Urth Caffe Limited VS PUBLIC PROCUREMENT ADMINISTRATIVE REVIEW BOARD AND Kenya National Examination Council AND 2 Others

Brief Background
1.    On 21st August 2024, judicial review application in HCJRMISC/E097/2024 was consolidated with HCJRMISC/E096/2024 by consent of the parties.
2.    KNEC advertised tender number KNEC/ONT/2023-2024/07 for provision of catering and event set up services.
3.    Thereafter on 27th May 2024, the Accounting Officer of KNEC awarded the subject tender to the Ex Parte Applicant herein and equally notified other tenderers on reasons for disqualification of their respective tenders.
4.    Royal Taste Kitchen Limited herein after referred to as RTKL challenged the disqualification of its bid through review application No. 46 of 2024 dated 31st May 2024.
5.    The Public Procurement Administrative Review Board - PPARB then delivered its decision on 21st July 2024, wherein it inter alia, annulled the notifications to bidders dated 27th May 2024 and directed that the Ex Parte Applicant’s bid and RTKL’s bid be admitted to re-evaluation at the financial evaluation stage and to complete the exercise within fourteen days from 21st June 2024.
6.    The procuring entity upon re-evaluation notified the Ex Parte Applicant on 5th July 2024 that its bid was successful.
7.    Royal Taste Kitchen Limited  challenged the disqualification of its bid again through review application No. 65 of 2024 dated 11th July 2024.
8.    The PPARB in its decision delivered on 2nd August 2024, inter alia, annulled the notifications to bidders dated 5th July 2024 and ordered the Accounting Officer to issue RTKL with a notification of award within 5 days from 2nd August 2024.
9.    Aggrieved by this decision and The Ex Parte Applicant has filed the Application dated 9th August 2024 seeking the following:
1)    An Order of Certiorari removing to this Honourable Court for purposes of being quashed the entire decision of the Public Procurement Administrative Review Board dated 2nd August 2024 in Request for Review Application No. 65 of 2024: ROYAL TASTE KITCHEN LIMITED =VERSUS= ACCOUNTING OFFICER, KENYA NATIONAL EXAMINATIONS COUNCIL, KENYA NATIONAL EXAMINATIONS COUNCIL & URTH CAFFE LIMITED arising from the tender number KNEC/ONT/2023-2024/07 FOR PROVISION OF CATERING AND EVENT SET UP SERVICES.
2)    An Order of Prohibition prohibiting the Accounting Officer of Kenya National Examinations Council from awarding ROYAL TASTE KITCHEN LIMITED and/or executing a procurement contract with ROYAL TASTE KITCHEN LIMITED in respect to the tender number KNEC/ONT/2023-2024/07 FOR PROVISION OF CATERING AND EVENT SET UP SERVICES.
3)    An Order of Mandamus compelling the Accounting Officer of Kenya National Examinations Council to execute a procurement contract with URTH CAFFE LIMITED as the successful bidder pursuant to the notification of award dated 5th July 2024.
4)    Any other appropriate relief which the Honourable Court deems fit and just in the circumstances.
5)    The costs of this application be in favour of the Ex Parte Applicant.
10.    The Application is supported by the Statutory Statement dated 6th  August 2024, the verifying Affidavit of Philomena Karanja sworn on even date and the annexures thereto.
11.    The Application is opposed by the 1st Respondent through the Replying Affidavit of James Kilaka filed on 16th August 2024.
12.    The Application is also opposed by Royal Taste Kitchen Limited (hereinafter “RTKL”) through the Replying Affidavit of Emily Kerubo Kamau sworn on 15th August 2024.
13.    By consent of the parties during the mention of the matter on 21st  of August 2024, the Honourable Court consolidated HCJR MISC No. E097 of 2024 and this suit making the instant suit the lead file.
The Ex parte Applicant’s case:
14.    The applicant is strongly persuaded that the decision dated 2nd  August 2024 manifestly suffers the infirmities of procedural unfairness, illegality, gross errors of law, irrationality, unreasonableness, and violation of the Applicant’ legitimate expectations.
15.    The applicant argues that the 1st respondent served upon its advocates on 19th August 2024 a defective Replying Affidavit  and that it is fatally incompetent as it offends the provisions of section 5 of the Oaths and Statutory Declarations Act in  that it only bears a stamp impression of a purported Judith Akuku Opili and was not duly signed by a Commissioner for Oaths.
16.    Reliance is placed in the Supreme Court of Kenya in the case of Gideon Sitelu Konchellah v Julius Lekakeny Ole Sunkuli & 2 others [2018] eKLR held as follows:
“We have no hesitation in finding that the purported Replying Affidavit filed by the 1st Respondent is fatally defective as the same contravenes all the legal requirements for the making of an affidavit. Hence it has no legal value in the matter before us. …...Consequently, as the same is defective, it is deemed that there is no Replying Affidavit on record filed by the 1st Respondent”.
17.    It is its case that RTKL’s tender was disqualified under Section 55(5) of the Public Procurement and Asset Disposal Act following the due diligence exercise conducted by the procuring entity pursuant to section 83 of the PPAD Act and regulation 83 of the PPAD Regulations during which the procuring entity established that RTKL submitted false, inaccurate and incomplete audited accounts which were falsely purported to have been audited by the firm of Wamutu & Associates.
18.    The Ex Parte Applicant learned during the proceedings in review application no. 65 of 2024 that the falsity of the audited accounts submitted by RTKL was established by the procuring entity during due diligence upon request for confidential reference from CPA John Wamutu Wachira in accordance with section 83(2) of the Public Procurement and Asset Disposal Act.
19.    In the confidential reference dated 3rd July 2024 and issued by CPA John Wamutu Wachira (the proprietor of Wamutu & Associates) to the procuring entity, he stated as follows:
1)    We are not the auditors of Royal Taste Kitchen.
2)    The stated postal address being P.O. Box 50183-00200, Nairobi, differed from our official address which is P.O. Box 30686-00100.
3)    The attached copy of accounts was not signed by us.
4)    The customer, Royal Taste Kitchen, had misused our certificate.
5)    It is a professional requirement that the audited report should come from an authorized practitioner in good standing with ICPAK.
20.    The procuring entity placed full reliance on the above confidential reference dated 3rd July 2024 from CPA John Wamutu Wachira and proceeded to disqualify RTKL’s tender under section 55(5) of the Public Procurement and Asset Disposal Act.
21.    In an attempt to controvert the procuring entity’s reason for disqualification of its tender as contained in the notification to RTKL dated 5th July 2024, RTKL procured a purported Wilson Kiume Ngare who deponed an affidavit sworn on 11th July 2024 as follows:
“I WILSON KIUME NGARE a resident of Nairobi County within the Republic of Kenya and of ID No. 24040383 Post Office Box number 30686-00100 Nairobi, do hereby make oath and state as follows:
1)    THAT I am an adult male of sound mind and an associate with Wamutu John Wachira P/1507 under Wamutu & Associates, Certified Public Accountants (K) of Post Office Box 50183-00200 Nairobi. (annexed copy of annual practicing licence-2024).
2)    THAT I can confirm that I audited and prepared books of accounts for Royal Taste Kitchen Limited for the years 2021/2022 and 2022/2023.
3)    THAT I make this affidavit conscientiously believing the same to be true to the best of my personal knowledge, belief and information.”
22.    By a Memorandum of Response dated 17th July 2024, KNEC and the Accounting Officer of KNEC  lodged a Memorandum of Response and also submitted the procurement records under Section 68 of the PPAD Act which included the due diligence report and evaluation report.

23.    That further, the Applicant has alleged that an individual by the name of Wilson Kiume Ngare was an associate of Wamutu & Associates and hence licensed by the firm to sign the audited accounts on behalf of the Applicant.

24.    A search of their member database for ICPAK does not present such an individual as a member and hence he is not licensed to sign audited accounts for any entity.

25.    The Ex Parte Applicant also filed a Memorandum of response dated 25th July 2024 wherein the Ex Parte Applicant raised concerns including that:
a.    Wilson Kiume Ngare does not hold a practicing licence issued under section 21 of the Accountants Act Cap 531.
b.    Wilson Kiume Ngare did not hold a valid annual licence issued under section 22 of the Accountants Act (Cap 531) for the respective years of audit.
c.    Upon searching the ICPAK member directory on https://www.icpak.com/search-member/ as of 25th July 2024, the Ex Parte Applicant herein established that Wilson Kiume Ngare is not registered under any of the categories of membership under section 4 of the Accountants Act Cap 531 of the laws of Kenya and is therefore unqualified to practice as an accountant.
d.    Even though Wilson Kiume Ngare purports to have prepared and audited the books of accounts for ROYAL TASTE KITCHEN LIMITED the said audited accounts were not signed as required under section 735 as read with section 736 of the Companies Act Cap 486.
26.    The PPARB in its impugned decision delivered on 2nd August 2024 held that the purported Affidavit of Wilson Kiume Ngare allegedly sworn on 11th July 2024 as “uncontroverted” on the basis that:
a.    The firm of Wamutu & Associates did not avail any sworn evidence to contradict the depositions made by Wilson Kiume Ngare in the administrative review proceedings.
b.    The letter dated 3rd July 2024 (which was a confidential reference to the procuring entity under section 83(2) of the PPAD Act and which predates the purported sworn affidavit of Wilson Kiume Ngare) does not address the depositions made by Wilson Kiume Ngare pertaining to preparation and audit of the accounts of ROYAL TASTE KITCHEN LIMITED at the firm of Wamutu & Associates. 
c.    The Respondents and the Interested Party before PPARB ought to have cross-examined Wilson Kiume Ngare on the contents of his Affidavit in order to challenge the averments therein.
d.    The Respondents and Interested Party before the PPARB merely disputed the averments made in affidavit of Wilson Kiume Ngare but took no steps to test its veracity or truthfulness for the evidential burden to shift.
27.    According to The Ex parte Applicant the PPARB made the above decision despite being fully aware that:
a.    The rules of procedure regarding cross-examination of contents of Affidavits are contained in Order 19, rule 2 of the Civil Procedure Rule and that these rules do not apply to administrative review proceedings having regard to section 28(2) of the PPAD Act (which states that PPARB shall develop its own rules to be gazetted by the Cabinet Secretary).
b.    The rules of procedure under Part XV of PPAD Regulations 2020 and which were gazetted by the Cabinet Secretary under Legal Notice No. 69 of 2020 and Legal Notice No. 220 of 2020 do not provide for cross-examination of witnesses.
c.    PPARB did not admit the firm of Wamutu & Associates as a party to the administrative review proceedings in review application no. 65 of 2024 in accordance with section 170(d)of the PPAD Act and therefore denied the firm an opportunity to “controvert” the contents of the Affidavit of Wilson Kiume Ngare.
d.    In the absence of the firm of Wamutu & Associates as a party to the proceedings, PPARB did not notify the said firm of Wamutu & Associates regarding the existence of the review application no. 65 of 2024 pursuant to section 168 of PPAD Act and rule 205 and therefore denied the firm an opportunity to “controvert” the contents of the Affidavit of Wilson Kiume Ngare.
e.    PPARB did not issue a hearing notice to the firm of Wamutu & Associates under section 206 and therefore denied the firm an opportunity to file any documents to “controvert” the contents of the Affidavit of Wilson Kiume Ngare.
f.    Since the firm of Wamutu & Associates was not notified by PPARB regarding the existence of review Application no. 65 of 2024, the said firm had no basis to swear the Affidavit to “controvert” the allegations contained in the Affidavit of Wilson Kiume Ngare.
g.    Under rule 218 of the PPAD Regulations 2020 the Review Board shall not be bound to observe the rules of evidence in the hearing of a request for review. The rules of evidence relating to affidavits therefore do not apply as an Affidavit (in support of a request for review) can be controverted through a Memorandum of Response as can be gleaned from section 205(3) of PPAD Regulations.
28.    It further argues that in the circumstances the PPARB lacked jurisdiction to import inapplicable rules of procedure as the basis for determining the Review Application no. 65 of 2024.
29.    According to The Ex parte Applicant the jurisdiction of PPARB under section 167(1) of PPAD Act must be properly invoked by a party applying for administrative review by pleading the specific breach of a duty imposed on a procuring entity by the PPAD Act or the PPAD Regulations.
30.    Secondly that, in its decision PPARB must make definitive findings of breach of duty by stating the specific provisions of PPAD Act, the PPAD Regulations and the Constitution as well as the manner in which those provisions were breached.
31.    It argues that PPARB mechanically concluded at paragraph 130 of its decision that KNEC’s evaluation committee unlawfully disqualified RTKL’s tender following due diligence contrary to the provisions of the Constitution, the Act, Regulations 2020 and the tender document but failed to disclose the provisions of the Constitution, the Act, Regulations 2020 and the tender document allegedly breached by KNEC’s evaluation committee and the manner in which they were breached.
32.    The basis for this conclusion is merely that the Affidavit of Wilson Kiume Ngare was not “controverted” despite the same having been controverted through the Memorandum of Response filed by KNEC, the Accounting Officer of KNEC and the Ex Parte Applicant herein in the said proceedings.
33.    The particulars of the Affidavit of Wilson Kiume Ngare (sworn on 11th  July 2024) were not know to the evaluation committee of KNEC during due diligence (which was concluded on 4th July 2024) and even if they were available at the material time, it would not change the findings since Wilson Kiume Ngare who allegedly prepared the audited accounts is unqualified and ineligible to practice as an accountant.
34.    The decision of KNEC to disqualify RTKL ought to have been upheld since the audited accounts submitted by RTKL were prepared by an ineligible and unqualified person which did not change the fact that as an unqualified person he was unable to sign the auditor’s report under section 735 of the Companies Act to vouch for the accuracy and completeness of the said audited accounts.
35.    The Ex parte Applicant also argues that whereas PPARB has powers under section 173(b) to give directions to the Accounting Officer of a procuring entity with respect to anything to be done or redone in the procurement proceedings, such powers can only be invoked to direct the performance of lawful acts.
36.    Reliance is placed in the case of Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR the Court of Appeal of Kenya while considering the scope and efficacy of the order of mandamus held as follows:
“The order must command no more than the party against whom the application is made is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way.”
37.    Further that the Affidavit of Wilson Kiume Ngare which was sworn in review application no. 65 of 2024 does not erase the confidential reference which was received by KNEC from the proprietor of Wamutu & Associates.
38.    The Applicant is concerned that whereas PPARB found fault in the due diligence exercise in Review No. 46 of 2024 and proceeded to annul and set aside the due diligence report, the PPARB did not find any fault in the due diligence exercise and report conducted by KNEC upon re-evaluation hence did not annul the due diligence exercise following re-evaluation in review application no. 65 of 2024.
39.    It is its case that the evaluation report, due diligence report, professional opinion of the Head of Procurement function and recommendations to disqualify RTKL remain intact and undisturbed.
40.    The Ex parte Applicant believes that it aptly demonstrated to the PPARB that the purported audited accounts for the years 31st December 2022 and 31st December 2023 submitted by RTKL to KNEC constituted false and inaccurate information about the RTKL’s qualifications since the said accounts were not audited by Wamutu & Associates as confirmed in the auditor’s letter to the procuring entity dated 3rd July 2024.
41.    Further that it is patently clear that RTKL was lawfully and validly disqualified by KNEC in exercise of the mandate under section 55(5) of the Public Procurement and Asset Disposal Act which states that “A State organ or public entity shall consider as ineligible a person for submitting false, inaccurate or incomplete information about his or her qualifications”.
42.    According to it, from a plain reading of Section 55(5) of the Act, it is patently clear that where any information regarding the bidder’s qualification is found to be false, inaccurate or incomplete, the procuring entity is mandated to consider such bidder as “ineligible” and to disqualify such bidder.
43.    The Ex parte Applicant’s case is that RTKL’s conduct of submitting false information regarding its qualification amounted to “fraudulent practice” which is prohibited under section 66(1) of the PPAD Act.
44.    Section 2 of PPAD Act  which defines “fraudulent practice” as follows is refered to by The Ex parte Applicant:
\"fraudulent practice\" includes a misrepresentation of fact in order to influence a procurement or disposal process or the exercise of a contract to the detriment of the procuring entity or the tenderer or the contractor, and includes collusive practices amongst tenderers prior to or after tender submission designed to establish tender prices at artificial non-competitive levels and to deprive the procuring entity of the benefits of free and open competition.”  [Emphasis added.]
45.    The tender document is said to define “fraudulent practice” as “any act or omission, including misrepresentation, that knowingly or recklessly misleads, or attempts to mislead, a party to obtain financial or other benefit or to avoid an obligation”.
46.    From the above provisions of section 66(3)(a) of the PPAD Act, it is argued that RTKL is disqualified by law from entering into a procurement contract with KNEC and therefore the Accounting Officer has no public duty to award a tender to an ineligible bidder.
47.    The Ex parte Applicant argues that in directing the accounting officer of KNEC to issue a letter of award to RTKL which would lead to execution of a procurement contract, it is patently clear that PPARB issued direction to the Accounting Officer of KNEC to perform a duty beyond the scope permitted by law and as such this is tantamount to compelling the Accounting Officer of KNEC to commit an illegality since RTKL is ineligible under section 55(5) of PPAD Act and is disqualified from entering into a procurement contract under section 66(3)(a) of PPAD Act.
48.    It is the applicant’s case that the impugned decision of PPARB is tainted with procedural unfairness, illegality, gross errors of law, irrationality, unreasonableness, and violation of the Ex Parte Applicant’s legitimate expectations
49.    The applicant is also concerned that the PPARB further relied on non-existent and inapplicable rules of evidence in total disregard for the provisions of rule 218 of the PPAD Regulations 2020 which states that “The Review Board shall not be bound to observe the rules of evidence in the hearing of a request for review under these Regulations”.
50.    Section 7(2)(d) of the FAAA, is said to mandate this Honourable Court to judicially review an administrative action if the action or decision was materially influenced by an error of law.
51.    Further that under section 7(2)(f) of the FAAA, this Honourable Court is also mandated to judicially review an administrative action if the administrator failed to take into account relevant considerations.
52.    The Ex parte Applicant places reliance in De Smith\'s Judicial Review 8th Ed notes as follows on the ground of “illegality” in judicial review of administrative decision:
“An administrative decision or other exercise of a public function is unlawful under the broad chapter head of “illegality” if the decision-maker:
a)    misinterprets a legal instrument relevant to the function being performed
b)    has no legal authority to make the decision
c)    fails to fulfil a legal duty
d)    exercises discretionary power for an extraneous purpose
e)    takes into account irrelevant considerations or fails to take account of relevant considerations
f)    improperly delegates decision-making power.
The task for the courts in evaluating whether a decision is illegal is essentially one of construing the content and scope of the instrument conferring the duty or power upon the decision-maker. The instrument will normally be a statute or delegated legislation, but it may also be an enunciated policy, and sometimes a prerogative or other common law power. The courts when exercising this power of construction are enforcing the rule of law, by requiring administrative bodies to act within the “four corners” of their powers or duties. They are also acting as guardians of Parliament’s will, seeking to ensure that the exercise of power is in accordance with the scope and purpose of Parliament’s enactments. [Emphasis added].”
53.    Reliance is also placed on Halsbury’s Laws of England treatise; where it is stated that an error of law arises in the following circumstances:
“A public body will err in law if it acts in breach of fundamental human rights; misinterprets a statute, or any other legal document, or a rule of common law; takes a decision on the basis of secondary legislation, or any other act or order, which is itself ultra vires; takes legally irrelevant considerations into account, or fails to take relevant considerations into account; admits inadmissible evidence, or takes a decision on no evidence; misdirects itself as to the burden of proof; fails to follow the proper procedure required by law; fails to fulfil an express or implied duty to give reasons or otherwise abuses its power.” [Emphasis added].
54.    The Ex Parte Applicant argues that PPARB in its impugned decision in review application no. 65 of 2024 failed to take account of the following legally relevant considerations and made its decision based on an affidavit which was patently ultra vires as demonstrated below:
a.    By its impugned decision dated and delivered on 2nd August 2024, PPARB usurped the mandate of KNEC’s evaluation committee in relation to due diligence/post qualification as enshrined in section 83 of Public Procurement and Asset Disposal Act and rule 80 of the Public Procurement and Asset Disposal Regulations but grossly failed to give effect to the said provisions despite being made aware that RTKL submitted in its tender audited accounts which were prepared by a person who is unqualified under sections 21 and 22 of the Accountants Act and ineligible to act as an auditor under section 772 and 777 of the Companies Act.
b.    The letter dated 3rd July 2024 from the firm of Wamutu & Associates under the hand of the proprietor (CPA John Wamutu) to the procuring entity was a confidential reference pursuant to section 83(2) of the PPAD Act. The said confidential reference was lawfully relied upon following due diligence to disqualify RTKL’s tender under section 55(5) of the PPAD Act.
c.    The purported Affidavit of Wilson Kiume Ngare sworn on 11th July 2024 was an afterthought by RTKL which was intended to controvert the contents of the confidential reference already received by the procuring entity from CPA John Wamutu in relation to RTKL’s alleged audited accounts.
d.    The averment that Wilson Kiume Ngare (who is unqualified to practice as an accountant under section 21 and 22 of the Accountants Act and ineligible to act as an auditor of RTKL under section 772 and 777 of the Companies Act) prepared and audited RTKL’s books of accounts further aggravated the circumstances of the RTKL’s qualification and fortified the reasons for disqualification of the RTKL’s tender.
e.    The PPARB failed to take account of legally relevant consideration namely that RTKL’s purported audited accounts were unsigned and were prepared by a person who is unqualified and ineligible to practice as an accountant under section 21 and 22 of the Accountants Act which therefore rendered the said accounts false, inaccurate and incomplete hence liable for disqualification under section 55(5) of the PPAD Act.
f.    In order to influence the procuring entity to award it the subject tender, RTKL made false representations to the procuring entity regarding its qualifications as contained in the unsigned “audited accounts” which were prepared by an ineligible and unqualified person. RTKL therefore engaged in fraudulent practice contrary to section 66(1) of the PPAD Act and the declarations made in Form SD2-Self Declaration Form of the tender document.
g.    Having engaged in fraudulent practice, RTKL is disqualified from entering into a procurement contract arising from the subject tender as stipulated in section 66(3)(a) of the PPAD Act. The PPARB erred in law in failing to take account of these legally relevant considerations when ordering the Accounting Officer of KNEC to issue an award letter to RTKL.
h.    PPARB failed to consider the confidential documents filed by the procuring entity under rule 205 of the Public Procurement and Asset Disposal Regulations 2020 including the confidential reference from CPA John Wamutu which cannot be impeached by the purported affidavit of Wilson Kiume Ngare (who is unqualified to practice as accountant under section 21 and 22 of the Accountants Act) and who did not exhibit that he was authorised by the firm of Wamutu & Associates to swear the said Affidavit.
55.    It is further its case that the PPARB took into account of the following legally irrelevant considerations, misdirected itself on the burden of proof and failed to follow the proper procedure for hearing administrative review application as demonstrated below:
a.    PPARB applied rules of procedure under Order 19, rule 2 of the Civil Procedure Rules regarding cross-examination of contents of Affidavits which are inapplicable to hearing and determination of administrative review applications having regard to section 28(2) of the PPAD Act (which states that PPARB shall develop its own rules to be gazette by the Cabinet Secretary).
b.    PPARB took account of legally irrelevant considerations namely applying rules of evidence in proceedings under the Civil Procedure Act, the Civil Procedure Rules and Evidence Act which are inapplicable to proceedings before PPARB pursuant to rule 218 of the Public Procurement and Asset Disposal Regulations 2020.
c.    PPARB took account of legally irrelevant considerations namely the Cambridge English Dictionary to define “audited accounts” to the exclusion of the plain meaning of “audited accounts” as contemplated under the Companies Act and the attendant professional qualifications to prepare audited accounts as stipulated under the Accountants Act and thereby misdirected itself in law.
d.    PPARB in its impugned decision failed to appreciate that the alleged practice of cross-examination of deponents of affidavits (which is stated in order 19, rule 2 of the Civil Procedure Rules) is inapplicable to administrative review proceedings and thereby irrationally faulted the Respondents and Interested Party before PPARB for failing to follow the said inapplicable procedure for cross-examination on contents of Affidavits.
56.    It also argues that under section 7(2)(e) of the FAAA, this Honourable Court is mandated to judicially review an administrative action if the administrative action or decision in issue was taken with an ulterior motive or purpose calculated to prejudice the legal rights of the Ex Parte Applicant.
57.    Further that by ordering the Accounting Officer of KNEC to issue a letter of award to RTKL within five days from 2nd August 2024 it is manifestly clear that PPARB issued the said orders to prejudice the Ex Parte Applicant’s right to judicial review within the timelines stipulated under section 175(1) of PPAD Act and thereby defeat the Ex Parte Applicant’s right of access to justice.
58.    The Ex parte Applicant states that under section 7(2)(i) of the FAAA, this Honourable Court is mandated to judicially review an administrative action if the action or decision is not rationally connected to:
i.    the purpose for which it was taken;
ii.    the purpose of the empowering provision;
iii.    the information before the administrator; or
iv.    the reasons given for it by the administrator;
59.    The Ex Parte Applicant avers that the impugned decision of PPARB in review no. 65 of 2024 is tainted with irrationality as demonstrated below:
a)    The impugned decision of PPARB regarding audited accounts of RTKL is not rationally connected to the information which was before PPARB including the confidential reference issued to the procuring entity by CPA John Wamutu during due diligence in accordance with section 83(2) of PPAD Act.
b)    The impugned decision of PPARB regarding that the Affidavit of Wilson Kiume Ngare was “uncontroverted” is not rationally connected with the reasons given by PPARB in its impugned decision considering further that PPARB at paragraph 128 acknowledged that the averments in the Affidavit of Wilson Kiume Ngare were disputed by the Respondents and Interested Party in the said proceedings. 
c)    The decision of PPARB on the manner in which the Respondents and Interested Party before it ought to have challenged the Affidavit of Wilson Kiume Ngare is not rationally connected with the empowering provisions of law on rules of procedure for hearing and determination of administrative review applications under Part XV of PPAD Regulations 2020 which have been developed pursuant to section 28(2) of the PPAD Act.
d)    The decision of PPARB regarding the discharge of burden of proof is not rationally connected with the information which was before the PPARB.
e)    The decision of PPARB directing issuance of award letter to RTKL is not rationally connected to the information before PPARB regarding the eligibility of RTKL under provisions of section 55(5) of the PPAD Act and disqualification from entering into a contract under section 66(3)(a) of the PPAD Act.
60.    It is the Applicant’s argument that under section 7(2)(k) of the FAAA, this Honourable Court is mandated to judicially review an administrative action if the administrative action or decision is unreasonable.
61.    The Ex Parte Applicant avers that the decision of PPARB in review no. 65 of 2024 was manifestly unreasonable as demonstrated below:
a)    PPARB acted unreasonably by mechanically concluding at paragraph 130 of its decision that KNEC’s evaluation committee unlawfully disqualified RTKL’s tender following due diligence contrary to the provisions of the Constitution, the Act, Regulations 2020 and the tender document but failed to disclose the provisions of the Constitution, the Act, Regulations 2020 and the tender document that were found by PPARB to have been allegedly contravened by KNEC’s evaluation committee.
b)    PPARB acted unreasonably by usurping the mandate of the KNEC’s evaluation committee in relation to due diligence under section 83 of PPAD Act and rule 80 of the PPAD Regulations 2020 but in so doing grossly failed to give effect to the said provisions despite being made aware that RTKL submitted in its tender audited accounts which were prepared by a person who is unqualified under sections 21 and 22 of the Accountants Act and ineligible to act as an auditor under section 772 and 777 of the Companies Act.
c)    PPARB unreasonably elevated the Affidavit of Wilson Kiume Ngare of 11th July 2024 above the confidential reference of CPA John Wamutu dated 3rd July 2024 (which was issued to KNEC under section 83(2) of PPAD Act) merely on the basis that the affidavit had a higher probative value than the letter despite the PPARB being fully aware that under rule 218 of the PPAD Regulations 2020 rules of evidence do not apply in administrative review proceedings.
d)    PPARB unreasonably elevated the Affidavit of Wilson Kiume Ngare of 11th July 2024 above the confidential reference of CPA John Wamutu dated 3rd July 2024 (which was issued to KNEC under section 83(2) of PPAD Act) without due regard to the fact that the confidential reference dated 3rd July 2024 was issued to KNEC prior to the Affidavit of 11th July 2024 hence the letter dated 3rd July 2024 could not reasonably be construed as the response to the Affidavit of 11th July 2024 as erroneously inferred and/or concluded by the PPARB at paragraph 119 of the impugned decision.
e)    PPARB acted unreasonably when it established that the audited accounts of RTKL had been prepared by an unqualified person under section 21 and 22 of the Accountants Act but proceeded to uphold the same without giving effect to the principles governing public procurement under section 3 of the PPAD Act including rule of law, professionalism and integrity.
f)    PPARB acted unreasonably in failing to find that in the Affidavit of Wilson Kiume Ngare sworn on 11th July 2024, he did not depone that he was duly authorized to swear the said Affidavit on behalf of Wamutu & Associates Advocates (to controvert the contents of the confidential reference dated 3rd July 2024 and issued to KNEC by CPA John Wamutu). In the absence of authority from Wamutu & Associates to depone the Affidavit of 11th July 2024, the PPARB acted unreasonably in relying on the said defective affidavit to controvert the confidential reference dated 3rd July 2024 and issued to KNEC by CPA John Wamutu.
g)    PPARB acted unreasonably by importing definition of “audited accounts” to justify the averments which were neither deposed in the Affidavit nor pleaded by any party in the administrative review proceedings.
h)    PPARB acted unreasonably by casually elevating the Affidavit of an unqualified person (namely Wilson Kiume Ngare who did not disclose any authority to act on behalf of the firm of Wamutu & Associates) to controvert a very significant confidential reference issued by CPA John Wamutu (the proprietor of Wamutu & Associates) during due diligence under section 83(2) of the PPAD Act.
62.    Under section 7(2)(m) of the FAAA, the Applicant states that this Honourable Court is mandated to judicially review an administrative action if the administrative action or decision violates the legitimate expectations of the person to whom it relates.
63.    On legitimate expectation the Ex parte Applicant places reliance on the cases of Republic v Kenya Revenue Authority Ex- Parte Aberdare Freight Services Ltd & 2 others [2004] eKLR ,Council of Civil Service Unions v Minister for Civil Service (1995) AC 374 and the Court of Appeal (Visram, Karanja & Koome, JJ.A) in the case of Kenya Revenue Authority & 2 others v Darasa Investments Limited [2018] eKLR. The 4th Edition, Vol. 1 (1) at page 151, paragraph 81 of HALSBURY\'S LAWS OF ENGLAND is also refered to
64.    The Ex Parte Applicant argues that the impugned decision violated the following legitimate expectations of the Ex Parte Applicant:

a)    The Ex Parte Applicant had a legitimate expectation that PPARB would conduct its procedures and determine the application no. 65 of 2024 in accordance with Part XV of the PPAD Regulations 2020. PPARB violated this legitimate expectation by faulting the Ex Parte Applicant herein for allegedly failing to controvert the purported Affidavit of Wilson Kiume Ngare through a procedure of cross-examination on the contents of Affidavit which is foreign and inapplicable under Part XV of the PPAD Regulations 2020.
b)    The Ex Parte Applicant had a legitimate expectation that PPARB would appreciate and give effect to the significance of confidential reference in due diligence process pursuant to section 83(2) of PPAD Act. PPARB violated this legitimate expectation by upholding an Affidavit by Wilson Kiume Ngare of 11th July 2024 which was issued long after the confidential reference from CPA John Wamutu dated 3rd July 2024 despite the absence of any authority exhibited by Wilson Kiume Ngare issued by the firm of Wamutu & Associates to controvert the previous confidential reference of CPA John Wamutu.
65.    The Ex Parte Applicant also had a legitimate expectation that PPARB would appreciate and give effect to section 55(5) of the PPAD Act pursuant to which RTKL’s tender was disqualified by KNEC.
66.    The PPARB is said to have violated this legitimate expectation by placing sole reliance on the Affidavit of Wilson Kiume Ngare who was lawfully incapable of controverting the confidential reference of the proprietor of Wamutu & Associates without his express authority exhibited in writing.
67.    The Applicant also places reliance in the case of Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others 2004(4) SA 490 (CC) where the Constitutional Court of South Africa (O’Regan, J)  addressed its mind on review of administrative action. Section 2 of the FAAA which defines “administrative action” and “decision” is also refered to.
68.    The Court of Appeal in Suchan Investment Limited v Ministry of National Heritage & Culture & 3 others [2016] eKLR is also cited by the Ex parte Applicant on merit review in Judicial Review.
69.    It is further urged that an analysis of Article 47  of  the  Constitution  as  read  with  the  Fair Administrative Action Act reveals the implicit shift of judicial review to include aspects of merit review of administrative action.
70.    The applicant argues that flowing from the above, the Court of Appeal of Kenya underscored that an administrative action or decision is reviewable on the grounds enumerated under section 7 of FAAA which are also anchored on Article 47. The learned Judges of Appeal are said to have also underscored that judicial review on grounds under section 7 of FAAA invites some degree of merit review which therefore departs from the limited scope of judicial review under common law.
71.    The applicant also places reliance in the  Court of Appeal (Omolo, Tunoi & Shah, JJ.A) in the case of Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR where it defined the scope and efficacy of the judicial review orders of certiorari.
72.    The Ex parte Applicant’s argument is also that according to Halsbury’s Laws of England treatise a decision, such as the impugned decision of the Review Board herein, which is tainted with errors of law and irrationality can be quashed by this Honourable Court since the Review Board has no jurisdiction to make an error of law.
73.    The Court in Republic v Public Procurement Administrative Review Board & 2 others Ex-parte Coast Water Services Board & another [2016] eKLR is said to have issued an order of certiorari to quash the decision of the Review Board where the Court found that the decision was tainted.
74.    The case of Republic v Public Procurement Administrative Review Board & 2 others Ex-parte Coast Water Services Board & another supra is said to bear a striking similarity to the circumstances of the decision of PPARB in review Application number 65 of 2024 where the Board has bypassed a critical stage in the tender process namely the due diligence stage where the RTKL was found to have submitted false and inaccurate information regarding its qualifications in the subject tender.
75.    The PPARB did not find any fault with the process of due diligence exercise conducted by KNEC which explains why the due diligence report by the evaluation committee of KNEC was not set aside in the same way that PPARB did in review application no. 46 of 2024.
76.    The PPARB’s decision is said to have therefore depicted a clear departure from the procedure for conducting due diligence under section 83 of PPAD Act as read with section 80 of PPAD Regulations.
77.    In arguing the case for the order of prohibition, the Applicant refers to the case of Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge supra
78.    The applicant further argues that the order of prohibition sought herein by the Ex Parte Applicant would give effect to the express provisions of section 55(5) of PPAD Act under which RTKL is ineligible to be awarded the subject tender in light of the intact findings of due diligence conducted by KNEC. Similarly, the order of prohibition would give effect to section 66(3)(a) of PPAD Act under which RTKL is disqualified from entering into a procurement contract.
79.    The case of Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge supra is again refered to in support of the prayers for the order of mandamus.
80.    The Ex Parte Applicant notes that under section 175(7) of PPAD Act, “where a decision of the Review Board has been quashed, the High Court shall not impose costs on either party”. In this regard, the Ex Parte Applicant concedes, on the strength of section 175(7) of the PPAD Act, that upon quashing the decision of PPARB as sought herein, each party should bear their respective costs.
The 1st Respondent’s case;
81.    Through the replying Affidavit of, James Kilaka, the 1st Respondent opposes the application and argues that this court lacks jurisdiction to hear and determine an appeal against the 1st Respondent’s Decision dated 2nd August 2024.
82.    On 31st  May 2024, the 2nd Interested Party filed Request for Review No. 46 of 2024 dated 30th May 2024 seeking the following orders from the 1st Respondent with respect to Tender No. KNEC/ONT/2023-2024/07 for Provision of Catering and Events Set Up Services on a Two-Year Contract Basis:
a)    1st and 2nd Respondent’s decision contained in the letter of notification dated 28th May, 2024 disqualifying the Applicant’s bid with respect to Tender No. KNEC/ONT/2023-2024/07 for Provision of Catering and Event Set Up Services be and is hereby nullified and/or set aside.

b)    The 1st and 2nd Respondent’s decision contained in the Letter of Notification dated 28th May, 2024 awarding the Tender No. KNEC/ONT/2023-2024/07 for Provision of Catering and Event Set Up Services 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 2nd Respondents to award the Applicant Tender No. KNEC/ONT/2023-2024/07 for Provision of Catering and Event Set Up Services as the validly established lowest and most responsive evaluated bidder.

d)    An Order be and is hereby issued extending the tender validity period for a further Thirty (30) Days.

e)    The Respondents be and is hereby ordered to pay the costs of and incidental to these proceedings; and

f)    Such other or further reliefs as this Board shall deem just and expedient.
83.    The 1st Respondent thereafter issued the following orders on 21st June 2024 in Request for Review No. 46 of 2024:
a)    The preliminary objections raised at paragraphs 24, 25 and 26 of the 1st and 2nd Respondents’ Memorandum of Response dated 6th  June 2024 be and are hereby dismissed.
b)    The due diligence report dated 20th March 2024 and signed by members of the Procuring Entity’s Evaluation Committee with respect to Tender No. KNEC/ONT/2023-2024/07 for Provision of Catering and Events Set Up Services on a Two-Year Contract Basis for the Kenya National Examinations Council be and is hereby cancelled and set aside.
c)    The letters of Notification of Intention to Award dated 27th May 2024 issued by the 1st Respondent to the Interested Party, the Applicant and all other unsuccessful bidders in regard to the subject tender be and are hereby nullified and set aside.
d)    The 1st Respondent is hereby ordered to direct the Evaluation Committee of the Procuring Entity to admit the Applicant and the Interested Party back into the procurement process and re-evaluate their tenders from the Financial Evaluation stage and proceed with the procurement process to its logical conclusion in accordance with the law and taking into account the findings of the Board in this decision.
e)    For certainty, the re-evaluation ordered at D above shall be carried out and completed within 14 days from the date of this decision.
f)    Considering that the procurement process is not complete, each party shall bear its own costs in the Request for Review.
84.    According to an Evaluation Report submitted to the 1st Respondent pursuant to Section 67(3)(e) of the Act, the 1st Interested Party’s Evaluation Committee reconvened on 2nd July 2024 and re-evaluated financial proposals submitted in the subject tender by the Ex parte Applicant and the 2nd Interested Party herein as ordered by the 1st  Respondent in its Decision dated 21st June 2024 in Request for Review No. 46 of 2024 and at the conclusion of the Financial Evaluation, bids were ranked according to their submitted tender sums.
85.    It is its case that according to a due diligence report also submitted to the 1st Respondent pursuant to Section 67(3)(e) of the Act, the 1st  Interested Party’s Evaluation Committee having noted that the lowest evaluated bidder was the 2nd Interested Party herein proceeded to carry out due diligence and following the due diligence exercise, it concluded that it was not able to rely on the Financial Statements and Audited Accounts submitted by the 2nd Interested Party following which it disqualified the 2nd Interested Party and proceeded to carry out due diligence on the Ex Parte Applicant being the second lowest evaluated bidder and being satisfied with the due diligence findings, resulted to award the subject tender to the Ex parte Applicant as communicated in a notification letter dated 5th July 2024.
86.    On 12th July 2024, the 2nd Interested Party being dissatisfied with the decision filed a Request for Review Application No. 65 of 2024 dated 11th July 2024 before the 1st Respondent being “Request for Review No. 65 of 2024” seeking the following orders:
1)    The 1st and 2nd Respondent’s decision contained in the letter of notification dated 5th July, 2024 disqualifying the Applicant’s bid with respect to Tender No. KNEC/ONT/2023-2024/07 Tender for Provision of Catering and Event Set Up Services be and is hereby nullified and/or set aside.
2)    The 1st and 2nd Respondent’s decision contained in the Letter of Notification dated 5th July, 2024 awarding the Tender No. KNEC/ONT/2023-2024/07 Tender for Provision of Catering and Event Set Up Services to the Interested Party be and is hereby nullified and/or set aside.
3)    An Order be and is hereby issued directing the 1st and 2nd Respondents to award the Applicant Tender No. KNEC/ONT/2023-2024/07 Tender for Provision of Catering and Event Set Up Services as the validly established lowest and most responsive evaluated bidder.
4)    An Order be and is hereby issued extending the tender validity period for a further Thirty (30) Days.
5)    The Respondents be and is hereby ordered to pay the costs of and incidental to these proceedings; and
6)    Such other or further reliefs as this Board shall deem just and expedient.
87.    Vide a Notification of Appeal and letter dated 12th July 2024, both the 2nd Respondent and 1st Interested Party were notified of the filing of Request for Review No. 65 of 2024.
88.    The 1st Respondent then identified the following issues called for determination:
a)    Whether the Applicant’s tender was lawfully disqualified from the subject tender following the Post Qualification/Due Diligence exercise in accordance with the provisions of the Constitution, the Act, Regulations 2020 and the Tender Document.
b)    What orders the Board should grant in the circumstances$1
89.    On 2nd August 2024, the 1st Respondent made the following final orders:
1.    The letter of Notification of Intention to Award dated 5th July 2024 issued by the 1st Respondent to the Interested Party, with respect to Tender No. KNEC/ONT/2023-2024/07 for Provision of Catering and Events Set Up Services on a Two Year Contract Basis be and are hereby nullified and set aside.
2.    The letters of Notification of Intention to Award dated 5th July 2024 issued by the 1st Respondent to the Applicant and all other unsuccessful bidders in regard to Tender No. KNEC/ONT/2023-2024/07 for Provision of Catering and Events Set Up Services on a Two Year Contract Basis be and are hereby nullified and set aside.
3.    The 1st Respondent is hereby ordered to proceed and issue the Applicant with a letter of notification of intention to award Tender No. KNEC/ONT/2023-2024/07 for Provision of Catering and Events Set Up Services on a Two Year Contract Basis within 5 days from the date of this decision and to proceed with the procurement process to its logical conclusion in accordance with the law and taking into account the findings of the Board in this decision.
4.    Each party shall bear its own costs in the Request for Review.
90.    In determining whether the 2nd Interested Party’s tender had been lawfully disqualified from the subject tender following the due diligence exercise carried out by the Evaluation Committee, the 1st  Respondent established at paragraph 113 of its Decision dated 2nd  August 2024 that the bone of contention was on eligibility of the 2nd Interested Party to participate in the tendering process of the subject tender based on its contested audited accounts.
91.    The 1st Respondent  argues that in its decision dated 2nd  August 2024 it took note of the import of the provisions of Section 55 of the Act in addition to Sections 735 and 736 of the Companies Act and Section 19, 20, 21, and 22 of the Accountants Act relied upon by both the Ex parte Applicant and the 2nd Respondent and 1st Interested Party herein as against the confidential documents submitted to it pursuant to Section 67(3)(e) of the Act as set out at paragraphs 114 to 122 of the decision.
92.    It is further its case that it also took note of the contentions raised by the 2nd Interested Party with regard to the maker of its Audited Accounts laying emphasis on its Supporting Affidavit sworn by Emily Kerubo Kamau on 11th July 2024 and an affidavit sworn on 11th July 2024 by Wilson Kiume Ngare and the import of the said affidavits at paragraphs 123 to 127.
93.    The 1st Respondent believes that it rightfully found that if the Ex parte Applicant, the 2nd  Respondent and the 1st Interested Party disputed the averments made in the Affidavit by Mr. Wilson Kiume Ngare, they ought to have summoned him for cross-examination in order to challenge the averments made therein for the 1st Respondent to assess whether the evidential burden of proof had shifted to the 2nd  Interested Party for it to disapprove the allegations made concerning its Audited Accounts at paragraph 128 and 129 of its Decision dated 2nd August 2024.
94.    The 1st Respondent is of the strong persuasion 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. 65 of 2024 and that it acted within the dictates of Article 227 of the Constitution, the Act and Regulation 2020.
95.    He argues that the Decision dated 2nd August 2024 was well reasoned, fair, reasonable, rational and lawful without overreaching the 1st Respondent’s mandate and jurisdiction.
96.    It argues that 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 considered and interrogated the evidence, documents, pleadings, and information before it in arriving at its Decision in Request for Review No. 65 of 2024.
97.    The 1st  Respondent prays that in the event the application is allowed, the Honorable Court should remit the Request for Review application No. 65 of 2024 for re-hearing by the Respondent subject to this Honorable Court’s directions noting that the 1st Respondent is the specialized central independent body mandated to review, hear and determine tendering disputes.
The 2nd Respondent’s and 1st  Interested Party’s Case;
98.    The 2nd Respondent’s case is based on a Replying Affidavit sworn by Nicholas Mangata dated 21st August 2024, the Statutory Statement dated 7th August 2024 and Verifying Affidavit sworn by the same Nicholas Mangata on even date and as filed in HCJRMISC No. E097 of 2024.
99.    The facts and the background are identical to what the Ex parte Applicant has adduced. The 2nd Respondent and 1st Interested Party support the Ex parte Applicant’s case save that the costs of the suit should be awarded to the 2nd Respondent & 1st Interested Party.
100.    In a decision rendered on 2nd August 2024, the 1st Respondent found that the 2nd  Respondent’s had unlawfully disqualified the 2nd  Interested Party following the due diligence exercise contrary to the provisions of the Constitution, the PPAD Act, Regulations and the tender document. The 1st Respondent then ordered the 2nd Respondent to award the tender to the 2nd Interested Party within five (5) days. 
101.    The main issue was whether the 2nd Interested Party’s accounts were audited within the applicable legal framework being The Companies Act Cap 486 (Revised 2022) and the Accountants Act No. 15 of 2008 (Revised 2019) and correspondingly, if not, whether the 2nd Interested Party was then lawfully disqualified from the process.
102.    It is their case that the law provides that audited accounts must be prepared by a qualified accountant who is a member of ICPAK with a current practicing certificate, and the professional opinion of the auditor must be signed, dated and bear the auditor’s name which must be prominently displayed on the auditor’s opinion and report.
103.    Section 18 of the Accountants Act No. 15 of 2008 (Revised 2012) is said to  give the qualifications of who can prepare audited accounts. Sections 735, 736, 772 of the Companies Act (Revised 2022) are said to state the requirements for audited accounts.
104.    According to the 2nd Respondent and 1st Interested Party the reasoning of the 1st Respondent and its finding that audited accounts were merely “a company’s financial records which have been officially examined to check that they are accurate”, a definition drawn from the Cambridge Dictionary, completely disregards these express provisions of statute law as contained in the Accountants Act and the Companies Act and is therefore unlawful and illegal and a blatant disregard of the law.
105.    Reliance is placed in the case of Republic v Public Procurement Administrative Review Board; Consortium of GBM Projects Limited and ERG Insaat Ticaret Ve Sanayi A.S (interested party); National Irrigation Board Ex Parte [2020] eKLR, where it was held as follows: -
“155.   Section 80(2) of the act provides in mandatory terms 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.
156. A proper construction of the impugned decision, the bid documents and the law leaves me with no doubt that the procuring entity\'s decision to cancel the tender was in conformity with the bid documents and the law. Put differently, the applicant has demonstrated that the Respondent acted ultra vires by failing to uphold the express requirements of the Tender documents and the provisions of the law cited above.”
106.    Section 83 of the PPAD Act is said to state that:
(1) An evaluation committee may, after tender but prior to award, conduct due diligence and present a Report in writing to confirm and verify the qualifications of a tenderer who submitted the lowest evaluated responsive tender to be awarded the contract in accordance with this Act.
(2) The conduct of due diligence under (1) may include obtaining confidential references from persons from whom the tenderer has had prior engagement. “
107.    The parties also refer to Regulation 80 of the 2020 which states -
(1) Pursuant to Section 83 of the Act, a procuring entity may, prior to the award of a tender, confirm the qualifications of the tenderer who submitted the bid recommended by the evaluation committee, in order to determine whether the tenderer is qualified to be awarded the contract in accordance with sections 55 and 86 of the Act.
108.    It is also their case that the purpose of due diligence is meant to confirm the eligibility of the tenderer as provided under Section 55 and 86 of the PPAD Act and therefore those that have not met the criteria in Section 55 (1) following due diligence can be disqualified under Section 55 (4) and (5) of the PPAD Act when such information availed is not in line with Section 55 (1) and (5).
109.    The case of Republic v Public Procurement Administrative Review Board; Principles Styles Limited & another (Interested Parties) Ex Parte Accounting Officer, Kenya Water Towers Agency & another [2020] eKLR, is refered to on the conduct of due diligence.

110.    The parties also refer to the case of Republic v Public Procurement Administrative Review Board Ex parte Meru University of Science & Technology; M/S Aaki Consultants Architects and Urban Designers (Interested Party) [2019] eKLR, where the Court held as follows: -
“43. In order to give meaning to Section 83 of the act, the Regulations and the Tender documents, regard must be had to their wording, read in context, and having regard to the purpose of the entire act and the dictates of Article 227 of the Constitution. Read against this backdrop, the plain wording of the relevant provisions and the scheme of section 83 of the act make it clear that the provisions are meant to ensure a fair, equitable, transparent, competitive procurement process which is consistent with the provisions of Article 227 of the Constitution. The wide meaning ascribed to the provisions would preclude a prospective tenderer who has not passed the due diligence test from being awarded the award. It is for this reason that the court must read the provision and the entire act and avoid reading one provision to the exclusion of all others.”

111.    It is their case that the audited accounts in a procurement process prove the financial capability of the tenderer to meet the tender requirements and confirm the eligibility of the tenderer in line with Section 55 (1) (b) of the PPAD Act.

112.    According to them the 1st Respondent’s decision blatantly disregarded the protective provisions that were legislated into law to protect those who shall rely on audited accounts, requiring that the same be prepared by a qualified professional, a member of the ICPAK, and that audited accounts must be duly signed and the name of the auditor prominently displayed.
113.    The 1st  Respondent is accused of failing to take into consideration the fact that the audited accounts were neither signed nor was there an indication of the name of the auditor and were also accounts whose accuracy, authenticity and completeness could not be ascertained by any procuring entity as per provisions of the law in Section 55 (4) and (5) of the Public Procurement & Asset Disposal Act that require tenderers to provide evidence of information to ensure that the provisions of section 55(1) on Eligibility of a bidder, had been satisfied. This empowered the 2nd Respondents to consider such a tenderer ineligible where such information was false, inaccurate, misleading and/or incomplete according to the law.
114.    The 1st  Respondent’s decision suggested that during the due diligence process, the 2nd Respondent should have sought clarification from the 2nd Interested Party as they did the confidential due diligence exercise.
115.    This according to the 2nd Respondent and 1st Interested Party was a clear misinterpretation of the law, in view of the provisions of Section 83 of the PPAD Act which states that the process is confidential and Regulations 80 of the 2020 Regulations do not place any such a requirement on the Procuring Entity during the due diligence process.
116.    Further it is stated that the accounting firm of Wamutu & Associates, who was alleged to have prepared the audited accounts of the 2nd Interested Party, was one of the firms that the 2nd Respondent’s sought a confidential reference from. No reference to the 2nd  Interested Party was made as this was a confidential process. The 1st  Respondent’, in inferring that clarification should have been sought from the 2nd Interested Party, clearly misapplied the law.
117.    The 1st  Respondent is said to have based its decision on averments contained in the affidavit of Wilson Ngare Kiume which did not contain any supporting evidence.
118.    According to the 2nd Respondent and 1st Interested Party the first rule of evidence as contained in Section 107 of the Evidence Act is that whoever desires a court to give judgement on any legal right must prove the existence of the facts that they rely on. Further that a mere statement of facts in a sworn affidavit without any supporting evidence does not meet the threshold of evidence and cannot be a basis for a decision.
119.    The 1st Respondent’s consideration of the said Verifying Affidavit, was an error in law. No supporting evidence was adduced to support the averments contained therein. No evidence was provided to prove his qualifications as an accountant, either academically or professionally, his employment or association with M/s Wamutu & Associates nor his membership of ICPAK, the professional body for accountants, to support the averments in the Affidavit.
120.    No evidence was availed to the 1st Respondent to counter the evidence that the said Wilson Ngare Kiume was not an accountant and was not registered with ICPAK.
121.    According to them the 1st Respondent failed to take into consideration the fact that the purported author of the audited accounts was not even a qualified practicing accountant as required under Section 18 of the Accountants Act which states that “No person shall practice as an accountant unless he is the holder of a practicing certificate and a license to practice is in force”.
122.    It is their case that the 1st Respondent failed to take into consideration the fact that since the proprietor of the firm had already disowned the audited accounts, this rendered the said audited accounts presented by the 2nd Interested Party as part of their bid, as fraudulent practice as provided for under Section 66 of the Public Procurement & Asset Disposal Act. Further that notably, the definition of the ‘fraudulent practice’ as provided in the PPAD Act is misrepresentation of fact in order to influence a procurement practice.
123.    The audited accounts, having been disowned by the proprietor of the accounting firm and alleged auditor, clearly amounted to fraudulent practice and the 1st  Respondent should not have based their decision on such. 
124.    The 2nd Respondent it is urged presented to the 1st Respondent, evidence that the purported associate who is alleged to have prepared the audited accounts was neither a member of ICPAK, did not exist on the Membership Database of ICPAK and neither did he have a current practicing certificate. 
125.    The 1st Respondent in paragraph 127 stated there was no evidence from the firm of M/s Wamutu & Associates contradicting the depositions from Mr. Wilson Kiume Ngare in his affidavit. This it is stated was factually untrue as the letter from the firm of M/s Wamutu & Associates dated 3rd July 2024 states clearly that they are not the auditors of the 2nd Interested Party, the stated postal address is not theirs, the accounts of the 2nd Interested Party were not signed by them, and also that it was a professional requirement that the audited report should come from an authorized practitioner in good standing with ICPAK.
126.    Further that the decision of the 1st Respondent to disregard the contents of this letter from the proprietor was thus clear evidence that the decision of the 1st Respondent was not rationally connected to the information that was before it.
127.    It is argued that given that the 2nd  Interested Party’s audited accounts were not signed it means that the 2nd Interested Party therefore did not provide complete information and hence the authenticity, accuracy and completeness of their information could not be ascertained. Further, that they did not indicate the name of the accountant providing the professional opinion and nor the practicing number from ICPAK. 
128.    The Audited accounts it is also argued did not meet the qualifications provided under Sections Section 735, 736 and773 of the Companies Act as read with Sections 18, 19, 20, 21 and 22 of the Accountants Act, during due diligence and the audited accounts cannot be considered as true, accurate nor complete information as envisaged under Section 55 (5) of the Act and hence the 2nd Respondent’s decision of disqualifying the 2nd Interested Party were fair, reasonable and lawful.
129.    The 1st Respondent’s decision was against legitimate expectation of the 2nd Respondent and other bidders who were able to meet the requirement to provide audited accounts.
130.    The 2nd Respondent and 1st Interested Party argue that for the 1st Respondent to order the 2nd Respondent to issue an award letter to a tenderer who provided unsigned and unnamed audited accounts the same is in contravention of the law. To further buttress this argument the reliance is placed in the case of R vs Public Procurement Review Board & 4 Others Ex Parte BRITAM Life Assurance Company (K) Ltd & Another [2018] eKLR where the court  emphasised that procuring entities that should consider only conforming, compliant or responsive tenders. The case of Ernie Campbell & CO Ltd vs National Housing Corporation & Others, (reference in PPARB No. 15 of 2024, Nash EQ INC vs Sacco Regulatory Authority & Agile Business Solutions Ltd) is also refered to in this regard.
131.    The 1st  Respondent is said to have been taking over the role of a procuring entity and acting in excess of its powers and in support of this position the case of R vs Public Procurement Review Board & 4 Others Ex parte BRITAM Life Assurance Company (K) Ltd & Another [2018] eKLR is cited.

132.    On the grounds for the grant of judicial review remedies the case of R v Public Procurement Administrative Review Board; Chief Executive Officer, Sacco Society Regulatory Authority & 2 others (Interested Parties); Nash EQ INC (Exparte) (Application E069 of 2024) [2024] KEHC 5107 (KLR) where the court was guided by Lord Diplock in the English case of Council of Civil Service Unions v Minister for the Civil Service (1985) A.C. 374,410 is refered to.

2nd Interested Party Case;
133.    The 2nd Interested Party opposes the application through their Replying Affidavit dated 15th August 2024.

134.    In addressing the issue whether the decision by the Public Procurement Administrative PPARB (PPARB) was fair, rational, reasonable and legally sound, considering the relevant statutory provisions and the evidence before it, the 2nd Interested Party places reliance is in the case of Republic v Law Society of Kenya Disciplinary Tribunal & another Exparte Muema Kitulu [2018] where the court emphasised that in order to succeed in an application seeking judicial review orders a party must show that the decision complained of is tainted with illegality, irrationality and procedural impropriety.

135.    It is its case that it is evident that the decision rendered by the PPARB was fair, rational, reasonable, and legally sound. Further that in the present matter, the PPARB acted squarely within its jurisdiction as conferred by the Public Procurement and Asset Disposal Act, 2015.

136.    The PPARB\'s decision is said to have been premised on a proper interpretation and application of the relevant legal provisions, including but not limited to the Public Procurement and Asset Disposal Act, the Accountants Act, and the Companies Act.

137.    Section 28 of the Public Procurement and Asset Disposal Act is said to expressly vest the PPARB with the authority to review and determine disputes arising from decisions made by tender evaluation committees.

138.    The 2nd Interested Party also refers the court to Section 173 of the Act which grants the PPARB the power, upon conclusion of a review, to substitute its decision for that of the accounting officer of a procuring entity in procurement or disposal proceedings. Further that in exercising this mandate, the PPARB found that the decision of the 1st  Respondent was tainted with procedural and substantive irregularities.
139.    Consequently that, in accordance with Section 173(a) and (b) of the Public Procurement and Asset Disposal Act, the PPARB lawfully directed the 2nd Respondent to issue a letter of notification of intention to award the subject tender to the 2nd Interested Party, thereby fulfilling its statutory duty to ensure that the procurement process is conducted fairly and in compliance with the law.
140.    It is its case that the doctrine of irrationality, as expounded in Muema Kitulu, addresses situations where a decision is so grossly unreasonable that no reasonable authority, properly instructed on the facts and law, could have reached such a conclusion. It is the 2nd Interested Party’s case that in this instance, the decision of the PPARB was firmly grounded in logical reasoning and a thorough analysis of both the applicable law and the evidence presented by the parties involved.
141.    It is its case that the PPARB\'s reliance on the sworn affidavit of Mr. Wilson was both rational and justified.
142.    Also, that the affidavit, which was not challenged or contradicted by the 1st Interested Party, the Exparte Applicant, or Wamutu & Associates, the accounting firm implicated, addressed the specific issues raised in the confidential letter dated 3rd July 2024.
143.    The 2nd Interested Party’s case is that the absence of any further evidence to dispute Mr. Wilson’s affidavit or to undermine its credibility rendered it appropriate for the PPARB to consider it as a credible and substantive response to the concerns raised.
144.    It is also its case that as articulated in Muema Kitulu, the concept of reasonableness requires that decisions align with logical reasoning and acceptable moral standards.
145.    Further that in the present matter, the PPARB demonstrated reasonableness by recognizing that the disqualification of the 2nd  Interested Party lacked a valid legal or factual foundation and would have led to an unjust outcome if left unaddressed.
146.    It is strongly persuaded that PPARB\'s decision to overturn the initial award made by the tender committee and to reallocate the tender to the 2nd Interested Party was not an overreach of its mandate, but rather a necessary corrective action to maintain the integrity of the procurement process.
147.    The PPARB\'s intervention is said to have been predicated on the determination that the 2nd Interested Party fulfilled all the requisite legal and procedural criteria, thus making it the legitimate awardee of the tender.
148.    It is also its case that by taking this corrective measure, the PPARB ensured that the tendering process adhered to legal and procedural standards, thereby upholding the principles of fairness and integrity in public procurement.
149.    According to the 2nd Interested Party procedural impropriety, as defined in Muema Kitulu, arises when there is a failure to act in a manner that upholds the principles of fairness, particularly regarding the observance of natural justice and procedural fairness. In the present case, the PPARB adhered to these principles by ensuring that all parties had the opportunity to be heard, that evidence was duly examined, and that the decision was grounded on the substantive merits of the case.
150.    The PPARB\'s procedures it is stated were conducted in a manner that was fair and consistent with the principles of natural justice and The Exparte Applicants were afforded the opportunity to challenge Mr. Wilson’s affidavit but opted not to exercise this right.
151.    On the issue of audited accounts and the auditor’s qualification the 2nd interested party refers the court to Paragraph 127 of the PPARB\'s decision where in it made the following finding;
“The issue herein is not whether the accounts as submitted by the applicant were prepared by the firm of Wilson Kiume Ngare. The firm that is said to have been prepared its audited accounts is the firm of Wamutu & Associates which has not availed any sworn evidence to contradict the depositions made by Mr. Wilson Kiume Ngare in these proceedings.”

152.    It is its case that Wamutu & Associates, being a licensed auditing firm, satisfies the statutory criteria set out under the Accountant Act and fulfills the definition of an auditor as prescribed in section 3 of the Companies Act.
153.    Further that the firm\'s compliance with these requirements, underpins the validity of the financial statements submitted by the 2nd Interested Party.
154.    Consequently, it is argued that the PPARB\'s conclusion that the 2nd Interested Party\'s financial statements were duly audited by qualified persons and that the 2nd Interested Party remained eligible for the tender was legally sound and appropriately aligned with the requirements of the applicable statutes and to support this argument the case of National Bank of Kenya Limited v Anaj Warehousing Limited [2015] eKLR (hereinafter Anaj Warehousing Limited) is relied on where the court held that the transgressor, is the advocate, and not the client as the illegality is the assumption of the task of preparing the conveyancing document, by the advocate, and not the seeking and receiving of services from that advocate.
155.    It is its case that, even if it were demonstrated that the audited accounts of the 2nd Interested Party were prepared by an unqualified auditor, it would be inequitable to penalize the 2nd Interested Party solely on this basis as it had no reasonable means to independently verify the licensing status of the employees of the auditing firm and thus should not be held accountable for any subsequent discovery of non-compliance by the employees working within the licensed auditing firm.
156.    The PPARB\'s decision to accept the audited accounts submitted by the 2nd Interested Party, despite the subsequent findings regarding the Mr Wilson\'s licensing status, it is argued aligns with the principles of fairness and equity articulated in the Anaj Warehousing Limited case.
157.    The PPARB\'s decision to place greater weight on Mr. Wilson\'s sworn affidavit over the unsworn confidential letter dated 3rd July 2024 is well-supported by established legal standards.
158.    The 2nd Interested Party also argues that on the issue of the affidavit, the Exparte Applicants\' assertion that the PPARB disregarded the confidential letter and relied solely on the sworn affidavit is without merit and fails to recognize the tribunal\'s authority to determine the evidentiary value of submissions presented before it.
159.    Reliance is placed in the case of Jamaal Omar Hussein v Republic [2019] eKLR where the Court of Appeal went on to state:
“There is a presumption that a person who swears to tell the truth will do so and since evidence tendered on oath is subjected to cross-examination to test its credibility and veracity, then the same carries more probative weight”
160.    The 2nd Interested Party’s case is that a sworn affidavit, by virtue of being made under oath, imposes a legal obligation on the deponent to provide truthful testimony and allows for its scrutiny through cross-examination. This procedural safeguard ensures that the evidence presented in the affidavit is credible and reliable.
161.    It is also its case that Mr. Wilson\'s affidavit, dated 11th July 2024, was specifically in response to the claims made in the confidential letter dated 3rd July 2024 and therefore reliance on the unsworn confidential letter is effectively impeached by the sworn affidavit.
162.    Mr. Wilson\'s affidavit is said to challenge and nullify any assertions contained in the confidential letter regarding purported non-compliance or irregularities in the audited accounts of the 2nd Interested Party.
163.    Further that given that Mr. Wilson\'s affidavit was unchallenged and was subject to cross-examination, the PPARB\'s decision to prioritize this sworn evidence over the unsworn letter was both rational and legally sound.
164.    The Court in Republic v Public Procurement Administrative PPARB & 2others Ex-Parte Pelt Security Services Limited [2018] eKLR is refered to where it stated that;
“Courts generally grant tribunals a degree of latitude when it comes to dealing with evidence. Courts have said that the weighing of various pieces of evidence is generally a matter for the tribunal, and \'merely to ignore \"relevant material\" does not establish jurisdictional error. There is no obligation on decision makers \'to refer to every piece of evidence and every contention made by an applicant in their written reasons\'; and, inferences should not be drawn that an issue or evidence has been overlooked simply because a piece of evidence was not expressly discussed in the course of the reasons for decision”
165.    It is its case that the PPARB, as a specialized tribunal, possesses the discretion to assess and weigh the evidence before it and determine which pieces carry more probative value. The fact that the PPARB did not explicitly analyze or rely on every piece of evidence, such as the confidential letter, does not amount to a jurisdictional error or render its decision irrational or unreasonable.
166.    Also, that the PPARB\'s reliance on Mr. Wilson\'s sworn affidavit over the unsworn confidential letter should not be construed as a wholesale disregard for the letter rather, it reflects the PPARB\'s reasoned determination that the affidavit was more credible and reliable evidence in resolving the issues presented.
167.    In response to the issue whether the PPARB\'s decision that the tender evaluation committee should have sought clarification from the 1st Interested Party following the receipt of the confidential letter was lawful the 2nd Interested Party relies on Clause 29.1 and 31.6 of the Tender Document.
168.    Reliance is also placed in the case of Republic v Non-Governmental Organizations Coordination Board Ex-Parte Evans Kidero Foundation [2017J eKLR where the court highlighted the principle of the right to be heard.

169.    According to the 2nd Interested Party the PPARB\'s decision that the tender committee should have sought clarification from the 2nd  Interested Party following the receipt of the confidential letter was entirely lawful and consistent with both the contractual provisions and the principles of natural justice. Further that given that the confidential letter raised adverse information potentially affecting the 2nd  Interested Party\'s tender qualification, it was both proper and necessary for the evaluation committee to seek clarification from them. This step according to the 2nd Interested Party was crucial to uphold fairness and ensure that the evaluation process was conducted transparently and equitably.
170.    By failing to seek clarification, the tender committee is said to have potentially compromised the integrity of the evaluation process. It is also its case that however, this procedural oversight was effectively rectified by the sworn affidavit provided by Mr. Wilson. The affidavit, sworn under oath, addressed the concerns raised in the confidential letter and provided a detailed account of the 2nd Interested Party\'s compliance with the tender requirements. The opportunity for cross-examination is said to have been made available by the PPARB, providing a further avenue to challenge and verify the contents of Mr. Wilson\'s affidavit. However, the 1st Interested Party is said to have  failed to avail themselves of this option as highlighted in Paragraph 128 of the PPARB\'S decision.
171.    The 2nd Interested Party also argues that the decision not to engage in cross-examination implies that the 1st Interested Party either accepted the sworn affidavits content as satisfactory or chose not to dispute it. Further that had additional clarification or further scrutiny of Mr. Wilson\'s affidavit been deemed necessary, the proper procedural recourse was to use the cross-examination opportunity to address any lingering doubts.

172.    The 2nd Interested party has placed reliance in the case of Republic v Public Procurement Administrative Review Board &2 others Exparte Rongo University [2018] eKLR where the court stated;
“A bid that contains \"minor informalities\" is not considered non-responsive. A minor informality or irregularity, in turn, is defined as:-\"one that is merely a matter of form and not of substance. It also pertains to some immaterial defect in a bid or variation of a bid from the exact requirements of the invitation that can be corrected or waived without being prejudicial to other bidders. The defect or variation is immaterial when the effect on price, quantity, quality or delivery is negligible when contrasted with the total cost or scope of the supplies or services being acquired. The contracting officer either shall give the bidder an opportunity to cure any deficiency resulting from a minor informality or irregularity in a bid or waive the deficiency, whichever is to the advantage of the Government.”
173.    Section III of the Tender Document, is said to provided for the requirement for audited accounts to be categorized as a technical criterion carrying a score of only 10 marks. According to the 2nd Interested Party the tender document did not impose any further conditions regarding the certification of the audited accounts, nor did it specify that the accounts would be used for in-depth financial analysis, such as determining financial ratios, turnover, or equity profits.

174.    It is also its case that the tender document expressly stated that only bidders who score 70 percent and above at the technical evaluation stage would proceed to financial evaluation.

175.    Further that given that the audited accounts formed only a minor part of the technical evaluation, any alleged irregularity in these documents would, as guided by the Court\'s decision in Republic v Public Procurement Administrative Review Board & 2 others Exparte Rongo University [2018] eKLR, qualify as a \"minor informality” and such a defect, being immaterial and correctable, should not automatically lead to disqualification.

176.    The Interested Party also argues that if the 1st Interested Party genuinely believed that the audited accounts were incomplete or non-compliant, the appropriate response would have been to deduct the 10 marks allocated for this requirement at the technical evaluation stage. It is argue that even with such a deduction, the 2nd Interested Party would still have attained a score of 88 percent-well above the 70 percent threshold required to advance to the financial evaluation stage

177.    It is its case that given that the 2nd Interested Party emerged as the lowest bidder during the financial evaluation, they would have remained the successful bidder despite the purported issues with the audited accounts.
178.    According to the 2nd Interested Party disqualifying it based solely on a minor deviation, rather than following the prescribed procedure of awarding or deducting marks in line with the tender document, would have been disproportionate and unjust.
179.    Further that such an approach would overlook the minor and rectifiable nature of the alleged defect while undermining the principles of fairness and transparency in public procurement.
180.    On another issue it argues that the decision to allow for cross-examination in this case, though not utilized by the Ex parte Applicant, was fully within the discretion of the PPARB, as it aimed to resolve discrepancies and conflicting evidence brought by the parties.
181.    It also argues that by allowing cross-examination, the PPARB exercises its mandate of evaluating the authenticity of the evidence presented before it, ensuring that the final decision is based on reliable and verifiable facts.
182.    Section 28(2) of the Public Procurement and Asset Disposal Act read together with Rule 218 of the Public Procurement and Asset Disposal Regulations is said to stipulate that;
\"The PPARB shall not be bound to observe the rules of evidence in the hearing of a request for review under these Regulations.”
183.    It is its case that Rule 218 clearly exempts the PPARB from strict adherence to formal rules of evidence, it does not preclude it from employing principles of cross-examination, rules of evidence, or procedures drawn from the Civil Procedure Rules where such principles are necessary for a fair and just determination of the matter before it.
184.    The 2nd Interested Party’s case is that discretionary powers granted under Rule 218 empower the PPARB to tailor its procedures to ensure justice, impartiality, and fairness-particularly in complex cases involving conflicting evidence or nuanced legal issues.
185.    The case of Hartley Limited v The Accounting officer, Kenya Ports Authority &Another [2023] eKLR is refered to where it was held that administrative bodies with specialized mandates, like the PPARB, have the flexibility to adopt procedures akin to those used in civil litigation, particularly where issues of evidence and cross-examination arise.
186.    The guiding principle is to ensure fairness and justice for all parties involved. In this case, the decision to rely on cross-examination and to apply principles of evidence and civil procedure was a reasonable exercise of the PPARB\'s discretion aimed at achieving a fair and just outcome.
187.    The 2nd Interested Party places reliance in the case of Keroche Industries Limited vs. Kenya Revenue Authority & 5 Others Nairobi HCMA No. 743 of 2006 [2007] 2 KLR 240,on the issue of legitimate expectation.
188.    The 2nd Interested Party’s case is that the PPARB did not violate the legitimate expectation owed to the Ex parte Applicant. Further that any legitimate expectation held by the Ex parte Applicant cannot supersede the PPARB\'s duty to uphold principles of fairness, equity, and legality in public procurement.
189.    The PPARB is said to have found that the Evaluation Committee had failed to adhere to the prescribed due process, resulting in an irregular decision.
190.    Further that it is within the statutory mandate of the PPARB to correct such errors to ensure that the procurement process remains lawful and transparent.
191.    The Ex parte Applicant\'s expectation that the PPARB would validate a procedurally flawed decision according to the 2nd Interested Party is inherently unreasonable and contrary to established principles of good governance and that upholding such an expectation would compromise the integrity of public procurement and undermine the very objectives the PPADA seeks to protect.
192.    According to the 2nd Interested Party’s case, the PPARB\'s actions were consistent with its duty to ensure that all procurement activities are conducted within the framework of legality and fairness, even if this results in the disappointment of subjective expectations.
ANALYSIS AND DETERMINATION;
Issues for determination;
193.    Upon perusing the pleadings and rival submissions of the parties herein, the following issues lend themselves for hearing and determination;
i.    Whether the applicants and the 2nd interested party have made out a case for the grant of the orders sought.
ii.    Who shall bear the costs$2
The 1st issue is whether the applicants and the 2nd  interested party have made out a case for the grant of the orders sought.
194.    In order for a party to succeed in judicial review matters, they have to demonstrate that their case, falls within the principles as highlighted in the case of the case of Pastoli vs Kabale District Local Government Council & Others, (2008) 2 EA 300,to the effect 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).”
195.    In the case of Republic v Cabinet Secretary, Ministry of Agricultures, Livestock & Fisheries; Cabinet Secretary, Ministry of Industry, Trade & Co-operatives (Interested Party) Tanners Association of Kenya (Suing through its Chairman Robert Njoka Ex Parte Applicant [2019] eKLR, the Court stated as follows at paragraph 23 of the judgment:
“Safeguarding legality is the most important purpose for the judicial review of administrative actions. Thus, a person seeking judicial review of an administrative decision must be able to persuade the court that there are grounds for review in order for the legality of the administrative decision to be judicially challenged. In one sense, there must always be the premise of “want of legality.” Differently stated, in response to a challenge to the legality of administrative action, courts generally need to consider the compliance with both substantive and procedural legal rules. This is because any administrative decision-making process involves the exercise of legally conferred powers and the observation of legally prescribed procedures.”
196.    In Republic v Public Procurement Administrative Review Board; Accounting Officer, Kenya Rural Roads Authority & 2 others (Interested Parties) Ex Parte Roben Aberdare (K) Ltd [2019] eKLR the court held that:
“First, in public procurement regulation, it is a general rule that procuring entities should consider only conforming, compliant, or responsive tenders. Tenders should comply with all aspects of the invitation to tender and meet any other requirements laid down by the procuring entity in its tender documents. Bidders should, in other words, comply with tender conditions; a failure to do so would defeat the purpose of supplying information to bidders for the preparation of tenders and amount to unfairness if some bidders were allowed to circumvent tender conditions. As stated above, the second Interested Party complied with the bid requirements. Second, it is important for bidders to compete on an equal footing. Moreover, they have a legitimate expectation that the procuring entity will comply with its tender conditions. Third, requiring bidders to submit responsive, conforming, or compliant tenders also promotes objectivity and encourages wide competition in that all bidders are required to tender on the same work and to the same terms and conditions. Fourth, fairness must be decided on the circumstances of each case. Whatever is done may not cause the process to lose the attribute of fairness or, in the constitutional sphere, the attributes of transparency, competitiveness, and cost-effectiveness. A procuring entity is bound to adhere to the terms of the procurement process.”
197.    In line with the principles of equality before the law and the dictates of fair administrative action, this court makes a finding that the order by the 1st Respondent to the effect that the 2nd Respondent does award the 2nd  Interested Party within five (5) days, has the effect of taking away the rights of the other bidders without any justification. The 1st Respondent acted ultra vires.

198.    In arriving at this finding, I am guided by the case of R vs Public Procurement Review Board & 4 Others Ex parte Britam Life Assurance Company (K) Ltd & Another [2018] eKLR where it was  held that:
“112. In view of my conclusions herein above, it is my finding that the order that the award be made within 7 days is illegal to the extent it limits or had the potential of limiting the ex parte applicant\'s Right to Request for Review within the statutory guaranteed period of 14 days.”
199.    It also this court’s finding that the decision by the 1st Respondent did not meet the requirements provided under Section 167 (1) of the PPAD Act to the extent that the 2nd Interested Party failed to plead or even disclose whether it suffered or risked suffering any loss or damage due to a breach of duty imposed. 

200.    In the case of Republic v Public Procurement Administrative Review Board; Principles Styles Limited & another (Interested Parties) Ex Parte Accounting Officer, Kenya Water Towers Agency & another [2020] eKLR, it was held as follows:-
“66. … The due diligence was in my view a mandatory requirement. The Evaluation Committee is required to conduct a post-qualification of the lowest evaluated responsive Tenderer, to determine the Tenderer’s physical capability to perform the contract. Using the criteria specified in the Bidding Documents, this review include an assessment of the Tenderer’s technical, financial and physical resources available to undertake the contract, including his current and past similar projects. The process should also be guided by the values and principles in Article 10 of the Constitution which include integrity. These principles are binding on all State organs, State officers, public officers and all persons whenever any of them applies, or interprets, the Constitution; enacts, applies or interprets any law; or makes or implements public policy decisions. Section 3 of the Act expressly provides that the principles in Article 10 do apply.
67. If the lowest evaluated responsive Tenderer fails post-qualification, his Tender should be rejected, and the next ranked Tenderer should then be subjected to post-qualification examination. If successful, this Tenderer should receive the award. If not, the process continues for the other Tenderers. The rejection of a Tender for reasons of post-qualification requires substantial justification, which should be clearly documented in the attachments to the Evaluation Report.”
201.    It is this court’s finding that The 1st Respondent’s decision completely disregarded the provisions of Section 55 of the PPAD Act on eligibility of a bidder. A tenderer is only eligible if it is not insolvent, in receivership, bankrupt or in the process of being wound up. This can only be proven through audited accounts prepared in the manner prescribed in law. 

202.    The 1st Respondent failed to take into consideration the fact that the purported author of the audited accounts was not a qualified practicing accountant within Section 18 of the Accountants Act which states that “No person shall practice as an accountant unless he is the holder of a practicing certificate and a license to practice is in force”.

203.    In the case of Sceneries Limited v National Land Commission [2017] eKLR, it was  held that:

“Fairness demands that a public body should never act so unfairly that it amounts to abuse of power. This means that if there are express procedures laid down by legislation that it must follow in order to reach decision, it must follow them and it must not be in breach of the rules of natural justice. The body must act impartially, there must be fair hearing before a decision is reached.” [Emphasis Ours].
204.    Section 83 of the PPAD Act states that:
“(1) An evaluation committee may, after tender but prior to award, conduct due diligence and present a Report in writing to confirm and verify the qualifications of a tenderer who submitted the lowest evaluated responsive tender to be awarded the contract in accordance with this Act.
(2) The conduct of due diligence under (1) may include obtaining confidential references from persons from whom the tenderer has had prior engagement.”

205.    Further, Regulation 80 (1) of the 2020 Regulations provides that  pursuant to Section 83 of the Act, a procuring entity may, prior to the award of a tender, confirm the qualifications of the tenderer who submitted the bid recommended by the evaluation committee, in order to determine whether the tenderer is qualified to be awarded the contract in accordance with sections 55 and 86 of the Act.
206.    The purpose of due diligence is meant to confirm the eligibility of the tenderer as provided under Section 55 and 86 of the PPAD Act and therefore those that have not met the criteria in Section 55 (1) following due diligence can be disqualified under Section 55 (4) and (5) of the PPAD Act when such information availed is not in line with Section 55 (1) and (5).

207.    Section 55 (5) stipulates that a State Organ or Public Entity shall consider as ineligible a person for submitting false, inaccurate or incomplete information about his or her qualifications. 

208.    The law clearly prescribes what constitutes audited accounts in the Companies Act Cap 486 (Revised 2022) and the Accountants Act No. 15 of 2008 (Revised 2019).

209.    Audited accounts must be prepared by a qualified accountant who is a member of The Institute of Certified Public Accountants of Kenya (ICPAK) with a current practicing certificate, and the professional opinion of the auditor must be signed, dated and bear the auditor’s name which must be prominently displayed on the auditor’s opinion and report.

210.    The 1st Respondent erred in failing to appreciate and invoke the foregoing clear provisions of the law and by merely relying on a definition from the Cambridge Dictionary. 

211.    Section 18 of the Accountants Act No. 15 of 2008 (Revised 2012) stipulates that no person shall practice as an accountant unless he is the holder of a practicing certificate and a license to practice is in force.

212.    Section 735 (1) of the Companies Act (Revised 2022) stipulates that Subject to subsection (2), an auditor shall-

           (a) Sign and date the auditor’s report; and
(b) Ensure that the auditor’s name is prominently displayed in the Report.


213.    Section 736 of the Companies Act (Revised 2022) stipulates that;
(1) A company shall not publish a copy of the auditor’s report that relates to the company, unless the copy-
(a) state the name of the auditor and, if the auditor is a firm, the name of the person who signed the report.
(2) A Company is regarded as publishing the Report if it publishes, issues or circulates or otherwise makes it available to the public …Section 2 of PPAD Act defines “fraudulent practice” as follows:
\"fraudulent practice\" includes a misrepresentation of fact in order to influence a procurement or disposal process or the exercise of a contract to the detriment of the procuring entity or the tenderer or the contractor, and includes collusive practices amongst tenderers prior to or after tender submission designed to establish tender prices at artificial non-competitive levels and to deprive the procuring entity of the benefits of free and open competition. [Emphasis added.]

214.    The tender document defines “fraudulent practice” as “any act or omission, including misrepresentation, that knowingly or recklessly misleads, or attempts to mislead, a party to obtain financial or other benefit or to avoid an obligation”.

215.    Section 66(3)(a) of PPAD Act provides as follows:
Without limiting the generality of the subsection (1) and (2), the person shall be—
(a) disqualified from entering into a contract for a procurement or asset disposal proceeding.
216.    From the above provisions of section 66(3)(a) of the PPAD Act, it is clear that RTKL is disqualified by law from entering into a procurement contract with KNEC.

217.    In the case of Council of Civil Service Unions v Minister for the Civil Service (1985) A.C. 374,410 the Court held as follows: 
By “illegality” as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable. ‘
By “irrationality” I mean what can by now be succinctly referred to as “Wednesbury unreasonableness” (Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 K.B. 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the court\'s exercise of this role, I think today it is no longer needed to resort to Viscount Radcliffe\'s ingenious explanation in Edwards v Bairstow [1956] A.C. 14 of irrationality as a ground for a court\'s reversal of a decision by ascribing it to an inferred though unidentifiable mistake of law by the decision-maker. “Irrationality” by now can stand upon its own feet as an accepted ground on which a decision may be attacked by judicial review.
In the case of Republic v Public Procurement Administrative Review Board; Consortium of GBM Projects Limited and ERG Insaat Ticaret Ve Sanayi A.S (interested party); National Irrigation Board Ex Parte [2020] eKLR, it was held as follows: -“155.   Section 80(2) of the act provides in mandatory terms 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.
156. A proper construction of the impugned decision, the bid documents and the law leaves me with no doubt that the procuring entity\'s decision to cancel the tender was in conformity with the bid documents and the law. Put differently, the applicant has demonstrated that the Respondent acted ultra vires by failing to uphold the express requirements of the Tender documents and the provisions of the law cited above.”
218.    In the words of Wade & Forsyth in Administrative Law, 10th edition (Oxford: Oxford University Press: 2009), pp 222 – 225, “all errors of law are now reviewable”. This is also the law in Kenya as Section 7(2)(d) of the Fair Administrative Action Act, 2015 empowers the High Court to review the Respondent’s decision if it was materially influenced by an error of law.

219.    It is my holding that the 1st Respondent ignored  the fact that the 2nd Interested Party’s audited accounts were not signed, bore no name of the auditor when it went on to render a decision that the same met the requirements for audited accounts, in complete disregard of the law and professionals’ standards that have been clearly espoused in law.

220.    The upshot of the foregoing leads me to the finding and I so hold that the 1st Respondent acted illegally in arriving at the impugned decision.

221.    A procurement process that fails to meet express legislative provisions offends the national values and principles of governance.

222.    This court has a duty to protect Kenyans from procurement processes that do not accord with the Fair Administrative Action Act. To allow a flawed procurement contract to form the basis of the provision of the services that Kenyans detracts from the rule of law. Such procurement contracts erode the competition aspect that underpins all tendering processes.

223.    To allow a procurement contract to be executed under such an illegal environment would lead to a violation of the competitor’s legitimate expectation at the expense of economic growth.
The Applicant has also sought orders of prohibition.

224.    According to the Black’s Law Dictionary 9thEdition, the remedy of prohibition “arrests the proceedings of any tribunal, board or person exercising judicial functions in a manner or by means not within its jurisdiction or discretion”.

225.    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.\"

226.    Having proven that the 1st Respondent acted illegally, this court finds it necessary to grant an order prohibiting as sought and I so hold.

The Applicant also seeks an order of Mandamus compelling the Accounting Officer of Kenya National Examinations Council to execute a procurement contract with URTH Caffe Limited as the successful bidder pursuant to the notification of award dated 5th July 2024.

227.    The 1st Respondent is the specialized central independent body mandated to review, hear and determine tendering disputes. I am of the view that the 1st Respondent will be best placed to rehear and determine this  issue and this court will not grant this order.

228.    On another front, the Ex parte Applicant argued that the 1st  respondent served upon its advocates on 19th August 2024 a defective Replying Affidavit  and that is fatally incompetent as it offends the provisions of section 5 of the Oaths and Statutory Declarations Act in  that it only bears a stamp impression of a purported Judith Akuku Opili and was not duly signed by a Commissioner for Oaths.

229.    I have looked at the Replying Affidavit and satisfied myself that the Commissioner for Oaths indeed stamped the Replying Affidavit. The Applicant has not suffered any prejudice as a result of the lack of the signature of the Commissioner for oaths. In any event the Applicant has responded to matters raised in the said Replying Affidavit in a manner that leaves the court satisfied that it understood what the deponent was advancing.
The issue of Costs;

230.    In Republic vs. Rosemary Wairimu Munene, Ex-parte Applicant vs. Kururu Dairy Farmers Co-operative Society Ltd the court held;
\"The issue of costs is the discretion of the court as provided under the above Section. The basic rule on attribution of costs is that costs follow the event it is well recognized that the principle costs follow the event is not to be used to penalize the losing party; rather it is for compensating the successful party for the trouble taken in prosecuting or defending the case\".

231.    It is my finding that the 1st Respondent shall bear the costs of the 2nd Respondent and the 2nd interested Party.

232.    In its arguments, The Applicant noted that under section 175(7) of PPAD Act, “where a decision of the Review Board has been quashed, the High Court shall not impose costs on either party”. In this regard, the Ex Parte Applicant concedes, on the strength of section 175(7) of the PPAD Act, that upon quashing the decision of PPARB as sought herein, each party should bear their respective costs.
Disposition;
233.    This court has a duty to preserve and uphold the purpose and principles of public procurement under Article 227 of the Constitution and the Public Procurement and Asset Disposal Act 2015.

234.    The procurement suffered from procedural unfairness, illegality, gross errors of law, irrationality and unreasonableness.

Orders;
1.    An Order of Certiorari is hereby issued removing to this Honourable Court quashing the entire decision of the Public Procurement Administrative Review Board dated 2nd August 2024 in Request for Review Application No. 65 of 2024: ROYAL TASTE KITCHEN LIMITED =VERSUS= ACCOUNTING OFFICER, KENYA NATIONAL EXAMINATIONS COUNCIL, KENYA NATIONAL EXAMINATIONS COUNCIL & URTH CAFFE LIMITED arising from the tender number KNEC/ONT/2023-2024/07 FOR PROVISION OF CATERING AND EVENT SET UP SERVICES.
2.    An order of Prohibition is hereby issued prohibiting the Accounting Officer of Kenya National Examinations Council from awarding ROYAL TASTE KITCHEN LIMITED and/or executing a procurement contract with ROYAL TASTE KITCHEN LIMITED in respect to the tender number KNEC/ONT/2023-2024/07 FOR PROVISION OF CATERING AND EVENT SET UP SERVICES.
3.    The prayer for an Order of Mandamus compelling the Accounting Officer of Kenya National Examinations Council to execute a procurement contract with URTH CAFFE LIMITED as the successful bidder pursuant to the notification of award dated 5th July 2024 is disallowed.
4.    The Request for Review application No. 65 of 2024 is hereby remitted for re-hearing and determination by the 1st Respondent within 7 days.
5.    Costs to the Kenya National Examinations Council and the 2nd  Interested Party.

…………………………….…………………
J. CHIGITI (SC)
JUDGE