REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MILIMANI
JUDICIAL REVIEW DIVISION
JUDICIAL REVIEW APPLICATION NO. E049 OF 2026
IN THE MATTER OF: AN APPLICATION FOR JUDICIAL REVIEW SEEKING AN ORDER OF CERTIORARI
AND
IN THE MATTER OF: KENGEN TENDER NO. KGN-BDD-016-2024 FOR PROCUREMENT OF CONSULTANCY SERVICES, OLKARIA VII GEOTHERMAL POWER PROJECT
AND
IN THE MATTER OF: ARTICLES 23(3) (f) OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF: SECTIONS 8 AND 9 OF THE LAW REFORM ACT
BETWEEN
REPUBLIC…………………..……………………………..………APPLICANT
VERSUS
THE PUBLIC PROCUREMENT ADMINISTRATIVE
REVIEW BOARD………………………………………………RESPONDENT
AND
SINTECNICA ENGINEERING S.R.L
IN JOINT VENTURE WITH STEAM S.R.L…….1 ST INTERESTED PARTY
ELC ELECTROCONSULT S.P.A………………..2 ND INTERESTED PARTY
EUROPEAN INVESTMENT BANK (EIB)..……. 3 RD INTERESTED PARTY
AND
THE ACCOUNTING OFFICER, KENYA ELECTRICITY
GENERATING COMPANY PLC (KENGEN)...1 ST EX-PARTE APPLICANT
KENYA ELECTRICITY
GENERATING COMPANY PLC (KENGEN).. 2 ND EX-PARTE APPLICANT
JUDGMENT
1. Pursuant to leave granted in JR MISC Application No. E026 of 2026 on 27 th February, 2026, the exparte applicants herein, who are the accounting officer of the procuring entity and the procuring entity, respectively, seek the following orders:
a. An order of CERTIORARI to remove and bring to the High Court for purposes of Quashing the Respondent’s Decision dated and delivered on 18 th February, 2026 in Request for Review Application Number 18 of 2026 on Tender No. KGN-BDD-016-2024;
b. Costs of the application to be awarded.
2. The substantive Notice of motion is predicated on the grounds set out on the face thereof reiterating the grounds contained in the Statutory Statement dated 26 th February 2026 and Verifying Affidavit of Vincent Nyamweya Mamboleo sworn on 26 th February 2026 both lodged with the Exparte Chamber Summons for Leave dated 26 th February, 2026.
3. The exparte applicants’ case is that they advertised Tender-No-KGN-BDD-016-2024 in the Dailies of September 24, 2024 in which it was clearly indicated that Kengen, the procuring entity was in the process of receiving financing from European Investment Bank (EIB ) and intended to use part of the funds thereof for payments towards consultancy services for supervision and management of Olkaria VI Geothermal Power Project.
4. The procuring entity asserts that the advertisement indicated that these services would be procured under the Financier’s Guidelines “Guide to Procurement for Projects Financed by the EIB” available online on EIB’s Website https://www.eib.org/en/publications/guide-to-procurement.htm ; and that the EIB Procurement Framework Clause 3.5 and Annex 2 - International Procurement Procedures – Item 6 incorporated into the tender documents, the requirement for Financier’s review at every stage/step is concurrence through issuance of a Letter of No Objection as a mandatory condition precedent to award and contract execution.
5. That the procuring entity undertook the procurement process and wrote to the Financier EIB for a No objection but never received the same hence it decided to terminate the procurement process of awarding the tender to the successful bidder as the project-consultancy was conditional upon the financier giving no objection since it was the financier that would release the funds that would be utilized for the project.
6. It is averred that the Respondent Review Board heard a Request for Review Application. No. 18 of 2026 and in a decision rendered on 18 th February 2026, it cancelled and set aside the termination letters and directed the 1 st Applicant to proceed with the procurement process to its lawful conclusion.
7. The exparte applicants contend that in cancelling the termination of the procurement process, the Respondent Review Board committed an error of law in fundamentally misapprehending the nature and legal effect of the No Objection requirement. That the No Objection is not a complaint mechanism and does not arise under Clause 1.8.2; but is a contractual condition precedent expressly incorporated into the Tender Documents under Clause 3.5 of the EIB Guide and Annex 2, Item 6 thereof, which governs the progression of the procurement process itself.
8. According to the exparte applicants, the Respondent erred in conflating these two distinct legal instruments and in treating the mandatory No Objection requirement as a matter falling within the scope of national remedy mechanism; and that the practical consequence of this error was that the Respondent proceeded to issue orders whose implementation is contractually precluded by the very Tender Documents under which the procurement was conducted.
9. The Respondent Review Board is also accused of committing an error of law by failing to properly adjudicate upon the Ex Parte Applicants’ Preliminary Objection regarding jurisdiction; specifically, that pursuant to Clause 1.8.2 of the European Investment Bank (EIB) Guide to Procurement , the Board is divested of jurisdiction to entertain complaints against the Financier, as such grievances are subject to the exclusive internal complaints architecture of the EIB.
10. The exparte applicants contend that by proceeding to interrogate, critique and effectively make determinations on the Financier’s position and internal procurement requirements, the Respondent exceeded its mandate and substituted its own assessment for the clear applicable contractual/financier requirements expressly incorporated in the tender documents. It therefore asserts that the Respondent misdirected itself in law by failing to give effect to the Tender Documents and the donor-funded procurement framework which make the European Investment Bank (EIB) ‘No Objection’ a mandatory condition precedent to lawful progression to award/contracting steps and to disbursement of the donor financing component for this Tender.
11. The exparte applicants assert that the decision dated February 18, 2026, is legally untenable and irrational as it directs the completion of the tender process in total disregard of the mandatory requirement for a "No Objection" letter; which directive, it is urged, constitutes an arbitrary revision of the tender conditions previously established by the procuring entity and the donor.
12. The impugned decision is further said to be tainted with illegality and irrationality in that the Board improperly exercised its discretion by treating a mandatory donor ‘no objection’ as an irrelevant or non-binding consideration; and that by by-bypassing this contractual prerequisite, the Review Board reached a conclusion that no reasonable tribunal, properly directing itself to the law and the facts, could have reached.
13. The Respondent, in its decision of 18th February 2026, is said to have exceeded its jurisdiction by usurping the statutory powers of the Procuring Entity. That the findings were based on speculative assumptions and lacked an evidentiary foundation regarding compliance with Sections 44 and 53 of the Act and Regulation 71 of the Public Procurement and Asset Disposal Regulations, 2020. Critically, the exparte applicants contend that the Respondent failed to consider the material fact that the tender was expressly contingent upon contemplated donor funding from the European Investment Bank (EIB) .
14. The Respondent is alleged to have misdirected itself in law and in fact by conflating the overall project-level co-financing arrangements for the Olkaria VII Geothermal Power Plant with the specific financing structure applicable to this Tender. That at paragraphs 121 and 126 of the impugned Decision, the Respondent found that because the broader Olkaria VII project was to be co-financed by multiple parties including EIB, JICA and KenGen itself, then the refusal of EIB’s No Objection did not establish that funds were unavailable for the specific consultancy contract under this Tender. This reasoning, it is contended, is flawed, since the Tender No. KGN-BDD-016-2024 was structured, advertised and conducted exclusively under and subject to the EIB financing component and the EIB procurement framework. The Tender Documents, including the preface and Section II Special Provisions Clause 1.1.2, expressly identify EIB as the intended financier for the contemplated consultancy services contract and make any contractual commitment arising from the Tender expressly subject to readiness of disbursements and compliance with applicable EIB financing conditions.
15. It is averred that the existence of JICA financing or KenGen’s own financing for other components of the broader project is legally irrelevant to whether this specific consultancy contract could lawfully proceed in the absence of EIB’s concurrence. The Respondent’s failure to draw this distinction, it is asserted, constitutes a material error of law and fact
16. The exparte applicant further accuse the Respondent for allegedly misdirecting itself by conflating overall project-level co-financing with the financing for this specific Tender/consultancy contract, and by treating the existence of other project funding sources as proof of funding availability for this Tender notwithstanding the withheld donor ‘No Objection.’
17. The impugned decision is said to be illegal, irrational and unreasonable and violates the principles of legality and fair administrative action, as it directs and/or exposes the Ex Parte Applicants to proceed with a procurement process in a manner that cannot lawfully be implemented absent the mandatory donor ‘No Objection’ and associated donor financing, thereby occasioning illegality, unlawful public commitments and audit risk.
18. The impugned decision dated 18th February 2026 is said to be legally untenable and irrational as it directs the completion of the tender process in total disregard of the mandatory requirement for a ‘No Objection’ letter, which requirement is expressly incorporated into the Tender Documents and remains unsatisfied. The exparte applicants assert that it is a well-established principle of Kenyan law that courts and statutory tribunals ought not to make orders that are incapable of implementation or enforcement, as to do so would be an exercise in futility. That the Respondent’s orders directing the Ex Parte Applicants to proceed with the procurement to its lawful conclusion cannot be lawfully implemented in the absence of the Financier’s No Objection, which is a condition precedent to award and contract execution under the Tender Documents.
19. Further, that by directing a public entity to proceed towards contractual commitments in the absence of confirmed donor financing, the impugned Decision is contrary to the principles of sound public financial management enshrined in Article 201 of the Constitution of Kenya, which binds all public entities in the management of public funds. They rely on the High Court decision in Republic v. PPARB & 3 Others Ex Parte Astral Industrial Alliance (Astronea) Ltd [2024] eKLR which is said to have recognized the practical and legal effect of a financier’s refusal to concur on the viability of a donor-funded procurement process and urged that no reasonable tribunal, properly directing itself to the law and the facts, could have issued orders of the nature impugned herein in the circumstances prevailing.
20. According to the exparte applicants, the Review Board committed an error of law by finding that there was insufficient evidence to justify the termination of the subject tender under Section 63 of the Act; a finding that is wholly untenable in light of the express, clear, uncontroverted email from the Donor dated 8th January 2026 as cited in paragraph 112 of the Impugned Decision categorically declining to issue a Letter of No Objection.
21. The Respondent is said to have improperly applied the statutory requirement in Section 63 of the PPADA by adopting an unduly formalistic approach while discounting the Mandatory precondition of donor concurrence that rendered award and contract execution untenable/impossible to perform under the governing framework.
22. The Respondent is alleged to have exceeded its jurisdiction and acted contrary to the principles of fair administrative action under Article 47 of the Constitution and the Fair Administrative Action Act, 2015 by proceeding to criticize, discount and effectively override the Financier’s internal determination as expressed in EIB’s email of 8 th January 2026. In this regard, the exparte applicants impugn the Respondent’s decision at paragraphs 114 to 116 where it is said to have characterized EIB’s position as acting in bad taste and applying undue pressure by holding that EIB could not approbate and reprobate by disregarding determinations of statutory bodies. That in making these findings, the Respondent substituted its own assessment for that of the Financier on a matter that is within the Financier’s exclusive contractual discretion under the Tender Documents, and did so without the procedural foundation necessary to sustain such findings. These findings, according to the exparte applicants, are tainted with procedural irregularity and constitute an excess of the Respondent’s statutory mandate under Section 173 of the Act.
23. The Respondent is also accused of committing an error of fact by failing to consider material evidence that was placed before it. That at paragraph 132 of the impugned decision, the Respondent found that it had not had sight of any written report submitted to the Public Procurement Regulatory Authority notifying the latter of the termination of the subject tender in accordance with Section 63(2) and (3) of the Act, which finding, according to the exparte applicants, is contrary to the evidence. The Ex Parte Applicants claim that they included within the confidential bundle of documents submitted to the Respondent, pursuant to Section 67(3)(e) of the Act, a portal acknowledgement and confirmation screenshot evidencing the upload of all documentation relating to the procurement proceedings, including the termination notification, on the official Public Procurement Information Portal accessible at https://www.tenders.go.ke/tenders/275952 , in compliance with PPRA Circular No. 4/2022 dated 1st July 2022, which said Circular is said to expressly direct procuring entities to submit all such documentation via the PPRA portal and provides that portal submission constitutes the prescribed mode of compliance. It is therefore asserted that the Respondent’s failure to engage with this evidence, or its inadvertent omission to consider it, constitutes a reviewable error of fact and renders the finding at paragraph 132 unsustainable.
24. According to the exparte applicants, the Respondent failed to consider relevant considerations and/or took into account irrelevant considerations, and thereby violated the Ex Parte Applicants’ rights to fair administrative action and lawful, rational and procedurally fair decision-making under Article 47 of the Constitution and the Fair Administrative Action Act.
25. Further and without prejudice to the foregoing, the Respondent is alleged to have erred in its assessment of the substantive requirements for termination under Section 63(1) of the Act. That Respondent’s finding at paragraph 126 that the Ex Parte Applicants had failed to provide sufficient evidence justifying termination, notwithstanding the existence before it of the uncontroverted email from the Financier dated 8th January 2026 categorically declining to issue the No Objection, together with the correspondence between the parties evidencing the basis for that refusal. That the said email constituted clear, direct and unambiguous evidence of the unavailability of financing for the subject tender, which goes to the heart of the ground of termination relied upon. That the Respondent’s characterization of this evidence as insufficient was unreasonable and unsupported by any reasoning in the impugned Decision
26. Finally, it is alleged that the Respondent committed an error of fact and/or failed to consider material evidence by finding that no termination report/notification had been submitted to the Public Procurement Regulatory Authority, despite evidence of submission through the official PPIP/Authority portal having been placed before it.
The exparte applicants’ Further Affidavit
27. In the further affidavit sworn by Vincent Nyamweya Mamboleo on 27 th February, 2026, the exparte applicants in response to the Respondent’s Replying Affidavit sworn by Philemon Kiprop dated 4 th March 2026 and the 1 st Interested Party’s Replying Affidavit sworn by Matteo Quaia dated 3 rd March 2026 deny the contents thereof and maintain their position as earlier pleaded.
28. They maintain that contrary to paragraph 3 of the 1 st Interested Party’s Replying Affidavit, the documents sought to be impugned and/or struck out were already part of the record before the Review Board. In particular, the tender advertisement, the complete tender document together with its addenda, Professional opinion, re-evaluation report, the letter of cancellation of tender, the EIB correspondence and the screenshot of the Public Procurement Information Portal PPIP portal evidencing submission/uploading of the Termination notification/report to Public Procurement Regulatory Authority were all supplied in the Ex Parte Applicants’ bundle of confidential documents in compliance with the Board’s requirement. The deponent annexed a copy of the Notification of Appeal dated 28 th January 2026 and the accompanying Form 5 setting out the documents required from the Procuring Entity as “VNM-2.”
29. It was further deposed that the EIB procurement guidelines were annexed to the Ex Parte Applicants’ Replying Affidavit dated 1 st February 2026 filed before the Review Board in Review No.18 of 2026 and that the same appear at pages 755–858 of the Ex Parte Applicants’ bundle in this Judicial Review Application. Accordingly, the said documents were, according to the exparte applicants, properly before the Review Board and are properly before this Court and do not constitute extraneous or fresh material.
30. In response to paragraphs 4, 5, 6, 7, 8 and 9 of the 1 st Interested Party’s Replying Affidavit and to the corresponding averments in the Respondent’s Replying Affidavit, exparte applicants’ deponent reiterates his depositions in the Verifying Affidavit and Statutory Statement that the Ex Parte Applicants’ Preliminary Objection on jurisdiction, founded on Clause 1.8.2 of the EIB procurement guidelines was not considered or conclusively determined by the Review Board. That no express and reasoned finding was made on whether the Review Board had jurisdiction to entertain complaints against, or make pronouncements upon, the acts and decisions of the Financier/Donor, the 3 rd Interested Party herein.
31. The exparte applicants further maintain that the Review Board analyzed, criticised and made determinations touching on the Financier’s position regarding the Letter of No Objection, thereby effectively venturing into a domain that the Ex Parte Applicants had expressly challenged as lying outside the Review Board’s remit.
32. In response to paragraphs 10, 11, 12, 13, 14, 15 and 16 of the 1 st Interested Party’s Replying Affidavit, the deponent deposes that neither the Ex Parte Applicants, the Respondent, nor the 1 st Interested Party could compel, influence, or otherwise dictate the issuance or non-issuance of the Letter of No Objection by the Financier. That the Ex Parte Applicants having submitted the requisite re-evaluation report and recommendation in accordance with the tender process, the ultimate decision whether or not to grant concurrence rested solely within the discretion of the European Investment Bank (EIB) under the applicable tender documents and procurement framework.
33. Further in response to paragraphs 17 and 18 of the 1 st Interested Party’s Replying Affidavit, the deponent avers that the effect of the impugned decision was to disregard and/or rewrite the tender requirements by ignoring the mandatory requirement for a Letter of No Objection, which requirement was expressly provided for in the tender documents and the EIB procurement guidelines forming part of the governing procurement framework.
34. In response to paragraphs 19, 20 and 21 of the 1 st Interested Party’s Replying Affidavit, it was averred that the Ex Parte Applicants’ letter notifying the Interested Parties of the termination of tender, when read together with the EIB correspondence and other supporting documentation, sufficiently disclosed the basis for the termination, namely the absence of the Financier’s concurrence and consequently, an unavailability of the contemplated financing for the procurement process to proceed lawfully to award and implementation.
35. In response to paragraphs 22 and 23 of the 1 st Interested Party’s Replying Affidavit, it was averred that even if the impugned decision were to be treated as valid, the procurement process still cannot lawfully proceed in the absence of the mandatory Letter of No Objection. In those circumstances, it was deposed that the Review Board’s decision creates both a practical and legal stalemate, leaving the tender process in abeyance and exposes the Ex Parte Applicants to increased risk, liability and potential unlawful obligations without the tender contemplated financing. It is for that reason that the impugned decision is stated to be incapable of implementation and is, in effect, futile.
36. In response to paragraphs 24 and 25 of the 1 st Interested Party’s Replying Affidavit, it was averred that the Ex Parte Applicants duly complied with the requirements of Section 63 of the Public Procurement and Asset Disposal Act, including the requirement of notification to the Public Procurement Regulatory Authority. That such notification was made through the Public Procurement Information Portal (PPIP) in accordance with PPRA Circular No. 4/2022. That the documents submitted included: the procurement plan, notification of cancellation of tender to bidders, professional opinion, tender cancellation report, evaluation report and matters arising memorandum.
37. It was further deposed that in addition to the notification made through the PPIP portal, the European Investment Bank (EIB) was formally notified of the cancellation of the tender vide a letter dated 20 th January 2026, a copy of which is contained in the Ex Parte Applicants’ bundle of exhibits at pages 278 – 279 which also formed part of the Confidential documents submitted to the Review Board.
38. In response to paragraphs 26, 27, 28 and 29 of the 1 st Interested Party’s Replying Affidavit, it was deposed that the Ex Parte Applicants were entitled to rely on the confidential documents filed before the Review Board, those documents being integral to the procurement process and protected under the applicable statutory framework. That during the hearing before the Review Board and in the impugned Review Board’s decision, the Respondent acknowledged the Ex Parte Applicants’ confidential bundle and thus, the same formed part of the material before it.
39. Further, that the Respondent’s Replying Affidavit sworn by Philemon Kiprop on 4 th March 2026 confirms that the Board ventured into matters reserved to the Financier/Donor by interrogating the procedure, reasons and basis upon which the EIB declined to issue the Letter of No Objection. That the Respondent expressly adopts the Board’s position that the EIB ought to have deferred to Kenya’s municipal legal framework, could not “approbate and reprobate,” and acted in “bad taste” by questioning the Board and the courts. According to the exparte applicants, those were not neutral observations on the conduct of the Ex Parte Applicants, but substantive determinations on the Financier’s decision and contractual position. In so doing, the Board is said to have exceeded the limits of its mandate under sections 167 and 173 of the PPADA 2015.
40. The exparte applicants maintain in their response that the impugned decision is unreasonable, legally untenable and incapable of implementation because it purports to compel continuation of a procurement process in defiance of a mandatory financier precondition.
The Ex Parte Applicants' Written Submissions
1. Top of Form
Bottom of Form
41. In support of the substantive notice of motion, the exparte applicants filed written submissions dated 5 th March, 2026 and framed the following issues for determination:
a) Whether the Board misdirected itself in law by disregarding the Tender Documents and the EIB Guide which made financier non-objection a mandatory precondition to lawful progression to award and contract execution.
b) Whether the Board exceeded jurisdiction by effectively reviewing, criticizing and overriding the Bank's due diligence decision under a framework that reserved complaints against Bank action to the Bank's own complaint architecture.
c) Whether the Board took into account irrelevant considerations and failed to take into account relevant considerations, contrary to Article 47, the Fair Administrative Action Act and settled judicial review principles.
d) Whether the Board's order directing completion of the procurement process was irrational, unlawful and incapable of implementation because it exposed the Applicants to an unfunded and unauthorized public commitment.
42. In resolving the above issues, the exparte applicants wholly relied on the grounds in support of the motion, as set out in the Statutory Statement, Verifying Affidavit and Further Affidavit of Vincent Nyamweya Mamboleo. They also adopted their Submissions that were lodged before the Board as annexed to the Verifying Affidavit at pages 859 – 869 of the Ex-parte Bundle of Exhibits of the Record in the present matter.
43. On what judicial review is concerned with, reliance was placed on the often-cited case of Municipal Council of Mombasa v Republic & Umoja Consultants Ltd [2002] eKLR arguing that judicial revie wis not an appellate jurisdiction and therefore the court is not concerned with the merits of the decision but the with the decision-making process.
44. Further submission is that judicial review in Kenya is now anchored in the Constitution under Article 47 and the Fair Administrative Action Act, and that in Judicial Service Commission v Mbalu Mutava & another [2015] eKLR and Suchan Investment Ltd v Ministry of National Heritage & Culture & 3 others [2016] eKLR , the courts make clear that legality, rationality, reasonableness, proportionality and attention to relevant considerations are all squarely within the Court's remit.
45. Further submission was made citing Section 7(2) of the Fair Administrative Action Act and arguing that the impugned decision is reviewable where a mandatory and material procedure or condition was not complied with; where the decision was materially influenced by an error of law; where relevant considerations were ignored; where the decision was not rationally connected to the information before the decision-maker; where it was unreasonable; or where it amounted to an abuse of power.
46. On whether the Board misdirected itself in law by disregarding the Tender Documents and the EIB Guide which made financier non-objection a mandatory precondition to lawful progression to award and contract execution , it was submitted that Section 80 of the PPADA requires evaluation and comparison of tenders using the procedures and criteria set out in the tender documents and Section 86 requires award in accordance with the prescribed framework. That the Board's statutory powers under Section 173 are wide, but not a license to re-write the tender architecture or to neutralize an express financing condition written into the Tender itself.
47. In the instant proceedings, it was submitted that the Tender Documents did not merely mention EIB in passing but expressly identified EIB as the financier for the consultancy services contract, subjected any contractual commitment to readiness of disbursement, preserved EIB monitoring and no-objection and incorporated Guidelines, providing that evaluation outcomes and the proposed award must obtain the Bank's non-objection.
48. That these were not optional administrative courtesies but conditions built into the procurement architecture itself as shown in the Tender Preface contained at pages 778, 779, 665, 49 and 220; Special Provision clause 1.1.2 contained at pages 795 and 31; General Provision clauses 1.2.1 and 1.2.3 contained at page 782, 18 and 221; EIB Guide section 3.5.1 and Annex 2 contained at pages 831, 842 – 843, 242 and 253 - 254 respectively of the Ex-parte Bundle of Exhibits.
49. It was submitted that the Board’s directive to the Procuring entity to proceed with the procurement to its lawful conclusion after the Bank had withheld the mandatory no-objection was a legal contradiction and that a tribunal cannot order the performance of a step that the controlling procurement documents and financing framework prohibit from being taken in the absence of prior financier concurrence. The Board is therefore accused of misdirecting itself by treating a mandatory no-objection as dispensable.
50. It was submitted that in any event, the Respondent's and the 1st Interested Party's Replying Affidavits do not answer that contradiction but accept that the no-objection was required and that it was withheld, their argument being that simply, the Board did not 'disregard' the requirement. In the view of the exparte applicants, the Board’s directive despite there being a no objection letter had the legal effect of the order treating the no-objection as non-dispositive. Labels canno
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IN THE HIGH COURT OF KENYA AT MILIMANI
JUDICIAL REVIEW DIVISION
JUDICIAL REVIEW APPLICATION NO. E049 OF 2026
IN THE MATTER OF: AN APPLICATION FOR JUDICIAL REVIEW SEEKING AN ORDER OF CERTIORARI
AND
IN THE MATTER OF: KENGEN TENDER NO. KGN-BDD-016-2024 FOR PROCUREMENT OF CONSULTANCY SERVICES, OLKARIA VII GEOTHERMAL POWER PROJECT
AND
IN THE MATTER OF: ARTICLES 23(3) (f) OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF: SECTIONS 8 AND 9 OF THE LAW REFORM ACT
BETWEEN
REPUBLIC…………………..……………………………..………APPLICANT
VERSUS
THE PUBLIC PROCUREMENT ADMINISTRATIVE
REVIEW BOARD………………………………………………RESPONDENT
AND
SINTECNICA ENGINEERING S.R.L
IN JOINT VENTURE WITH STEAM S.R.L…….1 ST INTERESTED PARTY
ELC ELECTROCONSULT S.P.A………………..2 ND INTERESTED PARTY
EUROPEAN INVESTMENT BANK (EIB)..……. 3 RD INTERESTED PARTY
AND
THE ACCOUNTING OFFICER, KENYA ELECTRICITY
GENERATING COMPANY PLC (KENGEN)...1 ST EX-PARTE APPLICANT
KENYA ELECTRICITY
GENERATING COMPANY PLC (KENGEN).. 2 ND EX-PARTE APPLICANT
JUDGMENT
1. Pursuant to leave granted in JR MISC Application No. E026 of 2026 on 27 th February, 2026, the exparte applicants herein, who are the accounting officer of the procuring entity and the procuring entity, respectively, seek the following orders:
a. An order of CERTIORARI to remove and bring to the High Court for purposes of Quashing the Respondent’s Decision dated and delivered on 18 th February, 2026 in Request for Review Application Number 18 of 2026 on Tender No. KGN-BDD-016-2024;
b. Costs of the application to be awarded.
2. The substantive Notice of motion is predicated on the grounds set out on the face thereof reiterating the grounds contained in the Statutory Statement dated 26 th February 2026 and Verifying Affidavit of Vincent Nyamweya Mamboleo sworn on 26 th February 2026 both lodged with the Exparte Chamber Summons for Leave dated 26 th February, 2026.
3. The exparte applicants’ case is that they advertised Tender-No-KGN-BDD-016-2024 in the Dailies of September 24, 2024 in which it was clearly indicated that Kengen, the procuring entity was in the process of receiving financing from European Investment Bank (EIB ) and intended to use part of the funds thereof for payments towards consultancy services for supervision and management of Olkaria VI Geothermal Power Project.
4. The procuring entity asserts that the advertisement indicated that these services would be procured under the Financier’s Guidelines “Guide to Procurement for Projects Financed by the EIB” available online on EIB’s Website https://www.eib.org/en/publications/guide-to-procurement.htm ; and that the EIB Procurement Framework Clause 3.5 and Annex 2 - International Procurement Procedures – Item 6 incorporated into the tender documents, the requirement for Financier’s review at every stage/step is concurrence through issuance of a Letter of No Objection as a mandatory condition precedent to award and contract execution.
5. That the procuring entity undertook the procurement process and wrote to the Financier EIB for a No objection but never received the same hence it decided to terminate the procurement process of awarding the tender to the successful bidder as the project-consultancy was conditional upon the financier giving no objection since it was the financier that would release the funds that would be utilized for the project.
6. It is averred that the Respondent Review Board heard a Request for Review Application. No. 18 of 2026 and in a decision rendered on 18 th February 2026, it cancelled and set aside the termination letters and directed the 1 st Applicant to proceed with the procurement process to its lawful conclusion.
7. The exparte applicants contend that in cancelling the termination of the procurement process, the Respondent Review Board committed an error of law in fundamentally misapprehending the nature and legal effect of the No Objection requirement. That the No Objection is not a complaint mechanism and does not arise under Clause 1.8.2; but is a contractual condition precedent expressly incorporated into the Tender Documents under Clause 3.5 of the EIB Guide and Annex 2, Item 6 thereof, which governs the progression of the procurement process itself.
8. According to the exparte applicants, the Respondent erred in conflating these two distinct legal instruments and in treating the mandatory No Objection requirement as a matter falling within the scope of national remedy mechanism; and that the practical consequence of this error was that the Respondent proceeded to issue orders whose implementation is contractually precluded by the very Tender Documents under which the procurement was conducted.
9. The Respondent Review Board is also accused of committing an error of law by failing to properly adjudicate upon the Ex Parte Applicants’ Preliminary Objection regarding jurisdiction; specifically, that pursuant to Clause 1.8.2 of the European Investment Bank (EIB) Guide to Procurement , the Board is divested of jurisdiction to entertain complaints against the Financier, as such grievances are subject to the exclusive internal complaints architecture of the EIB.
10. The exparte applicants contend that by proceeding to interrogate, critique and effectively make determinations on the Financier’s position and internal procurement requirements, the Respondent exceeded its mandate and substituted its own assessment for the clear applicable contractual/financier requirements expressly incorporated in the tender documents. It therefore asserts that the Respondent misdirected itself in law by failing to give effect to the Tender Documents and the donor-funded procurement framework which make the European Investment Bank (EIB) ‘No Objection’ a mandatory condition precedent to lawful progression to award/contracting steps and to disbursement of the donor financing component for this Tender.
11. The exparte applicants assert that the decision dated February 18, 2026, is legally untenable and irrational as it directs the completion of the tender process in total disregard of the mandatory requirement for a "No Objection" letter; which directive, it is urged, constitutes an arbitrary revision of the tender conditions previously established by the procuring entity and the donor.
12. The impugned decision is further said to be tainted with illegality and irrationality in that the Board improperly exercised its discretion by treating a mandatory donor ‘no objection’ as an irrelevant or non-binding consideration; and that by by-bypassing this contractual prerequisite, the Review Board reached a conclusion that no reasonable tribunal, properly directing itself to the law and the facts, could have reached.
13. The Respondent, in its decision of 18th February 2026, is said to have exceeded its jurisdiction by usurping the statutory powers of the Procuring Entity. That the findings were based on speculative assumptions and lacked an evidentiary foundation regarding compliance with Sections 44 and 53 of the Act and Regulation 71 of the Public Procurement and Asset Disposal Regulations, 2020. Critically, the exparte applicants contend that the Respondent failed to consider the material fact that the tender was expressly contingent upon contemplated donor funding from the European Investment Bank (EIB) .
14. The Respondent is alleged to have misdirected itself in law and in fact by conflating the overall project-level co-financing arrangements for the Olkaria VII Geothermal Power Plant with the specific financing structure applicable to this Tender. That at paragraphs 121 and 126 of the impugned Decision, the Respondent found that because the broader Olkaria VII project was to be co-financed by multiple parties including EIB, JICA and KenGen itself, then the refusal of EIB’s No Objection did not establish that funds were unavailable for the specific consultancy contract under this Tender. This reasoning, it is contended, is flawed, since the Tender No. KGN-BDD-016-2024 was structured, advertised and conducted exclusively under and subject to the EIB financing component and the EIB procurement framework. The Tender Documents, including the preface and Section II Special Provisions Clause 1.1.2, expressly identify EIB as the intended financier for the contemplated consultancy services contract and make any contractual commitment arising from the Tender expressly subject to readiness of disbursements and compliance with applicable EIB financing conditions.
15. It is averred that the existence of JICA financing or KenGen’s own financing for other components of the broader project is legally irrelevant to whether this specific consultancy contract could lawfully proceed in the absence of EIB’s concurrence. The Respondent’s failure to draw this distinction, it is asserted, constitutes a material error of law and fact
16. The exparte applicant further accuse the Respondent for allegedly misdirecting itself by conflating overall project-level co-financing with the financing for this specific Tender/consultancy contract, and by treating the existence of other project funding sources as proof of funding availability for this Tender notwithstanding the withheld donor ‘No Objection.’
17. The impugned decision is said to be illegal, irrational and unreasonable and violates the principles of legality and fair administrative action, as it directs and/or exposes the Ex Parte Applicants to proceed with a procurement process in a manner that cannot lawfully be implemented absent the mandatory donor ‘No Objection’ and associated donor financing, thereby occasioning illegality, unlawful public commitments and audit risk.
18. The impugned decision dated 18th February 2026 is said to be legally untenable and irrational as it directs the completion of the tender process in total disregard of the mandatory requirement for a ‘No Objection’ letter, which requirement is expressly incorporated into the Tender Documents and remains unsatisfied. The exparte applicants assert that it is a well-established principle of Kenyan law that courts and statutory tribunals ought not to make orders that are incapable of implementation or enforcement, as to do so would be an exercise in futility. That the Respondent’s orders directing the Ex Parte Applicants to proceed with the procurement to its lawful conclusion cannot be lawfully implemented in the absence of the Financier’s No Objection, which is a condition precedent to award and contract execution under the Tender Documents.
19. Further, that by directing a public entity to proceed towards contractual commitments in the absence of confirmed donor financing, the impugned Decision is contrary to the principles of sound public financial management enshrined in Article 201 of the Constitution of Kenya, which binds all public entities in the management of public funds. They rely on the High Court decision in Republic v. PPARB & 3 Others Ex Parte Astral Industrial Alliance (Astronea) Ltd [2024] eKLR which is said to have recognized the practical and legal effect of a financier’s refusal to concur on the viability of a donor-funded procurement process and urged that no reasonable tribunal, properly directing itself to the law and the facts, could have issued orders of the nature impugned herein in the circumstances prevailing.
20. According to the exparte applicants, the Review Board committed an error of law by finding that there was insufficient evidence to justify the termination of the subject tender under Section 63 of the Act; a finding that is wholly untenable in light of the express, clear, uncontroverted email from the Donor dated 8th January 2026 as cited in paragraph 112 of the Impugned Decision categorically declining to issue a Letter of No Objection.
21. The Respondent is said to have improperly applied the statutory requirement in Section 63 of the PPADA by adopting an unduly formalistic approach while discounting the Mandatory precondition of donor concurrence that rendered award and contract execution untenable/impossible to perform under the governing framework.
22. The Respondent is alleged to have exceeded its jurisdiction and acted contrary to the principles of fair administrative action under Article 47 of the Constitution and the Fair Administrative Action Act, 2015 by proceeding to criticize, discount and effectively override the Financier’s internal determination as expressed in EIB’s email of 8 th January 2026. In this regard, the exparte applicants impugn the Respondent’s decision at paragraphs 114 to 116 where it is said to have characterized EIB’s position as acting in bad taste and applying undue pressure by holding that EIB could not approbate and reprobate by disregarding determinations of statutory bodies. That in making these findings, the Respondent substituted its own assessment for that of the Financier on a matter that is within the Financier’s exclusive contractual discretion under the Tender Documents, and did so without the procedural foundation necessary to sustain such findings. These findings, according to the exparte applicants, are tainted with procedural irregularity and constitute an excess of the Respondent’s statutory mandate under Section 173 of the Act.
23. The Respondent is also accused of committing an error of fact by failing to consider material evidence that was placed before it. That at paragraph 132 of the impugned decision, the Respondent found that it had not had sight of any written report submitted to the Public Procurement Regulatory Authority notifying the latter of the termination of the subject tender in accordance with Section 63(2) and (3) of the Act, which finding, according to the exparte applicants, is contrary to the evidence. The Ex Parte Applicants claim that they included within the confidential bundle of documents submitted to the Respondent, pursuant to Section 67(3)(e) of the Act, a portal acknowledgement and confirmation screenshot evidencing the upload of all documentation relating to the procurement proceedings, including the termination notification, on the official Public Procurement Information Portal accessible at https://www.tenders.go.ke/tenders/275952 , in compliance with PPRA Circular No. 4/2022 dated 1st July 2022, which said Circular is said to expressly direct procuring entities to submit all such documentation via the PPRA portal and provides that portal submission constitutes the prescribed mode of compliance. It is therefore asserted that the Respondent’s failure to engage with this evidence, or its inadvertent omission to consider it, constitutes a reviewable error of fact and renders the finding at paragraph 132 unsustainable.
24. According to the exparte applicants, the Respondent failed to consider relevant considerations and/or took into account irrelevant considerations, and thereby violated the Ex Parte Applicants’ rights to fair administrative action and lawful, rational and procedurally fair decision-making under Article 47 of the Constitution and the Fair Administrative Action Act.
25. Further and without prejudice to the foregoing, the Respondent is alleged to have erred in its assessment of the substantive requirements for termination under Section 63(1) of the Act. That Respondent’s finding at paragraph 126 that the Ex Parte Applicants had failed to provide sufficient evidence justifying termination, notwithstanding the existence before it of the uncontroverted email from the Financier dated 8th January 2026 categorically declining to issue the No Objection, together with the correspondence between the parties evidencing the basis for that refusal. That the said email constituted clear, direct and unambiguous evidence of the unavailability of financing for the subject tender, which goes to the heart of the ground of termination relied upon. That the Respondent’s characterization of this evidence as insufficient was unreasonable and unsupported by any reasoning in the impugned Decision
26. Finally, it is alleged that the Respondent committed an error of fact and/or failed to consider material evidence by finding that no termination report/notification had been submitted to the Public Procurement Regulatory Authority, despite evidence of submission through the official PPIP/Authority portal having been placed before it.
The exparte applicants’ Further Affidavit
27. In the further affidavit sworn by Vincent Nyamweya Mamboleo on 27 th February, 2026, the exparte applicants in response to the Respondent’s Replying Affidavit sworn by Philemon Kiprop dated 4 th March 2026 and the 1 st Interested Party’s Replying Affidavit sworn by Matteo Quaia dated 3 rd March 2026 deny the contents thereof and maintain their position as earlier pleaded.
28. They maintain that contrary to paragraph 3 of the 1 st Interested Party’s Replying Affidavit, the documents sought to be impugned and/or struck out were already part of the record before the Review Board. In particular, the tender advertisement, the complete tender document together with its addenda, Professional opinion, re-evaluation report, the letter of cancellation of tender, the EIB correspondence and the screenshot of the Public Procurement Information Portal PPIP portal evidencing submission/uploading of the Termination notification/report to Public Procurement Regulatory Authority were all supplied in the Ex Parte Applicants’ bundle of confidential documents in compliance with the Board’s requirement. The deponent annexed a copy of the Notification of Appeal dated 28 th January 2026 and the accompanying Form 5 setting out the documents required from the Procuring Entity as “VNM-2.”
29. It was further deposed that the EIB procurement guidelines were annexed to the Ex Parte Applicants’ Replying Affidavit dated 1 st February 2026 filed before the Review Board in Review No.18 of 2026 and that the same appear at pages 755–858 of the Ex Parte Applicants’ bundle in this Judicial Review Application. Accordingly, the said documents were, according to the exparte applicants, properly before the Review Board and are properly before this Court and do not constitute extraneous or fresh material.
30. In response to paragraphs 4, 5, 6, 7, 8 and 9 of the 1 st Interested Party’s Replying Affidavit and to the corresponding averments in the Respondent’s Replying Affidavit, exparte applicants’ deponent reiterates his depositions in the Verifying Affidavit and Statutory Statement that the Ex Parte Applicants’ Preliminary Objection on jurisdiction, founded on Clause 1.8.2 of the EIB procurement guidelines was not considered or conclusively determined by the Review Board. That no express and reasoned finding was made on whether the Review Board had jurisdiction to entertain complaints against, or make pronouncements upon, the acts and decisions of the Financier/Donor, the 3 rd Interested Party herein.
31. The exparte applicants further maintain that the Review Board analyzed, criticised and made determinations touching on the Financier’s position regarding the Letter of No Objection, thereby effectively venturing into a domain that the Ex Parte Applicants had expressly challenged as lying outside the Review Board’s remit.
32. In response to paragraphs 10, 11, 12, 13, 14, 15 and 16 of the 1 st Interested Party’s Replying Affidavit, the deponent deposes that neither the Ex Parte Applicants, the Respondent, nor the 1 st Interested Party could compel, influence, or otherwise dictate the issuance or non-issuance of the Letter of No Objection by the Financier. That the Ex Parte Applicants having submitted the requisite re-evaluation report and recommendation in accordance with the tender process, the ultimate decision whether or not to grant concurrence rested solely within the discretion of the European Investment Bank (EIB) under the applicable tender documents and procurement framework.
33. Further in response to paragraphs 17 and 18 of the 1 st Interested Party’s Replying Affidavit, the deponent avers that the effect of the impugned decision was to disregard and/or rewrite the tender requirements by ignoring the mandatory requirement for a Letter of No Objection, which requirement was expressly provided for in the tender documents and the EIB procurement guidelines forming part of the governing procurement framework.
34. In response to paragraphs 19, 20 and 21 of the 1 st Interested Party’s Replying Affidavit, it was averred that the Ex Parte Applicants’ letter notifying the Interested Parties of the termination of tender, when read together with the EIB correspondence and other supporting documentation, sufficiently disclosed the basis for the termination, namely the absence of the Financier’s concurrence and consequently, an unavailability of the contemplated financing for the procurement process to proceed lawfully to award and implementation.
35. In response to paragraphs 22 and 23 of the 1 st Interested Party’s Replying Affidavit, it was averred that even if the impugned decision were to be treated as valid, the procurement process still cannot lawfully proceed in the absence of the mandatory Letter of No Objection. In those circumstances, it was deposed that the Review Board’s decision creates both a practical and legal stalemate, leaving the tender process in abeyance and exposes the Ex Parte Applicants to increased risk, liability and potential unlawful obligations without the tender contemplated financing. It is for that reason that the impugned decision is stated to be incapable of implementation and is, in effect, futile.
36. In response to paragraphs 24 and 25 of the 1 st Interested Party’s Replying Affidavit, it was averred that the Ex Parte Applicants duly complied with the requirements of Section 63 of the Public Procurement and Asset Disposal Act, including the requirement of notification to the Public Procurement Regulatory Authority. That such notification was made through the Public Procurement Information Portal (PPIP) in accordance with PPRA Circular No. 4/2022. That the documents submitted included: the procurement plan, notification of cancellation of tender to bidders, professional opinion, tender cancellation report, evaluation report and matters arising memorandum.
37. It was further deposed that in addition to the notification made through the PPIP portal, the European Investment Bank (EIB) was formally notified of the cancellation of the tender vide a letter dated 20 th January 2026, a copy of which is contained in the Ex Parte Applicants’ bundle of exhibits at pages 278 – 279 which also formed part of the Confidential documents submitted to the Review Board.
38. In response to paragraphs 26, 27, 28 and 29 of the 1 st Interested Party’s Replying Affidavit, it was deposed that the Ex Parte Applicants were entitled to rely on the confidential documents filed before the Review Board, those documents being integral to the procurement process and protected under the applicable statutory framework. That during the hearing before the Review Board and in the impugned Review Board’s decision, the Respondent acknowledged the Ex Parte Applicants’ confidential bundle and thus, the same formed part of the material before it.
39. Further, that the Respondent’s Replying Affidavit sworn by Philemon Kiprop on 4 th March 2026 confirms that the Board ventured into matters reserved to the Financier/Donor by interrogating the procedure, reasons and basis upon which the EIB declined to issue the Letter of No Objection. That the Respondent expressly adopts the Board’s position that the EIB ought to have deferred to Kenya’s municipal legal framework, could not “approbate and reprobate,” and acted in “bad taste” by questioning the Board and the courts. According to the exparte applicants, those were not neutral observations on the conduct of the Ex Parte Applicants, but substantive determinations on the Financier’s decision and contractual position. In so doing, the Board is said to have exceeded the limits of its mandate under sections 167 and 173 of the PPADA 2015.
40. The exparte applicants maintain in their response that the impugned decision is unreasonable, legally untenable and incapable of implementation because it purports to compel continuation of a procurement process in defiance of a mandatory financier precondition.
The Ex Parte Applicants' Written Submissions
1. Top of Form
Bottom of Form
41. In support of the substantive notice of motion, the exparte applicants filed written submissions dated 5 th March, 2026 and framed the following issues for determination:
a) Whether the Board misdirected itself in law by disregarding the Tender Documents and the EIB Guide which made financier non-objection a mandatory precondition to lawful progression to award and contract execution.
b) Whether the Board exceeded jurisdiction by effectively reviewing, criticizing and overriding the Bank's due diligence decision under a framework that reserved complaints against Bank action to the Bank's own complaint architecture.
c) Whether the Board took into account irrelevant considerations and failed to take into account relevant considerations, contrary to Article 47, the Fair Administrative Action Act and settled judicial review principles.
d) Whether the Board's order directing completion of the procurement process was irrational, unlawful and incapable of implementation because it exposed the Applicants to an unfunded and unauthorized public commitment.
42. In resolving the above issues, the exparte applicants wholly relied on the grounds in support of the motion, as set out in the Statutory Statement, Verifying Affidavit and Further Affidavit of Vincent Nyamweya Mamboleo. They also adopted their Submissions that were lodged before the Board as annexed to the Verifying Affidavit at pages 859 – 869 of the Ex-parte Bundle of Exhibits of the Record in the present matter.
43. On what judicial review is concerned with, reliance was placed on the often-cited case of Municipal Council of Mombasa v Republic & Umoja Consultants Ltd [2002] eKLR arguing that judicial revie wis not an appellate jurisdiction and therefore the court is not concerned with the merits of the decision but the with the decision-making process.
44. Further submission is that judicial review in Kenya is now anchored in the Constitution under Article 47 and the Fair Administrative Action Act, and that in Judicial Service Commission v Mbalu Mutava & another [2015] eKLR and Suchan Investment Ltd v Ministry of National Heritage & Culture & 3 others [2016] eKLR , the courts make clear that legality, rationality, reasonableness, proportionality and attention to relevant considerations are all squarely within the Court's remit.
45. Further submission was made citing Section 7(2) of the Fair Administrative Action Act and arguing that the impugned decision is reviewable where a mandatory and material procedure or condition was not complied with; where the decision was materially influenced by an error of law; where relevant considerations were ignored; where the decision was not rationally connected to the information before the decision-maker; where it was unreasonable; or where it amounted to an abuse of power.
46. On whether the Board misdirected itself in law by disregarding the Tender Documents and the EIB Guide which made financier non-objection a mandatory precondition to lawful progression to award and contract execution , it was submitted that Section 80 of the PPADA requires evaluation and comparison of tenders using the procedures and criteria set out in the tender documents and Section 86 requires award in accordance with the prescribed framework. That the Board's statutory powers under Section 173 are wide, but not a license to re-write the tender architecture or to neutralize an express financing condition written into the Tender itself.
47. In the instant proceedings, it was submitted that the Tender Documents did not merely mention EIB in passing but expressly identified EIB as the financier for the consultancy services contract, subjected any contractual commitment to readiness of disbursement, preserved EIB monitoring and no-objection and incorporated Guidelines, providing that evaluation outcomes and the proposed award must obtain the Bank's non-objection.
48. That these were not optional administrative courtesies but conditions built into the procurement architecture itself as shown in the Tender Preface contained at pages 778, 779, 665, 49 and 220; Special Provision clause 1.1.2 contained at pages 795 and 31; General Provision clauses 1.2.1 and 1.2.3 contained at page 782, 18 and 221; EIB Guide section 3.5.1 and Annex 2 contained at pages 831, 842 – 843, 242 and 253 - 254 respectively of the Ex-parte Bundle of Exhibits.
49. It was submitted that the Board’s directive to the Procuring entity to proceed with the procurement to its lawful conclusion after the Bank had withheld the mandatory no-objection was a legal contradiction and that a tribunal cannot order the performance of a step that the controlling procurement documents and financing framework prohibit from being taken in the absence of prior financier concurrence. The Board is therefore accused of misdirecting itself by treating a mandatory no-objection as dispensable.
50. It was submitted that in any event, the Respondent's and the 1st Interested Party's Replying Affidavits do not answer that contradiction but accept that the no-objection was required and that it was withheld, their argument being that simply, the Board did not 'disregard' the requirement. In the view of the exparte applicants, the Board’s directive despite there being a no objection letter had the legal effect of the order treating the no-objection as non-dispositive. Labels canno
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