1. The Originating Motion herein, dated 31st July 2026, seeks 3 principal orders, and an alternative order. The principal orders are for certiorari, mandamus and declaration, with respect to a decision of the 1st respondent, in PPARB No. 98 of 2026, on tender number MMUST/834/0099/2024-2026. The alternative order sought is alternative to the principal mandamus order sought.
2. The background, given by the applicant, in its statutory statement and the verifying affidavit, sworn on 31st July 2026, by Mr. Samuel Seveni, is that the 2nd and 3rd respondents advertised a tender, number MMUST/834/0099/2025-2026, for provision of cleaning, sanitary grounds and landscaping services, with a closing date of 2nd June 2026. The applicant got interested, and presented a bid. On 17th June 2026, the 2nd and 3rd respondents awarded the tender to the interested party. The applicant was aggrieved, on the basis that the 2nd and 3rd respondents had failed to carry out financial evaluation of the subject tender, in accordance with section 80 of the Public Procurement and Asset Disposal Act, Cap. 412C, Laws of Kenya, by not taking into consideration their own documents, which if considered, the tender would not have been awarded to the 1st interested party.
3. Based on that, the applicant filed before the 1st respondent, a request for review, in PPARB No. 98 of 2026, which was heard and dismissed. The applicant faults the 1st respondent for not appreciating the provisions of the Public Procurement and Asset Disposal Act, particularly sections 75(4), and of breaching sections 5(1)(c) and 7(2)(f) of the Fair Administrative Action Act, Cap, 7C, Laws of Kenya.
4. The 1st respondent has reacted to the application, vide an affidavit sworn by Mr. Philemon Kiprop, its Secretary, on 14th August 2026. It is averred that the 1st respondent acted strictly within the confines of its statutory mandate, in arriving at its decision. It is asserted that the 1st respondent examined the tender document and the procurement records, and found that the applicant sought to rely on a document which had not been incorporated into the tender document, by way of an addendum, yet the 2nd and 3rd respondents could not evaluate the bids based on material outside of the tender document. It is contended that the 1st respondent evaluated the relevant material, and established that the tender was validly awarded to the successful bidder, the 1st interested party herein.
5. The 2nd and 3rd respondents have filed a notice of appointment of Advocates, dated 5th August 2026, but not a response to the application.
6. The 1st interested party has filed a replying affidavit, sworn on 11th August 2026, by Mr. Kennedy Mahama, its Chief Executive Officer. It concedes to having been party to the procurement process, as 1 of the bidders, and that it was declared the successful bidder. It is asserted that the activity on 26th May 2026 was meant to familiarise the parties with the scope of the work, and not to vary the terms of the tender document. It is asserted that the document, that the applicant relies on, titled “Transfer total to tender form,” does not give the number of stewards required to perform the task the subject of the tender, as that was left to the successful bidder, to determine, based on various considerations. It is also submitted that the reference to cleaning services and groundwork allocation was not part of the tender document, and the bid for the interested party was not successfully evaluated based on that.
7. It is averred that the applicant is challenging the award on the basis of the ability of the interested party to discharge its obligations, which argument the 1st respondent found unmerited. It is asserted that there was no amendment of the tender documents, and no evidence has been provided to establish any such amendment. It is also asserted that the 2nd and 3rd respondents had also denied having issued any document, which altered the terms of the tender document, and, in any case, the site visit of 26th May 2026 happened long after the applicant had submitted its bid. It is argued that section 75 of the Public Procurement and Asset Disposal Act is being overstretched, so far it refers to amendment or alteration of documents.
8. On the minimum wage issue, it is asserted that the interested party, just like the applicant, had given a written undertaking that it would adhere to the same. It is denied that the interested party had given an undertaking to deploy a minimum of 54 stewards to carry out the contract, for the interested party never disclosed the number of stewards it would deploy for the purposes of the contract.
9. It is averred that the applicant has filed a suit at the Kakamega Law Courts, in Kakamega MCCC No. E412 of 2026, where the parties are the deponent of the affidavit, in support of the instant application, Mr. Samuel Seveni, and the 2nd and 3rd respondents herein, which is on the tender herein, number MMUST/834/0099/2025-2026, for provision of cleaning, sanitary grounds and landscaping services, seeking orders to enable the applicant to continue the said services, pending the hearing and determination of PPARB No. 98 of 2026, and any appeal arising therefrom, and injunctive relief to bar the contracting of other parties, to provide the same services. An order was made in that matter, on 10th July 2026, to allow maintenance of status quo, whose effect is to enable the applicant to continue to provide the services in question. That matter is pending mention on 22nd September 2026. The applicant is accused of forum-shopping.
10. The 2nd interested party has not filed any documents in this matter.
11. The applicant has filed responses to the affidavits filed by the 1st respondent and the 1st interested party, vide 2 affidavits sworn, on 11th August 2026, by Mr. Seveni. In both affidavits it is reiterated that the 2nd and 3rd respondents issued a document on 26th May 2026, titled “Cleaning services and groundwork staff allocation,” and it is asserted that that document amounted to an addendum to the tender document. It is also argued that the said document was a clarification to guide bidders while filling the form titled “Transfer total to tender document,” which made reference to the number of stewards.
12. The matter was canvassed by way of written submissions.
13. The applicant has filed 2 sets of written submissions, dated 24th August 2026 and 3rd September 2026.
14. In the submissions of 24th August 2026, the applicant identifies only 1 issue for determination, as to whether the decision of the 1st respondent is tainted with illegality, irrationality and failed to consider the legitimate expectation of the applicant. The submissions turn around the document titled “Cleaning services and groundwork staff allocation,” which it is submitted, was an addendum to the tender document, and that the 1st respondent ought to have found that it was so. It is argued that the finding, that the said document was not an addendum, is an illegality, an irrationality, and it went against the legitimate expectation of the applicant. No case law has been cited
15. The written submissions, of 3rd September 2026, are supplementary to those of 24th August 2026, and they respond to those filed by the other parties, and I shall recite them after those by the other parties.
16. The 1st respondent has filed submissions dated 24th August 2026. It is submitted that judicial review proceedings are not about the merits of the decision itself, but the decision-making process leading up to the decision, as discussed in Republic vs. Public Procurement Administrative Review Board & 3 others ex-Parte Olive Telecommunications PVT Limited [2014] eKLR [2014] KEHC 2926 (KLR) and Pastoli vs. Kabale District Local Government Council & Others [2008] EA 300. It is asserted that the judicial review process is not an appeal from the decision of the 1st respondent, and the court, seized of the matter, cannot substitute its own views for those of the decision-maker.
17. Only 1 issue is identified for determination, and that is whether the decision of the 1st respondent, in PPARB No. 98 of 2026, is based on an illegality, irregularity, irrationality or unreasonableness, or breached legitimate expectation. It is submitted that there is no illegality, nor irrationality, nor procedural impropriety, nor breach of legitimate expectation demonstrated.
18. It is submitted that the staff allocation sheet, that the applicant relies on, was properly rejected by the 1st respondent, for it was never made part of the tender document, through an addendum, and the evaluation committee was bound to work on the basis of procedures and criteria expressly set out in the tender document, as required of it by section 80(2) of the Public Procurement and Asset Disposal Act. Based on section 75 of the Public Procurement and Asset Disposal Act, it is submitted that the applicant did not demonstrate that the staff allocation document, that it allegedly relied on, was distributed or issued uniformly to all the bidders. It is argued that the 1st respondent was not required to conduct a mathematical analysis to determine whether the bid by the 1st interested party could sustain the minimum wage compliance. Republic vs. Public Procurement Administrative Review Board & 3 others ex-Parte Olive Telecommunications PVT Limited [2014] eKLR [2014] KEHC 2926 (KLR) and PPARB Application No. 73 of 2025 Colnet Limited vs. Geothermal Development Corporation are cited.
19. The 2nd and 3rd respondents did not file written submissions.
20. The written submissions by the 1st interested party are dated 2nd September 2026, and turn on whether these judicial review proceedings are sub judice, and whether the impugned decision of the 1st respondent is illegal or irrational, or suffers from procedural impropriety. There is also the issue of costs. On sub judice, it is argued that there is another suit pending, in Kakamega MCCC No. E412 of 2026, on the same issues. Section 6 of the Civil Procedure Act, Cap. 21, Laws of Kenya, is cited, and Yator & another vs. Kenya Judicial Staff Association (KJSA) & another [2025] KEHC 1165 (KLR) is relied upon.
21. On the staff allocation document, it is submitted that the same was not an addendum, and it is argued that there is no evidence nor legal basis for the applicant to assert that the 1st respondent re-wrote the tender document. It is argued that an addendum is not issuable in the middle of a tendering process. It is submitted that it has not been demonstrated that there is an illegality or irrationality in the impugned decision, nor that it is tainted by procedural impropriety or violates legitimate expectation. It is argued that these judicial review proceedings are a disguised appeal.
22. Republic vs. Public Procurement Administrative Review Board; Accounting Officer, Kenya Electricity Generating Company & 2 others (Interested Parties); Pinro Empire Limited (Ex parte) [2024] KEHC 6634 (KLR), Jamari Enterprises Limited vs. Public Procurement Administrative Review Board & 2 others [2026] KECA 554 (KLR), Bennon Insurance Agency vs. Public Procurement Administrative Review Board & 2 others [2026] KEHC 6211 (KLR), Republic vs. County Government of Mombasa Ex Parte Outdoor Advertising Association of Kenya [2014] eKLR and Robert Gakuru & others vs. Governor Kiambu County & 3 others [2014] eKLR are cited in support.
23. The 2nd interested party did not file written submissions.
24. The supplementary submissions by the applicant, of 3rd September 2026, reiterate the arguments made earlier, by it, on the matter of the staff allocation document, asserting that that document, and the transfer total to transfer form, formed part of the tender document, according to section 75 of the Public Procurement and Asset Disposal Act, for it required disclosure of the number of staff or stewards required, which, in turn, had a bearing on the price quoted in the bids. It is submitted that the failure to consider the 2 documents as part of the tender document was a fundamental error. It is argued that the fact that the 2nd and 3rd respondents have not filed responses should be read to mean that the assertions by the applicant are not rebutted. On Kakamega MCCC No. E412 of 2026, it is argued that the same is not related to the instant judicial review process. Sections 55(1)(h) and 75 of the Public Procurement and Asset Disposal Act and Kimanthi vs. Attorney General & another [2025] KEHC 11098 (KLR) and Mohamed & another vs. Haidan [1972] EA 166, are cited
25. Having reviewed the filings herein, being the Originating Motion, the affidavits supporting it, the affidavits sworn against it, the annextures to the various affidavits, as well as the written submissions filed to argue the respective positions taken by the parties, my persuasion is that there is only 1 issue to be determined, and that is whether the applicant is entitled to the orders sought herein.
26. These are judicial review proceedings. Judicial review targets a decision or proceedings, with a view to either quash or prohibit it or them, and, in other cases, it seeks to compel performance of a public duty. What is sought herein are orders to compel and to quash. The decision targeted is that made on 21st July 2026, in proceedings conducted in PPARB No. 98 of 2026.
27. One of the issues, raised by the 1st respondent and the 1st interested party, is on the propriety of these proceedings, for it would appear, to them, that the application before me is a disguised appeal, in the name of a judicial review application. That would obliquely raise a jurisdiction issue. I should remind myself of the scope of my power and jurisdiction, and the limits of intervention by this court, in such proceedings as the instant one.
28. The fundamental distinction, between an appeal and judicial review, is that an appeal challenges the merits or correctness of the impugned decision of the court, while judicial review scrutinizes the lawfulness and fairness of the process used by an administrative body. Judicial review does not permit the court to re-evaluate evidence, re-assess factual findings or substitute its own view for that of a specialized statutory body, rather, it is concerned with the lawfulness, procedural propriety, rationality and compliance with constitutional and statutory mandates, as delineated in such decisions as Pastoli vs. Kabale District Local Government Council & Others [2008] EA 300.
29. In Republic vs. National Transport and Safety Authority & 2 Others; Kimathi (Ex parte) (2025) KEHC 6608 (KLR), it was stated, in that regard, that:
“It is trite that judicial review remedies are concerned with the decision-making process of administrative or public bodies rather than the merits of the decision itself. The scope of judicial review is thus limited to assessing whether an administrative or public body acted within its legal mandate, observed the rules of natural justice and adhered to statutory and constitutional procedures.”
30. By way of background, the 3rd respondent invited tenderers to submit bids for tender number MMUST/834/0099/2024-2026, for provision of cleaning, sanitary grounds and landscaping services. The tender was scheduled to close on 2nd June 2026. 3 entities, including the applicant and the 2 interested parties, placed bids. Upon preliminary evaluation, 2 bids were found to be responsive, those were that by the applicant and the 1st interested party, and were advanced to the next stage. At the technical evaluation, the 2 bids were also found to be responsive. At the financial evaluation, the 1st interested party was found to be the lowest evaluated responsive bidder, at Kshs. 12,004,087.59, and it was recommended that the award be made to it.
31. The applicant was aggrieved by that process, and filed a request for review, in PPARB No. 98 of 2026, seeking nullification of the award, a declaration that both the interested parties failed to meet the minimum wage requirement, a fresh review of the financial proposals be submitted by all the tenderers, and an award be made to the applicant. The alternative prayer was that the 1st respondent be ordered to re-evaluate the financial proposals of all the tenderers, and to thereafter make an award. The principal claim, by the applicant, was anchored on compliance with the minimum wage requirements, arguing that the successful bid, by the 1st interested party, was not capable of sustaining the minimum wage compliance.
32. The only issue, considered by the 1st respondent, in its determination, is whether the bid by the 1st interested party was properly evaluated, in view of the claim by the applicant, that had the 2nd and 3rd respondents properly evaluated the financial proposal against the mandatory minimum wage requirement, contained in the tender document, it would have been found that that bid was abnormally low, and incapable of lawful performance. The bone of contention was whether the tender document had prescribed a minimum number of employees to be deployed in the performance of the contract. The respondents and the interested parties argued that there was no such prescription, while the applicant argued that there was, based on a document allegedly supplied to it by the 2nd and 3rd respondents.
33. The 1st respondent, based on the requirements of section 80 of the Public Procurement and Asset Disposal Act, considers the tender document, and in particular the minimum wage requirement, contained in it, and concludes that the tender document did not require the bidders to demonstrate, through mathematical computations or financial modelling, that their quoted prices were capable of sustaining payment of the statutory minimum wage throughout the duration of the contract. It is noted that the responsibility of an evaluation committee is to determine whether a bidder had complied with the evaluation requirements, contained in the tender document, and not to prescribe how bidders ought to structure or price their commercial offers, so long as the requirements of the tender document had been satisfied. The 1st respondent is satisfied, in that determination, that the 1st interested party had complied with the requirements relating to the minimum wage compliance, as stipulated in the tender document.
34. On the contentious document, that was allegedly supplied to the applicant at the site visit on 26th May 2026, which allegedly set a minimum staffing requirement at 54 stewards or employees, and which the applicant contended was an addition to the tender document, and, therefore, constituting it an evaluation criterion, the 1st respondent finds that the same was never made part of the tender document, as no addendum was ever issued, in terms of section 75 of the Public Procurement and Asset Disposal Act, to make it part of the tender document, and there was nothing in the tender document which fixed a minimum number of employees to be employed in the execution of the contract, and the tender document did not require mathematical demonstration that the quoted prices were sustainable, as against the statutory minimum wage throughout the contract period.
35. The issue then is whether the way the 1st respondent has dealt with the issue is illegal, or irrational, or unreasonable, or procedurally improper or unfair. I am not persuaded, from the material before me, that it has been demonstrated that the 1st respondent has acted illegally or in excess of its jurisdiction, or that its decision is irrational or unreasonable, or the procedure adopted is procedurally unfair or improper, to warrant intervention by this court, in these proceedings.
36. The whole cause is built around the document that was allegedly issued on 26th May 2026. The 1st respondent has dealt with that issue. Tender documents are amended or altered in accordance with section 75 of the Public Procurement and Asset Disposal Act, by way of an addendum. No formal addendum was demonstrated to have had been issued in this case, and supplied to all the persons who had shown or expressed an interest in bidding. Without such a formal addendum, meeting the test set in section 75 of the Public Procurement and Asset Disposal Act, the alleged document, purportedly issued on 26th May 2026, could not pass for an addendum.
37. For avoidance of doubt, section 75 of the Public Procurement and Asset Disposal Act, in its entirety, provides as follows:
“75. Modifications to tender documents
(1)A procuring entity may amend the tender documents at any time before the deadline for submitting tenders by issuing an addendum without materially altering the substance of the original tender.
(2) An amendment may be made on the procuring entity's own initiative or in response to an inquiry by a candidate or tenderer.
(3)A procuring entity shall promptly provide a copy of the addendum to each person to whom the procuring entity provided copies of the tender documents.
(4) The addendum shall be deemed to be part of the tender documents.
(5) If the tender documents are amended when the time remaining before the deadline for submitting tenders is less than one third of the time allowed for the preparation of tenders, or the time remaining is less than the period indicated in instructions to tenderers, the accounting officer of a procuring entity shall extend the deadline as necessary to allow the amendment of the tender documents to be taken into account in the preparation or amendment of tenders.”
38. On the issue of legitimate expectation, the same is tied to the authenticity of the alleged addendum. As there was no such addendum, a legitimate expectation, founded on it, could not arise. In any event, a legitimate expectation is not available to only one party, in a situation, such as this, where there were several bidders. If there was a violation of legitimate expectation, then it would have to have been of all the 3 who participated in the tendering process.
39. The applicant is apparently ululating, on grounds that the 2nd and 3rd respondents have not filed responses in these proceedings, to react to its case, hence it should expect a walkover, as it were. These are judicial review proceedings, and not an appeal. In judicial review, the principal respondent would be the decision-maker, whose decision is impugned, in this case, the 1st respondent. In an appeal, the decision-maker would not be a respondent, for the proper respondents would be the parties benefitting from the impugned decision, that would be the 2nd and 3rd respondents herein and the 1st interested party. The focus here is on the impugned decision, with respect to how it was processed. Whether the 2nd and 3rd respondents actively participate in the judicial review proceedings would not, altogether, add any value to the proceedings, for the focus would not be on them, but on the decision-maker, the 1st respondent herein. The applicant gains no advantage, whatsoever, from the fact that the 2nd and 3rd respondents have not been active herein.
40. The issue of the pendency of Kakamega MCCC No. E412 of 2026 has come up, on the basis that there could be an element of sub judice, which ought to halt these proceedings, in favour of that in Kakamega MCCC No. E412 of 2026. I agree, the pendency of the said proceedings, in Kakamega MCCC No. E412 of 2026, are of consequence here, and, if there was good faith on the part of the applicant, should have been disclosed. The said suit was, no doubt, filed in abuse of court process, principally to muddy the waters.
41. I have seen the pleadings attached herein, relating to it. The applicant seeks, in them, extension of the previous contract, by the Magistrate Court, while similar proceedings were pending, in PPARB No. 98 of 2026, before the 1st respondent, between the same parties, over the same contract. Neither the Magistrate Court nor the High Court has power to extend a contract, by way of tender, awarded by a public entity, in the manner sought in Kakamega MCCC No. E412 of 2026. Upon expiry of such a contract, by effluxion of time, a fresh tendering process would have to be undertaken, which would be subject to the processes under the Public Procurement and Asset Disposal Act, and, should a dispute arise, from the fresh public procuring process, the same, according to the Public Procurement and Asset Disposal Act, ought to be entertained and determined by the 1st respondent.
42. A decision, made by the 1st respondent, on such a dispute relating to the tendering process, cannot be overridden by a decision of a Magistrate Court, for the Public Procurement and Asset Disposal Act prescribes a challenge only by way of judicial review at the High Court, and onwards to the Court of Appeal by way of appeal. There is no room, under the Public Procurement and Asset Disposal Act, for the Magistrate Court to intervene. Nothing, therefore, stops the High Court, in these proceedings, not even the pendency of Kakamega MCCC No. E412 of 2026, from intervening, by way of judicial review. This matter is properly before me, and nothing stands in the way of my making a determination on it.
43. The procurement process, the subject of these proceedings, was being undertaken by a public entity, and, therefore, it was a public procurement process. The law which governs public procurements is the Public Procurement and Asset Disposal Act, which was passed in 2015, and became effective in 2016, as part of a package of statutes enacted to give effect to provisions of the then new Constitution of Kenya, 2010. Its preamble defines it as, “An Act of Parliament to give effect to Article 227 of the Constitution; to provide procedures for efficient public procurement and for assets disposal by public entities; and for connected purposes.” This is the law which exclusively deals with procurement for goods and services by public entities. A public entity is defined in section 2 of the Public Procurement and Asset Disposal Act, to include “a public university within the meaning of the Universities Act (Cap. 210).” I trust that the 3rd respondent is a public university, within the meaning of the Universities Act.
44. Dispute resolution, with respect to the activities regulated by the Public Procurement and Asset Disposal Act, is provided for in Part XV of the Act. Section 27 of the Public Procurement and Asset Disposal Act establishes the 1st respondent, and section 28 sets out its functions and powers, which include “reviewing, hearing and determining tendering and asset disposal disputes.” Sections 167 to 174, of the Public Procurement and Asset Disposal Act, carry provisions on the procedures and powers of the 1st respondent, when discharging its function and mandate of “reviewing, hearing and determining tendering and asset disposal disputes.” Section 175(1) of the Public Procurement and Asset Disposal Act provides for judicial review by the High Court, of a decision of the 1st respondent; and section 175(4) of the Public Procurement and Asset Disposal Act provides for an appeal, to the Court of Appeal, from a decision of the High Court, on the judicial review.
45. The language of sections 167(1) and 174 of the Public Procurement and Asset Disposal Act is permissive. Section 167(1) provides that a party, aggrieved by the action or inaction of a procuring entity, such as the 3rd respondent herein, “may” seek administrative review with the 1st respondent; while section 174 states that, “The right to request a review under this Part is in addition to any other legal remedy a person may have.”
46. The door is not closed, therefore, to seeking other remedies, from the court directly, either under the Civil Procedure Act, the Constitution or the Fair Administrative Action Act, or any other dispute resolution means. However, since the dispute resolution mechanism, provided for under Part XV of the Act, is alternative, and dedicated to a particular area of specialisation, a party seeking to approach the court directly, and, therefore, side-stepping that mechanism, must contend with the doctrines of avoidance and exhaustion, as stipulated in section 9(2)(3) of the Fair Administrative Action Act, and as elaborated in such decisions as Speaker of National Assembly vs. Karume [1992] KLR 425.
47. Without saying more, a decision to file a suit at the Magistrate Court, relating to a public procurement matter, during the pendency of proceedings before the 1st respondent, in PPARB No. 98 of 2026, seeking the same orders as those sought in PPARB No. 98 of 2026, and without first exhausting the dispute resolution process, set out under Part XV of the Public Procurement and Asset Disposal Act, in particular section 175 thereof, can only be mischievous, and designed to pursue an improper motive and purpose, quite apart from seeking justice. I doubt that the sub judice rule was meant to apply in situations such as the instant one, where the court process is clearly being abused, for all these proceedings, in PPARB No. 98 of 2026, Kakamega MCCC No. E412 of 2026 and the instant judicial review proceedings are at the instance of the applicant.
48. Overall, I am not persuaded that the prayers sought, in the originating motion, dated 31st July 2026, are adequately substantiated or established, for the reasons given, and I find and hold that the said application has not reached the threshold for grant of the prayers sought. It has not been established that the 1st respondent has act illegally or in excess of its jurisdiction, or its decision is irrational or unreasonable, or it had adopted a procedure, in the lead up to the determination of the matter before it, which was unfair, or that the decision has breached the legitimate expectation of the applicant. I, hereby, therefore, disallow and dismiss the said application. Each party shall bear its
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2. The background, given by the applicant, in its statutory statement and the verifying affidavit, sworn on 31st July 2026, by Mr. Samuel Seveni, is that the 2nd and 3rd respondents advertised a tender, number MMUST/834/0099/2025-2026, for provision of cleaning, sanitary grounds and landscaping services, with a closing date of 2nd June 2026. The applicant got interested, and presented a bid. On 17th June 2026, the 2nd and 3rd respondents awarded the tender to the interested party. The applicant was aggrieved, on the basis that the 2nd and 3rd respondents had failed to carry out financial evaluation of the subject tender, in accordance with section 80 of the Public Procurement and Asset Disposal Act, Cap. 412C, Laws of Kenya, by not taking into consideration their own documents, which if considered, the tender would not have been awarded to the 1st interested party.
3. Based on that, the applicant filed before the 1st respondent, a request for review, in PPARB No. 98 of 2026, which was heard and dismissed. The applicant faults the 1st respondent for not appreciating the provisions of the Public Procurement and Asset Disposal Act, particularly sections 75(4), and of breaching sections 5(1)(c) and 7(2)(f) of the Fair Administrative Action Act, Cap, 7C, Laws of Kenya.
4. The 1st respondent has reacted to the application, vide an affidavit sworn by Mr. Philemon Kiprop, its Secretary, on 14th August 2026. It is averred that the 1st respondent acted strictly within the confines of its statutory mandate, in arriving at its decision. It is asserted that the 1st respondent examined the tender document and the procurement records, and found that the applicant sought to rely on a document which had not been incorporated into the tender document, by way of an addendum, yet the 2nd and 3rd respondents could not evaluate the bids based on material outside of the tender document. It is contended that the 1st respondent evaluated the relevant material, and established that the tender was validly awarded to the successful bidder, the 1st interested party herein.
5. The 2nd and 3rd respondents have filed a notice of appointment of Advocates, dated 5th August 2026, but not a response to the application.
6. The 1st interested party has filed a replying affidavit, sworn on 11th August 2026, by Mr. Kennedy Mahama, its Chief Executive Officer. It concedes to having been party to the procurement process, as 1 of the bidders, and that it was declared the successful bidder. It is asserted that the activity on 26th May 2026 was meant to familiarise the parties with the scope of the work, and not to vary the terms of the tender document. It is asserted that the document, that the applicant relies on, titled “Transfer total to tender form,” does not give the number of stewards required to perform the task the subject of the tender, as that was left to the successful bidder, to determine, based on various considerations. It is also submitted that the reference to cleaning services and groundwork allocation was not part of the tender document, and the bid for the interested party was not successfully evaluated based on that.
7. It is averred that the applicant is challenging the award on the basis of the ability of the interested party to discharge its obligations, which argument the 1st respondent found unmerited. It is asserted that there was no amendment of the tender documents, and no evidence has been provided to establish any such amendment. It is also asserted that the 2nd and 3rd respondents had also denied having issued any document, which altered the terms of the tender document, and, in any case, the site visit of 26th May 2026 happened long after the applicant had submitted its bid. It is argued that section 75 of the Public Procurement and Asset Disposal Act is being overstretched, so far it refers to amendment or alteration of documents.
8. On the minimum wage issue, it is asserted that the interested party, just like the applicant, had given a written undertaking that it would adhere to the same. It is denied that the interested party had given an undertaking to deploy a minimum of 54 stewards to carry out the contract, for the interested party never disclosed the number of stewards it would deploy for the purposes of the contract.
9. It is averred that the applicant has filed a suit at the Kakamega Law Courts, in Kakamega MCCC No. E412 of 2026, where the parties are the deponent of the affidavit, in support of the instant application, Mr. Samuel Seveni, and the 2nd and 3rd respondents herein, which is on the tender herein, number MMUST/834/0099/2025-2026, for provision of cleaning, sanitary grounds and landscaping services, seeking orders to enable the applicant to continue the said services, pending the hearing and determination of PPARB No. 98 of 2026, and any appeal arising therefrom, and injunctive relief to bar the contracting of other parties, to provide the same services. An order was made in that matter, on 10th July 2026, to allow maintenance of status quo, whose effect is to enable the applicant to continue to provide the services in question. That matter is pending mention on 22nd September 2026. The applicant is accused of forum-shopping.
10. The 2nd interested party has not filed any documents in this matter.
11. The applicant has filed responses to the affidavits filed by the 1st respondent and the 1st interested party, vide 2 affidavits sworn, on 11th August 2026, by Mr. Seveni. In both affidavits it is reiterated that the 2nd and 3rd respondents issued a document on 26th May 2026, titled “Cleaning services and groundwork staff allocation,” and it is asserted that that document amounted to an addendum to the tender document. It is also argued that the said document was a clarification to guide bidders while filling the form titled “Transfer total to tender document,” which made reference to the number of stewards.
12. The matter was canvassed by way of written submissions.
13. The applicant has filed 2 sets of written submissions, dated 24th August 2026 and 3rd September 2026.
14. In the submissions of 24th August 2026, the applicant identifies only 1 issue for determination, as to whether the decision of the 1st respondent is tainted with illegality, irrationality and failed to consider the legitimate expectation of the applicant. The submissions turn around the document titled “Cleaning services and groundwork staff allocation,” which it is submitted, was an addendum to the tender document, and that the 1st respondent ought to have found that it was so. It is argued that the finding, that the said document was not an addendum, is an illegality, an irrationality, and it went against the legitimate expectation of the applicant. No case law has been cited
15. The written submissions, of 3rd September 2026, are supplementary to those of 24th August 2026, and they respond to those filed by the other parties, and I shall recite them after those by the other parties.
16. The 1st respondent has filed submissions dated 24th August 2026. It is submitted that judicial review proceedings are not about the merits of the decision itself, but the decision-making process leading up to the decision, as discussed in Republic vs. Public Procurement Administrative Review Board & 3 others ex-Parte Olive Telecommunications PVT Limited [2014] eKLR [2014] KEHC 2926 (KLR) and Pastoli vs. Kabale District Local Government Council & Others [2008] EA 300. It is asserted that the judicial review process is not an appeal from the decision of the 1st respondent, and the court, seized of the matter, cannot substitute its own views for those of the decision-maker.
17. Only 1 issue is identified for determination, and that is whether the decision of the 1st respondent, in PPARB No. 98 of 2026, is based on an illegality, irregularity, irrationality or unreasonableness, or breached legitimate expectation. It is submitted that there is no illegality, nor irrationality, nor procedural impropriety, nor breach of legitimate expectation demonstrated.
18. It is submitted that the staff allocation sheet, that the applicant relies on, was properly rejected by the 1st respondent, for it was never made part of the tender document, through an addendum, and the evaluation committee was bound to work on the basis of procedures and criteria expressly set out in the tender document, as required of it by section 80(2) of the Public Procurement and Asset Disposal Act. Based on section 75 of the Public Procurement and Asset Disposal Act, it is submitted that the applicant did not demonstrate that the staff allocation document, that it allegedly relied on, was distributed or issued uniformly to all the bidders. It is argued that the 1st respondent was not required to conduct a mathematical analysis to determine whether the bid by the 1st interested party could sustain the minimum wage compliance. Republic vs. Public Procurement Administrative Review Board & 3 others ex-Parte Olive Telecommunications PVT Limited [2014] eKLR [2014] KEHC 2926 (KLR) and PPARB Application No. 73 of 2025 Colnet Limited vs. Geothermal Development Corporation are cited.
19. The 2nd and 3rd respondents did not file written submissions.
20. The written submissions by the 1st interested party are dated 2nd September 2026, and turn on whether these judicial review proceedings are sub judice, and whether the impugned decision of the 1st respondent is illegal or irrational, or suffers from procedural impropriety. There is also the issue of costs. On sub judice, it is argued that there is another suit pending, in Kakamega MCCC No. E412 of 2026, on the same issues. Section 6 of the Civil Procedure Act, Cap. 21, Laws of Kenya, is cited, and Yator & another vs. Kenya Judicial Staff Association (KJSA) & another [2025] KEHC 1165 (KLR) is relied upon.
21. On the staff allocation document, it is submitted that the same was not an addendum, and it is argued that there is no evidence nor legal basis for the applicant to assert that the 1st respondent re-wrote the tender document. It is argued that an addendum is not issuable in the middle of a tendering process. It is submitted that it has not been demonstrated that there is an illegality or irrationality in the impugned decision, nor that it is tainted by procedural impropriety or violates legitimate expectation. It is argued that these judicial review proceedings are a disguised appeal.
22. Republic vs. Public Procurement Administrative Review Board; Accounting Officer, Kenya Electricity Generating Company & 2 others (Interested Parties); Pinro Empire Limited (Ex parte) [2024] KEHC 6634 (KLR), Jamari Enterprises Limited vs. Public Procurement Administrative Review Board & 2 others [2026] KECA 554 (KLR), Bennon Insurance Agency vs. Public Procurement Administrative Review Board & 2 others [2026] KEHC 6211 (KLR), Republic vs. County Government of Mombasa Ex Parte Outdoor Advertising Association of Kenya [2014] eKLR and Robert Gakuru & others vs. Governor Kiambu County & 3 others [2014] eKLR are cited in support.
23. The 2nd interested party did not file written submissions.
24. The supplementary submissions by the applicant, of 3rd September 2026, reiterate the arguments made earlier, by it, on the matter of the staff allocation document, asserting that that document, and the transfer total to transfer form, formed part of the tender document, according to section 75 of the Public Procurement and Asset Disposal Act, for it required disclosure of the number of staff or stewards required, which, in turn, had a bearing on the price quoted in the bids. It is submitted that the failure to consider the 2 documents as part of the tender document was a fundamental error. It is argued that the fact that the 2nd and 3rd respondents have not filed responses should be read to mean that the assertions by the applicant are not rebutted. On Kakamega MCCC No. E412 of 2026, it is argued that the same is not related to the instant judicial review process. Sections 55(1)(h) and 75 of the Public Procurement and Asset Disposal Act and Kimanthi vs. Attorney General & another [2025] KEHC 11098 (KLR) and Mohamed & another vs. Haidan [1972] EA 166, are cited
25. Having reviewed the filings herein, being the Originating Motion, the affidavits supporting it, the affidavits sworn against it, the annextures to the various affidavits, as well as the written submissions filed to argue the respective positions taken by the parties, my persuasion is that there is only 1 issue to be determined, and that is whether the applicant is entitled to the orders sought herein.
26. These are judicial review proceedings. Judicial review targets a decision or proceedings, with a view to either quash or prohibit it or them, and, in other cases, it seeks to compel performance of a public duty. What is sought herein are orders to compel and to quash. The decision targeted is that made on 21st July 2026, in proceedings conducted in PPARB No. 98 of 2026.
27. One of the issues, raised by the 1st respondent and the 1st interested party, is on the propriety of these proceedings, for it would appear, to them, that the application before me is a disguised appeal, in the name of a judicial review application. That would obliquely raise a jurisdiction issue. I should remind myself of the scope of my power and jurisdiction, and the limits of intervention by this court, in such proceedings as the instant one.
28. The fundamental distinction, between an appeal and judicial review, is that an appeal challenges the merits or correctness of the impugned decision of the court, while judicial review scrutinizes the lawfulness and fairness of the process used by an administrative body. Judicial review does not permit the court to re-evaluate evidence, re-assess factual findings or substitute its own view for that of a specialized statutory body, rather, it is concerned with the lawfulness, procedural propriety, rationality and compliance with constitutional and statutory mandates, as delineated in such decisions as Pastoli vs. Kabale District Local Government Council & Others [2008] EA 300.
29. In Republic vs. National Transport and Safety Authority & 2 Others; Kimathi (Ex parte) (2025) KEHC 6608 (KLR), it was stated, in that regard, that:
“It is trite that judicial review remedies are concerned with the decision-making process of administrative or public bodies rather than the merits of the decision itself. The scope of judicial review is thus limited to assessing whether an administrative or public body acted within its legal mandate, observed the rules of natural justice and adhered to statutory and constitutional procedures.”
30. By way of background, the 3rd respondent invited tenderers to submit bids for tender number MMUST/834/0099/2024-2026, for provision of cleaning, sanitary grounds and landscaping services. The tender was scheduled to close on 2nd June 2026. 3 entities, including the applicant and the 2 interested parties, placed bids. Upon preliminary evaluation, 2 bids were found to be responsive, those were that by the applicant and the 1st interested party, and were advanced to the next stage. At the technical evaluation, the 2 bids were also found to be responsive. At the financial evaluation, the 1st interested party was found to be the lowest evaluated responsive bidder, at Kshs. 12,004,087.59, and it was recommended that the award be made to it.
31. The applicant was aggrieved by that process, and filed a request for review, in PPARB No. 98 of 2026, seeking nullification of the award, a declaration that both the interested parties failed to meet the minimum wage requirement, a fresh review of the financial proposals be submitted by all the tenderers, and an award be made to the applicant. The alternative prayer was that the 1st respondent be ordered to re-evaluate the financial proposals of all the tenderers, and to thereafter make an award. The principal claim, by the applicant, was anchored on compliance with the minimum wage requirements, arguing that the successful bid, by the 1st interested party, was not capable of sustaining the minimum wage compliance.
32. The only issue, considered by the 1st respondent, in its determination, is whether the bid by the 1st interested party was properly evaluated, in view of the claim by the applicant, that had the 2nd and 3rd respondents properly evaluated the financial proposal against the mandatory minimum wage requirement, contained in the tender document, it would have been found that that bid was abnormally low, and incapable of lawful performance. The bone of contention was whether the tender document had prescribed a minimum number of employees to be deployed in the performance of the contract. The respondents and the interested parties argued that there was no such prescription, while the applicant argued that there was, based on a document allegedly supplied to it by the 2nd and 3rd respondents.
33. The 1st respondent, based on the requirements of section 80 of the Public Procurement and Asset Disposal Act, considers the tender document, and in particular the minimum wage requirement, contained in it, and concludes that the tender document did not require the bidders to demonstrate, through mathematical computations or financial modelling, that their quoted prices were capable of sustaining payment of the statutory minimum wage throughout the duration of the contract. It is noted that the responsibility of an evaluation committee is to determine whether a bidder had complied with the evaluation requirements, contained in the tender document, and not to prescribe how bidders ought to structure or price their commercial offers, so long as the requirements of the tender document had been satisfied. The 1st respondent is satisfied, in that determination, that the 1st interested party had complied with the requirements relating to the minimum wage compliance, as stipulated in the tender document.
34. On the contentious document, that was allegedly supplied to the applicant at the site visit on 26th May 2026, which allegedly set a minimum staffing requirement at 54 stewards or employees, and which the applicant contended was an addition to the tender document, and, therefore, constituting it an evaluation criterion, the 1st respondent finds that the same was never made part of the tender document, as no addendum was ever issued, in terms of section 75 of the Public Procurement and Asset Disposal Act, to make it part of the tender document, and there was nothing in the tender document which fixed a minimum number of employees to be employed in the execution of the contract, and the tender document did not require mathematical demonstration that the quoted prices were sustainable, as against the statutory minimum wage throughout the contract period.
35. The issue then is whether the way the 1st respondent has dealt with the issue is illegal, or irrational, or unreasonable, or procedurally improper or unfair. I am not persuaded, from the material before me, that it has been demonstrated that the 1st respondent has acted illegally or in excess of its jurisdiction, or that its decision is irrational or unreasonable, or the procedure adopted is procedurally unfair or improper, to warrant intervention by this court, in these proceedings.
36. The whole cause is built around the document that was allegedly issued on 26th May 2026. The 1st respondent has dealt with that issue. Tender documents are amended or altered in accordance with section 75 of the Public Procurement and Asset Disposal Act, by way of an addendum. No formal addendum was demonstrated to have had been issued in this case, and supplied to all the persons who had shown or expressed an interest in bidding. Without such a formal addendum, meeting the test set in section 75 of the Public Procurement and Asset Disposal Act, the alleged document, purportedly issued on 26th May 2026, could not pass for an addendum.
37. For avoidance of doubt, section 75 of the Public Procurement and Asset Disposal Act, in its entirety, provides as follows:
“75. Modifications to tender documents
(1)A procuring entity may amend the tender documents at any time before the deadline for submitting tenders by issuing an addendum without materially altering the substance of the original tender.
(2) An amendment may be made on the procuring entity's own initiative or in response to an inquiry by a candidate or tenderer.
(3)A procuring entity shall promptly provide a copy of the addendum to each person to whom the procuring entity provided copies of the tender documents.
(4) The addendum shall be deemed to be part of the tender documents.
(5) If the tender documents are amended when the time remaining before the deadline for submitting tenders is less than one third of the time allowed for the preparation of tenders, or the time remaining is less than the period indicated in instructions to tenderers, the accounting officer of a procuring entity shall extend the deadline as necessary to allow the amendment of the tender documents to be taken into account in the preparation or amendment of tenders.”
38. On the issue of legitimate expectation, the same is tied to the authenticity of the alleged addendum. As there was no such addendum, a legitimate expectation, founded on it, could not arise. In any event, a legitimate expectation is not available to only one party, in a situation, such as this, where there were several bidders. If there was a violation of legitimate expectation, then it would have to have been of all the 3 who participated in the tendering process.
39. The applicant is apparently ululating, on grounds that the 2nd and 3rd respondents have not filed responses in these proceedings, to react to its case, hence it should expect a walkover, as it were. These are judicial review proceedings, and not an appeal. In judicial review, the principal respondent would be the decision-maker, whose decision is impugned, in this case, the 1st respondent. In an appeal, the decision-maker would not be a respondent, for the proper respondents would be the parties benefitting from the impugned decision, that would be the 2nd and 3rd respondents herein and the 1st interested party. The focus here is on the impugned decision, with respect to how it was processed. Whether the 2nd and 3rd respondents actively participate in the judicial review proceedings would not, altogether, add any value to the proceedings, for the focus would not be on them, but on the decision-maker, the 1st respondent herein. The applicant gains no advantage, whatsoever, from the fact that the 2nd and 3rd respondents have not been active herein.
40. The issue of the pendency of Kakamega MCCC No. E412 of 2026 has come up, on the basis that there could be an element of sub judice, which ought to halt these proceedings, in favour of that in Kakamega MCCC No. E412 of 2026. I agree, the pendency of the said proceedings, in Kakamega MCCC No. E412 of 2026, are of consequence here, and, if there was good faith on the part of the applicant, should have been disclosed. The said suit was, no doubt, filed in abuse of court process, principally to muddy the waters.
41. I have seen the pleadings attached herein, relating to it. The applicant seeks, in them, extension of the previous contract, by the Magistrate Court, while similar proceedings were pending, in PPARB No. 98 of 2026, before the 1st respondent, between the same parties, over the same contract. Neither the Magistrate Court nor the High Court has power to extend a contract, by way of tender, awarded by a public entity, in the manner sought in Kakamega MCCC No. E412 of 2026. Upon expiry of such a contract, by effluxion of time, a fresh tendering process would have to be undertaken, which would be subject to the processes under the Public Procurement and Asset Disposal Act, and, should a dispute arise, from the fresh public procuring process, the same, according to the Public Procurement and Asset Disposal Act, ought to be entertained and determined by the 1st respondent.
42. A decision, made by the 1st respondent, on such a dispute relating to the tendering process, cannot be overridden by a decision of a Magistrate Court, for the Public Procurement and Asset Disposal Act prescribes a challenge only by way of judicial review at the High Court, and onwards to the Court of Appeal by way of appeal. There is no room, under the Public Procurement and Asset Disposal Act, for the Magistrate Court to intervene. Nothing, therefore, stops the High Court, in these proceedings, not even the pendency of Kakamega MCCC No. E412 of 2026, from intervening, by way of judicial review. This matter is properly before me, and nothing stands in the way of my making a determination on it.
43. The procurement process, the subject of these proceedings, was being undertaken by a public entity, and, therefore, it was a public procurement process. The law which governs public procurements is the Public Procurement and Asset Disposal Act, which was passed in 2015, and became effective in 2016, as part of a package of statutes enacted to give effect to provisions of the then new Constitution of Kenya, 2010. Its preamble defines it as, “An Act of Parliament to give effect to Article 227 of the Constitution; to provide procedures for efficient public procurement and for assets disposal by public entities; and for connected purposes.” This is the law which exclusively deals with procurement for goods and services by public entities. A public entity is defined in section 2 of the Public Procurement and Asset Disposal Act, to include “a public university within the meaning of the Universities Act (Cap. 210).” I trust that the 3rd respondent is a public university, within the meaning of the Universities Act.
44. Dispute resolution, with respect to the activities regulated by the Public Procurement and Asset Disposal Act, is provided for in Part XV of the Act. Section 27 of the Public Procurement and Asset Disposal Act establishes the 1st respondent, and section 28 sets out its functions and powers, which include “reviewing, hearing and determining tendering and asset disposal disputes.” Sections 167 to 174, of the Public Procurement and Asset Disposal Act, carry provisions on the procedures and powers of the 1st respondent, when discharging its function and mandate of “reviewing, hearing and determining tendering and asset disposal disputes.” Section 175(1) of the Public Procurement and Asset Disposal Act provides for judicial review by the High Court, of a decision of the 1st respondent; and section 175(4) of the Public Procurement and Asset Disposal Act provides for an appeal, to the Court of Appeal, from a decision of the High Court, on the judicial review.
45. The language of sections 167(1) and 174 of the Public Procurement and Asset Disposal Act is permissive. Section 167(1) provides that a party, aggrieved by the action or inaction of a procuring entity, such as the 3rd respondent herein, “may” seek administrative review with the 1st respondent; while section 174 states that, “The right to request a review under this Part is in addition to any other legal remedy a person may have.”
46. The door is not closed, therefore, to seeking other remedies, from the court directly, either under the Civil Procedure Act, the Constitution or the Fair Administrative Action Act, or any other dispute resolution means. However, since the dispute resolution mechanism, provided for under Part XV of the Act, is alternative, and dedicated to a particular area of specialisation, a party seeking to approach the court directly, and, therefore, side-stepping that mechanism, must contend with the doctrines of avoidance and exhaustion, as stipulated in section 9(2)(3) of the Fair Administrative Action Act, and as elaborated in such decisions as Speaker of National Assembly vs. Karume [1992] KLR 425.
47. Without saying more, a decision to file a suit at the Magistrate Court, relating to a public procurement matter, during the pendency of proceedings before the 1st respondent, in PPARB No. 98 of 2026, seeking the same orders as those sought in PPARB No. 98 of 2026, and without first exhausting the dispute resolution process, set out under Part XV of the Public Procurement and Asset Disposal Act, in particular section 175 thereof, can only be mischievous, and designed to pursue an improper motive and purpose, quite apart from seeking justice. I doubt that the sub judice rule was meant to apply in situations such as the instant one, where the court process is clearly being abused, for all these proceedings, in PPARB No. 98 of 2026, Kakamega MCCC No. E412 of 2026 and the instant judicial review proceedings are at the instance of the applicant.
48. Overall, I am not persuaded that the prayers sought, in the originating motion, dated 31st July 2026, are adequately substantiated or established, for the reasons given, and I find and hold that the said application has not reached the threshold for grant of the prayers sought. It has not been established that the 1st respondent has act illegally or in excess of its jurisdiction, or its decision is irrational or unreasonable, or it had adopted a procedure, in the lead up to the determination of the matter before it, which was unfair, or that the decision has breached the legitimate expectation of the applicant. I, hereby, therefore, disallow and dismiss the said application. Each party shall bear its
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