BACKGROUND;
1. The Application before this Court is the Applicant’s Notice of Motion application dated 7th October, 2024 brought under Under Article 23 (3) (f), 47 and 165 (6) (7) of the Constitution of Kenya, 2010, Section 4 (3) of the Fair Administrative Action Act, 2015 and Order 53 Rule 3 of the Civil Procedure Rules, 2010 and all other enabling provisions of the law.
2. The application seeks the following orders;
1) An 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 28th September, 2024 for the purposes of being quashed.
2) 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.
3) Costs of the suit.
3. The Application is supported by a statutory statement dated 2nd October 2024 and verifying affidavit sworn by Stephen Lokonyo of even date.
4. The Applicant’s case is 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) where at page 29 to 31 of 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 Applicant avers that it submitted a Tender in response to the said Tender Document for Provision of Medical Insurance Cover (Tender No. MTRH/T/86/2023-2024) which was opened together with others on 28th March, 2024 and on 14th June, 2022 the 1st Interested Party notified the Applicant of its intention of award its tender.
6. The Applicant deponed that 28th June, 2024 the 3rd Interested Party filed Request for Review No. 58 of 2024 wherein the 1st Interested Party and itself filed Responses and preliminary objections to the Request for Review and the 3rd Interested Party filed a Further Affidavit.
7. The Applicant posits that from the 1st Interested Party’s Response to the Request for Review, it was evidently clear that the 3rd Interested Party’s Tender did not meet the 70 marks threshold in the technical evaluation stage to proceed to financial evaluation and 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 considered the same 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
8. The Applicant continues to state that on 19th July, 2024, the Respondent delivered its decision to nullify and set aside the 1st Interested Party’s notification of intention to award the Applicant’s Tender and directed to re-admit the 3rd Interested Party’s Tender and re-evaluate it at the technical evaluation stage.
9. The Applicant on 1st August,2024 filed a Judicial Review suit challenging the decision of the Respondent to which the Court delivered its decision on 16th September, 2024 with orders inter alia:
“the Request for Review No. 58/2024 shall be readmitted for hearing and determined within 7 days of today’s date.”
10. The Applicant deponed that subsequent to the Judgement dated 16th September, 2024, it filed an application for review of the said orders on 18th September,2024 and sought conservatory orders of the re-hearing of the Request for Review scheduled for 19th September,2024 to which the court issued an order of stay on 18th September,2024 at 22.06 hours.
11. The Applicant further deponed that on Monday, 23rd September, 2024 at 10:30AM, when the matter was scheduled for mention to confirm compliance with court directions on hearing and disposal of the application, the Ex parte applicant’s advocate withdrew the said order thereby vacating the stay orders and the Respondent set down the re-hearing of the Request for Review on 27th September, 2024,
12. The Applicant avers that it appeared and relied on all previous documents filed and arguments filed but added a notice of preliminary objection dated 26thSeptember, 2024.
13. It is the Applicant’s case that the Respondent delivered its decision on Saturday 28th September,2024 at 4. 22pm which decision was decision-making process was tainted by illegality, irrationality and procedural impropriety for the following reasons:
a. The Respondent re-admitted, re-heard and re-determined the Request for Review outside the timelines prescribed by the Court in JR No. E170 of 2024 R-v- Public Procurement Administrative Review Board and others thereby acting without jurisdiction rendering the whole proceedings and decision of 28th September,2024 null and void. Whereas, the court issued a conservatory order of stay of rehearing scheduled for 19th September,2024 through an application for review filed by the Ex parte applicant, that application for review was withdrawn on 23rd September,2024 at 10.30 AM thereby paving way for rehearing and determination which was in the view of the developments supposed to be done by 26th September, 2024. The impugned decision here at was arrived to on 28th September,2024, well outside the court timelines.
b. The meaning and import of The Respondent’s directive for compliance within 21days from the date of the decision is that the Procuring Entity is required to comply within timelines that would in effect run concurrently and within the period in which an application for Judicial Review should be filed under section 175(1) of the of the Public Procurement and Asset Disposal Act,2015.
c. The Respondent’s directive on period within which to comply has not taken into consideration the automatic 14-day statutory stay, and therefore the orders could only have been that compliance be there after the lapse of the 14 days and not within the 14 days as purported thereby rendering the whole proceedings irredeemably incompetent.
d. Failure to take into account that the 3rd Interested Party’s Authority to Sue dated 25th June, 2024 was not executed by either two authorized signatories or a director in the presence of a witness who attests the signature;
e. 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;
f. 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;
g. 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;
h. Breached Section 37(2) of the Companies Act, 2015 and Regulation 203(2)(b) of the Public Procurement and Asset Disposal Regulations, 2020 is fatally defective;
i. 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;
j. 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;
k. Taking into account consideration pagination and power of attorney of the 3rd Interested Party that were irrelevant in the technical evaluation stage;
l. 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;
m. Amendment of the 1st Interested Party’s Technical Evaluation Criteria in the Tender Document without lawful authority;
n. The Respondent found as a matter of fact that a Power of Attorney is a mandatory requirement, that is as per paragraph 209, 210 of the decision, however it illegally found that the same was compliant with the Mandatory Tender Requirement No. 10 and 12 yet the same had admittedly not met the tenets of Sections 4 and 9 of the Registration of Documents Act and was non-compliant Section 19 of the Stamp Duty Act as regards registration and payment of stamp duty;
o. The Respondent's decision to direct the re-evaluation of the tender only at the Technical Evaluation Criteria is tainted with unfairness and bias as the 3rd Interested Party did not pass stage one, which was the preliminary/mandatory evaluation stage specifically on pagination and Power of Attorney. Stage one of the Tender Document which was the Preliminary/Mandatory evaluation Criteria made it a mandatory requirement that the bidder’s documents (including attachments) MUST be chronologically serialized. Secondly, there was a requirement to have a Letter from the firm giving authority to the person signing the tender to represent the firm (Power of Attorney), without material deviation, reservation, or omission. The document shall be duly signed and witnessed;
p. The Respondent was biased in that it re-admitted and re-heard the matter before the same Board members that heard the first Request for Review. It’s impractical nay impossible that the Respondent would have come out with a different reasoning and decision from the findings of its first decision. Therefore, the Respondent re-heard the Request for Review with a predetermined mindset and therefore was biased.
q. The decision to re-admit the 3rd Interested Party’s tender to the Technical Evaluation stage alone for re-evaluation and purportedly make good the anomalies that the Respondent has pointed out is unreasonable since the 3rd Interested Party did not meet the threshold on the requirements set out in the Tender Document and more specifically did not pass the Preliminary/Mandatory evaluation on pagination and Power of Attorney and therefore any reasonable decision would have to order for re-evaluation right from the Preliminary/mandatory evaluation stage.
r. 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 1st, Interested Party’s Evaluation Report with respect to evaluation criteria 1, 2 and 11 of the Tender Document.
s. A glean at the Hearing Notice dated 25th September, 2024 scheduling the matter for re-hearing for 27th September, 2024discloses that the same was only served upon the 3rd Interested Party and 1st Interested Party to the exclusion of the Applicant. This constitutes gross procedural impropriety intended to achieve trial by ambush and thereby disadvantage the Applicant. This open bias, ill will and hostility informs the decision that was arrived at. The decision to set aside the Notification of Award to the Applicant and the direction for re-admission of the tender at the Technical Evaluation Stage alone had long been made before the purported hearing and the refusal to serve a Hearing Notice is a clear affirmation of that very fact.
14. The Applicant filed written submissions dated 16th October, 2024.
15. The Applicant submits that two issues emerge for determination before this Honourable court
a) Whether this matter is Res Judicata HCJR/E170/2024 First Assurance Company Limited v Public Procurement Administrative Review Board and Moi Teaching and Referral Hospital and 2 others;
b) Whether the Applicant has made out a case for grant of Judicial Review Orders?
16. On the issue on res judicata, the Applicant that the doctrine of res judicata is not novel. Its genesis is in Section 7 of the Civil Procedure Act, Cap. 21 of the Laws of Kenya which provides that:
“No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such court.”
17. It further submits that the Supreme court has rendered itself on the threshold for proving the applicability of the doctrine in the case of John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others [2021] eKLR where the court held: -
[86] Were state the elements that must be proven before a court may arrive at the conclusion that a matter is res judicata. For res judicata to be invoked in a civil matter the following elements must be demonstrated:
a) There is a former Judgment or order which was final;
b) The Judgment or order was on merit;
c) The Judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and
d) There must be between the first and the second action identical parties, subject matter and cause of action
18. It is the Applicant’s submission that whereas the parties in the suit before this court are the same as was in HCJR/E170/2024, the subject matter and issues pleaded and material before this court for determination are fundamentally different from what was determined in HCJR/E170/2024; that there is a stark contrast in content the two matters. This court has been called upon to determine the following new issues inter alia:
(a) Whether the Respondent committed an illegality when it exceeded the jurisdiction provided by the court orders of 16th September,2024 by hearing the matter outside the prescribed timelines; This is not an issue that was handled in HCJR/E170/2024.
(b) Whether as a consequence of the contravention of the court orders of 16th September,2024, the Respondent breached section 175(6) of the Public Procurement and Asset Disposal Act, 2015 and therefore committed an illegality; this is not an issue that was handled in HCJR/E170/2024.
(c) Whether the Respondent’s decision of 28th September, 2024 directing the Accounting Officer of the Procuring Entity to re-admit the 3rd Interested Party’s tender to the Technical Evaluation Stage for re-evaluation within 21 days from the date hereof is ultra vires of section 175(1) of the Public Procurement and Asset Disposal Act,2015; in HCJR/E170/2024, the court handled compliance period of 14 days and not 21 days as has been pleaded in this new matter.
(d) Whether the Respondent acted irrationally and breached procedure to order re-admission of the 3rd Interested Party’s tender to the Technical Evaluation Stage alone for reevaluation instead of directing the whole process to start from inception especially the Preliminary/Mandatory Evaluation where the 3rd Interested Party had failed.
(e) Whether the decision to redirect the re-evaluation only at the Technical Evaluation Stage is biased, unfair and unlawful.
(f) Whether it was unreasonable for the same biased Board Panel to rehear the same matter.
(g) As of fact the decision being challenged is the decision dated 28th September,2024 and not the earlier decision dated 29th July,2024.
19. On the second issue for determination, the Applicant in its submission as to whether the Applicants’ applicant merits Judicial Review reliefs cites the case of Pastoli vs Kabale District Local Government Council & Others [2008] 2 EA 300 where the court held as follows: -
“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: See Council of Civil Service Union v Minister for the Civil Service [1985] AC 2; and also, Francis Bahikirwe Muntu and others v Kyambogo University, High Court, Kampala, miscellaneous application number 643 of 2005 (UR).
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: Re An Application by Bukoba Gymkhana Club [1963] EA 478 at page 479 paragraph “E”.
Procedural impropriety is when there is failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision. (Al-Mehdawi v Secretary of State for the Home Department [1990] AC 876).”
20. It is the Applicants’ submission that The Respondent acted without jurisdiction prescribed by court orders of 16th September, 2024 as it re-admitted, re-heard and re-determined the Request for Review outside the timelines prescribed by the Court in JR No. E170 of 2024 R-v- Public Procurement Administrative Review Board and others thereby acting without jurisdiction rendering the whole proceedings and decision of 28th September,2024 null and void resulting in the impugned proceedings and decision on 28th September, 2024.
21.The Applicant contends that the Respondent concedes under paragraphs 117 of its decision that the conservatory order of stay of proceedings was issued on the 18th September,2024 at 22.06 hrs. and the same lapsed on 23rd September,2024 at 10.30 am when the application for review was withdrawn, however, and ironically so, proceeds to render itself under paragraph 119 thereof that it became aware of the lapse of the order on 24th September, 2024, a day after the withdrawal of the review application and hence proceeds to exclude the 23rd September, 2014 and 24th September, 2024 in its computation of days in purported compliance with section 57 of the Interpretation and General Provisions Act, Chapter 2 of the Laws of Kenya.
22. The Applicant submits that the filing of a suit or application and hearing it out of time and without leave of Court is not just a procedural defect and cannot be a technicality curable under Article 159 (2) (d) of the Constitution and cites the case of Mutia Muindi ya Matiba Auctioneers –vs- CFC Stanbic Ltd & Ano [2015] eKLR, where it was held that:
“Time bar is both procedural and substantive issue which goes to the jurisdiction of the Court. The corollary of the time bar is that the authority of Court over the dispute is extinguished.”
23. It also relies on the case of Mutia Muindi ya Matiba Auctioneers –vs- CFC Stanbic Ltd & Ano [2015] eKLR, it was held that:
“Time bar is both procedural and substantive issue which goes to the jurisdiction of the Court. The corollary of the time bar is that the authority of Court over the dispute is extinguished.”
24. The Applicant further submits that the Request for rehearing the Review No. 58/2024 pursuant to the Court orders dated16th September,2024 was mandatory and ought to have been heard and concluded by 26thSeptember,2024. In the absence of compliance of the said court orders, it means that the impugned rehearing was not sanctioned by any law or court order and therefore the Respondent acted ultra vires.
25. The Applicant cites the case of Okoiti & 3 Others v Anne Waiguru, the Cabinet Secretary, Devolution and Planning & 5 Others (Petition 42 & 27 of 2014 (Consolidated)) [2021] KEELRC 2306 (KLR) (30th July, 2021) (Judgment) where the court held on what amounts to an ultra vires act as follows:
“An act is ultra vires when the decision-making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without Jurisdiction or ultra vires, or contrary to the provisions of a law or its principles renders the decision made laced with illegality.”
26. The Applicant also submits that Section 175(6) of the Public Procurement and Asset Disposal Act,2015 is instructive that any decision arrived at in breach of orders of the High Court is null and void and thus proceedings of 27th September, 2024 and determination of 28th September,2024 are in violation of the provision of the said section.
27. The Applicants argue that by dint of Section 175(1) of the Public Procurement and Asset Disposal Act, 2015 the proceedings and impugned decision by Respondent irredeemably incompetent.
28. It is also the Applicants’ submission that Respondent acted irrationally to order re-admission of the 3rd Interested Party’s tender to the Technical Evaluation Stage alone for reevaluation instead of directing the whole process to start from inception and that decision to direct the re-evaluation of the tender only at the Technical Evaluation Criteria tainted with unfairness and bias as the 3rd Interested Party did not pass stage one.
29. The Applicant also posits that Respondent’s decision was not compliant with Article 47(1) of the Constitution of Kenya as read with section 4(1)(2)(3) of the Fair Administrative Action Act in that the same was unlawful and unreasonable for flouting sections 4 and 9 of the Registration of Documents and section 19 of the Stamp Duty Act.
30. If further submits that it was unreasonable and illogical for the Respondent to re-admit and re-hear the matter before the same Panel of Board members that heard the first Request for Review and a breach of Article 50(1) of the Constitution of Kenya.
31. The Applicant thus submits that its application has merit prays that this honorable court to grant the prayers for certiorari and mandamus with costs.
Respondent’s case;
32. In opposition to the Applicants’ Application, the Respondents filed a notice of preliminary objection dated 15th October, 2024 on the ground that: -
i. The Applicant’s Judicial Review Application dated 7th October 2024 and the entire proceedings in this suit is res judicata and offends the express provisions of Section 7 of the Civil Procedure Act Cap 21 Laws of Kenya as issues raised have been heard and determined to finality by this Honourable Court in HCJR/E170/2024 First Assurance Company Limited v Public Procurement Administrative Review Board and Moi Teaching and Referral Hospital and 2 Others
33. The Respondent also filed Replying Affidavit dated 15th October, 2024 sworn by James Kilaka and written submissions dated 5th November, 2024.
34. The Respondent deponed that the Application before this court is an appeal against the Respondent’s Decision dated 28th September 2024 with respect to the findings of the Respondent on the Request for Review No. 58 of 2024 and is being disguised as a judicial review application.
35. The Respondent contends that the Application dated 7th October 2024 and entire proceedings in this suit is res judicata and offends the express provisions of Section 7 of the Civil Procedure Act Cap 21 Laws of Kenya as issues raised have been heard and determined to finality by this Honourable Court in HCJR/E170/2024 First Assurance Company Limited v Public Procurement Administrative Review Board and Moi Teaching and Referral Hospital and 2 Others where this Honourable Court rendered itself on 16th September 2024 and on 23rd September 2024 where it ordered that the court is functus officio and its Judgment delivered on 16th September 2024 in HCJR/E170/2024 was final and binding upon parties.
36. The Respondent avers that the 28th June 2024, the 3rd Interested Party herein filed a Request for Review Application No. 58 of 2024 dated 26th June 2024 before the Respondent (hereinafter “Request for Review No. 58 of 2024”) seeking the following orders:
a)The Decision of the Procuring Entity vide its Letter dated 14th June 2024 and referenced ELD/MTRH/SSE/7/4/VOL.XII/2017 issued on 15th June 2024 at 6.05 pm being the Notification of Intention to Award for Provision of Insurance Services for Moi Teaching & Referral Hospital be and are hereby declared null and void and the same be and are set aside.
b)An Order that the Procuring Entity is hereby directed to re-admit and re-evaluate the Applicant’s bid in the financial stage alongside other entities which made it to financial stage in accordance with the Act and the Constitution.
c)That the 1st and 2nd Respondent (Procuring Entity) be ordered award the Tender to the Applicant and or enter into negotiations with the Applicant being the Tenderer with the lowest bid.
d)An Order directing the Procuring Entity and its Chief Accounting Officer to pay costs of the Review; and
e)Any other necessary orders as are necessary for the ends of justice and under the circumstances of the case herein as provided by Section 173 of the Public Procurement and Asset Disposal Act.
37. The Responder further deponed that the Respondent in its Decision dated 19th July 2024 in Request for Review No. 58 of 2024 considered the parties’ pleadings, documents, written and oral submissions, the list and bundle of authorities together with the confidential documents submitted to the Board pursuant to Section 67(3) (e) of the Act and found the following issues called for determination:
a) Whether the 3rd Respondent’s Preliminary Objection as filed is proper.
b) Whether the 3rd Respondent’s has substantiated its case with respect to the allegation that Mr. John Kimani does not have authority to sign, swear or make statements in support of the instant Request for Review on behalf of the Applicant as deponed in its Affidavit sworn on 15th July 2024 by Stephen Lokonyo.
c) Whether the Board has jurisdiction to hear and determine the instant Request for Review;
In determining the third issue, the Board shall make a determination on the following sub-issues:
a) Whether the instant Request for Review has been instituted within the statutory period of 14 days of notification of award in accordance with Section 167(1) of the Act read with Regulation 203(2)(c)(ii) of Regulations 2020 to invoke the jurisdiction of the Board;
b) Whether the Applicant has locus standi before the Board.
Depending on the determination of the third issue;
d) Whether the Evaluation Committee evaluated the Applicant’s tender submitted in the subject 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.
e) What orders should the Board grant in the circumstances?
38. It followed that the Respondent in exercise of the powers conferred upon it under the Public Procurement and Asset Disposal Act (hereinafter referred to as “the Act”) made the following final orders with respect to Request for Review No. 58 of 2024:
A. The 3rd Respondent’s Preliminary Objection dated 10th July 2024 and filed on 12th July 2024 and the Preliminary Objection contained in the 1st and 2nd Respondent Statement Against the Application for Request for Review sworn on 5th July 2024 by Evans Kipchumba Kiprotich and filed on even date be and is hereby dismissed.
B. The Notification of Intention to Award issued to the 3rd Respondent dated 14th June 2022 with respect to Tender No. MTRH/T/86/2023-2024 for Provision of Medical Insurance Cover, be and is hereby nullified and set aside.
C. The Notifications of Intention Award addressed to the unsuccessful tenderers including the Applicant dated 14th June 2024 with respect to Tender No. MTRH/T/86/2023-2024 for Provision of Medical Insurance Cover, be and are hereby nullified and set aside.
D. The 1st Respondent is hereby ordered to re-admit the Applicant’s tender to the Technical Evaluation 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.
E. Further to Order No. D above, the 1st and 2nd Respondents are hereby directed to proceed with the procurement process to its logical conclusion.
F. Given that the procurement process for the subject tender is not complete, each party shall bear its own costs in the Request for Review.
39. The Respondent contends that the Applicant being dissatisfied with its decision dated 19th July 2024, sought judicial review before this Honourable Court against the said decision in Nairobi High Court Judicial Review Misc. Civil Application No. E170 of 2023 wherein judgment was delivered on 16th September 2024 granting orders inter alia g) The Request for Review No. 58/2024 shall be readmitted for hearing and determined within 7 days of today’s date.
40. The Respondent deponed that in compliance with the High Court Orders, it notified parties and all tenderers in the subject tender of an online hearing of the instant Request for Review slated for 19th September 2024 at 4.00 p.m. vide a Hearing Notice dated 16th September 2024 and through the link availed in the said Hearing Notice.
41. The Respondent further deponed that in the morning of 19th September 2024, the Applicant’s counsel notified the Respondent vide email that this Honourable Court had stayed the rehearing slated for 19th September 2024 at 4.00 p.m. pending hearing and determination of an application for review of the High Court’s Judgment in Nairobi High Court Judicial Review Misc. Civil Application No. E170 of 2023 and it followed that on 24th September 2024, the Respondent was notified that the Ex parte Applicant’s Notice of Motion application dated 18th September 2024 in Nairobi High Court Judicial Review Misc. Civil Application No. E170 of 2023 had been marked as withdrawn and the stay orders issued by this Honourable court on 18th September 2024 vacated.
42. Subsequently, the Respondent vide email dated 25th September 2024 and Hearing Notice dated 25th September 2024, proceeded to notify parties and all tenderers in the subject tender that the online hearing of the instant Request for Review had been rescheduled to 27th September 2024 at 10.30.
43. In Response to the notice, on 26th September 2024, the Ex parte Applicant herein filed through MB Law Advocates LLP a Notice of Change of Advocates dated 26th September 2024 together with a Notice of Preliminary Objection dated 26th September 2024. The 1st and 2nd Interested Parties in the case before this court also filed a Notice of Preliminary Objection dated 26th September 2024 together with Written Submissions dated 26th September 2024.
44. The Respondent avers that the Request for Review was reheard on 27th September 2024 and the Respondent having considered the parties’ pleadings, documents, written and oral submissions, the list and bundle of authorities together with the confidential documents submitted to the Board pursuant to Section 67(3) (e) of the Act in its Decision dated 28th September 2024 on 28th September 2024 in exercise of the powers conferred upon it under the Public Procurement and Asset Disposal Act (hereinafter referred to as “the Act”) made the following final orders with respect to Request for Review No. 58 of 2024:
a) The 1st, 2nd, and 3rd Respondents’ Notice of Preliminary Objections dated 26th September 2024 and filed on even date be and are hereby dismissed.
b) The 3rd Respondent’s Preliminary Objection dated 10th July 2024 and filed on 12th July 2024 and the Preliminary Objection contained in the 1st and 2nd Respondent Statement Against the Application for Request for Review sworn on 5th July 2024 by Evans Kipchumba Kiprotich and filed on even date be and is hereby dismissed.
c) The Notification of Intention to Award issued to the 3rd Respondent dated 14th June 2022 with respect to Tender No. MTRH/T/86/2023-2024 for Provision of Medical Insurance Cover, be and is hereby nullified and set aside.
d) The Notifications of Intention Award addressed to the unsuccessful tenderers including the Applicant dated 14th June 2024 with respect to Tender No. MTRH/T/86/2023-2024 for Provision of Medical Insurance Cover, be and are hereby nullified and set aside.
e) The 1st Respondent is hereby ordered to re-admit the Applicant’s tender to the Technical Evaluation stage for re-evaluation and make good the anomalies that the Board has pointed out herein in the procurement process of the subject tender in accordance with the provisions of the Tender Document, Regulations 2020, the Act and Article 227 of the Constitution within 21 days from the date hereof while taking into consideration the Board’s findings in this Request for Review.
f) Further to Order No. D above, the 1st and 2nd Respondents are hereby directed to proceed with the procurement process to its logical conclusion.
g) Given that the procurement process for the subject tender is not complete, each party shall bear its own costs in the Request for Review.
45. The Respondent further deponed that in determining the issue on whether the rehearing of the instant Request for Review was time barred it was guided by provisions under Section 57 of the Interpretation and General Provisions Act, Chapter 2 of the Laws of Kenya in computing time within which the 7 days ordered for rehearing would lapse from the date of delivery of the High Court’s Judgment on 16th September 2024 while noting the stay orders issued on 19th September 2024 vacated on 23rd September 2024 and notification of the said withdrawal on the 24th September 2024 and it found that it had the 16th, 17th, 18th, 25th, 26th, 27th and 28th September 2024 to rehear the matter and as such, it was within the 7 days’ timelines ordered by the High Court and thus was seized of jurisdiction to rehear the instant Request for Review.
46. The Respondent held that Preliminary Objection dated 10th July 2024 by the Applicant did not constitute a proper ground of a preliminary objection as it was incapable of disposing Request for Review No. 58 of 2024 and that it failed to substantiate its case with respect to the allegation that John Kimani does not have authority to sign, swear or make statements in support of Request for Review No. 58 of 2024 on behalf of the 3rd Interested Party.
47. The Respondent also held that it had jurisdiction to hear and determine Request for Review No. 58 of 2024 and that it also took cognizance of the Technical Evaluation Criteria of the Tender Document and the scoring by the Evaluation Committee of the 3rd Interested Party’s bid document and found that the Evaluation Committee failed to evaluate the 3rd Interested Party’s bid document submitted in the subject 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.
48. The Respondent avers that the Applicant’s judicial review proceedings as contemplated under Section 175(1) of the Act within the stipulated 14 days from the date of the Respondent’s decision and this ground of objection is unfounded and baseless.
49. It is the Respondent’s case that by dint of Section 67(3)(e) of the Act, the contents of the 1st & 2nd Interested Party’s Evaluation Report as submitted to it remain confidential information which the Applicant ought not to be privy to and as such, it had no obligation to disclose the same to the Applicant.
50. The Respondent further states it acted within the confines of the Constitution, the Act, Regulations 2020, the Fair Administrative Actions Act and the rule of law in its findings in Request for Review No. 58 of 2024 and the allegation that it amended the Technical Evaluation Criteria as contained in the Tender Document remain unsubstantiated and false.
51. The Respondent deponed that its decision dated 28th September 2024 was within the provisions of Article 227 of the Constitution. The it was well reasoned and was neither unlawful, misconceived, erroneous, irrational, nor in violation of Applicant’s Legitimate Expectations.
52. It is the Respondent’s case that Applicant has failed to demonstrate any elements of illegality, irrationality, procedural impropriety and/or unfairness in the manner in which the Respondent considered and interrogated the evidence, documents, pleadings, and information before it in arriving at its Decision in Request for Review No. 58 of 2024.
53. The Respondent submits that the preliminary objection herein fits the definition of a preliminary objection per the leading case of Mukisa Biscuits Manufacturing Co. Ltd Vs West End Distributors Ltd [1969] E.A.696 in the celebrated case Law J.A states a preliminary objection to be thus: -
“so far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit”
Sir Charles Newbold, President stated in the same judgment as follows: -
“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion”
54. The Respondent further submits that The Civil Procedure Act Cap 21, at Section 7 provides as follows;
7. Res judicata No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court. Explanation.
(1) ...
(2) …
(3) …
(4) Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
(5) ….
(6) …
55. The Respondent submits that the matter before this court is res judicata as the same was heard and determined in the case of HCJR/E170/2024 First Assurance Company Limited V Public Procurement Administrative Review Board and Moi Teaching and Referral Hospital and 2 Others. It cites the case of Kenya Commercial Bank Limited vs Benjoh Amalgamated Limited [2017] eKLR where the Court stated;
“The doctrine is grounded on public interest and thus transcends the parties’ interests in a suit. Public interest requires or demands that litigation must at some point come to an end.”
The Court quoted the case of Benjoh Amalgamated Limited & Another v Kenya Commercial Bank Limited [2014] eKLR, an application between the same parties, where the Court in that matter went on to state;
“The courts have never accepted res judicata as an absolute principle of law which applies rigidly in all circumstances irrespective of the injustice of the case. There is one established exception to this doctrine, and that is where the Court itself has made such an egregious mistake that grave injustice to one or more of the parties concerned would result if the Court’s erroneous decision were to form the basis of an estoppel against the aggrieved party.... In such a case, the tension between justice principle and the finality principle is resolved in favour of the former.”
“... the general rule is that where a litigant seeks to reopen in a fresh action an issue which was previously raised and decided on the merits in an earlier action between the same parties, the public interest in the finality of litigation (“the finality principle”) outweighs the public interest in achieving justice between the parties (“the justice principle”) and therefore the doctrine of res judicata applies. In such cases, it is usually immaterial that the decision which gives rise to the estoppel is wrong because “a competent tribunal has jurisdiction to decide wrongly, as well as correctly, and if it makes a mistake its decision is binding unless corrected on appeal.”
Additionally, the court made further reference to Mburu Kinyua vs. GachiniTuti [1978] KLR 69; [1976-80] 1 KLR 790 and Churanji Lal & Co vs. Bhaijee (1932) 14 KLR 28 where it was held that;
“The general principle is that a party cannot in a subsequent proceeding raise a ground of claim or defence which has been decided or which, upon the pleadings or the form of issue, was open to him in a former proceeding between the same parties. The mere discovery of fresh evidence (as distinguished from the development of fresh circumstances) on matters which have been open for controversy in the earlier proceedings is no answer to a defence of res judicata...The law with regard to res judicata is that it is not the case, and it would be intolerable if it were the case, that a party who has been unsuccessful in a litigation can be allowed to re-open that litigation merely by saying, that since the former litigation there is another fact going exactly in the same direction with the facts stated before, leading up to the same relief which I asked for before, but it being in addition to the facts which I have mentioned, it ought now to be allowed to be the foundation of a new litigation, and I should be allowed to commence a new litigation merely upon the allegation of this additional fact. The only way in which that could possibly be admitted would be if the litigant were prepared to say, I will show you that this is a fact which entirely changes the aspect of the case, and I will show you further that it was not, and could not by reasonable diligence have been ascertained by me before...The point is not whether the respondent was badly advised in bringing the first application prematurely; but whether he has since discovered a fact which entirely changes the aspect of the case and which could not have been discovered with reasonable diligence when he made his first application.”
56. It is the Respondent’s submission that it acted within their powers as is mandated by the Public Procurement and Asset Disposal Act under Section 173 and that the Applicant has not established that the it has acted unreasonably, irrationally or in excess of its jurisdiction It cites the case of Pastoli vs. Kabale District Local Government Council and Others [2008] 2 EA 300 in which the Court citing Council of Civil Unions vs. Minister for the Civil Service [1985] AC 2 and An Application by Bukoba Gymkhana Club [1963] EA 478 at 479 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 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 a failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision.”
57. The Respondent also makes reliance on the case of Kenya Pipeline Company Limited case V Hyosung Ebara Company Limited & 2 Others [2012] Eklr where the Court pronounced itself as follows:
“The Review Board is a specialized statutory tribunal established to deal with all complaints of breach of duty by the procuring entity. By Reg. 89, it has power to engage an expert to assist in the proceedings in which it feels that it lacks the necessary experience. S. 98 of the Act confers very wide powers on the Review Board. It is clear from the nature of powers given to the Review Board including annulling, anything done by the procurement entity and substituting its decision for that of the procuring entity that the administrative review envisaged by the Act is indeed an appeal. From its nature the Review Board is obviously better equipped than the High Court to handle disputes relating to breach of duty by procurement entity. It follows that its decision in matters within its jurisdiction should not be lightly interfered with.
Having regard to the wide powers of the Review Board we are satisfied That the High Court erred in holding That the Review Board was not competent to decide whether or not the 1st Respondent’s tender had met the mandatory conditions. The issue whether or not the 1st Respondent’s tender was rightly rejected as unresponsive was directly before the Review Board and the Board had jurisdiction to deal with it.
In conclusion, it is manifest that the application for Judicial Review was not well founded. The 1st Respondent did not establish that the Review Board had acted without jurisdiction or in excess of jurisdiction or in breach of rules of natural justice or that the decision was irrational. The Judicial Review was not confined to the decision making process but rather with the correctness of the decision on matters of both law and fact. So long as the proceedings of the Review Board were regular and it had jurisdiction to adjudicate upon the matters raised in the Request for Review, it was as much entitled to decide those matters wrongly as it was to decide them rightly.
The High Court erred in essence in treating the judicial review application as an appeal and in granting judicial review orders on the grounds which were outside the scope of Judicial Review jurisdiction.”
58. The Respondent submit that Applicant has not demonstrated that it is entitled to the judicial review orders of certiorari, mandamus and prohibition hence the application should be dismissed with costs to the respondent however section 175(7) of the PAD Act forbids award of costs to any party in the event the Board`s decision is quashed by the High Court.
1st and 2nd Interested Parties case;
59. In opposition to the Applicants’ Application, the 1st and 2nd Interested Parties (hereinafter referred to as IP’s) filed a Replying Affidavit dated 18th October, 2024 and Further Replying Affidavit dated 26th October, 2024 sworn by Evans Kipchumba Kiprotich and written submissions dated 21st October, 2024.
60. The 1st and 2nd IPs deponed that this Honourable court delivered a determination on the Applicant’s request for a judicial review, and also the Public Procurement Administrative Review Board delivered a ruling beyond 23'd September 2024 by virtue of Section 175 (3) (4) (5) and (6) of the Public Procurement and Assets Disposal Act of 2015.
61. The 1st and 2nd IPs further deponed that the Public Procurement Administrative and Review Board (PPARB) delivered a ruling on the tender proceeding and that the procuring entity tender evaluation committee to re-admit the applicant to the technical evaluation stage contrary to the provisions of section 80 (2) of the Public Procurement and assets Disposal Act, 2015 as set out in the bidding document.
62. The 1st and 2nd IPs aver that on 18th October 2024, they received a letter from the 3rd Interested Party’s advocate reference M&G OMW/80 dated 17th October 2024 to the effect that the 1" & 2"d interested parties are meant to comply with the orders of the Board (PPARB) dated 28 September 2024 as is no stay of the honorable Boards decision and in event of non-compliance they will be cited for contempt and disobedience of lawful orders.
63. The 1st and 2nd IPs submit that two issues emerge for determination before this court that is Whether the Respondent PPARB acted without jurisdiction when rehearing Application for Review number 58 0f 2024 and the second issue is that of costs.
64. It is their submission that PPARB acted without jurisdiction in rehearing application for review number 58 of 2024 beyond 23rd October 2024 as once 7 days from the Judgement delivered on 16th September, 2024 (Milimani HC No. HCJR/E170/2024) by this Honourable Court ended the PPARB lacked jurisdiction to rehear the application for review No. 58 of 2024 as is provided in Section 175 (4) of the Act.
65. They cite the case of ADK Technologies Ltd in Consortium with Computer Technologies Ltd v Public Procurement Administrative Review Board & 4 Others (Civil Appeal E598 of 2021) (2022) KECA 407 (KLR) (4 March 2022) (judgement) where the court dealt with the issue of the effect of Section 175 (4). The Appellate Court rendered itself as follows: -
8. we have carefully considered the question of our jurisdiction in this appeal …….
10 In the Aprim case, the court stated that Section 175 was couched in mandatory terms. The Court rendered itself thus
A perusal of Section 175 of the Act reveals parliament’s unmistakable intention to constrict the time taken for the filing hearing and determination of public procurement disputes in keeping with the Act’s avowed intent and object of expeditious resolution of these disputes.
Parliament was fully engaged and intentional in setting the timelines in the Section. But it did not stop there. In one of the rarer instances where all discretion is totally shut out, Parliament expressly enacted a consequence to follow default or failure to file or to decide (by PPARB within 7 days after high court decision. emphasize mine) within prescribed times: The decision of the Board (and in this case that of the High Court) would crystalize and be invested with finality.
Our reading of the Act is that the High Court (and the PPARB in this case) was under an express duty to make its determination within the time prescribed [by PPARB within7 days as per the High Court Orders and Section 175 (4) of the Act]. During such time did its jurisdiction exist, but it was time bound jurisdiction that ran out and ceased by effluxion of time. The moment the 45 days (7days after HC decision for PPARB and any aggrieved party in this matter) ended, the jurisdiction also ended. Thus any judgement (in our case PPARB) decision rendered outside time would be without jurisdiction and therefore a nullity, bereft of any force or effect in law” (Emphasis added)
66. The 1st and 2nd IPs also make reliance on the case of Samuel Macharia & Anor vs Kenya Commercial Bank Limited & 2 Others (2012) eKLR.
“64 A court’s jurisdiction flows from either the Constitution or legislation or both. Thus a Court of Law (as well as a quasi-judicial body like PPARB) can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate itself jurisdiction exceeding that which is conferred upon it by law. We agree with Counsel for the 1st and 2nd Respondents in his submission that the issue as to whether a court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the court (or quasi-Judicial body) cannot entertain any proceedings. …….. It cannot expand its jurisdiction through judicial craft or innovation. …….. Where the Constitution confers upon parliament power to set the jurisdiction of a Court of law or tribunal (PPARB), the legislature would be within the authority to prescribe the jurisdiction of such a court or tribunal by statute law.”
The Court of appeal guided by the above Supreme Court decision in the Aprim case concluded thus:
It seems clear to us that the jurisdiction of the High Court (and PPARB in our humble opinion) in public procurement judicial review (applications for review before PPARB) proceedings is expressly limited in terms of time and is not open to expansion by court (PPARB). To step out of time is to step out of jurisdiction and any act or decision outside jurisdiction is, by application of first principles a nullity.
67. The 1st and 2nd IPs submit that applicant has established a case for the grant of judicial review orders of certiorari to quash the decision of the Respondent dated 28th September 2024 , and mandamus to direct the 1st and 2nd Interested Party to re-instate the “notification of intention to award” issued to the Ex-parte applicant (3rd Respondent) and the unsuccessful tenderers dated 14th June 2024 and progress the tender No. MTRH/T/86/2023-2024 for Medical Insurance Cover to its logical conclusion.
68. On the issue of costs, it is their submissions that the Respondent should bear costs, however Section 175 (7) of the Act provides that where a decision of the Review Board has been quashed, the High Court shall not impose costs on either party.
The 3rd Interested Party’s case;
69. In opposition to the Applicants’ Application, the 3rd Interested Party (hereinafter referred to as 3rd IP) filed a Replying Affidavit dated 7th November, 2024 sworn by Mercy Ruguru Ndegwa and written submissions dated 4th November, 2024.
70. The 3rd IP deponed that the Applicant initiated an initial Judicial Review proceedings having been dissatisfied with the Respondent’s initial decision rendered on 19th July 2024 in PPARB Application No. 58 of 2024 where the Respondent found as successful the 3rd Interested Party’s Request for Review No. 58 of 2024 dated 26th June 2024 and filed on 28th June 2024. The initial Judicial Review proceedings were concluded by this Honourable court and judgment delivered on 16th September, 2024.
71. The Respondent further deponed that on the Applicant on 18th September 2024 filed an application under certificate of urgency seeking a stay of prosecution of the court orders from the said judgement as well as to have its decision reviewed. This honorable court granted a temporary stay besides directions on disposal of the said application requiring parties to appear before it on the 23rd September 2024 to confirm compliance.
72. The 3rd Interested Party filed a Preliminary Objection together and a Replying Affidavit and on the date of mention for compliance only the Ex- Parte Applicant and 3rd Interested Party attended court the Ex- Parte Applicant withdrew its application consequently leading to collapse of the interim orders that were existing.
73. The 3rd IP posits that the stay orders issued on 18th September 2024 were in place on dates between 18th September 2024 to 23rd September 2024 (both days inclusive) and that as of the 23rd September 2024, the Respondent had spent only one day i.e. the 18th September 2024 from the 7-day accorded to it to re-admit, re-hear and determine Request for Review PPARB NO 58 of 2024.
74. Thereafter on the September 2024, the Respondent invited all the parties through their advocates for a re-hearing via email on the 27th September 2024 and on the hearing date, the firm of Busiega came on record in place of the firm of Mwaniki Gachuba & Company Advocates having filed their Notice of Change of Advocates on the 26th September, 2024 as well as a detailed Notice of Preliminary Objection dated 26th September, 2024.
75. The 3rd IP avers that all parties were heard on 27th September, 2024 and the Respondent on 28th September 2024 at 1622 Hrs rendered its decision via Email to all the parties and pursuant to the said decision the Applicant who is who frivolous and vexatious instituted the application that is before this Honourable court.
76. The 3rd IP deponed that the Respondent gave the 1st & 2nd Interested Party 21 days to comply with its directions which duration accorded the Ex parte Applicant and any aggrieved party an opportunity to institute Judicial Review proceedings as contemplated under Section 175 of PPADA, 2015 and that its directions it was expressly directed that the in complying with the its directions within the 21 days the 1st and 2nd Interested Parties Constituting the Procuring Entity were to strictly adhere to in accordance with the provisions of the Tender Document, Regulations 2020, the PPADA Act and Article 227 of the Constitution of Kenya.
77. The 3rd IP further deponed that in its request for review, the 3rd Interested Party further contended that it was denied marks under Item Numbers 1 (i) (b), (iii), (v), 2, 6 and 11 under the scoring criteria of the 1st and 2nd Interested Parties (Procuring Entity’s) Tender Document thus it could not have been possible for the 3rd Interested Party to get to technical evaluation stage where the Procuring Entity said it failed had it not passed the Mandatory Stage which preceded it. This was therefore a belated afterthought which advanced by the Procuring Entity which was found to have favoured the Applicant during Evaluation.
78. The 3rd IP avers that the application before this Honourable court falls short on the foundational basis of instituting judicial review proceedings pursuant to Section 7 (2) of the Fair Administrative Action Act 2015 and that it has no aspects of illegality, irrationality or procedural impropriety substantiated herein in respect to the Respondent’s Decision to warrant interference by this Court.
79. The 3rd IP submits that it submitted a completed tender to the Procuring Entity’s provided address being Moi Teaching & Referral Hospital, P.O Box 3 – 30100 Eldoret on 28th March 2024 at 10.00 am forwarded vide a Letter dated 28th April 2024 on which date the tenders were opened and evaluation commenced for the eight (8) Tenders who had submitted their respective bids.
80. It is the 3rd IP’s submission that it is an established principle that the Court will not offend the principal of res judicata as was held in Kenya Commercial Bank Limited vs Benjoh Amalgamated Limited [2017] eKLR where the Court stated;
“The doctrine is grounded on public interest and thus transcends the parties’ interests in a suit. Public interest requires or demands that litigation must at some point come to an end.”
The Court quoted the case of Benjoh Amalgamated Limited & Another v Kenya Commercial Bank Limited [2014] eKLR where the court held: -
“The courts have never accepted res judicata as an absolute principle of law which applies rigidly in all circumstances irrespective of the injustice of the case. There is one established exception to this doctrine, and that is where the Court itself has made such an egregious mistake that grave injustice to one or more of the parties concerned would result if the Court’s erroneous decision were to form the basis of an estoppel against the aggrieved party. In such a case, the tension between justice principle and the finality principle is resolved in favour of the former.”
“the general rule is that where a litigant seeks to reopen in a fresh action an issue which was previously raised and decided on the merits in an earlier action between the same parties, the public interest in the finality of litigation (“the finality principle”) outweighs the public interest in achieving justice between the parties (“the justice principle”) and therefore the doctrine of res judicata applies. In such cases, it is usually immaterial that the decision which gives rise to the estoppel is wrong because “a competent tribunal has jurisdiction to decide wrongly, as well as correctly, and if it makes a mistake its decision is binding unless corrected on appeal.”
Additionally, the court made reference to Mburu Kinyua vs. GachiniTuti [1978] KLR 69; [1976-80] 1 KLR 790 and Churanji Lal & Co vs. Bhaijee (1932) 14 KLR 28 where it was held that;
“The general principle is that a party cannot in a subsequent proceeding raise a ground of claim or defence which has been decided or which, upon the pleadings or the form of issue, was open to him in a former proceeding between the same parties. The mere discovery of fresh evidence (as distinguished from the development of fresh circumstances) on matters which have been open for controversy in the earlier proceedings is no answer to a defence of res judicata The law with regard to res judicata is that it is not the case, and it would be intolerable if it were the case, that a party who has been unsuccessful in a litigation can be allowed to re-open that litigation merely by saying, that since the former litigation there is another fact going exactly in the same direction with the facts stated before, leading up to the same relief which I asked for before, but it being in addition to the facts which I have mentioned, it ought now to be allowed to be the foundation of a new litigation, and I should be allowed to commence a new litigation merely upon the allegation of this additional fact. The only way in which that could possibly be admitted would be if the litigant were prepared to say, I will show you that this is a fact which entirely changes the aspect of the case, and I will show you further that it was not, and could not by reasonable diligence have been ascertained by me before...The point is not whether the respondent was badly advised in bringing the first application prematurely; but whether he has since discovered a fact which entirely changes the aspect of the case and which could not have been discovered with reasonable diligence when he made his first application.”
81. The 3rd IP further submit that Respondent acted within the powers conferred to it by Section 173 of the Public Procurement and Asset Disposal Act in reaching its decision in the request for review and that its decision does not fall within the prescription and threshold of unreasonableness, illegality and neither was it arrived at with procedural impropriety.
82. They make reliance on the case of Council of Civil Unions vs. Minister for the Civil Service [1985] AC 2 and an Application by Bukoba Gymkhana Club [1963] EA 478 at 479 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 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 a failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision.”
83. It also cites the case of Kenya Pipeline Company Limited Case V Hyosung Ebara Company Limited & 2 Others [2012] Eklr where the Court pronounced itself as follows:
“The Review Board is a specialized statutory tribunal established to deal with all complaints of breach of duty by the procuring entity. By Reg. 89, it has power to engage an expert to assist in the proceedings in which it feels that it lacks the necessary experience. S. 98 of the Act confers very wide powers on the Review Board. It is clear from the nature of powers given to the Review Board including annulling, anything done by the procurement entity and substituting its decision for that of the procuring. entity that the administrative review envisaged by the Act is indeed an appeal. From its nature the Review Board is obviously better equipped than the High Court to handle disputes relating to breach of duty by procurement entity. It follows that its decision in matters within its jurisdiction should not be lightly interfered with.
Having regard to the wide powers of the Review Board; we are satisfied That the High Court erred in holding That the Review Board was not competent to decide whether or not the 1st Respondent’s tender had met the mandatory conditions. The issue whether or not the 1st Respondent’s tender was rightly rejected as unresponsive was directly before the Review Board and the Board had jurisdiction to deal with it.In conclusion, it is manifest that the application for Judicial Review was not well founded. The 1st Respondent did not establish that the Review Board had acted without jurisdiction or in excess of jurisdiction or in breach of rules of natural justice or that the decision was irrational. The Judicial Review was not confined to the decision-making process but rather with the correctness of the decision on matters of both law and fact. So long as the proceedings of the Review Board were regular and it had jurisdiction to adjudicate upon the matters raised in the Request for Review, it was as much entitled to decide those matters wrongly as it was to decide them rightly.
The High Court erred in essence in treating the judicial review application as an appeal and in granting judicial review orders on the grounds which were outside the scope of Judicial Review jurisdiction.”
84. On the issue of costs, the 3rd IP cites the case of Supermarine Handling Services Ltd vs Kenya Revenue Authority, Civil Appeal No. 85 of 2006, the Court explained the circumstances that would lead an appellate court to interfere with the trial court’s exercise of discretion thus;
“Costs of any action or other matter or issue shall follow the event unless the court or Judge shall for good reason otherwise order. It is well established that when the decision of such a matter as the right of a successful litigant to recover his costs is left to the discretion of the Judge who tried his case, that discretion is a judicial discretion, and if it be so its exercise must be based on facts.
If, however, there be, in fact, some grounds to support the exercise by the trial Judge of the discretion he purports to exercise, the question of sufficiency of those grounds for this purpose is entirely a matter for the Judge himself to decide, and the Court of Appeal will not interfere with his discretion in that instance...Thus, where a trial court has exercised its discretion on costs, an appellate court should not interfere unless the discretion has been exercised unjudicially or on wrong principles.
Where it gives no reason for its decision the Appellate Court will interfere if it is satisfied that the order is wrong. It will also interfere where the reasons are given if it considers that those reasons do not constitute “good reason” within the meaning of the rule...”.
85. The 3rd IP thus prays that this court should dismiss the Applicant’s application as it is frivolous and lacks merit with costs being borne by the Applicant, the 1st and 2nd Interested Parties.
Analysis and determination:
86. Upon considering the application, affidavits respectively filed in support and opposition of the application, the rival submissions and authorities cited the issue that emerge for determination are as follows;
i. Whether the suit is res judicata
ii. Whether the Respondent acted illegally
iii. Whether the Respondent complied with the directions issued in HCJR E170/2024
iv. Composition of the Board
Issue 1- Whether the suit is res judicata;
87. The Respondent filed a Notice of Preliminary objection dated 15th day October, 2024 on the ground that the Judicial Review Application dated 7th October 2024 is res judicata and that the same offends the express provisions of Section 7 of the Civil Procedure Act Cap 21 Laws of Kenya as the issues raised have already been heard and determined by this court in HCJR/E170/2024, First Assurance Company Limited v Public Procurement Administrative Review Board and Moi Teaching and Referral Hospital and 2 Others.
88. In the case of Mukisa Biscuits Manufacturing Co. Ltd Vs West End Distributors Ltd [1969] E.A.696 Law J.A states a preliminary objection to be thus: -
“So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit”
Sir Charles Newbold, President stated in the same judgment as follows:
“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion”
89. The Respondent submitted that the objection is well taken because if it succeeds the court will be saved the cost of a lengthy hearing and attendant expenses on either side.
The Civil Procedure Act Cap 21, at Section 7 provides as follows;
“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”
Explanation. — (1) The expression “former suit” means a suit which has been decided before the suit in question whether or not it was instituted before it.
Explanation. — (2) For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court.
Explanation. — (3) The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
Explanation. — (4) Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation. — (5) Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused.
Explanation. — (6) Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.
90. The Supreme Court in a decision rendered on 6th August, 2021 in John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others [2021] eKLR comprehensively dealt with the different facets making up the doctrine of res judicata.
91. The Apex Court went ahead and rendered itself on the threshold for proving the applicability of the doctrine. The Court stated as follows:
“[86] Werestate the elements that must be proven before a court may arrive at the conclusion that a matter is res judicata. For res judicata to be invoked in a civil matter the following elements must be demonstrated:
(a) There is a former Judgment or order which was final;
(b) The Judgment or order was on merit;
(c) The Judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and
(d) There must be between the first and the second action identical parties, subject matter and cause of action.”
92. In order therefore to decide as to whether an issue in a subsequent Application is res judicata, a court of law should always look at the Decision claimed to have settled the issues in question and the entire Application and the instant Application to ascertain;
i. What issues were really determined in the previous Application;
ii. Whether they are the same in the subsequent Application and were covered by the Decision.
iii. Whether the parties are the same or are litigating under the same Title and that the previous Application was determined by a court of competent jurisdiction.
93. The subject issues pleaded in this suit are fundamentally different from what was determined in HCJR/E170/2024 in the following fronts as argued by the Applicant inter alia:
a) Whether the Respondent committed an illegality when it exceeded the jurisdiction provided by the court orders of 16thSeptember,2024 by hearing the matter outside the prescribed timelines; This is not an issue that was handled in HCJR/E170/2024.
b) Whether as a consequence of the contravention of the court orders of 16thSeptember,2024, the Respondent breached section 175(6) of the Public Procurement and Asset Disposal Act,2015 and therefore committed an illegality; This is not an issue that was handled in HCJR/E170/2024.
c) Whether the Respondent’s decision of 28th September,2024 directing the Accounting Officer of the Procuring Entity to re-admit the 3rd Interested Party’s tender to the Technical Evaluation Stage for re-evaluation within 21 days from the date hereof is ultra vires section 175(1) of the Public Procurement and Asset Disposal Act,2015; in HCJR/E170/2024, the court handled compliance period of 14 days and not 21 days as has been pleaded in this new matter.
d) Whether the Respondent acted irrationally and breached procedure to order re-admission of the 3rd Interested Party’s tender to the Technical Evaluation Stage alone for reevaluation instead of directing the whole process to start from inception especially the Preliminary/ Mandatory Evaluation where the 3rd Interested Party had failed.
e) Whether the decision to redirect the re-evaluation only at the Technical Evaluation Stage is biased, unfair and unlawful.
f) Whether it was unreasonable for the same
94. This court is in agreement with the Applicant. In any event, the causes of action in the two suits are distinct and very different. It is this court's finding and I do hold that the Respondents’ claim that this suit is Res Judicata is misplaced and the Notice of preliminary objection lacks merit and the same is dismissed.
95. In the judgment delivered on 16th September 2024 in Nairobi High Court Judicial Review Misc. Civil Application No. E170 of 2023 the court issued the following orders:
a) 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.
b) 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 29thJuly, 2024 for the purposes of being quashed is declined.
c) An Order of Prohibition to prohibit the 1st and 2ndInterested 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.
d) 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.
e) 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.
f) Each party shall bear its costs.
g) The Request for Review No. 58/2024 shall be readmitted for hearing and determined within 7 days of today’s date.
96. Towards complying with order g of the said judgment, on 28th September 2024, the Respondent made the following final orders with respect to Request for Review No. 58 of 2024:
a. The 1st, 2nd, and 3rd Respondents’ Notice of Preliminary Objections dated 26th September 2024 and filed on even date be and are hereby dismissed.
b. The 3rd Respondent’s Preliminary Objection dated 10th July 2024 and filed on 12th July 2024 and the Preliminary Objection contained in the 1st and 2nd Respondent Statement Against the Application for Request for Review sworn on 5thJuly 2024 by Evans Kipchumba Kiprotich and filed on even date be and is hereby dismissed.
c. The Notification of Intention to Award issued to the 3rd Respondent dated 14th June 2022 with respect to Tender No. MTRH/T/86/2023-2024 for Provision of Medical Insurance Cover, be and is hereby nullified and set aside.
d. The Notifications of Intention Award addressed to the unsuccessful tenderers including the Applicant dated 14th June 2024 with respect to Tender No. MTRH/T/86/2023-2024 for Provision of Medical Insurance Cover, be and are hereby nullified and set aside.
e. The 1st Respondent is hereby ordered to re-admit the Applicant’s tender to the Technical Evaluation stage for re-evaluation and make good the anomalies that the Board has pointed out herein in the procurement process of the subject tender in accordance with the provisions of the Tender Document, Regulations 2020, the Act and Article 227 of the Constitution within 21 days from the date hereof while taking into consideration the Board’s findings in this Request for Review.
f. Further to Order No. D above, the 1st and 2ndRespondents are hereby directed to proceed with the procurement process to its logical conclusion.
g. Given that the procurement process for the subject tender is not complete, each party shall bear its own costs in the Request for Review.
This has precipitated the instant suit.
2nd issue – Whether the Respondent acted illegally;
97. Section 175 of PPAD Act stipulates that (1) A person aggrieved by a decision made by the Review Board may seek judicial review by the High Court within fourteen days from the date of the Review Board's decision, failure to which the decision of the Review Board shall be final and binding to both parties.
98. From the impugned decision, it is noted that the Respondent directed the Accounting Officer of the Procuring Entity to re-admit the Applicant’s tender to the Technical Evaluation stage for re-evaluation and to make good the anomalies that the Board had pointed out herein in the procurement process of the subject tender in accordance with the provisions of the Tender Document, Regulations 2020, the Act and Article 227 of the Constitution within 21 days from the date hereof while taking into consideration the Board’s findings in this Request for Review.
99. The meaning and consequence of this directive is that the Procuring Entity was required to comply within timelines that would in effect run concurrently and within the period in which an application for Judicial Review should be filed under section 175(1) of the of the Public Procurement and Asset Disposal Act,2015.
100. The Respondent’s directive failed to take into consideration the automatic 14-day statutory stay or standstill period. It interfered with the said critical access to justice 14 days window rendering the whole proceedings irredeemably incompetent. This is an illegality that vitiates the entire procurement process.
101. The board has no power to issue compliance timelines that offend or contradict Section 175 of the PPAD Act and the same amounts to an illegal directive which is contra Article 227 of the Constitution.
102. The directive took away the 14 days right of an aggrieved party to lodge an appeal or lodge a judicial review application.
103. The applicant had a legitimate expectation that it would harness the right as guaranteed under Section 175 of PPAD Act.
104. The order of 21 days amounted to a fatal error of law on the part of the Respondent in the process of making the decision the subject of the complaint. The Respondent acted without Jurisdiction or ultra vires, or contrary to the provisions of a law and in particular Section 175 of the PPAD Act. This offends the rule of law as provide for under Article 10 and 47 of Constitution. This accord with the principles as enunciated in Article 227 of the constitution.
105. A procurement process that is informed by decisions that are contrary to express provisions of the law offend Article 47 of The Constitution.
106. In the case of Pastoli vs Kabale District Local Government Council & Others [2008] 2 EA 300 at pages 303 to 304 thus:
“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: See Council of Civil Service Union v Minister for the Civil Service [1985] AC 2; and also, Francis Bahikirwe Muntu and others v Kyambogo University, High Court, Kampala, miscellaneous application number 643 of 2005 (UR).
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: Re an Application by Bukoba Gymkhana Club [1963] EA 478 at page 479 paragraph “E”.
Procedural impropriety is when there is failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision. (Al-Mehdawi v Secretary of State for the Home Department [1990] AC 876).”
107. The applicant has proven the respondent acted illegally.
Third issue - Whether the Respondent complied with the directions issued in HCJR E170/2024;
108. Section 57 of the Interpretation and General Provisions Act, Chapter 2 of the Laws of Kenya in computing time within which the 7 days ordered for rehearing would lapse from the date of delivery of the High Court’s Judgment on 16th September 2024 while noting the stay orders issued on 19th September 2024 vacated on 23rdSeptember 2024 and notification of the said withdrawal on the 24th September 2024 and it found that it had the 16th, 17th, 18th, 25th, 26th, 27th and 28th September 2024 to rehear the matter and as such, it was within the 7 days’ timelines ordered by the High Court and thus was seized of jurisdiction to rehear the instant Request for Review.
109. I am satisfied that the Respondent complied with order (g)of the judgment of the High Court in JR 170/24 to wit that “The Request for Review No. 58/2024 shall be readmitted for hearing and determined within 7 days of today’s date.”
Fourth issue: The Composition of the Board;
110. According to the applicant, it was unreasonable and illogical for the Respondent to re-admit and re-hear the matter before the same Panel of Board members that heard the first Request for Review.
111. The Applicant argued that it’s impractical nay impossible that the Respondent would have come out with a different reasoning and decision from the findings of its first decision. According to the Applicant it was irrational for the same panel of Board to rehear the Request for Review and expect to come out with a different outcome, yet they had already openly expressed their bias.
112. The Respondent Board in rehearing the Request for Review constituted the Panel Chairperson Mr. Joshua Kiptoo, Member Dr. Susan Mambo and Ms. Alice Oeri, Member and Board Vice Chair. This is the same Board panel that heard and determined the first Request for Review that was quashed by the High Court.
113. This court finds no fault in their hearing of the review by the same board. In any event, the applicant has not demonstrated nor proven how this amounts to procedural impropriety. This court cannot delve into the way the board exercised its discretion. There is no bar for the re hearing of a review by the same board. It is this court’s finding that though it would be desirable to set up a new board, there is no illegality in the same board rehearing the review and I so hold.
114. Having found that the applicant is entitled to the order of certiorari, the court is under a duty to decide whether or not to issue 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.
115. The Court of Appeal in the case of Kenya Pipeline Company Limited case V Hyosung Ebara Company Limited & 2 Others [2012] EKLR pronounced itself as follows:
“The Review Board is a specialized statutory tribunal established to deal with all complaints of breach of duty by the procuring entity. By Reg. 89, it has power to engage an expert to assist in the proceedings in which it feels that it lacks the necessary experience. S. 98 of the Act confers very wide powers on the Review Board. It is clear from the nature of powers given to the Review Board including annulling, anything done by the procurement entity and substituting its decision for that of the procuring entity that the administrative review envisaged by the Act is indeed an appeal. From its nature the Review Board is obviously better equipped than the High Court to handle disputes relating to breach of duty by procurement entity. It follows that its decision in matters within its jurisdiction should not be lightly interfered with.
Having regard to the wide powers of the Review Board we are satisfied That the High Court erred in holding That the Review Board was not competent to decide whether or not the 1st Respondent’s tender had met the mandatory conditions. The issue whether or not the 1st Respondent’s tender was rightly rejected as unresponsive was directly before the Review Board and the Board had jurisdiction to deal with it.
In conclusion, it is manifest that the application for Judicial Review was not well founded. The 1st Respondent did not establish that the Review Board had acted without jurisdiction or in excess of jurisdiction or in breach of rules of natural justice or that the decision was irrational. The Judicial Review was not confined to the decision making process but rather with the correctness of the decision on matters of both law and fact. So long as the proceedings of the Review Board were regular and it had jurisdiction to adjudicate upon the matters raised in the Request for Review, it was as much entitled to decide those matters wrongly as it was to decide them rightly.
The High Court erred in essence in treating the judicial review application as an appeal and in granting judicial review orders on the grounds which were outside the scope of Judicial Review jurisdiction.”
116. I am in agreement that from its nature the Review Board is better equipped than the High Court to handle disputes relating to breach of duty by procurement entity. It is my finding that the appropriate order to issue is a rehearing of the review.
Disposition:
117. The Exparte Applicant has made out a case for judicial review orders.
Orders:
1) A 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 28th September,2024 for purposes of being quashed is hereby issued.
2) The review shall be heard and determined by a panel other than the one that reheated the review within 7 days of today’s date.
1. The Application before this Court is the Applicant’s Notice of Motion application dated 7th October, 2024 brought under Under Article 23 (3) (f), 47 and 165 (6) (7) of the Constitution of Kenya, 2010, Section 4 (3) of the Fair Administrative Action Act, 2015 and Order 53 Rule 3 of the Civil Procedure Rules, 2010 and all other enabling provisions of the law.
2. The application seeks the following orders;
1) An 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 28th September, 2024 for the purposes of being quashed.
2) 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.
3) Costs of the suit.
3. The Application is supported by a statutory statement dated 2nd October 2024 and verifying affidavit sworn by Stephen Lokonyo of even date.
4. The Applicant’s case is 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) where at page 29 to 31 of 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 Applicant avers that it submitted a Tender in response to the said Tender Document for Provision of Medical Insurance Cover (Tender No. MTRH/T/86/2023-2024) which was opened together with others on 28th March, 2024 and on 14th June, 2022 the 1st Interested Party notified the Applicant of its intention of award its tender.
6. The Applicant deponed that 28th June, 2024 the 3rd Interested Party filed Request for Review No. 58 of 2024 wherein the 1st Interested Party and itself filed Responses and preliminary objections to the Request for Review and the 3rd Interested Party filed a Further Affidavit.
7. The Applicant posits that from the 1st Interested Party’s Response to the Request for Review, it was evidently clear that the 3rd Interested Party’s Tender did not meet the 70 marks threshold in the technical evaluation stage to proceed to financial evaluation and 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 considered the same 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
8. The Applicant continues to state that on 19th July, 2024, the Respondent delivered its decision to nullify and set aside the 1st Interested Party’s notification of intention to award the Applicant’s Tender and directed to re-admit the 3rd Interested Party’s Tender and re-evaluate it at the technical evaluation stage.
9. The Applicant on 1st August,2024 filed a Judicial Review suit challenging the decision of the Respondent to which the Court delivered its decision on 16th September, 2024 with orders inter alia:
“the Request for Review No. 58/2024 shall be readmitted for hearing and determined within 7 days of today’s date.”
10. The Applicant deponed that subsequent to the Judgement dated 16th September, 2024, it filed an application for review of the said orders on 18th September,2024 and sought conservatory orders of the re-hearing of the Request for Review scheduled for 19th September,2024 to which the court issued an order of stay on 18th September,2024 at 22.06 hours.
11. The Applicant further deponed that on Monday, 23rd September, 2024 at 10:30AM, when the matter was scheduled for mention to confirm compliance with court directions on hearing and disposal of the application, the Ex parte applicant’s advocate withdrew the said order thereby vacating the stay orders and the Respondent set down the re-hearing of the Request for Review on 27th September, 2024,
12. The Applicant avers that it appeared and relied on all previous documents filed and arguments filed but added a notice of preliminary objection dated 26thSeptember, 2024.
13. It is the Applicant’s case that the Respondent delivered its decision on Saturday 28th September,2024 at 4. 22pm which decision was decision-making process was tainted by illegality, irrationality and procedural impropriety for the following reasons:
a. The Respondent re-admitted, re-heard and re-determined the Request for Review outside the timelines prescribed by the Court in JR No. E170 of 2024 R-v- Public Procurement Administrative Review Board and others thereby acting without jurisdiction rendering the whole proceedings and decision of 28th September,2024 null and void. Whereas, the court issued a conservatory order of stay of rehearing scheduled for 19th September,2024 through an application for review filed by the Ex parte applicant, that application for review was withdrawn on 23rd September,2024 at 10.30 AM thereby paving way for rehearing and determination which was in the view of the developments supposed to be done by 26th September, 2024. The impugned decision here at was arrived to on 28th September,2024, well outside the court timelines.
b. The meaning and import of The Respondent’s directive for compliance within 21days from the date of the decision is that the Procuring Entity is required to comply within timelines that would in effect run concurrently and within the period in which an application for Judicial Review should be filed under section 175(1) of the of the Public Procurement and Asset Disposal Act,2015.
c. The Respondent’s directive on period within which to comply has not taken into consideration the automatic 14-day statutory stay, and therefore the orders could only have been that compliance be there after the lapse of the 14 days and not within the 14 days as purported thereby rendering the whole proceedings irredeemably incompetent.
d. Failure to take into account that the 3rd Interested Party’s Authority to Sue dated 25th June, 2024 was not executed by either two authorized signatories or a director in the presence of a witness who attests the signature;
e. 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;
f. 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;
g. 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;
h. Breached Section 37(2) of the Companies Act, 2015 and Regulation 203(2)(b) of the Public Procurement and Asset Disposal Regulations, 2020 is fatally defective;
i. 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;
j. 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;
k. Taking into account consideration pagination and power of attorney of the 3rd Interested Party that were irrelevant in the technical evaluation stage;
l. 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;
m. Amendment of the 1st Interested Party’s Technical Evaluation Criteria in the Tender Document without lawful authority;
n. The Respondent found as a matter of fact that a Power of Attorney is a mandatory requirement, that is as per paragraph 209, 210 of the decision, however it illegally found that the same was compliant with the Mandatory Tender Requirement No. 10 and 12 yet the same had admittedly not met the tenets of Sections 4 and 9 of the Registration of Documents Act and was non-compliant Section 19 of the Stamp Duty Act as regards registration and payment of stamp duty;
o. The Respondent's decision to direct the re-evaluation of the tender only at the Technical Evaluation Criteria is tainted with unfairness and bias as the 3rd Interested Party did not pass stage one, which was the preliminary/mandatory evaluation stage specifically on pagination and Power of Attorney. Stage one of the Tender Document which was the Preliminary/Mandatory evaluation Criteria made it a mandatory requirement that the bidder’s documents (including attachments) MUST be chronologically serialized. Secondly, there was a requirement to have a Letter from the firm giving authority to the person signing the tender to represent the firm (Power of Attorney), without material deviation, reservation, or omission. The document shall be duly signed and witnessed;
p. The Respondent was biased in that it re-admitted and re-heard the matter before the same Board members that heard the first Request for Review. It’s impractical nay impossible that the Respondent would have come out with a different reasoning and decision from the findings of its first decision. Therefore, the Respondent re-heard the Request for Review with a predetermined mindset and therefore was biased.
q. The decision to re-admit the 3rd Interested Party’s tender to the Technical Evaluation stage alone for re-evaluation and purportedly make good the anomalies that the Respondent has pointed out is unreasonable since the 3rd Interested Party did not meet the threshold on the requirements set out in the Tender Document and more specifically did not pass the Preliminary/Mandatory evaluation on pagination and Power of Attorney and therefore any reasonable decision would have to order for re-evaluation right from the Preliminary/mandatory evaluation stage.
r. 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 1st, Interested Party’s Evaluation Report with respect to evaluation criteria 1, 2 and 11 of the Tender Document.
s. A glean at the Hearing Notice dated 25th September, 2024 scheduling the matter for re-hearing for 27th September, 2024discloses that the same was only served upon the 3rd Interested Party and 1st Interested Party to the exclusion of the Applicant. This constitutes gross procedural impropriety intended to achieve trial by ambush and thereby disadvantage the Applicant. This open bias, ill will and hostility informs the decision that was arrived at. The decision to set aside the Notification of Award to the Applicant and the direction for re-admission of the tender at the Technical Evaluation Stage alone had long been made before the purported hearing and the refusal to serve a Hearing Notice is a clear affirmation of that very fact.
14. The Applicant filed written submissions dated 16th October, 2024.
15. The Applicant submits that two issues emerge for determination before this Honourable court
a) Whether this matter is Res Judicata HCJR/E170/2024 First Assurance Company Limited v Public Procurement Administrative Review Board and Moi Teaching and Referral Hospital and 2 others;
b) Whether the Applicant has made out a case for grant of Judicial Review Orders?
16. On the issue on res judicata, the Applicant that the doctrine of res judicata is not novel. Its genesis is in Section 7 of the Civil Procedure Act, Cap. 21 of the Laws of Kenya which provides that:
“No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such court.”
17. It further submits that the Supreme court has rendered itself on the threshold for proving the applicability of the doctrine in the case of John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others [2021] eKLR where the court held: -
[86] Were state the elements that must be proven before a court may arrive at the conclusion that a matter is res judicata. For res judicata to be invoked in a civil matter the following elements must be demonstrated:
a) There is a former Judgment or order which was final;
b) The Judgment or order was on merit;
c) The Judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and
d) There must be between the first and the second action identical parties, subject matter and cause of action
18. It is the Applicant’s submission that whereas the parties in the suit before this court are the same as was in HCJR/E170/2024, the subject matter and issues pleaded and material before this court for determination are fundamentally different from what was determined in HCJR/E170/2024; that there is a stark contrast in content the two matters. This court has been called upon to determine the following new issues inter alia:
(a) Whether the Respondent committed an illegality when it exceeded the jurisdiction provided by the court orders of 16th September,2024 by hearing the matter outside the prescribed timelines; This is not an issue that was handled in HCJR/E170/2024.
(b) Whether as a consequence of the contravention of the court orders of 16th September,2024, the Respondent breached section 175(6) of the Public Procurement and Asset Disposal Act, 2015 and therefore committed an illegality; this is not an issue that was handled in HCJR/E170/2024.
(c) Whether the Respondent’s decision of 28th September, 2024 directing the Accounting Officer of the Procuring Entity to re-admit the 3rd Interested Party’s tender to the Technical Evaluation Stage for re-evaluation within 21 days from the date hereof is ultra vires of section 175(1) of the Public Procurement and Asset Disposal Act,2015; in HCJR/E170/2024, the court handled compliance period of 14 days and not 21 days as has been pleaded in this new matter.
(d) Whether the Respondent acted irrationally and breached procedure to order re-admission of the 3rd Interested Party’s tender to the Technical Evaluation Stage alone for reevaluation instead of directing the whole process to start from inception especially the Preliminary/Mandatory Evaluation where the 3rd Interested Party had failed.
(e) Whether the decision to redirect the re-evaluation only at the Technical Evaluation Stage is biased, unfair and unlawful.
(f) Whether it was unreasonable for the same biased Board Panel to rehear the same matter.
(g) As of fact the decision being challenged is the decision dated 28th September,2024 and not the earlier decision dated 29th July,2024.
19. On the second issue for determination, the Applicant in its submission as to whether the Applicants’ applicant merits Judicial Review reliefs cites the case of Pastoli vs Kabale District Local Government Council & Others [2008] 2 EA 300 where the court held as follows: -
“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: See Council of Civil Service Union v Minister for the Civil Service [1985] AC 2; and also, Francis Bahikirwe Muntu and others v Kyambogo University, High Court, Kampala, miscellaneous application number 643 of 2005 (UR).
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: Re An Application by Bukoba Gymkhana Club [1963] EA 478 at page 479 paragraph “E”.
Procedural impropriety is when there is failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision. (Al-Mehdawi v Secretary of State for the Home Department [1990] AC 876).”
20. It is the Applicants’ submission that The Respondent acted without jurisdiction prescribed by court orders of 16th September, 2024 as it re-admitted, re-heard and re-determined the Request for Review outside the timelines prescribed by the Court in JR No. E170 of 2024 R-v- Public Procurement Administrative Review Board and others thereby acting without jurisdiction rendering the whole proceedings and decision of 28th September,2024 null and void resulting in the impugned proceedings and decision on 28th September, 2024.
21.The Applicant contends that the Respondent concedes under paragraphs 117 of its decision that the conservatory order of stay of proceedings was issued on the 18th September,2024 at 22.06 hrs. and the same lapsed on 23rd September,2024 at 10.30 am when the application for review was withdrawn, however, and ironically so, proceeds to render itself under paragraph 119 thereof that it became aware of the lapse of the order on 24th September, 2024, a day after the withdrawal of the review application and hence proceeds to exclude the 23rd September, 2014 and 24th September, 2024 in its computation of days in purported compliance with section 57 of the Interpretation and General Provisions Act, Chapter 2 of the Laws of Kenya.
22. The Applicant submits that the filing of a suit or application and hearing it out of time and without leave of Court is not just a procedural defect and cannot be a technicality curable under Article 159 (2) (d) of the Constitution and cites the case of Mutia Muindi ya Matiba Auctioneers –vs- CFC Stanbic Ltd & Ano [2015] eKLR, where it was held that:
“Time bar is both procedural and substantive issue which goes to the jurisdiction of the Court. The corollary of the time bar is that the authority of Court over the dispute is extinguished.”
23. It also relies on the case of Mutia Muindi ya Matiba Auctioneers –vs- CFC Stanbic Ltd & Ano [2015] eKLR, it was held that:
“Time bar is both procedural and substantive issue which goes to the jurisdiction of the Court. The corollary of the time bar is that the authority of Court over the dispute is extinguished.”
24. The Applicant further submits that the Request for rehearing the Review No. 58/2024 pursuant to the Court orders dated16th September,2024 was mandatory and ought to have been heard and concluded by 26thSeptember,2024. In the absence of compliance of the said court orders, it means that the impugned rehearing was not sanctioned by any law or court order and therefore the Respondent acted ultra vires.
25. The Applicant cites the case of Okoiti & 3 Others v Anne Waiguru, the Cabinet Secretary, Devolution and Planning & 5 Others (Petition 42 & 27 of 2014 (Consolidated)) [2021] KEELRC 2306 (KLR) (30th July, 2021) (Judgment) where the court held on what amounts to an ultra vires act as follows:
“An act is ultra vires when the decision-making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without Jurisdiction or ultra vires, or contrary to the provisions of a law or its principles renders the decision made laced with illegality.”
26. The Applicant also submits that Section 175(6) of the Public Procurement and Asset Disposal Act,2015 is instructive that any decision arrived at in breach of orders of the High Court is null and void and thus proceedings of 27th September, 2024 and determination of 28th September,2024 are in violation of the provision of the said section.
27. The Applicants argue that by dint of Section 175(1) of the Public Procurement and Asset Disposal Act, 2015 the proceedings and impugned decision by Respondent irredeemably incompetent.
28. It is also the Applicants’ submission that Respondent acted irrationally to order re-admission of the 3rd Interested Party’s tender to the Technical Evaluation Stage alone for reevaluation instead of directing the whole process to start from inception and that decision to direct the re-evaluation of the tender only at the Technical Evaluation Criteria tainted with unfairness and bias as the 3rd Interested Party did not pass stage one.
29. The Applicant also posits that Respondent’s decision was not compliant with Article 47(1) of the Constitution of Kenya as read with section 4(1)(2)(3) of the Fair Administrative Action Act in that the same was unlawful and unreasonable for flouting sections 4 and 9 of the Registration of Documents and section 19 of the Stamp Duty Act.
30. If further submits that it was unreasonable and illogical for the Respondent to re-admit and re-hear the matter before the same Panel of Board members that heard the first Request for Review and a breach of Article 50(1) of the Constitution of Kenya.
31. The Applicant thus submits that its application has merit prays that this honorable court to grant the prayers for certiorari and mandamus with costs.
Respondent’s case;
32. In opposition to the Applicants’ Application, the Respondents filed a notice of preliminary objection dated 15th October, 2024 on the ground that: -
i. The Applicant’s Judicial Review Application dated 7th October 2024 and the entire proceedings in this suit is res judicata and offends the express provisions of Section 7 of the Civil Procedure Act Cap 21 Laws of Kenya as issues raised have been heard and determined to finality by this Honourable Court in HCJR/E170/2024 First Assurance Company Limited v Public Procurement Administrative Review Board and Moi Teaching and Referral Hospital and 2 Others
33. The Respondent also filed Replying Affidavit dated 15th October, 2024 sworn by James Kilaka and written submissions dated 5th November, 2024.
34. The Respondent deponed that the Application before this court is an appeal against the Respondent’s Decision dated 28th September 2024 with respect to the findings of the Respondent on the Request for Review No. 58 of 2024 and is being disguised as a judicial review application.
35. The Respondent contends that the Application dated 7th October 2024 and entire proceedings in this suit is res judicata and offends the express provisions of Section 7 of the Civil Procedure Act Cap 21 Laws of Kenya as issues raised have been heard and determined to finality by this Honourable Court in HCJR/E170/2024 First Assurance Company Limited v Public Procurement Administrative Review Board and Moi Teaching and Referral Hospital and 2 Others where this Honourable Court rendered itself on 16th September 2024 and on 23rd September 2024 where it ordered that the court is functus officio and its Judgment delivered on 16th September 2024 in HCJR/E170/2024 was final and binding upon parties.
36. The Respondent avers that the 28th June 2024, the 3rd Interested Party herein filed a Request for Review Application No. 58 of 2024 dated 26th June 2024 before the Respondent (hereinafter “Request for Review No. 58 of 2024”) seeking the following orders:
a)The Decision of the Procuring Entity vide its Letter dated 14th June 2024 and referenced ELD/MTRH/SSE/7/4/VOL.XII/2017 issued on 15th June 2024 at 6.05 pm being the Notification of Intention to Award for Provision of Insurance Services for Moi Teaching & Referral Hospital be and are hereby declared null and void and the same be and are set aside.
b)An Order that the Procuring Entity is hereby directed to re-admit and re-evaluate the Applicant’s bid in the financial stage alongside other entities which made it to financial stage in accordance with the Act and the Constitution.
c)That the 1st and 2nd Respondent (Procuring Entity) be ordered award the Tender to the Applicant and or enter into negotiations with the Applicant being the Tenderer with the lowest bid.
d)An Order directing the Procuring Entity and its Chief Accounting Officer to pay costs of the Review; and
e)Any other necessary orders as are necessary for the ends of justice and under the circumstances of the case herein as provided by Section 173 of the Public Procurement and Asset Disposal Act.
37. The Responder further deponed that the Respondent in its Decision dated 19th July 2024 in Request for Review No. 58 of 2024 considered the parties’ pleadings, documents, written and oral submissions, the list and bundle of authorities together with the confidential documents submitted to the Board pursuant to Section 67(3) (e) of the Act and found the following issues called for determination:
a) Whether the 3rd Respondent’s Preliminary Objection as filed is proper.
b) Whether the 3rd Respondent’s has substantiated its case with respect to the allegation that Mr. John Kimani does not have authority to sign, swear or make statements in support of the instant Request for Review on behalf of the Applicant as deponed in its Affidavit sworn on 15th July 2024 by Stephen Lokonyo.
c) Whether the Board has jurisdiction to hear and determine the instant Request for Review;
In determining the third issue, the Board shall make a determination on the following sub-issues:
a) Whether the instant Request for Review has been instituted within the statutory period of 14 days of notification of award in accordance with Section 167(1) of the Act read with Regulation 203(2)(c)(ii) of Regulations 2020 to invoke the jurisdiction of the Board;
b) Whether the Applicant has locus standi before the Board.
Depending on the determination of the third issue;
d) Whether the Evaluation Committee evaluated the Applicant’s tender submitted in the subject 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.
e) What orders should the Board grant in the circumstances?
38. It followed that the Respondent in exercise of the powers conferred upon it under the Public Procurement and Asset Disposal Act (hereinafter referred to as “the Act”) made the following final orders with respect to Request for Review No. 58 of 2024:
A. The 3rd Respondent’s Preliminary Objection dated 10th July 2024 and filed on 12th July 2024 and the Preliminary Objection contained in the 1st and 2nd Respondent Statement Against the Application for Request for Review sworn on 5th July 2024 by Evans Kipchumba Kiprotich and filed on even date be and is hereby dismissed.
B. The Notification of Intention to Award issued to the 3rd Respondent dated 14th June 2022 with respect to Tender No. MTRH/T/86/2023-2024 for Provision of Medical Insurance Cover, be and is hereby nullified and set aside.
C. The Notifications of Intention Award addressed to the unsuccessful tenderers including the Applicant dated 14th June 2024 with respect to Tender No. MTRH/T/86/2023-2024 for Provision of Medical Insurance Cover, be and are hereby nullified and set aside.
D. The 1st Respondent is hereby ordered to re-admit the Applicant’s tender to the Technical Evaluation 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.
E. Further to Order No. D above, the 1st and 2nd Respondents are hereby directed to proceed with the procurement process to its logical conclusion.
F. Given that the procurement process for the subject tender is not complete, each party shall bear its own costs in the Request for Review.
39. The Respondent contends that the Applicant being dissatisfied with its decision dated 19th July 2024, sought judicial review before this Honourable Court against the said decision in Nairobi High Court Judicial Review Misc. Civil Application No. E170 of 2023 wherein judgment was delivered on 16th September 2024 granting orders inter alia g) The Request for Review No. 58/2024 shall be readmitted for hearing and determined within 7 days of today’s date.
40. The Respondent deponed that in compliance with the High Court Orders, it notified parties and all tenderers in the subject tender of an online hearing of the instant Request for Review slated for 19th September 2024 at 4.00 p.m. vide a Hearing Notice dated 16th September 2024 and through the link availed in the said Hearing Notice.
41. The Respondent further deponed that in the morning of 19th September 2024, the Applicant’s counsel notified the Respondent vide email that this Honourable Court had stayed the rehearing slated for 19th September 2024 at 4.00 p.m. pending hearing and determination of an application for review of the High Court’s Judgment in Nairobi High Court Judicial Review Misc. Civil Application No. E170 of 2023 and it followed that on 24th September 2024, the Respondent was notified that the Ex parte Applicant’s Notice of Motion application dated 18th September 2024 in Nairobi High Court Judicial Review Misc. Civil Application No. E170 of 2023 had been marked as withdrawn and the stay orders issued by this Honourable court on 18th September 2024 vacated.
42. Subsequently, the Respondent vide email dated 25th September 2024 and Hearing Notice dated 25th September 2024, proceeded to notify parties and all tenderers in the subject tender that the online hearing of the instant Request for Review had been rescheduled to 27th September 2024 at 10.30.
43. In Response to the notice, on 26th September 2024, the Ex parte Applicant herein filed through MB Law Advocates LLP a Notice of Change of Advocates dated 26th September 2024 together with a Notice of Preliminary Objection dated 26th September 2024. The 1st and 2nd Interested Parties in the case before this court also filed a Notice of Preliminary Objection dated 26th September 2024 together with Written Submissions dated 26th September 2024.
44. The Respondent avers that the Request for Review was reheard on 27th September 2024 and the Respondent having considered the parties’ pleadings, documents, written and oral submissions, the list and bundle of authorities together with the confidential documents submitted to the Board pursuant to Section 67(3) (e) of the Act in its Decision dated 28th September 2024 on 28th September 2024 in exercise of the powers conferred upon it under the Public Procurement and Asset Disposal Act (hereinafter referred to as “the Act”) made the following final orders with respect to Request for Review No. 58 of 2024:
a) The 1st, 2nd, and 3rd Respondents’ Notice of Preliminary Objections dated 26th September 2024 and filed on even date be and are hereby dismissed.
b) The 3rd Respondent’s Preliminary Objection dated 10th July 2024 and filed on 12th July 2024 and the Preliminary Objection contained in the 1st and 2nd Respondent Statement Against the Application for Request for Review sworn on 5th July 2024 by Evans Kipchumba Kiprotich and filed on even date be and is hereby dismissed.
c) The Notification of Intention to Award issued to the 3rd Respondent dated 14th June 2022 with respect to Tender No. MTRH/T/86/2023-2024 for Provision of Medical Insurance Cover, be and is hereby nullified and set aside.
d) The Notifications of Intention Award addressed to the unsuccessful tenderers including the Applicant dated 14th June 2024 with respect to Tender No. MTRH/T/86/2023-2024 for Provision of Medical Insurance Cover, be and are hereby nullified and set aside.
e) The 1st Respondent is hereby ordered to re-admit the Applicant’s tender to the Technical Evaluation stage for re-evaluation and make good the anomalies that the Board has pointed out herein in the procurement process of the subject tender in accordance with the provisions of the Tender Document, Regulations 2020, the Act and Article 227 of the Constitution within 21 days from the date hereof while taking into consideration the Board’s findings in this Request for Review.
f) Further to Order No. D above, the 1st and 2nd Respondents are hereby directed to proceed with the procurement process to its logical conclusion.
g) Given that the procurement process for the subject tender is not complete, each party shall bear its own costs in the Request for Review.
45. The Respondent further deponed that in determining the issue on whether the rehearing of the instant Request for Review was time barred it was guided by provisions under Section 57 of the Interpretation and General Provisions Act, Chapter 2 of the Laws of Kenya in computing time within which the 7 days ordered for rehearing would lapse from the date of delivery of the High Court’s Judgment on 16th September 2024 while noting the stay orders issued on 19th September 2024 vacated on 23rd September 2024 and notification of the said withdrawal on the 24th September 2024 and it found that it had the 16th, 17th, 18th, 25th, 26th, 27th and 28th September 2024 to rehear the matter and as such, it was within the 7 days’ timelines ordered by the High Court and thus was seized of jurisdiction to rehear the instant Request for Review.
46. The Respondent held that Preliminary Objection dated 10th July 2024 by the Applicant did not constitute a proper ground of a preliminary objection as it was incapable of disposing Request for Review No. 58 of 2024 and that it failed to substantiate its case with respect to the allegation that John Kimani does not have authority to sign, swear or make statements in support of Request for Review No. 58 of 2024 on behalf of the 3rd Interested Party.
47. The Respondent also held that it had jurisdiction to hear and determine Request for Review No. 58 of 2024 and that it also took cognizance of the Technical Evaluation Criteria of the Tender Document and the scoring by the Evaluation Committee of the 3rd Interested Party’s bid document and found that the Evaluation Committee failed to evaluate the 3rd Interested Party’s bid document submitted in the subject 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.
48. The Respondent avers that the Applicant’s judicial review proceedings as contemplated under Section 175(1) of the Act within the stipulated 14 days from the date of the Respondent’s decision and this ground of objection is unfounded and baseless.
49. It is the Respondent’s case that by dint of Section 67(3)(e) of the Act, the contents of the 1st & 2nd Interested Party’s Evaluation Report as submitted to it remain confidential information which the Applicant ought not to be privy to and as such, it had no obligation to disclose the same to the Applicant.
50. The Respondent further states it acted within the confines of the Constitution, the Act, Regulations 2020, the Fair Administrative Actions Act and the rule of law in its findings in Request for Review No. 58 of 2024 and the allegation that it amended the Technical Evaluation Criteria as contained in the Tender Document remain unsubstantiated and false.
51. The Respondent deponed that its decision dated 28th September 2024 was within the provisions of Article 227 of the Constitution. The it was well reasoned and was neither unlawful, misconceived, erroneous, irrational, nor in violation of Applicant’s Legitimate Expectations.
52. It is the Respondent’s case that Applicant has failed to demonstrate any elements of illegality, irrationality, procedural impropriety and/or unfairness in the manner in which the Respondent considered and interrogated the evidence, documents, pleadings, and information before it in arriving at its Decision in Request for Review No. 58 of 2024.
53. The Respondent submits that the preliminary objection herein fits the definition of a preliminary objection per the leading case of Mukisa Biscuits Manufacturing Co. Ltd Vs West End Distributors Ltd [1969] E.A.696 in the celebrated case Law J.A states a preliminary objection to be thus: -
“so far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit”
Sir Charles Newbold, President stated in the same judgment as follows: -
“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion”
54. The Respondent further submits that The Civil Procedure Act Cap 21, at Section 7 provides as follows;
7. Res judicata No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court. Explanation.
(1) ...
(2) …
(3) …
(4) Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
(5) ….
(6) …
55. The Respondent submits that the matter before this court is res judicata as the same was heard and determined in the case of HCJR/E170/2024 First Assurance Company Limited V Public Procurement Administrative Review Board and Moi Teaching and Referral Hospital and 2 Others. It cites the case of Kenya Commercial Bank Limited vs Benjoh Amalgamated Limited [2017] eKLR where the Court stated;
“The doctrine is grounded on public interest and thus transcends the parties’ interests in a suit. Public interest requires or demands that litigation must at some point come to an end.”
The Court quoted the case of Benjoh Amalgamated Limited & Another v Kenya Commercial Bank Limited [2014] eKLR, an application between the same parties, where the Court in that matter went on to state;
“The courts have never accepted res judicata as an absolute principle of law which applies rigidly in all circumstances irrespective of the injustice of the case. There is one established exception to this doctrine, and that is where the Court itself has made such an egregious mistake that grave injustice to one or more of the parties concerned would result if the Court’s erroneous decision were to form the basis of an estoppel against the aggrieved party.... In such a case, the tension between justice principle and the finality principle is resolved in favour of the former.”
“... the general rule is that where a litigant seeks to reopen in a fresh action an issue which was previously raised and decided on the merits in an earlier action between the same parties, the public interest in the finality of litigation (“the finality principle”) outweighs the public interest in achieving justice between the parties (“the justice principle”) and therefore the doctrine of res judicata applies. In such cases, it is usually immaterial that the decision which gives rise to the estoppel is wrong because “a competent tribunal has jurisdiction to decide wrongly, as well as correctly, and if it makes a mistake its decision is binding unless corrected on appeal.”
Additionally, the court made further reference to Mburu Kinyua vs. GachiniTuti [1978] KLR 69; [1976-80] 1 KLR 790 and Churanji Lal & Co vs. Bhaijee (1932) 14 KLR 28 where it was held that;
“The general principle is that a party cannot in a subsequent proceeding raise a ground of claim or defence which has been decided or which, upon the pleadings or the form of issue, was open to him in a former proceeding between the same parties. The mere discovery of fresh evidence (as distinguished from the development of fresh circumstances) on matters which have been open for controversy in the earlier proceedings is no answer to a defence of res judicata...The law with regard to res judicata is that it is not the case, and it would be intolerable if it were the case, that a party who has been unsuccessful in a litigation can be allowed to re-open that litigation merely by saying, that since the former litigation there is another fact going exactly in the same direction with the facts stated before, leading up to the same relief which I asked for before, but it being in addition to the facts which I have mentioned, it ought now to be allowed to be the foundation of a new litigation, and I should be allowed to commence a new litigation merely upon the allegation of this additional fact. The only way in which that could possibly be admitted would be if the litigant were prepared to say, I will show you that this is a fact which entirely changes the aspect of the case, and I will show you further that it was not, and could not by reasonable diligence have been ascertained by me before...The point is not whether the respondent was badly advised in bringing the first application prematurely; but whether he has since discovered a fact which entirely changes the aspect of the case and which could not have been discovered with reasonable diligence when he made his first application.”
56. It is the Respondent’s submission that it acted within their powers as is mandated by the Public Procurement and Asset Disposal Act under Section 173 and that the Applicant has not established that the it has acted unreasonably, irrationally or in excess of its jurisdiction It cites the case of Pastoli vs. Kabale District Local Government Council and Others [2008] 2 EA 300 in which the Court citing Council of Civil Unions vs. Minister for the Civil Service [1985] AC 2 and An Application by Bukoba Gymkhana Club [1963] EA 478 at 479 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 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 a failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision.”
57. The Respondent also makes reliance on the case of Kenya Pipeline Company Limited case V Hyosung Ebara Company Limited & 2 Others [2012] Eklr where the Court pronounced itself as follows:
“The Review Board is a specialized statutory tribunal established to deal with all complaints of breach of duty by the procuring entity. By Reg. 89, it has power to engage an expert to assist in the proceedings in which it feels that it lacks the necessary experience. S. 98 of the Act confers very wide powers on the Review Board. It is clear from the nature of powers given to the Review Board including annulling, anything done by the procurement entity and substituting its decision for that of the procuring entity that the administrative review envisaged by the Act is indeed an appeal. From its nature the Review Board is obviously better equipped than the High Court to handle disputes relating to breach of duty by procurement entity. It follows that its decision in matters within its jurisdiction should not be lightly interfered with.
Having regard to the wide powers of the Review Board we are satisfied That the High Court erred in holding That the Review Board was not competent to decide whether or not the 1st Respondent’s tender had met the mandatory conditions. The issue whether or not the 1st Respondent’s tender was rightly rejected as unresponsive was directly before the Review Board and the Board had jurisdiction to deal with it.
In conclusion, it is manifest that the application for Judicial Review was not well founded. The 1st Respondent did not establish that the Review Board had acted without jurisdiction or in excess of jurisdiction or in breach of rules of natural justice or that the decision was irrational. The Judicial Review was not confined to the decision making process but rather with the correctness of the decision on matters of both law and fact. So long as the proceedings of the Review Board were regular and it had jurisdiction to adjudicate upon the matters raised in the Request for Review, it was as much entitled to decide those matters wrongly as it was to decide them rightly.
The High Court erred in essence in treating the judicial review application as an appeal and in granting judicial review orders on the grounds which were outside the scope of Judicial Review jurisdiction.”
58. The Respondent submit that Applicant has not demonstrated that it is entitled to the judicial review orders of certiorari, mandamus and prohibition hence the application should be dismissed with costs to the respondent however section 175(7) of the PAD Act forbids award of costs to any party in the event the Board`s decision is quashed by the High Court.
1st and 2nd Interested Parties case;
59. In opposition to the Applicants’ Application, the 1st and 2nd Interested Parties (hereinafter referred to as IP’s) filed a Replying Affidavit dated 18th October, 2024 and Further Replying Affidavit dated 26th October, 2024 sworn by Evans Kipchumba Kiprotich and written submissions dated 21st October, 2024.
60. The 1st and 2nd IPs deponed that this Honourable court delivered a determination on the Applicant’s request for a judicial review, and also the Public Procurement Administrative Review Board delivered a ruling beyond 23'd September 2024 by virtue of Section 175 (3) (4) (5) and (6) of the Public Procurement and Assets Disposal Act of 2015.
61. The 1st and 2nd IPs further deponed that the Public Procurement Administrative and Review Board (PPARB) delivered a ruling on the tender proceeding and that the procuring entity tender evaluation committee to re-admit the applicant to the technical evaluation stage contrary to the provisions of section 80 (2) of the Public Procurement and assets Disposal Act, 2015 as set out in the bidding document.
62. The 1st and 2nd IPs aver that on 18th October 2024, they received a letter from the 3rd Interested Party’s advocate reference M&G OMW/80 dated 17th October 2024 to the effect that the 1" & 2"d interested parties are meant to comply with the orders of the Board (PPARB) dated 28 September 2024 as is no stay of the honorable Boards decision and in event of non-compliance they will be cited for contempt and disobedience of lawful orders.
63. The 1st and 2nd IPs submit that two issues emerge for determination before this court that is Whether the Respondent PPARB acted without jurisdiction when rehearing Application for Review number 58 0f 2024 and the second issue is that of costs.
64. It is their submission that PPARB acted without jurisdiction in rehearing application for review number 58 of 2024 beyond 23rd October 2024 as once 7 days from the Judgement delivered on 16th September, 2024 (Milimani HC No. HCJR/E170/2024) by this Honourable Court ended the PPARB lacked jurisdiction to rehear the application for review No. 58 of 2024 as is provided in Section 175 (4) of the Act.
65. They cite the case of ADK Technologies Ltd in Consortium with Computer Technologies Ltd v Public Procurement Administrative Review Board & 4 Others (Civil Appeal E598 of 2021) (2022) KECA 407 (KLR) (4 March 2022) (judgement) where the court dealt with the issue of the effect of Section 175 (4). The Appellate Court rendered itself as follows: -
8. we have carefully considered the question of our jurisdiction in this appeal …….
10 In the Aprim case, the court stated that Section 175 was couched in mandatory terms. The Court rendered itself thus
A perusal of Section 175 of the Act reveals parliament’s unmistakable intention to constrict the time taken for the filing hearing and determination of public procurement disputes in keeping with the Act’s avowed intent and object of expeditious resolution of these disputes.
Parliament was fully engaged and intentional in setting the timelines in the Section. But it did not stop there. In one of the rarer instances where all discretion is totally shut out, Parliament expressly enacted a consequence to follow default or failure to file or to decide (by PPARB within 7 days after high court decision. emphasize mine) within prescribed times: The decision of the Board (and in this case that of the High Court) would crystalize and be invested with finality.
Our reading of the Act is that the High Court (and the PPARB in this case) was under an express duty to make its determination within the time prescribed [by PPARB within7 days as per the High Court Orders and Section 175 (4) of the Act]. During such time did its jurisdiction exist, but it was time bound jurisdiction that ran out and ceased by effluxion of time. The moment the 45 days (7days after HC decision for PPARB and any aggrieved party in this matter) ended, the jurisdiction also ended. Thus any judgement (in our case PPARB) decision rendered outside time would be without jurisdiction and therefore a nullity, bereft of any force or effect in law” (Emphasis added)
66. The 1st and 2nd IPs also make reliance on the case of Samuel Macharia & Anor vs Kenya Commercial Bank Limited & 2 Others (2012) eKLR.
“64 A court’s jurisdiction flows from either the Constitution or legislation or both. Thus a Court of Law (as well as a quasi-judicial body like PPARB) can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate itself jurisdiction exceeding that which is conferred upon it by law. We agree with Counsel for the 1st and 2nd Respondents in his submission that the issue as to whether a court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the court (or quasi-Judicial body) cannot entertain any proceedings. …….. It cannot expand its jurisdiction through judicial craft or innovation. …….. Where the Constitution confers upon parliament power to set the jurisdiction of a Court of law or tribunal (PPARB), the legislature would be within the authority to prescribe the jurisdiction of such a court or tribunal by statute law.”
The Court of appeal guided by the above Supreme Court decision in the Aprim case concluded thus:
It seems clear to us that the jurisdiction of the High Court (and PPARB in our humble opinion) in public procurement judicial review (applications for review before PPARB) proceedings is expressly limited in terms of time and is not open to expansion by court (PPARB). To step out of time is to step out of jurisdiction and any act or decision outside jurisdiction is, by application of first principles a nullity.
67. The 1st and 2nd IPs submit that applicant has established a case for the grant of judicial review orders of certiorari to quash the decision of the Respondent dated 28th September 2024 , and mandamus to direct the 1st and 2nd Interested Party to re-instate the “notification of intention to award” issued to the Ex-parte applicant (3rd Respondent) and the unsuccessful tenderers dated 14th June 2024 and progress the tender No. MTRH/T/86/2023-2024 for Medical Insurance Cover to its logical conclusion.
68. On the issue of costs, it is their submissions that the Respondent should bear costs, however Section 175 (7) of the Act provides that where a decision of the Review Board has been quashed, the High Court shall not impose costs on either party.
The 3rd Interested Party’s case;
69. In opposition to the Applicants’ Application, the 3rd Interested Party (hereinafter referred to as 3rd IP) filed a Replying Affidavit dated 7th November, 2024 sworn by Mercy Ruguru Ndegwa and written submissions dated 4th November, 2024.
70. The 3rd IP deponed that the Applicant initiated an initial Judicial Review proceedings having been dissatisfied with the Respondent’s initial decision rendered on 19th July 2024 in PPARB Application No. 58 of 2024 where the Respondent found as successful the 3rd Interested Party’s Request for Review No. 58 of 2024 dated 26th June 2024 and filed on 28th June 2024. The initial Judicial Review proceedings were concluded by this Honourable court and judgment delivered on 16th September, 2024.
71. The Respondent further deponed that on the Applicant on 18th September 2024 filed an application under certificate of urgency seeking a stay of prosecution of the court orders from the said judgement as well as to have its decision reviewed. This honorable court granted a temporary stay besides directions on disposal of the said application requiring parties to appear before it on the 23rd September 2024 to confirm compliance.
72. The 3rd Interested Party filed a Preliminary Objection together and a Replying Affidavit and on the date of mention for compliance only the Ex- Parte Applicant and 3rd Interested Party attended court the Ex- Parte Applicant withdrew its application consequently leading to collapse of the interim orders that were existing.
73. The 3rd IP posits that the stay orders issued on 18th September 2024 were in place on dates between 18th September 2024 to 23rd September 2024 (both days inclusive) and that as of the 23rd September 2024, the Respondent had spent only one day i.e. the 18th September 2024 from the 7-day accorded to it to re-admit, re-hear and determine Request for Review PPARB NO 58 of 2024.
74. Thereafter on the September 2024, the Respondent invited all the parties through their advocates for a re-hearing via email on the 27th September 2024 and on the hearing date, the firm of Busiega came on record in place of the firm of Mwaniki Gachuba & Company Advocates having filed their Notice of Change of Advocates on the 26th September, 2024 as well as a detailed Notice of Preliminary Objection dated 26th September, 2024.
75. The 3rd IP avers that all parties were heard on 27th September, 2024 and the Respondent on 28th September 2024 at 1622 Hrs rendered its decision via Email to all the parties and pursuant to the said decision the Applicant who is who frivolous and vexatious instituted the application that is before this Honourable court.
76. The 3rd IP deponed that the Respondent gave the 1st & 2nd Interested Party 21 days to comply with its directions which duration accorded the Ex parte Applicant and any aggrieved party an opportunity to institute Judicial Review proceedings as contemplated under Section 175 of PPADA, 2015 and that its directions it was expressly directed that the in complying with the its directions within the 21 days the 1st and 2nd Interested Parties Constituting the Procuring Entity were to strictly adhere to in accordance with the provisions of the Tender Document, Regulations 2020, the PPADA Act and Article 227 of the Constitution of Kenya.
77. The 3rd IP further deponed that in its request for review, the 3rd Interested Party further contended that it was denied marks under Item Numbers 1 (i) (b), (iii), (v), 2, 6 and 11 under the scoring criteria of the 1st and 2nd Interested Parties (Procuring Entity’s) Tender Document thus it could not have been possible for the 3rd Interested Party to get to technical evaluation stage where the Procuring Entity said it failed had it not passed the Mandatory Stage which preceded it. This was therefore a belated afterthought which advanced by the Procuring Entity which was found to have favoured the Applicant during Evaluation.
78. The 3rd IP avers that the application before this Honourable court falls short on the foundational basis of instituting judicial review proceedings pursuant to Section 7 (2) of the Fair Administrative Action Act 2015 and that it has no aspects of illegality, irrationality or procedural impropriety substantiated herein in respect to the Respondent’s Decision to warrant interference by this Court.
79. The 3rd IP submits that it submitted a completed tender to the Procuring Entity’s provided address being Moi Teaching & Referral Hospital, P.O Box 3 – 30100 Eldoret on 28th March 2024 at 10.00 am forwarded vide a Letter dated 28th April 2024 on which date the tenders were opened and evaluation commenced for the eight (8) Tenders who had submitted their respective bids.
80. It is the 3rd IP’s submission that it is an established principle that the Court will not offend the principal of res judicata as was held in Kenya Commercial Bank Limited vs Benjoh Amalgamated Limited [2017] eKLR where the Court stated;
“The doctrine is grounded on public interest and thus transcends the parties’ interests in a suit. Public interest requires or demands that litigation must at some point come to an end.”
The Court quoted the case of Benjoh Amalgamated Limited & Another v Kenya Commercial Bank Limited [2014] eKLR where the court held: -
“The courts have never accepted res judicata as an absolute principle of law which applies rigidly in all circumstances irrespective of the injustice of the case. There is one established exception to this doctrine, and that is where the Court itself has made such an egregious mistake that grave injustice to one or more of the parties concerned would result if the Court’s erroneous decision were to form the basis of an estoppel against the aggrieved party. In such a case, the tension between justice principle and the finality principle is resolved in favour of the former.”
“the general rule is that where a litigant seeks to reopen in a fresh action an issue which was previously raised and decided on the merits in an earlier action between the same parties, the public interest in the finality of litigation (“the finality principle”) outweighs the public interest in achieving justice between the parties (“the justice principle”) and therefore the doctrine of res judicata applies. In such cases, it is usually immaterial that the decision which gives rise to the estoppel is wrong because “a competent tribunal has jurisdiction to decide wrongly, as well as correctly, and if it makes a mistake its decision is binding unless corrected on appeal.”
Additionally, the court made reference to Mburu Kinyua vs. GachiniTuti [1978] KLR 69; [1976-80] 1 KLR 790 and Churanji Lal & Co vs. Bhaijee (1932) 14 KLR 28 where it was held that;
“The general principle is that a party cannot in a subsequent proceeding raise a ground of claim or defence which has been decided or which, upon the pleadings or the form of issue, was open to him in a former proceeding between the same parties. The mere discovery of fresh evidence (as distinguished from the development of fresh circumstances) on matters which have been open for controversy in the earlier proceedings is no answer to a defence of res judicata The law with regard to res judicata is that it is not the case, and it would be intolerable if it were the case, that a party who has been unsuccessful in a litigation can be allowed to re-open that litigation merely by saying, that since the former litigation there is another fact going exactly in the same direction with the facts stated before, leading up to the same relief which I asked for before, but it being in addition to the facts which I have mentioned, it ought now to be allowed to be the foundation of a new litigation, and I should be allowed to commence a new litigation merely upon the allegation of this additional fact. The only way in which that could possibly be admitted would be if the litigant were prepared to say, I will show you that this is a fact which entirely changes the aspect of the case, and I will show you further that it was not, and could not by reasonable diligence have been ascertained by me before...The point is not whether the respondent was badly advised in bringing the first application prematurely; but whether he has since discovered a fact which entirely changes the aspect of the case and which could not have been discovered with reasonable diligence when he made his first application.”
81. The 3rd IP further submit that Respondent acted within the powers conferred to it by Section 173 of the Public Procurement and Asset Disposal Act in reaching its decision in the request for review and that its decision does not fall within the prescription and threshold of unreasonableness, illegality and neither was it arrived at with procedural impropriety.
82. They make reliance on the case of Council of Civil Unions vs. Minister for the Civil Service [1985] AC 2 and an Application by Bukoba Gymkhana Club [1963] EA 478 at 479 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 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 a failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision.”
83. It also cites the case of Kenya Pipeline Company Limited Case V Hyosung Ebara Company Limited & 2 Others [2012] Eklr where the Court pronounced itself as follows:
“The Review Board is a specialized statutory tribunal established to deal with all complaints of breach of duty by the procuring entity. By Reg. 89, it has power to engage an expert to assist in the proceedings in which it feels that it lacks the necessary experience. S. 98 of the Act confers very wide powers on the Review Board. It is clear from the nature of powers given to the Review Board including annulling, anything done by the procurement entity and substituting its decision for that of the procuring. entity that the administrative review envisaged by the Act is indeed an appeal. From its nature the Review Board is obviously better equipped than the High Court to handle disputes relating to breach of duty by procurement entity. It follows that its decision in matters within its jurisdiction should not be lightly interfered with.
Having regard to the wide powers of the Review Board; we are satisfied That the High Court erred in holding That the Review Board was not competent to decide whether or not the 1st Respondent’s tender had met the mandatory conditions. The issue whether or not the 1st Respondent’s tender was rightly rejected as unresponsive was directly before the Review Board and the Board had jurisdiction to deal with it.In conclusion, it is manifest that the application for Judicial Review was not well founded. The 1st Respondent did not establish that the Review Board had acted without jurisdiction or in excess of jurisdiction or in breach of rules of natural justice or that the decision was irrational. The Judicial Review was not confined to the decision-making process but rather with the correctness of the decision on matters of both law and fact. So long as the proceedings of the Review Board were regular and it had jurisdiction to adjudicate upon the matters raised in the Request for Review, it was as much entitled to decide those matters wrongly as it was to decide them rightly.
The High Court erred in essence in treating the judicial review application as an appeal and in granting judicial review orders on the grounds which were outside the scope of Judicial Review jurisdiction.”
84. On the issue of costs, the 3rd IP cites the case of Supermarine Handling Services Ltd vs Kenya Revenue Authority, Civil Appeal No. 85 of 2006, the Court explained the circumstances that would lead an appellate court to interfere with the trial court’s exercise of discretion thus;
“Costs of any action or other matter or issue shall follow the event unless the court or Judge shall for good reason otherwise order. It is well established that when the decision of such a matter as the right of a successful litigant to recover his costs is left to the discretion of the Judge who tried his case, that discretion is a judicial discretion, and if it be so its exercise must be based on facts.
If, however, there be, in fact, some grounds to support the exercise by the trial Judge of the discretion he purports to exercise, the question of sufficiency of those grounds for this purpose is entirely a matter for the Judge himself to decide, and the Court of Appeal will not interfere with his discretion in that instance...Thus, where a trial court has exercised its discretion on costs, an appellate court should not interfere unless the discretion has been exercised unjudicially or on wrong principles.
Where it gives no reason for its decision the Appellate Court will interfere if it is satisfied that the order is wrong. It will also interfere where the reasons are given if it considers that those reasons do not constitute “good reason” within the meaning of the rule...”.
85. The 3rd IP thus prays that this court should dismiss the Applicant’s application as it is frivolous and lacks merit with costs being borne by the Applicant, the 1st and 2nd Interested Parties.
Analysis and determination:
86. Upon considering the application, affidavits respectively filed in support and opposition of the application, the rival submissions and authorities cited the issue that emerge for determination are as follows;
i. Whether the suit is res judicata
ii. Whether the Respondent acted illegally
iii. Whether the Respondent complied with the directions issued in HCJR E170/2024
iv. Composition of the Board
Issue 1- Whether the suit is res judicata;
87. The Respondent filed a Notice of Preliminary objection dated 15th day October, 2024 on the ground that the Judicial Review Application dated 7th October 2024 is res judicata and that the same offends the express provisions of Section 7 of the Civil Procedure Act Cap 21 Laws of Kenya as the issues raised have already been heard and determined by this court in HCJR/E170/2024, First Assurance Company Limited v Public Procurement Administrative Review Board and Moi Teaching and Referral Hospital and 2 Others.
88. In the case of Mukisa Biscuits Manufacturing Co. Ltd Vs West End Distributors Ltd [1969] E.A.696 Law J.A states a preliminary objection to be thus: -
“So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit”
Sir Charles Newbold, President stated in the same judgment as follows:
“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion”
89. The Respondent submitted that the objection is well taken because if it succeeds the court will be saved the cost of a lengthy hearing and attendant expenses on either side.
The Civil Procedure Act Cap 21, at Section 7 provides as follows;
“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”
Explanation. — (1) The expression “former suit” means a suit which has been decided before the suit in question whether or not it was instituted before it.
Explanation. — (2) For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court.
Explanation. — (3) The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
Explanation. — (4) Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation. — (5) Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused.
Explanation. — (6) Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.
90. The Supreme Court in a decision rendered on 6th August, 2021 in John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others [2021] eKLR comprehensively dealt with the different facets making up the doctrine of res judicata.
91. The Apex Court went ahead and rendered itself on the threshold for proving the applicability of the doctrine. The Court stated as follows:
“[86] Werestate the elements that must be proven before a court may arrive at the conclusion that a matter is res judicata. For res judicata to be invoked in a civil matter the following elements must be demonstrated:
(a) There is a former Judgment or order which was final;
(b) The Judgment or order was on merit;
(c) The Judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and
(d) There must be between the first and the second action identical parties, subject matter and cause of action.”
92. In order therefore to decide as to whether an issue in a subsequent Application is res judicata, a court of law should always look at the Decision claimed to have settled the issues in question and the entire Application and the instant Application to ascertain;
i. What issues were really determined in the previous Application;
ii. Whether they are the same in the subsequent Application and were covered by the Decision.
iii. Whether the parties are the same or are litigating under the same Title and that the previous Application was determined by a court of competent jurisdiction.
93. The subject issues pleaded in this suit are fundamentally different from what was determined in HCJR/E170/2024 in the following fronts as argued by the Applicant inter alia:
a) Whether the Respondent committed an illegality when it exceeded the jurisdiction provided by the court orders of 16thSeptember,2024 by hearing the matter outside the prescribed timelines; This is not an issue that was handled in HCJR/E170/2024.
b) Whether as a consequence of the contravention of the court orders of 16thSeptember,2024, the Respondent breached section 175(6) of the Public Procurement and Asset Disposal Act,2015 and therefore committed an illegality; This is not an issue that was handled in HCJR/E170/2024.
c) Whether the Respondent’s decision of 28th September,2024 directing the Accounting Officer of the Procuring Entity to re-admit the 3rd Interested Party’s tender to the Technical Evaluation Stage for re-evaluation within 21 days from the date hereof is ultra vires section 175(1) of the Public Procurement and Asset Disposal Act,2015; in HCJR/E170/2024, the court handled compliance period of 14 days and not 21 days as has been pleaded in this new matter.
d) Whether the Respondent acted irrationally and breached procedure to order re-admission of the 3rd Interested Party’s tender to the Technical Evaluation Stage alone for reevaluation instead of directing the whole process to start from inception especially the Preliminary/ Mandatory Evaluation where the 3rd Interested Party had failed.
e) Whether the decision to redirect the re-evaluation only at the Technical Evaluation Stage is biased, unfair and unlawful.
f) Whether it was unreasonable for the same
94. This court is in agreement with the Applicant. In any event, the causes of action in the two suits are distinct and very different. It is this court's finding and I do hold that the Respondents’ claim that this suit is Res Judicata is misplaced and the Notice of preliminary objection lacks merit and the same is dismissed.
95. In the judgment delivered on 16th September 2024 in Nairobi High Court Judicial Review Misc. Civil Application No. E170 of 2023 the court issued the following orders:
a) 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.
b) 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 29thJuly, 2024 for the purposes of being quashed is declined.
c) An Order of Prohibition to prohibit the 1st and 2ndInterested 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.
d) 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.
e) 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.
f) Each party shall bear its costs.
g) The Request for Review No. 58/2024 shall be readmitted for hearing and determined within 7 days of today’s date.
96. Towards complying with order g of the said judgment, on 28th September 2024, the Respondent made the following final orders with respect to Request for Review No. 58 of 2024:
a. The 1st, 2nd, and 3rd Respondents’ Notice of Preliminary Objections dated 26th September 2024 and filed on even date be and are hereby dismissed.
b. The 3rd Respondent’s Preliminary Objection dated 10th July 2024 and filed on 12th July 2024 and the Preliminary Objection contained in the 1st and 2nd Respondent Statement Against the Application for Request for Review sworn on 5thJuly 2024 by Evans Kipchumba Kiprotich and filed on even date be and is hereby dismissed.
c. The Notification of Intention to Award issued to the 3rd Respondent dated 14th June 2022 with respect to Tender No. MTRH/T/86/2023-2024 for Provision of Medical Insurance Cover, be and is hereby nullified and set aside.
d. The Notifications of Intention Award addressed to the unsuccessful tenderers including the Applicant dated 14th June 2024 with respect to Tender No. MTRH/T/86/2023-2024 for Provision of Medical Insurance Cover, be and are hereby nullified and set aside.
e. The 1st Respondent is hereby ordered to re-admit the Applicant’s tender to the Technical Evaluation stage for re-evaluation and make good the anomalies that the Board has pointed out herein in the procurement process of the subject tender in accordance with the provisions of the Tender Document, Regulations 2020, the Act and Article 227 of the Constitution within 21 days from the date hereof while taking into consideration the Board’s findings in this Request for Review.
f. Further to Order No. D above, the 1st and 2ndRespondents are hereby directed to proceed with the procurement process to its logical conclusion.
g. Given that the procurement process for the subject tender is not complete, each party shall bear its own costs in the Request for Review.
This has precipitated the instant suit.
2nd issue – Whether the Respondent acted illegally;
97. Section 175 of PPAD Act stipulates that (1) A person aggrieved by a decision made by the Review Board may seek judicial review by the High Court within fourteen days from the date of the Review Board's decision, failure to which the decision of the Review Board shall be final and binding to both parties.
98. From the impugned decision, it is noted that the Respondent directed the Accounting Officer of the Procuring Entity to re-admit the Applicant’s tender to the Technical Evaluation stage for re-evaluation and to make good the anomalies that the Board had pointed out herein in the procurement process of the subject tender in accordance with the provisions of the Tender Document, Regulations 2020, the Act and Article 227 of the Constitution within 21 days from the date hereof while taking into consideration the Board’s findings in this Request for Review.
99. The meaning and consequence of this directive is that the Procuring Entity was required to comply within timelines that would in effect run concurrently and within the period in which an application for Judicial Review should be filed under section 175(1) of the of the Public Procurement and Asset Disposal Act,2015.
100. The Respondent’s directive failed to take into consideration the automatic 14-day statutory stay or standstill period. It interfered with the said critical access to justice 14 days window rendering the whole proceedings irredeemably incompetent. This is an illegality that vitiates the entire procurement process.
101. The board has no power to issue compliance timelines that offend or contradict Section 175 of the PPAD Act and the same amounts to an illegal directive which is contra Article 227 of the Constitution.
102. The directive took away the 14 days right of an aggrieved party to lodge an appeal or lodge a judicial review application.
103. The applicant had a legitimate expectation that it would harness the right as guaranteed under Section 175 of PPAD Act.
104. The order of 21 days amounted to a fatal error of law on the part of the Respondent in the process of making the decision the subject of the complaint. The Respondent acted without Jurisdiction or ultra vires, or contrary to the provisions of a law and in particular Section 175 of the PPAD Act. This offends the rule of law as provide for under Article 10 and 47 of Constitution. This accord with the principles as enunciated in Article 227 of the constitution.
105. A procurement process that is informed by decisions that are contrary to express provisions of the law offend Article 47 of The Constitution.
106. In the case of Pastoli vs Kabale District Local Government Council & Others [2008] 2 EA 300 at pages 303 to 304 thus:
“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: See Council of Civil Service Union v Minister for the Civil Service [1985] AC 2; and also, Francis Bahikirwe Muntu and others v Kyambogo University, High Court, Kampala, miscellaneous application number 643 of 2005 (UR).
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: Re an Application by Bukoba Gymkhana Club [1963] EA 478 at page 479 paragraph “E”.
Procedural impropriety is when there is failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision. (Al-Mehdawi v Secretary of State for the Home Department [1990] AC 876).”
107. The applicant has proven the respondent acted illegally.
Third issue - Whether the Respondent complied with the directions issued in HCJR E170/2024;
108. Section 57 of the Interpretation and General Provisions Act, Chapter 2 of the Laws of Kenya in computing time within which the 7 days ordered for rehearing would lapse from the date of delivery of the High Court’s Judgment on 16th September 2024 while noting the stay orders issued on 19th September 2024 vacated on 23rdSeptember 2024 and notification of the said withdrawal on the 24th September 2024 and it found that it had the 16th, 17th, 18th, 25th, 26th, 27th and 28th September 2024 to rehear the matter and as such, it was within the 7 days’ timelines ordered by the High Court and thus was seized of jurisdiction to rehear the instant Request for Review.
109. I am satisfied that the Respondent complied with order (g)of the judgment of the High Court in JR 170/24 to wit that “The Request for Review No. 58/2024 shall be readmitted for hearing and determined within 7 days of today’s date.”
Fourth issue: The Composition of the Board;
110. According to the applicant, it was unreasonable and illogical for the Respondent to re-admit and re-hear the matter before the same Panel of Board members that heard the first Request for Review.
111. The Applicant argued that it’s impractical nay impossible that the Respondent would have come out with a different reasoning and decision from the findings of its first decision. According to the Applicant it was irrational for the same panel of Board to rehear the Request for Review and expect to come out with a different outcome, yet they had already openly expressed their bias.
112. The Respondent Board in rehearing the Request for Review constituted the Panel Chairperson Mr. Joshua Kiptoo, Member Dr. Susan Mambo and Ms. Alice Oeri, Member and Board Vice Chair. This is the same Board panel that heard and determined the first Request for Review that was quashed by the High Court.
113. This court finds no fault in their hearing of the review by the same board. In any event, the applicant has not demonstrated nor proven how this amounts to procedural impropriety. This court cannot delve into the way the board exercised its discretion. There is no bar for the re hearing of a review by the same board. It is this court’s finding that though it would be desirable to set up a new board, there is no illegality in the same board rehearing the review and I so hold.
114. Having found that the applicant is entitled to the order of certiorari, the court is under a duty to decide whether or not to issue 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.
115. The Court of Appeal in the case of Kenya Pipeline Company Limited case V Hyosung Ebara Company Limited & 2 Others [2012] EKLR pronounced itself as follows:
“The Review Board is a specialized statutory tribunal established to deal with all complaints of breach of duty by the procuring entity. By Reg. 89, it has power to engage an expert to assist in the proceedings in which it feels that it lacks the necessary experience. S. 98 of the Act confers very wide powers on the Review Board. It is clear from the nature of powers given to the Review Board including annulling, anything done by the procurement entity and substituting its decision for that of the procuring entity that the administrative review envisaged by the Act is indeed an appeal. From its nature the Review Board is obviously better equipped than the High Court to handle disputes relating to breach of duty by procurement entity. It follows that its decision in matters within its jurisdiction should not be lightly interfered with.
Having regard to the wide powers of the Review Board we are satisfied That the High Court erred in holding That the Review Board was not competent to decide whether or not the 1st Respondent’s tender had met the mandatory conditions. The issue whether or not the 1st Respondent’s tender was rightly rejected as unresponsive was directly before the Review Board and the Board had jurisdiction to deal with it.
In conclusion, it is manifest that the application for Judicial Review was not well founded. The 1st Respondent did not establish that the Review Board had acted without jurisdiction or in excess of jurisdiction or in breach of rules of natural justice or that the decision was irrational. The Judicial Review was not confined to the decision making process but rather with the correctness of the decision on matters of both law and fact. So long as the proceedings of the Review Board were regular and it had jurisdiction to adjudicate upon the matters raised in the Request for Review, it was as much entitled to decide those matters wrongly as it was to decide them rightly.
The High Court erred in essence in treating the judicial review application as an appeal and in granting judicial review orders on the grounds which were outside the scope of Judicial Review jurisdiction.”
116. I am in agreement that from its nature the Review Board is better equipped than the High Court to handle disputes relating to breach of duty by procurement entity. It is my finding that the appropriate order to issue is a rehearing of the review.
Disposition:
117. The Exparte Applicant has made out a case for judicial review orders.
Orders:
1) A 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 28th September,2024 for purposes of being quashed is hereby issued.
2) The review shall be heard and determined by a panel other than the one that reheated the review within 7 days of today’s date.