REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
JUDICIAL REVIEW DIVISION
JUDICIAL REVIEW APPLICATION NO. E378 OF 2025[PPARB)
REPUBLIC …………………………………………………………APPLICANT
VERSUS
PUBLIC PROCUREMENT ADMINISTRATIVE
REVIEW BOARD………………………………………………..RESPONDENTKENYA AIRPORTS AUTHORITY ........................1 ST INTERESTED PARTYSAJUCY COMPANY LIMITED ............................2 ND INTERESTED PARTY
AND
FRESQUARE INVESTMENTS LIMITED…………EX PARTE APPLICANT
JUDGMENT
Introduction
1. The Exparte Applicant FRESQUARE INVESTMENTS LIMITED (hereinafter, the applicant), by its notice of motion dated 26th November 2025 seeks judicial review orders of certiorari, prohibition and mandamus challenging a decision of the Public Procurement Administrative Review Board (the “Board”) which upheld the rejection of the Applicant’s tender as non-responsive.
2. The rejection was premised on the Applicant’s failure to disclose the name of the auditor in the audited financial statements, contrary to the tender documents, which expressly required compliance with ICPAK By-Law No. 38 and the International Financial Reporting Standards, IFRS.
3. The Applicant contends that the decision by the Review Board violated Articles 10, 47 and 227 of the Constitution, the Fair Administrative Action Act, 2015, the Public Procurement and Asset Disposal Act, 2015 (PPADA), and the PPAD Regulations, 2020.
4. the Respondent and interested parties oppose the application contending that the decision of the Review Board was made lawfully, rationally and in procedurally fair manner, and that the applicant was a non-responsive bidder hence, its bids could not be corrected to give it an undue advantage over the other bidders who had complied with the mandatory requirements of the tender documents.
The applicant’s case
5. Before this Court for determination is the Notice of Motion dated 26th November 2025 and filed on 28th November 2025, supported by the affidavit sworn by Mary Mwiu Kivata and a statutory statement dated 21st November 2025. The applicant seeks the following orders:
1. THAT this Honourable court be pleased and do hereby grant the judicial review order of CERTIORARI to remove into this Honourable Court and quash in its entirety the decision of the Public Procurement Administrative Review Board in Application No. 100 of 2025 dated 18 th November 2025, which dismissed the Applicant’s request for review and upheld the disqualification of the Applicant’s bid in Tender No. KAA/OT/Kabunde/0183/2024-2025.
2. THAT this Honourable court be pleased and do hereby grant the judicial review order of PROHIBITION to remove into this Honourable Court and prohibit the 1 st Interested Party (Kenya Airports Authority), its agents or servants, from implementing or acting upon the said decision of the Review Board or proceeding to conclude the procurement in Tender No. KAA/OT/Kabunde/0183/2024-2025 on the basis of the unlawful decision. In particular, the 1 st Interested Party should be prohibited from awarding or signing any contract with the 2 nd Interested Party (Sajucy Company Limited) or any other entity pursuant to the said tender, until the procurement process is lawfully re-evaluated.
3. THAT this Honourable court be pleased and do hereby grant the judicial review order of MANDAMUS to remove into this Honourable Court to compel the 1 st Interested Party (Kenya Airports Authority) to reinstate and re-evaluate the Applicant’s bid in Tender No. KAA/OT/KABUNDE/0183/2024-2025 at the technical evaluation stage, and to conduct the procurement process to its lawful conclusion in compliance with the Constitution and the Public Procurement and Asset Disposal Act.
4. THAT costs of and incidental to the application be provided for.
5. THAT such further and other reliefs that this Honourable Court may deem just and expedient to grant.
1. The applicant asserts that it participated in Tender No. KAA/OT/Kabunde/0183/2024-2025 advertised by the 1 st Interested Party, Kenya Airports Authority, for the proposed construction of the Kabunde Passenger Terminal Building and that pursuant to the Invitation to Tender and in strict adherence to the instructions contained therein, it submitted its bid for consideration within the timelines prescribed.
2. That the Applicant participated in the said tender, obtained the Tender Document, prepared its bid and submitted an online tender by the extended submission deadline of 26 th June 2025 (initially 22 nd May 2025, but extended via addenda) and that upon tender opening, its bid was recorded as one of twelve (12) tenders received.
3. According to the Applicant, the Tender Document required bidders to submit various mandatory and technical documents, including audited financial statements for any 3 of the last 5 years (2021–2024) prepared in accordance with International Financial Reporting Standards (IFRS) and accompanied by audit opinions issued per ICPAK By-Law No. 38. The Applicant is said to have understood this requirement and provided in its bid five consecutive years of audited financial statements (for 2020, 2021, 2022, 2023, and 2024), which was above and beyond the minimum three years required.
4. The applicant avers that each set of financial statements was prepared in compliance with the IFRS for SMEs standard, which according to the Applicant, is an internationally recognized framework for financial reporting suitable for entities of the Applicant’s size and nature and adopted by the Institute of Certified Public Accountants of Kenya (ICPAK) since 2010.
5. The Applicant states that each audited report included the requisite statements that included balance sheet, profit and loss, cash flows, notes and was signed by the external auditor, AMG Kenya-Certified Public Accountants, through its engagement partner CPA George Munga Amolo, who is said to hold a valid practicing certificate No. P/2067. That immediately below each signature in the audit opinion, the auditor’s Practicing Certificate Number (P/2067) was clearly indicated as the identifier of the signing CPA.
6. It is the Applicant’s further case that it was disqualified vide a letter dated 14 th October, 2025 at the Technical Evaluation Stage and according to the applicant, the disqualification was based on the allegation that its audited financial statements for the financial years 2020–2024 did not meet International Financial Reporting Standards and that the audit opinions issued did not comply with By-Law No. 38 of the ICPAK Regulation, as the auditors name was missing.
7. That the disqualification letter also notified that the lowest evaluated bidder and successful tenderer was M/s Sajucy Company Limited at a price of KES 194,876,660.62 inclusive of taxes. The Applicant states that it was the first time it learned of the procuring entity’s view that there was an issue with its financial statements’ compliance.
8. The Applicant contends that its disqualification was misconceived and unfair, as its financial statements complied with IFRS for SMEs and the auditor was properly identified through a signed opinion bearing a valid practising number, with the auditor’s name supplied elsewhere in the bid. Further, that the tender did not prohibit the use of IFRS for SMEs, that its five years of audited accounts complied with acceptable IFRS standards in Kenya and that disqualification on this basis imposed undisclosed and unlawful evaluation criteria contrary to sections 79(2)(b) and 80(2) of the PPADA.
9. Aggrieved by its disqualification on what it viewed as a minor technical formality, the Applicant lodged a Request for Review No. 100 of 2025, arguing that it was substantively compliant and that the procuring entity introduced requirements not stated in the tender.
10. The Respondent Public Procurement Administrative Review Board is stated to have heard the matter and in its decision of 18 th November 2025, it dismissed the request, upholding the disqualification on the ground that the Applicant failed to indicate the auditor’s name on the audit opinions contrary to ICPAK By-Law 38, a mandatory requirement. The Review Board directed the procuring entity to proceed with the procurement.
11. The Applicant was aggrieved by the decision of the Review Board, asserting that the decision is unlawful, unreasonable and unjust, that it has been excluded from a competitive tender worth approximately Kshs.194 million, and that quashing the decision and ordering a lawful re-evaluation would better serve fairness, the rule of law and public interest.
12. It is also the Applicant’s case that the Respondent committed errors of law and acted illegally and unreasonably by disqualifying the applicant’s bid despite full substantive compliance with the tender requirements.
13. The Applicant reiterates that it substantially complied with ICPAK By-Law 38, as the audit opinions were signed by a duly licensed auditor whose unique practising certificate number was clearly indicated, sufficiently identifying the auditor and any omission of a typed name was, at most, a minor and non-material deviation that caused no prejudice, which the Respondent irrationally elevated into a ground for disqualification, contrary to law and the principle of proportionality.
14. The Applicant maintains that the decision is ultra vires, unreasonable, and in breach of Article 47 of the Constitution and the Fair Administrative Action Act, warranting the Court’s intervention.
The Respondent’s Replying Affidavit
15. Opposing the application, the Respondent filed a replying affidavit sworn on 10 th December 2025, by Philemon Kiprop who introduces himself as the Secretary of the Respondent-Public Procurement Administrative Review Board.
16. Mr. Kiprop depones in contention that the Ex-parte Applicant’s challenge of the Respondent’s Decision dated 18 th November 2025 rendered in PPARB Application No. 100 of 2025 is an appeal against the Respondent’s Decision and is being disguised as a judicial review application. To this extent, he calls on this Court to decline to allow the prayers sought in these judicial review proceedings for want of jurisdiction to hear and determine an appeal against the Respondent’s Decision.
17. The respondent cited the Court of Appeal decision in Kenya Pipeline Company Limited v Hyosung Ebara Company Limited & 2 Others [2012] KECA 104 (KLR) where the Court is said to have held that the Respondent is a specialized statutory tribunal established to deal with all complaints of breach of duty by a procuring entity and it is conferred with wide powers which include, giving directions to the accounting officer of a procuring entity with respect to anything to be done or redone in the procurement or disposal proceedings and as such, the administrative review envisaged under the Act is indeed an appeal that from the Respondent’s nature, it follows that its decisions in matters within its jurisdiction should not be lightly interfered with.
18. It is the Respondent’s defence and contention that in reaching its decision, it considered each of the parties’ cases, documents, pleadings, oral and written submissions, list and bundle of authorities together with confidential documents submitted to it pursuant to Section 67(3)(e) of the Public Procurement and Asset Disposal Act Act.
19. The Respondent states that the Review Board framed 4 issues for determination: whether the 2 nd Interested Party’s Notice of Preliminary Objection was properly before it; whether the Applicant had the requisite locus standi to approach the Board by dint of Section 167(1) of the Act on the question of pleading loss and damage; whether the Procuring Entity breached Section 80(2) of the Act in disqualifying the Applicant at the Technical Evaluation stage; and the appropriate orders to grant.
20. That on the preliminary objection, the Board is said to have at paragraphs 62–77 of its Decision considered Regulation 206 as read with Regulation 209(1) of the Public Procurement and Asset Disposal Regulations, 2020 and relevant superior court pronouncements on the matter and held that objections on points of law should be raised at the earliest opportunity. It therefore admitted the 2 nd Interested Party’s Notice of Preliminary Objection dated 6 th November 2025 and filed on 7 th November 2025 as being properly before it.
21. On locus standi which is said to have been addressed at paragraphs 88–110 of its decision, the Review Board is said to have found that the Applicant’s claim of being aggrieved, prejudiced, disenfranchised and discriminated against disclosed a grievance arising from an alleged breach of duty under the Act and that this conferred locus standi under Section 167(1) of the Act. That in summation, the Review Board held that it had jurisdiction to hear and determine the Request for Review No. 100 of 2025 on its merits.
22. On the substantive issue under Section 80(2) of the Act, the Review Board is said to have considered the Applicant’s argument that its disqualification amounted to the application of extraneous criteria and an immaterial technicality, and took note of the procurement principles stipulated under Article 227 of the Constitution and Section 3 of the Public Procurement Act. It is asserted that the Respondent herein also took into account Sections 58, 60(1), and 70 of the Public Procurement and Asset Disposal Act on the requirement for an accounting officer of a procuring entity to use a standard tender document in all procurement and asset disposal proceedings containing sufficient information and specific requirements, Sections 80(1) and (2) on evaluation using stated criteria, Section 79(1) on responsiveness and settled law on mandatory requirements.
23. That upon reviewing the notification letter dated 14 th October 2025 against Technical Requirement 11 of Part B – Technical Evaluation of Section III – Evaluation and Qualification Criteria, the Review Board found that bidders were mandatorily required to submit audited financial statements incorporating balance sheets (statements of financial position), profit and loss statements (statements of comprehensive income) and cash flow statements for specified years, prepared in accordance with International Financial Reporting Standards, incorporating audit opinions issued in accordance with ICPAK By-Law No. 38, and duly filled Forms 3.1 and 3.2.
24. The Board is said to have noted from the Evaluation Report that the Applicant was among seven bidders disqualified at the Technical Evaluation stage because the auditor’s name did not appear on the independent audit opinion.
25. That upon perusing the Applicant’s tender document under Section 67(3)(e), the Review Board detailed the documents submitted, including Forms 3.1 (pages 70–72), the auditor’s Annual Practicing License (page 74), the firm’s practicing license (page 75), and audited financial statements for 2020–2024 (pages 76–138). It is urged that these incorporated the Report of the Independent Auditor issued at pages 79-80 for year 2020, 92-93 for year 2021, 105-106 for year 2022, 118-119 for year 2023, and 131-132 for year 2024.
26. The Review Board is said to have at paragraphs 135–136 of its Decision, found that although the audit opinions were signed, stamped, and dated under the firm of AMG-Kenya with practicing number P/2067 appended, the name appearing below the signature was that of the firm and not the auditor personally, leading to disqualification.
27. Relying on ICPAK Guidelines on Signing Assurance Engagements under By-Law No. 38, the review Board, it is deposed, held that an auditor must sign in their own name or, if signing in the firm’s name, must indicate the auditor’s personal name prominently below the signature. The Review Board depones that it concluded that the Applicant’s audit opinions did not comply with ICPAK By-Law No. 38 because the auditor’s name did not appear and that annexing the auditor’s Annual Practicing License at page 74 could not cure this non-compliance.
28. The Review Board contends that it contrasted this with the 2 nd Interested Party’s bid, noting that the latter’s Audited Financial Statements found at pages 676–748 of its bid for the years 2024, 2023, and 2022 clearly identified the engagement partner, CPA Kabuya Julius Kingori P/1435, whose Annual Practicing License was also submitted at page 677, thereby complying with Technical Requirement 11 and promoting competitiveness under Article 227(1) of the Constitution.
29. It is the 1 st Respondent’s case that it noted the reference made by the Applicant to Section 79(2)(b) of the Act with regard to the effect of omission of the auditor’s typed name in the submitted independent audit opinions and argument that provision of the auditor’s membership number therein could be viewed as a minor deviation that does not materially depart from the tender requirement and is a harmless oversight that can be overlooked in the interest of substantive compliance and that while relying on the holding in Miscellaneous Civil Application 85 of 2018 Republic v Public Procurement Administrative Review Board Ex parte Meru University of Science & Technology; M/S Aaki Consultants Architects and Urban Designers (Interested Party) [2019] eKLR , it held that neither the Review Board nor a procuring entity can waive a mandatory requirement or term it as a “minor deviation” since a mandatory requirement is instrumental in determining the responsiveness of a tender and is a first hurdle that a tender must overcome in order to be considered for further evaluation.
30. The Review Board is said to have found that the Evaluation Committee correctly applied Section 80(2) of the Act, the Constitution and the Tender Document in disqualifying the Applicant at the Technical Evaluation stage.
31. The Respondent maintains that the Review Board’s Decision of 18 th November 2025 in the Request for Review No. 100 of 2025 was lawful, reasonable, procedurally fair, rational, and within its mandate, having taken into account Article 227 of the Constitution, the Act, the Regulations 2020 and the Fair Administrative Action Act.
32. It asserts that no illegality, error of law, irrationality, procedural unfairness, ultra vires conduct or abuse of power has been demonstrated, and prays that the Notice of Motion be dismissed with costs, or alternatively, that if the Decision is set aside, costs be disallowed pursuant to Section 175(7) of the Act.
The 1 st Interested Party’s response
33. The 1 st Interested Party which is also the procuring Entity, Kenya Airports Authority filed grounds of opposition dated 5 th November 2025. The 1 st Interested Party contends that the application is misconceived and incapable of being granted as the Applicant has not met the threshold for the issuance of judicial review orders. It further contends that the Applicant was granted a fair hearing by the Respondent in exercise of its powers under Section 173 of the Public Procurement and Assets Disposal Act.
34. According to the 1 st Interested Party, the Applicant is undeserving of the reliefs sought having failed to demonstrate how the Respondent acted irrationally, illegally, or ultra vires to the Public Procurement and Assets Disposal Act.
35. It is the 1 st Interested Party’s case that the instant Application is grossly incompetent, a classic case of abuse of court process designed and prosecuted solely to delay and to frustrate the Procuring Entity’s operations.
The 2 nd Interested Party’s response
36. The 2 nd Interested Party Sajucy Company Limited filed a replying affidavit sworn on 1 st December 2025 by Julius Asuma Kibagendi, who introduces himself as the Managing Director of the 2 nd Interested Party.
37. In the said affidavit, Mr. Kibagendi deposes that the Ex-Parte Applicant was correctly disqualified at the technical evaluation stage and was subsequently issued with the Letter of Regret dated 14 th October 2025 for failure to meet the Mandatory Requirement under Item 11 under Section III –Evaluation and Qualification Criteria Item 11. Further, that it was mandatory that the submitted financial statement was to be prepared in accordance with the International Financial Reporting Standards (IFRS) and incorporating audit opinions issued in accordance with ICPAK By-Law No. 38.
38. The deponent contends that on perusal of the Ex-Parte Applicant’s Supporting Affidavit’s annexures, wherein they have attached their submitted financial statements, it is evident that they did not bear the name of the individual auditor who prepared them, which is contrary to the above-mentioned Mandatory requirement. He states that the Applicant’s documents only display the firm name, firm stamp signature and practicing certificate number, without identifying the particular auditor, thereby correctly making their submitted bid to be non-responsive and non-compliant with Section 79(1) of the Public Procurement and Asset Disposal Act (PPADA), 2015.
39. Further deposition is that, during the hearing of the Request for Review in PPARB No. 100 of 2025, the Ex Parte Applicant confirmed that they had not fully complied with the above-mentioned mandatory requirement. It is also the 2 nd Interested Party’s case that the Board in its detailed decision, correctly applied the law under Section 79(1) and 80(2) of the PPADA, 2015 and rightfully found the Applicant’s bid non-responsive for not meeting the Mandatory requirements of the Tender thereby affirming the Procuring Entity’s letter of 14 th October 2025 to it.
40. The 2 nd Interested Party contends that the said Tender was evaluated in strict compliance of the Constitution of Kenya, the Public Procurement and Asset Disposal Act 2015 (PPADA 2015), the Public Procurement Regulations 2020 and Evaluation criteria set out in the Tender document more specifically at Clause 35 of the Instructions to Tenderers (ITT) (page 21) read together with the Tender Data Sheet (pages 25-30) and Section III Evaluation and Qualification Criteria (pages 29-62).
41. It is stated that the Applicant’s judicial review application is misconceived, frivolous and an abuse of court process and as such that it should be dismissed with costs.
42. The application was canvassed by way of written submissions.
The Applicant’s submissions
43. The Applicant filed written submissions dated 9 th December 2025. It argues that its bid was substantially and materially conforming, compliant and responsive to the tender requirements advertised by the 1 st Interested Party herein, and that on the strength of the fact that the bid was materially and substantially compliant, the same ought to have been considered notwithstanding any of the alleged immaterial and or minor defects.
44. To support this position the Applicant relies on the case of Republic v Public Procurement Administrative Review Board; Arid Contractors & General Supplies (Interested Party) Ex parte Meru University of Science & Technology [2019] KEHC 1935 (KLR) where the court is said to have observed that a conforming or responsive tender is one that meets all material or substantial requirements of the tender invitation and that procuring entities may evaluate tenders even when they include minor discrepancies that do not significantly change the essential terms, conditions or requirements of the tender documents, or contain errors or omissions that can be corrected without affecting the core substance of the tender.
45. The Applicant submits that the key operative words in so far as compliance is concerned are “material” and “substantial”, and that as such, a tender bid need not to be perfect as substantial compliance suffices and this is said to be in line with the finding of the court in Norland Construction (Pty) Ltd v Chris Hani Development Agency (SOC) Limited and Another (18/2022) [2024] ZAECMKHC 10 (23 January 2024) .
46. Further, that the Applicant’s bid was substantially responsive and compliant with the advertised tender requirements and that this has never been contested. It is also submitted that the bid passed the preliminary evaluation stage where it was declared responsive after meeting all the mandatory requirements of the advertised tender, and as such, the 1 st Interested Party ought to have evaluated the bid on its merits, namely, competence, qualifications, experience and its proposed plan on executing the proposed tender.
47. It is the Applicant’s further submission that as was held by the courts in the cases of Bytewise Limited v Accounting Officer, Kenya Civil Aviation Authority; Indra Limited (Interested Party) [2020] KEPPARB 35 (KLR) , Republic v Public Procurement Administrative Review Board; Kenya Medical Supplies Authority (KEMSA) (Interested Party) Ex parte Emcure Pharmaceuticals Limited [2019] KEHC 2976 (KLR) and Republic v Public Procurement Administrative Review Board & 2 others; Ex-Parte Central Kenya Fresh Merchants Limited [2018] KEHC 1203 (KLR), a minor defect or error is one that is inconsequential and does not affect the substance of the tender if corrected or waived.
48. The Applicant also submits that the omission of the auditor’s name in the Applicant’s financial statements was a minor defect within the meaning of Section 79(2) of the Public Procurement and Disposal Act and that this defect is inconsequential and does not affect the substance of the tender when corrected or waived. That the Applicant was more than willing to correct the defect had it been invited and or given the opportunity to do so by the Respondent. Also, that the the defect was not prejudicial to the other bidders and was also immaterial because it did not have any iota as to price, quantity, quality or delivery of the proposed tender.
49. It is submitted that the true intention and purpose behind by- law 38 was to ensure that financial reports and or statements are prepared by identifiable and authorized professional auditors, not quacks, and as such, the financial statements submitted by the Applicant proves that they were done and prepared by an identifiable and authorized professional whose unique professional identifier, the practise number, is provided in the statements. Similarly, that the said auditor is working in a recognized, regulated and reputable firm of auditors AMG Kenya Limited which is domiciled in Kenya and can be traced for purposes of identifying the concerned auditor.
50. The Applicant contends that its disqualification based on the omission of the name whose importance to the tendering process has not been explained by the Respondent is not only unreasonable but also without basis. The Applicant relies on the case of Norland Construction (Pty) Ltd v Chris Hani Development Agency (SOC) Limited and Another (18/2022) [2024] ZAECMKHC 10 (23 January 2024) where the court is said to have held that the bidder’s letter of good standing that had not been certified by a commissioner of oaths constituted an immaterial defect, and that given the procuring entity had not explained the importance of certification to the tendering process, it was unreasonable and unfair to disqualify a bidder on such immaterial error.
51. The Applicant also relies on the case of Minister of Social Development and Others v Phoenix Cash & Carry Pmb CC (189/06, 244/06) [2007] ZASCA 26; [2007] 3 All SA 115 (SCA); 2007 (9) BCLR 982 (SCA) (27 March 2007) where the court is said to have held that the prescripts and consequences of formalities must be clear if they are meant to be a mandatory requirement.
52. It is submitted that the mandatory nature and importance of the auditor’s name was not only unexplained in express and clear terms by the 1 st Interested Party when it advertised the tender but also that it was not demonstrated how the correction or waiver of the omission on the auditor’s name would prejudice the other bidders or affect the substance of the tender.
53. The Applicant further relies on the case of Republic v Public Procurement Administrative Review Board Ex parte Meru University of Science Technology MS Aaki Consultants Architects and Urban Designers (Interested Party) 2019 KEHC 9313(KLR) where the court is said to have held that a true procuring entity may condone some deficiencies.
54. The Applicant submits that the courts as was held in the case of Republic v Public Procurement Administrative Review Board Ex parte Meru University of Science Technology MS Aaki Consultants Architects and Urban Designers (supra) have held that it is mandatory for a procuring entity to strictly stick to the evaluation criteria set out in the tender documents as envisaged under Section 80(2) of the Public Procurement and Disposal Act.
55. The Applicant also relies on the case of Millennium Waste Management (Pty) Ltd. v Chairperson of the Tender Board: Limpopo Province and Others (31/2007) [2007] ZASCA 165; [2007] SCA 165 (RSA); [2008] 2 All SA 145; 2008 (2) SA 481; 2008 (5) BCLR 508; 2008 (2) SA 481 (SCA) (29 November 2007) where the court is said to have observed that the failure of the maker not signing but including his name and identification was an inadvertent mistake and that what was important was the nature of the information provided not the omitted signature.
56. According to the Applicant, the omission of the auditor’s name was an inadvertent mistake and that the fact that the auditor provided his practise number and further signed the documents proves that he was complying with by law 38 by providing his identification detail as an authorized professional. Moreover, that what is important is the information contained in the financial statements speaking to the Ex parte Applicant’s financial position as opposed to the auditor’ name.
57. It is further submitted that the objective an
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IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
JUDICIAL REVIEW DIVISION
JUDICIAL REVIEW APPLICATION NO. E378 OF 2025[PPARB)
REPUBLIC …………………………………………………………APPLICANT
VERSUS
PUBLIC PROCUREMENT ADMINISTRATIVE
REVIEW BOARD………………………………………………..RESPONDENTKENYA AIRPORTS AUTHORITY ........................1 ST INTERESTED PARTYSAJUCY COMPANY LIMITED ............................2 ND INTERESTED PARTY
AND
FRESQUARE INVESTMENTS LIMITED…………EX PARTE APPLICANT
JUDGMENT
Introduction
1. The Exparte Applicant FRESQUARE INVESTMENTS LIMITED (hereinafter, the applicant), by its notice of motion dated 26th November 2025 seeks judicial review orders of certiorari, prohibition and mandamus challenging a decision of the Public Procurement Administrative Review Board (the “Board”) which upheld the rejection of the Applicant’s tender as non-responsive.
2. The rejection was premised on the Applicant’s failure to disclose the name of the auditor in the audited financial statements, contrary to the tender documents, which expressly required compliance with ICPAK By-Law No. 38 and the International Financial Reporting Standards, IFRS.
3. The Applicant contends that the decision by the Review Board violated Articles 10, 47 and 227 of the Constitution, the Fair Administrative Action Act, 2015, the Public Procurement and Asset Disposal Act, 2015 (PPADA), and the PPAD Regulations, 2020.
4. the Respondent and interested parties oppose the application contending that the decision of the Review Board was made lawfully, rationally and in procedurally fair manner, and that the applicant was a non-responsive bidder hence, its bids could not be corrected to give it an undue advantage over the other bidders who had complied with the mandatory requirements of the tender documents.
The applicant’s case
5. Before this Court for determination is the Notice of Motion dated 26th November 2025 and filed on 28th November 2025, supported by the affidavit sworn by Mary Mwiu Kivata and a statutory statement dated 21st November 2025. The applicant seeks the following orders:
1. THAT this Honourable court be pleased and do hereby grant the judicial review order of CERTIORARI to remove into this Honourable Court and quash in its entirety the decision of the Public Procurement Administrative Review Board in Application No. 100 of 2025 dated 18 th November 2025, which dismissed the Applicant’s request for review and upheld the disqualification of the Applicant’s bid in Tender No. KAA/OT/Kabunde/0183/2024-2025.
2. THAT this Honourable court be pleased and do hereby grant the judicial review order of PROHIBITION to remove into this Honourable Court and prohibit the 1 st Interested Party (Kenya Airports Authority), its agents or servants, from implementing or acting upon the said decision of the Review Board or proceeding to conclude the procurement in Tender No. KAA/OT/Kabunde/0183/2024-2025 on the basis of the unlawful decision. In particular, the 1 st Interested Party should be prohibited from awarding or signing any contract with the 2 nd Interested Party (Sajucy Company Limited) or any other entity pursuant to the said tender, until the procurement process is lawfully re-evaluated.
3. THAT this Honourable court be pleased and do hereby grant the judicial review order of MANDAMUS to remove into this Honourable Court to compel the 1 st Interested Party (Kenya Airports Authority) to reinstate and re-evaluate the Applicant’s bid in Tender No. KAA/OT/KABUNDE/0183/2024-2025 at the technical evaluation stage, and to conduct the procurement process to its lawful conclusion in compliance with the Constitution and the Public Procurement and Asset Disposal Act.
4. THAT costs of and incidental to the application be provided for.
5. THAT such further and other reliefs that this Honourable Court may deem just and expedient to grant.
1. The applicant asserts that it participated in Tender No. KAA/OT/Kabunde/0183/2024-2025 advertised by the 1 st Interested Party, Kenya Airports Authority, for the proposed construction of the Kabunde Passenger Terminal Building and that pursuant to the Invitation to Tender and in strict adherence to the instructions contained therein, it submitted its bid for consideration within the timelines prescribed.
2. That the Applicant participated in the said tender, obtained the Tender Document, prepared its bid and submitted an online tender by the extended submission deadline of 26 th June 2025 (initially 22 nd May 2025, but extended via addenda) and that upon tender opening, its bid was recorded as one of twelve (12) tenders received.
3. According to the Applicant, the Tender Document required bidders to submit various mandatory and technical documents, including audited financial statements for any 3 of the last 5 years (2021–2024) prepared in accordance with International Financial Reporting Standards (IFRS) and accompanied by audit opinions issued per ICPAK By-Law No. 38. The Applicant is said to have understood this requirement and provided in its bid five consecutive years of audited financial statements (for 2020, 2021, 2022, 2023, and 2024), which was above and beyond the minimum three years required.
4. The applicant avers that each set of financial statements was prepared in compliance with the IFRS for SMEs standard, which according to the Applicant, is an internationally recognized framework for financial reporting suitable for entities of the Applicant’s size and nature and adopted by the Institute of Certified Public Accountants of Kenya (ICPAK) since 2010.
5. The Applicant states that each audited report included the requisite statements that included balance sheet, profit and loss, cash flows, notes and was signed by the external auditor, AMG Kenya-Certified Public Accountants, through its engagement partner CPA George Munga Amolo, who is said to hold a valid practicing certificate No. P/2067. That immediately below each signature in the audit opinion, the auditor’s Practicing Certificate Number (P/2067) was clearly indicated as the identifier of the signing CPA.
6. It is the Applicant’s further case that it was disqualified vide a letter dated 14 th October, 2025 at the Technical Evaluation Stage and according to the applicant, the disqualification was based on the allegation that its audited financial statements for the financial years 2020–2024 did not meet International Financial Reporting Standards and that the audit opinions issued did not comply with By-Law No. 38 of the ICPAK Regulation, as the auditors name was missing.
7. That the disqualification letter also notified that the lowest evaluated bidder and successful tenderer was M/s Sajucy Company Limited at a price of KES 194,876,660.62 inclusive of taxes. The Applicant states that it was the first time it learned of the procuring entity’s view that there was an issue with its financial statements’ compliance.
8. The Applicant contends that its disqualification was misconceived and unfair, as its financial statements complied with IFRS for SMEs and the auditor was properly identified through a signed opinion bearing a valid practising number, with the auditor’s name supplied elsewhere in the bid. Further, that the tender did not prohibit the use of IFRS for SMEs, that its five years of audited accounts complied with acceptable IFRS standards in Kenya and that disqualification on this basis imposed undisclosed and unlawful evaluation criteria contrary to sections 79(2)(b) and 80(2) of the PPADA.
9. Aggrieved by its disqualification on what it viewed as a minor technical formality, the Applicant lodged a Request for Review No. 100 of 2025, arguing that it was substantively compliant and that the procuring entity introduced requirements not stated in the tender.
10. The Respondent Public Procurement Administrative Review Board is stated to have heard the matter and in its decision of 18 th November 2025, it dismissed the request, upholding the disqualification on the ground that the Applicant failed to indicate the auditor’s name on the audit opinions contrary to ICPAK By-Law 38, a mandatory requirement. The Review Board directed the procuring entity to proceed with the procurement.
11. The Applicant was aggrieved by the decision of the Review Board, asserting that the decision is unlawful, unreasonable and unjust, that it has been excluded from a competitive tender worth approximately Kshs.194 million, and that quashing the decision and ordering a lawful re-evaluation would better serve fairness, the rule of law and public interest.
12. It is also the Applicant’s case that the Respondent committed errors of law and acted illegally and unreasonably by disqualifying the applicant’s bid despite full substantive compliance with the tender requirements.
13. The Applicant reiterates that it substantially complied with ICPAK By-Law 38, as the audit opinions were signed by a duly licensed auditor whose unique practising certificate number was clearly indicated, sufficiently identifying the auditor and any omission of a typed name was, at most, a minor and non-material deviation that caused no prejudice, which the Respondent irrationally elevated into a ground for disqualification, contrary to law and the principle of proportionality.
14. The Applicant maintains that the decision is ultra vires, unreasonable, and in breach of Article 47 of the Constitution and the Fair Administrative Action Act, warranting the Court’s intervention.
The Respondent’s Replying Affidavit
15. Opposing the application, the Respondent filed a replying affidavit sworn on 10 th December 2025, by Philemon Kiprop who introduces himself as the Secretary of the Respondent-Public Procurement Administrative Review Board.
16. Mr. Kiprop depones in contention that the Ex-parte Applicant’s challenge of the Respondent’s Decision dated 18 th November 2025 rendered in PPARB Application No. 100 of 2025 is an appeal against the Respondent’s Decision and is being disguised as a judicial review application. To this extent, he calls on this Court to decline to allow the prayers sought in these judicial review proceedings for want of jurisdiction to hear and determine an appeal against the Respondent’s Decision.
17. The respondent cited the Court of Appeal decision in Kenya Pipeline Company Limited v Hyosung Ebara Company Limited & 2 Others [2012] KECA 104 (KLR) where the Court is said to have held that the Respondent is a specialized statutory tribunal established to deal with all complaints of breach of duty by a procuring entity and it is conferred with wide powers which include, giving directions to the accounting officer of a procuring entity with respect to anything to be done or redone in the procurement or disposal proceedings and as such, the administrative review envisaged under the Act is indeed an appeal that from the Respondent’s nature, it follows that its decisions in matters within its jurisdiction should not be lightly interfered with.
18. It is the Respondent’s defence and contention that in reaching its decision, it considered each of the parties’ cases, documents, pleadings, oral and written submissions, list and bundle of authorities together with confidential documents submitted to it pursuant to Section 67(3)(e) of the Public Procurement and Asset Disposal Act Act.
19. The Respondent states that the Review Board framed 4 issues for determination: whether the 2 nd Interested Party’s Notice of Preliminary Objection was properly before it; whether the Applicant had the requisite locus standi to approach the Board by dint of Section 167(1) of the Act on the question of pleading loss and damage; whether the Procuring Entity breached Section 80(2) of the Act in disqualifying the Applicant at the Technical Evaluation stage; and the appropriate orders to grant.
20. That on the preliminary objection, the Board is said to have at paragraphs 62–77 of its Decision considered Regulation 206 as read with Regulation 209(1) of the Public Procurement and Asset Disposal Regulations, 2020 and relevant superior court pronouncements on the matter and held that objections on points of law should be raised at the earliest opportunity. It therefore admitted the 2 nd Interested Party’s Notice of Preliminary Objection dated 6 th November 2025 and filed on 7 th November 2025 as being properly before it.
21. On locus standi which is said to have been addressed at paragraphs 88–110 of its decision, the Review Board is said to have found that the Applicant’s claim of being aggrieved, prejudiced, disenfranchised and discriminated against disclosed a grievance arising from an alleged breach of duty under the Act and that this conferred locus standi under Section 167(1) of the Act. That in summation, the Review Board held that it had jurisdiction to hear and determine the Request for Review No. 100 of 2025 on its merits.
22. On the substantive issue under Section 80(2) of the Act, the Review Board is said to have considered the Applicant’s argument that its disqualification amounted to the application of extraneous criteria and an immaterial technicality, and took note of the procurement principles stipulated under Article 227 of the Constitution and Section 3 of the Public Procurement Act. It is asserted that the Respondent herein also took into account Sections 58, 60(1), and 70 of the Public Procurement and Asset Disposal Act on the requirement for an accounting officer of a procuring entity to use a standard tender document in all procurement and asset disposal proceedings containing sufficient information and specific requirements, Sections 80(1) and (2) on evaluation using stated criteria, Section 79(1) on responsiveness and settled law on mandatory requirements.
23. That upon reviewing the notification letter dated 14 th October 2025 against Technical Requirement 11 of Part B – Technical Evaluation of Section III – Evaluation and Qualification Criteria, the Review Board found that bidders were mandatorily required to submit audited financial statements incorporating balance sheets (statements of financial position), profit and loss statements (statements of comprehensive income) and cash flow statements for specified years, prepared in accordance with International Financial Reporting Standards, incorporating audit opinions issued in accordance with ICPAK By-Law No. 38, and duly filled Forms 3.1 and 3.2.
24. The Board is said to have noted from the Evaluation Report that the Applicant was among seven bidders disqualified at the Technical Evaluation stage because the auditor’s name did not appear on the independent audit opinion.
25. That upon perusing the Applicant’s tender document under Section 67(3)(e), the Review Board detailed the documents submitted, including Forms 3.1 (pages 70–72), the auditor’s Annual Practicing License (page 74), the firm’s practicing license (page 75), and audited financial statements for 2020–2024 (pages 76–138). It is urged that these incorporated the Report of the Independent Auditor issued at pages 79-80 for year 2020, 92-93 for year 2021, 105-106 for year 2022, 118-119 for year 2023, and 131-132 for year 2024.
26. The Review Board is said to have at paragraphs 135–136 of its Decision, found that although the audit opinions were signed, stamped, and dated under the firm of AMG-Kenya with practicing number P/2067 appended, the name appearing below the signature was that of the firm and not the auditor personally, leading to disqualification.
27. Relying on ICPAK Guidelines on Signing Assurance Engagements under By-Law No. 38, the review Board, it is deposed, held that an auditor must sign in their own name or, if signing in the firm’s name, must indicate the auditor’s personal name prominently below the signature. The Review Board depones that it concluded that the Applicant’s audit opinions did not comply with ICPAK By-Law No. 38 because the auditor’s name did not appear and that annexing the auditor’s Annual Practicing License at page 74 could not cure this non-compliance.
28. The Review Board contends that it contrasted this with the 2 nd Interested Party’s bid, noting that the latter’s Audited Financial Statements found at pages 676–748 of its bid for the years 2024, 2023, and 2022 clearly identified the engagement partner, CPA Kabuya Julius Kingori P/1435, whose Annual Practicing License was also submitted at page 677, thereby complying with Technical Requirement 11 and promoting competitiveness under Article 227(1) of the Constitution.
29. It is the 1 st Respondent’s case that it noted the reference made by the Applicant to Section 79(2)(b) of the Act with regard to the effect of omission of the auditor’s typed name in the submitted independent audit opinions and argument that provision of the auditor’s membership number therein could be viewed as a minor deviation that does not materially depart from the tender requirement and is a harmless oversight that can be overlooked in the interest of substantive compliance and that while relying on the holding in Miscellaneous Civil Application 85 of 2018 Republic v Public Procurement Administrative Review Board Ex parte Meru University of Science & Technology; M/S Aaki Consultants Architects and Urban Designers (Interested Party) [2019] eKLR , it held that neither the Review Board nor a procuring entity can waive a mandatory requirement or term it as a “minor deviation” since a mandatory requirement is instrumental in determining the responsiveness of a tender and is a first hurdle that a tender must overcome in order to be considered for further evaluation.
30. The Review Board is said to have found that the Evaluation Committee correctly applied Section 80(2) of the Act, the Constitution and the Tender Document in disqualifying the Applicant at the Technical Evaluation stage.
31. The Respondent maintains that the Review Board’s Decision of 18 th November 2025 in the Request for Review No. 100 of 2025 was lawful, reasonable, procedurally fair, rational, and within its mandate, having taken into account Article 227 of the Constitution, the Act, the Regulations 2020 and the Fair Administrative Action Act.
32. It asserts that no illegality, error of law, irrationality, procedural unfairness, ultra vires conduct or abuse of power has been demonstrated, and prays that the Notice of Motion be dismissed with costs, or alternatively, that if the Decision is set aside, costs be disallowed pursuant to Section 175(7) of the Act.
The 1 st Interested Party’s response
33. The 1 st Interested Party which is also the procuring Entity, Kenya Airports Authority filed grounds of opposition dated 5 th November 2025. The 1 st Interested Party contends that the application is misconceived and incapable of being granted as the Applicant has not met the threshold for the issuance of judicial review orders. It further contends that the Applicant was granted a fair hearing by the Respondent in exercise of its powers under Section 173 of the Public Procurement and Assets Disposal Act.
34. According to the 1 st Interested Party, the Applicant is undeserving of the reliefs sought having failed to demonstrate how the Respondent acted irrationally, illegally, or ultra vires to the Public Procurement and Assets Disposal Act.
35. It is the 1 st Interested Party’s case that the instant Application is grossly incompetent, a classic case of abuse of court process designed and prosecuted solely to delay and to frustrate the Procuring Entity’s operations.
The 2 nd Interested Party’s response
36. The 2 nd Interested Party Sajucy Company Limited filed a replying affidavit sworn on 1 st December 2025 by Julius Asuma Kibagendi, who introduces himself as the Managing Director of the 2 nd Interested Party.
37. In the said affidavit, Mr. Kibagendi deposes that the Ex-Parte Applicant was correctly disqualified at the technical evaluation stage and was subsequently issued with the Letter of Regret dated 14 th October 2025 for failure to meet the Mandatory Requirement under Item 11 under Section III –Evaluation and Qualification Criteria Item 11. Further, that it was mandatory that the submitted financial statement was to be prepared in accordance with the International Financial Reporting Standards (IFRS) and incorporating audit opinions issued in accordance with ICPAK By-Law No. 38.
38. The deponent contends that on perusal of the Ex-Parte Applicant’s Supporting Affidavit’s annexures, wherein they have attached their submitted financial statements, it is evident that they did not bear the name of the individual auditor who prepared them, which is contrary to the above-mentioned Mandatory requirement. He states that the Applicant’s documents only display the firm name, firm stamp signature and practicing certificate number, without identifying the particular auditor, thereby correctly making their submitted bid to be non-responsive and non-compliant with Section 79(1) of the Public Procurement and Asset Disposal Act (PPADA), 2015.
39. Further deposition is that, during the hearing of the Request for Review in PPARB No. 100 of 2025, the Ex Parte Applicant confirmed that they had not fully complied with the above-mentioned mandatory requirement. It is also the 2 nd Interested Party’s case that the Board in its detailed decision, correctly applied the law under Section 79(1) and 80(2) of the PPADA, 2015 and rightfully found the Applicant’s bid non-responsive for not meeting the Mandatory requirements of the Tender thereby affirming the Procuring Entity’s letter of 14 th October 2025 to it.
40. The 2 nd Interested Party contends that the said Tender was evaluated in strict compliance of the Constitution of Kenya, the Public Procurement and Asset Disposal Act 2015 (PPADA 2015), the Public Procurement Regulations 2020 and Evaluation criteria set out in the Tender document more specifically at Clause 35 of the Instructions to Tenderers (ITT) (page 21) read together with the Tender Data Sheet (pages 25-30) and Section III Evaluation and Qualification Criteria (pages 29-62).
41. It is stated that the Applicant’s judicial review application is misconceived, frivolous and an abuse of court process and as such that it should be dismissed with costs.
42. The application was canvassed by way of written submissions.
The Applicant’s submissions
43. The Applicant filed written submissions dated 9 th December 2025. It argues that its bid was substantially and materially conforming, compliant and responsive to the tender requirements advertised by the 1 st Interested Party herein, and that on the strength of the fact that the bid was materially and substantially compliant, the same ought to have been considered notwithstanding any of the alleged immaterial and or minor defects.
44. To support this position the Applicant relies on the case of Republic v Public Procurement Administrative Review Board; Arid Contractors & General Supplies (Interested Party) Ex parte Meru University of Science & Technology [2019] KEHC 1935 (KLR) where the court is said to have observed that a conforming or responsive tender is one that meets all material or substantial requirements of the tender invitation and that procuring entities may evaluate tenders even when they include minor discrepancies that do not significantly change the essential terms, conditions or requirements of the tender documents, or contain errors or omissions that can be corrected without affecting the core substance of the tender.
45. The Applicant submits that the key operative words in so far as compliance is concerned are “material” and “substantial”, and that as such, a tender bid need not to be perfect as substantial compliance suffices and this is said to be in line with the finding of the court in Norland Construction (Pty) Ltd v Chris Hani Development Agency (SOC) Limited and Another (18/2022) [2024] ZAECMKHC 10 (23 January 2024) .
46. Further, that the Applicant’s bid was substantially responsive and compliant with the advertised tender requirements and that this has never been contested. It is also submitted that the bid passed the preliminary evaluation stage where it was declared responsive after meeting all the mandatory requirements of the advertised tender, and as such, the 1 st Interested Party ought to have evaluated the bid on its merits, namely, competence, qualifications, experience and its proposed plan on executing the proposed tender.
47. It is the Applicant’s further submission that as was held by the courts in the cases of Bytewise Limited v Accounting Officer, Kenya Civil Aviation Authority; Indra Limited (Interested Party) [2020] KEPPARB 35 (KLR) , Republic v Public Procurement Administrative Review Board; Kenya Medical Supplies Authority (KEMSA) (Interested Party) Ex parte Emcure Pharmaceuticals Limited [2019] KEHC 2976 (KLR) and Republic v Public Procurement Administrative Review Board & 2 others; Ex-Parte Central Kenya Fresh Merchants Limited [2018] KEHC 1203 (KLR), a minor defect or error is one that is inconsequential and does not affect the substance of the tender if corrected or waived.
48. The Applicant also submits that the omission of the auditor’s name in the Applicant’s financial statements was a minor defect within the meaning of Section 79(2) of the Public Procurement and Disposal Act and that this defect is inconsequential and does not affect the substance of the tender when corrected or waived. That the Applicant was more than willing to correct the defect had it been invited and or given the opportunity to do so by the Respondent. Also, that the the defect was not prejudicial to the other bidders and was also immaterial because it did not have any iota as to price, quantity, quality or delivery of the proposed tender.
49. It is submitted that the true intention and purpose behind by- law 38 was to ensure that financial reports and or statements are prepared by identifiable and authorized professional auditors, not quacks, and as such, the financial statements submitted by the Applicant proves that they were done and prepared by an identifiable and authorized professional whose unique professional identifier, the practise number, is provided in the statements. Similarly, that the said auditor is working in a recognized, regulated and reputable firm of auditors AMG Kenya Limited which is domiciled in Kenya and can be traced for purposes of identifying the concerned auditor.
50. The Applicant contends that its disqualification based on the omission of the name whose importance to the tendering process has not been explained by the Respondent is not only unreasonable but also without basis. The Applicant relies on the case of Norland Construction (Pty) Ltd v Chris Hani Development Agency (SOC) Limited and Another (18/2022) [2024] ZAECMKHC 10 (23 January 2024) where the court is said to have held that the bidder’s letter of good standing that had not been certified by a commissioner of oaths constituted an immaterial defect, and that given the procuring entity had not explained the importance of certification to the tendering process, it was unreasonable and unfair to disqualify a bidder on such immaterial error.
51. The Applicant also relies on the case of Minister of Social Development and Others v Phoenix Cash & Carry Pmb CC (189/06, 244/06) [2007] ZASCA 26; [2007] 3 All SA 115 (SCA); 2007 (9) BCLR 982 (SCA) (27 March 2007) where the court is said to have held that the prescripts and consequences of formalities must be clear if they are meant to be a mandatory requirement.
52. It is submitted that the mandatory nature and importance of the auditor’s name was not only unexplained in express and clear terms by the 1 st Interested Party when it advertised the tender but also that it was not demonstrated how the correction or waiver of the omission on the auditor’s name would prejudice the other bidders or affect the substance of the tender.
53. The Applicant further relies on the case of Republic v Public Procurement Administrative Review Board Ex parte Meru University of Science Technology MS Aaki Consultants Architects and Urban Designers (Interested Party) 2019 KEHC 9313(KLR) where the court is said to have held that a true procuring entity may condone some deficiencies.
54. The Applicant submits that the courts as was held in the case of Republic v Public Procurement Administrative Review Board Ex parte Meru University of Science Technology MS Aaki Consultants Architects and Urban Designers (supra) have held that it is mandatory for a procuring entity to strictly stick to the evaluation criteria set out in the tender documents as envisaged under Section 80(2) of the Public Procurement and Disposal Act.
55. The Applicant also relies on the case of Millennium Waste Management (Pty) Ltd. v Chairperson of the Tender Board: Limpopo Province and Others (31/2007) [2007] ZASCA 165; [2007] SCA 165 (RSA); [2008] 2 All SA 145; 2008 (2) SA 481; 2008 (5) BCLR 508; 2008 (2) SA 481 (SCA) (29 November 2007) where the court is said to have observed that the failure of the maker not signing but including his name and identification was an inadvertent mistake and that what was important was the nature of the information provided not the omitted signature.
56. According to the Applicant, the omission of the auditor’s name was an inadvertent mistake and that the fact that the auditor provided his practise number and further signed the documents proves that he was complying with by law 38 by providing his identification detail as an authorized professional. Moreover, that what is important is the information contained in the financial statements speaking to the Ex parte Applicant’s financial position as opposed to the auditor’ name.
57. It is further submitted that the objective an
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