This Judgment determines the Originating Motion dated 15 th April 2025 filed by PEESAM LIMITED, who is the applicant. The application is supported by the affidavit of Samuel Mburu Nganga. It is brought 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 and 11 of the Fair Administrative Actions Act Cap 7L of the Laws of Kenya and Rule 11(2) and 13 of the Fair Administrative Action Rules, 2024.
The application seeks the following orders: THAT this Honorable Court be pleased to issue an order of CERTIORARI, to call and quash and/or set aside the decision of the Public Procurement Administrative Review Board (the 1 st Respondent) dated 9 th April 2025 in Public Procurement Administrative Review Board Application No. 32 of 2025 Peesam Limited Vs. The accounting Officer, Kenya Airports Authority and Kenya Airports Authority and Hannaneli Suppliers Limited, in respect of Tender No. KAA/OT/MIA/0043/2024-2025–Provision of Cleaning Services for Washrooms at Moi International Airport.
THAT this Honorable Court be pleased to issue an order of PROHIBITION, directed at the 2 nd and 3 rd Respondents, prohibiting them from implementation of the Decision of the Public Procurement Administrative Review Board (the 1 st Respondent) issued on 9 th April 2025 in Public Procurement Administrative Review Board Application No. 32 of 2025, with Respect to Tender No. KAA/OT/MIA/0043/2024-2025–Provision of Cleaning Services for Washrooms at Moi International Airport.
THAT pending the hearing of the substantive Originating Motion, that this Honorable Court be pleased to issue AN INTERIM ORDER FOR STAY, to stay the Execution and/or implementation of the Decision of the Public Procurement Administrative Review Board (the 1 st Respondent) issued on 9 th April 2025 in Public Procurement Administrative Review Board Application No. 32 of 2025, with Respect to Tender No. KAA/OT/MIA/0043/2024 2025–Provision of Cleaning Services for Washrooms at Moi International Airport.
Spent.
THAT the costs of these proceedings to be provided for.
Such other, INCIDENTAL or ALTERNATIVE RELIEF(S) as this Honourable Court may deem fair and just.
The circumstances leading to these proceedings as narrated by the applicant are that the 3 rd Respondent, Kenya Airports Authority Floated Tender No. KAA/OT/MIA/0043/2024-2025–Provision of Cleaning Services for Washrooms at Moi International Airport, by inviting interested bidders to participate in the bidding process.
Desirous to participate in the tender, the Applicant duly collected the tender document, perused the same and having found that it met all the requirements therein, it filled and completed the tender document and submitted a responsive bid at a tender price of Kshs. 94,377,889.80).
That vide letter of notification dated 4 th March 2025, and emailed to it on 5 th March 2025, the Applicant was notified of the decision of the 2 nd and 3 rd Respondents to award the tender to the Interested Party HANNANELI SUPPLIERS LIMITED at their bid sum of Kshs. 91, 767,323.40.
It is the Applicant’s case that upon receipt of the notification letter, it noted the trend of alternating the award of tenders for the subject services in the last four (4) years between the Interested Party and Joymacx Enterprises one of the bidders who is the current contract holder for the cleaning services for the 3 rd Respondent.
The Applicant asserts that upon undertaking a company search of the Interested Party, it established that one of the directors and shareholder of the Interested Party was Ann Wambui Ngugi. It is also the Applicant’s case that it was a party together with Joymacx Enterprises in Nairobi High Court Judicial Review No. HCJR/E283/2024 Joymacx Enterprises v The Accounting Officer Kenya Electricity Generating Company & 6 others and that upon the perusal of the Joymacx Enterprises response, the Applicant came across the Garbage Lease Agreement for Joymacx Enterprises wherein one, Ann Ngugi, the Interested Party’s director had witnessed the signing of the agreement on behalf of Joymacx Enterprises.
It is the Applicant’s further case that it has known both the Interested Party and Joymacx Enterprises over the years and that it has always been aware that Ann Wambui Ngugi was an employee of Joymacx Enterprises and as such, learning that she was also a director and shareholder came as a surprise.
The Applicant also avers that the Interested Party and Joymacx Enterprises having been affiliated to each other, were not required to participate in the same subject tender pursuant to section 66 of PPDA and ITT4.3 of the Tender documents. It is for this reason (challenging the alleged affiliation between the two bidding companies by Ann Wambui Ngugi) that the Applicant filed a request for review on 19 th March 2025 being Public Procurement Administrative Review Board Application No. 32 of 2025.
Following the request for review, the 1 st Respondent Review Board rendered its decision on 9 th April 2025 and this decision according to the Applicant, is tainted with illegalities and/or irregularities, and was arrived at in total disregard to the provisions of Sections 66 of the Public Procurement and Asset Disposal Cap 412C of the Laws of Kenya, (hereinafter referred to as “The PPADA”).
According to the Applicant, the decision was arrived at in total disregard to the critical issues that were raised by it. Also, that the 1 st respondent did not address all the prayers by the Applicant including its prayer that the Interested Party and Joymacx Enterprises’ bid documents in the confidential file be compared and re-evaluated as there was a lot of information in the bid documents showing their affiliation.
The 1 st Respondent it is alleged, also failed to consider the weighty evidence where the Interested Party had intentionally failed to appear before it and failed to avail evidence to contravene the Applicant’s evidence. The Applicant also states that 1 st Respondent’s decision violates its fundamental right to fair hearing, access to justice and fair administrative action.
According to the Applicant, the statutory interpretation/construction adopted by the 1 st Respondent establishes a very dangerous precedent that vitiates legislative intent, encourages irregularities and impunity effectively defeating the very essence of the Public Procurement and Asset Disposal Act. Further, that the same enables procuring entities to rely on their deliberate breaches of the Public Procurement and Asset Disposal Act to defeat bona fide requests for review.
The Applicant also filed written submissions dated 8 th May 2025. It submitted that Section 66 (1) of the Public Procurement and Asset Disposal Act provides that a person to whom this Act applies shall not be involved in any corrupt, coercive, obstructive, collusive or fraudulent practice; or conflicts of interest in any procurement or asset disposal proceeding. The Applicant further refers to sub section 8 which is said to further provide that a person has a conflict of interest in a procurement if they or their relative have a financial interest in a bidder or any private interest that conflicts with their official duties regarding the procurement.
The Applicant also submits that Clause 4.3 under Instructions To Tenderers in the Tender (ITT) Document prohibits conflict of interest and categorizes a tenderer to be conflicted if they are affiliated with another tenderer through control, subsidies, shared legal representation, or relationships that could influence each other's tenders or the procuring entity's decisions.
The Applicant reiterates that the Director of the Interested Party is related to and manages both the Interested Party and Joymacx Enterprises , an alternating tender winner for four years indicating a conflict of interest due to shared management, common premises and repeated contract awards. The Applicant submits that the Interested Party did not appear before the 1 st Respondent to controvert these allegations that were raised in the application for review despite being served with Notices to do so.
It is also submitted that had the 1 st Respondent examined the two entities’ bid document, it would realize that the two tenderers had a similar bid format and that the two entities shared many things in common including their location, office space, the same bank and branch being KCB bank, Mashariki branch.
Further, that the two entities also shared the same insurance company and the same insurance agent. The Applicant submits that ITT 4.3(c) disqualifies tenderers who had the same legal representative yet the two entities in question had the same Insurance agent. According to the Applicant, all these things shared by the two entities cannot be just a mere coincidence.
It is also submitted that the procurement process and decision-making must comply with the constitutional principles of transparency and accountability which have also been imported to the PPDA. Similarly, that the failure to address material allegations and the apparent bias in favour of the Interested Party undermine these constitutional principles.
Reliance is placed on the case of Republic v Public Procurement Administrative Review Board; Principles Styles Limited & another (Interested Parties) Ex Parte Accounting Officer, Kenya Water Towers Agency & another [2020] KEHC 9278 (KLR) where the court observed that in determining the legality of a decision, courts interpret the statute, regulations, or tender terms conferring power on the decision-maker to ensure that administrative bodies act strictly within their lawful mandate and in line with the intent of Parliament.
The Applicant submits that the Respondents deviated from the statutory provisions especially Section 66 of the Act and the requirements set in the tender document and this court has the powers to review the decision of the 1 st Respondent and allow the instant Originating Motion as prayed.
Reponses
In response to the Notice of Motion, the 1 st Respondent filed a Replying Affidavit sworn on 6 th May 2025 by James Kilaka.
The 1 st Respondent’s case is that on 19 th March 2025, Peesam Limited, the Applicant herein, filed Request for Review Application No. 32 of 2025 and on 9 th April 2025, in exercise of the powers conferred upon it under the Public Procurement and Asset Disposal Act (hereinafter referred to as “the Act”), made the following final orders with respect to Request for Review No. 32 of 2025:
a) The Request for Review dated 18th March 2025 is hereby dismissed;
b) The Accounting Officer of the Kenya Airports Authority is hereby directed to oversee the tender proceedings for TENDER NO. KAA/OT/MIA/0043/2024-2025 – Provision of Cleaning Services for Washrooms at Moi International Airport to their logical and lawful conclusion; and
c) Each party shall bear its own costs of the proceedings.
The 1 st Respondent contends that contrary to the averments made by the Applicant herein, the 1 st 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 and in light of this, and in accordance with previous holdings by the High Court in regard to this matter, the 1 st Respondent found that the following issues called for determination:
Whether there is sufficient evidence to establish the existence of collusion or any other practice prohibited under Section 66 of Act, between Joymacx Enterprises and the Interested Party.
What orders should the Board issue in the circumstance?
Further, that in determining the issue of whether there was sufficient evidence to establish the existence of collusion or any other practice prohibited under Section 66 of the Act between Joymacx Enterprises and the Interested Party, the 1 st Respondent observed that the Applicant produced a lease agreement for a garbage truck between Joymacx Enterprises and Gledix Limited, which was witnessed by an individual named Ann Ngugi. That the Applicant contended that Ann Ngugi is a director of the Interested Party. To support this claim, the Applicant submitted the Interested Party’s CR-12, which listed Ann Wambui Ngugi as one of its directors.
The 1 st Respondent states that it also noted that the Applicant further asserted that the Interested Party and Joymacx Enterprises share an office, where Ann Ngugi serves as the office manager for both entities.
That upon carefully examining the garbage truck lease agreement between Joymacx Enterprises and Gledix Limited, the 1 st Respondent states that it observed that the same had been witnessed by an individual named Ann Ngugi. Additionally, the 1 st Respondent reviewed the Interested Party’s CR-12, which listed Anna Wambui Chege and Ann Wambui Ngugi as its directors. The 1 st Respondent also perused the Search Certificate for Joymacx Enterprises and noted that the proprietor of the entity was Joyce Moraa Oyaro.
It also asserted that it was undisputed that the ownership of Joymacx Enterprises was not in any way connected to the ownership of the Interested Party. Further, that during the hearing, the Applicant’s counsel confirmed that, legally, there is no nexus between the ownership of the two entities.
According to the 1 st Respondent, it noted in its decision that no evidence had been presented to establish that Ann Ngugi is the same person as Ann Wambui Ngugi. It further observed that the allegations regarding Ann Ngugi being an employee of Joymacx Enterprises while simultaneously serving as a director of the Interested Party were not sufficiently substantiated as no evidence such as an employment contract or any other relevant document, were provided. The Applicant, it is stated, also failed to provide any evidence of the claim that the Interested Party and Joymacx Enterprises share an office.
The 1 st Respondent contends that it has consistently upheld procurement procedures as required by law, promoting the integrity and fairness of these procedures and processes and it has neither flouted any law nor acted in excess of its powers.
It is the 1 st Respondent’s defence that the Applicant has failed to demonstrate any elements of illogicality, illegality, irrationality, procedural impropriety, or unfairness in the manner in which the 1 st Respondent considered and interrogated the evidence, documents, pleadings, and information before it in arriving at its Decision in Request for Review No. 32 of 2025.
In its submissions dated 9 th May 2025, the 1 st Respondent submits that the Applicant’s motion is essentially a review of the merits of the decision of the Respondent and for all intents and purposes and that although it is framed as a judicial review application, it is seeking to improperly invoke an appellate jurisdiction of the High Court.
It is equally submitted that the Review Board in granting the orders herein impugned remained faithful to its powers and mandate as envisaged under section 173 of the Act. Further, that judicial review aims to ensure fair treatment by public bodies, not to assess the correctness of their decisions on the merits; thus, in this case, the Court's role is limited to examining the lawfulness of the Review Board’s decision, not substituting its own judgment for that of the Board.
The 1 st Respondent relies on the case of Republic vs. Public Procurement Administrative Review Board & Another Ex Parte Gibb Africa LTD & Another [2012] eKLR where the court is said to have set out the established reach of judicial review in Kenya.
The 1 st Respondent also cites Section 107 of the Evidence Act and further submits that the matter before it was civil in nature, and thus judgement arrived at was dependent on the existence of facts asserted by the Applicant and the burden of proof was upon the Applicant. To support this submission, reliance is placed in the case of Fondo v Mutiso & another [2025] KEHC 5568 (KLR) .
The 1 st respondent maintained that it has at all times upheld procurement procedures as required by law, promoting integrity and fairness of these procedures.
On the issue of merit review by this court, the 1 st Respondent relies on the case of Republic v Commissioner Of Customs Services Ex-Parte Africa K-Link International Limited [2012] eKLR where the court reiterated that a judicial review court is concerned with the process a statutory body employs to reach its decision and not the merits of the decision itself.
On the grounds of judicial review, the 1 st Respondent relies on the well-known Ugandan case of Pastoli v Kabale District Local Government Council & Others, [2008] 2 EA 300 .
N costs, the 1 st Respondent submits that it is a well-established principle that costs follow the event and to support this position, reliance is placed in the case of Party of Independent Candidate of Kenya & another v Mutula Kilonzo & 2 others [2013] KEHC 5939 (KLR). It is also submitted that section 175(7) of the Public Procurement and Asset Disposal Act bars issuance of costs in the event the decision of the Board has been quashed.
Accordingly, the 1 st Respondent submits that it acted in good faith and in the event this Honourable Court is inclined to uphold the Applicant’s prayers, then the Respondent should not be condemned to pay costs.
Interested Party
The Interested Party filed a Replying Affidavit sworn on 21 st May 2025, deposing that the Motion is legally unsustainable and that the Motion is not anchored in any admissible evidence but relies on speculative associations and recycled narratives. It is also the Interested Party’s case that the Motion falls below the basic legal threshold of a judicial review as set out in Republic v Law Society of Kenya Disciplinary Tribunal & another Ex Parte Muema Kitulu [2018] eKLR .
The Interested Party also states that the allegation of an “award pattern” alternating between the Interested Party and Joymacx Enterprises is mere conjecture without an evidential backbone. It is also its contention that the allegations that Ann Wambui Ngugi, a director of the Interested Party, had once witnessed a Lease Agreement for Joymacx Enterprises constitutes a bald allegation as reliance on a prior unrelated judicial review case and an incidental witnessing of a lease agreement does not establish a legal relationship between the Interested Party and Joymacx Enterprises within the meaning of “collusion” under section 66 of the Act and ITT4.3 of the Tender Document.
Similarly, that collusion and/or affiliation must entail direct and present control or shared beneficial ownership, not conjecture. It is further urged that in any event, there is a significant difference in names between Ann Wambui Ngugi and Ann Ngugi; these being two different people.
The Interested Party also states that the Applicant’s allegation that Ann Wambui Ngugi, a director of the Interested Party was a former employee of Joymacx Enterprises and linking the two firms, alleging that their bidding was improper and in violation of section 66 of the Act and ITT4.3 of the Tender Document, also constitutes a bald allegation because no employment contract, payslip has been presented to demonstrate the employer employee relationship between Ann Wambui Ngugi and Joymacx Enterprises; the Interested Party and Joymacx Enterprises submitted separate, independently assessed bids; and the law requires proof of actual or potential collusion between them.
It is also deposed that the impugned Decision was not only rational and lawful but was the product of a tribunal acting squarely within its statutory mandate under Section 171 of the Act. Also, that the Board thoroughly analyzed the bids and clearly addressed the affiliation allegation and the Interested Party’s silence did not transform unproven claims into facts. The Interested Party also states that the Board evaluates actual evidence, not mere assertions. Further, that the Applicant was given a fair hearing, their submissions considered, and a reasoned decision rendered.
This court while writing this Judgement noted from the Case Tracking System that the Interested Party had filed its written submissions and list and bundle of authorities on 23 rd May 2025 at 13.56 p.m. and 2.03 p.m. respectively.
This Court in its directions of 7 th May 2025 stated as follows:
“The Respondents and Interested Party will then have until close of business on 9 th May 2025 to file and serve written submissions and if need be, a Supplementary Affidavit.
Owing to strict statutory timelines for determination of this matter I hereby fix a judgment date which shall be on 26 th May 2025.”
The need for parties to comply with the directions of the court was emphasised by the Supreme Court in the case of Okoiti & 3 others v Cabinet Secretary for the National Treasury and Planning & 10 others (Application E029 of 2023) [2023] KESC 69 (KLR) (8 September 2023) (Ruling) where the court struck out the applicants’ submissions for failing to comply with what the court had directed. In the same breath, this court finds that the Interested Party having filed its submissions, list and bundle of authorities 14 days past the date directed by the court and without finding it necessary to seek out the court to admit the said submissions out of time, the same are struck out and expunged from the court’s record.
Analysis and Determination
This Court has carefully considered the pleadings, affidavits, written submissions, authorities cited by the parties, and the applicable legal framework. The main issues for determination are: Whether the 1 st Respondent erred in law by failing to find a conflict of interest or collusion between the Interested Party and Joymacx Enterprises in violation of Section 66 of the PPADA and ITT Clause 4.3;
Whether the 1 st Respondent’s decision was illegal, irrational, procedurally unfair or otherwise amenable to judicial review;
Whether the Applicant is entitled to the reliefs sought.
The Applicant’s primary assertion is that the Interested Party and Joymacx Enterprises are affiliated entities by reason of shared management and business infrastructure, allegedly contravening Section 66 of the Public Procurement and Asset Disposal Act (PPADA) and ITT Clause 4.3. In support of this allegation, the Applicant relied on the CR12 of the Interested Party listing Ann Wambui Ngugi as a director, and a garbage truck lease agreement witnessed by one “Ann Ngugi” on behalf of Joymacx Enterprises.
The interested party and the 1 st respondent deny these allegations with the 1 st respondent contending that it exhaustively considered the allegation against the evidence available and did not find evidence linking the two entities to the procurement process. The interested party further asserted that the allegation by the applicant is speculative and bald, devoid of any proof.
This Court has had an opportunity to examine the 1 st Respondent’s decision dated 18 th March 2025. It notes that after the Applicant and the Respondents before the Review Board had completed stating their respective cases, the Review Board sought for clarifications on several issues one of which was the issue of how Joymacx Enterprises Limited and the Interested Party herein were legally related.
At paragraph 37 of its decision which is impugned herein, the Review Board states that counsel for the Applicant stated that Joymacx Enterprises was a sole proprietorship, with its proprietor being Joyce Oyaro, while the directors of the Interested Party were Anna Wambui Chege and Ann Wambui Ngugi.
The Review Board went ahead at paragraph 38 of its decision to state that counsel for the Applicant had clarified that legally, the two entities were not related However, that affiliation through third parties could create a conflict of interest.
The Review Board went further to seek a clarification on how third parties could create a conflict of interest and Counsel for the applicant responded that the two entities share the same staff, as Ann Ngugi served as the office manager for both. Counsel further argued that two affiliated entities ought not have tendered separately for the same tender.
A clarification was also sought from the Respondent procuring entity on this issue with the Review Board seeking to know if the Procuring Entity had noted any concerns regarding the Interested Party and Joymacx Enterprises sharing the same staff. Mr Mulili advocate for the Respondents responded by stating that both evaluation and due diligence had been conducted, and nothing was noted regarding collusion.
The Review Board also observed at paragraphs 43 and 44 of its decision that it had sought clarification from counsel for the Applicant on whether or not the Applicant was aware that the two firms were affiliated with each other by the tender opening time, considering that the garbage truck lease agreement was already in place.
In response, counsel for the applicant stated that they were not aware of any affiliation between the two firms at the time the tenders were opened. Further, that their suspicions arose only after receiving the notification letter, at which point, they decided to conduct a search and subsequently obtained the CR-12.
At paragraph 45 of its decision, it is evident that the Review Board also sought clarification from the Applicant’s Counsel on how the CR-12 and CR-13 demonstrated that the two entities were affiliated. It also further inquired whether the Applicant wanted the Board to infer collusion based solely on the fact that a person named Ann Ngugi witnessed the garbage truck lease agreement and was also listed as Ann Wambui Ngugi on the CR-12. The Board also specifically sought clarification on whether the Applicant had any evidence to justify this inference. In response, the Applicant’s Counsel stated that the documents annexed were the only ones the Applicant sought to rely on.
In its findings on this issue, the Board as from paragraph 62 of its decision held that it had noted that it is undisputed that the ownership of Joymacx Enterprises is not connected in any way to the ownership of the Interested Party. It also observed that during the hearing, the Applicant’s Counsel confirmed that, legally, there was no nexus between the ownership of the two entities.
The Review Board proceeded to determine whether or not Ann Ngugi is the same person as Ann Wambui Ngugi. It held that it found it difficult to accept that Ann Ngugi and Ann Wambui Ngugi are one and the same person as the Applicant provided little to no evidence to substantiate the claim that Ann Ngugi and Ann Wambui Ngugi were indeed one and the same individual.
The Review Board relied on Section 107(1) of the Evidence Act on the Burden of Proof. The Review Board observed that as is provided under the law, he who alleges must prove. It also stated that counsel for the Applicant had acknowledged that the evidence presented was limited and that he had urged the Review Board to infer collusion based on the available information.
At paragraphs 74 of its decision, the Board observed that the allegations regarding Ann Ngugi being an employee of Joymacx Enterprises and simultaneously serving as a director of the Interested Party were not substantiated. Further, that the Applicant had failed to present any supporting evidence, such as an employment contract, or any other relevant document, to demonstrate the existence of an employment relationship between Ann Ngugi and Joymacx Enterprises.
On the allegation of a shared office, the Review Board at paragraph 75 held that this assertion was unsubstantiated, as the Applicant had failed to provide any evidence to support it.
In concluding, the Review Board at paragraph 77 concluded that there is insufficient evidence to establish that collusion occurred between the Interested Party and Joymacx Enterprises, as prohibited under Section 66 of the Act.
Having carefully considered the respective parties’ positions and arguments, I agree with the 1 st Respondent that the burden of proof lies on he who alleges and that in this case, the burden of proof lay on the applicant to proof that there was nexus between the Joymax and the interested party, for the Review Board to find that there was therefore direct or indirect conflict of interest in their engagement with the procuring entity’s tendering processes, both past and current. In my view, the Review Board’s finding that no cogent evidence was presented to establish that Ann Wambui Ngugi is the same person as Ann Ngugi who witnessed the lease, or that she is an employee of Joymacx Enterprises was not a farfetched finding.
Having examined the evidence adduced before the review Board, this Court notes that no employment records, correspondence, or corporate filings were tendered to establish a legal, managerial or financial association or relationship between the two entities as envisaged under Section 66(8) of the PPADA or ITT clause 4.3.
Besides, while the Applicant alleged shared premises, insurance agent and bank branch, these assertions, without documentary evidence or sworn depositions from persons with actual knowledge, remain speculative. Mere similarities in bid formats, service providers or incidental overlaps do not automatically amount to evidence of collusion or conflict of interest without more.
The Review Board's conclusion that the Applicant had not discharged its burden of proof under Section 107 of the Evidence Act to establish the alleged affiliation or conflict of interest was well founded and within its mandate. Collusion under procurement law must be proved with credible and specific evidence, not conjecture or associa
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The application seeks the following orders: THAT this Honorable Court be pleased to issue an order of CERTIORARI, to call and quash and/or set aside the decision of the Public Procurement Administrative Review Board (the 1 st Respondent) dated 9 th April 2025 in Public Procurement Administrative Review Board Application No. 32 of 2025 Peesam Limited Vs. The accounting Officer, Kenya Airports Authority and Kenya Airports Authority and Hannaneli Suppliers Limited, in respect of Tender No. KAA/OT/MIA/0043/2024-2025–Provision of Cleaning Services for Washrooms at Moi International Airport.
THAT this Honorable Court be pleased to issue an order of PROHIBITION, directed at the 2 nd and 3 rd Respondents, prohibiting them from implementation of the Decision of the Public Procurement Administrative Review Board (the 1 st Respondent) issued on 9 th April 2025 in Public Procurement Administrative Review Board Application No. 32 of 2025, with Respect to Tender No. KAA/OT/MIA/0043/2024-2025–Provision of Cleaning Services for Washrooms at Moi International Airport.
THAT pending the hearing of the substantive Originating Motion, that this Honorable Court be pleased to issue AN INTERIM ORDER FOR STAY, to stay the Execution and/or implementation of the Decision of the Public Procurement Administrative Review Board (the 1 st Respondent) issued on 9 th April 2025 in Public Procurement Administrative Review Board Application No. 32 of 2025, with Respect to Tender No. KAA/OT/MIA/0043/2024 2025–Provision of Cleaning Services for Washrooms at Moi International Airport.
Spent.
THAT the costs of these proceedings to be provided for.
Such other, INCIDENTAL or ALTERNATIVE RELIEF(S) as this Honourable Court may deem fair and just.
The circumstances leading to these proceedings as narrated by the applicant are that the 3 rd Respondent, Kenya Airports Authority Floated Tender No. KAA/OT/MIA/0043/2024-2025–Provision of Cleaning Services for Washrooms at Moi International Airport, by inviting interested bidders to participate in the bidding process.
Desirous to participate in the tender, the Applicant duly collected the tender document, perused the same and having found that it met all the requirements therein, it filled and completed the tender document and submitted a responsive bid at a tender price of Kshs. 94,377,889.80).
That vide letter of notification dated 4 th March 2025, and emailed to it on 5 th March 2025, the Applicant was notified of the decision of the 2 nd and 3 rd Respondents to award the tender to the Interested Party HANNANELI SUPPLIERS LIMITED at their bid sum of Kshs. 91, 767,323.40.
It is the Applicant’s case that upon receipt of the notification letter, it noted the trend of alternating the award of tenders for the subject services in the last four (4) years between the Interested Party and Joymacx Enterprises one of the bidders who is the current contract holder for the cleaning services for the 3 rd Respondent.
The Applicant asserts that upon undertaking a company search of the Interested Party, it established that one of the directors and shareholder of the Interested Party was Ann Wambui Ngugi. It is also the Applicant’s case that it was a party together with Joymacx Enterprises in Nairobi High Court Judicial Review No. HCJR/E283/2024 Joymacx Enterprises v The Accounting Officer Kenya Electricity Generating Company & 6 others and that upon the perusal of the Joymacx Enterprises response, the Applicant came across the Garbage Lease Agreement for Joymacx Enterprises wherein one, Ann Ngugi, the Interested Party’s director had witnessed the signing of the agreement on behalf of Joymacx Enterprises.
It is the Applicant’s further case that it has known both the Interested Party and Joymacx Enterprises over the years and that it has always been aware that Ann Wambui Ngugi was an employee of Joymacx Enterprises and as such, learning that she was also a director and shareholder came as a surprise.
The Applicant also avers that the Interested Party and Joymacx Enterprises having been affiliated to each other, were not required to participate in the same subject tender pursuant to section 66 of PPDA and ITT4.3 of the Tender documents. It is for this reason (challenging the alleged affiliation between the two bidding companies by Ann Wambui Ngugi) that the Applicant filed a request for review on 19 th March 2025 being Public Procurement Administrative Review Board Application No. 32 of 2025.
Following the request for review, the 1 st Respondent Review Board rendered its decision on 9 th April 2025 and this decision according to the Applicant, is tainted with illegalities and/or irregularities, and was arrived at in total disregard to the provisions of Sections 66 of the Public Procurement and Asset Disposal Cap 412C of the Laws of Kenya, (hereinafter referred to as “The PPADA”).
According to the Applicant, the decision was arrived at in total disregard to the critical issues that were raised by it. Also, that the 1 st respondent did not address all the prayers by the Applicant including its prayer that the Interested Party and Joymacx Enterprises’ bid documents in the confidential file be compared and re-evaluated as there was a lot of information in the bid documents showing their affiliation.
The 1 st Respondent it is alleged, also failed to consider the weighty evidence where the Interested Party had intentionally failed to appear before it and failed to avail evidence to contravene the Applicant’s evidence. The Applicant also states that 1 st Respondent’s decision violates its fundamental right to fair hearing, access to justice and fair administrative action.
According to the Applicant, the statutory interpretation/construction adopted by the 1 st Respondent establishes a very dangerous precedent that vitiates legislative intent, encourages irregularities and impunity effectively defeating the very essence of the Public Procurement and Asset Disposal Act. Further, that the same enables procuring entities to rely on their deliberate breaches of the Public Procurement and Asset Disposal Act to defeat bona fide requests for review.
The Applicant also filed written submissions dated 8 th May 2025. It submitted that Section 66 (1) of the Public Procurement and Asset Disposal Act provides that a person to whom this Act applies shall not be involved in any corrupt, coercive, obstructive, collusive or fraudulent practice; or conflicts of interest in any procurement or asset disposal proceeding. The Applicant further refers to sub section 8 which is said to further provide that a person has a conflict of interest in a procurement if they or their relative have a financial interest in a bidder or any private interest that conflicts with their official duties regarding the procurement.
The Applicant also submits that Clause 4.3 under Instructions To Tenderers in the Tender (ITT) Document prohibits conflict of interest and categorizes a tenderer to be conflicted if they are affiliated with another tenderer through control, subsidies, shared legal representation, or relationships that could influence each other's tenders or the procuring entity's decisions.
The Applicant reiterates that the Director of the Interested Party is related to and manages both the Interested Party and Joymacx Enterprises , an alternating tender winner for four years indicating a conflict of interest due to shared management, common premises and repeated contract awards. The Applicant submits that the Interested Party did not appear before the 1 st Respondent to controvert these allegations that were raised in the application for review despite being served with Notices to do so.
It is also submitted that had the 1 st Respondent examined the two entities’ bid document, it would realize that the two tenderers had a similar bid format and that the two entities shared many things in common including their location, office space, the same bank and branch being KCB bank, Mashariki branch.
Further, that the two entities also shared the same insurance company and the same insurance agent. The Applicant submits that ITT 4.3(c) disqualifies tenderers who had the same legal representative yet the two entities in question had the same Insurance agent. According to the Applicant, all these things shared by the two entities cannot be just a mere coincidence.
It is also submitted that the procurement process and decision-making must comply with the constitutional principles of transparency and accountability which have also been imported to the PPDA. Similarly, that the failure to address material allegations and the apparent bias in favour of the Interested Party undermine these constitutional principles.
Reliance is placed on the case of Republic v Public Procurement Administrative Review Board; Principles Styles Limited & another (Interested Parties) Ex Parte Accounting Officer, Kenya Water Towers Agency & another [2020] KEHC 9278 (KLR) where the court observed that in determining the legality of a decision, courts interpret the statute, regulations, or tender terms conferring power on the decision-maker to ensure that administrative bodies act strictly within their lawful mandate and in line with the intent of Parliament.
The Applicant submits that the Respondents deviated from the statutory provisions especially Section 66 of the Act and the requirements set in the tender document and this court has the powers to review the decision of the 1 st Respondent and allow the instant Originating Motion as prayed.
Reponses
In response to the Notice of Motion, the 1 st Respondent filed a Replying Affidavit sworn on 6 th May 2025 by James Kilaka.
The 1 st Respondent’s case is that on 19 th March 2025, Peesam Limited, the Applicant herein, filed Request for Review Application No. 32 of 2025 and on 9 th April 2025, in exercise of the powers conferred upon it under the Public Procurement and Asset Disposal Act (hereinafter referred to as “the Act”), made the following final orders with respect to Request for Review No. 32 of 2025:
a) The Request for Review dated 18th March 2025 is hereby dismissed;
b) The Accounting Officer of the Kenya Airports Authority is hereby directed to oversee the tender proceedings for TENDER NO. KAA/OT/MIA/0043/2024-2025 – Provision of Cleaning Services for Washrooms at Moi International Airport to their logical and lawful conclusion; and
c) Each party shall bear its own costs of the proceedings.
The 1 st Respondent contends that contrary to the averments made by the Applicant herein, the 1 st 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 and in light of this, and in accordance with previous holdings by the High Court in regard to this matter, the 1 st Respondent found that the following issues called for determination:
Whether there is sufficient evidence to establish the existence of collusion or any other practice prohibited under Section 66 of Act, between Joymacx Enterprises and the Interested Party.
What orders should the Board issue in the circumstance?
Further, that in determining the issue of whether there was sufficient evidence to establish the existence of collusion or any other practice prohibited under Section 66 of the Act between Joymacx Enterprises and the Interested Party, the 1 st Respondent observed that the Applicant produced a lease agreement for a garbage truck between Joymacx Enterprises and Gledix Limited, which was witnessed by an individual named Ann Ngugi. That the Applicant contended that Ann Ngugi is a director of the Interested Party. To support this claim, the Applicant submitted the Interested Party’s CR-12, which listed Ann Wambui Ngugi as one of its directors.
The 1 st Respondent states that it also noted that the Applicant further asserted that the Interested Party and Joymacx Enterprises share an office, where Ann Ngugi serves as the office manager for both entities.
That upon carefully examining the garbage truck lease agreement between Joymacx Enterprises and Gledix Limited, the 1 st Respondent states that it observed that the same had been witnessed by an individual named Ann Ngugi. Additionally, the 1 st Respondent reviewed the Interested Party’s CR-12, which listed Anna Wambui Chege and Ann Wambui Ngugi as its directors. The 1 st Respondent also perused the Search Certificate for Joymacx Enterprises and noted that the proprietor of the entity was Joyce Moraa Oyaro.
It also asserted that it was undisputed that the ownership of Joymacx Enterprises was not in any way connected to the ownership of the Interested Party. Further, that during the hearing, the Applicant’s counsel confirmed that, legally, there is no nexus between the ownership of the two entities.
According to the 1 st Respondent, it noted in its decision that no evidence had been presented to establish that Ann Ngugi is the same person as Ann Wambui Ngugi. It further observed that the allegations regarding Ann Ngugi being an employee of Joymacx Enterprises while simultaneously serving as a director of the Interested Party were not sufficiently substantiated as no evidence such as an employment contract or any other relevant document, were provided. The Applicant, it is stated, also failed to provide any evidence of the claim that the Interested Party and Joymacx Enterprises share an office.
The 1 st Respondent contends that it has consistently upheld procurement procedures as required by law, promoting the integrity and fairness of these procedures and processes and it has neither flouted any law nor acted in excess of its powers.
It is the 1 st Respondent’s defence that the Applicant has failed to demonstrate any elements of illogicality, illegality, irrationality, procedural impropriety, or unfairness in the manner in which the 1 st Respondent considered and interrogated the evidence, documents, pleadings, and information before it in arriving at its Decision in Request for Review No. 32 of 2025.
In its submissions dated 9 th May 2025, the 1 st Respondent submits that the Applicant’s motion is essentially a review of the merits of the decision of the Respondent and for all intents and purposes and that although it is framed as a judicial review application, it is seeking to improperly invoke an appellate jurisdiction of the High Court.
It is equally submitted that the Review Board in granting the orders herein impugned remained faithful to its powers and mandate as envisaged under section 173 of the Act. Further, that judicial review aims to ensure fair treatment by public bodies, not to assess the correctness of their decisions on the merits; thus, in this case, the Court's role is limited to examining the lawfulness of the Review Board’s decision, not substituting its own judgment for that of the Board.
The 1 st Respondent relies on the case of Republic vs. Public Procurement Administrative Review Board & Another Ex Parte Gibb Africa LTD & Another [2012] eKLR where the court is said to have set out the established reach of judicial review in Kenya.
The 1 st Respondent also cites Section 107 of the Evidence Act and further submits that the matter before it was civil in nature, and thus judgement arrived at was dependent on the existence of facts asserted by the Applicant and the burden of proof was upon the Applicant. To support this submission, reliance is placed in the case of Fondo v Mutiso & another [2025] KEHC 5568 (KLR) .
The 1 st respondent maintained that it has at all times upheld procurement procedures as required by law, promoting integrity and fairness of these procedures.
On the issue of merit review by this court, the 1 st Respondent relies on the case of Republic v Commissioner Of Customs Services Ex-Parte Africa K-Link International Limited [2012] eKLR where the court reiterated that a judicial review court is concerned with the process a statutory body employs to reach its decision and not the merits of the decision itself.
On the grounds of judicial review, the 1 st Respondent relies on the well-known Ugandan case of Pastoli v Kabale District Local Government Council & Others, [2008] 2 EA 300 .
N costs, the 1 st Respondent submits that it is a well-established principle that costs follow the event and to support this position, reliance is placed in the case of Party of Independent Candidate of Kenya & another v Mutula Kilonzo & 2 others [2013] KEHC 5939 (KLR). It is also submitted that section 175(7) of the Public Procurement and Asset Disposal Act bars issuance of costs in the event the decision of the Board has been quashed.
Accordingly, the 1 st Respondent submits that it acted in good faith and in the event this Honourable Court is inclined to uphold the Applicant’s prayers, then the Respondent should not be condemned to pay costs.
Interested Party
The Interested Party filed a Replying Affidavit sworn on 21 st May 2025, deposing that the Motion is legally unsustainable and that the Motion is not anchored in any admissible evidence but relies on speculative associations and recycled narratives. It is also the Interested Party’s case that the Motion falls below the basic legal threshold of a judicial review as set out in Republic v Law Society of Kenya Disciplinary Tribunal & another Ex Parte Muema Kitulu [2018] eKLR .
The Interested Party also states that the allegation of an “award pattern” alternating between the Interested Party and Joymacx Enterprises is mere conjecture without an evidential backbone. It is also its contention that the allegations that Ann Wambui Ngugi, a director of the Interested Party, had once witnessed a Lease Agreement for Joymacx Enterprises constitutes a bald allegation as reliance on a prior unrelated judicial review case and an incidental witnessing of a lease agreement does not establish a legal relationship between the Interested Party and Joymacx Enterprises within the meaning of “collusion” under section 66 of the Act and ITT4.3 of the Tender Document.
Similarly, that collusion and/or affiliation must entail direct and present control or shared beneficial ownership, not conjecture. It is further urged that in any event, there is a significant difference in names between Ann Wambui Ngugi and Ann Ngugi; these being two different people.
The Interested Party also states that the Applicant’s allegation that Ann Wambui Ngugi, a director of the Interested Party was a former employee of Joymacx Enterprises and linking the two firms, alleging that their bidding was improper and in violation of section 66 of the Act and ITT4.3 of the Tender Document, also constitutes a bald allegation because no employment contract, payslip has been presented to demonstrate the employer employee relationship between Ann Wambui Ngugi and Joymacx Enterprises; the Interested Party and Joymacx Enterprises submitted separate, independently assessed bids; and the law requires proof of actual or potential collusion between them.
It is also deposed that the impugned Decision was not only rational and lawful but was the product of a tribunal acting squarely within its statutory mandate under Section 171 of the Act. Also, that the Board thoroughly analyzed the bids and clearly addressed the affiliation allegation and the Interested Party’s silence did not transform unproven claims into facts. The Interested Party also states that the Board evaluates actual evidence, not mere assertions. Further, that the Applicant was given a fair hearing, their submissions considered, and a reasoned decision rendered.
This court while writing this Judgement noted from the Case Tracking System that the Interested Party had filed its written submissions and list and bundle of authorities on 23 rd May 2025 at 13.56 p.m. and 2.03 p.m. respectively.
This Court in its directions of 7 th May 2025 stated as follows:
“The Respondents and Interested Party will then have until close of business on 9 th May 2025 to file and serve written submissions and if need be, a Supplementary Affidavit.
Owing to strict statutory timelines for determination of this matter I hereby fix a judgment date which shall be on 26 th May 2025.”
The need for parties to comply with the directions of the court was emphasised by the Supreme Court in the case of Okoiti & 3 others v Cabinet Secretary for the National Treasury and Planning & 10 others (Application E029 of 2023) [2023] KESC 69 (KLR) (8 September 2023) (Ruling) where the court struck out the applicants’ submissions for failing to comply with what the court had directed. In the same breath, this court finds that the Interested Party having filed its submissions, list and bundle of authorities 14 days past the date directed by the court and without finding it necessary to seek out the court to admit the said submissions out of time, the same are struck out and expunged from the court’s record.
Analysis and Determination
This Court has carefully considered the pleadings, affidavits, written submissions, authorities cited by the parties, and the applicable legal framework. The main issues for determination are: Whether the 1 st Respondent erred in law by failing to find a conflict of interest or collusion between the Interested Party and Joymacx Enterprises in violation of Section 66 of the PPADA and ITT Clause 4.3;
Whether the 1 st Respondent’s decision was illegal, irrational, procedurally unfair or otherwise amenable to judicial review;
Whether the Applicant is entitled to the reliefs sought.
The Applicant’s primary assertion is that the Interested Party and Joymacx Enterprises are affiliated entities by reason of shared management and business infrastructure, allegedly contravening Section 66 of the Public Procurement and Asset Disposal Act (PPADA) and ITT Clause 4.3. In support of this allegation, the Applicant relied on the CR12 of the Interested Party listing Ann Wambui Ngugi as a director, and a garbage truck lease agreement witnessed by one “Ann Ngugi” on behalf of Joymacx Enterprises.
The interested party and the 1 st respondent deny these allegations with the 1 st respondent contending that it exhaustively considered the allegation against the evidence available and did not find evidence linking the two entities to the procurement process. The interested party further asserted that the allegation by the applicant is speculative and bald, devoid of any proof.
This Court has had an opportunity to examine the 1 st Respondent’s decision dated 18 th March 2025. It notes that after the Applicant and the Respondents before the Review Board had completed stating their respective cases, the Review Board sought for clarifications on several issues one of which was the issue of how Joymacx Enterprises Limited and the Interested Party herein were legally related.
At paragraph 37 of its decision which is impugned herein, the Review Board states that counsel for the Applicant stated that Joymacx Enterprises was a sole proprietorship, with its proprietor being Joyce Oyaro, while the directors of the Interested Party were Anna Wambui Chege and Ann Wambui Ngugi.
The Review Board went ahead at paragraph 38 of its decision to state that counsel for the Applicant had clarified that legally, the two entities were not related However, that affiliation through third parties could create a conflict of interest.
The Review Board went further to seek a clarification on how third parties could create a conflict of interest and Counsel for the applicant responded that the two entities share the same staff, as Ann Ngugi served as the office manager for both. Counsel further argued that two affiliated entities ought not have tendered separately for the same tender.
A clarification was also sought from the Respondent procuring entity on this issue with the Review Board seeking to know if the Procuring Entity had noted any concerns regarding the Interested Party and Joymacx Enterprises sharing the same staff. Mr Mulili advocate for the Respondents responded by stating that both evaluation and due diligence had been conducted, and nothing was noted regarding collusion.
The Review Board also observed at paragraphs 43 and 44 of its decision that it had sought clarification from counsel for the Applicant on whether or not the Applicant was aware that the two firms were affiliated with each other by the tender opening time, considering that the garbage truck lease agreement was already in place.
In response, counsel for the applicant stated that they were not aware of any affiliation between the two firms at the time the tenders were opened. Further, that their suspicions arose only after receiving the notification letter, at which point, they decided to conduct a search and subsequently obtained the CR-12.
At paragraph 45 of its decision, it is evident that the Review Board also sought clarification from the Applicant’s Counsel on how the CR-12 and CR-13 demonstrated that the two entities were affiliated. It also further inquired whether the Applicant wanted the Board to infer collusion based solely on the fact that a person named Ann Ngugi witnessed the garbage truck lease agreement and was also listed as Ann Wambui Ngugi on the CR-12. The Board also specifically sought clarification on whether the Applicant had any evidence to justify this inference. In response, the Applicant’s Counsel stated that the documents annexed were the only ones the Applicant sought to rely on.
In its findings on this issue, the Board as from paragraph 62 of its decision held that it had noted that it is undisputed that the ownership of Joymacx Enterprises is not connected in any way to the ownership of the Interested Party. It also observed that during the hearing, the Applicant’s Counsel confirmed that, legally, there was no nexus between the ownership of the two entities.
The Review Board proceeded to determine whether or not Ann Ngugi is the same person as Ann Wambui Ngugi. It held that it found it difficult to accept that Ann Ngugi and Ann Wambui Ngugi are one and the same person as the Applicant provided little to no evidence to substantiate the claim that Ann Ngugi and Ann Wambui Ngugi were indeed one and the same individual.
The Review Board relied on Section 107(1) of the Evidence Act on the Burden of Proof. The Review Board observed that as is provided under the law, he who alleges must prove. It also stated that counsel for the Applicant had acknowledged that the evidence presented was limited and that he had urged the Review Board to infer collusion based on the available information.
At paragraphs 74 of its decision, the Board observed that the allegations regarding Ann Ngugi being an employee of Joymacx Enterprises and simultaneously serving as a director of the Interested Party were not substantiated. Further, that the Applicant had failed to present any supporting evidence, such as an employment contract, or any other relevant document, to demonstrate the existence of an employment relationship between Ann Ngugi and Joymacx Enterprises.
On the allegation of a shared office, the Review Board at paragraph 75 held that this assertion was unsubstantiated, as the Applicant had failed to provide any evidence to support it.
In concluding, the Review Board at paragraph 77 concluded that there is insufficient evidence to establish that collusion occurred between the Interested Party and Joymacx Enterprises, as prohibited under Section 66 of the Act.
Having carefully considered the respective parties’ positions and arguments, I agree with the 1 st Respondent that the burden of proof lies on he who alleges and that in this case, the burden of proof lay on the applicant to proof that there was nexus between the Joymax and the interested party, for the Review Board to find that there was therefore direct or indirect conflict of interest in their engagement with the procuring entity’s tendering processes, both past and current. In my view, the Review Board’s finding that no cogent evidence was presented to establish that Ann Wambui Ngugi is the same person as Ann Ngugi who witnessed the lease, or that she is an employee of Joymacx Enterprises was not a farfetched finding.
Having examined the evidence adduced before the review Board, this Court notes that no employment records, correspondence, or corporate filings were tendered to establish a legal, managerial or financial association or relationship between the two entities as envisaged under Section 66(8) of the PPADA or ITT clause 4.3.
Besides, while the Applicant alleged shared premises, insurance agent and bank branch, these assertions, without documentary evidence or sworn depositions from persons with actual knowledge, remain speculative. Mere similarities in bid formats, service providers or incidental overlaps do not automatically amount to evidence of collusion or conflict of interest without more.
The Review Board's conclusion that the Applicant had not discharged its burden of proof under Section 107 of the Evidence Act to establish the alleged affiliation or conflict of interest was well founded and within its mandate. Collusion under procurement law must be proved with credible and specific evidence, not conjecture or associa
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