' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW DIVISION
JUDICIAL REVIEW APPLICATION NO. E323 OF 2025
REPUBLIC………………………………………………………….APPLICANT
VERSUS
THE PUBLIC PROCUREMENT ADMINISTRATIVE
REVIEW BOARD……………………………………………1 ST RESPONDENT
SINTECNICA ENGINEERING S.R.L.
IN JOINT VENTURE WITH STEAM S.R.L……………...2 ND RESPONDENT
THE ACCOUNTING OFFICER, KENYA ELECTRICITY
GENERATING COMPANY(KENGEN)…………………..3 RD RESPONDENT
KENYA ELECTRICITY GENERATING
COMPANY PLC (KENGEN)………………………………4 TH RESPONDENT
AND
ELC ELECTROCONSULT S.P.A…………………..EX PARTE APPLICANT
JUDGMENT
This Judgment determines the ex parte applicant’s substantive notice of motion dated 13 th October 2025, which application was filed pursuant to leave of this court granted on 9 th October, 2025. The application is brought under the provisions of Order 53 Rules of the Civil Procedure Rules, Sections 8 and 9 of the Law Reform Act and Section 175 of the Pubic Procurement and Asset Disposal Act,2015.
The application seeks judicial review order of Certiorari to remove into this court for purposes of quashing, the 1 st respondent’s decision dated and delivered on 26 th September 2025 in PPARB Application No.62 of 2025. The Said application is verified by the affidavit of Marco Righini sworn on 7 th October 2025 and a statutory statement dated 7 th October, 2025.
The grounds upon which the application is predicated are that:
The Public Procurement Administrative Review Board (1st Respondent) vide a Decision of 26 th September, 2025 in Application No. 62 of 2025 for Consulting Services for Olkaria VII Geothermal Power Project issued several orders among them that the 3rd Respondent to re-convene the Tender Evaluation Committee in the subject tender and direct it to carry out technical and financial re-evaluation of only responsive tenders including completion of the procurement process and making an award of the Tender within thirty [30] days.
The 1st Respondent in the Decision of 26 th September, 2025 committed a fundamental misdirection and/or a fundamental error and acted in excess and in absence of jurisdiction by purporting to sit on appeal of its own previous decision in Application No. 38 of 2025 dated and delivered on 24 th April, 2025 and for failing to note that it lacked the requisite jurisdiction to entertain the Request for Review by dint of the provisions of section 4 (2) (f) of the Public Procurement and Asset Disposal Act, 2015 since the tender in issue was between the Government of Kenya and multinationals or foreign entities.
Time being cast on stone on matters procurement, it is fair and just that the motion herein be admitted to pave way for hearing of the same.
The ex parte applicant’s case is that it was a bidder in an international tendering process by KenGen being Tender No. KGN-BDD-016-2024 for Procurement of Consultancy Services for Olkaria VII Geothermal Power Project which tendering process was a subject of a previous Request for Review Application No.38 of 2025 between the same parties and that the same was heard and a decision rendered on 24 th April 2025.
That although the ex parte applicant did not participate in Request for Review Application No. 38 of 2025 due to late service of pleadings upon it by the 1 st respondent, in its decision of 24 th April, 2025, the 1 st respondent made several orders among them, that the procuring entity re-convenes the Tender Evaluation Committee and re-evaluate tenders that progressed to the Technical Evaluation stage in line with the evaluation criteria contained in the Tender Document as read with the Act and Regulations, 2020.
According to the ex parte applicant, pursuant to the Review Board’s directions in the Decision of 24 th April,2025 in Request for Review Application No. 38 of 2025, a re-evaluation was done for the subject tender by the Procuring Entity’s Evaluation Committee and thereafter, a written communication dated 7 th May, 2025 was made by the Procuring Entity to the effect that the exparte applicant’s bid was successful for the subject Tender No. KGN-BDD-016-2024 for Procurement of Consultancy Services for Olkaria VII Geothermal Power Project. That the ex parte applicant then legitimately awaited to be invited for relevant negotiations and execution of a contract.
The ex parte applicant states that on 11 th June, 2025, it learnt that the 2 nd respondent being dissatisfied with the Notification of Award dated 7 th May, 2025 once again preferred a second Request for Review dated 20 th May, 2025 in Application No. 62 of 2025 and that the said application having been heard, a decision of the Public Procurement Administrative Review Board was sent to their email addresses on 11 th June, 2025.
It is asserted that upon learning about the decision, the ex parte applicant instructed counsel to challenge the same by way of judicial review since the exparte applicant had been condemned unheard. Counsel is said to have filed Judicial Review No. E170 of 2025 which was thereafter consolidated with Miscellaneous Judicial Review No. E071 of 2025 and the same were heard and determined vide a judgement delivered on 1 st August, 2025. In the said judgement, the honourable court is said to have quashed the 1 st respondent’s decision and ordered a re-hearing of the Request for Review before the 1 st respondent, within seven (7) days.
That the 2 nd respondent being dissatisfied by the High Court’s decision, preferred an appeal to the Court of Appeal vide Civil Appeal No. E630 of 2025, Sintecnica Engineering S.R.L in & joint venture with Steam S.R.L v ELC Electroconsult S.P.A & 3 Others wherein upon hearing, the Court of Appeal rendered its judgement on 5 th September, 2025. The ex parte applicant states that in the said judgement, the Court of Appeal referred the matter back to the 1 st respondent to re-hear the Request for Review de novo hence the Request for Review Application No. 62 of 2025.
It is also the ex parte applicant’s case that after the Court of Appeal’s decision referring the matter back to the 1 st respondent, the 1 st respondent directed the 2 nd respondent to re-serve all the pleadings that had been filed in Application No. 62 of 2025 and the same was done. Subsequently, that the matter was heard by the 1 st respondent with all parties participating and that a decision to that effect was sent to the parties on 26 th September, 2025.
According to the ex parte applicant, among the orders made by the 1 st respondent on 26 th September, 2025 was that the procuring entity re-convene the Tender Evaluation Committee in the subject tender and direct the Tender Evaluation Committee to carry out technical and financial re-evaluation of only responsive tenders including completion of the procurement process and making an award of the Tender within thirty days.
The ex parte applicant’s further claims that the 1 st respondent’s decision of 26 th September, 2025 automatically disqualified the ex parte applicant on the issue of financial statements and that in doing so, the 1 st respondent purported to re-open the issue of financial statements which issue had already been determined in Application No. 38 of 2025 and which decision was neither appealed nor reviewed by any of the parties. It is the ex parte applicant’s contention that in re-opening the issues, the 1 st respondent sat on appeal of its own prior decision which is an exercise in excess of jurisdiction.
The ex parte applicant also alleges that the 1 st respondent also assumed jurisdiction which it did not possess since the subject tender was one between the Government of Kenya and Multilateral agencies among them European Investment Bank (EIB) bringing into focus the provisions of section 4 (2) (f) of the Public Procurement and Asset Disposal Act, 2015.
The exparte Applicant also filed a further affidavit sworn by Marco Righini, in response to the replying affidavit.
In the affidavit, it is deposed in reiteration that the issue of financial statements was conclusively dealt with by the 1 st respondent in its decision in Application No. 38 of 2025 dated and delivered on 24 th April 2025.
That financial statements were only considered once, during the pre-qualification stage and that there was no issue of financial statements at the technical stage. It is further deposed that the 1 st respondent’s decision in Application No.62 of 2025 dated 26 th September 2025 was in excess of jurisdiction since its act of revisiting the issue of financial statements was res judicata as it had been fully litigated and a decision made in Application No.38 of 2025. According to the Applicant, this decision was neither appealed nor reviewed by any body and that decision remained binding on all parties.
It is urged that the term de novo only applied to the previous decision in Application N.62 of 2025 dated and delivered on 11 th June 2025, and did not extend to re-opening its previous decision in Application No.38 of 2025.
The Applicant states that at paragraph 5 of the Court of Appeal decision in Civil Appeal No. E630 of 2025 dated 5 th September 2025 at paragraph 29, the court observed that there was nothing on record to show that the decision of the Review Board in Application No.38 had been appealed as the appeal before it had arisen out of Application No.62 of 2025.
According to the exparte Applicant, a judicial or quasi-judicial body is not necessarily bound by its previous decision and that the same does not extend to re-opening a matter that has been fully conclusively litigated and no appeal preferred against that decision. It is also stated that paragraphs 223 to 225 of the 1 st Respondent’s decision amounted to judicial craft and innovation to introduce extraneous issues which had been settled and no appeal or review preferred against those findings.
The exparte applicant maintained that irregularities and misapprehension of evidence are grounds for review or appeal of the said decision and not re-litigating the same issues in a new cause or suit and thus the 1 st respondent’s findings in Application No. 62 of 2025 dated and delivered on 26 th September 2025 that its findings in its earlier decision in Application No. 38 of 2025 dated and delivered 24 th April, 2025 were per incuriam was in excess of jurisdiction.
The exparte Applicant also states that Cabinet News dated 29 th July 2025 contained in its annexures confirms that the subject tender was one between the Government of Kenya, European Investment Bank (EIB) and Government of Japan through the Japan International Cooperation Agency (JICA).
The 1 st Respondent’s response
The 1 st respondent filed a replying affidavit sworn on 21 st October 2025 by Philemon Kiprop who introduces himself as the Secretary of the 1 st respondent. It was deposed that the ex parte applicant’s notice of motion challenging the 1 st respondent’s decision dated 26 th September 2025 rendered in PPARB Application No. 62 of 2025 is an appeal against the 1 st respondent’s decision and is being disguised as a judicial review application.
That on 3 rd April 2025, Sintecnica Engineering S.R.L in Joint Venture with Steam S.R.L, the 2 nd Respondent herein, filed a Request for Review Application No. 38 of 2025 dated 3 rd April 2025 before the 1 st respondent and a judgment delivered by the 1 st respondent on 24 th April 2025 where the Review Board allowed the applicant’s Request for Review dated 3 rd April 2025, nullified and set aside the letters of notification of intent to award Tender No. KGN-BDD-016-2024 issued on 21 st March 2025 and directed the 3 rd respondent to reconvene the Tender Evaluation Committee to re-evaluate tenders that reached the technical evaluation stage in accordance with the tender documents, the Act, and the 2020 Regulations.
It is further stated in deposition that the Review Board further ordered the 3 rd respondent to conclude the procurement process, including making an award, within 21 days of its decision, and directed that each party bear its own costs.
That once again, the 2 nd respondent herein filed on 21 st May 2025 a Request for Review Application No. 62 of 2025 dated 20 th May 2025 before the 1 st respondent seeking for declarations that the Accounting Officer and Procuring Entity breached Articles 10, 27, 201, 227, and 232 of the Constitution, various provisions of the Public Procurement and Asset Disposal Act and Regulations, and sections of the Engineers Act and Regulations.
That the 2 nd respondent also sought a declaration that the Accounting Officer and Procuring Entity failed to comply with the Board’s earlier decision in PPARB Application No. 38 of 2025 – Sintecnica Engineering S.R.L in JV with Steam S.r.l v KenGen & 2 Others. It was further prayed that the Board do declare the ex parte applicant’s bid non-compliant with the technical and financial evaluation criteria, annul the subsequent award to ex parte applicant, and direct that Tender No. KGN-BDD-016-2024 be awarded to the 2 nd respondent as the lowest responsive evaluated bidder. That in the alternative, the 2 nd respondent herein sought an award of EUR 16,792,425.00 as damages for loss of business. The application also sought costs of the proceedings and any other appropriate relief.
The 1 st respondent deposes that in its decision of 11 th June 2025, it allowed the 2 nd respondent’s Request for Review dated 20 th May 2025, nullified and set aside the letters of notification of intent to award Tender No. KGN-BDD-016-2024 issued on 7 th May 2025 in favour of the exparte applicant herein and directed the Procuring Entity, the 3 rd respondent herein to reconvene the Tender Evaluation Committee to re-evaluate tenders that reached the technical evaluation stage in accordance with the tender documents, the Public Procurement and Asset Disposal Act and the 2020 Regulations. That the Review Board further ordered the 3 rd respondent herein to conclude the procurement process, including making an award, within 21 days of its decision, and directed that each party bear its own costs.
According to the 1 st respondent, the parties dissatisfied with its Decision, sought judicial review from the High Court in Nairobi High Court vide Judicial Review Application No. E170 of 2025 as consolidated with Judicial Review Misc. No. E071 of 2025 and the court in its judgment of 1 st August 2025 quashed the decision of 11 th June 2025 and directed that Application No.62 of 2025 be reheard within 7 days.
That the 2 nd respondent dissatisfied with the court’s judgment filed Nairobi Civil Appeal No. E630 of 2025 and on 5 th September 2025 the Court of Appeal affirmed the judgment of the High Court in HCJR No. E170 of 2025 (consolidated with JR Misc. App. E071 of 2025) to the extent that it found a violation of the exparte applicant’s right to fair administrative action, and upheld orders 1 and 2 of that judgment. However, that the Court set aside the finding at paragraph 180 of the impugned judgment, remitted PPARB Application No. 62 of 2025 to the Review Board for rehearing before a panel excluding Ms. A. Oeri, Ms. J. M’mbetsa, and Mr. J. Kiptoo. That the Court of Appeal also directed that the matter be determined within 21 days, and ordered each party to bear its own costs of the appeal.
That pursuant to the orders of the Court of Appeal directing the 1 st respondent to rehear Request for Review No. 62 of 2025, the 1 st respondent issued directions to parties on the rehearing and subsequently, the Request for Review No. 62 of 2025 proceeded to a rehearing de novo on 23 rd September 2025 as ordered by the Court of Appeal with parties making their respective submissions before the 1 st respondent’s newly constituted panel.
That after hearing the parties de novo , the 1 st respondent is said to have nullified and set aside the letters of notification of intent to award Tender No. KGN-BDD-016-2024 issued on 7 th May 2025 and directed the 3 rd respondent herein to reconvene the Tender Evaluation Committee to conduct a technical and financial re-evaluation of only responsive tenders in accordance with the tender documents, the PPAD Act and the 2020 Regulations, while taking into account the findings of the Review Board. That the Review Board further ordered the 3 rd Respondent to complete the procurement process, including making an award, within 30 days and to also extend the tender validity period by 30 days pursuant to Section 88 of the Act.
That the 1 st respondent in reaching its Decision considered each of the parties’ cases, documents, pleadings, oral and written submissions, list and bundle of authorities together with confidential documents submitted to it pursuant to Section 67(3)(e) of the Act.
It is deposed that from the onset, the 1 st respondent was crystal clear that the proceedings in the Request for Review were to commence afresh from beginning as if there had been no trial in the first instance and that this is evident at paragraphs 93 to 119 of its Decision where it considered the first issue on whether the preliminary objections filed by the ex parte applicant and the 3 rd and 4 th respondents were properly on record for its consideration.
According to the 1 st respondent, on the question of whether the Request for Review No. 62 of 2025 was time barred, it found that the 2 nd respondent, being aggrieved by the 3 rd respondent’s decision of 7 th May 2025 awarding the tender to the ex parte applicant, was required to challenge that decision within the 14-day period prescribed under Section 167(1) of the Public Procurement and Asset Disposal Act and Regulation 203(2)(c)(ii) of the PPAD, 2020 Regulations and that in applying Section 57 of the Interpretation and General Provisions Act, it determined that time began running on 8 th May 2025 and lapsed on 21 st May 2025, the date when the Request for Review was filed, and therefore held that the review was filed within the statutory timeframe.
The 1 st respondent also states that it considered the objection by the ex parte applicant and the 3 rd and 4 th respondents that Request for Review No. 62 of 2025 was not amenable to its jurisdiction, arguing that the procurement was under a bilateral/multilateral arrangement and therefore excluded from the application of the Act under Section 4(2)(f) of the Public Procurement and Asset Disposal Act.
That after examining the tender advertisement and documents, the 1 st respondent found that the Procuring Entity was receiving financing from the European Investment Bank (EIB) for consultancy services for the Olkaria VII Geothermal Power Project. Also, that the procurement was to be conducted in accordance with the EIB’s Guide to Procurement for Projects Financed by the EIB, and that both the Procuring Entity and the Financier had agreed to use the EIB procurement guidelines, adapting the KfW Standard Procurement Document to suit the project.
That the 1 st respondent keenly examined various clauses of the EIB Guidelines such as Clause 1.3, 1.8 and Annex 7 which were to the effect that a tenderer wishing to challenge a procuring entity’s actions can only address its concerns with the procuring entity and/or review bodies under the available national remedy mechanisms.
On the issue of res judicata it is deposed that after reviewing the law on res judicata , the 1 st respondent found that Request for Review No. 62 of 2025 arose from the tender proceedings following the orders issued in Request for Review No. 38 of 2025, where it had been directed that the Evaluation Committee does re-evaluate tenders that progressed to the Technical Evaluation stage in line with the evaluation criteria contained in the Tender Document as read with the Act and Regulations 2020 of the PPAD Regulations and for the procurement process to proceed to its logical conclusion.
The 1 st respondent noted that the 2 nd respondent’s counsel argued that the ex parte applicant’s financial statements were improperly filed, having been signed by the chief executive officer rather than a qualified auditor and that this issue affected both prequalification and the Technical Evaluation stage.
The 2 nd respondent is said to have maintained that this could justify automatic disqualification. However, that the 1 st respondent also recorded that the ex parte applicant and the 3 rd and 4 th respondents opposed this argument, contending that the matter of the financial statements had already been conclusively addressed in Request for Review No. 38 of 2025 and should be considered binding.
The 1 st respondent, it is deposed, found that the issues raised in Request for Review No. 62 of 2025 were distinct from those addressed in Request for Review No. 38 of 2025 and as such, the matter before the 1 st respondent raised a distinct cause of action and that the re-assessment of the procurement process in the subject tender is considered a separate and independent action.
Further, that it reiterated at paragraph 185 of its Decision that the Request for Review No. 62 of 2025 was proceeding de novo which meant that the matter was being tried a new as if it had not been heard before and that the new panel would not concern itself with remarks or clarifications that may have been previously made or sought when Request for Review No. 62 of 2025 was first heard.
It is deposed further that the 1 st respondent proceeded to point out that a tribunal of coordinate jurisdiction may distinguish a prior decision in circumstances inter-alia where the said prior decision was made per-incuriam or it satisfies itself that the decision misapprehended the evidence before it noting that it is a general rule that a court or tribunal is not bound to follow its previous decision where such decision is given per incuriam (through inattention to vital, applicable instruments or authority).
Further, that the 1 st respondent relied on the Supreme Court’s case of Jasbir Singh Rai and Three Others v. The Estate of Tarlochan Singh Rai and Four Others, Sup. Ct. Petition No. 4 of 2012 while further pointing out that a decision per incuriam is mistaken, as it is not founded on the valid and governing pillars of law, the relevant decision having not taken into account some specific applicable instrument, rule or authority.
The 1 st respondent further states in deposition that at paragraphs 189 to 225 of its Decision held that the evaluation in the subject tender was not carried out in accordance with the procedures and criteria for evaluation set out in the Tender Document and Section 80(2) of the Act as read with Article 227(1) of the Constitution.
The 1 st respondent is further stated to have arrived at its finding after considering the parties’ submissions on re-evaluation of the tender and the previous orders in Request for Review No. 38 of 2025, which are said to have specified the evaluation criteria to be applied under ITC Clause 21.1 of Section II – Data Sheet at pages 29 to 31 of Part II – Request for Proposals of the Tender Document as amended by Addendum No. 2 of 24 th October 2024.
Further, that the 1 st respondent noted a conflict between the evaluation criteria and sub-criterion stipulated under Clause 21.2 of Section I – Instructions to Consultants at pages 17 to 18 of Part II – Request for Proposals of the Tender Document and how the same was to be scored and the evaluation criterion and sub-criterion stipulated under ITC Clause 21.1 of Section II – Data Sheet of Part II – Request for Proposals of the Tender Document as amended by Addendum No. 2 dated 24 th October 2024 and how the same was to be scored. That as such, the 1 st respondent held that the provisions under the Data Sheet prevail over provisions under the Instructions to Consultants.
The 1 st respondent therefore maintains that it rightfully understood the evaluation criteria to mean, inter alia, that the Technical proposals would be evaluated and scored using the stipulated point system as set out in the Data Sheet whereby scores are indicated as points with an overall score totaling to 100 points, and also, that there is no provision for pro-rating of the scores set out under the data sheet and as such, a bidder would either score the full allocated marks under the Data Sheet or 0.
It is stated further that the Review Board reviewed the Re-Evaluation Report and the Evaluation Committee’s scoring of the ex parte applicant and the 2 nd respondent’s technical proposals, noting that the applicant had scored 77.95 points, while the 2 nd respondent had scored 92.06 points at the Technical Evaluation stage. Further, that Project Experience points were assigned based on the number of projects, with one qualifying project equaling one point up to the sub-criterion maximum.
The 1 st respondent is also said to have noted that for key staff competence, scores were prorated based on CV information, using the categorization under Clause 21.2 of Section I – Instructions to Consultants (General Qualifications, General Professional Experience, Specific Relevant Professional Experience) applied to the Data Sheet scores.
The Review Board further states that the Evaluation Committee used disaggregated sub-criteria that were not prescribed in the Tender Document or introduced via Addendum, and that no justification was provided for how marks were awarded for each component. An example given by the 1 st respondent is that of a Project Manager with a Data Sheet score of 5 which was divided across the categories (General Qualifications 15%, General Professional Experience 25%, Specific Relevant Experience 60%) and further broken down into sub-scores (e.g., University Degree 0.2, Registered Professional 0.25, Specialized Training 0.3). This according to the 1 st respondent, illustrated a complex and unsupported prorated scoring method.
The 1 st respondent also states that based on its observations, it established that the Evaluation Committee improperly introduced extrinsic and undisclosed sub-criteria and adopted a comparative methodology not contemplated in the Tender Document or the Addendum contrary to Section 80(2) of the Act and the explicit terms of the Tender Document. That at paragraph 217 of its Decision, it held that the re-evaluation of the 2 nd respondent’s and the ex parte applicant’s technical proposal was non-compliant with the provisions of the Tender Document and the applicable sections of the Act.
That the 1 st respondent reviewed the ex parte applicant’s tender documents and noted that its financial statements for 2020–2022 were unsigned and uncertified, in contrast to the 2 nd respondent’s financials, which were audited and accompanied by independent audit reports. This non-compliance with the certification requirements under the tender documents and Section 80 of the Act, it is stated, rendered any evaluation of the ex parte applicant unlawful.
It is further stated by the 1 st respondent that it found that strict application of the tender terms made the ex parte applicant ineligible to proceed beyond the prequalification stage and that any evaluation or re-evaluation conducted was voided by operation of the law. The 1 st respondent states that the Review Board’s prior decision in Request for Review No. 38 of 2025 was considered per incuriam and not binding.
The 1 st respondent states that its decision in Request for Review No. 62 of 2025 dated 26 th September 2025 was lawful, procedurally fair, rational and consistent with the Constitution, the Act, the Regulations 2020 and the Fair Administrative Action Act. The 1 st respondent denies the allegation by the exparte applicant that the impugned decision exceeded the Review Board’s mandate and that the said decision upheld procurement integrity and properly considered all evidence and legal requirements.
The 2 nd Respondent’s response
The 2 nd respondent filed a replying affidavit sworn on 16 th October 2025 by Matteo Quaia who introduces himself as the Director and Chief Executive Officer of Steam S.R.L, a party to the Joint Venture between Sintecnica Engineering and Steam S.R.L.
In the affidavit the 2 nd respondent contends that the issues around the financial statements that the 2 nd Respondent brought up in PPARB Application Number 62 of 2025 during the re-hearing revolved around the technical stage and not the Pre-qualification stage where the issue was extensively dealt with in PPARB Application Number 38 of 2025.
Further, that in any case, the 1 st respondent, in its Decision in PPARB Application Number 38 of 2025, recommended that the Procuring Entity conducts due diligence which was to include probing into the financial statements of the tenderers as they are crucial in determining a successful tenderer.
It is also the 2 nd respondent’s case that the financial statements submitted by the Ex-Parte Applicant including its Balance Sheets are not Balance Sheets but Draft Balance Sheets made by the Interested Party itself. The 2 nd respondent also contends that this was also one of the observations that were made by the 1 st Respondent, differently constituted, during the re-hearing and determination of the Application Number 62 of 2025 as it observed in its decision dated 26 th September, 2025 that the financial statements submitted by the ex parte applicant did not meet the conditions set out in the tender document.
According to the 2 nd respondent, this is because under the Italian Law, a Draft Balance Sheet only becomes an approved and formal Balance Sheet, once it is approved by the Board and deposited to the Chamber of Commerce, thereby rendering them as actual financial statements that could then be certified by an auditor.
That contrary to the averments by the ex parte applicants that the issue of financial statements was conclusively dealt with by the 1 st Respondent in its decision in Application No. 38 of 2025 directed the 3 rd and 4 th Respondents to conduct effective due diligence and
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IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW DIVISION
JUDICIAL REVIEW APPLICATION NO. E323 OF 2025
REPUBLIC………………………………………………………….APPLICANT
VERSUS
THE PUBLIC PROCUREMENT ADMINISTRATIVE
REVIEW BOARD……………………………………………1 ST RESPONDENT
SINTECNICA ENGINEERING S.R.L.
IN JOINT VENTURE WITH STEAM S.R.L……………...2 ND RESPONDENT
THE ACCOUNTING OFFICER, KENYA ELECTRICITY
GENERATING COMPANY(KENGEN)…………………..3 RD RESPONDENT
KENYA ELECTRICITY GENERATING
COMPANY PLC (KENGEN)………………………………4 TH RESPONDENT
AND
ELC ELECTROCONSULT S.P.A…………………..EX PARTE APPLICANT
JUDGMENT
This Judgment determines the ex parte applicant’s substantive notice of motion dated 13 th October 2025, which application was filed pursuant to leave of this court granted on 9 th October, 2025. The application is brought under the provisions of Order 53 Rules of the Civil Procedure Rules, Sections 8 and 9 of the Law Reform Act and Section 175 of the Pubic Procurement and Asset Disposal Act,2015.
The application seeks judicial review order of Certiorari to remove into this court for purposes of quashing, the 1 st respondent’s decision dated and delivered on 26 th September 2025 in PPARB Application No.62 of 2025. The Said application is verified by the affidavit of Marco Righini sworn on 7 th October 2025 and a statutory statement dated 7 th October, 2025.
The grounds upon which the application is predicated are that:
The Public Procurement Administrative Review Board (1st Respondent) vide a Decision of 26 th September, 2025 in Application No. 62 of 2025 for Consulting Services for Olkaria VII Geothermal Power Project issued several orders among them that the 3rd Respondent to re-convene the Tender Evaluation Committee in the subject tender and direct it to carry out technical and financial re-evaluation of only responsive tenders including completion of the procurement process and making an award of the Tender within thirty [30] days.
The 1st Respondent in the Decision of 26 th September, 2025 committed a fundamental misdirection and/or a fundamental error and acted in excess and in absence of jurisdiction by purporting to sit on appeal of its own previous decision in Application No. 38 of 2025 dated and delivered on 24 th April, 2025 and for failing to note that it lacked the requisite jurisdiction to entertain the Request for Review by dint of the provisions of section 4 (2) (f) of the Public Procurement and Asset Disposal Act, 2015 since the tender in issue was between the Government of Kenya and multinationals or foreign entities.
Time being cast on stone on matters procurement, it is fair and just that the motion herein be admitted to pave way for hearing of the same.
The ex parte applicant’s case is that it was a bidder in an international tendering process by KenGen being Tender No. KGN-BDD-016-2024 for Procurement of Consultancy Services for Olkaria VII Geothermal Power Project which tendering process was a subject of a previous Request for Review Application No.38 of 2025 between the same parties and that the same was heard and a decision rendered on 24 th April 2025.
That although the ex parte applicant did not participate in Request for Review Application No. 38 of 2025 due to late service of pleadings upon it by the 1 st respondent, in its decision of 24 th April, 2025, the 1 st respondent made several orders among them, that the procuring entity re-convenes the Tender Evaluation Committee and re-evaluate tenders that progressed to the Technical Evaluation stage in line with the evaluation criteria contained in the Tender Document as read with the Act and Regulations, 2020.
According to the ex parte applicant, pursuant to the Review Board’s directions in the Decision of 24 th April,2025 in Request for Review Application No. 38 of 2025, a re-evaluation was done for the subject tender by the Procuring Entity’s Evaluation Committee and thereafter, a written communication dated 7 th May, 2025 was made by the Procuring Entity to the effect that the exparte applicant’s bid was successful for the subject Tender No. KGN-BDD-016-2024 for Procurement of Consultancy Services for Olkaria VII Geothermal Power Project. That the ex parte applicant then legitimately awaited to be invited for relevant negotiations and execution of a contract.
The ex parte applicant states that on 11 th June, 2025, it learnt that the 2 nd respondent being dissatisfied with the Notification of Award dated 7 th May, 2025 once again preferred a second Request for Review dated 20 th May, 2025 in Application No. 62 of 2025 and that the said application having been heard, a decision of the Public Procurement Administrative Review Board was sent to their email addresses on 11 th June, 2025.
It is asserted that upon learning about the decision, the ex parte applicant instructed counsel to challenge the same by way of judicial review since the exparte applicant had been condemned unheard. Counsel is said to have filed Judicial Review No. E170 of 2025 which was thereafter consolidated with Miscellaneous Judicial Review No. E071 of 2025 and the same were heard and determined vide a judgement delivered on 1 st August, 2025. In the said judgement, the honourable court is said to have quashed the 1 st respondent’s decision and ordered a re-hearing of the Request for Review before the 1 st respondent, within seven (7) days.
That the 2 nd respondent being dissatisfied by the High Court’s decision, preferred an appeal to the Court of Appeal vide Civil Appeal No. E630 of 2025, Sintecnica Engineering S.R.L in & joint venture with Steam S.R.L v ELC Electroconsult S.P.A & 3 Others wherein upon hearing, the Court of Appeal rendered its judgement on 5 th September, 2025. The ex parte applicant states that in the said judgement, the Court of Appeal referred the matter back to the 1 st respondent to re-hear the Request for Review de novo hence the Request for Review Application No. 62 of 2025.
It is also the ex parte applicant’s case that after the Court of Appeal’s decision referring the matter back to the 1 st respondent, the 1 st respondent directed the 2 nd respondent to re-serve all the pleadings that had been filed in Application No. 62 of 2025 and the same was done. Subsequently, that the matter was heard by the 1 st respondent with all parties participating and that a decision to that effect was sent to the parties on 26 th September, 2025.
According to the ex parte applicant, among the orders made by the 1 st respondent on 26 th September, 2025 was that the procuring entity re-convene the Tender Evaluation Committee in the subject tender and direct the Tender Evaluation Committee to carry out technical and financial re-evaluation of only responsive tenders including completion of the procurement process and making an award of the Tender within thirty days.
The ex parte applicant’s further claims that the 1 st respondent’s decision of 26 th September, 2025 automatically disqualified the ex parte applicant on the issue of financial statements and that in doing so, the 1 st respondent purported to re-open the issue of financial statements which issue had already been determined in Application No. 38 of 2025 and which decision was neither appealed nor reviewed by any of the parties. It is the ex parte applicant’s contention that in re-opening the issues, the 1 st respondent sat on appeal of its own prior decision which is an exercise in excess of jurisdiction.
The ex parte applicant also alleges that the 1 st respondent also assumed jurisdiction which it did not possess since the subject tender was one between the Government of Kenya and Multilateral agencies among them European Investment Bank (EIB) bringing into focus the provisions of section 4 (2) (f) of the Public Procurement and Asset Disposal Act, 2015.
The exparte Applicant also filed a further affidavit sworn by Marco Righini, in response to the replying affidavit.
In the affidavit, it is deposed in reiteration that the issue of financial statements was conclusively dealt with by the 1 st respondent in its decision in Application No. 38 of 2025 dated and delivered on 24 th April 2025.
That financial statements were only considered once, during the pre-qualification stage and that there was no issue of financial statements at the technical stage. It is further deposed that the 1 st respondent’s decision in Application No.62 of 2025 dated 26 th September 2025 was in excess of jurisdiction since its act of revisiting the issue of financial statements was res judicata as it had been fully litigated and a decision made in Application No.38 of 2025. According to the Applicant, this decision was neither appealed nor reviewed by any body and that decision remained binding on all parties.
It is urged that the term de novo only applied to the previous decision in Application N.62 of 2025 dated and delivered on 11 th June 2025, and did not extend to re-opening its previous decision in Application No.38 of 2025.
The Applicant states that at paragraph 5 of the Court of Appeal decision in Civil Appeal No. E630 of 2025 dated 5 th September 2025 at paragraph 29, the court observed that there was nothing on record to show that the decision of the Review Board in Application No.38 had been appealed as the appeal before it had arisen out of Application No.62 of 2025.
According to the exparte Applicant, a judicial or quasi-judicial body is not necessarily bound by its previous decision and that the same does not extend to re-opening a matter that has been fully conclusively litigated and no appeal preferred against that decision. It is also stated that paragraphs 223 to 225 of the 1 st Respondent’s decision amounted to judicial craft and innovation to introduce extraneous issues which had been settled and no appeal or review preferred against those findings.
The exparte applicant maintained that irregularities and misapprehension of evidence are grounds for review or appeal of the said decision and not re-litigating the same issues in a new cause or suit and thus the 1 st respondent’s findings in Application No. 62 of 2025 dated and delivered on 26 th September 2025 that its findings in its earlier decision in Application No. 38 of 2025 dated and delivered 24 th April, 2025 were per incuriam was in excess of jurisdiction.
The exparte Applicant also states that Cabinet News dated 29 th July 2025 contained in its annexures confirms that the subject tender was one between the Government of Kenya, European Investment Bank (EIB) and Government of Japan through the Japan International Cooperation Agency (JICA).
The 1 st Respondent’s response
The 1 st respondent filed a replying affidavit sworn on 21 st October 2025 by Philemon Kiprop who introduces himself as the Secretary of the 1 st respondent. It was deposed that the ex parte applicant’s notice of motion challenging the 1 st respondent’s decision dated 26 th September 2025 rendered in PPARB Application No. 62 of 2025 is an appeal against the 1 st respondent’s decision and is being disguised as a judicial review application.
That on 3 rd April 2025, Sintecnica Engineering S.R.L in Joint Venture with Steam S.R.L, the 2 nd Respondent herein, filed a Request for Review Application No. 38 of 2025 dated 3 rd April 2025 before the 1 st respondent and a judgment delivered by the 1 st respondent on 24 th April 2025 where the Review Board allowed the applicant’s Request for Review dated 3 rd April 2025, nullified and set aside the letters of notification of intent to award Tender No. KGN-BDD-016-2024 issued on 21 st March 2025 and directed the 3 rd respondent to reconvene the Tender Evaluation Committee to re-evaluate tenders that reached the technical evaluation stage in accordance with the tender documents, the Act, and the 2020 Regulations.
It is further stated in deposition that the Review Board further ordered the 3 rd respondent to conclude the procurement process, including making an award, within 21 days of its decision, and directed that each party bear its own costs.
That once again, the 2 nd respondent herein filed on 21 st May 2025 a Request for Review Application No. 62 of 2025 dated 20 th May 2025 before the 1 st respondent seeking for declarations that the Accounting Officer and Procuring Entity breached Articles 10, 27, 201, 227, and 232 of the Constitution, various provisions of the Public Procurement and Asset Disposal Act and Regulations, and sections of the Engineers Act and Regulations.
That the 2 nd respondent also sought a declaration that the Accounting Officer and Procuring Entity failed to comply with the Board’s earlier decision in PPARB Application No. 38 of 2025 – Sintecnica Engineering S.R.L in JV with Steam S.r.l v KenGen & 2 Others. It was further prayed that the Board do declare the ex parte applicant’s bid non-compliant with the technical and financial evaluation criteria, annul the subsequent award to ex parte applicant, and direct that Tender No. KGN-BDD-016-2024 be awarded to the 2 nd respondent as the lowest responsive evaluated bidder. That in the alternative, the 2 nd respondent herein sought an award of EUR 16,792,425.00 as damages for loss of business. The application also sought costs of the proceedings and any other appropriate relief.
The 1 st respondent deposes that in its decision of 11 th June 2025, it allowed the 2 nd respondent’s Request for Review dated 20 th May 2025, nullified and set aside the letters of notification of intent to award Tender No. KGN-BDD-016-2024 issued on 7 th May 2025 in favour of the exparte applicant herein and directed the Procuring Entity, the 3 rd respondent herein to reconvene the Tender Evaluation Committee to re-evaluate tenders that reached the technical evaluation stage in accordance with the tender documents, the Public Procurement and Asset Disposal Act and the 2020 Regulations. That the Review Board further ordered the 3 rd respondent herein to conclude the procurement process, including making an award, within 21 days of its decision, and directed that each party bear its own costs.
According to the 1 st respondent, the parties dissatisfied with its Decision, sought judicial review from the High Court in Nairobi High Court vide Judicial Review Application No. E170 of 2025 as consolidated with Judicial Review Misc. No. E071 of 2025 and the court in its judgment of 1 st August 2025 quashed the decision of 11 th June 2025 and directed that Application No.62 of 2025 be reheard within 7 days.
That the 2 nd respondent dissatisfied with the court’s judgment filed Nairobi Civil Appeal No. E630 of 2025 and on 5 th September 2025 the Court of Appeal affirmed the judgment of the High Court in HCJR No. E170 of 2025 (consolidated with JR Misc. App. E071 of 2025) to the extent that it found a violation of the exparte applicant’s right to fair administrative action, and upheld orders 1 and 2 of that judgment. However, that the Court set aside the finding at paragraph 180 of the impugned judgment, remitted PPARB Application No. 62 of 2025 to the Review Board for rehearing before a panel excluding Ms. A. Oeri, Ms. J. M’mbetsa, and Mr. J. Kiptoo. That the Court of Appeal also directed that the matter be determined within 21 days, and ordered each party to bear its own costs of the appeal.
That pursuant to the orders of the Court of Appeal directing the 1 st respondent to rehear Request for Review No. 62 of 2025, the 1 st respondent issued directions to parties on the rehearing and subsequently, the Request for Review No. 62 of 2025 proceeded to a rehearing de novo on 23 rd September 2025 as ordered by the Court of Appeal with parties making their respective submissions before the 1 st respondent’s newly constituted panel.
That after hearing the parties de novo , the 1 st respondent is said to have nullified and set aside the letters of notification of intent to award Tender No. KGN-BDD-016-2024 issued on 7 th May 2025 and directed the 3 rd respondent herein to reconvene the Tender Evaluation Committee to conduct a technical and financial re-evaluation of only responsive tenders in accordance with the tender documents, the PPAD Act and the 2020 Regulations, while taking into account the findings of the Review Board. That the Review Board further ordered the 3 rd Respondent to complete the procurement process, including making an award, within 30 days and to also extend the tender validity period by 30 days pursuant to Section 88 of the Act.
That the 1 st respondent in reaching its Decision considered each of the parties’ cases, documents, pleadings, oral and written submissions, list and bundle of authorities together with confidential documents submitted to it pursuant to Section 67(3)(e) of the Act.
It is deposed that from the onset, the 1 st respondent was crystal clear that the proceedings in the Request for Review were to commence afresh from beginning as if there had been no trial in the first instance and that this is evident at paragraphs 93 to 119 of its Decision where it considered the first issue on whether the preliminary objections filed by the ex parte applicant and the 3 rd and 4 th respondents were properly on record for its consideration.
According to the 1 st respondent, on the question of whether the Request for Review No. 62 of 2025 was time barred, it found that the 2 nd respondent, being aggrieved by the 3 rd respondent’s decision of 7 th May 2025 awarding the tender to the ex parte applicant, was required to challenge that decision within the 14-day period prescribed under Section 167(1) of the Public Procurement and Asset Disposal Act and Regulation 203(2)(c)(ii) of the PPAD, 2020 Regulations and that in applying Section 57 of the Interpretation and General Provisions Act, it determined that time began running on 8 th May 2025 and lapsed on 21 st May 2025, the date when the Request for Review was filed, and therefore held that the review was filed within the statutory timeframe.
The 1 st respondent also states that it considered the objection by the ex parte applicant and the 3 rd and 4 th respondents that Request for Review No. 62 of 2025 was not amenable to its jurisdiction, arguing that the procurement was under a bilateral/multilateral arrangement and therefore excluded from the application of the Act under Section 4(2)(f) of the Public Procurement and Asset Disposal Act.
That after examining the tender advertisement and documents, the 1 st respondent found that the Procuring Entity was receiving financing from the European Investment Bank (EIB) for consultancy services for the Olkaria VII Geothermal Power Project. Also, that the procurement was to be conducted in accordance with the EIB’s Guide to Procurement for Projects Financed by the EIB, and that both the Procuring Entity and the Financier had agreed to use the EIB procurement guidelines, adapting the KfW Standard Procurement Document to suit the project.
That the 1 st respondent keenly examined various clauses of the EIB Guidelines such as Clause 1.3, 1.8 and Annex 7 which were to the effect that a tenderer wishing to challenge a procuring entity’s actions can only address its concerns with the procuring entity and/or review bodies under the available national remedy mechanisms.
On the issue of res judicata it is deposed that after reviewing the law on res judicata , the 1 st respondent found that Request for Review No. 62 of 2025 arose from the tender proceedings following the orders issued in Request for Review No. 38 of 2025, where it had been directed that the Evaluation Committee does re-evaluate tenders that progressed to the Technical Evaluation stage in line with the evaluation criteria contained in the Tender Document as read with the Act and Regulations 2020 of the PPAD Regulations and for the procurement process to proceed to its logical conclusion.
The 1 st respondent noted that the 2 nd respondent’s counsel argued that the ex parte applicant’s financial statements were improperly filed, having been signed by the chief executive officer rather than a qualified auditor and that this issue affected both prequalification and the Technical Evaluation stage.
The 2 nd respondent is said to have maintained that this could justify automatic disqualification. However, that the 1 st respondent also recorded that the ex parte applicant and the 3 rd and 4 th respondents opposed this argument, contending that the matter of the financial statements had already been conclusively addressed in Request for Review No. 38 of 2025 and should be considered binding.
The 1 st respondent, it is deposed, found that the issues raised in Request for Review No. 62 of 2025 were distinct from those addressed in Request for Review No. 38 of 2025 and as such, the matter before the 1 st respondent raised a distinct cause of action and that the re-assessment of the procurement process in the subject tender is considered a separate and independent action.
Further, that it reiterated at paragraph 185 of its Decision that the Request for Review No. 62 of 2025 was proceeding de novo which meant that the matter was being tried a new as if it had not been heard before and that the new panel would not concern itself with remarks or clarifications that may have been previously made or sought when Request for Review No. 62 of 2025 was first heard.
It is deposed further that the 1 st respondent proceeded to point out that a tribunal of coordinate jurisdiction may distinguish a prior decision in circumstances inter-alia where the said prior decision was made per-incuriam or it satisfies itself that the decision misapprehended the evidence before it noting that it is a general rule that a court or tribunal is not bound to follow its previous decision where such decision is given per incuriam (through inattention to vital, applicable instruments or authority).
Further, that the 1 st respondent relied on the Supreme Court’s case of Jasbir Singh Rai and Three Others v. The Estate of Tarlochan Singh Rai and Four Others, Sup. Ct. Petition No. 4 of 2012 while further pointing out that a decision per incuriam is mistaken, as it is not founded on the valid and governing pillars of law, the relevant decision having not taken into account some specific applicable instrument, rule or authority.
The 1 st respondent further states in deposition that at paragraphs 189 to 225 of its Decision held that the evaluation in the subject tender was not carried out in accordance with the procedures and criteria for evaluation set out in the Tender Document and Section 80(2) of the Act as read with Article 227(1) of the Constitution.
The 1 st respondent is further stated to have arrived at its finding after considering the parties’ submissions on re-evaluation of the tender and the previous orders in Request for Review No. 38 of 2025, which are said to have specified the evaluation criteria to be applied under ITC Clause 21.1 of Section II – Data Sheet at pages 29 to 31 of Part II – Request for Proposals of the Tender Document as amended by Addendum No. 2 of 24 th October 2024.
Further, that the 1 st respondent noted a conflict between the evaluation criteria and sub-criterion stipulated under Clause 21.2 of Section I – Instructions to Consultants at pages 17 to 18 of Part II – Request for Proposals of the Tender Document and how the same was to be scored and the evaluation criterion and sub-criterion stipulated under ITC Clause 21.1 of Section II – Data Sheet of Part II – Request for Proposals of the Tender Document as amended by Addendum No. 2 dated 24 th October 2024 and how the same was to be scored. That as such, the 1 st respondent held that the provisions under the Data Sheet prevail over provisions under the Instructions to Consultants.
The 1 st respondent therefore maintains that it rightfully understood the evaluation criteria to mean, inter alia, that the Technical proposals would be evaluated and scored using the stipulated point system as set out in the Data Sheet whereby scores are indicated as points with an overall score totaling to 100 points, and also, that there is no provision for pro-rating of the scores set out under the data sheet and as such, a bidder would either score the full allocated marks under the Data Sheet or 0.
It is stated further that the Review Board reviewed the Re-Evaluation Report and the Evaluation Committee’s scoring of the ex parte applicant and the 2 nd respondent’s technical proposals, noting that the applicant had scored 77.95 points, while the 2 nd respondent had scored 92.06 points at the Technical Evaluation stage. Further, that Project Experience points were assigned based on the number of projects, with one qualifying project equaling one point up to the sub-criterion maximum.
The 1 st respondent is also said to have noted that for key staff competence, scores were prorated based on CV information, using the categorization under Clause 21.2 of Section I – Instructions to Consultants (General Qualifications, General Professional Experience, Specific Relevant Professional Experience) applied to the Data Sheet scores.
The Review Board further states that the Evaluation Committee used disaggregated sub-criteria that were not prescribed in the Tender Document or introduced via Addendum, and that no justification was provided for how marks were awarded for each component. An example given by the 1 st respondent is that of a Project Manager with a Data Sheet score of 5 which was divided across the categories (General Qualifications 15%, General Professional Experience 25%, Specific Relevant Experience 60%) and further broken down into sub-scores (e.g., University Degree 0.2, Registered Professional 0.25, Specialized Training 0.3). This according to the 1 st respondent, illustrated a complex and unsupported prorated scoring method.
The 1 st respondent also states that based on its observations, it established that the Evaluation Committee improperly introduced extrinsic and undisclosed sub-criteria and adopted a comparative methodology not contemplated in the Tender Document or the Addendum contrary to Section 80(2) of the Act and the explicit terms of the Tender Document. That at paragraph 217 of its Decision, it held that the re-evaluation of the 2 nd respondent’s and the ex parte applicant’s technical proposal was non-compliant with the provisions of the Tender Document and the applicable sections of the Act.
That the 1 st respondent reviewed the ex parte applicant’s tender documents and noted that its financial statements for 2020–2022 were unsigned and uncertified, in contrast to the 2 nd respondent’s financials, which were audited and accompanied by independent audit reports. This non-compliance with the certification requirements under the tender documents and Section 80 of the Act, it is stated, rendered any evaluation of the ex parte applicant unlawful.
It is further stated by the 1 st respondent that it found that strict application of the tender terms made the ex parte applicant ineligible to proceed beyond the prequalification stage and that any evaluation or re-evaluation conducted was voided by operation of the law. The 1 st respondent states that the Review Board’s prior decision in Request for Review No. 38 of 2025 was considered per incuriam and not binding.
The 1 st respondent states that its decision in Request for Review No. 62 of 2025 dated 26 th September 2025 was lawful, procedurally fair, rational and consistent with the Constitution, the Act, the Regulations 2020 and the Fair Administrative Action Act. The 1 st respondent denies the allegation by the exparte applicant that the impugned decision exceeded the Review Board’s mandate and that the said decision upheld procurement integrity and properly considered all evidence and legal requirements.
The 2 nd Respondent’s response
The 2 nd respondent filed a replying affidavit sworn on 16 th October 2025 by Matteo Quaia who introduces himself as the Director and Chief Executive Officer of Steam S.R.L, a party to the Joint Venture between Sintecnica Engineering and Steam S.R.L.
In the affidavit the 2 nd respondent contends that the issues around the financial statements that the 2 nd Respondent brought up in PPARB Application Number 62 of 2025 during the re-hearing revolved around the technical stage and not the Pre-qualification stage where the issue was extensively dealt with in PPARB Application Number 38 of 2025.
Further, that in any case, the 1 st respondent, in its Decision in PPARB Application Number 38 of 2025, recommended that the Procuring Entity conducts due diligence which was to include probing into the financial statements of the tenderers as they are crucial in determining a successful tenderer.
It is also the 2 nd respondent’s case that the financial statements submitted by the Ex-Parte Applicant including its Balance Sheets are not Balance Sheets but Draft Balance Sheets made by the Interested Party itself. The 2 nd respondent also contends that this was also one of the observations that were made by the 1 st Respondent, differently constituted, during the re-hearing and determination of the Application Number 62 of 2025 as it observed in its decision dated 26 th September, 2025 that the financial statements submitted by the ex parte applicant did not meet the conditions set out in the tender document.
According to the 2 nd respondent, this is because under the Italian Law, a Draft Balance Sheet only becomes an approved and formal Balance Sheet, once it is approved by the Board and deposited to the Chamber of Commerce, thereby rendering them as actual financial statements that could then be certified by an auditor.
That contrary to the averments by the ex parte applicants that the issue of financial statements was conclusively dealt with by the 1 st Respondent in its decision in Application No. 38 of 2025 directed the 3 rd and 4 th Respondents to conduct effective due diligence and
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