REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
JUDICIAL REVIEW DIVISION
JUDICIAL REVIEW APPLICATIONS NOS. E001 AND E002 OF 2026[CONSOLIDATED]
-BETWEEN-
REPUBLIC…………………………………………………...APPLICANT
VERSUS
THE PUBLIC PROCUREMENT ADMINISTRATIVE
REVIEW BOARD………………………………………...RESPONDENT
AND
COUNTY GOVERNMENT OF NYERI……1 ST INTERESTED PARTY
GOLDFIELD INSURANCE
BROKERS LIMITED…………………….....2 ND INTERESTED PARTY
AND
EX-PARTE
UTMOST INSURANCE BROKERS LIMITED [APPLICANT IN JR E001 OF 2026]
AND
GOLDFIELD INSURANCE BROKERS LIMITED [APPLICANT IN JR E002 OF 2026]
JUDGMENT
Introduction:
In public procurement regulation, it is a general rule that procuring entities should consider only conforming, compliant or responsive tenders.[1] Tenders should comply with all aspects of the invitation to tender and meet any other requirements laid down by the procuring entity in its tender documents. Bidders should, comply with tender conditions; a failure to do so would defeat the purpose of supplying information to bidders for the preparation of tenders and amount to unfairness if some bidders were allowed to circumvent tender conditions. It is important for bidders to compete on an equal footing. Moreover, they have a legitimate expectation that the procuring entity will comply with its own tender conditions. Requiring bidders to submit responsive, conforming or compliant tenders also promotes objectivity and encourages wide competition in that all bidders are required to tender on the same work and the same terms and conditions.
Per Mativo J in Republic v Public Procurement Administrative Review Board; Accounting Officer, Kenya Rural Roads Authority & 2 others (Interested Parties) Ex Parte Roben Aberdare (K) Ltd [2019] KEHC 5570 (KLR) Citing Arrowsmith, Linarelli and Wallace Regulating Public Procurement 650-673; Cibinic and Nash Formation of Government Contracts 537-592.
1. This consolidated judgment determines two applications challenging the same decision rendered by the first respondent Public Procurement Administrative Review Board (the Review Board or the Board), rendered on 22 nd December, 2025. The ex-parte Applicants in both cases are Utmost Insurance Brokers Limited and Goldfield Insurance Brokers Limited respectively. Each of the exparte applicants filed their separate applications which were consolidated on 13/1/2026 by consent of all the parties. The application by Utmost Insurance Brokers Limited was filed on 2 nd January 2026 in this JR E001 of 2026, opening the new year as the first case which I am happy to determine within the first 45 days of the year as stipulated in section 175(3) of the Public Procurement and Asset Disposal Act (the Act), whereas the application by Goldfield Insurance Brokers Limited was filed on 5 th January, 2026, as the second case of the new year and which is being determined within 42 days.
2. I will first outline the case for the exparte applicant in JR E001 of 2026 as set out before venturing into JR E002 of 2026 and finding the issues for determination in both cases. For avoidance of doubt, JR E 001 of 2026 shall be the parent file with the parties’ descriptions as they are therein, in order to avoid any confusion as to which party is which.
3. In the application in JR E001 of 2026 filed by Utmost Insurance Brokers Limited , the exparte applicant seeks the following orders:
a) An order of certiorari to remove into this Honourable Court and quash the decision of the Respondent delivered on 22 nd December 2025 in Request for Review Application No. 111 of 2025 in relation to Tender No. CGN/CS/INS/01/2025‑2026 for Provision of Comprehensive Medical Insurance Cover for Executive and Staff.
b) An order of prohibition restraining the Respondent and the Interested Parties from implementing, giving effect to, or in any way acting upon the said decision of the Public Procurement Administrative Review Board Request for Review Application No. 111 of 2025, including any steps towards cancellation, re‑advertisement or fresh procurement founded on that decision.
c) An order of prohibition restraining the Respondent and the Interested Parties from commencing, progressing or concluding any fresh procurement process for provision of comprehensive medical insurance cover for Executive and Staff on the strength of, or pursuant to, the impugned decision of the Public Procurement Administrative Review Board in Review Application No. 111 of 2025.
d) An order of mandamus compelling the Respondent and the Interested Parties, insofar as may be necessary upon quashing of the impugned decision, to proceed with the subject procurement strictly in accordance with the law and the tender documents, and without reliance on or reference to the nullified decision of the Public Procurement Administrative Review Board in Review Application No. 111 of 2025.
e) Such further or other orders and directions as this Honourable Court may deem fit and just to grant in the circumstances of this case.
f) THAT the costs of this Application be provided for.
4. The Notice of motion application was filed pursuant to leave to apply granted on 2 nd January, 2026 and is predicated on the grounds on the face of the motion and the statutory statement dated 2 nd January 2026 as verified by the affidavit sworn by Mr. Stanley Gikandi an authorised officer of the exparte applicant, a limited liability company.
5. The exparte applicant’s case as detailed in the statutory statement and the depositions by Mr Gikandi is that on 22 nd December 2025, the Public Procurement Administrative Review Board delivered a decision in Public Procurement Administrative Review Board Application No. 111 OF 2025 in respect of Tender No. CGN/CS/INS/01/2025‑2026 for Provision of Comprehensive Medical Insurance Cover for Executive and Staff .
6. In the said decision which is impugned by the exparte applicant, the Respondent Review Board is said to have found that the substance of the dispute revolved around the manner in which the tender opening was conducted and that the alleged breach occurred and was known to the Applicant at the tender opening on 6 th November 2025.
7. The Respondent Review Board is said to have held that time for lodging of the Request for Review began to run from the notification of award dated 18 th November 2025.
8. The exparte applicant contends that the respondent Review Board misconstrued and misapplied section 167(1) of the Public Procurement and Asset Disposal Act and Regulation 203(2)(c)(iii) of the Public Procurement and Asset Disposal Regulations, 2020 which require a request founded on a mid‑process breach to be filed within fourteen (14) days of the occurrence of that breach.
9. According to the exparte applicant, on a proper construction of section 167(1) of the Act, the Request for Review filed on 1 st December 2025 was incurably time‑barred, and that the Respondent therefore lacked jurisdiction to entertain or determine the Public Procurement Administrative Review Board Application/ Request for Review No. 111 of 2025 .
10. The exparte applicant contends that the said Review Board’s decision is tainted with illegality for want of jurisdiction on the part of the Respondent, and is allegedly further vitiated by irrationality, unreasonableness and abuse of power. That by arrogating jurisdiction to itself in the face of a statutory time bar, the Respondent acted without jurisdiction, ultra vires and illegally in hearing and determining the said Request for Review.
11. It is asserted that the Respondent Review Board having so acted without jurisdiction, it further exceeded its powers by purporting to nullify the letters of notification of award, cancel the entire tender proceedings, direct the re‑advertisement of the tender, and issue wide‑ranging supervisory directions to the Accounting Officer of the County Government of Nyeri and to the Director‑General of the Public Procurement Regulatory Authority.
12. The exparte applicant avers that the Respondent’s decision is irrational and unreasonable in that it treated tender‑opening events of 6 th November 2025 as sufficiently grave to “taint the entire tendering process with illegality ”, yet declined to treat those same events as the operative date for purposes of the statutory limitation period under section 167(1) of the Act.
13. The Respondent is further accused of acting unreasonably and disproportionately by collapsing the entire procurement and compelling a re‑advertisement on the strength of a narrow bidder‑specific grievance, thereby penalizing all bidders and the procuring entity for acts attributable to the tender opening committee and secretariat and not to the Applicant.
14. The Respondent is further stated to have failed to take into account relevant considerations, including the strict and mandatory nature of the timelines under section 167(1), the procurement‑specific jurisprudence requiring complaints on mid‑process breaches to be brought within fourteen (14) days of their occurrence, and the need to fashion remedies that are proportionate and confined to the specific breach established.
15. According to the exparte applicant, the re‑advertising of the tender will occasion grave prejudice of the Applicant and is contrary to the law.
16. Further, that the wider interests of justice and good administration will best be served if the orders sought herein are granted, and that no prejudice will be suffered by the Respondents or the Interested Parties that cannot be adequately addressed within the framework of the procurement law.
17. The applicant invokes the supervisory jurisdiction of this Court and urges the Court to intervene and to quash the alleged illegal, unreasonable and manifestly unjust decision of the Respondent herein.
The Respondent’s Replying Affidavit
18. The Respondent Public Procurement Review Administrative Review Board whose decision rendered on 22 nd December, 2025 is impugned by both applicants in the consolidated Judicial review applications, but for slightly different reasons, with the exparte applicant herein impugning the jurisdiction of the respondent on account of time lapse of the request for review and the alleged error by the procuring entity while the exparte applicant in JR E002 of 2026 basically challenges the action by the Respondent Review Board in its decision to annul the entire procurement process on account of the alleged fraud on the part of the tender opening Committee, and asserting that the Review Board should, upon its finding that the exparte applicant herein was non responsive have declared the applicant in JR E002 OF 2026 the highest evaluated bidder and therefore should have directed the procuring entity to award it the tender.
19. In the replying affidavit sworn by Mr. Philemon Kiprop the Board Secretary of the Review Board on 9 th January, 2026, it is deposed that the application by the applicant is misconceived, devoid of merit and unsustainable in law as it is pegged on misapprehension and misinterpretation of the Respondent’s decision by the applicant.
20. The Respondent reproduces the orders sought in the request for review vide Request for Review No.111 of 2025 by the 2 nd interested party Goldfield Insurance Brokers on 1 st December, 2025 and that after the respondent assumed jurisdiction and upon hearing all the parties, it rendered its decision on 22 nd December, 2025. The respondent also reproduces the orders which it made in its determination of the Request for Review by the 2 nd interested party herein.
21. The respondent asserts that it acted within the confines of its statutory mandate after considering all the parties positions and the confidential documents guided by previous decisions of this Court on similar matters and identifying 3 issues which it determined namely, jurisdiction to hear and determine the request for review, whether the tender opening was done in accordance with the law and what appropriate orders should issue in the circumstances.
22. The respondent maintains that it was within the law in treating the request for review as having been filed within 14 days of notification of award being the moment when the cause of action crystallised, and in accordance with section 167(1) of the Act.
23. That after examining the tender opening committee minutes, it questioned the authority under which the procuring entity examined the tender documents to discover the error and called and send messages to the bidders ‘representatives having already departed from the opening venue and trying to return them to verify the information, which the respondent took issue as being contrary to section 64 (1) of the Act.
24. According to the respondent, the tender opening committee ought not to have instructed the secretary to contact bidders after conclusion of the opening exercise and their departure as that offended section 67 (1) of the Act.
25. That the alleged oversight amounted to serious breach of the law thereby rendering the entire procurement process tainted with illegality hence the nullification of the entire process.
26. That the applicant had not demonstrated any illegality, irrationality, procedural impropriety or unfairness in the manner in which it considered and interrogated the evidence, documents, pleadings and information before arriving at its now impugned decision in Request for Review No. 111 of 2025.
The Replying Affidavit By The Accounting Officer And Procuring Entity, the 1 st Interested Party
27. The 1 st Interested party, County Government of Nyeri, filed a replying affidavit sworn by Edward Irungu Mwangi, its County Secretary on 12 th January, 2026. In the said affidavit, the procuring entity defends its decision which was impugned before the Review Board asserting that there was an oversight on the part of the tender opening Committee when it inadvertently readout that the applicant had provided a bid security of Kshs 3 million instead of Kshs 6.9 million.
28. That the oversight was subsequently identified and efforts were made to reconvene the bidders’ representatives who, unfortunately, had already left the premises, with the intention of verifying the anomaly with all the parties involved and that when the parties could not be found physically, the procuring entity reached out to them via the mobile phone calls and follow ups with short message service.
29. That in the request for review, the 2 nd interested party anchored its claim on alleged breach which was discovered on 6 th November, 2025 when the bids were opened.
30. That the claim that the Review Board should have awarded the tender to the applicant herein is inconsistent with the principles of competitive bidding and further contradicts the applicant’s prayers sought before the Review Board, where the applicant claimed that the process was fraudulent yet insisting that the tender should have been awarded to them.
31. That the procuring entity is apprehensive of institutional retribution in service provision if the ground 8 of imputing unprofessionalism is to be considered arguable.
32. That prayer 3 offends the Constitutional provisions of Article 227 that calls for fair, equitable, transparent, competitive and cost-effective model of public procurement by locking out interested parties that may offer value for money compared to the applicant.
33. That the applicant donated to the Review Board, in their omnibus prayer of any other or further relief that the Board deemed just and fit to grant, wide and sweeping powers hence the applicant cannot appear selective on the orders that the Review Board ought to have granted, since the remedies include the nuclear option of fresh advertisement of the tender.
34. That the applicant is cherry picking on favourable orders while introducing new issues which were not before the Review Board after yielding to the jurisdiction of the Review Board to make any orders.
35. That the unreasonableness and the ultra vires nature of the decision has not been pleaded with specificity with the applicant only selectively picking issues of law that are favourable to it.
36. That the applicant has not demonstrated that the orders issued by the Review Board were inconsistent with the provisions of the Act.
37. That this judicial review application seeks to erode the discretion of the Review Board by imposing a favourable decision. That the Board in its decision took into account the urgent need for the procurement of the medical insurance services whose absence would occasion irreparable harm to the staff and the executive of the procuring entity.
38. The procuring entity also filed a similar replying affidavit sworn by the same deponent County secretary, opposing the application in JR E002 of 2026 on 5 th January, 2026.
The 2 nd Interested Party’s Replying Affidavit
39. The 2 nd Interested party in JRE001 of 2026, which is Goldfield Insurance Brokers Limited filed a replying affidavit sworn by Vincent Osewe, in response to the Ex-Parte Applicant’s Notice of Motion dated 2 January 2026, the Chamber Summons, Statutory Statement and Verifying Affidavit of Stanley Gikandi dated 31 December 2025, and the 1 st Interested Party’s Replying Affidavit of Edward Irungu Mwangi dated 5 January 2026)
40. On the issue of the Review Board’s jurisdiction, it is deposed that the Respondent (PPARB) was properly seized of jurisdiction under Section 167(1) of the Act, as the 14-day statutory period only commenced upon receipt of the Letter of Notification of Award dated 18 November 2025.
41. According to the 2 nd interested party, the Ex-Parte Applicant’s contention that time began to run on 6 November 2025 is a legal fallacy; since under Section 78(7) of the Act, a tenderer cannot be disqualified at the opening stage, and thus no actionable breach could have crystallized until the evaluation process was concluded and an award communicated.
42. The 2 nd interested party supports the Review Board’s decision in its application of the discoverability principle, finding that the cause of action only arose when the Ex-Parte Applicant could juxtapose the recorded tender security against the fact that the Interested Party had been declared the successful bidder. That to suggest that a bidder must file a review mid-process based on an SMS "clarification" is to invite a chaotic and fragmented procurement regime that contradicts the strict timelines and procedural order mandated by the Public Procurement and Asset Disposal Regulations, 2020.
43. Further, that the Respondent is a creature of statute with the mandate to review, hear, and determine disputes where a breach of duty is alleged and that once the Ex-Parte Applicant established that the 14-day window was met, excluding the date of notification as per Section 57 of the Interpretation and General Provisions Act, the Board’s jurisdiction became absolute and non-derogable.
44. That the Board, having painstakingly analyzed the chronology of events, correctly clothed itself with the authority to intervene to protect the integrity of a public process that had been brazenly compromised by fraudulent manoeuvres.
45. On Alleged "Oversight" During Tender Opening , the 2 nd Interested party deposes in contention that the Ex-Parte Applicant and the 1 st Interested Party falsely characterize the recording of the tender security as a "minor error" or "oversight".
46. The deponent asserts that he was personally present at the tender opening on 6 November 2025 , and that he confirms that the 1 st Interested Party’s Committee read aloud the Ex-Parte Applicant’s tender security as KES. 3,000,000.00 .
47. Further, that during the opening session, the Ex-Parte Applicant’s representative, Mr. Muriithi, specifically volunteered the location of the bid bond, confirmed the KES. 3,000,000.00 amount, and expressed full satisfaction with that record.
48. That the Ex-Parte Applicant’s representative having made an unequivocal admission at the point of opening, the Ex-Parte Applicant is now caught by the doctrine of estoppel and cannot be heard to contradict a public record that was created with their active participation and express consent.
49. That it is a contradiction for the Ex-Parte Applicant to now claim, and for the 1 st Interested Party to support, that a different security of KES. 6,900,000.00 was "discovered" over an hour after the bidders had dispersed. I verily believe that any bid security of KES. 6,900,000.00 was introduced to favour the Ex-Parte Applicant after the tender opening process had been closed and the bidders had dispersed.
50. The deponent disputes the claim that a lawful “clarification” occurred, and contends that reliance on an informal SMS to alter a mandatory tender requirement was irregular, non-transparent and incapable of curing non-responsiveness.
51. On the alleged illegality of the post-opening sms "clarification", the 2 nd interested party contends that the SMS sent at 1:56 p.m. (Thursday, 6 Nov) was not a lawful "clarification" under Section 81 of the Act.
52. According to the 2 nd interested party, Section 78(6) of the Act mandates that bid particulars, specifically tender security, must be read aloud and recorded contemporaneously to ensure transparency.
53. Further, that the Review Board is duty-bound under Section 28 of the Act to determine disputes involving breaches of statutory duty; thus, ignoring a blatant post-opening document alteration would have amounted to a jurisdictional failure by the Board to uphold the integrity of the procurement system.
54. It is further contended that any attempt to "correct" or substitute a mandatory document after the public opening is "shut" constitutes a fraudulent manoeuvre to "sneak in" compliant documents that were never part of the original public record.
55. The 2 nd interested party maintains that the Ex-Parte Applicant’s bid was non-responsive at the point of opening and could not be "resurrected" by informal, non-auditable text messages.
56. In response to the 1 st interested party’s affidavit sworn by Edward Irungu Mwangi, the 2 nd interested party deposes in contention, maintaining its position that the 1 st Interested Party’s Affidavit is an attempt to sanitize systemic procurement irregularities and to validate an unlawful evaluation.
57. Further, that the 1 st Interested Party introduced a mysterious bidder, "Amana," in their technical evaluation who was never recorded at the tender opening, further proving that the entire process was tainted with illegality.
58. Additionally, that the 1 st Interested Party’s claim of acting in "good faith" is belied by the fact that they ignored the immediate SMS objection which warned that changing documents post-opening was unacceptable.
59. On the correctness of the Review Board’s finding on illegality, the 2 nd interested party refers to its separately instituted proceedings challenging the scope of the Board’s remedy; but that in these proceedings it opposes the Ex-Parte Applicant’s attack on the Board’s jurisdiction and its finding that the procurement process was unlawful.
60. It maintains that the Ex-Parte Applicant is not entitled to the orders of Certiorari or Mandamus as it seeks seek to enforce an award founded on a fraudulent and procedurally flawed foundation.
61. On the merits of the judicial review orders sought, the 2 nd interested party asserts that Judicial Review is an equitable jurisdiction, and that the Ex-Parte Applicant, by seeking to benefit from a clandestine and unauthorized SMS 'clarification' that bypassed formal procurement channels, comes to this Court with unclean hands, thereby disentitling itself to the discretionary orders of Certiorari , Prohibition or Mandamus .
62. Further, that the prayer for Certiorari is misplaced as it seeks to quash a Board decision founded on clear evidence of procedural impropriety, including the 1 st Interested Party's admission of an unlawful post-opening alteration.
63. That an order of Prohibition cannot lie to stop the implementation of a decision that restored legality to a process where the 1 st Interested Party introduced a mysterious bidder, "Amana," who was never present at the tender opening.
64. That the prayer for Mandamus is a gross abuse of court process, as it seeks to compel the 1 st Interested Party to award a multi-million-shilling contract to a bidder who failed a mandatory preliminary requirement and whose bid was void ab initio .
65. That the Ex-Parte Applicant is not entitled to discretionary remedies from this Court as it comes with "unclean hands," having benefited from a fraudulent manoeuvre to alter their bid particulars mid-process.
66. The 2 nd interested party urges this court to dismiss the judicial review application for want for merit as it is an attempt to reinstate a procurement fraud.
The Exparte Applicant’s Further Affidavit
67. In the further affidavit sworn by the exparte applicant’s Managing Director, on 2 nd January, 2026, Mr. Stanley Gikandi reiterates the exparte applicant’s position and in response to the replying affidavits sworn by Philemon Kiprop for the Respondent and the Replying Affidavit of Vincent Osewe for the 2 nd interested party, Mr. Gikandi deposes that the respondent has mischaracterized the Applicant's Case in that contrary to the Respondent's assertion that the Notice of Motion and its supporting grounds were founded on a misapprehension of its decision, the Respondent rendered a decision that was irrational, unreasonable, unlawful and procedurally unfair, having failed to consider the totality of the evidence on record and the true factual position.
68. That the Respondent, without any lawful or reasonable justification, failed to consider the very documents forming the core of the dispute and the surrounding circumstances, notwithstanding that the same were plainly contained in the Applicant's Response to the Request for Review application, the bid document and were serialized, indexed and bound as part of the bid document submitted.
69. That in particular, the Respondent failed to examine and appreciate the distinction between the following two documents, namely: the Applicant's tender security dated 5th November 2025, appearing at page 43 (Item 12, pages 42-43 of the tender document), clearly addressed to the procuring entity, being the 2nd Respondent; and the SMEP Bank guarantee dated 6th March 2024 appearing at page 233, being a certified copy of a bank guarantee for Kshs. 3,000,000.00 deposited with the Insurance Regulatory Authority solely for regulatory licensing purposes.
70. That the two different documents served different purposes, and were expressly identified as such in the table of contents of the bid document, which both documents were also part of the requirements in the tender documents and that none was additional or outside the requirements of the tender documents.
71. Further, that had the Respondent examined the bid document as a whole, including serialization, the table of contents and documents themselves, it would not have reached the erroneous conclusion.
72. That instead, the Respondent placed undue reliance on the tender opening register and minutes, while declining to interrogate the contested documents themselves, thereby arriving at a conclusion that was not only factually incorrect but irrational and unreasonable.
73. That the Respondent's failure to take into account relevant, material and readily available evidence, while relying on incomplete secondary records, constituted a fundamental error of law and fact, thereby rendering the impugned decision amenable to this Honourable Court's supervisory jurisdiction by way of judicial review.
74. According to the exparte applicant, the Respondent failed to consider that, upon realizing an inadvertent error at the tender opening, the 1st Interested Party's tender opening committee took reasonable, transparent and proportionate steps to avert injustice to any tenderer by the tender opening committee recalling the representatives who had been present to clarify the error, and that upon learning that the representatives, including that of the Applicant and the 2nd Interested Party had already left the venue, promptly communicated through SMS to the telephone numbers supplied by bidders.
75. That the communication expressly clarified that the wrong document had been read out and that the correct tender security submitted by the Applicant was the Family Bank guarantee of Kshs. 6,900,000.00 contained at page 43 of the bid document.
76. That the Respondent failed to fairly consider the context, purpose and effect of the said communication and instead reduced the matter to procedural technicalities which did not address the substantive question of what documents were actually contained in the bid at the time of submission.
77. That the Respondent also failed to address the critical legal issue, namely, the effect of an inadvertent tender-opening error such as reading of the wrong tender security, bearing in mind that under Section 79 of the Public Procurement and Asset Disposal Act, no evaluation or determination of responsiveness is undertaken at the tender-opening stage.
78. That issues of responsiveness of a tender are reserved exclusively for the tender evaluation committee and not the tender opening committee.
79. That by treating a tender opening committee’s error as determinative legality of the whole tender process, and by disregarding both the correction and the documentary record, the Respondent acted capriciously and in total disregard of the law thereby usurping the statutory mandate of the tender evaluation committee.
80. That in so do
[...truncated]
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
JUDICIAL REVIEW DIVISION
JUDICIAL REVIEW APPLICATIONS NOS. E001 AND E002 OF 2026[CONSOLIDATED]
-BETWEEN-
REPUBLIC…………………………………………………...APPLICANT
VERSUS
THE PUBLIC PROCUREMENT ADMINISTRATIVE
REVIEW BOARD………………………………………...RESPONDENT
AND
COUNTY GOVERNMENT OF NYERI……1 ST INTERESTED PARTY
GOLDFIELD INSURANCE
BROKERS LIMITED…………………….....2 ND INTERESTED PARTY
AND
EX-PARTE
UTMOST INSURANCE BROKERS LIMITED [APPLICANT IN JR E001 OF 2026]
AND
GOLDFIELD INSURANCE BROKERS LIMITED [APPLICANT IN JR E002 OF 2026]
JUDGMENT
Introduction:
In public procurement regulation, it is a general rule that procuring entities should consider only conforming, compliant or responsive tenders.[1] Tenders should comply with all aspects of the invitation to tender and meet any other requirements laid down by the procuring entity in its tender documents. Bidders should, comply with tender conditions; a failure to do so would defeat the purpose of supplying information to bidders for the preparation of tenders and amount to unfairness if some bidders were allowed to circumvent tender conditions. It is important for bidders to compete on an equal footing. Moreover, they have a legitimate expectation that the procuring entity will comply with its own tender conditions. Requiring bidders to submit responsive, conforming or compliant tenders also promotes objectivity and encourages wide competition in that all bidders are required to tender on the same work and the same terms and conditions.
Per Mativo J in Republic v Public Procurement Administrative Review Board; Accounting Officer, Kenya Rural Roads Authority & 2 others (Interested Parties) Ex Parte Roben Aberdare (K) Ltd [2019] KEHC 5570 (KLR) Citing Arrowsmith, Linarelli and Wallace Regulating Public Procurement 650-673; Cibinic and Nash Formation of Government Contracts 537-592.
1. This consolidated judgment determines two applications challenging the same decision rendered by the first respondent Public Procurement Administrative Review Board (the Review Board or the Board), rendered on 22 nd December, 2025. The ex-parte Applicants in both cases are Utmost Insurance Brokers Limited and Goldfield Insurance Brokers Limited respectively. Each of the exparte applicants filed their separate applications which were consolidated on 13/1/2026 by consent of all the parties. The application by Utmost Insurance Brokers Limited was filed on 2 nd January 2026 in this JR E001 of 2026, opening the new year as the first case which I am happy to determine within the first 45 days of the year as stipulated in section 175(3) of the Public Procurement and Asset Disposal Act (the Act), whereas the application by Goldfield Insurance Brokers Limited was filed on 5 th January, 2026, as the second case of the new year and which is being determined within 42 days.
2. I will first outline the case for the exparte applicant in JR E001 of 2026 as set out before venturing into JR E002 of 2026 and finding the issues for determination in both cases. For avoidance of doubt, JR E 001 of 2026 shall be the parent file with the parties’ descriptions as they are therein, in order to avoid any confusion as to which party is which.
3. In the application in JR E001 of 2026 filed by Utmost Insurance Brokers Limited , the exparte applicant seeks the following orders:
a) An order of certiorari to remove into this Honourable Court and quash the decision of the Respondent delivered on 22 nd December 2025 in Request for Review Application No. 111 of 2025 in relation to Tender No. CGN/CS/INS/01/2025‑2026 for Provision of Comprehensive Medical Insurance Cover for Executive and Staff.
b) An order of prohibition restraining the Respondent and the Interested Parties from implementing, giving effect to, or in any way acting upon the said decision of the Public Procurement Administrative Review Board Request for Review Application No. 111 of 2025, including any steps towards cancellation, re‑advertisement or fresh procurement founded on that decision.
c) An order of prohibition restraining the Respondent and the Interested Parties from commencing, progressing or concluding any fresh procurement process for provision of comprehensive medical insurance cover for Executive and Staff on the strength of, or pursuant to, the impugned decision of the Public Procurement Administrative Review Board in Review Application No. 111 of 2025.
d) An order of mandamus compelling the Respondent and the Interested Parties, insofar as may be necessary upon quashing of the impugned decision, to proceed with the subject procurement strictly in accordance with the law and the tender documents, and without reliance on or reference to the nullified decision of the Public Procurement Administrative Review Board in Review Application No. 111 of 2025.
e) Such further or other orders and directions as this Honourable Court may deem fit and just to grant in the circumstances of this case.
f) THAT the costs of this Application be provided for.
4. The Notice of motion application was filed pursuant to leave to apply granted on 2 nd January, 2026 and is predicated on the grounds on the face of the motion and the statutory statement dated 2 nd January 2026 as verified by the affidavit sworn by Mr. Stanley Gikandi an authorised officer of the exparte applicant, a limited liability company.
5. The exparte applicant’s case as detailed in the statutory statement and the depositions by Mr Gikandi is that on 22 nd December 2025, the Public Procurement Administrative Review Board delivered a decision in Public Procurement Administrative Review Board Application No. 111 OF 2025 in respect of Tender No. CGN/CS/INS/01/2025‑2026 for Provision of Comprehensive Medical Insurance Cover for Executive and Staff .
6. In the said decision which is impugned by the exparte applicant, the Respondent Review Board is said to have found that the substance of the dispute revolved around the manner in which the tender opening was conducted and that the alleged breach occurred and was known to the Applicant at the tender opening on 6 th November 2025.
7. The Respondent Review Board is said to have held that time for lodging of the Request for Review began to run from the notification of award dated 18 th November 2025.
8. The exparte applicant contends that the respondent Review Board misconstrued and misapplied section 167(1) of the Public Procurement and Asset Disposal Act and Regulation 203(2)(c)(iii) of the Public Procurement and Asset Disposal Regulations, 2020 which require a request founded on a mid‑process breach to be filed within fourteen (14) days of the occurrence of that breach.
9. According to the exparte applicant, on a proper construction of section 167(1) of the Act, the Request for Review filed on 1 st December 2025 was incurably time‑barred, and that the Respondent therefore lacked jurisdiction to entertain or determine the Public Procurement Administrative Review Board Application/ Request for Review No. 111 of 2025 .
10. The exparte applicant contends that the said Review Board’s decision is tainted with illegality for want of jurisdiction on the part of the Respondent, and is allegedly further vitiated by irrationality, unreasonableness and abuse of power. That by arrogating jurisdiction to itself in the face of a statutory time bar, the Respondent acted without jurisdiction, ultra vires and illegally in hearing and determining the said Request for Review.
11. It is asserted that the Respondent Review Board having so acted without jurisdiction, it further exceeded its powers by purporting to nullify the letters of notification of award, cancel the entire tender proceedings, direct the re‑advertisement of the tender, and issue wide‑ranging supervisory directions to the Accounting Officer of the County Government of Nyeri and to the Director‑General of the Public Procurement Regulatory Authority.
12. The exparte applicant avers that the Respondent’s decision is irrational and unreasonable in that it treated tender‑opening events of 6 th November 2025 as sufficiently grave to “taint the entire tendering process with illegality ”, yet declined to treat those same events as the operative date for purposes of the statutory limitation period under section 167(1) of the Act.
13. The Respondent is further accused of acting unreasonably and disproportionately by collapsing the entire procurement and compelling a re‑advertisement on the strength of a narrow bidder‑specific grievance, thereby penalizing all bidders and the procuring entity for acts attributable to the tender opening committee and secretariat and not to the Applicant.
14. The Respondent is further stated to have failed to take into account relevant considerations, including the strict and mandatory nature of the timelines under section 167(1), the procurement‑specific jurisprudence requiring complaints on mid‑process breaches to be brought within fourteen (14) days of their occurrence, and the need to fashion remedies that are proportionate and confined to the specific breach established.
15. According to the exparte applicant, the re‑advertising of the tender will occasion grave prejudice of the Applicant and is contrary to the law.
16. Further, that the wider interests of justice and good administration will best be served if the orders sought herein are granted, and that no prejudice will be suffered by the Respondents or the Interested Parties that cannot be adequately addressed within the framework of the procurement law.
17. The applicant invokes the supervisory jurisdiction of this Court and urges the Court to intervene and to quash the alleged illegal, unreasonable and manifestly unjust decision of the Respondent herein.
The Respondent’s Replying Affidavit
18. The Respondent Public Procurement Review Administrative Review Board whose decision rendered on 22 nd December, 2025 is impugned by both applicants in the consolidated Judicial review applications, but for slightly different reasons, with the exparte applicant herein impugning the jurisdiction of the respondent on account of time lapse of the request for review and the alleged error by the procuring entity while the exparte applicant in JR E002 of 2026 basically challenges the action by the Respondent Review Board in its decision to annul the entire procurement process on account of the alleged fraud on the part of the tender opening Committee, and asserting that the Review Board should, upon its finding that the exparte applicant herein was non responsive have declared the applicant in JR E002 OF 2026 the highest evaluated bidder and therefore should have directed the procuring entity to award it the tender.
19. In the replying affidavit sworn by Mr. Philemon Kiprop the Board Secretary of the Review Board on 9 th January, 2026, it is deposed that the application by the applicant is misconceived, devoid of merit and unsustainable in law as it is pegged on misapprehension and misinterpretation of the Respondent’s decision by the applicant.
20. The Respondent reproduces the orders sought in the request for review vide Request for Review No.111 of 2025 by the 2 nd interested party Goldfield Insurance Brokers on 1 st December, 2025 and that after the respondent assumed jurisdiction and upon hearing all the parties, it rendered its decision on 22 nd December, 2025. The respondent also reproduces the orders which it made in its determination of the Request for Review by the 2 nd interested party herein.
21. The respondent asserts that it acted within the confines of its statutory mandate after considering all the parties positions and the confidential documents guided by previous decisions of this Court on similar matters and identifying 3 issues which it determined namely, jurisdiction to hear and determine the request for review, whether the tender opening was done in accordance with the law and what appropriate orders should issue in the circumstances.
22. The respondent maintains that it was within the law in treating the request for review as having been filed within 14 days of notification of award being the moment when the cause of action crystallised, and in accordance with section 167(1) of the Act.
23. That after examining the tender opening committee minutes, it questioned the authority under which the procuring entity examined the tender documents to discover the error and called and send messages to the bidders ‘representatives having already departed from the opening venue and trying to return them to verify the information, which the respondent took issue as being contrary to section 64 (1) of the Act.
24. According to the respondent, the tender opening committee ought not to have instructed the secretary to contact bidders after conclusion of the opening exercise and their departure as that offended section 67 (1) of the Act.
25. That the alleged oversight amounted to serious breach of the law thereby rendering the entire procurement process tainted with illegality hence the nullification of the entire process.
26. That the applicant had not demonstrated any illegality, irrationality, procedural impropriety or unfairness in the manner in which it considered and interrogated the evidence, documents, pleadings and information before arriving at its now impugned decision in Request for Review No. 111 of 2025.
The Replying Affidavit By The Accounting Officer And Procuring Entity, the 1 st Interested Party
27. The 1 st Interested party, County Government of Nyeri, filed a replying affidavit sworn by Edward Irungu Mwangi, its County Secretary on 12 th January, 2026. In the said affidavit, the procuring entity defends its decision which was impugned before the Review Board asserting that there was an oversight on the part of the tender opening Committee when it inadvertently readout that the applicant had provided a bid security of Kshs 3 million instead of Kshs 6.9 million.
28. That the oversight was subsequently identified and efforts were made to reconvene the bidders’ representatives who, unfortunately, had already left the premises, with the intention of verifying the anomaly with all the parties involved and that when the parties could not be found physically, the procuring entity reached out to them via the mobile phone calls and follow ups with short message service.
29. That in the request for review, the 2 nd interested party anchored its claim on alleged breach which was discovered on 6 th November, 2025 when the bids were opened.
30. That the claim that the Review Board should have awarded the tender to the applicant herein is inconsistent with the principles of competitive bidding and further contradicts the applicant’s prayers sought before the Review Board, where the applicant claimed that the process was fraudulent yet insisting that the tender should have been awarded to them.
31. That the procuring entity is apprehensive of institutional retribution in service provision if the ground 8 of imputing unprofessionalism is to be considered arguable.
32. That prayer 3 offends the Constitutional provisions of Article 227 that calls for fair, equitable, transparent, competitive and cost-effective model of public procurement by locking out interested parties that may offer value for money compared to the applicant.
33. That the applicant donated to the Review Board, in their omnibus prayer of any other or further relief that the Board deemed just and fit to grant, wide and sweeping powers hence the applicant cannot appear selective on the orders that the Review Board ought to have granted, since the remedies include the nuclear option of fresh advertisement of the tender.
34. That the applicant is cherry picking on favourable orders while introducing new issues which were not before the Review Board after yielding to the jurisdiction of the Review Board to make any orders.
35. That the unreasonableness and the ultra vires nature of the decision has not been pleaded with specificity with the applicant only selectively picking issues of law that are favourable to it.
36. That the applicant has not demonstrated that the orders issued by the Review Board were inconsistent with the provisions of the Act.
37. That this judicial review application seeks to erode the discretion of the Review Board by imposing a favourable decision. That the Board in its decision took into account the urgent need for the procurement of the medical insurance services whose absence would occasion irreparable harm to the staff and the executive of the procuring entity.
38. The procuring entity also filed a similar replying affidavit sworn by the same deponent County secretary, opposing the application in JR E002 of 2026 on 5 th January, 2026.
The 2 nd Interested Party’s Replying Affidavit
39. The 2 nd Interested party in JRE001 of 2026, which is Goldfield Insurance Brokers Limited filed a replying affidavit sworn by Vincent Osewe, in response to the Ex-Parte Applicant’s Notice of Motion dated 2 January 2026, the Chamber Summons, Statutory Statement and Verifying Affidavit of Stanley Gikandi dated 31 December 2025, and the 1 st Interested Party’s Replying Affidavit of Edward Irungu Mwangi dated 5 January 2026)
40. On the issue of the Review Board’s jurisdiction, it is deposed that the Respondent (PPARB) was properly seized of jurisdiction under Section 167(1) of the Act, as the 14-day statutory period only commenced upon receipt of the Letter of Notification of Award dated 18 November 2025.
41. According to the 2 nd interested party, the Ex-Parte Applicant’s contention that time began to run on 6 November 2025 is a legal fallacy; since under Section 78(7) of the Act, a tenderer cannot be disqualified at the opening stage, and thus no actionable breach could have crystallized until the evaluation process was concluded and an award communicated.
42. The 2 nd interested party supports the Review Board’s decision in its application of the discoverability principle, finding that the cause of action only arose when the Ex-Parte Applicant could juxtapose the recorded tender security against the fact that the Interested Party had been declared the successful bidder. That to suggest that a bidder must file a review mid-process based on an SMS "clarification" is to invite a chaotic and fragmented procurement regime that contradicts the strict timelines and procedural order mandated by the Public Procurement and Asset Disposal Regulations, 2020.
43. Further, that the Respondent is a creature of statute with the mandate to review, hear, and determine disputes where a breach of duty is alleged and that once the Ex-Parte Applicant established that the 14-day window was met, excluding the date of notification as per Section 57 of the Interpretation and General Provisions Act, the Board’s jurisdiction became absolute and non-derogable.
44. That the Board, having painstakingly analyzed the chronology of events, correctly clothed itself with the authority to intervene to protect the integrity of a public process that had been brazenly compromised by fraudulent manoeuvres.
45. On Alleged "Oversight" During Tender Opening , the 2 nd Interested party deposes in contention that the Ex-Parte Applicant and the 1 st Interested Party falsely characterize the recording of the tender security as a "minor error" or "oversight".
46. The deponent asserts that he was personally present at the tender opening on 6 November 2025 , and that he confirms that the 1 st Interested Party’s Committee read aloud the Ex-Parte Applicant’s tender security as KES. 3,000,000.00 .
47. Further, that during the opening session, the Ex-Parte Applicant’s representative, Mr. Muriithi, specifically volunteered the location of the bid bond, confirmed the KES. 3,000,000.00 amount, and expressed full satisfaction with that record.
48. That the Ex-Parte Applicant’s representative having made an unequivocal admission at the point of opening, the Ex-Parte Applicant is now caught by the doctrine of estoppel and cannot be heard to contradict a public record that was created with their active participation and express consent.
49. That it is a contradiction for the Ex-Parte Applicant to now claim, and for the 1 st Interested Party to support, that a different security of KES. 6,900,000.00 was "discovered" over an hour after the bidders had dispersed. I verily believe that any bid security of KES. 6,900,000.00 was introduced to favour the Ex-Parte Applicant after the tender opening process had been closed and the bidders had dispersed.
50. The deponent disputes the claim that a lawful “clarification” occurred, and contends that reliance on an informal SMS to alter a mandatory tender requirement was irregular, non-transparent and incapable of curing non-responsiveness.
51. On the alleged illegality of the post-opening sms "clarification", the 2 nd interested party contends that the SMS sent at 1:56 p.m. (Thursday, 6 Nov) was not a lawful "clarification" under Section 81 of the Act.
52. According to the 2 nd interested party, Section 78(6) of the Act mandates that bid particulars, specifically tender security, must be read aloud and recorded contemporaneously to ensure transparency.
53. Further, that the Review Board is duty-bound under Section 28 of the Act to determine disputes involving breaches of statutory duty; thus, ignoring a blatant post-opening document alteration would have amounted to a jurisdictional failure by the Board to uphold the integrity of the procurement system.
54. It is further contended that any attempt to "correct" or substitute a mandatory document after the public opening is "shut" constitutes a fraudulent manoeuvre to "sneak in" compliant documents that were never part of the original public record.
55. The 2 nd interested party maintains that the Ex-Parte Applicant’s bid was non-responsive at the point of opening and could not be "resurrected" by informal, non-auditable text messages.
56. In response to the 1 st interested party’s affidavit sworn by Edward Irungu Mwangi, the 2 nd interested party deposes in contention, maintaining its position that the 1 st Interested Party’s Affidavit is an attempt to sanitize systemic procurement irregularities and to validate an unlawful evaluation.
57. Further, that the 1 st Interested Party introduced a mysterious bidder, "Amana," in their technical evaluation who was never recorded at the tender opening, further proving that the entire process was tainted with illegality.
58. Additionally, that the 1 st Interested Party’s claim of acting in "good faith" is belied by the fact that they ignored the immediate SMS objection which warned that changing documents post-opening was unacceptable.
59. On the correctness of the Review Board’s finding on illegality, the 2 nd interested party refers to its separately instituted proceedings challenging the scope of the Board’s remedy; but that in these proceedings it opposes the Ex-Parte Applicant’s attack on the Board’s jurisdiction and its finding that the procurement process was unlawful.
60. It maintains that the Ex-Parte Applicant is not entitled to the orders of Certiorari or Mandamus as it seeks seek to enforce an award founded on a fraudulent and procedurally flawed foundation.
61. On the merits of the judicial review orders sought, the 2 nd interested party asserts that Judicial Review is an equitable jurisdiction, and that the Ex-Parte Applicant, by seeking to benefit from a clandestine and unauthorized SMS 'clarification' that bypassed formal procurement channels, comes to this Court with unclean hands, thereby disentitling itself to the discretionary orders of Certiorari , Prohibition or Mandamus .
62. Further, that the prayer for Certiorari is misplaced as it seeks to quash a Board decision founded on clear evidence of procedural impropriety, including the 1 st Interested Party's admission of an unlawful post-opening alteration.
63. That an order of Prohibition cannot lie to stop the implementation of a decision that restored legality to a process where the 1 st Interested Party introduced a mysterious bidder, "Amana," who was never present at the tender opening.
64. That the prayer for Mandamus is a gross abuse of court process, as it seeks to compel the 1 st Interested Party to award a multi-million-shilling contract to a bidder who failed a mandatory preliminary requirement and whose bid was void ab initio .
65. That the Ex-Parte Applicant is not entitled to discretionary remedies from this Court as it comes with "unclean hands," having benefited from a fraudulent manoeuvre to alter their bid particulars mid-process.
66. The 2 nd interested party urges this court to dismiss the judicial review application for want for merit as it is an attempt to reinstate a procurement fraud.
The Exparte Applicant’s Further Affidavit
67. In the further affidavit sworn by the exparte applicant’s Managing Director, on 2 nd January, 2026, Mr. Stanley Gikandi reiterates the exparte applicant’s position and in response to the replying affidavits sworn by Philemon Kiprop for the Respondent and the Replying Affidavit of Vincent Osewe for the 2 nd interested party, Mr. Gikandi deposes that the respondent has mischaracterized the Applicant's Case in that contrary to the Respondent's assertion that the Notice of Motion and its supporting grounds were founded on a misapprehension of its decision, the Respondent rendered a decision that was irrational, unreasonable, unlawful and procedurally unfair, having failed to consider the totality of the evidence on record and the true factual position.
68. That the Respondent, without any lawful or reasonable justification, failed to consider the very documents forming the core of the dispute and the surrounding circumstances, notwithstanding that the same were plainly contained in the Applicant's Response to the Request for Review application, the bid document and were serialized, indexed and bound as part of the bid document submitted.
69. That in particular, the Respondent failed to examine and appreciate the distinction between the following two documents, namely: the Applicant's tender security dated 5th November 2025, appearing at page 43 (Item 12, pages 42-43 of the tender document), clearly addressed to the procuring entity, being the 2nd Respondent; and the SMEP Bank guarantee dated 6th March 2024 appearing at page 233, being a certified copy of a bank guarantee for Kshs. 3,000,000.00 deposited with the Insurance Regulatory Authority solely for regulatory licensing purposes.
70. That the two different documents served different purposes, and were expressly identified as such in the table of contents of the bid document, which both documents were also part of the requirements in the tender documents and that none was additional or outside the requirements of the tender documents.
71. Further, that had the Respondent examined the bid document as a whole, including serialization, the table of contents and documents themselves, it would not have reached the erroneous conclusion.
72. That instead, the Respondent placed undue reliance on the tender opening register and minutes, while declining to interrogate the contested documents themselves, thereby arriving at a conclusion that was not only factually incorrect but irrational and unreasonable.
73. That the Respondent's failure to take into account relevant, material and readily available evidence, while relying on incomplete secondary records, constituted a fundamental error of law and fact, thereby rendering the impugned decision amenable to this Honourable Court's supervisory jurisdiction by way of judicial review.
74. According to the exparte applicant, the Respondent failed to consider that, upon realizing an inadvertent error at the tender opening, the 1st Interested Party's tender opening committee took reasonable, transparent and proportionate steps to avert injustice to any tenderer by the tender opening committee recalling the representatives who had been present to clarify the error, and that upon learning that the representatives, including that of the Applicant and the 2nd Interested Party had already left the venue, promptly communicated through SMS to the telephone numbers supplied by bidders.
75. That the communication expressly clarified that the wrong document had been read out and that the correct tender security submitted by the Applicant was the Family Bank guarantee of Kshs. 6,900,000.00 contained at page 43 of the bid document.
76. That the Respondent failed to fairly consider the context, purpose and effect of the said communication and instead reduced the matter to procedural technicalities which did not address the substantive question of what documents were actually contained in the bid at the time of submission.
77. That the Respondent also failed to address the critical legal issue, namely, the effect of an inadvertent tender-opening error such as reading of the wrong tender security, bearing in mind that under Section 79 of the Public Procurement and Asset Disposal Act, no evaluation or determination of responsiveness is undertaken at the tender-opening stage.
78. That issues of responsiveness of a tender are reserved exclusively for the tender evaluation committee and not the tender opening committee.
79. That by treating a tender opening committee’s error as determinative legality of the whole tender process, and by disregarding both the correction and the documentary record, the Respondent acted capriciously and in total disregard of the law thereby usurping the statutory mandate of the tender evaluation committee.
80. That in so do
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