Brief background:
1. On 28th March 2024 the 2nd Respondent invited the ex-parte Applicant and other named parties through restricted tendering method to submit bids in Tender No. KAA/RT/MBD/0207/2023-2024 for provision of Meet and Assist services at the Jomo Kenyatta International Airport (JKIA).
2. The tender had an evaluation criterion, that called upon the bidders to demonstrate that they had experience in providing meet and assist services at an international airport.
3. This requirement was to be demonstrated through the following:
i. Documentary evidence such as copies of (45 marks)
a) At least FIVE (5) valid meet and assist airport passes for its own personnel for operations at Jomo Kenyatta International Airport.
OR
b) At least TWO (2) valid meet and assist contracts/ licenses/ agreements signed between the bidder or its subsidiary company with an international airport showing a minimum 5 years' experience in providing meet and assist services
ii. Recommendation letters from at least THREE (3) meet and assist corporate clients addressed to the MD/CEO KAA and specific to this tender. (25 marks
4. This criteria was further clarified under Addendum No.1 issued to all bidders and which distributed the weightage as follows: 50 and 30 marks for items (i) and (ii) of the Experience category respectively, 10 marks for the Business Plan category and 10 marks for the Personnel category, totaling 100 marks.
5. The Ex-parte Applicant’s was thereafter issued with a regret letter dated 30 th May 2024.
6. Being dissatisfied with this, the ex-parte Applicant filed a Request for Review dated 5th June 2024 before the 1st Respondent herein on the basis that the Authority relied on a wrong interpretation of the experience requirements under the tender document to disqualify the ex-parte Applicant.
7. The Request for Review proceeded for a virtual hearing that culminated in a decision dated 2nd July 2024 wherein the 1st Respondent, dismissed the Request for Review.
The Applicant’s Case;
8. The Applicant is dissatisfied with the decision dated 2nd July 2024 and it has filed the application dated 5th July 2024 wherein the applicant seeks;
Orders:
1) THAT an order of certiorari be and is hereby granted to remove into this Honourable Court and quash the decision, finding and orders of the Public Procurement Administrative Review Board Tribunal, the 1st Respondent, made and or issued on 2nd July, 2024 and allow the Applicant's request for review dated 5th June, 2024 be and is hereby allowed.
2) THAT an order of prohibition be and is hereby granted restraining the 2nd Respondent from entering into any contracts, executing any contracts with any winning bidders namely Willis Protocol and Concierge Services Limited and TAV Africa Operations Limited JV TAV Isletme Hizmetleti, the 1st and 2nd Interested Parties respectively, with respect to Tender Number KAA/RT/MBD/0207/2023-2024 for provision of meet and assist services at Jomo Kenyatta International Airport.
3) THAT costs of this substantive be borne by the 2nd Respondent.
9. The application is supported by the Verifying Affidavit of Henry Lasoi on 6th June, 2024, the Statutory Statement dated 4th July, 2024, the Verifying Affidavit sworn by Henry Lasoi.
10. It is its case that in the decision delivered by the 1st Respondent on 2nd July, 2024, it held and found that the tender was evaluated in accordance with Section 80 (2) of the Act as read together with Article 227 (1) of the Constitution with regard to Clause 1 (ii) if Part II of the Tender document. The 1st Respondent proceeded to dismiss the Request for Review and further directed that the procurement process proceeds to its logical and lawful conclusion.
11. It is further it’s case that the issues of contention in the Request for Review and now subject of the suit herein are as follows:
i. Whether the requirement to submit recommendation letters from at least three meet and assist corporate clients addressed to the MD/CEO KAA was mandatory.
ii. Whether the evaluation team of the 2nd Respondent wrongfully evaluated the Applicant's submission or bid.
12. The 1st Respondent set out two (2) issues for determination and held as follows:
i. At Paragraph 76 cited Oxford Dictionary meaning of the word "or' as disjunctive in that it is used to introduce another possibility.
ii. It held at Paragraph 78 as follows:
“In our considered view the requirement for at least two (2)valid meet and assist contracts/license/agreements signed between the bidder, its subsidiary company with an international airport showing a minimum 5 years' experience in providing meet and assist services was provide as another possible way for a bidder to demonstrate its documentary evidence other than having the five (5) valid meet and assist airport passes for its own personnel for operations at Jomo Kenyatta International Airport and a bidder who meets this criteria would be scored 50 marks as seen from Addendum 1 which clearly set out that the experience under Clause 1 (i) would score 30 marks. As such, the criteria under Clause 1 (11) for 'recommendation letters from at least three (3) meet and assist corporate clients addressed to the MD/CEO KAA and specific to the subject tender was distinct and independent of the criteria mentioned above Clause 1 (i) of the tender document'. The above evaluation criteria were therefore not ambiguous as alleged by the Applicant and had only one interpretation."
13. It is the Applicant’s case that, if you consider the explanation given by the Oxford Dictionary on the meaning of “OR”, it clearly states it is sued to introduce another possibility. It is also indicated that the word “or” is used in negative sentences when mandatory two or more things and it proceeds to cite examples like, "He can't read or write". At explanation 7 it is also stated that the word “or “is used" to introduce a different or opposite idea".
14. Under explanation one, the Dictionary cites an example and we quote, "In a list or is usually before the last item; it can be black, white or grey".
15. Part 11 under Title, "Evaluation of Tenderer's Technical Requirements" states as follows under second column;
"Firms must demonstrate they have been providing meet and assist services at an International Airport. This shall be demonstrated by the following:
i. Documentary evidence such as copies of: (45 marks)
a) At least five (5) valid meet and assist airport passes for its own personnel for operations at Jomo Kenyatta International Airport.
OR
b) At least two (2) valid meet and assist contracts/licenses/agreements signed between the bidder or its subsidiary company with an International Airport showing a minimum of 5 years' experience in providing meet and assist services.
ii. Recommendation letters from at least three (3) meet and assist corporate clients addressed to the MD/CEO/KAA and specific to this tender (25 marks)."
16. Whereas the 1st Respondent rightfully finds that the word "OR" is used to introduce another possibility, it however erred when it failed to acknowledge that on the face of the said contested provision of the tender document the word 'OR" is introduced in capital letter immediately after Clause (i) (a) and thereafter (b) and (ii) are thereafter introduced. Clearly by inserting the word "OR" in capital letters the 2nd Respondent in its plain reading of the document indeed that the requirements mentioned thereafter are an option to (i) (a). The question that the 1st Respondent failed to weigh their minds or is why the word "OR" is on its own Paragraph and not inserted immediately following the word “Airport".
17. By failing to apply its mind on the said issue, the 1st Respondent arrived at erroneous conclusion and finding. The 1st Respondent therefore failed to exercise its powers that required them to ensure that a tender document is prepared in a manner that would not be interpreted different by the Evaluation team of the 2nd Respondent.
18. It is the Applicant's contention therefore that the 2nd Respondent's evaluation committee abused its powers where it deemed the Applicant's tender as non-responsive based on a requirement which the tender document on its face clearly indicated it was an alternative requirement.
19. Reliance is placed in the book of “Interpretation of Contracts by Sweet & Maxwell, 5th Edition", they have defined the meaning of ambiguity to mean, “a statement may be said to be ambiguous when it has two (or none) primary meanings each of which may be adopted within the distortion of the language" and it cites the case of Burns Philliph Hardware Limited vs Howard China Pty Ltd which defined ambiguity as:
“two or more plausible meanings when the context of the document is taken into account in the light of any knowledge any ordinary intelligent reader of the document would bring to the meaning of it”. We have attached the write up to these Submissions.
20. The Applicant submits therefore that the tender document introduced the requirement to submit recommendation letters from at least three (3) meet and assist corporate clients as another possibility to the requirement that a bidder submits at least five (5) valid meet and assist airport passes for its own personnel for operations at Jomo Kenyatta International Airport.
21. It argues that if indeed Clause (ii) aforesaid was mandatory, the question that would arise is why the 2nd Respondent would under (i) (a) require five (5) meet and assist airport passes for a bidder's personnel for operations at Jomo Kenyatta International Airport and not also stipulate an alternative similar meet and passes at an International Airport since it was acknowledged that it is only the Applicant who had been offering meet and assist services at JKIA and therefore none of the Interested Parties would have met the criteria under (i) (a).
22. Had the 1st Respondent properly evaluated its mind on the said requirement, it would have held that the requirements were set out to disadvantage the Applicant and favour the Interested Parties.
23. This being a judicial review suit, the Honourable Court would consider whether the 1st Respondent properly applied its mind in the request for review filed by the Applicant and whether its decision is in accordance with the law.
24. It argues that the evaluation team of the 2nd Respondent proceeded to ascribe a different meaning to the contested requirements of the tender document.
25. Reliance is placed in the case of Republic vs Public Procurement Administrative Review Board & 2 Others Ex-Parte Higawe Enterprises Limited (2017) eKLR, the Court coated with approval the case of Republic vs Public Procurement and Administrative Review Board & Others Ex-Parte Olive Telecommunications POP Limited (2014) eKLR which the Court stated:
“we are of the view that in order to achieve a transparent system of procurement as required under Article 227 of the Constitution, it is important that procuring entities should set out to achieve a certain measure of precision in their language intender documents and not leave important matters for speculation and conjecture as was the case in this matter”
26. The Applicant is persuaded that this is the exact situation in the tender subject of the Judicial Review proceedings herein.
1st Respondent’s Case
27. The 1st Respondent opposes the application through the Affidavit of James Kilaka.
28. According to him, the application is an appeal against the 1st Respondent’s Decision dated 2nd July 2024 with respect to the findings of the 1st Respondent on the merits of the Request for Review No. 53 of 2024 and is being disguised as a judicial review application and this Court lacks jurisdiction to hear and determine an appeal against the 1sRespondent’s decision dated 2nd July 2024.
29. On 11th June 2024, the Ex Parte Applicant herein filed a Request for Review Application No. 53 of 2024 dated 5th June 2024 before the 1st Respondent.
In its findings the 1st Respondent decided that The Request for Review dated 5th June 2024 and filed on 11th June 2024 be and is hereby dismissed for lacking in merit.
30. In determining whether the 2nd Respondent’s Evaluation Committee evaluated the Applicant’s tender with regard to Clause 1 of Part II: Evaluation of Tenderer’s Technical Requirements at page 22 to 23 of the Tender Document in accordance with the provisions of the Tender Document as read with provisions of the Constitution, the Act and Regulations 2020, the 1st Respondent noted that the bone of contention was on the interpretation of the provisions of Clause 1 of Part II: Evaluation of Tenderer’s Technical Requirements at page 22 to 23 of the Tender Document and if the same was ambiguous as alleged by the Ex parte Applicant.
31. The 1st Respondent at paragraphs 73 to 79 of its Decision dated 2nd July 2024 took note of the evaluation criteria set out under Clause 1 of Part II: Evaluation of Tenderer’s Technical Requirements at page 22 to 23 of the Tender Document and clarifications made by the Procuring Entity in Addendum 1 dated 5th April 2024, observed the meaning of the words ‘or’ and ‘ambiguous’ and proceeded to issue an interpretation of the fore mentioned evaluation criteria to mean that; ‘it was a mandatory requirement for a bidder to demonstrate that it had been providing meet and assist services at an international airport which would be evidenced by (a) documentary evidence such as copies of at least five (5) valid meet and assist airport passes for its own personnel for operations at Jomo Kenyatta International Airport or at least two (2) valid meet and assist contracts/licenses/agreements signed between the bidder or its subsidiary company with an international airport showing a minimum 5 years’ experience in providing meet and assist services, and (b) Recommendation letters from at least three (3) meet and assist corporate clients addressed to the MD/CEO KAA and specific to the subject tender.’
32. The 1st Respondent at paragraph 78 of its decision further expounded on the aforementioned evaluation criteria and found the same to have only one interpretation and not being ambiguous as alleged by the Ex parte Applicant.
33. The 1st Respondent found that it was not in dispute that the Ex parte Applicant had not submitted the recommendation letters from at least three (3) meet and assist corporate clients addressed to the MD/CEO KAA and specific to the subject tender rendering its tender non-responsive to the evaluation criteria under Clause 1(ii) of Part II: Evaluation of Tenderer’s Technical Requirements at page 22 to 23 of the Tender Document.
34. The 1st Respondent rightfully found that the Ex parte Applicant’s tender was non-responsive in line with the provisions of the Tender Document, the Constitution, the Act and Regulations 2020, the Fair Administrative Actions Act and the rule of law in its findings in Request for Review No. 53 of 2024.
35. The 1st Respondent’s findings in Request for Review No. 53 of 2024 took into account provisions of Article 227 of the Constitution, the Act and Regulation 2020 and as such the Decision dated 2nd July 2024 was well reasoned and was neither ultra vires, unlawful, irrational, nor in violation of the Ex parte Applicant’s Legitimate Expectations.
36. The 1st Respondent’s Decision dated 2nd July 2024 in Request for Review No. 53 of 2024 was not tainted with any of the grounds for judicial review and is fair, reasonable, rational and lawful without overreaching the 1st Respondent’s mandate and jurisdiction.
37. It is its case that the 1st Respondent observed the rules of natural justice in the exercise of its statutory mandate and powers under Section 28 and Section 173 of the Act respectively and ensured that all parties to the Request for Review No. 53 of 2024 were granted an opportunity to be heard on all issues that emerged from parties pleadings, cases, and confidential documents submitted pursuant to section 67 of the Act through their oral and written submissions and by considering and interrogating all the documentation and information before it that was material to Request for Review No. 53 of 2024 before determining the said application.
38. It is its case that should the application succeed then this Court should remit the Request for Review Application No. 53 of 2024 for re-hearing by the Respondent.
2nd Respondent's Case:
39. The second Respondent opposes the application through the affidavit of Vincent Korir, the General Manager Procurement and Logistics.
40. On 28th March 2024 it invited the ex-parte Applicant and other named parties through restricted tendering method to submit bids in Tender No.KAA/RT/MBD/0207/2023-2024 for provision of Meet and Assist services at the Jomo Kenyatta International Airport (JKIA).
41. As part of the tender evaluation criteria, the bidders were required to demonstrate that they had experience in providing meet and assist services at an international airport.
42. This requirement was to be demonstrated through the following:
i. Documentary evidence such as copies of (45 marks)
a. At least FIVE (5) valid meet and assist airport passes for its own personnel for operations at Jomo Kenyatta International Airport.
OR
b) At least TWO (2) valid meet and assist contracts / licenses/ agreements signed between the bidder or its subsidiary company with an international airport showing a minimum 5 years' experience in providing meet and assist services
ii. Recommendation letters from at least THREE (3) meet and assist corporate clients addressed to the MD/CEO KAA and specific to this tender. (25 marks).
43. According to him,this criterion was further clarified under Addendum No.1 issued to all bidders and which distributed the weightage as follows: 50 and 30 marks for items (i) and (ii) of the Experience category respectively, 10 marks for the Business Plan category and 10 marks for the Personnel category, totaling 100 marks.
44. The ex-parte Applicant did not submit recommendation letters from at least three (3) meet and assist corporate clients as required under item (ii) above and was therefore unsuccessful for failing to meet the technical evaluation criteria and the ex-parte Applicant was thus issued with a regret letter dated 30th May 2024.
45. The ex-parte Applicant was dissatisfied with the decision of the Authority and on 11th June 2024 filed a Request for Review dated 5th June 2024 before the 1st Respondent.
46. According to the ex-parte Applicant, item(i) and (ii) under were alternatives and therefore, the ex-parte Applicant had satisfied the requirements under the Experience category notwithstanding its failure to provide recommendation letters as required.
47. In its decision dated 2nd July 2024, the 1st Respondent, upon considering the pleadings, documents and oral submissions by the parties, found inter alia that the criteria under clause (ii) of the Experience category was distinct and independent of the criteria under clause (i) thereof.
48. The ex-parte Applicant's tender failed to satisfy the requirement on provision of recommendation letters from at least 3 meet and assist clients so as to proceed for further evaluation.
49. Accordingly, the 1st Respondent held that the Authority's Tender Evaluation Committee properly evaluated the ex-parte Applicant's tender and disqualified in keep on ng with Section 80(2)of the Public Procurement and Disposal Act and Article 227(1) of the Constitution.
50. It is evident that the ex-parte Applicant's bid was disqualified based on a fair, equitable and transparent evaluation process and that the ruling was not tainted with any of the grounds for judicial review and was fair, rational, reasonable, procedural, and lawful.
1st Interested Party's Case:
51. In opposition to the application, the 1st interested party relies on the affidavit of Willis Otieno Ocholla, the Managing Director of the 2nd Interested Party.
52. According to him, the application lacks merit for the following reasons:
a) The Applicant has not proved illegality, irrationality and procedural impropriety by any of the 1st Respondent;
b) The Application does not indicate how the 1st Respondent acted ultra-vires or exceeded its jurisdiction; and
c) The Application does not indicate if the 1st Respondent acted unreasonably or illegally.
53. The Applicant and the Interested Parties participated in tender KAA/RT/MBD/0207/2023-2024 for meet and assist at Jomo Kenyatta International Airport (JKIA) which was restricted tender published on 28th March 2024.
54. The 2nd Respondent issued a number of Addendums interalia. One of the grading structure issued as Addendum number 1, it clearly stated that roman (i) and (ii) will have separate marks.
55. The bidders were to demonstrate that they were providing the meet and assist services at an international Airport and this was through:
i. Documentary evidence such as;
a) At-least FIVE (5) valid meet and assist airport passes for its own personnel for operations at Jomo Kenyatta International Airport.
OR
b) At least TWO (2) valid meet and assist contracts/licences/agreements signed between the bidder or its subsidiary company with an international airport showing a minimum 5 years' experience in providing meet and assist services.
ii. Recommendation letters from at least THREE (3) meet and assist corporate clients addressed to the MD/CEO KAA and specific to this tender
56. From the express wording of the requirements and the grading which was explained at Addendum 1 the requirements in roman (i) and (ii) are different and were to be met separately and to be graded separately and to be specific roman (i) had 50 marks and roman (ii) 30 marks;
57. The Applicant has admitted that it did not meet the condition in roman (ii) meaning that its bid was unresponsive.
The 2nd Interested Parties Case;
58. The 2nd interested party opposes the application through the replying affidavit of Cagdas Ozey.
59. It is their case that the exparte applicant’s application invites this court to delve into the merits and demerits of its review application which issues were addressed by the Board in its decision and the application is worded as an appeal to the decision disguised as a judicial review application.
60. The hearing of the exparte applicants review application was conducted in accordance with the rules of natural justice and procedural fairness and it is clear that the exparte applicant’s application and submissions were duly considered and no impropriety has been demonstrated on the part of the 1st respondent.
61. The application does not meet the threshold for granting of an order of certiorari as sought and having failed to meet the threshold for granting of orders of Certiorari, it follows that an order of prohibition cannot be granted.
62. Without prejudice and generality to the foregoing it is argued that,
A. The gravamen exparte applicant’s application is Clause 1 of Part II: Evaluation of the Tenderer’s Technical Requirements appearing on page 22 and 23 of the tender document.
B. That Part II 1, (i) required
a. At least Five (5) meet and assist passes for its own personnel for operations at Jomo Kenyatta International Airport
OR
b. At least two (2) valid meet and assist contracts/ licenses / agreements signed between the bidder of its subsidiary company with an international airport showing a minimum of 5 years’ experience providing meet and assist services.
63. The weightage under this part pursuant to addendum 1 was specifically stated as 50 marks and was clearly meant to distinguish it from PART II 1, (ii) requiring “Recommendation letters from at least THREE (3) meet and assist corporate clients addressed to the MD/CEO KAA specific to this tender”; this part carried 30 marks.
64. There was no ambiguity between the 2 clauses referred to in B above and the conjunction “OR” appearing between Part II 1, (a) and 1(b) clearly means that (a) is an alternative to b;
65. Clause 1(ii) following thereafter is distinct in numbering, construction and weightage in terms of marks.
66. The exparte applicant admittedly did not comply with PART II 1, (ii) and failed to meet the mandatory requirements required of bidders under the said part.
Analysis and determination:
The issue for determination is whether the Applicant is entitled to the prayers sought or not.
67. Judicial review is now entrenched as a constitutional principle pursuant to the provisions of Article 47 of the Constitution, which provides for the right to fair administrative action.
68. Section 7 of the Fair Administrative Action Act in this regard provides that any person who is aggrieved by an administrative action or decision may apply for review of the administrative action or decision.
69. The tender had an evaluation criterion, that called upon the bidders to demonstrate that they had experience in providing meet and assist services at an international airport. This requirement was to be demonstrated through the following:
iii. Documentary evidence such as copies of (45 marks)
c) At least FIVE (5) valid meet and assist airport passes for its own personnel for operations at Jomo Kenyatta International Airport.
OR
d) At least TWO (2) valid meet and assist contracts/ licenses/ agreements signed between the bidder or its subsidiary company with an international airport showing a minimum 5 years' experience in providing meet and assist services
iv. Recommendation letters from at least THREE (3) meet and assist corporate clients addressed to the MD/CEO KAA and specific to this tender. (25 marks
70. This criteria was further clarified under Addendum No.1 issued to all bidders and which distributed the weightage as follows: 50 and 30 marks for items (i) and (ii) of the Experience category respectively, 10 marks for the Business Plan category and 10 marks for the Personnel category, totaling 100 marks.
71. This court is in agreement with the finding in the case of Republic vs Public Procurement Administrative Review Board & 2Others Ex-Parte Higawe Enterprises Limited (2017) eKLR, the Court cited with approval the case of Republic vs Public Procurement and Administrative Review Board & Others Ex-Parte Olive Telecommunications POP Limited (2014) eKLR which the Court stated:
“we are of the view that in order to achieve a transparent system of procurement as required under Article 227 of the Constitution, it is important that procuring entities should set out to achieve a certain measure of precision in their language intender documents and not leave important matters for speculation and conjecture as was the case in this matter".
72. The conditions were not flawed and marred with such design as would render them illegal and or unachievable as to lead into a violation of Article 227 of the Constitution as to warrant the intervention of this court.
73. Given that the applicant believes that the criteria in issue was flawed then the applicant should have challenged the decision through an appeal where the court of appeal would have determined whether the 1st Respondent exercised its decision legally in arriving at the impugned decision.
74. In the case of Pastoli vs Kabale DistrictLocal Government Council & Others, (2008) 2 EA 300, that:
“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).”
75. It is this court’s finding that the 1st Respondent did not breach any law nor act in contravention of the criteria as set out in the tender documents.
76. The Applicant has also sought orders of prohibition.
In Republic v Principal Kadhi, Mombasa Ex-parties Alibhai Adamali Dar & 2 others; Murtaza Turabali Patel (Interested Party) [20221 eKLR, the Court rendered itself thus:
“The Order of "Prohibition" issues where there are assumptions of unlawful jurisdiction or excess of jurisdiction. It's an order from the High Court directed to an inferior tribunal or body as in this case the Kadhi’s Court. Its functions is to prohibit and/or forbids encroachment into jurisdiction and further to prevent the implementation of orders issued when there is lack of jurisdiction."
"Although prohibition was originally used to prevent tribunals from meddling with cases over which they had no jurisdiction, it was equally effective and equally often used, to prohibit the execution of some decision already taken but ultra vires. So long as the tribunal or administrative authority still had power to exercise as a consequence of the wrongful decision, the exercise of that power could be restrained by prohibition. Certiorari and prohibition frequently go hand in hand, as where certiorari is sought to quash the decision and prohibition to restrain its execution. But either remedy may be sought by itself."
77. It is my finding and I so hold that the issuance of prohibition orders as sought will serve no useful purpose given that this court has already made a finding that the Applicant did not prove that it is entitled to the orders of Certiorari.
78. The Applicant has failed to meet the standards as enunciated in the case of Pastoli vs Kabale DistrictLocal Government Council & Others, (2008) 2 EA 300 and I so hold.
Disposition:
79. The Ex Parte Applicant has failed to demonstrate any elements of illegality, irrationality, procedural impropriety and/or unfairness in the manner in which the 1st Respondent arrived at its decision in Request for Review No. 53 of 2024.
Order;
The application dated 5 th July 2024 is dismissed with costs.
1. On 28th March 2024 the 2nd Respondent invited the ex-parte Applicant and other named parties through restricted tendering method to submit bids in Tender No. KAA/RT/MBD/0207/2023-2024 for provision of Meet and Assist services at the Jomo Kenyatta International Airport (JKIA).
2. The tender had an evaluation criterion, that called upon the bidders to demonstrate that they had experience in providing meet and assist services at an international airport.
3. This requirement was to be demonstrated through the following:
i. Documentary evidence such as copies of (45 marks)
a) At least FIVE (5) valid meet and assist airport passes for its own personnel for operations at Jomo Kenyatta International Airport.
OR
b) At least TWO (2) valid meet and assist contracts/ licenses/ agreements signed between the bidder or its subsidiary company with an international airport showing a minimum 5 years' experience in providing meet and assist services
ii. Recommendation letters from at least THREE (3) meet and assist corporate clients addressed to the MD/CEO KAA and specific to this tender. (25 marks
4. This criteria was further clarified under Addendum No.1 issued to all bidders and which distributed the weightage as follows: 50 and 30 marks for items (i) and (ii) of the Experience category respectively, 10 marks for the Business Plan category and 10 marks for the Personnel category, totaling 100 marks.
5. The Ex-parte Applicant’s was thereafter issued with a regret letter dated 30 th May 2024.
6. Being dissatisfied with this, the ex-parte Applicant filed a Request for Review dated 5th June 2024 before the 1st Respondent herein on the basis that the Authority relied on a wrong interpretation of the experience requirements under the tender document to disqualify the ex-parte Applicant.
7. The Request for Review proceeded for a virtual hearing that culminated in a decision dated 2nd July 2024 wherein the 1st Respondent, dismissed the Request for Review.
The Applicant’s Case;
8. The Applicant is dissatisfied with the decision dated 2nd July 2024 and it has filed the application dated 5th July 2024 wherein the applicant seeks;
Orders:
1) THAT an order of certiorari be and is hereby granted to remove into this Honourable Court and quash the decision, finding and orders of the Public Procurement Administrative Review Board Tribunal, the 1st Respondent, made and or issued on 2nd July, 2024 and allow the Applicant's request for review dated 5th June, 2024 be and is hereby allowed.
2) THAT an order of prohibition be and is hereby granted restraining the 2nd Respondent from entering into any contracts, executing any contracts with any winning bidders namely Willis Protocol and Concierge Services Limited and TAV Africa Operations Limited JV TAV Isletme Hizmetleti, the 1st and 2nd Interested Parties respectively, with respect to Tender Number KAA/RT/MBD/0207/2023-2024 for provision of meet and assist services at Jomo Kenyatta International Airport.
3) THAT costs of this substantive be borne by the 2nd Respondent.
9. The application is supported by the Verifying Affidavit of Henry Lasoi on 6th June, 2024, the Statutory Statement dated 4th July, 2024, the Verifying Affidavit sworn by Henry Lasoi.
10. It is its case that in the decision delivered by the 1st Respondent on 2nd July, 2024, it held and found that the tender was evaluated in accordance with Section 80 (2) of the Act as read together with Article 227 (1) of the Constitution with regard to Clause 1 (ii) if Part II of the Tender document. The 1st Respondent proceeded to dismiss the Request for Review and further directed that the procurement process proceeds to its logical and lawful conclusion.
11. It is further it’s case that the issues of contention in the Request for Review and now subject of the suit herein are as follows:
i. Whether the requirement to submit recommendation letters from at least three meet and assist corporate clients addressed to the MD/CEO KAA was mandatory.
ii. Whether the evaluation team of the 2nd Respondent wrongfully evaluated the Applicant's submission or bid.
12. The 1st Respondent set out two (2) issues for determination and held as follows:
i. At Paragraph 76 cited Oxford Dictionary meaning of the word "or' as disjunctive in that it is used to introduce another possibility.
ii. It held at Paragraph 78 as follows:
“In our considered view the requirement for at least two (2)valid meet and assist contracts/license/agreements signed between the bidder, its subsidiary company with an international airport showing a minimum 5 years' experience in providing meet and assist services was provide as another possible way for a bidder to demonstrate its documentary evidence other than having the five (5) valid meet and assist airport passes for its own personnel for operations at Jomo Kenyatta International Airport and a bidder who meets this criteria would be scored 50 marks as seen from Addendum 1 which clearly set out that the experience under Clause 1 (i) would score 30 marks. As such, the criteria under Clause 1 (11) for 'recommendation letters from at least three (3) meet and assist corporate clients addressed to the MD/CEO KAA and specific to the subject tender was distinct and independent of the criteria mentioned above Clause 1 (i) of the tender document'. The above evaluation criteria were therefore not ambiguous as alleged by the Applicant and had only one interpretation."
13. It is the Applicant’s case that, if you consider the explanation given by the Oxford Dictionary on the meaning of “OR”, it clearly states it is sued to introduce another possibility. It is also indicated that the word “or” is used in negative sentences when mandatory two or more things and it proceeds to cite examples like, "He can't read or write". At explanation 7 it is also stated that the word “or “is used" to introduce a different or opposite idea".
14. Under explanation one, the Dictionary cites an example and we quote, "In a list or is usually before the last item; it can be black, white or grey".
15. Part 11 under Title, "Evaluation of Tenderer's Technical Requirements" states as follows under second column;
"Firms must demonstrate they have been providing meet and assist services at an International Airport. This shall be demonstrated by the following:
i. Documentary evidence such as copies of: (45 marks)
a) At least five (5) valid meet and assist airport passes for its own personnel for operations at Jomo Kenyatta International Airport.
OR
b) At least two (2) valid meet and assist contracts/licenses/agreements signed between the bidder or its subsidiary company with an International Airport showing a minimum of 5 years' experience in providing meet and assist services.
ii. Recommendation letters from at least three (3) meet and assist corporate clients addressed to the MD/CEO/KAA and specific to this tender (25 marks)."
16. Whereas the 1st Respondent rightfully finds that the word "OR" is used to introduce another possibility, it however erred when it failed to acknowledge that on the face of the said contested provision of the tender document the word 'OR" is introduced in capital letter immediately after Clause (i) (a) and thereafter (b) and (ii) are thereafter introduced. Clearly by inserting the word "OR" in capital letters the 2nd Respondent in its plain reading of the document indeed that the requirements mentioned thereafter are an option to (i) (a). The question that the 1st Respondent failed to weigh their minds or is why the word "OR" is on its own Paragraph and not inserted immediately following the word “Airport".
17. By failing to apply its mind on the said issue, the 1st Respondent arrived at erroneous conclusion and finding. The 1st Respondent therefore failed to exercise its powers that required them to ensure that a tender document is prepared in a manner that would not be interpreted different by the Evaluation team of the 2nd Respondent.
18. It is the Applicant's contention therefore that the 2nd Respondent's evaluation committee abused its powers where it deemed the Applicant's tender as non-responsive based on a requirement which the tender document on its face clearly indicated it was an alternative requirement.
19. Reliance is placed in the book of “Interpretation of Contracts by Sweet & Maxwell, 5th Edition", they have defined the meaning of ambiguity to mean, “a statement may be said to be ambiguous when it has two (or none) primary meanings each of which may be adopted within the distortion of the language" and it cites the case of Burns Philliph Hardware Limited vs Howard China Pty Ltd which defined ambiguity as:
“two or more plausible meanings when the context of the document is taken into account in the light of any knowledge any ordinary intelligent reader of the document would bring to the meaning of it”. We have attached the write up to these Submissions.
20. The Applicant submits therefore that the tender document introduced the requirement to submit recommendation letters from at least three (3) meet and assist corporate clients as another possibility to the requirement that a bidder submits at least five (5) valid meet and assist airport passes for its own personnel for operations at Jomo Kenyatta International Airport.
21. It argues that if indeed Clause (ii) aforesaid was mandatory, the question that would arise is why the 2nd Respondent would under (i) (a) require five (5) meet and assist airport passes for a bidder's personnel for operations at Jomo Kenyatta International Airport and not also stipulate an alternative similar meet and passes at an International Airport since it was acknowledged that it is only the Applicant who had been offering meet and assist services at JKIA and therefore none of the Interested Parties would have met the criteria under (i) (a).
22. Had the 1st Respondent properly evaluated its mind on the said requirement, it would have held that the requirements were set out to disadvantage the Applicant and favour the Interested Parties.
23. This being a judicial review suit, the Honourable Court would consider whether the 1st Respondent properly applied its mind in the request for review filed by the Applicant and whether its decision is in accordance with the law.
24. It argues that the evaluation team of the 2nd Respondent proceeded to ascribe a different meaning to the contested requirements of the tender document.
25. Reliance is placed in the case of Republic vs Public Procurement Administrative Review Board & 2 Others Ex-Parte Higawe Enterprises Limited (2017) eKLR, the Court coated with approval the case of Republic vs Public Procurement and Administrative Review Board & Others Ex-Parte Olive Telecommunications POP Limited (2014) eKLR which the Court stated:
“we are of the view that in order to achieve a transparent system of procurement as required under Article 227 of the Constitution, it is important that procuring entities should set out to achieve a certain measure of precision in their language intender documents and not leave important matters for speculation and conjecture as was the case in this matter”
26. The Applicant is persuaded that this is the exact situation in the tender subject of the Judicial Review proceedings herein.
1st Respondent’s Case
27. The 1st Respondent opposes the application through the Affidavit of James Kilaka.
28. According to him, the application is an appeal against the 1st Respondent’s Decision dated 2nd July 2024 with respect to the findings of the 1st Respondent on the merits of the Request for Review No. 53 of 2024 and is being disguised as a judicial review application and this Court lacks jurisdiction to hear and determine an appeal against the 1sRespondent’s decision dated 2nd July 2024.
29. On 11th June 2024, the Ex Parte Applicant herein filed a Request for Review Application No. 53 of 2024 dated 5th June 2024 before the 1st Respondent.
In its findings the 1st Respondent decided that The Request for Review dated 5th June 2024 and filed on 11th June 2024 be and is hereby dismissed for lacking in merit.
30. In determining whether the 2nd Respondent’s Evaluation Committee evaluated the Applicant’s tender with regard to Clause 1 of Part II: Evaluation of Tenderer’s Technical Requirements at page 22 to 23 of the Tender Document in accordance with the provisions of the Tender Document as read with provisions of the Constitution, the Act and Regulations 2020, the 1st Respondent noted that the bone of contention was on the interpretation of the provisions of Clause 1 of Part II: Evaluation of Tenderer’s Technical Requirements at page 22 to 23 of the Tender Document and if the same was ambiguous as alleged by the Ex parte Applicant.
31. The 1st Respondent at paragraphs 73 to 79 of its Decision dated 2nd July 2024 took note of the evaluation criteria set out under Clause 1 of Part II: Evaluation of Tenderer’s Technical Requirements at page 22 to 23 of the Tender Document and clarifications made by the Procuring Entity in Addendum 1 dated 5th April 2024, observed the meaning of the words ‘or’ and ‘ambiguous’ and proceeded to issue an interpretation of the fore mentioned evaluation criteria to mean that; ‘it was a mandatory requirement for a bidder to demonstrate that it had been providing meet and assist services at an international airport which would be evidenced by (a) documentary evidence such as copies of at least five (5) valid meet and assist airport passes for its own personnel for operations at Jomo Kenyatta International Airport or at least two (2) valid meet and assist contracts/licenses/agreements signed between the bidder or its subsidiary company with an international airport showing a minimum 5 years’ experience in providing meet and assist services, and (b) Recommendation letters from at least three (3) meet and assist corporate clients addressed to the MD/CEO KAA and specific to the subject tender.’
32. The 1st Respondent at paragraph 78 of its decision further expounded on the aforementioned evaluation criteria and found the same to have only one interpretation and not being ambiguous as alleged by the Ex parte Applicant.
33. The 1st Respondent found that it was not in dispute that the Ex parte Applicant had not submitted the recommendation letters from at least three (3) meet and assist corporate clients addressed to the MD/CEO KAA and specific to the subject tender rendering its tender non-responsive to the evaluation criteria under Clause 1(ii) of Part II: Evaluation of Tenderer’s Technical Requirements at page 22 to 23 of the Tender Document.
34. The 1st Respondent rightfully found that the Ex parte Applicant’s tender was non-responsive in line with the provisions of the Tender Document, the Constitution, the Act and Regulations 2020, the Fair Administrative Actions Act and the rule of law in its findings in Request for Review No. 53 of 2024.
35. The 1st Respondent’s findings in Request for Review No. 53 of 2024 took into account provisions of Article 227 of the Constitution, the Act and Regulation 2020 and as such the Decision dated 2nd July 2024 was well reasoned and was neither ultra vires, unlawful, irrational, nor in violation of the Ex parte Applicant’s Legitimate Expectations.
36. The 1st Respondent’s Decision dated 2nd July 2024 in Request for Review No. 53 of 2024 was not tainted with any of the grounds for judicial review and is fair, reasonable, rational and lawful without overreaching the 1st Respondent’s mandate and jurisdiction.
37. It is its case that the 1st Respondent observed the rules of natural justice in the exercise of its statutory mandate and powers under Section 28 and Section 173 of the Act respectively and ensured that all parties to the Request for Review No. 53 of 2024 were granted an opportunity to be heard on all issues that emerged from parties pleadings, cases, and confidential documents submitted pursuant to section 67 of the Act through their oral and written submissions and by considering and interrogating all the documentation and information before it that was material to Request for Review No. 53 of 2024 before determining the said application.
38. It is its case that should the application succeed then this Court should remit the Request for Review Application No. 53 of 2024 for re-hearing by the Respondent.
2nd Respondent's Case:
39. The second Respondent opposes the application through the affidavit of Vincent Korir, the General Manager Procurement and Logistics.
40. On 28th March 2024 it invited the ex-parte Applicant and other named parties through restricted tendering method to submit bids in Tender No.KAA/RT/MBD/0207/2023-2024 for provision of Meet and Assist services at the Jomo Kenyatta International Airport (JKIA).
41. As part of the tender evaluation criteria, the bidders were required to demonstrate that they had experience in providing meet and assist services at an international airport.
42. This requirement was to be demonstrated through the following:
i. Documentary evidence such as copies of (45 marks)
a. At least FIVE (5) valid meet and assist airport passes for its own personnel for operations at Jomo Kenyatta International Airport.
OR
b) At least TWO (2) valid meet and assist contracts / licenses/ agreements signed between the bidder or its subsidiary company with an international airport showing a minimum 5 years' experience in providing meet and assist services
ii. Recommendation letters from at least THREE (3) meet and assist corporate clients addressed to the MD/CEO KAA and specific to this tender. (25 marks).
43. According to him,this criterion was further clarified under Addendum No.1 issued to all bidders and which distributed the weightage as follows: 50 and 30 marks for items (i) and (ii) of the Experience category respectively, 10 marks for the Business Plan category and 10 marks for the Personnel category, totaling 100 marks.
44. The ex-parte Applicant did not submit recommendation letters from at least three (3) meet and assist corporate clients as required under item (ii) above and was therefore unsuccessful for failing to meet the technical evaluation criteria and the ex-parte Applicant was thus issued with a regret letter dated 30th May 2024.
45. The ex-parte Applicant was dissatisfied with the decision of the Authority and on 11th June 2024 filed a Request for Review dated 5th June 2024 before the 1st Respondent.
46. According to the ex-parte Applicant, item(i) and (ii) under were alternatives and therefore, the ex-parte Applicant had satisfied the requirements under the Experience category notwithstanding its failure to provide recommendation letters as required.
47. In its decision dated 2nd July 2024, the 1st Respondent, upon considering the pleadings, documents and oral submissions by the parties, found inter alia that the criteria under clause (ii) of the Experience category was distinct and independent of the criteria under clause (i) thereof.
48. The ex-parte Applicant's tender failed to satisfy the requirement on provision of recommendation letters from at least 3 meet and assist clients so as to proceed for further evaluation.
49. Accordingly, the 1st Respondent held that the Authority's Tender Evaluation Committee properly evaluated the ex-parte Applicant's tender and disqualified in keep on ng with Section 80(2)of the Public Procurement and Disposal Act and Article 227(1) of the Constitution.
50. It is evident that the ex-parte Applicant's bid was disqualified based on a fair, equitable and transparent evaluation process and that the ruling was not tainted with any of the grounds for judicial review and was fair, rational, reasonable, procedural, and lawful.
1st Interested Party's Case:
51. In opposition to the application, the 1st interested party relies on the affidavit of Willis Otieno Ocholla, the Managing Director of the 2nd Interested Party.
52. According to him, the application lacks merit for the following reasons:
a) The Applicant has not proved illegality, irrationality and procedural impropriety by any of the 1st Respondent;
b) The Application does not indicate how the 1st Respondent acted ultra-vires or exceeded its jurisdiction; and
c) The Application does not indicate if the 1st Respondent acted unreasonably or illegally.
53. The Applicant and the Interested Parties participated in tender KAA/RT/MBD/0207/2023-2024 for meet and assist at Jomo Kenyatta International Airport (JKIA) which was restricted tender published on 28th March 2024.
54. The 2nd Respondent issued a number of Addendums interalia. One of the grading structure issued as Addendum number 1, it clearly stated that roman (i) and (ii) will have separate marks.
55. The bidders were to demonstrate that they were providing the meet and assist services at an international Airport and this was through:
i. Documentary evidence such as;
a) At-least FIVE (5) valid meet and assist airport passes for its own personnel for operations at Jomo Kenyatta International Airport.
OR
b) At least TWO (2) valid meet and assist contracts/licences/agreements signed between the bidder or its subsidiary company with an international airport showing a minimum 5 years' experience in providing meet and assist services.
ii. Recommendation letters from at least THREE (3) meet and assist corporate clients addressed to the MD/CEO KAA and specific to this tender
56. From the express wording of the requirements and the grading which was explained at Addendum 1 the requirements in roman (i) and (ii) are different and were to be met separately and to be graded separately and to be specific roman (i) had 50 marks and roman (ii) 30 marks;
57. The Applicant has admitted that it did not meet the condition in roman (ii) meaning that its bid was unresponsive.
The 2nd Interested Parties Case;
58. The 2nd interested party opposes the application through the replying affidavit of Cagdas Ozey.
59. It is their case that the exparte applicant’s application invites this court to delve into the merits and demerits of its review application which issues were addressed by the Board in its decision and the application is worded as an appeal to the decision disguised as a judicial review application.
60. The hearing of the exparte applicants review application was conducted in accordance with the rules of natural justice and procedural fairness and it is clear that the exparte applicant’s application and submissions were duly considered and no impropriety has been demonstrated on the part of the 1st respondent.
61. The application does not meet the threshold for granting of an order of certiorari as sought and having failed to meet the threshold for granting of orders of Certiorari, it follows that an order of prohibition cannot be granted.
62. Without prejudice and generality to the foregoing it is argued that,
A. The gravamen exparte applicant’s application is Clause 1 of Part II: Evaluation of the Tenderer’s Technical Requirements appearing on page 22 and 23 of the tender document.
B. That Part II 1, (i) required
a. At least Five (5) meet and assist passes for its own personnel for operations at Jomo Kenyatta International Airport
OR
b. At least two (2) valid meet and assist contracts/ licenses / agreements signed between the bidder of its subsidiary company with an international airport showing a minimum of 5 years’ experience providing meet and assist services.
63. The weightage under this part pursuant to addendum 1 was specifically stated as 50 marks and was clearly meant to distinguish it from PART II 1, (ii) requiring “Recommendation letters from at least THREE (3) meet and assist corporate clients addressed to the MD/CEO KAA specific to this tender”; this part carried 30 marks.
64. There was no ambiguity between the 2 clauses referred to in B above and the conjunction “OR” appearing between Part II 1, (a) and 1(b) clearly means that (a) is an alternative to b;
65. Clause 1(ii) following thereafter is distinct in numbering, construction and weightage in terms of marks.
66. The exparte applicant admittedly did not comply with PART II 1, (ii) and failed to meet the mandatory requirements required of bidders under the said part.
Analysis and determination:
The issue for determination is whether the Applicant is entitled to the prayers sought or not.
67. Judicial review is now entrenched as a constitutional principle pursuant to the provisions of Article 47 of the Constitution, which provides for the right to fair administrative action.
68. Section 7 of the Fair Administrative Action Act in this regard provides that any person who is aggrieved by an administrative action or decision may apply for review of the administrative action or decision.
69. The tender had an evaluation criterion, that called upon the bidders to demonstrate that they had experience in providing meet and assist services at an international airport. This requirement was to be demonstrated through the following:
iii. Documentary evidence such as copies of (45 marks)
c) At least FIVE (5) valid meet and assist airport passes for its own personnel for operations at Jomo Kenyatta International Airport.
OR
d) At least TWO (2) valid meet and assist contracts/ licenses/ agreements signed between the bidder or its subsidiary company with an international airport showing a minimum 5 years' experience in providing meet and assist services
iv. Recommendation letters from at least THREE (3) meet and assist corporate clients addressed to the MD/CEO KAA and specific to this tender. (25 marks
70. This criteria was further clarified under Addendum No.1 issued to all bidders and which distributed the weightage as follows: 50 and 30 marks for items (i) and (ii) of the Experience category respectively, 10 marks for the Business Plan category and 10 marks for the Personnel category, totaling 100 marks.
71. This court is in agreement with the finding in the case of Republic vs Public Procurement Administrative Review Board & 2Others Ex-Parte Higawe Enterprises Limited (2017) eKLR, the Court cited with approval the case of Republic vs Public Procurement and Administrative Review Board & Others Ex-Parte Olive Telecommunications POP Limited (2014) eKLR which the Court stated:
“we are of the view that in order to achieve a transparent system of procurement as required under Article 227 of the Constitution, it is important that procuring entities should set out to achieve a certain measure of precision in their language intender documents and not leave important matters for speculation and conjecture as was the case in this matter".
72. The conditions were not flawed and marred with such design as would render them illegal and or unachievable as to lead into a violation of Article 227 of the Constitution as to warrant the intervention of this court.
73. Given that the applicant believes that the criteria in issue was flawed then the applicant should have challenged the decision through an appeal where the court of appeal would have determined whether the 1st Respondent exercised its decision legally in arriving at the impugned decision.
74. In the case of Pastoli vs Kabale DistrictLocal Government Council & Others, (2008) 2 EA 300, that:
“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).”
75. It is this court’s finding that the 1st Respondent did not breach any law nor act in contravention of the criteria as set out in the tender documents.
76. The Applicant has also sought orders of prohibition.
In Republic v Principal Kadhi, Mombasa Ex-parties Alibhai Adamali Dar & 2 others; Murtaza Turabali Patel (Interested Party) [20221 eKLR, the Court rendered itself thus:
“The Order of "Prohibition" issues where there are assumptions of unlawful jurisdiction or excess of jurisdiction. It's an order from the High Court directed to an inferior tribunal or body as in this case the Kadhi’s Court. Its functions is to prohibit and/or forbids encroachment into jurisdiction and further to prevent the implementation of orders issued when there is lack of jurisdiction."
"Although prohibition was originally used to prevent tribunals from meddling with cases over which they had no jurisdiction, it was equally effective and equally often used, to prohibit the execution of some decision already taken but ultra vires. So long as the tribunal or administrative authority still had power to exercise as a consequence of the wrongful decision, the exercise of that power could be restrained by prohibition. Certiorari and prohibition frequently go hand in hand, as where certiorari is sought to quash the decision and prohibition to restrain its execution. But either remedy may be sought by itself."
77. It is my finding and I so hold that the issuance of prohibition orders as sought will serve no useful purpose given that this court has already made a finding that the Applicant did not prove that it is entitled to the orders of Certiorari.
78. The Applicant has failed to meet the standards as enunciated in the case of Pastoli vs Kabale DistrictLocal Government Council & Others, (2008) 2 EA 300 and I so hold.
Disposition:
79. The Ex Parte Applicant has failed to demonstrate any elements of illegality, irrationality, procedural impropriety and/or unfairness in the manner in which the 1st Respondent arrived at its decision in Request for Review No. 53 of 2024.
Order;
The application dated 5 th July 2024 is dismissed with costs.