Republic v Public Procurement Administrative Review Board & another; Celmel Insurance Agency (Exparte Applicant) [2023] KEHC 23662 (KLR)

Republic v Public Procurement Administrative Review Board & another; Celmel Insurance Agency (Exparte Applicant) (Judicial Review Application E096 of 2023) [2023] KEHC 23662 (KLR) (Judicial Review) (12 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23662 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review Application E096 of 2023

JM Chigiti, J

October 12, 2023

Between

Republic

Applicant

and

Public Procurement Administrative Review Board

1st Respondent

The Managing Director, Kenya Electricty Generating Company PLC

2nd Respondent

and

Celmel Insurance Agency

Exparte Applicant

Judgment

Brief background: 1. What is before this court is the Application dated 5th September, 2023, wherein the Applicant is seeking the following orders:a.An Order of Certiorari to remove into the High Court and quash the 1st Respondent's decision dated 29th August 2023 in Public Procurement Administrative Review Board Application No. 54 of 2023 for Tender No. KGN-LEG-05-2023 for the provision of Insurance Services for the year 2023-2024. b.An Order of Prohibition directed at the 2nd Respondent prohibiting and restraining it from proceeding with or receiving bids from tenderers in respect of Tender No. KGN-LEG-05-2023 pending the hearing and determination of this application or as this honorable court shall direct.c.An Order of Mandamus directing the 1st Respondent to hear and determine on merit whether or not the 2nd Respondent breached the provisions of the Act by using a hybrid of open and restricted methods of procurement in the same tender.d.In the alternative to prayer (c) above, an Order of Mandamus be issued directing the 2nd Respondent to terminate Tender No. KGN-LEG-05-2023 and re-advertise the same in compliance with the directions issued by this Court, the Constitution, PPAD Act and the Regulations, 2020. e.This Honourable Court do issue any other Orders it may deem fit to issue.f.The costs of this Application be provided for.

2. The application is predicated on the statement of facts and the verifying affidavit of Festus Wanjohi sworn on even date.

Ex-parte Applicant's Case 3. The Applicant argues that the 2nd Respondent invited bids for Tender number KGN-LEG-05-2023 for the provision of Insurance Services for the year 2023-2024.

4. The Applicant argues that it was unable to submit a bid because the conditions in the tender did not comply with the requirements of the Public Procurement and Asset Disposal Act, 2015 (the Act) and the Public Procurement and Asset Disposal regulations, 2020 (Regulations 2020).

5. It alleges that the Respondent included in the tender document irregular and illegal qualifications that locked out the Applicant from participating in the subject tender.

6. The Applicant challenged Kengen's decision by filing a request for review before the 1st Respondent, being PPARB Application No. 54 of 2023.

7. After hearing parties, the 1st Respondent rendered a decision on 29th August 2023 dismissing the application on, among other grounds, that;a.It lacked jurisdiction under Section 167 (4) (a) of the Act to hear and determine the allegation by the Applicant that the 2nd Respondent breached the provisions of the Act by using a hybrid of open and restricted methods of procurement in the same tender.b.The tender document was not in contravention of the Constitution, the Public Procurement and Asset Disposal Act, 2015 and Public Procurement and Asset Disposal Regulations, 2020.

8. It is the Applicant’s case that in arriving at the impugned decision, the 1st Respondent failed to correctly interpret the provisions of Section 167 (4) (a) of the Act, the terms of a tender document are in breach of the Constitution, the Act and the Regulations.

9. The Applicant argues that in arriving at the impugned decision, the 1st Respondent took into consideration irrelevant consideration by giving precedent to the value of Kengen's assets over compliance with the provisions of Section 55 (1) of the Act and the Insurance Act and it committed an illegality and acted irrationally by going contrary to Public Procurement Regulatory Authority Circular No. 03/2023 of 18th May 2023. Annexed and marked "FW-5" is the said Circular.

10. According to the Applicant, the 1st Respondent failed to exercise its discretion reasonably and in good faith and improperly fettered its discretion by failing to exercise powers conferred on it under Section 173 of the Act and therefore acted ultra vires the Act thereby breaching the rule of law, the Applicant's legitimate expectation and fair administrative action under Articles 10 and 47 of the Constitution as read together with the provisions of the Fair Administrative Action.

11. According to the Applicant, the impugned decision is misconceived, erroneous and an illegality having been rendered based on the erroneous interpretation of Section 167 (4) (a) of the Act as read together with Article 227 (1) of the Constitution.

12. The Applicant further argues that the 2nd Respondent has gone ahead with the tendering process yet the fourteen (14) days standstill period provided under Section 175 (1) of the Act have not lapsed. (Annexed and marked "W-6" is Kengen's notice dated 30th August 2023. )

13. The Applicant starts off his case by inviting this court to carry out a substantive or a merit and a procedural review of the administrative decision rendered by the 1st Respondent in PPARB Application No. 54 of 2023.

14. The Applicant argues that the scope of judicial review has now been expanded beyond the common law principles and the Law Reform Act and Order 53 of the Civil Procedure Rules but it has now been entrenched under Article 23 of the Constitution as well as the Fair Administrative Action Act. Recently, the Supreme Court in Dande & 3 others v Inspector General, National Police Service & 5 others (Petition 6 (E007), 4 (E005) & 8 (E010) of 2022 (Consolidated)) [2023] KESC 40 (KLR) (16 June 2023) (Judgment) held at paragraph 85 that:“It is clear from the above decisions that when a party approaches a court under the provisions of the Constitution then the court ought to carry out a merit review of the case However, if a party files a suit under the provisions of Order 53 of the Civil Procedure Rules and does not claim any violation of rights or even violation of the Constitution, then the Court can only limit itself to the process and manner in which the decision complained of was reached or action taken and following our decision in SGS Kenya Ltd and not the merits of the decision per se"

15. The Ex-parte Applicant argues that he has approached this court under the provisions of among others Articles 10, 47 and 227 of the Constitution of Kenya, 2010, Sections 9 and 11 of the Fair Administrative Actions Act, Section 8 & 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules as well as Sections 167 and 173 of the Public Procurement and Asset Disposal Act, 2015.

16. In order to qualify and fit into the merit analysis lens, the Ex-parte Applicant has alleged that the 1st Respondent's conduct amounts to breach of the rule of law, the Applicant's legitimate expectation and fair administrative action under Articles 10 and 47 of the Constitution as read together with the provisions of the Fair Administrative Action Act, 2015.

17. According to the Ex-parte Applicant the 1st Respondent's decision is misconceived, erroneous and the same is an illegality having been rendered based on the erroneous interpretation of Section 167 (4) (a) of the Act as read together with Article 227 (1) of the Constitution.

18. Article 227 (1) provides that when a State organ or any other public entity contracts for goods or services, it shall do so in accordance with a system that is fair, equitable, transparent, competitive and cost-effective.

19. It is the Ex-parte Applicant’s case that in its Request for Review dated 8th August, 2023 the terms of the tender were contrary and thus in breach of the Constitution, that the tender document was in breach of Section 74 (1) of PPADA as read with regulation 72, as clause ITT (2) (a) provides for submission of tender forms through e-procurement while ITT 2(b) provides for physical submission which is contradictory and confusing to the candidates.

20. It argues that the tender contravened the provisions of Section 93(1) and 95 (3) of the PPADA, by incorporating a hybrid system of open and restricted tender the same violated Section 93(1), 95 (3), 96 and 102 of PPAD as read with regulation 85 (4).

21. To further buttress the merit analysis argument the Applicant relies on a number of court decisions including Republic v Kenya Revenue Authority Ex-parte Stanley Mombo Amuti (2018) eKLR, Sunchan Investment Limited v Ministry of National Heritage & Culture & 3 Others [2016] eKLR and Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others SC Petition No 14 Consolidated with 14A, 14B, & 14C of 2014 [2014] eKLR where the Supreme Court stated as follows:“However, notwithstanding our findings based on the common law principles of estoppel and res- judicata, were main keenly aware that the Constitution of 2010 has elevated the process of judicial review to a pedestal that transcends the technicalities of common law. By clothing their grievance as a constitutional question, the 1st , 2nd and 3rd Respondents were seeking the intervention of the High Court in the firm belief that, their fundamental right had been violated by a state organ. Indeed, this is what must have informed the Court of Appeal's view to the effect that the appellants (Respondents herein) were entitled to approach the Court and have their grievance resolved on the basis of Articles 22 and 23 of the Constitution."

22. Section 167 of the Act provides for matters that are not subject to the review of procurement proceedings under Subsection (1). The matters are:(a)the choice of a procurement method;

23. In a further Affidavit sworn by Festus Wanjohi, the applicant argues that the 2nd Respondent was duly served on 5th September, 2023 with a Notice of Motion dated 5th September, 2023, as evidenced by a copy of the affidavit of service.

The 1st Respondent’s case: 24. The 1st Respondent filed an Affidavit in opposition to the Application that is sworn by James Kilaka.

25. That on 8th August 2023 the Ex-parte Applicant instituted the proceedings before the 1st Respondent in PPARB Application No. 54 of 2023 by filing a Request for Review dated 8th August,2023 (hereinafter “Request for Review”) in respect of Tender No. KGN-LEG-05-2023 for the Provision of Insurance Services for the year 2023-2024 (herein referred to as “subject tender”)

26. In its Decision dated 29th August,2023 it issued the following final orders in exercise of its powers under Section 173 of the Act:i.The Request for Review dated 8th August 2023 and filed on even date by the Applicant herein with respect to Tender No. KGN-LEG-05-2023 for the Provision of Insurance Services for the year 2023-2024 be and is hereby dismissed.ii.Given that the subject procurement process has not been concluded, each party shall bear its own costs in the Request for Review.

27. In arriving at its final orders, the 1st Respondent considered the following issues for determination which emanated from parties’ cases, documents, pleadings as follows:i.Whether the Board has jurisdiction to hear and determine the instant Request for Review.ii.Whether the Request for Review is fatally defective for failure to join the Procuring Entity as a party pursuant to Regulation 203 of Regulations 2020. iii.Whether the provisions of the Tender Document in the subject tender are in breach of the Constitution, the Act and Regulations 2020iv.What orders should the Board grant in the circumstances?

28. According to the 1st Applicant, the Application is an appeal against the 1st Respondent’s Decision dated 29th August 2023 with respect to the findings of the 1st Respondent on the merits of the Request for Review and is being disguised as a judicial review application.

29. It argues that the 1st Respondent’s jurisdiction to hear matters on breach of statutory duties by a Procuring Entity does not extend to a Procuring Entity’s choice of procurement method. In the instant case, the breach was the alleged use of a hybrid of open and restricted tender, which matter is outside the jurisdiction of the 1st Respondent.

30. The 1st Respondent believes that the value of the assets of the Procuring Entity was a material consideration as the tender in question related to the provision of insurance services.

31. The 1st Respondent at paragraphs 103 to 113 of its Decision, offers a detailed explanation on the nature of the tender in question and how a successful tenderer in the subject tender had to demonstrate that they were capable of indemnifying the Procuring Entity in the event the insurable risk subject of insurance would attach.

32. According to the 1st Respondent the Ex-parte Applicant merely alleges breach without particulars of how the circular has been circumvented and the Applicant’s Request forming the subject of these proceedings was unmeritorious and it has not breached the Ex-parte Applicant’s legitimate expectation or right to fair administrative action.

33. Also that the decision of 29th August,2023 was reasonable, rational and lawful without overreaching the 1st Respondent’s mandate and jurisdiction and that it observed the rules of natural justice in the exercise of its statutory mandate and powers under Section 28 and Section 173 of the Act respectively and ensured that all parties to the Request for Review application were granted an opportunity to be heard on all issues that emerged from parties pleadings, cases, and confidential documents submitted pursuant to Section 67 of the Act through their arguments and by considering and interrogating all the documentation and information before it that was material to the Request for Review application before completing and determining the Request for Review application.

34. The 1st Respondent argues that in the event, this Honourable Court finds that the instant Application is merited, that the matter be referred back to the 1st Respondent for determination.

The 2nd Respondent’s Case 35. The 2nd Respondent in opposition to the application relies on the affidavit sworn by Daniel Kitili Nzioka.

36. The allegations that the Ex-parte Applicant was unable to submit a bid because the conditions in the tender did not comply with the requirements of the Act and the 2020 Regulations under the Act are denied.

37. The Ex- Parte Applicant opted to file a request for review and the 1st Respondent by its decision of 29th August,2023 dismissed the request for review and all allegations by the Ex- Parte Applicant.

38. The 1st Applicant correctly interpreted Section 167(4)(a) of the Act or the Regulations 2020.

39. The Ex-Parte Applicant has failed to show that the Board’s decision-making process in PPARB 54 of 2023 was tainted with illegality or that it acted without jurisdiction and therefore this ground must fail and the Ex-Parte Applicant is attempting to invite this Court to review the merits of the Board decision in PPARB 54 of 2023, which this court lacks jurisdiction to entertain.

40. The issue of whether or not the Board had jurisdiction under Section 167(4) to determine PPARB 54 of 2023 as relates to the choice of procurement method was determined and the Ex- Parte Applicant has failed to show the 1st Respondent failed to properly interpret the said Section of the Act.

41. It is the 2nd Respondent case that even if the 1st Respondent was wrong in its decision as relates to its jurisdiction under Section 167(4) of this Act, this Court cannot sit on appeal of the decision of the 1st Respondent.

42. Further that the Applicant has failed to demonstrate that the 1st Respondent took into consideration irrelevant matters by allegedly giving precedent to the value of KENGEN’s assets over compliance with Section 55(1) of the Act and the Insurance Act.

43. The allegations that the 1st Respondent failed to exercise its discretion reasonably and in good faith or that it fettered its discretion by failing to act within the confines of Section 173 of the Act is misplaced.

44. The Ex- Parte Applicant in his request for review and statement in support did not raise the allegation of failure of the Tender being in breach of Circular No 03 of 2023 issued by the Public Procurement Regulatory Authority and it also did not attach the circular. The Ex- Parte Applicant it is argued seeks to introduce new issues which is improper and the 1st Respondent cannot have committed an illegality and or acted irrationally in respect of issues not raised in the request for review by the Ex- Parte Applicant.

45. The 14-day standstill period is not applicable as the Request for review was filed prior to submission of tenders by bidders and no evaluation had been done and or communication made of a successful bidder and or notification intention to award the Tender issued.

46. Reliance is place in the case of Republic v Public Procurement Administrative Review Board Ex parte Meru University of Science & Technology; M/S Aaki Consultants Architects and Urban Designers (Interested Party) [2019] eKLR (hereinafter the “Meru University Case”) the Court, at paragraph 33, stated as follows:“The role of the court in Judicial Review proceedings was well stated in Republic vs National Water Conservation & Pipeline Corporation & 11 Others [9] where it was held that once a Judicial Review court fails to sniff any illegality, irrationality or procedural impropriety, it should down its tools forthwith. Judicial intervention is posited on the idea that the objective is to ensure that the agency did remain within the area assigned to it by Parliament. If the agency was within its assigned area then it was prima facie performing the tasks entrusted to it by the legislature, hence not contravening the will of Parliament, then a court will not interfere with the decision.”

47. In Republic v Public Procurement Administrative Review Board; Shenzhen Instrument Co. Limited & another (Interested Party) Ex parte Kenya Power and Lighting Company Limited [2019] (hereafter “Kenya Power Case”) where the court at paragraph 119, held:“Judicial review is more concerned with the manner in which a decision is made than the merits or otherwise of the ultimate decision. As long as the processes followed by the decision-maker are proper, and the decision is within the confines of the law, a court will not interfere. Broadly, in order to succeed in a Judicial Review proceeding, the applicant will need to show either: - the person or body is under a legal duty to act or make a decision in certain way and is unlawfully refusing or failing to do so; or a decision or action that has been taken is 'beyond the powers' (in latin, 'ultra vires') of the person or body responsible for it. “(Emphasis in original)

48. As for Substantive (merit based) judicial review, the law and the courts have defined the grounds that would allow a merit review under limited circumstances and the Ex-Parte Applicant still has to prove that the grounds listed under Section 7 of the Fair Administrative Action Act have been met and not simply allege without proving, as it has done in this case. In support of this the Respondent relies on the decision of the Court in Republic v Public Procurement Administrative Review Board & 3 Others, Ex Parte Tecno Relief Services Limited [2019] eKLR, at paragraph 42 – 46.

49. Contrary to what is submitted by the Ex-Parte Applicant that by merely invoking the provisions of the Constitution and the Fair Administrative Actions Act or by showing that PPARB 54 of 2023 was filed under the said provisions, it is entitled to the Orders prayed.

50. In Judicial Review Application No E052 of 2023 R Vs Public Procurement Review Board Ex- Parte Aridlands Communications ltd (hereafter “Aridlands case” in dealing with the issue of what a merit review means the court stated as follows:“105. In the case of MNK v POM; Initiative for Strategic Litigation in Africa (ISLA) (Amicus Curiae) (Petition 9 of 2021) [2023] KESC 2 (KLR)(Family) (27 January 2023) (Judgment) the Supreme Court made the following findings:"The present case offers the court an opportunity to render itself on the issue more authoritatively. The Fair Administrative Actions Act provides the parameters of judicial review to be the power of the court to review any administrative or quasi-judicial act, omission or decision of any person, body or authority that affects the legal rights or interests of an aggrieved person.It is our considered opinion that the framers of the Constitution 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. We further take the view, that this approach is consistent with realizing the right of access to justice because justice can be obtained in other places besides a courtroom.In order for the court to get through this extensive examination of Section 7 of the FAAA, there must be some measure of merit analysis. For instance, how would a court determine whether a body exercising authority acted reasonably and fairly_ "in the circumstances of the case’ without examining those circumstances and measuring them against what is reasonable or fair, and arriving at the conclusion that the action taken was within or outside the range of reasonable responses. However, it is our considered opinion that it should be limited to the examination of uncontroverted evidence. The controverted evidence is best addressed by the person, body or authority in charge. To borrow the words of the Court of Appeal in Judicial Service Commission & another v. Lucy Muthoni Njora, Civil Appeal 486 of 2019; [2021J eKLR there is 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 is limited to a dry or formalistic examination of the process only leads to intolerable superficiality. This would certainly be against Article 259 of the Constitution which requires us to interpret it in a manner that inter alia advances the rule of law, permits the development of the law and contributes to good governance.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 specialized 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 Actions 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(1J(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. The Commission on Administrative Justice, the 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.For the avoidance of doubt, we see no reason to depart from our findings in SGS Kenya Limited v. Energy Regulatory Commission & 2 others [supra] and John Florence Maritime Services Limited & another v. Cabinet Secretary, Transport and Infrastructure & 3 others [supra]."

51. The Ex-Parte Applicant has failed to demonstrate that the 1st Respondent’s decision was ultra vires or tainted with irrationality, unreasonableness and/ or impropriety.

52. The Ex-Parte Applicant has merely made an allegation without any explanation that the conduct of the 1st Respondent was in breach of the Law and the Ex-Parte Applicant’s legitimate expectation as well as fair administrative action under the Constitution and the FAA Act, in the statement, verifying affidavit and submissions,

53. The Ex- Parte Applicant’s allegation that the 1st Respondent erroneously interpreted Section 167(4)(a) of the Act and as a result its decision in PPARB 54 of 2023 is misconceived, erroneous and an illegality.

54. The Act is said to clearly preclude the 1st Respondent from dealing with issues relating to the choice of procurement method within Section 167(4)(a) of the Act which provides expressly “The following matters shall not be subject to the review of procurement proceedings under subsection (1)(a) the choice of a procurement method….”

55. It places reliance on Republic v Public Procurement Administrative Review Board & 2 others Ex parte Niavana Agencies Limited; M/S Five Blocks Enterprises Ltd (Interested Party) [2021] eKLR where the Court held as follows:“There is no doubt that Section 167 (4) of the Public Procurement and Asset Disposal Act is clear on that point that the choice of a procurement method is not subject to review;”

56. And in Republic vs. Public Procurement Administrative Review Board & 2 Others ex-parte Numerical Machining Complex Limited [2016] eKLR, where the Court held that:“where the law exhaustively provides for the jurisdiction of a body or authority, the body or authority must operate within those limits and ought not to expand its jurisdiction through administrative craft or innovation.”

57. Further, in JGH Marine A/S Western Marine Services Ltd CNPC Northeast Refining & Chemical Engineering Co. Ltd/Pride Enterprises vs. Public Procurement Administrative Review Board & 2 others [2015] eKLR.

58. In the circumstances, the Ex Parte Applicant’s claim that the Tender violated Sections 93 (1), 95 (3), 96 and 102 of the Act is without merit.

59. In the Aridlands case, page 57-59 , while relying on the decision in JGH Marine A/S Western Marine Services Ltd CNDC Northeast Refining & Chemical Engineering Company Limited/ Pride Enterprises Vs the Public Procurement Administrative Review Board & 2 Others (2015), this Honourable Court held that even where a public body makes an error, the same does not necessarily result in the Court granting an order to quash the decision error unless the error is relevant in the actual making of the decision itself.

60. In the said cited decision Justice Korir, as he then was, further stated that even if the error of law is relevant, the Court still has discretion not to quash the decision if the decision would still have been no different had the error not been committed.

61. The Court further held that where the error is also only in part and the said part can be severed then not the entire decision will not be quashed but only the part in error. Even with an error, as previously indicated, there is still the discretion of the Court and the test to be met for the decision to be quashed.

62. The 2nd Respondent invites the court to look at paragraph 60 and 61 where despite the finding on jurisdiction, it still determined the issue of whether the tender was a hybrid of open and restricted tender.

63. In any event it is the 2nd Respondents case that if the 1st Respondent fell into error in interpretation of Section 167(4)(a) of the Act on its jurisdiction, which is anyway denied, this error is irrelevant as despite this the 1st Respondent still proceeded to determine whether the choice of procurement was a hybrid of open tendering and restricted tendering as alleged.

64. Such an error, which is denied, did not change the outcome of the determination of whether or not it was a hybrid method and therefore in accordance with the said authority citing the decision of Korir J, the alleged error did not affect the decision of the 1st Respondent and this Court ought not quash the decision of the Board particularly in light of the fact that there is no challenge on the decision of the Board that the tender is an open tender.

65. The Ex-Parte Applicant ‘s argument that it had a legitimate expectation that the 1st Respondent would determine if the choice of both open and restricted tendering method by the 2nd Respondent was in breach of the Constitution and the Public Procurement and Asset Disposal Act is misplaced since the 1st Respondent determined the issue at paragraph 61 of the decision that it was an open national tender and by implication it is not a restricted tender.

66. The Ex parte Applicant’s reliance on the case of R vs Principal Secretary Ministry of Transport, Housing and Urban Development Exparte Soweto Residents Forum is not applicable as there is nothing to support the allegations of the Ex- Parte Applicant to invalidate the decision of the 1st Respondent.

67. It is the 2nd Respondents case that 1st Respondent did not act unreasonably and against the requirements of Section 55(1) of the Act the issue was dealt with by the 1st Respondent at paragraphs 94-100 of its decision in PPARB 54 of 2023.

68. The 1st Respondent at paragraph 96 quoted the relevant clause of Addendum No 2 while at paragraph 98 of its decision it stated why this provision of the Tender document is not in breach of Section 55(1) of the Act.

69. The 1st Respondent in its decision at paragraph 97 addressed itself to the issue of how the tender document provided for scoring of the candidates who met the requirement of minimum paid up capital of Kshs. 1 Million depending on the value of their paid-up capital and the allegations therefore of unreasonableness and or illegality on alleged failure to comply with Section 55(1) of the Act as well as the requirements of the Insurance Regulatory Authority are therefore not true and no orders ought to issue to the Ex- Parte Applicant on this basis.

70. The Ex- Parte Applicant alleges that the tender requirements for candidates to have a professional indemnity cover of at least Kshs. 300 Million and that this requirement is unreasonable and against the provisions of law, it is the 2nd Respondent’s case that PPARB 54 of 2023 stated that the said requirement was set by KENGEN’s user department taking into account the value of its assets to be insured as set out at paragraph 103 of the decision The allegations that the 1st Respondent considered only the value of KENGEN’s assets is not true and in turn also the allegations that this was meant to stifle competition is also not true.

71. Section 55 (1) (c) of the Act provides as follows:“A person is eligible to bid for a contract in procurement or an asset being disposed, only if the person satisfies the following criteria—(a)…(b)…(c)the person, if a member of a regulated profession, has satisfied all the professional requirements;”

72. Other than Section 55 of the Act a procuring entity is bestowed with the power to determine various conditions, be they mandatory, technical or financial that need to be satisfied by prospective bidders including:i.Section 60 of the Act requires a procuring entity to provide specific requirements needed by prospective bidders. These may include the technical requirements of the tender.ii.Section 74 (j) of the Act requires an accounting officer, when they prepare an invitation to tender, to include “any other requirement that may be prescribed”.iii.Section 79 (1) provides that a tender is responsive if it complies with both the eligibility requirements and the mandatory requirements set out in the tender documents. Section 80 (2) of the Act requires an evaluation to be done based on the criteria set out in the tender documents.

73. The eligibility criteria under Section 55 of the Act is only one of the factors that need to be considered when the procuring entity advertises a tender and invites bids. Just because an entity has satisfied the eligibility criteria does not preclude the procuring entity from setting out other requirements which it deems necessary for the needs it hopes to procure services for.

74. The 1st Respondent’s decision on this issue at paragraphs 104- 113 of its decision acted reasonably in allowing the tender requirements on paid up capital as well professional indemnity and also explained that the differentiation did not in any way amount to discrimination.

75. The 2nd Respondent argues that the 1st Respondent by its decision in PPARB 54 of 2023 violated circular No 03/2023 issued by the Public Procurement Regulatory Authority.

76. If the issue had been raised, the 2nd Respondent would have responded to the same as well as submitted on the issue and the 1st Respondent would have had an opportunity to apply itself to the same.

77. Reliance is placed in Republic Vs Public Procurement Administrative Review Board, Kerio Valley Development Authority, CMC Di Rivenna Ltd Ex Parte Sosian Energy Limited Judicial Review Case No 54 of 2016 in which the Court held as follows:“79. The question of the bid bond was never specifically placed before the Respondent. It has only arisen in these proceedings. This Court cannot speculate what the Respondent could have said about that issue. From the pleadings of the Applicant one may say that the 2nd Interested Party’s proposal was not responsive as its bid was not valid. Such a finding would however be speculative since the Respondent was never asked to decide on that issue. The Procuring Entity and the 2nd Interested Party did not address that issue in their replies to the case that the Applicant had presented to the Respondent. Any adverse finding by the Court would thus be prejudicial to them.80. It should be remembered that at this stage, the Court is only reviewing the decision of the Respondent and not that of the Procuring Entity. All the allegations against the Procuring Entity ought to have been placed before the Respondent for that is the body mandated by law to review procurement proceedings carried out by public bodies. ….”

78. They urge this Court to dismiss all allegations as relates to violation of Circular No 03/2023 issued by the Public Procurement Regulatory Authority on 18th May 2023 as the same was not raised before the 1st Respondent.

79. The 2nd Respondent relies on the foregoing in urging the court not to grant an Order of prohibition and they submit that just like the prayers for certiorari and prohibition, the same can only be issued on the basis of the Ex- Parte Applicant showing that the test either under Section 7 of the Fair Administration Actions Act or as traditionally known prior to the 2010 constitution have been established.

Analysis and determination: 80. I have considered the pleadings, submissions and authorities by the parties and I have concluded that the following issues commend themselves to my attention in order to dispose of this case:1. The effect of none compliance with court Directions.2. Whether the Application meets the standards of a merit analysis.3. Whether the 1st Respondent's decision is misconceived, erroneous and the same is an illegality having been rendered based on the erroneous interpretation of Section 167 (4) (a) of the Act as read together with Article 227 (1) of the Constitution.4. Whether the orders sought can be granted.

The effect of none compliance with court Directions. 81. On 1st September,2023 the court issued very clear directions on how the suit would be dispensed with in the following line;1. The Applicant shall file and serve the substantive notice of motion within 7 days of today’s date.2. The Respondents shall file and serve their respective responses to the application within 7 days of service.3. The Applicant shall thereafter file and serve its submissions within 7 days.4. The Respondents shall file and serve its submissions within 7 days.5. The Judgement shall be delivered on 12. 10. 2023.

82. Parties delayed in complying with the said directions prompting the court to mention the matter on 25th September, 2023 so as to invite counsel to comply with the directions in an unusual gesture on the part of the court. The uptake remained sluggish to the extent that the 1st Respondent filed its response on 9th October, 2023 without leave of court.

83. Procurement matters are supposed to be determined within forty-five days. They are very bulky in nature and they take a lot the court’s time. The need to comply with court orders cannot be overstated. A lot of courts precious time is lost mentioning cases endlessly. From the Affidavit of service of the Applicant, am satisfied that the Applicant served the 2nd Respondent with the Substantive Notice of Motion.

84. By the time the Honourable Attorney General was filing his Response to the application all the parties had filed their written submissions which meant that they did not have a chance to respond to the said affidavit.

85. At the time of filing of the said affidavit this court was almost finalizing writing the judgment. No explanation for the delay was given by the Attorney General nor was leave sought to explain the delay in filing its replying affidavit.

86. To allow non-compliance with court directions amounts to a violation of the right to fair hearing as guaranteed under Article 50 of the Constitution and the Fair Administrative Action Act. When parties to a suit fail to comply with court directions, Article 47 is breached. That must not happen in this Court.

87. Endless mentions of matters to report compliance with court directions has become a pain that is delaying access to justice. This becomes even more pronounced when dealing with Public procurement matters. Failure to comply with court directions amount to contempt of court orders and we must not hesitate to call such out. The non-compliance erodes the dignity and authority of the court. The Replying Affidavit of The Honorable Attorney General is struck out.

88. In so doing, this court is guided by the principles set out in the recent Supreme Court judgment SC Application No. E029 of 2023- Okiya Omtatah Okoiti & 3 Others…“(25)At the conclusion of the mention, the Deputy Registrar indicated that he lacked jurisdiction to vary the orders issued by the duty Judge on 8th August, 2023. Consequently, he directed that the effect of non-compliance would be determined by the Court. He also declined to grant leave to the 3rd applicant to file a rejoinder.(26)Taking all the above matters into account, we must state that, this Court has on several instances underscored the importance of compliance with its Orders, Rules and Practice Directions. With regard to filing and service of documents within the requisite time, the Court has in a long line of decisions stressed that it will not countenance breaches of timelines set by the Rules or by the Court, and affirmed the general constitutional principle that justice shall not be delayed. See Independent Electoral & Boundaries Commission v. Jane Cheperenger & 2 Others, SC Petition No. 5 of 2016; [2018] eKLR and Kenya Railways Corporation & 2 Others v. Okoiti & 3 Others, SC Petition (Application) No. 13 of 2020 & Petition 18 of 2020 (Consolidated)); [2022] KESC 68 (KLR). It goes without saying that compliance with court orders goes to the root of the rule of law as well as the dignity of any court. [27] Neither the Supreme Court Act nor the Supreme Court Rules or this Court’s Practice Directions permit the applicants to file written submissions in the manner that they did. Rule 31 of this Court’s Rules stipulates that an interlocutory application, such as the applicants’, should be filed together with written submissions. Therefore, we find it irregular for parties to file joint submissions as well as separate submissions at the same time. Not only would it be repetitive but Application No. E029 of 2023 11 also unnecessary and a waste of precious judicial time. In any event, based on the directions issued, the applicants’ submissions were to be served together with the Motion. In the end and without belabouring the point, we hereby strike out the four sets of the applicants’ written submissions. In addition, we caution litigants to adhere to the Court’s Practice Directions relating to the length of written submissions lodged before the Court, as explained in the preceding paragraph.(28)Moving onto the Respondents’ responses and/or submissions, we are not convinced with the explanation for the delay. To begin with, litigants and advocates should accord this Court the respect and decorum it deserves as the apex Court of the land. Further, nothing has been placed before us to substantiate the contention by the 5th and 9th Respondents that the delay was occasioned by difficulties in accessing the Court’s online platform.(29)Be that as it may, to accede to the Respondents’ prayer to deem the responses and/or submissions filed out of time as properly before the Court is tantamount to sanctioning an illegality. The Respondents ought to have first sought leave of the Court to file their responses out of time prior to filing the same. See Nicholas Kiptoo Arap Korir Salat v. Independent Electoral and Boundaries Commission & 7 Others, SC Applic. No 16 of 2014; [2014] eKLR and University of Eldoret & another v. Hosea Sitienei & 3 Others, SC Applic. No. 8 of 2020; [2020] eKLR. Consequently, save for the 3rd and 4th Respondents submissions, we strike out the responses and submissions filed out of time without leave of the Court.”

Whether the Application meets the standards of a merit analysis 89. This court is aligned to the fact that the scope of judicial review has now expanded beyond the Common Law Principles and the Law Reform Act and Order 53 of the Civil Procedure Rules. Judicial Review has now been entrenched under Article 23 of the Constitution as well as the Fair Administrative Actions Act. The Supreme Court in Dande & 3 others v Inspector General, National Police Service & 5 others (Petition 6 (E007), 4 (E005) & 8 (E010) of 2022 (Consolidated)) [2023] KESC 40 (KLR) (16 June 2023) (Judgment) held at paragraph 85 that:“It is clear from the above decisions that when a party approaches a court under the provisions of the Constitution then the court ought to carry out a merit review of the case However, if a party files a suit under the provisions of Order 53 of the Civil Procedure Rules and does not claim any violation of rights or even violation of the Constitution, then the Court can only limit itself to the process and manner in which the decision complained of was reached or action taken and following our decision in SGS Kenya Ltd and not the merits of the decision per se"

90. The Exparte Applicant argues that he has approached this court under the provisions of among others Articles 10, 47 and 227 of the Constitution of Kenya, 2010, Sections 9 and 11 of the Fair Administrative Actions Act, Section 8 & 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules as well as Sections 167 and 173 of the Public Procurement and Asset Disposal Act, 2015, Section 167 (4) (a) of the Act as read together with Article 227 (1) of the Constitution, Section 74 (1) of PPAD as read with regulation 72, as clause ITT (2) (a) which provides for submission of tender forms through e-procurement while ITT 2(b),Section 93(1) and 95 (3),93(1), 95 (3), 96 and 102 of PPAD as read with regulation 85 (4).

91. To further buttress the merit analysis argument the Applicant relies on a number of court decisions including Republic v Kenya Revenue Authority Ex-parte Stanley Mombo Amuti (2018) eKLR, Sunchan Investment Limited v Ministry of National Heritage & Culture & 3 Others [2016] eKLR and Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others SC Petition No 14 Consolidated with 14A, 14B, & 14C of 2014 [2014] eKLR.

92. A mere recital of the provisions of the Constitution without more cannot elevate a regular judicial review suit into a Constitutional and human rights case. A party who invites the court to determine whether or not a right has been violated and or been infringed upon in the procurement journey has to go beyond the mere mention of the Articles of the Constitution or the Sections of the Law they are relying on.

93. A litigant who wants the judicial review court to do substantive or a merit analysis of their case must demonstrate how the concerned right was threatened or violated with precision so as to enable the Respondent to counter the allegation within Article 24 of the Constitution of Kenya. The issues for determination must bear the question of whether the concerned right has been violated or not.

94. Just like in other cases, the burden of proof rests on he who alleges that there is a violation within the standards of the constitutional rights litigation. The litigant must articulate and canvass its case in such a manner that will allow the court to determine the violation question with a view to arriving at an informed decision that the litigant has suffered harm, prejudice or damage.

95. The Applicant who is inviting or expecting the court to carry out a merit analysis must drive the court towards granting reliefs within Section 11 of the Fair Administrative Action Act or under Article 23 of the Constitution. The merit analysis must not be done in vain.

96. The applicant must demonstrate through evidence that the 1st Respondent violated the concerned rights or that the tendering process offended the law. I find that the Ex parte applicant has not fulfilled nor met the foregoing minimum standards that would qualify for a merit analysis and I so hold.

97. The Fair Administrative Action Act looks at the 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 and not the merits of the case. Judicial review focuses on finding out whether the impugned decision or act complained of is tainted with illegality, irrationality and procedural impropriety. In order to persuade the court to go beyond this scope, a litigant has to satisfy the court that its case falls within the exceptions as enunciated in The Edwin Dande Case (supra). The Applicant has not satisfied the court that it qualifies as such.

98. The prayer for an order of Mandamus to issue directing the 1st Respondent to hear and determine on merit whether or not the 2nd Respondent breached the provisions of the Act by using a hybrid of open and restricted methods of procurement in the same tender cannot be issued in the circumstances.

Whether the 1st Respondent's decision is misconceived, erroneous and the same is an illegality having been rendered based on the erroneous interpretation of Section 167 (4) (a) of the Act as read together with Article 227 (1) of the Constitution. 99. The Applicant is asking this court to issue an Order of Certiorari to remove into the High Court and quash the 1st Respondent's decision dated 29th August,2023 in Public Procurement Administrative Review Board Application No. 54 of 2023 for Tender No. KGN-LEG-05-2023 for the provision of Insurance Services for the year 2023-2024.

100. In the Ugandan case of Pastoli vs. Kabale District Local Government Council and Others [2008] 2 EA 300 in which the Court citing Council of Civil Unions vs. Minister for the Civil Service [1985] AC 2 and an Application by Bukoba Gymkhana Club [1963] EA 478 at 479 held that:“In order to succeed in an application for judicial review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety...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...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.”

101. I have looked at the impugned decision of 29th August,2023 and in particular from Page 21 where the Board made the following analysis and finding:“The jurisdiction of the Board is provided for and also limited under Part XV -Administrative Review of Procurement and Disposal Proceedings and specifically in Section 167 of the Act which provides 21 for what can and cannot be subject to proceedings before the Board and Section 172 and 1/3 of the Act which provides for the Powers of the board. Section 16/ of the Act provides as follows:167Request for a review(1)Subject to the provisions of this part, a candidate o r a tenderer, who claims to have sutured 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.(2)...(3). . . . . . . . ...(4)The following matters shall not be subject to the review of procurement proceedings under Subsection (1)-(a)the choice of a procurement method;(b)a termination or a procurement or asset disposal proceedings in accordance with Section 63 of this Act, and(c)where a contract is signed in accordance with Section 135 of this Act. (Emphasis)55. Given the forgoing, the Board Is a creature of the Act and its jurisdiction flows from and is circumscribed under Section 28 and 167 of the Act. Whether the allegation by the Applicant that the Respondent breached the provisions of the Act by using a hybrid of open and restricted methods of procurement in the same tender document is not subject to review by dint of Section 167(4)(a) of the Act.56. The Applicant at paragraph 4 of the Request for Review and paragraph o of the Statement in Support of the Request for Review signed by Festus K. wanjohi contends that the subject tender incorporates a hybrid of open and restricted tender contrary to Sections 93(1), 95(3), 96 and 102 of the Act read with Regulation 85(4) of Regulations 2020. 57. On its part, the Respondent at paragraphs 16 and 17 of the Replying Affidavit sworn on 1M August 2023 by Daniel Kitili Nzioka objects to the jurisdiction of the Board to hear the aforementioned issue as raised by the Applicant by dint of the provisions of Section 16/(4) of the Act.58. Having considered parties pleadings, submissions, and the confidential documents contained in the confidential file submitted by the 15 Respondent to the Board pursuant to Section 67(3)(e) of the Act, the Issue that calls for determination by this Board is whether it has jurisdiction to hear and determine an allegation of breach of the Act emanating from the Respondent's decision to use a hybrid of open and restricted methods of procurement.59. We understand the Applicants contention to be that the Respondent opted to use a hybrid of open and restricted method of tendering in the subject tender which goes contrary to the provisions of the Act on methods of procurement of goods, works and services. Sections 93(1), 95(3), 96 and 102 of the Act read with Regulation 85(4) of Regulations 2020 which the Respondent is alleged to have breached deal with pre- qualification, advertisement of an open tender and restricted tendering.60. Having carefully perused the Tender Document submitted by the Respondent pursuant to Section 6/(3)(e) of the Act, we note that clause 2 of the Invitation to lender at page 2 of the lender Document provides that tendering in the subject tender is under the Open National tendering method and reads as follows:"2. Tendering will be conducted under Open National Tendering method using a standardized tender document and is open to all qualitied and interested Tenderers."61. From the foregoing, there is no doubt that tendering in the subject tender is by way of an Open National tendering method. It therefore follows that this Board's jurisdiction to review and determine an allegation pertaining to the choice of a procurement method is ousted by dint of Section 167(4)(a) of the Act.62. In the circumstances, we find and hold that the Board lacks jurisdiction to hear and determine the allegation by the Applicant that the Respondent breached the provisions of the Act by using a hybrid of open and restricted methods of procurement in the same tender document by dint of Section 167(4)(a) of the Act.”

102. The issue of whether or not the Board had jurisdiction under Section 167(4) to determine PPARB 54 of 2023 as relates to the choice of procurement method was determined by the 1st Respondent. This Court cannot sit on appeal of the decision of the 1st Respondent. The Applicant should have lodged an appeal to challenge the determination that the 1st Respondent had no jurisdiction under Section 167(4).

103. The Applicant has not demonstrated how the 1st Respondent committed an error of law in the process of making the impugned decision, the subject of the complaint. The Applicant has failed to prove that the 1st Respondent acted without jurisdiction or ultra vires, or contrary to the provisions of a law.

104. The Applicant also argues that in arriving at the impugned decision, the 1st Respondent took into consideration irrelevant consideration by giving precedent to the value of Kengen's assets over compliance with the provisions of Section 55 (1) of the Act and the Insurance Act and that it committed an illegality and acted irrationally by going contrary to Public Procurement Regulatory Authority Circular No. 03/2023 of 18th May 2023.

105. Section 55 (1) (c) of the Act provides as follows:“A person is eligible to bid for a contract in procurement or an asset being disposed, only if the person satisfies the following criteria—(a)…(b)…(c)the person, if a member of a regulated profession, has satisfied all the professional requirements;”

106. At paragraphs 94-100 of its decision in PPARB 54 of 2023 the 1st Respondent at Clause 3, Addendum No 2, the minimum paid up share capital was reduced to Kshs. 1 Million in compliance with Section 55(1) of the Act as well as the provisions of the Insurance Regulatory Authority. The 1st Respondent at paragraph 96 quoted the relevant clause of Addendum No 2 while at paragraph 98 of its decision it stated why this provision of the Tender document is not in breach of Section 55(1) of the Act.

107. The 1st Respondent addressed itself to the issue of how the tender document provided for scoring of the candidates who met the requirement of minimum paid up capital of Kshs. 1 Million depending on the value of their paid-up capital in its decision at paragraph 97.

108. The Applicant has failed to prove the allegations of unreasonableness and or illegality on alleged failure to comply with Section 55(1) of the Act as well as the requirements of the Insurance Regulatory Authority are therefore not true and no orders ought to issue to the Ex- Parte Applicant on this basis.

109. The Ex- Parte Applicant alleges that the tender requirements for candidates to have a professional indemnity cover of at least Kshs. 300 Million and that this requirement is unreasonable and against the provisions of law.

110. In making this allegation the Ex-parte Applicant states that the requirements by the Insurance Regulatory Authority should be for 10 Million and that the 1st Respondent failed to find that the requirement in the Tender document is irrational and unreasonable.

111. The 2nd Respondent in response to this allegation in PPARB 54 of 2023 stated that the said requirement was set by KENGEN’s user department taking into account the value of its assets to be insured.

112. The 1st Respondent considered this and at paragraph 103 of the decision stated that what was required of KENGEN as the procuring entity was to set the mandatory requirements firstly in line with the provisions of Section 55 of the Act, which is on the minimum requirement to be met, but also on the basis of the value of its insurable interest and in respect of which it did by setting the same at 300 Million as later reviewed by the addendum to Kshs. 200 Million.

113. The Applicant has not proven that in arriving at the impugned decision, the 1st Respondent took into consideration irrelevant consideration by giving precedent to the value of Kengen's assets over compliance with the provisions of Section 55 (1) of the Act and the Insurance Act and it committed an illegality and acted irrationally by going contrary to the Public Procurement Regulatory Authority Circular No. 03/2023 of 18th May 2023.

114. It is also this court’s finding that in exercising its discretion, the 1sst Respondent acted within the dictates of Section 167(4) of The PPADA.

115. I find no reason to issue an order of CERTIORARI to remove into the High Court and quash the 1st Respondent's decision dated 29th August 2023 in Public Procurement Administrative Review Board Application No. 54 of 2023 and I so hold.

The question of legitimate expectation 116. The applicant argues that when filing the request for review, the Exparte applicant had a legitimate expectation that the 1st Respondent would make a determination on whether or not the decision of the 2nd Respondent to use both open and restricted tendering methods was in breach of the Constitution and the provisions of the Public Procurement and Asset Disposal Act. However, the 1st Respondent declined to make a decision on the issue, instead erroneously holding that it did not have jurisdiction to make a determination on the procurement method.

117. The 1st Respondent misapprehended the issue before it by failing to determine whether the decision was in violation of the Constitution. This failure is in breach of the legitimate expectation which invalidates the administrative decision rendered by the 1st Respondent.

118. In Republic v Principle Secretary, Ministry of Transport, Housing and Urban Development Ex parte Soweto Residents Forum CBO [2019] eKLR, the court held that:“The requirements for the existence of such an expectation in South African law (whose legislation is similar to ours) were restated in National Director of Public Prosecutions v Philips.f4] These include:- (i) that there must be a representation which is "clear, unambiguous and devoid of relevant qualification", (ii) that the expectation must be reasonable in the sense that a reasonable person would act upon it, (iii) that the expectation must have been induced by the decision-maker and (iv) that it must have been lawful for the decision-maker to make such representation. If such an expectation exists it will be incumbent on the administrator to respect it and afford the individual holding that expectation due procedure before the expectation is disappointed. Failing such procedure, the individual may approach a court to review the administrator's actions on the ground of procedural unfairness. If the court finds that a legitimate expectation did in fact exist, it will ordinarily invalidate the administrative action and refer the matter back to the decision-maker to deal with it in a procedurally fair manner."

119. The 2nd Respondent is of a contrary view. It argues that the alleged breach is not true as the 1st Respondent expressly considered the issue as is clear from paragraph 58 of the decision and earlier paragraphs herein.

120. The determination by the 1st Respondent of the issue is set out at paragraph 61 of the decision that it’s an open national tender. By this determination it is clear that the 1st Respondent decided that it was an open national tender and by implication it is not a restricted tender.

121. The 2nd Respondent further submits that having determined that it is an open tender and not a restricted tender, then it is clear that the argument that the Tender was a hybrid of open and restricted tender had been dismissed and in turn also any allegations of breach of the Constitution, the Act and the 2020 Regulations as relates to this issue.

122. The authority of R vs Principal Secretary Ministry of Transport, Housing and Urban Development Exparte Soweto Residents Forum is not applicable to this case and there is nothing to support the allegations of the Ex- Parte Applicant to invalidate the decision of the 1st Respondent.

123. The Supreme Court in its recent judgment of Saisi & 7 others v Director of Public Prosecutions & 2 others (Petition 39 & 40 of 2019) eKLR stated that;“(73)….…The Fair Administrative Actions Act provides the parameters of judicial review to be the power of the Court to review any administrative or quasi-judicial act, omission or decision of any person, body or authority that affects the legal rights or interests of an aggrieved person. The judicial review court examines various aspects of an act, omission or decision including whether the body or authority whose decision is being challenged has done something which it had no lawful authority to do. It may have abused or misused the authority which it had. It may have departed from procedures which either by statute or at common law as a matter of fairness it ought to have observed. As regards the decision itself it may be found to be perverse, or irrational, or grossly disproportionate to what was required. These parameters are better set out extensively in Section 7 (2) (m) of the Fair Administrative Actions Act (FAAA). We quote it verbatim as follows:A court or tribunal under Subsection (1) may review an administrative action or decision, if– the administrative action or decision violates the legitimate expectations of the person to whom it relates.”

124. I have looked at the impugned decision and I am satisfied that the 1st Respondent determined the issues that the Exparte applicant had raised when it made a finding that it was a National tender based on the evidence before it.

125. This court cannot delve into the correctness of the decision. The focus of this court is limited and is concerned with procedural propriety of the 1sst Respondent. The court does not sit as an appellate court.The claim that its legitimate expectation was not upheld fails.

The next issue for determination is whether the court can issue an order prohibition. 126. The Applicant prays for an Order of Prohibition directed at the 2nd Respondent prohibiting and restraining it from proceeding with or receiving bids from tenderers in respect of Tender No. KGN-LEG-05-2023 pending the hearing and determination of this application or as this honorable court shall direct.

127. In the case of Republic v Principal Kadhi, Mombasa & Another Ex-parte Alibhai Adamali Dar & 2 others [2022] which provided that:“The Order of "Prohibition" issues where there are assumption of unlawful jurisdiction or excess of jurisdiction. It's an order from the High Court directed to an inferior tribunal or body as in this case the Kadhi's Court. Its functions is to prohibit and/or forbids encroachment into jurisdiction and further to prevent the implementation of orders issued when there is lack of jurisdiction." (.....) "Although prohibition was originally used to prevent tribunals from meddling with cases over which they had no jurisdiction, it was equally effective and equally often used, to prohibit the execution of some decision already taken but ultra vires. So long as the tribunal or administrative authority still had power to exercise as a consequence of the wrongful decision, the exercise of that power could be restrained by prohibition. Certiorari and prohibition frequently go hand in hand, as where certiorari is sought to quash the decision and prohibition to restrain its execution. But either remedy may be sought by itself."

128. Having found no fault in the impugned Tribunal’s decision, the application for an order prohibiting and restraining the 2nd Respondent from proceeding with or receiving bids from tenderers in respect of Tender No. KGN-LEG-05-2023 pending the hearing and determination of this application or as this honorable court shall direct will serve no useful purpose, and I decline to grant the prayer.

129. The Applicant has asked this Honourable Court that in the alternative the case be remitted for reconsideration by the Tribunal with directions that the Tribunal observe the provisions of the Act, the Regulations, the Trust Deed and the Rules made thereunder should the court decline the prayer for an order of prohibition.

130. Having declined to grant the order for certiorari, this court finds no relevance to refer the matter back to the tribunal. This will not achieve anything in light of Section 167(4).

131. The Applicant has invited this court in the alternative to prayer (c) above, an Order of Mandamus be issued directing the 2nd Respondent to terminate Tender No. KGN-LEG-05-2023 and re-advertise the same in compliance with the directions issued by this Court, the Constitution, PPAD Act and the Regulations, 2020.

132. Having failed to secure the orders of Certiorari, Mandamus and Prohibition in prayers A and B of the Application, Prayer C collapses and falls by the wayside and I so hold.

Costs: 133. The general rule flowing from Section 27 of the Civil Procedure Act, Cap 21, Laws of Kenya is that costs should follow the event. That is to say, the successful party should be awarded its costs. This general rule is elaborated by Justice Kuloba in his book, Judicial Hints on Civil Procedure, Vol. 1 at p. 99 as follows:“The first question is what is meant by "the event" in the proviso to Subsection (1) of this Section? The words "the event" mean the result of all the proceedings incidental to the litigation. The event is the result of the entire litigation. .... Thus the expression "the costs shall follow the event" means that the party who on the whole succeeds in the action gets the general costs of the action. (Emphasis provided).

134. It is this court’s finding that the Applicants did not succeed in securing the orders sought. They shall bear the costs of the Application.

Disposition: 135. It is this court’s finding and I so hold that the applicant has failed to prove that it is entitled to the reliefs sought. The Application does not meet the standards of Section 11 of the Fair Administrative Action Act and the principles as enunciated in the case of Council of Civil Unions vs. Minister for the Civil Service [1985] AC 2 and an Application by Bukoba Gymkhana Club [1963] EA 478 at 479 held that:In order to succeed in an application for judicial review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety.”

Order: 136. The Application dated 5th September, 2023 is dismissed with costs.It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI VIRTUALLY THIS 12TH DAY OF OCTOBER 2023J. CHIGITI (SC)JUDGE