Brief Background
1. The dispute herein arises from tender number KP1/9A.3/OT/12/23-24, TENDER FOR SUPPLY OF EMERGENCY RESTORATION TOWERS (ERTs) AND GALVANISED STEEL STRUCTURES FOR IMPLEMENTATION OF PREMIUM CUSTOMERS SCHEMES AND FOR VARIOUS PRIMARY AND SECONDARY SUBSTATIONS.
2. The subject tender was advertised in accordance with the law and a total 12 bidders submitted their tenders.
3. On 13th November 2023, the Ex parte Applicant submitted to the 1st Interested party a Tender for Supply of Emergency Restoration Towers (ERTs) and Galvanised Steel Structure for Implementation of Premium Customers Schemes and for Various Primary and Secondary substations.
4. On the 27th of March 2024, the 1st interested party, vide an email, furnished the ex-parte Applicant with a notification of intention to award. The said notification of intention to award stated the reasons as to why the ex-parte Applicant’s bid was disqualified.
5. The ex-parte applicant filed the Request for Review Application No. 31 of 2024, before the respondent herein, alleging that the 1st Interested Party had contravened various sections of the Public Procurement and Asset Disposal Act 2015, the Fair Administrative Action Act 2015, the Public Procurement and Asset Disposal Regulations 2020 and the Constitution of Kenya 2010.
6. The Respondent initially delivered its decision to the Request for Review Application No. 31 of 2024 on 02.05.2024, where it upheld the Preliminary objections raised by the Interested Parties herein, and found that it lacked jurisdiction to hear and determine the same as it deemed that the request for review had been filed outside the 14 days’ statutory timeline provided for under section 167 (1) of the PPADA 2015.
7. The ex-parte applicant, being dissatisfied with the aforementioned decision of the respondent, proceeded to this Honourable Court and filed Nairobi High Court Judicial Review Application Number E104 of 2024, which sought judicial review orders in the form of orders of certiorari, prohibition and mandamus.
8. The High Court in Nairobi High Court Judicial Review Application Number E104 of 2024, delivered its judgment on 28.6.2024, which referred the matter back to the respondent, for determination of Request for Review No. 31 of 2024 on its merits.
9. As per the High Court’s orders, the respondent set down request for review application number 31 of 2024 for re-hearing on 16.07.2024.
10. Following the aforementioned hearing, the respondent delivered its decision on 19.07.2024.
11. In its decision, the respondent dismissed the request for review and issued the following orders:
i. The Request for Review dated 9th April 2024 be and is hereby dismissed.
ii. The respondent (1st Interested party) be and is hereby directed to proceed with Tender No. KP1/9A.3/OT/12/23-24, for Supply of Emergency Restoration Towers (ERTs) and Galvanised Steel Structures for Implementation of Premium Customers Schemes and for Various Primary and Secondary Substations to its logical conclusion.
iii. Each Party shall bear its own costs in the Request for Review.
12. The ex-parte applicant, being dissatisfied with the aforementioned decision of the respondent, proceeded to this Honourable Court, seeking judicial review orders in the form of orders of certiorari, prohibition and mandamus.
13. Through the Application dated 5th August, 2024 The Applicant is seeking orders that :
1. Judicial review Order of Certiorari to remove to the High Court the Respondent’s proceedings in the Request for Review No. 31 of 2024 and the decision thereof dated 19th July, 2024 for the purposes of being quashed and remitting with directions to the Respondent.
2. Judicial review Order of Prohibition to prohibit the Interested Parties from entering into Contract for Supply of Emergency Restoration Towers (ERTs) and Galvanised Steel Structures for Implementation of Premium Customers Schemes and for Various Primary and Secondary Substations (Tender No. KP1/9A.3/OT/12/23-24).
3. Judicial review Order of Mandamus to compel the Respondent to direct the 1st Interested Party to re-admit the Ex Parte Applicant’s Tender for Supply of Emergency Restoration Towers (ERTs) and Galvanised Steel Structures for Implementation of Premium Customers Schemes and for Various Primary and Secondary Substations and subject it to technical evaluation excluding Form 3.2 - Historical Contract Default in performance and/or unresolved cases thereof.
4. Costs of the suit.
APPLICANT’S CASE;
14. The Ex Parte Applicant reiterates that this honorable court has supervisory jurisdiction under Article 22(1), 23(3)(f), 47(1), 48, 50(1), 159, 165(6)(7) and 258(1) of the Constitution of Kenya, 2010; the Fair Administrative Action Act, 2015;Section 8 and 9 of the Law Reform Act; and Order 53 of the Civil Procedure Rules, 2010 and Section 175(1) of the Public Procurement and Asset Disposal Act, 2015.
15. Reliance is placed in the case of Logbro Properties CC v Bedderson NO & Another 2003 (2) SA 460 (SCA the Supreme Court of Appeal of South Africa held that:
“[5] The starting point must be that the tender process constituted ‘administrative action’ under the Constitution. This entitled the appellant (and it does not matter in this case whether the interim or the 1996 Constitution applied) to a lawful and procedurally fair process and an outcome, where its rights were affected or threatened, justifiable in relation to the reasons given for it…
16. The Applicant is cognisant of the universally accepted general principle of public procurement that Tenders which do not meet the minimum eligibility and other mandatory requirements as stipulated in the Tender Document are regarded as non-responsive and are rejected without further consideration. This is the legal precinct under Section 79(1) of the Public Procurement and Asset Disposal Act, 2015 and Article 43(2)(c) of the UNCITRAL Model Law on Public Procurement A/66/17 of 1 July 2011).
17. It argues that Section 79(2) of the Public Procurement and Asset Disposal Act, 2015 and Article 43(2)(b) of the UNCITRAL Model Law on Public Procurement allow procuring entities to regard Tenders as responsive if they contain minor deviations that do not materially alter or depart from characteristics, terms, conditions and other requirements set out in the Tender Document or if it contains errors or oversights that can be corrected without touching on the substance of the tender.
18. The applicant refers to Administrative Law in South Africa, Juta,2012 at 295, where learned Cora Hoexter posits that: An otherwise unimpeachable tender may easily be disqualified at an early stage on a technicality, or organs of state may use defects ‘opportunistically to resile from otherwise unimpeachable contracts.
19. The Applicant possits that The Respondent was cognizant that the exceptions to the general principle were critical and necessary in the operationalization and effectuation of the constitutional principles of public procurement as set out in Article 201(d) and 227(1). In the support of this position The Applicant cites the case of Transcend Media Group Limited v Communications Authority of Kenya, Application No. 76 of 2018.
20. Section 81 and 82 of the Public Procurement and Asset Disposal Act, 2015 and Regulation 74(2) of the Public Procurement and Asset Disposal Regulations, 2020 are also referred to.
21. The Applicant also relies on the case of Metro Projects CC and Another v Klerksdorp Local Municipality and Others 2004 (1) SA 16 (SCA) ([2004] 1 All SA 504) the Supreme Court of Appeal of South Africa held that:
“It may in given circumstances be fair to ask a tenderer to explain an ambiguity in its tender; it may be fair to allow a tenderer to correct an obvious mistake; it may, particularly in a complex tender, be fair to ask for clarification or details required for its proper evaluation. Whatever is done may not cause the process to lose the attribute of fairness or, in the local government sphere, the attributes of transparency, competitiveness and cost- effectiveness.”
22. Reliance is also placed in the case of Chairperson, Standing Tender Committee v JFE Sapela Electronics (Pty) Ltd 2008 (2) SA 638 (SCA) where the Supreme Court of Appeal of South Africa held that:
“[28] Under the Constitution there is no reason to conflate procedure and merit. The proper approach is to establish, factually, whether an irregularity occurred. Then the irregularity must be legally evaluated to determine whether it amounts to a ground of review under PAJA. This legal evaluation must, where appropriate, take into account the materiality of any deviance from legal requirements, by linking the question of compliance to the purpose of the provision, before concluding that a review ground under PAJA has been established…
[30] Assessing the materiality of compliance with legal requirements in our administrative law is, fortunately, an exercise unencumbered by excessive formality. It was not always so. Formal distinctions were drawn between “mandatory” or “peremptory” provisions on the one hand and “directory” ones on the other, the former needing strict compliance on pain of non-validity, and the latter only substantial compliance or even non-compliance.
That strict mechanical approach has been discarded. Although a number of factors need to be considered in this kind of enquiry, the central element is to link the question of compliance to the purpose of the provision. In this court O’ Regan J succinctly put the question in ACDP v Electoral Commission as being “whether what the applicant did constituted compliance with the statutory provisions viewed in the light of their purpose”. This is not the same as asking whether compliance with the provisions will lead to a different result.
23. The Applicant also relies on the case of Beach Clean Services South Africa CC v The City of Cape Town and 2 Others case no 24190/2012 it was held that:
“[45] The Supreme Court of Appeal confirmed in a number of recent decisions that an organ of State should not adopt an overly formal or technical approach when considering whether tender conditions have been complied with, even when they are couched in ostensibly peremptory language. It should apply a system which is “fair, equitable, transparent, competitive and cost-effective” as envisaged by section 217(1) of the Constitution.
[49] In my view the City’s officials erred by failing to adhere to the principles laid down by the Supreme Court of Appeal in the judgments to which I referred above. They adopted a technical and formalistic approach to applicant’s tender instead of focusing on the substance of the matter, namely the application of the constitutional values referred to above. It would not have been difficult for the officials to direct queries to applicant in order to clarify the issues in question. They do not concern complicated issues. The conditions of tender make provision for queries in regard to items that were not clear…
[50] …There is no allegation that the defects in its tender (if there were indeed defects) were due to any mala fide conduct on [the applicant’s] part. No other tenderer would have been prejudiced if applicant had been afforded an opportunity to clarify the alleged defects. Nor would the integrity of the process have been implicated.
24. It is its case that The Respondent understood that there exists several general principles or approaches to the issue of the alleged non-compliance with mandatory requirements of the Tender Document.
25. The Applicant argues that the principle of “acceptable bid” is employed by the South African Preferential Procurement Policy Framework Act,2000 where it is defined as a bid which in all respects complies with the terms and conditions of the bid document and thus, “acceptability”, like “responsiveness” is a threshold requirement for the evaluation and award of Tenders.
26. It is urged that the concept of what constitutes an “acceptable bid” extends beyond mere compliance with Tender Document formalities.
27. The case of Chairperson, Standing Tender Committee v JFE Sapela Electronics (Pty) Ltd (supra) at para 14, is relied on where it was held that the determination of whether a bid ought to be regarded as “acceptable” should not be made solely with regard to compliance with formal bid requirements but must also be determined in light of the requirements of fairness, equity, transparency, competitiveness and cost effectiveness.
28. The Applicant argues that in the circumstances the Respondent was under a duty to ensure and determine that acceptability in the subject Tender involved not only a consideration of responsiveness to the Tender Document formalities but also compliance with the substantive constitutional requirements outlined in Article 201(d) and 227(1) of the Constitution of Kenya, 2010.
29. It is its case that consequently, a Tender which is perfectly responsive to the Tender Document formalities may nevertheless fail the test of “acceptability” in terms of the Public Procurement and Asset Disposal Act, 2015.
30. According to the Applicant, the Respondent and the 1st Interested Party ought to have carefully weighed up multiple factors through a process of fair minded reasoning, rather than the adoption of a narrow, rigid or pedantic approach.
31. Further that the legal consequences of non-compliance may vary depending on the purpose and materiality of the Tender Document requirement in question, the language thereof, and whether there was substantial compliance.
32. It is strongly persuaded that the Respondent failed to ascertain that the 1st Interested Party considered a matrix of factors when determining the consequence of non-compliance with Tender Document requirements.
33. It is its case further that the Respondent understood that there was the need for flexibility in the administrative decision making process on the one hand and the requirement for uniformity, predictability and impartial treatment of tenderers on the other. On the need for flexibility, the Applicant argues that the administrative law abhors a blind or rigid adherence to a fixed principle.
34. Reliance is placed in the case of Johannesburg Stock Exchange and Another v Witwatersrand Nigel Ltd and Another 1998 (2) SA 308 (A) 321.
35. It is the Applicant’s case that the rigid adherence to the fixed principle amounted to a fettering of discretion which was undesirable for the reason that it deprived the Ex Parte Applicant of the benefits of individualised discretionary decision making.
36. The Respondent is said to have failed to consider the factual nuances of the Ex Parte Applicant’s case to ensure that a proper measure of fairness was applied.
37. The principle of flexibility it is urged recognises that the duty to act fairly towards the Ex Parte Applicant’s Tender was ever flexible throughout the examination and evaluation process and therefore should not have been reduced to a predetermined formula.
38. With respect to the requirements of uniformity, the Applicant urges that the importance of insisting upon compliance with formal Tender Document requirements is recognised.
39. The case of Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs 2004 (4) SA 490 (CC) at para 57 is relied on, where the court stated that it is both permissible and desirable for administrative decision makers to apply general criteria in an even handed manner to ensure that the decision making process is fair and consistent.
40. It argues that The Respondent failed the test as it failed to apply its mind to the fact that the 1st Interested Party’s failed to apply Section 79(1) of the Public Procurement and Asset Disposal Act, 2015 to the 2nd Interested Party’s Tender.
41. According to The Applicant it was not disputed before the Respondent that the 1st Interested Party determined the 2nd Interested Party’s Tender as responsive in spite of the non-compliance with respect to whether Tower Solutions Inc. Canada and or Tower Solutions LLC USA are manufacturers of Emergency Restoration Towers (ERTs) and Galvanised Steel Structures for Implementation of Premium Customers Schemes.
42. It argues that the uneven treatment of the Ex Parte Applicant’s and the 2nd Interested Party’s Tenders by the 1st Interested Party was an unfair administrative action.
43. Reliance is placed in the persuasive case of Steenkamp NO v Provincial Tender Board, Eastern Cape 2007 (3) SA 121 (CC) at para 60 where the court stated that tender processes require “strict and equal compliance by all competing tenderers on the closing day for submission of tenders.”
44. Reliance is also placed in the case of AllPay Consolidated Investment Holdings (Pty) Ltd and others v Chief Executive Officer of the South African Social Security Agency and Others 2014 (1) BCLR 1 (CC), at para 27, where the Constitutional Court of South Africa emphasized the role which procedural requirements play in ensuring a fair tender process. The Court is said to have court reasoned that compliance with the Tender Document requirements is necessary (a) as a means of ensuring equal treatment of all tenderers, (b) to ensure fairness to participants in the bid process, (c) as a means of enhancing efficiency and optimality in the outcome, and (d) as a safeguard against a process skewed by corruption.
45. The Applicant further refers to the case of Allpay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer of the South African Social Security Agency and Others 2013 (2) SA 501 (SCA) where the Supreme Court of Appeal of South Africa drew a distinction between what it referred to as an “internal irregularity” and an “unlawful irregularity”.
46. The Applicant’s case is that, the former refers to non-compliance with the internal mandatory requirements of the 1st Interested Party such as form, whereas the latter refers to non-compliance with legislative prescripts such as Article 201(d) and 227(1) of the Constitution; Section 55(1) and 60 of the Public Procurement and Asset Disposal Act, 2015.
47. It is its case further that the import of the distinction between “internal irregularity” and “unlawful irregularity” is that non-compliance with the former would not have any legal consequences, whereas non-compliance with the latter invariably leads to invalidity.
48. According to the Applicant the dichotomy is given statutory credence by Section 82 of the Public Procurement and Asset Disposal Act, 2015 and Regulation 74(2) of the Public Procurement and Asset Disposal Regulations, 2020 which are unequivocal that it is only the tender price that is absolute and final and not be the subject of correction, revision, adjustment or amendment as errors thereof are considered as a major deviation that would have affected the substance of the Ex Parte Applicant’s Tender.
49. The Applicant also relies on the case of Halifax v England Paving and Contracting Limited, 2009 NSSC 224, where the court applied the substantial compliance standard and held that a low Tenderer’s failure to submit a pricing schedule, when the tender document called for a unit price contract, constituted a material non-compliance, and obliged the owner not to consider the bid.
50. It is its case that the Respondent and the 1st Interested Party took the view that under Section 79(1) of the Public Procurement and Asset Disposal Act, 2015, invalidity of a Tender did not depend on whether the instance of non-compliance related to the 1st Interested Party’s “internal” (mandatory requirements) as opposed to the legislative requirements (eligibility and technical requirements) as all these Tender Document requirements comprised the regulatory universe within which the 1st Interested Party was required to operate.
51. It is also its case that the greater the degree of rigidity in the decision making process, the greater the likelihood of a predetermined outcome which left no possibility of individualised fairness and justice for the Ex Parte Applicant’s Tender.
52. The Applicant argues that the Respondent is required by the Constitution of Kenya, 2010 and the Fair Administrative Action Act, 2015 to find an appropriate balance between uniform application of Section 79(1) of the Public Procurement and Asset Disposal Act, 2015 and the individualised fairness and justice that is provided for under Section 79(2), 80(2), 81 and 82 of the Public Procurement and Asset Disposal Act, 2015 and Regulation 74(2) and 75(2) of the Public Procurement and Asset Disposal Regulations, 2020; and ITT 26.1, ITT 27, ITT 28, ITT 29.1 and ITT 29.2 of the Tender Document.
53. The Applicant also advances his case through the fourth principle or approach being the procedure versus merit. The principle is that even the unmeritorious tenderers have a right to raise complaints that a procedural requirement was overlooked during the tender process. This is because the requirement of administrative justice focuses on the fairness of the process and not the correctness of the tender award. The Respondent and the 1st Interested Party are said to have therefore unfairly disqualified the Ex Parte Applicant’s Tender.
54. Reliance is placed in the case of AllPay Consolidated Investment Holdings (Pty) Ltd and others v Chief Executive Officer of the South African Social Security Agency and Others 2014 (1) BCLR 1 (CC).
55. The Applicant argues that under Section 79(2), 81 and 82 of the Public Procurement and Asset Disposal Act, 2015 and Regulation 74(2) and 75(2) of the Public Procurement and Asset Disposal Regulations,2020; and ITT 26.1, ITT 27, ITT 28, ITT 29.1 and ITT 29.2 of the Tender Document, it was clear to the Respondent and the 1st Interested Party that it was not in the public interest to invalidate the Ex Parte Applicant’s Tender because of the inconsequential alleged irregularity.
56. It the Applicant’s case that the court in AllPay Consolidated Investment Holdings (Pty) Ltd v Chief Executive SASSA (No 2) 2014 (6) BCLR 641 (CC) at para 19, held that:
“An irregularity is inconsequential when, on a hindsight assessment of the process, the successful bidder would likely still have been successful despite the presence of the irregularity.”
57. According to the Applicant, the inevitability of the outcome of the tender process ought not to have been taken into account as a factor when considering the validity of the administrative action under review. Consequently, the Respondent ought to have declared the disqualification of the Ex Parte Applicant’s Tender invalid notwithstanding that the tender outcome would be the same if the defect were to be corrected.
58. It is the Applicant’s case that the distinction between determining whether a reviewable irregularity had occurred and the selection of an appropriate remedy to address the irregularity ought not to have been conflated.
59. The Respondent is said to have failed to establish first, factually, whether an irregularity occurred in order to determine whether there was any deviation from Form 3.2. Secondly, the Respondent is said to have failed to assess the irregularity in order to determine whether it amounted to a ground of review under Article 47(1) of the Constitution of Kenya, 2010 and the Fair Administrative Action Act, 2015.
60. It argues that this approach entailed taking into account the materiality of the alleged deviation from Form 3.2.. Further that the degree of non-compliance ought to have been considered in light of the purpose of Form 3.2 that was not complied with and the question whether the purpose of Form 3.2 was substantively achieved despite the non-compliance. Thirdly that, if the administrative decision was found to be constitutionally and lawfully invalid, a just and equitable remedy ought to have been applied as the nature of administrative review remedy is influenced by the inconsequential irregularity, but it should not have served as an obstacle to administrative review.
61. The Respondent is said to have failed to set out the judicial approach between the flexible approach, the strict compliance, the substantial approach and the purposive approach that it took to before declining to exercise its mandate.
62. The Applicant also argues that the flexible approach, places emphasis on the substance rather than the form. Also, that it required the Respondent to place greater weight on those factors which are material to assessing the merits of the Ex Parte Applicant’s Tender as opposed to other factors of peripheral importance.
63. It is its case that the overarching principles of fairness, equity, transparency, competitiveness and cost effectiveness should have been afforded greater weight than concerns regarding formal compliance.
64. It argues that Section 79(2), 81 and 82 of the Public Procurement and Asset Disposal Act, 2015 and Regulation 74(2) and 75(2) of the Public Procurement and Asset Disposal Regulations, 2020 and ITT 26.1, ITT 27, ITT 28, ITT 29.1 and ITT 29.2 of the Tender Document permitted condonation of non-compliance with mandatory requirements in order to promote the public interest and if the condonation was granted by the 1st Interested Party in whose benefit the provision was enacted.
65. It is also The Applicant’s case that in determining whether the alleged Ex Parte Applicant’s non-compliance rendered its Tender unacceptable, the Respondent and the 1st Interested Party ought to have had regard to the purpose of Form 3.2.
66. The Applicant argues that in the Respondent’s opinion, this purpose was fulfilled as the Ex Parte Applicant had unequivocally confirmed that it had no unresolved cases and or pending litigation to state or disclose. Further that what was of paramount importance to the 1st Interested Party was that the Ex Parte Applicant had provided all the information that he required.
67. According to the Applicant the fact that Form 3.2 was not specifically answered in the negative was of lesser importance. The Respondent it is urged failed to determine that the 1st Interested Party acted unreasonably and in conflict with the Public Procurement and Asset Disposal Act, 2015 and the Fair Administrative Action Act, 2015.
68. Reliance is placed in the case of Minister of Social development v Phoenix Cash and Carry [2007] JOL 19529 (SCA), where the Supreme Court of Appeal of South Africa highlighted the dangers inherent in adopting an unduly rigid approach to the issue of responsiveness by emphasising that a process which places undue emphasis on form at the expense of substance could facilitate corruption by providing an excuse for officials to eliminate bidders based on administrative considerations as opposed to issues of substance, thus defeating the objectives of fairness, transparency, competitiveness and cost effectiveness.
69. The court it is urged called for a consideration of criteria which went to the heart of the Tender (that is to say matters which are essential to the evaluation of the merits of the Tender) as opposed to matters of peripheral importance.
70. The Applicant also relies on the case of VDZ Construction (Pty) Ltd v Makana Municipality and Others [2011] JOL 28061 (ECG) where only the first page provided by the bidder was original, the second page was a copy, the court found that an error had occurred during the collation of the bid submission which was inadvertent and condonable.
71. Furthermore, in the light of the fact that the applicant had submitted a very competitive price, the court held that condonation would have promoted the values of fairness, competitiveness and cost effectiveness, thus advancing public interest.
72. On strict compliance and substantive compliance approach, the Applicant refers to Paul Emanuelli, in his book Government Procurement, at ch. 6, synthesizes thoroughly the governing principles respecting the duty to reject non-compliant tenders. He posits that the two possibilities are strict compliance and substantial compliance. The latter compliance standard is said to allow the procuring entity a limited discretion to waive minor non-material irregularities in a Tender.
73. Reliance is also placed in case of British Columbia v SCI Engineers and Constructors Inc.,[1993] B.C.J. No. 248, where the British Columbia Court of Appeal set out three elements of the substantial compliance standard as:
i)A tender can contain simple omissions or irregularities, but remain capable of acceptance if it substantially complies with the tender call requirements.
ii)A tender may not meet the substantial compliance standard if a material fact has been omitted or if the meaning of the tender is unclear.
iii)In relying on a substantial compliance standard, mischief should be avoided and the integrity of the bidding process should be preserved.
74. Reliance is also placed in the case of Maritime Excavators (1994) Ltd. v Nova Scotia, [2000] N.S.J. No. 85, where the court held that the non-compliance in question must be material in order to constitute a non-compliant Tender incapable of acceptance. The court also held that non-compliance alone was insufficient and that the non-compliance had to be material. It is also urged that the onus of establishing that non-compliance was not material was on the owner.
75. It is its argument that the key question that the Respondent ought to have asked was whether what the Ex Parte Applicant did constituted compliance with the statutory provisions in view of their purpose. Thus, if the purpose of the Tender Document requirement was achieved despite the alleged non-compliance, the Ex Parte Applicant ought to have been regarded as sufficiently compliant and not be disqualified.
76. According to the Applicant the purposive approach is less formalistic as it focuses not on “mandatory” or “permissive” and focuses on whether the Form 3.2 in question was material (whether it served an important purpose) and whether that purpose was in fact achieved, despite the alleged imperfect compliance.
77. It argues that not only was it important for the Respondent and 1st Interested Party to enquire into whether the purpose of Form 3.2 was achieved, it was also important for them to enquire into whether Form 3.2 itself was material, that is to say, whether it served an essential purpose in the procurement process.
78. The Applicant also argues that as a general principle, non-compliance with Form 3.2 which was categorised in the Tender Document as mandatory but which did not serve a material purpose should not have been regarded as a fatal irregularity.
79. It is urged that the 1st Interested Party had powers to condone the alleged Ex Parte Applicant’s non-compliance to the extent that he had been given such powers by Section 79(2), 81 and 82 of the Public Procurement and Asset Disposal Act, 2015 and Regulation 74(2) and 75(2) of the Public Procurement and Asset Disposal Regulations, 2020 and ITT 26.1, ITT 27, ITT 28, ITT 29.1 and ITT 29.2 of the Tender Document.
80. It is its case that the deemed non-compliance ought to have been waived by the 1st Interested Party provided that no public interests were affected by the waiver based on the common law maxim quilibet potest runtiare juri pro se introducto (no man may renounce a right which his duty to the public and which the claims of society forbids the renunciation of). Thus, alleged non-compliance was waivable by the 1st Interested Party as such requirement existed purely for his benefit.
81. It argues strongly that the 2nd Interested Party ought not to have been afforded a preferential treatment that it was not legally entitled to and that the 1st Interested Party ought not to have disqualified the Ex Parte Applicant’s Tender irrespective of the degree of materiality of Form 3.2.
82. The Applicant’s case is that a process of fairness required that Tenders be assessed on their merits and not to be excluded for alleged relatively and minor breaches so as to give effect to the principles of fairness, equity, transparency, competitiveness and cost-effectiveness enshrined in Article 47(1),201(d) and 227(1) of the Constitution of Kenya, 2010.
83. According to the Applicant, The Respondent’s decision making process was unfair as it failed to enquire into the underlying objective and materiality of Form 3.2 in order to ascertain whether its purpose was in fact met despite the alleged less than perfect compliance.
84. The Applicant’s case is that a decision whether or not to exclude the Ex Parte Applicant’s Tender from the tendering process depended on factors that included the materiality of Form 3.2, the degree of noncompliance and the purpose of Form 3.2.
THE RESPONDENTS CASE;
85. The Respondent opposes the application and it is its case that at paragraphs 57 to 75 of its Decision of 19th July 2024 it considered the parties’ respective representations and found that the Ex-parte Applicant’s disqualification from the subject tender was in accordance with the Act, Regulations 2020 and the provisions of the Tender Document.
86. It is its case that the Tender Document in the subject tender required tenderers to Fill out a Form, Form 3.2 which contained the following interrogatories:
i. No unresolved cases in accordance with Section III, Evaluation and Qualification Criteria, (Yes/No)
ii. No pending litigation in accordance with Section III,
Evaluation and Qualification Criteria, (Yes/No).
87. The Tender Document equally provided a guide on how the above interrogatories were to be answered as follows:
“State any unresolved cases or pending litigation in accordance with Section III, Evaluation and Qualification Criteria, (if Yes above)”
88. It is argued that from, the Tender Document it was prescriptive that a “Yes” response to any of the above interrogatories would call for provision of details of the unresolved cases and pending litigation.
89. It is of the strong persuasion that the Respondent reviewed the Ex-parte Applicant’s Form 3.2 and the same was reproduced at paragraph 69 of the Respondent’s Decision.
90. Also, that from the reproduced Form 3.2 it is apparent that the Ex-parte Applicant improperly filled the Form since despite offering “Yes” responses to the interrogatories above, it did not provide any details of the unresolved cases or pending litigation.
91. According to the Respondent the proper filling of the Form 3.2 being a mandatory requirement under the Tender Document, the Respondent did not find fault in the Evaluation Committee’s disqualification from the subject tender on account of improper filling of the Form.
92. Further that under Section 79(1) of the Act, the Evaluation Committee of any Procuring Entity is required to evaluate tenders in accordance with the evaluation criteria set out in the Tender Document and the evaluation criteria set out in the Tender Document overrides any other criteria.
93. It is its case that Form 3.2, which formed part of the Tender Document was prescriptive on how the Form ought to have been filled and that any doubt as to how Form 3.2 was to be filled was clarified by the prescription on the Form that a “Yes” response to any of the interrogatories would be accompanied by details of any unresolved cases or pending litigation.
94. A challenge to the criteria as contained in the Tender Document by the Ex-parte Applicant ought to have been filed before the Respondent within the statutory timeframe of 14 days from the date the Ex-parte Applicant first accessed the Tender Document and in any event not later than 14 days after the tender submission deadline of 14th November 2023.
95. According to Respondent Section 67 of the Act prohibits unauthorized disclosure of confidential information which includes the contents of tenders submitted by tenderers in response to any invitation to tender. The Respondent offered an elaborate analysis of this at paragraphs 80 to 91 of its Decision.
96. The Respondent at paragraphs 92 to 98 of its Decision established that the Ex-parte Applicant had not discharged the evidential burden as to call for the Interested Parties herein to rebut its allegations on the qualifications of the 2nd Interested Party.
97. The Respondent is said to have taken guidance from the Judgment of the Court of Appeal in Civil Appeal No. E270 of 2022; CIC General Insurance Limited v Madison General Insurance Kenya Limited & Ors to the effect that it is only after an Applicant discharges the evidential burden that the rest of the parties are called upon to rebut the allegations by that Applicant.
98. The Respondent’s case is that in the present case, the Ex-parte Applicant failed to discharge the evidential burden on the 2nd Interested Party’s qualification and thus it could not be legally called to look in to the qualifications of the 2nd Interested Party.
99. The Respondent’s Decision it argued was not tainted by an error of law as it correctly applied the Constitution of Kenya, 2010, the Act, the Regulations and gave effect to the prescription under Form 3.2 of the Tender Document on how the interrogatories under the Form were to be answered.
100. Further that it correctly applied the Constitution of Kenya, 2010, the Act, the Regulations 2020 as the procurement process in the subject tender was open, transparent and accountable.
101. Reliance was placed in Civil Appeal No. E270 of 2022; CIC General Insurance Limited v Madison General Insurance Kenya Limited & Ors where the Court was categorical that only upon the discharge of the evidential burden by an Applicant is any other party called upon to rebut the allegation by the Applicant. The Respondent ranking lower than the Court of Appeal in the hierarchy of courts, the Respondent was bound to follow the reasoning of the appellate court.
102. The Respondent is said to have applied the guide provided for in Form 3.2 as to how the interrogatories in the said Form were to be answered. Based on the guide provided in the said Form, the Applicant improperly filled the Form.
103. The Respondent’s Decision of 19th July 2024 it is urged was reasonable, rational and lawful without overreaching the Respondent’s mandate and jurisdiction.
104. It is the Respondent’s case that the Ex Parte Applicant has failed to demonstrate any elements of illegality, irrationality, procedural impropriety and/or unfairness in the manner in which the Respondent considered and interrogated the evidence, documents, pleadings, and information before it in arriving at its Decision of 19th July 2024.
The 1st Interested Party’s case;
105. The 1st interested party opposes the application and it is its case that Judicial Review is concerned with the decision making process and not on the merits of the decision itself as it was expounded by the court in the case of Municipal Council of Mombasa Vs Republic & Umoja Consultants Ltd (2002) eKLR, where the Court of Appeal held that;
“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.”
106. It further relies on The High Court in Republic v Public Procurement Administrative Review Board & 2 others Ex-parte Rongo University [2018] eKLR to buttress the principles.
107. The Interested Party refers to Section 79(1) of the PPADA 2015 which provides that a tender is deemed as responsive if it conforms to all the eligibility and other mandatory requirements in the tender documents.
108. Further, section 80(2) of the act provides that evaluation and comparison of tenders shall be done using the procedures and criteria set out in the tender document.
109. It is its case that at paragraph 64 of its decision, the respondent aligned itself with the provisions of section 79(1) and 80(2) of the act and highlighted that the tender document is the key guide in the evaluation of tenders submitted in response to any tender invitation.
110. Section III Part I – Preliminary Evaluation Criteria Under Clause 28.2 of the ITT of the tender document, lists the mandatory requirements which form the Preliminary evaluation criteria. Requirement Number 12 made it a mandatory requirement to submit a duly filled Form 3.2.
111. According to the Interested Party as per the form, a tenderer was required to indicate YES or NO in response to the first two interrogatories. The third interrogatory required a bidder to state any unresolved cases or pending litigation, if the response to the first two interrogatories was “YES”.
112. In this case, the ex-parte applicant responded with “YES” to the first two interrogatories. As per the form, upon responding with “YES”, the ex-parte applicant was required to go ahead and state any unresolved cases or pending litigation. The applicant responded with “NONE” instead of stating any unresolved cases or pending litigation.
113. The ex-parte applicant did not state any unresolved cases or pending litigation, despite responding with “YES” to the first two interrogatories. Submission of a duly filed form 3.2 was a mandatory requirement as per the Preliminary Evaluation Criteria, and despite the fact that the ex-parte applicant submitted the form, the same was not duly filled as was required. As such, the ex-parte applicant’s tender did not comply with all of the mandatory requirements under the preliminary evaluation criteria of the tender document and was therefore disqualified accordingly. In its decision, the respondent under paragraphs 65 to 75, analyzed the relevant parts of the tender document vis-a-vis the instructions in the tender document, the evaluation criteria contained in the tender document and the form 3.2 submitted by the ex-parte applicant herein.
114. Further that under paragraph 72 of the decision, the respondent reiterated that the tender document is the primary guide in the subject tender and affirmed that the tender document offered guidance on how the “YES” and “NO” responses to the interrogatories were to be interpreted.
115. It is its case that the ex-parte applicant has failed to sufficiently demonstrate any element of illegality emanating from the Respondent’s decision.
116. It argues that in order to find out whether or not the decision of the respondent was tainted with irrationality, it places reliance in the case of Republic v Public Procurement Administrative Review Board Ex Parte Intertek International Limited; Accounting Officer, Kenya Bureau of Standards & 6 others (Interested Parties) [2022] eKLR, Justice A.K. Ndung’u cited the court as it then was in Pastoli v Kabale District Local Government Council and Others (2008) EA 300 as follows:
“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. It is, for example, illegality, where a Chief Administrative Officer of a District interdicts a public servant on the direction of the District Executive Committee, when the powers to do so are vested by law in the District Service Commission...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.”
117. It argues that the respondent’s decision was rational and reasonable since the respondent reiterated that the tender document is the primary guide in the subject tender and affirmed that the tender document offered guidance on how the “YES” and “NO” responses to the interrogatories were to be interpreted. Further that in line with this, the respondent found that the ex-parte applicant did not fill the form 3.2 as per the guidelines and instructions contained in the tender document. As such, it concluded that the ex-parte applicant’s disqualification from the subject tender was in line with the provisions of the Constitution of Kenya 2010, the PPADA 2015, the regulations 2020 and the tender document.
118. The Interested Party cites Republic v. The District Land Adjudication and Settlement Officer Maara Sub- County & 3 others; Ex parte Applicant: M’nyiri Ragwa; Njeru Kiririka (Interested Party) (2021) eKLR where the court highlighted thus;
“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 act 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.”
119. Article 47 of the Constitution of Kenya 2010 which provides for the Right to a fair Administrative Action is also relied on.
120. The High Court in Republic v Public Procurement Administrative Review Board; Shenzhen Instrument Co. Limited & another (Interested Party) Ex parte Kenya Power and Lighting Company Limited [2019] eKLR is said to have interpreted procedural fairness as espoused under the said Article.
121. It is the Interested Party’s case that The respondent acted fairly in its decision making as it observed the law and the criteria set out in the tender document.
122. It argues that the respondent’s decision herein has no element of illegality, irrationality or procedural impropriety. As such an order for certiorari should not issue.
123. Reliance is placed in the case of Kenya National Examination Council v Republic ex parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR, in regards to the issuance of an order of certiorari.
124. It also relies on the case of Republic V Public Procurement Administrative Review Board; Shenzhen Instrument Co. Limited & Another (Interested Party) Ex Parte Kenya Power and Lighting Company Limited [2019] eKLR.
125. On whether an order of prohibition should issue, reliance is placed in the case of Kimani v Director of Public Prosecutions & 3 others (Judicial Review Application E062 of 2023) [2024] KEHC 3269 (KLR) (Judicial Review) (3 April 2024) (Judgment).
126. Reliance is also placed in Republic v County Secretary,Narok County Government & another Ex parte SEC & M Company Limited [2022] eKLR, where the court pointed out the circumstance under which a judicial review order of mandamus is issued, as discussed in Republic v Kenya National Examinations Council Ex Parte Gathenji & 8 Others Civil Appeal No 234 of 1996.
127. It also argues that an order of mandamus cannot be granted in this instance as it is only applicable in situations where a tribunal or quasi-judicial entity has neglected to fulfil a statutory duty. It argues that the Applicant should shoulder the costs of the suit.
The 2nd Interested Party’s Case
128. The 2nd interested party opposes the application through the replying Affidavit of ERNEST KINGI GATERI.
129. It strongly believes that the impugned decision is legally sound and unassailable having been arrived upon due consideration of the facts and the law.
130. The Respondent in its decision issued on 19th July 2024 is said to have arrived at the conclusion that the Ex-Parte Applicant’s disqualification from the subject tender was in accordance with the Act, Regulations 2020 and provisions of the Tender Document, the same being captured at paragraphs 57 to 75 of its decision.
131. According to the 2nd Interested Party The Respondent having taken into account the Ex-Parte Applicant’s argument that its completion of the Form 3.2 was proper as it construed the interrogatories as per the English language dismissed the same finding that the Ex-Parte Applicant misconstrued the same. Further that in doing so the Respondent was guided by court decisions affirming that the tender document is the primary guide of the subject tender which in this case offered guidance on how the “Yes” and “No” interrogatories were to be interpreted which the Ex-Parte Applicant failed to heed to.
132. In response to the contents of paragraphs 25-28 of the Affidavit of Naomi Njoroge touching on the Ex-Parte Applicant’s challenge to the Respondent’s interpretation and application on Section 67 of Act in respect of the Ex-Parte Applicant’s knowledge of the 2nd Interested Party’s manufacturer’s authorization as well as details of the composition of the 1st Interested Party’s due diligence team which information by its very nature is confidential under section 67 of the Act.
133. It is the 2nd Interested Party’s case that Section 67 of the Act prohibits the disclosure of confidential information, including the content of tenders received in respect of a public procurement process and breach of the same attracts criminal sanctions, prohibition of concerned officials from working for government and even the debarment of tenderers involved in any such breach.
134. It is argued that the Ex-Parte Applicant’s knowledge of confidential information in respect of the 2nd Interested Party’s’ manufacturer as well as the composition of the 1st Interested Party’s due diligence team that visited the said manufacturer could only have been obtained by breach of the provisions of Section 67 of the Act.
135. According to the 2ndInterested Party The Respondent’s finding that the Ex-Parte Applicant had not discharged its burden of proof was founded on an elaborate analysis of the facts and the application of case law from the Court of Appeal in CIC General Insurance Limited v Madison General insurance Kenya Limited, PPARB. Lt Col (Rtd) BN Njiriani, the Accounting Officer (KEBS) that is binding upon it.
136. It is its case that no aspect of illegality, irrationality or procedural impropriety, in respect of the Respondent’s decision has been laid out by the Ex-Parte Applicant to warrant the orders sought being granted as such its application is devoid of merit.
ANALYSIS AND DETERMINATION
137. The following are the issues for determination;
i. Whether the applicant has made out a case for the grant of the orders sought.
ii. Whether the Applicant is entitled to costs.
Whether the applicant has made out a case for the grant of the orders sought.
138. In R v Public Procurement Administrative Review Board; Chief Executive Officer, Sacco Society Regulatory Authority & 2 others (Interested Parties); Nash EQ INC (Exparte) (Application E069 of 2024) [2024] KEHC 5107 (KLR) the court was guided by Lord Diplock in the English case of Council of Civil Service Unions v Minister for the Civil Service (1985) A.C. 374,410 as follows:
“By “illegality” as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable. ‘
By “irrationality” I mean what can by now be succinctly referred to as “Wednesbury unreasonableness” (Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 K.B. 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the court\'s exercise of this role, I think today it is no longer needed to resort to Viscount Radcliffe\'s ingenious explanation in Edwards v Bairstow [1956] A.C. 14 of irrationality as a ground for a court\'s reversal of a decision by ascribing it to an inferred though unidentifiable mistake of law by the decision-maker. “Irrationality” by now can stand upon its own feet as an accepted ground on which a decision may be attacked by judicial review.”
139. In the case of Republic v Public Procurement Administrative Review Board Ex Parte Intertek International Limited; Accounting Officer, Kenya Bureau of Standards & 6 others (Interested Parties) [2022] eKLR, Justice A.K. Ndung’u cited the court as it then was in Pastoli v Kabale District Local Government Council and Others (2008) EA 300 as follows:
“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. It is, for example, illegality, where a Chief Administrative Officer of a District interdicts a public servant on the direction of the District Executive Committee, when the powers to do so are vested by law in the District Service Commission...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.”
140. I have looked at paragraph 64 of the impugned decision as rendered by, the respondent and I am satisfied that the Respondent aligned itself with the provisions of section 79(1) and 80(2) of the act and highlighted that the tender document is the key guide in the evaluation of tenders submitted in response to any tender invitation.
141. Section III Part I – Preliminary Evaluation Criteria Under Clause 28.2 of the ITT of the tender document, lists the mandatory requirements which form the Preliminary evaluation criteria. Requirement Number 12 made it a mandatory requirement to submit a duly filled FORM 3.2.
142. Form 3.2 states the following verbatim:
Pending Cases and/or Litigation, in accordance with section III, evaluation and qualification criteria
o No unresolved cases in accordance with Section III, Evaluation and Qualification Criteria (YES/NO)
o No pending litigation in accordance with Section III, Evaluation and Qualification Criteria (YES/NO)
o State any unresolved cases or pending litigation in accordance with section III, Evaluation and Qualification Criteria, (if YES above).
143. As per the form, a tenderer was required to indicate YES or NO in response to the first two interrogatories. The third interrogatory required a bidder to state any unresolved cases or pending litigation, if the response to the first two interrogatories was “YES”.
144. In this case, the Ex Parte Applicant responded with “YES” to the first two interrogatories. As per the form, upon responding with “YES”, the Ex Parte Applicant was required to go ahead and state any unresolved cases or pending litigation.
145. The Applicant responded with “NONE” instead of stating any unresolved cases or pending litigation.
146. The Ex parte Applicant did not state any unresolved cases or pending litigation, despite responding with “YES” to the first two interrogatories.
147. Submission of a duly filed form 3.2 was a mandatory requirement as per the Preliminary Evaluation Criteria, and despite the fact that the Ex parte Applicant submitted the form, the same was not duly filled as was required. As such, the Applicant’s tender did not comply with all of the mandatory requirements under the preliminary evaluation criteria of the tender document and was therefore disqualified accordingly.
148. Under paragraph 72 of the decision, the respondent reiterated that the tender document is the primary guide in the subject tender and affirmed that the tender document offered guidance on how the “YES” and “NO” responses to the interrogatories were to be interpreted.
149. Section 79(1) of the PPADA 2015 provides that a tender is deemed as responsive if it conforms to all the eligibility and other mandatory requirements in the tender documents.
150. Further, section 80(2) of the act provides that evaluation and comparison of tenders shall be done using the procedures and criteria set out in the tender document.
151. A duly filled form 3.2 was a mandatory requirement under the preliminary evaluation criteria of the tender document.
152. Subjecting the faulty form 3.2 to the provisions of section 79(2) would have been enabling the Ex parte Applicant to side step a mandatory requirement in the preliminary evaluation criteria, which would in essence besmudge the whole evaluation process.
153. Section 79(1) of the PPADA 2015 states as follows verbatim, “A tender is responsive if it conforms to all the eligibility and other mandatory requirements in the tender documents”
154. For a tender to be considered responsive, then it has to conform with all the mandatory requirements of the evaluation criteria. Failure to comply with a mandatory requirement is a fatal omission which cannot be wished away as a minor deviation or error.
155. In Municipal Council of Mombasa Vs Republic & Umoja Consultants Ltd (2002) eKLR, the Court of Appeal held that;
“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.
156. The applicant’s case invited this court to carry out a merit analysis which I have refused to do. Issues of merit in the circumstances as presented in this case can only be attended to by the court of appeal.
157. Having so found, I am satisfied that The Respondent’s Decision was not tainted by an error of law as it correctly applied the Constitution of Kenya, 2010, the Act, the Regulations and gave effect to the prescription under Form 3.2 under the Tender Document on how the interrogatories under the Form were to be answered.
158. It is my finding and I so hold that the Respondent applied the Constitution of Kenya, 2010, the Act, the Regulations 2020 and I find no illegality, irregularity nor procedural impropriety as to warrant the issuance of the orders sought.
159. The Applicant has also sought orders of prohibition.
160. In Republic v Principal Kadhi, Mombasa Ex-parties Alibhai Adamali Dar & 2 others; Murtaza Turabali Patel (Interested Party) [20221 eKLR, the Court rendered itself thus:
“The Order of \"Prohibition\" issues where there are assumptions of unlawful jurisdiction or excess of jurisdiction. It\'s an order from the High Court directed to an inferior tribunal or body as in this case the Kadhi’s Court. Its functions is to prohibit and/or forbids encroachment into jurisdiction and further to prevent the implementation of orders issued when there is lack of jurisdiction.\"
\"Although prohibition was originally used to prevent tribunals from meddling with cases over which they had no jurisdiction, it was equally effective and equally often used, to prohibit the execution of some decision already taken but ultra vires. So long as the tribunal or administrative authority still had power to exercise as a consequence of the wrongful decision, the exercise of that power could be restrained by prohibition. Certiorari and prohibition frequently go hand in hand, as where certiorari is sought to quash the decision and prohibition to restrain its execution. But either remedy may be sought by itself.\"
161. It is my finding and I so hold that the issuance of prohibition orders as sought will serve no useful purpose given that this court has already made a finding that the Applicant did not prove that it is entitled to the orders of Certiorari.
162. The Respondent’s Decision of 19th July 2024 was reasonable, rational and lawful without overreaching the Respondent’s mandate and jurisdiction.
163. The Ex Parte Applicant has failed to demonstrate any elements of illegality, irrationality, procedural impropriety and/or unfairness in the manner in which the Respondent considered and interrogated the evidence, documents, pleadings, and information before it in arriving at its Decision of 19th July 2024.
164. The Court of Appeal while addressing its mind on the scope and efficacy of an Order of Mandamus in the case of Kenya National Examination Council vs Republic Ex Parte Geoffrey Gathenji Njoroge & Another stated as follows;
“The next issue we must deal with is this: What is the scope and efficacy of an ORDER OF MANDAMUS$1 Once again we turn to HALSBURY’S LAW OF ENGLAND, 4th Edition Volume 1 at page 111 FROM PARAGRAPH 89. That learned treatise says: -
“The order of mandamus is of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual.
“At paragraph 90 headed “the mandate” it is stated:
The order must command no more than the party against whom the application is made is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way.
“What do these principles mean$2 They mean that an order of mandamus will compel the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed.”
165. Having found that the Respondent acted within the law, the applicant is not entitled to an order of Mandamus and I so hold.
Costs;
166. The Applicant is not entitled to costs in this case. In arriving at this finding, this court is guided by the case of Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others Petition No. 4 of 2012 [2014] where the Court reiterated that costs follow the event.
Disposition;
The procurement process in the subject tender was open, transparent and accountable and the Applicant has failed to demonstrate or prove that the decision was arrived at contrary to the Constitution or the law and the orders sought cannot issue.
Order:
The Application dated 5th August, 2024 is dismissed with costs.