REPUBLIC OF KENYA
IN THE HIGH OF KENYA AT NAIROBI
JUDICIAL REVIEW DIVISION
JUDICIAL REVIEW APPLICATION NO. E347 OF 2025 TOGETHER WITH JUDICIAL REVIEW MISC APPLICATION NO.E144 OF 2025
HEXING TECHNOLOGY COMPANY LIMITED……..………..APPLICANT
VERSUS
PUBLIC PROCUREMENT AND
ADMINISTRATIVE REVIEW BOARD……………………1 ST RESPONDENT
CHIEF EXECUTIVE OFFICER/MANAGING DIRECTOR,
KENYA POWER & LIGHTING COMPANY PLC………..2 ND RESPONDENT
KENYA POWER & LIGHTING COMPANY PLC………..3 RD RESPONDENT
CHINT METERS & ELECTRIC KENYA
COMPANY LTD……………………………………………..4 TH RESPONDENT
AND
SMART METER TECHNOLOGY LIMITED…..…1 ST INTERESTED PARTY
INHEMETER AFRICA COMPANY LIMITED…..2 ND INTERESTED PARTY
HEXING TECHNOLOGY COMPANY
LIMITED…………………………………………….3 RD INTERESTED PARTY
HOUSE OF PROCUREMENT LIMITED……..…4 TH INTERESTED PARTY
ABCOS INDUSTRIAL LIMITED…………………5 TH INTERESTED PARTY
AND
MAGNATE VENTURES LIMITED……..………….………….…APPLICANT
VERSUS
PUBLIC PROCUREMENT AND
ADMINISTRATIVE REVIEW BOARD……………………1 ST RESPONDENT
CHIEF EXECUTIVE OFFICER/MANAGING DIRECTOR,
KENYA POWER & LIGHTING COMPANY PLC………..2 ND RESPONDENT
KENYA POWER & LIGHTING COMPANY PLC………..3 RD RESPONDENT
CHINT METERS & ELECTRIC KENYA
COMPANY LTD……………………………………………..4 TH RESPONDENT
AND
SMART METER TECHNOLOGY LIMITED…..…1 ST INTERESTED PARTY
INHEMETER AFRICA COMPANY LIMITED…..2 ND INTERESTED PARTY
HEXING TECHNOLOGY COMPANY
LIMITED…………………………………………….3 RD INTERESTED PARTY
HOUSE OF PROCUREMENT LIMITED……..…4 TH INTERESTED PARTY
ABCOS INDUSTRIAL LIMITED…………………5 TH INTERESTED PARTY
AND
MAGNATE VENTURES LIMITED……..………….…………….APPLICANT
VERSUS
PUBLIC PROCUREMENT AND
ADMINISTRATIVE REVIEW BOARD……………………1 ST RESPONDENT
CHIEF EXECUTIVE OFFICER/MANAGING DIRECTOR,
KENYA POWER & LIGHTING COMPANY PLC………2 ND RESPONDENT
KENYA POWER & LIGHTING COMPANY PLC………..3 RD RESPONDENT
CHINT METERS & ELECTRIC KENYA COMPANY
LTD............................................................................................4 TH RESPONDENT
AND
SMART METER TECHNOLOGY LIMITED……..1 ST INTERESTED PARTY
INHEMETER AFRICA COMPANY LIMITED…..2 ND INTERESTED PARTY
HEXING TECHNOLOGY COMPANY
LIMITED…………………………………………….3 RD INTERESTED PARTY
HOUSE OF PROCUREMENT LIMITED……..…..4 TH INTERESTED PARTY
ABCOS INDUSTRIAL LIMITED…………………5 TH INTERESTED PARTY
JUDGMENT
1. This matter concerns two different sets of motions, arising from the same public procurement process. The Applicant in JR E 347 of 2025 is Hexing Technology Company Limited whereas the applicant in JR MISC E144 of 2025 is Magnate Ventures Limited . They filed their respective separate Substantive originating motion applications challenging the Public Procurement Review Board’s decision dated 23 rd October 2025 in regard to the same tender that is Tender No. KP1/9A.3/RT/14/24-25 for the supply of Single-Phase Smart Meters (Local Manufacturers and Assemblers).
2. The parties in the two applications agreed for this court to prepare one judgment for both matters as the issues raised in the two matters are similar, with necessary modifications as appropriate while making reference to the respective motions and hence the court has outlined each party’s case as presented and made one determination. Each of the two motions will have counterparts of the same Judgment uploaded on the CTS after delivery.
3. I further observe that, save for the 3rd Interested Party in JR E347 of 2025, who did not file a response in JR Miscellaneous Application No. E144 of 2025, the responses filed by the respective parties are substantially similar across the two applications. In the circumstances, the Court did not consider it necessary to reproduce those submissions separately. The submissions are accordingly treated as consolidated for purposes of this Judgment. The Applicants’ cases, however, shall be set out separately. This approach is adopted in the interest of judicial economy and efficiency and no party stands to suffer any prejudice thereby.
The Applicant’s case in JR No. E347 OF 2025
4. The application in JR E347 of 2025 by Hexing Technology is brought by way of an originating motion that is dated 4 th November 2025 and was filed on 5 th November 2025.It is brought pursuant to Articles 10, 22, 23(3)(f) 47, 48, 50 (1) and 227 of the Constitution of Kenya 2010, Section 175 (1) of the Public Procurement and Asset Disposal Act, Sections 7, 9 and 11 of the Fair Administrative Actions Act, Rule 11(2) and 13 of the Fair Administrative Action Rules, 2024.
5. The motion seeks the following orders:
a) Spent.
b) Spent.
c) THAT a DECLARATION be and is hereby issued that the decision of the Public Procurement Administrative Review Board dated and delivered on 23 rd October 2025 upon rehearing Request for Review Application No. 85 of 2025: CHINT METERS & ELECTRIC KENYA COMPANY LIMITED -VERSUS- THE CHIEF EXECUTIVE OFFICER/MANAGING DIRECTOR, KENYA POWER & LIGHTING COMPANY PLC, KENYA POWER & LIGHTING COMPANY PLC, MAGNATE VENTURES LTD, HOUSE OF PROCUREMENT LIMITED, ABCOS INDUSTRIAL LTD is null and void ab initio by dint of section 175(6) of the Public Procurement and Asset Disposal Act having been made contrary to the binding Judgment of the High Court (Chigiti, J) dated and delivered on 9 th October 2025 in HCJR/E262/2025 consolidated with HCJR/E264/2025 and HCJR/E271/2025 .
d) THAT AN ORDER OF CERTIORARI be and is hereby issued removing to this Honourable Court for purposes of being quashed the entire decision, findings and holding of the Public Procurement Administrative Review Board dated and delivered on 23 rd October 2025 upon rehearing of the Request for Review Application No. 85 of 2025: CHINT METERS & ELECTRIC KENYA COMPANY LIMITED -VERSUS- THE CHIEF EXECUTIVE OFFICER/MANAGING DIRECTOR, KENYA POWER & LIGHTING COMPANY PLC, KENYA POWER & LIGHTING COMPANY PLC, MAGNATE VENTURES LTD, HOUSE OF PROCUREMENT LIMITED, ABCOS INDUSTRIAL LTD .
e) THAT AN ORDER OF PROHIBITION be and is hereby issued to prohibit the 2 nd and 3 rd Respondents from re-advertising, re-tendering and/or issuing fresh invitations for sealed tenders or bids for the quantities of meters under Category 2 and 3 in Tender No. KP1/9A.3/RT/14/24-25 for Supply of Single-Phase Smart Meters (Local Manufacturers And Assemblers).
f) THAT AN ORDER OF MANDAMUS be and is hereby issued compelling the 2 nd and 3 rd Respondents to execute a procurement contract with the Applicant in respect of its award for Lot No. 2 under Category 2 of the Tender No. KP1/9A.3/RT/14/24-25 for Supply of Single-Phase Smart Meters (Local Manufacturers And Assemblers).
g) THAT each party to bear their respective costs in light of section 175(7) of the Public Procurement and Asset Disposal Act.
6. The application is supported by the affidavit of Liang Gao sworn on 4 th November 2025. The Applicant seeks judicial review of the decision of the Public Procurement Administrative Review Board (PPARB) dated 23 rd October 2025, rendered upon a rehearing Request for Review No. 85 of 2025, relating to Tender No. KP1/9A.3/RT/14/24-25 for the supply of Single-Phase Smart Meters (Local Manufacturers And Assemblers). The Applicant states that it had participated as an eligible bidder in Category 2 and was duly notified on 17 th July 2025 that it had been awarded Lot 2 of Category 2.
7. That following the award, the 1 st Interested Party (Chint Meters & Electric Kenya) challenged its disqualification by filing Request for Review No. 85 of 2025, and in a decision dated 19 th August 2025, the 1 st Respondent annulled the entire procurement process and directed re-tendering across all categories. That this decision was challenged in three judicial review applications HCJR/E262/2025, HCJR/E264/2025 and HCJR/E271/2025 which were consolidated and determined by the High Court on 9 th October 2025.
8. The High Court is said to have quashed the Board’s decision, upheld the Applicant’s award as a lawful award, found the cancellation and re-tendering orders to be excessive and disproportionate, affirmed the separability of the tender categories, and expressly prohibited any re-advertising or re-tendering of Categories 1, 2, and 3. It is urged that no appeal was filed, rendering the judgment final and binding under section 175 of the PPAD Act.
9. The Applicant’s case is that despite being a party to the proceedings before the High Court, the 1 st Respondent reheard the review application and, in its impugned decision of 23 rd October 2025, again nullified the notification of award for Categories 2 and 3 and directed fresh re-tendering. The Applicant contends that this decision directly contravenes the binding High Court judgment and is therefore null and void under section 175(6) of the PPAD Act.
10. The Applicant further argues that the impugned decision is unlawful and ultra vires for several reasons. First, that the request for review was time-barred, as it sought to challenge the evaluation and qualification criteria contained in the tender document and Addendum No. 1 issued on 13 th June 2025, contrary to section 167(1) of the PPAD Act and the applicable regulations.
11. Second, that the 1 st Respondent lacked jurisdiction to entertain a challenge to Category 2 since the 1 st Interested Party was not a tenderer in that category and therefore lacked locus standi . Third, that the 1 st Respondent failed to consider mandatory and legally relevant considerations, including the binding High Court orders, the doctrine of res judicata, and prior judicial findings on the lawfulness of the evaluation criteria and proportionality of remedies.
12. The Applicant also challenges the decision on grounds of irrationality and unreasonableness, contending that Public Procurement Administrative Review Board contradicted itself by acknowledging that the evaluation complied with the tender document while simultaneously concluding that the evaluation and award were unlawful.
13. The Applicant states that the Board contradicted itself within its own decision creating unreasonableness at paragraphs 203 and 215 wherein it concluded that evaluation and award in the subject tender was not carried out in accordance with the procedures and criteria for evaluation and award set out in the Tender Document, yet at paragraph 193, the Board extensively observed, upon review of the confidential documents submitted by the 2 nd and 3 rd Respondents, that the successful bidders were determined through a procedure that was compliant with the mode of award stated in the tender document which therefore implies full compliance with section 80(2) and 86 of Public Procurement Asset Disposal Act as read with Article 227(1) of the Constitution.
14. The Board is said to have acted unreasonably in failing to find that the 1 st Interested Party herein lacked locus standi to commence and continue the request for review application with respect to the distinct and separate Category 2 of the subject tender where the said 1 st Interested Party was not a tenderer and further finding that it had pleaded loss and damage that it suffered and/or risked to suffer.
15. It is further argued that no reasonable tribunal could repeat actions already declared illegal, irrational, and disproportionate by the High Court, or direct re-tendering in the face of express prohibitory orders. The Applicant maintains that the decision bears no rational connection to the evidence before the Board or the purpose of the statutory review mandate.
16. It also urges that Board violated its legitimate expectations by disregarding binding court orders, exceeding its statutory jurisdiction, and cancelling a tender award that had crystallised into a lawful and protected legal right. On these grounds, the Applicant seeks judicial review relief to quash the impugned decision, prohibit its implementation, and uphold the principles and objectives of public procurement under the Public Procurement Asset Disposal Act.
The Applicant in JR E144 OF 2025
17. The Applicant in JR E 144 of 2025 is Magnate Ventures Limited. It filed an originating motion dated 6 th November 2025 and filed on 7 th November 2025.
18. The application is brought pursuant to Articles 10, 47, 48, 50 (1) and 227 of the Constitution of Kenya 2010, Sections 7, 9, 10 and 11 of the Fair Administrative Actions Act.
19. The application seeks the following orders:
a. An order of CERTIORARI do issue to remove into this Honourable Court and quash the entire decision of the Public Procurement Administrative Review Board dated 23 rd October 2025 in Public Procurement Administrative Review Board Application No. 85 of 2025 (Chint Meters & Electric Kenya Company Limited v The Chief Executive Officer/Managing Director, Kenya Power & Lighting Company PLC & Others), in respect of Tender No. KP1/9A.3/RT/14/24-25 for the Supply of Single-Phase Smart Meters (Local Manufacturers and Assemblers), the said decision having been made upon a rehearing pursuant to the orders of the High Court at Nairobi issued on 9 th October 2025 in HCJR/E262 of 2025 (consolidated with HCJR/E264 of 2025 and HCJR/E271 of 2025).
b. That an order of CERTIORARI do issue to remove into this Honourable Court and quash the letter dated 5 th November 2025 from the 2 nd and 3 rd Respondents , referenced KP1/9A3/RT/14/24-25/JN/bkk, cancelling Tender No. KP1/9A3/RT/14/24-25 for the Supply of Single-Phase Smart Meters , which cancellation was purportedly made pursuant to the orders of the Public Procurement Administrative Review Board dated 23 rd October 2025 in PPARB Application No. 85 of 2025- Chint Meters & Electric Kenya Company Limited v The Chief Executive Officer/Managing Director, Kenya Power & Lighting Company PLC & Others , in respect of Tender No. KP1/9A3/RT/14/24-25 for the Supply of Single-Phase Smart Meters (Local Manufacturers and Assemblers) , the said decision having been made upon a rehearing pursuant to the orders of the High Court at Nairobi issued on 9 th October 2025 in HCJR No. E262 of 2025 (consolidated with HCJR No. E264 of 2025 and HCJR No. E271 of 2025).
c. An order of PROHIBITION do issue restraining the 2 nd and 3 rd Respondents, whether by themselves, their servants, agents, or any other person acting under their authority, from implementing, enforcing, or in any way giving effect to the impugned decision of the Public Procurement Administrative Review Board dated 23 rd October 2025, or from proceeding with any procurement or contractual process arising therefrom.
d. In the alternative to Order No. 2, this Honourable Court be pleased to issue an order of PROHIBITION, restraining the 2 nd and 3 rd Respondents, whether by themselves, their servants, agents, or any other person acting under their authority, from re-advertising or re-tendering for Categories 2 and 3 under Tender No. KP1/9A.3/RT/14/24–25, or from issuing fresh invitations or procurement processes for the same goods, until a lawful and transparent rehearing of the procurement process is undertaken.
e. Spent
f. Costs of these proceedings be provided for.
g. Such other alternative reliefs as this Honourable court may deem just and expedient.
20. The Applicant’s case is that the 3 rd Respondent, as the Procuring Entity, advertised its intention to procure the subject tender through limited tendering pursuant to Section 102(2)(c) and (d) of the Public Procurement and Asset Disposal Act (PPADA) and Regulation 89(8) of the 2020 Regulations, with tender documents to be downloaded from its website.
21. The 2 nd Respondent is said to have later issued three addenda clarifying and or modifying various aspects of the Tender Document. The Applicant and the 1 st to 5 th Interested Parties it is urged submitted bids across different categories, and following evaluation, the 2 nd Respondent issued a Notification of Intention to Award dated 17 th July 2025, awarding the Applicant Lot 3 of Category 2 of the subject tender, and notifying unsuccessful bidders of the reasons for their disqualification.
22. That aggrieved, the 4 th Respondent filed Request for Review No. 85 of 2025 before the 1 st Respondent, which on 19 th August 2025 allowed the request, cancelled all awards, and directed a fresh tendering process. Subsequently, that several parties filed judicial review applications, and that by a consent dated 17 th September 2025, the matters HCJR 8262/2025, HCJR 8264/2025, and HCJR E271/2025 were consolidated. The Applicant states that on 9 th October 2025, the High Court found the Board’s decision illegal, irrational, unreasonable, and procedurally improper, and it quashed the same, prohibited re-advertisement, and remitted the matter back for rehearing.
23. That upon rehearing on 22 nd October 2025, the 1 st Respondent issued the impugned decision on 23 rd October 2025, nullifying and setting aside Categories 2 and 3 of Tender No. KP1/9A.3/RT/14/24-25 and ordering a fresh procurement for the Supply of Single-Phase Smart Meters (Local Manufacturers and Assemblers) for those categories.
24. The Applicant challenges this decision as illegal, irrational, and ultra vires , as according to it first, the Board erred at paragraph 211 by faulting notification letters for not disclosing unit prices per lot, erroneously citing section 87(3) of the Public Procurement Asset Disposal Act. The Applicant argues that Section 87(3) of the Act and Regulation 82 only require disclosure of (i) reasons for unsuccessful bids, (ii) names of successful bidders, and (iii) total contract price or unit prices, and do not mandate unit prices for each specific lot. That by imposing such a requirement, the Board introduced obligations not found in the law, rendering its finding an error of law and contrary to the principle of legality.
25. Second, the Applicant contends that the Board unreasonably criticized the Procuring Entity’s due diligence process, despite compliance with Section 83 of the Act and Regulation 80. It is urged that the Tender Document required factory inspection only for Local Manufacturers and Assemblers who had never previously supplied meters to the Procuring Entity and reliance is placed on Clause 2.2.6(ii), Part 1-Preliminary Evaluation Criteria, page 33. The Applicant also contends that the bidders with a proven supply record were expressly exempt from factory inspection as seen under Clause 2.2.6(i), page 33.
26. It is the Applicant’s case that the Evaluation Committee properly conducted due diligence only on Abcos Industrial Ltd and House of Procurement Ltd, who were successful tenderers in Category 3 and had no prior supply history, and prepared due diligence reports as required. That the Board’s view that due diligence should have been conducted for all bidders was irrational, exceeded its jurisdiction, and amounted to an unlawful substitution of its own interpretation of the tender requirements.
27. Third, the Board is said to have acted unreasonably by annulling both Category 2 and Category 3 despite the Request for Review having been filed solely by a bidder that participated only in Category 3. This according to the Applicant violated the Wednesbury reasonableness standard, as no reasonable and law directed tribunal could annul a category in which the applicant before it did not participate. The Board is said to have further ignored a binding finding of the High Court in the earlier consolidated judgments, where the Court is said to have held at paragraph 55 at page 108 of 115 that the decision to cancel the whole tender despite the award criteria for the various categories being separate and distinct was unreasonable and irrational.
28. The Applicant maintains that the categories were in fact independent, as expressly set out in the Tender Document and Addendum No.1, with Category 2 reserved for prior suppliers to KPLC or public entities, and Category 3 reserved for all local manufacturers and assemblers. That evaluation and awards in each category were to be made separately under ITT 3.6 and ITT 40, based on lowest evaluated price per lot. According to the Applicant by treating the two categories as “interlinked,” the Board effectively rewrote the tender contrary to Section 80(2) of the PPADA, which requires evaluation strictly per the tender document.
29. The Applicant urges that the Originating Motion is merited, that the impugned decision is illegal, irrational, unreasonable, and ultra vires , and that the Court has jurisdiction under Section 175 of the PPADA to grant judicial review. The Applicant further states there is no other internal mechanism for redress, and unless the orders sought are granted, it will suffer substantial loss, including the value of its duly awarded tender in Category 3, Lot 2, amounting to Kshs. 561,015,000.00 (exclusive of VAT) and consequential damages, rendering its right to judicial review nugatory.
Responses
The 1 st Respondent-Public Procurement Administrative Board’s Replying Affidavit
30. The 1 st Respondent filed replying affidavits in both matters both of which are sworn on 17 th November 2025 by Philemon Kiprop who introduces himself as the Secretary of the Public Procurement Administrative Review Board, the 1 st respondent herein.
31. Relying on Kenya Pipeline Company Limited v Hyosung Ebara Company Limited & 2 Others [2012] KECA 104 (KLR), the 1 st Respondent asserts that it is a specialised statutory tribunal established to address breaches of procurement law, with wide powers under the Public Procurement and Asset Disposal Act, including the power to annul anything done by a procuring entity and substitute its decisions for those of a procuring entity. That as such, the administrative review envisaged under the Act is indeed an appeal, and from the 1 st Respondent’s nature, it follows that its decisions in matters within its jurisdiction should not be lightly interfered with.
32. The 1 st Respondent recounts that on 29 th July 2025, Chint Meters & Electric Kenya Company Limited, filed Request for Review No. 85 of 2025 challenging Tender No. KP1/9A.3/RT/14/24-25 and sought, inter alia, annulment of the procurement proceedings, cancellation of the letters of intention to award dated 17 th July 2025, re-evaluation of its bid, site visits to confirm local manufacturing and assembly status, and costs.
33. That on 19 th August 2025, the Board exercised its powers under the Public Procurement Asset Disposal Act and cancelled all awards with respect to Lot 1 and Category 1 and Lots 1,2,3, and 4 with respect to under Categories 2. It also cancelled and set aside awards of Lots 1,2 and 3 with respect to category 3 which was issued to Abcos Industrial Ltd, Magnate Ventures Ltd and House of Procurement Limited respectively. The Board also directed for the re-tendering of the quantities of meters under Category 1, 2 and 3 afresh.
34. That Following judicial review proceedings in HCJR E262 of 2025 consolidated with E264 of 2025 and E271 of 2025, the High Court on 9 th October 2025 quashed the Board’s decision, prohibited re-tendering or re-advertisement of Categories 1, 2, and 3, and remitted the matter to the Board for reconsideration within 14 days.
35. The 1 st Respondent’s case is that in compliance with these orders, it reheard the request for review on 22 nd October 2025 and on 23 rd October 2025 nullified the notifications of award for Categories 2 and 3, cancelled the procurement proceedings for those categories only, directed re-tendering for Categories 2 and 3, and ordered each party to bear its own costs.
36. The 1 st Respondent states that in reaching its decision, it considered all pleadings, submissions, authorities, and confidential documents submitted pursuant to section 67(3)(e) of the Act. It identified and determined several jurisdictional and substantive issues, including its jurisdiction to rehear the matter, the competence and timeliness of the Request for Review under section 167(1), locus standi and pleading of loss, reliance on confidential information, the mode of award, compliance of evaluation and award with the Tender Document, the Constitution, the Public Procurement Asset Disposal Act, and Regulations 2020, compliance with section 87(3) of the Act and Regulation 82, and the appropriate remedies.
37. On preliminary objections, it is urged that the Board considered an objection raised by Smart Meter Technology Limited, contending that the person who swore the Supporting Affidavit in the Request for Review lacked authority to act on behalf of the Chint Meters & Electric Kenya Co. Ltd by dint of Section 37(2) of the Companies Act and Order 4 Rule 1 (4) of the Civil Procedure Rules. The 1 st Respondent contends that it held that this was not a pure question of law since its determination would necessitate examining evidence and as such, could not be determined as a preliminary objection.
38. That it found that while the ground relating to absence of site visits was time-barred under section 167(1), the challenge to the application of the mode of award crystallised upon issuance of the notification of intention to award on 17 th July 2025 and was therefore filed within time. The Board further held that the Request for Review was not anchored on confidential information contrary to section 67 of the Act and that Chint Meters & Electric Kenya Co. Ltd had sufficiently pleaded loss and damage to meet the threshold under section 167(1).
39. On the merits, the 1 st Respondent states that it addressed the mode of award under ITT 40 as amended by Addendum No.1 and found that the tender adopted a structured and sequential award system across Categories 2 and 3, where each bidder could only be awarded one lot with the highest quantity per category based on eligibility, with subsequent lots allocated sequentially subject to prevailing market price. The Board is said to have interpreted Categories 2 and 3 as interlinked for purposes of award and found that the Evaluation Committee’s approach was neither transparent, predictable, nor lawful.
40. That relying on Article 227 of the Constitution and sections 80, 83, 86 and 87 of the Act, the Board found that the evaluation and award process lacked transparency, failed the test of cost-effectiveness, and did not comply with the Tender Document. The Board is said to have also noted the absence of a detailed evaluation summary, selective and inconsistent application of due diligence contrary to section 83, and failure to conduct due diligence on certain bidders prior to award. Further, that the Board also found that the letters of notification of intention to award failed to disclose unit prices for each lot as required under section 87(3) of the Act and Regulation 80(3), thereby compounding opacity in the process.
41. The 1 st Respondent maintains that these findings were consistent with, and in part affirmed by, the High Court in the consolidated judicial reviews, and that certain issues raised by the Applicants are res judicata . The Board is said to have further cautioned against reliance on outdated market surveys and underscored the need for adherence to stated evaluation criteria, citing Minet Kenya Insurance Brokers Limited v PPARB & Others Judicial Review No. E092 of 2025 where according to it the court cautioned against introduction of unstated evaluation criterion in the Tender Document and pointed out in its Decision that the Evaluation Committee is under a duty to confine itself to the procedures and criteria set out in the Tender Document when evaluating bids as read with the provisions of the Act, Regulations 2020 and the Constitution.
42. In conclusion, the 1 st Respondent asserts that its decision dated 23 rd October 2025 was lawful, reasonable, procedurally fair, rational, and within its statutory mandate under the Constitution, the PPADA, Regulations 2020, and the Fair Administrative Action Act. It denies any illegality, irrationality, or jurisdictional overreach and prays that the Originating Motion be dismissed with costs, or in the alternative, that no costs be awarded pursuant to section 175(7) of the Act should the decision be set aside.
The 2 nd and 3 rd Respondents’ Responses
43. In response the 2 nd and 3 rd respondents filed replying affidavits in both matters both of which are sworn on 24 th November 2025 by Bernard Kosgei who introduces himself as a Supply Chain Officer at the 3 rd Respondent.
44. The 2 nd and 3 rd Respondents state that they are equally dissatisfied with the 1 st Respondent’s decision of 23 rd October 2025, which cancelled the tender awards they had issued for categories 2 and 3 of the smart-meter tender. That they support the present application for that reason. They explain that the 3 rd Respondent, a public utility company listed on the Nairobi Stock Exchange, is responsible for electricity distribution nationwide. They state that the principal legislative framework governing the operations of the 2 nd respondent is the Constitution of Kenya, 2010, Energy Act, 2019, Public Procurement and Asset Disposal Act, 201, Public Procurement and Asset Disposal Regulations, 2020, Public Officers Ethics Act, CAP18, State Corporations Act, CAP446 and the Public Finance Management Act, 2012.
45. They emphasize that energy meters are essential for accurate billing, revenue collection, new customer connections, and meter replacements, and that any interruption in their annual procurement process directly harms consumers, slows service delivery, and causes significant revenue losses.
46. The 2 nd and 3 rd Respondents explain that there is an urgent backlog of about 420,000 electricity meters, which continues to grow and is already causing serious harm to the public. That without these meters, new customers including hospitals, schools, government facilities
[...truncated]
IN THE HIGH OF KENYA AT NAIROBI
JUDICIAL REVIEW DIVISION
JUDICIAL REVIEW APPLICATION NO. E347 OF 2025 TOGETHER WITH JUDICIAL REVIEW MISC APPLICATION NO.E144 OF 2025
HEXING TECHNOLOGY COMPANY LIMITED……..………..APPLICANT
VERSUS
PUBLIC PROCUREMENT AND
ADMINISTRATIVE REVIEW BOARD……………………1 ST RESPONDENT
CHIEF EXECUTIVE OFFICER/MANAGING DIRECTOR,
KENYA POWER & LIGHTING COMPANY PLC………..2 ND RESPONDENT
KENYA POWER & LIGHTING COMPANY PLC………..3 RD RESPONDENT
CHINT METERS & ELECTRIC KENYA
COMPANY LTD……………………………………………..4 TH RESPONDENT
AND
SMART METER TECHNOLOGY LIMITED…..…1 ST INTERESTED PARTY
INHEMETER AFRICA COMPANY LIMITED…..2 ND INTERESTED PARTY
HEXING TECHNOLOGY COMPANY
LIMITED…………………………………………….3 RD INTERESTED PARTY
HOUSE OF PROCUREMENT LIMITED……..…4 TH INTERESTED PARTY
ABCOS INDUSTRIAL LIMITED…………………5 TH INTERESTED PARTY
AND
MAGNATE VENTURES LIMITED……..………….………….…APPLICANT
VERSUS
PUBLIC PROCUREMENT AND
ADMINISTRATIVE REVIEW BOARD……………………1 ST RESPONDENT
CHIEF EXECUTIVE OFFICER/MANAGING DIRECTOR,
KENYA POWER & LIGHTING COMPANY PLC………..2 ND RESPONDENT
KENYA POWER & LIGHTING COMPANY PLC………..3 RD RESPONDENT
CHINT METERS & ELECTRIC KENYA
COMPANY LTD……………………………………………..4 TH RESPONDENT
AND
SMART METER TECHNOLOGY LIMITED…..…1 ST INTERESTED PARTY
INHEMETER AFRICA COMPANY LIMITED…..2 ND INTERESTED PARTY
HEXING TECHNOLOGY COMPANY
LIMITED…………………………………………….3 RD INTERESTED PARTY
HOUSE OF PROCUREMENT LIMITED……..…4 TH INTERESTED PARTY
ABCOS INDUSTRIAL LIMITED…………………5 TH INTERESTED PARTY
AND
MAGNATE VENTURES LIMITED……..………….…………….APPLICANT
VERSUS
PUBLIC PROCUREMENT AND
ADMINISTRATIVE REVIEW BOARD……………………1 ST RESPONDENT
CHIEF EXECUTIVE OFFICER/MANAGING DIRECTOR,
KENYA POWER & LIGHTING COMPANY PLC………2 ND RESPONDENT
KENYA POWER & LIGHTING COMPANY PLC………..3 RD RESPONDENT
CHINT METERS & ELECTRIC KENYA COMPANY
LTD............................................................................................4 TH RESPONDENT
AND
SMART METER TECHNOLOGY LIMITED……..1 ST INTERESTED PARTY
INHEMETER AFRICA COMPANY LIMITED…..2 ND INTERESTED PARTY
HEXING TECHNOLOGY COMPANY
LIMITED…………………………………………….3 RD INTERESTED PARTY
HOUSE OF PROCUREMENT LIMITED……..…..4 TH INTERESTED PARTY
ABCOS INDUSTRIAL LIMITED…………………5 TH INTERESTED PARTY
JUDGMENT
1. This matter concerns two different sets of motions, arising from the same public procurement process. The Applicant in JR E 347 of 2025 is Hexing Technology Company Limited whereas the applicant in JR MISC E144 of 2025 is Magnate Ventures Limited . They filed their respective separate Substantive originating motion applications challenging the Public Procurement Review Board’s decision dated 23 rd October 2025 in regard to the same tender that is Tender No. KP1/9A.3/RT/14/24-25 for the supply of Single-Phase Smart Meters (Local Manufacturers and Assemblers).
2. The parties in the two applications agreed for this court to prepare one judgment for both matters as the issues raised in the two matters are similar, with necessary modifications as appropriate while making reference to the respective motions and hence the court has outlined each party’s case as presented and made one determination. Each of the two motions will have counterparts of the same Judgment uploaded on the CTS after delivery.
3. I further observe that, save for the 3rd Interested Party in JR E347 of 2025, who did not file a response in JR Miscellaneous Application No. E144 of 2025, the responses filed by the respective parties are substantially similar across the two applications. In the circumstances, the Court did not consider it necessary to reproduce those submissions separately. The submissions are accordingly treated as consolidated for purposes of this Judgment. The Applicants’ cases, however, shall be set out separately. This approach is adopted in the interest of judicial economy and efficiency and no party stands to suffer any prejudice thereby.
The Applicant’s case in JR No. E347 OF 2025
4. The application in JR E347 of 2025 by Hexing Technology is brought by way of an originating motion that is dated 4 th November 2025 and was filed on 5 th November 2025.It is brought pursuant to Articles 10, 22, 23(3)(f) 47, 48, 50 (1) and 227 of the Constitution of Kenya 2010, Section 175 (1) of the Public Procurement and Asset Disposal Act, Sections 7, 9 and 11 of the Fair Administrative Actions Act, Rule 11(2) and 13 of the Fair Administrative Action Rules, 2024.
5. The motion seeks the following orders:
a) Spent.
b) Spent.
c) THAT a DECLARATION be and is hereby issued that the decision of the Public Procurement Administrative Review Board dated and delivered on 23 rd October 2025 upon rehearing Request for Review Application No. 85 of 2025: CHINT METERS & ELECTRIC KENYA COMPANY LIMITED -VERSUS- THE CHIEF EXECUTIVE OFFICER/MANAGING DIRECTOR, KENYA POWER & LIGHTING COMPANY PLC, KENYA POWER & LIGHTING COMPANY PLC, MAGNATE VENTURES LTD, HOUSE OF PROCUREMENT LIMITED, ABCOS INDUSTRIAL LTD is null and void ab initio by dint of section 175(6) of the Public Procurement and Asset Disposal Act having been made contrary to the binding Judgment of the High Court (Chigiti, J) dated and delivered on 9 th October 2025 in HCJR/E262/2025 consolidated with HCJR/E264/2025 and HCJR/E271/2025 .
d) THAT AN ORDER OF CERTIORARI be and is hereby issued removing to this Honourable Court for purposes of being quashed the entire decision, findings and holding of the Public Procurement Administrative Review Board dated and delivered on 23 rd October 2025 upon rehearing of the Request for Review Application No. 85 of 2025: CHINT METERS & ELECTRIC KENYA COMPANY LIMITED -VERSUS- THE CHIEF EXECUTIVE OFFICER/MANAGING DIRECTOR, KENYA POWER & LIGHTING COMPANY PLC, KENYA POWER & LIGHTING COMPANY PLC, MAGNATE VENTURES LTD, HOUSE OF PROCUREMENT LIMITED, ABCOS INDUSTRIAL LTD .
e) THAT AN ORDER OF PROHIBITION be and is hereby issued to prohibit the 2 nd and 3 rd Respondents from re-advertising, re-tendering and/or issuing fresh invitations for sealed tenders or bids for the quantities of meters under Category 2 and 3 in Tender No. KP1/9A.3/RT/14/24-25 for Supply of Single-Phase Smart Meters (Local Manufacturers And Assemblers).
f) THAT AN ORDER OF MANDAMUS be and is hereby issued compelling the 2 nd and 3 rd Respondents to execute a procurement contract with the Applicant in respect of its award for Lot No. 2 under Category 2 of the Tender No. KP1/9A.3/RT/14/24-25 for Supply of Single-Phase Smart Meters (Local Manufacturers And Assemblers).
g) THAT each party to bear their respective costs in light of section 175(7) of the Public Procurement and Asset Disposal Act.
6. The application is supported by the affidavit of Liang Gao sworn on 4 th November 2025. The Applicant seeks judicial review of the decision of the Public Procurement Administrative Review Board (PPARB) dated 23 rd October 2025, rendered upon a rehearing Request for Review No. 85 of 2025, relating to Tender No. KP1/9A.3/RT/14/24-25 for the supply of Single-Phase Smart Meters (Local Manufacturers And Assemblers). The Applicant states that it had participated as an eligible bidder in Category 2 and was duly notified on 17 th July 2025 that it had been awarded Lot 2 of Category 2.
7. That following the award, the 1 st Interested Party (Chint Meters & Electric Kenya) challenged its disqualification by filing Request for Review No. 85 of 2025, and in a decision dated 19 th August 2025, the 1 st Respondent annulled the entire procurement process and directed re-tendering across all categories. That this decision was challenged in three judicial review applications HCJR/E262/2025, HCJR/E264/2025 and HCJR/E271/2025 which were consolidated and determined by the High Court on 9 th October 2025.
8. The High Court is said to have quashed the Board’s decision, upheld the Applicant’s award as a lawful award, found the cancellation and re-tendering orders to be excessive and disproportionate, affirmed the separability of the tender categories, and expressly prohibited any re-advertising or re-tendering of Categories 1, 2, and 3. It is urged that no appeal was filed, rendering the judgment final and binding under section 175 of the PPAD Act.
9. The Applicant’s case is that despite being a party to the proceedings before the High Court, the 1 st Respondent reheard the review application and, in its impugned decision of 23 rd October 2025, again nullified the notification of award for Categories 2 and 3 and directed fresh re-tendering. The Applicant contends that this decision directly contravenes the binding High Court judgment and is therefore null and void under section 175(6) of the PPAD Act.
10. The Applicant further argues that the impugned decision is unlawful and ultra vires for several reasons. First, that the request for review was time-barred, as it sought to challenge the evaluation and qualification criteria contained in the tender document and Addendum No. 1 issued on 13 th June 2025, contrary to section 167(1) of the PPAD Act and the applicable regulations.
11. Second, that the 1 st Respondent lacked jurisdiction to entertain a challenge to Category 2 since the 1 st Interested Party was not a tenderer in that category and therefore lacked locus standi . Third, that the 1 st Respondent failed to consider mandatory and legally relevant considerations, including the binding High Court orders, the doctrine of res judicata, and prior judicial findings on the lawfulness of the evaluation criteria and proportionality of remedies.
12. The Applicant also challenges the decision on grounds of irrationality and unreasonableness, contending that Public Procurement Administrative Review Board contradicted itself by acknowledging that the evaluation complied with the tender document while simultaneously concluding that the evaluation and award were unlawful.
13. The Applicant states that the Board contradicted itself within its own decision creating unreasonableness at paragraphs 203 and 215 wherein it concluded that evaluation and award in the subject tender was not carried out in accordance with the procedures and criteria for evaluation and award set out in the Tender Document, yet at paragraph 193, the Board extensively observed, upon review of the confidential documents submitted by the 2 nd and 3 rd Respondents, that the successful bidders were determined through a procedure that was compliant with the mode of award stated in the tender document which therefore implies full compliance with section 80(2) and 86 of Public Procurement Asset Disposal Act as read with Article 227(1) of the Constitution.
14. The Board is said to have acted unreasonably in failing to find that the 1 st Interested Party herein lacked locus standi to commence and continue the request for review application with respect to the distinct and separate Category 2 of the subject tender where the said 1 st Interested Party was not a tenderer and further finding that it had pleaded loss and damage that it suffered and/or risked to suffer.
15. It is further argued that no reasonable tribunal could repeat actions already declared illegal, irrational, and disproportionate by the High Court, or direct re-tendering in the face of express prohibitory orders. The Applicant maintains that the decision bears no rational connection to the evidence before the Board or the purpose of the statutory review mandate.
16. It also urges that Board violated its legitimate expectations by disregarding binding court orders, exceeding its statutory jurisdiction, and cancelling a tender award that had crystallised into a lawful and protected legal right. On these grounds, the Applicant seeks judicial review relief to quash the impugned decision, prohibit its implementation, and uphold the principles and objectives of public procurement under the Public Procurement Asset Disposal Act.
The Applicant in JR E144 OF 2025
17. The Applicant in JR E 144 of 2025 is Magnate Ventures Limited. It filed an originating motion dated 6 th November 2025 and filed on 7 th November 2025.
18. The application is brought pursuant to Articles 10, 47, 48, 50 (1) and 227 of the Constitution of Kenya 2010, Sections 7, 9, 10 and 11 of the Fair Administrative Actions Act.
19. The application seeks the following orders:
a. An order of CERTIORARI do issue to remove into this Honourable Court and quash the entire decision of the Public Procurement Administrative Review Board dated 23 rd October 2025 in Public Procurement Administrative Review Board Application No. 85 of 2025 (Chint Meters & Electric Kenya Company Limited v The Chief Executive Officer/Managing Director, Kenya Power & Lighting Company PLC & Others), in respect of Tender No. KP1/9A.3/RT/14/24-25 for the Supply of Single-Phase Smart Meters (Local Manufacturers and Assemblers), the said decision having been made upon a rehearing pursuant to the orders of the High Court at Nairobi issued on 9 th October 2025 in HCJR/E262 of 2025 (consolidated with HCJR/E264 of 2025 and HCJR/E271 of 2025).
b. That an order of CERTIORARI do issue to remove into this Honourable Court and quash the letter dated 5 th November 2025 from the 2 nd and 3 rd Respondents , referenced KP1/9A3/RT/14/24-25/JN/bkk, cancelling Tender No. KP1/9A3/RT/14/24-25 for the Supply of Single-Phase Smart Meters , which cancellation was purportedly made pursuant to the orders of the Public Procurement Administrative Review Board dated 23 rd October 2025 in PPARB Application No. 85 of 2025- Chint Meters & Electric Kenya Company Limited v The Chief Executive Officer/Managing Director, Kenya Power & Lighting Company PLC & Others , in respect of Tender No. KP1/9A3/RT/14/24-25 for the Supply of Single-Phase Smart Meters (Local Manufacturers and Assemblers) , the said decision having been made upon a rehearing pursuant to the orders of the High Court at Nairobi issued on 9 th October 2025 in HCJR No. E262 of 2025 (consolidated with HCJR No. E264 of 2025 and HCJR No. E271 of 2025).
c. An order of PROHIBITION do issue restraining the 2 nd and 3 rd Respondents, whether by themselves, their servants, agents, or any other person acting under their authority, from implementing, enforcing, or in any way giving effect to the impugned decision of the Public Procurement Administrative Review Board dated 23 rd October 2025, or from proceeding with any procurement or contractual process arising therefrom.
d. In the alternative to Order No. 2, this Honourable Court be pleased to issue an order of PROHIBITION, restraining the 2 nd and 3 rd Respondents, whether by themselves, their servants, agents, or any other person acting under their authority, from re-advertising or re-tendering for Categories 2 and 3 under Tender No. KP1/9A.3/RT/14/24–25, or from issuing fresh invitations or procurement processes for the same goods, until a lawful and transparent rehearing of the procurement process is undertaken.
e. Spent
f. Costs of these proceedings be provided for.
g. Such other alternative reliefs as this Honourable court may deem just and expedient.
20. The Applicant’s case is that the 3 rd Respondent, as the Procuring Entity, advertised its intention to procure the subject tender through limited tendering pursuant to Section 102(2)(c) and (d) of the Public Procurement and Asset Disposal Act (PPADA) and Regulation 89(8) of the 2020 Regulations, with tender documents to be downloaded from its website.
21. The 2 nd Respondent is said to have later issued three addenda clarifying and or modifying various aspects of the Tender Document. The Applicant and the 1 st to 5 th Interested Parties it is urged submitted bids across different categories, and following evaluation, the 2 nd Respondent issued a Notification of Intention to Award dated 17 th July 2025, awarding the Applicant Lot 3 of Category 2 of the subject tender, and notifying unsuccessful bidders of the reasons for their disqualification.
22. That aggrieved, the 4 th Respondent filed Request for Review No. 85 of 2025 before the 1 st Respondent, which on 19 th August 2025 allowed the request, cancelled all awards, and directed a fresh tendering process. Subsequently, that several parties filed judicial review applications, and that by a consent dated 17 th September 2025, the matters HCJR 8262/2025, HCJR 8264/2025, and HCJR E271/2025 were consolidated. The Applicant states that on 9 th October 2025, the High Court found the Board’s decision illegal, irrational, unreasonable, and procedurally improper, and it quashed the same, prohibited re-advertisement, and remitted the matter back for rehearing.
23. That upon rehearing on 22 nd October 2025, the 1 st Respondent issued the impugned decision on 23 rd October 2025, nullifying and setting aside Categories 2 and 3 of Tender No. KP1/9A.3/RT/14/24-25 and ordering a fresh procurement for the Supply of Single-Phase Smart Meters (Local Manufacturers and Assemblers) for those categories.
24. The Applicant challenges this decision as illegal, irrational, and ultra vires , as according to it first, the Board erred at paragraph 211 by faulting notification letters for not disclosing unit prices per lot, erroneously citing section 87(3) of the Public Procurement Asset Disposal Act. The Applicant argues that Section 87(3) of the Act and Regulation 82 only require disclosure of (i) reasons for unsuccessful bids, (ii) names of successful bidders, and (iii) total contract price or unit prices, and do not mandate unit prices for each specific lot. That by imposing such a requirement, the Board introduced obligations not found in the law, rendering its finding an error of law and contrary to the principle of legality.
25. Second, the Applicant contends that the Board unreasonably criticized the Procuring Entity’s due diligence process, despite compliance with Section 83 of the Act and Regulation 80. It is urged that the Tender Document required factory inspection only for Local Manufacturers and Assemblers who had never previously supplied meters to the Procuring Entity and reliance is placed on Clause 2.2.6(ii), Part 1-Preliminary Evaluation Criteria, page 33. The Applicant also contends that the bidders with a proven supply record were expressly exempt from factory inspection as seen under Clause 2.2.6(i), page 33.
26. It is the Applicant’s case that the Evaluation Committee properly conducted due diligence only on Abcos Industrial Ltd and House of Procurement Ltd, who were successful tenderers in Category 3 and had no prior supply history, and prepared due diligence reports as required. That the Board’s view that due diligence should have been conducted for all bidders was irrational, exceeded its jurisdiction, and amounted to an unlawful substitution of its own interpretation of the tender requirements.
27. Third, the Board is said to have acted unreasonably by annulling both Category 2 and Category 3 despite the Request for Review having been filed solely by a bidder that participated only in Category 3. This according to the Applicant violated the Wednesbury reasonableness standard, as no reasonable and law directed tribunal could annul a category in which the applicant before it did not participate. The Board is said to have further ignored a binding finding of the High Court in the earlier consolidated judgments, where the Court is said to have held at paragraph 55 at page 108 of 115 that the decision to cancel the whole tender despite the award criteria for the various categories being separate and distinct was unreasonable and irrational.
28. The Applicant maintains that the categories were in fact independent, as expressly set out in the Tender Document and Addendum No.1, with Category 2 reserved for prior suppliers to KPLC or public entities, and Category 3 reserved for all local manufacturers and assemblers. That evaluation and awards in each category were to be made separately under ITT 3.6 and ITT 40, based on lowest evaluated price per lot. According to the Applicant by treating the two categories as “interlinked,” the Board effectively rewrote the tender contrary to Section 80(2) of the PPADA, which requires evaluation strictly per the tender document.
29. The Applicant urges that the Originating Motion is merited, that the impugned decision is illegal, irrational, unreasonable, and ultra vires , and that the Court has jurisdiction under Section 175 of the PPADA to grant judicial review. The Applicant further states there is no other internal mechanism for redress, and unless the orders sought are granted, it will suffer substantial loss, including the value of its duly awarded tender in Category 3, Lot 2, amounting to Kshs. 561,015,000.00 (exclusive of VAT) and consequential damages, rendering its right to judicial review nugatory.
Responses
The 1 st Respondent-Public Procurement Administrative Board’s Replying Affidavit
30. The 1 st Respondent filed replying affidavits in both matters both of which are sworn on 17 th November 2025 by Philemon Kiprop who introduces himself as the Secretary of the Public Procurement Administrative Review Board, the 1 st respondent herein.
31. Relying on Kenya Pipeline Company Limited v Hyosung Ebara Company Limited & 2 Others [2012] KECA 104 (KLR), the 1 st Respondent asserts that it is a specialised statutory tribunal established to address breaches of procurement law, with wide powers under the Public Procurement and Asset Disposal Act, including the power to annul anything done by a procuring entity and substitute its decisions for those of a procuring entity. That as such, the administrative review envisaged under the Act is indeed an appeal, and from the 1 st Respondent’s nature, it follows that its decisions in matters within its jurisdiction should not be lightly interfered with.
32. The 1 st Respondent recounts that on 29 th July 2025, Chint Meters & Electric Kenya Company Limited, filed Request for Review No. 85 of 2025 challenging Tender No. KP1/9A.3/RT/14/24-25 and sought, inter alia, annulment of the procurement proceedings, cancellation of the letters of intention to award dated 17 th July 2025, re-evaluation of its bid, site visits to confirm local manufacturing and assembly status, and costs.
33. That on 19 th August 2025, the Board exercised its powers under the Public Procurement Asset Disposal Act and cancelled all awards with respect to Lot 1 and Category 1 and Lots 1,2,3, and 4 with respect to under Categories 2. It also cancelled and set aside awards of Lots 1,2 and 3 with respect to category 3 which was issued to Abcos Industrial Ltd, Magnate Ventures Ltd and House of Procurement Limited respectively. The Board also directed for the re-tendering of the quantities of meters under Category 1, 2 and 3 afresh.
34. That Following judicial review proceedings in HCJR E262 of 2025 consolidated with E264 of 2025 and E271 of 2025, the High Court on 9 th October 2025 quashed the Board’s decision, prohibited re-tendering or re-advertisement of Categories 1, 2, and 3, and remitted the matter to the Board for reconsideration within 14 days.
35. The 1 st Respondent’s case is that in compliance with these orders, it reheard the request for review on 22 nd October 2025 and on 23 rd October 2025 nullified the notifications of award for Categories 2 and 3, cancelled the procurement proceedings for those categories only, directed re-tendering for Categories 2 and 3, and ordered each party to bear its own costs.
36. The 1 st Respondent states that in reaching its decision, it considered all pleadings, submissions, authorities, and confidential documents submitted pursuant to section 67(3)(e) of the Act. It identified and determined several jurisdictional and substantive issues, including its jurisdiction to rehear the matter, the competence and timeliness of the Request for Review under section 167(1), locus standi and pleading of loss, reliance on confidential information, the mode of award, compliance of evaluation and award with the Tender Document, the Constitution, the Public Procurement Asset Disposal Act, and Regulations 2020, compliance with section 87(3) of the Act and Regulation 82, and the appropriate remedies.
37. On preliminary objections, it is urged that the Board considered an objection raised by Smart Meter Technology Limited, contending that the person who swore the Supporting Affidavit in the Request for Review lacked authority to act on behalf of the Chint Meters & Electric Kenya Co. Ltd by dint of Section 37(2) of the Companies Act and Order 4 Rule 1 (4) of the Civil Procedure Rules. The 1 st Respondent contends that it held that this was not a pure question of law since its determination would necessitate examining evidence and as such, could not be determined as a preliminary objection.
38. That it found that while the ground relating to absence of site visits was time-barred under section 167(1), the challenge to the application of the mode of award crystallised upon issuance of the notification of intention to award on 17 th July 2025 and was therefore filed within time. The Board further held that the Request for Review was not anchored on confidential information contrary to section 67 of the Act and that Chint Meters & Electric Kenya Co. Ltd had sufficiently pleaded loss and damage to meet the threshold under section 167(1).
39. On the merits, the 1 st Respondent states that it addressed the mode of award under ITT 40 as amended by Addendum No.1 and found that the tender adopted a structured and sequential award system across Categories 2 and 3, where each bidder could only be awarded one lot with the highest quantity per category based on eligibility, with subsequent lots allocated sequentially subject to prevailing market price. The Board is said to have interpreted Categories 2 and 3 as interlinked for purposes of award and found that the Evaluation Committee’s approach was neither transparent, predictable, nor lawful.
40. That relying on Article 227 of the Constitution and sections 80, 83, 86 and 87 of the Act, the Board found that the evaluation and award process lacked transparency, failed the test of cost-effectiveness, and did not comply with the Tender Document. The Board is said to have also noted the absence of a detailed evaluation summary, selective and inconsistent application of due diligence contrary to section 83, and failure to conduct due diligence on certain bidders prior to award. Further, that the Board also found that the letters of notification of intention to award failed to disclose unit prices for each lot as required under section 87(3) of the Act and Regulation 80(3), thereby compounding opacity in the process.
41. The 1 st Respondent maintains that these findings were consistent with, and in part affirmed by, the High Court in the consolidated judicial reviews, and that certain issues raised by the Applicants are res judicata . The Board is said to have further cautioned against reliance on outdated market surveys and underscored the need for adherence to stated evaluation criteria, citing Minet Kenya Insurance Brokers Limited v PPARB & Others Judicial Review No. E092 of 2025 where according to it the court cautioned against introduction of unstated evaluation criterion in the Tender Document and pointed out in its Decision that the Evaluation Committee is under a duty to confine itself to the procedures and criteria set out in the Tender Document when evaluating bids as read with the provisions of the Act, Regulations 2020 and the Constitution.
42. In conclusion, the 1 st Respondent asserts that its decision dated 23 rd October 2025 was lawful, reasonable, procedurally fair, rational, and within its statutory mandate under the Constitution, the PPADA, Regulations 2020, and the Fair Administrative Action Act. It denies any illegality, irrationality, or jurisdictional overreach and prays that the Originating Motion be dismissed with costs, or in the alternative, that no costs be awarded pursuant to section 175(7) of the Act should the decision be set aside.
The 2 nd and 3 rd Respondents’ Responses
43. In response the 2 nd and 3 rd respondents filed replying affidavits in both matters both of which are sworn on 24 th November 2025 by Bernard Kosgei who introduces himself as a Supply Chain Officer at the 3 rd Respondent.
44. The 2 nd and 3 rd Respondents state that they are equally dissatisfied with the 1 st Respondent’s decision of 23 rd October 2025, which cancelled the tender awards they had issued for categories 2 and 3 of the smart-meter tender. That they support the present application for that reason. They explain that the 3 rd Respondent, a public utility company listed on the Nairobi Stock Exchange, is responsible for electricity distribution nationwide. They state that the principal legislative framework governing the operations of the 2 nd respondent is the Constitution of Kenya, 2010, Energy Act, 2019, Public Procurement and Asset Disposal Act, 201, Public Procurement and Asset Disposal Regulations, 2020, Public Officers Ethics Act, CAP18, State Corporations Act, CAP446 and the Public Finance Management Act, 2012.
45. They emphasize that energy meters are essential for accurate billing, revenue collection, new customer connections, and meter replacements, and that any interruption in their annual procurement process directly harms consumers, slows service delivery, and causes significant revenue losses.
46. The 2 nd and 3 rd Respondents explain that there is an urgent backlog of about 420,000 electricity meters, which continues to grow and is already causing serious harm to the public. That without these meters, new customers including hospitals, schools, government facilities
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