1. By an originating motion dated 2 April 2026 the applicant has sought judicial review reliefs of certiorari and prohibition against the respondent’s decision dated 21 March 2026, in Request for Review Application No. 32 of 2026. The prayers for these judicial review reliefs have been couched in the following terms:
“1.That this Honourable Court be pleased to issue an order of CERTIORARI, to remove into the High Court and quash and/or set aside the Decision of the Public Procurement Administrative Review Board dated 21st March 2026 in Public Procurement Administrative Review Board Application No. 32 of 2026, Kalmar Finland OY v Accounting Officer, Kenya Ports Authority, Kenya Ports Authority, MOL CY NV and Wood Creek Limited, in respect of Tender No. KPA/036/2025-26/ES for Supply, Testing and Commissioning of Terminal Tractors.
2.That this Honourable Court be pleased to issue an order of PROHIBITION, directed at the 2nd and 3rd Respondents, prohibiting them from implementing the Decision of the 1st Respondent dated 21st March 2026 in Public Procurement Administrative Review Board Application No. 32 of 2026, Kalmar Finland OY v Accounting Officer, Kenya Ports Authority, Kenya Ports Authority, MOL CY NV and Wood Creek Limited, in respect of Tender No. KPA/036/2025-26/ES for Supply, Testing and Commissioning of Terminal Tractors.”
2. The motion is expressed to be brought under the provisions of Articles 10, 47, 48, SO (1) and 227 of the Constitution; , Sections 7,9, 10 and 11 of the Fair Administrative Actions Act Cap 7L; and Rules 9, 11, 13 and 21 of the Fair Administrative Action Rules, 2024, Section 175 of the Public Procurement and Asset Disposal Act Cap 412C. It is supported by the affidavit of Eunice J. Songok who has described herself as “a director of an agent of the applicant” who is said to be the “the Successful Bidder in LOT 1 of Tender No. KPA/036/2025-26/ES for Supply, Testing and Commissioning of Terminal Tractors (hereinafter, the "subject tender'').
3. I must mention at the very outset that a similar application, albeit by way of judicial review, was filed in this Honourable Court by parties named in this motion as the 2nd and 3rd respondents as application no. E009 of 2026. The 1st respondent in this suit appears in the same capacity in application no. E009 of 2026 while the applicant and the rest of the interested parties in this suit appear as interested parties in the suit filed first in time. In other words, all the parties in this suit appear either in the same or different capacity in application no. E009 of 2026.
4. Like in suit no. E009 of 2026, the subject of this suit is the decision in request for review application no. 32 of 2026. Not surprisingly, the impugned decision is questioned, more or less, on similar legal grounds in both suits. The factual basis of the two suits is also similar.
5. Due to these similarities, the two suits were heard severally and, inevitably, the learned counsel adopted their submissions in application no. E009 of 2026 in this particular application.
6. Against this background, this judgment is, to a greater degree, on all fours with the judgment in application no. E0010 of 2026.
7. In summary by letters referenced PSM/CTC/1/01 (036) Vol.I dated 24 December 2024, the 2nd and 3rd respondent invited four approved Original Equipment Manufacturers (OEM) firms, to submit their bids for participation in a tender, more particularly described as “Tender No. KPN036/2025-26/ES -Supply, Testing and Commissioning of Terminal Tractors” (hereinafter “the subject tender”). Thus, the tendering method adopted in the subject tender was that of a restricted tender. The applicant in this suit was one of the four invited bidders.
8. Following an evaluation of the subject tender, the 2ⁿᵈ Respondent, vide a letter dated 13 February 2026 notified the Applicant that it had been awarded Lot 1 of the subject tender. Subsequently vide a letter dated 17 February 2026, the Applicant signified its acceptance of the award of Lot 1 of the subject tender.
9. The 4th respondent filed a Request for Review No. 32 of 2026 before the Respondent challenging the 1st respondent’s decision. On 21 March 2026, the respondent delivered a decision on the application and transmitted the decision to the parties by way of an email dated 22 March 2026. According to the impugned decision, the 1st respondent nullified and set aside the letters of Notification and Intention of Award dated 13 February 2026 issued by the Procuring Entity to the successful bidders in respect of the subject tender.
10. The 1st respondent further directed the 2nd and 3rd respondents to reinstate the 4th respondent's tender and evaluate it from the technical evaluation stage, together with all other tenders that were responsive at the preliminary evaluation stage, and proceed with the tender to its logical and lawful conclusion, within 21 days from the date of the respondent’s decision.
11. Being dissatisfied with the respondent’s decision, the applicant lodged the instant judicial review application in exercise of its right under section 175 (1) of the Act which provides, inter alia, that a person aggrieved by a decision made by the Review Board may seek judicial review by this Honourable Court within fourteen days from the date of the date of the decision.
12. Like the applicants in application no. E009 of 2026, the applicant’s position is that the 1st respondent deviated from the intention of the procuring entity which was represented in the terms and conditions of the tender. To begin with, the tender document mandatorily required that the Tax Compliance Certificate or its equivalent needed to be valid or current. It was not in dispute that the equivalent of the Tax Compliance Certificate submitted by the 1st Interested Party was undated. The applicant’s position is that, in these circumstances, the validity and currency of the “Certificate of Paid Taxes” submitted by the 4th respondent (as the equivalent of a valid or current Tax Compliance Certificate issued by the Kenya Revenue Authority) could not be ascertained on its face.
13. The 1st respondent is faulted to have deliberately ignored and failed to interpret the meaning of the word “equivalent” used in the Tender Document, thus, occasioning an irrational decision.
14. According to the applicant, bids which do not meet all the minimum mandatory requirements stipulated in a bid document are to be regarded as non-responsive and rejected without further consideration, a principle that the 1st respondent is alleged to have disregarded.
15. Further, there was a serious misdirection on the part of the 1st respondent as it deviated from the intention contained in the terms and conditions of the tender document by ignoring an express mandatory requirement under Section Ill Clause 2.2 (v) - of the Tender Document, which clearly required the bid to contain a valid quality certificate for the manufacturing company stating clearly that their (bidder or bidders) systems were certified for design and manufacturing processes, that is, ISO certification or equivalent. The 1st respondent is alleged to have acted ultra vires by assuming a role extraneous to its mandate, when it construed that the primary duty for the terminal tractors was 'material and load handling at the port' which interpretation had the effect of rewriting the Tender Document which, contrary to the 1st respondent’s interpretation, expressly provided for certification for 'design and manufacturing processes', thereby occasioning an illegality.
16. The 1st respondent took what, in the applicant’s view, an irrational position that the equivalent of a valid or current Tax Compliance Certificate and the scope of ISO Certification, which were mandatory tender requirements could only be ascertained at due diligence stage, yet the documents submitted by the 4th respondent were evidently non-compliant at face value during the preliminary evaluation stage.
17. The 1st respondent is also said to have acted ultra vires when it assumed a role extraneous to its mandate and ended up rewriting the Tender Document when it presumed that the scope of the management systems supplied by the 4th respondent was broad and encompassed the requirement of design and manufacturing, yet the scope on the Certificates submitted by the 4th respondent clearly stated that their systems were certified for other roles than 'Design and Manufacturing' that was mandatorily required in the Tender Document. The respondent’s decision of misinterpreting and equating 'assembly of port machinery and load handling equipment' to 'design and manufacturing' is contended to be irrational and illegal.
18. By ignoring the mandatory tender requirement that the bids were to contain a valid quality certificate for the manufacturing company stating clearly that their systems were certified for design and manufacturing processes, i.e. ISO certification or equivalent, the 1st respondent acted arbitrarily and went against the express mandatory requirements of the tender document. According to the applicant, the 1st respondent assumed the role of the evaluation committee of the procuring entity, thus, rendering its decision irrational and unlawful.
19. On the question of Beneficial Ownership, the 1st respondent acknowledged that indeed the 4th respondent's Tenderer Information Form was not fully completed despite being a mandatory requirement. The 4th respondent admitted that it did not comply with this mandatory requirement of disclosing its beneficial owners as it was its opinion that the said information would be provided through the Beneficial Ownership Disclosure Form after the “notification of award”.
20. Despite the 4th respondent’s admission of non-compliance with this mandatory requirement, the respondent went on an extraneous mission of justifying why its bid was responsive, when reasons for the justification were not even pleaded by the 4th respondent or at all.
21. The respondent observed that Form 6 of the Tender Document made a mention of beneficial ownership but provided no details of the nature of information required and further, that no space on the Form to fill in the information was provided. This was contrary to the evidence available because Form 8 contained detailed information on the nature of information on beneficial ownership and spaces to be filled. In any event, the 1st respondent failed to take into account the fact that in case of any ambiguity on mandatory requirements, the 4th respondent or any other bidder ought to have sought clarification from the Procuring Entity before proceeding to participate in the tendering process and that in the absence of any complaint or inquiry, it was assumed that the available information was clear to the bidders.
22. The 1st respondent’s finding that there was 'no detail on the nature of information required on beneficial ownership' to justify the 4th respondent’s non-compliance pointed to an arbitrary and illegal action by the 1st respondent which went against the express requirements of the tender document.
23. The 1st respondent is alleged to have assumed the role of the evaluation committee of the Procuring Entity by hypothesizing that “Besides, the information on the beneficial ownership entails details in relation to contract awards required upon issuance of notification of award to the successful in the tenderer at the contract stage” thus deviating from the
intention contained in the terms and conditions of the tender documents, specifically Form 6 and consequently making its findings irrational.
24. On the requirement for a Schedule of Deviations, the 1st respondent appreciated that under Clause 2.2 (xiv) of the Tender Document, each bidder was mandatorily required to provide a separate schedule of deviations in the case of deviations in the specifications submitted by the bidder from the specifications in the tender document. The 1st respondent also appreciated that the 4th respondent acknowledged non-compliance but justified its failure to submit a separate schedule of deviations by contending that no schedule of deviations was required because its bid 'largely’ complied with or exceeded the specifications in the Tender Document.
25. In so finding, the 1st respondent totally ignored the mandatory clear contents and requirements of Section Ill Clause 2.2 (5. xiv) of the Tender Document; it instead examined the 4th respondent's tender and observed that their specifications were largely in accordance with the Procuring Entity's required specifications. The respondent reached an irrational decision that the 4th respondent need not have submitted a separate schedule of deviations as required in the Tender Document.
26. Section Ill Clause 2.2 (5. xiv) of the Tender Document, mandatorily required the bid submission to contain the Tenderer's Technical specifications and drawings in form of a clause-by-clause commentary on the Procuring Entity's Technical Specifications demonstrating substantial responsiveness of the Equipment to those specifications, or a statement of deviations and exceptions to the provisions of the Technical Specifications. The mandatory requirement specified that in the case of deviations from the tender specifications given, a separate schedule of deviations was to be prepared accompanied by an account explaining how the departure from the technical specifications of the tender affected the "'Terminal Tractors performance, durability and overall dimensions and why the tenderer will choose to offer the Terminal Tractors with the stated deviation as opposed to complying with the technical specifications given by the procuring entity.
27. The Tender Document also made it mandatory that this separate schedule of deviations be signed and stamped by the manufacturer. Despite the admission of non-compliance by the 4th respondent, the 1st respondent acted arbitrarily and went against the express mandatory requirements of the tender document by finding that the 4th respondent’s specifications were largely in accordance with the Procuring Entity's required specifications.
28. The 1st respondent did not define what it meant by the term 'largely' and, in the process, it ended up assuming the role of the evaluation committee by evaluating and deeming the 4th respondent’s Bid as responsive based on a parameter alien to the mandatory tender requirements. Yet, according to the standards prescribed in the tender document, the bid could not have possibly progressed beyond the preliminary evaluation Stage.
29. It is the Applicant’s position that the use of the statement “largely in accordance with the Procuring Entity's required specifications” does not mean full compliance was achieved particularly for mandatory requirements in tender proceedings but confirmed some deficiencies or gaps existed in the 4th respondent's bid, gaps which the 1st respondent ignored, rendering its decision what the applicants have described as “an oxymoron”.
30. It is the applicant’s case that the end result of all these infractions is that the 1st respondent illegally and irrationally rewrote the Tender Document to suit the 4th respondent’s bid. By directing an otherwise non-responsive bid to be reinstated and evaluated from the technical evaluation stage, the 1st respondent is alleged to have legitimised a haphazard procurement process which condones, overlooks and justifies bending of express Tender Requirements in order to accommodate tenders, such as the 4th respondent’s tender, that fail to meet all mandatory requirements of the Tender Document.
31. According to the applicant, the 1st respondent failed to exercise its mandate to ensure transparent, reasonable, accountable and fair process in respect of the criteria utilized in preliminary mandatory evaluation of the Tender.
32. The 1st respondent did not file any response to the motion. The 2nd and 3rd respondents filed a replying affidavit sworn in that behalf by Daniel M. Amuyunzu who has introduced himself as the principal supply chain management officer at Kenya Ports Authority. As expected, Amuyunzu swore that the 2nd and 3rd respondents supported the applicant’s motion.
33. Turning to the merits of the applicant’s application, the 1st respondent’s decision is impugned on the judicial review grounds of illegality and irrationality. These grounds were defined by Lord Diplock in the English case of Council of Civil Service Unions versus Minister for the Civil Service (1985) A.C. 374,410 as two of the three traditional grounds of judicial review. In that case, Lord Diplock set out the three heads which he described as “the grounds upon which administrative action is subject to control by judicial review”. These grounds are illegality, irrationality and procedural impropriety. While discussing susceptibility of administrative actions to judicial review and, in the process defining these grounds, the learned judge stated as follows:
“My Lords, I see no reason why simply because a decision-making power is derived from a common law and not a statutory source, it should for that reason only be immune from judicial review. Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call “illegality,” the second “irrationality” and the third “procedural impropriety.” That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of “proportionality” which is recognised in the administrative law of several of our fellow members of the European Economic Community; but to dispose of the instant case the three already well-established heads that I have mentioned will suffice.
By “illegality” as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.
By “irrationality” I mean what can by now be succinctly referred to as “Wednesbury unreasonableness” (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the court's exercise of this role, resort I think is today no longer needed to Viscount Radcliffe's ingenious explanation in Edwards v. Bairstow [1956] A.C. 14 of irrationality as a ground for a court's reversal of a decision by ascribing it to an inferred though unidentifiable mistake of law by the decision-maker. “Irrationality” by now can stand upon its own feet as an accepted ground on which a decision may be attacked by judicial review.
I have described the third head as “procedural impropriety” rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. But the instant case is not concerned with the proceedings of an administrative tribunal at all.”
34. These grounds of illegality, irrationality and procedural impropriety are ordinarily regarded as the traditional grounds for judicial review. In exercise of its discretion, a judicial review court will intervene and may grant the remedy for judicial review if any of them is proved to exist. But as Lord Diplock suggested, the list is by no means exhaustive. The learned judge hastened to say that further development of this area of law may yield further grounds on a case by case basis. It is in this spirit, the learned judge suggested, that the principle of proportionality as a further ground for judicial review has been developed. According to the Court of Appeal in Suchan Investment Limited versus Ministry of National Heritage & Culture & 3 Others (2016) Eklr, this principle was first adopted in R versus Home Secretary; ex parte, Daly (2001) 2 AC 532.
35. The applicant is concerned about the grounds of illegality and irrationality. Speaking of illegality, the question is whether the 1st respondent acted in excess of jurisdiction and, in particular, whether its decision is ultra vires the express provisions of the Public Procurement and Asset Disposal Act and the regulations made thereunder.
36. The applicant’s grievances which form the basis of this particular ground stem from the fact that despite the 4th respondent’s bid falling short of what was expressly prescribed in the tender document as mandatory requirements for a responsive tender, the respondent determined the bid to have met the threshold ostensibly because, in the respondent’s view, the omissions in the bid were negligible and that the 4th respondent either met or “largely” met the mandatory conditions.
37. The concept of mandatory requirements appears to be rooted in section 60 (1) and (2) as read with section 70(6) of the Act; section 60(1) and (2) of the of the Act states as follows:
60. Specific requirements
(1)An accounting officer of a procuring entity shall prepare specific requirements relating to the goods, works or services being procured that are clear, that give a correct and complete description of what is to be procured and that allow for fair and open competition among those who may wish to participate in the procurement proceedings.
(2) The specific requirements shall include all the procuring entity's technical requirements with respect to the goods, works or services being procured.
38. As far as specific technical requirements are concerned, subsection (3) provides finer details of what they entail; its states:
(3) The technical requirements shall, where appropriate—
(a) conform to design, specification, functionality and performance;
(b) be based on national or international standards whichever is superior;
(c) factor in the life of the item;
(d) factor in the socio-economic impact of the item;
(e) be environment-friendly;
(f) factor in the cost disposing the item; and
(g) factor in the cost of servicing and maintaining the item.
39. In subsection (4) (a) and (b), the accounting officer is cautioned against making reference to any particular trademark, name, patent, design, type, producer or service provider or to a specific origin in the technical requirements unless there is no other sufficiently precise or intelligible way of describing the requirements; and, the requirements allow equivalents to what is referred to.
Section 70 (6), on the other hand, reads as follows:
70 (6) The tender documents shall set out the following—
(a)the specific requirements prepared under section 60 relating to the goods, works or services being procured and the time limit for delivery or completion.
40. As the consumer of the goods or services for which a tender has been floated, the procuring entity stands in a better position to set the basic minimum standards required of the goods or services and the qualifications of the tenderers bidding to deliver the goods or services tendered for.
41. It is for this reason that under section 79 of the Act, a tender is considered responsive only if it meets eligibility requirements under section 55 of the Act and mandatory requirements specified in the tender documents. Except in those limited circumstances which the Act considers as “minor deviations that do not materially depart from the requirements set out in the tender documents; or errors or oversights that can be corrected without affecting the substance of the tender”, mandatory requirements are not negotiable.
42. For the avoidance of doubt, the procuring entity is prohibited from accepting any tender that falls short of the mandatory requirement. This is provided for under Regulation 75(1) of the Public Procurement and Asset Disposal Regulations, 2020 which is express that:
A procuring entity shall reject all tenders, which are not in conformity to the requirements of section 79 of the Act and regulation 74 of these Regulations.
43. Turning back to the subject tender, it is not in dispute that the procuring entity set forth in the tender document mandatory requirements by which all the identified tenderers, including the 4th respondent, were bound. Of particular relevance to this application are four requirements; these are:
(a) a valid or current tax compliance certificate or equivalent;
(b) a validity quality certificate for the manufacturing company
(c) disclosure of beneficial ownership of information on beneficial ownership of the bidder or tenderer
(d) Schedule of deviations from the specifications given in the tender document.
44. The requirement for a valid or current tax compliance certificate or its equivalent is found in clause 2.2 of the tender document under the heading “Preliminary examination for Determination of Responsiveness”. According to Clause 2.2(5) (ii) a “Valid/Current Tax Compliance Certificate or equivalent” is singled out as among the mandatory documents which a tenderer for the subject tender ought to have included in his bid submission.
45. In what the 4th respondent thought was compliance with this requirement, it submitted what was described in the impugned decision as a “certificate of paid taxes” issued by the Government of Finland. Nothing much turned on the description given to the certificate as such; the bone of contention is that the certificate was undated and, therefore, as much as it could be embraced as the equivalent of the local Tax Compliance Certificate, it was impossible to determine whether or not it was current, as at the time material to the tender period.
46. In its decision, the 1st respondent appreciated that the 4th respondent was foreign company- it was, in fact a Finnish company and the certificate it presented was issued by the “Finnish Tax Administration.” That notwithstanding, the respondent rightly held that the 4th respondent was not exempted from complying with the mandatory requirement of proof of payment of tax to the Finnish Government.
47. The certificate is said to have read in part as follows:
"This is to certify that the taxpayer has paid all their taxes, charges and other debts to the Tax Administrator as well as filed the required tax-related reports in the past 12 months."
48. But as noted, the certificate was not dated and, therefore, it was impossible to tell, on its face, the period or year the words “the past 12 months” referred to. The 1st respondent acknowledged this difficulty but still it was prepared to let the certificate pass notwithstanding this inadequacy. To this end, the 1st respondent held as follows:
“It is the Board's humble view that there is only one way to ascertain that the Certificate of Paid Taxes issued by the Finnish Tax Administration to the Applicant meets the threshold of the subject tender is to check with the Finish Tax Authorities. A legal avenue is provided for such fact finding under Section 83 of the Act on due diligence, which provision is also supported by ITT 37 of the tender document.
ITT 37 states as follows:
"The Procuring Entity shall determine, to its satisfaction, whether the eligible Tenderer that is selected as having submitted the lowest evaluated cost and substantially responsive Tender, meets the qualifying criteria specified in Section III, Evaluation and Qualification Criteria.”
49. Having come to this conclusion, the 1st respondent held, thus:
“85. Accordingly, the Board is convinced that the Procuring Entity did not have sufficient reason to disallow the Certificate of Paid Taxes submitted by the Applicant in fulfilment of the tender requirement on tax compliance. To that extent, the Board finds that the Procuring Entity applied a criterion outside the tender document.”
50. With due respect to the 1st respondent Board, due diligence is not an avenue in the procurement process to fill in the gaps or to make up for infractions in an otherwise non-responsive bid; neither is it meant to undercut bids that have made the cut as the lowest evaluated bids. Due diligence is a discretionary exercise undertaken after the evaluation but before the award is made for the purpose of the procuring entity satisfying itself that the successful bid has indeed met all the requirements for a successful bid. The relevant provision in this regard is section 83 of the Act which provides as follows:
83. Post-qualification
(1) An evaluation committee may, after tender evaluation, but prior to the award of the tender, conduct due diligence and present the report in writing to confirm and verify the qualifications of the tenderer who submitted the lowest evaluated responsive tender to be awarded the contract in accordance with this Act.
(2) The conduct of due diligence under subsection (1) may include obtaining confidential references from persons with whom the tenderer has had prior engagement.
(3) To acknowledge that the report is a true reflection of the proceedings held, each member who was part of the due diligence
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“1.That this Honourable Court be pleased to issue an order of CERTIORARI, to remove into the High Court and quash and/or set aside the Decision of the Public Procurement Administrative Review Board dated 21st March 2026 in Public Procurement Administrative Review Board Application No. 32 of 2026, Kalmar Finland OY v Accounting Officer, Kenya Ports Authority, Kenya Ports Authority, MOL CY NV and Wood Creek Limited, in respect of Tender No. KPA/036/2025-26/ES for Supply, Testing and Commissioning of Terminal Tractors.
2.That this Honourable Court be pleased to issue an order of PROHIBITION, directed at the 2nd and 3rd Respondents, prohibiting them from implementing the Decision of the 1st Respondent dated 21st March 2026 in Public Procurement Administrative Review Board Application No. 32 of 2026, Kalmar Finland OY v Accounting Officer, Kenya Ports Authority, Kenya Ports Authority, MOL CY NV and Wood Creek Limited, in respect of Tender No. KPA/036/2025-26/ES for Supply, Testing and Commissioning of Terminal Tractors.”
2. The motion is expressed to be brought under the provisions of Articles 10, 47, 48, SO (1) and 227 of the Constitution; , Sections 7,9, 10 and 11 of the Fair Administrative Actions Act Cap 7L; and Rules 9, 11, 13 and 21 of the Fair Administrative Action Rules, 2024, Section 175 of the Public Procurement and Asset Disposal Act Cap 412C. It is supported by the affidavit of Eunice J. Songok who has described herself as “a director of an agent of the applicant” who is said to be the “the Successful Bidder in LOT 1 of Tender No. KPA/036/2025-26/ES for Supply, Testing and Commissioning of Terminal Tractors (hereinafter, the "subject tender'').
3. I must mention at the very outset that a similar application, albeit by way of judicial review, was filed in this Honourable Court by parties named in this motion as the 2nd and 3rd respondents as application no. E009 of 2026. The 1st respondent in this suit appears in the same capacity in application no. E009 of 2026 while the applicant and the rest of the interested parties in this suit appear as interested parties in the suit filed first in time. In other words, all the parties in this suit appear either in the same or different capacity in application no. E009 of 2026.
4. Like in suit no. E009 of 2026, the subject of this suit is the decision in request for review application no. 32 of 2026. Not surprisingly, the impugned decision is questioned, more or less, on similar legal grounds in both suits. The factual basis of the two suits is also similar.
5. Due to these similarities, the two suits were heard severally and, inevitably, the learned counsel adopted their submissions in application no. E009 of 2026 in this particular application.
6. Against this background, this judgment is, to a greater degree, on all fours with the judgment in application no. E0010 of 2026.
7. In summary by letters referenced PSM/CTC/1/01 (036) Vol.I dated 24 December 2024, the 2nd and 3rd respondent invited four approved Original Equipment Manufacturers (OEM) firms, to submit their bids for participation in a tender, more particularly described as “Tender No. KPN036/2025-26/ES -Supply, Testing and Commissioning of Terminal Tractors” (hereinafter “the subject tender”). Thus, the tendering method adopted in the subject tender was that of a restricted tender. The applicant in this suit was one of the four invited bidders.
8. Following an evaluation of the subject tender, the 2ⁿᵈ Respondent, vide a letter dated 13 February 2026 notified the Applicant that it had been awarded Lot 1 of the subject tender. Subsequently vide a letter dated 17 February 2026, the Applicant signified its acceptance of the award of Lot 1 of the subject tender.
9. The 4th respondent filed a Request for Review No. 32 of 2026 before the Respondent challenging the 1st respondent’s decision. On 21 March 2026, the respondent delivered a decision on the application and transmitted the decision to the parties by way of an email dated 22 March 2026. According to the impugned decision, the 1st respondent nullified and set aside the letters of Notification and Intention of Award dated 13 February 2026 issued by the Procuring Entity to the successful bidders in respect of the subject tender.
10. The 1st respondent further directed the 2nd and 3rd respondents to reinstate the 4th respondent's tender and evaluate it from the technical evaluation stage, together with all other tenders that were responsive at the preliminary evaluation stage, and proceed with the tender to its logical and lawful conclusion, within 21 days from the date of the respondent’s decision.
11. Being dissatisfied with the respondent’s decision, the applicant lodged the instant judicial review application in exercise of its right under section 175 (1) of the Act which provides, inter alia, that a person aggrieved by a decision made by the Review Board may seek judicial review by this Honourable Court within fourteen days from the date of the date of the decision.
12. Like the applicants in application no. E009 of 2026, the applicant’s position is that the 1st respondent deviated from the intention of the procuring entity which was represented in the terms and conditions of the tender. To begin with, the tender document mandatorily required that the Tax Compliance Certificate or its equivalent needed to be valid or current. It was not in dispute that the equivalent of the Tax Compliance Certificate submitted by the 1st Interested Party was undated. The applicant’s position is that, in these circumstances, the validity and currency of the “Certificate of Paid Taxes” submitted by the 4th respondent (as the equivalent of a valid or current Tax Compliance Certificate issued by the Kenya Revenue Authority) could not be ascertained on its face.
13. The 1st respondent is faulted to have deliberately ignored and failed to interpret the meaning of the word “equivalent” used in the Tender Document, thus, occasioning an irrational decision.
14. According to the applicant, bids which do not meet all the minimum mandatory requirements stipulated in a bid document are to be regarded as non-responsive and rejected without further consideration, a principle that the 1st respondent is alleged to have disregarded.
15. Further, there was a serious misdirection on the part of the 1st respondent as it deviated from the intention contained in the terms and conditions of the tender document by ignoring an express mandatory requirement under Section Ill Clause 2.2 (v) - of the Tender Document, which clearly required the bid to contain a valid quality certificate for the manufacturing company stating clearly that their (bidder or bidders) systems were certified for design and manufacturing processes, that is, ISO certification or equivalent. The 1st respondent is alleged to have acted ultra vires by assuming a role extraneous to its mandate, when it construed that the primary duty for the terminal tractors was 'material and load handling at the port' which interpretation had the effect of rewriting the Tender Document which, contrary to the 1st respondent’s interpretation, expressly provided for certification for 'design and manufacturing processes', thereby occasioning an illegality.
16. The 1st respondent took what, in the applicant’s view, an irrational position that the equivalent of a valid or current Tax Compliance Certificate and the scope of ISO Certification, which were mandatory tender requirements could only be ascertained at due diligence stage, yet the documents submitted by the 4th respondent were evidently non-compliant at face value during the preliminary evaluation stage.
17. The 1st respondent is also said to have acted ultra vires when it assumed a role extraneous to its mandate and ended up rewriting the Tender Document when it presumed that the scope of the management systems supplied by the 4th respondent was broad and encompassed the requirement of design and manufacturing, yet the scope on the Certificates submitted by the 4th respondent clearly stated that their systems were certified for other roles than 'Design and Manufacturing' that was mandatorily required in the Tender Document. The respondent’s decision of misinterpreting and equating 'assembly of port machinery and load handling equipment' to 'design and manufacturing' is contended to be irrational and illegal.
18. By ignoring the mandatory tender requirement that the bids were to contain a valid quality certificate for the manufacturing company stating clearly that their systems were certified for design and manufacturing processes, i.e. ISO certification or equivalent, the 1st respondent acted arbitrarily and went against the express mandatory requirements of the tender document. According to the applicant, the 1st respondent assumed the role of the evaluation committee of the procuring entity, thus, rendering its decision irrational and unlawful.
19. On the question of Beneficial Ownership, the 1st respondent acknowledged that indeed the 4th respondent's Tenderer Information Form was not fully completed despite being a mandatory requirement. The 4th respondent admitted that it did not comply with this mandatory requirement of disclosing its beneficial owners as it was its opinion that the said information would be provided through the Beneficial Ownership Disclosure Form after the “notification of award”.
20. Despite the 4th respondent’s admission of non-compliance with this mandatory requirement, the respondent went on an extraneous mission of justifying why its bid was responsive, when reasons for the justification were not even pleaded by the 4th respondent or at all.
21. The respondent observed that Form 6 of the Tender Document made a mention of beneficial ownership but provided no details of the nature of information required and further, that no space on the Form to fill in the information was provided. This was contrary to the evidence available because Form 8 contained detailed information on the nature of information on beneficial ownership and spaces to be filled. In any event, the 1st respondent failed to take into account the fact that in case of any ambiguity on mandatory requirements, the 4th respondent or any other bidder ought to have sought clarification from the Procuring Entity before proceeding to participate in the tendering process and that in the absence of any complaint or inquiry, it was assumed that the available information was clear to the bidders.
22. The 1st respondent’s finding that there was 'no detail on the nature of information required on beneficial ownership' to justify the 4th respondent’s non-compliance pointed to an arbitrary and illegal action by the 1st respondent which went against the express requirements of the tender document.
23. The 1st respondent is alleged to have assumed the role of the evaluation committee of the Procuring Entity by hypothesizing that “Besides, the information on the beneficial ownership entails details in relation to contract awards required upon issuance of notification of award to the successful in the tenderer at the contract stage” thus deviating from the
intention contained in the terms and conditions of the tender documents, specifically Form 6 and consequently making its findings irrational.
24. On the requirement for a Schedule of Deviations, the 1st respondent appreciated that under Clause 2.2 (xiv) of the Tender Document, each bidder was mandatorily required to provide a separate schedule of deviations in the case of deviations in the specifications submitted by the bidder from the specifications in the tender document. The 1st respondent also appreciated that the 4th respondent acknowledged non-compliance but justified its failure to submit a separate schedule of deviations by contending that no schedule of deviations was required because its bid 'largely’ complied with or exceeded the specifications in the Tender Document.
25. In so finding, the 1st respondent totally ignored the mandatory clear contents and requirements of Section Ill Clause 2.2 (5. xiv) of the Tender Document; it instead examined the 4th respondent's tender and observed that their specifications were largely in accordance with the Procuring Entity's required specifications. The respondent reached an irrational decision that the 4th respondent need not have submitted a separate schedule of deviations as required in the Tender Document.
26. Section Ill Clause 2.2 (5. xiv) of the Tender Document, mandatorily required the bid submission to contain the Tenderer's Technical specifications and drawings in form of a clause-by-clause commentary on the Procuring Entity's Technical Specifications demonstrating substantial responsiveness of the Equipment to those specifications, or a statement of deviations and exceptions to the provisions of the Technical Specifications. The mandatory requirement specified that in the case of deviations from the tender specifications given, a separate schedule of deviations was to be prepared accompanied by an account explaining how the departure from the technical specifications of the tender affected the "'Terminal Tractors performance, durability and overall dimensions and why the tenderer will choose to offer the Terminal Tractors with the stated deviation as opposed to complying with the technical specifications given by the procuring entity.
27. The Tender Document also made it mandatory that this separate schedule of deviations be signed and stamped by the manufacturer. Despite the admission of non-compliance by the 4th respondent, the 1st respondent acted arbitrarily and went against the express mandatory requirements of the tender document by finding that the 4th respondent’s specifications were largely in accordance with the Procuring Entity's required specifications.
28. The 1st respondent did not define what it meant by the term 'largely' and, in the process, it ended up assuming the role of the evaluation committee by evaluating and deeming the 4th respondent’s Bid as responsive based on a parameter alien to the mandatory tender requirements. Yet, according to the standards prescribed in the tender document, the bid could not have possibly progressed beyond the preliminary evaluation Stage.
29. It is the Applicant’s position that the use of the statement “largely in accordance with the Procuring Entity's required specifications” does not mean full compliance was achieved particularly for mandatory requirements in tender proceedings but confirmed some deficiencies or gaps existed in the 4th respondent's bid, gaps which the 1st respondent ignored, rendering its decision what the applicants have described as “an oxymoron”.
30. It is the applicant’s case that the end result of all these infractions is that the 1st respondent illegally and irrationally rewrote the Tender Document to suit the 4th respondent’s bid. By directing an otherwise non-responsive bid to be reinstated and evaluated from the technical evaluation stage, the 1st respondent is alleged to have legitimised a haphazard procurement process which condones, overlooks and justifies bending of express Tender Requirements in order to accommodate tenders, such as the 4th respondent’s tender, that fail to meet all mandatory requirements of the Tender Document.
31. According to the applicant, the 1st respondent failed to exercise its mandate to ensure transparent, reasonable, accountable and fair process in respect of the criteria utilized in preliminary mandatory evaluation of the Tender.
32. The 1st respondent did not file any response to the motion. The 2nd and 3rd respondents filed a replying affidavit sworn in that behalf by Daniel M. Amuyunzu who has introduced himself as the principal supply chain management officer at Kenya Ports Authority. As expected, Amuyunzu swore that the 2nd and 3rd respondents supported the applicant’s motion.
33. Turning to the merits of the applicant’s application, the 1st respondent’s decision is impugned on the judicial review grounds of illegality and irrationality. These grounds were defined by Lord Diplock in the English case of Council of Civil Service Unions versus Minister for the Civil Service (1985) A.C. 374,410 as two of the three traditional grounds of judicial review. In that case, Lord Diplock set out the three heads which he described as “the grounds upon which administrative action is subject to control by judicial review”. These grounds are illegality, irrationality and procedural impropriety. While discussing susceptibility of administrative actions to judicial review and, in the process defining these grounds, the learned judge stated as follows:
“My Lords, I see no reason why simply because a decision-making power is derived from a common law and not a statutory source, it should for that reason only be immune from judicial review. Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call “illegality,” the second “irrationality” and the third “procedural impropriety.” That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of “proportionality” which is recognised in the administrative law of several of our fellow members of the European Economic Community; but to dispose of the instant case the three already well-established heads that I have mentioned will suffice.
By “illegality” as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.
By “irrationality” I mean what can by now be succinctly referred to as “Wednesbury unreasonableness” (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the court's exercise of this role, resort I think is today no longer needed to Viscount Radcliffe's ingenious explanation in Edwards v. Bairstow [1956] A.C. 14 of irrationality as a ground for a court's reversal of a decision by ascribing it to an inferred though unidentifiable mistake of law by the decision-maker. “Irrationality” by now can stand upon its own feet as an accepted ground on which a decision may be attacked by judicial review.
I have described the third head as “procedural impropriety” rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. But the instant case is not concerned with the proceedings of an administrative tribunal at all.”
34. These grounds of illegality, irrationality and procedural impropriety are ordinarily regarded as the traditional grounds for judicial review. In exercise of its discretion, a judicial review court will intervene and may grant the remedy for judicial review if any of them is proved to exist. But as Lord Diplock suggested, the list is by no means exhaustive. The learned judge hastened to say that further development of this area of law may yield further grounds on a case by case basis. It is in this spirit, the learned judge suggested, that the principle of proportionality as a further ground for judicial review has been developed. According to the Court of Appeal in Suchan Investment Limited versus Ministry of National Heritage & Culture & 3 Others (2016) Eklr, this principle was first adopted in R versus Home Secretary; ex parte, Daly (2001) 2 AC 532.
35. The applicant is concerned about the grounds of illegality and irrationality. Speaking of illegality, the question is whether the 1st respondent acted in excess of jurisdiction and, in particular, whether its decision is ultra vires the express provisions of the Public Procurement and Asset Disposal Act and the regulations made thereunder.
36. The applicant’s grievances which form the basis of this particular ground stem from the fact that despite the 4th respondent’s bid falling short of what was expressly prescribed in the tender document as mandatory requirements for a responsive tender, the respondent determined the bid to have met the threshold ostensibly because, in the respondent’s view, the omissions in the bid were negligible and that the 4th respondent either met or “largely” met the mandatory conditions.
37. The concept of mandatory requirements appears to be rooted in section 60 (1) and (2) as read with section 70(6) of the Act; section 60(1) and (2) of the of the Act states as follows:
60. Specific requirements
(1)An accounting officer of a procuring entity shall prepare specific requirements relating to the goods, works or services being procured that are clear, that give a correct and complete description of what is to be procured and that allow for fair and open competition among those who may wish to participate in the procurement proceedings.
(2) The specific requirements shall include all the procuring entity's technical requirements with respect to the goods, works or services being procured.
38. As far as specific technical requirements are concerned, subsection (3) provides finer details of what they entail; its states:
(3) The technical requirements shall, where appropriate—
(a) conform to design, specification, functionality and performance;
(b) be based on national or international standards whichever is superior;
(c) factor in the life of the item;
(d) factor in the socio-economic impact of the item;
(e) be environment-friendly;
(f) factor in the cost disposing the item; and
(g) factor in the cost of servicing and maintaining the item.
39. In subsection (4) (a) and (b), the accounting officer is cautioned against making reference to any particular trademark, name, patent, design, type, producer or service provider or to a specific origin in the technical requirements unless there is no other sufficiently precise or intelligible way of describing the requirements; and, the requirements allow equivalents to what is referred to.
Section 70 (6), on the other hand, reads as follows:
70 (6) The tender documents shall set out the following—
(a)the specific requirements prepared under section 60 relating to the goods, works or services being procured and the time limit for delivery or completion.
40. As the consumer of the goods or services for which a tender has been floated, the procuring entity stands in a better position to set the basic minimum standards required of the goods or services and the qualifications of the tenderers bidding to deliver the goods or services tendered for.
41. It is for this reason that under section 79 of the Act, a tender is considered responsive only if it meets eligibility requirements under section 55 of the Act and mandatory requirements specified in the tender documents. Except in those limited circumstances which the Act considers as “minor deviations that do not materially depart from the requirements set out in the tender documents; or errors or oversights that can be corrected without affecting the substance of the tender”, mandatory requirements are not negotiable.
42. For the avoidance of doubt, the procuring entity is prohibited from accepting any tender that falls short of the mandatory requirement. This is provided for under Regulation 75(1) of the Public Procurement and Asset Disposal Regulations, 2020 which is express that:
A procuring entity shall reject all tenders, which are not in conformity to the requirements of section 79 of the Act and regulation 74 of these Regulations.
43. Turning back to the subject tender, it is not in dispute that the procuring entity set forth in the tender document mandatory requirements by which all the identified tenderers, including the 4th respondent, were bound. Of particular relevance to this application are four requirements; these are:
(a) a valid or current tax compliance certificate or equivalent;
(b) a validity quality certificate for the manufacturing company
(c) disclosure of beneficial ownership of information on beneficial ownership of the bidder or tenderer
(d) Schedule of deviations from the specifications given in the tender document.
44. The requirement for a valid or current tax compliance certificate or its equivalent is found in clause 2.2 of the tender document under the heading “Preliminary examination for Determination of Responsiveness”. According to Clause 2.2(5) (ii) a “Valid/Current Tax Compliance Certificate or equivalent” is singled out as among the mandatory documents which a tenderer for the subject tender ought to have included in his bid submission.
45. In what the 4th respondent thought was compliance with this requirement, it submitted what was described in the impugned decision as a “certificate of paid taxes” issued by the Government of Finland. Nothing much turned on the description given to the certificate as such; the bone of contention is that the certificate was undated and, therefore, as much as it could be embraced as the equivalent of the local Tax Compliance Certificate, it was impossible to determine whether or not it was current, as at the time material to the tender period.
46. In its decision, the 1st respondent appreciated that the 4th respondent was foreign company- it was, in fact a Finnish company and the certificate it presented was issued by the “Finnish Tax Administration.” That notwithstanding, the respondent rightly held that the 4th respondent was not exempted from complying with the mandatory requirement of proof of payment of tax to the Finnish Government.
47. The certificate is said to have read in part as follows:
"This is to certify that the taxpayer has paid all their taxes, charges and other debts to the Tax Administrator as well as filed the required tax-related reports in the past 12 months."
48. But as noted, the certificate was not dated and, therefore, it was impossible to tell, on its face, the period or year the words “the past 12 months” referred to. The 1st respondent acknowledged this difficulty but still it was prepared to let the certificate pass notwithstanding this inadequacy. To this end, the 1st respondent held as follows:
“It is the Board's humble view that there is only one way to ascertain that the Certificate of Paid Taxes issued by the Finnish Tax Administration to the Applicant meets the threshold of the subject tender is to check with the Finish Tax Authorities. A legal avenue is provided for such fact finding under Section 83 of the Act on due diligence, which provision is also supported by ITT 37 of the tender document.
ITT 37 states as follows:
"The Procuring Entity shall determine, to its satisfaction, whether the eligible Tenderer that is selected as having submitted the lowest evaluated cost and substantially responsive Tender, meets the qualifying criteria specified in Section III, Evaluation and Qualification Criteria.”
49. Having come to this conclusion, the 1st respondent held, thus:
“85. Accordingly, the Board is convinced that the Procuring Entity did not have sufficient reason to disallow the Certificate of Paid Taxes submitted by the Applicant in fulfilment of the tender requirement on tax compliance. To that extent, the Board finds that the Procuring Entity applied a criterion outside the tender document.”
50. With due respect to the 1st respondent Board, due diligence is not an avenue in the procurement process to fill in the gaps or to make up for infractions in an otherwise non-responsive bid; neither is it meant to undercut bids that have made the cut as the lowest evaluated bids. Due diligence is a discretionary exercise undertaken after the evaluation but before the award is made for the purpose of the procuring entity satisfying itself that the successful bid has indeed met all the requirements for a successful bid. The relevant provision in this regard is section 83 of the Act which provides as follows:
83. Post-qualification
(1) An evaluation committee may, after tender evaluation, but prior to the award of the tender, conduct due diligence and present the report in writing to confirm and verify the qualifications of the tenderer who submitted the lowest evaluated responsive tender to be awarded the contract in accordance with this Act.
(2) The conduct of due diligence under subsection (1) may include obtaining confidential references from persons with whom the tenderer has had prior engagement.
(3) To acknowledge that the report is a true reflection of the proceedings held, each member who was part of the due diligence
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