Republic v Public Procurement Administrative Review Board; Space Contractors & Suppliers Investment Limited (Exparte Applicant); Accounting Officer, Kenya Ports Authority & 22 others (Interested Parties) [2023] KEHC 25282 (KLR)

Republic v Public Procurement Administrative Review Board; Space Contractors & Suppliers Investment Limited (Exparte Applicant); Accounting Officer, Kenya Ports Authority & 22 others (Interested Parties) (Judicial Review E025 of 2023) [2023] KEHC 25282 (KLR) (16 October 2023) (Judgment)

Neutral citation: [2023] KEHC 25282 (KLR)

Republic of Kenya

In the High Court at Mombasa

Judicial Review E025 of 2023

OA Sewe, J

October 16, 2023

IN THE MATTER OF: AN APPLICATION FOR THE JUDICIAL REVIEW ORDER OF CERTIORARI AND IN THE MATTER OF: THE DECISION MADE BY THE PUBLIC PROCUREMENT ADMINISTRATIVE REVIEW BOARD ON 21ST AUGUST, 2023 THAT THE REQUEST FOR REVIEW FILED ON 31ST JULY 2023 WITH RESPECT TO TENDER NO. KPA/075/2022-23/ADM FOR THE PROVISION OF HOUSEKEEPING AND CLEANING SERVICES (GENERAL) BE DISMISSED AND IN THE MATTER OF: THE SAID DECISION BY THE RESPONDENT FAILING TO ADHERE TO THE PRINCIPLES OF TRANSPARENCY, ACCOUNTABILITY AND CREDIBILITY UNDER ARTICLES 10, 47, 201 AND 227 OF THE CONSTITUTION OF KENYA, 2010 AND THE PUBLIC PROCUREMENT AND ASSET DISPOSAL ACT AND IN THE MATTER OF: THE SAID DECISION BY THE RESPONDENT BEING UNREASONABLE AND IRRATIONAL AS THE RESPONDENT HELD THAT IT HAD NO JURISDICTION TO DETERMINE THE SAID REQUEST FOR REVIEW AND ALSO THAT THE APPLICANT DID NOT HAVE LOCUS STANDI TO FILE THE SAID REQUEST FOR REVIEW AND IN THE MATTER OF: THE APPLICANT’S EXERCISE OF A STATUTORY RIGHT GRANTED BY SECTION 175 OF THE PUBLIC PROCUREMENT AND ASSET DISPOSAL ACT TO LODGE A JUDICIAL REVIEW MOMBASA HC JR CASE NO E025 OF 2023 JUDGMENT 1 | P a g e APPLICATION FOLLOWING THE DECISION BY THE RESPONDENT DATED 21ST AUGUST 2023

Between

Republic

Applicant

and

Public Procurement Administrative Review Board

Respondent

and

Space Contractors & Suppliers Investment Limited

Exparte Applicant

and

Accounting Officer, Kenya Ports Authority

Interested Party

Kenya Ports Authority

Interested Party

Daorab Enterprises

Interested Party

Gedlinks General Supplies & Construction Limited

Interested Party

Kahuna Kapital Investment Limited

Interested Party

Fransa Agencies

Interested Party

Sender Services

Interested Party

Somakim Construction And Service Trading Limited

Interested Party

Suldanka Harti Limited

Interested Party

Bizmart Enterprises

Interested Party

Maeji Kaiho

Interested Party

Norgen Enterprises Limited

Interested Party

Mara Supplies

Interested Party

Simca Agencies Limited

Interested Party

Forbes Technics Limited

Interested Party

Nakaj Services

Interested Party

Acentri Limited

Interested Party

Riley Falcon Security

Interested Party

Rokeen Enterprises

Interested Party

Resoink SCC Ltd

Interested Party

Remarc Cleaning Services

Interested Party

The Xenry Cleaning Services Ltd

Interested Party

Cleanco Investment Enterprises

Interested Party

Judgment

[1]The Notice of Motion dated 2nd October 2023 was filed by the ex parte applicant, Space Contractors & Suppliers Limited, (hereinafter “the applicant”) upon being granted leave to file a substantive judicial review application vide the ruling dated 2nd October 2023. It was filed pursuant to Sections 1A, 1B and 3A of the Civil Procedure Act, Chapter 21 of the Laws of Kenya, Sections 3 and 175 of the Public Procurement & Asset Disposal Act, No. 33 of 2015 (PPADA) and Order 53 Rules 1, 2 and 3 of the Civil Procedure Rules, 2010, for the following judicial review orders:(a)That an order of Certiorari be issued to quash the decision made on the 21st August 2023 by the respondent in PPARB Application No. 52 of 2023: Space Contractors & Suppliers Investment Limited v Accounting Officer Kenya Ports Authority and 22 Others and consequently that the award made on 10th July 2023 by the 1st and 2nd Interested parties with regard to Tender No. KPA/075/2022-23/ADM for the provision of Housekeeping/Cleaning Services (General) at the Port of Mombasa, be also quashed.(b)That the costs of the application be provided for.

[2]The application was premised on several grounds as set out on the face of the Motion. In particular, the applicant contended that:(a)Sometimes in January 2023, the 2nd interested party invited bids for Tender No. KPA/075/2022-23/ADM for the Provision of Housekeeping/Cleaning Services (General) at the Port of Mombasa; and that the applicant was one of the bidders who responded to the invitation;(b)Vide a Notification of Award dated 10th July 2023, which was communicated to the applicant via email on 18th July 2023, the 1st and 2nd interested parties notified the applicant that its bid was not successful and that the 3rd to 23rd interested parties were the successful bidders of the said tender;(c)The applicant was not satisfied with the said awards and hence filed a Request for Review before the respondent, being PPARB Application No. 52 of 2023: Space Contractors & Suppliers Investment Limited v Accounting Officer, Kenya Ports Authority and 22 Others;(d)That on 21st August 2023 the respondent delivered its decision in respect of the review application whereby it dismissed the applicant’s Request for Review;(e)That the applicant is aggrieved by the said decision as it is fundamentally flawed in so far as the respondent found that it had no jurisdiction to entertain the said Request for Review and further found that the applicant had no locus standi to file the said Request for Review;(f)Under Section 175 of the PPADA the applicant has a statutory right to file judicial review proceedings and once that is done the tendering process ought to be automatically stayed to await the outcome of the judicial review process;(g)The application is well merited in law as, by holding that it had no jurisdiction to hear the Request for Review, the respondent thereby abdicated its duties;(h)The respondent denied the applicant its fundamental right to be heard as provided for in Article 50 of the Constitution by failing to hear the Request for Review on its merits;(i)The applicant was further denied its right to natural justice by being condemned unheard;(j)The respondent failed to uphold the principle expressed in the phrase ex turpi causa non oritur actio by allowing the interested parties to benefit from the acts of illegality committed by the 1st and 2nd interested parties in collusion with some of the other interested parties;(k)The respondent handled the applicant’s complaints in a casual and technical manner in disregard of Article 159 of the Constitution, thereby occasioning injustice; and,(l)The respondent failed to take into account Articles 10, 47, 201 and 227 of the Constitution and thereby allowed itself to be used as a vehicle to sanitize corruption in a public procurement matter.

[3]The application was also premised on the Statement of Facts filed with the Chamber Summons dated 25th August 2023 and the Verifying Affidavit sworn by Mercy Vosenah Musera on 25th August 2023. Thus, in her affidavit, Ms. Musera confirmed the grounds set out in paragraph 2 herein above in connection with Tender No. KPA/075/2022-23/ADM for the Provision of Housekeeping/Cleaning Services (General) at the Port of Mombasa. She averred that it is inconceivable and untenable for the 1st and 2nd interested parties to have set the mandatory conditions that all successful bidders were expected to comply with and yet proceed in the same breath to award parts of the tender to some bidders who had clearly not met some of the said conditions. According to her, it is this kind of corruption in public tendering that the Request for Review was attempting to cure and; and therefore, it was unbelievable that the respondent, which is the body created to supervise and maintain sanity in public procurement matters, went out of its way to give a strong blow in favour of corruption and illegality.

[4]Thus, Ms. Musera concluded her affidavit by asserting that the application is well merited primarily because the respondent failed to understand and apply Section 167 of the PPADA and thereby denied the applicant the opportunity to have its Request for Review heard on its merits. She further averred that the respondent’s decision amounted to a reward in favour of illegality and impunity; and therefore ought not to be countenanced by the Court. Annexed to the Verifying Affidavit were a copy of the Notification of Award (Annexure “MVM-2”), a copy of the Request for Review (Annexure “MVM-3”) and the Decision of the Tribunal (Annexure “MVM-5”), among other pertinent documents.

[5]In response to the application, the respondent relied on the affidavit of Mr. James Kilaka to confirm that, upon the filing of the Request for Review, the respondent sent a Notification of Appeal to the 1st and 2nd interested parties as well as all the tenderers involved in the impugned tender, inviting them to file their response to the Request for Review. Mr. Kilaka also confirmed that the 1st and 2nd interested parties as well as some of the other tenderers did file their responses which included Notices of Preliminary Objection. The respondent consequently fixed the Request for Review for hearing and notified all concerned parties. The matter was thereafter heard on 16th August 2023 and a decision rendered on 21st August 2023. It was therefore the assertion of the respondent that all parties were given an opportunity to be heard before a decision was made; and therefore that the allegation that the ex parte applicant’s constitutional right to be heard was infringed has no basis.

[6]On behalf of the 1st and 2nd interested parties, the firm of M/s Robson Harris Advocates LLP filed a Notice of Preliminary Objection dated 3rd October 2023 contending that:(a)The applicant’s Notice of Motion is time-barred having been filed outside the statutory times specified by Section 175(1) of the PPADA.(b)The ex parte applicant has neither pleaded nor shown itself as a “person aggrieved” within the meaning of Section 175(1) of the PPADA, hence the ex parte applicant lacks locus standi to institute and continue the instant Judicial Review application.(c)The purported suit herein is hopelessly incompetent and bad in law as the respondent lacks legal capacity to be sued in its own name having regard to the express provisions of Section 27(1) of the PPADA.(d)The Court lacks the requisite jurisdiction to take cognizance of, hear and determine the ex parte applicant’s application as filed herein.(e)The ex parte applicant’s application has been filed and served contrary to the express provisions of Order 53 Rule 3(2) of the Civil Procedure Rules (as amended).

[7]The 1st and 2nd interested parties also relied on the affidavit of Moses Sirgoi, the Principal Procurement Officer of the 2nd interested party. At paragraphs 4 to 6, Mr. Sirgoi explained how the subject tender was floated, responded to, evaluated and awarded on 10th July 2023; whereupon the applicant, among other unsuccessful tenderers were notified and served with letters of regret. He averred that the ex parte applicant then filed a Request for Review on 1st August 2023, in respect of which the 1st and 2nd interested parties filed a Memorandum of Response dated 4th August 2023 together with an Affidavit as well as all the pertinent documents. He further averred that the other parties to the Request for Review also filed their responses; and that the responses included Notices of Preliminary Objection challenging the jurisdiction of the Board.

[8]At paragraphs 11 and 12, Mr. Sirgoi explained that the Request for Review was heard by Board on 16th August 2023 after the parties filed their written submissions on both the jurisdictional question as well as the substantive application. He further deposed that after considering the matter, the Board upheld the preliminary objections and ruled that it had not jurisdiction to entertain the matter and that the applicant lacked the locus standi to present the Request for Review. A copy of the decision was annexed to the affidavit of Mr. Sirgoi and marked Annexure “DA-5”. Accordingly, the 1st and 2nd interested parties prayed that the application dated 2nd October 2023 be dismissed with costs to them, contending that the decision of the Board was justified.

[9]Similarly, the 5th interested party, Kahuna Kapital Investment Limited, prayed for the dismissal of the application. It relied on the Replying Affidavit sworn on its behalf on 3rd October 2023 by its director, Samuel Mwangi Gitongu, who averred that, upon the subject tender being floated by the 1st and 2nd interested parties, the 5th interested party submitted its bid in compliance with the tender requirements. Thereafter, by a letter dated 10th July 2023, the 1st interested party informed the 5th interested party that its bid had been accepted and was thus awarded Zone 4 of the subject tender.

[10]Mr. Gitongu further confirmed that the applicant filed a Request for Review dated 28th July 2023 on 31st July 2023 before the respondent which was successfully challenged by the 5th interested party. He added that the respondent rendered its decision on 21st August 2023 and dismissed the applicant’s Request for Review for want of jurisdiction. At paragraphs 7 to 12, Mr. Gitongu adverted to legal matters in connection with the import of Sections 167 and 173 of the PPADA on the basis of information received from counsel. He accordingly concluded that the respondent was not in breach of any duty imposed on it by the Constitution, the PPADA or the Public Procurement and Asset Disposal Regulations (PPADR).

[11]M/s Omulama E.M. & Company Advocates filed a Notice of Preliminary Objection dated 3rd October 2023 on behalf of the 6th, 8th, 10th, 14th, 16th and 19th interested parties; their contention being:(a)That this Court lacks jurisdiction to hear the Notice of Motion dated 2nd October 2023 because it is time barred by virtue of the express provisions of Section 175(1) of the PPADA.(b)That the timelines stipulated in Section 175(1) of the PPADA should strictly be adhered to as they are cast in stone.(c)That the 14 days’ period envisaged under Section 175(1) of the PPADA for the applicant to seek judicial review lapsed on 4th September 2023, thus rendering the decision of the respondent final and binding on all parties.(d)That the applicant’s suit, namely, Mombasa High Court Judicial Review Application No. E024 of 2023: Mercy Vosenah Muserah v Public Procurement Administrative Review Board and Others, was withdrawn on 4th September 2023 with no order as to costs and therefore this Court is functus officio in respect of the subject matter of this suit.

(e)That the natural consequences of an act of withdrawal of a suit, as contemplated by Order 25 of the Civil Procedure Rules, is that the applicant cannot institute a fresh suit. [12]In addition to the foregoing Notice of Preliminary Objection, Replying Affidavits were filed herein by the 8th, 10th, 14th, 16th and 19th interested parties. The affidavits are largely similar in terms of content, though sworn by and on behalf of different interested parties. For instance, on behalf of the 8th interested party, Somakin Construction and Service Trading Limited, a Replying Affidavit was sworn on 3rd October 2023 by one of the directors of the company, Mr.Abdalla Matoke.He averred that, having the ability and capacity to provide the services set out in the subject tender, the 8th interested party submitted its bid in compliance with the tender requirements; and that by a letter dated 10th July 2023, the 1st interested party informed the 8th interested party that its bid had been accepted, and was thus awarded Zone 14 of the tender. Mr. Matoke further averred that, thereafter, the applicant filed a Request for Review dated 28th July 2023 before the respondent which the 8th interested party challenged successfully; and therefore the Request for Review was dismissed for want of jurisdiction on 21st August 2023.

[13]At Section A of the said affidavit, Mr. Matoke set out the guiding principles of public procurement as set out in Articles 227(1) of the Constitution. He also made reference to Article 47 of the Constitution alongside the applicable provisions of the Fair Administrative Action Act, 2015, to support the averment that an administrative action cannot be flawed if it is legal. The affiant further set out the relevant provisions of the PPADA, namely Sections 167, 173 and 175 as well as their significance at Section B of the affidavit. In this connection, Mr. Matoke disclosed that his averments were based on information and advice given to him by his advocate.

[14]At Section C of his Replying Affidavit, Mr. Matoke responded to the allegations that the respondent’s decision was tainted with illegality, irrationality, and procedural impropriety. He averred, in paragraph 18 thereof, that a reasonable tribunal properly exercising its mind to the law and the facts could have come to the same conclusion as the respondent; and therefore that, in raising the same issues the applicant is, in effect, inviting the Court to engage in a merit review which is an appellate function. He added that the mere fact of citing and invoking constitutional and statutory provisions does not, in itself, establish a legal basis for judicial review. Mr. Matoke concluded his affidavit by stating that the applicant had failed to demonstrate that the respondent acted ultra vires its statutory mandate; or that it had met the threshold for judicial review.

[15]As pointed out hereinabove, the Replying Affidavits sworn by Amon Ongao Nyakundi on behalf of the 10th interested party, David Liyayi Simwa on behalf of the 14th interested party, Joshua Kasembeli Wanyonyi on behalf of the 16th interested party, Rose Ogundo on behalf of the 19th interested party and Isssa Amin Noordin on behalf of the 17th interested party, were along the same lines as Mr. Matoke’s averments. That is significant, taking into account that the interested parties were the successful tenderers in respect of their respective zones; which facts have been set out in their affidavits.

[16]On their part, the 12th, 13th, 18th, 20th and 21st interested parties relied on the Grounds of Opposition dated 3rd October 2023. The same were filed herein by M/s Okubasu & Munene Advocates to the effect that:(a)The impugned Board decision was lawful and in tandem with the holdings of the Superior Courts in:(i)James Oyondi t/a Betoyo Contractors & Another v Elroba Enterprises Limited & 8 Others [2019] eKLR by the Court of Appeal;(ii)Nairobi High Court JRMISC/E134/21: Smartmatic International Holding BV v Public Procurement Administrative Review Board & Others;(iii)Royal Hisham Limited v Kenya Ports Authority [2021] eKLR by Mombasa High Court.(b)The application is in bad faith and has no legal basis to the extent that:(i)The applicant fully participated in the proceedings before the Board and a decision made therefrom and cannot therefore claim to have been condemned unheard; and(ii)Not every person is suited to institute a review before the Board; granted that the law allows a non-suited person who is not competent to request for review to pursue other legal remedies, including filing of a civil case at the High Court, as was held in Royal Hisham Limited v Kenya Ports Authority (supra).(c)The applicant is not worthy of discretionary reliefs in so far as the proceedings have been brought in bad faith to serve the collateral purpose of benefiting existing service providers by frustrating the award of tenders to new service providers through the challenged procurement process.(d)The application is vexatious, incurably defective and bad in law as it fails to meet the minimum threshold warranting issuance of the orders sought.

[17]The application was urged by way of written submissions which were highlighted on 4th October 2023. Accordingly, counsel for the applicant, Mr. Gikandi, relied on his written submissions dated 3rd October 2023. In his view, the respondent interpreted Section 167 of the PPADA wrongly and consequently arrived at an erroneous decision. He submitted that the applicant got to learn that a number of the bidders had not met certain mandatory conditions during the tender opening process that was carried out on the 8th March 2023. He therefore contended that, having openly witnessed the fact that three entities, namely: Mara Supply Enterprises (Nairobi) Limited, Nogen Enterprises Limited and Riley Falcon, had not met the said criteria, it was the reasonable and legitimate expectation of the applicant that they would not be among the successful tenderers.

[18]Mr. Gikandi further submitted that, upon learning that its bid had failed, the applicant filed a Request for Review on 31st July 2023 within the 14-day window provided for in Section 167 of the PPADA, but that the respondent rejected the said application by its decision dated 21st August 2023 on the grounds that the application had been filed out of time and that the applicant had no locus standi to file the Request for Review. Thereupon, the applicant approached this Court for respite pursuant to Article 47 of the Constitution and Section 175 of the PPADA. He argued that, before the receipt of the respondent’s letter dated 10th July 2023 on the 18th July 2023, the applicant could not possibly have known that the 1st and 2nd interested parties had awarded parts of the tender to the three entities that had clearly not qualified for award.

[19]At paragraphs 12 to 16 of his written submissions, Mr. Gikandi assailed the respondent’s decision, particularly its finding that the applicant lacked the requisite locus standi to present the Request for Review. His argument was that it was sufficient that:(a)The applicant had made a bid in respect of the subject tender and had, in the process, spent effort and money in preparing tender documents;(b)The applicant attended the tender opening ceremony and meticulously took notes as shown on pages 90 to 101 of the application;(c)The applicant received the respondent’s letter dated 10th July 2023 by which the respondent categorically stated that the applicant had 14 days to seek redress if was not satisfied the its decision.

[20]Hence, in Mr. Gikandi’s submission, it was an act of professional dishonesty for the 1st and 2nd interested parties to turn round and argue that the applicant did not have the locus standi to move the Board. He relied on Speaker of the National Assembly v Karume [1992] KECA 42 (KLR) (29th May 1992) for the proposition that:…Where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.”

[21]In addition, counsel relied on Selex Sistemi Integrati v The Public Procurement Administrative Review Board & Others [2008] eKLR in which it was held that:…a provision ousting the ordinary jurisdiction of the court must be construed strictly meaning, I think, that, if such a provision is reasonably capable of having two meanings, that meaning shall be taken which preserves the ordinary jurisdiction of the Court.”

[22]Accordingly, Mr. Gikandi submitted that it was wrong and totally unreasonable for the Board to have refused to hear the Request for Review on the grounds of jurisdiction or locus standi. He relied on Articles 10, 48, 50, 201, 227 and 159 of the Constitution to augment the argument that public procurement is supposed to be carried out in an environment that is open, transparent and corruption free; and therefore grievances must similarly be addressed and resolved in a transparent and just manner. In this regard, counsel for the applicant relied on Mombasa Judicial Review No. 72 of 2016: Blue Sea Services Limited & Another v Public Procurement Administrative Review Board and Kenya Ports Authority in which a judicial review application was allowed and the decision of the Board quashed in similar circumstances. He accordingly urged the Court to allow the application dated 2nd October 2023 and make an appropriate order for costs.

[23]Ms. Kagoi, counsel for the respondent, relied on her written submissions dated 5th October 2023. She asserted that due process was followed by the respondent in handling the applicant’s Request for Review and therefore that the decision dated 21st August 2023 was only made after the parties were given an opportunity to be heard. Counsel further defended the decision of the respondent contending that it was reasonable and lawful in every respect. In addition to Section 167 of the PPADA, Ms. Kagoi placed reliance on Republic v District Land Adjudication and Settlement Officer, Maara Sub-County & 3 Others, Ex Parte M’Nyiri Ragwa and Another (Interested Parties) [2021] eKLR to buttress her argument that judicial review is concerned with the decision-making process, and not with the merits of the decision itself. She accordingly prayed for the dismissal of the application with costs to the respondent.

[24]On behalf of the 1st and 2nd respondents, Mr. Mbogo filed written submissions dated 4th October 2023. He proposed the following issues for determination:(a)Whether the Court has jurisdiction to hear and determine the instant judicial review proceedings;(b)Whether the PPARB has capacity to be sued in its own name, given the provisions of Section 27(1) of the PPADA;(c)Whether the application dated 2nd October 2023 is merited and deserving of the orders sought; and(d)Costs.

[25]On jurisdiction, counsel relied on the decision of the Supreme Court in Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & Others [2012] eKLR as well as the case of Owners of Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Limited [1989] KLR 1 and Orange Democratic Movement v Yusuf Ali Mohamed & 5 Others [2018] eKLR, among others, for the proposition that jurisdiction is everything; and that it is conferred by law. He added that the PPARB is neither a body corporate nor does it have any juridical personality so as to be sued in its own name. Hence, on the authority of Maurice Ooko Otieno v Mater Miseriecordiae [2004] eKLR, counsel urged the Court to find that the application is fatally defective.

[26]On the merits of the application, Mr. Mbogo submitted that, while discharging its supervisory role by way of judicial review proceedings, the Court does not conduct a fresh trial, but limits itself to checking the impugned proceedings and decision for illegality, irrationality, procedural impropriety and proportionality. He relied on Saisi & 7 Others v Director of Public Prosecutions & 2 Others [2023] KESC 6 (KLR) (Civ) in which the Supreme held:The intention was never to transform judicial review into full-fledged inquiry into the merits of a matter. Neither was the intention to convert a judicial review court into an appellate court.”

[27]Counsel then made reference to Pastoli v Kabale District Local Government Council & Others [2008] 2 EA 300 and Republic v Public Procurement Administrative Review Board & 2 Others, Ex Parte Pelt Security Services Limited [2018] eKLR on the test of reasonableness. He emphasized that for a decision to be held to be irrational it must be one which no reasonable person could have reached. In this instance, counsel urged the Court to find that, in arriving at its impugned decision, the respondent was guided by the provisions of the law; particularly Sections 28, 29 and 167(1) of the PPADA and Regulation 203(2)(c) of the PPADR and the authorities of Republic v Public Procurement Administrative Review Board & 2 Others, Ex Parte Kemotrate Investment Limited [2018] eKLR and James Oyondi t/a Betoyo Contractors v Elroba Enterprises Limited & 8 Others[2019] eKLR.

[28]Counsel submitted at length on the test of discoverability and contended that the applicant ought to have filed a Request for Review on the date of the occurrence of the alleged breach. He relied on Republic v Public Procurement Administrative Review Board & 2 Others, Ex Parte Kemontrate (supra) and the English case of SITA v Manchester Waste Management Authority [2011] EWCA Civ 156, for the proposition that time only starts to run once the unsuccessful tenderer reaches an informed view that there has been an infringement of the applicable provisions of the procurement law. Accordingly, Mr. Mbogo relied on paragraphs 5, 14, 15, 18, 19, 21 and 22 of the Request for Review to show that the grounds complained of were discovered by the applicant way back in March 2003; and were therefore brought forth by way of Request for Review after the lapse of the 14-day statutory period.

[29]At paragraphs 43 to 57 of his written submissions, Mr. Mbogo delved into the merits of the Request for Review and reiterated the stance of the 1st and 2nd interested parties that the tender evaluation as well as the award were done in accordance with the law and the terms and conditions set in the tender documents. He therefore concluded his submissions by stating that the applicant has not made a case to justify the grant of the order of Certiorari to quash the respondent’s decision dated 21st August 2023 or the award made by the 1st and 2nd interested parties on 10th July 2023. He therefore prayed that the application be dismissed with costs.

[30]Mr. Sang on his part relied on his written submissions dated 4th October 2023 and proposed the following issues for determination:(a)Whether the application is properly filed before the Court;(b)Whether the Request for Review was properly filed before the respondent;(c)Whether therefore the Request for Review ought to have been heard on its merits.

[31]He similarly submitted, on behalf of the 6th, 8th, 10th, 14th, 16th, 17th and 19th interested parties that the Court lacks jurisdiction to hear the Notice of Motion dated 2nd October 2023 as it is time-barred by virtue of the provisions of Section 175(1) of the PPADA; thus confirming the decision of the respondent. He relied on Kenya Power & Lighting Co. Ltd v Public Procurement Administrative Review Board [2022] KEHC 11688 (KLR) (Judicial Review) (19th May 2022) (Ruling) for the holding that:…the provisions of section 175 are couched in terms that are plain and unambiguous, admitting to no interpretive wriggle room…”

[32]Mr. Sang further urged that judicial notice be taken of the fact that the applicant filed a suit, being Mombasa High Court Judicial Review No. E024 of 2023: Mercy Vosenah Muserah v Public Procurement Administrative Review Board & Others, which was thereafter withdrawn before inter partes hearing. In his submission the Court is functus officio on account of that withdrawal. He relied on Priscilla Nyambura Njue v Geovhem Middle East Ltd; Kenya Bureau of Standards (Interested Party) [2021] eKLR to support his argument. On whether the Request for Review was properly filed before the respondent, Mr. Sang submitted that since the respondent’s jurisdiction to hear and determine Requests for Review flows from the PPADA, it was obliged to ensure that it acted within the confines of the Act. He relied on Kenya Pipeline Company Limited v Hyosung Ebara Company Limited & 2 Others [2012] eKLR and Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR in urging the position that the respondent’s decision on jurisdiction was both legal and rational.

[33]On whether the Request for Review ought to have been heard on the merits, Mr. Sang was of the posturing that the applicant failed to demonstrate that it was entitled to the review orders sought by it and added that the applicant had made baseless allegations which the respondent interrogated before arriving at its decision. It was further the contention of Mr. Sang that the respondent took into consideration well-reasoned judicial decisions in support of its decision. He underscored the principle that judicial review is concerned not with the merits or demerits of the impugned decision but the process, as its purpose is to ensure that the individual was given fair treatment by the decision-making body.

[34]On behalf of the 13th, 17th, 18th, and 21st interested parties, Dr. Okubasu reiterated the submissions made herein by both Mr. Mbogo and Mr. Sang that judicial review is concerned only with the legality of an impugned decision and the process employed in arriving at the decision. He therefore took the view that the main ground relied on by the applicant, namely, that persons who did not meet the set criteria were awarded the subject tender, is not a valid ground for judicial review.

[35]He further submitted that although the applicant complained that the principles of natural justice had not been complied with, the fact of the matter was that it appeared before the respondent and was given a hearing before the respondent made its decision. Dr. Okubasu further submitted that, in effect, the applicant wanted the Board to do that which the Board had no jurisdiction to do. He also urged the Court to note that, out of 21 successful tenderers, the applicant only had an issue with three of the them and yet now seeks to have the entire tender process nullified. He accordingly prayed for the dismissal of the applicant’s Notice of Motion.

[36]In response to the submissions made by the respondent and the interested parties, Mr. Gikandi filed supplementary submissions dated 5th October 2023. He argued that, if indeed the respondent has no capacity to be sued as urged by Mr. Mbogo, then that, without more, is a confirmation that the respondent’s decision is a nullity. He added that it was untenable for the respondent and the 1st and 2nd interested parties to rely on that argument and yet predicate its entire case on court decisions in which the respondent was recognized as a party. He also pointed out that the respondent filed a detailed response to the application by way of a Replying Affidavit sworn by Mr. James Kilaka who was duly authorized by the Board to made that deposition. Consequently, Mr. Gikandi urged the Court to not allow technicalities to overrun substantive justice as mandated by Article 159 of the Constitution.

[37]On the interpretation of Section 175 of the PPADA, counsel placed emphasis on the use of the word “or” in that provision and posited that one may commence the application within 14 days of the occurrence of the breach or within 14 days of the notification of award. He further stated that the applicant only got to learn of the awards to at least 3 parties who did not meet some of the mandatory conditions after receipt of the letter dated 10th July 2023 from the 1st and 2nd interested parties; and therefore it was perfectly in order for the applicant to file its Request for Review within 14 days of the date of posting of the letter dated 10th July 2023.

[38]Mr. Gikandi also responded to the submission by Mr. Mbogo that the instant application is incompetent for having been filed outside the 14-day period stipulated in Section 175 of the PPADA. His argument was that the filing of a judicial review application, for purposes of Sections 8 and 9 of the Law Reform Act, Chapter 26 of the Laws of Kenya, and Order 53 of the Civil Procedure Rules, starts with the filing of an application for leave. He relied on Blue Sea Services Ltd & Another v Public Procurement Administrative Review Board & Another [2016] eKLR to buttress his argument.

[39]In response to the submissions on locus standi, Mr. Gikandi reiterated his argument that, the applicant having fully participated in the tender process by going through the preliminary, technical and financial evaluation stages, had reasonable expectation that the 1st and 2nd interested parties would uphold Articles 10, 47, 201 and 227 of the Constitution and the relevant provisions of the PPADA by awarding the tender on merit. On the authority of Blue Sea Services Ltd & Another v Public Procurement Administrative Review Board (supra), Mr. Gikandi rooted for nullification of the entire tender on account of the illegalities noted in respect of the three tenderers aforementioned.

[40]I have given careful consideration to the application, the Statement of Facts and the Verifying Affidavit filed at the leave stage, the responses filed thereto by way of Notices of Preliminary Objection and Replying Affidavits as well as the written and oral submissions made in that regard by learned counsel. The background facts are largely undisputed and have been well set out in the Replying Affidavits sworn by James Kilaka and Moses Sirgoi on behalf of the respondent as well as the 1st and 2nd interested parties. Those facts are that Tender No. KPA/075/2022-23/ADM for the Provision of Housekeeping/Cleaning Services (General) was publicly advertised by the 2nd interested party in accordance with the provisions of Section 96(2) of the PPADA.

[41]In response thereto a total of 283 bids were submitted which were opened on 9th March 2023. The applicant and the 3rd to 23rd interested parties were some of the bidders. The bids were thereafter evaluated after which letters of award and regrets dated 10th July 2023 were sent out by the 1st and 2nd interested parties to all the bidders. Upon receiving its letter of regret, the applicant filed a Request for Review before the respondent. The Board, after considering the Request for Review, the responses by the parties and the submissions made before it, came to the conclusion that:(a)It lacked the jurisdiction to hear and determine the Request for Review on the basis that the alleged grounds set out in paragraphs 4, 5, 14, 15, 16, 17, 18, 19, 21, 22 and 24 were time barred, having been raised outside the statutory period of 14 days of occurrence of the alleged breach of duty imposed on the procuring entity in accordance with Section 167(1) of the PPADA as read with Regulation 203(2) of the PPADR.(b)The applicant lacked locus standi to seek review before the Board on account of its failure to plead that it had suffered or risked suffering loss or damage due to breach of duty imposed on the 2nd interested party by the law.

[42]Being aggrieved by the decision of the Board, the applicant opted to move to this Court for leave to apply for an order of Certiorari to quash the decision made on the 21st August 2023 by the respondent in PPARB Application No. 52 of 2023: Space Contractors & Suppliers Investment Limited v Accounting Officer Kenya Ports Authority and 22 Others and consequently the award made on 10th July 2023 by the 1st and 2nd Interested parties with regard to Tender No. KPA/075/2022-23/ADM for the provision of Housekeeping/Cleaning Services (General) at the Port of Mombasa. In the premises, the key issues arising for determination are:(a)Whether the Court has jurisdiction to hear and determine the judicial review application;(b)Whether the respondent has the capacity to sue or be sued; and if so,(c)Whether the application has merit.

A. On the jurisdiction of the Court: [43]The jurisdiction of the Court was challenged from several angles. The first point taken by Mr. Mbogo, counsel for the 1st and 2nd interested parties, was that the application is time-barred, having been filed outside the statutory time stipulated in Section 175 of the PPADA. The same objection was taken by Mr. Sang on behalf of the 6th, 8th, 10th, 14th, 16th and 19th interested parties, and was adverted to in the responses filed by the other interested parties. Indeed, Subsection (1) of Section 175 of PPADA is explicit that: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.”

[44]Needless to state that the jurisdiction of a court or tribunal flows from either the Constitution or Statute. This was well explicated by the Supreme Court in Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR thus:A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second Respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings…Where the Constitution exhaustively provides for the jurisdiction of a court of law, the court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a court of law beyond the scope defined by the Constitution. Where the Constitution confers power on Parliament to set the jurisdiction of a court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law."

[45]On the face of it, since the application for leave to commence judicial review was filed on the 25th August 2023, only four (4) days after the delivery of the decision by the PPARB, and therefore way before the expiration of the 14 days, it would follow that the application was timeously filed. Nevertheless, counsel for the respondent and the interested parties submitted that, since the impugned decision was rendered by the respondent on the 21st August 2023, the substantive application ought to have been filed on or before 4th September 2023; and not 2nd October 2023 as was done by the applicant. They took the view that judicial review proceedings under Order 53 of the Civil Procedure Rules only start upon the filing of the substantive motion; and therefore that the jurisdiction of the Court was ousted by effluxion of time. To buttress this view, Mr. Mbogo made reference to Republic v Commissioner of Co-operative Development, Ex Parte Gusii Farmers Rural Sacco Ltd (supra) in which it was held that:Judicial review proceedings under Order 53 CPR starts when the substantive motion has been filed…”

[46]It is noteworthy, however, that the said decision was rendered in 2004 before the promulgation of the 2010 Constitution. Granted that the remedy of judicial review is now anchored in the Constitution, which also provides, in the same breath, that justice be rendered without undue regard to procedural technicalities, it is my finding that the applicant was at liberty to either file a substantive application directly or seek leave under Order 53 of the Civil Procedure Rules as it did. Having opted to file and application for leave on 25th August 2023, the applicant must, in all fairness, be deemed to have thereby commenced in earnest the proceedings for judicial review, albeit at the risk of his application running afoul of Section 175(3) of the PPADA. Thus, it is my finding that the instant judicial review proceedings were therefore commenced within time, having been brought within 4 days of the impugned decision; and therefore the application is competently before the Court for determination.

[47]The second ground of objection taken by counsel for the interested parties was that the Court is functus officio. This ground of objection was raised by Mr. Sang on the basis that a similar application had been filed over the same subject matter and withdrawn, being Mombasa Judicial Review Application No. E24 of 2023: Mercy Vosenah Musera v Public Procurement Administrative Board and Kenya Ports Authority and 3 Others. The principle is that once a decision has been made by a Court, it is only subject to any right of appeal to a superior court and cannot be revoked or varied by the decision-maker.

[48]According to Black’s Law Dictionary, functus officio is defined thus:(Of an officer or official body) without further authority or legal competence because the duties and functions of the original commission have been fully accomplished.”

[49]Hence, in Raila Odinga & 2 others v Independent Electoral & Boundaries Commission, Ahmed Issack Hassan, Uhuru Kenyatta & William Samoei Ruto (Petition 5, 4 & 3 of 2013) [2013] KESC 8 (KLR) (Civ) (24 October 2013) (Ruling), the Supreme Court made the following observations:18. We, therefore, have to consider the concept of “functus officio,” as understood in law. Daniel Malan Pretorius, in “The Origins of the functus officio Doctrine, with Specific Reference to its Application in Administrative Law,” (2005) 122 SALJ 832, has thus explicated this concept:“The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter.… The [principle] is that once such a decision has been given, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be revoked or varied by the decision-maker.”19. This principle has been aptly summarized further in Jersey Evening Post Limited v A1 Thani [2002] JLR 542 at 550:A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling on adjudication must be taken to a higher court if that right is available” [emphasis supplied]…”

[50]It is plain then that for the doctrine of functus officio to apply the suit must have been heard and a final decision made. In this instance there is no dispute that Judicial Review No. E024 of 2023 was withdrawn soon after it was filed; and as has been pointed out herein above, the reason for the withdrawal was that the documents had been filed before they were signed. In those circumstances, it cannot be said that, in connection with the issues in contest, the Court had performed all its duties. Indeed, Order 25 Rule 1 of the Civil Procedure Rules which Mr. Sang relied on is explicit that:At any time before the setting down of the suit for hearing the plaintiff may by notice in writing, which shall be served on all parties, wholly discontinue his suit against all or any of the defendants or may withdraw any part of his claim, and such discontinuance or withdrawal shall not be a defence to any subsequent action.”

[51]I note that, to augment his arguments in this regard, Mr. Sang quoted extensively from the decision of Hon. Mativo, J. (as he then was) in Priscilla Nyambura Njue v Geovhem Middle East Ltd (supra). However, he appears to have ignored the vital fact that, in that decision, the Court was invited to make orders in the same suit that had been marked as withdrawn. Hence the Court observed that:…It stands to reason that when on withdrawal the Plaintiff ceased to be a party and the Court ceased to have jurisdiction over the suit and thus became functus officio nothing but a fresh suit can again invest the Court with jurisdiction over it. As far as the withdrawn suit is concerned the suit is at an end and no further proceedings can be taken in it; the suit and the Plaintiff do not exist and no application such as an application for revoking the withdrawal can be made in the suit by the Plaintiff…Order 25 Rule 1 provides that the withdrawal shall not be a defence to any subsequent action. Before me is not a subsequent action, but the same suit.”

[52]Hence in George Mwangi Kinuthia v Attorney General [2019] eKLR it was held:It follows a party who withdraws his suit cannot seek to reinstate the same but a party withdrawing a suit has an option of instituting a fresh action as per the provisions of Order 25 Rule 4 of the Civil Procedure Rules…”

[53]To the extent therefore that the applicant filed the instant matter as a separate suit after the withdrawal of Judicial Review No. E024 of 2023, the argument that the Court is functus officio is clearly untenable and is for dismissal.

B. On whether the respondent has the capacity to sue or be sued: [54]The 1st and 2nd interested parties also raised an objection to the applicant’s judicial review application contending that the proceedings are incompetent because the respondent, being an unincorporated body, lacks the capacity to sue or be sued. Section 27(1) of the PPADA, was cited in this connection. It simply states that:There shall be a central independent procurement appeals review board to be known as the Public Procurement Administrative Review Board as an unincorporated Board.”

[55]Accordingly, the question to pose is whether an unincorporated body has the legal capacity to be sued, especially for purposes of judicial review proceedings. Needless to say that a suit by or against an unincorporated body must be brought in the name of, or against all the members of the body, as has been underscored in a plethora of cases, such as Free Pentecostal Fellowship in Kenya v Kenya Commercial Bank [1992] eKLR; Peter Taracha & Another v International Pentecostal Holiness Church & Another [2016] eKLR and Republic v Registrar of Societies Ex-parte Narok Muslim Welfare Association [2017] eKLR. In this instance however, it has to be borne in mind that the right to judicial review is anchored in Article 47 of the Constitution, for which purpose Article 260 defines a person as including a company, association or other body or persons whether incorporated or unincorporated. Additionally, Article 165(6) of the Constitution is explicit that the supervisory jurisdiction of the High Court encompasses decisions made by “…any person, body or authority exercising a judicial or quasi-judicial function…”

[56]Further to the foregoing, Parliament was mandated, under Article 47(3) of the Constitution to enact legislation that would provide for the review of administrative action by a court or if appropriate, an independent and impartial tribunal. The legislation has since been enacted in the form of Fair Administrative Action Act, No. 4 of 2015, which provides, in Section 7(2)(a) that the proper person to sue is “the person who made the decision”; in this case the PPARB. It is therefore my finding that the PPARB has the capacity to be sued and has therefore been correctly cited as the respondent in this matter. I am fortified in this posturing by the decision of Hon. Nyamweya, J. (as she then was) in Republic v Committee on Senior Counsel & Another, Ex parte Allen Waiyaki Gichuhi [2021] eKLR, in which she held:20. In essence therefore, a person can sue or be sued in law if they are a natural person, an unincorporated body of persons or a corporate body, and the only difference in bringing suits against natural, corporate and unincorporated persons is in the manner and procedure employed in suing. This is for the reasons that while natural and corporate persons are bestowed with legal capacity so long as certain conditions exist, unincorporated associations do not have a separate legal personality, and the law does not recognize them as legal entities separate from their natural members.21. An exception however exists in the case of statutory bodies, particularly in judicial review, and the unincorporated status of a defendant has not been regarded as a bar to being subject to and defending judicial review proceedings. It was stated in this regard that a statute can confer legal status on an unincorporated association in the case of Baskins v. United Mine Workers (1921) 15o Ark. 398, 4Ol, 234 S. W. 464, 465. 1, wherein it was held that in the absence of enabling statute, an unincorporated association cannot sue or be sued in the common or association name. and all the members must be made parties, since such bodies have, in the absence of statute, no legal entity distinct from their members.22. This is mainly for the reason that a statutory body gets its powers and authority from an act of parliament, and is generally established to perform specific functions and make judgments in some area of activity. In this respect, the meaning of a ‘statutory body’ may change depending upon the legislation, but the defining factor is that all statutory bodies are established and operate under the provisions of their own enabling legislation, which sets out the purpose and specific powers of the agency.23. It is notable in this respect that in judicial review, the defining factor that gives capacity to a defendant is whether there are certain statutory and legal powers and duties conferred or imposed on the public body or official by a statute or other law. The different rules as regards capacity to sue and be sued in the case of unincorporated associations were the subject of the decision in the English case of Aireborough Neighbourhood Development Forum v Leeds City Council [2020] EWHC 45, wherein it was found that an unincorporated association, which in that case was a neighbourhood forum, had capacity to bring both a judicial review and a statutory challenge against the decision of a public authority. The case confirmed that legal capacity to sue is not a critical requirement in determining a claimant’s capacity to bring a statutory challenge. Instead the claimant must be a person aggrieved, or in the case of judicial review, have standing to challenge. Such a test does not consider legal capacity but instead, focuses on the critical component of sufficient interest in the decision.”

[57]The Court further stated, and I agree entirely, that:26. Since judicial review is a special supervisory jurisdiction which is different from both ordinary adversarial litigations between private parties and appeal rehearing on the merits, the question that determines the capacity of a defendant is whether there is some recognizable public law wrong that has been committed. A defendant in judicial review proceedings therefore, is the public body or public office holder which made the decision under challenge (or failed to make a decision where that failure is challenged), or where the public body or official has legal responsibility for the relevant matter.27. This Court therefore finds for the foregoing reasons, that the Committee of Senior Counsel, being an unincorporated body that has been given existence and duties by the Advocates Act, is a statutory and public body that is capable of suing and being sued for purposes of judicial review.”

[58]Indeed, in Saisi & Others v Director of Public Prosecutions & Others (supra) the Supreme Court held:…when codifying judicial review to a constitutional right, the intention was to elevate the right to fair administrative action as a constitutional imperative not just for state bodies, but for any person, body or authority. It was a clarion call to ensure that the constitutional right to fair administrative actions permeated every aspect of the lives of Kenyans, from their engagements with educational facilities such as universities, to employer-employee relationships, to engaging with public bodies in whatever capacity, or any body, person or authority that exercises quasi-judicial functions. That approach was consistent with realizing the right of access to justice because justice could be obtained in other places besides a courtroom.”

[59]Thus, the respondent herein, having been established within the framework of PPADA, has its functions set out under Section 28 of the Act. Those functions are quasi-judicial in nature, and are therefore amenable to judicial review. In fact, the Act explicitly states so in Section 175(1) thereof that: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.”

[60]It is therefore no wonder that counsel for the respondent and the interested parties placed reliance on several authorities in which the PPARB was sued as the respondent in judicial review proceedings notwithstanding that it is an unincorporated entity.

[61]I therefore find no merit in the argument that, being an unincorporated body the respondent lacks the capacity to be sued.

C. On the merits of the application: [62]Judicial review is largely concerned with the decision-making process as opposed to the merits of the decision; granted that the role of the Court in judicial review is supervisory. It is not an appeal; and therefore remains a process review mechanism in spite of its anchoring in the Constitution. This aspect was reiterated by the Supreme Court in Saisi & 7 others v Director of Public Prosecutions & 2 Others (supra) as follows:76. Be that as it may, it is the court’s firm view that the intention was never to transform judicial review into to full-fledged inquiry into the merits of a matter. Neither was the intention to convert a judicial review court into an appellate court. We say this for several reasons. First, the nature of evidence in judicial review proceedings is based on affidavit evidence. This may not be the best suited form of evidence for a court to try disputed facts or issues and then pronounce itself on the merits or demerits of a case. More so on technical or specialized issues, as the specialised institutions are better placed to so. Second, the courts are limited in the nature of reliefs that they may grant to those set out in section 11(1) and (2) of the Fair Administrative Actions Act. Third, the court may not substitute the decision it is reviewing with one of its own. The court may not set about forming its own preferred view of the evidence, rather it may only quash an impugned decision. This is codified in section 11(1)(e) and (h) of the Fair Administrative Action Act. The merits of a case are best analyzed in a trial or on appeal after hearing testimony, cross-examination of witnesses and examining evidence adduced. Finally, as this court held in the case of Kenya Vision 2030 Delivery Board v Commission on Administrative Justice, Attorney General and Eng Judah Abekah, SC Petition 42 of 2019; [2021] eKLR, in matters involving the exercise of judgment and discretion, a public officer or public agency can only be directed to take action; it cannot be directed in the manner or the particular way the discretion is to be exercised.

[63]In the premises, the applicant had to demonstrate that the decision or act complained of is tainted with illegality, irrationality or procedural impropriety, or is otherwise deficient in terms of proportionality. Hence, in the case of Pastoli v Kabale District Local Government Council and Others [2008] 2 EA 300 it was held:In order to succeed in an application for judicial review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety...Illegality is when the decision-making authority commits an error of law in the process of taking or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality. It is, for example, illegality, where a Chief Administrative Officer of a District interdicts a public servant on the direction of the District Executive Committee, when the powers to do so are vested by law in the District Service Commission...Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards...Procedural Impropriety is when there is a failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision.”

[64]Likewise, in Kenya National Examination Council v Republic, Ex Parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR, the Court of Appeal held:…Only an order of CERTIORARI can quash a decision already made and an order of certiorari will issue if the decision is made without or in excess of jurisdiction, or where the rules of natural justice are not complied with or for such like reasons…”

[65]It is also pertinent to point out that, in the course of a process review, the Court is at liberty to engage in some measure of an analysis of the merits of the impugned decision to enable it ascertain whether or not the decision was procedurally fair for purposes of Article 47 of the Constitution and its derivative legislations. Accordingly, in the Saisi Case, the Supreme Court pointed out that:For the court to get through an extensive examination of section 7 of the, there had to be some measure of merit analysis. That was not to say that the court had to embark on merit review of all the evidence. For instance, how would a court determine whether a body exercising quasi-judicial authority acted reasonably and fairly in the circumstances of the case without examining those circumstances and measuring them against what was reasonable or fair, and arriving at the conclusion that the action taken was within or outside the range of reasonable responses. It was not to be limited to the examination of uncontroverted evidence. The controverted evidence was best addressed by the person, body or authority in charge. There was nothing doctrinally or legally wrong about a judge adopting some measure of review, examination, or analysis of the merits in a judicial review case in order to arrive at the justice of the matter. Rather a failure to do so, out of a misconception that judicial review was limited to a dry or formalistic examination of the process only led to intolerable superficiality. That would be against article 259 of the Constitution which required the courts to interpret it in a manner that inter alia advanced the rule of law, permits the development of the law and contributes to good governance.”

[66]Thus, one of the indubitable aspects of the case, as set out in the affidavits Mr. Kilaka and Mr. Sirgoi is that, upon filing its Request for Review, the applicant was given a hearing by the respondent; whereupon the preliminary objections filed by the interested parties were upheld and the application struck out. Accordingly, the applicant is not, here, complaining that its right to be heard was curtailed in the sense of not being given a hearing, but in the sense that it was unreasonable for the respondent to determine that it had no jurisdiction to entertain its Request for Review; and that the applicant had no locus standi to file the said application.

[67]A perusal of the impugned decision reveals, at paragraph 159 thereof, that the Request for Review was not only with respect to the award of the tender but also with respect to other issues around the tendering process. Hence, the respondent relied on Section 57 of the Interpretation of and General Provisions Act to determine the date on which the applicant ought to have approached the Board. Thus, while the Request for Review was timeously filed vis-à-vis the date of the Letter of Award/Regret, the respondent took the view that since the breaches alleged in the Request for Review occurred at different times prior thereto, the Request for Review ought to have been filed within 14 days of the occurrence of the alleged breaches.

[68]In arriving at its decision, the Board relied on Section 167(1) of the PPADA, which provides that:(1)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.

[69]Regulation 203(2) (c) of the PPADR, on the other hand, requires that: -(2)The request referred to in paragraph (1) shall—SUBPARA (a)…SUBPARA (b)…(c)be made within fourteen days of —(i)the occurrence of the breach complained of, where the request is made before the making of an award;(ii)the notification under section 87 of the Act; or(iii)the occurrence of the breach complained of, where the request is made after making of an award to the successful bidder.

[70]In his Supplementary Submissions, Mr. Gikandi placed emphasis on the word “or” employed in Section 167 (1) and Regulation 203 of the PPADR and reiterated the applicant’s stance that the alleged breaches only came to light after the procuring entity made favourable awards to at least 3 parties who did not meet some of the mandatory conditions. It is indeed true that in the Request for Review dated 28th July 2023, all the grievances raised therein dated back to January-April, 2023.

[71]Thus, after the review of the law and the decision of the Respondent on the question of interpretation of Section 167 (1) of PPADA and Regulation 203 of the PPADR, it is my considered finding that the applicant has not shown in what sense the respondent’s decision on jurisdiction was illegal, irrational or procedurally improper. To the contrary, counsel for the applicant pressed what is plainly a merit issue, namely that the Board failed to properly appreciate the import of the word “or” in the context of the provisions aforementioned.

[72]The second aspect of the applicant’s decision had to do with its holding that the applicant lacked locus standi to file the Request for Review. In support of its decision, the respondent relied on the decision of Court of Appeal of in James Oyondi t/a Betoyo Contractors & Another v Elroba Enterprises Limited & 8 others (supra) where it was held:It is not in dispute that the appellants never pleaded nor attempted to show themselves as having suffered loss or damage or that they were likely to suffer any loss or damage as a result of any breach of duty by KPA. This is a threshold requirement for any who would file a review before the Board in terms of section 167(1) of the PPADA;(1)subject to the provisions of this part, a candidate or a tender, 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.”It seems plain to us that _in order to file a review application, a candidate or tenderer must at the very least claim to have suffered or to be at the risk of suffering loss or damage_. It is not any and every candidate or tenderer who has a right to file for administrative review. Were that the case, the Board would be inundated by an avalanche of frivolous review applications. There is sound reason why only candidates or tenderers who have legitimate grievances may approach the Board. In the present case, it is common ground that the appellants were eliminated at the very preliminary stages of the procurement process, having failed to make it even to the evaluation stage. They therefore were, with respect, the kind of busy bodies that section 167(1) was designed of keep out. The Board ought to have ruled them to have no locus, and the learned Judge was right to reverse it for failing to do so. We have no difficulty upholding the learned Judge.

[73]In the instant matter, the applicant did not plead or claim that it had suffered or risked suffering loss or damage as a result of the breaches complained of in the Request for Review. The grounds were adverted to by the respondent at paragraph 154. Thus, the respondent took the view that the applicant had no locus stand for failure to claim or plead that it had suffered or risked suffering loss or damage due to breach of duty imposed on the 2nd interested party by the PPADA and the PPADR. At paragraphs 156, 157, 158, 167, 168 and 169 of its Decision, the respondent made reference to several authorities to back up its conclusion that the applicant’s locus standi. Accordingly, there is no basis for faulting the said decision in terms of its legality, rationality, or procedural fairness.

[74]In the result, and having perused and considered the impugned decision, it cannot be said that it is ultra vires the powers of the respondent or that it is unreasonable. I have also perused the affidavit filed by the respondent and considered the applicable procedure in respect of Requests for Review vis-à-vis the grounds raised in the applicant’s Notice of Motion and the supporting affidavit filed at the leave stage and find no basis for holding that the respondent committed any procedural infraction in arriving at its decision.

[75]The decision may have been wrong, from the applicant’s standpoint, but the Court is not here concerned with the merits of the decision. Indeed, the Court has no power to substitute its own decision with that of the respondent. Similarly, the Court has no power to nullify the awards made to the various interested parties, considering that the same were not the object of the judicial review application. That aspect was pleaded as a consequential outcome in the event of the quashing of the respondent’s decision and therefore must also fall by the wayside.

[76]In the result, I find no merit in the Notice of Motion dated 2nd October 2023. The same is hereby dismissed with an order that each party bears own costs thereof.It is so ordered.

DATED, SIGNED AND DELIVERED VIA EMAIL THIS 16TH DAY OF OCTOBER 2023OLGA SEWEJUDGEMOMBASA HC JR CASE NO E025 OF 2023 JUDGMENT 12 | Page