1. The application before this Court is the Notice of Motion dated 29th October, 2024. The application is brought Pursuant to Articles 22, 23 (3) (b) (f) 47, Article 48, Article 51 (1) and Article 165 (6) (7) of the Constitution of Kenya, 2010 and Section 175 (1) of the Public Procurement and Asset Disposal Act, Sections 7, 8, 9 10 and 11 of the Fair Administrative Action Act, the inherent powers of the court and all other enabling provisions of the Law. It seeks the following orders:
1) THAT an order of certiorari be and is hereby issued removing into the High Court the Respondent’s decision dated the 22nd October, 2024 dismissing the Request for Review Application No. 94 of 2024 in regard to Tender No. NCC/PSM/T/001/2024-2025 for Provision of Comprehensive Medical Insurance, Group Life and Last Expense Cover for State and Public Service Officers Cover for Nairobi City County for purposes of being quashed;
2) THAT an order of certiorari be and is hereby issued removing into the High Court the 1st and 2nd Interested Parties’ decision dated 18th September, 2024 disqualifying the Applicant’s bid in relation to Tender No. NCC/PSM/T/001/2024-2025 for Provision of Comprehensive Medical Insurance, Group Life and Last Expense Cover for State and Public Service Officers Cover for Nairobi City County for purposes of being quashed;
3) THAT an order of prohibition be and is hereby issued restraining the 1st and 2nd Interested Parties, their officers, servants and/or agents from executing a contract or any transaction in respect to Tender No. NCC/PSM/T/001/2024-2025 for Provision of Comprehensive Medical Insurance, Group Life and Last Expense Cover for State and Public Service Officers Cover for Nairobi City County with the 3rdInterested Party or any other company or body;
4) THAT an order of mandamus be and is hereby issued compelling the 1st and 2nd Interested Parties, their officers, servants and/or agents to re-evaluate the Applicant’s bid in respect to Tender No. NCC/PSM/T/001/2024-2025 for Provision of Comprehensive Medical Insurance, Group Life and Last Expense Cover for State and Public Service Officers Cover for Nairobi City County in accordance with the tender requirements and to award the tender to the lowest evaluated bidder;
5) THAT such further or other reliefs as this Honourable Court may deem just and expedient to grant;
6) THAT costs of the Application be provided for.
2. The application is supported by an amended Verifying Affidavit of one Mercy Ndegwa sworn on 25th October, 2024 and Statutory statement dated 8th November, 2024.
3. It is the Applicant’s case that the 1st and 2nd Interested Parties issued the subject Tender No. NCC/PSM/T/001/2024-2025 for Provision of Comprehensive Medical Insurance, Group Life and Last Expense Cover for State and Public Service Officers Cover for Nairobi City County (hereinafter referred to as the Tender) by way of advertisement on the national supplier’s portal www.tenders.go.ke which tender was closed/opened on 26th July, 2024 at 11.00 am.
4. The tender was open to all insurance service providers registered by the Insurance Regulatory Authority subject to payment of a non-refundable fee of Kshs. 1,000 in cash or bankers cheque payable to the Director of Supply Chain Management, Nairobi City County, City Hall, 4th Floor, Room 400, Supply Chain Management Office, P.O. Box 30075 – 00100, Nairobi, Tel. Nos. 0725 624 489/ 0738 041 292.
5. The Applicant submitted a responsive bid at a tender price of Kenya Shillings One Billion, Four Hundred and Eighty Four Million, Eight Hundred and Ninety One Thousand, Four Hundred and Seventy Six (Kshs. 1,484,891,476) for consideration and evaluation by the 1st and 2nd Interested Parties in accordance with the requirements of the tender document and the provisions of the public procurement laws on 26th July, 2024.
6. The Applicant posits that, vide a letter of notification of intention to award dated 6th August, 2024 and emailed to it on 7th August, 2024, the ex-parte Applicant was notified of the tender process and the decision of the 1st Interested Party to award the tender to the 3rd Interested Party at their bid sum of Kenya Shillings One Billion, Four Hundred and Ninety Five Million, Four Hundred and Seventy Four Thousand, Five Hundred and Seventy Seven (Kshs. 1,495,474,577).
7. Being aggrieved by the decision of the 1st and 2nd Interested Parties, The Applicant filed the Request for Review Application No. 80 of 2024 – The Kenyan Alliance Insurance Company Limited versus Accounting Officer, Nairobi City County Government and 2 Others before the Respondent and upon hearing the Request for Review the Respondent rendered its decision on 6th September, 2024 wherein it ordered inter alia that the letter of regret in respect to the Tender and addressed to the ex-parte Applicant and all other unsuccessful tenderers be nullified and set aside.
8. It is its case that Respondent in its decision ordered that the 1st Interested Party proceed with procurement process to its logical conclusion within fourteen (14) days of the said decision in accordance with the provisions of the Tender Document, the Constitution, the Public Procurement and Asset Disposal Act, 2015 (PPADA) and the Public Procurement and Asset Disposal Regulations, 2020.
9. It is further it’s case that pursuant to the said orders of the Respondent, the 1st Interested Party re-evaluated the Tender and thereinafter issued a letter of regret to it dated 18th September, 2024 citing the reasons for disqualification as follows; “we regret that your bid for the above tender was unsuccessful because you attained 66 percent which was below the 80 percent score required for financial evaluation.”
10. The Ex Parte Applicant contends that it reasonably believes that the 1st and 2nd Interested Parties failed to conduct the re-evaluation in accordance with the criteria set in the Tender Document. It is its case that it satisfied the requirements under the Tender.
11. The Applicant contends that actions of the 1st and 2nd Interested Parties were contrary to the provisions of Section 80 (2) of the PPADA, 2015 which provides that, “the evaluation and comparison shall be done using the procedures and criteria set out in the tender documents”.
12. It is the Applicant’s case that 1st and 2nd Interested Parties failed to evaluate its bid with all fairness, transparency, competitiveness, due diligence and cost effectiveness contrary to the requirements of the principles of public procurement enumerated under Articles 10 and 227 of the Constitution as well as Section 3 of the PPADA, 2015.
13. The Applicant avers that being aggrieved with the outcome of the re-evaluation it filed the Request for Review Application No. 94 of 2024 – The Kenyan Alliance Insurance Company Limited versus Accounting Officer, Nairobi City County Government and 2 Others before the Respondent.
14. The applicant posits that upon hearing and determination of the Application No. 94 of 2024, the Respondent through its Decision dated 22nd October, 2024 dismissed its Request for Review Application and it is for this reason that they filed the matter before this Honourable court.
15. It is the Applicant’s case that the Respondent acted arbitrarily, irrationally, unreasonably and in an ultra vires and violated its legitimated expectation. In its decision dated 22nd October, 2024, the Respondent evaluated the Tender and provided its remarks which in turn indicated that the ex-parte Applicant did not satisfy in its scoring the marks with respect to its bid document which action is ultra vires to its powers.
16. The Applicant contends that the Respondent erred in law by failing to take into account its affidavit evidence, well-researched and supported written submissions, authorities relied upon as well as oral arguments made on 17th October, 2024 thus breaching the constitutional and legal imperatives.
17. It is also its case that the Respondent’s decision making process is tainted with procedural impropriety, illegality and unreasonableness wherein the Respondent committed an error of the law by failing to uphold its constitutionally guaranteed rights to fair hearing, access to justice and fair administrative action in violation of Articles 47, 48 and 50 (1) as read with Section 4 of the Fair Administrative Action Act, 2015.
18. The Applicant contends that Respondent failed to consider the illogical nature in which the 1st and 2nd Interested Parties evaluated its bid in seeking to introduce new criteria within which to evaluate the Tender to the prejudice of the Applicant.
19. The Applicant argues that the Respondent’s remarks in relation to Technical Requirement No. 2 was discriminatory noting that the evaluation criteria applied by the 1st and 2nd Interested Party was carefully selected to lock out bidders such as the Applicant herein when they introduced new criteria to evaluate the Tender.
20. It is the Applicant’s case that the Respondent in considering its bid particularly Technical Requirement No. 10 acted unfairly, irrationally and unprocedurally in not advancing their reasons for deeming that the Applicant was not entitled to any marks under the said requirement noting that in fulfilling Technical Requirement No. 11 the ex-parte Applicant was equally compliant with Technical Requirement No. 10.
21. The Applicant argues that Respondent’s Decision is not only irrational but also unfair as a reasonable Board properly addressing itself to Paragraph 8 of the ex-parte Applicant’s Request for Review and the contents thereunder could never have arrived at such an unreasonable conclusion, almost in defiance of logic and acceptable judicial standards.
22. It also argues that the Respondent without authority, purported to sanction various illegalities, violations and irregularities and unlawful nullification of its bid by the 1st and 2nd Interested Parties contrary to the provisions of Sections 173 (a), (b), (c), and (e) of the PPADA hence acting ultra vires of its powers.
23. The Applicant contends that it stands to suffer loss and damage by way of loss of business opportunity on account of the Respondent’s illegal, unfair and unlawful actions and omissions.
24. The Applicant avers that its bid is valid and the lowest evaluated responsive bid and if the award of the tender is made in accordance with the tender document and the law, it would emerge as the successful bidder and unless this Application is heard and disposed of expeditiously, and stay orders granted as sought, the substantive judicial review application and proceedings shall be rendered nugatory and its right will be prejudiced.
25. The Applicant contends that no prejudice will be suffered by the Respondent or the Interested Parties if the orders sought herein are granted.
26. The Applicant filed its written submissions dated 8thNovember, 2024 where they submitted that this court has the capacity to hear and determine the Application herein as the same is not before this court for the determination of the merits of the case but rather the improprieties exhibited by the Respondent in its Decision of 22nd October, 2024.
27. Reliance is placed in the Court of Appeal case of Nairobi Civil Appeal No. 18 of 2001 – Municipal Council of Mombasa V Republic and Umoja Consultants Limited [2002] eKLR, where the court held as follows:
“The court would only be concerned with the process leading to the making of the decision. How was the decision arrived at? Did those who made the decision have the power to make it? Were the persons affected by the decision heard before it was made? In making the decision, did the decision maker take into account relevant matters or did he take into account irrelevant matters? These are the kind of questions a court hearing a matter by way of judicial review be concerned with, and such court is not entitled to act as a court of appeal over the decider; acting as an appeal court over the decider would involve going into the merits of the decision itself – such as whether there was or there was not sufficient evidence to support the decision – and that, as we have said, is not the province of judicial review.”
28. It is its submission that under Section 7 (2) of the Fair Administrative Action Act a court or tribunal may review an administrative action or decision to include where the administrator did not have jurisdiction or exceeded their jurisdiction or acted pursuant to delegated power in violation of a law prohibiting such delegation.
29. The Applicant submits judicial review reliefs are permissible where there is bias or reasonable suspicion of bias as well as in situations where the affected person was denied a reasonable opportunity to state their case. Additionally, other instances include situations of non-compliance with mandatory and material procedures and conditions precedent, procedural unfairness and errors of law. Judicial Review is also available where an administrator acts on ulterior motives calculated to prejudice the rights of the applicant, fails to take all relevant considerations into account, acts on the basis of illegal delegation and also in bad faith.
30. It places reliance on the case of Pastoli v Kabale District Local Government Council and others [2008] 2 EA 300 at pages 303 to 304 thus:
“In order to succeed in an application for Judicial Review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety: See Council of Civil Service Union V Minister for the Civil Service [1985] AC 2; and also Francis Bahikirwe Muntu and others V Kyambogo University, High Court, Kampala, miscellaneous application number 643 of 2005 (UR). Illegality is when the decision making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality…
Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards: Re An Application by Bukoba Gymkhana Club [1963] EA 478 at page 479 paragraph “E”.
Procedural impropriety is when there is failure to act fairly on the part of the decision making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative instrument by which such authority exercises jurisdiction to make a decision. (Al-Mehdawi v Secretary of State for the Home Department [1990] AC 876)”
31. The Applicant argues that the Respondent’s decision making process is tainted with procedural impropriety, illegality and unreasonableness wherein the Respondent committed an error of the law by failing to uphold the Applicant’s constitutionally guaranteed rights to a fair hearing, access to justice and fair administrative action.
32. The Applicant submits that the Respondent without authority, purported to sanction various illegalities, violations and irregularities and unlawful nullification of the Applicant’s bid by the 1st and 2nd Interested Parties contrary to the provisions of Sections 173 (a), (b), (c), and (e) of the PPADA hence acting ultra vires of its powers.
33. It also its submission that the manner in which the Respondent arrived at its decision in dismissing Request for Review Application No. 94 of 2024 shows no rational connection between the decision and the purpose for which it was taken other than to justify the illegality exhibited by the 1st and 2nd Interested Parties in evaluating the Applicant’s bid.
34. The Applicant prays for the orders as sought as the Respondent not only acted ultra vires of the PPADA and without and/or in excess of its jurisdiction but also arrived at its decision illegally irrationally and without reason.
Respondent’s case;
35. In opposition to the Applicants’ Application, the Respondent filed their Replying Affidavit sworn by James Kilaka on 4th November, 2024.
36. The Respondent posits that the application before this court is an appeal against its Decision dated 22nd October 2024 with respect to its findings on the Request for Review No. 94 of 2024 and is being disguised as a judicial review application. To this extent, this Honourable Court should decline to allow the Notice of Motion for want of jurisdiction to hear and determine an appeal against the Respondent’s Decision dated 28th September 2024.
37. It is the Respondent’s case that on 1st October 2024, the Applicant filed a Request for Review Application No. 94 of 2024 dated 1st October 2024 before it (hereinafter “Request for Review No.94 of 2024”) seeking the following orders:
a. The 1st and 2nd Respondent’s decision contained in the letter of notification dated 18th September, 2024 disqualifying the Applicant’s bid with respect to Tender No. NCC/PSM/T/001/2024-2025 for Provision of Comprehensive Medical Insurance, Group Life and Last Expense Cover for State and Public Service Officers Cover for Nairobi City County be and is hereby nullified and/or set aside.
b. The 1st and 2nd Respondent’s decision contained in the Letter of Notification dated 18th September, 2024 awarding Tender No. NCC/PSM/T/001/2024-2025 for Provision of Comprehensive Medical Insurance, Group Life and Last Expense Cover for State and Public Service Officers Cover For Nairobi City County to the Interested Party be and is hereby nullified and/or set aside.
c. An Order be and is hereby issued directing the 1st and 2ndRespondents to award the Tender to the Applicant as the lowest evaluated responsive bid as per the Tender Evaluation criteria.
d. In the alternative, an Order be and is hereby issued directing the 1st and 2nd Respondents to readmit the Applicant into the technical evaluation stage in Tender No. NCC/PSM/T/001/2024-2025 for Provision Of Comprehensive Medical Insurance, Group Life And Last Expense Cover For State And Public Service Officers Cover For Nairobi City County and to re-evaluate the Applicant’s Tender in accordance with the provisions of the Tender document, Constitution, the PPADA,2015 and the PPADA Regulations, 2020.
e. An order be and is hereby issued directing the Director General Public Procurement Regulatory Authority (PPRA) to supervise and oversee the tender re-evaluation in line with its oversight role to ensure compliance with the Orders of this Honourable Board.
f. An Order be and is hereby issued extending the tender validity period for a further Thirty (30) Days.
g. The Respondents be and is hereby ordered to pay the costs of and incidental to these proceedings; and
h. Such other or further reliefs as this Board shall deem just and expedient.
38. The Respondent avers that on 22nd October 2024, in exercise of the powers conferred upon it under the Public Procurement and Asset Disposal Act (hereinafter referred to as “the Act”) made the following final orders with respect to Request for Review No. 94 of 2024:
i. The request for review with respect to Tender No. NCC/PSM/T/001/2024-2025 for Provision of Comprehensive Medical Insurance, Group Life and Last Expense Cover for State and Public Service Officers for Nairobi City County be and is hereby dismissed.
ii. The 1st Respondent is hereby ordered to proceed with the procurement process of Tender No. NCC/PSM/T/001/2024-2025 for Provision of Comprehensive Medical Insurance, Group Life and Last Expense Cover for State and Public Service Officers for Nairobi City County to its logical conclusion in strict compliance with the provisions of the Tender Document, Regulations 2020, the Act and the Constitution.
iii. Considering the outcome of this Request for Review, each party shall bear its own costs in the Request for Review.
39. It is the Respondent’s case that in its Decision dated 22nd October 2024 in Request for Review No. 94 of 2024 considered the parties’ pleadings, documents, written and oral submissions, the list and bundle of authorities together with the confidential documents submitted to the Board pursuant to Section 67(3) (e) of the Act and found the following issues called for determination:
i. Whether the Nairobi City County Response shared with parties in the instant Request for Review by the Board’s Secretariat was a confidential document and was shared contrary to Section 67 of the Act.
ii. Whether the 2nd Respondent’s Evaluation Committee in its re-evaluation and scoring of the Interested Party’s bid document at the Technical Evaluation stage complied with the Board’s orders issued on 6th September 2024 in its Decision in Request for Review No. 80 of 2024.
iii. Whether the 2nd Respondent’s Evaluation Committee evaluated the Applicant’s tender at the Technical Evaluation stage in accordance with the provisions of the Tender Document read with Section 80 of the Act and Article 227(1) of the Constitution.
iv. What orders the Board should grant in the circumstances.
40. The Respondent avers that in determining the first issue it while cognizant of provisions under Section 67 of the Act considered circumstances leading to remittance of the Nairobi City County Response to the Board and subsequently to parties and held that the said response as shared by parties in the instant Request for Review was not a confidential document.
41. In determining the second issue the it took cognizance of the relevant provisions of the Constitution, the Act and the Technical Evaluation Criteria provided under Clause 2a) of Section III- Evaluation and Qualification Criteria at page 28 to 30 of the Tender Document and the scoring by the Evaluation Committee as captured in the Re-Evaluation Report submitted to it as part of the Confidential Documents pursuant to Section 67(3)(e) of the Act.
42. It is also its case that it proceeded to review the allegations raised by Applicant as against what it had submitted in its original tender document as laid out at pages 64 to 96 of its Decision dated 22nd October 2024 and found that the Applicant’s bid was fairly evaluated in all other technical requirements laid out in the Tender Document at the Technical Evaluation stage save for evaluation under Technical Requirement No. 8 where the Applicant was denied 3 marks and Technical Requirement No. 12 where the Applicant was denied 1 mark by the Evaluation Committee.
43. The Respondent contends that it took cognizance of the fact that the Applicant had been awarded 3 marks which were unwarranted with respect to Mercy Ndegwa- its Principal Officer/Chief Executive Officer and in summing up the Applicant’s technical scores and taking consideration the Respondent’s findings in its analysis, it established that the Applicant would have attained a maximum score of 67 marks out of the possible 80 marks which was insufficient in achieving the pass mark score of 80 percent.
44. The Respondent avers that contrary to the Applicant’s allegations, the Respondent in its Decision dated 22nd October 2024 took into account the Applicant’s affidavit evidence, well-researched and supported written submissions, authorities relied upon as oral arguments made on the 17thOctober 2024.
45. The Respondent also avers that it acted within the confines of the Constitution, the Act, Regulations 2020, the Fair Administrative Actions Act and the rule of law in its findings in Request for Review No. 58 of 2024.
46. It is the Respondent’s case that its findings in Request for Review No. 94 of 2024 took into account provisions of Article 227 of the Constitution, the Act and Regulation 2020 and as such the Decision dated 22nd October 2024 was well reasoned and was neither unlawful, misconceived, erroneous, irrational, nor in violation of the Ex parte Applicant’s Legitimate Expectations as alleged in the Statement, Verifying Affidavit and Notice of Motion by the Ex parte Applicant.
47. The Respondent contends that its decision on the Request for Review No.94 of 2024 was fair, reasonable, rational and lawful without overreaching the 1st Respondent’s mandate and jurisdiction.
48. The Respondent argues that the Applicant has failed to demonstrate any elements of illegality, irrationality, procedural impropriety and/or unfairness in the manner in which the Respondent considered and interrogated the evidence, documents, pleadings, and information before it in arriving at its Decision in Request for Review No. 94 of 2024.
49. The Respondent filed their written submissions dated 8th November, 2024 where it submitted that Judicial Review is more concerned with the manner in which a decision is made than the merits or otherwise of the ultimate decision. As long as the processes followed by the decision-maker are proper, and the decision is within the confines of the law, a court will not interfere as was held in Republic vs Attorney General and 4 others ex-parte Diamond Hashim Lalji and Ahmed Hasham Lalji[10]:-
“Judicial review applications do not deal with the merits of the case but only with the process. In other words, judicial review only determines whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters. It follows that where an applicant brings judicial review proceedings with a view to determining contested matters of facts and in effect urges the Court to determine the merits of two or more different versions presented by the parties the Court would not have jurisdiction in a judicial review proceeding to determine such a matter and will leave the parties to resort to the normal forums where such matters ought to be resolved. Therefore, judicial review proceedings are not the proper forum in which the innocence or otherwise of the applicant is to be determined and a party ought not to institute judicial review proceedings with a view to having the Court determine his innocence or otherwise. To do so in my view amounts to abuse of the judicial process. The Court in judicial review proceedings is mainly concerned with the question of fairness to the applicant......."
50. It also places reliance on Pastoli V Kabale District Local Government Canal and Others (2008) 2EA where the learned Judge stated;
“In order to succeed in an application for Judicial Review, the Applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety.
Illegality, is when the decision making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires or contrary to the provision of a law or its principles are instances of illegality----.
Irrationality, is when there is such gross unreasonableness in the decision taken or act done that no reasonable authority, addressing itself to the facts and the law before it would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards.
Procedural impropriety, is when there is failure to act fairly on the part of the decision making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice to act or to act with procedural fairness towards one to be affected by the decision – it may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislature instrument by which such authority exercises jurisdiction to make a decision.”
51. It is its submission that the Applicant has failed to demonstrate any elements of illegality, irrationality, procedural impropriety and/or unfairness in the manner in which the Respondent considered and interrogated the evidence, documents, pleadings, and information before it in arriving at its Decision in Request for Review No. 94 of 2024.
52. The Respondent prays that the Notice of Motion dated 29th October 2024 be dismissed with costs.
The 1st and 2nd Interested Parties case;
53. In opposition to the Applicants’ Application, the 1st and 2ndInterested Parties (hereinafter referred to as the IPs) filed their Replying Affidavit by sworn by Milka Thuku on 7thNovember, 2024 and written submission dated 9th November, 2024.
54. It is their case that the 2nd IP advertised an open tender being TENDER NO. NCC/PSM/T/001/2024-2025 FOR PROVISION OF COMPREHENSIVE MEDICAL INSURANCE COVER, GROUP LIFE AND LAST EXPENSE FOR STATE AND PUBLIC SERVICE OFFICERS FOR NAIROBI CITY COUNTY (hereinafter referred to as the “Tender”) on 8th July 2024 on the public procurement information portal (www.tenders.go.ke).
55. They argue that a total of 6 bids were received, evaluated and the tender awarded to the 3rd Interested Party herein at a bid sum of Kshs. 1, 495,474,577/= being the only responsive bid.
56. They deponed that aggrieved by the decision of the 2nd and 3rd Interested Parties, the Applicant filed Request for Review Application No. 80 of 2024 before the Respondent and Respondent rendered its decision on 6th September 2024 where it directed inter alia that:
a. The 1st Respondent directs the evaluation committee to admit the Applicant’s tender and that of the Interested Party to technical evaluation stage and proceed with re-evaluation of the Applicant’s tender and that of the Interested Party at the technical evaluation stage taking into consideration the Board’s findings in the request for review.
b. The 1st Respondent proceeds with the procurement process of the subject tender to its logical conclusion within 14 days of the said decision in accordance to the provisions of the tender document, Regulations 2020, the Act and the Constitution.
57. They argue that pursuant to the Board’s above directives, the Respondent subjected the Applicant’s and the 3rd Interested Party’s bids to technical evaluation. The re-evaluation was carried out on 11th September 2024. The Applicant scored 66 percent, which was below the threshold of 80 percent, and thus both did not proceed to the financial evaluation.
58. They argue that the 3rd the Interested Party scored 91 percent hence proceeded to the financial evaluation. It was subjected to financial evaluation in accordance with the provisions of financial evaluation and the tender was awarded to the 3rd Interested Party at a bid sum of Kshs.1, 495,474,577/= upon re-evaluation. On 18th September, 2023 all bidders were notified of the outcome of the re-evaluation.
59. It followed that aggrieved by the Respondent’s decision the 2nd and 3rd Interested Parties and the Applicant filed Request for Review Application No. 94 of 2024 before the Respondent that rendered its decision on 22nd October 2024 wherein the Applicant’s Request of Review Application was dismissed. The Board made a finding that the Applicant would have attained a maximum of 67 marks out of the possible 80 which would have been insufficient to achieve the pass mark of 80 percent.
60.Thereafter the Applicant aggrieved by the decision filed the instant application which Application is an appeal against the decision of the Respondent.
61. They argue that the Respondent’s decision is in line with Section 4 of the Fair Administrative Action Act 2015 and Articles 10, 47,28, 50(1) 159 and 227 of the Constitution of Kenya, 2010. The Respondent also acted within its mandate and powers as conferred upon it by sections 28 and 173 of the Public Procurement and Asset Disposal Act.
62. They submit that Section 80(2) of PPADA provides that:
“The evaluation and comparison shall be done using the procedures and criteria set out in the tender documents and, in the tender for professional services, shall have regard to the provisions of this Act and statutory instruments issued by the relevant professional associations regarding regulation of fees chargeable for services rendered."
63. Pursuant to the Respondent's orders of 6th September 2024, the Interested Party's Evaluation Committee subjected the Applicant's and the 3rd Interested Party's to technical evaluation in line with Article 227 of the Constitution and section 80(2) of the PPADA.
64. It is their submission that the tender document stipulated that to proceed to the financial evaluation, bidders must have score 80 percent and above of the technical score. Only Bidders who scored 80 percent and above of the technical score would proceed to the financial evaluation stage and the Applicant scored 66 percent which was below the threshold of 80 percent and thus both did not proceed to the financial evaluation. The 3rd Interested Party scored 91 percent hence proceeded to the financial evaluation.
65. They make reliance to the case of Republic v Public Procurement Administrative Review Board and 3 others Ex parte Applicant Korea Expressway Corporation (KEC)/ Korea Consultants International Co. Ltd (KCI): and Apec Consortium Limited and another; Tecnica Proyectos S.A and Gibb Africa Limited Consortium and another (Interested Parties) [2022] eKLR where the Court held as follows:
"The Board was clear on the import of Section 80(1) and (2) of the Act read with Article227(1) of the constitution which is a requirement that an evaluation committee is to evaluate tenders in a system that is fair using the criteria and procedure laid out in a tender document. The board proceed to elaborately analyse the criteria to be used and directed the procuring entity accordingly."
66. They further submit that the Respondent's decision can only be disturbed if the decision is tainted with illegality, irrationality and procedural impropriety or if the Respondent acted ultra vires.
67. The IPs contend that Respondent's decision is in line with Section 4 of the Fair Administrative Action Act 2015, Articles 10, 28, 47, 50(1), 159 and 227 of the Constitution of Kenya,2010 and within its mandate and powers as conferred upon it by sections 28 and 173 of the Public Procurement and Asset Disposal Act.
68.They 1st and 2nd Interested party pray that the entire Application be dismissed with costs to them.
The 3rd Interested Parties case;
69. In opposition to the Applicants’ Application, the 3rd Interested Party (hereinafter referred to as the IP) filed its Replying Affidavit sworn on by Njeri Jomo on 7th November, 2024 and written submission dated 8th November, 2024.
70. The 3rd IP avers that it participated in the tender No. NCC/PSM/T/001/2024-2025for provision of Comprehensive Medical Insurance Group Life and last Expense Cover for the state and Public Service Officers Cover for Nairobi County (hereinafter referred to as the Tender) as advertised by the 1st and 2nd Interested Party.
71. Its tender having conformed to all the eligibility and other mandatory requirements in the tender documents, the Procuring Entity awarded the tender to it vide a letter of Notification of Award dated 6th August 2024.
72. It then followed that Applicant aggrieved by the decision of the 1st and 2nd IPs challenged the decision vide the Request for Review Application No. 80 of 2024, filed with the Respondent.
73. The 3rd IP posits that the application in Request for Review No.80 of 2024 was heard and determined in favour of the Applicant. In a decision delivered on 6th September 2024, the Board directed, inter alia, that the 1st and 2nd IPs to admit the Applicant's tender to the technical evaluation stage and proceed with the re-evaluation of the tenders taking into account the Respondent's findings.
74. It is its case that the 1st and 2nd IPs complied with the Respondent's decision and conducted a re-evaluation of the Applicant's tender at the Technical stage. The Applicant was required to score over 80 marks for purposes of proceeding to the Financial Evaluation stage.
75. The 3rd IP deponed that the Applicant scored 66 marks at the Technical evaluation stage and the Applicant proceeded to challenge the second evaluation and filed Request for Review Application No.94 of 2024.
76. The 3rd IP argues that the Respondent analysed and reviewed the decision of the 1st and 2nd IP to re-evaluate the Applicant’s tender and in its decision delivered on 22nd October 2024, the Respondent confirmed that the 1st and 2nd Interested Party had followed the requisite procedure in awarding the tender to it as the Applicant did not attain the required scores to move from the technical stage to the financial stage.
77. The Applicant was not satisfied with the decision dated 22nd October 2024 and proceeded to file the present Application JR E242 of 2024 which is before this Honourable Court for determination.
78. It is the 3rd IP’s submission that this application does not meet the judicial review principles as enunciated in the case of Pastoli v Kabale District Local Government Council and others (2008)EA supra. They argue that the applicant has failed to illustrate how the Respondent's decision is illegal, irrational and marred with procedural impropriety. Further, the Applicant has not demonstrated that the decision is illegal or ultra vires and outside the functions of the Respondent to warrant the exercise of this Honourable Court's Judicial review jurisdiction.
79. The 3rd IP also submits that judicial review is concerned with reviewing not the merits of the decision but the decision making process itself as the role of the court in judicial review is supervisory not appellate as it was held by the Court of appeal in the matter of Republic v Minister for Lands and Johnam Gichohi Hazaron Ex-Parte Peterson Thiga (Judicial Review 24 of 2011)
80. The 3rd IP further submits that the instant Application is an appeal disguised as a judicial review to the extent that it seeks a different outcome on the merits of the Respondent's decision. In any event, the application does not disclose any of the judicial review grounds of illegality, procedural impropriety or irrationality to warrant the invocation of this Honourable Court's judicial review jurisdiction.
81. Reliance is made on the case of OJSC Power Machines Limited, transcentury Limited and Civicon Limited v Public Procurement administrative review Board Kenya, Electricity generating Company Limited (KENGEN) Civil Appeal 28 of 2016, in this case similar, to the one before this court, the application was premised on the grounds that technical evaluation of the proposals was not conducted in accordance with the law; the appellant's case that the 2nd Respondent's decision making process was flawed because it did not adhere to the terms of the tender; that the decision was made in violation of the law; and that though the issue was raised, the 1st respondent failed to make a determination on it.
82. The Court of Appeal in deciding this matter, held that: -
“the purpose of judicial review is to ensure that a party receives fair treatment in the hands of public bodies; that it is the purpose of judicial review to ensure that the public body, after according fair treatment to a party, reaches on a matter which it is authorized by law to decide for itself a conclusion which is correct in the eyes of the court in judicial review proceedings. Put in another way, judicial review is concerned with the decision making process, not with the merits of the decision itself. In that regard, the court will concern itself with issues as to whether the public body in making the decision being challenged had the jurisdiction, whether the persons affected by the decision were heard before the decision was made and whether in making the decision, the public body took into account irrelevant matters or did not take into account relevant matters."
“the court, considering a judicial review application, must never consider its role as appellate court and must avoid any temptation to go into the substance of the impugned decision itself or to ask questions whether there was or there was no sufficient evidence to support the decision of the public body concerned. It is not for the court or individual judges to substitute their opinion for that of the public body constituted by law to decide the matter in question."
"to justify interference with the decision of a public body, the court must be satisfied that that decision is so grossly unreasonable, so outrageous in defiance of logic or acceptable moral standards that no reasonable authority or body addressing itself to the facts and the law would have arrived at it. This is what has come to be known as the Wednesbury principle in Judicial review."
83. The Application does not show any breach by the Respondent to warrant grant of judicial review orders. Applicant in its application states that the Respondent's decision violated its right to fair hearing, access to justice and fair administrative action by failing to take into account its affidavit evidence, written submissions, authorities relied upon as well as the oral arguments. It is a well settled principle of law that, he who alleges must prove, it is the duty of the Applicant to prove that the Respondent denied it a fair hearing and access to justice and that the Respondent's decision was tainted with procedural impropriety, illegal and irrational.
84. It is the 3rd Interested Party's submission that Applicant is trying to dictate the terms and conditions of the Tender Document to favour it. It is clear that the Applicant is hell-bent on being awarded a tender that it does not have the capacity to service, and as such the 3rd IP believes that the Respondent's decision was merited and within the confines of the law.
85. Reliance is also made in the case of High Court in Miscellaneous Civil Application 140 of 2019 Republic v Public Procurement Administrative Review Board; Accounting Officer, Kenya Rural Roads Authority and 2 others (Interested Parties) Ex Parte Roben Aberdare (K) Ltd [2019] eKLR where the court stated as follows: -
“It is evident that compliance with the requirements for a valid tender process including terms and conditions set out in the bid documents, issued in accordance with the constitutional and legislative procurement framework, is thus legally required. These requirements are not merely internal prescripts that a bidder or the Respondent may disregard at whim. To hold otherwise would undermine the demands of equal treatment, transparency and efficiency under the Constitution. Mandatory requirements in bid document must be complied with. Deviations from mandatory bid requirements should not be permissible.”
87. The 3rd IP contends that the evaluation conducted by the 1st and 2nd IP and the subsequent decision to uphold the evaluation by the Respondent was reasonable, fair, and legal and therefore it was merited.
88. The 3rd IP argues that the instant Application is devoid of merit, lacks any foundation in fact or law and is an outright abuse of the process of review, frivolous and vexatious and is clearly calculated to defeat or unreasonably delay the award of the subject tender to it and prays that this Honourable Court dismisses it with costs.
Analysis and determination;
89. Upon perusing the pleadings and the rival submissions of the parties alongside the authorities cited, this court finds that the issue for determination is whether the Applicant is entitled to the orders sought.
90. the case of Pastoli v Kabale District Local Government Council and others [2008] 2 EA 300 at pages 303 to 304 thus:
“In order to succeed in an application for Judicial Review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety: See Council of Civil Service Union V Minister for the Civil Service [1985] AC 2; and also Francis Bahikirwe Muntu and others V Kyambogo University, High Court, Kampala, miscellaneous application number 643 of 2005 (UR). Illegality is when the decision making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality…
Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards: Re An Application by Bukoba Gymkhana Club [1963] EA 478 at page 479 paragraph “E”.
Procedural impropriety is when there is failure to act fairly on the part of the decision making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative instrument by which such authority exercises jurisdiction to make a decision. (Al-Mehdawi v Secretary of State for the Home Department [1990] AC 876)”
91. In Republic v Public Procurement Administrative Review Board and 3 others Ex parte Applicant Korea Expressway Corporation (KEC)/ Korea Consultants International Co. Ltd (KCI): and Apec Consortium Limited and another; Tecnica Proyectos S.A and Gibb Africa Limited Consortium and another (Interested Parties) [2022] eKLR the Court held as follows:
“The Board was clear on the import of Section 80(1) and (2) of the Act read with Article227(1) of the constitution which is a requirement that an evaluation committee is to evaluate tenders in a system that is fair using the criteria and procedure laid out in a tender document. The board proceed to elaborately analyse the criteria to be used and directed the procuring entity accordingly."
92. Section 80(2) of PPADA provides that:
“The evaluation and comparison shall be done using the procedures and criteria set out in the tender documents and, in the tender for professional services, shall have regard to the provisions of this Act and statutory instruments issued by the relevant professional associations regarding regulation of fees chargeable for services rendered."
94. Pursuant to the Respondent's orders of 6th September 2024, the 1st Interested Party's Evaluation Committee subjected the Applicant's and the 3rd Interested Party's to technical evaluation.
95. The tender document stipulated that to proceed to the financial evaluation, bidders must have score 80 percent and above of the technical score. Only bidders who scored 80 percent and above of the technical score would proceed to the financial evaluation stage.
96. The record shows that the applicant scored 66 percent which was below the threshold of 80 percent and thus did not proceed to the financial evaluation. The 3rd Interested Party scored 91 percent and proceeded to the financial evaluation.
97. It is clear that the Evaluation Committee undertook the technical evaluation criteria contained at pages 28-30 of the tender document and in line with Article 227 of the Constitution and section 80(2) of the PPADA.
98. This court is satisfied that the Respondent in its Decision dated 22nd October 2024 in Request for Review No. 94 of 2024 considered the parties’ pleadings, documents, written and oral submissions, the list and bundle of authorities together with the confidential documents.
99. This court has taken time to evaluate whether in so doing the Respondent acted within the constitutional and statutory dictates as set out in the procedural Articles 47, 227 of the Constitution, The PPAD Act, The Regulations, The Fair Administrative Action Act and the tender documents.
100. Further and after cautioning myself not to get into the merits of the case and reminding myself that this is not an appellate court and that I cannot interfere with the Respondents’ discretion, this court is satisfied that the Respondent took cognizance of the relevant provisions of the Constitution, the PPAD Act and the Technical Evaluation Criteria provided under Clause 2a) of Section III- Evaluation and Qualification Criteria at page 28 to 30 of the Tender Document and the scoring by the Evaluation Committee as captured in the Re-Evaluation Report submitted to it as part of the Confidential Documents pursuant to Section 67(3)(e) of the Act.
101. The court is satisfied that the Applicant was accorded the right to fair hearing under Article 47 of The Constitution.
102. Consequently, it is this court’s finding and I so hold that any interference with the Respondent’s findings will amount to sitting on appeal which this court cannot do.
Disposition;
103. The Applicant has not tendered evidence to prove that the respondent acted illegally, unprocedurally and with any impropriety as to warrant the grant of the order of certiorari or Mandamus as sought.
Order;
The Application is dismissed with costs.