1. The application before this Court is Notice of Motion dated 3rd June, 2025. The application is brought under Order 53 rule 3(1) of the Civil Procedure Rules, 2010, Section 8 and 9 of the Law Reform Act, cap 26, and any other enabling provision of the Law. It seeks the following orders: -
1) That this Honourable Court be pleased to grant order of certiorari to remove into this Honourable Court and quash the directions and/or orders purportedly administratively issued by the Public Procurement Administrative Review Board in Review Application number 119 of 2024 on 23rd December 2024, Summa Turizm Yatimciligi Anonim Sirketi vs The Principal Secretary/Accounting Officer Ministry of Defence and Ministry of Defence.
2) That this Honourable Court be pleased to grant an order of certiorari to remove into this Honourable Court and quash the directions and/or orders purportedly administratively issued by the Public Procurement Administrative Review Board in Review Application number 119 of 2024 on 21st May 2025, Summa Turizm Yatimciligi Anonim Sirketi vs The Principal Secretary/Accounting Officer Ministry of Defence and Ministry of Defence.
3) That this Honourable Court be please to grant an order of certiorari to bring to this Honourable Court for the purposes of being quashed, the proceedings filed in Public Procurement Administrative Review Board Review Application number 119 of 2024 filed on 2nd December 2024, Summa Turizm Yatimciligi Anonim Sirketi vs The Principal Secretary/Accounting Officer Ministry of Defence and Ministry of Defence.
4) That this Honourable Court be please to grant an order of certiorari to bring to this Honourable Court for the purposes of being quashed, the Notice of Motion filed in Public Procurement Administrative Review Board Review Application number 119 of 2024 dated 28th April 2024 and filed on 30th April 2025, Summa Turizm Yatimciligi Anonim Sirketi vs The Principal Secretary/Accounting Officer Ministry of Defence and Ministry of Defence.
5) Costs of and incidental to this suit.
2. The application is supported by a Statutory statement dated 30th May, 2025 a Supporting Affidavit by Dr. Patrick Mariru sworn even date.
3. It is the Applicant’s case that on 21st November 2023, they entered into an Agreement for Transfer of Procuring Responsibility with the Ministry of Gender, Culture, the Arts and Heritage for the design, construction and equipping of the Bomas International Convention Complex to facilitate a more economical and efficient procurement of contractual services of the scope of works.
4. The project implementation for the design, construction and equipping of the Bomas International Convention Complex was earmarked to be funded off-budget through African Export-Import Bank (Afrexim) financing on advice of the National Treasury.
5. It is deposed that the 2nd Applicant invited the 1st Interested Party to submit its bid in response to Direct Tender No. DHQINFRAS/004/23-24 for the proposed design, building and equipping the Bomas International Convention Complex.
6. Thereafter the 1st Interested Party was notified of its award of Direct Tender No. DHQINFRAS/004/23-24 vide a letter dated 22nd November 2023.
7. The Applicants posit that while the 2nd Applicant herein and the 1st Interested Party were negotiating the terms of the contract, the 2nd Interested Party instructed a significant change in the scope of works, which necessitated sourcing an alternative financing model. The 2nd Applicant was, however, limited to the scope of the transferred procurement responsibilities and could not deviate from the 2nd Interested Party’s instructions as defined in the Agreement for Transfer of Procuring Responsibility entered into on 21st November 2023.
8. The Applicants maintain that the 1st Interested Party remained fully apprised of the challenges in securing funding and offered to assist the 2nd Applicant in sourcing 80% of the financing required for the project. Throughout the procurement process, the 1st Interested Party was aware of the Principal-Agent relationship between the 2nd Applicant and the 2nd Interested Party, with the latter remaining accountable for all decisions taken by the 2nd Applicant pursuant to Regulation 39(2) of the Public Procurement and Asset Disposal Act Regulations, 2020. Despite this full knowledge of the Principal, the 1st Interested Party did not amend its pleadings to assert its rights against the 2nd Interested Party accordingly.
9. It is also argued that, the tender validity period ended on 15th March 2024, and the procurement contract had not yet been signed when the 1st Interested Party filed Public Procurement Administrative Review Board Application No. 119 of 2024 on 2nd December 2024.
10. Further on 30th April 2025, the 1st Interested Party filed a Notice of Motion Application dated 28th April 2025 seeking, among other things, an extension of the tender validity period for Direct Tender No. DHQINFRAS/004/23-24.
11. The Applicants contend that the Notice of Motion Application dated 28th April 2025 was filed out of time and without leave, contrary to section 167 (1) of the Public Procurement and Asset Disposal Act, Cap. 412C.
12. The Respondent extended the tender validity period for Direct Tender No. DHQINFRAS/004/23-24 by a further forty-five (45) days from 4th July 2025 in its decision dated 21st May, 2025 which to them they posit that the said decisions dated 23rd December 2024 and 21st May 2025 are illogical and legally unsound.
13. The Applicants urge that the Notice of Motion Application dated 28th April 2025, filed on 30th April 2025, together with the Review Application filed by the 1st Interested Party on 2nd December 2024, were both filed out of time and without leave for enlargement of time, contrary to section 167 (1) of the Public Procurement and Asset Disposal Act, Cap. 412 C.
14. Therefore, according to them in light of the above, the Respondent ought not to have aided the indolence of the 1st Interested Party by entertaining a stale application for review.
15. It is contended that the orders issued by the Respondent were made without jurisdiction, as the 1st Interested Party had not obtained an enlargement of time to file the review out of time.
16. The Applicants argue that the Respondent’s orders in its decision dated 23rd December 2024 exceed the powers conferred under section 173 of the Public Procurement and Asset Disposal Act, Cap. 412 C, and therefore, the Respondent lacked jurisdiction to issue those orders.
17. It is submitted that the 1st Interested Party’s Replying Affidavit dated 12th June 2025 was filed out of time and without obtaining prior leave of the Court, which is a mandatory procedural requirement, therefore, the affidavit should be struck out for being improperly on record as was held in Misc Application No. E029 OF 2023 Okiya Omtata Okoiti vs Cabinet Secretary for National Treasury and Planning.
18. The Exparte applicants argue that the respondent's replying affidavit dated 10th June 2025 is legally defective, as it was filed in violation of a statutory requirement. Because it breaches an Act of Parliament, they submit that the affidavit should be struck out for being improperly before the court.
19. It is urged that this honourable court to be guided by Nicholas Kiptoo Arap Korir Salat V Independent Electoral and Boundaries Commission & 6 Others [2013] eKLR where the court held thus:
“am not in the least persuaded that Article 159 of the Constitution and the oxygen principles which both command courts to seek substantial justice in an efficient, proportionate and cost-effective manner and to eschew defeatist technicalities were ever meant to aid in the overthrow or destruction of rules of procedure and to create an anarchical free-for-all in the administration of justice. This court and indeed all courts must never provide succour and cover to parties who exhibit scant respect for rules and timelines. Those rules and timelines serve to make the process of judicial adjudication and determination fair, just, certain and even handed”
20. The Applicants further submit that the Oaths and Statutory Declarations Act, Cap 15 of the Laws of Kenya, requires that a Commissioner for Oaths indicate their individual particulars and not those of a law firm on the jurat of any sworn statement.
21. It is contended that the Respondent’s Replying Affidavit dated 10th June 2025 lacks such particulars, in violation of Section 5 of the Oaths and Statutory Declarations Act and is therefore legally deficient, warranting its striking out as the breach is substantive and not a mere technicality.
22. They place reliance in the case of Caltex Oil (Kenya) Limited vs. New Stadium Service Station and Another, 2002, eKLR where the court pronounced itself on whether non-compliance with the Oaths and Statutory Declarations Act in the commissioning of affidavits constitutes a mere procedural irregularity, with the court affirming that such non-compliance is a substantive breach of statute and renders the affidavits inadmissible.
23. The Applicants urge this honourable court to thoroughly examine the evidence supporting the Respondent’s decision, and to consider the persuasive findings in Francis Kimani Karanja v Republic [2016] KEHC 4585 (KLR) where the court pronounced itself on issue is whether the appellate court properly reviewed the trial court’s findings on both facts and law, ensuring that any material inconsistencies or errors in evidence were identified to determine if the conviction was safe or should be overturned.
24. The Applicants maintain that while the Respondent in paragraphs 87 and 88 of its 23rd December 2024 decision in Application No. 119 of 2024 misapplied sections 58 (3) and (9) of the Public Procurement and Assets Disposal Act, Cap 412c, it is important to note that these provisions do not cover off-budget procurements or tender termination post-award notification; thus, this court is urged to clarify that the 1st Interested Party’s sole remedy prior to these proceedings was to seek damages for legitimate expectation, not to compel the Applicants to contract without available funds.
25. The 1st Interested Party was awarded the tender on 22nd November 2023, but due to a scope change directed by the 2nd Interested Party, alternative financing was needed; under the Principal-Agent Agreement and regulations, the 2nd Applicant had to follow the 1st Interested Party’s instructions, who also helped source 80% of the project funding.
26. The Applicants assert that where the Principal in a Principal-Agent relationship is disclosed, the opposing party is estopped from pursuing the Agent to enforce legal rights. They further aver that the tender validity period expired on 15th March 2024, prior to the signing of the procurement contract. Despite this, the 1st Interested Party filed the Public Procurement Administrative Review Board Application No. 119 of 2024 on 2nd December 2024.
27. The Applicants contend that this review was filed out of time and without leave for extension, contrary to section 167 (1) of the Public Procurement and Assets Disposal Act, Cap 412 c. Consequently, any actions undertaken beyond the tender validity period were unauthorized, ultra vires, and the Respondent, by acquiescing to such actions, acted unlawfully.
28. Reliance is placed in Republic v Public Procureme·nt Administrative Review Board Ex parte Meru- “University of Science & Technology; M/S Aaki Consultants Architects and Urban Designers (Interested Party) [2019] KEHC 9313 (KLR) while quashing the decision of the Respondent dated 16th February 2016 Republic vs Public Procurement Administrative Review Board & 2 Others 331 the Court held that:
“The jurisdiction of the Board is only available where an application for review has been filed within 14 days from the date of the delivery of the results of the tender process or from the date of the occurrence of an alleged breach where the tender process has not been concluded. The Board has no jurisdiction to hear anything filed outside fourteen days the jurisdiction of the Board is only available where an application for ...The Board acted outside its jurisdiction by hearing the matter which was filed after 7 days from the date of the notification of the results of the tender. By doing so, the Board engaged in a futile exercise which amounts to nothing...”
29. It is submitted that with respect to the Notice of Motion dated 28th April 2025 and the Respondent’s decision incidental thereto dated 21st May 2025, the Applicants observe that the purported 45-day further extension of the tender validity period will run until 4th July 2025. They contend that the Respondent’s position on this matter is legally untenable. Furthermore, the Notice of Motion Application dated 28th April 2025 was filed 38 days after 23rd March 2025, which itself followed the expiration of the 90-day extension of the tender validity period granted by the Respondent’s decision on 23rd December 2024.
30. The Applicants invoke sections 28, 167 (1), 173 and 175 (4) and (5) of the Public Procurement and Assets Disposal Act, Cap 412 C.
31. The Applicants also submit that the subject matter of the tender and review application is the same, and the Respondent’s decision of 23rd December 2024 has been finally determined by both the High Court and Court of Appeal. Under section 175 (4) of the Public Procurement Act, this decision is final. Therefore, enforcement should be sought in court, not via further motions before the Review Board. After the Court of Appeal’s ruling, the Respondent no longer has jurisdiction to reconsider the matter, as section 173 limits its powers to a single initial review.
32. It is contended that Parliament did not intend to allow multiple reviews on the same matter under section 173 of the Public Procurement Act, as evidenced by the phrase “Upon completing a review,” which indicates a singular event. Had Parliament intended otherwise, it would have explicitly provided for further reviews, as it has done in other legislation, such as section 159 of the Kenya Defence Forces Act, Cap 199. It provides as follows:
“... 159. Automatic administrative review
(1) Upon reaching a determination in relation to any offence tried by the commanding officer, the commanding officer shall, within fourteen days, submit the findings of the trial in writing, to a superior commander for review.
(2) The superior commander shall within fourteen days of receipt of the findings, review the findings and inform the accused person of the outcome of the review, in writing.
(3) The administrative review under subsection (1) shall not preclude the accused person from seeking other legal redress from any other authority provided for under this Act or any other written law, or applying for a review to the Defence Council ...”
33. The Applicants further submit that the Respondent, by purporting to exercise powers under section 173 of the Public Procurement and Assets Disposal Act, Cap 412 C in its decision of 21st May 2025, acted without jurisdiction, having already become functus officio. They therefore urge this Honourable Court to be guided by this principle.
34. According to them, the Respondent exceeded the scope of the pleadings before it.
35. It is submitted that the Request for Review and the supporting statement dated 2nd December 2024 were both prepared by V. A. Nyamodi & Company Advocates, a Kenyan law firm, but were dated in Istanbul and signed by Ahmet Envar Sayan on behalf of the 1st Interested Party. They invite this Honourable Court to take judicial notice, under sections 59 and 60 of the Evidence Act, Cap 80, that Istanbul is a city in Turkey, which is not a Commonwealth country. The exception to this rule is in section 88 which states as follows:
“... 88. Documents admissible in England.
When any document is produced before any court, purporting to be a document which, by the law in force for the time being in England, would be admissible in proof of any particular in any Court of Justice in England, without proof of the seal or stamp or signature authenticating it, or of the judicial or official character claimed by the person by whom it purports to be signed-
(a) the court shall presume that such seal, stamp or signature is genuine, and that the person signing it held, at the time when he signed it, the judicial or official character which he claims in such document; and
(b) the document shall be admissible for the same purpose for which it would be admissible in England ..."
36. The Applicants assert that the Respondent should notarized its documents as required under section 88 of the Evidence Act, Cap 80, to be legally recognized in Kenya. They further contend that the 1st Interested Party has produced no evidence that such notarization occurred. Consequently, the Applicants submit that the entire proceedings and decision in Public Procurement Administrative Review Board Application No. 119 of 2024 are founded on an illegality in limine and should be quashed as prayed in the Notice of Motion dated 17th January 2025.
37. In the case of Peeraj General Trading & Contrading Company Limited, Kenya & Another v Mumia Sugar Company Limited (2016) eKLR, the court held thus: -
“... In England by virtue of Order 41 rule 12 of the Rules of the Supreme Court, affidavits taken in commonwealth countries are admissible in evidence without proof of the stamp, seal or the official position of the person taking the affidavit. The same position obtains in Kenya. As there is no such presumption in favour of documents made outside the commonwealth, it follows that the affidavit in the instant case, which was taken in Dubai, in the United Arab Emirates, would have to be proved by affidavit or otherwise to have been taken by a Notary Public in UAE and that the signature and seal of attestation affixed thereto was that of such Notary Public…”
38. The Applicants submit that Article 159 of the Constitution does not override the clear evidentiary rules under section 88 of the Evidence Act, Cap 80, which governs the admissibility of documents in Kenyan courts.
39. The Applicants refer to the judgment in Adetoun Oladeji (Nig) Ltd v. Nigeria Breweries Plc S.C. 91/2002 to highlight that although the 1st Interested Party requested a 60-day contract completion period, the Respondent unilaterally and suo moto extended the procurement process to 90 days. The Applicants contend that the Respondent exceeded the parties’ prayer and that neither the 60 days requested nor the 90 days granted is valid. Instead, they submit that only a maximum 30-day extension of the tender validity period, as prescribed under the Public Procurement and Assets Disposal Act, cap 412 C, is lawful.
40. It is contended that in the Memorandum of Response dated 9th December 2024, the Ex-Porte Applicants submitted to the Respondent, as exhibits, the Agreement dated 21st November 2023 for Transfer of Procuring Responsibility involving the Ministry of Gender, Culture, Arts and Heritage for the design, construction, and equipping of the Bomas International Convention Complex. They also submitted letters dated 14th August 2023 from the Public Procurement Regulatory Authority and 3rd August 2023 from the Ministry of Tourism, Wildlife and Heritage.
41. Further, Paragraphs 4 and 5 of the Agreement clearly define the obligations of the parties, establishing a Principal-Agent relationship between the 2nd Applicant and the 2nd Interested Party. An excerpt is provided for reference.
42. The Applicants submit that the letters dated 14th August 2023 from the Public Procurement Regulatory Authority and 3rd August 2023 from the Ministry of Tourism, Wildlife and Heritage disclosed the 2nd Interested Party’s responsibilities and the project’s funding source to the Respondent. The Respondent’s denial of such knowledge in paragraph 90 of its decision is irrational and unfounded. Furthermore, prior to the Agreement dated 21st November 2023, the 1st Interested Party was already negotiating with the 2nd Interested Party regarding the project, as evidenced by a letter dated 7th July 2023, demonstrating that the 1st Interested Party was fully aware of the Principal.
43. The 1st Interested Party, 2nd Interested Party, and Applicants held meetings at the Ministry of Defence Headquarters in August and November 2023 to discuss the project’s implementation and financing. Throughout this period, the 1st Interested Party was kept informed of the Government’s unsuccessful attempts to secure funding, which ultimately resulted in the cancellation of the tender.
44. The Applicants assert that the 1st Interested Party, despite full knowledge and disclosure of the Principal-Agent relationship in Direct Tender No. DHQINFRAS/004/23-24, deliberately joined the Public Procurement Administrative Review Board Application No. 119 of 2024 to subvert justice. The denial under oath by the 1st Interested Party of this relationship, especially by the deponent to the Replying Affidavit dated 31st January 2025 who attended and signed the technical committee meeting attendance sheet on 22nd December 2023, is a criminal offence. The Applicants submit that the 1st Interested Party has acted with unclean hands and should therefore be denied relief due to its inequitable conduct.
45. The Applicants contend that the Respondents deliberately disregarded material facts proving the Principal-Agent relationship between the Applicants and the 2nd Interested Party, despite acknowledging such evidence in paragraph 85 of its decision. The Respondents’ selective consideration of evidence led to an irrational and wrongful decision in Public Procurement Administrative Review Board Application No. 119 of 2024. Furthermore, the Respondents ignored Article 201 of the Constitution and section 44(2)(e) of the Public Procurement and Assets Disposal Act, compelling the Applicants to contract without proper funding an irrational act violating public finance laws. Therefore, the Respondents’ decisions dated 23rd December 2024 and 21st May 2025 are founded on illegality, void, and should be dismissed outright. The Applicants urge the Court to be guided by the case of Macfoy vs United Africa ltd (1961) 3 Ail ER 1169 at page 1172 it was held:
“...if an act is void, then if is in law a nullity and not a mere irregularity. If is not only bad but incurably bad. There is no need for an order to set aside. If is automatically null and void and without more ado, though if is sometimes convenient to have the court declare it to be so. And any proceeding which is founded on if is also bad and incurably bad. You cannot put something on nothing and expect if to stay there. If will collapse...”
46. The Applicants further filed a supplementary Affidavit dated 16th June, 2025 and Supplementary Submissions dated 2nd July, 2025 without leave of this Honorable court.
47. In the Supplementary Affidavit R A Nyonje depones that the Request for Review dated 2nd December 2024 and the Statement in Support of the Request for Review dated 2nd December 2024 have been both been drawn by the firm of V. A. Nyamodi & Company Advocates, a law firm registered and regulated by the laws of Kenya.
48. It is further deponed that both the Request for Review and the Statement in Support of the Request for Review have been dated at Istanbul and signed on behalf of the 1st Interested Party by Ahmet Envar Sayan.
49. Subsequent to entry into force of the Agreement dated 21st November 2023 for Transfer of Procuring Responsibility with the Ministry of Gender, Culture, the Arts and Heritage, on 22nd November 2023 the 1st Interested Party, the 2nd Interested Party, and the Ex-Parte Applicantsthrough their representatives held a meeting at the Ministry of Defence Headquarters to discuss implementation of the project and the source of financing.
50. Throughout the engagement for the design, construction and equipping of the Bomas International Convention Complex the 1st Interested Party was apprised of efforts by the Government to secure financing which was not forthcoming resulting into the cancellation of the tender.
51. The Order of this honourable court imposed clear timelines in which particular events were supposed to unfold the Applicants filed further submissions highlighting the following.
52. On 30th June 2025 when the matter came up for mention, counsel on record for the Applicants intimated that he had not been served with the submissions by the parties in line with the court directions. This position persists as at the date of this submissions.
53. Compliance with court directions is non-negotiable and neither are they supposed to be complied with whimsically. In this regard, the Applicants, while urging the this honourable court to strike out any submissions by the Respondent for non-compliance, reiterate the decision of the Supreme court in:
SC Application No. E029 OF 2023 Okiya Omtata Okoiti vs Cabinet Secretary for National Treasury and Planning where the court held as follows
“…[26] Taking all the above matters into account, we must state that, this Court has on several instances underscored the importance of compliance with its Orders, Rules and Practice Directions. With regard to filing and service of documents within the requisite time, the Court has in a long line of decisions stressed that it will not countenance breaches of timelines set by the Rules or by the Court, and affirmed the general constitutional principle that justice shall not be delayed. See Independent Electoral & Boundaries Commission v. Jane Cheperenger & 2 Others, SC Petition No. 5 of 2016; [2018] eKLR and Kenya Railways Corporation & 2 Others v. Okoiti & 3 Others, SC Petition (Application) No. 13 of 2020 & Petition 18 of 2020 (Consolidated)); [2022] KESC 68 (KLR). It goes without saying that compliance with court orders goes to the root of the rule of law as well as the dignity of any court.
[27] Neither the Supreme Court Act nor the Supreme Court Rules or this Court’s Practice Directions permit the applicants to file written submissions in the manner that they did. Rule 31 of this Court’s Rules stipulates that an interlocutory application, such as the applicants’, should be filed together with written submissions. Therefore, we find it irregular for parties to file joint submissions as well as separate submissions at the same time. Not only would it be repetitive but also unnecessary and a waste of precious judicial time. In any event, based on the directions issued, the applicants’ submissions were to be served together with the Motion. In the end and without belabouring the point, we hereby strike out the four sets of the applicants’ written submissions. In addition, we caution litigants to adhere to the Court’s Practice Directions relating to the length of written submissions lodged before the Court, as explained in the preceding paragraph.
[28] Moving onto the respondents’ responses and/or submissions, we are not convinced with the explanation for the delay. To begin with, litigants and advocates should accord this Court the respect and decorum it deserves as the apex Court of the land. Further, nothing has been placed before us to substantiate the contention by the 5th and 9th respondents that the delay was occasioned by difficulties in accessing the Court’s online platform.
[29] Be that as it may, to accede to the respondents’ prayer to deem the responses and/or submissions filed out of time as properly before the Court is tantamount to sanctioning an illegality. The respondents ought to have first sought leave of the Court to file their responses out of time prior to filing the same. See Nicholas Kiptoo Arap Korir Salat v. Independent Electoral and Boundaries Commission & 7 Others, SC Applic. No 16 of 2014; [2014] eKLR and University of Eldoret & another v. Hosea Sitienei & 3 Others, SC Applic. No. 8 of 2020; [2020] eKLR…” (emphasis added)
The Ex-Parte Applicants have not been able to put in their rebuttal submissions for this reason and humbly urge this honourable court to be persuaded by the decision in:
BOD County Referral Hospital Kitale & another v DN (Suing through her next friend & Grandmother SK) (Civil Appeal E043 of 2023) [2025] KEHC 5344 (KLR) (30 April 2025) where it was held:
“…27.The electronic mail extract referred to in paragraph above was a copy of the email that attached the hearing notice sent by Vivian xxxx.com to xxxx.com. The email requested the recipient to acknowledge receipt thereof. The affidavit, however, contains no further evidence on whether there was confirmation of receipt of the email.
28.Returning to Order 5 Rule 22B [4] of the Civil Procedure Rules, an Affidavit of Service is supposed to attach an Electronic Mail Service delivery receipt as the confirmation of service. What then is an email delivery receipt? Simply put, an email delivery receipt is a notification confirming that an email message was delivered to the recipient's mailbox. It must, however, be understood that an email delivery receipt is different from an email read receipt. The latter is a notification confirming that the email message was opened and/or read by the recipient.
29.In this case, the law calls for only an email delivery receipt. As such, as far as there is evidence that the email was delivered to the recipient’s mailbox, service thereof is confirmed. How then does a sender of an email get a delivery receipt? For one to receive a delivery or read receipt in respect of an email sent to a recipient, the sender must activate the appropriate settings in the email set up. Once the settings are in place, a delivered and/or read receipt, as the case may be, will automatically be received by the sender once the email is delivered and/or read. It is that delivery receipt which the law calls upon a sender to annex to an affidavit of service as evidence of service through electronic mail.
30.The Respondent’s Counsel
[...truncated]
1) That this Honourable Court be pleased to grant order of certiorari to remove into this Honourable Court and quash the directions and/or orders purportedly administratively issued by the Public Procurement Administrative Review Board in Review Application number 119 of 2024 on 23rd December 2024, Summa Turizm Yatimciligi Anonim Sirketi vs The Principal Secretary/Accounting Officer Ministry of Defence and Ministry of Defence.
2) That this Honourable Court be pleased to grant an order of certiorari to remove into this Honourable Court and quash the directions and/or orders purportedly administratively issued by the Public Procurement Administrative Review Board in Review Application number 119 of 2024 on 21st May 2025, Summa Turizm Yatimciligi Anonim Sirketi vs The Principal Secretary/Accounting Officer Ministry of Defence and Ministry of Defence.
3) That this Honourable Court be please to grant an order of certiorari to bring to this Honourable Court for the purposes of being quashed, the proceedings filed in Public Procurement Administrative Review Board Review Application number 119 of 2024 filed on 2nd December 2024, Summa Turizm Yatimciligi Anonim Sirketi vs The Principal Secretary/Accounting Officer Ministry of Defence and Ministry of Defence.
4) That this Honourable Court be please to grant an order of certiorari to bring to this Honourable Court for the purposes of being quashed, the Notice of Motion filed in Public Procurement Administrative Review Board Review Application number 119 of 2024 dated 28th April 2024 and filed on 30th April 2025, Summa Turizm Yatimciligi Anonim Sirketi vs The Principal Secretary/Accounting Officer Ministry of Defence and Ministry of Defence.
5) Costs of and incidental to this suit.
2. The application is supported by a Statutory statement dated 30th May, 2025 a Supporting Affidavit by Dr. Patrick Mariru sworn even date.
3. It is the Applicant’s case that on 21st November 2023, they entered into an Agreement for Transfer of Procuring Responsibility with the Ministry of Gender, Culture, the Arts and Heritage for the design, construction and equipping of the Bomas International Convention Complex to facilitate a more economical and efficient procurement of contractual services of the scope of works.
4. The project implementation for the design, construction and equipping of the Bomas International Convention Complex was earmarked to be funded off-budget through African Export-Import Bank (Afrexim) financing on advice of the National Treasury.
5. It is deposed that the 2nd Applicant invited the 1st Interested Party to submit its bid in response to Direct Tender No. DHQINFRAS/004/23-24 for the proposed design, building and equipping the Bomas International Convention Complex.
6. Thereafter the 1st Interested Party was notified of its award of Direct Tender No. DHQINFRAS/004/23-24 vide a letter dated 22nd November 2023.
7. The Applicants posit that while the 2nd Applicant herein and the 1st Interested Party were negotiating the terms of the contract, the 2nd Interested Party instructed a significant change in the scope of works, which necessitated sourcing an alternative financing model. The 2nd Applicant was, however, limited to the scope of the transferred procurement responsibilities and could not deviate from the 2nd Interested Party’s instructions as defined in the Agreement for Transfer of Procuring Responsibility entered into on 21st November 2023.
8. The Applicants maintain that the 1st Interested Party remained fully apprised of the challenges in securing funding and offered to assist the 2nd Applicant in sourcing 80% of the financing required for the project. Throughout the procurement process, the 1st Interested Party was aware of the Principal-Agent relationship between the 2nd Applicant and the 2nd Interested Party, with the latter remaining accountable for all decisions taken by the 2nd Applicant pursuant to Regulation 39(2) of the Public Procurement and Asset Disposal Act Regulations, 2020. Despite this full knowledge of the Principal, the 1st Interested Party did not amend its pleadings to assert its rights against the 2nd Interested Party accordingly.
9. It is also argued that, the tender validity period ended on 15th March 2024, and the procurement contract had not yet been signed when the 1st Interested Party filed Public Procurement Administrative Review Board Application No. 119 of 2024 on 2nd December 2024.
10. Further on 30th April 2025, the 1st Interested Party filed a Notice of Motion Application dated 28th April 2025 seeking, among other things, an extension of the tender validity period for Direct Tender No. DHQINFRAS/004/23-24.
11. The Applicants contend that the Notice of Motion Application dated 28th April 2025 was filed out of time and without leave, contrary to section 167 (1) of the Public Procurement and Asset Disposal Act, Cap. 412C.
12. The Respondent extended the tender validity period for Direct Tender No. DHQINFRAS/004/23-24 by a further forty-five (45) days from 4th July 2025 in its decision dated 21st May, 2025 which to them they posit that the said decisions dated 23rd December 2024 and 21st May 2025 are illogical and legally unsound.
13. The Applicants urge that the Notice of Motion Application dated 28th April 2025, filed on 30th April 2025, together with the Review Application filed by the 1st Interested Party on 2nd December 2024, were both filed out of time and without leave for enlargement of time, contrary to section 167 (1) of the Public Procurement and Asset Disposal Act, Cap. 412 C.
14. Therefore, according to them in light of the above, the Respondent ought not to have aided the indolence of the 1st Interested Party by entertaining a stale application for review.
15. It is contended that the orders issued by the Respondent were made without jurisdiction, as the 1st Interested Party had not obtained an enlargement of time to file the review out of time.
16. The Applicants argue that the Respondent’s orders in its decision dated 23rd December 2024 exceed the powers conferred under section 173 of the Public Procurement and Asset Disposal Act, Cap. 412 C, and therefore, the Respondent lacked jurisdiction to issue those orders.
17. It is submitted that the 1st Interested Party’s Replying Affidavit dated 12th June 2025 was filed out of time and without obtaining prior leave of the Court, which is a mandatory procedural requirement, therefore, the affidavit should be struck out for being improperly on record as was held in Misc Application No. E029 OF 2023 Okiya Omtata Okoiti vs Cabinet Secretary for National Treasury and Planning.
18. The Exparte applicants argue that the respondent's replying affidavit dated 10th June 2025 is legally defective, as it was filed in violation of a statutory requirement. Because it breaches an Act of Parliament, they submit that the affidavit should be struck out for being improperly before the court.
19. It is urged that this honourable court to be guided by Nicholas Kiptoo Arap Korir Salat V Independent Electoral and Boundaries Commission & 6 Others [2013] eKLR where the court held thus:
“am not in the least persuaded that Article 159 of the Constitution and the oxygen principles which both command courts to seek substantial justice in an efficient, proportionate and cost-effective manner and to eschew defeatist technicalities were ever meant to aid in the overthrow or destruction of rules of procedure and to create an anarchical free-for-all in the administration of justice. This court and indeed all courts must never provide succour and cover to parties who exhibit scant respect for rules and timelines. Those rules and timelines serve to make the process of judicial adjudication and determination fair, just, certain and even handed”
20. The Applicants further submit that the Oaths and Statutory Declarations Act, Cap 15 of the Laws of Kenya, requires that a Commissioner for Oaths indicate their individual particulars and not those of a law firm on the jurat of any sworn statement.
21. It is contended that the Respondent’s Replying Affidavit dated 10th June 2025 lacks such particulars, in violation of Section 5 of the Oaths and Statutory Declarations Act and is therefore legally deficient, warranting its striking out as the breach is substantive and not a mere technicality.
22. They place reliance in the case of Caltex Oil (Kenya) Limited vs. New Stadium Service Station and Another, 2002, eKLR where the court pronounced itself on whether non-compliance with the Oaths and Statutory Declarations Act in the commissioning of affidavits constitutes a mere procedural irregularity, with the court affirming that such non-compliance is a substantive breach of statute and renders the affidavits inadmissible.
23. The Applicants urge this honourable court to thoroughly examine the evidence supporting the Respondent’s decision, and to consider the persuasive findings in Francis Kimani Karanja v Republic [2016] KEHC 4585 (KLR) where the court pronounced itself on issue is whether the appellate court properly reviewed the trial court’s findings on both facts and law, ensuring that any material inconsistencies or errors in evidence were identified to determine if the conviction was safe or should be overturned.
24. The Applicants maintain that while the Respondent in paragraphs 87 and 88 of its 23rd December 2024 decision in Application No. 119 of 2024 misapplied sections 58 (3) and (9) of the Public Procurement and Assets Disposal Act, Cap 412c, it is important to note that these provisions do not cover off-budget procurements or tender termination post-award notification; thus, this court is urged to clarify that the 1st Interested Party’s sole remedy prior to these proceedings was to seek damages for legitimate expectation, not to compel the Applicants to contract without available funds.
25. The 1st Interested Party was awarded the tender on 22nd November 2023, but due to a scope change directed by the 2nd Interested Party, alternative financing was needed; under the Principal-Agent Agreement and regulations, the 2nd Applicant had to follow the 1st Interested Party’s instructions, who also helped source 80% of the project funding.
26. The Applicants assert that where the Principal in a Principal-Agent relationship is disclosed, the opposing party is estopped from pursuing the Agent to enforce legal rights. They further aver that the tender validity period expired on 15th March 2024, prior to the signing of the procurement contract. Despite this, the 1st Interested Party filed the Public Procurement Administrative Review Board Application No. 119 of 2024 on 2nd December 2024.
27. The Applicants contend that this review was filed out of time and without leave for extension, contrary to section 167 (1) of the Public Procurement and Assets Disposal Act, Cap 412 c. Consequently, any actions undertaken beyond the tender validity period were unauthorized, ultra vires, and the Respondent, by acquiescing to such actions, acted unlawfully.
28. Reliance is placed in Republic v Public Procureme·nt Administrative Review Board Ex parte Meru- “University of Science & Technology; M/S Aaki Consultants Architects and Urban Designers (Interested Party) [2019] KEHC 9313 (KLR) while quashing the decision of the Respondent dated 16th February 2016 Republic vs Public Procurement Administrative Review Board & 2 Others 331 the Court held that:
“The jurisdiction of the Board is only available where an application for review has been filed within 14 days from the date of the delivery of the results of the tender process or from the date of the occurrence of an alleged breach where the tender process has not been concluded. The Board has no jurisdiction to hear anything filed outside fourteen days the jurisdiction of the Board is only available where an application for ...The Board acted outside its jurisdiction by hearing the matter which was filed after 7 days from the date of the notification of the results of the tender. By doing so, the Board engaged in a futile exercise which amounts to nothing...”
29. It is submitted that with respect to the Notice of Motion dated 28th April 2025 and the Respondent’s decision incidental thereto dated 21st May 2025, the Applicants observe that the purported 45-day further extension of the tender validity period will run until 4th July 2025. They contend that the Respondent’s position on this matter is legally untenable. Furthermore, the Notice of Motion Application dated 28th April 2025 was filed 38 days after 23rd March 2025, which itself followed the expiration of the 90-day extension of the tender validity period granted by the Respondent’s decision on 23rd December 2024.
30. The Applicants invoke sections 28, 167 (1), 173 and 175 (4) and (5) of the Public Procurement and Assets Disposal Act, Cap 412 C.
31. The Applicants also submit that the subject matter of the tender and review application is the same, and the Respondent’s decision of 23rd December 2024 has been finally determined by both the High Court and Court of Appeal. Under section 175 (4) of the Public Procurement Act, this decision is final. Therefore, enforcement should be sought in court, not via further motions before the Review Board. After the Court of Appeal’s ruling, the Respondent no longer has jurisdiction to reconsider the matter, as section 173 limits its powers to a single initial review.
32. It is contended that Parliament did not intend to allow multiple reviews on the same matter under section 173 of the Public Procurement Act, as evidenced by the phrase “Upon completing a review,” which indicates a singular event. Had Parliament intended otherwise, it would have explicitly provided for further reviews, as it has done in other legislation, such as section 159 of the Kenya Defence Forces Act, Cap 199. It provides as follows:
“... 159. Automatic administrative review
(1) Upon reaching a determination in relation to any offence tried by the commanding officer, the commanding officer shall, within fourteen days, submit the findings of the trial in writing, to a superior commander for review.
(2) The superior commander shall within fourteen days of receipt of the findings, review the findings and inform the accused person of the outcome of the review, in writing.
(3) The administrative review under subsection (1) shall not preclude the accused person from seeking other legal redress from any other authority provided for under this Act or any other written law, or applying for a review to the Defence Council ...”
33. The Applicants further submit that the Respondent, by purporting to exercise powers under section 173 of the Public Procurement and Assets Disposal Act, Cap 412 C in its decision of 21st May 2025, acted without jurisdiction, having already become functus officio. They therefore urge this Honourable Court to be guided by this principle.
34. According to them, the Respondent exceeded the scope of the pleadings before it.
35. It is submitted that the Request for Review and the supporting statement dated 2nd December 2024 were both prepared by V. A. Nyamodi & Company Advocates, a Kenyan law firm, but were dated in Istanbul and signed by Ahmet Envar Sayan on behalf of the 1st Interested Party. They invite this Honourable Court to take judicial notice, under sections 59 and 60 of the Evidence Act, Cap 80, that Istanbul is a city in Turkey, which is not a Commonwealth country. The exception to this rule is in section 88 which states as follows:
“... 88. Documents admissible in England.
When any document is produced before any court, purporting to be a document which, by the law in force for the time being in England, would be admissible in proof of any particular in any Court of Justice in England, without proof of the seal or stamp or signature authenticating it, or of the judicial or official character claimed by the person by whom it purports to be signed-
(a) the court shall presume that such seal, stamp or signature is genuine, and that the person signing it held, at the time when he signed it, the judicial or official character which he claims in such document; and
(b) the document shall be admissible for the same purpose for which it would be admissible in England ..."
36. The Applicants assert that the Respondent should notarized its documents as required under section 88 of the Evidence Act, Cap 80, to be legally recognized in Kenya. They further contend that the 1st Interested Party has produced no evidence that such notarization occurred. Consequently, the Applicants submit that the entire proceedings and decision in Public Procurement Administrative Review Board Application No. 119 of 2024 are founded on an illegality in limine and should be quashed as prayed in the Notice of Motion dated 17th January 2025.
37. In the case of Peeraj General Trading & Contrading Company Limited, Kenya & Another v Mumia Sugar Company Limited (2016) eKLR, the court held thus: -
“... In England by virtue of Order 41 rule 12 of the Rules of the Supreme Court, affidavits taken in commonwealth countries are admissible in evidence without proof of the stamp, seal or the official position of the person taking the affidavit. The same position obtains in Kenya. As there is no such presumption in favour of documents made outside the commonwealth, it follows that the affidavit in the instant case, which was taken in Dubai, in the United Arab Emirates, would have to be proved by affidavit or otherwise to have been taken by a Notary Public in UAE and that the signature and seal of attestation affixed thereto was that of such Notary Public…”
38. The Applicants submit that Article 159 of the Constitution does not override the clear evidentiary rules under section 88 of the Evidence Act, Cap 80, which governs the admissibility of documents in Kenyan courts.
39. The Applicants refer to the judgment in Adetoun Oladeji (Nig) Ltd v. Nigeria Breweries Plc S.C. 91/2002 to highlight that although the 1st Interested Party requested a 60-day contract completion period, the Respondent unilaterally and suo moto extended the procurement process to 90 days. The Applicants contend that the Respondent exceeded the parties’ prayer and that neither the 60 days requested nor the 90 days granted is valid. Instead, they submit that only a maximum 30-day extension of the tender validity period, as prescribed under the Public Procurement and Assets Disposal Act, cap 412 C, is lawful.
40. It is contended that in the Memorandum of Response dated 9th December 2024, the Ex-Porte Applicants submitted to the Respondent, as exhibits, the Agreement dated 21st November 2023 for Transfer of Procuring Responsibility involving the Ministry of Gender, Culture, Arts and Heritage for the design, construction, and equipping of the Bomas International Convention Complex. They also submitted letters dated 14th August 2023 from the Public Procurement Regulatory Authority and 3rd August 2023 from the Ministry of Tourism, Wildlife and Heritage.
41. Further, Paragraphs 4 and 5 of the Agreement clearly define the obligations of the parties, establishing a Principal-Agent relationship between the 2nd Applicant and the 2nd Interested Party. An excerpt is provided for reference.
42. The Applicants submit that the letters dated 14th August 2023 from the Public Procurement Regulatory Authority and 3rd August 2023 from the Ministry of Tourism, Wildlife and Heritage disclosed the 2nd Interested Party’s responsibilities and the project’s funding source to the Respondent. The Respondent’s denial of such knowledge in paragraph 90 of its decision is irrational and unfounded. Furthermore, prior to the Agreement dated 21st November 2023, the 1st Interested Party was already negotiating with the 2nd Interested Party regarding the project, as evidenced by a letter dated 7th July 2023, demonstrating that the 1st Interested Party was fully aware of the Principal.
43. The 1st Interested Party, 2nd Interested Party, and Applicants held meetings at the Ministry of Defence Headquarters in August and November 2023 to discuss the project’s implementation and financing. Throughout this period, the 1st Interested Party was kept informed of the Government’s unsuccessful attempts to secure funding, which ultimately resulted in the cancellation of the tender.
44. The Applicants assert that the 1st Interested Party, despite full knowledge and disclosure of the Principal-Agent relationship in Direct Tender No. DHQINFRAS/004/23-24, deliberately joined the Public Procurement Administrative Review Board Application No. 119 of 2024 to subvert justice. The denial under oath by the 1st Interested Party of this relationship, especially by the deponent to the Replying Affidavit dated 31st January 2025 who attended and signed the technical committee meeting attendance sheet on 22nd December 2023, is a criminal offence. The Applicants submit that the 1st Interested Party has acted with unclean hands and should therefore be denied relief due to its inequitable conduct.
45. The Applicants contend that the Respondents deliberately disregarded material facts proving the Principal-Agent relationship between the Applicants and the 2nd Interested Party, despite acknowledging such evidence in paragraph 85 of its decision. The Respondents’ selective consideration of evidence led to an irrational and wrongful decision in Public Procurement Administrative Review Board Application No. 119 of 2024. Furthermore, the Respondents ignored Article 201 of the Constitution and section 44(2)(e) of the Public Procurement and Assets Disposal Act, compelling the Applicants to contract without proper funding an irrational act violating public finance laws. Therefore, the Respondents’ decisions dated 23rd December 2024 and 21st May 2025 are founded on illegality, void, and should be dismissed outright. The Applicants urge the Court to be guided by the case of Macfoy vs United Africa ltd (1961) 3 Ail ER 1169 at page 1172 it was held:
“...if an act is void, then if is in law a nullity and not a mere irregularity. If is not only bad but incurably bad. There is no need for an order to set aside. If is automatically null and void and without more ado, though if is sometimes convenient to have the court declare it to be so. And any proceeding which is founded on if is also bad and incurably bad. You cannot put something on nothing and expect if to stay there. If will collapse...”
46. The Applicants further filed a supplementary Affidavit dated 16th June, 2025 and Supplementary Submissions dated 2nd July, 2025 without leave of this Honorable court.
47. In the Supplementary Affidavit R A Nyonje depones that the Request for Review dated 2nd December 2024 and the Statement in Support of the Request for Review dated 2nd December 2024 have been both been drawn by the firm of V. A. Nyamodi & Company Advocates, a law firm registered and regulated by the laws of Kenya.
48. It is further deponed that both the Request for Review and the Statement in Support of the Request for Review have been dated at Istanbul and signed on behalf of the 1st Interested Party by Ahmet Envar Sayan.
49. Subsequent to entry into force of the Agreement dated 21st November 2023 for Transfer of Procuring Responsibility with the Ministry of Gender, Culture, the Arts and Heritage, on 22nd November 2023 the 1st Interested Party, the 2nd Interested Party, and the Ex-Parte Applicantsthrough their representatives held a meeting at the Ministry of Defence Headquarters to discuss implementation of the project and the source of financing.
50. Throughout the engagement for the design, construction and equipping of the Bomas International Convention Complex the 1st Interested Party was apprised of efforts by the Government to secure financing which was not forthcoming resulting into the cancellation of the tender.
51. The Order of this honourable court imposed clear timelines in which particular events were supposed to unfold the Applicants filed further submissions highlighting the following.
52. On 30th June 2025 when the matter came up for mention, counsel on record for the Applicants intimated that he had not been served with the submissions by the parties in line with the court directions. This position persists as at the date of this submissions.
53. Compliance with court directions is non-negotiable and neither are they supposed to be complied with whimsically. In this regard, the Applicants, while urging the this honourable court to strike out any submissions by the Respondent for non-compliance, reiterate the decision of the Supreme court in:
SC Application No. E029 OF 2023 Okiya Omtata Okoiti vs Cabinet Secretary for National Treasury and Planning where the court held as follows
“…[26] Taking all the above matters into account, we must state that, this Court has on several instances underscored the importance of compliance with its Orders, Rules and Practice Directions. With regard to filing and service of documents within the requisite time, the Court has in a long line of decisions stressed that it will not countenance breaches of timelines set by the Rules or by the Court, and affirmed the general constitutional principle that justice shall not be delayed. See Independent Electoral & Boundaries Commission v. Jane Cheperenger & 2 Others, SC Petition No. 5 of 2016; [2018] eKLR and Kenya Railways Corporation & 2 Others v. Okoiti & 3 Others, SC Petition (Application) No. 13 of 2020 & Petition 18 of 2020 (Consolidated)); [2022] KESC 68 (KLR). It goes without saying that compliance with court orders goes to the root of the rule of law as well as the dignity of any court.
[27] Neither the Supreme Court Act nor the Supreme Court Rules or this Court’s Practice Directions permit the applicants to file written submissions in the manner that they did. Rule 31 of this Court’s Rules stipulates that an interlocutory application, such as the applicants’, should be filed together with written submissions. Therefore, we find it irregular for parties to file joint submissions as well as separate submissions at the same time. Not only would it be repetitive but also unnecessary and a waste of precious judicial time. In any event, based on the directions issued, the applicants’ submissions were to be served together with the Motion. In the end and without belabouring the point, we hereby strike out the four sets of the applicants’ written submissions. In addition, we caution litigants to adhere to the Court’s Practice Directions relating to the length of written submissions lodged before the Court, as explained in the preceding paragraph.
[28] Moving onto the respondents’ responses and/or submissions, we are not convinced with the explanation for the delay. To begin with, litigants and advocates should accord this Court the respect and decorum it deserves as the apex Court of the land. Further, nothing has been placed before us to substantiate the contention by the 5th and 9th respondents that the delay was occasioned by difficulties in accessing the Court’s online platform.
[29] Be that as it may, to accede to the respondents’ prayer to deem the responses and/or submissions filed out of time as properly before the Court is tantamount to sanctioning an illegality. The respondents ought to have first sought leave of the Court to file their responses out of time prior to filing the same. See Nicholas Kiptoo Arap Korir Salat v. Independent Electoral and Boundaries Commission & 7 Others, SC Applic. No 16 of 2014; [2014] eKLR and University of Eldoret & another v. Hosea Sitienei & 3 Others, SC Applic. No. 8 of 2020; [2020] eKLR…” (emphasis added)
The Ex-Parte Applicants have not been able to put in their rebuttal submissions for this reason and humbly urge this honourable court to be persuaded by the decision in:
BOD County Referral Hospital Kitale & another v DN (Suing through her next friend & Grandmother SK) (Civil Appeal E043 of 2023) [2025] KEHC 5344 (KLR) (30 April 2025) where it was held:
“…27.The electronic mail extract referred to in paragraph above was a copy of the email that attached the hearing notice sent by Vivian xxxx.com to xxxx.com. The email requested the recipient to acknowledge receipt thereof. The affidavit, however, contains no further evidence on whether there was confirmation of receipt of the email.
28.Returning to Order 5 Rule 22B [4] of the Civil Procedure Rules, an Affidavit of Service is supposed to attach an Electronic Mail Service delivery receipt as the confirmation of service. What then is an email delivery receipt? Simply put, an email delivery receipt is a notification confirming that an email message was delivered to the recipient's mailbox. It must, however, be understood that an email delivery receipt is different from an email read receipt. The latter is a notification confirming that the email message was opened and/or read by the recipient.
29.In this case, the law calls for only an email delivery receipt. As such, as far as there is evidence that the email was delivered to the recipient’s mailbox, service thereof is confirmed. How then does a sender of an email get a delivery receipt? For one to receive a delivery or read receipt in respect of an email sent to a recipient, the sender must activate the appropriate settings in the email set up. Once the settings are in place, a delivered and/or read receipt, as the case may be, will automatically be received by the sender once the email is delivered and/or read. It is that delivery receipt which the law calls upon a sender to annex to an affidavit of service as evidence of service through electronic mail.
30.The Respondent’s Counsel
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