' '' BRIEF BACKGROUND;
1. On 19thAugust 2025 the Public Procurement Administrative Review Board issued a decision in Public Procurement Administrative Review Board Application No. 85 of 2025, Chint Meters and Electric Kenya Company Limited vs. The Chief Executive Officer/Managing Director, Kenya Power and Lighting Company PLC, Kenya Power and Lighting Company PLC, Magnate Ventures Limited, House of Procurement Limited and Abcos Industrial Limited, in respect of Tender No. KP1/9A.3/RT/14/24-25 for Supply of Single Phase Smart Meters (Local Manufacturers and Assemblers).That has triggered the filing of the consolidated suits.
2. Through a consent dated 17th September 2025 the parties herein agreed to consolidate the above suits with JR E262 of 2025 being the lead file and further agreed that the Court shall be at liberty to deliver one Judgment in the consolidated suit.
3. Following are the reliefs sought in the various suits:
In JR. NO. E262 OF 2025
Through the application dated 25th August 2025 the applicant seeks the following ORDERS;
1) 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 19th August 2025 in Public Procurement Administrative Review Board Application No. 85 of 2025, Chint Meters and Electric Kenya Company Limited vs. The Chief Executive Officer/Managing Director, Kenya Power and Lighting Company PLC, Kenya Power and Lighting Company PLC, Magnate Ventures Limited, House of Procurement Limited and Abcos Industrial Limited, in respect of Tender No. KP1/9A.3/RT/14/24-25 for Supply of Single-Phase Smart Meters (Local Manufacturers and Assemblers).
2) 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 1st Respondent dated 19th August 2025 in Public Procurement Administrative Review Board Application No. 85 of 2025, Chint Meters and Electric Kenya Company Limited vs. The Chief Executive Officer/Managing Director, Kenya Power and Lighting Company PLC, Kenya Power and Lighting Company PLC, Magnate Ventures Limited, House of Procurement Limited and Abcos Industrial Limited, in respect of Tender No. KP1/9A.3/RT/14/24-25 for Supply of Single-Phase Smart Meters (Local Manufacturers and Assemblers).
3) THAT this Honorable Court be pleased to issue an order of PROHIBITION, directed at the 2nd and 3rd Respondents, prohibiting them from Re-Advertising, Re-Tendering and/or Issuing Fresh Invitations for Sealed Tenders or Bids for the quantities of meters under Category 1, 2 and 3 in Tender No. KP1/9A.3/RT/14/24-25 for Supply of Single-Phase Smart Meters (Local Manufactures and Assemblers) through Limited Tender Open to Local Meter Manufacturers and Assemblers and/or through any other Method of Procurement.
4) THAT in the alternative to Order No. 3, this Honorable Court be pleased to issue an order of PROHIBITION, directed at the 2nd and 3rd Respondents, prohibiting them from Re-Advertising, Re-Tendering and/or Issuing Fresh Invitations for Sealed Tenders or Bids in Respect to the quantities of meters under Lot 1 of Category 1 and Lot 4 of Category 2 of Tender No. KP1/9A.3/RT/14/24-25 for Supply of Single-Phase Smart Meters (Local Manufactures and Assemblers) through Limited Tender Open to Local Meter Manufacturers and Assemblers and/or through any other Method of Procurement.
5) 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 Public Procurement Administrative Review Board (the 1stRespondent) Dated 19th August 2025 in Public Procurement Administrative Review Board Application No. 85 of 2025, Chint Meters and Electric Kenya Company Limited vs. The Chief Executive Officer/Managing Director, Kenya Power and Lighting Company PLC, Kenya Power and Lighting Company PLC, Magnate Ventures Limited, House of Procurement Limited and Abcos Industrial Limited, in respect of Tender No. KP1/9A.3/RT/14/24-25 for Supply of Single-Phase Smart Meters (Local Manufacturers and Assemblers).
6) THAT pending the hearing and determination of the substantive Originating Motion, that this Honorable Court be pleased to issue An Interim Order For Injunction, to restrain the 2nd and 3rd Respondents from Re-Advertising, Re-Tendering and/or Issuing Fresh Invitations for Sealed Tenders or Bids for the quantities of meters under Category 1, 2 and 3 in Tender No. KP1/9A.3/RT/14/24-25 for Supply of Single-Phase Smart Meters (Local Manufactures and Assemblers) through Limited Tender Open to Local Meter Manufacturers and Assemblers and/or through any other Method of Procurement.
7) THAT in the alternative to Order No. 6, that pending the hearing and determination of the substantive Originating Motion, this Honorable Court be pleased to issue AN INTERIM ORDER FOR INJUNCTION, to restrain the 2nd and 3rd Respondents from Re-Advertising, Re-Tendering and/or Issuing Fresh Invitations for Sealed Tenders or Bids in Respect to the quantities of meters under Lot 1 of Category 1 and Lot 4 of Category 2 of Tender No. KP1/9A.3/RT/14/24-25 for Supply of Single-Phase Smart Meters (Local Manufactures and Assemblers) through Limited Tender Open to Local Meter Manufacturers and Assemblers and/or through any other Method of Procurement.
8) THAT the costs of these proceedings to be provided for.
9) Such other, further, incidental and/or alternative relief(s) as this Honourable Court may deem just and expedient.
In JR 264 OF 2025
Through the application dated 28.8.25 the applicant seeks the following ORDERS;
1) THAT this Honorable Court be pleased to grant an Order of CERTIORARI to remove into the High Court for purposes of quashing the Decision of the 1st Respondent in Application No.85 of 2025 to cancel and set aside the Notification of Award of Tender in Tender No. TENDER NO. KP1/9A.3/RT/14/24-25 FOR SUPPLY OF SINGLE PHASE SMART METERS. (LOCAL MANUFACTURERS AND ASSEMBLERS);
2) THAT this Honorable Court be pleased to issue an order of PROHIBITION to prohibit the 2nd and 3rd Respondentswhether by themselves, its servants, agents or otherwise howsoever from giving effect to, enforcing, or in any way implementing the impugned Decision on Application Number 85 of 2025 delivered on the 19th August 2025 by the 1stRespondent;
3) THAT this Honorable Court be pleased to grant an order ofPROHIBITION to prohibit the 2nd and 3rd Respondents from re-tendering or advertising afresh the tender which relates to, TENDER NO. KP1/9A.3/RT/14/24-25 FOR SUPPLY OFSINGLE PHASE SMART METERS. (LOCALMANUFACTURERS AND
4) ASSEMBLERS) until this Application herein is heard and determined in its entirety;
5) THAT this Honorable Court be pleased to issue an Order of Declaration to effect that the advertisement, evaluation and award of TENDER NO. KP1/9A.3/RT/14/24-25 For Supplyof Single Phase Smart Meters. (Local Manufacturers andAssemblers) was done in conformity with the Constitution of Kenya 2010, Procurement Laws, Regulations as well as the process was fair, transparent, cost-effective and lawful as per the laid down Procedures.
6) The cost of this Application be borne by the 1st Respondent.
7) Any other Order that is just and equitable.
In JR. NO. E271 OF 2025
Through the application dated 1.9.25 the applicant seeks the following ORDERS;
1) THAT the honourable court does grant an order of certiorari to quash the irregular decision of the 1st Respondent herein, Public Procurement Administrative Board of 19th August, 2025 canceling and setting aside the award in lot 1 Category 1 in Tender No. KP 1/9A.3RT1424-25- Supply of single phase smart meters (Local Manufacturers and Assemblers) issued to Smart Meter Technology Limited by the 2nd Respondent.
2) THAT the honourable court does grant an order of certiorari to quash the irregular decision of the 1st Respondent herein, Public Procurement Administrative Board of 19th August, 2025 canceling and setting aside the awards of lots 1, 2, 3 and 4 with respect to Category 2 in Tender No. KP 1/9A.3RT1424-25- Supply of single phase smart meters ( Local Manufacturers and Assemblers) issued to East Africa Meter Company Limited, Hexing Technology Company Limited, Inhemeter Africa Company Limited and Smart Meter Technology Limited by the 2nd Respondent.
3) THAT the honourable court does grant an order of certiorari to quash the irregular decision of the 1st Respondent herein, Public Procurement Administrative Board of 19th August, 2025 canceling and setting aside the awards of lots 1, 2 and 3 with respect to Category 3 in Tender No. KP 1/9A.3RT1424-25- Supply of single phase 99 smart meters ( Local Manufacturers and Assemblers) issued to Abcos Industrial Ltd, Magnate Ventures Ltd and House of Procurement Limited respectively by the 2nd Respondent.
4) THAT the honourable court does grant an order of certiorari to quash the irregular decision of the 1st Respondent herein, Public Procurement Administrative Board of 19th August, 2025 canceling and setting aside Category 1, 2 and 3 in Tender No. KP 1/9A.3RT1424-25- Supply of single phase smart meters ( Local Manufacturers and Assemblers) .
5) THAT the honourable court does grant an order of certiorari to quash the irregular decision of the the 1st Respondent herein, Public Procurement Administrative Board of 19th August, 2025 directing the 3rd respondent herein to re-tender the quantities of meters under Category 1, 2 and 3 afresh while taking consideration the findings of the 1st Respondent in its decision of 19th August, 2025.
6) THAT the honourable court does grant an order of prohibition to prohibit the 3rd and 4th Respondents from giving effect to the impugned decision of 19th August, 2025 by the 1st respondent.
7) THAT the costs of this application be born by the 1st and 2ndRespondents.
8) Such other order or direction as shall be considered fit for the Court to grant in the circumstances of the case.
JR. NO. E262 of 2025:
4. Having laid out the foregoing foundation, this court delves into the Applicant’s case where it argues that it was the successful bidder in Lot 1 of Category 1 and Lot 4 of Category 2 of Tender No. KP1/9A.3/RT/14/24-25 for Supply of Single-Phase Smart Meters (Local Manufacturers and Assemblers) floated by the 2nd Respondent (hereinafter, the “subject tender”).
5. It is its case that the 3rd Respondent, who is the Procuring Entity of the subject tender, published on its website www.kplc.co.ke an advertisement regarding its intention to procure the subject tender through limited tender, pursuant to Section 102(2)(c) and (d) of the Public Procurement and Asset Disposal Act, Chapter 412C of the Laws of Kenya (hereinafter, the “Procurement Act”) read with Regulation 89(8) of the Public Procurement and Asset Disposal Regulations, 2020.
6. Subsequently, the 3rd Respondent restricted invitation for sealed bids for the subject tender to only local manufacturers/assemblers from interested eligible bidders by way of advertisement on its website, using the 2ndRespondent’s electronic-procurement system known as SAP Tendering Portal on the 2nd Respondent’s website. The 2nd Respondent used the restricted tendering method of procurement.
7. Three (3) Addenda were issued amending the provisions of the tender being:
i. Addendum No.1 dated 13th June 2025;
ii. Addendum No.2 dated 16th June 2025; and
iii. Addendum No.3 dated 20th June 2025.
8. The subject tender comprised of a total of eight (8) lots distributed in three (3) Categories as follows:
i. Category 1 – Local Manufacturers/Assemblers with ready stocks for immediate delivery within 21 days.
a) Lot 1 required one to bid for 167,000 single phase smart meters
ii. Category 2 – Local Manufacturers/Assemblers who have successfully supplied meters to completion to KPLC or any public entity in Kenya before.
a. Lot 1 required one to bid for 100,000 single phase smart meters
b. Lot 2 required one to bid for 85,000 single phase smart meters
c. Lot 3 required one to bid for 50,000 single phase smart meters
d. Lot 4 required one to bid for 35,000 single phase smart meters
iii. Category 3 – All local meter Manufacturers/Assemblers
a. Lot 1 required one to bid for 100,000 single phase smart meters
b. Lot 2 required one to bid for 65,000 single phase smart meters
c. Lot 3 required one to bid for 35,000 single phase smart meters
9. THAT Single Phase Smart Meters are modern devices used to measure and record the consumption of electrical energy in a single-phase electrical system. It is a type of advance metering infrastructure technology that enables utilities to remotely monitor and manage electricity usage. The subject tender in procuring single phase smart meters aims at providing accurate, real-time information on electricity consumption, ensuring that bills precisely reflect actual usage. This transparency fosters trust between consumers and the 3rd Respondent, eliminating the frustration associated with unpredictable bills.
10. The Applicant obtained the Tender Document by downloading the same from the 3rd Respondent’s website that detailed the requirements, tendering procedures and applicable guidelines, among others.
11. It completed its bid as required under the Tender Document and thereafter, submitted its bid with respect to all the eight (8) lots as distributed in the three (3) Categories of the subject tender before the close of the extended tender submission deadline of 1st July 2025.
12. The tender opening took place on 1stJuly 2025 when the applicants officer argues that he noted from the tender opening process, that the 4th Respondent did not submit its bid via the 3rd Respondent’s E-procurement system/portal as required under Clause 1.3 of the Invitation for Tender at page 7 of the Tender Document read with ITT 20 of Section II – Tender Data Sheet (TDS) at page 31 of the Tender Document.
13. A letter of Notification of Intention to Award dated 17th July 2025, was issued by the 2nd Respondent informing the Applicant that it had been awarded Lot 1 of Category 1 and Lot 4 of Category 2 of the subject tender
14. The 4th Respondent herein felt aggrieved by the decision of the 2nd Respondent as communicated vide the Notification of Award and on the 29th July 2025, the 4th Respondent lodged a Request for Review dated 27th July 2025 before the 1stRespondent seeking the following orders:
i. That the 1st Respondent annuls and quashes the impugned procurement proceedings for non-compliance with the cited provisions of the Constitution, the statute, subsidiary law and the tender document.
ii. That the 4th Respondent annuls and quashes the letter of intention to award dated 17.7.2025 and restrains the procuring entity from issuing award letters and contracts to the successful bidders.
iii. That costs be awarded to the 4th Respondent.
In the alternative;
iv. That the 1st Respondent be pleased to review or direct the independent re-evaluation of the 4th Respondent’s bid by a fresh tender evaluation committee.
v. That the 1st Respondent visits the local plants for all the successful bidders and Applicant to ascertain that they are local manufacturers and assemblies.
vi. Such other orders that the 1st Respondent may deem just and expedient.
15. That the grounds for the 4th Respondent’s dissatisfaction with the 2nd and 3rd Respondent’s decision contained in the Notification of Award and the responses thereto are as adumbrated in the following pleadings that the parties hereto filed before the 1st Respondent, namely;
i. The 4th Respondent’s Request for Review dated 27th July 2025 together with the Applicant’s Supporting Affidavit sworn by Gan Zemin on 27th July 2025, copies whereof are annexed hereto and marked as ETO-7(a) and ET0-7(b) respectively.
ii. The 2nd and 3rd Respondents’ Memorandum of Response dated 4th August 2025, a copy whereof is annexed hereto and marked as ETO-8.
iii. The 3rd Interested Party’s Memorandum of Response and Notice of Preliminary Objection both dated 1stAugust 2025, copies whereof are annexed hereto and collectively marked as ETO-9.
iv. The 4th Respondent’s Supplementary Affidavit sworn by Gan Zemin on 4th August 2025, a copy whereof is annexed hereto and marked as ETO-10
v. Applicant’s Preliminary Objection dated 5th August 2025, a copy whereof is annexed hereto and marked as ETO-11.
vi. The 4th Interested Party’s Replying Affidavit sworn by Zhou Xiping on 7th August 2025, a copy whereof is annexed hereto and marked as ETO-12
vii. The 1st Interested Party’s Memorandum of Response dated 7th August 2025, a copy whereof is annexed hereto and marked as ETO-13
viii. The Applicant’s Replying Affidavit sworn by Emmanuel Tongi Oroo on 8th August 2025, Affidavit sworn by Josphat Atanga Nyabate on 8th August 2025, and Affidavit sworn by Dennis Muthenya on 8th August 2025, copies whereof are annexed hereto and marked as ETO-14(a), ETO-14(b) and ETO-14(c) respectively.
ix. The 2nd Interested Party’s Replying Affidavit sworn by Benard Odote on 8th August 2025, a copy whereof is annexed hereto and marked as ETO-15.
x. The 4th Respondent’s Written Submissions dated 10thAugust 2025, a copy whereof is annexed hereto and marked as ETO-16.
xi. The 2nd and 3rd Respondents Written Submissions together with a list of authorities filed on 12th August 2025, copies whereof are annexed hereto and collectively marked as ETO-17.
xii. The Applicant’s Written Submissions dated 13th August 2025 together with a list and bundle of authorities, copies whereof are annexed hereto and collectively marked as ETO-18
xiii. THAT the 1st Respondent after hearing all parties hereto, rendered its Decision dated 19th August 2025 (hereinafter, “impugned Decision”). In the impugned Decision, the 1st Respondent made, inter alia, the following findings and/or observations; -
i) The 1st Respondent found that the Applicant’s claim of want of authority on the part of the 4th Respondent to institute the Request for Review proceedings before the 1st Respondent, is not a pure question of law, as its determination necessitates examining evidence to establish whether such authority existed, and does not therefore meet the threshold of a pure point of law, and cannot therefore be determined at the preliminary objection stage (Refer to Paragraph 123 of the impugned Decision).
ii) The 1st Respondent held that it has jurisdiction to consider legal issues raised by the Applicant and the 1stto 4th Interested Parties subject to limitation and that they cannot introduce fresh factual matters or seek remedies beyond those sought by the 4th Respondent (Refer to Paragraph 136 of the impugned Decision).
iii) The 1st Respondent held that the 4th Respondent was not a tenderer in respect of all lots under Categories 1 and 2, and that the 1st Respondent shall confine its determination to Category 3 where the 4th Respondent participated as a tenderer, and shall accordingly down its tools with respect to Categories 1 and 2, while at the same time stating that it retains jurisdiction to examine mode of award as pertains Category 1, 2 and 3 and relied on its determination in PPARB Application No. 59 of 2025 Tramex Mediquip Ltd v Chief Executive Officer, Kenya Medical Supplies Agency and 3 Others which did not in any event support its reasoning (Refer to Paragraph 146 and 190 of the impugned Decision).
iv) The 1st Respondent found that the 4th Respondent complied with Section 167(1) of the Procurement Act which required the 4th Respondent to plead or claim to have suffered, or at risk of suffering, loss or damage as a result of a breach of a duty imposed on a procuring entity by the Procurement Act or its Regulations (Refer to Paragraph 160 and 236 of the impugned Decision).
v) The 1st Respondent, in consideration of the Applicant’s objection to aspects of the Request for Review before the 1st Respondent that were time barred, consolidated the same to two core issues, one being mode of award and its application, then proceeded to address the question when the Applicant became aware of the alleged breach by linking the same to the date of notification, and found that the concerned aspects of the Request for Review claimed to be time barred were not time barred (Refer to Paragraphs 161, 169 to 173 and 236 of the impugned Decision).
vi) The 1st Respondent considered the provisions of Section 67 of the Procurement Act and the question of confidential information, and in noting that the 4thRespondent did not annex any document that can be deemed confidential within the meaning of the Procurement Act, found that the 4th Respondent did not rely on any confidential document under Section 67 of the Procurement Act (Refer to Paragraphs 176 to 185 and 237 of the impugned Decision).
vii) The 1st Respondent found that the non-joinder of the Applicant as an Interested Party is not fatal given that it was not a successful tenderer under Category 3 which is the primary focus of the Request for Review before the 1st Respondent (Refer to Paragraph 192 and 235 of the impugned Decision).
viii) The 1st Respondent found that it has jurisdiction over Category 2 to the extent that the mode of award in Category 2 were applied hand in hand with Category 3 and that its jurisdiction extends correspondingly to Category 3 in that regard only (Refer to Paragraph 234 of the impugned Decision).
ix) The 1st Respondent found that the mode of award was applied in a manner that contravenes Section 86 of the Procurement Act read with Addendum 1 dated 13th June 2025, undermined transparency, and consequently rendered the awards in Categories 2 and 3 inconsistent and unlawful (Refer to Paragraphs 213, 214, 216, 218, 219 and 238 of the impugned Decision).
x) The 1st Respondent noted that with respect to Lot 1 of Category 1, the net effect of the impugned mode of award, which was applied interchangeably across all categories, impacted the fairness of the entire procurement process, and held that in order to create a level playing field, it was only fair that the said category be subjected to a re-tender process (Refer to Paragraph 240 of the impugned Decision).
xi) The 1st Respondent held that the Evaluation Committee of the 3rd Respondent had a discretion to conduct due diligence exercise on entities with no prior record of supply with the 3rd Respondent, while at the same time holding that the due diligence conducted in the subject tender was unlawful, having been applied selectively and inconsistently undermining transparency required in any lawful tendering process to the extent of bidders who benefited from Category 3 on quantities in Category 2 (Refer to Paragraph 14, 232, 233 and 239 of the impugned Decision).
xii) The 1st Respondent ordered that the award of lot 1 with respect to Category 1 in Tender No. KP1/9A.3/RT/14/24-25 for Supply of Single-Phase Smart Meters (Local Manufactures and Assemblers) is cancelled and set aside (Refer to Paragraph 242(1) of the impugned Decision).
xiii) The 1st Respondent ordered that the awards of lots 1, 2, 3 and 4 with respect to Category 2 in Tender No. KP1/9A.3/RT/14/24-25 for Supply of Single-Phase Smart Meters (Local Manufactures and Assemblers) issued to East Africa Company Limited, Hexing Technology Company Limited, Inhemeter Africa Company Limited and Smart Meter technology Limited respectively by the 2nd Respondent be cancelled and set aside (Refer to Paragraph 242(2) of the impugned Decision).
xiv) The 1st Respondent ordered that the Tender No. KP1/9A.3/RT/14/24-25 for Supply of Single-Phase Smart Meters (Local Manufactures and Assemblers) with respect to Category 1, 2 and 3 be cancelled and set aside (Refer to Paragraph 242(4) of the impugned Decision).
xv) The 1st Respondent ordered that the 2nd Respondent re-tender the quantities of meters under Category 1, 2 and 3 afresh (Refer to Paragraph 242(5) of the impugned Decision)
16. The decision of the 1st Respondent did not seat well with the Applicant who has moved this Court seeking the orders as set out hearinabove.
17. It is its case that the 1st Respondent’s impugned Decision is tainted with illegalities and/or irregularities, as demonstrated hereunder: -
i) That at paragraph 123 of the impugned Decision, the 1stRespondent stated that the Applicant’s preliminary objection filed before it was premised on a claim that the person who swore the 4th Respondent’s Supporting Affidavit that had been filed before the 1st Respondent lacked authority to act on behalf of the 4th Respondent. The 1st Respondent found that, that was not a pure question of law as its determination necessitates examining evidence and that the same cannot be determined at the preliminary objection stage. This finding is tainted with illegality and/or irregularity for the reasons that;
a) The 1st Respondent failed to appreciate that competency of pleadings raises a jurisdictional issue which is a pure question of law.
b) The Applicant pleaded at paragraph 2 of its Preliminary Objection dated 5th August 2025 filed before the 1st Respondent; at paragraph 20.4 of its Replying Affidavit sworn on 8th August 2025 filed before the 1st Respondent; and further submitted at paragraph 19 of its Written Submissions dated 13thAugust 2025 filed before the 1st Respondent; that the Applicant’s pleadings were incompetent and/or defective for want of authority under Section 37(2) and 40(1) of the Companies Act, and further that the Applicant had lied on oath.
c) All these pleadings by the Applicant were not controverted by the 4th Respondent in any of its pleadings filed before the 1st Respondent. The 4thRespondent did not file any reply to counter any of the Applicant’s claim. It therefore follows that there was no contested fact that required to be ascertained.
d) The Applicant’s preliminary objection on this issue was therefore a proper one in law and the 1stRespondent ought to have determined the same.
e) Be that as it may, even if the 1st Respondent’s holding was that it could not determine the preliminary objection at the preliminary objection stage, the same objection was raised at paragraph 20.4 of the Applicant’s Replying Affidavit filed before the 1stRespondent and further submitted at paragraph 52 (ii) of the Applicant’s Written Submissions dated 13thAugust 2025 filed before the 1st Respondent, and the 1st Respondent was enjoined to make a determination thereon on merit after hearing the Request for Review substantively as it did. This, however, did not happen.
f) The 4th Respondent’s representative not only lacked authority from the 4th Respondent, but also lied on oath, thus tainting the Request for Review with illegality, and this goes to the root of the jurisdiction of the 1st Respondent which cannot be invoked on the basis of an illegality.
g) The 1st Respondent failed to make a finding on the question of competency of the pleadings before it on merit.
ii) It is its case that at paragraph 136 of the impugned Decision, the 1st Respondent held that it has jurisdiction to consider legal issues raised by the Applicant and the 1st to 4th Interested Parties, subject to limitation, and that they cannot introduce fresh factual matters or seek remedies beyond those sought by the 4th Respondent.
iii) According to the Applicant,this was an error in law as demonstrated below; -
a) The Applicant and the 1st to 4th Interested Parties were all successful bidders in various Categories and Lots in the subject Tender.
b) Pursuant to Section 170(c) of the Procurement Act, successful bidders are mandatory parties in Request for Review proceedings before the 1st Respondent. The 1st Respondent in fact held as such at paragraph 131 of the impugned Decision.
c) Being mandatory parties, they become substantive parties by dint of the said Section 170(c) of the Procurement Act, with the same right to fully participate in proceedings before the 1st Respondent. They can raise new factual matters or issues and even seek reliefs beyond what was sought by the 4thRespondent (who was the Applicant) before the 1st Respondent, where necessary.
d) That successful bidders, often cited as interested parties, are not parties who are joined in proceedings at the discretion of the 1st Respondent. They are distinguishable from interested parties in ordinary civil proceedings under the Civil Procedure Rules whose participation is discretionary.
e) The 1st Respondent therefore misdirected itself by finding that the extent of the successful bidders’ participation in proceedings before it is limited.
iv) The 1st Respondent erroneously found at paragraph 160 of the impugned Decision that the 4th Respondent complied with the requirements of Section 167(1) of the Procurement Act, which provision required the 4th Respondent to plead or claim to have suffered, or at risk of suffering, loss or damage as a result of a breach of a duty imposed on a procuring entity by the Procurement Act or its Regulations. The reasoning of the 1st Respondent and its finding is ultra vires the law for the following reasons; -
a. At paragraph 150 of the impugned Decision, the 1stRespondent quoted the provisions of Section 167(1) of the Procurement Act. The 1st Respondent was very clear on this provision as demonstrated at paragraph 151 of the Decision where the 1st Respondent listed the conditions that the 4th Respondent must satisfy including making a claim to have suffered, or be at risk of suffering loss or damage as a result of breach of duty imposed on a procuring entity by the Procurement Act and its Regulations.
b. In fact, at paragraph 152 and 153 of the impugned Decision, the 1st Respondent appreciated the holding of the Court of Appeal in James Ayodi T/A Betoyo Contractors and Another vs Elroba enterprises Limited and Another (2019) eKLR, which the 1st Respondent expressly states prov
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1. On 19thAugust 2025 the Public Procurement Administrative Review Board issued a decision in Public Procurement Administrative Review Board Application No. 85 of 2025, Chint Meters and Electric Kenya Company Limited vs. The Chief Executive Officer/Managing Director, Kenya Power and Lighting Company PLC, Kenya Power and Lighting Company PLC, Magnate Ventures Limited, House of Procurement Limited and Abcos Industrial Limited, in respect of Tender No. KP1/9A.3/RT/14/24-25 for Supply of Single Phase Smart Meters (Local Manufacturers and Assemblers).That has triggered the filing of the consolidated suits.
2. Through a consent dated 17th September 2025 the parties herein agreed to consolidate the above suits with JR E262 of 2025 being the lead file and further agreed that the Court shall be at liberty to deliver one Judgment in the consolidated suit.
3. Following are the reliefs sought in the various suits:
In JR. NO. E262 OF 2025
Through the application dated 25th August 2025 the applicant seeks the following ORDERS;
1) 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 19th August 2025 in Public Procurement Administrative Review Board Application No. 85 of 2025, Chint Meters and Electric Kenya Company Limited vs. The Chief Executive Officer/Managing Director, Kenya Power and Lighting Company PLC, Kenya Power and Lighting Company PLC, Magnate Ventures Limited, House of Procurement Limited and Abcos Industrial Limited, in respect of Tender No. KP1/9A.3/RT/14/24-25 for Supply of Single-Phase Smart Meters (Local Manufacturers and Assemblers).
2) 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 1st Respondent dated 19th August 2025 in Public Procurement Administrative Review Board Application No. 85 of 2025, Chint Meters and Electric Kenya Company Limited vs. The Chief Executive Officer/Managing Director, Kenya Power and Lighting Company PLC, Kenya Power and Lighting Company PLC, Magnate Ventures Limited, House of Procurement Limited and Abcos Industrial Limited, in respect of Tender No. KP1/9A.3/RT/14/24-25 for Supply of Single-Phase Smart Meters (Local Manufacturers and Assemblers).
3) THAT this Honorable Court be pleased to issue an order of PROHIBITION, directed at the 2nd and 3rd Respondents, prohibiting them from Re-Advertising, Re-Tendering and/or Issuing Fresh Invitations for Sealed Tenders or Bids for the quantities of meters under Category 1, 2 and 3 in Tender No. KP1/9A.3/RT/14/24-25 for Supply of Single-Phase Smart Meters (Local Manufactures and Assemblers) through Limited Tender Open to Local Meter Manufacturers and Assemblers and/or through any other Method of Procurement.
4) THAT in the alternative to Order No. 3, this Honorable Court be pleased to issue an order of PROHIBITION, directed at the 2nd and 3rd Respondents, prohibiting them from Re-Advertising, Re-Tendering and/or Issuing Fresh Invitations for Sealed Tenders or Bids in Respect to the quantities of meters under Lot 1 of Category 1 and Lot 4 of Category 2 of Tender No. KP1/9A.3/RT/14/24-25 for Supply of Single-Phase Smart Meters (Local Manufactures and Assemblers) through Limited Tender Open to Local Meter Manufacturers and Assemblers and/or through any other Method of Procurement.
5) 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 Public Procurement Administrative Review Board (the 1stRespondent) Dated 19th August 2025 in Public Procurement Administrative Review Board Application No. 85 of 2025, Chint Meters and Electric Kenya Company Limited vs. The Chief Executive Officer/Managing Director, Kenya Power and Lighting Company PLC, Kenya Power and Lighting Company PLC, Magnate Ventures Limited, House of Procurement Limited and Abcos Industrial Limited, in respect of Tender No. KP1/9A.3/RT/14/24-25 for Supply of Single-Phase Smart Meters (Local Manufacturers and Assemblers).
6) THAT pending the hearing and determination of the substantive Originating Motion, that this Honorable Court be pleased to issue An Interim Order For Injunction, to restrain the 2nd and 3rd Respondents from Re-Advertising, Re-Tendering and/or Issuing Fresh Invitations for Sealed Tenders or Bids for the quantities of meters under Category 1, 2 and 3 in Tender No. KP1/9A.3/RT/14/24-25 for Supply of Single-Phase Smart Meters (Local Manufactures and Assemblers) through Limited Tender Open to Local Meter Manufacturers and Assemblers and/or through any other Method of Procurement.
7) THAT in the alternative to Order No. 6, that pending the hearing and determination of the substantive Originating Motion, this Honorable Court be pleased to issue AN INTERIM ORDER FOR INJUNCTION, to restrain the 2nd and 3rd Respondents from Re-Advertising, Re-Tendering and/or Issuing Fresh Invitations for Sealed Tenders or Bids in Respect to the quantities of meters under Lot 1 of Category 1 and Lot 4 of Category 2 of Tender No. KP1/9A.3/RT/14/24-25 for Supply of Single-Phase Smart Meters (Local Manufactures and Assemblers) through Limited Tender Open to Local Meter Manufacturers and Assemblers and/or through any other Method of Procurement.
8) THAT the costs of these proceedings to be provided for.
9) Such other, further, incidental and/or alternative relief(s) as this Honourable Court may deem just and expedient.
In JR 264 OF 2025
Through the application dated 28.8.25 the applicant seeks the following ORDERS;
1) THAT this Honorable Court be pleased to grant an Order of CERTIORARI to remove into the High Court for purposes of quashing the Decision of the 1st Respondent in Application No.85 of 2025 to cancel and set aside the Notification of Award of Tender in Tender No. TENDER NO. KP1/9A.3/RT/14/24-25 FOR SUPPLY OF SINGLE PHASE SMART METERS. (LOCAL MANUFACTURERS AND ASSEMBLERS);
2) THAT this Honorable Court be pleased to issue an order of PROHIBITION to prohibit the 2nd and 3rd Respondentswhether by themselves, its servants, agents or otherwise howsoever from giving effect to, enforcing, or in any way implementing the impugned Decision on Application Number 85 of 2025 delivered on the 19th August 2025 by the 1stRespondent;
3) THAT this Honorable Court be pleased to grant an order ofPROHIBITION to prohibit the 2nd and 3rd Respondents from re-tendering or advertising afresh the tender which relates to, TENDER NO. KP1/9A.3/RT/14/24-25 FOR SUPPLY OFSINGLE PHASE SMART METERS. (LOCALMANUFACTURERS AND
4) ASSEMBLERS) until this Application herein is heard and determined in its entirety;
5) THAT this Honorable Court be pleased to issue an Order of Declaration to effect that the advertisement, evaluation and award of TENDER NO. KP1/9A.3/RT/14/24-25 For Supplyof Single Phase Smart Meters. (Local Manufacturers andAssemblers) was done in conformity with the Constitution of Kenya 2010, Procurement Laws, Regulations as well as the process was fair, transparent, cost-effective and lawful as per the laid down Procedures.
6) The cost of this Application be borne by the 1st Respondent.
7) Any other Order that is just and equitable.
In JR. NO. E271 OF 2025
Through the application dated 1.9.25 the applicant seeks the following ORDERS;
1) THAT the honourable court does grant an order of certiorari to quash the irregular decision of the 1st Respondent herein, Public Procurement Administrative Board of 19th August, 2025 canceling and setting aside the award in lot 1 Category 1 in Tender No. KP 1/9A.3RT1424-25- Supply of single phase smart meters (Local Manufacturers and Assemblers) issued to Smart Meter Technology Limited by the 2nd Respondent.
2) THAT the honourable court does grant an order of certiorari to quash the irregular decision of the 1st Respondent herein, Public Procurement Administrative Board of 19th August, 2025 canceling and setting aside the awards of lots 1, 2, 3 and 4 with respect to Category 2 in Tender No. KP 1/9A.3RT1424-25- Supply of single phase smart meters ( Local Manufacturers and Assemblers) issued to East Africa Meter Company Limited, Hexing Technology Company Limited, Inhemeter Africa Company Limited and Smart Meter Technology Limited by the 2nd Respondent.
3) THAT the honourable court does grant an order of certiorari to quash the irregular decision of the 1st Respondent herein, Public Procurement Administrative Board of 19th August, 2025 canceling and setting aside the awards of lots 1, 2 and 3 with respect to Category 3 in Tender No. KP 1/9A.3RT1424-25- Supply of single phase 99 smart meters ( Local Manufacturers and Assemblers) issued to Abcos Industrial Ltd, Magnate Ventures Ltd and House of Procurement Limited respectively by the 2nd Respondent.
4) THAT the honourable court does grant an order of certiorari to quash the irregular decision of the 1st Respondent herein, Public Procurement Administrative Board of 19th August, 2025 canceling and setting aside Category 1, 2 and 3 in Tender No. KP 1/9A.3RT1424-25- Supply of single phase smart meters ( Local Manufacturers and Assemblers) .
5) THAT the honourable court does grant an order of certiorari to quash the irregular decision of the the 1st Respondent herein, Public Procurement Administrative Board of 19th August, 2025 directing the 3rd respondent herein to re-tender the quantities of meters under Category 1, 2 and 3 afresh while taking consideration the findings of the 1st Respondent in its decision of 19th August, 2025.
6) THAT the honourable court does grant an order of prohibition to prohibit the 3rd and 4th Respondents from giving effect to the impugned decision of 19th August, 2025 by the 1st respondent.
7) THAT the costs of this application be born by the 1st and 2ndRespondents.
8) Such other order or direction as shall be considered fit for the Court to grant in the circumstances of the case.
JR. NO. E262 of 2025:
4. Having laid out the foregoing foundation, this court delves into the Applicant’s case where it argues that it was the successful bidder in Lot 1 of Category 1 and Lot 4 of Category 2 of Tender No. KP1/9A.3/RT/14/24-25 for Supply of Single-Phase Smart Meters (Local Manufacturers and Assemblers) floated by the 2nd Respondent (hereinafter, the “subject tender”).
5. It is its case that the 3rd Respondent, who is the Procuring Entity of the subject tender, published on its website www.kplc.co.ke an advertisement regarding its intention to procure the subject tender through limited tender, pursuant to Section 102(2)(c) and (d) of the Public Procurement and Asset Disposal Act, Chapter 412C of the Laws of Kenya (hereinafter, the “Procurement Act”) read with Regulation 89(8) of the Public Procurement and Asset Disposal Regulations, 2020.
6. Subsequently, the 3rd Respondent restricted invitation for sealed bids for the subject tender to only local manufacturers/assemblers from interested eligible bidders by way of advertisement on its website, using the 2ndRespondent’s electronic-procurement system known as SAP Tendering Portal on the 2nd Respondent’s website. The 2nd Respondent used the restricted tendering method of procurement.
7. Three (3) Addenda were issued amending the provisions of the tender being:
i. Addendum No.1 dated 13th June 2025;
ii. Addendum No.2 dated 16th June 2025; and
iii. Addendum No.3 dated 20th June 2025.
8. The subject tender comprised of a total of eight (8) lots distributed in three (3) Categories as follows:
i. Category 1 – Local Manufacturers/Assemblers with ready stocks for immediate delivery within 21 days.
a) Lot 1 required one to bid for 167,000 single phase smart meters
ii. Category 2 – Local Manufacturers/Assemblers who have successfully supplied meters to completion to KPLC or any public entity in Kenya before.
a. Lot 1 required one to bid for 100,000 single phase smart meters
b. Lot 2 required one to bid for 85,000 single phase smart meters
c. Lot 3 required one to bid for 50,000 single phase smart meters
d. Lot 4 required one to bid for 35,000 single phase smart meters
iii. Category 3 – All local meter Manufacturers/Assemblers
a. Lot 1 required one to bid for 100,000 single phase smart meters
b. Lot 2 required one to bid for 65,000 single phase smart meters
c. Lot 3 required one to bid for 35,000 single phase smart meters
9. THAT Single Phase Smart Meters are modern devices used to measure and record the consumption of electrical energy in a single-phase electrical system. It is a type of advance metering infrastructure technology that enables utilities to remotely monitor and manage electricity usage. The subject tender in procuring single phase smart meters aims at providing accurate, real-time information on electricity consumption, ensuring that bills precisely reflect actual usage. This transparency fosters trust between consumers and the 3rd Respondent, eliminating the frustration associated with unpredictable bills.
10. The Applicant obtained the Tender Document by downloading the same from the 3rd Respondent’s website that detailed the requirements, tendering procedures and applicable guidelines, among others.
11. It completed its bid as required under the Tender Document and thereafter, submitted its bid with respect to all the eight (8) lots as distributed in the three (3) Categories of the subject tender before the close of the extended tender submission deadline of 1st July 2025.
12. The tender opening took place on 1stJuly 2025 when the applicants officer argues that he noted from the tender opening process, that the 4th Respondent did not submit its bid via the 3rd Respondent’s E-procurement system/portal as required under Clause 1.3 of the Invitation for Tender at page 7 of the Tender Document read with ITT 20 of Section II – Tender Data Sheet (TDS) at page 31 of the Tender Document.
13. A letter of Notification of Intention to Award dated 17th July 2025, was issued by the 2nd Respondent informing the Applicant that it had been awarded Lot 1 of Category 1 and Lot 4 of Category 2 of the subject tender
14. The 4th Respondent herein felt aggrieved by the decision of the 2nd Respondent as communicated vide the Notification of Award and on the 29th July 2025, the 4th Respondent lodged a Request for Review dated 27th July 2025 before the 1stRespondent seeking the following orders:
i. That the 1st Respondent annuls and quashes the impugned procurement proceedings for non-compliance with the cited provisions of the Constitution, the statute, subsidiary law and the tender document.
ii. That the 4th Respondent annuls and quashes the letter of intention to award dated 17.7.2025 and restrains the procuring entity from issuing award letters and contracts to the successful bidders.
iii. That costs be awarded to the 4th Respondent.
In the alternative;
iv. That the 1st Respondent be pleased to review or direct the independent re-evaluation of the 4th Respondent’s bid by a fresh tender evaluation committee.
v. That the 1st Respondent visits the local plants for all the successful bidders and Applicant to ascertain that they are local manufacturers and assemblies.
vi. Such other orders that the 1st Respondent may deem just and expedient.
15. That the grounds for the 4th Respondent’s dissatisfaction with the 2nd and 3rd Respondent’s decision contained in the Notification of Award and the responses thereto are as adumbrated in the following pleadings that the parties hereto filed before the 1st Respondent, namely;
i. The 4th Respondent’s Request for Review dated 27th July 2025 together with the Applicant’s Supporting Affidavit sworn by Gan Zemin on 27th July 2025, copies whereof are annexed hereto and marked as ETO-7(a) and ET0-7(b) respectively.
ii. The 2nd and 3rd Respondents’ Memorandum of Response dated 4th August 2025, a copy whereof is annexed hereto and marked as ETO-8.
iii. The 3rd Interested Party’s Memorandum of Response and Notice of Preliminary Objection both dated 1stAugust 2025, copies whereof are annexed hereto and collectively marked as ETO-9.
iv. The 4th Respondent’s Supplementary Affidavit sworn by Gan Zemin on 4th August 2025, a copy whereof is annexed hereto and marked as ETO-10
v. Applicant’s Preliminary Objection dated 5th August 2025, a copy whereof is annexed hereto and marked as ETO-11.
vi. The 4th Interested Party’s Replying Affidavit sworn by Zhou Xiping on 7th August 2025, a copy whereof is annexed hereto and marked as ETO-12
vii. The 1st Interested Party’s Memorandum of Response dated 7th August 2025, a copy whereof is annexed hereto and marked as ETO-13
viii. The Applicant’s Replying Affidavit sworn by Emmanuel Tongi Oroo on 8th August 2025, Affidavit sworn by Josphat Atanga Nyabate on 8th August 2025, and Affidavit sworn by Dennis Muthenya on 8th August 2025, copies whereof are annexed hereto and marked as ETO-14(a), ETO-14(b) and ETO-14(c) respectively.
ix. The 2nd Interested Party’s Replying Affidavit sworn by Benard Odote on 8th August 2025, a copy whereof is annexed hereto and marked as ETO-15.
x. The 4th Respondent’s Written Submissions dated 10thAugust 2025, a copy whereof is annexed hereto and marked as ETO-16.
xi. The 2nd and 3rd Respondents Written Submissions together with a list of authorities filed on 12th August 2025, copies whereof are annexed hereto and collectively marked as ETO-17.
xii. The Applicant’s Written Submissions dated 13th August 2025 together with a list and bundle of authorities, copies whereof are annexed hereto and collectively marked as ETO-18
xiii. THAT the 1st Respondent after hearing all parties hereto, rendered its Decision dated 19th August 2025 (hereinafter, “impugned Decision”). In the impugned Decision, the 1st Respondent made, inter alia, the following findings and/or observations; -
i) The 1st Respondent found that the Applicant’s claim of want of authority on the part of the 4th Respondent to institute the Request for Review proceedings before the 1st Respondent, is not a pure question of law, as its determination necessitates examining evidence to establish whether such authority existed, and does not therefore meet the threshold of a pure point of law, and cannot therefore be determined at the preliminary objection stage (Refer to Paragraph 123 of the impugned Decision).
ii) The 1st Respondent held that it has jurisdiction to consider legal issues raised by the Applicant and the 1stto 4th Interested Parties subject to limitation and that they cannot introduce fresh factual matters or seek remedies beyond those sought by the 4th Respondent (Refer to Paragraph 136 of the impugned Decision).
iii) The 1st Respondent held that the 4th Respondent was not a tenderer in respect of all lots under Categories 1 and 2, and that the 1st Respondent shall confine its determination to Category 3 where the 4th Respondent participated as a tenderer, and shall accordingly down its tools with respect to Categories 1 and 2, while at the same time stating that it retains jurisdiction to examine mode of award as pertains Category 1, 2 and 3 and relied on its determination in PPARB Application No. 59 of 2025 Tramex Mediquip Ltd v Chief Executive Officer, Kenya Medical Supplies Agency and 3 Others which did not in any event support its reasoning (Refer to Paragraph 146 and 190 of the impugned Decision).
iv) The 1st Respondent found that the 4th Respondent complied with Section 167(1) of the Procurement Act which required the 4th Respondent to plead or claim to have suffered, or at risk of suffering, loss or damage as a result of a breach of a duty imposed on a procuring entity by the Procurement Act or its Regulations (Refer to Paragraph 160 and 236 of the impugned Decision).
v) The 1st Respondent, in consideration of the Applicant’s objection to aspects of the Request for Review before the 1st Respondent that were time barred, consolidated the same to two core issues, one being mode of award and its application, then proceeded to address the question when the Applicant became aware of the alleged breach by linking the same to the date of notification, and found that the concerned aspects of the Request for Review claimed to be time barred were not time barred (Refer to Paragraphs 161, 169 to 173 and 236 of the impugned Decision).
vi) The 1st Respondent considered the provisions of Section 67 of the Procurement Act and the question of confidential information, and in noting that the 4thRespondent did not annex any document that can be deemed confidential within the meaning of the Procurement Act, found that the 4th Respondent did not rely on any confidential document under Section 67 of the Procurement Act (Refer to Paragraphs 176 to 185 and 237 of the impugned Decision).
vii) The 1st Respondent found that the non-joinder of the Applicant as an Interested Party is not fatal given that it was not a successful tenderer under Category 3 which is the primary focus of the Request for Review before the 1st Respondent (Refer to Paragraph 192 and 235 of the impugned Decision).
viii) The 1st Respondent found that it has jurisdiction over Category 2 to the extent that the mode of award in Category 2 were applied hand in hand with Category 3 and that its jurisdiction extends correspondingly to Category 3 in that regard only (Refer to Paragraph 234 of the impugned Decision).
ix) The 1st Respondent found that the mode of award was applied in a manner that contravenes Section 86 of the Procurement Act read with Addendum 1 dated 13th June 2025, undermined transparency, and consequently rendered the awards in Categories 2 and 3 inconsistent and unlawful (Refer to Paragraphs 213, 214, 216, 218, 219 and 238 of the impugned Decision).
x) The 1st Respondent noted that with respect to Lot 1 of Category 1, the net effect of the impugned mode of award, which was applied interchangeably across all categories, impacted the fairness of the entire procurement process, and held that in order to create a level playing field, it was only fair that the said category be subjected to a re-tender process (Refer to Paragraph 240 of the impugned Decision).
xi) The 1st Respondent held that the Evaluation Committee of the 3rd Respondent had a discretion to conduct due diligence exercise on entities with no prior record of supply with the 3rd Respondent, while at the same time holding that the due diligence conducted in the subject tender was unlawful, having been applied selectively and inconsistently undermining transparency required in any lawful tendering process to the extent of bidders who benefited from Category 3 on quantities in Category 2 (Refer to Paragraph 14, 232, 233 and 239 of the impugned Decision).
xii) The 1st Respondent ordered that the award of lot 1 with respect to Category 1 in Tender No. KP1/9A.3/RT/14/24-25 for Supply of Single-Phase Smart Meters (Local Manufactures and Assemblers) is cancelled and set aside (Refer to Paragraph 242(1) of the impugned Decision).
xiii) The 1st Respondent ordered that the awards of lots 1, 2, 3 and 4 with respect to Category 2 in Tender No. KP1/9A.3/RT/14/24-25 for Supply of Single-Phase Smart Meters (Local Manufactures and Assemblers) issued to East Africa Company Limited, Hexing Technology Company Limited, Inhemeter Africa Company Limited and Smart Meter technology Limited respectively by the 2nd Respondent be cancelled and set aside (Refer to Paragraph 242(2) of the impugned Decision).
xiv) The 1st Respondent ordered that the Tender No. KP1/9A.3/RT/14/24-25 for Supply of Single-Phase Smart Meters (Local Manufactures and Assemblers) with respect to Category 1, 2 and 3 be cancelled and set aside (Refer to Paragraph 242(4) of the impugned Decision).
xv) The 1st Respondent ordered that the 2nd Respondent re-tender the quantities of meters under Category 1, 2 and 3 afresh (Refer to Paragraph 242(5) of the impugned Decision)
16. The decision of the 1st Respondent did not seat well with the Applicant who has moved this Court seeking the orders as set out hearinabove.
17. It is its case that the 1st Respondent’s impugned Decision is tainted with illegalities and/or irregularities, as demonstrated hereunder: -
i) That at paragraph 123 of the impugned Decision, the 1stRespondent stated that the Applicant’s preliminary objection filed before it was premised on a claim that the person who swore the 4th Respondent’s Supporting Affidavit that had been filed before the 1st Respondent lacked authority to act on behalf of the 4th Respondent. The 1st Respondent found that, that was not a pure question of law as its determination necessitates examining evidence and that the same cannot be determined at the preliminary objection stage. This finding is tainted with illegality and/or irregularity for the reasons that;
a) The 1st Respondent failed to appreciate that competency of pleadings raises a jurisdictional issue which is a pure question of law.
b) The Applicant pleaded at paragraph 2 of its Preliminary Objection dated 5th August 2025 filed before the 1st Respondent; at paragraph 20.4 of its Replying Affidavit sworn on 8th August 2025 filed before the 1st Respondent; and further submitted at paragraph 19 of its Written Submissions dated 13thAugust 2025 filed before the 1st Respondent; that the Applicant’s pleadings were incompetent and/or defective for want of authority under Section 37(2) and 40(1) of the Companies Act, and further that the Applicant had lied on oath.
c) All these pleadings by the Applicant were not controverted by the 4th Respondent in any of its pleadings filed before the 1st Respondent. The 4thRespondent did not file any reply to counter any of the Applicant’s claim. It therefore follows that there was no contested fact that required to be ascertained.
d) The Applicant’s preliminary objection on this issue was therefore a proper one in law and the 1stRespondent ought to have determined the same.
e) Be that as it may, even if the 1st Respondent’s holding was that it could not determine the preliminary objection at the preliminary objection stage, the same objection was raised at paragraph 20.4 of the Applicant’s Replying Affidavit filed before the 1stRespondent and further submitted at paragraph 52 (ii) of the Applicant’s Written Submissions dated 13thAugust 2025 filed before the 1st Respondent, and the 1st Respondent was enjoined to make a determination thereon on merit after hearing the Request for Review substantively as it did. This, however, did not happen.
f) The 4th Respondent’s representative not only lacked authority from the 4th Respondent, but also lied on oath, thus tainting the Request for Review with illegality, and this goes to the root of the jurisdiction of the 1st Respondent which cannot be invoked on the basis of an illegality.
g) The 1st Respondent failed to make a finding on the question of competency of the pleadings before it on merit.
ii) It is its case that at paragraph 136 of the impugned Decision, the 1st Respondent held that it has jurisdiction to consider legal issues raised by the Applicant and the 1st to 4th Interested Parties, subject to limitation, and that they cannot introduce fresh factual matters or seek remedies beyond those sought by the 4th Respondent.
iii) According to the Applicant,this was an error in law as demonstrated below; -
a) The Applicant and the 1st to 4th Interested Parties were all successful bidders in various Categories and Lots in the subject Tender.
b) Pursuant to Section 170(c) of the Procurement Act, successful bidders are mandatory parties in Request for Review proceedings before the 1st Respondent. The 1st Respondent in fact held as such at paragraph 131 of the impugned Decision.
c) Being mandatory parties, they become substantive parties by dint of the said Section 170(c) of the Procurement Act, with the same right to fully participate in proceedings before the 1st Respondent. They can raise new factual matters or issues and even seek reliefs beyond what was sought by the 4thRespondent (who was the Applicant) before the 1st Respondent, where necessary.
d) That successful bidders, often cited as interested parties, are not parties who are joined in proceedings at the discretion of the 1st Respondent. They are distinguishable from interested parties in ordinary civil proceedings under the Civil Procedure Rules whose participation is discretionary.
e) The 1st Respondent therefore misdirected itself by finding that the extent of the successful bidders’ participation in proceedings before it is limited.
iv) The 1st Respondent erroneously found at paragraph 160 of the impugned Decision that the 4th Respondent complied with the requirements of Section 167(1) of the Procurement Act, which provision required the 4th Respondent to plead or claim to have suffered, or at risk of suffering, loss or damage as a result of a breach of a duty imposed on a procuring entity by the Procurement Act or its Regulations. The reasoning of the 1st Respondent and its finding is ultra vires the law for the following reasons; -
a. At paragraph 150 of the impugned Decision, the 1stRespondent quoted the provisions of Section 167(1) of the Procurement Act. The 1st Respondent was very clear on this provision as demonstrated at paragraph 151 of the Decision where the 1st Respondent listed the conditions that the 4th Respondent must satisfy including making a claim to have suffered, or be at risk of suffering loss or damage as a result of breach of duty imposed on a procuring entity by the Procurement Act and its Regulations.
b. In fact, at paragraph 152 and 153 of the impugned Decision, the 1st Respondent appreciated the holding of the Court of Appeal in James Ayodi T/A Betoyo Contractors and Another vs Elroba enterprises Limited and Another (2019) eKLR, which the 1st Respondent expressly states prov
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