Background;
1. The Application before this Court is the Applicant’s dated 8th October, 2024 brought under under Sections 8 and 9 of the Law Reform Act, Cap 26, Sections 7, 8, 9, 10 and 11 of the Fair Administrative Actions Act, Order 53 Rule 1 of the Civil Procedure Rules, Articles 10, 47 and 227 (1) of the Constitution of Kenya and all enabling provisions of the law.
2. The application seeks the following orders;
1) An order of Certiorari to remove into the High Court and quash the Respondent’s decision dated 24th September 2024 in Public Procurement Administrative Review Board’s Request for Review No. 86 of 2024 in respect of Tender No. SNSC/427C/2024/2025 for the Provision of Life Assurance Services.
2) An order of Mandamus directing the Respondent to hear and determine on merit Request for Review No. 86 of 2024 in respect of Tender No. SNSC/427C/2024/2025 for the Provision of Life Assurance Services.
3) An order that costs of this application be borne by the Respondent and the Interested Parties.
3. The Application is supported by a statutory statement dated 4th October 2024 and verifying affidavit sworn by George Olola of even date.
4. The Applicant’s case is that the 2nd Interested Party invited bids for Tender No. SNSC/427C/2024/2025 for the Provision of Life Assurance Services (hereinafter ‘the Tender’).
5. The Applicant avers that on 9th July 2024, 2nd Interested Party re-tendered Tender No. SNSC/427C/2023/2024 for the Tender and on 25th July 2024, the 1st and 2nd Interested Parties issued an addendum in which it introduced a completely new tender document and extended the tender opening date from 26th July 2024 to 31st July 2024.
6. The Applicant deponed that it participated in the Tender and offered to provide the brokerage services at the tender sum of Kshs. 2,512,223/- and given that the existing insurance covers were lapsing on 31st August 2024 and the 2nd Respondent had not concluded the tendering process, the Applicant being the holding broker wrote to the 2nd Respondent on 26th August 2024 requesting for instructions to extend the covers so as not to leave the 2nd Respondent exposed.
7. The Applicant further deponed that through a notification of intention to award dated 12th August 2024 and served upon the Applicant through EMS on 27th August 2024, the 1st Respondent informed the Applicant that its tender was unsuccessful for the reason that the Applicant’s tender failed to meet mandatory requirement by submitting a difference referenced tender document.
8. The Applicant being aggrieved with the decision challenged the 1st Interested Party’s decision and requested for Review No. 86 of 2024 filed on 3rd September 2024 and in a decision rendered on 24th September 2024, the Respondent struck out the Request for Review on the grounds that;
a) The same was filed outside the 14 days’ statutory timelines stipulated under section 167 (1) of the Act read with Regulation 203 (2) (c) (ii) of Regulations 2020 and thus divested the Board of its jurisdiction to hear and determine the Request for Review, and
b) The contract dated 1st September 2024 was signed after the lapse of the standstill period provided under section 135 (3) of the Act is valid and accordingly, the Board is divested of jurisdiction to entertain the Request for Review by dint of section 167 (4) (c) of the Act.
9. The Applicant further contends the validity of the contract signed by the Respondent and the 2nd and 3rd Interested Parties on 1st September 2024 which the Respondent claims was signed after the lapse of the standstill period provided under section 135 (3) of the Act, and accordingly the Board is divested of jurisdiction to entertain the request for review by dint of the provisions of section 167 (4) (c) of the Act.
10. Additionally, the strict statutory timelines stipulated under section 175 (3) of the Act, that proceedings must be commenced within fourteen (14) days and finalized within forty-five (45) days from the date of filing, necessitate that this application be heard and determined on a priority basis.
11. The Applicant deponed that the Respondent’s impugned decision was in violation of the provisions of sections 87, 135 (3), 167 (1) and 167 (4) (c) of the Act and failed to exercise its jurisdiction under section 173 of the Act as read with Article 227 (1) of the Constitution and therefore acted ultra vires the Act.
12. Further the Applicant argues the Respondent impugned decision is unfair, unreasonable and violates the Applicant’s legitimate expectation and in violation of Articles 10, 47, 159 (d) and 272 (1) of the Constitution of Kenya and the principles articulated under section 3 of the Act.
13. It is the Applicant’s case that the Respondent acted in error of fact in the interpretation of the Postal Waybill as to the date of service of the notification of award which resulted to it arriving to an unfair and unreasonable decision that the waybill presented by the Applicant portray an attempt by the Applicant to modify or alter the date and time of receipt of the parcel under dispatch. The Respondent is in violation of section 2 (3) of the Kenya Information and Communications Act as read with Regulation 3 of the Kenya Information and Communication (Postal and Courier).
14. The Applicant filed written submissions dated 1st November, 2024 where they submit that for contract to be valid, it must comply with the provisions of section 135 of the Act. Section 135 (3) of the Act enjoins the procuring entity to issue the notification to award in the manner provided under section 87 (1) & (3) of the Act. The procuring entity is required to notify the tender outcome to the successful and unsuccessful tenderers simultaneously.
15. It cites the case of African Merchant Assurance Co. Ltd (AMACO) v Public Procurement Administrative Review Board; Madison General Insurance Kenya Ltd & 2 others (Interested Parties) [2020] eKLR, where the Board held as follows;
“116. The import of the above decision of Justice Nyamweya is that (a) the trigger for purposes of entering into a procurement contract with the successful bidder is the giving/issuance of notification by the procuring entity, (b) the date of receipt of a notification is NOT a factor to be considered under Section 135 of the Act with respect to when a contract is to be executed by a procuring entity unlike in the case of filing a request for review application, and (c) the standstill period under section 135 of the Act starts running from the time of sending of the notification and not on receipt of the notification.”
16. The Applicant submits that the above decision is contrary to the spirit of S. 135 (3) of the Act as the purport of the said decision is to deny a tenderer the opportunity to challenge the decision of a procuring entity after the execution of a contract, which contract may have been executed in bad faith and to defeat the cause of justice. This is in violation of the provisions of the Fair Administrative Action Act and Article 47 of the Constitution.
17. The Applicant further submits that the correct interpretation of section 135 (3) of the Act is as held by the Review Board in its decision in African Merchant Assurance Co. Ltd (AMACO) v Public Procurement Administrative Review Board; Madison General Insurance Kenya Ltd & 2 others (Interested Parties) [2020] eKLR is: -
“This Board observes that one of the most important functions that a letter of notification serves is to enable an aggrieved tenderer to exercise its right to administrative review within fourteen (14) days from the date of receiving such letter of notification. The issuance of notification to bidders is not deemed to be the date of the letters of notification, but the date when bidders receive their respective letters of notification.
It is also required of a procuring entity to notify the successful and unsuccessful bidders of the outcome of their bids simultaneously, so that all bidders receive their respective letters of notification around the same time for the fourteen-day stand-still period to start running…”
18. It is the Applicant’s submission that the Respondent is bound by the stare decisis rule in as far as the decision in African Merchant Assurance case is concerned.
19. It cites the case of Public Procurement Administrative Board v Four M Insurance Brokers Limited & 3 others (Civil Appeal E1009 of 2023) [2024] KECA 79 (KLR) (9 February 2024) (Judgment), where it was stated as follows;
“A narrow construction of the jurisdiction of the appellant will have untold ramifications in the sense that it will leave the litigants aggrieved with no obvious recourse.”
“...Put another way, section 164 (7) implies a jurisdiction on the part of the appellant to entertain an application as to whether a contract is signed in accordance with Article 135, and is meant to address the obvious mischief of the signing of illegal procurement contracts so as to oust the jurisdiction of the appellant. The Learned Judge of the superior Court therefore adopted a restrictive interpretation of the provisions of Section 167(4)(c) of the Act and erred in not appreciating and considering the existence of the condition- precedent to the ouster of the appellant’s jurisdiction where a contract has been signed.” (Emphasis added).
20. It is the Applicant’s submission that the Respondent misapplied case law in determining it’s request for review and elevated distinguishable case law above express provisions of the Constitution, the Act, the tender document and the facts of the matter before it and request that this court applies the test of discoverability as was held in the case of Republic v Public Procurement Administrative Review Board & 2 others Ex-Parte Kemotrade Investment Limited [2018] eKLR: -
“The answer then to the question when time started to run in the present application can only be reached upon an examination of the breach that was alleged by the 2nd Interested Party in its Request for Review, and when the 2nd Interested Party had knowledge of the said breach.”
21. It further submits that The Board abdicated its mandate under section 28 (1) of the Act and fettered its jurisdiction and the notification of intention to enter into contract dated 12th August 2024 is therefore null and void ab initio for being contrary to clause 41.1 of the tender document, Regulation 82 (3) of the Regulations and section 87 (3) of the Act. It cites the case of PPARB No. 55 of 2024; Lakeparm Cleaners Ltd -vs- Kenya University Teaching & Referral Hospital & 2 Others where the it was held: -
“The above Notification Letter discloses that (i) the Applicant was unsuccessful in the subject tender and (ii) the reasons why the Applicant was unsuccessful.
However, the said letter fails to disclose the following details equally required under the Act and Regulations 2020 (i) the identity of the successful tenderer (ii) the tender price offered by the successful tenderer; and (iii) the reasons for the tenderer emerging successful.”
From the foregoing the Notification Letter issued to the Applicant did not contain all the information contemplated under the Act and the Regulations…Accordingly, the Board finds that the Procuring Entity issued Notification Letters that were not compliant with Section 87 of the act and Regulations 82 of the Regulation 2020”
22. The Respondent failed to exercise its jurisdiction under section 173 of the Act and therefore acted ultra vires the Act and acted Unreasonable as defined by the Wednesbury’s principle of unreasonableness for two (2) reasons. Firstly, no evidence was tendered to show that the date was modified or altered by the Applicant from 13th August 2024 to 26th August 2024.
23. The Applicant thus submits that it’s application has merit prays that this honorable court to grant the prayers for certiorari and mandamus with costs.
Respondent’s case;
24. In opposition to the Applicants’ Application, the Respondents filed a Replying Affidavit dated 1st November, 2024 sworn by James Kilaka and written submissions dated 5th November, 2024.
25. The Respondent deponed that the Applicant on 3rd September 2024 filed a Request for Review Application No. 86 of 2024 dated 3rd September 2024 before it seeking the following orders:
a) An order annulling and setting aside the award of the Tender to ‘successful tenderer’, if any.
b) An order quashing the 1st Respondent’s decision contained in the letter dated 12th August 2024 declaring the Applicant’s bid unsuccessful.
c) A declaration that the Respondents unfairly evaluated the Applicant’s tender at the mandatory evaluation stage.
d) An order directing the Respondents to re-instate and re-evaluate the Applicant’s tender at the mandatory evaluation stage taking into consideration the Board’s directions in this application.
e) An order awarding costs of the request for review to the Applicant.
f) Any other relief that the Review Board deems fit to grant under the circumstances.
26. Thereafter the Respondent in exercise of the powers conferred upon it under the Public Procurement and Asset Disposal Act (hereinafter referred to as “the Act”) on 24th September 2024 reviewed Application No. 86 of 2024 and issued the following orders with respect to Request for Review No. 86 of 2024:
1. The Applicant’s Request for Review dated 3rd September 2024 and filed on even date be and is hereby struck out for want of jurisdiction.
2. Given our findings herein, each party shall bear its own costs in the Request for Review.
27. It is the Respondent’s case that Section 167 of the PPAD Act read as read alongside Regulation 203 of Regulations 2020 identifies the benchmark events for the running of time to be the date of notification of the award or date of occurrence of the breach complained of and by dint of the provision, it took note of the issue in contention as to (i) postage of the letter of notification of the outcome of evaluation of the Applicant’s bid in the subject tender on 13th august 2024 as evidence by the Original EMS Shipment Waybill No. EE110047699KE submitted by the 1st Interested Party herein and (ii) allegation of receipt of the said letter by the Applicant on 27th August 2024. Additionally, the Respondent took cognizance of Regulation 3 of the Kenya Information and Communications (Postal and Courier Services) Regulations, 2010 that speaks to service of documents using the postal office.
28. The Respondent deponed that it observed that the Applicant’s copy of the EMS Shipment Waybill No. EE110047699KE revealed that though the date and time of acceptance as handwritten thereon appeared to read 26/8/24, the date of stamp affixed indicted 13.08.24 which confirmed the postage date to have been on 13th August 2024 and not 26th August 2024 as alleged by the Applicant and thus found that the 1st and 2nd Interested Parties had demonstrated how and when the notification letter was transmitted and when time began to run for purposes of computing time as provided under Section 167(1) of the Act.
29. The Respondent contends that it correctly applied case law and precedent from the superior courts and was guided by the holdings in Civil Appeal No. 35 of 2018 Ederman Property Limited v Lordship Africa Limited & 2 others [2019] eKLR and Civil Appeal E1009 of 2023 [2024] KECA 79 eKLR Public Procurement Administrative Review Board v Four M Insurance Brokers Limited & 3 others and the decision of Justice Nyamweya in High Court Judicial Review Application No. 115 of 2020 African Merchant Assurance Co. Ltd v The Public Procurement Administrative Review Board; Madison General Insurance Kenya Ltd & 2 others which two decisions speak to when time starts running under Section 135 of the Act that is “from the time of sending the notification and not on the receipt of the notification.”
30. The Respondent also deponed that it’s decision with regard to Application No. 86 of 2024 is in line with the doctrine of stare decisis and within the confines of the Constitution, the Act, Regulations 2020, the Fair Administrative Actions Act, the rule of law and Article 227 of the Constitution.
31. The Respondent submits that the Applicant has failed the I’s test as was found in the Pastoli v Kabale District Local Government Council and Others [2008] 2 EA 300 and has not also demonstrated how it acted ultra vires contrary to Section 173 of the Public Procurement and Asset Disposal Act and cited the case of Kenya Pipeline Company Limited case V Hyosung Ebara Company Limited & 2 Others [2012] Eklr where the Court pronounced itself as follows:
“The Review Board is a specialized statutory tribunal established to deal with all complaints of breach of duty by the procuring entity. By Reg. 89, it has power to engage an expert to assist in the proceedings in which it feels that it lacks the necessary experience. S. 98 of the Act confers very wide powers on the Review Board. It is clear from the nature of powers given to the Review Board including annulling, anything done by the procurement entity and substituting its decision for that of the procuring entity that the administrative review envisaged by the Act is indeed an appeal. From its nature the Review Board is obviously better equipped than the High Court to handle disputes relating to breach of duty by procurement entity. It follows that its decision in matters within its jurisdiction should not be lightly interfered with.
Having regard to the wide powers of the Review Board we are satisfied That the High Court erred in holding That the Review Board was not competent to decide whether or not the 1st Respondent’s tender had met the mandatory conditions. The issue whether or not the 1st Respondent’s tender was rightly rejected as unresponsive was directly before the Review Board and the Board had jurisdiction to deal with it.
In conclusion, it is manifest that the application for Judicial Review was not well founded. The 1st Respondent did not establish that the Review Board had acted without jurisdiction or in excess of jurisdiction or in breach of rules of natural justice or that the decision was irrational. The Judicial Review was not confined to the decision making process but rather with the correctness of the decision on matters of both law and fact. So long as the proceedings of the Review Board were regular and it had jurisdiction to adjudicate upon the matters raised in the Request for Review, it was as much entitled to decide those matters wrongly as it was to decide them rightly.
The High Court erred in essence in treating the judicial review application as an appeal and in granting judicial review orders on the grounds which were outside the scope of Judicial Review jurisdiction.”
32. The Respondent prays that the Notice of Motion dated 8th October 2024 be dismissed. However, should this Honourable Court find that the Application is merited, the Respondent prays that the matter be referred back to the it for rehearing within 21 days as stipulated under Section 171 of the Act.
33. As regard to costs the Respondent submits that section 175(7) of the PAD Act forbids award of costs to any party.
1st and 2nd Interested Parties case;
34. In opposition to the Applicants’ Application, the 1st and 2nd Interested Parties (hereinafter referred to as IP’s) filed a Replying Affidavit dated 17th October, 2024 sworn by Moses Onyango Odhiambo and written submissions dated 24th October, 2024.
35. The 1st and 2nd IP’s aver that communication of intention to award the Tender was made on 12th day of August, 2024 and posted on 13th day of August, 2024 and the standstill period lapsed on the 27th day of August, 2024 and award made unchallenged.
36. The 1st and 2nd IP’s deponed that the Applicant quoted the wrong period in the underwriter’s quotation submitted i.e. 1st July, 2024 - 30th June, 2025 while the 2nd Interested Party’s bid was for the period 1st September, 2024 - 31st August, 2025 which led to their bid failing at the mandatory stage.
37. The 1st and 2nd IP’s further deponed that the Applicant’s request for review was filed outside the 14 days of statutory timelines stipulated under section 167 (1) of the Public Procurement and Asset Disposal Act Cap. 412 as read with Regulation 203 (2 (C) (iii) of Regulations 2020 and thus divested the Board of its jurisdiction to hear and determine the request for Review.
38. Further, the 1st and 2nd IPs state that the contract dated 1st day of September 2024 was signed after the lapse of the standstill period provided under section 135 (3) of the Act is valid and accordingly, the Respondent is divested of jurisdiction to entertain the Request for Review by dint of section 167 (4) (C) and sections 173 of the Act and did not violate Articles 10, 47, 159 (d) and 272 (1) of the Constitution of Kenya and the principles articulated under Section 3 of the Act.
39. The 1st and 2nd IP further deponed that the Respondent interpreted the provisions of sections 87 and 135 (3) of the Act judiciously, including the provisions of section 2(3) of the Kenya Information and Communications Act as read with Regulation 3 of the Kenya Information and Communication (Postal and Courier) Regulations.
40. It is the 1st and 2nd IP’s submission that the allegations by the Applicant that their letter was deliberately posted late by the them was made in bad faith and they clearly demonstrated that the way bill receipt that it received from Postal Corporation of Kenya was duly stamped on 13th August, 2024 and it was even noted on the face of it that it was received and accepted on 13th August, 2024 and they cite the case of In the African Merchant Assurance Co. Ltd (Amaco) v Public Procurement Administrative Review Board; Madison General Insurance Kenya Ltd & 2 others (Interested Parties) [2020] eKLR where the court held that the 14 days’ standstill period for purposes of communication of the notification of awards in procurement processes starts to run from the time of sending the notification and not from the time of receipt of the notification.
41. They also submit that upon the lapse of the standstill period the 1st and 2nd Interested Party entered into a valid contract with the 3rd Interested Party on 1st September, 2024.
42. The 1st and 2nd IPs further submit that the Application is unmerited for Judicial Review as it has failed to demonstrate how the Respondent acted illegally and rely on the case of Republic v Muithali & another; Kaida (Interested Party) (Environment and Land Judicial Review Case 29 of 2022) [2024] KEELC 43 (KLR) (15 January 2024) (Ruling) the Honourable court cites the case of Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR where the Court of Appeal held:
“that an order of certiorari can only quash a decision already made and an order of certiorari will issue if the decision is without jurisdiction or in excess of jurisdiction or where the rules of natural justice are not adhered to or any other reasonable cause. It is trite law that the remedy of Judicial Review is not concerned with the merits of the case but the decision-making process. In order for an applicant to succeed in an application for Judicial Review, he must satisfy the court that a public officer has acted un procedurally, that his decision was unreasonable and that the impugned decision was illegal.”
43. The 1st and 2nd IP’s also rely on the case of Municipal Council of Mombasa Vs Republic & Umoja Consultants Ltd (2002) eKLR, cited in Republic v Muithali & another; Kaida (Interested Party) (Environment and Land Judicial Review Case 29 of 2022) [2024] KEELC 43 (KLR) (15 January 2024) (Ruling) (Supra) the Court of Appeal held that: -
“Judicial review is concerned with the decision making process, not with the merits of the decision itself: the Court would concern itself with such issues as to whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters…The court should not act as a Court of Appeal over the decider which would involve going into the merits of the decision itself-such as whether there was or there was not sufficient evidence to support the decision.’’
44. The 1st and 2nd IPs prays that the Application be dismissed with costs.
The 3rd Interested Party’s case;
45. In opposition to the Applicants’ Application, the 3rd Interested Party (hereinafter referred to as 3rd IP’s) filed grounds of opposition dated 7th November, 2024 stating the following grounds: -
a. The Applicant filed its review application with the respondent out of the statutory time limits set out in Section 167 (1) of the Public Procurement and Asset Disposal Act (the Act) and the respondent decision in which it upheld the 3rd interested party’s preliminary objection is correct in law and unimpeachable.
b. The jurisdiction of the respondent was in any event ousted in view of Sections 167 (4) (c) and 135 of the Public Procurement and Asset Disposal Act, 2015 given that the 1st and 3rd interested parties had lawfully executed a valid and enforceable contract whose performance had commenced by the time the applicant lodged its review with the respondent.
c. The application is essentially an appeal against the decision of the respondent which is not the province of judicial review.
d. Other reasons to be set out in the replying affidavit sworn on behalf of the 3rd interested party sworn on 7th November 2024.
46. The third IP also filed Replying Affidavit dated 7th November, 2024 sworn by Linda Njenga and written submissions dated 8th October, 2024.
47. The third IP deponed that it participated in a competitive tender for provision of general insurance services (hereinafter referred to as the tender) where the 2nd interested party was the procuring entity. The 3rd IP emerged as the successful bidder and received a notification of the award dated 12th August 2024 for the tender which it accepted and been performing the contract since 1st September 2024.
48. The 3rd IP further deponed that it learnt from the 2nd interested party that the latter sent the notification of award to it and also notified the unsuccessful bidder of the outcome of the tender process on 13th August 2024 by way of registered post and 1st September 2024 which was 4 days after the lapse of the 14 days standstill period, the 2nd and 3rd interested parties executed a valid contract for provision of life assurance services (the contract).
49. Thereafter the Applicant filed a request for review against the tender on 3rd September 2024 which was 21 days after the date of notification and 2 days after the 2nd and 3rd interested parties executed the contract. This prompted the 3rd interested party to lodge the respondent with the preliminary objection dated 17th September 2024 and the respondent upheld the 3rd interested party’s preliminary objection in its decision of 24th September 2024 which position it believes to be correct as
a. The Applicant filed the review outside the 14 days from the date of notification as permitted by the law and
b. The Respondent’s jurisdiction was ousted after the 2nd and 3rd interested parties executed a valid contract.
50. The 3rd IP submits the Applicant filed its review application with the respondent out of the statutory time limits set out in Section 167 (1) of the Public Procurement and Asset Disposal Act (the Act) and the Respondent’s decision in which it upheld the 3rd interested party’s preliminary objection is correct in law and unimpeachable.
51. The 3rd IP further submits that the Respondent correctly ruled that time started running on 14th August 2024 (one day after the notification was received for postage). The last day for filing the review was on 28th August 2024 by dint of Regulation 3 of the Kenya Information and Communication (Postal and Courier Services) Regulations 2010 which provides as follows:
“A postal article shall be considered— (a) to have been delivered to the addressee— (b) to have been received by a postal licensee when it is deposited into a posting box or handed over to an employee or agent of a postal service operator authorized to receive it.”
52. The 3rd IP cites the case of PPARB No. 24 of 2023 - ADCC International East Africa Limited v Accounting Officer National Housing Corporation and Others where it was held as follows-
“This Board takes the view that the benchmark date for computing the limitation period within which the instant Request for Review would be filed is the date when the Applicant became aware of the letter of notification. In the absence of proof that the Procuring Entity contacted the Applicant to collect the notification letter on 20th March, 2023 as alleged, it is reasonable to assume that the Applicant was notified on 31st March, 2023 when the letter was received and stamped at the post office.”
53. It is further the 3rd IPs submission that the jurisdiction of the Respondent is ousted in view of Sections 167 (4) (c) and 135 of the Public Procurement and Asset Disposal Act, 2015 given that the 1st and 3rd interested parties have lawfully executed a valid and enforceable contract whose performance had commenced by the time the applicant lodged its review with the respondent and continues to be performed to date.
54. It argues that the application before this court is an Appeal against the correctness of the decision by the Respondent which is not the province of judicial review. It cites the case of Republic vs Public Procurement Administrative Review Board Ex-parte Giant Forex Bureau De’ Change Limited and 2 Others [2017] eKLR where the court held as follows-
“…The applicant approached this court on grounds of bias, unreasonableness and irrationality. It has however not established that the Review Board was biased or that it acted unreasonably or irrationally. The applicant might have been wrong in its decision and appreciation of the doctrine of subrogation. That misapprehension, or error of law or fact, however, is not an issue within the judicial review purview of this court. This proposition was upheld by the Court of Appeal in the cited KENYA PIPELINE COMPANY LIMITED (supra) case in the following words-
…In conclusion, it is manifest that the application for Judicial Review was not well founded. The 1st Respondent did not establish that the Review Board had acted without jurisdiction or in excess of jurisdiction or in breach of rules of natural justice or that the decision was irrational. The Judicial Review was not confined to the decision-making process but rather with the correctness of the decision on matters of both law and fact. So long as the proceedings of the Review Board were regular and it had jurisdiction to adjudicate upon the matters raised in the Request for Review, it was as much entitled to decide those matters wrongly as it was to decide them rightly.
The High Court erred in essence in treating the judicial review application as an appeal and in granting judicial review orders on the grounds which were outside the scope of Judicial Review jurisdiction.”
55. The 3rd IP prays that application dated 8th October 2024 be dismissed with costs.
Analysis and Determination:
56. From the pleadings, the statutory statement, the responses, the rival submissions by the parties and the authorities’ referred to, this court identifies the following as the issue for determination;
Whether the applicant is entitled to the orders as sought;
57. In the case of Republic V Public Procurement Administrative Review Board & Another Ex Parte Gibb Africa Ltd & Another [2012] eKLR set out the established reach of judicial review in Kenya thus;
“The reach of judicial review is now well established. In the case of Council of Civil Service Unions V Minister for The Civil Service [1984] 3 ALL ER 935Lord Diplock summarized the scope of judicial review thus: -
“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 are subject to control by judicial review.
The first ground I would call "illegality," the second "irrationality" and the third "procedural impropriety.” …
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.
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.”
58. Section 167 (1) of the Public Procurement and Asset Disposal Act, 2015 envisages that an aggrieved party may seek administrative review within 14 days of notification of award or date of occurrence of an alleged breach at any stage of the procurement process.
59. In the case of African Merchant Assurance Co. Ltd (AMACO) v Public Procurement Administrative Review Board; Madison General Insurance Kenya Ltd & 2 others (Interested Parties) [2020] eKLR, where the court held: -
“50. The 2nd Interested Party has not shown that this analysis was in error or unreasonable to warrant this Court’s intervention, given that under section 167(1) of the Act, there are two instances when time will start to run for purposes of filing a request for review with the Respondent. These are the date of notification of the award, or the date of occurrence of the alleged breach at any stage of the procurement process or disposal process. For purposes of filing a request for review, the receipt of the notification is in the regard the trigger in terms of time starting to run.
…
57. Section 135 of the Act provides that it is the giving of notification which is the trigger of time for purposes of entering into contract with a successful bidder, while under section 87 of the Act is clear that it is the procuring entity that is required to give this notification. The Respondent relied on the date of receipt of the notification by the 1st and 3rd Interested Parties as the material act in determining the date when a contract is to be signed. The receipt of a notification by a bidder is however not a factor that is to be considered under section 135 of the Act with respect to when a contract is to be executed by a procuring entity, unlike in the case of filing for Requests for Review. The obvious mischief that was intended to be avoided by this distinction was the intentional delay that may be caused in entering into contracts by unsuccessful bidders.
58. The standstill time under section 135 of the Act therefore starts to run from the time of sending of the notification, and not the receipt of a notification. The Respondent, having applied an erroneous criterion, and having failed to interrogated and make a determination of the material factor as to when time started to run for the standstill time, thereby erroneously assumed jurisdiction to hear and determine the 1st and 3rd Interested Parties Request for Review. It therefore follows that the decision made by the Respondent was unlawful for this reason.”
60. In the case of African Merchant Assurance Co. Ltd (Amaco) v Public Procurement Administrative Review Board; Madison General Insurance Kenya Ltd & 2 others (Interested Parties) [2020] eKLR the court held that the 14 days’ standstill period for purposes of communication of the notification of awards in procurement processes starts to run from the time of sending the notification and not from the time of receipt of the notification.
62. Regulation 3 of the Kenya Information and Communication (Postal and Courier) Regulations provides as follows; “A postal article shall be considered—
a) to have been delivered to the addressee—
i. when it is delivered into a private letter box or bag of the addressee;
ii. when it is left at the house, or office of the addressee as set out thereon, or with the employee, agent or any other person authorized to receive it; or
iii. where the addressee is a guest or is a resident at a hotel, hostel or lodging, when it is left with the proprietor or manager of the hotel, hostel or lodging or with his agent; or
b) to have been received by a postal licensee when it is deposited into a posting box or handed over to an employee or agent of a postal service operator authorized to receive it.”
61. It is the Applicants case that the notification was not delivered into its letter box or bag. The parcel was delivered to the Applicant’s office through EMS courier services and therefore Regulation 3 (a) (ii) applies instead of Regulation 3 (a) (i) as held by the Respondent.
62. The Applicant’s case is that the notification of intention to award dated 12th August 2024 was delivered to the Applicant’s office on 27th August 2024.
63. In the instant case, the issue is not around the question when the Applicant learnt of the breach. The issue is around question of when the notification of award was received.
64. Regulation 3 of the Kenya Information and Communication (Postal and Courier) Regulations provides as follows;
“A postal article shall be considered—
b) to have been received by a postal licensee when it is deposited into a posting box or handed over to an employee or agent of a postal service operator authorized to receive it.”
65. It is this court’s finding that the notification has a postal stamp which is the trigger date and not any other date as alleged by the Applicant.
66. It is this court’s finding that the notification of the award was done on 13th August, 2024 when the award letter was posted to the bid winner and the regrets sent to their counterparts who had lost the bid as set out in Way bill reference no EE110047699KE from postal corporation of Kenya.
67. The 1st and 2nd Interested Party have clearly demonstrated that the way bill receipt that they received from Postal Corporation of Kenya was duly stamped on 13th August, 2024 and it was even noted on the face of it that it was received and accepted on 13th August, 2024.
68. The Respondent in its Decision dated 24th September 2024 observed that the Ex parte Applicant’s copy of the EMS Shipment Waybill No. EE110047699KE revealed that though the date and time of acceptance as handwritten thereon appeared to read 26/8/24, the date of stamp affixed thereon indicted 13.08.24 as the postage date and not on 26th August 2024.
69. The Ex parte Applicant had between 14th August 2024 and 27th August 2024 to seek administrative review before the Respondent. It didn't. The Request for Review No. 86 of 2024 was filed outside the 14 days’ statutory period prescribed under Section 167(1) of the Act.
70. Consequently, it is this court’s finding that the Respondent did not act illegally or irregularly in arriving at the decision that it was divested of jurisdiction to hear and determine Request for Review No. 86 of 2024 and I so hold.
71. This court finds no fault in the Respondents’ decision that would justify the review of the Respondents impugned decision.
The effect of signing a contract;
72. In Public Procurement Administrative Board v Four M Insurance Brokers Limited & 3 others (Civil Appeal E1009 of 2023) [2024] KECA 79 (KLR) (9 February 2024) (Judgment)
“On the second limb of jurisdiction relating to the existence of a signed contract, we note that the learned Judge of the superior Court held as follows on this issue:-“…217.In Republic vs. Public Procurement Administrative Review Board ex-parte Madison General Insurance Kenya Limited; Vice Chancellor Kenyatta University & Another (Interested Parties) (2022) eKLR where Justice Ngaah held as follows:-“it could be that indeed the contract was invalid, but in my humble view, considering the provisions of Section 167(4)(c) once a contract has been signed, the appropriate forum before which the question of validity of a signed contract can be determined is this Honorable Court.It does not necessarily follow that an aggrieved party is left without a remedy merely because a contract is signed. Grievances arising out of a signed contract will certainly be addressed but not before the Public Procurement Administrative Review Board. They will be addressed before the court which only has the jurisdiction to determine such disputes related to the alleged grievances.”218.The Board lacked jurisdiction to hear and determine the application by the 2nd Respondent under Section 167(4) of the Act, to entertain the application given that there was already a signed contract – signed on 2nd October 2023, between the ex-parte Applicant and the 3rd and 4th Respondent.219.Given that the Contract was executed between the Applicant and the 4th Respondent, on 2nd October 2023, the Board lacked jurisdiction to adjudicate over any request for review filed after the execution of a contract pursuant to the provisions of Section 167(4)(c) of the Act and I so hold…”
49.As already observed, the appellant’s jurisdiction emanates from Section 167(1) of the Act. Section 167(4) provides matters that shall not be subject to the jurisdiction of the appellant and, Section 167(4) (c) of the Act specifically, ousts the appellant’s jurisdiction where a contract is signed in accordance with Section 135 of the Act. Section 135 in this regard sets out various requirements to be met in the creation and signing of procurement contracts, and an ordinary and purposive interpretation of section 167(4) is that the appellant is required to inquire into whether a procurement contract has been signed in accordance with section 135 of the Act when deciding on whether it has jurisdiction to hear and determine a request for review filed before it in cases where a contract has already been signed, and its jurisdiction is only ousted once this preliminary inquiry establishes that the provisions on creation of a procurement contract under Section 135 of the Act have been met, or where it makes an error as to the existence of this statutory precondition.
50.Indeed in the case of Ederman Property Limited v Lordship Africa Limited & 2 others [2019] eKLR, where a similar question arose as to whether the Appellant had properly declined jurisdiction in a case where a contract had been signed, this Court stated thus: -“…The learned Judge who heard the motion identified as an important question the determination of whether the 2nd respondent committed an error of law when it declined jurisdiction to entertain the application for review because a contract had already been entered into and the application was filed outside fourteen (14) days.……..The review body is not allowed to consider a review where a contract has been signed in accordance with Section 135 of the Act. The learned Judge considered the manner in which the 2nd respondent on receiving the request for review had entertained it where it found that it had no jurisdiction to entertain the request for review in the face of a contract that had been signed between the appellant and the 3rd respondent. The Judge reviewed a number of decisions on the issue of jurisdiction which the 2nd respondent had found it lacked. The Judge distinguished the provisions of Section 167(4) (c) of the Act and Section 135 of the Act. Section 135 states that a contract shall be confirmed through the signature of a contract document incorporating all agreements between the parties and such contract shall be signed by the accounting officer or an officer authorized in writing by the accounting officer of the procuring entity of the successful tenderer. Section 135(3) provides that………..Having reviewed the provisions of the said Sections 135 and 167 of the Act, the Judge found at paragraph 73 of the judgment that:“In this case, the review board makes no reference to whether or not the contract allegedly signed was in accordance with Section 135 of the Act. From the above cited case law, it is clear that the review board should have first determined whether the contract in question was signed in accordance with Section 135 of the Act. This is so because the mere fact that a contract has been signed does not necessarily deprive the respondent of the jurisdiction to entertain the request for review. In other words, before the review board makes a determination that it has no jurisdiction to entertain the request by virtue of sect 167 (4) (c) of the Act, it has the duty to investigate whether the contract in question was signed in accordance with Section 135 of the Act and the failure to do so in my view would amount to improper deprivation of jurisdiction; in my further view improper deprivation of jurisdiction is as bad as action without or in excess of jurisdiction”….We fully agree with the conclusion reached by the Judge in this respect. It was the duty of the 2nd respondent to satisfy itself that the 3rd respondent had followed the law on procurement and rules of natural justice in awarding the tender to the appellant and finding that the 1st respondent’s tender bid was unsuccessful…”
51.We adopt and agree with this reasoning. Put another way, section 164(7) implies a jurisdiction on the part of the appellant to entertain an application as to whether a contract is signed in accordance with Article 135, and is meant to address the obvious mischief of the signing of illegal procurement contracts so as to oust the jurisdiction of the appellant.”
73. In the instant suit, it is not in dispute that the 1st and 2nd Interested Party entered into a contract with the 3rd Interested Party on 1st September, 2024.
74. From the impugned decision this court has satisfied itself that the Respondent addressed its mind to the issue of the contract. From the decision it is clear that the Respondent considered whether or not the contract allegedly signed was in accordance with Section 135 of the Act and determined that the contract in question was signed in accordance with Section 135 of the Act.
75. The earliest that a contract could be lawfully signed in the subject tender was on or about the 28th August 2024 after the lapse of the 14 days’ standstill period and as such, the contract dated 1st September 2024 was valid having been signed 3 days after the lapse of the standstill period provided under Section 135(3) of the Act as a result of which The Respondent was divested of jurisdiction to entertain the Request for Review by dint of Section 167 (4)(c) of the Act and I so hold.
Disposition;
76. The Ex Parte Applicant has not demonstrated any elements of illegality, irrationality, procedural impropriety and/or unfairness in the manner in which the Respondent arrived at its Decision in Request for Review No. 86 of 2024.
Order;
77. The Application is dismissed with costs.