1. The Application that is before this court for determination is the one dated 25th June 2025 wherein the Applicant seeks the following orders that:
1) An order of Certiorari be issued to bring into the High Court for purposes of being quashed the decision of the Public Procurement Administrative Review Board dated the 11thJune, 2025 in Review Application No. 63 of 2025 in regard to Tender No. KP1/9A.2/OT/027/ADM/24-25 for provision of cleaning services companywide for all bidders.
2) An order of Mandamus be issued compelling the Respondent to re-hear PPARB Application No. 63 of 2025 by a different panel of board members and consider all the grounds raised therein by the Applicant in the Request for Review.
3) An order of prohibition be issued prohibiting the 1st and 2ndInterested Parties from awarding Tender No. KP1/9A.2/OT/027/ADM/24-25 for provision of cleaning services companywide for all bidders and signing any contract with the 3rd,4th, 5th, 6th and 7th Interested Parties pending re-hearing and determination of PPARB Application No. 63 of 2025
4) Such further and other reliefs as this Honourable Court may deem just and expedient to grant.
5) Costs of this Application be provided for.
The Applicants Case;
2. On 21st May 2025, the Applicant filed a Request for Review dated 21st May 2025 against the Interested Parties seeking for amongst other orders, to nullify the decision of the 1st and 2nd Interested Parties dated 11th June, 2025 awarding Tender No. KP1/9A.2/OT/027/ADM/24-25 to the 3rd, 4th, 5th, 6th, and 7th Interested Parties.
3. The Request for Review Application was premised on breach by the procuring entity of sections 66 and 79 of the PPADA specifically:
a. The procuring entity breached section 66 of the PPADA and the tender requirements by awarding the tender to the 3rd and 6th Interested Parties who are affiliates, by placing two independent tenders in the same tender process thus gaining a competitive advantage over the Applicant and other bidders.
b. The procuring entity breached section 79 of the PPADA and the tender requirements by awarding the tender to the 3rd, 4th and 7th Interested Parties at a price so low that is incapable of barely sustaining the labour costs of the subject tender.
c. The procuring entity breached section 79 of the PPADA and the tender requirements by admitting bid documents of some bidders outside the tender opening period, specifically the bid by the 7th Interested Party.
4. The Applicant came to learn through the notification of intention to award the tender dated 30th April 2025 that the 1st and 2nd Interested Parties had breached the Constitution and the Act by awarding to the 3rd, 4th, 5th, 6th, and 7th Interested Parties.
5. The Applicant aggrieved by this decision moved the Respondent on 21st May 2025 for the review of the 1st and 2nd Respondents decision awarding the tender to the 3rd, 4th, 5th, 6th, and 7th Interested Parties
6. The 7th Interested Party in addition to its Response filed a Notice of Preliminary Objection in opposition to the Request for Review.
7. The Applicant further filed a Further Affidavit dated 3rd June, 2025 in reply to the responses filed by the Interested Parties as required by Regulation 209 (3) of PPAD.
8. On 11th June, 2025, the Respondent delivered its decision and upheld the Preliminary Objection raised by the 7th Interested Party and proceeded to strike out the Applicant’s Request for Review.
9. It is its case that the decision was irrational, unfair, violated the Applicant’s right to legitimate expectation and was materially influenced by an error of law.
Particulars of Error of law, Irrationality, Unreasonableness and Unfairness;
a) The Respondent at paragraph 99 of its decision found that the Applicant failed to plead loss or damage and therefore lacked the locus standi to bring the Request for Review. The Applicant states that this finding was irrational, unreasonable, and unfair and based on misinterpretation of the provisions of section 167(1) PPADA.
b) The Applicant states that section 167(1) of the Act does not require a candidate or a tenderer to particularize his alleged loss or damage in the exact words used in the Act.
c) The findings/determinations of the Respondent in the impugned decision are not rationally connected to the purpose of the empowering provisions of Articles 10, 47, 159(2) (d), 201, 227(1) of the Constitution of Kenya and the principles articulated under section 3 of the Public Procurement and Asset Disposal Act (PPADA). The Respondent failed to consider the obvious fact that violation of the law need not have a monetary value so as to demonstrate loss or damage.
d) It is apparent from the above chronology that the decision of the Respondent was irrational, influenced by an error of law, it took in irrelevant considerations and acted unfairly towards the Applicant by finding that it had no locus standi to bring the Request for Review.
Particulars of Illegality, Irrationality of the Respondent and lack of proportionality to the Applicant’s interests affected
a) In striking out the Applicant’s Request for Review yet neither the PPADA nor the body of the Regulations thereunder anticipate striking out of the Request for Review by the Applicant, the Respondent violated section 7 (2) (l) of the Fair Administrative Action Act in that its draconian decision of striking out the Request for Review was not proportionate to the interests and rights of the Applicant that were being affected.
b) Therefore, the Respondent was irrational and failed to consider that its actions of striking out the Applicant’s Request for Review on this account were not proportionate to the interests and rights of the Applicant that had been affected contrary to section 7(2) (l) of the Fair Administrative Action Act.
10. It is argued that Section 175(1) of the Public Procurement and Asset Disposal Act, these proceedings must be commenced within 14 days from the date the Respondent made a decision i.e. 11th June, 2025 otherwise the decision of the Respondent shall become final and binding on the parties.
11. There is a likelihood that the 1st and 2nd Interested Parties may move at any time from now to sign a contract with the 3rd, 5th, 5th, 6th and 7th Interested Parties which if it crystallizes, will render this Application nugatory. It is therefore, imperative that a stay order be issued pending the hearing and determination of the judicial review Application.
12. The Respondent’s conduct amounts to a breach of the Applicant’s legitimate expectation and fair administrative action as provided under Article 47 of the Constitution.
13. The Applicant is apprehensive that if the orders sought are not granted, the impugned decision shall be executed without regard to the Applicant’s rights.
14. The wider interests of justice will best be served if the orders sought herein above are granted. No prejudice will be suffered by the Respondent or the Interested Parties if the orders sought herein are granted.
The Respondents Case;
15. That on 21st May 2025, Peesam Limited, the Applicant herein, filed Request for Review Application No. 63 of 2025 before the Respondent seeking the following orders:
a) The Letters of Award addressed to M/S Babs Facilities Ltd, M/S Jextreem Logistics Co. Limited, M/S Butterfly Facilities and Hygiene Ltd and M/S Joymacx Enterprises with respect to the tender for Provision of cleaning services companywide for all bidders – Tender No. KPI/9A.2/0T/027/ADM/24-25 (hereinafter the “tender”) by the First Respondent be annulled in their entirety;
b) The Procuring Entity be directed to re-evaluate the tender in its entirety from the technical stage/mandatory evaluation;
c) The Procuring Entity be directed to eliminate the First and Fourth Interested Parties from further tender evaluation on the basis that the aforesaid firms are affiliated;
d) The Procuring Entity be directed to re-evaluate the tenders at the financial evaluation stage and consider only tenders which have met the financial thresh hold as par the tender evaluation criteria;
e) Any other orders that the Honourable Board may deem just and fit in the circumstances.
16. On 11th June 2025, the Respondent made the following orders with respect to Request for Review No. 63 of 2025:
a) The Request for Review dated 21st May 2025 is hereby struck out;
b) The Accounting Officer of the Kenya Power & Lighting Company PLC is hereby directed to oversee the tender proceedings for TENDER NO. KP1/9A.2/OT/063/ADM/24- 25 – For Provision of Cleaning Services to Northeastern Region (YWPWD) to their logical and lawful conclusion; and
c) Each party shall bear its own costs of the proceedings.
17. The Respondent, in its decision, duly considered all the parties' pleadings, documents, written and oral submissions, the list and bundle of authorities, as well as the confidential documents submitted to the Board pursuant to Section 67(3)(e) of the Act.
18. The Respondent found that that it had no jurisdiction considering that the Applicant did not plead that it had suffered or risks suffering loss or damage due to the breach of a duty imposed on the procuring entity by the Act in line with Section 167(1) of the Act.
19. The Respondent also noted that it undertook a holistic review of all the pleadings filed by the Applicant and observed that, at no point, did the Applicant even remotely assert that it had suffered, or stood to suffer, any loss as a result of the alleged breach by the procuring entity.
20. The Respondent, in its decision, considered all the parties' pleadings, submissions, oral arguments, and confidential documents.
21. The Respondent acted within the confines of the Constitution, the Act, the Regulations, 2020, the Fair Administrative Actions Act, and the rule of law in its findings in the hearing of Request for Review No. 63 of 2025.
22. The Respondent’s findings in Request for Review No. 63 of 2025 duly took into account the provisions of Article 227 of the Constitution, the Act, and the Public Procurement and Asset Disposal (Amendment) Regulations, 2020.
23. The Applicant has failed to demonstrate any elements of illogicality, illegality, irrationality, procedural impropriety, or unfairness in the manner in which the Respondent considered and interrogated the evidence, documents, pleadings, and information before it in arriving at its decision in Request for Review No. 63 of 2025.
24. In the event this Honourable Court finds that the Exparte Applicant’s Application is merited, we respectfully urge the Court, in accordance with Section 175(7) of the Act, to disallow the prayer on costs.
The 1st & 2nd Interested Parties’ Replying Affidavit
25. It is their case that the decision of the Respondent does not disclose any irrelevant considerations, error of law, irrationality, unfairness and/or unreasonableness as alleged by the Exparte Applicant or at all, and neither does it violate the Exparte Applicant’s legitimate expectations as alleged or at all and the same was the fairest decision in the circumstances of this case.
26. It is their case that in considering the Constitution of Kenya, 2010; the Energy Act, 2019; Public Procurement and Asset Disposal Act, 2015; Public Procurement and Asset Disposal Regulations, 2020; the Public Procurement and Disposal (Preference and Reservations) Regulations, 2011 and the Fair Administrative Action Act, 2016 and all the prevailing circumstances, the Respondent’s decision is both legally and factually correct, and upholds the provisions of the Constitution.
27. The Respondent struck out the Exparte Applicant’s Request for Review on the basis that it had no jurisdiction to hear and determine the same because the latter lacked locus standi for failing to plead that it has suffered, or is at risk of suffering, any loss as a result of the alleged breach by the 1st & 2nd Interested Parties, in accordance with section 167 of the Public Procurement and Asset Disposal Act, 2015 (PPADA). (see page 35 of the decision)
28. To invoke the jurisdiction of the PPARB under section 167 of the PPADA, a candidate or tenderer must show that they have suffered or stand to suffer loss or damage because of a procuring entity’s failure to comply with the procurement laws.
29. A candidate or tenderer who has not pleaded suffering or a risk of suffering loss and damage because of a breach of duty by a procuring entity has no locus standi to seek administrative review of the procuring entity’s decision.
30. Reliance is placed in the case of James Oyondi t/a Betoyo Contractors & another vs Elroba Enterprises Limited & 8 others [2019] eKLR)
31. The Exparte Applicant has neither pleaded nor demonstrated that it suffered or was at risk of suffering any loss or damage because of the alleged breach of procurement laws.
32. When the Respondent asked the Exparte Applicant to elaborate on this issue, the answer was that it was a tenderer challenging the evaluation process and that was sufficient to demonstrate that it was adversely affected. (see paragraphs 69 & 86 of the Decision)
33. The Respondent reviewed the PPADA’s requirement to plead loss or damage vis-à-vis the Exparte Applicant’s pleadings and concluded that the Exparte Applicant lacked the requisite locus standi because it failed to plead that it had suffered or was at risk of suffering any loss as a result of the alleged breach by the 1st & 2nd Interested Parties. (see paragraphs 88-91, 95-99 & 102 of the decision)
34. The Respondent’s decision is/was relevant, rational, reasonable and did not violate the Exparte Applicant’s legitimate expectation as alleged or at all.
35. The Exparte Applicant cannot have a legitimate expectation over a matter that goes against the express spirit or letter of the law.
36. The Respondent rendered no finding on the propriety or impropriety of the tender process, and it would have been ultra vires for it to do so after finding that it lacked jurisdiction
37. The Application is gravely incompetent, bad in law, lacks merit, incurably defective, irregular and constitutes unmitigated abuse of the Honorable Court.
The 3rd Interested Party’s case;
38. It argues that The Public Procurement Review Board delivered and dated 11th June 2025 was fair, just and was premised on proper Application and interpretation of the law and the facts, and as such, ought not to be subjected to judicial review proceedings as intended by the Applicant.
39. The Notice of Motion Application dated 25th June 2025 raises no arguable issues of law and fact that would warrant the Honourable Court’s attention.
40. The Application is based on wrong interpretation of the law, speculation and the same falls short of an arguable case with any probability of success.
41. Article 227 of the Constitution of Kenya 2010 demands that when State organ or any other public entity contracts for goods or services, it shall do so in accordance with a system that is fair, equitable, transparent, competitive and cost-effective. The decision of the Board issued and dated 11th June 2025 affirmed that indeed the procuring entity complied with the law, an out of the tenderers who submitted their bids, it is only the Applicant herein who is aggrieved and determined to subject the parties to endless litigation.
42. The Review Board granted parties to the Application for review dated 21st May 2025 an equal opportunity to present their cases.
43. The Applicant has not contested the fact that it failed to convince the Review Board on the issue of suffering loss or being at risk, and this is prima facie on its pleadings filed before the Honourable Court.
44. The Applicant principally premised its Application on the fact that as a tenderer, it automatically stands to suffer loss or damage.
45. The Exparte Applicant appeared to be a party on a fishing expedition, and the Review Board had no alternative but to disallow its request for review.
46. The Respondent rightfully struck out the Applicant’s Application for review on the fact that the Applicant failed to meet the prerequisite conditions for admission of Application for review, that is, the requirement to prove that a party had suffered loss or is at the risk of suffering loss or damage, and it based on this basis that the Respondent held that it had no jurisdiction to entertain the Application for review dated 21st May 2025.
47. It is a statutory requirement that a party seeking to invoke the jurisdiction of the Review Board as stipulated by the provisions of Section 167 is under obligation to prove that they have suffered and or stand to suffer loss or damage occasioned by the failure to abide by the procurement laws. The Applicant has not established that it suffered any loss or damage as a result of the decision of the Respondent.
48. The Applicant is engaged in forum shopping having failed to convince the PPRB with its Application for review for the obvious reasons that the Applicant has no justifiable reasons for challenging the decision of the procuring entity.
49. It argues that the Application before the Honourable Court is unmerited since it has been filed by a party which has benefitted from the same procurement process it intends to challenge.
50. The decision dated of the Respondent dated 11th June 2025 was fair and just on the basis that the Review Board considered the evidence adduced by all parties before the rendering the same.
51. The Respondent undertook a holistic review of all the pleadings filed by the Applicant and observed that the Applicant failed to even remotely assert that it had suffered, or stood to suffer, any loss as a result of the breach of the procurement laws by the procuring entity. This is clearly captured in paragraph 96 to 99 of the decision dated 11th June 2025.
The 6th Interested Party case;
52. It argues that The Applicant does not contest the fact that it did not specifically plead that it had suffered loss or risked suffering loss and damage in its request for review Application filed at the Review Board.
53. At paragraph 55 of the Respondent’s decision, it is clear that the Respondent’s jurisdiction was challenged by the 7th Interested Party who had raised a preliminary objection; that that the Applicant had neither pleaded nor demonstrated that it had suffered, or was at risk of suffering, any loss or damage as a result of the alleged breach of procurement procedures and as such the Board lacked jurisdiction.
54. The Court of Appeal in the case of James Oyondi t/a BetoyoContractors & another v. Elroba Enterprises Limited & 8 others [2019] eKLR, where the Court stated that it is a threshold requirement for anyone filing a review before the Board in terms of section 167(1) of the PPADA to plead to suffer loss or damage or likely to have suffered loss or damage as a result of breach of any duty by the procuring entity.
55. At paragraph 69 of the Respondent’s decision, the Respondent sought clarification from the Applicant’s counsel on why the Applicant had not expressly stated that it would suffer loss if the award was not granted in its favour. In response, Counsel submitted that the Applicant’s participation as a bidder, coupled with its contention that the evaluation process was conducted unfairly, was sufficient to demonstrate that the Applicant had been adversely affected, thus justifying its appearance before the Board.
56. Reliance is placed in the case of Fidhow v Registrar of Births and Deaths & another (Application E111 of 2023) [2024] KEHC 10161 (KLR) (Judicial Review) where it was held that;
“The need to identify and express accurately the possible grounds for judicial review is not simply a matter of analytical nicety. It is one of practical necessity”
57. In the statutory statement the Applicant states that section 167(1) of the Act does not require a candidate or a tenderer to particularize his alleged loss or damage in the exact words used in the Act.
58. It is its case that the Applicant seems to be unaware of the position of the law established by the Court of Appeal in James Oyondi t/a Betoyo Contractors (supra) that a candidate or a tenderer who has not pleaded suffering or risked suffering loss and damage as a result of breach of duty by the procuring entity has no locus standi to seek administrative review of the procuring entity’s decision.
59. Jurisdiction is a fundamental issue and can even be raised by the court suo moto. Further I am advised that the court in Republic v Public Procurement Administrative Review Board & 2 others Ex parte Numerical Machining Complex Limited [2016] held that;
“Where the law exhaustively provides for jurisdiction or authority, the body or authority must operate within those limits and ought not expand its jurisdiction through administrative craft or innovation.”
60. The Board correctly applied the law in its finding by stating that the Applicant herein lacked locus standi and thus could not be heard.
61. The Respondent would be committing an error of law and arriving at an illegal decision if it were to entertain the Applicant’s review when it had been demonstrated that the Applicant lacked locus standi.
62. In the case of Pastoli v Kabale District Local Government Council and Others [2008] 2 EA 300 clearly provides the position of the law that acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality.
63. On the issue of legitimate expectation, the principles were explained in Harry Woolf, Jeffrey Jowell and Andrew Le Sueur at page 609 of the 6th Edition of De Smith’s Judicial Review and quoted in the case of Republic v Kenya Revenue Authority Exparte Shake Distributors Limited HC Misc Civil Application No 359 of 2012;
“It follows therefore that the cornerstone of legitimate expectation is a promise made to a party by a public body that it will act or not act in a certain manner. For the promise to hold, the same must be made within the confines of law. A public body cannot make a promise which goes against the express letter of the law.”
64. In the case of Republic v Principle Secretary, Ministry of Transport, Housing and Urban Development Exparte Soweto Residents Forum CBO [2019] eKLR, the Honourable Court cited with approval the position in H. W. R. Wade & C. F. Forsyth [3] at pages 449 to 450, that;
“An expectation whose fulfillment requires that a decision-maker should make an unlawful decision, cannot be a legitimate expectation”
65. In Republic v Public Procurement Administrative Review Board & 2 others Exparte Pelt Security Services Limited [2018] eKLR to mean that;
“Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards”
66. As far as the ground of irrationality is concerned, the Review Board’s decision is not so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.
67. The Review Board opted to down its tools following the Court of Appeal judgment that an Applicant had no locus standi to file a request for review where it did not plead suffering or risks suffering loss and damage due to a breach by a procuring entity.
68. In response to the averments that the Respondent sanitized and validated a preferential and skewed evaluation process the 6th Interested Party states that the Applicant is attempting to reopen the matter and have a second bite at the cherry which is akin to an appeal.
69. The arguments on the evaluation process were raised and considered by the Board.
70. The Applicant is however inviting this court to re-consider the same issues which amounts to inviting this court to engage in a merit review which is an appellate function hence outside the scope of Judicial Review jurisdiction.
71. The finding that the board lacked jurisdiction to entertain the review for lack of locus standi was proper and within the confines of the law.
72. The Review on a writ of certiorari is not a matter of right, but of judicial discretion. A petition for a writ of certiorari will be granted only for compelling reasons. Certiorari is a discretionary remedy, which a court may refuse to grant even when the requisite grounds for it exist.
73. The Applicant has not demonstrated that the Respondent’s decision was tainted with illegality, irrationality or procedural impropriety to warrant this court to exercise its judicial review discretion.
74. Reliance is placed in the case of Republic v Chairman, Rent Restriction Tribunal; Nzaro (Interested Party); Wambua(Exparte) (Judicial Review Application 1 of 2021) [2023] KEELC 17988 (KLR) (23 May 2023) (Judgment) where it was held that Certiorari and prohibition frequently go hand in hand. In the circumstances if certiorari has not been met then prohibition ought to fail.
The 7th Interested Parties Case;
75. It is its case that the Application is misconceived, severely lacking in merit and ought to be dismissed. On 21st May 2025, the Exparte Applicant filed a Request for Review of even date before the Public Procurement Administrative Review Board (PPRB ‘the Respondent.’)
76. It filed a Memorandum of Response and a Notice of Preliminary Objection dated 3rd June 2025 in which we put forward that the Exparte Applicant lacked the locus standi to initiate the Request for Review as required under Section 167(1) of the Public Procurement and Asset Disposal Act.
77. The Preliminary Objection was based on the grounds that the Applicant had neither pleaded nor demonstrated that it had suffered, or was at risk of suffering, any loss or damage as a result of the alleged breach of procurement procedures.
78. In the decision dated 11th June 2025 the Respondent held that the Exparte Applicant lacked the requisite locus standi under Section 167(1) of the Public Procurement and Asset Disposal Act to institute or sustain proceedings for review as in all the pleadings filed by the Exparte Applicant before the Respondent, at no point, did the Applicant even remotely assert that it had suffered, or stood to suffer, any loss as a result of the alleged breach by the Respondents. Consequently, the Respondent had no jurisdiction to determine the matter.
79. The Exparte Applicant has failed to demonstrate any elements of illogicality, illegality, irrationality, procedural impropriety, or unfairness in the manner in which the Respondent considered and interrogated the evidence, documents, pleadings, and information before it in arriving at its Decision in Request for Review No. 63 of 2025.
80. The Judicial Review Application presently before the court is actually an appeal masquerading as a judicial review Application.
81. According to it,a close interrogation of the Exparte Applicant’s statutory statement reveals that the Exparte Applicant does not dispute it in proceedings before the PPRB it had not pleaded the loss it had suffered, stood to suffer, or any loss as a result of the alleged breach by the Respondents.
82. At Paragraph 16 of the Statutory Statement the Exparte Applicant asserts that section 167(1) of the Act does not require a candidate or a tenderer to particularize his alleged loss or damage in the exact words used in the Act.
83. In order to file a review Application, a candidate or tenderer must at the very least claim to have suffered or to be at the risk of suffering loss or damage.
84. It relied on the Court of Appeal in the case of James Oyondi t/a Betoyo Contractors & another v. Elroba Enterprises Limited & 8 others [2019] eKLR, where the Court stated that upon a plain reading of Section 167(1) of the Act it was clear that in order to file a review Application, a candidate or tenderer must at the very least claim to have suffered or to be at the risk of suffering loss or damage.
The Applicant’s submissions
85. It submits that it has been held that for a judicial review court to determine whether an administrative body or a body exercising a quasi-judicial authority acted reasonably, the court must examine some measure of merit analysis.
86. Reliance is placed in the Court of Appeal in the case of Judicial Service Commission & another v Njora, Civil Appeal 486 of 2019[2021]KECA 366 (KLR);
“44. To my mind, even fealty to the traditional “process-only” approach to judicial review must involve a measure of merit analysis. How would a court determine whether an employer acted reasonably and fairly “in the circumstances of the case”, without examining thosecircumstances and measuring them against what isreasonable or fair, and arriving at the conclusion that the action taken was within or outside the bond or range ofreasonable responses? I think that it would be unrealisticfor a court to engage in a dry and formalistic approach,steeped in process alone, while eschewing a measure ofmerit examination. Such merit review is a sine qua non of meaningful engagement with the question of reasonableness and fairness as the antidote to the arbitrary,capricious or illegal conduct of authorities that invite judicial review in the first place.
50. We emphatically find and hold that there is nothing doctrinally or jurisprudentially amiss or erroneous in ajudge’s adoption of a merit review in judicial reviewproceedings. To the contrary, the error would lie in a failure to do so, out of a misconception that judicial review is limited to a dry or formalistic examination of the process while strenuously and artificially avoiding merit. That path only leads to intolerable superficiality.” {Emphasis added}
87. The Ex parte Applicant submits that the Respondent acted on an error of law, unreasonably, irrationally, illegally and unfairly.They submit that The Respondent in its decision found that the Applicant failed to plead by
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1) An order of Certiorari be issued to bring into the High Court for purposes of being quashed the decision of the Public Procurement Administrative Review Board dated the 11thJune, 2025 in Review Application No. 63 of 2025 in regard to Tender No. KP1/9A.2/OT/027/ADM/24-25 for provision of cleaning services companywide for all bidders.
2) An order of Mandamus be issued compelling the Respondent to re-hear PPARB Application No. 63 of 2025 by a different panel of board members and consider all the grounds raised therein by the Applicant in the Request for Review.
3) An order of prohibition be issued prohibiting the 1st and 2ndInterested Parties from awarding Tender No. KP1/9A.2/OT/027/ADM/24-25 for provision of cleaning services companywide for all bidders and signing any contract with the 3rd,4th, 5th, 6th and 7th Interested Parties pending re-hearing and determination of PPARB Application No. 63 of 2025
4) Such further and other reliefs as this Honourable Court may deem just and expedient to grant.
5) Costs of this Application be provided for.
The Applicants Case;
2. On 21st May 2025, the Applicant filed a Request for Review dated 21st May 2025 against the Interested Parties seeking for amongst other orders, to nullify the decision of the 1st and 2nd Interested Parties dated 11th June, 2025 awarding Tender No. KP1/9A.2/OT/027/ADM/24-25 to the 3rd, 4th, 5th, 6th, and 7th Interested Parties.
3. The Request for Review Application was premised on breach by the procuring entity of sections 66 and 79 of the PPADA specifically:
a. The procuring entity breached section 66 of the PPADA and the tender requirements by awarding the tender to the 3rd and 6th Interested Parties who are affiliates, by placing two independent tenders in the same tender process thus gaining a competitive advantage over the Applicant and other bidders.
b. The procuring entity breached section 79 of the PPADA and the tender requirements by awarding the tender to the 3rd, 4th and 7th Interested Parties at a price so low that is incapable of barely sustaining the labour costs of the subject tender.
c. The procuring entity breached section 79 of the PPADA and the tender requirements by admitting bid documents of some bidders outside the tender opening period, specifically the bid by the 7th Interested Party.
4. The Applicant came to learn through the notification of intention to award the tender dated 30th April 2025 that the 1st and 2nd Interested Parties had breached the Constitution and the Act by awarding to the 3rd, 4th, 5th, 6th, and 7th Interested Parties.
5. The Applicant aggrieved by this decision moved the Respondent on 21st May 2025 for the review of the 1st and 2nd Respondents decision awarding the tender to the 3rd, 4th, 5th, 6th, and 7th Interested Parties
6. The 7th Interested Party in addition to its Response filed a Notice of Preliminary Objection in opposition to the Request for Review.
7. The Applicant further filed a Further Affidavit dated 3rd June, 2025 in reply to the responses filed by the Interested Parties as required by Regulation 209 (3) of PPAD.
8. On 11th June, 2025, the Respondent delivered its decision and upheld the Preliminary Objection raised by the 7th Interested Party and proceeded to strike out the Applicant’s Request for Review.
9. It is its case that the decision was irrational, unfair, violated the Applicant’s right to legitimate expectation and was materially influenced by an error of law.
Particulars of Error of law, Irrationality, Unreasonableness and Unfairness;
a) The Respondent at paragraph 99 of its decision found that the Applicant failed to plead loss or damage and therefore lacked the locus standi to bring the Request for Review. The Applicant states that this finding was irrational, unreasonable, and unfair and based on misinterpretation of the provisions of section 167(1) PPADA.
b) The Applicant states that section 167(1) of the Act does not require a candidate or a tenderer to particularize his alleged loss or damage in the exact words used in the Act.
c) The findings/determinations of the Respondent in the impugned decision are not rationally connected to the purpose of the empowering provisions of Articles 10, 47, 159(2) (d), 201, 227(1) of the Constitution of Kenya and the principles articulated under section 3 of the Public Procurement and Asset Disposal Act (PPADA). The Respondent failed to consider the obvious fact that violation of the law need not have a monetary value so as to demonstrate loss or damage.
d) It is apparent from the above chronology that the decision of the Respondent was irrational, influenced by an error of law, it took in irrelevant considerations and acted unfairly towards the Applicant by finding that it had no locus standi to bring the Request for Review.
Particulars of Illegality, Irrationality of the Respondent and lack of proportionality to the Applicant’s interests affected
a) In striking out the Applicant’s Request for Review yet neither the PPADA nor the body of the Regulations thereunder anticipate striking out of the Request for Review by the Applicant, the Respondent violated section 7 (2) (l) of the Fair Administrative Action Act in that its draconian decision of striking out the Request for Review was not proportionate to the interests and rights of the Applicant that were being affected.
b) Therefore, the Respondent was irrational and failed to consider that its actions of striking out the Applicant’s Request for Review on this account were not proportionate to the interests and rights of the Applicant that had been affected contrary to section 7(2) (l) of the Fair Administrative Action Act.
10. It is argued that Section 175(1) of the Public Procurement and Asset Disposal Act, these proceedings must be commenced within 14 days from the date the Respondent made a decision i.e. 11th June, 2025 otherwise the decision of the Respondent shall become final and binding on the parties.
11. There is a likelihood that the 1st and 2nd Interested Parties may move at any time from now to sign a contract with the 3rd, 5th, 5th, 6th and 7th Interested Parties which if it crystallizes, will render this Application nugatory. It is therefore, imperative that a stay order be issued pending the hearing and determination of the judicial review Application.
12. The Respondent’s conduct amounts to a breach of the Applicant’s legitimate expectation and fair administrative action as provided under Article 47 of the Constitution.
13. The Applicant is apprehensive that if the orders sought are not granted, the impugned decision shall be executed without regard to the Applicant’s rights.
14. The wider interests of justice will best be served if the orders sought herein above are granted. No prejudice will be suffered by the Respondent or the Interested Parties if the orders sought herein are granted.
The Respondents Case;
15. That on 21st May 2025, Peesam Limited, the Applicant herein, filed Request for Review Application No. 63 of 2025 before the Respondent seeking the following orders:
a) The Letters of Award addressed to M/S Babs Facilities Ltd, M/S Jextreem Logistics Co. Limited, M/S Butterfly Facilities and Hygiene Ltd and M/S Joymacx Enterprises with respect to the tender for Provision of cleaning services companywide for all bidders – Tender No. KPI/9A.2/0T/027/ADM/24-25 (hereinafter the “tender”) by the First Respondent be annulled in their entirety;
b) The Procuring Entity be directed to re-evaluate the tender in its entirety from the technical stage/mandatory evaluation;
c) The Procuring Entity be directed to eliminate the First and Fourth Interested Parties from further tender evaluation on the basis that the aforesaid firms are affiliated;
d) The Procuring Entity be directed to re-evaluate the tenders at the financial evaluation stage and consider only tenders which have met the financial thresh hold as par the tender evaluation criteria;
e) Any other orders that the Honourable Board may deem just and fit in the circumstances.
16. On 11th June 2025, the Respondent made the following orders with respect to Request for Review No. 63 of 2025:
a) The Request for Review dated 21st May 2025 is hereby struck out;
b) The Accounting Officer of the Kenya Power & Lighting Company PLC is hereby directed to oversee the tender proceedings for TENDER NO. KP1/9A.2/OT/063/ADM/24- 25 – For Provision of Cleaning Services to Northeastern Region (YWPWD) to their logical and lawful conclusion; and
c) Each party shall bear its own costs of the proceedings.
17. The Respondent, in its decision, duly considered all the parties' pleadings, documents, written and oral submissions, the list and bundle of authorities, as well as the confidential documents submitted to the Board pursuant to Section 67(3)(e) of the Act.
18. The Respondent found that that it had no jurisdiction considering that the Applicant did not plead that it had suffered or risks suffering loss or damage due to the breach of a duty imposed on the procuring entity by the Act in line with Section 167(1) of the Act.
19. The Respondent also noted that it undertook a holistic review of all the pleadings filed by the Applicant and observed that, at no point, did the Applicant even remotely assert that it had suffered, or stood to suffer, any loss as a result of the alleged breach by the procuring entity.
20. The Respondent, in its decision, considered all the parties' pleadings, submissions, oral arguments, and confidential documents.
21. The Respondent acted within the confines of the Constitution, the Act, the Regulations, 2020, the Fair Administrative Actions Act, and the rule of law in its findings in the hearing of Request for Review No. 63 of 2025.
22. The Respondent’s findings in Request for Review No. 63 of 2025 duly took into account the provisions of Article 227 of the Constitution, the Act, and the Public Procurement and Asset Disposal (Amendment) Regulations, 2020.
23. The Applicant has failed to demonstrate any elements of illogicality, illegality, irrationality, procedural impropriety, or unfairness in the manner in which the Respondent considered and interrogated the evidence, documents, pleadings, and information before it in arriving at its decision in Request for Review No. 63 of 2025.
24. In the event this Honourable Court finds that the Exparte Applicant’s Application is merited, we respectfully urge the Court, in accordance with Section 175(7) of the Act, to disallow the prayer on costs.
The 1st & 2nd Interested Parties’ Replying Affidavit
25. It is their case that the decision of the Respondent does not disclose any irrelevant considerations, error of law, irrationality, unfairness and/or unreasonableness as alleged by the Exparte Applicant or at all, and neither does it violate the Exparte Applicant’s legitimate expectations as alleged or at all and the same was the fairest decision in the circumstances of this case.
26. It is their case that in considering the Constitution of Kenya, 2010; the Energy Act, 2019; Public Procurement and Asset Disposal Act, 2015; Public Procurement and Asset Disposal Regulations, 2020; the Public Procurement and Disposal (Preference and Reservations) Regulations, 2011 and the Fair Administrative Action Act, 2016 and all the prevailing circumstances, the Respondent’s decision is both legally and factually correct, and upholds the provisions of the Constitution.
27. The Respondent struck out the Exparte Applicant’s Request for Review on the basis that it had no jurisdiction to hear and determine the same because the latter lacked locus standi for failing to plead that it has suffered, or is at risk of suffering, any loss as a result of the alleged breach by the 1st & 2nd Interested Parties, in accordance with section 167 of the Public Procurement and Asset Disposal Act, 2015 (PPADA). (see page 35 of the decision)
28. To invoke the jurisdiction of the PPARB under section 167 of the PPADA, a candidate or tenderer must show that they have suffered or stand to suffer loss or damage because of a procuring entity’s failure to comply with the procurement laws.
29. A candidate or tenderer who has not pleaded suffering or a risk of suffering loss and damage because of a breach of duty by a procuring entity has no locus standi to seek administrative review of the procuring entity’s decision.
30. Reliance is placed in the case of James Oyondi t/a Betoyo Contractors & another vs Elroba Enterprises Limited & 8 others [2019] eKLR)
31. The Exparte Applicant has neither pleaded nor demonstrated that it suffered or was at risk of suffering any loss or damage because of the alleged breach of procurement laws.
32. When the Respondent asked the Exparte Applicant to elaborate on this issue, the answer was that it was a tenderer challenging the evaluation process and that was sufficient to demonstrate that it was adversely affected. (see paragraphs 69 & 86 of the Decision)
33. The Respondent reviewed the PPADA’s requirement to plead loss or damage vis-à-vis the Exparte Applicant’s pleadings and concluded that the Exparte Applicant lacked the requisite locus standi because it failed to plead that it had suffered or was at risk of suffering any loss as a result of the alleged breach by the 1st & 2nd Interested Parties. (see paragraphs 88-91, 95-99 & 102 of the decision)
34. The Respondent’s decision is/was relevant, rational, reasonable and did not violate the Exparte Applicant’s legitimate expectation as alleged or at all.
35. The Exparte Applicant cannot have a legitimate expectation over a matter that goes against the express spirit or letter of the law.
36. The Respondent rendered no finding on the propriety or impropriety of the tender process, and it would have been ultra vires for it to do so after finding that it lacked jurisdiction
37. The Application is gravely incompetent, bad in law, lacks merit, incurably defective, irregular and constitutes unmitigated abuse of the Honorable Court.
The 3rd Interested Party’s case;
38. It argues that The Public Procurement Review Board delivered and dated 11th June 2025 was fair, just and was premised on proper Application and interpretation of the law and the facts, and as such, ought not to be subjected to judicial review proceedings as intended by the Applicant.
39. The Notice of Motion Application dated 25th June 2025 raises no arguable issues of law and fact that would warrant the Honourable Court’s attention.
40. The Application is based on wrong interpretation of the law, speculation and the same falls short of an arguable case with any probability of success.
41. Article 227 of the Constitution of Kenya 2010 demands that when State organ or any other public entity contracts for goods or services, it shall do so in accordance with a system that is fair, equitable, transparent, competitive and cost-effective. The decision of the Board issued and dated 11th June 2025 affirmed that indeed the procuring entity complied with the law, an out of the tenderers who submitted their bids, it is only the Applicant herein who is aggrieved and determined to subject the parties to endless litigation.
42. The Review Board granted parties to the Application for review dated 21st May 2025 an equal opportunity to present their cases.
43. The Applicant has not contested the fact that it failed to convince the Review Board on the issue of suffering loss or being at risk, and this is prima facie on its pleadings filed before the Honourable Court.
44. The Applicant principally premised its Application on the fact that as a tenderer, it automatically stands to suffer loss or damage.
45. The Exparte Applicant appeared to be a party on a fishing expedition, and the Review Board had no alternative but to disallow its request for review.
46. The Respondent rightfully struck out the Applicant’s Application for review on the fact that the Applicant failed to meet the prerequisite conditions for admission of Application for review, that is, the requirement to prove that a party had suffered loss or is at the risk of suffering loss or damage, and it based on this basis that the Respondent held that it had no jurisdiction to entertain the Application for review dated 21st May 2025.
47. It is a statutory requirement that a party seeking to invoke the jurisdiction of the Review Board as stipulated by the provisions of Section 167 is under obligation to prove that they have suffered and or stand to suffer loss or damage occasioned by the failure to abide by the procurement laws. The Applicant has not established that it suffered any loss or damage as a result of the decision of the Respondent.
48. The Applicant is engaged in forum shopping having failed to convince the PPRB with its Application for review for the obvious reasons that the Applicant has no justifiable reasons for challenging the decision of the procuring entity.
49. It argues that the Application before the Honourable Court is unmerited since it has been filed by a party which has benefitted from the same procurement process it intends to challenge.
50. The decision dated of the Respondent dated 11th June 2025 was fair and just on the basis that the Review Board considered the evidence adduced by all parties before the rendering the same.
51. The Respondent undertook a holistic review of all the pleadings filed by the Applicant and observed that the Applicant failed to even remotely assert that it had suffered, or stood to suffer, any loss as a result of the breach of the procurement laws by the procuring entity. This is clearly captured in paragraph 96 to 99 of the decision dated 11th June 2025.
The 6th Interested Party case;
52. It argues that The Applicant does not contest the fact that it did not specifically plead that it had suffered loss or risked suffering loss and damage in its request for review Application filed at the Review Board.
53. At paragraph 55 of the Respondent’s decision, it is clear that the Respondent’s jurisdiction was challenged by the 7th Interested Party who had raised a preliminary objection; that that the Applicant had neither pleaded nor demonstrated that it had suffered, or was at risk of suffering, any loss or damage as a result of the alleged breach of procurement procedures and as such the Board lacked jurisdiction.
54. The Court of Appeal in the case of James Oyondi t/a BetoyoContractors & another v. Elroba Enterprises Limited & 8 others [2019] eKLR, where the Court stated that it is a threshold requirement for anyone filing a review before the Board in terms of section 167(1) of the PPADA to plead to suffer loss or damage or likely to have suffered loss or damage as a result of breach of any duty by the procuring entity.
55. At paragraph 69 of the Respondent’s decision, the Respondent sought clarification from the Applicant’s counsel on why the Applicant had not expressly stated that it would suffer loss if the award was not granted in its favour. In response, Counsel submitted that the Applicant’s participation as a bidder, coupled with its contention that the evaluation process was conducted unfairly, was sufficient to demonstrate that the Applicant had been adversely affected, thus justifying its appearance before the Board.
56. Reliance is placed in the case of Fidhow v Registrar of Births and Deaths & another (Application E111 of 2023) [2024] KEHC 10161 (KLR) (Judicial Review) where it was held that;
“The need to identify and express accurately the possible grounds for judicial review is not simply a matter of analytical nicety. It is one of practical necessity”
57. In the statutory statement the Applicant states that section 167(1) of the Act does not require a candidate or a tenderer to particularize his alleged loss or damage in the exact words used in the Act.
58. It is its case that the Applicant seems to be unaware of the position of the law established by the Court of Appeal in James Oyondi t/a Betoyo Contractors (supra) that a candidate or a tenderer who has not pleaded suffering or risked suffering loss and damage as a result of breach of duty by the procuring entity has no locus standi to seek administrative review of the procuring entity’s decision.
59. Jurisdiction is a fundamental issue and can even be raised by the court suo moto. Further I am advised that the court in Republic v Public Procurement Administrative Review Board & 2 others Ex parte Numerical Machining Complex Limited [2016] held that;
“Where the law exhaustively provides for jurisdiction or authority, the body or authority must operate within those limits and ought not expand its jurisdiction through administrative craft or innovation.”
60. The Board correctly applied the law in its finding by stating that the Applicant herein lacked locus standi and thus could not be heard.
61. The Respondent would be committing an error of law and arriving at an illegal decision if it were to entertain the Applicant’s review when it had been demonstrated that the Applicant lacked locus standi.
62. In the case of Pastoli v Kabale District Local Government Council and Others [2008] 2 EA 300 clearly provides the position of the law that acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality.
63. On the issue of legitimate expectation, the principles were explained in Harry Woolf, Jeffrey Jowell and Andrew Le Sueur at page 609 of the 6th Edition of De Smith’s Judicial Review and quoted in the case of Republic v Kenya Revenue Authority Exparte Shake Distributors Limited HC Misc Civil Application No 359 of 2012;
“It follows therefore that the cornerstone of legitimate expectation is a promise made to a party by a public body that it will act or not act in a certain manner. For the promise to hold, the same must be made within the confines of law. A public body cannot make a promise which goes against the express letter of the law.”
64. In the case of Republic v Principle Secretary, Ministry of Transport, Housing and Urban Development Exparte Soweto Residents Forum CBO [2019] eKLR, the Honourable Court cited with approval the position in H. W. R. Wade & C. F. Forsyth [3] at pages 449 to 450, that;
“An expectation whose fulfillment requires that a decision-maker should make an unlawful decision, cannot be a legitimate expectation”
65. In Republic v Public Procurement Administrative Review Board & 2 others Exparte Pelt Security Services Limited [2018] eKLR to mean that;
“Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards”
66. As far as the ground of irrationality is concerned, the Review Board’s decision is not so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.
67. The Review Board opted to down its tools following the Court of Appeal judgment that an Applicant had no locus standi to file a request for review where it did not plead suffering or risks suffering loss and damage due to a breach by a procuring entity.
68. In response to the averments that the Respondent sanitized and validated a preferential and skewed evaluation process the 6th Interested Party states that the Applicant is attempting to reopen the matter and have a second bite at the cherry which is akin to an appeal.
69. The arguments on the evaluation process were raised and considered by the Board.
70. The Applicant is however inviting this court to re-consider the same issues which amounts to inviting this court to engage in a merit review which is an appellate function hence outside the scope of Judicial Review jurisdiction.
71. The finding that the board lacked jurisdiction to entertain the review for lack of locus standi was proper and within the confines of the law.
72. The Review on a writ of certiorari is not a matter of right, but of judicial discretion. A petition for a writ of certiorari will be granted only for compelling reasons. Certiorari is a discretionary remedy, which a court may refuse to grant even when the requisite grounds for it exist.
73. The Applicant has not demonstrated that the Respondent’s decision was tainted with illegality, irrationality or procedural impropriety to warrant this court to exercise its judicial review discretion.
74. Reliance is placed in the case of Republic v Chairman, Rent Restriction Tribunal; Nzaro (Interested Party); Wambua(Exparte) (Judicial Review Application 1 of 2021) [2023] KEELC 17988 (KLR) (23 May 2023) (Judgment) where it was held that Certiorari and prohibition frequently go hand in hand. In the circumstances if certiorari has not been met then prohibition ought to fail.
The 7th Interested Parties Case;
75. It is its case that the Application is misconceived, severely lacking in merit and ought to be dismissed. On 21st May 2025, the Exparte Applicant filed a Request for Review of even date before the Public Procurement Administrative Review Board (PPRB ‘the Respondent.’)
76. It filed a Memorandum of Response and a Notice of Preliminary Objection dated 3rd June 2025 in which we put forward that the Exparte Applicant lacked the locus standi to initiate the Request for Review as required under Section 167(1) of the Public Procurement and Asset Disposal Act.
77. The Preliminary Objection was based on the grounds that the Applicant had neither pleaded nor demonstrated that it had suffered, or was at risk of suffering, any loss or damage as a result of the alleged breach of procurement procedures.
78. In the decision dated 11th June 2025 the Respondent held that the Exparte Applicant lacked the requisite locus standi under Section 167(1) of the Public Procurement and Asset Disposal Act to institute or sustain proceedings for review as in all the pleadings filed by the Exparte Applicant before the Respondent, at no point, did the Applicant even remotely assert that it had suffered, or stood to suffer, any loss as a result of the alleged breach by the Respondents. Consequently, the Respondent had no jurisdiction to determine the matter.
79. The Exparte Applicant has failed to demonstrate any elements of illogicality, illegality, irrationality, procedural impropriety, or unfairness in the manner in which the Respondent considered and interrogated the evidence, documents, pleadings, and information before it in arriving at its Decision in Request for Review No. 63 of 2025.
80. The Judicial Review Application presently before the court is actually an appeal masquerading as a judicial review Application.
81. According to it,a close interrogation of the Exparte Applicant’s statutory statement reveals that the Exparte Applicant does not dispute it in proceedings before the PPRB it had not pleaded the loss it had suffered, stood to suffer, or any loss as a result of the alleged breach by the Respondents.
82. At Paragraph 16 of the Statutory Statement the Exparte Applicant asserts that section 167(1) of the Act does not require a candidate or a tenderer to particularize his alleged loss or damage in the exact words used in the Act.
83. In order to file a review Application, a candidate or tenderer must at the very least claim to have suffered or to be at the risk of suffering loss or damage.
84. It relied on the Court of Appeal in the case of James Oyondi t/a Betoyo Contractors & another v. Elroba Enterprises Limited & 8 others [2019] eKLR, where the Court stated that upon a plain reading of Section 167(1) of the Act it was clear that in order to file a review Application, a candidate or tenderer must at the very least claim to have suffered or to be at the risk of suffering loss or damage.
The Applicant’s submissions
85. It submits that it has been held that for a judicial review court to determine whether an administrative body or a body exercising a quasi-judicial authority acted reasonably, the court must examine some measure of merit analysis.
86. Reliance is placed in the Court of Appeal in the case of Judicial Service Commission & another v Njora, Civil Appeal 486 of 2019[2021]KECA 366 (KLR);
“44. To my mind, even fealty to the traditional “process-only” approach to judicial review must involve a measure of merit analysis. How would a court determine whether an employer acted reasonably and fairly “in the circumstances of the case”, without examining thosecircumstances and measuring them against what isreasonable or fair, and arriving at the conclusion that the action taken was within or outside the bond or range ofreasonable responses? I think that it would be unrealisticfor a court to engage in a dry and formalistic approach,steeped in process alone, while eschewing a measure ofmerit examination. Such merit review is a sine qua non of meaningful engagement with the question of reasonableness and fairness as the antidote to the arbitrary,capricious or illegal conduct of authorities that invite judicial review in the first place.
50. We emphatically find and hold that there is nothing doctrinally or jurisprudentially amiss or erroneous in ajudge’s adoption of a merit review in judicial reviewproceedings. To the contrary, the error would lie in a failure to do so, out of a misconception that judicial review is limited to a dry or formalistic examination of the process while strenuously and artificially avoiding merit. That path only leads to intolerable superficiality.” {Emphasis added}
87. The Ex parte Applicant submits that the Respondent acted on an error of law, unreasonably, irrationally, illegally and unfairly.They submit that The Respondent in its decision found that the Applicant failed to plead by
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