1. The Originating Motion herein, dated 20th April 2026, seeks the reliefs of 3 certiorari, 1 mandamus, 1 prohibition and 2 declaratory orders, with respect to a Tender No. KPA/039/2025-26/ES for the Supply, Testing and Commissioning of Fourteen (14) New Reachstackers; a letter, dated 3rd March 2026, of the 3rd respondent on that tender; and a decision, made on 7th 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 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 decision in 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 decisions of 3rd March 2026 and 7th April 2026. The mandamus order is sought to compel the 2nd and 3rd respondents to award the tender to the applicant, at the stated tender price named in its tender form, and to execute the procurement contract with the applicant in terms of the tender.
3. The grounds, upon which the Originating Motion is premised, are set out on the face of the application. It is averred that, in terms of section 175(1) of the Public Procurement and Asset Disposal Act, Cap 412C, Laws of Kenya, a person who is aggrieved by a decision of the Review Board may seek judicial review by the High Court within 14 days from the date of the decision of the 1st respondent, failing which the decision of the 1st respondent shall be final and binding, and the instant application has been filed within the said statutory period. Article 47(1) of the Constitution of Kenya 2010 confers on every person, including the applicant, the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair; while section 7 of the Fair Administrative Action Act, Cap 7L, Laws of Kenya, sets out the grounds upon which the court is mandated to judicially review an administrative action or decision.
4. It is further averred that the applicant is aggrieved by the impugned decision of the 1st respondent dated 7th April 2026, in Application No. 42 of 2026, which manifestly suffers the infirmities of illegality, errors of law, irrationality, unreasonableness, procedural unfairness and violation of the legitimate expectations of the applicant. Pursuant to section 175(1) of the Public Procurement and Asset Disposal Act, as read with Article 47 of the Constitution and sections 7 and 11 of the Fair Administrative Action Act, the applicant, therefore, applies for judicial review of the said impugned decision on grounds that of illegality and errors of law, ultra vires, failed to take into account the legally relevant considerations, violation of constitutional principles, procedural unfairness and failure to give adequate reasons, prejudice to the legal rights, irrationality, unreasonableness and violation of legitimate expectations.
5. 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 14 new reachstackers, which tender was limited to original manufacturers of the equipment currently in use by the 3rd respondent, at its port. Standardisation, interchangeability of parts and reduction of costs on engineers were given as the justification for the restricted tender. The notice of intention to procure through restricted tender, generated by the 2nd and 3rd respondents, identified or named 4 original manufacturers of the equipment, or the brand of the equipment, being Sany, Hyster, ZPMC and Kalmar.
6. It is stated that the applicant, being one of the prequalified Original Equipment Manufacturers, was issued with a tender document, and it prepared its bid papers, in strict compliance with the requirements and instructions, and submitted its bid at a price of USD 5,830,219.54. The sealed bids were opened on 4th February 2026. It emerged that there were 4 bidders, being John Achelis & Sohne GmbH, whose bid was valued at USD 12,399,080.72; Fasheta Kenya Limited, whose bid was valued at USD 7,889,751.00; the interested party, who quoted USD 7,314,142.00; and the applicant. 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, and 2 reasons were given for that. The first, that the sum of USD 62,306.89, as cost of strategic backup spares, was for 1 lot instead of the required 14; and the second, that the preschedule contained an alteration, at column 4 item 5, which read “1” instead of “14.”
7. 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. 42 of 2026, seeking annulment of the declaration that its application was unresponsive, annulment of the proposed award to the interested party, declaration that the interested party was ineligible for award under the terms of tender document which required original equipment manufacturers to bid through their authorised agents in Kenya or the region; declaration that the bid by the applicant was responsive; and re-admission of its bid for technical and financial evaluation. The 2nd and 3rd respondents and the interested party filed responses. A decision was made, on 7th April 2026, dismissing the request for review, and directing the 1st respondent to oversee the tender proceedings to their logical and lawful conclusion.
8. It is stated that the decision of the 1st respondent is tainted with of errors of law, irrationality, unreasonableness, procedural unfairness and breach of the legitimate expectations of the applicant, and sets out detailed alleged facts of the fair administrative action errors and misdoings of the 1st respondent. 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.
9. Several documents are exhibited to the supporting affidavit. There is the notice of intention to procure through restricted tender, issued by the 3rd respondent, which is undated, restricting the tender to 4 named original equipment manufacturers of the equipment currently in use at the port, who include the applicant, and setting out the justifications for the restricted tender. There is a letter, dated 28th January 2026, inviting the applicant to tender. There is a copy of the tender that was submitted by the applicant, dated 10th February 2026, for submission on 11th February 2026. 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.
10. 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 28th January 2026, addressed to the applicant by the 3rd respondent; the tender document itself, dated January 2026; 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 1st and 2nd respondents, in PPARB Application No. 42 of 2026, being notices of appointment of Advocates, memoranda of response, annextures 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.
11. Upon being served with the originating motion, the 2nd and 3rd respondents and the interested party have filed notices of appointments of their respective Advocates, and have responded to the application, by way of replying affidavits. The 1st respondent has also replied to the originating motion.
12. The affidavit in reply is by Philemon Kiprop, the Secretary to the 1st respondent, sworn on 15th May 2026. He argues that the challenge to the decision of the 1st respondent was an appeal disguised as a judicial review application. He largely agrees with the factual background given by the applicant. He cites Republic vs. Public Procurement Administrative Review Board Ex parte Fresquare Investments Limited & 2 Others (Interested Parties) [2025] eKLR to argue that the constitutional and statutory framework requires or rather prohibits, strict rejection of tenders that fail to meet mandatory requirements. On the eligibility of the interested party to place a bid, he avers that the brand manufacturer of ZPMC, Shanghai Port Machinery Heavy Industries Co. Ltd, had written a letter, dated 5th February 2026 addressed to the 3rd respondent, informing that it had authorized the interested party to bid for the subject tender.
13. He argues that Roads and Civil Engineering Contractors Association & another vs. Attorney General & another; Public Procurement Administrative Review Board & another (Interested Parties) [2025] KEHC 19224 (KLR) did not apply to the tender in question, in view of the authority from the manufacturer, and the fact that the issue of the effect of that decision, of Roads and Civil Engineering Contractors Association & another vs. Attorney General & another; Public Procurement Administrative Review Board & another (Interested Parties) [2025] KEHC 19224 (KLR), on the tender was being raised outside the time allowed.
14. He supports the decision of the 1st respondent of the April 2026 in Request for Review No. 42 of 2026, asserting that was sound, reasonable, lawful, procedurally fair and rational, as it took into account all the issues raised and there is no doubt that the 1st respondent acted within the confines of the Constitution, the Fair Administrative Action Act and the rule of law. It is asserted that the applicant has failed to demonstrate any elements of illegality, error of law, irrationality, unreasonableness, procedural unfairness, ultra vires, bad faith and abuse of process, or violation of legitimate process in the manner in which the 1st respondent considered and interrogated the evidence, documents, pleadings and information before it, in arriving at its decision.
15. 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 12th May 2026. The affidavit largely aligns with the averments by the applicant about advertisement of a restricted tender, limited to original equipment manufacturers of the subject equipment currently in use at the port of the 3rd respondent. The 4 prequalified original equipment manufacturers are identified as Sany Marine Heavy Industries Company Limited, Shanghai Port Machinery Heavy Industries Company Limited, Kalmar Global and Hyster Hale Group. It is averred that the tenders were opened on 11th February 2026, and 4 bids had been placed, by Jon Achelis & Sohne GmbH, Kalmar Finland Oy/Kalmar Middle East DMCC, Fasheta Kenya Limited and ZPMC/Amberton Holdings FZC. 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. 42 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 bid by the applicant was properly found to have been unresponsive, and the interested party was eligible to participate in the tender. 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.
16. A number of copies of documents are attached to the replying affidavit, which are largely the same as those annexed by the applicant.
17. The reply, by the interested party, takes the form of an affidavit, sworn on 11th April 2026, by Imran Motala, a director and manager of the interested party. He identifies the issues ventilated by the applicant as that the tender was expressly restricted to 4 named original equipment manufacturers, and anyone of them could bid through an authorised agent, who was required to notify the 3rd respondent of that fact 3 days prior; the manufacturers authority for the interested party was not sufficient nor valid; and the bids by the applicant and the interested party were treated differently. It is averred that that the request for review did not challenge the purported noncompliance by the interested party, as to whether the original equipment manufacturer notified the 3rd respondent of its intention to bid through an agent within 3 days. It is also averred that the same is new ground, raised on review, which the court should not entertain. It is asserted that the 1st respondent had access to the confidential documents that were used during the tendering process, and which bore the authorisation by the ZPMC brand manufacturer to act for it.
18. 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.
19. Directions on disposal of the originating motion were initially given on 22nd April 2026, to be filed and exchanged within 21 days, which were to lapse on or before 13th May 2026. The matter was mentioned on 13th May 2026. By then none of the parties had filed and served written submissions. The parties asked for 7 days to file and serve the same. The applicant was given up to 18th May 2026 to file and serve its submissions, and the other parties were to file theirs by 22nd May 2026, to give room for service of submissions on them by the applicant. Judgement was fixed for 28th May 2026. The 2nd and 3rd respondents and the interested party filed theirs on 22nd May 2026 as directed. The applicant filed its submissions on 25th May 2026.
20. Upon serving the submissions on the other parties, there was consternation for that failure to comply with the directions of 22nd April 2026 and 13th May 2026, and the interested party caused the matter to be placed before me on 26th May 2026. By then I had already written the judgement, and was unable to extend the date for delivery of judgement, taking into account the fact that 28th May 2026 and 2nd June 2026 were and are public holidays, and the 45-day limitation period expires on or about 6th June 2026. I reiterated that I would deliver the judgement as scheduled, on 28th May 2026, based on the judgment already prepared, without the written submissions of the applicant.
21. In its written submissions, the 1st respondent has identified 8 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 decision of 7th April 2026 in PPARB Application No. 42 of 2026 was tainted by illegality, irrationality, or procedural impropriety; whether the 1st respondent corrected the tender sum in the bid by the applicant in contravention of section 82(1) of the Act; whether the bid by the applicant contained material deviations or merely minor deviations capable of being waived; whether the interested party was eligible to participate in the subject tender; whether the 1st respondent misapplied section 167(1) of the Public Procurement and Asset Disposal Act, in holding that the challenge by the applicant to Regulation 89(8) of the Public Procurement and Asset Disposal Regulations was time-barred; whether the applicant has demonstrated any breach of legitimate expectation or violation of Articles 10, 27, 47 and 227 of the Constitution; and who should bear the costs of these proceedings.
22. On the first issue, on the threshold for grant of judicial review orders, 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 and Republic vs. Kenya Revenue Authority, Ex parte Yaya Towers Limited [2008] eKLR are 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.
23. 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. It is argued that the originating motion invites the court to re-evaluate the assessment of the tender documents by the 1st respondent, and to substitute its views for those of the 1st respondent, which is impermissible in judicial review proceedings, as held in Republic vs. Public Procurement Administrative Review Board & 2 others Exparte Rongo University [2018] KEHC 9643 (KLR), which holds that judicial review should not be used to micro-manage procurement processes or to supplant the specialized jurisdiction of the 1st respondent.
24. On the alleged correction of the applicant’s tender sum, contrary to section 82(1) of the Act, it is submitted that the applicant fundamentally mischaracterizes the analytical exercise by the 1st respondent, at paragraph 133 of its determination, for it did not, at any point, purport to correct, revise, adjust, or amend the applicant's tender sum of USD 5,830,219.54 CIF Mombasa, as stated in the Form of Tender, and read out at the tender opening, and that its observation, at paragraph 133, was purely illustrative and evaluative, not corrective. It is argued that the 1st respondent only engaged in a lawful evaluative exercise of interrogating the compliance by the applicant with the mandatory requirements of the tender document, particularly the requirement to complete the price schedule in the prescribed format.
25. It is averred that, in performing this evaluative function, the 1st respondent considered what the consequence would be, if the alteration by the applicant ,of the quantity from "14" to "1," in the price schedule were to be treated as a non-material deviation, capable of correction, observing that such a "correction" would fundamentally alter the bid price, because the unit price would have to be multiplied by 14, yielding a different figure. It is argued that that observation was not an act of correction, but a logical demonstration that the deviation by the applicant went to the substance of its bid. It is argued that the 1st respondent was entitled to engage in this hypothetical reasoning, to demonstrate why the deviation was material, not minor. It is asserted that the distinction between evaluative reasoning and actual correction is well recognized in procurement jurisprudence.
26. On whether the bid by the applicant contained material deviations, it is submitted that section 79(1) of the Public Procurement and Asset Disposal Act provides that a tender is responsive if it conforms to all the eligibility and mandatory requirements in the tender documents. Section 79(2) provides that a responsive tender shall not be affected by minor deviations that do not materially depart from the requirements set out in the tender documents, or by errors or oversights that can be corrected without affecting the substance of the tender. It is submitted that the classification of a deviation as material or minor is a matter of statutory interpretation and factual assessment, according to Regulation 74(2) of the Public Procurement and Asset Disposal Regulations, 2020, which provides that any errors in the submitted tender arising from a miscalculation of unit price, quantity, subtotal and total bid price shall be considered as a major deviation that affects the substance of the tender, and shall lead to disqualification of the tender as non-responsive. It is submitted that the 1st respondent, in its decision, had identified two material deviations in the bid by the applicant, being in respect of filling of Table 3 for cost of strategic back-up spares and alteration of the price schedule.
27. It is argued that the 1st respondent was entitled to find that these deviations were material. It is explained that material deviation is one that affects in a substantial way the scope, quality, or performance of the works as stipulated in the tender document; or limits substantially, inconsistent with the bidding document, the procuring entity's rights or the bidder's rights under the proposed contract; or if rectified, would unfairly affect the competitive position of other bidders presenting substantially responsive bids. It is asserted that the deviations by the applicant met all three criteria. It is argued that the characterization of the deviation, by the applicant, as a "typographical error" is an attempt to trivialize a fundamental non-compliance, for a typographical error is a minor slip that does not affect the substance of the tender.
28. It is asserted that the entry of "1" instead of "14" in the price schedule, coupled with the addition of an unauthorized Column 7 in Table 3, fundamentally altered the pricing structure and the contractual scope, and the same was not a typographical error, but a material deviation. It is submitted that the test is in Republic vs. Public Procurement Administrative Review Board; Kenya Airports Authority & another (Interested Parties); Fresquare Investments Limited (Ex parte Applicant) [2026] KEHC 25 (KLR), where the court reiterated that the constitutional and statutory framework requires strict rejection of tenders that fail to meet mandatory requirements, asserting that fairness in procurement is achieved by uniform application of the rules to all bidders.
29. On the alleged illegality and error of law, particularly, the alleged failure to apply section 81 of the Public Procurement and Asset Disposal Act, it is submitted that that allegation is misconceived for several reasons. Firstly, section 81(1) of the Act confers a discretionary power, it does not impose a mandatory duty, for the procuring entity is not obliged to seek clarification in every case of ambiguity, and the decision whether to seek clarification is an evaluative judgment entrusted to the procuring entity and, on review, to the 1st respondent. Secondly, the Board was not reviewing the decision of the 3rd respondent to disqualify the applicant, on the basis that it failed to seek clarification, rather the 1st respondent was reviewing whether the decision of the 3rd respondent to disqualify was lawful, reasonable, and procedurally fair.
30. It is submitted that the 1st respondent found that the said bid contained material deviations, which rendered it non-responsive, hence there was no obligation to seek clarification, because the bid was non-responsive ab initio, for clarification, under section 81, is intended to assist in the evaluation of responsive tenders, not to cure non-responsive bids. Thirdly, it is submitted that the applicant did not demonstrate that the alleged ambiguity was "apparent" on the face of the bid. It is assured that the bid was internally inconsistent: the Form of Tender stated a total price for 14 Reachstackers, but the Price Schedule indicated a quantity of 1 for the back-up spares. It is argued that that was not an ambiguity, but a material deviation, for which a procuring entity is not required to seek clarification of a bid that is demonstrably non-responsive.
31. On the alleged misapplication of section 167(1) of the Public Procurement and Asset Disposal Act, it is submitted that the finding on limitation was directed specifically at the belated challenge to the constitutionality of Regulation 89(8) of the Public Procurement and Asset Disposal Regulations, 2020, and the 1st respondent correctly held that this challenge was time-barred because the applicant ought to have raised it within 14 days of the occurrence of the alleged breach, which was the publication of the Intention to Procure Notice on 23rd December 2025 or the issuance of the Invitation to Tender on 28th January 2026. Goldfield Insurance Brokers Limited vs. Public Procurement Administrative Review Board & 2 others [2026] KEHC 19 (KLR) is cited, where it was emphasized that statutory timelines are strictly enforced, and a bidder must not hesitate when it spots a procedural anomaly, for the 14-day clock begins to tick the moment the bidder becomes aware of the breach.
32. On the alleged failure to take into account relevant considerations, where the applicant alleges that the 1st respondent failed to take into account that the tender was restricted to 4 named original equipment manufacturers and that the interested party was not one of them, it is argued that the 1st respondent did take this into account, and found that the interested party had submitted a manufacturer’s authorization from Shanghai Port Machinery Heavy Industries Co. Limited, an original equipment manufacturer identified in the notice of intention to procure through restricted tender. It is asserted that the 1st respondent was entitled to rely on this evidence and to find that the interested party was eligible to participate.
33. On the eligibility of the interested party, it is submitted that finding on eligibility was based on the evidence before it, including the bid documents by the interested party and the manufacturer’s authorization from Shanghai Port Machinery Heavy Industries Co. Limited, and it was entitled to rely on this evidence and to find that the interested party was an authorized agent of an eligible original equipment manufacturer. It is argued that Clause 16.2(a) of the subject tender document expressly provided that a tenderer who was not the manufacturer of the goods offered to be supplied was required to submit a manufacturer's authorization using the prescribed form; while Clause 16.2(b) provided that a tenderer who is not doing business in Kenya was required to provide an undertaking that if awarded the tender, it will be represented by an agent in Kenya equipped and able to carry out the supplier's maintenance, repair, and spare parts-stocking obligations. It is submitted that the interested party complied with both requirements, for the manufacturer’s authorization, from Shanghai Port Machinery Heavy Industries Co. Limited, was presented, which duly authorized the interested party to submit its bid and to subsequently negotiate and sign the contract on its behalf, and it also submitted the requisite duly signed undertaking in accordance with Clause 16.2(b).
34. On the challenge by the applicant to the constitutionality of Regulation 89(8) of the of the Public Procurement and Asset Disposal Regulations, 2020, which purportedly allowed the 2nd and 3rd respondents to invite a bidder outside the known suppliers, was time-barred, it is submitted that the 1st respondent correctly held that this challenge ought to have been raised within the stipulated statutory timelines of 14 days from 23rd December 2025 or 28th January 2026. It is further argued that, even if Regulation 89(8) were declared unconstitutional, the procurement process remained lawfully anchored under section 102(1) of the Public Procurement and Asset Disposal Act, which allows for restricted tendering, where there is evidence that only a few suppliers exist in the market. It is asserted that the finding of the 1st respondent, on the eligibility of the interested party was, therefore, sound and well-founded.
35. On alleged irrationality and unreasonableness, it is submitted that the standard of review for irrationality and unreasonableness is the Wednesbury standard, as modified by the constitutional context of Kenya. It is argued that a decision is irrational or unreasonable if it is so unreasonable that no reasonable tribunal, properly directing itself on the law and the facts, could have arrived at it. It is submitted that the threshold is high, and the court does not substitute its own view for that of the decision-maker. It is further argued that, in the context of procurement disputes, the courts have consistently held that the 1st respondent, as a specialized statutory tribunal, is better equipped to make evaluative judgments on procurement matters, and that the court should be hesitant to assume the statutory discretion entrusted to the 1st respondent. Kenya Pipeline Ltd vs.
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2. The declarations sought are to the effect that the said tender was restricted to 4 named 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 decision in 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 decisions of 3rd March 2026 and 7th April 2026. The mandamus order is sought to compel the 2nd and 3rd respondents to award the tender to the applicant, at the stated tender price named in its tender form, and to execute the procurement contract with the applicant in terms of the tender.
3. The grounds, upon which the Originating Motion is premised, are set out on the face of the application. It is averred that, in terms of section 175(1) of the Public Procurement and Asset Disposal Act, Cap 412C, Laws of Kenya, a person who is aggrieved by a decision of the Review Board may seek judicial review by the High Court within 14 days from the date of the decision of the 1st respondent, failing which the decision of the 1st respondent shall be final and binding, and the instant application has been filed within the said statutory period. Article 47(1) of the Constitution of Kenya 2010 confers on every person, including the applicant, the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair; while section 7 of the Fair Administrative Action Act, Cap 7L, Laws of Kenya, sets out the grounds upon which the court is mandated to judicially review an administrative action or decision.
4. It is further averred that the applicant is aggrieved by the impugned decision of the 1st respondent dated 7th April 2026, in Application No. 42 of 2026, which manifestly suffers the infirmities of illegality, errors of law, irrationality, unreasonableness, procedural unfairness and violation of the legitimate expectations of the applicant. Pursuant to section 175(1) of the Public Procurement and Asset Disposal Act, as read with Article 47 of the Constitution and sections 7 and 11 of the Fair Administrative Action Act, the applicant, therefore, applies for judicial review of the said impugned decision on grounds that of illegality and errors of law, ultra vires, failed to take into account the legally relevant considerations, violation of constitutional principles, procedural unfairness and failure to give adequate reasons, prejudice to the legal rights, irrationality, unreasonableness and violation of legitimate expectations.
5. 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 14 new reachstackers, which tender was limited to original manufacturers of the equipment currently in use by the 3rd respondent, at its port. Standardisation, interchangeability of parts and reduction of costs on engineers were given as the justification for the restricted tender. The notice of intention to procure through restricted tender, generated by the 2nd and 3rd respondents, identified or named 4 original manufacturers of the equipment, or the brand of the equipment, being Sany, Hyster, ZPMC and Kalmar.
6. It is stated that the applicant, being one of the prequalified Original Equipment Manufacturers, was issued with a tender document, and it prepared its bid papers, in strict compliance with the requirements and instructions, and submitted its bid at a price of USD 5,830,219.54. The sealed bids were opened on 4th February 2026. It emerged that there were 4 bidders, being John Achelis & Sohne GmbH, whose bid was valued at USD 12,399,080.72; Fasheta Kenya Limited, whose bid was valued at USD 7,889,751.00; the interested party, who quoted USD 7,314,142.00; and the applicant. 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, and 2 reasons were given for that. The first, that the sum of USD 62,306.89, as cost of strategic backup spares, was for 1 lot instead of the required 14; and the second, that the preschedule contained an alteration, at column 4 item 5, which read “1” instead of “14.”
7. 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. 42 of 2026, seeking annulment of the declaration that its application was unresponsive, annulment of the proposed award to the interested party, declaration that the interested party was ineligible for award under the terms of tender document which required original equipment manufacturers to bid through their authorised agents in Kenya or the region; declaration that the bid by the applicant was responsive; and re-admission of its bid for technical and financial evaluation. The 2nd and 3rd respondents and the interested party filed responses. A decision was made, on 7th April 2026, dismissing the request for review, and directing the 1st respondent to oversee the tender proceedings to their logical and lawful conclusion.
8. It is stated that the decision of the 1st respondent is tainted with of errors of law, irrationality, unreasonableness, procedural unfairness and breach of the legitimate expectations of the applicant, and sets out detailed alleged facts of the fair administrative action errors and misdoings of the 1st respondent. 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.
9. Several documents are exhibited to the supporting affidavit. There is the notice of intention to procure through restricted tender, issued by the 3rd respondent, which is undated, restricting the tender to 4 named original equipment manufacturers of the equipment currently in use at the port, who include the applicant, and setting out the justifications for the restricted tender. There is a letter, dated 28th January 2026, inviting the applicant to tender. There is a copy of the tender that was submitted by the applicant, dated 10th February 2026, for submission on 11th February 2026. 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.
10. 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 28th January 2026, addressed to the applicant by the 3rd respondent; the tender document itself, dated January 2026; 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 1st and 2nd respondents, in PPARB Application No. 42 of 2026, being notices of appointment of Advocates, memoranda of response, annextures 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.
11. Upon being served with the originating motion, the 2nd and 3rd respondents and the interested party have filed notices of appointments of their respective Advocates, and have responded to the application, by way of replying affidavits. The 1st respondent has also replied to the originating motion.
12. The affidavit in reply is by Philemon Kiprop, the Secretary to the 1st respondent, sworn on 15th May 2026. He argues that the challenge to the decision of the 1st respondent was an appeal disguised as a judicial review application. He largely agrees with the factual background given by the applicant. He cites Republic vs. Public Procurement Administrative Review Board Ex parte Fresquare Investments Limited & 2 Others (Interested Parties) [2025] eKLR to argue that the constitutional and statutory framework requires or rather prohibits, strict rejection of tenders that fail to meet mandatory requirements. On the eligibility of the interested party to place a bid, he avers that the brand manufacturer of ZPMC, Shanghai Port Machinery Heavy Industries Co. Ltd, had written a letter, dated 5th February 2026 addressed to the 3rd respondent, informing that it had authorized the interested party to bid for the subject tender.
13. He argues that Roads and Civil Engineering Contractors Association & another vs. Attorney General & another; Public Procurement Administrative Review Board & another (Interested Parties) [2025] KEHC 19224 (KLR) did not apply to the tender in question, in view of the authority from the manufacturer, and the fact that the issue of the effect of that decision, of Roads and Civil Engineering Contractors Association & another vs. Attorney General & another; Public Procurement Administrative Review Board & another (Interested Parties) [2025] KEHC 19224 (KLR), on the tender was being raised outside the time allowed.
14. He supports the decision of the 1st respondent of the April 2026 in Request for Review No. 42 of 2026, asserting that was sound, reasonable, lawful, procedurally fair and rational, as it took into account all the issues raised and there is no doubt that the 1st respondent acted within the confines of the Constitution, the Fair Administrative Action Act and the rule of law. It is asserted that the applicant has failed to demonstrate any elements of illegality, error of law, irrationality, unreasonableness, procedural unfairness, ultra vires, bad faith and abuse of process, or violation of legitimate process in the manner in which the 1st respondent considered and interrogated the evidence, documents, pleadings and information before it, in arriving at its decision.
15. 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 12th May 2026. The affidavit largely aligns with the averments by the applicant about advertisement of a restricted tender, limited to original equipment manufacturers of the subject equipment currently in use at the port of the 3rd respondent. The 4 prequalified original equipment manufacturers are identified as Sany Marine Heavy Industries Company Limited, Shanghai Port Machinery Heavy Industries Company Limited, Kalmar Global and Hyster Hale Group. It is averred that the tenders were opened on 11th February 2026, and 4 bids had been placed, by Jon Achelis & Sohne GmbH, Kalmar Finland Oy/Kalmar Middle East DMCC, Fasheta Kenya Limited and ZPMC/Amberton Holdings FZC. 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. 42 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 bid by the applicant was properly found to have been unresponsive, and the interested party was eligible to participate in the tender. 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.
16. A number of copies of documents are attached to the replying affidavit, which are largely the same as those annexed by the applicant.
17. The reply, by the interested party, takes the form of an affidavit, sworn on 11th April 2026, by Imran Motala, a director and manager of the interested party. He identifies the issues ventilated by the applicant as that the tender was expressly restricted to 4 named original equipment manufacturers, and anyone of them could bid through an authorised agent, who was required to notify the 3rd respondent of that fact 3 days prior; the manufacturers authority for the interested party was not sufficient nor valid; and the bids by the applicant and the interested party were treated differently. It is averred that that the request for review did not challenge the purported noncompliance by the interested party, as to whether the original equipment manufacturer notified the 3rd respondent of its intention to bid through an agent within 3 days. It is also averred that the same is new ground, raised on review, which the court should not entertain. It is asserted that the 1st respondent had access to the confidential documents that were used during the tendering process, and which bore the authorisation by the ZPMC brand manufacturer to act for it.
18. 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.
19. Directions on disposal of the originating motion were initially given on 22nd April 2026, to be filed and exchanged within 21 days, which were to lapse on or before 13th May 2026. The matter was mentioned on 13th May 2026. By then none of the parties had filed and served written submissions. The parties asked for 7 days to file and serve the same. The applicant was given up to 18th May 2026 to file and serve its submissions, and the other parties were to file theirs by 22nd May 2026, to give room for service of submissions on them by the applicant. Judgement was fixed for 28th May 2026. The 2nd and 3rd respondents and the interested party filed theirs on 22nd May 2026 as directed. The applicant filed its submissions on 25th May 2026.
20. Upon serving the submissions on the other parties, there was consternation for that failure to comply with the directions of 22nd April 2026 and 13th May 2026, and the interested party caused the matter to be placed before me on 26th May 2026. By then I had already written the judgement, and was unable to extend the date for delivery of judgement, taking into account the fact that 28th May 2026 and 2nd June 2026 were and are public holidays, and the 45-day limitation period expires on or about 6th June 2026. I reiterated that I would deliver the judgement as scheduled, on 28th May 2026, based on the judgment already prepared, without the written submissions of the applicant.
21. In its written submissions, the 1st respondent has identified 8 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 decision of 7th April 2026 in PPARB Application No. 42 of 2026 was tainted by illegality, irrationality, or procedural impropriety; whether the 1st respondent corrected the tender sum in the bid by the applicant in contravention of section 82(1) of the Act; whether the bid by the applicant contained material deviations or merely minor deviations capable of being waived; whether the interested party was eligible to participate in the subject tender; whether the 1st respondent misapplied section 167(1) of the Public Procurement and Asset Disposal Act, in holding that the challenge by the applicant to Regulation 89(8) of the Public Procurement and Asset Disposal Regulations was time-barred; whether the applicant has demonstrated any breach of legitimate expectation or violation of Articles 10, 27, 47 and 227 of the Constitution; and who should bear the costs of these proceedings.
22. On the first issue, on the threshold for grant of judicial review orders, 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 and Republic vs. Kenya Revenue Authority, Ex parte Yaya Towers Limited [2008] eKLR are 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.
23. 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. It is argued that the originating motion invites the court to re-evaluate the assessment of the tender documents by the 1st respondent, and to substitute its views for those of the 1st respondent, which is impermissible in judicial review proceedings, as held in Republic vs. Public Procurement Administrative Review Board & 2 others Exparte Rongo University [2018] KEHC 9643 (KLR), which holds that judicial review should not be used to micro-manage procurement processes or to supplant the specialized jurisdiction of the 1st respondent.
24. On the alleged correction of the applicant’s tender sum, contrary to section 82(1) of the Act, it is submitted that the applicant fundamentally mischaracterizes the analytical exercise by the 1st respondent, at paragraph 133 of its determination, for it did not, at any point, purport to correct, revise, adjust, or amend the applicant's tender sum of USD 5,830,219.54 CIF Mombasa, as stated in the Form of Tender, and read out at the tender opening, and that its observation, at paragraph 133, was purely illustrative and evaluative, not corrective. It is argued that the 1st respondent only engaged in a lawful evaluative exercise of interrogating the compliance by the applicant with the mandatory requirements of the tender document, particularly the requirement to complete the price schedule in the prescribed format.
25. It is averred that, in performing this evaluative function, the 1st respondent considered what the consequence would be, if the alteration by the applicant ,of the quantity from "14" to "1," in the price schedule were to be treated as a non-material deviation, capable of correction, observing that such a "correction" would fundamentally alter the bid price, because the unit price would have to be multiplied by 14, yielding a different figure. It is argued that that observation was not an act of correction, but a logical demonstration that the deviation by the applicant went to the substance of its bid. It is argued that the 1st respondent was entitled to engage in this hypothetical reasoning, to demonstrate why the deviation was material, not minor. It is asserted that the distinction between evaluative reasoning and actual correction is well recognized in procurement jurisprudence.
26. On whether the bid by the applicant contained material deviations, it is submitted that section 79(1) of the Public Procurement and Asset Disposal Act provides that a tender is responsive if it conforms to all the eligibility and mandatory requirements in the tender documents. Section 79(2) provides that a responsive tender shall not be affected by minor deviations that do not materially depart from the requirements set out in the tender documents, or by errors or oversights that can be corrected without affecting the substance of the tender. It is submitted that the classification of a deviation as material or minor is a matter of statutory interpretation and factual assessment, according to Regulation 74(2) of the Public Procurement and Asset Disposal Regulations, 2020, which provides that any errors in the submitted tender arising from a miscalculation of unit price, quantity, subtotal and total bid price shall be considered as a major deviation that affects the substance of the tender, and shall lead to disqualification of the tender as non-responsive. It is submitted that the 1st respondent, in its decision, had identified two material deviations in the bid by the applicant, being in respect of filling of Table 3 for cost of strategic back-up spares and alteration of the price schedule.
27. It is argued that the 1st respondent was entitled to find that these deviations were material. It is explained that material deviation is one that affects in a substantial way the scope, quality, or performance of the works as stipulated in the tender document; or limits substantially, inconsistent with the bidding document, the procuring entity's rights or the bidder's rights under the proposed contract; or if rectified, would unfairly affect the competitive position of other bidders presenting substantially responsive bids. It is asserted that the deviations by the applicant met all three criteria. It is argued that the characterization of the deviation, by the applicant, as a "typographical error" is an attempt to trivialize a fundamental non-compliance, for a typographical error is a minor slip that does not affect the substance of the tender.
28. It is asserted that the entry of "1" instead of "14" in the price schedule, coupled with the addition of an unauthorized Column 7 in Table 3, fundamentally altered the pricing structure and the contractual scope, and the same was not a typographical error, but a material deviation. It is submitted that the test is in Republic vs. Public Procurement Administrative Review Board; Kenya Airports Authority & another (Interested Parties); Fresquare Investments Limited (Ex parte Applicant) [2026] KEHC 25 (KLR), where the court reiterated that the constitutional and statutory framework requires strict rejection of tenders that fail to meet mandatory requirements, asserting that fairness in procurement is achieved by uniform application of the rules to all bidders.
29. On the alleged illegality and error of law, particularly, the alleged failure to apply section 81 of the Public Procurement and Asset Disposal Act, it is submitted that that allegation is misconceived for several reasons. Firstly, section 81(1) of the Act confers a discretionary power, it does not impose a mandatory duty, for the procuring entity is not obliged to seek clarification in every case of ambiguity, and the decision whether to seek clarification is an evaluative judgment entrusted to the procuring entity and, on review, to the 1st respondent. Secondly, the Board was not reviewing the decision of the 3rd respondent to disqualify the applicant, on the basis that it failed to seek clarification, rather the 1st respondent was reviewing whether the decision of the 3rd respondent to disqualify was lawful, reasonable, and procedurally fair.
30. It is submitted that the 1st respondent found that the said bid contained material deviations, which rendered it non-responsive, hence there was no obligation to seek clarification, because the bid was non-responsive ab initio, for clarification, under section 81, is intended to assist in the evaluation of responsive tenders, not to cure non-responsive bids. Thirdly, it is submitted that the applicant did not demonstrate that the alleged ambiguity was "apparent" on the face of the bid. It is assured that the bid was internally inconsistent: the Form of Tender stated a total price for 14 Reachstackers, but the Price Schedule indicated a quantity of 1 for the back-up spares. It is argued that that was not an ambiguity, but a material deviation, for which a procuring entity is not required to seek clarification of a bid that is demonstrably non-responsive.
31. On the alleged misapplication of section 167(1) of the Public Procurement and Asset Disposal Act, it is submitted that the finding on limitation was directed specifically at the belated challenge to the constitutionality of Regulation 89(8) of the Public Procurement and Asset Disposal Regulations, 2020, and the 1st respondent correctly held that this challenge was time-barred because the applicant ought to have raised it within 14 days of the occurrence of the alleged breach, which was the publication of the Intention to Procure Notice on 23rd December 2025 or the issuance of the Invitation to Tender on 28th January 2026. Goldfield Insurance Brokers Limited vs. Public Procurement Administrative Review Board & 2 others [2026] KEHC 19 (KLR) is cited, where it was emphasized that statutory timelines are strictly enforced, and a bidder must not hesitate when it spots a procedural anomaly, for the 14-day clock begins to tick the moment the bidder becomes aware of the breach.
32. On the alleged failure to take into account relevant considerations, where the applicant alleges that the 1st respondent failed to take into account that the tender was restricted to 4 named original equipment manufacturers and that the interested party was not one of them, it is argued that the 1st respondent did take this into account, and found that the interested party had submitted a manufacturer’s authorization from Shanghai Port Machinery Heavy Industries Co. Limited, an original equipment manufacturer identified in the notice of intention to procure through restricted tender. It is asserted that the 1st respondent was entitled to rely on this evidence and to find that the interested party was eligible to participate.
33. On the eligibility of the interested party, it is submitted that finding on eligibility was based on the evidence before it, including the bid documents by the interested party and the manufacturer’s authorization from Shanghai Port Machinery Heavy Industries Co. Limited, and it was entitled to rely on this evidence and to find that the interested party was an authorized agent of an eligible original equipment manufacturer. It is argued that Clause 16.2(a) of the subject tender document expressly provided that a tenderer who was not the manufacturer of the goods offered to be supplied was required to submit a manufacturer's authorization using the prescribed form; while Clause 16.2(b) provided that a tenderer who is not doing business in Kenya was required to provide an undertaking that if awarded the tender, it will be represented by an agent in Kenya equipped and able to carry out the supplier's maintenance, repair, and spare parts-stocking obligations. It is submitted that the interested party complied with both requirements, for the manufacturer’s authorization, from Shanghai Port Machinery Heavy Industries Co. Limited, was presented, which duly authorized the interested party to submit its bid and to subsequently negotiate and sign the contract on its behalf, and it also submitted the requisite duly signed undertaking in accordance with Clause 16.2(b).
34. On the challenge by the applicant to the constitutionality of Regulation 89(8) of the of the Public Procurement and Asset Disposal Regulations, 2020, which purportedly allowed the 2nd and 3rd respondents to invite a bidder outside the known suppliers, was time-barred, it is submitted that the 1st respondent correctly held that this challenge ought to have been raised within the stipulated statutory timelines of 14 days from 23rd December 2025 or 28th January 2026. It is further argued that, even if Regulation 89(8) were declared unconstitutional, the procurement process remained lawfully anchored under section 102(1) of the Public Procurement and Asset Disposal Act, which allows for restricted tendering, where there is evidence that only a few suppliers exist in the market. It is asserted that the finding of the 1st respondent, on the eligibility of the interested party was, therefore, sound and well-founded.
35. On alleged irrationality and unreasonableness, it is submitted that the standard of review for irrationality and unreasonableness is the Wednesbury standard, as modified by the constitutional context of Kenya. It is argued that a decision is irrational or unreasonable if it is so unreasonable that no reasonable tribunal, properly directing itself on the law and the facts, could have arrived at it. It is submitted that the threshold is high, and the court does not substitute its own view for that of the decision-maker. It is further argued that, in the context of procurement disputes, the courts have consistently held that the 1st respondent, as a specialized statutory tribunal, is better equipped to make evaluative judgments on procurement matters, and that the court should be hesitant to assume the statutory discretion entrusted to the 1st respondent. Kenya Pipeline Ltd vs.
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