1. I am called upon to determine an application, dated 4th May 2026. It seeks 3 principal orders.
2. The first is for the setting aside, vacating or discharge of the judgement that was delivered on 7th May 2025, and the decree extracted from it, and all consequential orders. In the alternative, it seeks that the judgement of 7th May 2025 be reviewed or varied, by discharging the grant of the order of mandamus, with a declaration that Tender No. EAPCPLC/RFP/009/2023 has lapsed by effluxion of time, under section 135(4) of the Public Procurement and Asset Disposal Act, Cap. 412C, Laws of Kenya. The second principal prayer is for a finding and declaration that, in light of the change in shareholding and control of the 2nd respondent, the 2nd respondent no longer falls within the definition of a “public entity,” within the meaning of section 2 of Public Procurement and Asset Disposal Act, for the purposes of the procurement process the subject of the impugned judgement. The third seeks that the conviction of the 1st respondent, on 17th December 2025, be vacated, and the 1st respondent be discharged.
3. The grounds on the face of the application are to the effect that section 135(4) of the Public Procurement and Asset Disposal Act is couched in mandatory terms, that a contract is to be signed within the tender validity period. It is averred that the tender validity period, for Tender No. EAPCPLC/RFP/009/2023, lapsed on or about 28th August 2024, being 30 days after 29th July 2024, which was the date of the decision of the Public Procurement Administrative Review Board, which had extended the tender validity period for 30 days, and no further extension was granted thereafter. It is also averred that the mandamus order cannot compel performance of an act prohibited by statute, and Kenya National Examinations Council; GGN & 9 others (Ex parte) vs. Republic [1997] eKLR [1997] KECA 58 (KLR) is cited.
4. The other ground is that the shareholding of the 2nd respondent has changed, for on 4th December 2025, Kalahari Cement Limited, a subsidiary of Pacific Cement Limited, within the Amsons Group, acquired 27% of the share capital from the National Social Security Fund, without triggering a mandatory takeover offer. Kalahari Cement Limited had previously acquired 29.2% shareholding, bringing its total shareholding to 56.2% of the total issued share capital of the 2nd respondent. Bamburi Cement Limited, another company within the Amsons Group, holds 12.5% shareholding in the 2nd respondent, bringing the total shares held by the Amsons Group to 68.7%, against 25.3% held by the National Treasury. That meant that the Government no longer holds a controlling interest in the 2nd respondent, by virtue of the definition of a state corporation in the State Corporations Act, Cap. 446, Laws of Kenya, and it is reasonably not a “public entity,” within the meaning of section 2 of the Public Procurement and Asset Disposal Act, as read with Article 227 of the Constitution.
5. It is averred that, subsequent to that change in shareholding, the composition of the board changed, with the 2 board members representing the Government, exiting on 20th February 2026, and being substituted by 2 non-Government directors. On 10th April 2026, the board member, representing the National Social Security Fund, also exited, to be replaced by a non-executive board member from the Amsons Group. It is submitted that the changes in the governance structure of the 2nd respondent has constrained the capacity of the 2nd respondent to comply with the impugned judgement.
6. It is argued that 3 years have lapsed, since the submission of the tender in May 2023, which has meant that there must have been changes in the cost of equipment and regulatory licensing requirements, and the technical and financial assumptions, upon which the original tender rested, are no longer current. It is submitted that the setting aside of the judgement would be just. It is averred that there has been goodwill, on the part of the respondents, and the applicant would not suffer any prejudice, which cannot be compensated in damages.
7. The affidavit in support is sworn by the 1st respondent, who is the General Manager and Chief Executive Officer of the 2nd respondent. He avers that the 2nd respondent had advertised a tender, No. EAPCPLC/RFP/009/2023, for design, supply, installation and commissioning of a grid tied solar PV plant. The tender closed on 4th May 2023. The Public Procurement Administrative Review Board rendered a decision, on 29th July 2024, in Request for Review No. 61 of 2024, which extended the tender validity period for 30 days. In the instant cause, the court, on 7th May 2025, issued orders of mandamus, directing the respondents to issue a notification of award, within 7 days, and to complete the procurement process, within 60 days. On 15th November 2025, the 1st respondent was found guilty of contempt of court, for failure to comply with the judgement.
8. The 1st respondent avers that he and the 2nd respondent had taken steps, since then, towards compliance with the orders of the court. A notification of award, dated 15th December 2025, was issued, payment of costs of Kshs. 250,000.00 was made, a performance guarantee was accepted, an implementation committee was constituted, and the 1st respondent attended court and apologised.
9. The 1st respondent further avers that the tender validity period for the impugned tender expired on or about 28th August 2024, going by section 135(4) of the Public Procurement and Asset Disposal Act, which expressly provides that “a contract shall be signed within the validity period.” He submits that the notification of award was issued on 15th December 2025, some 15 months after the lapse of the extended validity period. He argues that a mandamus order cannot issue to compel performance of an act prohibited by a clear statutory provision, and, for that reason, the respondents are unable, as a matter of law, to execute a contract in respect of a tender, whose validity period lapsed a long period ago.
10. The 1st respondents further avers that there are changes in the shareholding of the 2nd respondent, with Kalahari Cement Limited acquiring 29.2% shares, in the 2nd respondent, from Associated International Cement Limited and Cementia Holdings AG, and that an exemption application from a mandatory takeover offer had been lodged with the Capital Markets Authority, the regulator, on 12th November 2025, referring to a notice of intention published on 1st August 2025, and accepted on 5th August 2025, by the regulator. On 4th December 2025, the regulator approved acquisition of 27% from the National Social Security Fund, by Kalahari Cement Limited, without triggering a mandatory takeover offer. It is asserted that those acquisitions have placed the shareholding of Kalahari Cement Limited, in the 2nd respondent, at 56.2%. It is further asserted that Bamburi Cement Limited, which is also a member of the Amsons Group, together with Kalahari Cement Limited, holds 12.5% shareholding in the 2nd respondent, which translates to a total of 68.7% ownership of the 2nd respondent by companies within the Amsons Group. It is argued that the effect of that is that the Amsons Group has become the majority shareholder, with the Government holding a mere 25.3% and other shareholders holding the balance of 6.0%.
11. The 1st respondent avers that those changes in shareholding have also had an effect on the governance of the 2nd respondent, for on 20th February 2026, 2 members of the board, representing the Government, exited the board, and were replaced by new board members, who do not represent the Government. It is argued that that exit by Government board members meant that the Government was no longer exercising direct control over the 2nd respondent. On 10th April 2026, National Social Security Fund also formally exited from the board, and was replaced by a representative from a cement company in the Amsons Group. It is argued that the 2nd respondent is no longer a State corporation, within the meaning of the State Corporations Act, as the Government no longer holds a controlling interest in it. The 1st respondent avers that section 2 of the Public Procurement and Asset Disposal Act, defines a public entity, and the 2nd respondent no longer fits in that definition. It is further argued that the decision-making authority has shifted from the State, to the board of Kalahari Cement Limited and Amsons Group, which has materially and irreversibly altered the capacity of the respondents to comply with the impugned judgement.
12. The 1st respondent further avers that 3 years have lapsed since the submission of the tender, in May 2023, and the technical and financial assumptions underpinning it are no longer current, as there have been material fluctuations in the materials and components. He also avers that the regulatory licensing requirements, administered by the Energy and Petroleum Regulatory Authority and the National Construction Authority, and the grid connection arrangements with the Kenya Power and Lighting Company PLC, have also undergone changes. It is further averred that the bills of quantities that ought to have been prepared have not been finalised, and their finalisation cannot be completed within the timelines contemplated by the impugned judgement.
13. The 1st respondent avers that the respondents would suffer prejudice, if the judgement is not set aside, and if they are compelled to comply with the orders, whose enforceability is in question. It is further averred that whatever prejudice that the applicant stands to suffer would be compensable in damages.
14. Several documents have been attached to the affidavit of the 1st respondent, in support of the positions taken by the respondents in the matter. They include a copy of the tender document, dated May 2023, in respect of tender No. EAPCPLC/RFP/009/2023; a copy of the decision of the Public Procurement Administrative Review Board, in Request for Review No. 61 of 2024, of 29th July 2024; a copy of the judgement of the court, rendered herein on 7th May 2025; a copy of the ruling of the court, on contempt of court, rendered herein on 15th December 2025; a copy of the notification of intention to award tender, dated 15th December 2025; a copy of a document on the bank transfer of Kshs. 250,000.00, dated 12th March 2026; a copy of a letter, from the Advocates for the respondents, to the Advocates for the applicant, dated 7th April 2026, accepting the bank guarantee, obtained by the applicant; a copy of a notice, issued and published by Kalahari Cement Limited, relating to exemption from mandatory takeover, dated 12th November 2025; a copy of a notice of the Capital Markets Authority approval exempting mandatory takeover offer, dated 4th December 2026; a copy of a list of the shareholding in the 2nd respondent, as at 13th December 2025; a copy of a notice of appointment of 2 new directors, to the board of the 2nd respondent, and the exit from the board of 2 directors representing the State, dated 20th February 2026; a copy of a notice of appointment a new director to the board of the 2nd respondent, and the exit from the board of a director representing the National Social Security Fund, dated 10th April 2026; and a copy of a legal opinion, given to the respondents, by M&E Advocates LLP, dated 28th April 2026.
15. The applicant reacted to that application, vide an affidavit that was sworn by its Chairman and Chief Executive Officer, Mr. Berjeesh Dady Suty, on 22nd May 2026. He avers that the application was frivolous and in bad faith. It is averred that some of the compliances, with the orders of the Public Procurement Administrative Review Board and the court, came long after the new management had taken over. The respondents prevaricated, with respect to issuing the applicant with the notification of intention to award tender, and the same was furnished on 4th February 2026, only upon court intervention. The respondents also prevaricated over the matter of the contract performance guarantee, and the same was accepted after a number of court appearances. It is further averred that the respondents had intimated, on 7th April 2026, that they had initiated the process, only to backtrack upon a new Judge taking over the matter. It is asserted that the 1st respondent remains a contemnor and a convict, and should have no right of audience before the contempt is purged. The ruling on contempt of court was delivered on 15th December 2025, yet it took the respondents over 6 months for them to move the court for the review orders. The decree was passed on 7th May 2025, yet no appeal or review was sought of that judgement timeously. When notification of tender was being send on 4th February 2026, a new board of directors had taken over, and the new ownership was effective, but section 135(4) of the Public Procurement and Asset Disposal Act does not apply. The bank contract guarantee was given on 24th March 2026, the change of ownership had happened and the board of directors had changed.
16. It is asserted that it was the respondents who applied to the Public Procurement Administrative Review Board, in Request for Review No. 61 of 2024, for extension of time within which to issue the notification of award of the tender, and it cannot now be argued that the tender period had expired. It is averred that the change of ownership or shareholding of a company does not defeat the rights of a creditor, neither does it absolve the new owners from the existing liabilities of the company. It is also averred that due diligence before the new owners took over would have established the pre-existing decrees of the court and liabilities attaching to the respondents, and the respondents cannot in law be allowed to shirk responsibilities, on account of the newness of the board of directors.
17. Attached to that replying affidavit are several documents, some being the same as those annexed to the application by the 1st respondent. There is a document, from the bank, evidencing payment of Kshs. 250,000.00, dated 12th March 2026; there is the letter, dated 15th December 2025, from the 2nd respondent, to the applicant, of intention to award the tender, which was received on 4th February 2026; there is a copy of the same letter, of 15th December 2025, but without the date stamps embossed; there is a copy of a letter, dated 18th February 2026, from the applicant, addressed to the 1st respondent, accepting the tender; there is an insurers contractors performance bond, dated 19th February 2026, issued to the applicant, with respect to the tender; there is a letter, from the 2nd respondent, dated 5th March 2026, rejecting the performance bond issued to the applicant, dated 19th February 2026; there is a performance guarantee, by a bank, in favour of the applicant, dated 23rd March 2026, addressed to the 2nd respondent; there is a letter of 7th April 2026, from the Advocates for the respondents, accepting the performance guarantee dated 23rd March 2026, and intimating that the process of getting the contract signed were underway; there is an order of the court, of 17th March 2026, discharging the respondents from liability on costs; and there is the ruling delivered herein on 15th December 2025, convicting the 1st respondent of contempt of court.
18. Directions were taken, on 2nd June 2026, for canvassing of the application, by way of written submissions. Both sides have complied, by filing their respective submissions.
19. Those by the respondents are dated 5th June 2026. They identify 6 issues for determination, which turn on whether the court retains jurisdiction to re-visit or vary its orders, where supervening facts have rendered compliance unlawful, impracticable and impossible; whether a contract can be lawfully executed in light of lapse of the tender validity period, under section 135(4) of the Public Procurement and Asset Disposal Act; whether the court can take into account substantial changes in the ownership, governance, procurement status and market conditions affecting implementation of the tender; whether public interest favours enforcement of the existing order; whether the contemnor has audience; and costs. The decisions in Kariuki vs. Kiambu County Assembly & 3 others [2026] KECA 1049 (KLR); Okoiti & 2 others vs. Attorney General & 7 others [2020] KECA 589 (KLR); Niazsons (K) Limited vs. China Road & Bridge Corporation (Kenya) [2000] KCA 198 (KLR); Republic vs. Public Procurement Administrative Review Board & another Rentco Africa Limited (Ex parte) [2022] KEHC 12978 (KLR); Kwanza Estates Limited vs. JKUAT [2024] KESC 74 (KLR); Akber Abdullah Kassam Esmail vs. Equip Agencies Ltd & 4 others [2014] KECA 627 (KLR); and Rai & 3 others vs. Rai & 4 others [2014] KESC 31 (KLR) are relied upon.
20. The written submissions by the applicant are dated 18th June 2026. The said submissions turn on the delay in the bringing of the application, to review a judgement delivered on 7th May 2025; no appeal or review having been brought against the determination of the Public Procurement Administrative Review Board, in Request for Review No. 61 of 2024, which gave rise to the mandamus order of 7th May 2025; sitting and waiting for time to lapse so as to defeat the award of the tender; the respondents taking contradictory positions, in asserting that the 2nd respondent was no longer a public entity, in respect of which the Public Procurement Administrative Review Board could exercise jurisdiction, and asserting that the tender, the subject of the proceedings, had lapsed by effluxion of time; the issues around the 2nd respondent being a private entity were not raised when the matter was before the Public Procurement Administrative Review Board on 29th July 2024 and the court on 7th May 2025; the matter of the liabilities and assets of the 2nd respondent, at the point of change of ownership, and disclosure of the judgement herein to the new owners; and defrauding creditors or evading lawful decrees of the court. The decision in HC Misc. Application No. 257 of 1983, Nairobi Kura Mbae vs. The Land Adjudication Officer Chuka & another is cited.
21. The application seeks review, setting aside, vacating, discharge or variation of the judgement of 7th May 2025. Based on the material that has been presented by the respondents, who are the movers of the motion, there would be only 1 issue for determination, and that is whether a case has been made out for grant of the orders sought.
22. The respondents advance 3 distinct arguments in their quest. The first is that the tender validity period had lapsed, by the time the determination of the Public Procurement Administrative Review Board and the mandamus order on it were made, and a mandamus order could not issue to compel performance of an act prohibited by statute. The second is that the 2nd respondent was no longer a public entity, to which the Public Procurement and Asset Disposal Act could apply, following changes in its shareholding and governance. The third is that a considerable period of time had lapsed, between submission of the tender and when compliance with the mandamus order was being compelled, through the contempt orders of 15th December 2025, which means that prices of equipment and commodities had changed, and so had the applicable regulatory framework.
23. Before I analyse the matter on the basis of those 3 arguments, advanced by the respondents, let me first consider the matter of review, setting aside, vacating, discharge and variation of orders and decrees, for the prayers in the application invite me to grant orders along those lines. There could be jurisdiction issues around that. There could also be questions of propriety of grant of the prayers sought. That would call for disposing of those issues first, before I get into the merits of the application. What is targeted for review, setting aside, discharge, vacating, variation and reversal is the judgement that this court, presided over by Aburili J, delivered on 7th May 2025. The issue should be whether that judgement would be available for review, setting aside, discharge, vacating, varying or reversing, and, if it would, on what basis. What would be the principles applicable in whichever case.
24. The starting point should be with what each of these orders entail. Although these terms are sometimes used loosely, and interchangeably, they are not synonymous in law, for they describe different remedies, available under different circumstances, and have different legal consequences.
25. Setting aside a judgement or decree means to nullify it, so that it ceases to have legal effect, usually because of some procedural defect, or because justice requires that the matter be re-opened. The common grounds, upon which a judgement or decree may be set aside, include lack of service or proper service of summons, irregular entry of judgement, fraud, mistake, inadvertence or excusable error, denial of a fair hearing and existence of a defence raising triable issues. The effect of setting aside is that the parties are restored to the position that they were in before the judgement was entered, and the matter may proceed for hearing afresh. The leading local authorities on this are Shah vs. Mbogo [1967] EA 116, Patel vs. EA Cargo Handling Services Limited [1974] EA 75 and James Kanyita Nderitu vs. Marios Philotas Ghikas [2016] eKLR [2016] KECA 470 (KLR).
26. Reversal of a judgement is an appellate remedy, available upon an appellate court concluding that the trial court was wrong, and substituting the decision of the trial court with its own. A reversal would occur, or be made, where the law was wrongly applied, the evidence did not support the findings, the trial court misdirected itself and the court lacked jurisdiction. One distinction, between setting aside and reversal, is that reversal is not primarily concerned with procedural defects, but the correctness of the decision the subject of the appeal. Where, for example, the appellate court finds that the trial court misunderstood the law, when it entered judgement in favour of the person claiming, it would reverse that judgement, and, depending on the circumstances, it may substitute it with its own, based on the applicable law. See Mbogo vs. Shah [1968] EA 93 and Selle vs. Associated Motor Boat Co. Ltd [1968] EA 123.
27. With respect to vacating a judgement or decree, the term “vacate” would mean to render void or to cancel, and, in many common law jurisdictions, it would be substantially similar to set aside. However, in the Kenyan practice, “vacate” is, apparently, used commonly with respect to vacating orders, warrants, stays, ex parte proceedings and judgments entered irregularly. A court order that states that a judgement has been vacated would mean that that judgement is no longer operative. Therefore, the legal effect of vacating a judgement is indistinguishable from setting the judgement aside.
28. The Kenyan legal landscape has not developed a standalone doctrine for vacating a judgement, comparable to the doctrines of review, setting aside or appeal. When the courts in Kenya talk of vacating a judgement, the jurisdiction exercised would be that to set aside or review the judgement, or to declare it a nullity for want of jurisdiction or in exercise of some express statutory power. On account of that, the case law to support exercise of power by a court to vacate its own judgement, would be found under the jurisprudence of review and setting aside.
29. A central principle, used by Kenyan courts to vacate judgements, is functus officio, that is that once a court delivers a final judgement, it cannot thereafter re-visit the merits of the case, except through recognised procedures, such as review or correction of clerical errors, as was discussed in Odinga vs. Independent Electoral & Boundaries Commission & 3 others [2013] eKLR [2013] KESC 8 (KLR) and Telkom Kenya Ltd vs. Ochanda (Suing on His Own Behalf and on Behalf of 996 Former Employees of Telkom Kenya Ltd) [2014] eKLR [2014] KECA 600 (KLR), where it was explained that a court, which has finally determined a matter, cannot simply re-open it because it has changed its mind, it must derive authority from statute or a recognised jurisdiction such as review. The principle of functus officio, would, therefore, be a hurdle in seeking to vacate a judgement.
30. The other approach that may be adopted, by the court, to re-visit its own judgement, would be review, whose effect could be to vacate the judgement. It was warned, in National Bank of Kenya Ltd vs. Ndung’u Njau [1997] eKLR [1997] KECA 71 (KLR), that a review ought not be an appeal in disguise. A court cannot vacate its own judgement merely because it now believes that it may have been wrong, for where the complaint goes to the correctness of the decision, then the appropriate remedy would be appeal, for a judgement can only be re-visited on recognised review grounds. The principle, from National Bank of Kenya Ltd vs. Ndung’u Njau [1997] eKLR [1997] KECA 71 (KLR), then is that the power to vacate a judgement is not inherent and unrestricted. Benjoh Amalgamated Ltd & another vs. Kenya Commercial Bank Ltd [2014] KECA 872 (KLR) and Benjoh Amalgamated Limited vs. Kenya Commercial Bank Limited & another [2024] KECA 593 (KLR) also discussed the limited circumstances under which a court may re-visit concluded decisions, and emphasised finality in litigation, stressing on the court not endlessly reopening its own judgements, except where jurisdiction is expressly conferred by statute.
31. The other incidence would be with respect to null judgements, with regard to which the court could exercise the power to vacate them. Owners of the Motor Vessel “Lillian S” vs. Caltex Oil (Kenya) Limited [1989] KLR 1 [1989] eKLR [1989] KECA 48 (KLR), did not expressly deal with the subject, but its famous statement, that jurisdiction is everything, lays a foundation, upon which the courts can hold that judgements entered without jurisdiction, would be nullities, and may be set aside or vacated by the court which pronounced the judgement. In such a case, the court, vacating such a judgement, would not be reviewing the judgement, or exercising an appellate jurisdiction over it, but merely recognising that no valid judgement ever existed. Kenyan courts largely follow MacFoy vs. United Africa Company Limited [1961] 3 All ER, where it was declared that where a judgement is founded on a jurisdictional defect, rendering it void ab initio, the court may vacate it or set it aside, because it would be a nullity.
32. The vacating jurisdiction, if the phenomenon may be described as such, may be exercised in Kenya in the following circumstances. One, with respect to irregular judgements, as explained in James Kanyita Nderitu vs. Marios Philotas Ghikas [2016] eKLR [2016] KECA 470 (KLR), where an irregular judgement, such as a judgement entered without service, may be set aside or vacated ex debito justitiae, simply because it was improperly obtained. Two, in exercise of the review jurisdiction, as discussed in National Bank of Kenya Ltd vs. Ndung’u Njau [1997] eKLR [1997] KECA 71 (KLR), Nyamogo & Nyamogo Advocates vs. Kogo [2001] EA 173 and [1997] KECA 71 (KLR), where the court may effectively vacate part or all of its judgement where review grounds are established. Three, for lack of jurisdiction, based on Owners of the Motor Vessel “Lillian S” vs. Caltex Oil (Kenya) Limited [1989] KLR 1 [1989] eKLR [1989] KECA 48 (KLR), and the succession of cases that followed it.
33. The term discharge is used to refer to different things, with respect to judgements and orders in civil cases, and it is also used in criminal practice.
34. With respect to judgements, it does not carry the same meaning with setting aside or vacating the judgement. Rather, it is used with reference to a reason for relief from a judgement. The fact that a judgement has been discharged, is a ground for seeking relief from that judgement. A party may be relieved from a final judgement, if the same has been satisfied, released or discharged. It is about being released or excused from performing the obligations under the judgement. That release, or being excused from performing the obligations to the judgement, or settling the judgement, means that the judgement is no longer enforceable, on account of that release or discharge. It does not erase the judgement, but it can be used as a reason to have the judgement set aside or stayed. The debt would not stand cleared, for example, for it would be merely excused or waived.
35. Discharge is different from satisfaction. Discharge refers to release from an underlying obligation or a debt, not because the debt is settled or paid, but discharged, on account of the operation of the law. Satisfaction happens where the amount owed is in fact paid, to clear the debt, and, thereby settle or satisfy the judgement. Once the debt is paid, the judgment would be satisfied, and become unavailable for enforcement. Discharge and satisfaction, are related, but different, for both render the judgement unenforceable, but for different reasons, one releases the debtor from the debt or the obligation to settle it, in the other, the debtor actually pays off the debt.
36. Discharge of a judgement does not have the same effect as setting it aside. Both have the same effect or result, of rendering the judgement unenforceable.
37. Discharge releases the judgement-debtor from the debt or obligation, by making the debt legally uncollectible forever or permanently, and by removing the obligation. It effectively kills the debt or the obligation to satisfy the judgment, so that the debtor is released from the obligation to settle or satisfy it. That, however, leaves the judgement intact, until th
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2. The first is for the setting aside, vacating or discharge of the judgement that was delivered on 7th May 2025, and the decree extracted from it, and all consequential orders. In the alternative, it seeks that the judgement of 7th May 2025 be reviewed or varied, by discharging the grant of the order of mandamus, with a declaration that Tender No. EAPCPLC/RFP/009/2023 has lapsed by effluxion of time, under section 135(4) of the Public Procurement and Asset Disposal Act, Cap. 412C, Laws of Kenya. The second principal prayer is for a finding and declaration that, in light of the change in shareholding and control of the 2nd respondent, the 2nd respondent no longer falls within the definition of a “public entity,” within the meaning of section 2 of Public Procurement and Asset Disposal Act, for the purposes of the procurement process the subject of the impugned judgement. The third seeks that the conviction of the 1st respondent, on 17th December 2025, be vacated, and the 1st respondent be discharged.
3. The grounds on the face of the application are to the effect that section 135(4) of the Public Procurement and Asset Disposal Act is couched in mandatory terms, that a contract is to be signed within the tender validity period. It is averred that the tender validity period, for Tender No. EAPCPLC/RFP/009/2023, lapsed on or about 28th August 2024, being 30 days after 29th July 2024, which was the date of the decision of the Public Procurement Administrative Review Board, which had extended the tender validity period for 30 days, and no further extension was granted thereafter. It is also averred that the mandamus order cannot compel performance of an act prohibited by statute, and Kenya National Examinations Council; GGN & 9 others (Ex parte) vs. Republic [1997] eKLR [1997] KECA 58 (KLR) is cited.
4. The other ground is that the shareholding of the 2nd respondent has changed, for on 4th December 2025, Kalahari Cement Limited, a subsidiary of Pacific Cement Limited, within the Amsons Group, acquired 27% of the share capital from the National Social Security Fund, without triggering a mandatory takeover offer. Kalahari Cement Limited had previously acquired 29.2% shareholding, bringing its total shareholding to 56.2% of the total issued share capital of the 2nd respondent. Bamburi Cement Limited, another company within the Amsons Group, holds 12.5% shareholding in the 2nd respondent, bringing the total shares held by the Amsons Group to 68.7%, against 25.3% held by the National Treasury. That meant that the Government no longer holds a controlling interest in the 2nd respondent, by virtue of the definition of a state corporation in the State Corporations Act, Cap. 446, Laws of Kenya, and it is reasonably not a “public entity,” within the meaning of section 2 of the Public Procurement and Asset Disposal Act, as read with Article 227 of the Constitution.
5. It is averred that, subsequent to that change in shareholding, the composition of the board changed, with the 2 board members representing the Government, exiting on 20th February 2026, and being substituted by 2 non-Government directors. On 10th April 2026, the board member, representing the National Social Security Fund, also exited, to be replaced by a non-executive board member from the Amsons Group. It is submitted that the changes in the governance structure of the 2nd respondent has constrained the capacity of the 2nd respondent to comply with the impugned judgement.
6. It is argued that 3 years have lapsed, since the submission of the tender in May 2023, which has meant that there must have been changes in the cost of equipment and regulatory licensing requirements, and the technical and financial assumptions, upon which the original tender rested, are no longer current. It is submitted that the setting aside of the judgement would be just. It is averred that there has been goodwill, on the part of the respondents, and the applicant would not suffer any prejudice, which cannot be compensated in damages.
7. The affidavit in support is sworn by the 1st respondent, who is the General Manager and Chief Executive Officer of the 2nd respondent. He avers that the 2nd respondent had advertised a tender, No. EAPCPLC/RFP/009/2023, for design, supply, installation and commissioning of a grid tied solar PV plant. The tender closed on 4th May 2023. The Public Procurement Administrative Review Board rendered a decision, on 29th July 2024, in Request for Review No. 61 of 2024, which extended the tender validity period for 30 days. In the instant cause, the court, on 7th May 2025, issued orders of mandamus, directing the respondents to issue a notification of award, within 7 days, and to complete the procurement process, within 60 days. On 15th November 2025, the 1st respondent was found guilty of contempt of court, for failure to comply with the judgement.
8. The 1st respondent avers that he and the 2nd respondent had taken steps, since then, towards compliance with the orders of the court. A notification of award, dated 15th December 2025, was issued, payment of costs of Kshs. 250,000.00 was made, a performance guarantee was accepted, an implementation committee was constituted, and the 1st respondent attended court and apologised.
9. The 1st respondent further avers that the tender validity period for the impugned tender expired on or about 28th August 2024, going by section 135(4) of the Public Procurement and Asset Disposal Act, which expressly provides that “a contract shall be signed within the validity period.” He submits that the notification of award was issued on 15th December 2025, some 15 months after the lapse of the extended validity period. He argues that a mandamus order cannot issue to compel performance of an act prohibited by a clear statutory provision, and, for that reason, the respondents are unable, as a matter of law, to execute a contract in respect of a tender, whose validity period lapsed a long period ago.
10. The 1st respondents further avers that there are changes in the shareholding of the 2nd respondent, with Kalahari Cement Limited acquiring 29.2% shares, in the 2nd respondent, from Associated International Cement Limited and Cementia Holdings AG, and that an exemption application from a mandatory takeover offer had been lodged with the Capital Markets Authority, the regulator, on 12th November 2025, referring to a notice of intention published on 1st August 2025, and accepted on 5th August 2025, by the regulator. On 4th December 2025, the regulator approved acquisition of 27% from the National Social Security Fund, by Kalahari Cement Limited, without triggering a mandatory takeover offer. It is asserted that those acquisitions have placed the shareholding of Kalahari Cement Limited, in the 2nd respondent, at 56.2%. It is further asserted that Bamburi Cement Limited, which is also a member of the Amsons Group, together with Kalahari Cement Limited, holds 12.5% shareholding in the 2nd respondent, which translates to a total of 68.7% ownership of the 2nd respondent by companies within the Amsons Group. It is argued that the effect of that is that the Amsons Group has become the majority shareholder, with the Government holding a mere 25.3% and other shareholders holding the balance of 6.0%.
11. The 1st respondent avers that those changes in shareholding have also had an effect on the governance of the 2nd respondent, for on 20th February 2026, 2 members of the board, representing the Government, exited the board, and were replaced by new board members, who do not represent the Government. It is argued that that exit by Government board members meant that the Government was no longer exercising direct control over the 2nd respondent. On 10th April 2026, National Social Security Fund also formally exited from the board, and was replaced by a representative from a cement company in the Amsons Group. It is argued that the 2nd respondent is no longer a State corporation, within the meaning of the State Corporations Act, as the Government no longer holds a controlling interest in it. The 1st respondent avers that section 2 of the Public Procurement and Asset Disposal Act, defines a public entity, and the 2nd respondent no longer fits in that definition. It is further argued that the decision-making authority has shifted from the State, to the board of Kalahari Cement Limited and Amsons Group, which has materially and irreversibly altered the capacity of the respondents to comply with the impugned judgement.
12. The 1st respondent further avers that 3 years have lapsed since the submission of the tender, in May 2023, and the technical and financial assumptions underpinning it are no longer current, as there have been material fluctuations in the materials and components. He also avers that the regulatory licensing requirements, administered by the Energy and Petroleum Regulatory Authority and the National Construction Authority, and the grid connection arrangements with the Kenya Power and Lighting Company PLC, have also undergone changes. It is further averred that the bills of quantities that ought to have been prepared have not been finalised, and their finalisation cannot be completed within the timelines contemplated by the impugned judgement.
13. The 1st respondent avers that the respondents would suffer prejudice, if the judgement is not set aside, and if they are compelled to comply with the orders, whose enforceability is in question. It is further averred that whatever prejudice that the applicant stands to suffer would be compensable in damages.
14. Several documents have been attached to the affidavit of the 1st respondent, in support of the positions taken by the respondents in the matter. They include a copy of the tender document, dated May 2023, in respect of tender No. EAPCPLC/RFP/009/2023; a copy of the decision of the Public Procurement Administrative Review Board, in Request for Review No. 61 of 2024, of 29th July 2024; a copy of the judgement of the court, rendered herein on 7th May 2025; a copy of the ruling of the court, on contempt of court, rendered herein on 15th December 2025; a copy of the notification of intention to award tender, dated 15th December 2025; a copy of a document on the bank transfer of Kshs. 250,000.00, dated 12th March 2026; a copy of a letter, from the Advocates for the respondents, to the Advocates for the applicant, dated 7th April 2026, accepting the bank guarantee, obtained by the applicant; a copy of a notice, issued and published by Kalahari Cement Limited, relating to exemption from mandatory takeover, dated 12th November 2025; a copy of a notice of the Capital Markets Authority approval exempting mandatory takeover offer, dated 4th December 2026; a copy of a list of the shareholding in the 2nd respondent, as at 13th December 2025; a copy of a notice of appointment of 2 new directors, to the board of the 2nd respondent, and the exit from the board of 2 directors representing the State, dated 20th February 2026; a copy of a notice of appointment a new director to the board of the 2nd respondent, and the exit from the board of a director representing the National Social Security Fund, dated 10th April 2026; and a copy of a legal opinion, given to the respondents, by M&E Advocates LLP, dated 28th April 2026.
15. The applicant reacted to that application, vide an affidavit that was sworn by its Chairman and Chief Executive Officer, Mr. Berjeesh Dady Suty, on 22nd May 2026. He avers that the application was frivolous and in bad faith. It is averred that some of the compliances, with the orders of the Public Procurement Administrative Review Board and the court, came long after the new management had taken over. The respondents prevaricated, with respect to issuing the applicant with the notification of intention to award tender, and the same was furnished on 4th February 2026, only upon court intervention. The respondents also prevaricated over the matter of the contract performance guarantee, and the same was accepted after a number of court appearances. It is further averred that the respondents had intimated, on 7th April 2026, that they had initiated the process, only to backtrack upon a new Judge taking over the matter. It is asserted that the 1st respondent remains a contemnor and a convict, and should have no right of audience before the contempt is purged. The ruling on contempt of court was delivered on 15th December 2025, yet it took the respondents over 6 months for them to move the court for the review orders. The decree was passed on 7th May 2025, yet no appeal or review was sought of that judgement timeously. When notification of tender was being send on 4th February 2026, a new board of directors had taken over, and the new ownership was effective, but section 135(4) of the Public Procurement and Asset Disposal Act does not apply. The bank contract guarantee was given on 24th March 2026, the change of ownership had happened and the board of directors had changed.
16. It is asserted that it was the respondents who applied to the Public Procurement Administrative Review Board, in Request for Review No. 61 of 2024, for extension of time within which to issue the notification of award of the tender, and it cannot now be argued that the tender period had expired. It is averred that the change of ownership or shareholding of a company does not defeat the rights of a creditor, neither does it absolve the new owners from the existing liabilities of the company. It is also averred that due diligence before the new owners took over would have established the pre-existing decrees of the court and liabilities attaching to the respondents, and the respondents cannot in law be allowed to shirk responsibilities, on account of the newness of the board of directors.
17. Attached to that replying affidavit are several documents, some being the same as those annexed to the application by the 1st respondent. There is a document, from the bank, evidencing payment of Kshs. 250,000.00, dated 12th March 2026; there is the letter, dated 15th December 2025, from the 2nd respondent, to the applicant, of intention to award the tender, which was received on 4th February 2026; there is a copy of the same letter, of 15th December 2025, but without the date stamps embossed; there is a copy of a letter, dated 18th February 2026, from the applicant, addressed to the 1st respondent, accepting the tender; there is an insurers contractors performance bond, dated 19th February 2026, issued to the applicant, with respect to the tender; there is a letter, from the 2nd respondent, dated 5th March 2026, rejecting the performance bond issued to the applicant, dated 19th February 2026; there is a performance guarantee, by a bank, in favour of the applicant, dated 23rd March 2026, addressed to the 2nd respondent; there is a letter of 7th April 2026, from the Advocates for the respondents, accepting the performance guarantee dated 23rd March 2026, and intimating that the process of getting the contract signed were underway; there is an order of the court, of 17th March 2026, discharging the respondents from liability on costs; and there is the ruling delivered herein on 15th December 2025, convicting the 1st respondent of contempt of court.
18. Directions were taken, on 2nd June 2026, for canvassing of the application, by way of written submissions. Both sides have complied, by filing their respective submissions.
19. Those by the respondents are dated 5th June 2026. They identify 6 issues for determination, which turn on whether the court retains jurisdiction to re-visit or vary its orders, where supervening facts have rendered compliance unlawful, impracticable and impossible; whether a contract can be lawfully executed in light of lapse of the tender validity period, under section 135(4) of the Public Procurement and Asset Disposal Act; whether the court can take into account substantial changes in the ownership, governance, procurement status and market conditions affecting implementation of the tender; whether public interest favours enforcement of the existing order; whether the contemnor has audience; and costs. The decisions in Kariuki vs. Kiambu County Assembly & 3 others [2026] KECA 1049 (KLR); Okoiti & 2 others vs. Attorney General & 7 others [2020] KECA 589 (KLR); Niazsons (K) Limited vs. China Road & Bridge Corporation (Kenya) [2000] KCA 198 (KLR); Republic vs. Public Procurement Administrative Review Board & another Rentco Africa Limited (Ex parte) [2022] KEHC 12978 (KLR); Kwanza Estates Limited vs. JKUAT [2024] KESC 74 (KLR); Akber Abdullah Kassam Esmail vs. Equip Agencies Ltd & 4 others [2014] KECA 627 (KLR); and Rai & 3 others vs. Rai & 4 others [2014] KESC 31 (KLR) are relied upon.
20. The written submissions by the applicant are dated 18th June 2026. The said submissions turn on the delay in the bringing of the application, to review a judgement delivered on 7th May 2025; no appeal or review having been brought against the determination of the Public Procurement Administrative Review Board, in Request for Review No. 61 of 2024, which gave rise to the mandamus order of 7th May 2025; sitting and waiting for time to lapse so as to defeat the award of the tender; the respondents taking contradictory positions, in asserting that the 2nd respondent was no longer a public entity, in respect of which the Public Procurement Administrative Review Board could exercise jurisdiction, and asserting that the tender, the subject of the proceedings, had lapsed by effluxion of time; the issues around the 2nd respondent being a private entity were not raised when the matter was before the Public Procurement Administrative Review Board on 29th July 2024 and the court on 7th May 2025; the matter of the liabilities and assets of the 2nd respondent, at the point of change of ownership, and disclosure of the judgement herein to the new owners; and defrauding creditors or evading lawful decrees of the court. The decision in HC Misc. Application No. 257 of 1983, Nairobi Kura Mbae vs. The Land Adjudication Officer Chuka & another is cited.
21. The application seeks review, setting aside, vacating, discharge or variation of the judgement of 7th May 2025. Based on the material that has been presented by the respondents, who are the movers of the motion, there would be only 1 issue for determination, and that is whether a case has been made out for grant of the orders sought.
22. The respondents advance 3 distinct arguments in their quest. The first is that the tender validity period had lapsed, by the time the determination of the Public Procurement Administrative Review Board and the mandamus order on it were made, and a mandamus order could not issue to compel performance of an act prohibited by statute. The second is that the 2nd respondent was no longer a public entity, to which the Public Procurement and Asset Disposal Act could apply, following changes in its shareholding and governance. The third is that a considerable period of time had lapsed, between submission of the tender and when compliance with the mandamus order was being compelled, through the contempt orders of 15th December 2025, which means that prices of equipment and commodities had changed, and so had the applicable regulatory framework.
23. Before I analyse the matter on the basis of those 3 arguments, advanced by the respondents, let me first consider the matter of review, setting aside, vacating, discharge and variation of orders and decrees, for the prayers in the application invite me to grant orders along those lines. There could be jurisdiction issues around that. There could also be questions of propriety of grant of the prayers sought. That would call for disposing of those issues first, before I get into the merits of the application. What is targeted for review, setting aside, discharge, vacating, variation and reversal is the judgement that this court, presided over by Aburili J, delivered on 7th May 2025. The issue should be whether that judgement would be available for review, setting aside, discharge, vacating, varying or reversing, and, if it would, on what basis. What would be the principles applicable in whichever case.
24. The starting point should be with what each of these orders entail. Although these terms are sometimes used loosely, and interchangeably, they are not synonymous in law, for they describe different remedies, available under different circumstances, and have different legal consequences.
25. Setting aside a judgement or decree means to nullify it, so that it ceases to have legal effect, usually because of some procedural defect, or because justice requires that the matter be re-opened. The common grounds, upon which a judgement or decree may be set aside, include lack of service or proper service of summons, irregular entry of judgement, fraud, mistake, inadvertence or excusable error, denial of a fair hearing and existence of a defence raising triable issues. The effect of setting aside is that the parties are restored to the position that they were in before the judgement was entered, and the matter may proceed for hearing afresh. The leading local authorities on this are Shah vs. Mbogo [1967] EA 116, Patel vs. EA Cargo Handling Services Limited [1974] EA 75 and James Kanyita Nderitu vs. Marios Philotas Ghikas [2016] eKLR [2016] KECA 470 (KLR).
26. Reversal of a judgement is an appellate remedy, available upon an appellate court concluding that the trial court was wrong, and substituting the decision of the trial court with its own. A reversal would occur, or be made, where the law was wrongly applied, the evidence did not support the findings, the trial court misdirected itself and the court lacked jurisdiction. One distinction, between setting aside and reversal, is that reversal is not primarily concerned with procedural defects, but the correctness of the decision the subject of the appeal. Where, for example, the appellate court finds that the trial court misunderstood the law, when it entered judgement in favour of the person claiming, it would reverse that judgement, and, depending on the circumstances, it may substitute it with its own, based on the applicable law. See Mbogo vs. Shah [1968] EA 93 and Selle vs. Associated Motor Boat Co. Ltd [1968] EA 123.
27. With respect to vacating a judgement or decree, the term “vacate” would mean to render void or to cancel, and, in many common law jurisdictions, it would be substantially similar to set aside. However, in the Kenyan practice, “vacate” is, apparently, used commonly with respect to vacating orders, warrants, stays, ex parte proceedings and judgments entered irregularly. A court order that states that a judgement has been vacated would mean that that judgement is no longer operative. Therefore, the legal effect of vacating a judgement is indistinguishable from setting the judgement aside.
28. The Kenyan legal landscape has not developed a standalone doctrine for vacating a judgement, comparable to the doctrines of review, setting aside or appeal. When the courts in Kenya talk of vacating a judgement, the jurisdiction exercised would be that to set aside or review the judgement, or to declare it a nullity for want of jurisdiction or in exercise of some express statutory power. On account of that, the case law to support exercise of power by a court to vacate its own judgement, would be found under the jurisprudence of review and setting aside.
29. A central principle, used by Kenyan courts to vacate judgements, is functus officio, that is that once a court delivers a final judgement, it cannot thereafter re-visit the merits of the case, except through recognised procedures, such as review or correction of clerical errors, as was discussed in Odinga vs. Independent Electoral & Boundaries Commission & 3 others [2013] eKLR [2013] KESC 8 (KLR) and Telkom Kenya Ltd vs. Ochanda (Suing on His Own Behalf and on Behalf of 996 Former Employees of Telkom Kenya Ltd) [2014] eKLR [2014] KECA 600 (KLR), where it was explained that a court, which has finally determined a matter, cannot simply re-open it because it has changed its mind, it must derive authority from statute or a recognised jurisdiction such as review. The principle of functus officio, would, therefore, be a hurdle in seeking to vacate a judgement.
30. The other approach that may be adopted, by the court, to re-visit its own judgement, would be review, whose effect could be to vacate the judgement. It was warned, in National Bank of Kenya Ltd vs. Ndung’u Njau [1997] eKLR [1997] KECA 71 (KLR), that a review ought not be an appeal in disguise. A court cannot vacate its own judgement merely because it now believes that it may have been wrong, for where the complaint goes to the correctness of the decision, then the appropriate remedy would be appeal, for a judgement can only be re-visited on recognised review grounds. The principle, from National Bank of Kenya Ltd vs. Ndung’u Njau [1997] eKLR [1997] KECA 71 (KLR), then is that the power to vacate a judgement is not inherent and unrestricted. Benjoh Amalgamated Ltd & another vs. Kenya Commercial Bank Ltd [2014] KECA 872 (KLR) and Benjoh Amalgamated Limited vs. Kenya Commercial Bank Limited & another [2024] KECA 593 (KLR) also discussed the limited circumstances under which a court may re-visit concluded decisions, and emphasised finality in litigation, stressing on the court not endlessly reopening its own judgements, except where jurisdiction is expressly conferred by statute.
31. The other incidence would be with respect to null judgements, with regard to which the court could exercise the power to vacate them. Owners of the Motor Vessel “Lillian S” vs. Caltex Oil (Kenya) Limited [1989] KLR 1 [1989] eKLR [1989] KECA 48 (KLR), did not expressly deal with the subject, but its famous statement, that jurisdiction is everything, lays a foundation, upon which the courts can hold that judgements entered without jurisdiction, would be nullities, and may be set aside or vacated by the court which pronounced the judgement. In such a case, the court, vacating such a judgement, would not be reviewing the judgement, or exercising an appellate jurisdiction over it, but merely recognising that no valid judgement ever existed. Kenyan courts largely follow MacFoy vs. United Africa Company Limited [1961] 3 All ER, where it was declared that where a judgement is founded on a jurisdictional defect, rendering it void ab initio, the court may vacate it or set it aside, because it would be a nullity.
32. The vacating jurisdiction, if the phenomenon may be described as such, may be exercised in Kenya in the following circumstances. One, with respect to irregular judgements, as explained in James Kanyita Nderitu vs. Marios Philotas Ghikas [2016] eKLR [2016] KECA 470 (KLR), where an irregular judgement, such as a judgement entered without service, may be set aside or vacated ex debito justitiae, simply because it was improperly obtained. Two, in exercise of the review jurisdiction, as discussed in National Bank of Kenya Ltd vs. Ndung’u Njau [1997] eKLR [1997] KECA 71 (KLR), Nyamogo & Nyamogo Advocates vs. Kogo [2001] EA 173 and [1997] KECA 71 (KLR), where the court may effectively vacate part or all of its judgement where review grounds are established. Three, for lack of jurisdiction, based on Owners of the Motor Vessel “Lillian S” vs. Caltex Oil (Kenya) Limited [1989] KLR 1 [1989] eKLR [1989] KECA 48 (KLR), and the succession of cases that followed it.
33. The term discharge is used to refer to different things, with respect to judgements and orders in civil cases, and it is also used in criminal practice.
34. With respect to judgements, it does not carry the same meaning with setting aside or vacating the judgement. Rather, it is used with reference to a reason for relief from a judgement. The fact that a judgement has been discharged, is a ground for seeking relief from that judgement. A party may be relieved from a final judgement, if the same has been satisfied, released or discharged. It is about being released or excused from performing the obligations under the judgement. That release, or being excused from performing the obligations to the judgement, or settling the judgement, means that the judgement is no longer enforceable, on account of that release or discharge. It does not erase the judgement, but it can be used as a reason to have the judgement set aside or stayed. The debt would not stand cleared, for example, for it would be merely excused or waived.
35. Discharge is different from satisfaction. Discharge refers to release from an underlying obligation or a debt, not because the debt is settled or paid, but discharged, on account of the operation of the law. Satisfaction happens where the amount owed is in fact paid, to clear the debt, and, thereby settle or satisfy the judgement. Once the debt is paid, the judgment would be satisfied, and become unavailable for enforcement. Discharge and satisfaction, are related, but different, for both render the judgement unenforceable, but for different reasons, one releases the debtor from the debt or the obligation to settle it, in the other, the debtor actually pays off the debt.
36. Discharge of a judgement does not have the same effect as setting it aside. Both have the same effect or result, of rendering the judgement unenforceable.
37. Discharge releases the judgement-debtor from the debt or obligation, by making the debt legally uncollectible forever or permanently, and by removing the obligation. It effectively kills the debt or the obligation to satisfy the judgment, so that the debtor is released from the obligation to settle or satisfy it. That, however, leaves the judgement intact, until th
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