[2011] KEHC 4289 (KLR)

[2011] KEHC 4289 (KLR)

The court found that the Public Procurement Oversight Authority failed to exercise its statutory discretion judicially and fairly by not investigating the applicant's procurement complaints or responding substantively to repeated requests. Although Section 102 of the Public Procurement and Disposal Act uses permissive language, the court held that in the circumstances, the respondent was under a duty to act upon the applicant's complaints to uphold the objectives of transparency, accountability, and public confidence in procurement. The respondent's inaction amounted to a failure to discharge its statutory mandate, and the applicant's legitimate expectation of a fair administrative...

Citation
[2011] KEHC 4289 (KLR)
Parties
Applicant: Getrio Insurance Brokers Limited; Respondent: Public Procurement Oversight Authority; Interested Party: Canopy Insurance Brokers Limited; Interested Party: Kenya Revenue Authority
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
1 April 2011
Case Number
Miscellaneous Civil Application 261 of 2010
Procedural Posture
Miscellaneous Application / Ruling on Application for Judicial Review Orders of Mandamus
Outcome
Application allowed. Orders of mandamus granted as prayed. Respondent to bear applicant's costs. Interested parties to bear their own costs.
Legal Topics
Judicial Review, Public Procurement, Mandamus Orders, Discretionary Powers, Statutory Duties
Source Language
English
Administrative Law Commercial and Corporate Judicial Review Public Procurement Mandamus Orders Discretionary Powers Statutory Duties

Case Brief

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Parties

Getrio Insurance Brokers Limited

Applicant

Public Procurement Oversight Authority

Respondent

Canopy Insurance Brokers Limited

Interested Party

Kenya Revenue Authority

Interested Party

Procedural Posture

Miscellaneous Application / Ruling on Application for Judicial Review Orders of Mandamus

Legal Issues

  1. 1 Whether the Public Procurement Oversight Authority failed to exercise its statutory mandate to investigate procurement complaints as required by the Public Procurement and Disposal Act, 2005.
  2. 2 Whether the court can compel the exercise of a discretionary statutory power by way of an order of mandamus in the circumstances of this case.
  3. 3 Whether the applicant was entitled to a fair, transparent, and accountable procurement process and timely communication of tender outcomes.

Ratio Decidendi

The court found that the Public Procurement Oversight Authority failed to exercise its statutory discretion judicially and fairly by not investigating the applicant's procurement complaints or responding substantively to repeated requests. Although Section 102 of the Public Procurement and Disposal Act uses permissive language, the court held that in the circumstances, the respondent was under a duty to act upon the applicant's complaints to uphold the objectives of transparency, accountability, and public confidence in procurement. The respondent's inaction amounted to a failure to discharge its statutory mandate, and the applicant's legitimate expectation of a fair administrative...

Court Disposition

Application allowed. Orders of mandamus granted as prayed. Respondent to bear applicant's costs. Interested parties to bear their own costs.

Orders

  • An order of mandamus is issued directing the Public Procurement Oversight Authority to carry out investigations into the circumstances surrounding and leading to the award of Tender No. KRA/HQS/DP002/2009/2010 for provision of Insurance Brokerage Services by the Kenya Revenue Authority, including whether KRA...
  • An order of mandamus is issued directing the Public Procurement Oversight Authority to investigate the award of Tender No. KRA/HQS/DP002/2009-2010 for Insurance Brokerage Services for Staff Pension Scheme by KRA, including compliance with the Act, Regulations, and directions.