1. The Application that is before the court for determination is the one dated 2nd March 2026 wherein it seeks the following reliefs:
1) …Spent.
2) A temporary injunction does hereby issue, suspending the procurement proceedings in respect of Tender No. KEBS/PRE-Q/T006/2025/2028- Pre-Qualifications for Provision of Pre-Export of Verification of Conformity (PVoC) to Standards Services the Year 2025-2028 pending hearing and determination of the present Application.
3) A Judicial Review order in the nature of Certiorari does hereby issue quashing the Respondent’s decision dated 17th February 2026 in PPARB Application No. 14 of 2026; World Standardization Certification & Testing Group (Shenzhen) Co. Limited v Accounting Officer/ Managing Director, Kenya Bureau of Standards & 10 Others.
4) A Judicial Review order in the nature of Mandamus does hereby issue, compelling the 1st Interested Party to prequalify the Applicant in respect of Tender No. KEBS/PRE-Q/T006/2025/2028- Pre-Qualifications for Provision of Pre-Export Verification of Conformity (PVoC) to Standards Services the Year 2025-2028.
5) A Judicial Review order in the nature of Mandamus does hereby issue, compelling the 1st Interested Party to invite the Applicant together with the other prequalified bidders in respect of Tender No. KEBS/PRE-Q/T006/2025/2028- Pre-Qualifications for Provision of Pre-Export Verification of Conformity (PVoC) to Standards Services the Year 2025-2028, to submit their respective bids.
6) A Judicial Review order in the nature of Prohibition does hereby issue prohibiting the 1st Respondent or any officer under him or acting on his instructions or delegation from executing any contract with bidders in respect of Tender No. KEBS/PRE-Q/T006/2025/2028- Pre-Qualifications for Provision of Pre-Export Verification of Conformity (PVoC) to Standards Services the Year 2025-2028.
7) Costs of the Application.
8) Any such other order that may advance the cause of justice.
The Applicant’s case.
2. It is the Applicant’s case that sometime in 2025, the 1st and 2nd Interested Parties invited interested bidders to submit their bids in response to Tender No. KEBS/PRE-Q/T006/2025/2028- Pre-Qualifications for Provision of Pre-Export Verification of Conformity (PVoC) to Standards Services the Year 2025-2028, hereinafter “the subject tender.”
3. The Applicant tendered its bid, which was subsequently established by the Evaluation Committee as being responsive. It is its case that on or about 24th April 2025, the Applicant received a Notification Letter from the Procuring Entity indicating that its bid had been established as responsive and that it had been prequalified for Zone – 1 China, subject to a successful due diligence.
4. On 23rd September 2025, the Applicant received a letter from the 1st Respondent notifying it that it had not been pre-qualified for the subject pre-qualification for reasons that, despite the Applicant having met the requirements for prequalification, allegedly, it had breached a previous contract with the 2nd Respondent, which observation was noted during a due diligence exercise.
5. The Applicant filed a Request for Review before the Respondent, hereinafter “the Board” in PPARB Application No. 98 of 2025, through which it challenged the manner in which the due diligence exercise was conducted by the Procuring Entity.
6. On 27th October 2025, the board issued a Decision finding that the due diligence exercise was not carried out in accordance with the law, citing that the Applicant was not afforded a hearing before the Procuring Entity took an adverse decision against it.
7. The Procuring Entity unsuccessfully challenged the Board's decision at the High Court in Milimani High Court Case No. HCJRMISC E142 of 2025, wherein the Court upheld the finding of the Board and directed the Procuring Entity to afford the Applicant a hearing in its consideration of the complaint with respect to the alleged breach of a past contract.
8. Via a letter dated 9th January 2026, the Procuring Entity’s Evaluation Committee wrote to the Applicant demanding the Applicant’s response to adverse materials relating to performance of a previous contract, the same adverse material the Evaluation Committee had used as a basis for disqualifying the Applicant, and which material the Board had expunged from the Respondents’ due diligence report.
9. It is its case that the same adverse material is also the subject of a pending Court case in Nairobi High Court Case No. HCCOMM/E632/2025 - World Standardization Certification and Testing Group Shenzhen Limited v Kenya Bureau of Standards in which the Applicant has challenged the 2ndRespondent’s termination of contract based on the same offending material. By a letter dated January 15, 2026, the Applicant responded to the Evaluation Committee’s letter of 9th January 2026.
10. The Evaluation Committee’s letter was in flagrant breach of the Board Decision of 27th October 2025 and the law.
11. The same allegations had been made by the Procuring Entity in its letter of 14th July 2025 and had been addressed by the Applicant vide its letters of 29th July 2025 and 12th August 2025. The Procuring Entity has never acknowledged and/or addressed the Applicant’s response.
12. It is also its case that the adverse material was the subject of a pending Court case, and none of the other parties had been subjected to this criterion during due diligence phase.
13. It further argues that the adverse material related to a previous contract that had nothing to do with the present pre-qualification.
14. Lastly it argues that there was open bias as none of the other bidders had been subjected to this due diligence.
15. According to the Applicant, the Evaluation Committee’s deliberation of the issues of the alleged breach would prejudice the Applicant and embarrass the proceedings in the pending case.
16. The Applicant also took issue with the Procuring Entity’s Evaluation Committee sitting to establish the merits of the allegations by the Procuring Entity, citing the absence of independence as the Procuring Entity would essentially be sitting as a judge in its own cause.
17. The Applicant is further aggrieved that the Evaluation Committee disregarded the representations and objections, with the result that the Procuring Entity went ahead to disqualify it at the due diligence stage on account of its own allegations of breach of a past contract.
18. The Applicant filed a Request for Review before the Board in PPARB Application No. 14 of 2026, taking issue with the manner in which the due diligence exercise was carried out.
19. The Applicant argued that it apprised the Board of its responses to the Evaluation Committee and the objections on account of the pending court case in Milimani High Court Case No. HCCOMM E632 of 2025; World Standardization Certification & Testing Group (Shenzhen) Limited v Kenya Bureau of Standards, as well as the apparent lack of objectivity for the Evaluation Committee to preside over a complaint by a Procuring Entity from which its membership was drawn.
20. On 17th February 2026, the Board dismissed the Applicant’s Request for Review and directed the Accounting Officer to conclude the prequalification exercise, while excluding the Applicant’s bid.
21. The Applicant submits that the Board’s decision dated 17th February 2026 was materially influenced by an error of law in that The Board’s decision gives a wide berth to the established doctrines of nemo judex in causa sua and sub judice.
22. The Applicant first challenged its disqualification from the procurement proceedings in Tender No. KEBS/PRE-Q/T006/2025/2028- Pre-Qualifications for Provision of Pre-Export Verification of Conformity (PVoC) to Standards Services the Year 2025-2028, herein “the subject tender” through PPARB Application No. 98 of 2025. The Applicant had previously received a Notification that it had been prequalified, only to be subsequently disqualified at the due diligence stage, on a complaint of an alleged breach of contract with the Procuring Entity.
23. The said breach was at the time and still remains the subject of litigation at the High Court in Milimani High Court Case No. HCCOMM E632 of 2025; World Standardization Certification & Testing Group (Shenzhen) Limited v Kenya Bureau of Standards.
24. The Applicant argues that the Board considered PPARB Application No. 98 of 2025 and correctly found that the Evaluation Committee fell into grave error when it purported to disqualify the Applicant’s bid at the due diligence stage without affording it an opportunity to be heard on the complaint made against it. This decision was affirmed by this Court in Milimani High Court Case No. HCJRMISC E142 of 2025.
25. Consequently, the Evaluation Committee invited the Applicants to make representations in respect of the complaints of breach of contract made against it by the Procuring Entity. The Applicant offered its representations, including apprising the Evaluation Committee of the existence of court proceedings in Milimani High Court Case No. HCCOMM E632 of 2025, where the very questions of the alleged breach were pending determination.
26. The Applicant argues that it notified the Evaluation Committee that it would go against natural justice for it, as a Committee with membership drawn from within the Procuring Entity, to preside over a complaint made by the Procuring Entity, as this would be akin to a judge sitting on their own cause.
27. It argues that further, the criterion of past performance was not applied to other bidders during due diligence. The Applicant is troubled that notwithstanding the Applicant’s representations, the Evaluation Committee went ahead to recommend the disqualification of the Applicant’s bid, prompting the Applicant to file the proceedings in PPARB Application No. 14 of 2026.
28. The Applicant is aggrieved since, the Board still went ahead to affirm the Evaluation Committee’s decision to make a conclusion on the basis of an undetermined case at the High Court, as well as to sit on a matter where the Committee was technically speaking the complainant and the judge at the same time.
29. The Applicant argues that the Board, through its decision, sanctioned the departure from the established legal doctrines of nemo judex in causa sua and sub judice, without any justification whatsoever.
30. It is its case that the Board’s decision dated 17th February 2026, is not rationally connected to the purpose for which it was taken, the purpose of the empowering provision and the information before it.
31. Article 227 of the Constitution of Kenya, 2010 decrees that all public procurement processes should be undertaken under a system that is fair, equitable, transparent, competitive, and cost-effective.
32. Consequently, Sections 27 and 28 of the Public Procurement and Asset Disposal Act (Cap 412 C) establish the Board as a central board to hear and determine public procurement and asset disposal disputes. Further, Section 173 empowers the Board to take appropriate remedial action against decisions by Procuring Entities that offend the law.
33. In the present case, the Board considered PPARB Application 14 of 2026, proceedings in which it was apparent that the Procuring Entity had arrived at a decision to disqualify a bidder after a due diligence process that offends the law i.e. the legal doctrines of nemo judex in causa sua and sub judice. However, the Board shirked from its statutory role by dismissing the Request for Review and overlooking the apparent breaches of the law.
34. The Board’s decision dated 17th February 2026 was unreasonable in the circumstances. Reasonableness calls for the Board, as the central public procurement and asset disposal disputes forum, to give consideration to the arguments and pleadings before it. The Board is to be impartial at all times, and it should not seek to introduce extraneous matters in arriving at its decision.
35. At paragraph 104 of the Board Decision, it is stated that it is not in dispute that the 1st and 2nd Interested Parties conducted a fresh due diligence. This statement is contrary to the central pillar of the Applicant’s complaint in terms of Paragraph 3 of the Applicant’s Request for Review, as read together with paragraph 16(b) and (c)of the Applicant’s Statement in Support of the Request for Review.
36. It is stated expressly by the Applicant that no fresh due diligence was conducted on the Applicant as ordered by the Board.
37. The Board, instead of dealing with the matter before it i.e., due diligence under Section 83 of the Public Procurement and Asset Disposal Act and Regulation 80 thereof, went on a tangent by taking the position of the Evaluation Committee by seeking to reevaluate the tender.
38. The Board was completely unreasonable in considering tender document mandatory requirement No. 14 when, in fact, in its letter of January 22, 2026, the Procuring entity was explicit in its reasons for disqualifying the Applicant; breach of requirement no. 14 of the tender document was not one of the reasons.
39. It is its case that the Board’s decision is unreasonable for failing to address itself to the applicability of the doctrine of nemo judex in causa sua in respect of the Evaluation Committee’s membership drawn from the Procuring Entity sitting on a complaint of breach of contract by the Procuring Entity, for failing to address itself to the applicability of the doctrine of sub judice in respect of the Evaluation Committee’s considering the issue of an alleged breach of contract by the Applicant when the matter is still pending determination before a court of law in Milimani High Court Case No. HCCOMM E632 of 2025. This was notwithstanding the fact that this was pleaded in the proceedings before the Board.
40. The Board’s decision dated 17th February 2026, violates the legitimate expectation of the Applicant and the Applicant invoked the Board’s jurisdiction under Section 167 of the Public Procurement and Asset Disposal Act under a legitimate expectation that, as the central board to hear procurement and asset disposal disputes, the Board would uphold the law.
41. It is its case that the Board failed to live up to this legitimate expectation, as it gave a wide berth to the established legal doctrines of nemo judex in causa sua and sub judice.
42. It argues that the Board’s decision dated 17th February 2026 is unfair in that the Applicant turned to the Board as the central procurement and asset disposal dispute resolution forum to resolve the dispute in PPARB Application No. 14 of 2026 under the expectation that the Board would consider the actions of the Evaluation Committee against the established doctrines of nemo judex in causa sua and sub judice. However, the Board dismissed its case without applying itself to the applicability of the said principles.
43. The Board had the opportunity of remedying the errors on the part of the Procuring Entity with respect to the current tender, but failed to do so while seized with the matter.
44. The Applicant submitted a responsive bid subject to due diligence as confirmed through its receipt of a Notification Letter confirming its bid was responsive to the requirements under the Tender Document.
The Applicant’s Submissions;
45. The Applicant initiated the present Judicial Review proceedings under the Constitution and the Fair Administrative Actions Act, seeking a merit-based review of the decision of the Board in PPARB Application No. 14 of 2026.
46. Reliance is placed in Saisi & 7 others v Director of Public Prosecutions & 2 others (Petition 39 & 40 of 2019 (Consolidated)) [2023] KESC 6 (KLR) (Civ) (27 January 2023), in Dande & 3 others v Inspector General, National Police Service & 5 others (Petition 6 (E007), 4 (E005) & 8 (E010) of 2022 (Consolidated)) [2023] KESC 40 (KLR).
47. On the issue, whether the Evaluation Committee with membership drawn from the Procuring Entity could preside over an allegation by the Procuring Entity against the Applicant without offending the doctrine of nemo judex in causa sua; reliance is placed in The Supreme Court in Popat & 7 others v Capital Markets Authority (Petition 29 of 2019) [2020] KESC 3 (KLR) (11 December 2020) gave an exposition of the applicability of the doctrine of nemo judex in causa sua. In this case, the apex court considered whether the Capital Markets Authority could objectively conduct both investigative and enforcement proceedings against a market participant alleged to have flouted capital market rules.
48. In allowing the appeal, the Court decreed that decision-making bodies must comply with the requirements of impartiality and independence, especially in instances where the bodies have to determine the culpability or otherwise of an individual:
“64. Furthermore, reasonable apprehension of bias is a legal standard for disqualifying judges and administrative decision-makers for bias. As such, the simple question which we require to answer in this case is whether there was or is a real possibility that a reasonable person, properly informed and viewing the circumstances realistically and practically, could conclude that the Respondent might well be prone to bias. If the answer is in the affirmative, that will be a constitutional violation that cannot be overlooked in the name of public interest…
70. Furthermore, from the evidence provided of the processes leading to the issuing of the Notices to Show Cause, the Respondent’s Board that appraised and approved Imperial Bank’s Bond Issue Application, is the same Board that initiated and conducted preliminary investigations into the petitioners’ conduct in relation to the Bond Issue Application and upon satisfying itself that the petitioners may have violated the relevant provisions of the Act and the Regulations made thereunder, made a decision to charge the petitioners and went ahead to formulate the requisite charges. It is this same Board that purported to preside over the hearing of the petitioners’ cases. This would obviously lead to an inescapable appearance of partiality on the Respondent’s part.”
49. It submits that it is not in dispute that the members of the Evaluation Committee were drawn from the Procuring Entity.
50. It is equally not in dispute that in carrying out a fresh due diligence exercise, the Evaluation Committee was to look into an allegation of past breach of a contract made by the Procuring Entity against the Applicant.
51. Section 46(1) of the Public Procurement and Asset Disposal Act provides that the members of an Evaluation Committee are drawn from a Procuring Entity’s members of staff.
52. It submits that the Procuring Entity was constituting itself as a judge over its own complaint against the Applicant. The Procuring Entity is hearing and determining its own complaint of an alleged past breach of contract against the Applicant.
53. It submits that the Procuring Entity failed to observe the requirements of impartiality and independence and thus breached the legal doctrine of nemo judex in causa sua.
54. During the proceedings in PPARB Application No. 14 of 2026, the Applicant brought this breach to the attention of the Board, but the Board disregarded this.
55. The Evaluation Committee with membership drawn from the Procuring Entity could NOT preside over an allegation by the Procuring Entity against the Applicant without offending the doctrine of nemo judex in causa sua.
56. The Court of Appeal in Kiki Investments Ltd & 2 others v Insurance Regulatory Authority (Civil Appeal 381 of 2017) [2024] KECA 1316 (KLR) affirmed that courts (and by extension decision-making bodies) should refrain from considering matters that are pending hearing and determination before a court of competent jurisdiction and involving the same parties and substantially the same dispute.
57. The legal doctrine of sub judice operates as a bar to a multiplicity of cases between the same parties or those claiming through them over the same subject matter to avoid abuse of court processes and diminish the chances of decision-making bodies issuing conflicting decisions over the same subject matter.
58. It submits that in the instant case, the Evaluation Committee invited the Applicant to make responses with respect to a complaint from the Procuring Entity that the Applicant had breached a past contract with it.
59. The Applicant submits that it brought it to the attention of the Committee that the very subject of the alleged breach of contract was disputed and was in fact, pending in the High Court in Nairobi, High Court Case No. HCCOMM/E632/2025 - World Standardization Certification and Testing Group Shenzhen Limited v Kenya Bureau of Standards as between the same parties.
60. It submits that notwithstanding the Applicant’s protest, the Evaluation Committee went ahead to make an adverse finding against the Applicant while disregarding the pending court case.
61. In the proceedings in Nairobi High Court Case No. HCCOMM/E632/2025 - World Standardization Certification and Testing Group Shenzhen Limited v Kenya Bureau of Standards, the parties to the dispute are Applicant herein and the Procuring Entity.
62. The cause of action before the High Court is a claim for breach of contract by the Applicant herein against the Procuring Entity.
63. It submits that a look at the Board’s Decision shows that the Evaluation Committee opted to consider the merits of the Procuring Entity’s complaint of an alleged breach of contract, notwithstanding being aware of the High Court case.
64. It is the Evaluation Committee’s decision on the merits of the complaint that then informed the Procuring Entity’s disqualification from the subject tender.
65. It submits that the sub judice rule applies to any consideration of the merits of matters substantially in issue in ongoing proceedings.
66. Reliance is placed in the Court of Appeal in Republic v Tony Gachoka & another [1999] eKLR penalized an individual for making comments on ongoing court proceedings.
67. It was not open for the Evaluation Committee to open up the merits of the allegations of breach of contract against the Applicant, when the matter remains pending before the High Court.
68. The logical thing would have been to carry out the due diligence on the other references by the Applicant while excluding the reference from the Procuring Entity.
69. The Evaluation Committee’s insistence on considering the merits of the Procuring Entity’s complaint before the High Court case had been concluded was irregular, as it had the effect of prejudicing the proceedings pending in court, something the Committee was warned against through the Applicant’s protest.
70. It submits that in view of the foregoing, the Evaluation Committee with membership drawn from the Procuring Entity could not preside over an allegation of breach of contract by the Procuring Entity against the Applicant when a similar case was pending in Nairobi High Court Case No. HCCOMM/E632/2025 - World Standardization Certification and Testing Group Shenzhen Limited v Kenya Bureau of Standards, without offending the doctrine of sub judice.
71. The Applicant further submits on the issue whether the Board was correct in affirming that it was not in dispute that there was no dispute that the Procuring Entity carried out a fresh due diligence exercise in respect of the subject tender.
72. In its Decision in PPARB Application No. 14 of 2026, the Board contended that it was not in dispute that the Procuring Entity had carried out a fresh due diligence:
“103. The Board notes that it is not in dispute that the Respondents conducted a fresh due diligence exercise. The Applicant acknowledges that the exercise was undertaken and that it culminated in the issuance of a Notification Letter dated 22nd January 2026 informing it that it had been found unsuccessful.”
73. A reading of the above paragraph would give the impression that no dispute existed over the carrying out of a fresh due diligence exercise.
74. It submits that on the contrary, the gist of the Applicant’s case in PPARB Application No. 14 of 2026 was that no fresh due diligence was carried out as directed by the Board.
75. Paragraph 3 of the Request for Review and paragraph 16(b) and (c) of the Statement in support expressed the Applicant’s concern that no fresh due diligence was carried out as directed:
“3. The Respondents have breached this Board’s decision issued on 27th October 2025, in PPARB Application No. 98 of 2025 (hereinafter “the Board Decision) by failing to conduct fresh due diligence on the Applicant, in strict compliance with the provisions of the Tender Document, the Act, the Regulations 2020, the Constitution, while taking into account the findings and observations of the Board in the said Decision.
16. I am advised by the Applicant’s advocate on record, which advice I verily believe to be true that: a…
b. There was no fresh due diligence conducted on the Applicant as ordered by this Board. The Respondents’ motion for extension of time was a red herring to enable the Respondents complete an irregular direct procurement process without the Applicant or the Board’s knowledge.
c. The alleged due diligence conducted on the Applicant was a complete sham as the very matters that this Board expunged from the 2nd Respondent’s due diligence report were used to disqualify the Applicant a second time. The alleged due diligence was done in bad faith, unfairly, lacking in transparency, and in a manner biased against the Applicant with calculated precision not to pre-qualify the Applicant for the following reasons:
i. at pages 1557 to 1585 of the Applicant’s Application in response to the subject pre-qualification, the Applicant in demonstrating experience in providing conformity assessment services, provided eleven (11) similar conformity assessment programs undertaken for a cumulative period of not less than 5 years within the last 10 years accompanied with five (5) recommendation letters from the contracting authorities addressed to the 1st Respondent. One (1) out of the eleven (11) of the similar conformity assessment programs was with the 2nd Respondent.
ii. Our of the eleven (11) similar conformity programs, only the 2nd Respondent alleged breaches of its contracts by the Applicant;
iii. This is clear evidence that the evaluation committee of the 2nd Respondent was not objective while conducting due diligence on the Applicant on the basis that all ten (10) persons whom the Applicant had prior engagement did not return a negative response during due diligence exercise being conducted on the Applicant;
iv. The 1st Respondent seems to have conducted due diligence on the Applicant by obtaining references only from herself as the person whom the Applicant had prior engagement in contravention of the rule of natural justice against bias, that no man/woman shall be a judge in his/her own cause.”
76. The Applicant submits that from the above, it is apparent that in preparing its decision, the Board took an erroneous position in presuming that there was no dispute on the carrying out of a fresh diligence exercise when, in fact, that was the gist of the Applicant’s complaint in PPARB Application No. 14 of 2026.
77. It submits that in view of the above, the Board was not correct in affirming that it was not in dispute that there was no dispute that the Procuring Entity carried out a fresh due diligence exercise in respect of the subject tender.
78. In making its Decision, the Board addressed itself to Mandatory Requirement No. 14 under the Tender Document at paragraph 99 of the Decision and on page 462 of the annexure annexed to the affidavit of Harold Amaya Munala.
79. None of the parties in the proceedings in PPARB Application No. 14 of 2026 addressed the Board on Mandatory Requirement No. 14 under the Tender Document.
80. It is instructive to highlight that the evaluation process in the subject tender was on a sequential basis, with bids first being evaluated for the Mandatory Requirements at the Preliminary Evaluation Stage before being qualified at the Technical Evaluation Stage. It was only after a bidder was responsive to the requirements at the Preliminary and Technical Evaluation Stages that they qualified for being evaluated at the due diligence stage.
81. In the present case, the Evaluation Committee sent the Applicant a Notification Letter indicating that its bid had been established as responsive at the Preliminary and Technical Evaluation Stages.
82. It therefore came as a surprise that in its decision, the Board decided to substitute itself for the Evaluation Committee to re-evaluate the Applicant’s compliance levels with Mandatory Requirement No. 14 at the Preliminary Evaluation Stage.
83. The Board’s sojourn on Mandatory Requirement No. 14 at paragraph 99 of its Decision, when no party had pleaded anything to do with the Applicant’s compliance with the Requirement, exemplifies the Board as giving consideration to extraneous matters.
84. It submits that the law does not suffer that there can exist a legal wrong without a remedy (See Rai & 3 others v Rai & 5 others (Petition 4 of 2012) [2013] KESC 21 (KLR) (20 August 2013) (Ruling).
85. Section 175(3) of the Public Procurement and Asset Disposal Act exists for the very purpose of remedying errors made by the Board, just like in the present case.
86. Indeed, superior courts in our jurisdiction, including the Court of Appeal have on multiple occasions rectified erroneous procurement decisions by directing the award of procurement contracts to deserving bidders and disqualifying the undeserving ones.
87. In Vickers Security Services Limited v Public Procurement Administrative Review Board & 3 others (Civil Appeal E143 & E150 of 2025 (Consolidated)) [2025] KECA 671 (KLR) (11 April 2025) the Court of Appeal set aside the decision of the High Court and directed the award of the procurement contract
[...truncated]
1) …Spent.
2) A temporary injunction does hereby issue, suspending the procurement proceedings in respect of Tender No. KEBS/PRE-Q/T006/2025/2028- Pre-Qualifications for Provision of Pre-Export of Verification of Conformity (PVoC) to Standards Services the Year 2025-2028 pending hearing and determination of the present Application.
3) A Judicial Review order in the nature of Certiorari does hereby issue quashing the Respondent’s decision dated 17th February 2026 in PPARB Application No. 14 of 2026; World Standardization Certification & Testing Group (Shenzhen) Co. Limited v Accounting Officer/ Managing Director, Kenya Bureau of Standards & 10 Others.
4) A Judicial Review order in the nature of Mandamus does hereby issue, compelling the 1st Interested Party to prequalify the Applicant in respect of Tender No. KEBS/PRE-Q/T006/2025/2028- Pre-Qualifications for Provision of Pre-Export Verification of Conformity (PVoC) to Standards Services the Year 2025-2028.
5) A Judicial Review order in the nature of Mandamus does hereby issue, compelling the 1st Interested Party to invite the Applicant together with the other prequalified bidders in respect of Tender No. KEBS/PRE-Q/T006/2025/2028- Pre-Qualifications for Provision of Pre-Export Verification of Conformity (PVoC) to Standards Services the Year 2025-2028, to submit their respective bids.
6) A Judicial Review order in the nature of Prohibition does hereby issue prohibiting the 1st Respondent or any officer under him or acting on his instructions or delegation from executing any contract with bidders in respect of Tender No. KEBS/PRE-Q/T006/2025/2028- Pre-Qualifications for Provision of Pre-Export Verification of Conformity (PVoC) to Standards Services the Year 2025-2028.
7) Costs of the Application.
8) Any such other order that may advance the cause of justice.
The Applicant’s case.
2. It is the Applicant’s case that sometime in 2025, the 1st and 2nd Interested Parties invited interested bidders to submit their bids in response to Tender No. KEBS/PRE-Q/T006/2025/2028- Pre-Qualifications for Provision of Pre-Export Verification of Conformity (PVoC) to Standards Services the Year 2025-2028, hereinafter “the subject tender.”
3. The Applicant tendered its bid, which was subsequently established by the Evaluation Committee as being responsive. It is its case that on or about 24th April 2025, the Applicant received a Notification Letter from the Procuring Entity indicating that its bid had been established as responsive and that it had been prequalified for Zone – 1 China, subject to a successful due diligence.
4. On 23rd September 2025, the Applicant received a letter from the 1st Respondent notifying it that it had not been pre-qualified for the subject pre-qualification for reasons that, despite the Applicant having met the requirements for prequalification, allegedly, it had breached a previous contract with the 2nd Respondent, which observation was noted during a due diligence exercise.
5. The Applicant filed a Request for Review before the Respondent, hereinafter “the Board” in PPARB Application No. 98 of 2025, through which it challenged the manner in which the due diligence exercise was conducted by the Procuring Entity.
6. On 27th October 2025, the board issued a Decision finding that the due diligence exercise was not carried out in accordance with the law, citing that the Applicant was not afforded a hearing before the Procuring Entity took an adverse decision against it.
7. The Procuring Entity unsuccessfully challenged the Board's decision at the High Court in Milimani High Court Case No. HCJRMISC E142 of 2025, wherein the Court upheld the finding of the Board and directed the Procuring Entity to afford the Applicant a hearing in its consideration of the complaint with respect to the alleged breach of a past contract.
8. Via a letter dated 9th January 2026, the Procuring Entity’s Evaluation Committee wrote to the Applicant demanding the Applicant’s response to adverse materials relating to performance of a previous contract, the same adverse material the Evaluation Committee had used as a basis for disqualifying the Applicant, and which material the Board had expunged from the Respondents’ due diligence report.
9. It is its case that the same adverse material is also the subject of a pending Court case in Nairobi High Court Case No. HCCOMM/E632/2025 - World Standardization Certification and Testing Group Shenzhen Limited v Kenya Bureau of Standards in which the Applicant has challenged the 2ndRespondent’s termination of contract based on the same offending material. By a letter dated January 15, 2026, the Applicant responded to the Evaluation Committee’s letter of 9th January 2026.
10. The Evaluation Committee’s letter was in flagrant breach of the Board Decision of 27th October 2025 and the law.
11. The same allegations had been made by the Procuring Entity in its letter of 14th July 2025 and had been addressed by the Applicant vide its letters of 29th July 2025 and 12th August 2025. The Procuring Entity has never acknowledged and/or addressed the Applicant’s response.
12. It is also its case that the adverse material was the subject of a pending Court case, and none of the other parties had been subjected to this criterion during due diligence phase.
13. It further argues that the adverse material related to a previous contract that had nothing to do with the present pre-qualification.
14. Lastly it argues that there was open bias as none of the other bidders had been subjected to this due diligence.
15. According to the Applicant, the Evaluation Committee’s deliberation of the issues of the alleged breach would prejudice the Applicant and embarrass the proceedings in the pending case.
16. The Applicant also took issue with the Procuring Entity’s Evaluation Committee sitting to establish the merits of the allegations by the Procuring Entity, citing the absence of independence as the Procuring Entity would essentially be sitting as a judge in its own cause.
17. The Applicant is further aggrieved that the Evaluation Committee disregarded the representations and objections, with the result that the Procuring Entity went ahead to disqualify it at the due diligence stage on account of its own allegations of breach of a past contract.
18. The Applicant filed a Request for Review before the Board in PPARB Application No. 14 of 2026, taking issue with the manner in which the due diligence exercise was carried out.
19. The Applicant argued that it apprised the Board of its responses to the Evaluation Committee and the objections on account of the pending court case in Milimani High Court Case No. HCCOMM E632 of 2025; World Standardization Certification & Testing Group (Shenzhen) Limited v Kenya Bureau of Standards, as well as the apparent lack of objectivity for the Evaluation Committee to preside over a complaint by a Procuring Entity from which its membership was drawn.
20. On 17th February 2026, the Board dismissed the Applicant’s Request for Review and directed the Accounting Officer to conclude the prequalification exercise, while excluding the Applicant’s bid.
21. The Applicant submits that the Board’s decision dated 17th February 2026 was materially influenced by an error of law in that The Board’s decision gives a wide berth to the established doctrines of nemo judex in causa sua and sub judice.
22. The Applicant first challenged its disqualification from the procurement proceedings in Tender No. KEBS/PRE-Q/T006/2025/2028- Pre-Qualifications for Provision of Pre-Export Verification of Conformity (PVoC) to Standards Services the Year 2025-2028, herein “the subject tender” through PPARB Application No. 98 of 2025. The Applicant had previously received a Notification that it had been prequalified, only to be subsequently disqualified at the due diligence stage, on a complaint of an alleged breach of contract with the Procuring Entity.
23. The said breach was at the time and still remains the subject of litigation at the High Court in Milimani High Court Case No. HCCOMM E632 of 2025; World Standardization Certification & Testing Group (Shenzhen) Limited v Kenya Bureau of Standards.
24. The Applicant argues that the Board considered PPARB Application No. 98 of 2025 and correctly found that the Evaluation Committee fell into grave error when it purported to disqualify the Applicant’s bid at the due diligence stage without affording it an opportunity to be heard on the complaint made against it. This decision was affirmed by this Court in Milimani High Court Case No. HCJRMISC E142 of 2025.
25. Consequently, the Evaluation Committee invited the Applicants to make representations in respect of the complaints of breach of contract made against it by the Procuring Entity. The Applicant offered its representations, including apprising the Evaluation Committee of the existence of court proceedings in Milimani High Court Case No. HCCOMM E632 of 2025, where the very questions of the alleged breach were pending determination.
26. The Applicant argues that it notified the Evaluation Committee that it would go against natural justice for it, as a Committee with membership drawn from within the Procuring Entity, to preside over a complaint made by the Procuring Entity, as this would be akin to a judge sitting on their own cause.
27. It argues that further, the criterion of past performance was not applied to other bidders during due diligence. The Applicant is troubled that notwithstanding the Applicant’s representations, the Evaluation Committee went ahead to recommend the disqualification of the Applicant’s bid, prompting the Applicant to file the proceedings in PPARB Application No. 14 of 2026.
28. The Applicant is aggrieved since, the Board still went ahead to affirm the Evaluation Committee’s decision to make a conclusion on the basis of an undetermined case at the High Court, as well as to sit on a matter where the Committee was technically speaking the complainant and the judge at the same time.
29. The Applicant argues that the Board, through its decision, sanctioned the departure from the established legal doctrines of nemo judex in causa sua and sub judice, without any justification whatsoever.
30. It is its case that the Board’s decision dated 17th February 2026, is not rationally connected to the purpose for which it was taken, the purpose of the empowering provision and the information before it.
31. Article 227 of the Constitution of Kenya, 2010 decrees that all public procurement processes should be undertaken under a system that is fair, equitable, transparent, competitive, and cost-effective.
32. Consequently, Sections 27 and 28 of the Public Procurement and Asset Disposal Act (Cap 412 C) establish the Board as a central board to hear and determine public procurement and asset disposal disputes. Further, Section 173 empowers the Board to take appropriate remedial action against decisions by Procuring Entities that offend the law.
33. In the present case, the Board considered PPARB Application 14 of 2026, proceedings in which it was apparent that the Procuring Entity had arrived at a decision to disqualify a bidder after a due diligence process that offends the law i.e. the legal doctrines of nemo judex in causa sua and sub judice. However, the Board shirked from its statutory role by dismissing the Request for Review and overlooking the apparent breaches of the law.
34. The Board’s decision dated 17th February 2026 was unreasonable in the circumstances. Reasonableness calls for the Board, as the central public procurement and asset disposal disputes forum, to give consideration to the arguments and pleadings before it. The Board is to be impartial at all times, and it should not seek to introduce extraneous matters in arriving at its decision.
35. At paragraph 104 of the Board Decision, it is stated that it is not in dispute that the 1st and 2nd Interested Parties conducted a fresh due diligence. This statement is contrary to the central pillar of the Applicant’s complaint in terms of Paragraph 3 of the Applicant’s Request for Review, as read together with paragraph 16(b) and (c)of the Applicant’s Statement in Support of the Request for Review.
36. It is stated expressly by the Applicant that no fresh due diligence was conducted on the Applicant as ordered by the Board.
37. The Board, instead of dealing with the matter before it i.e., due diligence under Section 83 of the Public Procurement and Asset Disposal Act and Regulation 80 thereof, went on a tangent by taking the position of the Evaluation Committee by seeking to reevaluate the tender.
38. The Board was completely unreasonable in considering tender document mandatory requirement No. 14 when, in fact, in its letter of January 22, 2026, the Procuring entity was explicit in its reasons for disqualifying the Applicant; breach of requirement no. 14 of the tender document was not one of the reasons.
39. It is its case that the Board’s decision is unreasonable for failing to address itself to the applicability of the doctrine of nemo judex in causa sua in respect of the Evaluation Committee’s membership drawn from the Procuring Entity sitting on a complaint of breach of contract by the Procuring Entity, for failing to address itself to the applicability of the doctrine of sub judice in respect of the Evaluation Committee’s considering the issue of an alleged breach of contract by the Applicant when the matter is still pending determination before a court of law in Milimani High Court Case No. HCCOMM E632 of 2025. This was notwithstanding the fact that this was pleaded in the proceedings before the Board.
40. The Board’s decision dated 17th February 2026, violates the legitimate expectation of the Applicant and the Applicant invoked the Board’s jurisdiction under Section 167 of the Public Procurement and Asset Disposal Act under a legitimate expectation that, as the central board to hear procurement and asset disposal disputes, the Board would uphold the law.
41. It is its case that the Board failed to live up to this legitimate expectation, as it gave a wide berth to the established legal doctrines of nemo judex in causa sua and sub judice.
42. It argues that the Board’s decision dated 17th February 2026 is unfair in that the Applicant turned to the Board as the central procurement and asset disposal dispute resolution forum to resolve the dispute in PPARB Application No. 14 of 2026 under the expectation that the Board would consider the actions of the Evaluation Committee against the established doctrines of nemo judex in causa sua and sub judice. However, the Board dismissed its case without applying itself to the applicability of the said principles.
43. The Board had the opportunity of remedying the errors on the part of the Procuring Entity with respect to the current tender, but failed to do so while seized with the matter.
44. The Applicant submitted a responsive bid subject to due diligence as confirmed through its receipt of a Notification Letter confirming its bid was responsive to the requirements under the Tender Document.
The Applicant’s Submissions;
45. The Applicant initiated the present Judicial Review proceedings under the Constitution and the Fair Administrative Actions Act, seeking a merit-based review of the decision of the Board in PPARB Application No. 14 of 2026.
46. Reliance is placed in Saisi & 7 others v Director of Public Prosecutions & 2 others (Petition 39 & 40 of 2019 (Consolidated)) [2023] KESC 6 (KLR) (Civ) (27 January 2023), in Dande & 3 others v Inspector General, National Police Service & 5 others (Petition 6 (E007), 4 (E005) & 8 (E010) of 2022 (Consolidated)) [2023] KESC 40 (KLR).
47. On the issue, whether the Evaluation Committee with membership drawn from the Procuring Entity could preside over an allegation by the Procuring Entity against the Applicant without offending the doctrine of nemo judex in causa sua; reliance is placed in The Supreme Court in Popat & 7 others v Capital Markets Authority (Petition 29 of 2019) [2020] KESC 3 (KLR) (11 December 2020) gave an exposition of the applicability of the doctrine of nemo judex in causa sua. In this case, the apex court considered whether the Capital Markets Authority could objectively conduct both investigative and enforcement proceedings against a market participant alleged to have flouted capital market rules.
48. In allowing the appeal, the Court decreed that decision-making bodies must comply with the requirements of impartiality and independence, especially in instances where the bodies have to determine the culpability or otherwise of an individual:
“64. Furthermore, reasonable apprehension of bias is a legal standard for disqualifying judges and administrative decision-makers for bias. As such, the simple question which we require to answer in this case is whether there was or is a real possibility that a reasonable person, properly informed and viewing the circumstances realistically and practically, could conclude that the Respondent might well be prone to bias. If the answer is in the affirmative, that will be a constitutional violation that cannot be overlooked in the name of public interest…
70. Furthermore, from the evidence provided of the processes leading to the issuing of the Notices to Show Cause, the Respondent’s Board that appraised and approved Imperial Bank’s Bond Issue Application, is the same Board that initiated and conducted preliminary investigations into the petitioners’ conduct in relation to the Bond Issue Application and upon satisfying itself that the petitioners may have violated the relevant provisions of the Act and the Regulations made thereunder, made a decision to charge the petitioners and went ahead to formulate the requisite charges. It is this same Board that purported to preside over the hearing of the petitioners’ cases. This would obviously lead to an inescapable appearance of partiality on the Respondent’s part.”
49. It submits that it is not in dispute that the members of the Evaluation Committee were drawn from the Procuring Entity.
50. It is equally not in dispute that in carrying out a fresh due diligence exercise, the Evaluation Committee was to look into an allegation of past breach of a contract made by the Procuring Entity against the Applicant.
51. Section 46(1) of the Public Procurement and Asset Disposal Act provides that the members of an Evaluation Committee are drawn from a Procuring Entity’s members of staff.
52. It submits that the Procuring Entity was constituting itself as a judge over its own complaint against the Applicant. The Procuring Entity is hearing and determining its own complaint of an alleged past breach of contract against the Applicant.
53. It submits that the Procuring Entity failed to observe the requirements of impartiality and independence and thus breached the legal doctrine of nemo judex in causa sua.
54. During the proceedings in PPARB Application No. 14 of 2026, the Applicant brought this breach to the attention of the Board, but the Board disregarded this.
55. The Evaluation Committee with membership drawn from the Procuring Entity could NOT preside over an allegation by the Procuring Entity against the Applicant without offending the doctrine of nemo judex in causa sua.
56. The Court of Appeal in Kiki Investments Ltd & 2 others v Insurance Regulatory Authority (Civil Appeal 381 of 2017) [2024] KECA 1316 (KLR) affirmed that courts (and by extension decision-making bodies) should refrain from considering matters that are pending hearing and determination before a court of competent jurisdiction and involving the same parties and substantially the same dispute.
57. The legal doctrine of sub judice operates as a bar to a multiplicity of cases between the same parties or those claiming through them over the same subject matter to avoid abuse of court processes and diminish the chances of decision-making bodies issuing conflicting decisions over the same subject matter.
58. It submits that in the instant case, the Evaluation Committee invited the Applicant to make responses with respect to a complaint from the Procuring Entity that the Applicant had breached a past contract with it.
59. The Applicant submits that it brought it to the attention of the Committee that the very subject of the alleged breach of contract was disputed and was in fact, pending in the High Court in Nairobi, High Court Case No. HCCOMM/E632/2025 - World Standardization Certification and Testing Group Shenzhen Limited v Kenya Bureau of Standards as between the same parties.
60. It submits that notwithstanding the Applicant’s protest, the Evaluation Committee went ahead to make an adverse finding against the Applicant while disregarding the pending court case.
61. In the proceedings in Nairobi High Court Case No. HCCOMM/E632/2025 - World Standardization Certification and Testing Group Shenzhen Limited v Kenya Bureau of Standards, the parties to the dispute are Applicant herein and the Procuring Entity.
62. The cause of action before the High Court is a claim for breach of contract by the Applicant herein against the Procuring Entity.
63. It submits that a look at the Board’s Decision shows that the Evaluation Committee opted to consider the merits of the Procuring Entity’s complaint of an alleged breach of contract, notwithstanding being aware of the High Court case.
64. It is the Evaluation Committee’s decision on the merits of the complaint that then informed the Procuring Entity’s disqualification from the subject tender.
65. It submits that the sub judice rule applies to any consideration of the merits of matters substantially in issue in ongoing proceedings.
66. Reliance is placed in the Court of Appeal in Republic v Tony Gachoka & another [1999] eKLR penalized an individual for making comments on ongoing court proceedings.
67. It was not open for the Evaluation Committee to open up the merits of the allegations of breach of contract against the Applicant, when the matter remains pending before the High Court.
68. The logical thing would have been to carry out the due diligence on the other references by the Applicant while excluding the reference from the Procuring Entity.
69. The Evaluation Committee’s insistence on considering the merits of the Procuring Entity’s complaint before the High Court case had been concluded was irregular, as it had the effect of prejudicing the proceedings pending in court, something the Committee was warned against through the Applicant’s protest.
70. It submits that in view of the foregoing, the Evaluation Committee with membership drawn from the Procuring Entity could not preside over an allegation of breach of contract by the Procuring Entity against the Applicant when a similar case was pending in Nairobi High Court Case No. HCCOMM/E632/2025 - World Standardization Certification and Testing Group Shenzhen Limited v Kenya Bureau of Standards, without offending the doctrine of sub judice.
71. The Applicant further submits on the issue whether the Board was correct in affirming that it was not in dispute that there was no dispute that the Procuring Entity carried out a fresh due diligence exercise in respect of the subject tender.
72. In its Decision in PPARB Application No. 14 of 2026, the Board contended that it was not in dispute that the Procuring Entity had carried out a fresh due diligence:
“103. The Board notes that it is not in dispute that the Respondents conducted a fresh due diligence exercise. The Applicant acknowledges that the exercise was undertaken and that it culminated in the issuance of a Notification Letter dated 22nd January 2026 informing it that it had been found unsuccessful.”
73. A reading of the above paragraph would give the impression that no dispute existed over the carrying out of a fresh due diligence exercise.
74. It submits that on the contrary, the gist of the Applicant’s case in PPARB Application No. 14 of 2026 was that no fresh due diligence was carried out as directed by the Board.
75. Paragraph 3 of the Request for Review and paragraph 16(b) and (c) of the Statement in support expressed the Applicant’s concern that no fresh due diligence was carried out as directed:
“3. The Respondents have breached this Board’s decision issued on 27th October 2025, in PPARB Application No. 98 of 2025 (hereinafter “the Board Decision) by failing to conduct fresh due diligence on the Applicant, in strict compliance with the provisions of the Tender Document, the Act, the Regulations 2020, the Constitution, while taking into account the findings and observations of the Board in the said Decision.
16. I am advised by the Applicant’s advocate on record, which advice I verily believe to be true that: a…
b. There was no fresh due diligence conducted on the Applicant as ordered by this Board. The Respondents’ motion for extension of time was a red herring to enable the Respondents complete an irregular direct procurement process without the Applicant or the Board’s knowledge.
c. The alleged due diligence conducted on the Applicant was a complete sham as the very matters that this Board expunged from the 2nd Respondent’s due diligence report were used to disqualify the Applicant a second time. The alleged due diligence was done in bad faith, unfairly, lacking in transparency, and in a manner biased against the Applicant with calculated precision not to pre-qualify the Applicant for the following reasons:
i. at pages 1557 to 1585 of the Applicant’s Application in response to the subject pre-qualification, the Applicant in demonstrating experience in providing conformity assessment services, provided eleven (11) similar conformity assessment programs undertaken for a cumulative period of not less than 5 years within the last 10 years accompanied with five (5) recommendation letters from the contracting authorities addressed to the 1st Respondent. One (1) out of the eleven (11) of the similar conformity assessment programs was with the 2nd Respondent.
ii. Our of the eleven (11) similar conformity programs, only the 2nd Respondent alleged breaches of its contracts by the Applicant;
iii. This is clear evidence that the evaluation committee of the 2nd Respondent was not objective while conducting due diligence on the Applicant on the basis that all ten (10) persons whom the Applicant had prior engagement did not return a negative response during due diligence exercise being conducted on the Applicant;
iv. The 1st Respondent seems to have conducted due diligence on the Applicant by obtaining references only from herself as the person whom the Applicant had prior engagement in contravention of the rule of natural justice against bias, that no man/woman shall be a judge in his/her own cause.”
76. The Applicant submits that from the above, it is apparent that in preparing its decision, the Board took an erroneous position in presuming that there was no dispute on the carrying out of a fresh diligence exercise when, in fact, that was the gist of the Applicant’s complaint in PPARB Application No. 14 of 2026.
77. It submits that in view of the above, the Board was not correct in affirming that it was not in dispute that there was no dispute that the Procuring Entity carried out a fresh due diligence exercise in respect of the subject tender.
78. In making its Decision, the Board addressed itself to Mandatory Requirement No. 14 under the Tender Document at paragraph 99 of the Decision and on page 462 of the annexure annexed to the affidavit of Harold Amaya Munala.
79. None of the parties in the proceedings in PPARB Application No. 14 of 2026 addressed the Board on Mandatory Requirement No. 14 under the Tender Document.
80. It is instructive to highlight that the evaluation process in the subject tender was on a sequential basis, with bids first being evaluated for the Mandatory Requirements at the Preliminary Evaluation Stage before being qualified at the Technical Evaluation Stage. It was only after a bidder was responsive to the requirements at the Preliminary and Technical Evaluation Stages that they qualified for being evaluated at the due diligence stage.
81. In the present case, the Evaluation Committee sent the Applicant a Notification Letter indicating that its bid had been established as responsive at the Preliminary and Technical Evaluation Stages.
82. It therefore came as a surprise that in its decision, the Board decided to substitute itself for the Evaluation Committee to re-evaluate the Applicant’s compliance levels with Mandatory Requirement No. 14 at the Preliminary Evaluation Stage.
83. The Board’s sojourn on Mandatory Requirement No. 14 at paragraph 99 of its Decision, when no party had pleaded anything to do with the Applicant’s compliance with the Requirement, exemplifies the Board as giving consideration to extraneous matters.
84. It submits that the law does not suffer that there can exist a legal wrong without a remedy (See Rai & 3 others v Rai & 5 others (Petition 4 of 2012) [2013] KESC 21 (KLR) (20 August 2013) (Ruling).
85. Section 175(3) of the Public Procurement and Asset Disposal Act exists for the very purpose of remedying errors made by the Board, just like in the present case.
86. Indeed, superior courts in our jurisdiction, including the Court of Appeal have on multiple occasions rectified erroneous procurement decisions by directing the award of procurement contracts to deserving bidders and disqualifying the undeserving ones.
87. In Vickers Security Services Limited v Public Procurement Administrative Review Board & 3 others (Civil Appeal E143 & E150 of 2025 (Consolidated)) [2025] KECA 671 (KLR) (11 April 2025) the Court of Appeal set aside the decision of the High Court and directed the award of the procurement contract
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