Republic v Public Procurement Administrative Review Board Ex-parte Kenya Power and Lighting Company Limited & Hexing Technology Limited [2017] KEHC 9237 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JUDICIAL REVIEW DIVISION

JUDICIAL REVIEW APPLICATION NO. 623 OF 2016

(CONSOLIDATED WITH JUDICIAL REVIEW APPLICATION NO. 645 OF 2016)

BETWEEN

REPUBLIC…………………………..………………………...................…APPLICANT

VERSUS

PUBLIC PROCUREMENT ADMINISTRATIVEREVIEW BOARD..…..RESPONDENT

AND

MAGNATE VENTURES LIMITED.……........................................INTERESTED PARTY

EX PARTE:

KENYA POWERAND LIGHTING COMPANYLIMITED...1ST EX PARTE APPLICANT

HEXING TECHNOLOGYLIMITED.…................................2ND EX PARTE APPLICANT

JUDGEMENT

Introduction

1. In these consolidated applications, the applicants herein, Kenya Power and Lighting Company Limited and Hexing Technology Limited seek the following orders:

1. THAT an order of Certiorari be issued to remove to this Honourable Court for purposes of being quashed, the entire proceedings in Public Procurement Administrative Review Board Application No. 96 of 2016 between Magnate Ventures Limited and the Kenya Power and Lighting Company Ltd together with  the Ruling of 30th November 2016 and consequential Orders thereof;

2. THAT an order of Certiorari be issued to remove to this Honourable Court for purposes of being quashed, the entire proceedings in Public Procurement Administrative Review Board Application No. 96 of 2016 between Magnate Ventures Limited and the Kenya Power and Lighting Company Ltd together with the Ruling delivered on 7th December, 2016 and consequential Orders thereof;

AND FOR THE COURT TO:

3.  ISSUE an order of declaration that the Ruling of 30th November, 2016 in Public Procurement Administrative Review Board Application No. 96 of 2016 is an error in law and invalid for admitting, as properly filed, the purported Further Supplementary Affidavit/Statement of the interested party dated and filed on 24th November, 2016 raising a fresh ground for review outside the express time limits set out in Section 167 (1) of the Public Procurement and Asset Disposal Act;

4. ISSUE anorderof declaration that the proceedings leading to, and decision and Ruling of 7th December by the Respondent in Public Procurement Administrative Board Application No. 96 of 2016 cancelling the award of tender No. KP1/9AA-3/OT/09/16-17 for supply of single phase pre-payment meters to Hexing Technology Limited are ultra vires the  Public Procurement and Asset Disposal Act and the Constitution and therefore invalid, void and of no effect;

5. ISSUE an order of declaration that the Respondent’s decision and Ruling of 7th December 2016 in Public Procurement Administrative Board Application No. 96 of 2016 dated 15th November 2016 is unreasonable as it failed to consider the relevant statutory provisions as well as the submissions made by the Applicant in arriving at its decision;

6. THAT this Honourable court be pleased to issue any other reliefs that it deems fit to grant.

7. THAT cost of this Application and the entire proceedings be awarded to the Applicants.

Ex ParteApplicants’ Case

2. According to the applicants, on the 6th day of September 2016, the 1st Applicant hereinafter referred to as the “Procuring Entity” or “the PE”) invited bids from eligible tenderers for supply of Single Phase Prepayment Meters Tender No.KP1/9AA-3/OT/09/16-17and in response to the invitation, four companies applied for the said tender, among them being the 2nd applicant and the Interested Party herein.

3.  According to the applicants, this particular tender was for the supply of specific specialized items requiring the highest level of technical evaluation and section VI Part I of the Tender Document, under ‘Preliminary Evaluation’ provided for the Mandatory Requirements one of which was the submission of a copy of valid KEBS Diamond Mark of Quality Certificate or KEBS Standardization Mark Certificate for goods manufactured in Kenya. Apart from that the Tender Document also clearly provided that Tenders would proceed to the Technical stage only if they complied with the mandatory requirements at the preliminary evaluation stage.

4. It was averred that the interested party herein did not provide the mandatory valid KEBS Diamond Mark of Quality Certificate or KEBS Standardization Mark Certificate for goods manufactured in Kenya and consequently was not admitted to proceed to the technical evaluation stage and therefore, together with another bidder, Aiveo Limited, they were disqualified at the preliminary stage. Accordingly, only one bidder, the 2nd Applicant herein, was admitted to the next stage and admitted to Technical and Financial Evaluation stage.

5. According to the applicants, section III Clause 3. 35. 1 of the Tender Document provided that the contract would be awarded to the successful bidder whose bid had been determined to be substantially responsive, technically compliant and determined to be the lowest evaluated tender, and further, where deemed necessary, that the Tenderer is confirmed to be technically and financially qualified to perform the contract satisfactorily.

6. It was averred that on 15th November 2016, the interested party filed a Request for Review of the Award Decision before the Respondent (Application Number 96 of 2016) and in the said Application the interested party set out only one ground for challenging its disqualification by the Procuring Entity during the Preliminary evaluation. In the said ground, the interested party herein argued that the requirement to provide KEBS Diamond Mark of Quality Certificate or KEBS Standardization Mark Certificate for goods manufactured in Kenya had been waived by the 1st Applicant herein and therefore was not a requirement for purposes of Preliminary Evaluation.

7. In support of this ground, the interested party purported to rely on a Request for Clarification which it had submitted to one Mary Mbacha, an employee of the Applicant herein vide email dated 19th September, 2016 attaching a letter dated 14th September 2016. The said Request for Clarification made specific reference to Clause 5. 4.2 (Section XIX) of the Tender Document which clause related to the process of approval of meter types and not the mandatory KEBS certificates required under Clause 6. 1.10 (Section VI of the Tender Document as read with Clause 6, Section XIX of the Tender Document). To the applicants, the purported Request for Clarification therefore related to a matter not relevant to the mandatory requirements of the Tender Document and could not be the basis of seeking to waive such mandatory requirements.

8. Further, it was averred that the request for clarification posed the following question “Will bids submitted without KEBS mark certificate be considered non-responsive? “ Which question elicited the answer “Samples without the KEBS certification mark will not be considered non- responsive, but once the bidder qualifies, the KEBS approval of the meter type shall be submitted before contract signing". According to the applicants, clearly therefore, the answer provided did not relate to the question posed. Apart from that the response to the request for clarification was provided only to the interested party contrary to Clause 3. 6 (Section III of the Tender Document).

9. The applicants therefore contended that it was erroneous, unreasonable, and irrational for the Respondent to conclude that the interested party had been improperly disqualified and that it should be re-admitted to the procurement process and be subjected to Technical and Financial Evaluation.

10. Apart from the foregoing, it was contended that the Request for Review by the interested party was filed on 15th November, 2016. The Applicant herein responded by way of a written response and a Replying Affidavit dated 23rd November, 2016 to all the issues raised by the interested party in its Request for Review which related to the one and only substantive issue being the interested party’s disqualification based on failure to qualify at the Preliminary Evaluation Stage. It was averred that the Request for Review was listed for hearing on 24th November, 2016 on which day the interested party filed a supplementary affidavit in which it reiterated its position with regard to the one ground it had raised in its Request for Review. When the parties appeared before the Board on 24th November 2016 for the hearing, the interested party (Applicant then) indicated that it was ready to proceed with the hearing of its Request for Review and would be relying on documents already on the record. The 1st Applicant herein however, sought an adjournment citing late service of the interested party’s Supplementary Affidavit which application was allowed as well as the one for leave to file a response to the Supplementary Affidavit and the Request for Review was then set for hearing on the 29th of November 2016 on which day the hearing was adjourned.

11. It was however averred that without intimating its intention to file any additional documents, the lawyers for the 1st Applicant were surprised when the interested party filed and served yet another document styled“Further Supplementary Affidavit/Statement” in which it introduced a completely new matter that had not been set out in the initial Request for Review filed on the 15th of November 2016’.  For the first time, it introduced an argument that the 2nd Applicant herein, the winning bidder, may not have submitted Audited Accounts as per the Tender Document.  This new ground was raised well outside the statutory period of seeking a review and was thus time-barred.

12. Upon receipt of the affidavit raising a new claim/cause of action , the Applicant herein filed a preliminary objection dated and filed on 28th November 2016 and raised the following grounds:

i. That the purported further supplementary affidavit/ statement dated 24th November 2016 is filed out of time in accordance with section 167(1) of the Public Procurement and Assets Disposal Act, 2015.

ii. That the Request for Review is not accompanied by a deposit as required under section 167(2) of the Public Procurement and Assets Disposal Act, 2015.

13. The said Preliminary objection was argued on 29th November 2016 and a Ruling delivered on 30th November 2016 in which while acknowledging that the interested party had initially raised only one ground in its Request for Review, the Respondent nevertheless admitted the new ground and ordered the Respondents to file responses thereto. According to the applicants, the new ground was not an amendment to the initial request for review nor was it a clarification of the initial request for review and therefore the Respondent’s decision to admit the said ground was grossly erroneous, unlawful and was made without jurisdiction. In any event no leave was sought and obtained before or after the filing of the said Further Supplementary Affidavit/Statement.

14. According to the applicants, section 171 of the Act requires that the Board renders its ruling within 21 days of receiving a request for review. In this case, the Request for Review that is the subject matter of these proceedings was filed on 15th November 2016 and the Board was required to give its decision concerning this Request by 6th of December 2016. However, the Board delivered its ruling in respect of this Request for Review on 7th December 2016 outside the mandated timeline. It was therefore the applicants’ case that the Ruling of 7th December 2016 having been given outside the required time as set out in the Act is therefore invalid, void , of no effect and without jurisdiction.

15.  Furthermore, it was contended, the written decision has not been provided by the Respondent despite its indication that it would be ready on Friday 9 December 2016. According to the applicants, their Advocates’ efforts to obtain the decision on the date indicated bore no fruit as they were informed that it was not ready. To the applicants, this was in violation of Article 47 of the Constitution.

16. It was further contended that it is not in dispute that section 167(2) of the Act requires the payment of a deposit of not less than 10% of the total contract sum to accompany any Request for Review. To the applicants, although the section makes reference to regulations that will prescribe the amount of deposit to be made, the section is clear that the said deposit shall not be less than 10% of the cost of the contract. It is therefore clear that even without regulations; the law requires that, at the very least, a Request for Review must be accompanied by deposit amounting to 10% of the contract sum. It was averred that the Request for Review filed on 15th November 2016 and the subsequent new Request filed in the form of Further Supplementary Affidavit/Statement on 24th November 2016 were not accompanied by the mandatory 10 per cent deposit.

17. The applicants’ case was that Respondent therefore erred and acted unlawfully by dismissing the Applicant’s Preliminary Objection on this issue and proceeding to entertain the request for review in the absence of jurisdiction to do so.

18. According to the applicants, in its decision of 7th December 2016 the Respondent ruled that the 2nd Applicant herein (successful bidder) ought to be disqualified for failure to comply with financial requirements in the Tender Document. To the applicants, this conclusion by the Respondent is erroneous and without factual and/or legal basis. This is so because the Respondent’s conclusion on this issue was based on a ground filed by the interested party out of time and therefore the without jurisdiction. Furthermore, by ordering a technical and financial evaluation of the interested party the Respondent unfairly discriminated against the other two unsuccessful bidders. In addition, the 2nd Applicant herein submitted financial documents as permitted by the Tender Document and it was not open to the Respondent to alter those requirements and to introduce additional considerations not contemplated by the said Tender Document.

19. It was therefore the applicants’ contention that it was unreasonable, irrational and unlawful for the Respondent to disqualify the 2nd Applicant and to effectively and essentially award the tender herein to the interested party who did not meet the mandatory technical requirements.

20. Based on legal advice, the applicants believed that:

a. There is sufficient basis for this Court to act and quash the entire proceedings and consequential orders and decisions in Public Procurement Administrative Review Board Application No. 96 of 2016 between Magnate Ventures (interested party herein) and the Kenya Power and Lighting Company (Applicant herein).

b. The Respondent misdirected itself by refusing to be guided by the law in determination of this matter, hence it acted beyond its powers.

c. By the Respondent failing to take into account the relevant statutory provisions and submissions by the Applicant in arriving at its decision, the integrity of the entire review process is in issue and this Honourable Court should intervene accordingly.

21. It was submitted on behalf of the applicants that Article 47 of the Constitution guarantees inter aliaadministrative action which is expeditious. Similarly, under section 7(2)(j) of the Fair Administrative Act, 2015 unreasonable delay is one of the grounds for judicial review. Furthermore, Article 159(2)(b) of the Constitution stipulates that  in exercising  judicial  authority, the courts   and  tribunals   shall be  guided  by the principles, among  others: justice   shall not be delayed. In this respect the applicants relied on James O Freedman in ‘Review Boards in the Administrative Process’ (1969) 117 University of Pennsylvania Law Review 546that delay in the disposal of contested proceedings compromises the effectiveness of the administrative process and that such delays lead to steeper costs of pursuing administrative remedies and increases costs in litigating protracted proceedings at the administrative level as well as increased indirect costs while awaiting the ultimate administrative determination.

22. The applicants also relied on Republic vs. Public Procurement Administrative Review Board ex parte Kleen Homes Security Services Limited [2017] eKLRat 76 where it was held that the court must examine section 3 of the Act on the purposes and objectives of the Act in line with Article 227 of the Constitution and that finality of public  projects   through  efficiency, accountability and  expedition  is key  and  a noble  intention of the legislature  which must be appreciated, and embraced if the development  agenda is to be  achieved.

23. It was submitted that to this end, section 171(1) of the Public Procurement and Asset Disposal Act, 2015 requires the Board to complete its review expeditiously within twenty-one (21) days after receiving the request for the review.It is not in dispute that the request for review was filed on 15th November, 2016 while the Board’s final decision was delivered on 7thDecember, 2016. It was submitted that the decision having been made outside the 21 days prescribed for doing so under section 171(1) is clearly a decision made without jurisdiction and therefore a nullity.In this respect the applicants relied on Kate Kokumu vs. University of Nairobi [2016] eKLR, the Supreme Court decision in Petition No. 5 of 2014 - Hon. Lemanken Aramat vs.  Harun Meitamei Lempaka  and 2 Others,Wasike vs. Swala [1985] eKLR, Christine Tallam vs. Jennifer Nariamut Koipiri [2014] eKLR, Chief Doctor Felix Amadi &Anor vs. Independent National Electoral Commission (INEC) & OthersS.C. of Nigeria Appeal No. 476 of 2011 and Senator John Akpanudoedehe vs. Godswill Obot AkpabioS., C of Nigeria Appeal No. 154 of 2014.

24. It was therefore submitted that as the decision dated 7th December, 2016 was made outside the specific timeline prescribed by law, it was made without jurisdiction and is therefore invalid.

25. According to the applicants, the Respondent admitted the interested party’s further supplementary affidavit/statement raising novel grounds for review outside the 14-day envisaged by the law and thereby denied the Applicant a chance to respond to the allegations in that affidavit, which allegations the Board largely based its decision of 7th December, 2016 on. That procedure was less than fair and prejudiced the Applicants. The applicants relied on Article 47 and the Fair Administrative Action Act, 2015 which guarantee a right to fair administrative action which includes procedural fairness. That apart, Article 50 of the Constitution guarantees to every person the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body. Equally, a decision can be reviewed under section 7(2)(a)(v); (c) and (0) respectively, if: the action or decision was procedurally unfair; the administrator denied the person to whom the administrative action or decision relates, a reasonable opportunity to state the person's case; or the administrative action or decision is itself unfair. The applicants relied on  Martin Nyaga Wambora v Speaker of the Senate [2014] eKLR at 151where it was held that Article 47 elevates the rules of natural justice and duty to act fairly in administrative, judicial or quasi-judicial decisions into a constitutional right capable of enforcement by an aggrieved party in appropriate cases. The applicants also relied on Judicial Service Comission vs. Mbalu Mutava [2015] eKLR at para 23.

26. It was therefore submitted that natural justice is no longer just an obligation at common law, but also a constitutional and statutory edict underpinned by Article 47 and the Fair Administrative Action Act, 2015 and that procedural fairness including natural justice is therefore a condition precedent to any valid “administrative action” defined by section 2 of the Act to include “any act, omission or decision of any person, body or authority that affects the legal rights or interests of any person to whom such action relates”.

27. According to the applicants, the effect of the Board’s breach of the rules of natural justice were succinctly captured in David Oloo Onyango vs. Attorney-General [1987] eKLR. To them, even if the Board’s decision were correct, it would still be vitiated by the breach of the rules of natural justice.

28. According to the applicants, the procedural unfairness is exacerbated by the Board’s refusal to supply the reasons for its ruling dated 30th November, 2016 rejecting the 1st Applicant’s preliminary objection. By the time application for leave to apply for judicial review was sought and granted on 14th December, 2016, the Board’s decisions of 30th November, 2016 and 7th December, 2016 had not been supplied to the 1st Applicant. The decision dated 7th December, 2016 was only belatedly availed to the 1st Applicant on 15th December, 2016 a day after the 1st Applicant had already moved to court and the cause of action had therefore already accrued.

29. According to the applicants, there was no acknowledgment or response to the 1st Applicant’s email correspondences with the Board on 13th December 2016 and 14th December, 2016 which were followed up by the letters of 15th December, 2016 and 30th December, 2016 specifically requesting for the ruling of 30th November, 2016. Similarly, the ruling of 30th November, 2016 was served on the 1st Applicant on 17th January, 2017 days after it had already moved to court for relief. The applicants relied on Article 47(2) and section 4(2) of the Fair Administrative Action Act, 2015 to the effect that every person has the right to be given written reasons for any administrative action that is taken against him. Likewise, section 4(3)(d) requires the giving of a statement of reasons as one of the hallmarks of fair administrative action. Beside that every person materially or adversely affected by any administrative action has a right to be supplied with such information as may be necessary to facilitate his or her application for an appeal or review the reasons for which the action was taken any relevant documents relating to the matter. In this respect they relied on Rose M. B. Antoine,in‘A New Look at Reasons—One Step Forward—Two Steps Backward’ (1992) 44 Administrative Law Review 453, 454.

30. In the applicants’ view, reasons are such an ingrained part of fair administrative action that section 6(4) of the Fair Administrative Action Act, 2015 creates the presumption that if an administrator fails to furnish the applicant with the reasons for the administrative decision or action, the administrative action or decision is in any proceedings for review of such action or decision and in the absence of proof to the contrary, presumed to have been taken without good reason. Accordingly they relied onPriscillah Wanjiku Kihara vs. Kenya National Examination Council(KNEC) [2016] eKLR in which this court held that where an administrator fails to give reasons, the court can infer that there were no good reasons; also that if the reasons given are not the ones the administrator is lawfully and justifiably entitled to rely upon, the Court is entitled to intervene since the conclusion would be that the administrative action is based on an irrelevant matter.

31. It was the applicants’ case that the decision to dismiss the 1st Applicant’s Preliminary Objection rendered on 30th November, 2016 evidently lacked well-reasoned grounds explaining the considerations that led the Respondent to reach decision it made. The same was therefore made irregularly and is therefore void.

32. According to the applicants,Article 47 requires administrative action to be lawful. That apart, under section 7(2)(a)(ii); (b); and (d) respectively of the Fair Administrative Action Act, 2015, a decision can be reviewed if the administrator acted in excess of jurisdiction or power conferred under any written law; a mandatory and material procedure or condition prescribed by an empowering provision was not complied with; or the action or decision was materially influenced by an error of law and in support thereof they relied on Pastoli vs. Kabale District Local Government Council and Others [2008] 2 EA 300 as cited in Republic vs. Permanent Secretary Ministry of Housing & another [2014] eKLR.

33. In the applicants’ view, the Respondent acted ultra vires in hearing the review based on the ground(s) in the purported Further Supplementary Affidavit by the interested party dated 24th November 2016 as it was filed out of time contrary to section 167 (1) of the Public Procurement and Asset Disposal Act. Since the interested party was notified of the tender decision on 7th November 2016 it could only file an application for review or any other documents by 21st November, 2016 being within the fourteen (14) days’ timeline prescribed by the Act under section 167(1). The Further Supplementary Affidavit by the Interested Party filed on 24th November 2016 was filed out of time and ought to have been disregarded.

34. Additionally, it was submitted the Board’s decision to assume jurisdiction over the Request for Review without payment of the mandatory 10% refundable deposit was ultra viressection 167(2) of the Act. Similarly the Board’s decision of 7th December 2016, directing that the Interested Party be re-admitted into the procurement process and be subjected to technical and financial evaluation, was unlawful as the Board disregarded the mandatory requirement of section vi clause 6. 1.10 of the Tender Document, informed by the erroneous contention that the 1st Applicant had waived the mandatory requirement of the Kenya Bureau of Standards (KEBS) Diamond Mark of Quality Certificate for purposes of Evaluation and eventual consideration for award. In their view, in upholding the purported waiver, the Respondent misdirected itself in law, and failed to take into account the following relevant considerations: under Article 201 of the Constitution, public money must be used in a prudent and responsible way while Article 227 requires procurement processes for goods or services by public entities to be inter aliacompetitive and cost-effective. Additionally, maximisation of value for money is a guiding principle under section 3 of the Public Procurement and Asset Disposal Act, 2015. Moreover, the Kenya Bureau of Standards (KEBS) Diamond Mark of Quality Certificate has statutory underpinning in the Standards Act, Cap 496 whose section 4 establishes the Kenya Bureau of Standards to promote standardization in industry and commerce and to provide for the testing of locally manufactured and imported commodities with a view to determining whether such commodities comply with the provisions of this Act or any other law dealing with standards of quality or description.

35. It was therefore submitted that in these circumstances, it would be unreasonable and illegal for the 1st Applicant, a public entity, to waive the requirement of the Kenya Bureau of Standards (KEBS) Diamond Mark of Quality Certificate as a mandatory document for purposes of Evaluation and eventual consideration for award under section VI clause 6. 1.10. The Board therefore misdirected itself in law by allowing the interested party’s reliance on the purported waiver of the Kenya Bureau of Standards (KEBS) Diamond Mark of Quality Certificate which was in the nature of a claim of legitimate expectation. In this respect the applicants relied on the decision of the Supreme Court of Kenya in Communications Commission of Kenya vs. Royal Media Services Limited [2014] eKLRat para 269 that for such a claim of legitimate expectation to stand: (a) there had to be an express, clear and unambiguous promise given by a public authority;(b) the expectation itself had to be reasonable; (c) the representation had to be one which it was competent and lawful for the decision-maker to make; and (d) there cannot be a legitimate expectation against clear provisions of the law or the Constitution.

36. It was contended that contrarily, upholding the waiver in these circumstances would violate the clear constitutional and statutory provisions of the law on maximization of the value for money, competitiveness and cost-effectiveness in public procurement. Further, no claim to legitimate expectation can be premised on a purported waiver by an un-authorized official of the 1st Applicant. Even if such an expectation had been created in the minds of the interested party, in the presence of clear statutory provisions, then it would not be legitimate. In this respect reliance was placed on Republic Versus County Government of Mombasa Ex parte Outdoor Advertising Association of Kenya [2014] eKLR.

37. It was therefore submitted that the decision by the 1stRespondent being ultra vires is also prima facie unreasonable.

38. The applicants therefore asserted that this court has the power to grant any just and appropriate relief. In the circumstances of this case, they urged this Court to grant an order of Certiorari quashing the entire proceedings in Public Procurement Administrative Review Board Application No. 96 of 2016and any consequential Orders and Rulings and award them costs of this application to be borne by the  Respondent and interested party.

Respondent’s Case

39. The application was opposed by the Respondent.

40. According to the Respondent, on 15th November 2016, it received the Interested Party’s Request for Review challenging the award of Tender Number KP1/9AA-3/OT/09/16-17 for the supply of single prepayment meters. Thereupon, it immediately directed that the 1st ex parte applicant herein be served and notified of the pending Review as required by the provisions of section 168 of the Public Procurement and Asset Disposal Act, 2015.

41. However, prior to the hearing of the Request for Review, the 1st ex parte applicant herein raised a Preliminary Objection on 28th November 2016 which was heard and a Ruling delivered on 30th November 2016 in which the Respondent dismissed the said objection.

42. It was averred that the Request for Review was subsequently heard wherein the Respondent considered the pleadings before it as well as the oral and written submissions of the parties and delivered its decision on 7th December 2016 in which it considered the original tender documents, the evaluation reports and other documents supplied to it by the 1st ex parte applicant.

43. According to the Respondent, in determining the Request for Review by the Interested Party, it identified three issues for determination namely: Whether the basis for the applicant’s tender as being non-responsive at the preliminary evaluation stage was valid, whether the successful bidder’s tender was responsive and met the mandatory requirements of the tender documents and what orders it should make in the circumstances of this case.

44. In the Respondent’s view, the 1st applicant is actually challenging the merits of the Respondent’s decision which is not within the purview of a judicial review court. According to the Respondent, the applicant has not demonstrated how the Respondent’s decision to dismiss its preliminary objection was improper and erroneous.

45. It was the Respondent’s position that its decision delivered on 7th December 2016 was made within the 21 day time frame provided for at section 171 of the Act and is therefore valid.

46. It was its contention that it did not act erroneously and unlawfully in dismissing the applicant’s preliminary objection on the issue of payment of the refundable deposit provided for at section 167(2) of the Act. According to the Respondent, the Regulations referred to are yet to be enacted and there was no provision in the old Regulations providing for payment of deposit hence the Interested Party was not under a duty to pay the refundable deposit before the new Regulations have come into force.

47. It was explained that the Respondent did not award the tender to the Interested Party but only directed that it be re-admitted back into the evaluation process and that its tender be subjected to technical and financial evaluation. According to the Respondent,all the parties to the Request for Review were accorded an opportunity to be heard on the said objection and did in fact argue in support or in opposition of the same.

48. To the Respondent, the applicants have not demonstrated the existence of any grounds to warrant the grant of judicial review remedies as sought hence the application lacks merit and should therefore be dismissed with costs to the Respondent.

49. It was the Respondent’s submission that its decision was made within the twenty one days provided for and based on section 57(a) of the Interpretation and General Provisions Act.

50. In this case, it was submitted that since the Request for Review was filed on 15th November 2016, the 21 day period began on 16th November 2016 hence its decision which was delivered on 7th December 2016 was within the provided time frame. It relied on Republic versus Public Procurement Administrative Review Board & 4 Others ex parte J. Knieriem BV [2016] eKLR .

51. According to the Respondent, in this case, the date of filing of the review is excluded in the computation of time and hence the decision of 7th December 2016 was delivered within the 21 days provided for and is thus valid.

52. With respect to the failure to make the 10 percent deposit, it was submitted that there are not yet any Regulations in place under this Act to govern the payment of the refundable deposit envisaged under section 167(2). There was no requirement under the repealed Act of 2005 for the payment of such a deposit. Similarly, the Regulations made under the old Act did not provide for the payment of a deposit. Reliance was placed on Republic versus Public Procurement Administrative Review Board & Another ex parte Athi Water Services Board & Another [2017] eKLR where the court stated as follows at paragraphs 190 and 191:

“190. It is clear that in its decision, the Respondent did not stipulate the margin of preference. It is however contended that no Regulations or Guidelines have been prescribed by the Cabinet Secretary pursuant to Section 157(2) hence the Respondent Board cannot enforce nonexistent Regulations. Section 24 of the Interpretation and General Provisions Act, Cap 2 Laws of Kenya however provides as hereunder:

Where an Act or part of an Act is repealed, subsidiary legislation issued under or made in virtue thereof shall, unless a contrary intention appears, remain in force, so far as it is notInconsistent with the repealing Act, until it has been revoked or repealed by subsidiary legislation issued or made under the provisions of the repealing Act, and shall be deemed for all purposes to have been made thereunder.

191. It would therefore follow that in the absence of the said Regulations the provisions of the Public Procurement and Disposal (Preference and Reservations) Regulations, 2011, would have to be resorted to….”.

53. It was the Respondent’s submission that there being no Regulations enacted to govern the payment of such mandatory deposit, that provision can only remain in suspension until the requisite Regulations are enacted. In its view, it cannot turn away aggrieved parties on the basis of non-payment of deposit as that provision can only be operationalized once the Regulations are enacted.

54. It was the Respondents case that it did not award the tender to the Interested Party herein but only directed that it be re-admitted back into the evaluation process and that its tender be subjected to technical and financial evaluation.

55. On whether the Respondent acted irrationally, the Respondent relied Council of Civil Service Unions vs. Minister for the Civil Service [1984] 3 ALL ER 935 and Rahab Wanjiru Njuguna vs. Inspector General of Police & Another [2013] eKLR.

56. In the Respondent’s its decision could not be said to have been in defiance of logic and acceptable moral standards. The same was sound, rational and reasonable in the circumstances. The Respondent did not award the tender to the Interested Party and the said decision speaks for itself.

57. With respect to the supplementary affidavit/statement, it was submitted that it properly exercised its discretion in allowing the Interested Party’s Further Supplementary Affidavit. The other parties were given an opportunity to respond to the issues raised in the said affidavit and hence no prejudice was occasioned to any party. It was its case that it did not in any way contravene the provisions of section 167(1) of the Act since, as it pointed out in its decision, it is bound by article 159(d) of the Constitution to administer justice without undue regard to procedural technicalities.

58. Based on the foregoing, the Respondent urged the Court to find that the applications are unmerited as the applicants have not made out a case for the grant of judicial review orders as sought against it.  The Court was therefore urged dismiss the present applications with costs to the Respondent.

Interested Party’s Case

59. The interested party similarly opposed the application.

60. According to the interested party, the time within which the Respondent was required to deliver its decision in respect of the Request for Review begun running on 16th November, 2016 and that the 21st day thereafter fell on 7th December, 2016 hence the decision was made within the stipulated 21 days.

61. According to the interested party in its affidavit it sought that the Respondent reviews all records of the procurement process (including evaluation thereof) relating to the subject tender and to substitute its decision for the decision of the procuring entity and award the tender to the interested party.

62. According to the interested party the tender documents required the bidders to submit audited financial statements for 18 months of the date of the tender. However from the documents exhibited by the 2nd applicant, 2nd applicant,  the 2nd applicant was registered in Kenya on 3rd November, 2015 with Hexing Electrical Co. Limited as the majority shareholder and therefore did not and could not have had audited financial statements for 18 months of the date of the tender advertised on 6th September, 2016. According to the interested party, this issue was specifically pleaded, was responded to by the applicants and was the core to the determination of the Request for Review and could not have been disregarded by the Respondent.

63. According to the interested party the Request was not challenged on the basis of want of deposit nor was it rejected on that basis. It however averred that as no regulations have been prescribed for the payment of deposits the failure to make such deposit does not invalidate a Request for Review, filing fees therefor having been paid.

64. According to the interested party since the tender document permitted the amendment of the tender requirements in terms of a request and an answer to a clarification by a bidder, the 1st applicant erred in determining that the interested party’s bid was unresponsive at the preliminary stage.

65. It was contended that since the 1st applicant’s preliminary objection dated 28th November, 2016 raising the issue of deposit to accompany the request and the admissibility of the affidavit sworn on 24th November, 216 was heard and dismissed on 30th November, 2016, e 1st applicant is precluded from relying on the issues dismissed by that decision in challenging the final decision made on 7th December, 2016.

Determinations

66. I have considered the Motions, affidavits, the written submissions and judicial authorities herein and this is the view I form of the matter.

67. The first issue for determination is the effect of the dismissal of the preliminary objection on the final decision of the Respondent. Section 175(1) of the Public Procurement and Asset Disposal Act  provides as follows:

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.

68. That the Respondent has the power to hear and determine a preliminary objection is supported by Regulation 77(4) of the Public Procurement and Disposal Regulations which provides that:

The Review Board shall hear the preliminary objection and make a determination whether to uphold or dismiss the same and shall record the reasons for the determination.

69. What section 175(1) of the Act talks about is a decision and not necessarily a final decision. That decision, be it from a final or interim ruling is, unless challenged in judicial review proceedings becomes final. Since the Respondent is empowered to make a determination on a preliminary objection, its determination in my view amounts to a decision for the purposes of section 175(1) aforesaid.

70. The applicants however contend that they were never furnished with the decision arising from the preliminary objection until after they had instituted these proceedings. Since the Court in the exercise of its supervisory jurisdiction is empowered to call for and review the record of a Tribunal I do not see the reason why a person who has not been furnished by the reasons by the Tribunal cannot move this Court for appropriate reliefs.

71. However it is inappropriate to challenge a decision made in a preliminary objection after the finalisation of the request for the review unless by the time of the final decision, the 14 days period limited for challenging the decision arising from the preliminary objection has not run its course. The objectives of public procurement was succinctly explained by Nyamu, J (as he then was) in Republic vs. Public Procurement Administrative Review Board & Another Ex Parte Selex Sistemi Integrati Nairobi HCMA No. 1260 of 2007 [2008] KLR 728, in which he expressed himself as follows:

“Section 2 of the Public Procurement and Disposal Act, 2005 is elaborate on the purpose of the Act and top on the list, is to maximize economy and efficiency as well as to increase public confidence in those procedures. The Act was legislated to hasten or expedite the Procurement Procedures for the benefit of the public. Indeed, sections 36(6) and 100(4) of the Act which are ouster clauses, were tailored to accelerate finality of Public Projects. The intention of efficiency is noble and must be appreciated if the development agenda is to be achieved. The Court cannot ignore that objective because it is meant for a wider public good as opposed to an individual who may be dissatisfied with the procuring entity. However the Court must put all public interest considerations in the scales and not only the finality consideration. The said Act also has other objectives namely to promote the integrity and fairness of the procurement procedures and to increase transparency and accountability. Fairness, transparency and accountability are core values of a modern society like Kenya. They are equally important and may not be sacrificed at the altar of finality. The Court must look into each and every case and its circumstances and balance the public interest with that of a dissatisfied applicant. Adjudication of disputes is a constitutional mandate of the Courts and the Court cannot abdicate from it.”

72. Therefore as public procurement involves huge funds meant for development which funds are sometimes sourced from third party donors, it is important that the process be expedited and parties who are aggrieved by the decisions made by the Respondent ought to move with speed so that the public is not left in limbo as to whether decisions made by the Board may in future be overturned.

73. It must be appreciated that the decisions of public bodies involve millions and sometimes billions of shillings and public policy demands that the validity of those decisions should not be held in suspense indefinitely. It is important that citizens know where they stand and how they can order their affairs in the light of such administrative decisions. The financial public in particular requires decisiveness and finality in such decisions. People should not be left to fear that their investments or expenditure will be wasted by reason of belated challenge to the validity of such decisions. The economy with the current volatile financial markets cannot afford to have such uncertainty. As such judicial review remedies being exceptional in nature should not be made available to indolents who sleep on their rights. When such people wake up they should be advised to invoke other jurisdictions and not judicial review. Public law litigation cannot and should not be conducted at the leisurely pace too often accepted in private law disputes. See Republic vs. The Minister for Lands & Settlement & Others Mombasa HCMCA No. 1091 of 2006 and Republic vs. Public Procurement Administrative Review Board & 2 Others ex parteKnocks Krane GMBII [2013] eKLR.

74. In this case, the 1st ex parte applicant herein raised a Preliminary Objection on 28th November 2016 which was heard and a Ruling delivered on 30th November 2016 in which the Respondent dismissed the said objection. These proceedings were commenced on 13th December, 2016 which was clearly within the 14 days prescribed under section 175(1) of the Act. Accordingly, it is my view that the applicant could properly challenge the decisions made on the preliminary objection.

75. It was averred that the interested party herein did not provide the mandatory valid KEBS Diamond Mark of Quality Certificate or KEBS Standardization Mark Certificate for goods manufactured in Kenya and consequently was not admitted to proceed to the technical evaluation stage and therefore, together with another bidder, Aiveo Limited, they were disqualified at the preliminary stage. Accordingly, only one bidder, the 2nd Applicant herein, was admitted to the next stage and admitted to Technical and Financial Evaluation stage. It is however clear that the interested party herein made a Request for Clarification to one Mary Mbacha, an employee of the Applicant herein vide email dated 19th September, 2016 attaching a letter dated 14th September 2016. The said Request for Clarification was to the effect that:

“Will bids submitted without KEBS mark certificate be considered non-responsive?

76. The response to that Request was in the following terms:

“Samples without the KEBS certification mark will not be considered non- responsive, but once the bidder qualifies, the KEBS approval of the meter type shall be submitted before contract signing".

77. The applicants contend that the Request made specific reference to Clause 5. 4.2 (Section XIX) of the Tender Document which clause related to the process of approval of meter types and not the mandatory KEBS certificates required under Clause 6. 1.10 (Section VI of the Tender Document as read with Clause 6, Section XIX of the Tender Document). Therefore, the purported Request for Clarification therefore related to a matter not relevant to the mandatory requirements of the Tender Document and could not be the basis of seeking to waive such mandatory requirements.

78. The Board however found, based on clause 3. 7 of the tender document as read with section 75(1) and (2) of the Act that once a prospective bidder requests for a clarification and receives an answer from the procuring entity the response amends and becomes part of the tender document and may in certain instances waive some of the requirements which contradict the issue clarified. Section 75(1), (2) and (3) of the Act provides as hereunder:

(1) A procuring entity may amend the tender documents at any time before the deadline for submitting tenders by issuing an addendum without materially altering the substance of the original tender.

(2) An Amendment may be made on the procuring entity's own initiative or in response to an inquiry by a candidate or tenderer.

(3) A procuring entity shall promptly provide a copy of the addendum to each person to whom the procuring entity provided copies of the tender documents.

79. Based on the foregoing the Respondent found that in view of the clarification such a certificate or certificates could be submitted at the point of signing the contract hence bidders could not be declared unresponsive at the preliminary stage on non submission of the said certification. However as was held in East African Railways Corp. vs. Anthony Sefu Dar-Es-Salaam HCCA No. 19 of 1971 [1973] EA 327 an allegation that a Tribunal has misconstrued the provision of the law, regulation or a point of law does not entitle the court to question the decision reached. Whereas that may be a ground of appeal, it does not amount to a ground for judicial review. It ought to be appreciated that there is a distinction between taking into account relevant or irrelevant matters which are grounds for judicial review and merely misconstruing a statutory provision or regulation which does not ipso facto constitute grounds for judicial review.

80. In this case the issue in contention is the understanding given to the Request for Clarification made by the interested party. In my view the conclusion made by the Respondent cannot be faulted. The applicants contended that the decision of the Respondent was akin to applying the principle of legitimate expectation in order to defeat the law. With due respect the Respondent simply applied the law as provided under the Act. It did not purport to import the principle of legitimate expectation as alleged by the applicants herein.

81. With respect to the contention that the response to the request for clarification was provided only to the interested party contrary to Clause 3. 6 (Section III of the Tender Document), the obligation to inform the bidders of the clarification was on the 1st applicant. It cannot rely on its own failure to comply with the contents of its own tender document to the detriment of the interested party. In any case there is no allegation that any of the other bidders whose bids were found to have been unresponsive were victims of the failure to furnish KEBS certification mark in order for the Court to find that the said bidders were treated unfairly.

82. It was contended that the “Further Supplementary Affidavit/Statement” which it introduced the issue of the winning bidder, may not have submitted Audited Accounts as per the Tender Document, a completely new matter that had not been set out in the initial Request for Review filed on the 15th of November 2016, constituted a new ground well outside the statutory period of seeking a review and was thus time-barred. This contention was based on the aforesaid section 167(1) of the Act. That section provides as follows:

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.

83. A strict reading of the said section does not expressly bar the introduction of or amendment of the grounds relied upon in the request for review. In its decision, the Board found that in order to arrive at a just decision in the matter it was incumbent upon it to examine the entire process as a whole including the eligibility of the successful bidder to participate in the tender since the eligibility of all the bidders forms part of the tender process and whether an applicant raises it or not the Respondent is bound to  investigate the same  as long as it gives the parties to the proceedings before it an opportunity to address the issue.

84. The Board’s power in the exercise of its review jurisdiction was explained by the Court of Appeal decision in Kenya Pipeline Company Limited vs. Hyosung Ebara Company Limited & 2 Others (2012) e KLRwhere the Court expressed itself as follows:

“The Review Board is a specialized statutory tribunal established to deal with all complaints of breach of duty by the procuring entity…S.98 of the Act confers very wide powers on the Review Board. It is clear from the nature of powers given to the Review Board including annulling, anything done by the procuring entity and substituting its decision for that of the procuring entity that the administrative review envisaged by the Act is indeed an appeal. From its nature the review board is obviously better equipped than the High Court to handle disputes relating to breach of duty of the procuring entity. It follows that its decision in matters within its jurisdiction should not be lightly interfered with. Having regard to the wide powers of the Review Board we are satisfied that the High court erred in holding that the Review Board was not competent to decide whether or not the 1st respondent’s tender had met the mandatory conditions. The issue whether or not the 1st Respondent’s tender was rightly rejected as unresponsive was directly before the Review Board and the Board had jurisdiction to deal with it. In conclusion, it is manifest that the application for Judicial Review was not well founded. The 1st Respondent did not establish that the Review Board had acted without jurisdiction or in excess of jurisdiction or in breach of natural justice or that the decision was irrational. The Judicial review was not confined to the decision making process but rather with the correctness of the decision on matters of both law and fact. So long as the proceedings of the Review Board were regular and it had jurisdiction to adjudicate upon the matters raised in the Request for Review, it was as much entitled to decide those matters wrongly as it was to decide them rightly. The High Court erred in essence in treating the Judicial Review Application as an appeal and in granting review orders on the grounds which were outside the scope of Judicial Review jurisdiction”.

85. This was the position adopted in Republic vs. Public Procurement Administrative Review Board & 3 others Ex-Parte Olive Telecommunication PVT Limited [2014] eKLR, in which the Court expressed itself as follows:

“Before dealing with the issues raised it is important for the Court to deal with the scope of the request for a review undertaken by the Respondent under the Act.  In our view a review is not an appeal.  Section 93(1) of the Act provides:

Subject to the provisions of this Part, any candidate 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 as in such manner as may be prescribed.

“Administrative review” is defined by Black’s Law Dictionary, 9th Edition at page 1434 inter alia as “review of an administrative proceeding within the agency itself” while Ballentines Law Dictionary at page 13 defines “administrative proceeding” as “a proceeding before an administrative agency, as distinguished from a proceeding before a court. Compare judicial proceeding”. What then is expected of the Respondent in exercising its jurisdiction on a request for review? A recent articulation of the elements of procedural fairness in the administrative law context was provided by the Supreme Court of Canada in Baker vs. Canada (Minister of Citizenship & Immigration) 2 S.C.R. 817 6 where it was held:

“The values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decision affecting their rights, interests, or privileges made using a fair, impartial and open process, appropriate to the statutory, institutional and social context of the decisions.”

The Court further emphasized that procedural fairness is flexible and entirely dependent on context.  In order to determine the degree of procedural fairness owed in a given case, the court set out five factors to be considered: (1) The nature of the decision being made and the process followed in making it; (2) The nature of the statutory scheme and the term of the statute pursuant to which the body operates; (3) The importance of the decision to the affected person; (4) The presence of any legitimate expectations; and (5) The choice of procedure made by the decision-maker…“Review” is defined in Black’s Law Dictionary, 9th Edition at page 1434 inter alia as “Consideration, inspection, or reexamination of a subject or thing.”  Ballentines Law Dictionary on the other hand defines the same word at page 482 inter alia as “A reevaluation or reexamination of anything.”  Clearly a review is much wider in scope than an appeal.

86. Therefore since the Respondent’s jurisdiction in the exercise of its powers of review are wider, it may well be entitled to consider the legality and constitutionality of the decision made by the Procuring Entity and make appropriate orders since as appreciated by the parties herein, section 173 of the Act, confers wide powers to the Respondent including annulling anything done by the Procuring Entity in the procurement proceedings, or indeed annulling the procurement proceedings in their entirety; giving directions to the Procuring Entity with respect to anything to be done or redone; or substituting its decision for any decision of the Procuring Entity. It is therefore my view that if the Respondent reasonably found that the criteria adopted by the Procuring Entity would not achieve the principles under Article 227 of the Constitution, it could as well exercise its powers under section 173 of the Act.

87. It is therefore my view that as long as the parties are given adequate notice of the grounds upon which the Review Board intends to conduct its request and they are accorded opportunity of addressing the said grounds, it cannot be said that their rights to fair administrative action and to be heard were violated.  In this case it is not alleged that the applicants were never notified of the so called fresh ground. In fact that ground was the basis of the preliminary objection. Therefore the applicants were duly notified of the grounds upon which the requests for review were to be argued.

88. It was contended that the Request for Review is not accompanied by a deposit as required under section 167(2) of the Public Procurement and Assets Disposal Act, 2015. The said provision provides as hereunder:

A request for review shall be accompanied by such refundable deposit as may be prescribed in the regulations, and such deposit shall not be less than ten per cent of the cost of the contract.

89. This Court has had occasion to deal with a provision couched in similar terms being section 175(2) of the Act which provides as hereunder:

The application for a judicial review shall be accepted only after the aggrieved party pays a percentage of the contract value as security fee as shall be prescribed in Regulations.

90. In Republic vs. Public Procurement Administrative Review Board & 2 others Ex Parte Kenya National Highway Authority [2016] eKLR this Court expressed itself as hereunder:

“…since section 175(2) of the Act places an obligation on the aggrieved party to pay a prescribed percentage of the contract value as security fee, I am unable to agree with the applicant that the said provision does not apply to it. As to what percentage is required to be paid, is a matter for the regulations. It is however contended which contention is not disputed that the regulations prescribing percentages are yet to be formulated. It is my view that section 175(2) of the Act with respect to payment of the percentage can only be implemented after the Regulations are in place. It is therefore my view and I hold that this application cannot be disallowed on the basis of the failure to pay a percentage which is yet to be prescribed.”

91. It is on that basis that I find the position taken by the Respondent on the issue incapable of being faulted.

92. . According to the applicants, section 171 of the Act requires that the Board renders its ruling within 21 days of receiving a request for review. As the request was filed on 15th November 2016, it was contended that the Board was required to give its decision concerning this Request by 6th of December 2016. However, the Board delivered its ruling in respect of this Request for Review on 7th December 2016 outside the mandated timeline. It was therefore the applicants’ case that the Ruling of 7th December 2016 having been given outside the required time as set out in the Act is therefore invalid, void , of no effect and without jurisdiction.

93. This Court in Kate Kokumu vs. University of Nairobi [2016] eKLR at para 58 expressed itself as hereunder:

“…once the 14 days allowed by Article 25(2) of the SONU constitution expired by effluxion of time, there was no matter pending before the panel which it could rule upon. The law as I understand it is that a decision made by a body outside the period prescribed for doing so is clearly a decision made without jurisdiction and is therefore a nullity.”

94. In my view unless the Court finds that the timelines provided in a statute is unlawful or is not mandatory but simply directory, the failure to comply therewith renders the decision unlawful. In this case the Respondent by its ruling on preliminary objection delivered on 30th November, 2016 was alive to this fact when it held, based on its decision in Paarl Media (Pty) vs. The Independent Electoral and Boundaries Commission that “unlike the time for filing a Request for Review under the Act which are mandatory, all the other timelines in the Regulation are discretionary”

95. With respect to reckoning of time, section 57(a) of the Interpretation and General Provisions Act provides as follows:

In computing time for the purposes of a written law, unless the contrary intention appears, a period of days from the happening of an event or the doing of an act or thing shall be deemed to be exclusive of the day on which the event happens or the act or thing is done.

96. This provision was interpreted by this Court in Republic versus Public Procurement Administrative Review Board & 4 Others ex parte J. Knieriem BV [2016] eKLR where the court stated as follows at paragraph 28:

“It is therefore my view and I so find that section 57 of the Interpretation and General Provisions Act, applies to the timelines under Public Procurement and Asset Disposal Act and in particular section 175(1) thereof and hence the date of the decision is excluded from the reckoning of time. As parties are agreed that if the date of the decision is excluded then these proceedings were commenced within the prescribe 14 days, it follows that these proceedings cannot be faulted on that basis.”

97. As the request was filed on 15th November 2016, that day was excluded in reckoning of time. However the 21st day from 16th November, 2016 was included in the computation of time. As the Respondent itself appreciated, “owing to the fact that the 21 days period within which the Request for Review ought to be determined under the provisions of section 171 of the Act shall expire on 6th December, 2016 both the procuring entity and the successful bidder shall file their responses by the close of the business on 1st November, 2016”.

98. It is therefore clear that the Respondent was alive to the fact that it was required to make is determination by latest 6th December, 2016. Notwithstanding this realisation, the Respondent gave its decision on 7th December, 2016. With due respect the Respondent’s insistence that its decision given on 7th December, 2016 was within the prescribed period is dishonest.

99. As there was no justification for not complying with the statutory timelines, the Respondent’s decision cannot be upheld.

100. As regards the failure to furnish the applicants with the reasons for the decision, I can do no more but to reiterate this Court’s position in Republic vs. Public Procurement Administrative Review Board & 2 Others Ex Parte International Research and Development Actions Ltd [2017] eKLR that:

“It was contended that the Board’s failure to furnish the applicant with the decision in good time after the delivery of the decision violated the Applicant’s rights. In my view, Article 47 of the Constitution requires that parties to administrative proceedings be furnished with the decision and the reasons therefor within a reasonable time in order to enable them decide on the next course of action. It is not merely sufficient to render a decision but to also furnish the reasons for the same. Accordingly where an administrative body unreasonably delays in furnishing the parties with the decision and the reasons therefor when requested to do so, that action or inaction may well be contrary to the spirit of Article 47 aforesaid. However, since these proceedings were instituted within time nothing of substance turns on the said issue.”

101. I must however emphatically state that the practice of the Respondent Board making decisions and failing to furnish parties with the decisions ought to stop. It is clearly a violation of Articles 10 and 47 of the Constitution as well as the provisions of the Fair Administrative Action Act.

102. Having considered the issues raised in these consolidated applications the inescapable conclusion I come to is that the Respondent’s decision having been admittedly made outside the 21 days’ statutory period must be set aside.

Order

103. Consequently these consolidated applications succeed and an order of certiorari is hereby issued removing into this Court for purposes of being quashed, the entire proceedings in Public Procurement Administrative Review Board Application No. 96 of 2016 between Magnate Ventures Limited and the Kenya Power and Lighting Company Ltd together with the Ruling delivered on 7th December, 2016 and consequential Orders thereof which proceedings and ruling are hereby quashed.

104. Pursuant to section 175(7) of thePublic Procurement and Asset Disposals Act,there will be no order as to costs.

105. Orders accordingly.

Dated at Nairobi this 18th day of September, 2017

G V ODUNGA

JUDGE

Delivered in the presence of:

Miss Wahura for Mr Mwangi for the 2nd applicant

Miss Aisha Namodi for the 2nd Respondent

CA Ooko