Emcure Pharmaceuticals Limited VS Public Procurement Administrative Review Board AND Chief Executive Officer, Kenya Medical Supplies Authority AND 1 Others

REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW DIVISION
CASE NO. HCJR/E046/2024
REPUBLIC ……………………………………………………… APPLICANT
-VERSUS-
PUBLIC PROCUREMENT ADMINISTRATIVE
REVIEW BOARD ……….……….……….……………... RESPONDENT
CHIEF EXECUTIVE OFFICER, KENYA
MEDICAL SUPPLIES AUTHORITY ……… 1ST INTERESTED PARTY
HETERO LABS LIMITED …………........... 2NDINTERESTED PARTY
EX- PARTE: EMCURE PHARMACEUTICALS LIMITED
JUDGMENT
Brief Background
1. The Kenya Medical Supplies Authority, the 1st Interested Party herein and the procuring entity, invited sealed tenders from qualified and interested tenderers in response to Tender No. GF ATM HIV NFM- 2023/2024- OIT- 010- SUPPLY OF ARVs MEDICINES I conducted through Open International Tender (OIT) method.
2. In response, a total of ten (10) tenders were submitted from different companies including from the Ex-parte Applicant. The Tender Evaluation Committee undertook evaluation of the ten (10) tenders in the following stages, pursuant to provisions of the tender document:
i. Preliminary Evaluation
ii. Technical Evaluation
iii. Financial Evaluation
3. The tenderers were notified of the outcome of this robust process vide letters dated 18th January, 2024. In essence, the Ex-parte Applicant was notified that its bid was unsuccessful having been disqualified at the Preliminary Evaluation Stage.
4. This precipitated the Ex-parte Applicant to file a Request for Review dated 30th January, 2024 primarily seeking the Board to set aside the procuring entity’s decision to disqualify it from the tendering process at the preliminary stage.
5. In its decision, the Board found that the Applicant’s tender was properly evaluated in accordance with the Tender Documents as read together with Article 227(1) of the Constitution, and Section 80(2) Public Procurement & Assets Disposal Act; and dismissed the Request for Review.
6. Being dissatisfied with the decision of the Board, the Ex-parte Applicant moved to this court to challenge the said decision. The Application that is before the court for determination is dated 4th day of March, 2024. The Applicant seeks the following orders:
1) An Order of Certiorari to remove to the High Court the proceedings and the decision of the Respondent dated 21st February, 2024 for the purposes of being quashed.
2) An order that the Request for Review dated 30th January, 2024 and the decision thereof dated 21st February, 2024 be remitted with directions to the Respondent for reconsideration.
3) Costs of the suit.
7. The Application is predicated on its Statutory Statement dated 1st March, 2024; the Verifying Affidavit sworn on 1st March, 2024; the Amended Statutory Statement date 6th April, 2024; and the Further Affidavit sworn on 6th April, 2024 and deponed as hereunder in support thereof.
8. In the Amended Statutory Statement, the Applicant seeks the following reliefs:
(1). This application be certified urgent and be heard ex parte.
(2). The Ex Parte Applicant be granted leave to apply for an Order of Certiorari to remove to the High Court the proceedings and the decision of the Respondent dated 21st February, 2024 for the purposes of being quashed.
(3). The Ex-parte Applicant be granted leave to apply for an order that the Request for Review dated 30th January, 2024 and the decision thereof dated 21st February, 2024 be remitted with directions to the Respondent for reconsideration.
(4). The leave granted do operate as a stay of implementation of the Respondent’s Decision dated 21st February, 2024 pending hearing and determination of the substantive Notice of Motion.
(5). Costs of the suit be provided for.
(6). The Ex Parte Applicant be granted leave to apply for an Order of Certiorari to remove to the High Court the Contract for Supply of ARVs Medicines I (Tender No. GF ATM HIV NFM-2023/2024 OIT-010) dated 25th February, 2024 for the purposes of being quashed.
(7). The Ex Parte Applicant be granted leave to apply for an Order of Prohibition to prohibit the 2nd Interested Party from supplying and delivering to the 1st Interested Party the goods to be supplied under the Contract for Supply of ARVs Medicines I (Tender No. GF ATM HIV NFM-2023/2024 OIT-010) dated 25th February, 2024.
(8). The Ex Parte Applicant be granted leave to apply for an Order of Prohibition to prohibit the 2nd Interested Party from demanding or accepting any payment from the 1st Interested Party the goods to be supplied under the Contract for Supply of ARVs Medicines I (Tender No. GF ATM HIV NFM-2023/2024 OIT-010) dated 25th February, 2024.
(9). The Ex Parte Applicant be granted leave to apply for an Order of Prohibition to prohibit the 1st Interested Party from receiving, inspecting and accepting the goods to be supplied under the Contract for Supply of ARVs Medicines I (Tender No. GF ATM HIV NFM-2023/2024 OIT-010) dated 25th February, 2024.
(10). The Ex Parte Applicant be granted leave to apply for an Order of Prohibition to prohibit the 1st Interested Party from making any payments to the 2nd Interested Party for the goods to be supplied under the Contract for Supply of ARVs Medicines I (Tender No. GF ATM HIV NFM-2023/2024 OIT-010) dated 25th February, 2024.
(11). The Ex Parte Applicant be granted leave to apply for an Order of Mandamus to compel the 1st Interested Party to recover any payments or to cancel any payments arrangements made to the 2nd Interested Party for the goods to be supplied under the Contract for Supply of ARVs Medicines I (Tender No. GF ATM HIV NFM-2023/2024 OIT-010) dated 25th February, 2024.
9. The Application is vehemently opposed.
Applicant’s Case;
10. The Applicant’s case is also supported by the Verifying Affidavit and Supplementary Affidavit of Mercy Kamau in response and opposition thereof. She deponed that the contents of paragraph 1, 2, 3, 4, 5, 6, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, and 33 of the Replying Affidavit are not in issue.
11. According to her, the Notice of Motion is not an appeal as it sets out illegality and procedural impropriety as the grounds of judicial review, and that it is merited and in pursuit of fair administrative action.
12. It is the Applicant’s case that the Respondent treated the Ex-Parte Applicant unfairly as it arrogated itself the powers of a civil court and overstepped its administrative mandate by striking out the Request for Review No. 50 of 2023 without hearing it in the merits.
13. That the Ex-Parte Applicant had no reason to institute judicial review proceedings as the Respondent nullified the letter of notification in accordance with the Ex-Parte Applicant prayers and directed the 1st Interested Party to issue a fresh letter of notification.
14. The Ex-Parte Applicant’s gravamen and the issue in the Request for Review No. 44 of 2023 was that the 1st Interested Party did not subject the Ex-Parte Applicant’s tender to preliminary examination in accordance with Section 45(1)(2), 66(1), 79(1), 80(4)(5), 82(1), 84, 85 and 87(3) of the Public Procurement and Asset Disposal Act, 2015; Regulation 29(3)(4)(5)(d), 31(1), 33(3)(r), 74(1)(h)(2), 75(1) and 78 of the Public Procurement and Asset Disposal Regulation, 2020; and of the tender document. ITT 12.1(g), ITT 15.1, ITT 15.2, ITT 18.2, ITT 21.1, ITT 26.8(b), ITT 31.1, ITT 32.1, ITT 32.2(a)(b), ITT 40.1 and ITT 41.1(c), Section III(2)(i)(ii), the Schedule of Prices Form and the Schedule of Requirements in Section IV – Tendering Forms.
15. The Ex-Parte Applicant’s gravamen and the issue in issue in Request for Review No. 50 of 2023 was that the 1st Interested Party did not subject the Ex-Parte Applicant’s tender to technical evaluation in accordance with Section 80(2) and 86(1)(a) of the Public Procurement and Asset Disposal Act, 2015; Regulation 76 of the Public Procurement and Asset Disposal Regulations, 2020; Section 31 of the Insurance Act; Regulation 5 and 6 of the Insurance Regulations, 1986; ITT 12.1(f), ITT 17, ITT 18.2, ITT 28, ITT 29, ITT 30, ITT 31.3, ITT 35 and ITT 40.1 of the tender document.
16. The Respondent’s decision in the Request for Review No. 44 of 2023 did not mirror the Request for Review No. 50 of 2023 hence the decision cannot be held to be res judicata.
17. It is its case that the Respondent did no annex any evidence to demonstrate that it had constitutional and legal power to invoke and apply the doctrine of res judicata.
18. It argues that the Respondent is not a local tribunal as contemplated under Article 169(1)(d) of the Constitution; but that it is an administrative body that was not empowered to perform judicial functions.
19. It argues that the Respondent’s mandate being the consideration, inspection, re-examination, and re-evaluation of the 1st Interested Party’s evaluation and award proceedings of the Ex-Parte Applicant’s tender, its procedures are governed by Article 47(1)(2) of the Constitution, and not Article 50(1) of the Constitution.

Applicant’s Submissions;
20. The Respondent is a specialized body which is established under Section 27(1) of the Public Procurement and Asset Disposal Act, 2015 to review, hear and determine tendering and asset disposal disputes (see Section 28(1)(a) of the Public Procurement and Asset Disposal Act, 2015).
21. According to Lord Diplock in the case of Council of Civil Service Unions v Minister for Civil Service [1984] 3 ALL ER 935 at p.950 para. j, “… the decision–maker must understand correctly the law that regulated his decision–making power and must give effect to it…”
22. In the words of Wade & Forsyth in Administrative Law, 10th edition (Oxford: Oxford University Press: 2009), pp 222 – 225, “all errors of law are now reviewable.” This is also the law in Kenya as Section 7(2)(d) of the Fair Administrative Action Act, 2015 empowers the High Court to review the Respondent’s decision if it was materially influenced by an error of law.
23. Error of law is explained in the Halsbury’s Laws of England, 4th Edition para. 77 page 170 in the following terms:
There is a general presumption that a public decision-making body has no jurisdiction or power to commit an error of law. Thus, where a body errs in law in reaching a decision or making an order, the court may quash that decision or order. The error of law must be relevant, that is to say it must be an error in the actual making of the decision which affects the decision itself. Even if the error of law is relevant, the court may exercise its discretion not to quash where the decision would have been no different had the error not been committed. Where a notice, order or other instrument made by a public body is unlawful only in part, the whole instrument will be invalid unless the unlawful part can be severed. In certain exceptional cases, the presumption that there is no power or jurisdiction to commit an error of law may be rebutted, in which case the court will not quash for an error of law made within jurisdiction in the narrow sense. The previous law which drew a distinction between errors of law on the face of the record and other errors of law is now obsolete. A public body will err in law if it acts in breach of fundamental human rights; misinterprets a statute, or any other legal document, or a rule of common law, takes a decision on the basis of secondary legislation, or any other act or order, which is itself ultra vires; takes legally irrelevant consideration into account, or fails to take relevant considerations into account, admits inadmissible evidence, rejects admissible and relevant evidence, or takes a decision on no evidence, misdirects itself as to the burden of proof, fails to follow the proper procedure required by law; fails to fulfil an express or implied duty to give reasons or otherwise abuses its power.”
24. It is the Applicant’s case that the Respondent committed an error of law by assuming jurisdiction to entertain a request for review that was barred by the legal doctrines of exhaustion, waiver, acquiescence, and laches as the 3rd Interested Party failed to exhaust the request for amendment of requirement MR 13(b) as provided Section 75(2) of the Public Procurement and Asset Disposal Act, 2015 and Clause 10 of the Tender Document.
25. That the Respondent committed an error of law by assuming jurisdiction to entertain a request for review that was barred by the legal doctrines of exhaustion, acquiescence, waiver and laches as the 3rd Interested Party failed to exhaust the substitution and modification of its Tender mechanism provided under Section 76 of the Public Procurement and Asset Disposal Act, 2015 and Clause 26 of the Tender Document.
26. As per the Applicant, the Respondent committed an error of law by assuming jurisdiction to entertain a request for review that was barred by the legal doctrines of exhaustion, waiver, acquiescence and laches after the 3rd Interested Party failed to exhaust the communication with the 1st and 2nd Interested Parties mechanism provided under Section 65(3) of the Public Procurement and Asset Disposal Act, 2015; and Clause 28.3 of the Tender Document which provided that:
Notwithstanding ITT 28.2, from the time of Tender opening to the time of Contract Award, if any Tenderer wishes to contact the Procuring Entity on any matter related to the Tendering process, it should do so in writing.
27. To the Applicant, the 3rd Interested Party failed to invoke the provisions and confirm with the 1st and 2nd Interested Parties how its tender was treated in view of its known deficiency. Reliance is placed in the case of Republic v Public Procurement Administrative Review Board & 3 others ex parte AAR Insurance Kenya Limited, HCJR/E005/2022 (supra) Ngaa J held that:
Even then, it is difficult to imagine that the disqualified tenderers, including the 3rd Interested Party, could have been sitting pretty, ignorant as to why their tenders had been disqualified as the rest of the tenderers went through the preliminary, technical and financial evaluations. Assuming that they were not aware of the fate of their bids and the reasons for their elimination, the least they could have been expected to do was to enquire of the reasons for their disqualification at the time they were disqualified and not wait until the award has been made for any of them to seek to nullify the entire procurement process.
28. The Applicant submits that the Respondent committed an error of law by assuming jurisdiction to entertain a request for review that was barred by the legal doctrines of exhaustion, waiver, acquiescence and laches by virtue of Section 167(1) of the Public Procurement and Asset Disposal Act, 2015 and Regulation 203(2)(c)(i) of the Public Procurement and Asset Disposal Regulations, 2020 as the 3rd Interested Party failed to file request for review within fourteen (14) days of the knowledge that mandatory requirement MR 13(b) was ambiguous and defective. Reliance is placed in the case of Speaker of the National Assembly v James Njenga Karume [1992] eKLR the Court of Appeal held that:
In our view, there is considerable merit in the submission that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.
29. The Respondent ought to have been guided by the 3rd Interested Party’s unequivocal and binding declaration at paragraph 1 of the Form of Tender to wit “No reservations: We have examined and have no reservations to the tendering document, including Addenda issued in accordance with ITT 9.” The Respondent therefore committed an illegality by entertaining the 3rd Interested Party’s turn around to impugn the document [read mandatory requirement MR 13(b)] to which it had expressly declared that it had no reservations.
30. In advancing the doctrine of waiver, the Applicant relies on the case of Serah Njeri Mwobi v John Kimani Njoroge [2013] eKLR the Court of Appeal held that:
The doctrine of waiver operates to deny a party his right on the basis that he had accepted to forego the same rights having known of their existence. The doctrine of estoppel operates as a principle of law which precludes a person from asserting something contrary to what is implied by a previous action or statement of that person. See Seascapes Limited vs Development Finance Company of Kenya Limited, [2009] eKLR. The words waiver, estoppel and acquiescence have also been defined by the Halsbury's Laws of England, 4th Edition, Volume 16. At page 992 waiver has been defined as follows: -
Waiver is the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted, and is either express or implied from conduct. It may sometimes resemble a form of election, and sometimes be based on ordinary principles of estoppel, although, unlike estoppel, waiver must always be an intentional act with knowledge. A person who is entitled to rely on a stipulation existing for his benefit alone, in a contract or of a statutory provision, may waive it, and allow the contract or transaction to proceed as though the stipulation or provision did not exist. Waiver of this kind depends upon consent, and the fact that the other party has acted on it is sufficient consideration. Where the waiver is not express it may be implied from conduct which is inconsistent with the continuance of the right... The waiver may be terminated by reasonable but not necessarily formal notice unless the party who benefits by the waiver cannot resume his position, or termination would cause injustice to him?
31. In the case of Banning v Wright (1972) 2 All ER 987 it was held that:
The primary meaning of the waiver in legal parlance is the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted. A person who is entitled to a stipulation in a contract or of a statutory provision may waive it and allow the contract or transaction to proceed as though the stipulation or the provision did not exist. Waivers are not always in writing. Sometimes a person’s actions can be interpreted as a waiver – waiver by conduct.
32. In the case of Sita Steel Rolling Mills Ltd v Jubilee Insurance Company Ltd [2007] eKLR it was held that:
A waiver may arise where a person has pursued such a course of conduct as to evince an intention to waive his right or where his conduct is inconsistent with any other intention than to waive it. It may be inferred from conduct or acts putting one off one’s guard and leading one to believe that the other has waived his right.
33. The Respondent’s order that tenders be exempt from preliminary examination in respect of mandatory requirement MR 13(b) was ultra vires Section 70(4) and 75(1) of the Public Procurement and Asset Disposal Act, 2015 and Clause 10 of the Tender Document   as only the 1st Interested Party has the power to amend the Tender Document.
34. It is the Applicant’s case that the Respondent’s order that tenders be exempt from preliminary examination of mandatory requirement MR 13(b) was ultra vires Section 79(1) and 80(1) of the Public Procurement and Asset Disposal Act, 2015; Regulation 74(1)(a) of the Public Procurement and Asset Disposal Regulations, 2020; Clause 31.1 and 31.2 of the Tender Document and the legal principles of tender evaluation.
35. By its Certificate dated 16th January, 2023 read with paragraph 6 of its Further Affidavit dated 18th January, 2023; the Respondent admitted that its decision was sent out by email on 21st December, 2022 at 12.48 a.m.
36. Under Section 171(1) of the Public Procurement and Asset Disposal Act, 2015 the Respondent was under duty to determine the request for review within twenty-one (21) days. Paragraph 4 of the Respondent’s Public Procurement Administrative Review Board Online Hearing Procedure Guidelines, 2022 provides that:
The Review Board may, for health, security or other compelling reasons, decide that its decisions shall be read at a sitting of the Review Board accessible to the parties and the public by video link or sent via email addresses provided by parties at the time of filing a Request for Review. The decision of the Board shall become binding on the parties on the day of the reading or transmission via email.
37. Hence, the Respondent’s decision became binding on 21st December, 2022 at 12.48 a.m. which was the 22nd day as the 21st day lapsed on 20th December, 2022 at 12.00 a.m.
38. In the case of Republic v Public Procurement Administrative Review Board & 8 others ex parte Petals Hygiene and Sanitation Services Limited, HCJR/E065/2022 Ndung’u J held that:
44. A look at the Interpretation and General Provisions Act does not peg the running of time along the lines of a working day as we know it being 8.00 a.m. to 5.00 p.m. This court is alive to the decision in Aprim Case and the effects on acts done outside the timelines set in the Act. In my view, the 21 days would have lapsed at 12 a.m. on 21st April, 2022.
45. Am fortified in this finding by the decision in Kimani Wanyoike v Electoral Commission & another (1995) eKLR where D.M. Rimita J observed that:
“But unlike what Mr. Imanyara says, a day, in my respectful view, is a period of 24 hours. It commences from midnight and ends at midnight…”
39. The Applicant submits that the Respondent’s decision-making process was ultra vires Section 171(1) of the Public Procurement and Asset Disposal Act, 2015 and it was therefore tainted by illegality. In the case of Republic v Principal Secretary, Ministry of Defence & 2 others; Kenya Tents Limited Ex Parte Unique Supplies Limited (2019) eKLR Mativo J held that:
59. 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; …
40. Despite finding that mandatory requirement MR 13(b) was ambiguous, the Respondent entertained the request for review which it ought not to have entertained in view of Clause 9.1 and ITT 8.2 and ITT 9.1; Clause 10 and Clause 26 of the Tender Document and Section 65(3), 75(2), 76 and 167(1) of the Public Procurement and Asset Disposal Act, 2015 and Regulation 203(2)(c)(i) of the Public Procurement and Asset Disposal Regulations, 2020.
41. In the case of Republic v Public Procurement Administrative Review Board & 3 others ex parte AAR Insurance Kenya Limited, HCJR/E005/2022 (supra) Ngaa J held that:
There could also be an element of procedural impropriety in the Respondent’s decision to the extent that the Respondent entertained an application for review which it ought not to have entertained in the first place and subjected the applicant to unnecessary proceedings.
Whereas the Respondent raised, impugned and made a determination suo moto of Jane Muthee’s qualifications; the issue of five (5) years’ experience and the qualifications submitted by GA Insurance Limited, Zamara Risk & Insurance Brokers Limited, AAR Insurance Kenya Limited, Madison General Insurance Kenya Limited and Heritage Insurance Company Kenya Limited in response to mandatory requirement MR 13(b), it did not adduce any evidence to demonstrate that it gave the Ex parte Applicant an opportunity to be heard or to make representations thereof.
42. In the case of Republic v Public Procurement Administrative Review Board & another ex parte Managing Director, Ruiru-Juja Water and Sewerage Company Limited & another, HCJR/E130/2022 Ndung’u J held that:
42. Even where the court raises an issue suo moto in a proceeding, the parties affected by such issues must have their say. This, notwithstanding how obvious in the eyes of the court the issue would be.
44. Having satisfied myself that the 2nd Applicant was not heard on the question of the validity of its licence, it is irrelevant whether the Board would have arrived at the same decision even if it had afforded the parties an opportunity of being heard before making its decision. It must always be remembered that where a party has a right to be heard, that right cannot be taken away by the mere fact that the Board considers that the said party’s contribution is unlikely to affect the decision.
43. In the case of Pastoli v Kabale District Local Government Canal & Others (2008) 2EA 300 at pages 300-304 it was held that:
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 the decision or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires or contrary to the provision of a law or its principles are instances of illegality. Irrationality is when there is such gross unreasonableness in the decision taken or acts 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 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 to act 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 legislature instrument by which such authority exercises jurisdiction to make a decision.
44. In the case of Chief Constable of North Wales Police v Evans (1982) 3 ALL E.R. at pg. 141 Lord Hailsham L.C. stated that:
It is important to remember in every case that the purpose of the remedy of judicial review is to ensure that the individual is given fair treatment by the authority to which he has been subjected and that it is no part of that purpose to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in question.
45. That from the impugned decision, it is evident that the Ex Parte Applicant was treated unfairly as the Respondent’s decision was tainted by error of law and procedural impropriety and there is therefore justification for the award of the reliefs sought.
46. The judicial review was necessary and the Ex Parte Applicant is entitled to costs of the suit. According to Section 27(1) of the Civil Procedure Act, “… costs follow the event.” In the case of Cecilia Karuru Ngayu v Barclays Bank of Kenya & another [2016] eKLR Mativo J summarised the factors to consider when awarding cost:
To my mind, in determining the issue of costs, the court is entitled to look at inter alia (i) the conduct of the parties, (ii) the subject of litigation, (iii) the circumstances which led to the institution of the proceedings, (iv) the events which eventually led to their termination, (v) the stage at which the proceedings were terminated, (vi) the manner in which they were terminated, (vii) the relationship between the parties and (viii) the need to promote reconciliation amongst the disputing parties pursuant to Article 159(2)(c) of the Constitution. In other words, the court may not only consider the conduct of the party in the actual litigation, but the matters which led to the litigation, the eventual termination thereof and the likely consequences of the order for costs.
47. Awarding costs to the Ex Parte Applicant would be for purposes of compensating it for the trouble it has taken in prosecuting the judicial review. In his literally work Judicial Hints on Civil Procedure, 2nd Ed. (Nairobi: Law Africa, 2011), p. 94, Kuloba J posits that:
The object of ordering a party to pay costs is to reimburse the successful party for amounts expended on the case. It must not be made merely as a penal measure… Costs are a means by which a successful litigant is recouped for expenses to which he has been put in fighting an action.”
Respondent’s Case;
48. On Jurisdiction, it is the Attorney-General case that this court is devoid of jurisdiction to hear this matter by virtue of the executed contract between the 1st and 2nd Interested Parties.
49. According to the Respondent, the invitation to Tender Document expressively stipulated the mandatory nature of the requirement of tender documents to be paginated. As a matter of fact, this is the first requirement, listed under the Preliminary Evaluation. The section goes further to state that failure to comply with mandatory requirements will lead to disqualification.
50. The Ex-parte Applicant’s bid was disqualified at the Preliminary Evaluation stage for failure to paginate their documents. This was promptly communicated to the Applicant vide a notification letter dated 18th January, 2024.
51. Section 3 on the Evaluation and Qualification Criteria which elucidates that Preliminary Examination will determine the responsiveness of the bid. Non-adherence to the mandatory requirements in the preliminary stage leads to an automatic disqualification and bidders cannot proceed to the next level.
52. Section 79 (1) of the Public Procurement & Assets Disposal Act provides that a tender is responsive if it conforms to all the eligibility and other mandatory requirements in the tender documents. Reliance is placed in the case of Republic vs Public Procurement Administrative Review Board; Kenya Medical Supplies Authority (KEMSA) Ex-parte Emcure Pharmaceuticals Limited {2019} eKLR interpreted this provision of the law and pronounced itself thus:
“A proper construction of the above provision [section 79 of the Act] shows that the requirement of responsiveness operates in the following manner: – a bid only qualifies as a responsive bid if it meets with all requirements as set out in the bid documents. Bid requirements usually relate to compliance with regulatory prescripts, bid formalities, or functionality/technical, pricing, and empowerment requirements. Bid formalities usually require timeous submission of formal bid documents such as tax clearance certificates, audited financial statements, accreditation with standard-setting bodies, membership of professional bodies, proof of company registration, certified copies of identification documents, and the like. Indeed, public procurement practically bristles with formalities, which bidders often overlook at their peril.
“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.”
“The ex parte applicant has failed to demonstrate the decision [of the PPARB upholding the decision of the Procuring Entity to disqualify the Applicant] is unreasonable or irrational. This is because the omitted documents were mandatory requirements under the tender documents. It follows that the Respondent did not take into account irrelevant considerations.”
53. In the case of Island Homes Developers Limited V Public Procurement Administrative Review Board; Kenya Ports Authority & 2 others (Interested Parties) [2020] eKLR, held as follows:
Pagination of tender documents is a mandatory requirement under Section 74 of the Act, and failure to paginate every page even the overleaf pages CANNOT therefore be interpreted as a minor deviation from the requirements set out in the tender documents, and cannot fall within the exceptions provided for in Section 79 of the Act. See Republic vs Public Procurement Administrative Review Board & 3 Others Ex-parte Saracen Media Limited, (2018) eKLR where it was held that it is a universally accepted principle of public procurement that bids which do not meet the minimum requirements as stipulated in a bid document are to be registered as non-responsive and rejected without further consideration.
It is the finding of this Court that the Applicant’s non–conformity with clause (ii) on page 24 of the tender document that required all the pages in the whole document to be numbered in the correct sequence was NOT a minor deviation. The deviation if allowed would undermine the underlying purpose of supplying information to bidders for the preparation of tenders, and would also amount to unfairness if some bidders were allowed to circumvent tender conditions.
54. In furtherance of the Rule of Law, the Board relied heavily on the provisions of Article 227 of the Constitution which enshrines the right to fairness in procurement processes.
1) When a State organ or any other public entity contracts for goods or services, it shall do so in accordance with a system that is fair, equitable, transparent, competitive, and cost-effective….”
55. In Republic v Public Procurement Administrative Review Board; Accounting Officer, Kenya Rural Roads Authority & 2 others (Interested Parties) Ex Parte Roben Aberdare (K) Ltd [2019] eKLR the court held that:
“First, 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 purpose of supplying information to bidders for the preparation of tenders and amount to unfairness if some bidders were allowed to circumvent tender conditions. As stated above, the second Interested Party complied with the bid requirements. Second, 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 tender conditions. Third, 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. Fourth, fairness must be decided on the circumstances of each case. Whatever is done may not cause the process to lose the attribute of fairness or, in the constitutional sphere, the attributes of transparency, competitiveness, and cost-effectiveness. A procuring entity is bound to adhere to the terms of the procurement process.”
56. This criterion is compulsory, unavoidable, and cannot be waived. Without meeting them, no justifications or explanations can salvage a bidder's position.
57. The Ex-parte Applicant is inviting this Honourable Court to review the merits of the decision of the Board thus offending the law on Judicial Review procedures.
58. Reliance is placed in The Supreme Court in the matter of Edwin Harold Dayan Dande & 3 others v The Inspector General, National Police Service & 5 others pronounced themselves succinctly thus:
“We have, however, observed that the Appellate Court was right in its finding that the High Court should not have gone to the merits of the Review Board decision as if it was an appeal, nor granted the Order of Mandamus, since the 1st respondent did not owe any delimited statutory duty to the petitioner.”
… then the Court can only limit itself to the process and manner in which the decision complained of was reached or action taken and following our decision in SGS Kenya Ltd and not the merits of the decision per se.”
59. To advance this argument, the Applicant refers the court to the case of Municipal Council Mombasa v Republic & another [2002] eKLR, The Court of Appeal observed as follows:
“the Court has repeatedly said, that judicial review is concerned with the decision-making process, not with the merits of the decision itself.
60. It is the Respondent’s case that although the Ex-Parte Applicant has attempted to couch their prayers to fault the procedure followed by the Board, this attempt has flatly failed as they have not adduced an iota of evidence to back up these claims.
61. It is the Respondent’s case that the decision to uphold the Board’s decision should hinge primarily on procedural regularity, reaffirming the overarching principle that judicial review does not entail substituting administrative decisions with judicial ones based solely on the merits of the case.
The 1st Interested Party’s Case;
62. The Ex-parte Applicant was granted leave on 5th April, 2024 to amend the Statement dated 1st March, 2024 and to file a further affidavit.
63. The Applicant was directed to amend its statutory statement, file and serve the same plus any further affidavit by midnight on 5th April 2024. The Applicant did not comply with the said timelines imposed by the Court.
64. It is their case that the Applicant’s proposed amendments to its statutory statement, were primarily aimed at introducing the following new prayers to the statutory statement.
a) The Ex-parte Applicant be granted leave to apply for an Order of Certiorari to remove to the High Court the Contract for Supply of ARVs Medicines 1 (Tender No. GF ATM HIV NFM-2023/2024 OIT-010) dated 25th February 2024 for the purpose of being quashed.
b) The ex parte Applicant be granted leave to apply for an Order of Prohibition the 2nd Interested party from supplying and delivering to the 1st Interested party the goods to be supplied under the Contract for Supply of ARVs Medicines 1 (Tender No. GF ATM HIV NFM-2023/2024 OIT-010) dated 25th February 2024.
c) The ex parte Applicant be granted leave to apply for an Order of Prohibition to prohibit the 2nd Interested party from demanding or accepting any payment from the 1st Interested party for the goods to be supplied under the Contract for Supply of ARVs Medicines 1 (Tender No. GF ATM HIV NFM-2023/2024 OIT-010) dated 25th February 2024.
d) The ex-parte Applicant be granted leave to apply for an Order of Prohibition to prohibit the 1st Interested party from receiving, inspecting and accepting the goods to be supplied under the Contract for Supply of ARVs Medicines 1 (Tender No. GF ATM HIV NFM-2023/2024 OIT-010) dated 25th February 2024.
e) The ex –parte Applicant be granted leave to apply for an Order of Prohibition to prohibit the 1st Interested party from making any payments to the 2nd Interested party for the goods to be supplied under the Contract for Supply of ARVs Medicines 1 (Tender No. GF ATM HIV NFM-2023/2024 OIT-010) dated 25th February 2024.
f) The ex-parte Applicant be granted leave to apply for an Order of Mandamus to compel the 1st Interested party to recover any payments arrangements made to the 2nd interested party for the goods to be supplied under the Contract for Supply of ARVs Medicines 1 (Tender No. GF ATM HIV NFM-2023/2024 OIT-010) dated 25th February 2024.
65. The Notice of Motion application dated 27th March, 2024 the Applicant did not seek and was not granted any leave to amend its Notice of Motion application dated 4th March, 2024 to introduce any of the aforesaid new or additional reliefs that the Applicant intended to introduce to its statutory statement   through the proposed amendment of its statutory statement. Any amendment of the statutory statement without corresponding amendments to the Notice of Motion dated 4th March, 2024 being made would be of no consequence.
66. In Republic v Attorney General & 4 Others Ex parte Diamond Hasham Lalji and Ahmed Hasham Lalji (2014) eKLR, Justice Odunga, as he then was, in a judgment delivered on 28th July 2014, held as follows:
“93. The first issue I intend to deal with is in respect to the parameters of an amendment envisaged under Order 53 Rule 4 (2) of the Civil Procedure Rules. That provision provides ...
94. It however must be kept in mind that under rule 1 (1) of the said Order:
‘No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefor has been granted in accordance with this rule’
95. It must be remembered that rule 2 of the said Order provides for limitation under certain specified circumstances and provides:
‘Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, decree, conviction or other proceeding for the purposes of its being quashed, unless the application for leave is made not later than six months after the date of the proceeding or such shorter period as may be prescribed by any Act; and where the proceeding is subject to appeal and a time is limited by law for bringing of the Appeal, the judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.”
96. This provision is derived from Section 9 (3) of the Law Reform Act.
97. Therefore the power to grant leave to amend the Motion cannot be exercised in such a way as to defeat the provisions of Section 9 93) of the Law Reform Act. To argue that an amendment pursuant to Order 53 Rule 4 (2) is permissible to introduce a relief for which leave was neither sought nor granted is likely to lead to situations where parties may go round the limitation provided under Section 9 (3) aforesaid by seeking orders for which no limitation are provided and later on introduce a relief which is expressed by statute to be barred by limitation by way of amendment. To allow that to happen would in my view amount to upholding the provisions of a subsidiary legislation contrary to the express provisions of an Act of Parliament and that is prohibited under Section 31 (b) of the Interpretations and General Provisions Act, Cap 2 Laws of Kenya which provides that no subsidiary legislation shall be inconsistent with the provisions of an Act.
98. This Court in Republic vs. Kenya Railways Corporation ex-parte Sheets and Hardware Ltd & Another Nbi JR ELC Miscellaneous Civil Suit No. 2 of 2009 dealing with a similar issue expressed itself as follows:
“Before I deal with the merits of the application, it is important to note that these proceedings were commenced by Chamber Summons dated 19th January 2009 filed on 22nd January 2009. According to the said application the applicant was Sheets and Hardware Limited and leave was sought to allow the said applicant to apply for judicial review orders of prohibition and certiorari. According to the Statement filed together with the same application, the applicant was expressly stated as Sheets and Hardware Limited and it was stated that it was the said applicant who was the registered proprietor of the two parcels Nos. LR 209/1253 and 209/1254. On 23rd January 2009, this Court granted leave to the applicant to apply for the said orders. The applicant however applied after leave had been granted and the substantive Motion filed vide an application dated 23rd January 2011, for leave to amend its said Motion which application was allowed on 23rd January 2012.One of the effect of the said amendment was that a secondary party was introduced into these proceedings being Kirit Patel.... In my view, the mere fact that a Court has allowed an application for an amendment does not validate the claim. Even where parties are joined to ordinary civil proceedings, the Court may at the end of the day disallow the claim of the party who was joined despite having allowed such joinder...It is therefore clear that for an applicant to apply for judicial review the applicant is enjoined to apply for leave to do so.   In my view, without leave having been sought and obtained the Court has no jurisdiction to grant judicial review orders under Section 8 and 9 of the Law Reform Act as read with Order 53 of the Civil Procedure Rules. In this case the only person who sought leave and to whom leave was granted was Sheets ND Hardware and not Kirit Patel. It follows that even without going into the merits of the application the application in so far as it seeks orders in favour of the said Kirit Patel is incompetent and the claim by the said person is struck out.”
...
101. It is therefore my view that since no leave was sought and obtained to apply for prayers 1 and 3 in the Motion, notwithstanding the amendment of the Motion those prayers are incompetently before this Court. The same are accordingly struck out.”
67. Reliance is placed in the case of Pastoli vs Kabale District Local Government Council and Others [2008] 2 EA 300.
68. The Applicant does not specify, in its judicial review application, the statutory procedure prescribed under the aforesaid Part XV of the Public Procurement and Asset Disposal Act 2015 and Part XV of the Public Procurement and Asset Disposal Regulations 2020 that was allegedly violated by the Respondent.
69. It submits that Section 67 (1) of the Public Procurement and Asset Disposal Act 2015 provides for confidential information that should not be disclosed by a procuring entity, employee or agent of the procuring entity or member of the Board, Commission or Committee of the procuring entity.
70. Disclosure of confidential information is only allowed where the circumstances listed in Section 67 (3) of the Public Procurement and Asset Disposal Act 2015 apply. But even in such a scenario, Section 67 (4) of the Public Procurement and Asset Disposal Act 2015 limits the disclosure to a person seeking a review under Part XV of the said Act to the summary referred to in Section 68 (2) of the Public Procurement and Asset Disposal Act 2015, to wit, a summary of the proceedings of the opening of tenders, proposal or quotations, including the evaluation criteria used.
71. The Applicant is not entitled to a disclosure of the contents of another bidder’s bid and the Applicant has not explained to this court how it got information regarding the bids submitted by other bidders.
72. Section 67 (5) of the Public Procurement and Asset Disposal Act 2015 provides that any person who contravenes the provisions of Section 67 in general commits an offence as stipulated in Section 176 (1) (f) of the said Act.
73. Section 176 (1) (f) of the Public Procurement and Asset Disposal Act 2015 provides that a person shall not divulge confidential information under Section 67.
74. Section 176 (4) of the Public Procurement and Asset Disposal Act 2015 is also relevant. It provides as follows:
“(4) If a person or an employee or agent of a person contravenes the provisions of this Act, the following shall apply—
(a) The person shall be disqualified from entering into a contract for the procurement; or
(b) if a contract has already been entered into with the person, the contract shall be voidable at the option of the procuring entity.”
75. In Petition No. 58 of 2014, Okiya Omtatah Okoiti & 2 Others v. Attorney General & 3 Others (2014) eKLR, Justice Lenaola, as he then was, at paragraphs 84 to 89 of the said Judgment, considered the effect of a party relying on illegally obtained evidence and held as follows:
“The point made in the context of the matter before me is that if litigants choose to use clandestine means to procure information such would heavily compromise the need for Article 35 of the Constitution and would obviously violate the other parties’ fundamental right of privacy under Article 31 of the Constitution. Had the petitioners followed lawful channels and procedures available in law in obtaining the information, then the question of violation of the Respondents’ right to privacy as alleged in the Cross-Petition would not have arisen.
It is obvious that the documents purportedly relied upon by the petitioners do not meet the criteria (provided in law) and are therefore inadmissible...
I also say so because Article 50 (4) of the Constitution states as follows;
“Evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights shall be excluded if the admission of that evidence would render the trial unfair or would otherwise be detrimental to the administration of justice.”
76. The aforesaid decision of the High Court was upheld by the Court of Appeal in Civil Appeal No. 13 of 2015, Okiya Omtatah Okoiti & 2 Others v. Attorney General & 4 Others (2020) eKLR.
77. The Respondent was legally empowered under Section 173 of the Public Procurement and Asset Disposal Act 2015 to give the Orders that it gave in its impugned decision.
78. It is submitted that the Applicant has not demonstrated that the Respondent acted ultra vires its statutory mandate or that it made any error in the construction or interpretation of the law.
79. Article 47 of the Constitution, Section 79 (2) and 80 (2) of the Public Procurement and Asset Disposal Act 2015 and Regulation 74 (2) of the Public Procurement and Asset Disposal Regulations 2020, which the Applicant purports to rely on, do not confer any powers on the Respondent to direct a procuring entity to waive an evaluation criterion.
80. The Respondent’s decision cannot be said to be tainted with illegality because it did not direct the 1st Interested Party to waive an evaluation criterion as a minor deviation.
81. The Tender Document provided at Clause 7 of the Invitation to Tender at page 3 of the Tender Document as follows:
“7. Completed serialized/paginated Bidding documents shall be submitted accompanied with a signed declaration of the number of pages...”
82. Mandatory Requirement No.1 of Clause A) Preliminary Examination of Section III – Evaluation and Qualification Criteria at page 38 of the Tender Document provided as follows:
“1. Tender documents must be paginated/serialized. All bidders are required to submit their documents paginated in a continuous ascending order from the first page to the last in this format (i. e 1, 2, 3...........n where n is the last page) (MANDATORY)
83. The following caution was clearly indicated in the Tender Document after the Mandatory Requirements listed in the aforesaid page:
“NOTE: Failure to comply with Mandatory requirements will lead to disqualification. Only bidders who are successful at this stage will proceed to the next stage of evaluation.”
84. It is not in dispute that the Applicant did not paginate page 89 of its bid document in accordance with the aforesaid mandatory tender requirement.
85. The Applicant claims that the Procuring Entity ought to have waived its omission to paginate/serialize its bid document this omission and treated it as a minor deviation as it did not go to the substance of the tender.
86. Section 79 (2) and (3) of the Public Procurement and Asset Disposal Act 2015 provide as follows with respect to minor deviations:
“(2) A responsive tender shall not be affected by-
(a) Minor deviations that do not materially depart from the requirements set out in the tender documents; or
(b) Errors or oversights that can be corrected without affecting the substance of the tender;
(3) A deviation described in subsection (2) (a)shall-
(a) be quantified to the extent possible; and
(b) be taken into account in the evaluation and comparison of tenders.”
87. The High Court in Miscellaneous Civil Application 85 of 2018 Republic v Public Procurement Administrative Review Board Ex parte Meru University of Science & Technology; M/S Aaki Consultants Architects and Urban Designers (Interested Party) [2019] eKLR considered what amounts to “a minor deviation” and determined as follows:
“The term ‘acceptable tender’ means any tender which, in all respects, complies with the specifications and conditions of tender as set out in the tender documents. A tender may be regarded as acceptable, even if it contains minor deviations that do not materially depart from the characteristics, terms, conditions and other requirements set out in the tender documents or if it contains errors or oversights that can be corrected without touching on the substance of the tender. Any such deviation shall be quantified to the extent possible, and appropriately taken account of in the evaluation of tenders. A tender shall be rejected if it is not acceptable...
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 of which would defeat the underlying purpose of supplying information to bidders for the generation 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.”
88. Clause 2.5.1 of the Standard Tender Documents for the procurement of Goods provides as follows:
“A prospective tenderer requiring any clarification of the tender Document may notify the Procuring Entity in writing or by post at the entity’s address indicated in the Invitation to Tender.  The Procuring entity will respond in writing to any request for clarification of the tender documents, which it receives not later than seven (7) days prior to the deadline for the submission of tenders, prescribed by the procuring entity.  Written copies of the Procuring entities response (including an explanation of the query but without identifying the source of inquiry) will be sent to all prospective tenderers that have received the tender Document.”
89. Clause 2.5.2 of the Standard Tender Documents for the procurement of Goods provides as follows:
“The procuring entity shall reply to any clarification sought by the tenderer within 3 days of receiving the request to enable the tenderer to make timely submission of its tender.”
90. In buttressing the importance of serialization of a bid document, the court is referred to Judicial Review Miscellaneous Application No. 312 of 2018, Republic v Public Procurement Administrative Review Board; Nairobi City Water & Sewerage Company Limited & another (Interested Parties) Ex parte Four-way Construction Company Limited [2019] eKLR.
91. In order to advance its case on the importance of Pagination of a bid document it is relied on PPARB Review Application No. 129 of 2019 Island Homes Developers vs. Kenya Ports Authority & 2 Others which was upheld by Justice Ogola in Island Homes Developers Limited vs. Public Procurement Administration Review Board, Kenya Ports Authority & 2 Others (2020) eKLR,
92. Section 74(1) (I) of the Public Procurement and Asset Disposal Act 2015 provides as follows:
“(1) The accounting officer shall ensure the preparation of an invitation to tender that sets out the following—
i. requirement of serialization of pages by the bidder for each bid submitted”
93. Regulation 74(1)(b) of the Public Procurement and Asset Disposal Regulations 2020 provides that:
(b) the tender has been submitted in the required format and serialized in accordance with section 74(1)(i) of the Act.”
94. Regulation 75 (1) of the Public Procurement and Asset Disposal Regulations 2020 provides that:
“(1) A procuring entity shall reject all tenders, which are not in conformity to the requirements of section 79 of the Act and regulation 74 of these Regulations.”
95. In Republic v. Public Procurement Administrative Review Board Ex parte Meru University of Science & Technology; M/S Aaki Consultants Architects and Urban Designers (Interested Party) (2019) eKLR, the Court held that:
“In public procurement regulation it is a general rule that procuring entities should consider only conforming, compliant or responsive tenders.”
96. As regards eligibility and mandatory requirements, Section 79 (1) of the Public Procurement and Asset Disposal Act 2015, provides as follows:
“A tender is responsive if it conforms to all the eligibility and other mandatory requirements in the tender documents.”
97. The aforesaid eligibility and mandatory requirements were considered by Justice Mativo, as he then was, in the aforesaid Miscellaneous Civil Application 85 of 2018 Republic v Public Procurement Administrative Review Board Ex parte Meru University of Science & Technology; M/S Aaki Consultants Architects and Urban Designers (Interested Party) [2019] eKLR where he held as follows:
“…Indeed, public procurement practically bristles with formalities which bidders often overlook at their peril. 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, empowerment or post qualification. 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...
Mandatory criteria establish the basic requirement of the invitation. Any bidder that is unable to satisfy any of these requirements is deemed to be incapable of performing the contract and is rejected. It is on the basis of the mandatory criteria that “competent” tenders are established...”
98. A responsive bid is one that meets all the mandatory requirements as set out in the bid document which are in essence the first hurdle that bidders must overcome for further consideration in an evaluation process. These eligibility and mandatory requirements are therefore considered at the Preliminary and Technical Evaluation stages after which Financial Evaluation is conducted. Further, bidders found to be non-responsive are excluded from the bid process regardless of the merits of their bids.
99. In Republic v Public Procurement Administrative Review Board; Ex parte Accounting Officer, Kenya Ports Authority & Another; FCM Travel Solutions t/a Charleston Travel Limited & 3 Others (Interested parties) (2021) eKLR the Court held as follows:
“50. I therefore find that despite the fact that serialization was not a mandatory requirement in the ex-parte applicants tender document, it is a mandatory requirement under section 74 of the PPAD Act of 2015 and all bidders ought to have fully complied.
51. Section 79 of the PPAD Act of 2015 gives instances where a responsive tender shall not be affected. The said section reads as follows:
“(1) A tender is responsive if it conforms to all the eligibility and other mandatory requirements in the tender documents.
(2) A responsive tender shall not be affected by—
(a) minor deviations that do not materially depart from the requirements set out in the tender documents; or
(b) errors or oversights that can be corrected without affecting the substance of the tender.
(3) A deviation described in subsection (2) (a) shall—
(a) be quantified to the extent possible; and
(b) be taken into account in the evaluation and comparison of tenders.
52. That failure to serialize each and every page of a tender document cannot translate to a minor deviation from the laid down principles set down in law as explained hereinabove. It is my finding that the decision by the respondent directing the ex-parte applicants’ to re-admit non-responsive bids is in contravention with the provisions of section 74 and 79 of the PPAD Act of 2015 and thus ultra vires.”
100. As regards deviations from mandatory bid requirements, the High Court in Miscellaneous Civil Application 140 of 2019 Republic v Public Procurement Administrative Review Board; Accounting Officer, Kenya Rural Roads Authority & 2 others (Interested Parties) Ex Parte Roben Aberdare (K) Ltd [2019] eKLR had the following to say: -
“It is evident that compliance with the requirements for a valid tender process including terms and conditions set out in the bid documents, issued in accordance with the constitutional and legislative procurement framework, is thus legally required. These requirements are not merely internal prescripts that a bidder or the Respondent may disregard at whim. To hold otherwise would undermine the demands of equal treatment, transparency and efficiency under the Constitution. Mandatory requirements in bid documents must be complied with. Deviations from mandatory bid requirements should not be permissible.”
101. The Applicant was properly disqualified at the Preliminary Evaluation stage for failure to comply with the said mandatory requirement. In Republic vs. Public Procurement Administrative Review Board & Another Ex parte: Athi Water Service Board & Another [2017] eKLR, the High Court discussed the scope of seeking clarifications and held as follows:
“Such clarification is however not a passport for the tenderer to change the terms of the tender. In my view a clarification cannot be equated to a confirmation of the procuring entity’s view of the tenderer’s bid. Where the procurement entity can ascertain the bid, there would be no need for the procuring entity to seek a clarification. However, the mere fact that the procuring entity seeks a clarification and a response is given does not bind the procuring entity to the purported clarification if the so-called clarification in fact amounted to change the terms of the tender.”
102. It is submitted that price, is not the only consideration by a procuring entity when determining the bidder to be awarded a tender. This explains why Preliminary and Technical Evaluation deal with responsiveness to eligibility and mandatory requirements including technical specifications as the first hurdle that bidders have to overcome in determining their responsiveness.
103. It is further submitted that consideration of price is made during the last stage of evaluation, that is, Financial Evaluation, so that bidders first demonstrate their responsiveness to eligibility and mandatory requirements, including technical specifications.
104. It is its case that a procuring entity cannot base its decision on award of a tender to a bidder who failed at Preliminary Evaluation simply because the bidder submitted a lower bid price.
105. In the aforesaid Judicial Review Miscellaneous Application No. 85 of 2018, Republic v. Public Procurement Administrative Review Board ex parte Meru University of Science & Technology & and M/S Aaki Consultants Architects and Urban Designers (2019) eKLR, the Court held as follows:
“...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, empowerment or post qualification. Bidders found to be nonresponsive are excluded from the bid process regardless of the merits of their bids.
106. The Applicant herein never made it to Technical Evaluation to be considered for Financial Evaluation where its bid could have been evaluated to determine if it would emerge the lowest evaluated responsive bidder for award of the subject tender.
107. It is its case that Application does not conform to the dictates of Judicial Review proceedings and the Application as drafted is an Appeal.
108. Section 79 (1) of the Public Procurement and Disposal Act, 2015 [The Act] provides that a tender is only responsive if it confirms to all the eligibility and mandatory requirements in the tender documents.
109. Section 79 (2) of the Act provides that a responsive tender shall not be affected by: minor deviations that do not materially depart from the requirements set out in the documents; or b) errors of oversight that cannot be corrected without affecting the substance of the error.
110. All tender documents had to comply with all the instructions to tender and even minor deviations are not to depart from the instructions to tender. Therefore, it is not correct or true for the Applicant to allege that it is only an error in the tender price that can lead to disqualification of the tender, but any other deviation, including minor deviations that depart from the requirements set out in the instructions to tender documents.
111. The ex-parte Applicant in their request for review admits that there was an error in the pagination of their documents an error which as per the tender documents entitled the 1st Interested Party to disqualify the Applicant from the tendering process.
112. It is its case that pagination and serialization of tender documents was mandatory requirement under provisions of law and in particular Section 74 (1) (i) and 79 (1) of the Public Procurement and Disposal Act 2015 and further under Regulation 74 (1) (b) and 75 (1) of the Public Procurement and Asset Disposal Regulations 2020.
113. The tendering process was guided by the law, relevant Regulations and the instructions to tender thereunder to which all the Tenderers were to comply with and subjected to. The Ex-parte Applicant failed to comply with both the law, Regulations and Instructions to Tender.
114. Any Tender that does not comply with the law, regulations and instructions to tender is a non -responsive tender and the 1st Interested party had no obligation to further determine or explain to the Applicant how its tender will affect the scope, quality or performance of the goods and related services, Applicant’s obligations under the contract or how it would have affected the Tenderers competitive position.
115. The request for further information by the procurement entity is at the discretion of the procurement entity and only when it deems fit.
116. It is not mandatory for the Procurement entity to waive any non-conformity, especially in a fairly competitive process like it was in this matter, an d the Applicant’s allegations are tantamount to requesting and stating that it should have been given special favors and priority against the backdrop of Articles 47 (1) and 227 (1) of the Constitution, sections 79 (2) and 80 (2) of the Public Procurement and Asset Disposal Act, 2015 as well as Regulations 74 (2) and 80 (2) of the Regulations, 2020, of which it claims were violated.
117. The Ex-parte Applicant did not provide any evidence that the 1st Interested party discriminated against it by favoring the 2nd Interested party and other tenderers by allowing their documents which as per the allegations of the Ex-parte Applicant contained errors in paginations errors which they fail to substantiate.
118. All the instructions to tender were very clear as to what was required by all the parties applying for the tender and the allegations that the Respondent breached Article 47 (1) and 227 (1) of the Constitution, Section 79 (2) and 80 (2) of the Public Procurement and Asset Disposal Act, and Regulations 74 (2) and 75 (2) by allegedly failing to define the Applicant’s non- compliance with the Tender Documents as either deviation, reservation or omission is unfounded and without any factual or legal basis.
119. The Ex-parte Applicant admit that they missed out on the pagination requirement, a requirement which was indicated as Mandatory but they wish to have the same from their point of view considered a minor deviation from the tendering instructions.
120. The 2nd Interested Party’s bidding price was not abnormally high within the meaning of the rules in the tender documents. In fact, it was/ is within the market price range and in conformity with the principles of cost effectiveness and prudence as envisaged under Article 201 (d) and 227 (1) of the Constitution. The allegations of breach of Articles 201 (d) and 227 (1) of the Constitution are therefore unfounded and speculative on the part of Applicant.
121. The Respondent complied with Articles 47(1) and 227(1) of the Constitution of Kenya by ensuring that all the parties who applied for the Tender and submitted their tender documents were given a fair treatment, the tendering process was efficient, lawful, equitable, transparent, competitive, cost-effective, reasonable and procedurally fair.
122. Rules 74 (1) (b) and 74 (1) (c) of the Public Procurement and Disposal Regulations, 2020, are to be considered in totality as one whole under Rule 74 of the Public Procurement and Disposal Regulations, 2020, and not in isolation.
123. In any event, the 2nd Interested Party states that the Ex-parte Applicant failed to comply with Rule 74 of the Public Procurement Regulations, 2020 and the Ex-parte Applicant cannot either speculate which rule was applied and at the same time decide which one should have been applied and which should not.
124. While responding to the Ex-Parte Applicant’s Amended Statement and Further Affidavit both amended and sworn on 27th March, 2024 S. Bhavesh Shah argues that in the Decision, the Respondent was categorical in its’ final Order D that the 1st and 2nd Interested parties could go ahead and proceed with the procurement process in Tender No. GF ATM HIV NFM-2023/2024-OIT- 010- SUPPLY OF ARVS MEDICINES I to its’ logical conclusion in accordance with the provisions of the Tender Document, the Act, and the Constitution.
125. It is his case that the 2nd Interested Party having been declared the successful tenderer, and the 1st Interested Party having issued Notification to award the contract to the 1st Interested Party and notified all the other tenderers who were not successful, and the 2nd Interested Party having accepted, the 1st and 2nd Interested Parties proceeded to lawfully execute the contract in total compliance with section 87 of the Public Procurement and  Asset Disposal Act, 2015, (The Act) and Rule 82 of the Public Procurement and Asset Disposal Regulations, 2020 (Regulations) and in total compliance with the provisions of the Constitution, the Public Procurement and Asset Disposal Act, as well as the Regulations thereto.
126. It is his evidence that at the time the contract was signed on 25th February, 2024, there were no stay orders in place either from this court, the Respondent or any other court that stopped the execution of the contract.
127. With regards to the prayers and/ or reliefs of Certiorari, Prohibition and Mandamus sought in the amended statement at paragraphs 10, 11, 12, 13, 14 and 15, and the ex parte applicant has not laid any factual or legal basis upon which they should be granted.
128. It argues that the whole process as undertaken by the Respondent from the start to the time the contract was signed was done in total compliance with the law, and in particular, the whole process was and remains fair, equitable, transparent, competitive and cost effective.
129. The stand still period of 14 days is more applicable when a party wishes to challenge the decision of the procuring entity at the Public Procurement Administrative Review Board (Respondent herein), and not with regards to challenging the decision of the Respondent to the High Court through Judicial Review proceedings or even when Appealing to the court of Appeal as alleged by the ex parte Applicant.
130. It is its case that according to section 171 (2) of the Act, a preferred Appeal against the decision of the Respondent does not act as stay or should delay the procurement process as provided for under the Act or the Regulations thereto.
131. He argues that the Ex-Parte Applicant’s insistence on standstill period at every stage of the process after a decision has been made or Judgment rendered is therefore unfounded in law, is tantamount to requesting for preferential treatment which is actually against Articles 10 (2), 227 (1) of the Constitution.
132. It is its case that according to section 175 (1) of the Act, the Ex-Parte Applicant had 14 days within which to challenge the decision of the Respondent rendered on 21st February, 2024, and it did so without any restraint from any of the parties herein on 4th March, 2024.
133. He believes that the whole tendering process was subjected to a fair, equitable, transparent and cost-effective process in accordance with the law, where the 2nd Interested Party emerged as successful tenderer and/ or Party. The averments that it was an unfair process and therefore should have been procured through direct procurement are not factual, untrue and without any legal basis.
134. According to him, the contract executed by the 1st and 2nd Interested Parties was legally and validly entered into and this court should sustain it. No procedure, process or law was violated at the time it was signed and there was need to execute the contract on time given the general public importance to the matter.
Analysis and determination
Issues:
1. Jurisdiction.
2. Illegally obtained documents.
3. Merit analysis.
4. Whether the Amended Statutory Statement can be admitted out of time.
5. Failure to amend the Notice of Motion.
6. Failure to paginate tender documents.
7. The effect of signing a contract on 25th February 2024.
8. Is the applicant entitled to the reliefs sought.
Jurisdiction.
135. In the Owners of MV Lilian s v Caltex Oil K (1989) it was held.
“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, it would have no basis for continuation of proceedings pending evidence. It should down its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”
136. Upon perusal of the application, the statutory statements, the affidavits and the rival submissions and I am satisfied that the application is properly before this court and that the same is not an appeal in disguise as alleged by the Respondents and the interested parties. It is clear to this court that the application seeks to challenge the decision-making process.
137. During the process of developing the issues for determination this court was further persuaded that the application is indeed one that raises and addresses issue around the legality, irregularity, procedural improprieties and questions of the fair administrative action within the fair trading action Act, the Public Procurement and Asset Disposal Act, 2015 and Regulation 203(2)(c)(i) of the Public Procurement and Asset Disposal Regulations, 2020. This court has jurisdiction under Article 165 of the Constitution and I so hold.
Illegally obtained evidence:
138. Section 67 (1) of the Public Procurement and Asset Disposal Act 2015 provides for confidential information that should not be disclosed by a procuring entity, employee or agent of the procuring entity or member of the Board, Commission or Committee of the procuring entity.
139. Disclosure of confidential information is only allowed where the circumstances listed in Section 67 (3) of the Public Procurement and Asset Disposal Act 2015 apply. But even in such a scenario, Section 67 (4) of the Public Procurement and Asset Disposal Act 2015 limits the disclosure to a person seeking a review under Part XV of the said Act to the summary referred to in Section 68 (2) of the Public Procurement and Asset Disposal Act 2015, to wit, a summary of the proceedings of the opening of tenders, proposal or quotations, including the evaluation criteria used.
140. The Applicant is not entitled to a disclosure of the contents of another bidder’s bid and the Applicant has not explained to this court how it got information regarding the bids submitted by other bidders.
141. Section 67 (5) of the Public Procurement and Asset Disposal Act 2015 provides that any person who contravenes the provisions of Section 67 in general commits an offence as stipulated in Section 176 (1) (f) of the said Act.
142. Section 176 (1) (f) of the Public Procurement and Asset Disposal Act 2015 provides that a person shall not divulge confidential information under Section 67.
143. Section 176 (4) of the Public Procurement and Asset Disposal Act 2015 is also relevant. It provides as follows:
“(4) If a person or an employee or agent of a person contravenes the provisions of this Act, the following shall apply—
(a) The person shall be disqualified from entering into a contract for the procurement; or
(b) if a contract has already been entered into with the person, the contract shall be voidable at the option of the procuring entity.”
144. Article 50 (4) of the Constitution provides that "evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights shall be excluded if the admission of that evidence would render the trial unfair, or would otherwise be detrimental to the administration of justice."
145. Section 80 of the Evidence Act provides that, (1) "Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies. (2) Any officer who by the ordinary course of official duty is authorized to deliver copies of public documents shall be deemed to have the custody of such documents within the meaning of this section."
146. The object and purpose of The Access to Information Act as set out in Section 3 is to: (a) give effect to the right of access to information by citizens as provided under Article 35 of the Constitution; (b) provide a framework for public entities and private bodies to proactively disclose information that they hold and to provide information on request in line with the constitutional principles; (c) provide a framework to facilitate access to information held by private bodies in compliance with any right protected by the Constitution and any other law; (d) promote routine and systematic information disclosure by public entities and private bodies on constitutional principles relating to accountability, transparency and public participation and access to information.
147. Section 8 of the Act, provides the procedure which must be followed in the event there is a need for access information being (1) An application to access information shall be made in writing in English or Kiswahili and the applicant shall provide details and sufficient particulars for the public officer or any other official to understand what information is being requested. Section 14 of the Act creates room for review of decisions by the Commission.
148. In The Supreme Court in Petition-13-18-of-2020-Kenya-Railways- Corporation-vs-Okiya-Omtatah-5-Others the court made the following findings,
[77] "In settling the question whether the learned Judges erred in expunging documents in support of the petitions filed by the 1st, 2nd and 3rd Respondents at the High Court The 1st and 2nd Respondents, in their cross-appeal, fault the superior courts' decision to expunge the documents annexed to the affidavits of Okiya Omtatah and Apollo Mboya in support of the petitions. The expunged documents comprised various correspondence between: officers of government institutions and Exim Bank of China; Ministry of Transport and CRBC; CRBC and the then Prime Minister's office; the Embassy of the People's Republic of China and Ministry of Transport; the Office of the then Deputy Prime Minister and the Ambassador, Embassy of the People's Republic of China; the Attorney General's Office and the Ministry of Transport; KRC and Public Procurement and Oversight Authority; KRC and CRBC; the Ministry of Transport and KRC; Public Procurement and Oversight Authority and the Attorney General's office; and between the Office of the Deputy Petition No. 13 & 18 (E019) of 2020 26 President and the Attorney General's Office. Apart from the correspondence, the additional documents expunged were Memorandum of Understanding between Ministry of Transport and CRBC; the feasibility study relating to the project; the commercial contracts between the KRC and CRBC for the construction of the railway and for supply and installation of facilities, locomotives and rolling stock; requests for, and legal advice from the Attorney General and the Solicitor General on the contracts and the SGR project and Cabinet Memorandum.
[78] In expunging the documents, the High Court found that the public servants who provided the expunged documents to the 1st, 2nd and 3rd respondents did not fit the legal definition of whistle blowers under Article 33 of the United Nations Convention Against Corruption. This provision requires such persons to make reports in good faith and on reasonable grounds to competent authorities any facts of corrupt conduct. Secondly, it found the public servants who provided the documents to have breached the Public Officer Ethics Act, 2003 as the documents were confidential in nature. Further, that the documents were inadmissible under the Evidence Act and that admitting stolen or irregularly obtained documents infringes on the appellant's rights under Article 31 of the Constitution. The High Court was of the position that the 1st, 2nd and 3rd respondents ought to have properly compelled the Government to provide the documents under Article 35 of the Constitution. This position was affirmed by the Court of Appeal which added that admitting such documents would be detrimental to the administration of justice and against the principle underlying Article 50(4) of the Constitution.
[79] The question now before us is whether the superior courts below were correct in expunging the documents relied on by the 1st, 2nd and 3rd respondents in support of their petitions at the High Court. We note from the pleadings filed at the High Court that the 1st, 2nd and 3rd respondents did not disclose their source for the documents. They averred that exposing the source or identity of persons who availed the documents would silence whistle blowers who act in public interest and good faith. They instead asked the court to admit the documents which they believed would give a candid exposition of the issues in dispute and enable the court to determine whether the procurement was lawful. Petition No. 13 & 18 (E019) of 2020 27
[80] The Evidence Act Cap. 80 Laws of Kenya applies to all proceedings, including constitutional petitions save for the exceptions set out therein. Section 2 thereof, provides that: Application. (1) This Act shall apply to all judicial proceedings in or before any court other than a Kadhi's court, but not to proceedings before an arbitrator. (2) Subject to the provisions of any other Act or of any rules of court, this Act shall apply to affidavits presented to any court.
[81] The Evidence Act provides for admissibility of evidence with section 80 setting out the manner in which public documents may be produced in court. It states: Certified copies of public documents. (1) Every public officer having the custody of a public document which any person has a right to inspect shall give that person, on demand, a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies. (2) Any officer who by the ordinary course of official duty is authorized to deliver copies of public documents shall be deemed to have the custody of such documents within the meaning of this section. (82] This procedure ensures the preservation of the authenticity and integrity of the public documents filed and produced in court. Further, section 81 of the Evidence Act allows the production of certified copies of documents in proof of the contents of the documents or parts of the documents of which they purport to be copies. [83] From the foregoing provisions, public documents can only be produced in court as evidence through the procedure set out above. The documents having been adduced in evidence without adhering to these rather straightforward provisions, were thereby out rightly rendered inadmissible."
149. Article 35 of the Constitution provides for the right to access information held by the State, including that held by public bodies. The Access to Information Act No. 31 of 2016 was enacted to give effect to Article 35 and sets out the procedure to be followed when requesting information including on the mandate of the Commission on the Administrative Justice. Pursuant to this provision, citizens should be able to access the information by first, requesting for the information from the relevant State agency.
150. In the instant case, the Applicant has failed to explain the source of the documents under reference. This leads the court to conclude that the documents in reference where not procured or secured or obtained within the provisions of Article 50 of the Constitution and Section 35 of the Access to information part.
151. I am bound by the findings of the Supreme Court judgment in ordering that all the confidential documents that the Applicant has produced contrary to Section 68 (2) of the Public Procurement and Asset Disposal Act 2025 to wit a summary of the proceedings of the opening of tenders, proposal or quotations, including the evaluation criteria used are hereby expunged.
Whether the Amended Statutory Statement can be admitted out of time:
152. The Applicant was directed by this Court in the ruling delivered on 5th April 2024 to amend its statutory statement and file and serve the same and any further affidavit by midnight on 5th April 2024. The Applicant did not comply with the said timelines imposed by the Court. This court has in exercise of its jurisdiction allowed the application under its powers as conferred under Article 159 of the Constitution.
153. The Time for filing and service of the Amended Statement and Further Affidavit is hereby enlarged and the Amended Statement and Further Affidavit filed on 6th April, 2024 are deemed to have been filed within time.
154. Given that the Respondent and the interested parties have reacted to the Amended Statutory Statement I find that they will suffer no prejudice if I allow the late filed amended statutory statement.
Failure to amend the Notice of Motion.
155. In Republic v Commissioner of Lands & another Interested Party Masai Villas Limited Ex-Parte Jimmy Mutinda [2013] eKLR held that a new prayer can be introduced in a substantive notice of motion, even where leave was originally not granted to seek relief in terms of the new reliefs to be introduced by a proposed amendment. The court further held that:
“The application for leave to amend is accompanied by a statement and affidavits verifying the facts relied upon. The leave is granted on the basis of the contents of the statement and affidavits. When a Court allows a statement to be amended, it follows that it has granted leave for the commencement of judicial review proceedings in the terms of the amended statement.  As such, if a relief sought in the statutory statement is amended, then the substantive notice of motion should be amended to take care of the amended relief in the statement.”
156. In the case of Republic v Betting Control and Licensing Board & 3 others; Ex parte: Standard Global East Africa Limited [2021] eKLR held that
“if a relief sought in the statutory statement is amended, then the substantive notice of motion will also require to be amended as well. This Court therefore has power and discretion to allow an amendment of a substantive Notice of Motion in judicial review proceedings”.
157. In the instant suit the applicant made an application for leave to amend the statutory statement. I have looked at the amended statutory statement and a have looked at the amend amendments that have been introduced by the applicant. The state amendments are seeking leave of the court. To issue certain partners. The non-accredited otherwise. The best that that this court can do is to grant the applicant leave to institute the judicial review proceedings.
158. The applicant did not move the court by way of application either written or oral, seeking any substantive reliefs that would have justified the granting substantive orders in line with the amended statutory statement. Parties are bound by their pleadings. As such what is before this honorable Court for determination is the originally filed substantive Notice of Motion.
Failure to paginate tender documents.
159. In PPARB Review Application No. 129 of 2019 Island Homes Developers vs. Kenya Ports Authority & 2 Others which was upheld by Justice Ogola in Island Homes Developers Limited vs. Public Procurement Administration Review Board, Kenya Ports Authority & 2 Others (2020) eKLR, the Board stated the purpose and significance of serialization and pagination of tenders to be as follows:
“Pagination of a bid document avoids the bid document from being tampered with in any way by any person or entity. It protects the sanctity of a bid document by ensuring that the bidders are evaluated on the basis of the documents they submitted by the tender closing date and that no document is inserted or removed in favour of a non-compliant bidder to the detriment of other bidders who choose to comply with the requirements of a procuring entity.”
160. It is not in dispute that pagination/Serialization of bid documents was listed as a mandatory requirement in the tender document. The Tender Document provided at Clause 7 of the Invitation to Tender at page 3 of the Tender Document as follows:
“7. Completed serialized/paginated Bidding documents shall be submitted accompanied with a signed declaration of the number of pages...”
161. The mandatory Requirement No.1 of Clause A) Preliminary Examination of Section III –Evaluation and Qualification Criteria at page 38 of the Tender Document provided as follows:
“1. Tender documents must be paginated/serialized. All bidders are required to submit their documents paginated in a continuous ascending order from the first page to the last in this format (i. e 1, 2, 3...........n where n is the last page)
162. There was a caution “NOTE: Failure to comply with Mandatory requirements will lead to disqualification. Only bidders who are successful at this stage will proceed to the next stage of evaluation.”
163. It is not in dispute that the Applicant did not paginate page 89 of its bid document in accordance with the aforesaid mandatory tender requirement.
164. The Applicant claims that the Procuring Entity ought to have waived its omission to paginate/serialize its bid document and that this omission be treated as a minor deviation as it did not go to the substance of the tender.
165. Section 79 (2) and (3) of the Public Procurement and Asset Disposal Act 2015 provide as follows with respect to minor deviations:
“(2) A responsive tender shall not be affected by-
(c) Minor deviations that do not materially depart from the requirements set out in the tender documents; or
(d)  Errors or oversights that can be corrected without affecting the substance of the tender;
(3) A deviation described in subsection (2) (a)shall-
(a) be quantified to the extent possible; and
(b) be taken into account in the evaluation and comparison of tenders.”
166. The High Court in Miscellaneous Civil Application 85 of 2018 Republic v Public Procurement Administrative Review Board Ex parte Meru University of Science & Technology; M/S Aaki Consultants Architects and Urban Designers (Interested Party) [2019] eKLR, considered what amounts to “a minor deviation” and determined as follows:
“The term ‘acceptable tender’ means any tender which, in all respects, complies with the specifications and conditions of tender as set out in the tender documents. A tender may be regarded as acceptable, even if it contains minor deviations that do not materially depart from the characteristics, terms, conditions and other requirements set out in the tender documents or if it contains errors or oversights that can be corrected without touching on the substance of the tender. Any such deviation shall be quantified to the extent possible, and appropriately taken account of in the evaluation of tenders. A tender shall be rejected if it is not acceptable....
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 of which would defeat the underlying purpose of supplying information to bidders for the generation 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.”
167. Clause 2.5.1 of the Standard Tender Documents for the procurement of Goods provides as follows:
“A prospective tenderer requiring any clarification of the tender Document may notify the Procuring Entity in writing or by post at the entity’s address indicated in the Invitation to Tender.  The Procuring entity will respond in writing to any request for clarification of the tender documents, which it receives not later than seven (7) days prior to the deadline for the submission of tenders, prescribed by the procuring entity.  Written copies of the Procuring entities response (including an explanation of the query but without identifying the source of inquiry) will be sent to all prospective tenderers that have received the tender Document.”
168. Clause 2.5.2 of the Standard Tender Documents for the procurement of Goods provides as follows:
“The procuring entity shall reply to any clarification sought by the tenderer within 3 days of receiving the request to enable the tenderer to make timely submission of its tender.”
169. From the Verifying Affidavit, at paragraph 24 through to 28 it is clear that The Applicant reached out to the Respondent for debriefing. It got a response and actually attended debriefing. It referred to the outcome as mechanical and formalistic examination.
170. This court is satisfied with the procedure that was followed. It accords with the Fair administrative action right. This court cannot interfere with the deliberations that took place at the debriefing session, whether or not the applicant found out that its tender was not evaluated, the contents and the quality of the deliberations and evaluation, the outcomes, the merits of the selection process Respondents decision that was arrived at since it involves the discretionary power of the Respondent.
171. To do so would invite for a merit analysis which this case doesn’t qualify for.
172. As regards the importance of serialization of a bid document, the Court in Judicial Review Miscellaneous Application No. 312 of 2018, Republic v Public Procurement Administrative Review Board; Nairobi City Water & Sewerage Company Limited & another (Interested Parties) Ex parte Fourway Construction Company Limited [2019] eKLR held as follows: -
“The ordinary meaning of serialization is to publish or present something in the form of a serial. The Concise Oxford English Dictionary defines a serial as “consisting of, forming part of, or taking place in a series” and further defines “to serialize” as “to arrange in a series”. A “series” is on the other hand defined as “a number of similar or related things coming one after another”. Therefore, the ordinary meaning and interpretation of serialization of pages is that each page must be arranged and presented in a manner that it is evident that a page is coming after another page.”
173. Section 74(1) (I) of the Public Procurement and Asset Disposal Act 2015 provides as follows:
“(1) (i) The accounting officer shall ensure the preparation of an invitation to tender that sets out the following requirement of serialization of pages by the bidder for each bid submitted”
174. Regulation 74(1) (b) of the Public Procurement and Asset Disposal Regulations 2020 provides that:
“(1). Pursuant to Section 80 of the Act, the evaluation Committee shall first conduct a preliminary evaluation to determine whether-
(a) A tenderer complies with all the eligibility requirements provided for under section 55 of the Act;
(b) the tender has been submitted in the required format and serialized in accordance with section 74(1)(i) of the Act.”
175. Regulation 75 (1) of the Public Procurement and Asset Disposal Regulations 2020 provides that:
“(1) A procuring entity shall reject all tenders, which are not in conformity to the requirements of section 79 of the Act and regulation 74 of these Regulations.”
176. In the case of Judicial Review Miscellaneous Application No. 312 of 2018, Republic v Public Procurement Administrative Review Board; Nairobi City Water & Sewerage Company Limited & another (Interested Parties) Ex parte Fourway Construction Company Limited [2019] eKLR further held as follows:
“Serialization of the bid document is also a requirement set by law in relation to the contents of tender documents under Section 74 (1) (i) of the Public Procurement and Asset Disposal Act (hereinafter “the Act”). The said section reads as follows: -
’74 (1) The accounting officer shall ensure the preparation of an invitation to tender that sets out the following—’
... requirement of serialization of pages by the bidder for each bid submitted Two key principles and objectives come to play in the requirement for serialization of every page of a bid document. The first is that following laid down rules of procedure is an important aspect of fairness, non-discrimination and equal treatment... Secondly, compliance with the requirement of serialization of every page of a bid document is crucial for good governance, transparency, and accountability. Non-conformity with this requirement will be open to abuse by procuring entities and bidders, who can deliberately plant documents, and use the opportunity for correction to advance their own interests.”
177. The Ex-parte Applicant failed and/ or neglected to comply with the instructions that were clear and mandatory, hence, the 1st Interested party exercised its’ discretion and disqualified the Ex-parte Applicant in accordance with the law and this court cannot interfere with the decision.
The effect of signing a contract on 25th February 2024.
178. According to Affidavit of Dr. Andrew Mulwa for the 2nd Interested Party a contract was entered into on 25th February, 2024.I have looked at the contract.
179. The Applicant does not deny that the contract has already been executed. I confirm this from the amended statement wherein the applicant is seeking inter alia the following reliefs:
“The Ex Parte Applicant be granted leave to apply for an Order of Certiorari to remove to the High Court the Contract for Supply of ARVs Medicines I (Tender No. GF ATM HIV NFM-2023/2024 OIT-010) dated 25th February, 2024 for the purposes of being quashed.”
180. In the substantive Notice of motion, the applicant sought orders that:
1) An Order of Certiorari to remove to the High Court the proceedings and the decision of the Respondent dated 21st February, 2024 for the purposes of being quashed.
2) An order that the Request for Review dated 30th January, 2024 and the decision thereof dated 21st February, 2024 be remitted with directions to the Respondent for reconsideration.
181. This court cannot issue an order that has not been sought in the Application. The Applicant’s proposed amendments to its statutory statement, were primarily aimed at introducing new prayers to the Application.
182. The relief that is directed at the contract as crafted by the ex-parte Applicant is seeking leave to apply for an order of Certiorari to remove to the High Court the Contract for Supply of ARVs Medicines 1 (Tender No. GF ATM HIV NFM-2023/2024 OIT-010) dated 25th February, 2024 for the purpose of being quashed. The Applicant did not seek leave to amend the Application.
183. Section 167 (4) of the Public Procurement and Asset Disposal Act provides that 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 62 of this Act; and (c) where a contract is signed in accordance with Section 135 of this Act.
184. Section 135 of The PPDA Act provides for the creation of procurement contracts:
(1). The existence of a contract shall be confirmed through the signature of a contract document incorporating all agreements between the parties and such contract shall be signed by the accounting officer or an officer authorized in writing by the accounting officer of the procuring entity and the successful tenderer.
(2). An accounting officer of a procuring entity shall enter into a written contract with the person submitting the successful tender based on the tender documents and any clarifications that emanate from the procurement proceedings.
(3). The written contract shall be entered into within the period specified in the notification but not before fourteen days have elapsed following the giving of that notification provided that a contract shall be signed within the tender validity period.
185. The decision of the Respondent was entered into on 21st February, 2024.The contract for the Supply of ARVs Medicines 1 (Tender No. GF ATM HIV NFM-2023/2024 OIT-010) herein was entered into on 25th February, 2024.
186. Section 135 (3) of The PPDA Act provides that the written contract shall be entered into within the period specified in the notification but not before fourteen days have elapsed following the giving of that notification provided that a contract shall be signed within the tender validity period.
187. In the case of Francis Bahikirwe Muntu and others v Kyambogo University, High Court, Kampala,Miscellaneous Application Number 643 of 2005 (UR), it was decided that:
Illegality is 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 a law or its principles are instances of illegality…
Procedural impropriety is when there is 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. (Al-Mehdawi v Secretary of State for the Home Department [1990] AC 876).”
188. Article 47 of the Constitution also makes it clear that;
“(1) every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair;
189. It is my finding that the Contract that was entered into on 25th February, 2024 is contrary to Section 135 (3) of The PPDA Act which provides that the written contract shall be entered into within the period specified in the notification but not before fourteen days have elapsed following the giving of that notification provided that a contract shall be signed within the tender validity period.
190. In Republic v Public Procurement Administrative Review Board; Ex parte: Madison General Insurance Kenya Limited; Vice Chancellor, Kenyatta University & Another (Interested Parties) (2022) eKLR, where Justice Ngaah held as follows:
“It could be that indeed the contract was invalid, but in my humble view, considering the provisions of Section 167 (4) (c), once a contract has been signed, the appropriate forum before which the question of validity of a signed contract can be determined is this Honourable Court.
It does not necessarily follow that an aggrieved party is left without a remedy merely because a contract is signed. Grievances arising out of a signed contract will certainly be addressed but not before the Public Procurement Administrative Review Board. They will be addressed before the court which only has the jurisdiction to determine such disputes related to the alleged grievances.”
191. The contract for the Supply of ARVs Medicines 1 (Tender No. GF ATM HIV NFM-2023/2024 OIT-010) that was entered into on 25th February, 2024 falls within the ground of illegality and procedural impropriety as enunciated in the case of Francis Bahikirwe Muntu and others v Kyambogo University, High Court, Kampala,Miscellaneous Application Number 643 of 2005 (UR) and the same must be subjected to the Judicial Review scrutiny.
192. A contract that is not within the framework of Section 135 (3) of The PPDA Act is unlawful. The Public Procurement Administrative Review Board does not have the jurisdiction to deal with such a legal issue. This court has the Jurisdiction under Article 165 of the Constitution to deal with the lapse. This court cannot countenance illegalities since I am under a duty under Article 10 and 227 of the Constitution to promote and protect the rule of law which I hereby do.
193. In doing so, I am guided by the High Court decision in the case of Republic v Public Procurement Administrative Review Board Ex Parte Biomed Healthcare Limited; Accounting Officer, Deparment of Health Services, County Government of Uasin Gishu, & 2 others (Interested Parties) [2021] eKLR where the court held that,
“42. It is notable in this regard that in addition to the standstill period of fourteen days before a contract can be concluded under Section 135 of the Public Procurement and Assets Disposal Act of 2015 that is triggered by the date of notification of award, there are standstill periods provided for in Section 168 of the Act, which provides for suspension of procurement proceedings once a Request for Review is filed with the Respondent, and  in section 175(1) of the Act which provides as follows once the Respondent renders its decision on a Request for Review:
(1) 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.
43. Similar provisions are provided with respect to the decisions made by the High Court and Court of Appeal in section 175 (4) and (5). Therefore, a decision by the Respondent is not final until fourteen days have lapsed, and the reasons for the standstill periods is to allow for challenges to the procuring entity’s and Respondent’s and Courts’ decisions before an award is concluded, and for an effective remedy to be available an aggrieved participant in the event that the procurement process is irregular and unlawful. The entering into a contract on 28th April, 2021 by the Interested Parties before the lapse of the standstill period in section 175(1) was therefore manifestly illegal, and this Court has the powers to declare it as such.
44. Section 11 (1) (a) of the Fair Administrative Act in this respect empowers this Court to declare the rights of the parties in respect of any matter to which the administrative action relates, while section 11(e) and (h) of the said Act permits this court to remit a matter back to the decision maker for reconsideration, and the Respondent can therefore be compelled to determine the ex parte Applicant’s Request for Review de novo and any other matter referred to it by this Court. The inherent powers of this Court also has inherent powers to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court are also expressly saved by section 3A of the Civil Procedure Act and Article 159 of the Constitution.
45. In addition, while section 167(4) specifically ousts the jurisdiction of the Respondent where a contract is signed in accordance with section 135 of the Act, the Respondent is still under a duty to interrogate the necessary pre-conditions under the section as to whether the contract in issue is validly signed in accordance with the provisions of the Public Procurement and Assets Disposal Act of 2015.
46. Notwithstanding the availability of this window to the Respondent, it is my finding that a declaration by this Court will be necessary, not only to provide the ex parte Applicant with an effective remedy in the circumstances, but to clarify the legal position on the signed contract by the Interested Parties and the Respondents’ duty to rehear the ex parte Applicant’s Request for Review.
47.I am in this regard also persuaded by the holding by the European Court of Justice in Alcatel Austria AG and Others vs Bundesministerium für Wissenschaft und Verkehr, Case C-81/98. that provisions relating to the application of review procedures to the award of public supply and public works contracts must be interpreted as meaning that that the contracting authority's decision prior to the conclusion of the contract, is in all cases open to review in a procedure whereby an applicant may have that decision set aside if the relevant conditions are met, notwithstanding the possibility, once the contract has been concluded, of obtaining an award of damages.”
194. In the above-mentioned case, the court declared a contract that was signed before waiting for fourteen days as provided by law to amount to an illegality and the contract being null and void.
195. Turning back to the instant case, the fourteen days stand still period under Section 135 (3) of The PPDA Act is a very critical phase in the procurement cycle. It accords with under Article 47 of the Constitution in that it presents a right and a window to the party who did not win the tender to seek legal redress.
196. That right can only be taken away under the tight threshold of Article 24 of the Constitution. The Respondent and the interested parties did not advance any justification that would have persuaded this court to accept the limitation of the Applicant’s right under Section 135 (3) of The PPDA Act and I so hold.
Order:
1. The prayer that an Order of Certiorari to remove to the High Court the proceedings and the decision of the Respondent dated 21st February, 2024 for the purposes of being quashed is disallowed.
2. A Declaration be and is hereby issued declaring the contract signed on the 25th February, 2024 illegal, null and void.
3. An order is hereby issued that the decision dated 21st February, 2024 be remitted with limited directions to the Respondent and the Interested Parties to ensure that there is compliance with Section 135 (3) of The PPDA Act.
4. Costs to the Applicant.