1. The Judicial Review Application before the Court challenges a decision by the 1st Respondent, the Public Procurement Administrative Review Board (PPARB) dated 9th March 2026 in Public Procurement Administrative Review Board Application No. 24 of 2026 which upheld the award of a government legal tender to G & A Advocates LLP, the Interested Party herein.
2. The facts are that the 3rd Respondent, The National Treasury on behalf of the Cabinet Secretary to the National Treasury of Kenya issued a tender No. TNT/SPP/RT/010/2025-2026 for Procurement of Legal Services of Local Counsel on 8th January 2026, with a closing date of 16th January 2026 to represent the Attorney General in an international arbitration matter Jamhuri Holdings Ltd vs. The Attorney General of the Republic of Kenya. The Applicant and the Interested Party G&A Advocates LLP submitted bids. The Procuring Entity evaluated bids in three stages and awarded the contract to G & A Advocates LLP. The Applicant’s bid was found responsive but was not the lowest evaluated. Consequently, the Applicant lost the bid to the Interested Party and were notified of this through an email dated 5th February 2026 containing the Notification of Intention to Award letter (erroneously dated 4th January 2026 instead of 4th February 2026) Reference No. TNT/SPP/RT/010/2025 – 2026 (hereinafter, “the Notification Letter or Regret Letter”).
3. Following the unsuccessful tender process, the Applicant appealed to the Review Board though a letter dated 6th February 2026, and were invited for a debrief through a response letter dated 9th February 2026 for a meeting on 10th February 2026 where their appeal was dismissed. Their dissatisfaction with the reasons advanced by the Procuring Entity on why their bid was unsuccessful precipitated into these proceedings. The Applicant, a competing law firm of the Interested Party, argues that the Board’s decision should be quashed because it is illegal, irrational, and based on a flawed interpretation of the tender documents. An interim order was granted by this Court, differently constituted by Chigiti J to stay the impugned decision pending determination of the Application.
The Application
4. The Originating Motion before the Court is dated 19th March 2026 and is instituted pursuant to the provisions of Articles 10, 22, 23 (3) (f) 47, 48, 50 (1) and 227 of the Constitution of Kenya 2010, Section 175 (1) of the Public Procurement and Asset Disposal Act Cap 412C of the Laws of Kenya, Sections 7, 9, 10 and 11 of the Fair Administrative Action Act Cap 7L of the Laws of Kenya, Rules 9, 11, 13 and 21 of the Fair Administrative Action Rules, 2024, and all enabling provisions of the law.
5. The Applicant seeks the following reliefs:
i. SPENT
ii. 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 (the 1st Respondent) dated 9th March 2026 in Public Procurement Administrative Review Board Application No. 24 of 2026, in respect of Tender No. TNT/SPP/RT/010/2025-2026 for Procurement of Legal Services of Local Counsel in Respect to the Matter of an Arbitration Under the LCIA Arbitration Rules, 2020 Between Jamhuri Holdings Limited vs. The Attorney General of the Republic of Kenya, on Behalf of The Cabinet Secretary to The National Treasury of Kenya, and to remit the matter for reconsideration by the 1st Respondent and issuance of appropriate and effective relief(s) on merit, taking into consideration the Judgment of this Honourable Court.
iii. THAT this Honorable 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 9th March 2026 in Public Procurement Administrative Review Board Application No. 24 of 2026, in respect of Tender No. TNT/SPP/RT/010/2025-2026 for Procurement of Legal Services of Local Counsel in Respect to the Matter of an Arbitration Under the LCIA Arbitration Rules, 2020 Between Jamhuri Holdings Limited vs. The Attorney General of The Republic of Kenya, on Behalf of The Cabinet Secretary to The National Treasury of Kenya.
iv. THAT this Honorable Court be pleased to issue an order of CERTIORARI, to remove into the High Court and quash and/or set aside any Contract in respect of respect of Tender No. TNT/SPP/RT/010/2025-2026 for Procurement of Legal Services of Local Counsel in Respect to the Matter of an Arbitration Under the LCIA Arbitration Rules, 2020 Between Jamhuri Holdings Limited vs. The Attorney General of The Republic of Kenya, on Behalf of The Cabinet Secretary to The National Treasury of Kenya, that may have been illegally signed between the 2nd and 3rd Respondent and the Interested Party during the 14 days standstill period following the decision of the 1st Respondent dated 9th March 2026.
v. SPENT
vi. THAT the costs of these proceedings be provided for.
vii. Such other, further, incidental and/or alternative relief(s) as this Honourable Court may deem just and expedient.
6. The Application is premised on the grounds on the face of it and is further supported by the Affidavit of Dr. Kenneth Kiplagat, a partner at Applicant sworn on even date. The Applicant has enlisted about 30 substantive grounds in support of the Application which can be summarized as hereunder.
7. The Applicant’s case is that the core dispute is centred on firm experience against individual experience, where they argue that the Interested Party would not have emerged successful if the evaluation especially at the technical stage was conducted in an objective and quantifiable manner as required under Section 80 of the Public Procurement and Asset Disposal Act.
8. It is averred that the 1st Respondent unlawfully and irregularly interpreted the provisions of the Tender Document and specifically Technical Criterion 1 (b), whose proper meaning must be considered alongside other relevant provisions of the Technical Requirements & Evaluation Criteria under the Tender Document. That the Review Board allowed the Interested Party to score maximum points on the first criterion being “Specific Experience of the Firm related to the assignment” by claiming the past experience of one of its partners Mr. Ken Melly who is said to have gained experience while working at a completely different law firm, Iseme Kamau & Maema Advocates. That the said criterion required the firm’s experience not that of its individual partners.
9. It is asserted that the Applicant has directly and successfully handled International Commercial and Investment Treaty Arbitrations and has vast knowledge of the active players in that area of practice. The Applicant strongly opposes the 1st Respondent’s decision on the basis that it was illegal and irregular as it amounted to rewriting the tender where they imposed their own interpretation of the clause 1b of the tender document.
10. It is argued that the said decision also violated Procurement Laws, in that, the Board acted ultra vires by effectively rewriting the tender document. It is deposed that under the Public Procurement Act, evaluation must be strictly based on the criteria as written.
11. Further, the deponent asserts that the tender document explicitly separated ‘Specific Experience of the Firm’ under Criterion 1 from ‘Qualifications and competence of key staff’ under Criterion C, which required CVs and certificates of the firm’s employees. That by allowing individual partner history to count toward firm experience, the Board illegally blurred these distinct categories, rendering Criterion C superfluous. It is contended that the corporate identity requirement was ignored since the Interested Party is a Limited Liability Partnership with a separate legal identity from its partners. That in this regard, the Board ignored this legal fact by giving the Interested Party credit for work done by a different corporate entity.
12. It is also deposed that the decision was marred with irrationality and internal contradiction because the Board’s logic defies common sense and is internally inconsistent. It is contended that the Board justified its decision by stating that a law firm is merely a ‘vehicle’ and that an advocate’s personal experience moves with them when they change firms.
13. That on the same breath, there was a requirement under Criterion 1(a) for the firm to have 20 years of experience. They contend that Board correctly denied the Interested Party points here because the firm’s registration documents CR13 proved it had only existed for 19 years. However, under the said Criterion 1(b), the Board suddenly flipped its logic, treating the firm as a ‘vehicle’ to absorb a partner's older experience. It is argued that the Board considered the Interested Party’s lawyers individual and cumulative experience garnered over their years of practice in different firms, under Criterion 1 (b) and that if it truly believed a firm is just a ‘vehicle’ for its lawyers' experience, it should have awarded the Interested Party points for Criterion 1 (a) as well. It is contended that the fact of selectively picking and choosing when to apply this logic makes the decision irrational and biased.
14. It is deposed generally that the impugned Decision is irrational within the meaning of Section 7 (2) (i) of the Fair Administrative Action Act, because the reasoning adopted by the 1st Respondent lacked any rational connection to the express provisions of the Tender Document and the applicable statutory framework; that it was unreasonable within the meaning of Section 7 (2) (k) of the Fair Administrative Action Act, in that the findings made therein are internally contradictory and devoid of any plausible or intelligible justification and that it also constitutes an outright breach of Article 227 of the Constitution since, by allowing a deviation from the set evaluation criteria and addition to the evaluation criteria expressly stated in the tender document, the Review Board acted illegally and irregularly and in violation of the principles of fairness, transparency and competitiveness espoused in the Constitution.
15. In response to the Application, the 2nd and 3rd Respondents filed a Replying Affidavit opposing the Application sworn by Dr. Chris Kiptoo, the Principal Secretary for the National Treasury dated 9th March 2026. It is noted however that although the physical copy in the file is indicated as sworn on 9th March 2026, the Application is dated 19th March 2026.
16. The Respondents state that the Applicant’s Originating Motion is misconceived, devoid of merit, and unsustainable in law. They assert that the Applicant challenges the 1st Respondent’s (Review Board) decision based on a fundamental misapprehension and misinterpretation of the ruling and outline the legal and procedural basis for the procurement of external legal counsel for an arbitration involving Jamhuri Holdings Limited vs. The Attorney General stating that they employed the Specially Permitted Procurement Procedure (SPP) and Restricted Tendering citing Section 114A(2)(c) of the PPAD Act because the services were for specialized requirements governed by harmonized international standards under London Court of International Arbitration (LCIA) Rules.
17. He deposes that this process was justified because Regulation 107 entailed a consideration of public interest and national security, given the grave financial exposure that was at stake while Section 102 (1) (a) restricted tendering due to the complex and specialized nature of the services. He deposed that only two firms were invited: M/s G & A Advocates LLP, the Interested Party and M/s Okoth & Kiplagat Advocates, the Applicant and that both bidders were found responsive as they exceeded the 70% minimum pass mark and passed the technical stage with G & A Advocates LLP scoring 98% while Okoth & Kiplagat Advocates scored 76%. That further, G & A Advocates LLP was the lowest evaluated bidder at Kshs. 358,000,000, compared to the Applicant’s bid of Kshs. 380,000,000, thereby justifying the awarding of the tender to G & A Advocates LLP on 2nd February 2026, in accordance with the tender document which required awarding the contract to the lowest evaluated tenderer.
18. It is averred that the core of the Applicant’s challenge was the evaluation of ‘Firm Experience’ under the technical criteria where the Applicant argued that G & A Advocates should not have been awarded full marks for experience. They contended that the experience relied upon handling the Cortec Mining Arbitration was acquired by Mr. Ken Melly while he was employed at a different law firm - Iseme Kamau & Maema Advocates – and in finding them compliant, the Applicant claimed the Board violated Clause 39.2 of the Tender Document prohibiting reliance on other firms’ experience.
19. It is contended that the Board reviewed the evidence and found that an advocate’s experience is personal to the individual and does not vanish when they change firms, that when Mr. Ken Melly moved to G & A Advocates, his professional experience moved with him. That also since Mr. Ken Melly is currently a partner at G & A Advocates, the firm possesses the requisite experience by virtue of employing him.
20. The 2nd & 3rd Respondents’ position is that they fully support the Board’s interpretation in this regard and assert that awarding the full 20 marks under Clause 1(b) to the Interested Party was lawful and proper, as Mr. Melly is indeed a partner of the firm. The Respondents maintain that the Public Procurement Administrative Review Board (PPARB) duly considered all pleadings, written submissions, and confidential documents and acted within the confines of the Constitution, the PPAD Act, and the Fair Administrative Action Act.
21. It is averred that the Applicant has failed to demonstrate any illegality, irrationality, procedural impropriety, or unfairness in the Board’s decision and that following the Board’s dismissal of the Applicant’s Request for Review on 9th March 2026, the Accounting Officer proceeded to conclude the tender and the contract was legally cleared by the legal unit and executed by both parties on 17th March 2026.
22. The Interested Party also filed a Replying Affidavit dated 26th March 2026 sworn by Eric Gumbo the Interested Party’s Managing Partner, who vehemently opposed the Application on the grounds inter alia that the Applicant has not mounted any procedural challenge to the manner in which the impugned decision was arrived at. That the Applicant’s challenge of the impugned decision is premised on three main contentions being, the alleged illegality where they claim that there was a disregard of Article 227(2) of the Constitution and various sections of the Public Procurement and Asset Disposal Act (PPADA); misinterpretation, where they argue that the 1st Respondent - the Review Board, misinterpreted ‘Criterion I(b)’ of the Technical Evaluation Criteria regarding the evaluation of experience; and thirdly irrationality by asserting that the decision dated 9th March, 2026, was illogical, unreasonable and biased.
23. It is deposed that the Application should be dismissed because it is a disguised appeal and amounts to an abuse of the court process. The Applicant has mounted a collateral attack on the Review Board’s decision, improperly clothed as a judicial review yet they have raised issues of substance over form and are inviting the Court to re-evaluate technical merits, an exercise outside the scope of judicial review which is limited only to the legality of the process. It is contended that the Application relies on the Supreme Court decision in Dande & 3 Others vs. Inspector General & Others [2023] eKLR, yet the said decision prohibits courts from re-evaluating the merits of a decision during judicial review proceedings.
24. Another ground of opposition is that the Application is moot and has been overtaken by events. The Interested Party contends that the relief sought is otiose because of three reasons. Firstly, the procurement process is already concluded. The deponent asserts that the contract was executed following the Review Board’s decision on 9th March 2026 where the Accounting Officer executed an Engagement Letter on 17th March 2026. Secondly, representation has already commenced where the Interested Party and its King’s Counsel, Michael Sullivan, have already assumed representation of Kenya in the arbitral proceedings where they participated in a hearing on 18th March 2026, resulting in a Procedural Order on 25th March 2026. Thirdly, there is no subsisting decision to be stayed since the contract is signed and work has begun. The acts the Applicant seeks to stop have already occurred.
25. It is deposed that there are restrictions on changing counsel under Article 18.3 of the London Court of International Arbitration (LCIA) Rules, after proceedings commence without the Tribunal’s approval. That further, disrupting the current representation would likely cause procedural gaps and prejudice the State in the ongoing arbitration.
26. The Interested Party defends the merits of the tender evaluation, specifically regarding Criterion I(b) on firm’s experience and mounts a substantive defence arguing that the award was lawful and rational. It is deposed that the Review Board correctly interpreted that a law firm’s experience is derived from the collective expertise of its individual professionals and they had evidence of experience such as the fact that their partner, Ken Melly, was recorded as counsel representing the State in Cortec Mining Kenya Limited v. Republic of Kenya (ICSID Award) 4th October 2006 while the Applicant on their part failed to prove direct responsibility in the World Duty Free Company Limited v. Republic of Kenya (ICSID Award, 4 October 2006) since their firm’s name Okoth Kiplagat was merely noted as present in a footnote, not as acting counsel.
27. It is averred that the Interested Party was the lowest evaluated bidder, offering a cost saving of Kshs. 30,000,000 thereby upholding the constitutional principle of prudent and efficient use of public resources. That as such, the decision of the 1st Respondent was procedurally sound with the Evaluation Committee properly interpreting and applying the tender criteria and providing justification for the award.
28. It is further deposed that the arbitration involves potential liabilities in the tens of billions so that staying the representation would leave Kenya unrepresented in high-stakes proceedings. It is also argued that the State would lose fees already paid for work done and incur further costs in retendering. Additionally, the State faces both the risk of an adverse arbitral award and financial loss from disrupted legal services.
29. It is also argued that the Applicant seeks a stay of the Review Board’s decision against their appeal, that the said decision was a dismissal and therefore a negative order which as matter of settled law, could not be stayed. The Interested Party prays that the Application be dismissed with costs, arguing that it is an abuse of court process, statute-barred by the fact that the contract is already active, and is legally unsustainable as it attempts to appeal a merit-based decision disguised as a judicial review.
30. In rebuttal, the Applicant filed a further Affidavit dated 8th April 2026 deposed by Dr. Kenneth Kiplagat in which he asserts that their challenge is fundamentally grounded in administrative law, not an appeal on the merits of the tender. He affirms that the issues being raised concern the legality, rationality, and procedural propriety of the Review Board’s decision-making process.
31. The Applicant argues that the Court has a duty to scrutinize whether the Board’s interpretation of the Tender Document was lawful, rational, and consistent with the Constitution at Articles 10, 47, and 227 and the Public Procurement and Asset Disposal Act (PPADA). They add further that the core dispute is in the interpretation of Criterion 1(b) and argue that the Review Board and the Interested Party committed a fundamental error of law by conflating ‘Firm Experience’ with ‘Individual Advocate Experience’. It is asserted that Criterion 1(b) expressly required the Firm to demonstrate that it had directly handled qualifying arbitrations and added that the Board made extraneous considerations in unlawfully allowing the Interested Party to rely on the experience of a partner Mr. Ken Melly which was acquired while he was at a different law firm.
32. The Applicant argues that this interpretation renders Technical Criteria C which specifically evaluates individual staff qualifications redundant and that the Tender Document deliberately distinguishes between the experience of the firm - Criteria 1(a) & 1(b) - and the experience of individual staff Criteria C.
33. It is deposed that the Board’s approach violates Section 80 (2) and (3) of the PPADA, which mandates that evaluations be objective, quantifiable, and based strictly on the criteria set out in the Tender Document. That their interpretation effectively rewrites the Tender Document.
34. The Applicant vehemently opposes the claim that the matter is moot because the contract was executed on 17th March, 2026. It is argued that the Procuring Entity acted in blatant contravention of the mandatory standstill period under Section 175 of the PPADA by executing the contract before the statutory 14 days’ period had lapsed. That further to this, a contract executed pursuant to an unlawful procurement process and in breach of the mandatory standstill period is illegal, null and void from the outset.
35. The Applicant asserts that parties cannot defeat judicial review by rushing to implement decisions. The Court retains jurisdiction to issue orders of Certiorari to quash the decision and the illegal contract, and Prohibition to restrain further implementation. The Applicant also cites a specific incident during the Review Board hearing as evidence of bias and a breach of natural justice where he alleged that towards the close of the proceedings, the Chairperson asked the Interested Party’s counsel about the status/progress of the underlying arbitration an issue that was neither pleaded nor formed part of the matters for determination before the Board, and the Applicant was not invited to address it. The Applicant argues this indicates the Board prioritized ‘urgency’ over justice and tacitly encouraged the illegal execution of the contract during the standstill period.
36. The Applicant dismisses the Interested Party’s reliance on being the ‘lowest evaluated bidder’ and argues that price is only considered after strict compliance with mandatory technical criteria. It is asserted that an unlawfully evaluated bid cannot be validated simply because it is cheap. That accordingly, the procurement framework prohibits sacrificing competence and technical suitability for price. On the same breath, the Applicant argues that true public interest lies in upholding the rule of law and the integrity of the procurement process, not in sanctioning impunity and illegal contract signing.
37. The Applicant highlights that the 1st Respondent’s, the Review Board’s own affidavit supports their case because it admits that it relied on experience acquired by an advocate while at a different firm and attributed it to the Interested Party. That the said admission confirms that the evaluation was based on extraneous considerations and ‘third-party experience’ which violates Section 80 (2) of the PPADA and Clause 39.2 of the Tender Document prohibiting reliance on other firms’ experience.
38. The Applicant maintains that the impugned decision is ultra vires, irrational, and procedurally improper. They urge the Court to intervene decisively to quash the decision and the consequent illegal contract, arguing that allowing the status quo would encourage public bodies to violate the mandatory standstill period with impunity.
39. In a rejoinder, the Interested Party filed a Supplementary Affidavit again sworn by Eric Gumbo and dated 14th April 2026 in response to the Applicant’s further affidavit of 8th April 2026 in which the Interested Party attacks the validity of the Applicant’s Further Affidavit sworn on 8th April 2026 on the basis that it is procedurally flawed because it improperly introduces new facts and allegations that were not contained in the Originating Motion or the Supporting Affidavit. That this violates the settled principles governing further affidavits, which generally prohibit the introduction of new matters at that stage.
40. The Interested Party claims they will suffer prejudice because they have not had sufficient time or opportunity to respond to these new allegations or prepare for trial on these unexpected issues. The Interested Party specifically identifies and rebuts two major new issues raised by the Applicant one being the allegation of bias regarding the Review Board Chairperson and the allegation of illegal contract execution during the standstill Period.
41. On the first issue it is deposed that the Applicant alleged that the Review Board Chairperson improperly asked the Interested Party’s Counsel about the status of the arbitration proceedings, without inviting the Applicant to respond, thereby showing bias which allegation, they have dismissed as legally untenable and factually wrong. It is contended that the Applicant was present during the proceedings and failed to object or raise the issue of bias at the time. It is also alleged that the question was posed at the tail end of the proceedings to all counsel present, not just the Interested Party, to inform the Board regarding timelines and urgency. That this was merely a procedural housekeeping matter, not a substantive issue for determination and since the Applicant’s counsel was at liberty to address the issue but chose not to, they cannot now fault the Board for their own silence.
42. On the second allegation, it is deposed that the Applicant alleged that the execution of the contract during the 14-day period following the Review Board’s decision was unlawful under Section 175(1) of the Public Procurement and Asset Disposal Act (PPADA) but the Interested Party argues that Section 175(1) does not prohibit a procuring entity from implementing a tender after the Review Board has rendered its decision.
43. It is contended that the Act expressly suspends proceedings upon the filing of a Request for Review under Section 167, but it does not contain an express prohibition against implementation after the Board has delivered its Ruling. That consequently, the Respondents acted lawfully by implementing the Board’s orders, which directed the conclusion of the tender process. That further, the dismissal of the Request for Review is a negative order and does not operate as a stay or trigger a standstill period that prevents implementation.
44. The Interested Party urges that these new factual statements at paragraphs 17-23 of the Applicant’s affidavit should be expunged from the court record to prevent a miscarriage of justice and unfair prejudice.
45. Finally, the Applicant filed a further affidavit dated 1st April 2026 in response to the 2nd and 3rd Respondents’ Replying Affidavit of Dr. Chris Kiptoo. The Applicant dismisses the 2nd and 3rd Respondents’ justification for using the Specially Permitted Procurement Procedure (SPP) based on urgency and argues that the reasons for using a specific procurement method being urgency and national security, do not cure the fundamental defects in the evaluation process.
46. It is deposed in rebuttal that the central issue remains the illegality, irregularity, and irrationality of the 1st Respondent’s interpretation and application of Criterion 1(b). The Applicant reiterates that the entire procurement process is irreparably flawed because it was founded on an unlawful interpretation of the Tender Document and maintains that once the technical evaluation was conducted based on an unlawful criterion, the subsequent financial evaluation and the final award are also tainted and cannot stand.
47. The Applicant argues that the 1st Respondent effectively introduced a new standard which was that individual advocate experience equates to firm experience which was not contained in the Tender Document. That this amounts to an alteration of the tender document by the Board, an act that is ultra vires and unlawful.
48. The Applicant continues to contest the conflation of ‘Firm Experience’ with ‘Individual Experience’ and points out that the Respondents’ own affidavit confirms that the experience relied upon by the Interested Party was acquired while their key partner was employed at a different law firm (Iseme Kamau & Maema Advocates). It is argued that this experience could not legally be attributed to the Interested Party under criterion 1(b) on firm experience. The Applicant contends that this experience should only have been evaluated under Technical Criteria C which assesses individual staff qualifications, not under the firm-level criteria.
49. It is asserted that if evaluated correctly, the Interested Party would not have obtained the minimum pass mark under Criterion 1(b), as they lacked the requisite institutional experience distinct from their partners’ past employment.
50. The Applicant emphasizes that the Tender Document expressly prohibited bidders from relying on the experience of other firms. By allowing the Interested Party to claim experience acquired at a previous firm, the Board violated this express prohibition and failed to give effect to the mandatory requirements of the Tender Document and instead relied on extraneous considerations.
51. The Applicant maintains that the Board’s decision in dismissing their Request for Review was founded on a clear misinterpretation of the Tender Docume
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2. The facts are that the 3rd Respondent, The National Treasury on behalf of the Cabinet Secretary to the National Treasury of Kenya issued a tender No. TNT/SPP/RT/010/2025-2026 for Procurement of Legal Services of Local Counsel on 8th January 2026, with a closing date of 16th January 2026 to represent the Attorney General in an international arbitration matter Jamhuri Holdings Ltd vs. The Attorney General of the Republic of Kenya. The Applicant and the Interested Party G&A Advocates LLP submitted bids. The Procuring Entity evaluated bids in three stages and awarded the contract to G & A Advocates LLP. The Applicant’s bid was found responsive but was not the lowest evaluated. Consequently, the Applicant lost the bid to the Interested Party and were notified of this through an email dated 5th February 2026 containing the Notification of Intention to Award letter (erroneously dated 4th January 2026 instead of 4th February 2026) Reference No. TNT/SPP/RT/010/2025 – 2026 (hereinafter, “the Notification Letter or Regret Letter”).
3. Following the unsuccessful tender process, the Applicant appealed to the Review Board though a letter dated 6th February 2026, and were invited for a debrief through a response letter dated 9th February 2026 for a meeting on 10th February 2026 where their appeal was dismissed. Their dissatisfaction with the reasons advanced by the Procuring Entity on why their bid was unsuccessful precipitated into these proceedings. The Applicant, a competing law firm of the Interested Party, argues that the Board’s decision should be quashed because it is illegal, irrational, and based on a flawed interpretation of the tender documents. An interim order was granted by this Court, differently constituted by Chigiti J to stay the impugned decision pending determination of the Application.
The Application
4. The Originating Motion before the Court is dated 19th March 2026 and is instituted pursuant to the provisions of Articles 10, 22, 23 (3) (f) 47, 48, 50 (1) and 227 of the Constitution of Kenya 2010, Section 175 (1) of the Public Procurement and Asset Disposal Act Cap 412C of the Laws of Kenya, Sections 7, 9, 10 and 11 of the Fair Administrative Action Act Cap 7L of the Laws of Kenya, Rules 9, 11, 13 and 21 of the Fair Administrative Action Rules, 2024, and all enabling provisions of the law.
5. The Applicant seeks the following reliefs:
i. SPENT
ii. 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 (the 1st Respondent) dated 9th March 2026 in Public Procurement Administrative Review Board Application No. 24 of 2026, in respect of Tender No. TNT/SPP/RT/010/2025-2026 for Procurement of Legal Services of Local Counsel in Respect to the Matter of an Arbitration Under the LCIA Arbitration Rules, 2020 Between Jamhuri Holdings Limited vs. The Attorney General of the Republic of Kenya, on Behalf of The Cabinet Secretary to The National Treasury of Kenya, and to remit the matter for reconsideration by the 1st Respondent and issuance of appropriate and effective relief(s) on merit, taking into consideration the Judgment of this Honourable Court.
iii. THAT this Honorable 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 9th March 2026 in Public Procurement Administrative Review Board Application No. 24 of 2026, in respect of Tender No. TNT/SPP/RT/010/2025-2026 for Procurement of Legal Services of Local Counsel in Respect to the Matter of an Arbitration Under the LCIA Arbitration Rules, 2020 Between Jamhuri Holdings Limited vs. The Attorney General of The Republic of Kenya, on Behalf of The Cabinet Secretary to The National Treasury of Kenya.
iv. THAT this Honorable Court be pleased to issue an order of CERTIORARI, to remove into the High Court and quash and/or set aside any Contract in respect of respect of Tender No. TNT/SPP/RT/010/2025-2026 for Procurement of Legal Services of Local Counsel in Respect to the Matter of an Arbitration Under the LCIA Arbitration Rules, 2020 Between Jamhuri Holdings Limited vs. The Attorney General of The Republic of Kenya, on Behalf of The Cabinet Secretary to The National Treasury of Kenya, that may have been illegally signed between the 2nd and 3rd Respondent and the Interested Party during the 14 days standstill period following the decision of the 1st Respondent dated 9th March 2026.
v. SPENT
vi. THAT the costs of these proceedings be provided for.
vii. Such other, further, incidental and/or alternative relief(s) as this Honourable Court may deem just and expedient.
6. The Application is premised on the grounds on the face of it and is further supported by the Affidavit of Dr. Kenneth Kiplagat, a partner at Applicant sworn on even date. The Applicant has enlisted about 30 substantive grounds in support of the Application which can be summarized as hereunder.
7. The Applicant’s case is that the core dispute is centred on firm experience against individual experience, where they argue that the Interested Party would not have emerged successful if the evaluation especially at the technical stage was conducted in an objective and quantifiable manner as required under Section 80 of the Public Procurement and Asset Disposal Act.
8. It is averred that the 1st Respondent unlawfully and irregularly interpreted the provisions of the Tender Document and specifically Technical Criterion 1 (b), whose proper meaning must be considered alongside other relevant provisions of the Technical Requirements & Evaluation Criteria under the Tender Document. That the Review Board allowed the Interested Party to score maximum points on the first criterion being “Specific Experience of the Firm related to the assignment” by claiming the past experience of one of its partners Mr. Ken Melly who is said to have gained experience while working at a completely different law firm, Iseme Kamau & Maema Advocates. That the said criterion required the firm’s experience not that of its individual partners.
9. It is asserted that the Applicant has directly and successfully handled International Commercial and Investment Treaty Arbitrations and has vast knowledge of the active players in that area of practice. The Applicant strongly opposes the 1st Respondent’s decision on the basis that it was illegal and irregular as it amounted to rewriting the tender where they imposed their own interpretation of the clause 1b of the tender document.
10. It is argued that the said decision also violated Procurement Laws, in that, the Board acted ultra vires by effectively rewriting the tender document. It is deposed that under the Public Procurement Act, evaluation must be strictly based on the criteria as written.
11. Further, the deponent asserts that the tender document explicitly separated ‘Specific Experience of the Firm’ under Criterion 1 from ‘Qualifications and competence of key staff’ under Criterion C, which required CVs and certificates of the firm’s employees. That by allowing individual partner history to count toward firm experience, the Board illegally blurred these distinct categories, rendering Criterion C superfluous. It is contended that the corporate identity requirement was ignored since the Interested Party is a Limited Liability Partnership with a separate legal identity from its partners. That in this regard, the Board ignored this legal fact by giving the Interested Party credit for work done by a different corporate entity.
12. It is also deposed that the decision was marred with irrationality and internal contradiction because the Board’s logic defies common sense and is internally inconsistent. It is contended that the Board justified its decision by stating that a law firm is merely a ‘vehicle’ and that an advocate’s personal experience moves with them when they change firms.
13. That on the same breath, there was a requirement under Criterion 1(a) for the firm to have 20 years of experience. They contend that Board correctly denied the Interested Party points here because the firm’s registration documents CR13 proved it had only existed for 19 years. However, under the said Criterion 1(b), the Board suddenly flipped its logic, treating the firm as a ‘vehicle’ to absorb a partner's older experience. It is argued that the Board considered the Interested Party’s lawyers individual and cumulative experience garnered over their years of practice in different firms, under Criterion 1 (b) and that if it truly believed a firm is just a ‘vehicle’ for its lawyers' experience, it should have awarded the Interested Party points for Criterion 1 (a) as well. It is contended that the fact of selectively picking and choosing when to apply this logic makes the decision irrational and biased.
14. It is deposed generally that the impugned Decision is irrational within the meaning of Section 7 (2) (i) of the Fair Administrative Action Act, because the reasoning adopted by the 1st Respondent lacked any rational connection to the express provisions of the Tender Document and the applicable statutory framework; that it was unreasonable within the meaning of Section 7 (2) (k) of the Fair Administrative Action Act, in that the findings made therein are internally contradictory and devoid of any plausible or intelligible justification and that it also constitutes an outright breach of Article 227 of the Constitution since, by allowing a deviation from the set evaluation criteria and addition to the evaluation criteria expressly stated in the tender document, the Review Board acted illegally and irregularly and in violation of the principles of fairness, transparency and competitiveness espoused in the Constitution.
15. In response to the Application, the 2nd and 3rd Respondents filed a Replying Affidavit opposing the Application sworn by Dr. Chris Kiptoo, the Principal Secretary for the National Treasury dated 9th March 2026. It is noted however that although the physical copy in the file is indicated as sworn on 9th March 2026, the Application is dated 19th March 2026.
16. The Respondents state that the Applicant’s Originating Motion is misconceived, devoid of merit, and unsustainable in law. They assert that the Applicant challenges the 1st Respondent’s (Review Board) decision based on a fundamental misapprehension and misinterpretation of the ruling and outline the legal and procedural basis for the procurement of external legal counsel for an arbitration involving Jamhuri Holdings Limited vs. The Attorney General stating that they employed the Specially Permitted Procurement Procedure (SPP) and Restricted Tendering citing Section 114A(2)(c) of the PPAD Act because the services were for specialized requirements governed by harmonized international standards under London Court of International Arbitration (LCIA) Rules.
17. He deposes that this process was justified because Regulation 107 entailed a consideration of public interest and national security, given the grave financial exposure that was at stake while Section 102 (1) (a) restricted tendering due to the complex and specialized nature of the services. He deposed that only two firms were invited: M/s G & A Advocates LLP, the Interested Party and M/s Okoth & Kiplagat Advocates, the Applicant and that both bidders were found responsive as they exceeded the 70% minimum pass mark and passed the technical stage with G & A Advocates LLP scoring 98% while Okoth & Kiplagat Advocates scored 76%. That further, G & A Advocates LLP was the lowest evaluated bidder at Kshs. 358,000,000, compared to the Applicant’s bid of Kshs. 380,000,000, thereby justifying the awarding of the tender to G & A Advocates LLP on 2nd February 2026, in accordance with the tender document which required awarding the contract to the lowest evaluated tenderer.
18. It is averred that the core of the Applicant’s challenge was the evaluation of ‘Firm Experience’ under the technical criteria where the Applicant argued that G & A Advocates should not have been awarded full marks for experience. They contended that the experience relied upon handling the Cortec Mining Arbitration was acquired by Mr. Ken Melly while he was employed at a different law firm - Iseme Kamau & Maema Advocates – and in finding them compliant, the Applicant claimed the Board violated Clause 39.2 of the Tender Document prohibiting reliance on other firms’ experience.
19. It is contended that the Board reviewed the evidence and found that an advocate’s experience is personal to the individual and does not vanish when they change firms, that when Mr. Ken Melly moved to G & A Advocates, his professional experience moved with him. That also since Mr. Ken Melly is currently a partner at G & A Advocates, the firm possesses the requisite experience by virtue of employing him.
20. The 2nd & 3rd Respondents’ position is that they fully support the Board’s interpretation in this regard and assert that awarding the full 20 marks under Clause 1(b) to the Interested Party was lawful and proper, as Mr. Melly is indeed a partner of the firm. The Respondents maintain that the Public Procurement Administrative Review Board (PPARB) duly considered all pleadings, written submissions, and confidential documents and acted within the confines of the Constitution, the PPAD Act, and the Fair Administrative Action Act.
21. It is averred that the Applicant has failed to demonstrate any illegality, irrationality, procedural impropriety, or unfairness in the Board’s decision and that following the Board’s dismissal of the Applicant’s Request for Review on 9th March 2026, the Accounting Officer proceeded to conclude the tender and the contract was legally cleared by the legal unit and executed by both parties on 17th March 2026.
22. The Interested Party also filed a Replying Affidavit dated 26th March 2026 sworn by Eric Gumbo the Interested Party’s Managing Partner, who vehemently opposed the Application on the grounds inter alia that the Applicant has not mounted any procedural challenge to the manner in which the impugned decision was arrived at. That the Applicant’s challenge of the impugned decision is premised on three main contentions being, the alleged illegality where they claim that there was a disregard of Article 227(2) of the Constitution and various sections of the Public Procurement and Asset Disposal Act (PPADA); misinterpretation, where they argue that the 1st Respondent - the Review Board, misinterpreted ‘Criterion I(b)’ of the Technical Evaluation Criteria regarding the evaluation of experience; and thirdly irrationality by asserting that the decision dated 9th March, 2026, was illogical, unreasonable and biased.
23. It is deposed that the Application should be dismissed because it is a disguised appeal and amounts to an abuse of the court process. The Applicant has mounted a collateral attack on the Review Board’s decision, improperly clothed as a judicial review yet they have raised issues of substance over form and are inviting the Court to re-evaluate technical merits, an exercise outside the scope of judicial review which is limited only to the legality of the process. It is contended that the Application relies on the Supreme Court decision in Dande & 3 Others vs. Inspector General & Others [2023] eKLR, yet the said decision prohibits courts from re-evaluating the merits of a decision during judicial review proceedings.
24. Another ground of opposition is that the Application is moot and has been overtaken by events. The Interested Party contends that the relief sought is otiose because of three reasons. Firstly, the procurement process is already concluded. The deponent asserts that the contract was executed following the Review Board’s decision on 9th March 2026 where the Accounting Officer executed an Engagement Letter on 17th March 2026. Secondly, representation has already commenced where the Interested Party and its King’s Counsel, Michael Sullivan, have already assumed representation of Kenya in the arbitral proceedings where they participated in a hearing on 18th March 2026, resulting in a Procedural Order on 25th March 2026. Thirdly, there is no subsisting decision to be stayed since the contract is signed and work has begun. The acts the Applicant seeks to stop have already occurred.
25. It is deposed that there are restrictions on changing counsel under Article 18.3 of the London Court of International Arbitration (LCIA) Rules, after proceedings commence without the Tribunal’s approval. That further, disrupting the current representation would likely cause procedural gaps and prejudice the State in the ongoing arbitration.
26. The Interested Party defends the merits of the tender evaluation, specifically regarding Criterion I(b) on firm’s experience and mounts a substantive defence arguing that the award was lawful and rational. It is deposed that the Review Board correctly interpreted that a law firm’s experience is derived from the collective expertise of its individual professionals and they had evidence of experience such as the fact that their partner, Ken Melly, was recorded as counsel representing the State in Cortec Mining Kenya Limited v. Republic of Kenya (ICSID Award) 4th October 2006 while the Applicant on their part failed to prove direct responsibility in the World Duty Free Company Limited v. Republic of Kenya (ICSID Award, 4 October 2006) since their firm’s name Okoth Kiplagat was merely noted as present in a footnote, not as acting counsel.
27. It is averred that the Interested Party was the lowest evaluated bidder, offering a cost saving of Kshs. 30,000,000 thereby upholding the constitutional principle of prudent and efficient use of public resources. That as such, the decision of the 1st Respondent was procedurally sound with the Evaluation Committee properly interpreting and applying the tender criteria and providing justification for the award.
28. It is further deposed that the arbitration involves potential liabilities in the tens of billions so that staying the representation would leave Kenya unrepresented in high-stakes proceedings. It is also argued that the State would lose fees already paid for work done and incur further costs in retendering. Additionally, the State faces both the risk of an adverse arbitral award and financial loss from disrupted legal services.
29. It is also argued that the Applicant seeks a stay of the Review Board’s decision against their appeal, that the said decision was a dismissal and therefore a negative order which as matter of settled law, could not be stayed. The Interested Party prays that the Application be dismissed with costs, arguing that it is an abuse of court process, statute-barred by the fact that the contract is already active, and is legally unsustainable as it attempts to appeal a merit-based decision disguised as a judicial review.
30. In rebuttal, the Applicant filed a further Affidavit dated 8th April 2026 deposed by Dr. Kenneth Kiplagat in which he asserts that their challenge is fundamentally grounded in administrative law, not an appeal on the merits of the tender. He affirms that the issues being raised concern the legality, rationality, and procedural propriety of the Review Board’s decision-making process.
31. The Applicant argues that the Court has a duty to scrutinize whether the Board’s interpretation of the Tender Document was lawful, rational, and consistent with the Constitution at Articles 10, 47, and 227 and the Public Procurement and Asset Disposal Act (PPADA). They add further that the core dispute is in the interpretation of Criterion 1(b) and argue that the Review Board and the Interested Party committed a fundamental error of law by conflating ‘Firm Experience’ with ‘Individual Advocate Experience’. It is asserted that Criterion 1(b) expressly required the Firm to demonstrate that it had directly handled qualifying arbitrations and added that the Board made extraneous considerations in unlawfully allowing the Interested Party to rely on the experience of a partner Mr. Ken Melly which was acquired while he was at a different law firm.
32. The Applicant argues that this interpretation renders Technical Criteria C which specifically evaluates individual staff qualifications redundant and that the Tender Document deliberately distinguishes between the experience of the firm - Criteria 1(a) & 1(b) - and the experience of individual staff Criteria C.
33. It is deposed that the Board’s approach violates Section 80 (2) and (3) of the PPADA, which mandates that evaluations be objective, quantifiable, and based strictly on the criteria set out in the Tender Document. That their interpretation effectively rewrites the Tender Document.
34. The Applicant vehemently opposes the claim that the matter is moot because the contract was executed on 17th March, 2026. It is argued that the Procuring Entity acted in blatant contravention of the mandatory standstill period under Section 175 of the PPADA by executing the contract before the statutory 14 days’ period had lapsed. That further to this, a contract executed pursuant to an unlawful procurement process and in breach of the mandatory standstill period is illegal, null and void from the outset.
35. The Applicant asserts that parties cannot defeat judicial review by rushing to implement decisions. The Court retains jurisdiction to issue orders of Certiorari to quash the decision and the illegal contract, and Prohibition to restrain further implementation. The Applicant also cites a specific incident during the Review Board hearing as evidence of bias and a breach of natural justice where he alleged that towards the close of the proceedings, the Chairperson asked the Interested Party’s counsel about the status/progress of the underlying arbitration an issue that was neither pleaded nor formed part of the matters for determination before the Board, and the Applicant was not invited to address it. The Applicant argues this indicates the Board prioritized ‘urgency’ over justice and tacitly encouraged the illegal execution of the contract during the standstill period.
36. The Applicant dismisses the Interested Party’s reliance on being the ‘lowest evaluated bidder’ and argues that price is only considered after strict compliance with mandatory technical criteria. It is asserted that an unlawfully evaluated bid cannot be validated simply because it is cheap. That accordingly, the procurement framework prohibits sacrificing competence and technical suitability for price. On the same breath, the Applicant argues that true public interest lies in upholding the rule of law and the integrity of the procurement process, not in sanctioning impunity and illegal contract signing.
37. The Applicant highlights that the 1st Respondent’s, the Review Board’s own affidavit supports their case because it admits that it relied on experience acquired by an advocate while at a different firm and attributed it to the Interested Party. That the said admission confirms that the evaluation was based on extraneous considerations and ‘third-party experience’ which violates Section 80 (2) of the PPADA and Clause 39.2 of the Tender Document prohibiting reliance on other firms’ experience.
38. The Applicant maintains that the impugned decision is ultra vires, irrational, and procedurally improper. They urge the Court to intervene decisively to quash the decision and the consequent illegal contract, arguing that allowing the status quo would encourage public bodies to violate the mandatory standstill period with impunity.
39. In a rejoinder, the Interested Party filed a Supplementary Affidavit again sworn by Eric Gumbo and dated 14th April 2026 in response to the Applicant’s further affidavit of 8th April 2026 in which the Interested Party attacks the validity of the Applicant’s Further Affidavit sworn on 8th April 2026 on the basis that it is procedurally flawed because it improperly introduces new facts and allegations that were not contained in the Originating Motion or the Supporting Affidavit. That this violates the settled principles governing further affidavits, which generally prohibit the introduction of new matters at that stage.
40. The Interested Party claims they will suffer prejudice because they have not had sufficient time or opportunity to respond to these new allegations or prepare for trial on these unexpected issues. The Interested Party specifically identifies and rebuts two major new issues raised by the Applicant one being the allegation of bias regarding the Review Board Chairperson and the allegation of illegal contract execution during the standstill Period.
41. On the first issue it is deposed that the Applicant alleged that the Review Board Chairperson improperly asked the Interested Party’s Counsel about the status of the arbitration proceedings, without inviting the Applicant to respond, thereby showing bias which allegation, they have dismissed as legally untenable and factually wrong. It is contended that the Applicant was present during the proceedings and failed to object or raise the issue of bias at the time. It is also alleged that the question was posed at the tail end of the proceedings to all counsel present, not just the Interested Party, to inform the Board regarding timelines and urgency. That this was merely a procedural housekeeping matter, not a substantive issue for determination and since the Applicant’s counsel was at liberty to address the issue but chose not to, they cannot now fault the Board for their own silence.
42. On the second allegation, it is deposed that the Applicant alleged that the execution of the contract during the 14-day period following the Review Board’s decision was unlawful under Section 175(1) of the Public Procurement and Asset Disposal Act (PPADA) but the Interested Party argues that Section 175(1) does not prohibit a procuring entity from implementing a tender after the Review Board has rendered its decision.
43. It is contended that the Act expressly suspends proceedings upon the filing of a Request for Review under Section 167, but it does not contain an express prohibition against implementation after the Board has delivered its Ruling. That consequently, the Respondents acted lawfully by implementing the Board’s orders, which directed the conclusion of the tender process. That further, the dismissal of the Request for Review is a negative order and does not operate as a stay or trigger a standstill period that prevents implementation.
44. The Interested Party urges that these new factual statements at paragraphs 17-23 of the Applicant’s affidavit should be expunged from the court record to prevent a miscarriage of justice and unfair prejudice.
45. Finally, the Applicant filed a further affidavit dated 1st April 2026 in response to the 2nd and 3rd Respondents’ Replying Affidavit of Dr. Chris Kiptoo. The Applicant dismisses the 2nd and 3rd Respondents’ justification for using the Specially Permitted Procurement Procedure (SPP) based on urgency and argues that the reasons for using a specific procurement method being urgency and national security, do not cure the fundamental defects in the evaluation process.
46. It is deposed in rebuttal that the central issue remains the illegality, irregularity, and irrationality of the 1st Respondent’s interpretation and application of Criterion 1(b). The Applicant reiterates that the entire procurement process is irreparably flawed because it was founded on an unlawful interpretation of the Tender Document and maintains that once the technical evaluation was conducted based on an unlawful criterion, the subsequent financial evaluation and the final award are also tainted and cannot stand.
47. The Applicant argues that the 1st Respondent effectively introduced a new standard which was that individual advocate experience equates to firm experience which was not contained in the Tender Document. That this amounts to an alteration of the tender document by the Board, an act that is ultra vires and unlawful.
48. The Applicant continues to contest the conflation of ‘Firm Experience’ with ‘Individual Experience’ and points out that the Respondents’ own affidavit confirms that the experience relied upon by the Interested Party was acquired while their key partner was employed at a different law firm (Iseme Kamau & Maema Advocates). It is argued that this experience could not legally be attributed to the Interested Party under criterion 1(b) on firm experience. The Applicant contends that this experience should only have been evaluated under Technical Criteria C which assesses individual staff qualifications, not under the firm-level criteria.
49. It is asserted that if evaluated correctly, the Interested Party would not have obtained the minimum pass mark under Criterion 1(b), as they lacked the requisite institutional experience distinct from their partners’ past employment.
50. The Applicant emphasizes that the Tender Document expressly prohibited bidders from relying on the experience of other firms. By allowing the Interested Party to claim experience acquired at a previous firm, the Board violated this express prohibition and failed to give effect to the mandatory requirements of the Tender Document and instead relied on extraneous considerations.
51. The Applicant maintains that the Board’s decision in dismissing their Request for Review was founded on a clear misinterpretation of the Tender Docume
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