https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1500

Kalmar Finland OY v Public Procurement Administrative Review Board & 5 others (Civil Appeal E089 & E090 of 2026 (Consolidated)) [2026] KECA 1500 (KLR) (24 July 2026) (Judgment) Neutral citation: [2026] KECA 1500 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Civil Appeal E089 & E090 of 2026 (Consolidated) F Tuiyott, KI Laibuta & GW Ngenye-Macharia, JJA July 24, 2026 Between Kalmar Finland OY Appellant and Public Procurement Administrative Review Board 1st Respondent The Accounting Officer, Kenya Ports Authority 2nd Respondent Kenya Ports Authority 3rd Respondent Mol Cy Nv 4th Respondent Wood Creek Limited 5th Respondent As consolidated with Civil Appeal E090 of 2026 Between Kalmar Finland Oy Appellant and Public Procurement Administrative Review Board 1st Respondent The Accounting Officer, Kenya Ports Authority 2nd Respondent Kenya Ports Authority 3rd Respondent MOL CY NV 4th Respondent Wood Creek Limited 5th Respondent (Being appeals from the Judgment and Decree of the High Court of Kenya at Mombasa (Jairus Ngaah, J.) delivered on 15th May 2026 in Judicial Review Case No. E009 of 2026 and Judicial Review Case No. E010 of 2026 respectively) Judgment 1.The instant appeals arose from two separate judgments of the High Court of Kenya at Mombasa (J. Ngaah, J.) delivered on 15th May 2026 in determination of Judicial Review Case Nos. E009 and E010 of 2026, the first of which was filed jointly by the 2nd and 3rd respondents (the Accounting Officer, Kenya Ports Authority and the Kenya Ports Authority – the procuring entity) in JR No. 009 of 2026; and the second of which was filed by the 4th respondent (Mol Cy N.V.) in JR No. E010 of 2026. 2.The two judicial review applications challenged the decision of the 1st respondent (the Public Procurement Administrative Review Board – “the PPARB”) made in determination of a request by the appellant (Kalmar Finland OY) seeking review of the 2nd and 3rd respondents’ decision to award the tender for the supply, testing and commissioning of Terminal Tractors to the 4th and 5th respondents (Mol CY N.V. and Wood Creek Limited) following evaluation of the tenders submitted by the four bidders (namely the appellant, the 4th and 5th respondents, and Ternberg Benschop B.V). The four bids were submitted in response to an invitation to tender (ITT) addressed to each of them in a letter dated 24th December 2025 titled “INVITATION TO TENDER RE: TENDER NO. KPA/036/2025-26/ES: SUPPLY, TESTING AND COMMISSIONING OF TERMINAL TRACTORS” (the invitation). 3.The invitation, which was by way of a restricted tender, was accompanied by a standardized tender document specifying, inter alia: the tendering procedures; supply requirements; and the conditions of contract and contract forms. 4.In response to the invitation, the four bidders submitted their respective bids within the specified period, to wit, “… within three days of receipt of [the] invitation”. 5.Following the evaluation process, the 2nd and 3rd respondents notified the 4th and 5th respondents, by a letter dated 13th February 2026, that they had been awarded Lot 1 and Lot 2 of the tender respectively. 6.By a letter of even date, the appellant was also notified of the 2nd and 3rd respondents’ decision to award the tender to the 4th and 5th respondents; and that its bid was not successful, and had been found non-responsive at the preliminary evaluation stage on account of four reasons expressed thus:“i.You submitted certificates for ISO 9001:2015, ISO 14001:2015, and ISO 45001:2018; however, the certificates did not clearly indicate that the management systems are certified for design and manufacturing processes, as required (Pages 127-128). Instead, you provided certificate numbers 10637448 (ISO 9001:2015 - Kalmar Finland OY for sales of equipment) and certificate identity No. 10618883 (ISO 9001:2015, 14001:2015, ISO 45001:2018 - Kalmar Industries (China) Co. Ltd – for assembling equipment).ii.You did not provide a current Tax Compliance Certificate (Pages 13-15).iii.The Tender Information Form was not duly completed because you did not fill beneficial ownership form. Further, you listed M/s Power Parts (K) Ltd as the authorized representative, this contradicted the Power of Attorney, which appointed Mr. Jinesh Mania as the true and lawful attorney (Page 34).iv.You did not provide a separate signed and stamped schedule of deviations by the manufacturer, as required for the following areas which had deviated from the tender specifications provided in the tender document under Clause 2.2(5(xiv)):…” 7.Dissatisfied with the 2nd and 3rd respondents’ decision, the appellant sought administrative review by the 1st respondent pursuant to section 167 of the Public Procurement and Asset Disposal Act, 2015 (the Act). 8.The appellant’s Request for Review dated 26th February 2026 was supported by the annexed affidavit of one Vishal Soni sworn on 26th February 2026 essentially deposing to a whopping 29 grounds on which the administrative review was sought. Notably, the affidavit was sworn on behalf of the appellant under and by virtue of a Deed of Authority granted to the deponent on 23rd February 2026. In the application, the 2nd and 3rd respondents sought the following orders:“ 1.The Respondents’ Notification referenced PSM/CTC/1/01 (036) VOL. 1 dated 13th February 2026 declaring the Applicant’s bid non-responsive in Tender Number KPA/036/2025-26/ES for Supply, Testing and Commissioning of Terminal Tractors be and is hereby annulled and set aside. 2.The Respondents’ decision and notifications of successful bid to the 1st and 2nd Interested Parties in respect to the Tender Number KPA/036/2025-26/ES for Supply, Testing and Commissioning of Terminal Tractors be and are hereby annulled and set aside. 3.In exercise of the Review Board’s powers under section 173(c) of the Public Procurement and Asset Disposal Act, the Review Board be pleased to substitute the 1st Respondent’s decision declaring the Applicant’s bid non-responsive and to declare and hold that the Applicant’s tender in Tender Number KPA/036/2025-26/ES for Supply, Testing and Commissioning of Terminal Tractors was and is substantially responsive on the grounds that the Applicant's tender met the requirements of the tender document without material deviation, reservation, or omission, and that the grounds relied upon by the procuring entity to disqualify the Applicant's bid did not constitute material deviations as defined in section 79(1) of the Public Procurement and Asset Disposal Act and ITT Clause 28. 2 of the tender document. 4.The Accounting Officer of the procuring entity be and is hereby directed to re-admit the Applicant’s bid for technical and financial evaluation and comparison alongside other bidders whose bids are substantially responsive to the mandatory requirements. 5.Any other relief that the Board may deem fit and just to grant pursuant to section 11(1) of the Fair Administrative Action Act. 6.Costs of the Review.” 9.The appellant’s case was that, along with the invitation to tender, the procuring entity (the 3rd respondent) issued the appellant with a copy of the tender documents and various addenda for the subject tender; that, Section III of the tender document expressly stated that “no other factors, methods or criteria shall be used other than those specified in this tender document”; that, in compliance therewith, the appellant submitted a comprehensive bid which represented the lowest tender price; that the appellant’s bid was fully compliant with all the mandatory and technical requirements set out in the tender document; and that it was therefore substantially responsive within the meaning of section 79(1) of the Act and ITT Clause 28.2 of the tender documents. 13..In addition to the foregoing, the appellant contended that the procuring entity failed to apply the procedure and criteria for evaluation stated in the tender document in disqualifying the appellant, and thereby failed to comply with the obligation under sections 79 and 80(2) of the Act and regulation 30(a) of the Regulations; and that the specific breaches were that:a.the procuring entity misapplied the evaluation criteria on ISO Certificates;b.the procuring entity misapplied its own evaluation criteria on tax compliance;c.the procuring entity misapplied its own evaluation criteria on the beneficial ownership form;d.the procuring entity misapplied its own evaluation criteria on the schedule of deviations; ande.that the procuring entity failed to apply uniform standards in breach of regulation 75(2) of the Regulations. 11.In view of the foregoing, the appellant averred that it stood to suffer loss and damage, including lost income and anticipated profits arising from denial of the opportunity to supply Terminal Tractors at a competitive price to the detriment of both the appellant and the public interest; and that the impugned decision was unreasonable, irrational, unlawful, erroneous and unjustified, and ought to be set aside to uphold fairness, equity, transparency, competitiveness, cost-effectiveness and public confidence in the procuring entity’s tender process. 12.In reply to the appellant’s request for review, the 2nd and 3rd respondents filed a replying affidavit of Eveline I. Shigoli (the General Manager Supply Chain Management Department of the 3rd respondent) sworn on 6th March 2026 essentially denying the appellant’s claims, and contending that the procurement was conducted strictly in accordance with the Act, the Regulations and the tender document. 13.Shigoli further averred that the procuring entity invited four original equipment manufacturers by way of letters dated 24th December 2025 to submit their bids for participation in the subject tender; that the tender was opened on 20th January 2026 whereupon the details were recorded in the official opening minutes; and that a Tender Evaluation Committee was appointed to evaluate the tender whereupon the four bids received were subjected to preliminary evaluation and the responsiveness of each bid to the mandatory requirements documented in the Committee’s evaluation report. 14.According to Shigoli, the evaluation committee made the following observations with regard to the appellant’s bid, namely:a.that the ISO Certificates submitted by the appellant did not clearly indicate that its management systems were certified for design and manufacturing processes contrary to the mandatory requirements under Section III Clause 2.2(v) of the tender document;b.that the appellant failed to provide a valid/current Tax Compliance Certificate or equivalent, which was a mandatory requirement under Section III Clause 2.2(ii) of the tender document;c.that the appellant’s Tenderer Information Form was not duly completed because it failed to disclose its beneficial ownership, which was a mandatory requirement under Section IV of the tender document;d.that, whereas the appellant listed M/S. Power Parts (K) Ltd as its duly authorised representative in the Tenderer Information Form, this was contradicted by the Power of Attorney where the appellant appointed one Jinesh Manian as its “true and lawful attorney with full power and authority to sign and execute the tender”; ande.that the appellant failed to provide a separate signed and stamped Schedule of Deviations as mandatorily required in Section III Clause 2.2(iv) of the tender document. 15.Shigoli further averred that, in consequence of the foregoing findings, the appellant was notified that its bid was unsuccessful, and which notification was also disclosed to the other bidders; that preliminary evaluation in procurement acts as a gate-keeping mechanism designed to determine whether bidders have met mandatory requirements on a strict yes/no basis pursuant to sections 89 and 90 of the Act; that there is no room for inquiry or deviation, and that bids that fail to meet the set down criteria are deemed non-responsive, and are excluded from progressing to the technical evaluation stage; that the appellant had not discharged its burden of proving that the procuring entity breached any of its duties imposed on it by law as envisaged under sections 63 and 167 of the Act; that the procuring entity’s Tender Evaluation Committee strictly adhered to all legal requirements when evaluating the bids received for the subject tender; and that it was evident that the appellant’s request for review was frivolous and vexatious. Accordingly, she urged the 1st respondent to dismiss the Request with costs. 16.Likewise, and in opposition to the appellant’s request for review, the 4th respondent filed a replying affidavit of Eunice J. Songok (a Director of the 4th respondent’s agent) sworn on 11th March 2026. In her affidavit, Songok reiterated the afore- mentioned reasons for which the appellant’s bid was deemed unresponsive, and substantially restated the matters deponed to by Shigoli. In addition, Songok averred that the appellant’s allegation that the evaluation was selective and disproportionate was unfounded on evidence; that the appellant’s claim for loss and damage was misconceived for the reasons that its disqualification was the direct and proximate consequence of its failure to submit a bid that complied with the mandatory requirements of the tender documents, and that the claim that its disqualification deprived the Kenyan taxpayer of the most competitive price was speculative and premature; that the 4th respondent participated in the subject tender in good faith and in full compliance with all the mandatory requirements of the tender document and, thus, was rightfully determined as the lowest evaluated responsive bidder for Lot 1 of the subject tender; and that the appellant’s request for review was frivolous, vexatious and calculated to defeat or delay the execution of a contract between the 2nd and 3rd respondents and the 4th respondent. In view of the foregoing, she urged the 1st respondent to dismiss the appellant’s request for review with costs. 17.On its part, the 5th respondent filed a replying affidavit of its Director, Abdalla Omar Hamid, sworn on 6th March 2026 in opposition to the appellant’s request for review. In his affidavit, Hamid averred that the appellant’s request for review was devoid of merit, made in bad faith and an abuse of the procurement process as it was merely intended to delay and frustrate the award to the 5th respondent; that, from the documents on record, the appellant’s bid was fairly evaluated, but failed to meet the evaluation criteria; and that the appellant failed to satisfy the mandatory technical requirements of the tender document. As Hamid urged, it was in the interest of justice that the request for review be dismissed with costs. 18.Subsequently, and in response to the 2nd to 5th respondents’ replies, the appellant filed a supplementary affidavit of Vishal Soni sworn on 13th March 2026. According to Soni, the characterisation by the 2nd to 5th respondents of the appellant’s request to review as frivolous and vexatious was unfounded; that its request for review raised substantial and demonstrable questions of law and fact, including questions of whether the 2nd and 3rd respondents correctly applied the evaluation criteria stated in the tender document, and whether they complied with sections 79 and 80(2) of the Act in disqualifying the appellant; and that the 5th respondent’s replying affidavit was fatally defective for non- compliance with section 5 of the Oaths and Statutory Declarations Act, Revised 1980 (1962) for failure to state the date on which it was sworn. 19.In rebuttal to the 2nd to 5th respondents’ replying affidavits, Soni averred that the tender document did not require ISO certificates to bear the words “design and manufacturing” on their face; that the procuring entity’s own evaluation criterion expressly permitted equivalent evidence of design and manufacturing quality certification; and that the appellant submitted a combination of ISO Certificates, warranty guarantees and technical documentation that, when read together, constituted equivalent evidence of certification for design and manufacturing processes. 20.With regard to Tax Compliance Certificates, Soni averred that the preliminary evaluation criteria at Section III Clause 2.2(5) (ii) of the tender document required “Valid/Current Tax Compliance Certificate or equivalent;” that, the appellant being a foreign company, submitted a Certificate of Paid Taxes issued by the Finish Tax Administration as the equivalent of a Kenyan Tax Compliance Certificate; that the Certificate of Paid Taxes is a continuous certificate that remains valid so long as the taxpayer has no outstanding tax obligations; that the absence of an expiry date does not invalidate the certificate but, rather, reflects the Finish system of real-time tax compliance verification; and that, if the procuring entity was unable to determine the validity of the submitted document, the appropriate course was to request clarification from the appellant, and not to disqualify it. 21.On the issue of beneficial ownership and authorised representative, Soni contended that the tender document contained only one form specifically designated and titled as the beneficial ownership form, namely Form No. 8 in Section VIII of the tender document; and that Form No. 8 was to be completed after notification of award, and not on submission of the bids. 22.With regard to the Schedule of Deviations and Technical Specifications, Soni stated that, contrary to the contention that the appellant was required to provide a schedule of deviations, the tender document, at Section III Clause 2.2(5) (xiv), required either a clause-by-clause commentary demonstrating substantial responsiveness of the equipment to the specifications, or a statement of deviations and exceptions; that the appellant submitted comprehensive technical specifications and drawings at pages 552 to 856 of its bid, constituting a detailed clause-by- clause commentary demonstrating responsiveness; and that a separate schedule of deviations was therefore not required. According to Soni, the respondents’ characterisation of the preliminary evaluation as admitting no room for inquiry was contradicted by the Act; that section 81(1) of the Act empowers the procuring entity to request clarification from tenderers during the evaluation process; that section 79(2) (a) and regulation 75(1) expressly empower the procuring entity to waive minor deviations, informalities or irregularities; and that the respondents’ interpretation of the law was therefore internally inconsistent. 23.In conclusion, Soni averred that the appellant had demonstrated, through detailed analysis of each ground of disqualification, that the procuring entity applied standards and criteria not stated in the tender document. Reiterating the prayers in the appellant’s request for review, Soni urged the 1st respondent to grant the reliefs therein sought. 24.In its decision rendered on 21st March 2026, the 1st respondent:a.allowed the appellant’s request;b.nullified and set aside the 2nd and 3rd respondents’ Letters of Intention of Award dated 13th February 2026 issued by the procuring entity to the successful bidders;c.nullified and set aside the Letters of Notification dated 13th February 2026 issued by the procuring entity to the unsuccessful bidders;d.directed the 2nd respondent to reinstate the appellant’s tender in the tender process and evaluate it from the technical evaluation stage, together with all other tenders that were responsive at the preliminary evaluation stage, and proceed with the tender to its logical and lawful conclusion within 21 days from the date of the decision; ande.directed that each party bears their own costs of the request for review. 25.Dissatisfied with the 1st respondent’s decision, the 2nd and 3rd respondents applied for judicial review in HC JR No. E009 of 2026 seeking the following orders:“ 1.This Honourable Court be pleased to grant the Judicial Review order of Certiorari to bring into this Honourable Court for purposes of quashing the decision of the Public Procurement Administrative Review Board dated 21.03.2026 in Request for Review Application No. 32 of 2026 in respect of the Tender No. KPN036/2025-26/ES for Supply, Testing and Commissioning of Terminal Tractors. 2.That each party bears its own costs in line with the provisions of Section 175 (7) of the Public Procurement and Asset Disposal Act, 2015. 3.Such further and other reliefs as this Honourable Court may deem just and expedient to grant.” 26.In their Notice of Motion dated 2nd April 2026 and supported by the verifying affidavit of Eveline I. Shigoli sworn on 1st April 2026 essentially deposing to a whopping 24 grounds on which their Motion was anchored under three main heads, namely ultra vires, illegality, irrationality and unreasonableness. In the main, the 24 argumentative grounds are substantially replicated in their written submissions dated 13th April 2026, which we have duly considered, but which we need not reproduce here. 27.Even though the impugned judgment of J. Ngaah, J. alludes to a replying affidavit of Vishal Soni in opposition to the 2nd and 3rd respondents’ judicial review application, that affidavit is not in the record as put to us. Be that as it may, a summary of its contents as observed in the impugned decision is taken to mind in our ensuing findings and determination on the relevant issues raised in the appeal in E089 of 2026. 28.It is also noteworthy that the 4th respondent supported the 2nd and 3rd respondent’s application for review as appears from its replying affidavit of Eunice J. Songok sworn on 8th April 2026, and to which we will shortly return. 29.On its part, the 4th respondent sought judicial review of the 1st respondent’s decision vide an Originating Motion dated 2nd April 2026 filed in HCJR Application No. E010 of 2026. Its Originating Motion was supported by the affidavit of Eunice J. Songok sworn on 2nd April 2026 deposing to a multitude of 26 grounds on which the Motion was anchored, and which we have duly considered but need not replicate here. Notably, it prayed for the following orders:“ 1.THAT this Honourable Court be pleased to issue an order of CERTIORARI, to remove into the High Court and quash and/or set aside the Decision of the Public Procurement Administrative Review Board dated 21st March 2026 in Public Procurement Administrative Review Board Application No. 32 of 2026, Kalmar Finland OY v Accounting Officer, Kenya Ports Authority, Kenya Ports Authority, MOL CY NV and Wood Creek Limited, in respect of Tender No. KPA/036/2025-26/ES for Supply, Testing and Commissioning of Terminal Tractors. 2.THAT this Honourable Court be pleased to issue an order of PROHIBITION, directed at the 2nd and 3rd Respondents, prohibiting them from implementing the Decision of the 1st Respondent dated 21st March 2026 in Public Procurement Administrative Review Board Application No. 32 of 2026, Kalmar Finland OY v Accounting Officer, Kenya Ports Authority, Kenya Ports Authority, MOL CY NV and Wood Creek Limited, in respect of Tender No. KPA/036/2025- 26/ES for Supply, Testing and Commissioning of Terminal Tractors. 3.THAT pending the hearing and determination of the substantive Originating Motion, this Honourable Court be pleased to issue AN INTERIM ORDER FOR STAY, to stay the Execution and/or Implementation of the Decision of the 1st Respondent dated 21st March 2026 in Public Procurement Administrative Review Board Application No. 32 of 2026, Kalmar Finland OY vs. Accounting Officer, Kenya Ports Authority, Kenya Ports Authority, MOL CY NV and Wood Creek Limited, in respect of Tender No. KPA/036/2025- 26/ES for Supply, Testing and Commissioning of Terminal Tractors. 4.THAT the costs of these proceedings be provided for. 5.Such other, further, incidental and/or alternative relief(s) as this Honourable Court may deem just and expedient.” 30.In what appears to be a gesture of solidarity or like- mindedness in relation to the fate of the two judicial review applications, the 2nd and 3rd respondents also filed a replying affidavit of Daniel M. Amuyunzu (its Principal Supply Chain Management Officer) sworn on 21st April 2026 in support of the 4th respondent’s review application, and whose contents we have duly considered. 31.In its judgment delivered on 15th May 2026 in HCJR No. E009 of 2026 and uploaded on the court’s CTS platform on 16th May 2026, the High Court (J. Ngaah, J.) allowed the 2nd and 3rd respondents’ review application and issued orders of certiorari to quash the 1st respondent’s decision as prayed, but with no order as to costs. 32.With regard to the 4th respondent’s review application, the learned Judge delivered his judgment on 15th May 2026 in HCJR E010 of 2026. In its judgment, which was uploaded on the court’s CTS platform on 19th May 2026, the court allowed the 4th respondent’s review application and issued an order of certiorari to quash the 1st respondent’s decision. In addition, the learned Judge issued an order of prohibition restraining the 2nd and 3rd respondents from implementing the 1st respondent’s decision and ordered each party to bear their respective costs. 33.Aggrieved by the learned Judge’s decision, the appellant moved to this Court on two separate appeals on 22nd May 2026 in Civil Appeal Nos. E089 and E090 of 2026. 34.In Civil Appeal No. E089 of 2026, the appellant advanced the following 14 grounds:“ 1.The learned Judge erred in law and fact by refusing to uphold the Appellant’s Notice of Preliminary Objection dated 22nd April 2026, and in assuming jurisdiction over the 2nd and 3rd Respondents’ Notice of Motion dated 2nd April 2026, despite those Respondents neither pleading nor proving that they were “persons aggrieved” within the meaning of section 175(1) of the Public Procurement and Asset Disposal Act, 2015. 2.The learned Judge erred in law by departing from binding precedent on locus standi to commence judicial review under section 175(1) of the Public Procurement and Asset Disposal Act namely the Judgment of the Court of Appeal in Kenya Ports Authority & another v Rhombus Construction Company Limited & 2 others [2021] KECA 438 (KLR) and thereby failed to apply stare decisis and misconstrued section 175(1) of the Public Procurement and Asset Disposal Act. 3.The learned Judge erred in law by departing from binding authority on the scope of judicial review, notably the Supreme Court Judgments in Saisi & 7 Others v. Director of Public Prosecutions & 2 Others, Petition 39 & 40 of 2019 (Consolidated) [2023] KESC 6 (KLR) and Dande & 3 Others v. Inspector General, National Police Service & 5 Others, Petition 6 (E007), 4 (E005) & 8 (E010) of 2022 (Consolidated) [2023] KESC 40 (KLR), thereby failing to apply stare decisis and misconstruing sections 167(1) and 173 of the Public Procurement and Asset Disposal Act. 4.The learned Judge erred in law and in fact in departing from the scope of judicial review which he himself had previously appreciated in his judgment delivered on 16th May 2025 in Power Parts (Kenya) Limited v. Public Procurement Administrative Review Board & 2 Others, Mombasa High Court Judicial Review Case No. E006 of 2025. 5.The learned Judge erred in law and fact by conducting a full merits re-evaluation and substituting his own technical and evaluative findings for those of the Public Procurement Administrative Review Board, contrary to the limits of judicial review proceedings commenced under Order 53 of the Civil Procedure Rules and established jurisprudence of the Court of Appeal and the Supreme Court that restricts judicial review under Order 53 to procedure rather than merit review. 6.The learned Judge erred in law by relying on provisions of the Public Procurement and Asset Disposal Regulations, 2020 as the basis for material findings, notwithstanding that those Regulations and its provisions had been declared unconstitutional, null and void by the High Court in Judgment dated 4 December 2025 in the case of Roads and Civil Engineering Contractors Association & another v Attorney General & another; Public Procurement Administrative Review Board & another (Interested Parties) (Petition E226 of 2020 [2025] KEHC 19224 (KLR)). 7.The learned Judge erred in law and fact in holding that the Finnish Certificate of Paid Taxes did not satisfy the Tender requirement for a “Valid/Current Tax Compliance Certificate or equivalent,” and in failing to recognise that (a) the tender expressly allowed “or equivalent” instruments issued by foreign tax authorities and (b) verification of such foreign documents may properly occur at the due-diligence/post-evaluation stage under section 83 of the Public 10 Procurement and Asset Disposal Act and ITT 37. 8.The learned Judge erred in law and fact in mechanically finding that the Appellant’s ISO certifications did not meet the Tender’s requirement for a valid quality certificate, and in failing to give effect to the express qualifier “or equivalent” and to apply contra proferentem when construing ambiguous mandatory tender requirements drafted by the procuring entity. 9.The learned Judge erred in law and fact in treating disclosure of beneficial ownership as a mandatory pre-award requirement when Form No. 8 contemplates post-award disclosure, and in holding the Appellant to a disclosure standard not prescribed by the Tender (thereby applying an 20 extraneous criterion outside the tender document contrary to section 80(2) of the Public Procurement and Asset Disposal Act. 10.The learned Judge erred in law and in fact in failing to appreciate that Section III, Clause 5 of the Tender Document clearly distinguishes between a duly authorised representative of a tendering firm and any other officer appointed and evidenced by a Power of Attorney, and that the Appellant’s designation of M/s Power Parts (Kenya) Limited as its local authorised representative, and of Mr. Jinesh Manian as the holder of Power of Attorney, was neither contradictory nor a proper ground for declaring the Appellant’s bid nonresponsive. 11.The learned Judge erred in law and in fact in holding that the Appellant was required to submit a separate schedule of deviations under Clause 2.2(xiv) of the Tender Document, when that clause required such a schedule only “in the case of deviations from the specifications”, and the Appellant’s bid substantially complied with, and in material respects exceeded, the Procuring Entity’s required specifications. 12.The learned Judge erred in law in failing to give effect to section 79(2)(a) of the Public Procurement and Asset Disposal Act, 2015, which expressly provides that the responsiveness of a tender is not affected by minor deviations that do not materially depart from the requirements set out in the tender documents, and in equating minor deviations with material noncompliance. 13.The learned Judge erred in law in holding that the Public Procurement Administrative Review Board exceeded its jurisdiction when ordering nullification of notifications of award and reinstatement of the Appellant’s tender, and in labelling the Board’s reasoned decision as Wednesbury-unreasonable whereas it was rationally connected to the evidence before the Review Board and applicable statutory provisions. 14.The learned Judge erred in law in failing to take into account Article 227(1) of the Constitution of Kenya and the overarching public interest in cost-effective public procurement and in the timely supply, testing and commissioning of Terminal Tractors for the Port of Mombasa, and in granting the impugned orders notwithstanding the prejudice such orders occasion to the public interest.” 35.With regard to Civil Appeal No. E090 of 2026, the appellant advanced the following 18 grounds, namely:“ 1.The learned Judge erred in law and in fact in delivering the impugned Judgment on 19th May 2026, being beyond forty-five (45) days from the date of filing of the Originating Motion (3rd April 2026), contrary to the mandatory statutory timeline prescribed under section 175(3) of the Public Procurement and Asset Disposal Act, 2015 for the determination of an application for judicial review of a decision of the Public Procurement Administrative Review Board. 2.The learned Judge erred in law in that, the statutory forty-five (45) day period for determination of the application having expired on or about 18th May 2026, the High Court was devoid of jurisdiction to deliver Judgment on 19th May 2026, with the consequence that the impugned Judgment and the Decree arising thereunder are a nullity ab initio and of no legal effect. 3.The learned Judge erred in law and in fact in purporting on 15th May 2026 to allow Judicial Review Application No. E010 of 2026 “for reasons advanced in the Judgment in Judicial Review Application No. HCJR E009 of 2026”, whereas no Judgment had then been pronounced, signed, dated or otherwise rendered in Judicial Review Application No. E010 of 2026, the written Judgment having only been delivered on 19th May 2026 and outside the statutory timeline, thereby rendering the pronouncement of 15th May 2026 incompetent, of no legal effect, and the subsequent written Judgment of 19th May 2026 a nullity. 4.The learned Judge erred in law and in fact in delivering a Judgment that wholesale adopts “the reasons advanced in the Judgment in Judicial Review Application No. E009 of 2026” without independently examining, weighing or determining the distinct pleadings, evidence, submissions, parties and grounds of review placed before the Honourable Court in Judicial Review Application No. E010 of 2026, thereby abdicating his judicial duty, denying the Appellant a fair hearing as guaranteed by Articles 25(c), 47 and 50(1) of the Constitution, and breaching the rules of natural justice. 5The learned Judge erred in law and in fact in mechanically making judicial review orders against the entire decision including the final orders of the Public Procurement Administrative Review Board in Review No. 32 of 2026 despite the Applicant having only pleaded to have been aggrieved with specified parts of the decision of the Review Board which did not include the entire decision and final orders of the Review Board. 6.The learned Judge erred in law and fact in failing to find that the Applicant in the High Court lacked locus standi to challenge the entire decision of the Review Board in Review Application No. 32 of 2026 upon having pleaded to have been aggrieved by only specific parts of the said decision. 7.The learned Judge erred in law by departing from binding authority on the scope of judicial review, notably the Supreme Court Judgments in Saisi & 7 Others v. Director of Public Prosecutions & 2 Others, Petition 39 & 40 of 2019 (Consolidated) [2023] KESC 6 (KLR) and Dande & 3 Others v. Inspector General, National Police Service & 5 Others, Petition 6 (E007), 4 (E005) & 8 (E010) of 2022 (Consolidated) [2023] KESC 40 10 (KLR), thereby failing to apply stare decisis and misconstruing sections 167(1) and 173 of the Public Procurement and Asset Disposal Act, 2015. 8.The learned Judge erred in law and in fact in departing from the scope of judicial review which he himself had previously appreciated in his judgment delivered on 16th May 2025 in Power Parts (Kenya) Limited v. Public Procurement Administrative Review Board & 2 Others, Mombasa High Court Judicial Review Case No. E006 of 2025, thereby acting inconsistently with his own settled approach to the proper scope of judicial review under the Public Procurement and Asset Disposal Act, 2015. 9.The learned Judge erred in law and in fact by conducting a full merits re- evaluation of the tender and substituting his own technical and evaluative findings for those of the Public Procurement Administrative Review Board, contrary to the limits of judicial review proceedings as previously appreciated by the learned Judge in his Judgment delivered on 16th May 2025 in Power Parts (Kenya) Limited v. Public Procurement Administrative Review Board & 2 Others, Mombasa High Court Judicial Review Case No. E006 of 2025. 10.The learned Judge erred in law by relying on provisions of the Public Procurement and Asset Disposal Regulations, 2020 as the basis for material findings, notwithstanding that those Regulations had been declared unconstitutional, null and void by the High Court in the Judgment dated 4th December 2025 in Roads and Civil Engineering Contractors Association & another v Attorney General & another; Public Procurement Administrative Review Board & another (Interested Parties), Petition E226 of 2020 [2025] KEHC 19224 (KLR), and were accordingly incapable of supporting the impugned findings. 11.The learned Judge erred in law and in fact in holding that the Finnish Certificate of Paid Taxes issued by the Finnish Tax Administration did not satisfy the tender requirement for a “Valid/Current Tax Compliance Certificate or equivalent”, and in failing to recognise that (a) the tender expressly allowed “or equivalent” instruments issued by foreign tax authorities; (b) the certificate on its face certified payment of all taxes, charges and other debts in “the past 12 months” and filing of all required tax- related reports; and (c) verification of such foreign documents was properly capable of being undertaken at the due diligence/post- evaluation stage under section 83 of the Public Procurement and Asset Disposal Act, 2015 read with ITT 37 of the Tender Document. 12.The learned Judge erred in law and in fact in mechanically finding that the Appellant’s ISO certifications issued to Kalmar Finland Oy and the further ISO certification issued to its subsidiary Kalmar Industries (China) Co. Ltd) did not meet the Tender’s requirement for a valid quality certificate, and in failing to give effect to the express qualifier “or equivalent” and to apply the rule of contra proferentem when construing ambiguous mandatory tender 20 requirements drafted by the procuring entity. 13.The learned Judge erred in law and in fact in treating disclosure of beneficial ownership as a mandatory pre-award requirement when Form No. 8 of Section VIII of the Tender Document expressly contemplated such disclosure at the post- award stage, and in thereby holding the Appellant to a disclosure standard not prescribed by the Tender, in violation of section 80(2) of the Public Procurement and Asset Disposal Act, 2015 which restricts evaluation to the criteria and procedures set out in the tender document. 14.The learned Judge erred in law and in fact in holding that the Appellant was required to submit a separate Schedule of Deviations under Clause 2.2(xiv) 30 of the Tender Document, when that clause required such a schedule only “in the case of deviations from the specifications”, and the Appellant’s bid substantially complied with, and in material respects exceeded, the Procuring Entity’s required technical specifications. 15.The learned Judge erred in law in failing to give effect to section 79(2)(a) of the Public Procurement and Asset Disposal Act, 2015, which expressly provides that the responsiveness of a tender is not affected by minor deviations that do not materially depart from the requirements set out in the tender documents, and in equating minor deviations with material noncompliance. 16.The learned Judge erred in law and in fact in holding that the Public Procurement Administrative Review Board acted in excess of its jurisdiction under section 173 of the Public Procurement and Asset Disposal Act, 2015 when ordering nullification of the notifications of award and reinstatement of the Appellant’s tender, and in labelling the Board’s reasoned decision as Wednesbury- unreasonable whereas it was rationally connected to the evidence on record before the Review Board and to the applicable statutory provisions. 17.The learned Judge erred in law in failing to take into account Article 227(1) of the Constitution of Kenya and the overarching public interest in a fair, equitable, transparent, competitive and cost-effective system of public procurement, and in the timely supply, testing and commissioning of 20 Terminal Tractors for the Port of Mombasa, and in granting the impugned orders notwithstanding the prejudice such orders occasion to the Appellant and to the public interest. 18.The learned Judge erred in law and in fact in granting orders of certiorari and prohibition that, in their cumulative effect, sanction the exclusion of the Appellant’s bid from further evaluation on the basis of asserted technical noncompliance that could properly have been clarified or verified under the procurement regime, thereby occasioning a miscarriage of justice.” 36.In support of Civil Appeal No. E089 of 2026, learned counsel for the appellant, M/s. Sigano & Omollo LLP, filed written submissions dated 9th June 2026 citing 16 judicial authorities while, with regard to Civil Appeal No. E090 of 2026, their written submissions dated 19th June 2026 also cited 16 judicial authorities. In sum, they urged us to allow the two appeals. 37.In rebuttal, counsel for the 2nd and 3rd respondents, M/s. Kipkenda & Company, filed written submissions in Civil Appeal No. E089 of 2026 on 15th June 2026 citing 7 judicial decisions while, with regard to Civil Appeal No. E090 of 2026, their written submissions dated 22nd June 2026 cited 6 judicial authorities, and on the basis of which they urged us to dismiss the two appeals. 38.On their part, counsel for the 4th respondent, M/s. NOW Advocates LLP, filed their written submissions in Civil Appeal No. E089 of 2026 on 8th June 2026 citing 8 judicial authorities while, in respect of Civil Appeal No. E090 of 2026, their written submissions dated 10th June 2026 cited 11 judicial authorities. 39.As appears from the record as put to us, the 1st and the 5th respondent did not file any written submissions or participate in the two appeals. 40.When the two appeals came up for hearing on the Court’s virtual platform on 6th July 2026, they were consolidated by consent of the parties as represented by the respective counsel, namely: Mr. Omollo for the appellant; Mr. Wachira for the 2nd and 3rd respondents; and Ms. Nungo and Mr. Nyabate for the 4th respondent. Following consolidation of the two appeals, counsel for the appellant and of the 2nd to 4th respondents made oral highlights of their respective written submissions while there was no representation on the part of the 1st and 5th respondents despite having been duly served with the requisite hearing notice. 41.In appeals such as the ones before us, this Court recognises the immutable principle that public procurement sits at the fault line between two constitutional imperatives that do not always pull in the same direction: the efficient and expeditious delivery of public goods and services, and the fairness owed to every tenderer who competes for the right to deliver them. Indeed, Article 227(1) of the Constitution does not treat these as competing values to be traded off, but as a single, indivisible standard — a system that is fair, equitable, transparent, competitive and cost-effective or, otherwise, it is no system at all. 42.As Froneman, J. observed of a comparable social-contracting dispute, in Allpay Consolidated Investment Holdings (Pty) Ltd v Chief Executive Officer, South African Social Security Agency [2013] ZACC 42 at para [4], that it is because procurement so palpably implicates socio-economic rights that the public has an interest in its being conducted to that standard. The High Court has, in turn, had occasion to underscore the need to hold that balance between the efficiency the procurement process demands and the fairness its adjudication owes in the ruling of Nyamu, J. (as he then was) in Republic v Public Procurement Administrative Review Board ex parte Selex Sistemi Integrati [2008] KEHC 3915 (KLR). It is against that balance, and not against either value in isolation, that the two appeals from the decision of the Board must be assessed. Hence, the constitutional edict in Article 227 of the 2010 Constitution, which requires that, “[w]hen a State organ or any other public entity contracts for goods or services, it shall do so in accordance with a system that is fair, equitable, transparent, competitive and cost-effective". 43.The two consolidated appeals before us are characterized by viciously competing interests tenaciously asserted by four bidders in response to a tender for procurement of goods and services by the 3rd respondent, a public procuring entity, and which stand to be tested against the constitutional imperatives, to wit, the efficient and expeditious delivery of public goods and services as well as the fairness owed to every tenderer as elucidated in see Kenya Ports Authority v Public Procurement Administrative Review Board & 2 others [2024] KECA 1099 (KLR). 44.Having considered the records of the consolidated appeals, the grounds on which they are anchored, the rival submissions of learned counsel, the cited judicial authorities and the law, we find that eight (8) decisive issues commend themselves for our determination, namely:i.whether the impugned judgment in HC JR E009 and E010 of 2026, or any of them, was delivered outside the period prescribed under the Act;ii.whether the 2nd and 3rd respondents had the locus standi as aggrieved persons as contemplated in section 175(1) of the Act, and whether the learned Judge had jurisdiction to entertain their reference;iii.whether the 4th respondent had locus standi to challenge the entire decision of the 1st respondent having allegedly pleaded that it had been aggrieved by only part thereof;iv.whether the learned Judge acted in excess of jurisdiction by conducting a merit review and re-evaluation of the tender in issue, and in substituting the technical decision of the Review Board for his own;v.whether the learned Judge’s decision was founded on any part of the Public Procurement and Asset Disposal Regulations, 2020 previously declared unconstitutional;vi.whether the learned Judge was at fault in concluding that the appellant’s bid was non-responsive;vii.whether the learned Judge’s decision was against the grain of Article 227(1) of the Constitution; andviii.whether the learned Judge erred in law in granting the orders of certiorari and prohibition in favour of the 2nd, 3rd and 4th respondents. 45.On the 1st issue as to the actual date on which the impugned judgments were delivered, the appellant contends that, except for HCJR No. E009 of 2026 in which judgment was delivered on time on 15th May 2026, the judgment in HCJR No. E010 of 2026 was delivered on 19th May 2026, allegedly outside the statutory period prescribed under section 175(3) of the Act. 46.The appellant’s contention was that judgments in the two review applications were delivered through the CTS platform on which they were uploaded on 16th and 19th May 2026 respectively. Far from it, the act of uploading a court’s decision on the court’s CTS on any particular day is not of itself equivalent to delivery on that day. 47.To the contrary, and as counsel for the 2nd, 3rd and 4th respondents correctly pointed out, the certified copy of the proceedings in HCJR No. 010 of 2026, comprising the supplementary record of appeal in E090 of 2026 as filed on 16th June 2026, clearly shows that the impugned judgment was actually delivered on 15th May 2026 in the presence of counsel for the appellant, Mr. Omollo; counsel for the 2nd and 3rd respondents, Mr. Wachira; and Mr. Nyabate for the 4th respondent. Thereafter, the judgment was uploaded on the court’s CTS platform on 19th May 2026. Accordingly, delivery thereof was in due time as required by section 175(3) of the Act and, consequently, this ground of appeal fails. 48.Turning to the 2nd and 3rd closely linked issues as to whether the 2nd, 3rd and 4th respondents had the locus standi as aggrieved persons pursuant to section 175(1) of the Act, and whether the learned Judge had jurisdiction to entertain their respective applications, the appellant contends that the 2nd and 3rd respondents neither pleaded nor proved that they were “persons aggrieved” within the meaning of section 175(1) of the Act; that the 4th respondent had pleaded grievance only with specified findings of the 1st respondent touching on the responsiveness of the appellant’s bid; and that the 4th respondent did not plead that it was aggrieved by the entire decision, including its final orders. 49.In reply, the 2nd and 3rd respondents submitted that, under section 175 of the Act, “a person aggrieved” may be either the person who requested the review under section 167 of the Act or the accounting officer of a procuring entity, or the procuring entity itself; that, in any event, section 170 of the Act provides in mandatory terms that the accounting officer of a procuring entity shall be a party to the review processes commenced under section 167 of the Act; that, having been named as parties in the appellant’s request for review, the 2nd and 3rd respondents had every right to invoke section 175(1) to challenge the legality of the 1st respondent’s decision; and that the grievance occasioned to them following the impugned decision is succinctly pleaded in their judicial review application. 50.On its part, the 4th respondent submitted that the 2nd and 3rd respondents were the accounting officer and procuring entity respectively in the request for review before the 1st respondent; that the 1st respondent’s decision directly nullified their notification of the award and issued mandatory directions to them; that the 2nd and 3rd respondents were therefore aggrieved by that decision within the meaning of section 175(1) of the Act; that, the 4th respondent having participated in the review proceedings before the 1st respondent as the successful tenderer pursuant to section 170(c) of the Act, it was aggrieved by the impugned decision; that the relief sought by the 4th respondent in its Originating Motion clearly prayed for orders to quash the 1st respondent’s decision and prohibition from the implementation thereof; and that, in any event, the 1st respondent’s decision was an integrated administrative determination rather than a bundle of severable decisions capable of discrete isolation. 51.In conclusion, the 4th respondent submitted that it was neither legally tenable nor practically feasible to suggest that the learned Judge could surgically excise or isolate selected portions of reasoning while leaving the operative order intact and undisturbed. 52.We call to mind the provisions of section 175(1) of the Act, being the very provision upon which the learned Judge had grounded his reasoning, noting that a preliminary issue had been raised before him by the appellant, calling upon the court to determine, in limine, whether the 2nd and 3rd respondents possessed the necessary locus standi to institute the proceedings before it. 53.In his judgment, the learned Judge observed that section 175(1) of the Act permitted a person aggrieved by a decision of the Review Board to move the court for judicial review of that decision, and that the “decision” so referred to was, without doubt, a decision rendered upon an application for review lodged before the Review Board under section 167(1) of the Act. 54.The learned Judge further observed that, in the matter before him, a request for review had been lodged by the appellant following notification of the award of the subject tender, and that the two applicants (the 2nd and 3rd respondents herein) had been named therein as respondents. In view of the foregoing, the learned Judge reasoned that the Review Board (the 1st respondent herein) must accordingly have admitted the procuring entity (the 3rd respondent herein) as a party to that request for review pursuant to section 170(d) of the Act, which vested in the Board the discretion to determine whether any party other than those enumerated under section 170(a) to (c) ought to be joined to the proceedings. 55.In view of the foregoing, the learned Judge drew the conclusion that, if the “person” contemplated under section 175(1) as one entitled to lodge an application for judicial review against a decision of the Review Board was a person who had been a party to the request for review and who was aggrieved by the resulting decision, then it could not seriously be questioned that the 2nd and 3rd respondents possessed the requisite locus standi to institute the review application. They had, after all, been parties to the request for review proceedings, and had plainly filed the application for review precisely because they were aggrieved by the Board's decision. Accordingly, the learned Judge held that the short answer to the objection raised by the appellant was that the 2nd and 3rd respondents possessed not merely the locus standi to seek the reliefs of judicial review, but that the court itself possessed the requisite jurisdiction under section 175(1) of the Act, to entertain the judicial review. 56.Section 175(1) of the Act reads:175.Right to judicial review to procurement(1)A person aggrieved by a decision made by the Review Board may seek judicial review by the High Court within fourteen days from the date of the Review Board's decision, failure to which the decision of the Review Board shall be final and binding to both parties. 57.In Re Read Bowen & Co. exp Official Receiver [1887] 19 QBD 174, Lord Esher, M.R. held that:“The words ‘person aggrieved’ are of wide import and should not be subjected to a restrictive interpretation. They do not of course include a mere busybody who is interfering in things which do not concern him, but they do include a person [against whom] an order has been made which prejudicially affects his interests.” 58.In Al Ghurair Printing And Publishing Llc v Coalition For Reforms And Democracy & another; Public Procurement Administrative Review Board (Interested Party) [2017] KECA 565 (KLR), this Court held that:“ 168.Section 175 of the PPAD Act further provides for judicial review from a decision made by the Review Board .... 169.It therefore follows that to be an aggrieved person, one would require to have had the status of either an applicant or a procuring entity.” 59.In Republic v Public Procurement Administrative Review Board & 2 others Ex Parte Kenya National Highway Authority [2016] KEHC 7967 (KLR), Odunga, J. (as he then was) persuasively held that:“ 12.... Under section 175(1) of the Act, it is clear that it is only a person aggrieved by a decision made by the Review Board that is entitled to seek judicial review by this High Court. If the term “aggrieved person” or “party” was to be interpreted to exclude the procuring entity, it would mean that the procuring entity has no right to invoke the judicial review jurisdiction of this Court. That view, in my view, would be patently unconstitutional. Therefore, the only proper interpretation would be that for the purposes of the Act, an “aggrieved person” or “party” includes the procuring entity.” 60.On the authority of the afore-cited judicial decisions, we form the considered view that the learned Judge was by no means at fault in concluding that the 2nd, 3rd and 4th respondents were persons aggrieved, and had the requisite locus standi to institute the judicial review proceedings leading to the decision impugned in the consolidated appeals. To our mind, the applicants therein were not busybodies bent on interfering in things that did not concern them; and that they were persons against whom an order had been made, and which prejudicially affected their interests. In any event, the 2nd and 3rd respondents constituted the procuring entity who were putting forth a grievance that the decision had allowed a bid which was non-responsive to succeed while the 4th respondent was the successful bidder, parties that had locus standi to challenge the 1st respondent’s decision in the event of dissatisfaction therewith. 61.As was held in Republic v PPARB & 2 others (ibid), if the term “aggrieved person” or “party” were to be interpreted to exclude the procuring entity, it would mean that the procuring entity has no right to invoke the court’s judicial review jurisdiction, which would be outrightly unconstitutional. 62.In addition to the foregoing, section 167 of the Act requires “a candidate or a tenderer who claims to have suffered or risks suffering loss or damage due to breach of a duty imposed on a procuring entity by [the] Act or the Regulations [to] seek administrative review within fourteen days of notification of award or date of occurrence of the alleged breach at any stage of the procurement process, or disposal process as in such manner as may be prescribed”. And that is precisely what the 4th respondent did in its capacity as a bidder. Accordingly, the 2nd, 3rd and 4th respondents had locus standi to seek judicial review of the 1st respondent’s decision, and the learned Judge had jurisdiction to hear and determine their applications. Consequently, the 2nd and 3rd issues stand settled and the grounds of appeal in that regard fail. 63.With regard to the 4th issue, the appellant faulted the learned Judge for allegedly acting in excess of jurisdiction by conducting a merit review and re-evaluation of the tender in issue, and in substituting the technical decision of the Review Board for that of his own. In this regard, counsel for the appellant submitted that judicial review proceedings under Order 53 of the Civil Procedure Rules, as commenced by the 2nd and 3rd respondents, concerns the propriety of the decision-making process and not with the merits of the decision or the correctness of the conclusion reached; and that the court does not sit on appeal over the evaluative and technical findings of the decision-maker. 64.Counsel further submitted that judicial review under the Fair Administrative Action Act and Article 47 of the Constitution, as commenced by the 4th respondent, admits a limited inquiry into certain aspects of the merits of the impugned decision. 65.According to counsel, the learned Judge transgressed the limits that the Supreme Court authoritatively placed upon a reviewing court in Dande & 3 others v Inspector General, National Police Service & 5 others [2023] KESC 40 (KLR), namely that, when a party approaches a court under the provisions of the Constitution, then the court ought to carry out a merit review of the case; and that, if a party files a suit under the provisions of order 53 of the Civil Procedure Rules, and does not claim any violation of rights or of the Constitution, then the court can only limit itself to the process and manner in which the decision complained of was reached or action taken, and not the merits of the decision per se. 66.In addition, counsel highlighted the limits placed by the Court of Appeal in Suchan Investment Limited v Ministry of National Heritage & Culture & 3 others [2016] eKLR: that, under the Fair Administrative Action Act, there is no power for the reviewing court to substitute the decision of the administrator with its own decision; that the court can only remit the matter to the administrator and/or make orders stipulated in section 11 of the Fair Administrative Action Act; and that this limit reflects the settled principle that judicial review, even in its expanded form, remains a supervisory and not an appellate jurisdiction. 67.Counsel contended that, notwithstanding these limits, the learned Judge did not confine himself to reviewing the legality, rationality and fairness of the Review Board’s decision and, if persuaded of error, remitting it; that he embarked upon a full re- evaluation of the appellant’s tender; and that, the learned Judge, who was not sitting on appeal from the Review Board, impermissibly embarked upon a fresh evaluation of the evidence relating to the appellant’s bid, and thereby substituted the Review Board’s factual and technical findings for that of his own, notwithstanding that those matters lay within the Review Board's specialised competence as the statutory tribunal entrusted by Parliament with procurement disputes. 68.As counsel argued, even if the learned Judge had found the Review Board to have erred, the proper course was not to re-decide the responsiveness of the appellant’s tender for itself but, rather, and consistent with the supervisory nature of judicial review and section 11 of the Fair Administrative Action Act, the Court ought to have set aside the impugned decision and remitted the matter to the Review Board for reconsideration. Counsel further submitted that, by quashing the Review Board's decision in its entirety and granting orders of certiorari and prohibition, whose practical effect was to uphold the appellant's disqualification, the learned Judge effectively replaced the Board’s determination with his own, thereby usurping the Board’s statutory jurisdiction. 69.In conclusion, counsel contended that the learned Judge compounded the error by labelling the Review Board’s reasoned decision as Wednesbury-unreasonable, holding that it was “so grossly unreasonable, so outrageous in defiance of logic or acceptable moral standards that no reasonable authority or body … would have arrived at it”. That threshold, counsel argued, as set out in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 is very high, and the Review Board’s decision, which was reasoned and rationally connected to the evidence and to the applicable statutory provisions, was nowhere close to it. 70.In rebuttal, counsel for the 2nd and 3rd respondents submitted that the Court limited itself to two foundational legal grounds: whether the decision of the 1st respondent was illegal; and whether it was irrational; and that the court therefore correctly examined whether the Board had misdirected itself in law by introducing evaluation criteria outside the tender document, rewriting mandatory tender requirements, and directing the procuring entity to evaluate a bid that had failed to satisfy mandatory preliminary requirements. 71.According to counsel, the learned Judge correctly noted that the 1st respondent’s decision fit the description of the decisions described in Associated Provincial Picture Houses Ltd v Wednesbury Corporation (supra) as being “so grossly unreasonable, so outrageous in defiance of logic or acceptable moral standards that no reasonable authority or body, addressing itself to the facts and the law would have arrived at it.” 72.Without prejudice to the primary submission that the court limited itself and found that the decision of the 1st respondent was illegal and irrational, counsel submitted that there has been a radical shift from the traditional approach of judicial review, which is entrenched in Article 47 (1) of the Constitution as cited by the 2nd and 3rd respondents in their application. 73.As counsel further submitted, section 7 of the Fair Administrative Action Act reveals an implicit shift of the scope of judicial review to include the inherent power of the Court to inquire into some aspects of the merit of the impugned administrative action. Counsel argued that, under the current constitutional dispensation, the court can delve into both procedural and merit review in resolving disputes; and that the Court lawfully applied the test as set out by the Court of Appeal and Supreme Court in the Suchan Investment and Dande cases (supra) and evaluated the merits of the 1st respondent’s decision. 74.On their part, and in opposition to the appeal, counsel for the 4th respondent submitted that the entrenchment of judicial review under the Constitution elevated it to a substantive and justiciable right; and that, accordingly, judicial review is no longer a strict administrative law remedy, but also a constitutional fundamental right enshrined in the Constitution. 75.Counsel further submitted that, following the promulgation of the Constitution and the enactment of the Fair Administrative Action Act, judicial review may, in appropriate cases, extend beyond the traditional common law grounds to encompass a limited measure of merit review. 76.According to counsel, it is clear that, where a party invokes the jurisdiction of the Court pursuant to the provisions of the Constitution, particularly in the context of alleged violations of constitutional rights or duties, the Court is enjoined to go beyond a mere procedural or formalistic review. Counsel urged that, in such instances, the Court is obligated to undertake a substantive and merit-based review of the impugned action or decision with a view to determining its constitutional validity. 77.Counsel further submitted that the proceedings in HCJR No. E009 of 20206 were commenced under Order 53 of the Civil Procedure Rules; that the High Court was moved pursuant to the provisions of Articles 10, 47 and 227 of the Constitution; that, consistent with that procedural framework, the learned Judge expressly identified the issues before him as whether the Board's decision was tainted by illegality and irrationality; and that the learned Judge therefore correctly appreciated that the Court's role was not to determine which bidder ought to have won the tender, nor to undertake a fresh evaluation of bids, but rather to interrogate whether the 1st respondent acted within the confines of the Act and the tender document in allowing the appellant’s bid despite having fallen short of the mandatory requirements. 78.According to counsel, in HCJR E010 of 2026 commenced by the 4th respondent pursuant to Article 47 of the Constitution and provisions of the Fair Administrative Actions Act, the learned Judge correctly confined himself to the analysis of uncontroverted evidence as set out by the Supreme Court in Saisi & 7 others v Director of Public Prosecutions & 2 others [2023] KESC 6 (KLR) where it was held that, under section 7 of the Fair Administrative Action Act, a court may undertake limited merit review only in respect of uncontroverted evidence, leaving disputed matters to the relevant body or authority. 79.Counsel further submitted that, where the Court merely interrogates the legality, rationality, procedural propriety and statutory compliance of the impugned decision and thereafter grants judicial review remedies, such as certiorari and prohibition, no substitution occurs; that, indeed, there was no substitution in the instant case; and that, in the present case, the Court merely quashed the impugned decision of the 1st respondent and did not award the tender, re-score the bids, re-evaluate technical specifications, declare the appellant non-responsive, or direct which bidder ought to succeed in the procurement process. 80.In view of the foregoing, counsel submitted that the learned Judge did not substitute the Review Board’s decision for that of his own, but merely exercised the supervisory jurisdiction of the High Court by interrogating the legality, rationality and procedural propriety of the impugned decision and, upon finding it to be unlawful, granted judicial review remedy of certiorari. 81.In the impugned decision in HCJR No. E089 of 2026, whose findings mirrored the judgment in HCJR E010 of 2026, the learned Judge held that:“ 56.Turning to the merits of the applicants’ application, I note from the statutory statement that the respondent’s decision is impugned on the judicial review grounds of illegality and irrationality. These grounds were defined by Lord Diplock in the English case of Council of Civil Service Unions versus Minister for the Civil Service (1985) A.C. 374, 410 as two of the three traditional grounds of judicial review …. 58.The applicants, as noted, are only concerned about the grounds of illegality and irrationality. Speaking of illegality, the question is whether the respondent acted in excess of jurisdiction and, in particular, whether its decision is ultra vires the express provisions of the Public Procurement and Asset Disposal Act and the regulations made thereunder. 59The applicants’ grievances which form the basis of this particular ground stem from the fact that despite the 1st interested party’s bid falling short of what was expressly prescribed in the tender document as mandatory requirements for a responsive tender, the respondent determined the bid to have met the threshold ostensibly because, in the respondent’s view, the omissions in the bid were negligible and that the 1st interested party either met or “largely” met the mandatory conditions … …. 101.The cumulative effect of the respondent’s conduct in blatantly overlooking the 1st interested party’s failure to comply with what was expressly stated in the tender document as mandatory requirements is that its decision is tainted on the grounds of illegality and irrationality.” 82.Notably, reference in the learned Judge’s decision to “the applicants” refers to the 2nd and 3rd respondents herein while “respondent” refers to the 1st respondent herein. That said, we hasten to observe that, in Kenya, the question whether a court hearing a judicial review application arising from a public procurement dispute should confine itself to the traditional supervisory role (reviewing only the legality of the decision-making process) or engage in a more intensive review that examines aspects of the merits has evolved significantly following the enactment of the Constitution of Kenya, 2010 and the Fair Administrative Action Act, 2015. 83.Striking the balance between the traditional supervisory role of reviewing only the legality of the decision-making process and undertaking a limited measure of merit review in Suchan Investment Ltd v Ministry of National Heritage & Culture & 3 others [2016] KECA 729 (KLR), this Court held that:“ 55.An issue that was strenuously urged by the respondents is that the appellant’s appeal is bad in law to the extent that it seeks to review the merits of the Minister’s decision while judicial review is not concerned with merits but propriety of the process and procedure in arriving at the decision. Traditionally, judicial review is not concerned with the merits of the case. However, Section 7 (2) (l) of the Fair Administrative Action Act provides proportionality as a ground for statutory judicial review. Proportionality was first adopted in England as an independent ground of judicial review in R v Home Secretary; Ex parte Daly [2001] 2 AC 532. The test of proportionality leads to a “greater intensity of review” than the traditional grounds. What this means in practice is that consideration of the substantive merits of a decision play a much greater role. Proportionality invites the court to evaluate the merits of the decision; first, proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions; secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations; thirdly, the intensity of the review is guaranteed by the twin requirements in Article 24 (1) (b) and (e) of the Constitution to wit that the limitation of the right is necessary in an open and democratic society, in the sense of meeting a pressing social need and whether interference vide administrative action is proportionate to the legitimate aim being pursued. In our view, consideration of proportionality is an indication of the shift towards merit consideration in statutory judicial review applications.” 84.The shift from the traditional approach in appropriate cases cannot be wished away. As the Court went on to observe:“ 56.Analysis of Article 47 of the Constitution as read with the Fair Administrative Action Act reveals the implicit shift of judicial review to include aspects of merit review of administrative action. Section 7 (2) (f) of the Act identifies one of the grounds for review to be a determination if relevant considerations were not taken into account in making the administrative decision; Section 7 (2) (j) identifies abuse of discretion as a ground for review while Section 7 (2) (k) stipulates that an administrative action can be reviewed if the impugned decision is unreasonable. Section 7 (2) (k) subsumes the dicta and principles in the case of Associated Provincial Picture Houses Ltd v Wednesbury Corp. [1948] 1 KB 223 on reasonableness as a ground for judicial review. Section 7 (2) (i) (i) and (iv) deals with rationality of the decision as a ground for review. In our view, whether relevant considerations were taken into account in making the impugned decision invites aspects of merit review. The grounds for review in Section 7 (2) (i) that require consideration if the administrative action was authorized by the empowering provision or not connected with the purpose for which it was take and the evaluation of the reasons given for the decision implicitly require assessment of facts and to that extent merits of the decision. It must be noted that the even if the merits of the decision is undertaken pursuant to the grounds in Section 7(2) of the Act, the reviewing court has no mandate to substitute its own decision for that of the administrator. The court can only remit the matter to the administrator and or make orders stipulated in Section 11 of the Act. On a case by case basis, future judicial decisions shall delineate the extent of merit review under the provisions of the Fair Administrative Action Act.” 85.In the same vein, in Okumu & another v Engineers Board of Kenya [2020] KECA 203 (KLR), this Court held that:“ 64.We may only add that by Article 23, the Constitution recognizes that the court, in appropriate cases can issue an order of judicial review and then goes ahead in Article 47(1) to command that:‘Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair’. 65.The intention of the framers of the above provision, in our view, was to extend the scope of judicial review beyond procedural fairness of the decision. This is also the spirit of section 7 of the Fair Administrative Action Act, which enjoins the court to inquire into questions of whether an administrative action or decision was materially influenced by an error of law; or was taken with an ulterior motive or purpose calculated to prejudice the legal rights of the applicant; or the administrator failed to take into account relevant considerations; or the administrative action or decision is not rationally connected to; the purpose for which it was taken, or connected to the information before the administrator; or the administrative action or decision is unreasonable; or is not proportionate to the interests or rights affected; or the decision is simply unfair; or taken or made in abuse of power.” 86.Affirming the dual approach and the need to undertake merit review in appropriate cases, the Supreme Court in Dande & 3 others v Inspector General, National Police Service & 5 others [2023] KESC 40 (KLR) held that:“ 85.It is clear from the above decisions that when a party approaches a court under the provisions of the Constitution then the court ought to carry out a merit review of the case. However, if a party files a suit under the provisions of order 53 of the Civil Procedure Rules and does not claim any violation of rights or even violation of the Constitution, then the court can only limit itself to the process and manner in which the decision complained of was reached or action taken and following our decision in SGS Kenya Ltd and not the merits of the decision per se …. 86.… we … find that the appellants had clothed their grievances as constitutional questions believing that their fundamental rights had been violated. Therefore, this required the superior courts to conduct a merit review of the questions before them and dismissal of their plea as one requiring no merit review was misguided. A court cannot issue judicial review orders under the Constitution if it limits itself to the traditional review known to common law and codified in order 53 of the Civil Procedure Rules. The dual approach to judicial review does exist as we have stated above but that approach must be determined based on the pleadings and procedure adopted by parties at the inception of proceedings.” 87.On the authority of the afore-cited cases, the dual approach in which the court pronounced itself on the propriety of the decision-making process as well as the legality or merits of the review application cannot be faulted, particularly where review is sought on, inter alia, breach of constitutional rights, as was the case here. Accordingly, the learned Judge was not at fault in rendering the impugned judgment on the basis complained of, and neither did any measures of merit review amount to substitution of the 1st respondent’s decision for that of his own. Accordingly, this ground of appeal fails. 88.Next is the 5th question as to whether the learned Judge’s decisions were founded on any part of the Public Procurement and Asset Disposal Regulations, 2020 previously declared unconstitutional. On this issue, counsel for the appellant submitted that the Public Procurement and Asset Disposal Regulations, 2020 were declared unconstitutional, null and void, by the High Court in Roads and Civil Engineering Contractors Association & another v Attorney General & another; Public Procurement Administrative Review Board & another (Interested Parties) [2025] KEHC 19224 (KLR) vide a judgment delivered on 4th December 2025. 89.Counsel cited the case of Macfoy v United Africa Co Ltd [1961] 3 All ER 1169 for the proposition that a law that has been declared unconstitutional is void ab initio and is, in law, a nullity incapable of conferring any right or of supporting any finding; and that a finding founded on a void instrument is itself void. 90.According to counsel, that judgment rendered the Regulations void ab initio with the consequence that they were incapable of conferring any right or of supporting any finding. Counsel contended that, notwithstanding the declaration of invalidity, the learned Judge relied on provisions of the said Regulations as the basis for material findings against the appellant’s tender. 91.Counsel further submitted that the learned Judge invoked regulation 75(1) of the 2020 Regulations as barring a procuring entity from accepting any tender that fell short of the mandatory requirements, as well as regulation 75(2) on the uniform application of minor deviations to reinforce his findings that the Review Board acted ultra vires sections 55, 60, 70(6), 79 and 80 of the Act. 92.In their submissions, counsel for the 2nd & 3rd respondents conceded that the Regulations had indeed been declared unconstitutional by the judgment cited by the appellant, but that the appellant overstated the role that the impugned regulations had played in the impugned judgments. 93.Counsel submitted that the learned Judge, in respect to the determination of non-responsiveness of the appellant's bid, correctly anchored his judgment in Sections 79 and 80 of the Act, which are the primary and self-instructing provisions of law, while reference to Regulations 74 and 75 were merely supplementary and only derived from the Act; that, notwithstanding the declaration of the Regulations as unconstitutional, the Act which is the primary legislation that outlines the general principles and rules of law governing procurement proceedings pursuant to Article 227 of the Constitution, remains in force; and that there is no lacuna on that front. 94.Counsel contended that the declaration affecting the Regulations does not remedy the appellant’s bid that failed to meet the mandatory requirements of the tender; and that, indeed, nowhere has the appellant pleaded nor proved that its bid was responsive. 95.On their part, counsel for the 4th respondent submitted that reference to the Regulations in the impugned judgment were merely ancillary and supplementary to the court's primary statutory analysis; that the court’s core findings rested on the provisions of sections 55, 60, 70(6), 79, 80(2) and 173 of the Act; and that the mere fact that the learned Judge referred to Regulations that had been declared unconstitutional did not, ipso facto, render the entire decision a nullity. Counsel contended that, even if the reference to the Regulations were disregarded entirely, the impugned judgments would remain sustainable and could independently stand on other lawful constitutional and statutory provisions relied on. 96In his judgment in HCJR No. E089 of 2026, which findings mirrored his judgment in HCJR E010 of 2026, the learned Judge held that:“ 63.As the consumer of the goods or services for which a tender has been floated, the procuring entity stands in a better position to set the basic minimum standards required of the goods or services and the qualifications of the tenderers bidding to deliver the goods or services tendered for. 64.It is for this reason that under section 79 of the Act, a tender is considered responsive only if it meets eligibility requirements under section 55 of the Act and mandatory requirements specified in the tender documents. Except in those limited circumstances which the Act considers as “minor deviations that do not materially depart from the requirements set out in the tender documents; or errors or oversights that can be corrected without affecting the substance of the tender”, mandatory requirements are not negotiable.” 97.As the learned Judge went on to observe:“ 65.For the avoidance of doubt, the procuring entity is prohibited from accepting any tender that falls short of the mandatory requirement. This is provided for under Regulation 75(1) of the Public Procurement and Asset Disposal Regulations, 2020 which is express that:A procuring entity shall reject all tenders, which are not in conformity to the requirements of section 79 of the Act and regulation 74 of these Regulations ….” 98.Citing the Act, the learned Judge had this to say:“ 98.Section 79. (2) (a) provides a window for what it considers as minor deviations that do not materially [depart] from the requirements set out in the tender. It reads as follows: 79.(2)A responsive tender shall not be affected by—(a)minor deviations that do not materially depart from the requirements set out in the tender documents; 99.Regulation 75. (2) of the regulations provides that the classification of a deviation from the requirements as minor under section 79(2)(a) of the Act must be applied uniformly and consistently to all tenders received by a procuring entity.” 99.As the learned Judge correctly observed in the decisive paragraphs of the impugned judgment:“ 100What this means is that deviations cannot be applied selectively to the advantage of one tenderer against the rest of his competitors in the tender. If deviation is a factor in the procurement process, irrespective of whether it applies to the technical specifications or to any other aspect of the procurement process, the degree to which any of the bidders have deviated must be considered and, most probably, it is for this reason that the procuring entity required a schedule of the deviations, to enable it gauge the level of compliance with the technical specifications by each of the bidders. Without the schedule of the deviations, it would be impossible to evaluate this aspect of the procurement process. 101.The cumulative effect of the respondent’s conduct in blatantly overlooking the 1st interested party’s failure to comply with what was expressly stated in the tender document as mandatory requirements is that its decision is tainted on the grounds of illegality and irrationality. 102.Mandatory requirements in any particular tender have, as noted earlier in this judgment, a statutory backing. If I may recapitulate, sections 60(1) and (2) as read with section 70(6) enjoin an accounting officer of a procuring entity to set forth in a tender the specific requirements relating to goods or services for which a tender is floated. Some of those requirements are necessarily set as mandatory requirements in order to, inter alia, guard against compromising the quality of the goods or services sought to be procured. It has been noted that under section 79 of the Act a tender is considered responsive only if it meets eligibility requirements under section 55 of the Act and mandatory requirements specified in the tender documents. And Regulation 75(1) of the Public Procurement and Asset Disposal Regulations, 2020 bars a procuring entity from accepting any tender that falls short of the mandatory requirement …. 112.For the same reason, the decision was ultra vires sections55, 60(1) and (2); 70(6), 79 and 80 (2) of the Public Procurement and Asset Disposal Act and regulation 75(1) of the Public Procurement and Asset Disposal Regulations, 2020.” 100.In our considered view, reference to the Regulations in the impugned judgment was inconsequential. While the learned Judge ought to have avoided such reference, he nonetheless anchored his judgment on various sections of the Act, which are clearly cited as the basis of his decision. Accordingly, we find nothing to suggest that the impugned judgment was founded entirely on Regulations previously declared unconstitutional by a High Court decision that has neither been set aside nor appealed from. Indeed, the more decisive questions, to which we now turn, are whether the High Court correctly applied the provisions of the Act and whether its conclusion that the appellant’s bid was non-responsive was free from error. In the circumstances, we find that this ground of appeal fails. 101.On the 6th question as to whether the learned Judge erred in finding the appellant’s bid non-responsive, counsel for the appellant submitted that, even assuming the learned Judge was entitled to interrogate the merits of the Review Board's decision, he nevertheless erred in each of his specific findings of non- responsiveness. 102.On the issue of tax compliance, counsel submitted that the tender expressly permitted a bidder to submit a “valid/current tax compliance certificate or equivalent”; that, as a Finnish company, the appellant could not reasonably have been expected to produce a Kenya Revenue Authority certificate; that the Finnish Certificate of Paid Taxes, issued by the Finnish Tax Administration, was precisely the equivalent document the tender contemplated; and that, in any event, any query as to the currency or authenticity of that certificate was a matter properly reserved for the due diligence stage under section 83 of the Act and ITT 37 of the tender document, and not a ground for disqualification at preliminary evaluation. 103.On quality certification, counsel contended that the learned Judge mechanically found that the appellant's ISO certifications did not satisfy the requirement for a valid quality certificate, notwithstanding that this requirement also carried the qualifier “or equivalent”; that, where a procuring entity drafts a mandatory requirement in ambiguous terms, that ambiguity must be resolved against its author under the contra proferentem rule; and that the learned Judge ought accordingly to have given effect to the “or equivalent” qualifier and construed the clause against the Procuring Entity that drafted it. 104.With regard to the requirement to disclose beneficial ownership, counsel submitted that the learned Judge erred in treating beneficial ownership disclosure as a mandatory pre-award requirement; that Form No. 8 of the tender document contemplated such disclosure only after notification of award; that, in requiring it earlier, the Court effectively imported an evaluation criterion not found in the tender document, contrary to section 80(2) of the Act. 105.On the question of authorised representation, counsel contended that the learned Judge failed to appreciate that Section III, Clause 5 of the tender document draws a clear distinction between a tendering firm’s duly authorised representative and a separate officer holding a Power of Attorney; that the designation of M/s Power Parts (Kenya) Limited as the appellant's local representative, alongside Mr. Jinesh Manian as holder of the power of attorney, was not contradictory but reflected two distinct roles expressly contemplated by the tender, and could not properly found a finding of non-responsiveness. 106.Concerning the schedule of deviations, counsel contended that the learned Judge further erred in holding that the appellant was obliged to submit a separate schedule of deviations under Clause 2.2(xiv); that that clause applies only where a bidder acknowledges deviations from the prescribed specifications; that, since the appellant’s bid substantially complied with, and in certain respects exceeded, those specifications, no such schedule was required; that, in any event, section 79(2)(a) of the Act expressly provides that a responsive tender is not rendered non- responsive by minor deviations falling short of material non- compliance; and that the learned Judge erred in equating the two. 107.Submitting on the Review Board’s remedial powers, counsel contended that it follows that the learned Judge was wrong to hold that the Review Board exceeded its powers in directing reinstatement of the appellant's bid; that that decision was rational, fell squarely within the Board's remedial mandate under section 173 of the Act, and was properly directed at correcting an unlawful preliminary evaluation by the procuring entity. 108On the governing standard of responsiveness, counsel relied on Republic v Public Procurement Administrative Review Board; Kenya Medical Supplies Authority (KEMSA) (Interested Party) Ex Parte Emcure Pharmaceuticals Limited [2019] KEHC 2976 (KLR), for the proposition that a responsive tender is one meeting all material or substantial requirements of the invitation, with minor deviations, errors, or omissions properly condoned where they do not affect the tender's substance and can be corrected without altering the bid; and on Republic v Public Procurement Administrative Review Board; Arid Contractors & General Supplies (Interested Party) Ex Parte Meru University of Science & Technology [2019] KEHC 1935 (KLR), for the proposition that non-compliance with prescribed conditions warrants disqualification only where those conditions are neither immaterial, unreasonable, nor unconstitutional. 109Relying on the South African authorities of Allpay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer, South African Social Security Agency and Others [2014] ZACC 12; Minister of Social Development and Others v Phoenix Cash & Carry Pmb [2007] ZASCA 26; and Norland Construction (Pty) Ltd v Chris Hani Development Agency (SOC) Limited and Another [2024] ZAECMKHC 10, counsel further submitted that procuring entities ought to adopt a purposive approach to bid responsiveness, one that advances fairness, transparency, competitiveness, and cost-effectiveness rather than disqualifying bidders for what counsel considered as minor procedural defects. 110In rebuttal, learned counsel for the 2nd and 3rd respondents identified the central question before this Court: whether the learned Judge properly exercised his discretion in quashing the 1st respondent’s decision. Counsel cited the case of Mbogo and Another v Shah (1968) EA 93 for the settled principles guiding this Court when invited to interfere with a lower court's exercise of discretion, namely: where it is satisfied that the decision below is plainly wrong; because the Judge misdirected himself; acted upon matters he ought not to have considered; or omitted matters he ought to have considered, thereby arriving at a wrong conclusion. 111.According to counsel, this principle is reinforced by Energy Regulatory Commission v SGS Kenya Ltd & 2 others [2018] KECA 616 (KLR), which confirms that the learned Judge would only have been entitled to interfere with the 1strespondent’s decision if that decision was plainly and self-evidently devoid of evidence or basis. 112.Measured against this threshold, counsel submitted, the learned Judge’s decision withstands scrutiny: it was neither unsupported by evidence nor divorced from the record; that, to the contrary, the learned Judge correctly found that the appellant’s bid was non-responsive for failing to satisfy several mandatory preliminary requirements of the tender document. 113.On the requisite Tax Compliance Certificate, counsel submitted that the tender document mandated proof, at the preliminary evaluation stage, of a valid and current Tax Compliance Certificate; that the learned Judge correctly found that the 1st respondent exceeded its jurisdiction and acted irrationally in clearing a certificate whose validity period could not be ascertained at that stage; that it was equally irrational for the 1st respondent to conclude that the certificate’s validity could instead be ascertained after the tender had already been awarded, a conclusion that inverted the tender document’s clear requirement that validity be established at the preliminary stage as a precondition of responsiveness. 114.With regard to quality certification, counsel pointed out that the tender document unequivocally required certification confirming that the manufacturer’s systems were certified for design and manufacturing processes; that the learned Judge correctly held that it was not open to the 1st respondent to substitute a materially different certificate (one relating to the assembly of port machinery and load handling equipment) in place of this express requirement. 115.On the issue as to the requirement to disclose beneficial ownership, counsel submitted that the tender document required mandatory disclosure of the appellant’s beneficial owners at the preliminary evaluation stage; that the 1st respondent’s decision to defer this disclosure to the post-qualification due diligence stage was irrational, as it disregarded the tender’s clear requirement that such information be available and assessed at evaluation, and not after. 116.As regards the required schedule of deviations, counsel submitted that the tender document mandated a separate schedule of deviations wherever a bidder’s technical specifications departed from those prescribed by the procuring entity; that the learned Judge correctly held that the 1st respondent's decision was both illegal and irrational in excusing the appellant from this requirement on the unsubstantiated basis that it had “largely complied” with the technical specifications, a characterisation that presupposed, without evidentiary foundation, the very degree of compliance in dispute. 117.Simply put, counsel submitted that on each of the foregoing grounds, the 1st respondent’s decision reflected material errors going to jurisdiction and rationality; that none of the findings by the learned Judge may be characterised as plainly wrong or devoid of evidentiary basis; and that, accordingly, no basis exists under the Mbogo v Shah threshold for this Court to interfere with the exercise of the learned Judge's discretion. 118On their part, learned counsel for the 4th respondent submitted that the learned Judge correctly held that the Review Board acted unlawfully by treating a bid that failed mandatory preliminary requirements as responsive; that the mandatory requirement under Clause 5(ii)(b) of Section III of the Tender Document required a “Valid/Current Tax Compliance Certificate or equivalent;” that the words “Valid” and “Current” are unambiguous qualifiers requiring that the certificate be demonstrably valid and current on its face at the time of submitting the tender; that the certificate submitted by the appellant was undated and, therefore, incapable of demonstrating, on its face, that it was valid and current at the material time; and that the learned Judge correctly held that section 83 of the Act, which concerns post-qualification due diligence, could not be invoked to cure noncompliance with a mandatory preliminary requirement. 119.With regard to quality certification, counsel submitted that the mandatory requirement under Clause 5(v) of Section III of the Tender Document required a “Valid quality certificate for the manufacturing company stating clearly that their systems are certified for design and manufacturing processes i.e. ISO certification or equivalent;” that the certificates relied upon by the appellant referred to sales, maintenance and assembly activities, but did not clearly state certification for design and manufacturing as required by the tender document; that the learned Judge correctly noted that the mandatory preliminary requirements could not be deferred to the due diligence stage; and that, therefore, the learned Judge correctly held that the 1st respondent acted contrary to section 80(2) of the Act by effectively rewriting a mandatory requirement. 120.On the requirement to disclose beneficial ownership, counsel pointed out that the Tender Information Form (Form 6) set out in Section IV of the Tender Document expressly required each bidder to include in its bid an organizational chart, a list of Board of Directors, and the beneficial ownership. According to counsel, it was not disputed that the appellant omitted this information. Accordingly, counsel argued, the learned Judge correctly rejected the argument that disclosure could be deferred to the post-award stage. 121.Regarding the Schedule of Deviations, counsel submitted that Clause 2.2(xiv) of the Tender Document mandatorily required that, in the case of deviations from the specifications given in the Tender Document, “a separate schedule of deviations shall be prepared” signed and stamped by the manufacturer; that the appellant acknowledged before the 1st respondent that its bid deviated from certain technical specifications, characterizing those deviations as “enhancements,” but did not provide the required schedule; and that, therefore, the learned Judge correctly held that the 1st respondent acted irrationally in treating the bid as responsive notwithstanding non-compliance with a mandatory requirement. 122Counsel further submitted that the appellant’s argument that section 79(2) (a) of the Act, which provides that a responsive tender shall not be affected by minor deviations that do not materially depart from the requirements, applied to its bid, was flawed and should fail; and that section 79(2) (a) of the Act applies to minor deviations that are quantified and taken into account in the evaluation, but does not entitle a bidder to entirely omit a mandatory requirement. 123.Counsel cited the case of Sinopec International Petroleum Service Corporation v Public Procurement Administrative Review Board & 3 Others [2024] KECA 184 (KLR) where this Court distinguished minor informalities (which do not make a bid non-responsive) from material nonconformities (which require disqualification regardless of whether they were intentional or accidental); stressed that mandatory tender requirements cannot be waived; and that procuring entities must strictly follow their own tender documents and the law when evaluating bids. 124.In the impugned judgment in HCJR No. E009 of 2026, which mirrored his later decision in HCJR E010 of 2026, the learned Judge framed the 2nd, 3rd and 4th respondents’ grievance as arising from the fact that, notwithstanding the appellant’s bid falling short of expressly prescribed mandatory requirements, the 1st respondent had nonetheless found its bid responsive on the footing that the omissions were negligible, and that the mandatory conditions had been “largely” met. 125.On the general principle governing the mandatory requirements, the learned Judge held that the concept of mandatory requirements finds its statutory anchor in section 60(1) and (2) as read with section 70(6) of the Act and observed that a procuring entity, being the consumer of the goods or services tendered for, is best placed to prescribe the minimum standards and qualifications expected of tenderers. It was for this reason, he held, that section 79 of the Act renders a tender responsive only where it satisfies the eligibility requirements under section 55 and the mandatory requirements set out in the tender documents, save in the narrow circumstances contemplated by the Act as “minor deviations that do not materially depart from the requirements set out in the tender documents; or errors or oversights that can be corrected without affecting the substance of the tender.” Outside those confines, he held, mandatory requirements are not negotiable. 126.Applying this framework, the learned Judge identified four requirements of particular relevance: (a) a valid or current tax compliance certificate or its equivalent; (b) a valid quality certificate for the manufacturing company; (c) disclosure of beneficial ownership; and (d) a schedule of deviations from the tender specifications. 127.With regard to the tax compliance certificate, the learned Judge addressed himself to the requirement under clause 2.2(5)(ii) of the tender document and observed that the appellant had submitted, in purported compliance, a certificate of paid taxes issued by the Government of Finland, which certified that “the taxpayer has paid all their taxes, charges and other debts to the Tax Administrator as well as filed the required tax-related reports in the past 12 months.” He held, however, that the certificate was undated and that it was accordingly impossible to determine to which period the phrase “the past 12 months” referred, or whether that period coincided with the material tender period. 128.Consequently, the learned Judge rejected the 1st respondent’s resort to due diligence as a means of curing this defect, holding that due diligence is a discretionary post-evaluation exercise intended to confirm and verify, but not to supply, compliance with mandatory requirements; and that it cannot be invoked to rescue a bid that was non-responsive at the stage of preliminary evaluation. He accordingly held that an undated certificate, incapable on its face of establishing currency as at the material time, could not satisfy the requirement of “a Valid/Current Tax Compliance Certificate or equivalent.” 129.On the quality certification requirement, the learned Judge considered the provisions of clause 2.2(5)(ii)(v), which required a “valid quality certificate for the manufacturing company stating clearly that their systems are certified for design and manufacturing processes,” and observed that the certifications tendered in the form of an ISO 9001 certificate relating to sales, spare parts and maintenance services, and a further certificate held by a subsidiary relating to port machinery and load-handling equipment, did not, on their terms, certify design and manufacturing processes as required by the tender document. 130.According to the learned Judge, it was not open to the 1st respondent to substitute its own view of what would suffice for the requirement expressly stipulated, and the sufficiency of a mandatory certification could not be deferred to the due diligence stage. He further held that, to the extent any ambiguity existed as to the scope of the certification required, clause 6 of the tender document afforded the appellant recourse to seek clarification, a course it did not take, and upon which it could not now be permitted to rely by way of ex post facto justification. 131.On the mandatory requirement to disclose beneficial ownership of tenderers, the learned Judge held that disclosure of the beneficial ownership of the tendering company, including an organisational chart showing the Board of Directors and beneficial owners, was a mandatory requirement, and that it was common ground that the appellant had not furnished this information. He rejected the 1st respondent’s acceptance of the appellant’s contention that such disclosure was required only post-award, holding it “illogical and, in the language of judicial review, irrational” that information necessary to determine the responsiveness of a tender could be deferred to a stage occurring after the award had already been made. He held further that a tenderer cannot be excused from a mandatory requirement merely because the tender form provided insufficient space for the information, nor may a tenderer unilaterally elect the stage at which mandatory information is to be furnished. According to the learned Judge, recourse to clause 6 for clarification was available but was not taken. 132.Turning to the schedule of deviations, the learned Judge addressed himself to clause 2.2(xiv) and observed that the appellant had furnished no schedule of deviations, notwithstanding the 1st respondent's own finding that the appellant’s specifications were only “largely,” and not entirely, in accordance with those required, a finding which the learned Judge held that it necessarily implied the existence of some deviation; that the obligation to furnish a schedule of deviations arises wherever a bidder's specifications fall short of the required threshold, irrespective of the degree of shortfall, since particularisation of deviations is indispensable to a proper comparative evaluation of competing bids; that absent such a schedule, it would be impossible to evaluate this aspect of the tender at all; and that deviations could not be assessed selectively so as to favour one tenderer over its competitors. 133.Drawing these strands together, the learned Judge correctly held that the cumulative effect of the 1st respondent's disposition of these four matters was that the appellant had, in substance, been evaluated against a materially less stringent set of mandatory requirements than its competitors, a result he described as contrary to the letter and spirit of the law; and that the 1st respondent's decision was accordingly unreasonable in the Wednesbury sense, being one “so grossly unreasonable, so outrageous in defiance of logic or acceptable moral standards that no reasonable authority or body, addressing itself to the facts and the law, would have arrived at it.” He held further that the decision was ultra vires sections 55, 60(1) and (2), 70(6), 79 and 80(2) of the Public Procurement and Asset Disposal Act and regulation 75(1) of the Public Procurement and Asset Disposal Regulations, 2020; that the 1st respondent had exceeded the jurisdiction conferred upon it by section 173(1) of the Act; and that, in overlooking mandatory conditions to clear an otherwise non-responsive bid, the 1st respondent had misapprehended the law governing its decision-making power, rendering the decision liable to be quashed on the ground of illegality. 134.Having carefully considered the rival submissions of learned counsel on the four mandatory requirements so meticulously examined by the learned Judge albeit punctuated by needless, occasional but inconsequential reference to Regulations, we come to the conclusion that the learned Judge was by no means at fault and left no stone unturned to uncover the 1st respondent’s flaws in the impugned award. 135.We call to mind the provisions of section 60 of the Act, which mandates the accounting officers of procuring entities to prepare, with clarity, specific requirements to facilitate evaluation of bids in response to tenders in the process of public procurement of goods, works or services. Section 60 reads:60.Specific requirements1.An accounting officer of a procuring entity shall prepare specific requirements relating to the goods, works or services being procured that are clear, that give a correct and complete description of what is to be procured and that allow for fair and open competition among those who may wish to participate in the procurement proceedings.2.The specific requirements shall include all the procuring entity’s technical requirements with respect to the goods, works or services being procured. 136.Section 70 provides the statutory form of the standard tender documents issued by procuring entities, and expressly provides that the tender documents shall include the specific requirements unique to the particular tender as prepared pursuant to section 60.Section 70 of the Act reads: 70.Standard tender documents 1.The Authority shall issue standard procurement and asset disposal documents and formats as prescribed for use by procuring entities. 2.A procuring entity shall use standard procurement and asset disposal documents prescribed under subsection (1), in all procurement and asset disposal proceedings. 3.The tender documents used by a procuring entity pursuant to subsection (2) shall contain sufficient information to allow fair competition among those who may wish to submit tenders. 4.An accounting officer of a procuring entity shall be responsible for preparation of tender documents in consultation with the user and other relevant departments. 5.A procuring entity may charge a fee for obtaining tender documents as prescribed by regulations and stated in the tender documents. 6.The tender documents shall set out the following—(a)the specific requirements prepared under section 60 relating to the goods, works or services being procured and the time limit for delivery or completion;… …;(e)instructions for the preparation and submission of tenders including—i.the forms for tenders;ii.the number of copies to be submitted with the original tender;iii.any requirement that tender security be provided and the form and amount of any such security;iv.any requirement that evidence be provided of the qualifications of the person submitting the tender;… …;(vi)the procurement function ensuring that where necessary, the preferences and reservations of the tender are clearly spelt out in the bidding documents;… …;(i)the procedures and criteria to be used to evaluate and compare the tenders;… …;(l)anything else required, under this Act or the regulations, to be set out in the tender documents. 137.In addition to the foregoing, section 79 of the Act provides for evaluation of responsiveness and qualification of a tender as well as the effect of minor deviations that do not materially depart from tender requirements, or oversights or errors liable to correction without prejudicing the rights of other bidders. The section reads:79.Responsiveness of tenders 1.A tender is responsive if it conforms to all the eligibility and other mandatory requirements in the tender documents. 2.A responsive tender shall not be affected by—a.minor deviations that do not materially depart from the requirements set out in the tender documents; orb.errors or oversights that can be corrected without affecting the substance of the tender. 3.A deviation described in subsection (2)(a) shall—a.be quantified to the extent possible; andb.be taken into account in the evaluation and comparison of tenders. 138.Section 80 stipulates the process of evaluation of tenders, and restricts the evaluation to the procedures and objective criteria specified in the tender documents. The section reads:80.Evaluation of tenders1.The evaluation committee appointed by the accounting officer pursuant to section 46 of this Act, shall evaluate and compare the responsive tenders other than tenders rejected. 2.The evaluation and comparison shall be done using the procedures and criteria set out in the tender documents and, in the tender for professional services, shall have regard to the provisions of this Act and statutory instruments issued by the relevant professional associations regarding regulation of fees chargeable for services rendered. 3.The following requirements shall apply with respect to the procedures and criteria referred to in subsection (2)—a.the criteria shall, to the extent possible, be objective and quantifiable;b.each criterion shall be expressed so that it is applied, in accordance with the procedures, taking into consideration price, quality, time and service for the purpose of evaluation;…. 4.The evaluation committee shall prepare an evaluation report containing a summary of the evaluation and comparison of tenders and shall submit the report to the person responsible for procurement for his or her review and recommendation. 139.Addressing itself to the import of sections 60, 70, 79 and 80 of the Act in Sinopec International Petroleum Service Corporation v Public Procurement Administrative Review Board & 3 others [2024] KECA 184 (KLR), this Court had this to say:“ 51.In public procurement regulation, it is a general rule that procuring entities should consider only conforming, compliant or responsive tenders. Tenders should comply with all aspects of the invitation to tender and meet any other 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 purpose of supplying information to bidders for the preparation of tenders and amount to injustice if some bidders were allowed to bypass tender conditions. It is imperative for bidders to compete on an equal footing. Furthermore, tenderers have a legitimate expectation that the procuring entity will comply with its own tender conditions …. 53.A bid that contains minor informalities is not considered non- responsive. However, in the case of material nonconformities, it is immaterial whether the nonconformity is deliberate or occurs by mistake, or whether the bidder is willing to correct or modify the bid to conform to the terms of the invitation. It is very important to appreciate the difference between formal shortcomings, which go to the heart of the process, and the elevation of matters of subsidiary importance to a level which determines the fate of the tender. In this case, the bid documents contained clear instructions to bidders …. A procuring entity is bound by its bid documents. Mandatory conditions cannot be waived. The Evaluation Committee had no choice but to evaluate the bids in accordance with the eligibility and mandatory requirements of the tender documents by examining the documents before it.” [emphasis ours] 140.In Sharpcut Designers Ltd v Public Procurement Administrative Review Board & 2 others [2025] KECA 1132 (KLR), this Court held that:“ 35.…. We must reiterate that a bid must be considered responsive or otherwise within the express provisions of the terms of the tender. The obligation to determine what is mandatory and its importance in the tendering process remains with the tendering entity. We must only add that such mandatory terms must be express and certain and within the express procedural and statutory safeguards of the PP&AD Act. To this extent, we refer with approval to the views of Chigiti, J. in Vickers Security Services Limited & 2 Others v Public Procurement Administrative Review Board; Hatari Security Guards Limited (Interested Party) [2025] KEHC 1648 (KLR) thus: ‘125.Certainty in public procurement refers to the predictability and clarity of the rules and procedures governing the awarding of contracts. A well-structured procurement process builds confidence among stakeholders, especially suppliers, who need to understand how decisions are made and what criteria will be used to evaluate their bids. 126.If the court was to allow for parties to continue failing to comply with multiple requirements provided for in tender documents then the same would be unfair to tenders as there would be no certainty on what exactly the rules and procedures of any tender are.’ 36.…. The discretionary power remains with the procuring entity to determine what clarifications it will seek from a bidder and what the mandatory terms of the tender are. Indeed, asking a tenderer to clarify its bid can at times be unfair to other tenderers and the discretion to seek clarification should be exercised by the bidding entity with circumspection. The concern of a review court should strictly concern the fairness of the process as opposed to overreaching and re-determining the terms of the tender.” 141.In this case, Section III of the tender document contained the criteria that the procuring entity was bound to use to evaluate the tenders and qualify tenderers. Clause 1.2 thereof, which is couched in mandatory terms, expressly provides that:“No other factors, methods or criteria shall be used other than those specified in this tender document. The Tenderer shall provide all the information requested in the forms included in Section IV, Tendering Forms.” 142.Clause 2.2 of Section III set out the criteria for the preliminary examination of bids and provides as follows:“ 2.2Preliminary examination for Determination of ResponsivenessThe Procuring Entity will start by examining all tenders to ensure they meet in all respects the eligibility criteria and other mandatory requirements in the ITT, and that the tender is complete in all aspects in meeting the requirements provided for in the preliminary evaluation criteria outlined below. Tenders that do not pass the Preliminary Examination will be considered non- responsive and will not be considered further.The bid submission 1. … …. 2.… …. 5.Shall be signed (where signatures are required) by a duly authorized representative of the firm or any other officer appointed and evidenced by a Power of Attorney (Mandatory).The bid submission shall contain the following documents; clearly marked and arranged in the following order: -i.Power of Attorney to sign the bid submission - ITT 19.3 (Mandatory)ii.Particulars of Tendering Company to include: -a.Certificate of Registration/Incorporation (Mandatory).b.Valid/Current Tax Compliance Certificate or equivalent (Mandatory).… ….iii.All duly completed and signed mandatory tendering forms under section IV (MANDATORY).… ….v.Valid quality certificate for the manufacturing company stating clearly that their systems are certified for design and manufacturing processes i.e. ISO certification or equivalent (Mandatory).… ….xiv.Tenderer’s Technical specifications and drawings. This should be in form of a clause-by-clause commentary on the Procuring Entity’s Technical Specifications demonstrating substantial responsiveness of the Equipment to those specifications, or a statement of deviations and exceptions to the provisions of the Technical Specifications. Tenderer’s technical specifications shall not be a reproduction of the Procuring Entity’s specifications and supported by drawings and detailed brochures. In the case of deviations from the specifications given herein, a separate schedule of deviations shall be prepared. This may be accompanied by an account explaining how the departure from the technical specifications of the tender affects the Terminal Tractors performance, durability and overall dimensions and why the tenderer will choose to offer the Terminal Tractors with the stated deviation as opposed to complying. This shall be signed and stamped by the manufacturer. (Mandatory).… ….” 143.With regard to the mandatory requirement to submit a valid/current tax compliance certificate or equivalent, it is not lost on us that the appellant submitted a document titled “Certificate of Paid Taxes”, issued by the Finnish Tax Administration and bearing Document No. L0425442403. The certificate stated that the appellant had “paid all their taxes, charges and other debts to the Tax Administration as well as filed all the required tax-related reports in the past 12 months.” However, the document was undated and did not disclose the date of its issuance. Consequently, it was not possible to ascertain, from the face of the document, the period to which the phrase “the past 12 months” referred. To our mind, the undated document could not possibly demonstrate the requisite currency in compliance with the mandatory requirements expressly set out in the tender document. 144.In view of the foregoing, the learned Judge rightly found that the document could not be considered to have met the mandatory preliminary evaluation criteria of a valid/current tax compliance certificate as required under Section III Clause 2.2 (iii) (a) of the Tender Document. For this reason, the learned Judge correctly faulted the 1st respondent's view that there was no sufficient basis to disqualify the document on the ground that its validity or currency could be verified with the Finnish Tax Authorities during the subsequent due diligence stage. It is instructive that the tender document mandatorily required the submission of a tax compliance certificate, or its equivalent, on the face of which the tenderer’s tax compliance could readily be ascertained at the preliminary evaluation stage. We need not overemphasise the fact that that mandatory requirement was not open to waiver at the 1st respondent’s discretion (see Sinopec International Petroleum Service Corporation v Public Procurement Administrative Review Board & 3 others; and Vickers Security Services Limited & 2 others v Public Procurement Administrative Review Board; Hatari Security Guards Limited (Interested Party) (supra)). 145.On the mandatory requirement of quality certification, we hasten to observe that, while Section III Clause 2.2 (v) of the tender document required, on mandatory terms, submission of a quality certificate clearly stating that the tenderer’s systems were “certified for design and manufacturing processes i.e. ISO certification or equivalent”, the appellant submitted an ISO 9001:2015 Certificate of Approval certifying that its management system was approved for “Sales of material handling equipment, spare parts and other solutions. On-demand and contract maintenance services of material handling equipment.” In addition, the appellant submitted an ISO 9001:2015, ISO 14001:2026 and ISO 45001:2018 Certificate of Approval issued to its subsidiary, Kalmar Industries (China) Co. Ltd, certifying that the subsidiary’s management system was approved for “Assembly of port machinery and load handling equipment.” 146.To our mind, the appellant’s certificates aforesaid, whose scope was limited to sales and maintenance of material handling equipment, assembly of port machinery and load handling equipment, could not be equated to certification for design and manufacturing processes. As the learned Judge correctly observed, there was a certification scope mismatch, contrary to the mandatory requirements of the tender document, a disparity that could not be deferred to the due diligence stage in view of the fact that the tender document required submission of quality certification for design and manufacturing processes ascertainable at the preliminary examination stage. To hold otherwise would have been tantamount to according the appellant differential treatment in disregard of the mandatory requirements expressly set out in the tender document, and to the prejudice of other bidders. 147.With regard to the requisite beneficial ownership disclosure, Section III Clause 2.2 (iii) of the tender document mandatorily required tenderers to submit completed and signed mandatory tender forms under section IV of the tender documents. Among them was Form No. 6 - Tenderer Information Form, which required the tenderer to include “the organizational chart, a list of Board of Directors, and the beneficial ownership.” It is not disputed that the appellant did not include information as to its beneficial ownership alongside its Tenderer Information Form as required. 148.Accordingly, the learned Judge correctly faulted, and rightly characterised as irrational, the 1st respondent’s decision on this issue for erroneously concluding that Form No. 6 did not elaborate on the nature of the information required as to beneficial ownership, and that it provided no space to fill in the required information. In any event, the tender document did not require the organizational chart, list of Board of Directors and the beneficial ownership to be set out in the limited space provided in the form, but that the information be included alongside the form. As the learned Judge correctly observed, it was open to the appellant to seek clarification from the 2nd and 3rd respondents pursuant to Section I Clause 6 of the tender document as to the nature and manner of presentation of the requisite information. 149.Concerning the Schedule of Deviations, Section III Clause 2.2 (xiv) required tenderers to expressly disclose all deviations by preparing a separate signed and stamped schedule of deviations in any case where their equipment deviated from the procuring entity’s technical specifications. The schedule could be accompanied by an explanation of how the deviations would affect the Terminal Tractors’ performance, durability, and overall dimensions, and the reasons for offering equipment with those deviations instead of complying with the prescribed specifications. 150.It is not in dispute that the appellant’s bid deviated from the tender specifications for the tractors’ front axle, chassis and hydraulic system. Despite those deviations, the appellant did not submit, along with its bid, a schedule of deviations in compliance with the mandatory requirements expressly set out in the tender document. The appellant’s explanation was that it had submitted comprehensive technical specifications in its clause-by-clause commentary; and that a schedule of deviations was not necessary because its bid substantially complied with or exceeded the tender specifications. 151.In this regard, the learned Judge correctly held that the 1st respondent’s finding that the appellant’s technical specifications were “largely in accordance” with the technical specifications, and that it was therefore responsive to the requirement, amounted to reliance on an evaluation criterion not provided for in the tender document; and that, therefore, it amounted to an illegal and irrational decision. It is indubitable that the tender document required the preparation of a schedule of deviations regardless of whether those deviations failed to meet or exceeded the required technical specifications. As the learned Judge correctly observed, the schedule of deviations was a crucial and indispensable document intended to facilitate efficient comparison, at the preliminary evaluation stage, of the bidders’ level of compliance with the technical specifications. 152.With regard to the responsiveness of the appellant’s bid, we can only conclude that the deviations in the appellant’s bid from the mandatory tender requirements were material and could not be cured by invoking section 79(2) of the Act. Accordingly, the learned Judge was not at fault in finding that the appellant’s bid was non-responsive; that the 1st respondent’s decision allowed the appellant’s bid to be evaluated on less stringent criteria not set out in the tender document to the disadvantage of the other bidders; that the 1st respondent’s decision fitted the description of Wednesbury-unreasonableness; and that the 1st respondent’s decision was ultra vires sections 55, 60(1) and (2), 70(6), 79 and 80(2) of the Act. 153.As we conclude on these issues, we make some observations regarding the scope and objective of section 83 of the Act, which concerns post-qualification due diligence. Subsection (1) of the provision reads; 83 (1) An evaluation committee may, after tender evaluation, but prior to the award of the tender, conduct due diligence and present the report in writing to confirm and verify the qualifications of the tenderer who submitted the lowest evaluated responsive tender to be awarded the contract in accordance with this Act. 154.The due diligence contemplated by this provision comes after tender evaluation carried out by dint of Section 80. In the unambiguous language of the provision, it is a post-qualification exercise to confirm and verify the qualifications of the tenderer who has submitted the lowest evaluated responsive tender. As a matter of simple logic, the due diligence cannot be deployed to “confirm and verify” a tender which on the face of it does not conform to all eligibility and mandatory requirements so as to make it responsive. To do so would be to rig a non- responsive tender into the evaluation stage. This would be an impermissible and unlawful expansion of the scope and objective of that exercise. Had the Finnish Certificate complied with the requirement of a “Valid/Current Tax Compliance Certificate” and the appellant met all the criteria as the lowest responsive tender, then section 83 could be used to confirm and verify that the Finnish Certificate was authentic. For that reason, we do not accept the argument by the appellant before us, as also taken up before the High Court, that the post evaluation due diligence could be used to verify whether the foreign document complied with the mandatory requirement of a “Valid/Current Tax Compliance Certificate”. In the end, the learned Judge was spot-on in his rejection of the argument. 155.Turning to the 7th issue as to whether the learned Judge’s decision was against the grain of Article 227(1) of the Constitution, counsel for the appellant correctly submitted that Article 227 requires public procurement systems to be fair, equitable, transparent, competitive and cost-effective; and that, in addition, the public purse and, indeed, public interest, remain at the centre of the rights of competing tenderers. 156.Counsel further submitted that the appellant’s tender sum for Lot 1 and Lot 2 of the subject tender was USD 5,143,125.27 and USD 678,583.21 respectively, compared to the winning bidders’ (4th and 5th respondents’) tender sum of USD 7,680,827.50 and USD 957,600.00 respectively. Counsel contended that, by purporting to conduct a re-evaluation of the appellant’s bid, the impugned decision of the High Court occasions a direct and quantifiable loss to the public purse of approximately USD 2,537,702.23 and USD 119,416.79 respectively for the two tenders. 157.Counsel cited the case of Minister of Social Development and Others v Phoenix Cash & Carry Pmb CC (supra) for the proposition that public tender process should be so interpreted and applied as to avoid both uncertainty and undue reliance on form, bearing in mind that the public interest is, after giving due weight to preferential points, best served by the selection of the tenderer who is best qualified by price. As counsel submitted, the learned Judge failed to weigh the import of Article 227(1) and the public interest, and granted orders that occasion prejudice to the public interest by transferring additional cost to the Kenyan public purse, and by delaying the supply, testing and commissioning of Terminal Tractors urgently required for the Port of Mombasa. 158.In rebuttal, counsel for the 2nd and 3rd respondents submitted that the appellant’s bid failed to meet several mandatory requirements of the tender, and was consequently disqualified at the preliminary evaluation stage in line with the provisions of section 79(1) and 80(2) of the Act; and that this is the very essence of according bidders in a public procurement process an equal footing upon which to compete in accordance with Article 227(1) of the Constitution. 159.Counsel further submitted that the appellant’s contention that it had a lower bid than the 4th and 5th respondents does not arise; that the appellant’s bid was non-responsive and was therefore not eligible for further consideration; that the 1st respondent’s decision undermined and unlawfully relaxed mandatory tender requirements exclusively in favour of the appellant, and introduced standards not found in the tender document in its decision; and that the learned Judge restored fidelity to Article 227(1) by correctly determining the 1st respondent’s decision to be illegal, irrational and ultra vires the powers of the 1st respondent as provided under section 173 of the Act. 160.On their part, counsel for the 4th respondent submitted that the learned Judge’s decision was firmly grounded on the constitutional requirement that public procurement must be conducted through a system that is fair, transparent, competitive and compliant with the law; that, by quashing the 1st respondent’s decision that allowed a non-responsive bidder to bypass mandatory requirements established under the Act and the Tender Document, the learned Judge was directly and actively enforcing the fairness, equity and transparency that Article 227(1) commands; and that a procurement outcome achieved by overlooking mandatory requirements and permitting a non- compliant bidder to bypass those requirements is not cost- effective, but that it is unlawful. 161.Counsel further submitted that the appellant’s argument that public interest in timely delivery should override compliance with mandatory procurement requirements is equally untenable. Relying on the case of Chief Executive Officer, the Public Service Superannuation Fund Board of Trustees v CPF Financial Services Limited & 2 others [2022] KECA 982 (KLR), counsel submitted that courts have consistently held that there can be no public interest in an illegality; and that administrative convenience and expediency cannot override express statutory commands governing responsiveness under Sections 79 and 80(2) of the Act. 162.According to counsel, it is not in the public interest to award a contract to a firm that failed to meet the mandatory requirements set forth under Section 79 of the Act. Counsel submitted that public interest is best served when the law is followed; and that any prejudice that may arise from the delay in the supply of the terminal tractors is a direct consequence of the appellant’s failure to submit a responsive bid. 163.We call to mind the provisions of Article 227 of the Constitution, which provides:227.Procurement of public goods and services(1)When a State organ or any other public entity contracts for goods or services, it shall do so in accordance with a system that is fair, equitable, transparent, competitive and cost-effective. 164.In Republic v Public Procurement Administrative Review Board & Intertek Testing Services (EA) Limited Ex-Parte SGS Kenya Limited [2017] KEHC 9223 (KLR), Mativo, J. (as he then was) persuasively observed that:“ 1.In our society, tendering plays a vital role in the delivery of goods and services. Large sums of public money are poured into the process and public bodies wield massive public power when choosing to award a tender. It is for this reason that the Constitution obliges organs of the state to ensure that a procurement process is fair, equitable, transparent, competitive and cost-effective. Where the procurement process is shown not to be so, courts have the power to intervene.” 165.In Republic v Kenya National Highways Authority & 2 others ex-parte Amica Business Solutions Limited [2016] KECA 142 (KLR), this Court held that:“The provisions of Articles 10 and 227of the Constitution are not among those non-derogable rights that cannot be limited. It is our view that they can be interpreted in a purposive manner that would take into account the circumstances and the justice of the case, without necessarily adhering to the textual interpretation. This does not mean that they should be disregarded at will. Far from that, all constitutional safeguards are meant to be observed particularly when they are meant to protect citizens from flagrant excesses by the Executive and those other organs that are charged with the responsibility to offer services to the people.Where these safeguards are ignored, then the courts must step in.” 166.In Al Ghurair Printing And Publishing Llc v Coalition For Reforms And Democracy & another; Public Procurement Administrative Review Board (Interested Party) [2017] KECA 565 (KLR), this Court considered the argument that the public interest of timeously preparing for the general election militated against the granting of juridical review orders quashing and preventing the implementation of an award of a tender for the supply and delivery of election materials made in violation of the provisions of the Act and the Election Laws (Amendment) Act, Musinga, JA. held that:“ 99.Finally, did public interest militate against the grant of the orders sought? I do not think so. I am in agreement with the learned judge that contravention of the Constitution or a statute cannot be justified on the plea of public interest.Under Article 165(3) (d) of the Constitution, the determination of any question respecting the interpretation of the Constitution, including the determination whether any law is inconsistent with or in contravention of the Constitution; or whether anything said to be done under the authority of the Constitution or of any law is inconsistent with, or in contravention of the Constitution, has to be undertaken with fidelity to the values, principles and the spirit of the Constitution. That includes any statutory amendment. Public interest can never override constitutionalism.” 167.In a similar case in Independent Electoral and Boundaries Commission (IEBC) v National Super Alliance (NASA) Kenya & 6 others [2017] KECA 436 (KLR), this Court appreciated the challenges faced by courts in crafting appropriate remedies to avert constitutional crisis when faced with time constraints and violation of constitutional values and principles. To this end, the Court held that, in crafting an appropriate relief, “a court should take into account public interest while balancing all relevant facts and circumstances.” 168.It is not lost on us that the focus of public procurement is not simply on securing the lowest-priced bid, but on selecting the lowest evaluated responsive tender. Accordingly, a tenderer whose bid does not meet the mandatory requirements is by no means responsive and, therefore, cannot be the proper benchmark for cost-effectiveness. The fact that the appellant’s tender amount was lower than that of the 4th and 5th respondents could not, of itself, sanitize the material deviations and omissions in its bid. 169.In its decision, the 1st respondent essentially overlooked the defects in the appellant’s bid and adopted an evaluation criteria foreign to the mandatory requirements of the tender document to the detriment of the other bidders. In the circumstances, the learned Judge’s intervention was justified. All in all, and as a matter of principle, a procurement decision that is prima facie cost- effective, but is otherwise unfair, opaque, discriminatory or non- competitive, cannot be termed as compliant with the provisions of Article 227(1) of the Constitution. 170.Article 227 contemplates assessment to ascertain responsiveness and qualification of a bid by first satisfying the mandatory requirements set out in the tender document before further evaluation pursuant to section 83(1) of the Act, which provides:83.Post-qualification(1)An evaluation committee may, after tender evaluation, but prior to the award of the tender, conduct due diligence and present the report in writing to confirm and verify the qualifications of the tenderer who submitted the lowest evaluated responsive tender to be awarded the contract in accordance with this Act. 171.Section 86(1) of the Act proceeds to set out the criteria on which a tender is viewed as successful and provides:86.Successful tender(1)The successful tender shall be the one who meets any one of the following as specified in the tender document—a.the tender with the lowest evaluated price;b.the responsive proposal with the highest score determined by the procuring entity by combining, for each proposal, in accordance with the procedures and criteria set out in the request for proposals, the scores assigned to the technical and financial proposals where Request for Proposals method is used;c.the tender with the lowest evaluated total cost of ownership; ord.the tender with the highest technical score, where a tender is to be evaluated based on procedures regulated by an Act of Parliament which provides guidelines for arriving at applicable professional charges:Provided that the provisions of this subsection shall not apply to section 141 of this Act 172.Nowhere on the record do we find evidence that the appellant demonstrated success of its bid in terms as set out in section 86 of the Act or at all. The unresponsiveness of its bid in consequence of failure to satisfy the afore-mentioned mandatory requirements had the effect of shutting the door on its face with the effect of barring its participation at the next stage of the procurement proceedings. Neither did the 1st respondent identify the presence of any circumstances suggestive of urgency underpinning the subject tender to the extent that the orders granted by the learned Judge had the potential to create an exceptional operational crisis at the Port of Mombasa as alluded to by the appellant. To our mind, the learned Judge’s decision was entirely consistent with the provisions of Article 227(1) and the Act in ensuring that the mandatory tender requirements were applied uniformly to all the submitted bids. In any event, public interest lay in preserving the integrity of the procurement process and ensuring that contracts are awarded strictly in accordance with the evaluation criteria stipulated in the tender document. 173.Having carefully scrutinised the record as put to us, we find nothing to suggest that the learned Judge’s decision was against the grain of Article 227 of the Constitution, and that settles the 7th issue before us. 174.Likewise, we find nothing on record to suggest that the learned Judge was at fault in granting the orders of certiorari and prohibition in favour of the 2nd, 3rd and 4th respondents. 175.Having carefully considered the record of the two appeals, the respective grounds on which they were anchored, the rival submissions of learned counsel, the cited authorities and the law, we find and hold:a.that both appeals be and are hereby found to be unmeritorious and, accordingly, are hereby dismissed.b.that, in consequence, the Judgments of the High Court of Kenya at Mombasa (Ngaah, J.) in Judicial Review Application No. E009 of 2026 delivered on 15th May 2026 and in Judicial Review Application No. E010 of 2026 delivered on 15th May 2026 and uploaded on the Court’s CTS system on 19th May 2026 be and are hereby upheld; andc.that costs in both appeals shall be borne by the appellant.It is so ordered. DATED AND DELIVERED AT MOMBASA THIS 24TH DAY OF JULY 2026.F. TUIYOTT………………………………… JUDGE OF APPEALDR. K. I. LAIBUTA CArb, FCIArb.…………………………………… JUDGE OF APPEALF. W. NGENYE-MACHARIA………………………………...JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR