Republic v Public Procurement Administrative Review Board Ex parte Lordship Africa Limited, Nairobi City County & Ederma Property Limited [2017] KEHC 2722 (KLR) | Public Procurement | Esheria

Republic v Public Procurement Administrative Review Board Ex parte Lordship Africa Limited, Nairobi City County & Ederma Property Limited [2017] KEHC 2722 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW NO.  589 OF 2017

IN THE MATTER OF AN APPLICATION BY LORDSHIP AFRICA LIMITED FOR LEAVE

TO APPLY FOR JUDICIAL REVIEW ORDERS OF CERTIORARI AND MANDAMUS

AND

IN THE MATTER OF TENDER NO.NCC/UR & H/T/514/2016-2017 REQUEST FOR

PROPOSAL (RFP)FOR THE URBAN  RENEWAL AND REDEVELOPMENTOF

PHASE 2- NGONG’ ROAD  ESTATE  THOUGH JOINT  VENTURE  PARTNERSHIP

AND

IN THE MATTER OF A DECISION BY THE PUBLIC PROCUREMENT

ADMINISTRATIVE  REVIEW  BOARD   IN RESPECT  OF AN APPLICATION

FOR  REVIEW OF THE DECISION  BY THE NAIROBI  CITY COUNTY

TO AWARD  EDERMAN PROPERTY  LIMITED  THE TENDER.

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

IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTION ACT, 2015 .

IN THE MATTER OF ARTICLES 10, 47,227 OF CONSTITUTION OF KENYA.

LORDSHIP AFRICA LIMITED...............................................EX-PARTE APPLICANT

VERSUS

PUBLIC PROCUREMENT ADMINISTRATIVE REVIEW BOARD....RESPONDENT

NAIROBI CITY COUNTY...................................................1ST INTERESTED PARTY

EDERMA PROPERTY LIMITED........................................2ND INTERESTED PARTY

RULING

1. By  a chamber summons dated  25th September  2017 and filed  in  court the same  day, the exparte  applicant  Lordship  Africa Limited  seeks leave   of this court to  institute  Judicial Review  proceedings of:

a) Certiorari  to remove  into the  High Court  and  quash  the decision of the Public Procurement Administrative  Review  Board dated 11th September 2017 handed down in Application No 78  of 2017.

b) Certiorari to remove into the High Court and quash the decision of the Nairobi City County dated 2nd August 2017 to award Tender No. NCC/UR & H/T/514/2016-2017 for Request for Proposal (RFP) for the Urban Renewal  and  Redevelopment  of Phase 2- Ngong  Road Estate through joint venture partnership to Ederman  Property Limited.

c) Certiorarito remove into the High Court and quash the entire   procurement proceedings   with respect to Tender No. NCC/UR & H/T/514/2016-2017 for Request for Proposal (RFP) for the Urban Renewal and Redevelopment of  Phase  2- Ngong  Road Estate  through  joint  venture  partnership.

d) Mandamus to compel the Nairobi City County to Commerce a fresh procurement process with respect to Tender No. NCC/UR & H/T/514/2016-2017 for Request  for Proposal (RFP) for the Urban Renewal and  Redevelopment of Phase 2- Ngong Road  Estate  though joint  Venture  Partnership

e) That the leave granted do operate as a stay of the procurement process in respect of Tender No.  NCC/UR & H/T/514/2016-2017 for  Request  for Proposal (RFP) for the Urban Renewal and  Redevelopment  of  Phase  2 – Ngong Road Estate through joint Venture Partnership, including the formation and or implementation of any contract  arising  there from.

f) That costs of the application.

2. The chamber summons  are predicated  on the grounds  set out  in the statutory statement and verifying affidavit of Jonathan  Jackson   sworn on  25th  September  2017.

3. The application for leave which was heard interpartes is opposed by the 2nd interested party Erderman Property Limited who filed an affidavit in reply sworn by Ze Yun Yang, the 2nd interested party’s Managing Director on 2nd October   2017.

4. The exparte applicant’s case is that sometime in February 2017 the 1st interested party Nairobi City County published invitations in the local dailies for the submission of bids in respect of tender Reference No. stay of the procurement process in respect of Tender No.  NCC/UR & H/T/514/2016-2017 being a request for proposal (RFP) for the Urban Renewal and  Redevelopment  of Phase 2- Ngong  Road Estate through  joint  venture partnership.

5. The applicant being an interested bidder submitted its bid on 10th March 2017 within the timelines stipulated. In accordance with the tender documents, requirements  the  applicant claims that it  submitted  a complete set of  mandatory requirements, being  the technical  bid, the  financial bid,  and the bid  security  in the sum of  shs 10,000,000.

6. It is  alleged that  tenders  were opened  on 21st April  2017  at  12. 00 noon in the presence  of the  respective  bidders  and or their representatives.

7. It is  asserted  that the 1st interested party (Procuring Entity)  was  expected, in accordance  with the  Section  126(3) of the Public Procurement  and Asset  Disposal Act, 2015 to  undertake  the evaluation exercise of the bids to determine their  responsiveness  within  21 days of the  opening  of the bids.

8. However, that upon submitting its bid  and  attending  the  tender opening,  the applicant never  heard  from the  Procuring Entity  either  within 21  days  stipulated under the law or at  all and that in July  2017, the applicant  learnt that the  tender had  been awarded  to the  2nd interested  party Ederman  Property Limited in unclear  circumstances.

9. The above situation prompted the applicant through its advocates  on record  to write to  the  County Secretary of the Procuring Entity seeking clarification  as to the  circumstances   under which the tender  was awarded  to the  2nd interested party.

10. It is  claimed that todate the  said letter  has never  received  a substantive  response  from the Procuring Entity, but  that by a letter  dated  25th August  2017  the  1st interested party  denied ever receiving the  letter of   28th July 2017  from the applicant’s  counsel.

11. That on  15th August 2017, the  applicant  received  notification from the Postal Corporation of Kenya(PCK) a notification  dated 14th August  2017  to the effect  that there  was a postal mail  at the applicant’s   Box No. 47655-00100 Nairobi GPO and that  it should collect  the mail.

12. That it was on collecting and opening  the mail  on 15th August  2017  that the exparte applicant learnt  that  it  was  a notice of  regret  from the 1st interested party (Procuring Entity) dated 2nd August  2017  informing the exparte applicant  that its  bid  was  unsuccessful,  which notification  contained  no reasons  or explanation  as to what exactly in the bid was incomplete and or  the non-responsiveness  of the exparte applicant’s bid,  contrary  to the express  provisions of Section 87(3) and 126(4) of the Act which stipulates that a losing  bidder  should be  provided  with  reasons  as to why its  bid  was  not successful. Further, it is claimed that such notification must be simultaneous with the notification to the successful bidder.

13. In this case, it is  contended  by the applicant that the Procuring Entity  used different  means to  communicate its decision to the successful  and  unsuccessful bidders  such that  the successful  bidder  was officially  informed  of the award  on  2nd August  2017  while  the  applicant   herein learnt  of the award /decision of the procuring entity 2 weeks later by which time a contract was about to be executed.  It is  claimed that the  chosen  mode of  communicating  to the applicant the outcome of the tendering process  was  deliberately  designed to block the applicant from seeking remedies  stipulated in Section  167 of  the Act  and in  total disregard  of Section 176(1) by withholding notification to an  unsuccessful bidder.

14. It is  claimed that the breaches herein complained  of undermine the  guiding  principles  set out in Section  3 of the  Act,  Article  10 of the Constitution  and  Article  227  (1)  of the Constitution  on good governance, integrity, transparency and  accountability.

15. It is further contended that  the  Procuring Entity’s  conduct is  tainted  with opaqueness, lack of transparency and breach of  the  Act and the Constitution and hence the  filing  of the Request  for Review  was filed  on 28th August  2017 with the  Review Board (respondent) seeking for annulment of the procurement   process and seeking for commencement  of fresh  procurement  process.

16. It was claimed that upon  such filing  of the Request for Review and  the Review Board  notifying  all the  parties that no contract should be entered into, the  2nd  interested  party filed  replying  affidavit  claiming  that a contract  had already been entered  into (executed)  with the Procuring  Entity  for a sum of  shs  19,698,417,830   on 17th August   2017.

17. That on  8th September  2017  the request for  review  was  heard and  judgment  reserved  for  11th September  2017   when the respondent  found that  it lacked  jurisdiction  to hear and  determine  the  Request  for  Review because  a contract  had already  been entered into between the  1st interested party  procuring entity and the 2nd interested  party and   further that the  request for review had been filed out of time  hence the request for review was struck out without  considering  the   same  on its merits.

18. According to the applicant, the purported contract is in contravention of the law Section 134(2)of the Public Procurement  and Asset  Disposal Act, 2015 which mandates  that the  accounting officer  must seek clearance of the  Attorney General  prior to the  signing of a contract whose  sum is  in excess of shs 5 billion and that such  contravention  is an offence  under Section  176(1)  of the Act.

19. In addition , it  was  contended  that the respondent’s  findings  on the question  of  time  running for the purposes  of filing of  the  request  for  review  was contrary  to Section  3(5) of the Interpretation and  General Provisions Act ( Cap 2 ) Laws of Kenya  which stipulates the time that  a person is  deemed  to have been  served by post.

20. Finally, the applicant claims that the Review Board proceeded  to grant the Procuring Entity  a go ahead  to conclude  the procurement  process  with the 2nd  interested  party hence  this  challenge  and  the leave sought.

21. The respondent  and  1st  interested party  have not filed any  responses  to the chamber summons   for leave  despite  being served for  interpartes  hearing.

22. The 2nd interested  party  who  is alleged to be the successful bidder and who has already signed a contract for the impugned tender with the procuring entity filed a replying  affidavit  sworn by its Managing  Director  Mr Ze Yun Yang contending  that the applicant  has not satisfied  the criteria for  lodging  of these proceedings because it has not demonstrated that it is a candidate  or tenderer  who claims  to have suffered  or risks to suffer  loss or damage due to  breach of a duty imposed  on a Procuring Entity  as stipulated  in Section  167(1)  of the Act.

23. It is also contended that  the applicant  did not  provide  a bid security  valid for  90 days  and  instead  provided  a bid  security  valid for  only 85  days  contrary to clause  3:11  of the  Request  for Proposal hence it  was never  qualified  to succeed  in the tender.

24. In addition, it was contended that contrary to Clause 3. 14. 2  of the Request for Proposals, the applicant   was disqualified   for including a set of conditions  accompanying its bid.  It is contended that no challenge has been levelled to the above matters.

25. It  was contended that the  exparte  applicant  instead  of filing  a request  for  review  in July upon becoming aware of the award  of the tender, chose  to write a letter contrary  to Section   167(1)  of the Act  which allows  a request for  review  to be lodged  at any time.

26. Further, that the Review Board had no jurisdiction to entertain the review as the contract had already been executed as stipulated in Section 167(1) of the Act.  That in this  case the contract  validity period  was  14 days from  2nd August  2017  hence the contract  had to be  signed  on 17th August  2017  before  19th August  2017  in accordance  with Section  135(3) of the Act.

27. That  upon signing  of the contract, performance  security  of shs 2,987,846  was paid  as stipulated  in Section 142  of Act  and so far, shs 40 million has been expended  for  mobilization  process    to ensure  breaking  ground for the  project.

28. It is further contended by the 2nd interested party that under Section 87(1) (2) (3) of the Act, there is no requirement for the Procuring Entity to notify the bidders in the same manner simultaneously and that under Section 126(4) of the Act, same time notification is not simultaneous but that in this case, the successful and unsuccessful bidders were notified on the same day.

29. It  was further  deposed  that there  is no  evidence  to support  the  allegation that the first  notification sent to the  applicant   by Postal Corporation of Kenya was  on 14th September  2017  and not  earlier.  It  was  also deposed  that in law, time begun  to run from  the day  after the posting  of the notification  which  was   5th August, 2017  as held by  the Review Board.

30. The second interested party’s Managing Director further deposed  that the Procuring  Entity has no control over Postal Corporation of Kenya hence it   could not  have manipulated the  delivery  of the notification to the  exparte  applicant  and  that no offence  under Section  176(1) (k)  of the Act   was committed.

31. It was further contended that if  the  exparte applicant  had noticed manifest  breach of the law by  the Procuring Entity, it did not have to wait until the  notification of the  award  was made  before seeking  for  review.  That  the  contract  in question  does not  involve government  spending  hence the provisions of Section 134 of the Act on the authorization by the Attorney General  with regard  to contracts  in excess  of  5 billion  does not  apply to this  case as  there is no  money  payable  by the government  to the successful bidder.

32. That in  this case, the  notification  having been  posted, properly addressed to the applicant  in accordance  with Section  3(5)  of the Interpretation and  General Provisions  Act Cap 2 Laws of Kenya, it   has not been  proved that  there was any breach.

33. That if stay  of implementation  of the contract  is granted, the  2nd interested  party  shall suffer  huge  loses yet   the  exparte  applicant  has no locus  standi  before this court having not  qualified to be awarded the tender or to  commence  proceedings  before the Review Board  hence these proceedings should be  terminated ab initio.

34. The chamber summons  was argued  orally on 3th October  2017 with the exparte  applicant being  represented  by Mr Mbaluto  advocate  and  Miss Njeri Mucheru  appearing  for the 2nd  interested  party.

35. Both counsels reiterated  the contents  of their respective  clients pleadings  and  affidavits  for and against  the application for leave  and stay which I have  reproduced  above, and  which does not  warrant  repeating.

36. However, Mr Mbaluto highlighted that the contract already executed was invalid and that at this stage the threshold for leave and stay is well established.   It  was  emphasized  that there  are serious  issues  warranting  leave which issues  touch on the law  and  with regard  to the  consent  of the Attorney General in contracts  in excess of shs  5 billion  it  was submitted  that Section 134  of  the Act  does not  distinguish  on whose benefit the funds are  meant and that the circular by the Attorney General  on the Section is at  odds  with a plain reading  of the Section 134(2) of the Act  and that the Attorney General  was  merely providing information to the exparte applicant in accordance  with the law.

37. On locus standi it   was submitted that being aggrieved  with the decision  of the Review  Board, the  exparte  applicant  has locus  standi in the matter. Further, counsel maintained that his client  received  notification on 14th August  2017  and  filed  request on  28th August  2017  within  14 days  and that they could not  have  been  served with  notification  on 2nd August  2017  as  was  held by  the Board.

38. That  the applicant only challenged  the breach  upon becoming  aware of the breach  and after  learning  of the decision so that  they could gather sufficient  material as their letters  to the Procuring Entity were  never  responded  to.

39. Mr Mbaluto urged  the court  to find that it has jurisdiction  to hear and determine this matter as illegalities cannot be overlooked.

40. On the part of  Miss Njeri  Mucheru  on behalf  of the 2nd interested  party, it  was emphasized  that  the applicant  herein  never supplied  the required  security bond  and that it gave  conditions  in its bid  which contravened  clause 3. 14. 2 of the Request   for  Proposal  ( RFP).

41. It  was  further contended  in submission  that the applicant  had not demonstrated   that it  had filed the Request  for Review  in 14 days  of the date  of the decision  or the alleged  breach which   latter is said  to have occurred  sometime  in July  2017.  That it  was not in good  faith for  the applicant to  file request  for review after notification of the award  had been send.

42. It  was further submitted that  the contract  was signed within the  tender  validity  period.  It  was further  submitted that whether or not the  contract  was valid   should have  been raised before  the  Review Board  then taken up on  appeal.

43. Counsel maintained  that Section  134  of the Act  on Attorney General’s authority in contracts exceeding five billion is only concerned with government  spending but  that in this case the only contribution by the Government  was a piece of land on which the contract  is to be undertaken  and that the value of the  said land  is not anywhere  near the  shs  5  billion as the  19 billion is being paid  by the 2nd interested party upon which the houses will be sold for the  Procuring Entity and 2nd interested party to recover their investments.

44. Further, that the Attorney General’s  letter  was written  on a without  prejudice   basis hence  it could  not be relied  upon in legal  proceedings  to enforce  rights of  any party.

45. It was further submitted that the issue of there being no  clearance  authority  from the Attorney General  to contract was never  canvassed  before the Review Board  and  was snot  a ground for  review  hence it  cannot be a  ground for  this court’s  determination. The 2nd interested  party maintained  that the applicant   has no  locus standi  before  this court  and that the  Review Board  declined  the  request  for  review  on grounds which have not been advanced here which completely  disqualifies  the  applicant.

DETERMINATION

46. I have considered the foregoing. In my view, the main issue for consideration is whether the applicant is entitled to the prayers for leave and stay.

47. The rationale for the requirement that leave be sought and obtained is to exclude frivolous vexatious or applications which prima facie appear to be abuse of the process of the Court or those applications which are statute barred. However, leave should be granted, if on the material available the court considers, without going into the matter in depth, that there is an arguable case.

48. Leave stage is a filter whose purpose is to weed out frivolous cases at the earliest opportunity, thus redeeming the pressure on the courts and needless expense for the applicant by ensuring that malicious and futile claims are weeded out or eliminated so as to prevent public bodies being paralyzed for months because of pending court action which might turn out to be unmeritorious. This is the principle espoused in the cases of   Matiba vs. Attorney General Nairobi H.C. Misc. Application No. 790 of 1993; Republic vs. Land Disputes Tribunal Court Central Division and Another Ex Parte Nzioka [2006] 1 EA 321;and  Republic vs. The P/S Ministry of Planning and National Development Ex Parte Kaimenyi [2006] 1 EA 353.

49. Waki, J (as he then was), in Republic vs. County Council of Kwale & another Ex Parte Kondo & 57 Others Mombasa HCMCA No. 384 of 1996further held that:

“The purpose of application for leave to apply for judicial review is firstly to eliminate at an early stage any applications for judicial review which are either frivolous, vexatious or hopeless and secondly to ensure that the applicant is only allowed to proceed to substantive hearing if the Court is satisfied that there is a case fit for further consideration. The requirement that leave must be obtained before making an application for judicial review is designed to prevent the time of the court being wasted by busy bodies with misguided or trivial complaints or administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived… Leave may only be granted therefore if on the material available the court is of the view, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the applicant the test being whether there is a case fit for further investigation at a full inter partes hearing of the substantive application for judicial review. It is an exercise of the court’s discretion but as always it has to be exercised judicially”.

50. A similar holding can be found in Meixner & Another vs. Attorney General [2005] 2 KLR 189.

51. The yardstick for the grant of leave was nonetheless set by the Court of Appeal in Mirugi Kariuki Vs. Attorney General Civil Appeal No. 70 of 1991 [1990-1994] EA 156; [1992] KLR 8 as follows:

“The law relating to judicial review has now reached the stage where it can be said with confidence that, if the subject matter in respect of which prerogative power is exercised is justiciable, that is to say if it is a matter on which the Court can adjudicate, the exercise of the power is subject to review in accordance with the principles developed in respect of the review of the exercise of statutory power…the controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject matter… It is not the absoluteness of the discretion nor the authority of exercising it that matter but whether in its exercise, some of the person’s legal rights or interests have been affected. This makes the exercise of such discretion justiciable and therefore subject to judicial review. In the instant appeal, it is of no consequence that the Attorney General has absolute discretion under section 11(1) of the Act if in its exercise the appellant’s legal rights or interests were affected. The applicant’s complaint in the High Court was that this was so and for that reason he sought leave of the court to have it investigated. It is wrong in law for the Court to attempt an assessment of the sufficiency of an applicant’s interests without regard to the matter of his complaint. If he fails to show, when he applies for leave, a prima facie case, on reasonable grounds for believing that there has been a failure of public duty, the Court would be in error if it granted leave. The curb represented by the need for the applicant to show, when he seeks leave to apply, that he has a case, is an essential protection against abuse of the legal process. It enables the Court to prevent abuse by busybodies, cranks and other mischief-makers… In this appeal, the issue is whether the appellant in his application for leave to apply for orders of certiorari and mandamus demonstrated to the High Court a prima facie case for the grant of those orders. Clearly, once breach of the rules of natural justice was alleged, the exercise of discretion by the Attorney General under section 11(1) of the Act was brought into question. Without a rebuttal to these allegations, the appellant certainly disclosed a prima facie case. For that, he should have been granted leave to apply for the orders sought.”

52. In R vs. Communications Commission of Kenya & 2 Others Ex Parte East Africa Televisions Network Ltd. Civil Appeal No. 175 of 2000 [2001] KLR 82; [2001] 1 EA 199, the Court of Appeal observed that leave should be granted if, on the material available, the Court considers, without going into the matter in depth, that there is an arguable case for granting leave.

53. In Re Bivac International SA (Bureau Veritas) [2005] 2 EA 43 (HCK), the Court stated:

“Application for leave to apply for orders of judicial review are normally ex parte and such an application does restrict the Court to threshold issues namely whether the applicant has an arguable case, and whether if leave is granted, the same should operate as a stay. Whereas judicial review remedies are at the end of the day discretionary, that discretion is a judicial discretion and, for this reason a court has to explain how the discretion, if any, was exercised so that all the parties are aware of the factors which led to the exercise of the Court’s discretion. There should be an arguable case which without delving into the details could succeed and an arguable case is not ascertained by the court by tossing a coin or waving a magic wand or raising a green flag, the ascertainment of an arguable case is an intellectual exercise in this fast growing area of the law and one has to consider without making any findings, the scope of the judicial review remedy sought, the grounds and the possible principles of administrative law involved and not forget the ever expanding frontiers of judicial review and perhaps give an applicant his day in court instead of denying him…. Like the Biblical mustard seed which a man took and sowed in his field and which the smallest of all seeds but when it grew up it became the biggest shrub of all and became a tree so that the birds of the air came and sheltered in its branches, judicial review stemmed from the doctrine of ultra vires and the rules of natural justice and has grown to become a legal tree with branches in illegality, irrationality, impropriety of procedure (the three “I’s”) and has become the most powerful enforcer of constitutionalism, one of the greatest promoters of the rule of law and perhaps one of the most powerful tools against abuse of power and arbitrariness. One can safely state that the growth of judicial review can only be compared to the never-ending categories of negligence after the celebrated case of Donoghue vs. Stephensonin the last century. Although leave should not be granted as a matter of routine, where one is in doubt one has to consider the wise words of Megarry, J in the case of John vs. Rees [1970] Ch 345 at 402. In the exercise of the discretion on whether or not to grant stay, the court takes into account the needs of good administration.”

54. What clearly emerges from the surplus of case law cited hereinabove is that the grant of leave to commence judicial review proceeding is neither a mere formality nor a practice of magic. It is not to be granted as a matter of course. Delay is one of the factors which a Court often considers in deciding whether or not to grant leave.

55. In addition, the applicant for leave is under an obligation to show to the court that they have a prima facie arguable case for grant of leave. Therefore whereas an applicant is not required at the leave stage to go into the depth of the application, they have to show that they have not come to court after an inordinate delay and that the application is not frivolous, malicious and futile.

56. The exparte applicant claims that after the tender documents were opened, it never heard from the Procuring Entity within 21 days and that despite writing to the procuring entity through its advocates herein on record, there was no response, which is contrary to the express provisions of  section 126(3) of the Public Procurement and Asset Disposal Act, 2015. It is claimed that the applicant wrote to the procuring entity seeking information on the pending procurement process but no response was received. The procuring entity has denied receiving the said letter seeking clarification.

57. The exparte applicant claims that when it finally received the notification letter from the Postal Corporation, the reasons for rejection of its bid at the preliminary stage were not indicated that is, as to what, exactly was incomplete and or how non-responsive it was, and that such notification must be simultaneous with the notification send to the successful bidder.

58. It is contended by the applicant that the separate modes of notification gave the successful bidder an opportunity to get its notification earlier while the applicant got its notification later, by which time a contract was about to be executed hence the delayed notification to the applicant was deliberately designed to deny it an opportunity to seek remedies stipulated in section 167  of the Act, which breach undermines the guiding principles set out in section 3 of the Act, Articles 10 and 227(1)  of the Constitution on good governance, integrity, transparency and accountability. It is also claimed that the process was tainted with opaqueness, lack of transparency and breach of the law and the Constitution.

59. Upon filing of the Request for Review on 28th August 2017 it became apparent that a contract had already been entered into on 17th August 2017 and was in the process of being implemented and it was for that reason that the Review Board declined the jurisdiction in the matter on account that a contract had already been executed between the procuring entity and the successful bidder, and that the Request for Review was filed out of time.

60. The applicant claims that despite the contract being entered into, that contract is illegal because it involves over sh 5 billion and was executed without the authorization of the Attorney General, contrary to section 134(4) of the Act  and which  act on the part of the procuring entity is an offence under section 176(1) of the Act.

61. It is also contended that the Review Board’s computation of time is contrary to section 3(5) of the Interpretation and General Provisions Act, Cap 2 Laws of Kenya. The applicant maintains that the request for review was filed within the stipulate time, considering when it was notified of the award.

62. It is not denied that at the time of hearing of the request for the Review, the procuring entity had already executed a contract with the successful bidder herein, which contract the exparte applicant claims is illegal ab initio. It is also contended that the Review Board should not have declined jurisdiction to entertain the Request for Review over an illegal procurement process and that the Request for review was filed in time yet the Review Board found that it was filed out of time

63. Therefore, the question is, would this court be in a position to interfere with the contract having regard to the circumstances of this case.

64. In my humble view, those are issues which this court would be faced with and which demonstrate that these proceedings are not perse frivolous or vexatious. However, this court would not at this stage delve into the depths of the said issues as that would prejudice the parties’ positions in the main motion.

65. Taking the foregoing into consideration, it is my view and I so find that the Applicant has established a prima facie case which warrants the grant of leave. Accordingly leave is hereby granted to the Applicant to apply for the judicial review orders in terms of the instant application. The said Application is to be filed and served within 5 days from the date hereof.

66. With respect to the prayer that the leave, if granted should operate as stay of implementation of the contract already entered into between the exparte applicant and the 2nd interested party, it is now trite that the decision whether or not to grant a stay pursuant to leave is no doubt an exercise of judicial discretion and that discretion like any other judicial discretion must be exercised judiciously. Where the decision sought to be quashed has been implemented leave ought not to operate as a stay. See George Philip M Wekulo vs. The Law Society of Kenya & Another Kakamega HC MISC APP No. 29 of 2005.

29.  Maraga, J (as he then was) in Taib A. Taib vs. The Minister for Local Government & Others Mombasa HCMISCA. No. 158 of 2006 expressed himself as follows:

“As injunctions are not available against the Government and public officers, stay is a very important aspect of the judicial review jurisdiction… In judicial review applications the Court should always ensure that the ex parte applicant’s application is not rendered nugatory by the acts of the Respondent during the pendency of the application and therefore where the order is efficacious the Court should not hesitate to grant it though it must never be forgotten that the stay orders are discretionary and their scope and purpose is limited… The purpose of a stay order in judicial review proceedings is to prevent the decision maker from continuing with the decision making process if the decision has not been made or to suspend the validity and implementation of the decision that has been made and it is not limited to judicial or quasi-judicial proceedings as it encompasses the administrative decision making process being undertaken by a public body such as a local authority or minister and the implementation of the decision of such a body if it has been taken. It is however not appropriate to compel a public body to act… A stay order framed in such a way as to compel the Respondents to reinstate the applicant before hearing the Respondent cannot be granted.”

67. In the instant case, a contract has already been entered into between the procuring entity and the successful bidder and is in the process of being implemented but  there was no evidence to the effect that any works had so far begun.  Only mobilization is alleged to have taken place.

68. It is the same contract that is said to be illegal under section 134 of the Act. It therefore follows that unless stay is granted, then the outcome of the application if successful may well be rendered nugatory and an academic exercise.

69. If the court finds that the contract which was illegal has been fully performed, then it may pose serious legal challenges to undo the project after so much funds have been expended in the construction works wherein it is admitted that the beneficiaries are both the procuring entity and the successful bidder herein through a joint development venture.

70. To avoid such an eventuality, it is my view that the lesser evil is to direct which I hereby do that the grant of leave herein shall operate as a stay of the implementation of the contract between the procuring entity and the successful bidder until the substantive notice motion if filed is heard and determined or until further orders of this court.

71. Accordingly, the main motion shall be fast tracked to the extent that the applicant shall file the motion together with its skeletal submissions within 5 days from to date and the respondents and interested parties shall file and serve their responses to the motion within five days of the date of service of the substantive motion together with their submissions.

72. The matter shall be mentioned on 6/11/2017 for directions on whether to highlight or give a date for judgment based on the submissions, noting that so much of the issues have been raised and canvassed by the parties’ respective advocates in this application for leave.

73. Costs shall be in the cause.

Dated, signed and delivered at Nairobi this 23rd day of October, 2017.

R.E. ABURILI

JUDGE