https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9144

Gritmax Logistics Ltd v Public Procurement Administrative Review Board & 3 others (Judicial Review E149 of 2026) [2026] KEHC 9144 (KLR) (Judicial Review) (26 June 2026) (Judgment) Neutral citation: [2026] KEHC 9144 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Judicial Review Judicial Review E149 of 2026 WM Musyoka, J June 26, 2026 Between Gritmax Logistics Limited Applicant and Public Procurement Administrative Review Board 1st Respondent The Accounting Officer, Kenya Pipeline Company Plc 2nd Respondent Kenya Pipeline Company Plc 3rd Respondent Miliki Development Company Limited 4th Respondent Judgment 1.The Originating Motion herein, dated 15th May 2026, seeks 5 declaratory, 2 certiorari and 2 mandamus orders, and an order for the remitting of the matter for re-hearing, with respect to a Tender No. KPC/PU/OT-200/KPRL/NBI/25-26 for Concrete Paving of KPRL Port Reitz Tanks Farms Phase 1 – RFX 2500001135. 2.The declarations sought are with respect to the proceedings that the 1st respondent conducted in PPARB No. 54 of 2026. One seeks that the decision of the 1st respondent, to decline jurisdiction and to strike out the request for review, was unconstitutional and unlawful; the other seeks that jurisdiction of the 1st respondent crystalises once the procurement process is initiated and cannot be retrospectively defeated by subsequent privatisation or change of status of the procuring entity; the third and the fourth seek that a legitimate expectation was created once the applicant was notified to challenge the procurement decision within a specified period of time; and the fifth is on the direction that the applicant had placed improper reliance on confidential documents. 3.The certiorari orders seek the quashing of the decision of the 1st respondent, in PPARB No. 54 of 2026, and the notification of the award of tender by the 2nd and 3rd respondents, in respect of the tender in Tender No. KPC/PU/OT-200/KPRL/NBI/25-26 for Concrete Paving of KPRL Port Reitz Tanks Farms Phase 1 – RFX 2500001135. The mandamus orders are to compel the 2nd and 3rd respondents to re-admit the tender by the applicant, and to award it to the applicant. There is the alternative prayer that the cause, in PPARB No. 54 of 2026, be remitted back to the 1st respondent, for fresh determination. 4.The grounds, upon which the Originating Motion is premised, are set out on the face of the application. It is averred that the applicant had participated in the tender, Tender No. KPC/PU/OT-200/KPRL/NBI/25-26 for Concrete Paving of KPRL Port Reitz Tanks Farms Phase 1 – RFX 2500001135, which had been floated by the 3rd respondent. It is argued that the same was done at a time when the 2nd respondent was a public entity, within the meaning of the Public Procurement and Asset Disposal Act, Cap 412C, Laws of Kenya, and was constitutionally bound by the constitutional and statutory procurement framework governing public procurement in Kenya. 5.It is further averred that the applicant had submitted a fully compliant tender, but was subsequently notified, by a letter dated 2nd April 2026, that the bid was unsuccessful, on grounds that it had omitted provisions relating to joint sealing of concrete slabs, setting of final levels and benchmarking of setting out procedures. It is contended that these reasons were unsupported by the tender documents submitted, which demonstrated flawed process of evaluation, contrary to the provisions of the Public Procurement and Asset Disposal Act. It is contended that the applicant had submitted the lowest tender, but the tender was awarded to the 4th respondent, who had submitted a higher tender, violating the principles of Article 227 of the Constitution. 6.Being unhappy with the notification, the applicant challenged the decision, at the 1st respondent, in PPARB No. 54 of 2026, grounded on illegality, procedural impropriety, irrationality, unlawful evaluation criteria, constitutional violations and breach of mandatory statutory provisions. While its request for review was pending, the 3rd respondent underwent privatisation, and raised an objection that that development meant that it had no jurisdiction over the review pending, a position which the 1st respondent agreed with, in its decision of 6th May 2026, whereupon it struck out the review. 7.It is argued that the 1st respondent had fundamentally misdirected itself on the law, it failed to appreciate jurisdiction, it improperly sanctioned retrospective application of the privatised status of the 2nd respondent, among other reasons and grounds. 8.The factual background, to the instant application, is set out in the supporting affidavit, sworn on 15th May 2026, by Mr. Bernard Muli Kaloki, a director of the applicant. The averments, in the affidavit, are largely regurgitations of the statements made in the grounds on the face of the originating motion. 9.Several documents are attached, being copies of the tender documents; form of the tender, a bill of quantities; an addendum, extending the submission deadline for the bid; a work programme; a certificate of incorporation of the applicant; a copy of the national identity card for the deponent of the affidavit in support, and the principal person in the applicant; certificate of registration of the applicant as a construction firm; business permits or licences issued by the relevant county government; Kenya Revenue Authority tax compliance certificates; bid bond; site visit certificate; documents relating to tools and equipment owned by the applicant; documents relating to work experience of the applicant; audited accounts of the applicant; the request for review, filed in PPARB No. 54 of 2026; and the determination in PPARB No. 54 of 2026. 10.The matter was placed before me, on 18th May 2026, under certificate of urgency, and I gave directions, relating to service, and filing of responses, and written submissions. It would appear that service was effected, for I see an affidavit of service, evidencing service upon the respondents. 11.There is a response to the application, by the 2nd and 3rd respondents, vide an affidavit, sworn on 2nd June 2026, by Mr. Nyaduwa N. Odongo, one of its officers. It is averred that the applicant is inviting the court to address procurement issues that were not determined by the 1st respondent, for once the 1st respondent resolved that it had no jurisdiction, it downed its tools, and did not dwell on issues around responsiveness of bids, evaluation criteria and award of the tender. It is asserted that the decision, of 6th May 2026, merely declared lack of jurisdiction, and declined to determine the request for review on its merits. It is argued that that is the only issue that this court can interrogate. 12.Parties filed written submissions, to canvass the application. 13.The submissions, by the applicant, are dated 7th June 2026. The applicant identifies 5 issues for determination, around jurisdiction, legitimate expectation, the principle against approbation and reprobation, illegality, irrationality and procedural impropriety, among others. It is argued that the 1st respondent erred in holding that it had no jurisdiction. It is submitted that the right of review had vested in the tenderer from the moment of breach of the duty by the procuring entity, and that right could not be taken away. 14.Macharia & another vs. Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR), Municipal Council of Mombasa vs. Republic & Umoja Consultants Ltd [2002] eKLR, Suchan Investment Limited vs. Ministry of National Heritage & Culture & 3 others [2016] eKLR, Centre for Rights Education and Awareness & Another vs. John Harun Mwau & 6 Others [2012] eKLR, National Bank of Kenya Limited vs. Hamida Bana & 103 others [2017] KECA 151 (KLR), Republic vs. Kenya Revenue Authority Exparte Yaya Towers Limited [2008] KEHC 489 (KLR), Republic vs. Procurement Administrative Review Board & another; Wodex Technologies Ltd (Ex parte Applicant); Tana Solutions Limited (Interested Party) [2023] KEHC 24930 (KLR), among others, are cited. 15.The 2nd and 3rd respondents submit around 4 issues, relating to whether the court is being asked to delve into issues that were not canvassed before the 1st respondent, whether jurisdiction was properly declined, whether the applicant had a legitimate expectation with regard to the jurisdiction of the 1st respondent and whether the applicant was disentitled to relief due to illegality. 16.Decisions in Republic vs. Public Procurement Administrative Review Board; Accounting Officer, Kenya Power & Lighting Company PLC & another (Interested Parties); Almirall East Africa Limited (Ex parte Applicant) [2026] KEHC 5037 (KLR), Republic vs. Public Procurement Administrative Review Board & 2 Others Ex parte Pelt Security Services Ltd [2018] eKLR, Samuel Kamau Macharia & Another vs. Kenya Commercial Bank & 2 Others [2012] eKLR, Communications Commission of Kenya & 5 others vs. Royal Media Services Ltd & 5 others [2014] eKLR and Republic vs. Kenya Revenue Authority ex parte Shake Distributors Ltd [2012] eKLR are cited. 17.The request for review, filed in PPARB No. 54 of 2026, raised several issues, around failure, by the procuring entity, to adhere to the evaluation criteria set out, in the tender documents; failure to conduct a comprehensive technical evaluation of the tender; acting unfairly, failure to award the tender to the lowest bidder; and failure to award the bid to the bidder with the highest score of a responsive proposal. 18.The case, presented in the request for review, in PPARB No. 54 of 2026, was not determined on its merits. A preliminary point of law was raised, with respect to the jurisdiction of the 1st respondent to handle the dispute, given that the procuring entity, the 3rd respondent, had, by the time of the hearing, been privatised, and publicly listed with the Nairobi Securities Exchange. It emerged that the declaration of the 3rd respondent, as a National Government Entity or State Corporation, under Legal Notice No. 33 of 2015, was revoked, on 22nd April 2026, following the privatization process, pursuant to Legal Notice No. 72 of 2026 and Gazette Notice No. 5804 of 2026. In the ruling, of 6th May 2026, the 1st respondent held that it lacked jurisdiction to entertain the request for review, given that the 3rd respondent was no longer a public entity, over which it could exercise jurisdiction. 19.The proceedings herein were prompted by the making of the decision on 6th May 2026, dismissing the request for review. Consequently, the same is premised on section 175 of the Public Procurement and Asset Disposal Act, which permits the seeking of judicial review, at the High Court, within 14 days of the date of the decision of the 1st respondent. The proceedings herein, therefore, can only target the said decision of 6th May 2026, and nothing else. 20.There is only 1 issue for determination, and that is whether the 1st respondent would have any jurisdiction over a public procurement dispute involving a private entity and the applicant. 21.It is common ground that the 3rd respondent was privatised during the pendency of the proceedings. It was a public entity at the time the proceedings were initiated, but it had ceased to be one by the time the decision was made. The 1st respondent exercises jurisdiction over public procurement disputes, between public entities, engaged in public procurement, and persons participating in those exercises. The moment the status of the 3rd respondent changed, from public entity, to a private company, meant that the 1st respondent lost jurisdiction over the matter. See Republic vs. Chairman, Business Premises Rent Tribunal at Nairobi; Wanyonyi (Interested Party); Obwari Enterprises Limited (Ex Parte Applicant) [2025] KEELC 5684 (KLR). 22.The jurisdiction of the 1st respondent is traceable to section 170 of the Public Procurement and Asset Disposal Act, which defines parties to a matter before the 1st respondent, by way of request for review, and, therefore, the entities over which it may exercise jurisdiction. These include the person requesting for the review, the accounting officer of the procuring entity, the tenderer awarded the tender, and such other persons or parties as the 1st respondent may determine. The procuring entity is defined in section 2 of the Public Procurement and Asset Disposal Act, to mean the public entity making a procurement or asset disposal, to which the Public Procurement and Asset Disposal Act applies. 23.The categories of public entities are defined in section 2 of the Public Procurement and Asset Disposal Act. They include the national government or any of its organs or departments; the county government or any of its organs or departments; the Judiciary and the courts; the Commissions and independent offices established under the Constitution; a state corporation, within the meaning of the State Corporations Act, Cap. 446, Laws of Kenya; the Central Bank of Kenya; a public school, within the meaning of the Basic Education Act, Cap. 211, Laws of Kenya; and a public university, within the meaning of the Universities Act, Cap. 210, Laws of Kenya. 24.The others include a city or urban area established under the Constitution; a Kenyan diplomatic mission, under the state department responsible for foreign affairs; a pension fund for a public entity; a body that uses public assets in any form of contractual undertaking, including public private partnership; a body to which a national or county government has a controlling interest; a college or other educational institution maintained or assisted out of public funds; an entity prescribed as a public entity, for the purposes of public procurement and asset disposal; and any other entity or prescribed class of public entities or particular public entities as declared under sections 4 and 5 of the Public Finance Management Act, Cap. 412A, Laws of Kenya. 25.Did it matter that the dispute matured prior to change of status? It did not. The very fact of change of status was adequate to fundamentally change the legal landscape. See Republic vs. Chairman, Business Premises Rent Tribunal at Nairobi; Wanyonyi (Interested Party); Obwari Enterprises Limited (Ex Parte Applicant) [2025] KEELC 5684 (KLR). The orders, sought by the applicant, in PPARB Application No. 54 of 2026, could only rest upon the 3rd respondent remaining a public entity. The applicant, in PPARB Application No. 54 of 2026, wanted the 1st respondent to set aside the award of the tender to the 4th respondent, to set aside the notification that its bid was unsuccessful, and to direct the 3rd respondent to re-admit the bid for re-evaluation. Those actions could only be taken against the 3rd respondent in the context of it being a public entity, and the 1st respondent would have had no jurisdiction to direct a private entity to act. 26.The 1st respondent, therefore, came to the proper finding, that it had no jurisdiction over the matter, once the status of the 3rd respondent changed. Once jurisdiction is lost, a court or tribunal drops its tools, and the 1st respondent was entitled to do just that. See Owners of the Motor Vessel “Lillian S” vs. Caltex Oil (Kenya) Ltd [1989] KLR 1. 27.The 1st respondent made a secondary order, with respect to bringing the decision, in PPARB Application No. 54 of 2026, to the attention of the Director-General, Public Procurement Regulatory Authority, for appropriate action in respect of improper reliance on confidential documents, by the applicant, in its Request for Review. With respect, the 1st respondent had declared that it had no jurisdiction over the matter. That should have been the end of it. The 1st respondent should have downed its tools, and should not have made any further move. It had no jurisdiction to make any other finding, or to make any further order on any other issue, or to take any further step. See Owners of the Motor Vessel “Lillian S” vs. Caltex Oil (Kenya) Ltd [1989] KLR 1. 28.In the end, I am not persuaded that the application, for the Judicial Review orders sought, is adequately substantiated or established, and I find and hold that it has not reached the threshold for grant of the prayers sought. It is hereby disallowed and dismissed. The Originating Motion herein, dated 15th May 2026, is disposed of in those terms. Each party shall bear its own costs. Orders accordingly. DELIVERED VIA CTS, DATED AND SIGNED IN CHAMBERS, AT MILIMANI, NAIROBI, ON THIS 26TH DAY OF JUNE 2026.W MUSYOKAJUDGEMr. Abdirahman, Court Assistant.AdvocatesMr. Wambui, instructed by Wambui Shadrack & Associates, Advocates for the applicant.Mr. Ali, instructed by the Attorney General, for the 1st respondent.Mr. Nyaduwa Odongo, Advocate for the 2nd and 3rd respondents.