i.e. the jurisdiction to make it? Were the persons affected by the decision heard before it was made? In making the decision, did the decision maker take into account relevant matters or did he take into account irrelevant matters? These are the kind of questions a court hearing a matter by way of judicial review is concerned with, and such court is not entitled to act as a court of appeal over the decider; acting as an appeal court over the decide,would involve going into the merits of the decision itself._
whether there was sufficient evidence to support the decision —and that, as we have, is not the province of judicial review".
123. In Republic v Public Procurement Administrative Review Board & 2 others Ex parte RongoUniversity [2018] eKLR, the court stated as follows: "Illegality is divided into two categories: those that, if proved, mean that the public authority was not empowered to take action or make the decision it did; and those that relate to whether the authority exercised its discretion properly. Grounds within the first category are simple ultra vires and errors as to precedent facts; while errors of law on the face of the record, making decisions on the basis of insufficient evidence or errors of material facts, taking into account irrelevant considerations or failing to take into account relevant ones, making decisions for improper purposes, fettering of discretion, and failing to fulfill substantive legitimate expectations are grounds within the second category."
In Republic v Public Procurement Administrative Review Board & 3 Others, Ex Parte Olive Telecommunication PVT Limited eKLR, the Court of Appeal stated as follows:
"...In our view, to justify interference the decision in question must be so grossly unreasonable that no authority, addressing itself to the facts and the law would have arrived at such a decision. In other words, such a decision must be deemed to be so outrageous in defiance of logic or acceptable moral standards that no sensible person applying his mind to the question to be decided would have arrived at it."
124. In Kenya Pipeline Company Limited vs. Hyosung Ebara Company Limited & 2 others [2012] eKLR the learned judges observed that:
"In conclusion, it is manifest that the application for Judicial Review was not well founded. The 1st Respondent did not establish that the Review Board had acted without jurisdiction or in excess of jurisdiction or in breach of rules of natural justice or that the decision was irrational. The Judicial Review was not confined to the decision-making process but rather with the correctness of the decision on matters of both law and fact. So long as the proceedings of the Review Board were regular and it had jurisdiction to adjudicate upon the matters raised in the Request for Review, it was as much entitled to decide those matters wrongly as it was to decide them rightly".
125. It is its case that the proceedings before the review board were regular and it had jurisdiction to adjudicate upon the matters raised in the impugned decision.,
126. The 1st and 2nd Respondents acted under the instructions of the Review Board, conducted due diligence and indeed wrote a letter to the applicant explaining that at the time of tender application, they were not qualified and their certificate did not cover the scope of the tender requirements to render it valid.
127. The Applicants allegation that they had a valid Certificate yet it is the same certificate that let to cancellation of the tender by the review board in the first instance is a redundant argument.
Analysis and determination;
129. From the material before court, the issues for determination are;
1. Whether this court has jurisdiction
2. Whether the orders sought can be granted
Issue of jurisdiction;
Section 167 (1) of the public procurement and assets disposal act provides “Subject to the provisions of this Part, a candidate or a tenderer, who claims to have suffered or to risk suffering, loss or damage due to the breach of a duty imposed on a procuring entity by this Act or the Regulations, may seek administrative review within fourteen days of notification of award or date of occurrence of the alleged breach at any stage of the procurement process, or disposal process as in such manner as may be prescribed.”
130. In Geoffrey Muthinja & another v Samuel MugunaHenry & 1756 others [2015] eKLR the Court of Appeal upheld the doctrine of exhaustion as follows as follows:
“It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews….. The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the courts. The Ex Parte Applicants argue that this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution…the exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside of courts. This accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.”
3.16. The principle of exhaustion dictates that where a mechanism has been provided for the resolution of a dispute, that procedure should strictly be followed and exhausted before this Honourable Court’s judicial review jurisdiction is invoked. In the case of Speaker of The National Assembly vs. Karume Civil Application No. Nai. 92 of 1992 which was cited with approval in the case of Republic vs. Ministry of Interior and Coordination of National Government and Another ex parte ZTE Judicial Review Case No. 441 of 2013the Court held thus:
“…one must not lose sight of the fact that the decision whether or not to grant judicial review orders is an exercise of judicial discretion and as was held by Ochieng, J in John Fitzgerald Kennedy Omanga vs. The Postmaster General Postal Corporation of Kenya & 2 Others Nairobi HCMA No. 997 of 2003, for the Court to require the alternative procedure to be exhausted prior to resorting to judicial review is in accord with judicial review being very properly regarded as a remedy of last resort though the applicant will not be required to resort to some other procedure if that other procedure is less convenient or otherwise less appropriate. This position was re-affirmed by the Court of Appeal in Speaker of The National Assembly vs. Karume Civil Application No. Nai. 92 of 1992, where it was held that there is considerable merit in the submission that where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures.” [Emphasis].
131. The applicant confirms that The 1st Respondent issued the Ex-parte Applicant with a notice of intention to award the Subject Tender dated 23rdNovember 2023 to the Interested Party.
132. In the notice of intention to award, the 1st Respondent claimed that the Interested Party was the 2nd Lowest Technically evaluated bidder with a bid of Kshs 242,651,000.00.
133. In the notice of intention to award the Subject Tender dated 23rd November 2023 the 1st Respondent claimed that the Ex-parte Applicant’s bid was unsuccessful because it did not provide a valid registration certificate by the Private Security Regulations Authority (PSRA).
134. The 1st and 2ndRespondents has not issued a Notification of Award, but letters of Intention to Award the tender.
135. The applicant has an option to seek administrative review within fourteen days of notification of award in the event it is aggrieved by the intention to award the tender.
136. The applicant seeks to prematurely seek judicial review orders by ignoring the statutory steps and the redress mechanism chain that is available under Section167 of The PPAD Act.
Section 9 of the Fair Administrative Actions Act (hereafter “the FAA Act") provides for the procedure for judicial review as follows:
“Subject to subjection (2) a person who is aggrieved by an administrative action may, without unreasonable delay, apply for judicial review of any administrative action to the High Court or to a Subordinate Court upon which original jurisdiction is conferred pursuant to Article 22 (3) of the Constitution.
The High Court or a Subordinate Court under sub section (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.
The High Court or a Subordinate Court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under sub-section (1).
Notwithstanding subsection (3), the High Court or a Subordinate Court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the Court considers such exemption to be in the interest of justice.
A person aggrieved by an order made in exercise of the exercise of the judicial review jurisdiction of the High Court may appeal to the Court of Appeal.”
137. The applicant cannot disregard the available Statutory redress mechanisms since this would render Section 9 of the Fair Administrative Action Act otiose.
138. The judicial review remedies have been sought prematurely and in a blatant breach of the doctrine of exhaustion as a result of which this court finds that it lacks jurisdiction to preside over and determine the instant judicial review application and I so hold.
139. In order for the court to exercise its discretion to exempt the exparte Applicant from the obligation to exhaust any remedy under Section 9 (4) of the Fair Administrative Actions Act the Exparte Applicant must demonstrate that there are exceptional circumstances and the court must be moved through an application by the applicant.
140. The Ex parte Applicant did not move the court nor seek for under Section 9 (4) of the Fair Administrative Actions Act orally or otherwise.
64. In the case of Republic v Firearms Licensing Board & another Ex parteBoniface Mwaura [2019] eKLR and held as follows;
“While, exceptions to the exhaustion requirement are not clearly delineated, courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved — including level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies. The High Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it."
141. In the instant suit, the applicant has not demonstrated how they are eligible to the exception to the application of the doctrine of exhaustion and I hold.
142. This court is bound by the Supreme Court Case of Dickson Ngigi Ngugi v Commissioner of Lands S.C Petition No. 9 of 2019 [2019] eKLR, [36] “Jurisdiction goes to the root of any cause or dispute before a court of law. A court must exercise restraint to avoid overstepping its constitutional role in order to maintain its legitimacy. If a court has no jurisdiction, a judgment rendered therein does not adjudicate the dispute. It does not bind the parties, nor can it be made the foundation of any right. It is a nullity without life or authority”.
143. In short, it is coram non judice and amounts to a nullity because, as Nyarangi, JA famously said in the locus classicus, Owners of the Motor Vessel "Lillian S" v Caltex Oil, (Kenya) Ltd [1989] KLR 1, "jurisdiction is everything. Without it, a court has no power to make one more step".
144. The court lacks the jurisdiction to determine the second issue.
Order:
The Notice of motion dated 11th December 2023 is struck out with costs.
Dated, signed and delivered virtually at Nairobi this 5th day of April, 2024
………………………………
J. CHIGITI (SC)
JUDGE
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW MISCELLANEOUS APPLICATION NO. E 135 OF 2023
BETWEEN
REPUBLIC ……………………………………………….. APPLICANT
AND
THE PRINCIPAL SECRETARY,
THE NATIONAL TREASURY & ECONOMIC PLANNING…………………… 1ST RESPONDENT
THE NATIONAL TREASURY & ECONOMIC PLANNING…….2ND RESPONDENT
THE HONOURABLE ATTORNEY GENERAL …………………..3RD RESPONDENT
AND
M/S GAPS TECH SOLUTIONS LIMITED ……………………...INTERESTED PARTY
VS
M/S CORPRISK AFRICA LIMITED…………………….. EX- PARTE APPLICANT
JUDGMENT
1. The application that is before this court for determination is the one dated 11th December 2023 wherein the applicant is seeking orders that:
(a) This Honorable Court issues an order of CERTIORARI quashing the notification to award the subject tender dated 23rd November 2023 by the 1st and 2nd Respondent to the Interested Party.
(b) This Honorable Court issues an order of CERTIORARI quashing the declaration of the Ex-parte Applicant‘s bid as non-responsive in its letter dated 28th November 2023.
(c) This Honorable Court issues an order of MANDAMUS compelling the Procuring Entity to direct its evaluation committee to conduct due diligence strictly according to the Subject Tender document and the law.
(d) Costs of this application be awarded to the Ex-parte Applicant against the Respondents and the Interested Party.
2. The application is predicated on the affidavit verifying facts sworn by David Kimani Kiriro on 7th December 2023 and the further affidavit verifying facts sworn by David Kimani Kiriro on 15th December 2023 and statutory statement.
The Ex- parte applicant ‘s case;
3. On the 22nd November 2022, the 2nd Respondent hereinafter referred to as ‘the Procuring Entity’ advertised for TENDER NO. TNT/007/2022-2023 FOR PROVISION OF FLEET MANAGEMENT SOLUTIONS FOR THE MOTOR VEHICLES LEASING PROGRAMME PHASE VII (herein referred to as “the Subject Tender’’).
4. The Tender was closed on 19th January 2023 at 11:00 AM. It had attracted 11 bidders, amongst them the Ex-parte Applicant and the Interested Party herein.
5. From the preliminary evaluation stageonly the Ex-parte Applicant and the Interested Party were considered responsive at the technical evaluation stage.
6. The tenders were subjected to the financial evaluation where the Ex-parte Applicant’s tender was ranked first, having quoted the lowest bid in the sum of Kes. 179,091,050whilst the Interested Party’s tender was ranked 2nd having quoted a sum of Kes. 242,651,000.00.
7. Having found that the Ex-parte Applicant was the lowest technically qualified bidder, the procuring entity communicated to the Ex-parte Applicant of its intention to award it the subject tender and also informed the other tenderers, including the Interested Party herein of this intention, vide the letters dated 12th July 2023.
8. The Interested Party was dissatisfied with the award of the tender to the Ex-parte Applicant and filed an application for review of the award of the tender to the Public Procurement Administrative Review Board, in accordance with Section 167(1) of the Public Procurement and Assets Disposal Act 2015, this was, PPARB Application 58 of 2023- M/S Gaps Tech Solutions Limited v The Principal Secretary, The National & The National Treasury and M/S Corprisk Africa Limited (hereafter referred to as the “PPARB No. 58 of 2023).
9. The crux of the Interested Party’s complaint before the Board in PPARB No. 58 of 2023 was that the Ex-parte Applicant allegedly did not have the mandatory requirement No. 19 provided on page 28 of the tender document. The mandatory requirement, required bidders to furnish that is:
19. Certified Copy of valid registration by Private Security Regulatory Authority.
10. In challenging the Interested Party’s averment, the Ex-parte Applicant claim that it did indeed comply with mandatory requirement No. 19 on page 28 of the tender document the Ex-parte Applicant implores this Honorable Court to turn to page 201 of its Annexure DK-1 which is a certified copy of valid registration by the Private Security Regulatory Authority.
11. On 1st September 2023, the Public Procurement Administrative Review Board delivered its ruling in PPARB No. 58 of 2023 wherein the notification of intention to award the tender to the Ex-parte Applicant was set aside and cancelled and the 1st Respondent was ordered to direct the Evaluation Committee of the Procuring Entity to conduct due diligence in accordance with the Tender Document and the law. The ruling of the Board is now spent. The Ex-parte applicant is not aggrieved by it. The Interested Party’s averment that this application for judicial review is an appeal from the decision of the Board is inaccurate.
12. The Ex-parte Applicant submits that the ruling of the Board in PPARB No. 58 of 2023 did not declare any bid non-responsive nor did it amend the Subject Tender. The orders given to the Procuring Entity were limited to conducing due diligence over the validity of the Ex-parte Applicant’s certificate of registration from the Private Security Regulations Authority (PSRA) in accordance with the Tender Document.
13. The 1st Respondent issued the Ex-parte Applicant with a notice of intention to award the Subject Tender dated 23rdNovember 2023 to the Interested Party. In the notice of intention to award, the 1st Respondent claimed that the Interested Party was the 2nd Lowest Technically evaluated bidder with a bid of Kshs 242,651,000.00.
14. In the notice of intention to award the subject Tender dated 23rd November 2023 the 1st Respondent claimed that the Ex-parte Applicant’s bid was unsuccessful because it did not provide a valid registration certificate by the Private Security Regulations Authority (PSRA).
15. Being aggrieved by the notice of intention to award the Subject Tender dated 23rd November 2023, the Ex-parte Applicant wrote a letter dated 27th November 2023 seeking debriefing in relation to evaluation of the tender. In the said letter the Ex-parte Applicant sought confirmation on whether its bid was responsive and whether it was indeed the lowest bidder.
16. In response to the request for debriefing, the 1st Respondent wrote a letter dated 28th November 2023 to the Ex-parte Applicant in which it claimed that it wrote to the Public Security Regulatory Authority (PRSA) and was informed that as at 30th August 2023, the Ex-parte Applicant had not been registered/ licensed to provide car tracking, satellite tracking and/or to undertake the distribution and installation of any electronic monitoring devices or surveillance equipment.
17. The specific registration to provide car tracking, satellite tracking and/or to undertake the distribution and installation of any electronic monitoring devices or surveillance equipment was not required as a mandatory document in the subject tender. It was brought up after the tender closed.
18. Further, in the letter dated 28th November 2023, the 1st Respondent claimed that” … the certificate you presented from the Public Security Regulatory Authority (PSRA)(sic) was not valid, hence rendering your bid non-responsive”.
19. In the letter dated 28th November 2023, the 1st Respondent claimed that the 2nd Respondent wrote to the PRSA requesting for a copy of the Certificate of registration in respect to the Applicant and as at the date of the letter the same had not been received.
20. The Public Security Regulatory Authority (PSRA) was not required to provide anything in the tender document. What was required was a valid document from the Private Security Regulatory Authority.
23. The Ex-parte Applicant submits that by arbitrarily declaring its bid non-responsive in its letter to the Petitioner dated 28th November 2023, the 1st Respondent has un-procedurally stripped it of locus standi to move the Public Procurement Administrative Review Board (PPARB) for redress as Section 167 (1) of the Procurement and Assets Disposal Act, 2015 limits the jurisdiction of the PPARB to review, hear and determine disputes on tendering and asset disposal disputes from a responsive tenderer.
24. Section 167 of the Public Procurement and Asset Disposal Act (2015) provides that:
(1) Subject to the provisions of this Part, a candidate or a tenderer, who claims to have suffered or to risk suffering, loss or damage due to the breach of a duty imposed on a procuring entity by this Act or the Regulations, may seek administrative review within fourteen days of notification of award or date of occurrence of the alleged breach at any stage of the procurement process, or disposal process as in such manner as may be prescribed.
(2) A request for review shall be accompanied by such refundable deposit as may be prescribed in the regulations, and such deposit shall not be less than ten per cent of the cost of the contract: Provided that this shall not apply to tenders reserved for women, youth, persons with disabilities and other disadvantaged groups.
(3) A request for review shall be heard and determined in an open forum unless the matter at hand is likely to compromise national security or the review procedure.
(4) The following matters shall not be subject to the review of procurement proceedings under subsection (1)— (a) the choice of a procurement method; (b) a termination of a procurement or asset disposal proceedings in accordance with section 63 of this Act; and (c) where a contract is signed in accordance with section 135 of this Act.
25. Reliance is placed in the case of James Oyondi t/a Betoyo Contractors & another v Elroba Enterprises Limited & 8 others [2019] eKLR in determining who has locus to file an application for review before the Public Procurement Administrative Review Board, the Court of Appeal held as follows:
“It seems plain to us that in order to file a review application, a candidate or tenderer must at the very least claim to have suffered or to be at the risk of suffering loss or damage. It is not any and every candidate or tenderer who has a right to file for administrative review. Were that the case, the Board would be inundated by an avalanche of frivolous review applications. There is sound reason why only candidates or tenderers who have legitimate grievances may approach the Board. In the present case, it is common ground that the appellants were eliminated at the very preliminary stages of the procurement process, having failed to make it even to the evaluation stage. They therefore were, with respect, the kind of busy bodies that section 167(1) was designed of keep out. The Board ought to have ruled them to have no locus, and the learned Judge was right to reverse it for failing to do so. We have no difficulty upholding the learned Judge.
Having come to those conclusions on the locus standi of the appellants and having found that the learned Judge properly quashed the Board’s proceedings and decision, we think it is only logical that the dispositive orders made by the learned Judge be also upheld. The tendering process was complete and the successful candidates, the petitioners, were known. The process had been delayed by all manner of factors including at the last, the review proceedings filed by the appellants. It was only logical and fair and in the interests of sound management of public resources, that the process be completed, hence the direction by the learned Judge that the contracts be executed. We see no error in that direction.”
27. In Republic v Independent Electoral and Boundaries Commission & Another Ex Parte Coalition for Reform and Democracy & 2 Others [2017] eKLR in determining the issue of whether Section 167 of the PPADA 2015 ousts the jurisdiction of the High Court Odunga J (as he then was) held as follows:
“173. With respect to the matters raised in these proceedings, it is clear that the applicant could not move the Review Board for determination. I agree with the IEBC that pursuant to section 167(1) of the Public Procurement and Asset Disposal Act, 2015 administrative review is available only to the candidates or tenderers and that the Applicant was neither a candidate nor a tenderer in the subject procurement. Strictly speaking therefore, it was not the spirit or text of that law that parties other than candidates or tenderers should be permitted to challenge procurement processes through the procedure provided for under the Act. To that extent I agree that persons who fall within the category of the Applicant herein have no locus to commence proceedings before the Review Board.
174. This does not however mean that a person aggrieved by the action of the Procuring Entity, in such circumstances is left without a remedy. In my view, the remedy in such circumstances is to be found in section 174 of the Public Procurement and Asset Disposal Act which provides as follows:
The right to request a review under this Part is in addition to any other legal remedy a person may have.
175. In my view a person who would otherwise be locked out from invoking the provisions of the Public Procurement and Asset Disposal Act is not barred from seeking alternative remedy under other provisions of the law. This was the position adopted by this Court in Elias Mwangi Mugwe vs. Public Procurement Administrative Review Board & 5 Others [2016] eKLR where the Court expressed itself as hereunder:
“…any person who has no automatic right to participate in the review proceedings may properly resort to other available modes of ventilating his rights.”
176. It is not in doubt that one of the available remedies for challenging a decision made by the IEBC is to apply for judicial review which is what the ex parte applicant sought in these proceedings.”
28. The Ex-parte Applicant further relies on the finding of Justice G V Odunga in the case of Republic V Chief Magistrate Milimani Commercial Court & 2 Others Ex-Parte Violent Ndanu Mutinda & 5 Others [2014] Eklr which considered the grounds upon which the court will exercise its judicial review jurisdiction and stated thus:
“The broad grounds on which the Court exercises its judicial review jurisdiction were restated in the Uganda case of Pastoli vs. Kabale District Local Government Council and Others [2008] 2 EA 300. In that case the Court cited with approval Council of Civil Unions Vs. Minister for the Civil Service [1985] AC 2 and An Application by Bukoba Gymkhana Club [1963] EA 478 at 479 and held:
“In order to succeed in an application for judicial review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety…
Illegality is when the decision-making authority commits an error of law in the process of taking or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality. It is, for example, illegality, where a Chief Administrative Officer of a District interdicts a public servant on the direction of the District Executive Committee, when the powers to do so are vested by law in the District Service Commission… Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards….
Procedural Impropriety is when there is a failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or Legislative Instrument by which such authority exercises jurisdiction to make a decision”.
29. As the Ex-parte Applicant was illegally stripped of locus standi to move the Public Procurement Administrative Review Board (PPARB) for redress as section 167 (1) of the Procurement and Assets Disposal Act, 2015, its only recourse is to seek justice from this Court.
30. This Court does not require the Ex-parte Applicant to pay security tethered to the contact sum to approach it for an application for judicial review. The averment in paragraph 27 of the replying affidavit sworn by Gilbert Odadi is inaccurate. Further the Private Security Regulatory Authority (PRSA) is not a party to these proceedings.
31. The Ex-parte Applicant also implores this Court to disregard the wild allegations of criminality against it from the Interested Party along with the irrelevant contemptuous expressions against it by the Interested Party. The Ex-parte Applicant is not interested in the hearing described in paragraph 25 of the replying affidavit sworn by Gilbert Odadi.
32. The Ex-parte Applicant submits that the Evaluation relied on criterion outside what was set out in the Subject Tender Document in carrying out its due diligence therefore the resultant decision was tainted with illegality, irrationality and procedural improprieties for the following reasons:
33. In the notice of intention to award the Subject Tender dated 23rd November 2023 the 1st Respondent informed the Ex-parte Applicant of the following:
“Your bid was unsuccessful because of not providing a valid registration certificate by the Private Security Regulatory Authority (PSRA); as conformed during the due diligence exercise ordered by the Public Procurement Administrative Review Board. “
34. In a further letter dated 28th November 2023, the 1st Respondent wrote to the Ex-parte Applicant where it stated as follows:
“Subsequently, the National Treasury vide letter Ref. TNT/007/2020-2023 (17) dated 6th September 2023 requested the Private Security Regulatory to confirm and verify the qualifications of your company as directed by the Review Board.
The Public Security Regulatory Authority (PSRA) vide their letter Ref. PSRA/PSRA/TNT/230/01(2) dated 26th September 2023 noted that as at 30thAugust 2023 M/S Corprisk Africa Limited had not been registered/ licensed to provide car tracking, satellite tracking and/or undertake the distributionand installation of any other electronic monitoring devices or surveillance equipment including Fleet Management Solutions.
They further indicated that M/S Corprisk Africa Limited were registered/ licensed to provide car tracking, satellite tracking and/or undertake the distribution and installation of any other electronic monitoring devices or surveillance equipment including Fleet Management Solutions on 20thSeptember 2023.”
35. The Ex-parte Applicant avers that the specific licence/ registration to provide car tracking or satellite tracking was not set out as a requirement in the tender document therefore, using is as a basis to disqualify the Ex-parte Applicant’s bid was not procedurally proper.
36. By its own admission in the said letter dated 28th November 2023, the 1st Respondent confessed that the procuring entity took it upon itself to look for and consider a specific license/ registration to provide car tracking or satellite tracking as a precondition for qualification. The Ex-parte Applicant reiterates that this was a mandatory document that was not set out in the tender document.
37. The Ex-parte Applicant submits that mandatory requirement No. 19 provided of the tender document required bidders to provide a; “Certified Copy of valid registration by Private Security Regulatory Authority.” This was all that was required in the subject tender.
38. The Ex-parte Applicant relies on the holding of the Courtin Okiya Omtatah Okoiti & 3 others v Anne Waiguru, the Cabinet Secretary, Devolution and Planning & 6 others [2021] eKLR where the court held
“An act of ultra vires when the decision making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires or contrary to the provisions of law or its principles renders the decision made laced with illegality.”
40. Section 75 of the Public Procurement and Asset Disposal Act clearly sets out the procedure for modifications to tender documents as follows:
(1) A procuring entity may amend the tender documents at any time before the deadline for submitting tenders by issuing an addendum without materially altering the substance of the original tender.
(2) An amendment may be made on the procuring entity's own initiative or in response to an inquiry by a candidate or tenderer.
(3) A procuring entity shall promptly provide a copy of the addendum to each person to whom the procuring entity provided copies of the tender documents.
(4) The addendum shall be deemed to be part of the tender documents.
(5) If the tender documents are amended when the time remaining before the deadline for submitting tenders is less than one third of the time allowed for the preparation of tenders, or the time remaining is less than the period indicated in instructions to tenderers, the accounting officer of a procuring entity shall extend the deadline as necessary to allow the amendment of the tender documents to be taken into account in the preparation or amendment of tenders.
41. Modification of a tender document cannot be an afterthought where the Evaluation Committee discovers that a certain document is good to have then declares it to be a mandatory document thus modifying the Tender Document after the deadline for submitting bids has closed.
42. Section 76(2) of the Public Procurement and Asset Disposal Act provides that after the deadline for submitting tenders, a person who submitted a tender shall not change or offer to change the terms of that tender. Therefore, after the deadline for submitting tenders closed on 19th January 2023, the Procuring Entity did not have power to modify the Subject Tender and the Tenderers did not have power to modify their bid. What was submitted by either party, that is, the Procuring Entity and the Tenderers, would be what would be used to determine the winner.
43. The Ex-parte Applicant submits that the Procuring Entity had a legal duty to act in accordance with the law and the tender document and it has unlawfully refused to follow the law by illegally modifying the tender document to require the production of a document that was not set out in the tender as a basis for declaring the Ex-parte Applicant’s bid non-responsive.
44. The Ex-parte Applicant submits that the Procuring entity has made a decision 'beyond the powers' (in Latin, this is known as 'ultra vires') for after the deadline for submitting tenders closed, the Procuring Entity’s power to modify the tender document was stripped away and it could not make this modification tacitly at the due diligence evaluation stage.
51. The Ex-parte Applicant submits that it had a legitimate expectation that the Procuring Entity would comply with the criterion set out in the Subject Tender to evaluate bids.
52. By failing to comply with the criteria set out in the subject Tender Document, the Procuring Entity has subverted the purpose of supplying information to bidders for the preparation of tenders. This amounts to unfairness for the bids were marked against criteria set after the fact as they were not in the tender document thus disadvantaging the Ex-parte Applicant while allowing the Interested Party to gain an unfair advantage.
53. The Ex-parte Applicant does not claim to have had a legitimate expectation to win the tender, rather, it asserts that it had a right to a legitimate expectation that the Procuring Entity will judge it solely based on the Subject Tender, no more and no less.
49. In Keroche Industries Limited vs. Kenya Revenue Authority & 5 Others Nairobi HCMA NO. 743 of 2006 [2007] 2 KLR 240, Nyamu, J expounded on the doctrine of legitimate expectation as follows:
“Stated simply legitimate expectation arises for example where a member of the public as a result of a promise or other conduct expects that he will be treated in one way and the public body wishes to treat him or her in a different way.”
50. In Republic v Public Procurement Administrative Review Board & another; Premier Verification Quality Services (PVQS) Limited (Interested Party) Ex Parte Tuv Austria Turk [2020] eKLR, the court held that
39. Such formalities are usually listed in bid documents as mandatory requirements – in other words, they are a sine qua non for further consideration in the evaluation process. The standard practice in the public sector is that bids are first evaluated for compliance with responsiveness criteria before being evaluated for compliance with other criteria, such as functionality, pricing or empowerment. Bidders found to be non-responsive are excluded from the bid process regardless of the merits of their bids. Responsiveness thus serves as an important first hurdle for bidders to overcome.
40. In public procurement regulation it is a general rule that procuring entities should consider only conforming, compliant or responsive tenders. Tenders should comply with all aspects of the invitation to tender and meet any other requirements laid down by the procuring entity in its tender documents. Bidders should, in other words, comply with tender conditions; a failure to do so would defeat the underlying purpose of supplying information to bidders for the preparation of tenders and amount to unfairness if some bidders were allowed to circumvent tender conditions. It is important for bidders to compete on an equal footing. Moreover, they have a legitimate expectation that the procuring entity will comply with its own tender conditions. Requiring bidders to submit responsive, conforming or compliant tenders also promotes objectivity and encourages wide competition in that all bidders are required to tender on the same work and to the same terms and conditions.”
54. In the 1st Respondents letter to the Ex-parte Applicant dated 28th November 2023 the Procuring Entity relays the following confirmation from the Public Security Regulatory Authority (PRSA):
“They further indicated that M/s Coprisk Africa Limited were registered/ license to provide car tracking, satellite tracking and/ or to undertake the distribution and installation of any electronic monitoring devices or surveillance equipment including Fleet Management Solutions on 20th September 2023.”
56. The Ex-parte Applicant submits that the Procuring Entity has violated its right of legitimate expectation by illegally modifying the Tender Document after deadline for submitting tenders closed thus breaching section 75(1) of the Public Procurement and Asset Disposal Act then arbitrarily and ultra vires declaring the specific registration to for provision of car tracking services a mandatory document due at the closing date.
58. The Ex-parte Applicant submits that the Procuring Entity has acted illegally, arbitrarily, unprocedurally, and ultra vires in declaring its bid non-responsive based on extrinsic criteria conjured up outside the Subject Tender Document.
59. The Ex-parte Applicant submits that is has succeeded in meeting the standard set in Pastoli vs Kabale District Local Government council and Other (2008) 2 EA 300.
60. The Ex-parte Applicant has demonstrated that the Procuring Entity’s decision to use criteria other than that set in the tender document to declare its bid as non-responsive is tainted with illegality, irrationality and procedural improper.
61. The Procuring Entity’s decision to modify the tender document after the deadline for submitting tenders closed was an illegality and an ultra vires decision made in contravention of section 75(1) of the Public Procurement and Asset Disposal Act which limits its power to amend the tender document to before the deadline for submitting tenders and strips it away by operation of the law after the said deadline closed.
62. The Procuring Entity’s decision to consider extrinsic factors that were not set out in the Subject Tender was grossly unreasonable as no reasonable authority, addressing itself to the facts and the law before it would have made such a decision to search outside the four corners of the Subject Tender document to confer an advantage to the Interested Party to the detriment of the Ex-parte Applicant. The Ex-parte Applicant submits that this decision violated its right of legitimate expectation.
65. It is trite law that costs follow the event, being a victim of the Procuring Entity’s illegal, ultra vires, unprocedural and unfair actions geared towards disadvantaging the Ex-parte Applicant and favoring the Interested Party. 66. The Ex-parte Applicant submits that it ought to be awarded costs of its claim against the Respondents and Interested Party.
The Respondent’s case:
67. In response to the Notice of Motion dated 11th December 2023, The Respondent filed a replying affidavit dated 19thJanuary 2024 sworn by Dr. Chris Kiptoo the Principal Secretary for the National treasury.
68. According to him, the award of tender on 23rd November 2023 was legal and Constitutional and in response to the Ex parte Applicant’s Notice of Motion application dated 11thDecember 2023.
69. The Leasing Programme for official Government transport was announced in the Budget Statement for the 2010/2011 Financial Year, by the then Hon. Deputy Prime Minister and Minister for Finance H.E Uhuru Kenyatta.
70. The Tender was advertised on Tuesday 22nd November, 2022 and closed/opened on Thursday 19th January 2023.
71.The Tender Evaluation Committee recommended that the tender be awarded to M/s Corprisk Africa Limited subject to due diligence being undertaken.
72. The Due diligence exercise was undertaken from 23rd March 2023 to 4th May, 2023.
73.According to the respondents the court lacks jurisdiction for the reason that the instant application violates the doctrine of exhaustion of administrative remedies which requires that a person challenging an administrative decision must first pursue available remedies before seeking judicial review.
74. The Doctrine of Exhaustion is defined in Blacks Law Dictionary 10th Edition as follows:-
“exhaustion of remedies. The doctrine that, if an administrative remedy is provided by statute, a claimant must seek relief first from the administrative body before judicial relief is available. The Doctrine’s purpose is to maintain comity between the courts and administrative agencies and to ensure that courts will not be burdened by cases in which juridical relief is unnecessary.
75. Section 9 of the Fair Administrative Action Act provides for the doctrine of Exhaustion thus –
Procedure for judicial review
(1) Subject to subsection (2), a person who is aggrieved by an administrative action may, without unreasonable delay, apply for judicial review of any administrative action to the High Court or to a subordinate court upon which original jurisdiction is conferred pursuant to Article 22(3) of the Constitution.
(2) The High Court or a subordinate court under subsection (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.
(3) The High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under sub-section (1).
76. Reliance is also placed in the case of Republic v National Environment Management Authority Ex parte Sound Equipment Ltd, (supra), where the Court of Appeal observed: -
“... Where there was an alternative remedy and especially where Parliament had provided a statutory appeal procedure, it is only in exceptional circumstances that an order for judicial review would be granted and that in determining whether an exception should be made and judicial review granted, it is necessary for the court to look carefully at the suitability of the statutory appeal in the context of the particular case and ask itself what, in the context of the statutory powers, was the real issue to be determined and whether the statutory appeal procedure was suitable to determine it ...”
In Secretary, County Public Service Board & another v Hulbhai Gedi Abdille [2017] eKLR where the Court held that:
“There is no doubt that the respondent initiated the judicial review proceedings in utter disregard to the dispute resolution mechanism availed by Section 77 of the Act. The section provides not only a forum through which the respondent could agitate her grievance at first instance, but the jurisdiction thereof is a specialized one, specifically tailored by the legislators to meet needs such as the respondent’s. In our view, the most suitable and appropriate recourse for the respondent was to invoke the appellate procedure under the Act rather than resort to the judicial process in the first instance. In terms of Republic v National Environment Management Authority (supra), we discern no exceptional circumstances in this appeal that would have warranted the bypassing of the statutory appellate process by the respondent. Her contention that she disregarded the appeal because it could not afford her an opportunity to question the procedure followed by the appellant is in our view, without basis because Section 77 has placed no fetter to the jurisdiction of the Public Service Commission. There is no requirement for instance that reasons for the decision be availed to an aggrieved party before he can prosecute an appeal before it.”
The Respondent argues that the Applicant has not exhausted the existing review mechanisms i.e. requesting for review pursuant to Section 167 and 168 of the Public Procurement and Asset Disposal Act, 2015.
77. It is the 1st and 2nd respondent case that in the award on 23rd November 2023 to the Interested Party was carried out in full compliance with the procurement laws.
78. In the case of Pastoli Vs Kabale District And Others (2008) 2 E.A. 300 the court set out the duty of a court in Judicial Review applications as follows: -
“In order to succeed in an application for Judicial Review, the Applicant has to show that the decision or the act complained of is tainted with illegality, irrationality and procedural impropriety……Illegality is when the decision making authority commits an error of law in the process of taking or making the act the subject of the complaint. Acting without jurisdiction or ultra vires or contrary to the provisions of law or its principles are instances of illegality…….irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority would have made such a decision is usually in defiance of logic and acceptable moral standards……Procedural impropriety is when there is a failure to act fairly on the part of the decision making authority in the process of taking a decision. The unfairness may be in non -observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative instrument by which such authority exercises jurisdiction to make a decision.”
79. In the case of Municipal Council of Mombasa VsRepublic Umoja Consultants Ltd Civil Appeal No. 185 of 2007 (2002) eKLR the court of appeal set out the parameters in applications for JR and held that: -
“The court would only be concerned with the process leading to the making of the decision. How was the decision arrived at. Did those who made the decision have power i.e. Jurisdiction to make it. Were the provisions affected by the decision heard before it was made. In making the decision, did the decision maker take into account relevant matters or did the take into account irrelevant matters. These are the kind of questions a court hearing a matte by way of judicial review is concerned with and such court is not entitled to act as a court of appeal over the decider. Acting as an appeal court over the decider would involve going into the merits of the decision itself – such as whether this was or there was no sufficient evidence to support the decision and that as we have said, is not the province of judicial review.”
80. .The 1st and 2nd Respondent vide letter Ref. TNT/007.2022-2023(17) dated 6th September, 2023 requested the Private Security Regulatory Authority (PSRA) to confirm whether the Applicant was vetted, the types of security related services they provided and if they are qualified to offer Fleet Management Services.
81. On 7th September, 2023, 1st and 2nd Respondent filed a Notice of Motion at the PPRB to allow for the extension of the tender validity period as well as the bid validity period for ninety (90) days allowing undertaking of due diligence and the subsequent processes as directed by the Board.
82.The PPRB in their Orders dated 25th September 2023 granted the National Treasury authority to extend the tender validity period and the bid security validity period for ninety (90) days from 8th September, 2023 to allow for conclusion of the procurement process.
83. On 29th September, 2023 the 1st & 2nd requested all the tenderers to extend their tender validity period for a period of ninety (90) days with effect from 8th September,2023 up to 8thDecember, 2023 and at the same time extend the bid security validity from 8th September,2023 up to 8thDecember, 2023.
84. Thereafter, the Private Security Regulatory Authority (PSRA) vide their letter dated 26th September, 2023 noted that as at 30th August, 2023, the Applicant had not been registered /licensed to provide car tracking, satellite tracking and/or to undertake the distribution and installation of any other electronic monitoring devices or surveillance equipment including Fleet Management Solution.
85.They further indicated that the Applicant were registered /licensed to provide car tracking, satellite tracking and/or to undertake the distribution and installation of any other electronic monitoring devices or surveillance equipment including Fleet Management Solution on 20th September, 2023.
86.The 1st & 2nd Respondents Accounting Officer therefore granted approval for the Evaluation Committee to undertake due diligence on the Second lowest bidder, M/s. GaptechSolutions Limited (the Interested Party herein) pursuant to section 83 (1) (2) and (3) of the Public Procurement and Asset Dispoal Act, 2015 as read together with Regulation 80 (1) and (2) (a) (b) of Public Procurement and Asset Disposal Regulations and as guided by the Head of Supply Chain Management Services
87.The 1st and 2nd Respondents vide letter dated 21st November, 2023 informed the Interested Party of the intention to undertake due diligence at their premises.
88.The 1st and 2nd Respondents vide letter dated 21st November, 2023 requested PSRA to provide documentation and information to ascertain whether the Interested Party was duly registered and vetted to provide Fleet Management Solution Services.
89. The due diligence exercise was undertaken on 23rd November, 2023 and the evaluation Committee was satisfied that the Interested Party demonstrated the capacity to undertake the services for Provision of Fleet Management Solutions.
90. Pursuant to Sections 84 and 83 (1) (2) and (3) of Public Procurement and Assets Disposal Act, 2015 as read together with Regulation 80 (1) and (2) (a) (b) of the Public Procurement and Assets Disposal Regulations, the Head of Supply Chain Management Services examined the due Diligence Report and the secretariat comments in relation to the tender for Provision of Fleet Management Solution for Motor Vehicles Leasing Programme (Phase VII) and recommended the award to M/s. Gaptech Solutions Limited (the Interested Party) being the 2nd lowest evaluated bidder at total tender sum of Kshs. 242,651,000.00 (Kenya Shillings Two Hundred and Forty-Two Million Six Hundred and Fifty-One Thousand Only) inclusive of all Taxes.
91. The 1st and 2nd Respondents, vide letters dated 23rd November, 2023 notified all the bidders of the intention to award the tender to M/s. Gaptech Solutions Limited being the 2nd lowest evaluated bidder at total tender sum of Kshs. 242,651,000.00 (Kenya Shillings Two Hundred and Forty-Two Million Six Hundred and Fifty-One Thousand Only) inclusive of all Taxes.
92. The Applicant vide letter dated 27thNovember 2023 requested the National Treasury for debriefing as outlined in the tender document page 21 item 44 regarding the following issues:
1) To have a confirmation that their bid was responsive at the preliminary evaluation stage.
2) That their bid of KShs 179,091,050.00 was the lowest responsive bid.
3) A copy of the certificate of registration (if any) received from the Private Security Regulatory Authority (PSRA)
93. The respondent via letter dated 28th November 2023 provided a debrief on the issues raised by the Applicant herein.
94. The Applicant alleged that the 1st and 2ndRespondents acted illegally, unfairly and unconstitutionally by looking for a document that was not required in the subject tender using the same as a basis to declare its bid non-responsive.
95. The 1st and 2nd Respondents actions in processing of this tender were legal, fair and in line with the tender document and provisions of the Public Procurement and Asset Disposal Act, 2015 and its attendant Regulations, 2020.
96. As part of the due diligence process, the 1st and 2ndRespondents vide letter dated 6th September 2023 requested the Private Security Regulatory Authority to provide information to ascertain whether the Applicant was vetted, the types of security related services they were providing and if they were qualified to offer Fleet Management Services.
97. The Private Security Regulatory Authority (PSRA) is a State Corporation established under section 7 of the Private Security Regulation Act No. 13 of 2016 whose mandate is to provide a framework of regulation of private security services.
98. Among the mandatory requirements in the tender document was the provision of a Certificate of Registration from the Private Security Regulatory Authority (PSRA) who are the mandated issuers of the said certificate.
99. In reaching the decision to recommend for award, the 1stand 2nd Respondents was guided by the Private Security Regulatory Authority (PSRA) vide their letter dated 26th September, 2023 which provided that as at 30th August, 2023, the Applicant had not been registered /licensed to provide car tracking, satellite tracking and /or to undertake the distribution and installation of any other electronic monitoring devices or surveillance equipment including Fleet Management Solutions.
100. It is their case that a no Notification of Award has been issued but letters of Intention to Award the tender.
101. The prayer sought for an order of Certiorari and Mandamus cannot be issued as the ex-parte applicant has failed to demonstrate any acts of illegality, irrationality and procedural impropriety on the part of the 1st and 2nd Respondents.
The interested party’s case:
102. The Interested Party herein filed a Replying Affidavit on the 14th December, 2023 in opposition to the Ex-parte Applicants Application dated 1 1 th December, 2023.
103. According to the interested party the application in question is an appeal from the decision of the review board rendered on 1st September 2023.
104. Parties appeared before the review board in opposition to the award made to the Ex-parte Applicant herein on the basis that they were not qualified for the reason that their Certificate from the Private Security Regulations Authority was not valid within the scope of the contract as the time of application as confirmed by the Private security.
105. It was the basis upon which the decision of the 1st and 2nd respondents were set aside and they were directed to conduct fresh due diligence pursuant to the provisions of the law and the contract.
106. The Ex-parte Applicant cannot allege now that they expected the 1st and 2nd Respondents to award the contract to them in spite lack of a valid certificate pursuant to the scope of the contract, advisory of the only regulatory authority within their field and the law.
107. The scope of this Honourable Court is indeed limited to evidence before it and cannot call upon the makers of documents for purposes of cross-examination.
Section 167 of the Public Procurement and Asset Disposal Act, 2015(request for review) provides;
"(1) Subject to the provisions of this part, a candidate or a tenderer, who claims to have suffered or to risk suffering, loss or damage due to the breach of a duty imposed on a procuring entity by this Act or the Regulations, may seek administrative review within fourteen days of notification of award or date of occurrence of the alleged breach at any stage of the procurement process, or disposal process as in such manner as may be prescribed."
108. The Ex-parte applicant cannot allege that they were deprived the locus to appear that Board that has powers as provided under Section 173 to call witnesses and experts for purposes of establishing the issues herein.
Section 173 of sets out the powers of Review Board upon completing a review, the Review Board may do any one or more of the following—
(a) annul anything the accounting officer of a procuring entity has done in the procurement proceedings, including annulling the procurement or disposal proceedings in their entirety
(b) give directions to the accounting officer of a procuring entity with respect to anything to be done or redone in the procurement or disposal proceedings;
(c) substitute the decision of the Review Board for any decision of the accounting officer of a procuring entity in the procurement or disposal proceedings;
accordance with the scale as prescribed; and (e) ordern of
order the payment of costs as between parties to
the procurement process and commencement of a new procurement process.
109. The interested party argues that the Ex-parte applicant should have approached the board with their alleged grievance.
110. For the Ex-parte applicant to have consumed the decision of the Board without filing an appeal under judicial review but to turn around and now start faulting the actions of the 1St and 2nd Respondents arising out of implementation of the decision of the Board is not being candid.
111. Suffice to note that the right to judicial review is provided for under Section 175
(1) of the procurement Act, which states that a person aggrieved by a decision made by the Review Board may seek judicial review by the High Court within fourteen days from the date of the Review Board's decision, failure to which the decision of the Review Board shall be final and binding to both parties.
(2) The application for a judicial review shall be accepted only after the aggrieved party pays a percentage of the contract value as security fee as shall be prescribed in Regulations.
(3) The High Court shall determine the judicial review application within forty five days after such application.
112. The 1st and 2nd Respondents are only implementing orders of the review board arising out of the decision made directing them to undertake due diligence according to the law and contract.
113. The applicant is inviting this Honourable court to order the 1st and 2nd Respondents to overlook the advisory of the only regulatory organ tasked with licensing private security companies, a creature of the constitution.
114. Vide a letter dated 28th November 2023, the 1st Respondent declared the bid to be non-responsive.
Reliance is placed in the case of Republic v Public Procurement Administrative Review Board & 2 Others Ex Parte Rongo University [2018] eKLR
115. The Honourable Court held that grant of orders of certiorari, mandamus and prohibition is discretionary. The court is entitled to take into account the nature of the process against which judicial review is sought and satisfy itself that there is reasonable basis to justify the orders sought.
116. Further In Republic v Public Procurement Administrative Review Board 2 others [2019] eKLRMativo J held as follows...
"The power of the court to Review an administrative action is extraordinary. It is exercised sparingly, in exceptional circumstances where illegality, irrationality or procedural impropriety has been proved.
113. According to them, the Ex-parte applicant has failed to avail their application for certificate that would then prove that their alleged certificate is valid and within the scope of the contract in question.
114. They have further failed to enjoin the regulator (who had advised the 1st and 2nd Respondents) responsible for issuance of the specific certificate which is in contention to at least shed light on the scope of their certificate for indeed it is the expert under these circumstances.
The Court of Appeal in Municipal Council of Mombasa vs. Republic & Umoja Consultants Ltd Civil Appeal No. 185 of 2001 held that
"Judicial review is concerned with the decision making process, not with the merits of the decision itself: the Court would concern itself with such issues as to whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters... The court should not act as a Court of Appeal over the decider which would involve going into the merits of the decision itself-such as whether there was or there was not sufficient evidence to support the decision."
117. They have made reference to Peter Kaluma's book, Judicial Review, Law Procedure and Practice.
Due diligence is defined by Merriam Webster Dictionary as
("The care that a reasonable person exercises to avoid harm to other persons or their property" or "Research and analysis of a company or organization done in preparation for a business transaction (such as a corporate merger or purchase of securities)").
118. To grant or not to grant an order of certiorari or generally any judicial review orders is a matter of discretion of the presiding judge subject to attainment of substantive justice. It is ordinarily issued where a public authority or body has acted without authority or in excess of its jurisdiction.
119. It is clear from the decision of the Public Procurement Administrative Review Boards under Application No. 58/2023 of 11th August, 2023 that:
1. The Board found at page 51 that the 2nd Respondent did not carry out due diligence on the Applicant (hereinafter referred to as Ms. Coprisk) in accordance with Section 83 of the Act read together with Regulation 80 of Regulations 2020. Having found that due diligence conducted on the Applicants tender was not proper.
2. The Letter of Notification of Intention to Award, dated July, 2023 issued by the lst Respondent in respect of the subject tender and addressed to the parties be and are hereby cancelled and set aside.
3. Evaluation committee to conduct due diligence in accordance with the Tender documents and the law to confirm and verify the qualifications of the interested party taking into consideration the Boards findings in the Request for review.
120. This is the decision coupled with Section 83 of the Act, from which the Respondents derived powers to undertake due diligence afresh and call for expert opinion including the Private Security Regulatory Authority.
121. Certainly, validity of a certificate is a question of law which parties cannot purport to run away from and the scope of the same can only be spoken to by the issuing authority.
In the case of Captain Geoffrey Kugoya Murungi v A.G Misc. Civil Application No.293 of 1993 the court held that:
"Certiorari deals with decisions already made ...such an order(certiorari) can only be issued where the court considers that the decision under attack was reached without or in excess of jurisdiction or in breach of the rules of natural justice or contrary to the law.
Thus, an order of certiorari is not a restraining order"
121. In Republic v Public Procurement Administrative Review Board; Shenzhen Instrument Co. Limited & another (Interested Party) Ex parte Kenya Power and Lighting Company Limited [2019] eKLR Mativo J while relying on the decision in Paul Kiplagat Birgen 85 25 Others v Interim Independent Electoral Commission 8s 2 Others [2011] eKLR held as follows;
"A Judicial Review court ought to be slow to substitute its own decision solely because it does not agree with the permissible option chosen by the body. Where a body is granted wide decision-making powers with a number of options or variables, a judicial review court may not interfere unless it is clear that the choice preferred is at odds with the law. If the impugned decision lies within a range of permissible decisions, a Judicial Review court may not interfere only because it favours a different option within the range..."
122. In Municipal Council of Mombasa v Republic & Another [2002] eKLR the Court of Appeal expressed itself as follows:
"The court would only be concerned with the process leading to the making of the decision. How was the decision arrived at? Did those who made the decision have the power, i.e. the jurisdiction to make it? Were the persons affected by the decision heard before it was made? In making the decision, did the decision maker take into account relevant matters or did he take into account irrelevant matters? These are the kind of questions a court hearing a matter by way of judicial review is concerned with, and such court is not entitled to act as a court of appeal over the decider; acting as an appeal court over the decide,would involve going into the merits of the decision itself._
whether there was sufficient evidence to support the decision —and that, as we have, is not the province of judicial review".
123. In Republic v Public Procurement Administrative Review Board & 2 others Ex parte RongoUniversity [2018] eKLR, the court stated as follows: "Illegality is divided into two categories: those that, if proved, mean that the public authority was not empowered to take action or make the decision it did; and those that relate to whether the authority exercised its discretion properly. Grounds within the first category are simple ultra vires and errors as to precedent facts; while errors of law on the face of the record, making decisions on the basis of insufficient evidence or errors of material facts, taking into account irrelevant considerations or failing to take into account relevant ones, making decisions for improper purposes, fettering of discretion, and failing to fulfill substantive legitimate expectations are grounds within the second category."
In Republic v Public Procurement Administrative Review Board & 3 Others, Ex Parte Olive Telecommunication PVT Limited eKLR, the Court of Appeal stated as follows:
"...In our view, to justify interference the decision in question must be so grossly unreasonable that no authority, addressing itself to the facts and the law would have arrived at such a decision. In other words, such a decision must be deemed to be so outrageous in defiance of logic or acceptable moral standards that no sensible person applying his mind to the question to be decided would have arrived at it."
124. In Kenya Pipeline Company Limited vs. Hyosung Ebara Company Limited & 2 others [2012] eKLR the learned judges observed that:
"In conclusion, it is manifest that the application for Judicial Review was not well founded. The 1st Respondent did not establish that the Review Board had acted without jurisdiction or in excess of jurisdiction or in breach of rules of natural justice or that the decision was irrational. The Judicial Review was not confined to the decision-making process but rather with the correctness of the decision on matters of both law and fact. So long as the proceedings of the Review Board were regular and it had jurisdiction to adjudicate upon the matters raised in the Request for Review, it was as much entitled to decide those matters wrongly as it was to decide them rightly".
125. It is its case that the proceedings before the review board were regular and it had jurisdiction to adjudicate upon the matters raised in the impugned decision.,
126. The 1st and 2nd Respondents acted under the instructions of the Review Board, conducted due diligence and indeed wrote a letter to the applicant explaining that at the time of tender application, they were not qualified and their certificate did not cover the scope of the tender requirements to render it valid.
127. The Applicants allegation that they had a valid Certificate yet it is the same certificate that let to cancellation of the tender by the review board in the first instance is a redundant argument.
Analysis and determination;
129. From the material before court, the issues for determination are;
1. Whether this court has jurisdiction
2. Whether the orders sought can be granted
Issue of jurisdiction;
Section 167 (1) of the public procurement and assets disposal act provides “Subject to the provisions of this Part, a candidate or a tenderer, who claims to have suffered or to risk suffering, loss or damage due to the breach of a duty imposed on a procuring entity by this Act or the Regulations, may seek administrative review within fourteen days of notification of award or date of occurrence of the alleged breach at any stage of the procurement process, or disposal process as in such manner as may be prescribed.”
130. In Geoffrey Muthinja & another v Samuel MugunaHenry & 1756 others [2015] eKLR the Court of Appeal upheld the doctrine of exhaustion as follows as follows:
“It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews….. The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the courts. The Ex Parte Applicants argue that this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution…the exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside of courts. This accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.”
3.16. The principle of exhaustion dictates that where a mechanism has been provided for the resolution of a dispute, that procedure should strictly be followed and exhausted before this Honourable Court’s judicial review jurisdiction is invoked. In the case of Speaker of The National Assembly vs. Karume Civil Application No. Nai. 92 of 1992 which was cited with approval in the case of Republic vs. Ministry of Interior and Coordination of National Government and Another ex parte ZTE Judicial Review Case No. 441 of 2013the Court held thus:
“…one must not lose sight of the fact that the decision whether or not to grant judicial review orders is an exercise of judicial discretion and as was held by Ochieng, J in John Fitzgerald Kennedy Omanga vs. The Postmaster General Postal Corporation of Kenya & 2 Others Nairobi HCMA No. 997 of 2003, for the Court to require the alternative procedure to be exhausted prior to resorting to judicial review is in accord with judicial review being very properly regarded as a remedy of last resort though the applicant will not be required to resort to some other procedure if that other procedure is less convenient or otherwise less appropriate. This position was re-affirmed by the Court of Appeal in Speaker of The National Assembly vs. Karume Civil Application No. Nai. 92 of 1992, where it was held that there is considerable merit in the submission that where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures.” [Emphasis].
131. The applicant confirms that The 1st Respondent issued the Ex-parte Applicant with a notice of intention to award the Subject Tender dated 23rdNovember 2023 to the Interested Party.
132. In the notice of intention to award, the 1st Respondent claimed that the Interested Party was the 2nd Lowest Technically evaluated bidder with a bid of Kshs 242,651,000.00.
133. In the notice of intention to award the Subject Tender dated 23rd November 2023 the 1st Respondent claimed that the Ex-parte Applicant’s bid was unsuccessful because it did not provide a valid registration certificate by the Private Security Regulations Authority (PSRA).
134. The 1st and 2ndRespondents has not issued a Notification of Award, but letters of Intention to Award the tender.
135. The applicant has an option to seek administrative review within fourteen days of notification of award in the event it is aggrieved by the intention to award the tender.
136. The applicant seeks to prematurely seek judicial review orders by ignoring the statutory steps and the redress mechanism chain that is available under Section167 of The PPAD Act.
Section 9 of the Fair Administrative Actions Act (hereafter “the FAA Act") provides for the procedure for judicial review as follows:
“Subject to subjection (2) a person who is aggrieved by an administrative action may, without unreasonable delay, apply for judicial review of any administrative action to the High Court or to a Subordinate Court upon which original jurisdiction is conferred pursuant to Article 22 (3) of the Constitution.
The High Court or a Subordinate Court under sub section (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.
The High Court or a Subordinate Court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under sub-section (1).
Notwithstanding subsection (3), the High Court or a Subordinate Court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the Court considers such exemption to be in the interest of justice.
A person aggrieved by an order made in exercise of the exercise of the judicial review jurisdiction of the High Court may appeal to the Court of Appeal.”
137. The applicant cannot disregard the available Statutory redress mechanisms since this would render Section 9 of the Fair Administrative Action Act otiose.
138. The judicial review remedies have been sought prematurely and in a blatant breach of the doctrine of exhaustion as a result of which this court finds that it lacks jurisdiction to preside over and determine the instant judicial review application and I so hold.
139. In order for the court to exercise its discretion to exempt the exparte Applicant from the obligation to exhaust any remedy under Section 9 (4) of the Fair Administrative Actions Act the Exparte Applicant must demonstrate that there are exceptional circumstances and the court must be moved through an application by the applicant.
140. The Ex parte Applicant did not move the court nor seek for under Section 9 (4) of the Fair Administrative Actions Act orally or otherwise.
64. In the case of Republic v Firearms Licensing Board & another Ex parteBoniface Mwaura [2019] eKLR and held as follows;
“While, exceptions to the exhaustion requirement are not clearly delineated, courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved — including level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies. The High Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it."
141. In the instant suit, the applicant has not demonstrated how they are eligible to the exception to the application of the doctrine of exhaustion and I hold.
142. This court is bound by the Supreme Court Case of Dickson Ngigi Ngugi v Commissioner of Lands S.C Petition No. 9 of 2019 [2019] eKLR, [36] “Jurisdiction goes to the root of any cause or dispute before a court of law. A court must exercise restraint to avoid overstepping its constitutional role in order to maintain its legitimacy. If a court has no jurisdiction, a judgment rendered therein does not adjudicate the dispute. It does not bind the parties, nor can it be made the foundation of any right. It is a nullity without life or authority”.
143. In short, it is coram non judice and amounts to a nullity because, as Nyarangi, JA famously said in the locus classicus, Owners of the Motor Vessel "Lillian S" v Caltex Oil, (Kenya) Ltd [1989] KLR 1, "jurisdiction is everything. Without it, a court has no power to make one more step".
144. The court lacks the jurisdiction to determine the second issue.
Order:
The Notice of motion dated 11th December 2023 is struck out with costs.
Dated, signed and delivered virtually at Nairobi this 5th day of April, 2024
………………………………
J. CHIGITI (SC)
JUDGE