1. The Originating Motion herein, dated 26th May 2026, seeks the reliefs of certiorari to quash a decision made by the 1st respondent on 12th May 2026, in PPARB Application No. 57 of 2026; and that the reliefs sought in that PPARB Application No. 57 of 2026 be allowed.
2. The certiorari order is sought to quash the decision in PPARB Application No. 57 of 2026, which upheld the preliminary objections raised by the 2nd, 3rd and 4th respondents, dated 22nd April 2026 and 27th April 2026, respectively, striking out the Request for Review, filed by the applicant, dated 21st April 2026, for want of jurisdiction, and ordering the 2nd and 3rd respondents to proceed with the procurement process, in Tender No. KPI/9A.3/OT/18/25-26, for supply of and delivery of off grid power stations (consignment stocking). The reliefs sought, in PPARB Application No. 57 of 2026, were for annulment of the decision by the 2nd respondent, communicated in a letter of intention to award, dated 2nd April 2026, that the bid by the applicant, in Tender No. KPI/9A.3/OT/18/25-26 was unsuccessful and that the successful bidder was the 4th respondent; that the said tender, Tender No. KPI/9A.3/OT/18/25-26, be re-evaluated and awarded to the applicant.
3. The grounds, upon which the Originating Motion is premised, are set out on the face of the application. It is averred that the applicant was 1 of 3 successful bidders for Tender No. KPI/9A.3/OT/18/25-26, and the applicant had filed the Request for Review in PPARB Application No. 57 of 2026; the 1st respondent did not conduct a merit-based inquiry, on that Request for Review, but instead elevated it to an inquiry on jurisdiction, and struck out the Request for Review, notwithstanding unrebuttable representations, that the evaluation of the bid did not follow the criteria set out in the tender documents; the applicant spoke to the damage and loss occasioned by the evaluation process, that was in breach of the requirements set out in the tender document, the Constitution and the Public Procurement and Asset Disposal Act, Cap. 412C, Laws of Kenya; and the notification of award, dated 2nd April 2026, spoke to an alien evaluation criterion called “competitive price”, rather than the “lowest evaluation tender” bid.
4. It is averred that the 2nd respondent had advertised Tender No. KPI/9A.3/OT/18/25-26, for supply and delivery of off grid power stations (consignment stocking), for 24 months. The wording of that tender, it is further averred, envisaged that the successful bid would be substantially responsive and the lowest evaluated price; substantial responsiveness as opposed to mere responsiveness; technical ability, by the tenderer, to execute the contractual obligation under the tender; the right, on the part of the 2nd respondent, to seek information and additional documents from the tenderer; and compliance with constitutional, statutory and contractual obligations on matters relating to the evaluation.
5. It is further averred that the applicant submitted a tender, which met the requirements of the tender specifications, and complied with sections 77(3) and 79(1) of the Public Procurement and Asset Disposal Act. However, despite the bid being responsive, the 2nd respondent, without any colour or justification, concluded that the bid was unsuccessful, on the basis that the price was not competitive, and awarded the tender to the 4th respondent, who had submitted the third lowest total tender price. It is averred that the notification revealed that the evaluation of the bid, by the applicant, was not in accordance with the tender, particularly clauses 33, 38 and 40.1 thereof, which envisaged the successful tender as the lowest evaluated tender bid, and not the competitive price. It is averred that that was contrary to the tender document and the evaluation criteria set in clauses 33 and 38 and section III clause 2.2, as competitive price was not a criterion under the tender. It is suggested that there was no just and lawful evaluation of the bids that were before the 2nd respondent.
6. It is asserted that the applicant had the best technical capacity, to discharge the contractual obligations under the tender, which criteria was the most material for the evaluation of the said tender, and which was not taken into consideration, and the applicant, being the current supplier, shall suffer loss and damage.
7. It is averred that section 80 of the Public Procurement and Asset Disposal Act and Regulation 16(5) of the Public Procurement and Asset Disposal Regulations, 2006, impose an obligation for evaluation of tenders in accordance with the evaluation criteria, and the procedures set out under the tender document, and, therefore, the taking into account irrelevant factors, in evaluating the bid, submitted by the applicant, the 2nd respondent deviated from the purpose and objectives in the Public Procurement and Asset Disposal Act and the Public Procurement and Asset Disposal Regulations, and violated the provisions of Articles 10 and 227 of the Constitution, section 88 of the Public Procurement and Asset Disposal Act and Regulations 29, 30, 75, 76 and 77 of the Public Procurement and Asset Disposal Regulations.
8. It is argued that Articles 47 and 227 of the Constitution, read together with section 4 of the Fair Administrative Action Act, Cap. 7L, Laws of Kenya, guarantee the right to administrative action which is fair, reasonable, lawful and efficient, and it is submitted that those provisions were contravened, when the 2nd respondent found that the bid by the applicant was not price competitive, notwithstanding that the bid by the 4th respondent was the third lowest and not technically responsive. It is asserted that the 4th respondent would not have been the successful bidder, had the 2nd and 3rd respondents applied themselves constitutionally, lawfully and contractually.
9. The supporting affidavit is sworn by Mr. Martin Kiarie, the head of sales with the applicant, on 26th May 2026. The contents of the affidavit largely regurgitate the substance of the grounds on the face of the application.
10. Several documents are exhibited to the supporting affidavit. There is a copy of the advertisement for the tender and the tender. There is a copy of the notification of intention to award tender, dated 2nd April 2026. There is a copy of a self-declaration, which should show, according to the applicant, that the 4th respondent had no capacity to meet the tender requirement, and could not have made a responsive bid. There is a copy of the Request for Review, by the applicant, dated 21st April 2026, together with the affidavits and the annextures supporting it. There are copies of the preliminary objections raised by the 2nd, 3rd and 4th respondents, dated 22nd April 2026 and 27th April 2026. There is a copy of the decision of the 1st respondent, in PPARB Application No. 57 of 2026, dated 12th May 2026. The final document is a notification of the award, dated 2nd December 2022, with respect to a previous tender, where the applicant was the successful bidder.
11. The Originating Motion was placed before me, on 26th May 2026, under certificate of urgency, and I gave directions, with respect to service, and filing of responses. I also granted temporary relief, in terms of prayer 2 of the Originating Motion.
12. Upon being served with the Originating Motion, the respondents have filed notices of appointments of their respective Advocates, and have responded to the application, by way of replying affidavits.
13. The reaction to the Originating Motion, by the 1st respondent, took the form of an affidavit in reply, sworn by Mr. Philemon Kiprop, the Secretary to the 1st respondent, dated 5th June 2026. It is averred that the application, by way of Originating Motion, is an appeal, disguised as an application for judicial review, of the decision of the 1st respondent, of 12th May 2026, in PPARB Application No. 57 of 2026, and the court is urged to decline to allow it, on grounds of want of jurisdiction to determine an appeal against the said decision. It is asserted that the decision of the 1st respondent, was premised on section 167(1) of the Public Procurement and Asset Disposal Act, and on the finding and holding that the applicant had failed to expressly plead or claim, in its Request for Review, that had suffered or was likely to suffer loss or damage, due to an alleged breach of duty imposed on the 2nd and 3rd respondents by the Public Procurement and Asset Disposal Act. It is further averred that the applicant sought, through a further affidavit and written submissions, to cure the omission or defect to make that pleading, but the 1st respondent ruled that an affidavit is not a pleading, and it cannot be used to cure a deficiency in a pleading, without amending the pleading itself. It is averred that the 1st respondent properly found and held that the applicant lacked standing to seek administrative review, for failure to plead that it had suffered or risked suffering loss or damage, due to a duty imposed on the 2nd and 3rd respondents, by the Public Procurement and Asset Disposal Act, and the 1st respondent itself, on account of that, lacked jurisdiction to hear and determine the Request for Review.
14. The reply, to the Originating Motion, by the 2nd and 3rd respondents, is vide an affidavit that Mr. Dennis Maanzo, a legal officer of the 2nd respondent, swore on 3rd June 2026. It is averred that the decision of the 1st respondent was fair, lawful, sound, reasonable and took into account all the relevant facts and the law, and that no illegality, error of law or unreasonableness is demonstrated. It is averred that the 2nd and 3rd respondents raised a preliminary objection to the Request for Review, filed in PPARB Application No. 57 of 2026, dated 12th May 2026, premised on section 167(1) of the Public Procurement and Asset Disposal Act, arguing that loss or damage suffered by an unsuccessful bidder, is a prerequisite for lodge of a Request for Review, and it must be pleaded, for jurisdiction to be invoked. It is argued that the 1st respondent appreciated the requirements of section 167(1), and found and held that a party seeking review by it, must plead suffering loss or damage, or a risk of such suffering, due to a breach of duty imposed on a procuring entity by the Public Procurement and Asset Disposal Act and the Regulations made under it. It is averred that the 1st respondent found and held that the applicant did not plead any loss or damage, arising from a breach of a duty, on the part of the 2nd and 3rd respondents, a duty imposed on them by the Public Procurement and Asset Disposal Act. It is also averred that the tendering process was carried out substantially in compliance with the tender documents, the Public Procurement and Asset Disposal Act, the Public Procurement and Asset Disposal Regulations 2020 and the Constitution.
15. A number of copies of documents are attached to the replying affidavit. There is a copy of the Memorandum of Response to the Request for Review, which the 2nd and 3rd respondents filed in PPARB Application No. 57 of 2026, dated 22nd April 2026. A copy of the notice of preliminary objection, dated 22nd April 2026, which was also filed, by the 2nd and 3rd respondents, in PPARB Application No. 57 of 2026. A copy of the written submissions, that the 2nd and 3rd respondents filed in PPARB Application No. 57 of 2026, dated 4th May 2026, is also annexed.
16. The reply, by the 4th respondent, is vide an affidavit, sworn by its Executive Director, Mr. Joseph Chebungei Kiptoo, on 5th June 2026. It is averred that the 4th respondent was notified, by a letter, dated 2nd April 2026, that its bid was successful. The applicant was aggrieved, and lodged a Request for Review, with the 1st respondent, filed in PPARB Application No. 57 of 2026. The 4th respondent filed a reply to the Request for Review, and raised a preliminary objection. The preliminary objection turned on the Request for Review not being premised on section 167(1) of the Public Procurement and Asset Disposal Act, hence the 1st respondent lacked jurisdiction to entertain it. The 1st respondent ruled in favour of the 4th respondent. It is asserted that that decision, of the 1st respondent, was rational, lawful, procedurally fair and within statutory mandate. The 4th respondent asserts that only a bidder, who claims to have had suffered or risked suffering loss or damage due to alleged breach of duty, imposed on a procuring entity, may invoke the jurisdiction of the 1st respondent. It is argued that that is mandatory, under section 167(1) of the Act, and that the failure to invoke it was fatal.
17. The 4th respondent has placed on record some documents to support its case. There is the letter of 2nd April 2026, awarding the tender. There is a copy of the affidavit the 4th respondent filed in PPARB Application No. 57 of 2026. There is also a copy of the notice of the preliminary objection that it raised in PPARB Application No. 57 of 2026. There is also a copy of the written submissions that it filed in PPARB Application No. 57 of 2026.
18. Directions, on disposal of the Originating Motion, were given on 8th June 2026, for canvassing by way of written submissions, to be filed and exchanged within 14 days. Judgement was fixed for 6th July 2026 at 2.00 PM.
19. The parties complied, by filing their respective written submissions. The applicant filed a set of written submissions, dated 15th June 2026 and 25th June 2026. The written submissions, by the 1st respondent, are dated 23rd June 2026. The written submissions, by the 2nd and 3rd respondents, are dated 22nd June 2026. The written submissions, by the 4th respondents, are dated 22nd June 2026.
20. The applicant filed 2 pieces of written submissions. The first being the main submissions, and the second comprising of supplementary submissions, reacting to the submissions made by the other parties. I shall narrate the main submissions first, and advert to the supplementary submissions after I have narrated the submissions filed by the other parties.
21. In the main submissions, the applicant identifies 2 issues for determination. The first issue revolves around whether the applicant failed to satisfy the requirements of section 167(1) of the Public Procurement and Asset Disposal Act, and the second is about whether the applicant is entitled to the reliefs that it has sought. It has submitted around locus standi and jurisdiction; the construction that ought to be given to section 167(1) of the Public Procurement and Asset Disposal Act; the place of Article 159(2) of the Constitution in the construction of section 167(1) of the Public Procurement and Asset Disposal Act; and striking out of pleadings.
22. On locus standi and jurisdiction, it is argued that the 1st respondent went wrong in conflating between locus standi and jurisdiction. The issue raised, with respect to section 167(1) of the Public Procurement and Asset Disposal Act, it is argued, turned on jurisdiction, not locus standi, for the applicant had locus standi to seek review, for it had been party to the tendering process, and, as an unsuccessful bidder, it was entitled to challenge the outcome and process of the evaluation of the tender. The decisions, in Khelef Khalif El-Busaidy vs. Commissioner of Lands & 2 others [2002] eKLR [2002] KEHC 1117 (KLR) and Republic vs. Public Procurement Administrative Review Board; Samno Company Limited & another (Interested Parties) Ex parte Ministry of Defence & another [2019] eKLR [2019] KEHC 775 (KLR), are cited.
23. On the construction that ought to be given to section 167(1) of the Public Procurement and Asset Disposal Act, it is argued that the 1st respondent misdirected itself, when it imposed a requirement that is not expressly provided for under the Public Procurement and Asset Disposal Act and the Public Procurement and Asset Disposal Regulations. It is argued that the proper approach to the matter ought to have been that adopted in Republic vs. Public Procurement Administrative Review Board; Accounting Officer, Kenya Electricity Generating Company PLC & 2 others (Interested Parties); Sinopec International Petroleum Services Corporation (Ex parte) [2024] KEHC 16676 (KLR) and PPARB No. 143 of 2020 Maverick Digital Limited vs. The Accounting Officer, Kenya Ports Authority & another and Zocom Limited & 8 others. It is submitted that the applicant had filed affidavits, which dwelt on the loss or damage that section 167(1) of the Public Procurement and Asset Disposal Act envisages, yet, the said affidavits were ignored, despite not being struck out. Cecil Miller vs. Jackson Njeru & another [2017] eKLR [2017] KEHC 1499 (KLR) and HC Judicial Review Miscellaneous Application No. E039 of 2022 (Republic vs. Public Procurement Administrative Review Board and CIC Group Insurance & another) are cited in support.
24. On the place of Article 159(2) of the Constitution, in the construction of section 167(1) of the Public Procurement and Asset Disposal Act, it is submitted that Article 159(2) of the Constitution requires justice to be administered without undue regard to technicalities of procedure, for justice to be done to all. The applicant cites several decisions were the courts discourage the striking out of pleadings, asserting that that approach is drastic and draconian, to be employed only as a last resort, where the pleadings cannot be cured by way of amendment. The decisions cited include Mwahima Mwalimu Masudi vs. Independent Electoral and Boundaries Commission & 3 others [2017] KEHC 2259 (KLR), Nicholas Kiptoo Arap Salat vs. Independent Electoral and Boundaries Commission & 6 others [2013] eKLR [2013] KECA 113 (KLR), James Mang’eli Musoo vs. Ezeetec Limited [2014] KEELRC 761 (KLR) and DT Dobie & Company (Kenya) Limited vs. Joseph Mbaria Muchina & another [1980] eKLR [1980] KECA 3 (KLR).
25. In its written submissions, the 1st respondent has addressed issues around jurisdiction, and the threshold for grant of judicial review orders. On jurisdiction, it is submitted that section 173 of the Public Procurement and Asset Disposal Act specifies the nature of the orders that the 1st respondent may make, which include annulment of the procurement or disposal process, give directions to the accounting officer for something to be done or redone in the procurement or disposal process, substitute the decision of the 1st respondent with that of the accounting officer, order payment of costs between the parties to the review, and order termination of the procurement process and commencement of a new procurement process. It is argued that the orders made by the 1st respondent were in line with what is expected of it, under section 173 of the Public Procurement and Asset Disposal Act.
26. Secondly, the 1st respondent submits that the purpose of judicial review is to ensure that a party receives fair treatment in the hands of public bodies. Seventh Day Adventist Church (East Africa) Limited vs. Permanent Secretary, Ministry of Nairobi Metropolitan Development & another [2014] eKLR [2014] KEHC 7601 (KLR) is cited. It is asserted that the purpose of judicial review is not to ensure that the public body reaches a conclusion which is correct in the eyes of the court. Republic vs. Kenya Revenue Authority Ex parte Yaya Towers Limited [2008] eKLR [2008] KEHC 489 (KLR) is cited in support. It is submitted that the judicial review process is not akin to an appeal, and the court, seized of a judicial review matter, is not empowered to venture into correcting the decisions of the 1st respondent, on the merits, for it is the work of the 1st respondent to look into the merits. Republic v Kenya Revenue Authority & another Ex-Parte Bear Afric (K) Limited [2013] KEHC 2095 (KLR), Republic vs. Commissioner of Customs Services ex parte Africa K-Link International Limited [2012] eKLR [2012] KEHC 1274 (KLR) and Kenya Pipeline Company Limited vs. Hyosung Ebara Company Limited & 2 others [2012] eKLR [2012] KECA 104 (KLR) are cited.
27. The criteria to be employed, to evaluate whether judicial review orders are available, should be illegality, impropriety of procedure and irrationality, it is argued, based on Re Bivac International SA (Bureau Veritas) [2005] 2 EA 43 and Pastoli vs. Kabale District Local Government Council & others [2008] 2 EA 300. It is submitted that it would be upon the party, seeking judicial review, to establish breach of any of the criteria above.
28. It is submitted that where an applicant alleges that the tribunal had made an error of law, it must be demonstrated that there was, indeed, a mistake that goes to jurisdiction of the tribunal. However, it is argued, a misinterpretation of the law is not a sufficient reason to move the court for judicial review orders. It is argued that the instant proceedings are an appeal disguised as a judicial review application, and the same should not be entertained. It is submitted that there is a clear distinction between appeal and judicial review, where judicial review only focuses on the fairness of the process, under which the impugned decision or action was arrived at. The court, seized of a judicial review matter should focus only on that, and should not consider the merits of the decision, for reviewing a decision on merits would be tantamount to usurping the power of the tribunal. Municipal Council of Mombasa vs. Republic & another [2002] eKLR [2002] KECA 8 (KLR), Republic vs. Kenya Power & Lighting Company Limited & another [2013] eKLR, Mureithi & 2 others (All suing for and on behalf of Mbari-Ya Murathimi Clan) v Attorney General & 5 others [2006] eKLR [2006] KEHC 3488 (KLR), Republic of Kenya vs. University of Nairobi [2002] 2 EA 572, Okiya Omtatah Okoiti vs. Kenya Revenue Authority & 2 others [2016] eKLR [2016] KEHC 7693 (KLR) and Republic vs. Cabinet Secretary, Ministry of Interior and Coordination of National Government & 2 others ex parte Patricia Olga Howson [2013] eKLR [2013] KEHC 676 (KLR) are cited.
29. The 2nd and 3rd respondents submit on whether the applicant pleaded that it suffered or risked suffering loss or damage, as a result of an alleged breach of the law, by the 2nd respondent, in its quest for review; illegality, irrationality and procedural impropriety; threshold for grant of the orders sought; and costs.
30. On whether the applicant pleaded that it suffered or risked suffering loss or damage, as a result of an alleged breach of a duty imposed by law, by the 2nd respondent, in its quest for review, it is submitted that there is no contestation, that the Request for Review did not carry a pleading, to establish that the applicant suffered or risked suffering loss or damage, due to breach of a duty imposed on the 2nd respondent, by the Public Procurement and Asset Disposal Act.
31. On illegality, irrationality, and procedural impropriety, it is submitted that, notwithstanding section 7(2) of the Fair Administrative Action Act, judicial review is anchored on these 3 pillars. It is submitted that, beyond the averment that the decision was tainted by illegality, none of the grounds on which it is premised point to any form of illegality. Municipal Council of Mombasa vs. Republic & another [2002] eKLR[2002] KECA 8 (KLR), Judges and Magistrates Vetting Board vs. Centre for Human Rights and Democracy [2014] eKLR [2014] KESC 9 (KLR) and Republic vs. Kenya Bureau of Standards & 2 others Ex parte Gladys Nyawira Wanjohi [2014] KEHC 7666 (KLR) are cited, for emphasis that a court seized of judicial review proceedings, only focuses on the lawfulness of the decision, on account of legality rationality and reasonableness, but not on the merits of the decision. It is submitted that whereas judicial review is on the lawfulness of the decision, appeal is on the merits of the decision.
32. On illegality, Republic vs. Public Procurement Administrative Review Board & 2 others Ex parte Rongo University [2018] eKLR [2018] KEHC 9643 (KLR), is cited, where illegality is identified as the contravention or exceeding of the terms of the power which authorises the making of the decision, pursuit of an objectives other than that for which the power to make the decision is conferred, the decision is not authorised by any power and it contravenes or fails to implement public duty. It is submitted that the applicant asserts that the decision was tainted by error of law, by the finding that the review application did not satisfy section 167(1) of the Public Procurement and Asset Disposal Act. It is pointed out, that under section 167(1) of the Public Procurement and Asset Disposal Act, the party who may lawfully seek review of a decision of the 1st respondent, or invoke its jurisdiction, would be one who participated in the procurement process, either as a bidder or as tenderer, and should allege that they suffered or risked suffering loss or damage, as a result of breach of the law, by the procuring entity. It is asserted that pleading loss or damage, or risk of loss or damage, on account of a breach of the law by the 2nd respondent, is a prerequisite for any party filing a Request for Review, which must be pleaded, for jurisdiction to be properly invoked, under section 167(1) of the Public Procurement and Asset Disposal Act. It is argued that the applicant did not plead loss or damage, or risk of the same, on account of a breach of the law by the 2nd respondent; neither was the same established or demonstrated.
33. It is asserted that the 1st respondent noted the contents of section 167(1) of the Public Procurement and Asset Disposal Act, and appreciated that for a party to invoke the jurisdiction, it must claim to have suffered that which is set out in that provision. It is also submitted that the 1st respondent appreciated the law and the jurisprudence, on the requirement for a candidate or tenderer to plead suffering loss or damage, or the risk of suffering the same, due to such breach. The decisions, in James Oyondi t/a Betoyo Contractors & another vs. Alroba Enterprises & another [2019] eKLR [2019] KECA 916 (KLR); Republic vs. Public Procurement Administrative Review Board & 2 others, Mfi Document Solutions Limited (Interested Party), Mal-Mart Enterprises Limited (Ex parte) [2024] KEHC 9582 (KLR); Space Contractors & Suppliers Investments Limited vs. Public Procurement Administrative Review Board & 23 others [2023] KECA 1457 (KLR) and Milimani HCJRMISC/E069/2025: Peesam Limited vs. KPLC & 6 others, are cited in support. It is averred that the 1st respondent properly found that there was no locus standi to bring the proceedings, and that the same was not subsequently cured by the filing of a reply to Request for Review and the affidavits subsequently filed.
34. On irrationality and procedural impropriety, the decisions in Republic vs. Public Procurement Administrative Review Board Ex parte Intertek International Limited, Accounting Officer Kenya Bureau of Standards & 6 others (Interested Parties) [2022] eKLR [2022] KEHC 1175 (KLR), Pastoli vs. Kabale District Local Government Council & others [2008] 2 EA 300 and Republic v District Land Adjudication and Settlement Officer Maara Sub- County & 3 others; Kiririka (Interested Party); Ragwa (Ex parte) [2021] eKLR [2021] KEELC 338 (KLR), are cited, on what constitutes those 2, being gross unreasonableness which no reasonable authority, properly addressing its mind to the law and facts before it could make such a decision, for the decision would defy logic and acceptable moral standards; and failure to act fairly, by way of non-observance of rules of natural justice, or failure to follow the laid down procedural rules, expressed in the applicable statute. It is argued that the applicant did not plead irrationality and procedural impropriety, as grounds for the review sought.
35. On whether the application meets the threshold for grant of the orders sought, for certiorari, Paul Kiplagat Birgen & 25 others vs. Independent Electoral and Boundaries Commission & 2 others [2011] eKLR [2011] KEHC 1246 (KLR) and Republic vs. Public Procurement Administrative Review Board, Shenzhen Instrument Co. Limited & another (Interested Party) Ex parte Kenya Power & Lighting Company Limited [2019] eKLR [2019] KEHC 9870 (KLR), are cited, to make the point that certiorari is about quashing a decision which is ultra vires, and that is about investigating whether a decision is made under a legal power or legal authority. There is also the point that certiorari would not issue as a matter of right, but that it is discretionary, issuing only for compelling reasons, and may be refused even where the requisite grounds for its grant exist or are established. It is submitted that no aspect of illegality, irrationality or procedural impropriety has been demonstrated, to warrant the making of a certiorari order, with respect to the decision of the 1st respondent.
36. Regarding prohibition, Kimani vs. Director of Public Prosecutions & 3 others [2024] KEHC 3269 (KLR) and Republic vs. Principal Kadhi, Mombasa, Ex parte Alibhai Adamali Dar & 2 others, Murtaza Turabali Patel (Interested Party) [2022] eKLR [2022] KEELC 371 (KLR), are cited, for the point that prohibition is about assumption of unlawful or excess jurisdiction. It issues, it is argued, to prohibit or forbid encroachment into jurisdiction, and to prevent implementation of orders issued when there is lack of jurisdiction. It is submitted that certiorari go together with prohibition, and the prohibition order issues to restrain enforcement of a quashed decision. It is argued that, as certiorari should not issue herein, in the first place, for the impugned decision is legally sound and procedurally fair, the order of prohibition would not be available.
37. On costs, it is argued that, following section 27(1) of the Civil Procedure Act, Cap. 21, Laws
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2. The certiorari order is sought to quash the decision in PPARB Application No. 57 of 2026, which upheld the preliminary objections raised by the 2nd, 3rd and 4th respondents, dated 22nd April 2026 and 27th April 2026, respectively, striking out the Request for Review, filed by the applicant, dated 21st April 2026, for want of jurisdiction, and ordering the 2nd and 3rd respondents to proceed with the procurement process, in Tender No. KPI/9A.3/OT/18/25-26, for supply of and delivery of off grid power stations (consignment stocking). The reliefs sought, in PPARB Application No. 57 of 2026, were for annulment of the decision by the 2nd respondent, communicated in a letter of intention to award, dated 2nd April 2026, that the bid by the applicant, in Tender No. KPI/9A.3/OT/18/25-26 was unsuccessful and that the successful bidder was the 4th respondent; that the said tender, Tender No. KPI/9A.3/OT/18/25-26, be re-evaluated and awarded to the applicant.
3. The grounds, upon which the Originating Motion is premised, are set out on the face of the application. It is averred that the applicant was 1 of 3 successful bidders for Tender No. KPI/9A.3/OT/18/25-26, and the applicant had filed the Request for Review in PPARB Application No. 57 of 2026; the 1st respondent did not conduct a merit-based inquiry, on that Request for Review, but instead elevated it to an inquiry on jurisdiction, and struck out the Request for Review, notwithstanding unrebuttable representations, that the evaluation of the bid did not follow the criteria set out in the tender documents; the applicant spoke to the damage and loss occasioned by the evaluation process, that was in breach of the requirements set out in the tender document, the Constitution and the Public Procurement and Asset Disposal Act, Cap. 412C, Laws of Kenya; and the notification of award, dated 2nd April 2026, spoke to an alien evaluation criterion called “competitive price”, rather than the “lowest evaluation tender” bid.
4. It is averred that the 2nd respondent had advertised Tender No. KPI/9A.3/OT/18/25-26, for supply and delivery of off grid power stations (consignment stocking), for 24 months. The wording of that tender, it is further averred, envisaged that the successful bid would be substantially responsive and the lowest evaluated price; substantial responsiveness as opposed to mere responsiveness; technical ability, by the tenderer, to execute the contractual obligation under the tender; the right, on the part of the 2nd respondent, to seek information and additional documents from the tenderer; and compliance with constitutional, statutory and contractual obligations on matters relating to the evaluation.
5. It is further averred that the applicant submitted a tender, which met the requirements of the tender specifications, and complied with sections 77(3) and 79(1) of the Public Procurement and Asset Disposal Act. However, despite the bid being responsive, the 2nd respondent, without any colour or justification, concluded that the bid was unsuccessful, on the basis that the price was not competitive, and awarded the tender to the 4th respondent, who had submitted the third lowest total tender price. It is averred that the notification revealed that the evaluation of the bid, by the applicant, was not in accordance with the tender, particularly clauses 33, 38 and 40.1 thereof, which envisaged the successful tender as the lowest evaluated tender bid, and not the competitive price. It is averred that that was contrary to the tender document and the evaluation criteria set in clauses 33 and 38 and section III clause 2.2, as competitive price was not a criterion under the tender. It is suggested that there was no just and lawful evaluation of the bids that were before the 2nd respondent.
6. It is asserted that the applicant had the best technical capacity, to discharge the contractual obligations under the tender, which criteria was the most material for the evaluation of the said tender, and which was not taken into consideration, and the applicant, being the current supplier, shall suffer loss and damage.
7. It is averred that section 80 of the Public Procurement and Asset Disposal Act and Regulation 16(5) of the Public Procurement and Asset Disposal Regulations, 2006, impose an obligation for evaluation of tenders in accordance with the evaluation criteria, and the procedures set out under the tender document, and, therefore, the taking into account irrelevant factors, in evaluating the bid, submitted by the applicant, the 2nd respondent deviated from the purpose and objectives in the Public Procurement and Asset Disposal Act and the Public Procurement and Asset Disposal Regulations, and violated the provisions of Articles 10 and 227 of the Constitution, section 88 of the Public Procurement and Asset Disposal Act and Regulations 29, 30, 75, 76 and 77 of the Public Procurement and Asset Disposal Regulations.
8. It is argued that Articles 47 and 227 of the Constitution, read together with section 4 of the Fair Administrative Action Act, Cap. 7L, Laws of Kenya, guarantee the right to administrative action which is fair, reasonable, lawful and efficient, and it is submitted that those provisions were contravened, when the 2nd respondent found that the bid by the applicant was not price competitive, notwithstanding that the bid by the 4th respondent was the third lowest and not technically responsive. It is asserted that the 4th respondent would not have been the successful bidder, had the 2nd and 3rd respondents applied themselves constitutionally, lawfully and contractually.
9. The supporting affidavit is sworn by Mr. Martin Kiarie, the head of sales with the applicant, on 26th May 2026. The contents of the affidavit largely regurgitate the substance of the grounds on the face of the application.
10. Several documents are exhibited to the supporting affidavit. There is a copy of the advertisement for the tender and the tender. There is a copy of the notification of intention to award tender, dated 2nd April 2026. There is a copy of a self-declaration, which should show, according to the applicant, that the 4th respondent had no capacity to meet the tender requirement, and could not have made a responsive bid. There is a copy of the Request for Review, by the applicant, dated 21st April 2026, together with the affidavits and the annextures supporting it. There are copies of the preliminary objections raised by the 2nd, 3rd and 4th respondents, dated 22nd April 2026 and 27th April 2026. There is a copy of the decision of the 1st respondent, in PPARB Application No. 57 of 2026, dated 12th May 2026. The final document is a notification of the award, dated 2nd December 2022, with respect to a previous tender, where the applicant was the successful bidder.
11. The Originating Motion was placed before me, on 26th May 2026, under certificate of urgency, and I gave directions, with respect to service, and filing of responses. I also granted temporary relief, in terms of prayer 2 of the Originating Motion.
12. Upon being served with the Originating Motion, the respondents have filed notices of appointments of their respective Advocates, and have responded to the application, by way of replying affidavits.
13. The reaction to the Originating Motion, by the 1st respondent, took the form of an affidavit in reply, sworn by Mr. Philemon Kiprop, the Secretary to the 1st respondent, dated 5th June 2026. It is averred that the application, by way of Originating Motion, is an appeal, disguised as an application for judicial review, of the decision of the 1st respondent, of 12th May 2026, in PPARB Application No. 57 of 2026, and the court is urged to decline to allow it, on grounds of want of jurisdiction to determine an appeal against the said decision. It is asserted that the decision of the 1st respondent, was premised on section 167(1) of the Public Procurement and Asset Disposal Act, and on the finding and holding that the applicant had failed to expressly plead or claim, in its Request for Review, that had suffered or was likely to suffer loss or damage, due to an alleged breach of duty imposed on the 2nd and 3rd respondents by the Public Procurement and Asset Disposal Act. It is further averred that the applicant sought, through a further affidavit and written submissions, to cure the omission or defect to make that pleading, but the 1st respondent ruled that an affidavit is not a pleading, and it cannot be used to cure a deficiency in a pleading, without amending the pleading itself. It is averred that the 1st respondent properly found and held that the applicant lacked standing to seek administrative review, for failure to plead that it had suffered or risked suffering loss or damage, due to a duty imposed on the 2nd and 3rd respondents, by the Public Procurement and Asset Disposal Act, and the 1st respondent itself, on account of that, lacked jurisdiction to hear and determine the Request for Review.
14. The reply, to the Originating Motion, by the 2nd and 3rd respondents, is vide an affidavit that Mr. Dennis Maanzo, a legal officer of the 2nd respondent, swore on 3rd June 2026. It is averred that the decision of the 1st respondent was fair, lawful, sound, reasonable and took into account all the relevant facts and the law, and that no illegality, error of law or unreasonableness is demonstrated. It is averred that the 2nd and 3rd respondents raised a preliminary objection to the Request for Review, filed in PPARB Application No. 57 of 2026, dated 12th May 2026, premised on section 167(1) of the Public Procurement and Asset Disposal Act, arguing that loss or damage suffered by an unsuccessful bidder, is a prerequisite for lodge of a Request for Review, and it must be pleaded, for jurisdiction to be invoked. It is argued that the 1st respondent appreciated the requirements of section 167(1), and found and held that a party seeking review by it, must plead suffering loss or damage, or a risk of such suffering, due to a breach of duty imposed on a procuring entity by the Public Procurement and Asset Disposal Act and the Regulations made under it. It is averred that the 1st respondent found and held that the applicant did not plead any loss or damage, arising from a breach of a duty, on the part of the 2nd and 3rd respondents, a duty imposed on them by the Public Procurement and Asset Disposal Act. It is also averred that the tendering process was carried out substantially in compliance with the tender documents, the Public Procurement and Asset Disposal Act, the Public Procurement and Asset Disposal Regulations 2020 and the Constitution.
15. A number of copies of documents are attached to the replying affidavit. There is a copy of the Memorandum of Response to the Request for Review, which the 2nd and 3rd respondents filed in PPARB Application No. 57 of 2026, dated 22nd April 2026. A copy of the notice of preliminary objection, dated 22nd April 2026, which was also filed, by the 2nd and 3rd respondents, in PPARB Application No. 57 of 2026. A copy of the written submissions, that the 2nd and 3rd respondents filed in PPARB Application No. 57 of 2026, dated 4th May 2026, is also annexed.
16. The reply, by the 4th respondent, is vide an affidavit, sworn by its Executive Director, Mr. Joseph Chebungei Kiptoo, on 5th June 2026. It is averred that the 4th respondent was notified, by a letter, dated 2nd April 2026, that its bid was successful. The applicant was aggrieved, and lodged a Request for Review, with the 1st respondent, filed in PPARB Application No. 57 of 2026. The 4th respondent filed a reply to the Request for Review, and raised a preliminary objection. The preliminary objection turned on the Request for Review not being premised on section 167(1) of the Public Procurement and Asset Disposal Act, hence the 1st respondent lacked jurisdiction to entertain it. The 1st respondent ruled in favour of the 4th respondent. It is asserted that that decision, of the 1st respondent, was rational, lawful, procedurally fair and within statutory mandate. The 4th respondent asserts that only a bidder, who claims to have had suffered or risked suffering loss or damage due to alleged breach of duty, imposed on a procuring entity, may invoke the jurisdiction of the 1st respondent. It is argued that that is mandatory, under section 167(1) of the Act, and that the failure to invoke it was fatal.
17. The 4th respondent has placed on record some documents to support its case. There is the letter of 2nd April 2026, awarding the tender. There is a copy of the affidavit the 4th respondent filed in PPARB Application No. 57 of 2026. There is also a copy of the notice of the preliminary objection that it raised in PPARB Application No. 57 of 2026. There is also a copy of the written submissions that it filed in PPARB Application No. 57 of 2026.
18. Directions, on disposal of the Originating Motion, were given on 8th June 2026, for canvassing by way of written submissions, to be filed and exchanged within 14 days. Judgement was fixed for 6th July 2026 at 2.00 PM.
19. The parties complied, by filing their respective written submissions. The applicant filed a set of written submissions, dated 15th June 2026 and 25th June 2026. The written submissions, by the 1st respondent, are dated 23rd June 2026. The written submissions, by the 2nd and 3rd respondents, are dated 22nd June 2026. The written submissions, by the 4th respondents, are dated 22nd June 2026.
20. The applicant filed 2 pieces of written submissions. The first being the main submissions, and the second comprising of supplementary submissions, reacting to the submissions made by the other parties. I shall narrate the main submissions first, and advert to the supplementary submissions after I have narrated the submissions filed by the other parties.
21. In the main submissions, the applicant identifies 2 issues for determination. The first issue revolves around whether the applicant failed to satisfy the requirements of section 167(1) of the Public Procurement and Asset Disposal Act, and the second is about whether the applicant is entitled to the reliefs that it has sought. It has submitted around locus standi and jurisdiction; the construction that ought to be given to section 167(1) of the Public Procurement and Asset Disposal Act; the place of Article 159(2) of the Constitution in the construction of section 167(1) of the Public Procurement and Asset Disposal Act; and striking out of pleadings.
22. On locus standi and jurisdiction, it is argued that the 1st respondent went wrong in conflating between locus standi and jurisdiction. The issue raised, with respect to section 167(1) of the Public Procurement and Asset Disposal Act, it is argued, turned on jurisdiction, not locus standi, for the applicant had locus standi to seek review, for it had been party to the tendering process, and, as an unsuccessful bidder, it was entitled to challenge the outcome and process of the evaluation of the tender. The decisions, in Khelef Khalif El-Busaidy vs. Commissioner of Lands & 2 others [2002] eKLR [2002] KEHC 1117 (KLR) and Republic vs. Public Procurement Administrative Review Board; Samno Company Limited & another (Interested Parties) Ex parte Ministry of Defence & another [2019] eKLR [2019] KEHC 775 (KLR), are cited.
23. On the construction that ought to be given to section 167(1) of the Public Procurement and Asset Disposal Act, it is argued that the 1st respondent misdirected itself, when it imposed a requirement that is not expressly provided for under the Public Procurement and Asset Disposal Act and the Public Procurement and Asset Disposal Regulations. It is argued that the proper approach to the matter ought to have been that adopted in Republic vs. Public Procurement Administrative Review Board; Accounting Officer, Kenya Electricity Generating Company PLC & 2 others (Interested Parties); Sinopec International Petroleum Services Corporation (Ex parte) [2024] KEHC 16676 (KLR) and PPARB No. 143 of 2020 Maverick Digital Limited vs. The Accounting Officer, Kenya Ports Authority & another and Zocom Limited & 8 others. It is submitted that the applicant had filed affidavits, which dwelt on the loss or damage that section 167(1) of the Public Procurement and Asset Disposal Act envisages, yet, the said affidavits were ignored, despite not being struck out. Cecil Miller vs. Jackson Njeru & another [2017] eKLR [2017] KEHC 1499 (KLR) and HC Judicial Review Miscellaneous Application No. E039 of 2022 (Republic vs. Public Procurement Administrative Review Board and CIC Group Insurance & another) are cited in support.
24. On the place of Article 159(2) of the Constitution, in the construction of section 167(1) of the Public Procurement and Asset Disposal Act, it is submitted that Article 159(2) of the Constitution requires justice to be administered without undue regard to technicalities of procedure, for justice to be done to all. The applicant cites several decisions were the courts discourage the striking out of pleadings, asserting that that approach is drastic and draconian, to be employed only as a last resort, where the pleadings cannot be cured by way of amendment. The decisions cited include Mwahima Mwalimu Masudi vs. Independent Electoral and Boundaries Commission & 3 others [2017] KEHC 2259 (KLR), Nicholas Kiptoo Arap Salat vs. Independent Electoral and Boundaries Commission & 6 others [2013] eKLR [2013] KECA 113 (KLR), James Mang’eli Musoo vs. Ezeetec Limited [2014] KEELRC 761 (KLR) and DT Dobie & Company (Kenya) Limited vs. Joseph Mbaria Muchina & another [1980] eKLR [1980] KECA 3 (KLR).
25. In its written submissions, the 1st respondent has addressed issues around jurisdiction, and the threshold for grant of judicial review orders. On jurisdiction, it is submitted that section 173 of the Public Procurement and Asset Disposal Act specifies the nature of the orders that the 1st respondent may make, which include annulment of the procurement or disposal process, give directions to the accounting officer for something to be done or redone in the procurement or disposal process, substitute the decision of the 1st respondent with that of the accounting officer, order payment of costs between the parties to the review, and order termination of the procurement process and commencement of a new procurement process. It is argued that the orders made by the 1st respondent were in line with what is expected of it, under section 173 of the Public Procurement and Asset Disposal Act.
26. Secondly, the 1st respondent submits that the purpose of judicial review is to ensure that a party receives fair treatment in the hands of public bodies. Seventh Day Adventist Church (East Africa) Limited vs. Permanent Secretary, Ministry of Nairobi Metropolitan Development & another [2014] eKLR [2014] KEHC 7601 (KLR) is cited. It is asserted that the purpose of judicial review is not to ensure that the public body reaches a conclusion which is correct in the eyes of the court. Republic vs. Kenya Revenue Authority Ex parte Yaya Towers Limited [2008] eKLR [2008] KEHC 489 (KLR) is cited in support. It is submitted that the judicial review process is not akin to an appeal, and the court, seized of a judicial review matter, is not empowered to venture into correcting the decisions of the 1st respondent, on the merits, for it is the work of the 1st respondent to look into the merits. Republic v Kenya Revenue Authority & another Ex-Parte Bear Afric (K) Limited [2013] KEHC 2095 (KLR), Republic vs. Commissioner of Customs Services ex parte Africa K-Link International Limited [2012] eKLR [2012] KEHC 1274 (KLR) and Kenya Pipeline Company Limited vs. Hyosung Ebara Company Limited & 2 others [2012] eKLR [2012] KECA 104 (KLR) are cited.
27. The criteria to be employed, to evaluate whether judicial review orders are available, should be illegality, impropriety of procedure and irrationality, it is argued, based on Re Bivac International SA (Bureau Veritas) [2005] 2 EA 43 and Pastoli vs. Kabale District Local Government Council & others [2008] 2 EA 300. It is submitted that it would be upon the party, seeking judicial review, to establish breach of any of the criteria above.
28. It is submitted that where an applicant alleges that the tribunal had made an error of law, it must be demonstrated that there was, indeed, a mistake that goes to jurisdiction of the tribunal. However, it is argued, a misinterpretation of the law is not a sufficient reason to move the court for judicial review orders. It is argued that the instant proceedings are an appeal disguised as a judicial review application, and the same should not be entertained. It is submitted that there is a clear distinction between appeal and judicial review, where judicial review only focuses on the fairness of the process, under which the impugned decision or action was arrived at. The court, seized of a judicial review matter should focus only on that, and should not consider the merits of the decision, for reviewing a decision on merits would be tantamount to usurping the power of the tribunal. Municipal Council of Mombasa vs. Republic & another [2002] eKLR [2002] KECA 8 (KLR), Republic vs. Kenya Power & Lighting Company Limited & another [2013] eKLR, Mureithi & 2 others (All suing for and on behalf of Mbari-Ya Murathimi Clan) v Attorney General & 5 others [2006] eKLR [2006] KEHC 3488 (KLR), Republic of Kenya vs. University of Nairobi [2002] 2 EA 572, Okiya Omtatah Okoiti vs. Kenya Revenue Authority & 2 others [2016] eKLR [2016] KEHC 7693 (KLR) and Republic vs. Cabinet Secretary, Ministry of Interior and Coordination of National Government & 2 others ex parte Patricia Olga Howson [2013] eKLR [2013] KEHC 676 (KLR) are cited.
29. The 2nd and 3rd respondents submit on whether the applicant pleaded that it suffered or risked suffering loss or damage, as a result of an alleged breach of the law, by the 2nd respondent, in its quest for review; illegality, irrationality and procedural impropriety; threshold for grant of the orders sought; and costs.
30. On whether the applicant pleaded that it suffered or risked suffering loss or damage, as a result of an alleged breach of a duty imposed by law, by the 2nd respondent, in its quest for review, it is submitted that there is no contestation, that the Request for Review did not carry a pleading, to establish that the applicant suffered or risked suffering loss or damage, due to breach of a duty imposed on the 2nd respondent, by the Public Procurement and Asset Disposal Act.
31. On illegality, irrationality, and procedural impropriety, it is submitted that, notwithstanding section 7(2) of the Fair Administrative Action Act, judicial review is anchored on these 3 pillars. It is submitted that, beyond the averment that the decision was tainted by illegality, none of the grounds on which it is premised point to any form of illegality. Municipal Council of Mombasa vs. Republic & another [2002] eKLR[2002] KECA 8 (KLR), Judges and Magistrates Vetting Board vs. Centre for Human Rights and Democracy [2014] eKLR [2014] KESC 9 (KLR) and Republic vs. Kenya Bureau of Standards & 2 others Ex parte Gladys Nyawira Wanjohi [2014] KEHC 7666 (KLR) are cited, for emphasis that a court seized of judicial review proceedings, only focuses on the lawfulness of the decision, on account of legality rationality and reasonableness, but not on the merits of the decision. It is submitted that whereas judicial review is on the lawfulness of the decision, appeal is on the merits of the decision.
32. On illegality, Republic vs. Public Procurement Administrative Review Board & 2 others Ex parte Rongo University [2018] eKLR [2018] KEHC 9643 (KLR), is cited, where illegality is identified as the contravention or exceeding of the terms of the power which authorises the making of the decision, pursuit of an objectives other than that for which the power to make the decision is conferred, the decision is not authorised by any power and it contravenes or fails to implement public duty. It is submitted that the applicant asserts that the decision was tainted by error of law, by the finding that the review application did not satisfy section 167(1) of the Public Procurement and Asset Disposal Act. It is pointed out, that under section 167(1) of the Public Procurement and Asset Disposal Act, the party who may lawfully seek review of a decision of the 1st respondent, or invoke its jurisdiction, would be one who participated in the procurement process, either as a bidder or as tenderer, and should allege that they suffered or risked suffering loss or damage, as a result of breach of the law, by the procuring entity. It is asserted that pleading loss or damage, or risk of loss or damage, on account of a breach of the law by the 2nd respondent, is a prerequisite for any party filing a Request for Review, which must be pleaded, for jurisdiction to be properly invoked, under section 167(1) of the Public Procurement and Asset Disposal Act. It is argued that the applicant did not plead loss or damage, or risk of the same, on account of a breach of the law by the 2nd respondent; neither was the same established or demonstrated.
33. It is asserted that the 1st respondent noted the contents of section 167(1) of the Public Procurement and Asset Disposal Act, and appreciated that for a party to invoke the jurisdiction, it must claim to have suffered that which is set out in that provision. It is also submitted that the 1st respondent appreciated the law and the jurisprudence, on the requirement for a candidate or tenderer to plead suffering loss or damage, or the risk of suffering the same, due to such breach. The decisions, in James Oyondi t/a Betoyo Contractors & another vs. Alroba Enterprises & another [2019] eKLR [2019] KECA 916 (KLR); Republic vs. Public Procurement Administrative Review Board & 2 others, Mfi Document Solutions Limited (Interested Party), Mal-Mart Enterprises Limited (Ex parte) [2024] KEHC 9582 (KLR); Space Contractors & Suppliers Investments Limited vs. Public Procurement Administrative Review Board & 23 others [2023] KECA 1457 (KLR) and Milimani HCJRMISC/E069/2025: Peesam Limited vs. KPLC & 6 others, are cited in support. It is averred that the 1st respondent properly found that there was no locus standi to bring the proceedings, and that the same was not subsequently cured by the filing of a reply to Request for Review and the affidavits subsequently filed.
34. On irrationality and procedural impropriety, the decisions in Republic vs. Public Procurement Administrative Review Board Ex parte Intertek International Limited, Accounting Officer Kenya Bureau of Standards & 6 others (Interested Parties) [2022] eKLR [2022] KEHC 1175 (KLR), Pastoli vs. Kabale District Local Government Council & others [2008] 2 EA 300 and Republic v District Land Adjudication and Settlement Officer Maara Sub- County & 3 others; Kiririka (Interested Party); Ragwa (Ex parte) [2021] eKLR [2021] KEELC 338 (KLR), are cited, on what constitutes those 2, being gross unreasonableness which no reasonable authority, properly addressing its mind to the law and facts before it could make such a decision, for the decision would defy logic and acceptable moral standards; and failure to act fairly, by way of non-observance of rules of natural justice, or failure to follow the laid down procedural rules, expressed in the applicable statute. It is argued that the applicant did not plead irrationality and procedural impropriety, as grounds for the review sought.
35. On whether the application meets the threshold for grant of the orders sought, for certiorari, Paul Kiplagat Birgen & 25 others vs. Independent Electoral and Boundaries Commission & 2 others [2011] eKLR [2011] KEHC 1246 (KLR) and Republic vs. Public Procurement Administrative Review Board, Shenzhen Instrument Co. Limited & another (Interested Party) Ex parte Kenya Power & Lighting Company Limited [2019] eKLR [2019] KEHC 9870 (KLR), are cited, to make the point that certiorari is about quashing a decision which is ultra vires, and that is about investigating whether a decision is made under a legal power or legal authority. There is also the point that certiorari would not issue as a matter of right, but that it is discretionary, issuing only for compelling reasons, and may be refused even where the requisite grounds for its grant exist or are established. It is submitted that no aspect of illegality, irrationality or procedural impropriety has been demonstrated, to warrant the making of a certiorari order, with respect to the decision of the 1st respondent.
36. Regarding prohibition, Kimani vs. Director of Public Prosecutions & 3 others [2024] KEHC 3269 (KLR) and Republic vs. Principal Kadhi, Mombasa, Ex parte Alibhai Adamali Dar & 2 others, Murtaza Turabali Patel (Interested Party) [2022] eKLR [2022] KEELC 371 (KLR), are cited, for the point that prohibition is about assumption of unlawful or excess jurisdiction. It issues, it is argued, to prohibit or forbid encroachment into jurisdiction, and to prevent implementation of orders issued when there is lack of jurisdiction. It is submitted that certiorari go together with prohibition, and the prohibition order issues to restrain enforcement of a quashed decision. It is argued that, as certiorari should not issue herein, in the first place, for the impugned decision is legally sound and procedurally fair, the order of prohibition would not be available.
37. On costs, it is argued that, following section 27(1) of the Civil Procedure Act, Cap. 21, Laws
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