Republic v Public Procurement Administrative Review Board; Blue Sea Services Limited (Exparte Applicant); Managing Director, Kenya Ports Authority & 15 others (Interested Parties) [2023] KEHC 25082 (KLR)

Republic v Public Procurement Administrative Review Board; Blue Sea Services Limited (Exparte Applicant); Managing Director, Kenya Ports Authority & 15 others (Interested Parties) (Judicial Review E028 of 2023) [2023] KEHC 25082 (KLR) (8 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25082 (KLR)

Republic of Kenya

In the High Court at Mombasa

Judicial Review E028 of 2023

OA Sewe, J

November 8, 2023

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW ORDER OF CERTIORARI AND IN THE MATTER OF THE DECISION BY THE PUBLIC PROCUREMENT ADMINISTRATIVE REVIEW BOARD ON 1ST SEPTEMBER 2023 THAT THE REQUEST FOR REVIEW FILED ON 11TH AUGUST, 2023 WITH RESPECT TO TENDER NO. KPA/076/2022-23/ADM FOR PROVISION OF HOUSEKEEPING/CLEANING SERVICES (REFERENCE GROUPS) BE DISMISSED FOR WANT OF JURISDICTION AND IN THE MATTER OF THE SAID DECISION BY THE RESPONDENT FAILING TO ADHERE TO THE PRINCIPLES OF TRANSPARENCY, ACCOUNTABILITY AND CREDIBILITY IN THE TENDERING PROCESS AS REQUIRED BY ARTICLES 10, 47, 201 AND 227 OF THE CONSTITUTION OF KENYA, 2010 AND THE PUBLIC PROCUREMENT AND ASSETS DISPOSAL ACT, 2015 AND IN THE MATTER OF THE SAID DECISION BY THE RESPONDENT BEING UNREASONABLE AND IRRATIONAL AS THE RESPONDENT HELD THAT IT HAD NO JURISDICTION TO DETERMINE THE SAID REQUEST FOR REVIEW AND IN THE MATTER OF THE APPLICANT’S EXERCISE OF A STATUTORY RIGHT GRANTED BY SECTION 175 OF THE PUBLIC PROCUREMENT AND ASSET DISPOSAL ACT TO LODGE A JUDICIAL REVIEW APPLICATION FOLLOWING THE DECISION BY THE RESPONDENT

Between

Republic

Applicant

and

Public Procurement Administrative Review Board

Respondent

and

Blue Sea Services Limited

Exparte Applicant

and

Managing Director, Kenya Ports Authority

Interested Party

Kenya Ports Authority

Interested Party

Liga Holdings Limited

Interested Party

Techsam Building & General Services

Interested Party

Vegmas Limited

Interested Party

Bek (K) Limited

Interested Party

Kimever Limited

Interested Party

Kituyi Juniors Enterprises

Interested Party

Aweanya Limited

Interested Party

Ochean Bays Investment

Interested Party

Regian Ventures

Interested Party

Al-Nahil Construction Co Limited

Interested Party

Keyron Logistics Limited

Interested Party

Still King Enterprises

Interested Party

Devoted Steward Limited

Interested Party

Halen Services

Interested Party

Judgment

[1]The Notice of Motion dated 25th September 2023 was filed by the Ex Parte Applicant (hereinafter, “the applicant”) pursuant to Sections 1A, 1B and 3A of the Civil Procedure Act, Chapter 21 of the Laws of Kenya, Sections 3 and 175 of the Public Procurement and Asset Disposal Act, 2015 as well as Order 53, Rules 1, 2 and 3 of the Civil Procedure Rules, 2010. The applicant thereby prayed that:(a)An order of certiorari be issued to quash the decision made on the 1st September 2023 by the respondent in PPARB Application No. 57 of 2023: Blue Sea Services Limited v Managing Director, Kenya Ports Authority & Others; and consequently that the award made on 17th July 2023 by the 1st and 2nd interested parties with regard to Tender No. KPA/076/2022-23/ADM for the Provision of Housekeeping/Cleaning Services (Preference Groups) at the Port of Mombasa, be quashed.(b)That the costs of the application be provided for.

[2]The application was premised on the grounds that, sometime in January 2023, the 1st and 2nd respondents invited bids for Tender No. KPA/076/2022-23/ADM for the Provision of Housekeeping/Cleaning Services (Preference Groups) at the Port of Mombasa. The applicant and the 3rd to 16th interested parties were among the tenderers that submitted their bids, in respect of which a Notification of Award dated 17th July 2023 was made. The successful bidders turned out to be the 3rd to 16th interested parties. The applicant’s bid was consequently rejected and it was accordingly notified of the decision via email on 30th July 2023.

[3]Being dissatisfied with the decision of the 1st and 2nd interested parties, the applicant filed a Request for Review before the respondent, being PPARB Application No. 57 of 2023: Blue Sea Services Limited v Managing Director, Kenya Ports Authority & Another. The Request for Review was heard and dismissed by the respondent on 1st September 2023 at the preliminary stage for want of jurisdiction. The applicant contends that the decision is fundamentally flawed in so far as the respondent held that the applicant lacked the locus standi to file the said Request for Review. The applicant contends that the decision amounts to abdication of duty on the part of the respondent and is a clear violation of the letter and spirit of Section 167 of the Public Procurement and Asset Disposal Act (PPADA) as read with Regulation 203 of the Public Procurement and Asset Disposal Regulations (PPADR).

[4]Further to the foregoing, the applicant averred that the impugned decision amount to a reward for acts of illegalities committed by the 1st and 2nd interested parties; and therefore that the decision amounts to a violation of Articles 10, 47, 50, 201 and 227 of the Constitution. The applicant further asserted that the respondent ought to have stood firmly in defence of the legality and regularity in public procurement matters by according the applicant a hearing on the merits. In support of the aforementioned grounds, the applicant relied on the Verifying Affidavit of Benson Nyangeh Maina sworn and filed at the leave stage as well as the Statement of Facts accompanying the application for leave.

[5]In the said Verifying Affidavit, the applicant explicated the grounds aforementioned and annexed several documents in support; including copies of the Notification of Award, Request for Review and the decision of the respondent. At paragraph 7 thereof, the applicant averred that it was given 14 days from the date of receipt of the Notification of Award to seek redress in accordance with Section 167 of the PPADA; and therefore that it had up to 14th August 2023 to file the Request for Review. Thus, the applicant considered it surprising that the respondent held that it had no jurisdiction to entertain the review. Accordingly, the applicant posited that its application is well-merited and ought to be allowed.

[6]The respondent opposed the application. It relied on the affidavit sworn on 19th October 2023 by its acting Secretary, James Kilaka. Thus, the respondent confirmed that on the 11th August 2023, the applicant commenced the proceedings in PPARB Application No. 57 of 2023 by way of Request for Review. The application sought to challenge the decision of the 1st and 2nd interested parties in respect of Tender No. KPA/076/2022-23/ADM for Provision of Housekeeping/Cleaning Services (Preference Groups). The respondent further averred that, on the same date of 11th August 2023, it sent notifications of the Request to the 1st and 2nd interested parties and invited them to file their responses; which was done on 15th August 2023.

[7]The respondent also mentioned that the 1st and 2nd interested parties filed a Notice of Preliminary Objection dated 17th August 2023 challenging its jurisdiction to hear the Request for Review, as well as the locus standi of the applicant to file the Request for Review. It further averred that, a notice was similarly sent to all the tenderers who had participated in the subject tender requesting them to file responses to the Request for Review; whereupon the 4th, 5th, 6th, 7th, 8th, 9th, and 12th interested parties filed their responses. They likewise objected to the respondent’s jurisdiction on similar grounds of time bar and locus standi. The respondent further explained that the Request for Review was thereafter heard virtually and a decision rendered on the 1st September 2023 via email. In its decision, the respondent upheld the Preliminary Objection and accordingly struck out the Request for Review.

[8]At paragraph 21 of its affidavit, the respondent averred that it has continued to uphold procurement procedures as required by law and has, in the discharge of its mandate, promoted integrity and fairness of those procedures and processes. It further deposed at paragraph 22 that, in handling the subject Request for Review, it observed the rules of natural justice and ensured that all parties to the application were granted an opportunity to be heard on all issues that emerged from the parties’ pleadings, cases and confidential documents submitted pursuant to Section 67 of the Act. Accordingly, it was the assertion of the respondent that the applicant has failed to demonstrate any elements of illegality, irrationality, procedural impropriety and/or unfairness in the manner in which it considered and interrogated the evidence, documents, pleadings and information before it, and in arriving at its decision dated 1st September 2023. Accordingly, the respondent prayed for the dismissal of the Notice of Motion dated 25th September 2023 with costs.

[9]The 1st and 2nd interested parties, on their part, relied on the Replying Affidavit sworn on 9th October 2023 by its Principal Procurement Officer, Moses Sirgoi. They explained that the subject tender, Tender No. KPA/076/2022-23/ADM for the Provision of Housekeeping/Cleaning Services (Preference Groups) was publicly advertised in the 2nd interested party’s website in accordance with the provisions of Section 96(2) of the PPADA; and that the deadline for tender submission was on 9th March 2023 at 1000hrs. [10]The 1st and 2nd interested parties further averred that a total of 283 tenders were accordingly received, opened and evaluated in accordance with the applicable provisions of the PPADA, and an award made to the 3rd to 16th interested parties. At paragraph 10 of their Replying Affidavit, the 1st and 2nd interested parties deposed that the applicant’s bid was disqualified for failure to have its bid documents certified by an Advocate or Commissioner for Oaths as required; and that it was informed accordingly.

[11]The 1st and 2nd interested parties further confirmed that a Request for Review was filed by the applicant on 11th August 2023; and that they opposed the same by filing a response on 17th August 2023 as well as a Notice of Preliminary Objection challenging the jurisdiction of the Board. They further averred that their Preliminary Objection was upheld and the Request for Review struck out on 1st September 2023. They, thus, urged for the dismissal of the instant application, contending that the applicant has failed to demonstrate that the impugned decision is tainted with illegality, irrationality or procedural impropriety.

[12]As for the 4th 5th, 7th, 8th, 9th, and 12th interested parties, they relied on the Notice of Preliminary Objection dated 2nd October 2023, filed on their behalf by M/s Sigano & Omollo LLP Advocates, and contended that:(a)The applicant’s Notice of Motion is time-barred having been filed outside the statutory timelines provided for under Section 175(1) of the PPADA.(b)The applicant has neither pleaded nor shown itself as a person aggrieved within the meaning of Section 175(1) of the PPADA hence the applicant lacks locus standi to institute and continue the instant application.(c)This suit is hopelessly incompetent and bad in law as the respondent lacks legal capacity to be sued in its own name having regard to the express provisions of Section 27(1) of the PPADA.(d)The Court lacks the requisite jurisdiction to take cognizance of, hear or determine the application.(e)The application has been filed and served contrary to the express provisions of Order 53 Rule 3(2) of the Civil Procedure Rules.

[13]On behalf of the 6th interested party, Grounds of Opposition were filed by the law firm of M/s Okubasu & Munene Advocates dated 19th October 2023. I note however that the grounds are in respect of the application for leave; which application was disposed of ex parte on 20th September 2023.

[14]The application was canvassed by way of written submissions which were highlighted on 19th October 2023. The basic submission of the applicant was that the respondent misinterpreted Section 167 of the PPADA and hence arrived at an erroneous decision. It relied on the letter dated 17th July 2023 from the 1st and 2nd interested parties which was sent via email on 31st July 2023 as the first communication, notifying it of the reason for disqualification. Hence, the applicant argued that it had the option of filing its Request for Review within 14 days of occurrence of the breach in the tendering process or within 14 days of the notification of the results of the award.

[15]The applicant’s counsel underscored the word “or” as used in Section 167 of the PPADA and submitted that since the remedy of judicial review is currently anchored in the Constitution, the Court is entitled to look at the merits of the matter with a view of ascertaining whether or not the impugned decision is rational. To augment its argument, the applicant relied on Independent Electoral and Boundaries Commission (IEBC) v National Super Alliance (NASA) Kenya & 6 Others [2017] eKLR, Republic v K.S. Bunyasi, the Principal, Hospital Hill High School & 3 Others, Ex Parte A W O (minor suing through his father and next friend N O) and Another [2019] eKLR and Selex Sistemi Integrati v The Public Procurement Administrative Review Board & Others [2008] eKLR, among other decisions. In essence, the applicant urged the Court to find that the interpretation given to Section 167 of PPADA by the respondent is irrational; and therefore that it is only proper and just that the said decision be nullified and the respondent be directed accordingly.

[16]The respondent relied on its written submissions dated 19th October 2023. It proposed a single issue for determination, namely, whether the impugned decision was tainted by illegality, irrationality, procedural impropriety or unfairness. The cases of Pastoli v Kabale District Local Government Council & Others [2008] 2 EA 300 and Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1 were similarly cited for the proposition that it would be an act of illegality for the respondent to proceed and hear a matter in which it lacked jurisdiction. Thus, it was the contention of the respondent that, in holding that it lacked jurisdiction, it was guided by the doctrine of Kompetenz-Kompetenz, and added that no court or quasi-judicial tribunal would engage in the determination of a dispute before ascertaining that it had the requisite jurisdiction to do so.

[17]Further to the foregoing, the respondent submitted that the principles governing the grant of judicial review orders as explicated in the cases of Republic v Kenya National Examination Council, Ex Parte Gathenji & Others, Civil Appeal No. 266 of 1996; Municipal Council of Mombasa v Republic & Umoja Consultants Ltd [2002] eKLR and Republic v Kenya Revenue Authority, Ex Parte Yaya Towers Limited [2008] eKLR, are still valid; and therefore the application lacks merit and ought to be dismissed with costs to the respondent.

[18]On behalf of the 1st and 2nd interested parties, written submissions dated 18th October 2023 were filed herein by the firm of M/s Robson Harris Advocates LLP Advocates. They proposed the following issues for determination:(a)Whether the Court has jurisdiction to hear and determine the instant judicial review proceedings;(b)Whether the respondent has capacity to be sued in its own name given the provisions of Section 27(1) of the PPADA;(c)Whether the application dated 25th September 2023 is merited and deserving of the orders sought; and(d)Costs.

[19]Thus, the 1st and 2nd interested parties submitted that, in so far as the instant proceedings have been brought under Order 53 of the Civil Procedure Rules, they are only valid from the date leave was granted; and therefore since the decision sought to be reviewed was made on 1st September 2023, the application ought to have been lodged by 15th September 2023. Accordingly, the 1st and 2nd interested parties urged the Court to find that the application dated 25th September 2023 is stale. They relied on Aprim Consultants v Parliamentary Service Commission & Another, Civil Appeal No. E039 of 2021, among other decisions, to augment their submission that the timelines in public procurement disputes are cast in stone; and therefore that upon the lapse of the timelines provided for, the jurisdiction of the court ceases.

[20]Further to the foregoing, the 1st and 2nd interested parties submitted that the judicial review court examines various aspects of an act, omission or decision, including whether the body or authority whose decision was being challenged had the authority to make the decision; whether it abused or misused the authority; whether it could have departed from the procedures which, either by statute or at common law as a matter of fairness, it ought to have observed; and whether the decision itself is perverse, or irrational or grossly disproportionate to the circumstances of the case.

[21]Thus, the 1st and 2nd interested parties summarized the grounds for judicial review to be illegality, irrationality, procedural impropriety and proportionality. They relied on the case of Saisi & 7 Others v Director of Public Prosecutions & 2 Others (Petition 39 & 40) of 2019 (Consolidated) [2023] KESC 6 (KLR (Civ) for the caution that:“The intention [of anchoring judicial review as a remedy in the Constitution] was never to transform judicial review into full-fledged inquiry into the merits of a matter. Neither was the intention to convert a judicial review court into an appellate court.”

[22]In addition, the 1st and 2nd interested parties relied on a decision of this Court, namely Mombasa Judicial Review Case No. E025 of 2023: Republic v Public Procurement Administrative Review Board, Accounting Officer, Kenya Ports Authority and Others, Ex Parte Space Contractors & Suppliers Investment Limited and urged that a similar verdict be returned in the instant matter. On the merits of the application, counsel for the 1st and 2nd interested parties relied on Pastoli v Kabale District Local Government Council & Others (supra), Republic v Public Procurement Administrative Review Board & 2 Others, Ex Parte Pelt Security Services Limited [2018] eKLR, Republic v Public Procurement Administrative Review Board & 2 Others, Ex Parte Numerical Machining Complex Limited [2016] eKLR in defending the impugned decision. Their assertion was that the respondent’s decision cannot be faulted on the aforementioned parameters of illegality, irrationality or procedural impropriety.

[23]The 4th, 5th, 7th, 8th, 9th, and 12th interested parties (hereinafter, “the interested parties”) relied on their written submissions dated 18th October 2023. In their view, the issues for determination are:(a)Whether the applicant is a “person aggrieved” within the meaning of Section 175(1) of the PPADA and whether the applicant has locus standi to commence and continue the judicial review proceedings herein, and the effect thereof.(b)Whether the application has been filed outside the statutory timelines under Section 175(1) of the PPADA, and the effect thereof.(c)Whether the respondent has capacity to be sued in its own name having regard to the express provisions of Section 27(1) of the PPADA, and the effect thereof on the competence of the proceedings as filed herein.(d)Whether the applicant has demonstrated circumstances which warrant the Court to exercise its judicial discretion in favour of granting the judicial review order of certiorari sought herein.

[24]Thus, the interested parties submitted that the applicant has neither pleaded nor attempted to show itself as a “person aggrieved” as contemplated in Section 175(1) of the PPADA, and therefore lacks locus standi to institute the application. The cases of Kenya Ports Authority & Another v Rhombus Construction Company & 2 Others (Mombasa Civil Appeal No. E11 of 2021) and James Oyondi t/a Betoyo Contractors & Another v Elroba Enterprises Limited & 8 Others [2019] eKLR were cited by them in urging the Court to find that it lacks the jurisdiction to entertain the instant application.

[25]The interested parties further submitted that, from the standpoint of Section 175(1) of the PPADA, the application is time-barred; granted that the decision of the tribunal was made on 1st September 2023. They pointed out that the applicant chose to approach the Court via Order 53 of the Civil Procedure Rules, which entails a two-step approach; namely, the leave stage and thereafter the substantive application stage. It was therefore their argument that the substantive application could only be deemed duly filed after leave was granted. In support of this proposition, the interested parties relied on Republic v Communications Commission of Kenya, Ex Parte East Africa Television Network Limited [2001] eKLR.

[26]On whether the respondent, as an unincorporated body has the capacity to sue or be sued, the interested parties relied on Section 27(1) of PPADA and the case of Finmax Community Based Group & 3 Others v Kericho Technical Institute [2021] eKLR and urged the Court to find that the suit is untenable. The interested parties then went on to submit that, in any event, the applicant has failed to demonstrate that the circumstances herein would warrant the grant of the discretionary orders sought by it. In particular, they submitted that the applicant has failed to demonstrate that the decision of the respondent was so irrational that no reasonable body, properly directing itself to the applicable law and the facts, could have reached such a decision. They accordingly urged the Court to dismiss the application with costs to the 4th, 5th, 7th, 8th, 9th, and 12th interested parties.

[27]On behalf of the 6th interested party, written submissions dated 19th October 2023 were filed herein by M/s Okubasu & Munene Advocates. The 6th interested party thereby proposed a single issue for determination, namely, whether the application dated 25th September 2023 is merited and deserving of the orders prayed for therein. On the authority of Saisi & 7 Others v Director of Public Prosecutions (supra), the 6th interested party took the posturing that the Court has no jurisdiction to delve into the merits of the impugned decision. It urged the Court to limit itself to the parameters discussed in Pastoli v Kabale District Local Government Council & Others (supra), namely, illegality, irrationality and procedural impropriety. On that account the 6th respondent submitted that the applicant has not demonstrated that the respondent’s decision is unreasonable or that no reasonable person or body could have reached such a decision. The 6th interested party similarly cited Republic v Public Procurement Administrative Review Board & 2 Others, Ex Parte Kemotrate Investment Limited (supra) and James Oyondi t/a Betoyo Contractors v Elroba Enterprises Limited & Others (supra), among other decisions to buttress its submissions.

[28]I have given careful consideration to the application as well as its supporting documents; notably the Statement of Facts and the Verifying Affidavit filed herein at the leave stage. I have similarly considered the responses filed by the respondent and the interested parties by way of Replying Affidavits, Grounds of Opposition and Notice of Preliminary Objection; as well as the written and oral submissions filed/made by learned counsel on behalf of the parties. The background facts are largely undisputed and have been well captured in the applicant’s affidavit as well as the Replying Affidavits sworn by James Kilaka and Moses Sirgoi on behalf of the respondent as well as the 1st and 2nd interested parties.

[29]Thus, there is no dispute that, sometime in January 2023, the 1st and 2nd interested parties floated Tender No. KPA/076/2022-23/ADM for the Provision of Housekeeping/Cleaning Services (Preference Groups) at the Port of Mombasa. It is also common ground that the applicant was among the bidders who responded to the invitation and submitted their bids. In its case, the applicant’s bid turned out to be unsuccessful. It received a letter dated 17th July 2023 notifying it of the award and of the fact that its bid was unsuccessful. The applicant was not satisfied with the outcome and therefore it proceeded to file a Request for Review before the respondent on 17th July 2023 vide PPARB Application No. 57 of 2023.

[30]The parties are further in agreement that, upon the filing of the Request for Review, the respondent immediately sent a notice thereof to the 1st and 2nd interested parties and invited them to file their responses; which was done on 15th August 2023. The interested parties filed their responses, including Notices of Preliminary Objection challenging the respondent’s jurisdiction to hear the Request for Review, as well as the locus standi of the applicant to file the Request for Review. The Request for Review was thereafter heard virtually and a decision rendered on the 1st September 2023 via email. In its decision, the respondent upheld the Preliminary Objection and accordingly struck out the Request for Review. In its final orders, the respondent stated:“In exercise of the powers conferred upon it by Section 173 of the Public Procurement and Asset Disposal Act No. 33 of 2015 the Board makes the following orders in the Request for Review dated 10th August 2023:1. The Respondents’ Notice of Preliminary Objection dated 17th August 2023 and the Interested Parties Notice of Preliminary Objection dated 21st August 2023 be and are hereby upheld only to the extent that the Request for Review is time-barred.2. The Request for Review dated 10th August 2023 be and is hereby struck out for want of jurisdiction by the Board.”

[31]In the premises, the key issues arising for determination in this suit are:(a)Whether the application has been filed outside the statutory timelines provided for under Section 175(1) of the PPADA, and the effect thereof.(b)Whether the respondent has the capacity to be sued in its own name, having regard to the express provisions of Section 27(1) of the PPADA, and the effect thereof on the competence of the proceedings as filed herein.(c)Whether the applicant is a “person aggrieved” within the meaning of Section 175(1) of the PPADA and whether the applicant has locus standi to commence and continue the judicial review proceedings herein, and the effect thereof.(d)Whether the applicant has demonstrated circumstances which warrant the exercise of the Court’s judicial discretion in favour of granting the judicial review order of certiorari as prayed for herein.

A. On whether the application is time-barred: [32]The first point taken by the interested parties was that the application is time-barred, in that it was filed outside the statutory time stipulated in Section 175 of the PPADA. Subsection (1) thereof states:“A person aggrieved by a decision made by the Review Board may seek judicial review by the High Court within fourteen days from the date of the Review Board’s decision, failure to which the decision of the Review Board shall be final and binding to both parties.”

[33]A perusal of the record shows that the applicant’s Chamber Summons dated 14th September 2023 for leave to file a substantive application was filed herein on 15th September 2023. As the application was filed within the 14 days’ window provided for in Section 175(1) of the PPADA, one would say, and easily so, that the entire process was commenced timeously. However, the contention of the respondent and the interested parties in this regard, was that judicial review proceedings for purposes of Order 53 of the Civil Procedure Rules only commence upon the filing of the substantive motion, which in this case was done on 25th September 2023; and therefore that the jurisdiction of the Court was ousted by effluxion of time. In support of their argument, the respondent and the interested parties relied on Republic v Communications Commission of Kenya, Ex Parte East Africa Television Network Limited (supra) in which the Court of Appeal held:“In our view, the fallacy in Dr. Kiplagat’s contention lies principally in his assuming that it is the chamber summons application for leave to apply for the orders which originates the proceedings under Order 53. The proceedings under that order can only start after leave has been obtained and the proceedings are then originated by the notice of motion filed pursuant to the leave granted.”

[34]It is noteworthy however that the decision was made in 2001 before the promulgation of the Constitution, 2010. The landscape has since changed remarkably, in that the remedy of judicial review is now anchored in Article 23(3)(f) of the Constitution. The implication of that, to my mind, is that the applicant was at liberty to either file a substantive application directly pursuant to Section 9 of the Fair Administrative Action Act, or approach the Court under Order 53 of the Civil Procedure Rules, as it dit. Accordingly, the view I took in Mombasa Judicial Review No. E025 of 2022: Republic v Public Procurement Administrative Review Board, Kenya Ports Authority & Others, Ex Parte Space Contractors & Suppliers Limited, which I still hold because I have not been persuaded otherwise, is that where an applicant chooses to move the Court via the Law Reform Act and Order 53 of the Civil Procedure Rules, the period stipulated in Section 175(1) of PPADA ought to be reckoned from the date of filing the application for leave.

[35]I say so in acknowledgment of the position taken by the Court of Appeal in Aprim Consultants v Parliamentary Service Commission & Another (supra) that the timelines in public procurement disputes are cast in stone; while at the same balancing that realism with the constitutional imperative in Article 159(2)(d) that justice be administered without undue regard to procedural technicalities. Indeed, the Supreme Court pointed out in Communication Commission of Kenya v. Royal Media Services & 5 others, SC Petition 14 consolidated with Nos 14A, 14B & 14C of 2014, that:“…notwithstanding our findings based on the common law principles of estoppel and res-judicata, we remain keenly aware that the Constitution of 2010 has elevated the process of judicial review to a pedestal that transcends the technicalities of common law.”

[36]Accordingly, in Matagei v Attorney General; Law Society of Kenya (Amicus Curiae) (Petition 337 of 2018) [2021] KEHC 460 (KLR) Hon. Korir, J. (as he then was) acknowledged that there is what appears to be a two-track judicial review system in existence currently and that either option is valid. Here is what he had to say about this reality:“…the tension between the common law judicial review and the judicial review founded on the Constitution is apparent. The application of the rules of order 53 of the CPR to judicial review applications brought under sections 8 and 9 of the LR Act and the non-application of the rules to judicial review applications premised on the Constitution has resulted in what appears to be a two-track judicial review process; one under common law and another under the Constitution”

[37]Ultimately, Parliament would be best placed to bring harmony and ease the apparent tension by repealing Sections 8 and 9 of the Law Reform Act to pave way for appropriate rules of procedure in this area of law. In the meantime, no litigant should be denied a hearing simply because the approach was made under Order 53 of the Civil Procedure Rules with its two-step procedure, so long as the entire process is accomplished within the timelines provided for in the PPADA. I therefore agree entirely with the position taken in Matagei v Attorney General (supra) that:76. A perusal of the FAA Act clearly shows that Parliament intended to substitute the judicial review under the common law with statutory judicial review and this explains why Part III (sections 7 to 11) of the Act is clearly titled “Judicial Review”. One cannot therefore understand why Parliament did not go to the whole hog by repealing sections 8 and 9 of the LR Act. The failure to repeal the impugned provisions of the LR Act has led to the continuing confusion as regards the procedure for institution of judicial review proceedings. It is noted that rules have not been made as provided by section 10(2) and regulations have also not been enacted under section 13 of the FAA Act even though the law is already operational. Lack of procedural rules force applicants to resort either to order 53 of the CPR or constitutional petitions when seeking orders of judicial review…80. The procedural rules in order 53 of the CPR governed judicial review prior the promulgation of the Constitution and are still in force as they have not been repealed. There, however, would appear to be a clear intention to repeal and replace these rules and their originating law being sections 8 and 9 of the LR Act.

[38]On whether leave is a requirement in the current dispensation again I am in agreement with the position taken in Matagei v Republic (supra) that:90. The petition before this court though drafted as an attack on sections 8 and 9 of the LR Act is essentially a challenge on the requirement for leave prior to the commencement of judicial review proceedings. This is the narrow question that I am required to answer. In answering this question, I find that the petitioner has not put forward any convincing argument that the need for leave before commencement of judicial review proceedings violates articles 22, 23, 48 and 59(c) & (d) being the provisions of the Constitution upon which his petition is premised. The requirement for leave does not impede access to justice as the decision whether or not to grant leave is at the discretion of the judge, who must nevertheless exercise the discretion judiciously. In any case, denial of leave can be appealed-see Mirugi Kariuki v Attorney General [1992] eKLR.91. It is also noted that the necessity for leave before commencement of legal proceedings is a requirement in various areas of legal practice. For instance, there is need for leave before one can appeal certain decisions under the Civil Procedure Rules, 2010. The need for leave by itself cannot therefore be said to be unconstitutional. Fortunately, the petitioner need not seek leave to commence judicial review proceedings under the FAA Act.

[39]Hence, I take the view that it is optional for a party to seek leave or not before approaching the Court with a substantive application; and that whether or not leave is granted has no effect on the right of access to justice for purposes of judicial review. I am fortified in this stance by the decision of a 5-judge bench of the Court of Appeal in Independent Electoral and Boundaries Commission (IEBC) v National Super Alliance (NASA) Kenya & 6 others [2017] eKLR in which it was held:“In our considered view presently, judicial review in Kenya has Constitutional underpinning in articles 22 and 23 as read with article 47 of the Constitution and as operationalized through the provisions of the Fair Administrative Action Act. The common law judicial review is now embodied and ensconced into constitutional and statutory judicial review. Order 53 of the Civil Procedure Act and rules is a procedure for applying for remedies under the common law and the Law Reform Act. These common law remedies are now part of the constitutional remedies that the High Court can grant under article 23(3)(c) and (f) of the Constitution. The fusion of common law judicial review remedies into the constitutional and statutory review remedies imply that Kenya has one and not two mutually exclusive systems for judicial review. A party is at liberty to choose the common law order 53 or constitutional and statutory review procedure. It is not fatal to adopt either or both...We hold that Kenya has one and not two mutually exclusive systems for judicial review. The common law and statutory judicial review are complementary and mutually non-exclusive judicial review approaches."

[40]In the premises, it is my finding that the application was brought timeously and is therefore competently before the Court for determination.

B. On whether the respondent has the capacity to be sued: [41]The interested parties also raised an objection to the applicant’s judicial review application contending that the proceedings are incompetent because the respondent, being an unincorporated body, lacks the capacity to sue or be sued. Section 27(1) of the PPADA, was cited in this connection. It simply states that:“There shall be a central independent procurement appeals review board to be known as the Public Procurement Administrative Review Board as an unincorporated Board.”

[42]Accordingly, the question to pose is whether the respondent, as an unincorporated board, has the legal capacity to be sued. In this instance, it has to be borne in mind that the right to judicial review is anchored in Article 47 of the Constitution, for which purpose Article 260 defines a person as including a company, association or other body or persons whether incorporated or unincorporated. Additionally, Article 165(6) of the Constitution is explicit that the supervisory jurisdiction of the High Court encompasses decisions made by “…any person, body or authority exercising a judicial or quasi-judicial function…”

[43]Further to the foregoing, the Fair Administrative Action Act, provides in Section 7(2)(a) that the proper person to sue for a judicial review order is “the person who made the decision”; in this case the PPARB. It is therefore my finding that the PPARB has the capacity to be sued and has therefore been correctly cited as the respondent in this matter. This posturing was taken by Hon. Nyamweya, J. (as she then was) in Republic v Committee on Senior Counsel & Another, Ex parte Allen Waiyaki Gichuhi [2021] eKLR, thus:“20. In essence therefore, a person can sue or be sued in law if they are a natural person, an unincorporated body of persons or a corporate body, and the only difference in bringing suits against natural, corporate and unincorporated persons is in the manner and procedure employed in suing. This is for the reasons that while natural and corporate persons are bestowed with legal capacity so long as certain conditions exist, unincorporated associations do not have a separate legal personality, and the law does not recognize them as legal entities separate from their natural members.21. . An exception however exists in the case of statutory bodies, particularly in judicial review, and the unincorporated status of a defendant has not been regarded as a bar to being subject to and defending judicial review proceedings. It was stated in this regard that a statute can confer legal status on an unincorporated association in the case of Baskins v. United Mine Workers (1921) 150 Ark. 398, 4Ol, 234 S. W. 464, 465. 1, wherein it was held that in the absence of enabling statute, an unincorporated association cannot sue or be sued in the common or association name. and all the members must be made parties, since such bodies have, in the absence of statute, no legal entity distinct from their members.22. This is mainly for the reason that a statutory body gets its powers and authority from an act of parliament, and is generally established to perform specific functions and make judgments in some area of activity. In this respect, the meaning of a ‘statutory body’ may change depending upon the legislation, but the defining factor is that all statutory bodies are established and operate under the provisions of their own enabling legislation, which sets out the purpose and specific powers of the agency.23. It is notable in this respect that in judicial review, the defining factor that gives capacity to a defendant is whether there are certain statutory and legal powers and duties conferred or imposed on the public body or official by a statute or other law. The different rules as regards capacity to sue and be sued in the case of unincorporated associations were the subject of the decision in the English case of Aireborough Neighbourhood Development Forum v Leeds City Council [2020] EWHC 45, wherein it was found that an unincorporated association, which in that case was a neighbourhood forum, had capacity to bring both a judicial review and a statutory challenge against the decision of a public authority. The case confirmed that legal capacity to sue is not a critical requirement in determining a claimant’s capacity to bring a statutory challenge. Instead the claimant must be a person aggrieved, or in the case of judicial review, have standing to challenge. Such a test does not consider legal capacity but instead, focuses on the critical component of sufficient interest in the decision.”

[44]The Court further stated, and I agree entirely, that:“26. Since judicial review is a special supervisory jurisdiction which is different from both ordinary adversarial litigations between private parties and appeal rehearing on the merits, the question that determines the capacity of a defendant is whether there is some recognizable public law wrong that has been committed. A defendant in judicial review proceedings therefore, is the public body or public office holder which made the decision under challenge (or failed to make a decision where that failure is challenged), or where the public body or official has legal responsibility for the relevant matter.27. This Court therefore finds for the foregoing reasons, that the Committee of Senior Counsel, being an unincorporated body that has been given existence and duties by the Advocates Act, is a statutory and public body that is capable of suing and being sued for purposes of judicial review.”

[45]It is not lost on the Court that reference was made by the interested parties to the decision of the Court of Appeal in Finmax Community Based Group & 3 Others v Kericho Technical Institute [2021] eKLR which is a binding decision. However, it is significant that the Supreme Court has since given further clarification in this regard in Saisi & Others v Director of Public Prosecutions & Others (supra) thus:“…when codifying judicial review to a constitutional right, the intention was to elevate the right to fair administrative action as a constitutional imperative not just for state bodies, but for any person, body or authority. It was a clarion call to ensure that the constitutional right to fair administrative actions permeated every aspect of the lives of Kenyans, from their engagements with educational facilities such as universities, to employer-employee relationships, to engaging with public bodies in whatever capacity, or any body, person or authority that exercises quasi-judicial functions. That approach was consistent with realizing the right of access to justice because justice could be obtained in other places besides a courtroom.”

[46]Thus, the respondent herein, having been established within the framework of PPADA, has its functions set out under Section 28 of the Act. Those functions are quasi-judicial in nature, and are therefore amenable to judicial review. In fact, the Act explicitly states so in Section 175(1) thereof that:“A person aggrieved by a decision made by the Review Board may seek judicial review by the High Court within fourteen days from the date of the Review Board's decision, failure to which the decision of the Review Board shall be final and binding to both parties.”

[47]I therefore find no merit in the argument that, being an unincorporated body, the respondent lacks the capacity to be sued.

C. On whether the applicant has locus standi to file this suit: [48]In support of its argument that the applicant lacks locus standi, the respondent relied on the decision of Court of Appeal of in James Oyondi t/a Betoyo Contractors & Another v Elroba Enterprises Limited & 8 others (supra) where it was held:“It is not in dispute that the appellants never pleaded nor attempted to show themselves as having suffered loss or damage or that they were likely to suffer any loss or damage as a result of any breach of duty by KPA. This is a threshold requirement for any who would file a review before the Board in terms of section 167(1) of the PPADA;(1)subject to the provisions of this part, a candidate or a tenderer, who claims to have suffered or to risk suffering, loss or damage due to the breach of a duty imposed on a procuring entity by this Act or the Regulations, may seek administrative review within fourteen days of notification of award or date of occurrence of the alleged breach at any stage of the procurement process, or disposal process as in such manner as may be prescribed.”It seems plain to us that in order to file a review application, a candidate or tenderer must at the very least claim to have suffered or to be at the risk of suffering loss or damage. It is not any and every candidate or tenderer who has a right to file for administrative review. Were that the case, the Board would be inundated by an avalanche of frivolous review applications. There is sound reason why only candidates or tenderers who have legitimate grievances may approach the Board. In the present case, it is common ground that the appellants were eliminated at the very preliminary stages of the procurement process, having failed to make it even to the evaluation stage. They therefore were, with respect, the kind of busy bodies that section 167(1) was designed of keep out. The Board ought to have ruled them to have no locus, and the learned Judge was right to reverse it for failing to do so. We have no difficulty upholding the learned Judge.

[49]It is plain then that the issue of locus standi was conflated in the sense that the respondent and the interested parties seem to suggest, on the basis of James Oyondi t/a Betoyo Contractors & Another v Elroba Enterprises Limited (supra) that the applicant has no locus standi to file the instant judicial review case. To my mind, the issue of locus standi as questioned herein can only be raised from the standpoint of Section 175(1) of PPADA as opposed to Section 167. An aggrieved party from for purposes of Section 175(1) of the PPADA must be the person against whom the decision of the Board was made; in this case the applicant. It has nothing to do with whether or not the applicant had locus standi before the Board for purposes of Section 167(1) of the PPADA. I therefore have no hesitation in holding that indeed, the applicant has the locus standi to file this judicial review matter.

D. On the merits of the application: [50]Judicial review is largely concerned with the decision-making process as opposed to the merits of the decision; granted that the role of the Court in judicial review is supervisory. It is not an appeal; and therefore remains a process review mechanism in spite of its anchoring in the Constitution. This aspect was reiterated by the Supreme Court in Saisi & 7 others v Director of Public Prosecutions & 2 Others (supra) as follows:76. Be that as it may, it is the court’s firm view that the intention was never to transform judicial review into to full-fledged inquiry into the merits of a matter. Neither was the intention to convert a judicial review court into an appellate court. We say this for several reasons. First, the nature of evidence in judicial review proceedings is based on affidavit evidence. This may not be the best suited form of evidence for a court to try disputed facts or issues and then pronounce itself on the merits or demerits of a case. More so on technical or specialized issues, as the specialised institutions are better placed to so. Second, the courts are limited in the nature of reliefs that they may grant to those set out in section 11(1) and (2) of the Fair Administrative Action Act. Third, the court may not substitute the decision it is reviewing with one of its own. The court may not set about forming its own preferred view of the evidence, rather it may only quash an impugned decision. This is codified in section 11(1)(e) and (h) of the Fair Administrative Action Act. The merits of a case are best analyzed in a trial or on appeal after hearing testimony, cross-examination of witnesses and examining evidence adduced. Finally, as this court held in the case of Kenya Vision 2030 Delivery Board v Commission on Administrative Justice, Attorney General and Eng Judah Abekah, SC Petition 42 of 2019; [2021] eKLR, in matters involving the exercise of judgment and discretion, a public officer or public agency can only be directed to take action; it cannot be directed in the manner or the particular way the discretion is to be exercised.

[51]In the premises, the applicant had to demonstrate that the decision or act complained of is tainted with illegality, irrationality or procedural impropriety, or is otherwise deficient in terms of proportionality. Hence, in the case of Pastoli v Kabale District Local Government Council and Others [2008] 2 EA 300 it was held:“In order to succeed in an application for judicial review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety...Illegality is when the decision-making authority commits an error of law in the process of taking or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality. It is, for example, illegality, where a Chief Administrative Officer of a District interdicts a public servant on the direction of the District Executive Committee, when the powers to do so are vested by law in the District Service Commission...Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards...Procedural Impropriety is when there is a failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision.”

[52]Likewise, in Kenya National Examination Council v Republic, Ex Parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR, the Court of Appeal held:

“…Only an order of CERTIORARI can quash a decision already made and an order of certiorari will issue if the decision is made without or in excess of jurisdiction, or where the rules of natural justice are not complied with or for such like reasons…” [53]It is also pertinent that, although in the course of a process review, the Court is at liberty to engage in some measure of an analysis of the merits of the impugned decision to enable it ascertain whether or not the decision was procedurally fair for purposes of Article 47 of the Constitution and its derivative legislations, that process is limited. Accordingly, in the Saisi Case, the Supreme Court pointed out that:“For the court to get through an extensive examination of section 7 of the, there had to be some measure of merit analysis. That was not to say that the court had to embark on merit review of all the evidence. For instance, how would a court determine whether a body exercising quasi-judicial authority acted reasonably and fairly in the circumstances of the case without examining those circumstances and measuring them against what was reasonable or fair, and arriving at the conclusion that the action taken was within or outside the range of reasonable responses. It was to be limited to the examination of uncontroverted evidence. The controverted evidence was best addressed by the person, body or authority in charge. There was nothing doctrinally or legally wrong about a judge adopting some measure of review, examination, or analysis of the merits in a judicial review case in order to arrive at the justice of the matter. Rather a failure to do so, out of a misconception that judicial review was limited to a dry or formalistic examination of the process only led to intolerable superficiality. That would be against article 259 of the Constitution which required the courts to interpret it in a manner that inter alia advanced the rule of law, permits the development of the law and contributes to good governance.”

[54]Thus, as set out in the affidavits Mr. Kilaka and Mr. Sirgoi, upon filing its Request for Review, the applicant was given a hearing by the respondent; whereupon the preliminary objections filed by the interested parties were upheld and the application struck out.

[55]In arriving at its decision, the Board relied on Section 167(1) of the PPADA, which provides that:(1)Subject to the provisions of this Part, a candidate or a tenderer, who claims to have suffered or to risk suffering, loss or damage due to the breach of a duty imposed on a procuring entity by this Act or the Regulations, may seek administrative review within fourteen days of notification of award or date of occurrence of the alleged breach at any stage of the procurement process, or disposal process as in such manner as may be prescribed.

[56]Regulation 203(2) (c) of the PPADR, on the other hand, requires that: -(2)The request referred to in paragraph (1) shall—(a)…(b)…(c)be made within fourteen days of —(i)the occurrence of the breach complained of, where the request is made before the making of an award;(ii)the notification under section 87 of the Act; or(iii)the occurrence of the breach complained of, where the request is made after making of an award to the successful bidder.

[57]Counsel for the applicant placed emphasis on the word “or” employed in Section 167 (1) and Regulation 203 of the PPADR. At paragraph 15 of the applicant’s written submissions, counsel made it clear that, yes, the respondent heard all the parties and there is therefore no complaint of procedural impropriety. Likewise, it is my finding that there was no complaint about the legality of the respondent’s decision because it was best placed to determine whether or not it had jurisdiction on the basis of the doctrine of Kompetenz-Kompetenz that intrinsically imbues the body concerned with the jurisdiction to determine the question of its own jurisdiction.

[58]In the premises, it is my considered view that the decision of the tribunal on whether or not it had jurisdiction, cannot be said to be irrational; for an irrational decision is defined, according to Black’s Law Dictionary, Tenth Edition, to be a decision “Not guided by reason or by a fair consideration of the facts.” Moreover, in Pastoli v Kabale District Local Government Council & Others (supra) it was held:“Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards…”

[59]It is noteworthy however that, as has been pointed out hereinabove, what is, in fact, contested by the applicant is the correctness or otherwise of the interpretation given by the respondent to Section 167 of PPADA, in respect of which counsel for the applicant posed the question, “Was the decision of the Tribunal in the interpretation of Section 167 of the Public Procurement and Asset Disposal Act rationally sound or not?

[60]The gist of the applicant’s argument in this regard is to be found at paragraph 10 of its written submissions, which is quoted here below for its full tenor and effect:It is important to note that Section 167 of the Public Procurement and Asset Disposal Act clearly provides that an aggrieved party may file a Request for Review either within 14 (14) days or the date of occurrence of a breach of the tendering process or within fourteen (14) days of the notification of the results of the award. The use of the word “or” is of critical importance. In the Oxford English Dictionary, the word ‘or’ is defined as a conjunction that links alternatives. In this matter, the applicant was therefore perfectly entitled to file the Request for Review within fourteen (14) days of the notification of the award. There is no suggestion from any party herein that the said Request for Review was not filed within fourteen (14) days from the date when the applicant was notified of the said awards of the subject tender.

[61]It is plain therefore that counsel for the applicant pressed what is purely a merit issue, namely that, in arriving at the impugned decision, the respondent failed to properly appreciate the import of the word “or” in the context of Section 167(1) of the PPADA. Hence, it is my considered view and finding that, far from being perverse, the decision taken by the respondent was within the range of options available to it; and therefore its correctness or otherwise could only be tested on appeal and not by way of judicial review.

[62]I therefore find it apt to reiterate the expressions of Lord Hailsham of St Marylebone in Chief Constable of the North Wales Police v. Evans [1982] 1 WLR 1155 that:“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.”

[63]In the result, and having perused and considered the impugned decision, I am not satisfied that it is illegal or irrational. I similarly find no reason to fault the decision on account of procedural impropriety. It follows, then, that the applicant’s Notice of Motion dated 25th September 2023 is devoid of merit and is hereby dismissed. Each party to bear own costs of the application.

It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 8TH DAY OF NOVEMBER 2023OLGA SEWEJUDGE