1. The subject matter before this Court stems from a dispute around the procurement process of Certified Emission Reductions (CERS), commonly known as Carbon Credits, issued by the Kenya Electricity Generating Company PLC, the 3rd Respondent herein the “Procuring Entity”, between 2013 to 2020 from its hydropower, wind and geothermal projects in the country and advertised for sale under tender number - kgnsale-005-2025 - tender for sale of certified emission reductions (cers) (re-tender) (open international).
2. The application that is before the court for determination is the originating motion dated 4th November 2025 wherein the applicant is seeking the following reliefs;
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 27th October 2025 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- SALE-005-2025 for Sale of Certified Emissions Reductions (Re-Tender).
3) THAT this Honorable Court be pleased to issue an order of PROHIBITION, directed at the 2nd and 3rd Respondents, prohibiting them from implementing the Decision of the 1stRespondent dated 27th October 2025 in Public Procurement Administrative Review Board Application No. 85 of 2025, 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- SALE-005-2025 for Sale of Certified Emissions Reductions (Re-Tender).
4) 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 Contract in respect of Tender No. KGN- SALE-005-2025 for Sale of Certified Emissions Reductions (Re-Tender) illegally signed between the 2nd and 3rd Respondent and the Interested Party during the 14 days standstill period following the decision of the 1st Respondent dated 27th October 2025.
5) THAT pending the hearing and determination of the substantive Originating Motion, that this Honorable Court be pleased to issueAN INTERIM ORDER FOR STAY, to stay the Execution and/or Implementation of the Decision of the 1st Respondentdated 27th October 2025 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- SALE-005-2025 for Sale of Certified Emissions Reductions (Re-Tender).
6) THAT the costs of these proceedings to be provided for.
7) Such other, further, incidental and/or alternative relief(s) as this Honourable Court may deem just and expedient.
The Applicants case;
3. The applicant relies on the supporting Affidavit and the further Affidavit of Richmond Gatu Muriithi, the Director and Group Chief Executive Officer (CEO) of the Applicant.The Applicant was one of three bidders in the Tender, TENDER NUMBER - KGN-SALE-005-2025 - Tender For Sale Of Certified Emission Reductions (Cers) (Re-Tender) (Open International) The subject tender for the sale of Certified Emission Reductions (CERs) (commonly known as carbon credits) which was re-advertised by the 3rd Respondent (hereinafter alternatively referred to as “the Procuring Entity”) on or around 27th May 2025.
4. The Tender was initially scheduled to close on 17th June 2025 at 1400Hrs East African Time but was extended through Addendum No. 3 to close on 24thJune 2025 at 1400Hrs East African Time.
5. The Applicant elected to participate in the Tender by preparing its bid in accordance with the Invitation to Tender and Instructions to Tenderers (ITT) and Bid Data Sheet, as issued under the Tender Document and observing the relevant legal provisions.
6. The Tender was closed on 24th June 2025 at 1400Hrs East African Time and the tender opening took place on the same date from 1430Hrs East African Time, with three (3) bidders submitting bids by the Tender Closing date, as summarized in the Tender Opening Minutes prepared by the 3rd Respondent for the price opening that took place on 24th June 2025 at 1440Hrs.
7. Under the Tender Document, evaluation was to be conducted in two stages namely the Mandatory Preliminary Evaluation and Financial Evaluation stage.
8. By a Letter of Regret dated 1st August 2025, the General Manager – Supply Chain of the 3rd Respondent informed the Applicant that its bid was not successful.
9. The reason given on why the Applicant’s bid was not successful was that; “Your Firm did not meet the following mandatory requirements as stipulated in the tender document; (i) Did not submit any client references nor evidence of transfer of any CERs to a client or on behalf of a client as required in MR16. The evidence submitted of purchase for Voluntary offset of the bidder’s own business activities is largely an insider dealing which does not meet the requirement of transaction with a client.”
10. That precipitated the filing of Request for Review Application No 90 of 2025 dated 6th August 2025 before the 1st Respondent citing breaches of various provisions of the Public Procurement and Asset Disposal Act, 2015 (hereinafter, “the Act”), the Public Procurement and Asset Disposal Regulations, 2020 (hereinafter, “the Regulations”) and the Constitution of Kenya, 2010, especially Article 227.
11. Vide a Decision dated 28th August 2025, the Review Board’ allowed the Request for Review Application No. 90 of 2025, and made, inter alia, the following findings/observations; -
i. The Review Board established that the core issue in the Request for Review concerned the evaluation of the Applicant’s bid and specifically how the criteria Mandatory Requirement No. 16 was applied in evaluating and disqualifying the Applicant’s bid as non-responsive at the preliminary evaluation stage.
ii. The Review Board noted that the Applicant had been declared non-responsive for failure to provide client references or demonstrate any transfer of CERs to a client or on behalf of a client as required under MR 16. That instead, the Applicant had provided evidence of CERs purchased for voluntary offsetting of its own business activities, which the 2nd and 3rd Respondents considered as an internal transaction that did not amount to a client-related transaction as envisaged under MR 16.
iii. In examining the express wording of MR 16, the Review Board found that the same required bidders to demonstrate evidence of their past participation in emission reduction trading or transactions involving Certified Emission Reductions (CERs) or Verified Emission Reductions (VERs) and that to do so, a bidder was expected to provide documentation that showed it had successfully engaged in such transactions before and/or client references.
iv. The Review Board examined the use of the phrase “and/or” and held that this made the requirement disjunctive rather than conjunctive. It therefore held that a bidder could satisfy the requirement by producing evidence under the first part alone, or under the second part alone, or under both. That compliance was therefore not limited to fulfilling both conditions simultaneously; fulfilling one of them was sufficient for a bidder to meet the requirement under MR 16. (Refer to paragraph 110 of the 1st Respondent’s Ruling dated 28th August 2025).
v. The Review Board found that with regard to the first part, the requirement envisaged the submission of Client References in the form of letters, references, or confirmations from clients to whom it had successfully traded or transacted Certified Emission Reductions (CERs/Voluntary Emission Reductions (VERs) in the past demonstrating that the bidder had participated in emission reduction transactions on behalf of, or in relation to, external parties. (Refer to paragraph 111 of the 1stRespondent’s Ruling dated 28th August 2025).
vi. On the second part, the Review Board found that the requirement envisaged the submission of evidence of CER transfer, voluntary cancellation certificates, or certificates from successful purchase of CERs. That these were formal records or certificates issued upon the transfer or cancellation of CERs/VERs demonstrating that the bidder had completed such transactions successfully. (Refer to paragraph 112 of the 1st Respondent’s Ruling dated 28th August 2025).
vii. The Review Board expressly held that MR 16 was therefore not conjunctive for using the expression “and/or” which denotes flexibility and that if the intent was to make it conjunctive, the requirement would have been drafted with the word “and” only, thereby compelling bidders to provide both client references and transaction certificates without exception. (Refer to paragraph 116 of the 1st Respondent’s Ruling dated 28thAugust 2025).
viii. The Review Board, however, noted and recognized that MR 16 could be construed conjunctively and found from examining the 2nd and 3rd Respondent’s responses, clarifications as well as the addendum creating MR 16, that the net effect was that 2nd and 3rd Respondents had orchestrated an ambiguity. The Review Board held that being the authors of the documents relied in the tendering process by the Applicant, as per the contra-proferentemrule, the ambiguity could not be visited upon the Applicant.
ix. The Review Board having already established that the requirement could be met disjunctively, examined the Applicant’s bid documents and held that “Based on the documents submitted, the Board finds no doubt that the Applicant satisfied Mandatory Requirement No. 16 with respect to its second part, given that the requirement is interpreted disjunctively, as explained above.”
x. The Review Board thereafter noted that the present tender provided for only two stages of evaluation; preliminary evaluation and financial evaluation, excluding technical evaluation. Consequently, it recommended that the 2ndand 3rd Respondents conduct a due diligence on the successful bidder under Section 83 of the Act.
xi. The Review Board noted that while Section 83 of the Act is not framed in mandatory terms, that the Tender Document at Clause 14 of the Bid Data Sheet contemplates due diligence at the discretion of the 3rdRespondent. It held that conducting the due diligence would be prudent to guarantee the quality of services, particularly where public interest is concerned, and would serve to ensure that the procurement proceedings are carried out in accordance with the principles of transparency and cost effectiveness as per Article 227.
xii. The Review Board in conclusion held that having considered the parties’ submissions and evaluated all the evidence presented that the evaluation of the Applicant’s bid was not conducted in accordance with the provisions of Section 80 (2) of the Act, read together with other applicable procurement laws and the tender document. Consequently, it allowed the Applicant’s Request for Review dated 6th August 2025 and rendered the orders as below.
xiii. The 1st Respondent ordered that the 2nd Respondent be and is hereby directed to re-convene the Evaluation Committee and re-evaluate all tenders at the preliminary evaluation stage afresh in accordance with the provisions of the Tender Document, the Act, the Regulations 2020, the Constitution and taking into consideration the findings of the Board herein.
xiv. The 1st Respondent ordered that the 2nd and 3rdRespondents are hereby directed to proceed with and conclude the tender proceedings concerning Tender No. KGNSALE-005-2025 for Sale of Certified Emissions Reductions (Re-Tender) including the issuance of an award within 21days from the date thereof.
xv. The 1st Respondent ordered that in view of the fact that the procurement process is not complete, that each party bear its own costs in the Request for Review.
12. It is the Applicant’s case that on 15th September 2025, 3 days before the 18th September 2025 deadline after which the 21 days given by the Review Board would have lapsed to comply with its directions the 3rdRespondent (also referred to as “the Procuring Entity”) wrote a letter whereby it declared their intention to carry out due diligence on the Applicant.
13. The letter stated as follows:
“…..In light of the above, you are hereby notified of the Tender Evaluation Committee’s intention to carry out due diligence on your firm for purposes of confirming and verifying your qualifications and determining whether your firm is qualified to be awarded the contract. The proposed date for this exercise is Wednesday 17th September 2025 10:00AM, at your business premises.”
14. On 17th September 2025, a team from the Procuring Entity visited the Applicant’s offices for the site visit as part of the due diligence exercise.
15. At the conclusion of the visit, the 3rd Respondent verbally requested that the Applicant sends them a structured invoicing format which the Applicant later sent.
16. On the same day of the site visit, 17th September 2025 at 2:57 PM, the Procuring Entity sent an Email to the Applicant as reproduced verbatim below:
“Following the due diligence exercise carried out on your firm earlier by our team, you are requested to avail the following information/documents as discussed:
1. Financial Capacity & Audited Accounts- Audited financial statements for at least last 2 years;
2. Financial Credit Lines/Access to Credit- An assurance letter stating their intended process of sale of CER to demonstrate commitment to meeting their financial obligation.
3. ESG Profile and Community Impact Commitment- To provide a brief on how they are undertaking and planning to undertake ESG frameworks.
4. Past Experiences - Provision of evidence of past professional experience through testimonials from previous assignments undertaken.
17. These will facilitate completion of the evaluation exercise within the required timelines hence we request you to avail the documents by tomorrow 18th September 2025 at 9:30 AM.”
18. Noting that it only had about 3 working hours to provide the document requested by the 3rd Respondent, the Applicant immediately responded to the 3rd Respondent’s requests through its Letter dated 17th September 2025 wherein it:
a. Provided documents in proof of past experience by listing various projects executed as well as three (3) Testimonials from Clients with whom it has had previous assignments undertaken as requested, noting that the Email did not request client references specific to CERs or VERs but ‘past experience- provision of evidence of past professional experience.
b. Provided its ESG Strategy Profile and Community Impact Commitment strategy as requested;
c. Provided a Proposed Payment plan as well as accompanying Proposed Invoices as had been requestedin the due diligence exercise; and
d. Informed that it had furnished its audited accounts physically to the 3rd Respondent’s office.
19. The Applicant thereafter wrote a letter to the 3rdRespondent dated 19th September 2025 in which it sought clarification on the conduct of the due diligence exercise bearing in mind the fast-approaching deadline and that the Ruling and directions of the 1st Respondent did not make it mandatory to conduct the same.
20. The Applicant’s letter questioned the legality of the exercise vis a vis Section 83 of the Act and the Tender Documents.
21. In the said Letter, the Applicant raised its reservations that due diligence is meant to be based on the evaluation criteria as per the tender document and that the documents/information requested by the Procuring Entity were not part of the tender and therefore would not constitute information that is subject to the due diligence exercise purporting to be conducted by themselves.
22. The Letter questioned that the request for the documents amounted to creation of a fresh evaluation criteria in contravention to the law and resulted in unfairness on the bidder as it is not clear what due diligence criteria the Procuring Entity would be applying in examining the same.
23. The 3rd Respondent responded vide an Email sent on 19thSeptember 2025 whereby it acknowledged receipt of the documents and the Applicant’s Letter. The 3rd Respondent indicated that it would respond to the Applicant’s Letter officially and meanwhile stated that the due diligence documentary requirements including on specific experience must have been clarified during the due diligence exercise. Notably, the Procuring Entity was referring to the visit on 17th September 2025, which was 2 days before the Applicant’s Letter seeking clarification making it illogical and unreasonable that the alleged clarifications purportedly rendered during the visit would go to resolve the issues that were to be raised by the Applicant 2 days later in its Letter.
24. The Email also informed the Applicant that the Procuring Entity would be seeking an extension to the 21-day re-evaluation period from the 1st Respondent, but that nevertheless they expect a conclusion of the exercise soon.
25. This extension was sought on 19th September 2025, which was 1 day after the lapse of the 21-day deadline.
26. The 2nd and 3rdRespondents filed a Notice of Motion Application dated 18thSeptember 2025 with the 1st Respondent, seeking orders for extension of the time by 14 days for them to proceed with and conclude the tender proceedings as per order 3 of the directions of the 1st Respondent.
27. They also requested a grant of leave for due diligence to be conducted during such extended period.
28. Vide a Ruling dated 26th September 2025, the Review Board allowed the 2nd and 3rd Respondents’ Notice of Motion and granted them an extension of 14 days from 18th September 2025 to proceed with and conclude the tender proceedings including issuance of the Letter of Award.
29. Despite being afforded this extension, the 2nd and 3rdRespondents never responded to the clarifications sought on the issues raised in the Applicant’s Letter dated 19th September 2025.
30. Instead, the 2nd Respondent issued the Applicant with a Letter of Regret dated 29th September 2025 informing the Applicant that:
a. “Based on the due diligence outcome, you failed to meet requirements on the specific/relevant experience, under MR 16 as you did not demonstrate previous successful participation in Emission Reduction trading/transactions of CER’s or VER’s as listed below:
i. While reviewing the previous experience and your performance history it was noted that you were awarded Tender No.KGN-SALE-001-2024 for the Sale of 4,578,148 Certified Emission Reductions (CERs) by KenGen, valued at USD 32,047,036.00, on 7th May 2024. Despite being granted two extensions under the contract, and a stay order by the High Court you failed to honour its contractual obligations.
ii. The current tender for 6,384,398 CERs incorporates the 4,578,148 CERs previously terminated for non-performance by your firm. This creates a direct and material nexus between your past failure and the subject matter of the present procurement.
iii. In your submission you referred to a past transaction involving procurement of 200 CERs at a total USD 180 (KES 23,220) for internal business use. It was established that while this demonstrated limited participation in the carbon market, the volume and scale of the transaction are negligible compared to the magnitude of the current tender involving 6. 38 million CERs. This was therefore determined that such a transaction did not provide credible evidence of capacity to undertake a contract of this scale.
iv. In addition, you did not furnish any new or independent client references demonstrating successful performance of comparable contracts.
b. The bidder awarded the contract is JV of Munja Trading Limited and Marwil Energy Holding AS at the total price of USD19,637,758.00 (Say United States Dollars Nineteen Million, Six Hundred and Thirty-Seven Thousand, Seven Hundred and Fifty-Eight) for 6,384,398 CER’s.”
31. Being aggrieved by this decision of the 2nd Respondent the Applicant on 6th October 2025 filed Review Application No. 97of 2025 before the 1st Respondent, challenging the decision of the 2nd Respondent as contained in the 2nd Letter of Regret and seeking the following orders:
a. That the 2nd and 3rd Respondents’ decision awarding Tender Number: KGN-SALE-005-2025 Tender for Sale of Certified Emissions Reductions (CERs) (Re-Tender) to the Interested Party be annulled and set aside;
b. That the 2nd and 3rd Respondents’ Letter of Regret dated 1stAugust 2025 notifying the Applicant that it had not been successful in Tender Number: KGN-SALE-005-2025 Tender for Sale of Certified Emissions Reductions (CERs) (Re-Tender) and notifying the successful bidder as the Interested Party be annulled and set aside;
c. A declaration that the Procuring Entity failed to evaluate the Applicant’s bid at the mandatory preliminary evaluation stage in accordance with the criteria and procedures under the Tender Document and the provisions of the Act at Sections 79(1), 80(2) and 86(1) and the provisions of Regulation 74(1) of the Regulations;
d. The Procuring Entity be directed to re-admit the Applicant’s bid as having met all mandatory requirements and proceed to undertake the second stage of evaluation, namely, financial evaluation, in line with pages 12 and 13 of the Tender Document
e. The 2nd and 3rd Respondents be directed to proceed with the procurement to its logical conclusion by making an award to the responsive highest priced bidder in line with the itsfindings of the re-evaluation of the Applicant’s bid at the preliminary evaluation stage where the Applicant’s bid was unfairly disqualified;
f. The 2nd and 3rd Respondents be compelled to pay the Applicant the costs arising from/and incidental to this Application; and
g. The Review Board to make such further orders as it may deem fit and appropriate in ensuring that the ends of justice are fully met in the circumstances of this Request for Review.
32. Vide a Ruling dated 27th October 2025 (hereinafter referred to as “the impugned Decision”), the 1st Respondent rendered its decision thereby dismissing the Applicant’s Request for Review.
33. The Applicant is apprehensive that due to the time sensitive nature of this matter and the conduct of the 2nd and 3rdRespondent that 2nd and 3rd Respondent and the Interested Party may have illegally entered into the procurement contract or intend to do so before the lapse of the standstill period afforded to the Applicant under Section 175 (1) of the Act to pursue the Judicial Review reliefs sought herein and before the conclusion of this matter, thus the prayer for certiorari to quash any such illegally signed contract and the prayer for interim order of stay and prohibition to bar the 2nd and 3rd Respondents from implementing the decision of the 1st Respondent pending the hearing and determination of the substantive Originating Motion.
34. The Applicant is aggrieved by the 1st Respondent's impugned Decision and seeks to invoke the supervisory jurisdiction of this Honorable Court on grounds that the impugned Decision is tainted with irrationality and illegality in breach of the provisions of the Act as outlined hereunder:
a. The 1st Respondent acted ultra vires Sections 173 of the Act as read together with Sections 60 and 70 (4) of the same by purporting to expand/amend the express provisions of the Tender Document- Clause 14 of the Bid Data Sheet- to include:
i. A requirement that a bidder provide additional client references at the due diligence stage;
ii. A requirement that a bidder must provide evidence of previous participation in transactions involving CERs and VERs of a substantial capacity close enough to the capacity intended to be disposed in the subject Tender; and
iii. Past performance of a bidder at due diligence despite the same not being a mandatory or technical requirement in the Tender Document.
b. Disregard of Sections 80 (2) and (3) of the Act by defining Clause 14 of the Bid Data Sheet to include the requirements as elaborated above and in effect amending the tender documents to include extraneous evaluation criteria.
c. The 1st Respondent erroneously failed to consider and appreciate the provisions of Section 83 of the Act by:
i. Failing to consider that the 3rd Respondent unfairly introduced extraneous due diligence criteria that were not borne from the Tender Document;
ii. Failing to consider the Applicant’s assertions that due diligence involved the strict confirmation and verification of documents already supplied by a bidder but not the imposition of new requirements and request for additional documents from a bidder.
d. The 1st Respondent also erroneously failed to consider Section 70 (3) of the Act which requires that tender documents should have sufficient information to allow fair competition among bidders. The 1st Respondent failed to find that the 2nd Respondent had failed to specify its express requirements in the Tender Document but introduced extraneous criteria at the due diligence stage.
35. The 1st Respondent breached Article 47 of the Constitution and the provisions of the Fair Administrative Action Act when it failed to consider relevant issues raised before it.
36. These issues were:
a. That the 3rd Respondent had disqualified the Applicant’s bid for providing client references that were not specific to CERs and VERs when it is the 3rd Respondent itself that failed to specify that the references it required were specific to CERs and VERs.
b. Failing to consider the Applicant’s assertions on breach of the Fair Administrative Action Act as well as Articles 47 and 227 of the Constitution by the 3rd Respondent in the manner in which the due diligence exercise was conducted by itself. Specifically:
i. Conducting a due diligence exercise via ambush- in that the Applicant was given minimal time (about 3 working hours) to make critical decisions and provide additional documents despite the 1st Respondent according enough time for the re-evaluation of bids. This was meant to instill confusion and fear in the Applicant.
iii. The 3rd Respondent offering the Applicant unreasonable timelines within which to furnish client references, despite the fact that the Applicant had met the requirements of the second part of MR 16 and not the first part on client references;
iv. The failure by the 3rd Respondent to disclose the due diligence criteria to be applied thereby condemning the Applicant unheard on the issue of past performancewhich it raised for the first time in the second Letter of Regret;
v. Refusal to clarify the issues raised by the Applicant in its Letter dated 19th September 2025 seeking clarity on these issues and on the irregular and illegal manner in which the due diligence exercise was being conducted. This even despite the 3rd Respondent sending an Email stating that it would respond to the Letter formally.
37. The 1stRespondent’s impugned Decision was also marred with unreasonableness and irrationality in:
a. Making a finding in its decision dated 28th August 2025 that the Applicant had met all the tender requirements and then reneging on the same in the impugned Decision without offering any reasonable basis for such back-tracking;
b. Making a finding at one paragraph of the impugned Decision that the consideration of the Applicant’s past performance by the 3rd Respondent was sub judice and ought not to have been considered in the Applicant’s bid’s disqualification and thereafter failing to invalidate the Applicant’s disqualification for this very reason but instead affirming that the Applicant’s non-performance was a reasonable consideration by the 3rd Respondent;
c. Making a finding based on issues and evidence not on record to wit, that the Applicant’s counsel had admitted in the proceedings in PPARB 90 of 2025, that it would have provided additional client references and that failing to do so by the Applicant meant that it did not have client references, when no such averments were made and is not captured anywhere in the record of Ruling dated 28th August 2025;
d. Against its own decision dated 28th August 2025, the Constitution, Act & Regulations, long established precedence (including its own) allowed and sanctioned the introduction of extraneous evaluation criteria, parameters, documents and reasoning without any basis or foundation from within the Tender Documents.
e. Admitting the Applicant was condemned unheard as pertains to past performance but still making a finding in favour of the 2nd and 3rd Respondents even with glaring abuse, unfairness, illegality and bias highlighted by the Applicant in its Request for Review.
f. On the face of all the irregularities highlighted by the Applicant, still making a finding in favour of the 2nd and 3rdRespondents to award the Tender to the Interested Party leading to loss of public money to the tune of Kshs. 400,000,000 (Kenya Shillings Four Hundred Million) contrary to Section 3 of the Act, Articles 10, 201 and 227 of the Constitution of Kenya.
g. Unequal and unreasonable application of the law (Article 227 and the Fair Administrative Action Act) by permitting unfairness and bias in the labelling the Applicant’s proof of capacity (200 CERs) as negligible without any disclosed parameters; and on the other hand turning a blind eye to the Interested Party’s which was also relatively minimal (in comparison to the Applicant’s) as all
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2. The application that is before the court for determination is the originating motion dated 4th November 2025 wherein the applicant is seeking the following reliefs;
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 27th October 2025 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- SALE-005-2025 for Sale of Certified Emissions Reductions (Re-Tender).
3) THAT this Honorable Court be pleased to issue an order of PROHIBITION, directed at the 2nd and 3rd Respondents, prohibiting them from implementing the Decision of the 1stRespondent dated 27th October 2025 in Public Procurement Administrative Review Board Application No. 85 of 2025, 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- SALE-005-2025 for Sale of Certified Emissions Reductions (Re-Tender).
4) 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 Contract in respect of Tender No. KGN- SALE-005-2025 for Sale of Certified Emissions Reductions (Re-Tender) illegally signed between the 2nd and 3rd Respondent and the Interested Party during the 14 days standstill period following the decision of the 1st Respondent dated 27th October 2025.
5) THAT pending the hearing and determination of the substantive Originating Motion, that this Honorable Court be pleased to issueAN INTERIM ORDER FOR STAY, to stay the Execution and/or Implementation of the Decision of the 1st Respondentdated 27th October 2025 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- SALE-005-2025 for Sale of Certified Emissions Reductions (Re-Tender).
6) THAT the costs of these proceedings to be provided for.
7) Such other, further, incidental and/or alternative relief(s) as this Honourable Court may deem just and expedient.
The Applicants case;
3. The applicant relies on the supporting Affidavit and the further Affidavit of Richmond Gatu Muriithi, the Director and Group Chief Executive Officer (CEO) of the Applicant.The Applicant was one of three bidders in the Tender, TENDER NUMBER - KGN-SALE-005-2025 - Tender For Sale Of Certified Emission Reductions (Cers) (Re-Tender) (Open International) The subject tender for the sale of Certified Emission Reductions (CERs) (commonly known as carbon credits) which was re-advertised by the 3rd Respondent (hereinafter alternatively referred to as “the Procuring Entity”) on or around 27th May 2025.
4. The Tender was initially scheduled to close on 17th June 2025 at 1400Hrs East African Time but was extended through Addendum No. 3 to close on 24thJune 2025 at 1400Hrs East African Time.
5. The Applicant elected to participate in the Tender by preparing its bid in accordance with the Invitation to Tender and Instructions to Tenderers (ITT) and Bid Data Sheet, as issued under the Tender Document and observing the relevant legal provisions.
6. The Tender was closed on 24th June 2025 at 1400Hrs East African Time and the tender opening took place on the same date from 1430Hrs East African Time, with three (3) bidders submitting bids by the Tender Closing date, as summarized in the Tender Opening Minutes prepared by the 3rd Respondent for the price opening that took place on 24th June 2025 at 1440Hrs.
7. Under the Tender Document, evaluation was to be conducted in two stages namely the Mandatory Preliminary Evaluation and Financial Evaluation stage.
8. By a Letter of Regret dated 1st August 2025, the General Manager – Supply Chain of the 3rd Respondent informed the Applicant that its bid was not successful.
9. The reason given on why the Applicant’s bid was not successful was that; “Your Firm did not meet the following mandatory requirements as stipulated in the tender document; (i) Did not submit any client references nor evidence of transfer of any CERs to a client or on behalf of a client as required in MR16. The evidence submitted of purchase for Voluntary offset of the bidder’s own business activities is largely an insider dealing which does not meet the requirement of transaction with a client.”
10. That precipitated the filing of Request for Review Application No 90 of 2025 dated 6th August 2025 before the 1st Respondent citing breaches of various provisions of the Public Procurement and Asset Disposal Act, 2015 (hereinafter, “the Act”), the Public Procurement and Asset Disposal Regulations, 2020 (hereinafter, “the Regulations”) and the Constitution of Kenya, 2010, especially Article 227.
11. Vide a Decision dated 28th August 2025, the Review Board’ allowed the Request for Review Application No. 90 of 2025, and made, inter alia, the following findings/observations; -
i. The Review Board established that the core issue in the Request for Review concerned the evaluation of the Applicant’s bid and specifically how the criteria Mandatory Requirement No. 16 was applied in evaluating and disqualifying the Applicant’s bid as non-responsive at the preliminary evaluation stage.
ii. The Review Board noted that the Applicant had been declared non-responsive for failure to provide client references or demonstrate any transfer of CERs to a client or on behalf of a client as required under MR 16. That instead, the Applicant had provided evidence of CERs purchased for voluntary offsetting of its own business activities, which the 2nd and 3rd Respondents considered as an internal transaction that did not amount to a client-related transaction as envisaged under MR 16.
iii. In examining the express wording of MR 16, the Review Board found that the same required bidders to demonstrate evidence of their past participation in emission reduction trading or transactions involving Certified Emission Reductions (CERs) or Verified Emission Reductions (VERs) and that to do so, a bidder was expected to provide documentation that showed it had successfully engaged in such transactions before and/or client references.
iv. The Review Board examined the use of the phrase “and/or” and held that this made the requirement disjunctive rather than conjunctive. It therefore held that a bidder could satisfy the requirement by producing evidence under the first part alone, or under the second part alone, or under both. That compliance was therefore not limited to fulfilling both conditions simultaneously; fulfilling one of them was sufficient for a bidder to meet the requirement under MR 16. (Refer to paragraph 110 of the 1st Respondent’s Ruling dated 28th August 2025).
v. The Review Board found that with regard to the first part, the requirement envisaged the submission of Client References in the form of letters, references, or confirmations from clients to whom it had successfully traded or transacted Certified Emission Reductions (CERs/Voluntary Emission Reductions (VERs) in the past demonstrating that the bidder had participated in emission reduction transactions on behalf of, or in relation to, external parties. (Refer to paragraph 111 of the 1stRespondent’s Ruling dated 28th August 2025).
vi. On the second part, the Review Board found that the requirement envisaged the submission of evidence of CER transfer, voluntary cancellation certificates, or certificates from successful purchase of CERs. That these were formal records or certificates issued upon the transfer or cancellation of CERs/VERs demonstrating that the bidder had completed such transactions successfully. (Refer to paragraph 112 of the 1st Respondent’s Ruling dated 28th August 2025).
vii. The Review Board expressly held that MR 16 was therefore not conjunctive for using the expression “and/or” which denotes flexibility and that if the intent was to make it conjunctive, the requirement would have been drafted with the word “and” only, thereby compelling bidders to provide both client references and transaction certificates without exception. (Refer to paragraph 116 of the 1st Respondent’s Ruling dated 28thAugust 2025).
viii. The Review Board, however, noted and recognized that MR 16 could be construed conjunctively and found from examining the 2nd and 3rd Respondent’s responses, clarifications as well as the addendum creating MR 16, that the net effect was that 2nd and 3rd Respondents had orchestrated an ambiguity. The Review Board held that being the authors of the documents relied in the tendering process by the Applicant, as per the contra-proferentemrule, the ambiguity could not be visited upon the Applicant.
ix. The Review Board having already established that the requirement could be met disjunctively, examined the Applicant’s bid documents and held that “Based on the documents submitted, the Board finds no doubt that the Applicant satisfied Mandatory Requirement No. 16 with respect to its second part, given that the requirement is interpreted disjunctively, as explained above.”
x. The Review Board thereafter noted that the present tender provided for only two stages of evaluation; preliminary evaluation and financial evaluation, excluding technical evaluation. Consequently, it recommended that the 2ndand 3rd Respondents conduct a due diligence on the successful bidder under Section 83 of the Act.
xi. The Review Board noted that while Section 83 of the Act is not framed in mandatory terms, that the Tender Document at Clause 14 of the Bid Data Sheet contemplates due diligence at the discretion of the 3rdRespondent. It held that conducting the due diligence would be prudent to guarantee the quality of services, particularly where public interest is concerned, and would serve to ensure that the procurement proceedings are carried out in accordance with the principles of transparency and cost effectiveness as per Article 227.
xii. The Review Board in conclusion held that having considered the parties’ submissions and evaluated all the evidence presented that the evaluation of the Applicant’s bid was not conducted in accordance with the provisions of Section 80 (2) of the Act, read together with other applicable procurement laws and the tender document. Consequently, it allowed the Applicant’s Request for Review dated 6th August 2025 and rendered the orders as below.
xiii. The 1st Respondent ordered that the 2nd Respondent be and is hereby directed to re-convene the Evaluation Committee and re-evaluate all tenders at the preliminary evaluation stage afresh in accordance with the provisions of the Tender Document, the Act, the Regulations 2020, the Constitution and taking into consideration the findings of the Board herein.
xiv. The 1st Respondent ordered that the 2nd and 3rdRespondents are hereby directed to proceed with and conclude the tender proceedings concerning Tender No. KGNSALE-005-2025 for Sale of Certified Emissions Reductions (Re-Tender) including the issuance of an award within 21days from the date thereof.
xv. The 1st Respondent ordered that in view of the fact that the procurement process is not complete, that each party bear its own costs in the Request for Review.
12. It is the Applicant’s case that on 15th September 2025, 3 days before the 18th September 2025 deadline after which the 21 days given by the Review Board would have lapsed to comply with its directions the 3rdRespondent (also referred to as “the Procuring Entity”) wrote a letter whereby it declared their intention to carry out due diligence on the Applicant.
13. The letter stated as follows:
“…..In light of the above, you are hereby notified of the Tender Evaluation Committee’s intention to carry out due diligence on your firm for purposes of confirming and verifying your qualifications and determining whether your firm is qualified to be awarded the contract. The proposed date for this exercise is Wednesday 17th September 2025 10:00AM, at your business premises.”
14. On 17th September 2025, a team from the Procuring Entity visited the Applicant’s offices for the site visit as part of the due diligence exercise.
15. At the conclusion of the visit, the 3rd Respondent verbally requested that the Applicant sends them a structured invoicing format which the Applicant later sent.
16. On the same day of the site visit, 17th September 2025 at 2:57 PM, the Procuring Entity sent an Email to the Applicant as reproduced verbatim below:
“Following the due diligence exercise carried out on your firm earlier by our team, you are requested to avail the following information/documents as discussed:
1. Financial Capacity & Audited Accounts- Audited financial statements for at least last 2 years;
2. Financial Credit Lines/Access to Credit- An assurance letter stating their intended process of sale of CER to demonstrate commitment to meeting their financial obligation.
3. ESG Profile and Community Impact Commitment- To provide a brief on how they are undertaking and planning to undertake ESG frameworks.
4. Past Experiences - Provision of evidence of past professional experience through testimonials from previous assignments undertaken.
17. These will facilitate completion of the evaluation exercise within the required timelines hence we request you to avail the documents by tomorrow 18th September 2025 at 9:30 AM.”
18. Noting that it only had about 3 working hours to provide the document requested by the 3rd Respondent, the Applicant immediately responded to the 3rd Respondent’s requests through its Letter dated 17th September 2025 wherein it:
a. Provided documents in proof of past experience by listing various projects executed as well as three (3) Testimonials from Clients with whom it has had previous assignments undertaken as requested, noting that the Email did not request client references specific to CERs or VERs but ‘past experience- provision of evidence of past professional experience.
b. Provided its ESG Strategy Profile and Community Impact Commitment strategy as requested;
c. Provided a Proposed Payment plan as well as accompanying Proposed Invoices as had been requestedin the due diligence exercise; and
d. Informed that it had furnished its audited accounts physically to the 3rd Respondent’s office.
19. The Applicant thereafter wrote a letter to the 3rdRespondent dated 19th September 2025 in which it sought clarification on the conduct of the due diligence exercise bearing in mind the fast-approaching deadline and that the Ruling and directions of the 1st Respondent did not make it mandatory to conduct the same.
20. The Applicant’s letter questioned the legality of the exercise vis a vis Section 83 of the Act and the Tender Documents.
21. In the said Letter, the Applicant raised its reservations that due diligence is meant to be based on the evaluation criteria as per the tender document and that the documents/information requested by the Procuring Entity were not part of the tender and therefore would not constitute information that is subject to the due diligence exercise purporting to be conducted by themselves.
22. The Letter questioned that the request for the documents amounted to creation of a fresh evaluation criteria in contravention to the law and resulted in unfairness on the bidder as it is not clear what due diligence criteria the Procuring Entity would be applying in examining the same.
23. The 3rd Respondent responded vide an Email sent on 19thSeptember 2025 whereby it acknowledged receipt of the documents and the Applicant’s Letter. The 3rd Respondent indicated that it would respond to the Applicant’s Letter officially and meanwhile stated that the due diligence documentary requirements including on specific experience must have been clarified during the due diligence exercise. Notably, the Procuring Entity was referring to the visit on 17th September 2025, which was 2 days before the Applicant’s Letter seeking clarification making it illogical and unreasonable that the alleged clarifications purportedly rendered during the visit would go to resolve the issues that were to be raised by the Applicant 2 days later in its Letter.
24. The Email also informed the Applicant that the Procuring Entity would be seeking an extension to the 21-day re-evaluation period from the 1st Respondent, but that nevertheless they expect a conclusion of the exercise soon.
25. This extension was sought on 19th September 2025, which was 1 day after the lapse of the 21-day deadline.
26. The 2nd and 3rdRespondents filed a Notice of Motion Application dated 18thSeptember 2025 with the 1st Respondent, seeking orders for extension of the time by 14 days for them to proceed with and conclude the tender proceedings as per order 3 of the directions of the 1st Respondent.
27. They also requested a grant of leave for due diligence to be conducted during such extended period.
28. Vide a Ruling dated 26th September 2025, the Review Board allowed the 2nd and 3rd Respondents’ Notice of Motion and granted them an extension of 14 days from 18th September 2025 to proceed with and conclude the tender proceedings including issuance of the Letter of Award.
29. Despite being afforded this extension, the 2nd and 3rdRespondents never responded to the clarifications sought on the issues raised in the Applicant’s Letter dated 19th September 2025.
30. Instead, the 2nd Respondent issued the Applicant with a Letter of Regret dated 29th September 2025 informing the Applicant that:
a. “Based on the due diligence outcome, you failed to meet requirements on the specific/relevant experience, under MR 16 as you did not demonstrate previous successful participation in Emission Reduction trading/transactions of CER’s or VER’s as listed below:
i. While reviewing the previous experience and your performance history it was noted that you were awarded Tender No.KGN-SALE-001-2024 for the Sale of 4,578,148 Certified Emission Reductions (CERs) by KenGen, valued at USD 32,047,036.00, on 7th May 2024. Despite being granted two extensions under the contract, and a stay order by the High Court you failed to honour its contractual obligations.
ii. The current tender for 6,384,398 CERs incorporates the 4,578,148 CERs previously terminated for non-performance by your firm. This creates a direct and material nexus between your past failure and the subject matter of the present procurement.
iii. In your submission you referred to a past transaction involving procurement of 200 CERs at a total USD 180 (KES 23,220) for internal business use. It was established that while this demonstrated limited participation in the carbon market, the volume and scale of the transaction are negligible compared to the magnitude of the current tender involving 6. 38 million CERs. This was therefore determined that such a transaction did not provide credible evidence of capacity to undertake a contract of this scale.
iv. In addition, you did not furnish any new or independent client references demonstrating successful performance of comparable contracts.
b. The bidder awarded the contract is JV of Munja Trading Limited and Marwil Energy Holding AS at the total price of USD19,637,758.00 (Say United States Dollars Nineteen Million, Six Hundred and Thirty-Seven Thousand, Seven Hundred and Fifty-Eight) for 6,384,398 CER’s.”
31. Being aggrieved by this decision of the 2nd Respondent the Applicant on 6th October 2025 filed Review Application No. 97of 2025 before the 1st Respondent, challenging the decision of the 2nd Respondent as contained in the 2nd Letter of Regret and seeking the following orders:
a. That the 2nd and 3rd Respondents’ decision awarding Tender Number: KGN-SALE-005-2025 Tender for Sale of Certified Emissions Reductions (CERs) (Re-Tender) to the Interested Party be annulled and set aside;
b. That the 2nd and 3rd Respondents’ Letter of Regret dated 1stAugust 2025 notifying the Applicant that it had not been successful in Tender Number: KGN-SALE-005-2025 Tender for Sale of Certified Emissions Reductions (CERs) (Re-Tender) and notifying the successful bidder as the Interested Party be annulled and set aside;
c. A declaration that the Procuring Entity failed to evaluate the Applicant’s bid at the mandatory preliminary evaluation stage in accordance with the criteria and procedures under the Tender Document and the provisions of the Act at Sections 79(1), 80(2) and 86(1) and the provisions of Regulation 74(1) of the Regulations;
d. The Procuring Entity be directed to re-admit the Applicant’s bid as having met all mandatory requirements and proceed to undertake the second stage of evaluation, namely, financial evaluation, in line with pages 12 and 13 of the Tender Document
e. The 2nd and 3rd Respondents be directed to proceed with the procurement to its logical conclusion by making an award to the responsive highest priced bidder in line with the itsfindings of the re-evaluation of the Applicant’s bid at the preliminary evaluation stage where the Applicant’s bid was unfairly disqualified;
f. The 2nd and 3rd Respondents be compelled to pay the Applicant the costs arising from/and incidental to this Application; and
g. The Review Board to make such further orders as it may deem fit and appropriate in ensuring that the ends of justice are fully met in the circumstances of this Request for Review.
32. Vide a Ruling dated 27th October 2025 (hereinafter referred to as “the impugned Decision”), the 1st Respondent rendered its decision thereby dismissing the Applicant’s Request for Review.
33. The Applicant is apprehensive that due to the time sensitive nature of this matter and the conduct of the 2nd and 3rdRespondent that 2nd and 3rd Respondent and the Interested Party may have illegally entered into the procurement contract or intend to do so before the lapse of the standstill period afforded to the Applicant under Section 175 (1) of the Act to pursue the Judicial Review reliefs sought herein and before the conclusion of this matter, thus the prayer for certiorari to quash any such illegally signed contract and the prayer for interim order of stay and prohibition to bar the 2nd and 3rd Respondents from implementing the decision of the 1st Respondent pending the hearing and determination of the substantive Originating Motion.
34. The Applicant is aggrieved by the 1st Respondent's impugned Decision and seeks to invoke the supervisory jurisdiction of this Honorable Court on grounds that the impugned Decision is tainted with irrationality and illegality in breach of the provisions of the Act as outlined hereunder:
a. The 1st Respondent acted ultra vires Sections 173 of the Act as read together with Sections 60 and 70 (4) of the same by purporting to expand/amend the express provisions of the Tender Document- Clause 14 of the Bid Data Sheet- to include:
i. A requirement that a bidder provide additional client references at the due diligence stage;
ii. A requirement that a bidder must provide evidence of previous participation in transactions involving CERs and VERs of a substantial capacity close enough to the capacity intended to be disposed in the subject Tender; and
iii. Past performance of a bidder at due diligence despite the same not being a mandatory or technical requirement in the Tender Document.
b. Disregard of Sections 80 (2) and (3) of the Act by defining Clause 14 of the Bid Data Sheet to include the requirements as elaborated above and in effect amending the tender documents to include extraneous evaluation criteria.
c. The 1st Respondent erroneously failed to consider and appreciate the provisions of Section 83 of the Act by:
i. Failing to consider that the 3rd Respondent unfairly introduced extraneous due diligence criteria that were not borne from the Tender Document;
ii. Failing to consider the Applicant’s assertions that due diligence involved the strict confirmation and verification of documents already supplied by a bidder but not the imposition of new requirements and request for additional documents from a bidder.
d. The 1st Respondent also erroneously failed to consider Section 70 (3) of the Act which requires that tender documents should have sufficient information to allow fair competition among bidders. The 1st Respondent failed to find that the 2nd Respondent had failed to specify its express requirements in the Tender Document but introduced extraneous criteria at the due diligence stage.
35. The 1st Respondent breached Article 47 of the Constitution and the provisions of the Fair Administrative Action Act when it failed to consider relevant issues raised before it.
36. These issues were:
a. That the 3rd Respondent had disqualified the Applicant’s bid for providing client references that were not specific to CERs and VERs when it is the 3rd Respondent itself that failed to specify that the references it required were specific to CERs and VERs.
b. Failing to consider the Applicant’s assertions on breach of the Fair Administrative Action Act as well as Articles 47 and 227 of the Constitution by the 3rd Respondent in the manner in which the due diligence exercise was conducted by itself. Specifically:
i. Conducting a due diligence exercise via ambush- in that the Applicant was given minimal time (about 3 working hours) to make critical decisions and provide additional documents despite the 1st Respondent according enough time for the re-evaluation of bids. This was meant to instill confusion and fear in the Applicant.
iii. The 3rd Respondent offering the Applicant unreasonable timelines within which to furnish client references, despite the fact that the Applicant had met the requirements of the second part of MR 16 and not the first part on client references;
iv. The failure by the 3rd Respondent to disclose the due diligence criteria to be applied thereby condemning the Applicant unheard on the issue of past performancewhich it raised for the first time in the second Letter of Regret;
v. Refusal to clarify the issues raised by the Applicant in its Letter dated 19th September 2025 seeking clarity on these issues and on the irregular and illegal manner in which the due diligence exercise was being conducted. This even despite the 3rd Respondent sending an Email stating that it would respond to the Letter formally.
37. The 1stRespondent’s impugned Decision was also marred with unreasonableness and irrationality in:
a. Making a finding in its decision dated 28th August 2025 that the Applicant had met all the tender requirements and then reneging on the same in the impugned Decision without offering any reasonable basis for such back-tracking;
b. Making a finding at one paragraph of the impugned Decision that the consideration of the Applicant’s past performance by the 3rd Respondent was sub judice and ought not to have been considered in the Applicant’s bid’s disqualification and thereafter failing to invalidate the Applicant’s disqualification for this very reason but instead affirming that the Applicant’s non-performance was a reasonable consideration by the 3rd Respondent;
c. Making a finding based on issues and evidence not on record to wit, that the Applicant’s counsel had admitted in the proceedings in PPARB 90 of 2025, that it would have provided additional client references and that failing to do so by the Applicant meant that it did not have client references, when no such averments were made and is not captured anywhere in the record of Ruling dated 28th August 2025;
d. Against its own decision dated 28th August 2025, the Constitution, Act & Regulations, long established precedence (including its own) allowed and sanctioned the introduction of extraneous evaluation criteria, parameters, documents and reasoning without any basis or foundation from within the Tender Documents.
e. Admitting the Applicant was condemned unheard as pertains to past performance but still making a finding in favour of the 2nd and 3rd Respondents even with glaring abuse, unfairness, illegality and bias highlighted by the Applicant in its Request for Review.
f. On the face of all the irregularities highlighted by the Applicant, still making a finding in favour of the 2nd and 3rdRespondents to award the Tender to the Interested Party leading to loss of public money to the tune of Kshs. 400,000,000 (Kenya Shillings Four Hundred Million) contrary to Section 3 of the Act, Articles 10, 201 and 227 of the Constitution of Kenya.
g. Unequal and unreasonable application of the law (Article 227 and the Fair Administrative Action Act) by permitting unfairness and bias in the labelling the Applicant’s proof of capacity (200 CERs) as negligible without any disclosed parameters; and on the other hand turning a blind eye to the Interested Party’s which was also relatively minimal (in comparison to the Applicant’s) as all
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