1. The Application that comes up for determination is the Originating Motion dated 16th January 2026 wherein the Applicant seeks the following orders;
1) Spent
2) THAT this Honorable Court be pleased to issue an order of CERTIORARI, to remove into the High Court and quash and/or set aside the Decision of the Public Procurement Administrative Review Board (the 1st Respondent) dated 9thJanuary 2026 (“the impugned decision”) issued upon re-hearing in Public Procurement Administrative Review Board Application No. 97 of 2025, Sintmond Group Limited vs The Accounting Officer Kenya Electricity Generating Company PLC, Kenya Electricity Generating Company PLC and JV of Munja Trading Limited & Marwil Energy Holding AS, in respect of Tender No. KGN- SALE005-2025 for Sale of Certified Emissions Reductions (Re-Tender) (“the Tender”).
3) THAT this Honorable Court be pleased to issue an order of CERTIORARI, to remove into the High Court and quash and/or set aside any award decision, Notification of Intention to Award Letter, Letter of Regret or any other award decision communication in respect to the Tender issued pursuant to the impugned decision of 1st Respondent in violation of Section 175 of the Public Procurement and Asset Disposal Act (hereinafter, “the Act”).
4) THAT this Honorable Court be pleased to issue an order of PROHIBITION, directed at the 2nd and 3rd Respondents, prohibiting them from implementing, acting upon or giving effect to the said Decision of the 1st Respondent dated 9thJanuary 2026.
5) THAT this Honourable Court be pleased to issue an order of MANDAMUS, compelling the 1st Respondent to consider the full findings of the Judgment of the High Court, Hon. Justice J. Chigiti (SC) in Judicial Review No. E351 of 2025 (“the Judgment”) in the re-hearing and provide clear directions to the 3rd Respondent on the re-evaluation of the Applicant at the due diligence stage in line with the provisions of the Tender Document and keeping in mind the Board’s findings on MR 16 in PPARB 90 of 2025.
6) In the alternative, and without prejudice to the foregoing, an order of MANDAMUS do issue compelling the 2nd and 3rd Respondent to conduct due diligence based on the Exparte Applicant’s bid, in full observance 1st Respondent’s findings in PPARB Application No. 90 of 2025 including but not limited to the disjunctive nature Mandatory Requirement 16 of the Tender, disregarding all extraneous issues and issues pending in litigation as covered in the Regret Letter of 29thSeptember 2025 and proceed to issue a Letter of Notification of Award in accordance to Sections 86 and 87 of the Act.
7) THAT in view of the protracted litigation in this matter and the unwillingness of the 1st, 2nd and 3rd Respondents to comply with the law and obey court orders and treat the Applicant fairly in these procurement proceedings, this Honourable Court be pleased to issue appropriate directions and further orders as it may deem fit to bring an end to the endless litigation while ensuring the Applicant is treated fairly.
8) THAT pending the hearing and determination of the substantive Originating Motion, that this Honorable Court be pleased to issue An Interim Order For Stay, to stay the Execution and/or Implementation of the Decision of the 1stRespondent dated 9th January 2026 in rehearing of Public Procurement Administrative Review Board Application No. 97 of 2025, Sintmond Group Limited vs The Accounting Officer Kenya Electricity Generating Company PLC, Kenya Electricity Generating Company PLC and JV of Munja Trading Limited & Marwil Energy Holding AS, in respect of the Tender.
9) THAT the Costs of these proceedings be awarded to the Ex-Parte Applicant.
10) Such other, further, incidental and/or alternative relief(s) as this Honourable Court may deem just and expedient.
The Applicant’s Case;
2. It is the Applicant's case that the issues in these proceedings are based on the tender issued by the 2nd and 3rd Respondents inviting bids in respect of Tender No. KGN-SALE-005-2025 for Sale of Certified Emissions Reductions (CERs) (Re-Tender), relating to the sale of CERS (commonly referred to as carbon credits).
3. Following an initial disqualification of the Applicant through a Regret Letter dated 1st August 2025, the Applicant filed PPARB Application No. 90 of 2025 before the Public Procurement Administrative Review Board, “the 1st Respondent” or “the Board”, which culminated in a Ruling dated 28th August 2025 in the Applicant’s favour, wherein the 1stRespondent made conclusive findings on the interpretation and Application of Mandatory Requirement No. 16 (MR-16).
4. It is the Applicant's case that in the said Ruling the Board expressly held that the use of the words “and/or” under MR-16 rendered the requirement disjunctive, such that a bidder could comply by providing either client references (the first part of MR 16) or evidence of previous CER/VER transactions (the second part of MR 16), or both.
5. The Board further held that the Applicant’s bid, which relied on evidence of previous transactions, fully satisfied MR-16, the second part, and that any insistence on client references constituted an extraneous and unlawful evaluation criterion.
6. The Board directed a re-evaluation strictly in accordance with the Tender Document, the law, and its findings, which findings were final and binding.
7. Following the re-evaluation of bids, the 3rd Respondent issued the Applicant with a second Regret Letter dated 29th September 2025 prompting the Applicant to file a second Request for Review - PPARB Application No. 97 of 2025 which culminated in a decision on 27th October 2925.
8. Being aggrieved by the findings of the Board, the Applicant moved the High Court in Judicial Review Application No. E351 of 2025.
9. The Applicant relies on all the documents and the pleadings filed by the Applicant in HCJR E351 of 2025.
10. By a Judgment delivered on 19th December 2025, the Honourable Court (Hon. Justice J. Chigiti, SC) quashed the Board’s decision and issued orders of Certiorari and Prohibition, finding amongst other findings, that:
a) The Board had misapplied and ignored its own binding findings in the Ruling of 28th August 2025;
b) The re-evaluation was not conducted in line with those findings; and
c) The Board had acted illegally in permitting re-litigation of settled issues.
11. The Court granted an order of certiorari to quash and set aside the entire decision of the Board and expressly remitted the matter back to the Board for re-hearing, to be conducted in compliance with the Judgment and within fourteen (14) days.
12. The 1st Respondent issued directions requesting the parties to file Submissions on the rehearing.
13. The hearing culminated in the impugned Ruling/Decision dated 9th January 2026, which decision is the subject of the present proceedings.
14. The 1st Respondent’s impugned Ruling directed the 2nd Respondent to respond to the Exparte Applicant’s letter dated 19th September 2025 within seven (7) days from the date of the Ruling.
15. It is its case that in directing so, the 1st Respondent acted illegally, ultra vires, and in direct breach of section 175 of the Public Procurement and Asset Disposal Act (hereinafter, “the Act”) since Section 175 of the Act guarantees any person aggrieved by a decision of the 1stRespondent the right to seek judicial review before this Honourable Court within fourteen (14) days from the date of the decision.
16. The fourteen (14) day period is intended to operate as a mandatory statutory standstill period during which no procurement activity or implementation steps may lawfully be undertaken, thereby preserving the substratum of the dispute and enabling an aggrieved party to consider and exercise the right of judicial review and that:
17. By directing the 2nd Respondent to take substantive action within seven (7) days of the Ruling, the 1st Respondent unlawfully undermined and effectively curtailed the Applicant’s statutory right to judicial review, and impermissibly compelled implementation of its decision within the protected standstill period.
18. By directing that after responding to the Applicant’s letter within 7 days the Accounting officer proceed to oversee the tender process and ensure the same is concluded in a logical manner, the Board further undermined the Applicant’s right to an appeal as it meant the 2nd Respondent could proceed to issue a notification of award and proceed with contract signing with the Interested Party during this 14 days standstill period, in breach of the provisions of Section 175 of the Act and the Applicant’s right of appeal.
19. It is its case that in the impugned decision, the Board erroneously and illegally limited the scope of the rehearing to what it termed as “response timelines”, and declined to reconsider or apply the binding findings of both:
a. Its own Ruling dated 28th August 2025; and
b. The High Court Judgment of 19th December 2025.
20. By failing to address the issue of the Regret Letter dated 29th September 2025 issued by the 2nd and 3rd Respondent which found that the Applicant had failed to comply with MR 16 at the due diligence stage, the Board thereby re-opened, re-interpreted, and effectively sat on appeal over issues that had already been conclusively determined, including:
a. The disjunctive interpretation of MR-16;
b. The illegality of introducing client-reference requirements at due diligence; and
c. The prohibition against extraneous evaluation criteria.
21. The Board expressly declined to interrogate whether the re-evaluation complied with the findings of the High Court, thereby misconstruing and unduly narrowing the Judgment.
22. The Board’s conclusion that the re-hearing was limited to one issue is irrational, unsupported by the Judgment as a whole, and one that no reasonable tribunal properly directing itself could reach.
23. The Board’s finding at paragraph 90 of the impugned Decision that “the Board perused the High Court Judgment and observed that its decision in PPARB Application No. 97 of 2025 was not altered” is irrational and absurd, noting that the High Court identified both procedural and substantive defects in the decision and proceeded to issue an Order of Certiorari to quash and set aside the decision in its entirety.
24. The Board proceeds to absurdly state at that Paragraph 90 of the impuged Ruling that “the challenge was procedural, relating on legitimate right to be heard, and not substantive” which is totally inaccurate and out of context as substantive matters were addressed by the High Court, for instance under paragraph 333 to 337 of the Judgment where the Honourable Court found that 1st Respondent illegally failed to appreciate and give effect to its binding Ruling dated 28th August 2025 in PPARB No. 90 of 2025.
25. This unreasonableness and irrationality continue in the next paragraph 91 of the Impugned Ruling, where the Board stated that the High Court did not nullify all the findings of the Board and that “Rather, the Court faulted the Board on specific grounds…” which according to the Board were:
a. The failure to adequately interrogate issues of procedural fairness during the post qualification due diligence stage; and
b. MisApplication of the Board’s earlier binding interpretation of MR 16.
26. It is its case that after its findings in paragraph 91 where it identified two issues where it was at fault, the Board at paragraph 94 finds and holds that the Board’s jurisdiction in the rehearing is “..limited to the issue of procedural fairness during the post qualification due diligence stage, with regard to legitimate expectation of the right to be heard as regarding the communication contained in the letter dated 19th September 2025.”
27. According to the Applicant,The Board blatantly contradicts itself in that:
a) The Board initially states that the challenge was procedural and not substantive then goes on to find that indeed the Honourable Court had found that the challenge was both procedural and substantive.
b) MisApplication of MR 16 was at the centre of the hearing before the Board and especially the impact of the Regret Letter which was mainly based on extraneous issues and alleged non-performance based on issues pending in litigation at the High Court between the parties.
c) The fact that the High Court quashed the impugned Decision means that the Board cannot now sit to analyse the decision afresh and on its own arrive at the finding that the High Court did not quash the entire decision- if that was the finding of the High Court, the judgment would have articulated as much.
28. The impugned Ruling is further tainted by vague, imprecise, and internally inconsistent findings whose effect is undermining the clarity, authority, and enforceability of the Judgment of this Honourable Court Judgement, which is a further indication of irrationality and illegality.
29. The 1st Respondent decision couched in ambiguous and qualified terms, is incapable of providing lawful guidance to the parties, and which in substance defeats the purpose of the remittal ordered by the Court.
30. The findings of the Board have resulted in judicial embarrassment and frustration, by placing this Honourable Court in the untenable position of having its clear and binding Judgment diluted, re-litigated, or rendered ineffective through administrative ambiguity thereby undermining the rule of law, eroding certainty in public procurement processes, and constitutes an abuse of statutory power warranting the intervention of this Court, actions which point further to the illegality, irrationality and unreasonableness of the impugned Decision.
31. The Board’s refusal to engage with issues expressly addressed by the High Court in its Judgement as constituting an illegality by the Board amounts to an abdication of the jurisdiction remitted to it and renders the rehearing legally defective.
32. The Board’s failure to address the issue of MR 16, which it noted was an issue in paragraph 97 of its Ruling, by simply indicating it shall not dwell on this issue since that the court found that its interpretation as given in Application No. 90 of 2025 was correct, smirks of mischief, irrationality and a failure to consider material considerations more so where it relates to the content of the Regret Letter which is clearly based on extraneous issues and grounds for disqualification based on matters currently pending before the High Court.
33. The Board failed to address and give effect to the findings of the High Court in paragraphs 334 to 336 of the Judgement, which led to leading to a finding that the Board misapplied itself in purporting to distinguish its earlier findings in its Ruling in PPARB 90 of 2025.
34. The Applicant argues that the decision of the Board cannot stand since as demonstrated in the motion, it is tainted with:
a. Abuse of Jurisdiction, Error of Law & Re-litigation
b. Illegality owing to a failure to Comply with Binding Findings of the High Court and internal contradictions/lack of internal consistency;
c. Irrationality and Unreasonableness; and
d. Failure to take into account relevant considerations.
35. The Applicant stands to suffer grave prejudice arising from the continued implementation of a decision rendered in excess of jurisdiction, in error of law, and in direct defiance of a binding High Court Judgment.
36. It is the Applicant's case that in view of the protracted litigation in this matter and the unwillingness of the 1st, 2nd and 3rdRespondents to comply with the law and treat the Applicant fairly in these procurement proceedings, this Honourable Court should be guided by the approach taken by the Court of Appeal in various cases including in Civil Appeal E510 of 2022 between the Chief Executive Officer Public Service Superannuation Scheme and CPF Financial Services, PPARB and Another to issue seemingly drastic but appropriate directions and further orders as it may deem fit to bring an end to the endless litigation while ensuring the Applicant is treated fairly.
37. The conduct and impugned Decision of the 1st Respondent;
a. Further violated Articles 10, 50(1), and 227 of the Constitution by undermining the rule of law, denying the Applicant a fair and meaningful hearing, and sanctioning an unfair, opaque, and unlawful procurement process through permitting the continued reliance on extraneous, undisclosed, and contested considerations—particularly alleged nonperformance and re-litigation of compliance with Mandatory Requirement No. 16, which had been conclusively determined.
b. Further to the above constitutional violations, the 1st Respondent failed to uphold the constitutional imperatives of transparency, accountability, fairness, and competitiveness in public procurement.
c. The selective engagement by the Board with binding judicial findings, coupled with vague and imprecise directions, could embolden the 2nd and 3rd Respondents to persist in conduct already quashed and prohibited by the High Court, thereby frustrating constitutional guarantees and eroding public confidence in the procurement and dispute resolution process.
38. The impugned Decision violates Article 47 of the Constitution in that:
a. The Applicant was denied a lawful, reasonable, procedurally fair, and substantively fair re-hearing as directed by the High Court.
b. The 1st Respondent constrained the rehearing through an erroneous and self-imposed limitation of scope, selectively ignored binding findings of both its own earlier Ruling and the High Court Judgment, and failed to consider material and relevant considerations expressly remitted for determination, including the legality of the Regret Letter dated 29th September 2025 and the misapplication of Mandatory Requirement No. 16 at the due diligence stage.
c. The resulting decision was therefore arbitrary, internally inconsistent, and incapable of providing clear or lawful guidance, thereby falling below the constitutional threshold of reasonableness, lawfulness, and procedural fairness guaranteed under Article 47 and the Fair Administrative Action Act.
39. Section 175 of the Procurement Act empowers this Honourable Court to entertain this review Application.
40. The Applicant filed a Further affidavit wherein it argues that The Replying Affidavits on record from the 1st, 2nd and 3rdRespondent and the Interested Party are mere denials and evasive averments which neither controvert the factual foundation of the Application nor lawfully justify the impugned actions and decisions.
41. Such responses fall far short of the threshold required to displace the Applicant’s case and underscore the absence of a bona fide answer to the serious constitutional and statutory violations complained of by the Applicant.
42. In response to paragraph 6 of the 1st Respondent’s Replying Affidavit, it argues that the Courts have consistently held that a mere catalogue of factors that were or were not considered- as it has purported to do- is not enough to vindicate it on the grounds of irrationality and illegality of the impugned decision.
43. It is case in response to paragraphs 7, 8, and 9 of the 1stRespondent’s Replying Affidavit, the Applicant reiterates that:
a. This Court in its Judgment granted an order of certiorari to quash and set aside the entire decision of the 1stRespondent in PPARB 97 of 2025 and expressly remitted the matter back to the 1st Respondent for re-hearing, to be conducted in compliance with the Judgment and within fourteen (14) days.
b. It is therefore simply absurd, illogical and a mockery of these proceedings for the 1st Respondent to aver, at paragraphs 8 and 9 of its Replying Affidavit, that it observed that the High Court, in its Judgment, had not altered its original decision in PPARB 97 of 2025.
c. Contrary to the 1st Respondent’s assertions, by failing and/or declining to interrogate the legality and effect of the Regret Letter dated 29th September 2025 in light of the binding findings of this Honourable Court, the 1st Respondent did not merely err, but acted in excess of its jurisdiction by re-opening, re-interpreting, and effectively sitting on appeal over issues that had already been conclusively determined by the High Court and expressly remitted to it for re-hearing and Application.
d. In so doing, as admitted in its Replying Affidavit, the 1stRespondent misdirected itself on the scope of the remittal, substituted its own interpretation for that of the Superior Court, and thereby rendered a decision that is illegal, irrational and incapable of standing in law.
44. In responding to paragraphs 11, 12 and 13 of the 1st Respondent’s Replying Affidavit, the Applicant reiterates that:
a. The same consists of a mere listing of the items considered without demonstrating how such considerations were relevant, determinative, or sufficient to lawfully justify the limitation of the re-hearing to the single procedural issue of the failure by the 2nd and 3rd Respondents to respond to the Applicant’s clarification letter.
b. The Applicant reiterates that this approach fails to address the central complaint that the 1st Respondent ignored material, obligatory/mandatory relevant considerations, including the finding on illegality by the High Court in paragraphs 333 to 337 and effect of the Regret Letter dated 29th September 2025, and the misapplication of MR 16, while elevating peripheral matters.
c. In the circumstances, the Applicant maintains that the impugned decision was rendered without proper regard to relevant considerations and was rendered ultra vires to the express findings and judicial authority of this Honourable Court making it irrational and unlawful.
d. Further, the fixation on a single procedural aspect, to the exclusion of material and determinative issues, rendered the re-hearing irrational as it could not logically achieve a lawful or meaningful resolution to the dispute remitted to the 1st Respondent for determination.
45. The Applicant reverts that it has indeed demonstrated, both in the Originating Motion and the Supporting Affidavit, that the impugned decision is tainted with illegality, irrationality and breaches of the Constitution including but not limited to, the 1st Respondent’s failure to comply with binding findings of this Honourable Court, its unlawful limitation of the scope of the re-hearing, and its disregard of material and mandatory relevant considerations.
46. As such, the Applicant maintains that the 1st Respondent has failed to discharge its obligation to demonstrate that the impugned decision was arrived at lawfully, rationally and within its jurisdiction and mandate.
47. On the Letter dated 14th January 2026 the Applicant argues that;
a. This letter which was issued in purported compliance with the directions of the 1st Respondent was issued contrary to the provisions of Section 175 of the Public Procurement and Asset Disposal Act (hereinafter, “the Act”) and did not cure the illegality of the 1st Respondents impugned decision. The same was purely a formal act of compliance, devoid of any remedial or legal effect on the defects complained of, further having come too late in the day to have any meaningful or practical effect to the Applicant.
b. Noting that the 1st Respondent’s decision that authorised the issuing of the letter contrary to the provisions of Section 175 of the Act is now under a challenge and in view of the interim orders issued by the court on 20th January 2026, the letter has now been overtaken by events and cannot be a matter of decision before the court in these proceedings.
48. The fourteen (14) day standstill period provided for under Section 175 of the Act is a mandatory and integral safeguard designed to preserve the integrity of the procurement process by affording aggrieved bidders a meaningful opportunity to seek review of the 1st Respondent’s decision before the High Court.
a. The assertions by the 2nd and 3rd Respondents that the seven (7) days issued by the 1st Respondent to respond to the Applicant’s clarification letter were reasonable are legally untenable since opinions based on reasonableness cannot be used to defeat express statutory provisions on timelines in the Act which courts have held are cast in stone.
b. The prolonged litigation and delay complained of by the Respondents is a direct consequence of their own failure, together with the 1st Respondent, to comply with the Act, the Tender Document and the binding findings of this Honourable Court, rather than any conduct attributable to the Applicant.
c. It is therefore disingenuous for the Respondents to allege prejudice arising from the delay when such delay is self-inflicted and cannot lawfully be invoked to defeat or limit the Applicant’s statutory right to access the review mechanism within the ample timelines provided under Section 167 and 175 of the Act.
d. In the circumstances, the 1st Respondent acted ultra vires and in disregard of the purpose and spirit of Section 175 of the Act by purporting to curtail or dilute the Applicant’s right of review without any lawful, reasoned, or justifiable basis in its impugned decision.
49. Contrary to the assertions therein, the 1st Respondent neither demonstrated nor lawfully justified its decision to restrict the scope of the re-hearing to the procedural issue of a response letter, while excluding material and determinative issues expressly remitted by this Honourable Court, including those on illegality of its decision in PPARB 97 of 2025.
50. It is its case that the bare assertion that all issues were considered, without showing how mandatory relevant considerations were applied or how the scope of the re-hearing was lawfully defined, does not cure the defect complained of.
51. The rehearing was conducted on an improperly limited basis, in excess of jurisdiction, and in disregard of the binding Judgment of this Honourable Court.
52. In response to paragraph 28 of the 2nd and 3rd Respondents’ Replying Affidavit, the Applicant states that:
a. The allegation therein is vague, unsupported, and does not identify the specific issues alleged to have been omitted so as to warrant a meaningful response.
b. In any event, the matters raised in these proceedings are peculiar to and arise from the impugned decision itself, including the manner in which the 1st Respondent confined the scope of the re-hearing, interpreted the remittal, and exercised its jurisdiction after delivery of its Ruling.
c. Such issues could not, in law or fact, have been raised before the 1st Respondent, as they only crystallized upon the issuance of the impugned decision, and the Applicant could not have reasonably anticipated or addressed errors that had not yet occurred.
d. The Applicant therefore maintains that the issues raised are properly before this Honourable Court in the exercise of its supervisory jurisdiction.
53. In response to paragraphs 29, 30, 31, 32, 33, 34, 35, 36, 37 and 38 of the 2nd and 3rd Respondents’ Replying Affidavit, the Applicant relies on and reiterates its averments in paragraphs 7 to 15 herein, and in the Applicant’s Originating Motion and Supporting Affidavit. The Applicant maintains that the said paragraphs do not introduce any new matters capable of displacing the grounds of illegality, irrationality, unreasonableness and breach of the Constitution pleaded, and merely restate positions already addressed and responded to herein.
54. It is its case that the Interested Party has gone to great lengths to recount its own version of events and to justify the procurement outcome on factual and merit-based grounds, which matters are extraneous to and fall outside the scope of these judicial review proceedings.
55. By delving into alleged compliance at the due diligence stage, the Applicant’s purported lack of capacity, and the substantive validity of the Applicant’s bid, the Interested Party is in effect inviting this Honourable Court to descend into a re-evaluation of bids and merits, contrary to the issues raised in these Judicial Review proceedings.
56. The Interested Party’s assertions do not engage with, and cannot cure, the Applicant’s core complaint, namely the illegality, irrationality, and procedural impropriety attending the 1st Respondent’s impugned decision, and amounts to a diversion from the real issues properly falling for determination before this Honourable Court.
57. In delving into issues pertaining to its alleged compliance at due diligence, the Applicant’s alleged lack of capacity- which in any event the Applicant has proved capacity within the terms of the tender- or the validity of the Regret Letter sent to the Applicant, the Interested Party is in essence inviting the Applicant and this Honourable Court to go on a wild goose chase, and deviate the attention of this Honourable Court from the illegality and irrationality of the 1st Respondent’s impugned decision.
58. The Interested Party cannot, through a Replying Affidavit, introduce or advance issues that were neither raised nor contested by the substantive parties before the 1stRespondent, nor contemplated within the scope of the impugned decision or the remittal ordered by this Honourable Court. To permit such an expansion would be to allow the Interested Party to redefine the dispute and impermissibly widen the issues for determination, contrary to its limited and supportive role in these proceedings.
59. In further response to paragraphs 9 (p) to (q) of the Interested Party’s Affidavit, the Applicant maintains the request for additional documents not contained in the Tender Document at due diligence constituted an illegality and that is why the Applicant sought clarification and subsequently applied for review of the 2nd and 3rd Respondents Regret Letter and the 1st Respondents decision in No. 97 of 2025. The High Court decision which upheld the Board’s findings in PPARB 90 of 2025 that the A
[...truncated]
1) Spent
2) THAT this Honorable Court be pleased to issue an order of CERTIORARI, to remove into the High Court and quash and/or set aside the Decision of the Public Procurement Administrative Review Board (the 1st Respondent) dated 9thJanuary 2026 (“the impugned decision”) issued upon re-hearing in Public Procurement Administrative Review Board Application No. 97 of 2025, Sintmond Group Limited vs The Accounting Officer Kenya Electricity Generating Company PLC, Kenya Electricity Generating Company PLC and JV of Munja Trading Limited & Marwil Energy Holding AS, in respect of Tender No. KGN- SALE005-2025 for Sale of Certified Emissions Reductions (Re-Tender) (“the Tender”).
3) THAT this Honorable Court be pleased to issue an order of CERTIORARI, to remove into the High Court and quash and/or set aside any award decision, Notification of Intention to Award Letter, Letter of Regret or any other award decision communication in respect to the Tender issued pursuant to the impugned decision of 1st Respondent in violation of Section 175 of the Public Procurement and Asset Disposal Act (hereinafter, “the Act”).
4) THAT this Honorable Court be pleased to issue an order of PROHIBITION, directed at the 2nd and 3rd Respondents, prohibiting them from implementing, acting upon or giving effect to the said Decision of the 1st Respondent dated 9thJanuary 2026.
5) THAT this Honourable Court be pleased to issue an order of MANDAMUS, compelling the 1st Respondent to consider the full findings of the Judgment of the High Court, Hon. Justice J. Chigiti (SC) in Judicial Review No. E351 of 2025 (“the Judgment”) in the re-hearing and provide clear directions to the 3rd Respondent on the re-evaluation of the Applicant at the due diligence stage in line with the provisions of the Tender Document and keeping in mind the Board’s findings on MR 16 in PPARB 90 of 2025.
6) In the alternative, and without prejudice to the foregoing, an order of MANDAMUS do issue compelling the 2nd and 3rd Respondent to conduct due diligence based on the Exparte Applicant’s bid, in full observance 1st Respondent’s findings in PPARB Application No. 90 of 2025 including but not limited to the disjunctive nature Mandatory Requirement 16 of the Tender, disregarding all extraneous issues and issues pending in litigation as covered in the Regret Letter of 29thSeptember 2025 and proceed to issue a Letter of Notification of Award in accordance to Sections 86 and 87 of the Act.
7) THAT in view of the protracted litigation in this matter and the unwillingness of the 1st, 2nd and 3rd Respondents to comply with the law and obey court orders and treat the Applicant fairly in these procurement proceedings, this Honourable Court be pleased to issue appropriate directions and further orders as it may deem fit to bring an end to the endless litigation while ensuring the Applicant is treated fairly.
8) THAT pending the hearing and determination of the substantive Originating Motion, that this Honorable Court be pleased to issue An Interim Order For Stay, to stay the Execution and/or Implementation of the Decision of the 1stRespondent dated 9th January 2026 in rehearing of Public Procurement Administrative Review Board Application No. 97 of 2025, Sintmond Group Limited vs The Accounting Officer Kenya Electricity Generating Company PLC, Kenya Electricity Generating Company PLC and JV of Munja Trading Limited & Marwil Energy Holding AS, in respect of the Tender.
9) THAT the Costs of these proceedings be awarded to the Ex-Parte Applicant.
10) Such other, further, incidental and/or alternative relief(s) as this Honourable Court may deem just and expedient.
The Applicant’s Case;
2. It is the Applicant's case that the issues in these proceedings are based on the tender issued by the 2nd and 3rd Respondents inviting bids in respect of Tender No. KGN-SALE-005-2025 for Sale of Certified Emissions Reductions (CERs) (Re-Tender), relating to the sale of CERS (commonly referred to as carbon credits).
3. Following an initial disqualification of the Applicant through a Regret Letter dated 1st August 2025, the Applicant filed PPARB Application No. 90 of 2025 before the Public Procurement Administrative Review Board, “the 1st Respondent” or “the Board”, which culminated in a Ruling dated 28th August 2025 in the Applicant’s favour, wherein the 1stRespondent made conclusive findings on the interpretation and Application of Mandatory Requirement No. 16 (MR-16).
4. It is the Applicant's case that in the said Ruling the Board expressly held that the use of the words “and/or” under MR-16 rendered the requirement disjunctive, such that a bidder could comply by providing either client references (the first part of MR 16) or evidence of previous CER/VER transactions (the second part of MR 16), or both.
5. The Board further held that the Applicant’s bid, which relied on evidence of previous transactions, fully satisfied MR-16, the second part, and that any insistence on client references constituted an extraneous and unlawful evaluation criterion.
6. The Board directed a re-evaluation strictly in accordance with the Tender Document, the law, and its findings, which findings were final and binding.
7. Following the re-evaluation of bids, the 3rd Respondent issued the Applicant with a second Regret Letter dated 29th September 2025 prompting the Applicant to file a second Request for Review - PPARB Application No. 97 of 2025 which culminated in a decision on 27th October 2925.
8. Being aggrieved by the findings of the Board, the Applicant moved the High Court in Judicial Review Application No. E351 of 2025.
9. The Applicant relies on all the documents and the pleadings filed by the Applicant in HCJR E351 of 2025.
10. By a Judgment delivered on 19th December 2025, the Honourable Court (Hon. Justice J. Chigiti, SC) quashed the Board’s decision and issued orders of Certiorari and Prohibition, finding amongst other findings, that:
a) The Board had misapplied and ignored its own binding findings in the Ruling of 28th August 2025;
b) The re-evaluation was not conducted in line with those findings; and
c) The Board had acted illegally in permitting re-litigation of settled issues.
11. The Court granted an order of certiorari to quash and set aside the entire decision of the Board and expressly remitted the matter back to the Board for re-hearing, to be conducted in compliance with the Judgment and within fourteen (14) days.
12. The 1st Respondent issued directions requesting the parties to file Submissions on the rehearing.
13. The hearing culminated in the impugned Ruling/Decision dated 9th January 2026, which decision is the subject of the present proceedings.
14. The 1st Respondent’s impugned Ruling directed the 2nd Respondent to respond to the Exparte Applicant’s letter dated 19th September 2025 within seven (7) days from the date of the Ruling.
15. It is its case that in directing so, the 1st Respondent acted illegally, ultra vires, and in direct breach of section 175 of the Public Procurement and Asset Disposal Act (hereinafter, “the Act”) since Section 175 of the Act guarantees any person aggrieved by a decision of the 1stRespondent the right to seek judicial review before this Honourable Court within fourteen (14) days from the date of the decision.
16. The fourteen (14) day period is intended to operate as a mandatory statutory standstill period during which no procurement activity or implementation steps may lawfully be undertaken, thereby preserving the substratum of the dispute and enabling an aggrieved party to consider and exercise the right of judicial review and that:
17. By directing the 2nd Respondent to take substantive action within seven (7) days of the Ruling, the 1st Respondent unlawfully undermined and effectively curtailed the Applicant’s statutory right to judicial review, and impermissibly compelled implementation of its decision within the protected standstill period.
18. By directing that after responding to the Applicant’s letter within 7 days the Accounting officer proceed to oversee the tender process and ensure the same is concluded in a logical manner, the Board further undermined the Applicant’s right to an appeal as it meant the 2nd Respondent could proceed to issue a notification of award and proceed with contract signing with the Interested Party during this 14 days standstill period, in breach of the provisions of Section 175 of the Act and the Applicant’s right of appeal.
19. It is its case that in the impugned decision, the Board erroneously and illegally limited the scope of the rehearing to what it termed as “response timelines”, and declined to reconsider or apply the binding findings of both:
a. Its own Ruling dated 28th August 2025; and
b. The High Court Judgment of 19th December 2025.
20. By failing to address the issue of the Regret Letter dated 29th September 2025 issued by the 2nd and 3rd Respondent which found that the Applicant had failed to comply with MR 16 at the due diligence stage, the Board thereby re-opened, re-interpreted, and effectively sat on appeal over issues that had already been conclusively determined, including:
a. The disjunctive interpretation of MR-16;
b. The illegality of introducing client-reference requirements at due diligence; and
c. The prohibition against extraneous evaluation criteria.
21. The Board expressly declined to interrogate whether the re-evaluation complied with the findings of the High Court, thereby misconstruing and unduly narrowing the Judgment.
22. The Board’s conclusion that the re-hearing was limited to one issue is irrational, unsupported by the Judgment as a whole, and one that no reasonable tribunal properly directing itself could reach.
23. The Board’s finding at paragraph 90 of the impugned Decision that “the Board perused the High Court Judgment and observed that its decision in PPARB Application No. 97 of 2025 was not altered” is irrational and absurd, noting that the High Court identified both procedural and substantive defects in the decision and proceeded to issue an Order of Certiorari to quash and set aside the decision in its entirety.
24. The Board proceeds to absurdly state at that Paragraph 90 of the impuged Ruling that “the challenge was procedural, relating on legitimate right to be heard, and not substantive” which is totally inaccurate and out of context as substantive matters were addressed by the High Court, for instance under paragraph 333 to 337 of the Judgment where the Honourable Court found that 1st Respondent illegally failed to appreciate and give effect to its binding Ruling dated 28th August 2025 in PPARB No. 90 of 2025.
25. This unreasonableness and irrationality continue in the next paragraph 91 of the Impugned Ruling, where the Board stated that the High Court did not nullify all the findings of the Board and that “Rather, the Court faulted the Board on specific grounds…” which according to the Board were:
a. The failure to adequately interrogate issues of procedural fairness during the post qualification due diligence stage; and
b. MisApplication of the Board’s earlier binding interpretation of MR 16.
26. It is its case that after its findings in paragraph 91 where it identified two issues where it was at fault, the Board at paragraph 94 finds and holds that the Board’s jurisdiction in the rehearing is “..limited to the issue of procedural fairness during the post qualification due diligence stage, with regard to legitimate expectation of the right to be heard as regarding the communication contained in the letter dated 19th September 2025.”
27. According to the Applicant,The Board blatantly contradicts itself in that:
a) The Board initially states that the challenge was procedural and not substantive then goes on to find that indeed the Honourable Court had found that the challenge was both procedural and substantive.
b) MisApplication of MR 16 was at the centre of the hearing before the Board and especially the impact of the Regret Letter which was mainly based on extraneous issues and alleged non-performance based on issues pending in litigation at the High Court between the parties.
c) The fact that the High Court quashed the impugned Decision means that the Board cannot now sit to analyse the decision afresh and on its own arrive at the finding that the High Court did not quash the entire decision- if that was the finding of the High Court, the judgment would have articulated as much.
28. The impugned Ruling is further tainted by vague, imprecise, and internally inconsistent findings whose effect is undermining the clarity, authority, and enforceability of the Judgment of this Honourable Court Judgement, which is a further indication of irrationality and illegality.
29. The 1st Respondent decision couched in ambiguous and qualified terms, is incapable of providing lawful guidance to the parties, and which in substance defeats the purpose of the remittal ordered by the Court.
30. The findings of the Board have resulted in judicial embarrassment and frustration, by placing this Honourable Court in the untenable position of having its clear and binding Judgment diluted, re-litigated, or rendered ineffective through administrative ambiguity thereby undermining the rule of law, eroding certainty in public procurement processes, and constitutes an abuse of statutory power warranting the intervention of this Court, actions which point further to the illegality, irrationality and unreasonableness of the impugned Decision.
31. The Board’s refusal to engage with issues expressly addressed by the High Court in its Judgement as constituting an illegality by the Board amounts to an abdication of the jurisdiction remitted to it and renders the rehearing legally defective.
32. The Board’s failure to address the issue of MR 16, which it noted was an issue in paragraph 97 of its Ruling, by simply indicating it shall not dwell on this issue since that the court found that its interpretation as given in Application No. 90 of 2025 was correct, smirks of mischief, irrationality and a failure to consider material considerations more so where it relates to the content of the Regret Letter which is clearly based on extraneous issues and grounds for disqualification based on matters currently pending before the High Court.
33. The Board failed to address and give effect to the findings of the High Court in paragraphs 334 to 336 of the Judgement, which led to leading to a finding that the Board misapplied itself in purporting to distinguish its earlier findings in its Ruling in PPARB 90 of 2025.
34. The Applicant argues that the decision of the Board cannot stand since as demonstrated in the motion, it is tainted with:
a. Abuse of Jurisdiction, Error of Law & Re-litigation
b. Illegality owing to a failure to Comply with Binding Findings of the High Court and internal contradictions/lack of internal consistency;
c. Irrationality and Unreasonableness; and
d. Failure to take into account relevant considerations.
35. The Applicant stands to suffer grave prejudice arising from the continued implementation of a decision rendered in excess of jurisdiction, in error of law, and in direct defiance of a binding High Court Judgment.
36. It is the Applicant's case that in view of the protracted litigation in this matter and the unwillingness of the 1st, 2nd and 3rdRespondents to comply with the law and treat the Applicant fairly in these procurement proceedings, this Honourable Court should be guided by the approach taken by the Court of Appeal in various cases including in Civil Appeal E510 of 2022 between the Chief Executive Officer Public Service Superannuation Scheme and CPF Financial Services, PPARB and Another to issue seemingly drastic but appropriate directions and further orders as it may deem fit to bring an end to the endless litigation while ensuring the Applicant is treated fairly.
37. The conduct and impugned Decision of the 1st Respondent;
a. Further violated Articles 10, 50(1), and 227 of the Constitution by undermining the rule of law, denying the Applicant a fair and meaningful hearing, and sanctioning an unfair, opaque, and unlawful procurement process through permitting the continued reliance on extraneous, undisclosed, and contested considerations—particularly alleged nonperformance and re-litigation of compliance with Mandatory Requirement No. 16, which had been conclusively determined.
b. Further to the above constitutional violations, the 1st Respondent failed to uphold the constitutional imperatives of transparency, accountability, fairness, and competitiveness in public procurement.
c. The selective engagement by the Board with binding judicial findings, coupled with vague and imprecise directions, could embolden the 2nd and 3rd Respondents to persist in conduct already quashed and prohibited by the High Court, thereby frustrating constitutional guarantees and eroding public confidence in the procurement and dispute resolution process.
38. The impugned Decision violates Article 47 of the Constitution in that:
a. The Applicant was denied a lawful, reasonable, procedurally fair, and substantively fair re-hearing as directed by the High Court.
b. The 1st Respondent constrained the rehearing through an erroneous and self-imposed limitation of scope, selectively ignored binding findings of both its own earlier Ruling and the High Court Judgment, and failed to consider material and relevant considerations expressly remitted for determination, including the legality of the Regret Letter dated 29th September 2025 and the misapplication of Mandatory Requirement No. 16 at the due diligence stage.
c. The resulting decision was therefore arbitrary, internally inconsistent, and incapable of providing clear or lawful guidance, thereby falling below the constitutional threshold of reasonableness, lawfulness, and procedural fairness guaranteed under Article 47 and the Fair Administrative Action Act.
39. Section 175 of the Procurement Act empowers this Honourable Court to entertain this review Application.
40. The Applicant filed a Further affidavit wherein it argues that The Replying Affidavits on record from the 1st, 2nd and 3rdRespondent and the Interested Party are mere denials and evasive averments which neither controvert the factual foundation of the Application nor lawfully justify the impugned actions and decisions.
41. Such responses fall far short of the threshold required to displace the Applicant’s case and underscore the absence of a bona fide answer to the serious constitutional and statutory violations complained of by the Applicant.
42. In response to paragraph 6 of the 1st Respondent’s Replying Affidavit, it argues that the Courts have consistently held that a mere catalogue of factors that were or were not considered- as it has purported to do- is not enough to vindicate it on the grounds of irrationality and illegality of the impugned decision.
43. It is case in response to paragraphs 7, 8, and 9 of the 1stRespondent’s Replying Affidavit, the Applicant reiterates that:
a. This Court in its Judgment granted an order of certiorari to quash and set aside the entire decision of the 1stRespondent in PPARB 97 of 2025 and expressly remitted the matter back to the 1st Respondent for re-hearing, to be conducted in compliance with the Judgment and within fourteen (14) days.
b. It is therefore simply absurd, illogical and a mockery of these proceedings for the 1st Respondent to aver, at paragraphs 8 and 9 of its Replying Affidavit, that it observed that the High Court, in its Judgment, had not altered its original decision in PPARB 97 of 2025.
c. Contrary to the 1st Respondent’s assertions, by failing and/or declining to interrogate the legality and effect of the Regret Letter dated 29th September 2025 in light of the binding findings of this Honourable Court, the 1st Respondent did not merely err, but acted in excess of its jurisdiction by re-opening, re-interpreting, and effectively sitting on appeal over issues that had already been conclusively determined by the High Court and expressly remitted to it for re-hearing and Application.
d. In so doing, as admitted in its Replying Affidavit, the 1stRespondent misdirected itself on the scope of the remittal, substituted its own interpretation for that of the Superior Court, and thereby rendered a decision that is illegal, irrational and incapable of standing in law.
44. In responding to paragraphs 11, 12 and 13 of the 1st Respondent’s Replying Affidavit, the Applicant reiterates that:
a. The same consists of a mere listing of the items considered without demonstrating how such considerations were relevant, determinative, or sufficient to lawfully justify the limitation of the re-hearing to the single procedural issue of the failure by the 2nd and 3rd Respondents to respond to the Applicant’s clarification letter.
b. The Applicant reiterates that this approach fails to address the central complaint that the 1st Respondent ignored material, obligatory/mandatory relevant considerations, including the finding on illegality by the High Court in paragraphs 333 to 337 and effect of the Regret Letter dated 29th September 2025, and the misapplication of MR 16, while elevating peripheral matters.
c. In the circumstances, the Applicant maintains that the impugned decision was rendered without proper regard to relevant considerations and was rendered ultra vires to the express findings and judicial authority of this Honourable Court making it irrational and unlawful.
d. Further, the fixation on a single procedural aspect, to the exclusion of material and determinative issues, rendered the re-hearing irrational as it could not logically achieve a lawful or meaningful resolution to the dispute remitted to the 1st Respondent for determination.
45. The Applicant reverts that it has indeed demonstrated, both in the Originating Motion and the Supporting Affidavit, that the impugned decision is tainted with illegality, irrationality and breaches of the Constitution including but not limited to, the 1st Respondent’s failure to comply with binding findings of this Honourable Court, its unlawful limitation of the scope of the re-hearing, and its disregard of material and mandatory relevant considerations.
46. As such, the Applicant maintains that the 1st Respondent has failed to discharge its obligation to demonstrate that the impugned decision was arrived at lawfully, rationally and within its jurisdiction and mandate.
47. On the Letter dated 14th January 2026 the Applicant argues that;
a. This letter which was issued in purported compliance with the directions of the 1st Respondent was issued contrary to the provisions of Section 175 of the Public Procurement and Asset Disposal Act (hereinafter, “the Act”) and did not cure the illegality of the 1st Respondents impugned decision. The same was purely a formal act of compliance, devoid of any remedial or legal effect on the defects complained of, further having come too late in the day to have any meaningful or practical effect to the Applicant.
b. Noting that the 1st Respondent’s decision that authorised the issuing of the letter contrary to the provisions of Section 175 of the Act is now under a challenge and in view of the interim orders issued by the court on 20th January 2026, the letter has now been overtaken by events and cannot be a matter of decision before the court in these proceedings.
48. The fourteen (14) day standstill period provided for under Section 175 of the Act is a mandatory and integral safeguard designed to preserve the integrity of the procurement process by affording aggrieved bidders a meaningful opportunity to seek review of the 1st Respondent’s decision before the High Court.
a. The assertions by the 2nd and 3rd Respondents that the seven (7) days issued by the 1st Respondent to respond to the Applicant’s clarification letter were reasonable are legally untenable since opinions based on reasonableness cannot be used to defeat express statutory provisions on timelines in the Act which courts have held are cast in stone.
b. The prolonged litigation and delay complained of by the Respondents is a direct consequence of their own failure, together with the 1st Respondent, to comply with the Act, the Tender Document and the binding findings of this Honourable Court, rather than any conduct attributable to the Applicant.
c. It is therefore disingenuous for the Respondents to allege prejudice arising from the delay when such delay is self-inflicted and cannot lawfully be invoked to defeat or limit the Applicant’s statutory right to access the review mechanism within the ample timelines provided under Section 167 and 175 of the Act.
d. In the circumstances, the 1st Respondent acted ultra vires and in disregard of the purpose and spirit of Section 175 of the Act by purporting to curtail or dilute the Applicant’s right of review without any lawful, reasoned, or justifiable basis in its impugned decision.
49. Contrary to the assertions therein, the 1st Respondent neither demonstrated nor lawfully justified its decision to restrict the scope of the re-hearing to the procedural issue of a response letter, while excluding material and determinative issues expressly remitted by this Honourable Court, including those on illegality of its decision in PPARB 97 of 2025.
50. It is its case that the bare assertion that all issues were considered, without showing how mandatory relevant considerations were applied or how the scope of the re-hearing was lawfully defined, does not cure the defect complained of.
51. The rehearing was conducted on an improperly limited basis, in excess of jurisdiction, and in disregard of the binding Judgment of this Honourable Court.
52. In response to paragraph 28 of the 2nd and 3rd Respondents’ Replying Affidavit, the Applicant states that:
a. The allegation therein is vague, unsupported, and does not identify the specific issues alleged to have been omitted so as to warrant a meaningful response.
b. In any event, the matters raised in these proceedings are peculiar to and arise from the impugned decision itself, including the manner in which the 1st Respondent confined the scope of the re-hearing, interpreted the remittal, and exercised its jurisdiction after delivery of its Ruling.
c. Such issues could not, in law or fact, have been raised before the 1st Respondent, as they only crystallized upon the issuance of the impugned decision, and the Applicant could not have reasonably anticipated or addressed errors that had not yet occurred.
d. The Applicant therefore maintains that the issues raised are properly before this Honourable Court in the exercise of its supervisory jurisdiction.
53. In response to paragraphs 29, 30, 31, 32, 33, 34, 35, 36, 37 and 38 of the 2nd and 3rd Respondents’ Replying Affidavit, the Applicant relies on and reiterates its averments in paragraphs 7 to 15 herein, and in the Applicant’s Originating Motion and Supporting Affidavit. The Applicant maintains that the said paragraphs do not introduce any new matters capable of displacing the grounds of illegality, irrationality, unreasonableness and breach of the Constitution pleaded, and merely restate positions already addressed and responded to herein.
54. It is its case that the Interested Party has gone to great lengths to recount its own version of events and to justify the procurement outcome on factual and merit-based grounds, which matters are extraneous to and fall outside the scope of these judicial review proceedings.
55. By delving into alleged compliance at the due diligence stage, the Applicant’s purported lack of capacity, and the substantive validity of the Applicant’s bid, the Interested Party is in effect inviting this Honourable Court to descend into a re-evaluation of bids and merits, contrary to the issues raised in these Judicial Review proceedings.
56. The Interested Party’s assertions do not engage with, and cannot cure, the Applicant’s core complaint, namely the illegality, irrationality, and procedural impropriety attending the 1st Respondent’s impugned decision, and amounts to a diversion from the real issues properly falling for determination before this Honourable Court.
57. In delving into issues pertaining to its alleged compliance at due diligence, the Applicant’s alleged lack of capacity- which in any event the Applicant has proved capacity within the terms of the tender- or the validity of the Regret Letter sent to the Applicant, the Interested Party is in essence inviting the Applicant and this Honourable Court to go on a wild goose chase, and deviate the attention of this Honourable Court from the illegality and irrationality of the 1st Respondent’s impugned decision.
58. The Interested Party cannot, through a Replying Affidavit, introduce or advance issues that were neither raised nor contested by the substantive parties before the 1stRespondent, nor contemplated within the scope of the impugned decision or the remittal ordered by this Honourable Court. To permit such an expansion would be to allow the Interested Party to redefine the dispute and impermissibly widen the issues for determination, contrary to its limited and supportive role in these proceedings.
59. In further response to paragraphs 9 (p) to (q) of the Interested Party’s Affidavit, the Applicant maintains the request for additional documents not contained in the Tender Document at due diligence constituted an illegality and that is why the Applicant sought clarification and subsequently applied for review of the 2nd and 3rd Respondents Regret Letter and the 1st Respondents decision in No. 97 of 2025. The High Court decision which upheld the Board’s findings in PPARB 90 of 2025 that the A
[...truncated]