Siemens (Proprietary) Limited v Kenya Pipeline Company Ltd & Public Procurement Administrative Review Board [2017] KEHC 9793 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JUDICIAL REVIEW DIVISION

JUDICIAL REVIEW APPLICATION NO.  486 OF 2016

IN THE MATTER OF: AN APPLICATION BY SIEMENS (PROPRIETARY) LTD FOR LEAVE TO APPLY FOR JUDICIAL

REVIEW ORDERS OF CERTIORARI AGAINST THE PUBLIC PROCUREMENT AND REVIEW BOARD

AND

IN THE MATTER OF AN APPLICATION BY SIEMENS (PROPRIETARY) LTD FOR LEAVE TO APPLY FOR

JUDICIAL REVIEW ORDERS OF MANDAMUS AND PROHIBITION AGAINST KENYA PIPELINE COMPANY

AND

IN THE MATTER OF: THE LAW REFORM ACT (CAP 26 OF LAWS OF KENYA)

AND

IN THE MATTER OF: THE PUBLIC PROCUREMENT AND DISPOSAL ACT, 2015

AND

IN THE MATTER OF: THE PUBLIC PROCUREMENT AND DISPOSAL ACT, 2005 (Repealed)

AND

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

BETWEEN

SIEMENS (PROPRIETARY)LIMITED..............................EXPARTE APPLICANT

VERSUS

KENYA PIPELINE COMPANY LTD……………...…….........1ST RESPONDENT

PUBLIC PROCUREMENT ADMINISTRATIVE

REVIEW BOARD…………………………….………...……2ND RESPONDENT

JUDGMENT

1. This matter was heard interpartes on 21st February, 2017 and judgment scheduled for 29th March, 2017. However, by the date of judgement, this court was the sole sitting court in the Judicial Review Division and was engaged in extremely urgent matters which touched on pre-election disputes and which had to be determined expeditiously on priority basis. Accordingly, there had to be a delay in the hearing and determination of all other pending matters and this matter included. The court also proceeded on leave in June-July 2017 and between 1st August, 2017 and 15th September, 2017 there was the court recess. This position is well explained to the parties.

2. Pursuant to leave  of court granted on 13th October, 2016 the exparte applicant  SIEMENS (PROPRIETARY) LIMITEDseeks from this court the following orders:

1. Certiorarido issue to remove into the High Court for purposes of being quashed the decision of the Public Procurement Administrative Review Board (hereinafter “the Board”) in so far as it failed to direct the Kenya Pipeline Company (hereinafter “the Procuring Entity”) to sign the contract.

2. Mandamusdo issue to compel the Procuring Entity to sign the contract dated 14th April 2016 in accordance with the Notification of Award and in accordance to section 68(2) and 69(2) of the Public Procurement and Disposal Act 2005.

3. Prohibitiondo issue to prohibit the Procuring Entity from retendering for the supply, installation and commissioning of SCADA Associated Systems or any such similar solution related to the project or deriving from the amended scope of the tender.

4. Costs of and incidental to the review and this Application be provided.

3. The parties to these judicial review proceedings are Siemens (Proprietary) Limited (hereinafter “the Ex-parte Applicant”) is described as a Limited Liability Company incorporated under the Companies Act, Cap 486 (Repealed) of the Laws of Kenya.

4. The 1st Respondent Board is the Public Procurement and Administrative Review Board, established under Section 27(1) of the Public Procurement and Asset Disposal Act, 2015 and whose mandate is set out in the said Act.

5. The second respondent is the Kenya Pipeline Corporation which is the Procuring Entity and is a State Corporation incorporated under the Companies Act, Cap 486 (Repealed) of the Laws of Kenya.

6. The Notice of Motion is predicated on the grounds in support thereof on the face of the application and as contained in the statutory statement and verifying affidavit sworn by ALES MRVAR the applicant’s Country General Manager.

7. The exparte applicant’s case is that on 5th February 2016, the Ex-parte Applicant received a notification of award dated 29th January 2016, whereby it was informed that its bid for Tender No. SU/QT/070N15 had been successful. The Applicant accepted the Award vide a letter dated 5th February 2016.

8. That After several clarification meetings, the Procuring Entity forwarded to theEx-parte Applicant a contract which theEx-parte Applicant duly signed, dated and returned to the Procuring Entity in accordance with the terms of the Tender, which, according to the exparte applicant, the form of the Tender created a binding contract between the Ex-parteApplicant and the Procuring Entity.

9. It is claimed that the Procuring Entity (PE) nullified the award by a letter dated 24th August 2016, pursuant to section 36 of the Public Procurement and Disposal Act, 2005 on the basis that there was a variation in scope of the project.

10. The Ex-parte Applicant then appealed against this decision of the PE to the Review Board on 7th September 2016. The Board in its decision found that the Procuring entity acted in error in terminating the award and therefore annulled the decision of the Procuring Entity to nullify the award. The Board however declined to direct the Procuring Entity to sign the contract on the basis that the scope of works had been varied, and that is the basis for these judicial review proceedings.

11. The exparte applicant alleges that the Board in arriving at the impugned decision acted ultra vires its mandate by:

a. Taking into consideration whether or not there was a variation of scope of the project by the Procuring Entity, which issue was not placed before it for determination;

b. Purporting (suo motu) to frame issues and deal with matters not contained in the Request for Review, thereby exceeding its mandate under the Act.

c. Admitting, relying on and making a determination on documents filed outside the time limit contrary to the provisions of regulation 74 and 77 of the Public Procurement and Disposal Regulations, 2006.

12. It is further claimed that the Board, in arriving at the determination that the nullification was void, yet still failing to direct the procuring entity to sign the contract acted unreasonably and in defiance of logic as:

a. The decision to annul the award of tender was quashed in its entirety by the Board.

b. The Board, thereafter, relied on the very reason contained in the quashed decision, to decline to exercise its mandate to direct the Procuring Entity to sign the contract.

c. The decision of the board in finding that there is a valid tender award, notification and contract but declining to compel the Procuring Entity to sign the contract is not only irrational but also meets the standards of Wednesbury unreasonableness.

d. The Board acted unreasonably in selectively choosing and/or failing to take into consideration decisions/authorities which were cited by the Ex-parte Applicant in support of its case, and in particular PPARB Decision no. 8 of 2015, AON Insurance Brokers vs Teachers Service Commission.

e. The decision of the Board is irrational as it leaves the ex parte Applicant with a valid tender which it cannot enforce at this time.

13. The exparte applicant complains that the refusal by the Board to carry out its mandate in accordance with Section 98(b) of the Public Procurement and Disposal Act, 2005 and Section 173(b) of the Public Procurement and Asset Disposal Act 2015 is unreasonable, unfair and unjustified in the circumstances, and against the legitimate expectations of the Ex-parte Applicant.

14. According to the exparte applicant, the Board further took into account extraneous and irrelevant considerations which were contrary to the Public Procurement and Asset Disposal Act 2015 and the Public Procurement and Disposal Act 2005 including:

a. Whether the SCADA System which the Ex-parte Applicant is to install would still be used in the pipeline project; and

b. Whether the scope of works under the project had actually changed.

15. Further, that the Board is bound to execute its mandate in accordance with the provisions of the Public Procurement and Disposal Act, 2015 and the Public Procurement and Disposal Act 2005 and is therefore subject to this Honourable Court’s supervisory power of judicial review.

16. The above position as stipulated in the statutory statement was reiterated in the affidavit ofALES MRVAR annexing documents in support of the motion.

17. The notice of motion was opposed by the Respondents through replying affidavits. On the part of the 2nd respondent Review Board, reliance was placed on the replying affidavit sworn byMrHenock K. Kirunguthe Secretary of the Public Procurement Administrative Review Board.

18. The 1st respondent Procuring Entity Kenya Pipeline Company filed a replying affidavit sworn by Gloria Khafafa its Company Secretary and filed on 15th February, 2016.

19. The Review Board Concedes that on 7th September, 2016, the Ex-parte Applicant filed a Request for Review before the 2ndRespondent challenging the termination of the Tender No. SU/QT/070N/15 for the Supply, Installation and Commissioning of SCADA and Associated Systems.

20. THAT after receiving the Request for Review from the Ex-parte Applicant, the Respondent served a copy on the 1st Respondent PE notifying it of the pending Review and requiring it to make an appearance for the hearing of the Review, in accordance with Regulation 74 (1) and 74(2) of the Public Procurement and Disposal Regulations, 2006, hereinafter referred to as “the Regulations.”

21. THAT on 19th September, 2016, the 1st Respondent filed a preliminary objection to oppose the Request for Review, requesting the Review Board to dismiss with costs to it, stating that the validity period of the tender had lapsed and that the termination of the tender was done before a contract was entered into.

22. That the 2ndRespondent heard the parties, considered their pleadings and submissions, determined the application for review and delivered its ruling on 27th September, 2016.

23. That the 2nd Respondent only took into consideration the provision of the law, facts that were presented before it which were relevant in deciding the above issues but not extraneous issues which were not placed before it.

24. It was also contended that the 2nd Respondent’s decision was based on its findings that:

i. The evaluation process was done during the tender validity period and therefore, the purported termination of the tender was done while the tender was still valid;

ii. That the Procuring Entity had erred in law in terminating the award issued to the Applicant;

iii. That in considering the evidence placed before it, the scope of the works under the tender as awarded had changed and thus the granting of any prayers of the Applicant, would be unenforceable.

25. Further, the 2nd Respondent contended that the it annulled the decision of the procuring entity to nullify the award of Tender No. SU/QT/070N/15 for the supply, installation and commissioning of SCADA and Associated Systems; The Board further declined to direct the procuring entity to sign the contract dated 15th April, 2016 in accordance with the letter of notification in view of the change of the scope of the works; and that each party would bear its own costs as each had been partly successful in the matter.

26. According to the 2nd respondent, in making its decision,the Board considered all documents of evidentiary value placed before it by the parties and the submissions of the parties on each of the issues raised in the Request for Review.

27. Further, that the decision by the Board was a decision made within its mandate, and the specific sections of the law in particular Section 173 of the Public Procurement and Asset Disposal Act 2015, on which the Board’s decision was pegged.

28. That the Applicant had not demonstrated in any manner that the Board was guilty of unreasonable exercise of power and irrationality in arriving at its decision since the decision by the Board is grounded in law after review of all material conditions placed before it and importantly in line with its mandate to uphold public procurement process.

29. It was contended that the Applicant had not demonstrated how it had suffered prejudice owing to the Board’s decision nor had it provided any proof that there was any risk in the Procuring Entity engaging in a fresh tendering process for the supply and installation of the SCADA Associated Systems.

30. The 2nd respondent urged the Court to dismiss the Applicant’s Application for Judicial Review for want of merit and that  the Board’s decision was nothing short of reasonable, consistent and in line with the exercise of its powers and the provisions of the Act.

31. The 1st Respondent Procuring Entity opposed the application and filed a replying affidavit sworn by Gloria Khafafa and filed in court on 15th February, 2017 conceding that indeed, the 1st respondent notified the exparte applicant vide a letter date 29th January, 2016, of the award of the tender for the supply, installation and commissioning of a Supervisory Control and Data Acquisition (SCADA) and Associated Systems to the applicant.

32. That however, before the 1st respondent could sign the contract with the exparte applicant, the 1st respondent Procuring Entity realized that there had been a change of scope of the project which was the subject of the tender and that such change of scope of works had the effect of reducing the cost of the project which would accordingly necessitate the retendering  so that the new tender documents take into account the revised scope  of the project and that the bidders are granted an opportunity to participate fairly for the tender, and by a letter  dated 24th August, 2016 the 1st respondent notified the exparte applicant of the decision to nullify the award of tender.

33. As a result, the 1st respondent took the decision to terminate the tender pursuant to section 36 of the Public procurement Asset Disposal Act to pave way for the new tendering process for the project in accordance with the new scope.

34. The 1st respondent contends that as no contract was signed between it and the exparte applicant, the termination of the award was lawful pursuant to section 36(1) of the Act and that it complied with section 36(2) and (7) of the Act.

35. The 1st respondent also faults the 2nd respondent’s decision to annul the nullification/termination of the award and contends that the decision by the Review Board was made in error because the award did not constitute a contract between [parties. It also maintains that the issue of the changed scope of works of the tendered project was submitted by parties before the Rev iew Board.

36. The 1st respondent also maintained that mandamus cannot issue to compel the signing of a contract subject of a tender whose scope had changed because the court would not be able to supervise the performance of such a contract, whose terms have not been agreed upon.

37. The 1st respondent urged the court to dismiss the exparte applicant’s case but called on the court to find that the Review Board’s nullification of the termination of the award by the 1st respondent was in error.

38. The parties filed written submissions which they also highlighted orally before me on 21st February, 2017.

Exparte Applicant’s Submissions

39. The exparte applicant filed written submissions and orally argued the application. In Mr Ngeno’s submissions, he reiterated the written submissions as filed on 3/11/2016 and raised two main issues for determination with ancillary questions to be answered namely:

i. whether the exparte applicant has established grounds for the grant of judicial review remedies; and

ii. whether the reliefs sought should be granted to the exparte applicant;

iii. Who should meet the costs of the application?

40. In Mr Ngeno’s submissions, he posed the following questions: whether there was in existence a notification of tender award in favour of the exparte applicant by the 1st respondent which award was upheld by the 2nd respondent Review Board on 27th November 2016; whether the 1st respondent intends to retender the project in view of the revised scope of work; and secondly, whether according to the 2nd respondent, there is evidence to show that there is a fresh tendering process.

41. The exparte applicant’s counsel maintained that the applicant having signed the contract, the 2nd respondent should have directed the 1st respondent to execute the contract since the award of tender was upheld in the Review Board’s decision.

42. On the scope of judicial review remedies, reliance was placed on Council of Civil Service Union vs. Minister for Civil Service [1985] A.C 374. At 401D where it was held that judicial review would issue where it was shown that there is illegality, irrationality and procedural impropriety.

43. It was also submitted, relying on the case of The Commissioner of Lands v Kunste Hotel Limited CA 234 of 1995 that judicial review is concerned not with private rights or the merits of the decision being challenged but with the decision making process.

44. Accordingly, it was submitted that the Board being a statutory administrative body or tribunal, its actions are amenable for review under all the three heads set out in the Hotel Kunste[supra] case.

45. The court was also urged to be guided by the overriding principles relating to public procurement matters as set out in the case of Republic v PPARB &Another exparte Selex Sistemi Integrati Nrb HCMA 1260 OF 2007[2008] KLR 728 which are:to maximize economy and efficiency as well as to increase public confidence in those procedures; to promote the integrity and fairness of the procurement procedures and to increase transparency and accountability, the latter being core values of a modern Kenya, which are not to be sacrificed at the altar of finality.

46. It was submitted that section 53 (1) of the 2005 Act and Rule 8(3)(m) of the 2016 Rules mandate the Procuring Entity to prepare  contract variations and modifications to documents which variations would then be submitted to the tender Committee for approval  under Rule 11(1). Further, that section 53(1) of the Act envisions variations before submission of tenders by parties, which variations, according to section 47 and Regulation 31 of the Rules, can be done after the contract is signed and that the intention of the law was to have a transparent procurement process.

47. Further, it was submitted that the procuring entity having varied the scope of the works after notification of the award, such variation of the scope of works is not a reason to nullify the award as parties are allowed to negotiate on the variations.

48. In addition, it was submitted that Rule 10(d) mandates the Tender Committee to ensure that there were available Funds for the procurement and that in this case there were no minutes to show the position on how the issue of unavailability of funds was arrived at or that the Tender Committee met and decided on the issue of variation of scope as required under Rule 12(6). Further submission was made to the effect that it would be illegal and fraudulent for the procuring entity to hold itself out as being able to do something which it was not able to do and in this case, tendering.

49. Further, that the issue of variation of scope was not submitted before the Review Board for determination hence the decision based on variation of scope of works was illegal. It was also submitted that the Review Board’s decision to deny the applicant orders was illegal and irrational.

50. It was further submitted that tender documents cannot be varied and that only a contract can be varied. Reliance was placed on R. vs. Olive Telecommunications Ltd PVT Limited [2014]eKLRwhere it was held that courts would be no rubber stamp of the decisions of administrative bodies; that tribunals or administrative bodies must act in good faith; extraneous considerations ought not to influence its actions and it must not misdirect itself in fact or law.

51. It was submitted that neither the exparte applicant nor the Procuring Entity submitted on the issue of variation of scope of works subject of the tender for the Board’s determination; and that the exparte applicant solely challenged the nullification of the award whereas the Procuring Entity argued for the finality of the nullification of the award, stating that SCADA system was rendered obsolete.

52. It was therefore submitted that the Board in proceeding to frame the issue on variation of the scope of the project, which issue was not submitted to it, acted malafides against the principle of public procurement as set out in the Selex Sistemicase hence the court was urged to find that the decision of the Review Board was ultavires as it dealt with an issue not pleaded or placed before it hence reached a wrong conclusion.

53. On irrationality, it was submitted that the Board after nullifying the Procuring Entity’s decision to award the tender on account of variation of the scope of work, should have proceeded to direct the procuring entity to sign the contract dated 15th April 2016 which the exparte applicant had already signed.

54. It was submitted that the Review Board failed to carry out its mandate in accordance with section 98 (b) and (c) of the Act to compelthe Procuring entity to do that which it ought to have done which is to sign the contract and only negotiate on the varied scope of works after signing the contract. As a result, it was submitted that the Review Board deprived the applicant of legitimate expectation to receiving a duly executed contract in accordance with the Act and the Notification of Award.

55. It was submitted that in the earlier case of PPARB case No. 8 of 2015 AON Insurance Brokers Limited Vs. Teachers Service Commission, relied on by the exparte applicant, the Review Board had compelled the Procuring Entity to sign the contract where the PE had in a similar manner as was in this case terminated a tender award yet it had in this case departed from its earlier position.

56. It was therefore submitted that the decision by the Review Board falls within the WednesburyUnreasonableness category as it defies logic such that no sensible person or body could have reached the same decision considering the facts of the case and the applicable law hence the decision was a nullity. Reliance was placed on R Vs. PPARB Exparte Zhongman Petroleum &Natural Gas Group Company Limited [1949] 1kb 223.

57. It was argued that the Board refused to consider that the  Form of Tender provided that  until a formal contract is prepared and executed this tender together with your written acceptance thereof and your notification of award  shall constitute a binding agreement between us.

58. It was submitted that the Review Board shielded the Procuring Entity from the cost of its actions which demonstrates bias in favour of the Procuring Entity hence judicial review orders are merited.

59. On procedural impropriety, it was submitted that the Review Board committed a procedural impropriety as defined in the case of Pastoli v Kabale District Local Government Council and Others [2008] 2EA 300 by accepting a preliminary objection filed by the PE thirteen days after the Notification of Appeal contrary to Rule 77(1) of the 2006 Rules which require that such PO be filed within five days from the date of the notification. Further, that the Rule requires service of the PO be served at least one day before the hearing.

60. Further, that the Review Board admitted the statement in support of the PO contained in Annexure AM-6(2) which statement was filed and served on 22nd September 2016 and in relying on documents which were marked confidential, which documents were never produced to the applicant before the Board but that they were availed to this court.

61. Further, that the Review Board allowed the admission of a replying affidavit which was only filed on the morning of the hearing which was prejudicial to the applicant’s case. Reliance was placed on R vs. PPARB &Others [2008] eKLR to argue that failure to adhere to the law renders the decision reached by the decision maker devoid of legality and therefore void.

62. It was submitted that the Board relied on extraneous matters in upholding the notification of award but rejecting to direct the procuring entity to sign the contract. The applicant therefore urged this court to find that the failure by the Review Board to direct the Procuring Entity to sign the contract dated 15th April, 2016 was void on grounds of irrationality.  This Court was urged to grant the prayers sought with costs to the exparte applicant.

1st Respondent’s submissions

63. The 1st respondent Procuring Entity on its part submitted through Miss Nyaga, relying on the written submissions in opposition contending that although the applicant was notified on 29/11/2016 of the award as a successful bidder, the procuring entity realized before the contract could be signed, that there had been a change of scope of the works relating to the ICT Systems covering various pipeline projects of SCADA System. That the procuring entity realized that the tender if implemented as per the variations would cost much less than the amount for which the applicant had been awarded the tender.it is at that stage that the tender committee met and decided to terminate the tender to take into account the variations and the applicant was notified of the nullification of the award.

64. It was submitted that the decision by the Review Board considered all the issues raised and that the 1st respondent filed documents showing the changed scope of works and that the decision of the Board clearly captures the aspect of variations that led the Board to refuse to direct the 1st respondent to sign the contract. Further, that even the applicant’s counsel made submissions on the question of varied scope hence the Board had jurisdiction to deal with the question of variation of scope of works.

65. It was also contended that the Board correctly considered that the contract if executed was not implementable because of the changed scope. Reliance was placed on Kenya Pipeline Co. Ltd vs. Hyosung Ebara Co. Ltd, sections 2 of the Act and Article 227 of the Constitution and a submission made that signing of the contract would not maximize economy as a tender must take into account cost, efficiency and value for money. In addition, it was submitted that the court would be usurping the Review Board’s powers if it directed the signing of a contract as this is not an appeal.

66. It was submitted that there was no modification of tender documents but variation of scope of the tendered project.

67. Counsel also ventured into the submission that the Board in the first place, committed a jurisdictional error of law and acted irrationally by nullifying the cancellation of tender by the 1st respondent procuring entity. Reliance was placed on JGH Marine A/S Western Marine Services Ltd. CNPC Northeast Refining &Chemical Engineering Co. /Pride Enterprises vs. Public Procurement Administrative Review Board &2 others [2015] eKLR.

68. It was further submitted that section 36 of the Act allows the procuring entity to terminate procurement proceedings at any time without entering into a contract and that the Act does not say termination before awarding the tender to the successful bidder. Reliance was placed on Republic v National Housing Corporation exparte Ernie Campbell &Co. Limited JR 48 of 2016

69. It was submitted that the wordings in section 66 of the Act are “when” there is a contract between the successful bidder and the procuring entity.” Further reliance was placed on R v National Social Security Fund exparte Spur Security  where Odunga J considered section 36 of the Act and held thatnotification of the award does not constitute a contract hence the Review Board should not have nullified the termination of the tender.

70. It was submitted that clause 2:2:82 of the tender documents was also clear that notification of award did not constitute  a contract, reliance being placed on JGH Marine A/S  Western Marine Services v PPARB & 2 Others[2015]eKLR. It was contended that it was irrational for the Review Board to nullify the termination of tender as there was no contract signed and that such a contract if signed cannot be implemented.

71. It was also submitted that prohibition cannot issue because the project belongs to a public entity meant to serve the whole country hence the court cannot usurp powers of the procuring entity and prohibit it from carrying out a retender.

72. It was further submitted that there was a cost implication to the project and that the applicant can resubmit its bids for consideration in the varied scope hence the court should annul the decision of the Board.

73. Counsel for the 1st respondent urged the court not to grant mandamus and prohibition as sought but that the court should reverse the decision of the Board nullifying the termination of the notification of the award to the exparte applicant.

The 2nd Respondent’s Submissions

74. Mr Munene counsel for the 2nd respondent wholly adopted the 2nd respondent’s detailed written submissions as reproduced herein below. According to the 2nd Respondent Review Board as submitted by Mr Munene, it was contended that in an application for judicial review, the applicant’s case is limited to the grounds set out in the statement of facts which are the basis upon which leave is granted. Reliance was placed on the case of Khobesh Agencies Limited and other v Minister of foreign Affairs and International Relations and others Nairobi JR No. 262 of 2012 (2013) e KLR) and order 53, rule 4(1) of the civil procedure rules.

75. It was submitted that In the 2nd respondent’s view, the issue of change of scope of the works was pleaded in the ex-parte applicant’s request for review filed before the 2nd Respondent Board on 7th September 2016 as shown by annexture to the supporting affidavit of Ales Mrvar (annexture marked ‘AM6’) at the paragraph 6 of the request for review which reads thus;

‘Vide a letter dated 24th August 2016, the Respondent informed the Applicant that it had nullified the award pursuant to section 36 of the Public Procurement and Disposal Act 2005, due to a change of scope in the project….”

76. It was therefore submitted that the issue of change of scope was canvassed before the 2nd Respondent Board by both parties as per page 5 of the decision of the Board (annexure marked ‘AM7’ to the Ex-parte applicant’s supporting affidavit) where counsel for the ex-parte applicant is quoted submitting as follows;-

‘the applicant however submitted that on or about 24th August 2016, the procuring entity informed the Applicant that it had nullified the award of the tender to the Applicant under the provisions of section 36 of the Public Procurement and Disposal Act on the grounds that there has been a change in the scope of the works under the tender…’

77. Further, that Counsel for the procuring entity responded to the same on page 7 of the same document(record of proceedings and decision of the 2nd Respondent Board) where he is recorded as having submitted as follows;

‘……that the subject tender had been terminated because the scope of the works as tendered for had either changed or had been overtaken by events…”

78. It was the 2nd Respondent’s submission that the issue of variation of the scope of the works was indeed in issue before it contrary to the ex-parte applicants assertions, and that in any event, the ex-parte applicant did not challenge the fact of variation of the scope of works; so that it was a veritable fact that the contract was going to vary the scope of the works.

79. The 2nd Respondent relied on the decision of this court in the case of Republic v Public Procurement Administrative Review Board & 3 others Ex-Parte Olive Telecommunication PVT Limited [2014] eKLRwhere in dealing with whether the Respondent Board could deal with issues arising from the respective parties’ pleadings and submissions the court held as follows;-

“Review” is defined in Black’s Law Dictionary, 9th Edition at page 1434 inter alia as “Consideration, inspection, or reexamination of a subject or thing.”  Ballentines Law Dictionary on the other hand defines the same word at page 482 inter alia as “A reevaluation or reexamination of anything.”  Clearly a review is much wider in scope than an appeal. However, being an administrative action, it is our view that the provisions of Article 47 of the Constitution applies to the proceedings, just like any other administrative action, pursuant to a request for review.  That provision deals with fair administrative action which ought to be expeditious, efficient, lawful, reasonable and procedurally fair.  In our view the catchword is “fairness”.  It is therefore our view that so long as the issue has been put forward by the Respondent Board to the parties and the parties are given a fair opportunity of adequately addressing the same, this Court would not be entitled to interfere with the decision merely because the issue was not properly pleaded.  As was held in Railways Corporation vs. E A Road Service Ltd [1975] EA 128, where an issue though not properly pleaded or asserted by a party, but in the court’s opinion became a general issue at the trial without objection on the part of the other side, the objection that the issue was not pleaded must fail if there is evidence to support the finding thereon.

It was contended that the decision in Odd Jobs vs. Mubia [1974] EA 476 where it was held that a Court may base its decision on an issue, where it appears from the course followed at the trial that the issue has been left to the Court for decision, is no longer good law in light of the decision of the Court of Appeal in Nairobi City Council vs. Thabiti Enterprises Ltd [1995-1998] 2 EA 231.  The latter decision was delivered on 7th March, 1997.  However, the former case was followed in Abdi S Rahman Shire vs. Thabiti Finance Co. Ltd. [2002] 1 EA 279 which was delivered by the same (Court) on 8th March, 2002.  Similarly the case was considered with approval by the Court in Marco Munuve Kieti vs. Official Receiver And Interim Liquidator Rural Urban Credit Finance & Another Civil Appeal No. 164 of 2002 which was a decision delivered on 28th May, 2010 by a bench composed of judges, one of whom decided the Thabiti Case.  The same course was followed in Jackson K Kiptoo vs. The Hon Attorney General [2009] KLR 657, a decision decided on 6th November, 2009 by the same Court.  It is therefore clear that even after the Thabiti Enterprises Case the Court of Appeal continued to cite with approval the Odd Jobs Case.

The four main issues that the Ex parte Applicant claimed were not pleaded by any of the parties and yet the Board went ahead to consider and determine included;

……………The concern of this Court is whether these issues were pleaded, or arose in the course of proceedings and were responded to by the Ex parte Applicant and the 1st Interested Party.  We note the Ex parte Applicant, in relation to the issues complained of, used phraseology such as ‘’if such an allegation had been properly pleaded, and the applicant [had] been given a proper opportunity to respond...’’as the basis of the queries on the observance of the demands of natural justice by the Respondent.  Those words portend admission that there was a form or semblance of pleading of the issues complained of except, according to the Ex parte Applicant, it was not to the full standard of the law.  That notwithstanding, we have scrutinized the decision of the Respondent and the documents presented before it and make the following observations and conclusions on the matter;

a. The Request for Review filed by the 2ndInterested Party at paragraphs 1 and 3 pleaded illegibility of the Ex parte Applicant on account of not being an OEM, failure to meet the technical and financial qualifications.

b. The Request for Review filed by the 3rd Interested Party in paragraph 4 pleaded that there was non-compliance with the Act and the Regulations therein.  Specific paragraphs i.e. 4. 1, 4. 1.1, 4. 1.2, 4. 2 and 4. 3 raised the issues of whether the Ex parte applicant was an OEM, whether it was joint venture, whether it had the requisite experience of not less than 5 years in the manufacturing and distribution of ICT related services as outlined in the Tender Data Sheet.

c. Further, the Response to the 3rd Interested Party’s Request for Review, at paragraphs 6 and 7, the issue of financial turnover of the Ex parte Applicant, experience in undertaking similar contracts and whether the Ex parte Applicant was a consortium, joint venture or not were addressed.  Similarly, the entire Ex parte Applicant’s Response to the Request for Review by the 2nd Interested Party and specifically paragraphs 3, 4, 5, 6, 7 and 8 addressed similar issues including that of OEM.

d. The Procuring Entity’s Response to the Request for Review by the 3rdInterested Party at Page 3 and 4, responded to the grounds of non-compliance with the tender requirements, evaluation criteria and non-disclosure.  The Procuring Entity categorically stated that the Ex parte Applicant (successful bidder) had the necessary qualifications and met all the conditions of the tender on technical and financial tests.  It made specific averments on the qualifications of the Ex parte Applicant as it showed existence of joint venture or consortium; was an OEM; had ISO certification; had the necessary experience.  It also referred the Review Board to the documents it had provided and which appeared at pages 155 to 305 of the Ex parte Applicant’s bid document on these issues. For precise location of these averments see paragraphs 12, 15, 16, 17, 18 and 19 of the Response that was filed by the PE.

….From the foregoing, we conclude the issues complained of were pleaded by the parties and were responded to by the Ex parte Applicant as well as the Procuring Entity.  Even going by the case of Odds Jobs (supra), if the issues had not been specifically pleaded, they arose in the course of proceedings and were canvassed by the parties.  They were, therefore, properly before the Board for determination. Consequently, the framing of issues by the Respondent for determination upon those matters raised in the pleadings and in the trial was in order.  Similarly, we wish to state that the adequacy of a party’s response to an issue is determined by the party making the response, and is incumbent upon such party to apply for more time to make more elaborate response if he so desires.  It is undesired of the law that the tribunal or court should pronounce that a party’s pleadings contains adequate material before close of pleadings unless it descends to the arena to assist the parties plead their respective cases: certainly it will be engulfed in the dust blown out of the litigants’ positioning themselves in the duel.  The work of the tribunal is to allow parties sufficient time to plead their cases, but of course, within the bounds of the applicable law on the matter.  As was held in Union Insurance Co. of Kenya Ltd. vs. Ramzan Abdul Dhanji Civil Application No. Nai. 179 of 1998:

“Whereas the right to be heard is a basic natural-justice concept and ought not to be taken away lightly, looking at the record before the court, the court is not impressed by the point that the applicant was denied the right to defend itself. The applicants were notified on every step the respondents proposed to take in the litigation but on none of these occasions did their counsel attend.  Clearly the applicant was given a chance to be heard and the court is not convinced that the issue of failure by the High Court to hear the applicant will be such an arguable point in the appeal.  The law is not that a party must be heard in every litigation.  The law is that parties must be given a reasonable opportunity of being heard and once that opportunity is given and is not utilized, then the only point on which the party not utilizing the opportunity can be heard is why he did not utilize it.”

….In view of the time limitation for review by the Respondent in Section 92 of the Act, it is not true that the Ex parte Applicant and the 1st Interested Party were not afforded an opportunity or sufficient time to rebut the issues in contention herein.  They were served with the requests and the necessary documents to which they responded; they also canvassed the issues and submitted on them.  At this juncture we must point out that a party who deliberately makes submissions in doses will not be allowed to rely on its own omission as a basis for further challenge of the decision of the Tribunal in any subsequent proceeding including judicial review unless it can show that the matter consists in a discovery of new and important matter which, after the exercise of due diligence, was not within his knowledge at the time of the primary submissions before the Tribunal.  And in such rare cases, the stringent test for new or additional evidence will apply.  That is not the case here as all the things the Ex parte Applicant and the 1st Interested Party are talking about were already before the tribunal and nothing stopped them from making what they are calling elaborate submissions.

…As was held in Gurbachan Singh Kalsi vs. Yowani Ekori Civil Appeal No. 62 of 1958,  [1958] EA 450:

“Where a given matter becomes the subject of litigation in, and of adjudication by a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not, except under special circumstances, permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case.”

…We also note that in the course of the hearing, the Review Board sought to know whether there was any objection to the Request for Review and all the parties indicated none had any objection even to the Board referring to the documents as long as they were given an opportunity to peruse the documents and likewise comment on them.  The examination of documents therefore proceeded by the agreement of all parties.

….The Board therefore was within the law to deal with the aforesaid issues and did not act in excess of its mandate.

80. The 2nd Respondent urged this court to consider the material and the pleadings of the parties before the 2nd Respondent Board and similarly find that the Board did not act ultra vires its powers in determining issues that were properly before it.

81. On the allegations that Documents were filed outside time limit, it was submitted by the 2nd respondent that this issue never arose before the 2nd Respondent Board and it has been broached for the first time in the proceedings before this Superior Court. The 2nd Respondent invited this Court to consider the Record of the proceedings before it contained in annexture marked ‘AM7’ to the supporting affidavit of Ales Mrvar and find that this is an issue that never arose  and that in any event even in the current proceedings the ex-parte applicant has not indicated which documents it is making reference to.

82. On allegations of Irrationality, it was submitted that the ex-parte applicant has made heavy weather of the decision of the 2nd respondent Board in refusing to compel the procuring entity to sign the contract. Claiming that the refusal was irrational and in dereliction of the 2nd Respondent duties as provided for under section 98(b) and (c) of the Public Procurement and Disposal Act, 2005.

83. On what irrationality is, it was submitted that the courts have defined what would constitute irrationality in various decisions. In Republic v Kenya Power & Lighting Company Ltd & another [2013] eKLR,Korir J stated thus:

“I think the words of Lord Greene, M.R. at page 229 in the Wednesbury Corporation case (supra) will make good closing remarks in this case.  He observed that:-

“It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word "unreasonable" in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting "unreasonably." Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington LJ in Short v Poole Corporation [1926] Ch. 66, 90, 91 gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another”

84. It was submitted that it is not enough for an applicant in judicial review proceedings to claim that a tribunal had acted illegally, unreasonably or in breach of the rules of natural justice. Rather, that the actual sins of a tribunal must be exhibited for judicial review remedies to be granted.

85. That the onus is placed on the ex-parte applicant to demonstrate that the decision of the Respondent was so absurd that no sensible person could ever dream that it lay within the powers of the authority. In stating the above the 2nd Respondent was further guided by the decision of Korir J in Republic vs. PPARB & Another Exparte GIBB Africa Ltd & Another [2012]eKLRwhere the learned Judge stated thus;

“In my opinion, the only ground upon which the applicants can be allowed to challenge the decision of the 1st respondent is that of unreasonableness or irrationality. The test for unreasonableness that has been accepted was set out in the English case of Associated Provincial Pictures House Ltd V Wednesday Corporation (1947) 2 ALL ER 680 where Greene M.R. stated as follows:

“In the present case we have heard a great deal about the meaning of the word ‘unreasonable’.  Lawyers familiar with the phraseology commonly used in relation to the exercise of statutory discretions often use the word ‘unreasonable’ in a rather comprehensive sense.  It is frequently used as a general description of the things that must not be done.  For instance, a person entrusted with a discretion must direct himself properly in law ... you may have something so absurd that no sensible person could ever dream that it lay within the powers of the authority …That is unreasonable in one sense.  Theoretically it is true to say - and in practice it may operate in some cases - that if a decision on a competent matter is so unreasonable that no authority could ever have come to it, then the courts can interfere.  That I think is right, but that would require overwhelming proof, and in this case the facts do not come anywhere near such a thing.”

The question therefore is whether the decision of the 1st respondent was so absurd, that a sensible administrative body or tribunal wouldn’t make such a decision.Having read through the submissions of counsel and the decision of the 1st respondent, I find that the 1st respondent did not make an absurd conclusion that would warrant the intervention of this court. There is no evidence placed before the court by the applicants to show that the decision of the 1st respondent is unreasonable in the Wednesbury sense.[emphasis added].

86. It was submitted that in the present case the 2nd Respondent Board made a finding that the contract that the ex-parte applicant was proposing to compel the procuring entity to enter into had a varied scope of works outside the law and refused to compel the procuring entity on that ground, and therefore the question that would beg answers would be that such a grossly unreasonable rationale that would merit a quashing of the same. The 2nd respondent submitted that, that cannot possibly be the case.

87. It was further submitted that the mandate and responsibility of the 2nd Respondent has been recognized by several decisions including the case of Olive Telecommunications case(supra) where it was held as follows;-

‘…It is with this in view that the processes relating to the procurement of such materials and equipment ought to strictly comply with the provisions of Article 227 of the Constitution which provides:

When a State organ or any other public entity contracts for goods or services, it shall do so in accordance with a system that is fair, equitable, transparent, competitive and cost-effective.

95. For the purposes of achieving the Constitutional objective Parliament enacted the Public Procurement and Disposals Act (hereinafter referred to as the Act) which in view of Nyamu, J (as he then was) in Republic vs. Public Procurement Administrative Review Board & Another Ex Parte Selex Sistemi Integrati Nairobi HCMA No. 1260 of 2007 [2008] KLR 728:

“…to maximize economy and efficiency as well as to increase public confidence in those procedures…..The intention of efficiency is noble and must be appreciated if the development agenda is to be achieved...The said Act also has other objectives namely to promote the integrity and fairness of the procurement procedures and to increase transparency and accountability. Fairness, transparency and accountability are core values of a modern society like Kenya. They are equally important and may not be sacrificed at the altar of finality. The Court must look into each and every case and its circumstances and balance the public interest with ….

…….On the issue of the jurisdiction of the Board, we wish to deal with the statutory jurisdiction of the Respondent Board.  In our view, the Board did not determine or base its decision on extraneous matters as claimed.  There is also no doubt the Respondent has jurisdiction to conduct an administrative review of procurement proceedings upon a Request for Review filed under Section 93 of the Act.

Under Section 98 of the Act, the Respondent has power to:-

a. annul anything the procuring entity has done in the procurement proceedings, including annulling the procurement proceedings in their entirety;

b. give directions to the procuring entity with respect to anything to be done or redone in the procurement proceedings;

c. substitute the decision of the Review Board for any decision of the procuring entity in the procurement proceedings; and

d. order the payment of costs as between parties to the review.

We must emphasize that it is not every “wrong” decision that an inferior tribunal makes that renders it amenable to judicial review as opposed to an appeal.  Whereas, it may be true that had this Court been hearing the request for review it might have arrived at a different decision,  the various arguments advanced by the parties herein with regard to the unreasonableness and irrationality of the decision amount to inviting the Court to undertake a merit review or appeal on the decision of the Board.  In line with the approach we have taken, the Court would, in such instance, be usurping the statutory function of the Board because it will be forced eventually, if it sustains the arguments, to supplant its own view in place of that of the Board. Our view is reinforced by the decision of the Court of Appeal in Kenya Pipeline Company Limited vs. Hyosung Ebara Company Limited & 2 Others [2012] eKLR where the Court expressed itself as follows:

“The Review Board is a specialized statutory tribunal established to deal with all complaints of breach of duty by the procuring entity. By Reg. 89, it has power to engage an expert to assist in the proceedings in which it feels that it lacks the necessary experience. S. 98 of the Act confers very wide powers on the Review Board. It is clear from the nature of powers given to the Review Board including annulling, anything done by the procurement entity and substituting its decision for that of the procuring entity that the administrative review envisaged by the Act is indeed an appeal. From its nature the Review Board is obviously better equipped than the High Court to handle disputes relating to breach of duty by procurement entity. It follows that its decision in matters within its jurisdiction should not be lightly interfered with.  Having regard to the wide powers of the Review Board we are satisfied that the High Court erred in holding that the Review Board was not competent to decide whether or not the 1st Respondent’s tender had met the mandatory conditions.  The issue whether or not the 1st Respondent’s tender was rightly rejected as unresponsive was directly before the Review Board and the Board had jurisdiction to deal with it. In conclusion, it is manifest that the application for Judicial Review was not well founded. The 1st Respondent did not establish that the Review Board had acted without jurisdiction or in excess of jurisdiction or in breach of rules of natural justice or that the decision was irrational.

The Judicial Review was not confined to the decision making process but rather with the correctness of the decision on matters of both law and fact.  So long as the proceedings of the Review Board were regular and it had jurisdiction to adjudicate upon the matters raised in the Request for Review, it was as much entitled to decide those matters wrongly as it was to decide them rightly.  The High Court erred in essence in treating the judicial review application as an appeal and in granting judicial review orders on the grounds which were outside the scope of Judicial Review jurisdiction.”

We also reproduce the decision of Odunga, J in Republic V Business Premises Rent Tribunal & 3 Others Ex-Parte Christine Wangari Gachege [2014] eKLR where it was held that:

“…In this case it is not in doubt that the decision which is being challenged in these proceedings was the subject of an application for setting aside which decision was disallowed by the Respondent. Whether that decision was right or not the Applicant ought to have appealed against the same instead of challenging the decision in respect of which attempt to set aside had failed. In judicial review proceedings the mere fact that the Tribunal’s decision was based on insufficient evidence, or misconstruing of the evidence which is what the applicant seems to be raising here or that in the course of the proceedings the Tribunal committed an error are not grounds for granting judicial review remedies. In reaching its determination, it must however, be recognized that a Tribunal or statutory body or authority has jurisdiction to err and the mere fact that in the course of its inquiry it errs on the merits is not a ground for quashing the decision by way of judicial review as opposed to an appeal. It is only an appellate Tribunal which is empowered and in fact enjoined in cases of the first appeal to re-evaluate the evidence presented at the first instance and arrive at its own decision on facts of course taking into account that it had no advantage of seeing the witnesses and hearing them testify.  Whereas a decision may properly be overturned on an appeal it does not necessarily qualify as a candidate for judicial review. In East African Railways Corporation VS.Anthony Sefu, DAR-ES-SALAAM HCCA NO. 19 OF 1971 [1973] EA 327, it was held:

“It has been recognized for a long time past, that courts are empowered to look into the question whether the tribunal in question has not stepped outside the field of operation entrusted to it. The court may declare a tribunal’s decision a nullity if (i) the tribunal did not follow the procedure laid down by a statute on arriving at a decision; (ii) breach of the principles of natural justice; (iii) if the actions were not done in good faith. Otherwise if none of these errors have been committed, the court cannot substitute its judgment for that of an authority, which has exercised a discretionary power, as the tribunal is entitled to decide a question wrongly as to decide it rightly..... And so have the courts repeatedly held that they have an inherent jurisdiction to supervise the working of inferior Courts or tribunals so that they may not act in excess of jurisdiction or without jurisdiction or contrary to law. But this admitted power of the Superior Court’s to supervise inferior Courts or tribunals is necessarily delimited and its jurisdiction is to see that the inferior court has not exceeded its own, and for that very reason it is bound not to interfere in what has been done within that jurisdiction, for in so doing it would, itself, in turn transgress the limits within which its own jurisdiction of supervision, not of review, is confined. That supervision goes to two points: one is the area of the inferior jurisdiction and the qualifications and conditions of its exercise; the other is the observance of the law in the course of its exercise...... Even if it were alleged that the Commission or authorized officer misconstrued the provision of the law or regulation, that would still not have entitled the court to question the decision reached. If a magistrate or other tribunal has jurisdiction to enter on the enquiry and to decide a particular issue, and there is irregularity in the procedure, he does not destroy his jurisdiction to go wrong. If he has jurisdiction to go right he has jurisdiction to go wrong. Neither an error in fact nor an error in law will destroy his jurisdiction.......Where the proceedings are regular upon their face and the inferior tribunal had jurisdiction, the superior Courts will not grant the order of certiorari on the ground that the inferior tribunal misconceived a point of law.When the inferior tribunal has jurisdiction to decide a matter, it cannot (merely because it incidentally misconstrues a statute, or admits illegal evidence, or rejects legal evidence, or convicts without evidence) be deemed to exceed or abuse its jurisdiction.”

In Jasbir Singh Rai & 3 Others vs. Tarlochan Singh Rai & 4 Others, Civil Application No. 307/2003, Omolo JA stated as follows;

“The courts expressly recognize that they are manned by human beings who are by nature fallible, and that a decision of a court may well be shown to be wrong either on the basis of existing law or on the basis of some newly discovered fact which, had it been available at the time the decision was made, might well have made the decision go the other way.”

88. The 2nd Respondent submitted that the essence of the ex-parte applicant’s motion is that had it been the 2nd respondent Board, it would have arrived at different conclusion, which was outside the scope of the jurisdiction of this court. The court was urged to decline the invitation to substitute its findings in lieu of the findings of the 2nd Respondent because in doing so the court will be usurping the very jurisdiction of the 2nd Respondent when this case is not an appeal.

89. It was further submitted that the issue of award of costs is purely a matter of discretion and the ex-parte applicant has not by way of evidence or cogent submissions exhibited sufficient or any grounds for this court to interfere with the 2nd Respondent’s reasonable exercise of discretion.

90. On the whole, the 2nd Respondent submitted that the ex-parte applicant had not made out a case for the issuance of the judicial review remedies sought against the 2nd Respondent and prayed that this Honorable Court exercises its jurisdiction to dismiss the application with costs.

91. In a brief rejoinder, Mr Ng’eno submitted on behalf of the exparte applicant that section 68 (3) of the Act is subject to the tender documents and that under section 69(2) of the Act, tender documents are a contract as they constitute a contract.

92. Further, that although section 36 of the Act allows termination of a tender process and that the court in the Selex Sistemi Integrati case defined what a process is and found that procurement proceedings end when the tender is awarded. Counsel maintained that termination of a tender cannot come after award notification and that therefore the Board was correct on that point. It was submitted that the court should not allow retendering if the project is obsolete otherwise the contract should be signed then negotiations can take off.

DETERMINATION

93. I have carefully considered the exparte applicant’s case and the opposition by the respondents together with the parties’ advocates’ written and oral submissions. In my humble view, the following issues flow for determination:

a. Whether the exparte applicant has made out a case to warrant grant of the orders sought:

b. What orders should this court make; and

c. Who should bear costs of these judicial review proceedings?

94. What is not in contention in this matter is that the exparte applicant successfully tendered for the subject award with the procuring entity and was awarded the tender as required by law.  However, the procuring entity after forwarding the contract document to the exparte applicant, cancelled the award of tender claiming that there had been change of scope of the work as originally intended. The Review Board nullified the cancellation of tender by the Procuring Entity but declined to compel the Procuring Entity to sign the contract.

95. What is in dispute is whether the Review Board could compel the procuring entity to sign a contract where it had found that following the change of scope of the works, it was superfluous to direct the procuring entity to sign the contract.

96. Before answering that question, the ancillary question is at what stage would the procuring entity change scope of works after the tendering process and whether notification of the award constitutes a contract and if so, when does such notification of award constitute a contract?

97. In making a determination in this matter, the court is conscious of the fact that there was and is only one judicial review applicant and that is the exparte applicant herein. It therefore follows that the 1st respondent’s issues for determination more particularly faulting the 2nd respondent’s decision in annulling the 1st respondent’s decision to nullify the award after notification would not form the basis of this determination for reasons that the 1st respondent is in effect sneaking into these proceedings its own cause of action yet it never filed any application or cross application to challenge the decision of the Review Board. Trial through the backdoor is not acceptable in law.

98. In other words, this court will confine itself to the question of whether the 2nd respondent had jurisdiction to compel the 1st respondent procuring entity to sign a contract with the exparte applicant having found that the procuring entity had erred in annulling the award after notification of the award to the successful bidder.

99. The  main reason why I refuse to entertain that issue  as  filed by  the 1st respondent is that Section 175 of the  Public  Procurement  and Asset Disposal Act 2015 is clear that any party who wishes  to challenge the decision of the Review Board by way of Judicial  Review  to the High Court  must  do so within 14 days  from the date of the decision  and  in default  the decision  of the Review Board  becomes  final and  binding.

100. In other words the jurisdiction of this court is  extinguished in so far as  a particular  Review Board’s  decision is concerned  upon  expiry of 14 days from the date of the decision where no application  for leave to institute  Judicial Review   proceedings  is lodged with the High Court, and therefore unless a  party fully  supports the  exparte  applicant’s  case or the interested party or respondents  position, they cannot urge  a fresh  complaint in the midst  of proceedings and   expect  this court to determine  that complaint  as the  1st respondent  has done  in those proceedings.

101. The 1st  respondent had the opportunity  to file and  obtain leave of court  to challenge  a part of  the decision  of the Review Board  which annulled  the  nullification of the award by the   Review Board which it  did not.  It cannot therefore be allowed to sneak in its grievances when the same issue is not being contested by the exparte applicant.

102. It would be mischievous for the 1st  respondent to challenge the decision of the Review Board  which decision  had not been formally brought before   this court for  purposes of  quashing  by claiming  that the Review Board   erred in annulling the nullification of the award by the 1st  respondent.

103. I would  accordingly decline  to consider  the  issue of  whether or not the  2nd  respondent  had the  jurisdiction to annul the  award after  notifying  the  exparte applicant  of the  award of the tender, as that would amount to usurpation  of jurisdiction by the court since no leave of court  was sought  and  obtained  to challenge  that aspect  of the decision by the Review Board.

104. Back to my main issues for  determination  is that there is no dispute that there is in existence a tender(award  notification) by the  1st  respondent to the  exparte applicant  successful bidder,  which award  was upheld  by the Review Board  in its impugned  decision.

105. However, even after upholding the award made by the 1st respondent, the Review Board declined to compel the 1st respondent to sign a contract with the exparte applicant and that is the substance of these Judicial Review proceedings.

106. The 1st respondent claims that  it  was  unable  to  sign a contract  with the exparte applicant after awarding it the tender and  notifying   it of the  award because  there  was  change of scope of the  project  as a result of which it has become necessary to retender the project.

107. The court notes that the contract  was already  with the exparte  applicant  when  the  notification award was annulled by the  1st respondent  procuring  entity, but the procuring entity  had not  yet signed the  contract which  the exparte applicant had on its part signed and before  returning it to the  1st respondent [PE] for  execution, the applicant  received a  notification to the effect that the award had been cancelled because  there  were  variations  on the scope of work of the project tendered.

108. According to the exparte applicant, variation of the scope of works is not a reason to nullify the award as parties are allowed to negotiate on the variations.  Further, that it  is not  necessary  to retender  the project hence it   was illegal  for the Review Board to rely on alleged  variations  to  decline to order  the  1st respondent  to sign the  contract with the  exparte  applicant.

110. The exparte  applicant  also claims  that the issue  of variation  of the scope of the project  was not an issue  raised by the applicant  before the Board   for  determination  hence the  Board’s decision  was illegal.

111. However, this court has perused the  Request for Review filed on 7th September, 2016 as shown by Annexture 6  and at page 5 of the Review Board’s decision and  found that the issue of variation of the scope of work was pleaded and considered by the Review Board substantively,  with the Board  quoting the  exparte applicant’s  submissions  on the issue  as was brought out in the 2nd respondent’s  written  submissions.

112. According  to the exparte  applicant, tender  documents  cannot be varied but that  the contract  can be varied  and  that therefore  the Review Board  failed to  carry out  its mandate  as per Section  98 of the Act  to direct  the  Procuring Entity to do that which it ought to have  done that  of signing  of the contract  and  engage  in negotiations of scope of work.

113. This court  notes quite  keenly that what the exparte  applicant  is seeking  in the first  prayer of the  notice of  motion, though couched  as certiorari  is for this court to direct  the Review Board  to compel the Procuring Entity  to sign the contract  with the  exparte  applicant. This  is so because  albeit  there  is a separate  prayer seeking  for mandamus to compel the Procuring Entity to sign the  contract  with the  exparte  applicant, certiorari in the  manner  in which it is couched  in prayer No. 1  of the Notice  of  Motion would  not lie because Certiorari cannot issue to compel performance of a duty.

114. I would  at this juncture  beg  to briefly venture  into the scope  of these  Judicial Review  remedies  so as to  establish/clarify  when each of  the remedies would lie, and  to demonstrate  to the parties  that a decision made refusing to compel or to direct  is a negative  decision of failure to act and which can  only be  countered  or reversed  by mandamus compelling  the  tribunal  to act or by way of a declaration  to declare the refusal illegal or a nullity and not by way of  Certiorari.

115. Furthermore, it is now established and settled law that Certiorari does not operate to compel and therefore it should not be framed in a manner that compels performance of a duty.  In the same manner, mandamus as a judicial review remedy has no quashing effect.

116. Certiorari is a two part remedy.  The first part is an order removing the official record of the impugned decision-maker into a superior court issuing the certiorari order. The second part is an order quashing the impugned decision, and the record thereof.  In other words, certiorari is used to wipe the slate clean. In the same vein, Prohibition cannot be issued to quash a decision which has been made. It can only prohibit or stop an impending decision or a decision which is in the process of being implemented.

In Halsburys Laws of England, 4th Edition para 89 page 111 it is stated:

“The order of mandamus is of the most extensive nature, and, is, in the form of a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly, it will issue, to the end that justice may be done, in all cases, where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual…the order must command no more than the party against whom the application is made is legally bound to perform.

When a general duty is imposed, a mandamus cannot require it to be done once. Where the duty is on the hands of the party whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way.”

117. In KNEC V R. Exparte Geoffrey Gathenji Njoroge &others, CA No. Nairobi 266of 1996 the Court of Appeal applied the above principles and stated”

“in other words, an order of mandamus will issue to compel the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has legal right to expect the duty to be performed.”

118. Prohibition on the other hand has a  largely negative  aspect of   prohibiting  the  impugned  decision maker  and  those  relying on the decision  from doing  something  illegal or irregular which  they are  about to do, or  from continuing  on an illegal  course of action already commenced. The main difference between certiorari and prohibition is in the timing of the application to the court.

119. Certiorari  lies for any  jurisdictional  error,  and  also for  non-jurisdictional errors  of law appearing  on the face of  the record.  Prohibition  on the other  hand lies only for  actual  or threatened   illegality or excess of power, but  is not  available  in respect of  the  non-jurisdictional error of  law on the face of the  record.

120. The reason  why the remedies  are so confined   was explained d by Hayne J in Re Refugee Review Tribunal Exparte Aala [2000]75  ALJR  52  paragraph  159. It is  also essential  to mention that the court has a discretion  to refuse to issue certiorari and prohibition even though a  substantive review  ground has been established, except  in some instances  where a vitiating  error is  manifest  or apparent  on the face of the record  and the applicant  for the remedy is the  person directly aggrieved and there is no other alternative  remedy.

121. Gibbs  CJ in Republic  vs. Ross Jones  exparte  Green  [1984] 156   CLR  185the learned  Chief Justice  stated as  adopted  in Re Refugee Review Tribunal Exparte Aala  (supra):

“ If  therefore, a clear case of  want of excess  of jurisdiction  has been made out, and the  prosecutor is a party  aggrieved, the  writ  will issue  almost  as of right although  the  court retain its  discretion to refuse  relief  if in all the circumstances  that  seems  the proper course.”

122. Mandamus on the other hand is a Judicial Review remedy compelling performance of a statutory duty. However, a private person can be compelled to bear a public duty as was held in Re O’ Rourke [1986] 7 NSWR 64.

123. In addition, unlike certiorari and prohibition, mandamus is generally not regarded as limited to cases where the respondent’s powers are either judicial or quasi-judicial.

124. In a decision which is  immune from  certiorari  or prohibition,  mandamus can issue  to compel performance  of  a public  duty or  exercise  power where, in the latter case, there is arbitrariness or no reason  why the power  cannot be exercised.

125. Mandamus consists of an order to do a positive act not to desist from doing something for which prohibition or injunction would be appropriate remedies and has no quashing effect and therefore a party who wishes to quash a decision can only seek certiorari or appeal against the decision.  Where a public body refuses or declines or fails to make a decision, that failure or refusal can only be rectified by a positive order commanding or compelling the concerned body to make a decision.  That refusal cannot be quashed by way of certiorari. In other words, if a tribunal refuses to rule one way or the other, the order of Mandamus can compel the tribunal to do that which it did not do.

126. In this case, the applicant has sought in the first prayer, certiorari to quash the  2nd  respondent’s  decision to  refuse to direct the  1st respondent  to sign a  contract;  and  mandamus  to compel the  1st respondent  Procuring Entity  to sign  a contract. This not being an appeal from the decision of the 1st respondent procuring entity, this court would not by pass the 2nd respondent Review Board and proceed to order the procuring entity to sign a contract, assuming that the 1st respondent was entitled to sign the contract in issue.

127. Certiorari cannot issue based merely because a decision is different from that which the reviewing court would reach.  The court will only intervene where the tribunal has acted in excess of its assigned jurisdiction or has acted unreasonably, with procedural impropriety or in breach of the principles of natural justice, or maliciously and or with the aim of giving an advantage to one of the parties.  Thus, the mere fact that the court could have concluded differently does not in itself entitle the court to intervene by way of certiorari.

128. Before the Review Board, the   exparte applicant herein sought for two main orders: annulment of the decision of the Procuring Entity to annul the award of tender No.  SU/QT/070N/15 supply, installation and commissioning of SCADA and Associated Systems, which order the Review Board granted in favour of the exparte applicant; and directing the Procuring Entity to sign the contract dated 15th July 2016 in accordance with the laws and the notification of the award, which prayer the Review Board declined to grant on account that there was change of scope of the project.  The applicant herein has not asked this court to compel the Review Board to direct procuring entity to sign the contract.

129. The other question that this court must pause to ask is whether the court can issue mandamus to compel execution of a contract, when the tender documents themselves are clear atClause 2:28:2 that :

“The notification of award will not constitute the formation of the contract but will have to wait until the contract is finally signed by both parties.”

130. Albeit the exparte applicant submitted that the procurement proceedings end when the tender is awarded and that therefore section 36 of the Act relied on by the 1st respondent in nullifying the award cannot apply, as was held in the Selex Sistemi Case, I beg to differ from that position and hold the view that from the wordings of section 36 of the repealed Act as read with sections, 67, 68 and 69 of the said repealed Act, procurement is a process which begins with an invitation to tender or request for proposals and ends with a contract duly executed by both the contracting parties-the successful bidder and the procuring entity. In addition, this court is not bound by the Selex Sistemidecision as a whole which is a decision of a court of concurrent jurisdiction.  Furthermore, the tender document at Clause 2:28:2 is clear that “the notification of award will not constitute the formation of the contract but will have to wait until the contract is finally signed by both parties.”

131. The Selex Sistemi case was not decided on the same facts and circumstances as this case. In the most cited case of Kenya National Examinations Council vs. Republic exparte Geoffrey Gathenji & 9 Others Nairobi CA 266/96 the Court of Appeal aptly summarized the purpose and reach of an order of mandamus as follows:

“ The  next issue  we  must deal  with  is  this: what is the scope  and  efficacy  of an order of mandamus?  Once again we turn to Halsburys Law of England 4th Edition VOL 1 at page 111 paragraph 89.  That learned   treatise says.

“ The  order of mandamus  is of a most  extensive remedial  nature and is, in form, a command issuing from the High Court  of justice directed to any person, corporation or inferior  tribunal  requiring  him or them to do some  particular  thing therein  specified  which  appertains  to his or their  office and  is in the nature  of a public duty.  Its  purpose is to remedy  the defects  of justice  and  accordingly it  will issue, to the end that  justice  may be done, in all cases  where there is a specific  legal right and  no specific legal remedy  to enforcing  that right; and it may issue in cases where, although there  is an  alternative legal remedy, yet that mode of redress is less convenient, beneficial  and  effectual.”

At paragraph 90 headed “the mandate” it is stated:

“ The order  must command  no more  than the party  against  whom  the application  is made is  legally  bound to perform.  Where a general duty is imposed, a mandamus cannot require it to be done at once.  Where a statute, which imposes a duty leaves  discretion as to the mode of performing  the  duty  in the hands of the party on whom the obligation is laid,  a mandamus cannot command the duty in question to be  carried  out in a  specific  way.”

What do these principles mean?

They mean that an order of mandamus will compel the   performance  of a public duty  which is  imposed  on a person or body  of persons by a statute  and  where that  person  or body  has   failed  to perform  the duty to  the detriment  of a party who has a legal  right to  expect the duty  to be  performed.”

132. Odunga  J in Republic v The Commissioner  of Lands  and  Another Exparte Kithinji Murugu M’Agere, Nairobi HC Miscellaneous  395/2012explored  circumstances  under which  an order of mandamus  can issue in the following  terms:

“The first issue is when can a court grant an order of mandamus and what is an order of mandamus?

In Shah V Attorney General No. 3 Kampala HCMC No. 31 of [1969] & [1970] EA 543it was held that:

“Mandamus is essentially English in its origin and development and it is therefore logical that the court should d look for an English definition. Mandamus is a prerogative order issued in certain cases to compel the performance of a duty. It issues from the Queen’s Bench Division of the English Court where the injured party has a right to have anything done, and has no other specific means of compelling its performance, especially when the obligation arises out of the official status of the respondent.This it is  used to  compel public officers to perform duties imposed upon them by  common law or by statute and  is  also applicable in certain  cases  when duty  is imposed by an Act of Parliament for the benefit of an individual. Mandamus is neither a write of course nor a  right , but  it  will be  granted if  the duty is in the nature  of  a public duty is  in the nature  of a public  duty and  especially  affects  the  rights of an individual provided  there is no more appropriate remedy.  The person  or authority  to whom it is  issued must  be wither under  a statutory  or legal  duty to do  or not to do  something; the duty itself  being of  an imperative  nature.”

It is an order sought under Sections  8 and 9  of the Law Reform Act, Cap  26  Laws of Kenya as  read with  Order  53  of the Civil Procedure Rules  by person or  body from the High Court  of Kenya requiring any act to be done. In other words, mandamus would issue from the alternative remedy, requesting that a statutory body etc be compelled to fulfill its statutory obligation.  So mandamus order can issue from the High Court commanding a body or person to do that which it is its or his duty to do.  It lies to secure that performance of a public   duty, in the performance of a public duty, in the performance of which the applicant has a sufficient legal interest. The issue of mandamus is discretionary and will only issue provided there is no other remedy available. See Tom Byakatonda o/b of Rushwa Growers Cooperative Society  vs. The Board of Directors Banyankole Kweterara Cooperative Union Mbarara HCMA No. 29/1995  & Wade & Phillips 9th Edition 607; Cephas Male vs KCC [1992] KLR 159.

It is important to note, however, that an order of mandamus is not an order of specific performance like in a contract situation.  A party in a judicial review seeking an order of mandamus must show the existence of a statutory duty conferred or invested by statute upon some person, body of persons or tribunal which such person, body of persons or tribunal has failed to perform.  See Republic vs Registrar  of  Societies  &  5 Others exparte Kenyatta & 6 Others Nairobi  HCMCA  No. 747  of 2006[2008] 3 KLR  (EP)  521.

Therefore mandamus is a peremptory order requiring the respondent to perform a specified   public duty.  It does not  lie for  breach of a private  obligation  even if  such  obligation is owed with other public  law duties to an  applicant  but whether  a duty is to  be enforced  by mandamus depends  on whether  the duty as  expressed  or implied  gives the  applicant  the  right to  complain. [Emphasis added]. Its purpose is to compel the performance of a public duty or any act contrary to or evasive by the law.  It does not lie against a public officer as a matter of course.  There are bars and limitation. Courts are reluctant to direct a writ of mandamus   against the executive officers of a government unless some specific act or thing which the law  requires to be done, has been omitted. Court proceed with extreme caution for the granting of the writ which would result in interference by the judicial department with the management of the government.  The conditions  for its  grant  are  that it must   be shown that the  public officer has failed to perform his duty; that the court  would not grant mandamus where there is an alternative  remedy  available to the  applicant;  and that it may be refused if the enforcement of the order will present problems like lack of  adequate  supervision.  (See Evanson Jidiraph Kamau & Another v The Attorney General Mombasa HC Miscellaneous Application No. 40/2000.

It has further been held that mandamus is first, employed to enforce the performance of a public duty, which is imperative, not optional, or discretionary, with the authority concerned.  Secondly, it is used to enforce the performance of public duties, by public authority, and not when it is under no duty under the law.  However, it would seem that mandamus may be  issued to perform a mandatory  duty which  may not  necessarily  be a statutory  duty, but which  has a “public element” which may  take any  forms,  and  fall  under the  classic formula of “anybody or  persons having legal authority  to determine  questions  affecting the rights of subjects” like non –statutory self-regulating  bodies.

Thirdly, mandamus may issue directing the concerned authority to act according to law.

Fourthly, there must be a legal right or substantial interest of the petitioner, the petitioner must satisfy the court that he has a legal right, the performance of which must be done by the public authority. It must, however, be noted that   by no means   closing avenues for the issue of mandamus against  an authority,  the  affected person, or persons, must have demanded justice,  which must be refused( see the Tanzania Court of Appeal decision in Ngurangwa & Others vs Registrar of the Industrial  Court of  Tanzania and  Others [1999] 2 EA  245………[emphasis added].

133. From the  above  detailed  and  well-reasoned  citations  which I fully  associate myself  with, it is clear that  mandamus  will issue  to compel  performance  of a statutory  duty owed  to an applicant and that  a public officer or  body  after being  asked to perform  the  duty, has refused or failed to  discharge  that duty, and  that  there is  no  other adequate  remedy. Mandamus is not a matter of course and the court may refuse to order mandamus to compel execution of a contract between parties.

134. It therefore follows that in matters requiring or involving exercise of judgment and discretion, the public officer or public body can only be directed to take necessary action, not directed in the manner or the particular way the discretion is to be exercised. In the instant case, the procuring entity is sought to be compelled  to sign  a contract  for the  awarded tender which  tender it had purported  to nullify  before signing  of the contract  on account that the scope of works  anticipated had  varied  substantially and  that it was now much cheaper to undertake the project with the  stipulated variations.

135. The procuring entity takes umbrage in Section 36 of the Public Procurement and Asset Disposal Act (repealed) which stipulates that:

“A procuring entity may, at any time, terminate procurement proceedings without entering into a contract.”[Emphasis added].

136. According  to Halsburys Laws of England VOL 9  paragraph  261, where an agreement  was reached  subject to  a contract, no contract could be  said to have  been concluded  and it  would  indeed  be impossible for the court to supervise an intended  contract  where  a statute  does not  obligate  the  signing  of the contract upon the  notification of the tender. [Emphasis added].

137. In this case, section 36 of the repealed Act clearly stipulated that a PE could at any time of the procurement proceedings without entering into a contract. If that  were not the case, Section 36 of the Act would have provided that  a Procuring Entity  may only  at a particular or specific time, not at any  time, terminate  procurement  proceedings  without  entering  into a contract.

138. In Republic Vs. National Social Security Fund Board of Trustees exparte Spur Security Services Limited[2015]eKLR, it was stated that:

“Section 36 of the Act provides as follows…..it is clear that the above provision does not require that the notification of the termination of the tender precedes the termination itself. What the section requires is that each person who submitted a tender, proposal or quotation be notified of the termination thereof and on request by such a person furnish the reasons therefore. However, it is expressly stated that in the event of such termination the procuring entity should not be liable thereof. It is therefore clear that the applicant cannot  question the decision by the respondent to terminate the tender….that  the respondent is empowered by the Act to terminate the tender at any time without entering into a contract is not in doubt.”[emphasis added].

139. In my humble view, in the absence of a contract  duly  executed  by both parties, with  specific terms, mandamus  cannot issue to compel  the signing of  a contract  between  parties, especially   where the terms  of the contract  are not fully agreed  upon  by both  parties.

140. It is for the above  reasons  that the court in John  Peter Mureithi  v The Attorney General Nairobi HC Miscellaneous 158/2005held that where a statute which imposes a duty leaves  discretion  to the mode of  performing  of that duty, an order  of  mandamus cannot command the duty in question to be performed in a specific  way.

141. In addition, there can be no legitimate expectation where like in this case, the tender in issue was subject to signing or execution of a contract by both parties. The statute does not say that once one party signs the contract then the contract becomes binding on the other party who has not signed the contract. In this regard, I have read the letter dated 31st March, 2015 written by Standard Chartered Bank addressed to the Procuring Entity herein the 1st respondent  which is the Bank Guarantee for Kshs 200,0000 setting out the conditions of the guarantee which include:

“...3. 1 if the bidder withdraws its bid during the period of validity specified by the Bidder on the   Bid Form, or

3. 2 if the Bidder, having been notified of the acceptance of its Bid by the purchaser during the period of the Bid validity:

3. 2.1 fails or refuses to  execute the contract form, if required, or

3. 2.2 fails or refuses to furnish the performance security, in accordance with the instructions to bidders…”

142. In my humble view, the above clause contemplates a situation where the exparte applicant being the bidder may withdraw its bid or may refuse or fail to sign a contract if required to do so. That being the case, it cannot be true that the exparte applicant had an irreversible obligation to sign the contract with the procuring entity since it was foreseeable that the exparte applicant could refuse to sign the contract if required to do so, even after the award.

143. In my view, if the  Public Procurement and  Asset Disposal Act  had intended the notification of award  of the tender  to the applicant and signing of the contract on the part of one party alone to constitute a contract, nothing  would  have prevented  Parliament  from saying  so.  Force, or compulsion to sign  a contract cannot be used to  achieve   the  intended objective of the tender  especially  where  clauses in the tender documents are also clear  that the  notification of the  award of the tender did not constitute a contract and in the said   notification of award, it  was  explicit  that  such notification did not constitute a contract.  (See Councilof Civil Service Union vs. Minister of Civil Service [1995] A.C. 374.

144. Section  36(3)  of the repealed Act  stipulates that  the  applicant  can  seek detailed  reasons why the  tender  was cancelled  after an award notification.This section contemplates that a tender that has been awarded can be cancelled, only that detailed reasons must be given where they are sought and in this case I have no hesitation in finding and holding that reasons for cancellation of the awarded tender were given to the exparte applicant, who has not demonstrated that it sought for detailed or further reasons and was denied.  And therefore in my view, it is not logical as suggested by the exparte applicant that the Procuring Entity be compelled to sign the contract then engage the applicant in negotiations on the varied scope of works. Once a contract is  signed  on terms which a party knows  very  well  that the party is not  able to perform, it does sign the contract at  its  own risk  as it cannot compel the other party to negotiate to vary the terms of the contract and this would attract damages.

145. In a persuasive decision Jagdish  Mandal vs. State of Orissa Appeal (Civil) 5699 of 2006 the High Court in India stated thus and I concur that:

“Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and malafides. Its purpose is to check whether choice or decision is ‘sound.’ When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be [permitted to be invoked to protect private interests at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuaded courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succor to thousands and millions and may increase the project cost manifold. Therefore, a court before interfering in tender or contractual matters in exercise of power of  judicial review, should pose to itself the following questions: i) whether the process adopted  or decision made by the authority is malafides or intended to favour someone or ii) whether the process adopted or decision made is so arbitrary and irrational that the court can say: ‘the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached.” power

146. Iam also in agreement with the court’s finding in Republic Vs. National Housing Corporation Exparte Ernie Campbell & Company Limited , JR case No. 48 of 2016that:

“Upon review of section 36 of the Act, I find myself in agreement with Odunga J, that it is only after a contract is entered into that the power of a procuring entity to terminate procurement proceedings is taken away.

Section 36(1) clearly stipulates that a procuring entity may terminate procurement proceedings without entering into a contract. The section does not state that a procuring entity may terminate procurement proceedings before the award of the tender to the successful bidder. The ward of tender is a separate and distinct event from the signing of a contract hence the existence of section 67 which provides for notification of acceptance of tender and section 68 which provides for creation of a contract. The term “contract” as used in section 36(1) must have the same meaning when used in section 68. With respect to Nyamu J (as he then was), public procurement proceedings are concluded at the point when a contract is entered into between the procuring entity and the successful bidder. The award of the tender cannot be equated to signing of a contract. In some situations, the parties will have to enter into negotiations before a contract is signed. Indeed section 69 envisages a situation where the successful tenderer can refuse to sign a contract.”

147. It should  be noted that  the  Review Board already  exercised its discretion  to nullify the nullification  of the tender by the procuring entity but  declined  to  direct the Procuring Entity to sign a contract  with the exparte  applicant  on account  of the alleged variation to the  scope  of work.  That being the case, to issue mandamus as sought, against the Procuring Entity would be   to bypass the Review Board.

148. Although the applicant claims that the issue of variation of scope of work was a new matter, that issue was not new at all. In the affidavit sworn by Gerald Too on 7th September, 2016 in support of its request for review before the Board, the exparte applicant deposed thus: “On 24th August 2016, the applicant received correspondence from the respondent informing it that the respondent had nullified the award pursuant to section 36 of the Public Procurement and Disposal Act, 2005 due to a change in scope of the project.”

149. There was also sufficient contention by the Respondent before the review Board by way of a preliminary objection to the effect that the nullification of the tender was due to the change of scope of the tender. The 1st respondent also annexed minutes of the Tender Committee meeting held on 24th august, 2016 where the decision was made to terminate the notification of award under section 36 of the Act so as to pave way for a retender of the project in accordance with the revised scope.

150. This court has not been asked to compel the review Board to direct the Procuring Entity to sign the contract based on the notification of award. Instead, the court is being asked to quash the decision of the Review Board “refusing to direct the PE to sign the contract with the successful bidder”; and to “compel the Procuring Entity to sign the contract.”

151. The power to direct signing of the contract by the PE lay in the Review Board. The Review Board exercised its discretion and declined to direct the procuring entity (PE) to sign the contract on account that there was change of scope of works of the tendered project. Even if this court was to quash that refusal by the Board, the court has not been asked to compel the Review Board to direct the P.E to sign the contract. This court is thus being asked to by-pass the Review Board and proceed to compel performance of the contract by the PE.

152. For that reason, I find that the issuance of an order of mandamus directed at the Procuring Entity would not lie. The exparte  applicant  has not  demonstrated  that any rights  had crystallized to it by the notification of the award by the  Procuring  Entity  and even if  such right  had crystallized, this  court would  not compel  execution of a contract  whose scope is said to have changed, which position  is distinguishable  from the case of  Renco- EA Ltd  & 2 Others  vs. Kenya Electricity Generating Company (KENGEN) Review case No. 14/2016  where the  Board compelled the Procuring Entity to complete the procurement process by directing it to enter  into a contract with a bidder under the provisions  of Section  68  of the Repealed Act, on account that  the Procuring Entity had flagrantly terminated the tender without  any  basis  and  that there  was no change  of scope  or change  of circumstances  from the date  of award  of the tender  to the date of the request for review challenging the termination of the award.

153. This court observes that the Board in refusing to compel  signing of the  contract  took into account the  change of circumstances surrounding the tender  between the  date of the  award  and the date  when the  review  was filed  before it  pursuant to the termination  and concluded  that directing  the signing  of  the contract would be acting in vain or giving orders that  are simply  unenforceable.

154. Although the exparte applicant claims that the Review Board made a determination based on reviewed scope which amounted to variation of tender documents and which amounts to sanctioning of an illegality on the part of the procuring entity, this court finds that there was no evidence of the tender documents being changed or altered. The subject tender, it was observed, involved supply, installation and commissioning of a system called SCADA, for use in the Mombasa-Nairobi Pipeline  which was under construction and that it was realized that the said system as tendered would no longer be used  in the said pipeline project hence the need to retender to accord with the changed circumstances. In my view, the Review Board cannot be faulted in its decision as it could not be expected to make orders in vain.

155. As  I have  stated above, albeit  the applicant  claims that the  Review Board relied on confidential  documents  which  were not availed  to the applicant,  the record  does not  show that the  applicant  requested  for those documents  but  was  denied  access. In addition, the exparte applicant never raised any objection to the procuring entity relying on those confidential documents which are not even described.

156. This court also finds that the allegation that the  Board  admitted   a replying affidavit  the  morning of   the hearing  of the  request  for review  which admission  was prejudicial is a  matter that  the applicant  should  have raised  with the Review  Board  and or it should have sought time to peruse  and  file  a response  thereto  if need be.  There is no evidence on record to demonstrate that the applicant sought leave to file a further affidavit but that it was denied the opportunity to do so. In the end, I find that there was no prejudice occasioned to the applicant by admission of a replying affidavit at the hearing date as the exparte applicant never sought for time to respond to the replying affidavit and was denied the opportunity to do so.

157. In the end, I find that the entire allegation by the exparte applicant that the Review Board took into account matters which were not before it for determination and which were not canvassed before it in arriving at its impugned decision has no merit.

158. On whether  the  court should  prohibit the Procuring  Entity  from retendering  the  project, on the material  available, as the   tender is  incapable of performance owing to  the changed  scope of work of the project which, on the face of it is not a simple project, it would  be futile to prohibit the Procuring Entity  from  retendering  for the project which is necessary for its operations under the changed scope of works.

159. What  the exparte  applicant  can do is that since  it  was  not disqualified  during the  tendering  process, any loss  that may have been suffered although  no such  loss  was   demonstrated or quantified  by way of affidavit,  can be  remedied  by a claim for  damages. On the other hand, nothing prevents the exparte applicant from participating in the intended fresh tendering process.

160. This court acknowledges and appreciates that public procurement of public goods and services has a constitutional significance as espoused in Article 227 of the Constitution.  That  significance  is  borne  out of the  realization that huge amounts  of public  resources  are spent  in procuring  of goods  and services and since it has not been  demonstrated  that the retendering  process would be illegal  or what aspect  of that intended retendering would be illegal, especially where there is no allegation of corruption  or abuse  of power, it would not be in the public interest and public good to compel the signing of a contract whose scope the procuring entity asserts has changed,  not because the procuring entity wishes to disadvantage the applicant, but for reduction of costs in that the original design as anticipated would not work. Consequently, this court cannot compel the procuring entity to do that which it does not require in view of the redesigned works.

161. Furthermore, and as earlier stated, the circumstances of this case, where the applicant  never sought  for mandamus to compel the Review Board to direct the Procuring Entity  to sign a contract  are such that effectually, the  Procuring Entity  is under no duty  to sign any contract and to compel  it to sign the contract  would be  to bypass  the  Review Board thereby  usurping  powers of the Review Board  which had  exercised  its discretion  not to direct  the Procuring Entity into signing  the contract. It therefore follows that this court cannot prohibit a retendering process since there is no contract capable of being specifically performed by the parties, and neither can this court compel the Procuring Entity to sign a contract whose scope has changed.

162. Section 36(5) of the Act stipulates that the Procuring Entity shall not be liable to any person for a termination under the Section.It follows therefore that  to order the  signing of the  contract is to violate  the provisions of Sections  36(5), 68  and  70 of the Act which stipulate that a contract  would be  entered  into based on tender documents  and that no contract would  be declared  until a written  contract is  entered into.  The above provisions postulate that if there be any negotiations then it should be before a contract is entered into and not after.

163. Furthermore, Section 70 of the Act is  clear that the Procuring Entity  shall not  request  or require as a condition of awarding  a  contract  that a person  who submitted  a tender undertakes  responsibilities  not set  out in the  tender documents. In other words, it would not be   legitimate  to sign a  contract and then demand that the  successful  bidder  performs  the contract on the basis of  the  varied scope of work which scope did not  form part of the specifications in the tender  documents.

164. If the exparte applicant herein wanted the court to compel  the Review Board to exercise  its discretion under Section  98  of the Act, it  should have  said  so instead of  following  a short cut  which in the  view  of this court  is a wrong  cut.

165. Albeit  the exparte   applicant claimed  that Section  69 of the Act is  subject  to the tender  documents, tender  documents cannot   be superior  to statutory  provisions  and where there is  any conflict between the tender documents and statutory  provisions, the statutory provisions must override the tender documents.

166. Iam in agreement with the ratio  in Republic vs. Principal Secretary, Ministry of Health and Another Exparte Apex  Communications Ltd HC Miscellaneous Application 162/2014  that “to investigate the  issue of the changed or variation of scope of the project  for which  the tender  was  advertised  with a view  to arriving  at a different  conclusion  would amount to usurping the  powers  of the  1st respondent.”[emphasis added].

167. The  exparte  applicant  also generalized  its  complaint that the Review  Board  allowed  documents  to be filed  out of  time without  stating which documents and therefore this court would not be inclined  to probe into generalized  assertions.

168. For all the above reasons, I find and hold that the exparte applicant has not persuaded this court that it is entitled to any of the judicial review remedies sought. Accordingly, the notice of motion as filed and dated1st November, 2016 is hereby dismissed.

169. On costs, I note that the applicant and the respondents raised important issues for ventilation. For that reason, I find that the Judicial Review application as a whole was not frivolous and neither was it an abuse of court process.  I therefore order that each party shall bear their own costs of these Judicial Review proceedings.

Dated, signed and delivered at Nairobi this 10th day of October, 2017.

R.E ABURILI

JUDGE

In the presence of:

Mr Oyoo h/b for Mr Ng’eno for the Exparte Applicant

Miss Nyaga for the 1st Respondent

Miss Daido h/b for Mr Bitta for the 2nd Respondent

CA: George