1. Vide a Chamber Summons application dated 13th November 2024, Keller Kustoms Kenya Ltd (hereafter the “Exparte Applicant” or “Keller Kustoms”) sought leave to commence judicial review proceedings against the Respondent. This Court, upon considering the said application, issued leave, which was to operate as stay and gave directions on how the matter was to proceed, noting that under section 173 of the applicable Act, it was under a duty to hear and determine the matter within 45 days.
2. Pursuant to the leave granted, the Exparte Applicant filed a Notice of Motion dated 20th November 2024, vide which it sought the following orders:-
“1. An order of certiorari to remove into this Honourable Court and quash the decision of the Public Procurement Administrative Review Board made on 4th November 2024 in Review Application No. 102 of 2024: Keller Kustoms Kenya Limited vs Kenya Ports Authority being request for review against the decision of the Accounting Officer of Kenya Ports Authority in respect of Tender Number KPA/284/2023-24/LP-PROVISION OF BOAT AND MINIBUS (25 SEATER) TRANSPORT SERVICES FOR PORT OF LAMU);
2. An order of prohibition to prohibit the 1st Interested Party from enforcing and/or executing decision of the Public Procurement Administrative Review Board made on 4th November 2024 in Review Application No. 102 of 2024: Keller Kustoms Kenya Limited vs Kenya Ports Authority being request for review against the decision of the Accounting Officer of Kenya Ports Authority in respect of Tender Number KPA/284/2023-24/LPPROVISION OF BOAT AND MINIBUS (25 SEATER) TRANSPORT SERVICES FOR PORT OF LAMU).
3. Pursuant to and upon the grant of the order of certiorari herein, there be and is hereby issued an order allowing the Applicant’s Request for Review dated 11th October 2024 filed in Review Application No. 102 of 2024: Keller Kustoms Kenya Limited vs. Kenya Ports Authority.
4. In the alternative to prayer (3) above, upon the grant of judicial review order of certiorari quashing the decision of the Public Procurement Administrative Review Board made on 4th November 2024 in Review Application No. 102 of 2024: Keller Kustoms Kenya Limited vs Kenya Ports Authority in accordance with prayer (1) above, an order of mandamus be and is hereby granted to compel the Respondent to consider on merits the Applicant’s Request for Review dated 11th October 2024 filed in Review Application No. 102 of 2024: Keller Kustoms Kenya Limited vs Kenya Ports Authority being request for review against the decision of the Accounting Officer of Kenya Ports Authority in respect of Tender Number KPA/284/2023-24/LP-PROVISION OF BOAT AND MINIBUS (25 SEATER) TRANSPORT SERVICES FOR PORT OF LAMU).
5. An order of certiorari to remove into this Honourable Court for purposes of being quashed the decision of the Public Procurement Administrative Review Board made on 4th November 2024 in Review Application No. 102 of 2024: Keller Kustoms Kenya Limited vs. Kenya Ports Authority and substitute thereof with a declaration that section 170 of the Public Procurement and Asset Disposal Act, 2015 does not require in mandatory terms or at all that the accounting officer of the procuring entity be listed/named as a respondent in a request for review.
6. An order of certiorari to remove into this Honourable Court for purposes of being quashed the decision of the Public Procurement Administrative Review Board made on 4th November 2024 in Review Application No. 102 of 2024: Keller Kustoms Kenya Limited vs. Kenya Ports Authority and substitute thereof with a declaration that Regulation 203(1) of the Public Procurement and Asset Disposal Regulations, 2020 and the Form set out in the Fourteenth Schedule of the Public Procurement and Asset Disposal Regulations, 2020 do not conflict with, violate and/or contravene section 170 of the Public Procurement and Asset Disposal Act, 2015.
7. An order of certiorari to remove into this Honourable Court for purposes of being quashed the decision of the Public Procurement Administrative Review Board made on 4th November 2024 in Review Application No. 102 of 2024: Keller Kustoms Kenya Limited vs. Kenya Ports Authority and substitute thereof with a declaration that the Applicant’s Request for Review dated 11th October 2024 filed in Review Application No. 102 of 2024: Keller Kustoms Kenya Limited vs. Kenya Ports Authority was filed in compliance with section 167(1) of the Public Procurement and Asset Disposal Act, 2015, Regulation 203(1) of the Public Procurement and Asset Disposal Regulations, 2020 and the Form set out in the Fourteenth Schedule of the Public Procurement and Asset Disposal Regulations, 2020 and therefore the same was not defective for failing to list and/or name the accounting officer of the procuring entity or the successful tenderers as respondents to the said Request for Review.
8. Costs of the proceedings be provided for.”
3. The basis upon which the application is grounded is set out in the statement dated 13th November 2024 and the Verifying Affidavit sworn by Jane Mombi Abeid on the said date. As the Statement and the Verifying Affidavit make similar averments, I shall refer to what is stated in the Statement since it is much more comprehensive.
4. The Exparte Applicant averred in the Statement that the 1st Interested Party invited suppliers to submit bids in response to Tender No KPA/284/2023-24/LP for the Provision of Boat and Minibus (25 seaters) Transport Services for Port of Lamu through an open tender method. The Exparte Applicant submitted its bid for the said tender. On 3rd October 2024, the Exparte Applicant was notified via email that its bid was unsuccessful. Being aggrieved by the said decision, the Exparte Applicant lodged a Request for Review Application No 102 of 2024; Keller Kustoms Kenyan Ltd vs Kenya Ports Authority on 11th October 2024 vide which it sought to have the said procurement process annulled and for an order that it be commenced afresh, costs, and for “any other order the Board may deem just to grant.”
5. According to the Exparte Applicant, the secretary of the Respondent notified the Managing Director of the 1st Interested Party of the filing of the Request for Review. On 8th October 2024, the 1st Interested Party filed a Memorandum of Response of even date, together with a Supporting Affidavit sworn by Mr Daniel Amuyunzu, the 1st Interested Party’s Principal Supplies Officer (Tenders). Thereafter, the Exparte Applicant filed Written Submissions dated 21st October 2024. The 1st Interested Party, on its part, filed Written Submissions on 23rd October 2024.
6. The 2nd Interested Party filed a Notice of Preliminary Objection on 23rd October 2024. The said objection was dated 22nd October 2024. The Notice of Preliminary Objection and the Request for Review were heard together on 25th October 2024.
7. On 4th November 2024, the Respondent upheld the Notice of Preliminary Objection filed by the 2nd Interested Party, struck out the Exparte Applicant’s Request for Review and allowed the subject tender to proceed to its logical and lawful conclusion. The determination of the Respondent above is the subject of this judicial review application.
8. The Exparte Applicant urges that the Respondent’s decision was not arrived at in accordance with the law. It avers that the findings that omitting to name the Accounting Officer of the 1st Interested Party as a party to the Request for Review rendered the said Request for Review incompetent was an error of law or jurisdictional error and that the said decision was not arrived at in accordance with the law and is therefore illegal.
9. The Exparte Applicant urged that Section 170(b) of the Public Procurement and Asset Disposal Act, 2015 does not provide in mandatory terms that a request for review ought to be lodged against the Accounting Officer of the Procuring Entry or which persons should be in the heading. It was urged that Section 167(1) of the Act and Regulations 203(1) of the Public Procurement and Asset Disposal Regulations 2020 made provisions for the procedure and forms to be used in lodging a request. The Exparte Applicant averred that the Respondent expected it to file a Request for Review in a manner inconsistent with the form set out in the Fourteenth Schedule of the 2020 Regulations by listing the Accounting Officer of the procuring Entry as the Respondent rather than the procuring entity itself.
10. The Exparte Applicant further stated that Mombasa High Court Judicial Review No 21 of 2019; Republic vs PPARB exparte Managing Director Kenya Ports Authority & another; Jalaram Industrial Suppliers Ltd (Interested Party) [2019]eKLR and Mombasa Court of Appeal Civil Appeal No 131 of 2018; James Oyondi t/a Betoyo Contractors & another vs Elroba Enterprises Ltd & others [2019]eKLR should not have been relied up to by the Respondent as they were both made in 2019 before the Public Procurement and Asset Disposal Regulations, 2020 were enacted which in its view made it mandatory that a party seeking review to comply with the forms set out in the Fourteenth Schedule of the 2020 Regulations.
11. It was urged that the Respondent committed an error of law by failing to distinguish the two decisions of the Courts of Record in light of the current prevailing law, which became operative in 2020 following the enactment of the Regulations and was not in existence in 2019 when the subject decisions were made.
12. The Exparte Applicant stated that the provisions of the Act must be read as a whole, conjunctively, and not disjunctively and that provisions of Part XV of the Act follow each other in a systematic, methodical and chronological manner and the same must be read and interpreted in a sequential manner.
13. The Exparte Applicant urged that it was not its duly to make the Accounting Officer of the Procuring Entity a party to the Request for Review and that it was only required to lodge a Request for Review in the manner prescribed, which it did following which the Respondent was to ensure that the Accounting Officer was to be a party through invitation/notification.
14. The Exparte Applicant stated that Respondent committed an error of law by erroneously interpreting the requirements in Section 170 of the Act as meaning that the Accounting Officer must be listed and named as a respondent in request for review which in its opinion was not the case. In the view of the Exparte Applicant, it is not the listing of the Accounting Officer of the Procuring Entity that makes it a party but rather the Invitation by the Respondent, which then gives the Accounting Officer an opportunity to respond by filing a Memorandum of Response and participating in the review as a party.
15. The Exparte Applicant urged that the Respondent acted unfairly and unreasonably by punishing it for complying with the forms and lodging its Request for Review in the prescribed manner. It was stated that having complied with the law, the Exparte Applicant should not be punished. To the extent that the Respondent, in its decision, expected the Exparte Applicant to lodge its request for review in a manner not provided for in the Act and Regulations, it was unfair and unreasonable.
16. The Exparte Applicant stated that it had a legitimate expectation that upon presenting its request for review in the manner prescribed, the Respondent would hear and determine its request on merit. This expectation was breached when its application was struck out, yet the Request for Review was presented in accordance with the law.
17. The Exparte Applicant urged that the decision of the Respondent went beyond the determination of the merit of the preliminary objection into issues that the Exparte Applicant had no opportunity to respond. This is regarding the finding that the statutory Form in the Fourteenth Schedule of the 2020 Regulation was at variance with Section 170 of the Act. It was averred that the Applicant was not given an opportunity to submit and address the said issue. To that extent, it was urged that the Exparte Applicant was condemned unheard in breach of the rules of natural justice and the Exparte Applicant’s right to fair hearing as guaranteed by Article 50 of the Constitution of Kenya, 2010, as well as to the right to fair administrative action guaranteed by Article 47 of the Constitution of Kenya, 2010.
18. For that reason, it was urged that I should allow the judicial review application and annul the impugned decision.
19. The Respondent opposed the application through a Replying Affidavit sworn by Mr James Kilaka on 2nd December 2024. Mr. Kilaka is the Acting Secretary of the Respondent.
20. In his affidavit, the deponed gave a history of the instant procurement proceedings from the date the Request for Review was filed up to 4th November 2024, when the decision was emailed to the parties. Mr Kilaka averred that the hearing took place on 24th October 2024 at 230pm. The parties and their advocates were present, and the case was heard. In its decision, the Respondent upheld the 2nd Interested Party’s Notice of Preliminary Objection and struck out the Request for Review for failing to include the Accounting Officer as a party to the proceedings as per section 170 of the Act.
21. Mr. Kilaka deposed that the Respondent first considered whether it had jurisdiction. Upon finding that it didn’t, the rest of the issues were not considered.
22. The deponent placed reliance on the decision of the High Court and Court of Appeal at Mombasa in Mombasa High Court Judicial Review No 21 of 2019; Republic vs PPARB exparte Managing Director Kenya Ports Authority & another; Jalaram Industrial Suppliers Ltd (Interested Party) [2019]eKLR and Mombasa Court of Appeal Civil Appeal No 131 of 2018; James Oyondi t/a Betoyo Contractors & another vs Elroba Enterprises Ltd & others [2019]eKLR and averred that being a lower ranking adjudicative body it had no choice but to follow the said decisions.
23. He deposed that the Regulations, which are subsidiary legislation, cannot void statutes or render them ineffective and, as such, what is provided for under the Fourteenth Schedule cannot override the express provisions of section 170 of the Act. He urged that section 170 of the Act names parties to a Request for Review in mandatory terms and that among the named parties is the Accounting Officer of the Procuring Entity.
24. Mr. Kilaka poked holes in the form in the Fourteenth Schedule stating that it had three defects to wit that:-
1. It wrongly states that the Board is the Applicant;
2. Wrongly indicates that the Procuring Entity is the Respondent; and
3. Makes no provision for the Successful Bidder to be a party to procurement proceedings.
25. The deponent acknowledged that in the past the Respondent had ruled, in its decisions, that not naming the Accounting Officer as a party to the procurement proceedings was not a fatal defect. He stated that given the authorities referred to above, it was bound to resile from the said position.
26. Regarding legitimate expectation, Mr. Kilaka stated that there could be no legitimate in respect of an irregularity. Consequently, he stated that the Exparte Applicant could not make a claim premised on a Form that is at variance with the express provisions of section 170(b) of the Act.
27. He stated that the Respondent properly addressed itself to the issues that were before it, in particular, that the variance between the Form in the Fourteenth Schedule and the provision of section 170 of the Act formed the substratum of the Preliminary Objection urged by the Exparte Applicant. In light of that, the decision reached on 4th November, 2024 was reasonable, rational and lawful.
28. Mr Kilaka deposed that they observed the rules of natural justice in the exercise of their statutory mandate under sections 28 and 173 of the Act and heard all the parties on all issues that emerged from the pleadings, cases and confidential documents submitted pursuant to section 67 of the Act.
29. In Mr Kilaka’s view, the exparte Applicant failed to demonstrate any element of illegality, irrationality, procedural impropriety and or unfairness in the manner in which the Respondent considered and interrogated the evidence, documents, pleadings and information before it arrived at its decision.
30. He thus prayed that the Notice of Motion dated 20th November 2024 be dismissed with costs. Alternatively, should this Court find merit in the application, he prayed that the matter be referred back to the Respondent for rehearing. He submitted that under section 175(7) of the Act, no costs can be ordered against the Respondent.
31. The 1st Interested Party filed a Replying Affidavit sworn by Mr. Daniel Amuyunzu 20 on 13th December 2024. Mr. Amuyunzu is the Principal Supply Officer (Tenders) of the 1st Interested Party.
32. Mr Amuyunzu deposed that based on the recommendations of the Evaluation Committee of the 1st Interested Party, which was endorsed by the Managing Director of the Procuring Entity, the tender for the provision of minibus (25 seater) transport service was awarded to Ertugrul Enterprise and Sainaj Holding Ltd. Being dissatisfied with the said decision the Applicant filed a Request for Review before the Respondent which was struck out on 4th November 2024. This decision is what gave birth to this judicial review proceeding.
33. In response to the grounds of the reference, the 1st Interested Party denied that the impugned decision was arrived at contrary to the law and was, therefore, illegal. Mr Amuyunzu averred, based on legal advice he received, that the requirement for the Accounting Officer of a procuring Entity to be a party was a mandatory requirement of the law. He deposed that the word used in the stature to wit “shall” left the Respondent with no option but to strike out the proceedings.
34. Mr Amuyunzu stated that where there is a variance between the words of a statute and the regulation, stature takes precedence. For that reason, provisions of the Public Procurement and Asset Disposal Regulations, 2020, could not override the mandatory provisions of section 170 of the Public Procurement & Asset Disposal Act.
35. The deponent stated that the form used in the Regulation was only for guidance. On the decision itself, it was submitted that the Respondent adhered to the doctrine of stare decisis, without which the administration of justice would become disorderly, law uncertain, and the public's confidence in the rule of law would be lost and or undermined. Having upheld the binding decisions of the High Court and the Court of Appeal decisions, the respondent could not be faulted, and its decision could not be said to have been arrived at illegally.
36. On whether the Respondent acted unfairly and unreasonably, the 1st Interested Party averred that it didn’t. Mr. Amuyunzu deposed that the Accounting Officer of the 1st Interested Party did not participate in the proceedings before the Respondent. The failure to include the Accounting Officer was deemed as making the Request for Review fatally defective and thus ripe only for dismissal by the Respondent.
37. Mr. Amuyunzu denied that the Exparte Applicant’s legitimate expectation was breached as the Respondent could not be expected to act against clear and mandatory provisions of the stature “just to meet the Applicant’s expectation”. He deposed that if the Respondent made a decision against the 1st Interested Party without including the Accounting Officer of the 1st Respondent, such a decision would be illegal and a violation of the principle of legality.
38. The last point addressed by Mr Amuyunzu in his affidavit was whether the exparte Applicant’s right to a fair hearing, right to fair administrative action and natural justice were violated. He stated that it was, in fact, their counsel who raised the issue of the variance between Regulations and the Act. He accused the exparte Applicant of not having rebutted the said submissions. He denied that the Exparte Applicants right were violated in any way whatsoever.
39. He thus prayed that the application be dismissed with costs.
40. Although the 2nd Interested Party entered appearance, it took no part in the proceedings.
41. The 3rd Interested Party never appeared, nor did it file any documents for or against the Judicial Review proceedings. The matter, therefore, proceeded in its absence.
42. In the directions I issued on 14th November 2024, I directed the parties to file and serve their responses and submissions within the given timelines. Although the submissions were to be highlighted on 16th December 2024, it was not until 19th December 2024 that parties made oral submissions.
43. Since the matter before me is on questions of law, it is clear that the documents filed were for all intends and purposes submissions. I shall, therefore, set out briefly the submissions of the parties in a way that will not rehash what I have stated.
44. Mr. Oluga, learned counsel for the Exparte Applicant, submitted that the Substantive Motion was filed on 20th November 2024. It is supported by the Statutory Statement dated 13th November 2024 and the Verifying Affidavit of Jane Mombi Abeid on 13th November 2024, together with the attached documents. Counsel made reference to the Written Submissions dated 16th December 2024 and Supplementary Submissions dated 18th December 2024, together with a list and bundle of authorities.
45. He submitted that upon being served with the Request for Review the 2nd Interested Party filed a Notice of Preliminary Objection. The gist of the Notice of Preliminary Objection was that the request for review was fatally defective for failing to name the Accounting Officer of the Procuring Entity as a party contrary to section 170 (b) of the Public Act.
46. He submitted that in response to the Notice of Preliminary Objection, he filed his own affidavit on 24th October 2024, which affidavit was on pages 518 to 523 of the application.
47. Mr Oluga urged that in the Request for Review, they submitted that the Board that it had no jurisdiction as it had been filed out of time. Despite raising the issue in the submissions, the Board made no mention of our Preliminary Objection and upheld the Preliminary Objection of the Respondents.
48. He urged that the said action betrayed an element of faith, illegality and irrationality. In his view, the board should have pronounced itself on the said issue. Counsel submitted that the Respondent found that the regulations are at variance with the Act. In his view, this hadn’t been pleaded nor raised by anyone, yet the Board determined it suo moto.
49. Counsel further submitted that the 1st Interested Party did not raise the issue of variance but merely restated the basic principles of law. He urged that they never mentioned that the regulations were at variance with the Act. He urged that I should quash the decision. It was further urged that the Respondent had no jurisdiction to make a declaration on variance. Mr Oluga stated that the powers of the Board are stated in section 173 of the Act and that none of them includes the power to declare regulations as being at variance with the Act.
50. In the counsel’s view, the issue before this Court was whether the request for review was fatally defective for not naming the accounting officer as a party.
51. He submitted that Section 167 of the Act refers to the manner a request is made and that this is by way of a Request for Review under Regulation 203 of the 2020 Regulations. He averred that the party named was the procuring entity, not the accounting officer.
52. He urged that the accounting officer is made a party by invitation of the Respondent. In this case, the accounting officer was invited, and he came. He, therefore, prayed that the application be allowed as prayed.
53. Ms Kagoi, learned counsel for the Respondent, submitted that they would rely on we rely on the Replying Affidavit sworn on 2nd December 2024 by James Kilaka. She submitted that they would rely on the Written Submissions dated 17th December 2024 and the list bundle of authorities dated 17th December 2024. She submitted that the Exparte Applicant commenced proceedings on 11th October 2024.
54. Counsel gave a chronology of the events. The Respondent notified the 1st Interested Party and invited them to file responses. The 2nd Interested Party filed a Preliminary Objection challenging the request for review for failing to include the accounting officer of the 1st Interested Party as a Party, which is required under section 170 of the Act. On the 18th of October, 2024, the Respondent sent a notice to all the parties. The hearing proceeded, and all parties were heard. On 4th November 2024, the Respondent delivered its decision in which it upheld the Preliminary Objection, and the request for review was struck out. All the pleadings were considered. It found it had no jurisdiction and downed its tools.
55. Counsel relied on the authorities they had supplied, particularly those in which it was held that the accounting officer of the procuring entity had to be a party to the procurement proceedings.
56. She submitted that the Respondent cannot be faulted for replying on authorities emanating from the Superior Courts.
57. She submitted that the impugned decision was rational and lawful. The Respondent did not exceed its mandate. We pray that the Notice of Motion be dismissed with costs.
58. In the alternative, she prayed that if I found the decision to be without merit, I should revert it to the Respondent as the body mandated to hear the matter.
59. Ms Nyambura, learned counsel for the 1st Interested Party, relied on the affidavit sworn on 13th December 2024 by Mr Amuyunzu and their written submissions of 17th December 2024. Counsel submitted that since the matter before the Court was a judicial review of an administrative decision, the focus should be on the process, not the merit. She urged that I determine the application based on whether the decision was legal, rational and followed the due process. She stated that what was before the Court was a refusal to consider the request for review for non-adherence with the law.
60. She submitted that the Exparte Applicant named the Kenya Ports Authority as the party to the proceedings and not the accounting officer as stipulated by the law.
61. Ms Nyambura urged that the 1st Interested Party is a creature of stature under section 3 of the Kenya Ports Authority Act. Consequently, the 1st Interested Party had to enter appearance. In her view, Section 170 of the Act clearly defined who was supposed to be a party. Counsel submitted that what the Exparte Applicant was doing in the application before the Court was giving excuses for failure to include the accounting officer. In support of her submissions, Ms Nyambura made reference to the decision of the Court in the case of Mombasa High Court Judicial Review No 21 of 2019; Republic vs PPARB exparte Managing Director Kenya Ports Authority & another; Jalaram Industrial Suppliers Ltd (Interested Party) [2019]eKLR.
62. She urged that if the drafters of the Act wanted the Interested Party to be a party they would have said so. Therefore, when faced with clear derogation by the Exparte Applicant of what the Act provides, the Respondent had no choice but to dismiss the Request for Review. If they considered the request they would have been acting unlawfully.
63. Counsel submitted that the arguments made by the Exparte Applicant were wholly unpersuasive. She thus urged me to dismiss the application with costs.
64. In response, Mr Oluga submitted that the authorities the 1st Interested Party relied upon were distinguishable. He submitted that no reason had been given for want of adherence to the authority he provided, which he stated was case number 2, his list and bundle of authorities. He wondered why the decision he provided wasn’t followed. He urged that the Respondent could not follow the decisions of the Courts blindly and was under obligation to give reasons for its actions. He stated that the decisions relied upon by the Respondent are distinguishable as they were made before the review of the rules.
65. He submitted that contrary to what was submitted, the Accounting Officer was made a party through invitation as the Respondent sent out notices to all parties.
66. Mr Oluga submitted that neither the Respondent nor the 1st Interested Party would be prejudiced if the application was allowed. For that reason, it was urged that the application filed herein be allowed.
67. I have read the application and responses and considered the parties’ oral and written submissions. At the heart of this matter are the questions of whether the decision of the Respondent to strike out the Request for Review filed by the Exparte Applicant was arrived at in accordance with the law, if the Respondent acted unfairly and unreasonably, whether the legitimate expectations of the Exparte Applicant were breached and lastly if the Exparte Applicant’s right to fair hearing and fair administrative action was denied.
68. To consider the foregoing issues, an inquiry must begin with the Constitution and the provisions of the statutes governing the procurement and prudent use of public resources.
69. Article 227 of the Constitution provides that:-
“(1) When a State organ or any other public entity contracts for goods or services, it shall do so in accordance with a system that is fair, equitable, transparent, competitive and cost-effective.
(2) An Act of Parliament shall prescribe a framework within which policies relating to procurement and asset disposal shall be implemented and may provide for all or any of the following—
(a) categories of preference in the allocation of contracts;
(b) the protection or advancement of persons, categories of persons or groups previously disadvantaged by unfair competition or discrimination;
(c) sanctions against contractors that have not performed according to professionally regulated procedures, contractual agreements or legislation; and
(d) sanctions against persons who have defaulted on their tax obligations, or have been guilty of corrupt practices or serious violations of fair employment laws and practices.
(emphasis added).
70. The foregoing provision of the Constitution must be read together with Article 201 thereof, which lists the principles of public finance in Kenya. The said Article provides that:-
“The following principles shall guide all aspects of public finance in the Republic—
(a) there shall be openness and accountability, including public participation in financial matters;
(b) the public finance system shall promote an equitable society, and in particular—
(i) the burden of taxation shall be shared fairly;
(ii) revenue raised nationally shall be shared equitably among national and county governments; and
(iii) expenditure shall promote the equitable development of the country, including by making special provision for marginalised groups and areas;
(c) the burdens and benefits of the use of resources and public borrowing shall be shared equitably between present and future generations;
(d) public money shall be used in a prudent and responsible way; and
(e) financial management shall be responsible, and fiscal reporting shall be clear.
(emphasis added)
71. My reading of the said provisions of the Constitution is that Kenyans when promulgating the Constitution for themselves, sought to have public finances and resources managed or used in a way that is prudent, transparent and accountable, fair, competitive, and cost-effective.
72. The Constitutional provisions, with respect to procurement matters, are given effect through the Public Procurement and Asset Disposal Act and the Regulations made thereunder. The said Act is described in the recital as “an Act of Parliament to give effect to Article 227 of the Constitution; to provide procedures for efficient public procurement and for asset disposal by public entities; and for connection purposes.”
73. The said Act provides that when undertaking public procurement and asset disposal, public bodies are guided by the following values and principles:-
a. The national values and principles provided for under Article 10;
b. The equality and freedom from discrimination provided for under Article 27;
c. Affirmative action;
d. Principles of integrity under the Leadership and Integrity Act;
e. Principles of Public Finance under Article 201;
f. The values and principles of public service as provided under Article 232;
g. Principles governing the procurement profession and international norms;
h. Maximization of value for money;
i. Promotion of local industry, sustainable development, and protection of environment; and
j. Promotion of citizen contractors.
74. I have found it necessary to set out the above Constitutional and statutory provisions for reasons that shall be clear later.
75. I have perused the impugned decision of the Respondent. I note that the Public Procurement Administrative Review Board heard the Preliminary Objection raised by the 2nd Interested Party and the Request for Review on merits. It is apparent from the impugned decision that the Exparte Applicant made elaborate submissions on both issues.
76. It is common ground that the Exparte Applicant did not make the Accounting Officer of the Procuring Entity a party in the proceedings before the Public Procurement Administrative Review Board. Was this a fatal omission on its part? In its ruling, the Board determined that it was. However, it was acknowledged that the Board had previously agreed to hear and went ahead to determine other similar matters even though the Accounting Officers of the Procuring Entity weren’t made parties. The Board noted that having been made aware of the decisions of the High Court and the Court of Appeal, it would no longer do so. The question then is whether, in so doing, the proceedings were tainted by illegality, which would give this Court jurisdiction to exercise its power of judicial review.
77. The counsel for the Exparte Applicant argued in very detailed submissions that there was no variance between the Rules and the provision of the Act. He urged that section 170 of the Act stated substantive law while section 167 and the Regulations provided procedural law.
78. Having looked at section 170 of the Act, which I reproduce below, I note that it uses the words “shall.” As submitted by the counsels for the Respondent and 1st interested Party, the word “shall” denotes a “command” or a mandatory requirement”. Where the said word is used a party is expected to adhere to what is provided.
79. Section 170 states that:-
“Parties to review
The parties to a review shall be—
(a) the person who requested the review;
(b) the accounting officer of a procuring entity;
(c) the tenderer notified as successful by the procuring entity; and
(d) such other persons as the Review Board may determine.”
80. In its decision, the Respondent observed that it had, in its previous determinations, heard and determined Requests for Review filed against Procuring Entities rather than the Accounting Officers. It justified its departure from the said decisions on the ground that, as an inferior tribunal, it was bound by the decision of the High Court and the Court of Appeal, which were brought to its attention.
81. This Court notes that the question of whether the Accounting Officer of a Procuring Entity is a mandatory party to a Request for Review has been the subject of several decisions of the High Court and the Court of Appeal.
82. When faced with a similar issue in Republic -vs- Public Procurement Administrative Review Board; Exparte Managing Director, Kenya Ports Authority & Another; Jalaram Industrial Suppliers Limited (Interested Party) (2019) eKLR Thande, J stated as follows:-
“15. The requirement that the accounting officer and the successful tenderer to be made parties to a request for review is both statutory and mandatory. Section 170 is couched in mandatory and express terms. It was therefore not open to the Interested Party to pick and choose against which party to file the Request for Review. In the present case, the Interested Party failed to enjoin both the accounting officer of the procuring entity and the successful tenderer as required by law. The Ex Parte Applicants therefore raised the PO challenging this omission.
16. It is well settled that parties form an integral part of the trial process and if any mandatory party listed in Section 170 of the Act is omitted in proceedings then a request for review cannot be sustained. Failure to comply with these express provisions rendered the Request for Review filed by the Interested Party incompetent. No Court or tribunal has jurisdiction to entertain an incompetent claim brought before it.”
(emphasis added)
83. A similar view was taken by E. Ogola, J in El Roba Enterprises Limited & 5 others v James Oyondi t/a Betoyo Contractors 5 others [2018] eKLR. In his judgment, the learned Judge held that:-
“In my view, there must be a reason as to why Parliament saw it fit to introduce the accounting officer of the procuring entity as a necessary party to the review. A keen reading of Section 170 of the Act reveals that the term “shall” is used. According to the Black’s Law dictionary, the term “shall” is defined as “has a duty to; more broadly, is required”. As such the provision should be read in mandatory terms that the accounting officer of a procuring entity must be a party to a review.
…
Parties form an integral part of the trial process, and if a party is omitted that ought not to be omitted, then the trial cannot be sustained. In this case, the omission of the accounting officer of the procuring entity from the applications filed before the 5th Respondent is not a procedural technicality. The Applicants (the 1st and 2nd Respondents herein) in the review applications ought to have included the accounting officer of the procuring entity in the proceedings before the 5th Respondent. The failure to do so meant that the 5th Respondent could not entertain the proceedings before it. The 5th Respondent ought to have found review applications No. 76 of 2017 and 77 of 2017 to be incompetent and dismissed the applications.”
84. The latter decision was appealed to the Court of Appeal. The said Court, upon hearing the parties thereto, held as follows in James Oyondi t/a Betoyo Contractors & another v El Roba Enterprises Limited & 8 others [2019] eKLR:-
“It is clear that whereas the repealed statute named the procuring entity as a required party to review proceedings, the current statute which replace it, the PPADA, requires that the accounting officer of the procuring entity, be the party. Like the learned Judge we are convinced that the amendment was for a purpose. Parliament in its wisdom elected to locate responsibility and capacity as far as review proceedings are concerned, on the accounting officer specifically. This, we think, is where the Board’s importation of the law of agency floundered. When the procuring entity was the required party, it would be represented in the proceedings by its officers or agents since, being incorporeal, it would only appear through its agents, though it had to be named as a party. Under the PPADA however, there is no such leeway and the requirement is explicit and the language compulsive that it is the accounting officer who is to be a party to the review proceedings. We think that the arguments advanced in an attempt to wish away a rather elementary omission with jurisdictional and competency consequences, are wholly unpersuasive. When a statute directs in express terms who ought to be parties, it is not open to a person bringing review proceedings to pick and choose, or to belittle a failure to comply.
20. In the instant case, the Request for Review was incompetent from inception for failure to enjoin mandatory parties. An incompetent request for review is for striking out and cannot be cured by amendment.”
85. I agree with the foregoing decisions. I will add that the requirement that the Accounting Officer be added as a party was deliberate. It seems to me that such a requirement was driven by the need to improve accountability and to bring ownership to the procurement proceedings so that it would be easy to tell who is to receive bouquets for successful procurement and barbs for botched procurement.
86. As the Chief Executive of the organization, the buck, in the hackneyed words of President Harry S. Truman of the United States of America, stops with the Managing Director/Accounting Officer of the Kenya Ports Authority. Where there is a possibility that a botched procurement process was done, it would only be fair for him to be made a party so that he could defend himself. That, in my view, would be consistent with his natural law rights.
87. It is clear that the decision of the Court of Appeal on this issue was quite emphatic and requires no further elucidation. I note that the two cases I have adverted to above arose from situations which were in all fours with this instant case in so far as the respective Accounting Officer had not been added as parties to the proceedings.
88. The Public Procurement Administrative Review Board is a tribunal subordinate to this Court. In my view, the Respondent is bound by the decisions of the Court of Appeal and the High Court under the doctrine of stare decisis. The said doctrine was discussed by the Supreme Court of Kenya in in the case of Gatirau Peter Munya vs Dickson Mwenda Kithinji & 2 Others [2014] eKLR, where it was held as follows:-
“Article 163 (7) of the Constitution is the embodiment of the time-hallowed common law doctrine of stare decisis. It holds that the precedents set by this Court are binding on all other Courts in the land. The application, utility and purpose of this constitutional imperative are matters already considered in several decisions of this Court: Jasbir Singh Rai v. Tarlochan Singh Rai & Others, and quite recently, in George Mike Wanjohi v. Steven Kariuki & Others Petition No. 2A of 2014. “In addition to the benchmark decisions to which this Court adverted in Wanjohi v. Kariuki (supra), regarding the importance of the doctrine of stare decisis, we would echo the dictum in Housen v Nikoaisen (2002) 2 SCR:
“‘It is fundamental to the administration of justice that the authority of decisions be scrupulously respected by all courts upon which they are binding. Without this uniform and consistent adherence, the administration of justice becomes disordered, the law becomes uncertain, and the confidence of the public in it undermined. Nothing is more important than that the law as pronounced … should be accepted and applied as our tradition requires; and even at the risk of that fallibility to which all Judges are liable, we must maintain the complete integrity of relationships between the courts’.”
89. It would appear to me that under the doctrine of stare decisis, the Respondent had no option but to follow the above decisions. Having done so, the Respondent cannot possibly be accused of acting illegally or arriving at a decision in a way that does not follow the law. The upshot of the foregoing is that I find no merit in the Exparte Applicant’s first ground. In light of the foregoing, I am unable to agree that failing to sue the accounting officer is a minor procedural technicality that can be cured by amendment.
90. Is the fact that the Regulations in force currently were promulgated in 2020 after the decisions of the High Court and the Court of Appeal were made of any import? Although counsel made elaborate submissions for the Exparte Applicant on this point, he failed to demonstrate in what way the previous Regulations differed from those of 2020. Since his point, as I understood it, was that the 2020 Regulations negated the need for the Accounting Officer to be made a party to the Request for Review, it would have been helpful for him to demonstrate how that was the case.
91. Whereas I agree with the Exparte Applicant's counsel that the Act and the Regulations must be read together, one cannot be blind to the hierarchy of the written law; Acts of Parliament are of a higher order than regulations. Regulations must thus be read to give meaning to statutory provisions and not vice versa. This is the essence of section 31(b) of the Interpretation and General Provisions Act.
92. Although it has been said that the 2020 Regulations changed the law, or at the very least modified how it should be applied, I am unable to agree that express provisions of an Act of Parliament can be amended through amendment of regulations.
93. I am guided by the decision of the Court in Republic vs Kenya School of Law & another Ex Parte Kithinji Maseka Semo & another [2019] eKLR where it was stated that:-
“78. By subjecting the ex parte applicant to the requirements under the Regulations as opposed to the category expressly provided under section 1(a) of the second schedule under which their qualifications fall, the Respondents not only ignored the express provisions of section 16, but also elevated the Regulations above the provisions of the act. As was held in Republic vs Kenya School of Law & Council of Legal Education ex parte Daniel Mwaura Marai,[63]the provisions of a subsidiary legislation can under no circumstances override or be inconsistent with any act of Parliament be it the one under which they are made or otherwise. A similar position was held in Republic v Council of Legal Education & another Ex parte Sabiha Kassamia & another [64] and Republic v Council of Legal Education & another ExParte Mount Kenya University.[65] Also relevant is Section 31 (b) of the Interpretation and General Provisions Act,[66]which provides that no subsidiary legislation shall be inconsistent with the provisions of an Act of Parliament.
79. Borrowing from the jurisprudence discussed above, I find no difficulty concluding that the provisions of the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 cannot override the express provisions of section 16 of the KSL Act, which prescribe the admissions requirements to the ATP as those stipulated in the Second Schedule to the Act. Specifically, the Regulations cannot override the provisions of section 1(a) of the second Schedule. Had Parliament desired any other qualifications to apply over and above the qualifications held by the ex parte applicants, it would have expressly provided so.”
94. Did the Respondent act unfairly and unreasonably? The Exparte Applicant argued that it used the form in the Regulation. Counsel for the Exparte Applicant urged that his client should not be penalized for complying with the law. Although this argument is persuasive to a point, I cannot help but notice that the Exparte Applicant did not list the Respondent, that is to say, the Public Procurement Administrative Review Board as the Applicant as would have been the case had it followed the form strictly. In my view, the form given in the Regulations is for the guidance of the parties and may be modified as necessary. In the circumstances I find no merit in this ground as well.
95. The Exparte Applicant urged that its legitimate expectation that its Request for Review would be heard on merit was denied. My reading of the decision of the Respondent was that it heard both the Preliminary Objection and the Request for Review on merits. That being the case, it is incorrect for the Exparte Applicant to state that it was denied its legitimate expectation that it would be heard on merit. The only thing that the Respondent failed to do was to render a decision on merits in respect of the latter. In my view, that would have been unnecessary; having determined, as it did, that the Request for Review was fatally defective, there was no need for it to undertake a fatuous exercise that served no useful purpose.
96. The foregoing notwithstanding, I agree with the submissions of the 1st Interested Party that there can be no legitimate expectation of an action contrary to the statute. See Communications Commission of Kenya & 5 others vs Royal Media Services Limited & 5 others (Petition 14, 14A, 14B & 14C of 2014 (Consolidated)) [2014] KESC 53 (KLR) (29 September 2014) (Judgment).
97. On the issue of whether the Exparte Applicant’s right to fair hearing and or fair administrative action was denied, I am unable to find that to be the case. It took part in the proceedings before the Respondent and was afforded every opportunity to present its case.
98. When the Exparte Applicant filed the substantive application before this Court, it did not rely on the alleged delay of the 2nd Interested Party to file the Notice of the Preliminary Objection. This was only raised at the submissions stage. In my view, the Exparte Applicant is bound by its pleadings. Further, as has often been said, submissions are not pleadings.
99. Raising the said issue at the submission stage does not bespeak confidence on the part of the Exparte Applicant on the merits of its judicial review application. The submissions on the part of the 1st Interested Party that the said ground was an afterthought cannot, therefore, be easily dismissed.
100. My observation above is fortified by what Magare J stated in Mwavula v Waweru t/a Antique Auctioneers Agencies & another (Civil Appeal E374 of 2023) [2024] KEHC 5988 (KLR) (24 May 2024) (Ruling) that:-
“Submissions are neither pleading nor evidence. Beautiful pleadings are akin to watching warm fire in television. It will not remove any morning chilly weather. The court of Appeal in Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another [2014] eKLR:
“Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed, there are many cases decided without hearing submissions but based only on evidence presented.”
101. I agree with the 1st Interested Party that since it raised the issue of variance, the Exparte Applicant ought to have submitted on it. I have read the Respondent's decision. It is clear that the Exparte Applicant did, in fact, submit on the issue, as is evident from the perusal of Paragraph 50 of the decision. I do not, therefore, agree with the submissions made by the Exparte Applicant that the finding that there is a variance between the provision of the Regulations and the Act (in particular, section 170 (b) was made without hearing it.
102. From the foregoing, it is clear that I have not found merit in the application. I cannot fault the Respondent for making a decision which, in my view, properly reflected the law. The decision is not illegal or irrational, or fraught with procedural impropriety. The rules of natural justice were not breached as the Exparte Applicant was afforded an opportunity to be heard. The judicial review application is thus dismissed.
103. In closing, I must state that judicial review proceedings are concerned with process and rarely with merit. I cannot fault the process in the proceedings before the Board. I am satisfied that it accorded with the law.
104. Although costs ordinarily follow the event and are awarded at the discretion of the Court, I have opted not to award costs in this matter. In my view, there is a need to encourage transparent and accountable procurement practices. Access to Courts is essential in this respect. Parties will, therefore, bear their own costs.
105. Orders accordingly.
Dated and signed at Mombasa this 30th day of December 2024. Delivered virtually via Microsoft TEAMS.
2. Pursuant to the leave granted, the Exparte Applicant filed a Notice of Motion dated 20th November 2024, vide which it sought the following orders:-
“1. An order of certiorari to remove into this Honourable Court and quash the decision of the Public Procurement Administrative Review Board made on 4th November 2024 in Review Application No. 102 of 2024: Keller Kustoms Kenya Limited vs Kenya Ports Authority being request for review against the decision of the Accounting Officer of Kenya Ports Authority in respect of Tender Number KPA/284/2023-24/LP-PROVISION OF BOAT AND MINIBUS (25 SEATER) TRANSPORT SERVICES FOR PORT OF LAMU);
2. An order of prohibition to prohibit the 1st Interested Party from enforcing and/or executing decision of the Public Procurement Administrative Review Board made on 4th November 2024 in Review Application No. 102 of 2024: Keller Kustoms Kenya Limited vs Kenya Ports Authority being request for review against the decision of the Accounting Officer of Kenya Ports Authority in respect of Tender Number KPA/284/2023-24/LPPROVISION OF BOAT AND MINIBUS (25 SEATER) TRANSPORT SERVICES FOR PORT OF LAMU).
3. Pursuant to and upon the grant of the order of certiorari herein, there be and is hereby issued an order allowing the Applicant’s Request for Review dated 11th October 2024 filed in Review Application No. 102 of 2024: Keller Kustoms Kenya Limited vs. Kenya Ports Authority.
4. In the alternative to prayer (3) above, upon the grant of judicial review order of certiorari quashing the decision of the Public Procurement Administrative Review Board made on 4th November 2024 in Review Application No. 102 of 2024: Keller Kustoms Kenya Limited vs Kenya Ports Authority in accordance with prayer (1) above, an order of mandamus be and is hereby granted to compel the Respondent to consider on merits the Applicant’s Request for Review dated 11th October 2024 filed in Review Application No. 102 of 2024: Keller Kustoms Kenya Limited vs Kenya Ports Authority being request for review against the decision of the Accounting Officer of Kenya Ports Authority in respect of Tender Number KPA/284/2023-24/LP-PROVISION OF BOAT AND MINIBUS (25 SEATER) TRANSPORT SERVICES FOR PORT OF LAMU).
5. An order of certiorari to remove into this Honourable Court for purposes of being quashed the decision of the Public Procurement Administrative Review Board made on 4th November 2024 in Review Application No. 102 of 2024: Keller Kustoms Kenya Limited vs. Kenya Ports Authority and substitute thereof with a declaration that section 170 of the Public Procurement and Asset Disposal Act, 2015 does not require in mandatory terms or at all that the accounting officer of the procuring entity be listed/named as a respondent in a request for review.
6. An order of certiorari to remove into this Honourable Court for purposes of being quashed the decision of the Public Procurement Administrative Review Board made on 4th November 2024 in Review Application No. 102 of 2024: Keller Kustoms Kenya Limited vs. Kenya Ports Authority and substitute thereof with a declaration that Regulation 203(1) of the Public Procurement and Asset Disposal Regulations, 2020 and the Form set out in the Fourteenth Schedule of the Public Procurement and Asset Disposal Regulations, 2020 do not conflict with, violate and/or contravene section 170 of the Public Procurement and Asset Disposal Act, 2015.
7. An order of certiorari to remove into this Honourable Court for purposes of being quashed the decision of the Public Procurement Administrative Review Board made on 4th November 2024 in Review Application No. 102 of 2024: Keller Kustoms Kenya Limited vs. Kenya Ports Authority and substitute thereof with a declaration that the Applicant’s Request for Review dated 11th October 2024 filed in Review Application No. 102 of 2024: Keller Kustoms Kenya Limited vs. Kenya Ports Authority was filed in compliance with section 167(1) of the Public Procurement and Asset Disposal Act, 2015, Regulation 203(1) of the Public Procurement and Asset Disposal Regulations, 2020 and the Form set out in the Fourteenth Schedule of the Public Procurement and Asset Disposal Regulations, 2020 and therefore the same was not defective for failing to list and/or name the accounting officer of the procuring entity or the successful tenderers as respondents to the said Request for Review.
8. Costs of the proceedings be provided for.”
3. The basis upon which the application is grounded is set out in the statement dated 13th November 2024 and the Verifying Affidavit sworn by Jane Mombi Abeid on the said date. As the Statement and the Verifying Affidavit make similar averments, I shall refer to what is stated in the Statement since it is much more comprehensive.
4. The Exparte Applicant averred in the Statement that the 1st Interested Party invited suppliers to submit bids in response to Tender No KPA/284/2023-24/LP for the Provision of Boat and Minibus (25 seaters) Transport Services for Port of Lamu through an open tender method. The Exparte Applicant submitted its bid for the said tender. On 3rd October 2024, the Exparte Applicant was notified via email that its bid was unsuccessful. Being aggrieved by the said decision, the Exparte Applicant lodged a Request for Review Application No 102 of 2024; Keller Kustoms Kenyan Ltd vs Kenya Ports Authority on 11th October 2024 vide which it sought to have the said procurement process annulled and for an order that it be commenced afresh, costs, and for “any other order the Board may deem just to grant.”
5. According to the Exparte Applicant, the secretary of the Respondent notified the Managing Director of the 1st Interested Party of the filing of the Request for Review. On 8th October 2024, the 1st Interested Party filed a Memorandum of Response of even date, together with a Supporting Affidavit sworn by Mr Daniel Amuyunzu, the 1st Interested Party’s Principal Supplies Officer (Tenders). Thereafter, the Exparte Applicant filed Written Submissions dated 21st October 2024. The 1st Interested Party, on its part, filed Written Submissions on 23rd October 2024.
6. The 2nd Interested Party filed a Notice of Preliminary Objection on 23rd October 2024. The said objection was dated 22nd October 2024. The Notice of Preliminary Objection and the Request for Review were heard together on 25th October 2024.
7. On 4th November 2024, the Respondent upheld the Notice of Preliminary Objection filed by the 2nd Interested Party, struck out the Exparte Applicant’s Request for Review and allowed the subject tender to proceed to its logical and lawful conclusion. The determination of the Respondent above is the subject of this judicial review application.
8. The Exparte Applicant urges that the Respondent’s decision was not arrived at in accordance with the law. It avers that the findings that omitting to name the Accounting Officer of the 1st Interested Party as a party to the Request for Review rendered the said Request for Review incompetent was an error of law or jurisdictional error and that the said decision was not arrived at in accordance with the law and is therefore illegal.
9. The Exparte Applicant urged that Section 170(b) of the Public Procurement and Asset Disposal Act, 2015 does not provide in mandatory terms that a request for review ought to be lodged against the Accounting Officer of the Procuring Entry or which persons should be in the heading. It was urged that Section 167(1) of the Act and Regulations 203(1) of the Public Procurement and Asset Disposal Regulations 2020 made provisions for the procedure and forms to be used in lodging a request. The Exparte Applicant averred that the Respondent expected it to file a Request for Review in a manner inconsistent with the form set out in the Fourteenth Schedule of the 2020 Regulations by listing the Accounting Officer of the procuring Entry as the Respondent rather than the procuring entity itself.
10. The Exparte Applicant further stated that Mombasa High Court Judicial Review No 21 of 2019; Republic vs PPARB exparte Managing Director Kenya Ports Authority & another; Jalaram Industrial Suppliers Ltd (Interested Party) [2019]eKLR and Mombasa Court of Appeal Civil Appeal No 131 of 2018; James Oyondi t/a Betoyo Contractors & another vs Elroba Enterprises Ltd & others [2019]eKLR should not have been relied up to by the Respondent as they were both made in 2019 before the Public Procurement and Asset Disposal Regulations, 2020 were enacted which in its view made it mandatory that a party seeking review to comply with the forms set out in the Fourteenth Schedule of the 2020 Regulations.
11. It was urged that the Respondent committed an error of law by failing to distinguish the two decisions of the Courts of Record in light of the current prevailing law, which became operative in 2020 following the enactment of the Regulations and was not in existence in 2019 when the subject decisions were made.
12. The Exparte Applicant stated that the provisions of the Act must be read as a whole, conjunctively, and not disjunctively and that provisions of Part XV of the Act follow each other in a systematic, methodical and chronological manner and the same must be read and interpreted in a sequential manner.
13. The Exparte Applicant urged that it was not its duly to make the Accounting Officer of the Procuring Entity a party to the Request for Review and that it was only required to lodge a Request for Review in the manner prescribed, which it did following which the Respondent was to ensure that the Accounting Officer was to be a party through invitation/notification.
14. The Exparte Applicant stated that Respondent committed an error of law by erroneously interpreting the requirements in Section 170 of the Act as meaning that the Accounting Officer must be listed and named as a respondent in request for review which in its opinion was not the case. In the view of the Exparte Applicant, it is not the listing of the Accounting Officer of the Procuring Entity that makes it a party but rather the Invitation by the Respondent, which then gives the Accounting Officer an opportunity to respond by filing a Memorandum of Response and participating in the review as a party.
15. The Exparte Applicant urged that the Respondent acted unfairly and unreasonably by punishing it for complying with the forms and lodging its Request for Review in the prescribed manner. It was stated that having complied with the law, the Exparte Applicant should not be punished. To the extent that the Respondent, in its decision, expected the Exparte Applicant to lodge its request for review in a manner not provided for in the Act and Regulations, it was unfair and unreasonable.
16. The Exparte Applicant stated that it had a legitimate expectation that upon presenting its request for review in the manner prescribed, the Respondent would hear and determine its request on merit. This expectation was breached when its application was struck out, yet the Request for Review was presented in accordance with the law.
17. The Exparte Applicant urged that the decision of the Respondent went beyond the determination of the merit of the preliminary objection into issues that the Exparte Applicant had no opportunity to respond. This is regarding the finding that the statutory Form in the Fourteenth Schedule of the 2020 Regulation was at variance with Section 170 of the Act. It was averred that the Applicant was not given an opportunity to submit and address the said issue. To that extent, it was urged that the Exparte Applicant was condemned unheard in breach of the rules of natural justice and the Exparte Applicant’s right to fair hearing as guaranteed by Article 50 of the Constitution of Kenya, 2010, as well as to the right to fair administrative action guaranteed by Article 47 of the Constitution of Kenya, 2010.
18. For that reason, it was urged that I should allow the judicial review application and annul the impugned decision.
19. The Respondent opposed the application through a Replying Affidavit sworn by Mr James Kilaka on 2nd December 2024. Mr. Kilaka is the Acting Secretary of the Respondent.
20. In his affidavit, the deponed gave a history of the instant procurement proceedings from the date the Request for Review was filed up to 4th November 2024, when the decision was emailed to the parties. Mr Kilaka averred that the hearing took place on 24th October 2024 at 230pm. The parties and their advocates were present, and the case was heard. In its decision, the Respondent upheld the 2nd Interested Party’s Notice of Preliminary Objection and struck out the Request for Review for failing to include the Accounting Officer as a party to the proceedings as per section 170 of the Act.
21. Mr. Kilaka deposed that the Respondent first considered whether it had jurisdiction. Upon finding that it didn’t, the rest of the issues were not considered.
22. The deponent placed reliance on the decision of the High Court and Court of Appeal at Mombasa in Mombasa High Court Judicial Review No 21 of 2019; Republic vs PPARB exparte Managing Director Kenya Ports Authority & another; Jalaram Industrial Suppliers Ltd (Interested Party) [2019]eKLR and Mombasa Court of Appeal Civil Appeal No 131 of 2018; James Oyondi t/a Betoyo Contractors & another vs Elroba Enterprises Ltd & others [2019]eKLR and averred that being a lower ranking adjudicative body it had no choice but to follow the said decisions.
23. He deposed that the Regulations, which are subsidiary legislation, cannot void statutes or render them ineffective and, as such, what is provided for under the Fourteenth Schedule cannot override the express provisions of section 170 of the Act. He urged that section 170 of the Act names parties to a Request for Review in mandatory terms and that among the named parties is the Accounting Officer of the Procuring Entity.
24. Mr. Kilaka poked holes in the form in the Fourteenth Schedule stating that it had three defects to wit that:-
1. It wrongly states that the Board is the Applicant;
2. Wrongly indicates that the Procuring Entity is the Respondent; and
3. Makes no provision for the Successful Bidder to be a party to procurement proceedings.
25. The deponent acknowledged that in the past the Respondent had ruled, in its decisions, that not naming the Accounting Officer as a party to the procurement proceedings was not a fatal defect. He stated that given the authorities referred to above, it was bound to resile from the said position.
26. Regarding legitimate expectation, Mr. Kilaka stated that there could be no legitimate in respect of an irregularity. Consequently, he stated that the Exparte Applicant could not make a claim premised on a Form that is at variance with the express provisions of section 170(b) of the Act.
27. He stated that the Respondent properly addressed itself to the issues that were before it, in particular, that the variance between the Form in the Fourteenth Schedule and the provision of section 170 of the Act formed the substratum of the Preliminary Objection urged by the Exparte Applicant. In light of that, the decision reached on 4th November, 2024 was reasonable, rational and lawful.
28. Mr Kilaka deposed that they observed the rules of natural justice in the exercise of their statutory mandate under sections 28 and 173 of the Act and heard all the parties on all issues that emerged from the pleadings, cases and confidential documents submitted pursuant to section 67 of the Act.
29. In Mr Kilaka’s view, the exparte Applicant failed to demonstrate any element of illegality, irrationality, procedural impropriety and or unfairness in the manner in which the Respondent considered and interrogated the evidence, documents, pleadings and information before it arrived at its decision.
30. He thus prayed that the Notice of Motion dated 20th November 2024 be dismissed with costs. Alternatively, should this Court find merit in the application, he prayed that the matter be referred back to the Respondent for rehearing. He submitted that under section 175(7) of the Act, no costs can be ordered against the Respondent.
31. The 1st Interested Party filed a Replying Affidavit sworn by Mr. Daniel Amuyunzu 20 on 13th December 2024. Mr. Amuyunzu is the Principal Supply Officer (Tenders) of the 1st Interested Party.
32. Mr Amuyunzu deposed that based on the recommendations of the Evaluation Committee of the 1st Interested Party, which was endorsed by the Managing Director of the Procuring Entity, the tender for the provision of minibus (25 seater) transport service was awarded to Ertugrul Enterprise and Sainaj Holding Ltd. Being dissatisfied with the said decision the Applicant filed a Request for Review before the Respondent which was struck out on 4th November 2024. This decision is what gave birth to this judicial review proceeding.
33. In response to the grounds of the reference, the 1st Interested Party denied that the impugned decision was arrived at contrary to the law and was, therefore, illegal. Mr Amuyunzu averred, based on legal advice he received, that the requirement for the Accounting Officer of a procuring Entity to be a party was a mandatory requirement of the law. He deposed that the word used in the stature to wit “shall” left the Respondent with no option but to strike out the proceedings.
34. Mr Amuyunzu stated that where there is a variance between the words of a statute and the regulation, stature takes precedence. For that reason, provisions of the Public Procurement and Asset Disposal Regulations, 2020, could not override the mandatory provisions of section 170 of the Public Procurement & Asset Disposal Act.
35. The deponent stated that the form used in the Regulation was only for guidance. On the decision itself, it was submitted that the Respondent adhered to the doctrine of stare decisis, without which the administration of justice would become disorderly, law uncertain, and the public's confidence in the rule of law would be lost and or undermined. Having upheld the binding decisions of the High Court and the Court of Appeal decisions, the respondent could not be faulted, and its decision could not be said to have been arrived at illegally.
36. On whether the Respondent acted unfairly and unreasonably, the 1st Interested Party averred that it didn’t. Mr. Amuyunzu deposed that the Accounting Officer of the 1st Interested Party did not participate in the proceedings before the Respondent. The failure to include the Accounting Officer was deemed as making the Request for Review fatally defective and thus ripe only for dismissal by the Respondent.
37. Mr. Amuyunzu denied that the Exparte Applicant’s legitimate expectation was breached as the Respondent could not be expected to act against clear and mandatory provisions of the stature “just to meet the Applicant’s expectation”. He deposed that if the Respondent made a decision against the 1st Interested Party without including the Accounting Officer of the 1st Respondent, such a decision would be illegal and a violation of the principle of legality.
38. The last point addressed by Mr Amuyunzu in his affidavit was whether the exparte Applicant’s right to a fair hearing, right to fair administrative action and natural justice were violated. He stated that it was, in fact, their counsel who raised the issue of the variance between Regulations and the Act. He accused the exparte Applicant of not having rebutted the said submissions. He denied that the Exparte Applicants right were violated in any way whatsoever.
39. He thus prayed that the application be dismissed with costs.
40. Although the 2nd Interested Party entered appearance, it took no part in the proceedings.
41. The 3rd Interested Party never appeared, nor did it file any documents for or against the Judicial Review proceedings. The matter, therefore, proceeded in its absence.
42. In the directions I issued on 14th November 2024, I directed the parties to file and serve their responses and submissions within the given timelines. Although the submissions were to be highlighted on 16th December 2024, it was not until 19th December 2024 that parties made oral submissions.
43. Since the matter before me is on questions of law, it is clear that the documents filed were for all intends and purposes submissions. I shall, therefore, set out briefly the submissions of the parties in a way that will not rehash what I have stated.
44. Mr. Oluga, learned counsel for the Exparte Applicant, submitted that the Substantive Motion was filed on 20th November 2024. It is supported by the Statutory Statement dated 13th November 2024 and the Verifying Affidavit of Jane Mombi Abeid on 13th November 2024, together with the attached documents. Counsel made reference to the Written Submissions dated 16th December 2024 and Supplementary Submissions dated 18th December 2024, together with a list and bundle of authorities.
45. He submitted that upon being served with the Request for Review the 2nd Interested Party filed a Notice of Preliminary Objection. The gist of the Notice of Preliminary Objection was that the request for review was fatally defective for failing to name the Accounting Officer of the Procuring Entity as a party contrary to section 170 (b) of the Public Act.
46. He submitted that in response to the Notice of Preliminary Objection, he filed his own affidavit on 24th October 2024, which affidavit was on pages 518 to 523 of the application.
47. Mr Oluga urged that in the Request for Review, they submitted that the Board that it had no jurisdiction as it had been filed out of time. Despite raising the issue in the submissions, the Board made no mention of our Preliminary Objection and upheld the Preliminary Objection of the Respondents.
48. He urged that the said action betrayed an element of faith, illegality and irrationality. In his view, the board should have pronounced itself on the said issue. Counsel submitted that the Respondent found that the regulations are at variance with the Act. In his view, this hadn’t been pleaded nor raised by anyone, yet the Board determined it suo moto.
49. Counsel further submitted that the 1st Interested Party did not raise the issue of variance but merely restated the basic principles of law. He urged that they never mentioned that the regulations were at variance with the Act. He urged that I should quash the decision. It was further urged that the Respondent had no jurisdiction to make a declaration on variance. Mr Oluga stated that the powers of the Board are stated in section 173 of the Act and that none of them includes the power to declare regulations as being at variance with the Act.
50. In the counsel’s view, the issue before this Court was whether the request for review was fatally defective for not naming the accounting officer as a party.
51. He submitted that Section 167 of the Act refers to the manner a request is made and that this is by way of a Request for Review under Regulation 203 of the 2020 Regulations. He averred that the party named was the procuring entity, not the accounting officer.
52. He urged that the accounting officer is made a party by invitation of the Respondent. In this case, the accounting officer was invited, and he came. He, therefore, prayed that the application be allowed as prayed.
53. Ms Kagoi, learned counsel for the Respondent, submitted that they would rely on we rely on the Replying Affidavit sworn on 2nd December 2024 by James Kilaka. She submitted that they would rely on the Written Submissions dated 17th December 2024 and the list bundle of authorities dated 17th December 2024. She submitted that the Exparte Applicant commenced proceedings on 11th October 2024.
54. Counsel gave a chronology of the events. The Respondent notified the 1st Interested Party and invited them to file responses. The 2nd Interested Party filed a Preliminary Objection challenging the request for review for failing to include the accounting officer of the 1st Interested Party as a Party, which is required under section 170 of the Act. On the 18th of October, 2024, the Respondent sent a notice to all the parties. The hearing proceeded, and all parties were heard. On 4th November 2024, the Respondent delivered its decision in which it upheld the Preliminary Objection, and the request for review was struck out. All the pleadings were considered. It found it had no jurisdiction and downed its tools.
55. Counsel relied on the authorities they had supplied, particularly those in which it was held that the accounting officer of the procuring entity had to be a party to the procurement proceedings.
56. She submitted that the Respondent cannot be faulted for replying on authorities emanating from the Superior Courts.
57. She submitted that the impugned decision was rational and lawful. The Respondent did not exceed its mandate. We pray that the Notice of Motion be dismissed with costs.
58. In the alternative, she prayed that if I found the decision to be without merit, I should revert it to the Respondent as the body mandated to hear the matter.
59. Ms Nyambura, learned counsel for the 1st Interested Party, relied on the affidavit sworn on 13th December 2024 by Mr Amuyunzu and their written submissions of 17th December 2024. Counsel submitted that since the matter before the Court was a judicial review of an administrative decision, the focus should be on the process, not the merit. She urged that I determine the application based on whether the decision was legal, rational and followed the due process. She stated that what was before the Court was a refusal to consider the request for review for non-adherence with the law.
60. She submitted that the Exparte Applicant named the Kenya Ports Authority as the party to the proceedings and not the accounting officer as stipulated by the law.
61. Ms Nyambura urged that the 1st Interested Party is a creature of stature under section 3 of the Kenya Ports Authority Act. Consequently, the 1st Interested Party had to enter appearance. In her view, Section 170 of the Act clearly defined who was supposed to be a party. Counsel submitted that what the Exparte Applicant was doing in the application before the Court was giving excuses for failure to include the accounting officer. In support of her submissions, Ms Nyambura made reference to the decision of the Court in the case of Mombasa High Court Judicial Review No 21 of 2019; Republic vs PPARB exparte Managing Director Kenya Ports Authority & another; Jalaram Industrial Suppliers Ltd (Interested Party) [2019]eKLR.
62. She urged that if the drafters of the Act wanted the Interested Party to be a party they would have said so. Therefore, when faced with clear derogation by the Exparte Applicant of what the Act provides, the Respondent had no choice but to dismiss the Request for Review. If they considered the request they would have been acting unlawfully.
63. Counsel submitted that the arguments made by the Exparte Applicant were wholly unpersuasive. She thus urged me to dismiss the application with costs.
64. In response, Mr Oluga submitted that the authorities the 1st Interested Party relied upon were distinguishable. He submitted that no reason had been given for want of adherence to the authority he provided, which he stated was case number 2, his list and bundle of authorities. He wondered why the decision he provided wasn’t followed. He urged that the Respondent could not follow the decisions of the Courts blindly and was under obligation to give reasons for its actions. He stated that the decisions relied upon by the Respondent are distinguishable as they were made before the review of the rules.
65. He submitted that contrary to what was submitted, the Accounting Officer was made a party through invitation as the Respondent sent out notices to all parties.
66. Mr Oluga submitted that neither the Respondent nor the 1st Interested Party would be prejudiced if the application was allowed. For that reason, it was urged that the application filed herein be allowed.
67. I have read the application and responses and considered the parties’ oral and written submissions. At the heart of this matter are the questions of whether the decision of the Respondent to strike out the Request for Review filed by the Exparte Applicant was arrived at in accordance with the law, if the Respondent acted unfairly and unreasonably, whether the legitimate expectations of the Exparte Applicant were breached and lastly if the Exparte Applicant’s right to fair hearing and fair administrative action was denied.
68. To consider the foregoing issues, an inquiry must begin with the Constitution and the provisions of the statutes governing the procurement and prudent use of public resources.
69. Article 227 of the Constitution provides that:-
“(1) When a State organ or any other public entity contracts for goods or services, it shall do so in accordance with a system that is fair, equitable, transparent, competitive and cost-effective.
(2) An Act of Parliament shall prescribe a framework within which policies relating to procurement and asset disposal shall be implemented and may provide for all or any of the following—
(a) categories of preference in the allocation of contracts;
(b) the protection or advancement of persons, categories of persons or groups previously disadvantaged by unfair competition or discrimination;
(c) sanctions against contractors that have not performed according to professionally regulated procedures, contractual agreements or legislation; and
(d) sanctions against persons who have defaulted on their tax obligations, or have been guilty of corrupt practices or serious violations of fair employment laws and practices.
(emphasis added).
70. The foregoing provision of the Constitution must be read together with Article 201 thereof, which lists the principles of public finance in Kenya. The said Article provides that:-
“The following principles shall guide all aspects of public finance in the Republic—
(a) there shall be openness and accountability, including public participation in financial matters;
(b) the public finance system shall promote an equitable society, and in particular—
(i) the burden of taxation shall be shared fairly;
(ii) revenue raised nationally shall be shared equitably among national and county governments; and
(iii) expenditure shall promote the equitable development of the country, including by making special provision for marginalised groups and areas;
(c) the burdens and benefits of the use of resources and public borrowing shall be shared equitably between present and future generations;
(d) public money shall be used in a prudent and responsible way; and
(e) financial management shall be responsible, and fiscal reporting shall be clear.
(emphasis added)
71. My reading of the said provisions of the Constitution is that Kenyans when promulgating the Constitution for themselves, sought to have public finances and resources managed or used in a way that is prudent, transparent and accountable, fair, competitive, and cost-effective.
72. The Constitutional provisions, with respect to procurement matters, are given effect through the Public Procurement and Asset Disposal Act and the Regulations made thereunder. The said Act is described in the recital as “an Act of Parliament to give effect to Article 227 of the Constitution; to provide procedures for efficient public procurement and for asset disposal by public entities; and for connection purposes.”
73. The said Act provides that when undertaking public procurement and asset disposal, public bodies are guided by the following values and principles:-
a. The national values and principles provided for under Article 10;
b. The equality and freedom from discrimination provided for under Article 27;
c. Affirmative action;
d. Principles of integrity under the Leadership and Integrity Act;
e. Principles of Public Finance under Article 201;
f. The values and principles of public service as provided under Article 232;
g. Principles governing the procurement profession and international norms;
h. Maximization of value for money;
i. Promotion of local industry, sustainable development, and protection of environment; and
j. Promotion of citizen contractors.
74. I have found it necessary to set out the above Constitutional and statutory provisions for reasons that shall be clear later.
75. I have perused the impugned decision of the Respondent. I note that the Public Procurement Administrative Review Board heard the Preliminary Objection raised by the 2nd Interested Party and the Request for Review on merits. It is apparent from the impugned decision that the Exparte Applicant made elaborate submissions on both issues.
76. It is common ground that the Exparte Applicant did not make the Accounting Officer of the Procuring Entity a party in the proceedings before the Public Procurement Administrative Review Board. Was this a fatal omission on its part? In its ruling, the Board determined that it was. However, it was acknowledged that the Board had previously agreed to hear and went ahead to determine other similar matters even though the Accounting Officers of the Procuring Entity weren’t made parties. The Board noted that having been made aware of the decisions of the High Court and the Court of Appeal, it would no longer do so. The question then is whether, in so doing, the proceedings were tainted by illegality, which would give this Court jurisdiction to exercise its power of judicial review.
77. The counsel for the Exparte Applicant argued in very detailed submissions that there was no variance between the Rules and the provision of the Act. He urged that section 170 of the Act stated substantive law while section 167 and the Regulations provided procedural law.
78. Having looked at section 170 of the Act, which I reproduce below, I note that it uses the words “shall.” As submitted by the counsels for the Respondent and 1st interested Party, the word “shall” denotes a “command” or a mandatory requirement”. Where the said word is used a party is expected to adhere to what is provided.
79. Section 170 states that:-
“Parties to review
The parties to a review shall be—
(a) the person who requested the review;
(b) the accounting officer of a procuring entity;
(c) the tenderer notified as successful by the procuring entity; and
(d) such other persons as the Review Board may determine.”
80. In its decision, the Respondent observed that it had, in its previous determinations, heard and determined Requests for Review filed against Procuring Entities rather than the Accounting Officers. It justified its departure from the said decisions on the ground that, as an inferior tribunal, it was bound by the decision of the High Court and the Court of Appeal, which were brought to its attention.
81. This Court notes that the question of whether the Accounting Officer of a Procuring Entity is a mandatory party to a Request for Review has been the subject of several decisions of the High Court and the Court of Appeal.
82. When faced with a similar issue in Republic -vs- Public Procurement Administrative Review Board; Exparte Managing Director, Kenya Ports Authority & Another; Jalaram Industrial Suppliers Limited (Interested Party) (2019) eKLR Thande, J stated as follows:-
“15. The requirement that the accounting officer and the successful tenderer to be made parties to a request for review is both statutory and mandatory. Section 170 is couched in mandatory and express terms. It was therefore not open to the Interested Party to pick and choose against which party to file the Request for Review. In the present case, the Interested Party failed to enjoin both the accounting officer of the procuring entity and the successful tenderer as required by law. The Ex Parte Applicants therefore raised the PO challenging this omission.
16. It is well settled that parties form an integral part of the trial process and if any mandatory party listed in Section 170 of the Act is omitted in proceedings then a request for review cannot be sustained. Failure to comply with these express provisions rendered the Request for Review filed by the Interested Party incompetent. No Court or tribunal has jurisdiction to entertain an incompetent claim brought before it.”
(emphasis added)
83. A similar view was taken by E. Ogola, J in El Roba Enterprises Limited & 5 others v James Oyondi t/a Betoyo Contractors 5 others [2018] eKLR. In his judgment, the learned Judge held that:-
“In my view, there must be a reason as to why Parliament saw it fit to introduce the accounting officer of the procuring entity as a necessary party to the review. A keen reading of Section 170 of the Act reveals that the term “shall” is used. According to the Black’s Law dictionary, the term “shall” is defined as “has a duty to; more broadly, is required”. As such the provision should be read in mandatory terms that the accounting officer of a procuring entity must be a party to a review.
…
Parties form an integral part of the trial process, and if a party is omitted that ought not to be omitted, then the trial cannot be sustained. In this case, the omission of the accounting officer of the procuring entity from the applications filed before the 5th Respondent is not a procedural technicality. The Applicants (the 1st and 2nd Respondents herein) in the review applications ought to have included the accounting officer of the procuring entity in the proceedings before the 5th Respondent. The failure to do so meant that the 5th Respondent could not entertain the proceedings before it. The 5th Respondent ought to have found review applications No. 76 of 2017 and 77 of 2017 to be incompetent and dismissed the applications.”
84. The latter decision was appealed to the Court of Appeal. The said Court, upon hearing the parties thereto, held as follows in James Oyondi t/a Betoyo Contractors & another v El Roba Enterprises Limited & 8 others [2019] eKLR:-
“It is clear that whereas the repealed statute named the procuring entity as a required party to review proceedings, the current statute which replace it, the PPADA, requires that the accounting officer of the procuring entity, be the party. Like the learned Judge we are convinced that the amendment was for a purpose. Parliament in its wisdom elected to locate responsibility and capacity as far as review proceedings are concerned, on the accounting officer specifically. This, we think, is where the Board’s importation of the law of agency floundered. When the procuring entity was the required party, it would be represented in the proceedings by its officers or agents since, being incorporeal, it would only appear through its agents, though it had to be named as a party. Under the PPADA however, there is no such leeway and the requirement is explicit and the language compulsive that it is the accounting officer who is to be a party to the review proceedings. We think that the arguments advanced in an attempt to wish away a rather elementary omission with jurisdictional and competency consequences, are wholly unpersuasive. When a statute directs in express terms who ought to be parties, it is not open to a person bringing review proceedings to pick and choose, or to belittle a failure to comply.
20. In the instant case, the Request for Review was incompetent from inception for failure to enjoin mandatory parties. An incompetent request for review is for striking out and cannot be cured by amendment.”
85. I agree with the foregoing decisions. I will add that the requirement that the Accounting Officer be added as a party was deliberate. It seems to me that such a requirement was driven by the need to improve accountability and to bring ownership to the procurement proceedings so that it would be easy to tell who is to receive bouquets for successful procurement and barbs for botched procurement.
86. As the Chief Executive of the organization, the buck, in the hackneyed words of President Harry S. Truman of the United States of America, stops with the Managing Director/Accounting Officer of the Kenya Ports Authority. Where there is a possibility that a botched procurement process was done, it would only be fair for him to be made a party so that he could defend himself. That, in my view, would be consistent with his natural law rights.
87. It is clear that the decision of the Court of Appeal on this issue was quite emphatic and requires no further elucidation. I note that the two cases I have adverted to above arose from situations which were in all fours with this instant case in so far as the respective Accounting Officer had not been added as parties to the proceedings.
88. The Public Procurement Administrative Review Board is a tribunal subordinate to this Court. In my view, the Respondent is bound by the decisions of the Court of Appeal and the High Court under the doctrine of stare decisis. The said doctrine was discussed by the Supreme Court of Kenya in in the case of Gatirau Peter Munya vs Dickson Mwenda Kithinji & 2 Others [2014] eKLR, where it was held as follows:-
“Article 163 (7) of the Constitution is the embodiment of the time-hallowed common law doctrine of stare decisis. It holds that the precedents set by this Court are binding on all other Courts in the land. The application, utility and purpose of this constitutional imperative are matters already considered in several decisions of this Court: Jasbir Singh Rai v. Tarlochan Singh Rai & Others, and quite recently, in George Mike Wanjohi v. Steven Kariuki & Others Petition No. 2A of 2014. “In addition to the benchmark decisions to which this Court adverted in Wanjohi v. Kariuki (supra), regarding the importance of the doctrine of stare decisis, we would echo the dictum in Housen v Nikoaisen (2002) 2 SCR:
“‘It is fundamental to the administration of justice that the authority of decisions be scrupulously respected by all courts upon which they are binding. Without this uniform and consistent adherence, the administration of justice becomes disordered, the law becomes uncertain, and the confidence of the public in it undermined. Nothing is more important than that the law as pronounced … should be accepted and applied as our tradition requires; and even at the risk of that fallibility to which all Judges are liable, we must maintain the complete integrity of relationships between the courts’.”
89. It would appear to me that under the doctrine of stare decisis, the Respondent had no option but to follow the above decisions. Having done so, the Respondent cannot possibly be accused of acting illegally or arriving at a decision in a way that does not follow the law. The upshot of the foregoing is that I find no merit in the Exparte Applicant’s first ground. In light of the foregoing, I am unable to agree that failing to sue the accounting officer is a minor procedural technicality that can be cured by amendment.
90. Is the fact that the Regulations in force currently were promulgated in 2020 after the decisions of the High Court and the Court of Appeal were made of any import? Although counsel made elaborate submissions for the Exparte Applicant on this point, he failed to demonstrate in what way the previous Regulations differed from those of 2020. Since his point, as I understood it, was that the 2020 Regulations negated the need for the Accounting Officer to be made a party to the Request for Review, it would have been helpful for him to demonstrate how that was the case.
91. Whereas I agree with the Exparte Applicant's counsel that the Act and the Regulations must be read together, one cannot be blind to the hierarchy of the written law; Acts of Parliament are of a higher order than regulations. Regulations must thus be read to give meaning to statutory provisions and not vice versa. This is the essence of section 31(b) of the Interpretation and General Provisions Act.
92. Although it has been said that the 2020 Regulations changed the law, or at the very least modified how it should be applied, I am unable to agree that express provisions of an Act of Parliament can be amended through amendment of regulations.
93. I am guided by the decision of the Court in Republic vs Kenya School of Law & another Ex Parte Kithinji Maseka Semo & another [2019] eKLR where it was stated that:-
“78. By subjecting the ex parte applicant to the requirements under the Regulations as opposed to the category expressly provided under section 1(a) of the second schedule under which their qualifications fall, the Respondents not only ignored the express provisions of section 16, but also elevated the Regulations above the provisions of the act. As was held in Republic vs Kenya School of Law & Council of Legal Education ex parte Daniel Mwaura Marai,[63]the provisions of a subsidiary legislation can under no circumstances override or be inconsistent with any act of Parliament be it the one under which they are made or otherwise. A similar position was held in Republic v Council of Legal Education & another Ex parte Sabiha Kassamia & another [64] and Republic v Council of Legal Education & another ExParte Mount Kenya University.[65] Also relevant is Section 31 (b) of the Interpretation and General Provisions Act,[66]which provides that no subsidiary legislation shall be inconsistent with the provisions of an Act of Parliament.
79. Borrowing from the jurisprudence discussed above, I find no difficulty concluding that the provisions of the Legal Education (Accreditation and Quality Assurance) Regulations, 2016 cannot override the express provisions of section 16 of the KSL Act, which prescribe the admissions requirements to the ATP as those stipulated in the Second Schedule to the Act. Specifically, the Regulations cannot override the provisions of section 1(a) of the second Schedule. Had Parliament desired any other qualifications to apply over and above the qualifications held by the ex parte applicants, it would have expressly provided so.”
94. Did the Respondent act unfairly and unreasonably? The Exparte Applicant argued that it used the form in the Regulation. Counsel for the Exparte Applicant urged that his client should not be penalized for complying with the law. Although this argument is persuasive to a point, I cannot help but notice that the Exparte Applicant did not list the Respondent, that is to say, the Public Procurement Administrative Review Board as the Applicant as would have been the case had it followed the form strictly. In my view, the form given in the Regulations is for the guidance of the parties and may be modified as necessary. In the circumstances I find no merit in this ground as well.
95. The Exparte Applicant urged that its legitimate expectation that its Request for Review would be heard on merit was denied. My reading of the decision of the Respondent was that it heard both the Preliminary Objection and the Request for Review on merits. That being the case, it is incorrect for the Exparte Applicant to state that it was denied its legitimate expectation that it would be heard on merit. The only thing that the Respondent failed to do was to render a decision on merits in respect of the latter. In my view, that would have been unnecessary; having determined, as it did, that the Request for Review was fatally defective, there was no need for it to undertake a fatuous exercise that served no useful purpose.
96. The foregoing notwithstanding, I agree with the submissions of the 1st Interested Party that there can be no legitimate expectation of an action contrary to the statute. See Communications Commission of Kenya & 5 others vs Royal Media Services Limited & 5 others (Petition 14, 14A, 14B & 14C of 2014 (Consolidated)) [2014] KESC 53 (KLR) (29 September 2014) (Judgment).
97. On the issue of whether the Exparte Applicant’s right to fair hearing and or fair administrative action was denied, I am unable to find that to be the case. It took part in the proceedings before the Respondent and was afforded every opportunity to present its case.
98. When the Exparte Applicant filed the substantive application before this Court, it did not rely on the alleged delay of the 2nd Interested Party to file the Notice of the Preliminary Objection. This was only raised at the submissions stage. In my view, the Exparte Applicant is bound by its pleadings. Further, as has often been said, submissions are not pleadings.
99. Raising the said issue at the submission stage does not bespeak confidence on the part of the Exparte Applicant on the merits of its judicial review application. The submissions on the part of the 1st Interested Party that the said ground was an afterthought cannot, therefore, be easily dismissed.
100. My observation above is fortified by what Magare J stated in Mwavula v Waweru t/a Antique Auctioneers Agencies & another (Civil Appeal E374 of 2023) [2024] KEHC 5988 (KLR) (24 May 2024) (Ruling) that:-
“Submissions are neither pleading nor evidence. Beautiful pleadings are akin to watching warm fire in television. It will not remove any morning chilly weather. The court of Appeal in Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another [2014] eKLR:
“Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed, there are many cases decided without hearing submissions but based only on evidence presented.”
101. I agree with the 1st Interested Party that since it raised the issue of variance, the Exparte Applicant ought to have submitted on it. I have read the Respondent's decision. It is clear that the Exparte Applicant did, in fact, submit on the issue, as is evident from the perusal of Paragraph 50 of the decision. I do not, therefore, agree with the submissions made by the Exparte Applicant that the finding that there is a variance between the provision of the Regulations and the Act (in particular, section 170 (b) was made without hearing it.
102. From the foregoing, it is clear that I have not found merit in the application. I cannot fault the Respondent for making a decision which, in my view, properly reflected the law. The decision is not illegal or irrational, or fraught with procedural impropriety. The rules of natural justice were not breached as the Exparte Applicant was afforded an opportunity to be heard. The judicial review application is thus dismissed.
103. In closing, I must state that judicial review proceedings are concerned with process and rarely with merit. I cannot fault the process in the proceedings before the Board. I am satisfied that it accorded with the law.
104. Although costs ordinarily follow the event and are awarded at the discretion of the Court, I have opted not to award costs in this matter. In my view, there is a need to encourage transparent and accountable procurement practices. Access to Courts is essential in this respect. Parties will, therefore, bear their own costs.
105. Orders accordingly.
Dated and signed at Mombasa this 30th day of December 2024. Delivered virtually via Microsoft TEAMS.