1.The application that is before the court for determination is the one dated 5th August 2024 wherein the applicant is seeking orders for:
1) Judicial review Order of Certiorari to remove to the High Court the Respondent’s proceedings in the Request for Review No. 58/2024 and the decision thereof dated 19th July, 2024 for the purposes of being quashed.
2) Judicial review Order of Certiorari to remove to the High Court the 1st and 2nd Interested Parties’ re-evaluation report, professional opinion, award decision and the request for best and final offer (BAFO) referenced ELD/MTRH/SSE/7/2/VOL.X1/2016 and dated 29th July, 2024 for the purposes of being quashed.
3) Judicial review Order of Prohibition to prohibit the 1st and 2nd Interested Parties from evaluating, considering the evaluation report and the professional opinion thereof and awarding any best and final offer (BAFO) received pursuant to the 1st Interested Party’s request for best and final offer (BAFO) referenced ELD/MTRH/SSE/7/2/VOL.X1/2016 and dated 29th July, 2024.
4) Judicial review Order of Mandamus to compel the 1st Interested Party to terminate or cancel the request for best and final offer (BAFO) proceedings commenced on 29th July, 2024.
5) Judicial review Order of Mandamus to compel the 1st Interested Party to prepare and to execute the Contract for Provision of Medical Insurance Cover (Tender No. MTRH/T/86/2023-2024) in line with the award decision dated 14th June, 2024.
6) Cost of the suit.
The Applicants case;
2. The application is predicated on the statutory statement, the Verifying Affidavit dated 1st August, 2024 and the Further Affidavit sworn on 23rd August, 2024.
3. It is the Applicant’s case that on 5th March, 2024 the 1st Interested Party advertised the Tender Document for Provision of Medical Insurance Cover (Tender No. MTRH/T/86/2023-2024).
4. In the Tender Document, the 1st Interested Party set out the technical evaluation criteria for purposes of the implementation of the proposed health insurance policy.
5. The Ex Parte Applicant submitted a Tender in response to the said Tender on 28thMarch, 2024. Subsequently on 14th June, 2022 the 1st Interested Party notified the Ex Parte Applicant of his intention to award its Tender.
6. On 28th June, 2024 the 3rd Interested Party filed Request for Review being No. 58 of 2024 which was countered by the 1st Interested Party and the Ex Parte Applicant through Responses and preliminary objections to the Request for Review prompting the 3rd Interested Party to file a Further Affidavit.
7. It is the Applicant’s case that from the 1st Interested Party’s Response to the Request for Review, it was evidently clear that the 3rd Interested Party’s Tender document did not meet the 70 marks threshold in the technical evaluation stage to proceed to financial evaluation.
8. It is further its case that in addition to its failure to meet the technical evaluation criteria, the 3rd Interested Party’s Request for Review was fatally incompetent and the Respondent ought not to have been entertained as the Affidavits/Statements thereof misrepresented that John Kimani was the Chief Executive Officer and Principal Officer as at 26th June, 2024 and 12th July, 2024.
9. Ultimately, on 19th July, 2024 the Respondent delivered its decision in the matter and nullified and set aside the 1st Interested Party’s notification of intention to award the Ex Parte Applicant’s Tender and directed him to re-admit the 3rd Interested Party’s Tender and re-evaluate it at the technical evaluation stage.
10. It is its case that the Respondent’s decision making process was tainted by its:
(a) failure to take into account that the 3rd Interested Party’s Authority to Sue dated 25th June, 2024 was not executed by either two authorised signatories or a director in the presence of a witness who attests the signature;
(b) failure to take into account the 3rd Interested Party’s misrepresentation that John Kimani was its Principal Officer as at 26th June, 2024 and 12th July, 2024;
(c) failure to take into account the fact that the 3rd Interested Party did not swear an affidavit to disprove the Ex Parte Applicant’s averments in the Affidavit sworn on 15th July, 2024;
(d) failure to comply with Regulation 218 of the Public Procurement and Asset Disposal Regulations, 2020 which prescribed a mandatory derogation from the rules of evidence in the hearing of a request for review;
(e) unfair departed from its position in the case of PPARB No. 8 of 2023 - Toddy Civil Engineering Company Limited v Chief Executive Officer, Lake Victoria North Water Works Development Agency & Another that a Statement executed contrary to Section 37(2) of the Companies Act, 2016 and Regulation 203(2)(b) of the Public Procurement and Asset Disposal Regulations, 2020 is fatally defective;
(f) re-evaluation of the 3rd Interested Party’s Tender in excess of its authority under Section 28(1)(a) and 173 of the Public Procurement and Asset Disposal Act, 2015;
(g) failure to defer the re-evaluation of the 3rd Interested Party’s Tender to the 1st and 2nd Interested Parties’ expert Tender Committee members assisted by external technical experts;
(h) taking into account consideration pagination and power of attorney of the 3rd Interested Party that were irrelevant in the technical evaluation stage;
(i) amendment of the 1st Interested Party’s Technical Evaluation Criteria in the Tender Document without lawful authority; and
(j) failure to give the Ex Parte Applicant notice and audience on the issues that it noted in the 3rd Interested Party’s original Tender and in the 1ts Interested Party’s Evaluation Report with respect to evaluation criteria 1, 2 and 11 of the Tender Document.
The foregoing has precipitated the filing of the instant suit.
11. The Applicant argues that by virtue of Section 175(1) of the Public Procurement and Asset Disposal Act, 2015 and Section 57(a) of the Interpretation and General Provisions Act the Respondent’s decision is in abeyance with effect from 20thJuly, 2024 to 2nd August, 2024 both days inclusive.
12. It is also its case that the Respondent’s decision became final and binding with effect from 3rd August, 2024 since no application for judicial review was filed by 2nd August, 2024.
13. Further that by virtue of the 1st Interested Party’s request to submit the Ex Parte Applicant’s best and final offer (BAFO) received on 30th July, 2024, it argues that the 1st and 2nd Interested Parties implemented the Respondent’s decision by re-admitting and re-evaluating the 3rd Interested Party’s Tender.
14. According to the Applicant the 1st Interested Party’s conduct is in breach of Section 44(1) of the Public Procurement and Asset Disposal Act, 2015 which required it to ensure compliance with the Act and further that its request for the best and final offers(BAFOs) is an unfair administrative action which is amenable to judicial review.
15. In advancing the argument for the grant of the orders of judicial review it invokes Section 28(1)(a) and 167(1) of the Public Procurement and Asset Disposal Act, 2015 and Regulation 203(2)(c) of the Public Procurement and Asset Disposal Regulations, 2020 from where the mandate of the Respondent to review, hear and determine tendering and asset disposal disputes flows from.
16. Reliance is placed in the case of Per 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, where it was observed that “… the decision–maker must understand correctly the law that regulated his decision–making power and must give effect to it…”
17. The Applicant also refers to Halsbury’s Laws of England, 4thEdition para. 77 page 170 on where it is posited that:
“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.
18. It is the Applicant’s case that The Respondent understood that it had no jurisdiction to review, hear and determine the dispute whether the marks allocated by the 1st Interested Party added up to 100, the dispute whether John Kimani’s Bachelor’s Degree in Computer Science entails mathematics and statistics and whether it is equivalent to Commerce Insurance Option/Economics/Business/Statistics/Actuarial Science, the dispute whether marks should be pro-rated, the dispute as to the meaning of similar services requirements and the dispute whether the power of attorney was to be registered as the same was to be reviewed, heard and determined by either the 1st Interested Party under Section 75(1)(2) and 76 of the Public Procurement and Asset Disposal Act, 2015 and ITT 8, ITT 27.3 and ITT 43.1 of the Tender Document or by the Respondent under 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.
19. The Applicant relies on the case of Republic v Public Procurement Administrative Review Board & Another ex parte Gibb Africa Ltd & Another (2011) eKLR on judicial review orders being of a discretionary nature.
20. Reliance is also placed in the case of Public Procurement Administrative Review Board & 3 others ex parte AAR Insurance Kenya Limited, HCJR/E005/2022 where Ngaah J emphasised that the disqualified tenderers ought to have enquired reasons for their disqualification and not wait until the award has been to seek nullification. This position is said to have been understood by the Respondent as the law as demonstrated in its own decision in the case of Application No. 48 of 2021 - Fahimyasin Company Limited v the Accounting Officer, Kenya Urban Roads Authority & 2 others.
21. Reliance is also placed in the case of Republic v Public Procurement Administrative Review Board & 3 others ex parte AAR Insurance Kenya Limited (supra) where Ngaah J held “As noted, it is the time of the breach that counts and not when the reasons for the alleged breach are given\". This decision it is argued was upheld by the Court of Appeal in the case of Jubilee Health Insurance Limited v Public Procurement Administrative Review Board & 3 others, Civil Appeal No. COACA/E135/2022.
22. Reliance is also placed in the book Administrative Law, 10th edition (Oxford: Oxford University Press:2009), pp 222 – 225, where Wade & Forsyth posit that “all error of law are now reviewable”.
23. According to the Applicant 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.
24. It argues that the Respondent’s decision making process was tainted by illegality which affected its decision as it assumed jurisdiction where the same was barred by the legal doctrines of exhaustion, acquiescence, waiver (abandonment), indolence and laches.
25. It also relies on the case of Speaker of the National Assembly v James Njenga Karume [1992] eKLR where the Court of Appeal emphasised on the need to exhaust procedures for redress that are provided for by the Constitution or an Act of Parliament, that procedure should be strictly followed.
26. The case of Serah Njeri Mwobi v John Kimani Njoroge [2013] eKLR is relied on what the meaning and effect of the doctrine of waiver. Reliance is also place in the case of Banning v Wright (1972) 2 All ER 987 on this issue.
27. The Applicant also refers to the case of Sita Steel Rolling Mills Ltd v Jubilee Insurance Company Ltd [2007] eKLR on instances when a waiver may arise.
28. It is its argument that The Respondent’s decision making process was tainted by illegality which affected its decisions that John Kimani’s Bachelor’s Degree in Computer Science entails mathematics and statistics which is equivalent to Commerce Insurance Option/Economics/Business/Statistics/Actuarial Science and the decision to pro-rate marks were ultra vires Section 60, 70(4) and 75(1) of the Public Procurement and Asset Disposal Act, 2015.
29. The Applicant relies on the case of Council of Civil Service Unions versus Minister for the Civil Service (1985) A.C. 374,410 on the ground of illegality.
30. Reliance is also placed in the case of HCJR/E189/2022 - Republic v Public Procurement Administrative Review Board & 3 others ex parte First Assurance Company Limited where the court held that:
“It follows that by requiring the procuring entity to dispense with a particular requirement, the respondent breached sections 60, 70 and 79 of the Act and, for this very reason, its decision was ultra vires the respondent’s powers under section 173 of the Public Procurement and Asset Disposal Act.”
31. It is its case further that the Respondent’s decision making process was also tainted by procedural impropriety as the Respondent took into account pagination, power of attorney that were irrelevant in the technical evaluation stage in issue. The Respondent is also accused of failing to consider the Ex Parte Applicant’s evidence of misrepresentation of John Kimani as the Chief Executive Officer and the Principal Officer and instead adopted rules of evidence and procedure that was inimical to Regulation 218 of the Public Procurement and Asset Disposal Regulations, 2020.
32. The Applicant further relies on the case of SGS Kenya Limited v Energy Regulatory Commission & 2 others (Petition 2 of 2019) [2020] KESC 64 (KLR) (10 January 2020) (Judgment) where the Supreme Court held that that the PPARB is a specialized body charged with programming and regulatory tasks of the socio-economic, administrative and operational domains. The Court also went ahead to hold that such a body/tribunal should fully take into account any factors of change, in relation to different cases occurring at different times: without being bound by some particular determination of the past.
33. The Applicant also refers to the case of Pastoli v Kabale District Local Government Council & others [2008] 2 EA 303 and Republic v Public Procurement Administrative Review Board & 3 others ex parte AAR Insurance Kenya Limited, HCJR/E005/2022 (supra) on the ground of Procedural impropriety in judicial review.
34. It is the Applicant’s case that the implementation of the Respondent’s decision by the 1st and 2nd Interested Parties is also amenable to review as it was ultra vires Section 175(1) of the Public Procurement and Asset Disposal Act, 2015.
35. The Applicant relies on the of Republic v Public Procurement Administrative Review Board Ex- Parte Transcend Media Group Limited [2017] eKLR where the Court observed as follows;
“once the said proceedings are commenced the binding effect and finality of the decision is thereby suspended so that any contract entered into between the procuring entity and the party in whose favour a tender has been awarded cannot defeat the proceedings merely because such a contract has been entered into.
8. In other words a procuring entity which enters into a contract during the pendency of judicial review proceedings properly commenced does so at the risk that the Court may quash the decision and thereby nullify the contract with the attendant consequences.”
36. The Applicant also relies in the cases of Republic v Public Procurement Administrative Review Board & another Ex - parte Avante International Technology Inc [2013] eKLR Republic v Public Procurement Administrative Review Board & 2 others ex parte Noble Gases International Limited [2013] eKLR to further support the issue of the effect of commencement of judicial review proceedings with the 14 day period provided under the law.
37. The applicant believes that it has demonstrated that the Respondent treated the Ex Parte Applicant unfairly in view of Article 47(1) of the Constitution of Kenya, 2010 and Section 4(1) of the Fair Administrative Action Act, 2015 which entitle it to a fair administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
38. It believes its case falls within the principles as set out In the case of Pastoli v Kabale District Local Government Canal & Others (2008).
39. The applicant argues that the judicial review was necessary and the Ex Parte Applicant is entitled to costs of the suit as provided under Section 27(1) of the Civil Procedure Act which states that, “… costs follow the event”.
40. Reliance is also placed in Kuloba J in Judicial Hints on Civil Procedure, 2nd Ed. (Nairobi: Law Africa, 2011), p. 94.
The Respondent’s Case;
41. According to the Respondent, the applicant is a review of the merits of the decision of the Respondent that is seeking to improperly invoke an appellate jurisdiction of the High Court.
42. Section 173 of the Public Procurement and Disposal Act, 2015 it is argued provides for the powers of the Review Board and it is the Respondent’s case that it acted as expressly authorized under section 173 of the Act in discharge its mandate and had power to do so.
43. The Respondent argues that it indeed had jurisdiction to hear and determine the request for review and reiterates its findings.
44. It argues that the purpose of judicial review is to ensure that a party receives fair treatment in the hands of public bodies.
45. It is its case that it is not the purpose of judicial review to ensure that the public body, after according fair treatment to a party, reaches on a matter which it is authorized by law to decide for itself, a conclusion which is correct in the eyes of the court.
46. The cases of Council of Civil Service Unions vs. Minister For The Civil Service [1984] 3 ALL ER 935 and Grain Bulk Handlers Limited vs. J. B. Maina & CO. LTD & 2 Others [2006] eKLR where the scope of judicial review was summarized.
47. The Respondent also refers to Republic vs. Kenya Revenue Authority Ex parte Yaya Towers Limited [2008] eKLR and Seventh Day Adventist Church (East Africa) Limited v Permanent Secretary, Ministry Of Nairobi Metropolitan Development & another [2014] eKLR on the purpose judicial review proceedings.
48. The Court of Appeal in Kenya Pipeline Company Limited V Hyosung Ebara Company Limited & 2 Others (2012) eKLR is also relied on where the Court drew the boundaries for reviewing the decisions of the Review Board.
49. According to the respondent in order for an applicant to move the Court into giving orders on the ground that a tribunal has committed an error of law, the applicant must demonstrate that there is indeed a mistake that goes to the jurisdiction of the tribunal. Misinterpretation of the law is not sufficient to move a judicial review application.
50. It is the Respondent’s case that in Judicial review the court is only concerned with the fairness of the process under which the impugned decision or action was reached. The Court of Appeal in Municipal Council of Mombasa V Republic & another (2002)eKLR in support of this position.
51. In Republic Vs Kenya Power & Lighting Company Limited & Another [2013] eKLR the learned Judge quoting a decision of the Court of Appeal stated: The Board considering all the arguments of the Applicant and made findings on each of these issues. The Board may have been wrong in its decision but this Court would be usurping the statutory function of the Board were it to substitute its own views for those of the Board.
52. In the matter of Republic v Public Procurement Administrative Review Board & 2 others Exparte Rongo University [2018] eKLR the court stated at paragraph 59 that:-
An administrative functionary that is vested by statute with the power to consider and make a decision is generally best equipped by the variety of its composition, by experience, and its access to sources of relevant information and expertise to make the right decision. The Court is slow to assume a discretion which has by statute been entrusted to another tribunal or functionary.
53. In the instant case, it is the Respondent’s case that The applicant has raised the issue of the decision of the Respondent being ultra vires. It argues that the scope of an ultra vires decision was well elucidated by Justice John M. Mativo (as he then was) in the case of Republic v Cabinet Secretary, Ministry of Agricultures, Livestock & Fisheries; Cabinet Secretary, Ministry of Industry, Trade & Co-operatives (Interested Party) Tanners Association of Kenya(Suing through its Chairman Robert Njoka Ex Parte Applicant [2019] eKLR at paragraph 24 to 28.
54. According to the Respondent the most basic rules of administrative law are first that decision makers may exercise only those powers, which are conferred on them by law and, second, that they may exercise those powers only after compliance with such procedural prerequisites. So long as administrators comply with these two rules, their decisions are safe.
55. It is its case that this fundamental principle generally requires that the exercise of powers of administrators and statutory bodies must strictly comply with the law both substantively and procedurally. Further that the legality of an administrative decision can be judicially challenged on grounds that the administrative decision does not comply with the basic requirements of legality.
56. The Respondent argues that a decision is illegal if it: - (a) contravenes or exceeds the terms of the power which authorizes the making of the decision; (b) pursues an objective other than that for which the power to make the decision was conferred; (c) is not authorized by any power; (d) contravenes or fails to implement a public duty.
57. The Respondent’s case is that the task for the courts in evaluating whether a decision is illegal is essentially one of construing the content and scope of the instrument conferring the duty or power upon the decision-maker. The instrument will normally be a statute. A government Minister is bound to adhere to the law. The courts when exercising this power of construction are enforcing the rule of law, by requiring government functionaries to act within the four corners‘‘ of their powers or duties.
58. They are also acting as guardians of Parliament‘s will, seeking to ensure that the exercise of power is in accordance with the scope and purpose of Parliament‘s enactments. Where discretion is conferred on the decision-maker, the courts also have to determine the scope of that discretion and therefore need to construe the statute purposefully. One can confidently assume that Parliament intends its legislation to be interpreted in a meaningful and purposive way giving effect to the basic objectives of the legislation.
59. According to the Respondent Statutes do not exist in a vacuum. They are located in the context of our contemporary democracy. The rule of law and other fundamental principles of democratic constitutionalism should be presumed to inform the exercise of all official powers unless Parliament expressly excludes them. There may even be some aspects of the rule of law and other democratic fundamentals which Parliament has no power to exclude. The courts should therefore strive to interpret powers in accordance with these principles.
60. It is the Respondent’s argument that what must be borne in mind is that exercise of statutory power has a constitutional underpinning and that the Constitution should be the point of reference for any one exercising statutory power. Thus, exercise of public power must strictly conform to the constitutional dictates of transparency, openness, accountability, fairness and generally, the rule of law. Such rights cannot be narrowly construed. Differently put, every person has a right to an administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
61. It’s the Respondents\' case that the Applicant has not proved that the Respondent exceeded its power and as such this ground must fail.
62. On the issue of Jurisdictional error, it places reliance in the case of Republic vs Attorney General & 4 others ex-parte Diamond Hashim Lalji and Ahmed Hasham Lalji at paragraph 10.
63. On the issue of Wednesbury Unreasonableness the Applicant is said to seek the court’s intervention to annul the impugned decision. Further that as a matter of principle, the test of Wednesbury Unreasonableness has been stated to be that the impugned decision must be objectively so devoid of any plausible justification that no reasonable body of persons could have reached it and that the impugned decision had to be verging on absurdity in order for it to be vitiated. The above mentioned principle it is argued was established in the Australian case of Prasad v Minister for Immigration.
64. To buttress the test above in relation to the impugned decision the Respondent places reliance in the case of Republic v Public Procurement Administrative Review Board & 2 others Ex parte Rongo University [2018] eKLR where the court stated at paragraph 53 to 57.
65. The Respondent’s case is that Ex parte Applicant has not made out a case for issuance of the orders sought and the same should be dismissed with costs.
66. On the issue of costs, The Respondent argues that since section 175(7) of the Public Procurement and Asset Disposal Act bars issuance of costs.
The 1st and 2nd Interested Parties’ case;
67. It is the 1st & 2nd Interested parties case that Section 7(2)(m) of the Fair Administrative Action Act obligates this Honourable Court to review an administrative action or decision if the same violates the legitimate expectations of the person to whom it relates to.
68. The interested parties argue that they legitimately expected the Respondent (PPARB) to consider their submissions which pointed it to the confidential documents submitted under PPADA and give an explanation on its finding that the 3rd Interested Party\'s bid met the mandatory requirement of Chronological pagination and serialization. It did not.
69. Hence the reason it is faulted for failure to review the confidential bundles/documents including the 3rd Interested Party\'s bid document which were submitted to it by the procuring entity under Section 67 of the PPADA.
70. They are strongly persuaded that for the above reason this Court should quash the PARB decision number 58 of 2024.
71. Further reliance is placed on Republic v Public Procurement Administrative Review Board; Ex-parte Madison Insurance Kenya Ltd; Accounting Officer /KEBS/ & Another (interested parties) Miscellaneous Application E039 of 2022 where the Court held that the Board had failed to consider a relevant matter in failing to consider confidential documents.
72. The 1st and 2nd Interested Parties argue that the failure to take into account the confidential documents renders the decision unprocedural and unfair. Reliance is placed in the Court of Appeal decision in Kenya Pipeline Company Limited v Hyosung Ebara Company Limited & 2 Others (supra) to buttress this position.
73. The Interested Parties also rely on Sunchan Investment Limited v Ministry of National Heritage & Culture & 3 Others [2016] eKLR the Court held that;
\"Analysis of Article 47 of the Constitution as read with the Fair Administrative Action Act reveals the implicit shift of judicial review to include aspects of merit review of administrative action. Section 7 (2) (f) of the Act identifies one of the grounds for review to be a determination if relevant considerations were not taken into account in making the administrative decision; Section 7 (2) (i) identifies abuse of discretion as a ground for review while Section 7(2) (k) stipulates that an administrative action can be reviewed if the impugned decision is unreasonable. Section 7(2) (k) subsumes the dicta and principles in the case of Associated Provincial Picture Houses Ltd v Wednesbury Corp. [1948] 1 KB 223 on reasonableness as a ground for judicial review.\"
74. In view of the foregoing, the contestations by the 1st and 2nd Interested party that it is the Applicant who bore the burden to prove the 3rd Interested Party\'s responsiveness to the tender are devoid of any merit and the Board fell into great error in walking along with them and reaching the decision it did.
75. They submit that the Applicant has ably demonstrated before this court that a relevant consideration was not taken into account resulting in procedural impropriety and unfairness to the Applicant and further, trampling on the applicant\'s legitimate expectation that upon presentation of his Request for review before the Board, all relevant material and documentation would be considered.
76. They further argue that The Applicant has established a case for the grant of judicial review orders of certiorari to quash the decision of the respondent on the one hand, and mandamus to direct the respondent to review the confidential documents and make a determination on the 2nd Interested Party\'s responsiveness to Tender No. KEBS/T007/2021-2022 for provision of staff medical insurance cover.
77. It is their case that indeed, the regulations give the evaluation committee exclusive power to reject a tender at various stages of the tender process in the circumstances specified by the Act and regulations.
78. The 3rd Interested party it is argued knew the qualifications of John Kimani, if it had any doubts or reservations, it should not have waited until after notification of the award. It should have made an inquiry under Section 75, and 76 PADA 2015 and ITT 7.1, 8, 23.2, 27.3 and 43 of the tender document.
79. In order to advance this argument, reliance is placed in the case of Republic v Public Procurement Administrative Review Board & 3 Others Ex-parte AAR Insurance Kenya Limited (2022) eKLR.
80. According to the 1st and 2nd Interested Parties the issue of determining the equivalent of requisite degree was not the mandate of the Respondent but that of the 1st Interested Party (that is, the Accounting Officer of the Procuring Entity).
81. Similarly, that it was the 2nd Interested Party’s mandate/discretion whether the marks could be pro-rated or not. This is because, it is the Procuring entity which knows what capabilities it required from the its suppliers of services and not the PARB.
82. It is also the P.E. further submission that the Review Board took into consideration some irrelevant factors (by purporting to calculate the marks scored by the 3\" Interested Party as 67.5/96% multiplied by 100 to get 70.3%) and disregarded relevant ones (like the lack serial and sequential pagination of the document) and further that the Board did not subject the 3rd Interested Party to a fair and transparent evaluation process.
83. During its application for review, the 3ª Interested Party is said to have filed an affidavit/statement in support of request for review sworn by John Kimani on 26th June 2024. At paragraph 8, 12 and 13 (page 7 and 8) it scored itself 85% by summation of the awarded marks and those which it believed it ought to have been awarded. The P.E responded in details to the evaluation criteria and how it arrived at 67.5%.
84. The 1st and 2nd Interested Parties argue that without warning or filing a further affidavit, on the hearing date, the 3rd Interested Party changed its score to 70.3% by claiming that the total score did not amount to 100% but 96%, therefore its score of 67.5% was actually 70.3%.
85. That is 67.5 divide by 96 multiplied by 100 amounts to 70.3%. As a result, the P.E was condemned unheard which is not only against the Fair Administrative Act Cap Laws of Kenya but also against the laws of natural justice.
86. The respondent it is argued allowed the P.E. to be lynched through trial by ambush. It should have taken note of the 3rd Interested Party’s submission but did not considered them since it was not properly before it for determination. It was not among the aspects/issues it had raised in its application, therefore neither the P.E nor the Interested Party (The First Assurance Company Limited) had made any submission on that aspect.
87. Further that clearly, the Respondent (PPARB) put into consideration things it should not have had in consideration while determining Application number 58 of 2024 and for this reason, also, this honourable court should quash the PPARB decision number 58 of 2024.
88. They argue that the Respondent erred in law by ordering the 1st and 2nd Interested Parties to comply with its orders within 14 days contrary to Section 175 (1), thereby committing an error of law.
89. Reliance is placed on Republic v. Public Procurement Administrative Review Board; Pwani University & 20thers Ex-Parte Guardforce Group Limited (12th May 2021). Justice Ogola at Paragraph 21 held as follows:
\"I am persuaded that the 14 days period is automatic stay to enable dissatisfied party to move to High Court for judicial Review Remedies.\"
90. The Respondent it is argued knew that its decision was open to Judicial Review within fourteen (14) days from its date but went ahead to compel the 1st and 2nd Interested Parties to comply with its decision before expiry of the 14 days statutory stay. In effect it compelled it to commit an error of law.
91. On the issue whether a power of Attorney must be registered to be valid. It is their case that the Tribunal found as fact that a Power of Attorney is a mandatory requirement and that this mandatory requirement is one of those that under the Public Procurement & Asset Disposal Act, cannot be derogated from.
92. It is argued that it so serious that a bidder CANNOT proceed to the next stage unless it (Power of Attorney) exists as part of the documentation. The PPRA is said to have made it a mandatory document for both sole-proprietors (mama mboga\'s) and corporate clients.
93. The 1st and 2nd Interested Parties pray to this court to compel the PPRA to clarify when a power of attorney is required in Public Procurement for movable property.
94. It is also their case that whereas the Tender conditions do not explicitly state that it has to registered, the registration of the Power of Attorney is a matter of law and not a matter of choice. Further that the law that governs it is the Registration of Documents Act and that with respect, the Board gave a shallow interpretation because the entire law cannot be quoted chapter and verse for the compulsory registration of the Power to be excused. Otherwise it would be an absurdity if the tender document required all laws to be quoted verbatim.
95. It is their case that Kenya Alliance have not brought forth any evidence to show that they registered the power of Attorney within two months of execution as required by law. The requirement of the Power of Attorney as a mandatory requirement was not put there by chance.
96. They argue that if the drafters intended it to be a matter of choice, then the Power of attorney would either have appeared in a different non mandatory section of the tender document or not featured at all.
97. It is also their case that The Government is being denied much needed revenue because the said Power of Attorney, in order to be produced in evidence as had been done, must be stamped and stamp duty paid as required by the Stamp duty Act.
98. The Interested Parties submit that the Power of Attorney, unless registered, can\'t be used as evidence since it is a compulsorily registrable document. While the Applicant entity has filed a Power of Attorney, they maintain that the Power of Attorney is ineffective unless registered. This is notwithstanding that the Tender document does not require the PA to be to be registered for effectiveness nor perceived necessity.
99. Further that on the tendering of the Power of Attorney as evidence, the Registration of Documents Act, as read with the Stamp Duty Act, require that unless the Power of Attorney is registered, it cannot be tendered as evidence.
100. Sections 4 and 9 of the Registration of Documents Act are said to require that all documents conferring any right, title or declare, limit or extinguish any right, title or interest, whether vested or contingent to, in or over immovable property be registered within two months after its execution, and if executed outside Kenya shall be registered within two months after its arrival in Kenya.
101. It is their case that a Power of Attorney is one of the documents that confer rights which means it needs to be registered before it can be used. They also argue that The Stamp Duty Act at Section 19 requires that no instrument chargeable with stamp duty shall be received in evidence in any proceedings whatsoever unless it is duly stamped. The power of attorney must as of necessity be stamped upon the stamp duty being paid under the Registration of Documents Act.
102. They also argue that the power of attorney must be registered in accordance with the law, and among others after payment of stamp duty so as to pass capacity. Reliance is placed in the case of Francis Mwangi Mugo Vs David Kamau Gachago [2017] eKLR This strict requirement it is argued goes to the legal capacity and is not a procedural defect therefore cannot be cured by Article 159 (2) (d of the Constitution.
103. According to them the position that the production of the power of attorney does not stop the trial court from examining and interrogating its probative value is maintained by courts in determining whether an unregistered power of attorney to deal with immovable property is valid in law and whether it be
used to transact business. Reliance is placed in the cases of Daniel Kipketer Rugut v Ernest Kayayi & 5 others [2021] eKLR and Kenneth Omolle Simbir & another v Daniel Ongor [2020] eKLR.
104. It is submitted that unless the Power of Attorney is registered it cannot be tendered as evidence. Without it, Kenya Alliance Insurance did not, in addition to other preconditions, meet the required threshold to move to the next stage of the tendering process.
105. It is also their case that this honourable Court considers this as a matter of great public importance and that remitting it back even one step in the evaluation process will re-open it to a long and protracted process making a bad situation worse.
106. It is their case that the Applicant has established a case for the grant of judicial review orders of certiorari to quash the decision of the respondent on the one hand, and mandamus to direct the 1st and 2nd Interested Party to reinstate the \"notification of intention to award\" issued to the Ex-parte applicant (3rd Respondent) and the unsuccessful tenderers dated 14* June 2024 and progress the tender No. MTRH/T/86/2023-2024 for Medical Insurance Cover to its logical conclusion.
107. The 1st and 2nd Interested parties pray for costs to be paid by the 3rd Interested Party.
3rd Interested Party’s Case;
108. In opposing the Application, the 3rd interested Party filed a Replying Affidavit and Further Affidavit dated 12th August 2024 and 21st August 2024.
109. It is its case that on 5th March 2024 Moi Teaching & Referral Hospital, the Procuring Entity and 2nd Interested Party herein together with its Chief Accounting Officer (the 1st Interested Party herein) invited sealed tenders in response to Tender No. MTRH/T/86/2023-2024 for Provision of Medical Insurance Cover. The 3rd Interested Party submitted a completed tender.
110. At the Preliminary Evaluation stage; all Tenders were meant to provide in their Bid Submissions a number of Documents enumerated under Section III of the Tender Document.
111. Aggrieved by failures by the 2nd Interested Party’s evaluation Committee to evaluate its tender in accordance with Tender Document as read with Section 80(2) of the Act and Article 227(1) of the Constitution at the technical evaluation stage; the 3rd Interested Party lodged at the Respondent a Request for Review under Section 167 of the Public Procurement and Asset Disposal Act 2015 being Request for Review No. 58 of 2024.
112. It was premised on the 1stand 2nd Interested Party’s failure to evaluate its bid in accordance with the provisions of the Tender Document as read with Section 80(2) of the Act and Article 227(1) of the Constitution at the Technical Evaluation stage.
113. The substantive issues of scoring alleged by the 3rd Interested Party on one hand the Respondent (Board) found that the total summation was 96 and not 100 and that the 67.5 marks as initially scored by the 2nd Interested Parties Evaluation Committee were to be 67.5 out of 96.
114. On the other hand; the Board observed that ONLY marks under Item Numbers 1 (iii), (v), ought to have been scored declining all of the 3rd Interested Party’s contentions on marks it alleged to have been erroneously denied.
115. The decision which the 3rd Interested Party challenged before the Respondent was that of the 1st and 2nd Interested Party (the Procuring Entity) whose very essence was beneficial to the Exparte Applicant herein in that it issued a Notification that the Ex parte Applicant was the successful Tenderer and that the 3rd Interested Party among other Tenders were unsuccessful giving reasons for failure to succeed.
116. It is its case that the outcome of the Request for Review that the 1st and 2ndRespondents failed to evaluate the 3rd Interested tender in accordance with the provisions of the Tender Document as read with Section 80(2) of the Act and Article 227(1) of the Constitution at the Technical Evaluation stage and the consequent Orders required the duo consisting the Procuring Entity to readmit the said tender to its Technical Evaluation stage for re-evaluation making good the anomalies the board pointed out with 14 days of the decision in accordance with the Tender Document, Regulations 2020, the Act and Article 227 of Constitution.
117. The 3rd Interested Party argues that there was a competent Request for Review before the Respondent and goes ahead to quote Section 167 of the Act, Schedule 14 of the Act read together with Regulation 203 and section 168 of the Act which mandates the Secretary to the Board to issue a notification of review and suspension of the proceedings.
118. It is its argument that the law prescribes the form to be used by aggrieved parties when lodging claims before the Respondent. Further that the Request for Review was in the format contemplated in the Act.
119. It is also its case that the Exparte Applicant has advanced a baseless Judicial Review on account that the Request for review was not merited for lack of authority to John Kimani (the 3rd Interested Party’s Principal Officer) and that the Affidavits he deponed were without authority.
120. The 3rd Interested Party’s case is that the principal Law i.e. the Procurement Act and the Rules 2020 do not make an affidavit as a prerequisite. It argues that the said Principal Officer had authority to sign the Supporting Affidavits to the Request for Review. Differently put that the Request for Review didn’t require supporting Documents or even the Affidavit to be appropriate.
121. It is urged that PPARB NO. 8 of 2023 - Toddy Civil Engineering Company Limited Vs Chief Executive Officer, Lake Victoria North Works Development Agency & Another (The Toddy Case) is distinguishable with this case in that in the said case; the issue was about an agent who had been given authority to sign Tender Documents instituting a Request for Review.
122. According to it in this matter; the instant Request for Review was instituted by the 3rd Interested Party’s Advocates who had authority to institute the same and supported by its principal Officers Supporting Affidavit.
123. It is their case that the said deponent merely stated without any proof that he had a telephone conversation with John Kimani who allegedly told him that he was not the one who signed the Supporting Affidavit and that he dint have authority. This is to be juxtaposed with the tangible evidence by the 3rd Respondent in the authority attached to the affidavit dated 12th July 2024 which was sealed by the 3rd Interested Party’s Seal besides being signed by two directors.
124. Further that it was well within the Respondents powers to reject the allegation as unsubstantiated and that the principal the 3rd Interested Party has reiterated this position through and through and the agent never swore any affidavit to denounce the Affidavits.
125. The 3rd Interested Party argues that the Respondent acted well within its Statutory mandate and also that the Ex parte Applicant is interpreting Section 175 to mean that whenever the Respondent made its decision i.e. on the 19th July 2024; the 14-day window given to any party aggrieved to file for Judicial Review served as an automatic stay.
126. It is its case that The procuring entity was statutorily bound to conduct re-evaluation as directed by the Board as this process could only be stayed after a party moved the High Court sought, and obtained leave to institute Judicial
127. Review Proceedings with consequent Orders expressly staying the procurement process including the decision of the board.
128. It is their case that the implementation of the Board’s decision did not bar or prevent any party from filing judicial review proceedings at the High Court thus absence of an illegality of any nature.
129. According to the 3rd Interested Party the issue of pagination and Power of Attorney by were raised for the first time by the procuring entity at the hearing of the Request for Review before the Respondent yet the same ought to have been raised in the Notification of Intention to Award as a reason to disqualify it pursuant to Section 87 (3) of the Public Procurement & Asset Disposal Act. The Respondent its argued, never went into the root as being an issue for determination.
130. It is its case that the Respondent acted well within its powers under the Act and arrived at a fair decision which this honorable court should uphold.
131. It argues that even when the Respondent found the 3rdInterested Party’s complaint before it to be meritorious; it acted in an extremely considered manner as it exercised its powers and discretion sparingly and instead of granting the Orders as sought; it referred the 3rd Interested Party’s Tender back to the 1st and 2nd Interested Party’s Evaluation Committee for readmission at the technical stage and re-evaluation.
132. Under Section 67 (1) as read with 67 (3)(e) of the Act on Confidentiality; the Chief Accounting officer of a Procuring Entity and any employees of the said entity as well as the Board – which is the recipient of any information relating to procurement evaluation, clarification of tenders or quotations or any of the contents thereof is barred from disclosing any of such to 3rd parties the exparte applicant included.
133. The 3rd Interested Party argues that The Procuring Entity never sought for any Judicial Review before this honorable court and this is indicative of the fact that it was satisfied by the Respondent’s finding.
134. The 3rd Interested Party invites the honourable Court to paragraph 162 of the Respondent’s Decision read together with paragraph 22 of the Respondent’s Replying Affidavit dated 14thAugust 2024 clearly indicated that the issue of the Power of Attorney came up during the hearing as it was raised by the Procuring Entity’s counsel and notwithstanding the same not to have been in contest; the Respondent in its thoroughness took cognisance of the arguments raised as pertaining pagination.
135. This was a mere belated desperate attempt to find justification post fact to have the 3rd Interested Party barred having found no answer to the critical question on why it arrived at the score of 67.5 % when the marks were 67.5 out of 96 and not 100.
136. It is its case that the Procuring entity appears to have been aggrieved with the Respondent’s decision merely because while implementing it; it could have an adverse effect of their unfairly preferred Tenderer could not be successful.
137. The 3rd Interested Party refers to the case of Supermarine Handling Services Ltd vs Kenya Revenue Authority, Civil Appeal No. 85 of 2006,where the Court explained the circumstances that would lead an appellate court to interfere with the trial court’s exercise of discretion. Reliance is also placed in Richard Kuloba, Judicial Hints on Civil Procedure, 2nd Edition, page at page 101, on the issue of costs.
138. The 3rd Interested Party argues that the costs should be borne by the Exparte Applicant, and the 1st and 2nd Interested Parties.
ANALYSIS AND DETERMINATION
139. Upon considering the parties pleadings and rival arguments, the law and the authorities relied upon by the parties, this court finds the following to be the issues for determination:
i. Whether orders of judicial review should be granted.
ii. Whether the Ex Parte Applicant is entitled to costs.
Whether orders of judicial review should be granted.
140. The applicant must persuade the court that its case falls within the principles as settled in the case of Pastoli vs Kabale District Local Government Council & Others, (2008) 2 EA 300, where in 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 provisions of a law or its principles are instances of illegality….
Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, 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 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.”
141. Parties have embraced divergent positions in so far as the issues of the power of Attorney, pagination of documents and affidavit is concerned.
142. Sections 4 and 9 of the Registration of Documents Act require that all documents conferring any right, title or declare, limit or extinguish any right, title or interest, whether vested or contingent to, in or over immovable property shall be registered every document whose registration is compulsory shall be registered within two months after its execution, and if executed outside Kenya shall be registered within two months after its arrival in Kenya.
143. The Stamp Duty Act at Section 19 stipulates that no instrument chargeable with stamp duty shall be received in evidence in any proceedings whatsoever unless it is duly stamped.
144. The Tribunal found as a fact that a Power of Attorney is a mandatory requirement. This mandatory requirement is one of those that under the Public Procurement & Asset Disposal Act, cannot be derogated from.
145. It is so serious that a bidder cannot proceed to the next stage unless a Power of Attorney exists as part of the documentation.
146. The 1st and 2nd Interested Party pray to this court to compel the PPRA to clarify when a power of attorney is required in Public Procurement for movable property.
147. Whereas the Tender conditions do not explicitly state that it has to be registered, the registration of the Power of Attorney is a matter of law and not a matter of choice.
148. While the Applicant entity has filed a Power of Attorney, the respondent maintains that the Power of Attorney is ineffective unless registered.
149. On the question of pagination, The 3rd interested party is of the view that the issue of pagination ought to have been raised in the Notification of Intention to Award as a reason to disqualify the 3rdInterested Party and under Section 87 (3) of the Public Procurement & Asset Disposal Act the same ought to have been disclosed.
150. The manner in which the issues around the of the Affidavit, the pagination and power of Attorney are coined by the parties largely touch on the merits of the decision that would form grounds for appeal. Judicial intervention in Judicial Review matters is limited to cases where the decision was arrived at arbitrarily, capriciously or mala fide or as a result of unwarranted adherence to a fixed principle or in order to further an ulterior or improper purpose, or where the functionary misconceived the nature of the discretion conferred upon him and took into account irrelevant considerations or ignored relevant ones; or where the decision of the functionary was so grossly unreasonable as to warrant the inference that he had failed to apply his mind to the matter.
151. It is this court\'s finding that the Respondent took cognisance of the issue of the pagination and power of Attorney and exercised its discretion on the Affidavit and rendered itself.
152. In the case of Dande & 3 others v Inspector General, National Poloce Service & 5 others (Petition 6 (E007), 4 (E005) & 8 (E010) of 2022 (Consolidated)) [2023] KESC 40 (KLR) (16 June 2023) (Judgment) Neutral citation: [2023] KESC 40 (KLR) the Supreme Court held that:
“81.The entrenchment of judicial review in the Constitution has led to the emergence of divergent views on the scope of judicial review. The first group postulates that judicial review is concerned with the process a statutory body employs to reach its decision and not the merits of the decision itself while the second group opine that under the current constitutional dispensation, courts could delve into both procedural and merit review in resolving disputes.
153. A party who was dissatisfied with the finding on the issue of the affidavit, the pagination and the Power of Attorney should have lodged an appeal as opposed to inviting this court to carry out a merit analysis.
154. This court shall not delve into the merits of these issues and I so hold.
This court will now turn to the issue of whether or not the Applicant has made out a case for the grant of the order of certiorari.
155. In the case of Sunchan Investment Limited v Ministry of National Heritage & Culture & 3 Others [2016] eKLR. the Court held that;
\"Analysis of Article 47 of the Constitution as read with the Fair Administrative Action Act reveals the implicit shift of judicial review to include aspects of merit review of administrative action.
156. Section 7 (2) (f) of the Act identifies one of the grounds for review to be a determination if relevant considerations were not taken into account in making the administrative decision; Section 7(2) (i) identifies abuse of discretion as a ground for review while Section 7(2) (k) stipulates that an administrative action can be reviewed if the impugned decision is unreasonable. Section 7(2) (k) subsumes the dicta and principles in the case of Associated Provincial Picture Houses Ltd v Wednesbury Corp. [1948] 1 KB 223 on reasonableness as a ground for judicial review.
157. In the impugned decision, the Respondent gave directions to the Accounting Officer of the Procuring Entity to re-admit the Applicant\'s tender to the Technical Evaluation(Where it had failed to procced from) stage for re-evaluation and make good the anomalies that the Board has pointed out herein in the procurement process of the subject tender within 14 days in accordance with the provisions of the Tender Document, Regulations 2020, the Act and Article 227 of the Constitution within 14 days from the date hereof while taking into consideration the Board\'s findings in this Request for Review.
158. Section 175 of the PPAD Act provides thus: “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”
159. This court notes that The Respondent gave compliance timelines that would in effect run concurrently and within the period in which an application for Judicial Review should be filed under Section 175 of The PPAD Act.
160. The Respondent (PPARB) misdirected itself in ordering the 1st and 2nd Interested Parties to comply with its orders within 14 days contrary to Section 175 (1), thereby committing an error of law.
161. The 3rd Interested Party’s argument that The procuring entity was statutorily bound to conduct re-evaluation as directed by the Board is misplaced. You cannot put anything on nothing. The direction of the Board was tainted with an illegality in that it amounted to denying the Applicant the window to approach the High Court for judicial review. This in effect took away the Applicant’s right to fair hearing under Article 47 of the Constitution. The Applicant had a legitimate expectation that it could harness the fourteen (14) days to seek redress in the High Court. This was not to be.
162. An ailing procurement process can only be stopped after a party obtains leave to institute Judicial Review Proceedings with consequent Orders expressly staying the procurement process including the decision of the board.
163. The 3rd Interested Party’s argument that the implementation of the Board’s decision did not bar or prevent any party from filing judicial review proceedings at the High Court is misplaced. Whether or not an aggrieved party elects to pursue judicial review proceedings at that stage or not is a very different thing altogether.
164. The fact remains that the Board generated an illegality and all consequential activities in the name of complying with ailing directions cannot culminate nor lead to a legally binding decision and I so hold.
165. In so finding, this court is guided by the case of Republic v. Public Procurement Administrative Review Board; Pwani University & 20thers Ex-Parte Guardforce Group Limited (12th May 2021) wherein Justice Ogola at Paragraph 21 held as follows;
\"I am persuaded that the 14 days period is an automatic stay to enable a dissatisfied party to move to High Court for judicial Review Remedies.\"
166. In the instant suit, The Respondent knew that its decision was open to the statutory Judicial Review process or stand still period of fourteen (14) days from the date of its decision but still went ahead to compel the 1st & 2nd Interested Parties to comply with its decision before the expiry of the 14 days.This court finds that the applicant has established a case for the grant of the order of certiorari to quash the impugned decision as sought in prayer 1 of its Application.
167. In effect it compelled 1st & 2nd Interested Parties to commit an error of law at the expense of the procurement process. This cannot be said to be in keeping with Articles 47 and 227 of the Constitution.
168. The applicant also seeks orders of Judicial review Order of Mandamus to compel the 1st Interested Party to terminate or cancel the request for best and final offer (BAFO) proceedings commenced on 29th July, 2024 and a Judicial review Order of Mandamus to compel the 1st Interested Party to prepare and to execute the Contract for Provision of Medical Insurance Cover (Tender No. MTRH/T/86/2023-2024) in line with the award decision dated 14th June, 2024.
169. The HALSBURY’S LAW OF ENGLAND, 4th Edition Volume 1 at page 111 FROM PARAGRAPH 89 treatise says:
“The order of mandamus is of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual.”
170. As will be borne by the final determination of this suit, this court makes a finding that the Respondent is a specialized central independent body mandated to review, hear and determine tendering disputes as opposed to the court and the orders of mandamus cannot be granted as sought.
171. The Applicant also sought for an order of Prohibition to prohibit the 1st and 2nd Interested Parties from evaluating, considering the evaluation report and the professional opinion thereof and awarding any best and final offer (BAFO) received pursuant to the 1st Interested Party’s request for best and final offer (BAFO) referenced ELD/MTRH/SSE/7/2/VOL.X1/2016 and dated 29th July, 2024.
172. In determining this issue, I am guided by the case of Republic v Principal Kadhi, Mombasa Ex-parties Alibhai Adamali Dar & 2 others; Murtaza Turabali Patel (Interested Party) [20221 eKLR, where the Court rendered itself thus:
\"The Order of \"Prohibition\" issues where there are assumptions of unlawful jurisdiction or excess of jurisdiction. It\'s an order from the High Court directed to an inferior tribunal or body as in this case the Kadhi’s Court. Its functions is to prohibit and/or forbids encroachment into jurisdiction and further to prevent the implementation of orders issued when there is lack of jurisdiction.
\"Although prohibition was originally used to prevent tribunals from meddling with cases over which they had no jurisdiction, it was equally effective and equally often used, to prohibit the execution of some decision already taken but ultra vires. So long as the tribunal or administrative authority still had power to exercise as a consequence of the wrongful decision, the exercise of that power could be restrained by prohibition. Certiorari and prohibition frequently go hand in hand, as where certiorari is sought to quash the decision and prohibition to restrain its execution. But either remedy may be sought by itself.\"
173. In the case of Kenya National Examination Council versus Republic ex parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR, the Court stated the grounds upon which such an order of prohibition may issue as follows;
“What does an order of prohibition do and when will it issue\" It is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only for excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It does not, however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings – See HALSBURY&39; S LAW OF ENGLAND, 4th Edition, and Vol.1 at pg. 37 paragraphs 128”
174. Having made a finding that the applicant has made out a case for the grant of an order of certiorari as read alongside the principles on prohibition as enunciated out in the two cases above, I am persuaded that the Applicant has made out a case for the grant of an order of prohibition.
Costs:
175. In settling the issue of costs, this court is guided by Richard Kuloba’s, Judicial Hints on Civil Procedure, 2nd Edition, page at page 101, the author authoritatively states as follows on the issue of costs: -
“The law of costs as it is understood by Courts in Kenya, is this, that where a plaintiff comes to enforce a legal right and there has been no misconduct on his part-no omission or neglect, and no vexatious or oppressive conduct is attributed to him, which would induce the Court to deprive him of his costs- the Court has no discretion and cannot take away the plaintiff’s right of costs. If the defendant, however innocently, has infringed a legal right of the plaintiff, the plaintiff is entitled to enforce his legal right and in the absence of any reason such as misconduct, is entitled to the costs of the suit as a matter of course”.
At page 101 of the same book, Kuloba authoritatively states as follows:-
“The law of costs as it is understood by courts in Kenya, is this, that where a plaintiff comes to enforce a legal right and there has been no misconduct on his part-no omission or neglect, and no vexatious or oppressive conduct is attributed to him, which would induce the court to deprive him of his costs-the court has no discretion and cannot take away the plaintiffs right to costs. If the defendant, however innocently, has infringed a legal right of the plaintiff, the plaintiff is entitled to enforce his legal right and in the absence of any reason such as misconduct, is entitled to the costs of the suit as a matter of course”.
176. In the case of Orix ( K) Limited vs Paul Kabeu & 2 others it was held inter alia:-
“…court should have been guided by the law that costs follow the event, and the plaintiff being the successful party should ordinarily be awarded costs unless its conduct is such that it would be denied costs or the successful issue was not attracting costs. None of the deviant factors are present in this case and the court would still have awarded costs to the plaintiff, which I do.”
177. In the instant case, it is my finding that each party shall bear its costs.
Disposition;
The applicant has partly made out a case for issuance of the orders.
Order:
1. An Order of Certiorari to remove to the High Court quashing the Respondent’s proceedings in the Request for Review No. 58/2024 and the decision thereof dated 19th July, 2024 is hereby issued.
2. The prayer for an Order of Certiorari to remove to the High Court the 1st and 2nd Interested Parties’ re-evaluation report, professional opinion, award decision and the request for best and final offer (BAFO) referenced ELD/MTRH/SSE/7/2/VOL.X1/2016 and dated 29th July, 2024 for the purposes of being quashed is declined.
3. An Order of Prohibition to prohibit the 1st and 2nd Interested Parties from evaluating, considering the evaluation report and the professional opinion thereof and awarding any best and final offer (BAFO) received pursuant to the 1st Interested Party’s request for best and final offer (BAFO) referenced ELD/MTRH/SSE/7/2/VOL.X1/2016 and dated 29th July, 2024 is allowed.
4. The prayer for an Order of Mandamus to compel the 1st Interested Party to terminate or cancel the request for best and final offer (BAFO) proceedings commenced on 29th July, 2024 is disallowed.
5. The prayer for an order of Mandamus to compel the 1st Interested Party to prepare and to execute the Contract for Provision of Medical Insurance Cover (Tender No. MTRH/T/86/2023-2024) in line with the award decision dated 14th June, 2024 is disallowed.
6. Each party shall bear its costs.
7. The Request for Review No. 58/2024 shall be readmitted for hearing and determined within 7 days of today’s date.
1) Judicial review Order of Certiorari to remove to the High Court the Respondent’s proceedings in the Request for Review No. 58/2024 and the decision thereof dated 19th July, 2024 for the purposes of being quashed.
2) Judicial review Order of Certiorari to remove to the High Court the 1st and 2nd Interested Parties’ re-evaluation report, professional opinion, award decision and the request for best and final offer (BAFO) referenced ELD/MTRH/SSE/7/2/VOL.X1/2016 and dated 29th July, 2024 for the purposes of being quashed.
3) Judicial review Order of Prohibition to prohibit the 1st and 2nd Interested Parties from evaluating, considering the evaluation report and the professional opinion thereof and awarding any best and final offer (BAFO) received pursuant to the 1st Interested Party’s request for best and final offer (BAFO) referenced ELD/MTRH/SSE/7/2/VOL.X1/2016 and dated 29th July, 2024.
4) Judicial review Order of Mandamus to compel the 1st Interested Party to terminate or cancel the request for best and final offer (BAFO) proceedings commenced on 29th July, 2024.
5) Judicial review Order of Mandamus to compel the 1st Interested Party to prepare and to execute the Contract for Provision of Medical Insurance Cover (Tender No. MTRH/T/86/2023-2024) in line with the award decision dated 14th June, 2024.
6) Cost of the suit.
The Applicants case;
2. The application is predicated on the statutory statement, the Verifying Affidavit dated 1st August, 2024 and the Further Affidavit sworn on 23rd August, 2024.
3. It is the Applicant’s case that on 5th March, 2024 the 1st Interested Party advertised the Tender Document for Provision of Medical Insurance Cover (Tender No. MTRH/T/86/2023-2024).
4. In the Tender Document, the 1st Interested Party set out the technical evaluation criteria for purposes of the implementation of the proposed health insurance policy.
5. The Ex Parte Applicant submitted a Tender in response to the said Tender on 28thMarch, 2024. Subsequently on 14th June, 2022 the 1st Interested Party notified the Ex Parte Applicant of his intention to award its Tender.
6. On 28th June, 2024 the 3rd Interested Party filed Request for Review being No. 58 of 2024 which was countered by the 1st Interested Party and the Ex Parte Applicant through Responses and preliminary objections to the Request for Review prompting the 3rd Interested Party to file a Further Affidavit.
7. It is the Applicant’s case that from the 1st Interested Party’s Response to the Request for Review, it was evidently clear that the 3rd Interested Party’s Tender document did not meet the 70 marks threshold in the technical evaluation stage to proceed to financial evaluation.
8. It is further its case that in addition to its failure to meet the technical evaluation criteria, the 3rd Interested Party’s Request for Review was fatally incompetent and the Respondent ought not to have been entertained as the Affidavits/Statements thereof misrepresented that John Kimani was the Chief Executive Officer and Principal Officer as at 26th June, 2024 and 12th July, 2024.
9. Ultimately, on 19th July, 2024 the Respondent delivered its decision in the matter and nullified and set aside the 1st Interested Party’s notification of intention to award the Ex Parte Applicant’s Tender and directed him to re-admit the 3rd Interested Party’s Tender and re-evaluate it at the technical evaluation stage.
10. It is its case that the Respondent’s decision making process was tainted by its:
(a) failure to take into account that the 3rd Interested Party’s Authority to Sue dated 25th June, 2024 was not executed by either two authorised signatories or a director in the presence of a witness who attests the signature;
(b) failure to take into account the 3rd Interested Party’s misrepresentation that John Kimani was its Principal Officer as at 26th June, 2024 and 12th July, 2024;
(c) failure to take into account the fact that the 3rd Interested Party did not swear an affidavit to disprove the Ex Parte Applicant’s averments in the Affidavit sworn on 15th July, 2024;
(d) failure to comply with Regulation 218 of the Public Procurement and Asset Disposal Regulations, 2020 which prescribed a mandatory derogation from the rules of evidence in the hearing of a request for review;
(e) unfair departed from its position in the case of PPARB No. 8 of 2023 - Toddy Civil Engineering Company Limited v Chief Executive Officer, Lake Victoria North Water Works Development Agency & Another that a Statement executed contrary to Section 37(2) of the Companies Act, 2016 and Regulation 203(2)(b) of the Public Procurement and Asset Disposal Regulations, 2020 is fatally defective;
(f) re-evaluation of the 3rd Interested Party’s Tender in excess of its authority under Section 28(1)(a) and 173 of the Public Procurement and Asset Disposal Act, 2015;
(g) failure to defer the re-evaluation of the 3rd Interested Party’s Tender to the 1st and 2nd Interested Parties’ expert Tender Committee members assisted by external technical experts;
(h) taking into account consideration pagination and power of attorney of the 3rd Interested Party that were irrelevant in the technical evaluation stage;
(i) amendment of the 1st Interested Party’s Technical Evaluation Criteria in the Tender Document without lawful authority; and
(j) failure to give the Ex Parte Applicant notice and audience on the issues that it noted in the 3rd Interested Party’s original Tender and in the 1ts Interested Party’s Evaluation Report with respect to evaluation criteria 1, 2 and 11 of the Tender Document.
The foregoing has precipitated the filing of the instant suit.
11. The Applicant argues that by virtue of Section 175(1) of the Public Procurement and Asset Disposal Act, 2015 and Section 57(a) of the Interpretation and General Provisions Act the Respondent’s decision is in abeyance with effect from 20thJuly, 2024 to 2nd August, 2024 both days inclusive.
12. It is also its case that the Respondent’s decision became final and binding with effect from 3rd August, 2024 since no application for judicial review was filed by 2nd August, 2024.
13. Further that by virtue of the 1st Interested Party’s request to submit the Ex Parte Applicant’s best and final offer (BAFO) received on 30th July, 2024, it argues that the 1st and 2nd Interested Parties implemented the Respondent’s decision by re-admitting and re-evaluating the 3rd Interested Party’s Tender.
14. According to the Applicant the 1st Interested Party’s conduct is in breach of Section 44(1) of the Public Procurement and Asset Disposal Act, 2015 which required it to ensure compliance with the Act and further that its request for the best and final offers(BAFOs) is an unfair administrative action which is amenable to judicial review.
15. In advancing the argument for the grant of the orders of judicial review it invokes Section 28(1)(a) and 167(1) of the Public Procurement and Asset Disposal Act, 2015 and Regulation 203(2)(c) of the Public Procurement and Asset Disposal Regulations, 2020 from where the mandate of the Respondent to review, hear and determine tendering and asset disposal disputes flows from.
16. Reliance is placed in the case of Per 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, where it was observed that “… the decision–maker must understand correctly the law that regulated his decision–making power and must give effect to it…”
17. The Applicant also refers to Halsbury’s Laws of England, 4thEdition para. 77 page 170 on where it is posited that:
“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.
18. It is the Applicant’s case that The Respondent understood that it had no jurisdiction to review, hear and determine the dispute whether the marks allocated by the 1st Interested Party added up to 100, the dispute whether John Kimani’s Bachelor’s Degree in Computer Science entails mathematics and statistics and whether it is equivalent to Commerce Insurance Option/Economics/Business/Statistics/Actuarial Science, the dispute whether marks should be pro-rated, the dispute as to the meaning of similar services requirements and the dispute whether the power of attorney was to be registered as the same was to be reviewed, heard and determined by either the 1st Interested Party under Section 75(1)(2) and 76 of the Public Procurement and Asset Disposal Act, 2015 and ITT 8, ITT 27.3 and ITT 43.1 of the Tender Document or by the Respondent under 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.
19. The Applicant relies on the case of Republic v Public Procurement Administrative Review Board & Another ex parte Gibb Africa Ltd & Another (2011) eKLR on judicial review orders being of a discretionary nature.
20. Reliance is also placed in the case of Public Procurement Administrative Review Board & 3 others ex parte AAR Insurance Kenya Limited, HCJR/E005/2022 where Ngaah J emphasised that the disqualified tenderers ought to have enquired reasons for their disqualification and not wait until the award has been to seek nullification. This position is said to have been understood by the Respondent as the law as demonstrated in its own decision in the case of Application No. 48 of 2021 - Fahimyasin Company Limited v the Accounting Officer, Kenya Urban Roads Authority & 2 others.
21. Reliance is also placed in the case of Republic v Public Procurement Administrative Review Board & 3 others ex parte AAR Insurance Kenya Limited (supra) where Ngaah J held “As noted, it is the time of the breach that counts and not when the reasons for the alleged breach are given\". This decision it is argued was upheld by the Court of Appeal in the case of Jubilee Health Insurance Limited v Public Procurement Administrative Review Board & 3 others, Civil Appeal No. COACA/E135/2022.
22. Reliance is also placed in the book Administrative Law, 10th edition (Oxford: Oxford University Press:2009), pp 222 – 225, where Wade & Forsyth posit that “all error of law are now reviewable”.
23. According to the Applicant 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.
24. It argues that the Respondent’s decision making process was tainted by illegality which affected its decision as it assumed jurisdiction where the same was barred by the legal doctrines of exhaustion, acquiescence, waiver (abandonment), indolence and laches.
25. It also relies on the case of Speaker of the National Assembly v James Njenga Karume [1992] eKLR where the Court of Appeal emphasised on the need to exhaust procedures for redress that are provided for by the Constitution or an Act of Parliament, that procedure should be strictly followed.
26. The case of Serah Njeri Mwobi v John Kimani Njoroge [2013] eKLR is relied on what the meaning and effect of the doctrine of waiver. Reliance is also place in the case of Banning v Wright (1972) 2 All ER 987 on this issue.
27. The Applicant also refers to the case of Sita Steel Rolling Mills Ltd v Jubilee Insurance Company Ltd [2007] eKLR on instances when a waiver may arise.
28. It is its argument that The Respondent’s decision making process was tainted by illegality which affected its decisions that John Kimani’s Bachelor’s Degree in Computer Science entails mathematics and statistics which is equivalent to Commerce Insurance Option/Economics/Business/Statistics/Actuarial Science and the decision to pro-rate marks were ultra vires Section 60, 70(4) and 75(1) of the Public Procurement and Asset Disposal Act, 2015.
29. The Applicant relies on the case of Council of Civil Service Unions versus Minister for the Civil Service (1985) A.C. 374,410 on the ground of illegality.
30. Reliance is also placed in the case of HCJR/E189/2022 - Republic v Public Procurement Administrative Review Board & 3 others ex parte First Assurance Company Limited where the court held that:
“It follows that by requiring the procuring entity to dispense with a particular requirement, the respondent breached sections 60, 70 and 79 of the Act and, for this very reason, its decision was ultra vires the respondent’s powers under section 173 of the Public Procurement and Asset Disposal Act.”
31. It is its case further that the Respondent’s decision making process was also tainted by procedural impropriety as the Respondent took into account pagination, power of attorney that were irrelevant in the technical evaluation stage in issue. The Respondent is also accused of failing to consider the Ex Parte Applicant’s evidence of misrepresentation of John Kimani as the Chief Executive Officer and the Principal Officer and instead adopted rules of evidence and procedure that was inimical to Regulation 218 of the Public Procurement and Asset Disposal Regulations, 2020.
32. The Applicant further relies on the case of SGS Kenya Limited v Energy Regulatory Commission & 2 others (Petition 2 of 2019) [2020] KESC 64 (KLR) (10 January 2020) (Judgment) where the Supreme Court held that that the PPARB is a specialized body charged with programming and regulatory tasks of the socio-economic, administrative and operational domains. The Court also went ahead to hold that such a body/tribunal should fully take into account any factors of change, in relation to different cases occurring at different times: without being bound by some particular determination of the past.
33. The Applicant also refers to the case of Pastoli v Kabale District Local Government Council & others [2008] 2 EA 303 and Republic v Public Procurement Administrative Review Board & 3 others ex parte AAR Insurance Kenya Limited, HCJR/E005/2022 (supra) on the ground of Procedural impropriety in judicial review.
34. It is the Applicant’s case that the implementation of the Respondent’s decision by the 1st and 2nd Interested Parties is also amenable to review as it was ultra vires Section 175(1) of the Public Procurement and Asset Disposal Act, 2015.
35. The Applicant relies on the of Republic v Public Procurement Administrative Review Board Ex- Parte Transcend Media Group Limited [2017] eKLR where the Court observed as follows;
“once the said proceedings are commenced the binding effect and finality of the decision is thereby suspended so that any contract entered into between the procuring entity and the party in whose favour a tender has been awarded cannot defeat the proceedings merely because such a contract has been entered into.
8. In other words a procuring entity which enters into a contract during the pendency of judicial review proceedings properly commenced does so at the risk that the Court may quash the decision and thereby nullify the contract with the attendant consequences.”
36. The Applicant also relies in the cases of Republic v Public Procurement Administrative Review Board & another Ex - parte Avante International Technology Inc [2013] eKLR Republic v Public Procurement Administrative Review Board & 2 others ex parte Noble Gases International Limited [2013] eKLR to further support the issue of the effect of commencement of judicial review proceedings with the 14 day period provided under the law.
37. The applicant believes that it has demonstrated that the Respondent treated the Ex Parte Applicant unfairly in view of Article 47(1) of the Constitution of Kenya, 2010 and Section 4(1) of the Fair Administrative Action Act, 2015 which entitle it to a fair administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
38. It believes its case falls within the principles as set out In the case of Pastoli v Kabale District Local Government Canal & Others (2008).
39. The applicant argues that the judicial review was necessary and the Ex Parte Applicant is entitled to costs of the suit as provided under Section 27(1) of the Civil Procedure Act which states that, “… costs follow the event”.
40. Reliance is also placed in Kuloba J in Judicial Hints on Civil Procedure, 2nd Ed. (Nairobi: Law Africa, 2011), p. 94.
The Respondent’s Case;
41. According to the Respondent, the applicant is a review of the merits of the decision of the Respondent that is seeking to improperly invoke an appellate jurisdiction of the High Court.
42. Section 173 of the Public Procurement and Disposal Act, 2015 it is argued provides for the powers of the Review Board and it is the Respondent’s case that it acted as expressly authorized under section 173 of the Act in discharge its mandate and had power to do so.
43. The Respondent argues that it indeed had jurisdiction to hear and determine the request for review and reiterates its findings.
44. It argues that the purpose of judicial review is to ensure that a party receives fair treatment in the hands of public bodies.
45. It is its case that it is not the purpose of judicial review to ensure that the public body, after according fair treatment to a party, reaches on a matter which it is authorized by law to decide for itself, a conclusion which is correct in the eyes of the court.
46. The cases of Council of Civil Service Unions vs. Minister For The Civil Service [1984] 3 ALL ER 935 and Grain Bulk Handlers Limited vs. J. B. Maina & CO. LTD & 2 Others [2006] eKLR where the scope of judicial review was summarized.
47. The Respondent also refers to Republic vs. Kenya Revenue Authority Ex parte Yaya Towers Limited [2008] eKLR and Seventh Day Adventist Church (East Africa) Limited v Permanent Secretary, Ministry Of Nairobi Metropolitan Development & another [2014] eKLR on the purpose judicial review proceedings.
48. The Court of Appeal in Kenya Pipeline Company Limited V Hyosung Ebara Company Limited & 2 Others (2012) eKLR is also relied on where the Court drew the boundaries for reviewing the decisions of the Review Board.
49. According to the respondent in order for an applicant to move the Court into giving orders on the ground that a tribunal has committed an error of law, the applicant must demonstrate that there is indeed a mistake that goes to the jurisdiction of the tribunal. Misinterpretation of the law is not sufficient to move a judicial review application.
50. It is the Respondent’s case that in Judicial review the court is only concerned with the fairness of the process under which the impugned decision or action was reached. The Court of Appeal in Municipal Council of Mombasa V Republic & another (2002)eKLR in support of this position.
51. In Republic Vs Kenya Power & Lighting Company Limited & Another [2013] eKLR the learned Judge quoting a decision of the Court of Appeal stated: The Board considering all the arguments of the Applicant and made findings on each of these issues. The Board may have been wrong in its decision but this Court would be usurping the statutory function of the Board were it to substitute its own views for those of the Board.
52. In the matter of Republic v Public Procurement Administrative Review Board & 2 others Exparte Rongo University [2018] eKLR the court stated at paragraph 59 that:-
An administrative functionary that is vested by statute with the power to consider and make a decision is generally best equipped by the variety of its composition, by experience, and its access to sources of relevant information and expertise to make the right decision. The Court is slow to assume a discretion which has by statute been entrusted to another tribunal or functionary.
53. In the instant case, it is the Respondent’s case that The applicant has raised the issue of the decision of the Respondent being ultra vires. It argues that the scope of an ultra vires decision was well elucidated by Justice John M. Mativo (as he then was) in the case of Republic v Cabinet Secretary, Ministry of Agricultures, Livestock & Fisheries; Cabinet Secretary, Ministry of Industry, Trade & Co-operatives (Interested Party) Tanners Association of Kenya(Suing through its Chairman Robert Njoka Ex Parte Applicant [2019] eKLR at paragraph 24 to 28.
54. According to the Respondent the most basic rules of administrative law are first that decision makers may exercise only those powers, which are conferred on them by law and, second, that they may exercise those powers only after compliance with such procedural prerequisites. So long as administrators comply with these two rules, their decisions are safe.
55. It is its case that this fundamental principle generally requires that the exercise of powers of administrators and statutory bodies must strictly comply with the law both substantively and procedurally. Further that the legality of an administrative decision can be judicially challenged on grounds that the administrative decision does not comply with the basic requirements of legality.
56. The Respondent argues that a decision is illegal if it: - (a) contravenes or exceeds the terms of the power which authorizes the making of the decision; (b) pursues an objective other than that for which the power to make the decision was conferred; (c) is not authorized by any power; (d) contravenes or fails to implement a public duty.
57. The Respondent’s case is that the task for the courts in evaluating whether a decision is illegal is essentially one of construing the content and scope of the instrument conferring the duty or power upon the decision-maker. The instrument will normally be a statute. A government Minister is bound to adhere to the law. The courts when exercising this power of construction are enforcing the rule of law, by requiring government functionaries to act within the four corners‘‘ of their powers or duties.
58. They are also acting as guardians of Parliament‘s will, seeking to ensure that the exercise of power is in accordance with the scope and purpose of Parliament‘s enactments. Where discretion is conferred on the decision-maker, the courts also have to determine the scope of that discretion and therefore need to construe the statute purposefully. One can confidently assume that Parliament intends its legislation to be interpreted in a meaningful and purposive way giving effect to the basic objectives of the legislation.
59. According to the Respondent Statutes do not exist in a vacuum. They are located in the context of our contemporary democracy. The rule of law and other fundamental principles of democratic constitutionalism should be presumed to inform the exercise of all official powers unless Parliament expressly excludes them. There may even be some aspects of the rule of law and other democratic fundamentals which Parliament has no power to exclude. The courts should therefore strive to interpret powers in accordance with these principles.
60. It is the Respondent’s argument that what must be borne in mind is that exercise of statutory power has a constitutional underpinning and that the Constitution should be the point of reference for any one exercising statutory power. Thus, exercise of public power must strictly conform to the constitutional dictates of transparency, openness, accountability, fairness and generally, the rule of law. Such rights cannot be narrowly construed. Differently put, every person has a right to an administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
61. It’s the Respondents\' case that the Applicant has not proved that the Respondent exceeded its power and as such this ground must fail.
62. On the issue of Jurisdictional error, it places reliance in the case of Republic vs Attorney General & 4 others ex-parte Diamond Hashim Lalji and Ahmed Hasham Lalji at paragraph 10.
63. On the issue of Wednesbury Unreasonableness the Applicant is said to seek the court’s intervention to annul the impugned decision. Further that as a matter of principle, the test of Wednesbury Unreasonableness has been stated to be that the impugned decision must be objectively so devoid of any plausible justification that no reasonable body of persons could have reached it and that the impugned decision had to be verging on absurdity in order for it to be vitiated. The above mentioned principle it is argued was established in the Australian case of Prasad v Minister for Immigration.
64. To buttress the test above in relation to the impugned decision the Respondent places reliance in the case of Republic v Public Procurement Administrative Review Board & 2 others Ex parte Rongo University [2018] eKLR where the court stated at paragraph 53 to 57.
65. The Respondent’s case is that Ex parte Applicant has not made out a case for issuance of the orders sought and the same should be dismissed with costs.
66. On the issue of costs, The Respondent argues that since section 175(7) of the Public Procurement and Asset Disposal Act bars issuance of costs.
The 1st and 2nd Interested Parties’ case;
67. It is the 1st & 2nd Interested parties case that Section 7(2)(m) of the Fair Administrative Action Act obligates this Honourable Court to review an administrative action or decision if the same violates the legitimate expectations of the person to whom it relates to.
68. The interested parties argue that they legitimately expected the Respondent (PPARB) to consider their submissions which pointed it to the confidential documents submitted under PPADA and give an explanation on its finding that the 3rd Interested Party\'s bid met the mandatory requirement of Chronological pagination and serialization. It did not.
69. Hence the reason it is faulted for failure to review the confidential bundles/documents including the 3rd Interested Party\'s bid document which were submitted to it by the procuring entity under Section 67 of the PPADA.
70. They are strongly persuaded that for the above reason this Court should quash the PARB decision number 58 of 2024.
71. Further reliance is placed on Republic v Public Procurement Administrative Review Board; Ex-parte Madison Insurance Kenya Ltd; Accounting Officer /KEBS/ & Another (interested parties) Miscellaneous Application E039 of 2022 where the Court held that the Board had failed to consider a relevant matter in failing to consider confidential documents.
72. The 1st and 2nd Interested Parties argue that the failure to take into account the confidential documents renders the decision unprocedural and unfair. Reliance is placed in the Court of Appeal decision in Kenya Pipeline Company Limited v Hyosung Ebara Company Limited & 2 Others (supra) to buttress this position.
73. The Interested Parties also rely on Sunchan Investment Limited v Ministry of National Heritage & Culture & 3 Others [2016] eKLR the Court held that;
\"Analysis of Article 47 of the Constitution as read with the Fair Administrative Action Act reveals the implicit shift of judicial review to include aspects of merit review of administrative action. Section 7 (2) (f) of the Act identifies one of the grounds for review to be a determination if relevant considerations were not taken into account in making the administrative decision; Section 7 (2) (i) identifies abuse of discretion as a ground for review while Section 7(2) (k) stipulates that an administrative action can be reviewed if the impugned decision is unreasonable. Section 7(2) (k) subsumes the dicta and principles in the case of Associated Provincial Picture Houses Ltd v Wednesbury Corp. [1948] 1 KB 223 on reasonableness as a ground for judicial review.\"
74. In view of the foregoing, the contestations by the 1st and 2nd Interested party that it is the Applicant who bore the burden to prove the 3rd Interested Party\'s responsiveness to the tender are devoid of any merit and the Board fell into great error in walking along with them and reaching the decision it did.
75. They submit that the Applicant has ably demonstrated before this court that a relevant consideration was not taken into account resulting in procedural impropriety and unfairness to the Applicant and further, trampling on the applicant\'s legitimate expectation that upon presentation of his Request for review before the Board, all relevant material and documentation would be considered.
76. They further argue that The Applicant has established a case for the grant of judicial review orders of certiorari to quash the decision of the respondent on the one hand, and mandamus to direct the respondent to review the confidential documents and make a determination on the 2nd Interested Party\'s responsiveness to Tender No. KEBS/T007/2021-2022 for provision of staff medical insurance cover.
77. It is their case that indeed, the regulations give the evaluation committee exclusive power to reject a tender at various stages of the tender process in the circumstances specified by the Act and regulations.
78. The 3rd Interested party it is argued knew the qualifications of John Kimani, if it had any doubts or reservations, it should not have waited until after notification of the award. It should have made an inquiry under Section 75, and 76 PADA 2015 and ITT 7.1, 8, 23.2, 27.3 and 43 of the tender document.
79. In order to advance this argument, reliance is placed in the case of Republic v Public Procurement Administrative Review Board & 3 Others Ex-parte AAR Insurance Kenya Limited (2022) eKLR.
80. According to the 1st and 2nd Interested Parties the issue of determining the equivalent of requisite degree was not the mandate of the Respondent but that of the 1st Interested Party (that is, the Accounting Officer of the Procuring Entity).
81. Similarly, that it was the 2nd Interested Party’s mandate/discretion whether the marks could be pro-rated or not. This is because, it is the Procuring entity which knows what capabilities it required from the its suppliers of services and not the PARB.
82. It is also the P.E. further submission that the Review Board took into consideration some irrelevant factors (by purporting to calculate the marks scored by the 3\" Interested Party as 67.5/96% multiplied by 100 to get 70.3%) and disregarded relevant ones (like the lack serial and sequential pagination of the document) and further that the Board did not subject the 3rd Interested Party to a fair and transparent evaluation process.
83. During its application for review, the 3ª Interested Party is said to have filed an affidavit/statement in support of request for review sworn by John Kimani on 26th June 2024. At paragraph 8, 12 and 13 (page 7 and 8) it scored itself 85% by summation of the awarded marks and those which it believed it ought to have been awarded. The P.E responded in details to the evaluation criteria and how it arrived at 67.5%.
84. The 1st and 2nd Interested Parties argue that without warning or filing a further affidavit, on the hearing date, the 3rd Interested Party changed its score to 70.3% by claiming that the total score did not amount to 100% but 96%, therefore its score of 67.5% was actually 70.3%.
85. That is 67.5 divide by 96 multiplied by 100 amounts to 70.3%. As a result, the P.E was condemned unheard which is not only against the Fair Administrative Act Cap Laws of Kenya but also against the laws of natural justice.
86. The respondent it is argued allowed the P.E. to be lynched through trial by ambush. It should have taken note of the 3rd Interested Party’s submission but did not considered them since it was not properly before it for determination. It was not among the aspects/issues it had raised in its application, therefore neither the P.E nor the Interested Party (The First Assurance Company Limited) had made any submission on that aspect.
87. Further that clearly, the Respondent (PPARB) put into consideration things it should not have had in consideration while determining Application number 58 of 2024 and for this reason, also, this honourable court should quash the PPARB decision number 58 of 2024.
88. They argue that the Respondent erred in law by ordering the 1st and 2nd Interested Parties to comply with its orders within 14 days contrary to Section 175 (1), thereby committing an error of law.
89. Reliance is placed on Republic v. Public Procurement Administrative Review Board; Pwani University & 20thers Ex-Parte Guardforce Group Limited (12th May 2021). Justice Ogola at Paragraph 21 held as follows:
\"I am persuaded that the 14 days period is automatic stay to enable dissatisfied party to move to High Court for judicial Review Remedies.\"
90. The Respondent it is argued knew that its decision was open to Judicial Review within fourteen (14) days from its date but went ahead to compel the 1st and 2nd Interested Parties to comply with its decision before expiry of the 14 days statutory stay. In effect it compelled it to commit an error of law.
91. On the issue whether a power of Attorney must be registered to be valid. It is their case that the Tribunal found as fact that a Power of Attorney is a mandatory requirement and that this mandatory requirement is one of those that under the Public Procurement & Asset Disposal Act, cannot be derogated from.
92. It is argued that it so serious that a bidder CANNOT proceed to the next stage unless it (Power of Attorney) exists as part of the documentation. The PPRA is said to have made it a mandatory document for both sole-proprietors (mama mboga\'s) and corporate clients.
93. The 1st and 2nd Interested Parties pray to this court to compel the PPRA to clarify when a power of attorney is required in Public Procurement for movable property.
94. It is also their case that whereas the Tender conditions do not explicitly state that it has to registered, the registration of the Power of Attorney is a matter of law and not a matter of choice. Further that the law that governs it is the Registration of Documents Act and that with respect, the Board gave a shallow interpretation because the entire law cannot be quoted chapter and verse for the compulsory registration of the Power to be excused. Otherwise it would be an absurdity if the tender document required all laws to be quoted verbatim.
95. It is their case that Kenya Alliance have not brought forth any evidence to show that they registered the power of Attorney within two months of execution as required by law. The requirement of the Power of Attorney as a mandatory requirement was not put there by chance.
96. They argue that if the drafters intended it to be a matter of choice, then the Power of attorney would either have appeared in a different non mandatory section of the tender document or not featured at all.
97. It is also their case that The Government is being denied much needed revenue because the said Power of Attorney, in order to be produced in evidence as had been done, must be stamped and stamp duty paid as required by the Stamp duty Act.
98. The Interested Parties submit that the Power of Attorney, unless registered, can\'t be used as evidence since it is a compulsorily registrable document. While the Applicant entity has filed a Power of Attorney, they maintain that the Power of Attorney is ineffective unless registered. This is notwithstanding that the Tender document does not require the PA to be to be registered for effectiveness nor perceived necessity.
99. Further that on the tendering of the Power of Attorney as evidence, the Registration of Documents Act, as read with the Stamp Duty Act, require that unless the Power of Attorney is registered, it cannot be tendered as evidence.
100. Sections 4 and 9 of the Registration of Documents Act are said to require that all documents conferring any right, title or declare, limit or extinguish any right, title or interest, whether vested or contingent to, in or over immovable property be registered within two months after its execution, and if executed outside Kenya shall be registered within two months after its arrival in Kenya.
101. It is their case that a Power of Attorney is one of the documents that confer rights which means it needs to be registered before it can be used. They also argue that The Stamp Duty Act at Section 19 requires that no instrument chargeable with stamp duty shall be received in evidence in any proceedings whatsoever unless it is duly stamped. The power of attorney must as of necessity be stamped upon the stamp duty being paid under the Registration of Documents Act.
102. They also argue that the power of attorney must be registered in accordance with the law, and among others after payment of stamp duty so as to pass capacity. Reliance is placed in the case of Francis Mwangi Mugo Vs David Kamau Gachago [2017] eKLR This strict requirement it is argued goes to the legal capacity and is not a procedural defect therefore cannot be cured by Article 159 (2) (d of the Constitution.
103. According to them the position that the production of the power of attorney does not stop the trial court from examining and interrogating its probative value is maintained by courts in determining whether an unregistered power of attorney to deal with immovable property is valid in law and whether it be
used to transact business. Reliance is placed in the cases of Daniel Kipketer Rugut v Ernest Kayayi & 5 others [2021] eKLR and Kenneth Omolle Simbir & another v Daniel Ongor [2020] eKLR.
104. It is submitted that unless the Power of Attorney is registered it cannot be tendered as evidence. Without it, Kenya Alliance Insurance did not, in addition to other preconditions, meet the required threshold to move to the next stage of the tendering process.
105. It is also their case that this honourable Court considers this as a matter of great public importance and that remitting it back even one step in the evaluation process will re-open it to a long and protracted process making a bad situation worse.
106. It is their case that the Applicant has established a case for the grant of judicial review orders of certiorari to quash the decision of the respondent on the one hand, and mandamus to direct the 1st and 2nd Interested Party to reinstate the \"notification of intention to award\" issued to the Ex-parte applicant (3rd Respondent) and the unsuccessful tenderers dated 14* June 2024 and progress the tender No. MTRH/T/86/2023-2024 for Medical Insurance Cover to its logical conclusion.
107. The 1st and 2nd Interested parties pray for costs to be paid by the 3rd Interested Party.
3rd Interested Party’s Case;
108. In opposing the Application, the 3rd interested Party filed a Replying Affidavit and Further Affidavit dated 12th August 2024 and 21st August 2024.
109. It is its case that on 5th March 2024 Moi Teaching & Referral Hospital, the Procuring Entity and 2nd Interested Party herein together with its Chief Accounting Officer (the 1st Interested Party herein) invited sealed tenders in response to Tender No. MTRH/T/86/2023-2024 for Provision of Medical Insurance Cover. The 3rd Interested Party submitted a completed tender.
110. At the Preliminary Evaluation stage; all Tenders were meant to provide in their Bid Submissions a number of Documents enumerated under Section III of the Tender Document.
111. Aggrieved by failures by the 2nd Interested Party’s evaluation Committee to evaluate its tender in accordance with Tender Document as read with Section 80(2) of the Act and Article 227(1) of the Constitution at the technical evaluation stage; the 3rd Interested Party lodged at the Respondent a Request for Review under Section 167 of the Public Procurement and Asset Disposal Act 2015 being Request for Review No. 58 of 2024.
112. It was premised on the 1stand 2nd Interested Party’s failure to evaluate its bid in accordance with the provisions of the Tender Document as read with Section 80(2) of the Act and Article 227(1) of the Constitution at the Technical Evaluation stage.
113. The substantive issues of scoring alleged by the 3rd Interested Party on one hand the Respondent (Board) found that the total summation was 96 and not 100 and that the 67.5 marks as initially scored by the 2nd Interested Parties Evaluation Committee were to be 67.5 out of 96.
114. On the other hand; the Board observed that ONLY marks under Item Numbers 1 (iii), (v), ought to have been scored declining all of the 3rd Interested Party’s contentions on marks it alleged to have been erroneously denied.
115. The decision which the 3rd Interested Party challenged before the Respondent was that of the 1st and 2nd Interested Party (the Procuring Entity) whose very essence was beneficial to the Exparte Applicant herein in that it issued a Notification that the Ex parte Applicant was the successful Tenderer and that the 3rd Interested Party among other Tenders were unsuccessful giving reasons for failure to succeed.
116. It is its case that the outcome of the Request for Review that the 1st and 2ndRespondents failed to evaluate the 3rd Interested tender in accordance with the provisions of the Tender Document as read with Section 80(2) of the Act and Article 227(1) of the Constitution at the Technical Evaluation stage and the consequent Orders required the duo consisting the Procuring Entity to readmit the said tender to its Technical Evaluation stage for re-evaluation making good the anomalies the board pointed out with 14 days of the decision in accordance with the Tender Document, Regulations 2020, the Act and Article 227 of Constitution.
117. The 3rd Interested Party argues that there was a competent Request for Review before the Respondent and goes ahead to quote Section 167 of the Act, Schedule 14 of the Act read together with Regulation 203 and section 168 of the Act which mandates the Secretary to the Board to issue a notification of review and suspension of the proceedings.
118. It is its argument that the law prescribes the form to be used by aggrieved parties when lodging claims before the Respondent. Further that the Request for Review was in the format contemplated in the Act.
119. It is also its case that the Exparte Applicant has advanced a baseless Judicial Review on account that the Request for review was not merited for lack of authority to John Kimani (the 3rd Interested Party’s Principal Officer) and that the Affidavits he deponed were without authority.
120. The 3rd Interested Party’s case is that the principal Law i.e. the Procurement Act and the Rules 2020 do not make an affidavit as a prerequisite. It argues that the said Principal Officer had authority to sign the Supporting Affidavits to the Request for Review. Differently put that the Request for Review didn’t require supporting Documents or even the Affidavit to be appropriate.
121. It is urged that PPARB NO. 8 of 2023 - Toddy Civil Engineering Company Limited Vs Chief Executive Officer, Lake Victoria North Works Development Agency & Another (The Toddy Case) is distinguishable with this case in that in the said case; the issue was about an agent who had been given authority to sign Tender Documents instituting a Request for Review.
122. According to it in this matter; the instant Request for Review was instituted by the 3rd Interested Party’s Advocates who had authority to institute the same and supported by its principal Officers Supporting Affidavit.
123. It is their case that the said deponent merely stated without any proof that he had a telephone conversation with John Kimani who allegedly told him that he was not the one who signed the Supporting Affidavit and that he dint have authority. This is to be juxtaposed with the tangible evidence by the 3rd Respondent in the authority attached to the affidavit dated 12th July 2024 which was sealed by the 3rd Interested Party’s Seal besides being signed by two directors.
124. Further that it was well within the Respondents powers to reject the allegation as unsubstantiated and that the principal the 3rd Interested Party has reiterated this position through and through and the agent never swore any affidavit to denounce the Affidavits.
125. The 3rd Interested Party argues that the Respondent acted well within its Statutory mandate and also that the Ex parte Applicant is interpreting Section 175 to mean that whenever the Respondent made its decision i.e. on the 19th July 2024; the 14-day window given to any party aggrieved to file for Judicial Review served as an automatic stay.
126. It is its case that The procuring entity was statutorily bound to conduct re-evaluation as directed by the Board as this process could only be stayed after a party moved the High Court sought, and obtained leave to institute Judicial
127. Review Proceedings with consequent Orders expressly staying the procurement process including the decision of the board.
128. It is their case that the implementation of the Board’s decision did not bar or prevent any party from filing judicial review proceedings at the High Court thus absence of an illegality of any nature.
129. According to the 3rd Interested Party the issue of pagination and Power of Attorney by were raised for the first time by the procuring entity at the hearing of the Request for Review before the Respondent yet the same ought to have been raised in the Notification of Intention to Award as a reason to disqualify it pursuant to Section 87 (3) of the Public Procurement & Asset Disposal Act. The Respondent its argued, never went into the root as being an issue for determination.
130. It is its case that the Respondent acted well within its powers under the Act and arrived at a fair decision which this honorable court should uphold.
131. It argues that even when the Respondent found the 3rdInterested Party’s complaint before it to be meritorious; it acted in an extremely considered manner as it exercised its powers and discretion sparingly and instead of granting the Orders as sought; it referred the 3rd Interested Party’s Tender back to the 1st and 2nd Interested Party’s Evaluation Committee for readmission at the technical stage and re-evaluation.
132. Under Section 67 (1) as read with 67 (3)(e) of the Act on Confidentiality; the Chief Accounting officer of a Procuring Entity and any employees of the said entity as well as the Board – which is the recipient of any information relating to procurement evaluation, clarification of tenders or quotations or any of the contents thereof is barred from disclosing any of such to 3rd parties the exparte applicant included.
133. The 3rd Interested Party argues that The Procuring Entity never sought for any Judicial Review before this honorable court and this is indicative of the fact that it was satisfied by the Respondent’s finding.
134. The 3rd Interested Party invites the honourable Court to paragraph 162 of the Respondent’s Decision read together with paragraph 22 of the Respondent’s Replying Affidavit dated 14thAugust 2024 clearly indicated that the issue of the Power of Attorney came up during the hearing as it was raised by the Procuring Entity’s counsel and notwithstanding the same not to have been in contest; the Respondent in its thoroughness took cognisance of the arguments raised as pertaining pagination.
135. This was a mere belated desperate attempt to find justification post fact to have the 3rd Interested Party barred having found no answer to the critical question on why it arrived at the score of 67.5 % when the marks were 67.5 out of 96 and not 100.
136. It is its case that the Procuring entity appears to have been aggrieved with the Respondent’s decision merely because while implementing it; it could have an adverse effect of their unfairly preferred Tenderer could not be successful.
137. The 3rd Interested Party refers to the case of Supermarine Handling Services Ltd vs Kenya Revenue Authority, Civil Appeal No. 85 of 2006,where the Court explained the circumstances that would lead an appellate court to interfere with the trial court’s exercise of discretion. Reliance is also placed in Richard Kuloba, Judicial Hints on Civil Procedure, 2nd Edition, page at page 101, on the issue of costs.
138. The 3rd Interested Party argues that the costs should be borne by the Exparte Applicant, and the 1st and 2nd Interested Parties.
ANALYSIS AND DETERMINATION
139. Upon considering the parties pleadings and rival arguments, the law and the authorities relied upon by the parties, this court finds the following to be the issues for determination:
i. Whether orders of judicial review should be granted.
ii. Whether the Ex Parte Applicant is entitled to costs.
Whether orders of judicial review should be granted.
140. The applicant must persuade the court that its case falls within the principles as settled in the case of Pastoli vs Kabale District Local Government Council & Others, (2008) 2 EA 300, where in 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 provisions of a law or its principles are instances of illegality….
Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, 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 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.”
141. Parties have embraced divergent positions in so far as the issues of the power of Attorney, pagination of documents and affidavit is concerned.
142. Sections 4 and 9 of the Registration of Documents Act require that all documents conferring any right, title or declare, limit or extinguish any right, title or interest, whether vested or contingent to, in or over immovable property shall be registered every document whose registration is compulsory shall be registered within two months after its execution, and if executed outside Kenya shall be registered within two months after its arrival in Kenya.
143. The Stamp Duty Act at Section 19 stipulates that no instrument chargeable with stamp duty shall be received in evidence in any proceedings whatsoever unless it is duly stamped.
144. The Tribunal found as a fact that a Power of Attorney is a mandatory requirement. This mandatory requirement is one of those that under the Public Procurement & Asset Disposal Act, cannot be derogated from.
145. It is so serious that a bidder cannot proceed to the next stage unless a Power of Attorney exists as part of the documentation.
146. The 1st and 2nd Interested Party pray to this court to compel the PPRA to clarify when a power of attorney is required in Public Procurement for movable property.
147. Whereas the Tender conditions do not explicitly state that it has to be registered, the registration of the Power of Attorney is a matter of law and not a matter of choice.
148. While the Applicant entity has filed a Power of Attorney, the respondent maintains that the Power of Attorney is ineffective unless registered.
149. On the question of pagination, The 3rd interested party is of the view that the issue of pagination ought to have been raised in the Notification of Intention to Award as a reason to disqualify the 3rdInterested Party and under Section 87 (3) of the Public Procurement & Asset Disposal Act the same ought to have been disclosed.
150. The manner in which the issues around the of the Affidavit, the pagination and power of Attorney are coined by the parties largely touch on the merits of the decision that would form grounds for appeal. Judicial intervention in Judicial Review matters is limited to cases where the decision was arrived at arbitrarily, capriciously or mala fide or as a result of unwarranted adherence to a fixed principle or in order to further an ulterior or improper purpose, or where the functionary misconceived the nature of the discretion conferred upon him and took into account irrelevant considerations or ignored relevant ones; or where the decision of the functionary was so grossly unreasonable as to warrant the inference that he had failed to apply his mind to the matter.
151. It is this court\'s finding that the Respondent took cognisance of the issue of the pagination and power of Attorney and exercised its discretion on the Affidavit and rendered itself.
152. In the case of Dande & 3 others v Inspector General, National Poloce Service & 5 others (Petition 6 (E007), 4 (E005) & 8 (E010) of 2022 (Consolidated)) [2023] KESC 40 (KLR) (16 June 2023) (Judgment) Neutral citation: [2023] KESC 40 (KLR) the Supreme Court held that:
“81.The entrenchment of judicial review in the Constitution has led to the emergence of divergent views on the scope of judicial review. The first group postulates that judicial review is concerned with the process a statutory body employs to reach its decision and not the merits of the decision itself while the second group opine that under the current constitutional dispensation, courts could delve into both procedural and merit review in resolving disputes.
153. A party who was dissatisfied with the finding on the issue of the affidavit, the pagination and the Power of Attorney should have lodged an appeal as opposed to inviting this court to carry out a merit analysis.
154. This court shall not delve into the merits of these issues and I so hold.
This court will now turn to the issue of whether or not the Applicant has made out a case for the grant of the order of certiorari.
155. In the case of Sunchan Investment Limited v Ministry of National Heritage & Culture & 3 Others [2016] eKLR. the Court held that;
\"Analysis of Article 47 of the Constitution as read with the Fair Administrative Action Act reveals the implicit shift of judicial review to include aspects of merit review of administrative action.
156. Section 7 (2) (f) of the Act identifies one of the grounds for review to be a determination if relevant considerations were not taken into account in making the administrative decision; Section 7(2) (i) identifies abuse of discretion as a ground for review while Section 7(2) (k) stipulates that an administrative action can be reviewed if the impugned decision is unreasonable. Section 7(2) (k) subsumes the dicta and principles in the case of Associated Provincial Picture Houses Ltd v Wednesbury Corp. [1948] 1 KB 223 on reasonableness as a ground for judicial review.
157. In the impugned decision, the Respondent gave directions to the Accounting Officer of the Procuring Entity to re-admit the Applicant\'s tender to the Technical Evaluation(Where it had failed to procced from) stage for re-evaluation and make good the anomalies that the Board has pointed out herein in the procurement process of the subject tender within 14 days in accordance with the provisions of the Tender Document, Regulations 2020, the Act and Article 227 of the Constitution within 14 days from the date hereof while taking into consideration the Board\'s findings in this Request for Review.
158. Section 175 of the PPAD Act provides thus: “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”
159. This court notes that The Respondent gave compliance timelines that would in effect run concurrently and within the period in which an application for Judicial Review should be filed under Section 175 of The PPAD Act.
160. The Respondent (PPARB) misdirected itself in ordering the 1st and 2nd Interested Parties to comply with its orders within 14 days contrary to Section 175 (1), thereby committing an error of law.
161. The 3rd Interested Party’s argument that The procuring entity was statutorily bound to conduct re-evaluation as directed by the Board is misplaced. You cannot put anything on nothing. The direction of the Board was tainted with an illegality in that it amounted to denying the Applicant the window to approach the High Court for judicial review. This in effect took away the Applicant’s right to fair hearing under Article 47 of the Constitution. The Applicant had a legitimate expectation that it could harness the fourteen (14) days to seek redress in the High Court. This was not to be.
162. An ailing procurement process can only be stopped after a party obtains leave to institute Judicial Review Proceedings with consequent Orders expressly staying the procurement process including the decision of the board.
163. The 3rd Interested Party’s argument that the implementation of the Board’s decision did not bar or prevent any party from filing judicial review proceedings at the High Court is misplaced. Whether or not an aggrieved party elects to pursue judicial review proceedings at that stage or not is a very different thing altogether.
164. The fact remains that the Board generated an illegality and all consequential activities in the name of complying with ailing directions cannot culminate nor lead to a legally binding decision and I so hold.
165. In so finding, this court is guided by the case of Republic v. Public Procurement Administrative Review Board; Pwani University & 20thers Ex-Parte Guardforce Group Limited (12th May 2021) wherein Justice Ogola at Paragraph 21 held as follows;
\"I am persuaded that the 14 days period is an automatic stay to enable a dissatisfied party to move to High Court for judicial Review Remedies.\"
166. In the instant suit, The Respondent knew that its decision was open to the statutory Judicial Review process or stand still period of fourteen (14) days from the date of its decision but still went ahead to compel the 1st & 2nd Interested Parties to comply with its decision before the expiry of the 14 days.This court finds that the applicant has established a case for the grant of the order of certiorari to quash the impugned decision as sought in prayer 1 of its Application.
167. In effect it compelled 1st & 2nd Interested Parties to commit an error of law at the expense of the procurement process. This cannot be said to be in keeping with Articles 47 and 227 of the Constitution.
168. The applicant also seeks orders of Judicial review Order of Mandamus to compel the 1st Interested Party to terminate or cancel the request for best and final offer (BAFO) proceedings commenced on 29th July, 2024 and a Judicial review Order of Mandamus to compel the 1st Interested Party to prepare and to execute the Contract for Provision of Medical Insurance Cover (Tender No. MTRH/T/86/2023-2024) in line with the award decision dated 14th June, 2024.
169. The HALSBURY’S LAW OF ENGLAND, 4th Edition Volume 1 at page 111 FROM PARAGRAPH 89 treatise says:
“The order of mandamus is of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual.”
170. As will be borne by the final determination of this suit, this court makes a finding that the Respondent is a specialized central independent body mandated to review, hear and determine tendering disputes as opposed to the court and the orders of mandamus cannot be granted as sought.
171. The Applicant also sought for an order of Prohibition to prohibit the 1st and 2nd Interested Parties from evaluating, considering the evaluation report and the professional opinion thereof and awarding any best and final offer (BAFO) received pursuant to the 1st Interested Party’s request for best and final offer (BAFO) referenced ELD/MTRH/SSE/7/2/VOL.X1/2016 and dated 29th July, 2024.
172. In determining this issue, I am guided by the case of Republic v Principal Kadhi, Mombasa Ex-parties Alibhai Adamali Dar & 2 others; Murtaza Turabali Patel (Interested Party) [20221 eKLR, where the Court rendered itself thus:
\"The Order of \"Prohibition\" issues where there are assumptions of unlawful jurisdiction or excess of jurisdiction. It\'s an order from the High Court directed to an inferior tribunal or body as in this case the Kadhi’s Court. Its functions is to prohibit and/or forbids encroachment into jurisdiction and further to prevent the implementation of orders issued when there is lack of jurisdiction.
\"Although prohibition was originally used to prevent tribunals from meddling with cases over which they had no jurisdiction, it was equally effective and equally often used, to prohibit the execution of some decision already taken but ultra vires. So long as the tribunal or administrative authority still had power to exercise as a consequence of the wrongful decision, the exercise of that power could be restrained by prohibition. Certiorari and prohibition frequently go hand in hand, as where certiorari is sought to quash the decision and prohibition to restrain its execution. But either remedy may be sought by itself.\"
173. In the case of Kenya National Examination Council versus Republic ex parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR, the Court stated the grounds upon which such an order of prohibition may issue as follows;
“What does an order of prohibition do and when will it issue\" It is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only for excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It does not, however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings – See HALSBURY&39; S LAW OF ENGLAND, 4th Edition, and Vol.1 at pg. 37 paragraphs 128”
174. Having made a finding that the applicant has made out a case for the grant of an order of certiorari as read alongside the principles on prohibition as enunciated out in the two cases above, I am persuaded that the Applicant has made out a case for the grant of an order of prohibition.
Costs:
175. In settling the issue of costs, this court is guided by Richard Kuloba’s, Judicial Hints on Civil Procedure, 2nd Edition, page at page 101, the author authoritatively states as follows on the issue of costs: -
“The law of costs as it is understood by Courts in Kenya, is this, that where a plaintiff comes to enforce a legal right and there has been no misconduct on his part-no omission or neglect, and no vexatious or oppressive conduct is attributed to him, which would induce the Court to deprive him of his costs- the Court has no discretion and cannot take away the plaintiff’s right of costs. If the defendant, however innocently, has infringed a legal right of the plaintiff, the plaintiff is entitled to enforce his legal right and in the absence of any reason such as misconduct, is entitled to the costs of the suit as a matter of course”.
At page 101 of the same book, Kuloba authoritatively states as follows:-
“The law of costs as it is understood by courts in Kenya, is this, that where a plaintiff comes to enforce a legal right and there has been no misconduct on his part-no omission or neglect, and no vexatious or oppressive conduct is attributed to him, which would induce the court to deprive him of his costs-the court has no discretion and cannot take away the plaintiffs right to costs. If the defendant, however innocently, has infringed a legal right of the plaintiff, the plaintiff is entitled to enforce his legal right and in the absence of any reason such as misconduct, is entitled to the costs of the suit as a matter of course”.
176. In the case of Orix ( K) Limited vs Paul Kabeu & 2 others it was held inter alia:-
“…court should have been guided by the law that costs follow the event, and the plaintiff being the successful party should ordinarily be awarded costs unless its conduct is such that it would be denied costs or the successful issue was not attracting costs. None of the deviant factors are present in this case and the court would still have awarded costs to the plaintiff, which I do.”
177. In the instant case, it is my finding that each party shall bear its costs.
Disposition;
The applicant has partly made out a case for issuance of the orders.
Order:
1. An Order of Certiorari to remove to the High Court quashing the Respondent’s proceedings in the Request for Review No. 58/2024 and the decision thereof dated 19th July, 2024 is hereby issued.
2. The prayer for an Order of Certiorari to remove to the High Court the 1st and 2nd Interested Parties’ re-evaluation report, professional opinion, award decision and the request for best and final offer (BAFO) referenced ELD/MTRH/SSE/7/2/VOL.X1/2016 and dated 29th July, 2024 for the purposes of being quashed is declined.
3. An Order of Prohibition to prohibit the 1st and 2nd Interested Parties from evaluating, considering the evaluation report and the professional opinion thereof and awarding any best and final offer (BAFO) received pursuant to the 1st Interested Party’s request for best and final offer (BAFO) referenced ELD/MTRH/SSE/7/2/VOL.X1/2016 and dated 29th July, 2024 is allowed.
4. The prayer for an Order of Mandamus to compel the 1st Interested Party to terminate or cancel the request for best and final offer (BAFO) proceedings commenced on 29th July, 2024 is disallowed.
5. The prayer for an order of Mandamus to compel the 1st Interested Party to prepare and to execute the Contract for Provision of Medical Insurance Cover (Tender No. MTRH/T/86/2023-2024) in line with the award decision dated 14th June, 2024 is disallowed.
6. Each party shall bear its costs.
7. The Request for Review No. 58/2024 shall be readmitted for hearing and determined within 7 days of today’s date.