Republic v Public Procurement Administrative Review Board Ex parte Liason Healthcare Limited; Accounting Officer, Parliamentary Joint Services, Parliamentary Service Commission & Minet Kenya Insurance Brokers Limited (Interested Parties) [2022] KEHC 2392 (KLR) | Public Procurement | Esheria

Republic v Public Procurement Administrative Review Board Ex parte Liason Healthcare Limited; Accounting Officer, Parliamentary Joint Services, Parliamentary Service Commission & Minet Kenya Insurance Brokers Limited (Interested Parties) [2022] KEHC 2392 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW DIVISION

JUDICIAL REVIEW MISCELLANEOUS APPLICATION NO. E204 OF 2021

REPUBLIC..........................................................................................................APPLICANT

VERSUS

PUBLIC PROCUREMENT ADMINISTRATIVE REVIEW BOARD....RESPONDENT

AND

THE ACCOUNTING OFFICER,  PARLIAMENTARY JOINT SERVICES,

PARLIAMENTARY SERVICE COMMISSION.....................1ST INTERESTED PARTY

MINET KENYA INSURANCE BROKERS LIMITED.........2ND INTERESTED PARTY

EX-PARTE LIASON HEALTHCARE LIMITED

JUDGMENT

1.  The Ex parte Applicant herein aggrieved by the Respondent’s decision dated 14th December,2021 in Request for Review Application No.142 of 2021 filed a Chamber Summons application dated 27th December,2021 seeking leave to apply for an Order of Certiorari against the decision of the Respondent. This Court in its ruling dated 28th December,2021 granted the Ex parte Applicant leave to apply for the said orders culminating in the filing of the Motion now before this Court. The Motion is dated 28th December,2021 and it seeks the following Orders;

(i)  An order of Certiorari be and is hereby issued to remove to the court for the purposes of being quashed the decision of the Respondent dated 14th December, 2021 in Request for Review No.142 of 2021 and more specifically the Respondent’s decision that the 1st Interested Party fairly evaluated the 2nd Interested Party’s tender in respect of Tender No.PJS/007/2020-2021; Tender for Provision of Medical cover for Members of Parliament.

(ii) An Order that the Honourable Court remands the proceedings in Request for Review Application NO.142 of 2021 to the Respondent to review its decision dated 14th December, 2021 and more specifically the Respondent’s decision that the 1st Interested Party fairly evaluated the 2nd Interested Party’s tender in respect of Tender Number PJS/007/2020-2021; Tender for Provision of Medical cover for Members of Parliament as per the directions that may be issued by the court herein.

(iii)   Any other or further orders, writs and directions that this Honourable Court considers appropriate and just to grant herein.

(iv)  The costs of this Application be provided for.

2.        This Application is supported by the grounds on its face and on a Statutory Statement and Verifying Affidavit both of which are dated 27th December,2021. The Affidavit is sworn by James Mwangi, the Director Finance and Strategy of Liaison Healthcare Limited.

3.        It is the applicant’s case that the 1st Interested Party advertised for the provision of medical covers for members of Parliament under Tender No.PJS/007/2020-2021 on 17th of September 2021, upon which the Ex parte Applicant herein submitted its tender document bid for the sum of Kshs. 358,379,524. 00. The closing dated for bids was 27th October,2021.

4.        It is averred that during the tender opening meeting, the Ex parte Applicant’s representative who was in attendance noted that on some of the initial pages of the 2nd Interested Party’s tender document no serialization had been done. Subsequently, in a letter dated 17th November,2021 the 1st Interested Party notified the ex parte Applicant that it had not been successful in its bid and that the 2nd Interested Party was the successful bidder.

5.        Mr. Mwangi averred that it is on this ground that Ex parte Applicant filed Request for review No.142 of 2021 challenging the award of the said tender. In the Request for review the Ex parte Applicant herein argued that the 1st Interested Party had failed to meet the tender conditions with respect to the mandatory requirement on chronological serialization by way of pagination, and that the legal exception on minor deviations only applied to non-mandatory requirements. The 1st Interested Party in failing to ensure that all tenders met the mandatory requirements and criteria of evaluation set out in the subject tender document accorded the 2nd Interested Party undue and unfair advantage.

6.        The deponent swore that he was aware that at the time, the Ex parte Applicant was providing the services forming the subject matter of the said Tender and that it was still capable of providing the said services pending the hearing and determination of the judicial review proceedings herein. Further, that extensions of contracts in the nature of provision of medical cover where there may a be a delay in entering into a new contract due to lawful reasons is allowed in the industry practice.

7.        It was averred that the Ex parte Applicant is aggrieved by the decisions of the Respondent and will, stand to suffer from the same on grounds that the Respondent erred by failing to give due consideration to the untrue factual averment by the 1st Interested Party that its Evaluation Committee found all tenders to be responsive yet the Respondent had established a contrary position being that the second, third and fourth pages of the 2nd Interested Party’s document had not been numbered.

8.        In addition, it is the ex parte applicant’s case that the Respondent failed to give due consideration to the false deposition by the 2nd Interested Party yet it had established that the 2nd Interested Party’s tender document was not numbered. It was urged that the Respondent also erred by failing to give due consideration to the 2nd Interested Party’s conduct of providing a letter dated 27th October, 2021 addressed to the 1st Interested Party as its fifth page of the tender. The respondent is said to have erred in its analysis of the 2nd Interested Party’s tender document tampering on account of pagination and binding as it had no way of verifying interference of tender documents or lack thereof.

9.        Further that the Respondent failed to exercise its power in accordance with Article 227 (1) of the Constitution and the applicable provisions of the Public Procurement and Asset Disposal Act, 2015 in relation to its determination on the issue of tender pagination and serialization of the subject tender.

10.      It was averred that the Respondent’s decision was manifestly arbitrary as it failed to take into consideration the following provisions of the Tender document;

“INVITATION TO TENDER

8. The Tenderer shall chronologically serialize all pages of the tender documents submitted. Format 1,2,3,4,5………n (where n is the last page number) including all attachments.”

SECTION III-EVALUATION AND QUALIFICATION CRITERIA

B) Stage One Mandatory Requirements (to be evaluated ‘Yes of No’ basis:

r. Presentation of a well bound and properly paginated tender document including the attachments.”

11.  The contract between the 1st and 2nd Interested Party is challenged as unlawful having been entered into before the lapse of 14 days from the date of the decision of the Respondent contrary to the provisions of Section 175of thePublic Procurement and Asset Disposal Act (PPADA). It was Mr. Mwangi’s deposition that from the foregoing the prayers sought should be granted in the interest of justice.

12.     The Respondent in opposing the Notice of Motion application before this court filed a Replying Affidavit sworn by Philip Okumu, the Acting Board Secretary of the Respondent herein dated 4th February,2022.

13.     In response to the Ex parte Applicant’s averments, Mr. Okumu averred that the respondent, when determining the issue of paginating, observed that for one to know whether a tender, other than that person’s tender, is paginated, one must have knowledge of the contents of a tender which content is confidential information as envisaged under Section 67(1)(d) of the Act.

14.     The Respondent, it is urged, carefully studied the 2nd Interested Party’s original tender documents which formed part of the confidential documents submitted by the 1st Interested Party and noted that the 2nd Interested Party submitted a tape bound (in blue tape) tender containing 932 pages. The first page was numbered 1 and the last page of the tender is numbered 932. However, the 2nd, 3rd and 4th pages of the tender were not numbered but the numbering continued from page ‘5’ all the way to ‘932’.

15.     The Board, it is urged, noted the said pages 2, 3 and 4 contained a Table of Contents that indicated where certain documents were to be found within the tender document. Page 5 of the Tender Document contained a letter dated 27th October,2021 from the 1st Interested Party addressed to Minet Kenya numbered ‘5’ and subsequently the numbers went on from ‘6’ to ‘932’.

16.     It was urged that the items contained in a Table of Contents usually do not contain an item referred to as ‘Table of Contents’ and as such the author of the said document cannot allocate a page number to the same. Mr. Okumu averred that this explains why in the practice of publishing articles and books, table of contents if paginated adopt a different series and sequence from the other pages.

17.     Further that as was held in Public Procurement Administrative Review Board (PPARB) Application No.74 & 77 of 2020 FCM Travel Solutions t/a Charleston Travel Limited & Another vs. The Accounting Office Kenya Ports Authority & Another and Magical Holidays Limited & Another, it is not necessary to paginate the Table of Contents as one is likely to cite a wrong page number. In the foregoing omission of paginating the table of contents in a tender would help in ensuring that the pagination of the tender is not done by use of a different series.

18.     It was averred that the drafters of the Section 74(1) (i) of the PPADA, 2015, intended to prevent instances where the tenderer and procuring entity colluded by inserting or removing documents in the tenderer’s tender. The Respondent in Public Procurement Administrative Review Board (PPARB) Application No.129 of 2019 Island Homes Developers vs. Kenya Ports Authority & 2 Otherselucidated the purpose and significance of serialization and pagination of tenders. The deponent averred that the Respondent had carefully studied the 2nd Interested Party’s tender document and confirmed that no documents had been inserted or removed.

19.     The said tender document was said to have been consistent in the manner in which it was numbered from the 5th page to the last page. There was also no allegation that the said tender document was tampered with either by the Procuring Entity acting alone or in collusion with the 2nd Interested Party. Further that if there was any insertion of pages then it is most likely that the sequence of pages would have been interfered with. The deponent averred that under Clause 12 of Section I the tender documents were to be paginated. It was argued that a Table of Contents does not form part of the mandatory documents of a tender and as such it does not require pagination. Owing to the evidence produced before it the Respondent found that the 1st Interested Part had fairly evaluated the 2nd Interested Party’s tender.

20.     The 1st Interested Party filed a Replying Affidavit sworn by Keith Kisinguh, the Chief Procurement Officer dated 30th December,2021. Mr. Kisinguh deponed that through an agreement dated 3rd December, 2019, the Ex parte Applicant herein was contracted to provide medical insurance up until 31st December, 2020.

21.     That in light of the looming contract expiry date the Parliamentary Service Commission entered into a 2-year agreement with the 2nd Interested Party commencing 1st January, 2022 following a fair and competitive tendering process. It was contended that the Minet Kenya had the lowest bid and that there were two other bidders with lower bids as compared to that offered by the Ex parte Applicant. The deponent averred that even if this Honourable Court was to allow the Ex parte Applicant’s application and order a fresh evaluation, the Ex parte Applicant herein would still not be awarded the tender in line with procurement laws.

22.     The deponent averred that the Ex parte Applicant having sought an Order of Certiorari, the Court has to weigh whether the remedy is efficacious. It was argued that in this case the Ex parte Applicant’s efforts require this Honourable Court to undertake an academic exercise as the Liaison Healthcare Limited stands to gain a paper judgment as its bid was not the lowest evaluated bid. Further that the Ex parte Applicant seeks the Court to engage in a merit review exercise as opposed to judicial review.

23.     The 2nd Interested Party also opposed the Notice of Motion application before this court by filing a Replying Affidavit sworn by Edwin Macharia, the General Manager, Head of Healthcare Services at Minet Kenya Insurance Brokers Limited.

24.     In the affidavit Mr. Macharia deponed that in an advertisement placed in the local dailies by the Procuring Entity, interested bidders were invited to participate in the tendering process for the PROVISION OF MEDICAL SERVICES FOR MEMBERS OF PARLIAMENT, VIDE TENDER NO. PJ/0007/2020-2021. It was averred that Minet Kenya Insurance Brokers Limited submitted its bid by 27th October,2021 which was the stipulated deadline as per the additional addendum.

25.     It was deposed that during the tender opening meeting the 2nd Interested Party’s representative Muhammud Ali was present and that he confirmed the following bidders had tendered their bids as read out by the tender committee;

BIDDERBID AMOUNT(KSHS)

(i)   Minet Kenya Insurance Brokers Limited             344,921,960/=

(ii)  AAR Insurance Company                                          345,921,960/=

(iii) First Assurance Company                                         348,015,966/=

(iv)  Zamara Risk                                                                  350,792,452/=

(v)   Liaison Insurance Brokers                                       358,379,524/=

(vi)   Kenbright Brokers                                                      366,502,960/=

(vii)  APA Insurance Company                                          379,937,092/=

(viii)  Britam Insurance                                                        397,391,830/=

(ix)  CIC Insurance                                                               422,348,125/=

26.      That the Procuring Entity awarded the tender to Minet Kenya Insurance Brokers Limited through a Letter of Notification of Award dated 11th November, 2021. The Ex Parte Applicant herein aggrieved by this decision filed a Request for Review Application dated 23rd November,2021 before the Respondent which request was dismissed on 14th December, 2021. This prompted the filing of the application now before this court seeking an Order of Certiorarito quash the said decision and for Respondent to review its decision.

27.      The deponent further contended that at the time it was necessary to enter into the contract immediately after the Respondent’s decision for reasons that the contract between Liaison Healthcare Limited and the 1st Interested Party was coming to an end on 31st Decemeber,2021, and the new contract set to come into effect on 1st January,2022. It was averred that it was necessary for the same to be done considering the nature of the services to be provided and the risk that members of parliament would be without medical cover.

28.      Further, that Section 175 of the Public Procurement Act and Asset Disposal Act that provides for the 14-day period within which to file judicial review proceedings does not bar parties from entering into a contract.

29.      It was also deposed that the subject tender herein is also the subject of ConstitutionalPetition No. E401 of 2021 where Justice A.C. Mrima declined to grant conservatory orders on grounds that Members of Parliament stand to suffer damage to their health due to the possibility of exposing them to no medical cover by 1st January,2022.

30.      It is urged that the information alleged to have been in the knowledge of the applicant’s representative is confidential information. It would thus be illegally obtained information that cannot be relied on pursuant to Section 67(1)(d)of thePublic Procurement and Asset Disposal Act.

31.      Mr. Macharia, averred that evaluation of bids is purely the preserve of the evaluation committee which is guided by Section 80 of the Act and that the said committee found that Minet’s tender document conformed with the eligibility and mandatory requirements.

32.      Further that the grounds under which the Application before this court is founded have been unsubstantiated for reasons that the Board acted within the confines of the law and in correct interpretation of law in finding that it was not necessary for the 2nd Interested Party to allocate a page number to the Table of contents as it does not form part of the mandatory documents of a tender.

33.      It was deposed that the Ex parte Applicant has failed to prove the alleged illegality and irrationality to warrant the grant of Judicial Review Orders and that its intention is to have the contract extended and not an honest appeal against the decision of the Respondent.

34.      In conclusion, it was averred that Minet has the required professional skills, personnel and resources to provide the said services under the Tender. In the foregoing the Application herein is devoid of merit, frivolous and vexatious and is clearly calculated to defeat the procurement process. It should therefore be dismissed with costs.

35.      The Application was a canvassed by way of written submissions. The Ex parte Applicant herein filed written submissions dated 13th January,2022. Learned counsel began by citing the case of Republic v. Public Procurement Administrative Board & 2 Others Ex Parte Higawa Enterprises Ltd [2017] eKLRwhere the Court addressed its mind on the requirements for the grant of Judicial Review orders.

36.      Learned counsel submitted that judicial review now also includes merit review particularly on the basis of the Constitution as was held in the case of Republic v. Public Procurement Administrative Board; Kenya Airports Authority & Another Ex parte Kenya Airports Parking Services Limited [2019] eKLRwhere the court held as follows;

“41. Consequently, there are now established grounds for judicial review that require Courts to review the substance of a decision, quite apart from the jurisdictional and procedural aspects of decision making. These grounds are now explicitly provided for in section 7 of the Fair Administrative Action Act, and include the grounds of relevant and irrelevant considerations in a decision, the rationality and reasonableness of a decision, its proportionality, whether legitimate expectations have been violated by the decision, and whether the decision was made for proper or improper purposes. These grounds are questions of law on which there are settled applicable principles, and which of necessity also entail a merit review of the impugned decision in the context of the adduced evidence.”

37.      It was counsel’s submission that the Respondent’s decision is unlawful, arbitrary, irrational and illegal for being contrary to Section 79 (1) of the PPAD Act, 2015 on responsiveness of tenders and Section 80(2) on Evaluation of Tenders. Further, that the findings of the Respondent at page 38 acknowledged that the 2nd Interested Party’s tender document fell short of the mandatory requirements.

38.     Learned counsel submitted that the Respondent’s decision to ignore and/or overlook such criterion was unreasonable and irrational and that it is only the 2nd Interested Party’s bid that contained such a discrepancy and therefore allowing it would accord Minet an unfair and undue advantage over all the other tenderers. The cases of Blue Seal Services Ltd & Another vs. Public Procurement Administrative Review Board & Another [2016] eKLR, Republic vs. Public Procurement Administrative Review Board & 2 Others Ex parte Coast Water Services Board & Another [2016] eKLR, Republic vs. Public Procurement Administrative Review Board & 2 Others Ex parte Coast Water Services Board & Another [2016] eKLR,were cited to support this argument.

39.     It was submitted that in the case of Republic vs. Public Procurement Administrative Review Board & 2 Others Ex parte Coast Water Services Board & Another [2016] eKLR,Aburili, J granted an Order of Certiorari against the Respondent’s decision on grounds that the Review Board was under a legal duty to consider all aspects of the tender document, and any deviation from it ought not to have been allowed unless the tender document itself allowed for such deviation. Counsel also cited the case of Republic vs. Public Procurement Administrative Review Board & 2 Others Ex parte BABS Security Services Limited [2018] eKLR.

40.     It was the ex parte Applicant’s submission that, the respondent erred in its finding on document tampering since the respondent had no way of verifying the fact of tender document interference or lack thereof in absence of any evidence on the chain of custody of the subject tender documents held in the custody of the 1st Interested Party

41.      In regard to the letter from the 1st Interested Party to Minet Kenya being attached to the tender document it was submitted that fairness in a procurement process dictates that all bids ought to be considered on the basis of the compliance with the express requirements of the tender document without more.

42.     In conclusion, counsel implored the Court to grant the orders sought by the Ex parte Applicant in its Statutory Statement dated 27th December, 2021 as well as the Notice of Motion Application dated 28th December,2021.

43. The Respondent in its written submissions dated 4th February,2021 identified one issue for determination and that is whether the Respondent’s decision was irrational an illegal for being contrary to the provisions of Section 79(1) of the Act. It was counsel’s submission that the Respondent lawfully discharged its duty by upholding the principles that govern procurement proceedings and asset disposal as provided under the Constitution, 2010, PPAD Act,2015 and PPAD Regulations, 2020. Counsel urged the court to dismiss the application with costs.

44.      The 2nd Interested Party also filed written submissions dated 21st January,2022 in which one issue was also identified for determination and that is whether the Respondent’s decision was unlawful, arbitrary, irrational and illegal for being contrary to the express provisions of Section 79(1)of thePPAD Act.

45.     On the said issue counsel submitted that the main grounds for review against the Respondent’s decision is mainly that it is illegal and irrational for failing to adhere to the express conditions of the law. To support this argument counsel cited the case of Council of Civil Service Unions v. Minister for the Civil Service.

46. On whether the scope of judicial review includes merit review counsel cited the case of Republic vs. Public Procurement Administrative Review Board; Principal Secretary, State Department of Interior, Ministry of Interior and Co-ordination of National Government (Interested Party); Ex parte Applicant CMC Motors Group Limited [2020] eKLRwhere the court in a nutshell held that Judicial Review proceedings are only concerned with the decision making process and not the decision itself.

47.      Learned counsel implored the court not to interfere with the Respondent’s decision as the same would be exercising its appellate decision. To buttress the Respondent’s argument counsel cited the case of Republic vs. Public Procurement Administrative Review Board; Principal Secretary, State Department of Interior, Ministry of Interior and Co-ordination of National Government (Interested Party); Ex parte Applicant CMC Motors Group Limitedsuprawhere the court held as follows;

“The court’s role remains strictly supervisory. It is concerned with determining whether there has been a lawful exercise of power having regard, in particular, to the terms, scope and purpose of the statute conferring the power. In circumstances where reasonable minds might differ about the outcome of, or justification for, the exercise of power, or where the outcome falls within the range of legally and factually justifiable outcomes, the exercise of power is not legally unreasonable simply because the court disagrees, even emphatically, with the outcome or justification. If there is an evident, transparent and intelligible justification for the decision or if the decision is within the ‘area of decisional freedom’ of the decision-maker, it would be an error for the court to overturn the decision simply on the basis that it would have decided the matter differently.”

48.      In conclusion, it was submitted that the Ex parte Applicant has failed to prove the alleged grounds to warrant the orders sought and that the application is devoid of merit and lacks any foundation in. It was argued that the same ought to be dismissed with costs.

49.      I have carefully considered the Notice of Motion, the affidavit evidence and learned submissions by counsel on record. Of determination is whether the respondent’s decision to the effect that the 1st Interested Party fairly evaluated   the 2nd Interested Party’s tender was unlawful, irrational and illegal.

50.      The mainstay of the applicant’s case is that the 2nd Interested Party’s tender document was not responsive as it was not paginated. It was the applicants case at the respondent was that the procurement proceedings undertaken by the 1st Interested Party herein be annulled for non-compliance with the mandatory tender requirements as per the provisions of Section 79(1) and 80(2) of the PPADA. The allegation was that James Godwin Odhiambo Bunde, the business development manager at the applicant’s had noted that the 2nd Interested Party’s tender was not properly paginated.

51.      Article 227 of the constitution sets the threshold to be met for a valid tender process. The constitution demands that the process must be fair, equitable, transparent, competitive and cost effective. The subject tender herein being a public procurement is subject to the constitution and the PPADA. Pursuant to Section 28 of the PPADA the respondent has the mandate of reviewing, hearing and determining tendering and asset disposal disputes. It is worthy of emphasis that a person aggrieved by a decision of the respondent may seek judicial review by the High court within 14 days of the decision by the respondent. In considering the issues before this court, the court will be alive to the fact that the open path to an aggrieved party is judicial review and not an appeal.

52.      The Fair Administrative Action Act (FAAA) has breathed some life in the courts power to consider issues in judicial review beyond the traditional scope of illegality, irrationality and unreasonableness. This allows the court to delve into merit review of an impugned decision but in a limited manner, the court in Republic vs Public Procurement Review Board; Kenya Airports Authority and Another Ex Parte Kenya Airports Parking Services Ltd (2019) eKLR held;

‘’ Consequently, there are now established grounds for judicial review that require courts to review the substance of a decision, quite apart from the jurisdictional and procedural aspects of decision making. These grounds are now explicitly provided for in Section 7 of the Fair Administrative Action Act, and include the grounds of relevant and irrelevant considerations in a decision, its proportionality whether legitimate expectations have been violated by the decision, and whether the decision was made for proper or improper purposes. These grounds are questions of law on which there are settled applicable principles, and which of necessity also entail a merit review of the impugned decision in the context of adduced evidence’’.

53.      Section 7 of the FAAA is not in my view a carte blanche to employ merit review in Judicial review proceedings. Judicial review still remains a special jurisdiction where the court’s role largely remains supervisory. The court in Republic vs Public Procurement Administrative Review Board; Principal Secretary, State Department of Interior; Ex Parte CMC Motors Group Ltd [2020] eKLRwhere declining to venture into a merit review of the decision stated;

‘’The above excerpt explains in clear terms that it is only in limited cases where a judicial review court can venture into merits as explained later. There is a long established and fundamental distinction between an appeal and review. A court of appeal makes a finding on the merits of the case before it. If it decides that the decision of the lower court or tribunal was wrong, then its sets aside that decision and hands down what it believes to be the correct judgement. By contrast, in judicial review the reviewing court cannot set aside a decision merely because it believes the decision was wrong on the merits. A court of review is concerned only with the lawfulness of the process by which the decision was arrived at, and can set it aside only if that process was flawed in certain defined and limited respects.

Judicial review is about the decision making process, not the decision itself. The role of the court in judicial review is supervisory. It is not an appeal and should not attempt to adopt the ’forbidden appellate approach’………….’’

54.      It is not enough that the court disagrees with the decision of the body under challenge in judicial review. The decisional independence of the maker must be ring fenced. This was stated clearly by the court in the above case proceeded to state;

‘’The court’s role remains strictly supervisory. It is concerned with determining whether there has been a lawful exercise of power having regard in particular, to the terms, scope and purpose of the statute conferring the power. In circumstances where reasonable minds might differ about the outcome of, or justification for the exercise of power, or where the outcome falls within the range of legally and factually justifiable outcomes, the exercise of power is not legally unreasonable simply because the court disagrees, even emphatically with the outcome or justification. If there is an evident transparent and intelligible justification for the decision or if the decision is within the ‘area of decisional freedom’ of the decision maker, it would be an error for the court to overturn the decision simply on the basis that it would have decided the matter differently.’’

55.      The respondent in its decision in this matter observed that for one to know whether a tender, other than that person’s tender, is paginated, one must have knowledge of the contents of a tender which content is confidential information. This observation was based on the fact that Section 67(1) (d) of the Act deems contents of tenders confidential. The respondent, however, evaluated the evidence and came to the conclusion that it was possible by fluke for a party to observe a page was not paginated during the flipping of pages at tender opening. In the respondent’s words they stated,

‘’To this end, and because this issue is hinged on the 2nd Respondent’s word against that of the Applicant, we find it fair to give the Applicant the benefit of doubt that it observed the 2nd Respondent’s tender was not properly paginated as alleged by the applicant. In the circumstances we cannot find that the Applicant obtained the information illegally, though the same amounts to confidential information.’’

56.      The respondent addressed the issue of the responsiveness of the 2nd Interested parties tender at length.  It gave a reasoned decision on the question of pagination. It noted that the second, third and 4th pages of the 2nd Interested Parties tender contained the table of contents and there was no introduction of a different method of serialization of the tender but was consistent in the manner in which it was numbered from the fifth page to the end (i.e. 005, 006, 007 and so on to 932. It was further noted that there was no allegation of tampering either by removal or insertion of pages.

57.      I have painstakingly considered the respondents’ proceedings.  I find no evidence of procedural flow or illegality. The respondent has not been shown to have considered irrelevant matter nor failed to consider relevant matter. The decision was rational and reasonable. The invite by the applicant is for this court to delve into a merit review of the decision in what is an appeal camouflaged as a judicial review application.

58.      I come to the conclusion that the respondent’s decision dated 14th December,2021 was not tainted with illegality, irrationality or procedural impropriety. The Notice of Motion dated 28th December 2021 is found to be without merit and is dismissed. Each party to bear its own costs.

DATED SIGNED AND DELIVERED AT NAIROBI THIS 11TH DAY OF FEBRUARY, 2022

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A.K. NDUNGU

JUDGE