Peesam Limited v Public Procurement Administration Review Board,Kenya Airports Authority & Muturi Maina t/a Samjush Contractors and Suppliers [2018] KEHC 7658 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW NO.  201 OF 2017

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW ORDERS OF CERTIORARI AND MANDAMUS

AND

IN THE MATTER OF ARTICLE 10, 23 AND 47 OF THE CONSTITUTION 2010

AND

IN THE MATTER OF THE PUBLIC PROCUREMENT AND ASSET DISPOSAL ACT 2015

IN ACCORDANCE WITH ORDER 53 OF THE CIVIL PROCEDURE RULES 2010

AND

IN THE MATTER OF AN APPLICATION

BETWEEN

PEESAM LIMITED....................................................APPLICANT

AND

PUBLIC PROCUREMENT ADMINISTRATION

REVIEW BOARD............................................1ST RESPONDENT

AND

KENYA AIRPORTS AUTHORITY..............2ND RESPONDENT

AND

MUTURI MAINA T/A SAMJUSH

CONTRACTORS AND SUPPLIERS.....INTERESTED PARTY

JUDGMENT

1.   The exparte applicant  herein PEESAM LIMITED,a limited liability  company  duly registered  and  incorporated  in Kenya under the companies Act, together with  the interested party MUTURI MAINA T/A SAMJUSH  CONTRACTORS  AND SUPPLIERSand  5 other bidders tendered for the  2nd  respondent  Kenya Ports Authority’s Tender No. KAA/ES/MANDA/1082/EN for Environment Management Services (Grass cutting and vegetation, control, drainage and gardening at the 2nd respondent’s Manda Airstrip.

2.   The subject tender was advertised on various dates in November 2016.  Upon receiving the bids, the  2nd  respondent  Procuring Entity Kenya Airports Authority carried out an evaluation of the tender upon which it found the applicant to be the successful  bidder and on 9th March  2017  it notified  the  award of the  tender to the exparte  applicant.

3.   The exparte applicant did on 7th April 2017 which was within the 30 days; submit the performance bond to the Procuring Entity.

4.   The exparte applicant claims that unknown to it, the interested party herein MUTURI MAINA T/A SAMJUSH CONTRACTORS AND SUPPLIERShad filed a request for review before the 1st respondent Review Board on 23rd March 2017 and the same was set for  hearing on 6th April  2017.

5.   It is alleged that the exparte applicant was never made a party  to the request for Review and that neither was it notified of the hearing in good time to enable it appear and defend itself.  Instead, the exparte applicant received the notification of hearing after the scheduled hearing date and that is when it discovered that the 1st  respondent  Review Board  had  proceeded  with the hearing and  on  13th April  2017  a decision was made setting  aside  the  award  of the tender made to the  applicant  by the  Procuring Entity.

6.   Aggrieved  by the decision of the Review Board, the exparte  applicant filed  these proceedings and  upon being granted  leave to institute  these proceedings, filed  a notice of  motion dated  8th May 2017 seeking the following  Judicial Review orders:

1)   Certiorari to the 1st respondent, by itself, its servants and  or agents  or any other  officer acting  under  its authority to bring to the court for the purpose of  being quashed the decision by it  in or about 13th April  2017  to annul and set aside a decision by the 2nd  respondent (Procuring Entity) to award  tender No.  KAA/ES/MANDA/1082/ENV to the applicant;

2)   Mandamus directed to the 2nd respondent (Procuring Entity) to finalize and sign the contract documents for tender No.  KAA/ES/MANDA/1082/ENV between it and the applicant;

3)   Costs of the application.

7.   The grounds upon which the application is predicated are on the face of the notice of motion as supported by the statutory statement and verifying affidavit sworn by Samuel Mburu Ng’ang’a in support of the chamber summons for leave dated 2nd May 2017.

8.   The exparte  applicant claims  that it  was  condemned  unheard  as it  was never  made a party to the request  for  review  by the interested party and that neither  was  it accorded  an opportunity  to participate  in those proceedings  to challenge  the request  for  review which proceedings annulled a tender  awarded  in  favour of the applicant, and that is the gist of  these Judicial Review  proceedings  as summarized above and contained in the grounds and  verifying affidavit, asserting that the exparte applicant had already paid performance bond of kshs  62,000 after applying  for a loan of kshs 400,000 and purchased uniforms worth104,400 in preparation for  performance  of the tender.

9.   It is alleged that the exparte applicant was notified of the proceedings before the 1st respondent after it has already submitted the performance guarantee bond.

10.   The  exparte applicant complains  that no telephone  or email was send to it yet the respondents had the applicant’s  telephone and other contacts as shown on the envelope posting a letter to it hence its conclusion that there was a scheme  not to involve it in the request for review proceedings yet it was directly affected by the outcome  of the review, which in effect  re-awarded the tender to  the Interested Party herein vide Review No. 31/2017  of  23rd March  2017 before the Review Board.

11.   The application  was opposed by the Interested Party  who filed an affidavit sworn by Muturi Maina  on 30th June  2017 contending that  the  Review Board  made its  decision  on 13th April  2017  and that although  the Judicial Review  proceedings  herein were  filed in time as stipulated  in Section 175(1) of the Public Procurement and Asset Disposal Act  2015, these proceedings  have not been  heard and  disposed  of within 45 days  from the date  of filing on  27th April 2017  which expired  on  13th June  2017  hence by  operation of law, the decision  made by  the  1st respondent  on 13th April  2017 regarding  the  subject  matter herein is final and  binding on all parties including the applicant.

12.   Further, it was contended that  the applicant  admits receiving  the letter from the  Review Board  on  7th April  2017 while the hearing took place on  6th April  2017  and  the  ruling  delivered on  13th April  2017 yet the applicant never attempted to set aside such proceedings prior to the delivery of the ruling by the 1st respondent and that therefore the applicant  was not vigilant.

13.   It was further contended that even after delivery of the impugned  ruling on  13th April  2017, the applicant has not demonstrated that it acted vigilantly and  that it waited until the last date  to file the  Judicial Review  application and even failed to  alert the court of the mandatory  provisions of the Act   that the application  had to be  heard and  determined  before   12th June  2017.

14.   It  was  contended that the  applicant  was  served with  the  letter on 3rd April  2017 and  not 12th April 2017  as alleged and  that had it  exercised  diligence  it would have  moved the  Review Board  before delivery  of judgment  on 13th April  2017.  It was contended that the prayers sought more particularly mandamus is misplaced.

15.   Further, that the applicant had failed to adhere to the established procedure which is prescribed by law.  It was contended that the judicial review remedies are discretionary in nature hence they are not issued automatically and that therefore the applicant should not expect to be declared the winner of the tender when it was not the lowest evaluated bidder and that if it was to be awarded the tender, public money will be spent without due regard to the principles enshrined in the Constitution. The interested party urged the court to dismiss the exparte applicant’s notice of motion.

16.   The interested  party also  filed an  application dated  30th June  2017  seeking  to have the exparte  applicant’s  application dated  2nd  May  2017  struck out with costs  on the grounds inter alia, that the same had not been  heard and determined within 45 days as stipulated under Section  175(4) the Public Procurement and  Asset Disposal Act. It was also claimed that the applicant had failed to adhere to the procedure provided under the Public Procurement and  Asset Disposal Act; That the  applicant  was not  the lowest   bidder  hence it would be a waste of  public funds  to award  it the subject tender; that the applicant should have acted promptly, having  received  the letter on 7th April  2017; and that  Judicial Review  remedies are discretionary and not automatic and  so, having regard to constitutional principles of accountability and  credibility  in matters of  public finance, it is in the interest of justice  and  fairness  that the application  be struck out.

17.   The  1st respondent  Review Board opposed  the  exparte applicant’s  notice of motion and  filed a replying  affidavit  on 2nd October  2017  sworn by  Stanley  C. Miheso on 7th April  2017 contending  that when the 1st respondent  received  a request for review from the  Interested Party on 23rd March  2017 the 1st respondent served the applicant with a copy notifying it of the review and  requiring it to appear for hearing  in accordance with Regulation  74(1)  and  74(2)  of the  2006  Regulations.

18.   That on  6th April  2017  the 1st respondent Review Board heard the request for review  and  delivered its ruling on 13th April  2017 taking into account facts presented before it including the litigation  history  which would  have knocked  out the applicant  at the preliminary stage.

19.   Secondly, that Clauses 2. 24. 1.and 2:24. 3 of the tender documents are vague and so, no due diligence could be done on a matter like litigation.

20.   That the  debarment  based on a yet to be determined  arbitration is contrary to Section  41 of the Act  and that  in any case  the  Procuring  Entity  had no jurisdiction to debar a tenderer.

21.   That the  Procuring  Entity’s  refusal to  award the tender to the lowest  evaluated  bidder offends  the spirit  of Section  3 of the  Act and Article 227 of the Constitution  as it does not  maximize value of money.

22.   That the Review Board made a decision within its mandate after considering   all the issues.  That there is no demonstration that the Review Board   was unreasonable in arriving at its decision or that it  was  irrational  or that  it is guilty of any illegality, impropriety  of procedure  and  irrationality on its part.

23.   The Review Board  maintained  that it  complied with Section 173   of the Act  in  arriving at its  decision hence the  motion by the  applicant  is  made in bad  faith and has no merits, only  meant to discredit  the  credibility of the respondent’s  mandate  and  function while ultimately  eroding  the  public confidence  in the  procurement  procedures  and  processes. The court was urged to dismiss the  application.

24.   The 2nd  respondent  Procuring Entity  Kenya Airports Authority also  opposed the  exparte  applicant’s  application and filed  a replying  affidavit  sworn on 17th October  2017 by Margaret  Muraya, the Acting  General Manager, Procurement  and Logistics of the Authority  contending that the application by the exparte applicant is fundamentally flawed, ill-conceived as it fails to successfully demonstrate the threshold required for granting of the prerogative reliefs  sought.

25.   Further that the applicant  does not  contest  the  Judicial Review  process  leading to  the  decision of the  13th April  2017  by the 1st respondent.

26.   That  Section 168  of the Act  only mandates  the  Review Board  to notify  the Procuring Entity of  the receipt  of the request for  review.

27.   That the performance bond was received by the 2nd respondent but no contract has been signed hence the 2nd respondent  cannot be  held liable  for  the alleged losses.  That the jurisdiction of this court on process and not merits of the decision has not been invoked  by the applicant and that  the  Authority  followed the  required procedure while the Review Board exercised its powers  conferred upon it by Section 173 of the Act, heard the respective  parties  and  proceeded  to annul the Authority’s decision.

28.   That the applicant has not demonstrated any irregularity, illegality or procedural impropriety on the part of the respondents nor breach  of the principles of natural justice  since it received the notification of the existence  of the  request for  review and the reasoning behind the decision of the 1st respondent.

29.   It  was  contended that the application  is only intended  to delay the procurement process and causing it  to incur expenses  which   are uncalled  for  hence the Procuring Entity should be allowed to execute  a proper  contract  as per the Act.

30.   The 2nd respondent Procuring Entity urged the court to strike out the motion by the applicant with costs.

SUBMISSIONS

31.   The parties agreed and filed written submissions.

32.   The exparte applicant  filed its  submissions on  25th July  2017  giving the history of the matter and relying on its grounds, statutory  statement  and  verifying  affidavit  and  annextures, and   framed three issues for determination namely:

a)   Whether the failure to list the applicant as  a party in the   review proceedings and not affording it an opportunity to be heard violates the right to a fair hearing and a fair  administrative  action;

b)   If the review decision resulting from proceedings in (a) above is a nullity and the consequences thereof.

c)   Who should bear the costs of this suit?

33.   However, the applicant’s counsel first dealt with the preliminary  issue of whether  the  failure  by the court to hear and  decide  the  application within  45 days as required  under Section  175  of the Act   makes the  application a nullity.

34.   The applicant’s counsel submitted that the 45 days stipulated are not available to court because of time constrains to the Judiciary and that the right to fair trial under Article 50 of the Constitution could not be limited.  Reliance  was placed on JR 502 and 503/2016 Republic vs Public Procurement Administrative Review Board exparte Kleen Homes Security Services [2017] e KLR.

35.   On the contextual  analysis, it  was submitted that Section  170 of the Public Procurement and Asset Disposal Act, 2015  mandates   that the parties to a review  shall be (material to these proceedings).

(a)…….

(b)…….

(c)  The tenderer  notified as successful  by the Procuring Entity.[emphasis added].

36.   Accordingly, it was submitted that the applicant was deliberately denied an opportunity to be heard, which denial offends Article 47 of the Constitution on the right to Fair hearing and natural justice as stipulated in the Fair Administrative Action Act, 2015.

37.   It was also submitted that fair hearing, according to Article 50 of the Constitution constitutes being present and adducing and challenging evidence.  Reliance was placed onMartin Wambora vs Speaker of the National Assembly [2014] e KLR.

38.   It was submitted that none of the rights under the principle of natural justice were extended to the applicant  when the review proceedings were commenced and concluded. Further reliance was placed on Judicial Service Commission (JSC)  v Mbalu Mutava & Another [2015] e KLRon the right to be heard;  to be issued  with notice; to be  heard  by an unbiased  tribunal  and  to be heard in answer to those charges; the legal authority under which the hearing is to be held and statements of specific  charges  which the person had to meet; the right  to know evidence   against him  and the  right to counsel.

39.   It  was  therefore  submitted that   the  applicant having  been the  successful bidder as per the notification of award, it should have been  included/enjoined to the request  for review and that it had  acted expeditiously in filing this application after receipt of  the ruling by the Review Board, through its own efforts and that the applicant was qualified and that it had prepared itself to perform the  tender.

40.   The applicant urged the court to grant it orders of certiorari and mandamus asserting that it  was also entitled to mandamus because it had been  awarded  the  tender  and  was ready to perform it.  Reliance was placed on Republic vs Cabinet Secretary  Ministry of Interior and Coordination of National Government & 2 Others Exparte Patricia Olga  Howson [2013] e KLRon the  nature and  extent  of mandamus. Counsel urged the  court to quash  the  decision of  13th April  2017 as it is a  nullity  for  want of  adherence  to procedural  and  substantive  justice.

41.   In the Interested Party’s Submissions  dated  30th  June   2017  and  supplementary  submissions filed on  14th September  2017, it  was  contended that the  applicant claims  that it  was not served with  notice to appear  yet claims  that it received  notice late which is  contradictory and  an attempt  to  tilt  the  scales. Counsel for the interested party maintained that jurisdiction of  this court is ousted  by the failure to hear and  determine  the application in 45 days  from date of filing.   Reliance was placed  on the Owners  of Motor Vessel “Lilian S” vs Caltex (K) Oil Ltd [1989] KLR 1 CA and Supreme Court  Petition No. 10/2013- Ali Hassan Joho & Another vs Suleiman Said  Shabhal & 2 Others[2014] e KLRon the consequences of hearing a matter where there is no jurisdiction on the part of the courtand on the timely settlement of electoral disputes under Article 87(1) of the Constitution, where the Supreme Court in the Ali HASSAN Joho case(supra) affirmed that constitutional timelines and any statute are not negotiable.

42.   It was submitted that even in this matter, the applicant failed   to file submissions in good time as a result, the interested party filed his submissions before the applicant because the interested party was conscious of time.

43.   Reliance  was also placed on  Cook ‘N’Lile  Ltd  vs Silvester  Mutia Jonathan [2015] e KLR  where Kasango J cited Martha  vs Said  & Another CA 292/1998on the timelines set  in the  Court of Appeal  Rules  for filing  an appeal  to the Court of Appeal  from the High Court  which must be  adhered to.

44.   It  was submitted that the stipulated  time for  deciding  this case  having lapsed, the decision of the  1st respondent  Review Board  is final and  binding on all parties.

45.   Further, that the applicant was not vigilant in bringing these proceedings but indolent as it never filed an application to set  aside the hearing/decision of the Review Board since they received a letter of notification  of the hearing  of the  request for  review.

46.   It was submitted that the letter of notification of hearing was served in time.  Reliance was placed on William Cheruiyot  Kandie v Republic Nakuru Criminal Appeal 21/96for the proposition  that whoever  alleges  must produce evidence  if not they  prejudice their case.

47.   Further reliance was placed on  Linus  Nganga  Kiongo & 3 Others  vs Town Council  of Kikuyu [2012] e KLR and Trust Bank  Ltd  Vs Paramount Universal Bank Ltd & 2 Others  HCC  1243/2001  Nairobi and a submission made thatthat this case had not been proved and that the applicant had not come to court with clean hands hence its claim should be dismissed with costs.

48.   The 1st respondent’s submissions were filed on 2nd October  2017  reiterating  the averments  in their affidavit   sworn by  Mr Miheso Stanley in material particulars hence it is not worth  reproducing  the  affidavit in the  submissions as I have reproduced the contents of the affidavit above, save that the cases  of Republic  vs Business  Rent Tribunal & 3 Others exparte Christine Wangare Gachege[2014]  e KLR; Republic vs Kenya Power and Lighting Company & Another [2013] on the threshold for  granting Judicial Review  orders and the discretionary nature of Judicial Review  remedies was emphasized.  The 1st respondent maintained that the applicant had not demonstrated that it is entitled to the Judicial Review orders sought hence the application should be dismissed.

49.   The 2nd respondent  filed its  submissions  on 17th October 2017  relying  wholly on its replying  affidavit   and  framing  the issues  for  determination namely:

1.   Whether the applicant’s application satisfies the threshold for grant of Judicial Review orders.

50.   Reliance was placed on the often cited cases of Pastoli vs Kabale  District Local Government  Council  & Others [2005] 2 EA 300 cited in JGH Marine  A/S Western Marine Services  Ltd CNPC Northeast Refining & Chemical Engineering  Company Ltd vs Public Procurement Administrative  Review Board  and  2 Others [2015] e KLR where the courts  held that Judicial Review  is not granted  as a matter of course but  that the applicant must demonstrate that the decision  complained of is tainted with illegality, irrationality and   procedural  impropriety  or that the  decision  was made outside  the  Review Board’s jurisdiction.

51.   It was submitted that Judicial Review seeks  to prevent  statutory  bodies from abusing their powers in execution of their statutory  duties or acting  outside  their jurisdiction and  cannot  therefore  be used to curtail or stop statutory bodies or public officers from the lawful exercise of power within their mandates.

52.   It was submitted that albeit the 2nd respondent  Procuring Entity had initially awarded  the  tender to the  applicant,  this position was overturned  by the 1st respondent  Review Board  on  account that  the  applicant  was  not the  lowest bidder and  on account that the  2nd respondent  erred in failing to award the tender  to the interested party on the basis that there was pending litigation  between the 2nd respondent and the applicant.

53.    It was submitted that upon delivery of Ruling and noting the rationale for arriving at the decision, the 2nd respondent had to comply with the decision of the Review Board within the stipulated timelines.

54.   It was submitted that there is no demonstration   on the part of the applicant as to how the respondents acted in an unfair manner hence the applicant does not deserve the orders sought.

55.   The second issue raised  by the 2nd respondent  is whether  there was  a breach of the applicant’s  right to  fair hearing.

56.   In answer thereof, the  2nd respondent   submitted that albeit  the  applicant complained that Section 170 of the Public Procurement  and  Asset Disposal Act, 2015  provides for parties  to a review, but that  Section  168 of the same Act  provides  that upon  receiving a request for  review  under Section  167, the Secretary to the Review Board shall notify the accounting  officer  of the  Procuring Entity  of the pending review from the Review Board and the suspension of the procurement proceedings in such  a manner  as may be  prescribed.

57.   It was submitted that the 1st respondent complied with the above provision of Section 168 of Act by sending notification  to the parties to the request  for review including the exparte  applicant  herein hence the applicant  cannot purport  to claim that it  was not notified as the notification was sent to its address as indicated  in the bid documents and that as such  the applicant  cannot claim  to have been  denied  the  right to a fair hearing   owing to alleged  lack of  notification.  Further, that neither were the rules of natural justice  breached.

58.   On the third issue  of whether  the  2nd respondent  breached the applicant’s  legitimate  expectation, the 2nd respondent submitted that the performance bond  as submitted  did  not  amount to any  implementation  of the same  by the  2nd respondent, since the  interested party  filed  a request for review which automatically discontinued the procurement process and as no contract has been executed  between the applicant  and the respondent.

59.   It  was also submitted that the 2nd respondent  is not   responsible  for the loss suffered by the  exparte  applicant  as it is not  privy to the agreements entered into between the applicant and  financial  institutions  of  its choice for funding or performance of the tender   and that since the tender  was contingent  upon the execution  of a contract  which  is not done, then notification  of an award  cannot form a  contract.  Reliance  was placed on Section  78(4)  of the PPAD Act.

60.   Reliance  was also placed on Republic  vs  Permanent  Secretary  of Mining Exparte Airbus Helicopters Southern Africa (PTY) Ltd  [2017] e KLRwhere the court held that there was no legitimate  expectation  where the public authority  had not  committed  itself  to do anything  for the applicant .

61.   The 2nd respondent contends that it should be allowed to proceed  and  execute  a contract  with the  successful bidder.  This court  was urged  to dismiss this case  with costs  to the 2nd respondent.

62.   The parties’ advocates also highlighted the submissions adopting their written submissions wholly.  The exparte applicant’s   counsel Mr  Malenya  submitted in a  rejoinder  that  Articles  47,48 and  50  of the Constitution had not been alluded  to by  the respondents and the interested  party.  Further that  Section  175(1) of the Act  does not  override Articles 47,48 and  50 of the  Constitution.

63.   On the  mode of communicating  to the exparte  applicant  that  a review had been filed by the interested party, it was  submitted that the respondent  had 2 telephone  contacts  for the  applicant  since they had previously had dealings of similar nature yet  chose not to  call the applicants and  yet the two had  done business  together and that  the  interested party  is known to the applicant.

64.   On delay,  it  was  submitted that the notification  reached  the applicants on 7th April  2017  which  was a Friday hence the applicant  had only 3 days away to the delivery of the decision by the 1st   respondent Review Board, within which time the applicant  could not  have done  anything about it.

65.   On the authority of JGN Marine  Services, it  was  submitted that  at page  20 thereof, it is clear that the court can interfere with the decision if  the tribunal commits  procedural impropriety  in its decision.  It  was  also submitted that mandamus  can also issue  because  the  notification  of award  of tender  at paragraph  2 states that the contract shall be  signed  upon submission of the  performance  guarantee in 14 days  and that the notification says “shall” not may’ which  former  is a mandatory  terminology.

DETERMINATION

66.   I have carefully considered all the foregoing and in my humble   view, the issues that flow for determination are:

a.   Whether these  proceedings  are tenable  for  being determined  outside  the  45 days  stipulated  in Section  175(3)  of the Public Procurement and Asset Disposal Act.

b.   Whether the applicant   was indolent in approaching this court.

c.   Whether the applicant had an alternative remedy of seeking for setting  aside or  review of the ruling  or decision  of the Review Board  before the Review Board instead of rushing  to court for  Judicial Review.

d.   Whether  the exparte applicant  was  accorded  any hearing  by the 1st respondent Review Board and  therefore  whether  its right to fair   administrative action  was  violated.

e.   Whether the applicant is entitled to the prayers sought.

f.   What orders should this court make.

g.   Who should bear the costs  of these proceedings.

67.   On  the first  issue of whether these proceedings are tenable  and therefore whether this court has any jurisdiction to hear and  determine this matter, as the determination was not made within 45 days from the date of the filing into court, in view  of Section 175(1) of the Public Procurement and Asset  Disposal Act, which stipulates that the High Court shall hear  and determine the Judicial Review application within  45  days  from  the date of filing in default, the decision of the Review Board shall be final and binding, it was contended more particularly by the interested party herein that the above provision are mandatory and therefore these proceedings are merely  an academic  exercise.

68.   In response, the applicant averred that  Section 175(3)  of the Act is not superior to the Constitutional  provisions  of Articles  47 on fair administrative action; Article 48 on access to justice and  Article  50(1)  on the right to a fair hearing.  Further, that this court had already pronounced itself  on the issue  of timelines given to the court by the very statute as not being tenable in the circumstances  under which the court  generally operates.

69.   It is  true that the  above issue  of the mandatoriness of Section  175   (3)  of the Public Procurement and Asset Disposal Act on timelines for hearing and determining Judicial Review  application within 45 days from the date of filing of the  application; and  Section  8 of the Fair Administrative Action Act, 2015  on the timelines  for determining proceedings  under the Act  have been  subject of several  Divisions  including  JR  502 and 503 of 2016 Republic vs Public Procurement Administrative Review Board & Another exparte Kleen Homes  Security  Services  Ltd, citing  and  relying heavily  on the Selesti Sistemi Integrati case where the court held  that courts  frown  upon provisions  like Section 175(3) and (5) of the Act  in order to preserve  the  jurisdiction  of the court  and that  the  provisions of the Public Procurement and Asset Disposal Act are not   to be compared  to the Elections Act which is  grounded  on Article 87(1) of the Constitution on timely disposal of electoral  disputes which provisions of the Constitution are hinged on democratic governance and as such, the timelines  are contemplated in the Constitution on account of the nature of  electoral disputes  and  historical perspectives.

70.   Historically,  Election Petitions used to drag on and on  from the time  of filing until the next  general election/electoral  cycle  of  5 years  and therefore  the makers of the  Constitution  and the Elections Act had to craft  an Article and statute stipulating   timelines of a maximum of  6 months  within  which the election  disputes  (other than  Presidential Election Dispute which is to be determined within 14 days from date of filing) are to be  determined.  Elections are a cycle.  They come once every 5 years.  Public procurement   and  claims of  infringement  of the constitutional right  to fair administrative action are the order  of the day  in this new  devolved  governance structure  and  the first time expansive  Bill of Rights under Chapter five of the Constitution.

71.   This Court, in the Kleen Homes Security Services Ltd case (supra) did not hesitate to declare that Section 175(3) of the Public Procurement and Asset Disposal Act, 2015 unconstitutional.

72.   In so doing, this court  emphasized  the importance of Judicial Review  as stated  in the Selex Sistemi integrati case by Nyamu J that:

“Judicial Review plays an important role in our society which is to check excesses, omnipotence, arbitrariness, abuse of power and also accountability and maintainance of constitutionalism and the rule of law.  As Chief Justice marshall powerfully argued in  Marbury  vs  Madison  5 vs 137[1803], Judicial Review provides  the best means of  enforcing the  people’s  will as declared in the written Constitution, without resort to  the drastic remedy of  revolution.  He warned  that, without  Judicial Review, the legislative  branch would enjoy a practical  and  real omnipotence  and would reduce  to nothing  what is deemed  the  greatest-improvement on political institution of a written Constitution.

The concerns raised in Marbury vs Madison are still applicable in our jurisdiction.  It should be observed that Judicial Review is the cornerstone of the doctrine of the doctrine of separation of powers and the principle of the rule of law.  On the clear provisions of the law, the High Court is the principal interpreter and guardian of the Constitution.

Section 65(2) of the Constitution provides:

……The High Court has powers of Judicial Review arising   from an Act and the 1938 English Act, and Order 53 of the Civil Procedure Rules.  This jurisdiction is distinguishable from the Constitutional Judicial Review.  The matter before the court fell  squarely  under ordinary Judicial Review, which is  a tool used by the High Court to ensure that public institutions exercise  power in accordance  with the law.

It is still within the jurisdiction of the High Court to review legislation in order to establish whether it complies with the Constitution.

Judicial Review also enables the High Court to review acts, decisions, and omissions of public authorities in order to establish whether they have exceeded or abused their power.

The essence of Judicial Review was posited by Sir Professor Wade as follows:

“The powers of public Authorities are essentially different from those of public persons.  A man making his will may, subject to any right of his dependants dispose of his property just as he may wish.  He may act out of malice or spirit of revenge but in law, this does not affect his exercise of power.  In the same way a private person has absolute power to allow whom he likes to use his laid (sic) regardless of his motives.  This is unfettered discretion.

But  a public body  may do more  of those things  unless sit  acts reasonably  and  in good faith  and  upon lawful  and  relevant   grounds s of public interest.

The whole conception of  unfettered  discretion, is  inappropriate to public  authority  which possesses  power solely   in order that it may use  then for public  good.

Michael Fordham in Judicial Review Hand book [1994] argues that Judicial Review allows the High Court to supervise the activities of public bodies.  It brings to the Judicial forum a wide range of subject matter and enjoys an increasing prominence in the English legal system.  The foregoing is true to the Kenyan scenario.”

An  on the question of whether or not  Section 100(4) now Section  175(3) of the Public  Procurement  and  Asset Disposal Act, 2005 ousted the jurisdiction of the court, the Learned Nyamu J  ( as he then  was ) stated  and I concur that;

“ouster of jurisdiction: The High Court’s  jurisdiction in Judicial Review matters inheres from the  Law Reform Act  and  also Articles  23, 165  (6) of the Constitution.  The Constitution is the Supreme Law of the laid  and the will  of the people  of Kenya.  See Article  2(1)  of the Constitution.  It is superior  to all laws  and  any law  that is inconsistent  with it is void to the extent  of the inconsistency.(4) the legality of the Constitution  cannot be  challenged  before any  court or  state organ (3) Section 100(4) of the Public Procurement and Asset Disposal Act, 2015 submits decisions of the  Review Board  to Judicial Review  by the High Court  but imposes a  true bar  of 30 days within which  the High Court must determine the Judicial Review otherwise the  decision of the Review Board  takes effect…..”

73.   In this  court’s own  decision in  the Kleen  Homes  Security  Systems  Ltdcase, the court stated:

“ Indeed, courts of law recognize that jurisdiction may be restricted by the Constitution ( see Article 165(5) (b) of the Constitution as  well as  other statutory  enactments  but they  also guard  their jurisdiction  jealously so at to do  justice, for a court of law  exists to do  justice  to the parties ( see  Article 159 of the Constitution).

It is also  the  same  Constitution which commands  the  court in their  exercise of judicial authority to ensure that  justice is not  delayed  (Article  159(2)(b).  Therefore, when the  court is faced  with such  a situation, it must deploy  balancing  techniques (sic) between what appears to be the ouster clause  and the challenged  decision so as to  ensure  that  access to justice  is not impeded.  It  must apply the principle of  proportionality, for a court of law does not  exist  to do an  injustice.”

74.   The court  also acknowledged  that however, where the statute  is framed in a manner that expressly ousts  the jurisdiction of the court, such provisions should be construed strictly and  narrowly  as was held in Smith vs East ELLOE  Rural District Council [1965] AC 736by Lord  Viscount  Simmonds that :

“…..Anyone  bred  in the tradition of the law is likely to regard with little sympathy legislative provisions for ousting the  jurisdiction  of the court, whether  in order  that the subject  may be  deprived  altogether of remedy or in order  that his grievance  may be  remitted to some other tribunal.”

75.   In the  Anisminic  vs Foreign  Compensation [1969] 1ALL ER 208 case,Lord Reid added his voice to the conversation  on ouster of courts jurisdiction and stated that:

“where the provision tending to oust the court’s jurisdiction is capable of two  meanings, that meaning shall be taken which preserves the ordinary  jurisdiction of the court.”

76.   In my humble view,  the intention of Section  175(3)  of the Act, having regard to the present constitutional order and dispensation, was never intended to deny the court an  opportunity  or to afford it  sufficient  time to  investigate  any challenge  to alleged  breach of the right  to fair administrative  action so as  to ensure  that the  public procurement  processes  are undertaken  in a transparent, accountable  and  fair manner.

77.   Article  227 of the Constitution  does not  stipulate  to the fact of  time limit within which Judicial Review   in public  procurement  matters  should be  heard and  determined  unlike Article 87(1)  of the Constitution   on resolution of electoral disputes.

78.   The Article 227(1) guarantees a system that is fair, equitable, transparent, competitive and cost effective. It therefore follows that in order to accord justice to all as  guaranteed  in Article 48  of the Constitution  and  a fair hearing  as stipulated  in Article 50(1) of the Constitution, such cases, owing  to their  very nature  should be given priority  and  heard and  determined  within reasonable  period  of time  in view  of the funds that  may be  tied up  in the procurement process.

79.   However, expedition alone in determining cases cannot  override justice and if that were to be the case, then what matters  is expedition, and therefore  illegalities  and  injustice, will be  countenanced by the court merely  because an offending  party is overzealous to complete the development project  which might go counter the objectives of the Act in achieving  and promoting integrity, fairness, transparency and accountability  in the public  procurement  and  asset disposal  procedures.

80.   Deserving litigants will also suffer injustice  owing to the  limitations  placed on the court to restrict its judicial discretion which limitation is also a tool  by the  legislature to chain the  judicial  arm of government thereby arresting operational judicial independence  in the determination of disputes.

81.   In addition, there is a conflict between Section 175(3) of the Act, and  Sections  8 and  9  of the Law Reform Act and  Order  53 of the Civil Procedure Rules  with the latter  provision making no stipulations  on time limits for determination of Judicial Review proceedings  challenging  public  administrative  decisions; and  Section  8 of the Fair  Administrative Action Act  2015 which determines  the time limit to 90 days.  A decision made by Public procurement Administrative Review Board is an administrative decision  challengeable by Judicial Review  under the Fair Administrative Action Act.

82.   And since under the Law Reform  Act and order 53 of the  Civil Procedure Rules leave must first be obtained to commence  Judicial Review  proceedings, the  ambiguity  in Section 175(3) (5) is, when does time  begin to  run?

83.   This  question is posed because  the  Statutes and Rules are  silent, whereas under  the  Fair Administrative Action Act, 2015, there is no requirement for leave to institute Judicial Review  proceedings.

84.   For all the above  reasons, I have  no reason to depart from the Kleen  Homes(supra) case and  Selex Sistemi Integrati case and  distinguish the decisions in  Supreme Court  Petition  10/2013  Ali H. Joho & Another vs Suleiman Said Shabhal & 2 Others [2014] e KLRwhich mater was an election petition concerning the constitutional dictates for timely settling of electoral disputes.

85.   In addition the  case of Cook “N” Lite  Ltd vs  Silvester Mutia Jonathan (supra) citing Maitha vs Said & Another CA  292/98concerned  the  time limited  for exercising  the right of appeal  by a  party and  not limiting the court to determine  a matter within a stipulated period like  in this case.

86.   Accordingly, I find and hold that the proceedings herein are tenable  and  no time lapse can invalidate  them.  Moreso, I had  deliberated  on this matter on 19th September  2017  and  made a decision which  was not  challenged  hence  the subsequent raising of the same is not justified in the circumstances and therefore it is Resjudicata.

87.   On the second  issue  of whether the applicant was indolent,the interested party claims that the applicant rushed to this court after inordinate  delay and that the court declined to accord it stay on the  grounds  that the  applicant  dragged  its feet.

88.   Further, that the applicant admitted receiving letter of notification of the  review hearing, by the  1st respondent Review Board  a day after  the hearing  which is unproven but that it never  did anything to arrest the delivery of the ruling  hence it  cannot  cry foul and  claim that  it  was not accorded  a hearing yet it failed to act promptly to secure the same.

89.   I have considered the argument  in line with the  proceedings  for  28th April 2017 wherein the court noted that although the  application for leave had been filed within 14 days from the date of the decision made on 13th April 2017, the applicant  had pulled its feet  until the  last day before  challenging  the Review Board’s  decisions  and so  I declined to grant  stay.

90.   In my humble view, the delay alluded to by the court is the  period between the date that  the  decision was taken  to the time of filing the application for leave and stay, not that the  application  was  filed out of time.

91.   In addition, the court, did not say that the application was filed too late.  It stated that albeit the application was filed within 14 days stipulated in the Act, there was no justification given for delay in filing it earlier than the last day when they sought a stay which STAY the court declined but in the ensuing proceedings, the court was persuaded to grant the stay which is still in force.

92.   I therefore find and hold that the application which was filed within time cannot be faulted at the substantive stage for being filed out of time or too late as to attract penal consequences from the court.

93.   The next and third issue is whether the applicant had an alternative remedy of seeking for setting  aside or  review of the ruling  or decision  of the Review Board  instead of rushing  to court for  Judicial Review.

94.   According  to the interested party, the  applicant  upon learning  that the request for review had proceeded exparte and that it  had not been made a party  to the proceedings thereof, it should have applied for setting aside of the ruling or to stay the  delivery of that ruling  instead of waiting until after the  decision  WAS RENDERED for it  to challenge  the decision  in court.

95.   The question therefore is whether the Review Board  had powers to stay its  decisions  or to  entertain an application to set aside  the  decision which  was  made exparte  without according  the  applicant  a hearing as it  was not a party to the Request for Review.

96.   It should be noted that a tribunal or quasi-judicial body or authority has no inherent power.  Its power  must be  derived  from statute  or Rules and that power  is specific as stipulated  in Section 173 of the Public Procurement  and  Asset Disposal Act, 2015  and the  2006 Regulations.

97.   I have combed through Public Procurement  and  Asset Disposal Act, 2015  and the 2006  Regulations  and  I have not come  across  any provision stipulating that the Review Board can stay  delivery of its decision or even set aside or review its own decision to allow a party  who ought to have  been enjoined  to the review proceedings to challenge  the Board’s  proceedings or decision  before the Board itself.

98.   In other words, I have not encountered any provision in the Public Procurement and Asset Disposal Act akin to the provisions   under Order 10 of the Civil Procedure Rules  on  varying,  reviewing or setting  aside  of  exparte  judgment  in default  of appearance  of  or  for non-attendance by a party, or even recalling  or stay of delivery  of judgment.

99.   In  addition, what  is not disputed  is that the request  for review, as seen from the proceedings/decision of the Review Board, though  affecting  the rights  and  interests  of the applicant  who  was initially awarded the tender as a successful bidder, deliberately  omitted the exparte applicant as a party and no reason has been advanced for doing so, especially  in the obvious situation that the Act makes it mandatory for a successful tenderer to be made a party to the request for review, and the fact that any decision of the Review Board on the request by any other aggrieved party would no doubt affect the exparte applicant’s  interests since it  had been  awarded  the tender  and it even went ahead  to submit   a performance bond  to the  procuring  entity, oblivious of  the ongoing  proceedings before the  Review Board.

100.   Section 170 of the Public Procurement and Asset Disposal Act, 2015   sets out the parties to a review and mandates that such parties shall be:

a)   The person  who requested the  review;

b)   The accounting  officer of a Procuring Entity;

c)   The tenderer notified d as successful by the procuring  entity; and

d)   Such other persons as the Review Board may determine.

101.   Accordingly, there was no discretion on the part of the  Review Board to stay or set aside its own decision or to  exclude the exparte applicant herein from being  a party before  the  Review Board  as the exparte applicant was the successful bidder in the concluded  procurement process  leading to a request  for  review.

102.   In the same vein, the Review  Board did not, therefore, have  any statutory power to receive, hear and consider and  determine  a request for review which request excluded the exparte applicant  successful bidder being  a party.

103.   My view is that it was not sufficient for the Review Board to merely notify the exparte applicant that there were review  proceedings lodged  before it  by the interested  party.  This is so because  the  exparte applicant  had every right to be enjoined  to those  review  proceedings  and  not as  a periphery  party  but as a major player since the  award that was made to it as  a successful bidder prompted the  interested party to approach  the  Review Board  seeking to set aside that  award.

104.   The exparte applicant  had every  right conferred by Section 170 of the Act  to participate as a substantive party to the request  for review and there are  no two ways to this requirement which is coached  in mandatory  terms.

105.   Infact, this court wonders why the Review Board merely  notified the applicant herein of  the hearing  date of the review proceedings, yet the applicant was not made a party to the review, and only for the applicant to receive  the hearing  notice a  day after  the hearing.

106.   There is sufficient evidence adduced by the exparte applicant, to show that the applicant received that notice on 7th April 2017 which evidence is believable.

107.   On the other hand, there is no explanation given why the Review  Board and  the Procuring Entity who undeniably has the email and  telephone  contacts for the applicant  and which telephone number was written on the posted letter, could not be used to call the applicant  and it of the proceedings  filed challenging  the  award  of tender  made in favour of the applicant, and calling on the applicant to participate in the request for review.

108.   In my humble view, from the conduct of the Review Board, the Procuring Entity and interested party. It can be inferred  that they  were  all in a calculated  move  to oust  the  exparte  applicant from participating in the Review proceedings and therefore  from the seat of justice  or judgment  seat, without  according  it a hearing.

109.   Accordingly, I find and hold that the  proceedings before the Review  Board were illegal and irregular as they were conducted  in total breach of the mandatory statutory  provisions.  The Review Board and the Interested Party  had no discretion  to oust the applicant successful bidder from  participating fully as a substantive party  in the  request for review proceedings. Such proceedings therefore, cannot stand.  They are must be quashed as they are a nullity ab initio. Moreso, where it is apparent that the request for review proceedings appear to have been deliberately conducted in mystery so as to oust the exparte applicant from the seat of justice, I find that they were not conducted in a transparent manner and therefore they lack integrity. They are a nullity.

110.   Article 50(1) of the Constitution is clear that:

“ Every person the 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.

111.   This court has authority conferred on it under Article 23 of the Constitution to uphold and enforce the Bill of Rights.  The rights to a fair hearing and to fair administrative action as stipulated in Articles 50(1) and 47 of the Constitution are fundamental human rights which are enforceable by this court.

112.   Where  it is clear as is the  case here that  the  applicant  was  not  accorded a hearing let alone a fair hearing, and was never  accorded an opportunity to be heard by the Review Board,  which is  under a statutory and  constitutional duty  to apply  the Rules of natural justice in the conduct of  its business, this court must of necessity intervene, when called upon to do so, to uphold  the  rule of law  and  human  rights.

113.   The Review Board is an administrative statutory body and in exercising its jurisdiction, makes administrative decisions. Article 47(2) of the Constitution is clear that if a right or fundamental  freedom of a person has been or is likely to be  adversely  affected by administrative  action, the person has the right to be given written  reasons for  the action.

114.   In the case, it is obvious that the administrative action by  the Review  Board  adversely affected the award  of tender  to the exparte applicant yet the latter was deliberately never  made a  party to those  proceedings.

115.   Accordingly, I have no difficulty in finding that the applicant herein was condemned unheard. The applicant was by no  means   entitled  to, not only  notice of a claim that  was likely to affect its interests in the awarded tender, but to know what evidence was being  peddled  against it; it had the right to  present  its case and the right  to counsel as stipulated in Section 4 of the Fair Administrative  Action Act, 2015  and  more  importantly, the right  to be heard  by an  independent, impartial tribunal ( see Judicial Service Commission  vs Mbalu  Mutava  & Another [2015] e KLR.

116.   In this case, the applicant  was never  made a party to the  review proceedings yet it was not only a necessary party but a mandatory party; it  was  never notified  in sufficient  time of  the time, place and nature  of the  hearing.  The absence  of all the  above features  make this case a suitable candidate  for this court’s  interference  with the  Review Boards decision  which decision as I have stated above is a nullity for want of observance of the  mandatory provisions  of  Section 170 of the Public  Procurement and Asset  Disposal Act, 2015.

117.   And the appropriate remedy in this case, for dealing with such an obvious illegality is none other than Certiorari,  calling  into this  court for  purposes of quashing and  thereby quashing  the entire  proceedings and  decision of the Review Board  made on  13th April  2017.

118.   I must mention that  the 2nd respondent’s contentions and submissions are defeatist.  They  white wash the mandatory  provisions of Section 170 of the Act by selectively citing  Section 168  of the Act  which provides for notification of the accounting officer of the Procuring Entity of the pending  review  before the Review Board and  the suspension of the procurement  proceedings in such manner  as may be prescribed. I say so because in citing  the above  provision of Section 168  of the Act, the 2nd  respondent  procuring entity says  nothing  about Section 170  of the Act. Provisions of the law must be read as a whole and not in isolation to suit a party’s case and that is exactly what the procuring entity has done in this case, to escape the wrath of colluding with the interested party and the Review Board to oust the exparte applicant from the seat of justice.

119.   in the end, i find and hold that the  exparte applicant was denied the opportunity to be heard by the Review Board and therefore its right to a fair administrative action was denied and violated.

120.   The next issue is what orders should this court make?The exparte applicant sought for Certiorari to call into this court for purposes of quashing and to quash the decision of the Review Board.

121.   I have already found that the applicant was denied a hearing and that he had no other alternative remedy for ventilating its grievances and that it was a mandatory party to the Request for Review proceedings. Further, that the review Board’s proceedings and therefore the decision impugned was a nullity for being illegally and irregularly conducted. That being the case, I have no hesitation in finding and holding that the applicant has satisfied this court that it is entitled to the judicial review remedy of Certiorari to wipe the slate clean.it is as if the Review proceedings before the Review Board never took place. For the foregoing reasons, those proceedings before the Review Board and its decision are all hereby brought before this court for purposes of quashing and are hereby quashed.

122.   The exparte applicant then proceeded to urge this court to grant it mandamus, compelling the procuring entity 2nd respondent to sign a contract with the exparte applicant successful bidder, on account that the applicant had a legitimate expectation that having been a successful bidder and having been notified of the award and having submitted that performance  guarantee, it expected to sign a contract for the services tendered.

123.   It is a requirement that for the doctrine of legitimate expectation to be successfully invoked, the expectation must in the first place be legitimate “in the sense of an expectation which will be protected by law” See R vs. Department for Education and Employment, ex p Begbie [2000] 1 WLR 1115, 1125C-D. This was the view adopted in Royal Media Services Limited & 2 Others vs. Attorney General & 8 Others [2014] eKLR where it was held that:

“...legitimate expectation, however strong it may be, cannot prevail against express provisions of the Constitution. If a person or a statutory body promises a certain relief or benefit to a claimant or undertakes to do something in favour of a claimant but in a way that offends the Constitution, the claimant cannot purport to rely on the doctrine of legitimate expectation to pursue the claim or the promise.”

124.   In this case, the interested party had an unfettered right to challenge the decision of the Procuring entity which decision awarded the tender to the applicant. The only fault and which fault has led to the quashing of the proceedings in the request for review is that it never enjoined the applicant to those request for review proceedings. It is not that the procuring entity refused to enter into the contract thereby failing to conclude the procurement process.

125.   But since there was a request for review challenging the award in favour of the applicant, the applicant, in my humble view, cannot claim a legitimate expectation to be sign a contract with the procuring entity since the procuring entity did not unilaterally terminate the procurement proceedings. It therefore follows that albeit this court has found it befitting to quash the proceedings and decision of the Review Board, as the procuring entity did not terminate the procurement process, and as the Review Board and the interested party failed to involve the applicant in the Request for review proceedings, it would not be appropriate to compel the procuring entity to sign a contract as if the proceedings before the Review Board were determine in favour of the exparte applicant.

126.   This case can be distinguished from that of Republic v Principal Secretary Ministry of Mining Ex-parte Airbus Helicopters Southern Africa (PTY) Ltd [2017] eKLRbecause in the latter case, it was the procuring entity that terminated the procurement process after awarding the tender to the exparte applicant without giving any reasons for such termination, while relying on sections 36 and 68 of the Public Procurement and Asset Disposal Act. The court, Odunga J issued judicial Review orders of mandamus compelling the Respondent to, within 30 days of service of the decision, to notify the applicant of the procurement process between it and the applicant. In default of compliance, an order of mandamus was issued forthwith compelling the Respondent to execute the formal contract in respect of the Tender No. MOM/T/2015-2016 dated 9/11/2015 for the Supply, Delivery and Commissioning of a new helicopter.

127.   In this case, since the proceedings before the review Board are the ones that occasioned a miscarriage of justice for the exparte applicant, it would be misplacement for this court to compel the procuring entity to sign a contract as that would then disentitle the interested party of the right to challenge the award made by the procuring entity. This is a court of justice and a court of law does not exercise judicial authority to occasion an injustice to a party or to oust a party from the judgment seat.

128.   It is for those reasons that I would invoke the provisions of section 11(h) of the Fair Administrative Action Act, 2015 and having set aside /quashed the administrative action made by the Review Board, I hereby remit the request for review matter as filed by the interested party for reconsideration by the Review Board administrator, with  directions that the exparte applicant herein be enjoined to the request for review  by the interested party to fully participate in the said proceedings which shall be expedited and considered on priority basis and in accordance with the provisions of the Public Procurement and Asset Disposal Act, 2015 and Regulations, 2006.

129.   Having quashed the decision of the Review Board, and in line with section 175(5) of the Public Procurement and Asset Disposal Act, 2015 order that each Party shall bear their own costs of these judicial Review proceedings.

130.   Those shall be orders of this court.

Dated, signed and delivered in open court at Nairobi this 25th day of January, 2018

R.E ABURILI

JUDGE