THE REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
JUDICIAL REVIEW DIVISION
JUDICIAL REVIEW APPLICATION NO. E406 OF 2025
REPUBLIC…………………………………………………………APPLICANT VERSUS
PUBLIC PROCUREMENT ADMINISTRATIVE
REVIEW BOARD………………………………………………..RESPONDENT THE ACCOUNTING OFFICER, KENYA POWER & LIGHTING COMPANY PLC…………………………………….1 ST INTERESTED PARTY KENYA POWER & LIGHTING COMPANY
PLC…………………………………………………...2 ND INTERESTED PARTY
AND
JAMARI ENTERPRISES LIMITED………………..EX PARTE APPLICANT
JUDGMENT
1. The Exparte Applicant Jamari Enterprises Limited filed Notice of Motion dated 16 th December 2025 on the same date, supported by the affidavit sworn by John Muigai Kamau on 15 th December 2025. The Application seeks the following orders:
1. An order of certiorari directed at the Respondent quashing the decision dated 3 rd December 2025 in Application No. 107 of 2025, dismissing the Applicant’s Request for Review concerning Tender for the Provision of Roads/Pavement Opening/Cutting, Ducting and Reinstatement Services Tender No. KP1/9A.2/OT/003/NM/25-26, (hereinafter referred to as the “Tender”).
2. An order of mandamus directed at the 1 st and 2 nd Interested Parties, compelling them to forthwith terminate the current process for Tender for the Provision of Roads/Pavement Opening/Cutting, Ducting and Reinstatement Services Tender No. KP1/9A.2/OT/003/NM/25-26, (hereinafter referred to as the “Tender”) and re advertise the tender in strict compliance with the letter and spirit of Article 227 of the Constitution of Kenya and the Public Procurement and Asset Disposal Act, 2015 (PPADA), specifically by:
a) Allowing a reasonable and sufficient period for the preparation and submission of tenders at least 60 days.
b) Deleting all clauses that rely on undisclosed or subjective criteria, particularly the unpublished "powerline construction services cost handbook" and clauses 39-42 granting unfettered discretion to determine "abnormally low/high" or "unbalanced" tenders.
3. An order of prohibition directed at the 1 st and 2 nd Interested Parties, prohibiting them from proceeding in any manner whatsoever with Tender for the Provision of Roads/Pavement Opening/Cutting, Ducting and Reinstatement Services Tender No. KP1/9A.2/OT/003/NM/25-26, (hereinafter referred to as the “Tender”) or from awarding the said tender based on the flawed tender documents.
4. Such other, further order and/or incidental orders or directions as this Honorable Court shall deem just and expedient.
5. The costs of this application to provide for.
2. From the exparte applicant’s perspective, the circumstances giving rise to these proceedings are that, on or about 29 th October 2025, the 2 nd Interested Party Kenya Power & Lighting Company PLC, which is the procuring entity, published an Invitation To Tender (ITT) for the Provision of Roads/Pavement Opening/Cutting, Ducting and Reinstatement Services (Tender No. KP1/9A.2/OT/003/NM/25-26). The Applicant is said to have downloaded the tender document on or about 3 rd November 2025 from the Procuring Entity’s e-procurement portal, with the bid submission initially scheduled to close on 20 th November 2025 at 10.00 a.m.
3. The Exparte applicant avers that upon downloading the tender document, it noted that the said tender document suffered from fundamental flaws ab initio. First, that it allowed only approximately twenty (20) days for the preparation and submission of bids, which time, according to the Applicant, was manifestly inadequate for a works contract of substantial value, scope, and complexity. Secondly, that the Tender Document contained provisions contrary to the law, including reliance on an undisclosed and unpublished benchmark (the "powerline construction services cost handbook") for financial evaluation; and subjective clauses (Clauses 39 to 42) which is said to have granted the procuring entity unfettered discretion, thus rendering the procurement process susceptible to manipulation, thereby undermining the principles of fairness and objectivity required by the law.
4. Aggrieved by what it had observed concerning the tender document, the exparte applicant filed a Request for Review Application No. 107 of 2025 before the Respondent, Public Procurement Administrative Review Board (the Review Board) on 12 th November 2025, challenging these alleged illegalities as being in breach of Section 80 of the Public Procurement and Asset Disposal Act, 2015 and Article 227 of the Constitution.
5. The Applicant contends that the Respondent did not take into consideration all material information filed before it before dismissing the applicant’s request for review on 3 rd December 2025, holding that a determination of the alleged illegality of the tender clauses was "premature" because the tender submission deadline had not yet lapsed. The Applicant contends that the dismissal of its request for review was a fundamental error of law.
6. The Respondent is said to have in its final orders, given a mandatory direction to the Interested Parties to proceed with the procurement process, thereby sanctioning the continuation of a procurement process based on a document that was fundamentally unlawful.
7. It is the Applicant’s further case that dismissing the request for review on grounds of prematurity constitutes an abdication of the Respondent’s statutory duty under Section 173 of the Act (PPADA) and undermines the principles of fairness transparency and competitiveness in public procurement, as espoused in Articles 10 and 227 of the Constitution.
8. The Applicant further contends that the Review Board's decision is vitiated by multiple errors of law, that it fails to address the use of undisclosed evaluation criteria thereby violating Section 80(2) of the Act and allowing subjective clauses that negate the requirement for objective evaluation standards.
9. The Applicant claims that it had a legitimate expectation, arising from the Constitution and the express provisions of the Act, that its right to a fair administrative action under Article 47 would be protected by the Respondent. However, that this expectation has been violated by the Review Board's impugned decision to ignore patent illegalities in the Tender Document.
10. The Applicant contends that the Respondent erred in finding that bidders had approximately seventeen (17) days to prepare and submit tenders, and that the Interested Parties, allegedly in violation of the mandatory stay and the fourteen (14) day standstill period under Section 175(1) of the Public Procurement and Asset Disposal Act (PPADA), unilaterally issued an Addendum dated 9 th December 2025 setting a revised submission deadline of 18 th December 2025, whereas the earliest lawful date would have been 5 th January 2026.
11. The Applicant avers that the short tender period contravenes Sections 58 and 70(3) of the PPADA and Article 227(1) of the Constitution by denying bidders sufficient time and information to ensure fairness, equity, transparency, competitiveness and cost-effectiveness, is irrational and unnecessary, given that the existing contract for similar works had been extended to 2 nd April 2026.
12. Further, the Applicant challenges Clauses 39 and 40 of the Instructions to Tenderers, which clauses permit rejection of “abnormally low” or “abnormally high” tenders, claiming that the clauses confer unfettered and subjective discretion contrary to Section 80 of the PPADA and Article 227 of the Constitution.
13. According to the applicant, the financial evaluation criteria under Part III, particularly sub-clauses (e) and (f), are irregular and unlawful for relying on an undisclosed “published powerline construction services cost handbook,” in breach of Sections 70(3) and 80(2) of the PPADA and for imposing arbitrary thresholds of 25% above or below an unpublished benchmark, contrary to Article 227(1) and Section 3 of the PPADA.
14. The Applicant further asserts that Clause 41 on “Unbalanced and/or Front-Loaded Tenders” is defective for granting Kenya Power excessive discretion based on its “opinion,” lacking objective or quantifiable criteria, and for allowing an arbitrary increase of performance security up to 30% of the contract price, contrary to Sections 3 and 80(3) of the PPADA and Article 47 of the Constitution.
15. The Applicant also impugns Clause 42 on “ Qualifications of the Tenderer” as being ambiguous and procedurally unfair, particularly Clause 42.1 for permitting subjective determinations “to its satisfaction” contrary to Section 80(2) of the PPADA; Clause 42.2 for excluding consideration of subsidiaries, parent companies, and affiliates, thereby discriminating against joint ventures in violation of Section 3 of the PPADA and Article 227; Clause 42.3 for authorizing disqualification without objective and verifiable evaluation; and Clauses 42.4 to 42.6 for duplicating the defective “abnormally low tender” provisions without objective benchmarks.
16. The Applicant maintains that the Interested Parties breached their statutory duties under the PPADA and the 2020 Regulations by failing to promote fair competition and equitable treatment, rendering the process discriminatory and contrary to Articles 10, 47, 227, and 232 of the Constitution and Section 3 of the Act. It is asserted that the procurement proceedings were unlawful and that the tender outcome is a nullity. The Applicant claims prejudice and loss, including denial of a fair opportunity to compete due to the short submission period, loss of legitimate expectation and potential profits arising from subjective evaluation provisions, loss of business prospects and competitiveness contrary to Sections 58, 70(3), and 80 of the PPADA and financial loss from expenses incurred in tender preparation. The Applicant concludes that these breaches undermine the integrity, transparency, accountability, and public confidence in the procurement process.
17. The Applicant also filed written submissions dated 24 th December 2025. I will combine the applicant’s case with its submissions.
18. It is submitted in reiteration of the facts that the Respondent’s decision dated 3 rd December, 2025 did not adhere to the principles set out in Article 47 of the Constitution and that therefore, the impugned decision by the Respondent was irrational and unreasonable. Reliance is placed on Section 7(2)(k) of the Fair Administrative Actions Act, 2015, which is said to provide that a court may review an administrative action or decision if it is irrational or unreasonable.
19. The Applicant relies on the cases of Republic v Public Procurement Administrative Review Board & 2 others Ex-Parte Pelt Security Services Limited [2018] eKLR, Republic v Public Procurement Administrative Review Board & 2 others Ex Parte - Sanitam Services (E.A) Limited [2013] eKLR and Republic v Public Procurement Administrative Review Board ex parte Trippex Construction Company Limited & another, JR No. 605 of 2015 to support this argument.
20. On the three grounds upon which administrative action is subject to control by judicial review, that is, illegality, irrationality and procedural impropriety, the Applicant relies on the case of Republic v Public Procurement Administrative Review Board & Another Ex Parte Gibb Africa Ltd & Another [2012] eKLR .
21. The Applicant submits that the Respondent acted irrationally and unreasonably by holding that a challenge to the legality of the procurement document itself was premature pursuant to paragraph 136 of the impugned decision dated 3 rd December 2025. That the Respondent's decision effectively means that a bidder must proceed with an illegal, unconstitutional, and time-consuming process before challenging the foundation of that process, which is an absurd outcome that contradicts the spirit of the PPADA and Constitutional principles of public procurement.
22. The Applicant submits that the Respondent acted unreasonably and in breach of Section 80(2) and (3) of the Public Procurement and Asset Disposal Act and Article 227 of the Constitution by refusing to condemn the Procuring Entity’s reliance on undisclosed criteria, namely the “Powerline Construction Services Cost Handbook,” and by upholding Clauses 39–42, which confer unfettered and subjective discretion on the procuring entity. It is submitted in contention that no reasonable public body could lawfully include or sustain such arbitrary provisions, and that the Respondent’s failure to strike them down was Wednesbury unreasonable.
23. The Applicant further argues that the Interested Parties’ claim that the handbook was accessible on their website is untenable, as the tender documents contained no reference, link, or direction to any external source. The Respondent is also faulted for declining to correct these illegalities at an early stage, thereby allowing a flawed process to proceed in a manner contrary to the public interest and resulting in a waste of public resources.
24. Additionally, the Applicant contends that the Respondent unreasonably failed to address the manifestly inadequate bidding timeframe for a complex works contract, which is said to be arbitrary and discriminatory and in contravention of Section 58 of the PPADA. It is also submitted that the Respondent erred in law and failed to exercise its jurisdiction under Section 173 of the PPADA by dismissing the Request for Review foe allegedly being “premature” on the ground that the tender submission deadline had not lapsed.
25. The Applicant relies on the case of JGH Marine A/S Western Marine Services Ltd CNPC Northeast Refining & Chemical Engineering Co. Ltd/Pride Enterprises v Public Procurement Administrative Review Board & 2 others [2015] eKLR where the Court is said to have rendered itself on what amounts to an error of law.
26. It is also the Applicant’s submission that Section 4(3) of the Fair Administrative Action Act requires that, where an administrative action is likely to adversely affect a person’s rights, the administrator shall provide: (a) Prior and adequate notice of the nature and reasons for the proposed action, (b) An opportunity to be heard or make representations and (c) Information, materials and evidence to be relied upon in making the decision.
27. The Applicant further relies on the case Republic v Judiciary & 2 others; Waaso Construction Limited (Ex parte) [2025] KEHC 10847 (KLR) where the Court is said to have outlined the grounds upon which judicial review orders may be granted as laid out in Pastoli v Kabale District Local Government Council & Others [2008] 2 EA 300 .
28. The Applicant submits that the Respondent’s decision denied it an effective and timely administrative remedy under Article 47 of the Constitution and the Fair Administrative Action Act by compelling its participation in a tender process governed by allegedly unlawful rules, thereby rendering the review process illusory. The Respondent is further faulted for sanctioning a procedurally unfair process by failing to address the inadequate bidding period and the use of undisclosed evaluation criteria, contrary to the requirements of fair administrative action. The Applicant contends that the decision violated the applicant’s legitimate expectation that public authorities would act consistently, transparently and in accordance with declared policies and procedures.
29. On the principles of legitimate expectation, the Applicant relies on the cases of Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR , Republic v Kenya School of Law; Ng’ang’a (Exparte Applicant) [2025] KEHC 4965 (KLR) and Republic v Principle Secretary, Ministry of Transport, Housing and Urban Development Ex parte Soweto Residents Forum CBO [2019] eKLR .
30. The Applicant submits that it had a legitimate expectation that the procurement process would be conducted lawfully and in accordance with the principles of fairness, transparency, equity and objectivity; that upon invoking Section 173 of the PPADA, the Respondent would substantively determine the legality of the tender rather than dismiss the Request for Review as “premature”; that a reasonable and sufficient period would be allowed for the preparation and submission of a complex works contract; and that the mandatory fourteen (14) days standstill period under Section 175(1) of the PPADA would be respected to allow recourse to the High Court.
31. The Applicant further contends that, arising from Article 47 of the Constitution and Section 4 of the Fair Administrative Action Act, the Respondent had a duty to protect it’s the applicant’s rights by addressing patent illegalities, which duty was allegedly breached by the Respondent’s irrational dismissal of the Request for Review Application.
The Respondent’s case
32. Opposing the application, the Respondent filed a replying affidavit sworn on 22 nd December 2025 by Philemon Kiprop, the Secretary of the Public Procurement Administrative Review Board.
33. According to the Respondent, the applicant’s application subject of this judgment is an appeal against the Respondent’s Decision and is being disguised as a judicial review application and that therefore, this Court should decline to allow the prayers sought for want of jurisdiction.
34. The Respondent relies on the case of Kenya Pipeline Company Limited v Hyosung Ebara Company Limited & 2 Others [2012] KECA 104 (KLR) where the Court is said to have held that the Respondent is a specialized statutory tribunal established to deal with all complaints of breach of duty by a procuring entity and that it is conferred with wide powers and as such that its jurisdiction should not be lightly interfered with.
35. The Ex parte Applicant is said to have on on 12 th November 2025 filed Review Application No. 107 of 2025 dated 11 th November 2025 and on 3 rd December 2025, the Respondent rendered its decision dismissing the Request for Review and directing for the procurement proceedings to procced.
36. That the Respondent in reaching its Decision considered each of the parties’ cases, documents, pleadings, oral and written submissions, list and bundle of authorities together with confidential documents submitted to it pursuant to Section 67(3)(e) of the Act. That in reaching its decision, the Respondent is said to have found that there were four issues for determination and these were; Whether it had jurisdiction to hear and determine the Request for Review, whether the time provided for submission of tender documents in the subject tender was reasonable and sufficient, whether the provisions of the Tender Document in the subject tender are in breach of the Constitution, the Act and Regulations 2020, and what orders ought to have been grant in the circumstances.
37. On the first issue it is asserted that as can be seen at paragraphs 58 to 86 of its Decision it took cognizance of the provisions under Section 167(1) of the Act and various holdings by the Superior Courts and found that the Applicant had the locus standi to seek an administrative review before it in the subject tender. That the Applicant had sufficiently pleaded the loss it risked to suffer as a result of the alleged breach of duty imposed on the procuring entity by the Act, and that it was a candidate within the meaning of Section 2 and 167(1) of the Act. Thus, the Respondent is said to have established that it had jurisdiction to hear and determine Request for Review No. 107 of 2025.
38. On the second issue of whether the time provided for submission of tender documents in the subject tender was reasonable and sufficient as seen at paragraphs 87 to 97 of its Decision, the Respondent is said to have taken note of the provisions under ITT 3.6 of Section II – Tender Data Sheet (TDS) at page 28 of 146 of the Tender Document establishing that the subject tender was restricted to only local limited companies thus governed by Section 102(2) of the Act as read with Regulation 89(7) of Regulations 2020 which provides the minimum time for preparation of tenders to be 7 days.
39. The Respondent is also said to have taken note of the fact that the subject tender had been advertised on 29 th October 2025 and was initially set to close on 20 th November 2025 giving bidders 22 days to prepare and submit their bids. That the Respondent also took further note of the addenda issued in the subject tender and specifically Addendum No. 2 dated 12 th November 2025 which extended the tender submission deadline to 28 th November 2025 which now meant that bidders had a total 30 days from 29 th October 2025 to 28 th November 2025 to prepare and submit their bids.
40. According to the Respondent, in addition, it noted that ITT 8.2 of Section II – Tender Data Sheet (TDS) at page 28 of 146 of the Tender Document informed eligible bidders that they could ask questions in writing which were required to reach the 2 nd Interested Party not later than 7 days prior to the tender closing date and that as such, the Applicant had an avenue to seek for an extension of the tender submission deadline in the event that it was unable to conclude its preparation and submission of its bid documents within the stipulated timelines.
41. It is further contended that as seen at paragraph 96 of its Decision, the Respondent pointed out that it had not sighted any request for an extension of the tender submission deadline nor any clarification sought by the Applicant and that it was therefore disingenuous for a candidate to complain about sufficiency of time before demonstrating that it had done everything in its power to comply with the provided time but was unable to due to certain justifiable reasons, such as insufficiency of information in the tendering process.
42. That owing to this situation, the Respondent found that the time provided for submission of tender documents in the subject tender was reasonable and sufficient noting that bidders had 17 more days to prepare and submit their bids before the lapse of the tender submission deadline as seen at paragraph 94 of the Respondent’s Decision.
43. The Respondent further contended that in so holding, it took into account the fact that upon the applicant filing of Request for Review No. 107 of 2025 on 12 th November 2025, time stopped running in line with Section 168 of the Act and that by then, 13 days had been expended and bidders therefore had 17 more days to prepare and submit bids before lapse of the submission deadline once time started running after the Respondent had rendered its Decision.
44. Additionally, the Respondent contended that on the third issue, on whether the provisions of the Tender Documents in the subject tender were in breach of the Constitution, the Act and Regulations 2020, the Respondent took cognizance of the provisions of Article 227 of the Constitution, Sections 3, 58, 60, 70 and 80 of the Act as read with Regulation 68 of Regulations 2020, with regard to the mandate placed on an accounting officer of a procuring entity with regard to preparation of the tender documents, laying out the specifications and the evaluation criterion in addition to ensuring that sufficient information is provided to allow fair competition among prospective bidders.
45. Further, the Respondent is said to have taken note of reference to the published powerline construction services cost handbook referred to at Clause 3.4 of Part III – Criteria at page 37 of 146 of the Tender Document; reference to abnormally low tenders and abnormally high tenders as provided under ITT 39 and 40 of Section I: Instructions to Tenderers at page 23 of 146 to 24 of 126 of the Tender Document; reference to the tender evaluated as the lowest evaluated price as provided under Clause 41 of Section I: Instructions to Tenderers at 24 of 126 of the Tender Document; and reference to qualification of the eligible tenderer selected as having submitted the lowest evaluated and substantially responsive tender as provided under Clause 42 of Section I: and Instructions to Tenderers of the Tender Document.
46. That having had the benefit of perusing the Standard Tender Document for Procurement of Works (Roads, Water Bridges etc.) issued by the Public Procurement Regulatory Authority on 22 nd April 2021 and updated on 21 st April 2022 it noted that the impugned clauses had been lifted in verbatim in the subject tender’s Tender Document save for (i) change of reference of the procuring entity to read Kenya Power, and (ii) increase of the total amount of the Performance Security to 30% of the Contract Price as compared to the 10% of the Contract Price set out in the Standard Tender Document.
47. The Respondent is said to have further noted that pursuant to Clause 7 of the Preface of the Standard Tender Document, while the Standard Tender Document is to be customized to suit the needs of a procuring entity, no changes ought to be made to the Instructions to Tenderers (ITT) and the General Conditions of Contract (GCC) as the two sections are modified under the Tender Data Sheet (TDS) to suit the requirements of a procuring entity.
48. That in view of the foregoing, the Respondent proceeded to draw the attention of the 1 st Interested Party to its responsibility to provide sufficient information in the subject tender, that is objective and quantifiable to enable the Evaluation Committee to evaluate bids submitted in the subject tender as envisioned under the Constitution and the Act noting that should a criterion emerge to be ambiguous in the course of evaluation, then the doctrine of contra Proferentem in Interpretation of Contracts would apply.
49. The Respondent is said to have further found that the 1 st Interested Party would shoulder the responsibility of addressing any contest that may have been raised on applicability of an extraneous or ambiguous clause in the subject tender before the Respondent, and that it would be prudent to arrest such issues by way of clarifications before the subject tender submission deadline lapsed.
50. The Respondent further asserted that it also established that it would be premature to determine whether the provisions of the Tender Document in the subject tender were in breach of the Constitution, the Act and Regulations 2020 since the tender submission deadline was yet to lapse and the 2 nd Interested Party still had adequate time to address any clarifications or issues that could be raised by prospective bidders with regard to the subject tender.
51. The Respondent maintains that its Decision dated 3 rd December 2025 in Request for Review No. 107 of 2025 was lawful, reasonable, rational, and procedurally fair, having considered all issues raised and acted within the Constitution, the Public Procurement and Asset Disposal Act, the 2020 Regulations, the Fair Administrative Action Act and Article 227 of the Constitution.
52. It is asserted that the Respondent neither exceeded its mandate nor acted unlawfully, and that the Ex parte Applicant has failed to establish illegality, error of law, irrationality, procedural unfairness, bad faith, abuse of process, or any breach of legitimate process.
53. The Respondent therefore seeks dismissal of the Notice of Motion with costs, but, that in the alternative, urges that if the application is allowed, costs be disallowed pursuant to Section 175(7) of the Act.
54. The Respondent also filed written submissions dated 29 th December 2025 to support its decision and contentions in deposition.
55. The Respondent submits that the Review Board’s finding that a substantive challenge to the tender clauses was “premature” was a rational exercise of discretion, as the procurement was still at a preliminary stage, no bids had been submitted or evaluated and the Review Board’s jurisdiction under Section 167 of the PPADA is triggered by actual or imminent loss.
56. According to the Review Board, bidders had mechanisms under the tender documents, including ITT 8.2, to seek clarifications or extensions, which mechanisms the Applicant did not utilize, and that in any event, time had been suspended under Section 168 of the Act, upon the applicant filing the Request for Review, leaving bidders with adequate time to prepare bids for submission.
57. The Review Board further contended that the Review Board properly exercised its powers under Section 173 of the PPADA by assuming jurisdiction, hearing the parties and issuing a reasoned merits-based decision rather than declining jurisdiction, and by invoking the contra proferentem principle to direct that any ambiguity in the tender documents be interpreted against the Procuring Entity as a safeguard for fairness.
58. The Review Board also noted that issues such as the alleged accessibility of the “powerline construction services cost handbook” which handbook the 2 nd Respondent had indicated was published and accessible on its website could be clarified during the bidding process and that annulling the tender at a pre-submission stage would have been disproportionate.
59. The Respondent maintains that the Review Board correctly observed that the tender was restricted to local limited liability companies under ITT 3.6 of the Tender Data Sheet and as such it applied the statutory framework, including the minimum seven-day preparation period for restricted tenders under Section 102(2) of the PPADA and Regulation 89(7) of the 2020 Regulations , finding that a total of thirty (30) days had been provided and that the proceedings complied with the Fair Administrative Action Act through notice, hearing and consideration of submissions.
60. It is therefore contended that the Applicant’s claims of violated legitimate expectations are unfounded, that any alleged post-decision breach of Section 175(1) would be a
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IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
JUDICIAL REVIEW DIVISION
JUDICIAL REVIEW APPLICATION NO. E406 OF 2025
REPUBLIC…………………………………………………………APPLICANT VERSUS
PUBLIC PROCUREMENT ADMINISTRATIVE
REVIEW BOARD………………………………………………..RESPONDENT THE ACCOUNTING OFFICER, KENYA POWER & LIGHTING COMPANY PLC…………………………………….1 ST INTERESTED PARTY KENYA POWER & LIGHTING COMPANY
PLC…………………………………………………...2 ND INTERESTED PARTY
AND
JAMARI ENTERPRISES LIMITED………………..EX PARTE APPLICANT
JUDGMENT
1. The Exparte Applicant Jamari Enterprises Limited filed Notice of Motion dated 16 th December 2025 on the same date, supported by the affidavit sworn by John Muigai Kamau on 15 th December 2025. The Application seeks the following orders:
1. An order of certiorari directed at the Respondent quashing the decision dated 3 rd December 2025 in Application No. 107 of 2025, dismissing the Applicant’s Request for Review concerning Tender for the Provision of Roads/Pavement Opening/Cutting, Ducting and Reinstatement Services Tender No. KP1/9A.2/OT/003/NM/25-26, (hereinafter referred to as the “Tender”).
2. An order of mandamus directed at the 1 st and 2 nd Interested Parties, compelling them to forthwith terminate the current process for Tender for the Provision of Roads/Pavement Opening/Cutting, Ducting and Reinstatement Services Tender No. KP1/9A.2/OT/003/NM/25-26, (hereinafter referred to as the “Tender”) and re advertise the tender in strict compliance with the letter and spirit of Article 227 of the Constitution of Kenya and the Public Procurement and Asset Disposal Act, 2015 (PPADA), specifically by:
a) Allowing a reasonable and sufficient period for the preparation and submission of tenders at least 60 days.
b) Deleting all clauses that rely on undisclosed or subjective criteria, particularly the unpublished "powerline construction services cost handbook" and clauses 39-42 granting unfettered discretion to determine "abnormally low/high" or "unbalanced" tenders.
3. An order of prohibition directed at the 1 st and 2 nd Interested Parties, prohibiting them from proceeding in any manner whatsoever with Tender for the Provision of Roads/Pavement Opening/Cutting, Ducting and Reinstatement Services Tender No. KP1/9A.2/OT/003/NM/25-26, (hereinafter referred to as the “Tender”) or from awarding the said tender based on the flawed tender documents.
4. Such other, further order and/or incidental orders or directions as this Honorable Court shall deem just and expedient.
5. The costs of this application to provide for.
2. From the exparte applicant’s perspective, the circumstances giving rise to these proceedings are that, on or about 29 th October 2025, the 2 nd Interested Party Kenya Power & Lighting Company PLC, which is the procuring entity, published an Invitation To Tender (ITT) for the Provision of Roads/Pavement Opening/Cutting, Ducting and Reinstatement Services (Tender No. KP1/9A.2/OT/003/NM/25-26). The Applicant is said to have downloaded the tender document on or about 3 rd November 2025 from the Procuring Entity’s e-procurement portal, with the bid submission initially scheduled to close on 20 th November 2025 at 10.00 a.m.
3. The Exparte applicant avers that upon downloading the tender document, it noted that the said tender document suffered from fundamental flaws ab initio. First, that it allowed only approximately twenty (20) days for the preparation and submission of bids, which time, according to the Applicant, was manifestly inadequate for a works contract of substantial value, scope, and complexity. Secondly, that the Tender Document contained provisions contrary to the law, including reliance on an undisclosed and unpublished benchmark (the "powerline construction services cost handbook") for financial evaluation; and subjective clauses (Clauses 39 to 42) which is said to have granted the procuring entity unfettered discretion, thus rendering the procurement process susceptible to manipulation, thereby undermining the principles of fairness and objectivity required by the law.
4. Aggrieved by what it had observed concerning the tender document, the exparte applicant filed a Request for Review Application No. 107 of 2025 before the Respondent, Public Procurement Administrative Review Board (the Review Board) on 12 th November 2025, challenging these alleged illegalities as being in breach of Section 80 of the Public Procurement and Asset Disposal Act, 2015 and Article 227 of the Constitution.
5. The Applicant contends that the Respondent did not take into consideration all material information filed before it before dismissing the applicant’s request for review on 3 rd December 2025, holding that a determination of the alleged illegality of the tender clauses was "premature" because the tender submission deadline had not yet lapsed. The Applicant contends that the dismissal of its request for review was a fundamental error of law.
6. The Respondent is said to have in its final orders, given a mandatory direction to the Interested Parties to proceed with the procurement process, thereby sanctioning the continuation of a procurement process based on a document that was fundamentally unlawful.
7. It is the Applicant’s further case that dismissing the request for review on grounds of prematurity constitutes an abdication of the Respondent’s statutory duty under Section 173 of the Act (PPADA) and undermines the principles of fairness transparency and competitiveness in public procurement, as espoused in Articles 10 and 227 of the Constitution.
8. The Applicant further contends that the Review Board's decision is vitiated by multiple errors of law, that it fails to address the use of undisclosed evaluation criteria thereby violating Section 80(2) of the Act and allowing subjective clauses that negate the requirement for objective evaluation standards.
9. The Applicant claims that it had a legitimate expectation, arising from the Constitution and the express provisions of the Act, that its right to a fair administrative action under Article 47 would be protected by the Respondent. However, that this expectation has been violated by the Review Board's impugned decision to ignore patent illegalities in the Tender Document.
10. The Applicant contends that the Respondent erred in finding that bidders had approximately seventeen (17) days to prepare and submit tenders, and that the Interested Parties, allegedly in violation of the mandatory stay and the fourteen (14) day standstill period under Section 175(1) of the Public Procurement and Asset Disposal Act (PPADA), unilaterally issued an Addendum dated 9 th December 2025 setting a revised submission deadline of 18 th December 2025, whereas the earliest lawful date would have been 5 th January 2026.
11. The Applicant avers that the short tender period contravenes Sections 58 and 70(3) of the PPADA and Article 227(1) of the Constitution by denying bidders sufficient time and information to ensure fairness, equity, transparency, competitiveness and cost-effectiveness, is irrational and unnecessary, given that the existing contract for similar works had been extended to 2 nd April 2026.
12. Further, the Applicant challenges Clauses 39 and 40 of the Instructions to Tenderers, which clauses permit rejection of “abnormally low” or “abnormally high” tenders, claiming that the clauses confer unfettered and subjective discretion contrary to Section 80 of the PPADA and Article 227 of the Constitution.
13. According to the applicant, the financial evaluation criteria under Part III, particularly sub-clauses (e) and (f), are irregular and unlawful for relying on an undisclosed “published powerline construction services cost handbook,” in breach of Sections 70(3) and 80(2) of the PPADA and for imposing arbitrary thresholds of 25% above or below an unpublished benchmark, contrary to Article 227(1) and Section 3 of the PPADA.
14. The Applicant further asserts that Clause 41 on “Unbalanced and/or Front-Loaded Tenders” is defective for granting Kenya Power excessive discretion based on its “opinion,” lacking objective or quantifiable criteria, and for allowing an arbitrary increase of performance security up to 30% of the contract price, contrary to Sections 3 and 80(3) of the PPADA and Article 47 of the Constitution.
15. The Applicant also impugns Clause 42 on “ Qualifications of the Tenderer” as being ambiguous and procedurally unfair, particularly Clause 42.1 for permitting subjective determinations “to its satisfaction” contrary to Section 80(2) of the PPADA; Clause 42.2 for excluding consideration of subsidiaries, parent companies, and affiliates, thereby discriminating against joint ventures in violation of Section 3 of the PPADA and Article 227; Clause 42.3 for authorizing disqualification without objective and verifiable evaluation; and Clauses 42.4 to 42.6 for duplicating the defective “abnormally low tender” provisions without objective benchmarks.
16. The Applicant maintains that the Interested Parties breached their statutory duties under the PPADA and the 2020 Regulations by failing to promote fair competition and equitable treatment, rendering the process discriminatory and contrary to Articles 10, 47, 227, and 232 of the Constitution and Section 3 of the Act. It is asserted that the procurement proceedings were unlawful and that the tender outcome is a nullity. The Applicant claims prejudice and loss, including denial of a fair opportunity to compete due to the short submission period, loss of legitimate expectation and potential profits arising from subjective evaluation provisions, loss of business prospects and competitiveness contrary to Sections 58, 70(3), and 80 of the PPADA and financial loss from expenses incurred in tender preparation. The Applicant concludes that these breaches undermine the integrity, transparency, accountability, and public confidence in the procurement process.
17. The Applicant also filed written submissions dated 24 th December 2025. I will combine the applicant’s case with its submissions.
18. It is submitted in reiteration of the facts that the Respondent’s decision dated 3 rd December, 2025 did not adhere to the principles set out in Article 47 of the Constitution and that therefore, the impugned decision by the Respondent was irrational and unreasonable. Reliance is placed on Section 7(2)(k) of the Fair Administrative Actions Act, 2015, which is said to provide that a court may review an administrative action or decision if it is irrational or unreasonable.
19. The Applicant relies on the cases of Republic v Public Procurement Administrative Review Board & 2 others Ex-Parte Pelt Security Services Limited [2018] eKLR, Republic v Public Procurement Administrative Review Board & 2 others Ex Parte - Sanitam Services (E.A) Limited [2013] eKLR and Republic v Public Procurement Administrative Review Board ex parte Trippex Construction Company Limited & another, JR No. 605 of 2015 to support this argument.
20. On the three grounds upon which administrative action is subject to control by judicial review, that is, illegality, irrationality and procedural impropriety, the Applicant relies on the case of Republic v Public Procurement Administrative Review Board & Another Ex Parte Gibb Africa Ltd & Another [2012] eKLR .
21. The Applicant submits that the Respondent acted irrationally and unreasonably by holding that a challenge to the legality of the procurement document itself was premature pursuant to paragraph 136 of the impugned decision dated 3 rd December 2025. That the Respondent's decision effectively means that a bidder must proceed with an illegal, unconstitutional, and time-consuming process before challenging the foundation of that process, which is an absurd outcome that contradicts the spirit of the PPADA and Constitutional principles of public procurement.
22. The Applicant submits that the Respondent acted unreasonably and in breach of Section 80(2) and (3) of the Public Procurement and Asset Disposal Act and Article 227 of the Constitution by refusing to condemn the Procuring Entity’s reliance on undisclosed criteria, namely the “Powerline Construction Services Cost Handbook,” and by upholding Clauses 39–42, which confer unfettered and subjective discretion on the procuring entity. It is submitted in contention that no reasonable public body could lawfully include or sustain such arbitrary provisions, and that the Respondent’s failure to strike them down was Wednesbury unreasonable.
23. The Applicant further argues that the Interested Parties’ claim that the handbook was accessible on their website is untenable, as the tender documents contained no reference, link, or direction to any external source. The Respondent is also faulted for declining to correct these illegalities at an early stage, thereby allowing a flawed process to proceed in a manner contrary to the public interest and resulting in a waste of public resources.
24. Additionally, the Applicant contends that the Respondent unreasonably failed to address the manifestly inadequate bidding timeframe for a complex works contract, which is said to be arbitrary and discriminatory and in contravention of Section 58 of the PPADA. It is also submitted that the Respondent erred in law and failed to exercise its jurisdiction under Section 173 of the PPADA by dismissing the Request for Review foe allegedly being “premature” on the ground that the tender submission deadline had not lapsed.
25. The Applicant relies on the case of JGH Marine A/S Western Marine Services Ltd CNPC Northeast Refining & Chemical Engineering Co. Ltd/Pride Enterprises v Public Procurement Administrative Review Board & 2 others [2015] eKLR where the Court is said to have rendered itself on what amounts to an error of law.
26. It is also the Applicant’s submission that Section 4(3) of the Fair Administrative Action Act requires that, where an administrative action is likely to adversely affect a person’s rights, the administrator shall provide: (a) Prior and adequate notice of the nature and reasons for the proposed action, (b) An opportunity to be heard or make representations and (c) Information, materials and evidence to be relied upon in making the decision.
27. The Applicant further relies on the case Republic v Judiciary & 2 others; Waaso Construction Limited (Ex parte) [2025] KEHC 10847 (KLR) where the Court is said to have outlined the grounds upon which judicial review orders may be granted as laid out in Pastoli v Kabale District Local Government Council & Others [2008] 2 EA 300 .
28. The Applicant submits that the Respondent’s decision denied it an effective and timely administrative remedy under Article 47 of the Constitution and the Fair Administrative Action Act by compelling its participation in a tender process governed by allegedly unlawful rules, thereby rendering the review process illusory. The Respondent is further faulted for sanctioning a procedurally unfair process by failing to address the inadequate bidding period and the use of undisclosed evaluation criteria, contrary to the requirements of fair administrative action. The Applicant contends that the decision violated the applicant’s legitimate expectation that public authorities would act consistently, transparently and in accordance with declared policies and procedures.
29. On the principles of legitimate expectation, the Applicant relies on the cases of Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR , Republic v Kenya School of Law; Ng’ang’a (Exparte Applicant) [2025] KEHC 4965 (KLR) and Republic v Principle Secretary, Ministry of Transport, Housing and Urban Development Ex parte Soweto Residents Forum CBO [2019] eKLR .
30. The Applicant submits that it had a legitimate expectation that the procurement process would be conducted lawfully and in accordance with the principles of fairness, transparency, equity and objectivity; that upon invoking Section 173 of the PPADA, the Respondent would substantively determine the legality of the tender rather than dismiss the Request for Review as “premature”; that a reasonable and sufficient period would be allowed for the preparation and submission of a complex works contract; and that the mandatory fourteen (14) days standstill period under Section 175(1) of the PPADA would be respected to allow recourse to the High Court.
31. The Applicant further contends that, arising from Article 47 of the Constitution and Section 4 of the Fair Administrative Action Act, the Respondent had a duty to protect it’s the applicant’s rights by addressing patent illegalities, which duty was allegedly breached by the Respondent’s irrational dismissal of the Request for Review Application.
The Respondent’s case
32. Opposing the application, the Respondent filed a replying affidavit sworn on 22 nd December 2025 by Philemon Kiprop, the Secretary of the Public Procurement Administrative Review Board.
33. According to the Respondent, the applicant’s application subject of this judgment is an appeal against the Respondent’s Decision and is being disguised as a judicial review application and that therefore, this Court should decline to allow the prayers sought for want of jurisdiction.
34. The Respondent relies on the case of Kenya Pipeline Company Limited v Hyosung Ebara Company Limited & 2 Others [2012] KECA 104 (KLR) where the Court is said to have held that the Respondent is a specialized statutory tribunal established to deal with all complaints of breach of duty by a procuring entity and that it is conferred with wide powers and as such that its jurisdiction should not be lightly interfered with.
35. The Ex parte Applicant is said to have on on 12 th November 2025 filed Review Application No. 107 of 2025 dated 11 th November 2025 and on 3 rd December 2025, the Respondent rendered its decision dismissing the Request for Review and directing for the procurement proceedings to procced.
36. That the Respondent in reaching its Decision considered each of the parties’ cases, documents, pleadings, oral and written submissions, list and bundle of authorities together with confidential documents submitted to it pursuant to Section 67(3)(e) of the Act. That in reaching its decision, the Respondent is said to have found that there were four issues for determination and these were; Whether it had jurisdiction to hear and determine the Request for Review, whether the time provided for submission of tender documents in the subject tender was reasonable and sufficient, whether the provisions of the Tender Document in the subject tender are in breach of the Constitution, the Act and Regulations 2020, and what orders ought to have been grant in the circumstances.
37. On the first issue it is asserted that as can be seen at paragraphs 58 to 86 of its Decision it took cognizance of the provisions under Section 167(1) of the Act and various holdings by the Superior Courts and found that the Applicant had the locus standi to seek an administrative review before it in the subject tender. That the Applicant had sufficiently pleaded the loss it risked to suffer as a result of the alleged breach of duty imposed on the procuring entity by the Act, and that it was a candidate within the meaning of Section 2 and 167(1) of the Act. Thus, the Respondent is said to have established that it had jurisdiction to hear and determine Request for Review No. 107 of 2025.
38. On the second issue of whether the time provided for submission of tender documents in the subject tender was reasonable and sufficient as seen at paragraphs 87 to 97 of its Decision, the Respondent is said to have taken note of the provisions under ITT 3.6 of Section II – Tender Data Sheet (TDS) at page 28 of 146 of the Tender Document establishing that the subject tender was restricted to only local limited companies thus governed by Section 102(2) of the Act as read with Regulation 89(7) of Regulations 2020 which provides the minimum time for preparation of tenders to be 7 days.
39. The Respondent is also said to have taken note of the fact that the subject tender had been advertised on 29 th October 2025 and was initially set to close on 20 th November 2025 giving bidders 22 days to prepare and submit their bids. That the Respondent also took further note of the addenda issued in the subject tender and specifically Addendum No. 2 dated 12 th November 2025 which extended the tender submission deadline to 28 th November 2025 which now meant that bidders had a total 30 days from 29 th October 2025 to 28 th November 2025 to prepare and submit their bids.
40. According to the Respondent, in addition, it noted that ITT 8.2 of Section II – Tender Data Sheet (TDS) at page 28 of 146 of the Tender Document informed eligible bidders that they could ask questions in writing which were required to reach the 2 nd Interested Party not later than 7 days prior to the tender closing date and that as such, the Applicant had an avenue to seek for an extension of the tender submission deadline in the event that it was unable to conclude its preparation and submission of its bid documents within the stipulated timelines.
41. It is further contended that as seen at paragraph 96 of its Decision, the Respondent pointed out that it had not sighted any request for an extension of the tender submission deadline nor any clarification sought by the Applicant and that it was therefore disingenuous for a candidate to complain about sufficiency of time before demonstrating that it had done everything in its power to comply with the provided time but was unable to due to certain justifiable reasons, such as insufficiency of information in the tendering process.
42. That owing to this situation, the Respondent found that the time provided for submission of tender documents in the subject tender was reasonable and sufficient noting that bidders had 17 more days to prepare and submit their bids before the lapse of the tender submission deadline as seen at paragraph 94 of the Respondent’s Decision.
43. The Respondent further contended that in so holding, it took into account the fact that upon the applicant filing of Request for Review No. 107 of 2025 on 12 th November 2025, time stopped running in line with Section 168 of the Act and that by then, 13 days had been expended and bidders therefore had 17 more days to prepare and submit bids before lapse of the submission deadline once time started running after the Respondent had rendered its Decision.
44. Additionally, the Respondent contended that on the third issue, on whether the provisions of the Tender Documents in the subject tender were in breach of the Constitution, the Act and Regulations 2020, the Respondent took cognizance of the provisions of Article 227 of the Constitution, Sections 3, 58, 60, 70 and 80 of the Act as read with Regulation 68 of Regulations 2020, with regard to the mandate placed on an accounting officer of a procuring entity with regard to preparation of the tender documents, laying out the specifications and the evaluation criterion in addition to ensuring that sufficient information is provided to allow fair competition among prospective bidders.
45. Further, the Respondent is said to have taken note of reference to the published powerline construction services cost handbook referred to at Clause 3.4 of Part III – Criteria at page 37 of 146 of the Tender Document; reference to abnormally low tenders and abnormally high tenders as provided under ITT 39 and 40 of Section I: Instructions to Tenderers at page 23 of 146 to 24 of 126 of the Tender Document; reference to the tender evaluated as the lowest evaluated price as provided under Clause 41 of Section I: Instructions to Tenderers at 24 of 126 of the Tender Document; and reference to qualification of the eligible tenderer selected as having submitted the lowest evaluated and substantially responsive tender as provided under Clause 42 of Section I: and Instructions to Tenderers of the Tender Document.
46. That having had the benefit of perusing the Standard Tender Document for Procurement of Works (Roads, Water Bridges etc.) issued by the Public Procurement Regulatory Authority on 22 nd April 2021 and updated on 21 st April 2022 it noted that the impugned clauses had been lifted in verbatim in the subject tender’s Tender Document save for (i) change of reference of the procuring entity to read Kenya Power, and (ii) increase of the total amount of the Performance Security to 30% of the Contract Price as compared to the 10% of the Contract Price set out in the Standard Tender Document.
47. The Respondent is said to have further noted that pursuant to Clause 7 of the Preface of the Standard Tender Document, while the Standard Tender Document is to be customized to suit the needs of a procuring entity, no changes ought to be made to the Instructions to Tenderers (ITT) and the General Conditions of Contract (GCC) as the two sections are modified under the Tender Data Sheet (TDS) to suit the requirements of a procuring entity.
48. That in view of the foregoing, the Respondent proceeded to draw the attention of the 1 st Interested Party to its responsibility to provide sufficient information in the subject tender, that is objective and quantifiable to enable the Evaluation Committee to evaluate bids submitted in the subject tender as envisioned under the Constitution and the Act noting that should a criterion emerge to be ambiguous in the course of evaluation, then the doctrine of contra Proferentem in Interpretation of Contracts would apply.
49. The Respondent is said to have further found that the 1 st Interested Party would shoulder the responsibility of addressing any contest that may have been raised on applicability of an extraneous or ambiguous clause in the subject tender before the Respondent, and that it would be prudent to arrest such issues by way of clarifications before the subject tender submission deadline lapsed.
50. The Respondent further asserted that it also established that it would be premature to determine whether the provisions of the Tender Document in the subject tender were in breach of the Constitution, the Act and Regulations 2020 since the tender submission deadline was yet to lapse and the 2 nd Interested Party still had adequate time to address any clarifications or issues that could be raised by prospective bidders with regard to the subject tender.
51. The Respondent maintains that its Decision dated 3 rd December 2025 in Request for Review No. 107 of 2025 was lawful, reasonable, rational, and procedurally fair, having considered all issues raised and acted within the Constitution, the Public Procurement and Asset Disposal Act, the 2020 Regulations, the Fair Administrative Action Act and Article 227 of the Constitution.
52. It is asserted that the Respondent neither exceeded its mandate nor acted unlawfully, and that the Ex parte Applicant has failed to establish illegality, error of law, irrationality, procedural unfairness, bad faith, abuse of process, or any breach of legitimate process.
53. The Respondent therefore seeks dismissal of the Notice of Motion with costs, but, that in the alternative, urges that if the application is allowed, costs be disallowed pursuant to Section 175(7) of the Act.
54. The Respondent also filed written submissions dated 29 th December 2025 to support its decision and contentions in deposition.
55. The Respondent submits that the Review Board’s finding that a substantive challenge to the tender clauses was “premature” was a rational exercise of discretion, as the procurement was still at a preliminary stage, no bids had been submitted or evaluated and the Review Board’s jurisdiction under Section 167 of the PPADA is triggered by actual or imminent loss.
56. According to the Review Board, bidders had mechanisms under the tender documents, including ITT 8.2, to seek clarifications or extensions, which mechanisms the Applicant did not utilize, and that in any event, time had been suspended under Section 168 of the Act, upon the applicant filing the Request for Review, leaving bidders with adequate time to prepare bids for submission.
57. The Review Board further contended that the Review Board properly exercised its powers under Section 173 of the PPADA by assuming jurisdiction, hearing the parties and issuing a reasoned merits-based decision rather than declining jurisdiction, and by invoking the contra proferentem principle to direct that any ambiguity in the tender documents be interpreted against the Procuring Entity as a safeguard for fairness.
58. The Review Board also noted that issues such as the alleged accessibility of the “powerline construction services cost handbook” which handbook the 2 nd Respondent had indicated was published and accessible on its website could be clarified during the bidding process and that annulling the tender at a pre-submission stage would have been disproportionate.
59. The Respondent maintains that the Review Board correctly observed that the tender was restricted to local limited liability companies under ITT 3.6 of the Tender Data Sheet and as such it applied the statutory framework, including the minimum seven-day preparation period for restricted tenders under Section 102(2) of the PPADA and Regulation 89(7) of the 2020 Regulations , finding that a total of thirty (30) days had been provided and that the proceedings complied with the Fair Administrative Action Act through notice, hearing and consideration of submissions.
60. It is therefore contended that the Applicant’s claims of violated legitimate expectations are unfounded, that any alleged post-decision breach of Section 175(1) would be a
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