REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW DIVISION
JR. MISC. CAUSE NO. E040 OF 2024
REPUBLIC ……………………..………………………..…….…..APPLICANT
-VERSUS-
PUBLIC PROCUREMENT ADMINISTRATIVE
REVIEW BOARD...............................................1STRESPONDENT
THE ACCOUNTING OFFICER
KENYA POWER AND LIGHTING
COMPANY PLC ..............................................2ND RESPONDENT
AND
RGIS KENYA LTD……………………………….EX PARTE APPLICANT
JUDGMENT
1. The Applicant that is before this court for determination is the Notice of Motion dated 29th February 2024 wherein the Applicant is seeking the following:
a) An order of Certiorari to bring into this Honourable Court for purposes of being quashed the decision of the Public Procurement Administrative Review Board (the 1stRespondent) in Review Application No. 6 of 2024 in regard to the 2nd Respondent’s Tender No. KP1/9A.2/OT/030/PJT/23-24 for Provision of Labour & Transport Construction Services (hereinafter referred to as “the subject tender”).
b) An order of declaration be and is hereby issued that the tender opening process as conducted by the 2nd Respondent on 15/01/2024 and as captured in the decision of the 1stRespondent dated 16/2/2024 was in breach of the mandatory provisions of Section 78 of the Public Procurement and Asset Disposal Act, 2015 as well as regulations 57 of the Public Procurement and Asset Disposal Regulations, 2020.
c) An order of certiorari be and is hereby issued quashing tender no. No. KP1/9A.2/OT/030/PJT/23-24 for Provision of Labour & Transport Construction Services and directing the 2nd Respondent to re-tender in strict compliance with the law.
d) In the alternative to prayers (b) and (c), above, that an Order of mandamus do issue directing the 1st Respondent to re-hear and determine the Applicant’s Application dated 26/01/2024 as to whether the subject tender was opened in accordance with the law on the merits within such limited period as this court shall determine.
e) Costs of and incidental to this application be provided for.
f) Such further and other relief that the Honourable Court may deem just and expedient to grant.
2. The Application is predicated on the Statutory Statement and the Verifying Affidavit of Duncan Ndegwa Kiragu.
Applicant’s Case;
3. It is the Applicants case that on 25/10/2023, the 2nd Respondent invited sealed bids from interested eligible bidders via Tender No. KP1/9A.2/OT/030/PJT/23-24 (hereinafter referred to as the “subject tender”) by publishing an e-advertisement on its website. The said tender was amended several times through various addenda.
4. THAT the Applicant submitted its bid recorded as No. 375 as per the list of bidders who successfully submitted their bids.
5. THAT upon review of the subject tender, the Power Transmission Line Contractors Association noted that the framing of the tender would, unfortunately, curtail the participation of majority of the contractors bidding for Feeder Based Business Unit (FBBU) works as the same lacked equity in its resource distribution, was discriminatory against FFBU contractors and lacked transparency in the future allocation of works between FBBU contractors and Central Office Contractors.
6. The said Association, on the advice of its counsel on record, noted that the subject tender lacked the requisite affirmative action component mandated by law. This omission pertained specifically to the absence of provisions for the inclusion of women, youth, individuals with disabilities, and other marginalized groups, notwithstanding the presence of duly qualified contractors within these categories. Consequently, the 2nd Respondent’s failure to incorporate such reservations for contractors belonging to the aforementioned groups has the potential to impede the equitable distribution of resources across the country.
7. In view of the foregoing, the Power Transmission Line Contractors Association, as a representative of the collective voice of contractors made a formal request to the Procuring Entity to objectively relook into the tender provisions in a letter dated 2/11/2023 presented at the pre-bid meeting.
8. The 2nd Respondent declined to hear out the association terming it a non-entity in the tender process. Individual contractors took it upon themselves to raise the same issues with the 2nd Respondent. Despite raising these concerns, the procuring entity only partly and cosmetically resolved the same through an addendum dated 14/11/2023. No subsequent communication was issued by the 2ndRespondent concerning the primary concerns raised specifically those that touched on work, resource and financial allocation.
9. It is their case that given the imminent injustice and the failure of the 2nd Respondent to address the predominant issues affecting the tender’s framework, the Power Transmission Line Contractors Association filed Nairobi High Court Petition No. E007 of 2024 on 8/01/2024.
10. The primary relief sought in this petition is for the Constitutional and Human Rights Division Court to annul the subject tender in its entirety and to direct the 2nd Respondent to re-frame and re-tender the same in adherence to the law.
11. The subject tender, was officially closed on 15/01/2024 and was subsequently opened in an opening meeting on the same day at 11.30 a.m.
12. The Respondent filed, a notice of preliminary objection challenging the court’s jurisdiction to hear and determine the case and a replying affidavit indicating that the tender had already been opened on 15.01.2024 and was at the time at the evaluation stage.
13. It is its case that tender opening list and information form states that the meeting begun at 11:30am and that the tender was opened at Stima Plaza Auditorium, Ngara. However, the attendance list, which was signed by the attendees and the opening minutes, indicate that the opening venue of the tender was at the Institute of Energy Studies and Research off Thika Road, Ruaraka, Nairobi which means the Tender E-box was opened at Stima Plaza Auditorium at Ngara prior to being opened in the presence of attending bidders at the Institute if Energy Studied and Research at Ruaraka.
14. Further to the above, the members of the tender opening committee printed out a list of bidders who successfully submitted their bids and read out their names only as opposed to opening each and every tender.
15. This list was generated from the e-procurement portal. The reading of names ought to have been as a result of the opening of the tenders submitted by the bidders and the following information as mandatorily required by law was not read out:
a) Whether the contractor read out were bidding as Regional/Central Office Contractors or Feeder Based Business Units (FBBU) contractor.
b) Which category of works they were bidding for. Each contractor was bidding for either new connections or maintenance works in the respective regions or FBBUs.
c) Their choice of work cluster. A bidder had a choice of either Central Office/Regional cluster (allowed to choose a maximum of two (2) regions within one category of works) or FBBU cluster (allowed to choose a maximum of three (3) FBBUs, within a region and within the same category of works).
d) The price bid/sum of quoted unitary rates for each region(s) chosen (for regional/central office contractors) or for each FBBU(s) chosen for FBBU contractors.
16. It is their case that by failing to record and maintain this information, the 2nd Respondent failed to keep the tender opening register contemplated by the Act.
17. The tender opening committee only generated a list of bidders as opposed to opening each and every tender and reading out the information leaving room for manipulation of records and corruption at the evaluation and award stage.
18. The 2nd Respondent’s tender opening committee members failed to sign against all price bids/ sum of quoted unitary rates contrary to the law and to ensure that the electronic tender box was accessible only through three passwords that are simultaneously time activated and each issued to different officers who are members of the tender opening committee as borne in the tender opening meeting minutes that were filed by the 2nd Respondent herein in Milimani HC Petition No. E.007 of 2024.
19. This compelled the Applicant to file a Request for Review dated 26/01/2024, contesting the legality of the tender opening process.
20. The decision was rendered on 16/02/2024 wherein the 1st Respondent, in its rationale, made the following observations:
a) That the Request for Review dated 26/01/2024 challenged the tender process in respect of the subject tender.
b) That the Constitutional Petition challenged the tender process as well.
c) That both the Request for Review and the Constitutional Petition prayed for the cancellation of the tender and for the same to be retendered.
21. The 1st Respondent, in its reasoning, noted that the parties involved in both the Constitutional Petition and the Request for Review were the same. It further observed that both sets of pleadings sought the annulment of the present subject tender.
22. In its conclusion, the Respondent asserted that it lacked jurisdiction to adjudicate the raised issues, as it deemed them to potentially contravene the legal doctrine of sub judice.
23. The Applicant submits that the 1st Respondent’s decision dated 16/02/2024 was materially influenced by an error of law in that the Respondent misconstrued, misinterpreted, and misapplied the legal doctrine of sub judice in dismissing the request for review;
24. The term ‘sub-judice’ is defined in Black’s Law Dictionary 9th Edition as: “Before the Court or Judge for determination.” It denotes that a matter is being considered by a court or judge.
25. The question that the 1st Respondent, properly directing its mind in the request for review, should have asked is, “is the issue of the failure to comply with the law on tender opening being considered by the High Court in Petition E007 of 2024?”
26. The Applicant submits that there are three essential conditions for bringing in the operation of the doctrine of res sub judice. These are as follows: -
“(1) The matter in issue in the subsequent suit is directly and substantially in issue in the previously instituted suit, (2) The parties in the both suits are the same, either directly or indirectly and, (3) The court in which the first suit is instituted, is a court of having jurisdiction or competent to grant the relief claimed in the subsequently instituted suit.”
27. It submits that The parties in the two cases are different. The Ex Parte Applicant brought the Request in its capacity as a tenderer. The Petition before the High Court was filed by the Power Transmission Line Contractors Association and while the Ex-Parte Applicant is a member of the Association, the 1st Respondent went to great lengths to arrive at the unsubstantiated position that the Petition was being litigated on behalf of the Ex-Parte Applicant, though not a party in the Petition. The ex-parte applicant is a legally separate and distinct entity from its director, the deponent of the Affidavit in support of the Petition.
28. The issues in the two cases are different. At paragraph 58, the 1st Respondent alleged to have considered the issues raised and observed that the two cases challenged the tender process in respect of tender no. KP1/9A.2/OT/030/PJT/23-24 for provision of Labour and Transport Construction Services. Nothing could be further from the truth. It is clear that the 1st Respondent misunderstood the issues. While the two cases relate to the same tender as the subject matter- the issue before the High Court is the framing of the tender in breach of Constitutional provisions while the issue in the Request for review at the Review Board was failure to adhere to the law on the tender opening process.
29. It is the Applicants case that consequently, even though both cases sought similar reliefs, there is no risk of contradictory orders. The High Court would grant or fail to grant the orders sought depending on its finding on whether or not the tender was framed in accordance with the Constitutional dictates. On the other hand, a grant of the orders sought in the request for review would be based on the board’s finding on whether there was or there wasn’t compliance with the law and regulations on tender opening.
30. Reliance is placed in the case of Republic v Paul Kihara Kariuki, Attorney General & 2 others Ex parte Law Society of Kenya [2020] eKLR stated as follows:
“The uncompromising manner in which courts have consistently enforced the sub judice rule was best explained in Thiba MinHydro Co. Ltd v Josphat Karu Ndwiga,[13]which held that it is not the form in which the suit is framed that determines whether it is sub judice, rather it is the substance of the suit(emphasis ours). The court went further and stated that In determining whether or not sub judice applies, it is the substance of the claim that ought to be looked at rather than the prayers sought.”
31. On the third condition, does the High court, as the Court in which the first suit is instituted, have jurisdiction over a challenge to a breach of duty imposed on a procuring entity at any stage in procurement proceedings such as the breach of the law and regulations with regard to tender opening?
32. The Applicant relies on Section 167 of the Public Procurement and Asset Disposals Act vests jurisdiction on the 1st Respondent to undertake administrative review of matters relating to breach of duty imposed on a procuring entity by the Act or regulations, in the first instance. Access to the High Court, at the first instance, has been interpreted by the courts as an alternative forum for persons who are not “a candidate or a tenderer” as to avail themselves of the right to review under section 167.
33. Reliance is placed in in Law Society of Kenya & another v Kenya Ports Authority & another [2022] eKLR, the Hon. Justice J. A Makau faced with a similar situation held as follows:
“The Petitioners herein therefore cannot be subject to the bodies cited by the 1st respondent as was held in Republic vs Independent Electoral and Boundaries Commission & another Ex parte Coalition for Reform and Democracy & 2 others [2017] eKLR and Okiya Omtatah v Central Bank of Kenya & 7 Others [2018] eKLR.
I further note that by dint of Section 174 of the PPAD Act, persons such as the Petitioners herein aggrieved by the decision of the 1st Respondent but who cannot subject themselves to the PPARB can seek alternative remedy under the provisions of the law as was held in Elias Mwangi Mugwe vs Public Procurement Administrative Review Board & 5 others [2016] eKLR. Lastly, by virtue of Article 165 (3) (b) and (d) (ii) of the Constitution, this Court has the jurisdiction to handle this matter.”
34. It is its case that the 1st Respondent failed to consider the following relevant matters:
a) The Constitutional Petition challenges the framework of the subject tender while the Request for Review challenges the tender opening process. In any event the tender opening process happened after the filing of the Petition and was not a matter before the High Court.
b) Despite the similarity in the prayers sought, the impact of their respective grantings at the High Court and the Board would diverge due to disparities in the raised issues. If the Board had acceded to the Applicant's prayers, the 2nd Respondent would have been compelled to initiate a fresh tender process and conduct the tender opening in strict compliance with legal requirements. Conversely, if the High Court were to grant the Petitioner's prayers, the Procuring Entity would not only be mandated to reissue the tender but also to revise the existing framework to ensure strict adherence to Constitutional and legal mandates. There would be no risk, whatsoever, of contradictory orders emanating from the two cases as the issues are totally different.
c) It is not true that the parties in the two cases are the same, as alleged. RGIS Kenya Ltd is a distinct and separate legal entity from its directors and shareholders. The Applicant, in filing its request for review was exercising its rights as a bidder pursuant to the law. The Power Transmission Line Contractors Association represents a majority of the contractors engaged by the 2nd Respondent and cannot be said to be solely in court for the Applicant herein.
d) During the hearing, the 2nd Respondent acknowledged that, during the tender opening process, it solely opened the tender box and identified the tenderers. The 2nd Respondent did not open each and every tender as required by law for purposes of recording pertinent information relevant for purposes of ensuring a transparent and competitive process. This admission constitutes a direct acknowledgment of the 2nd Respondent's non-compliance with legal provisions governing the tender opening procedure. This admission was captured in paragraph 33 of the 1st Respondent's decision dated 16/02/2024.
e) Notwithstanding this admission and the 2nd Respondent's omission to file its intended Preliminary Objection, the 1st Respondent neglected to address the substantive issues raised and instead resolved the Applicant’s Request for Review based on a preliminary issue that was not formally raised by the 2nd Respondent.
35. The Applicant submission that the orders sought should be granted.
36. It is the Applicants case that is application is brought under Article 22 and 47 of the Constitution of Kenya, 2010 and the Fair Administrative Actions Act and order 53 of the Civil Procedure Rules, 2010.
37. This Honourable Court under Article 23 (3) (f) of the Constitution of Kenya, 2010 has power to grant the Judicial review orders of certiorari to quash the decision of the 1st Respondent as well as the 2nd Respondent’s tender for non-compliance with the law. It also provides for an order of mandamus to compel the 2nd Respondent to re-start the process in full compliance with the law.
38. It is on the basis of these provisions, granted the admission of non-compliance with duty imposed by law that we urge this Honourable court to quash the decision of the 1st Respondent and the 2nd Respondent’s tender for being bad in law for failing to comply with the law and regulations on tender opening.
39. The Applicant submits that in the alternative, Section 11 of the Act sets out the orders in proceedings for judicial review to include-
a) declaring the rights of the parties in respect to any matter to which the administrative action relates
b) Setting aside the administrative action or decision and remitting the matter for reconsideration by the administrator, with or without directions
c) compelling the performance by an administrator of a public duty owed in law and in respect of which the applicant has a legally enforceable right;
d) for the award of costs or other pecuniary compensation in appropriate cases.
40. In the case of Republic Vs. Public Procurement Administrative Review Board & 3 others Ex-parte Techno Relief Services Limited [2021] eKLR, the court dealt with a challenge to a decision of the Public Procurement Administrative Review Board where the PPARB had struck out an Application for Review of the Tender Number GF ATM HIV NFM-20/21-01T-011 for supply of nutritional supplements floated by the Kenya Medical Supplies Authority.
41. The court addressed the peculiar nature of judicial review post the 2010 constitution, i.e. introduction of Article 47 that provides a right to fair administrative action. The court held that;
“it is evident from these provisions that this Court has jurisdiction to review the decisions of subordinate courts and quasi-judicial bodies, of which the 1st Respondent is one. It is also inaccurate and one-dimensional to classify this Court’s review jurisdiction as being limited to the decision-making process of an administrative body or subordinate court, as it is evident that the Court can also review the merits of a decision in judicial review. The applicable restraints in the exercise of its judicial review jurisdiction are that the Court must be careful not to usurp and interfere with the matters entrusted to an administrative body or subordinate court to decide in the first instance, as its jurisdiction is supervisory. In addition, the Court cannot substitute its decision or preferred outcome with that of the said bodies or courts, hence the restrictions on the extent of merit review that can be undertaken in judicial review.” [Emphasis ours]
42. It is, therefore, clear that this Honourable Court can conduct a merit review in Judicial Review in addition to a process review. The remedies that the court can issue while sitting in a judicial review are as provided in Section 11 of the Fair Administrative Action Act, which reliefs might include “setting aside the administrative action or decision and remitting the matter for reconsideration by the administrator, with or without directions”
43. In the case at Techno Relief Services Limited case [Supra], the court, gave an order directing the 1stRespondent to rehear PPARB Case Number 34 of 2021 and to consider substantively the pleadings filed, within 30 days after the judgement had been rendered. Further the court issued orders that barred the entering of any contract with respect to the subject tender until the re-hearing and the determination of the application for review.
44. The power of the court to remit a matter back to an administrator while sitting in judicial review was buttressed in another case of Republic Vs. Data Protection Commissioner & 2 others ex parte Allen Waiyaki Gichuhi & 2 others: Judicial Review case no. e028 of 2023, the court remitted a matter back for reconsideration by the Data Protection Commissioner after the DPC had rendered a decision outside of its statutory time limited jurisdiction. The court set aside this determination and remitted back the matter to the ODPC for consideration within the set timelines. The court further, as provided for by the Fair Administrative Action Act, directed that the investigation be done and concluded within 30 days.
1st Respondents Case;
45. The Attorney-General, on behalf of the 1st Respondent in opposition filed a replying affidavit sworn by James Kilaka on 8th March 2024.
46. According to him, the Ex-parte applicant’s motion is essentially a review of the merits of the decision of the Respondent.
47. The Applicant has approached this court on grounds that the 1st Respondent’s decision violated the Applicant’s legitimate expectation, error of law, failure to consider relevant considerations, the Board abused its powers.
48. In the Ugandan case of Pastoli vs. Kabale District Local Government Council and Others [2008] 2 EA 300 In which the Court citing Council of Civil Unions vs. Minister for the Civil Service [1985] AC 2 and An Application by BukobaGymkhana Club [1963] EA 478 at 479 held that:
“In order to succeed in an application for judicial review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety...Illegality is when the decision-making authority commits an error of law in the process of taking or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality...Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards...Procedural Impropriety is when there is a failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision.”
49. According to 1st Respondent, the Applicant is asking this court to review the merits of the decision and asking this court to substitute the decision the Respondent arrived at procedurally with that of this Honorable Court.
50. Reliance is placed in the Municipal Council of Mombasa vs. Republic & Umoja Consultants Ltd [2002] eKLR where it was follows:
“Judicial review is concerned with the decision making process, not with the merits of the decision itself: the Court would concern itself with such issues as to whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters…The court should not act as a Court of Appeal over the decider which would involve going into the merits of the decision itself-such as whether there was or there was not sufficient evidence to support the decision.”
51. The 1st Respondent argues that it discharged its functions properly and made a determination of the issues in Request for Review No.6 of 2024 in the manner required by the Public Procurement and Asset Disposal Act, 2015 and guided by the principles enshrined under Articles 10 and 227 the Constitution of Kenya.
52. Under Section 173 of the Public Procurement and Asset Disposal Act the Respondent can:
“(a) annul anything the accounting officer of a procuring entity has done in the procurement proceedings, including annulling the procurement or disposal proceedings in their entirety; (b) give directions to the accounting officer of a procuring entity with respect to anything to be done or redone in the procurement or disposal proceedings; (c) substitute the decision of the Review Board for any decision of the accounting officer of a procuring entity in the procurement or disposal proceedings; (d) order the payment of costs as between parties to the review in accordance with the scale as prescribed; and (e) order termination of the procurement process and commencement of a new procurement process.”
53. It is its case that the applicants' assertion of legitimate expectation cannot withstand legal scrutiny in the present matter. As elucidated in the case of Invollate Wacike Siboe v Kenya Railways Corporation & another [2017] eKLR, legitimate expectation finds its foundation in representations made by an administrative authority, either expressly or impliedly, or through consistent past practice. However, it is imperative to note that legitimate expectation is circumscribed by the boundaries of legality. The doctrine does not bestow protection upon expectations that contravene statutory provisions.
54. In the instant case, the court is confronted with the unequivocal legal question around the provision of Section 6 of the Civil Procedure Act, which provides for a stay of proceedings where the matter at hand is directly and substantially in issue in a previously instituted suit or proceeding between the same parties.
55. It is its case that any purported legitimate expectation must align with the parameters set forth by statute to merit judicial consideration. Halsbury's Laws of England, defines “legitimate expectation arises when a decision maker, within their competent authority, engenders a genuine expectation through representation. However, it is axiomatic that such expectation cannot arise if its fulfillment entails a violation of statutory provisions.”
56. The applicants' invocation of legitimate expectation stands in direct contravention of Section 6 of the Civil Procedure Act, which prohibits the court from proceeding with the trial where the subject matter is concurrently pending in another court.
57. To entertain the applicants' plea on the basis of legitimate expectation would amount to sanctioning an ultra vires exercise of judicial authority, thereby undermining the integrity of statutory provisions.
58. Reliance is also placed in the case of Republic Vs National Employment Authority & 3 Others Ex-Parte Middle East Consultancy Services Ltd (2018) eKLR, the Court pronounced itself as follows: -
“This case presents an opportunity to this court to restate the function, scope and nature of Judicial Review remedies and the test for granting such remedies. In Judicial Review, the reviewing court cannot set aside a decision merely because it believes that the decision was wrong on merits. A court of review is concerned only with the lawfulness of the process by which the decision was arrived at, and can set it aside only if that process is flawed in certain defined and limited respects. The role of the court in Judicial Review is supervisory. It is not an appeal and should not attempt to adopt the “forbidden appellate approach.”
59. Judicial Review is about the decision making process, not the decision itself. The role of the court in Judicial Review is supervisory. Judicial Review is the review by a Judge of the High Court of a decision, proposed decision, or refusal to exercise a power of decision to determine whether that decision or action is unauthorized or invalid. It is referred to as supervisory jurisdiction-reflecting the role of courts to supervise the exercise of power by those who hold it to ensure that it has been lawfully exercised.
The 2nd Respondents Case:
60. According to the 2nd Respondent the ex-parte Applicant seeks to appeal the decision of the Public Procurement Administrative Review Board dated 16.02.2024.
61. Reliance is placed in the case of Municipal Council of Mombasa vs. Republic & Umoja Consultants Ltd Civil Appeal No. 185 of 2001, the Court held the following:
“Judicial review is concerned with the decision making process, not with the merits of the decision itself…”
62. The ex-parte Applicant was granted a right to a fair hearing as envisioned in Article 50 of the Constitution of Kenya which was also transparent.
63. It is their case that The ex-parte must illustrate the actual sins committed by the 1st Respondent to enable this Honourable Court grant the remedies sought within the principles as enunciated in the case Pastoli vs. Kabale District Local Government Council and Others [2008] 2 EA 300 the Court held:
“In order to succeed in an application for judicial review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety …
64. A decision made by a quasi-judicial body or an administrative decision can only be challenged on grounds of illegality, irrationality and procedural impropriety.
65. The 1st Respondent’s decision dated 16.02.2024 has not been shown to be illegal or ultra vires and outside the functions of the 1st Respondent nor has it been shown to be irrational or procedurally wrong.
66. In determining what an order of mandamus is, reliance is placed in the case of Republic vs. Kenya National Examinations Council ex parte Gathenji & Others Civil Appeal No. 266 of 1996, and the case of Shah vs. Attorney General (No. 3) Kampala HCMC No. 31 of 1969 [1970] EA 543, the Court stated the following;
“Mandamus is essentially English in its origin and development and it is therefore logical that the court should look for an English definition. Mandamus is a prerogative order issued in certain cases to compel the performance of a duty. It issues from the Queen’s Bench Division of the English High Court where the injured party has a right to have anything done, and has no other specific means of compelling its performance, especially when the obligation arises out of the official status of the respondent. Thus it is used to compel public officers to perform duties imposed upon them by common law or by statute and is also applicable in certain cases when a duty is imposed by Act of Parliament for the benefit of an individual. Mandamus is neither a writ of course nor of right, but it will be granted if the duty is in the nature of a public duty and especially affects the rights of an individual, provided there is no more appropriate remedy. The person or authority to whom it is issued must be either under a statutory or legal duty to do or not to do something; the duty itself being of an imperative nature… In cases where there is a duty of a public or quasi-public nature, or a duty imposed by statute, in the fulfilment of which some other person has an interest the court has jurisdiction to grant mandamus to compel the fulfilment.”
67. The remedies of certiorari are tools that the court uses to supervise public bodies and inferior tribunals to ensure that they do not make decisions or undertake activities which are ultra vires their statutory mandate or which are irrational or otherwise illegal. They are meant to keep public authorities in check to prevent them from abusing their statutory powers or subjecting citizens to unfair treatment.
68. The grant of the orders or certiorari and mandamus is discretionary. The ex-parte applicant has failed to justify the orders being sought.
69. To support its case, the 2nd Respondent also to relies on the following cases;
a) Republic v Public Procurement Administrative Review Board;Shenzhen Instrument Co. Limited & another (Interested Party) Ex parte Kenya Power and Lighting Company Limited [2019] eKLR
b) Republic v Ethics and Anti-Corruption Commission; Patria Properties Limited & another (Ex-parte) (Judicial Review Miscellaneous Application E002 of 2021) [2022] KEELC 14803 (KLR) (11 November 2022) (Ruling)
c) Republic v Public Procurement Administrative Review Board & another Ex-parte Intertek International Limited [2013] eKLR
Analysis and Determination
The issue that arises for determination is whether the Applicant is entitled to the orders sought.
70. In the Ugandan case of Pastoli vs Kabale District Local Government Council & Others, (2008) 2 EA 300, that:
“In order to succeed in an application for Judicial Review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety: See Council of Civil Service Union v Minister for the Civil Service [1985] AC 2; and also Francis Bahikirwe Muntu andothers v Kyambogo University, High Court, Kampala, Miscellaneous Application Number 643 of 2005 (UR).
Illegality is when the decision making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without Jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality….
Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards: Re an Application by Bukoba Gymkhana Club [1963] EA 478 at page 479 paragraph “E”.
Procedural impropriety is when there is failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision. (Al-Mehdawi v Secretary of State for the Home Department [1990] AC 876).”
71. It is clear that the Applicant is aggrieved, unsatisfied and very categorical that the 1st Respondent failed to consider the following relevant matters:
“The Constitutional Petition challenges the framework of the subject tender while the Request for Review challenges the tender opening process. In any event the tender opening process happened after the filing of the Petition and was not a matter before the High Court.
Despite the similarity in the prayers sought, the impact of their respective grantings at the High Court and the Board would diverge due to disparities in the raised issues. If the Board had acceded to the Applicant's prayers, the 2nd Respondent would have been compelled to initiate a fresh tender process and conduct the tender opening in strict compliance with legal requirements. Conversely, if the High Court were to grant the Petitioner's prayers, the Procuring Entity would not only be mandated to reissue the tender but also to revise the existing framework to ensure strict adherence to Constitutional and legal mandates. There would be no risk, whatsoever, of contradictory orders emanating from the two cases as the issues are totally different.
It is not true that the parties in the two cases are the same, as alleged. RGIS Kenya Ltd is a distinct and separate legal entity from its directors and shareholders. The Applicant, in filing its request for review was exercising its rights as a bidder pursuant to the law. The Power Transmission Line Contractors Association represents a majority of the contractors engaged by the 2nd Respondent and cannot be said to be solely in court for the Applicant herein.
During the hearing, the 2nd Respondent acknowledged that, during the tender opening process, it solely opened the tender box and identified the tenderers. The 2nd Respondent did not open each and every tender as required by law for purposes of recording pertinent information relevant for purposes of ensuring a transparent and competitive process. This admission constitutes a direct acknowledgment of the 2nd Respondent's non-compliance with legal provisions governing the tender opening procedure. This admission was captured in paragraph 33 of the 1st Respondent's decision dated 16/02/2024.
The 1st Respondent neglected to address the substantive issues raised and instead resolved the Applicant’s Request for Review based on a preliminary issue that was not formally raised by the 2nd Respondent.”
72. In the case of Republic vs National Employment Authority & 3 Others Ex-Parte Middle East Consultancy Services Ltd (2018) eKLR, the Court pronounced itself as follows: -
“This case presents an opportunity to this court to restate the function, scope and nature of Judicial Review remedies and the test for granting such remedies. In Judicial Review, the reviewing court cannot set aside a decision merely because it believes that the decision was wrong on merits. A court of review is concerned only with the lawfulness of the process by which the decision was arrived at, and can set it aside only if that process is flawed in certain defined and limited respects. The role of the court in Judicial Review is supervisory. It is not an appeal and should not attempt to adopt the “forbidden appellate approach.”
Judicial Review is about the decision making process, not the decision itself. The role of the court in Judicial Review is supervisory. Judicial Review is the review by a Judge of the High Court of a decision, proposed decision, or refusal to exercise a power of decision to determine whether that decision or action is unauthorized or invalid. It is referred to as supervisory jurisdiction-reflecting the role of courts to supervise the exercise of power by those who hold it to ensure that it has been lawfully exercised.
73. The court of Appeal in Kenya Pipeline Ltd vs. Hyosung Ebara Company Ltd [2012] eKLR; held that:
“The Review Board is a specialized statutory tribunal established to deal with all complains of breach of duty by the procuring entity. By Reg. 89, it has power to engage an expert to assist in the proceedings in which it feels that it lacks the necessary experience. S. 98 of the Act confers very wide powers on the Review Board. It is clear from the nature of powers given to the Review Board including annulling, anything done by the procurement entity and substituting its decision for that of the procuring entity that the administrative review envisaged by the Act is indeed an appeal. From its nature the Review Board is obviously better equipped than the High Court to handle disputes relating to breach of duty by procurement entity. It follows that its decision in matters within its jurisdiction should not be lightly interfered with.”
74. It is my finding and I so hold that in the instant suit, this court is concerned only with the lawfulness of the process by which the decision was arrived at. This court can set it aside the impugned decision only if that process is flawed in certain defined and limited respects. The role of this court in Judicial Review jurisdiction is supervisory. It is not an appeal and should not attempt to adopt the “forbidden appellate approach. “The Applicant has failed to persuade the court that it has reasons that would justify the setting aside of the impugned decision.
75. This leaves the court with the question of whether the suit is subjudice. Section 6 of the Civil Procedure act Cap 21 defines Sub-judice in the following terms;
“No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.”
76. It is not in dispute from the submissions of the parties herein that there is in existence Milimani HC Petition No. E.007 of 2024.It is further not in dispute that The Applicant filed a Request for Review dated 26/01/2024.Both the Request for Review and the Petition prayed for the cancellation of the tender and for the same to be retendered.
77. On 8/02 /2024, the Applicant’s application was heard and a decision rendered and supplied to all parties on 16/02/2024 wherein the 1st Respondent, in its rationale, made the following observations:
a) That the Request for Review dated 26/01/2024 challenged the tender process in respect of the subject tender.
b) That the Constitutional Petition challenged the tender process as well.
c) That both the Request for Review and the Constitutional Petition prayed for the cancellation of the tender and for the same to be retendered.
78. The applicant admitted that Despite the similarity in the prayers sought, the impact of their respective outcomes at the High Court and the Board would diverge due to disparities in the raised issues.
79. In its decision, the 1st Respondent, in its reasoning, noted that the parties involved in both the Constitutional Petition and the Request for Review were the same.
80. The applicant is concerned that the 1st Respondent failed to consider the following relevant matters The Constitutional Petition challenges the framework of the subject tender while the Request for Review challenges the tender opening process. In any event the tender opening process happened after the filing of the Petition and was not a matter before the High Court.
81. In Republic vs. Public Procurement Administrative Review Board & Another Ex Parte Selex Sistemi Integrati Nairobi HCMA No. 1260 of 2007 [2008] KLR 728 where the court held as follows:
“From the foregoing it is clear that the 1st Respondent considered all the issues raised by the applicants before proceeding to dismiss their request for review. In my view the applicants are asking me to look at the 1st Respondents said decision and reach a conclusion that the 1st Respondent erred both in fact and in law when it reached that decision. The question would then be whether this court acting as a judicial review court has powers to interfere with the decision…This court is being asked to determine whether the 1st respondent misapprehended the law as relates to the technical evaluation and award of scores thereunder. In my view, such an enquiry would amount to sitting on appeal over the decision of the 1st respondent. Indeed, Parliament was alive to the distinction between judicial review and appeal in procurement proceedings when it provided in Section 100 of the Act that: -
(1) A decision made by the Review Board shall, be final and binding on the parties unless judicial review thereof commences within fourteen days from the date of the Review Board’s decision.
(2) Any party to the review aggrieved by the decision of the Review Board may appeal to the High Court, and the decision of the High Court shall be final.
82. In Republic v Public Procurement Administrative Review Board Exparte Giant Forex Bureau De’ Change Limited & 2 others [2017] eKLR the Court opined that:
“That misapprehension, or error of law or fact, however, is not an issue within the judicial review purview of this court. This proposition was upheld by the Court of Appeal in the cited KENYA PIPELINE COMPANY LIMITED (supra) case in the following words: - In conclusion, it is manifest that the application for Judicial Review was not well founded. The 1st Respondent did not establish that the Review Board had acted without jurisdiction or in excess of jurisdiction or in breach of rules of natural justice or that the decision was irrational. The Judicial Review was not confined to the decision making process but rather with the correctness of the decision on matters of both law and fact. So long as the proceedings of the Review Board were regular and it had jurisdiction to adjudicate upon the matters raised in the Request for Review, it was as much entitled to decide those matters wrongly as it was to decide them rightly.
The High Court erred in essence in treating the judicial review application as an appeal and in granting judicial review orders on the grounds which were outside the scope of Judicial Review jurisdiction.”
83. The Court of Appeal in Civil Appeal No. 83 of 2017 Joel Kenduiywo vs District Criminal Investigation Officer Nandi & 4 Others (2019) eKLR the court held as follows: -
“Section 6 of the Civil Procedure Act is meant to prevent abuse of the court of process where parallel proceedings are held before two different courts with concurrent jurisdictions or before the same court at different times. This is to obviate a situation where two courts of concurrent jurisdiction arrive at different decisions on the same facts, evidence and cause of action.”
84. The 1st Respondent, in its reasoning, noted that the parties involved in both the Constitutional Petition and the Request for Review were the same. It further observed that both sets of pleadings sought the annulment of the present subject tender.
85. In its conclusion, the Respondent asserted that it lacked jurisdiction to adjudicate the raised issues, as it deemed them to potentially contravene the legal doctrine of sub judice.
86. It is my finding that this court cannot conduct a merit or a substantive merit analysis of the foregoing. To do so would go against the principles of Judicial review. It is my finding that the proceedings of the Review Board were regular and the 1st Respondent had jurisdiction to adjudicate upon the matters raised in the Request for Review, it was as much entitled to decide those matters wrongly as it was to decide them rightly in arriving at the impugned decision.
87. The applicant should have lodged an appeal to challenge the finding of the 1st Respondent and not a judicial review application.
Disposition:
88. The application does not fulfill the principles for the grant of the orders sought as enunciated in the case of Pastoli vs. Kabale District Local Government Council and Others [2008] 2 EA 300.
Order:
The application dated 29th February 2024 is dismissed with costs.
Dated, signed and delivered at Nairobi this 11th Day of April 2024.
……………………………
J. CHIGITI (SC)
JUDGE
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW DIVISION
JR. MISC. CAUSE NO. E040 OF 2024
REPUBLIC ……………………..………………………..…….…..APPLICANT
-VERSUS-
PUBLIC PROCUREMENT ADMINISTRATIVE
REVIEW BOARD...............................................1STRESPONDENT
THE ACCOUNTING OFFICER
KENYA POWER AND LIGHTING
COMPANY PLC ..............................................2ND RESPONDENT
AND
RGIS KENYA LTD……………………………….EX PARTE APPLICANT
JUDGMENT
1. The Applicant that is before this court for determination is the Notice of Motion dated 29th February 2024 wherein the Applicant is seeking the following:
a) An order of Certiorari to bring into this Honourable Court for purposes of being quashed the decision of the Public Procurement Administrative Review Board (the 1stRespondent) in Review Application No. 6 of 2024 in regard to the 2nd Respondent’s Tender No. KP1/9A.2/OT/030/PJT/23-24 for Provision of Labour & Transport Construction Services (hereinafter referred to as “the subject tender”).
b) An order of declaration be and is hereby issued that the tender opening process as conducted by the 2nd Respondent on 15/01/2024 and as captured in the decision of the 1stRespondent dated 16/2/2024 was in breach of the mandatory provisions of Section 78 of the Public Procurement and Asset Disposal Act, 2015 as well as regulations 57 of the Public Procurement and Asset Disposal Regulations, 2020.
c) An order of certiorari be and is hereby issued quashing tender no. No. KP1/9A.2/OT/030/PJT/23-24 for Provision of Labour & Transport Construction Services and directing the 2nd Respondent to re-tender in strict compliance with the law.
d) In the alternative to prayers (b) and (c), above, that an Order of mandamus do issue directing the 1st Respondent to re-hear and determine the Applicant’s Application dated 26/01/2024 as to whether the subject tender was opened in accordance with the law on the merits within such limited period as this court shall determine.
e) Costs of and incidental to this application be provided for.
f) Such further and other relief that the Honourable Court may deem just and expedient to grant.
2. The Application is predicated on the Statutory Statement and the Verifying Affidavit of Duncan Ndegwa Kiragu.
Applicant’s Case;
3. It is the Applicants case that on 25/10/2023, the 2nd Respondent invited sealed bids from interested eligible bidders via Tender No. KP1/9A.2/OT/030/PJT/23-24 (hereinafter referred to as the “subject tender”) by publishing an e-advertisement on its website. The said tender was amended several times through various addenda.
4. THAT the Applicant submitted its bid recorded as No. 375 as per the list of bidders who successfully submitted their bids.
5. THAT upon review of the subject tender, the Power Transmission Line Contractors Association noted that the framing of the tender would, unfortunately, curtail the participation of majority of the contractors bidding for Feeder Based Business Unit (FBBU) works as the same lacked equity in its resource distribution, was discriminatory against FFBU contractors and lacked transparency in the future allocation of works between FBBU contractors and Central Office Contractors.
6. The said Association, on the advice of its counsel on record, noted that the subject tender lacked the requisite affirmative action component mandated by law. This omission pertained specifically to the absence of provisions for the inclusion of women, youth, individuals with disabilities, and other marginalized groups, notwithstanding the presence of duly qualified contractors within these categories. Consequently, the 2nd Respondent’s failure to incorporate such reservations for contractors belonging to the aforementioned groups has the potential to impede the equitable distribution of resources across the country.
7. In view of the foregoing, the Power Transmission Line Contractors Association, as a representative of the collective voice of contractors made a formal request to the Procuring Entity to objectively relook into the tender provisions in a letter dated 2/11/2023 presented at the pre-bid meeting.
8. The 2nd Respondent declined to hear out the association terming it a non-entity in the tender process. Individual contractors took it upon themselves to raise the same issues with the 2nd Respondent. Despite raising these concerns, the procuring entity only partly and cosmetically resolved the same through an addendum dated 14/11/2023. No subsequent communication was issued by the 2ndRespondent concerning the primary concerns raised specifically those that touched on work, resource and financial allocation.
9. It is their case that given the imminent injustice and the failure of the 2nd Respondent to address the predominant issues affecting the tender’s framework, the Power Transmission Line Contractors Association filed Nairobi High Court Petition No. E007 of 2024 on 8/01/2024.
10. The primary relief sought in this petition is for the Constitutional and Human Rights Division Court to annul the subject tender in its entirety and to direct the 2nd Respondent to re-frame and re-tender the same in adherence to the law.
11. The subject tender, was officially closed on 15/01/2024 and was subsequently opened in an opening meeting on the same day at 11.30 a.m.
12. The Respondent filed, a notice of preliminary objection challenging the court’s jurisdiction to hear and determine the case and a replying affidavit indicating that the tender had already been opened on 15.01.2024 and was at the time at the evaluation stage.
13. It is its case that tender opening list and information form states that the meeting begun at 11:30am and that the tender was opened at Stima Plaza Auditorium, Ngara. However, the attendance list, which was signed by the attendees and the opening minutes, indicate that the opening venue of the tender was at the Institute of Energy Studies and Research off Thika Road, Ruaraka, Nairobi which means the Tender E-box was opened at Stima Plaza Auditorium at Ngara prior to being opened in the presence of attending bidders at the Institute if Energy Studied and Research at Ruaraka.
14. Further to the above, the members of the tender opening committee printed out a list of bidders who successfully submitted their bids and read out their names only as opposed to opening each and every tender.
15. This list was generated from the e-procurement portal. The reading of names ought to have been as a result of the opening of the tenders submitted by the bidders and the following information as mandatorily required by law was not read out:
a) Whether the contractor read out were bidding as Regional/Central Office Contractors or Feeder Based Business Units (FBBU) contractor.
b) Which category of works they were bidding for. Each contractor was bidding for either new connections or maintenance works in the respective regions or FBBUs.
c) Their choice of work cluster. A bidder had a choice of either Central Office/Regional cluster (allowed to choose a maximum of two (2) regions within one category of works) or FBBU cluster (allowed to choose a maximum of three (3) FBBUs, within a region and within the same category of works).
d) The price bid/sum of quoted unitary rates for each region(s) chosen (for regional/central office contractors) or for each FBBU(s) chosen for FBBU contractors.
16. It is their case that by failing to record and maintain this information, the 2nd Respondent failed to keep the tender opening register contemplated by the Act.
17. The tender opening committee only generated a list of bidders as opposed to opening each and every tender and reading out the information leaving room for manipulation of records and corruption at the evaluation and award stage.
18. The 2nd Respondent’s tender opening committee members failed to sign against all price bids/ sum of quoted unitary rates contrary to the law and to ensure that the electronic tender box was accessible only through three passwords that are simultaneously time activated and each issued to different officers who are members of the tender opening committee as borne in the tender opening meeting minutes that were filed by the 2nd Respondent herein in Milimani HC Petition No. E.007 of 2024.
19. This compelled the Applicant to file a Request for Review dated 26/01/2024, contesting the legality of the tender opening process.
20. The decision was rendered on 16/02/2024 wherein the 1st Respondent, in its rationale, made the following observations:
a) That the Request for Review dated 26/01/2024 challenged the tender process in respect of the subject tender.
b) That the Constitutional Petition challenged the tender process as well.
c) That both the Request for Review and the Constitutional Petition prayed for the cancellation of the tender and for the same to be retendered.
21. The 1st Respondent, in its reasoning, noted that the parties involved in both the Constitutional Petition and the Request for Review were the same. It further observed that both sets of pleadings sought the annulment of the present subject tender.
22. In its conclusion, the Respondent asserted that it lacked jurisdiction to adjudicate the raised issues, as it deemed them to potentially contravene the legal doctrine of sub judice.
23. The Applicant submits that the 1st Respondent’s decision dated 16/02/2024 was materially influenced by an error of law in that the Respondent misconstrued, misinterpreted, and misapplied the legal doctrine of sub judice in dismissing the request for review;
24. The term ‘sub-judice’ is defined in Black’s Law Dictionary 9th Edition as: “Before the Court or Judge for determination.” It denotes that a matter is being considered by a court or judge.
25. The question that the 1st Respondent, properly directing its mind in the request for review, should have asked is, “is the issue of the failure to comply with the law on tender opening being considered by the High Court in Petition E007 of 2024?”
26. The Applicant submits that there are three essential conditions for bringing in the operation of the doctrine of res sub judice. These are as follows: -
“(1) The matter in issue in the subsequent suit is directly and substantially in issue in the previously instituted suit, (2) The parties in the both suits are the same, either directly or indirectly and, (3) The court in which the first suit is instituted, is a court of having jurisdiction or competent to grant the relief claimed in the subsequently instituted suit.”
27. It submits that The parties in the two cases are different. The Ex Parte Applicant brought the Request in its capacity as a tenderer. The Petition before the High Court was filed by the Power Transmission Line Contractors Association and while the Ex-Parte Applicant is a member of the Association, the 1st Respondent went to great lengths to arrive at the unsubstantiated position that the Petition was being litigated on behalf of the Ex-Parte Applicant, though not a party in the Petition. The ex-parte applicant is a legally separate and distinct entity from its director, the deponent of the Affidavit in support of the Petition.
28. The issues in the two cases are different. At paragraph 58, the 1st Respondent alleged to have considered the issues raised and observed that the two cases challenged the tender process in respect of tender no. KP1/9A.2/OT/030/PJT/23-24 for provision of Labour and Transport Construction Services. Nothing could be further from the truth. It is clear that the 1st Respondent misunderstood the issues. While the two cases relate to the same tender as the subject matter- the issue before the High Court is the framing of the tender in breach of Constitutional provisions while the issue in the Request for review at the Review Board was failure to adhere to the law on the tender opening process.
29. It is the Applicants case that consequently, even though both cases sought similar reliefs, there is no risk of contradictory orders. The High Court would grant or fail to grant the orders sought depending on its finding on whether or not the tender was framed in accordance with the Constitutional dictates. On the other hand, a grant of the orders sought in the request for review would be based on the board’s finding on whether there was or there wasn’t compliance with the law and regulations on tender opening.
30. Reliance is placed in the case of Republic v Paul Kihara Kariuki, Attorney General & 2 others Ex parte Law Society of Kenya [2020] eKLR stated as follows:
“The uncompromising manner in which courts have consistently enforced the sub judice rule was best explained in Thiba MinHydro Co. Ltd v Josphat Karu Ndwiga,[13]which held that it is not the form in which the suit is framed that determines whether it is sub judice, rather it is the substance of the suit(emphasis ours). The court went further and stated that In determining whether or not sub judice applies, it is the substance of the claim that ought to be looked at rather than the prayers sought.”
31. On the third condition, does the High court, as the Court in which the first suit is instituted, have jurisdiction over a challenge to a breach of duty imposed on a procuring entity at any stage in procurement proceedings such as the breach of the law and regulations with regard to tender opening?
32. The Applicant relies on Section 167 of the Public Procurement and Asset Disposals Act vests jurisdiction on the 1st Respondent to undertake administrative review of matters relating to breach of duty imposed on a procuring entity by the Act or regulations, in the first instance. Access to the High Court, at the first instance, has been interpreted by the courts as an alternative forum for persons who are not “a candidate or a tenderer” as to avail themselves of the right to review under section 167.
33. Reliance is placed in in Law Society of Kenya & another v Kenya Ports Authority & another [2022] eKLR, the Hon. Justice J. A Makau faced with a similar situation held as follows:
“The Petitioners herein therefore cannot be subject to the bodies cited by the 1st respondent as was held in Republic vs Independent Electoral and Boundaries Commission & another Ex parte Coalition for Reform and Democracy & 2 others [2017] eKLR and Okiya Omtatah v Central Bank of Kenya & 7 Others [2018] eKLR.
I further note that by dint of Section 174 of the PPAD Act, persons such as the Petitioners herein aggrieved by the decision of the 1st Respondent but who cannot subject themselves to the PPARB can seek alternative remedy under the provisions of the law as was held in Elias Mwangi Mugwe vs Public Procurement Administrative Review Board & 5 others [2016] eKLR. Lastly, by virtue of Article 165 (3) (b) and (d) (ii) of the Constitution, this Court has the jurisdiction to handle this matter.”
34. It is its case that the 1st Respondent failed to consider the following relevant matters:
a) The Constitutional Petition challenges the framework of the subject tender while the Request for Review challenges the tender opening process. In any event the tender opening process happened after the filing of the Petition and was not a matter before the High Court.
b) Despite the similarity in the prayers sought, the impact of their respective grantings at the High Court and the Board would diverge due to disparities in the raised issues. If the Board had acceded to the Applicant's prayers, the 2nd Respondent would have been compelled to initiate a fresh tender process and conduct the tender opening in strict compliance with legal requirements. Conversely, if the High Court were to grant the Petitioner's prayers, the Procuring Entity would not only be mandated to reissue the tender but also to revise the existing framework to ensure strict adherence to Constitutional and legal mandates. There would be no risk, whatsoever, of contradictory orders emanating from the two cases as the issues are totally different.
c) It is not true that the parties in the two cases are the same, as alleged. RGIS Kenya Ltd is a distinct and separate legal entity from its directors and shareholders. The Applicant, in filing its request for review was exercising its rights as a bidder pursuant to the law. The Power Transmission Line Contractors Association represents a majority of the contractors engaged by the 2nd Respondent and cannot be said to be solely in court for the Applicant herein.
d) During the hearing, the 2nd Respondent acknowledged that, during the tender opening process, it solely opened the tender box and identified the tenderers. The 2nd Respondent did not open each and every tender as required by law for purposes of recording pertinent information relevant for purposes of ensuring a transparent and competitive process. This admission constitutes a direct acknowledgment of the 2nd Respondent's non-compliance with legal provisions governing the tender opening procedure. This admission was captured in paragraph 33 of the 1st Respondent's decision dated 16/02/2024.
e) Notwithstanding this admission and the 2nd Respondent's omission to file its intended Preliminary Objection, the 1st Respondent neglected to address the substantive issues raised and instead resolved the Applicant’s Request for Review based on a preliminary issue that was not formally raised by the 2nd Respondent.
35. The Applicant submission that the orders sought should be granted.
36. It is the Applicants case that is application is brought under Article 22 and 47 of the Constitution of Kenya, 2010 and the Fair Administrative Actions Act and order 53 of the Civil Procedure Rules, 2010.
37. This Honourable Court under Article 23 (3) (f) of the Constitution of Kenya, 2010 has power to grant the Judicial review orders of certiorari to quash the decision of the 1st Respondent as well as the 2nd Respondent’s tender for non-compliance with the law. It also provides for an order of mandamus to compel the 2nd Respondent to re-start the process in full compliance with the law.
38. It is on the basis of these provisions, granted the admission of non-compliance with duty imposed by law that we urge this Honourable court to quash the decision of the 1st Respondent and the 2nd Respondent’s tender for being bad in law for failing to comply with the law and regulations on tender opening.
39. The Applicant submits that in the alternative, Section 11 of the Act sets out the orders in proceedings for judicial review to include-
a) declaring the rights of the parties in respect to any matter to which the administrative action relates
b) Setting aside the administrative action or decision and remitting the matter for reconsideration by the administrator, with or without directions
c) compelling the performance by an administrator of a public duty owed in law and in respect of which the applicant has a legally enforceable right;
d) for the award of costs or other pecuniary compensation in appropriate cases.
40. In the case of Republic Vs. Public Procurement Administrative Review Board & 3 others Ex-parte Techno Relief Services Limited [2021] eKLR, the court dealt with a challenge to a decision of the Public Procurement Administrative Review Board where the PPARB had struck out an Application for Review of the Tender Number GF ATM HIV NFM-20/21-01T-011 for supply of nutritional supplements floated by the Kenya Medical Supplies Authority.
41. The court addressed the peculiar nature of judicial review post the 2010 constitution, i.e. introduction of Article 47 that provides a right to fair administrative action. The court held that;
“it is evident from these provisions that this Court has jurisdiction to review the decisions of subordinate courts and quasi-judicial bodies, of which the 1st Respondent is one. It is also inaccurate and one-dimensional to classify this Court’s review jurisdiction as being limited to the decision-making process of an administrative body or subordinate court, as it is evident that the Court can also review the merits of a decision in judicial review. The applicable restraints in the exercise of its judicial review jurisdiction are that the Court must be careful not to usurp and interfere with the matters entrusted to an administrative body or subordinate court to decide in the first instance, as its jurisdiction is supervisory. In addition, the Court cannot substitute its decision or preferred outcome with that of the said bodies or courts, hence the restrictions on the extent of merit review that can be undertaken in judicial review.” [Emphasis ours]
42. It is, therefore, clear that this Honourable Court can conduct a merit review in Judicial Review in addition to a process review. The remedies that the court can issue while sitting in a judicial review are as provided in Section 11 of the Fair Administrative Action Act, which reliefs might include “setting aside the administrative action or decision and remitting the matter for reconsideration by the administrator, with or without directions”
43. In the case at Techno Relief Services Limited case [Supra], the court, gave an order directing the 1stRespondent to rehear PPARB Case Number 34 of 2021 and to consider substantively the pleadings filed, within 30 days after the judgement had been rendered. Further the court issued orders that barred the entering of any contract with respect to the subject tender until the re-hearing and the determination of the application for review.
44. The power of the court to remit a matter back to an administrator while sitting in judicial review was buttressed in another case of Republic Vs. Data Protection Commissioner & 2 others ex parte Allen Waiyaki Gichuhi & 2 others: Judicial Review case no. e028 of 2023, the court remitted a matter back for reconsideration by the Data Protection Commissioner after the DPC had rendered a decision outside of its statutory time limited jurisdiction. The court set aside this determination and remitted back the matter to the ODPC for consideration within the set timelines. The court further, as provided for by the Fair Administrative Action Act, directed that the investigation be done and concluded within 30 days.
1st Respondents Case;
45. The Attorney-General, on behalf of the 1st Respondent in opposition filed a replying affidavit sworn by James Kilaka on 8th March 2024.
46. According to him, the Ex-parte applicant’s motion is essentially a review of the merits of the decision of the Respondent.
47. The Applicant has approached this court on grounds that the 1st Respondent’s decision violated the Applicant’s legitimate expectation, error of law, failure to consider relevant considerations, the Board abused its powers.
48. In the Ugandan case of Pastoli vs. Kabale District Local Government Council and Others [2008] 2 EA 300 In which the Court citing Council of Civil Unions vs. Minister for the Civil Service [1985] AC 2 and An Application by BukobaGymkhana Club [1963] EA 478 at 479 held that:
“In order to succeed in an application for judicial review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety...Illegality is when the decision-making authority commits an error of law in the process of taking or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality...Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards...Procedural Impropriety is when there is a failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision.”
49. According to 1st Respondent, the Applicant is asking this court to review the merits of the decision and asking this court to substitute the decision the Respondent arrived at procedurally with that of this Honorable Court.
50. Reliance is placed in the Municipal Council of Mombasa vs. Republic & Umoja Consultants Ltd [2002] eKLR where it was follows:
“Judicial review is concerned with the decision making process, not with the merits of the decision itself: the Court would concern itself with such issues as to whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters…The court should not act as a Court of Appeal over the decider which would involve going into the merits of the decision itself-such as whether there was or there was not sufficient evidence to support the decision.”
51. The 1st Respondent argues that it discharged its functions properly and made a determination of the issues in Request for Review No.6 of 2024 in the manner required by the Public Procurement and Asset Disposal Act, 2015 and guided by the principles enshrined under Articles 10 and 227 the Constitution of Kenya.
52. Under Section 173 of the Public Procurement and Asset Disposal Act the Respondent can:
“(a) annul anything the accounting officer of a procuring entity has done in the procurement proceedings, including annulling the procurement or disposal proceedings in their entirety; (b) give directions to the accounting officer of a procuring entity with respect to anything to be done or redone in the procurement or disposal proceedings; (c) substitute the decision of the Review Board for any decision of the accounting officer of a procuring entity in the procurement or disposal proceedings; (d) order the payment of costs as between parties to the review in accordance with the scale as prescribed; and (e) order termination of the procurement process and commencement of a new procurement process.”
53. It is its case that the applicants' assertion of legitimate expectation cannot withstand legal scrutiny in the present matter. As elucidated in the case of Invollate Wacike Siboe v Kenya Railways Corporation & another [2017] eKLR, legitimate expectation finds its foundation in representations made by an administrative authority, either expressly or impliedly, or through consistent past practice. However, it is imperative to note that legitimate expectation is circumscribed by the boundaries of legality. The doctrine does not bestow protection upon expectations that contravene statutory provisions.
54. In the instant case, the court is confronted with the unequivocal legal question around the provision of Section 6 of the Civil Procedure Act, which provides for a stay of proceedings where the matter at hand is directly and substantially in issue in a previously instituted suit or proceeding between the same parties.
55. It is its case that any purported legitimate expectation must align with the parameters set forth by statute to merit judicial consideration. Halsbury's Laws of England, defines “legitimate expectation arises when a decision maker, within their competent authority, engenders a genuine expectation through representation. However, it is axiomatic that such expectation cannot arise if its fulfillment entails a violation of statutory provisions.”
56. The applicants' invocation of legitimate expectation stands in direct contravention of Section 6 of the Civil Procedure Act, which prohibits the court from proceeding with the trial where the subject matter is concurrently pending in another court.
57. To entertain the applicants' plea on the basis of legitimate expectation would amount to sanctioning an ultra vires exercise of judicial authority, thereby undermining the integrity of statutory provisions.
58. Reliance is also placed in the case of Republic Vs National Employment Authority & 3 Others Ex-Parte Middle East Consultancy Services Ltd (2018) eKLR, the Court pronounced itself as follows: -
“This case presents an opportunity to this court to restate the function, scope and nature of Judicial Review remedies and the test for granting such remedies. In Judicial Review, the reviewing court cannot set aside a decision merely because it believes that the decision was wrong on merits. A court of review is concerned only with the lawfulness of the process by which the decision was arrived at, and can set it aside only if that process is flawed in certain defined and limited respects. The role of the court in Judicial Review is supervisory. It is not an appeal and should not attempt to adopt the “forbidden appellate approach.”
59. Judicial Review is about the decision making process, not the decision itself. The role of the court in Judicial Review is supervisory. Judicial Review is the review by a Judge of the High Court of a decision, proposed decision, or refusal to exercise a power of decision to determine whether that decision or action is unauthorized or invalid. It is referred to as supervisory jurisdiction-reflecting the role of courts to supervise the exercise of power by those who hold it to ensure that it has been lawfully exercised.
The 2nd Respondents Case:
60. According to the 2nd Respondent the ex-parte Applicant seeks to appeal the decision of the Public Procurement Administrative Review Board dated 16.02.2024.
61. Reliance is placed in the case of Municipal Council of Mombasa vs. Republic & Umoja Consultants Ltd Civil Appeal No. 185 of 2001, the Court held the following:
“Judicial review is concerned with the decision making process, not with the merits of the decision itself…”
62. The ex-parte Applicant was granted a right to a fair hearing as envisioned in Article 50 of the Constitution of Kenya which was also transparent.
63. It is their case that The ex-parte must illustrate the actual sins committed by the 1st Respondent to enable this Honourable Court grant the remedies sought within the principles as enunciated in the case Pastoli vs. Kabale District Local Government Council and Others [2008] 2 EA 300 the Court held:
“In order to succeed in an application for judicial review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety …
64. A decision made by a quasi-judicial body or an administrative decision can only be challenged on grounds of illegality, irrationality and procedural impropriety.
65. The 1st Respondent’s decision dated 16.02.2024 has not been shown to be illegal or ultra vires and outside the functions of the 1st Respondent nor has it been shown to be irrational or procedurally wrong.
66. In determining what an order of mandamus is, reliance is placed in the case of Republic vs. Kenya National Examinations Council ex parte Gathenji & Others Civil Appeal No. 266 of 1996, and the case of Shah vs. Attorney General (No. 3) Kampala HCMC No. 31 of 1969 [1970] EA 543, the Court stated the following;
“Mandamus is essentially English in its origin and development and it is therefore logical that the court should look for an English definition. Mandamus is a prerogative order issued in certain cases to compel the performance of a duty. It issues from the Queen’s Bench Division of the English High Court where the injured party has a right to have anything done, and has no other specific means of compelling its performance, especially when the obligation arises out of the official status of the respondent. Thus it is used to compel public officers to perform duties imposed upon them by common law or by statute and is also applicable in certain cases when a duty is imposed by Act of Parliament for the benefit of an individual. Mandamus is neither a writ of course nor of right, but it will be granted if the duty is in the nature of a public duty and especially affects the rights of an individual, provided there is no more appropriate remedy. The person or authority to whom it is issued must be either under a statutory or legal duty to do or not to do something; the duty itself being of an imperative nature… In cases where there is a duty of a public or quasi-public nature, or a duty imposed by statute, in the fulfilment of which some other person has an interest the court has jurisdiction to grant mandamus to compel the fulfilment.”
67. The remedies of certiorari are tools that the court uses to supervise public bodies and inferior tribunals to ensure that they do not make decisions or undertake activities which are ultra vires their statutory mandate or which are irrational or otherwise illegal. They are meant to keep public authorities in check to prevent them from abusing their statutory powers or subjecting citizens to unfair treatment.
68. The grant of the orders or certiorari and mandamus is discretionary. The ex-parte applicant has failed to justify the orders being sought.
69. To support its case, the 2nd Respondent also to relies on the following cases;
a) Republic v Public Procurement Administrative Review Board;Shenzhen Instrument Co. Limited & another (Interested Party) Ex parte Kenya Power and Lighting Company Limited [2019] eKLR
b) Republic v Ethics and Anti-Corruption Commission; Patria Properties Limited & another (Ex-parte) (Judicial Review Miscellaneous Application E002 of 2021) [2022] KEELC 14803 (KLR) (11 November 2022) (Ruling)
c) Republic v Public Procurement Administrative Review Board & another Ex-parte Intertek International Limited [2013] eKLR
Analysis and Determination
The issue that arises for determination is whether the Applicant is entitled to the orders sought.
70. In the Ugandan case of Pastoli vs Kabale District Local Government Council & Others, (2008) 2 EA 300, that:
“In order to succeed in an application for Judicial Review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety: See Council of Civil Service Union v Minister for the Civil Service [1985] AC 2; and also Francis Bahikirwe Muntu andothers v Kyambogo University, High Court, Kampala, Miscellaneous Application Number 643 of 2005 (UR).
Illegality is when the decision making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without Jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality….
Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards: Re an Application by Bukoba Gymkhana Club [1963] EA 478 at page 479 paragraph “E”.
Procedural impropriety is when there is failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision. (Al-Mehdawi v Secretary of State for the Home Department [1990] AC 876).”
71. It is clear that the Applicant is aggrieved, unsatisfied and very categorical that the 1st Respondent failed to consider the following relevant matters:
“The Constitutional Petition challenges the framework of the subject tender while the Request for Review challenges the tender opening process. In any event the tender opening process happened after the filing of the Petition and was not a matter before the High Court.
Despite the similarity in the prayers sought, the impact of their respective grantings at the High Court and the Board would diverge due to disparities in the raised issues. If the Board had acceded to the Applicant's prayers, the 2nd Respondent would have been compelled to initiate a fresh tender process and conduct the tender opening in strict compliance with legal requirements. Conversely, if the High Court were to grant the Petitioner's prayers, the Procuring Entity would not only be mandated to reissue the tender but also to revise the existing framework to ensure strict adherence to Constitutional and legal mandates. There would be no risk, whatsoever, of contradictory orders emanating from the two cases as the issues are totally different.
It is not true that the parties in the two cases are the same, as alleged. RGIS Kenya Ltd is a distinct and separate legal entity from its directors and shareholders. The Applicant, in filing its request for review was exercising its rights as a bidder pursuant to the law. The Power Transmission Line Contractors Association represents a majority of the contractors engaged by the 2nd Respondent and cannot be said to be solely in court for the Applicant herein.
During the hearing, the 2nd Respondent acknowledged that, during the tender opening process, it solely opened the tender box and identified the tenderers. The 2nd Respondent did not open each and every tender as required by law for purposes of recording pertinent information relevant for purposes of ensuring a transparent and competitive process. This admission constitutes a direct acknowledgment of the 2nd Respondent's non-compliance with legal provisions governing the tender opening procedure. This admission was captured in paragraph 33 of the 1st Respondent's decision dated 16/02/2024.
The 1st Respondent neglected to address the substantive issues raised and instead resolved the Applicant’s Request for Review based on a preliminary issue that was not formally raised by the 2nd Respondent.”
72. In the case of Republic vs National Employment Authority & 3 Others Ex-Parte Middle East Consultancy Services Ltd (2018) eKLR, the Court pronounced itself as follows: -
“This case presents an opportunity to this court to restate the function, scope and nature of Judicial Review remedies and the test for granting such remedies. In Judicial Review, the reviewing court cannot set aside a decision merely because it believes that the decision was wrong on merits. A court of review is concerned only with the lawfulness of the process by which the decision was arrived at, and can set it aside only if that process is flawed in certain defined and limited respects. The role of the court in Judicial Review is supervisory. It is not an appeal and should not attempt to adopt the “forbidden appellate approach.”
Judicial Review is about the decision making process, not the decision itself. The role of the court in Judicial Review is supervisory. Judicial Review is the review by a Judge of the High Court of a decision, proposed decision, or refusal to exercise a power of decision to determine whether that decision or action is unauthorized or invalid. It is referred to as supervisory jurisdiction-reflecting the role of courts to supervise the exercise of power by those who hold it to ensure that it has been lawfully exercised.
73. The court of Appeal in Kenya Pipeline Ltd vs. Hyosung Ebara Company Ltd [2012] eKLR; held that:
“The Review Board is a specialized statutory tribunal established to deal with all complains of breach of duty by the procuring entity. By Reg. 89, it has power to engage an expert to assist in the proceedings in which it feels that it lacks the necessary experience. S. 98 of the Act confers very wide powers on the Review Board. It is clear from the nature of powers given to the Review Board including annulling, anything done by the procurement entity and substituting its decision for that of the procuring entity that the administrative review envisaged by the Act is indeed an appeal. From its nature the Review Board is obviously better equipped than the High Court to handle disputes relating to breach of duty by procurement entity. It follows that its decision in matters within its jurisdiction should not be lightly interfered with.”
74. It is my finding and I so hold that in the instant suit, this court is concerned only with the lawfulness of the process by which the decision was arrived at. This court can set it aside the impugned decision only if that process is flawed in certain defined and limited respects. The role of this court in Judicial Review jurisdiction is supervisory. It is not an appeal and should not attempt to adopt the “forbidden appellate approach. “The Applicant has failed to persuade the court that it has reasons that would justify the setting aside of the impugned decision.
75. This leaves the court with the question of whether the suit is subjudice. Section 6 of the Civil Procedure act Cap 21 defines Sub-judice in the following terms;
“No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.”
76. It is not in dispute from the submissions of the parties herein that there is in existence Milimani HC Petition No. E.007 of 2024.It is further not in dispute that The Applicant filed a Request for Review dated 26/01/2024.Both the Request for Review and the Petition prayed for the cancellation of the tender and for the same to be retendered.
77. On 8/02 /2024, the Applicant’s application was heard and a decision rendered and supplied to all parties on 16/02/2024 wherein the 1st Respondent, in its rationale, made the following observations:
a) That the Request for Review dated 26/01/2024 challenged the tender process in respect of the subject tender.
b) That the Constitutional Petition challenged the tender process as well.
c) That both the Request for Review and the Constitutional Petition prayed for the cancellation of the tender and for the same to be retendered.
78. The applicant admitted that Despite the similarity in the prayers sought, the impact of their respective outcomes at the High Court and the Board would diverge due to disparities in the raised issues.
79. In its decision, the 1st Respondent, in its reasoning, noted that the parties involved in both the Constitutional Petition and the Request for Review were the same.
80. The applicant is concerned that the 1st Respondent failed to consider the following relevant matters The Constitutional Petition challenges the framework of the subject tender while the Request for Review challenges the tender opening process. In any event the tender opening process happened after the filing of the Petition and was not a matter before the High Court.
81. In Republic vs. Public Procurement Administrative Review Board & Another Ex Parte Selex Sistemi Integrati Nairobi HCMA No. 1260 of 2007 [2008] KLR 728 where the court held as follows:
“From the foregoing it is clear that the 1st Respondent considered all the issues raised by the applicants before proceeding to dismiss their request for review. In my view the applicants are asking me to look at the 1st Respondents said decision and reach a conclusion that the 1st Respondent erred both in fact and in law when it reached that decision. The question would then be whether this court acting as a judicial review court has powers to interfere with the decision…This court is being asked to determine whether the 1st respondent misapprehended the law as relates to the technical evaluation and award of scores thereunder. In my view, such an enquiry would amount to sitting on appeal over the decision of the 1st respondent. Indeed, Parliament was alive to the distinction between judicial review and appeal in procurement proceedings when it provided in Section 100 of the Act that: -
(1) A decision made by the Review Board shall, be final and binding on the parties unless judicial review thereof commences within fourteen days from the date of the Review Board’s decision.
(2) Any party to the review aggrieved by the decision of the Review Board may appeal to the High Court, and the decision of the High Court shall be final.
82. In Republic v Public Procurement Administrative Review Board Exparte Giant Forex Bureau De’ Change Limited & 2 others [2017] eKLR the Court opined that:
“That misapprehension, or error of law or fact, however, is not an issue within the judicial review purview of this court. This proposition was upheld by the Court of Appeal in the cited KENYA PIPELINE COMPANY LIMITED (supra) case in the following words: - In conclusion, it is manifest that the application for Judicial Review was not well founded. The 1st Respondent did not establish that the Review Board had acted without jurisdiction or in excess of jurisdiction or in breach of rules of natural justice or that the decision was irrational. The Judicial Review was not confined to the decision making process but rather with the correctness of the decision on matters of both law and fact. So long as the proceedings of the Review Board were regular and it had jurisdiction to adjudicate upon the matters raised in the Request for Review, it was as much entitled to decide those matters wrongly as it was to decide them rightly.
The High Court erred in essence in treating the judicial review application as an appeal and in granting judicial review orders on the grounds which were outside the scope of Judicial Review jurisdiction.”
83. The Court of Appeal in Civil Appeal No. 83 of 2017 Joel Kenduiywo vs District Criminal Investigation Officer Nandi & 4 Others (2019) eKLR the court held as follows: -
“Section 6 of the Civil Procedure Act is meant to prevent abuse of the court of process where parallel proceedings are held before two different courts with concurrent jurisdictions or before the same court at different times. This is to obviate a situation where two courts of concurrent jurisdiction arrive at different decisions on the same facts, evidence and cause of action.”
84. The 1st Respondent, in its reasoning, noted that the parties involved in both the Constitutional Petition and the Request for Review were the same. It further observed that both sets of pleadings sought the annulment of the present subject tender.
85. In its conclusion, the Respondent asserted that it lacked jurisdiction to adjudicate the raised issues, as it deemed them to potentially contravene the legal doctrine of sub judice.
86. It is my finding that this court cannot conduct a merit or a substantive merit analysis of the foregoing. To do so would go against the principles of Judicial review. It is my finding that the proceedings of the Review Board were regular and the 1st Respondent had jurisdiction to adjudicate upon the matters raised in the Request for Review, it was as much entitled to decide those matters wrongly as it was to decide them rightly in arriving at the impugned decision.
87. The applicant should have lodged an appeal to challenge the finding of the 1st Respondent and not a judicial review application.
Disposition:
88. The application does not fulfill the principles for the grant of the orders sought as enunciated in the case of Pastoli vs. Kabale District Local Government Council and Others [2008] 2 EA 300.
Order:
The application dated 29th February 2024 is dismissed with costs.
Dated, signed and delivered at Nairobi this 11th Day of April 2024.
……………………………
J. CHIGITI (SC)
JUDGE