1. The Originating Motion herein, dated 20th April 2026, seeks the reliefs of 2 certiorari, 2 mandamus, a prohibition and 2 declaratory orders, with respect to a tender number KPA/053/2025-2026/CCE; a letter, dated 3rd March 2026, of the 3rd respondent on that tender; and a decision, made on 7th April March 2026, by the 1st respondent, on a dispute arising from the same tender.
2. The declarations sought are to the effect that the said tender was restricted to 4 named original manufacturers of specified equipment, which made the interested party ineligible, as a bidder, and that the bid by the applicant, to that tender was substantially responsive. The certiorari orders are sought to quash the letter, dated 3rd March 2026, and the decision made on 7th April 2026. The prohibition order is to bar the 2nd and 3rd respondents from giving effect to the decision of 7th April 2026. The mandamus orders are to compel the 2nd and 3rd respondents to readmit the bid by the applicant, or to compel them to conduct a fresh tendering exercise in conformity with the provisions of the Public Procurement and Asset Disposal Act, Cap 412C, Laws of Kenya.
3. The grounds, upon which the Originating Motion is premised, are set out on the face of the application. It is averred that the tender was restricted to the original manufacturers of the equipment already in use by the 3rd respondent, and the applicant had made the lowest tendered price. The applicant filed a request for review, before the 1st respondent, on 17th March 2026, which was dismissed on 7th April 2026, on grounds that were, according to the applicant, fundamentally flawed in law, fact and reasoning. The grounds, upon which that decision is now being challenged, are identified as illegality and errors of law, prejudice to the legal rights of the applicant, irrationality, unreasonableness and violation of legitimate expectations.
4. The factual background to the application is set out in the supporting affidavit, sworn on 20th April 2026, by Vishal Soni, whose relationship with the applicant is not disclosed. The applicant is said to be a company incorporated in Finland, and a world leading manufacturer of port handling equipment. The 2nd and 3rd respondents floated a restricted tender for procurement of 15 new forklift trucks, which tender was limited to original manufacturers of the equipment currently in use by the 3rd respondent, at its ports and inland container depots, standardisation, interchangeability of parts and aftersales maintenance reasons. The notice of intention to procure, generated by the 2nd and 3rd respondents, identified or named 4 original manufacturers of the equipment.
5. It is stated that the applicant, being eligible and qualified, was issued with a tender document, and it prepared its bid, for Lot 1, in strict compliance with the requirements and instructions, and submitted its bid within the closure deadline, as extended. The tendering process closed on 4th February 2026, and the sealed bids were opened the same day. It emerged that there were 6 bidders, including the applicant and the interested party. The interested party was awarded the tender on 3rd March 2026. On the same date the applicant was notified that its tender had been unresponsive, for failure to provide audited reports for the years 2024 and 2025. It is averred that such audited reports would only have been required for local agents of original manufacturers of the equipment, and not the original manufacturers of the equipment themselves. It is asserted that the applicant had submitted complete audited financial statements for the period required in the tender documents, and the 2nd and 3rd respondents did not seek any clarification from the applicant, with respect to that.
6. It is averred that the applicant was aggrieved by the decision of 3rd March 2026, and challenged it before the 1st respondent, in an application filed on 17th March 2026, in PPARB Application No. 43 of 2026, seeking annulment of the declaration that its application was unresponsive, the annulment of the proposed award to the interested party, and re-admission of its bid for technical and financial evaluation. The 2nd and 3rd respondents and the interested party filed responses. A hearing was conducted, on 1st April 2026, and a decision was made, on 7th April 2026, dismissing the request for review.
7. It is stated that the decision of the 1st respondent suffers the infirmities of illegality, gross errors of law, irrationality, unreasonableness and violation of the legitimate expectations of the applicant. It is submitted that the court should grant the orders sought herein, based on the principles governing conduct of public procurement, set out in section 3 of the Public Procurement and Asset Disposal Act and Article 227 of the Constitution.
8. Several documents are exhibited to the supporting affidavit. There is the notice of the intention to procure through restricted tender, issued by the 3rd respondent, on an undisclosed date in December 2025, restricting the tender to 4 named original equipment manufacturers of the equipment currently in use, who include the applicant. There is a copy of a letter, dated 3rd March 2026, from the 3rd respondent, addressed to the applicant, informing it about the award of tender to the interested party, disclosing the reason why its bid did not succeed, and notifying it that it could challenge the decision within 14 days. There is a copy of the request for review, by the applicant, dated 17th March 2026, together with the affidavits and the annextures supporting it, as well as the written submissions arguing it.
9. The annextures, to the request for review, included a deed of authority, dated 11th March 2026; the undated intention to procure through restricted tender; an invitation to tender letter, dated 2nd January 2026 addressed to the applicant by the 3rd respondent; the tender document itself, dated December 2025; a bundle of addenda, dated 6th January 2026, 9th January 2026, 13th January 2026, 20th January 2026, 23rd January 2026 and 28th January 2026, addressing additional matters, inclusive of extension of the date of the closing of submitting bids; a copy of the letter, dated 3rd March 2026, addressed to the applicant by the 3rd respondent, notifying of the award of the tender to the interested party, and assigning reasons for the rejection of the bid made by the applicant. There are also copies of the filings made by the respondents and the interested party, in PPARB Application No. 43 of 2026, being notices of appointment of Advocates, replying affidavits and written submissions, and lists and bundles of authorities. Finally, there is a copy of the decision in PPARB Application No. 43 of 2026, dated 7th April 2026.
10. Upon being served with the Originating Motion, the 2nd and 3rd respondents and the interested party filed notices of appointments of their respective Advocates, and responded to the application, by way of replying affidavits.
11. The reply, by the 2nd and 3rd respondents, to the Originating Motion, is vide an affidavit that Moses Sirgoi, of the supply and chain management section of the 3rd respondent, swore on 11th May 2026. The affidavit largely aligns with the averments by the applicant about notification of a restricted tender, limited to original equipment manufacturers of the subject equipment currently in use at the ports and inland depots of the 3rd respondent. It is averred that on 3rd December 2025, following publication of the intention to procure, a principal of the interested party wrote, on 30th December 2025, expressing an interest, in participating in the subject tender, and appointing the interested party as its agent. It is further averred that there was legal justification for the inclusion of the interested party in the process, hence it was invited to participate.
12. On 2nd January 2026, invitations to tender were sent out to the 4 original equipment manufacturers mentioned in the intention to tender, and the interested party as the 5th potential bidder. It is stated that the initial closing date for the bids was extended, from 23rd January 2026 to 4th February 2026, when the tenders were opened. 4 bids had been placed, from the applicant and the interested party and 2 other entities. There was an evaluation of the bids, after which letters were written, on 3rd March 2026, communicating awards to those successful and regrets to those unsuccessful. Thereafter, it is averred, the applicant moved to the 1st respondent, in PPARB Application No. 43 of 2026, seeking review of the decision of the 3rd respondent. The 2nd and 3rd respondents reacted to that application for review, which was heard, and a determination was made on 7th April 2026, dismissing the request for review, on grounds that the interested party was eligible to participate in the tender, the 1st respondent lacked jurisdiction for the challenge was filed outside the timelines given in law, and the bid by the applicant was properly found to have been unresponsive.
13. The rest of the affidavit, filed on behalf of the 2nd and 3rd respondents, delves into legal matters, and it carries legal arguments to support the decision of the 1st respondent, and, therefore, it makes submissions on matters of law rather than making factual averments. The legal issues addressed include the definition of illegality, irrationality and procedural impropriety, as per Pastoli vs. Kabale District Local Government Council & Others [2008] EA 300.
14. A number of copies of documents are annexed in support, which are the same as those annexed by the applicant.
15. The reply, by the interested party, takes the form of an affidavit, sworn on 11th April 2026, by Saada Ali Juma, a director of the interested party. It is averred that the interested party became aware of the tender on 27th December 2026, when information on it was posted on the website of the 3rd respondent. It is further averred that that notice invited clarifications, which its principal, Fujian South China Heavy Manufacture Company Limited, took advantage of, to express an interest in the tender, by a letter dated 30th December 2025. The 2nd and 3rd respondents then sent an invitation to tender to the principal, dated 2nd January 2026, effectively allowing it to participate in the tender process. The interested party was appointed as the agent for the principal, and it accordingly placed its bid. The interested party submitted its bid, on 14th January 2026, well before the deadline of 4th February 2026. Its bid was evaluated as the most responsive, and an award was made in its favour, and a letter of notification was issued, dated 3rd March 2026, which it accepted vide its own letter of 8th March 2026. There was a challenge to that award, which was properly dismissed, according to the interested party, by the 1st respondent, on 7th April 2026, for having been raised out of time.
16. The rest of the replying affidavit, filed on behalf of the interested party, dwells on legal arguments on the jurisdiction of the court to deal with the matter. It is averred that the application herein challenges the decision, of 7th April 2026, on factual determinations and technical correctness, yet judicial review proceedings turn on considerations of procedural propriety, legality and rationality; there is only a limited jurisdiction to interrogate merits, where violations of constitutional rights are raised; there is no room for re-evaluation of technical soundness or factual correctness of determinations. There are also legal arguments, in support of the decision of the 1st respondent, anchored on Articles 10 and 227 of the Constitution, with respect to the criteria for determination of responsiveness of bids during preliminary, technical and financial evaluation, and the relevant requirements are mandatory and non-derogable, amongst other considerations.
17. There are no documents annexed to the replying affidavit filed on behalf of the interested party, but it does make reference to the documents attached to the supporting affidavit filed on behalf of the applicant, in the Originating Motion.
18. From the physical file before me, I have not come across any written submissions, filed by either of the parties. I have, however, come across written submissions, in the CTS, filed by the 1st respondent, curiously filed multiple times, by the Advocates for all the parties. I have also found it curious that there is nothing on record indicating that the 1st respondent did file a reply to the application, except for the written submissions. I note, though, that its written submissions refer to an affidavit sworn by Philemon Kiprop, on an undisclosed date, which I have been unable to find in the CTS and the physical file before me.
19. In its written submissions, the 1st respondent has identified 9 issues for determination by the court, namely, whether the Originating Motion meets the threshold for grant of judicial review orders of certiorari, mandamus and prohibition; whether the prayer, seeking re-hearing on merits, is competent in judicial review proceedings; whether the decision of the 1st respondent, dated 7th April 2026, in PPARB Application No. 43 of 2026, is tainted by illegality, irrationality or procedural impropriety; whether the challenge to the eligibility of the interested party was statutorily time-barred, under section 167(1) of the Public Procurement and Asset Disposal Act; whether the 1st respondent correctly interpreted Mandatory Requirement XIV of the tender document and lawfully upheld the disqualification of the bid by the applicant; whether failure by the applicant to provide audited accounts for 2023 and 2024, constituted a minor deviation, curable under section 79(2) of the Public Procurement and Asset Disposal Act; whether the issue of the unconstitutionality of Regulation 89(8) of the Public Procurement and Asset Disposal Regulations, 2020, was properly and timeously raised; whether the 1st respondent properly addressed the issue of the authority of the applicant to file the Request for Review; whether the legitimate expectation of the applicant, if any, was violated by the decision of the 1st respondent; and who should bear the costs of these proceedings.
20. On the first issue, on the threshold for grant of judicial review orders and the competence of the re-hearing prayer, it is submitted that it is trite law that judicial review is concerned with the decision-making process, and not with the merits of the decision itself, and Municipal Council of Mombasa vs. Republic & Umoja Consultants Ltd [2002] eKLR is cited in support. It is argued that the grounds upon which judicial review orders are made is settled in Council of Civil Service Unions vs. Minister for the Civil Service [1985] AC 374, the "GCHQ case", which identifies 3 main grounds: illegality, irrationality, and procedural impropriety. These grounds, it is argued, have been adopted and applied locally in Pastoli vs. Kabale District Local Government Council & Others [2008] 2 EA 300. It is submitted that illegality arises when the decision-making authority commits an error of law or acts without jurisdiction; irrationality is when there is such gross unreasonableness that no reasonable authority would have made the decision; and procedural impropriety is a failure to act fairly or to observe the rules of natural justice.
21. It is submitted that the 1st respondent is a specialized statutory tribunal, established under section 27 of the Public Procurement and Asset Disposal Act. It is argued that in Kenya Pipeline Company Limited vs. Hyosung Ebara Company Limited & 2 others [2012] eKLR, it is held that the Review Board is obviously better equipped than the High Court to handle disputes relating to breach of duty by a procuring entity, and that its decision in matters within its jurisdiction should not be lightly interfered with. It is submitted that this principle has been affirmed in subsequent decisions, including Jamari Enterprises Limited vs. Public Procurement Administrative Review Board & 2 others [2026] KECA 554 (KLR) and Goldfield Insurance Brokers Limited vs. Public Procurement Administrative Review Board & 3 others [2026] KECA 711 (KLR).
22. It is submitted that the Originating Motion herein invites the court to re-evaluate the exercise of due diligence, and to substitute its views for those of the 1st respondent. It is argued that this would be impermissible in judicial review proceedings, as is held in Republic vs. Public Procurement Administrative Review Board & Another ex parte Rongo University [2017] eKLR, judicial review should not be used to micro-manage procurement processes or to supplant the specialized jurisdiction of the 1st respondent. The 1st respondent submits that the applicant has failed to demonstrate any of the 3 grounds warranting judicial review intervention, and it is asserted that the 1st respondent acted within its statutory mandate, observed the rules of natural justice, and arrived at a reasoned decision based on the evidence before it.
23. On whether the challenge to the eligibility of the interested party was statutorily time-barred, it is submitted that section 167(1) of the Public Procurement and Asset Disposal Act is unequivocal, for it provides that a “candidate or a tenderer who claims to have suffered or to risk suffering loss or damage due to a breach of duty imposed on a procuring entity may seek administrative review within fourteen days of notification of award or the date of occurrence of the alleged breach at any stage of the procurement process.” It is argued that Amazon Transporters Limited vs. Public Procurement Administrative Review Board & 2 others; Jennygo Enterprises Limited (Interested Party) [2025] KECA 984 (KLR) holds that the threshold, for determining the date of occurrence of a breach, is the date of actual or constructive knowledge of the breach by the applicant. It is further argued that, in Republic vs. Public Procurement Administrative Review Board & 2 others Ex-Parte Kemotrade Investment Limited [2018] eKLR, it is held that “where an applicant had knowledge of a breach at the tender opening stage, time began to run from that date, and the Board had no jurisdiction to consider the breach when it was included in a request for review filed much later.”
24. The 1st respondent argues that it is not in dispute that a representative of the applicant was present at the tender opening on 4th February 2026, for the Tender Opening Minutes, which form part of the confidential record, show that the names of all bidders were read aloud, including that of the interested party, and the applicant, therefore, knew or ought to have known that the interested party was participating in the tender.
25. In computing whether the request for review was time-barred, it is submitted that the 14-day period had commenced on 4th February 2026 and lapsed on 18th February 2026. In accordance with section 57(a) of the Interpretation and General Provisions Act, Cap 2, Laws of Kenya, 4th February 2026, being the date on which the tender opening occurred, was excluded from the computation. Accordingly, it is submitted, the applicant had the period between 5th February 2026 and 18th February 2026, within which to raise the issue regarding the eligibility of the interested party, to participate in the subject tender proceedings.
26. The applicant filed its request for review on 17th March 2026, a full 41 days after the tender opening. The challenge, to the eligibility of the interested party, was, therefore, it is submitted, well outside the statutory timeline. The applicant, it is submitted, argues that the breach only crystallized upon the issuance of the notification, on 3rd March 2026, of intention to award the tender, because only then did it have knowledge of the legal basis of the participation of the interested party. This argument conflates knowledge of participation with knowledge of legal basis, and is legally untenable for various reasons, it is argued.
27. Firstly, it is submitted, the actionable breach was the participation of the interested party in a restricted tender allegedly limited to 4 named original equipment manufacturers. That fact that the interested party was participating, was known on 4th February 2026. The applicant did not need to know the legal basis of the participation, to be aggrieved by the fact of the participation. It is argued, that a bidder, who observes an allegedly ineligible competitor at tender opening, cannot strategically wait to see whether that competitor wins, before deciding to challenge its eligibility. To permit such a strategy would undermine the entire statutory scheme, under section 167(1) of the Public Procurement and Asset Disposal Act, which is designed to ensure timely resolution of procurement disputes, and to prevent the paralysis of procurement processes through belated challenges.
28. Secondly, it is argued that the eligibility of the interested party was ascertainable from the tender documents themselves. ITT Clause 7, of the invitation to tender, expressly provided that original equipment manufacturers could participate directly or through their duly authorized and appointed local agents based in Kenya. The applicant, as an invited original equipment manufacturer, was aware of this provision. The applicant could have, at the tender opening, or within 14 days thereafter, requested to inspect the manufacturer’s authorization of the interested party, or challenged the tender documents' interpretation as permitting agent participation. It is submitted that the failure by the applicant to do so was a strategic choice, not a barrier created by any statutory confidentiality regime.
29. Thirdly, it is submitted that the reliance of the applicant on confidentiality, under section 67 of the Public Procurement and Asset Disposal Act, is misplaced. Section 67(3)(e) of the Public Procurement and Asset Disposal Act permits disclosure of confidential documents to the parties in the review proceedings. The applicant could have, and in fact did, request and obtain access to the interested party’s bid documents during the proceedings before the 1st respondent. However, it is argued, the confidentiality regime did not prevent the applicant from knowing, on 4th February 2026, that the interested party was participating in the tender. The applicant’s claim, that it lacked knowledge of the legal basis for the interested party's participation, is not a valid excuse for failing to challenge the participation itself within the statutory timeframe.
30. The 1st respondent, therefore, it is submitted, correctly held that it lacked jurisdiction to determine the issue of the eligibility of the interested party on its merits. The finding, by the 1st respondent, on this issue, it is submitted, was lawful, rational and consistent with binding judicial authority.
31. On whether the challenge to Regulation 89(8) was time-barred, it is noted, by the 1st respondent that the applicant argued before the 1st respondent that the participation of the interested party was unlawful, because Regulation 89(8) of the Public Procurement and Asset Disposal Regulations 2020, which allowed the inclusion of bidders outside the known suppliers, had been declared unconstitutional, in Roads and Civil Engineering Contractors Association & another vs. Attorney General & another [2025] KEHC 19224 (KLR). This argument was raised for the first time in the further affidavit of the applicant, filed on 31st March 2026. The applicant was aware of the judgment, in Roads and Civil Engineering Contractors Association & another vs. Attorney General & another [2025] KEHC 19224 (KLR), as it was delivered on 4th December 2025, and was also aware of the reference to Regulation 89(8), in the notice of intention to procure through restricted tender, issued on 23rd December 2025, and in the invitation to tender, received on 2nd January 2026.
32. If the applicant wished to challenge the constitutionality of the regulation or its applicability to the subject tender, it is argued, it should have done so within 14 days of 2nd January 2026, and not 3 months later. It is asserted that the 1st respondent correctly found that this issue was also time-barred, under section 167(1) of the Public Procurement and Asset Disposal Act. In any event, it is further argued, even if Regulation 89(8) were to be declared unconstitutional, the procurement process would still remain validly anchored on section 102(1)(c) and (d) of the Public Procurement and Asset Disposal Act, which independently authorizes restricted tendering, when there is evidence that only a few known suppliers exist in the market, and permit the invitation of other persons or entities capable of supplying the goods. The finding of the 1st respondent, that the participation of the interested party was lawful, was, therefore, it is submitted, sound and well-founded, irrespective of the constitutional status of Regulation 89(8).
33. On whether the 1st respondent correctly interpreted mandatory requirement XIV and lawfully disqualified the bid by the applicant, it is submitted that the touchstone, for evaluating bids in a public procurement process, is responsiveness. Sinopec International Petroleum Service Corporation vs. Public Procurement Administrative Review Board & 3 others [2024] KECA 184 (KLR) is cited in support, where it is held that “bids are first evaluated for compliance with responsiveness criteria before being evaluated for compliance with other criteria. A bid only qualifies as a responsive bid if it meets all requirements as set out in the bid documents. Bids found to be non-responsive are excluded from the bid process regardless of the merits of their bids. Responsiveness is thus the first important hurdle for bidders to overcome.”
34. It is submitted that the bid by the applicant was disqualified at the preliminary evaluation stage, for failure to comply with mandatory requirement XIV of the tender document. The requirement stated:
"Tenderer's complete set of Audited Accounts for the last three years 2022, 2023 and 2024. The Accounts submitted should be audited by a registered auditor and evidenced by Auditor's practicing number (for local the original equipment manufacturers Agents) (Mandatory)."
The 1st respondent interpreted this requirement as imposing, on all tenderers, without exception, the obligation to submit a complete set of audited accounts for the years 2022, 2023, and 2024. The 1st respondent further interpreted the bracketed phrase, "for local the original equipment manufacturers Agents," as imposing an additional evidentiary requirement on local agents, namely, that their accounts be audited by a registered auditor, evidenced by a practising number, while not relieving foreign original equipment manufacturers of the primary obligation to submit audited accounts.
35. The 1st respondent submits that its interpretation was reasonable and lawful, and entitled to substantial deference. The parenthetical, "for local the original equipment manufacturers Agents," it is argued, is placed at the end of the requirement in a manner that is grammatically ambiguous, for it is capable of being read as modifying the entire requirement or only the auditor verification clause. Where a tender document is capable of two reasonable interpretations, it is submitted, that the interpretation adopted by the specialized procurement tribunal, which has institutional expertise in procurement practice and the intent of tender documents, is entitled to significant weight.
36. The 1st respondent further submits that its interpretation is supported by purposive considerations. The purpose of Mandatory Requirement XIV, it is asserted, is to verify the financial capacity and reliability of tenderers over a 3-year period. Financial capacity is a fundamental criterion in public procurement, it is argued further, as it ensures that the successful bidder can perform the contract and meet its financial obligations. To interpret the requirement, as exempting foreign original equipment manufacturers from the obligation to submit audited accounts, would undermine this purpose and create a significant risk to the procuring entity. It would mean that a foreign original equipment manufacturer could participate in a multi-million-shilling tender without any verified financial history for 2 of the 3 required years, which would be a result that is inconsistent with the principles of fairness, transparency, and cost-effectiveness, and contrary to Article 227(1) of the Constitution and section 3 of the Public Procurement and Asset Disposal Act.
37. It is argued that the applicant admitted, before the 1st respondent, and does not dispute, in the present proceedings, that it did not provide audited accounts for 2023 and 2024. It is pointed out that it submitted financial statements for those years without the accompanying auditor's reports. The purpose of an auditor's report, it is submitted, is to provide independent verification that the accounts have been audited in accordance with the applicable standards. Without such a report, it is argued, the procuring entity cannot ascertain the true financial position of the tenderer for those years. The 1st respondent correctly found, it is submitted, that the applicant failed to satisfy the mandatory requirement.
38. It is stated that the applicant argues that the interpretation by the 1st respondent renders the bracketed words "(for local OEM Agents)" superfluous. The 1st respondent submits that this is not so. Under the interpretation by the 1st respondent, the bracketed words have an independent meaning: they impose an additional, specific evidentiary requirement on local agents that does not apply to foreign origin
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2. The declarations sought are to the effect that the said tender was restricted to 4 named original manufacturers of specified equipment, which made the interested party ineligible, as a bidder, and that the bid by the applicant, to that tender was substantially responsive. The certiorari orders are sought to quash the letter, dated 3rd March 2026, and the decision made on 7th April 2026. The prohibition order is to bar the 2nd and 3rd respondents from giving effect to the decision of 7th April 2026. The mandamus orders are to compel the 2nd and 3rd respondents to readmit the bid by the applicant, or to compel them to conduct a fresh tendering exercise in conformity with the provisions of the Public Procurement and Asset Disposal Act, Cap 412C, Laws of Kenya.
3. The grounds, upon which the Originating Motion is premised, are set out on the face of the application. It is averred that the tender was restricted to the original manufacturers of the equipment already in use by the 3rd respondent, and the applicant had made the lowest tendered price. The applicant filed a request for review, before the 1st respondent, on 17th March 2026, which was dismissed on 7th April 2026, on grounds that were, according to the applicant, fundamentally flawed in law, fact and reasoning. The grounds, upon which that decision is now being challenged, are identified as illegality and errors of law, prejudice to the legal rights of the applicant, irrationality, unreasonableness and violation of legitimate expectations.
4. The factual background to the application is set out in the supporting affidavit, sworn on 20th April 2026, by Vishal Soni, whose relationship with the applicant is not disclosed. The applicant is said to be a company incorporated in Finland, and a world leading manufacturer of port handling equipment. The 2nd and 3rd respondents floated a restricted tender for procurement of 15 new forklift trucks, which tender was limited to original manufacturers of the equipment currently in use by the 3rd respondent, at its ports and inland container depots, standardisation, interchangeability of parts and aftersales maintenance reasons. The notice of intention to procure, generated by the 2nd and 3rd respondents, identified or named 4 original manufacturers of the equipment.
5. It is stated that the applicant, being eligible and qualified, was issued with a tender document, and it prepared its bid, for Lot 1, in strict compliance with the requirements and instructions, and submitted its bid within the closure deadline, as extended. The tendering process closed on 4th February 2026, and the sealed bids were opened the same day. It emerged that there were 6 bidders, including the applicant and the interested party. The interested party was awarded the tender on 3rd March 2026. On the same date the applicant was notified that its tender had been unresponsive, for failure to provide audited reports for the years 2024 and 2025. It is averred that such audited reports would only have been required for local agents of original manufacturers of the equipment, and not the original manufacturers of the equipment themselves. It is asserted that the applicant had submitted complete audited financial statements for the period required in the tender documents, and the 2nd and 3rd respondents did not seek any clarification from the applicant, with respect to that.
6. It is averred that the applicant was aggrieved by the decision of 3rd March 2026, and challenged it before the 1st respondent, in an application filed on 17th March 2026, in PPARB Application No. 43 of 2026, seeking annulment of the declaration that its application was unresponsive, the annulment of the proposed award to the interested party, and re-admission of its bid for technical and financial evaluation. The 2nd and 3rd respondents and the interested party filed responses. A hearing was conducted, on 1st April 2026, and a decision was made, on 7th April 2026, dismissing the request for review.
7. It is stated that the decision of the 1st respondent suffers the infirmities of illegality, gross errors of law, irrationality, unreasonableness and violation of the legitimate expectations of the applicant. It is submitted that the court should grant the orders sought herein, based on the principles governing conduct of public procurement, set out in section 3 of the Public Procurement and Asset Disposal Act and Article 227 of the Constitution.
8. Several documents are exhibited to the supporting affidavit. There is the notice of the intention to procure through restricted tender, issued by the 3rd respondent, on an undisclosed date in December 2025, restricting the tender to 4 named original equipment manufacturers of the equipment currently in use, who include the applicant. There is a copy of a letter, dated 3rd March 2026, from the 3rd respondent, addressed to the applicant, informing it about the award of tender to the interested party, disclosing the reason why its bid did not succeed, and notifying it that it could challenge the decision within 14 days. There is a copy of the request for review, by the applicant, dated 17th March 2026, together with the affidavits and the annextures supporting it, as well as the written submissions arguing it.
9. The annextures, to the request for review, included a deed of authority, dated 11th March 2026; the undated intention to procure through restricted tender; an invitation to tender letter, dated 2nd January 2026 addressed to the applicant by the 3rd respondent; the tender document itself, dated December 2025; a bundle of addenda, dated 6th January 2026, 9th January 2026, 13th January 2026, 20th January 2026, 23rd January 2026 and 28th January 2026, addressing additional matters, inclusive of extension of the date of the closing of submitting bids; a copy of the letter, dated 3rd March 2026, addressed to the applicant by the 3rd respondent, notifying of the award of the tender to the interested party, and assigning reasons for the rejection of the bid made by the applicant. There are also copies of the filings made by the respondents and the interested party, in PPARB Application No. 43 of 2026, being notices of appointment of Advocates, replying affidavits and written submissions, and lists and bundles of authorities. Finally, there is a copy of the decision in PPARB Application No. 43 of 2026, dated 7th April 2026.
10. Upon being served with the Originating Motion, the 2nd and 3rd respondents and the interested party filed notices of appointments of their respective Advocates, and responded to the application, by way of replying affidavits.
11. The reply, by the 2nd and 3rd respondents, to the Originating Motion, is vide an affidavit that Moses Sirgoi, of the supply and chain management section of the 3rd respondent, swore on 11th May 2026. The affidavit largely aligns with the averments by the applicant about notification of a restricted tender, limited to original equipment manufacturers of the subject equipment currently in use at the ports and inland depots of the 3rd respondent. It is averred that on 3rd December 2025, following publication of the intention to procure, a principal of the interested party wrote, on 30th December 2025, expressing an interest, in participating in the subject tender, and appointing the interested party as its agent. It is further averred that there was legal justification for the inclusion of the interested party in the process, hence it was invited to participate.
12. On 2nd January 2026, invitations to tender were sent out to the 4 original equipment manufacturers mentioned in the intention to tender, and the interested party as the 5th potential bidder. It is stated that the initial closing date for the bids was extended, from 23rd January 2026 to 4th February 2026, when the tenders were opened. 4 bids had been placed, from the applicant and the interested party and 2 other entities. There was an evaluation of the bids, after which letters were written, on 3rd March 2026, communicating awards to those successful and regrets to those unsuccessful. Thereafter, it is averred, the applicant moved to the 1st respondent, in PPARB Application No. 43 of 2026, seeking review of the decision of the 3rd respondent. The 2nd and 3rd respondents reacted to that application for review, which was heard, and a determination was made on 7th April 2026, dismissing the request for review, on grounds that the interested party was eligible to participate in the tender, the 1st respondent lacked jurisdiction for the challenge was filed outside the timelines given in law, and the bid by the applicant was properly found to have been unresponsive.
13. The rest of the affidavit, filed on behalf of the 2nd and 3rd respondents, delves into legal matters, and it carries legal arguments to support the decision of the 1st respondent, and, therefore, it makes submissions on matters of law rather than making factual averments. The legal issues addressed include the definition of illegality, irrationality and procedural impropriety, as per Pastoli vs. Kabale District Local Government Council & Others [2008] EA 300.
14. A number of copies of documents are annexed in support, which are the same as those annexed by the applicant.
15. The reply, by the interested party, takes the form of an affidavit, sworn on 11th April 2026, by Saada Ali Juma, a director of the interested party. It is averred that the interested party became aware of the tender on 27th December 2026, when information on it was posted on the website of the 3rd respondent. It is further averred that that notice invited clarifications, which its principal, Fujian South China Heavy Manufacture Company Limited, took advantage of, to express an interest in the tender, by a letter dated 30th December 2025. The 2nd and 3rd respondents then sent an invitation to tender to the principal, dated 2nd January 2026, effectively allowing it to participate in the tender process. The interested party was appointed as the agent for the principal, and it accordingly placed its bid. The interested party submitted its bid, on 14th January 2026, well before the deadline of 4th February 2026. Its bid was evaluated as the most responsive, and an award was made in its favour, and a letter of notification was issued, dated 3rd March 2026, which it accepted vide its own letter of 8th March 2026. There was a challenge to that award, which was properly dismissed, according to the interested party, by the 1st respondent, on 7th April 2026, for having been raised out of time.
16. The rest of the replying affidavit, filed on behalf of the interested party, dwells on legal arguments on the jurisdiction of the court to deal with the matter. It is averred that the application herein challenges the decision, of 7th April 2026, on factual determinations and technical correctness, yet judicial review proceedings turn on considerations of procedural propriety, legality and rationality; there is only a limited jurisdiction to interrogate merits, where violations of constitutional rights are raised; there is no room for re-evaluation of technical soundness or factual correctness of determinations. There are also legal arguments, in support of the decision of the 1st respondent, anchored on Articles 10 and 227 of the Constitution, with respect to the criteria for determination of responsiveness of bids during preliminary, technical and financial evaluation, and the relevant requirements are mandatory and non-derogable, amongst other considerations.
17. There are no documents annexed to the replying affidavit filed on behalf of the interested party, but it does make reference to the documents attached to the supporting affidavit filed on behalf of the applicant, in the Originating Motion.
18. From the physical file before me, I have not come across any written submissions, filed by either of the parties. I have, however, come across written submissions, in the CTS, filed by the 1st respondent, curiously filed multiple times, by the Advocates for all the parties. I have also found it curious that there is nothing on record indicating that the 1st respondent did file a reply to the application, except for the written submissions. I note, though, that its written submissions refer to an affidavit sworn by Philemon Kiprop, on an undisclosed date, which I have been unable to find in the CTS and the physical file before me.
19. In its written submissions, the 1st respondent has identified 9 issues for determination by the court, namely, whether the Originating Motion meets the threshold for grant of judicial review orders of certiorari, mandamus and prohibition; whether the prayer, seeking re-hearing on merits, is competent in judicial review proceedings; whether the decision of the 1st respondent, dated 7th April 2026, in PPARB Application No. 43 of 2026, is tainted by illegality, irrationality or procedural impropriety; whether the challenge to the eligibility of the interested party was statutorily time-barred, under section 167(1) of the Public Procurement and Asset Disposal Act; whether the 1st respondent correctly interpreted Mandatory Requirement XIV of the tender document and lawfully upheld the disqualification of the bid by the applicant; whether failure by the applicant to provide audited accounts for 2023 and 2024, constituted a minor deviation, curable under section 79(2) of the Public Procurement and Asset Disposal Act; whether the issue of the unconstitutionality of Regulation 89(8) of the Public Procurement and Asset Disposal Regulations, 2020, was properly and timeously raised; whether the 1st respondent properly addressed the issue of the authority of the applicant to file the Request for Review; whether the legitimate expectation of the applicant, if any, was violated by the decision of the 1st respondent; and who should bear the costs of these proceedings.
20. On the first issue, on the threshold for grant of judicial review orders and the competence of the re-hearing prayer, it is submitted that it is trite law that judicial review is concerned with the decision-making process, and not with the merits of the decision itself, and Municipal Council of Mombasa vs. Republic & Umoja Consultants Ltd [2002] eKLR is cited in support. It is argued that the grounds upon which judicial review orders are made is settled in Council of Civil Service Unions vs. Minister for the Civil Service [1985] AC 374, the "GCHQ case", which identifies 3 main grounds: illegality, irrationality, and procedural impropriety. These grounds, it is argued, have been adopted and applied locally in Pastoli vs. Kabale District Local Government Council & Others [2008] 2 EA 300. It is submitted that illegality arises when the decision-making authority commits an error of law or acts without jurisdiction; irrationality is when there is such gross unreasonableness that no reasonable authority would have made the decision; and procedural impropriety is a failure to act fairly or to observe the rules of natural justice.
21. It is submitted that the 1st respondent is a specialized statutory tribunal, established under section 27 of the Public Procurement and Asset Disposal Act. It is argued that in Kenya Pipeline Company Limited vs. Hyosung Ebara Company Limited & 2 others [2012] eKLR, it is held that the Review Board is obviously better equipped than the High Court to handle disputes relating to breach of duty by a procuring entity, and that its decision in matters within its jurisdiction should not be lightly interfered with. It is submitted that this principle has been affirmed in subsequent decisions, including Jamari Enterprises Limited vs. Public Procurement Administrative Review Board & 2 others [2026] KECA 554 (KLR) and Goldfield Insurance Brokers Limited vs. Public Procurement Administrative Review Board & 3 others [2026] KECA 711 (KLR).
22. It is submitted that the Originating Motion herein invites the court to re-evaluate the exercise of due diligence, and to substitute its views for those of the 1st respondent. It is argued that this would be impermissible in judicial review proceedings, as is held in Republic vs. Public Procurement Administrative Review Board & Another ex parte Rongo University [2017] eKLR, judicial review should not be used to micro-manage procurement processes or to supplant the specialized jurisdiction of the 1st respondent. The 1st respondent submits that the applicant has failed to demonstrate any of the 3 grounds warranting judicial review intervention, and it is asserted that the 1st respondent acted within its statutory mandate, observed the rules of natural justice, and arrived at a reasoned decision based on the evidence before it.
23. On whether the challenge to the eligibility of the interested party was statutorily time-barred, it is submitted that section 167(1) of the Public Procurement and Asset Disposal Act is unequivocal, for it provides that a “candidate or a tenderer who claims to have suffered or to risk suffering loss or damage due to a breach of duty imposed on a procuring entity may seek administrative review within fourteen days of notification of award or the date of occurrence of the alleged breach at any stage of the procurement process.” It is argued that Amazon Transporters Limited vs. Public Procurement Administrative Review Board & 2 others; Jennygo Enterprises Limited (Interested Party) [2025] KECA 984 (KLR) holds that the threshold, for determining the date of occurrence of a breach, is the date of actual or constructive knowledge of the breach by the applicant. It is further argued that, in Republic vs. Public Procurement Administrative Review Board & 2 others Ex-Parte Kemotrade Investment Limited [2018] eKLR, it is held that “where an applicant had knowledge of a breach at the tender opening stage, time began to run from that date, and the Board had no jurisdiction to consider the breach when it was included in a request for review filed much later.”
24. The 1st respondent argues that it is not in dispute that a representative of the applicant was present at the tender opening on 4th February 2026, for the Tender Opening Minutes, which form part of the confidential record, show that the names of all bidders were read aloud, including that of the interested party, and the applicant, therefore, knew or ought to have known that the interested party was participating in the tender.
25. In computing whether the request for review was time-barred, it is submitted that the 14-day period had commenced on 4th February 2026 and lapsed on 18th February 2026. In accordance with section 57(a) of the Interpretation and General Provisions Act, Cap 2, Laws of Kenya, 4th February 2026, being the date on which the tender opening occurred, was excluded from the computation. Accordingly, it is submitted, the applicant had the period between 5th February 2026 and 18th February 2026, within which to raise the issue regarding the eligibility of the interested party, to participate in the subject tender proceedings.
26. The applicant filed its request for review on 17th March 2026, a full 41 days after the tender opening. The challenge, to the eligibility of the interested party, was, therefore, it is submitted, well outside the statutory timeline. The applicant, it is submitted, argues that the breach only crystallized upon the issuance of the notification, on 3rd March 2026, of intention to award the tender, because only then did it have knowledge of the legal basis of the participation of the interested party. This argument conflates knowledge of participation with knowledge of legal basis, and is legally untenable for various reasons, it is argued.
27. Firstly, it is submitted, the actionable breach was the participation of the interested party in a restricted tender allegedly limited to 4 named original equipment manufacturers. That fact that the interested party was participating, was known on 4th February 2026. The applicant did not need to know the legal basis of the participation, to be aggrieved by the fact of the participation. It is argued, that a bidder, who observes an allegedly ineligible competitor at tender opening, cannot strategically wait to see whether that competitor wins, before deciding to challenge its eligibility. To permit such a strategy would undermine the entire statutory scheme, under section 167(1) of the Public Procurement and Asset Disposal Act, which is designed to ensure timely resolution of procurement disputes, and to prevent the paralysis of procurement processes through belated challenges.
28. Secondly, it is argued that the eligibility of the interested party was ascertainable from the tender documents themselves. ITT Clause 7, of the invitation to tender, expressly provided that original equipment manufacturers could participate directly or through their duly authorized and appointed local agents based in Kenya. The applicant, as an invited original equipment manufacturer, was aware of this provision. The applicant could have, at the tender opening, or within 14 days thereafter, requested to inspect the manufacturer’s authorization of the interested party, or challenged the tender documents' interpretation as permitting agent participation. It is submitted that the failure by the applicant to do so was a strategic choice, not a barrier created by any statutory confidentiality regime.
29. Thirdly, it is submitted that the reliance of the applicant on confidentiality, under section 67 of the Public Procurement and Asset Disposal Act, is misplaced. Section 67(3)(e) of the Public Procurement and Asset Disposal Act permits disclosure of confidential documents to the parties in the review proceedings. The applicant could have, and in fact did, request and obtain access to the interested party’s bid documents during the proceedings before the 1st respondent. However, it is argued, the confidentiality regime did not prevent the applicant from knowing, on 4th February 2026, that the interested party was participating in the tender. The applicant’s claim, that it lacked knowledge of the legal basis for the interested party's participation, is not a valid excuse for failing to challenge the participation itself within the statutory timeframe.
30. The 1st respondent, therefore, it is submitted, correctly held that it lacked jurisdiction to determine the issue of the eligibility of the interested party on its merits. The finding, by the 1st respondent, on this issue, it is submitted, was lawful, rational and consistent with binding judicial authority.
31. On whether the challenge to Regulation 89(8) was time-barred, it is noted, by the 1st respondent that the applicant argued before the 1st respondent that the participation of the interested party was unlawful, because Regulation 89(8) of the Public Procurement and Asset Disposal Regulations 2020, which allowed the inclusion of bidders outside the known suppliers, had been declared unconstitutional, in Roads and Civil Engineering Contractors Association & another vs. Attorney General & another [2025] KEHC 19224 (KLR). This argument was raised for the first time in the further affidavit of the applicant, filed on 31st March 2026. The applicant was aware of the judgment, in Roads and Civil Engineering Contractors Association & another vs. Attorney General & another [2025] KEHC 19224 (KLR), as it was delivered on 4th December 2025, and was also aware of the reference to Regulation 89(8), in the notice of intention to procure through restricted tender, issued on 23rd December 2025, and in the invitation to tender, received on 2nd January 2026.
32. If the applicant wished to challenge the constitutionality of the regulation or its applicability to the subject tender, it is argued, it should have done so within 14 days of 2nd January 2026, and not 3 months later. It is asserted that the 1st respondent correctly found that this issue was also time-barred, under section 167(1) of the Public Procurement and Asset Disposal Act. In any event, it is further argued, even if Regulation 89(8) were to be declared unconstitutional, the procurement process would still remain validly anchored on section 102(1)(c) and (d) of the Public Procurement and Asset Disposal Act, which independently authorizes restricted tendering, when there is evidence that only a few known suppliers exist in the market, and permit the invitation of other persons or entities capable of supplying the goods. The finding of the 1st respondent, that the participation of the interested party was lawful, was, therefore, it is submitted, sound and well-founded, irrespective of the constitutional status of Regulation 89(8).
33. On whether the 1st respondent correctly interpreted mandatory requirement XIV and lawfully disqualified the bid by the applicant, it is submitted that the touchstone, for evaluating bids in a public procurement process, is responsiveness. Sinopec International Petroleum Service Corporation vs. Public Procurement Administrative Review Board & 3 others [2024] KECA 184 (KLR) is cited in support, where it is held that “bids are first evaluated for compliance with responsiveness criteria before being evaluated for compliance with other criteria. A bid only qualifies as a responsive bid if it meets all requirements as set out in the bid documents. Bids found to be non-responsive are excluded from the bid process regardless of the merits of their bids. Responsiveness is thus the first important hurdle for bidders to overcome.”
34. It is submitted that the bid by the applicant was disqualified at the preliminary evaluation stage, for failure to comply with mandatory requirement XIV of the tender document. The requirement stated:
"Tenderer's complete set of Audited Accounts for the last three years 2022, 2023 and 2024. The Accounts submitted should be audited by a registered auditor and evidenced by Auditor's practicing number (for local the original equipment manufacturers Agents) (Mandatory)."
The 1st respondent interpreted this requirement as imposing, on all tenderers, without exception, the obligation to submit a complete set of audited accounts for the years 2022, 2023, and 2024. The 1st respondent further interpreted the bracketed phrase, "for local the original equipment manufacturers Agents," as imposing an additional evidentiary requirement on local agents, namely, that their accounts be audited by a registered auditor, evidenced by a practising number, while not relieving foreign original equipment manufacturers of the primary obligation to submit audited accounts.
35. The 1st respondent submits that its interpretation was reasonable and lawful, and entitled to substantial deference. The parenthetical, "for local the original equipment manufacturers Agents," it is argued, is placed at the end of the requirement in a manner that is grammatically ambiguous, for it is capable of being read as modifying the entire requirement or only the auditor verification clause. Where a tender document is capable of two reasonable interpretations, it is submitted, that the interpretation adopted by the specialized procurement tribunal, which has institutional expertise in procurement practice and the intent of tender documents, is entitled to significant weight.
36. The 1st respondent further submits that its interpretation is supported by purposive considerations. The purpose of Mandatory Requirement XIV, it is asserted, is to verify the financial capacity and reliability of tenderers over a 3-year period. Financial capacity is a fundamental criterion in public procurement, it is argued further, as it ensures that the successful bidder can perform the contract and meet its financial obligations. To interpret the requirement, as exempting foreign original equipment manufacturers from the obligation to submit audited accounts, would undermine this purpose and create a significant risk to the procuring entity. It would mean that a foreign original equipment manufacturer could participate in a multi-million-shilling tender without any verified financial history for 2 of the 3 required years, which would be a result that is inconsistent with the principles of fairness, transparency, and cost-effectiveness, and contrary to Article 227(1) of the Constitution and section 3 of the Public Procurement and Asset Disposal Act.
37. It is argued that the applicant admitted, before the 1st respondent, and does not dispute, in the present proceedings, that it did not provide audited accounts for 2023 and 2024. It is pointed out that it submitted financial statements for those years without the accompanying auditor's reports. The purpose of an auditor's report, it is submitted, is to provide independent verification that the accounts have been audited in accordance with the applicable standards. Without such a report, it is argued, the procuring entity cannot ascertain the true financial position of the tenderer for those years. The 1st respondent correctly found, it is submitted, that the applicant failed to satisfy the mandatory requirement.
38. It is stated that the applicant argues that the interpretation by the 1st respondent renders the bracketed words "(for local OEM Agents)" superfluous. The 1st respondent submits that this is not so. Under the interpretation by the 1st respondent, the bracketed words have an independent meaning: they impose an additional, specific evidentiary requirement on local agents that does not apply to foreign origin
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