[2013] KEHC 6206 (KLR)
The court found that the conservatory orders restraining the execution of the sunscreen procurement contract should be discharged because the Public Procurement Administrative Review Board had already rendered a decision upholding the procurement process, and the statutory time for appeal under the Public...
Source-derived case information.
- Citation
- [2013] KEHC 6206 (KLR)
- Parties
- Applicant: Albinism Society of Kenya; Respondent: National Council for Persons with Disabilities; Respondent: The Attorney General; Respondent: Suken International Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 341 of 2013
- Procedural Posture
- Constitutional Petition / Ruling on Application to Extend Conservatory Orders
- Outcome
- conservatory orders discharged; matter to proceed for further directions
- Legal Topics
- Public Procurement, Conservatory Orders, Disability Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Albinism Society of Kenya
Applicant
National Council for Persons with Disabilities
Respondent
The Attorney General
Respondent
Suken International Limited
Respondent
Procedural Posture
Constitutional Petition / Ruling on Application to Extend Conservatory Orders
Legal Issues
- 1 Whether the conservatory orders restraining the execution of the procurement contract for sunscreen should be extended or discharged.
- 2 Whether the procurement process for sunscreen for persons with albinism was conducted in accordance with the law.
- 3 Whether the lapse of time for appeal under the Public Procurement and Disposal Act affects the validity of the challenge.
Ratio Decidendi
The court found that the conservatory orders restraining the execution of the sunscreen procurement contract should be discharged because the Public Procurement Administrative Review Board had already rendered a decision upholding the procurement process, and the statutory time for appeal under the Public Procurement and Disposal Act had lapsed. The court further held that it was in the interests of the petitioners and the intended beneficiaries—persons living with albinism—that the procurement proceed, as the continued restraint would be injurious to them. The court also noted that other issues raised by the petitioners, such as the census of persons living with albinism, could be...
Court Disposition
conservatory orders discharged; matter to proceed for further directions
Orders
- The conservatory orders issued on 2nd July 2013 are hereby discharged.
- The matter shall be mentioned on 10th July 2013 for further orders or directions.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 341 OF 2013
BETWEEN
ALBINISM SOCIETY OF KENYA .............................. PETITIONER
AND
NATIONAL COUNCIL FOR
PERSONS WITH DISABILITIES ....................... 1ST RESPONDENT
THE ATTORNEY GENERAL ............................. 2ND RESPONDENT
SUKEN INTERNATIONAL LIMITED .............. 3RD RESPONDENT
RULING
The petitioners have moved the court by a petition dated 2nd July 2011 which seeks certain declarations concerning the procurement of sunscreen by the 1st respondent for the benefit of persons living with albinism.
The 2nd respondent published a tender for supply of sunscreen and the tender was duly awarded to the 2nd respondent, Sunken International Limited. The tender No. NCPWD/01/2013-13 was challenged before the Public Procurement Review Board (“the Board”) by Review No. 17/2013 and on 27th May 2013, the Board dismissed the Review.
When the petitioners moved the court by petition on 2nd July 2013, Justice Korir granted a conservatory order restraining the respondent from carrying on with the transaction of execution of the tender awarded to the 3rd respondent by the 1st respondent vide contract reference No. NCPWD/01/2012-2013 on or around 13th day of June 2013 for supply of Sunscreen Lotions with sunscreen protection to persons with disabilities pending inter-parties hearing.
When the matter came up today, the respondents opposed the extension of the conservatory orders, inter alia, on the ground that the orders were injurious to parties with disability and that the procurement had been done in accordance with the law.
In view of the decision by the Public Procurement Administrative Review Board dated 27th May 2013 and section 100 of the Public Procurement and Disposal Act, 2005the conservatory order ought to be discharged. I note from the decision that the time for appeal under the Act had lapsed when the appeal to the Board was filed.
Furthermore, I think it is the interests of the petitioners that the sunscreen products be procured for the benefit of person living with albinism.
The other issue raised by the petitioners concerns the census of persons living with albinism and related issues. These issues can be dealt with by the court and the court will grant relief where necessary.
The conservatory orders issued on 2nd July 2013 be and are hereby discharged. This matter shall be mentioned on 10th July 2013 for further orders/directions. Notice to issue.
DATED and DELIVERED at NAIROBI this 8th July 2013
D.S. MAJANJA
JUDGE