https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7595

Kalmar Finland Oy v Public Procurement Administrative Review Board & 2 others; Brookwood Technical Limited (Interested Party) (Judicial Review E117 of 2026) [2026] KEHC 7595 (KLR) (Judicial Review) (28 May 2026) (Judgment) Neutral citation: [2026] KEHC 7595 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Judicial Review Judicial Review E117 of 2026 WM Musyoka, J May 28, 2026 Between Kalmar Finland Oy Applicant and Public Procurement Administrative Review Board 1st Respondent The Accounting Officer, Kenya Ports Authority 2nd Respondent Kenya Ports Authority 3rd Respondent and Brookwood Technical Limited Interested Party Judgment 1.The Originating Motion herein, dated 20th April 2026, seeks the reliefs of 2 certiorari, 2 mandamus, a prohibition and 2 declaratory orders, with respect to a tender number KPA/053/2025-2026/CCE; a letter, dated 3rd March 2026, of the 3rd respondent on that tender; and a decision, made on 7th April March 2026, by the 1st respondent, on a dispute arising from the same tender. 2.The declarations sought are to the effect that the said tender was restricted to 4 named original manufacturers of specified equipment, which made the interested party ineligible, as a bidder, and that the bid by the applicant, to that tender was substantially responsive. The certiorari orders are sought to quash the letter, dated 3rd March 2026, and the decision made on 7th April 2026. The prohibition order is to bar the 2nd and 3rd respondents from giving effect to the decision of 7th April 2026. The mandamus orders are to compel the 2nd and 3rd respondents to readmit the bid by the applicant, or to compel them to conduct a fresh tendering exercise in conformity with the provisions of the Public Procurement and Asset Disposal Act The Originating Motion herein, dated 20th April 2026, seeks the reliefs of 2 certiorari, 2 mandamus, a prohibition and 2 declaratory orders, with respect to a tender number KPA/053/2025-2026/CCE; a letter, dated 3rd March 2026, of the 3rd respondent on that tender; and a decision, made on 7th April March 2026, by the 1st respondent, on a dispute arising from the same tender. 3.The declarations sought are to the effect that the said tender was restricted to 4 named original manufacturers of specified equipment, which made the interested party ineligible, as a bidder, and that the bid by the applicant, to that tender was substantially responsive. The certiorari orders are sought to quash the letter, dated 3rd March 2026, and the decision made on 7th April 2026. The prohibition order is to bar the 2nd and 3rd respondents from giving effect to the decision of 7th April 2026. The mandamus orders are to compel the 2nd and 3rd respondents to readmit the bid by the applicant, or to compel them to conduct a fresh tendering exercise in conformity with the provisions of the Public Procurement and Asset Disposal Act, Cap 412C, Laws of Kenya. 4.The grounds, upon which the Originating Motion is premised, are set out on the face of the application. It is averred that the tender was restricted to the original manufacturers of the equipment already in use by the 3rd respondent, and the applicant had made the lowest tendered price. The applicant filed a request for review, before the 1st respondent, on 17th March 2026, which was dismissed on 7th April 2026, on grounds that were, according to the applicant, fundamentally flawed in law, fact and reasoning. The grounds, upon which that decision is now being challenged, are identified as illegality and errors of law, prejudice to the legal rights of the applicant, irrationality, unreasonableness and violation of legitimate expectations. 5.The factual background to the application is set out in the supporting affidavit, sworn on 20th April 2026, by Vishal Soni, whose relationship with the applicant is not disclosed. The applicant is said to be a company incorporated in Finland, and a world leading manufacturer of port handling equipment. The 2nd and 3rd respondents floated a restricted tender for procurement of 15 new forklift trucks, which tender was limited to original manufacturers of the equipment currently in use by the 3rd respondent, at its ports and inland container depots, standardisation, interchangeability of parts and aftersales maintenance reasons. The notice of intention to procure, generated by the 2nd and 3rd respondents, identified or named 4 original manufacturers of the equipment. 6.It is stated that the applicant, being eligible and qualified, was issued with a tender document, and it prepared its bid, for Lot 1, in strict compliance with the requirements and instructions, and submitted its bid within the closure deadline, as extended. The tendering process closed on 4th February 2026, and the sealed bids were opened the same day. It emerged that there were 6 bidders, including the applicant and the interested party. The interested party was awarded the tender on 3rd March 2026. On the same date the applicant was notified that its tender had been unresponsive, for failure to provide audited reports for the years 2024 and 2025. It is averred that such audited reports would only have been required for local agents of original manufacturers of the equipment, and not the original manufacturers of the equipment themselves. It is asserted that the applicant had submitted complete audited financial statements for the period required in the tender documents, and the 2nd and 3rd respondents did not seek any clarification from the applicant, with respect to that. 7.It is averred that the applicant was aggrieved by the decision of 3rd March 2026, and challenged it before the 1st respondent, in an application filed on 17th March 2026, in PPARB Application No. 43 of 2026, seeking annulment of the declaration that its application was unresponsive, the annulment of the proposed award to the interested party, and re-admission of its bid for technical and financial evaluation. The 2nd and 3rd respondents and the interested party filed responses. A hearing was conducted, on 1st April 2026, and a decision was made, on 7th April 2026, dismissing the request for review. 8.It is stated that the decision of the 1st respondent suffers the infirmities of illegality, gross errors of law, irrationality, unreasonableness and violation of the legitimate expectations of the applicant. It is submitted that the court should grant the orders sought herein, based on the principles governing conduct of public procurement, set out in section 3 of the Public Procurement and Asset Disposal Act and Article 227 of the Constitution. 9.Several documents are exhibited to the supporting affidavit. There is the notice of the intention to procure through restricted tender, issued by the 3rd respondent, on an undisclosed date in December 2025, restricting the tender to 4 named original equipment manufacturers of the equipment currently in use, who include the applicant. There is a copy of a letter, dated 3rd March 2026, from the 3rd respondent, addressed to the applicant, informing it about the award of tender to the interested party, disclosing the reason why its bid did not succeed, and notifying it that it could challenge the decision within 14 days. There is a copy of the request for review, by the applicant, dated 17th March 2026, together with the affidavits and the annextures supporting it, as well as the written submissions arguing it. 10.The annextures, to the request for review, included a deed of authority, dated 11th March 2026; the undated intention to procure through restricted tender; an invitation to tender letter, dated 2nd January 2026 addressed to the applicant by the 3rd respondent; the tender document itself, dated December 2025; a bundle of addenda, dated 6th January 2026, 9th January 2026, 13th January 2026, 20th January 2026, 23rd January 2026 and 28th January 2026, addressing additional matters, inclusive of extension of the date of the closing of submitting bids; a copy of the letter, dated 3rd March 2026, addressed to the applicant by the 3rd respondent, notifying of the award of the tender to the interested party, and assigning reasons for the rejection of the bid made by the applicant. There are also copies of the filings made by the respondents and the interested party, in PPARB Application No. 43 of 2026, being notices of appointment of Advocates, replying affidavits and written submissions, and lists and bundles of authorities. Finally, there is a copy of the decision in PPARB Application No. 43 of 2026, dated 7th April 2026. 11.Upon being served with the Originating Motion, the 2nd and 3rd respondents and the interested party filed notices of appointments of their respective Advocates, and responded to the application, by way of replying affidavits. 12.The reply, by the 2nd and 3rd respondents, to the Originating Motion, is vide an affidavit that Moses Sirgoi, of the supply and chain management section of the 3rd respondent, swore on 11th May 2026. The affidavit largely aligns with the averments by the applicant about notification of a restricted tender, limited to original equipment manufacturers of the subject equipment currently in use at the ports and inland depots of the 3rd respondent. It is averred that on 3rd December 2025, following publication of the intention to procure, a principal of the interested party wrote, on 30th December 2025, expressing an interest, in participating in the subject tender, and appointing the interested party as its agent. It is further averred that there was legal justification for the inclusion of the interested party in the process, hence it was invited to participate. 13.On 2nd January 2026, invitations to tender were sent out to the 4 original equipment manufacturers mentioned in the intention to tender, and the interested party as the 5th potential bidder. It is stated that the initial closing date for the bids was extended, from 23rd January 2026 to 4th February 2026, when the tenders were opened. 4 bids had been placed, from the applicant and the interested party and 2 other entities. There was an evaluation of the bids, after which letters were written, on 3rd March 2026, communicating awards to those successful and regrets to those unsuccessful. Thereafter, it is averred, the applicant moved to the 1st respondent, in PPARB Application No. 43 of 2026, seeking review of the decision of the 3rd respondent. The 2nd and 3rd respondents reacted to that application for review, which was heard, and a determination was made on 7th April 2026, dismissing the request for review, on grounds that the interested party was eligible to participate in the tender, the 1st respondent lacked jurisdiction for the challenge was filed outside the timelines given in law, and the bid by the applicant was properly found to have been unresponsive. 14.The rest of the affidavit, filed on behalf of the 2nd and 3rd respondents, delves into legal matters, and it carries legal arguments to support the decision of the 1st respondent, and, therefore, it makes submissions on matters of law rather than making factual averments. The legal issues addressed include the definition of illegality, irrationality and procedural impropriety, as per Pastoli vs. Kabale District Local Government Council & Others [2008] EA 300. 15.A number of copies of documents are annexed in support, which are the same as those annexed by the applicant. 16.The reply, by the interested party, takes the form of an affidavit, sworn on 11th April 2026, by Saada Ali Juma, a director of the interested party. It is averred that the interested party became aware of the tender on 27th December 2026, when information on it was posted on the website of the 3rd respondent. It is further averred that that notice invited clarifications, which its principal, Fujian South China Heavy Manufacture Company Limited, took advantage of, to express an interest in the tender, by a letter dated 30th December 2025. The 2nd and 3rd respondents then sent an invitation to tender to the principal, dated 2nd January 2026, effectively allowing it to participate in the tender process. The interested party was appointed as the agent for the principal, and it accordingly placed its bid. The interested party submitted its bid, on 14th January 2026, well before the deadline of 4th February 2026. Its bid was evaluated as the most responsive, and an award was made in its favour, and a letter of notification was issued, dated 3rd March 2026, which it accepted vide its own letter of 8th March 2026. There was a challenge to that award, which was properly dismissed, according to the interested party, by the 1st respondent, on 7th April 2026, for having been raised out of time. 17.The rest of the replying affidavit, filed on behalf of the interested party, dwells on legal arguments on the jurisdiction of the court to deal with the matter. It is averred that the application herein challenges the decision, of 7th April 2026, on factual determinations and technical correctness, yet judicial review proceedings turn on considerations of procedural propriety, legality and rationality; there is only a limited jurisdiction to interrogate merits, where violations of constitutional rights are raised; there is no room for re-evaluation of technical soundness or factual correctness of determinations. There are also legal arguments, in support of the decision of the 1st respondent, anchored on Articles 10 and 227 of the Constitution, with respect to the criteria for determination of responsiveness of bids during preliminary, technical and financial evaluation, and the relevant requirements are mandatory and non-derogable, amongst other considerations. 18.There are no documents annexed to the replying affidavit filed on behalf of the interested party, but it does make reference to the documents attached to the supporting affidavit filed on behalf of the applicant, in the Originating Motion. 19.From the physical file before me, I have not come across any written submissions, filed by either of the parties. I have, however, come across written submissions, in the CTS, filed by the 1st respondent, curiously filed multiple times, by the Advocates for all the parties. I have also found it curious that there is nothing on record indicating that the 1st respondent did file a reply to the application, except for the written submissions. I note, though, that its written submissions refer to an affidavit sworn by Philemon Kiprop, on an undisclosed date, which I have been unable to find in the CTS and the physical file before me. 20.In its written submissions, the 1st respondent has identified 9 issues for determination by the court, namely, whether the Originating Motion meets the threshold for grant of judicial review orders of certiorari, mandamus and prohibition; whether the prayer, seeking re-hearing on merits, is competent in judicial review proceedings; whether the decision of the 1st respondent, dated 7th April 2026, in PPARB Application No. 43 of 2026, is tainted by illegality, irrationality or procedural impropriety; whether the challenge to the eligibility of the interested party was statutorily time-barred, under section 167(1) of the Public Procurement and Asset Disposal Act; whether the 1st respondent correctly interpreted Mandatory Requirement XIV of the tender document and lawfully upheld the disqualification of the bid by the applicant; whether failure by the applicant to provide audited accounts for 2023 and 2024, constituted a minor deviation, curable under section 79(2) of the Public Procurement and Asset Disposal Act; whether the issue of the unconstitutionality of Regulation 89(8) of the Public Procurement and Asset Disposal Regulations, 2020, was properly and timeously raised; whether the 1st respondent properly addressed the issue of the authority of the applicant to file the Request for Review; whether the legitimate expectation of the applicant, if any, was violated by the decision of the 1st respondent; and who should bear the costs of these proceedings. 21.On the first issue, on the threshold for grant of judicial review orders and the competence of the re-hearing prayer, it is submitted that it is trite law that judicial review is concerned with the decision-making process, and not with the merits of the decision itself, and Municipal Council of Mombasa vs. Republic & Umoja Consultants Ltd [2002] eKLR is cited in support. It is argued that the grounds upon which judicial review orders are made is settled in Council of Civil Service Unions vs. Minister for the Civil Service [1985] AC 374, the "GCHQ case", which identifies 3 main grounds: illegality, irrationality, and procedural impropriety. These grounds, it is argued, have been adopted and applied locally in Pastoli vs. Kabale District Local Government Council & Others [2008] 2 EA 300. It is submitted that illegality arises when the decision-making authority commits an error of law or acts without jurisdiction; irrationality is when there is such gross unreasonableness that no reasonable authority would have made the decision; and procedural impropriety is a failure to act fairly or to observe the rules of natural justice. 22.It is submitted that the 1st respondent is a specialized statutory tribunal, established under section 27 of the Public Procurement and Asset Disposal Act. It is argued that in Kenya Pipeline Company Limited vs. Hyosung Ebara Company Limited & 2 others [2012] eKLR, it is held that the Review Board is obviously better equipped than the High Court to handle disputes relating to breach of duty by a procuring entity, and that its decision in matters within its jurisdiction should not be lightly interfered with. It is submitted that this principle has been affirmed in subsequent decisions, including Jamari Enterprises Limited vs. Public Procurement Administrative Review Board & 2 others [2026] KECA 554 (KLR) and Goldfield Insurance Brokers Limited vs. Public Procurement Administrative Review Board & 3 others [2026] KECA 711 (KLR). 23.It is submitted that the Originating Motion herein invites the court to re-evaluate the exercise of due diligence, and to substitute its views for those of the 1st respondent. It is argued that this would be impermissible in judicial review proceedings, as is held in Republic vs. Public Procurement Administrative Review Board & Another ex parte Rongo University [2017] eKLR, judicial review should not be used to micro-manage procurement processes or to supplant the specialized jurisdiction of the 1st respondent. The 1st respondent submits that the applicant has failed to demonstrate any of the 3 grounds warranting judicial review intervention, and it is asserted that the 1st respondent acted within its statutory mandate, observed the rules of natural justice, and arrived at a reasoned decision based on the evidence before it. 24.On whether the challenge to the eligibility of the interested party was statutorily time-barred, it is submitted that section 167(1) of the Public Procurement and Asset Disposal Act is unequivocal, for it provides that a “candidate or a tenderer who claims to have suffered or to risk suffering loss or damage due to a breach of duty imposed on a procuring entity may seek administrative review within fourteen days of notification of award or the date of occurrence of the alleged breach at any stage of the procurement process.” It is argued that Amazon Transporters Limited vs. Public Procurement Administrative Review Board & 2 others; Jennygo Enterprises Limited (Interested Party) [2025] KECA 984 (KLR) holds that the threshold, for determining the date of occurrence of a breach, is the date of actual or constructive knowledge of the breach by the applicant. It is further argued that, in Republic vs. Public Procurement Administrative Review Board & 2 others Ex-Parte Kemotrade Investment Limited [2018] eKLR, it is held that “where an applicant had knowledge of a breach at the tender opening stage, time began to run from that date, and the Board had no jurisdiction to consider the breach when it was included in a request for review filed much later.” 25.The 1st respondent argues that it is not in dispute that a representative of the applicant was present at the tender opening on 4th February 2026, for the Tender Opening Minutes, which form part of the confidential record, show that the names of all bidders were read aloud, including that of the interested party, and the applicant, therefore, knew or ought to have known that the interested party was participating in the tender. 26.In computing whether the request for review was time-barred, it is submitted that the 14-day period had commenced on 4th February 2026 and lapsed on 18th February 2026. In accordance with section 57(a) of the Interpretation and General Provisions Act, Cap 2, Laws of Kenya, 4th February 2026, being the date on which the tender opening occurred, was excluded from the computation. Accordingly, it is submitted, the applicant had the period between 5th February 2026 and 18th February 2026, within which to raise the issue regarding the eligibility of the interested party, to participate in the subject tender proceedings. 27.The applicant filed its request for review on 17th March 2026, a full 41 days after the tender opening. The challenge, to the eligibility of the interested party, was, therefore, it is submitted, well outside the statutory timeline. The applicant, it is submitted, argues that the breach only crystallized upon the issuance of the notification, on 3rd March 2026, of intention to award the tender, because only then did it have knowledge of the legal basis of the participation of the interested party. This argument conflates knowledge of participation with knowledge of legal basis, and is legally untenable for various reasons, it is argued. 28.Firstly, it is submitted, the actionable breach was the participation of the interested party in a restricted tender allegedly limited to 4 named original equipment manufacturers. That fact that the interested party was participating, was known on 4th February 2026. The applicant did not need to know the legal basis of the participation, to be aggrieved by the fact of the participation. It is argued, that a bidder, who observes an allegedly ineligible competitor at tender opening, cannot strategically wait to see whether that competitor wins, before deciding to challenge its eligibility. To permit such a strategy would undermine the entire statutory scheme, under section 167(1) of the Public Procurement and Asset Disposal Act, which is designed to ensure timely resolution of procurement disputes, and to prevent the paralysis of procurement processes through belated challenges. 29.Secondly, it is argued that the eligibility of the interested party was ascertainable from the tender documents themselves. ITT Clause 7, of the invitation to tender, expressly provided that original equipment manufacturers could participate directly or through their duly authorized and appointed local agents based in Kenya. The applicant, as an invited original equipment manufacturer, was aware of this provision. The applicant could have, at the tender opening, or within 14 days thereafter, requested to inspect the manufacturer’s authorization of the interested party, or challenged the tender documents' interpretation as permitting agent participation. It is submitted that the failure by the applicant to do so was a strategic choice, not a barrier created by any statutory confidentiality regime. 30.Thirdly, it is submitted that the reliance of the applicant on confidentiality, under section 67 of the Public Procurement and Asset Disposal Act, is misplaced. Section 67(3)(e) of the Public Procurement and Asset Disposal Act permits disclosure of confidential documents to the parties in the review proceedings. The applicant could have, and in fact did, request and obtain access to the interested party’s bid documents during the proceedings before the 1st respondent. However, it is argued, the confidentiality regime did not prevent the applicant from knowing, on 4th February 2026, that the interested party was participating in the tender. The applicant’s claim, that it lacked knowledge of the legal basis for the interested party's participation, is not a valid excuse for failing to challenge the participation itself within the statutory timeframe. 31.The 1st respondent, therefore, it is submitted, correctly held that it lacked jurisdiction to determine the issue of the eligibility of the interested party on its merits. The finding, by the 1st respondent, on this issue, it is submitted, was lawful, rational and consistent with binding judicial authority. 32.On whether the challenge to Regulation 89(8) was time-barred, it is noted, by the 1st respondent that the applicant argued before the 1st respondent that the participation of the interested party was unlawful, because Regulation 89(8) of the Public Procurement and Asset Disposal Regulations 2020, which allowed the inclusion of bidders outside the known suppliers, had been declared unconstitutional, in Roads and Civil Engineering Contractors Association & another vs. Attorney General & another [2025] KEHC 19224 (KLR). This argument was raised for the first time in the further affidavit of the applicant, filed on 31st March 2026. The applicant was aware of the judgment, in Roads and Civil Engineering Contractors Association & another vs. Attorney General & another [2025] KEHC 19224 (KLR), as it was delivered on 4th December 2025, and was also aware of the reference to Regulation 89(8), in the notice of intention to procure through restricted tender, issued on 23rd December 2025, and in the invitation to tender, received on 2nd January 2026. 33.If the applicant wished to challenge the constitutionality of the regulation or its applicability to the subject tender, it is argued, it should have done so within 14 days of 2nd January 2026, and not 3 months later. It is asserted that the 1st respondent correctly found that this issue was also time-barred, under section 167(1) of the Public Procurement and Asset Disposal Act. In any event, it is further argued, even if Regulation 89(8) were to be declared unconstitutional, the procurement process would still remain validly anchored on section 102(1)(c) and (d) of the Public Procurement and Asset Disposal Act, which independently authorizes restricted tendering, when there is evidence that only a few known suppliers exist in the market, and permit the invitation of other persons or entities capable of supplying the goods. The finding of the 1st respondent, that the participation of the interested party was lawful, was, therefore, it is submitted, sound and well-founded, irrespective of the constitutional status of Regulation 89(8). 34.On whether the 1st respondent correctly interpreted mandatory requirement XIV and lawfully disqualified the bid by the applicant, it is submitted that the touchstone, for evaluating bids in a public procurement process, is responsiveness. Sinopec International Petroleum Service Corporation vs. Public Procurement Administrative Review Board & 3 others [2024] KECA 184 (KLR) is cited in support, where it is held that “bids are first evaluated for compliance with responsiveness criteria before being evaluated for compliance with other criteria. A bid only qualifies as a responsive bid if it meets all requirements as set out in the bid documents. Bids found to be non-responsive are excluded from the bid process regardless of the merits of their bids. Responsiveness is thus the first important hurdle for bidders to overcome.” 35.It is submitted that the bid by the applicant was disqualified at the preliminary evaluation stage, for failure to comply with mandatory requirement XIV of the tender document. The requirement stated:“Tenderer's complete set of Audited Accounts for the last three years 2022, 2023 and 2024. The Accounts submitted should be audited by a registered auditor and evidenced by Auditor's practicing number (for local the original equipment manufacturers Agents) (Mandatory)."The 1st respondent interpreted this requirement as imposing, on all tenderers, without exception, the obligation to submit a complete set of audited accounts for the years 2022, 2023, and 2024. The 1st respondent further interpreted the bracketed phrase, "for local the original equipment manufacturers Agents," as imposing an additional evidentiary requirement on local agents, namely, that their accounts be audited by a registered auditor, evidenced by a practising number, while not relieving foreign original equipment manufacturers of the primary obligation to submit audited accounts. 36.The 1st respondent submits that its interpretation was reasonable and lawful, and entitled to substantial deference. The parenthetical, "for local the original equipment manufacturers Agents," it is argued, is placed at the end of the requirement in a manner that is grammatically ambiguous, for it is capable of being read as modifying the entire requirement or only the auditor verification clause. Where a tender document is capable of two reasonable interpretations, it is submitted, that the interpretation adopted by the specialized procurement tribunal, which has institutional expertise in procurement practice and the intent of tender documents, is entitled to significant weight. 37.The 1st respondent further submits that its interpretation is supported by purposive considerations. The purpose of Mandatory Requirement XIV, it is asserted, is to verify the financial capacity and reliability of tenderers over a 3-year period. Financial capacity is a fundamental criterion in public procurement, it is argued further, as it ensures that the successful bidder can perform the contract and meet its financial obligations. To interpret the requirement, as exempting foreign original equipment manufacturers from the obligation to submit audited accounts, would undermine this purpose and create a significant risk to the procuring entity. It would mean that a foreign original equipment manufacturer could participate in a multi-million-shilling tender without any verified financial history for 2 of the 3 required years, which would be a result that is inconsistent with the principles of fairness, transparency, and cost-effectiveness, and contrary to Article 227(1) of the Constitution and section 3 of the Public Procurement and Asset Disposal Act. 38.It is argued that the applicant admitted, before the 1st respondent, and does not dispute, in the present proceedings, that it did not provide audited accounts for 2023 and 2024. It is pointed out that it submitted financial statements for those years without the accompanying auditor's reports. The purpose of an auditor's report, it is submitted, is to provide independent verification that the accounts have been audited in accordance with the applicable standards. Without such a report, it is argued, the procuring entity cannot ascertain the true financial position of the tenderer for those years. The 1st respondent correctly found, it is submitted, that the applicant failed to satisfy the mandatory requirement. 39.It is stated that the applicant argues that the interpretation by the 1st respondent renders the bracketed words "(for local OEM Agents)" superfluous. The 1st respondent submits that this is not so. Under the interpretation by the 1st respondent, the bracketed words have an independent meaning: they impose an additional, specific evidentiary requirement on local agents that does not apply to foreign original equipment manufacturers. This is a meaningful distinction, it is argued, as local agents may be smaller entities, whose financial accounts require additional verification, through a registered auditor's practising number. The interpretation suggested by the applicant, it is submitted, by contrast, would render the primary obligation, "Tenderer's complete set of Audited Accounts for the last three years," entirely inapplicable to foreign original equipment manufacturers, producing the absurd result that foreign original equipment manufacturers would be exempt from financial verification, while local agents would be subjected to it. 40.The 1st respondent submits that its interpretation is the only one that gives meaningful effect to every word of the requirement, without producing absurd or discriminatory results; and that that by the applicant would create a perverse incentive for procuring entities to favour foreign original equipment manufacturers over local agents, by exempting the former from financial scrutiny, a result that is plainly inconsistent with the constitutional and statutory objectives, of promoting local participation and ensuring fair competition. 41.On whether the failure by the applicant to provide Audited Accounts constituted a minor deviation, curable under section 79(2) of the Public Procurement and Asset Disposal Act, the 1st respondent states that the applicant argues that, even if the omission of auditor's reports for 2023 and 2024 were considered a deficiency, that constituted, according to the applicant, at most, a "minor non-material deviation," within the meaning of section 79(2) of the Public Procurement and Asset Disposal Act and Clause ITT 28.2 of the tender document. The 1st respondent submits that this argument is legally untenable, for a number of reasons. 42.Firstly, section 79(2) of the Public Procurement and Asset Disposal Act applies only to responsive bids, which have already passed the preliminary evaluation hurdle. The bid by the applicant was found to be non-responsive, at the preliminary stage, for failure to comply with a mandatory requirement. A non-responsive bid cannot be "cured" as a minor deviation, it is argued, because it has not achieved responsive status. Republic vs. Public Procurement Administrative Review Board; Ex parte Roben Aberdare (K) Ltd [2019] eKLR is cited, for the holding that “mandatory requirements are non-derogable and cannot be waived or treated as minor deviations. To permit a bidder to cure a material non-compliance after bid opening would prejudice other compliant bidders and undermine the fairness and competitive nature of the tender process.” 43.Secondly, it is submitted, that the classification of a deviation as "minor," under section 79(2) of the Public Procurement and Asset Disposal Act, requires that the deviation: does not affect in any substantial way the scope, quality, or performance of the goods; does not limit in any substantial way the purchaser's rights under the contract; and does not unfairly affect the competitive position of other bidders. The 1st respondent submits that the failure by the applicant, to provide audited accounts for 2023 and 2024, fails all 3 limbs of the test above. 44.On the first limb, financial capacity is said to be inherently material to the performance of a contract for the supply of the 15 new forklift trucks. The successful bidder must demonstrate that it has the financial resources to manufacture, supply, test, and commission the equipment, as well as to provide after-sales support and spare parts. A bidder, whose financial health for 2 of the 3 required years is unverified, presents a material performance risk to the procuring entity. On the second limb, it is argued that the omission of the auditors’ reports limits the procuring entity's rights under the contract, because it deprives the procuring entity of the ability to verify the tenderer's financial capacity, before entering into a binding procurement contract. The procuring entity's right to evaluate bids in accordance with the tender document includes the right to require complete and verified financial information. 45.On the third limb, it is argued that allowing the applicant to cure its non-compliance would unfairly affect the competitive position of other bidders, including the interested party, who had complied fully with the mandatory requirement. It is stated that the applicant’s bid was the lowest evaluated bid, and, if the applicant were permitted to supplement its bid after disqualification, it would gain an unfair advantage over compliant bidders, who submitted complete documentation within the original deadline. This would undermine the integrity of the competitive process and discourage future bidders from strict compliance with mandatory requirements. 46.It is stated that the applicant further argues that the procuring entity was under a statutory obligation, under section 81 of the Public Procurement and Asset Disposal Act, to seek clarification from the applicant regarding the purported deficiency before proceeding to disqualify the bid. The 1st respondent submits that this argument is misconceived. Section 81(1) of the Public Procurement and Asset Disposal Act provides that a procuring entity "may, in writing, request a clarification." It is argued that the use of the word "may" confers a discretionary power, not a mandatory duty. Moreover, clarification under section 81 is intended to assist in the evaluation of responsive tenders, it cannot be used to cure a non-responsive bid. Republic vs. Public Procurement Administrative Review Board; Kenya Medical Supplies Authority (KEMSA) (Interested Party) Ex parte Emcure Pharmaceuticals Limited [2019] eKLR, is cited, for the holding that “… a procuring entity is not obliged to seek clarification where a bid is demonstrably non-responsive. The Board's decision to uphold the disqualification without requiring clarification was therefore lawful and consistent with established procurement jurisprudence.” 47.On alleged irrationality and unreasonableness, it is stated that the applicant alleges that the decision of the 1st respondent was irrational and unreasonable. It is submitted that the standard of review for irrationality is the Wednesbury standard, as applied in Associated Provincial Picture Houses Ltd vs. Wednesbury Corporation [1948] 1 KB 223, and adopted in Kenya in Pastoli vs. Kabale District Local Government Council & Others [2008] EA 300, where it was stated, it is submitted, that a decision is unreasonable if it is so outrageous, in its defiance of logic or accepted moral standards, that no sensible person, applying their mind to the matter, could have arrived at it. 48.It is submitted that the applicant has failed to meet this high threshold. It is stated that the findings of the 1st respondent were based on: a reasonable interpretation of Mandatory Requirement XIV; the admission by the applicant’s that it did not provide audited accounts for 2023 and 2024; the undisputed fact that the representative of the applicant being present at the tender opening on 4th February 2026; the Tender Opening Minutes showing that the interested party’s name was read aloud; and the confidential documents submitted pursuant to section 67(3)(e) of the Act. It is argued that the decision was adequately reasoned, internally consistent, and based on relevant considerations. The allegations of irrationality by the applicant reduce to a disagreement with the evaluative conclusions of the 1st respondent, yet a disagreement on the merits is not a ground for judicial review. Kenya Pipeline Company Limited v Hyosung Ebara Company Limited & 2 others [2012] eKLR, is cited where it was said, “… the High Court should not substitute its own views for those of the specialized procurement tribunal unless the decision is so irrational that no reasonable tribunal could have made it.” It is submitted that the decision of the 1st respondent, in this case, is plainly not of that character. 49.On the alleged violation of legitimate expectation, it is stated that the applicant contends that it had a legitimate expectation that: the subject tender would be limited to the 4 named original equipment manufacturers; its bid would be evaluated strictly in accordance with the criteria set out in the tender document, including the bracketed qualifier "(for local OEM Agents)," in Mandatory Requirement XIV; and any perceived deficiency in its bid would be dealt with under the clarification procedure under section 81 of the Public Procurement and Asset Disposal Act, rather than through summary disqualification. It is submitted that the doctrine of legitimate expectation requires a clear unambiguous representation by the public body. Kenya Revenue Authority vs. Tradewise Limited [2021] KECA 156 (KLR) is cited, where it is held that for a legitimate expectation to arise, there must be a representation that is clear, unambiguous, and devoid of qualification, and that it must be within the authority of the public body to make. 50.It is argued that alleged legitimate expectation of the applicant, that the tender would be limited to the 4 named original equipment manufacturers is not supported by the tender documents. The Notice of Intention identified 4 original equipment manufacturers, as "known suppliers" of equipment currently in use at the ports, did not create an exclusive or closed list. Section 102(1)(d) of the Public Procurement and Asset Disposal Act expressly permits the procuring entity to invite "other persons who may be capable of supplying the goods," in addition to known suppliers. The 4 named original equipment manufacturers were the starting point for the restricted tender, not a ceiling. It is asserted that the applicant had no legitimate expectation that the tender would be limited to the 4 named original equipment manufacturers to the exclusion of all others, particularly where the Invitation to Tender, ITT Clause 7, expressly contemplated participation by the original equipment manufacturers through authorized local agent. 51.It is argued that the alleged legitimate expectation of the applicant, that its bid would be evaluated strictly in accordance with the criteria set out in the tender document, is precisely what occurred. The evaluation committee applied Mandatory Requirement XIV, found the bid by the applicant non-responsive, for failure to submit complete audited accounts, and disqualified it. The real complaint by the applicant is not that the criteria were not applied, but that the 1st respondent did not accept the interpretation of the criteria preferred by the applicant. It is submitted that that would be a disagreement on the merits, not a violation of legitimate expectation. 52.It is submitted that the alleged legitimate expectation, that any perceived deficiency would be dealt with under the clarification procedure under section 81, is equally unfounded. It is argued that section 81(1) of the Public Procurement and Asset Disposal Act confers a discretionary power on the procuring entity to request clarification, and that it does not create a duty to clarify, nor does it entitle a tenderer to have a non-responsive bid cured through clarification. It is stated that the applicant had no legitimate expectation that the procuring entity would exercise its discretionary power under section 81 in favour of the applicant, particularly where the non-compliance by the applicant was with respect to a mandatory requirement at the preliminary evaluation stage. 53.It is argued that the doctrine of legitimate expectation cannot be invoked to compel an administrative body to act contrary to the law, or to ignore material deviations in a tender. Republic vs. Public Procurement Administrative Review Board Ex parte Rongo University [2018] KEHC 9643 (KLR) is cited, where it is stated that “… judicial review will not issue to protect an expectation that is inconsistent with statutory requirements.” The expectations by the applicant's, to the extent they existed, were not legitimate, because they were inconsistent with the plain terms of the Public Procurement and Asset Disposal Act, the tender documents, and the statutory mandate of the 1st respondent. 54.On the issue of the authority of the applicant to file the Request for Review and the Originating Motion, it is stated that the respondents and the interested party challenged the authority of Vishal Soni to swear the supporting affidavit on behalf of the applicant, in the Request for Review proceedings. The 1st respondent, after considering the Deed of Authority, executed by Jarmo Reunamaki and Riika Jokihaara, described as directors, and witnessed by Jaana Valovirta, found that Vishal Soni had sufficiently deponed to being duly authorized. In Makupa Transit Shade Limited & another vs. Kenya Ports Authority & another [2015] eKLR, cited by the 1st respondent, it is held that it is sufficient for corporate deponents to state that they were duly authorized, and it was then up to the disputing party to demonstrate, by evidence, that they were not so authorized. Eye Company (K) Limited vs. Erastus Rotich t/a Vision Express [2021] eKLR, cited by the 1st respondent, holds that the burden shifts to the disputing party to show lack of authority. 55.It is submitted that the 2nd and 3rd respondents and the interested party had adduced no evidence to demonstrate that Vishal Soni lacked the requisite authority. The finding of the 1st respondent, on this issue, is correct according to the 1st respondent. The 1st respondent notes that the same issue of authority arises in respect of the present originating motion, which is also supported by an affidavit sworn by Vishal Soni. The same Deed of Authority, that was found sufficient by the 1st respondent supports the present proceedings. It is argued that, in the absence of any evidence challenging Vishal Soni's authority, the originating motion is competent as filed. 56.On the discretionary nature of judicial review orders, it is argued that the orders sought by the applicant are discretionary, and that, even where grounds for judicial review are established, but it is asserted that they are not, the court would still retain discretion to refuse the remedy. Republic vs. Attorney General & another ex parte Njuguna [2020] eKLR is cited, where it is held that judicial review orders are discretionary and may be refused where the applicant has not come to court with clean hands, or where granting the remedy would cause public inconvenience or prejudice third parties. 57.It is argued that the originating motion herein is filed by a party whose bid was properly found to be non-responsive, for failure to comply with mandatory requirements. The applicant seeks to have its non-compliance legitimised through judicial intervention, and to displace the successful bidder, who had complied fully with the tender requirements. Granting the orders sought would, it is submitted, prejudice the interested party, who has been lawfully declared the successful bidder and has communicated its acceptance of the award; prejudice the 2nd and 3rd respondents, who would be compelled to re-evaluate a non-responsive bid and delay the procurement of critical port-handling equipment; and prejudice the public interest in the finality, fairness, and competitiveness of procurement processes. 58.It is submitted that, in Lavington Security Limited vs. Public Procurement Administrative Review Board; Kenya Roads Board & 3 others (Interested Parties) [2025] KEHC 11901 (KLR), it is emphasized that judicial review must balance individual rights against public interest considerations. Where public interest weighs heavily in favour of upholding a decision, the court may decline to grant discretionary remedies even where some procedural impropriety is shown. It is argued that the subject tender herein involves critical port-handling equipment for the 3rd respondent, a strategic regional asset, responsible for handling the majority of cargo throughout East Africa. The restricted tender was designed to ensure standardisation, interchangeability of parts, after-sales support, and economy of maintenance for equipment currently in use at the ports. It is further argued that public interest weighs heavily in favour of upholding the decision of the 1st respondent, and allowing the procurement process to proceed to its lawful conclusion without further delay. 59.The 1st respondent further submits that the applicant has not demonstrated that it would suffer irreparable harm if the orders sought are not granted. It is argued that the bid by the applicant was non-responsive, and it would not have proceeded to technical or financial evaluation in any event. The loss, allegedly suffered by the applicant, it is argued, is not the result of the decision of the 1st respondent, but of failure of the applicant to comply with mandatory requirements. It is submitted that the proper remedy for the applicant, if any, is not judicial review. 60.On whether the decision of the 1st respondent was lawful, rational, and procedurally fair, it is argued that the said decision, of 7th April 2026, was lawful, rational, and procedurally fair; the 1st respondent applied the correct legal framework under the Public Procurement and Asset Disposal Act, the Public Procurement and Asset Disposal Regulations, the Fair Administrative Action Act, and the Constitution; the decision was based on evidence and logical reasoning, not caprice or whim; all parties were heard; and the decision was adequately reasoned, with clear findings on each issue raised. 61.It is submitted, as deposed, in the replying affidavit of Philemon Kiprop, the 1st respondent carefully analysed whether the Request for Review was time-barred under Section 167(1); whether the applicant had the requisite authority to file the Request for Review; whether the bid by the applicant was evaluated in accordance with the tender document and the Act; and what appropriate orders should issue. It is submitted that the decision of the 1st respondent demonstrates a thorough and careful consideration of all relevant matters, and the disagreement of the applicant with the outcome does not transform a lawful decision into an unlawful one. 62.It is finally submitted that the 1st respondent, as a specialized statutory tribunal, with institutional expertise in public procurement disputes, is entitled to substantial deference from this court. The interpretation of the tender document by the 1st respondent, its application of section 167(1) of the Public Procurement and Asset Disposal Act, and its evaluation of the bid by the applicant, all fall within the range of reasonable decisions that a specialized tribunal could make. It is submitted that this court should not substitute its own views for those of the 1st respondent unless the decision of 1st respondent is so irrational or unlawful that no reasonable tribunal could have made it. The 1st respondent decision in this case is plainly not of that character. 63.The concluding summation is that the originating motion, dated 20th April 2026, is misconceived in law and fact, devoid of merit on all grounds advanced, an improper attempt to invite this court to sit on appeal over the decision of the 1st respondent rather than to exercise its supervisory review jurisdiction, and contrary to public interest in the finality, fairness, and competitiveness of procurement processes. It is argued that the 1st respondent acted within its statutory mandate, observed the rules of natural justice, applied the correct legal principles, and arrived at a reasoned decision, based on the evidence before it. It is submitted that the applicant has failed to demonstrate any illegality, irrationality, procedural impropriety, or breach of legitimate expectation warranting the intervention of this court. 64.Based on the above filings, it is my assessment that the applicant has approached the court with 2 principal grievances. The first is about the inclusion of the interested party in the tendering process, which it argues was unlawful. The second is about its bid being held to be unresponsive, which it argues was unreasonable or irrational. I shall discuss those 2 in turn. 65.It is common ground that when the 2nd and 3rd respondents announced an intention to tender for new equipment, they had in mind procuring the same from the original equipment manufacturers, for the equipment that they were currently using. They had identified 4 of those original equipment manufacturers, on the understanding that it was only those 4 who were to participate in the exercise. However, the interested party came into the picture, and participated in the bidding, despite not being among the 4 mentioned, as the original manufacturers of the equipment that the 3rd respondent was currently using, and, at the end of the exercise, the said interested party was successful in its bid. 66.The applicant thinks that that is objectionable, as it involves including a party, in the process, who was not envisaged at the inception of the tendering process, and whose inclusion, midstream, was, in its estimation, unfair and illegal. The respondents did not think so, as, according to them, the law allows it. The answer, to the issues raised by the applicant, can only lie with what the law provides. 67.The sort of tendering process that the 2nd and 3rd respondents were initiating, through the intention to procure through restricted tender, dated 31st December 2025, is also known as a closed tender method. This approach to tendering is characterised by only specific suppliers, who have been pre-selected or invited by the procuring entity, being allowed to submit bids. 68.The law on it is in the Public Procurement and Asset Disposal Act, which governs all public procurements in Kenya. Section 2 of that Act defines it as a “prequalification procedure by which candidates are invited to demonstrate their qualifications prior to, and as a condition, for being invited to tender or submit proposals.” The use of restricted tendering is limited to the conditions listed in section 102(1) of Public Procurement and Asset Disposal Act, which include the complexity or specialisation of the goods, works and services involved; the disproportionate rime and cost required to evaluate large numbers of bids; and the restricted market of the required goods, works or services, to a few known suppliers. 69.Section 93 of the Public Procurement and Asset Disposal Act provides for prequalification, which is permitted where applicable, in respect of which the procuring entity may conduct a prequalification procedure as a basic procedure prior to adopting an alternative procurement method, other than an open tender for the purpose of identifying the best few qualified firms for the procurement. Section 93(2) limits the prequalification method for complex and specialised, goods, works and services. Section 93(3) requires the procuring entity to publish an invitation notice to candidates to submit applications to be prequalified. 70.Section 93(4) sets out what ought to be in the said invitation, which include:“(a)the name, address and contact details of the procuring entity;(b)outline of the procurement requirement, including the nature and quantity of goods, works or services and the location and timetable for delivery or performance of the contract;(c)statement of the key requirements and criteria to pre-qualify;(d)instructions on obtaining the pre-qualification documents, including any price payable and the language of the documents; and(e)instructions on the location and deadline for submission of applications to pre-qualify;(f)applicable preferences and reservations or any conditions arising from the related policy;(g)declaration that it is open to bidders who meet the eligibility criteria; and(h)requirement that only bidders with capacity to perform can apply.” 71.From the above, it should be clear that a closed tender is a direct result of the prequalification process. The invitation to tender, which initiates the closed tendering process, is not a general invitation to tender, as only a few preselected persons or entities are allowed to participate. 72.Section 102 is also on the subject, it is headed “Restricted Tendering.” It provides, at subsection (1):“An accounting officer of a procuring entity may use restricted tendering if any of the following conditions are satisfied—(a)competition for contract, because of the complex or specialised nature of the goods, works or services is restricted to prequalified tenderers resulting from the procedure under section 94;(b)the time and cost required to examine and evaluate a large number of tenders would be disproportionate to the value of the goods, works or services to be procured; or(c)if there is evidence to the effect that there are only a few known suppliers of the whole market of the goods, works or services;(d)an advertisement is placed, where applicable, on the procuring entity website regarding the intention to procure through limited tender.” 73.So, what happened here? The process opened with publication of a document headed “Intention to Procure through Restricted Tender,” on an undisclosed date. It stated:“The Kenya Ports Authority intends to purchase Equipment vide Tender No. KPA/053/2025-26/CCE; Supply, Testing and Commissioning of Fifteen (15) New Forklift Trucks through restricted tendering method. The Authority has restricted this Tender to four Original Equipment Manufacturers (OEMS) that are currently in use at the port, namely XGMA, Hyster, SMV Konecranes and Kalmar. This decision has been guided by the following factors:i.Reduction on stockholding of spare parts due to interchangeability.ii.Standardization through interchangeability of major parts.iii.Reduction of training costs on engineers.This notice is issued pursuant to section 102(1)(c) and (d) of the Public Procurement and Asset Disposal Act, 2015, and Regulation 89(8) of the Public Procurement and Asset Disposal Rules, 2020. Any correspondence or clarifications with respect to this Notice shall be channelled to tenders@kpa.co.keTender documents will be issued on 31st December 2025Maurice MuyaPrincipal Supply Chain Management OfficerComplaisance Reporting and Records ManagementFOR: MANAGING DIRECTOR.” 74.Looked at from the definition of the prequalified procedure, in section 2 of Public Procurement and Asset Disposal Act, this was a closed tender, as the subject document defines it as a “restricted tendering method.” Looked at from the lens of section 93, it would be clear that the 3rd respondent, as the procuring entity, had chosen to conduct a prequalification procedure as opposed to an open tender, for reasons that are given in the body of the notice. The notice meets the requirements of section 93(4), in terms of the content and substance of the invitation for tender. The notice also meets the requirements of section 102(1), in content and substance, including advertisement on the website of the 3rd respondent, regarding the intention to procure through limited tender. 75.The goods, works and services to be procured were 15 new forklifts, and the identified prequalified tenders are 4, whose equipment was already currently in use at the port. They were identified as XYMA, Hyster, SMV Konecranes and Kalmar. The applicant was among those prequalified to tender; the interested party was not. The interested party reached out to the 2nd and 3rd respondents, and was invited to place its bid. I have seen the addenda to the tender invitation. None of them add the name of the interested party or its brand of forklifts, to the list of the 4 prequalified, in the notice that had been placed on the website of the 3rd respondent, whose equipment was already in use at the port. The interested party had not been prequalified to participate in that restricted tender, which had been restricted to 4 firms. 76.What is the law on that? That is, on inviting tender bids from entities that are not in the notice of the prequalified firms to be invited to participate in the restricted tender. In Sinopec International Petroleum Service Corporation vs. Public Procurement Administrative Review Board & 3 others [2024] KECA 184 (KLR), it was held that a procuring entity is bound by its own bid documents, and it cannot waive mandatory bid requirements. This case was on closed tenders, but the principle stated in it would apply to closed tenders. In a closed tender, the most critical condition is the invitation list. As the invitation list explicitly names the only bidders allowed, a procuring entity that accepts a bid from an unlisted party would be violating its own documents, and under the principle, stated in the case above, the act of accepting such a bid would be illegal, and any resulting award would be void. 77.In Republic vs. Public Procurement Administrative Review Board: Arid Contractors & General Supplies (Interested Party) Ex parte Meru University of Science & Technology [2019] KEHC 1935 (KLR), the need to consider only conforming, and compliant or responsive tenders was emphasised, as failure by bidders to conform would defeat the underlying purpose of the tendering exercise, and it would be unfair to other bidders. 78.The list of invited bidders is a mandatory requirement, and procuring entities have no legal discretion to waive or deviate from it, and inviting bids from firms that are not in the list would amount to the procuring entity disregarding its own bid conditions, making it illegal. It would undermine fair competition and transparency, and allowing an unlisted bidder would be fundamentally unfair to the bidders who were correctly listed, and it undermines the demand for equal treatment, transparency and efficiency under the Constitution. It would also amount to a breach of the listed bidders’ legitimate expectations, for all bidders have a legitimate expectation that the procuring entity would comply with its own tender conditions, and permitting an external bidder would violate that expectation. It would also amount to a breach of the closed tendering method, for it is designed specifically for complex or specialised contracts, where only a pre-approved list of qualified bidders exists, and accepting an outside bid defeats the purpose of the closed tender, and make the entire process a sham. 79.There is the issue of Regulation 89(8) of the Public Procurement and Asset Disposal Regulations, No. 69 of 2020, which allows a procuring entity to invite bids from outside the known suppliers. It states:“For greater certainty of section 102(1)(d) of the Act, any procurement under section 102(1)(c) of the Act, the procuring entity shall place an advertisement on its website or on state portal regarding their intention to procure through restricted tender for at least three days before inviting tenders and where any bidder outside the known suppliers emerge, he or she shall be invited to bid.” 80.The effect of that provision is that once a supplier, presumably previously unknown, of the category of goods, works and services, the subject of the restricted tender is known, there would be liberty for the procuring entity to invite it to participate in the tender process. 81.Let me start with stating that the Public Procurement and Asset Disposal Regulations, 2020, in its entirety, was declared unconstitutional null and void ab initio, in Roads and Civil Engineering Contractors Association & another vs. Attorney General & another; Public Procurement Administrative Review Board & another (Interested Parties) [2025] KEHC 19224 (KLR), for violating various Articles of the Constitution and provisions of the Statutory Instruments Act, Cap. 2A, Laws of Kenya, and a certiorari issued to remove and quash those Regulations. It was ordered that the declaration of unconstitutionality of the Regulations applied retrospectively to invalidate all actions taken under the said Regulations since inception in 2020. 82.The judgement, in Roads and Civil Engineering Contractors Association & another vs. Attorney General & another; Public Procurement Administrative Review Board & another (Interested Parties) [2025] KEHC 19224 (KLR), was rendered on 4th December 2025. The notification of intention to procure through restrictive tender was published on the website of the 3rd respondent on 23rd December 2025, from what I have read from the record. The procurement exercise was undertaken in the course of January and February 2026, and the results of the exercise made known to the parties on 3rd March 2026. 83.By the time the notice was being given, of the intention to carry out a closed tender, on 23rd December 2025, or thereabouts, the Public Procurement and Asset Disposal Regulations, 2020, were no longer in force, for they had already been declared unconstitutional and a nullity from inception. They had no legal foundation, and there was no legal basis for them to be applied in the tender process. The declaration of illegality became effective when it was pronounced on 4th December 2025, and it related back to 30th April 2020, when the said Public Procurement and Asset Disposal Regulations, 2020, became effective. There was no room for them to apply to the tender process undertaken between 23rd December 2025 and 3rd March 2026. Regulation 89(8) of the Public Procurement and Asset Disposal Regulations, 2020, was not in operation at that time, and the 2nd and 3rd respondents had no legal basis to invoke it to invite the interested party to participate in a restricted tender, in which it had not been prequalified. 84.The 1st respondent, when confronted with that issue ruled that the applicant ought to have raised the issue of the illegality of the application of Regulation 89(8) of the Public Procurement and Asset Disposal Regulations, 2020, within 14 days, either from 23rd December 2025 or 2nd January 2026. With respect, the court, in Roads and Civil Engineering Contractors Association & another vs. Attorney General & another; Public Procurement Administrative Review Board & another (Interested Parties) [2025] KEHC 19224 (KLR), rendered that provision a nullity, and any act based on it, both before and after 4th December 2025, was a nullity. The 2nd and 3rd respondents were exercising a power or discretion that they did not have, and the fact that the applicant did not raise issue with respect to it, with them, could not validate what was otherwise illegal, for lacking legal foundation. They had lost the legal authority to invite a bid outside the prequalified list, and the applicant was not obliged to bring that legal position to their attention. It was a matter of the law, which the procuring entity should have known, without having to wait for an outsider to bring it to its attention. 85.The act, of the 1st respondent of explaining away the application of the effect of nullification of Regulation 89(8) of the Public Procurement and Asset Disposal Rules, 2020, on 4th December 2025, to activities that were carried out thereafter, by the 2nd and 3rd respondents was unreasonable and irrational. The Regulation had been rendered ineffective, by the time the tender process commenced, it had ceased to exist, and with it the power or discretion that it had donated to the 3rd respondent. Exercising that power or discretion, after it had ceased to exist, could only have amounted to abuse of power, was irrational and unreasonable. 86.An illegality remains an illegality, and an unconstitutionality remains an unconstitutionality. It has an effect on jurisdiction. The mandate or jurisdiction, granted to the 3rd respondent, under those Regulations, ceased, once the court pronounced the unconstitutionality. Inviting the interested party to the tendering process, after that pronouncement, was illegal. The award of the tender to the interested party, after that pronouncement, was illegal. The 1st respondent should have pronounced so. The timelines, about bringing a challenge on that illegality did not apply, for what is illegal or unconstitutional cannot be rendered legal or constitutional, or otherwise the illegality or unconstitutionality cured, by passage of time. No court or tribunal requires to have jurisdiction to recognise a valid court order rendering legislation unconstitutional. By evading exercise of jurisdiction, the 1st respondent was abetting an illegality, providing sanction to unlawfulness, and sanitising what was plainly illegal. Such conduct neatly falls within the realm of irrationality, unreasonableness and illegality. 87.I have seen arguments, from the submissions by the 1st respondent, that the declaration that Regulation 89(8) is unconstitutional, has no effect on section 102 of the Public Procurement and Asset Disposal Act, and in particular subsection (1)(c) and (d). I see nothing, in those provisions, which would empower the 2nd and 3rd respondents to invite an outsider to participate in a closed tender. There is absolutely no provision, in section 102(c)(d), akin to that in Regulation 89(8). As it is, for the time being, a procuring entity has no power or discretion, with respect to a closed or restricted tender, to exercise the sort of power or discretion that emanated from Regulation 89(8), and any purported exercise of the same would be illegal and ultra vires. 88.The second limb of the complaint by the applicant is that its bid was unreasonably or irrationally declared unresponsive, yet it had fully complied with the conditions and requirements of the tender invitation documents. The rejection of the bid was on the ground that the applicant had not provided audited reports for the years 2024 and 2025. The applicant argued that that requirement for furnishing of audit reports did not apply to it, as an original equipment manufacturer, for it was meant to apply to the local agent of an original equipment manufacturer, where the application is made through an agent, which was not the case in its case. 89.That requirement was carried in part of the tender document headed Mandatory Requirement XIV. It required that:“Tenderer’s complete set of Audited Accounts for the last three years 2022, 2023 and 2024. The Accounts submitted should be audited by a registered auditor and evidenced by Auditor’s practicing number (for local OEM Agents) (Mandatory).” 90.The 2 sides have conflicting interpretations of that provision or requirement. One side says it only required audited accounts to be presented by the agent of an original equipment manufacturer, where the bid is made through an agent. The other argues that the tenderer, whether the original equipment manufacturer or its agent, was required to tender audited accounts, signed by a registered auditor and authenticated by the said auditor’s practicing number. Confronted with that, the 1st respondent found and held that the provision required both the original equipment manufacturers and local agents of the original equipment manufacturers to submit complete sets of audited accounts for 2022, 2023 and 2024, save that the local agents were required, in addition, to submit such audited accounts accompanied by evidence of the registration of the auditor and his practicing certificate number. The holding by the 1st respondent aligns with the arguments advanced by the applicant. 91.The 1st respondent, however, found that the issue was not so much that the practicing certificate number of the auditor was not submitted, but rather that the appellant only submitted the audited accounts for 2022, and omitted to avail those for 2023 and 2024, which made its bid unresponsive. It pointed out that the applicant only provided financial statements for those 2 years, but unaccompanied by audited accounts for those years. The applicant asserted to filing complete audited financial statements for the years in question. 92.The requirement, from my reading of the provision, was for filing of audited accounts, not audited financial statements. There is no dispute that the interested party did not file the audited accounts, but audited financial statements. I did not have the benefit of viewing the documents filed by the applicant, that is its bid, but the 1st respondent did. I have also not seen the confidential documents, that the 2nd and 3rd respondents are required to submit to the 1st respondent, by section 67 of the Public Procurement and Asset Disposal Act, but the 1st respondent had that benefit, and saw what was in them. I shall, based on that, trust that what the 1st respondent states on the matter should be the correct position. 93.The law on what should happen is stated in section 80(2) of the Public Procurement and Asset Disposal Act, that the evaluation and comparison of bids should be done in accordance with the procedures and criteria set out in the tender documents. That has been interpreted by the courts, in such cases as Republic vs. Public Procurement Administrative Review Board; Ex parte Roben Aberdare (K) Ltd [2019] eKLR, where it is held:“… it is a general rule that procuring entities should consider only conforming, complaint or responsive tenders. Tenders should comply with all aspects of the invitation to tender and meet any requirements laid down by the procuring entity in its tender documents. Bidders should, in other words, comply with tender conditions; a failure to do so would defeat the underlying purpose of supplying information to bidders for the preparation of tenders and amount to unfairness if other bidders were to circumvent tender conditions. It is important for bidders to be on equal footing. Moreover, they have a legitimate expectation that the procuring entity will comply with its own tender conditions.”. 94.I am not persuaded that the 1st respondent erred in holding that the bid by the applicant was non-responsive. Audited accounts are critical, in gauging the financial stability of the tenderer, and its ability to perform the contract, should the tender be awarded to it. Failure to file audited accounts would be a major deviation, which would not be curable under sections 79(2) and 81(1) of the Public Procurement and Asset Disposal Act. 95.In the end, in view of what I have discussed above, I am persuaded that the application, for the Judicial Review orders sought is substantiated or established, and I find and hold that it has merit. It is hereby allowed. The Originating Motion herein, dated 20th April 2026, is disposed of in the terms:a.that a declaration is hereby made that the interested party, Brookwood Technical Limited, was ineligible to participate in Tender No. KPA/053/2025-2026/CCE, the said tender having been expressly restricted to the 4 named Original Equipment Manufacturers, of the equipment currently in use at the Kenya Ports Authority, pursuant to section 102(1)(c) and (d) of the Public Procurement and Asset Disposal Act;b.that an order of certiorari is hereby made, removing to this court, for purposes of being quashed, and quashing, the decision of the Accounting Officer, Kenya Ports Authority, communicated by the Notification of Intention to Award, dated 3rd March 2026, under reference PSM/CTC/1/03 (053) VOL. 1, declaring the applicant’s bid non-responsive in Tender No. KPA/053/2025-2026/CCE and awarding Lot 1 of the said tender to the interested party;c.that an order of certiorari is hereby made removing to this court, for purposes of being quashed, and quashing the decision of the 1st respondent, dated and delivered on 7th April 2026, in PPARB Application No. 43 of 2026: Kalmar Finland OY vs. Accounting Officer, Kenya Ports Authority & another; Brookwood Technical Limited (Interested Party), and the consequential orders made therein;d.that an order of prohibition is hereby made barring the 2nd and 3rd respondents from executing, implementing or giving effect, in any manner whatsoever, to the said decision of the 1st respondent, dated 7th April 2026; ande.that each party shall bear their own costs. 96.Orders accordingly. DELIVERED VIA CTS, DATED AND SIGNED IN CHAMBERS, AT MILIMANI, NAIROBI, ON THIS 28TH DAY OF MAY 2026.W MUSYOKAJUDGEMr. Abdirahman, Court Assistant.AdvocatesMr. Omolo, instructed by Sigano & Omolo LLP Advocates, for the applicant.Messrs. Robson Harris Advocates LLP, for the 2nd and 3rd respondents.Mr. Kinyua, instructed by Nyaanga & Mugisha, Advocates for the 1st interested party.