1. The Petitioners in this petition describe themselves as “law-abiding citizens of Kenya, public-spirited individuals, and human rights defenders and that “they bring this Petition in the public interest under the Constitution of Kenya, 2010, seeking to uphold the rule of law, protect public resources, and enforce constitutional values and principles in public procurement and public finance management.”
2. They have mainly sought orders of certiorari, prohibition and mandamus. They have also sought several declarations. In particular, the prayers for these orders have been framed as follows:
“(a) A DECLARATION that the 1st and 2nd Respondents’ decision and action to initiate and conduct Tender No. KPA/039/2025-26/ES: Supply, Testing, and Commissioning of Fourteen (14) New Reachstackers through restricted tendering, when the approved procurement plan designates open tendering, is unconstitutional, unlawful, null and void for violating Articles 10(2), 47, 201, and 227(1) of the Constitution and Sections 53, 68, and 91 of the Public Procurement and Asset Disposal Act, 2015.
(b) A DECLARATION that the 1st and 2nd Respondents’ decision and action to initiate and conduct Tender No. KPA/053/2025-26/CCE: Supply, Testing and Commissioning of Fifteen (15) New Forklift Trucks through restricted tendering, with quantities and items that grossly depart from the approved procurement plan, is unconstitutional, unlawful, null and void for violating Articles 10(2), 47, 201, and 227(1) of the Constitution and Sections 45, 53, 68, and 91 of the Public Procurement and Asset Disposal Act, 2015.
(c) A DECLARATION that the 1st and 2nd Respondents’ decision and action to initiate and conduct Tender No. KPA/036/2025-26/ES: Supply, Testing, and Commissioning of Forty-Eight (48) Terminal Tractors through restricted tendering, with quantities and items that grossly depart from the approved procurement plan, is unconstitutional, unlawful, null and void for violating Articles 10(2), 47, 201, and 227(1) of the Constitution and Sections 45, 53, 68, and 91 of the Public Procurement and Asset Disposal Act, 2015.
(d) A DECLARATION that the unilateral alteration of the procurement method from open to restricted tender, in departure from the published plan, violates the doctrine of legitimate expectation and the right to fair administrative action under Article 47 of the Constitution and Sections 4 and 7 of the Fair Administrative Action Act, 2015.
(e) A DECLARATION that the procurement of items and quantities not contained in the approved procurement plan and beyond the approved budget contravenes Section 53 of the PPADA as read with Section 45(3) of the PPADA and Rules 41 and 42 of the Regulations.
(f) A DECLARATION that the 2nd Respondent, as the accounting officer who directed and approved the use of public funds for the impugned tenders contrary to the express instructions in the budget approval letter and the provisions of the Public Procurement and Asset Disposal Act, 2015, is personally liable for any loss arising from such use and shall make good the loss pursuant to Article 226(5) of the Constitution.
(g) A DECLARATION that the 1st and 2nd Respondents have violated Article 232(1)(b) and (e) of the Constitution by failing to account for their administrative acts and by failing to ensure efficient, effective, and economic use of public resources in the impugned tenders.
(h) A DECLARATION that the 1st and 2nd Respondents have violated Article 10(2)(c) of the Constitution by acting contrary to the national values and principles of good governance, integrity, transparency, and accountability.
(i) A DECLARATION that the 1st and 2nd respondents have contravened Section 7(2)(k) of the Fair Administrative Action Act, 2015 by defeating the legitimate expectation of the Petitioners and the public.
(j) AN ORDER OF CERTIORARI bringing into this Honourable Court for purposes of being quashed the entire procurement proceedings in Tender No. KPA/039/2025-26/ES; Tender No. KPA/053/2025-26/CCE and Tender No. KPA/036/2025-26/ES.
(k) AN ORDER OF PROHIBITION restraining the 1st and 2nd Respondents, their agents, servants, or officers acting under their direction or authority, from proceeding with, concluding, awarding, or entering into any contract arising from the said impugned Tender No. KPA/039/2025-26/ES; Tender No. KPA/053/2025-26/CCE and Tender No. KPA/036/2025-26/ES.
(l) AN ORDER OF MANDAMUS compelling the 1st and 2nd Respondents to conduct the procurement of the items subject of the impugned Tender No. KPA/039/2025-26/ES; Tender No. KPA/053/2025-26/CCE and Tender No. KPA/036/2025-26/ES strictly through open tendering in accordance with Section 68 of the PPADA and as designated in the approved procurement plan.
(m) AN ORDER OF MANDAMUS compelling the 3rd Respondent (PPRA) to conduct a full investigation into the 1st Respondent’s procurement practices in respect of the impugned Tender No. KPA/039/2025-26/ES; Tender No. KPA/053/2025-26/CCE and Tender No. KPA/036/2025-26/ES and to take appropriate regulatory and enforcement action against the officers responsible for the breaches.
(n) AN ORDER OF PROHIBITION restraining the 1st and 2nd Respondents from making any payment in respect of the specific impugned procurements until they demonstrate full compliance with the PPADA and the Constitution.
(o) AN ORDER OF PROHIBITION restraining the 4th Respondent (National Treasury) from making any budgetary disbursements to the 1st Respondent in respect of the specific impugned procurements until full compliance with the PPADA and the Constitution is demonstrated.”
The petitioners have also sought for the costs of the petition.
3. Alongside the petition, the petitioners filed a motion for conservatory orders suspending the procurement process pending the hearing and determination of the petition; they also sought for a conservatory order restraining the 4th Respondent from making any budgetary disbursements to the 1st Respondent in respect of the specific impugned procurements until the respondents have full complied with the Public Procurement and Asset Disposal Act, 2015 and the Constitution.
4. In an affidavit sworn by the 1st petitioner in support of the motion, they have sworn that the petitioners state that they are aware that the 1st Respondent prepared and published its Annual Procurement Plan (also known as “CAPEX”) for the Financial Year 2025/2026 pursuant to Section 53 of the Public Procurement and Asset Disposal Act, 2015 and Rule 42 of the Public Procurement and Asset Disposal Regulations, 2020.
5. Contrary to the Procurement Plan, the 1st Respondent floated Tender No. KPA/039/2025-26/ES for the Supply, Testing and Commissioning of Fourteen (14) New Reachstackers through restricted tendering, when the approved procurement plan designates open tendering for only 5 reachstackers at an estimated cost of Kshs. 80,000,000. The impugned tender seeks 14 reachstackers – a quantity 180% in excess of the planned quantity and at a cost far exceeding the approved budget.
6. Besides the tender for reachstackers, the 1st Respondent also floated Tender No. KPA/053/2025-26/CCE for the Supply, Testing and Commissioning of Fifteen (15) New Forklift Trucks through restricted tendering, of which only 1 No. 3-Ton Forklift conforms to the approved procurement plan in both description and procurement method. The remaining 14 units constitute items not in the plan or items designated for open tender that have been unlawfully switched to restricted tender.
7. The 1st Respondent further floated Tender No. KPA/036/2025-26/ES for the Supply, Testing, and Commissioning of Forty-Eight (48) Terminal Tractors through restricted tendering, when the approved procurement plan designates open tendering for only 30 terminal tractors at an estimated cost of Kshs. 250,000,000. The impugned tender seeks 48 terminal tractors – a quantity 60% in excess of the planned quantity at a cost that quadruples the approved budget to Kshs. 1,114,358,056.
8. According to the petitioners, the reachstackers, forklift trucks and terminal tractors of all capacities are standard port-handling and industrial equipment manufactured and supplied by multiple global manufacturers including Kalmar, Liebherr, Hyster, Sany, XCMG, Toyota, Mitsubishi, Linde, Caterpillar, Mol CY, Terberg, and Sino Truck, among others, with extensive authorized dealer networks in Kenya and East Africa. It is therefore their case that there is no basis for the 1st Respondent to claim that the statutory preconditions for restricted tendering under Section 102 of the Act are satisfied.
9. The petitioners claim that the 1st and 2nd Respondents’ decision to alter the procurement method from open tender to restricted tender, in departure from the published procurement plan, contravenes Article 227(1) of the Constitution which mandates fair, equitable, transparent, competitive and cost-effective procurement, and defeats the legitimate expectation of the public and potential bidders.
10. At the time they filed the petition, the said restricted tender processes were at an advanced stage and, and therefore, the petitioners were apprehensive that unless this Honourable Court urgently intervened, the 1st and 2nd Respondents were likely to evaluate bids, award contracts and commit public funds amounting to hundreds of millions of Kenya Shillings in an unconstitutional and unlawful manner before the Petition herein can be heard and determined.
11. Thus, the petitioners swear that unless the Honourable Court intervenes, the Petitioners’ right to access justice will be violated as the subject of the Petition before this Court will be defeated, and the public confidence in the rule of law and the Court’s authority will be gravely undermined.
12. Responding to the motion, the respondents filed a preliminary objection in which they have pleaded that the issues raised regarding the violation of the 1st Respondent's Procurement Plan for the Financial Year 2025/26 and the budget as alleged in the Petitioners' Notice of Motion dated 18th March 2026 and the Petition of even date are matters governed under the Public Procurement and Asset Disposal Act 2015, (hereafter also referred to as “the Act”) which matters are required to be addressed and or resolved under dispute resolution mechanisms provided under the Act in particular sections 35, 36, 37 and 38 of the Act and, therefore, this Honourable Court lacks requisite jurisdiction to entertain the petitioners petition.
13. The 1st and 2nd respondents have also pleaded that the issue of discrimination, fairness, competitiveness and cost efficiency are matters provided under the Act which issues can be resolved through statutory interpretation, common law, or other legal avenues as such the Petition herein violates the doctrine of constitutional avoidance as affirmed by the Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others (20141 KESC 53 (KLR).
14. Finally, it is contended on behalf of the respondents that there are other parallel proceedings filed earlier before the Public Procurement Administrative Review Board in Applications No. 32, 42 and 43 of 2026 and, therefore, the petition is sub judice.
15. The 1st and 2nd respondents also filed a replying affidavit to the application. The affidavit has been sworn by Mr. Daniel M. Amuyunzu who has introduced himself as the Principal Supply Chain Officer of the Kenya Ports Authority.
16. Mr Amuyunzu has sworn that the 1st Respondent is a state corporation established under Section 3 of the Kenya Ports Authority Act, Cap. 391, as a body corporate with perpetual succession and a common seal, with powers to sue and be sued in its corporate name. Its mandate is to manage and operate the Port of Mombasa and all scheduled ports along Kenya's coastline and inland waterways, including Lamu Port, Malindi, Kilifi, Kiungu, Shimoni, Vanga, and Kisumu Port. The 2nd respondent, on the other hand, is the Managing Director of the 1st Respondent and is responsible for the overall management and performance of the Authority. For purposes of the Public Procurement and Asset Disposal Act and the Public Finance Management Act, the 2nd respondent is the 1st respondent’s Accounting Officer.
17. It is true, according to Mr Amuyunzu, that the 1st Respondent published Notices of Intention to procure critical port operations equipment through three tenders, namely Tender No. KPA/036/2025-26/ES: Supply, Testing, and Commissioning of Forty-Eight (48) Terminal Tractors, Tender No. KPA/039/2025-26/ES: Supply, Testing and Commissioning of Fourteen (14) New Reachstackers and Tender No. KPA/053/2025-26/CCE: Supply, Testing and Commissioning of Fifteen (15) New Forklift Trucks. The Publications were made on both the 1st Respondent's Website and the Government's Public Procurement Information Portal (PPIP), inviting any interested equipment manufacturer to participate.
18. Mr Amuyunzu has also sworn that as at the time of filing this suit, there were proceedings commenced pursuant to Section 167 of the THE ACT before the Public Procurement Administrative Review Board (PPARB) in Application No. 32 of 2026 in respect of Tender No. KPA/036/2025-26/ES, Application No. 42 of 2026 in respect of Tender No. KPA/039/2025-26/ES and Application No. 43 of 2026 in respect of Tender No. KPA/053/2025-26/CCE was filed earlier in February and March 2026, challenging the outcome of the three tenders that are the subject of these proceedings. In these circumstances, it is sworn that it was undesirable to have this Honourable Court and the Public Procurement Administrative Review Board adjudicating over the same matters simultaneously.
19. It has also been sworn on behalf of the 1st and 2nd respondents that the complaints by the Petitioners are matters governed under the Public Procurement and Asset Disposal Act and the Public Management Finance Act, and thus the petition ought to have been filed as an ordinary suit and not as a constitutional petition.
20. The Kenya Ports Authority is said to be experiencing “unprecedented growth of business” where volumes of cargo shipped via the Ports of Mombasa and Lamu are on track to surpass the projected annual cargo throughput. There is a steady 20% increase across the board, which will see the annual cargo throughput surpass the current average of 2.5 million by a larger margin. It is further sworn that the current growth in business and the unprecedented increase in cargo volumes are attributed to factors such as improved Port operational efficiency, streamlined cargo clearance services, and the expansion of Port facilities in Kenya, among others.
21. Further, Kenyan Ports are also said to be facing intensified competition from other ports along the East African coastline and as such, strategic investment in the Ports and Port facilities aimed at achieving efficiency is necessary in order to secure Kenyan Ports as the primary and most preferred gateway and exit point for cargo belonging to a vast hinterland and transit market that include Uganda, Rwanda, Burundi, Democratic Republic of Congo, Tanzania, South Sudan and Ethiopia.
22. The port equipment subject to the three tenders is integral to the Authority's modernisation programs aimed at enhancing operational efficiency in the Ports and the Inland Container Depots, increasing container throughput and reducing ship turnaround time.
23. The Authority's user department, through an Internal Memo dated 3 December 2025, indicated that the fleet of Reachstakers operating within the Kenyan Ports includes Sany, Hyster, ZPMC and Kalmar, which are from internationally reputable equipment manufacturers with notable presence in several ports and container handling facilities.
24. The performance evaluation of the existing Reachstakers reveals value for money because of superior technical features and reliable local dealer support, and the Authority's technical staff possesses vast experience and skills in functionalities, troubleshooting and maintenance of the said container handling equipment.
25. Against this background, it is sworn that it was recommended that the procurement for the new Reachstakers be restricted to manufacturers whose equipment already operates at the Port of Mombasa and the Wand Container Depots and have strong local dealer support due to the following advantages;
(a) Interchangeability of spare parts reduces costs on stockholding, administration, cataloguing and binning.
(b) The interchangeability of major parts such as engines, hydraulics, pneumatics and electronics results in standardisation and ultimately reduction of costs, considering that the 1st Respondent has already invested in some parts, and this lowers costs, considering the same parts and tools are used on the new equipment.
(c) The 1st Respondent has heavily invested in training engineers on the existing equipment brands, enabling m-house repairs even during the warrant period, thereby minimising downtime, unlike the introduction of new brands, which would require increased costs and longer equipment downtime.
(d) The existing Reachstakers brands are tried and tested, and the 1st Respondent's engineers and operators are familiar with the areas where improvements can be made via specifications as opposed to totally new equipment improvement whose operation and performance may not be familiar.
(e) A new brand of equipment will force the 1st Respondent to extensively train the operators, unlike the existing brands, where the operators will undergo minimal training, which mostly consists of familiarisation.
26. The General Manager, Supply Chain Management, sought approval to procure through Restricted Tendering from the Managing Director vide a Memo dated 23 December, 2025, which the Managing Director approved.
27. Following the approval by the Managing Director to procure through Restricted Tendering, the 1st Respondent in compliance with the provisions of section 102 (1) (c ) and (d) of the Act and Regulation 89 (8) of the Public Procurement and Asset Disposal Regulations 2020 published openly a notice of Intention to Procure Through Restricted Tender on its website and the Public Procurement Information Portal (PPIP) giving the reasons for the choice of the method and inviting any interested equipment manufacturer to participate in the tender, which advertisement meets the threshold of openness and transparency required by law.
28. Mr. Amuyunzu has sworn that he is aware that Regulation 89(8) of Public Procurement and Asset Disposal Rules that where any bidder outside the known suppliers emerges, the bidder is required to be invited to bid and, as such the allegation of discrimination would have no basis whatsoever.
29. The 1st Respondent invited M/s Sany Marine Heavy Industry Company Limited, M/ s Shanghai Port Machinery Heavy Industries Co. Ltd, M/ s Kalma Global and M/ s Hyster Yale Group (Hyster Europe) for tendering and that the said companies submitted their respective bids.
30. The bids were opened on 11th February, 2026 and upon evaluation of all the bids received, the Evaluation Committee recommended the award of Tender No. KPA/039/2025-26/ES: Supply, Testing and Commissioning of Fourteen (14) New Reachstackers at the evaluated price of USD.7,314,142.00 CIF Mombasa with a total delivery period of 32 weeks from the date of the Local Purchase Order.
31. All the bidders were notified of the outcomes of the tendering process, and as required vide letter dated 3 March, 2026, the successful bidder has since submitted their acceptance letter to the 1st Respondent vide letter dated 6 March, 2026. The award of the tender was, however, challenged by one bidder Kalmar, at the Public Procurement Administrative Review Board in Application No 42 of 2026. 24.
32. As far as Tender No. KPA/036/2025-26/ES: Supply, Testing, and Commissioning of Forty-Eight (48) Terminal Tractors concerns the Authority used a similar approval process and documents as the Reachstakers. With respect to the procurement of the Terminal Tractors under Tender No. KPA/036/2025-26/ES, Mr Amuyunzu has sworn that: -
(a) The procurement plan for the year 2022/23 provided for the procurement of five (5) units of Terminal Tractors, which were not procured, and the budgeted amount was rolled over.
(b) The procurement plan for 2024/25 provided for the procurement of thirteen (13) units of Terminal Tractors, which were not procured, and the budget was rolled over.
(c) The procurement plan for the year 2025/26 provided for the procurement of Thirty {30) units of Terminal Tractors.
(d) The total units of Terminal Tractors based on approved procurement plans for the years 2022/23, 2024/25 and 2025/26 are Forty-Eight (48) and therefore the allegations by the Applicants are alleged to be misleading.
33. As a result of the award for this tender, proceedings were commenced before the Public Procurement Administrative Review Board in case No. 32 of 2026.
34. As for Tender No. KPA/053/2025-26/CCE dealing with the Supply, Testing and Commissioning of Fifteen (15) New Forklift Trucks, I wish to state that the decision by the 1st Respondent to adopt Restricted Tendering was guided by the fact that the 1st Respondent currently operates Forklift Trucks of the XGMA, SMV Konecranes, Hyster and Kalmar brands which brands are widely used and well established in ports and container terminals.
35. The said brands have consistently served the 1st Respondent reliably, and their spare parts and maintenance tools are readily available on the market, and the advantages of using these brands are the same as those of using Reachstakers.
36. On the question of reachstackers to be procured, Mr Amuyunzu has sworn that:
(a) The procurement plan for the FY 2024/25 provided for the procurement of Eleven (11) Forklifts, which were not procured due to some challenges; however, the budget was rolled over.
(b) The procurement plan for the FY 2025/ 26 provided for the procurement of four (4) Forklifts.
(c) The cumulative units as per the 2024/25 and 2025/26 procurement plans are fifteen (15) Forklifts.
37. According to the provisions of Section 102 of the Act, the invitation to use Restricted Tender was published openly on the 1st Respondent's website and the Government public procurement information portal.
38. The advertisement drew the interest of one additional equipment manufacturer who expressed interest in being allowed to compete with the manufacturers of the current fleet of Forklifts owned and operated by the1st Respondent. Therefore, the original equipment manufacturers invited to submit tenders include M/S Xiamen XGMA Machinery Co. Ltd, M/S Konecranes Liftrucks AB, M/S Hyster Yale Group (Hyster Europe), M/S Fuji South China Heavy Machinery Manufactures Co. Ltd, and Kalmar Global.
39. Five bidders responded, and the bids were opened on 4th February, 2026, and it was noted that whereas some OEMS submitted bids directly, others participated through their duly appointed and authorised local agents.
40. Upon comprehensive evaluation of the bids received, the Evaluation Committee recommended the award of the tender as follows:-
(a) Lot1: Nine (9) New Forklift Trucks to M/ s Brookwood Technical Trading Co. Ltd at a total quoted price of USD.2,801,798.99 OPP with a completion period of six months.
(b) Lot Six (6) New Forklifts to M/ s Autobikes Limited at their total quoted price of USD.721,306.52 DPP with a completion period of six (6) months.
41. The bidders were notified of the tendering process as required, and the two successful bidders submitted their acceptance letters to the 1st Respondent dated 8th and 9th March, 2026, respectively. As a result of the award, proceedings have been commenced before the Public Procurement Administrative Review Board in case No. 43 of 2026.
42. Mr Amuyunzu has reiterated that the decision to procure all the units, including those that had previously been pre-planned in the previous procurement plans, is due to the unprecedented increase in vessel traffic for the Lamu Port and the unprecedented increase in cargo volumes at the Mombasa Port. These are business dynamics that require urgent capital investments in equipment to ensure efficient cargo handling and port operations, which not only enhance ship turnaround time to the benefit of maritime traders but also ensure safe cargo handling, thus positioning the Kenyan Ports as world-class ports of choice.
43. By their very nature, public procurement planning and budgeting are dynamic, informed by various factors that determine prioritisation and allocation of funds by the Government. Most of the equipment procurement plans had been included in previously approved procurement plans, for instance, but were rolled over to subsequent years. The failure to procure certain equipment and other planned items in previous financial years under the approved Procurement Plans is often due to Government decisions and priorities.
44. The unprecedented increase in volume at Kenyan ports is information in the public domain. The growth in business calls for the re-evaluation and re-arrangement of resources to ensure a commensurate cargo-handling capacity. In a Port operations setup, these dynamics dictate changes in the prioritisation, necessity, importance, and urgency of procurement, bearing in mind that the procurement of various equipment, like other capital investments, often takes time and ultimately spans multiple financial years.
45. It is as a result of these reasons, among other reasons, that the Government budget system has put in place mechanisms to ensure that funds are not hoarded at any given time, and budgets are also available for roll-over to subsequent financial years depending on the nature of procurement. The 1st Respondent, being a state corporation under the National Government, retains the authority to manage the funds allocated to it by the Government between existing budget line items or accounts within the organisation and, in that regard, to ensure proper financial management to enable budget flexibility within the approvals granted to it by the Government.
46. According to the respondents, considering the lead time in manufacturing processes, payment to contractors is best done only in milestones that, in most cases, cut across more than one or multiple financial years. In any event, it is not open for the 1st Respondent to spend public money outside the approved budget. Thus, the Applicants' allegation of wastage of public resources is totally unfounded.
47. Directions were taken that both the application and the preliminary objection would be disposed of together on the understanding that the court would proceed and consider the petitioners’ application on the merits if the 1st and 2nd respondents are overruled on their preliminary objection. If, on the other hand, the respondents’ position carries the day and their objection is upheld, it would be unnecessary to delve further into the application as well as the petition itself. It is inevitable that the court should consider the preliminary objection first.
48. I gather from the preliminary objection that it is two-pronged; firstly, that the dispute presented as a constitutional petition ought to have been filed as an ordinary suit in accordance with the provisions of the Public Procurement and Asset Disposal Act. Secondly, at the time material to the petition, the suit was sub judice, having been filed after several applications challenging either the award of the tenders or the procurement process leading to the award had been filed before the Public Procurement Administrative Review Board. An affirmative answer to any of these questions would determine the petition in limine.
49. The facts material to the determination of the preliminary objection are not in dispute. It is not in dispute that the 1st respondent floated several tenders for the procurement of certain equipment that, according to the 1st respondent, are necessary for its operations and for delivering on its mandate as a specialised public entity. The tenders have been identified as Tender No. KPA/039/2025-26/ES: Supply, Testing and Commissioning of Fourteen (14) New Reachstackers; Tender No. KPA/036/2025-26/ES: Supply, Testing, and Commissioning of Forty-Eight (48) Terminal Tractors; and Tender No. KPA/053/2025-26/CCE for the Supply, Testing and Commissioning of Fifteen (15) New Forklift Trucks.
50. It is also not in dispute that following the award of the tenders, applications or requests for review were filed before the Public Procurement Administrative Review Board challenging the decision of the 1st respondent. These applications are Application No 42 of 2026 in respect of Tender No. KPA/039/2025-26/ES: Supply, Testing and Commissioning of Fourteen (14) New Reachstackers; application no. No. 32 of 2026 in respect of Tender No. KPA/036/2025-26/ES: Supply, Testing, and Commissioning of Forty-Eight (48) Terminal Tractors; and application no. 43 of 2026 with regard to the award of Tender No. KPA/053/2025-26/CCE for the Supply, Testing and Commissioning of Fifteen (15) New Forklift Trucks.
51. At the hearing of the petitioners’ application, it emerged that the Public Procurement Administrative Review Board had made its determination on all three applications and dissatisfied parties had escalated the disputes to this Honourable Court by way of judicial review applications.
52. The legislature foresaw this sort of dispute arising out of public procurement and disposal of assets by public entities and, therefore, in enacting the Public Procurement and Asset Disposal Act, it made provisions for dispute resolution mechanisms. According to the legislative scheme, a person aggrieved by what he believes is a breach of a statutory duty by a procuring entity in the procurement process is entitled to
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2. They have mainly sought orders of certiorari, prohibition and mandamus. They have also sought several declarations. In particular, the prayers for these orders have been framed as follows:
“(a) A DECLARATION that the 1st and 2nd Respondents’ decision and action to initiate and conduct Tender No. KPA/039/2025-26/ES: Supply, Testing, and Commissioning of Fourteen (14) New Reachstackers through restricted tendering, when the approved procurement plan designates open tendering, is unconstitutional, unlawful, null and void for violating Articles 10(2), 47, 201, and 227(1) of the Constitution and Sections 53, 68, and 91 of the Public Procurement and Asset Disposal Act, 2015.
(b) A DECLARATION that the 1st and 2nd Respondents’ decision and action to initiate and conduct Tender No. KPA/053/2025-26/CCE: Supply, Testing and Commissioning of Fifteen (15) New Forklift Trucks through restricted tendering, with quantities and items that grossly depart from the approved procurement plan, is unconstitutional, unlawful, null and void for violating Articles 10(2), 47, 201, and 227(1) of the Constitution and Sections 45, 53, 68, and 91 of the Public Procurement and Asset Disposal Act, 2015.
(c) A DECLARATION that the 1st and 2nd Respondents’ decision and action to initiate and conduct Tender No. KPA/036/2025-26/ES: Supply, Testing, and Commissioning of Forty-Eight (48) Terminal Tractors through restricted tendering, with quantities and items that grossly depart from the approved procurement plan, is unconstitutional, unlawful, null and void for violating Articles 10(2), 47, 201, and 227(1) of the Constitution and Sections 45, 53, 68, and 91 of the Public Procurement and Asset Disposal Act, 2015.
(d) A DECLARATION that the unilateral alteration of the procurement method from open to restricted tender, in departure from the published plan, violates the doctrine of legitimate expectation and the right to fair administrative action under Article 47 of the Constitution and Sections 4 and 7 of the Fair Administrative Action Act, 2015.
(e) A DECLARATION that the procurement of items and quantities not contained in the approved procurement plan and beyond the approved budget contravenes Section 53 of the PPADA as read with Section 45(3) of the PPADA and Rules 41 and 42 of the Regulations.
(f) A DECLARATION that the 2nd Respondent, as the accounting officer who directed and approved the use of public funds for the impugned tenders contrary to the express instructions in the budget approval letter and the provisions of the Public Procurement and Asset Disposal Act, 2015, is personally liable for any loss arising from such use and shall make good the loss pursuant to Article 226(5) of the Constitution.
(g) A DECLARATION that the 1st and 2nd Respondents have violated Article 232(1)(b) and (e) of the Constitution by failing to account for their administrative acts and by failing to ensure efficient, effective, and economic use of public resources in the impugned tenders.
(h) A DECLARATION that the 1st and 2nd Respondents have violated Article 10(2)(c) of the Constitution by acting contrary to the national values and principles of good governance, integrity, transparency, and accountability.
(i) A DECLARATION that the 1st and 2nd respondents have contravened Section 7(2)(k) of the Fair Administrative Action Act, 2015 by defeating the legitimate expectation of the Petitioners and the public.
(j) AN ORDER OF CERTIORARI bringing into this Honourable Court for purposes of being quashed the entire procurement proceedings in Tender No. KPA/039/2025-26/ES; Tender No. KPA/053/2025-26/CCE and Tender No. KPA/036/2025-26/ES.
(k) AN ORDER OF PROHIBITION restraining the 1st and 2nd Respondents, their agents, servants, or officers acting under their direction or authority, from proceeding with, concluding, awarding, or entering into any contract arising from the said impugned Tender No. KPA/039/2025-26/ES; Tender No. KPA/053/2025-26/CCE and Tender No. KPA/036/2025-26/ES.
(l) AN ORDER OF MANDAMUS compelling the 1st and 2nd Respondents to conduct the procurement of the items subject of the impugned Tender No. KPA/039/2025-26/ES; Tender No. KPA/053/2025-26/CCE and Tender No. KPA/036/2025-26/ES strictly through open tendering in accordance with Section 68 of the PPADA and as designated in the approved procurement plan.
(m) AN ORDER OF MANDAMUS compelling the 3rd Respondent (PPRA) to conduct a full investigation into the 1st Respondent’s procurement practices in respect of the impugned Tender No. KPA/039/2025-26/ES; Tender No. KPA/053/2025-26/CCE and Tender No. KPA/036/2025-26/ES and to take appropriate regulatory and enforcement action against the officers responsible for the breaches.
(n) AN ORDER OF PROHIBITION restraining the 1st and 2nd Respondents from making any payment in respect of the specific impugned procurements until they demonstrate full compliance with the PPADA and the Constitution.
(o) AN ORDER OF PROHIBITION restraining the 4th Respondent (National Treasury) from making any budgetary disbursements to the 1st Respondent in respect of the specific impugned procurements until full compliance with the PPADA and the Constitution is demonstrated.”
The petitioners have also sought for the costs of the petition.
3. Alongside the petition, the petitioners filed a motion for conservatory orders suspending the procurement process pending the hearing and determination of the petition; they also sought for a conservatory order restraining the 4th Respondent from making any budgetary disbursements to the 1st Respondent in respect of the specific impugned procurements until the respondents have full complied with the Public Procurement and Asset Disposal Act, 2015 and the Constitution.
4. In an affidavit sworn by the 1st petitioner in support of the motion, they have sworn that the petitioners state that they are aware that the 1st Respondent prepared and published its Annual Procurement Plan (also known as “CAPEX”) for the Financial Year 2025/2026 pursuant to Section 53 of the Public Procurement and Asset Disposal Act, 2015 and Rule 42 of the Public Procurement and Asset Disposal Regulations, 2020.
5. Contrary to the Procurement Plan, the 1st Respondent floated Tender No. KPA/039/2025-26/ES for the Supply, Testing and Commissioning of Fourteen (14) New Reachstackers through restricted tendering, when the approved procurement plan designates open tendering for only 5 reachstackers at an estimated cost of Kshs. 80,000,000. The impugned tender seeks 14 reachstackers – a quantity 180% in excess of the planned quantity and at a cost far exceeding the approved budget.
6. Besides the tender for reachstackers, the 1st Respondent also floated Tender No. KPA/053/2025-26/CCE for the Supply, Testing and Commissioning of Fifteen (15) New Forklift Trucks through restricted tendering, of which only 1 No. 3-Ton Forklift conforms to the approved procurement plan in both description and procurement method. The remaining 14 units constitute items not in the plan or items designated for open tender that have been unlawfully switched to restricted tender.
7. The 1st Respondent further floated Tender No. KPA/036/2025-26/ES for the Supply, Testing, and Commissioning of Forty-Eight (48) Terminal Tractors through restricted tendering, when the approved procurement plan designates open tendering for only 30 terminal tractors at an estimated cost of Kshs. 250,000,000. The impugned tender seeks 48 terminal tractors – a quantity 60% in excess of the planned quantity at a cost that quadruples the approved budget to Kshs. 1,114,358,056.
8. According to the petitioners, the reachstackers, forklift trucks and terminal tractors of all capacities are standard port-handling and industrial equipment manufactured and supplied by multiple global manufacturers including Kalmar, Liebherr, Hyster, Sany, XCMG, Toyota, Mitsubishi, Linde, Caterpillar, Mol CY, Terberg, and Sino Truck, among others, with extensive authorized dealer networks in Kenya and East Africa. It is therefore their case that there is no basis for the 1st Respondent to claim that the statutory preconditions for restricted tendering under Section 102 of the Act are satisfied.
9. The petitioners claim that the 1st and 2nd Respondents’ decision to alter the procurement method from open tender to restricted tender, in departure from the published procurement plan, contravenes Article 227(1) of the Constitution which mandates fair, equitable, transparent, competitive and cost-effective procurement, and defeats the legitimate expectation of the public and potential bidders.
10. At the time they filed the petition, the said restricted tender processes were at an advanced stage and, and therefore, the petitioners were apprehensive that unless this Honourable Court urgently intervened, the 1st and 2nd Respondents were likely to evaluate bids, award contracts and commit public funds amounting to hundreds of millions of Kenya Shillings in an unconstitutional and unlawful manner before the Petition herein can be heard and determined.
11. Thus, the petitioners swear that unless the Honourable Court intervenes, the Petitioners’ right to access justice will be violated as the subject of the Petition before this Court will be defeated, and the public confidence in the rule of law and the Court’s authority will be gravely undermined.
12. Responding to the motion, the respondents filed a preliminary objection in which they have pleaded that the issues raised regarding the violation of the 1st Respondent's Procurement Plan for the Financial Year 2025/26 and the budget as alleged in the Petitioners' Notice of Motion dated 18th March 2026 and the Petition of even date are matters governed under the Public Procurement and Asset Disposal Act 2015, (hereafter also referred to as “the Act”) which matters are required to be addressed and or resolved under dispute resolution mechanisms provided under the Act in particular sections 35, 36, 37 and 38 of the Act and, therefore, this Honourable Court lacks requisite jurisdiction to entertain the petitioners petition.
13. The 1st and 2nd respondents have also pleaded that the issue of discrimination, fairness, competitiveness and cost efficiency are matters provided under the Act which issues can be resolved through statutory interpretation, common law, or other legal avenues as such the Petition herein violates the doctrine of constitutional avoidance as affirmed by the Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others (20141 KESC 53 (KLR).
14. Finally, it is contended on behalf of the respondents that there are other parallel proceedings filed earlier before the Public Procurement Administrative Review Board in Applications No. 32, 42 and 43 of 2026 and, therefore, the petition is sub judice.
15. The 1st and 2nd respondents also filed a replying affidavit to the application. The affidavit has been sworn by Mr. Daniel M. Amuyunzu who has introduced himself as the Principal Supply Chain Officer of the Kenya Ports Authority.
16. Mr Amuyunzu has sworn that the 1st Respondent is a state corporation established under Section 3 of the Kenya Ports Authority Act, Cap. 391, as a body corporate with perpetual succession and a common seal, with powers to sue and be sued in its corporate name. Its mandate is to manage and operate the Port of Mombasa and all scheduled ports along Kenya's coastline and inland waterways, including Lamu Port, Malindi, Kilifi, Kiungu, Shimoni, Vanga, and Kisumu Port. The 2nd respondent, on the other hand, is the Managing Director of the 1st Respondent and is responsible for the overall management and performance of the Authority. For purposes of the Public Procurement and Asset Disposal Act and the Public Finance Management Act, the 2nd respondent is the 1st respondent’s Accounting Officer.
17. It is true, according to Mr Amuyunzu, that the 1st Respondent published Notices of Intention to procure critical port operations equipment through three tenders, namely Tender No. KPA/036/2025-26/ES: Supply, Testing, and Commissioning of Forty-Eight (48) Terminal Tractors, Tender No. KPA/039/2025-26/ES: Supply, Testing and Commissioning of Fourteen (14) New Reachstackers and Tender No. KPA/053/2025-26/CCE: Supply, Testing and Commissioning of Fifteen (15) New Forklift Trucks. The Publications were made on both the 1st Respondent's Website and the Government's Public Procurement Information Portal (PPIP), inviting any interested equipment manufacturer to participate.
18. Mr Amuyunzu has also sworn that as at the time of filing this suit, there were proceedings commenced pursuant to Section 167 of the THE ACT before the Public Procurement Administrative Review Board (PPARB) in Application No. 32 of 2026 in respect of Tender No. KPA/036/2025-26/ES, Application No. 42 of 2026 in respect of Tender No. KPA/039/2025-26/ES and Application No. 43 of 2026 in respect of Tender No. KPA/053/2025-26/CCE was filed earlier in February and March 2026, challenging the outcome of the three tenders that are the subject of these proceedings. In these circumstances, it is sworn that it was undesirable to have this Honourable Court and the Public Procurement Administrative Review Board adjudicating over the same matters simultaneously.
19. It has also been sworn on behalf of the 1st and 2nd respondents that the complaints by the Petitioners are matters governed under the Public Procurement and Asset Disposal Act and the Public Management Finance Act, and thus the petition ought to have been filed as an ordinary suit and not as a constitutional petition.
20. The Kenya Ports Authority is said to be experiencing “unprecedented growth of business” where volumes of cargo shipped via the Ports of Mombasa and Lamu are on track to surpass the projected annual cargo throughput. There is a steady 20% increase across the board, which will see the annual cargo throughput surpass the current average of 2.5 million by a larger margin. It is further sworn that the current growth in business and the unprecedented increase in cargo volumes are attributed to factors such as improved Port operational efficiency, streamlined cargo clearance services, and the expansion of Port facilities in Kenya, among others.
21. Further, Kenyan Ports are also said to be facing intensified competition from other ports along the East African coastline and as such, strategic investment in the Ports and Port facilities aimed at achieving efficiency is necessary in order to secure Kenyan Ports as the primary and most preferred gateway and exit point for cargo belonging to a vast hinterland and transit market that include Uganda, Rwanda, Burundi, Democratic Republic of Congo, Tanzania, South Sudan and Ethiopia.
22. The port equipment subject to the three tenders is integral to the Authority's modernisation programs aimed at enhancing operational efficiency in the Ports and the Inland Container Depots, increasing container throughput and reducing ship turnaround time.
23. The Authority's user department, through an Internal Memo dated 3 December 2025, indicated that the fleet of Reachstakers operating within the Kenyan Ports includes Sany, Hyster, ZPMC and Kalmar, which are from internationally reputable equipment manufacturers with notable presence in several ports and container handling facilities.
24. The performance evaluation of the existing Reachstakers reveals value for money because of superior technical features and reliable local dealer support, and the Authority's technical staff possesses vast experience and skills in functionalities, troubleshooting and maintenance of the said container handling equipment.
25. Against this background, it is sworn that it was recommended that the procurement for the new Reachstakers be restricted to manufacturers whose equipment already operates at the Port of Mombasa and the Wand Container Depots and have strong local dealer support due to the following advantages;
(a) Interchangeability of spare parts reduces costs on stockholding, administration, cataloguing and binning.
(b) The interchangeability of major parts such as engines, hydraulics, pneumatics and electronics results in standardisation and ultimately reduction of costs, considering that the 1st Respondent has already invested in some parts, and this lowers costs, considering the same parts and tools are used on the new equipment.
(c) The 1st Respondent has heavily invested in training engineers on the existing equipment brands, enabling m-house repairs even during the warrant period, thereby minimising downtime, unlike the introduction of new brands, which would require increased costs and longer equipment downtime.
(d) The existing Reachstakers brands are tried and tested, and the 1st Respondent's engineers and operators are familiar with the areas where improvements can be made via specifications as opposed to totally new equipment improvement whose operation and performance may not be familiar.
(e) A new brand of equipment will force the 1st Respondent to extensively train the operators, unlike the existing brands, where the operators will undergo minimal training, which mostly consists of familiarisation.
26. The General Manager, Supply Chain Management, sought approval to procure through Restricted Tendering from the Managing Director vide a Memo dated 23 December, 2025, which the Managing Director approved.
27. Following the approval by the Managing Director to procure through Restricted Tendering, the 1st Respondent in compliance with the provisions of section 102 (1) (c ) and (d) of the Act and Regulation 89 (8) of the Public Procurement and Asset Disposal Regulations 2020 published openly a notice of Intention to Procure Through Restricted Tender on its website and the Public Procurement Information Portal (PPIP) giving the reasons for the choice of the method and inviting any interested equipment manufacturer to participate in the tender, which advertisement meets the threshold of openness and transparency required by law.
28. Mr. Amuyunzu has sworn that he is aware that Regulation 89(8) of Public Procurement and Asset Disposal Rules that where any bidder outside the known suppliers emerges, the bidder is required to be invited to bid and, as such the allegation of discrimination would have no basis whatsoever.
29. The 1st Respondent invited M/s Sany Marine Heavy Industry Company Limited, M/ s Shanghai Port Machinery Heavy Industries Co. Ltd, M/ s Kalma Global and M/ s Hyster Yale Group (Hyster Europe) for tendering and that the said companies submitted their respective bids.
30. The bids were opened on 11th February, 2026 and upon evaluation of all the bids received, the Evaluation Committee recommended the award of Tender No. KPA/039/2025-26/ES: Supply, Testing and Commissioning of Fourteen (14) New Reachstackers at the evaluated price of USD.7,314,142.00 CIF Mombasa with a total delivery period of 32 weeks from the date of the Local Purchase Order.
31. All the bidders were notified of the outcomes of the tendering process, and as required vide letter dated 3 March, 2026, the successful bidder has since submitted their acceptance letter to the 1st Respondent vide letter dated 6 March, 2026. The award of the tender was, however, challenged by one bidder Kalmar, at the Public Procurement Administrative Review Board in Application No 42 of 2026. 24.
32. As far as Tender No. KPA/036/2025-26/ES: Supply, Testing, and Commissioning of Forty-Eight (48) Terminal Tractors concerns the Authority used a similar approval process and documents as the Reachstakers. With respect to the procurement of the Terminal Tractors under Tender No. KPA/036/2025-26/ES, Mr Amuyunzu has sworn that: -
(a) The procurement plan for the year 2022/23 provided for the procurement of five (5) units of Terminal Tractors, which were not procured, and the budgeted amount was rolled over.
(b) The procurement plan for 2024/25 provided for the procurement of thirteen (13) units of Terminal Tractors, which were not procured, and the budget was rolled over.
(c) The procurement plan for the year 2025/26 provided for the procurement of Thirty {30) units of Terminal Tractors.
(d) The total units of Terminal Tractors based on approved procurement plans for the years 2022/23, 2024/25 and 2025/26 are Forty-Eight (48) and therefore the allegations by the Applicants are alleged to be misleading.
33. As a result of the award for this tender, proceedings were commenced before the Public Procurement Administrative Review Board in case No. 32 of 2026.
34. As for Tender No. KPA/053/2025-26/CCE dealing with the Supply, Testing and Commissioning of Fifteen (15) New Forklift Trucks, I wish to state that the decision by the 1st Respondent to adopt Restricted Tendering was guided by the fact that the 1st Respondent currently operates Forklift Trucks of the XGMA, SMV Konecranes, Hyster and Kalmar brands which brands are widely used and well established in ports and container terminals.
35. The said brands have consistently served the 1st Respondent reliably, and their spare parts and maintenance tools are readily available on the market, and the advantages of using these brands are the same as those of using Reachstakers.
36. On the question of reachstackers to be procured, Mr Amuyunzu has sworn that:
(a) The procurement plan for the FY 2024/25 provided for the procurement of Eleven (11) Forklifts, which were not procured due to some challenges; however, the budget was rolled over.
(b) The procurement plan for the FY 2025/ 26 provided for the procurement of four (4) Forklifts.
(c) The cumulative units as per the 2024/25 and 2025/26 procurement plans are fifteen (15) Forklifts.
37. According to the provisions of Section 102 of the Act, the invitation to use Restricted Tender was published openly on the 1st Respondent's website and the Government public procurement information portal.
38. The advertisement drew the interest of one additional equipment manufacturer who expressed interest in being allowed to compete with the manufacturers of the current fleet of Forklifts owned and operated by the1st Respondent. Therefore, the original equipment manufacturers invited to submit tenders include M/S Xiamen XGMA Machinery Co. Ltd, M/S Konecranes Liftrucks AB, M/S Hyster Yale Group (Hyster Europe), M/S Fuji South China Heavy Machinery Manufactures Co. Ltd, and Kalmar Global.
39. Five bidders responded, and the bids were opened on 4th February, 2026, and it was noted that whereas some OEMS submitted bids directly, others participated through their duly appointed and authorised local agents.
40. Upon comprehensive evaluation of the bids received, the Evaluation Committee recommended the award of the tender as follows:-
(a) Lot1: Nine (9) New Forklift Trucks to M/ s Brookwood Technical Trading Co. Ltd at a total quoted price of USD.2,801,798.99 OPP with a completion period of six months.
(b) Lot Six (6) New Forklifts to M/ s Autobikes Limited at their total quoted price of USD.721,306.52 DPP with a completion period of six (6) months.
41. The bidders were notified of the tendering process as required, and the two successful bidders submitted their acceptance letters to the 1st Respondent dated 8th and 9th March, 2026, respectively. As a result of the award, proceedings have been commenced before the Public Procurement Administrative Review Board in case No. 43 of 2026.
42. Mr Amuyunzu has reiterated that the decision to procure all the units, including those that had previously been pre-planned in the previous procurement plans, is due to the unprecedented increase in vessel traffic for the Lamu Port and the unprecedented increase in cargo volumes at the Mombasa Port. These are business dynamics that require urgent capital investments in equipment to ensure efficient cargo handling and port operations, which not only enhance ship turnaround time to the benefit of maritime traders but also ensure safe cargo handling, thus positioning the Kenyan Ports as world-class ports of choice.
43. By their very nature, public procurement planning and budgeting are dynamic, informed by various factors that determine prioritisation and allocation of funds by the Government. Most of the equipment procurement plans had been included in previously approved procurement plans, for instance, but were rolled over to subsequent years. The failure to procure certain equipment and other planned items in previous financial years under the approved Procurement Plans is often due to Government decisions and priorities.
44. The unprecedented increase in volume at Kenyan ports is information in the public domain. The growth in business calls for the re-evaluation and re-arrangement of resources to ensure a commensurate cargo-handling capacity. In a Port operations setup, these dynamics dictate changes in the prioritisation, necessity, importance, and urgency of procurement, bearing in mind that the procurement of various equipment, like other capital investments, often takes time and ultimately spans multiple financial years.
45. It is as a result of these reasons, among other reasons, that the Government budget system has put in place mechanisms to ensure that funds are not hoarded at any given time, and budgets are also available for roll-over to subsequent financial years depending on the nature of procurement. The 1st Respondent, being a state corporation under the National Government, retains the authority to manage the funds allocated to it by the Government between existing budget line items or accounts within the organisation and, in that regard, to ensure proper financial management to enable budget flexibility within the approvals granted to it by the Government.
46. According to the respondents, considering the lead time in manufacturing processes, payment to contractors is best done only in milestones that, in most cases, cut across more than one or multiple financial years. In any event, it is not open for the 1st Respondent to spend public money outside the approved budget. Thus, the Applicants' allegation of wastage of public resources is totally unfounded.
47. Directions were taken that both the application and the preliminary objection would be disposed of together on the understanding that the court would proceed and consider the petitioners’ application on the merits if the 1st and 2nd respondents are overruled on their preliminary objection. If, on the other hand, the respondents’ position carries the day and their objection is upheld, it would be unnecessary to delve further into the application as well as the petition itself. It is inevitable that the court should consider the preliminary objection first.
48. I gather from the preliminary objection that it is two-pronged; firstly, that the dispute presented as a constitutional petition ought to have been filed as an ordinary suit in accordance with the provisions of the Public Procurement and Asset Disposal Act. Secondly, at the time material to the petition, the suit was sub judice, having been filed after several applications challenging either the award of the tenders or the procurement process leading to the award had been filed before the Public Procurement Administrative Review Board. An affirmative answer to any of these questions would determine the petition in limine.
49. The facts material to the determination of the preliminary objection are not in dispute. It is not in dispute that the 1st respondent floated several tenders for the procurement of certain equipment that, according to the 1st respondent, are necessary for its operations and for delivering on its mandate as a specialised public entity. The tenders have been identified as Tender No. KPA/039/2025-26/ES: Supply, Testing and Commissioning of Fourteen (14) New Reachstackers; Tender No. KPA/036/2025-26/ES: Supply, Testing, and Commissioning of Forty-Eight (48) Terminal Tractors; and Tender No. KPA/053/2025-26/CCE for the Supply, Testing and Commissioning of Fifteen (15) New Forklift Trucks.
50. It is also not in dispute that following the award of the tenders, applications or requests for review were filed before the Public Procurement Administrative Review Board challenging the decision of the 1st respondent. These applications are Application No 42 of 2026 in respect of Tender No. KPA/039/2025-26/ES: Supply, Testing and Commissioning of Fourteen (14) New Reachstackers; application no. No. 32 of 2026 in respect of Tender No. KPA/036/2025-26/ES: Supply, Testing, and Commissioning of Forty-Eight (48) Terminal Tractors; and application no. 43 of 2026 with regard to the award of Tender No. KPA/053/2025-26/CCE for the Supply, Testing and Commissioning of Fifteen (15) New Forklift Trucks.
51. At the hearing of the petitioners’ application, it emerged that the Public Procurement Administrative Review Board had made its determination on all three applications and dissatisfied parties had escalated the disputes to this Honourable Court by way of judicial review applications.
52. The legislature foresaw this sort of dispute arising out of public procurement and disposal of assets by public entities and, therefore, in enacting the Public Procurement and Asset Disposal Act, it made provisions for dispute resolution mechanisms. According to the legislative scheme, a person aggrieved by what he believes is a breach of a statutory duty by a procuring entity in the procurement process is entitled to
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