Marsep Petroleum Dealers VS PUBLIC PROCUREMENT ADMINISTRATIVE REVIEW BOARD AND Nairobi County Government

The judgment in this case was set to be delivered on 8 June 20223. However, the court will not be sitting on that date as I will be attending High Court Judges Leaders Conference in Mombasa. According to section 175 (3) judgment has to be delivered within 45 days of the date of filing the application failure of which the judgment will be rendered a nullity. For this reason I am posting the judgment on this platform earlier than the scheduled date for its delivery. Parties can obtained a signed hard copy from the registry. 

-VERSUS-

PUBLIC PROCUREMENT

ADMINISTRATIVE REVIEW BOARD…………………1ST RESPONDENT

ACCOUNTING OFFICER

NAIROBUI CITY COUNTY GOVERNMENT…………2ND RESPONDENT

NAIROBI CITY COUNTY GOVERNMENT……………3RD RESPONDENT

ex parte:

MARSEP PETROLEUM DEALERS

JUDGMENT

The motion before court is dated 4 May 2023 and is expressed to be brought under sections 8 and 9 of the Law Reform Act cap. 26, sections 7, 8, 9, 10 and 11 of the Fair Administrative Action Act No. 4 of 2015, Order53 of the Civil Procedure Rules and Articles 10, 47, 159 and 227 of the Constitution. The applicant seeks judicial review orders of certiorari, prohibition and mandamus. The prayers for these orders have been framed thus:
“
1. An order of certiorari to remove into the High Court and quash the 1st respondent’s decision dated 18th April 2023 in Public Procurement Administrative Review Board Application No. 17 of 2023 for tender No. NCC/ENV//ONT/108/2022-2023 for Supply and Delivery of Heavy Equipment/Machines, Trucks and Skips.

2. An order of prohibition directed at the 2nd and 3rd respondents prohibiting and restraining them from holding negotiations with the successful tenderers and/or entering into contracts with the said tenderers in respect of tender No. NCC/ENV//ONT/108/2022-2023 pending the hearing and determination of this application or as this Honourable Court shall direct.

3. An order of mandamus directing the 1st respondent to hear and determine on merit the applicant’s request for review dated 28th March 2023 in Public Procurement Administrative Review Board Application No. 17 of 2023.
Filed alongside this application is a statutory statement dated 2 May 2023 and an affidavit sworn by one Joseph Mbugua Ngugi on even date to verify the facts relied upon.
According to the statement and affidavit, the County Government of Nairobi, the 3rd respondent in this application, invited bids in a tender for supply and delivery of heavy equipment or machines, trucks and skips more particularly described as Tender No. NCC/ENV//ONT/108/2022-2023 for Supply and Delivery of Heavy Equipment/Machines, Trucks and Skips.
According to the invitation to tender, a set of tender documents was to be obtained electronically from the county website www.nairobi.go.ke or PPIP website www.tenders.go.ke.
The applicant downloaded the tender documents but could not submit its bid for the reason that the conditions in the tender did not comply with the requirements of the Public Procurement and Asset Disposal Act, 2015 (the Act) and the Public Procurement and Asset Disposal Regulations, 2020 (the regulations).
The 3rd respondent is also alleged to have awarded the different lots of the tender to five different tenderers.
The applicant invoked section 167(1) of the Act and challenged the 2nd and 3rd respondent’s decision by filing a request for review before the 1st respondent. This application was registered as Request for Review No. 17 of 2023. In this application, the applicant complained that it was unable to submit its bid because the 3rd respondent included in the tender document irregular and illegal qualifications that effectively barred the applicant from participating in the subject tender.
However, in a decision rendered on 18 April 2023, the 1st respondent dismissed the application on the ground that it lacked jurisdiction to hear and determine it. It is this decision that is impugned in the present suit.
According to the applicant, the 1st respondent erroneously held that it lacked jurisdiction to entertain the applicant’s application for review and in arriving at that decision, the 1st respondent did not take into consideration the applicant’s submissions on whether it had jurisdiction or not.
The applicant also argues that in arriving at the decision it did, the 1st respondent failed to correctly interpret the provisions of section 167 (1) of the Act as read with regulation 203 (2) of the regulations. The 1st respondent is also alleged to have failed to exercise its discretion reasonably and to act in good faith and also failed to exercise its power under section 173 of the Act.
It appears the 1st respondent did not file a reply to the application but filed submissions on points of law. I will revert to the submissions in due course. The 2nd and 3rd respondents swore a replying affidavit in opposition to the motion. The affidavit was sworn by Edna Mayieka in her capacity as the procurement officer of the 3rd respondent.
According to Mayieka, the tender in question was advertised on 27 January 2023 and was set for closure on 10 February 2023. Twenty-one bids were received and evaluated. An award was eventually made and all those who participated in the tender were accordingly informed on 7 March 2010.
The 3rd respondent, by and large, supported the respondent’s position that it could not entertain the applicant’s request for review for want of jurisdiction. It has been urged on its behalf that in arriving at the decision it did, the 1st respondent correctly interpreted section 167 (1) of the Act as read with regulation 203 (2) of the regulations. 
I have had the opportunity to consider the parties’ submissions and the only question that comes to the fore is whether the 1st respondent had jurisdiction to entertain the applicant’s request for review. From the applicant’s perspective, the argument is that the 1st respondent did not interpret the law correctly in coming to the conclusion that it did not have jurisdiction. The respondents, on the other hand, are of the contrary opinion; their argument is that the 1st respondent apprehended the law and came to the correct conclusion in holding that it lacked the requisite jurisdiction to determine the applicant’s application.
I must state at the outset that it is trite that judicial review is about process and not merits of a decision. In exercise of a judicial review jurisdiction, a judicial review court does not embark on a fault finding mission aimed at substituting a tribunal’s decision with its own. It was so held in Chief Constable of the North West Police vs Evans (1982) 3 ALL ER 141 at 154 where the court stated that:
“Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power.”

It was held further in this case that:
“The remedy by way of judicial review under RSC…, vastly increased in extent, and rendered, over a long period in recent years, of infinitely more convenient access than that provided by the old prerogative writs and actions for a declaration, is intended to protect the individual against the abuse of power by a wide range of authorities, judicial, quasi-judicial, and …administrative. It is not intended to take away from those authorities the powers and discretions properly vested in them by law and to substitute the courts as the bodies making the decisions. It is intended to see that the relevant authorities use their powers in a proper manner…and not to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in question. The function of the court is to see that lawful authority is not abused by unfair treatment and not to attempt itself the task entrusted to that authority by the law.” (Per Lord Hailsham at 1160E-H).

Related to this point is the understanding that in determining an application before it, a judicial review court does not thereby assume appellate jurisdiction. This position was well captured in OJSC Power Machines Limited, TransCentury Limited, and Civicon Limited (Consortium) v Public Procurement Administrative Review Board Kenya & 2 others [2017] eKLR Civil Appeal No. 28 of 2016 where the Court of Appeal noted as follows:
“Save for a limited scope, which we shall return to later, the court, considering a judicial review application, must never consider its role as appellate court and must avoid any temptation to go into the substance of the impugned decision itself or to ask questions, whether there was or there was no sufficient evidence to support the decision of the public body concerned. It is not for the court or individual judges to substitute their opinion for that of the public body constituted by law to decide the matter in question …Whether that decision was right or not, the affected party ought to challenge it on appeal. In reaching its determination, it must, however, be recognized that a tribunal or statutory body or authority has jurisdiction to err and the mere fact that in the course of its inquiry it errs on the merits is not a ground for quashing the decision by way of judicial review as opposed to an appeal. It is only an appellate tribunal which is empowered and in fact enjoined in cases of the first appeal to re-evaluate the evidence presented at the first instance and arrive at its own decision on facts. Whereas a decision may properly be overturned on an appeal, it does not necessarily qualify as a candidate for juridical review. See East African Railways Corp. vs. Anthony Sefu Far-Es-Salaam (1973) EA 327.”
The task for a judicial review court is limited to preventing abuse of power by public bodies and in doing so, all the court has to consider is whether, in reaching the impugned decision, the means by which the decision was arrived at was marred by all or any of the judicial review grounds of illegality, irrationality or procedural impropriety.
I have carefully considered the applicant’s application and noted that none of these grounds has been raised in the statutory statement. Before going any further, I must state that this omission, by itself, is fatal to the applicant’s application because it is mandatory that the grounds for judicial review must be stated in the statement; the court will not entertain any ground at the hearing of the motion other than those expressly stated in the statement. 
For the avoidance of doubt, Order 53 Rule 1(2) states in mandatory terms that the statement accompanying the application must contain, among other things, the grounds upon which the application is made. It reads as follows:  
(2) An application for such leave as aforesaid shall be made ex parte to a judge in chambers, and shall be accompanied by a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought, and by affidavits verifying the facts relied on. (Emphasis added).
And Order 53 Rule 4(1) states unambiguously that no grounds should be relied upon except those specified in the statement accompanying the application for leave.
These grounds have not been left for speculation. They were enunciated in the English case of Council of Civil Service Unions versus Minister for the Civil Service (1985) A.C. 374,410 in which Lord Diplock set out the three heads which he described as “the grounds upon which administrative action is subject to control by judicial review”. These grounds are illegality, irrationality and procedural impropriety. While discussing susceptibility of administrative actions to judicial review and, in the process defining these grounds, the learned judge stated as follows: 
“My Lords, I see no reason why simply because a decision-making power is derived from a common law and not a statutory source, it should for that reason only be immune from judicial review. Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call “illegality,” the second “irrationality” and the third “procedural impropriety.” That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of “proportionality” which is recognised in the administrative law of several of our fellow members of the European Economic Community; but to dispose of the instant case the three already well-established heads that I have mentioned will suffice.
By “illegality” as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.
By “irrationality” I mean what can by now be succinctly referred to as “Wednesbury unreasonableness” (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the court's exercise of this role, resort I think is today no longer needed to Viscount Radcliffe's ingenious explanation in Edwards v. Bairstow [1956] A.C. 14 of irrationality as a ground for a court's reversal of a decision by ascribing it to an inferred though unidentifiable mistake of law by the decision-maker. “Irrationality” by now can stand upon its own feet as an accepted ground on which a decision may be attacked by judicial review.
I have described the third head as “procedural impropriety” rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. But the instant case is not concerned with the proceedings of an administrative tribunal at all.”
These grounds of illegality, irrationality and procedural impropriety are ordinarily regarded as the traditional grounds for judicial review. The court will intervene and grant the remedy for judicial review if any of them is proved to exist. But as Lord Diplock suggested, the list is by no means exhaustive. The learned judge hastened to add that further development of this area of law may yield further grounds on a case by case basis and it is in this spirit that the principle of proportionality as a further ground for judicial review has been developed.
Turning back to the applicant’s application, it is not apparent from the statement accompanying the application which of the grounds of judicial review the applicant is relying upon. The grounds have not been stated in precise, specific and unambiguous terms.  All the applicant has stated as grounds are what I gather to be depositions in the affidavit that has been sworn in support of the facts relied upon.
The applicant has, in effect, left it to court to conjecture of what the grounds in support of its application are. But the court cannot, and need not speculate on what is on the mind of any particular applicant because it is the applicant’s obligation, in the first place, to state categorically the ground or grounds upon which he seeks a judicial review court to intervene and impeach the administrative action in issue.
While reiterating the importance of stating grounds for judicial review in concise and precise terms Michael Fordham in his book, Judicial Review Handbook, at Paragraph 34.1 states as follows:
“The need to identify and express accurately the possible grounds for judicial review is not simply a matter of analytical nicety. It is one of practical necessity. The provisions of the new order require the accurate identification of (a) potentially applicable grounds and (b) the time at which they arose. Given the frequent presence of multiple targets, the elusive nature of certain grounds, their disarming interrelationship, and the understandable fear of missed opportunity, it is easy to see why public lawyers may feel tempted to ‘throw everything’ including grounds which are dangerously close to the inconceivable. This approach is unlikely to endear them to the court.”
The ‘new order’ referred to in this passage is Order 53 of the Rules of the Supreme Court of England whose provisions are more or less in pari materia with our own Order 53 of the Civil Procedure Rules, 2010. The point is, however, clear that courts will not entertain applications where grounds have not been identified and accurately stated.  Stating the grounds in precise terms is not, as it were, a matter of analytical nicety but it is a practical necessity.
It follows that where the grounds are not stated, the application is fatally defective as, strictly speaking, it has no foundation upon which it is built. The applicants’ application is such an application and for this reason it has to fall. 
Turning back to section 167 (1) of the Public Procurement and Asset Disposal Act, it is provided that a candidate or a tenderer who has either suffered or risks suffering loss or damage as a result of breach of a duty by the procuring entity has a window of fourteen days from the date of the notification of the award or when the breach occurred to lodge the application for review before the Public Procurement Administrative Review Board. This section reads as follows:
167.  Request for a review
(1) Subject to the provisions of this Part, a candidate or a tenderer, who claims to have suffered or to risk suffering, loss or damage due to the breach of a duty imposed on a procuring entity by this Act or the Regulations, may seek administrative review within fourteen days of notification of award or date of occurrence of the alleged breach at any stage of the procurement process, or disposal process as in such manner as may be prescribed.
There is no dispute that the applicant was a candidate because it has categorically stated that it had obtained the tender documents for purposes of submitting its tender. When it took such a step, it assumed the description of a ‘candidate’ who is defined in section 2 of the Act as “a person who has obtained the tender documents from a public entity pursuant to an invitation notice by a procuring entity.”
The applicant had a problem with the tender documents because in its words:
“The ex parte applicant (the applicant) downloaded the tender but could not submit a bid because the conditions in the tender did not comply with the requirements of the Public Procurement and Asset Disposal Act, 2015 (hereinafter the Act) and the Public Procurement and Asset Disposal Regulations, 2020(hereinafter the Regulations 2020).”
The applicant has not indicated when he downloaded the tender but the tender document exhibited to the affidavit verifying the facts relied upon shows that the closing date for submission of bids was 10 February 2023. Assuming that the applicant downloaded the tender document on this last day, it is taken to have noticed the breach complained of on this particular day and, therefore, for purposes of filing a request for review under section 167(1), time started ticking on this particular date. Thus, the fourteen-day period lapsed on 25 February 2023.
It follows that when the applicant filed its application on 28 March 2023, it was well out of time and there should not have arisen any dispute that the applicant was time-barred.
As much as the 1st respondent determined that it had no jurisdiction to entertain the application, there was effectively no application before it for determination. The purported application was a nullity ab initio.
In the ultimate, I find no reason to disturb the 1st respondent’s decision in dismissing the applicant’s request for review. In any event, I have already held that the application is fatally defective because no grounds of judicial review have been expressed in the statutory statement. Besides being defective, the application is misconceived and an abuse of the process of this Honourable Court. It is struck out with costs to the respondents. It is do ordered.
Signed, dated and emailed to parties on 5 June 2023
Ngaah Jairus
JUDGE