'1. Through the Originating Motion Application dated 31st July 2025,the Applicant seeks the following orders:
a. spent
b. spent.
c. That upon prosecution of the substantive Originating Motion, this Honourable Court be pleased to set aside the entire decision of the Public Procurement Administrative Review Board (PPARB), the 1st Respondent herein, delivered in PPARB Request for Review Application No. 78 of 2025 on June 16, 2025, on the grounds of conflict of interest, bias, illegality and irrationality.
d. That this Honourable Court be pleased to issue an order of CERTIORARI to quash the Public Procurement Administrative Review Board Decision dated 25th July 2025 dismissing the Applicant’s request for review and SET ASIDE the entire decision of the Accounting Officer, Kenya National Examination Council, the 2nd Respondent herein, in relation to Tender No: KNEC/RFP/20242025/01- Provision of End-to-End Integrated Logistics System and Related Services During Administration of Examinations and Assessments, and delivered vide Notification of Award letters dated June 20, 2025.
e. That this Honourable Court be pleased to PROHIBIT the Accounting Officer, Kenya National Examination Council, the 2nd Respondent herein, from progressing and finalizing the proceedings in relation to Tender No Tender No: KNEC/RFP/2024-2025/01- Provision of End-to-End Integrated Logistics System and Related Services During Administration of Examinations and Assessments.
f. That this Honourable Court be pleased to DIRECT the Accounting Officer, Kenya National Examination Council, the 2ndRespondent herein, to terminate the tender process in relation to Tender No.: Tender No: KNEC/RFP/2024-2025/01- Provision of End-to-End Integrated Logistics System and Related Services During Administration of Examinations and Assessments, and commence a fresh tender process;
g. Costs of the Application.
h. Any other order this court may deem fit
The Applicants’ Case;
2. The Applicants argue that on 14th March 2025, the Respondents invited expression of interest under tender number KNEC/EOI/2024-2025/01 INVITATION FOR EXPRESSION OF INTEREST (EOI) ON PROVISION OF PROVISION OF END-TO-END INTEGRATED LOGISTICS SYSTEM AND RELATED SERVICES DURING ADMINISTRATION OF EXAMINATIONS AND ASSESSMENTS.
3. The Applicants collaborated through a Joint Venture (JV) consortium and submitted their expression of interest in bidding for the aforementioned tender.
4. The Applicants argue that they submitted their tender proposal before the deadline which was 17th June 2025 at 10:00am.
5. The Applicants argue that they were verbally informed by the procuring entity upon inquiry that the tender would be opened at 4pm and that they were the only bidders who submitted their bid before the deadline of 10.00 am.
6. It is the Applicants case that the Interested Party’s bid was submitted after the deadline of 10:00am, 17th June 2025 and that there was no addendum issued for the foregoing change in tender submission and tender opening time in accordance with the Request for Proposal document and thus the variation was illegal.
7. On 19th June 2025, the Respondents informed the Applicants that its bid was non-responsive at the technical stage as we had attained a technical score of 45% which was below the minimum score of 75% required for the bid to proceed to the financial evaluation.
8. They argue that the 1st Respondent, herein unreasonably found that the Applicants’ disqualification at the Technical Evaluation Stage was lawful and justified.
9. On 20th June 2025, the 3rd Respondent informed the Applicant of the Intention to award the Contract of Tender No KNEC/RFP/2024-2025/01 to the Interested Party.
10. Being dissatisfied with the turn of events, the Applicants lodged a request for review dated 4th July 2025 with the 1st Respondent. Judgment was delivered on 25th July 2025.
11. The Applicants believe that the 1st Respondent unfairly and illegally determined that there were no irregularities in the extension of tender submission time and tender opening time and that the submissions of the interested party’s bid was not time barred.
12. The Applicants are also aggrieved by the fact that the 1st Respondent further noted that the claim under the ground of irregularity was also time barred as per section 167 of the Public Procurement and Assets Disposal Act and in any event an addendum was issued varying the tender submission and tender opening time from 17th June 2025 at 10:00 am to 4:00pm on the same day.
13. It is their case that The 1st Respondent disregarded the facts within its knowledge and perpetuated the conflict of interest and unfair advantage gained by the advocate for the 2nd and 3rdRespondents, one Mr. Justus Omollo due to the following reasons:
i. That the Applicants initially instructed Mr. Justus Omollo from the firm of Sigano & Omollo LLP to act for them in this matter before the Review Board and they had strict instructions to file the Request for Review on 1st July 2025.
ii. That without the Applicants knowledge and authorization, the firm of Sigano & Omollo LLP delegated the suit to another firm, the firm of Wanza Kivindu & Company Advocates.
iii. That the Request for Review was then filed on 1st July 2025 through the firm of Wanza Kivindu & Company Advocates and payment made.
iv. That the matter was later withdrawn without the Applicant’s knowledge as it only learnt of the withdrawal on 2nd July 2025 when Mr. Justus Omollo purported to refund the legal fee.
v. That upon learning of the withdrawal of the request, they instructed the firm of SKM Advocates LLP to enter appearance and file the Request for Review on behalf of the Applicants, which they did.
vi. That upon service to the 2nd and 3rd Respondents, they were shocked to see that Mr. Justus Omollo was their advocate on record and they instructed their advocates to challenge the representation of the 2nd and 3rd Respondents by Mr. Omollo due to the professional conflict of interest.
vii. The said firm of SKM Advocates LLP did not raise these issues before the board as directed.
viii. That it is therefore reasonable to deduce that Mr. Omollo colluded with the procuring entity, took the Applicants instructions, delegated the assignment only for him to withdraw request for review in order to defeat the statutory timelines and favour the 2nd and 3rd Respondents.
ix. That the 1st Respondent was all along aware of the earlier request filed and withdrawn and the circumstances under which it was done.
x. That the firm of Sigano & Omollo LLP colluded with the procuring entity to tactfully orchestrate a scheme to defeat the Applicant’s Request for Review claim and was aided by the Applicants’ advocates SKM Advocates LLP by not raising an objection to the representation at the Review Board.
14. It is their case that as a result of the foregoing, the Review Board’s decision and the procurement proceedings conducted are fatally flawed, unlawful and irregular because the Respondents have breached their obligations under the Public Procurement and Asset Disposal Act and the Constitution as demonstrated hereinabove.
15. The 1st Respondent disregarded the information and agreed to the variation of the criteria which altered the evaluation consideration by introducing additional requirements which doesn’t sit well with the Applicants.
16. It is their case that the Review Board’s decision dated 25th July 2025, is unconstitutional and illegal as it failed to establish that the 2nd and 3rd Respondents fundamentally breached the provisions of Article 227 of the Constitution of Kenya, 2010 by conducting procurement under Tender Reference No. KNEC/RFP/2024-2025/01 in a manner that was neither fair, equitable, transparent, competitive, nor cost-effective and the opaque evaluation process adopted fundamentally undermined the constitutional safeguards meant to ensure accountability, transparency and public trust in procurement processes.
17. They argue that the Respondents contravened section 80 of the Public Procurement and Asset Disposal Act and Regulations 74, 77, 77, 126(1),(2),(3),(4)&(6) and 127 of the Public Procurement and Asset Disposal Regulations, 2020 by applying an evaluation criterion that was not specified in the Tender Documents, thereby rendering the evaluation process subjective, discriminatory and biased against the Applicants.
18. They argue that the Respondents’ decision further breached the Applicant’s legitimate expectations that the procurement process would be fair, transparent and competitive as per the request for proposal submitted to the shortlisted consultants.
The Applicants Submissions;
19. The Applicants submit that the Review Board erred by holding that the challenge against extension of tender submission and tender opening time was time barred.
20. They further submit that they had lodged a valid application for review within the statutory timelines with the Review Board.
21. The Applicants submits that the withdrawal of the application for review without the consent or knowledge of the Applicants herein can only be viewed as an elaborate scheme by the advocate for the 2nd and 3rd Respondents in collusion with the Review Board to defeat the Applicants’ claim on the basis of statutory timelines.
22. They submit that Mr. Justus Omollo from the firm of Sigano & Omollo LLP was instructed by the Applicants to act for them in filing of the application for review.
23. The said advocate who received instructions and legal fees for the matter and was duly furnished with all information and documents in relation to the matter proceeded to delegate the suit to another firm, the firm of Wanza Kivindu & Company Advocates.
24. The application for review was duly filed, and withdrawn thereafter without the knowledge and consent of the Applicants and these facts have not been challenged.
25. Mr. Omollo thereafter refunded the legal fees to the Applicants and thereafter proceeded to receive instructions from the 2nd and 3rd Respondents in a clear case of conflict of interest.
26. The Review Board aware of all these facts proceeded to determine that the claim in relation to the tender submission and opening was time barred.
27. This they submit is a well-orchestrated scheme by the Respondents to deprive the Applicants the right to a fair hearing.
28. The advocate for the 2nd and 3rd Respondents unduly used insider information in mounting the defense by the 2ndand 3rd Respondents at the review Board level and this unduly prejudiced the Applicants herein.
29. Reliance is placed in the case of Delphis Bank Ltd v Channan Singh Chatthe & 6 Others [2005] eKLR where the Court of Appeal held that:
“I have no doubt in my mind that the Respondents will consciously or unconsciously or even inadvertently use that confidential information acquired from the appellants under the retainer during preparation of the loan agreement and the security documents as well as knowledge of subsequent events against the appellants in the main suit. The result will be that the appellants will not only be confronted with their own confidential information but will suffer great injustice and prejudice during the trial of the main suit”.
30. The Applicant prays that the finding by the Review Board, be quashed by this honourable court since the Review Board’s decision and the procurement proceedings conducted are fatally flawed, unlawful and irregular.
31. On another front, they submit that the alteration of the tender submission time from 10.00 am to 4.00pm was irregular, unprocedural and unlawful as the Procuring Entity did not adhere to the provisions of the Public Procurement and Asset Disposal Act as well as the Instruction To Tenderers (hereinafter “itts”) in the RFP.
32. The Respondents have failed to prove by way of evidence how the extension of the tender submission and opening period was done and communicated to the bidders as there was no addendum served on the bidders and this in violates of paragraph ITT 9 of the RFP, which requires the Procuring Entity to communicate any changes or amendments of the Tendering Document through an addendum in writing to all bidders and further publish the addendum on the Procuring Entity’s webpage.
33. They further submit that Review Board erred in upholding the 2nd and 3rdRespondents arguments that the tender submission and opening time was lawfully varied.
34. To buttress this argument they submit that the email excerpt produced by the Respondents as annexure KNEC- 01 is clearly headed “Response on areas of clarification – Tender Number KNEC/RFP/2024-2025-01” which has nothing to do with the alleged extension of tender submission and opening period.
35. They further note that the alleged email has only four properly labelled attachments and none of the subject of the attachments relates to the alleged addendum on extension of tender submission and opening time if the subject of those attachments is anything to go by.
36. They submit that the 2nd and 3rd Respondents have failed to demonstrate how and when the addendum was: firstly, communicated to the JV; and secondly, published on the Procuring Entity’s website in line with ITT 9.2 of the RFP and this violates section 75(3) and 78(3) of the Public Procurement and Assets Disposal Act, 2015.
37. In the absence of the said evidence and noting that both the Respondents and the Interested party did not dispute that the tender proposal of the Interested Party was submitted after 10.00am, They submit that the extension of deadline for submission of the tender proposal was irregular and unlawful and thus the tender proposal by the Interested Party was non-responsive for reason of being submitted beyond the legal submission deadline set in the RFP.
38. On the issue of the criteria they submit that the Procuring Entity did not apply the technical evaluation criteria set out in the RFP in evaluating the JV’s proposal for the following reasons;
39. In its notification of results for the Technical evaluation to the JV through a letter dated 19th June 2025, the Procuring Entity noted that the JV had not provided recommendation letters from clients addressed to CEO KNEC for Contract/LPOS evidence attached; methodology and work plan for the Fintech Edge Co Limited as the second partner in the JV; and qualifications and experience of the key technical staff for Fintech Edge Co Limited, the second partner in the JV.
40. They submit that the JV did provide sufficient experience and qualifications in their individual capacities separate from the qualifications of the independent sub-contractors. The said experience was demonstrated in the recommendation letters from clients and the contracts between the JV partners and clients.
41. The said experience of the JV is evident in page 120 to 172 of the Applicants tender document and the Procuring Entity chose to disregard the experience and focus only on Benir Global Limited’s experience which was provided in page 197 to 239 of the Applicants bundle.
42. They submit that by disregarding the contracts and recommendation letters provided by the JV, the Procuring Entity veered off the technical evaluation criteria in the RFP in violation of section 80(2) of the Public Procurement and Assets Disposal Act, 2015.
43. On the second issue of methodology and work plan for the Fintech Edge Co. Limited as the second partner in the JV, we note that there was no requirement in the RFP for the individual partners in the JV to provide separate methodology and work plan. This would have defeated the purpose of the JV.
44. The JV was compliant as it duly submitted a joint methodology and work plan since the contract would have been executed by the JV and not the individual partners.
45. Contrary to the 2nd and 3rdRespondents assertion, the said methodology does not indicate to have been provided by Benir Global Limited and only indicates that Benir Global Limited would be a logistics system partner in execution of the tasks in the contract as per the methodology.
46. They submit that as per the JV tender documents submitted, Benir Global Limited is a subcontractor by dint of the agreement dated 10th March 2025 annexed on page 39 of the Applicant’s bundle whose role is to provide deployment of digital logistics tracking and management system as well as co-ordination of physical logistics including collection, transportation, delivery, and retrieval of examination materials.
47. They submit further that the methodology provided by the JV was sufficient in the circumstances as it comprehensively covered all the tasks in the contract and by requiring Fintech Edge Co. Limited to provide a separate methodology is unreasonable, contrary to the technical evaluation criteria and defeats the purpose of the JV.
48. On the third issue of the submission of qualifications and experience of the key technical staff for Fintech Edge Co Limited, the Applicants submit that there was no such requirement in the RFP.
49. The JV provided a very comprehensive list of key technical staff together with their qualifications (academic and professional) and experience on page 432 to 527 of the Applicants bundle filed with the Review Board.
50. They submit that it was not a question of apportioning the key technical staff between the partners in the JV, but the requirement was to provide sufficient competent technical staff which the JV did. The key technical staff could not be split between the two partners in of the JV as each of the partner in the JV had a different role to play in the contract.
51. The role of each of the JV partners is outlined in clause 4 of the agreement (page 129 of the Applicant’s bundle filed with the Review Board) which provides that; “Fintech Edge Company Limited guarantees that it shall obtain and be responsible for project management, preparation and submission of tenders and financial advisory services whereas Mitchell Cotts Freight Kenya Limited guarantees that it shall be responsible for all technical design, technical expertise and ensuring compliance with relevant regulations and quality standards.”
52. They submits that it would hence be expected that the key staff in the execution of the contract would be drawn from the Mitchell Cotts Freight Kenya Limited and not Fintech Edge Company Limited due to the technical role to be played by Mitchell Cotts Freight Kenya Limited in the JV.
53. In relation to the application of ITT 41.2 of the RFP as highlighted by Review Board in its ruling, the limitation only relates to the qualifications of the JV. ITT 41.2 provides that:
“The determination shall be based upon an examination of the documentary evidence of the Tenderer''s qualifications submitted by the Tenderer, pursuant to ITT 18. The determination shall not take into consideration the qualifications of other firms such as the Tenderer''s subsidiaries, parent entities, affiliates, subcontractors or any other firm(s) different from the Tenderer that submitted the Tender.”
54. The Applicants submit that the limitation is only applicable when considering the qualifications of the Tenderer. In the case of the JV, the JV partners did provide sufficient qualifications in the form of contracts, recommendation letters and qualifications of key technical staff besides the qualifications of Benir Global Limited, the subcontractor.
55. Therefore, the Procuring Entity they submit erred in disregarding the qualifications of Mitchell Cotts Freight Kenya Limited and Fintech Edge Company Limited on page 240 to 293 of the Applicants bundle filed with the Review Board.
56. The Procuring Entity disregarded the Technical Evaluation Criteria outlined in page 42 of the Applicants bundle filed with the Review Board as well as the provisions of Section 80(2) of the Public Procurement and Assets Disposal Act, 2015 which provides that:
“The evaluation and comparison shall be done using the procedures and criteria set out in the tender documents and, in the tender for professional services, shall have regard to the provisions of this Act and statutory instruments issued by the relevant professional associations regarding regulation of fees chargeable for services rendered”
57. Reliance is also placed in the Court of Appeal in Republic V Public Procurement & Another Ex-ParteHyosung Ebara Company Limited [2011] eKLR where the court held that:
“No other criteria apart from the ones set out in the tender documents should have been relied upon in carrying out the evaluation. The spirit of confidentiality as stated under Section 44 of the Act and strict adherence to the evaluation criteria of tenders in the tendering process as required in Section 66 of the Act must be guarded jealously if the objectives of the Public Procurement and Disposal Act are to be realized.”
58. They submit that it is clear that deviating from the set evaluation criteria in the RFP and disregarding the information provided by the JV while imposing additional and unreasonable requirements on the JV’s proposal is thus incurably flawed and has tainted the entire procurement process by the Procuring Entity.
59. Reliance is placed on the case of Republic v Office of the Director of Public Prosecution & 2 others; Siwa (Ex parte); Mungai (Interested Party) (Miscellaneous Judicial Review E002 of 2025) [2025] KEHC 11884 (KLR) where the court relied on the test outlined in Pastoli v Kabale District Local Government Council & others (2008) 2 EA 303 where the court held as follows:
“In order to succeed in an application for judicial review, the Applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety...Illegality is when the decision-making authority commits an error of law in the process of taking or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality. It is, for example, illegality, where a Chief Administrative Officer of a District interdicts a public servant on the direction of the District Executive Committee, when the powers to do so are vested by law in the District Service Commission...Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards...Procedural Impropriety is when there is a failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision.”
60. In the instant suit, the Applicants submit that the decision of the Review Board is unfair, unreasonable, irrational and illegal for the following reasons:
a) The Review Board misdirected itself and disregarded the evidence in the form of the tender documents submitted to the 2nd and 3rd Respondent which showed that the Applicants met the technical evaluation criteria and that the Procuring Entity erred by disregarding the documents and explanations provided, which position was rubber stamped by the Review Board. Thus, the decision of the Review Board is so unreasonable and irrational as no reasonable authority, addressing itself to the facts and the law before it in the form of evidence adduced, would have made such a decision.
b) The Review Board disregarded the tender evaluation criteria provided in the request for proposal and proceeded to rubberstamp the Procuring Entity’s variation of the requirements set out in the technical evaluation criteria without any justification making their decision unreasonable and illegal as reasonable authority, addressing itself to the facts and the law before it in the form of evidence adduced, would have made such a decision.
c) The Review Board erred in finding that the extension of tender submission and opening time was lawful while there was no valid addendum issued by the procuring entity makes its decision unreasonable and irrational as no reasonable authority, addressing itself to the facts and the law before it in the form of evidence adduced, would have made such a decision.
d) The Review Board erred in finding that the claim by the Applicants that the extension of the tender submission and opening time was time barred while it was well aware that the Applicants had filed a valid claim within the prescribed statutory timelines and the claim withdraw by the advocates of the 2nd and 3rd Respondents. This clearly demonstrates procedural Impropriety as there is a failure to act fairly on the part of the decision-making authority in the process of taking a decision.
61. It submits that the Preliminary Objection by the 2nd and 3rd Respondent lacks merit.
62. They rely in the case of Mukisa Biscuits Manufacturing Ltd v West End Distributors (1969) EA 696 is arguably the locus classicus of what merits as a preliminary objection, where the Honourable Court observed thus;
“… a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit.”
63. The court in the foregoing case proceeded to expound that:
“A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”
64. It is submitted that the Preliminary Objection raised by the 2ndand 3rd Respondents is not based on pure points of law and the court cannot make a determination without delving into the facts of this case.
The 1st Respondent’s Case;
65. The 1st Respondent argues that on 4th July 2025, Mitchell Cotts Freight Kenya Ltd & Fintech Edge Company Ltd, the Applicant herein, filed Request for Review Application No. 78 of 2025 before the Respondent seeking the following orders:
a) A declaration be and is hereby issued that the Accounting Officer and the Procuring Entity have breached the provisions of Articles 10, 27, 201, 227 and 232 of the Constitution of Kenya and Sections 3, 70, 77, 78, 79, 80 and 86 of the Public Procurement and Asset Disposal Act.
b) This Board do issue an Order that the public procurement proceedings commenced by the Respondents through Tender No. KNEC/RFP/2024- 2025/01 FOR PROVISION OF END-TO-END INTERGRATED LOGISTICS SYSTEM AND RELATED SERVICES DURING ADMINISTRATION OF EXAMINATIONS AND ASSESSMENTS be and are hereby annulled in entirety and set aside.
c) This Board do issue an Order that the Respondents’ decision and Notification of Award to the Interested Party in respect to the award of the Tender No. KNEC/RFP/2024-2025/01 FOR PROVISION OF END- TOEND INTERGRATED LOGISTICS SYSTEM AND RELATED SERVICES DURING ADMINISTRATION OF EXAMINATIONS AND ASSESSMENTS be and is hereby annulled and set aside.
d) This Board do issue an Order that the decision and notification of unsuccessful bid dated 19th June 2025 and 20th June 2025 addressed to the Applicant in the Tender No. KNEC/RFP/2024- 2025/01 FOR PROVISION OF END-TO-END INTERGRATED LOGISTICS SYSTEM AND RELATED SERVICES DURING ADMINISTRATION OF EXAMINATIONS AND ASSESSMENTS be and is hereby annulled and set aside.
e) This Board do review the Applicants’ Technical Evaluation on the Tender No. KNEC/RFP/2024- 2025/01 FOR PROVISION OF END-TO-END INTERGRATED LOGISTICS SYSTEM AND RELATED SERVICES DURING ADMINISTRATION OF EXAMINATIONS AND ASSESSMENTS and award appropriate scores and admit the Applicants bid to the financial stage of evaluation.
f) In the alternative to prayer (e) above, this Board do issue an Order directing the Procuring Entity and Accounting Officer to reevaluate the Tender No. KNEC/RFP/2024-2025/01 FOR PROVISION OF END-TO- END INTERGRATED LOGISTICS SYSTEM AND RELATED SERVICES DURING ADMINISTRATION OF EXAMINATIONS AND ASSESSMENTS at the technical stage taking into consideration the findings and orders of the Public Procurement Administrative Review Board herein.
g) In the alternative to prayers (e) and (f) above this Board do direct the Accounting Officer of Kenya National Examination Council to commence the procurement proceedings afresh taking into consideration the findings and orders of the Public Procurement Administrative Review Board herein within such period to be stipulated.
h) This Board do grant the Applicants damages for loss of business amounting to a sum of KES 80,737783.
i) The Respondents be ordered to pay costs and incidentals to these proceedings.
j) Any other relief that the Board may deem fit and just to grant.
66. On 25th July 2025, the Respondent, made the following orders:
a) The Request for Review dated 4th July 2025 is hereby dismissed.
b) The 1st Respondent, Accounting Officer of the Kenya National Examination Council, be and is hereby directed to proceed with and oversee the tender proceedings for Tender No. KNEC/RFP/2024- 2025/01 – Provision of End- to-End Integrated Logistics System and Related Services During Administration of Examinations and Assessments to their logical and lawful conclusion; and
c) Each party shall bear its own costs of the proceedings.
67. It is its case that in determining Request for Review No. 78 of 2025, the 1st Respondent began by addressing several preliminary issues, including the timeliness of the Applicant’s written submissions.
68. The Board found that while the submissions were filed outside the prescribed timeline, they were noneth
[...truncated]
a. spent
b. spent.
c. That upon prosecution of the substantive Originating Motion, this Honourable Court be pleased to set aside the entire decision of the Public Procurement Administrative Review Board (PPARB), the 1st Respondent herein, delivered in PPARB Request for Review Application No. 78 of 2025 on June 16, 2025, on the grounds of conflict of interest, bias, illegality and irrationality.
d. That this Honourable Court be pleased to issue an order of CERTIORARI to quash the Public Procurement Administrative Review Board Decision dated 25th July 2025 dismissing the Applicant’s request for review and SET ASIDE the entire decision of the Accounting Officer, Kenya National Examination Council, the 2nd Respondent herein, in relation to Tender No: KNEC/RFP/20242025/01- Provision of End-to-End Integrated Logistics System and Related Services During Administration of Examinations and Assessments, and delivered vide Notification of Award letters dated June 20, 2025.
e. That this Honourable Court be pleased to PROHIBIT the Accounting Officer, Kenya National Examination Council, the 2nd Respondent herein, from progressing and finalizing the proceedings in relation to Tender No Tender No: KNEC/RFP/2024-2025/01- Provision of End-to-End Integrated Logistics System and Related Services During Administration of Examinations and Assessments.
f. That this Honourable Court be pleased to DIRECT the Accounting Officer, Kenya National Examination Council, the 2ndRespondent herein, to terminate the tender process in relation to Tender No.: Tender No: KNEC/RFP/2024-2025/01- Provision of End-to-End Integrated Logistics System and Related Services During Administration of Examinations and Assessments, and commence a fresh tender process;
g. Costs of the Application.
h. Any other order this court may deem fit
The Applicants’ Case;
2. The Applicants argue that on 14th March 2025, the Respondents invited expression of interest under tender number KNEC/EOI/2024-2025/01 INVITATION FOR EXPRESSION OF INTEREST (EOI) ON PROVISION OF PROVISION OF END-TO-END INTEGRATED LOGISTICS SYSTEM AND RELATED SERVICES DURING ADMINISTRATION OF EXAMINATIONS AND ASSESSMENTS.
3. The Applicants collaborated through a Joint Venture (JV) consortium and submitted their expression of interest in bidding for the aforementioned tender.
4. The Applicants argue that they submitted their tender proposal before the deadline which was 17th June 2025 at 10:00am.
5. The Applicants argue that they were verbally informed by the procuring entity upon inquiry that the tender would be opened at 4pm and that they were the only bidders who submitted their bid before the deadline of 10.00 am.
6. It is the Applicants case that the Interested Party’s bid was submitted after the deadline of 10:00am, 17th June 2025 and that there was no addendum issued for the foregoing change in tender submission and tender opening time in accordance with the Request for Proposal document and thus the variation was illegal.
7. On 19th June 2025, the Respondents informed the Applicants that its bid was non-responsive at the technical stage as we had attained a technical score of 45% which was below the minimum score of 75% required for the bid to proceed to the financial evaluation.
8. They argue that the 1st Respondent, herein unreasonably found that the Applicants’ disqualification at the Technical Evaluation Stage was lawful and justified.
9. On 20th June 2025, the 3rd Respondent informed the Applicant of the Intention to award the Contract of Tender No KNEC/RFP/2024-2025/01 to the Interested Party.
10. Being dissatisfied with the turn of events, the Applicants lodged a request for review dated 4th July 2025 with the 1st Respondent. Judgment was delivered on 25th July 2025.
11. The Applicants believe that the 1st Respondent unfairly and illegally determined that there were no irregularities in the extension of tender submission time and tender opening time and that the submissions of the interested party’s bid was not time barred.
12. The Applicants are also aggrieved by the fact that the 1st Respondent further noted that the claim under the ground of irregularity was also time barred as per section 167 of the Public Procurement and Assets Disposal Act and in any event an addendum was issued varying the tender submission and tender opening time from 17th June 2025 at 10:00 am to 4:00pm on the same day.
13. It is their case that The 1st Respondent disregarded the facts within its knowledge and perpetuated the conflict of interest and unfair advantage gained by the advocate for the 2nd and 3rdRespondents, one Mr. Justus Omollo due to the following reasons:
i. That the Applicants initially instructed Mr. Justus Omollo from the firm of Sigano & Omollo LLP to act for them in this matter before the Review Board and they had strict instructions to file the Request for Review on 1st July 2025.
ii. That without the Applicants knowledge and authorization, the firm of Sigano & Omollo LLP delegated the suit to another firm, the firm of Wanza Kivindu & Company Advocates.
iii. That the Request for Review was then filed on 1st July 2025 through the firm of Wanza Kivindu & Company Advocates and payment made.
iv. That the matter was later withdrawn without the Applicant’s knowledge as it only learnt of the withdrawal on 2nd July 2025 when Mr. Justus Omollo purported to refund the legal fee.
v. That upon learning of the withdrawal of the request, they instructed the firm of SKM Advocates LLP to enter appearance and file the Request for Review on behalf of the Applicants, which they did.
vi. That upon service to the 2nd and 3rd Respondents, they were shocked to see that Mr. Justus Omollo was their advocate on record and they instructed their advocates to challenge the representation of the 2nd and 3rd Respondents by Mr. Omollo due to the professional conflict of interest.
vii. The said firm of SKM Advocates LLP did not raise these issues before the board as directed.
viii. That it is therefore reasonable to deduce that Mr. Omollo colluded with the procuring entity, took the Applicants instructions, delegated the assignment only for him to withdraw request for review in order to defeat the statutory timelines and favour the 2nd and 3rd Respondents.
ix. That the 1st Respondent was all along aware of the earlier request filed and withdrawn and the circumstances under which it was done.
x. That the firm of Sigano & Omollo LLP colluded with the procuring entity to tactfully orchestrate a scheme to defeat the Applicant’s Request for Review claim and was aided by the Applicants’ advocates SKM Advocates LLP by not raising an objection to the representation at the Review Board.
14. It is their case that as a result of the foregoing, the Review Board’s decision and the procurement proceedings conducted are fatally flawed, unlawful and irregular because the Respondents have breached their obligations under the Public Procurement and Asset Disposal Act and the Constitution as demonstrated hereinabove.
15. The 1st Respondent disregarded the information and agreed to the variation of the criteria which altered the evaluation consideration by introducing additional requirements which doesn’t sit well with the Applicants.
16. It is their case that the Review Board’s decision dated 25th July 2025, is unconstitutional and illegal as it failed to establish that the 2nd and 3rd Respondents fundamentally breached the provisions of Article 227 of the Constitution of Kenya, 2010 by conducting procurement under Tender Reference No. KNEC/RFP/2024-2025/01 in a manner that was neither fair, equitable, transparent, competitive, nor cost-effective and the opaque evaluation process adopted fundamentally undermined the constitutional safeguards meant to ensure accountability, transparency and public trust in procurement processes.
17. They argue that the Respondents contravened section 80 of the Public Procurement and Asset Disposal Act and Regulations 74, 77, 77, 126(1),(2),(3),(4)&(6) and 127 of the Public Procurement and Asset Disposal Regulations, 2020 by applying an evaluation criterion that was not specified in the Tender Documents, thereby rendering the evaluation process subjective, discriminatory and biased against the Applicants.
18. They argue that the Respondents’ decision further breached the Applicant’s legitimate expectations that the procurement process would be fair, transparent and competitive as per the request for proposal submitted to the shortlisted consultants.
The Applicants Submissions;
19. The Applicants submit that the Review Board erred by holding that the challenge against extension of tender submission and tender opening time was time barred.
20. They further submit that they had lodged a valid application for review within the statutory timelines with the Review Board.
21. The Applicants submits that the withdrawal of the application for review without the consent or knowledge of the Applicants herein can only be viewed as an elaborate scheme by the advocate for the 2nd and 3rd Respondents in collusion with the Review Board to defeat the Applicants’ claim on the basis of statutory timelines.
22. They submit that Mr. Justus Omollo from the firm of Sigano & Omollo LLP was instructed by the Applicants to act for them in filing of the application for review.
23. The said advocate who received instructions and legal fees for the matter and was duly furnished with all information and documents in relation to the matter proceeded to delegate the suit to another firm, the firm of Wanza Kivindu & Company Advocates.
24. The application for review was duly filed, and withdrawn thereafter without the knowledge and consent of the Applicants and these facts have not been challenged.
25. Mr. Omollo thereafter refunded the legal fees to the Applicants and thereafter proceeded to receive instructions from the 2nd and 3rd Respondents in a clear case of conflict of interest.
26. The Review Board aware of all these facts proceeded to determine that the claim in relation to the tender submission and opening was time barred.
27. This they submit is a well-orchestrated scheme by the Respondents to deprive the Applicants the right to a fair hearing.
28. The advocate for the 2nd and 3rd Respondents unduly used insider information in mounting the defense by the 2ndand 3rd Respondents at the review Board level and this unduly prejudiced the Applicants herein.
29. Reliance is placed in the case of Delphis Bank Ltd v Channan Singh Chatthe & 6 Others [2005] eKLR where the Court of Appeal held that:
“I have no doubt in my mind that the Respondents will consciously or unconsciously or even inadvertently use that confidential information acquired from the appellants under the retainer during preparation of the loan agreement and the security documents as well as knowledge of subsequent events against the appellants in the main suit. The result will be that the appellants will not only be confronted with their own confidential information but will suffer great injustice and prejudice during the trial of the main suit”.
30. The Applicant prays that the finding by the Review Board, be quashed by this honourable court since the Review Board’s decision and the procurement proceedings conducted are fatally flawed, unlawful and irregular.
31. On another front, they submit that the alteration of the tender submission time from 10.00 am to 4.00pm was irregular, unprocedural and unlawful as the Procuring Entity did not adhere to the provisions of the Public Procurement and Asset Disposal Act as well as the Instruction To Tenderers (hereinafter “itts”) in the RFP.
32. The Respondents have failed to prove by way of evidence how the extension of the tender submission and opening period was done and communicated to the bidders as there was no addendum served on the bidders and this in violates of paragraph ITT 9 of the RFP, which requires the Procuring Entity to communicate any changes or amendments of the Tendering Document through an addendum in writing to all bidders and further publish the addendum on the Procuring Entity’s webpage.
33. They further submit that Review Board erred in upholding the 2nd and 3rdRespondents arguments that the tender submission and opening time was lawfully varied.
34. To buttress this argument they submit that the email excerpt produced by the Respondents as annexure KNEC- 01 is clearly headed “Response on areas of clarification – Tender Number KNEC/RFP/2024-2025-01” which has nothing to do with the alleged extension of tender submission and opening period.
35. They further note that the alleged email has only four properly labelled attachments and none of the subject of the attachments relates to the alleged addendum on extension of tender submission and opening time if the subject of those attachments is anything to go by.
36. They submit that the 2nd and 3rd Respondents have failed to demonstrate how and when the addendum was: firstly, communicated to the JV; and secondly, published on the Procuring Entity’s website in line with ITT 9.2 of the RFP and this violates section 75(3) and 78(3) of the Public Procurement and Assets Disposal Act, 2015.
37. In the absence of the said evidence and noting that both the Respondents and the Interested party did not dispute that the tender proposal of the Interested Party was submitted after 10.00am, They submit that the extension of deadline for submission of the tender proposal was irregular and unlawful and thus the tender proposal by the Interested Party was non-responsive for reason of being submitted beyond the legal submission deadline set in the RFP.
38. On the issue of the criteria they submit that the Procuring Entity did not apply the technical evaluation criteria set out in the RFP in evaluating the JV’s proposal for the following reasons;
39. In its notification of results for the Technical evaluation to the JV through a letter dated 19th June 2025, the Procuring Entity noted that the JV had not provided recommendation letters from clients addressed to CEO KNEC for Contract/LPOS evidence attached; methodology and work plan for the Fintech Edge Co Limited as the second partner in the JV; and qualifications and experience of the key technical staff for Fintech Edge Co Limited, the second partner in the JV.
40. They submit that the JV did provide sufficient experience and qualifications in their individual capacities separate from the qualifications of the independent sub-contractors. The said experience was demonstrated in the recommendation letters from clients and the contracts between the JV partners and clients.
41. The said experience of the JV is evident in page 120 to 172 of the Applicants tender document and the Procuring Entity chose to disregard the experience and focus only on Benir Global Limited’s experience which was provided in page 197 to 239 of the Applicants bundle.
42. They submit that by disregarding the contracts and recommendation letters provided by the JV, the Procuring Entity veered off the technical evaluation criteria in the RFP in violation of section 80(2) of the Public Procurement and Assets Disposal Act, 2015.
43. On the second issue of methodology and work plan for the Fintech Edge Co. Limited as the second partner in the JV, we note that there was no requirement in the RFP for the individual partners in the JV to provide separate methodology and work plan. This would have defeated the purpose of the JV.
44. The JV was compliant as it duly submitted a joint methodology and work plan since the contract would have been executed by the JV and not the individual partners.
45. Contrary to the 2nd and 3rdRespondents assertion, the said methodology does not indicate to have been provided by Benir Global Limited and only indicates that Benir Global Limited would be a logistics system partner in execution of the tasks in the contract as per the methodology.
46. They submit that as per the JV tender documents submitted, Benir Global Limited is a subcontractor by dint of the agreement dated 10th March 2025 annexed on page 39 of the Applicant’s bundle whose role is to provide deployment of digital logistics tracking and management system as well as co-ordination of physical logistics including collection, transportation, delivery, and retrieval of examination materials.
47. They submit further that the methodology provided by the JV was sufficient in the circumstances as it comprehensively covered all the tasks in the contract and by requiring Fintech Edge Co. Limited to provide a separate methodology is unreasonable, contrary to the technical evaluation criteria and defeats the purpose of the JV.
48. On the third issue of the submission of qualifications and experience of the key technical staff for Fintech Edge Co Limited, the Applicants submit that there was no such requirement in the RFP.
49. The JV provided a very comprehensive list of key technical staff together with their qualifications (academic and professional) and experience on page 432 to 527 of the Applicants bundle filed with the Review Board.
50. They submit that it was not a question of apportioning the key technical staff between the partners in the JV, but the requirement was to provide sufficient competent technical staff which the JV did. The key technical staff could not be split between the two partners in of the JV as each of the partner in the JV had a different role to play in the contract.
51. The role of each of the JV partners is outlined in clause 4 of the agreement (page 129 of the Applicant’s bundle filed with the Review Board) which provides that; “Fintech Edge Company Limited guarantees that it shall obtain and be responsible for project management, preparation and submission of tenders and financial advisory services whereas Mitchell Cotts Freight Kenya Limited guarantees that it shall be responsible for all technical design, technical expertise and ensuring compliance with relevant regulations and quality standards.”
52. They submits that it would hence be expected that the key staff in the execution of the contract would be drawn from the Mitchell Cotts Freight Kenya Limited and not Fintech Edge Company Limited due to the technical role to be played by Mitchell Cotts Freight Kenya Limited in the JV.
53. In relation to the application of ITT 41.2 of the RFP as highlighted by Review Board in its ruling, the limitation only relates to the qualifications of the JV. ITT 41.2 provides that:
“The determination shall be based upon an examination of the documentary evidence of the Tenderer''s qualifications submitted by the Tenderer, pursuant to ITT 18. The determination shall not take into consideration the qualifications of other firms such as the Tenderer''s subsidiaries, parent entities, affiliates, subcontractors or any other firm(s) different from the Tenderer that submitted the Tender.”
54. The Applicants submit that the limitation is only applicable when considering the qualifications of the Tenderer. In the case of the JV, the JV partners did provide sufficient qualifications in the form of contracts, recommendation letters and qualifications of key technical staff besides the qualifications of Benir Global Limited, the subcontractor.
55. Therefore, the Procuring Entity they submit erred in disregarding the qualifications of Mitchell Cotts Freight Kenya Limited and Fintech Edge Company Limited on page 240 to 293 of the Applicants bundle filed with the Review Board.
56. The Procuring Entity disregarded the Technical Evaluation Criteria outlined in page 42 of the Applicants bundle filed with the Review Board as well as the provisions of Section 80(2) of the Public Procurement and Assets Disposal Act, 2015 which provides that:
“The evaluation and comparison shall be done using the procedures and criteria set out in the tender documents and, in the tender for professional services, shall have regard to the provisions of this Act and statutory instruments issued by the relevant professional associations regarding regulation of fees chargeable for services rendered”
57. Reliance is also placed in the Court of Appeal in Republic V Public Procurement & Another Ex-ParteHyosung Ebara Company Limited [2011] eKLR where the court held that:
“No other criteria apart from the ones set out in the tender documents should have been relied upon in carrying out the evaluation. The spirit of confidentiality as stated under Section 44 of the Act and strict adherence to the evaluation criteria of tenders in the tendering process as required in Section 66 of the Act must be guarded jealously if the objectives of the Public Procurement and Disposal Act are to be realized.”
58. They submit that it is clear that deviating from the set evaluation criteria in the RFP and disregarding the information provided by the JV while imposing additional and unreasonable requirements on the JV’s proposal is thus incurably flawed and has tainted the entire procurement process by the Procuring Entity.
59. Reliance is placed on the case of Republic v Office of the Director of Public Prosecution & 2 others; Siwa (Ex parte); Mungai (Interested Party) (Miscellaneous Judicial Review E002 of 2025) [2025] KEHC 11884 (KLR) where the court relied on the test outlined in Pastoli v Kabale District Local Government Council & others (2008) 2 EA 303 where the court held as follows:
“In order to succeed in an application for judicial review, the Applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety...Illegality is when the decision-making authority commits an error of law in the process of taking or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality. It is, for example, illegality, where a Chief Administrative Officer of a District interdicts a public servant on the direction of the District Executive Committee, when the powers to do so are vested by law in the District Service Commission...Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards...Procedural Impropriety is when there is a failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision.”
60. In the instant suit, the Applicants submit that the decision of the Review Board is unfair, unreasonable, irrational and illegal for the following reasons:
a) The Review Board misdirected itself and disregarded the evidence in the form of the tender documents submitted to the 2nd and 3rd Respondent which showed that the Applicants met the technical evaluation criteria and that the Procuring Entity erred by disregarding the documents and explanations provided, which position was rubber stamped by the Review Board. Thus, the decision of the Review Board is so unreasonable and irrational as no reasonable authority, addressing itself to the facts and the law before it in the form of evidence adduced, would have made such a decision.
b) The Review Board disregarded the tender evaluation criteria provided in the request for proposal and proceeded to rubberstamp the Procuring Entity’s variation of the requirements set out in the technical evaluation criteria without any justification making their decision unreasonable and illegal as reasonable authority, addressing itself to the facts and the law before it in the form of evidence adduced, would have made such a decision.
c) The Review Board erred in finding that the extension of tender submission and opening time was lawful while there was no valid addendum issued by the procuring entity makes its decision unreasonable and irrational as no reasonable authority, addressing itself to the facts and the law before it in the form of evidence adduced, would have made such a decision.
d) The Review Board erred in finding that the claim by the Applicants that the extension of the tender submission and opening time was time barred while it was well aware that the Applicants had filed a valid claim within the prescribed statutory timelines and the claim withdraw by the advocates of the 2nd and 3rd Respondents. This clearly demonstrates procedural Impropriety as there is a failure to act fairly on the part of the decision-making authority in the process of taking a decision.
61. It submits that the Preliminary Objection by the 2nd and 3rd Respondent lacks merit.
62. They rely in the case of Mukisa Biscuits Manufacturing Ltd v West End Distributors (1969) EA 696 is arguably the locus classicus of what merits as a preliminary objection, where the Honourable Court observed thus;
“… a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit.”
63. The court in the foregoing case proceeded to expound that:
“A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”
64. It is submitted that the Preliminary Objection raised by the 2ndand 3rd Respondents is not based on pure points of law and the court cannot make a determination without delving into the facts of this case.
The 1st Respondent’s Case;
65. The 1st Respondent argues that on 4th July 2025, Mitchell Cotts Freight Kenya Ltd & Fintech Edge Company Ltd, the Applicant herein, filed Request for Review Application No. 78 of 2025 before the Respondent seeking the following orders:
a) A declaration be and is hereby issued that the Accounting Officer and the Procuring Entity have breached the provisions of Articles 10, 27, 201, 227 and 232 of the Constitution of Kenya and Sections 3, 70, 77, 78, 79, 80 and 86 of the Public Procurement and Asset Disposal Act.
b) This Board do issue an Order that the public procurement proceedings commenced by the Respondents through Tender No. KNEC/RFP/2024- 2025/01 FOR PROVISION OF END-TO-END INTERGRATED LOGISTICS SYSTEM AND RELATED SERVICES DURING ADMINISTRATION OF EXAMINATIONS AND ASSESSMENTS be and are hereby annulled in entirety and set aside.
c) This Board do issue an Order that the Respondents’ decision and Notification of Award to the Interested Party in respect to the award of the Tender No. KNEC/RFP/2024-2025/01 FOR PROVISION OF END- TOEND INTERGRATED LOGISTICS SYSTEM AND RELATED SERVICES DURING ADMINISTRATION OF EXAMINATIONS AND ASSESSMENTS be and is hereby annulled and set aside.
d) This Board do issue an Order that the decision and notification of unsuccessful bid dated 19th June 2025 and 20th June 2025 addressed to the Applicant in the Tender No. KNEC/RFP/2024- 2025/01 FOR PROVISION OF END-TO-END INTERGRATED LOGISTICS SYSTEM AND RELATED SERVICES DURING ADMINISTRATION OF EXAMINATIONS AND ASSESSMENTS be and is hereby annulled and set aside.
e) This Board do review the Applicants’ Technical Evaluation on the Tender No. KNEC/RFP/2024- 2025/01 FOR PROVISION OF END-TO-END INTERGRATED LOGISTICS SYSTEM AND RELATED SERVICES DURING ADMINISTRATION OF EXAMINATIONS AND ASSESSMENTS and award appropriate scores and admit the Applicants bid to the financial stage of evaluation.
f) In the alternative to prayer (e) above, this Board do issue an Order directing the Procuring Entity and Accounting Officer to reevaluate the Tender No. KNEC/RFP/2024-2025/01 FOR PROVISION OF END-TO- END INTERGRATED LOGISTICS SYSTEM AND RELATED SERVICES DURING ADMINISTRATION OF EXAMINATIONS AND ASSESSMENTS at the technical stage taking into consideration the findings and orders of the Public Procurement Administrative Review Board herein.
g) In the alternative to prayers (e) and (f) above this Board do direct the Accounting Officer of Kenya National Examination Council to commence the procurement proceedings afresh taking into consideration the findings and orders of the Public Procurement Administrative Review Board herein within such period to be stipulated.
h) This Board do grant the Applicants damages for loss of business amounting to a sum of KES 80,737783.
i) The Respondents be ordered to pay costs and incidentals to these proceedings.
j) Any other relief that the Board may deem fit and just to grant.
66. On 25th July 2025, the Respondent, made the following orders:
a) The Request for Review dated 4th July 2025 is hereby dismissed.
b) The 1st Respondent, Accounting Officer of the Kenya National Examination Council, be and is hereby directed to proceed with and oversee the tender proceedings for Tender No. KNEC/RFP/2024- 2025/01 – Provision of End- to-End Integrated Logistics System and Related Services During Administration of Examinations and Assessments to their logical and lawful conclusion; and
c) Each party shall bear its own costs of the proceedings.
67. It is its case that in determining Request for Review No. 78 of 2025, the 1st Respondent began by addressing several preliminary issues, including the timeliness of the Applicant’s written submissions.
68. The Board found that while the submissions were filed outside the prescribed timeline, they were noneth
[...truncated]