Republic v Public Procurement Administrative Review Board ,National Government CDF Emgwen Constituency & Femji Enterprises Limited Ex-parte Jebess Contractors [2017] KEHC 2766 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW NO.  658 OF 2016

IN THE MATTER OF AN APPLICATION BY JEBESS FOR LEAVE TO APPLY FOR JUDICIAL REVIEW ORDERS OF CERTIORARI & PROHIBITION

AND

IN THE MATTER OF AN APPLICATION UNDER ARTICLES 1, 47,227 AND 232   OF THE CONSTITUTION OF KENYA 2010

AND

IN THE MATER OF THE PUBLIC PROCUREMENT & ASSET DISPOSAL ACT, 2015

BETWEEN

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

VERSUS

PUBLIC PROCUREMENT ADMINISTRATIVE REVIEW BOARD ….....….....RESPONDENT

AND

NATIONAL GOVERNMENT CDFEMGWEN CONSTITUENCY….1ST INTERESTED PARTY

FEMJI ENTERPRISES LIMITED …...........................................….2ND INTERESTED PARTY

JEBESS CONTRACTORS…….…….............................................….EX-PARTE APPLICANT

JUDGMENT

1. On 10th January 2017 this court  granted to the exparte  applicant  leave to institute Judicial Review  proceedings to bring  into  this court and  quash the decision  of the Public Procurement Administrative Review Board made  on 16th December  2016  but dated   16th November 2016  in request for review case No. 105/2016  allowing  the  request  for  review  by Femji  Enterprises Ltd  the  2nd interested party in respect of Tender No. EMG. NGCDF/001/2016-2017 for proposed construction of 8 No.  Classrooms and Administration Block at Kipkeibon Secondary School.

2. In the said  decision, the Review Board also  annulled  the award of the  subject  tender to the  exparte  applicant   herein by  the  Procuring  Entity.

3. In its  place  the Review Board  exercised  its powers  under Section  173  of the Public Procurement  and Asset Disposal Act and  substituted  its decision with the decision of the  Procuring Entity and  awarded  the subject  tender to  the  2nd interested party herein on account that it was the lowest evaluated  tenderer and directed the Procuring Entity to issue  a letter of  notification  of the  award  to the applicant -2nd  interested  party Femji  Enterprises  Limited.

4. The  Review Board  also awarded costs of  shs  213,330 to the  2nd  interested party  against  the  procuring  entity.

5. The exparte applicant also sought that  upon this  court quashing the decision of the  Review Board, an order of mandamus do issue compelling the 1st interested party Procuring Entity  (NGCDF EMGWEN Constituency) to implement the  recommendations of the evaluation committee   of the Procuring  Entity awarding  the  exparte  applicant  the  tender  described  above or  in the alternative   to order  that the  tender process  do commence afresh in compliance with the provisions of the Public Procurement  and Asset Disposal Act.

6. Further, the applicant sought orders of prohibition directed at the Procuring Entity, EMGWEN NG-CDF prohibiting it from executing a contract or any  transaction in respect of the subject tender with the 2nd interested  party  or  any other  entity.

7. Finally, the exparte applicant sought for certiorari to quash the decision of the Review Board of   16th November, 2016.

8. In granting   leave to apply,  the court  at paragraphs  28  and  49  of the ruling  on  leave  noted  that the parties  advocates  agreed  that albeit the decision of the Review Board  was made on  16th December 2016,the decision   itself   was dated  16th  November  2016, quite  erroneously.   The exparte  applicant’s  counsel, Mr  Appolo Mboya maintained that the wrong dating of the  decision is fatal to the entire decision  because it  was  deliberate and meant to deny the exparte applicant an opportunity  to file  an application to challenge the decision  as the decision  directed  that the contract  be signed  between the  Procuring  Entity  and the 2nd interested party in 7 days of the date on which the decision  was  dated.

9. It is  important  to note  that the  issue of dating   of the decision of the Review Board  is an issue that  goes to the  root  of the decision  as impugned, such that albeit  all parties  submitted  and the court  was  persuaded  that the decision  was   made on  16th December  2016, the correct  and appropriate  body that had  the power to date the  decision  correctly  is the Review Board. For avoidance of doubt, this court did not correct the date of the decision. It only acknowledged the date.

10. Throughout these proceedings, the  parties relied on the decision  which is dated 16th November 2016  and therefore  the  question, which I consider  appropriate for  determination is whether  the  erroneous dating of the impugned decision is fatal to the  proceedings before  the Review Board.

11. A similar issue arose in Civil Appeal No. 76/2002 KisumuO’Kubasu, W.S.  Deverell and P.K. Tunoi, JJA betweenRefrigeration Contracts Ltd vs James O. Lieta [2005]eKLR.In that case,  Wambilyanga  J of the High Court failed to state  the correct  date as the  date  of delivery  of the judgment and also did not sign  the judgment  on the day  it  was  delivered  .

12. The issue before the Court of Appeal was that albeit the  judgment  was  dated and  delivered on  27th May  1999, it  was  dated  26th May  1999 and therefore whether such judgment was judgment at all.

13. In an application for review of the judgment, the learned judge had stated:

“….. I conclude and  declare  that my judgment   in this case   was indeed delivered on 27th May 1999 but was inadvertently  dated  26th  May  1999  and therefore  it means that the Notice of Appeal correctly stated the actual  date when  the  judgment   was  delivered.”

14. The above was the clarification of the factual position as the date of delivery of judgment thus confirming that the judgment was wrongly   dated.  However, the  learned judge  neither made any  finding on whether  the  wrongly  dated judgment  was  a nullity  as a result  of what happened with regard to the dating  nor did he  make any reference  to the lack of signature  on the date of delivery.  The Court of Appeal made the following observation:

“ We  consider that the  insertion  at the end of a judgment  of the wrong date as the date of delivery  of  judgment  is an error  arising from an “accidental slip” within the meaning of Section 99 of the Civil Procedure Act and therefore the learned  judge  could have expressly  ordered the  judgment  to stand corrected by the substitution of the correct date for the  incorrect date.  He did not make any specific order. If he   had done so, it would have not been possible for either party to succeed in claiming that the judgment was a nullity because of the dating error, but it would not have solved the lack of signature on the day of delivery.”

In these circumstances, we find that the judgment was  a nullity, or in other words, ineffectual, as a result of both the acknowledged, but  uncorrected  wrong  dating  and the  non signing of the judgment at the  time it  was  delivered in breach of  Order  XX Rule  7 (1)…..”

15. The Court of Appeal in the above  case was clear  that  only the judge  who had  delivered  the judgment  could  have  corrected  the date and or signed the judgment and  with specific  reference  to correction of a court’s  own judgment  in  terms of  dating, the Court of Appeal  stated.

“The learned judge could have expressly ordered the judgment to stand corrected by the substitution of the correct date for the incorrect date.  He did not make any such specific order.”

16. In the instant case, it is admitted that  the decision of the Review Board  was  wrongly  dated but there  was  no attempt  by the parties or the Review Board  itself  to recall its  decision and  correcting it by substituting  the incorrect  date with a  correct date  of delivery of the decision.

17. The Court of Appeal made it clear that a judgment  which is wrongly dated unless corrected  is a nullity  and that applying  the case of Chief Kofi  v Barima Kwabena Sefah [1958]  ALL ER  289, it  stated that  a judgment, which is  a nullity  as a result of the judge  lacking  jurisdiction, while being ineffectual, can  nevertheless  be subject to review  under rules similar  to our Order  44.   The  privy  council  in that   case also  approved the procedure  of the judgment   being pronounced  afresh by the same  judge who  lacked jurisdiction  at the time   he  first delivered it, provided  that he had  jurisdiction  at the time he delivered  it a fresh.

18. In Palace  Dry Cleaners Ltd vs Ahmed Abdi CA 265/96 the same Court of Appeal stated:

“This Appeal is against the Superior Court (Ringera J) which ruling is not dated.  Such dating   is required  by the  provisions  in Order  20  Rule  3(1)  as read  with  Order  20 Rule   7(6) .  This is a mandatory requirement.  In the absence of such dating this appeal is   incompetent and is ordered struck out with no order as to costs.”

19. In china Jiangsu International Economic Co-operation  V Edward Kings Onyancha Maina CA 193 and 194/95 unreported cited in the Refrigeration Contractors [supra] case, the Court stated;

“ These appeals  are incompetent as the records do not contain  copies of the ruling  appealed  against  as  required  by Rule   85   (1) (a)  of the Rules  of this court.  The document  in the records of Appeal purporting to be copies of the ruling does not  comply  with the mandatory  provisions  of  Order  20 (3)  (1) of  the Civil Procedure  Rules.  That document is therefore a nullity and neither party can take advantage of it.  For these reasons both these appeals are struck out but with no orders   as to costs.”

20. In Mohamed  Omar  Shunguli v  Arnile  Ngiama Rama  CA  16/1992unreported  it  was stated:

“ Mr K’owade, at the opening  of the hearing  of the appeal, contended  in limine  that  the judgment  dated  8th June, 1990 but  delivered  on 14th June, 1990  and  signed  on both  those dates.  This is a breach of the mandatory provisions of Order XX (3) (1) of the Civil Procedure Rules as it does not comply with the same and is invalid.

Accordingly, the appeal before us is rendered incompetent and is hereby struck out with no order as to costs.”

21. The Court of Appeal  in The Refrigerator Contractors Ltd  v James O. Luta (supra) further relied on the Chief Kofi  decision (supra) where it  was  further held;|

“……Those cases  appear to me to  establish  that an order  which can  properly  be described  as a nullity is  something  which the  person affected  by it is entitled  ex debitio justiciae  to have  set aside.  So far  as the  procedure  for  having it set  aside is concerned, it seems to me  that the  court in its inherent  jurisdiction  can  set aside  its own  order and  that an appeal  from the order is not  necessary.”

22. The Court of Appeal then concluded that:

“ We  find the judgment  to be a  nullity and, following  the  Chief Kofi  decision, we  are of  the  opinion that it can and should  have validity  bestowed  upon it by being  pronounced  afresh  in accordance with the rules.

We therefore  hereby  allow the  appeal  with costs  and set aside the  superior court’s  ruling  delivered on  29th  November  2001  and  substitute  therefore  an order  that judgment, which  was   signed on 19th July 2000  by Wambiliangah J in High Court  CC No. 11  of 1997, be pronounced  afresh, in accordance  with Order  XX  of the Civil Procedure Rules.

For avoidable of doubt, we further declare that the previous delivery of the judgment on 27th May 1999 was not a valid pronouncement of the judgment.”

23. The above  decision is on all fours  with this  case where the  decision  though delivered on  16th December  2016  is dated  16th November  2016  and  the Review  Board  never took any steps  to recall  that  decision for  purposes  of pronouncing  it afresh. Neither did the beneficiaries of that order seek out the Review Board to pronounce the decision afresh and date it as appropriate.

24. I have no reason to depart from the above decision which is binding on this court and which is backed by law. And even if the respondents were to argue that the error is one of procedural technicality which I find was not as the error determined the validity of the decision impugned herein, in CIVIL APPEAL (APPLICATION) NO. 228 OF 2013, OUKO, KIAGE & J. MOHAMMED, JJ.A) BETWEEN NICHOLAS KIPTOO ARAP KORIR SALAT &INDEPENDENT ELECTORAL AND 8 OTHERS,the Court of Appeal made it clear that:

“I am not in the least persuaded that Article 159 of the Constitution and the oxygen principles which both command courts to seek to do substantial justice in an efficient, proportionate and cost-effective manner and to eschew defeatist technicalities were ever meant to aid in the overthrow or destruction of rules of procedure and to create an anarchical free-for-all in the administration of justice. This Court, indeed all courts, must never provide succor and cover to parties who exhibit scant respect for rules and timelines. Those rules and timelines serve to make the process of judicial adjudication and determination fair, just, certain and even-handed. Courts cannot aid in the bending or circumventing of rules and a shifting of goal posts for, while it may seem to aid one side, it unfairly harms the innocent party who strives to abide by the rules. I apprehend that it is in the even-handed and dispassionate application of rules that courts give assurance that there is clear method in the manner in which things are done so that outcomes can be anticipated with a measure of confidence, certainty and clarity where issues of rules and their application are concerned.

25. In this case, in the absence of any other provision of law to the contrary, the law regarding pronouncement and dating of judgments must apply, for they were not enacted in vain and as long as they still exist in our statute books they are not mere rules.  Under Order  21 Rule  3(1)  of the Civil Procedure  Rules, a judgment  pronounced by the judge  who wrote it  shall be  dated  and  signed by him in open court  at the time of pronouncing  it and  once  signed, a  judgment  shall not  afterwards  be altered  or added  save as provided  by Section  99 of the Act  or  on review.

26. In the same vein, Order 21 Rule 8 (1) is clear that   a decree shall bear the date   on which the judgment   was delivered.it follows that where a decree or order is dated differently from the date of delivery of judgment or ruling, unless rectified by the same court issuing such decree or order, no other court can correct it.

27. Section 99 of the Civil Procedure  Act allows the  court to correct  clerical  or arithmetical  mistakes  in judgments, decrees  or orders  or errors  arising  therein  from any  accidental slip or omission, such  correction  may be  made at  any time  by the court  of its own motion or on  application of any of the  parties.

28. In this case, the Review Board delivered its decision on 16th December 2016 and signed it but dated it 16th November 2016.

29. In my view, from the decisions cited above, it is not the effect of such errors that matter.  It is the validity of such a decision that is being questioned.

30. In the absence of any correction and  or application before the Review Board to correct  the  decision dated  16th November  2016  yet pronounced on 16th December  2016, which  decision is a permanent  record, the decision  thereof  is exdebitio  justiciae  a nullity.

31. Therefore, as  the Review Board decision  was not rendered in accordance  with the law, it should  not surprise the parties that  the entire  decision is a nullity  and  therefore what Lord  Denning  stated in the case of  Mcfoy v United  Africa Company Ltd[1961] ALL ER  1169  at  1172, is  pertinent  that  anything  that is said  to be a nullity  is void  ab initio and is  as though  it  never existed.  And that  nothing   can be  done  subsequently based on  what is a nullity  because  one cannot  put something  on nothing and  expect  it to stay there.  It will collapse.

32. That being  the case, I find and hold that the decision  of the  Review Board  was nothing  and never existed  in the sense of the  law  and therefore  this court  need not consider the merits of the Judicial Review  complaint on whether or not  the  Review Board  committed any  errors  of law in  nullifying the award  of the tender made in favour  of the exparte  applicant by the Procuring Entity.

33. Accordingly, I find and hold that the  whole decision  of the Review  Board  pronounced  on 16th December  2016  and dated  16th November 2016 be and  is hereby brought  into this court  for purposes of quashing and I hereby declare the said decision  of the Review Board made on 16th December, 2016 but dated 16th November, 2016 a nullity and quash the same.

34. As the court has not delved into the  questions of whether or not the invalid decision  ought to have been made the way it was made, I decline  to make  any other  order  respecting  the  annulled  decision and order that each of  the  parties  bear their  own costs  of these proceedings.

Dated, signed and delivered in open court at Nairobi this 11th day of October, 2017.

R.E. ABURILI

JUDGE

In the presence of:

Mr Apollo Mboya Advocate for the Exparte Applicant

Mr Wasonga Advocate h/b for Mr Alex Masika for the 2nd Interested Party

N/A for the Respondent

N/A for the 1st Interested Party

Court Assistant: Mike