https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1465

Kalmar Finland OY v Public Procurement Administrative Review Board & 3 others (Civil Appeal E472 of 2026) [2026] KECA 1465 (KLR) (17 July 2026) (Judgment) Neutral citation: [2026] KECA 1465 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal E472 of 2026 W Karanja, HA Omondi & LM Njuguna, JJA July 17, 2026 Between Kalmar Finland Oy Appellant and Public Procurement Administrative Review Board 1st Respondent Accounting Officer, Kenya Ports Authority 2nd Respondent Kenya Ports Authority 3rd Respondent Amberton Holdings FZC 4th Respondent (Being an appeal from the Judgment and Decree of the High Court at Nairobi (W. Musyoka, J.) dated 28th May 2026 in HCC JR Case No. E118 of 2026) Judgment 1.This appeal arises from a public procurement dispute concerning a restricted tender, Tender No. KPA/039/2025-26/ES, issued by the 3rd respondent, the Kenya Ports Authority (KPA) through its accounting officer, the 2nd respondent. The subject matter of the tender was the supply, testing, and commissioning of fourteen (14) new Reachstackers. 2.A short background of the matter is necessary to place this appeal in proper perspective. On 23rd December 2025, the 3rd respondent issued a notice of intention to procure 14 new Reachstackers through a restricted tender. The process was strictly limited to four prequalified Original Equipment Manufacturers (OEMs) whose machinery was already in active use at the port: Kalmar, Sany, Hyster, and ZPMC. Under Clause 16.2 of the tender document, these prequalified OEMs were permitted to participate either directly or by authorizing an agent to bid on their behalf. 3.On 28th January 2026, KPA officially dispatched invitations to tender. Four bids were submitted under the respective manufacturing lines by Kalmar, Sany, Hyster, and ZPMC. Shanghai Port Machinery Heavy Industries Co. Ltd (the OEM for the ZPMC brand) chose to be represented by its authorized agent, Amberton Holdings FZC,the 4th respondent. 4.Following evaluation, the appellant’s bid was disqualified at the financial evaluation stage due to deviations in its pricing schedule. Specifically, the appellant altered the pre-set quantity of Reachstackers in a section of the financial schedule from “14” down to “1”. 5.Three bidders were found legally and technically responsive.The 4th respondent emerged as the lowest responsive evaluated bidder, having submitted a bid of USD7,314,142.00 compared to the appellant’s bid of USD5,830,219.54. The tender was consequently awarded to the 4th respondent. The appellant was notified of the outcome through a notification of intention to award and a letter of regret dated 3rd March 2026. 6.Aggrieved by the disqualification, the appellant moved to the Review Board in Request for Review No. 42 of 2026. On 7th April 2026, the Review Board rejected the challenge and upheld the award. 7.The appellant being dissatisfied with that outcome subsequently moved to the High Court by way of Judicial Review Summons No. E118 of 2026. The High Court (Musyoka J.) heard the judicial review summons and dismissed it on 28th May 2026 after finding that the high threshold required for the grant of judicial review orders had not been met. 8.In the judgment, the learned Judge emphasized that a judicial review court does not sit as an appellate body to re-evaluate the technical merits of commercial bids or substitute its own opinion for that of the procuring entity. The Judge held that the court’s role is strictly limited to examining the legality, rationality, and procedural fairness of the decision-making process. The Judge found that both KPA and the PPARB followed the law, meaning there was no basis for the court to interfere under the standard of Wednesbury unreasonableness. 9.On whether the appellant’s errors were material deviations and not minor slips, the learned Judge found that the appellant’s pricing schedule modifications were severe and went to the very heart of the contractual scope and that changing the hardcoded quantity from 14 Reachstackers down to 1 was a major material deviation. The Judge held that if KPA had tried to fix this error by multiplying the single-unit price by 14, the appellant’s total tender sum would have shifted dramatically and because a global bid price cannot be altered after the tender opens, the Judge ruled that the appellant’s bid was fundamentally defective and legally un-evaluatable. 10.The Judge found that KPA had no legal authority to proactively clarify the errors as it could not use Section 81 of the Public Procurement and Asset Disposal Act to save the appellant’s bid. The Judge ruled that allowing a bidder to fix a defective financial schedule after the public opening of sealed bids would give them an unfair competitive advantage. It would allow them to rewrite their bid based on what their competitors quoted which violates the constitutional requirement for an equitable and transparent procurement system. 11.On the question whether agent participation under Section 102 was lawful, the learned Judge found that the 2020 Procurement Regulations had indeed been declared unconstitutional in December 2025 and could not be used. However, the learned Judge was of the view that Amberton Holdings FZC did not need to invoke those regulations to participate in the tendering, because Amberton provided a valid Manufacturer’s Authorization Form from the prequalified manufacturer (ZPMC) under standard tender terms, and they were a lawful extension of an invited candidate. The Judge ruled that a restricted tender does not bar an invited OEM from bidding through a legally authorized agent. 12.In redefining value for money under Article 227 of the Constitution, the Judge held that there was no automatic right for the lowest bid and rejected the appellant’s argument that being the lowest bidder by USD1,483,922.46 automatically guaranteed them the contract under the Constitution. 13.The learned Judge concluded that responsiveness is mandatory and held that value for money cannot be extracted from a non- responsive bid. Public funds are only protected when contracts are awarded to bidders who fully comply with the technical, legal, and operational frameworks established in the tender documents. 14.It is against that judgment that the present appeal has been brought. 15.In its Memorandum of Appeal dated 4th June 2026 the appellant faults the learned Judge on sixteen grounds as follows: that the learned Judge erred in law and in fact: and violated the appellant’s right to a fair hearing under Articles 47 and 50(1) of the Constitution and the rules of natural justice; by writing and delivering his Judgment on 28th May 2026 without considering the appellant’s written submissions, which had been filed and served, thereby determining the Originating Motion on a partial record and in breach of the audi alteram partem rule; by abdicating his supervisory jurisdiction in judicial review when, on the central and contested question of the Interested Party’s eligibility, he held that he was “bound to trust the position taken by the 1st respondent” thereby deferring to the very tribunal whose decision was impugned instead of independently reviewing it; in failing to find that the 1st respondent acted ultra vires section 82(1) of the Public Procurement and Asset Disposal Act when, at paragraph 133 of its decision, it recomputed the appellant’s line-item figure of USD 62,306.89 into a notional sum of USD 872,296.46 and relied on that self-generated figure to anchor its finding of “material deviation”, the tender sum being by statute absolute and final and not subject to correction, revision, adjustment or amendment by any person or entity, and what section 82(1) forbids directly not being capable of being achieved indirectly under the guise of an “assumption” or hypothetical correction; in describing the 1st respondent’s recomputation as a mere “evaluative” exercise rather than a prohibited correction of the tender sum, and consequently in failing to find that the resulting finding of “material deviation” was a nullity; in failing to find that the 1st respondent departed, without any or any adequate reasons, from its own settled jurisprudence that the Form of Tender is “sacrosanct”; in holding that the appellant’s entry of “1” instead of “14” in a single cell of the Price Schedule was a material deviation going to the core of the tender, when the bid was internally consistent and stated an unambiguous final sum for fourteen (14) reachstackers, such a typographical error being a minor deviation or oversight protected by section 79(2) of the Public Procurement and Asset Disposal Act; in treating section 81 of the Act as a wholly discretionary power, and in failing to consider the Appellant’s specific submission, and the 1st respondent’s own contrary jurisprudence, that the procuring entity ought to have sought clarification of any ambiguity before disqualifying the appellant’s bid; in holding that Regulation 89(8) of the Public Procurement and Asset Disposal Regulations, 2020 was “wholly irrelevant”, and in relying on the 1st respondent’s untested assertion to avoid the binding effect of the declaration that the said Regulations are unconstitutional, null and void ab initio; in failing to find that the 1st respondent contradicted itself, and acted ultra vires its own jurisdictional ruling; by declining jurisdiction over the constitutionality of Regulation 89(8) on grounds of limitation at paragraph 166 while proceeding to pronounce on its merits at paragraph 167; in finding the Interested Party eligible to participate in a tender expressly restricted to four named Original Equipment Manufacturers (Sany, Hyster, ZPMC and Kalmar), when the Interested Party is a trading intermediary based in the Umm Al Quwain Free Trade Zone and neither one of the said original equipment manufacturers nor a local agent as contemplated in the tender, and in failing to find that such an award defeated the stated rationale of the restricted tender and Article 227(1) of the Constitution; in reversing the burden of proof by requiring the appellant to prove that the Interested Party had no local presence in Kenya, and in treating the deponent’s Mombasa address as proof of compliance with Clause 16.2(b) of the tender document, when the onus of demonstrating eligibility lay upon the bidder and the procuring entity; in upholding the 1st respondent’s finding, taken by judicial notice and unsupported by any evidence, that Shanghai Port Machinery Heavy Industries Co. Limited is the manufacturer behind the “ZPMC” trade name, in direct contradiction of the Interested Party’s own concession, recorded at paragraph 62 of the impugned decision, that the matter required cogent proof; in failing to find that the 1st respondent misapplied section 167(1) of the Act by fixing 23rd December 2025 or 28th January 2026, rather than the date the breach crystallised upon the award of 3rd March 2026, as the operative date for the computation of time; in failing to find the impugned decision irrational and unreasonable in that the 1st respondent penalised the appellant’s single typographical entry while accepting, without scrutiny, the Interested Party’s nil entries against Items 2 and 3 of the Price Schedule, contrary to the requirement that the responsiveness criteria be applied uniformly and consistently to all bidders; in confining himself to a review of process and declining to undertake a merit review, notwithstanding that the Appellant pleaded violations of Articles 47 and 227 of the Constitution and section 7 of the Fair Administrative Action Act, which the Supreme Court has held permits and indeed requires a measure of merit analysis and in upholding a decision that occasions a quantifiable loss of approximately USD 1,483,922.46 to the public purse by displacing the Appellant’s responsive and substantively lowest bid with the costlier bid of a trading intermediary, contrary to the value- for-money and competitiveness commands of Article 227(1) of the Constitution and section 3 of the Public Procurement and Asset Disposal Act. 16.The appellant urged us to allow the appeal and sought orders, inter alia, that; the judgment and Decree of Hon. Mr. Justice W. Musyoka delivered on 28th May 2026 in Nairobi High Court Judicial Review Case No. E118 of 2026 be and are hereby set aside; to allow the appellant’s Originating Motion dated 20th April 2026 and grant the orders sought therein in their entirety; an order of certiorari do issue to remove into this Court and quash the decision of the 1st respondent dated 7th April 2026 in PPARB Application No. 42 of 2026 and the consequential award of Tender No. KPA/039/2025-26/ES to the Interested Party; a declaration be and is hereby issued that the Interested Party was ineligible to participate in Tender No. KPA/039/2025-26/ES; a declaration be and is hereby issued that the appellant’s tender was substantially responsive within the meaning of section 79 of the Public Procurement and Asset Disposal Act; and that the court directs that each party bears its own costs. 17.The appeal was heard on 8th July 2026 on a virtual platform.Parties had filed written submissions. Those of the appellant are dated 30th June 2026; those for the 1st respondent are dated 24th June 2026, those for the 2nd and 3rd respondents are dated 30th June 2026 and the supplementary submissions filed with leave of this Court are dated 3rd July 2026 and those of the 4th respondent are dated 30th June, 2026. At the plenary virtual hearing, Mr. Justus Omollo, learned counsel, appeared for the appellant; Mr. Idris Ali, appeared for the 1st respondent, Mr. Edwin Mukele teaming up with Ms. Elizabeth Onyango appeared for the 2nd and 3rd respondents while Mr. Sanjeev Khagram appeared for the 4th respondent. 18.Counsel relied on their written submissions, orally highlighted them and engaged with the Court on issues in which the Court sought clarification. 19.With regard to the scope of judicial review and judicial abdication, the appellant contended that the scope of judicial review in Kenya has fundamentally expanded under Article 47 of the Constitution to encompass aspects of merit review rather than just procedural technicalities. The appellant stated that this Court in Okoth & Kiplangat Advocates versus the Public Procurement Administrative Review Board Civil Appeal E401 of 2026 has settled the issue. It was stated that the central issue was whether Amberton Holdings FZC, a trading intermediary from a UAE Free Trade Zone was eligible for a tender strictly restricted to four named Original Equipment Manufacturers (OEMs). 20.The appellant contended that the learned Judge held that he was “bound to trust the position taken by the 1st respondent [PPARB].” The appellant submitted that this statement represents a wholesale abdication of judicial responsibility and the antithesis of the court’s supervisory function. Rather than independently assessing whether the decision-maker acted lawfully, rationally, and fairly, the Judge simply deferred to the tribunal whose very decision was being challenged.Reliance was placed on Suchan Investment Limited -vs- Ministry of National Heritage & Culture & 3 others [2016] KECA 729 (KLR) for the proposition that the Court of Appeal’s binding precedent that Article 47 and the Fair Administrative Action Act implicitly shifted judicial review to include merit-based assessments, requiring courts to independently evaluate facts and reasons.Further the appellant relied on Mbogo -vs- Shah as mentioned contextually within the Suchan dictum as a pointer toward the requirement for rationality, proportionality, and reason-giving in administrative decisions. With regard to the unlawful recomputation of the tender sum, the appellant submitted that Section 82(1) of the Public Procurement and Asset Disposal (PPAD) Act, provides in unequivocal mandatory terms that:“The tender sum as submitted and read out during the tender opening shall be absolute and final and shall not be the subject of correction, revision, adjustment or amendment in any way by any person or entity.” 21.It was contended that the appellant’s final tender sum was recorded in the minutes of 11th February 2026 as USD5,830,219.54 CIF Mombasa for the supply, testing and commissioning of fourteen (14) reachstackers. Further, it was stated that at paragraph 133 of its decision, the PPARB took a secondary line-item figure of USD 62,306.89 which the appellant contended was the total package cost for strategic back-up spares for all for all fourteen reachstackers which the appellant rebranded as a “unit price” for one reachstacker, multiplied it by fourteen, and generated a notional figure of USD872,296.46. It was contended that this figure appears nowhere on the face of the appellant’s bid. The appellant contended that the Board then relied on its own arithmetical creation as the evidentiary foundation for its finding of “material deviation.” 22.According to the appellant, the learned Judge erroneously labeled this as a permissible “evaluative” exercise rather than a correction of the tender sum. It was contended that the classification is legally unsound and that the prohibition in section 82(1) operates regardless of the label attached to the exercise. It was stated that what Parliament has forbidden directly cannot be accomplished indirectly under the guise of an “assumption” or “hypothetical correction”. Reliance was placed in Macfoy -vs- United Africa Co. Ltd [1961] 3 All ER 1169: for Lord Denning’s famous maxim that “out of nothing, nothing comes,” meaning that an act or decision done without jurisdiction is a complete nullity. 23.It was submitted that additionally, PPARB had itself held in Dignity Traders Limited -vs- Kenya Maritime Authority (Review Application No. 104 of 2022) that section 82 of the PPAD Act must prevail and that the tender sum must remain final with no opportunity for correction whatsoever. It was stated that PPARB’s departure from its own binding jurisprudence in the impugned decision was itself an error of law. 24.The case of Kanyareh Investment Company Limited -vs- The Accounting Officer, Kapsabet Girls High School & Others (PPARB Application No. 118 of 2024) was relied on to demonstrate that the Board has previously ruled that the Form of Tender is completely sacrosanct and cannot be altered or taken lightly. The appellant thus contended that the recomputation at paragraph 133 of the Board’s decision and the consequential finding of “material deviation” are a nullity and ought to be set aside. 25.As to whether the learned Judge erred in law in failing to find that the typographical entry of “1” instead of “14” in a single cell of the Price Schedule was a minor deviation or oversight protected by section 79(2) of the PPAD Act, it was submitted that the appellant made a clerical typo by entering a “1” instead of a “14” in a single spreadsheet cell in column four, item 5 of the Price Schedule. It was contended that the total cost for that section (USD62,306.89) was perfectly accurate, fully consistent with Table 3 of the bid, and correctly integrated into the final Form of Tender. 26.The appellant maintained that this clerical slip was a minor error of form, not substance, and did not grant the appellant any unfair competitive advantage. It was contended that under Section 79(2) of the PPAD Act, minor errors and oversights that do not materially alter the scope, quality, performance, or competitive playing field must be protected to ensure substance prevails over rigid form. The appellant placed reliance on Republic -vs- PPARB; Arid Contractors & General Supplies (Interested Party) Ex Parte Meru University of Science & Technology [2019] KEHC 1935 (KLR) to show that a bona fide mistake should not automatically disqualify a bidder because substance must always prevail over form. 27.With regard to the purposive approach to bid responsiveness, the case of Allpay Consolidated Investment Holdings (Pty) Ltd and Others -vs- Chief Executive Officer, South African Social Security Agency and Others [2014] ZACC 12 was relied on. The persuasive authority supports shunning overly rigid procurement frameworks that elevate bureaucratic form over functional substance. See also Minister of Social Development and Others -vs- Phoenix Cash & Carry Pmb CC [2007] ZASCA 26: a persuasive authority from the Supreme Court of Appeal of South Africa for the proposition that substance should superceded form. 28.In conclusion, it was contended that the learned Judge’s holding that the typographical error was a material deviation going to the core of the tender contradicts section 79(2) of the PPAD Act and the principles of Article 227(1) of the Constitution as well as ITT 28.2 of the tender document. It was stated that it constitutes a clear error of law warranting the intervention of this Court. 29.On whether the procuring entity ought to have sought clarification of any ambiguity before disqualifying the appellant’s bid, the appellant submitted that Section 81 of the PPAD Act creates an active statutory duty for a procuring entity to seek written clarification from a tenderer to resolve visible ambiguities during evaluation. It was contended that instead of utilizing this statutorymechanism to ask the appellant about the single-cell entry, the procuring entity mechanically disqualified the bid.The appellant submitted that this abrupt dismissal violated the appellant’s legitimate expectation that KPA would comply with its statutory clarification obligations before acting to adversely affect its rights.Reliance was placed on Dignity Traders Limited -vs- Kenya Maritime Authority (supra) to demonstrate that the PPARB had previously ruled that upon finding an ambiguity, a procuring entity is legally obliged to seek written confirmation from the applicant before a lawful disqualification can be made. 30.As to whether the learned Judge erred in law in failing to find that the 1st respondent contradicted itself, and acted ultra vires its own jurisdictional ruling, by declining jurisdiction over the constitutionality of Regulation 89(8) on grounds of limitation while proceeding to pronounce on its merit. The appellant pointed out a glaring structural error within paragraphs 166 and 167 of the PPARB’s impugned decision. At paragraph 166, the Board officially declined jurisdiction to rule on the constitutionality of Regulation 89(8) due to statutory limitation barriers. However, in the very next paragraph (167), the Board proceeded to issue a substantive ruling pronouncing on the actual merits of that exact regulation. The appellant submits that once a tribunal declares itself without jurisdiction, any subsequent pronouncement is absolute nullity and ultra vires and that the learned Judge erred by failing to recognize this self-contradiction and that the resulting nullity was an error of law. 31.As to whether the learned Judge erred in law and in fact in finding the 4th respondent eligible to participate in a tender expressly restricted to four named Original Equipment Manufacturers. It was submitted that the tender was explicitly restricted to four named OEMs currently operating at the Port namely Sany Marine Heavy Industry Company Limited, Hyster Yale Group, Shanghai Port Machinery Heavy Industries Co. Limited (ZPMC) and Kalmar Global to enforce standardisation, interchangeability of major parts, and lower training costs. 32.It was submitted that Amberton Holdings, is incorporated in the Umm Al Quwain Free Trade Zone in the United Arab Emirates and that it admitted before PPARB, that it is merely a trading entity incorporated in a UAE Free Trade Zone, not an OEM. It was contended that none of the four named OEMs bears the name “Amberton Holdings FZC.” It was argued that the 4th respondent’s participation in the tender was, therefore, from its inception a violation of the express restriction imposed by the procuring entity. 33.The appellant submitted that while the High Court Judge held Amberton was eligible via a Manufacturer’s Authorisation letter, two fatal objections arose: First, that the letter was dated 5th February, 2026, eight days after the invitation to Tender and well outside the mandatory 3-day window required for OEMs to declare their intent to bid through an agent and secondly, the PPARB and High Court erroneously took judicial notice of the corporate relationship between the ZPMC trade name and the manufacturer without any actual evidence, violating Amberton’s own concession that this was a question of fact requiring cogent proof. 34.It was submitted that the learned Judge committed a fundamental error of law by reversing the burden of proof, requiring the appellant to prove Amberton lacked local presence rather than making Amberton prove it met the strict tender restrictions. 36.As to whether the learned Judge erred in law and in fact in failing to find the impugned decision irrational and unreasonable, contrary to the requirement that the responsiveness criteria be applied uniformly and consistently to all bidders.The appellant submitted that the PPARB and the High Court applied a double standard for the reasons that while the appellant was heavily penalized and disqualified for a single clerical typo that had zero impact on its final bid price, the Board and the court completely excused Amberton Holdings FZC for leaving entirely blank “nil values” against Item 2, cost of testing and commissioning and Item 3, on cost of tools and special tools in the price schedule. 37.The appellant further contended that the Board excused Amberton on the assumption that those costs were included in the equipment cost, yet refused to apply the same common-sense standard to Kalmar’s minor cell typo. The appellant submitted that applying hyper-strictness to one bidder and absolute indulgence to another is the definition of irrational, unequal, and unreasonable administrative action. Reliance was placed on Republic -vs- Public Procurement Administrative Review Board & 2 others Ex-Parte Akamai Creative Limited [2016] KEHC 6149 (KLR): to establish that when an administrative body selectively enforces criteria, misdirects itself on points of law, or completely omits relevant parallel facts, such as Amberton’s missing entries, the resulting decision becomes entirely unlawful. 38.In conclusion we were urged to allow the appeal in its entirety and grant the orders sought. 39.The 1st respondent opposed the appeal. On the Judge’s failure to consider written submissions, it was contended that the appellant complains that its right to a fair hearing under Articles 47 and 50(1) of the Constitution was violated because the Judge delivered judgment on May 28, 2026, without considering its written submissions filed on May 25, 2026.It was submitted that the appellant missed multiple timelines. The original deadline was 13th May 2026 and that an extension was granted until 18th May 2026, which the appellant failed to meet, ultimately filing three days late. 40.It was contended that the High Court Judge noted that the late submissions were only brought to light on 26th May 2026 after the judgment was already written. It was submitted that the Judge explained that pushing the delivery date back was impossible due to upcoming public holidays on 28th May 2026 and 2nd June 2026 and the strict 45-day statutory limitation period under Section 175(1) of the Act. 41.It was contended that excluding late submissions is part of lawful court case management and that procedural fairness is flexible and does not give a party the right to dictate court timelines. Reliance was placed in Judicial Service Commission -vs- Mutava & Another (Civil Appeal 52 of 2014) [2015] KECA 741 (KLR). It was contended that no prejudice was suffered by the appellant because its late submissions were merely repetitive of its earlier pleadings, oral arguments, and affidavits. 42.With regard to ground 2 on the alleged abdication of supervisory jurisdiction, it was stated that the appellant’s claims that the High Court abdicated its jurisdiction by stating it was “bound to trust the position taken by the 1st respondent” regarding the 4th respondent’s eligibility, the 1st respondent contended that the statement is taken out of context as the Board is a specialized statutory tribunal with legal access to confidential procurement documents under Section 67(3)(e) of the Act that ordinary courts do not typically inspect. Further, it was submitted that judicial deference to specialized tribunals is well-established because courts should be hesitant to assume specific statutory discretion entrusted to expert boards. Reliance was placed on Kenya Pipeline Company Limited -vs- Hyosung Ebara Company Limited & 2 Others [2012] eKLR for the proposition that the High Court held that the Review Board, as a specialized statutory tribunal, is better equipped to make evaluative judgments on procurement matters, and the court should be hesitant to assume the statutory discretion entrusted to the Board. 43.It was further contended that the Judge did not blindly follow the Board; he independently reviewed all available material and found nothing to impeach the 4th respondent’s eligibility. 44.With regard to Grounds 3 and 4 on the alleged ultra vires correction of tender sum, the 1st respondent submitted that the appellant’s complaint was that the Board violated Section 82(1) of the Act by mathematically recomputing a line-item figure of USD62,306.89 into a notional sum of USD872,296.46 to find a “material deviation”. It was contended that the Board never altered or corrected the appellant’s final tender sum. It was argued that instead, the Board performed an evaluative calculation to demonstrate how the appellant’s alteration of the required quantity from 14 to 1 created internal inconsistencies that rendered the bid non-responsive under Section 28(1)(a) of the Act. 45.On ground 6, on the alleged material deviation, it was submitted that the appellant’s argument that entering “1” instead of “14” in the Price Schedule was a minor typographical error protected by Section 79(2) of the Act and that the learned Judge erred in holding it to be a material deviation going to the core of the tender, the 1st respondent contended that Regulation 74(2) of the Act establishes that errors in unit price, quantity, and subtotal constitute major deviations affecting the substance of a tender. 46.Further, it was submitted that the Board discovered two major deviations: adding an unauthorized “Column 7” in Table 3 indicating a total price of USD62,306.89 for all 14 Reachstackers, when the blank tender document required a unit price; and second, the appellant’s alteration of the Price Schedule to indicate a quantity of “1” instead of “14” for the back-up spares. It was stated that by indicating “1” instead of “14”, the appellant only quoted for back-up spares for 1 out of the requisite 14 Reachstackers. 47.It was further submitted that the learned Judge was correct to find that these deviations went to “the core of the tendering”. It was contended that a material deviation affects in a substantial way the scope, quality, or performance of the works; limits substantially the procuring entity’s rights; or, if rectified, would unfairly affect the competitive position of other bidders. 48.With regard to ground 7 on the alleged failure to apply Section 81, it was submitted that clarifications under Section 81 are designed to evaluate already responsive bids, not to give non- responsive bidders a backdoor opportunity to fix material errors.Reliance was placed on Republic -vs- Public Procurement Administrative Review Board & Another; Ex parte: Athi Water Service Board & Another [2017] KEHC 8315 (KLR). 49.On grounds 8 - 9 and 13 on regulation 89(8) and statutory limitation, it was contended that the constitutional challenge raised by the appellant was also completely time-barred under Section 167(1) of the Act. It was stated that the 14-day limitation clock begins running when the alleged breach crystallizes that being the publication of the Intention to Procure Notice on 23rd December 2025 or the issuance of the Invitation to Tender on 28th January 2026 and not when the final award is made. Reliance was made in Goldfield Insurance Brokers Limited -vs- Public Procurement Administrative Review Board & 2 Others (supra). 50.With regard to grounds 10, 11 and 12 on the eligibility and burden of proof, it was submitted that the appellant failed to satisfy the burden of proof to show the 4th respondent lacked local presence. Furthermore, that the Board’s finding that Shanghai Port Machinery Heavy Industries Co. Limited operates under the “ZPMC” trade name was a proper evidentiary finding based on the confidential tender record, not an unbacked assumption. 51.On ground 14 on the alleged Nil entries and unequal treatment, it was submitted that the 4th respondent’s nil entries did not violate any mandatory format, unlike the appellant’s unauthorized alterations to quantities and price tables. Further it was contended that this complaint is unsustainable for two reasons. First, the issue of the 4th respondent’s alleged nil entries was not raised before the Board in the appellant’s Request for Review. It was stated that this is a new issue being raised for the first time in the judicial review proceedings and secondly that even if the issue were properly before the court, the 2nd and 3rd respondents demonstrated that the 4th respondent’s nil entries did not depart from the prescribed Price Schedule format, whereas the appellant’s alteration of the quantity from “14” to “1” and its addition of an unauthorized Column 7 in Table 3 fundamentally altered the pricing structure. 52.On ground 15 on the failure to undertake merit review, it was submitted that judicial review is strictly confined to looking at the process of decision-making, not substituting the court’s opinion for the merits of the decision. Reliance was placed on Municipal Council of Mombasa -vs- Republic & Umoja Consultants Ltd [2002] eKLR. It was contended that the learned Judge was correct to confine himself to a review of process and that the appellant’s invocation of constitutional provisions and the Fair Administrative Action Act does not transform judicial review into an appeal on the merits. Counsel submitted further that the supreme Court’s jurisprudence on administrative law, to which the appellant refers has not abrogated the fundamental distinction between process review and merit review. Finally, it was stated that the High Court’s role in judicial review is to ensure that administrative decisions are made lawfully, rationally, and procedurally fairly not to substitute its own view of the merits for that of the decision-maker. It was contended that the learned Judge’s self-restraint was not an error; it was judicial discipline. 53.With regard to ground 16 on value-for-money loss, it was submitted that the appellant argues that disqualifying its lower bid resulted in a USD1,483,922.46 loss to the public purse. The 1st respondent contended that being the lowest bidder does not guarantee a contract if the bid is legally non-responsive. Further, that public procurement value-for-money is secured by uniform application of the rules, not by giving contracts to non-compliant bidders. 54.We are urged to dismiss the appeal with costs. 55.The 2nd and 3rd respondents opposed the appeal. On the alleged violation of the right to a fair hearing, it was submitted that the appellant claimed that the High Court violated its right to a fair hearing under Articles 47 and 50(1) by rendering its judgment on 28th May, 2026, without considering its late-filed written submissions. It was contended that the appellant missed its court mandated deadline to file its written submissions on 18th May 2026 and filed its submissions late on 25th May 2026 without seeking an extension or leave of the court. It was submitted that the right to a fair hearing does not justify or excuse procedural indolence or absolute disregard for statutory timelines. It was contended that written submissions are secondary aids to the court and do not override existing pleadings and evidence already properly on record. Reliance was placed in Osman Ali Mohammed -vs- Idow Trading Co Ltd & 2 others [2026] KECA 1106 (KLR) approving John Mathara Mwangi -vs- Consolidated Bank of Kenya Limited & 3 others [2024] KECA 250 (KLR)), for the proposition that the right to be heard is not a license for indolence; if a party fails to utilize an afforded opportunity, they cannot later complain of a denial of that right. 56.Counsel cited the case of Okiya Omtatah Okoiti & 3 others -vs- Cabinet Secretary for the National Treasury and Planning & 10 others [2023] KESC 69 (KLR) where the Supreme Court held that accepting submissions filed out of time without first seeking formal leave of the court is tantamount to sanctioning an illegality, and Attorney General -vs- Mohamed & another (Civil Appeal E113 of 2022) [2024] KEHC 8474 (KLR) and Daniel Toroitich Arap Moi -vs- Mwangi Stephen Muriithi & Another [2014] eKLR for the proposition that written submissions are only meant to guide legal arguments; they are not evidence and cannot substitute formal pleadings or affidavits. 57.On material deviation in the Price Schedule, it was submitted that the appellant contested the finding that entering “1” instead of “14” in its Price Schedule was a material deviation that made its bid non-responsive. It was submitted that under Section 79 of the Public Procurement and Asset Disposal Act (PPADA), a state organ can only award a contract to a fully conforming and responsive bid. Further, that altering the mandatory unit quantifications from 14 lots to 1 lot directly alters the core pricing substance of the bid and it cannot be excused as a minor deviation, because correcting it would fundamentally change the final tender price, thereby creating unfair competition against compliant tenderers. Reliance was placed on Sinopec International Petroleum Service Corporation -vs- Public Procurement Administrative Review Board & 3 others [2024] KECA 184 (KLR) which confirmed that public entities must only consider conforming/compliant bids, and that tender mandatory requirements are rigid constitutional and legal benchmarks that courts or review boards cannot disregard at a whim. 58.As to whether the learned Judge was correct in holding that the 1st respondent could not sanction the award of the subject tender to the appellant only on the basis that it had submitted a lower price bid, It was submitted that the appellant’s argument that the decision caused a public loss of USD1,483,922.46 by passing over its lower bid price could not hold because a lower price is irrelevant if the underlying bid is legally non-compliant. It was contended that procuring entities are legally prohibited from prioritizing a low price over structural and mandatory responsiveness.Reliance was placed in Republic -vs- Public Procurement Administrative Review Board & 2 others Ex- Parte Akamai Creative Limited Ex-Parte Central Kenya Fresh Merchants Limited [2016] KEHC 6149 (KLR) which reaffirmed that a procuring entity is legally obligated to consider all other technical and compliance facets of a tender, and cannot award a contract simply because it presents the lowest financial figure. 59.As to whether the allegation by the appellant at ground 14 constitutes novel issues which were neither pleaded nor canvassed in the request for review in PPARB No 42 of 2026, and thus could not be basis for determination, it was contended that the appellant raised a ground claiming that the 4th respondent entered “nil” values for certain items in its price schedule, alleging selective treatment. It was submitted that this allegation was completely missing from the original Request for Review - PPARB No. 42 of 2026 and was introduced late. It was stated that parties are strictly bound by their pleadings and that neither the High Court nor an appellate court has the jurisdiction to settle a novel dispute that was never formally pleaded or evaluated by the initial statutory tribunal. 60.Further it was submitted that substantively entering a permissible “nil” value reflects an internal pricing strategy where costs are consolidated into the main equipment price, which is entirely distinct from altering mandatory quantities. Reliance was placed in David Sironga ole Tukai -vs- Francis Arap Muge & 2 Others [2014] eKLR, for the proposition that courts are strictly bound by the formal pleadings of the parties, and deciding an issue outside those boundaries amounts to a denial of justice and speculative overreach. 61.On the supposed unlawful recomputation of tender sum by the 1st respondent of the appellant’s bid, it was contended that the appellant argued that the 1st respondent acted ultra vires Section 82(1) of the PPADA by recalculating or changing its bid sum from USD62,306.89 to USD872,296.46. It was submitted that the review Board did not alter the figures to overwrite the bid and that it performed an illustrative computation to demonstrate how changing the material quantity error from 1 to 14 would radically warp the total bid. It was submitted that this was an exercise of its statutory mandate under Section 28 of the PPADA to interrogate responsiveness and prove that the error was substantial and uncorrectable. 62.As to whether the learned Judge erred in failing to find that the procuring entity ought to have invoked section 81 of the PPADA to seek clarification before disqualifying the appellant’s bid, it was submitted that Section 81 of the PPADA states that an entity “may” seek clarification, denoting discretionary, non-mandatory power. It was contended that clarifications cannot be used to rewrite terms or cure blatant, substantive text alterations after tender closure, as that would undermine equal treatment and favor non- compliant bidders. Reliance was placed in Republic -vs- Public Procurement Administrative Review Board & Another Ex Parte Athi Water Service Board & Another [2017] KEHC 8315 (KLR) which held that where a bid’s content is plain on its face, there is no ambiguity requiring clarification; furthermore, corrections that modify the core terms of the tender are legally void. 63.On the eligibility of the 4th respondent and Regulation 89(8) of the Public Procurement and Asset Disposal Regulations, it was contended that the appellant challenged the eligibility of the 4th respondent - Amberton Holdings as an authorized agent of the manufacturer, and targeted the unconstitutionality of Regulation 89(8) of the PPAD Regulations. It was submitted that the 1strespondent evaluated confidential manufacturer authorizations under Section 67 of the PPADA and confirmed the 4th respondent was a validly authorized agent for the Original Equipment Manufacturer (OEM). It was contended that the constitutional challenge to Regulation 89(8) was raised outside the mandatory 14 - day statutory window under Section 167(1) of the PPADA and was thus time-barred. Further, it was submitted that substantively, it was irrelevant because the 4th respondent qualified on its own independent criteria as a validly appointed OEM agent. Reliance was placed in Goldfield Insurance Brokers Limited -vs- PPARB & 3 others (supra) for the proposition that procurement proceedings have rigid, strict statutory timelines and any challenge or review must be filed within 14 days of the alleged breach. 64.With regard to the extent of merit review in judicial review proceedings, it was contended that the appellant claimed that the High Court Judge erred by refusing to carry out an exhaustive analysis of the merits of the case. It was submitted that while modern administrative law allows some room to look at the substance of a case, judicial review cannot be warped into a full merit-based appeal. It was argued that technical procurement evaluation relies on expert bodies like the Review Board, and courts lack both the mandate and the layout of affidavit-only evidence to substitute their own factual preferences for those of the specialist statutory tribunal. Reliance was placed in Saisi & 7 others -vs- Director of Public Prosecutions & 2 others [2023] KESC 6 (KLR) where the Supreme Court warned that judicial review should never turn into a full-scale inquiry into the merits, as affidavit-based proceedings are poorly suited for solving complex, technical, or disputed factual issues. 65.In conclusion the 2nd and 3rd respondents submitted that the appeal is completely devoid of merit and should be dismissed with costs and relied in Rai & 3 Others -vs- Rai & 4 Others [2014] KESC 31 (KLR) for the proposition of the fundamental civil litigation principle that costs must follow the event. 66.The 4th respondent opposed the appeal. With regard to the submissions filed before this Court, it was submitted that the Court directed the appellant to file and serve its written submissions within 24 hours of 22nd June, 2026. That the appellant failed to comply, leaving the 4th respondent unable to respond effectively without facing extreme prejudice or engaging in a speculative exercise. Further it was contended that the appellant’s Record of Appeal does not comply with Rule 13 or Rule 89 of the Court of Appeal Rules 2022 as it completely lacks the trial Judge’s notes of the hearing, the certified typed transcript of the proceedings, and the Court’s certification order dated 22nd April 2026.We agree that counsel for the appellant may have committed several infractions in this appeal, including the late filing and service of the submissions, but in view of the stringent statutory timelines in this appeal, we decided to let the said infractions slide to enable us determine this appeal on merit. 67.In regard to ground 1 on the fair hearing claims, it was contended that the appellant’s claim that its right to a fair hearing was infringed is frivolous. It was submitted that the superior court granted the appellant ample time from 22nd April 2026, to 18th May 2026 to file its submissions, which it neglected to do and hence it cannot be heard to say that its rights to a fair hearing were infringed. 68.On ground 2 on eligibility and confidential documents, it was contended that the appellant misconstrues Paragraph 61 of the High Court judgment. The 1st respondent had perused confidential verification documents including a letter from Shanghai Port Machinery Heavy Industries Co. Ltd (ZPMC) and was technically competent to confirm the 4th respondent’s eligibility as an authorized agent. It was submitted that the letter from ZPMC at page 1683 of the record which was part of the confidential documents speaks for itself. 69.With regard to grounds 3 to 7 on merits vs. process in judicial review, the 4th respondent supports the 2nd and 3rd respondents’ stance that the learned High Court Judge did not err. It is submitted that judicial review is legally confined to evaluating the decision-making process, not conducting a merits assessment of the case. 70.With regard to grounds 8 to 12 on deference to specialized tribunals.It was submitted that The Public Procurement Administrative Review Board is a specialized statutory tribunal uniquely equipped to handle procurement disputes.It was contended that because the Board had exclusive access to the confidential documents to make its decision, its findings should not be lightly interfered with by the court.Reliance was placed in Kenya Pipeline Company Limited -vs- Hyosung Ebara Company Limited & 2 Others ( supra). 71.On grounds 13 to16 on statutory timelines and Jurisdiction, it was submitted that the appellant continues to illegally expand its grounds of appeal. It was stated that there is a strict statutory limitation period of 14 days from the notification of the award, or occurrence of the alleged breach to file a Request for Review, meaning the Court lacks jurisdiction to entertain delayed claims. Reliance was placed in Goldfield Insurance Brokers Limited - vs- Public Procurement Administrative Review Board & 3 Others (supra) in which this Court affirmed that a court has no jurisdiction to entertain a request for review out of the 14 days period prescribed by the Public Procurement & Asset disposal Act. 72.In conclusion we are urged to dismiss the appeal with costs of the Review Board, High Court, and Court of Appeal proceedings to be fully borne by the appellant. 73.We have carefully considered the Record of Appeal in its entirety, and the rival submissions of the parties both written and oral. Although several grounds have been advanced, we decipher the dispositive issues of this appeal to be the following:i.Whether the appellant’s right to a fair hearing was violated by the High Court’s exclusion of its late-filed written submissions;ii.Whether the High Court Judge abdicated his supervisory jurisdiction by failing to conduct a merit review of the tribunal’s decision;iii.Whether the appellant’s single-cell pricing entry constituted a minor typographical error under Section 79(2) or a material deviation that rendered the bid un-evaluatable andiv.Whether the 4th respondent was legally eligible to participate in a restricted tender explicitly confined to named Original Equipment Manufacturers. 74.On Issue I: Right to a fair hearing and late submissions. The appellant faults the learned Judge for delivering his judgment on 28th May 2026 without considering its written submissions, which were filed late on 25th May 2026.The record reveals that the appellant missed multiple timelines. The original deadline of 13th May 2026 was extended to 18th May 2026, a timeline the appellant failed to honor. Public procurement matters are bound by strict statutory timelines, specifically, the 45-day window for the High Court to determine judicial review under Section 175(1) of thePublic Procurement and Asset Disposal Act (PPADA). Written submissions are secondary aids and cannot override the court’s management of absolute statutory deadlines. 75.As this Court held in Osman Ali Mohammed -vs- Idow Trading Co Ltd & 2 others [2026] KECA 1106 (KLR), the right to be heard is an opportunity cleanly afforded, not a license for procedural indolence. Written submissions are secondary aids to the court; they are not pleadings or evidence. The appellant decided not to abide by the court’s directions on the filing of the submissions. He cannot seek to benefit from his non-compliance or defiance to court’s directions, which was deliberate and inexcusable. The appellant’s failure to utilize the afforded time window cannot be cast as a violation of the audi alteram partem rule. We find no merit in this ground. See also Judicial Service Commission -vs- Mutava [2015] KECA 741 (KLR): Affirming that procedural timelines are critical to proper case management. 76.On issue (ii) whether the High Court Judge abdicated his supervisory jurisdiction by failing to conduct a merit review of the tribunal’s decision. The appellant contends that the learned trial Judge abdicated his supervisory role by stating he was “bound to trust the position taken by the 1st respondent” regarding technical evaluations. He contends that judicial review mandates a merit review. We note that the High Court was not exercising its original jurisdiction in this matter. It was dealing with an appeal from the decision of the review Board. It could only deal with the issues that had been addressed by the review Board relying on the evidence and documents before the court. The review Court was privy to some confidential documents which the learned Judge had no access to. The Board had scrutinized the said documents and considered them before arriving at its decision. The Review Board is a specialized statutory tribunal equipped with the technical expertise and statutory access to procurement records under Section 67 of the Public Procurement and Asset Disposal Act (PPADA). The Review Board was, definitely, better equipped to deal with the technical issues than was the Court. We find that the learned Judge did not abdicate its duty as stated by the appellant. 77.This Court anchors its position on Kenya Pipeline Company Limited -vs- Hyosung Ebara Company Limited & 2 Others (supra) which established that ordinary courts must exercise judicial restraint and display deference to specialized expert tribunals on complex factual choices. Our finding is that the learned Judge did not blindly defer, he satisfied himself that the path followed by the Board was lawful and rational. This ground fails. 78.On application of section Section 81 to seek clarification of the bid this Court in Sinopec International Petroleum Service Corporation -vs- Public Procurement Administrative Review Board & 3 others [2024] KECA 184 (KLR), held that mandatory procurement rules are rigid statutory benchmarks that cannot be waived or adjusted at a whim. Clarifications cannot be used as a backdoor mechanism to let a non-responsive bidder rewrite an un-evaluatable bid. We hold that the deviation by the appellant was material, and the disqualification was lawful. Discretionary clarification under Section 81 cannot be weaponized to allow a non-responsive bidder to rewrite a defective bid. 79.Further to the issue above, it would be remiss on our part not to address the appellant’s further challenge to impugn the responsiveness of the 4th respondent’s financial proposal, asserting that its entry of a ‘Nil’ value in respect of local clearance and incidental costs constituted a failure to bid on all items, thereby violating the principle of equal treatment. 80.We find this argument legally tenuous. A ‘Nil’ or ‘Zero’ entry is fundamentally distinct from a blank omission. A blank space invites ambiguity and creates the risk of post-tender manipulation. A ‘Nil’ entry, conversely, is an absolute, binding commercial commitment to perform that specific line-item service at no cost to the procuring entity. As observed in MFI Document Solutions Limited -vs- Public Procurement Administrative Review Board & 2 others [2017] eKLR: The High Court affirmed that entering “Nil” or “0.00” in a financial bid schedule indicates that the cost of that specific item has been factored into other global costs or is being offered for free. It does not constitute a failure to quote, provided the total tender sum remains clear and binding. 81.Our finding is that public procurement laws do not outlaw aggressive or highly competitive pricing strategies, provided the global tender sum is absolute. The 4th respondent chose to absorb those incidental operational costs into its overarching financial matrix. KPA stood to benefit from this zero-rated line item without exposure to future financial claims. Consequently, the 1st respondent was correct in holding that the 4th respondent’s ‘Nil’ entry was structurally and financially responsive. 82.On issue 4, as to whether the 4th respondent was legally eligible to participate in a restricted tender explicitly confined to named Original Equipment Manufacturers. The appellant argues that because the 4th respondent is a foreign trading entity operating from a United Arab Emirates free trade zone, it was ineligible to participate in a tender strictly restricted to four named OEMs and that it barred foreign trading intermediaries. 83.It is our view that this argument overlooks the express provisions of Clause 16.2 of the specific tender document which explicitly provided a mechanism for invited manufacturers to participate via an authorized proxy, provided a valid Manufacturer’s Authorization Form was supplied. The prequalified OEM, Shanghai Port Machinery Heavy Industries/ZPMC, executed a valid Manufacturer’s Authorization Form empowering Amberton Holdings FZC to bid as its proxy. Evaluating Amberton was legally equivalent to evaluating the invited brand itself. This clause thus legally enabled Amberton Holdings FZC to validly participate in the tender as an authorized representative agent for the prequalified manufacturer, Shanghai Port Machinery Heavy Industries Co. Limited (ZPMC). 84.Furthermore, the appellant’s collateral attack on the constitutionality of the procurement regulations was raised outside the mandatory 14-day statutory timeline provided under Section 167(1) of the PPADA. In line with Goldfield Insurance Brokers Limited -vs- Public Procurement Administrative Review Board & 3 Others [supra], statutory procurement timelines are strict matters of jurisdiction. Any challenge filed outside these operational windows leaves the forum completely without jurisdiction to entertain the claim. We hold that the 4th respondent was fully eligible to take part in the tender having been legally appointed. Nothing hence turns on this ground. 85.With regard to the issue on value for money pursuant to Article 227 of the Constitution, the appellant strongly pleaded that displacing its lower bid resulted in a loss of USD1,483,922.46 to the public purse, violating Article 227(1) of the Constitution. We must state with finality that value for money cannot be extracted from a non-responsive bid. Financial competitiveness can only be legally considered among bids that have cleanly passed the preliminary and technical responsiveness benchmarks. To force a public entity to award a contract based on a low price at the expense of compliance, operational viability, and parts interchangeability would completely undermine the integrity of national public economic interests. 86.In the end, for all the reasons we have given above, we find no error in the reasoning or findings of the learned High Court Judge. This appeal is entirely devoid of merit and is hereby dismissed in its entirety. The judgment of the High Court (W. Musyoka, J.) delivered on 28th May 2026 in HCCC Judicial Review Case No. E118 of 2026 is hereby affirmed. 87.The costs of this appeal and of the proceedings in the High Court shall be borne by the appellant. DATED AND DELIVERED AT NAIROBI THIS 17TH DAY OF JULY, 2026.W. KARANJA..................................JUDGE OF APPEALH. A. OMONDI..................................JUDGE OF APPEALL. NJUGUNA..................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.