M/S Master Power Systems Limited v Public Procurement Administrative Review Board, M/S Central Electricals International Limited &Glama; Electrical & Mechanical Company Limited [2015] KEHC 7698 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

CIVIL   APPEAL NO.  45   OF 2015

M/S MASTER POWER SYSTEMS LIMITED……….APPELLANT

VERSUS

PUBLIC PROCUREMENT ADMINISTRATIVE REVIEW BOARD………………………..1ST RESPONDENT

M/S CENTRAL ELECTRICALS INTERNATIONAL

LIMITED…………………….2ND RESPONDENT

GLAMA ELECTRICAL &MECHANICAL COMPANY

LIMITED…………………..3RD RESPONDENT

RULING

This ruling determines two applications on record. The first  application is dated  10th March 2015  filed by the 2nd  respondent Tourism Fund, seeking to strike out  the appeal  herein as filed  by M/S  Power  Systems  Limited  for want of  jurisdiction of this court.  The other application is dated 20th March 2015 filed by the appellant seeking stay of enforcement of the decision of the Public Procurement Administrative Review Board (PPARB). The two applications were heard together by way of oral arguments following this court’s directions given on 4th May 2015 with the agreement f all parties’ advocates on record.

In support of the application dated 10th March 2015, the applicant's counsel Mr Omwebu relied on the grounds on the face of the application and the supporting affidavit of Allan Chenane and three decided authorities.

Mr Omwebu submitted that  the  Memorandum of Appeal  and the entire record  of appeal should  be struck out as the  appeal  offends  Section 100 (1) (2) and (4) of the Public Procurement  and Disposal  Act, 2005.  Mr Omwebu contended  that the  appellant should have  challenged  the decision  of the Public  Procurement  Administrative Review  Board by way  of Judicial Review  not by way of an appeal hence the appeal is incompetent  as it seeks to challenge  the process and not the  merits of the 1st respondent’s  decision as borne out of the Memorandum  of Appeal.

Mr Omwebu  relied on the case of Riley Services Ltd  vs The Judiciary  whose facts were  similar  to this matter and submitted that the  appellant  should have  approached  the court  under Order  53 of the Civil Procedure Rules.

Mr Omwebu was emphatic  that this  court has no jurisdiction to hear and  determine  this appeal  or other  application predicated on the appeal  arising  from the decision of Public Procurement Administrative Review  Board since the appeal is incompetent and that  a court can only exercise  jurisdiction  conferred  by law as  was held in Samuel Kamau  Macharia  & another vs KCB and  2 Others  and the case  of Owners of  the Motor Vessel “ Lillians” vs  Caltex  Oil (K) Ltd.  He therefore urged the court to allow the application and strike out the appeal.

In urging the application dated 20th March 2015, Mr Gichamba advocate   for the appellant also responded to the 2nd respondent’s application urging the latter application to be dismissed with costs.  He submitted that Section 100 of the Public Procurement and Disposal Act, 2005 provides for the two clear ways of approaching this court.  Under Section 100(1), it was submitted that Judicial Review  can be applied for  challenging the  process adopted by the Public Procurement Administrative Review  Board whereas  under Section 100(2) of the  Act,  an appeal to the High  court  lies, and that the decision of the  High Court  is final where a party chooses to file an appeal. Mr Gichamba relied on the grounds of objection and supplementary affidavit urging this court to disregard the preliminary objection grounded on jurisdiction. He relied on the cases of R vs Public Procurement Administrative Review  Board  and Another  Exparte Selex  Sistemi Integrah (2008) e KLR  wherein the issue of  jurisdiction of the High court to  hear an appeal challenging  the decision of Public Procurement Administrative Review  Board  was considered.

Mr Gichamba maintained that  the ordinary jurisdiction of the  High court  to hear appeals  from tribunals  and other judicial  and quasi –judicial bodies is preserved by Section 100(2) of the Public Procurement  and Disposal  Act, 2005, conferring  on an aggrieved  party  the right of  appeal.

Mr Gichamba submitted that the decision in Riley v Judiciary was made per incuriam.  He  relied on Regina v Montilla & Others (2003) UKHC to propose  that heading  and side  notes to Section 100  of the Public Procurement  and Disposal  Act,2005 can be considered  in construing  a provision  of an Act of Parliament.  In that case, it was observed.

“The question then is whether headings and side notes, although unamendable, can be considered in construing a provision on an Act of parliament.  Account must off course; be taken of the face that these components were included in the Bill not for debate but for ease of reference.  This indicates that less weight can be attached to  them than to the parts  of the Act that  are open for consideration  and debate  in parliament ….”

In Mr Gichamba view, the Riley Services Ltd case referred to marginal notes which only serve as guidelines but not meant to change the meaning of the statute.

Miss Chilaka  appearing  for the 1st respondent  Public Procurement Administrative Review  Board submitted that  the Public Procurement  and Disposal  Act gives  the High Court  jurisdiction to hear an appeal  arising  from the decision of the 1st respondent Review Board  but that the aggrieved party  can elect  to either  file an appeal  or come to this court by way of Judicial Review.  She submitted that the 1st respondent will not be affected by any orders that this court may issue staying or not staying orders of the 1st respondent.

Mr Okatch  representing the 3rd respondent relied on the replying affidavit  sworn by Karim Meghji the Managing  Director of the 3rd  respondent and submitted that   the issue  of process   can only be brought  before the  court by  way of Judicial Review.  Mr Okatch associated himself  with  the submissions  by Mr Omwebu   for the 2nd respondent /applicant  on the issue of jurisdiction of this  court to hear and determine  an appeal emanating from  the decision of the Public Procurement Administrative Review  Board  and contended  that what  the appellants  are challenging is process not merits  of the decision  of the 1st  respondent  and that as matters  stand now, the impugned  contract  has already been executed  and works have  been expended  as shown by Annexure KM1 hence there is nothing to be challenged .  He maintained  that the Riley  Services Ltd  vs Judiciary case  was  relevant  to this case as the  court  rendered  itself on the issue of the role of marginal notes  and that  in the R vs Public Procurement Administrative Review  Board case cited by Mr Gichamba, the  court was faced with a provision that  could be interpreted in two ways.  Further, it was submitted that in interpreting statutes, the provisions must be read as a whole and put in the context.  According to Mr Okatch, isolating provisions of the stature leads to misconstruction.

Mr Okatch further submitted that Public Procurement processes  have elements  of time  hinged on any deliberations after  a decision by the 1st respondent and that  Section 100(4) talks of  Judicial Review  and the time within which  it must be  determined,  same  as Section 100(1).

Mr Kagucho counsel for the 4th respondent also joined  in the fray to support  the  competency of this appeal and associated himself  with the  submissions  by the appellant’s counsel and relied  on the replying  affidavit if Daniel Mbiyu Nganga.  He submitted  that the  Public Procurement Administrative Review Board -1st respondent  did not deal with issues of  merit  which were addressed  by  parties  and that this court is the  right forum to address those issues  of merit.  He also submitted  that there are two schools of thought  concerning Section 100 of the Public Procurement  and Disposal  Act- the  proponents for Judicial Review  and proponents  for appeal and  that since  the Riley Services Ltd  case is not binding on this court, the court should determine that issue independently of what the law is, applying the authorities  supplied. That since the appeal challenges  both process  and merits, this is the right court  to deal with  any  challenge  to the decision  of the 1st defendant, since Judicial Review  only deals  with process.  Counsel further  submitted that  under Section 99 of  the  Public Procurement  and Disposal  Act,2005, parties have a choice  to go to  other institutions and the  High Court  is the best  alternative  since its  jurisdiction  is unlimited  as  provided  for in  the Constitution.  He urged the court to dismiss the preliminary objection o jurisdiction and allow the case to go to full trial.

In response  to the various  submissions  on the issue of jurisdiction of  this  court, Mr Omwebu submitted that  the Riley Services  Ltd case  applied other decisions with  approval hence it  cannot be  a per incuriam decision.  Further, that the Kenya Pipelinecase  is distinguishable since there was  no question of interpretation  of Section 100 of  Public Procurement  and Disposal  Act,2005 as it was  an appeal from a Judicial Review  matter in the High court, relating  to procurement and that the Court of Appeal did not answer  the question posed  in this appeal. Mr Omwebu further submitted that the Court of Appeal decision in the Kenya Pipeline case does not support the two roots of challenging the Review Board’s decision.

In a rejoinder, Mr Gichamba maintained that Judicial Review does not deal with merits and that only an appeal can dispose of the issues of merits of the decision of the Review Board.

The application dated 20th March 2015 seeks for stay of enforcement of the decision of the 1st respondent herein Public Procurement Administrative Review Board pending hearing and determination of this appeal.  The applicant/appellant M/S Master Power Systems Ltd relies on the 6 grounds on the face of the said application contending that it participated in the tender No.  TF/05/2014 -2015 for the supply, delivery, installation, testing and commissioning of electrical and associated works installations as the proposed Ronald Ngala, Utalii College–Kilifi County. That a  review was lodged  against  the 1st respondent with the applicant  being enjoined  as the 2nd interested  party and  its decision delivered on 29th January 2015; That the applicant was aggrieved by the said decision of the Public Procurement Administrative Review Board and lodged  this appeal pursuant  to Section 100(2)  of the Public Procurement  and Disposal  Act,2005; That the 2nd/main contractor on site may proceed with execution and implementation of the contract with  the 3rd respondent which contract  with the 3rd respondent  is subject  matter of  this appeal; That the 3rd respondent has already  moved  on site and has commenced  electrical works  with an intention to  render the appeal nugatory.

Finally, that if the orders sought herein are denied then the rather meritorious appeal will be rendered nugatory, an illegality will occur and the course of justice will be defeated.

The applicant/appellant’s application was also supported by the affidavit of Mukesh Hurani sworn on 20th March 2015 reiterating the grounds above.

The appellant maintains that  it  bid  for the tender  for the supply, delivery, installation, testing and commissioning of Electrical and Associated Works  Installation at the proposed  site and  was notified  by  2nd respondent that it had been prequalified  as a supplier  and it did  submit quotations as expected.

Further, that it passed and emerged  as the most responsive  bidder   as per  Evaluation  Committees Report  dated 31st October  2014 annexed  whereas  the 3rd respondent Central Electrical Internationals Limited  who won the tender  had been found to be technically non responsive  and therefore  disqualified from further  evaluation.

It is  deposed that for unclear reasons  the 2nd respondent Tourism Fund conducted  an illegal and unwarranted  second  evaluation and produced an attached  report dated  27th November 2014  revising the scores  upwards  in favour of the third respondent without  giving any explanations.  Further, it is contended by the appellant that the scores for the rest of the bidders remained constant while the  2nd respondent  marked  certain  requirements which  had earlier been found missing to  be present  thereby recommending  for approval the 3rd respondent.

The appellant further contends that the  4th respondent  was dissatisfied  with that  decision to award the 3rd  respondent  the tender  and filed for  review  to the 1st respondent  wherein the appellant  was enjoined as an  interested party and in its decision  dated 29th January 2015, the 1st respondent  dismissed the application for  review and directed  the 2nd  respondent to proceed with the  procurement process  to its logical conclusion, hence this  appeal challenging  that decision  of the  1st respondent.

The appellant  was apprehensive  that this appeal  will be  rendered  nugatory  unless the stay is  granted since the 2nd respondent had  started implementing  the directives  of the 1st respondent and  was about  to conclude  the contract  with the  3rd respondent who was already onsite, thereby prejudicing  the orders  being sought  in this appeal. The appellant also filed supplementary affidavit sworn on 30th April, 2014 by Mukesh Hurani reiterating its depositions in the earlier affidavit in support of the application for stay and maintaining that the application was made timeously and that the appeal stands to be nugatory unless stay is granted. The appellant urged the court to grant the orders sought as the application had been made without inordinate delay.

The application dated 20th March 2015  was opposed by the 1st, 2nd and 3rd  respondents  whereas  the 4th  respondents  concurred  with the appellant  that indeed  there should be  stay as there was no equity  in awarding  the tender to the 3rd respondent. It filed a replying affidavit through David Mbiyu Ngang’a (undated)reiterating the background information provided by the appellant and stating that the 4th respondent also bid for the material tender and emerged the second best although it was the lowest bidder and urging this court to stay execution as there are real issues to be determined in this appeal and that the appeal shall be rendered nugatory unless stay is granted. The 4th respondent’s interest in the matter is that in any event, should this court find the appeal meritorious, it should award the tender to the 4th respondent.

The 1st respondent did not file any grounds of opposition or replying affidavit. The 3rd respondents filed replying affidavit sworn by Karim Meghji its  Managing Director, on 17th  April 2015  contending that the  appellant’s application lacks  merit.  Mr Meghji deposed that  the application  for stay was overtaken by events  as the 2nd defendant had already  executed  a contract  with the 3rd  respondent, which contact  was already in the process  of  being  implemented.  In addition, it was  deposed that the appellant  was guilty of laches as it had filed  an appeal after  14 days  from 29th January 2015 when the 1st  respondent rendered  its  decision and another 8 weeks  before filing the application for stay of  that  ruling knowing very well that  the signed  contract  was being  implemented  hence the  orders  being  sought are malicious.

The 3rd  respondents  also contended that the appellant was not even a  substantive  party to the proceedings  before the Review Board  and that  its  intentions is to delay  the  process and or scuttle  the whole process  to enable  it have another  shot at  the tender.

The 3rd respondent  further contended  that  the applicant has not shown any loss or  damage  that it was likely to suffer as a result of  refusal  to grant stay since  even  the appeal has no chances of  success.

The 3rd respondent maintained  that it was  the successful bidder   for the subject  tender  process  which  is only  a part of  the bigger  project  which was  underway hence  the interruption of the contract will  have a ripple  crippling  negative  effect  to the many others  which are part  of the 2030 flagship projects  hence the balance  of convenience  does not tilt  in  favour  of the appellant since the 3rd respondent  had already  applied  massive resources  on the project  and finally, that the appellant  could only have  challenged the  decision  of the Public Procurement Administrative Review  Board  by way of Judicial  Review  and not by way of an  appeal.

I have carefully considered all the arguments on record for and against the two applications.

As earlier indicated, there are two main issues for determination in this application. The first issue is a preliminary objection to the entire appeal on the ground that it does not lie from the decision of the 1st Respondent.  The second issue is whether this court should stay execution of the contracts already signed between the procuring entity 2nd respondent and the 3rd Respondent.

On the first issue, the 2nd respondent and other parties that support it contend that the appeal is incompetent and that the court has no jurisdiction to hear an appeal arising from the decision of the PPARB. In addition, the opponents of this appeal contend that the appellant should, instead, have filed judicial review proceedings as contemplated in section 100 of the Public Procurement and Disposal Act, 2005. The appellant and its supporters contend that the appeal is properly before this court since it challenges the decision of the Public Procurement Administrative Review Board on the merits and not necessarily of the process which would have been in the premise of the judicial review proceedings. That Judicial Review only concerned with decision making process and procedure not merits of decision.

I have carefully considered the preliminary objection and the counsels’ comprehensive submissions in line with the documentation on record and in my view the only question for determination on issue number one is whether in the circumstances of this matter the preliminary objection should be allowed.

The essence of a preliminary objection was given by Law, JA and Sir Charles Newbold P. in MUKISA BISCUITS MANUFACTURING CO LTD VS WEST END DISTRIBUTORS(1969) EA 696. At page 700, Law, JA stated that:

“…a ‘preliminary objection’ consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”

Sir Charles Newbold P. added as follows at page 701:

“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”

This court is also alive to the established law that the power to strike out a pleading or suit is one that a court should exercise sparingly and cautiously, as the same is exercised without the court being fully informed on the merits of the case, unless the case is so hopeless that no amount of amendment can inject life in it. In the case of DT Dobie & Company (K) Ltd Vs Muchina (1982) KLR 1 page 9 Madam J Aheld:

“Thecourt ought to act very cautiously and carefully and consider all facts of the case without embarking upon a trial thereof before dismissing a case for not disclosing a reasonable action for being otherwise as abuse of the process of the court.  At this stage, the court ought not to deal with any merits of the case for that function is solely received for the trial judge as the court itself is not usually fully informed so as to deal with the merits.  No suits ought to be summarily dismissed unless it appears so hopeless that is plainly and obviously discloses no reasonable cause of action and is so weak as to be beyond redemption… A court of justice ought not to act in darkness without the full facts of the case before it.”

Madan JA ( as he then was ) further  adopting the finding of Sellers L in Wenlock vs Moloney (1965) 1 WLR 1238where it was stated :-

“ This  summary jurisdiction of the court was never  intended to  be exercised  by a minute  and a  protracted  examination of documents  and the facts of the case in order  to see whether  the plaintiff  really has a cause of action.  To do that  is to usurp  the position of the  trial judge  and to produce  a trial of  the case in chambers, on affidavits only, without  discovery  and without oral evidence  tested by cross examination  in the ordinary way.  This seems to me to be an abuse of the inherent power of the court and not a proper exercise of that power.”

Further, Danckwerts L.J in the same case stated:

“ The power to strike out any  pleading  or any part of a pleading  under this rule is not  mandatory; but  permissive  and confers  a discretionary jurisdiction  to be exercised  having regard  to the quality and all the circumstances  relating  to the offending pleading.”

In Crescent Construction Co. Ltd vs Delphis Bank Ltd CA 146/2001(2007) e KLR the Court of Appeal in  dealing  with an appeal where  a plaint  was struck out on the grounds that it disclosed no cause of action  and that it  was frivolous , vexatious and an abuse of  the court process observed:

“However, one thing remains clear   and that is that the power to strike out a pleading is a discretionary one.  It is to be exercised with the greatest care and caution.  This comes from the realization that the rules of natural justice require that the court must not drive any litigant however week his cause may be from the seat of justice.  This is a time honoured legal principle.  At the same time, it is unfair to drag a person to the seat of justice when the case purportedly brought against him is a non starter.”

The issue of  whether or not a court  has jurisdiction  to hear and determine  this appeal  is critical as its determination  might as well determine  the entire  appeal at a preliminary  stage  hence  the need to determine  it first.

As held in Owners of the Motor Vessel “Lillian S vs Caltex Oil (Kenya) Ltd (1989) KLR 1.

“ By jurisdiction , is meant  the authority  which a court  has to decide  matters  that are  before it  or take cognizance  of matters  presented  in a formal  way  for its decision.  The limits  for this  authority  are imposed by the  statute, Charter, or Commission  under which the court is constituted  and may be  extended  or restricted  by the  like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited.  A limitation may  be either  as to the kind and nature  of  the actions  and matters  of  which the particular  court has  cognizance  or as to the area over which the jurisdiction of an inferior court  of tribunal (including an arbitrator) depends on the existence of a particular state  of facts.  The court or tribunal must  inquire  into  the existence  of the  facts  in order to decide whether  it has  jurisdiction, but, except  where  the court  or tribunal has been  given  power to determine  conclusively whether  the facts exist.  Where the court takes it upon itself to exercise   a jurisdiction which it does not possess, its decision amounts to nothing.   Jurisdiction must be acquired before judgment is given…”

This  court must therefore  inquire  as to whether it has jurisdiction to hear  and determine this  appeal on its merits or the jurisdiction lies  elsewhere  in the Judicial Review  Division  of the High Court  by way of  Judicial Review proceedings.

The above principles of law, in my view, are applicable to appeals and any other form of pleading or proceeding initiated before a court of law or a dispute that can be resolved by application of the law. The said principle has since found support in Article 50(1) of the Constitution which Article guarantees all persons the right to a fair hearing and Article 48 of the Constitution on the right to access to justice. Where pleadings or proceedings are struck out before both parties are accorded an opportunity to be heard, unless such pleading or proceeding is incompetent and therefore an abuse of the court process, the court will hesitate to accede to the prayer to strike it out at the interlocutory stage. In Richard Ncharpi Leiyagu case CA 18/2013 the Court of Appeal stated:

“  The  right to  a hearing has  always  been a well protected right  in our  constitution  and is also the  cornerstone  of the Rule of law.  This is why  even if  the court have inherent jurisdiction  to dismiss  suits, this  should be done in circumstances  that  protect  the integrity of the court process  from abuse  that would amount to  injustice  and at the end  of the day there  should be proportionality.”

To answer the critical question posed hereto, we must embark on an appreciation of what judicial review and appeal are and what each of the two modes of challenging decisions of tribunals are intended to achieve. So much has been written on this aspect and the courts have churned out a plethora of decisions on the matter that I need not reinvent the wheel in setting out the distinction between the two remedies which are recognized not only in our statute books but in the Constitution of Kenya, 2010.

It is a well established fact and principle of law that Judicial Review remedies are discretionary and are not guaranteed. According to Judicial Review Handbook, 6th Edition by Michael Fordham at page 5, judicial review is a central control mechanism of administrative law (public law), by which the judiciary discharges the constitutional responsibility of protecting against abuses of power by public authorities. It constitutes a safeguard which is essential to the rule of law; promoting the public interest; policing parameters and duties imposed by Parliament; guiding public authorities and securing that they act lawfully; ensuring that they are accountable to law and not above it; and protecting the rights and interests of those affected by the exercise of public authority power.

The purpose of judicial review is to check that public bodies do not exceed their jurisdiction and carry out their duties in a manner that is detrimental to the public at large. It is meant to uplift the quality of public decision making, and thereby ensure for the citizen civilized governance, by holding the public authority to the accountable limits defined by the law.  Judicial review is therefore an important control, ventilating a host of varied types of problems.

However, it is important to remember that Judicial Review is a special supervisory jurisdiction which is different from both (1) ordinary (adversarial) litigation between private parties and (2) an appeal (rehearing) on the merits. The question is not whether the judge disagrees with what the public body has done, but whether there is some recognizable public law wrong that has been committed.  Whereas private law proceedings involve the claimant asserting rights, judicial review represents the claimant invoking supervisory jurisdiction of the Court through proceedings brought nominally by the Republic. See R vs. Traffic Commissioner for North Western Traffic Area ex parte Brake [1996] COD 248.

Judicial review is a constitutional supervision of public authorities involving a challenge to the legal and procedural validity of the decision.   It does not allow the court of review to examine the evidence with a view of forming its own view about the substantial merits of the case.  It may be that the tribunal whose decision is being challenged has done something which it had no lawful authority to do.  It may have abused or misused the authority which it had.  It may have departed from procedures which either by statute or at common law as a matter of fairness it ought to have observed.  As regards the decision itself it may be found to be perverse, or irrational, or grossly disproportionate to what was required.  Or the decision may be found to be erroneous in respect of a legal deficiency, as for example, through the absence of evidence, or through a failure for any reason to take into account a relevant matter, or through taking into account an irrelevant matter, or through some misconstruction of the terms of the statutory provision which the decision maker is required to apply.  While the evidence may have to be explored in order to see if the decision is vitiated by such legal deficiencies, it is perfectly clear that in a case of review, as distinct from an ordinary appeal,the court may not set about forming its own preferred view of the evidence. See Reid vs. Secretary of State for Scotland [1999] 2 AC 512.

Judicial review, it has been held time and again, is concerned not with private rights or the merits of the decision being challenged but with the decision making process.  Its purpose is to ensure that the individual is given fair treatment by the authority to which he has been subjected.  See R vs. Secretary of State for Education and Science ex parte Avon County Council (1991) 1 All ER 282, at P. 285.

The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment reaches on a matter which it is authorized by law to decide for itself a conclusion which is correct in the eyes of the court. See Chief Constable of the North Wales Police vs. Evans (1982) I WLR 1155.

But the availability of alternative remedies has never been a bar to Judicial Review remedy as was held in the case ofDavid Mato T/A Manyatta Auctioneers v R CA 265/97. In Republic vs Public Procurement Administrative Review Board  & another  Exparte Selex Selex Sistemi Integrati   Nyamu J stated:

“ The second  issue is whether  the public interest of finality in procurement  procedures  outweigh   the judicial adjudication.  Section 2  of the Public Procurement  and Disposal  Act,2005 is elaborate  on the purpose of the Act  and top  on the list is to maximize economy and  efficiency  as well as to increase public  confidence  in those procedures.  The Act was legislated to hasten or expedite the procurement procedures for the benefit of the public.  Indeed, Section 36(6) and 100(4) of the Act which are ouster clauses were tailored to accelerate finality in public projects.  The intention of efficiency is noble and must be appreciated if the development agenda is to be achieved. The court cannot ignore that objective because it is meant for a wider public good as opposed to an individual who may be dissatisfied  with the procuring entity.

However, the court must put all public interest considerations in the scales and not only the finality consideration.  The said Act  also has  objectives  namely to provide the integrity and fairness of the procurement procedures  and to  increase  transparency  and accountability.  Fairness, transparency and accountability are core values of modern society like Kenya.  They are equally important and may not be sacrificed at the altar a of finality.  The court must look into reach and every case and its circumstances and balance the public interest with that of a dissatisfied applicant.  Adjudication of disputes is a constitutional mandate of the courts and the court cannot abdicate  from it.  Speed  is the hallmark  of Judicial Review  and even an  application   for leave is filed under certificate of urgency.  The law  also  sets out   the period within which to  file the application for  substantive  orders, failure of which  the orders  granted  at leave stage  automatically  lapse.  It is  therefore arguable  that finality  is the very nature of Judicial Review.  It is also  arguable that whenever  a party comes  to court for redress un public  procurement cases, finality  cannot outweigh  judicial adjudication  as there may be other issues  such as  integrity, transparency and accountability  which are  also the  in public  interest and  it adjudicated upon by the court, may maximize  economy  and increase  public  confidence  in the procurement  procedures.

Perhaps, if finality is over emphasized  at  the expense  of other  equally  important  core values  in the said  Act, the very intention of  parliament  captured  by Section 2 will  substantially  fall.  The court appreciates that one of the objects of the said Act  in  Section 2(a) is to maximize economy  and efficiency.  However, while  time  is of  essence  in carrying  out projects, speed cannot  override  justice and  an illegality  cannot be countenanced  by the court  merely because  the offending party  is over zealous  to complete  a project.

It is  also one  of the objects of the Act, to promote  integrity  and fairness of procurement  and disposal  procedures.  The law  acknowledges  the need for  speed certainly as  to the  legitimacy  of target activities  and requires  applicants   for Judicial Review to act promptly and avoid frustrating a public body  whose decision is challenged  particularly  because of public interest.”

Section 100 of the Public Procurement and Disposal Act is clear on the specific timelines for challenging decisions of the Review Board. Fourteen days is given for filing of judicial review proceedings and under subsection 4, the High Court must determine the Judicial Review matter within 30 days otherwise the decision of the Review Board takes effect.

Nonetheless, the same Act, and the reason why this court must belabor herein, is that section 100 (2) makes provision for appeal. From the many decisions that I have examined as cited by parties advocates and on my own, only Hon Justice Mabeya interpreted that section to the effect that the word “appeal” as used in the section as read with the marginal notes meant the Judicial Review proceedings. The learned judge referred to the case of Anisminic Ltd v Foreign Compensation Commission 19 (69) 2 WLR 163 Lord  Reed  on ouster clauses that:

“it is  well established that a provision  ousting  the ordinary jurisdiction  must be  construed  strictly.  Meaning  in turn, that if such a provision  is capable  of having  two meanings that meaning  shall be taken which preserves the ordinary jurisdiction of the court.”

The Hon Judge’s finding that the  “appeal” process  referred to  in Section 100(2)  of the Public Procurement  and Disposal  Act is a technical  term for the appropriate  mode  of challenging  decisions  of the Board and that in the context  of that  Section “appeal” technically  is  Judicial Review.”  In the learned judge’s view, the ordinary jurisdiction of the High Court with regard to Public Procurement law is the Jurisdiction for Judicial Review.

While Iam in agreement that  the procurement law was meant to expedite procurement procedures  and that in appeals, there may be delays due to the many lengthy procedures attendant thereto, I nonetheless do not agree with my brother judge’s interpretation of section 100 of the Public Procurement and Disposal Act,2005 and will proceed to give my reasons.

First, is that the Section 100(2) of the Act, in my view, gives an aggrieved party a choice between Judicial Review and appeal depending on what is being challenged. The Act in that section provides for two alternatives for challenging the decision of the Review Board and therefore once a party chooses the Judicial Review path, then they are precluded from filing an appeal at the same time and if they choose the appeal way, then they cannot be allowed to pursue Judicial Review.

The appellant maintains that they are challenging the merits of the decision of the Review Board and therefore the Judicial Review remedy would not be available to them and that since the Judicial Review  remedy is discretionary, it is not available to a party who is challenging the merits of the decision of the Review Board.

The respondents who oppose the appeal on the other hand contend that the appeal is challenging the process of the Procuring entity and not merits of the decision of the Review Board.

For this court to determine whether the appeal herein is challenging the process or the merits of the decision of the Review Board, it will have to hear all arguments for and against the specific grounds set out in the memorandum of appeal as filed. If that happens at this stage, no doubt, then the appeal will be heard prematurely.

In this case, a record of appeal has been filed but the appeal has not been considered by a judge in chambers for admission under section 79 B of the Civil Procedure Act and no directions have been given. Those are the legal and procedural steps necessary for the preparation of disposal of appeals, which procedure is quite different from Judicial Review Proceedings.

This court has also heard serious objections to the competency of the appeal, for reasons that the law does not permit the filing of an appeal under section 100 of the Act,  but a judicial review. The court has not heard any substantive submissions as to the  substance of the appeal upon which it can make a finding that the appellant ought to have filed a Judicial Review application and not an appeal. Having found that there are two paths to challenging the Review Board’s decision depending on whether the challenge is against process or merits of the decision, I also note that in the decision by Justice Mabeya and all other decisions of the High Court and this court relating to the issue, the courts have made decisions on whether or not the judicial review remedy was available to the applicants, only after hearing all the parties on the merits of the applications for Judicial Review. In each of those decisions, the courts were considering whether Judicial Review remedies were available to the applicants and not appeals. The courts were also clear that the applicants had options of filing an appeal and not judicial Review and where the courts found that indeed the remedy of Judicial Review was not available and that the applicants should have filed appeal, the courts did not hesitate to dismiss the Judicial Review proceedings.

The court’s jurisdiction can be expressly  conferred  by the Constitution or Statute  and in some instances  like in the present case, it depends  on the  circumstances   of a particular set  of facts, since  the issue at  hand is  whether  the appellant had a right to  elect  whether  to file an appeal or to file Judicial Review  proceedings  to challenge  the decision of the Public Procurement Administrative Review  Board   and not whether  the High Court  has the jurisdiction to hear and  determine the dispute  between the parties.

What the application by the respondents opposed to the appeal herein seeks is to ask this court to determine whether the matter herein is fit for an appeal as filed or for Judicial Review orders. To  determine that  question, this court  must endeavor  though briefly, to examine  what  judicial review entails  and hence, whether  this appeal is  properly  before this court as I have done herein.

When the High Court entertains Judicial Review proceedings it exercises its jurisdiction as conferred by Articles 47, 165 (3) (e) and (7) of the Constitution and Order 53 of the Civil Procedure Rules.  In addition, the court exercises jurisdiction as conferred by Section 8 and 9  of the Law Reform Act  Cap 26  of Kenya.

I reiterate that the purpose  of Judicial Review is to check  that public bodies  or tribunals   do not  exceed their jurisdiction and  that they carry out  their statutory  duties  in a manner that  is not  detrimental  to the public  at large  ( See Republic vs Permanent Secretary  to the Cabinet and Head of  Public Service, Office  of the President   and 2 Others – Exparte Stanley Kamanga Nganga (2006) e KLR.

Zeroing down to this case  which  involves procurement   of services, what Judicial Review  would be seeking to  do is to check whether  the Review Board  derogated from the procedures, in reviewing  the decision of the procuring  entity, since  the Rules  and Procedures  and Regulations regarding procurement  of public  goods and services  are meant  to inspire  public confidence in the procurement sector, to ensure  a fair, transparent, and  efficacious procurement  atmosphere that would not allow one  party to steal a match on the others.

Judicial Review Orders are also discretionary and the Public Procurement and Disposal Act and Regulations provide for strict timelines which parties should adhere to in seeking Judicial Review orders.  In Vania  Investments  Pool Ltd v Capital Markets  Authority & 8 Others 2014) e KLRthe Court of Appeal, in upholding the decision of (Majanja J)in the HC MISC  CIVIL APPL 139/204  where the learned judge  held  that one of the reasons that a  court may reject an application  for Judicial Review  is the availability  of an alternative  remedy for the  aggrieved party, relying on Speaker  of the National Assembly  vs Njenga  Karume (1990-1994) EA 546,and R vs National Environment  Management  Authority Exparte Sound Equipment  Ltd CA  84/2010 (2011) e KLR in which  the Court of Appeal  observed that :

“ Where  there was  an alternative  remedy  and especially where parliament has provided a statutory procedure, it is only in exceptional circumstances that an order for judicial review would be granted, and hat in determining  whether  an exception  should be  made and  Judicial Review  granted, it  was necessary for the court to look carefully at the suitability  of the statutory  appeal  in the context  of the particular  case and  ask itself  what, in the context  of the statutory  powers,  was the  real issue to be determined  and  whether  the statutory appeal  procedure  was suitable  to determine it.”

The Court of Appeal in the above matter further observed that although ideally Judicial Review should be sought as a remedy of last resort, there can be exceptions.  The same Court of Appeal pronounced itself thus in R vs National Environmental Management Authority (2011) e KLR (Supra) that:

“…………in determining   whether an exception should be  made, and  judicial review  granted, it was necessary  for the court to look carefully  at the suitability of the statutory  appeal in the context  of the particular case and ask itself  what, in the context  of the statutory powers, was the real issue to be determined and whether  the statutory appeal procedure  was suitable  to determine it.”

In HC MISC 424/2013 (2015) e KLR  R vs  THE HIV  & AIDS TRIBUNAL Exparte DynCorp International & JKM  where  it was contended by the respondent that the applicant had no right of  appeal against the decision of  the respondent  and that  it should  have filed for  Judicial Review, Odunga  J found that:

“the applicant  had  an opportunity  of appealing  against  the  decision  of  the respondent.”  The law is that Judicial Review proceedings are special proceedings and ought not to be resorted to as an alternative to ordinary civil litigation or an appellate process.  As was held by Ochieng J, in John Fitzerald Kennedy Omanga vs The Post Master General Postal Corporation of Kenya &  2 Others Nairobi HC MA 997/2003,for the court  to require  the alternative  procedure  to be exhausted prior to resorting  to Judicial Review  is in accord  with  Judicial Review  being very properly  regarded as a remedy of last  resort; the applicant however  will not be required to resort  to some procedure if that  other procedure  is less convenient  or otherwise  less appropriate, the  adversely affected  party ought  to  appeal against  the said order rather  than to challenge  a decision  in respect  of which an  application   has been made and  dismissed  by the tribunal by way of  Judicial Review  proceedings.

Having considered  the application herein, it is my view  that the  application  ought to have pursued  the  appellate  process rather than  challenging the respondent’s  decision  in these  Judicial Review  proceedings.”

The scope of Judicial Review  was also considered  in R v Vice Chancellor  JKUAT Exparte Cecilia  Mwathi & Another in which the  following  excerpt  from Supreme Court practice 1997 VOL 53/1-416 was quoted:

“  The remedy of  Judicial Review  is concerned  with reviewing  not the merits of  the decision in respect of which  the application  for Judicial Review  is made, but the decision  making process  itself.  It is  important  to remember  in every  case that the purpose of the remedy  of Judicial Review is  to ensure  that the individual  is given  fair treatment  by the authority  to which  he has been  subjected  and that  is no part of that purpose  to substitute  the opinion  of the judiciary  or of individual  judges  for that  of authority  constituted  by law to decide  the matters  in question”

What  I gather  from the above  distinguished  decisions  is that Judicial Review  has  never been  the  only remedy available to  a party who wishes  to challenge  a decision  of a tribunal  or body subordinate to the High Court   (including other Superior Courts  of same status as the High Court).

The above position is fortified by the provisions  of Section 99 of the Public Procurement  and Disposal  Act which  allows  an aggrieved  party  to pursue  any other  remedy  it can lodge  such as lodging a  complaint with any other  constitutional  body  if there is a  basis, a petition, appeal etc.  The Section  does not  specify those  other remedies  available  but courts  have over  time held  that other  available  fora for complaining against decisions of public administrative bodies are  the Ombudsman’s  Office (Commission of Administrative Justice (CAJ)) , filing of  civil suit  or even an appeal.  The Section provides;-

“The right to request a review under this part is in addition to any other legalremedy a person many have.”

In R vs  Epping  and Harlow General Commissioner  Exparte  Gold Straw (1983) 3 ALL ER 257  it was stated:

“Theapplication for Judicial Review was within the residual jurisdiction   of the court, but save in exceptional circumstances, that jurisdiction would not be exercised where other remedies were available  and had not been used.”

In Republic  vs Kenya Revenue  Authority Exparte  Yaya  Towers Ltd  (2008) e KLR, the  court  was clear  that the  remedy of Judicial Review is concerned  with reviewing  not  the merits  of the decision but the  decision  making process.”

The above position was also accepted in Municipal Council of Mombasa v Republic & Umoja  Consultants  Ltd (2002) e KLR  where it   was stated  that:

“ In Judicial  Review, the court would only be  concerned with the  process  leading  to the  making of the decision.  How was the decision  arrived at ?  did those who made the decision have the power, i.e the jurisdiction to make it?  Were the  persons affected  by the decision  heard before it  was made?  In making the decision, did the decision maker take into account relevant  matters  or did he  take into account irrelevant  matters?  These  are the kind of  questions  a court hearing  a matter  by way of Judicial Review  is concerned  with, and such court   is not entitled to  act  as a Court of Appeal over the  decider; acting as  an  Appeal Court  over the decider  would involve  going into the merits  of the decision  itself-such  as whether  there  was  or there  was not sufficient evidence  to support  the decision and that , as we  have said, is not the  province  of Judicial Review.”

Judicial Review remedy  is not guaranteed   to a party, being a discretionary remedy (see R vs Kenya National Commission on Human Rights Exparte Uhuru Muigai Kenyatta HC MCA 86/2009 and  in granting  the remedy, even if the particular  case falls  into one of the categories  where Judicial Review  will be, the court is not bound to grant it. In addition, as to what orders the court will make in an application for judicial review will depend on the circumstances of each case.  The court  has to  weigh one thing against another  to  see whether  or not  the remedy  is the  most efficacious in the circumstances  obtaining  and the  discretion of the court being a judicial one must be exercised on the evidence  of sound legal principles.

From my expositions  of the two positions of whether one  has an option of filing for Judicial Review  or not, I have  come to  the conclusion that  under Section 99 of the Act, in addition to  any other legal remedy, a person  may have Judicial Review  sought,  and that, the availability  of an alternative  remedy  is not a bar to Judicial Review  of Administrative action  under the Public Procurement and Disposal Act.

I have also come to the  conclusion  that under Section 100 of  the Act, an aggrieved  party has the option of appealing or applying for Judicial Review, and that by dint  of Section 100(4) of the Act, if Judicial Review  is taken by the party, it must  be declared/determined  within 30 days  from date  of filing  failure to which the decision of  the Board takes effect.

I am also persuaded that whereas an appeal is concerned with the merits of the decision of the administrative body or tribunal, Judicial Review is concerned with the decision making process.  Judicial Review  is thus concerned  with whether  or not the authority  has exceeded its powers, committed  an error  of law, omitted Rules  of Natural Justice, a duty to  act fairly, reached a decision which no reasonable  tribunal could  have reached  or abused  its power. In this case, the appellant maintains that it is challenging the merits of the decision, having regard to circumstances of the case. It is their appeal. They are under a legal burden to prove what they allege, and this court cannot oust them from the judgment seat especially where there is abundant jurisdiction to receive and determine the appeal on its merits.

Thus, whether a party aggrieved by the decision of the 1st respondent has the  option of either filing an appeal  or filing  an application for Judicial  Review,the option a party takes  determines the scope  of the jurisdiction  of the court  in entertaining  the challenge  to the decision  of the 1st respondent Review  Board.

Where  one chooses  to go by way of Judicial Review, then the role of the  court is  circumscribed by the  provisions  of the Law Reform Act and Order 53  of  the Civil  Procedure Rules ( See Shaban  Mohamed Hassan  & 2 Others  vs Attorney General  & 3 Others , CA 281/2012  where Koome, Mwera, Musinga, Ouko and  Mohammed JJA ( 5 bench)dealt with the issue of  whether  under Article  89  of the Constitution  Judicial Review  is a proper  mode of review   of the decision  of IEBC published  as National Assembly Constituencies  and  County  Assembly  wards Order, 2012 LN 14/2012.

I must also mention here that it would be a travesty of justice in the circumstances of this case if the court were to bar the appellants from seeking justice by way of an appeal as that would leave them remediless, noting that Judicial review process is now a foregone matter owing to the limitations of time placed by the Act. Thus, where a remedy provided under the Act is made illusory with the result that it is practically a mirage, the Court will not shirk from its Constitutional mandate to ensure that the provisions of Article 50(1) are attained with respect to ensuring that a person’s right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body is achieved. As was rightly stated in Republic vs. Returning Officer of Kamukunji Constituency & The Electoral Commission of Kenya HCMCA No. 13 of 2008,it is the responsibility of the Court to ensure that executive action is exercised; that  Parliament intended and that the High Court has the responsibility for the maintenance of the rule of law; that there cannot be a gap in the application of the rule of law; that the Court must at all times embrace a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law. Therefore where there is a lacuna with respect to enforcement of remedies provided under the Constitution or an Act of Parliament, or if, through the procedure provided under an Act of Parliament, an aggrieved party is left with no alternative but to invoke the jurisdiction of the Court and the Court is perfectly within its rights to investigate the allegations, to fail to do so would be to engender and abet an injustice and as has been held before, a court of justice has no jurisdiction to do injustice. See M Mwenesi vs. Shirley Luckhurst & Another Civil Application No. Nai. 170 of 2000 and Kenya Industrial Estates Ltd vs. Transland Shoe Manufacturers Ltd. & 2 Others Civil Application No. Nai. 364 of 1999.

The law being a living thing, a court would be shirking its responsibility were it to say, assuming that there be no existing recognized remedy covering the facts of a particular case, “Why then, this must be an end to it.” The law may be thought to have failed if it can offer no remedy for the deliberate acts of one person which injures another. See Bollinger vs. Costa Brava Wine Co. Ltd [1960] 1 Ch. 262 at 238.

Before I make my final decision on this matter, I must also consider the role of Marginal notes. In interpreting statutes, it is a  fundamental rule of interpretation  of all enactments  to which all  other rules  are subordinate  that laws  be construed  according  to the  intent  of the parliament  which passed  the law. The Privy Council in Shannon Realties v. Ville de St. Micheal [1924] AC 185 at pg 192 (per Lord Shaw) when he expressed the view that:

“Where the words of a statute are clear, they must, of course be followed, but in their lordships opinion, where alternative constructions are equally open, that alternative is to be chosen which will be consistent with the smooth working of the system which the statute purports to be regulating and that alternative to be rejected which will introduce uncertainty, friction or confusion into the working of the system.”

The term used in Section 100(2)  is “decision”  and not “procedure.”  In my view, what that implies is that whoever wishes to challenge the decision or determination of the Review Board, and not procedure has  the option of appealing  or filing  for review.  I entertain doubt that Parliament of Kenya ever intended to limit the options for the aggrieved party and if it had so intended, then Section 99 would not have been enacted providing for alternative remedies.

In my view, indeed, the use of  the phrase “Judicial Review”in Section 100 is  a term of art  used  to describe  the process  by which  the High Court  uses the 3 remedies  of certiorari, prohibition and mandamus  to supervise  Public  procurement Administrative  Review Board to ensure it  does not make decisions or undertake   activities  which are ultra vires  its statutory mandate  or which are irrational  or otherwise  illegal in order  to prevent   the authority subjecting  parties before  it  to unfair  treatment. However, there  is  a line of authorities  that  where  there was an alternative  remedy  and especially where Parliament  had provided a statutory appeal  procedure,  it was  only unexceptionally  that Judicial Review  would be  granted.  In determining  whether  an exception should be  made and  Judicial Review granted, it was necessary for  the court  to look carefully at the  suitability of the statutory appeal  in the context  of the particular case and ask itself  what is  the context  of the statutory power and what  was the real issue  to be determined   and whether  the  statutory  appeal procedure  was  suitable  to determine it. (see  R vs Birmingham City Council  Exparte Ferrero Ltd (1993) 1 ALL ER  530.

In Speaker  of National Assembly V Karume  (2009) KLR  425 the Court of Appeal held:

“ Where  there is a clear  procedure  for redress  of any particular  grievance  prescribed  by the Constitution  or an Act  of Parliament  that procedure  should be  strictly  followed.  Order 52 (now 53) cannot  oust clear Constitutional and statutory provisions.”

In this case, the clear statutory provisions of the law are sections 99 and 100.

Examining some of the grounds of appeal in the appellant’s memorandum of appeal and without delving into its merits, In  my view, as to whether Judicial Review  is   the appropriate  remedy for determination of  question of:1. ..Failure to or disregarding  major  issues raised by appellant  in the replying affidavit such  as:

a. Utility  criteria  other than  that specified in the tender documents; – this  would require  re-examination and re-evaluation  of affidavit  evidence  and annextures  which can  only  be done by an appellate  court under Section 78 of the Civil Procedure Act;

b.  failure  to consider  1st report  in the ruling and replying  on the 2nd revised  report  and thereby ignoring  inconsistencies  between the 2 reports;

c.  and failure  to  award  the tender to the appellant   who claimed  to have  been the successful bidder, the court  will have to re-examine, re-evaluate  the law and evidence afresh hence  seeking  a merit  review of the evidence  on record  to reach  its own independent  findings and conclusions.

As I have stated before, the grounds on which the application for striking out this appeal for reasons that the appellant should have approached the court by way of Judicial Review were seriously contested facts which this court can only exhaustively determine at the substantive hearing of the appeal, and not at this interlocutory stage.

It is for those many reasons that I find no merit in the application seeking to strike out this appeal and I decline to grant it.

Back to the issue of stay of execution of the contract already concluded, Section 100(1) and (4) of  the Act, effectively  provides  for an  automatic  statutory  suspension  of any steps  towards  concluding  the procurement  or the giving effect  of its  decision  for a minimum of  44 days – 14 days  for appeal  and  30 days  for determination  of  Judicial Review ( See R v Public Procurement Administrative Review  Board   & 2 Others  Exparte Noble  Gases International Ltd (2013 ) e KLR

According to the respondents, the contract having been entered into  before any stay  was granted, the application for stay has been  overtaken  by events(see Kileleshwa  Service Station Ltd  & Kenya  shell Ltd CA 84/2008.

In R vs  Public Procurement Administrative Review  Board   & 2 Others  Exparte Noble  Gases International Ltd (2013 ) e KLRthe court held:

“ In my view, where Judicial Review proceedings are commenced  within 14 days  from the date  of the respondent  decision  the said  decision  is  neither  final nor binding  and hence ought not to be implemented.  Thus there is  an automatic stay under Order  53  of Civil Procedure  Rules.

In addition, Section 100(1) is clear  that the decision of  the  Review Board  is final  and binding  on the  parties  unless Judicial Review  commences  within 14 days  of the date of Review of the Board’s decision.

The courts have over time held  that even where  there  is no  stay, notwithstanding  the timelines  given, should the court find the decision of  Review Board  a nullity  then the  contract  may be a non –starter. However, in the case before me, the applicant having come to court by way of an appeal, the provisions relating to Judicial Review are not available to them. The Appellant cannot hang on provisions that favour Judicial Review which is an expeditious process. In other words, there are no safe guards for the applicant unless stay is specifically sought and granted in time where they come to court by way of an appeal. That application for stay would then be governed by the provisions of Order 42 rule 6 of the Civil Procedure Rules and the conditions thereto which are that:

Substantial  loss may result  to the  applicant unless  the order is made;

The applicant  has been made without unreasonable delay; and

Such security as the court orders for the due performance of the decree or order as may ultimately be binding on the applicant has been given by the applicant.

The Court also exercises its inherent power under Sections 1A, 1B and 3A of the Civil Procedure Act, treating each case according to its own peculiar circumstances, in deciding whether or not to grant stay of execution pending appeal.

Commencing with the second condition, In this case, the application for stay was sought but not without inordinate delay which has not been explained or at all. From the facts of this case as set out herein and the pleadings, the applicant knew that the contract subject matter was being concluded and yet they chose not to seek for an interim stay.  They filed the appeal on 11th February, 2015 and only filed the application for stay on 20th March 2015. As at the time they filed the application for stay, a contract had already been sealed and performance or implementation was in the process. The decision of the Review Boad had been renderd on 29th January, 2015. In my view, the applicant having elected to file an   appeal must play by the rules of appeal and so is the party who chooses to go the Judicial Review way.  He cannot be allowed to argue Judicial Review in an appeal and vice versa.

The granting  of stay of execution of decree pending appeal  by the High Court  is  a discretionary power, granted when sufficient  cause has been established  by the applicant, on whom the incidence of the legal burden of proof lies (see section 107  and 108 of  the Evidence Act Cap 80 Laws of Kenya  and Halsbury’s Laws of England , VOL 17, paragraph 14 that :

“The incidence of burden…In respect of a particular allegation, the burden lies  upon the party  for whom the substation  of the particular allegation  is an essential  of his cases.”

An order for stay pending appeal serves the purpose of preserving the status quo and ensuring that the appeal is not defeated. This principle was enunciated in the case of BUTT V RENT RESTRICTION TRIBUNAL (1982) KLR 417 that:

“the general principle in granting or refusing a stay is that if there is no other overwhelming hindrance a stay must be granted  so that an appeal may not be rendered nugatory should the decision be  reversed.”

From the record herein, there was no subject matter capable of being preserved, the applicant having watched the contract being concluded between the 1st and third respondent before seeking a stay. To reverse that situation required judicial review filed within 30 days of the decision which would have automatically stayed the decision, or an expeditious application and order for stay in this appeal, none of which were exercised by the appellant.

On the first condition of substantial loss occurring, in Mukuma vs Abuoga (supra) the Court of Appeal held:

“……….. the issue  of substantial  loss  is the cornerstone  of both jurisdiction. Substantial loss is what has to be  prevented by preserving  the status quo because  such loss would render the appeal nugatory.”

In Timmeh Ibrahim v Tipapa Ole Kirrokor& Another Civil Appeal no. 445 of 2014 [2014] eKLR, this court, citing with approval Ringera J (as he then was)in the case of GlobalTours &Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000and the Court of Appeal decision in the Standard Limited & Others – Vs – Wilson Kalya CA App Nai No 369/2001 held that :

“The Court of Appeal in Standard Limited & Others – Vs – Wilson Kalya CA App NRB 369/2001 developed some principles applicable in application for stay of proceedings to guide the exercise of that power of stay so that the same is not left to caprice and those guidelines are simple and direct as follows:

a)      The appellant must show that his appeal is an arguable one.  In other words, he must show that the appeal is not a frivolous one

b)      The appellant must also show, in addition, that if the order of stay of proceeding is not granted, his appeal, if it were to succeed, would be rendered nugatory.

In Tabro Transporter Ltd vs Absolom Dora Lumbani (2012) e KLR  Gikonyo J was categorical that:

“Of course  a frivolous appeal cannot be rendered nugatory.  The only caution  however, is that  the High Court  should  not base the exercise of its discretion  under Order 42 Rule 6  of the Civil Procedure Rule  on the chances  of the success of the  appeal.  It must consider factors that constitute substantial loss.  Much more is therefore needed in order to pass the test I have set out above.”

Although the above principles were made regarding appeals to the Court of Appeal, I find them relevant to this matter and I apply them. From the foregoing submissions by both the appellant and the respondents, I find the appeal is arguable. The appeal in my view raises issues that cannot properly be determined conclusively at this interlocutory stage. In considering this application, Iam mindful that an arguable appeal is not one that must necessarily succeed, but one in which the court should consider, that whether or not an appeal will be rendered nugatory is a question of fact which will depend on the peculiar circumstances of each case; whether or not what is sought to be stayed, if allowed to happen, is reversible or not and whether an award of damages will be sufficient compensation for the purpose of the application.

In Elegance Investment Limited & Another v Anthony Chinedu Ifedigbo CivilApplication No. Nai 321 of 2014 (UR 243/2014)[2015] eKLRthe court stated that:

“However, it is not for this court to delve into the arguableness of that appeal as filed at this stage. The main issue for determination in prayer 1 of the application is indeed, whether the appellant/applicant has established a case to enable this court to grant it the stay orders sought.”

In Timmeh Ibrahim v Tipapa Ole Kirrokor& Another (supra)this court, citing with approval Ringera J (as he then was) in the case of GlobalTours &Travels Limited Nairobi HC Winding Up Cause No. 43 of 2000and the Court of Appeal decision in the Standard Limited & Others – Vs – Wilson Kalya CA App NRB 369/2001 held that:

“The Court of Appeal in Standard Limited & Others – Vs – Wilson Kalya CA App NRB 369/2001 developed some principles applicable in application for stay of proceedings to guide the exercise of that power of stay so that the same is not left to caprice and those guidelines are simple and direct as follows:

a)      The appellant must show that his appeal is an arguable one.  In other words, he must show that the appeal is not a frivolous one

b)      The appellant must also show, in addition, that if the order of stay of proceeding is not granted, his appeal, if it were to succeed, would be rendered nugatory.

Albeit the appeal herein cannot be said to be frivolous and is therefore arguable, nonetheless, it was not demonstrated to this court that the appellant shall suffer substantial loss that cannot be compensated in damages unless the stay sought is granted and that the said appeal if successful shall be rendered nugatory.

The application was made with inordinate delay and that no substantial loss has been demonstrated by the applicant, which loss would render the appeal nugatory.  That being the case, I find no need elaborating on the third condition requiring security for the due performance of decree. Accordingly, I decline to grant the prayers for stay of execution of the contract pending hearing and determination of this appeal.

The upshot of all the above is that I find no merit in the application seeking to prematurely end this appeal and decline to grant the orders sought by the 3rd respondent.

I further decline to grant orders for stay of enforcement of the contract already entered into between the 3rd respondent and the 2nd respondent pending hearing and determination of this appeal.

I order that each party bears its own costs of the respective applications.

Dated, signed and delivered in open court this 31st day of July, 2015.

R.E.ABURILI

JUDGE